When Forming a Business
is a Felony
Eric Franklin Amarante, University of Tennessee College of Law
Self-employment
is the most efficient way for undocumented people to better their economic
prospects. Thus, advocates often help immigrants to form and run
their own businesses. Because there is no citizenship requirement for many
business structures, this is a viable way to help undocumented people
become economically self-sufficient.
However, this practice may be illegal. Under 8 U.S. Code § 1324, “[a]ny
person who [knowingly] encourages … an alien to … reside in the
United States” is committing a felony. It is not clear if advice regarding
business formation constitutes such felonious encouragement because
interpretation of this statute has been uneven and conflicting.
This article will explore the breadth and limits of the federal
anti-harboring statute as well as the more recent state anti-harboring
statutes. This article will examine if helping undocumented entrepreneurs form
legal entities violates federal law, state law, or professional rules of
ethics
Should Criminal Courts
Borrow Structures and Remedies Used by Civil Courts to Address Spoliation of
Evidence?
John J. Francis, Washburn University School of Law
Video
evidence in criminal cases can originate from many sources. It may be recorded
by law enforcement officers, complaining witnesses, and bystanders. The right
to a fair trial demands that relevant video evidence be made available to
criminal defendants during discovery and at trial. Yet in criminal
prosecutions, video recordings are not always preserved or made available as
trial evidence.
A person who
intentionally destroys evidence in a criminal case may face criminal
prosecution, but there is not always a remedy for the defendant in the case
from which the evidence is missing. Without a showing of bad faith by police,
“failure to preserve potentially useful evidence does not constitute a denial
of due process of law.” Arizona v.
Youngblood, 488 U.S. 51, 58, (1988).
By contrast,
in civil matters, a party on notice that it has evidence relevant to current or
future litigation must take steps to preserve that evidence. Failure to do so
can result in clear sanctions. Zubulake v. UBS Warburg, 220 F.R.D. 212,
(2003).
This article
explores analytical structures and remedies used to prevent and remedy
spoliation of evidence in civil cases and suggests applying those procedures to
criminal cases. When freedom of a criminal defendant is on the line, there
should be clear procedures requiring preservation of evidence and predictable
sanctions when government actors fail to make that evidence available in
discovery and at trial