Delegation of Power.

— Administrative Agencies.

The authority to make administrative rules is not a delegation of legislative power, and those rules are not raised from an administrative to a legislative character because the violation thereof is punished as a public offense. United States v. Grimaud, 220 U.S. 506, 31 S. Ct. 480, 55 L. Ed. 563, 1911 U.S. LEXIS 1695 (1911).

— Executive Department.

Congress cannot delegate legislative power to the president. Marshall Field & Co. v. Clark, 143 U.S. 649, 12 S. Ct. 495, 36 L. Ed. 294, 1892 U.S. LEXIS 2046 (1892).

— Judicial Department.

Congress may not delegate to the courts, or to any other tribunal, powers which are strictly and exclusively legislative. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 6 L. Ed. 253, 1825 U.S. LEXIS 217 (1825).

— States.

The act continuing state regulation and taxation of the insurance business ( 15 U.S.C. §§ 1011, 1012) is not an unconstitutional delegation by congress of its powers to the states. Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 66 S. Ct. 1142, 90 L. Ed. 1342, 1946 U.S. LEXIS 3068 (1946).

Legislative Power.

The Constitution does not require that congress find for itself every fact upon which it desires to base legislative action or that it make for itself detailed determinations which it has declared to be prerequisite to the application of the legislative policy to particular facts and circumstances which are impossible for congress itself properly to investigate. Yakus v. United States, 321 U.S. 414, 64 S. Ct. 660, 88 L. Ed. 834, 1944 U.S. LEXIS 1311 (1944).

Apportionment of Representatives.

The power to apportion representatives after enumeration is made is not found among the express powers given congress. Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 10 L. Ed. 1060, 1842 U.S. LEXIS 387 (1842); Billings v. United States, 232 U.S. 261, 34 S. Ct. 421, 58 L. Ed. 596, 1914 U.S. LEXIS 1351 (1914).

Direct Taxes.

Direct taxes within the meaning of the third paragraph are only capitation taxes, as expressed in the Constitution, and taxes on real estate. Springer v. United States, 102 U.S. 586, 26 L. Ed. 253, 1880 U.S. LEXIS 2066 (1881).

Impeachment.

The house of representatives has the sole right to impeach officers of the government and may compel attendance of witnesses. Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377, 1880 U.S. LEXIS 2104 (1881).

Qualifications of Electors.

— Primaries.

The right to vote in a primary election without discrimination by the state, like the right to vote in a general election, is a right secured by the Constitution. Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757, 88 L. Ed. 987, 1944 U.S. LEXIS 875 (1944).

The recognized legitimate interest of the state in preventing the “raiding” of the primaries of one political party by the voters of another is not sufficiently compelling to justify the unreasonable and unduly restrictive provisions of §§ 17-15-24 and former 17-16-8, which prohibited a switch in party affiliation during a 26-month period encompassing two primary elections, and these sections were unconstitutional under U.S. Const., Art. 1, § 2 and U.S. Const., Amends. I and XIV. Yale v. Curvin, 345 F. Supp. 447, 1972 U.S. Dist. LEXIS 12717 (D.R.I. 1972).

By preventing a member of a political party that does not nominate candidates for federal office from voting as member of that party in the primary of another party that does nominate federal candidates, § 17-15-24 did not violate the qualifications clause. Cool Moose Party v. Rhode Island, 6 F. Supp. 2d 116, 1998 U.S. Dist. LEXIS 8033 (D.R.I. 1998), aff'd, 183 F.3d 80, 1999 U.S. App. LEXIS 20800 (1st Cir. 1999).

The prohibition contained in § 17-19-31 against write-in voting in primary elections does not violate the qualifications clause. Cool Moose Party v. Rhode Island, 6 F. Supp. 2d 116, 1998 U.S. Dist. LEXIS 8033 (D.R.I. 1998), aff'd, 183 F.3d 80, 1999 U.S. App. LEXIS 20800 (1st Cir. 1999).

— U.S. Congress.

The right to vote for members of congress of the United States is not derived merely from the Constitution and laws of the state in which they are chosen, but has its foundation in the federal Constitution. Ex parte Yarbrough, 110 U.S. 651, 4 S. Ct. 152, 28 L. Ed. 274, 1884 U.S. LEXIS 1726 (1884).

A person qualified by age, residence and citizenship in a given city or town in Rhode Island producing a certificate of ownership of real estate in another city or town, in accordance with provisions of former R.I. Const., Art. II, Sec. 1 (see now R.I. Const., Art. II, Sec. 1 ), was qualified to vote for representatives in congress, since he was qualified to vote for members of the general assembly of the state. In re Qualification of Voters, 19 R.I. 614 , 35 A. 147 (1896).

Qualifications of Representatives.

The word “state” is used in the second paragraph in its geographical sense. Texas v. White, 74 U.S. (1 Wall.) 700, 19 L. Ed. 227, 1868 U.S. LEXIS 1056 (1869), overruled in part, Morgan v. United States, 113 U.S. 476, 5 S. Ct. 588, 28 L. Ed. 1044, 1885 U.S. LEXIS 1698 (1885).

Vacancies.

A vacancy happened within the meaning of the fourth paragraph when a person who had been declared elected by the general assembly was found by congress not to have been elected, and the governor had the power to issue a writ of election. In re Representation Vacancy, 15 R.I. 621 , 9 A. 222, 1887 R.I. LEXIS 29 (1887).

Impeachment Proceedings.

The senate has the sole right to try impeachments and may compel attendance of witnesses. Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377, 1880 U.S. LEXIS 2104 (1881).

Officers.

A standing order of the senate having authorized the sergeant at arms to appoint deputies “to serve process or perform other duties” and declared that those deputies shall be “officers of the senate”, and the office of deputy having been recognized by congress by appropriations for compensation, such a deputy had the power to serve a subpoena directed to the sergeant at arms. McGrain v. Daugherty, 273 U.S. 135, 47 S. Ct. 319, 71 L. Ed. 580, 1927 U.S. LEXIS 985 (1927).

Apportionment Acts.

A legislative apportionment act is subject to veto by the governor, especially where there has been a practical construction in the particular state by which the word “legislature” has been treated as applying to the lawmaking power of the state, as evidenced by submission of former apportionment acts to the governor for his approval. Smiley v. Holm, 285 U.S. 355, 52 S. Ct. 397, 76 L. Ed. 795, 1932 U.S. LEXIS 440 (1932); Koenig v. Flynn, 285 U.S. 375, 52 S. Ct. 403, 76 L. Ed. 805, 1932 U.S. LEXIS 441 (1932); Carroll v. Becker, 285 U.S. 380, 52 S. Ct. 402, 76 L. Ed. 807, 1932 U.S. LEXIS 442 (1932).

Elections.

— Power of Congress.

In making regulations for the election of members of congress, it is not necessary for that body to assume entire and exclusive control, though it has supervisory control over the subject, and may either make entirely new regulations, add to, alter, or modify the state regulations. Ex parte Siebold, 100 U.S. 371, 25 L. Ed. 717, 1879 U.S. LEXIS 1833 (1880).

Congress has power to legislate for the protection of all persons in their right to vote in national elections. Ex parte Yarbrough, 110 U.S. 651, 4 S. Ct. 152, 28 L. Ed. 274, 1884 U.S. LEXIS 1726 (1884).

— Power of State Legislature.

A plurality of electors could elect a member of congress in a special election under P.S. 1882, ch. 11, §§ 6 and 7, since this section grants to state legislatures the power to regulate elections in the absence of federal statutes; and former R.I. Const., Art. VIII, Sec. 10 , did not apply to elections of members of congress. In re Plurality Elections, 15 R.I. 617 , 8 A. 881, 1887 R.I. LEXIS 28 (1887).

If the general assembly determines that there is a failure to elect a member of the house of representatives at the regular biennial election, it has the duty of ordering a new election, and the governor should withhold action as long as the general assembly is in session. In re Congressional Election, 15 R.I. 624 , 9 A. 224, 1887 R.I. LEXIS 30 (1887).

The provisions of P.S. 1882, ch. 11, § 6, that in the case of a failure to elect a representative the general assembly shall order a new election, met the requirements of this section. In re Representative Election, 17 R.I. 820 , 21 A. 963, 1891 R.I. LEXIS 90 (1891).

The supreme court of Rhode Island had no jurisdiction to decide whether the general assembly, acting under former R.I. Const., Art. II, Sec. 6 (see now R.I. Const., Art. II, Sec. 1 ), could give absent electors the right to vote for United States senator, or whether such power was conferred by this section, in view of the fact that the United States senate is made the sole judge of the election of its members by § 5 of this article. In re Opinion to Governor, 41 R.I. 209 , 103 A. 513 (1918).

— Right to Vote.

The right to vote in a primary election for the nomination of candidates without discrimination by the state, like the right to vote in a general election, is a right secured by the Constitution. Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757, 88 L. Ed. 987, 1944 U.S. LEXIS 875 (1944).

Adjournment.

The adjournment referred to in this section is not limited to a final adjournment of a congress which terminates its legislative existence. Pocket Veto Case, 279 U.S. 655, 49 S. Ct. 463, 73 L. Ed. 894, 1929 U.S. LEXIS 364 (1929).

Attendance.

The penalty which each house is authorized to inflict in order to compel attendance of absent members may be imprisonment, and may be for violation of some order or standing rule. Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377, 1880 U.S. LEXIS 2104 (1881).

Contempt.

The refusal to answer pertinent questions in a matter of inquiry within the jurisdiction of the senate constitutes contempt against the senate. In re Chapman, 166 U.S. 661, 17 S. Ct. 677, 41 L. Ed. 1154, 1897 U.S. LEXIS 2058 (1897).

In either the house or senate, the limit of punishment for contempt without criminal prosecution is imprisonment for the duration of the session at which the contempt occurs. Marshall v. Gordon, 243 U.S. 521, 37 S. Ct. 448, 61 L. Ed. 881, 1917 U.S. LEXIS 1970 (1917).

Election.

The supreme court of Rhode Island had no jurisdiction to decide whether the general assembly, acting under former R.I. Const., Art. II, Sec. 6 (see now R.I. Const., Art. II, Sec. 1 ), could give absent electors the right to vote for United States senator, or whether such power was conferred by § 4 of this article, in view of the fact that the United States senate is made the sole judge of the election of its members by this section. In re Opinion to Governor, 41 R.I. 209 , 103 A. 513 (1918).

Expulsion.

The right to expel extends to all cases where the offense is such as in the judgment of the senate is inconsistent with the trust and duty of a member. In re Chapman, 166 U.S. 661, 17 S. Ct. 677, 41 L. Ed. 1154, 1897 U.S. LEXIS 2058 (1897).

Journal.

When a duly enrolled bill is completely authenticated as a law of the United States, no reference can be had to the journal of either house, to reports of committees, or documents printed by authority of congress, to show that the bill, as finally enacted, varies from the act as authenticated. Marshall Field & Co. v. Clark, 143 U.S. 649, 12 S. Ct. 495, 36 L. Ed. 294, 1892 U.S. LEXIS 2046 (1892).

Quorum.

When a quorum is present, the votes of the majority of the quorum are sufficient to pass a bill. United States v. Ballin, 144 U.S. 1, 12 S. Ct. 507, 36 L. Ed. 321, 1892 U.S. LEXIS 2047 (1892).

A rule of the house of representatives providing that the names of members present and not voting may be counted in determining the presence of a quorum, is a valid exercise of the power to determine the rules of its proceedings. United States v. Ballin, 144 U.S. 1, 12 S. Ct. 507, 36 L. Ed. 321, 1892 U.S. LEXIS 2047 (1892).

Compensation.

A member who has been seated is prima facie entitled to his salary. Page v. United States, 127 U.S. 67, 8 S. Ct. 1026, 32 L. Ed. 65, 1888 U.S. LEXIS 1965 (1888).

Immunity for State Legislators.

While this section applies only to Congress, state legislators enjoy a parallel privilege grounded in common law, but essentially coterminous with the federal constitutional immunity. National Ass'n of Social Workers v. Harwood, 69 F.3d 622, 1995 U.S. App. LEXIS 31828 (1st Cir. 1995).

City council member’s deposition was properly barred on the basis of legislative immunity because the information sought from the member came to the member by virtue of the member’s office and formed part of the consideration and approval of the ordinances in question. Cranston Police Retirees Action Comm. v. City of Cranston, 208 A.3d 557, 2019 R.I. LEXIS 80 (R.I.), cert. denied, 140 S. Ct. 652, 205 L. Ed. 2d 386, 2019 U.S. LEXIS 7455 (2019).

Privilege From Arrest.

The exemption from arrest extends only to a reasonable time for going and coming from a regular congressional session, and a congressman cannot claim the exemption during adjournment of congress even though he is serving on a committee which is active during the adjournment. Hoppin v. Jenckes, 8 R.I. 453 , 1867 R.I. LEXIS 7 (1867).

The terms “treason, felony, and breach of the peace” excepts from the operation of the privilege all criminal offenses and the privilege of exemption from legal process is the same as at common law. Williamson v. United States, 207 U.S. 425, 28 S. Ct. 163, 52 L. Ed. 278, 1908 U.S. LEXIS 1411 (1908).

Approval by President.

The president is only required to sign a bill which he approves, and is not required to affix a date thereto. Gardner v. Collector, 73 U.S. (6 Wall.) 499, 18 L. Ed. 890, 1867 U.S. LEXIS 998 (1868).

The date of the president’s approval of a bill is the date on which it becomes a law. Gardner v. Collector, 73 U.S. (6 Wall.) 499, 18 L. Ed. 890, 1867 U.S. LEXIS 998 (1868).

The president in approving bills, is not a constituent part of congress, and he may approve a bill within the time limited, though before such approval congress has adjourned. Edwards v. United States, 286 U.S. 482, 52 S. Ct. 627, 76 L. Ed. 1239, 1932 U.S. LEXIS 618 (1932).

Resolutions.

A joint resolution takes effect on approval by the president, and when so approved has all of the characteristics and effect of an act of congress. United States ex rel. Levey v. Stockslager, 129 U.S. 470, 9 S. Ct. 382, 32 L. Ed. 785, 1889 U.S. LEXIS 1703 (1889).

Revenue Bills.

The limitation of the first paragraph is confined to bills to levy taxes in the strict sense of the words, and it does not extend to bills for other purposes which incidentally create revenue. United States v. Norton, 91 U.S. 566, 23 L. Ed. 454, 1875 U.S. LEXIS 1406 (1876).

The senate could amend a revenue bill so as to substitute a tax on corporations for inheritance taxation contained in the original bill from the house. Flint v. Stone Tracy Co., 220 U.S. 107, 31 S. Ct. 342, 55 L. Ed. 389, 1911 U.S. LEXIS 1664 (1911).

Veto.

The words “two-thirds of the house” means two-thirds of the membership present, there being present at least a quorum. Missouri Pac. Ry. v. Kansas, 248 U.S. 276, 39 S. Ct. 93, 63 L. Ed. 239, 1919 U.S. LEXIS 2308 (1919).

Army.

Full power of legislation in the matter of size of the army is with congress. Street v. United States, 133 U.S. 299, 10 S. Ct. 309, 33 L. Ed. 631, 1890 U.S. LEXIS 1911 (1890).

Congress may confer upon minors the privilege of serving in land or naval forces or draft them upon such terms as it may deem expedient and just. United States v. Williams, 302 U.S. 46, 58 S. Ct. 81, 82 L. Ed. 39, 1937 U.S. LEXIS 529 (1937).

Congress has the power under the Constitution to compel military service of a citizen in case of need whether in peacetime or wartime, if it declares that it is imperative or necessary, or that an emergency exists requiring the raising and support of an army. United States v. Cornell, 36 F. Supp. 81, 1940 U.S. Dist. LEXIS 2223 (D. Idaho 1940).

Authority Over Acquisitions.

— Acquisitions.

A cession of jurisdiction by a state to the United States is to be exercised only so long as the place continues to be used for the public purposes for which the property was acquired, and when it ceases to be so used, the jurisdiction reverts to the state. Ft. Leavenworth R.R. v. Lowe, 114 U.S. 525, 5 S. Ct. 995, 29 L. Ed. 264, 1885 U.S. LEXIS 1790 (1885).

The United States has the constitutional right to exercise jurisdiction over territory acquired for purposes other than those specified in this section. Collins v. Yosemite Park & Curry Co., 304 U.S. 518, 58 S. Ct. 1009, 82 L. Ed. 1502, 1938 U.S. LEXIS 1030 (1938).

— District of Columbia.

Congress in creating the District of Columbia a body corporate for municipal purposes could only authorize it to exercise municipal powers. Stoutenburgh v. Hennick, 129 U.S. 141, 9 S. Ct. 256, 32 L. Ed. 637, 1889 U.S. LEXIS 1671 (1889).

Congress is the supreme legislative body of the District of Columbia. Metropolitan R.R. v. District of Columbia, 132 U.S. 1, 10 S. Ct. 19, 33 L. Ed. 231, 1889 U.S. LEXIS 1834 (1889).

The United States by virtue of the seat of government clause possesses not only political, but municipal authority over the District of Columbia, and may condemn lands lying within the district for a public park. Shoemaker v. United States, 147 U.S. 282, 13 S. Ct. 361, 37 L. Ed. 170, 1893 U.S. LEXIS 4043 (1893).

The power of congress to exercise exclusive jurisdiction over the District of Columbia includes the power of taxation. Parsons v. District of Columbia, 170 U.S. 45, 18 S. Ct. 521, 42 L. Ed. 943, 1898 U.S. LEXIS 1528 (1898).

Congress has entire control over the District of Columbia for every purpose of government, national and local, and may vest and distribute the judicial authority in and among courts and magistrates, and regulate judicial proceedings before them, as it may think fit so long as it does not contravene the Constitution. Capital Traction Co. v. Hof, 174 U.S. 1, 19 S. Ct. 580, 43 L. Ed. 873, 1899 U.S. LEXIS 1480 (1899).

In the exercise of legislative powers relative to the District of Columbia, congress is subject to the provisions of the Fifth Amendment. Wight v. Davidson, 181 U.S. 371, 21 S. Ct. 616, 45 L. Ed. 900, 1901 U.S. LEXIS 1369 (1901).

— “Military Reservations.”

Army blankets purchased from United States were not subject to state taxation while still in government storehouse on a military reservation. Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S. Ct. 455, 74 L. Ed. 1091, 1930 U.S. LEXIS 413 (1930).

Gasoline sold on a military reservation was not subject to state gasoline tax. Standard Oil Co. v. California, 291 U.S. 242, 54 S. Ct. 381, 78 L. Ed. 775, 1934 U.S. LEXIS 501 (1934).

— Navy Yards and Docks.

A state in ceding jurisdiction over land purchased by the government for a navy yard may provide that the jurisdiction of the United States shall be retained only while the property is used for the designated purposes. Palmer v. Barrett, 162 U.S. 399, 16 S. Ct. 837, 40 L. Ed. 1015, 1896 U.S. LEXIS 2214 (1896).

A state law imposing a penalty for failure to transmit a telegram did not apply to a message addressed to a person on board a government vessel lying in a government navy yard. Western Union Tel. Co. v. Chiles, 214 U.S. 274, 29 S. Ct. 613, 53 L. Ed. 994, 1909 U.S. LEXIS 1916 (1909).

— “Needful Buildings.”

Post offices are included in the term “other needful buildings”. Battle v. United States, 209 U.S. 36, 28 S. Ct. 422, 52 L. Ed. 670, 1908 U.S. LEXIS 1749 (1908).

Locks and dams are “needful buildings”. James v. Dravo Contracting Co., 302 U.S. 134, 58 S. Ct. 208, 82 L. Ed. 155, 1937 U.S. LEXIS 1131 (1937).

Bankruptcy.

The uniformity required by the clause relating to bankruptcy is geographical and not personal. Hanover Nat'l Bank v. Moyses, 186 U.S. 181, 22 S. Ct. 857, 46 L. Ed. 1113, 1902 U.S. LEXIS 885 (1902).

This section only bars states from enacting insolvency statutes contrary to provisions of acts of congress under the bankruptcy clause. Lace v. Smith, 34 R.I. 1 , 82 A. 268, 1912 R.I. LEXIS 26 (1912).

G.L. 1923, ch. 390, which permitted involuntary insolvency proceedings against farmers, was not void on the ground that congress had enacted a National Bankruptcy Act, since National Bankruptcy Act exempted farmers from involuntary provisions. Lace v. Smith, 34 R.I. 1 , 82 A. 268, 1912 R.I. LEXIS 26 (1912).

Congress had power to wrest review of standing trustees’ fees and expenses from the bankruptcy courts, entrusting such oversight to the Attorney General, in trustee “pilot program” districts. In re Savage, 67 B.R. 700, 1986 U.S. Dist. LEXIS 17335 (D.R.I. 1986).

Borrowing Power.

The control of the national government over the powers granted by the borrowing clause is plenary and exclusive. In re Tarble's Case, 80 U.S. (13 Wall.) 397, 20 L. Ed. 597, 1871 U.S. LEXIS 1353 (1872).

The power to borrow money on the credit of the United States is the power to raise money for the public use on a pledge of the public credit, and may be exercised to meet either present or anticipated expenses and liabilities of the government. Legal Tender Case (Julliard v. Greenman), 110 U.S. 421, 4 S. Ct. 122, 28 L. Ed. 204, 1884 U.S. LEXIS 1712 (1884).

Coinage.

Congress may restrain the circulation as money of any notes not issued under its authority. Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533, 19 L. Ed. 482, 1868 U.S. LEXIS 1130 (1869).

Under the coinage clause congress had power to appropriate to the government outstanding gold bullion, gold coins and gold certificates, and to compel all residents of this country to deliver unto the government all gold bullion, coins and certificates in their possession. Nortz v. United States, 294 U.S. 317, 55 S. Ct. 428, 79 L. Ed. 907, 1935 U.S. LEXIS 264 (1935).

Under exercise of its constitutional right to coin money, regulate the value thereof, and of foreign coin, congress may forbid holders of bonds payable in foreign currency from demanding payment in such currency, although such payment was provided for in the bonds. Guaranty Trust Co. v. Henwood, 307 U.S. 247, 59 S. Ct. 847, 83 L. Ed. 1266, 1939 U.S. LEXIS 1071 (1939).

Commerce.

A state may exclude from its markets any compound manufactured in another state, which has been artificially colored or adulterated to cause it to look like an article of food in general use. Plumley v. Massachusetts, 155 U.S. 461, 15 S. Ct. 154, 39 L. Ed. 223, 1894 U.S. LEXIS 2292 (1894).

Accepting the testimony of one expert witness as against another in allocating interstate and intrastate business of utility did not violate the commerce clause. Narragansett Elec. Co. v. Kennelly, 88 R.I. 56 , 143 A.2d 709, 1958 R.I. LEXIS 107 (1958).

The commerce clause of the federal constitution is a restriction on state regulation of interstate commerce. Mossberg-Hubbard Div. v. Norberg, 432 A.2d 1176, 1981 R.I. LEXIS 1232 (R.I. 1981).

States are not prevented from propounding laws which merely affect interstate commerce provided that the laws serve a legitimate state interest and they do not discriminate against interstate commerce. National Tank Truck Carriers, Inc. v. Burke, 535 F. Supp. 509, 1982 U.S. Dist. LEXIS 17473 (D.R.I. 1982), aff'd, 698 F.2d 559, 1983 U.S. App. LEXIS 30885 (1st Cir. 1983).

Section 23-19-13.1 , which prohibits the deposit of out-of-state solid waste at the central landfill, does not violate the Commerce Clause, because other landfills could be created to accept out-of-state solid waste. Lefrancois v. Rhode Island, 669 F. Supp. 1204, 1987 U.S. Dist. LEXIS 8780 (D.R.I. 1987).

Congress may regulate three categories of activity under the Commerce Clause: 1) Congress may regulate the use of the channels of interstate commerce; 2) Congress may regulate and protect the instrumentalities of interstate commerce, even though the threat may come only from intrastate activities; and 3) Congress may regulate those activities which substantially affect interstate commerce. United States v. Lewis, 936 F. Supp. 1093, 1996 U.S. Dist. LEXIS 13228 (D.R.I. 1996).

— Businesses and Professions.

Section 11-27-2 , by defining all debt collection activities as the practice of law and limiting those activities to members of the Rhode Island bar, places an unconstitutional burden on interstate commerce because it bars out-of-staters from offering a commercial service within its borders and confers the right to provide that service and to reap the associated economic benefit upon a class largely composed of Rhode Island citizens. National Revenue Corp. v. Violet, 807 F.2d 285, 1986 U.S. App. LEXIS 34811 (1st Cir. 1986).

The state’s interpretation of § 31-5.1-4.2 as limiting protest of a new dealership to dealers within a twenty mile radius of the proposed site does not violate the Commerce Clause. Rhode Island is merely applying its law to those subject to its jurisdiction and regulation, rather than extraterritorially, and this interpretation of Rhode Island law neither burdens nor discriminates against interstate commerce. Fireside Nissan, Inc. v. Fanning, 30 F.3d 206, 1994 U.S. App. LEXIS 18226 (1st Cir. 1994).

— Carriers.

A statute which forbids discrimination by common carriers in their charges for transportation, and which applies to contracts made in Rhode Island for transportation of goods outside of the state as well as within the state, does not violate this section of the Constitution since the statute does not obstruct or delay commerce. Providence Coal Co. v. Providence & Worcester R.R., 15 R.I. 303 , 4 A. 394, 1886 R.I. LEXIS 24 (1886).

The provisions of G.L. 1923, ch. 254, § 3 [§ 39-13-3 ], authorizing the public utilities commission to specify the route over which a motor vehicle engaged in interstate commerce may operate, the number of passengers it may carry at any one time, and the service it may render, are in the interest of public safety and conservation of highways and do not place an unnecessary restraint on interstate commerce contrary to the commerce clause. Newport Elec. Corp. v. Oakley, 47 R.I. 19 , 129 A. 613, 1925 R.I. LEXIS 55 (1925).

Public utilities commission cannot refuse a certificate under G.L. 1923, ch. 254, § 3 [§ 39-13-4 ] to a person about to engage in interstate commerce on the ground that he is not “a citizen resident within the state”. Newport Elec. Corp. v. Oakley, 47 R.I. 19 , 129 A. 613, 1925 R.I. LEXIS 55 (1925).

Congress not having legislated on the subject of transportation by motor buses, the state had power to make reasonable regulations, not discriminatory, with respect to termini of interstate motor bus carriers. Phillips v. Moulton, 54 F.2d 119, 1931 U.S. Dist. LEXIS 1864 (D.R.I. 1931).

Division of public utilities could authorize transfer of motor carrier certificate from resident of state to foreign corporation which had purchased same, despite provisions of G.L. 1938, ch 125, § 3 [§ 39-13-4 ] and former R.I. Const., Amend. 9, Sec. 1 , requiring corporation to be created by special act of general assembly, (see now R.I. Const., Art. VI, Sec. 14 ) where interstate commerce commission had approved the transfer. New England Greyhound Lines, Inc. v. Powers, 108 F. Supp. 953, 1952 U.S. Dist. LEXIS 1961 (D.R.I. 1952) (decided prior to 1960 amendment of § 39-13-4 ).

— Electricity.

Where an electric company agreed to furnish electric current outside the state at a rate involving a loss and which was to the disadvantage of the company’s patrons within the state, an order of the state public utilities commission establishing a rate for the purpose of eliminating that discrimination was invalid as a burden on interstate commerce. Public Utilities Comm'm v. Attleboro Steam & Elec. Co., 269 U.S. 546, 46 S. Ct. 103, 70 L. Ed. 404, 1925 U.S. LEXIS 85 (1925).

— Fish and Oysters.

A state law relating to the manner of taking oysters authorizing seizure, detention and forfeiture of vessels enrolled and licensed under the laws of the United States was not invalid. Smith v. Maryland, 59 U.S. (18 How.) 71, 15 L. Ed. 269, 1855 U.S. LEXIS 663 (1855).

A state can grant its citizens the exclusive use of lands covered by water for raising oysters, and prohibit citizens of other states from doing so, without violating the commerce clause. McCready v. Virginia, 94 U.S. 391, 24 L. Ed. 248, 1876 U.S. LEXIS 1875 (1877).

State statute providing an oyster inspection tax imposes a burden on interstate commerce and is unconstitutional. D.E. Foote & Co. v. Stanley, 232 U.S. 494, 34 S. Ct. 377, 58 L. Ed. 698, 1914 U.S. LEXIS 1381 (1914).

State statute requiring oyster licensees to deliver not less than one-tenth of shells to state for propagation of oyster beds is not interference with interstate commerce. Leonard & Leonard v. Earle, 279 U.S. 392, 49 S. Ct. 372, 73 L. Ed. 754, 1929 U.S. LEXIS 54 (1929).

Right to fish in waters of the state is not protected by the commerce clause. Thomson v. Dana, 52 F.2d 759, 1931 U.S. Dist. LEXIS 1695 (D. Or. 1931), aff'd, 285 U.S. 529, 52 S. Ct. 409, 76 L. Ed. 925, 1932 U.S. LEXIS 469 (1932).

Regulation of the shellfish industry by the Marine Fisheries Council serves legitimate state interests and does not overtax or meaningfully impose upon interstate commerce. Healey v. Bendick, 628 F. Supp. 681, 1986 U.S. Dist. LEXIS 29398 (D.R.I. 1986).

— Health and Safety.

The enforcement of G.L. 1923, ch. 124, § 8, being an exercise of police power for the inspection of boilers in the interest of public health and safety, does not violate the commerce clause, even though the boiler to be inspected is on a dredge doing contract work for the United States. State v. Leary, 46 R.I. 197 , 125 A. 353, 1924 R.I. LEXIS 74 (1924).

— Indians.

Tribal sovereignty is subject to limitations imposed by Congress pursuant to the authority vested in it by the Indian Commerce Clause. Narragansett Indian Tribe v. Narragansett Elec. Co., 878 F. Supp. 349, 1995 U.S. Dist. LEXIS 2356 (D.R.I. 1995), aff'd in part, rev'd in part, 89 F.3d 908, 1996 U.S. App. LEXIS 17848 (1st Cir. 1996).

State authority is limited both by the doctrine of tribal sovereignty and by any exercise of Congress’s broad plenary power to regulate tribal affairs, which may preempt state jurisdiction. Narragansett Indian Tribe v. Narragansett Elec. Co., 878 F. Supp. 349, 1995 U.S. Dist. LEXIS 2356 (D.R.I. 1995), aff'd in part, rev'd in part, 89 F.3d 908, 1996 U.S. App. LEXIS 17848 (1st Cir. 1996).

When the activity of Indians is conducted on reservations, the applicability of state law turns on analysis of the respective federal, tribal and state interests at stake. Narragansett Indian Tribe v. Narragansett Elec. Co., 878 F. Supp. 349, 1995 U.S. Dist. LEXIS 2356 (D.R.I. 1995), aff'd in part, rev'd in part, 89 F.3d 908, 1996 U.S. App. LEXIS 17848 (1st Cir. 1996).

— Insurance.

State tax imposed on foreign insurance companies based on business done in the state without reference to its interstate or local character, was not unconstitutional, although no similar tax was imposed on domestic corporations. Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 66 S. Ct. 1142, 90 L. Ed. 1342, 1946 U.S. LEXIS 3068 (1946).

— Intoxicating Liquor.

An act which authorized towns and cities to grant licenses for selling rum, wine and strong drink within said towns and cities [Dig. 1844, p. 495] did not violate the commerce clause as the minute an importer sells the liquor or strong drink it ceases to be in interstate commerce, and becomes a part of the trade of the state. State v. Peckham, 3 R.I. 289 , 1838 R.I. LEXIS 2 (1838).

G.S. 1872, ch. 79 [G.L. 1909, ch. 123], which prohibited the sale without a license of ale, wine and rum not held for the purpose of export, was void as to importers selling in the original package, but the entire chapter was not void merely because it did not make an exception in favor of importers. State v. Amery, 12 R.I. 64 , 1878 R.I. LEXIS 19 (1878).

Since P.L. 1886, ch. 596, § 1, as amended by P.L. 1887, ch. 634, § 1, did not apply to liquors kept by a person for his own use, not for sale, nor to liquors simply stored in this state, though intended to be exported for sale, nor to liquors transporting through this state for sale in another state, it did not violate the provisions of the commerce clause. State v. Fitzpatrick, 16 R.I. 54 , 11 A. 767, 1888 R.I. LEXIS 3 (1888).

Former § 3-8-7 , which banned all off-premises liquor-price advertising by liquor-license holders, did not offend the commerce clause. S & S Liquor Mart v. Pastore, 497 A.2d 729, 1985 R.I. LEXIS 585 (R.I. 1985).

— Motor Vehicles.

A state may not impose a tax that subjects interstate commerce to the burden of multiple taxation. Mossberg-Hubbard Div. v. Norberg, 432 A.2d 1176, 1981 R.I. LEXIS 1232 (R.I. 1981).

The transfer of goods by a Rhode Island manufacturer in Rhode Island to an out-of-state customer f.o.b. the customer’s plant and the transportation of those goods by vehicles owned by the customer did constitute transfers of title or possession such as to constitute taxable sales under § 44-18-7 and absent a showing that the Rhode Island manufacturer was being subjected to multiple taxation on its interstate business, imposition of the Rhode Island sales tax on the transaction did not violate the commerce clause of the United States Constitution. Mossberg-Hubbard Div. v. Norberg, 432 A.2d 1176, 1981 R.I. LEXIS 1232 (R.I. 1981).

Regulations promulgated pursuant to state law and concerning two-way radios, immediate reporting of accidents, illumination of headlights and inspections of vehicles transporting liquified natural and petroleum gases are reasonable means of serving legitimate state interests and are not violative of the commerce clause. National Tank Truck Carriers, Inc. v. Burke, 535 F. Supp. 509, 1982 U.S. Dist. LEXIS 17473 (D.R.I. 1982), aff'd, 698 F.2d 559, 1983 U.S. App. LEXIS 30885 (1st Cir. 1983).

The decal-fee requirement under § 31-36.1-3 as it existed between 1982 and 1987, which applied the fee only to nonresident motor carriers, did not constitute an invalid discriminatory tax under the federal commerce clause, given that such fee requirement assisted in the administration of the taxation scheme under the Fuel Use Reporting Law (chapter 36.1 of title 31) and was fairly related to the services provided by Rhode Island in maintaining and repairing highways, and that resident motor carriers were subject to comparable identification requirements by complying with the annual registration requirements for resident vehicle owners. Seibert v. Clark, 619 A.2d 1108, 1993 R.I. LEXIS 27 (R.I. 1993).

— Navigable Waters.

Upon the admission of a state to the Union, title of the United States to land therein underlying navigable waters passes to the state, subject only to the paramount power of the federal government to control such waters for navigation in interstate and foreign commerce. United States v. Oregon, 295 U.S. 1, 55 S. Ct. 610, 79 L. Ed. 1267, 1935 U.S. LEXIS 1086 (1935).

A state is not barred by this section from imposing a use tax on cartons, packing materials and truck parts purchased outside the state and brought into the state for use in the business of moving household goods from locations in the state to locations outside the state. Safeway Sys. v. Norberg, 115 R.I. 127 , 341 A.2d 47, 1975 R.I. LEXIS 1130 (1975).

— Taxation by State.

Where the power of a state to impose a use tax is involved, the mere fact that property is used for interstate commerce or has come into an owner’s possession as a result of interstate commerce does not necessarily act as a constitutional bar to the imposition of the tax. Great Lakes Dredge & Dock Co. v. Norberg, 117 R.I. 600 , 369 A.2d 1101, 1977 R.I. LEXIS 1730 (1977).

Where a taxpayer’s activities relate to interstate commerce, a state use tax may be imposed where the local use of the property is sufficiently outside the stream of interstate commerce so that its taxation does not unduly impinge thereon. Great Lakes Dredge & Dock Co. v. Norberg, 117 R.I. 600 , 369 A.2d 1101, 1977 R.I. LEXIS 1730 (1977).

Section 44-18-11 exempts from taxation any property in the flow of interstate commerce which enters Rhode Island from out of state and, with only minor interruption, continues on its interstate journey. Randall v. Norberg, 121 R.I. 714 , 403 A.2d 240, 1979 R.I. LEXIS 1976 (1979).

A taxable event under § 44-18-11 occurs when a stoppage in transit is essential neither to the interstate journey nor for the purposes of safety and convenience in the course of that journey, and under such facts the property in question thereby loses its interstate character and a state may tax the privilege of exercising ownership rights without running afoul of the constitutional prohibition against state taxation of interstate commerce. Randall v. Norberg, 121 R.I. 714 , 403 A.2d 240, 1979 R.I. LEXIS 1976 (1979).

Section 44-18-11 is consistent with the mandate of the commerce clause. G.H. Waterman & Co. v. Norberg, 122 R.I. 825 , 412 A.2d 1132, 1980 R.I. LEXIS 1474 (1980).

A tax on all banking institutions organized or incorporated under the laws of Rhode Island does not discriminate against interstate commerce, is fairly related to the services provided by the domiciliary state, does not submit the corporation to multiple taxation, and thus does not offend either the commerce clause of this section or the due process clause of the Fourteenth Amendment. Commercial Credit Consumer Servs. v. Norberg, 518 A.2d 1336, 1986 R.I. LEXIS 560 (R.I. 1986).

A state sales tax will pass commerce-clause scrutiny when the tax meets four requirements: 1) it is applied to an activity with a substantial nexus with the taxing state; 2) it is fairly apportioned, meaning internally and externally consistent; 3) it does not discriminate against interstate commerce; and 4) it is fairly related to the services provided by the state. Koch Fuels v. Clark, 676 A.2d 330, 1996 R.I. LEXIS 159 (R.I.), cert. denied, 519 U.S. 930, 117 S. Ct. 301, 136 L. Ed. 2d 219, 1996 U.S. LEXIS 6186 (1996).

— Transportation of Solid Waste.

The interstate movement of solid waste is “commerce” within the meaning of the commerce clause. DeVito Trucking, Inc. v. Rhode Island Solid Waste Management Corp., 770 F. Supp. 775, 1991 U.S. Dist. LEXIS 10341 (D.R.I.), aff'd, 947 F.2d 1004, 1991 U.S. App. LEXIS 27042 (1st Cir. 1991).

The Rhode Island Solid Waste Management Corporation is preliminarily enjoined from enforcing those portions of its emergency flow control regulations that prohibit the transportation of solid waste to facilities licensed outside the state for disposal, where the regulations do not apply evenhandedly and impose far more than an incidental burden on interstate commerce. DeVito Trucking, Inc. v. Rhode Island Solid Waste Management Corp., 770 F. Supp. 775, 1991 U.S. Dist. LEXIS 10341 (D.R.I.), aff'd, 947 F.2d 1004, 1991 U.S. App. LEXIS 27042 (1st Cir. 1991).

— Wharfs.

A city ordinance requiring payment of wharfage fees from vessels laden with products of other states but not from vessels laden with products of the state is invalid. Guy v. Baltimore, 100 U.S. 434, 25 L. Ed. 743, 1879 U.S. LEXIS 1837 (1880).

A city ordinance fixing rates of wharfage and authorizing the sale of revenue of wharfs in consideration of repair and maintenance and paying an amount a part of which is used in maintaining a harbor police, is not in conflict with the commerce clause. Ouachita Packet Co. v. Aiken, 121 U.S. 444, 7 S. Ct. 907, 30 L. Ed. 976, 1887 U.S. LEXIS 2063 (1887).

Counterfeiting.

The counterfeiting clause does not prevent a state from punishing the offense of circulating counterfeit coin of the United States. Fox v. Ohio, 46 U.S. (5 How.) 410, 12 L. Ed. 213, 1847 U.S. LEXIS 320 (1847).

If a person passes counterfeit coin of the United States it may be an offense against the United States and the state. United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588, 1875 U.S. LEXIS 1794 (1876).

Declaration of War.

Congress cannot declare war against a state or any number of states. The Brig Amy Warwick, 67 U.S. (2 Black) 635, 17 L. Ed. 459, 1862 U.S. LEXIS 282 (1863).

Inferior Tribunals.

It is the duty of congress to establish inferior courts under Article 3 of the U.S. Constitution. Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 4 L. Ed. 97, 1816 U.S. LEXIS 333 (1816).

Militia.

— Call of Militia.

The power to decide whether or not the exigency has arisen under which the president is authorized by act of congress, February 28, 1795, ch. 101, to call out the militia belongs exclusively to the president, and his decision is conclusive on all persons. Martin v. Mott, 25 U.S. (12 Wheat.) 19, 6 L. Ed. 537, 1827 U.S. LEXIS 378 (1827).

Members of Massachusetts militia who did not sign new enlistment contracts could be called into active service to repel invasion or put down insurrection during the remaining period of enlistment. Sweetser v. Emerson, 236 F. 161, 1916 U.S. App. LEXIS 2261 (1st Cir. 1916), cert. dismissed, 243 U.S. 660, 37 S. Ct. 476, 61 L. Ed. 950, 1917 U.S. LEXIS 2030 (1917).

The militia clause does not restrict or qualify the power to require military service beyond the territorial limits of the United States. Cox v. Wood, 247 U.S. 3, 38 S. Ct. 421, 62 L. Ed. 947, 1918 U.S. LEXIS 1985 (1918).

— Regulation of Militia.

The militia clause puts no restriction upon the states in respect to concurrent legislation concerning the militia, although militia when it has entered the federal service is under exclusive federal authority. Houston v. Moore, 18 U.S. (5 Wheat.) 1, 5 L. Ed. 19, 1820 U.S. LEXIS 244 (1820).

So long as its action is within retained powers and not inconsistent with any exertion of the authority of the federal government, the state is sole judge of the means to be employed and the amount of military training to be exacted from its citizens. Hamilton v. Regents of University of California, 293 U.S. 245, 55 S. Ct. 197, 79 L. Ed. 343, 1934 U.S. LEXIS 26 (1934).

Naturalization.

Naturalization is the act of adopting a foreigner and clothing him with the privileges of a native citizen. Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 12 S. Ct. 375, 36 L. Ed. 103, 1892 U.S. LEXIS 2014 (1892).

Naturalization is a privilege to be given or withheld on such conditions as congress sees fit. Schneiderman v. United States, 320 U.S. 118, 63 S. Ct. 1333, 87 L. Ed. 1796, 1943 U.S. LEXIS 1110 (1943).

There is no doubt of the power of congress to provide for denaturalization on the grounds of fraud. Knauer v. United States, 328 U.S. 654, 66 S. Ct. 1304, 90 L. Ed. 1500, 1946 U.S. LEXIS 2182 (1946).

Necessary and Proper Laws.

All appropriate means plainly adapted to a legitimate end, which are not prohibited by the Constitution, may be employed to carry an express power into effect. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579, 1819 U.S. LEXIS 320 (1819), limited, Thomson v. Pacific Railroad, 76 U.S. 579, 19 L. Ed. 792, 1869 U.S. LEXIS 1001 (1869), limited, Central Pac. R.R. v. California, 162 U.S. 91, 16 S. Ct. 766, 40 L. Ed. 903, 1896 U.S. LEXIS 2196 (1896).

No power can be derived by implication from any express power to enact law as means for carrying the Constitution into execution, unless such means are appropriate, plainly adapted, not inconsistent with the spirit of the Constitution, or prohibited by its terms. Hepburn v. Griswold, 75 U.S. (8 Wall.) 603, 19 L. Ed. 513, 1868 U.S. LEXIS 1136 (1870), overruled, Legal Tender Cases, 79 U.S. 457, 20 L. Ed. 287, 1870 U.S. LEXIS 1220 (1871).

Within the legitimate scope of this grant congress is permitted to determine for itself what is necessary and what is proper. Ex parte Curtis, 106 U.S. 371, 1 S. Ct. 381, 27 L. Ed. 232, 1882 U.S. LEXIS 1549 (1882).

Any act of congress which plainly and directly tends to enhance the respect and love of the citizen for the institutions of his country, and to quicken and strengthen his motives to defend them, which is germane to, and intimately connected with, and appropriate to, the exercise of some one or all of the powers granted to congress, must be valid. United States v. Gettysburg Elec. Ry., 160 U.S. 668, 16 S. Ct. 427, 40 L. Ed. 576, 1896 U.S. LEXIS 2130 (1896).

Offenses.

— Armed Forces.

Congress has the power to provide for the trial and punishment of naval offenses. Dynes v. Hoover, 61 U.S. (20 How.) 65, 15 L. Ed. 838, 1857 U.S. LEXIS 432 (1858).

Congress has no power to authorize a military trial for an offense by a citizen in civil life. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 18 L. Ed. 281, 1866 U.S. LEXIS 861 (1866).

Cases involving infamous crimes arising in the land or naval forces are subject to the rules for the government and regulation of these forces, which by this section congress is empowered to make. Kurtz v. Moffitt, 115 U.S. 487, 6 S. Ct. 148, 29 L. Ed. 458, 1885 U.S. LEXIS 1861 (1885).

— “High Seas.”

Federal courts have jurisdiction of murder and robbery committed on the high seas on board a vessel held by pirates or persons not lawfully sailing under the flag of any foreign nation. United States v. Furlong, 18 U.S. (5 Wheat.) 184, 5 L. Ed. 64, 1820 U.S. LEXIS 251 (1820).

District court of district into which one committing murder on an American vessel in a foreign port is brought has jurisdiction to try that person. United States v. Flores, 289 U.S. 137, 53 S. Ct. 580, 77 L. Ed. 1086, 1933 U.S. LEXIS 172 (1933).

— “Law of Nations.”

The responsibility of the United States under the law of nations to protect foreign diplomats in their embassies and legations includes the duty of protecting the residence of an ambassador or minister against invasion. Frend v. United States, 100 F.2d 691, 1938 U.S. App. LEXIS 2734 (D.C. Cir. 1938), cert. denied, 306 U.S. 640, 59 S. Ct. 488, 83 L. Ed. 1040, 1939 U.S. LEXIS 828 (1939).

Patents and Copyrights.

The clause relating to patents and copyrights contemplates that the exclusive right shall exist but for a limited period, which period shall be subject to the discretion of congress. Pennock v. Dialogue, 27 U.S. (2 Pet.) 1, 7 L. Ed. 327, 1829 U.S. LEXIS 388 (1829).

The incorporeal rights relating to patents and copyrights are co-extensive with the United States, and do not exist in any particular state or district. Stevens v. Gladding, 58 U.S. (17 How.) 447, 15 L. Ed. 155, 1854 U.S. LEXIS 532 (1855).

— Copyrights.

Copyright property under the federal law is wholly statutory and depends upon the right created under the acts of congress passed in pursuance of the authority conferred by this section. Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 28 S. Ct. 722, 52 L. Ed. 1086, 1908 U.S. LEXIS 1513 (1908).

In copyright infringement suit, answer alleging plaintiffs were restraining trade and obtaining a monopoly constituted no defense, as rights under copyright laws are exclusive. Buck v. Hillsgrove Country Club, Inc., 17 F. Supp. 643, 1937 U.S. Dist. LEXIS 2135 (D.R.I. 1937).

— Patents.

The government cannot after a patent is issued make use of the improvement any more than a private individual without license of the inventor or making compensation to him. United States v. Burns, 79 U.S. (12 Wall.) 246, 20 L. Ed. 388, 1870 U.S. LEXIS 1186 (1871).

Legislation based on the provision relating to patents regards the right of property in the inventor as the medium of the public advantage derived from his invention, hence in every grant of the limited monopoly two interests are involved: (1) that of the public who are the grantors, and (2) that of the patentee. Butterworth v. United States ex rel. Hoe, 112 U.S. 50, 5 S. Ct. 25, 28 L. Ed. 656, 1884 U.S. LEXIS 1852 (1884).

The state is without power to tax as income royalties received for the use of patents. Long v. Rockwood, 277 U.S. 142, 48 S. Ct. 463, 72 L. Ed. 824, 1928 U.S. LEXIS 872 (1928), overruled in part, Fox Film Corp. v. Doyal, 286 U.S. 123, 52 S. Ct. 546, 76 L. Ed. 1010, 1932 U.S. LEXIS 795 (1932).

Postal Affairs.

The regulation of post offices and post roads has been delegated to the federal government, and is exercised by its laws and the regulations of the post office department in conformity thereto. Dickins v. Beal, 35 U.S. (10 Pet.) 572, 9 L. Ed. 538, 1836 U.S. LEXIS 461 (1836).

Congress may make regulations relating to what shall be carried in the mail and what shall be excluded. Ex parte Jackson, 96 U.S. 727, 24 L. Ed. 877, 1877 U.S. LEXIS 1718 (1878).

The right of the postmaster general to exclude letters from the mails, or to refuse to permit their delivery to persons addressed, must depend upon some law of congress, and if no such law exists then he cannot exclude or refuse to deliver them. American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 S. Ct. 33, 47 L. Ed. 90, 1902 U.S. LEXIS 823 (1902).

Bus carrying intrastate passengers and freight is subject to state regulations as to use of highways, though occasionally carrying interstate passengers. Inter-City Coach Co. v. Atwood, 21 F.2d 83, 1927 U.S. Dist. LEXIS 1324 (D.R.I. 1927).

Taxation.

— Duties, Imposts, and Excises.

Duties are things due and recoverable by law, imposts are duties on imported goods, and excise is an inland imposition, sometimes upon consumption of the commodity and sometimes upon the retail sales, sometimes upon the manufacturer and sometimes upon the vendor. Pacific Ins. Co. v. Soule, 74 U.S. (7 Wall.) 433, 19 L. Ed. 95, 1868 U.S. LEXIS 1019 (1869).

The power to levy taxes is limited to duties on foreign imports, and does not extend to goods carried from one state to another. Woodruff v. Parham, 75 U.S. (8 Wall.) 123, 19 L. Ed. 382, 1868 U.S. LEXIS 1088 (1869).

The power of congress to regulate foreign commerce includes power to impose customs duty, and a state importing property for its use cannot question the power of congress to subject such importation to the tax. Board of Trustees v. United States, 289 U.S. 48, 53 S. Ct. 509, 77 L. Ed. 1025, 1933 U.S. LEXIS 943 (1933).

The United States has power to lay an excise upon the doing of a business whether it is lawful or unlawful. Wainer v. United States, 299 U.S. 92, 57 S. Ct. 79, 81 L. Ed. 58, 1936 U.S. LEXIS 10 (1936).

Excise taxes may be laid on subjects other than privileges, and the tax involved in the Social Security Act, though placed upon a right as distinguished from a mere privilege, is constitutional and is not invalid as a direct tax. Steward Machine Co. v. Davis, 301 U.S. 548, 57 S. Ct. 883, 81 L. Ed. 1279, 1937 U.S. LEXIS 1199 (1937).

— Power to Tax.

While both the Fifth and Tenth Amendments qualify, insofar as they are applicable, they do not take away the power of congress to tax. McCray v. United States, 195 U.S. 27, 24 S. Ct. 769, 49 L. Ed. 78, 1904 U.S. LEXIS 818 (1904).

In exercise of its constitutional power to lay taxes, congress may select the subjects of taxation, choosing some and omitting others. Sonzinsky v. United States, 300 U.S. 506, 57 S. Ct. 554, 81 L. Ed. 772, 1937 U.S. LEXIS 80 (1937).

Weights and Measures.

The power to adopt and compel the use of a uniform system of weights and measures is within the police power of the state. House v. Mayes, 219 U.S. 270, 31 S. Ct. 234, 55 L. Ed. 213, 1911 U.S. LEXIS 1635 (1911).

Bills of Attainder — Ex Post Facto Laws.

The clause dealing with bills of attainder and ex post facto laws has no application to crimes committed without the jurisdiction of the United States against the laws of a foreign country. Neely v. Henkel, 180 U.S. 109, 21 S. Ct. 302, 45 L. Ed. 448, 1901 U.S. LEXIS 1288 (1901).

— Bill of Attainder.

The process of impeachment does not transgress the bill of attainder clause because it gives the accused party an opportunity to be heard and to present evidence in his defense. In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1986 R.I. LEXIS 475 (R.I. 1986).

The limitations of the attainder clause preclude the passage of any resolution purporting to remove any justice of the Rhode Island Supreme Court in the context in which that removal would be construed as punishment for past misconduct by implementation of those provisions contained in former R.I. Const., Article X, Sec. 4 (see now R.I. Const., Art. XI, Sec. 2 ) which provide for a majority vote of both Houses of the General Assembly. In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1986 R.I. LEXIS 475 (R.I. 1986).

— Ex Post Facto Law.

Ex post facto laws extend only to criminal cases and are restricted to creation and perhaps enhancement of crimes, pains, and penalties. Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L. Ed. 648, 1798 U.S. LEXIS 148 (1798); Board of Purification of Waters v. East Providence, 47 R.I. 431 , 133 A. 812, 1926 R.I. LEXIS 78 (1926).

An ex post facto law is one which imposes a punishment for an act which was not punishable at the time it was committed, or a punishment in addition to that then prescribed. Burgess v. Salmon, 97 U.S. 381, 24 L. Ed. 1104, 1878 U.S. LEXIS 1464 (1878).

Parole board determination in regard to convict’s parole-eligibility status was not the equivalent of a rule subject to ex post facto clauses of the Rhode Island and United States Constitutions. Lerner v. Gill, 463 A.2d 1352, 1983 R.I. LEXIS 1052 (R.I. 1983).

The Ex Post Facto Clause of the U.S. Constitution forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. United States v. Springer, 28 F.3d 236, 1994 U.S. App. LEXIS 16796 (1st Cir. 1994).

The 1992 U.S. Sentencing Guidelines’ “one book” rule (which instructs the district court that when it looks to an earlier version of the Guidelines to calculate a sentence, it must apply all the Guidelines in that earlier version, and cannot apply one section from one edition and another guideline section from a different edition) did not violate the Ex Post Facto Clause, since by looking to the 1988 Guidelines, the district court imposed the very punishment provided for by law at the time the defendant committed the act for which he was being punished. United States v. Springer, 28 F.3d 236, 1994 U.S. App. LEXIS 16796 (1st Cir. 1994).

Direct Taxes.

The Sixteenth Amendment must be construed in connection with the direct tax clause so as not to modify apportionment requirement except as applied to income taxes. Eisner v. Macomber, 252 U.S. 189, 40 S. Ct. 189, 64 L. Ed. 521, 1920 U.S. LEXIS 1605 (1920).

Expenditure of Money.

Congress has substantive power to tax and to appropriate, limited only by requirement that it be exercised to provide for general welfare of the United States. United States v. Butler, 297 U.S. 1, 56 S. Ct. 312, 80 L. Ed. 477, 1936 U.S. LEXIS 946 (1936).

The appropriation clause is a restriction on the executive power in paying out money, and not on the power of congress in levying taxes. Cincinnati Soap Co. v. United States, 301 U.S. 308, 57 S. Ct. 764, 81 L. Ed. 1122, 1937 U.S. LEXIS 292 (1937).

Habeas Corpus.

Congress has the power to authorize the president to suspend the privilege of habeas corpus. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 18 L. Ed. 281, 1866 U.S. LEXIS 861 (1866).

Preference of Ports.

State pilotage law is not repugnant to the port preference clause where it neither gives a preference of one port over another, nor requires a vessel to pay duties. Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 13 L. Ed. 996, 1851 U.S. LEXIS 658 (1852).

The port preference clause operates only as a limitation of the powers of congress, and in no respect affects the states in the regulation of their domestic affairs. Munn v. Illinois, 94 U.S. 113, 24 L. Ed. 77, 1876 U.S. LEXIS 1842 (1877).

The word “state” in the port preference clause does not include territory. Alaska v. Troy, 258 U.S. 101, 42 S. Ct. 241, 66 L. Ed. 487, 1922 U.S. LEXIS 2245 (1922).

The interstate commerce commission has no power to issue orders the plain purpose of which are to divert export and import traffic from one port to another. Texas & Pac. Ry. v. United States, 289 U.S. 627, 53 S. Ct. 768, 77 L. Ed. 1410, 1933 U.S. LEXIS 945 (1933).

Tax on Exports.

Congress may levy a tax on net income derived from the business of exporting merchandise in foreign commerce, though not upon articles exported. William E. Peck & Co. v. Lowe, 247 U.S. 165, 38 S. Ct. 432, 62 L. Ed. 1049, 1918 U.S. LEXIS 1966 (1918); New York ex rel. Cohn v. Graves, 300 U.S. 308, 57 S. Ct. 466, 81 L. Ed. 666, 1937 U.S. LEXIS 74 (1937).

The meaning of “export” is the same under this section and the second paragraph of U.S. Const. Art. 1, § 10. Richfield Oil Corp. v. State Bd. of Equalization, 329 U.S. 69, 67 S. Ct. 156, 91 L. Ed. 80, 1946 U.S. LEXIS 3005 (1946).

Bill of Attainder.

A bill of attainder is a legislative act which inflicts punishment without a judicial trial. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L. Ed. 356, 1866 U.S. LEXIS 885 (1867).

A city or town cannot by ordinance or charter bar relatives of an elected municipal official from being appointed to municipal offices or being employed by the municipality, since same would constitute a bill of attainder. Opinion to House of Representatives, 80 R.I. 281 , 96 A.2d 623, 1953 R.I. LEXIS 64 (1953).

If a legislative act impermissibly designates an individual or an easily identifiable group and then proceeds to punish that person or group, the act is a bill of attainder. United Nuclear Corp. v. Cannon, 553 F. Supp. 1220, 1982 U.S. Dist. LEXIS 9943 (D.R.I. 1982).

P.L. 1981, ch. 85, requiring the only nuclear fuel processing plant in the state to post a bond for 20 years to ensure adequate decontamination efforts and results, represents a permissible legislative initiative aimed at safeguarding a distinct and substantial public interest although limited to a class of one, and therefore is not invalid as a bill of attainder. United Nuclear Corp. v. Cannon, 553 F. Supp. 1220, 1982 U.S. Dist. LEXIS 9943 (D.R.I. 1982).

In determining whether a statute inflicts punishment and qualifies as a Bill of Attainder, three factors are relevant: (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute viewed in terms of the type and severity of burdens imposed reasonably can be said to further nonpunitive legislative purposes; and (3) whether the legislative record evidences a legislative intent to punish. Section 42-116-40 does not rise to a Bill of Attainder because: (1) it does not limit a defendant’s access to the courts or right to contribution, it merely limits the right of the settling tortfeasor’s contribution; (2) it promotes settlements and decreases the litigation expenses incurred by taxpayers; and (3) the legislative history does not indicate that passage of the section was motivated solely to punish one party. Ernst & Young v. Depositors Economic Protection Corp., 862 F. Supp. 709, 1994 U.S. Dist. LEXIS 12822 (D.R.I. 1994), aff'd, 45 F.3d 530, 1995 U.S. App. LEXIS 1387 (1st Cir. 1995).

Bills of Credit.

Bills of credit comprehend any instrument by which a state engages to pay money. Craig v. Missouri, 29 U.S. (4 Pet.) 410, 7 L. Ed. 903, 1830 U.S. LEXIS 486 (1830).

Notes issued by a bank which was created by the legislature and which was the exclusive property of the state were not bills of credit. Briscoe v. President & Directors of Bank of Kentucky, 36 U.S. (11 Pet.) 257, 9 L. Ed. 709, 1837 U.S. LEXIS 178 (1837); Darrington v. Bank of Alabama, 54 U.S. (13 How.) 12, 14 L. Ed. 30, 1851 U.S. LEXIS 832 (1852); Curran v. Arkansas, 56 U.S. (15 How.) 304, 14 L. Ed. 705, 1853 U.S. LEXIS 286 (1853).

Coupons cut from bonds issued by a state and tendered in payment of delinquent taxes are not bills of credit. Poindexter v. Greenhow, 114 U.S. 270, 5 S. Ct. 903, 29 L. Ed. 185, 1885 U.S. LEXIS 1759 (1885).

Revenue bond scrip issued under a state law was a bill of credit. Lee v. Robinson, 196 U.S. 64, 25 S. Ct. 180, 49 L. Ed. 388, 1904 U.S. LEXIS 682 (1904).

Coining of Money.

The states are expressly forbidden to coin money. Legal Tender Case (Julliard v. Greenman), 110 U.S. 421, 4 S. Ct. 122, 28 L. Ed. 204, 1884 U.S. LEXIS 1712 (1884).

Ex Post Facto Laws.

At common law if the victim did not die within a year and a day, a murder could not have been committed, so retroactive application of the abrogation of the year-and-a-day rule, would “aggravate” the crime of assault and battery, making it greater than it was when committed or greater than it could have been before the expiration of a year and a day; although the ex post facto prohibition applies to legislation only, the due-process clause prevents the accomplishment by judicial construction of that which is not permitted by statute, and the abrogation will not be applied retroactively. State v. Pine, 524 A.2d 1104, 1987 R.I. LEXIS 463 (R.I. 1987).

No ex post facto violation was found for sentencing an illegal alien under amended federal guidelines where the indictment properly charged defendant with “being found” in the United States after the effective date of the amendments. United States v. Vieira-Candelario, 811 F. Supp. 762, 1993 U.S. Dist. LEXIS 1675 (D.R.I. 1993), disapproved, United States v. Forbes, 16 F.3d 1294, 1994 U.S. App. LEXIS 3695 (1st Cir. 1994).

Since at the time the employees entered their pleas of nolo contendere, constituting pleas of guilty, the town charter providing for dismissal of town employees convicted of a felony or pleading nolo contendere to felony charges was in effect, the employees were properly dismissed. Town of W. Warwick v. Local 1104, Int'l Ass'n of Firefighters, 745 A.2d 786, 2000 R.I. LEXIS 48 (R.I. 2000).

Ex post facto clause in both the state and federal constitutions only prohibits retroactive penal legislation. The town charter amendments in question provided no criminal penalties and the loss of employment at most was merely a civil penalty. Town of W. Warwick v. Local 1104, Int'l Ass'n of Firefighters, 745 A.2d 786, 2000 R.I. LEXIS 48 (R.I. 2000).

— Construction.

Ex post facto laws relate to penal and criminal proceedings which impose punishment or forfeiture and not to civil proceedings which affect private rights. Watson v. Mercer, 33 U.S. (8 Pet.) 88, 8 L. Ed. 876, 1834 U.S. LEXIS 568 (1834).

Ex post facto laws impose a punishment for an act not punishable at the time it was committed or impose additional punishment to that then prescribed, or change rules of evidence by making less or different testimony sufficient to convict. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L. Ed. 356, 1866 U.S. LEXIS 885 (1867).

An ex post facto law is not involved in a change of the place of trial of an alleged offense after its commission. Gut v. State, 76 U.S. (9 Wall.) 35, 19 L. Ed. 573, 1869 U.S. LEXIS 936 (1869).

An ex post facto law is a law which imposes a punishment for an act which was not punishable at the time it was committed. United Nuclear Corp. v. Cannon, 553 F. Supp. 1220, 1982 U.S. Dist. LEXIS 9943 (D.R.I. 1982).

If a statute is retrospective and if it impermissibly disadvantages the offender affected by it, the statute is an ex post facto law. United Nuclear Corp. v. Cannon, 553 F. Supp. 1220, 1982 U.S. Dist. LEXIS 9943 (D.R.I. 1982).

— Application of Statutes.

The reimposition of a defendant’s suspended sentence where the suspension is illegal under § 12-19-10 because it takes place after the defendant commences serving his sentence, does not constitute an unlawful ex post facto application of § 12-19-10 . The Supreme Court’s interpretation of § 12-19-10 is not only foreseeable, but inevitable, and the statute was enacted approximately thirty years prior to the suspension of the defendant’s sentence and twenty-seven years prior to the commission of the offense for which the defendant was originally sentenced. State v. DeWitt, 557 A.2d 845, 1989 R.I. LEXIS 60 (R.I. 1989).

Where defendant was convicted in 1994 for a 1993 child molestation sexual assault offense, and the statutes were subsequently amended in 1996, 1997, and 2003 extending the duration of a defendant’s duty to register as a sex offender and increasing the penalty for registration violations, defendant’s failure-to-notify convictions in 2007, 2009, and 2010 did not run afoul of the Ex Post Facto Clauses of the United States and Rhode Island Constitutions. The duration of defendant’s duty to register was merely a condition attached to a civil, nonpunitive regulatory measure, not the imposition of retroactive punishment. State v. Gibson, 182 A.3d 540, 2018 R.I. LEXIS 98 (R.I. 2018).

Where defendant was convicted in 1994 for a 1993 child molestation sexual assault offense, and the sex offender registration statutes were subsequently amended in 1996 and 2003, increasing the penalty for registration violations, defendant’s failure-to-notify convictions in 2007, 2009, and 2010 did not run afoul of the Ex Post Facto Clauses of the United States and Rhode Island Constitutions. The increased penalty was already in effect before defendant’s failures to notify occurred, and the failures to notify were offenses separate and apart from the second-degree child molestation sexual assault of 1993, rendering them insufficiently annexed to that crime as to trigger an ex post facto violation. State v. Gibson, 182 A.3d 540, 2018 R.I. LEXIS 98 (R.I. 2018).

— Parole Board Guidelines.

The application of parole board guidelines promulgated after a defendant’s murder conviction to the defendant’s application for parole did not constitute a violation of the defendant’s constitutional rights under the ex post facto clause. State v. Tillinghast, 609 A.2d 217, 1992 R.I. LEXIS 137 (R.I. 1992).

— Particular Statutes.

Act which prohibited manufacturers and others from selling, or keeping for sale within the state, liquors manufactured or bought by them for sale prior to the passage of the act was not an ex post facto law since it did not impose criminal punishment but only lessened the value of the property involved. State v. Paul, 5 R.I. 185 , 1858 R.I. LEXIS 12 (1858).

Prohibition of pollution of water is not invalid. Board of Purification of Waters v. East Providence, 47 R.I. 431 , 133 A. 812, 1926 R.I. LEXIS 78 (1926).

Statute to compel father to support illegitimate child is not invalid as an ex post facto law. Cummings v. Church, 50 R.I. 71 , 145 A. 102, 1929 R.I. LEXIS 16 (1929).

Where funds have been appropriated to board of regents in accordance with law which would make it obligatory on the board to distribute the funds, such obligation could not be released by the general assembly later withdrawing funds from such appropriation. In re Advisory Opinion to Senate, 108 R.I. 302 , 275 A.2d 256, 1971 R.I. LEXIS 1263 (1971).

P.L. 1981, ch. 85, requiring the only nuclear fuel processing plant in the state to post a bond for 20 years to ensure adequate decontamination efforts and results, does not punish the plant operator for actions prior to the law’s enactment nor wrongfully disadvantage the plant operator and is therefore not invalid as an ex post facto law. United Nuclear Corp. v. Cannon, 553 F. Supp. 1220, 1982 U.S. Dist. LEXIS 9943 (D.R.I. 1982).

Where prisoner sentenced to two life sentences had originally been informed by the attorney general that he would be eligible for parole under § 13-8-13 after ten years, application of subsequent R.I. Supreme Court decision (interpreting § 13-8-13 as requiring ten years service for each life sentence prior to parole consideration) to deny the prisoner parole consideration until he had served twenty years did not constitute a violation of the prohibition against ex post facto laws. Lerner v. Gill, 751 F.2d 450, 1985 U.S. App. LEXIS 27510 (1st Cir.), cert. denied, 472 U.S. 1010, 105 S. Ct. 2709, 86 L. Ed. 2d 724, 1985 U.S. LEXIS 2229 (1985).

The 1982 repeal of Rule 48(b) of the Superior Court Rules of Criminal Procedure, which gave the trial judge wider latitude in considering a motion to dismiss, did not violate constitutional prohibitions against ex post facto laws, since the repeal did not make criminal an act that was innocent when done nor did it increase the punishment for a previous offense or deprive the defendant of any substantial rights. State v. Borges, 519 A.2d 574, 1986 R.I. LEXIS 570 (R.I. 1986).

Where the case under consideration did not involve the imposition of penal sanctions, but rather of liability under the former Dram Shop Act, the constitutional prohibition against ex post facto laws did not affect the validity of the retroactive application of the 1977 amendment to § 3-8-1 , prohibiting beverage sales to intoxicated persons. Lawrence v. Anheuser-Busch, Inc., 523 A.2d 864, 1987 R.I. LEXIS 451 (R.I. 1987).

Where the statute on parole eligibility had not been changed, procedural guidelines adopted and applied by the parole board after sentencing of petitioner were not in violation of prohibition against ex post facto laws. Skawinski v. State, 538 A.2d 1006, 1988 R.I. LEXIS 24 (R.I. 1988).

Contrary to defendant’s claim, the ex post facto clause was not implicated, as defendant was charged under a repealed statute, not with or penalized under a retrospective statute. State v. Pereira, 973 A.2d 19, 2009 R.I. LEXIS 75 (R.I. 2009).

Impairment of Contracts.

The Constitution of a state is a law within the meaning of this clause. Railroad Co. v. McClure, 77 U.S. (10 Wall.) 511, 19 L. Ed. 997, 1870 U.S. LEXIS 1145 (1871).

The obligation of a contract within the meaning of the impairment of contract clause is a valid subsisting obligation, and not a contingent or speculative one. Ochiltree v. Railroad Co., 88 U.S. (21 Wall.) 249, 22 L. Ed. 546, 1874 U.S. LEXIS 1362 (1875).

The obligation of a contract in the constitutional sense is the means employed by law by which it can be enforced. Louisiana v. New Orleans, 102 U.S. 203, 26 L. Ed. 132, 1880 U.S. LEXIS 2025 (1880).

The prohibition of this clause is aimed at the legislative power of the state, and not at the decisions of its courts, or the acts of administrative or executive boards or officers, or doings of corporations or individuals. New Orleans Waterworks Co. v. Louisiana Sugar Refining Co., 125 U.S. 18, 8 S. Ct. 741, 31 L. Ed. 607, 1888 U.S. LEXIS 1910 (1888).

The payment of interest specifically provided for in a contract is a part of the obligation of the contract and is within the protection of the Constitution. Morley v. Lake Shore & Mich. S. Ry., 146 U.S. 162, 13 S. Ct. 54, 36 L. Ed. 925, 1892 U.S. LEXIS 2185 (1892).

Retroactive repeal of statute (§ 30-21-3 ) conferring seniority rights or benefits on eligible veterans did not violate the contract clause of either the federal or the state constitutions. Brennan v. Kirby, 529 A.2d 633, 1987 R.I. LEXIS 550 (R.I. 1987).

The contract clause is applicable to contracts into which a state enters, but normally state statutory enactments do not of their own force create a contract with those whom the statute benefits. Hoffman v. City of Warwick, 909 F.2d 608, 1990 U.S. App. LEXIS 12536 (1st Cir. 1990).

Former § 30-21-3 , which provided for enhanced seniority in employment for veterans, does not create private contractual rights, and does not by itself, therefore, contractually bind either the state of Rhode Island or its municipalities. Hoffman v. City of Warwick, 909 F.2d 608, 1990 U.S. App. LEXIS 12536 (1st Cir. 1990).

Determining whether a state statute substantially impairs contractual obligations consists of a three-part inquiry: first, is there a contract relating to the matter that is the subject of the statute; second, does the statute effect a change in the law that impairs the contract; and, third, is the impairment substantial. Liberty Mut. Ins. Co. v. Whitehouse, 868 F. Supp. 425, 1994 U.S. Dist. LEXIS 16869 (D.R.I. 1994); Parella v. Retirement Bd. of the R.I. Employees' Retirement Sys., 173 F.3d 46, 1999 U.S. App. LEXIS 7488 (1st Cir. 1999).

The court clerks’ incentive pay statute (§ 8-4.1-1 et seq.) did not create contractual rights or otherwise promise that incentive pay would never be reduced or eliminated. Rhode Island Laborers' Dist. Council, Local Union 808 v. Rhode Island, 145 F.3d 42, 1998 U.S. App. LEXIS 10902 (1st Cir. 1998).

Section 27-34-11(b)(1), which authorizes the Rhode Island Insurers’ Insolvency Fund to recover the amounts of claims paid by insolvent insurance companies to any insured with a net worth exceeding fifty million dollars, does not impair the obligation of contracts in violation of U.S. Const., Art. 1, § 10. Rhode Island Insurer's Insolvency Fund v. Leviton Mfg. Co., 716 A.2d 730, 1998 R.I. LEXIS 261 (R.I. 1998), cert. denied, 525 U.S. 1068, 119 S. Ct. 797, 142 L. Ed. 2d 659, 1999 U.S. LEXIS 125 (1999).

The state general pension statute directed state officials to fund the pension plan, but fell short of clearly expressing a contractual commitment not to change benefit levels or other plan variables by legislation. National Educ. Ass'n-Rhode Island by Scigulinsky v. Retirement Bd. of the R.I. Employees' Retirement Sys., 172 F.3d 22, 1999 U.S. App. LEXIS 5220 (1st Cir.), cert. denied, 528 U.S. 929, 120 S. Ct. 326, 145 L. Ed. 2d 254, 1999 U.S. LEXIS 6602 (1999).

Before a court can decide a Takings claim under the Fifth Amendment involving contract rights, it must first decide if there is an impairment of the underlying contract. Parella v. Retirement Bd. of the R.I. Employees' Retirement Sys., 173 F.3d 46, 1999 U.S. App. LEXIS 7488 (1st Cir. 1999).

A contract clause analysis must interface with the consideration that statutory enactments do not create contractual relationships unless such legislation evinces a clear intent to do so. Nonnenmacher v. City of Warwick, 722 A.2d 1199, 1999 R.I. LEXIS 36 (R.I. 1999).

— Amendment of Contracts.

Under the Contract Clause, the unilateral modification of state contracts is permissible, although such alterations would be barred by traditionaly contract law. In this case, although the plaintiff obtained an implied contract by virtue of his purchase of armed service credits pursuant to §§ 45-21-53 and 36-9-31 , that implied contract also contained a reasonable modifications term embodied in § 45-21-47 . McGrath v. Rhode Island Retirement Bd., 906 F. Supp. 749, 1995 U.S. Dist. LEXIS 16537 (D.R.I. 1995), aff'd, 88 F.3d 12, 1996 U.S. App. LEXIS 16291 (1st Cir. 1996).

— Charters.

A charter of a water company which was subject to repeal, alteration, and amendment was not impaired by a state law empowering the city to erect its own plant. Newburyport Water Co. v. Newburyport, 193 U.S. 561, 24 S. Ct. 553, 48 L. Ed. 795, 1904 U.S. LEXIS 897 (1904).

G.L. 1909, ch. 237, § 17, as amended by P.L. 1909, ch. 404 [former § 19-11-9 ], in requiring savings bank deposits to be paid to general treasurer subject to repayment to one establishing right thereto, did not impair obligation of contract in contravention of this section, where charter of savings bank required all income or profit from deposits to be divided among depositors in just proportion. Greenough v. People's Sav. Bank, 38 R.I. 100 , 94 A. 706, 1915 R.I. LEXIS 45 (1915).

— Depositors Economic Protection Act.

The Rhode Island Depositors Economic Protection Act of 1991 does not constitute a law impairing the obligation of contracts in violation of the state and federal constitutions. Kayrouz v. Rhode Island Depositors Econ. Prot. Corp. ex rel. Sundlun (In re Advisory Opinion to Governor), 593 A.2d 943, 1991 R.I. LEXIS 130 (R.I. 1991).

Creating an indemnity agreement or requiring depositors to contribute a portion of their deposits to assist in an acquisition is necessary to the type of transfers contemplated by the Depositors Economic Protection Act of 1991 and does not impair the obligation of contracts, does not constitute a taking of private property for a public use without just compensation, and does not constitute a denial to any person of the equal protection of the laws. In re Advisory Opinion to the Governor (DEPCO II), 593 A.2d 1356, 1991 R.I. LEXIS 173 (R.I. 1991).

— Fish and Oysters.

By leasing oyster beds under tidal waters with grant of exclusive occupancy to lessee, a state does not bind its legislative power against subsequently authorizing a municipality bordering such waters to discharge sewage therein although great detriment to leased oyster beds results. Darling v. City of Newport News, 249 U.S. 540, 39 S. Ct. 371, 63 L. Ed. 759, 1919 U.S. LEXIS 2054 (1919).

— Insurance.

An amendment to the workers’ compensation laws, § 28-33-17(f) , which required cost of living adjustments to recipients of more than 52 weeks of workers’ compensation benefits, did not interfere with an insured’s contract even though it retroactively increases the workers’ compensation benefits the insured is required to pay pursuant to insurance policies issued before the amendment was enacted. Liberty Mut. Ins. Co. v. Whitehouse, 868 F. Supp. 425, 1994 U.S. Dist. LEXIS 16869 (D.R.I. 1994).

— Municipal Pension.

Ordinances suspending retirees’ cost of living adjustment benefit for 10 years did not offend the Contract Clauses of the United States and Rhode Island Constitutions because the substantial impairment of contract rights remedied a fiscal emergency and was reasonable and necessary, as alternatives were considered and less drastic measures were unavailable. Cranston Police Retirees Action Comm. v. City of Cranston, 208 A.3d 557, 2019 R.I. LEXIS 80 (R.I.), cert. denied, 140 S. Ct. 652, 205 L. Ed. 2d 386, 2019 U.S. LEXIS 7455 (2019).

Trial court erred in finding that the length of time of the suspension of the police and fire department retirees’ cost-of-living adjustments (COLA) was reasonable and necessary to fulfill an important public purpose because the COLA suspensions were for an indefinite period of time; the suspensions were until the pension plan became 70% funded, and that was unreasonable. Andrews v. Lombardi, 231 A.3d 1108, 2020 R.I. LEXIS 57 (R.I. 2020).

— Public Utilities.

Change of water rates was not impairment of contract by which fire district sold its property to water company in consideration of limitation of maximum rates. East Providence Water Co. v. Public Utils. Comm'n, 46 R.I. 458 , 128 A. 556, 1925 R.I. LEXIS 30 (1925).

— Remedies.

A special act of the legislature which conferred jurisdiction upon the court to admit a particular tort debtor to the poor debtor’s oath prescribed in R.S. 1857, ch. 198 [§ 10-13-1 et seq.] was not in violation of this section since a tort judgment is not a contract. In re Nichols, 8 R.I. 50 , 1864 R.I. LEXIS 9 (1864).

A writ of habeas corpus was properly issued to release a stockholder who had been committed to jail on execution issued against him under G.S. 1872, ch. 142, § 20 upon a judgment recovered against the corporation when after his commitment P.L. 1877, ch. 600 [former § 7-1-24 ] was enacted providing that stockholders should not be imprisoned upon such an execution, since the statute affected the creditor’s remedy only and the right to have the stockholder imprisoned was not a part of the contract. In re Penniman, 11 R.I. 333 , 1876 R.I. LEXIS 19 (1876), aff'd, 103 U.S. 714, 26 L. Ed. 602, 1880 U.S. LEXIS 2184 (1881).

Statute under which taxes were foreclosed against mortgaged real estate for failure of mortgagor to pay taxes did not impair contract rights of mortgagee where same statutory provision was in effect at the time the mortgages were taken. People's Sav. Bank v. Tripp, 13 R.I. 621 , 1882 R.I. LEXIS 53 (1882).

In suit by assignee of debtor to recover property transferred to defendant in satisfaction of debt, it could not be contended that state statute [G.L. 1923, ch. 390] permitting recovery was void on the ground that statute impaired the obligation of the contract, since debt was due at the time the statute was passed, and only the value of the contract was impaired, not the obligation. Lace v. Smith, 34 R.I. 1 , 82 A. 268, 1912 R.I. LEXIS 26 (1912).

In Rhode Island, one allegedly sustaining damages due to state’s repudiation of appropriation must seek special legislation providing the right to sue. In re Advisory Opinion to Senate, 108 R.I. 302 , 275 A.2d 256, 1971 R.I. LEXIS 1263 (1971).

— Retirement System.

A claim that the Eviction Act, §§ 36-9.1-1 and 36-9.1-2 , which evicted from membership in the Retirement System any individual who became a member based solely on repealed § 36-9-33, impaired teacher union employees’ contractual rights in violation of the Contract Clause survived a motion to dismiss since the employees, who had voluntarily contributed to the Retirement System for four years, had sufficiently alleged that the Act is not reasonable and necessary to serve a compelling state purpose. National Educ. Association-Rhode Island by Scigulinsky v. Retirement Bd. of the R.I. Emples. Retirement Sys., 890 F. Supp. 1143, 1995 U.S. Dist. LEXIS 9592 (D.R.I. 1995).

Neither the language of § 36-10-10.1 nor the plaintiffs’ circumstances rises to the level of an express contractual promise to provide benefits above $10,000. Parella v. Retirement Bd. of the R.I. Employees' Retirement Sys., 173 F.3d 46, 1999 U.S. App. LEXIS 7488 (1st Cir. 1999).

Because plaintiff retirees failed to establish a contractual right to withheld benefits, they could not show that the state took their “property” when it withheld those benefits pursuant to the Cap Act, § 36-10-10.1 . Parella v. Retirement Bd. of the R.I. Employees' Retirement Sys., 173 F.3d 46, 1999 U.S. App. LEXIS 7488 (1st Cir. 1999).

— Taxation.

A Rhode Island statute under which a tax was imposed on a bank did not impair the obligation of a contract. Providence Bank v. Billings, 29 U.S. (4 Pet.) 514, 7 L. Ed. 939, 1830 U.S. LEXIS 490 (1830).

— Tidal Waters.

Where the city conveyed the land under water in fee without reservation, the subsequent establishment of bulkhead and pier lines constituted impairment of prior conveyance. Appleby v. New York, 271 U.S. 364, 46 S. Ct. 569, 70 L. Ed. 992, 1926 U.S. LEXIS 875 (1926).

Imposts or Duties.

An act which authorized towns and cities to grant licenses for selling rum, wine and strong drink within said towns and cities [Dig. 1844, p. 495] did not violate this section as the minute an importer sells the liquor or strong drink it ceases to be an import and becomes a part of the trade of the state. State v. Peckham, 3 R.I. 289 , 1838 R.I. LEXIS 2 (1838).

States cannot lay imposts or duties on imports or exports, except what may be absolutely necessary for execution of inspection laws. Hamilton Co. v. Massachusetts, 73 U.S. (6 Wall.) 632, 18 L. Ed. 904, 1867 U.S. LEXIS 1014 (1868).

The terms “imports” and “exports” apply only to articles imported from foreign countries, or exported to them, and not on such as come from one state to another. Woodruff v. Parham, 75 U.S. (8 Wall.) 123, 19 L. Ed. 382, 1868 U.S. LEXIS 1088 (1869).

Inspection laws and imports and exports as used in this section refer to property and not to persons. People v. Compagnie Generale Transatlantique, 107 U.S. 59, 2 S. Ct. 87, 27 L. Ed. 383, 1882 U.S. LEXIS 1200 (1883).

Fish caught in the Gulf of Mexico and landed at the docks of a fisheries company, where they are cleaned and reiced and held for sale at wholesale, lose their character as imports and are taxable by the state. Gulf Fisheries Co. v. MacInerney, 276 U.S. 124, 48 S. Ct. 227, 72 L. Ed. 495, 1928 U.S. LEXIS 64 (1928).

Legal Tender.

The Constitution considers the emission of bills of credit and the enactment of tender laws as distinct operations, independent of each other, which may be separately performed. Craig v. Missouri, 29 U.S. (4 Pet.) 410, 7 L. Ed. 903, 1830 U.S. LEXIS 486 (1830).

State law permitting banks to pay depositor’s checks by exchange draft does not conflict with provision of the clause relating to tender in payment of debts. Farmers & Merchants Bank v. Federal Reserve Bank, 262 U.S. 649, 43 S. Ct. 651, 67 L. Ed. 1157, 1923 U.S. LEXIS 2674 (1923).

Letters of Marque and Reprisal.

To grant letters of marque and reprisal would lead directly to war, which power is expressly given to congress. Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672, 1833 U.S. LEXIS 346 (1833).

State Compacts.

Construction of a compact between states as to boundaries is a judicial question. Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 9 L. Ed. 1233, 1838 U.S. LEXIS 372 (1838).

The prohibition against “compacts” or “agreements” is directed against the formation of any combination tending toward the increase of power of the states which will encroach upon or interfere with the supremacy of the United States. Virginia v. Tennessee, 148 U.S. 503, 13 S. Ct. 728, 37 L. Ed. 537, 1893 U.S. LEXIS 2248 (1893).

States with the consent of congress may enter into compacts, and the provisions of such compacts may limit the agreeing states in the exercise of their respective powers. United States v. Bekins, 304 U.S. 27, 58 S. Ct. 811, 82 L. Ed. 1137, 1938 U.S. LEXIS 1094 (1938).

Not every agreement between the states (howsoever entitled) is a “compact” within the meaning and intendment of the compact clause. Breest v. Moran, 571 F. Supp. 343, 1983 U.S. Dist. LEXIS 13962 (D.R.I. 1983).

The New England Interstate Corrections Compact, which authorizes transfers of convicts between states, is not an agreement subject to the compact clause. Breest v. Moran, 571 F. Supp. 343, 1983 U.S. Dist. LEXIS 13962 (D.R.I. 1983).

Tonnage Duties.

A state pilotage law does not violate the clause relating to tonnage duties. Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 13 L. Ed. 996, 1851 U.S. LEXIS 658 (1852).

It is not only a pro rata tax which is prohibited, but any duty on a ship, whether a fixed sum upon its whole tonnage, or a sum to be ascertained by comparing the amount of tonnage with the rate of duty. Steamship Co. v. Portwardens, 73 U.S. (6 Wall.) 31, 18 L. Ed. 749, 1867 U.S. LEXIS 935 (1867).

Tonnage is a vessel’s internal cubical capacity in tons of one hundred cubic feet each. Inman S.S. Co. v. Tinker, 94 U.S. 238, 24 L. Ed. 118, 1876 U.S. LEXIS 1854 (1877).

A city ordinance imposing a license tax on ferryboats is not a tonnage tax. Wiggins Ferry Co. v. East St. Louis, 107 U.S. 365, 2 S. Ct. 257, 27 L. Ed. 419, 1882 U.S. LEXIS 1228 (1883).

A duty on tonnage is a charge upon a vessel, according to its tonnage, as an instrument of commerce, for entering or leaving a port, or navigating the public waters of the country, and the prohibition is designed to prevent the states from imposing hinderances of this kind on commerce. Huse v. Glover, 119 U.S. 543, 7 S. Ct. 313, 30 L. Ed. 487, 1886 U.S. LEXIS 2026 (1886).

Delegation of Power.

A direction by the attorney-general to seize property under an act of congress empowering the president to cause such seizure, must be regarded as the act of the president. Confiscation Cases, 87 U.S. (20 Wall.) 92, 22 L. Ed. 320, 22 L. Ed. 327, 1873 U.S. LEXIS 1490 (1874).

An approval of a sentence of a court-martial endorsed upon the record of the proceedings by the secretary of war is presumptively the approval of the president, though not in his own handwriting. United States v. Fletcher, 148 U.S. 84, 13 S. Ct. 552, 37 L. Ed. 378, 1893 U.S. LEXIS 2209 (1893).

Executive Power.

The president has power to withdraw public lands from private acquisition. United States v. Midwest Oil Co., 236 U.S. 459, 35 S. Ct. 309, 59 L. Ed. 673, 1915 U.S. LEXIS 1776 (1915).

Presidential Electors.

A commissioner of the United States Centennial Commission appointed under a statute of the United States, approved March 3, 1871, held an office of trust and was thereby disqualified for the office of elector. In re Corliss, 11 R.I. 638 , 1876 R.I. LEXIS 33 (1876).

In Rhode Island, the election by the people of electors under the provisions of G.S. 1872, ch. 11, §§ 1 and 2 [former § 17-4-1 , now 17-4-1 0] constitutes the appointment of electors prescribed in this section, so that in order for a candidate for the office of elector who held an office of trust under the United States to make himself eligible for the office, he would need to resign his federal office before the election. In re Corliss, 11 R.I. 638 , 1876 R.I. LEXIS 33 (1876).

A plurality of electors voting may elect a presidential elector if the statutes of the state so provide. In re Plurality Elections, 15 R.I. 617 , 8 A. 881, 1887 R.I. LEXIS 28 (1887).

A state law providing for election of presidential electors by congressional districts instead of by the people of the state at large does not violate this section. McPherson v. Blacker, 146 U.S. 1, 13 S. Ct. 3, 36 L. Ed. 869, 1892 U.S. LEXIS 2171 (1892).

Chairman of state executive committee of political party is not required to certify candidate for presidential elector at state primary, if candidate refuses to sign pledge that he will support and aid nominees of national convention of that party for president and vice-president, since such a pledge is constitutional. Ray v. Blair, 343 U.S. 214, 72 S. Ct. 654, 96 L. Ed. 894, 1952 U.S. LEXIS 2246 (1952).

Appointments.

When a person has been nominated to an office by the president, confirmed by the senate and his commission signed by the president, and the seal of the United States affixed thereto, his appointment is complete. United States v. Le Baron, 60 U.S. (19 How.) 73, 15 L. Ed. 525, 1856 U.S. LEXIS 422 (1856), limited, United States v. Eaton, 169 U.S. 331, 18 S. Ct. 374, 42 L. Ed. 767, 1898 U.S. LEXIS 1498 (1898).

Unless a person in the service of the government holds his place by virtue of an appointment by the president, or by one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not strictly speaking an officer of the United States. United States v. Mouat, 124 U.S. 303, 8 S. Ct. 505, 31 L. Ed. 463, 1888 U.S. LEXIS 1861 (1888).

Under the power of congress to vest the appointment of such inferior officers as it thinks proper in the president alone, congress may vest in the president the power to appoint a subordinate officer designated as a vice-consul. United States v. Eaton, 169 U.S. 331, 18 S. Ct. 374, 42 L. Ed. 767, 1898 U.S. LEXIS 1498 (1898).

Commander in Chief.

The president, as commander in chief of the army, can employ secret agents to obtain information respecting the enemy, and direct payment of their compensation out of contingent funds under his control. Totten v. United States, 92 U.S. 105, 23 L. Ed. 605, 1875 U.S. LEXIS 1732 (1876).

The president is commander in chief of the army and navy at all times, and of the militia when it is called into federal service. Johnson v. Sayre, 158 U.S. 109, 15 S. Ct. 773, 39 L. Ed. 914, 1895 U.S. LEXIS 2235 (1895).

It is within the power of the president, as commander in chief, to convene a general court-martial, even when the commander of the accused is not the accuser. Swaim v. United States, 165 U.S. 553, 17 S. Ct. 448, 41 L. Ed. 823, 1897 U.S. LEXIS 1996 (1897).

The president, as commander in chief, is vested with power to wage war which congress has declared, and to carry into effect all laws passed by congress for the conduct of war and for government and regulation of the armed forces, and laws defining and punishing offenses against laws of nations, including those which apply to conduct of war. Ex parte Quirin, 317 U.S. 1, 63 S. Ct. 2, 87 L. Ed. 3, 1942 U.S. LEXIS 1119 (1942).

The president’s exercise of authority as commander in chief is subject only to the review of the courts that his actions are not arbitrary or without reasonable justification. Ken-Rad Tube & Lamp Corp. v. Badeau, 55 F. Supp. 193, 1944 U.S. Dist. LEXIS 2396 (D. Ky. 1944).

Seizure of steel mills by the president could not be sustained on the basis of military power as commander in chief, since that power does not authorize the taking of private property. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153, 1952 U.S. LEXIS 2625 (1952).

Interim Appointments.

A vacancy created by the dismissal of an army officer from service by the president, can only be filled by a new appointment, by and with the advice of the senate, unless it occurs during a recess of that body, when the president can grant a commission to expire at the end of the next succeeding session. United States v. Corson, 114 U.S. 619, 5 S. Ct. 1158, 29 L. Ed. 254, 1885 U.S. LEXIS 1802 (1885).

Pardons.

A pardon may be conditional. United States v. Wilson, 32 U.S. (7 Pet.) 150, 8 L. Ed. 640, 1833 U.S. LEXIS 340 (1833).

The word “pardon” in the first paragraph has the same meaning as the word had in England at the time of the United States Constitution. Ex parte Wells, 59 U.S. (18 How.) 307, 15 L. Ed. 421, 1855 U.S. LEXIS 703 (1856).

Power of president to pardon in contempt cases applies only to criminal contempt and does not include civil contempt. Ex parte Grossman, 267 U.S. 87, 45 S. Ct. 332, 69 L. Ed. 527, 1925 U.S. LEXIS 359 (1925).

Removals and Dismissals.

The power of removal of inferior officers is an incident of the power of appointment. Ex parte Hennen, 38 U.S. (13 Pet.) 230, 10 L. Ed. 138, 1839 U.S. LEXIS 433 (1839).

The president has the power to summarily dismiss from the army or navy any officer for cause. McElrath v. United States, 102 U.S. 426, 26 L. Ed. 189, 1880 U.S. LEXIS 2051 (1880).

Treaties.

Congress by legislation may abrogate a treaty made between this country and another country even though it has been negotiated by the president and approved by the senate. La Abra Silver Mining Co. v. United States, 175 U.S. 423, 20 S. Ct. 168, 44 L. Ed. 223, 1899 U.S. LEXIS 1576 (1899).

Arrangements between Russian Soviet Republic and state department by which the former released its claim to property of a Russian corporation located in this country and assigned interest to United States was not a “treaty” which required advice and consent of the senate. United States v. Belmont, 301 U.S. 324, 57 S. Ct. 758, 81 L. Ed. 1134, 1937 U.S. LEXIS 293 (1937).

The language of a treaty wherever reasonably possible will be construed so as not to override state laws or to impair rights arising under them. Guaranty Trust Co. v. United States, 304 U.S. 126, 58 S. Ct. 785, 82 L. Ed. 1224, 1938 U.S. LEXIS 1021 (1938).

Litvinov assignment had the dignity of a treaty and was the law of the land, and New York courts could not deny validity of assignment or enforcement of same despite public policy of the state which denied validity of the Russian decrees on which the assignment was based. United States v. Pink, 315 U.S. 203, 62 S. Ct. 552, 86 L. Ed. 796, 1942 U.S. LEXIS 1060 (1942).

Federal and State Courts.

Congress may determine whether the federal courts which it has established should have exclusive jurisdiction of cases arising under the Constitution and laws of the United States or whether they should exercise that jurisdiction concurrently with the courts of the state. Bowles v. Willingham, 321 U.S. 503, 64 S. Ct. 641, 88 L. Ed. 892, 1944 U.S. LEXIS 1202 (1944).

The United States supreme court should not undertake to decide questions of local law without the aid of some expression of the views of the judges of the local courts who are familiar with the intricacies and trends of local law and practice. Busby v. Electric Utilities Employees Union, 323 U.S. 72, 65 S. Ct. 142, 89 L. Ed. 78, 1944 U.S. LEXIS 1250 (1944).

The supreme law clause (Article 6) was not intended to be the means by which congress could compel a state to provide at its own expense, courts for the enforcement of federal laws which those states deemed to be penal, and therefore unenforceable in its courts. Robinson v. Norato, 71 R.I. 256 , 43 A.2d 467, 1945 R.I. LEXIS 48 (1945), disapproved, Testa v. Katt, 330 U.S. 386, 67 S. Ct. 810, 91 L. Ed. 967, 1947 U.S. LEXIS 2950 (1947).

Inferior Courts.

The organization of a single review procedure especially adapted to the exigencies and requirements of a nationwide scheme of price regulation is within the constitutional power of congress to create inferior courts and prescribe their jurisdiction. Yakus v. United States, 321 U.S. 414, 64 S. Ct. 660, 88 L. Ed. 834, 1944 U.S. LEXIS 1311 (1944).

Because bankruptcy courts are not Article III courts, their subject-matter jurisdiction must be limited to the adjudication of congressionally-created rights under the Bankruptcy Code and cannot include the adjudication of either state-created rights or federal constitutional rights, but a bankruptcy court’s eviction order is not an impermissible adjudication of state-created rights. In re Searles, 70 B.R. 266, 1987 U.S. Dist. LEXIS 1175 (D.R.I. 1987).

Power of Congress.

Congress has the power to establish circuit and district courts in any and all of the states, and confer on them equitable jurisdiction in cases coming within the Constitution, and also to prescribe and regulate the modes of proceeding therein. Livingston v. Story, 34 U.S. (9 Pet.) 632, 9 L. Ed. 255, 1835 U.S. LEXIS 364 (1835).

Congress alone has the power to determine whether the judgment of a court of the United States of competent jurisdiction, shall be reviewed or not, and if it fails to provide for such review the judgment stands as the judgment of the court of last resort. Ex parte Pennsylvania, 109 U.S. 174, 3 S. Ct. 84, 27 L. Ed. 894, 1883 U.S. LEXIS 951 (1883).

Constitutional courts as differentiated from legislative courts are protected under this provision as to tenure and compensation of members and are defined primarily as those provided for in this section, while legislative courts are those created by congress to administer territories and those exercising administrative functions. Gorham v. Robinson, 57 R.I. 1 , 186 A. 832, 1936 R.I. LEXIS 66 (1936).

This provision enforces and protects the independence of the federal judges in constitutional courts. Gorham v. Robinson, 57 R.I. 1 , 186 A. 832, 1936 R.I. LEXIS 66 (1936).

Claims Against Church Officials.

It is the U.S. Const., Amend. 1, and not Art. 3, that prohibits secular courts from intervening in the internal affairs of hierarchical churches by deciding issues of religious doctrine. Kelly v. Marcantonio, 187 F.3d 192, 1999 U.S. App. LEXIS 18396 (1st Cir. 1999).

Criminal Trials.

— Crimes.

The third paragraph has no application to proceedings under an act of congress providing for deportation orders. Union Pac. Ry. v. Taggart, 149 U.S. 698, 13 S. Ct. 977, 37 L. Ed. 905, 1893 U.S. LEXIS 2339 (1893).

The third paragraph has no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country. Neely v. Henkel, 180 U.S. 109, 21 S. Ct. 302, 45 L. Ed. 448, 1901 U.S. LEXIS 1288 (1901).

— Place of Trial.

A crime committed against the laws of the United States out of the limits of a state is not local and can be tried at such place as congress may designate. United States v. Dawson, 56 U.S. (15 How.) 467, 14 L. Ed. 775, 1853 U.S. LEXIS 298 (1854).

In the prosecution of a United States senator for receiving compensation for services before the post office department in a proceeding in which the United States was interested, the federal court sitting in the state where the agreement was consummated had jurisdiction. Burton v. United States, 202 U.S. 344, 26 S. Ct. 688, 50 L. Ed. 1057, 1906 U.S. LEXIS 1541 (1906).

There is no constitutional principle which entitles a person to be tried in the place of his residence. Haas v. Henkel, 216 U.S. 462, 30 S. Ct. 249, 54 L. Ed. 569, 1910 U.S. LEXIS 1912 (1910).

Where a continuing offense (such as possession of drugs with intent to distribute) is involved, venue is proper wherever the crime takes place, including the spot where it originates. United States v. Uribe, 890 F.2d 554, 1989 U.S. App. LEXIS 18306 (1st Cir. 1989).

Venue in the district of Rhode Island is proper in the case of conspiracy and drug trafficking charges brought against multiple defendants in the federal district court. United States v. Uribe, 890 F.2d 554, 1989 U.S. App. LEXIS 18306 (1st Cir. 1989).

— Right to Jury.

The jury referred to in the third paragraph is a jury constituted as it was at common law of twelve persons, neither more nor less. Thompson v. Utah, 170 U.S. 343, 18 S. Ct. 620, 42 L. Ed. 1061, 1898 U.S. LEXIS 1550 (1898), overruled in part, Collins v. Youngblood, 497 U.S. 37, 110 S. Ct. 2715, 111 L. Ed. 2d 30, 1990 U.S. LEXIS 3294 (1990).

Jurisdiction of Supreme Court.

The supreme court alone possesses jurisdiction derived immediately from the Constitution, which cannot be taken away by the legislative power. Stevenson v. Fain, 195 U.S. 165, 25 S. Ct. 6, 49 L. Ed. 142, 1904 U.S. LEXIS 742 (1904); Ex parte Wisner, 203 U.S. 449, 27 S. Ct. 150, 51 L. Ed. 264, 1906 U.S. LEXIS 1608 (1906), overruled in part, Ex parte Harding, 219 U.S. 363, 31 S. Ct. 324, 55 L. Ed. 252, 1911 U.S. LEXIS 1642 (1911), overruled in part, Lee v. Chesapeake & Ohio. Ry., 260 U.S. 653, 43 S. Ct. 230, 67 L. Ed. 443, 1923 U.S. LEXIS 2506 (1923).

This clause does not grant exclusive jurisdiction to the United States supreme court in the cases enumerated, and the exercise of jurisdiction is not mandatory in every case. Georgia v. Pennsylvania R.R., 324 U.S. 439, 65 S. Ct. 716, 89 L. Ed. 1051, 1945 U.S. LEXIS 2617 (1945).

— Appellate Jurisdiction.

The appellate power of the supreme court under this clause is limited and regulated by the Judicial Act and other acts of congress on the same subject. Durousseau v. United States, 10 U.S. (6 Cranch) 307, 3 L. Ed. 232, 1810 U.S. LEXIS 345 (1810).

— — Issuance of Writs.

The supreme court can ordinarily issue a writ of habeas corpus only pursuant to its appellate jurisdiction. Ex parte Hung Hang, 108 U.S. 552, 2 S. Ct. 863, 27 L. Ed. 811, 1883 U.S. LEXIS 1065 (1883).

Mandamus will not lie from the supreme court to compel a lower court to decide a matter before it in a particular way, or to review its judicial action had in the exercise of legitimate jurisdiction. In re Parsons, 150 U.S. 150, 14 S. Ct. 50, 37 L. Ed. 1034, 1893 U.S. LEXIS 2367 (1893).

The statutory power of the United States supreme court to issue writs of prohibition or mandamus to federal district courts can be constitutionally exercised only insofar as such writs are in aid of its appellate jurisdiction, and the issuance of such writs will ordinarily be limited to cases involving questions of public importance. Ex parte Republic of Peru, 318 U.S. 578, 63 S. Ct. 793, 87 L. Ed. 1014, 1943 U.S. LEXIS 1120 (1943).

— — Scope of Review.

The supreme court has appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as congress shall make. Ableman v. Booth, 62 U.S. (21 How.) 506, 16 L. Ed. 169, 1858 U.S. LEXIS 676 (1859).

The judicial action of all inferior courts established by congress may in accordance with the Constitution be subjected to the appellate jurisdiction of the supreme court. United States v. Coe, 155 U.S. 76, 15 S. Ct. 16, 39 L. Ed. 76, 1894 U.S. LEXIS 2250 (1894).

Order granting or denying petition for naturalization is a final decision and is reviewable. Tutun v. United States, 270 U.S. 568, 46 S. Ct. 425, 70 L. Ed. 738, 1926 U.S. LEXIS 432 (1926).

Supreme court in the exercise of its appellate jurisdiction has the power not only to correct errors in judgment under review but to make such disposition of the case as justice requires. Honeyman v. Hanan, 300 U.S. 14, 57 S. Ct. 350, 81 L. Ed. 476, 1937 U.S. LEXIS 1171 (1937).

— Original Jurisdiction.

Congress cannot give the supreme court original jurisdiction in cases other than those enumerated by this clause. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60, 1803 U.S. LEXIS 352 (1803), limited, Cohens v. Virginia, 19 U.S. 264, 5 L. Ed. 257, 1821 U.S. LEXIS 362 (1821).

The supreme court may exercise its original jurisdiction without any act of congress to regulate its procedure. Kentucky v. Dennison, 65 U.S. (24 How.) 66, 16 L. Ed. 717, 1860 U.S. LEXIS 376 (1861), overruled in part, Puerto Rico v. Branstad, 483 U.S. 219, 107 S. Ct. 2802, 97 L. Ed. 2d 187, 1987 U.S. LEXIS 2873 (1987).

Congress has the power to grant to inferior federal courts jurisdiction in cases in which the supreme court also has original jurisdiction. Ames v. Kansas ex rel. Johnston, 111 U.S. 449, 4 S. Ct. 437, 28 L. Ed. 482, 1884 U.S. LEXIS 1802 (1884).

The original jurisdiction of the supreme court is limited and manifestly intended to be sparingly exercised, and should not be expanded by construction. California v. Southern Pacific Co., 157 U.S. 229, 15 S. Ct. 591, 39 L. Ed. 683, 1895 U.S. LEXIS 2198 (1895).

— — Public Ministers.

The supreme court has the right to accept the certificate of the state department that a party is or is not a privileged person, and cannot be asked to proceed upon argumentative or collateral proof. In re Baiz, 135 U.S. 403, 10 S. Ct. 854, 34 L. Ed. 222, 1890 U.S. LEXIS 2028 (1890).

The original jurisdiction clause refers to diplomatic and consular representatives accredited to the United States by foreign powers, and not to those representing this country abroad. Ex parte Gruber, 269 U.S. 302, 46 S. Ct. 112, 70 L. Ed. 280, 1925 U.S. LEXIS 30 (1925).

— — State as a Party.

The supreme court has jurisdiction of a bill filed by one state against another to ascertain and establish the boundary between them. Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 9 L. Ed. 1233, 1838 U.S. LEXIS 372 (1838).

The supreme court in a proceeding in which a state is a party may grant an injunction for removal or elevation of a bridge obstructing navigation. Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518, 14 L. Ed. 249, 1851 U.S. LEXIS 876 (1852).

A state having an interest in railroad bonds may seek equitable relief against citizens of another state by filing an original bill in the supreme court. Florida v. Anderson, 91 U.S. 667, 23 L. Ed. 290, 1875 U.S. LEXIS 1422 (1875).

The supreme court cannot entertain an original action by a state upon a judgment recovered by the state in a court of the state under a penal statute against a foreign insurance company. Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 8 S. Ct. 1370, 32 L. Ed. 239, 1888 U.S. LEXIS 1989 (1888), overruled in part, Milwaukee County v. M. E. White Co., 296 U.S. 268, 56 S. Ct. 229, 80 L. Ed. 220, 1935 U.S. LEXIS 576 (1935).

The clause conferring upon the supreme court original jurisdiction in all cases in which a state shall be a party means in all cases mentioned in the preceding clause in which a state may of right be a party defendant as well as in all cases in which a state may of right institute a suit in federal court. United States v. Texas, 143 U.S. 621, 12 S. Ct. 488, 36 L. Ed. 285, 1892 U.S. LEXIS 2045 (1892).

The enforcement of oyster legislation of two states showed the existence between such states in their sovereign capacity as states of a controversy affecting the boundary line separating them so as to give the supreme court original jurisdiction. Louisiana v. Mississippi, 202 U.S. 1, 26 S. Ct. 408, 50 L. Ed. 913, 1906 U.S. LEXIS 1516 (1906).

A state cannot invoke the original jurisdiction of the United States supreme court to review, annul, or set aside an order of the interstate commerce commission, since the statutory method of accomplishing that relief is exclusive of all other remedies. Georgia v. Pennsylvania R.R., 324 U.S. 439, 65 S. Ct. 716, 89 L. Ed. 1051, 1945 U.S. LEXIS 2617 (1945).

Magistrate Court Powers.

Because the federal Constitution does not allow a magistrate judge to order the entry of a final judgment, a magistrate’s order that a default judgment be entered was invalid. Conetta v. National Hair Care Ctrs., Inc., 186 F.R.D. 262, 1999 U.S. Dist. LEXIS 6735 (D.R.I. 1999), aff'd, 236 F.3d 67, 2001 U.S. App. LEXIS 160 (1st Cir. 2001).

Subjects of Jurisdiction.

— Admiralty and Maritime.

This section did not deprive the states of jurisdiction of common law remedies for marine torts within the states. Chase v. American Steamboat Co., 9 R.I. 419 , 1870 R.I. LEXIS 6 (1870).

A state law regulating the use of nets or seines for taking fish in a bay wholly within the state, the mouth of which is less than two marine leagues wide, does not violate this clause. Manchester v. Massachusetts, 139 U.S. 240, 11 S. Ct. 559, 35 L. Ed. 159, 1891 U.S. LEXIS 2378 (1891).

A violation by the defendant of G.L. 1923, ch 124, § 8 [former § 23-25-9 ] cannot be defeated on the ground that it is a violation of this section where the violation complained of occurred within the territorial limits of the state, as the state, generally speaking has at least concurrent jurisdiction in nearly all the cases of admiralty, whether of tort or contract, excepting proceedings in rem. State v. Leary, 46 R.I. 197 , 125 A. 353, 1924 R.I. LEXIS 74 (1924).

The national government has taken over the traditional body of rules, precepts, and practices known as the maritime law, so far as the courts invested with admiralty jurisdiction should accept and apply them. O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 63 S. Ct. 488, 87 L. Ed. 596, 1943 U.S. LEXIS 1123 (1943).

— — Liens.

Admiralty has jurisdiction of suits by ship carpenters and materialmen for repairs and necessaries made and furnished to ships, whether foreign or in state ports to which they do not belong, or in the home ports, if the state law gives a lien for work and material. New Jersey Steam Navigation Co. v. Merchants' Bank of Boston, 47 U.S. (6 How.) 344, 12 L. Ed. 465, 1848 U.S. LEXIS 319 (1848).

A court of admiralty has no jurisdiction of questions of property between a mortgagee and the owner of a vessel. Bogart v. The S.B. John Jay, 58 U.S. (17 How.) 399, 15 L. Ed. 95, 1854 U.S. LEXIS 525 (1855).

Admiralty has no jurisdiction to enforce liens for constructing vessels. People's Ferry Co. v. Beers, 61 U.S. (20 How.) 393, 15 L. Ed. 961, 1857 U.S. LEXIS 465 (1858).

Admiralty has jurisdiction of an action to foreclose a preferred mortgage on a vessel, though the greater part of the proceeds was not used for maritime purposes. Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 55 S. Ct. 31, 79 L. Ed. 176, 1934 U.S. LEXIS 965 (1934).

— — Maritime Contracts.

Admiralty jurisdiction does not extend to a contract for hire of seamen except where the service is substantially performed upon the sea, or upon waters within the ebb and flow of the tide. The Steam-Boat Thomas Jefferson, 23 U.S. (10 Wheat.) 428, 6 L. Ed. 358, 1825 U.S. LEXIS 236 (1825), overruled in part, The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 13 L. Ed. 1058, 1851 U.S. LEXIS 674 (1852).

The mere fact that transportation is by sea, and not by land is not sufficient to give an admiralty court jurisdiction of an action for breach of contract to employ a vessel in carrying passengers and freight from one port to another. Vandewater v. Mills, 60 U.S. (19 How.) 82, 15 L. Ed. 554, 1856 U.S. LEXIS 424 (1857).

A policy of marine insurance is a maritime contract governed by the admiralty clause of the constitution. Pace v. Insurance Co. of N. Am., 838 F.2d 572, 1988 U.S. App. LEXIS 1211 (1st Cir. 1988).

The admiralty clause does not bar an action against an insurer, under § 9-1-33 , for its bad faith refusal to pay claims. Pace v. Insurance Co. of N. Am., 838 F.2d 572, 1988 U.S. App. LEXIS 1211 (1st Cir. 1988).

— — Torts.

Courts of admiralty have jurisdiction in cases of tort or collision on the high seas, or within the ebb and flow of tide as far up a river as they occur, although they may be infra corpus comitatus. Waring v. Clarke, 46 U.S. (5 How.) 441, 12 L. Ed. 226, 1847 U.S. LEXIS 321 (1847).

A federal court sitting in admiralty has jurisdiction of a libel in rem against a vessel for destruction of a beacon emerging from the water and placed by the government as an aid to navigation. The Blackheath, 195 U.S. 361, 25 S. Ct. 46, 49 L. Ed. 236, 1904 U.S. LEXIS 725 (1904).

The jurisdiction of admiralty over a cause of action by an employee against his employer for personal injuries does not depend on the place where the injury is inflicted, but on the nature of the employee’s services, his status as a member of the vessel, and his relationship as such to the vessel and its operation. Swanson v. Marra Bros., Inc., 328 U.S. 1, 66 S. Ct. 869, 90 L. Ed. 1045, 1946 U.S. LEXIS 3011 (1946).

— Cases or Controversies.

By “cases” and “controversies” are intended the claims or contentions of litigants brought before the courts for adjudication by regular proceedings established for the protection or enforcement of rights, or the prevention, punishment or redress of wrongs. Smith v. Adams, 130 U.S. 167, 9 S. Ct. 566, 32 L. Ed. 895, 1889 U.S. LEXIS 1735 (1889).

Appeal would not lie to the supreme court to review a judgment of the court of appeals of District of Columbia on appeal from a determination of the federal radio commission as to the issuance of a radio broadcasting license, since an administrative decision, rather than a judicial case or controversy, was involved. Federal Radio Comm'n. v. General Electric Co., 281 U.S. 464, 50 S. Ct. 389, 74 L. Ed. 969, 1930 U.S. LEXIS 402 (1930).

A controversy must be one that is appropriate for judicial determination, must be definite and concrete concerning legal relations of the parties having adverse interests, and there must be a real and substantial controversy admitting of specific relief by a decree of conclusive character. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S. Ct. 461, 81 L. Ed. 617, 1937 U.S. LEXIS 1147 (1937).

The constitutional requirement that the federal judicial power extends only to “cases” or “controversies” as applied to declaratory judgment proceedings is not to be limited in a narrow or technical sense. Dewey & Almy Chemical Co. v. American Anode, Inc., 137 F.2d 68, 1943 U.S. App. LEXIS 2750 (3d Cir.), cert. denied, 320 U.S. 761, 62 S. Ct. 70, 88 L. Ed. 454, 1943 U.S. LEXIS 1240 (1943).

To insure compliance with this section’s limitation of jurisdiction to cases or controversies, the minimum constitutional requirement for standing is that a party bringing suit have suffered or be threatened with suffering “injury in fact.” Rhode Island Committee on Energy v. General Services Admin., 561 F.2d 397, 1977 U.S. App. LEXIS 11963 (1st Cir. 1977).

Area residents satisfied minimum constitutional requirements for standing, where they sought to prevent sale of federal land to utility for construction of nuclear power plant on grounds that such a plant would harm their environment, and where it was clear that prevention of the sale would eliminate the potential harm. Rhode Island Committee on Energy v. General Services Admin., 561 F.2d 397, 1977 U.S. App. LEXIS 11963 (1st Cir. 1977).

Where plaintiffs sought declaratory and injunctive relief against former § 16-21-2 , which provided for transportation benefits to children attending sectarian schools, claiming that the section violated the establishment clause, and the Commissioner of Education had ordered that the transportation duties created by the section be carried out, the case was ripe for adjudication. Members of Jamestown School Committee v. Schmidt, 427 F. Supp. 1338, 1977 U.S. Dist. LEXIS 17022 (D.R.I. 1977).

The directives contained in § 27-41-27 , which provides that each employer shall include in any health benefits plan offered to its employees the option of membership in licensed health maintenance organizations (HMO’s), were not meant to be self-executing, but are activated only when and if a request for inclusion is addressed to a particular employer. Since the only duly licensed state HMO had not triggered these mandates nor evinced any intention of doing so, a complaint by a hospital service corporation and a medical service corporation which, together, sponsored an employee welfare benefit plan, challenging the validity of § 27-41-27 offered no “case or controversy” under the federal constitution. Blue Cross of Rhode Island v. Cannon, 589 F. Supp. 1483, 1984 U.S. Dist. LEXIS 15647 (D.R.I. 1984).

Claims by various individuals and organizations that the enforcement provisions of § 11-19-39(b) offended the constitutional guarantee of procedural due process by failing to provide for adequate hearings following the suspension of a registration to conduct bingo games were nonjusticiable, as such suspension procedures had not been invoked against any of the plaintiffs, nor was such a suspension imminent. Allendale Leasing, Inc. v. Stone, 614 F. Supp. 1440, 1985 U.S. Dist. LEXIS 17165 (D.R.I. 1985), aff'd, 788 F.2d 830, 1986 U.S. App. LEXIS 24760 (1st Cir. 1986).

Claim that credit union would violate federal and state statutory and common law if it foreclosed on a mortgage, bought the mortgaged property at public auction, and then did nothing to remedy a sewage problem on the premises, did not present a justiciable case or controversy. O'Neil v. Q.L.C.R.I., Inc., 750 F. Supp. 551, 1990 U.S. Dist. LEXIS 15443 (D.R.I. 1990).

Federal action challenging the constitutionality of the payout scheme under the Depositors’ Economic Protection Act (chapter 116 of title 42) was stayed indefinitely to permit state court resolution and because, even if there were no parallel state proceedings, the constitutional questions raised in the plaintiffs’ complaint were not ripe for adjudication. Colonial Courts Apartment Co. v. Paradis, 780 F. Supp. 88, 1992 U.S. Dist. LEXIS 220 (D.R.I. 1992).

A declaratory judgment action brought to establish the absence of patent infringement satisfied the jurisdictional requirement that a “case or controversy” exist. Comtec Info. Sys. v. Monarch Marking Sys., 962 F. Supp. 15, 1997 U.S. Dist. LEXIS 6328 (D.R.I. 1997).

A court, under the “doctrine of hypothetical jurisdiction,” may not decide a cause of action before resolving its jurisdiction under Article III. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S. Ct. 1003, 140 L. Ed. 2d 210, 1998 U.S. LEXIS 1601 (1998).

There was no case or controversy over which the court could assume jurisdiction since the attorney general of the United States had expressed her unequivocal opinion that the statute at issue was unconstitutional and had directed the various United States attorneys under her command not to investigate or prosecute alleged violations. Magee v. United States, 93 F. Supp. 2d 161, 2000 U.S. Dist. LEXIS 5870 (D.R.I. 2000).

— — Abstention.

Abstention is appropriate if defendants have not shown they are experiencing a direct and immediate harm which a decision by a federal court could avoid, or that by postponing a decision, defendants will incur substantial hardship. To promote the interests of federalism, federal courts should refrain from interpreting local law prior to its initial application without a concrete case and controversy. Ernst & Young v. Depositors Economic Protection Corp., 862 F. Supp. 709, 1994 U.S. Dist. LEXIS 12822 (D.R.I. 1994), aff'd, 45 F.3d 530, 1995 U.S. App. LEXIS 1387 (1st Cir. 1995).

— Cases Under Constitution, Laws, and Treaties.

The Constitution and laws clause is to give jurisdiction where the character of the parties would not give it and extends to all cases arising under the Constitution or a law of the United States, whoever may be the parties. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L. Ed. 257, 1821 U.S. LEXIS 362 (1821).

A case in admiralty does not in fact arise under the Constitution or laws of the United States. American Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511, 7 L. Ed. 242, 1828 U.S. LEXIS 421 (1828).

A corporation created by congress for purposes authorized by the Constitution and laws of the United States cannot sue a state under the Constitution and laws clause. Smith v. Reeves, 178 U.S. 436, 20 S. Ct. 919, 44 L. Ed. 1140, 1900 U.S. LEXIS 1691 (1900).

Action to recover damages against federal law enforcement officers for alleged unconstitutional deprivation of liberty and search and seizure involved an issue arising under the Constitution of the United States. Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939, 1946 U.S. LEXIS 2569 (1946).

Power to exercise pendent jurisdiction exists when: (1) there is a substantial federal question in the case over which the court has subject matter jurisdiction; and (2) the state and federal claims “derive from a common nucleus of operative fact” such that the plaintiff “would ordinarily be expected to try them all in one” action. Amoco Oil Co. v. Local 99, IBEW, 536 F. Supp. 1203, 1982 U.S. Dist. LEXIS 18359 (D.R.I. 1982).

— Claims of Land Under Grants.

The supreme court has jurisdiction where parties to proceeding claimed land under grants from New Hampshire and Vermont, though states were one at the time of the first grant. Pawlet v. Clark, 13 U.S. (9 Cranch) 292, 3 L. Ed. 735, 1815 U.S. LEXIS 392 (1815).

— Equity and Common Law.

Remedies in federal court at common law and in equity are to be according to the principles of common law and equity as distinguished and defined in England at the time of the Constitution. Robinson v. Campbell, 16 U.S. (3 Wheat.) 212, 4 L. Ed. 372, 1818 U.S. LEXIS 358 (1818).

The chancery jurisdiction given by the Constitution and laws of the United States is the same in all of the states in the United States. Boyle v. Zacharie, 31 U.S. (6 Pet.) 648, 8 L. Ed. 532, 1832 U.S. LEXIS 494 (1832).

An act of congress requiring the attorney-general to sue in equity a railroad company was not intended to change the rights of the parties to the suit, but was to provide a specific mode of procedure by removing restrictions on the jurisdiction and by giving a larger scope to the action of the circuit court, and was a valid exercise of legislative power. United States v. Union Pac. R.R., 98 U.S. 569, 25 L. Ed. 143, 1878 U.S. LEXIS 1420 (1879).

There are no common law offenses against the United States. United States v. Britton, 108 U.S. 199, 2 S. Ct. 531, 27 L. Ed. 698, 1883 U.S. LEXIS 1024 (1883).

The terms “law” and “equity” although intended to mark and fix the distinction between the two systems of jurisprudence as known and practiced at the time of the adoption of the Constitution do not restrict the jurisdiction conferred by it to the very rights and remedies then recognized and employed. Ellis v. Davis, 109 U.S. 485, 3 S. Ct. 327, 27 L. Ed. 1006, 1883 U.S. LEXIS 991 (1883).

— Mootness.

The definition of “mootness” is not inflexible: Federal courts may decide cases that present questions capable of repetition, yet evading review, even though the immediate controversy between the parties may have dissipated. Gomes v. Rhode Island Interscholastic League, 604 F.2d 733, 1979 U.S. App. LEXIS 12120 (1st Cir. 1979).

The tenets of mootness apply with the same force to requests for declaratory judgment as they do to claims seeking injunctive relief. deLeiris v. Scott, 642 F. Supp. 1552, 1986 U.S. Dist. LEXIS 20609 (D.R.I. 1986).

Plaintiffs’ prayers for declaratory and injunctive relief were moot, where the statutory provision which they challenged had been amended so as to eliminate a duty to disclose the personal data which defendant had refused to provide. deLeiris v. Scott, 642 F. Supp. 1552, 1986 U.S. Dist. LEXIS 20609 (D.R.I. 1986).

The concept of mootness derives from the Article III requirement that federal courts are limited to adjudicating “cases” and “controversies,” and stands for the proposition that federal courts are without power to decide questions which cannot affect the rights of the litigants before them. Violet v. United States EPA, 654 F. Supp. 56, 1987 U.S. Dist. LEXIS 5047 (D.R.I. 1987).

Plaintiff’s suit was not moot since construing § 38-2-6 to exempt the association’s planned activity of using names obtained from public records for solicitation purposes would require a categorical disclaimer on the part of the state of any intent to enforce the prohibition on commercial solicitation, which disclaimer would not be legally permissible. Rhode Island Ass'n of Realtors v. Whitehouse, 199 F.3d 26, 1999 U.S. App. LEXIS 32451 (1st Cir. 1999).

An action for breach of an implied covenant of good faith and fair dealing arising out of an automotive dealership contract, in which the plaintiff sought an injunction to preclude the relocation of another dealership, was moot where the other dealership had been sold and no longer planned to relocate. County Motors, Inc. v. GMC, 278 F.3d 40, 2002 U.S. App. LEXIS 1566 (1st Cir. 2002).

— Standing.

Where plaintiff doctors refused to perform abortions between the sixteenth and nineteenth weeks of pregnancy, allegedly because they feared violation of § 11-23-5 , whereas § 11-23-5 in fact only regulates conduct at twenty-three weeks at the earliest, the doctors had no standing to attack the constitutionality of that section; similarly, the woman who had been refused an abortion by these doctors had no standing. Rodos v. Michaelson, 527 F.2d 582, 1975 U.S. App. LEXIS 11743 (1st Cir. 1975).

To decide if particular plaintiffs have met the standing standards imposed by article III, it must be determined whether plaintiffs have established (1) a distinct and palpable injury, (2) that is fairly traceable to the statutory enactment in question and (3) that the relief requested will redress the injury suffered. Women's Medical Center v. Roberts, 512 F. Supp. 316, 1981 U.S. Dist. LEXIS 11728 (D.R.I. 1981).

To satisfy the requisites of this article, a plaintiff must allege such a personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. Women's Medical Center v. Roberts, 512 F. Supp. 316, 1981 U.S. Dist. LEXIS 11728 (D.R.I. 1981).

Resolution of the question whether a party with standing can raise jus tertii claims does not implicate constitutional considerations. Women's Medical Center v. Roberts, 512 F. Supp. 316, 1981 U.S. Dist. LEXIS 11728 (D.R.I. 1981).

Medical facilities which provided abortion services had standing to challenge the constitutionality of chapter 23-4.7, the Informed Consent for Abortion statute, as it affected them. Women's Medical Center v. Roberts, 512 F. Supp. 316, 1981 U.S. Dist. LEXIS 11728 (D.R.I. 1981).

Medical facilities which provided abortion services could assert the rights of their women patients in challenging the constitutionality of the Rhode Island Informed Consent for Abortion Statute, § 23-4.7-1 et seq. Women's Medical Center v. Roberts, 512 F. Supp. 316, 1981 U.S. Dist. LEXIS 11728 (D.R.I. 1981).

Municipal taxpayers had standing to challenge a city’s ownership and use of a life-sized Christian nativity scene as part of a city-sponsored outdoor Christmas display situated on public property as a violation of the establishment clause of the first amendment. Donnelly v. Lynch, 691 F.2d 1029, 1982 U.S. App. LEXIS 24334 (1st Cir. 1982), rev'd, 465 U.S. 668, 104 S. Ct. 1355, 79 L. Ed. 2d 604, 1984 U.S. LEXIS 37 (1984).

City residents and taxpayers had standing to challenge the city’s maintenance of a memorial to the “Unknown Child.” Fausto v. Diamond, 589 F. Supp. 451, 1984 U.S. Dist. LEXIS 15793 (D.R.I. 1984).

Municipal employees had standing to attack § 36-12-2.1 , which prohibits municipalities from providing public employees with health insurance covering induced abortions, as a violation of the federal Civil Rights Act. National Educ. Ass'n v. Garrahy, 598 F. Supp. 1374, 1984 U.S. Dist. LEXIS 21575 (D.R.I. 1984), aff'd, 779 F.2d 790, 1986 U.S. App. LEXIS 21626 (1st Cir. 1986).

To have constitutional standing, a plaintiff must allege: (1) That he has suffered personal injury; (2) that the injury is fairly traceable to the defendant’s allegedly unlawful conduct; and (3) that the injury is likely to be redressed by the requested relief. Project Basic Tenants Union v. Rhode Island Housing & Mortg. Finance Corp., 636 F. Supp. 1453, 1986 U.S. Dist. LEXIS 24584 (D.R.I. 1986).

An association of individuals who sought to rectify perceived inequalities in Providence housing had standing to sue the city of Providence, the state, the Rhode Island Housing Mortgage Finance Corporation and the United States Department of Housing and Urban Development for the alleged prevention of construction of a federally subsidized housing project. Project Basic Tenants Union v. Rhode Island Housing & Mortg. Finance Corp., 636 F. Supp. 1453, 1986 U.S. Dist. LEXIS 24584 (D.R.I. 1986).

A municipality does not have standing to challenge the constitutionality of legislation (P.L. 1985, ch. 386; codified as §§ 37-18-2 , 37-18-3 , 37-18-7 , and 37-18-12 — 37-18-15 and amending the Narragansett Indian Land Management Corporation Act) and a settlement agreement, resolving the Narragansett Indians’ claims, it maintains are in violation of the contracts clause of the United States Constitution, because it acts with public and governmental purpose where the challenged legislation and the settlement agreement affect only the conveyances of lands within the township and the rights and duties of the town with respect to the provision of police, fire, sanitation, health protection, and other municipal services to these lands. Charlestown v. United States, 696 F. Supp. 800, 1988 U.S. Dist. LEXIS 11253 (D.R.I. 1988), aff'd, 873 F.2d 1433, 1989 U.S. App. LEXIS 5291 (1st Cir. 1989).

Article III of the Constitution permits a court to adjudicate a controversy only if a party has “standing.” United States v. One Parcel of Real Property, 936 F.2d 632, 1991 U.S. App. LEXIS 12908 (1st Cir. 1991).

To have standing, a party must show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that the injury fairly can be traced to the challenged action and is likely to be redressed by a favorable decision. United States v. One Parcel of Real Property, 936 F.2d 632, 1991 U.S. App. LEXIS 12908 (1st Cir. 1991).

A drug store lacked standing to challenge § 3-7-19 after its application for the transfer of a liquor license was denied since after denial the license was transferred to another entity, which transfer was approved, and the drug store did not allege that it currently possessed or intended to seek another license which had been, or was likely to be, denied by reason of the alleged wrongful conduct. Rumford Pharmacy, Inc. v. East Providence, 970 F.2d 996, 1992 U.S. App. LEXIS 17552 (1st Cir. 1992).

Petitioner for habeas corpus on the basis of wrongful revocation of parole who was subsequently released because he completed his term of imprisonment was required to demonstrate collateral consequences of the revocation adequate to meet the injury-in-fact requirement of Article III. Spencer v. Kemna, 523 U.S. 1, 118 S. Ct. 978, 140 L. Ed. 2d 43, 1998 U.S. LEXIS 1597 (1998).

An association had standing to file a pre-enforcement suit since it was reasonable for it to infer that a real possibility of prosecution awaited if it decided to proceed with using names obtained from public records for solicitation of new members, in violation of the plain language of § 38-2-6 prohibiting commercial solicitation. Rhode Island Ass'n of Realtors v. Whitehouse, 199 F.3d 26, 1999 U.S. App. LEXIS 32451 (1st Cir. 1999).

When contractors and employees are deterred from bidding or working on projects because of state or local encroachment of their federal rights, they sustain an injury and have standing to challenge the state action in the federal courts. Associated Builders & Contrs. v. City of Providence, 108 F. Supp. 2d 73, 2000 U.S. Dist. LEXIS 12161 (D.R.I. 2000).

— Suits Between Citizens of Different States.

The privilege of a citizen of one state to sue citizens of another state in the federal courts cannot be taken away by any legislation of the state in which the defendants reside. Marshall v. Baltimore & Ohio. R.R., 57 U.S. (16 How.) 314, 14 L. Ed. 953, 1850 U.S. LEXIS 1556 (1854).

Federal and state courts have concurrent jurisdiction in all cases between citizens of different states. Dodge v. Woolsey, 59 U.S. (18 How.) 331, 15 L. Ed. 401, 1855 U.S. LEXIS 704 (1856).

A state has no power to pass a law impairing the general equity jurisdiction of the federal court to administer as between citizens of different states the assets of deceased persons. Hayes v. Pratt, 147 U.S. 557, 13 S. Ct. 503, 37 L. Ed. 279, 1893 U.S. LEXIS 2185 (1893).

— Suits Between States and Foreign States.

Constitutional provision conferring jurisdiction over suits against states by foreign states did not subject states to suit without their consent. Principality of Monaco v. Mississippi, 292 U.S. 313, 54 S. Ct. 745, 78 L. Ed. 1282, 1934 U.S. LEXIS 711 (1934).

— Suits Between Two or More States.

In view of the Eleventh Amendment, private claims of citizens of one state against another state for damages resulting from wrongful act may not be litigated in a suit between the states. North Dakota v. Minnesota, 263 U.S. 365, 44 S. Ct. 138, 68 L. Ed. 342, 1923 U.S. LEXIS 2753 (1923).

In a suit between states the supreme court may consider federal, state, and international law, and the relative rights of the states in respect to the use of streams is not controlled by the rules of law as applied to individuals, though such rules may be taken into account. Connecticut v. Massachusetts, 282 U.S. 660, 51 S. Ct. 286, 75 L. Ed. 602, 1931 U.S. LEXIS 34 (1931).

Where Massachusetts asked leave to file complaint against Missouri to determine the place of taxation of trusts and both states claimed the exclusive right to impose inheritance taxes, a justiciable controversy was not presented. Massachusetts v. Missouri, 308 U.S. 1, 60 S. Ct. 39, 84 L. Ed. 3, 1939 U.S. LEXIS 127 (1939).

The United States Supreme Court would, in all likelihood, not exercise its original jurisdiction over a $10,000 contract dispute between a Maryland university and a Rhode Island university regarding a research project, where a state tribunal was available and better equipped to provide the parties with relief. State of Md. Cent. Collection Unit v. Board of Regents, 529 A.2d 144, 1987 R.I. LEXIS 543 (R.I. 1987).

— Suits By and Against State.

An injunction will issue in behalf of a state. Georgia v. Brailsford, 2 U.S. (2 Dall.) 415, 1 L. Ed. 438, 1793 U.S. LEXIS 248 (1793).

Federal court did not have jurisdiction to determine whether former R.I. Const., Amend. 5 was legally adopted where governor had declared the amendment adopted. Smith v. Good, 34 F. 204, 1888 U.S. App. LEXIS 2268 (C.C.D.R.I. 1888).

Jurisdiction over controversies between a state and citizens of another state does not embrace the determination of political questions. Louisiana v. Texas, 176 U.S. 1, 20 S. Ct. 251, 44 L. Ed. 347, 1900 U.S. LEXIS 1715 (1900).

— — Effect of Eleventh Amendment.

Since eleventh amendment immunity can be waived, and since courts have the discretion to raise eleventh amendment questions sua sponte, suggests that the eleventh amendment is just as much a grant of immunity, and thus a type of defense, as it is a limitation on courts’ jurisdiction. Thus, there are eleventh amendment claims that are not jurisdictional and therefore need not be resolved before reaching the merits. Parella v. Retirement Bd. of the R.I. Employees' Retirement Sys., 173 F.3d 46, 1999 U.S. App. LEXIS 7488 (1st Cir. 1999).

— United States as Party.

Exemption of United States from suit does not protect its officers from personal liability to persons whose rights of property have been invaded. Ickes v. Fox, 300 U.S. 82, 57 S. Ct. 412, 81 L. Ed. 525, 1937 U.S. LEXIS 1125 (1937).

Elements of Treason.

The crime of treason consists of two elements: (1) adherence to the enemy and (2) aid and comfort to the enemy. Cramer v. United States, 325 U.S. 1, 65 S. Ct. 918, 89 L. Ed. 1441, 1945 U.S. LEXIS 2157 (1945).

— Adherence to Enemy.

Adherence to the enemy may be proved by statements made by defendant, hence defendant who played up virtues of Japanese soldier and played down American soldier was guilty of adherence to the enemy. Kawakita v. United States, 343 U.S. 717, 72 S. Ct. 950, 96 L. Ed. 1249, 1952 U.S. LEXIS 2017 (1952).

— Aid and Comfort to Enemy.

The overt acts of aid and comfort must be intentional, as distinguished from merely negligent ones, and the defendant must not only intend the act, but he must intend to betray his country by means of the act. Cramer v. United States, 325 U.S. 1, 65 S. Ct. 918, 89 L. Ed. 1441, 1945 U.S. LEXIS 2157 (1945).

— Levying War.

Traveling by individuals to a place of rendezvous does not constitute the levying of war, but the meeting of groups of men to march to a rendezvous does constitute the levying of war. Ex parte Bollman, 8 U.S. (4 Cranch) 75, 2 L. Ed. 554, 1807 U.S. LEXIS 369 (1807).

— Proof.

It is only overt acts by the accused which the Constitution expressly requires to be proved by the testimony of two witnesses, and other common law evidence is admissible. Cramer v. United States, 325 U.S. 1, 65 S. Ct. 918, 89 L. Ed. 1441, 1945 U.S. LEXIS 2157 (1945).

Adherence to the enemy in the sense of a disloyal state of mind is not required to be proved by deposition of two witnesses. Cramer v. United States, 325 U.S. 1, 65 S. Ct. 918, 89 L. Ed. 1441, 1945 U.S. LEXIS 2157 (1945).

Punishment for Treason.

Persistent acts of cruelty by Japanese-American toward American prisoners while acting as interpreter at Japanese mine justified death sentence for treason. Kawakita v. United States, 343 U.S. 717, 72 S. Ct. 950, 96 L. Ed. 1249, 1952 U.S. LEXIS 2017 (1952).

In General.

This section requires that state courts recognize judgments of the courts of sister states, provided the sister state’s court properly exercise subject-matter and personal jurisdiction. Jordan v. Jordan, 586 A.2d 1080, 1991 R.I. LEXIS 25 (R.I. 1991).

Acts, Records, and Proceedings.

A judgment of a court of a state has credit, validity, and effect in all courts within the United States. Hampton v. M'Connel, 16 U.S. (3 Wheat.) 234, 4 L. Ed. 378, 1818 U.S. LEXIS 361 (1818).

Judgments of other states do not enjoy the right of priority, or privilege, or lien, which they have in the state where they are pronounced, but that only which the lex fori gives to them by its own laws in their character of foreign judgments. Cole v. Cunningham, 133 U.S. 107, 10 S. Ct. 269, 33 L. Ed. 538, 1890 U.S. LEXIS 1895 (1890).

This provision does not extend the jurisdiction of the courts of one state to property situated in another, but only makes the judgment rendered conclusive on the merits of the claim or subject matter of the suit. Fall v. Eastin, 215 U.S. 1, 30 S. Ct. 3, 54 L. Ed. 65, 1909 U.S. LEXIS 1726 (1909).

Provision in G.L. 1896, ch. 155, § 4 [former § 5-31-2] requiring persons wishing to practice dentistry in Rhode Island to take an examination for the purpose of securing certificate to practice does not violate the due faith and credit clause of federal Constitution, since there is no provision in the act which requires state board to ignore certificates to practice dentistry issued by other states. State v. Rosenkrans, 30 R.I. 374 , 75 A. 491, 1910 R.I. LEXIS 29 (1910), aff'd, 225 U.S. 698, 32 S. Ct. 840, 56 L. Ed. 1263, 1912 U.S. LEXIS 2124 (1912).

Decisions of the supreme court of the United States interpreting this section are binding on state courts. Gilbert v. Hayward, 37 R.I. 303 , 92 A. 625, 1914 R.I. LEXIS 47 (1914).

Where a decree from another state is not shown to be final and conclusive, but subject to modification, the decree is not entitled to the protection of the full faith and credit clause. Hewett v. Hewett, 44 R.I. 308 , 116 A. 883, 1922 R.I. LEXIS 34 (1922); Kordoski v. Belanger, 52 R.I. 268 , 160 A. 205, 1932 R.I. LEXIS 39 (1932).

In view of the fact that the United States supreme court has not finally decided how far it will go in holding legislative acts to be “public acts” within the meaning of the good faith and credit clause, the Rhode Island supreme court refused to enforce wrongful death act of Massachusetts, since it was a penal statute. McGrath v. Tobin, 81 R.I. 415 , 103 A.2d 795, 1954 R.I. LEXIS 103 (1954).

Judgment taken in New York and sued on in Rhode Island was entitled to full faith and credit where defendant failed to show that judgment could be successfully attacked in New York due to alleged fraud of plaintiff in obtaining judgment. Jaron v. Frank, 227 F.2d 277, 1955 U.S. App. LEXIS 3188 (1st Cir. 1955).

The full faith and credit clause does not bar Rhode Island from giving effect to a Massachusetts statute by comity, or from adopting a Massachusetts decree as its own, provided there is no contrary statute or public policy in Rhode Island against it. Skeadas v. Sklaroff, 84 R.I. 206 , 122 A.2d 444, 1956 R.I. LEXIS 45 , cert. denied, 351 U.S. 988, 76 S. Ct. 1051, 100 L. Ed. 1501, 1956 U.S. LEXIS 741 (1956).

Where New York court had jurisdiction to hear cy pres proceeding because trustee and trust fund were located in New York, although the trust fund had been applied to a Rhode Island beneficiary and the Rhode Island attorney general was not notified of or made a party to the proceedings, the New York decision was entitled to full faith and credit. Israel v. National Board of YMCA, 117 R.I. 614 , 369 A.2d 646, 1977 R.I. LEXIS 1731 (1977).

Where the judgment of a foreign court is based on valid in rem jurisdiction over the subject matter and on in personam jurisdiction over the parties, this state must enforce that judgment to the extent that it is final and nonmodifiable. Bouchard v. Bouchard, 119 R.I. 656 , 382 A.2d 810, 1978 R.I. LEXIS 602 (1978).

Although the full faith and credit clause commands Rhode Island courts to give the judgment of a sister state full cordit, it does not confer upon that judgment a constitutional claim to a more conclusive effect in the Rhode Island courts than it would have in the courts of the state where rendered. McCullough v. Hudspeth, 120 R.I. 598 , 389 A.2d 1242, 1978 R.I. LEXIS 706 (1978).

Corporations.

A judgment against a foreign corporation upon a contract with a citizen of a state, service of process having been made on a resident agent, is entitled to full faith and credit in the state of domicile. Lafayette Ins. Co. v. French, 59 U.S. (18 How.) 404, 15 L. Ed. 451, 1855 U.S. LEXIS 710 (1856).

A judgment of a federal court which under the laws of the state is binding on the stockholders of a corporation has the same conclusive effect on a stockholder sued in another state. Hancock Nat'l Bank v. Farnum, 176 U.S. 640, 20 S. Ct. 506, 44 L. Ed. 619, 1900 U.S. LEXIS 1761 (1900).

The refusal of the Wisconsin courts to entertain suits of a receiver of an insolvent Minnesota corporation to enforce stockholders’ double liability, in accordance with Minnesota law violated this section. Converse v. Hamilton, 224 U.S. 243, 32 S. Ct. 415, 56 L. Ed. 749, 1912 U.S. LEXIS 2300 (1912).

Where an insurance company organized under the laws of the state of its residence and authorized thereby to insure property outside of state, issues policies and renewals from its home office on property in another state through correspondence by mail with brokers resident of the latter state, the application of a law of that state making such brokers the agents of the insurance company did not deny full faith and credit to the laws of the state of the company’s organization. American Fire Ins. Co. v. King Lumber & Mfg. Co., 250 U.S. 2, 39 S. Ct. 431, 63 L. Ed. 810, 1919 U.S. LEXIS 1705 (1919).

Jurisdiction to order an assessment against the stockholders of a corporation in receivership attached when the petition of the receiver was filed in accordance with the statute of the particular state, and a nonresident stockholder may not collaterally attack such order when suit is brought thereon in the state in which the nonresident stockholder resides. Chandler v. Peketz, 297 U.S. 609, 56 S. Ct. 602, 80 L. Ed. 881, 1936 U.S. LEXIS 1033 (1936).

Decree of Foreign Nations.

A decree of a foreign nation is not governed by the full faith and credit clause but is recognized only through principles of comity. Slessinger v. Secretary of Health & Human Services, 835 F.2d 937, 1987 U.S. App. LEXIS 16792 (1st Cir. 1987).

Marriage, Divorce, and Custody.

A divorce decree granted in a state with jurisdiction over the petitioner is valid in all states. Ditson v. Ditson, 4 R.I. 87 , 1856 R.I. LEXIS 14 (1856).

A party is barred by the full faith and credit clause from collaterally attacking on jurisdictional grounds in the courts of a sister state a decree in divorce proceedings where there has been participation by the party therein, where the party has been given full opportunity in such proceedings to contest jurisdictional issues, and where the decree in question is not susceptible to such collateral attack in the courts of the state that rendered it. Ramsay v. Ramsay, 79 R.I. 441 , 90 A.2d 433, 1952 R.I. LEXIS 70 (1952).

In the absence of fraud or collusion, the requirements of full faith and credit under the federal constitution bar a respondent from collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister state where there has been participation by respondent in the divorce proceedings, where he has been accorded full opportunity to contest the jurisdictional issues, and where the decree is not subject to such collateral attack in the courts of the state which entered said decree. Nevin v. Nevin, 88 R.I. 426 , 149 A.2d 722, 1959 R.I. LEXIS 33 (1959).

This section is not involved in a case where the parties were divorced in Virginia, with custody of their child awarded to the wife, and after moving to Rhode Island, the wife brought an action to fix the custody of the child under the laws of this state. In re Smith, 100 R.I. 663 , 219 A.2d 126, 1966 R.I. LEXIS 494 (1966).

The full faith and credit clause precludes the courts of this state from entertaining a collateral attack on a judgment of divorce rendered in a sister state when the validity of such judgment could not be challenged in the courts of that state. Bouchard v. Bouchard, 119 R.I. 656 , 382 A.2d 810, 1978 R.I. LEXIS 602 (1978).

The full-faith-and-credit clause would not preclude modification by the family court of Massachusetts custody, alimony, and support orders. Paolino v. Paolino, 420 A.2d 830, 1980 R.I. LEXIS 1835 (R.I. 1980).

— Alimony.

A judgment for a fixed sum for alimony due is entitled to full faith and credit in another state, but a provision for payment of alimony in the future which is subject to the discretion of the court in the state where rendered is not a final judgment for a fixed sum. Lynde v. Lynde, 181 U.S. 183, 21 S. Ct. 555, 45 L. Ed. 810, 1901 U.S. LEXIS 1356 (1901).

An award of full alimony agreed upon by the parties in a decree of divorce in Arkansas was a bar to an award of further alimony in a suit by the divorced wife in another state in which the husband owned real property. Bates v. Bodie, 245 U.S. 520, 38 S. Ct. 182, 62 L. Ed. 444, 1918 U.S. LEXIS 2111 (1918).

Refusal of state supreme court to give credit to judgment of a sister state for alimony because subject to modification is a ruling upon a federal right, and the sufficiency of the grounds for denial is for the United States supreme court to decide, and while the United States supreme court will give deference to the opinion of the court of the forum in determining the applicable law of the state which rendered the judgment sought to be enforced, the view of such latter court is not conclusive. Barber v. Barber, 323 U.S. 77, 65 S. Ct. 137, 89 L. Ed. 82, 1944 U.S. LEXIS 45 (1944).

The giving of full faith and credit to ex parte divorce decree obtained in other state does not require a finding that wife’s right to support was terminable. Rymanowski v. Rymanowski, 105 R.I. 89 , 249 A.2d 407, 1969 R.I. LEXIS 722 (1969).

Where the parties are subject to the personal jurisdiction of a foreign court, a decree denying the wife alimony terminates and supersedes the support provisions of a prior decree for support pendente lite or a bed and board divorce. Bouchard v. Bouchard, 119 R.I. 656 , 382 A.2d 810, 1978 R.I. LEXIS 602 (1978).

— Child Support.

Where Florida at all times during divorce proceedings has subject-matter and personal jurisdiction, it would be error to conclude that a Florida judgment regarding child support should not be honored in Rhode Island. Jordan v. Jordan, 586 A.2d 1080, 1991 R.I. LEXIS 25 (R.I. 1991).

Since Florida retained both subject-matter and personal jurisdiction at the time of the divorce judgment, the decision to apply the Full Faith and Credit Clause was dispositive of the paternity case against the ex-lover. J.H. v. R.B., 796 A.2d 447, 2002 R.I. LEXIS 98 (R.I. 2002).

— Custody.

Under this section a New York court in habeas corpus proceeding could grant a father the right of visitation, notwithstanding Florida decree in a divorce proceeding in which father was not a party did not provide for visitation, since the court of the forum had an equal right to qualify prior judgment as the court in the state where the decree was rendered. New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S. Ct. 903, 91 L. Ed. 1133, 1947 U.S. LEXIS 2472 (1947).

Where the family court had jurisdiction of the subject matter and the parties to the controversy, it was not precluded by this clause from determining what was for the best interest of the children at the time of the hearing, irrespective of the parents’ prior private agreements. Culpepper v. Martins, 96 R.I. 328 , 191 A.2d 285, 1963 R.I. LEXIS 92 (1963).

Where period during which order for temporary custody of child would have been effective was expired, issue was moot and court could not consider whether original order was entitled to full faith and credit. Yates v. Easley, 110 R.I. 425 , 293 A.2d 511, 1972 R.I. LEXIS 931 (1972).

Since child custody orders are temporary in nature and are always subject to modification to meet changed conditions affecting the child’s welfare, the full faith and credit mandate does not inhibit the family court from making such orders and decrees concerning a child’s custody as his welfare requires. McCullough v. Hudspeth, 120 R.I. 598 , 389 A.2d 1242, 1978 R.I. LEXIS 706 (1978).

It is well-settled law in the otherwise unsettled area of custody litigation that a sister state may modify a custody decree to the extent that the same decree was modifiable in the rendering state. Paolino v. Paolino, 420 A.2d 830, 1980 R.I. LEXIS 1835 (R.I. 1980).

A state is not bound to give full faith and credit to the custody decree of a sister state in circumstances in which both parties contesting the right to custody were not served with process within the state; and if the state where enforcement of the foreign decree is sought did give full faith and credit to such foreign decree, it would also have the concomitant duty to consider the modification thereof. Pratt v. Pratt, 431 A.2d 405, 1981 R.I. LEXIS 1166 (R.I. 1981).

— Notice and Process.

Finding of Nevada court that it had jurisdiction based on domicile to enter decree in favor of husband was not conclusive on sister state, since sister state could reexamine issue of jurisdiction and make its own determination, and if convinced that court rendering decree did not have jurisdiction, it was not required to give full faith and credit to Nevada decree. Williams v. North Carolina, 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577, 1945 U.S. LEXIS 2036 (1945).

— Separation.

Application by husband in Pennsylvania court upon obtaining a divorce in another state for total relief from support order previously obtained in Pennsylvania court was properly denied where the Pennsylvania court found that applicant had not intended to establish a domicile in the state where he had obtained the divorce. Esenwein v. Commonwealth ex rel. Esenwein, 325 U.S. 279, 65 S. Ct. 1118, 89 L. Ed. 1608, 1945 U.S. LEXIS 2037 (1945).

A Nevada divorce granted to the wife on her cross complaint may not be subjected to collateral attack in the Massachusetts court to enforce a previously granted decree for separate support. Coe v. Coe, 334 U.S. 378, 68 S. Ct. 1094, 92 L. Ed. 1451, 1948 U.S. LEXIS 2081 (1948).

A New York decree awarding the wife money for her maintenance and support in a separation proceeding will survive the husband’s ex parte Nevada divorce decree which was subsequently granted. Estin v. Estin, 334 U.S. 541, 68 S. Ct. 1213, 92 L. Ed. 1561, 1948 U.S. LEXIS 2084 (1948).

Probate.

An action will not lie against an administrator in one state on a judgment against a different administrator of the same estate appointed in another state. Stacy v. Thrasher, 47 U.S. (6 How.) 44, 12 L. Ed. 337, 1848 U.S. LEXIS 296 (1848).

This section does not extend the jurisdiction of a state court beyond its own borders, so that a will probated in another state needs only to be given effect by a Rhode Island court to the extent that it affects property located in such state but not as it affects property located in Rhode Island. Bowen v. Johnson, 5 R.I. 112 , 1858 R.I. LEXIS 4 (1858).

The probate of a will in a foreign jurisdiction does not operate to dispose of property located in Rhode Island; “full faith and credit” is accorded the foreign decree when its effectiveness within the jurisdiction in which it is awarded is recognized. Olney v. Angell, 5 R.I. 198 , 1858 R.I. LEXIS 13 (1858).

A judgment in ancillary probate proceedings in another state discharging the executor from further liability does not prevent a creditor from setting up his claim in the state probate court having primary administration of the estate. Borer v. Chapman, 119 U.S. 587, 7 S. Ct. 342, 30 L. Ed. 532, 1887 U.S. LEXIS 1923 (1887).

While a judgment against a party may be conclusive against those in privity with the defendant, there is no privity between two administrators appointed in different states. Brown v. Fletcher's Estate, 210 U.S. 82, 28 S. Ct. 702, 52 L. Ed. 966, 1908 U.S. LEXIS 1496 (1908).

Where a foreign judgment is not presented for allowance in administration proceedings, but is offered merely for the purpose of showing that a judgment had been entered, the question of full faith and credit does not arise. Dolan v. Anthony, 51 R.I. 181 , 152 A. 873, 1931 R.I. LEXIS 6 (1931).

A New York court judgment relating to the testamentary exercise of a power of appointment under a trust indenture is entitled to full faith and credit. Rhode Island Hosp. Trust Nat'l Bank v. de Beru, 553 A.2d 544, 1989 R.I. LEXIS 11 (R.I. 1989).

Procedural.

A judgment secured in New York state against a joint debtor, who was not served with process, and based merely on acknowledgment of the other joint debtor, was not such a judgment as entitled to due faith and credit in Rhode Island against the joint debtor not served with process. Frothingham v. Barnes, 9 R.I. 474 , 1870 R.I. LEXIS 9 (1870).

Under this section and the laws enacted in pursuance thereof, a Rhode Island court will take judicial notice of the laws of a sister state respecting the effect of an appeal when a judgment of such state which is pending on appeal is pleaded in bar to an action in Rhode Island. Paine v. Schenectady Ins. Co., 11 R.I. 411 , 1877 R.I. LEXIS 8 (1877).

Debtor on Massachusetts judgment could not under full faith and credit clause of the United States Constitution contend that the judgment was void because written agreement for judgment was signed by attorneys without debtor’s knowledge, consent or authorization, where he was duly served or entered appearance and Massachusetts court had jurisdiction of subject matter and person. Crawford v. Hindle, 60 R.I. 135 , 197 A. 433, 1938 R.I. LEXIS 120 (1938).

— Enforcement.

Judgment of another state will not be enforced where it appears from the record or from uncontradicted facts that defendant was not a resident of such state at time of action and had no personal notice. Rathbone v. Terry, 1 R.I. 73 , 1837 R.I. LEXIS 1 (1837).

Execution cannot be issued upon judgments of sister states without a new suit in the tribunals of the states where they are to be enforced. Cole v. Cunningham, 133 U.S. 107, 10 S. Ct. 269, 33 L. Ed. 538, 1890 U.S. LEXIS 1895 (1890).

Although mere modes of execution provided by the laws of a state in which a judgment is rendered are not by operation of this section obligatory upon courts of another state, nevertheless, if the judgment be an enforceable judgment in the state where rendered, the duty to give effect to it in another state clearly results from this section, although the mode of procedure to enforce the collection may not be the same in both states. Sistare v. Sistare, 218 U.S. 1, 30 S. Ct. 682, 54 L. Ed. 905, 1910 U.S. LEXIS 2000 (1910).

Utah order denying a nonresident shareholder’s motion to dismiss for lack of personal jurisdiction was not entitled to full faith and credit in Rhode Island because the issue of personal jurisdiction as to the shareholder was not fully and fairly litigated and then finally decided in Utah. Neither the shareholder, nor counsel for the shareholder, appeared at a hearing in Utah on the shareholder’s motion to dismiss, and the Utah court’s order contained no discussion, analysis, or legal reasoning and merely referenced that plaintiff had made a prima facie showing of sufficient facts to establish personal jurisdiction. Hawes v. Reilly, 184 A.3d 661, 2018 R.I. LEXIS 57 (R.I. 2018), cert. denied, 139 S. Ct. 1321, 203 L. Ed. 2d 564, 2019 U.S. LEXIS 1899 (2019).

— Proof.

Judgment of another state is conclusive evidence and no inquiry can be made into merits of case if such state had jurisdiction, the parties had personal notice, and the judgment is authenticated as prescribed by congress. Rathbone v. Terry, 1 R.I. 73 , 1837 R.I. LEXIS 1 (1837).

Judgment of another state is prima facie evidence only if jurisdiction of such state is questioned. Rathbone v. Terry, 1 R.I. 73 , 1837 R.I. LEXIS 1 (1837).

When duly pleaded and proved in the court of another state judgments have the effect of being not merely prima facie evidence, but conclusive proof of the rights thereby adjudicated. Huntington v. Attrill, 146 U.S. 657, 13 S. Ct. 224, 36 L. Ed. 1123, 1892 U.S. LEXIS 2224 (1892).

Judgments of a foreign country are not given full faith and credit when sued upon in the United States, but are prima facie evidence only of the justice of the claim. Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139, 40 L. Ed. 95, 1895 U.S. LEXIS 2294 (1895).

— Statute of Limitations.

The “full faith and credit” clause required South Dakota courts to observe provisions in Ohio fraternal benefit society by-laws establishing limitation period of six months, though South Dakota law declared void any contract stipulation reducing limitation to less than six years. Order of United Commercial Travelers v. Wolfe, 331 U.S. 586, 67 S. Ct. 1355, 91 L. Ed. 1687, 1947 U.S. LEXIS 2161 (1947), limited, Clay v. Sun Ins. Office, Ltd., 377 U.S. 179, 84 S. Ct. 1197, 12 L. Ed. 2d 229, 1964 U.S. LEXIS 1276 (1964).

Workers’ Compensation.

The full faith and credit clause erects no constitutional barrier to preclude successive workers’ compensation awards since one state has no legitimate interest in preventing another state from granting a supplemental compensation award when that second state would have had the power to apply its workers’ compensation law in the first instance. Silva v. James Ursini Co., 475 A.2d 205, 1984 R.I. LEXIS 495 (R.I. 1984).

Delivery of Fugitives.

The right to “demand” implies an absolute right and there is a correlative obligation to deliver without reference to character of crime charged. Kentucky v. Dennison, 65 U.S. (24 How.) 66, 16 L. Ed. 717, 1860 U.S. LEXIS 376 (1861), overruled in part, Puerto Rico v. Branstad, 483 U.S. 219, 107 S. Ct. 2802, 97 L. Ed. 2d 187, 1987 U.S. LEXIS 2873 (1987).

It is questionable whether the states can constitutionally enter into any agreement with each other for the purpose of defining or limiting the offenses for which fugitives will or shall be surrendered. Lascelles v. Georgia, 148 U.S. 537, 13 S. Ct. 687, 37 L. Ed. 549, 1893 U.S. LEXIS 2250 (1893).

Statute prohibiting the extradition of juveniles was unconstitutional. In re Robert, 122 R.I. 356 , 406 A.2d 266, 1979 R.I. LEXIS 2171 (1979).

— Extraditable Offenses.

The words “treason, felony or other crime” includes every act forbidden and made punishable by a law of the state. Kentucky v. Dennison, 65 U.S. (24 How.) 66, 16 L. Ed. 717, 1860 U.S. LEXIS 376 (1861), overruled in part, Puerto Rico v. Branstad, 483 U.S. 219, 107 S. Ct. 2802, 97 L. Ed. 2d 187, 1987 U.S. LEXIS 2873 (1987).

An indictment describing false swearing charges a crime within the meaning of this clause. Pierce v. Creecy, 210 U.S. 387, 28 S. Ct. 714, 52 L. Ed. 1113, 1908 U.S. LEXIS 1518 (1908).

— Fugitive From Justice.

Upon the executive of the state rests the responsibility of determining whether or not the accused is a fugitive from justice. Ex parte Reggel, 114 U.S. 642, 5 S. Ct. 1148, 29 L. Ed. 250, 1885 U.S. LEXIS 1805 (1885).

A person, who was not within the state at the time stated in the indictment, or at any time when the acts were committed, was not a fugitive from justice, and his subsequent presence for one day in the state, eight days after commission of alleged offense, did not render him a fugitive from justice when he left the state. Hyatt v. People ex rel. Corkran, 188 U.S. 691, 23 S. Ct. 456, 47 L. Ed. 657, 1903 U.S. LEXIS 1313 (1903).

A person charged by indictment or affidavit before a magistrate with the commission of a crime within the state, who after the date of the commission of such crime leaves the state, no matter for what purpose or with what motive, or under what belief, is from the time of such leaving a fugitive from justice. Appleyard v. Massachusetts, 203 U.S. 222, 27 S. Ct. 122, 51 L. Ed. 161, 1906 U.S. LEXIS 1584 (1906).

A criminal need not do within the state the overt act necessary to complete the crime, and if he does there an overt act which is and is intended to be a material step toward accomplishment of the crime, and then absents himself from the state and does the rest elsewhere, he is a fugitive from justice. Strassheim v. Daily, 221 U.S. 280, 31 S. Ct. 558, 55 L. Ed. 735, 1911 U.S. LEXIS 1733 (1911).

— Habeas Corpus.

Habeas corpus to secure release of one held for extradition is not a criminal proceeding, and the governor’s warrant is prima facie evidence of rightful custody, and the court should not discharge the prisoner except on the showing of clear and satisfactory evidence that the alleged fugitive is not properly held. South Carolina v. Bailey, 289 U.S. 412, 53 S. Ct. 667, 77 L. Ed. 1292, 1933 U.S. LEXIS 187 (1933).

— Procedure.

The issuing of a warrant by the governor with or without a recital therein that the person demanded is a fugitive from justice is sufficient, and such person has no constitutional right to be heard on the question as to whether he had been substantially charged with a crime. Munsey v. Clough, 196 U.S. 364, 25 S. Ct. 282, 49 L. Ed. 515, 1905 U.S. LEXIS 907 (1905).

Nothing in this section prohibits a state demanding extradition from appointing a citizen of the asylum state as its agent for receiving a fugitive and delivering him to the demanding state. Bailey v. Laurie, 118 R.I. 184 , 373 A.2d 482, 1977 R.I. LEXIS 1444 (1977).

Privileges and Immunities.

The act which prohibits persons not inhabitants of Rhode Island or not domiciled there from taking oysters and other shellfish within the waters or on the shores of the state (Dig. 1844, p. 533, § 6) is not in violation of this section of the Constitution. State v. Medbury, 3 R.I. 138 , 1855 R.I. LEXIS 17 (1855).

Statutes which distinguish between rights of residents and nonresidents of the state may be valid so long as the statutes do not infringe upon rights incident to citizenship, so that a Virginia statute which prohibited nonresidents from catching fish in the waters of the state for the manufacture of oil was not in violation of this section. Chambers Bros. v. Joseph Church & Co., 14 R.I. 398 , 1884 R.I. LEXIS 23 (1884).

Defendant was not denied the protection of the privileges and immunities clause by G.L. 1896, ch. 155, § 4 [former § 5-31-2] barring him from practice of dentistry in Rhode Island until he had passed an examination even though authorized to practice in another state, since all applicants were treated alike whether residents of Rhode Island or of other states. State v. Rosenkrans, 30 R.I. 374 , 75 A. 491, 1910 R.I. LEXIS 29 (1910), aff'd, 225 U.S. 698, 32 S. Ct. 840, 56 L. Ed. 1263, 1912 U.S. LEXIS 2124 (1912).

P.L. 1948, ch. 2120 violated the privileges and immunities clause where it virtually excluded nonresidents from catching or taking menhaden by purse net or seine, while no such prohibition existed as to residents of state. Edwards v. Leaver, 102 F. Supp. 698, 1952 U.S. Dist. LEXIS 4784 (D.R.I. 1952).

The decal-fee requirement, as it existed under § 31-36.1-3 between 1982 and 1987, which was applied only to nonresident motor carriers to insure compliance with the Fuel Use Reporting Law, chapter 36.1 of title 31, did not violate the privileges and immunities clause given that the plaintiff provided no evidence to indicate that the fee was unnecessary to administer the Fuel Use Reporting Law or that the purpose of the statute was to punish nonresidents. The fee was a reasonable expense to cover the cost of administering the tax gain. Seibert v. Clark, 619 A.2d 1108, 1993 R.I. LEXIS 27 (R.I. 1993).

— Construction.

The clause relating to privileges and immunities is directed against state action. United States v. Harris, 106 U.S. 629, 1 S. Ct. 601, 27 L. Ed. 290, 1882 U.S. LEXIS 1595 (1883).

The clause dealing with privileges and immunities does not deny to the state or confer upon the United States the power to punish acts by individuals in violation of the right of equality of privileges and immunity. United States v. Wheeler, 254 U.S. 281, 41 S. Ct. 133, 65 L. Ed. 270, 1920 U.S. LEXIS 1159 (1920), disapproved, United States v. Guest, 383 U.S. 745, 86 S. Ct. 1170, 16 L. Ed. 2d 239, 1966 U.S. LEXIS 2838 (1966).

— Citizens.

The privileges secured by the privileges and immunities clause are those which belong to citizenship. Conner v. Elliott, 59 U.S. (18 How.) 591, 15 L. Ed. 497, 1855 U.S. LEXIS 740 (1856).

Corporations are not citizens within the meaning of that term under the privileges and immunities clause. Paul v. Virginia, 75 U.S. (8 Wall.) 168, 19 L. Ed. 357, 1868 U.S. LEXIS 1092 (1869), limited, Western Union Tel. Co. v. Kansas, 216 U.S. 1, 30 S. Ct. 190, 54 L. Ed. 355, 1910 U.S. LEXIS 1870 (1910), limited, Buck Stove & Range Co. v. Vickers, 226 U.S. 205, 33 S. Ct. 41, 57 L. Ed. 189, 1912 U.S. LEXIS 2146 (1912), overruled in part, United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S. Ct. 1162, 88 L. Ed. 1440, 1944 U.S. LEXIS 1199 (1944).

The sole purpose of the privileges and immunities provision is to declare to the several states that whatever those rights, which you grant or establish for your own citizens, or which you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, is the measure of the rights of citizens of the other states within your jurisdiction. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L. Ed. 394, 1872 U.S. LEXIS 1139 (1873).

The privileges and immunities clause does not apply, if the plaintiff is a citizen of the state of whose action he complains. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 21 L. Ed. 442, 1872 U.S. LEXIS 1140 (1873).

The Massachusetts trust is a corporation and is not entitled to do business in a state unless it complies with laws relative to foreign corporations except in the state where it is organized. Hemphill v. Orloff, 277 U.S. 537, 48 S. Ct. 577, 72 L. Ed. 978, 1928 U.S. LEXIS 696 (1928).

Admission of New States.

New states have the same rights, sovereignty, and jurisdiction over the shores of navigable waters and the soils under them as the original states. Pollard v. Hagan, 44 U.S. (3 How.) 212, 11 L. Ed. 565, 1845 U.S. LEXIS 431 (1845).

Laws passed in state before admission into the Union cannot conflict with Constitution of the United States. League v. De Young, 52 U.S. (11 How.) 185, 13 L. Ed. 657, 1850 U.S. LEXIS 1502 (1851).

The rights of local sovereignty including the title to land held in trust for municipal uses, and in the shores of navigable waters below high-water mark, vest in the state and not in the United States upon admission into the Union. Van Brocklin v. Tennessee, 117 U.S. 151, 6 S. Ct. 670, 29 L. Ed. 845, 1886 U.S. LEXIS 1822 (1886).

Rights under patents of the United States for public lands bordering on or bounded by navigable waters, which are not tidal waters, do not include rights below high-water marks, and do not impair the title and dominion of the future state when created to control over the shores. McGilvra v. Ross, 215 U.S. 70, 30 S. Ct. 27, 54 L. Ed. 95, 1909 U.S. LEXIS 1733 (1909).

A provision of an enabling act that a certain city shall be the capital of the state is of no effect after admission of territory into the Union. Coyle v. Smith, 221 U.S. 559, 31 S. Ct. 688, 55 L. Ed. 853, 1911 U.S. LEXIS 1757 (1911).

Disposal of Property.

Congress may grant any land below high-water mark of navigable waters in a territory whenever it becomes necessary to do so in order to perform international obligations, or to effect the improvement of such land for the promotion and convenience of commerce with foreign nations and among the several states, or to carry out other public purposes appropriate to the objects for which the United States hold the territory. Shively v. Bowlby, 152 U.S. 1, 14 S. Ct. 548, 38 L. Ed. 331, 1894 U.S. LEXIS 2090 (1894).

Tenth Amendment is not applicable to the power of disposition conferred by this provision, and the power is not withdrawn by the Ninth Amendment. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S. Ct. 466, 80 L. Ed. 688, 1936 U.S. LEXIS 947 (1936).

Property acquired by the United States for a post office, but abandoned for that purpose may be leased while the government is awaiting a sale of the property, and during such period cannot be taxed. City of Springfield v. United States, 99 F.2d 860, 1938 U.S. App. LEXIS 3011 (1st Cir. 1938), cert. denied, 306 U.S. 650, 59 S. Ct. 592, 83 L. Ed. 1049, 1939 U.S. LEXIS 768 (1939).

Electricity.

Electric energy developed at government dam is “property” of the government. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S. Ct. 466, 80 L. Ed. 688, 1936 U.S. LEXIS 947 (1936).

Contract between the Tennessee Valley Authority and a private power company providing for purchase by the authority of transmission lines leading from government dam to power market, for the purchase of real property, for an interchange of hydroelectric energy, for the sale by the authority to the power company of its “surplus power,” and for mutual restrictions as to areas to be served, was valid. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S. Ct. 466, 80 L. Ed. 688, 1936 U.S. LEXIS 947 (1936).

National Parks and Forests.

Congress has the power to establish public forest reservations in the public domain without the consent of state in which the land is located. Light v. United States, 220 U.S. 523, 31 S. Ct. 485, 55 L. Ed. 570, 1911 U.S. LEXIS 1696 (1911).

Taxation of Property.

Lands of power company which were submerged in the construction of a dam under federal license could be assessed at a greater value than surrounding land without violating United States Constitution. Susquehanna Power Co. v. State Tax Comm'n, 283 U.S. 291, 51 S. Ct. 434, 75 L. Ed. 1042, 1931 U.S. LEXIS 852 (1931).

Where oil and gas lessee commingled oil taken from restricted and unrestricted land, the oil was subject to state taxation, as against contention that lessee was an agency of the federal government. Indian Territory Illuminating Oil Co. v. Board of Equalization, 288 U.S. 325, 53 S. Ct. 388, 77 L. Ed. 812, 1933 U.S. LEXIS 952 (1933).

Tidelands.

Absolute property in, and dominion and sovereignty over the soils under the tidewaters in the original states were reserved to the several states, and new states admitted into the Union have the same rights in that behalf as the original states. Knight v. United States Land Ass'n, 142 U.S. 161, 12 S. Ct. 258, 35 L. Ed. 974, 1891 U.S. LEXIS 2579 (1891).

United States has title to and paramount rights in lands underlying Pacific Ocean within three miles of low-water mark on California coast, excluding bays, harbors, and other inland waters. United States v. California, 332 U.S. 19, 67 S. Ct. 1658, 91 L. Ed. 1889, 1947 U.S. LEXIS 2865 (1947).

Form of State Government.

The word “state” as used in this section means a people or political community, as distinguished from a government. Texas v. White, 74 U.S. (1 Wall.) 700, 19 L. Ed. 227, 1868 U.S. LEXIS 1056 (1869), overruled in part, Morgan v. United States, 113 U.S. 476, 5 S. Ct. 588, 28 L. Ed. 1044, 1885 U.S. LEXIS 1698 (1885).

The enforcement of this guaranty belongs to the political department, and the supreme court has no jurisdiction to review a decision of a state court relative to an election contest before the general assembly of the state. Taylor v. Beckham, 178 U.S. 548, 20 S. Ct. 890, 44 L. Ed. 1187, 1900 U.S. LEXIS 1702 (1900).

Protection of the States.

Congress in case of insurrection in any state may authorize the president to call out the militia of other states to suppress the insurrection. Luther v. Borden, 48 U.S. (7 How.) 1, 12 L. Ed. 581, 1849 U.S. LEXIS 337 (1849).

The United States has no power and is not required to do mere police duty in the states. United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588, 1875 U.S. LEXIS 1794 (1876).

Federal court did not have jurisdiction to determine whether R.I. Const., Amend. 5 (now annulled), was legally adopted where governor had declared the amendment adopted and no other authority or department had declared to the contrary. Smith v. Good, 34 F. 204, 1888 U.S. App. LEXIS 2268 (C.C.D.R.I. 1888).

The distinguishing feature of a republican form of government is the right of the people to choose their own officers for governmental administration and pass their own laws. In re Duncan, 139 U.S. 449, 11 S. Ct. 573, 35 L. Ed. 219, 1891 U.S. LEXIS 2396 (1891).

Associational Rights.

State law, the provisions of which affixed a size for ward committees of the city, was unconstitutional and imposed a substantial burden upon plaintiffs’ associational rights. Fahey v. Darigan, 405 F. Supp. 1386, 1975 U.S. Dist. LEXIS 14856 (D.R.I. 1975).

In addition to the general rule that the judiciary ought not to interfere with the internal affairs of political parties and the belief that a large public interest is served in allowing the political processes to function free from judicial supervision, to some extent, the autonomy of political parties and other private groups is constitutionally protected by this amendment, and political parties are therefore generally recognized to have certain “inherent powers of self-government” and to be vested with wide discretion to interpret and decide their own regulations, rules, and disputes. Lee v. Nielsen, 120 R.I. 579 , 388 A.2d 1176, 1978 R.I. LEXIS 700 (1978).

Substantial first amendment question was raised where plaintiffs alleged that the Providence Board of Canvassers had impermissibly burdened the right of association by conditioning appointment as a voter registrar upon membership in or affiliation with one of three selected organizations. Rhode Island Minority Caucus, Inc. v. Baronian, 590 F.2d 372, 1979 U.S. App. LEXIS 17664 (1st Cir. 1979).

Denial of permission to a group to hold a charitable raffle because of one member’s political beliefs impermissibly burdens that group’s ability to exist and thereby impinges on its members’ associational rights. Rhode Island Affiliate, American Civil Liberties Union, Inc. v. Rhode Island Lottery Comm'n, 553 F. Supp. 752, 1982 U.S. Dist. LEXIS 16453 (D.R.I. 1982).

Even a mere inquiry into a person’s views or associations solely for the purpose of withholding a right or benefit because of what he believes violates the First Amendment. Rhode Island Affiliate, American Civil Liberties Union, Inc. v. Rhode Island Lottery Comm'n, 553 F. Supp. 752, 1982 U.S. Dist. LEXIS 16453 (D.R.I. 1982).

The federal fish and wildlife service’s actions in closing a beach area used by nude bathers, in order to preserve the nesting habitat of a threatened bird species, does not infringe upon any associational right, property right or other constitutionally recognized right secured to the bathers by the first, fifth, and/or ninth amendments. New England Naturist Ass'n v. Larsen, 692 F. Supp. 75, 1988 U.S. Dist. LEXIS 8264 (D.R.I. 1988).

Plaintiff failed to establish that his employment termination from a position with the state was because of his political affiliation with the prior governor and not the result of state budget cuts. Picerne v. Sundlun, 789 F. Supp. 511, 1992 U.S. Dist. LEXIS 5742 (D.R.I. 1992).

Section 17-15-6 , requiring primary elections, did not impermissibly infringe on the associational rights of members of a political party whose bylaws provide for selection of its nominees at a caucus in which only party members may participate. Cool Moose Party v. Rhode Island, 6 F. Supp. 2d 116, 1998 U.S. Dist. LEXIS 8033 (D.R.I. 1998), aff'd, 183 F.3d 80, 1999 U.S. App. LEXIS 20800 (1st Cir. 1999).

To the extent that § 17-15-24 (preventing members and candidates of one party from voting in another party’s primary) prohibits any otherwise eligible voter from voting in a party’s primary when the party’s bylaws would permit them to do so, it unconstitutionally infringes on the party’s members’ freedom of association. Cool Moose Party v. Rhode Island, 6 F. Supp. 2d 116, 1998 U.S. Dist. LEXIS 8033 (D.R.I. 1998), aff'd, 183 F.3d 80, 1999 U.S. App. LEXIS 20800 (1st Cir. 1999).

Where the pleadings below suggested that the plaintiff’s objection to the nomination by primary requirement was based on constitutional associational rights, and not on equal protection concerns, the general challenge was insufficient to raise a “disparate impact” challenge. Cool Moose Party v. Rhode Island, 183 F.3d 80, 1999 U.S. App. LEXIS 20800 (1st Cir. 1999).

Claims Against Church Officials.

The First Amendment does not divest secular courts of jurisdiction over claims against officials of hierarchical churches where liability is predicated upon the officials’ alleged failure to take appropriate action to prevent sexual assaults by clergy subject to their authority. Smith v. O'Connell, 986 F. Supp. 73, 1997 U.S. Dist. LEXIS 18957 (D.R.I. 1997).

It is the U.S. Const., Amend. 1, and not Art. 3, that prohibits secular courts from intervening in the internal affairs of hierarchical churches by deciding issues of religious doctrine. Kelly v. Marcantonio, 187 F.3d 192, 1999 U.S. App. LEXIS 18396 (1st Cir. 1999).

Establishment of Religion.

This amendment does not select any one group or any one type of religion for preferred treatment, but it puts them all in that position. United States v. Ballard, 322 U.S. 78, 64 S. Ct. 882, 88 L. Ed. 1148, 1944 U.S. LEXIS 810 (1944).

The Supreme Court has developed a three-part test to determine whether particular statutes violate the establishment clause; first, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion. Members of Jamestown School Committee v. Schmidt, 427 F. Supp. 1338, 1977 U.S. Dist. LEXIS 17022 (D.R.I. 1977); Rhode Island Federation of Teachers v. Norberg, 479 F. Supp. 1364, 1979 U.S. Dist. LEXIS 8537 (D.R.I. 1979), aff'd, 630 F.2d 855, 1980 U.S. App. LEXIS 13967 (1st Cir. 1980).

The pivotal factor in determining the constitutionality of tax devices affecting religious institutions or religious education has been the breadth of the affected class. Rhode Island Federation of Teachers v. Norberg, 630 F.2d 855, 1980 U.S. App. LEXIS 13967 (1st Cir. 1980).

The constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355, 79 L. Ed. 2d 604, 1984 U.S. LEXIS 37 (1984).

— Unemployment Compensation.

The exclusion for religious organizations in § 28-42-8 does not manifest any governmental intent or purpose to advance or promote religion. Instead, the statute reflects the wholly secular purpose of the facilitation of the administration of the unemployment benefits programs by excluding employees who are typically not fully active or permanent members of the workforce. Rojas v. Fitch, 928 F. Supp. 155, 1996 U.S. Dist. LEXIS 8122 (D.R.I. 1996), aff'd, 127 F.3d 184, 1997 U.S. App. LEXIS 27932 (1st Cir. 1997).

Freedom of Press.

The liberty of the press is not confined to newspapers and periodicals, but embraces pamphlets and leaflets, and any sort of publication which affords a vehicle of information and opinion. Lovell v. City of Griffin, 303 U.S. 444, 58 S. Ct. 666, 82 L. Ed. 949, 1938 U.S. LEXIS 297 (1938).

Application of the Sherman Act to an association of newspaper publishers engaged in the business of collection, assembly, and distribution of news does not constitute an abridgement of freedom of the press. Associated Press v. United States, 326 U.S. 1, 65 S. Ct. 1416, 89 L. Ed. 2013, 1945 U.S. LEXIS 2663 (1945).

A decree enjoining newspaper company from forcing its advertisers to cease advertising over radio broadcasting station does not violate freedom of the press. Lorain Journal Co. v. United States, 342 U.S. 143, 72 S. Ct. 181, 96 L. Ed. 162, 1951 U.S. LEXIS 2488 (1951).

Obscenity is not within the area of constitutionally protected speech or press. State v. Settle, 90 R.I. 195 , 156 A.2d 921, 1959 R.I. LEXIS 138 (1959).

Where a commission acted pursuant to legislative act in compiling lists of publications which it deemed completely objectionable for sale to youths under eighteen years of age and notified distributors doing business within the state, asking their cooperation in removing the objectionable publications from sale, to eliminate the necessity of recommending prosecution; and also sending these lists to local police authorities, it violated this amendment and United States Const., Amend. 14 in that it deprived a publisher of his constitutional right to distribute his books in the state without a hearing. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S. Ct. 631, 9 L. Ed. 2d 584, 1963 U.S. LEXIS 2094 (1963).

Magazines not depicting any act of sexual intercourse, sodomy, or sadism; nor containing any photographs of an orgy-like character; but containing pictures of nude or scantily clad women posed to focus on the pubic area or the breasts, frontal views of nude or seminude males with emphasis on the penis, and mixed groups of nude or partially clad males and females posed to draw attention to their genitalia, are not hard-core pornography. In re Seven Magazines, 107 R.I. 540 , 268 A.2d 707, 1970 R.I. LEXIS 806 (1970).

Ordinance of City of Providence requiring that motion picture film be available for showing at the time application is made for licensing thereof and also that application be made not later than 48 hours prior to the first day on which the picture is to be shown was not patent harassment, but a valid regulatory measure, in situation where requirements resulted in nothing more than infrequent inconvenience. Shipyard Drive-In-Theatre v. Scuncio, 107 R.I. 554 , 268 A.2d 820, 1970 R.I. LEXIS 807 (1970), cert. denied, 401 U.S. 1005, 91 S. Ct. 1252, 28 L. Ed. 2d 541, 1971 U.S. LEXIS 2476 (1971).

Ordinance provision requiring $5 for Sunday motion picture licenses when $2 was required for weekday licenses was without legal sanction, where record failed to show that cost of policing Sunday exhibitions was greater than required for weekdays. Shipyard Drive-In-Theatre v. Scuncio, 107 R.I. 554 , 268 A.2d 820, 1970 R.I. LEXIS 807 (1970), cert. denied, 401 U.S. 1005, 91 S. Ct. 1252, 28 L. Ed. 2d 541, 1971 U.S. LEXIS 2476 (1971).

In an action to declare movie obscene city bureau of licenses has burden to present evidence on question whether allegedly obscene movie violates “contemporary community standards”. Scuncio v. Columbus Theatre, 108 R.I. 613 , 277 A.2d 924, 1971 R.I. LEXIS 1316 (1971).

Since it is a national constitution that is being expounded, the status of allegedly obscene material in movie must be determined by a national rather than Rhode Island standard. Scuncio v. Columbus Theatre, 108 R.I. 613 , 277 A.2d 924, 1971 R.I. LEXIS 1316 (1971).

The right of access to criminal trials, as established in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980), does not apply to juvenile proceedings. Edward A. Sherman Publishing Co. v. Goldberg, 443 A.2d 1252, 1982 R.I. LEXIS 834 (R.I. 1982).

The portion of a court order conditioning the attendance of reporters from a certain newspaper at juvenile proceedings upon their agreeing in advance not to publish the name of the juvenile was impermissibly overbroad, as well as an unconstitutional prior restraint on the press. Edward A. Sherman Publishing Co. v. Goldberg, 443 A.2d 1252, 1982 R.I. LEXIS 834 (R.I. 1982).

Free press rights of newspaper do not constitute “good cause” required by Congress to justify disclosure to newspaper of wiretap evidence in criminal trial being covered by newspaper. United States v. Ferle, 563 F. Supp. 252, 1983 U.S. Dist. LEXIS 17039 (D.R.I. 1983).

A party subject to an order that constitutes a transparently invalid prior restraint on pure speech may challenge the order by violating it. In re Providence Journal Co., 820 F.2d 1342, 1986 U.S. App. LEXIS 36502 (1st Cir. 1986), modified, 820 F.2d 1354, 1987 U.S. App. LEXIS 6752 (1st Cir. 1987).

A public civic center and concert promotors did not abridge a photojournalist’s first amendment rights by enforcing a “no camera” rule at rock concerts. D'Amario v. Providence Civic Center Authority, 639 F. Supp. 1538, 1986 U.S. Dist. LEXIS 22131 (D.R.I. 1986), aff'd, 815 F.2d 692, 1987 U.S. App. LEXIS 4780 (1st Cir. 1987).

There is no First Amendment privilege, qualified or otherwise, to allow a media defendant or newsperson to refuse to divulge its, his, or her confidential sources and the information obtained therefrom in a defamation action when this information is obviously both relevant and essential to plaintiffs. Capuano v. Outlet Co., 579 A.2d 469, 1990 R.I. LEXIS 149 (R.I. 1990).

It is not necessary for a defamation plaintiff to engage in preliminary investigations and depositions before being permitted to ask the questions about confidential sources directly of those whose knowledge and state of mind are critical to the determination of the issue of “actual malice” to the defendant. Capuano v. Outlet Co., 579 A.2d 469, 1990 R.I. LEXIS 149 (R.I. 1990).

Where the plaintiffs have verified their involvement in the alleged interstate waste-collection and disposal scheme reported by defendant, have been prominently referenced in these newspaper articles, and have consented to be interviewed or made statements to members of the media about their businesses as they relate to this controversy, thus, the plaintiffs have, by virtue of their business operations and efforts to resolve this matter, injected themselves into the public’s eye, if only for the limited purposes of this controversy. Capuano v. Outlet Co., 579 A.2d 469, 1990 R.I. LEXIS 149 (R.I. 1990).

A statute which exempted Bibles and other canonized scriptures from sales tax unlawfully defined and rewarded its beneficial recipients based upon the content and type of publication, effectively requiring retailers to ask government officials for a determination of potential exemption on newly published material, and providing an example of the type of excessive, content-based entanglement between government and the subject matter of publications that the free press clause of the first amendment was designed to prohibit. Ahlburn v. Clark, 728 A.2d 449, 1999 R.I. LEXIS 89 (R.I. 1999).

The legislature’s placement of a sales-tax exemption for canonized religious literature in a section of the general laws that also exempts newspapers, textbooks, and promotional boat literature, amidst a potpourri of additional, unrelated items, was not carefully drawn to achieve the stated goal of advancing the well-being of the individuals of the state on many levels, but rather fostered the communication of certain privileged publications in a manner that was anything but content neutral, unconstitutionally abridging the freedom of the press. Ahlburn v. Clark, 728 A.2d 449, 1999 R.I. LEXIS 89 (R.I. 1999).

Contempt adjudications against print and broadcast media were set aside because they did not provide sufficient notice regarding restrictions on publishing information regarding witnesses in a celebrated murder trial, one witness in which had been murdered on the eve of trial; furthermore, the court held that the underlying prior restraints were also too restrictive to pass First Amendment muster. In re Court Order Dated October 22, 2003., 886 A.2d 342, 2005 R.I. LEXIS 158 (R.I. 2005).

— Criminal Proceedings.

A protective order prohibiting the press access to materials obtained by discovery under Super. Ct. R. Crim. P. Rule 16 must: (1) be narrowly tailored to serve the interests sought to be protected, (2) be the only reasonable alternative, (3) permit access to those parts of the record not deemed sensitive, and (4) be accompanied by the trial justice’s specific findings explaining the necessity for the order. State v. Cianci, 496 A.2d 139, 1985 R.I. LEXIS 565 (R.I. 1985).

Where the trial court’s only reason for denying the press access to materials discovered pursuant to Super. Ct. R. Crim. P. Rule 16 was that disclosure “could create a substantial probability that defendant would not get a fair trial”, the trial court’s blanket statement of a potential prejudice was insufficient to demonstrate compelling reasons for ordering the sealing of the discovery documents. State v. Cianci, 496 A.2d 139, 1985 R.I. LEXIS 565 (R.I. 1985).

— Judicial Proceedings.

The electronic media have no first amendment right to photograph or broadcast judicial proceedings. Consequently, the reason for allowing broadcasting and photographing of trial procedures is the potential contribution that the media can make in the area of wider public understanding and acceptance of judicial proceedings and decisions. In re Extension of Media Coverage for Further Experimental Period, 472 A.2d 1232, 1984 R.I. LEXIS 482 (R.I. 1984).

Any denial of the press and public’s right of access to a criminal trial must be based on a compelling governmental interest that is narrowly tailored to serve that interest. Providence Journal Co. v. Superior Court, 593 A.2d 446, 1991 R.I. LEXIS 123 (R.I. 1991).

The trial court has an obligation to permit access to those parts of the record not deemed sensitive when a closure is ordered. The court must carefully balance the competing constitutional interests to ensure that the interests of justice are served. Providence Journal Co. v. Superior Court, 593 A.2d 446, 1991 R.I. LEXIS 123 (R.I. 1991).

When limited closure is ordered, the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror’s valid privacy interests. Even then a valid privacy right may rise to a level that part of the transcript should be sealed, or the name of a juror withheld, to protect the person from embarrassment. Providence Journal Co. v. Superior Court, 593 A.2d 446, 1991 R.I. LEXIS 123 (R.I. 1991).

A newspaper’s qualified right of access to an FBI agent’s affidavit that was submitted in support of a request for a warrant to search the Providence City Hall was outweighed by the likelihood that dissemination of the affidavit’s contents prior to trial would prejudice the defendants’ right to a fair trial where (1) the affidavit was unusually prejudicial as it contained many statements that appeared to have little bearing on whether probable cause existed to search the locations in question, (2) it contained more statements attributed to third parties and anonymous sources than are found in a typical search warrant affidavit, as well as an inordinate number of what were nothing more than the affiant’s conclusions and opinions, (3) it was written in a uniquely inflammatory style, with a storybook format that was liberally interspersed with evocative headings and characterizations, and (4) it contained derogatory statements about individuals who had not been charged that were unsubstantiated. United States v. Cianci, 175 F. Supp. 2d 194, 2001 U.S. Dist. LEXIS 20706 (D.R.I. 2001).

— Mails.

An act of congress excluding lottery matter from the mails in no way abridges the freedom of the press or the right of free communication. In re Rapier, 143 U.S. 110, 12 S. Ct. 374, 36 L. Ed. 93, 1892 U.S. LEXIS 2013 (1892).

Freedom of Religion.

The belief in the practice of polygamy, or in the right to indulge in it, is not under the protection of the constitutional guaranty of religious freedom. Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244, 1878 U.S. LEXIS 1374 (1879).

Where postponement of municipal general election scheduled for Rosh Hashanah would impose no significant hardship on city, voters, or candidates and where failure to postpone would force Jewish voters to choose between religious duties and their right to vote, and would also subject election results to later constitutional attack, there was no compelling state or municipal interest requiring that the election be held as originally scheduled. Michaelson ex rel. Lewis v. Booth, 437 F. Supp. 439, 1977 U.S. Dist. LEXIS 14182 (D.R.I. 1977).

All citizens have a constitutional right to peaceably dissuade others of their particular religious views, provided no form of unlawful compulsion is used to effect that purpose. Weiss v. Patrick, 453 F. Supp. 717, 1978 U.S. Dist. LEXIS 17441 (D.R.I. 1978), aff'd, 588 F.2d 818, 1978 U.S. App. LEXIS 7387 (1st Cir. 1978), disapproved, Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 113 S. Ct. 753, 122 L. Ed. 2d 34, 1993 U.S. LEXIS 833 (1993).

The first amendment absolutely protects the holding of any religious belief, no matter how bizarre or irrational. Turner v. Unification Church, 473 F. Supp. 367, 1978 U.S. Dist. LEXIS 14734 (D.R.I. 1978), aff'd, 602 F.2d 458, 1979 U.S. App. LEXIS 15296 (1st Cir. 1979).

Religious operations that endanger public safety, threaten disorder, endanger the health of a member, or drastically differ from social norms may be regulated or prohibited. Turner v. Unification Church, 473 F. Supp. 367, 1978 U.S. Dist. LEXIS 14734 (D.R.I. 1978), aff'd, 602 F.2d 458, 1979 U.S. App. LEXIS 15296 (1st Cir. 1979).

The free exercise clause does not immunize defendants from causes of action that allege involuntary servitude or intentional tortious activity. Turner v. Unification Church, 473 F. Supp. 367, 1978 U.S. Dist. LEXIS 14734 (D.R.I. 1978), aff'd, 602 F.2d 458, 1979 U.S. App. LEXIS 15296 (1st Cir. 1979).

While the freedom to hold religious beliefs and opinions is absolute, the freedom to act in harmony with these religious beliefs and opinions is not beyond state regulation where such restriction serves the public interest by promoting public health and safety or preserving order. In re Palmer, 120 R.I. 250 , 386 A.2d 1112, 1978 R.I. LEXIS 659 (1978).

When an individual shows that the state has interfered with an action of a sincere, religious nature, then the state must establish that there was a compelling state interest in the regulation and that such an interest could not be promoted by a less restrictive means. In re Palmer, 120 R.I. 250 , 386 A.2d 1112, 1978 R.I. LEXIS 659 (1978).

A prisoner’s complaint as to interference with his first amendment rights was too attenuated, where members of the prisoner’s faith were not treated better or worse than others who dined (not by choice) at the correctional institution and some effort was made, to the extent feasible, to honor valid sectarian dietary demands. Chase v. Quick, 596 F. Supp. 33, 1984 U.S. Dist. LEXIS 16780 (D.R.I. 1984).

— Church Literature.

City ordinance restricting right to peddle and distribute literature is invalid as applied to Jehovah’s Witnesses. Jamison v. Texas, 318 U.S. 413, 63 S. Ct. 669, 87 L. Ed. 869, 1943 U.S. LEXIS 889 (1943).

Application of town ordinance imposing license tax on book agents to member of Jehovah’s Witnesses, who was a resident of the town, and who went from house to house selling religious books in the spread of his religion deprived him of his right to freedom of worship. Follett v. Town of McCormick, 321 U.S. 573, 64 S. Ct. 717, 88 L. Ed. 938, 1944 U.S. LEXIS 902 (1944), limited, Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S. Ct. 890, 103 L. Ed. 2d 1, 1989 U.S. LEXIS 662 (1989), limited, Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 110 S. Ct. 688, 107 L. Ed. 2d 796, 1990 U.S. LEXIS 485 (1990).

— Flag Salute.

Resolution requiring school children and teachers to salute the flag, and providing that failure to conform is insubordination violates the guaranty of freedom of religion. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628, 1943 U.S. LEXIS 490 (1943).

— Mails.

In prosecution for using and conspiring to use the mails to defraud by false representations in the organizing and promoting of a religious movement, the truth or verity of defendant’s religious doctrines or beliefs should not have been submitted to the jury. United States v. Ballard, 322 U.S. 78, 64 S. Ct. 882, 88 L. Ed. 1148, 1944 U.S. LEXIS 810 (1944).

— Medical Practice.

Medical examiner’s conduct of an autopsy on the body of a person whose family believed that autopsies were a mutilation of the body did not impair the family’s religious freedom because the state law authorizing autopsies was facially neutral and not enacted with any animus toward any religious group. Yang v. Sturner, 750 F. Supp. 558, 1990 U.S. Dist. LEXIS 15737 (D.R.I. 1990).

— Religious Education.

A state statute permitting reimbursement out of public funds for transportation of parochial school pupils does not violate the First Amendment. Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711, 1947 U.S. LEXIS 2959 (1947).

Utilization of tax supported public school system in aid of religious instruction is prohibited by the First Amendment. Illinois ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 68 S. Ct. 461, 92 L. Ed. 649, 1948 U.S. LEXIS 2451 (1948).

Release of school pupils one hour each week for purpose of religious instruction in their respective faiths in nonschool buildings does not violate the First Amendment. Zorach v. Clauson, 343 U.S. 306, 72 S. Ct. 679, 96 L. Ed. 954, 1952 U.S. LEXIS 2773 (1952).

The Rhode Island Salary Supplement Law (former §§ 16-51-1 — 16-51-9) violates this amendment in so far as it authorizes aid to teachers employed by denominational schools. Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745, 1971 U.S. LEXIS 19 (1971).

Where 95% of the nonpublic elementary schools were operated by the Roman Catholic Church under the supervision of the Bishop and the parish priests and where almost all school principals were nuns, over half of the teachers were nuns, the majority of lay teachers were Roman Catholics and the teachers’ handbooks directed that religious education not be confined to formal courses, the school system was an integral part of the religious mission of the Roman Catholic Church and the potential for entanglement of government and religion in former §§ 16-51-1 — 16-51-9 providing state aid for teachers violated this amendment. Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745, 1971 U.S. LEXIS 19 (1971).

The state could not permit tax deductions to be taken for sectarian books or instructional materials or for instructional equipment that is used for sectarian purposes. Rhode Island Federation of Teachers v. Norberg, 630 F.2d 855, 1980 U.S. App. LEXIS 13967 (1st Cir. 1980).

Protecting the health, safety and welfare of pupils who live at such distances from the schools which they attend as to make it impractical or hazardous to require the pupil to walk to school is a constitutionally permissible secular purpose for § 16-21.1 et seq. which provides bus transportation for children attending sectarian schools. Members of Jamestown School Committee v. Schmidt, 699 F.2d 1, 1983 U.S. App. LEXIS 31231 (1st Cir.), cert. denied, 464 U.S. 851, 104 S. Ct. 162, 78 L. Ed. 2d 148, 1983 U.S. LEXIS 1537 (1983).

So long as public and sectarian school children are bused to their own schools, and the same standard of remoteness applies to public and sectarian school students alike, the fact that public school students are ordinarily ineligible for busing to schools beyond district lines does not render § 16-21.1-1 invalid under the Establishment Clause or the Equal Protection Clause. Members of Jamestown School Committee v. Schmidt, 699 F.2d 1, 1983 U.S. App. LEXIS 31231 (1st Cir.), cert. denied, 464 U.S. 851, 104 S. Ct. 162, 78 L. Ed. 2d 148, 1983 U.S. LEXIS 1537 (1983).

Section 16-21.1-3 , requiring the commissioner of education to determine whether a particular sectarian school is regionalized and to determine whether it is similar to another school for the purpose of granting a transportation variance, creates excessive entanglement of church and state and is therefore unconstitutional under the first amendment. Members of Jamestown School Committee v. Schmidt, 699 F.2d 1, 1983 U.S. App. LEXIS 31231 (1st Cir.), cert. denied, 464 U.S. 851, 104 S. Ct. 162, 78 L. Ed. 2d 148, 1983 U.S. LEXIS 1537 (1983).

Section 16-23-2 , under which textbooks may be lent for use in sectarian schools, does not violate this amendment. Bowerman v. O'Connor, 104 R.I. 519 , 247 A.2d 82, 1968 R.I. LEXIS 676 (1968).

— School Graduations.

A benediction or invocation which invokes a deity delivered by clergy at an annual public school graduation ceremony violates the first amendment. Weisman v. Lee, 728 F. Supp. 68, 1990 U.S. Dist. LEXIS 274 (D.R.I.), aff'd, 908 F.2d 1090, 1990 U.S. App. LEXIS 12275 (1st Cir. 1990).

Including clerical members who offer prayers as part of the official school graduation ceremony is violative of the First Amendment. Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649, 120 L. Ed. 2d 467, 1992 U.S. LEXIS 4364 (1992).

— State or Federal Action.

Although a private agreement to work on Sunday which is unconstitutional if entered into by the state is valid when voluntarily adhered to by the parties, an attempt to seek judicial enforcement would sufficiently involve the state so as to preclude enforcement of the unconstitutional activity. Ciba-Geigy Corp. v. Local #2548, United Textile Workers, 391 F. Supp. 287, 1975 U.S. Dist. LEXIS 13661 (D.R.I. 1975).

Actions of labor union in imposing an oath requirement on member could not be regarded as those of the federal or state governments and thus first and fourteenth amendment strictures did not apply to the union’s action or content of the oath. Hovan v. United Brotherhood of Carpenters & Joiners, 704 F.2d 641, 1983 U.S. App. LEXIS 29062 (1st Cir. 1983).

The imposition of an employment security tax on a Catholic school for payment of benefits to a discharged teacher does not create an unconstitutional burden on the school’s right to the free exercise of religion, where the school has voluntarily elected to participate in the state’s unemployment compensation system even though the services performed for the school are specifically exempt from the provisions of the Employment Security Act. St. Pius X Parish Corp. v. Murray, 557 A.2d 1214, 1989 R.I. LEXIS 74 (R.I. 1989).

— Support of Religion.

The establishment clause does not prohibit a municipality from including a creche, or nativity scene, in its annual Christmas display. Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355, 79 L. Ed. 2d 604, 1984 U.S. LEXIS 37 (1984).

A law need not provide direct financial support to religious institutions themselves in order to have an unconstitutional primary effect. Rhode Island Federation of Teachers v. Norberg, 479 F. Supp. 1364, 1979 U.S. Dist. LEXIS 8537 (D.R.I. 1979), aff'd, 630 F.2d 855, 1980 U.S. App. LEXIS 13967 (1st Cir. 1980).

The mere fact that the state has singled out along religious lines a class of its citizens for special economic benefit is sufficient to defeat an otherwise proper disbursement of state funds. Rhode Island Federation of Teachers v. Norberg, 479 F. Supp. 1364, 1979 U.S. Dist. LEXIS 8537 (D.R.I. 1979), aff'd, 630 F.2d 855, 1980 U.S. App. LEXIS 13967 (1st Cir. 1980).

To pass muster under the establishment clause a statute must have a secular legislative purpose, its principal or primary effect must be one that neither advances nor inhibits religion, and it must not foster an excessive government entanglement with religion. Members of Jamestown School Committee v. Schmidt, 525 F. Supp. 1045, 1981 U.S. Dist. LEXIS 15663 (D.R.I. 1981), aff'd in part and rev'd in part, 699 F.2d 1, 1983 U.S. App. LEXIS 31231 (1st Cir. 1983).

The continuous display, maintenance and preservation of a memorial dedicated to the “Unknown Child” and located on municipal property did not violate the establishment clause. Fausto v. Diamond, 589 F. Supp. 451, 1984 U.S. Dist. LEXIS 15793 (D.R.I. 1984).

Because an adoptee did not prove the existence of good cause for access to the adoption records, and because deferring to the adoptee’s religious beliefs would be a preferential treatment by government, in violation of R.I. Const. art. I, § 3 and the First Amendment, the trial court properly denied the adoptee’s petition. In re Philip S., 881 A.2d 931, 2005 R.I. LEXIS 185 (R.I. 2005).

— Sunday Work.

The overriding concern for the collective bargaining process with its built in protections for minorities justifies an agreement to work on Sunday approved by the majority of the union and the ensuing burden on the right of the minority to practice their religion, and the agreement is not in violation of this amendment. Ciba-Geigy Corp. v. Local #2548, United Textile Workers, 391 F. Supp. 287, 1975 U.S. Dist. LEXIS 13661 (D.R.I. 1975).

— Trials.

Where petitioner claimed that his act of wearing his prayer cap in the courtroom was protected by the free exercise clause of this amendment, in order to justifiably curtail the exercise of that alleged right, the trial justice should first have allowed petitioner to display the sincerity of his religious belief, and then should have balanced petitioner’s right under this amendment with the interest of the court in maintaining decorum in its proceedings by regulating dress in the courtroom. In re Palmer, 120 R.I. 250 , 386 A.2d 1112, 1978 R.I. LEXIS 659 (1978).

Freedom of Speech.

This amendment does not protect the use of language in violation of law, though uttered in connection with exposition of a general theme or subject which is itself within the constitutional limit. Debs v. United States, 249 U.S. 211, 39 S. Ct. 252, 63 L. Ed. 566, 1919 U.S. LEXIS 2194 (1919).

Ordinances which prohibit the distribution of literature, not intrinsically subversive, in public places are unconstitutional as infringing on the liberties of speech and press though passed under the guise of eliminating litter in the streets. Schneider v. State, 308 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155, 1939 U.S. LEXIS 1115 (1939).

Although high policy-making employees from whom the need for personal loyalty and confidence is great may permissibly be terminated for making statements which are otherwise protected by the first amendment, the manager of a decentralized unit of the institute of mental health was not such an employee, since he was charged only with implementing internally and externally imposed hospital policies, and did not enjoy a close working relationship with his superiors such that extraordinary intimacy or confidentiality were required; thus the manager’s criticisms of his superiors were protected under the first amendment. Pilkington v. Bevilacqua, 439 F. Supp. 465, 1977 U.S. Dist. LEXIS 13698 (D.R.I. 1977), aff'd, 590 F.2d 386, 1979 U.S. App. LEXIS 17586 (1st Cir. 1979).

Where the manager of an institute of mental health unit showed that his criticisms of his superiors were a motivating factor in his discharge, and the evidence did not sufficiently support the charge of incompetence that defendant cited as the reason for the manager’s dismissal, the court held that the defendant would not have dismissed the manager in the absence of his protected criticisms, and ordered his reinstatement. Pilkington v. Bevilacqua, 439 F. Supp. 465, 1977 U.S. Dist. LEXIS 13698 (D.R.I. 1977), aff'd, 590 F.2d 386, 1979 U.S. App. LEXIS 17586 (1st Cir. 1979).

Fear of public exposure of previous intra-agency criticism was an impermissible motivation for firing a hospital administrator and brought the speech in question within the ambit of U.S. Const., Amend. 1 protections. Pilkington v. Bevilacqua, 590 F.2d 386, 1979 U.S. App. LEXIS 17586 (1st Cir. 1979).

Even a legitimate interest in school discipline does not outweigh a student’s right to peacefully express his views in an appropriate time, place, and manner. Fricke v. Lynch, 491 F. Supp. 381, 1980 U.S. Dist. LEXIS 11770 (D.R.I. 1980).

It is certainly clear that outside of the classroom the fear — however justified — of a violent reaction is not sufficient reason to restrain speech in advance, and an actual hostile reaction is rarely an adequate basis for curtailing free speech. Fricke v. Lynch, 491 F. Supp. 381, 1980 U.S. Dist. LEXIS 11770 (D.R.I. 1980).

Conduct by the student, in class or out of it, which for any reason — whether it stems from time, place or type of behavior — materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. Fricke v. Lynch, 491 F. Supp. 381, 1980 U.S. Dist. LEXIS 11770 (D.R.I. 1980).

While communicative intent may not always transform conduct into speech, Gay Students Organization v. Bonner, 509 F.2d 652 (1st Cir. 1974), makes it clear that attending a school dance with an escort of the same sex as a statement of homosexual orientation is the type of conduct used as a vehicle for transmitting a message that can be considered protected speech. Fricke v. Lynch, 491 F. Supp. 381, 1980 U.S. Dist. LEXIS 11770 (D.R.I. 1980).

The state may not punish the use of words that mere elicit indignation, disgust, or anger from the addressee. State v. McKenna, 415 A.2d 729, 1980 R.I. LEXIS 1683 (R.I. 1980).

“Personally abusive epithets inherently likely to provoke violent reaction” are words directed to the person of the addressee in a face-to-face encounter whose use creates a likelihood of imminent retaliation by the addressee. State v. McKenna, 415 A.2d 729, 1980 R.I. LEXIS 1683 (R.I. 1980).

To constitute “fighting words,” the prohibited language must have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed. State v. McKenna, 415 A.2d 729, 1980 R.I. LEXIS 1683 (R.I. 1980).

Any system of prior restraints of expression bears a heavy presumption against its constitutional validity. State v. Berberian, 427 A.2d 1298, 1981 R.I. LEXIS 1056 (R.I. 1981).

Fund-raising activities such as charitable raffles implicate a variety of speech interests that are within the protection of this amendment. Rhode Island Affiliate, American Civil Liberties Union, Inc. v. Rhode Island Lottery Comm'n, 553 F. Supp. 752, 1982 U.S. Dist. LEXIS 16453 (D.R.I. 1982).

Classes of speech which states may proscribe within first amendment guidelines are obscenity, fighting words, defamatory invasions of privacy and words likely to produce imminent lawless action (incitement). DeFilippo v. National Broadcasting Co., 446 A.2d 1036, 1982 R.I. LEXIS 905 (R.I. 1982).

Unless there is a serious threat of disruption to institutional efficiency, an individual cannot be deprived of constitutional protection because he voiced from within matters that were entirely appropriate for public discussion and of current public interest. Smith v. Harris, 560 F. Supp. 677, 1983 U.S. Dist. LEXIS 18104 (D.R.I. 1983).

Action to enjoin state trooper from enforcing rule of senate committee from transporting signs into committee meetings as a violation of this amendment was moot based on lack of any evidence that such a violation would occur. Duffy v. Quattrocchi, 576 F. Supp. 336, 1983 U.S. Dist. LEXIS 11134 (D.R.I. 1983).

The actions of the Heritage Commission in threatening to bar Irish ethnic individuals from participating in Heritage Day activities and prohibiting the distribution of pamphlets pertaining to the situation in Northern Ireland violated those individuals’ First and Fourteenth Amendment rights. Irish Subcommittee of Rhode Island Heritage Comm'n v. Rhode Island Heritage Comm'n, 646 F. Supp. 347, 1986 U.S. Dist. LEXIS 19710 (D.R.I. 1986).

With regard to the inquiry whether a speech is protected by the first amendment, we note that it is the role of the trial justice to determine the entire question as a matter of law. Thereafter, the jury’s role is to decide the remaining two elements of a claim: Whether the plaintiff has proven that his or her speech is a substantial or motivating factor in the defendant’s actions and whether the defendant has proven that it would have terminated the employee absent the exercise of allegedly protected speech. Adler v. Lincoln Hous. Auth., 544 A.2d 576, 1988 R.I. LEXIS 93 (R.I.), cert. denied, 488 U.S. 968, 109 S. Ct. 496, 102 L. Ed. 2d 532, 1988 U.S. LEXIS 5299 (1988).

Exclusion of a charitable organization from the state employee campaign committee does not violate the First Amendment’s protection of speech, since the committee is not a forum for speech within First Amendment concepts in any respect. Fund for Community Progress, Inc. v. Kane, 943 F.2d 137, 1991 U.S. App. LEXIS 20582 (1st Cir. 1991).

A temporary restraining order was granted enjoining the school district from denying a high school teacher access to high school property in order to document with a video camera numerous violations of the Rhode Island Occupational Health and Safety Code, since the teacher had demonstrated that her first amendment rights had likely been violated. Cirelli v. Town of Johnstown Sch. Dist., 888 F. Supp. 13, 1995 U.S. Dist. LEXIS 8395 (D.R.I. 1995).

The oath to support the constitution and laws of the state and the federal government, which attorneys must take upon admission to the state bar, does not violate any individual constitutional right that that attorney may have to express his contrary views. In re Roots, 762 A.2d 1161, 2000 R.I. LEXIS 202 (R.I. 2000).

Fire marshal’s investigator who also drew a fire department disability pension failed to show actionable defamation or appropriation of his likeness by a broadcaster whose investigative reporter questioned the propriety (legality of the practice was not in question) of what might have been perceived as double dipping, and summary judgment was properly entered in the broadcaster’s favor, since there was nothing defamatory about exercising the right of fair comment regarding true facts; rebroadcast of an excerpt from the original broadcast for promotional purposes was not an actionable invasion of privacy because the original broadcast had not been defamatory, and a voice over comment suggesting the investigator and others might be doing something wrong was insufficient to change that earlier characterization as not defamatory. Leddy v. Narragansett TV, L.P., 843 A.2d 481, 2004 R.I. LEXIS 54 (R.I. 2004).

— Broadcasting.

Chain broadcasting regulations promulgated by federal communications commission did not abridge freedom of speech. National Broadcasting Co. v. United States, 319 U.S. 190, 63 S. Ct. 997, 87 L. Ed. 1344, 1943 U.S. LEXIS 1119 (1943).

Late night talk show on which stuntman demonstrated hanging stunt did not fall within “incitement to immediate harmful conduct” exception to first amendment protection; therefore, wrongful death action against broadcaster and network on theory of negligence and reckless disregard for plaintiff’s welfare, brought by parents of 13-year-old who was found hanging several hours after watching the broadcast, was properly dismissed. DeFilippo v. National Broadcasting Co., 446 A.2d 1036, 1982 R.I. LEXIS 905 (R.I. 1982).

A television station has no constitutional privilege against disclosure of the unbroadcast portions of a videotaped nonconfidential interview. Outlet Communications v. State, 588 A.2d 1050, 1991 R.I. LEXIS 57 (R.I. 1991).

— Commercial Speech.

The government may ban forms of communication more likely to deceive the public than to inform it. Lovett & Linder, Ltd. v. Carter, 523 F. Supp. 903, 1981 U.S. Dist. LEXIS 14677 (D.R.I. 1981).

A ban of coin-operated newspaper vending machines on all public rights of way enacted by a city was subject to the first amendment’s proscriptions against state regulation of expressive activity. Providence Journal Co. v. Newport, 665 F. Supp. 107, 1987 U.S. Dist. LEXIS 6639 (D.R.I. 1987).

A hairdressing academy was improperly restricted in its exercise of commercial speech by a state board’s regulation, which suppressed legitimate rights to advertise without advancing the state’s compelling interest via narrowly tailored means. Berger v. Rhode Island Bd. of Governers for Higher Educ., 832 F. Supp. 515, 1993 U.S. Dist. LEXIS 14317 (D.R.I. 1993).

Rhode Island’s statutory prohibition against advertisements that provide the public with accurate information about retail prices of alcoholic beverages is unconstitutional; this holding rests on the conclusion that such an advertising ban is an abridgment of speech protected by the First Amendment and that it is not shielded from constitutional scrutiny by the Twenty-first Amendment. 44 Liquormart v. Rhode Island, 517 U.S. 484, 116 S. Ct. 1495, 134 L. Ed. 2d 711, 1996 U.S. LEXIS 3020 (1996).

Since the jingles that the plaintiff played by means of a loudspeaker in order to attract attention is valid speech, the ordinance that prohibited hawkers and peddlers from using loudspeakers and public address systems violated the plaintiff’s first amendment rights; the ordinance unreasonably differentiated between merchants and nonmerchants. Anabell's Ice Cream Corp. v. Town of Glocester, 925 F. Supp. 920, 1996 U.S. Dist. LEXIS 10485 (D.R.I. 1996).

Where there was ample reason to conclude that the plaintiff association’s proposed use of information to solicit members and to market its services would violate the Public Records Act, the plaintiff had standing to challenge the statute’s prohibition against using public records information to solicit for commercial purposes. Rhode Island Ass'n of Realtors, Inc. v. Whitehouse, 51 F. Supp. 2d 107, 1999 U.S. Dist. LEXIS 8897 (D.R.I.), aff'd, 199 F.3d 26, 1999 U.S. App. LEXIS 32451 (1st Cir. 1999).

Where the plaintiff association failed to establish the existence of any credible threat that it would be prosecuted for compiling data from tax assessors’ offices and making the data available to its members, it had no standing to challenge the statute on those grounds. Rhode Island Ass'n of Realtors, Inc. v. Whitehouse, 51 F. Supp. 2d 107, 1999 U.S. Dist. LEXIS 8897 (D.R.I.), aff'd, 199 F.3d 26, 1999 U.S. App. LEXIS 32451 (1st Cir. 1999).

Where proposed commercial speech concerned a lawful activity, and where there was no suggestion that the speech was misleading, the state failed to demonstrate that the regulation prohibiting such speech was narrowly tailored to directly advance a substantial government interest. Rhode Island Ass'n of Realtors, Inc. v. Whitehouse, 51 F. Supp. 2d 107, 1999 U.S. Dist. LEXIS 8897 (D.R.I.), aff'd, 199 F.3d 26, 1999 U.S. App. LEXIS 32451 (1st Cir. 1999).

R.I. Gen. Laws § 11-22-2(3), on its face, operates as an unconstitutional prior restraint on speech because it grants a local official unbridled discretion to approve or deny sign postings on even private property that overlaps with a public highway right of way. As currently constructed, § 11-22-2(3) is not sufficiently narrow and violates the First Amendment, and concomitantly, R.I. Const. art. I, § 21 . Driver v. Town of Richmond, 570 F. Supp. 2d 269, 2008 U.S. Dist. LEXIS 58485 (D.R.I. 2008).

Rhode Island Outdoor Advertising Act (RIOAA), R.I. Gen. Laws § 24-10.1-1 et seq., violated the First Amendment because its distinction between on-premise signs, as defined by R.I. Gen. Laws § 24-10.1-3(3) , and off-premise signs was an impermissible content-based restriction on speech. Vono v. Lewis, 594 F. Supp. 2d 189, 2009 U.S. Dist. LEXIS 6948 (D.R.I. 2009).

— — Alcoholic Beverages.

The Twenty-first Amendment does not qualify the constitutional prohibition against laws abridging the freedom of speech embodied in the First Amendment as it relates to advertising of alcoholic beverages. 44 Liquormart v. Rhode Island, 517 U.S. 484, 116 S. Ct. 1495, 134 L. Ed. 2d 711, 1996 U.S. LEXIS 3020 (1996).

The denial of the transfer of a liquor license to the plaintiffs was a violation of plaintiffs’ First Amendment rights where the city board of licenses treated an adult entertainment license and the liquor license transfer as one application and denied transfer of the liquor license to frustrate the plaintiffs’ attempt at opening an adult entertainment establishment. Saints & Sinners v. City of Providence, 172 F. Supp. 2d 348, 2001 U.S. Dist. LEXIS 18664 (D.R.I. 2001).

— Defamation.

The present state of the law imposes two major bodies of restrictions in respect to allowing recovery for defamatory publications: First, in regard to public officials and public figures, no recovery may be permitted unless the plaintiff proves by clear and convincing evidence that the publication was made with knowledge that the defamatory statement was false or with reckless disregard of whether it was false or not; and second, in regard to private citizens, the states may apply their own laws in respect to the publishing of defamatory material, except that liability may not be established without fault and in the event that exemplary damages are to be awarded, then the “actual malice” element must be shown by clear and convincing evidence. DeCarvalho v. DaSilva, 414 A.2d 806, 1980 R.I. LEXIS 1644 (R.I. 1980).

Member of Rhode Island Senate and the majority leader of that body was a public official and a public figure for purposes of defamation action. Hawkins v. Oden, 459 A.2d 481, 1983 R.I. LEXIS 862 (R.I. 1983).

Defendant/radio talk show host’s statements during program which characterized plaintiff/public figure’s actions as “reaching into the public till with both hands” and “stealing public money” were not actionable where the facts upon which the offending statements were based had been fully disclosed and had resulted in much media attention and where defendant had also stated that plaintiff had done nothing illegal and had broken no law. Hawkins v. Oden, 459 A.2d 481, 1983 R.I. LEXIS 862 (R.I. 1983).

The written statements of an attorney made to a psychologist’s supervisors concerning a psychological diagnostic appraisal made by the psychologist of a 12-year-old child who was the subject of a custody dispute constituted privileged opinions and not actionable defamation where the child was a client of the defendant and the attorney’s opinions, even if hyperbolic, were merely evaluations of the plaintiff’s report. Froess v. Bulman, 610 F. Supp. 332, 1984 U.S. Dist. LEXIS 21867 (D.R.I. 1984), aff'd, 767 F.2d 905, 1985 U.S. App. LEXIS 21661 (1st Cir. 1985).

If the challenged statement is one of opinion rather than fact, then under the first amendment it generally cannot give rise to a defamation claim. Fudge v. Penthouse International, Ltd., 840 F.2d 1012, 1988 U.S. App. LEXIS 2432 (1st Cir.), cert. denied, 488 U.S. 821, 109 S. Ct. 65, 102 L. Ed. 2d 42, 1988 U.S. LEXIS 3861 (1988).

Magazine article characterization of schoolgirls as “amazons” was not an assertion of fact but instead the statement of an opinion, where the article’s description of girls attacking boys suggested that “amazon” was used in the sense of “female warrior” and even then only in an exaggerated, satirical manner. Fudge v. Penthouse International, Ltd., 840 F.2d 1012, 1988 U.S. App. LEXIS 2432 (1st Cir.), cert. denied, 488 U.S. 821, 109 S. Ct. 65, 102 L. Ed. 2d 42, 1988 U.S. LEXIS 3861 (1988).

A manufacturer of an ozone generating air purification device was a limited purpose public figure and therefore could not prevail on either its defamation or product disparagement claims without proving, by clear and convincing evidence, that the magazine article criticizing the safety and effectiveness of the device contained defamatory falsehoods and was published with actual malice. Quantum Elecs. Corp. v. Consumers Union, 881 F. Supp. 753, 1995 U.S. Dist. LEXIS 5051 (D.R.I. 1995).

— Disruptive Behavior.

The state’s revocation of a bail-bondsman’s license for disruptive behavior in a courthouse in which the bondsman argued with an assistant court clerk over the change of bail to another bondsman did not constitute an unconstitutional denial of free speech. A courthouse is a “limited public forum” for the presentation of testimony and for the argument of advocates in a controlled judicial setting, and is not a forum in which the disruption of clerical functions may take place at the option of members of the public. In re Cross, 617 A.2d 97, 1992 R.I. LEXIS 206 (R.I. 1992).

— Entertainment.

Town ordinance regulating entertainment establishments that did not specify standards but left the issuance and revocation of licenses to the discretion of the town council did not meet constitutional requirements. Atlantic Beach Casino, Inc. v. Morenzoni, 749 F. Supp. 38, 1990 U.S. Dist. LEXIS 14258 (D.R.I. 1990).

A moratorium on the granting of licenses was facially invalid where any ruling on a license application, if final, demonstrated that the board of licenses had unbridled discretion to reject any application for any reason, and if merely a delay of the applicant’s right to be reheard until such time as the moratorium ended, was a failure to place limits on the time to make a decision. D'Ambra v. City of Providence, 21 F. Supp. 2d 106, 1998 U.S. Dist. LEXIS 15560 (D.R.I. 1998).

A moratorium on the granting of new licenses was not sufficiently narrowly tailored where existing license-holders were not affected by it, and where the moratorium did not differentiate between license applicants to deny only those who would cause the secondary evils that the city sought to prevent. D'Ambra v. City of Providence, 21 F. Supp. 2d 106, 1998 U.S. Dist. LEXIS 15560 (D.R.I. 1998).

City ordinances limiting the locations of adult entertainment businesses did not violate the First Amendment since the ordinances were content-neutral, were designed to serve a substantial governmental interest, and did not unreasonably limit alternative avenues of communication. DiRaimo v. City of Providence, 714 A.2d 554, 1998 R.I. LEXIS 170 (R.I. 1998).

City ordinances limiting the locations of adult entertainment businesses were not overbroad in application since they permitted incidental and occasional nudity in the live performances in established legitimate theaters as accessory uses incidental to the permitted theater use in the zone in which they were located. DiRaimo v. City of Providence, 714 A.2d 554, 1998 R.I. LEXIS 170 (R.I. 1998).

The denial of an adult entertainment license to the plaintiffs was a violation of plaintiffs’ First Amendment rights since it was abundantly clear that the city board of licenses did not rely on a legitimate, content neutral zoning reason to deny the adult entertainment license. Saints & Sinners v. City of Providence, 172 F. Supp. 2d 348, 2001 U.S. Dist. LEXIS 18664 (D.R.I. 2001).

In analyzing whether the city’s “no singing” and “no amplification” restrictions in a restaurant’s entertainment license were reasonable time, place, and manner restrictions and narrowly tailored to further the city’s interest, the district court erred by not determining whether the means chosen were “broader than necessary to achieve the government’s interest”. Casey v. City of Newport, 308 F.3d 106, 2002 U.S. App. LEXIS 21538 (1st Cir. 2002).

— Judicial Proceedings.

An attorney may not seek refuge within his own first amendment right of free speech to fill a courtroom with a litany of speculative accusations and insults which raise doubts as to a judge’s impartiality. United States v. Cooper, 872 F.2d 1, 1989 U.S. App. LEXIS 4579 (1st Cir. 1989).

— Labor Matters.

Freedom of discussion under the Constitution is infringed by common law policy of state forbidding resort to peaceful persuasion through picketing even where there is no immediate employer-employee dispute but only an attempted organization of employees. AFL v. Swing, 312 U.S. 321, 61 S. Ct. 568, 85 L. Ed. 855, 1941 U.S. LEXIS 1218 (1941).

The right to make known the facts of a labor dispute is protected by the constitutional right of free speech. Taxi-Cab Drivers Local Union v. Yellow Cab Operating Co., 123 F.2d 262, 1941 U.S. App. LEXIS 2684 (10th Cir. 1941).

Noncommunist affidavit requirement of Labor Management Relations Act, as applied to members of communist party and affiliated organizations and to persons who believe in overthrow of government by force, does not violate this amendment. American Communications Ass'n v. Douds, 339 U.S. 382, 70 S. Ct. 674, 94 L. Ed. 925, 1950 U.S. LEXIS 2530 (1950).

Where defendants were restrained from striking, finding them in contempt for reading to their membership a statement containing a pledge of individuals to absent themselves from work did not violate the freedom of speech protected by this amendment. School Comm. v. Pawtucket Teachers Alliance, 101 R.I. 243 , 221 A.2d 806, 1966 R.I. LEXIS 379 (1966).

In a case involving the free speech rights of public employees, the court rejected a theory extending protection to expressions by such employees in public forums about matters of public interest, but denying protection to such expressions made in private to co-workers or superiors; for the right of free speech is designed to protect not only public debate, but intra-agency debates over policies and ideas as well. Pilkington v. Bevilacqua, 439 F. Supp. 465, 1977 U.S. Dist. LEXIS 13698 (D.R.I. 1977), aff'd, 590 F.2d 386, 1979 U.S. App. LEXIS 17586 (1st Cir. 1979).

Where the record contained insufficient evidence from which a juror could determine that the state’s actions, either in not promoting plaintiff or in allegedly removing all of his job duties, were in retaliation for, or substantially motivated by, plaintiff ’s prior age discrimination suit against the state, plaintiff could not support his claims that his First Amendment rights were violated. Corrigan v. Rhode Island, Dep't of Business Regulation, 820 F. Supp. 647, 1993 U.S. Dist. LEXIS 4932 (D.R.I. 1993).

— Lobbyists.

Insofar as the speaker of the House in Rhode Island and the head doorkeeper enforced House Rule 45, which controls admission to the floor, against private lobbyists but spared governmental lobbyists from exclusion, those individuals acted within the legislative sphere and are protected from judicial interference by the doctrine of absolute legislative immunity. National Ass'n of Social Workers v. Harwood, 69 F.3d 622, 1995 U.S. App. LEXIS 31828 (1st Cir. 1995).

— Music.

Music, as a form of expression and communication, is protected under the first amendment. Atlantic Beach Casino, Inc. v. Morenzoni, 749 F. Supp. 38, 1990 U.S. Dist. LEXIS 14258 (D.R.I. 1990).

— Noise Control.

The state may not impose criminal sanctions upon speech under the rubric of prevention of loud and unreasonable noise. State v. Tavarozzi, 446 A.2d 1048, 1982 R.I. LEXIS 908 (R.I. 1982).

Section 11-45-1(b) , relating to disorderly conduct for making loud and unreasonable noises, is inapplicable to speech and is neither vague nor overbroad when applied to conduct other than speech. State v. Tavarozzi, 446 A.2d 1048, 1982 R.I. LEXIS 908 (R.I. 1982).

The decibel provision of a city noise abatement ordinance, which imposed limits on sound for various parts of the city, was not unconstitutionally vague or overbroad. Dupres v. City of Newport, 978 F. Supp. 429, 1997 U.S. Dist. LEXIS 15538 (D.R.I. 1997).

Provisions of a city noise abatement ordinance that proscribed unreasonably loud, disturbing, or unnecessary noise and that invited law enforcement and others to make a determination as to whether the ordinance was violated were unconstitutionally vague and overbroad. Dupres v. City of Newport, 978 F. Supp. 429, 1997 U.S. Dist. LEXIS 15538 (D.R.I. 1997).

Providence, R.I., Code of Ordinances § 16-93, prohibiting loud noise in residential areas, was not void for vagueness because (1) ordinary people could understand the prohibited level of volume, under the ordinance, and (2) the ordinance did not encourage arbitrary or discriminatory enforcement, as the ordinance plainly stated where noise was prohibited, had a reasonableness standard, and provided guidance to law enforcement officers in the ordinance’s prima facie evidence provision. State ex rel. City of Providence v. Auger, 44 A.3d 1218, 2012 R.I. LEXIS 72 (R.I. 2012).

Providence, R.I., Code of Ordinances § 16-93, prohibiting loud noise in residential areas, was not overbroad because (1) the ordinance was narrowly tailored to serve the substantial and content-neutral governmental interest of maintaining citizens’ health and welfare in residential areas, and (2) the ordinance left open alternative communication channels, so impermissible applications were not substantial related to the ordinance’s legitimate sweep. State ex rel. City of Providence v. Auger, 44 A.3d 1218, 2012 R.I. LEXIS 72 (R.I. 2012).

— Nude Dancing.

Any marginal First Amendment interest the bar-owning plaintiffs may have had in topless barroom dancing was outweighed by the state’s Twenty-First Amendment interest in regulating the circumstances under which liquor may be served. Thus, a city ordinance prohibiting nude dancing in a bar served a legitimate state purpose and was rationally related to the achievement of the purpose. Wreck Bar v. Comolli, 857 F. Supp. 182, 1994 U.S. Dist. LEXIS 9718 (D.R.I. 1994).

An ordinance which prohibited the display of nudity only in places that were licensed to serve liquor for consumption on the premises, and did not prohibit all displays of nudity or nude dancing in the town, did not constitute a content-based regulation but rather was a content-neutral regulation that merely restricted the time, manner, and place where such displays could occur in order to further the purpose of protecting societal order and morality. El Marocco Club, Inc. v. Richardson, 746 A.2d 1228, 2000 R.I. LEXIS 42 (R.I. 2000).

An ordinance was upheld where any incidental restriction on free-speech interests caused by its enforcement was outweighed by the town’s legitimate interest in protecting the safety and welfare of its citizens. El Marocco Club, Inc. v. Richardson, 746 A.2d 1228, 2000 R.I. LEXIS 42 (R.I. 2000).

— Obscenity.

In finding that § 11-31-1 reached conduct that may be protected by the constitution because it is not legally obscene, the entire act was declared unconstitutional on the ground that it improperly defined what constitutes “an obscene work” in defining the broader concept of “patently offensive sexual conduct,” rather than the narrower term “sexual conduct,” and thus established a conclusive presumption and predetermined “patently offensive sexual conduct” rather than leaving that determination to the jury as required by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973). D & J Enters. v. Michaelson, 121 R.I. 537 , 401 A.2d 440, 1979 R.I. LEXIS 1868 (1979).

Obscenity does not come within the protection of the first amendment, and there is no constitutional right, fundamental or otherwise, to sell or distribute obscene materials. State v. Lesieure, 121 R.I. 859 , 404 A.2d 457, 1979 R.I. LEXIS 2192 (1979).

In dealing with obscenity, a state cannot adopt procedures without regard to the possible consequences for constitutionally protected speech. State v. Berberian, 427 A.2d 1298, 1981 R.I. LEXIS 1056 (R.I. 1981).

A municipal ordinance imposing a cabaret license fee upon establishments providing for “exotic” dancers lacked requisite content neutral justification, and was a facial violation of this amendment. AAK, Inc. v. City of Woonsocket, 830 F. Supp. 99, 1993 U.S. Dist. LEXIS 11322 (D.R.I. 1993).

A city ordinance restricting the sale or rental of adult videos on Sundays or holidays is an impermissible abrogation of the freedom of speech protected by the first amendment. Faraone v. City of E. Providence, 935 F. Supp. 82, 1996 U.S. Dist. LEXIS 11416 (D.R.I. 1996).

— Political Contributions.

Limitations on the amounts that may be contributed to political campaigns such as § 17-25-10.1 have only a “marginal” impact on a contributor’s freedom of expression because the expression involved in contributing does not increase perceptibly with the size of the contribution. However, there are circumstances under which contribution limits may have a direct and substantial impact on a contributor’s freedom of political association. Driver v. Distefano, 914 F. Supp. 797, 1996 U.S. Dist. LEXIS 1469 (D.R.I. 1996).

— Prisoners.

There is no constitutionally-assured right of prison inmates in a high security institution to communicate with each other in a virtually unrestricted manner, such as by passing a letter, and wig-wagging hand signals to one another through a glass window. Dooley v. Quick, 598 F. Supp. 607, 1984 U.S. Dist. LEXIS 21915 (D.R.I. 1984), aff'd, 787 F.2d 579, 1986 U.S. App. LEXIS 24431 (1st Cir. 1986).

The failure to notify a prisoner or the publisher of the confiscation of a periodical written for the gay community and mailed to the prisoner, which confiscation was made without reference to prison guidelines, clearly violated constitutionally mandated procedural guidelines. Dooley v. Quick, 598 F. Supp. 607, 1984 U.S. Dist. LEXIS 21915 (D.R.I. 1984), aff'd, 787 F.2d 579, 1986 U.S. App. LEXIS 24431 (1st Cir. 1986).

There was no constitutional obligation on the part of a state penitentiary to promulgate regulations concerning the free exercise of first amendment rights. Nicholson v. Moran, 835 F. Supp. 692, 1993 U.S. Dist. LEXIS 18997 (D.R.I. 1993).

Neither the warden’s policy of charging prisoners for providing “false information,” nor the penitentiary’s policy of punishing prisoners found guilty of this charge, facially violated the first amendment, although fourteenth amendment due process rights were violated by the board’s imposition of punishment without substantial evidence on the record. Nicholson v. Moran, 835 F. Supp. 692, 1993 U.S. Dist. LEXIS 18997 (D.R.I. 1993).

The defendant prison officials were entitled to summary judgment in an action by a prisoner who claimed a violation of his First Amendment rights where the prisoner alleged that he was transferred to a prison in Virginia, rather than to one in New Jersey, in retaliation for filing a civil rights complaint against prison officials, but the evidence showed that the prisoner was not transferred to New Jersey only because prison officials in New Jersey refused to accept him and that he was transferred to Virginia pursuant to a settlement agreement reached in another case initiated by the prisoner. Figueroa v. DiNitto, 2002 U.S. Dist. LEXIS 7039 (D.R.I. Mar. 14, 2002), aff'd, 52 Fed. Appx. 522, 2002 U.S. App. LEXIS 25284 (1st Cir. 2002).

— Profanity.

Profanity can only be constitutionally punished if the penal statute is restricted to the proscription of fighting words. State v. Authelet, 120 R.I. 42 , 385 A.2d 642, 1978 R.I. LEXIS 637 (1978).

Although § 11-11-5 , concerning profanity is not by its terms limited to a situation in which the use of profanity rises to the level of fighting words, and is capable of an overbroad interpretation encompassing protected speech, the court construed the section to proscribe only fighting words, to preserve its constitutional validity. State v. Authelet, 120 R.I. 42 , 385 A.2d 642, 1978 R.I. LEXIS 637 (1978).

Although speech may be noisy and profane, it may nevertheless be protected save for the rather narrow “fighting words” exception. State v. Tavarozzi, 446 A.2d 1048, 1982 R.I. LEXIS 908 (R.I. 1982).

— Protests.

Security zone restriction around a defense contractor’s nuclear plant constitutes a constitutionally impermissible restriction on speech where the zone limits protesters’ ability to disseminate their message by restricting access to within 500 yards of the shore and where there is no evidence indicating that the protesters would attempt destruction or that a 500 yard zone is necessary to maintain security. Protesters are entitled to a temporary restraining order allowing them to anchor their sail boat at a point no less than 100 yards from shore. Kellam v. Burnley, 673 F. Supp. 71, 1987 U.S. Dist. LEXIS 10623 (D.R.I. 1987).

— Public Employees.

When a government employee directs speech towards a government employer, the employee’s first amendment rights must be balanced against the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees. Smith v. Harris, 560 F. Supp. 677, 1983 U.S. Dist. LEXIS 18104 (D.R.I. 1983).

When speech is public, the content of a teacher’s statements must be assessed to determine whether they impede the proper performance of classroom duties or interfere with the regular operation of the schools. Smith v. Harris, 560 F. Supp. 677, 1983 U.S. Dist. LEXIS 18104 (D.R.I. 1983).

Plaintiff prospective teacher failed to show that her constitutionally protected conduct, including her participation in partisan political activities and in community and school committee affairs, was a “motivating” or “substantial” factor in a school district’s failure to hire her and thus failed to establish a cognizable claim. Smith v. Harris, 560 F. Supp. 677, 1983 U.S. Dist. LEXIS 18104 (D.R.I. 1983).

While the simple fact of a teacher’s termination eight months after a public controversy over a reading program in which the teacher publicly criticized a reduction in the program was not enough to show a violation of her constitutional right of free speech, the jury could have concluded that the superintendent and principal of the school retaliated against the teacher for her exercise of first amendment rights by ordering a termination they were without power to order, unjustifiably threatening another firing shortly after the school district reinstated the teacher, and then depriving her of a job to which she was entitled, and that such outrageous conduct supported a punitive damage award. Fishman v. Clancy, 763 F.2d 485, 1985 U.S. App. LEXIS 19803 (1st Cir. 1985).

The employment of a public employee was not terminated in retaliation for the exercise of his right to free speech, i.e., furnishing a city councilman with information which documented the councilman’s criticisms of the city administration, but as a part of the ongoing reorganization of city operations so as to eliminate unnecessary positions, which was constitutionally permitted. See Joslyn v. Kinch, 613 F. Supp. 1168, 1985 U.S. Dist. LEXIS 17540 (D.R.I. 1985).

The elimination of positions occupied by supporters of a former mayor did not violate their first amendment rights, where the elimination was made during the course of an extensive personnel reorganization which would have occurred even in the absence of their political affiliations. Duffy v. Sarault, 702 F. Supp. 387, 1988 U.S. Dist. LEXIS 14852 (D.R.I. 1988), aff'd, 892 F.2d 139, 1989 U.S. App. LEXIS 19403 (1st Cir. 1989).

A public employee does not lose the right to free speech provided in the first amendment by virtue of electing to exercise such speech privately rather than publicly. Adler v. Lincoln Hous. Auth., 544 A.2d 576, 1988 R.I. LEXIS 93 (R.I.), cert. denied, 488 U.S. 968, 109 S. Ct. 496, 102 L. Ed. 2d 532, 1988 U.S. LEXIS 5299 (1988).

A public employee’s allegations concerning the misuse of public funds and equipment by her superior address a matter of public concern and are entitled to first amendment protection. Adler v. Lincoln Hous. Auth., 544 A.2d 576, 1988 R.I. LEXIS 93 (R.I.), cert. denied, 488 U.S. 968, 109 S. Ct. 496, 102 L. Ed. 2d 532, 1988 U.S. LEXIS 5299 (1988).

The first amendment protection of expression on public issues encompasses citizens’ complaints that public officials, be they elected, appointed, or employed, have breached contemporary canons of ethics in government. Providence Journal Co. v. Newton, 723 F. Supp. 846, 1989 U.S. Dist. LEXIS 12854 (D.R.I. 1989).

The confidentiality provisions of the Rhode Island Code of Ethics impose unconstitutional restraints on the free speech rights of a citizen who files an ethics complaint against a mayor and members of a city council; public discussion of the existence and substance of an ethics complaint formally filed under oath against a public official is speech protected by the first amendment. Providence Journal Co. v. Newton, 723 F. Supp. 846, 1989 U.S. Dist. LEXIS 12854 (D.R.I. 1989).

The city’s refusal to reappoint plaintiff or to continue her employment as a police matron for political reasons after she had failed to support the former mayor in an election for the office of city council constituted a violation of her first amendment rights. One cannot be deprived of employment by reason of discharge, failure to recall, promote or failure to hire for purely political reasons. Robinson v. East Providence, 617 A.2d 1375, 1993 R.I. LEXIS 25 (R.I.), cert. denied, 508 U.S. 951, 113 S. Ct. 2444, 124 L. Ed. 2d 661, 1993 U.S. LEXIS 3769 (1993).

A government employee faced with rules that, if enforced, would violate his first amendment rights may sue before volunteering his head on the chopping block. Providence Firefighters Local 799 v. City of Providence, 26 F. Supp. 2d 350, 1998 U.S. Dist. LEXIS 17185 (D.R.I. 1998).

Fire department rules requiring prior permission for public speech posed imminent injury in that the fire chief’s broad discretion to censor constitutionally-protected speech threatened the plaintiffs’ rights even if they had never asked the chief for permission, and in that the need for plaintiffs to apply through channels before any speech created an inherent delay, since even a temporary restraint on expression may constitute irreparable injury. Providence Firefighters Local 799 v. City of Providence, 26 F. Supp. 2d 350, 1998 U.S. Dist. LEXIS 17185 (D.R.I. 1998).

Restrictions on fire department employee speech curbed a substantial interest held both by plaintiffs and the public where the matters upon which the plaintiffs’ wished to speak to citizens included fire department policies, tax money and fire safety in public buildings and schools. Providence Firefighters Local 799 v. City of Providence, 26 F. Supp. 2d 350, 1998 U.S. Dist. LEXIS 17185 (D.R.I. 1998).

The suppression of plaintiffs’ free speech rights, and the harm resulting to the public from fire department rules requiring prior permission to speak to citizens on issues of public concern, far outweighed any speculative harm to the government through leakage to the media about investigations. Providence Firefighters Local 799 v. City of Providence, 26 F. Supp. 2d 350, 1998 U.S. Dist. LEXIS 17185 (D.R.I. 1998).

Where a city employee, who had no personal stake in the matter, called elected public representatives to discuss a proposed hiring that touched both on the city’s hiring procedures and state licensing requirements, his speech was constitutionally protected. Faerber v. City of Newport, 51 F. Supp. 2d 115, 1999 U.S. Dist. LEXIS 8899 (D.R.I. 1999).

— — Balancing by Court.

If a discharged public employee’s speech cannot be characterized as a matter of public concern, the reasons for the employee’s discharge need not be scrutinized, however, on the other hand, the employee’s speech meets the threshold requirement, a court must then balance the employee’s interest in free expression against the government’s interest in curtailing the expression for the effective and efficient fulfillment of its responsibilities to the public. Adler v. Lincoln Hous. Auth., 544 A.2d 576, 1988 R.I. LEXIS 93 (R.I.), cert. denied, 488 U.S. 968, 109 S. Ct. 496, 102 L. Ed. 2d 532, 1988 U.S. LEXIS 5299 (1988).

— — Employee’s Burden of Proof.

A public employee claiming unconstitutional retaliation must first demonstrate that the speech is protected by the first amendment. Next, the plaintiff must show that the complained of conduct is a substantial or motivating factor in the defendant’s decision to dismiss him or her. Thereafter, the employer has the burden of proving by a preponderance of the evidence that it would have reached the decision to terminate even in the absence of the plaintiff ’s exercise of allegedly protected speech. Adler v. Lincoln Hous. Auth., 544 A.2d 576, 1988 R.I. LEXIS 93 (R.I.), cert. denied, 488 U.S. 968, 109 S. Ct. 496, 102 L. Ed. 2d 532, 1988 U.S. LEXIS 5299 (1988).

— Subversion.

Deportation of alien on the ground of membership in communist party does not violate this amendment, since freedom of speech does not carry with it the right to incite overthrow of the existing government by force. Harisiades v. Shaughnessy, 342 U.S. 580, 72 S. Ct. 512, 96 L. Ed. 586, 1952 U.S. LEXIS 2345 (1952).

— Suicide.

The uncontrollable impulse rule, which is generally applied in negligence cases involving suicide in which the press is not involved, should also be the rule in cases in which the press is involved. Any rule expanding liability in cases involving the press would unfairly create a dual standard of care that would actually impinge on fundamental First Amendment rights of the press. Cliff v. Narragansett TV, L.P., 688 A.2d 805, 1996 R.I. LEXIS 297 (R.I. 1996).

The uncontrollable impulse rule will hereinafter be applied in Rhode Island to all negligence actions seeking recovery for suicide regardless of whom the defendant might be or whether the press is involved. Cliff v. Narragansett TV, L.P., 688 A.2d 805, 1996 R.I. LEXIS 297 (R.I. 1996).

Petitioning Government.

The requirement of former § 9-12-12 that defendant in an action for posession of tenements, appealing from decision, post bond to secure the payment of rents due, or which may become due, pending appeal does not bar indigent defendants access to the courts in violation of this amendment or the due process clause of U.S. Const. Amend. 14. Jones v. Aciz, 109 R.I. 612 , 289 A.2d 44, 1972 R.I. LEXIS 1225 (1972).

Where state official told welfare recipient that if she did not dismiss proceedings and accept offered settlement the case would drag on and the funds would be diverted to other uses, the welfare recipient’s right to redress of grievances was threatened. Roselli v. Noel, 414 F. Supp. 417, 1976 U.S. Dist. LEXIS 14932 (D.R.I. 1976).

In a suit by the owners of a city landfill against a city resident alleging tortious interference with contractual relations and defamation, the defendant’s written statements, submitted to an executive body as well as to legislators, were made in connection with an issue under consideration by the Department of Environmental Management and in connection with an issue of public concern, namely potential environmental contamination resulting from the plaintiff’s activities, and therefore clearly constituted an exercise of her right of petition and free speech within the meaning of § 9-33-2(e) (conditional immunity for right of petition). Hometown Props. v. Fleming, 680 A.2d 56, 1996 R.I. LEXIS 188 (R.I. 1996).

When a police chief and lieutenant sued by an officer filed a defamation counterclaim against the officer based on the contents of the officer’s notice of claim presented to a town council, pursuant to R.I. Gen. Laws § 45-15-5 , it was error to dismiss the counterclaim on the grounds that the notice was absolutely privileged because the petition clause of the First Amendment did not provide absolute immunity to baseless claims and allegations. Ims v. Town of Portsmouth, 32 A.3d 914, 2011 R.I. LEXIS 146 (R.I. 2011).

Police Searches.

A suspect’s first amendment rights were not compromised merely because an experienced police officer utilized known law enforcement criteria to formulate an articulable suspicion, since police officers in the field are not required to weigh free speech or political correctness considerations in reaching either probable cause conclusions or formulating an articulable suspicion that a suspect may be armed and dangerous. State v. Milette, 727 A.2d 1236, 1999 R.I. LEXIS 95 (R.I. 1999), cert. denied, 528 U.S. 1157, 120 S. Ct. 1164, 145 L. Ed. 2d 1075, 2000 U.S. LEXIS 1066 (2000).

Political Favoritism.

Political favoritism need not be proved by direct evidence. Anthony v. Sundlun, 952 F.2d 603, 1991 U.S. App. LEXIS 30122 (1st Cir. 1991).

Private Entities.

A union member failed to establish that the union defendants conspired with or jointly participated with a government actor in depriving the plaintiff of his rights guaranteed by the First Amendment. Socha v. National Ass'n of Letter Carriers, Branch No. 57, 883 F. Supp. 790, 1995 U.S. Dist. LEXIS 5983 (D.R.I. 1995).

Public Meetings.

Because the Open Meetings Law is premised on the first amendment values of an informed public and the accountability of public institutions, certain constitutional principles should apply to the regulation of the right to tape record open, public meetings. If officials were to grant or deny permission to record on the basis of content, they would undermine the nations’s commitment to the equality of status in the field of ideas. Also, under the equal protection clause, as well as under the First Amendment, unbridled discretion cannot be ceded to government officials to decide whether leave to record public meetings will be granted. Belcher v. Mansi, 569 F. Supp. 379, 1983 U.S. Dist. LEXIS 15829 (D.R.I. 1983).

Public/Nonpublic Forums.

A forum provided others by the state for expressive activities may be general (public), or limited public (nonpublic). If public, exclusions are allowed only for compelling state reasons. If properly characterized as limited public, exclusions are permitted so long as reasonable. Fund for Community Progress, Inc. v. Kane, 943 F.2d 137, 1991 U.S. App. LEXIS 20582 (1st Cir. 1991).

Religious and Political Freedom in General.

The Fourteenth Amendment makes the First Amendment applicable to the states. Murdock v. Pennsylvania, 319 U.S. 105, 63 S. Ct. 870, 87 L. Ed. 1292, 1943 U.S. LEXIS 711 (1943), limited, Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 110 S. Ct. 688, 107 L. Ed. 2d 796, 1990 U.S. LEXIS 485 (1990).

Freedom of speech and of press, of assembly and of worship are susceptible of restriction only to prevent grave and immediate danger to the interests which the state may lawfully protect. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628, 1943 U.S. LEXIS 490 (1943).

City ordinance construed to prohibit a minister of Jehovah’s Witnesses from addressing an orderly religious meeting in a park, though the religious services of other sects were not prohibited, violated the First and Fourteenth Amendments. Fowler v. Rhode Island, 345 U.S. 67, 73 S. Ct. 526, 97 L. Ed. 828, 1953 U.S. LEXIS 2330 (1953).

Defendants could be enjoined from soliciting signatures for nominating petitions at entrances and exits to the main building of a private shopping mall by owners who maintained a nondiscriminatory policy against solicitations. Homart Dev. Co. v. Fein, 110 R.I. 372 , 293 A.2d 493, 1972 R.I. LEXIS 926 (1972).

State disbursement to political parties of funds collected under the political contribution income tax credit act, § 44-30-2 , constitutes state action, so that challenges to that act’s constitutionality under this amendment require critical scrutiny. McKenna v. Reilly, 419 F. Supp. 1179, 1976 U.S. Dist. LEXIS 13274 (D.R.I. 1976).

In allocating funds among candidates for party nomination, political parties, because of their state subsidization under § 44-30-2 , are under the mandate of this amendment. McKenna v. Reilly, 419 F. Supp. 1179, 1976 U.S. Dist. LEXIS 13274 (D.R.I. 1976).

Where the constitutionality of a restriction on first amendment rights is at issue, the governmental unit has the burden of showing that it has a compelling interest warranting the infringement of these rights and that the restriction is the least drastic means of achieving the governmental purpose. Cummings v. Godin, 119 R.I. 325 , 377 A.2d 1071, 1977 R.I. LEXIS 1916 (1977).

Officials who allegedly fired an employee for exercising his first amendment rights were entitled to assert in their defense an erroneous report of the employee’s bad performance only if they proved that the false charges caused them to reach the firing decision when they were received at a meeting called to find a reason to fire the employee. Pilkington v. Bevilacqua, 590 F.2d 386, 1979 U.S. App. LEXIS 17586 (1st Cir. 1979).

A finding that plaintiffs were placed on administrative leave for the exercise of their first amendment rights is made in two phases: First, plaintiffs bear the burden of showing that their conduct was constitutionally protected and that this conduct was a substantial factor in the contested decision; and second, the court is required to consider whether the defendants have shown, by a preponderance of the evidence, that the decision to place plaintiffs on administrative leave would have been made even in the absence of the protected conduct. Brule v. Southworth, 611 F.2d 406, 1979 U.S. App. LEXIS 9255 (1st Cir. 1979).

Legislation which undertakes to regulate any form of expression and possibly impinge on first amendment freedoms demands a cautious approach, and may require strict construction. D & J Enters. v. Michaelson, 121 R.I. 537 , 401 A.2d 440, 1979 R.I. LEXIS 1868 (1979).

It is well-settled that first amendment rights are limitations upon state action only, not upon private conduct. Amoco Oil Co. v. Local 99, IBEW, 536 F. Supp. 1203, 1982 U.S. Dist. LEXIS 18359 (D.R.I. 1982).

Any regulation of first amendment rights must be precisely and narrowly drawn to vindicate the sovereign’s interest. Belcher v. Mansi, 569 F. Supp. 379, 1983 U.S. Dist. LEXIS 15829 (D.R.I. 1983).

Section 11-19-1 , by granting the right to conduct a raffle and/or “20-week club” to political parties whose gubernational candidates poll at least five percent of the vote (i.e. in practice and effect, limiting the grant to the Republican and Democratic parties), benefits those with popular views, and seriously impugns the first amendment rights of minority organizations without necessarily serving the avowed purpose of the regulation — the control of gambling — in a rational way and, thus, does not pass constitutional muster. Rhode Island Chapter of Nat'l Women's Political Caucus, Inc. v. Rhode Island Lottery Comm'n, 609 F. Supp. 1403, 1985 U.S. Dist. LEXIS 19637 (D.R.I. 1985).

There is no first amendment right to conduct or play bingo, regardless of whether the game is completely prohibited or statutorily permitted, subject to regulation. Allendale Leasing, Inc. v. Stone, 614 F. Supp. 1440, 1985 U.S. Dist. LEXIS 17165 (D.R.I. 1985), aff'd, 788 F.2d 830, 1986 U.S. App. LEXIS 24760 (1st Cir. 1986).

The following sections of the Rhode Island Campaign Contributions and Expenditures Reporting Act, § 17-25-1 et seq., were deemed to have the following constitutional First Amendment status: § 17-25-1 0(a)(3) was constitutional in that it did not require corporations, profit or non-profit, to establish political action committees for the purpose of making contributions and expenditures to influence the outcome of a ballot question; § 17-25-10.1(j) , to the extent it prohibited corporations from making independent expenditures to influence the outcome of a ballot question was unconstitutional; § 17-25-15(c)(1) ’s first dollar public disclosure requirements were unconstitutional and, finally, § 17-25-30 ’s incentive provisions, granting a higher aggregate contribution limit and free television advertising time to publicly-funded candidates were constitutional. Vote Choice, Inc. v. Di Stefano, 814 F. Supp. 195, 1993 U.S. Dist. LEXIS 768 (D.R.I.), aff'd, 4 F.3d 26, 1993 U.S. App. LEXIS 22018 (1st Cir. 1993).

Right of Assembly.

Part of city loitering ordinance, declaring it unlawful for person standing on street or sidewalk to disturb or to annoy passersby or persons residing or doing business in the vicinity thereof, violated the First and Fourteenth Amendments, it being too vague and too broad. State v. Jamgochian, 109 R.I. 17 , 279 A.2d 923, 1971 R.I. LEXIS 1019 (1971).

Town ordinance which proscribes picketing conducted “in front of, adjacent to or with respect to any property used for residential purposes” does not violate the first amendment and does not unconstitutionally vest unbridled discretion in the town police chief. Town of Barrington v. Blake, 568 A.2d 1015, 1990 R.I. LEXIS 19 (R.I. 1990).

Right to Hold Public Office.

A city charter may constitutionally restrict city employees’ participation in nominally nonpartisan elections if political parties play a large role in the campaigns, since there is a legitimate government interest in preventing favoritism, coercion, and the development of a highly organized and politicized bureaucracy, all of which risks could be increased by the indentification of a city employee-candidate with a political party. Magill v. Lynch, 560 F.2d 22, 1977 U.S. App. LEXIS 12309 (1st Cir. 1977), cert. denied, 434 U.S. 1063, 98 S. Ct. 1236, 55 L. Ed. 2d 763, 1978 U.S. LEXIS 682 (1978).

Where record suggested that all city elections, even ostensibly nonpartisan ones, were colored by partisan politics, court could not rule a city charter provision prohibiting city employees from participating in partisan and nonpartisan campaigns invalid for overbreadth, absent further findings as to whether any political activity might be undertaken in the city without threatening legitimate government interests. Magill v. Lynch, 560 F.2d 22, 1977 U.S. App. LEXIS 12309 (1st Cir. 1977), cert. denied, 434 U.S. 1063, 98 S. Ct. 1236, 55 L. Ed. 2d 763, 1978 U.S. LEXIS 682 (1978).

The right to hold public office is one of the rights that is included within the scope of this amendment. Cummings v. Godin, 119 R.I. 325 , 377 A.2d 1071, 1977 R.I. LEXIS 1916 (1977); Martin v. State Bd. of Elections, 119 R.I. 556 , 381 A.2d 234, 1977 R.I. LEXIS 2057 (1977).

City charter provisions prohibiting all city employees from holding any elective office, including partisan and nonpartisan, state, federal and local elective office, are unconstitutionally overbroad. Cummings v. Godin, 119 R.I. 325 , 377 A.2d 1071, 1977 R.I. LEXIS 1916 (1977).

Where city charter provisions prohibiting city employees from holding public office were substantially overbroad, defendant who held a partisan elective office had standing to challenge the provisions. Cummings v. Godin, 119 R.I. 325 , 377 A.2d 1071, 1977 R.I. LEXIS 1916 (1977).

Since § 36-4-51 prohibits classified employees from holding any elective office, including partisan, nonpartisan, state, federal and local office, it is overbroad under this amendment. Martin v. State Bd. of Elections, 119 R.I. 556 , 381 A.2d 234, 1977 R.I. LEXIS 2057 (1977).

The First Amendment of the U.S. Constitution prohibits political considerations in the appointment of nonpolicy-making employees but not in the case of policy-making employees. DiPiro v. Taft, 584 F.2d 1, 1978 U.S. App. LEXIS 8821 (1st Cir. 1978), cert. denied, 440 U.S. 914, 99 S. Ct. 1229, 59 L. Ed. 2d 463, 1979 U.S. LEXIS 787 (1979).

Party affiliation is an appropriate requirement for town officials to use when selecting their solicitor and assistant solicitors. Montaquila v. St. Cyr, 433 A.2d 206, 1981 R.I. LEXIS 1246 (R.I. 1981).

The Coventry town solicitor and his assistants are not entitled to first amendment protection from patronage dismissals. Montaquila v. St. Cyr, 433 A.2d 206, 1981 R.I. LEXIS 1246 (R.I. 1981).

Although it is clear that candidacy for public office is one of the rights included within the scope of this amendment, the disqualification of a convicted felon by a state is specifically allowed under U.S. Const., Amend. 14, § 2. Gelch v. State Bd. of Elections, 482 A.2d 1204, 1984 R.I. LEXIS 655 (R.I. 1984).

Prohibitions in city charter against elected municipal officers holding any other elected office or being employed by municipality were unconstitutionally overbroad since they dealt with both protected and unprotected conduct by prohibiting all elective officers from holding any other office for profit whether the office was partisan or nonpartisan, or state, federal, or local. Cranston Teachers Alliance Local No. 1704 AFT v. Miele, 495 A.2d 233, 1985 R.I. LEXIS 548 (R.I. 1985).

The Rhode Island Board of Elections violated the plaintiff ’s rights to due process and equal protection under the First and Fourteenth Amendments by refusing to certify her candidacy for election as a delegate to the Democratic national convention on the grounds that she did not comply with a state law requiring that the name and address stated on her declaration correspond exactly to her name and address as set forth on the voting list. Felice v. Rhode Island Bd. of Elections, 781 F. Supp. 100, 1991 U.S. Dist. LEXIS 18790 (D.R.I. 1991).

Right to Vote.

The recognized legitimate interest of the state in preventing the “raiding” of the primaries of one political party by the members of another is not sufficiently compelling to justify the unreasonable and unduly restrictive provisions of §§ 17-15-24 and former 17-16-8, which prohibit a switch in party affiliation during a 26-month period encompassing two primaries and these sections were unconstitutional under U.S. Const., Art. 1, § 2 and Amendments 1 and 14. Yale v. Curvin, 345 F. Supp. 447, 1972 U.S. Dist. LEXIS 12717 (D.R.I. 1972).

The rigorousness of a court’s inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. When the right to vote is subjected to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance; when the state law imposes only reasonable restrictions upon the rights of voters, the state’s important regulatory interests are generally sufficient to justify the restrictions. Ayers-Schaffner v. DiStefano, 860 F. Supp. 918, 1994 U.S. Dist. LEXIS 12010 (D.R.I.), aff'd, 37 F.3d 726, 1994 U.S. App. LEXIS 27891 (1st Cir. 1994).

When the Board of Elections declared a primary election for school committee invalid and scheduled a new election restricted to the voters who had participated in the first election, the Board of Elections violated First and Fourteenth Amendment rights of those eligible voters who wished to vote in the second election but had not voted in the first election. Ayers-Schaffner v. DiStefano, 860 F. Supp. 918, 1994 U.S. Dist. LEXIS 12010 (D.R.I.), aff'd, 37 F.3d 726, 1994 U.S. App. LEXIS 27891 (1st Cir. 1994).

State election officials cannot restrict the right to vote in a new, curative election to those who participated in the original, defective election. Ayers-Schaffner v. Distefano, 37 F.3d 726, 1994 U.S. App. LEXIS 27891 (1st Cir. 1994).

When deciding whether a state election law violates associational rights under the federal Constitution, the court weighs the character and magnitude of the burden the state’s rule imposes on those rights against the interests the state contends justify that burden, and considers the extent to which the state’s concerns make the burden necessary. Cool Moose Party v. Rhode Island, 183 F.3d 80, 1999 U.S. App. LEXIS 20800 (1st Cir. 1999).

Where the state failed to articulate any legitimate interest for the restriction of § 17-15-24 on the ability of a party to invite registered voters from other parties to participate in its primary, the court affirmed the district court’s ruling that prohibiting such voters was unconstitutional to the extent that it prohibited them from voting in the primary of another party whose bylaws would permit their participation. Cool Moose Party v. Rhode Island, 183 F.3d 80, 1999 U.S. App. LEXIS 20800 (1st Cir. 1999).

Sleeping in Public Areas.

The act of sleeping in a public place, absent expressive content, is not constitutionally-protected conduct, and the government may constitutionally prohibit overnight sleeping in public areas as an exercise of its police power. Whiting v. Town of Westerly, 942 F.2d 18, 1991 U.S. App. LEXIS 18100 (1st Cir. 1991).

Standing.

Plaintiffs who had been adjudged not to have violated a city noise abatement ordinance had standing to challenge the constitutionality of the ordinance. Dupres v. City of Newport, 978 F. Supp. 429, 1997 U.S. Dist. LEXIS 15538 (D.R.I. 1997).

An association had standing to file a pre-enforcement suit since it was reasonable for it to infer that a real possibility of prosecution awaited if it decided to proceed with using names obtained from public records for solicitation of new members, in violation of the plain language of § 38-2-6 prohibiting commercial solicitation. Rhode Island Ass'n of Realtors v. Whitehouse, 199 F.3d 26, 1999 U.S. App. LEXIS 32451 (1st Cir. 1999).

Waiver.

Public interest in enforcing the waiver of First Amendment rights in a civil action outweighed the public policy harmed by enforcement. Wilkicki v. Brady, 882 F. Supp. 1227, 1995 U.S. Dist. LEXIS 5581 (D.R.I. 1995).

Backround Checks.

Because there is no federal right to demand that police stay within the confines of state law in conducting background checks of those purchasing firearms, any error in concluding that a particular individual is disqualified from purchasing a firearm does not amount to a constitutional violation. Gardner v. Vespia, 252 F.3d 500, 2001 U.S. App. LEXIS 12089 (1st Cir. 2001).

Right.

The Constitution does not grant the right to bear arms, but only provides that the right shall not be infringed by congress. United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588, 1875 U.S. LEXIS 1794 (1876).

State Regulation.

This amendment applies only to the national government, hence a state law prohibiting bodies of men, other than militia or federal troops, from associating, drilling or parading with arms is valid. Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615, 1886 U.S. LEXIS 1760 (1886).

Construction.

The restrictions of this amendment apply only as a limitation on government action, and not to actions of individuals in which the government has no part. Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 1921 U.S. LEXIS 1576 (1921).

The law of search and seizure is the interplay of the Fourth and Fifth Amendments, and it reflects a dual purpose: (1) protection of the privacy of the individual, his right to be let alone, and (2) protection of the individual against compulsory production of evidence to be used against him. Davis v. United States, 328 U.S. 582, 66 S. Ct. 1256, 90 L. Ed. 1453, 1946 U.S. LEXIS 2180 (1946).

Former R.I. Const., Art. 1, § 6 (see now R.I. Const., Art. 1, Sec. 6 ) has same effect as this amendment. State v. Davis, 105 R.I. 247 , 251 A.2d 394, 1969 R.I. LEXIS 746 (1969).

This amendment protects citizens from abuses by the government, not from actions of private parties. In re Providence Journal Co., 820 F.2d 1342, 1986 U.S. App. LEXIS 36502 (1st Cir. 1986), modified, 820 F.2d 1354, 1987 U.S. App. LEXIS 6752 (1st Cir. 1987).

Arrests.

Where police officer enters private club to request a car owner to remove his illegally parked vehicle and arrests him for the commission of a felony in his presence, there is no infringement of the defendant’s constitutional rights under the Fourth or Fourteenth Amendments to the U.S. Constitution.Ouimette v. Howard, 339 F. Supp. 1166, 1972 U.S. Dist. LEXIS 14897 (D.R.I.), aff'd, 468 F.2d 1363, 1972 U.S. App. LEXIS 6891 (1st Cir. 1972).

In a warrantless arrest case, the probability of criminal activity, and not a prima facie showing, is the standard of probable cause. Palmigiano v. Mullen, 119 R.I. 363 , 377 A.2d 242, 1977 R.I. LEXIS 1909 (1977).

Where defendant was in his aunt’s house with her permission when police entered the house to arrest him, he had standing to challenge the legality of the warrantless entry by police. Palmigiano v. Mullen, 119 R.I. 363 , 377 A.2d 242, 1977 R.I. LEXIS 1909 (1977).

Where defendant had been seen riding on a motorcycle to the robbery-murder site with a known accomplice several days prior to the crime, and a motorcyclist was involved in the crime, and a stolen car also involved in the crime was found abandoned near defendant’s home, and an eyewitness had given police a description which fitted defendant, police had probable cause to arrest defendant without a warrant. Palmigiano v. Mullen, 119 R.I. 363 , 377 A.2d 242, 1977 R.I. LEXIS 1909 (1977).

Execution of the arrest warrant was proper where there was uncontradicted testimony that the agents, after announcing their identity and the reason for their presence at defendant’s home, waited several minutes before breaking the glass door and entering the house, and there was further testimony that the officers did not break through the door until one agent saw someone running around inside the house. State v. Sundel, 121 R.I. 638 , 402 A.2d 585, 1979 R.I. LEXIS 2043 (1979).

In attempting to ascertain whether a person was arrested at a given time, the court looks to several factors, including the following: The extent to which the person’s freedom of movement has been curtailed and the degree of force used by the police, the belief of a reasonable innocent person in the same circumstances, and whether the person had the option of not going with the police. State v. Bailey, 417 A.2d 915, 1980 R.I. LEXIS 1720 (R.I. 1980).

In order to constitute an arrest, the detention of a person need not be accompanied by formal words of arrest or station-house booking. State v. Frazier, 421 A.2d 546, 1980 R.I. LEXIS 1857 (R.I. 1980).

Defendant’s liberty was not so curtailed as to constitute an arrest where, after receiving a telephone request from police, he went to a police station for questioning, was not told that he was under arrest or that he was not free to go, and chose to remain at the station and answer questions. State v. Ferola, 518 A.2d 1339, 1986 R.I. LEXIS 561 (R.I. 1986).

The warrantless arrest of the defendant by university police in the defendant’s girlfriend’s apartment was not illegal where the defendant’s girlfriend consented to the officers’ ingress into her apartment and the police could not obtain a warrant for the defendant’s arrest because the defendant had given a false name and the address of his girlfriend. State v. Harris, 609 A.2d 944, 1992 R.I. LEXIS 132 (R.I. 1992).

A person is seized or under arrest for Fourth Amendment purposes if, in view of all the circumstances, a reasonable person would believe that he or she was not free to leave. In making this determination, a court may consider the following factors: (1) the extent to which the person’s freedom is curtailed; (2) the degree of force employed by the police; (3) the belief of a reasonable, innocent person in identical circumstances; and (4) whether the person had the option of not accompanying the police. State v. Diaz, 654 A.2d 1195, 1995 R.I. LEXIS 42 (R.I. 1995).

Where the officer was afforded an adequate opportunity to see and immediately identify what he “almost kind of knew” was cocaine upon stopping defendant for a traffic violation, evidence supported a finding of probable cause of criminal activity sufficient for defendant’s arrest. State v. Flores, 996 A.2d 156, 2010 R.I. LEXIS 90 (R.I. 2010).

It was not error to deny defendant’s motion to suppress defendant’s inculpatory statements to a police officer because defendant was not in custody when defendant made the statements, as nothing showed defendant’s freedom of movement was curtailed or that the officer used force that would make a reasonable person think the person was not free to leave. State v. Jimenez, 33 A.3d 724, 2011 R.I. LEXIS 148 (R.I. 2011).

Defendant’s confession was not the fruit of an illegal arrest because the arresting officer had probable cause to arrest defendant through corroboration of a dispatch and suspicious acts of the occupants of the car defendant was in. State v. Chum, 54 A.3d 455, 2012 R.I. LEXIS 131 (R.I. 2012).

There was insufficient evidence to show that sufficiently exigent circumstances were present so as to justify defendant’s warrantless arrest. The officers clearly knew the identity of the person who they believed was the shooter (defendant) from almost the very beginning of their investigation, and a warrant could have been obtained during the approximately seven hours between the time when the police had ample reason to believe defendant had committed the shooting and his arrest. State v. Gonzalez, 136 A.3d 1131, 2016 R.I. LEXIS 43 (R.I. 2016).

— Excessive Force.

A federal security officer’s conduct in asking for identification from an illegally parked motorist who was about to enter a federal building but who refused to move his car, and in pushing the motorist into the United States attorney’s office, frisking him and arresting him for failure to comply with a federal officer, was objectively reasonable. Perreault v. Thornton, 781 F. Supp. 873, 1991 U.S. Dist. LEXIS 19119 (D.R.I. 1991).

Trial court erred by refusing to quash a subpoena defendants issued against the Governor seeking to compel his appearance and testimony at their criminal trial on criminal misdemeanor charges for selling unstamped and untaxed cigarettes. The Governor’s testimony, even if compelled, was not relevant to the theory of the defense that the state police used excessive force in arresting defendants. State v. Thomas, 936 A.2d 1278, 2007 R.I. LEXIS 136 (R.I. 2007).

Claimant’s assault-and-battery claim against the police officers who arrested the claimant was not fit for resolution by summary judgment; although scant, the evidence raised a genuine dispute as to the propriety of the officers’ use of force, if such force in fact was used. A reasonable jury could have accepted the claimant’s account over the contradictory narrative provided by an arresting officer and inferred that the level of force applied by the officers was excessive under the circumstances. Albanese v. Town of Narragansett, 135 A.3d 1179, 2016 R.I. LEXIS 33 (R.I. 2016).

— Jurisdictional Boundaries.

When a defendant in custody suspected of driving under the influence of alcohol was taken to a neighboring town, outside of the arresting officers’ jurisdiction, for breathalyzer testing, his detention beyond the borders of the arresting officers’ jurisdiction was not an unlawful arrest in violation of U.S. Const. amend. IV or Rhode Island Const. art. I, § 6, because defendant was already in custody and the officers were acting in accordance with their duty to gather and preserve evidence for use at trial. State ex rel. Town of Portsmouth v. Hagan, 819 A.2d 1256, 2003 R.I. LEXIS 80 (R.I. 2003).

— Pretext.

Where the defendant was arrested on an outstanding municipal court warrant for failure to appear for a traffic violation, and the same day was identified in a lineup for a separate kidnap and assault, the defendant’s original arrest was not fatally pretextual and his lineup identification was not unreasonable under fourth amendment standards. State v. Scurry, 636 A.2d 719, 1994 R.I. LEXIS 29 (R.I. 1994).

Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis; an arrest is not fatally pretextual merely because the police officers have a dual motive for making an arrest as long as probable cause exists sufficient to justify the original stop or search. State v. Bjerke, 697 A.2d 1069, 1997 R.I. LEXIS 221 (R.I. 1997).

— Probable Cause.

Before an officer can make a valid arrest or conduct a search, he must possess sufficient probable cause. State v. Bennett, 430 A.2d 424, 1981 R.I. LEXIS 1161 (R.I. 1981).

An officer has probable cause to make an arrest when he personally knows or reliably has been informed of facts sufficient to justify a person of reasonable caution to believe not only that a crime has been committed but also that the person to be arrested has committed the crime. State v. Bennett, 430 A.2d 424, 1981 R.I. LEXIS 1161 (R.I. 1981); State v. Burns, 431 A.2d 1199, 1981 R.I. LEXIS 1179 (R.I. 1981).

Although probable cause may be grounded on hearsay information and need not necessarily reflect the direct personal observations of the arresting officer, there must exist a substantial basis for relying on the hearsay information. State v. Burns, 431 A.2d 1199, 1981 R.I. LEXIS 1179 (R.I. 1981).

Probable cause must exist at the time an arrest is made; probable cause cannot be grounded upon information subsequently gained. State v. Burns, 431 A.2d 1199, 1981 R.I. LEXIS 1179 (R.I. 1981).

When an arrest is made without a warrant, the standard for measuring probable cause must be at least as stringent as when a warrant is obtained. State v. Bennett, 430 A.2d 424, 1981 R.I. LEXIS 1161 (R.I. 1981).

The probable-cause standard for determining the legality of a warrantless arrest is no less than the same standard applied with respect to the issuance of a warrant. State v. Burns, 431 A.2d 1199, 1981 R.I. LEXIS 1179 (R.I. 1981).

Facts that become known to the police subsequent to an arrest are irrelevant to the probable-cause determination. State v. Jenison, 442 A.2d 866, 1982 R.I. LEXIS 814 (R.I. 1982).

The fact that an individual is in the presence of or associating with others who are suspsected of criminal activity does not, by itself, establish probable cause to arrest such person. State v. Jenison, 442 A.2d 866, 1982 R.I. LEXIS 814 (R.I. 1982).

Ample evidence that probable cause existed for defendant’s arrest existed where the patrolman was a police officer with ten years of experience and training; he was signaled to stop his vehicle while patrolling the area in which the victim was murdered. After speaking with witnesses, he immediately parked his patrol car on the street in front of the steps leading to the park; upon entering the park, he observed defendant leaning over the victim’s body with both hands on her chest; the patrolman saw no one else in the area; the victim was observed bleeding profusely from the neck, her body still warm; the defendant’s arms, hands, and clothing were covered with blood; the patrolman also saw a pair of men’s pants on a park bench in close proximity to the victim; and broken glass was observed on the bench, on the victim’s body and all about the surrounding area. State v. Adams, 481 A.2d 718, 1984 R.I. LEXIS 601 (R.I. 1984).

Practical common sense considerations can properly form a determination that probable cause exists. State v. Pacheco, 481 A.2d 1009, 1984 R.I. LEXIS 602 (R.I. 1984).

Absent entry into a dwelling for the purpose of arresting a criminal suspect, there is no constitutional requirement that police officers first obtain an arrest warrant prior to arresting a suspect; provided, however, that the arresting officers have probable cause to believe that the suspect has committed a felony. State v. Pacheco, 481 A.2d 1009, 1984 R.I. LEXIS 602 (R.I. 1984).

Probable cause to arrest exists if, at the time of the arrest, the arresting officer has knowledge of facts and circumstances, based on reasonable and trustworthy information, sufficient to cause a prudent officer to believe that the suspect has committed or is committing a crime. State v. Andrade, 544 A.2d 1140, 1988 R.I. LEXIS 96 (R.I. 1988).

An investigative detention without probable cause could constitute illegal seizure under this amendment. State v. Mead, 544 A.2d 1146, 1988 R.I. LEXIS 108 (R.I. 1988).

A parolee may be arrested in his own home by a police officer not possessing a judicial warrant where the police officer acts in good faith at the request of parole authorities who, in accordance with a parole regulation, have found reasonable cause to order the individual’s detention as a suspected parole violator. United States v. Cardona, 903 F.2d 60, 1990 U.S. App. LEXIS 7674 (1st Cir. 1990), cert. denied, 498 U.S. 1049, 111 S. Ct. 758, 112 L. Ed. 2d 778, 1991 U.S. LEXIS 363 (1991).

The state’s failure to prove that the officer who obtained and registered an arrest warrant on a computer information bank had the requisite probable cause to issue it, rendered the resulting arrest on this outstanding but unavailable warrant illegal. State v. Taylor, 621 A.2d 1252, 1993 R.I. LEXIS 82 (R.I. 1993).

A police officer possessed the requisite probable cause to detain and arrest the defendant since the officer had definite knowledge that a crime had been committed, there was a match between the defendant’s appearance and the eyewitness’ description of the culprit, the arrest took place 20 minutes after the commission of the crime within 10-12 blocks of its occurrence at a location consistent with the direction in which the gunman fled the scene, and the suspect displayed extreme nervousness when the officer approached him. State v. Guzman, 752 A.2d 1, 2000 R.I. LEXIS 98 (R.I. 2000).

Where an informant told police that defendant admitted killing the victim, and told them a detail about the murder that had not been released publicly, her information about him, coupled with his own statements and actions, furnished probable cause to arrest him without a warrant; therefore, his confession and evidence seized by police were admissible. State v. Musterd, 56 A.3d 931, 2012 R.I. LEXIS 133 (R.I. 2012).

— Warrant Requirement.

Although there are many circumstances in which an arrest is made without a warrant, the United States Supreme Court has expressed a strong preference that arrests be made with warrants. State v. Bennett, 430 A.2d 424, 1981 R.I. LEXIS 1161 (R.I. 1981).

Warrants are not required in all circumstances involving arrests. State v. Burns, 431 A.2d 1199, 1981 R.I. LEXIS 1179 (R.I. 1981).

An arrest effectuated without a warrant must be grounded on something more than mere suspicion. State v. Burns, 431 A.2d 1199, 1981 R.I. LEXIS 1179 (R.I. 1981).

When an arrest is made without a warrant, the fourth amendment’s requirement of probable cause for the arrest remains absolute. State v. Burns, 431 A.2d 1199, 1981 R.I. LEXIS 1179 (R.I. 1981).

Constitutional Tort.

An arrestee has cause of action against law enforcement agencies who breach their duty to maintain accurate records where the breach results in a false or unconstitutional arrest actionable under both state and federal law. Testa v. Winquist, 451 F. Supp. 388, 1978 U.S. Dist. LEXIS 17768 (D.R.I. 1978).

A citizen has a right of action under this amendment for violations of this amendment by government officials. This remedy is available whether or not there is an equally available effective statutory remedy. Patriarca v. FBI, 639 F. Supp. 1193, 1986 U.S. Dist. LEXIS 22740 (D.R.I. 1986).

Plaintiff was entitled to sue the federal government for damages and injunctive relief, where the suit was based on a claim that the government had improperly disclosed records of illegal electronic surveillance conducted against him. Patriarca v. FBI, 639 F. Supp. 1193, 1986 U.S. Dist. LEXIS 22740 (D.R.I. 1986).

— Defense.

A government official is entitled to only a “Qualified immunity” defense in a Bivens-type tort action under this amendment. This defense requires that the official claiming it establish his objective knowledge of basic constitutional rights; the qualified immunity is defeated if an official knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the plaintiff. Morinville v. Old Colony Cooperative Bank, 579 F. Supp. 1498, 1984 U.S. Dist. LEXIS 19598 (D.R.I. 1984).

Corporations.

Fourth amendment protections encompass corporations and their papers. In re Lafayette Academy, Inc., 462 F. Supp. 767, 1978 U.S. Dist. LEXIS 7265 (D.R.I. 1978), aff'd, 610 F.2d 1, 1979 U.S. App. LEXIS 10868 (1st Cir. 1979), disapproved, United States v. Christine, 687 F.2d 749, 1982 U.S. App. LEXIS 26034 (3d Cir. 1982).

Levy on Taxpayer’s Property.

Where internal revenue agents seized property under an invalid lien levy for unpaid taxes, the court held that the execution, as distinguished from the imposition of the levy, involved nondiscretionary ministerial action and the agents and the government had no immunity from suit for damages for a seizure that was tortious or violative of the owner’s rights under this amendment or R.I. Const., art. I, § 6 . Nickerson v. Gilbert, 66 F.R.D. 593, 1975 U.S. Dist. LEXIS 12668 (D.R.I. 1975).

Places or Property Subject to Seizure.

— Abandoned Property.

Although abandoned property may be used for evidentiary purposes, it may not be used if the abandonment results from illegal police activity. State v. Bennett, 430 A.2d 424, 1981 R.I. LEXIS 1161 (R.I. 1981).

Where the seizure of defendant was illegal because it was without a warrant and not based upon probable cause or other circumstances that would have validated any type of stop and the unlawful action of the police in seizing the defendant caused him to drop a bag containing marijuana, the dropping of the bag was not a voluntary abandonment but rather forced by the actions of the officers and being procured as a result of an illegal arrest and seizure and should have been excluded at trial. State v. Bennett, 430 A.2d 424, 1981 R.I. LEXIS 1161 (R.I. 1981).

Where jacket had been abandoned by defendant by his disclaimer of ownership, he had no standing to challenge search of jacket. State v. Fournier, 448 A.2d 1230, 1982 R.I. LEXIS 1129 (R.I. 1982).

— Automobiles.

Where a defendant under arrest, when asked for the keys to his car, which was in police custody, tossed the keys to the officers, there is present a situation which suggests the probability that such act was a submission to authority rather than an intelligent waiver of his constitutional protection against search and seizure, but a finding of consent freely and intelligently given, is not precluded and is a question to be determined by the trial justice. State v. Leavitt, 103 R.I. 273 , 237 A.2d 309, 1968 R.I. LEXIS 794 , cert. denied, 393 U.S. 881, 89 S. Ct. 185, 21 L. Ed. 2d 155, 1968 U.S. LEXIS 968 (1968).

Where a search of an automobile in which burglar tools were found was reasonably related in time and place to the arrest, the search without a warrant was proper even though the defendant may not have been within physical control of the police at the scene when the search was made. State v. Moore, 106 R.I. 92 , 256 A.2d 197, 1969 R.I. LEXIS 599 (1969).

Under the automobile exception to the warrant requirement, no search warrant is needed to search a vehicle which has been legally stopped. Moreover, the scope of the search is not limited to an examination of the vehicle’s passenger compartment; rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found. United States v. McHugh, 575 F. Supp. 111, 1983 U.S. Dist. LEXIS 11900 (D.R.I. 1983), aff'd, 769 F.2d 860, 1985 U.S. App. LEXIS 21893 (1st Cir. 1985).

The defendant asserting a fourth amendment violation must show that he had a reasonable expectation of privacy in the place searched or the thing seized. Two factors must be proven to satisfy this test: first, did the defendant exhibit a subjective expectation of privacy and, second, was this subjective expectation justifiable when viewed objectively under the circumstances. United States v. McHugh, 575 F. Supp. 111, 1983 U.S. Dist. LEXIS 11900 (D.R.I. 1983), aff'd, 769 F.2d 860, 1985 U.S. App. LEXIS 21893 (1st Cir. 1985).

Removal of a wire cord without a warrant from the smashed front of a car which had been impounded after an accident was not a violation of the owner’s right to privacy nor an illegal seizure. State v. Timms, 505 A.2d 1132, 1986 R.I. LEXIS 416 (R.I. 1986).

Warrantless search of an automobile which was parked in an apartment complex’s lot did not violate defendant’s rights, where there was no evidence that he owned or leased the vehicle, or that it was registered to him. United States v. Aguirre, 839 F.2d 854, 1988 U.S. App. LEXIS 1835 (1st Cir. 1988).

Where police officers, after making reasonable stop of a vehicle on an interstate highway, ascertain that neither occupant is properly licensed to drive, it is completely appropriate for the officers to impound the vehicle and bring it to a police barracks for safekeeping. United States v. Rodriguez-Morales, 929 F.2d 780, 1991 U.S. App. LEXIS 4854 (1st Cir. 1991), cert. denied, 502 U.S. 1030, 112 S. Ct. 868, 116 L. Ed. 2d 774, 1992 U.S. LEXIS 296 (1992).

Conduct reported by a private security guard, the observation of police officers that two motor vehicles were operating without lights, and the conduct of the drivers of the motor vehicles, all taken together, provide a reasonable articulable suspicion justifying detention of the vehicles. State v. Nunez, 588 A.2d 124, 1991 R.I. LEXIS 44 (R.I. 1991).

The fact that the defendant, whose wife had rented a car, had permission to use the car on occasion, and his wife apparently relinquished the only set of keys to the automobile to him on those occasions, did not diminish the importance of the fact that the defendant, according to the rental agreement, had no authority from the true owner to drive the vehicle, nor did he make any showing that he and the dealership made an arrangement whereby the defendant could legitimately drive the vehicle, confirmed that the defendant had no legitimate expectation of privacy in the vehicle and therefore lacked standing to contest the validity of the search of the vehicle. State v. Bertram, 591 A.2d 14, 1991 R.I. LEXIS 79 (R.I. 1991).

IRS agents needed no warrant to seize defendant’s clearly visible automobile parked in an unobstructed driveway where he had no expectation of privacy. United States v. Roccio, 981 F.2d 587, 1992 U.S. App. LEXIS 32467 (1st Cir. 1992), cert. denied, 509 U.S. 932, 113 S. Ct. 3063, 125 L. Ed. 2d 744, 1993 U.S. LEXIS 4621 (1993).

Exigency is no longer a requirement for the automobile exception to the Fourth Amendment Warrant requirement. As long as the police have probable cause to believe that an automobile, or a container located therein, holds contraband or evidence of a crime, then police may conduct a warrantless search of the vehicle or container, even if the vehicle has lost its mobility and is in police custody. State v. Werner, 615 A.2d 1010, 1992 R.I. LEXIS 202 (R.I. 1992).

In light of the Supreme Court’s clarification of the exigency issue, the conflicting interpretations of article I, section 6, of the Rhode Island Constitution and the Fourth Amendment to the United States Constitution concerning exigency are eliminated. State v. Werner, 615 A.2d 1010, 1992 R.I. LEXIS 202 (R.I. 1992).

The defendant’s commission of a misdemeanor alone (operation of a unregistered vehicle in violation of § 31-8-2 ) gave the officer probable cause to stop and detain him, and from that point on, any evidence obtained pursuant to the lawful stop, such as the odor of alcohol, slurred speech, and bloodshot eyes, would in effect be in plain view of the arresting officer and would support an arrest for suspicion of driving while under the influence. State v. Bjerke, 697 A.2d 1069, 1997 R.I. LEXIS 221 (R.I. 1997).

The question of whether a protective search for weapons is permissible does not depend on the location of the vehicle’s occupants or their relative freedom of movement, but on whether the officer possesses a reasonable belief based upon specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and may have the present ability to obtain a weapon. State v. Milette, 727 A.2d 1236, 1999 R.I. LEXIS 95 (R.I. 1999), cert. denied, 528 U.S. 1157, 120 S. Ct. 1164, 145 L. Ed. 2d 1075, 2000 U.S. LEXIS 1066 (2000).

Where an officer was confronted by two individuals who were engaged in furtive and suspicious behavior prior to and immediately following a lawful traffic stop, and where his training and experience with supremacist groups led him to conclude that there was a high probability that these individuals were armed, he was justified in deciding to conduct a limited search of the vehicle in the precise area where the occupants had concentrated their previous attention. State v. Milette, 727 A.2d 1236, 1999 R.I. LEXIS 95 (R.I. 1999), cert. denied, 528 U.S. 1157, 120 S. Ct. 1164, 145 L. Ed. 2d 1075, 2000 U.S. LEXIS 1066 (2000).

The trial justice was not clearly wrong in concluding that a state trooper’s actions in opening a car door did not constitute an unreasonable search and were justified under the community-caretaking doctrine, since the officer observed the defendant driving in the breakdown lane at a high rate of speed without hazard lights, defendant’s car came to an abrupt stop approximately 10 feet from the officer’s patrol cruiser, and defendant’s stopped car was then partly protruding into the travel lane. State v. Roussell, 770 A.2d 858, 2001 R.I. LEXIS 117 (R.I. 2001).

Trial court properly denied defendant’s motion to suppress a gun and ammunition seized from his car, as a police officer had a reasonable belief that he might be armed and dangerous based on her observation of loose bullets in his car; his furtive movements and avoidance of eye contact; his positioning of his hands so she could not see them; and her discovery of a knife during a cursory pat-down of his clothing. State v. Santos, 64 A.3d 314, 2013 R.I. LEXIS 65 (R.I. 2013).

As defendant was not under arrest when a police officer handcuffed him and placed him in her cruiser for her own safety, she did not need probable cause to do so; and as he was detained only long enough for her to search his car for weapons, the trial court properly denied his motion to suppress a revolver and ammunition she found in his car. State v. Santos, 64 A.3d 314, 2013 R.I. LEXIS 65 (R.I. 2013).

Police had probable cause to justify the seizure of defendant’s vehicle under the automobile exception and thus there was no violation of the Fourth Amendment or R.I. Const. art. I, § 6 , and the shell casing and cell phones in the vehicle were admissible. State v. Beauregard, 198 A.3d 1, 2018 R.I. LEXIS 130 (R.I. 2018).

— — Passengers.

The Fourth Amendment does not require that an officer have a reasonable belief or a valid reason to suspect that a person is armed and dangerous before he or she can order the person out of a lawfully stopped vehicle. Therefore, when the vehicle was lawfully stopped, no constitutional rights were violated by the officer’s ordering the defendant, a passenger, to leave the vehicle. State v. Collodo, 661 A.2d 62, 1995 R.I. LEXIS 182 (R.I. 1995).

A particularized suspicion was justifiably raised in the minds of the arresting officers that the defendant was engaged in or was about to engage in wrongdoing since the defendant, a passenger in a speeding vehicle in which the driver was unable to produce either a driver’s license or the vehicle’s registration, was fidgeting, looking away, and when after exiting the vehicle, the defendant shied away from the officer on one side. Although furtive gestures alone are not sufficient to justify a Terry type of search, these facts as available to the officer at the moment of the search were sufficiently specific and articulable to justify a pat down under Terry. State v. Collodo, 661 A.2d 62, 1995 R.I. LEXIS 182 (R.I. 1995).

Where defendant made furtive movements downward as a rear-seat passenger in a car in which cocaine had been found in plain view during a traffic stop, his conduct warranted an officer to become reasonably suspicious and place defendant in a cruiser; cocaine was also found after defendant was released from the cruiser. Because the seizure was constitutional, a trial court did not err in denying defendant’s motion to suppress the cocaine found in the cruiser. State v. Foster, 842 A.2d 1047, 2004 R.I. LEXIS 10 (R.I. 2004).

— Hotel Room.

Seizure of narcotics by police after entry of hotel room by passkey without a warrant and without presence of parties who paid for room violated the Fourth Amendment. United States v. Jeffers, 342 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 59, 1951 U.S. LEXIS 2462 (1951).

— House Trailers.

A house trailer was subject to seizure as a vehicle used to facilitate the transportation of narcotic drugs, as against contention by claimant that it was her home. Biasotti v. Clarke, 51 F. Supp. 608, 1943 U.S. Dist. LEXIS 2220 (D.R.I. 1943).

— Houses and Curtilage.

Courts have found that a search of any part of a room that is not accessible to an arrestee is unreasonable even if the search does not extend beyond the room in which the arrest occurred. State v. Robalewski, 418 A.2d 817, 1980 R.I. LEXIS 1717 (R.I. 1980).

Where the police had been advised by an informant that the exterior windows of the defendant’s apartment were equipped with one-way mirrored glass, and where they knew that the defendant had a history of violence and identified the mirrored windows on the scene before using a ruse to obtain entry to search the apartment, the use of the ruse reduced the possibility of violence and destruction of property, and there was no constitutional violation. State v. Mastracchio, 721 A.2d 844, 1998 R.I. LEXIS 316 (R.I. 1998).

Trial court properly denied defendant’s motion to suppress evidence found in two apartments, pursuant to R.I. Super. Ct. R. Crim. P. 12 , where it was found that he was arrested legally outside of the dwelling, however, it was noted that even if it were assumed that the arrest involved a constructive entry in which the police ordered defendant to emerge from the building and then placed him under arrest, exigent circumstances justified the warrantless arrest; accordingly, there was no protection under the Fourth Amendment. State v. Werner, 831 A.2d 183, 2003 R.I. LEXIS 145 (R.I. 2003), cert. denied, 540 U.S. 1123, 124 S. Ct. 1083, 157 L. Ed. 2d 921, 2004 U.S. LEXIS 356 (2004).

— Motor Vehicle Registrations.

Since motor vehicle registration information is entirely within the control and custody of the state through the Registry of Motor Vehicles, the public at large and therefore this defendant cannot have a expectation of privacy of that information from searches on the part of the state; thus, the police officers did not conduct an invalid search by running a computer check of the vehicle license plates. State v. Bjerke, 697 A.2d 1069, 1997 R.I. LEXIS 221 (R.I. 1997).

— Open Fields Doctrine.

The “open fields” doctrine is applicable to land outside the curtilage and, as such, it does not fall within the scope of Fourth Amendment protection. Thus a search warrant was not required to perform a permissible aerial surveillance of the defendant’s property, nor was a warrant required to authorize seizure of the contraband. State v. Beane, 609 A.2d 950, 1992 R.I. LEXIS 146 (R.I. 1992).

— Papers, Records, and Reports.

Although corporate business records are not protected by the Fifth Amendment because they are readily obtainable by subpoena, business records which were illegally seized through an unconstitutional search warrant were not admissible under the “inevitable discovery” doctrine, because the government did not have sufficient knowledge, prior to the illegal search, to have been able to subpoena the particular documents which were illegally seized. United States v. Guarino, 610 F. Supp. 371, 1984 U.S. Dist. LEXIS 21051 (D.R.I. 1984).

— — Subpoena Duces Tecum.

This amendment was not intended to interfere with the power of courts to compel, through a subpoena duces tecum, the production in court of documentary evidence. Hale v. Henkel, 201 U.S. 43, 26 S. Ct. 370, 50 L. Ed. 652, 1906 U.S. LEXIS 1815 (1906), overruled in part, Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678, 1964 U.S. LEXIS 2229 (1964).

The federal government, which by unlawful search and seizure obtained possession and made copies of corporation’s books and papers, could not use information thus gained to compel production of the originals in court by subpoena after they have been restored to the corporation by order of court. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319, 1920 U.S. LEXIS 1685 (1920).

— “Public” Places.

The hallway of an apartment building is a “public” place for purposes of interpreting this amendment, and may be entered by police without a warrant. State v. Eddy, 519 A.2d 1137, 1987 R.I. LEXIS 389 (R.I. 1987).

— Storage Compartment.

FBI agent’s insertion of a key into the lock of a storage compartment solely for the purpose of identifying ownership does not constitute a search. United States v. Lyons, 898 F.2d 210, 1990 U.S. App. LEXIS 3690 (1st Cir.), cert. denied, 498 U.S. 920, 111 S. Ct. 295, 112 L. Ed. 2d 249, 1990 U.S. LEXIS 5332 (1990).

— Vessels.

The right of customs officers to board any vessel to examine the manifest and to seize the vessel if any violation of law is disclosed does not violate this amendment. Alksne v. United States, 39 F.2d 62, 1930 U.S. App. LEXIS 4025 (1st Cir.), cert. denied, 281 U.S. 768, 50 S. Ct. 467, 74 L. Ed. 1175, 1930 U.S. LEXIS 696 (1930).

Prisoners.

Although a prisoner retains some measure of fourth amendment protection, it does not rise to the level possessed by unincarcerated members of society. State v. Wilmot, 461 A.2d 401, 1983 R.I. LEXIS 969 (R.I. 1983).

A prisoner does not have a right to insist that a warrant be obtained before authorities can search his or her cell. State v. Wilmot, 461 A.2d 401, 1983 R.I. LEXIS 969 (R.I. 1983).

Search by police officers of prisoner’s cell relying upon information from fellow inmates that the defendant was murderer was based upon reasonable or probable cause and was therefore valid without necessity of a warrant. State v. Wilmot, 461 A.2d 401, 1983 R.I. LEXIS 969 (R.I. 1983).

A prisoner in an adult correctional institution retains only those rights not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration. Laurie v. Senecal, 666 A.2d 806, 1995 R.I. LEXIS 250 (R.I. 1995).

— Body Cavity Searches.

Because body cavity searches impinge seriously upon constitutional values, the security concerns of a maximum security facility could not support a search policy that required even those charged with minor offenses or traffic violations to be subject to such searches without there being some reasonable suspicion that the individual inmate was concealing contraband. Roberts v. Rhode Island, 239 F.3d 107, 2001 U.S. App. LEXIS 2043 (1st Cir. 2001).

— Prison Visitors.

A prison visitor retains a fourth amendment right to be free from unreasonable searches and seizures. Cochrane v. Quattrocchi, 949 F.2d 11, 1991 U.S. App. LEXIS 26959 (1st Cir. 1991), cert. denied, 504 U.S. 985, 112 S. Ct. 2965, 119 L. Ed. 2d 586, 1992 U.S. LEXIS 3566 (1992).

Prison visitor gave no “legally cognizable consent” to a strip search before being permitted to visit her inmate father, where she was confronted with a “constitutionally intolerable” choice between being denied prison visitation access indefinitely or waiving her constitutional right to be free from unreasonable search. Cochrane v. Quattrocchi, 949 F.2d 11, 1991 U.S. App. LEXIS 26959 (1st Cir. 1991), cert. denied, 504 U.S. 985, 112 S. Ct. 2965, 119 L. Ed. 2d 586, 1992 U.S. LEXIS 3566 (1992).

Privacy.

Where police had lawfully stopped defendant’s vehicle for speeding and requested to see his driver’s license and registration, the fact that an officer walked to the passenger side of the vehicle and glanced through the window was not an invasion of privacy, particularly in view of a tip received by police about a drug transaction involving a vehicle the same color as defendant’s. State v. Marshall, 120 R.I. 306 , 387 A.2d 1046, 1978 R.I. LEXIS 672 (1978).

This amendment to the Constitution of the United States and its counterpart, former R.I. Const., art. 1, § 6 (see now R.I. Const., Art. 1, Sec. 6 ), both protect an individual’s reasonable expectation of privacy. State v. Bennett, 430 A.2d 424, 1981 R.I. LEXIS 1161 (R.I. 1981).

Whether the Fourth Amendment’s prohibition against unreasonable searches and seizures has been violated depends on whether the person asserting a fourth amendment violation had a reasonable expectation of privacy in the place searched or the thing seized. United States v. Thornley, 707 F.2d 622, 1983 U.S. App. LEXIS 28069 (1st Cir. 1983).

The Supreme Court has set forth a two-step test for determining whether a reasonable expectation of privacy exists: whether the individual has exhibited a subjective expectation and whether such subjective expectation, viewed objectively, is justifiable under the circumstances. The burden is on the defendant to satify these two tests. United States v. Thornley, 707 F.2d 622, 1983 U.S. App. LEXIS 28069 (1st Cir. 1983).

A legitimate expectation of privacy means more than a subjective expectation of keeping incriminating evidence hidden. United States v. Thornley, 707 F.2d 622, 1983 U.S. App. LEXIS 28069 (1st Cir. 1983).

One cannot insulate himself against the discovery of incriminating material by removing it from his own premises, and hiding it in a place in which he has no legal interest or even access rights. United States v. Thornley, 707 F.2d 622, 1983 U.S. App. LEXIS 28069 (1st Cir. 1983).

Defendants had no reasonable expectation of privacy in the telephone company’s business records of toll calls made from their residence and thus could not protest their transfer. State v. McGoff, 517 A.2d 232, 1986 R.I. LEXIS 542 (R.I. 1986).

Regulations requiring employment-background checks and criminal-record checks, including fingerprinting, for the owners and operators of pre-school programs and all other persons including full-time or part-time employees such as teachers, aides, secretaries, food handlers, bus drivers, volunteers, and student teachers are valid and do not violate constitutional provisions relating to due process, equal protection, search and seizure, and the right to privacy. Henry v. Earhart, 553 A.2d 124, 1989 R.I. LEXIS 4 (R.I. 1989).

The defendant lacks a sufficient expectation of privacy in a car to entitle him to challenge its seizure and search, where he has only a casual possession of the car and does not have direct authority from the owner to use it. United States v. Sanchez, 943 F.2d 110, 1991 U.S. App. LEXIS 20220 (1st Cir. 1991).

Because Fourth Amendment rights are personal and may not be asserted vicariously, the first inquiry in examining a Fourth Amendment claim is whether the defendant has a legitimate expectation of privacy in the area searched or the item seized. United States v. Sanchez, 943 F.2d 110, 1991 U.S. App. LEXIS 20220 (1st Cir. 1991).

Defendant did not have a legitimate expectation of privacy in the blood test done at the hospital following a serious automobile accident and the subsequent use of the test results did not violate defendant’s fourth amendment rights. State v. Guido, 698 A.2d 729, 1997 R.I. LEXIS 252 (R.I. 1997).

Where the attorney general failed to articulate the state’s interest in protecting the privacy of its citizens as a justification for the blanket prohibition against using public information to solicit for commercial purposes contained in § 38-2-6 , nor did he explain how the statute served that interest or why it could not be equally well served by excluding private or proprietary information from the statute’s definition of “public records”, as in other provisions of the statute, the anti-solicitation provision was held unconstitutional. Rhode Island Ass'n of Realtors, Inc. v. Whitehouse, 51 F. Supp. 2d 107, 1999 U.S. Dist. LEXIS 8897 (D.R.I.), aff'd, 199 F.3d 26, 1999 U.S. App. LEXIS 32451 (1st Cir. 1999).

Where the defendant voluntarily gave his clothes to the police for purposes of a news conference, and never requested their return, this, coupled with his saying that the clothes were of no use to him, demonstrated his clear intent to abandon the clothing, thereby eliminating any reasonable expectation of privacy in the clothing and any violation of his fourth amendment rights. State v. Jimenez, 729 A.2d 693, 1999 R.I. LEXIS 105 (R.I. 1999).

Where the bulletproof vest that the defendant wore as part of his uniform on the day of an alleged shooting did not belong to him, but was borrowed from another officer, there was no reasonable expectation of privacy in that article of clothing. State v. Jimenez, 729 A.2d 693, 1999 R.I. LEXIS 105 (R.I. 1999).

There was no reasonable expectation of privacy preventing the seizure of a package since the defendant was occupying a vehicle for commercial purposes. State v. Pena Lora, 746 A.2d 113, 2000 R.I. LEXIS 18 (R.I. 2000).

The defendant abandoned his subjective expectation of privacy in his trash since he placed it in the bed of his pick-up truck knowing that, in accordance with an agreement, it would be taken from there and thrown into a communal dumpster. State v. Briggs, 756 A.2d 731, 2000 R.I. LEXIS 170 (R.I. 2000).

Where city employees sued a city and many officials under 42 U.S.C. § 1983, alleging violations of their rights under the Fourth Amendment and R.I. Const. art. I, § 6 when a call recording system was, allegedly unbeknownst to them, installed, municipal defendants’ argument that installation and use of the system could not have violated plaintiffs’ constitutional rights because it did not violate 18 U.S.C. § 2511 failed; § 2511 and the Fourth Amendment were not coextensive in their protections, and claims premised on one were not necessarily congruent with claims premised on the other. Moreover, the constitutional claims were not preempted by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. Walden v. City of Providence, 495 F. Supp. 2d 245, 2007 U.S. Dist. LEXIS 49194 (D.R.I. 2007).

Defendant, whom an officer saw masturbating while in a van parked near a school, had no expectation of privacy as to his behavior while occupying a motor vehicle on a public highway. State v. Pitts, 960 A.2d 240, 2008 R.I. LEXIS 116 (R.I. 2008).

Probation Revocation Hearing.

Evidence obtained as the result of an illegal search and seizure may be used at a probation revocation hearing. State v. Spratt, 120 R.I. 192 , 386 A.2d 1094, 1978 R.I. LEXIS 655 (1978).

Procedure.

Where exceptions raised below are not specifically related to issues appealed in brief or in oral argument, and where transcript in supplemental brief does not cure this procedural defect, no question of search and arrest without warrants may be raised on appeal, and even if they could be, such issues were not relevant on appeal where no evidence was seized, nor incriminating statements made by accused or anyone present at the time of arrest. State v. Wright, 105 R.I. 556 , 253 A.2d 593, 1969 R.I. LEXIS 787 (1969).

Where the issue of violation of the defendant’s rights under the Fourth and Fourteenth Amendments to the United States Constitution had been fully heard in his trial in state court, he was not entitled to another plenary hearing on such issues in a habeas corpus proceeding brought in federal court. Ouimette v. Howard, 339 F. Supp. 1166, 1972 U.S. Dist. LEXIS 14897 (D.R.I.), aff'd, 468 F.2d 1363, 1972 U.S. App. LEXIS 6891 (1st Cir. 1972).

Where defense counsel objected but failed to press for the suppression of illegally seized evidence, subsequent relief on the constitutional claim was barred by the waiver provision of Fed. R. Crim. P. 12(f), unless the defendant could show cause for the default and actual prejudice resulting from the admission of the evidence. United States v. Underwood, 440 F. Supp. 499, 1977 U.S. Dist. LEXIS 13136 (D.R.I. 1977).

Where the state has provided an opportunity for full and fair litigation of a fourth amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. Palmigiano v. Houle, 618 F.2d 877, 1980 U.S. App. LEXIS 18824 (1st Cir.), cert. denied, 449 U.S. 901, 101 S. Ct. 272, 66 L. Ed. 2d 132, 1980 U.S. LEXIS 3508 (1980).

A synthesis of the cases on standing indicates that standing may be established by proving a possessory or proprietary interest and a legimate expectation of privacy in the evidence seized or the property searched. State v. Cortellesso, 417 A.2d 299, 1980 R.I. LEXIS 1671 (R.I. 1980).

The defendants clearly have the burden of establishing their standing to challenge the admissibility of the seized evidence. State v. Cortellesso, 417 A.2d 299, 1980 R.I. LEXIS 1671 (R.I. 1980).

In light of United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980), standing to seek suppression of evidence based on search or seizure is now established by proof of a legimate expectation of privacy in either the evidence seized or the property searched. State v. Frazier, 421 A.2d 546, 1980 R.I. LEXIS 1857 (R.I. 1980).

Whatever application the theory of waiver may have within the confines of the criminal proceeding, including, of course, appellate and habeas review, the effect that a litigant’s conduct has in a subsequent and distinct litigation is governed by the twin doctrines of claim and issue preclusion, and where defendant did not litigate the validity of the search and seizure at his criminal trial, he is not foreclosed from raising that issue in a later civil forfeiture proceeding. United States v. One Parcel of Real Prop. Located in City of Woonsocket, 682 F. Supp. 694, 1988 U.S. Dist. LEXIS 2588 (D.R.I. 1988).

As defendant had agreed to a stipulation of facts upon which his weapon convictions were based after his suppression motion as to a pistol and his confession was denied by the trial court, defendant’s arguments on appeal regarding the alleged violation of his rights under U.S. Const. amend. IV were not preserved for review; whether the exclusionary rule applied to the pistol and confession did not matter because the trial court’s convictions of defendant were not based on that evidence. State v. Sengly Huy, 960 A.2d 550, 2008 R.I. LEXIS 124 (R.I. 2008).

When defendant claimed it was error to deny defendant’s motion to suppress defendant’s confession since the confession was the fruit of an illegal arrest, whether defendant’s arrest was based on probable cause, under U.S. Const. amend. IV and R.I. Const. art. I, § 6 was not preserved because defendant said the confession was obtained contrary to R.I. Const. art. I, §§ 10 and 13 and U.S. Const. amends. V and VI. State v. Chum, 54 A.3d 455, 2012 R.I. LEXIS 131 (R.I. 2012).

Defendant’s rights under U.S. Const. amend. IV were not violated because a neutral and detached superior court justice made a probable cause determination when the trial justice denied defendant’s motion to dismiss the criminal information. State v. Ceppi, 91 A.3d 320, 2014 R.I. LEXIS 70 (R.I. 2014).

Respondeat Superior.

An employer, whether a municipality or an officer of the government, is only responsible for the acts of a subordinate if the action that is alleged to be unlawful implements or executes a policy promulgated by the superior or the governing body of the entity against whom the complaint is made, and thus allegations that non-party members of the state police may have violated the plaintiff’s constitutional rights did not give rise to respondeat superior liability on the part of supervisors. Ensey v. Culhane, 727 A.2d 687, 1999 R.I. LEXIS 78 (R.I. 1999).

Search and Seizure.

Where search and seizure was made by state officers without a warrant, the fact that federal prohibition agents were independently watching the place searched and appeared after the search and seizure was complete, did not show that search and seizure was a federal one. Miller v. United States, 50 F.2d 505, 1931 U.S. App. LEXIS 4503 (3d Cir.), cert. denied, 284 U.S. 651, 52 S. Ct. 31, 76 L. Ed. 552, 1931 U.S. LEXIS 714 (1931).

Service of subpoena on citizen residing abroad and enforcement of appearance by contempt proceedings and by seizure of property does not involve an unlawful search and seizure. Blackmer v. United States, 284 U.S. 421, 52 S. Ct. 252, 76 L. Ed. 375, 1932 U.S. LEXIS 882 (1932).

In order to challenge a search and seizure, a defendant must have had a possessory or proprietary interest in either the evidence seized or the premises searched, or the charge against him must require as an element of proof possession of the evidence seized. United States v. D'Alo, 486 F. Supp. 945, 1979 U.S. Dist. LEXIS 10552 (D.R.I. 1979).

There was no seizure or search within the meaning of this amendment where police officer walked toward and spoke to the defendant, requesting him to unpocket his right hand, and the defendant, after initially refusing, in the end did unpocket his hand, which held a knife in violation of § 11-47-42 . State v. Johnson, 414 A.2d 477, 1980 R.I. LEXIS 1636 (R.I. 1980).

Whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person within the meaning of this amendment. State v. Belcourt, 425 A.2d 1224, 1981 R.I. LEXIS 1041 (R.I.), cert. denied, 454 U.S. 842, 102 S. Ct. 154, 70 L. Ed. 2d 127, 1981 U.S. LEXIS 3400 (1981).

In determining whether or not there has been an unlawful search and seizure, the threshold question is whether there has been a violation of a constitutionally justifiable expectation of privacy. State v. McKee, 442 A.2d 440, 1982 R.I. LEXIS 816 (R.I. 1982).

Police undercover investigations do not necessarily run counter to the Fourth Amendment. State v. McKee, 442 A.2d 440, 1982 R.I. LEXIS 816 (R.I. 1982).

In determining whether a field test for drugs constitutes a significant expansion of a private search so as to constitute a search, the trial justice should consider several factors: (1) the experience and expertise, if any, of the agent who first viewed the contents of the plastic bag after the private search; (2) the question of whether in light of the agent’s expertise he formed an opinion with a reasonable degree of certainty concerning the nature of the substance without a field test; (3) the extent of the intrusion required in order to perform the field test; and (4) the question of whether such intrusion impinged upon any further expectation of privacy that remained after the exposure of the contents by private persons. State v. Eiseman, 461 A.2d 369, 1983 R.I. LEXIS 961 (R.I. 1983).

— Administrative Proceedings.

The exclusionary rule is applicable in administrative proceedings when the police have searched premises known to be licensed for the sale of liquor and have turned over the fruits of the search to the administrative agency empowered to revoke the license. Board of License Comm'rs v. Pastore, 463 A.2d 161, 1983 R.I. LEXIS 1019 (R.I. 1983), cert. dismissed, 469 U.S. 238, 105 S. Ct. 685, 83 L. Ed. 2d 618, 1985 U.S. LEXIS 35 (1985).

A board of liquor-license commissioners may not use the fruits of an illegal search in order to impose sanctions upon the persons whose constitutional rights have been violated. Board of License Comm'rs v. Pastore, 463 A.2d 161, 1983 R.I. LEXIS 1019 (R.I. 1983), cert. dismissed, 469 U.S. 238, 105 S. Ct. 685, 83 L. Ed. 2d 618, 1985 U.S. LEXIS 35 (1985).

A search conducted without a warrant, without consent, and absent exigent circumstances is unreasonable per se and violates the fourth amendment. A similar standard applies in administrative or summary forfeiture proceedings. If the search and seizure violates the fourth amendment, the forfeiture itself would be tainted by the illegality. Sarit v. Drug Enforcement Admin., 759 F. Supp. 63, 1991 U.S. Dist. LEXIS 3103 (D.R.I. 1991).

— Breath and Blood Tests.

The administration of a breathalyzer test does not amount to an unreasonable search and seizure under the federal or state consitutions. State v. Roberts, 420 A.2d 837, 1980 R.I. LEXIS 1836 (R.I. 1980).

There is no question that a court may, upon a showing of probable cause, issue an order authorizing the taking of a blood sample from a person who has been charged with or suspected of a criminal offense, in respect to which the blood sample is determined to be relevant. State v. Souza, 425 A.2d 893, 1981 R.I. LEXIS 1037 (R.I.), cert. denied, 454 U.S. 840, 102 S. Ct. 148, 70 L. Ed. 2d 123, 1981 U.S. LEXIS 3372 (1981).

Although the compulsory administration of a blood test does constitute a search within the meaning of the fourth amendment, it is an “appropriate incident” to an arrest for driving under the influence, and as long as it is conducted in a reasonable fashion, it is justified absent a warrant. In re Kean, 520 A.2d 1271, 1987 R.I. LEXIS 410 (R.I. 1987).

— Brief Detention.

Under totality-of-the-circumstances test, it was appropriate for officer to detain defendants for brief time necessary to conduct national crime information center warrant check, and such check did not constitute an unreasonable intrusion on defendants’ fourth amendment rights. State v. DeMasi, 448 A.2d 1210, 1982 R.I. LEXIS 976 (R.I. 1982).

Officers did not arrest defendant outside the officers’ jurisdiction because the officers’ interaction with defendant outside their jurisdiction did not constitute an arrest, as, inter alia, defendant’s freedom of movement was restricted only for a couple of minutes while defendant was in the back of a police cruiser, which defendant voluntarily entered and was let out of upon arrival at the scene of an accident in the officers’ jurisdiction. State ex rel. Town of Little Compton v. Simmons, 87 A.3d 412, 2014 R.I. LEXIS 32 (R.I. 2014).

Officers did not arrest defendant outside the officers’ jurisdiction because the officers’ interaction with defendant outside their jurisdiction did not constitute an arrest, as, inter alia, a reasonable person under like circumstances would have felt free to leave when the officers asked defendant to accompany the officers back to the officers’ jurisdiction. State ex rel. Town of Little Compton v. Simmons, 87 A.3d 412, 2014 R.I. LEXIS 32 (R.I. 2014).

Officers did not arrest defendant outside the officers’ jurisdiction because the officers’ interaction with defendant outside their jurisdiction did not constitute an arrest, as, inter alia, officers did not use force when asking defendant to accompany the officers back to the officers’ jurisdiction, as (1) a pat-down for officer safety was not such force, (2) defendant was not handcuffed, (3) no weapons were displayed, and (4) defendant was not surrounded by a large number of uniformed officers. State ex rel. Town of Little Compton v. Simmons, 87 A.3d 412, 2014 R.I. LEXIS 32 (R.I. 2014).

— Consent.

Consent to enter one’s home to make a routine felony arrest cannot be deemed free or voluntary unless the person said to be consenting is aware of the purpose for which the police seek to enter. State v. Bailey, 417 A.2d 915, 1980 R.I. LEXIS 1720 (R.I. 1980).

In a situation in which two persons, such as a husband and wife, have equal rights to the use or occupation of certain premises, either may give consent to a search, and the evidence thus disclosed can be used against either of them. State v. Farrell, 443 A.2d 438, 1982 R.I. LEXIS 826 (R.I. 1982).

A landlord ordinarily cannot validly consent to the search of his tenant’s apartment, nor can a night clerk’s consent validate a warrantless search of a hotel guest’s room. State v. Farrell, 443 A.2d 438, 1982 R.I. LEXIS 826 (R.I. 1982).

One who entrusts his automobile to another for the purposes of repair, or periodic inspection as required by law, does not confer the kind of mutual use or control which would empower that person to consent to a warrantless search and seizure of the automobile. State v. Farrell, 443 A.2d 438, 1982 R.I. LEXIS 826 (R.I. 1982).

In deciding whether consent to a search is tainted by an initial illegal entry into a defendant’s home by the police, the court is to consider: (1) the time interval between the initial illegal entry and the consent to search; (2) the presence of intervening circumstances occurring during this period; and (3) the circumstances surrounding, and the nature of, the initial misconduct. State v. Beaumier, 482 A.2d 1199, 1984 R.I. LEXIS 624 (R.I. 1984).

Where murder defendant had issued both an express and a clearly implied invitation to the police to examine the entire house to determine whether a burglary had been an attendant circumstance of her husband’s death, the fact that the police later determined that the “burglary” had been staged did not vitiate the invitation or the motivation of defendant for extending such an invitation. State v. Wilshire, 509 A.2d 444, 1986 R.I. LEXIS 470 (R.I. 1986), cert. denied, 479 U.S. 1037, 107 S. Ct. 891, 93 L. Ed. 2d 843, 1987 U.S. LEXIS 146 (1987).

Hispanic bus passenger’s consent to a search of a bag was not voluntarily given, where his unfamiliarity with the English language made it unlikely that he understood what police officers said to him upon his arrival at a bus terminal. United States v. Gaviria, 775 F. Supp. 495, 1991 U.S. Dist. LEXIS 15345 (D.R.I. 1991).

There is no violation of the Fourth Amendment when a police officer reasonably relies on the consent given by one who has actual or apparent authority. Gosselin v. McGillen, 847 F. Supp. 248, 1993 U.S. Dist. LEXIS 20218 (D.R.I. 1993).

The court did not err in holding that the consent of the defendant’s wife to search a vehicle registered in her name was given freely and voluntarily where the evidence in the record showed that she freely signed the consent form without any force, coercion, or promises by the police and she admitted in testimony that no one forced her to make a statement or to sign the consent forms. Her testimony that she signed the forms because she was frightened that the police would detain her further did not invalidate her consent given that she conceded that the police informed her that nothing would happen to her so long as she told the truth. State v. Martinez, 624 A.2d 291, 1993 R.I. LEXIS 122 (R.I. 1993).

The trial court’s finding that the defendant had freely and voluntarily consented to the entry into the defendant’s hotel room by the police and that the defendant then pointed out the robbery loot that was in plain view on top of the coffee table a short distance from the doorway leading into the room makes the defendant’s warrantless entry and search claim without merit. State v. Walker, 667 A.2d 1242, 1995 R.I. LEXIS 276 (R.I. 1995).

Although the seized rope was found during a private search by a family member, and thus outside the scope of the Fourth Amendment, the homeowner’s silence when the family member brought the police detective into the home to show him the rope while the homeowner was present indicated her consent to a search and seizure of the rope. State v. Barkmeyer, 949 A.2d 984, 2008 R.I. LEXIS 73 (R.I.), cert. denied, 555 U.S. 1071, 129 S. Ct. 740, 172 L. Ed. 2d 729, 2008 U.S. LEXIS 9079 (2008).

Where a detective had actual knowledge that defendant’s father-in-law did not live at a home that was searched and merely was a visitor, the father-in-law’s apparent authority to consent to the search was unavailing. State v. Barkmeyer, 949 A.2d 984, 2008 R.I. LEXIS 73 (R.I.), cert. denied, 555 U.S. 1071, 129 S. Ct. 740, 172 L. Ed. 2d 729, 2008 U.S. LEXIS 9079 (2008).

Search of the apartment of defendant’s girlfriend was proper under the Fourth Amendment, U.S. Const. IV, and R.I. Const. art. I, § 6 as: (1) an officer viewed several items of potential evidentiary value in the girlfriend’s bedroom while the officer was in the apartment under exigent circumstances; (2) the girlfriend voluntarily consented; (3) the girlfriend’s rationale for providing consent did not preclude a determination that her consent was given voluntarily; and (4) the girlfriend was strong-willed, desired to cooperate with the police, and was given a clear option. State v. Shelton, 990 A.2d 191, 2010 R.I. LEXIS 35 (R.I. 2010).

There was insufficient evidence to show that defendant’s mother consented to the entry of police into her home where it was not plausible to contend that a woman who was faced with multiple officers with their weapons drawn, one of whom was holding a tactical shield, at 7 a.m. was totally communicating a free and voluntary decision to consent to an entry into her home when she, at most, glanced up the stairs and/or gestured toward the stairs in response to the officer’s question as to the location of her son. State v. Gonzalez, 136 A.3d 1131, 2016 R.I. LEXIS 43 (R.I. 2016).

There was insufficient evidence to show that defendant’s mother’s signing of the consent to search form for their home was free and voluntary where numerous armed officers had entered her home at 7 a.m. looking for her son, whom they arrested, and there were still several officers in the home when she was asked to provide her written consent. State v. Gonzalez, 136 A.3d 1131, 2016 R.I. LEXIS 43 (R.I. 2016).

Trial court erred by finding that defendant’s consent to the search of his bedroom after his illegal warrantless arrest was voluntary where he was still sitting in the back of the police cruiser immediately after having experienced the illegal entry into his residence by several police officers who immediately arrested him early on that Sunday morning, and there were no intervening circumstances that would lead to the determination that defendant’s consent was sufficiently attenuated from his illegal arrest so as to be untainted by the preceding illegal police activity. State v. Gonzalez, 136 A.3d 1131, 2016 R.I. LEXIS 43 (R.I. 2016).

— Drug Detection Dogs.

The canine sniff of the exterior of a vehicle which is legitimately within the custody of the police is not a search within the meaning of the fourth amendment, and subjecting the exterior of such a vehicle to the olfactory genius of a drug detection dog does not infringe upon the vehicle owner’s fourth amendment rights. United States v. Rodriguez-Morales, 929 F.2d 780, 1991 U.S. App. LEXIS 4854 (1st Cir. 1991), cert. denied, 502 U.S. 1030, 112 S. Ct. 868, 116 L. Ed. 2d 774, 1992 U.S. LEXIS 296 (1992).

— Emergency.

Warrantless entries into private premises for health and safety reasons are constitutional where exigent circumstances justify the government intrusion regardless of any reasonable expectations of privacy, and where the object of the search is to gather evidence of criminal activity. Mann v. Cannon, 731 F.2d 54, 1984 U.S. App. LEXIS 24048 (1st Cir. 1984).

Although not determinative of whether an emergency existed, a lapse-of-time between the searching officers’ gaining knowledge of an emergency and conducting a search is relevant as to whether there was a legitimate need for the performance of the search. State v. Beaumier, 480 A.2d 1367, 1984 R.I. LEXIS 589 (R.I. 1984), overruled, State v. Rios, 702 A.2d 889, 1997 R.I. LEXIS 295 (R.I. 1997).

Police had a right to respond to the apparently exigent circumstances of a homicide-burglary by searching the entire house for possible intruders and, in the course of such a search, to examine and seize evidence that was in plain view. State v. Wilshire, 509 A.2d 444, 1986 R.I. LEXIS 470 (R.I. 1986), cert. denied, 479 U.S. 1037, 107 S. Ct. 891, 93 L. Ed. 2d 843, 1987 U.S. LEXIS 146 (1987).

A firefighter does not need a warrant to enter a building to fight a fire. The law presumes that the warrantless entry of a burning building is reasonable and therefore also permits firefighters to seize evidence of arson in plain view as well as investigate the cause and origin of the fire. State v. Moretti, 521 A.2d 1003, 1987 R.I. LEXIS 422 (R.I. 1987).

Officials need no warrant to remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished. If the warrantless entry to put out the fire and determine its cause is constitutional, the warrantless seizure of evidence while inspecting the premises for these purposes also is constitutional. State v. Moretti, 521 A.2d 1003, 1987 R.I. LEXIS 422 (R.I. 1987).

Exigent circumstances justified a warrantless entry into the apartment of the defendant’s girlfriend and the warrantless arrest of the defendant therein, where the police had information from a credible eyewitness that the defendant had shot his brother and the warrantless intrusion was necessary to preserve life or avoid serious injury. State v. Gonsalves, 553 A.2d 1073, 1989 R.I. LEXIS 18 (R.I. 1989).

Although the police officer testified that he entered the defendant’s home in order to determine if there were any other victims of the shooting, since the evidence clearly showed that there was only one shot fired and that bullet remained lodged in the defendant, and in fact the shooting occurred 200 yards away from the home, the emergency intrusion into the defendant’s home was unreasonable. United States v. Morales, 913 F. Supp. 132, 1996 U.S. Dist. LEXIS 1038 (D.R.I. 1996).

When it was reported to police that defendant shot defendant’s dog, police did not violate the Fourth Amendment by conducting a sweep of defendant’s property without a search warrant because (1) police were allowed to determine there was no injured animal or person in need of immediate care or protection from threat of harm, and (2) a rifle discovered in the course of the sweep was in plain view. State v. Goulet, 21 A.3d 302, 2011 R.I. LEXIS 80 (R.I. 2011).

Trial court properly refused to suppress a statement defendant made to police after his warrantless arrest, because the officer had received information about a violent confrontation between defendant and his wife after she learned he had molested her daughter, and the officer’s warrantless entry into home was thus justified by exigent circumstances. State v. Morin, 68 A.3d 61, 2013 R.I. LEXIS 105 (R.I. 2013).

— Evidence.

State-seized evidence is admissible in federal courts if it is obtained in accordance with federal requirements even though it is obtained by state officers in violation of state law. United States v. One Parcel of Real Prop. Located in City of Woonsocket, 696 F. Supp. 783, 1988 U.S. Dist. LEXIS 11263 (D.R.I. 1988), aff'd, 873 F.2d 7, 1989 U.S. App. LEXIS 5344 (1st Cir. 1989).

Where agents conducted an initial warrantless sweep of the apartment without observing any incriminating evidence but subsequently searched with a warrant and found cocaine, the cocaine was not suppressible since it was legally procured under a valid warrant. United States v. Almonte, 952 F.2d 20, 1991 U.S. App. LEXIS 30156 (1st Cir. 1991), cert. denied, 503 U.S. 1010, 112 S. Ct. 1776, 118 L. Ed. 2d 434, 1992 U.S. LEXIS 2630 (1992).

It is the state’s prerogative to use defendant’s statements to police — even though they were obtained in violation of his Fourth Amendment rights — as a means to impeach his credibility, where the defendant testifies to proclaim his innocence by asserting that the victim shot himself accidentally. State v. Mattatall, 586 A.2d 1061, 1991 R.I. LEXIS 23 (R.I. 1991).

— — Civil Proceeding.

Evidence obtained by government in unlawful search and seizure was not admissible in civil proceeding instituted by government. Rogers v. United States, 97 F.2d 691, 1938 U.S. App. LEXIS 4758 (1st Cir. 1938).

Evidence derived from a search in violation of the fourth amendment must be excluded from civil forfeiture proceedings. In other words, tainted evidence may not support the necessary probable cause. United States v. One Parcel of Real Prop. Located in City of Woonsocket, 682 F. Supp. 694, 1988 U.S. Dist. LEXIS 2588 (D.R.I. 1988).

— — Documents.

Government could make use of documents produced before grand jury upon subpeona although it was found that grand jury was illegally constituted. United States v. Wallace & Tiernan Co., 336 U.S. 793, 69 S. Ct. 824, 93 L. Ed. 1042, 1949 U.S. LEXIS 3038 (1949).

— Exclusionary Rule.

Where evidence and confession of defendant were fruits of an unlawful arrest such evidence on timely motion by defendant should have been suppressed since evidence obtained in a manner not consistent with the provisions of the fourth amendment to the federal constitution made applicable to the states by the fourteenth amendment is not admissible. State v. Dufour, 99 R.I. 120 , 206 A.2d 82, 1965 R.I. LEXIS 405 (1965).

The exclusionary rule prohibits the use, at trial, of evidence obtained by searches and seizures in violation of a person’s fourth amendment rights. State v. Burns, 431 A.2d 1199, 1981 R.I. LEXIS 1179 (R.I. 1981).

The exclusionary rule forbids the use of indirect as well as direct products of an illegal arrest or search. State v. Burns, 431 A.2d 1199, 1981 R.I. LEXIS 1179 (R.I. 1981).

The purpose of the exclusionary rule is to deter police misconduct by eliminating the incentive for police officers to disregard constitutional requirements on the chance that they may turn up evidence which would incriminate a defendant. United States v. Aiudi, 835 F.2d 943, 1987 U.S. App. LEXIS 16831 (1st Cir. 1987), cert. denied, 485 U.S. 978, 108 S. Ct. 1273, 99 L. Ed. 2d 484, 1988 U.S. LEXIS 1522 (1988).

Evidence did not warrant exclusion of statements by the defendant. See State v. Mead, 544 A.2d 1146, 1988 R.I. LEXIS 108 (R.I. 1988).

Because the exclusionary rule in respect to Fourth Amendment violations is based upon the deterrence of illegal police or prosecutorial actions, it is not triggered by the actions of private persons however egregious they may be. State v. Pailon, 590 A.2d 858, 1991 R.I. LEXIS 74 (R.I. 1991).

In the context of both the Fourth and Fifth Amendments, evidence derived from sources separate from a constitutional violation need not be suppressed under the exclusionary rule. The question as to whether the inevitable discovery exception is available arises after there has been a determination that an accused’s constitutional rights have been violated; when the evidence sought to be suppressed would inevitably have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible. State v. Barkmeyer, 949 A.2d 984, 2008 R.I. LEXIS 73 (R.I.), cert. denied, 555 U.S. 1071, 129 S. Ct. 740, 172 L. Ed. 2d 729, 2008 U.S. LEXIS 9079 (2008).

Where defendant’s father-in-law previously discovered certain items in defendant’s car and personally presented those items to a police detective, a rope discovered in defendant’s closet by the father-in-law and seized by the police could have been admissible under the inevitable-discovery exception to the exclusionary rule. State v. Barkmeyer, 949 A.2d 984, 2008 R.I. LEXIS 73 (R.I.), cert. denied, 555 U.S. 1071, 129 S. Ct. 740, 172 L. Ed. 2d 729, 2008 U.S. LEXIS 9079 (2008).

Exclusionary rule did not apply to defendant’s probation violation hearing. State v. Ditren, 126 A.3d 414, 2015 R.I. LEXIS 101 (R.I. 2015).

Miranda violations do not taint the admissibility of physical evidence that is the product of an unwarned and inadmissible statement, so long as that statement is voluntary. State v. Beauregard, 198 A.3d 1, 2018 R.I. LEXIS 130 (R.I. 2018).

— — Bail Revocation Hearings.

The exclusionary rule does not apply to bail-revocation hearings. State v. Delaurier, 488 A.2d 688, 1985 R.I. LEXIS 446 (R.I. 1985).

— — Statements.

The exclusionary rule mandates that statements obtained by exploitation of an illegal arrest are fruits of the poisonous tree and are to be excluded at trial. State v. Burns, 431 A.2d 1199, 1981 R.I. LEXIS 1179 (R.I. 1981).

Statements obtained after an illegal arrest or seizure may be admissible if the state gained knowledge of the statements from an independent source. State v. Burns, 431 A.2d 1199, 1981 R.I. LEXIS 1179 (R.I. 1981).

If the state can show that the connection between the illegal police conduct and the discovery of the challenged evidence has become so attenuated as to dissipate the taint, then the evidence may be admissible. State v. Burns, 431 A.2d 1199, 1981 R.I. LEXIS 1179 (R.I. 1981); State v. Jennings, 461 A.2d 361, 1983 R.I. LEXIS 957 (R.I. 1983).

The giving of Miranda warnings alone to an accused does not per se make the act sufficiently a product of free will to break, for fourth amendment purposes, the causal connection between any illegality and the confession. State v. Burns, 431 A.2d 1199, 1981 R.I. LEXIS 1179 (R.I. 1981).

In order to determine on the facts whether or not statements made by defendent while in detention following an illegal arrest were obtained by exploitation of the illegal arrest, the Supreme Court must consider (1) the temporal proximity of the arrest and the confession, (2) the presence of intervening circumstances, and (3) particularly the purpose and flagrancy of the official misconduct. State v. Burns, 431 A.2d 1199, 1981 R.I. LEXIS 1179 (R.I. 1981); State v. Jennings, 461 A.2d 361, 1983 R.I. LEXIS 957 (R.I. 1983).

Where defendant’s confession was obtained while defendant was being detained as the result of an illegal arrest, the state not only had the initial burden of showing that defendant’s statements met the voluntariness standards required by the Fifth Amendment but also has the burden of demonstrating that the causal connection between the statements and the illegal arrest was broken so as to dispel the primary taint of the illegal seizure. State v. Burns, 431 A.2d 1199, 1981 R.I. LEXIS 1179 (R.I. 1981).

Where defendant made his statements some six to eight hours after he was taken into custody following his illegal arrest but was never allowed outside the interrogation area the whole time he was being detained, there was no intervening event of significance sufficient to break the connection between the illegal arrest and the statements made. State v. Burns, 431 A.2d 1199, 1981 R.I. LEXIS 1179 (R.I. 1981).

A finding that a confession may satisfy the voluntariness standards of the Fifth Amendment does not necessarily mean that there is no Fourth Amendment violation. State v. Jennings, 461 A.2d 361, 1983 R.I. LEXIS 957 (R.I. 1983).

Where the defendant’s sudden willingness to incriminate himself was the result of his being confronted with illegally seized evidence indicating his guilt, the confession was obtained by the exploitation of the illegal search and seizure and was therefore inadmissible. State v. Jennings, 461 A.2d 361, 1983 R.I. LEXIS 957 (R.I. 1983).

Where the Supreme Court must conclude as a matter of fact that defendent was brought involuntarily to the police station for interrogation even though the police did not suspect him and had no probable cause to believe that he was guilty of a crime, the trial justice’s finding that his statements were involuntary for Fifth Amendment purposes was insufficient to overcome the Fourth Amendment violation. State v. Mattatall, 525 A.2d 49, 1987 R.I. LEXIS 478 (R.I. 1987).

The state had a right by cross-examination to rebut the defendant’s self-serving statements even though they were obtained in violation of his fourth amendment rights — as a means to impeach his credibility. State v. Mattatall, 603 A.2d 1098, 1992 R.I. LEXIS 32 (R.I. 1991), cert. denied, 506 U.S. 838, 113 S. Ct. 117, 121 L. Ed. 2d 74, 1992 U.S. LEXIS 5879 (1992).

There were ample grounds to support the defendant’s arrest for murder at the time he was handcuffed, without reference to the vial of crack cocaine found immediately after the arrest. Therefore, the motion justice committed no error in declining to suppress the defendant’s statement made at the police station hours subsequent to his arrest. State v. Ellis, 619 A.2d 418, 1993 R.I. LEXIS 15 (R.I. 1993).

Separate hearing was not required to determine whether probationer’s statements admitting criminal conduct were voluntary and admissible; the exclusionary rule had no application in a revocation proceeding, since it was civil in nature, and there was no evidence indicating the statements were anything but voluntary. State v. Campbell, 833 A.2d 1228, 2003 R.I. LEXIS 196 (R.I. 2003).

Because a sister’s description of what her daughter told her satisfied the requirements of an excited utterance under R.I. R. Evid. 803 (2), and because a juvenile knowingly and voluntarily waived the juvenile’s Miranda rights before giving a full and detailed statement of the events, the juvenile’s motion to suppress was properly denied, the evidence was properly admitted, and the juvenile was properly adjudicated a wayward child. In re Frances G., 30 A.3d 630, 2011 R.I. LEXIS 132 (R.I. 2011).

Where the victim testified that defendant handcuffed and assaulted her, the admission of his statement to an officer that he owned handcuffs did not violate his U.S. Const. amend. IV rights, because the officer did not illegally find and seize the handcuffs until after defendant made the statement. State v. Harrison, 66 A.3d 432, 2013 R.I. LEXIS 83 (R.I. 2013).

— Incident to Arrest.

General search without search warrant of accused’s office following proper arrest there was lawful incident to such arrest, even though officers could have safely obtained a warrant. United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653, 1950 U.S. LEXIS 2298 (1950), overruled in part, Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685, 1969 U.S. LEXIS 1166 (1969).

Where a subject was arrested for hitchhiking, discovery of marijuana in the subject’s inner clothing was beyond the scope of a search incident to the valid arrest. State v. Soroka, 112 R.I. 392 , 311 A.2d 45, 1973 R.I. LEXIS 997 (1973).

Evidence obtained as a result of a search incident to a lawful arrest is legally competent and therefore admissible to support the conviction of a defendant. In order for such evidence to be competent, however, it must be the product of a lawful arrest. If the arrest is unlawful, the evidence is inadmissible. State v. Levesque, 121 R.I. 706 , 402 A.2d 1182, 1979 R.I. LEXIS 2053 (1979).

Once an arrestee is under police control, the permissible scope of a search incident to an arrest narrows. State v. Robalewski, 418 A.2d 817, 1980 R.I. LEXIS 1717 (R.I. 1980).

The right of the police to search areas into which the arrestee may be expected to move, as well as the search of articles to be handed to the arrestee, is well settled when the movement or other acts are performed at the request of the arrestee. In that situation a limited search for weapons is reasonable. State v. Robalewski, 418 A.2d 817, 1980 R.I. LEXIS 1717 (R.I. 1980).

Although many courts have recognized the right of the police to conduct a quick and cursory check of a residence when they have reasonable grounds to believe there are other persons present who might present a security risk, the purpose of this type of search is to check for persons, not things; and the search is justified only when it is necessary to allow the police to ascertain the presence of anyone who might threaten their safety or destroy evidence. State v. Robalewski, 418 A.2d 817, 1980 R.I. LEXIS 1717 (R.I. 1980).

A full custodial arrest for a misdemeanor gives rise to the right of the arresting officer to make a full search of the person at the police station as well as at the scene of such arrest. State v. Beaucage, 424 A.2d 642, 1981 R.I. LEXIS 1014 (R.I. 1981).

As soon as the police had satisfied themselves that there were no other persons involved in the drug dealing for which defendant was arrested in the room, there was no longer a basis upon which to support any further right to search the premises or its contents without a warrant. State v. Alexander, 433 A.2d 965, 1981 R.I. LEXIS 1253 (R.I. 1981).

Even in the case of an entry into the scene of a homicide, once the premises are secured and it is determined that no further danger exists, the exigency that gave rise to the limited right of entry has ceased to exist and the warrant requirement is reasserted. State v. Alexander, 433 A.2d 965, 1981 R.I. LEXIS 1253 (R.I. 1981).

Evidence was sufficient to establish probable cause for an arrest. State v. Beaucage, 424 A.2d 642, 1981 R.I. LEXIS 1014 (R.I. 1981); In re John C., 425 A.2d 536, 1981 R.I. LEXIS 1040 (R.I.), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005, 1981 U.S. LEXIS 2767 (1981).

A determination of the legality of the arrest is an essential predicate for the admission of any evidence that might be a fruit of such detention. State v. Adams, 481 A.2d 718, 1984 R.I. LEXIS 601 (R.I. 1984).

Where a constitutional violation is claimed resulting from a drug seizure following a patdown search for weapons after a traffic stop, the court should suppress the evidence if the officer negated the presence of an obvious weapon on the defendant’s person before he determined that the felt object was contraband, but not if he determined it was contraband before or simultaneous with negating the presence of a weapon. State v. Black, 721 A.2d 826, 1998 R.I. LEXIS 308 (R.I. 1998).

The determinative factor in examining whether a patdown search resulting in the seizure of contraband was constitutional should not be the subjective beliefs or hunches of the police officer involved, but whether and to what degree a reasonable officer under the circumstances would find it necessary to continue the patdown search to negate the presence of an obvious weapon. State v. Black, 721 A.2d 826, 1998 R.I. LEXIS 308 (R.I. 1998).

A trooper possessed sufficient reasonable suspicion about the defendant’s action to subject him to a weapons patdown search where the defendant made furtive and frantic movements towards his groin, continuously looked back at the trooper, and had an unusually high degree of overall nervousness. State v. Black, 721 A.2d 826, 1998 R.I. LEXIS 308 (R.I. 1998).

Where the trial judge failed to make precise factual findings as to the immediate and obvious nature of contraband detected during a patdown search, or as to the need to continue the search to negate the presence of an obvious weapon, a remand for further findings was required. State v. Black, 721 A.2d 826, 1998 R.I. LEXIS 308 (R.I. 1998).

Where the trial court refused to accept as credible a police officer’s testimony that he believed the two inch aluminum foil wrapped packet he felt and later seized during a patdown search was a gun, that finding on the part of the court vitiated any then valid reason for the officer to have reached in and pulled out the object, as well as the required elements of immediate apparent identity as contraband, and the suppression of the evidence was affirmed. State v. Saldarriaga, 721 A.2d 841, 1998 R.I. LEXIS 314 (R.I. 1998).

— Investigatory Stop or Seizure.

Where individuals were observed late at night throwing rocks on construction site that had been the scene of recent thefts and acts of vandalism, police officers were justified in stopping them and inquiring as to their identity and actions. State v. Ramsdell, 109 R.I. 320 , 285 A.2d 399, 1971 R.I. LEXIS 1061 (1971).

A police officer may conduct a properly limited investigatory stop provided he has a reasonable suspicion based on specific and articulable facts that the person detained is engaged in criminal activity. State v. Halstead, 414 A.2d 1138, 1980 R.I. LEXIS 1643 (R.I. 1980).

A “reasonable suspicion” involves a pragmatic analysis from the vantage point of a prudent, reasonable police officer in light of the facts known to him at the time of a detention. State v. Halstead, 414 A.2d 1138, 1980 R.I. LEXIS 1643 (R.I. 1980).

Investigatory seizures, such as the taking of a person to police headquarters, have been held to be arrests for constitutional purposes and consequently require for their legality the existence of probable cause. State v. Frazier, 421 A.2d 546, 1980 R.I. LEXIS 1857 (R.I. 1980).

Police do not need probable cause to stop a suspect for questioning if unusual or suspicious activity leads an officer to conclude, in light of his experience, that the individual may be involved in criminal activity. State v. Bennett, 430 A.2d 424, 1981 R.I. LEXIS 1161 (R.I. 1981).

A two-pronged test has been articulated by the United States Supreme Court for determining whether an investigatory stop is permissible. First, the assessment of the situation must be based upon all the circumstances, including objective observations, information from police reports, and consideration of the patterns of operation of certain kinds of lawbreakers. From this data, a trained officer may draw inferences based upon his knowledge and experience. Second, this process must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. In re John N., 463 A.2d 174, 1983 R.I. LEXIS 1024 (R.I. 1983).

Police officer was justified in stopping vehicle for investigatory search after observing driver wearing cowboy hat entering car where officer had been informed that the car owner was believed to be harboring a fugitive noted for wearing cowboy hats. In re John N., 463 A.2d 174, 1983 R.I. LEXIS 1024 (R.I. 1983).

Search of passenger in vehicle was unconstitutional where, although officer had justifiable suspicion for stopping driver, officer had no reason to believe passenger was engaged in conduct for which officer stopped vehicle. In re John N., 463 A.2d 174, 1983 R.I. LEXIS 1024 (R.I. 1983).

An investigatory stop of the defendant on the basis of a tip to police was not justified, where no evidence was presented at the trial concerning the source or nature of the tip. State v. Farman, 600 A.2d 1003, 1991 R.I. LEXIS 196 (R.I. 1991).

A police officer had the quantum of suspicion necessary to conduct an investigatory stop when a series of noncriminal acts on the part of the suspect, when observed as a whole by a trained and experienced officer aware of other relevant information, allowed that officer to draw inferences and make deductions sufficient to create a reasonable suspicion of illegal activity. State v. Ortiz, 609 A.2d 921, 1992 R.I. LEXIS 99 (R.I. 1992).

Passenger in suspect’s car was not constructively seized by a high speed police chase in which the suspect lost control of the car and crashed, since the police did not intend to restrict the passenger’s movement in any manner. Medeiros v. Town of South Kingstown, 821 F. Supp. 823, 1993 U.S. Dist. LEXIS 7014 (D.R.I. 1993).

Since police officers were informed at roll call of drug activity occurring at a certain address, since they later observed the defendant and another person leaving that location at two o’clock in the morning, since the defendant’s companion dropped two bags of cocaine before they could be asked what they were doing in the area, and since the defendant attempted to leave the scene while his companion was being arrested, a trained and experienced law enforcement officer had reasonable suspicion of criminal activity, justifying an investigatory stop. State v. Abdullah, 730 A.2d 1074, 1999 R.I. LEXIS 140 (R.I. 1999).

Defendant’s motion to suppress was properly denied because the investigating stop and subsequent search of the van conducted by the police before defendant was arrested were constitutionally proper and justified; the officers had more than an articulable suspicion that defendant had traveled to another city to purchase drugs, and an anonymous tip was sufficiently detailed, and thereafter corroborated, to warrant an experienced detective to become reasonably suspicious of defendant’s behavior. State v. Keohane, 814 A.2d 327, 2003 R.I. LEXIS 18 (R.I. 2003).

Defendant was properly detained in the back seat of a police car for an hour during a search of the vehicle in which defendant was a passenger because the veteran police officers had an articulable basis for suspecting criminal activity during a traffic stop, based upon defendant’s furtive movements and nervousness, and the isolation and detention of defendant was reasonable under the circumstances while the officers continued their investigation. State v. Ditren, 126 A.3d 414, 2015 R.I. LEXIS 101 (R.I. 2015).

— — Stop and Frisk.

In the absence of probable cause, “stop and frisks” are proper only where the officer is able to point to specific and articulable facts rather than rely on mere hunches to support the warrantless intrusion. State v. Belcourt, 425 A.2d 1224, 1981 R.I. LEXIS 1041 (R.I.), cert. denied, 454 U.S. 842, 102 S. Ct. 154, 70 L. Ed. 2d 127, 1981 U.S. LEXIS 3400 (1981).

The only narrow exception to the requirement that fourth amendment seizures of persons must be based on probable cause involves the situation in which the officer makes a brief, on-the-spot stop on the street and conducts a frisk for weapons. State v. Burns, 431 A.2d 1199, 1981 R.I. LEXIS 1179 (R.I. 1981).

Because of the inherent dangerousness of the situation, police officers who are called upon to execute a warranted search for narcotics within a private residence have a lawful right to conduct a limited pat-down search for weapons upon any occupants present while the search is in progress. State v. Alamont, 577 A.2d 665, 1990 R.I. LEXIS 140 (R.I. 1990).

The trial justice did not err in permitting the testimony of a police officer about his seizure of a gun from the defendant’s waistband since, at the time the officer approached the defendant, he had more than probable cause not only to detain but also to arrest the defendant and, incidental to that arrest, to search him to determine whether he was armed. State v. Gomes, 764 A.2d 125, 2001 R.I. LEXIS 4 (R.I. 2001).

Officers, who legitimately stopped vehicle based on large objects hanging from the vehicle’s rearview mirror and obstructing the driver’s view, had reasonable suspicion to conduct a pat-down for weapons after they observed furtive and suspicious behavior and after the occupants repeatedly ignored orders to keep their hands visible. State v. Quinlan, 921 A.2d 96, 2007 R.I. LEXIS 86 (R.I. 2007).

Officers’ observations of a van left running in a high-crime neighborhood, the missing license plates, defendant reaching down and stuffing something into her jacket, and defendant’s nervousness, paired with a pragmatic analysis of the facts known at the time, provided sufficient reasonable suspicion for the officers to suspect defendant of possible criminal conduct and to perform a Terry-type frisk for weapons to ensure officer safety. State v. Taveras, 39 A.3d 638, 2012 R.I. LEXIS 28 (R.I.), cert. denied, 568 U.S. 826, 133 S. Ct. 249, 184 L. Ed. 2d 44, 2012 U.S. LEXIS 6952 (2012).

— “Knock and Announce” Requirement.

Sole fact that search was for easily destructible narcotics did not justify unannounced entry in violation of common-law “knock and announce” where defendant had no criminal record, officer was not refused admittance, no drugs were destroyed and no other evidence justified unannounced entry in violation of the Fourth Amendment as applied by the Fourteenth Amendment. State v. Carufel, 112 R.I. 664 , 314 A.2d 144, 1974 R.I. LEXIS 1485 (1974).

An officer must first knock and announce his identity and purpose and wait a reasonable period of time before breaking into and entering premises to execute an arrest warrant. State v. Sundel, 121 R.I. 638 , 402 A.2d 585, 1979 R.I. LEXIS 2043 (1979).

The knock and announce requirement is limited by certain qualifications and exceptions that apply under exigent circumstances. A no-knock search may be sustained, where the police, based on previous information and certain events at the scene, are confronted with an emergency situation, when approaching the premises. Thus the officer executing the warrant need not knock and announce himself when to do so would lead to the destruction of the evidence or increase the danger to the officer’s personal safety, where persons will escape and where it is evident that the officer’s purpose is known to those against whom the warrant is directed. State v. Sundel, 121 R.I. 638 , 402 A.2d 585, 1979 R.I. LEXIS 2043 (1979).

Waiting five to ten seconds after an officer knocks and announces “police” before the officer forces his way into a house for which a search warrant is issued, is reasonable, where the warrant is executed at approximately 9:30 p.m., and knocking on the front door continues and remains unanswered before the officer knocks on the back door and then forces his way in. United States v. One Parcel of Real Prop. Located in City of Woonsocket, 696 F. Supp. 783, 1988 U.S. Dist. LEXIS 11263 (D.R.I. 1988), aff'd, 873 F.2d 7, 1989 U.S. App. LEXIS 5344 (1st Cir. 1989).

The knock-and-announce requirement mandates that an officer must first knock and announce his or her identity and purpose and wait a reasonable length of time before he or she may break and enter into the premises to be searched. However, not every entry by police needs to be preceded by an announcement. A ruse may be necessary in order to preserve the police officer’s personal safety and to prevent the destruction of evidence by announcing police presence. State v. Mastracchio, 672 A.2d 438, 1996 R.I. LEXIS 42 (R.I. 1996).

— Listening Devices.

Obtaining evidence by listening in on telephone conversation after tapping wires in violation of state law was not an unreasonable search and seizure. Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944, 1928 U.S. LEXIS 694 (1928), overruled in part, Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576, 1967 U.S. LEXIS 2 (1967), overruled in part, Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040, 1967 U.S. LEXIS 2964 (1967).

The use of a detectaphone to overhear conversations in an adjoining room is not a violation of this amendment. Goldman v. United States, 316 U.S. 129, 62 S. Ct. 993, 86 L. Ed. 1322, 1942 U.S. LEXIS 1141 (1942), overruled in part, Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576, 1967 U.S. LEXIS 2 (1967).

The fourth amendment was not a bar to the admissibility of an audio/video recording of a suspected arsonist’s confession produced without his knowledge, where he had signed a form consenting to the use of electronic hearing and recording devices, had been fully informed of his Miranda rights, and did not have a justifiable expectation of privacy in his stationhouse statements. State v. Marini, 638 A.2d 507, 1994 R.I. LEXIS 67 (R.I. 1994).

Where state troopers’ monitoring of an exchange between an arrestee and an undercover trooper established probable cause for the issuance of an arrest warrant for simple assault, the trial court properly granted summary judgment in favor of the troopers on the arrestee’s civil claims for false arrest, malicious prosecution, and negligent supervision even though the arrestee was ultimately acquitted of the charges. Henshaw v. Doherty, 881 A.2d 909, 2005 R.I. LEXIS 178 (R.I. 2005).

— Metal Detector.

Search by courthouse officials of an attorney who has activated a magnetometer, the search of the attorney’s briefcase, and the prohibition against the attorney’s bringing his or her briefcase into the courthouse cell block did not constitute violations of the fourth amendment’s protection against unreasonable searches and seizures nor the effective representation of a client by counsel guaranteed by U.S. Const., amend. 6 and former R.I. Const., art. 1, § 10 (see now R.I. Const., Art. 1, Sec. 10 ). Rhode Island Defense Attorneys Ass'n v. Dodd, 463 A.2d 1370, 1983 R.I. LEXIS 1045 (R.I. 1983).

— Plain View.

Federal officers who, acting on a tip that smoking of opium was in progress in a hotel room, traced odor of burning opium to accused’s room and secured entry into room under color of office, violated the Fourth Amendment as presence of odors, while sufficient to justify issuance of search warrant, does not by itself justify search and seizure without a search warrant. Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436, 1948 U.S. LEXIS 2583 (1948).

The fourth amendment does not require police officer to avert his gaze from plainly visible weapon seen while investigating unrelated charge where officer was rightfully in position to see object. State v. Carillo, 113 R.I. 32 , 317 A.2d 449, 1974 R.I. LEXIS 1133 (1974).

Seizure of revolver plainly viewed under front car seat by officer making traffic arrest was proper and evidence was admissible on possession of firearms. State v. Carillo, 113 R.I. 32 , 317 A.2d 449, 1974 R.I. LEXIS 1133 (1974).

Where police officers had a description of a car, the driver of which was suspected of illegally possessing a gun, and they stopped such car and asked the driver for his registration and license pursuant to §§ 31-3-9 and 31-10-27 , the plain view doctrine applied and the suspect’s Fourth Amendment rights were not violated when the officers seized the gun which they noticed when the suspect turned on a light inside the car while searching for the documents. State v. Rattenni, 117 R.I. 221 , 366 A.2d 539, 1976 R.I. LEXIS 1615 (1976).

When evidence failed to establish that police officer had seen marijuana in defendant’s automobile before he opened the car door, the marijuana was not admissible under the plain view doctrine. State v. Marshall, 120 R.I. 306 , 387 A.2d 1046, 1978 R.I. LEXIS 672 (1978).

To sustain a warrantless search under the plain-view doctrine, the seizing officer must have lawfully been in the position which permitted the object to fall within his view, the discovery of the object must be made inadvertently; and there must be a nexus between the item to be seized and criminal behavior. State v. Robalewski, 418 A.2d 817, 1980 R.I. LEXIS 1717 (R.I. 1980).

When police respond to the scene of a homicide, they are justified in making an immediate warrantless search of the vicinity to check if other victims or the killer is present and, during the course of this type of emergency search, police may legally seize any evidence in plain view. State v. Jennings, 461 A.2d 361, 1983 R.I. LEXIS 957 (R.I. 1983).

The plain view doctrine is not applicable unless the items seized are evidence of a crime that came into view of an officer lawfully present on the premises searched. State v. Hockenhull, 525 A.2d 926, 1987 R.I. LEXIS 491 (R.I. 1987).

Three requirements must be fulfilled to animate the “plain view” exception: The seizing officer must have a prior justification for being in a position to see the item in plain view, the discovery of the item must be inadvertent, and the evidentiary value of the item must be immediately apparent to the officer. United States v. Aguirre, 839 F.2d 854, 1988 U.S. App. LEXIS 1835 (1st Cir. 1988).

The seizure of property in plain view by an officer is allowable when (1) the officer is lawfully in the position that allows him to see the evidence, (2) the officer discovers the evidence inadvertently, and (3) it is immediately apparent to the officer that the object is evidence of criminality. State v. Collins, 543 A.2d 641, 1988 R.I. LEXIS 65 (R.I. 1988), overruled, State v. Rios, 702 A.2d 889, 1997 R.I. LEXIS 295 (R.I. 1997).

A law enforcement official may seize evidence in plain view when (1) the officer is lawfully in the position that allows him to see the evidence, (2) the officer discovers the evidence inadvertently, and (3) it is immediately apparent to the officer that the object is evidence of criminality. State v. Wright, 558 A.2d 946, 1989 R.I. LEXIS 83 (R.I. 1989).

The fourth amendment allows a police officer with reasonable suspicion to slightly lean into an open car window and shine a flashlight into the vehicle to follow the occupant’s hands, so that a hand-gun seized in plain view was properly admitted into evidence. State v. Aubin, 622 A.2d 444, 1993 R.I. LEXIS 87 (R.I. 1993).

Where, while conducting a general search, police officers, relying on the plain-view doctrine, seized a magazine found on the defendant’s nightstand, which included an article describing the inside world of the drug trade and the challenges of stopping drug trafficking, as well as a police scanner and radio guide, in light of the accusation that the defendant was involved in drug trafficking, it was reasonable for the officers to suspect that these otherwise unincriminating objects were assisting defendant in avoiding police detection while carrying on illicit trades. Thus, the items were properly seized under the plain-view doctrine. State v. Pratt, 641 A.2d 732, 1994 R.I. LEXIS 161 (R.I. 1994).

Since a police officer’s presence at a residence was lawful because he was investigating a burglar alarm, and since the sight of a caged raccoon in plain view would have given him probable cause to believe that the animal was evidence or contraband, a two hour delay to check the raccoon’s license and to locate environmental management officers was reasonable, and no constitutional violation occurred. Bilida v. McCleod, 41 F. Supp. 2d 142, 1999 U.S. Dist. LEXIS 585 (D.R.I. 1999), aff'd, 211 F.3d 166, 2000 U.S. App. LEXIS 9136 (1st Cir. 2000).

— Probable Cause.

A magistrate may find probable cause either on evidence less than is required to convict or even on evidence which may be incompetent in a criminal trial. State v. Roach, 106 R.I. 280 , 259 A.2d 119, 1969 R.I. LEXIS 624 (1969).

While it is well established that only a probability and not a prima facie showing of criminal activity is the standard of probable cause, it is also clear that the record must contain evidence which would arouse something more than a mere suspicion of the guilt of the accused. State v. Roach, 106 R.I. 280 , 259 A.2d 119, 1969 R.I. LEXIS 624 (1969).

The term “probable cause” as it is used in this amendment and the term “reasonable ground” as it is found in § 12-7-3 are practically synonymous. State v. Roach, 106 R.I. 280 , 259 A.2d 119, 1969 R.I. LEXIS 624 (1969).

The legality of the arrest is to be determined by the existence of probable cause at the time of the arrest, not by what the subsequent search may disclose. State v. Roach, 106 R.I. 280 , 259 A.2d 119, 1969 R.I. LEXIS 624 (1969); State v. Firth, 418 A.2d 827, 1980 R.I. LEXIS 1729 (R.I. 1980); State v. Frazier, 421 A.2d 546, 1980 R.I. LEXIS 1857 (R.I. 1980); In re John C., 425 A.2d 536, 1981 R.I. LEXIS 1040 (R.I.), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005, 1981 U.S. LEXIS 2767 (1981).

Probable cause may be present in cases where any information upon which an arrest is made comes from an unidentified informer, provided there is a showing of the underlying circumstances of both the informer’s conclusion of guilt and the officer’s conclusion that his informant is reliable. State v. Roach, 106 R.I. 280 , 259 A.2d 119, 1969 R.I. LEXIS 624 (1969).

Section 12-7-3(a), authorizing a warrantless arrest on reasonable grounds that a misdemeanor was committed, meets the requirement of probable cause and is not in violation of this amendment. State v. Haigh, 112 R.I. 740 , 315 A.2d 431, 1974 R.I. LEXIS 1499 (1974).

Where the affidavit was based on information from an informant, it must recite some of the underlying circumstances both as to informant’s conclusion as to a violation of law or that the objects sought may be found where alleged and to the affiant’s conclusion that the informant or the information was trustworthy, but it need not recite convictions which resulted from informant’s past disclosures. State v. Joseph, 114 R.I. 596 , 337 A.2d 523, 1975 R.I. LEXIS 1460 (1975).

An agency subpoena may be issued without first obtaining a court’s permission and may be judicially enforced without a showing that probable or even reasonable cause exists to believe that a violation of law has occurred. United States v. Tivian Laboratories, Inc., 589 F.2d 49, 1978 U.S. App. LEXIS 6850 (1st Cir. 1978), cert. denied, 442 U.S. 942, 99 S. Ct. 2884, 61 L. Ed. 2d 312, 1979 U.S. LEXIS 2179 (1979).

The requirement of probable cause is satisfied if the affidavit in support of a warrant provides information either personally acquired or reliably communicated upon which a person of reasonable caution is warranted in believing that an offense has been or is being committed. In re Lafayette Academy, Inc., 462 F. Supp. 767, 1978 U.S. Dist. LEXIS 7265 (D.R.I. 1978), aff'd, 610 F.2d 1, 1979 U.S. App. LEXIS 10868 (1st Cir. 1979), disapproved, United States v. Christine, 687 F.2d 749, 1982 U.S. App. LEXIS 26034 (3d Cir. 1982).

Courts should treat with preference the drawing of inferences by a judicial officer on the basis of facts set forth in an affidavit in support of an application for a search warrant. In doubtful cases, preference must always be given to the use of warrants in order not to discourage police officers from submitting their evidence to a judicial officer before acting. State v. Read, 416 A.2d 684, 1980 R.I. LEXIS 1668 (R.I. 1980).

Although a court determining the existence of probable cause must view the circumstances in the context of the factual and practical considerations of everyday life, probable cause to arrest one person does not in itself constitute probable cause to arrest and search everyone else present or associating with the first individual. State v. Firth, 418 A.2d 827, 1980 R.I. LEXIS 1729 (R.I. 1980).

Probable cause exists when the facts and circumstances known by the officers and of which they have reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that an offense is being or has been committed and that the defendant has committed it. The arresting officer in the field is entitled to rely on the departmental knowledge that comes to him through official channels. State v. Firth, 418 A.2d 827, 1980 R.I. LEXIS 1729 (R.I. 1980).

One of the most important elements in determining whether probable cause existed is satisfied when the police know a crime has actually been committed. State v. Frazier, 421 A.2d 546, 1980 R.I. LEXIS 1857 (R.I. 1980).

When the arrest or search is made when the police do not know that a crime has been committed, more and better evidence is needed to prove that probable cause exists for the arrest than is the case when the police do know that a crime has been committed. State v. Frazier, 421 A.2d 546, 1980 R.I. LEXIS 1857 (R.I. 1980).

While a reasonable suspicion might justify a brief investigatory stop of an individual to determine his identity or momentarily to maintain the status quo, probable cause remains a prerequisite to an arrest. State v. Frazier, 421 A.2d 546, 1980 R.I. LEXIS 1857 (R.I. 1980).

The crucial issue is whether at the moment of the arrest the facts and circumstances within the police officer’s knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent person’s believing that the arrestee had committed or was committing an offense. State v. Frazier, 421 A.2d 546, 1980 R.I. LEXIS 1857 (R.I. 1980).

A search warrant may not be challenged as issued without probable cause merely because one or more of the persons toward whom the probable cause pointed turned out ultimately to be innocent: any contrary rule would require the evidentiary support necessary for probable cause to rise to the level of proof beyond a reasonable doubt. State v. Kowal, 423 A.2d 1380, 1980 R.I. LEXIS 1866 (R.I. 1980).

Probable cause to arrest depends upon whether, at the moment the arrest was made, the facts and circumstances within the arresting officers’ knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense. State v. Belcourt, 425 A.2d 1224, 1981 R.I. LEXIS 1041 (R.I.), cert. denied, 454 U.S. 842, 102 S. Ct. 154, 70 L. Ed. 2d 127, 1981 U.S. LEXIS 3400 (1981).

Establishing probable cause to make an arrest does not require the same degree of proof needed to determine guilt. State v. Belcourt, 425 A.2d 1224, 1981 R.I. LEXIS 1041 (R.I.), cert. denied, 454 U.S. 842, 102 S. Ct. 154, 70 L. Ed. 2d 127, 1981 U.S. LEXIS 3400 (1981).

Whether information an arresting officer receives through police channels can serve as the basis for a warrantless arrest depends in part on whether the information is reasonably trustworthy. State v. Belcourt, 425 A.2d 1224, 1981 R.I. LEXIS 1041 (R.I.), cert. denied, 454 U.S. 842, 102 S. Ct. 154, 70 L. Ed. 2d 127, 1981 U.S. LEXIS 3400 (1981).

The probable-cause inquiry may focus on the collective knowledge of the police department and is not limited to what the arresting officer knew. State v. Belcourt, 425 A.2d 1224, 1981 R.I. LEXIS 1041 (R.I.), cert. denied, 454 U.S. 842, 102 S. Ct. 154, 70 L. Ed. 2d 127, 1981 U.S. LEXIS 3400 (1981).

The “mosaic of facts and circumstances” on which the arresting officer relies in arresting a defendant may reflect the collective knowledge of the police department, as long as the arresting officer relies on that knowledge. State v. Brennan, 526 A.2d 483, 1987 R.I. LEXIS 507 (R.I. 1987).

Probable cause to arrest consists of those facts and circumstances within the police officer’s knowledge at the moment of arrest and of which he has reasonably trustworthy information that would warrant a reasonably prudent person’s believing that a crime has been committed and that the prospective arrestee has committed it. State v. Travis, 568 A.2d 316, 1990 R.I. LEXIS 6 (R.I. 1990).

Police officers had probable cause to suspect that the occupants of a white Mercury Monarch had committed a crime, where the vehicle had one license plate, which constituted a violation of Rhode Island law, and police had been called to the scene of a purse snatching only moments after observing the white Mercury in a parking lot. State v. Usenia, 599 A.2d 1026, 1991 R.I. LEXIS 157 (R.I. 1991).

Only a showing of probability, and not a prima facie showing, of criminal activity is the required standard to establish probable cause, and the issuing justice’s determination of probable cause should be paid great deference by reviewing courts. State v. Baldoni, 609 A.2d 219, 1992 R.I. LEXIS 142 (R.I. 1992).

The existence of probable cause must be determined in light of the information known to the police at the time of the arrest. United States v. Diallo, 29 F.3d 23, 1994 U.S. App. LEXIS 17511 (1st Cir. 1994).

Where the affidavit submitted in support of an apartment search warrant described the defendant’s purchase of approximately 29 pounds of marijuana and the subsequent forfeiture of approximately 26 pounds by an undercover officer to the police department, and where the affidavit further expressed the police department’s belief that the defendant “had given or sold those (missing) three pounds to person or persons unknown”, because the affidavit was devoid of any facts or other evidence to support the conclusion that the defendant had actually sold the marijuana, the issuing magistrate could reasonably conclude that the defendant had not sold or given away the drugs, but in fact still possessed them in his home. State v. Pratt, 641 A.2d 732, 1994 R.I. LEXIS 161 (R.I. 1994).

Where detectives collected information from three independent sources before apprehending the defendant, four informants in total, all of whom implicated the defendant in the crime charged, they had probable cause to believe that the defendant murdered the victim. State v. Kryla, 742 A.2d 1178, 1999 R.I. LEXIS 224 (R.I. 1999).

Based on experience in narcotics, a surveillance detective determined that a suspected drug transaction had taken place between defendant and a buyer. He seized a bag suspected to be cocaine, and then relayed the information via police radio to an arresting detective who was told the location of defendant and a description of his vehicle. When the arresting officer responded to the call within minutes of the suspected drug deal, defendant’s car was still parked in the exact spot the first detective had described. The information the arresting officer received through official channels had the requisite probable cause to arrest defendant, thus, the arrest was lawful; accordingly, defendant’s extemporaneous statements were not fruits of a poisonous tree, and defendant’s motion to suppress his statements was properly denied. State v. Castro, 891 A.2d 848, 2006 R.I. LEXIS 17 (R.I. 2006).

— — Found.

Affidavit based upon observations of defendant’s drug activities received by police from an unnamed informer whose information in the past had resulted in several arrests was sufficient probable cause to justify issuance of search warrant. State v. Cannon, 110 R.I. 246 , 292 A.2d 219, 1972 R.I. LEXIS 906 (1972).

Tested in the light of common sense and common knowledge, an inference drawn by a judicial officer that those who deal in large quantities of cannabis may well also deal in other types of controlled substances is not outside the ambit of probable cause. State v. Read, 416 A.2d 684, 1980 R.I. LEXIS 1668 (R.I. 1980).

Informant’s tip provided probable cause for the issuance of a search warrant. See United States v. Butler, 763 F.2d 11, 1985 U.S. App. LEXIS 31278 (1st Cir. 1985).

There was substantial basis for issuing a wiretap order on defendant’s phone where probable cause was established by a confidential informant, without using the information obtained from the placement of a pen register on the defendant’s phone. State v. McGoff, 517 A.2d 232, 1986 R.I. LEXIS 542 (R.I. 1986).

An affidavit in support of a search warrant is not fatally flawed due to a failure to contain the date of the activities therein alleged, where the affidavit is factually related to other information before the magistrate which does contain the date. United States v. Cochrane, 896 F.2d 635, 1990 U.S. App. LEXIS 2391 (1st Cir.), cert. denied, 496 U.S. 929, 110 S. Ct. 2627, 110 L. Ed. 2d 647, 1990 U.S. LEXIS 3029 (1990).

Since the police had information from a confidential, reliable informant identifying the defendants as being involved in a heroin ring and predicted the defendants were going to make a sale that night, and since the defendants appeared together, acted in a suspicious manner and drove in a way obviously calculated to evade surveillance, probable cause existed to support the police stop of their vehicle and the subsequent arrests. The district court’s denial of the motion to suppress evidence seized pursuant to the arrest was proper. United States v. Diallo, 29 F.3d 23, 1994 U.S. App. LEXIS 17511 (1st Cir. 1994).

The totality of circumstances reported in an affidavit was sufficient to establish probable cause to search the defendant’s second floor apartment, notwithstanding that a controlled heroin buy discussed in the affidavit was not perfectly monitored and that the informant buyer did not verify the name or specific location of the seller after emerging from the building, where the buy yielded a recovery of heroin consistent with the informant’s original tip, recorded in the affidavit, that a named woman and her husband, “name unknown,” were selling heroin in the second floor apartment and, as the affidavit notes, telephone company records showed a listing for a man with the woman’s last name on the second floor of the building. United States v. Genao, 281 F.3d 305, 2002 U.S. App. LEXIS 2952 (1st Cir.), cert. denied, 537 U.S. 901, 123 S. Ct. 216, 154 L. Ed. 2d 173, 2002 U.S. LEXIS 6756 (2002).

At no time during a search and subsequent arrest of defendant did the police violate defendant’s Fourth Amendment rights as they had probable cause to believe that defendant was involved in the breaking and entering in progress where defendant was outside the chopped up door with a hatchet; thus, the drugs which were subsequently found in defendant’s pockets were admissible. State v. Dustin, 874 A.2d 244, 2005 R.I. LEXIS 110 (R.I. 2005).

— — Not Found.

Information from reliable informer that defendant was seen in possession of lottery tickets and that he would be at backstretch of the racetrack that afternoon because his companion, a bookie, carried on his business there, did not justify a reasonable inference that on 5 p.m. of that afternoon defendant would have the tickets on the his person; accordingly, there was no probable cause for his arrest at that time. State v. Roach, 106 R.I. 280 , 259 A.2d 119, 1969 R.I. LEXIS 624 (1969).

Where information regarding a narcotics violation came from an unidentified source who had not established his reliability and who did not furnish any underlying reason for his belief, it was not reasonably trustworthy information necessary to establish probable cause for arrest. State v. Soroka, 112 R.I. 392 , 311 A.2d 45, 1973 R.I. LEXIS 997 (1973).

Where the police observations of the defendant failed to place him in criminal circumstances and the informant’s tips were mere conclusions of doubtful credibility, probable cause did not exist for the issuance of a search warrant by the magistrate. State v. Connell, 113 R.I. 605 , 324 A.2d 331, 1974 R.I. LEXIS 1215 (1974).

Where police, based on information from an informant that defendant attempted to sell him counterfeit currency which was in a container in defendant’s car, secured a warrant to search the car and another to search his parents’ residence and found the currency in the residence, the court held that, since the only indication that the currency was in the residence was that the car was parked there, the warrant was not based on probable cause and the search was invalid. State v. Joseph, 114 R.I. 596 , 337 A.2d 523, 1975 R.I. LEXIS 1460 (1975).

A warrant directing the seizure of all business records “relating to the interstate production, manufacture, distribution, purchase and dissemination of obscene materials” which was based on the affidavits of two law enforcement officers and not on a personal viewing of the obscene materials lacked probable cause and was drawn with an impermissible lack of particularity. United States v. Guarino, 610 F. Supp. 371, 1984 U.S. Dist. LEXIS 21051 (D.R.I. 1984).

In a case in which defendant was convicted of possession of child pornography, probable cause did not exist for a warrant because the detective’s affidavit described a display of nudity in a public place, but it did not indicate that there was a lascivious exhibition of the depicted child’s genitals or pubic area; it did not aver that the genitals or pubic area were the focal points; the described setting (a beach) was not particularly sexually suggestive; there was no indication that the image suggested sexual coyness, a willingness to engage in sexual activity, or that the image was intended or designed to elicit a sexual response; and the title of the file was not on its face suggestive of child pornography. State v. Reisner, 253 A.3d 1273, 2021 R.I. LEXIS 87 (R.I. 2021).

— Proper.

Prohibition agents who walked through an open gate on defendant’s premises and to a building on the rear of the premises and on looking through the window observed a still in action, were entitled to seize the still and contents. Carvalho v. United States, 54 F.2d 232, 1931 U.S. App. LEXIS 3879 (1st Cir. 1931).

Federal agent who was familiar with accused’s car, had knowledge that he transported liquor from “wet” to “dry” state, and had within preceding six months’ period seen him loading car with liquor in town which was ready source of supply for liquor, was justified in searching accused’s heavily weighted car when intercepted on highway leading from “wet” to “dry” state at a point inside boundary of latter. Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879, 1949 U.S. LEXIS 2084 (1949).

Where the Federal Bureau of Investigation conducted a coordinated series of searches for contraband and evidence related to loansharking and gambling in Rhode Island and pursuant to a warrant, they searched defendant’s house, the fact that for the first 45 minutes of the five-hour search, the agents insisted that defendant remain with them while they searched and that they refused to allow him to telephone his lawyer or anyone else, lest he issue a warning before other searches in the series were underway, did not violate either defendant’s fourth, fifth or sixth amendment rights. United States v. Timpani, 665 F.2d 1, 1981 U.S. App. LEXIS 15569 (1st Cir. 1981).

Admission of defendant’s cell phone seized when defendant was arrested was proper because (1) credible testimony supported admission; and (2) defendant’s contrary testimony was not credible. State v. Tejeda, 171 A.3d 983, 2017 R.I. LEXIS 106 (R.I. 2017).

— Random Drug Testing.

Drug testing regulations which require that the operators of natural gas pipelines or liquefied natural gas facilities implement random drug testing of employees who “perform . . . an operating, maintenance or emergency response function” do not constitute a clear constitutional violation sufficient to support federal jurisdiction. United Steelworkers of America, Local 12431 v. Skinner, 768 F. Supp. 30, 1991 U.S. Dist. LEXIS 10572 (D.R.I. 1991).

— School Officials.

It was not unreasonable for a school, acting in loco parentis, to move one child from one school to another school in the vicinity so that siblings could be questioned together by a state official following up on a possible abuse report made by a teacher. Wojcik v. Town of N. Smithfield, 76 F.3d 1, 1996 U.S. App. LEXIS 1474 (1st Cir. 1996).

Warrantless search of sixth-grade student and classmates in an effort to locate a knife that was missing from the school cafeteria was reasonable under the circumstances. Brousseau v. Town of Westerly, 11 F. Supp. 2d 177, 1998 U.S. Dist. LEXIS 8715 (D.R.I. 1998).

— Seized Vehicle.

The search of bales bound in a seized pickup truck, which bales proved to contain a large quantity of marijuana, seven days after the lawful seizure of the truck was reasonable and did not violate the constitutional rights of the defendant who was a passenger in the truck. United States v. McHugh, 769 F.2d 860, 1985 U.S. App. LEXIS 21893 (1st Cir. 1985).

Standing.

The burden of establishing the requisite standing to challenge the admissibility of evidence seized rests squarely on the defendant. State v. Porter, 437 A.2d 1368, 1981 R.I. LEXIS 1409 (R.I. 1981).

Fourth amendment rights are personal rights not to be vicariously asserted by a codefendant merely because he or she may be aggrieved by the introduction of damaging evidence. State v. Porter, 437 A.2d 1368, 1981 R.I. LEXIS 1409 (R.I. 1981).

Defendant lacked standing to object to inventory search of trunk of car borrowed by his son from a third party and at which the time of search defendant was a passenger in it and his son was driving it. United States v. Cardillo, 708 F.2d 29, 1983 U.S. App. LEXIS 27063 (1st Cir.), cert. denied, 464 U.S. 1010, 104 S. Ct. 531, 78 L. Ed. 2d 713, 1983 U.S. LEXIS 2670 (1983).

In a prosecution for possession of marijuana, the following facts, taken together, did not establish the type of possessory interest in the pickup truck in which the defendant was riding as a passenger, and in which the marijuana was found, sufficient to establish a legitimate expectation of privacy necessary for standing to challenge the admissibility of the seized marijuana: (1) The truck was neither registered nor owned by the defendant; (2) a registration check made a few days before the seizure revealed that the truck was registered by another; (3) the defendant’s brother was observed driving the truck on occasion; (4) at the time the truck was seized, the driver was in sole possession and control of the truck and its contents; and (5) the defendant had no legal right to exclude others from the truck’s possession and use. United States v. McHugh, 769 F.2d 860, 1985 U.S. App. LEXIS 21893 (1st Cir. 1985).

Evidence that the defendant was the lessee of the apartment searched was not sufficient to sustain his burden of proving a legitimate expectation of privacy where defendant was living elsewhere and had not lived in the apartment for months prior to the search. United States v. Gomez, 770 F.2d 251, 1985 U.S. App. LEXIS 22366 (1st Cir. 1985).

In determining whether a defendant has standing to invoke the exclusionary rule, courts must engage the substantive question of whether the challenged search or seizure violated the constitutional rights of that defendant. In particular, a defendant has no standing to invoke the rule because of the infringement of a third party’s rights. State v. McGoff, 517 A.2d 232, 1986 R.I. LEXIS 542 (R.I. 1986).

A defendant who exhibits no legitimate expectation of privacy in his estranged wife’s apartment lacks standing to challenge the introduction of a bloody pillowcase, knife, and blackjack found in the apartment after his wife’s murder. State v. Wright, 558 A.2d 946, 1989 R.I. LEXIS 83 (R.I. 1989).

A mayor’s calendar containing entries intending to remind him of purely personal activities, such as christenings, bachelor dinners, doctor appointments, weddings, and holiday plans, was of sufficiently nonpublic nature to justify a legitimate expectation of privacy for purposes of standing. United States v. Mancini, 8 F.3d 104, 1993 U.S. App. LEXIS 28701 (1st Cir. 1993).

A mayor had an objectively reasonable expectation of privacy in an archive attic located in the very building where he had worked for 19 years and access to which was considerably restricted. United States v. Mancini, 8 F.3d 104, 1993 U.S. App. LEXIS 28701 (1st Cir. 1993).

The defendant did not have a personal and legitimate expectation of privacy in the place searched or property seized, and lacked standing to assert a Fourth Amendment violation, since (1) the letters seized, although sent by the defendant, were addressed to another party; (2) the recorded telephone conversations were not constitutionally protected where one person who received the call consented to the recording; and (3) the defendant had neither possession nor dominion over any of the places searched. Gosselin v. McGillen, 847 F. Supp. 248, 1993 U.S. Dist. LEXIS 20218 (D.R.I. 1993).

Defendant, who had permission to use his father’s automobile whenever needed and presented a history of regular use of the vehicle, had standing to challenge a search of the automobile. State v. Milette, 702 A.2d 1165, 1997 R.I. LEXIS 299 (R.I. 1997).

Defendants, who were passengers in the vehicle, did not have standing to challenge the search of the vehicle because they did not have an ownership or possessory interest in it; the vehicle belonged to the driver’s mother and defendants had never driven the vehicle or kept personal items in the vehicle. State v. Quinlan, 921 A.2d 96, 2007 R.I. LEXIS 86 (R.I. 2007).

Defendant did not have a reasonable expectation of privacy in the text messages exchanged between himself and his girlfriend contained in her cell phone, and therefore he had no standing to challenge the search and seizure of her phone, because he had no control over who could view or access the text messages having already sent the incriminating text messages. The phone was used exclusively by the girlfriend and defendant exhibited no dominion or control over it, nor did he attempt to exclude others from accessing the phone. State v. Patino, 93 A.3d 40, 2014 R.I. LEXIS 99 (R.I. 2014), cert. denied, 574 U.S. 1081, 135 S. Ct. 947, 190 L. Ed. 2d 842, 2015 U.S. LEXIS 177 (2015).

Defendant lacked standing to contest the legality of a search during a traffic stop of the vehicle in which defendant was a passenger because defendant had no reasonable expectation of privacy in the vehicle, which belonged to the driver’s paramour, or in any of the stolen property that was seized from the vehicle during the search. State v. Ditren, 126 A.3d 414, 2015 R.I. LEXIS 101 (R.I. 2015).

Warrant.

Where items were seized which were not referred to in any manner in the authorizing warrant, the search and seizure were clearly unreasonable as to those items, which could be suppressed separately. In re Lafayette Academy, Inc., 462 F. Supp. 767, 1978 U.S. Dist. LEXIS 7265 (D.R.I. 1978), aff'd, 610 F.2d 1, 1979 U.S. App. LEXIS 10868 (1st Cir. 1979), disapproved, United States v. Christine, 687 F.2d 749, 1982 U.S. App. LEXIS 26034 (3d Cir. 1982).

The warrantless seizure of contraband pursuant to a valid arrest is an exception to the warrant requirement of this amendment. State v. DeWolfe, 121 R.I. 676 , 402 A.2d 740, 1979 R.I. LEXIS 2047 (1979).

Warrants that were issued in Rhode Island, and whose validity were not questioned, formed an adequate basis for a Florida police department, acting on the assumption that said warrants were valid, to enter a dwelling house in Florida. State v. Payano, 528 A.2d 721, 1987 R.I. LEXIS 530 (R.I. 1987).

Federal Toxic Substances Control Act (15 U.S.C. § 2610) implicitly grants the Environmental Protection Agency statutory authority to seek ex parte search warrants for the purpose of fulfilling its inspection duties under the act. Boliden Metech, Inc. v. United States, 695 F. Supp. 77, 1988 U.S. Dist. LEXIS 10531 (D.R.I. 1988).

A warrant describing the property and articles to be searched for as “any and all evidence of breaking and entering of dwellings, and possession of stolen goods, to include, but not limited to, jewelry, coins, collectors’ items, electronic equipment, etc.” was adequate and sufficiently descriptive given the urgent circumstances, since the defendant, who had been taken into custody during the afternoon, was likely to be released on bail or recognizance within a short time of his arrest, thus necessitating the request for authorization to execute the warrant during the nighttime. State v. Rose, 748 A.2d 1283, 2000 R.I. LEXIS 86 (R.I. 2000).

— Affidavits.

An affidavit was not invalid for failure to particularly describe the premises to be searched, where the allegations in the affidavit amply supported the inference drawn by the issuing justice that the entire dwelling unit and both occupants were involved in the storage of stolen drugs, and the issuing justice could infer on the basis of ordinary experience in the facts of life that a person engaged in the storage of a great quantity of stolen narcotics and related substances would not place it in a portion of a single-family dwelling house without having first taken the precaution of making a confederate of his tenant; in drawing these inferences from the affidavit, the justice was following the principal that affidavits for search warrants must be tested and interpreted by magistrates and courts in a common sense and realistic fashion. State v. Kowal, 423 A.2d 1380, 1980 R.I. LEXIS 1866 (R.I. 1980).

If a defendant can establish by a preponderance of the evidence at the hearing that the affiant either made deliberate misstatements or made statements with reckless disregard for the truth, and if these statements were necessary to a finding of probable cause, the court must invalidate the warrant and suppress the fruits of the search. United States v. Brian, 507 F. Supp. 761, 1981 U.S. Dist. LEXIS 10625 (D.R.I. 1981).

Where detective authored an affidavit for a warrant to search a car in police custody based on second-hand reports of arresting officer’s observations, which reports later proved to be erroneous in part, detective’s statements in affidavit in reliance on the reports were not proven to be knowingly or intentionally false or made with reckless disregard for truth. State v. DeMasi, 452 A.2d 1150, 1982 R.I. LEXIS 1112 (R.I. 1982), cert. denied, 460 U.S. 1052, 103 S. Ct. 1500, 75 L. Ed. 2d 931, 1983 U.S. LEXIS 4314 (1983).

Court is required to give a common-sense reading to the affidavit supporting a warrant. United States v. Calle-Cardenas, 837 F.2d 30, 1988 U.S. App. LEXIS 834 (1st Cir.), cert. denied, 485 U.S. 1024, 108 S. Ct. 1582, 99 L. Ed. 2d 897, 1988 U.S. LEXIS 1931 (1988).

Affidavit established probable cause for the issuance of a search warrant, where the affidavit asserted that a confidential informant had furnished information in the past leading to the arrest and conviction of an individual for a narcotics offense and the credibility of the informant was supported by an independent police investigation that corroborated the informant’s account. State v. Riccio, 551 A.2d 1183, 1988 R.I. LEXIS 150 (R.I. 1988).

An affidavit supporting a search warrant established probable cause to believe the defendant’s apartment contained cocaine, records, proceeds, and related items, where the reliability of informants was established and their information was not stale. United States v. Tabares, 951 F.2d 405, 1991 U.S. App. LEXIS 26867 (1st Cir. 1991).

Although the DEA agent had extensive training and expertise, her statements in the affidavit supporting the search warrant simply provided only generalized information regarding how drug traffickers operate; thus, the totality of the circumstances, as summarized within the four corners of the affidavit, did not give rise to a fair probability that the search of the particular location that the agent only presumed to be the suspected trafficker’s residence would uncover contraband. United States v. Rosario, 918 F. Supp. 524, 1996 U.S. Dist. LEXIS 3271 (D.R.I. 1996).

A bald assertion that the informant is reliable, with no allegations regarding the basis for the officer’s belief that the informant is reliable, is entitled to only slight weight; thus, it is only of slight moment that this case lacks the conclusory assertion of reliability. United States v. Khounsavanh, 113 F.3d 279, 1997 U.S. App. LEXIS 11402 (1st Cir. 1997).

The affidavit was sufficient to establish probable cause to issue a search warrant since the affidavit revealed information related to police by a reliable source and a concerned citizen, both of whom were known to the police, and the reports of both informants were supported by the independent corroborative observations of the police. State v. King, 693 A.2d 658, 1997 R.I. LEXIS 123 (R.I. 1997).

Errors in affidavits supporting warrants to search defendant’s phone records and apartment required no suppression because the affidavits sufficed without the errors. State v. Tejeda, 171 A.3d 983, 2017 R.I. LEXIS 106 (R.I. 2017).

In a child pornography case in which the named subscriber of an IP address did not reside at the address listed in the warrant, nothing within the affidavit rose to the level of a knowing or intelligent false statement or one made with reckless disregard for the truth as the police were able to make a direct connection between the device using that IP address, the physical address listed in the warrant, and the downloaded child pornography; and, even if the name of the subscriber listed in the warrant affidavit was disregarded, there was probable cause for the search warrant, considering the information regarding the IP address, and the detective’s surveillance of the physical address. Thus, the family court magistrate properly denied the respondent juvenile’s request for a Franks hearing. In re Austin B., 208 A.3d 1178, 2019 R.I. LEXIS 85 (R.I. 2019).

— Credibility of Informant.

In instances in which the police seek a search warrant based on information supplied to them by a confidential informer, the “two-pronged test” of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), essentially requiring a showing of “some of the underlying circumstances” relating both to the informer’s conclusion that the law is being violated (or that the objects to be sought may be found where he claims they are located) and to the affiant’s conclusion that his informer or the information he supplies is trustworthy, has been relaxed but not abandoned. Veracity, reliability, and basis of knowledge all remain “highly relevant” factors, closely intertwined with the commonsense, practical question whether there is “probable cause.” State v. Ricci, 472 A.2d 291, 1984 R.I. LEXIS 450 (R.I. 1984).

First-time informants can be found to be believable. State v. Pacheco, 481 A.2d 1009, 1984 R.I. LEXIS 602 (R.I. 1984).

— Description.

The description in the warrant as “garage located in the building at” a specified street address, and the prohibited articles as “cases of whisky” was sufficient. Steele v. United States, 267 U.S. 498, 45 S. Ct. 414, 69 L. Ed. 757, 1925 U.S. LEXIS 386 (1925).

A warrant authorizing the search of the “multi storied stone house” at a certain address, which was subdivided into apartments, without designing the particular apartment to be searched either by its number or the name of its occupants is not “particularly designating the place to be searched” within the meaning of this amendment and is invalid and defective. State v. Costakos, 101 R.I. 692 , 226 A.2d 695, 1967 R.I. LEXIS 822 (1967).

Where in the course of a legal search under a warrant issued upon probable cause, a police officer discovered goods, which at the time of the discovery he had reasonable grounds to believe were stolen, he may seize such goods, and they may subsequently be used in evidence although they were not listed in the warrant nor related to the crime on which the warrant was based. State v. Joseph, 114 R.I. 596 , 337 A.2d 523, 1975 R.I. LEXIS 1460 (1975).

Where a warrant apparently encompassed all documents in a party’s possession without limitation as to time or purpose, it was constitutionally invalid as unreasonable in scope and lacking in particularity of description. In re Lafayette Academy, Inc., 462 F. Supp. 767, 1978 U.S. Dist. LEXIS 7265 (D.R.I. 1978), aff'd, 610 F.2d 1, 1979 U.S. App. LEXIS 10868 (1st Cir. 1979), disapproved, United States v. Christine, 687 F.2d 749, 1982 U.S. App. LEXIS 26034 (3d Cir. 1982).

Two similar but significantly different tests must be met before a magistrate may issue a valid warrant containing only a generic description: first, the evidence presented to the magistrate must establish that there is reason to believe that a large collection of similar contraband is present on the premises to be searched, and second, the evidence before the magistrate must explain the method by which the executing agents are to differentiate the contraband from the rest of the defendant’s inventory. United States v. Cortellesso, 601 F.2d 28, 1979 U.S. App. LEXIS 13514 (1st Cir. 1979), cert. denied, 444 U.S. 1072, 100 S. Ct. 1016, 62 L. Ed. 2d 753, 1980 U.S. LEXIS 676 (1980).

The particularity requirement is a check to the risk that under a broadly worded warrant citizens are subject to a greater exercise of power than that which may actually transpire and for which probable cause is established. In re Application of Lafayette Academy, Inc., 610 F.2d 1, 1979 U.S. App. LEXIS 10868 (1st Cir. 1979).

The requirement that the warrant itself particularly describe the material to be seized is not only to circumscribe the discretion of the executing officers but also to inform the person subject to the search and seizure what the officers are entitled to take. In re Application of Lafayette Academy, Inc., 610 F.2d 1, 1979 U.S. App. LEXIS 10868 (1st Cir. 1979).

At a minimum, the precise nature of the offenses for evidence of which a search was authorized needs to be stated in order to delimit broad categories and thus to meet the particularity requirement. In re Application of Lafayette Academy, Inc., 610 F.2d 1, 1979 U.S. App. LEXIS 10868 (1st Cir. 1979).

While the traditional rule is that the generality of a warrant cannot be cured by the specificity of the affidavit which supports it, under some circumstances an affidavit may cure deficiences which would exist were the warrant to stand alone. In re Application of Lafayette Academy, Inc., 610 F.2d 1, 1979 U.S. App. LEXIS 10868 (1st Cir. 1979).

An affidavit may be referred to for purposes of providing particularity if the affidavit accompanies the warrant, and the warrant uses suitable words of reference which incorporate the affidavit. In re Application of Lafayette Academy, Inc., 610 F.2d 1, 1979 U.S. App. LEXIS 10868 (1st Cir. 1979).

Warrant which extensively described records sought and which specified statute thought to have been violated was sufficiently specific. United States v. Timpani, 665 F.2d 1, 1981 U.S. App. LEXIS 15569 (1st Cir. 1981).

The United States and Rhode Island Constitutions require only that decriptions in search warrants be as particular as the circumstances of each case will permit. State v. Ricci, 472 A.2d 291, 1984 R.I. LEXIS 450 (R.I. 1984).

Warrant authorizing search and seizure of “evidence relating to the homicide of (name of victim),” which set forth an illustrative list of the types of evidence that would be sought and which was supported by a detailed affidavit, was not a “general warrant.” State v. Wilshire, 509 A.2d 444, 1986 R.I. LEXIS 470 (R.I. 1986), cert. denied, 479 U.S. 1037, 107 S. Ct. 891, 93 L. Ed. 2d 843, 1987 U.S. LEXIS 146 (1987).

The warrant in this case was fatally flawed because it authorized the police to conduct a blanket or general search of the entire 12 acre, 18 building, 10 warehouse, 83 separate unit business complex, rented to at least 30 different tenants, and thus the evidence seized must be excluded. State v. Jeremiah, 696 A.2d 1220, 1997 R.I. LEXIS 213 (R.I. 1997).

When considering whether facts alleged in a search warrant affidavit established probable cause to issue a warrant, the fact that the affidavit omitted that another person, other than defendant, lived in the house to be searched was not significant because (1) the house was a single-family home, and (2) nothing showed defendant did not control the entire house. State v. Storey, 8 A.3d 454, 2010 R.I. LEXIS 110 (R.I. 2010).

Warrant issued to search defendant’s residence did not have to specify a particular location within the residence because (1) there was probable cause to search the whole house, and (2) the place to be searched could be identified by those executing the warrant. State v. Storey, 8 A.3d 454, 2010 R.I. LEXIS 110 (R.I. 2010).

For purpose of the execution of the search warrant, even though the Unit 2 listed in the warrant did not exist, and a group home was being operated at the physical address listed in the warrant, the warrant described the place to be searched and the items to be seized with sufficient particularity, and the officers were permitted to perform the search on that existing warrant. In re Austin B., 208 A.3d 1178, 2019 R.I. LEXIS 85 (R.I. 2019).

— Facts Establishing Probable Cause.

Because of the importance of Fourth Amendment freedoms to every American, and because of the fact-specific nature of the probable cause inquiry, the government’s contention that a controlled buy of contraband should be per se sufficient to establish probable cause for a search warrant is rejected. United States v. Khounsavanh, 113 F.3d 279, 1997 U.S. App. LEXIS 11402 (1st Cir. 1997).

Requisite nexus between contraband described in a search warrant affidavit and the place to be searched need not be based on direct observation of the suspect with the contraband at or near the area to be searched. Rather, it may be found in the type of crime, the nature of the items sought, the extent of the suspect’s opportunity for concealment, and normal inferences as to where a criminal would be likely to hide items of the sort sought in the warrant. State v. Byrne, 972 A.2d 633, 2009 R.I. LEXIS 78 (R.I. 2009).

As a reasonable inference could be drawn from the facts alleged in a detective’s affidavit that defendant would take home the easily transportable digital camera he used to take photos beneath a child’s skirt, a warrant to search defendant’s home for cameras was supported by probable cause under U.S. Const. amend. IV and R.I. Const. art. I, § 6 . State v. Byrne, 972 A.2d 633, 2009 R.I. LEXIS 78 (R.I. 2009).

Search warrant affidavit established probable cause to issue a search warrant for defendant’s residence, under the totality-of-the-circumstances test, because the confluence of an anonymous tip, twelve cut plastic baggies from defendant’s trash, cocaine residue on one baggie, defendant’s non-drug-related criminal history, and inferences therefrom showed a “fair probability” that drugs and indicia of drug distribution would be found at the residence. State v. Storey, 8 A.3d 454, 2010 R.I. LEXIS 110 (R.I. 2010).

It was not error for an affidavit seeking the issuance of a warrant to search for drugs and indicia of drug distribution to describe defendant’s history of non-drug-related criminal activity because such activity was part of the totality of the circumstances considered in determining whether to issue a warrant. State v. Storey, 8 A.3d 454, 2010 R.I. LEXIS 110 (R.I. 2010).

Two-month-old tip relied on to obtain a warrant to search defendant’s residence was not stale because trash seized from the residence shortly before the warrant was issued refreshed the tip, as evidence found in the trash was directly consistent with the tip. State v. Storey, 8 A.3d 454, 2010 R.I. LEXIS 110 (R.I. 2010).

When considering whether facts alleged in a search warrant affidavit established probable cause to issue a warrant, the fact that the affidavit alleged that cocaine residue was found on only one of twelve cut baggies found in defendant’s trash, which was consistent with personal use rather than distribution, was insignificant because the affidavit sought the issuance of a warrant to search for the presence of illegal narcotics, as well as any indicia of drug distribution. State v. Storey, 8 A.3d 454, 2010 R.I. LEXIS 110 (R.I. 2010).

Totality of the circumstances presented in an affidavit in support of a search warrant allowed the magistrate to reasonably infer that drugs would be found in defendant’s apartment, as the affiant stated that a confidential informant reported the sale of cocaine by a black male from an apartment, and police determined that defendant was that male and lived in that apartment. State v. Cosme, 57 A.3d 295, 2012 R.I. LEXIS 160 (R.I. 2012).

Defendant’s motion to suppress evidence seized from his residence was properly denied, as a confidential informant’s tip that he was selling drugs from his apartment was corroborated, and this corroborated tip, combined with defendant’s recent sale of cocaine in a controlled buy, satisfied the probable cause requirement to support the search warrant. State v. Cosme, 57 A.3d 295, 2012 R.I. LEXIS 160 (R.I. 2012).

Respondent juvenile’s motion to suppress was properly denied because the warrant was based on probable cause as the warrant application listed the correct IP address that was suspected of involvement with child pornography and the correct physical address linked to that IP address; and the fact that the named subscriber did not reside at the physical address listed in the warrant did not invalidate the warrant. In re Austin B., 208 A.3d 1178, 2019 R.I. LEXIS 85 (R.I. 2019).

— Good Faith Exception.

Although the affidavit supporting the warrant did not provide probable cause in the totality of the circumstances, the affidavit was not so lacking in indicia of probable cause as to render reliance on it unreasonable; the affidavit clearly established that the defendant participated in activities indicative of drug trafficking, and presented evidence that he might have resided at the location searched. Accordingly, the contraband seized in the search may be introduced at trial pursuant to the good faith exception to the exclusionary rule. United States v. Rosario, 918 F. Supp. 524, 1996 U.S. Dist. LEXIS 3271 (D.R.I. 1996).

— Liability for Seeking Warrant.

Judicial approval of a warrant does not serve as an absolute bar to the liability, under 42 U.S.C. § 1983, of the officer who obtained the warrant. However, only where an officer is “constitutionally negligent,” that is, where the officer should have known that the facts recited in the affidavit did not constitute probable cause, will liability attach. Briggs v. Malley, 748 F.2d 715, 1984 U.S. App. LEXIS 16595 (1st Cir. 1984), aff'd, 475 U.S. 335, 106 S. Ct. 1092, 89 L. Ed. 2d 271, 1986 U.S. LEXIS 29 (1986).

State police officer acted reasonably in relying on the uncorroborated statements of prisoners in seeking an arrest warrant for a former corrections officer suspected of aiding and abetting an escape, and was therefore protected by qualified immunity from suit by the corrections officer claiming that the police officer had obtained a warrant for his arrest, and caused him to be arrested, without probable cause in violation of the United States and Rhode Island Constitutions, and state law. Hoffman v. Reali, 973 F.2d 980, 1992 U.S. App. LEXIS 20215 (1st Cir. 1992).

In civil rights action against state police officers for arresting plaintiff as an illegal bettor without probable cause, summary judgment for the officers on qualified immunity grounds was denied where the only facts to support the reasonableness of the officers’ actions were the fact that the police found a rolodex in a suspected gambler’s home with plaintiff ’s name and address in it and the fact that one of the officers, not an expert in voice identification, made a tape lasting less than 60 seconds on a hand-held tape recorder of plaintiff ’s voice and compared it to the voice of a gambler. Ricci v. Urso, 974 F.2d 5, 1992 U.S. App. LEXIS 20472 (1st Cir. 1992).

— No-Knock Warrant.

Conduct of officers who broke a window in defendant’s residence while executing a “no-knock” warrant was clearly reasonable and there was no Fourth Amendment violation. United States v. Ramirez, 523 U.S. 65, 118 S. Ct. 992, 140 L. Ed. 2d 191, 1998 U.S. LEXIS 1600 (1998).

— Objections.

Conviction was sustained for possession of one revolver seized legally but without warrant although constitutionality of seizure of second revolver also admitted at trial was not determined since court was satisfied beyond a reasonable doubt that admission of second revolver did not contribute to verdict based on first revolver and if error, was harmless. State v. Carillo, 113 R.I. 32 , 317 A.2d 449, 1974 R.I. LEXIS 1133 (1974).

— Scope.

Police conducting a search pursuant to a warrant have the right to search any portion of the area to be searched that is capable of containing or concealing an object of the search, including trash bags. State v. Wilshire, 509 A.2d 444, 1986 R.I. LEXIS 470 (R.I. 1986), cert. denied, 479 U.S. 1037, 107 S. Ct. 891, 93 L. Ed. 2d 843, 1987 U.S. LEXIS 146 (1987).

In a murder case, police did not exceed the scope of a second warrant in seizing a camera and its contents from defendant’s residence where the camera was metal or hard plastic and was a compact piece of equipment that could have been swung to inflict serious pain, and thus it fell within the language of the warrant. State v. Depina, 245 A.3d 1222, 2021 R.I. LEXIS 12 (R.I. 2021).

— Waiver.

Where the owner of exhibits voluntarily produced them as evidence in a civil suit, and the same were impounded by order of the court, their subsequent use as evidence against the owner before the grand jury was not a violation of this amendment. Perlman v. United States, 247 U.S. 7, 38 S. Ct. 417, 62 L. Ed. 950, 1918 U.S. LEXIS 1986 (1918).

Fact that wife of suspected person in his absence admitted government officers to premises under coercion was not a waiver of husband’s constitutional right against search and seizure without a warrant. Amos v. United States, 255 U.S. 313, 41 S. Ct. 266, 65 L. Ed. 654, 1921 U.S. LEXIS 1827 (1921).

— Warrantless Searches.

When evidence is likely to be lost, destroyed, or removed during the time required to obtain a warrant and when, because of the circumstamces, it is difficult to secure a warrant, a warrantless entry and search may be justified. State v. Jennings, 461 A.2d 361, 1983 R.I. LEXIS 957 (R.I. 1983).

The existence of exigent-circumstances exception to the warrant requirement encompasses the situation in which police believe a person within requires immediate assistance or other victims or intruders may still be present. State v. Jennings, 461 A.2d 361, 1983 R.I. LEXIS 957 (R.I. 1983).

A warrantless entry is permitted in an “emergency” requiring preventative action, even though no crime has been committed. The police must have an objective, reasonable belief that a crisis can only be avoided by swift and immediate action, such as where a minor is missing and is believed to be in peril. Duquette v. Godbout, 471 A.2d 1359, 1984 R.I. LEXIS 462 (R.I. 1984).

Once the reason for an entry into a premises without a warrant disappears, officers no longer have any right to be on the premises. State v. Beaumier, 480 A.2d 1367, 1984 R.I. LEXIS 589 (R.I. 1984), overruled, State v. Rios, 702 A.2d 889, 1997 R.I. LEXIS 295 (R.I. 1997).

Exigent circumstances occur when a reasonable officer believes that to delay acting to obtain a warrant would, in all likelihood, permanently frustrate an important police objective, such as to prevent the destruction of evidence relating to criminal activity or to secure an arrest before a suspect can commit further serious harm. United States v. Rengifo, 858 F.2d 800, 1988 U.S. App. LEXIS 14018 (1st Cir. 1988), cert. denied, 490 U.S. 1023, 109 S. Ct. 1752, 104 L. Ed. 2d 189, 1989 U.S. LEXIS 1847 (1989).

A burning building clearly creates an exigency that justifies a warrantless entry by fire officials to fight a blaze. Once firefighters enter a building for this purpose, they may seize evidence of arson that is in plain view. An immediate threat that the blaze might rekindle also presents an exigency that justifies a warrantless and nonconsensual post-fire investigation. State v. Hoffman, 567 A.2d 1134, 1990 R.I. LEXIS 1 (R.I. 1990).

Exigency created by an explosion and fire was still present when an official investigation began, where, even though rekindling did not appear to be imminent, legitimate concerns regarding additional structural collapse did persist at the time a fire inspector began his search of the premises. State v. Hoffman, 567 A.2d 1134, 1990 R.I. LEXIS 1 (R.I. 1990).

Exigent circumstances justified the warrantless search of defendant’s bathroom where the police had reason to believe that defendant had lodged an extremely dangerous weapon nearby, the structure and nature of the building suggested the weapon’s ready availability to others, and the extent of the intrusion was relatively limited. United States v. Lopez, 989 F.2d 24, 1993 U.S. App. LEXIS 6015 (1st Cir.), cert. denied, 510 U.S. 872, 114 S. Ct. 201, 126 L. Ed. 2d 158, 1993 U.S. LEXIS 5775 (1993).

Since law enforcement officers’ relevant knowledge regarding a raccoon being kept as a pet in a residence was complete almost two hours before environmental management officers arrived to seize the animal, and since the officers on the scene were not motivated by an objective or subjective belief that the animal would be spirited away or that it was imminently dangerous, there were no exigent circumstances justifying an exception to the warrant requirement. Bilida v. McCleod, 41 F. Supp. 2d 142, 1999 U.S. Dist. LEXIS 585 (D.R.I. 1999), aff'd, 211 F.3d 166, 2000 U.S. App. LEXIS 9136 (1st Cir. 2000).

A second entry could not avoid the warrant requirement absent some new exigent circumstance or other excuse for failing to get a warrant since it was effected for a different reason some time after the legally entering officer had left the premises. Bilida v. McCleod, 211 F.3d 166, 2000 U.S. App. LEXIS 9136 (1st Cir. 2000).

Search of defendant’s home did not violate the Fourth Amendment to the United States Constitution or R.I. Const. art. I, § 6 where the totality of the circumstances justified forced entry by the police and at no time during their initial search did the officers conduct an exploratory search. State v. Portes, 840 A.2d 1131, 2004 R.I. LEXIS 13 (R.I. 2004).

— — Regulated Businesses.

Sections 23-23-5(7) and 42-17.1-2(t) (now (20)) do not violate the Fourth Amendment to the U.S. Const. and R.I. Const., art. 1, § 6 , because under New York v. Burger , 482 U.S. 691, 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987), a warrantless search of a pervasively regulated business is reasonable if there is a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made, the warrantless inspections are necessary to further the regulatory scheme, and the statute’s inspection program, in terms of the certainty and regularity of its application, provides a constitutionally adequate substitute for a warrant. Keeney v. Vinagro, 656 A.2d 973, 1995 R.I. LEXIS 101 (R.I. 1995).

Where a fire chief ordered his officers to deny access into or out of a building and entered areas not generally open to the public, this constituted a search and seizure within the meaning of the fourth amendment, and remaining questions of material fact as to whether consent had been given and the search was reasonable required a vacation of summary judgment as to the chief. Vaill v. Franklin, 722 A.2d 793, 1999 R.I. LEXIS 1 (R.I. 1999).

— When Necessary.

Where the police could have obtained a search warrant for evidence whose discovery they fully anticipated, under circumstances which indicated that no intolerable delay would have been required, the talisman excuse of police safety did not justify their excursion beyond the scope of activity necessary to effect the defendant’s arrest, and a search warrant based on their observations was likewise invalid. United States v. D'Alo, 486 F. Supp. 945, 1979 U.S. Dist. LEXIS 10552 (D.R.I. 1979).

Merely because officers may have probable cause to believe that a dwelling house contains contraband does not give officers permission to avoid the warrant requirement. State v. Alexander, 433 A.2d 965, 1981 R.I. LEXIS 1253 (R.I. 1981).

Even assuming that the police had probable cause to believe that a room might contain contraband, that probable cause could not form a basis for a warrantless entry. State v. Alexander, 433 A.2d 965, 1981 R.I. LEXIS 1253 (R.I. 1981).

Once government officials exercise exclusive control over containers, luggage or repositories of personal effects, they must obtain warrants to conduct searches. State v. Eiseman, 461 A.2d 369, 1983 R.I. LEXIS 961 (R.I. 1983).

State’s subsequent chemical analysis of certain contents discovered through a private search was a significant expansion of that private search, and the state’s failure to obtain a search warrant to conduct the analysis where there were no exceptions to the warrant requirement was reversible error. State v. Von Bulow, 475 A.2d 995, 1984 R.I. LEXIS 491 , 1984 R.I. LEXIS 510 (R.I.), cert. denied, 469 U.S. 875, 105 S. Ct. 233, 83 L. Ed. 2d 162, 1984 U.S. LEXIS 3818 (1984).

Double Jeopardy.

The prohibition of this amendment is not against being twice punished, but against being twice put in jeopardy, and the accused whether convicted or acquitted, is equally put in jeopardy after trial on the first offense. United States v. Ball, 163 U.S. 662, 16 S. Ct. 1192, 41 L. Ed. 300, 1896 U.S. LEXIS 2296 (1896).

Where sentence of petitioner was to begin after expiration of prior sentence he was then erroneously thought to be serving and it was later discovered that he was not serving a prior sentence, a correction of the sentence four days later, when he was again brought before the court, did not constitute two sentences on one indictment and was not a violation of his constitutional rights under this provision. Sanford v. Langlois, 93 R.I. 1 , 170 A.2d 283, 1961 R.I. LEXIS 69 (1961).

Where defendants indicted for rape, kidnapping, sodomy and larceny pled nolo contendere pursuant to a plea bargain which provided for sentences on all four charges, and where trial judge first accepted, then revoked, the plea bargain and reinstated the not guilty pleas upon which the jury returned a verdict of not guilty of rape and kidnapping with sentences greater than those originally agreed upon in the plea bargain, upon remand by the supreme court with instructions to resentence in accordance with the original bargain, the sentencing judge could not impose the agreed-upon sentences for sodomy and larceny since defendants had been acquitted for those charges by the jury and to do so would violate the double jeopardy prohibitions of the Constitution. State v. Abbott, 117 R.I. 295 , 366 A.2d 1135, 1976 R.I. LEXIS 1627 (1976).

To determine whether a defendant being tried for the violation of two distinct statutory provisions which arose from the same act or transaction is being placed twice in jeopardy, the test to be applied is whether each statutory provision requires proof of a fact which the other does not. State v. Davis, 120 R.I. 82 , 384 A.2d 1061, 1978 R.I. LEXIS 764 (1978); State v. Pope, 414 A.2d 781, 1980 R.I. LEXIS 1640 (R.I. 1980), overruled in part, State v. Acquisto, 463 A.2d 122, 1983 R.I. LEXIS 1012 (R.I. 1983).

Where appellants themselves have pressed for a mistrial, the double jeopardy clause bars a new trial only if it can be said that the government’s claimed error stemmed from bad faith, an effort to harrass or prejudice, or an attempt to provoke a mistrial. United States v. Zozlio, 617 F.2d 314, 1980 U.S. App. LEXIS 19534 (1st Cir. 1980).

Retrial would constitute double jeopardy where prosecutorial or judicial overreaching had caused the original mistrial. United States v. D'Alo, 486 F. Supp. 954, 1980 U.S. Dist. LEXIS 10776 (D.R.I. 1980), disapproved, United States v. Motley, 655 F.2d 186, 1981 U.S. App. LEXIS 18136 (9th Cir. 1981); State v. Doyon, 416 A.2d 130, 1980 R.I. LEXIS 1663 (R.I. 1980).

A new information which was prompted by evidence developed a trial prior to a declaration of mistrial and which increased the potential for conviction could not be imposed in lieu of the original indictment, as it would have victimized the defendant significantly for having successfully pursued a legitmate trial tactic. United States v. D'Alo, 486 F. Supp. 954, 1980 U.S. Dist. LEXIS 10776 (D.R.I. 1980), disapproved, United States v. Motley, 655 F.2d 186, 1981 U.S. App. LEXIS 18136 (9th Cir. 1981).

When the same act or transaction constitutes the violation of two distinct statutory provisions, the applicable standard is found in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932) wherein the court stated, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” State v. Anthony, 422 A.2d 921, 1980 R.I. LEXIS 1852 (R.I. 1980).

When the meaning of a criminal statute is ambiguous, the policy of lenity in the construction of criminal statutes requires that the less harsh of two possible meanings be adopted. Its purpose is to prevent the pyramiding of sentences when the penalties have not been clearly authorized. State v. Anthony, 422 A.2d 921, 1980 R.I. LEXIS 1852 (R.I. 1980).

The fifth amendment ban on double jeopardy is based upon the common-law pleas of autrefois acquit and autrefois convict. Ventures Management Co. v. Geruso, 434 A.2d 252, 1981 R.I. LEXIS 1254 (R.I. 1981).

The concept of double jeopardy is wholly inapplicable to the issue of civil contempt. Ventures Management Co. v. Geruso, 434 A.2d 252, 1981 R.I. LEXIS 1254 (R.I. 1981).

The standard used for determining whether an accused is in danger of being twice placed in jeopardy for the same offense is that set forth by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), wherein the supreme court held that: “the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” State v. Ballard, 439 A.2d 1375, 1982 R.I. LEXIS 796 (R.I. 1982).

Ordinarily, when a mistrial is granted on the defendant’s motion or with his consent the principal of double jeopardy does not bar a subsequent prosecution. State v. Sundel, 460 A.2d 939, 1983 R.I. LEXIS 954 (R.I. 1983).

Double jeopardy did not bar defendant’s retrial for second-degree murder after the Supreme Court had sustained his appeal on the ground that a mistrial should have been awarded, where the prosecutor had not intended to bring about a mistrial, even though his conduct gave rise to a situation in which a mistrial should properly have been granted. State v. Diaz, 521 A.2d 129, 1987 R.I. LEXIS 418 (R.I. 1987).

Where the granting of a Rule 29 motion for judgment of acquittal did not terminate the prosecution’s case, was never communicated to the jury which remained impaneled, and only had the effect of reducing certain charges; the granting of the motion had no effect on the continuance of the trial and submission of the case to the jury which remained impaneled, and the defendant was not faced with the threat of reprosecution in violation of double jeopardy. State v. Iovino, 524 A.2d 556, 1987 R.I. LEXIS 449 (R.I. 1987).

Where the defendant apparently sought to promote the trial’s progression by attempting to resolve the controversy surrounding his request for his wife to assist with communication at counsel table, his failure to arrange for an interpreter, even if engendering a concern for the effectiveness of counsel and serving as a catalyst for the declaration of mistrial, cannot be construed as a request for or consent to mistrial, nor can his failure to object after the trial justice’s abrupt and unanticipated declaration of mistrial be viewed as acquiesence in the ruling. Accordingly, the mistrial cannot be said to have been declared at defendant’s behest. State v. Torres, 524 A.2d 1120, 1987 R.I. LEXIS 473 (R.I. 1987).

The manifest-necessity standard is the proper measure of double-jeopardy protection that must be extended to a defendant absent the defendant’s request or consent, even though the trial justice, in declaring the mistrial, was motivated by desire to protect the defendant’s rights and was therefore, in effect, conferring a benefit upon the defendant. State v. Torres, 524 A.2d 1120, 1987 R.I. LEXIS 473 (R.I. 1987).

The Double Jeopardy Clause embodies three distinct safeguards for one accused of a crime. First, it protects against a second prosecution for the same offense after acquittal. Second, it protects against a second prosecution for the same offense after conviction. Third, it protects against multiple punishments for the same offense. United States v. Abreu, 952 F.2d 1458, 1992 U.S. App. LEXIS 84 (1st Cir.), cert. denied, 503 U.S. 994, 112 S. Ct. 1695, 118 L. Ed. 2d 406, 1992 U.S. LEXIS 2483 (1992).

Defendant never properly brought the defense of double jeopardy to the trial justice’s attention, nor did the facts give rise to one of the limited situations wherein the court would address a double jeopardy claim despite its improper assertion. State v. Thomas, 654 A.2d 327, 1995 R.I. LEXIS 38 (R.I. 1995).

Civil forfeitures for violations of narcotics laws are neither “punishment” nor “criminal” for purposes of double jeopardy. United States v. One Lot of $17,220, 183 F.R.D. 54 (D.R.I. 1998).

Since possession of the same shotgun and possession of the same cocaine served as the basis for charges of possession of cocaine while having available a shotgun, and possession of a shotgun while committing a crime of violence, being in possession of cocaine, double jeopardy attached. In re Malik D., 730 A.2d 1070, 1999 R.I. LEXIS 136 (R.I. 1999).

Defendant waived an argument that convictions and separate sentences for second-degree murder and carrying a dangerous weapon in the commission of a crime of violence violated double jeopardy guarantees by failing to raise it in a pretrial motion; nonetheless, the court ruled on the merits and held in furtherance of Rodriguez , that the two crimes were separate for double jeopardy purposes as each required an element that the other did not, namely, commission of a murder and the carrying of a dangerous weapon. State v. McGuy, 841 A.2d 1109, 2003 R.I. LEXIS 209 (R.I. 2003).

Defendant did not preserve for review a merger claim under the Double Jeopardy Clauses of the United States and Rhode Island Constitutions, U.S. Const. amend. IV, and R.I. Const. art. I, § 7 as the merger issue was not raised before the trial justice as required by R.I. Super. Ct. R. Crim. P. 12 (b)(2), and the trial justice did not rule on the issue; however, defendant could seek relief under R.I. Super. Ct. R. Crim. P. 35 within 120 days of the opinion. State v. Shelton, 990 A.2d 191, 2010 R.I. LEXIS 35 (R.I. 2010).

Because defendant failed to raise a motion asserting the defense of double jeopardy before trial, he was precluded from thereafter raising a double jeopardy challenge; however, even if defendant’s double jeopardy contentions were properly before the court, they were without merit because the principal evil against which the Double Jeopardy Clause protects — multiple criminal punishments for the same offense — was not implicated because defendant stood convicted of (and punished for) a single offense of robbery. State v. Matthews, 88 A.3d 375, 2014 R.I. LEXIS 38 (R.I. 2014).

— Acts Constituting Violations.

Discharge of prisoner who had been imprisoned without trial for a period of six months contrary to provisions of G.L. 1909, ch. 354, § 17 [§ 12-13-7 ] did not constitute a discharge from the offense but was only a discharge from prison under the indictment, so that when a new grand jury returned another indictment, the prior discharge was not a bar to the prosecution. State v. Deslovers, 40 R.I. 89 , 100 A. 64, 1917 R.I. LEXIS 15 (1917).

Double jeopardy was found in a particular case where, in order to prove both extortion and assault with intent to rob, the state had to demonstrate the identical elements of an intentional threat to the victim that placed him in fear of actual bodily harm, the purpose of which was to force him to give the defendant money, and proof of no additional fact was required to establish both crimes. State v. Pope, 414 A.2d 781, 1980 R.I. LEXIS 1640 (R.I. 1980), overruled in part, State v. Acquisto, 463 A.2d 122, 1983 R.I. LEXIS 1012 (R.I. 1983).

Because the state must prove all the elements of arson as well as all the elements of murder for a felony-murder conviction under § 11-23-1 and because only one of the offenses requires proof of a fact that the other does not, the underlying arson-felony necessarily merges with the murder. Accordingly, separate though concurrent sentences for the two offenses constitute double punishment for the same offense, thereby violating the double-jeopardy clauses of both the federal and state constitutions. State v. Doyon, 416 A.2d 130, 1980 R.I. LEXIS 1663 (R.I. 1980).

Convicting a defendant of both delivery of a controlled substance and possession with intent to deliver that same substance is a clear violation of the constitutional prohibition against double jeopardy. State v. Chaplow, 443 A.2d 432, 1982 R.I. LEXIS 822 (R.I. 1982).

Where trial justice’s decision granting a new trial after trial was based on the legal insufficiency of the evidence, retrial of this defendant was prohibited by the double-jeopardy clause. State v. Perkins, 460 A.2d 1245, 1983 R.I. LEXIS 960 (R.I. 1983).

Where the trial justice labored under three concerns before declaring the mistrial: Judicial economy, defendant’s potential communication problem, and absence of a prosecution witness, none of these concerns manifestly required the mistrial, since the potential length of any continuance that might be required to resolve the problems at hand did not warrant the jury’s dismissal, the communication problem was resolved with a continuance that merely extended from midpoint in the court’s afternoon session to the next morning, a loss of only a few hours, the record was devoid of any indication that the witness problem required a continuance, given that the prosecution had other witnesses to call, or if it did require a continuance, that the continuance would be lengthy, and the reason for the witness’s absence was minor and on its face easily resolvable within a brief period. Hence, the mistrial was improperly declared under the manifest-necessity standard, and further prosecution would violate the imperative ban against double jeopardy. State v. Torres, 524 A.2d 1120, 1987 R.I. LEXIS 473 (R.I. 1987).

The defendant’s conviction on abominable and detestable crime against nature counts violates the prohibition against double jeopardy, where some, if not all, of the actions underlying the conviction are the same acts that constituted the basis of the defendant’s first degree sexual assault convictions. State v. Barnes, 559 A.2d 136, 1989 R.I. LEXIS 95 (R.I. 1989).

A rehearing of a charge of criminal contempt would have been impermissible as violative of the ban on double jeopardy in light of a reversal of a prior adjudication of contempt based on the ground that the evidence was insufficient as a matter of law. State v. Brown, 599 A.2d 728, 1991 R.I. LEXIS 166 (R.I. 1991).

Jeopardy attached once the trial justice accepted the defendant’s plea of nolo contendere and imposed a sentence. The justice’s decision to vacate the plea therefore violated the defendant’s right under the double jeopardy clause. State v. Gazzero, 617 A.2d 405, 1992 R.I. LEXIS 266 (R.I. 1992).

— Acts Not Constituting Violations.

The state’s appeal from an order granting the defendant’s motion to dismiss does not violate double jeopardy where the agreed statement of facts between the parties stipulates that the facts are only to be considered for a pretrial determination and the defendant specifically reserves the right to a jury trial. State v. Pari, 546 A.2d 175, 1988 R.I. LEXIS 119 (R.I. 1988).

Where the same set of facts give rise to the charges as contained in counts 2, 4, and 7 of a criminal information lodged against a defendant, who argues that the information is multiplicious and a violation of his Federal and State Constitutional protections against double jeopardy and that counts 4 and 7 are lesser included offenses of count 2 and do not require proof of any additional facts, the trial justice is correct in denying the defendant’s motion to compel election because the state can prove any one of the charges at trial if the evidence elicited supports a guilty verdict, and because the defendant can adequately prepare a defense, as he is effectively put on notice of the possible conviction of a lesser offense supported by the evidence. State v. Tessier, 589 A.2d 1199, 1991 R.I. LEXIS 78 (R.I. 1991).

The double jeopardy clause did not bar the state from prosecuting a juvenile defendant in the superior court following his participation in a waiver-of-jurisdiction hearing in the family court, since the double-jeopardy clause applies only to proceedings that are “essentially criminal”, subjecting the defendant to the possibility of punitive incarceration. State v. Grabowski, 644 A.2d 1282, 1994 R.I. LEXIS 196 (R.I. 1994).

Where the sentencing judge found a defendant’s admission of perjury to be evidence of remorse and a mitigating factor in her sentencing decision, a subsequent trial court’s decision to grant a motion to dismiss a criminal information for perjury on double jeopardy grounds was error, since the information was not a prosecution for the same offense for which the defendant had been convicted previously, nor had the defendant ever been punished previously for his admitted perjury. State v. Ciolli, 725 A.2d 268, 1999 R.I. LEXIS 8 (R.I. 1999).

Dual convictions for carrying a dangerous weapon when committing a crime of violence and first-degree robbery did not constitute a double jeopardy violation because each offense included an additional element of proof that was not contained in the other; the jury could have returned a verdict of guilty on the robbery charge based on either defendant’s use of a dangerous weapon or the injury inflicted upon the victim, while the conviction for committing a crime of violence while armed or having available a firearm did not require that the weapon be used or that there be an injury to the victim. State v. Stone, 924 A.2d 773, 2007 R.I. LEXIS 77 (R.I. 2007).

Charges of assault with a dangerous weapon and assault and battery resulting in serious injury did not merge, as defendant’s assault of the victim with a screwdriver supported the former, while the dislocation of the victim’s shoulder supported the latter. State v. Scanlon, 982 A.2d 1268, 2009 R.I. LEXIS 127 (R.I. 2009).

Convictions for robbery and using a firearm during a violent crime did not violate the Double Jeopardy Clauses of the state and federal constitutions, where the General Assembly expressed a clear directive that consecutive sentences be imposed for certain violence crimes committed by use of a firearm. State v. Marsich, 10 A.3d 435, 2010 R.I. LEXIS 118 (R.I. 2010).

Defendant was not entitled to acquittal on double jeopardy grounds as to convictions for discharging a firearm in commission of a crime of violence and assault with intent to murder because the legislature clearly intended multiple sentences for such convictions arising from one incident. State v. Young, 78 A.3d 787, 2013 R.I. LEXIS 142 (R.I. 2013).

Although the question of double jeopardy was not properly raised prior to trial under the rules of criminal procedure, and the issue was waived, nonetheless, there was no double jeopardy violation to remedy; defendant stood convicted of (and punished for) assault by strangulation, and was acquitted of assault with a dangerous weapon. State v. Funches, 160 A.3d 981, 2017 R.I. LEXIS 72 (R.I. 2017).

— Civil Forfeitures.

A fine assessed against a former mayor for violations of the Code of Ethics may represent punishment to the extent that it would bar a subsequent prosecution for criminal acts under double jeopardy analysis, if the fine is not merely remedial but also serves a retributive or deterrent purpose. State v. Levesque, 694 A.2d 411, 1997 R.I. LEXIS 118 (R.I. 1997).

Civil in rem forfeiture proceedings do not implicate the double jeopardy clause and are not per se quasi-criminal. State v. One 1990 Chevrolet Corvette, 695 A.2d 502, 1997 R.I. LEXIS 201 (R.I. 1997).

— Contempt

Prior finding that a confined juvenile who refused to participate in required psychiatric treatment was in civil contempt did not preclude, on double jeopardy grounds, a later prosecution for criminal contempt based on continued noncompliance. State v. Price, 820 A.2d 956, 2003 R.I. LEXIS 99 (R.I. 2003).

— Felony Murder.

Double jeopardy bars conviction of an underlying offense when that offense is used to form a basis of felony-murder. State v. Baton, 488 A.2d 696, 1985 R.I. LEXIS 449 (R.I. 1985).

If a homicide committed during the commission of another crime can be proven under a theory other than felony-murder, the underlying charge may be separately considered by the jury and separately punished. State v. Baton, 488 A.2d 696, 1985 R.I. LEXIS 449 (R.I. 1985).

— Lesser Included Offense.

When a defendant pleads to and is sentenced to a lesser included offense, double jeopardy does not bar prosecution on the more serious charges if they remained pending at the time sentence was imposed. United States v. Ajayi, 935 F. Supp. 90, 1996 U.S. Dist. LEXIS 9516 (D.R.I. 1996).

— Mistrial.

Even though the prosecution’s unintentional nondisclosure of an FBI report was sufficient to justify granting of a mistrial, such nondisclosure did not preclude retrial since there was no prosecutorial conduct intended to goad defendant into requesting a mistrial. State v. Gordon, 508 A.2d 1339, 1986 R.I. LEXIS 464 (R.I. 1986).

Further prosecution of defendant for sexual assault charges was barred by the constitutional ban against double jeopardy where there was no manifest necessity for the trial justice’s declaration of a mistrial after sitting on the bench for only 51 minutes without consideration of the feasibility of less drastic sanctions for noncompliance with discovery procedures. State v. Fiske, 526 A.2d 1273, 1987 R.I. LEXIS 513 (R.I. 1987).

Where a mistrial is declared due to the excusal of a juror for health reasons and the trial record contains no evidence concerning the medical condition of the juror at the time of dismissal, an evidentiary hearing is required to determine the condition of the juror before resolving a defendant’s claim of double jeopardy based on a subsequent retrial. State v. Sanchez, 532 A.2d 956, 1987 R.I. LEXIS 553 (R.I. 1987).

Only where the governmental conduct in question is intended to “goad” the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion. State v. Perez, 605 A.2d 1305, 1992 R.I. LEXIS 69 (R.I. 1992).

Trial court properly denied defendant’s motion to dismiss a charge of second-degree sexual assault on double jeopardy grounds under R.I. Const. art. 1, § 7 and the Fifth Amendment to the United States Constitution because sufficient evidence supported the trial court’s finding that the prosecutor’s production during trial of a revised statement from the complaining witness was not intended to provoke a mistrial. State v. Rolle, 84 A.3d 1149, 2014 R.I. LEXIS 16 (R.I. 2014).

— Probation Violation Hearings.

When the defendant was convicted of different crimes in different courts and, while on probation for both sentences, is charged with committing a new offense, the state was required to file Super. Ct. R. Crim. Pro. Rule 32(f) violation reports in both the District and Superior Courts, since only the sentencing court has the authority to reinstate previously imposed suspended sentences. Furthermore, such a requirement does not violate the double jeopardy clause, which prohibits multiple prosecutions for the same offense, since a violation hearing is not a prosecution but is civil in nature. State v. Pinney, 672 A.2d 870, 1996 R.I. LEXIS 49 (R.I. 1996).

Collateral estoppel, under U.S. Const. amend. V, did not bar State from prosecuting defendant for firearms violations because, although the offenses had been tried in a probation violation hearing, an appeals court had quashed that judgment; thus it was a nullity and had no preclusive effect. State v. Santiago, 847 A.2d 252, 2004 R.I. LEXIS 82 (R.I. 2004).

— Retrial.

Where the judge erroneously revokes counsel’s permission to appear, then asks the defendant whether he wishes to proceed, represent himself, or obtain other counsel, and the defendant says he would like to engage other counsel, the judge may then take the case from the jury and set a new trial date. The new trial does not violate the protection against double jeopardy provided by this amendment. The important consideration, for purposes of the double jeopardy clause, is that the defendant retain primary control over the course to be followed after a serious trial court error, and unless the judge’s action is motivated by bad faith or undertaken to harass or prejudice the defendant, the double jeopardy clause does not prevent a retrial as long as the defendant is offered the choice of continuing. Sundel v. Justices of Superior Court, 728 F.2d 40, 1984 U.S. App. LEXIS 24969 (1st Cir.), cert. denied, 469 U.S. 827, 105 S. Ct. 108, 83 L. Ed. 2d 52, 1984 U.S. LEXIS 3185 (1984).

Defendant’s retrial did not violate the double jeopardy clause on the premise that the evidence at his original trial was “legally insufficient” to sustain his conviction, where there was never a finding that the evidence was legally insufficient to support the conviction. United States v. Arache, 946 F.2d 129, 1991 U.S. App. LEXIS 22932 (1st Cir. 1991), cert. denied, 503 U.S. 948, 112 S. Ct. 1507, 117 L. Ed. 2d 645, 1992 U.S. LEXIS 1898 (1992).

A retrial following a mistrial was not barred, where the record did not indicate any attempt by the prosecution or the court to goad defendant into seeking a mistrial. State v. Mallett, 604 A.2d 1263, 1992 R.I. LEXIS 65 (R.I. 1992).

Where the prosecution inadvertently failed to disclose relevant information to the defendants and the trial judge granted a mistrial after finding that manifest necessity had been established, the motion justice who denied the defendant’s motion to dismiss the retrial on double jeopardy grounds properly found that the trial justice acted out of manifest necessity given that the proceeding at best would have produced a verdict that could have been upset at will by one of the parties. State v. Bereube, 609 A.2d 961, 1992 R.I. LEXIS 139 (R.I. 1992).

Since the trial justice, in granting a new trial for the defendant convicted of assault with intent to commit sexual assault, specifically assessed the credibility of the witnesses and determined that he did not believe certain witnesses who claimed that the defendant was essentially sober and was thus capable of forming a specific intent, the justice was acting as a thirteenth juror. The justice did not determine that the evidence was legally insufficient, as would have been the case had he granted a judgment of acquittal. Therefore, double jeopardy principles did not bar a second trial. State v. Laperche, 617 A.2d 1371, 1992 R.I. LEXIS 218 (R.I. 1992).

Although first-degree murder and second-degree murder constitute the “same offense” under Rhode Island law, the defendant’s retrial for second-degree murder, the lesser-included offense, following his acquittal on the charge of first-degree murder, did not violate his constitutional rights against double jeopardy, since first-degree murder also requires proof of premeditation of more than a momentary duration and proof of deliberation, whereas second-degree murder does not, thus satisfying the applicable “same evidence” test. State v. Grabowski, 644 A.2d 1282, 1994 R.I. LEXIS 196 (R.I. 1994).

Reprosecution was not barred since the prosecution did not in any way deliberately intend to cause the resulting mistrial by eliciting improper testimony from a state trooper on the witness stand. State v. Beltre, 764 A.2d 190, 2000 R.I. LEXIS 208 (R.I. 2000).

Retrial on the charge of kidnapping did not violate double jeopardy, as there was not abuse of discretion by the trial judge when he determined that the jury was “genuinely deadlocked” after he had made a prudent examination of the jury’s progress, provided supplemental instructions, and requested that the jurors return to deliberations for a reasonable period. State v. Gordon, 30 A.3d 636, 2011 R.I. LEXIS 133 (R.I. 2011).

Defendant’s right to be free from double jeopardy was not violated because he merely asserted that admitting the acquitted conduct into evidence, under R.I. R. Evid. 404 (b), would force him to relitigate issues already decided by a valid judgment of acquittal, but defendant did not argue that the jury in the first trial necessarily decided the ultimate issue in count five, one of the first-degree sexual assault counts, which resulted in a deadlocked jury and was the only count for which the State sought a retrial; and his argument that admitting the acquitted conduct into evidence would force defendant to relitigate those same issues already decided by a valid judgment of acquittal conflated a double jeopardy contention with one that was evidentiary. State v. Forlasto, 217 A.3d 489, 2019 R.I. LEXIS 117 (R.I. 2019).

— Sentencing Proceedings.

The double jeopardy clause did not apply to prevent retrial of a sentence enhancement allegation in a noncapital sentencing proceeding. Monge v. California, 524 U.S. 721, 118 S. Ct. 2246, 141 L. Ed. 2d 615, 1998 U.S. LEXIS 4218 (1998).

Defendant’s convictions and sentences for using a firearm to commit second-degree murder and second degree murder did not violate double jeopardy because (1) each crime required proof of a fact the other did not, and (2) the legislature intended consecutive sentences under the circumstances. Linde v. State, 78 A.3d 738, 2013 R.I. LEXIS 135 (R.I. 2013).

— Separate and Distinct Offenses.

A sentence of an army court-martial imposing a fine and imprisonment upon an army officer charged with a conspiracy to defraud, and also with causing false and fraudulent claims to be made, did not put such officer twice in jeopardy. Carter v. McClaughry, 183 U.S. 365, 22 S. Ct. 181, 46 L. Ed. 236, 1902 U.S. LEXIS 722 (1902).

Selling and possessing intoxicating liquors are separate offenses and conviction of one does not bar a prosecution for another. Albrecht v. United States, 273 U.S. 1, 47 S. Ct. 250, 71 L. Ed. 505, 1927 U.S. LEXIS 676 (1927).

Making of same false entry in several books constitutes but a single offense, and conviction for one entry bars a prosecution for entry in another book, but it is otherwise as to false report as to the resources of the bank including the same transaction. United States v. Adams, 281 U.S. 202, 50 S. Ct. 269, 74 L. Ed. 807, 1930 U.S. LEXIS 375 (1930).

Convicting defendant for both assault with a deadly weapon pursuant to § 11-5-2 and possession of a pistol during the commission of a crime of violence pursuant to § 11-47-3 is unconstitutional, as both convictions stem from the same incident as defined by State v. Boudreau, 113 R.I. 497 , 322 A.2d 626 (1974), thereby violating the double jeopardy prohibition of this amendment. State v. Grullon, 117 R.I. 682 , 371 A.2d 265, 1977 R.I. LEXIS 1739 (1977).

Defendant’s contention that he was placed twice in jeopardy by being prosecuted for extortion pursuant to § 11-42-2 subsequent to a conviction for assault and battery pursuant to § 11-5-3 was without merit, since assault and battery, which is the intentional and unlawful application of the slightest force to the person of another, and extortion, which consists of a verbal threat to place a victim in peril of actual bodily harm accompanied by an intent to compel that victim to do an act against his will, require proof of different elements and hence do not satisfy the “same evidence” test applied by the court. State v. Davis, 120 R.I. 82 , 384 A.2d 1061, 1978 R.I. LEXIS 764 (1978).

Assault and escape under § 11-25-2 are distinct offenses and conviction under § 11-25-2 of both offenses did not place the defendant in double jeopardy. State v. Robalewski, 418 A.2d 817, 1980 R.I. LEXIS 1717 (R.I. 1980).

The prinicipal demarcation between criminal and civil contempt for purposes of the ban on double jeopardy is that in criminal contempt the purpose of sanctions imposed is to punish the contemnor for action in derogation of the authority and dignity of the court itself, whereas in civil contempt the purpose of the sanction imposed is to coerce the defendant into compliance with the court order and to compensate the complaining party for losses sustained as a result of the violation of the court order. Ventures Management Co. v. Geruso, 434 A.2d 252, 1981 R.I. LEXIS 1254 (R.I. 1981).

The state, by proving the elements of the crime of kidnapping, does not automatically prove the crime of assault with a dangerous weapon used in the kidnapping; therefore, the offenses do not merge under the double-jeopardy clause. State v. Ballard, 439 A.2d 1375, 1982 R.I. LEXIS 796 (R.I. 1982).

Defendant was not placed in double jeopardy when he was convicted for both assault with intent to rob and assault with intent to murder, because each offense requires proof of an element that the other does not. State v. Fournier, 448 A.2d 1230, 1982 R.I. LEXIS 1129 (R.I. 1982).

Where two crimes of violence — robbery and assault with a dangerous weapon — were committed at the same time as part of the same criminal transaction, the state could not single out the robbery as the underlying crime of violence for a charge of committing a crime of violence while armed and thereby evade the double-jeopardy violation that would result from using the assault charge as the underlying crime of violence. State v. Ashness, 461 A.2d 659, 1983 R.I. LEXIS 959 (R.I. 1983).

Defendant, who was convicted on two counts of first-degree sexual assault, is not placed in double jeopardy, where two separate acts, one occurring outdoors in the woods and one in a bathroom, properly constitute the basis for two separate charges of first-degree sexual assault. State v. Purro, 593 A.2d 450, 1991 R.I. LEXIS 133 (R.I. 1991).

An indictment charging 25 individual counts of bank fraud was not multiplicious and in violation of the double jeopardy clause, since each transaction in which bank provided an end loan to a buyer on the basis of a fraudulent representation of a down-payment constituted a single, independent execution of the scheme to defraud. United States v. Brandon, 17 F.3d 409, 1994 U.S. App. LEXIS 1505 (1st Cir.), cert. denied, 513 U.S. 820, 115 S. Ct. 81, 130 L. Ed. 2d 34, 1994 U.S. LEXIS 5581 (1994).

In determining whether a defendant is threatened with being twice prosecuted for the same offense, the “same evidence” test is applied; that is, whenever a defendant is charged under multiple statutory provisions based on a single criminal episode, that defendant may be prosecuted for each offense only if each crime requires proof of an element distinct from the other. There can be no doubt that assault with a dangerous weapon under § 11-5-2 and leaving the scene of an accident under § 31-26-1 require proof of different elements. State v. Sabetta, 672 A.2d 451, 1996 R.I. LEXIS 64 (R.I. 1996).

Prosecution of defendant for offense of possession of a firearm by a convicted felon following earlier prosecution for transporting a weapon with an obliterated serial number did not violate the prohibition against double jeopardy. United States v. Lanoue, 137 F.3d 656, 1998 U.S. App. LEXIS 3902 (1st Cir. 1998).

There was no double jeopardy violation under the Double Jeopardy Clauses of the federal and Rhode Island Constitutions in defendant’s conviction of assault with a dangerous weapon (ADW) and larceny since ADW was not a lesser included offense of larceny, and the ADW and larceny convictions were based on distinct acts as the larceny occurred after the ADW and was not related to the ADW, which was motivated by defendant’s rage against the victim. State v. Oliver, 68 A.3d 549, 2013 R.I. LEXIS 117 (R.I. 2013).

— Waiver.

Where defendant did not attempt to raise his double-jeopardy claim until he moved for acquittal or dismissal after the state had rested its case, his failure to present the double-jeopardy defense prior to trial constituted a waiver thereof under Super. Ct. R. Crim. P. Rule 12(b)(2) and precluded appellate review of the merits of his claim. State v. Lee, 502 A.2d 332, 1985 R.I. LEXIS 601 (R.I. 1985).

Due Process.

This provision is intended as a limitation upon the power of the United States in its dealing with citizens and relates to that class of rights the protection of which is peculiarly within the judicial branch of the government. United States v. Lee, 106 U.S. 196, 1 S. Ct. 240, 27 L. Ed. 171, 1882 U.S. LEXIS 1534 (1882), limited, Malone v. Bowdoin, 369 U.S. 643, 82 S. Ct. 980, 8 L. Ed. 2d 168, 1962 U.S. LEXIS 2148 (1962).

Due process in not a guaranty that every ruling of the court is correct, but it is a guaranty that the fundamental priniciples of justice under the law shall not be violated. State v. Rossi, 71 R.I. 284 , 43 A.2d 323, 1945 R.I. LEXIS 46 (1945).

After thirty day limitation period of § 45-32-22 has passed, the constitutional challenge under this amendment that, where building is taken for a public purpose but is not destroyed but just restored and then resold to another private owner, due process is denied, will not be heard. Corrado v. Providence Redevelopment Agency, 105 R.I. 470 , 252 A.2d 920, 1969 R.I. LEXIS 777 (1969), cert. denied, 396 U.S. 1022, 90 S. Ct. 595, 24 L. Ed. 2d 515, 1970 U.S. LEXIS 3402 (1970).

“Minimal rationality” was the proper level of scrutiny to be applied in testing the constitutionality of a provision in the Veterans’ Education and Employment Assistance Act of 1976 (P.L. 94-502, amending 38 U.S.C. § 1673(d)), since the act affected levels of educational benefits but did not completely deny educational opportunity, and therefore abridged no fundamental rights. Rolle v. Cleland, 435 F. Supp. 260, 1977 U.S. Dist. LEXIS 14659 (D.R.I. 1977).

Considered under “minimal rationality” test, the provisions of the Veterans’ Education and Employment Assistance Act of 1976 (P.L. 94-502, amending 38 U.S.C. § 1673(d)) barring benefits to veterans enrolled in courses in which more than 85% of the students are federally funded is constitutional, since it bears a rational relationship to the desired end of discouraging the establishment of worthless educational programs designed solely to attract unwary veterans. Rolle v. Cleland, 435 F. Supp. 260, 1977 U.S. Dist. LEXIS 14659 (D.R.I. 1977).

The standard employed to gauge whether a particular statutory term reasonably informs an individual of the criminality of his conduct is whether the disputed verbiage provides adequate warning to a person of ordinary intelligence that his conduct is illegal by common understanding and practice. State v. Authelet, 120 R.I. 42 , 385 A.2d 642, 1978 R.I. LEXIS 637 (1978).

When prison inmates assert interests which fall within the scope of protection of the due process clause, it is incumbent upon a reviewing court to balance those interests against the needs of prison officials in their efforts to maintain the safety and security of a correctional institution. Gomes v. Moran, 605 F.2d 27, 1979 U.S. App. LEXIS 11741 (1st Cir. 1979).

No constitutional rule dictates that the delay of due process procedures is impermissible in the context of a prison emergency. Gomes v. Moran, 605 F.2d 27, 1979 U.S. App. LEXIS 11741 (1st Cir. 1979).

A statute which classifies on the basis of age need only satisfy the “rational basis standard,” i.e., the state’s classification must rationally further the identified statutory purpose. Issarescu v. Cleland, 465 F. Supp. 657, 1979 U.S. Dist. LEXIS 14327 (D.R.I.), aff'd, 601 F.2d 572, 1979 U.S. App. LEXIS 13734 (1st Cir. 1979).

Where the state seeks to impose punishment without an adjudication of guilt, the pertinent constitutional guarantee is the due process clause. Cushing v. Tetter, 478 F. Supp. 960, 1979 U.S. Dist. LEXIS 11307 (D.R.I. 1979).

While the court does not have any particular expertise to determine what constitutes fitness for duty, a determination best left to the military, it does have expertise to determine whether that judgment was reached by a method comporting with the requirements of due process. Cushing v. Tetter, 478 F. Supp. 960, 1979 U.S. Dist. LEXIS 11307 (D.R.I. 1979).

A constitutional claim of sufficient magnitude to favor review of the decision to return serviceman to his former unit lies in the allegation that the return will result in the deprivation of life, liberty and adequate medical care without due process. Cushing v. Tetter, 478 F. Supp. 960, 1979 U.S. Dist. LEXIS 11307 (D.R.I. 1979).

Claim of serviceman that to send him back to his former unit would represent deliberate indifference to a serious medical need was cognizable under the Fifth Amendment. Cushing v. Tetter, 478 F. Supp. 960, 1979 U.S. Dist. LEXIS 11307 (D.R.I. 1979).

Since school committee acts as agent of state in fulfilling statutorily conferred duties, it has no standing to bring due process challenge to statute requiring it to provide bussing to students. Brown v. Elston, 445 A.2d 279, 1982 R.I. LEXIS 860 (R.I. 1982).

Retroactive repeal of statute [former § 30-21-3 ] conferring seniority rights or benefits on eligible veterans did not violate due process or effect an unconstitutional taking of property rights. Brennan v. Kirby, 529 A.2d 633, 1987 R.I. LEXIS 550 (R.I. 1987).

The protections of the Due Process Clauses in both the Fifth and Fourteenth Amendments apply only to the actions of federal and state government actors, respectively, and not private actors. Boyle v. Brown Univ., 881 F. Supp. 747, 1995 U.S. Dist. LEXIS 4980 (D.R.I. 1995).

An expectation that is not “property” for purposes of the takings clause may sometimes entitle the citizen to procedural protection and substantive protection against arbitrariness, before the expectation is cut off by government action. National Educ. Ass'n-Rhode Island by Scigulinsky v. Retirement Bd. of the R.I. Employees' Retirement Sys., 172 F.3d 22, 1999 U.S. App. LEXIS 5220 (1st Cir.), cert. denied, 528 U.S. 929, 120 S. Ct. 326, 145 L. Ed. 2d 254, 1999 U.S. LEXIS 6602 (1999).

Where the class of persons who were “evicted” were individuals who were never public employees, at least in the capacity for which the state pensions were sought, and were permitted to enter the system at bargain-basement prices while retaining their pensions as union employees, the choice to evict them, returning their contributions with interest, was not so patently arbitrary, irrational, or unrelated to a legitimate legislative purpose as to constitute a violation of substantive due process. National Educ. Ass'n-Rhode Island by Scigulinsky v. Retirement Bd. of the R.I. Employees' Retirement Sys., 172 F.3d 22, 1999 U.S. App. LEXIS 5220 (1st Cir.), cert. denied, 528 U.S. 929, 120 S. Ct. 326, 145 L. Ed. 2d 254, 1999 U.S. LEXIS 6602 (1999).

The due process clause grants no absolute right to be free from detention, even to those who have been convicted of no crime. Hermanowski v. Farquharson, 39 F. Supp. 2d 148, 1999 U.S. Dist. LEXIS 2240 (D.R.I. 1999).

Summary judgment was granted in favor of a federal official where the undisputed facts indicated that state, not federal, authorities carried out a search and seizure of property. Davis v. United States, 2000 U.S. Dist. LEXIS 2255 (D.R.I. Feb. 15, 2000).

— Bankruptcy.

The application of the Bankruptcy Reform Act, enacted November 6, 1978, effective October 1, 1979, to avoid an October 1978 lien is unconstitutional, depriving the lienholder of his previously established interest in the debtors’ property; while a lien created during the “gap period” — after the code’s enactment but before its effective date — is acquired with notice of the act’s future effect and is not entitled to fifth amendment protection. Danella v. Kenney Builder Prods. Co. (In re Danella), 42 B.R. 268, 1984 Bankr. LEXIS 5091 (Bankr. D.R.I. 1984).

— Business and Professions.

An act of congress making it unlawful for an attorney to receive more than a stated amount for prosecuting a claim for pension, is not invalid as an interference with the liberty of contract. Frisbie v. United States, 157 U.S. 160, 15 S. Ct. 586, 39 L. Ed. 657, 1895 U.S. LEXIS 2187 (1895).

A doctor has no cause of action under 42 U.S.C. § 1983 for the deprivation of a property interest in his privilege to supervise nurse midwives at a private hospital. Lowe v. Scott, 959 F.2d 323, 1992 U.S. App. LEXIS 4677 (1st Cir. 1992).

The refusal by the department of transportation to renew an applicant’s chauffeur’s license for failure to satisfy minimum vision requirements did not violate the applicant’s constitutional right to work under the fifth amendment to the United States Constitution and article 1, § 2 of the Rhode Island Constitution. Allard v. Department of Transp., 609 A.2d 930, 1992 R.I. LEXIS 100 (R.I. 1992).

Federal drug agents provided adequate notice of an administrative forfeiture proceeding by mailing notice to the address from which the property had been seized; the subsequent discovery that the mailed notice had been ineffective did not detract from the drug agents’ minimum provision of due process absent indications that agents should have known notice would be ineffective. Sarit v. United States Drug Enforcement Admin., 987 F.2d 10, 1993 U.S. App. LEXIS 2975 (1st Cir. 1993), cert. denied, 510 U.S. 888, 114 S. Ct. 241, 126 L. Ed. 2d 195, 1993 U.S. LEXIS 6014 (1993), overruled in part, Jones v. Flowers, 547 U.S. 220, 126 S. Ct. 1708, 164 L. Ed. 2d 415, 2006 U.S. LEXIS 3451 (2006).

Amendment to § 28-33-17(f) which provides cost of living adjustments to recipients of more than 52 weeks of workers’ compensation benefits does not violate the contract or taking clause of the United States Constitution even though it retroactively increases the workers’ compensation benefits an insurer is required to pay pursuant to insurance policies issued before the amendment was enacted. Liberty Mut. Ins. Co. v. Whitehouse, 868 F. Supp. 425, 1994 U.S. Dist. LEXIS 16869 (D.R.I. 1994) (decided under prior law codified at § 28-33-18.3 ).

— Civil Procedure.

Allowance of amendment nunc pro tunc was a denial of due process where original petition only sought information and amendment sought damages. Hart v. Wiltsee, 19 F.2d 903, 1927 U.S. App. LEXIS 2378 (1st Cir.), cert. denied, 275 U.S. 559, 48 S. Ct. 119, 72 L. Ed. 426, 1927 U.S. LEXIS 671 (1927).

The Constitution permits a jury to draw adverse inferences against a party in a civil suit based on its claim of the fifth amendment privilege. Likewise, constitutional concerns are not implicated when inferences are drawn from fifth amendment invocations by the nonparty witnesses. Putnam Resources v. Pateman, 757 F. Supp. 157, 1991 U.S. Dist. LEXIS 2217 (D.R.I. 1991).

A federal court’s in personam jurisdiction in federal question cases is constitutionally limited only by the due process clause of this amendment. The mechanism by which personal jurisdiction is obtained (service of process), however, places a statutory limitation on the extent of the court’s in personam jurisdiction. New England Health Care Employees Union, Dist. 1199 v. Fall River Nursing Home, Inc., 802 F. Supp. 674, 1992 U.S. Dist. LEXIS 15542 (D.R.I. 1992).

— — Government.

While a liberty interest of a government construction contractor was implicated where it was suspended from government work based on charges of fraud and dishonesty, a post-suspension hearing held within 30 days was sufficient to satisfy due process. Mainelli v. United States, 611 F. Supp. 606, 1985 U.S. Dist. LEXIS 19161 (D.R.I. 1985).

— — Lis Pendens.

Section 9-4-9 is not unconstitutional as a violation of the due process clauses of the United States and Rhode Island Constitutions since there is no significant taking of property and the extent of the state’s involvement in the filing of a notice of lis pendens is minimal. Darr v. Muratore, 143 B.R. 973, 1992 U.S. Dist. LEXIS 12794 (D.R.I. 1992).

Even if the filing of a notice of lis pendens constituted a taking with sufficient state involvement, the Rhode Island lis pendens procedure provides adequate constitutional safeguards since it specifies that a plaintiff shall give notice to all named parties within seven days after recording a notice of lis pendens, and a defendant may subsequently file a motion to quash an improperly filed lis pendens; there is no constitutional requirement that the landowner be given a hearing before the notice of lis pendens is filed. Darr v. Muratore, 143 B.R. 973, 1992 U.S. Dist. LEXIS 12794 (D.R.I. 1992).

— — Monetary Sanctions.

Although there is no per se requirement, notice and opportunity to be heard are desirable when monetary sanctions are imposed, and while a full hearing is not required for every sanction imposed by a court, the sanction must comport with procedural due process requirements. Williams v. United States (In re Williams), 188 B.R. 721, 1995 Bankr. LEXIS 1578 (Bankr. D.R.I. 1995).

— Corporations.

A criminal statute requiring profit corporation to pay wages weekly is not unconstitutional either as impairment of contract or otherwise as to such corporations as were chartered before its enactment where power to alter, amend or repeal corporate charters expressly was reserved to the general assembly. State v. Brown & Sharpe Mfg. Co., 18 R.I. 16 , 25 A. 246, 1892 R.I. LEXIS 1 (1892).

A corporation has no fifth amendment privilege to refuse to produce corporate records. United States v. Lawn Builders of New England, 856 F.2d 388, 1988 U.S. App. LEXIS 19164 (1st Cir. 1988).

Even assuming that a defendant corporation is a one-man corporation and its president is that one man, the corporate records are not shielded from production, nor can the president resist a subpoena for those records on the ground that the act of production would impermissibly infringe on his fifth amendment right against self-incrimination. United States v. Lawn Builders of New England, 856 F.2d 388, 1988 U.S. App. LEXIS 19164 (1st Cir. 1988).

— Criminal Procedure.

An act of congress allowing an appeal by the government from an order sustaining a demurrer to an indictment was within the power of congress. United States v. Heinze, 218 U.S. 532, 31 S. Ct. 98, 54 L. Ed. 1139, 1910 U.S. LEXIS 2047 (1910).

Where competency of defendant to stand trial was not determined until after June 22, 1964, the rule in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) was applicable. State v. Knott, 105 R.I. 71 , 249 A.2d 421, 1969 R.I. LEXIS 720 (1969).

Admission of evidence obtained without intelligent waiver of the privilege against self-incrimination was prejudicial error where it contributed to proof beyond a reasonable doubt. State v. Lachapelle, 112 R.I. 105 , 308 A.2d 467, 1973 R.I. LEXIS 960 (1973).

Due process mandates that all elements of a crime must be proved beyond a reasonable doubt in all criminal prosecutions. State v. Caron, 423 A.2d 823, 1980 R.I. LEXIS 1862 (R.I. 1980).

Due process requires that the jury must receive clear instructions that the prosecution must persuade them beyond a reasonable doubt that the killing was not in self-defense once the defendant produces evidence of self-defense. State v. Caron, 423 A.2d 823, 1980 R.I. LEXIS 1862 (R.I. 1980).

Jury instructions must be reviewed in the context of the entire charge to determine whether the legal principles controlling a crucial factual issue were outlined properly by the trial justice. State v. Caron, 423 A.2d 823, 1980 R.I. LEXIS 1862 (R.I. 1980).

Statements induced in violation of Miranda’s safeguards are appropriate for analysis under the “harmless beyond a reasonable doubt” test. United States v. Batista-Polanco, 927 F.2d 14, 1991 U.S. App. LEXIS 3205 (1st Cir. 1991).

In the context of both the Fourth and Fifth Amendments, evidence derived from sources separate from a constitutional violation need not be suppressed under the exclusionary rule. The question as to whether the inevitable-discovery exception is available arises after there has been a determination that an accused’s constitutional rights have been violated; when the evidence sought to be suppressed would inevitably have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible. State v. Barkmeyer, 949 A.2d 984, 2008 R.I. LEXIS 73 (R.I.), cert. denied, 555 U.S. 1071, 129 S. Ct. 740, 172 L. Ed. 2d 729, 2008 U.S. LEXIS 9079 (2008).

Defendant’s R.I. Gen. Laws § 10-9.1-1 application for postconviction relief was properly denied because defendant was provided with the precise proceeding that defendant had requested—to forgo oral argument and proceed on the papers duly submitted— and defendant received all the process that was due. Sifuentes v. State, 43 A.3d 49, 2012 R.I. LEXIS 58 (R.I. 2012).

Defendant’s second R.I. Gen. Laws § 10-9.1-1 application for postconviction relief was properly denied because defendant’s claims regarding newly discovered evidence, a jury note, a statute of limitations defense, and defendant’s sentence were prohibited by res judicata as found in R.I. Gen. Laws § 10-9.1-8 —as they could have been, but were not, raised in defendant’s first application for postconviction relief—and defendant had no constitutional or inherent right to parole and received due process at a parole board hearing. Lyons v. State, 43 A.3d 62, 2012 R.I. LEXIS 59 (R.I. 2012).

Defendant’s motion to suppress statements he made to a Massachusetts Department of Children and Families (DCF) investigator on grounds that his statements were involuntary and that his right to due process was violated was improperly granted because the investigator’s interview at defendant’s kitchen table was the antithesis of a coercive interrogation; there was no DCF policy requiring the investigator to give defendant the DCF brochure informing him of his right to counsel at the beginning of the interview, and it was not unconstitutional for the investigator to have waited until the end of the interview to give defendant the brochure; and defendant’s rights to counsel had not attached as he was not in custody and had not been charged with a crime. State v. Gouin, 182 A.3d 28, 2018 R.I. LEXIS 36 (R.I. 2018).

— — Appeals.

The four-part speedy trial test set out in Barker v. Wingo , 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) is not applicable to appellate delays. State v. Walker, 667 A.2d 1242, 1995 R.I. LEXIS 276 (R.I. 1995).

— — Civil Liability.

Section 12-28-5 , requiring the automatic entry of civil judgment against a person convicted of a felony, both on its face and as applied to a defendant who elects not to take the stand in his own defense at the criminal trial, does not violate that defendant’s constitutional rights of due process since the defendant had the opportunity to testify and elected not to testify. Seddon v. Bonner, 755 A.2d 823, 2000 R.I. LEXIS 166 (R.I. 2000).

Revocation of defendant’s probation for failure to pay restitution, due at the rate of $100,000 per year, was neither arbitrary and capricious nor a denial of due process, since it was based on considerable evidence that defendant had enough financial resources at the time the missed payment was due to have made the payment, but chose instead to spend it on luxuries. State v. LaRoche, 883 A.2d 1151, 2005 R.I. LEXIS 195 (R.I. 2005).

— — Coercion of Witnesses.

Even when a witness has been coerced into providing the police with a pretrial statement that implicates the accused, the mere fact that a witness has given the police such a statement during the investigation of a crime does not necessarily prevent that witness from testifying voluntarily at a trial in a manner consistent with the pretrial statement. State v. Garcia, 743 A.2d 1038, 2000 R.I. LEXIS 14 (R.I. 2000).

Persons who are mere witnesses to criminal acts do not enjoy the same federal due process protections when they are being interrogated while they are in police custody. State v. Garcia, 743 A.2d 1038, 2000 R.I. LEXIS 14 (R.I. 2000).

— — Delayed Prosecution.

To prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time. United States v. Cerrito, 612 F.2d 588, 1979 U.S. App. LEXIS 9509 (1st Cir. 1979).

Forty-four month preindictment delay in the case of two defendants charged with first-degree sexual assault is not prejudicial. State v. Vanasse, 593 A.2d 58, 1991 R.I. LEXIS 124 (R.I. 1991).

— — Discovery.

Defendant had not made the requisite showing of a Brady violation pursuant to U.S. Const. amend. V or a R.I. Super. Ct. R. Crim. P. 16 violation warranting a new trial. The record was devoid of any indication that the State deliberately failed to provide a copy of the transcript of an interview with a witness to defendant, and it was not even clear from the record that the prosecutor was in possession of the transcript at the time of defendant’s murder trial. State v. McManus, 941 A.2d 222, 2008 R.I. LEXIS 21 (R.I. 2008).

Trial justice did not clearly err in determining that the State did not commit a Brady violation by failing to disclose to defendant that a prosecutor had dialed an anonymous 911 caller’s phone number and spoken with an individual prior to trial. The justice determined that the prosecutors never concealed anything of material importance from defendant, either deliberately or, for that matter, inadvertently, and the 911 caller’s unwillingness to cooperate with the State was not material to defendant’s guilt or punishment. State v. Wash., 189 A.3d 43, 2018 R.I. LEXIS 102 (R.I. 2018).

— — Grand Jury.

White defendant had standing to object to discrimination against black persons in the selection of grand jurors. Campbell v. Louisiana, 523 U.S. 392, 118 S. Ct. 1419, 140 L. Ed. 2d 551, 1998 U.S. LEXIS 2787 (1998).

— — Jury Instructions.

A habeas corpus petitioner failed to show that the jury charge altering the language in the indictment changed the elements of the offense charged and that he was convicted of a crime not charged in the grand jury indictment. Therefore, he failed to establish a violation of the Fifth or Sixth Amendments to the United States Constitution that would warrant granting his petition based on the ground that the indictment was constructively amended. Gordon v. Vose, 879 F. Supp. 179, 1994 U.S. Dist. LEXIS 19929 (D.R.I. 1994).

The district court did not violate the defendant’s fifth amendment privilege against self-incrimination by stating to the jury, following the close of the government’s case, that: “You may return to the jury room for your afternoon recess and we will hear the rest of the story.” United States v. Gabriele, 63 F.3d 61, 1995 U.S. App. LEXIS 23940 (1st Cir. 1995).

Where 11-person jury was deadlocked 10 to 1 in favor of guilt, under the totality of the circumstances, it was a denial of due process for the trial justice to give an Allen charge without disclosing the split; if the defense had known that the majority was strongly tilted toward guilt, counsel might have argued for a mistrial instead of approving the giving of the Allen charge, so, since defendants had not had an opportunity to seek a mistrial, they were entitled to a new trial. State v. Luanglath, 863 A.2d 631, 2005 R.I. LEXIS 2 (R.I. 2005).

— — Lineups.

In determining whether the lineup identification procedure violated a defendant’s due process rights, a two-part test is employed. First, whether the makeup of the lineup and the procedure utilized in the subsequent identification process were unnecessarily or impressibly suggestive must be considered. Second, if the lineup and identification is found to have used any unnecessary or improper suggestiveness, then the court must undertake to determine if any identification made has independent reliability, despite the suggestive nature of the lineup. State v. Walker, 667 A.2d 1242, 1995 R.I. LEXIS 276 (R.I. 1995).

The fact that the defendant was the only person in the lineup wearing white pants was not per se suggestive, but only a factor to be considered with all the other circumstances leading to any identification. State v. Walker, 667 A.2d 1242, 1995 R.I. LEXIS 276 (R.I. 1995).

— — Mandatory Presumptions.

A mandatory presumption, which requires the fact finder to infer an elemental fact such as intent or knowledge from proof of a basic fact such as the existence of an act or record, violates the due process clause if the presumed fact is an element of the offense at issue and the government would be expected to shoulder the burden of persuasion on that point. United States v. Grigsby, 85 F. Supp. 2d 100, 2000 U.S. Dist. LEXIS 1996 (D.R.I. 2000).

— — Preliminary Proceedings.

The right not to speak embodied in the Fifth Amendment is not equivalent to a right to volunteer information to the government under a grant of immunity. Flint v. Mullen, 499 F.2d 100, 1974 U.S. App. LEXIS 7952 (1st Cir.), cert. denied, 419 U.S. 1026, 95 S. Ct. 505, 42 L. Ed. 2d 301, 1974 U.S. LEXIS 3417 (1974).

It is constitutionally permissible to hold a defendant without bail in order to prevent danger to the community. Witt v. Moran, 572 A.2d 261, 1990 R.I. LEXIS 58 (R.I. 1990).

Section 12-13-5.1 , which provides that no absolute right to bail exists for defendants charged with the delivery of a controlled substance when the proof of guilt is evident or the presumption great, is constitutional. However, the trial justice may not rely solely on the statute in denying a defendant’s bail. In deciding whether to grant bail, the trial justice must make findings of fact on the record that relate to the individual defendant’s dangerousness. Witt v. Moran, 572 A.2d 261, 1990 R.I. LEXIS 58 (R.I. 1990).

— — Prisoners.

Statute providing for reduced time for donation of blood creates a protected liberty interest that cannot be taken away by transfer to an out-of-state prison without due process. Raso v. Moran, 551 F. Supp. 294, 1982 U.S. Dist. LEXIS 15802 (D.R.I. 1982).

A federal marshal’s examination of the defendant’s teeth and gums on the morning of his trial does not violate the defendant’s fifth amendment rights, where the case does not involve compelled testimony. United States v. Maceo, 873 F.2d 1, 1989 U.S. App. LEXIS 5143 (1st Cir.), cert. denied, 493 U.S. 840, 110 S. Ct. 125, 107 L. Ed. 2d 86, 1989 U.S. LEXIS 4079 (1989).

Just as a prisoner’s right to call witnesses in a disciplinary proceeding is not unlimited, neither is the discretion of prison officials to deny such a request. The reason for not acceding to a request to call witnesses must be a legitimate one, and it must be expressed. Morgan v. Ellerthorpe, 785 F. Supp. 295, 1992 U.S. Dist. LEXIS 2573 (D.R.I. 1992).

Defendant administrators and correctional officers did not violate a prisoner’s due process rights by placing him in punitive segregation prior to his disciplinary hearing since the prisoner’s complaint contained no allegation linking the defendants to the prehearing segregation nor did it allege that the defendants or their subordinates who may have participated in the “booking” process acted improperly. Morgan v. Ellerthorpe, 785 F. Supp. 295, 1992 U.S. Dist. LEXIS 2573 (D.R.I. 1992).

A deputy assistant director of a prison did not infringe on a prisoner’s due process rights by failing to notify him in a timely fashion that his appeal from the disciplinary board’s decision was denied since the prescribed time limit was purely procedural and any failure to adhere to it did not deprive the prisoner of any liberty he otherwise would have enjoyed. Morgan v. Ellerthorpe, 785 F. Supp. 295, 1992 U.S. Dist. LEXIS 2573 (D.R.I. 1992).

The rule established in Morris v. Travisono , 449 F. Supp. 149 (D.R.I. 1980) that any inmate appearing before a disciplinary board may upon request have a recording made of the hearing does not contain any mandatory language that would establish a protected liberty interest under the Due Process Clause; thus, failure to locate the tape and proceeding without the tape recording of the prisoner’s disciplinary hearing was not a deprivation of a constitutional right. Parker v. Vose, 875 F. Supp. 954, 1994 U.S. Dist. LEXIS 19593 (D.R.I. 1994).

The presence as the chair of the prisoner’s disciplinary board of an official who, a week prior, had observed delivery of impermissibly folded laundry to certain inmates in the cellblock and had questioned the prisoner about it did not deny the prisoner due process right of fair, impartial and neutral decisionmaker since the official was at best only tangentially involved with the prior incident. Parker v. Vose, 875 F. Supp. 954, 1994 U.S. Dist. LEXIS 19593 (D.R.I. 1994).

— — Right to Counsel.

Where defendant accused of murder was interrogated without first being informed that an attorney would be appointed for him free of charge if he could not afford one, mere fact that defendant was employed as a carpenter and might have been able to hire an attorney to come to the police station for an hour or two while he was being interrogated did not satisfy prosecution’s burden of proving (if it was going to use defendant’s statements from the interrogation) that defendant had ample funds with which to secure an attorney. State v. Gendreau, 106 R.I. 332 , 259 A.2d 855, 1969 R.I. LEXIS 632 (1969).

Where defendant, accused of murder, arrested, and interrogated prior to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 694, 10 A.L.R. 3d 974 (1966), but tried after such decision, was informed prior to interrogation that he had a right to remain silent, that any statement he made could be used against him, and that he had a right to have an attorney, but was not informed that an attorney would be appointed for him free of charge if he could not afford one, statements made by him during such interrogation could not be used against him in absence of showing by state that he had ample funds with which to secure an attorney who would not only represent him during interrogation, but also provide him with all services which might thereafter be necessary, including those incidental to murder trial. State v. Gendreau, 106 R.I. 332 , 259 A.2d 855, 1969 R.I. LEXIS 632 (1969).

Statements made by defendant, though voluntary, to disguised undercover agent placed in his cell in order to obtain further information, after defendant had already indicated that he wished to consult with an attorney and that he did not wish to say anything before seeing an attorney, were inadmissible in evidence. State v. Travis, 116 R.I. 678 , 360 A.2d 548, 1976 R.I. LEXIS 1324 (1976).

An arrestee must express, not a haphazard desire to speak with another unspecified individual, but a specific request to consult with an attorney to invoke his right to counsel. State v. Killay, 430 A.2d 418, 1981 R.I. LEXIS 1146 (R.I. 1981).

Where attorney from public defender’s office was, without defendant’s knowledge, requested by defendant’s family to represent and advise defendant after his arrest for murder, and thereupon called police station and informed police that she would act as defendant’s counsel if police intended to question defendant, failure of police to inform defendant of the call did not invalidate defendant’s subsequent waiving of his rights and giving of confession where proper Miranda warnings were first given. State v. Burbine, 451 A.2d 22, 1982 R.I. LEXIS 1013 (R.I. 1982).

The failure of the police to inform a suspect in custody that his attorney was seeking to see him did not deprive the suspect of information essential to his ability to knowingly waive his Fifth Amendment rights to remain silent and to the presence of counsel. Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410, 1986 U.S. LEXIS 32 (1986).

There is no constitutional right to counsel at the breathalyzer stage of a driving-while-under-the-influence proceeding. In re Kean, 520 A.2d 1271, 1987 R.I. LEXIS 410 (R.I. 1987).

Since a subject asserting his right to counsel need not speak with perfect formality, but may use any manner of colloquial speech, so long as his statement would be reasonably understood as a request for an attorney, a question by the defendant during a videotaped statement asking “Can I get a Lawyer?” had the potential for invoking his constitutional right to counsel, and remand was required for the trial court to make a more exact analysis of the interrogation. State v. Dumas, 750 A.2d 420, 2000 R.I. LEXIS 103 (R.I. 2000).

— — Sentence.

Where assistant United States district attorney in charge of prosecution assured the accused that the indictment was intended to be drawn solely under the misdemeanor provision of the statute violated, but the sentence imposed was for violation of the felony provision, the accused was deprived of due process of law. Clemons v. United States, 137 F.2d 302, 1943 U.S. App. LEXIS 2804 (4th Cir. 1943).

The sentencing court’s conclusion as to defendant’s being beyond rehabilitation did not amount to an erroneous assumption of constitutional magnitude. United States v. Santamaria, 788 F.2d 824, 1986 U.S. App. LEXIS 24595 (1st Cir. 1986).

Reimposition of an erroneously suspended life sentence violated petitioner’s due process rights because the illegality of the suspension and its subsequent correction were unforeseeable and the correction of the illegally suspended sentence, more than six months after petitioner’s actual release from prison, caused concrete injury of a magnitude sufficient to offend the due process clause. DeWitt v. Ventetoulo, 803 F. Supp. 580, 1992 U.S. Dist. LEXIS 16263 (D.R.I. 1992), aff'd, 6 F.3d 32, 1993 U.S. App. LEXIS 25570 (1st Cir. 1993).

The state is not obliged by the constitution to parole its prisoners, but having done so, it is obliged to afford them due process when it revokes parole. DeWitt v. Ventetoulo, 6 F.3d 32, 1993 U.S. App. LEXIS 25570 (1st Cir. 1993), cert. denied, 511 U.S. 1032, 114 S. Ct. 1542, 128 L. Ed. 2d 193, 1994 U.S. LEXIS 2904 (1994).

The constitution does not prevent multiple sanctions for one offense when the sanctions are specified in advance by congress and imposed in reasonable proximity to the conviction. United States v. Hurley, 63 F.3d 1, 1995 U.S. App. LEXIS 19318 (1st Cir. 1995), cert. denied, 517 U.S. 1105, 116 S. Ct. 1322, 134 L. Ed. 2d 474, 1996 U.S. LEXIS 1990 (1996).

— — Trial.

Prohibition of compelling a defendant to testify against himself was not violated by court’s direction that defendant try on a jacket allegedly worn the day of the crime. State v. Lerner, 112 R.I. 62 , 308 A.2d 324, 1973 R.I. LEXIS 957 (1973).

Where there was constitutional error at trial the state must show it was harmless beyond reasonable doubt and defendant was not required to show the remark prejudicial to his case. State v. Sherman, 113 R.I. 77 , 317 A.2d 445, 1974 R.I. LEXIS 1140 (1974).

Under neither the Constitution of the United States nor the Constitution of Rhode Island is a juvenile who has been found to be a delinquent entitled as a matter of constitutional right, to speak before sentence is imposed. In re Wilkinson, 116 R.I. 163 , 353 A.2d 199, 1976 R.I. LEXIS 1260 (1976).

Prosecutor’s statement during summation that defendant had by his alleged wrongdoing defiled a symbol of his religion, though error, was cured by trial judge’s prompt and definite instruction to disregard it. United States v. Goldman, 563 F.2d 501, 1977 U.S. App. LEXIS 11166 (1st Cir. 1977), cert. denied, 434 U.S. 1067, 98 S. Ct. 1245, 55 L. Ed. 2d 768, 1978 U.S. LEXIS 727 (1978).

Where the judge conferred privately with minor female prosecuting witness, without knowledge of the jury, in rape case, to dispel the embarrassment which had caused her to refuse to answer a question, the defendant’s due process rights were not violated. LaChappelle v. Moran, 699 F.2d 560, 1983 U.S. App. LEXIS 30817 (1st Cir. 1983).

Record was barren of any evidence of a manifest necessity that would have justified the declaration of a mistrial due to the sudden illness of a juror, where there was a strong possibility that the juror could have returned to his duties after a few days away from the courthouse. State v. Sanchez, 541 A.2d 455, 1988 R.I. LEXIS 59 (R.I. 1988).

— — Trial Evidence.

Trial court’s refusal to adjourn the case until the following day to secure the attendance of an important defense witness was an abuse of discretion and a denial of due process of law. State v. Rossi, 71 R.I. 284 , 43 A.2d 323, 1945 R.I. LEXIS 46 (1945).

Where only evidence of victim in robbery case on the issue of defendant’s guilt or innocence was uncontradicted and unimpeached, and it contained no inherent improbabilities or contradictions affecting its weight or credibility, arresting officers’ testimony that after advising defendant of his constitutional right, said nothing, though a comment on his right was harmless error. State v. Geter, 108 R.I. 437 , 276 A.2d 274, 1971 R.I. LEXIS 1287 (1971).

Alleged discrepancies in a government witness’s testimony as to the nature of defendant’s arrest and the exact amount of cocaine he had allegedly offered to sell the witness did not amount to perjury, and even if they did the error would be harmless since the alleged perjured statements did not bear on issues material to the case. United States v. Underwood, 440 F. Supp. 499, 1977 U.S. Dist. LEXIS 13136 (D.R.I. 1977).

Statements by the prosecutor and police testimony touching on defendant’s history of drug dealing constituted prejudicial error in a prosecution for possession and delivery of drugs, which error was not cured by the trial judge’s instructions to the jury to ignore such comments. State v. Colvin, 425 A.2d 508, 1981 R.I. LEXIS 1032 (R.I. 1981).

Variance between dates in charge and proof is not a violation of due process when the dates are not a substantive element of the crime charged. United States v. Morris, 700 F.2d 427, 1983 U.S. App. LEXIS 30192 (1st Cir.), cert. denied, 461 U.S. 947, 103 S. Ct. 2128, 77 L. Ed. 2d 1306, 1983 U.S. LEXIS 263 (1983).

Admission of statement of defendant made during booking was inconsequential and cumulative in view of other overwhelming evidence of guilt. United States v. Morris, 700 F.2d 427, 1983 U.S. App. LEXIS 30192 (1st Cir.), cert. denied, 461 U.S. 947, 103 S. Ct. 2128, 77 L. Ed. 2d 1306, 1983 U.S. LEXIS 263 (1983).

Town’s failure to preserve a sample of defendant’s breath used in breathalyzer test did not violate defendant’s due process rights under either the federal or Rhode Island constitution. State v. Williams, 480 A.2d 1383, 1984 R.I. LEXIS 596 (R.I. 1984).

Competent and otherwise admissible evidence of another crime is not made inadmissible by reason of the defendant’s acquittal of that crime. State v. Bernier, 491 A.2d 1000, 1985 R.I. LEXIS 495 (R.I. 1985).

Trial justice committed reversible error in refusing to instruct the jury that the defendant had been acquitted of the criminal activity which a witness testified to at trial. State v. Bernier, 491 A.2d 1000, 1985 R.I. LEXIS 495 (R.I. 1985).

The trial court inappropriately allowed as evidence the admission of several guns seized from a third party’s property in a prosecution for conspiracy to commit murder where the guns were not involved in the case at hand and where their admission was unduly prejudicial to the defendants. State v. Brash, 512 A.2d 1375, 1986 R.I. LEXIS 533 (R.I. 1986).

The trial court erred in allowing two law enforcement agents to offer “bolstering testimony” concerning their conversations with the state’s key witness about conspiracy to commit murder when the witness had not yet testified concerning the events. State v. Brash, 512 A.2d 1375, 1986 R.I. LEXIS 533 (R.I. 1986).

Where defendants unsuccessfully attempted to prevent the admission of hearsay testimony, the defendants had the right to full and effective cross-examination of the witnesses once the out-of-court statements had been admitted without waiving their appellate rights on the issue of admissibility. State v. Brash, 512 A.2d 1375, 1986 R.I. LEXIS 533 (R.I. 1986).

The good-faith destruction of fire inspector’s notes containing possible exculpatory material in a felony murder prosecution did not amount to a violation of the defendant’s due-process right to a fair trial. State v. Garcia, 643 A.2d 180, 1994 R.I. LEXIS 182 (R.I. 1994).

Military rule of evidence making polygraph evidence inadmissible in court martial proceedings did not unconstitutionally abridge the right of the accused to present a defense. United States v. Scheffer, 523 U.S. 303, 118 S. Ct. 1261, 140 L. Ed. 2d 413, 1998 U.S. LEXIS 2303 (1998).

The rule that exclusion of evidence alleged to have been obtained illegally must be sought procedurally by a motion to suppress heard prior to trial applies to all district court criminal trials. State v. Francis, 719 A.2d 858, 1998 R.I. LEXIS 304 (R.I. 1998).

Absent a showing of bad faith on the part of the state, a lost evidence instruction is not required each time potentially exculpatory evidence has been lost. State v. Vanover, 721 A.2d 430, 1998 R.I. LEXIS 310 (R.I. 1998).

Where the defendant could have removed any question as what lost photographic evidence might have revealed because he possessed critical comparable evidence, there was no showing of prejudice, and no lost evidence instruction to the jury was required. State v. Vanover, 721 A.2d 430, 1998 R.I. LEXIS 310 (R.I. 1998).

Trial court properly denied defendant’s motion for a new trial and his due process rights were not violated because he knew before trial that his co-defendant had been involved in break-ins in Massachusetts and that she was not charged in return for her cooperation, more information would have been merely cumulative and impeaching, the trial court did not overlook or misconceive relevant and material evidence, and defendant received the co-defendant’s written cooperation agreement. State v. Drew, 79 A.3d 32, 2013 R.I. LEXIS 151 (R.I. 2013).

— — Waiver.

Two categories of outrageous misconduct cases exist: (1) those in which the government is an active participant in the crime, and (2) those involving the subversion of a defendant’s attorney to prosecute that defendant. Defendant was not entitled to the defense of outrageous government conduct in a situation where the State brokered an agreement with an attorney to grant transactional immunity to a witness in exchange for information leading to defendant’s arrest and indictment despite the fact that the attorney later represented defendant in the same matter; since the attorney was not in a client relationship with defendant when the agreement with the witness was brokered and since it was the witness and not the attorney who gave the government information, the government committed no misconduct and did not interfere with defendant’s attorney-client relationship. State v. Laurence, 848 A.2d 238, 2004 R.I. LEXIS 100 (R.I. 2004).

— Damages.

When town officials, acting under color of state law, illegally altered a referendum, distributed a “new,” invalid zoning ordinance to the relevant departments and boards, violated a Superior Court order regarding the plaintiffs’ right to a hearing, and directly interfered with the plaintiffs’ constitutionally protected property interests, the plaintiffs’ substantive and procedural due process rights were violated. Moreover, this egregious conduct was undertaken with express animus toward the plaintiffs and without actual or legal basis. This manifest denial of plaintiffs’ procedural and substantive due process rights entitled plaintiffs to damages under 42 U.S.C. §§ 1983 and 1988. L.A. Ray Realty v. Town Council, 698 A.2d 202, 1997 R.I. LEXIS 240 (R.I. 1997).

— Deportation.

Deportable aliens, those who have been ordered deported after having gained admission to the United States, are afforded greater procedural and substantive due process rights than excludable aliens, those who have sought admission to the country but have not secured it. Hermanowski v. Farquharson, 39 F. Supp. 2d 148, 1999 U.S. Dist. LEXIS 2240 (D.R.I. 1999).

If a substantive due process violation is to be found in the practice of detention pending deportation, it can only be based upon a finding that the detention, under a particular set of factual circumstances, is excessive in relation to the governmental purposes behind the restriction. Hermanowski v. Farquharson, 39 F. Supp. 2d 148, 1999 U.S. Dist. LEXIS 2240 (D.R.I. 1999).

Because the plaintiff’s fifth amendment substantive due process claim in his habeas corpus petition did not implicate the adequacy of the procedures afforded him by the federal immigration statute or the validity of the decision of the Immigration and Naturalization Service in applying the provisions of that statute, he was not statutorily required to exhaust his administrative remedies prior to seeking judicial relief. Hermanowski v. Farquharson, 39 F. Supp. 2d 148, 1999 U.S. Dist. LEXIS 2240 (D.R.I. 1999).

Since there existed the potential for many more years of detention while awaiting the occurrence of the remote possibility of deportation, due to the refusal of the potential country of destination to accept the deportee, and since the danger posed by the deportee was of the milder sort, in that his convictions were for purse-snatching and low-level narcotics violations, the continued physical detention of the deportee in a prison pending deportation was excessive in relation to the governmental objectives that regulatory detention sought to advance. Hermanowski v. Farquharson, 39 F. Supp. 2d 148, 1999 U.S. Dist. LEXIS 2240 (D.R.I. 1999).

Because continued detention by the INS did not serve a legitimate government interest since there was little possibility that the detainee would be deported in the foreseeable future, the absolute restraint on his personal freedom constituted a violation of his right to liberty. Fernandes v. INS, 79 F. Supp. 2d 44, 1999 U.S. Dist. LEXIS 20357 (D.R.I. 1999).

— Fish, Game, and Wildlife.

Sections 20-1-2 and 20-3-1 — 20-3-6 , authorizing regulation of the shellfish industry by the Marine Fisheries Council, are not vague and overbroad so as to violate the due process clause. Healey v. Bendick, 628 F. Supp. 681, 1986 U.S. Dist. LEXIS 29398 (D.R.I. 1986).

The federal fish and wildlife service’s actions in closing a beach area used by nude bathers, in order to preserve the nesting habitat of a threatened bird species, does not infringe upon any associational right, property right or other constitutionally recognized right secured to the bathers by the first, fifth, and/or ninth amendments. New England Naturist Ass'n v. Larsen, 692 F. Supp. 75, 1988 U.S. Dist. LEXIS 8264 (D.R.I. 1988).

State law undermined the plaintiff’s property interest claim in a raccoon, since a permit is required for such an animal taken from the wild to be lawfully possessed, and the failure of the plaintiff to obtain a permit meant that the animal could not be reduced to private ownership and lawful possession as property. Bilida v. McCleod, 211 F.3d 166, 2000 U.S. App. LEXIS 9136 (1st Cir. 2000).

There was no property interest giving rise to a right to due process since the unlicensed raccoon, kept as a family pet, was per se contraband. Bilida v. McCleod, 41 F. Supp. 2d 142, 1999 U.S. Dist. LEXIS 585 (D.R.I. 1999), aff'd, 211 F.3d 166, 2000 U.S. App. LEXIS 9136 (1st Cir. 2000).

— Forfeiture Proceedings.

In the case of an administrative or summary forfeiture, constitutional due process requirements are satisfied by providing interested parties with notice and the opportunity to force the government to institute judicial forfeiture proceedings. Sarit v. Drug Enforcement Admin., 759 F. Supp. 63, 1991 U.S. Dist. LEXIS 3103 (D.R.I. 1991).

— Licenses.

Consideration of accident reports by the Division of Motor Vehicles at license suspension hearings does not violate the due-process rights of license holders. Craig v. Pare, 497 A.2d 316, 1985 R.I. LEXIS 581 (R.I. 1985).

— Monopolies.

Right of owner of property to fix prices at which he will sell it is an inherent attribute of the property itself within the protection of this amendment. Old Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 U.S. 183, 57 S. Ct. 139, 81 L. Ed. 109, 1936 U.S. LEXIS 20 (1936).

— Property Interest.

Physician providing services under federal governmental insurance program for the aged had dubious claim to a protectable property interest in his continuing eligibility to bill for reimbursement under the program where HEW secretary had the right of recoupment. Kechijian v. Califano, 458 F. Supp. 159, 1978 U.S. Dist. LEXIS 15005 (D.R.I. 1978), aff'd, 621 F.2d 1, 1980 U.S. App. LEXIS 19688 (1st Cir. 1980).

Where a federal statute creates a property interest for Aid to Families with Dependent Children (AFDC) recipients in “pass-through” child support payments, the recipients may not be deprived of that property interest without due process of law. Kenyon v. Sullivan, 761 F. Supp. 951, 1991 U.S. Dist. LEXIS 5121 (D.R.I. 1991).

— Railroads and Carriers.

Retirement act treating all railroads as a single employer and pooling their assets regardless of individual obligations and varying conditions, cannot be justified as consistent with due process. Railroad Retirement Bd. v. Alton R.R., 295 U.S. 330, 55 S. Ct. 758, 79 L. Ed. 1468, 1935 U.S. LEXIS 1087 (1935).

The provision of the Motor Carrier Act (F.C.A., title 49, § 321(c)), for the appointment of an agent upon whom process may be made does not contravene the due process clause though no provision is made for the agent to communicate such process to the principal. Sansbury v. Schwartz, 41 F. Supp. 302, 1941 U.S. Dist. LEXIS 2657 (D.D.C. 1941).

— Sex Offender Registration.

Defendant was afforded a meaningful hearing to review his classification as a Level III, high risk sexual offender under the Sexual Offender Registration and Community Notification Act, and he failed to show that his right to procedural due process was violated because the superior court magistrate considered all written memoranda and exhibits submitted prior to the hearing, and both attorneys were granted the opportunity to develop their arguments and present further evidence at the hearing; defendant agreed to proceed on the basis of written memoranda and oral argument, and his attorney raised no objection to the scope of the hearing, nor did she inform the magistrate that she intended to call any witnesses to the stand. State v. Dennis, 29 A.3d 445, 2011 R.I. LEXIS 125 (R.I. 2011).

— Students.

Suspensions by tax-supported universities involve state action, thus due process requires notice and some opportunity for hearing before a student at a tax-supported college is expelled for misconduct. Gorman v. University of Rhode Island, 646 F. Supp. 799, 1986 U.S. Dist. LEXIS 19163 (D.R.I. 1986), aff'd in part and rev'd in part, 837 F.2d 7, 1988 U.S. App. LEXIS 402 (1st Cir. 1988).

Brown University’s equal protection challenge to a Title IX claim alleging gender discrimination in the allocation and administration of its intercollegiate athletic resources was invalid, as it failed to prove that full and effective accommodation of Title IX requirements worked any disadvantage to male athletes. Cohen v. Brown Univ., 991 F.2d 888, 1993 U.S. App. LEXIS 7912 (1st Cir. 1993). See also Cohen v. Brown Univ., 879 F. Supp. 185, 1995 U.S. Dist. LEXIS 4278 (D.R.I. 1995).

— Taxation.

P.S. 1882, ch. 43, § 6 [§ 44-5-15 ], providing for only one notice of the time and place of the meeting of the assessors, and that every person and body corporate liable to taxation shall bring in their account, does not violate due process. McTwiggan v. Hunter, 19 R.I. 265 , 33 A. 5, 1895 R.I. LEXIS 70 (1895).

No want of due process results because congress chooses to impose an excise tax on artificially colored oleomargarine and not upon natural butter artificially colored. McCray v. United States, 195 U.S. 27, 24 S. Ct. 769, 49 L. Ed. 78, 1904 U.S. LEXIS 818 (1904).

An act of congress imposing a corporation tax was not invalid as taking property without due process of law. Flint v. Stone Tracy Co., 220 U.S. 107, 31 S. Ct. 342, 55 L. Ed. 389, 1911 U.S. LEXIS 1664 (1911).

Revenue act requiring foreign corporations to pay taxes only on income earned in this country, while domestic corporations are required to pay tax on entire income wherever earned, does not violate due process. National Paper & Type Co. v. Bowers, 266 U.S. 373, 45 S. Ct. 133, 69 L. Ed. 331, 1924 U.S. LEXIS 2678 (1924).

Practice of congress making income tax acts retroactive for relative short periods so as to include profits from transactions consummated while such statutes are in process of enactment is consistent with due process. United States v. Hudson, 299 U.S. 498, 57 S. Ct. 309, 81 L. Ed. 370, 1937 U.S. LEXIS 10 (1937).

The jeopardy assessment device available to the Internal Revenue Service upon a determination that collection of taxes allegedly owed by a taxpayer may be in jeopardy does not deny due process or equal protection, in light of notice, expedited administrative review and judicial review provided by statute. Revis v. United States, 558 F. Supp. 1071, 1983 U.S. Dist. LEXIS 19149 (D.R.I. 1983).

Tax refund intercept mechanism authorizing the federal government to transfer tax overpayments of those allegedly delinquent in spousal or child support to the state was in derogation of the due process rights of the taxpayers to notice and to an opportunity to be heard at a meaningful time and in a meaningful manner. Marcello v. Regan, 574 F. Supp. 586, 1983 U.S. Dist. LEXIS 11899 (D.R.I. 1983).

Res judicata prevented the relitigation in federal court of a claim that federal and state constitutional and statutory rights were violated by the repeal of a state tax exemption for certain pension income. Keating v. Rhode Island, 785 F. Supp. 1094, 1992 U.S. Dist. LEXIS 3068 (D.R.I. 1992).

Just Compensation.

In view of the combination of the words “just” and “compensation” in this amendment there can be no doubt that the compensation must be a full and perfect equivalent for the property taken. Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S. Ct. 622, 37 L. Ed. 463, 1893 U.S. LEXIS 2234 (1893).

This amendment does not undertake to socialize all losses, but only those which result from a taking of property. United States v. Willow River Power Co., 324 U.S. 499, 65 S. Ct. 761, 89 L. Ed. 1101, 1945 U.S. LEXIS 2623 (1945).

Denial of application to alter fresh water wetlands may be attacked on appeal as a violation of constitutional right not to have property taken without just compensation. J. M. Mills, Inc. v. Murphy, 116 R.I. 54 , 352 A.2d 661, 1976 R.I. LEXIS 1244 (1976).

A substantial denial of access to land is a compensable taking under both the United States and Rhode Island Constitutions. Palazzolo v. Rahill, 121 R.I. 31 , 394 A.2d 690, 1978 R.I. LEXIS 748 (1978).

When use regulations are reasonably necessary to protect the public health and safety, they constitute permissible exercises of the police power which did not require compensation. Milardo v. Coastal Resources Management Council, 434 A.2d 266, 1981 R.I. LEXIS 1263 (R.I. 1981).

A regulation depriving an owner of all beneficial use of his property is confiscatory and requires compensation. Milardo v. Coastal Resources Management Council, 434 A.2d 266, 1981 R.I. LEXIS 1263 (R.I. 1981).

Claims against state and local governments under the federal just compensation clause are not ripe for federal review until the aggrieved party has exhausted the procedures which the state affords for obtaining recompense for the alleged confiscation. Golemis v. Kirby, 632 F. Supp. 159, 1985 U.S. Dist. LEXIS 12888 (D.R.I. 1985).

The comprehensive zoning ordinance passed by the town of Narragansett on November 16, 1987, was the zoning law applicable to the Black Point property at the time it was condemned in 1989, not the special exception obtained under the old zoning ordinance, since the property owner had failed to proceed with the proposed condominium development. Therefore, the value of the land at the time of condemnation could not include the proposed condominium development, because that was an illegal use under the new zoning ordinance. Ocean Rd. Partners v. State, 612 A.2d 1107, 1992 R.I. LEXIS 179 (R.I. 1992).

— Damages.

Owner of property taken by eminent domain is not entitled to compensation for any element resulting subsequently to or because of the taking. Olson v. United States, 292 U.S. 246, 54 S. Ct. 704, 78 L. Ed. 1236, 1934 U.S. LEXIS 710 (1934).

For fixtures and permanent equipment destroyed or depreciated in value by the taking, the respondent is entitled to compensation. United States v. General Motors Corp., 323 U.S. 373, 65 S. Ct. 357, 89 L. Ed. 311, 1945 U.S. LEXIS 2537 (1945).

When the body empowered to act under the right of eminent domain is not required to make a formal taking, damages are assessed as of the date of initial physical interference with the rights for which compensation is given. Gorham v. Public Bldg. Auth., 612 A.2d 708, 1992 R.I. LEXIS 178 (R.I. 1992).

In assessing the date of taking with respect to the property in question, absent a prior physical intrusion on the property by the public building authority, the date upon which title passed to the authority and upon which the taking occurred could be none other than the date upon which title vested in the authority. Gorham v. Public Bldg. Auth., 612 A.2d 708, 1992 R.I. LEXIS 178 (R.I. 1992).

— Interest.

The Fifth Amendment and the Rhode Island Constitution require the payment of interest as an element of just compensation when the date of taking of the property precedes the payment of the award. Tennessee Gas Pipeline Co. v. 104 Acres of Land, 780 F. Supp. 82, 1991 U.S. Dist. LEXIS 17589 (D.R.I. 1991).

— Taking.

Where real estate is actually invaded by superinduced additions of water, earth, sand or other material, or by having any artificial structure placed upon it, so as to effectively destroy or impair its usefulness, it is a taking within the meaning of this amendment. Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166, 20 L. Ed. 557, 1871 U.S. LEXIS 1325 (1872).

The mere location of a battery is not an appropriation of the property within the range of its guns. Peabody v. United States, 231 U.S. 530, 34 S. Ct. 159, 58 L. Ed. 351, 1913 U.S. LEXIS 2531 (1913).

While the legislature may legalize what otherwise would be a public nuisance, it may not confer immunity from action for a private nuisance of such a character as to amount in effect to a taking of private property for public use. Richards v. Washington Terminal Co., 233 U.S. 546, 34 S. Ct. 654, 58 L. Ed. 1088, 1914 U.S. LEXIS 1221 (1914).

Mere fact that value of property has been lessened because of demolition of buildings on adjacent condemned property is not sufficient to present a cognizable claim for taking property without compensation. E & J, Inc. v. Redevelopment Agency of Woonsocket, 122 R.I. 288 , 405 A.2d 1187, 1979 R.I. LEXIS 2158 (1979).

One who seeks to establish a taking has the burden of persuasion in seeking to be compensated for an alleged economic loss. Davis v. Wood, 444 A.2d 190, 1982 R.I. LEXIS 839 (R.I. 1982).

Use regulations that are reasonably necessary to protect the public health and safety are permissible exercises of the police power which do not require compensation provided that they do not become arbitrary, destructive, or confiscatory. Annicelli v. South Kingstown, 463 A.2d 133, 1983 R.I. LEXIS 1010 (R.I. 1983).

The distinction bewteen the exercise of the police power and the power of eminent domain is the use to which the property is put and the degree of damage to the property owner. Annicelli v. South Kingstown, 463 A.2d 133, 1983 R.I. LEXIS 1010 (R.I. 1983).

Ecological or environmental legislation may constitute a taking when all beneficial use of the property affected is denied to the landowner. Annicelli v. South Kingstown, 463 A.2d 133, 1983 R.I. LEXIS 1010 (R.I. 1983).

When a restriction on a property’s use is so great that the landowner ought not to bear the burden for the public good, the restriction is looked upon as a constructive taking. Annicelli v. South Kingstown, 463 A.2d 133, 1983 R.I. LEXIS 1010 (R.I. 1983).

Zoning ordinance establishing “High Flood Danger” district constituted a taking of plaintiff’s land requiring compensation where the permissible and excepted uses under the ordinance were unavailable to plaintiff. Annicelli v. South Kingstown, 463 A.2d 133, 1983 R.I. LEXIS 1010 (R.I. 1983).

Where the public utilities commission properly determined that the costs incurred by a utility through an arrangement with its affiliate were unreasonable, ordering a refund under § 39-3-13.1 was not a confiscatory taking in violation of this provision. Block Island Power Co. v. Public Utils. Comm'n, 505 A.2d 652, 1986 R.I. LEXIS 420 (R.I. 1986).

The constitution does not prohibit the taking of private property; it prohibits the taking of private property without just compensation. Q.C. Constr. Co. v. Verrengia, 700 F. Supp. 86, 1988 U.S. Dist. LEXIS 13448 (D.R.I. 1988).

A plaintiff cannot bring a federal action seeking just compensation under the takings clause of this amendment for a temporary taking of property by regulation where the plaintiff does not seek compensation through available state procedures or the plaintiff fails to demonstrate that no means of obtaining compensation exists. Q.C. Constr. Co. v. Verrengia, 700 F. Supp. 86, 1988 U.S. Dist. LEXIS 13448 (D.R.I. 1988).

Retroactive effect of the repeal of former § 30-21-3 , which provided for enhanced seniority in employment for veterans, does not give rise to compensation rights under the takings clause of the fifth amendment. Hoffman v. City of Warwick, 909 F.2d 608, 1990 U.S. App. LEXIS 12536 (1st Cir. 1990).

Statutory preferences or benefits conferred upon veterans do not give rise to compensable property rights. Hoffman v. City of Warwick, 909 F.2d 608, 1990 U.S. App. LEXIS 12536 (1st Cir. 1990).

Statute “freezing” medical malpractice insurance rates fails to pass muster under the takings clause of the fifth amendment where it sets rates at an arbitrary level which are so unreasonable as to be confiscatory. Medical Malpractice Joint Underwriting Ass'n v. Paradis, 756 F. Supp. 669, 1991 U.S. Dist. LEXIS 1759 (D.R.I. 1991).

Absentee owners of property, which is the subject of a civil in rem forfeiture proceeding after marijuana was discovered on the property, lose nothing by lack of a personal preseizure notice, where they are not evicted and their relationship with the property is impaired no more than it would be if a lis pendens is solely relied upon. United States v. One Parcel of Real Prop. Known as Plat 20, Lot 17, Great Harbor Neck, 769 F. Supp. 445, 1991 U.S. Dist. LEXIS 10136 (D.R.I. 1991), aff'd, 960 F.2d 200, 1992 U.S. App. LEXIS 4419 (1st Cir. 1992).

The mere passage of legislation authorizing acquisition of property by eminent domain is ordinarily not sufficient, in and of itself, to constitute a taking. Gorham v. Public Bldg. Auth., 612 A.2d 708, 1992 R.I. LEXIS 178 (R.I. 1992).

A seizure did not amount to a governmental taking without compensation in violation of the fifth amendment where the government acted within its statutory authority when it seized the defendant’s property, which had been used to grow marijuana. United States v. One Parcel of Real Property with Bldgs., 960 F.2d 200, 1992 U.S. App. LEXIS 4419 (1st Cir. 1992).

Plaintiff failed to prove allegations of a takings claim resulting from the purchase by plaintiff of property known to be wetlands and the subsequent denial by the Department of Environmental Management of the applications for development of that property. Alegria v. Keeney, 687 A.2d 1249, 1997 R.I. LEXIS 28 (R.I. 1997).

Where the state created a procedure through which a property owner may seek just compensation, but the plaintiff had not applied for such compensation, he could not maintain an action for deprivation of the fifth amendment’s takings clause. D'Ambra v. City of Providence, 21 F. Supp. 2d 106, 1998 U.S. Dist. LEXIS 15560 (D.R.I. 1998).

Pension payments actually made to retirees became their property and were protected against takings, even if the payments were unquestionably a gift. National Educ. Ass'n-Rhode Island by Scigulinsky v. Retirement Bd. of the R.I. Employees' Retirement Sys., 172 F.3d 22, 1999 U.S. App. LEXIS 5220 (1st Cir.), cert. denied, 528 U.S. 929, 120 S. Ct. 326, 145 L. Ed. 2d 254, 1999 U.S. LEXIS 6602 (1999).

Before a court can decide a Takings claim involving contract rights, it must first decide if there is an impairment of the underlying contract. Parella v. Retirement Bd. of the R.I. Employees' Retirement Sys., 173 F.3d 46, 1999 U.S. App. LEXIS 7488 (1st Cir. 1999).

Because plaintiff retirees failed to establish a contractual right to withheld benefits, they could not show that the state took their “property” when it withheld those benefits pursuant to the Cap Act. Parella v. Retirement Bd. of the R.I. Employees' Retirement Sys., 173 F.3d 46, 1999 U.S. App. LEXIS 7488 (1st Cir. 1999).

Plaintiff’s claim based upon the takings clause was misplaced where he averred that the taking of property was an unlawful governmental action rather than a rightful exercise of the government’s eminent domain power. Davis v. United States, 2000 U.S. Dist. LEXIS 2255 (D.R.I. Feb. 15, 2000).

Where there has been no physical invasion of property, there can only be a per se taking if the owner has been deprived of all beneficial and reasonable use of his land. Palazzolo v. State, 746 A.2d 707, 2000 R.I. LEXIS 50 (R.I. 2000), aff'd in part and rev'd in part, 533 U.S. 606, 121 S. Ct. 2448, 150 L. Ed. 2d 592, 2001 U.S. LEXIS 4910 (2001).

Because the requirement that landowners seek approval from the planning board before subdividing their land was lawful and was enacted pursuant to due process of law, owners were required to exhaust all administrative remedies in seeking approval of their proposed use before proceeding with any takings action. Petrone v. Town of Foster, 769 A.2d 591, 2001 R.I. LEXIS 94 (R.I. 2001).

Superior court’s order of condemnation pursuant to the quick-take provisions of R.I. Gen. Laws § 42-64-9 was declared void and the airport parking garage lessee’s contract rights were restored because the taking did not meet the criteria for a legitimate public use where it was motivated by a desire for increased revenue, not for a public purpose as required under the Takings Clause set forth in U.S. Const. Amend. V and R.I. Const. art. 1, § 16 . R.I. Econ. Dev. Corp. v. Parking Co. , L.P., 892 A.2d 87, 2006 R.I. LEXIS 22 (R.I. 2006).

Association’s takings claim based on ordinances suspending retirees’ cost of living adjustment benefit failed because (1) the claim was analyzed as a regulatory taking, and (2) the ordinances effectuated only a limited suspension of a small part of the overall pension retirement benefits and were prospective. Cranston Police Retirees Action Comm. v. City of Cranston, 208 A.3d 557, 2019 R.I. LEXIS 80 (R.I.), cert. denied, 140 S. Ct. 652, 205 L. Ed. 2d 386, 2019 U.S. LEXIS 7455 (2019).

Trial court properly granted a city summary judgment on police and fire department retirees’ claim under the Takings Clause because a cost-of-living suspension represented the denial of an expectancy on the part of the retirees and not the removal of tangible property already given to them. Andrews v. Lombardi, 231 A.3d 1108, 2020 R.I. LEXIS 57 (R.I. 2020).

— — Property Rights.

The owner of a shopping center may obtain an injunction against solicitation on its property of signatures for a nominating petition, where it maintained a consistent, nondiscriminatory policy against solicitations. Homart Dev. Co. v. Fein, 110 R.I. 372 , 293 A.2d 493, 1972 R.I. LEXIS 926 (1972).

One hearing that satisfies the due process clause prior to the purported taking of property is all that the constitution requires. Parente v. Town of West Warwick, 685 F. Supp. 873, 1988 U.S. Dist. LEXIS 4172 (D.R.I. 1988), aff'd, 868 F.2d 522, 1989 U.S. App. LEXIS 2413 (1st Cir. 1989).

Where there are adequate state remedies to compensate a plaintiff for the loss of property he has suffered, the mandates of the due process clause are satisfied. Parente v. Town of West Warwick, 685 F. Supp. 873, 1988 U.S. Dist. LEXIS 4172 (D.R.I. 1988), aff'd, 868 F.2d 522, 1989 U.S. App. LEXIS 2413 (1st Cir. 1989).

The statutory priorities set forth in the Rhode Island Depositors Economic Protection Act of 1991 do not amount to an unconstitutional taking of private property. In re Advisory Opinion to the Governor (DEPCO II), 593 A.2d 1356, 1991 R.I. LEXIS 173 (R.I. 1991).

Creating an indemnity agreement or requiring depositors to contribute a portion of their deposits to assist in an acquisition is necessary to the type of transfers contemplated by the Depositors Economic Protection Act of 1991 (chapter 116 of title 42) and does not impair the obligation of contracts, does not constitute a taking of private property for a public use without just compensation, and does not constitute a denial to any person of the equal protection of the laws. In re Advisory Opinion to the Governor (DEPCO II), 593 A.2d 1356, 1991 R.I. LEXIS 173 (R.I. 1991).

A claim that the Eviction Act, §§ 36-9.1-1 and 36-9.1-2 , which evicted from membership in the Retirement System any individual who became a member based solely on repealed § 36-9-33, constitutes a taking of teacher union employees’ private property without just compensation in contravention of the Taking Clause of the Fifth Amendment survived a motion to dismiss since the alleged value of the extinguished retirement benefits was greater than the amount of money that would be returned to the employees by the statute. National Educ. Association-Rhode Island by Scigulinsky v. Retirement Bd. of the R.I. Emples. Retirement Sys., 890 F. Supp. 1143, 1995 U.S. Dist. LEXIS 9592 (D.R.I. 1995).

The period during which a town refused to rezone plaintiff’s parcel of land was not a sufficient governmental interference with plaintiff’s property so as to amount to a taking. Brunelle v. Town of S. Kingstown, 700 A.2d 1075, 1997 R.I. LEXIS 251 (R.I. 1997).

Protection under the takings clause does not extend to mere unilateral expectations, even if they are entirely plausible expectations of economic benefit. National Educ. Ass'n-Rhode Island by Scigulinsky v. Retirement Bd. of the R.I. Employees' Retirement Sys., 172 F.3d 22, 1999 U.S. App. LEXIS 5220 (1st Cir.), cert. denied, 528 U.S. 929, 120 S. Ct. 326, 145 L. Ed. 2d 254, 1999 U.S. LEXIS 6602 (1999).

Presentment or Indictment.

The indictment referred to in this amendment is the presentation to the proper court, under oath, by a grand jury, duly impaneled of a charge describing an offense against the law for which the party charged may be punished. Ex parte Bain, 121 U.S. 1, 7 S. Ct. 781, 30 L. Ed. 849, 1887 U.S. LEXIS 2019 (1887), overruled in part, United States v. Miller, 471 U.S. 130, 105 S. Ct. 1811, 85 L. Ed. 2d 99, 1985 U.S. LEXIS 200 (1985), overruled in part, United States v. Cotton, 535 U.S. 625, 122 S. Ct. 1781, 152 L. Ed. 2d 860, 2002 U.S. LEXIS 3565 (2002).

The Constitution requires an indictment as a prerequisite to a trial, and such indictment is prima facie evidence of the existence of probable cause. Beavers v. Henkel, 194 U.S. 73, 24 S. Ct. 605, 48 L. Ed. 882, 1904 U.S. LEXIS 874 (1904).

The provision of this amendment, requiring the presentment or indictment of a grand jury, does not take up unto itself the local law as to how the grand jury should be made up and raise the latter to a constitutional requirement. In re Moran, 203 U.S. 96, 27 S. Ct. 25, 51 L. Ed. 105, 1906 U.S. LEXIS 1568 (1906).

This amendment does not require the indictment to be presented to the grand jury in a body. Breese v. United States, 226 U.S. 1, 33 S. Ct. 1, 57 L. Ed. 97, 1912 U.S. LEXIS 2126 (1912).

Withdrawal of part of the counts was not a denial of presentment of grand jury. Salinger v. United States, 272 U.S. 542, 47 S. Ct. 173, 71 L. Ed. 398, 1926 U.S. LEXIS 22 (1926).

The indictment requirement found in the Fifth Amendment is not binding on the states. State v. Rawlinson, 526 A.2d 1278, 1987 R.I. LEXIS 508 (R.I. 1987).

Attorney General’s notice of his intention to seek a sentence of life imprisonment against defendant in his charge for domestic murder, which notice was served within 20 days of defendant’s arraignment, satisfied due process because there was no grand jury indictment requirement upon the states and accordingly, the fact that the charge seeking life imprisonment was not contained in defendant’s indictment was not fatal. State v. Edwards, 810 A.2d 226, 2002 R.I. LEXIS 217 (R.I. 2002), cert. denied, 538 U.S. 980, 123 S. Ct. 1808, 155 L. Ed. 2d 670, 2003 U.S. LEXIS 2991 (2003).

Defendant was not denied a fair trial because the counts in an indictment for first-degree child molestation sexual assault were not duplicitous, and a bill of particulars made clear that a single act was charged in each of the counts. Furthermore, defense counsel was afforded considerable latitude on cross-examination to explore with the complaining witness dates, times, locations, and circumstances regarding the different and disparate instances that were alleged in the indictment. Pierce v. Wall, 941 A.2d 189, 2008 R.I. LEXIS 14 (R.I. 2008).

— Capital and Infamous Crimes.

Imprisonment in a state prison or penitentiary, with or without hard labor, is an infamous punishment, and a crime punishable by such imprisonment is an infamous offense. Mackin v. United States, 117 U.S. 348, 6 S. Ct. 777, 29 L. Ed. 909, 1886 U.S. LEXIS 1847 (1886); United States v. DeWalt, 128 U.S. 393, 9 S. Ct. 111, 32 L. Ed. 485, 1888 U.S. LEXIS 2226 (1888); In re Claasen, 140 U.S. 200, 11 S. Ct. 735, 35 L. Ed. 409, 1891 U.S. LEXIS 2453 (1891).

— Dismissal.

The essential testimony given by a witness was found to be truthful and consistent by the trial jury, in spite of the fact that the defendant pointed out inconsistencies and alleged inaccuracies in her grand jury testimony. In light of these determinations, there was no basis to fault the trial justice in her refusal to grant the defendant’s motion to dismiss the indictment. State v. Ellis, 619 A.2d 418, 1993 R.I. LEXIS 15 (R.I. 1993).

— Excepted Cases.

Cases involving infamous crimes arising in the land and naval forces are subject to the rules for the government and regulation of these forces, which under Art. I, § 8, congress is empowered to make. Kurtz v. Moffitt, 115 U.S. 487, 6 S. Ct. 148, 29 L. Ed. 458, 1885 U.S. LEXIS 1861 (1885).

The provision as to indictment or presentment does not apply to courts-martial. Kahn v. Anderson, 255 U.S. 1, 41 S. Ct. 224, 65 L. Ed. 469, 1921 U.S. LEXIS 1834 (1921).

Self-Incrimination.

A statute requiring a motorist colliding with an unattended vehicle to leave in or on such vehicle a written statement of his name and address and the circumstances of the collision does not require such motorist to thereby give evidence of his violation of motor vehicle or other laws in violation of this amendment. State v. Lemme, 104 R.I. 416 , 244 A.2d 585, 1968 R.I. LEXIS 662 (1968).

Where accused is a prime suspect in one crime and was questioned about another crime and confessed to the first during interrogation about the second, he was involved in a sequence of criminal acts or pattern of criminal conduct and should have been instructed that he had a right to remain silent on the first case. State v. Knott, 105 R.I. 71 , 249 A.2d 421, 1969 R.I. LEXIS 720 (1969).

In case tried before decisions of Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) and State v. Mendes, 99 R.I. 606 , 210 A.2d 50 (1965), where accused was interrogated from afternoon of March 13th to late afternoon of March 14th with no sleep but where he was offered refreshments and police did not evidence a strong determination to get confession and where he was not threatened or intimidated during interrogation and where it was not shown that he was intellectually inferior to police, and where it was not shown that he was without experience in dealing with police questioning when suspected of a crime, the totality of circumstances did not cause him to make involuntary statements against his will in violation of his constitutional rights under this amendment. Ruggiero v. Langlois, 106 R.I. 15 , 255 A.2d 731, 1969 R.I. LEXIS 589 (1969).

If there was any prejudice to a witness who was ordered by the court to testify in the trial of defendant, his alleged accomplice, in connection with a murder the witness had pleaded guilty to, such error was personal to the witness and not grounds for a meritorious exception by defendant. State v. Espinosa, 109 R.I. 221 , 283 A.2d 465, 1971 R.I. LEXIS 1044 (1971).

While court must refrain from placing upon the witness the burden of establishing the incriminatory nature of responses called for in order to allow the witness to refuse responding in order to avoid self-incrimination, a witness will not be excused from answering where the questions do not show that self-incrimination is possible. State v. Hasney, 115 R.I. 210 , 341 A.2d 729, 1975 R.I. LEXIS 1144 (1975).

Case did not involve compelled testimony where University of Rhode Island standards governing disciplinary hearings neither required nor prohibited the drawing of an adverse inference from the silence of an accused; in that situation, the appellee’s testimony would be entirely voluntary and subsequently admissible in criminal proceedings. Gabrilowitz v. Newman, 582 F.2d 100, 1978 U.S. App. LEXIS 10570 (1st Cir. 1978).

Where defendant, accompanied by his father, complied with a police request to appear at the police station for questioning, at the conclusion of which he left the station house without having any restriction placed upon his freedom to depart or to go where he wished, and where he later testified that he did not feel that he was then under arrest, the failure to give defendant Miranda warnings prior to the questioning did not make inadmissible confessions obtained two days later. State v. Johnson, 119 R.I. 749 , 383 A.2d 1012, 1978 R.I. LEXIS 618 (1978).

Where the defendant on direct examination gave, in substance, a line-by-line recitation of what he had told police while in custody, and the finding of guilt by the jury was predicated on this and other witnesses’ incriminating testimony, the possibility of the defendant’s having been given deficient Miranda warnings and not informed of his right to call off the interrogation at any time he desired was properly disregarded by the trial justice in denying defendant’s motion for a new trial on these grounds. State v. Gianoulos, 122 R.I. 67 , 404 A.2d 81, 1979 R.I. LEXIS 2065 (1979).

The protections against self-incrimination afforded under the Fifth Amendment are personal. In making an assessment of whether these personal protections have been violated, the totality of relevant circumstances is considered. State v. Bello, 417 A.2d 902, 1980 R.I. LEXIS 1715 (R.I. 1980).

The jury must consider if the state has shown, by clear and convincing evidence, that defendant was apprised of his rights and made a voluntary confession. State v. Bello, 417 A.2d 902, 1980 R.I. LEXIS 1715 (R.I. 1980).

The different considerations surrounding impeaching statements and defendant confessions do not mandate a separate judicial inquiry into the voluntariness of a witness’s prior, inconsistent statement and a defendant’s constitutional rights were not violated by the admission of the statement without a prior hearing. State v. Vargas, 420 A.2d 809, 1980 R.I. LEXIS 1817 (R.I. 1980).

The fifth amendment proscribes compelled self-incrimination, not incriminating statements. United States v. Brian, 507 F. Supp. 761, 1981 U.S. Dist. LEXIS 10625 (D.R.I. 1981).

The constitutional privilege against self-incrimination extends not only to disclosures that would support a conviction but also to disclosures that would constitute a link in a chain of evidence needed to initiate a prosecution. Roberts v. Communications Inv. Club, 431 A.2d 1206, 1981 R.I. LEXIS 1180 (R.I. 1981).

Although it is true that the privilege against self-incrimination should be upheld if the answer to a question would create a link in a chain of evidence which might be utilized in order to prosecute the witness for criminal conduct, it is necessary that the trial justice make a determination of whether relevant questions could have a reasonable possibility of establishing the hazard of incrimination. State v. Pari, 430 A.2d 429, 1981 R.I. LEXIS 1159 (R.I. 1981).

Once it is clear from the implications of the question in the setting in which it is asked that a responsive answer to the question or an explanation why it cannot be answered might be dangerous because an injurious disclosure could result, it is the duty of the court to refrain from placing upon the witness the burden of establishing the incriminatory nature of responses to the question by making disclosures that in themselves would be incriminatory. State v. Ahmadjian, 438 A.2d 1070, 1981 R.I. LEXIS 1423 (R.I. 1981).

An order requiring the defendant to testify at his codefendant’s trial, after he has been granted immunity, does not violate his Fifth Amendment rights, where the federal immunity statute protects him from any unconstitutional use of his compelled testimony against him. United States v. Underwood, 880 F.2d 612, 1989 U.S. App. LEXIS 10692 (1st Cir. 1989).

Where defendant’s noncustodial station-house confession to arson was not produced by misleading and coercive tactics during interrogation, admission of the self-incriminatory portions of secretly recorded audio and video tape did not violate his fifth amendment right against self-incrimination. State v. Marini, 638 A.2d 507, 1994 R.I. LEXIS 67 (R.I. 1994).

The introduction of grand jury testimony at an Officers’ Bill of Rights hearing (chapter 28.6 of title 42) could subject the officer only to liability for the potential loss of employment — a consequence to which the privilege against self-incrimination does not apply. In re Denisewich, 643 A.2d 1194, 1994 R.I. LEXIS 202 (R.I. 1994).

A family court’s order that financial records from an earlier divorce action be unsealed and released as public information did not constitute a violation against self-incrimination, since the privilege against self-incrimination had no application to the controversy. Providence Journal Co. v. Clerk of the Family Court, 643 A.2d 210, 1994 R.I. LEXIS 193 (R.I. 1994).

Concern with foreign prosecution is beyond the scope of the self-incrimination clause. United States v. Balsys, 524 U.S. 666, 118 S. Ct. 2218, 141 L. Ed. 2d 575, 1998 U.S. LEXIS 4210 (1998).

Where there was no evidence that, even had his lawyer called a witness to the stand, the man would have testified, and where the district court accepted the lawyer’s explanation that he did not subpoena the witness because he believed the witness would likely have asserted the fifth amendment privilege against self-incrimination, the court did not err in finding that a non-conflict motive informed trial counsel’s refusal to subpoena the witness. Familia-Consoro v. United States, 160 F.3d 761, 1998 U.S. App. LEXIS 29671 (1st Cir. 1998).

Where defendant was on a bridge, threatening suicide, after having committed domestic murder, his statements to police were not the product of coercive government conduct, but were spontaneous statements that did not require suppression pursuant to the protections afforded by Miranda . State v. Edwards, 810 A.2d 226, 2002 R.I. LEXIS 217 (R.I. 2002), cert. denied, 538 U.S. 980, 123 S. Ct. 1808, 155 L. Ed. 2d 670, 2003 U.S. LEXIS 2991 (2003).

— Acts of Court and Counsel.

To protect defendant’s fifth amendment rights, improper remark by state must be countered immediately by the court in terms such that the jurors clearly realize they can draw no inferences and reach no presumptions due to defendant’s failure to testify in his own defense. State v. Sherman, 113 R.I. 77 , 317 A.2d 445, 1974 R.I. LEXIS 1140 (1974).

Because the prejudice to an accused is the same regardless of who comments on his failure to testify, it is for the same reasons that a prosecutor may not comment on an accused’s election to remain silent, counsel for a codefendant also may not comment. State v. Gibbons, 418 A.2d 830, 1980 R.I. LEXIS 1732 (R.I. 1980).

A prosecutor may not comment on a defendant’s failure to call witnesses. State v. Taylor, 425 A.2d 1231, 1981 R.I. LEXIS 1043 (R.I. 1981).

Cautionary instructions must (1) identify the prosecutor’s conduct as improper, (2) unequivocally indicate that the jury must disregard it, and (3) unequivocally indicate that since the defendant has no duty to present witnesses or any other evidence, his failure to do so cannot be construed as an admission that the evidence, if produced, would have been adverse. State v. Taylor, 425 A.2d 1231, 1981 R.I. LEXIS 1043 (R.I. 1981).

It is fundamentally unfair and a deprivation of due process to allow arrested person’s silence following arrest to be used to impeach explanation subsequently offered at trial. State v. Smith, 446 A.2d 1035, 1982 R.I. LEXIS 904 (R.I. 1982).

Where the witness invoked the self-incrimination privilege under U.S. Const. amend. V, the witness became unavailable, such that the Sixth Amendment right to confrontation was inapplicable; the trial court did not err in refusing to allow defendant to call the witness before the jury due to the witness’s determined unavailability. State v. Ramirez, 936 A.2d 1254, 2007 R.I. LEXIS 130 (R.I. 2007).

— Comment on Failure to Testify.

Prosecutor’s statement during closing argument that a government theory had gone uncontested in cross-examination came “perilously close” to commenting on defendant’s failure to testify on his own behalf, since defendant was the only witness whose testimony could have refuted the theory; however, the prosecutor’s remarks fell short of reversible error because they were limited to the failure of defense to refute government arguments in cross-examination, and because the trial judge issued appropriate instructions. United States v. Goldman, 563 F.2d 501, 1977 U.S. App. LEXIS 11166 (1st Cir. 1977), cert. denied, 434 U.S. 1067, 98 S. Ct. 1245, 55 L. Ed. 2d 768, 1978 U.S. LEXIS 727 (1978).

Remarks by a prosecutor which might have been construed as a reference to defendant’s failure to testify did not necessarily call for reversal. State v. Andrews, 120 R.I. 771 , 390 A.2d 926, 1978 R.I. LEXIS 723 (1978).

Assessment of the propriety of prosecutorial argument to a jury requires review of the questioned statement in context and in light of attendant circumstances, rather than in isolation, and ascertainment of its meaning not in how it is read from the printed page, but in how a jury composed of ordinarily intelligent lay persons would understand it as they listened to the prosecutor’s closing argument. State v. Andrews, 120 R.I. 771 , 390 A.2d 926, 1978 R.I. LEXIS 723 (1978).

Although the prosecutor might have chosen his language more circumspectly in stating “[t]hose [the defendant and the victim] are the only two people who can say beyond a shadow of a doubt,” that language did not run afoul of the prohibition against commenting on a defendant’s failure to testify and is constitutionally permissible. State v. Andrews, 120 R.I. 771 , 390 A.2d 926, 1978 R.I. LEXIS 723 (1978).

The Fifth Amendment clearly prohibits any adverse comments by either the prosecution or the trial justice on an accused’s decision not to testify. State v. Gibbons, 418 A.2d 830, 1980 R.I. LEXIS 1732 (R.I. 1980).

Prosecutor’s remark did not refer to defendant’s failure to testify. See United States v. Lavoie, 721 F.2d 407, 1983 U.S. App. LEXIS 15030 (1st Cir. 1983), cert. denied, 465 U.S. 1069, 104 S. Ct. 1424, 79 L. Ed. 2d 749 (1984).

Preliminary admonitions when addressing the venire of jurors and at the time of swearing-in of a jury panel, cannot and must not serve as substitutes for a comprehensive and complete set of instructions upon the law following final arguments at the end of the trial as to inferences that might be drawn against defendant’s decision not to testify in his own defense. State v. Simpson, 595 A.2d 803, 1991 R.I. LEXIS 176 (R.I. 1991).

The prosecutor’s remark during closing argument employing the term “unexplained” did not impermissibly comment on the defendant’s failure to testify as the remark was clearly aimed at the evidence in order to advance certain inferences, and not at the defendant. United States v. Akinola, 985 F.2d 1105, 1993 U.S. App. LEXIS 1554 (1st Cir. 1993).

The trial justice’s comments to defense counsel regarding the defendant’s failure to testify were a candid assessment that the defendant’s admissions of guilt, brought out through the state’s witnesses, remained uncontradicted except for any inconsistencies that could be found in the witnesses’ testimony. These comments, when viewed in context, did not deprive the defendant of his Fifth Amendment privilege, particularly when the trial justice continually reiterated to the jury that the defendant had the right not to testify. State v. Tempest, 651 A.2d 1198, 1995 R.I. LEXIS 2 (R.I. 1995).

After a police officer made an unsolicited remark that defendant remained silent after he had been informed of his Miranda rights, the trial court did not err in refusing to declare a mistrial, as it immediately provided the jury with a thorough curative instruction that foreclosed any prejudice to defendant that may have arisen. State v. Enos, 21 A.3d 326, 2011 R.I. LEXIS 88 (R.I. 2011).

Prosecutor’s statement that there was no evidence before the jury that the sex was consensual, including none from defendant, taken in context, did not violate defendant’s Fifth Amendment rights as the prosecutor’s comment did not implicate defendant’s right to remain silent. Given the broader context of the comment, the prosecutor’s statement was not of such a character that a jury would naturally and necessarily have construed it to amount to a comment on the failure of the accused to testify; further, the portion of the general instructions pertaining to defendant’s right not to testify adequately expressed that he had every right to remain silent, and admonished that such a choice could not be held against him. State v. Marizan, 185 A.3d 510, 2018 R.I. LEXIS 80 (R.I. 2018).

— Commitment to Treatment Facility.

Possible commitment to a treatment facility after expiration of a term of confinement to a juvenile facility was not a threat of prosecution to which the self-incrimination privilege attached; therefore, a juvenile serial killer could not refuse to cooperate with a psychiatric treatment plan on grounds of self-incrimination, and the failure to cooperate was punishable by imprisonment for criminal contempt. State v. Price, 820 A.2d 956, 2003 R.I. LEXIS 99 (R.I. 2003).

— Confession.

The police have never been required to give an estimate concerning probable maximum penalties before permitting a confession. State v. Cline, 122 R.I. 297 , 405 A.2d 1192, 1979 R.I. LEXIS 2159 (1979).

Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by the holding in Miranda. State v. Perez, 422 A.2d 913, 1980 R.I. LEXIS 1725 (R.I. 1980).

The Fourteenth Amendment to the United States Constitution forbids the use of involuntary confessions. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

A statement or confession may be admitted only if the trial justice is persuaded by clear and convincing evidence that it was not illegally obtained. State v. Killay, 430 A.2d 418, 1981 R.I. LEXIS 1146 (R.I. 1981).

Any conviction based in whole or in part upon an involuntary confession, regardless of its truth or falsity, deprived a defendant of due process of law and, therefore must be reversed. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

Neither custody nor questioning of a suspect will serve by itself to invalidate automatically a resultant confession. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

A finding that a confession may satisfy the voluntariness standards of this amendment does not necessarily mean that there is no Fourth Amendment violation. State v. Jennings, 461 A.2d 361, 1983 R.I. LEXIS 957 (R.I. 1983).

Giving a suspect Miranda warnings alone does not per se make any subsequent statement sufficiently a product of free will to break the causal connection between the confession and a previous unlawful action. State v. Jennings, 461 A.2d 361, 1983 R.I. LEXIS 957 (R.I. 1983).

Where at no time prior to giving his statement did defendant indicate any refusal or reluctance to answer questions, the trial justice did not err in admitting into evidence defendant’s statement given to police officers. State v. Pacheco, 481 A.2d 1009, 1984 R.I. LEXIS 602 (R.I. 1984).

Where the Supreme Court must conclude as a matter of fact that defendant was brought involuntarily to the police station for interrogation even though the police did not suspect him and had no probable cause to believe that he was guilty of a crime, the trial justice’s finding that his statements were voluntary for Fifth Amendment purposes was insufficient to overcome the Fourth Amendment violation. State v. Mattatall, 525 A.2d 49, 1987 R.I. LEXIS 478 (R.I. 1987).

Proof of intoxication alone, absent a showing of coercive police activity, is not sufficient to suppress a confession. Brown v. Moran, 534 A.2d 180, 1987 R.I. LEXIS 572 (R.I. 1987).

The defendant’s Fifth Amendment rights were not violated by allowing the jury to consider incriminating statements he made to police officers after having expressed a desire to consult an attorney. Lionberg v. Moran, 779 F. Supp. 672, 1991 U.S. Dist. LEXIS 18800 (D.R.I. 1991).

Separate hearing was not required to determine whether probationer’s statements admitting criminal conduct were voluntary and admissible; the exclusionary rule had no application in a revocation proceeding, since it was civil in nature, and there was no evidence indicating the statements were anything but voluntary. State v. Campbell, 833 A.2d 1228, 2003 R.I. LEXIS 196 (R.I. 2003).

When defendant claimed it was error to deny defendant’s motion to suppress defendant’s confession since the confession was the fruit of an illegal arrest, whether defendant’s arrest was based on probable cause, under U.S. Const. amend. IV and R.I. Const. art. I, § 6 was not preserved because defendant said the confession was obtained contrary to R.I. Const. art. I, §§ 10 and 13 and U.S. Const. amends. V and VI. State v. Chum, 54 A.3d 455, 2012 R.I. LEXIS 131 (R.I. 2012).

Miranda violations do not taint the admissibility of physical evidence that is the product of an unwarned and inadmissible statement, so long as that statement is voluntary. State v. Beauregard, 198 A.3d 1, 2018 R.I. LEXIS 130 (R.I. 2018).

— — Burden of Proof.

Where defendant’s confession was obtained while defendant was being detained as the result of an illegal arrest, the state not only had the initial burden of showing that defendant’s statements met the voluntariness standards required by this amendment but also had the burden of demonstrating that the causal connection between the statements and the illegal arrest was broken so as to dispel the primary taint of the illegal seizure. State v. Burns, 431 A.2d 1199, 1981 R.I. LEXIS 1179 (R.I. 1981).

When the state seeks to use a defendant’s confession, it then assumes the burden of proving that before the defendant confessed, he voluntarily and knowingly waived his constitutional privilege against self-incrimination. State v. Carlson, 432 A.2d 676, 1981 R.I. LEXIS 1227 (R.I. 1981).

The prosecution is required to establish the requisite voluntariness of a defendant’s confession by clear and convincing evidence, and the trial justice’s determination of this issue, since it is factual, will not be disturbed on appeal unless the factfinder is clearly wrong. State v. Carlson, 432 A.2d 676, 1981 R.I. LEXIS 1227 (R.I. 1981).

At a hearing on the voluntariness of a defendant’s confession, the prosecution must establish the voluntariness of the confession by clear and convincing evidence. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

When on appeal a defendant contends that the findings of the trial justice concerning the voluntariness of his confession were in error, the Supreme Court will apply the “clearly erroneous rule.” State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

— — Voluntariness.

A confession, to be voluntary, must be the product of a rational intellect and a free will. State v. Carlson, 432 A.2d 676, 1981 R.I. LEXIS 1227 (R.I. 1981).

Whether a confession was voluntary or was a product of duress or coercion is a question of fact to be determined from the totality of the circumstances of the case. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

The test in determining the voluntariness of the confession is whether defendant’s statements were the product of his free and rational choice and not a product of coercion in any form. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

In considering the question of the voluntariness of a confession, a defendant is entitled to an independent hearing. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

When deciding the issue of voluntariness of a defendant’s confession, courts examine the conduct of the interrogators as well as the behavior and statements of the defendant. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

Suicidal declarations per se do not prove a lack of free will. State v. Carlson, 432 A.2d 676, 1981 R.I. LEXIS 1227 (R.I. 1981).

Where hospital records indicated only that defendant had an “old laceration, right knee” that was “healing nicely” and no bruises at all were in evidence, the trial justice could reasonably determine that defendant had not been subjected to physical abuse by the police. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

The voluntariness and freedom of will of the defendant was not overborne or diminished by the affirmative reaction of the police to both his desire to be placed in an out-of-state prison if convicted or his request that his companion not be prosecuted for harboring. State v. Pacheco, 481 A.2d 1009, 1984 R.I. LEXIS 602 (R.I. 1984).

An illegal arrest does not render a subsequent confession inadmissible per se, the confession may be admissible if the accused was advised of his constitutional rights and voluntarily waived them. State v. Hughes, 494 A.2d 85, 1985 R.I. LEXIS 530 (R.I.), cert. denied, 474 U.S. 1009, 106 S. Ct. 536, 88 L. Ed. 2d 466, 1985 U.S. LEXIS 4645 (1985).

Admissions made pursuant to a good-faith contingent plea agreement are voluntary when the defendant is fully informed of his rights prior to his testifying, when there exists no evidence that the state falsely induced the statements, and when the defendant makes a free and rational choice to speak. State v. Malone, 568 A.2d 1378, 1990 R.I. LEXIS 2 (R.I. 1990).

The admission of the defendant’s statements to police at the time of his arrest did not violate his constitutional rights, where he had read, understood, initialed, and signed a rights-waiver form, and his booking photograph failed to corroborate his testimony that he was struck repeatedly about the face and head with a nightstick-flashlight. State v. Smith, 602 A.2d 931, 1992 R.I. LEXIS 18 (R.I. 1992).

Where the record was devoid of any facts supporting the defendant’s contention that a threat occurred, other than an ambiguous statement concerning “something bad could happen” if he made the police “upset”, this statement alone, taken without substantiated facts and in light of the surrounding circumstances, did not rise to the level of undue coercion. State v. Garcia, 643 A.2d 180, 1994 R.I. LEXIS 182 (R.I. 1994).

A confession was held to be voluntary where the defendant not only initiated contact with police but also, immediately before confessing to the crimes in question, expressly waived his constitutional right to counsel and to remain silent. State v. Brouillard, 745 A.2d 759, 2000 R.I. LEXIS 26 (R.I. 2000).

Even if the defendant’s mental state was impaired at the time he confessed to the crimes charged, that was irrelevant to the question of the voluntariness of the confession because that confession was not induced by the police or by any other state actor. State v. Brouillard, 745 A.2d 759, 2000 R.I. LEXIS 26 (R.I. 2000).

The totality of the circumstances surrounding defendant’s confession supported the trial court’s finding that it was a voluntary act, since the late night arrest and early morning interrogation were not the product of coercive police tactics, but merely reflected the vicissitudes of the investigation and the fortuitous, late-in-the-day timing of the various events leading up to the arrest, and since the defendant was provided with his rights three times during the three hours between the arrest and the interview. State v. Carter, 744 A.2d 839, 2000 R.I. LEXIS 15 (R.I. 2000).

The defendant’s confession was not coerced, notwithstanding that he was in custody when he confessed to a detective and that a sizable team of police officers, plus a dog, was present in the apartment with him at the same time, where the record established that the police did not apply undue or unusual pressure to him, use coercive tactics, or threaten him with violence or retaliation if he did not confess. United States v. Genao, 281 F.3d 305, 2002 U.S. App. LEXIS 2952 (1st Cir.), cert. denied, 537 U.S. 901, 123 S. Ct. 216, 154 L. Ed. 2d 173, 2002 U.S. LEXIS 6756 (2002).

Where a murder suspect who struck all who observed him as highly intelligent reserved as many as six Miranda cautions during the period in which he was giving statements to police, and executed waivers after each caution, there was no question that he was eager to talk about what he had done, and that his statements, like the waivers, were voluntary and admissible. State v. Girard, 799 A.2d 238, 2002 R.I. LEXIS 123 (R.I. 2002).

Trial court’s findings that defendant’s statement was voluntary and its denial of defendant’s motion to suppress the statement were not clearly erroneous as defendant was properly informed of his Miranda rights in his native language, and he signed a waiver form that indicated each right was waived; at the suppression hearing, defendant put forth no evidence that would have allowed the trial justice to make findings of historical fact about his background, experience, or educational attainment that might have tipped the totality of the circumstances in his favor. State v. Bido, 941 A.2d 822, 2008 R.I. LEXIS 2 (R.I. 2008).

Defendant’s confession was properly not suppressed as a hearing justice did not credit defendant’s testimony that the Rhode Island Department of Children, Youth and Families threatened to take defendant’s children if defendant did not give a police statement; defendant voluntarily waived defendant’s right against self-incrimination under the Fifth Amendment, U.S. Const. amend. V, and R.I. Const. art. I, § 13 when defendant made incriminating statements to the detectives at the police station. State v. Gonzalez, 986 A.2d 235, 2010 R.I. LEXIS 8 (R.I. 2010).

Confession made to a police detective was admissible, as it was clearly voluntary where the detective apprised defendant of his Miranda rights, used no coercive tactics, and ended the interview when defendant asked if defendant needed a lawyer and refused to execute a written statement. State v. Robinson, 989 A.2d 965, 2010 R.I. LEXIS 33 (R.I. 2010).

It was not error to deny defendant’s motion to suppress defendant’s confession made during an interrogation at a police station because it was not clear error to find the confession was made after defendant voluntarily waived defendant’s Miranda rights, as (1) defendant’s counsel admitted defendant was not forced to make the confession, (2) the evidence was undisputed that defendant was not threatened, defendant never said defendant was confused or felt pressured, defendant never asked to stop questioning, and defendant never requested an attorney, and (3) any limits on defendant’s understanding of English had little bearing on the validity of defendant’s Miranda waiver, as defendant was advised of those rights in defendant’s first language. State v. Jimenez, 33 A.3d 724, 2011 R.I. LEXIS 148 (R.I. 2011).

Trial court properly denied defendant’s motion to suppress his confession because it found that any delay in presentment under R.I. Super. Ct. R. Crim. P. 5 (a) did not affect the voluntariness of his confession to the police. State v. Musterd, 56 A.3d 931, 2012 R.I. LEXIS 133 (R.I. 2012).

Defendant’s confession was voluntary where the record showed that defendant had been in the United States since 2005, he read and signed a form describing his Miranda rights on two occasions, the total interrogation time was less than 90 minutes, the court accepted the trial court’s findings that defendant was not assaulted during the first interrogation and that his statement was not the result of threats or coercion, and the record was replete with references to defendant’s calm demeanor throughout his arrest and interrogations. State v. Bojang, 138 A.3d 171, 2016 R.I. LEXIS 59 (R.I. 2016).

— Custody.

The defendant was not in custody and therefore not entitled to Miranda warnings before making statements prior to going to the police station since he had personally invited police officers into his house, voluntarily admitted that he owned a weapon and shown it to at least one officer, voluntarily offered to show the police his telephone caller I.D. box, and willingly agreed to go to the police station with them to answer more questions. State v. Briggs, 756 A.2d 731, 2000 R.I. LEXIS 170 (R.I. 2000).

It was error for a trial justice to suppress statements made at a police station prior to police officers improper behavior. State v. Briggs, 756 A.2d 731, 2000 R.I. LEXIS 170 (R.I. 2000).

It was not error to deny defendant’s motion to suppress defendant’s inculpatory statements to a police officer because defendant was not in custody when defendant made the statements, as nothing showed defendant’s freedom of movement was curtailed or that the officer used force that would make a reasonable person think the person was not free to leave. State v. Jimenez, 33 A.3d 724, 2011 R.I. LEXIS 148 (R.I. 2011).

Where the victim testified that defendant handcuffed and assaulted her, his statement to an officer, before being Mirandized, that he owned handcuffs was admissible because he was not in custody when he made it. He allowed police to enter his apartment, the atmosphere was not aggressive, and police did not indicate he was under arrest or his freedom was in any way restricted. State v. Harrison, 66 A.3d 432, 2013 R.I. LEXIS 83 (R.I. 2013).

— Demonstrative Evidence.

While the immunity extends to all testimonial utterances by the defendant, it has no application to such physical evidential circumstances as may be revealed by an open exhibition of the witness’s body or by ordinary observation of his person, and he may be fingerprinted or required to stand up in court for identification. Swingle v. United States, 151 F.2d 512, 1945 U.S. App. LEXIS 2977 (10th Cir. 1945).

The introduction into evidence of the results of a breathalyzer test in a trial for driving while drunk does not violate the defendant’s privilege against self-incrimination, since that privilege extends only to evidence of a communicative or testimonial nature. State ex rel. Widergren v. Charette, 110 R.I. 124 , 290 A.2d 858, 1972 R.I. LEXIS 888 (1972).

— Documentary Evidence.

A witness cannot be required to produce his cashbook in a grand jury proceeding if he contends it will incriminate him. Ballmann v. Fagin, 200 U.S. 186, 26 S. Ct. 212, 50 L. Ed. 433 (1906). But see United States v. Doe, 465 U.S. 605, 104 S. Ct. 1237, 79 L. Ed. 2d 552 (1984) for discussion of rules limitations.

The privilege against self incrimination can be invoked only when the actual preparation of the documents or the making of the written declarations which they contain has been compelled. When a document has been created voluntarily, the Fifth Amendment does not bar its use in a prosecution provided the document has been obtained by a lawful seizure. United States v. Brian, 507 F. Supp. 761, 1981 U.S. Dist. LEXIS 10625 (D.R.I. 1981).

Although corporate business records are not protected by the Fifth Amendment because they are readily obtainable by subpoena, business records which were illegally seized through an unconstitutional search warrant were not admissible under the “inevitable discovery” doctrine, because the government did not have sufficient knowledge, prior to the illegal search, to have been able to subpoena the particular documents which were later illegally seized. United States v. Guarino, 610 F. Supp. 371, 1984 U.S. Dist. LEXIS 21051 (D.R.I. 1984).

— Interrogation.

The Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent; that is, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating reponse from the suspect. Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297, 1980 U.S. LEXIS 94 (1980).

Not all statements obtained by the police after a person has been taken into custody are to be considered the product of interrogation; rather, “interrogation” must reflect a measure of compulsion above and beyond that inherent in custody itself. Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297, 1980 U.S. LEXIS 94 (1980).

There was no “interrogation” within the meaning of Miranda where police officers transporting an arrested defendant to the station conversed briefly among themselves but within the defendant’s hearing about the need to find the murder weapon, believed to be located in the vicinity of a school for handicapped children; the fact that the officers’ comments struck a responsive chord in the defendant, who then located the shotgun for the police, did not decide the matter where it was not established that the police should have known that their words were reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297, 1980 U.S. LEXIS 94 (1980).

The definitions of “interrogation” under the Fifth and Sixth Amendments, if indeed the term “interrogation” is even apt in the Sixth Amendment context, are not necessarily interchangeable since the policies underlying the two constitutional protections are quite distinct. Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297, 1980 U.S. LEXIS 94 (1980).

Custody alone, without some police action that might amount to interrogation, does not involve the type of inherent coercion attending custodial interrogation which the supreme court in Miranda and its progeny sought to mitigate. State v. Gelinas, 417 A.2d 1381, 1980 R.I. LEXIS 1733 (R.I. 1980).

A defendant may not invoke the Fifth Amendment to bar the admission of incriminating statements unless such statements are the product of custodial interrogation. State v. Perez, 422 A.2d 913, 1980 R.I. LEXIS 1725 (R.I. 1980).

To determine whether or not a statement was the product of police interrogation, the reviewing court must independently examine the facts, findings and the record of the lower court. State v. Perez, 422 A.2d 913, 1980 R.I. LEXIS 1725 (R.I. 1980).

The reading of a rights form which advised a defendant that he was a suspect in a criminal investigation but did not accuse him of the crime being investigated was not the functional equivalent of interrogation and statements made by the defendant were admissible against him. State v. Perez, 422 A.2d 913, 1980 R.I. LEXIS 1725 (R.I. 1980).

Defendant’s expression of a desire to speak to “someone” did not act to invoke his right to the presence of counsel during custodial interrogation. State v. Killay, 430 A.2d 418, 1981 R.I. LEXIS 1146 (R.I. 1981).

When a suspect is in custody for interrogation purposes, he must be advised that he has a legal right to remain silent and that he may have an attorney present during the interrogation. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

The defendant, who was questioned by FBI agents in her home between 8:00 and 8:30 a.m., was not “in custody” for Miranda purposes, even though she was not told that she was free to leave or terminate questioning, did not eat or go to the bathroom during the entire morning, and was asked to provide handwriting exemplars for comparison with forged checks. United States v. Lanni, 951 F.2d 440, 1991 U.S. App. LEXIS 29749 (1st Cir. 1991).

Defendant’s appearances before a grand jury as an alibi witness in a murder prosecution did not amount to interrogation warranting delivery of Miranda warnings. State v. Monteiro, 632 A.2d 340, 1993 R.I. LEXIS 216 (R.I. 1993).

Since Miranda warnings are necessary only when a suspect is in official custody, subject to questioning by law-enforcement officials, their agents, or agents of the court, the questioning of a student by a principal after a fight as part of the school’s policy to call students involved in fights to the principal’s office, and after a police officer had left the school grounds without asking the principal to speak to the student, did not render the principal an agent of law enforcement, and did not require that the student be informed of his rights prior to the questioning. In re Harold S., 731 A.2d 265, 1999 R.I. LEXIS 134 (R.I. 1999).

Defendant’s oral, written and taped custodial statements were properly admitted into evidence since he never raised the issue of suppression at any time during the course of the lower court proceedings, since he never raised any question concerning mental illness or impairment affecting his interrogation, and since there was no indication on the record that he requested privacy during the time he made telephone calls. State v. Smith, 766 A.2d 913, 2001 R.I. LEXIS 39 (R.I. 2001).

A police officer’s first words to the defendant, i.e. “We’ve got a problem here,” did not amount to interrogation of the defendant. United States v. Genao, 281 F.3d 305, 2002 U.S. App. LEXIS 2952 (1st Cir.), cert. denied, 537 U.S. 901, 123 S. Ct. 216, 154 L. Ed. 2d 173, 2002 U.S. LEXIS 6756 (2002).

As defendant was orally apprised of his Miranda rights and initialed a form to acknowledge his understanding of those rights, the surreptitious recording of his statement after he said he preferred that it not be recorded did not render his waiver of his rights unknowing and unintelligent. State v. Musterd, 56 A.3d 931, 2012 R.I. LEXIS 133 (R.I. 2012).

— Invocation of Right.

Bankrupt could not withhold books and papers pertaining to his estate from the trustee or make delivery conditional on the ground that they might be used against him. Ex parte Fuller, 262 U.S. 91, 43 S. Ct. 496, 67 L. Ed. 881, 1923 U.S. LEXIS 2619 (1923).

It was error to hold a witness in contempt for refusing to answer a question as to whether, at a given time and place, the defendant had admitted to him commission of a robbery, where an affirmative answer would have placed the witness in the company of the defendant within a few minutes after the commission of the robbery. Hummell v. Superior Court, 100 R.I. 54 , 211 A.2d 272, 1965 R.I. LEXIS 352 (1965).

The privilege against self-incrimination extends not only to disclosures that would support a conviction, but also to such disclosures as would constitute a link in a chain of evidence needed to initiate a prosecution. State v. Hasney, 115 R.I. 210 , 341 A.2d 729, 1975 R.I. LEXIS 1144 (1975).

Even if defendant had requested to speak with his aunt or mother prior to interrogation, such requests would not have served to invoke his right to remain silent or his right to counsel. State v. Benton, 413 A.2d 104, 1980 R.I. LEXIS 1517 (R.I. 1980).

There is nothing inherent in a request for a probation officer that requires a finding that a juvenile’s request to see one necessarily constitutes an expression of the juvenile’s right to remain silent. State v. Benton, 413 A.2d 104, 1980 R.I. LEXIS 1517 (R.I. 1980).

The right against self-incrimination is personal; it cannot be invoked or waived by anyone other than the person to whom the right attaches. Therefore, even if police conduct infringes on an existing attorney-client relationship, it cannot violate the accused’s fifth amendment right not to incriminate himself unless the conduct itself somehow affects the accused’s capacity to invoke his rights. Fuentes v. Moran, 572 F. Supp. 1461, 1983 U.S. Dist. LEXIS 13405 (D.R.I. 1983), aff'd, 733 F.2d 176, 1984 U.S. App. LEXIS 22782 (1st Cir. 1984).

Defendant’s statement to police sergeant that he had nothing to say at that time, which the officer interpreted to mean that defendant did not know anything concerning the event about which he was being questioned, did not amount to invocation of his right to remain silent. State v. Pacheco, 481 A.2d 1009, 1984 R.I. LEXIS 602 (R.I. 1984).

Even though a witness’s invocation of the fifth amendment may have added weight to the prosecutor’s case against the defendant, the prejudice, if any, to the defendant is minimal, where the prosecutor does not attempt to use the witness’s brief appearance to the government’s advantage and does not refer to it during the trial. United States v. Newton, 891 F.2d 944, 1989 U.S. App. LEXIS 18731 (1st Cir. 1989).

Where, in a civil case there is no indication in the record that the trial justice is provided with any factual basis for evaluating whether defendants’ testimony or production of documents would be potentially incriminating, the mere threat of criminal prosecution is insufficient to justify a blanket assertion of the Fifth Amendment privilege. Tona, Inc. v. Evans, 590 A.2d 873, 1991 R.I. LEXIS 85 (R.I. 1991).

The doctrine that after Miranda warnings have been given by a police officer the state may not present evidence of a defendant’s silence, is not applicable when a defendant’s silence is in response to questions from a person who is not a police officer or otherwise acting in an official law enforcement capacity. State v. Martinez, 651 A.2d 1189, 1994 R.I. LEXIS 294 (R.I. 1994).

The defendant’s oral statement to the police “I don’t want to talk about it right now” did not constitute an unequivocal invocation of the right to remain silent and the police were not required to stop questioning the defendant. The words “right now” operated to qualify and limit the defendant’s intent to remain silent only in regard to the moment. State v. Sabetta, 680 A.2d 927, 1996 R.I. LEXIS 200 (R.I. 1996).

R.I. Gen. Laws §§ 39-4-21 and 39-12-34 provide that no person shall be criminally prosecuted for any incriminating statements made before a Division of Public Utilities and Carriers of the State of Rhode Island hearing unless that witness has committed perjury; where there was no evidence that an officer of a water transport company was committing perjury, the officer had no right to invoke the Fifth Amendment privilege against self-incrimination. Interstate Navigation Co. v. Div. of Pub. Utils. & Carriers of R.I., 824 A.2d 1282, 2003 R.I. LEXIS 167 (R.I. 2003).

Where a witness invoked the right not to testify under U.S. Const. amend. V and then disappeared from the courtroom and was deemed “unavailable” pursuant to R.I. R. Evid. 804 (a)(5), the trial court did not abuse its discretion or violate defendant’s confrontation rights under U.S. Const. amend. VI and R.I. Const. art. 1, § 10 by reading to the jury prior recorded testimony under Rule 804(b)(1) provided by the witness in a matter that had resulted in a mistrial. State v. Ramirez, 936 A.2d 1254, 2007 R.I. LEXIS 130 (R.I. 2007).

Where a mother appealed a family court’s termination of her parental rights under several sections of R.I. Gen. Laws § 15-7-7 , she invoked her Fifth Amendment privilege against self-incrimination after every question. The Supreme Court of Rhode Island had specifically stated that in the trial of a petition seeking the termination of parental rights, the invocation of the protection afforded under the Fifth Amendment in order to avoid testifying does not forbid the drawing of adverse inferences against a party who refuses to testify. In re Rita F., 64 A.3d 1220, 2013 R.I. LEXIS 78 (R.I. 2013).

— — Attorney.

The Fifth and Sixth Amendments do not permit a claim of privilege by an attorney merely because his client could refuse to answer on the basis of his privilege against self-incrimination were he asked the same question. In re Grand Jury Proceedings, 760 F.2d 26, 1985 U.S. App. LEXIS 30474 (1st Cir. 1985).

— — Codefendant.

The defendant did not have standing to object to a violation of his codefendant’s fifth amendment right, even though the violation of that right may have been instrumental in producing evidence which ultimately may have been prejudicial to the defendant. State v. Ducharme, 601 A.2d 937, 1991 R.I. LEXIS 177 (R.I. 1991).

— Juvenile Proceedings.

Before a court may accept an admission of delinquency, the juvenile must be informed of his right to be informed of the nature of the charges, the maximum sentence that may be imposed, the benefit of the presumption of innocence, the privilege against self-incrimination, the right to confront and cross-examine his accusers and the witnesses against him, the right to testify and to call witnesses in his own defense, the right to have the state prove the juvenile’s guilt beyond a reasonable doubt prior to any finding of delinquency, and the right to appeal any delinquency finding. In re John D., 479 A.2d 1173, 1984 R.I. LEXIS 550 (R.I. 1984).

The validity of a juvenile’s waiver of his or her rights should be evaluated in light of the totality of the circumstances surrounding that waiver, and the presence or absence of a parent or interested adult is but one factor to be considered in reaching that determination. In re Kean, 520 A.2d 1271, 1987 R.I. LEXIS 410 (R.I. 1987).

— Physical or Mental Examination.

Where defendant asserts the defense of insanity, a compulsory psychiatric examination by the state is not unconstitutional if the accused is protected from later use at his guilt trial of any inculpatory statements he may make during the examination. State v. Johnson, 119 R.I. 749 , 383 A.2d 1012, 1978 R.I. LEXIS 618 (1978).

The use of inculpatory statements made by an accused during a compelled submission to a psychiatric examination by the state is improper if it is intended to prove that the accused performed the act charged; however, when the statement is adduced solely for the purpose of disclosing the information upon which the psychiatrist based his opinion of the accused’s mental status at the time of the alleged act, the admission of such statements is permitted provided that such admission is accompanied by a preventive instruction to the effect that evidence of the inculpating statement shall not be regarded as proof of the truth of facts disclosed and may be considered only on the insanity issue. State v. Johnson, 119 R.I. 749 , 383 A.2d 1012, 1978 R.I. LEXIS 618 (1978).

There is no question that a court may, upon a showing of probable cause, issue an order authorizing the taking of a blood sample from a person who has been charged with or suspected of a criminal offense, in respect to which the blood sample is determined to be relevant. State v. Souza, 425 A.2d 893, 1981 R.I. LEXIS 1037 (R.I.), cert. denied, 454 U.S. 840, 102 S. Ct. 148, 70 L. Ed. 2d 123, 1981 U.S. LEXIS 3372 (1981).

Scientific tests and demonstrations may be ordered by a trial justice during the course of a trial on any matter that does not impinge upon the privilege of the defendant against self-incrimination. State v. Souza, 425 A.2d 893, 1981 R.I. LEXIS 1037 (R.I.), cert. denied, 454 U.S. 840, 102 S. Ct. 148, 70 L. Ed. 2d 123, 1981 U.S. LEXIS 3372 (1981).

— Procedure.

In determining whether to admit inculpatory statements allegedly obtained in violation of constitutional guarantees, the trial justice must first conduct a preliminary hearing out of the jury’s presence in which the state must show by clear and convincing evidence that the statements were obtained in a constitutional manner; and, if the trial justice admits the evidence, he must specifically instruct the jury that, before it may consider the evidence, it must first determine beyond any reasonable doubt that the inculpatory statements were not obtained in violation of the defendant’s constitutional guarantees. State v. Benton, 413 A.2d 104, 1980 R.I. LEXIS 1517 (R.I. 1980).

In this state both the justice and the jury make their respective determinations about the voluntariness of confessions. State v. Bello, 417 A.2d 902, 1980 R.I. LEXIS 1715 (R.I. 1980).

When the voluntariness of an extrajudicial statement or confession is challenged, the trial justice must conduct an evidentiary hearing outside the presence of the jury in order to determine admissibility under constitutional standards. State v. Killay, 430 A.2d 418, 1981 R.I. LEXIS 1146 (R.I. 1981).

If a statement by a defendant is admitted into evidence, the question of voluntariness is again submitted to the jury. State v. Killay, 430 A.2d 418, 1981 R.I. LEXIS 1146 (R.I. 1981).

— Sanctions in Civil Actions.

The imposition of sanctions in a civil action upon one who refuses to answer questions relating to the subject matter in issue on the ground of self-incrimination is not a violation of any right guaranteed by this amendment or former R.I. Const., Art. 1, § 13 (see now R.I. Const., Art. 1, Sec. 13 ). Pulawski v. Pulawski, 463 A.2d 151, 1983 R.I. LEXIS 1015 (R.I. 1983).

Although a default judgment should not be granted against a defendant purely by reason of his assertion of his privilege against self-incrimination, such refusal may be taken into account in the process of evaluating the evidence presented by a plaintiff or other moving party. Pulawski v. Pulawski, 463 A.2d 151, 1983 R.I. LEXIS 1015 (R.I. 1983).

When termination of a father’s parental rights to a child was sought due, in part, to the father’s refusal to participate in recommended sexual-offender treatment, which was a precondition to the child’s return to the father, termination was proper because the father’s privilege against possible self-incrimination arising from the father’s participation in treatment did not trump the father’s responsibility to reunify with the child. In re Julian D., 18 A.3d 477, 2011 R.I. LEXIS 44 (R.I. 2011).

— State and Federal Prosecution.

The state’s motion, in a civil action alleging violations of federal and state antitrust laws, to compel the defendants to answer questions posed at a deposition hearing was denied, for the reason that, although the state statutes were held not to apply to the defendants’ conduct, there was still the possibility of prosecution for the violation of the federal antitrust statutes. Rhode Island v. Cardillo, 592 F. Supp. 655, 1984 U.S. Dist. LEXIS 23577 (D.R.I. 1984).

The reporting requirement under the Bank Secrecy Act, 31 U.S.C. § 5313, does not violate a defendant’s fifth amendment rights by requiring that defendant provide incriminating information to the government about himself or herself. United States v. Hurley, 63 F.3d 1, 1995 U.S. App. LEXIS 19318 (1st Cir. 1995), cert. denied, 517 U.S. 1105, 116 S. Ct. 1322, 134 L. Ed. 2d 474, 1996 U.S. LEXIS 1990 (1996).

— Statutory Immunity.

The immunity granted under § 12-17-15 is transactional immunity and hence is broader than the fifth amendment privilege which grants only use immunity. State v. Paquette, 117 R.I. 638 , 369 A.2d 1096, 1977 R.I. LEXIS 1734 (1977).

A witness who has been granted immunity under § 12-17-15 but who refuses to relinquish his fifth amendment privilege may not be held in contempt of court unless the trial justice clearly explains to him that the immunity granted is broader than his fifth amendment privilege. State v. Paquette, 117 R.I. 638 , 369 A.2d 1096, 1977 R.I. LEXIS 1734 (1977).

A witness who has been given immunity from prosecution pursuant to the terms of § 12-17-15 cannot invoke his federal constitutional right against incrimination because of the threat of federal prosecution. State v. Marty, 501 A.2d 737, 1985 R.I. LEXIS 603 (R.I. 1985).

— Subpoena Duces Tecum.

That documents of a corporation in the possession of one of its officers may tend to incriminate him does not authorize him to refuse to produce them under a subpoena duces tecum directed to the corporation. Wilson v. United States, 221 U.S. 361, 31 S. Ct. 538, 55 L. Ed. 771, 1911 U.S. LEXIS 1740 (1911).

A former officer of a dissolved corporation can be compelled by a subpoena duces tecum to bring before a grand jury the books and papers of the corporation, even though such evidence will incriminate the officer. Wheeler v. United States, 226 U.S. 478, 33 S. Ct. 158, 57 L. Ed. 309, 1913 U.S. LEXIS 2255 (1913).

Subpoena duces tecum directed to an unincorporated association and served on the officer having possession of the books is valid. Brown v. United States, 276 U.S. 134, 48 S. Ct. 288, 72 L. Ed. 500, 1928 U.S. LEXIS 66 (1928).

The subpoena of business records implicates the Fifth Amendment only when those records are possessed by the individual who created them. In re Grand Jury Subpoena Duces Tecum Served on Allied Auto Sales, Inc., 606 F. Supp. 7, 1983 U.S. Dist. LEXIS 12649 (D.R.I. 1983).

If documents were prepared by another party, or if the documents are corporate records, the custodian cannot resist a subpoena, even if the records contain information incriminating to him. In re Grand Jury Subpoena Duces Tecum Served on Allied Auto Sales, Inc., 606 F. Supp. 7, 1983 U.S. Dist. LEXIS 12649 (D.R.I. 1983).

The government may subpoena records which implicated the custodian’s fifth amendment rights if it grants the witness use immunity for the authentication of other testimonial information that could be implied from the witness’s compliance with the subpoena. In re Grand Jury Subpoena Duces Tecum Served on Allied Auto Sales, Inc., 606 F. Supp. 7, 1983 U.S. Dist. LEXIS 12649 (D.R.I. 1983).

In order to be granted use immunity as to the production of subpoenaed business records, the individual seeking protection should submit an affidavit which states that he is a sole practitioner or proprietor who prepared and maintained the requested records for use in his business. In re Grand Jury Subpoena Duces Tecum Served on Allied Auto Sales, Inc., 606 F. Supp. 7, 1983 U.S. Dist. LEXIS 12649 (D.R.I. 1983).

— Summary Judgment.

A claim of constitutional privilege against self-inculpation cannot in and of itself create a fact issue for summary judgment purposes, nor deny an opposing litigant access to the prophylaxis of F.R.C.P., Rule 56. Young Sik Woo v. Glantz, 99 F.R.D. 651, 1983 U.S. Dist. LEXIS 12129 (D.R.I. 1983).

— Waiver of Privilege.

A prisoner who takes the stand in his own behalf waives his constitutional privilege of silence, and the prosecution has the right to cross-examine him upon his evidence in chief with the same latitude as would be exercised in the case of an ordinary witness. Sawyer v. United States, 202 U.S. 150, 26 S. Ct. 575, 50 L. Ed. 972, 1906 U.S. LEXIS 1526 (1906).

Failure of accused to deny or explain incriminating circumstances after having waived his privilege subjects him to the inferences naturally to be drawn from it, and an instruction to that effect does not violate his rights. Caminetti v. United States, 242 U.S. 470, 37 S. Ct. 192, 61 L. Ed. 442, 1917 U.S. LEXIS 2169 (1917).

Where defendant, given Miranda warnings, was exercising his rights by waiting to consult counsel, further police questioning could not be justified as having been initiated by waiver of the privilege against self-incrimination and right to counsel when defendant remarked only that he was in a jam. State v. Lachapelle, 112 R.I. 105 , 308 A.2d 467, 1973 R.I. LEXIS 960 (1973).

Where defendant had waived his Miranda rights, his subsequent refusal to answer certains questions posed to him by a federal agent did not represent a reassertion of his right to remain silent without some affirmative indication that that was his intention; thus, the prosecution was entitled to introduce defendant’s statement along with the questions he refused to answer and to comment on those refusals. United States v. Goldman, 563 F.2d 501, 1977 U.S. App. LEXIS 11166 (1st Cir. 1977), cert. denied, 434 U.S. 1067, 98 S. Ct. 1245, 55 L. Ed. 2d 768, 1978 U.S. LEXIS 727 (1978).

The determination of whether statements made during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation in order to ascertain whether the accused in fact knowingly and voluntarily decided to waive his rights to remain silent and to have the assistance of counsel. State v. Benton, 413 A.2d 104, 1980 R.I. LEXIS 1517 (R.I. 1980).

The trial justice must conduct a preliminary hearing in the jury’s absence to determine if the confession obtained was in violation of a defendant’s rights against self-incrimination; if the evidence is introduced at trial, the trial justice must then instruct the members of the jury to make their independent determination. State v. Bello, 417 A.2d 902, 1980 R.I. LEXIS 1715 (R.I. 1980).

The trial justice’s ruling on the question of waiver will not be disturbed unless an independent examination of the record of the motion to suppress, such examination made in the light most favorable to the state, discloses that the ruling was clearly erroneous. State v. Proulx, 419 A.2d 835, 1980 R.I. LEXIS 1834 (R.I. 1980).

Although not dispositive of the question of waiver, an express written statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver. State v. Proulx, 419 A.2d 835, 1980 R.I. LEXIS 1834 (R.I. 1980).

If the trial justice finds that the police have informed the accused of his rights as mandated by Miranda, he must explore the totality of the circumstances attending the accused’s statement to determine whether the accused did legitimately waive his constitutional rights. State v. Proulx, 419 A.2d 835, 1980 R.I. LEXIS 1834 (R.I. 1980).

A waiver of the constitutional privilege against self-incrimination is not likely to be inferred. Roberts v. Communications Inv. Club, 431 A.2d 1206, 1981 R.I. LEXIS 1180 (R.I. 1981).

To waive the constitutional privilege against self-incrimination or any other fundamental constitutional right, one must intentionally relinquish or abandon a known right or privilege. Roberts v. Communications Inv. Club, 431 A.2d 1206, 1981 R.I. LEXIS 1180 (R.I. 1981).

Where the trial justice denied defendant’s assertion of his privilege against self-incrimination but the same information the questions sought to elicit was eventually placed before the trial justice by independent evidence, even if it was error for the trial justice to compel defendant to answer questions posed to him after he had asserted his privilege against self-incrimination, such error was harmless. Roberts v. Communications Inv. Club, 431 A.2d 1206, 1981 R.I. LEXIS 1180 (R.I. 1981).

In making an assessment about whether or not there has been a valid waiver by the defendant of his constitutional privilege against self-incrimination, the trial justice has to consider the totality of the relevant circumstances existing at the time the confession was made. State v. Carlson, 432 A.2d 676, 1981 R.I. LEXIS 1227 (R.I. 1981).

The prosecution bears a heavy burden in establishing that an accused waived his privilege against compelled self-incrimination and his right to counsel. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

Since no constitutional infraction automatically takes place when the police question a suspect who they have reason to know is represented by counsel, none ipso facto occurs merely because of neglect to inform the suspect of an attempt by an attorney to contact him. Rather, the relationship of the suspect to the attorney, the extent of the knowledge enjoyed by the authorities, the nature of the lawyer’s request, and all kindred factors, become part and parcel of the “totality of the circumstances” which must in all events be sifted and weighed in determining whether or not a free and sentient waiver of the rights to remain silent and to the presence of an attorney has been effectuated. Fuentes v. Moran, 572 F. Supp. 1461, 1983 U.S. Dist. LEXIS 13405 (D.R.I. 1983), aff'd, 733 F.2d 176, 1984 U.S. App. LEXIS 22782 (1st Cir. 1984).

Failure of police officers to volunteer to defendant that his lawyer had made a half-hearted inquiry as to defendant’s custodial status did not constitute trickery and did not vitiate defendant’s waiver of his fifth amendment rights. Fuentes v. Moran, 733 F.2d 176, 1984 U.S. App. LEXIS 22782 (1st Cir. 1984).

Defendant legitimately waived his constitutional privilege against self-incrimination where the defendant confessed after the police had twice previously read the defendant his rights and provided him a written rights-notification form, which he signed. Once the police had ascertained that the defendant understood his rights, they were under no obligation to also ask if the defendant desired to waive his rights before accepting his statement. State v. White, 512 A.2d 1370, 1986 R.I. LEXIS 530 (R.I. 1986).

Defendant’s prior involvement in the criminal justice system was “telling evidence” that the constitutional warnings given him by the police were understood and that his waiver was knowingly and intelligently made. State v. Ferola, 518 A.2d 1339, 1986 R.I. LEXIS 561 (R.I. 1986).

The defendant’s waiver of Miranda rights was both knowing and intelligent even if, as defendant contended, he could not speak fluent English and did not understand the full consequences of making a statement to the police, where he was advised of his rights in his native tongue and claimed to understand such rights. State v. Leuthavone, 640 A.2d 515, 1994 R.I. LEXIS 119 (R.I. 1994).

The trial justice correctly concluded that a Cuban-born defendant who had resided in the United States for 10 years and appeared to communicate successfully with non-Spanish speakers, was sufficiently fluent in the English language to have waived his Miranda rights knowingly and intelligently. State v. Garcia, 643 A.2d 180, 1994 R.I. LEXIS 182 (R.I. 1994).

Where, before the defendant was brought to the videotaping room, he was advised of his rights, he initialed statements given to him indicating that he understood each statement and then signed the form, and his mother signed as a witness, having been informed that her son’s rights applied to her as well, these facts, taken together with the fact that the seventeen-year-old defendant was living on his own with his girlfriend and their son, drove a car, and had held a couple of jobs, supported the finding that the defendant was apprised of his rights and, on the basis of the totality of the circumstances, had waived them knowingly and voluntarily. State v. Kryla, 742 A.2d 1178, 1999 R.I. LEXIS 224 (R.I. 1999).

Defendant, a juvenile, knowingly and voluntarily waived defendant’s Miranda rights in accordance with U.S. Const. amend. V, despite the police detective’s failure to determine defendant’s reading-comprehension ability; no evidence was presented to suggest that defendant had cognitive problems, and the warnings were read to defendant in addition to defendant reading them. In re Joseph B., 822 A.2d 172, 2003 R.I. LEXIS 116 (R.I. 2003).

Defendant’s statements to police regarding a killing that occurred while defendant was engaged in a gang fight were voluntary because defendant was advised of defendant’s Miranda rights, defendant’s guardian was present during the interview and allowed to converse with defendant privately at several points during the interview, defendant did not appear to be under the influence of alcohol or drugs, and a detective testified that no one made any promises to defendant or otherwise coerced defendant into waiving defendant’s Miranda rights. State v. Monteiro, 924 A.2d 784, 2007 R.I. LEXIS 81 (R.I. 2007).

In General.

Denial of request that nurse be permitted to sit alongside defendant’s counsel during medical testimony was not a denial of any right guaranteed by the Sixth Amendment. State v. Carvalho, 122 R.I. 461 , 409 A.2d 132, 1979 R.I. LEXIS 1564 (1979).

The definitions of “interrogation” under the Fifth and Sixth Amendments, if indeed the term “interrogation” is even apt in the Sixth Amendment context, are not necessarily interchangeable since the policies underlying the two constitutional protections are quite distinct. Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297, 1980 U.S. LEXIS 94 (1980).

Explicit guarantees of this amendment attach at initiation of judicial criminal proceedings. In re Daniel T., 446 A.2d 1042, 1982 R.I. LEXIS 907 (R.I. 1982).

Effective assistance of counsel is a constitutional right only in those circumstances where there is a constitutional right to counsel. Morin v. Rhode Island, 741 F. Supp. 32, 1990 U.S. Dist. LEXIS 8683 (D.R.I. 1990).

Confronted With Witnesses.

This provision is not violated by reading in evidence on a second trial a transcribed copy of the stenographic notes of the reporter of the testimony of a witness who had died after the first trial. Mattox v. United States, 156 U.S. 237, 15 S. Ct. 337, 39 L. Ed. 409, 1895 U.S. LEXIS 2131 (1895), limited, Carver v. United States, 164 U.S. 694, 17 S. Ct. 228, 41 L. Ed. 602, 1897 U.S. LEXIS 1704 (1897).

An act of congress declaring that a judgment of conviction against the principal felons shall be evidence in the prosecution against the receiver that property of the United States was embezzled or stolen, violates this amendment. Kirby v. United States, 174 U.S. 47, 19 S. Ct. 574, 43 L. Ed. 890, 1899 U.S. LEXIS 1481 (1899).

The admission in evidence of a statement or deposition of a co-defendent taken at the examining trial violates the right of a defendant to be confronted with the witnesses against him where the failure of the witness to appear at the trial to testify in person is plainly due to the negligence of the prosecution. Motes v. United States, 178 U.S. 458, 20 S. Ct. 993, 44 L. Ed. 1150, 1900 U.S. LEXIS 1694 (1900).

Accused does not have the right under this amendment to be advised of the names of witnesses who were before the grand jury. Wilson v. United States, 221 U.S. 361, 31 S. Ct. 538, 55 L. Ed. 771, 1911 U.S. LEXIS 1740 (1911).

Introduction of letters of persons not examined as witnesses did not constitute a denial of the right to be confronted with the witnesses where the accused had answered the letters. Salinger v. United States, 272 U.S. 542, 47 S. Ct. 173, 71 L. Ed. 398, 1926 U.S. LEXIS 22 (1926).

Where defendant was charged with first degree murder of a woman, and his alleged accomplice, who had pleaded guilty to second degree murder of the same deceased, was permitted to testify against him, defendant had no standing to object by virtue of his sixth amendment right of confrontation, since the alleged accomplice testified in the presence of defendant who cross-examined him. State v. Espinosa, 109 R.I. 221 , 283 A.2d 465, 1971 R.I. LEXIS 1044 (1971).

Where an out-of-court statement referred to threats of future conduct of defendant, where the state of mind of the victim was placed in issue by the defense to show a friendly relationship between victim and defendant, and where defendant made no attempt to show whether the circumstances indicated the statement was reasonably trustworthy, there was no error in admitting the hearsay as rebuttal evidence. State v. Patriarca, 112 R.I. 14 , 308 A.2d 300, 1973 R.I. LEXIS 955 (1973).

Defendant was not deprived of right of confrontation by denial of his pretrial motion for severance where evidence of an out-of-court conversation implicating defendant was admitted at trial, defendant cross-examined one of the participants as to whether the statement had in fact been made, there were no circumstances rendering suspect the reliability of declarant’s statement, and statement was not devastatingly incriminating. State v. Patriarca, 112 R.I. 14 , 308 A.2d 300, 1973 R.I. LEXIS 955 (1973); State v. Lerner, 112 R.I. 62 , 308 A.2d 324, 1973 R.I. LEXIS 957 (1973).

The fact that informer did not testify against defendant on drug charge did not deprive defendant of his right to confrontation where the informer was not the accuser and where state was unable to locate the informer. Frazier v. Howard, 112 R.I. 630 , 314 A.2d 141, 1974 R.I. LEXIS 1479 (1974).

Where the confession of a joint defendant who did not take the stand was introduced in evidence after the deletion of all references to the other two defendants, the court held that, since the two defendants’ connection with the confessing defendant was established by the independent testimony of two witnesses who were fully cross-examined, their constitutional right to confront witnesses under this amendment and former R.I. Const., Art. 1, § 10 (see now R.I. Const., Art. 1, Sec. 10 ) was not infringed by the admission of the confession. State v. Wilbur, 115 R.I. 7 , 339 A.2d 730, 1975 R.I. LEXIS 1111 (1975), overruled in part, State v. Aurgemma, 116 R.I. 425 , 358 A.2d 46, 1976 R.I. LEXIS 1291 (1976).

Although generally a defendant has a constitutional right under the Sixth and Fourteenth Amendments, to cross-examine a prosecution witness as to his present residence, without any obligation to explain the purpose of the questioning, where the personal safety of the witness is involved, the witness has been placed in his proper setting or environment and the defendant fails to demonstrate he has suffered any harm from the failure to disclose the witness’ exact address, such cross-examination may be properly excluded. State v. Capone, 115 R.I. 426 , 347 A.2d 615, 1975 R.I. LEXIS 1166 (1975).

Statute enacted to protect minors against stigma of disclosure of criminal records is unavailable in instances where defendant’s constitutional right of confrontation and attack upon credibility is withheld. State v. Myers, 115 R.I. 583 , 350 A.2d 611, 1976 R.I. LEXIS 1562 (1976).

Trial judge’s substitution of his personal knowledge drawn from other cases for proof at trial of a drug’s prohibited hallucinogenic character deprived defendant of his right to challenge the identity or expertise of those through whom the judge acquired his knowledge of the drug. State v. Welch, 117 R.I. 107 , 363 A.2d 1356, 1976 R.I. LEXIS 1605 (1976).

Where the trial justice refused to direct a prosecution witness to reveal her name and address because of concern for witness’ personal safety, and witness otherwise testified extensively about her background, this was a permissible restriction on defendant’s right to cross-examination. State v. Robichaud, 118 R.I. 684 , 376 A.2d 1053, 1977 R.I. LEXIS 1508 (1977).

The right to confront and cross-examine adverse witnesses is required in a parole violation hearing, unless the hearing officer specifically finds good cause for not allowing confrontation. State v. DeRoche, 120 R.I. 523 , 389 A.2d 1229, 1978 R.I. LEXIS 704 (1978).

A critical issue in determining the right to confrontation is always the availability of a witness. In respect to availability, a threshold determination must be made by the tribunal. If the witness is unavailable, then the tribunal may consider other elements such as reliability and evidentiary exceptions to the hearsay rule. It may also consider the effect of a statement against penal interest in determining reliability. State v. DeRoche, 120 R.I. 523 , 389 A.2d 1229, 1978 R.I. LEXIS 704 (1978).

In its enforcement of the confrontation clause, the Supreme Court of the United States has not manifested an intention to freeze at a given point in time the development of exceptions to the exclusionary hearsay rules where indicia of reliability would justify such exceptions, even though they constitute a departure from traditional evidentiary rules. State v. DeRoche, 120 R.I. 523 , 389 A.2d 1229, 1978 R.I. LEXIS 704 (1978).

Where trial was started while defendant was not present, over the objection of defendant’s counsel, and during defendant’s absence the only witness who saw defendant in possession of a handgun testified, and when defendant arrived in courtroom trial justice refused to allow defense counsel to proffer any explanation for defendant’s absence, a new trial was required. State v. Brown, 121 R.I. 422 , 399 A.2d 1222, 1979 R.I. LEXIS 1795 (1979).

In comparison to the right to call witnesses, confrontation and cross-examination present greater hazards to institutional interests. La Plante v. Southworth, 484 F. Supp. 115, 1980 U.S. Dist. LEXIS 9904 (D.R.I. 1980).

The better course at this time, in a period where prison practices are diverse and somewhat experimental, is to leave matters of confrontation and cross-examination to the sound discretion of the officials of state prisons. La Plante v. Southworth, 484 F. Supp. 115, 1980 U.S. Dist. LEXIS 9904 (D.R.I. 1980).

Within the reasonable limitations necessary in the prison disciplinary context, there is no requirement but merely a suggestion that a disciplinary committee state its reason for refusing to call a witness, whether it be irrelevance, lack of necessity or the hazards presented in the individual case. La Plante v. Southworth, 484 F. Supp. 115, 1980 U.S. Dist. LEXIS 9904 (D.R.I. 1980).

A trial justice did not abuse his discretion so as to violate defendant’s rights to confrontation and cross-examination by limiting cross-examination of a witness to those matters which had been testified to on direct examination. State v. Benevides, 420 A.2d 65, 1980 R.I. LEXIS 1844 (R.I. 1980).

The exercise of discretion by the trial justice in limiting the scope of cross-examination will not be disturbed except for clear abuse, and then only when such abuse constitutes prejudicial error. State v. Anthony, 422 A.2d 921, 1980 R.I. LEXIS 1852 (R.I. 1980).

Questions exceeding the proper limits of cross-examination are those that harass, annoy, or humiliate the witness, or questions that are irrelevant or offer no probative value. Questions of this nature are subject to the control of the trial justice. State v. Anthony, 422 A.2d 921, 1980 R.I. LEXIS 1852 (R.I. 1980).

Although the supreme court of the United States has ruled that a probationer or a parolee had a right at a revocation hearing to confront and cross-examine witnesses, the right of confrontation is satisfied if the trial justice has determined that the out-of-court declarant is available for cross-examination. State v. Potter, 423 A.2d 67, 1980 R.I. LEXIS 1864 (R.I. 1980).

If the out-of-court declarant is not available for cross-examination, then the trial justice is to make a specific finding that there is just cause for not permitting confrontation before the hearsay testimony is admitted into evidence. State v. Potter, 423 A.2d 67, 1980 R.I. LEXIS 1864 (R.I. 1980).

Defendant’s right under this amendment to confront witnesses was not violated where the victim was questioned by the judge in chambers out of the defendant’s presence but also out of the presence of the jury. State v. LaChappelle, 424 A.2d 1039, 1981 R.I. LEXIS 1018 (R.I. 1981).

A criminal defendant does have the right, both under this amendment and the due process clause of the Fourteenth Amendment, and former R.I. Const., art. I, § 10 (see now R.I. Const., Art. 1, Sec. 10 ) to be present at all stages of his trial where his absence may affect the fairness of the proceedings. State v. Souza, 425 A.2d 893, 1981 R.I. LEXIS 1037 (R.I.), cert. denied, 454 U.S. 840, 102 S. Ct. 148, 70 L. Ed. 2d 123, 1981 U.S. LEXIS 3372 (1981).

The presence of the informer at the scene of the alleged crime, or his involvement in the criminal activity for which the defendant is charged, has been viewed as a significant factor in the decision to require disclosure. State v. Souza, 425 A.2d 893, 1981 R.I. LEXIS 1037 (R.I.), cert. denied, 454 U.S. 840, 102 S. Ct. 148, 70 L. Ed. 2d 123, 1981 U.S. LEXIS 3372 (1981).

Where there is no showing that the informer was connected with the defendant’s criminal conduct, but was merely conveying information to law enforcement officials, nondisclosure of his identity is justified. State v. Souza, 425 A.2d 893, 1981 R.I. LEXIS 1037 (R.I.), cert. denied, 454 U.S. 840, 102 S. Ct. 148, 70 L. Ed. 2d 123, 1981 U.S. LEXIS 3372 (1981).

Where there was neither evidence nor contention that the informant was a participant in the criminal conduct under consideration and the identity of the informant was sought purely for the purpose of impeaching that portion of a prosecution witness’ testimony wherein he denied participation in the actual holdup, the trial judge did not abuse his discretion by allowing the informer to remain unidentified. State v. Souza, 425 A.2d 893, 1981 R.I. LEXIS 1037 (R.I.), cert. denied, 454 U.S. 840, 102 S. Ct. 148, 70 L. Ed. 2d 123, 1981 U.S. LEXIS 3372 (1981).

Where defendant was charged with the murder of his infant daughter and prior to his trial caused a subpoena duces tecum to be issued to the department for children and their families seeking access to records pertaining to the child and her mother (the state’s principal witness against defendant), defendant’s right to effective cross-examination, guaranteed by this amendment, U.S. Const., amend. 14, and former R.I. Const., art. 1, § 10 (see now R.I. Const., Art. 1, Sec. 10 ), was denied by the quashing of the subpoena. State v. Anthony, 440 A.2d 736, 1982 R.I. LEXIS 791 (R.I. 1982).

Where cross-examination on the issue of bias of a prosecution witness has been totally precluded by the trial court, the per se error standard applies to review of that decision. State v. DeBarros, 441 A.2d 549, 1982 R.I. LEXIS 810 (R.I. 1982); State v. Bourdeau, 448 A.2d 1247, 1982 R.I. LEXIS 990 (R.I. 1982).

A defendant is entitled to cross-examine a witness granted immunity with regard to his bias or interest in testifying on behalf of the state, and this encompasses the nature of the immunity agreement and any additional promises made to or understandings reached with the witness. State v. Anthony, 448 A.2d 744, 1982 R.I. LEXIS 963 (R.I. 1982).

Where prosecution witness refused at defendant’s trial to repeat his testimony given against defendant at earlier bail hearing, introduction of earlier testimony at trial was error where defendant had not been allowed at bail hearing to cross-examine witness regarding effect of promise of immunity on witness’s motivation to testify and where defendant cited circumstances affirmatively demonstrating untrustworthiness of the earlier testimony. State v. Anthony, 448 A.2d 744, 1982 R.I. LEXIS 963 (R.I. 1982).

Where judge conferred privately with minor female prosecuting witness in a rape case to dispel the embarrassment which had caused her to refuse to answer a question it was not during a stage of the trial and defendant’s right to confrontation was not violated. LaChappelle v. Moran, 699 F.2d 560, 1983 U.S. App. LEXIS 30817 (1st Cir. 1983).

To support a finding that a witness is unavailable due to illness, expert testimony must establish that the witness’s illness makes testifying relatively impossible, not merely inconvenient. State v. Hannagan, 473 A.2d 291, 1984 R.I. LEXIS 484 (R.I. 1984).

Where the sole witness’ credibility was a vital element in establishing defendant’s guilt and where the trial justice precluded the defendant from raising and probing the issues of motive, bias, or prejudice, effectively cutting off defendant’s right to test the witness’ credibility, the defendant’s constitutional right to confrontation was abrogated. State v. Freeman, 473 A.2d 1149, 1984 R.I. LEXIS 479 (R.I. 1984).

Since the purpose of cross-examination is to impeach a witness’s credibility, the general rule that confines the scope of cross-examination to facts brought out during direct examination is inapplicable when the questions are designed either to explain, contradict, or discredit any testimony given by the witness on direct examination or to test his accuracy, memory, veracity, or credibility. State v. Soto, 477 A.2d 945, 1984 R.I. LEXIS 519 (R.I. 1984).

The partiality of a witness may be explored at trial, and is always relevant for the purposes of discrediting a witness and thereby affecting the weight of his testimony; however, this does not permit a defendant to introduce evidence which is irrelevant to showing a witness’s purported bias. State v. Edwards, 478 A.2d 972, 1984 R.I. LEXIS 575 (R.I. 1984).

A per se error rule is applicable to cases in which a trial justice totally precludes cross-examination by defense counsel of the state’s key witness as to his motive or bias. State v. Parillo, 480 A.2d 1349, 1984 R.I. LEXIS 570 (R.I. 1984).

Trial court’s denial of defendant motion to examine and introduce medical records of only surviving eyewitness constituted a denial of his right to confrontation. State v. Parillo, 480 A.2d 1349, 1984 R.I. LEXIS 570 (R.I. 1984).

Town’s failure to preserve a sample of defendant’s breath used in breathalyzer test did not violate defendant’s right to confront and cross-examine the evidence against him. State v. Williams, 480 A.2d 1383, 1984 R.I. LEXIS 596 (R.I. 1984).

Right of a defendant in a criminal case to establish the motives of the witnesses against him, such as prejudice, bias, or interest, is an important component of this amendment’s right of confrontation. State v. Beaumier, 482 A.2d 1199, 1984 R.I. LEXIS 624 (R.I. 1984).

The right of cross-examination is a primary interest secured by the confrontation clause and the principal means by which the believability of a witness and the truth of his testimony are tested; the scope of this right, however, is a matter of judicial discretion; and it does not include the right to ask repetitive questions. State v. Waite, 484 A.2d 887, 1984 R.I. LEXIS 631 (R.I. 1984).

In-camera interview of child in sexual abuse proceedings did not violate defendant-father’s right to confrontation. In re James A., 505 A.2d 1386, 1986 R.I. LEXIS 428 (R.I. 1986).

Defendant’s state and federal constitutional rights to confrontation were not violated by the restriction of defense counsel’s cross-examination of a police officer who was the first to arrive at the scene of the murder where defendant’s purpose in attempting the cross-examination (to highlight the racial overtones of the entire incident) was ultimately served by the admission of other evidence. State v. White, 512 A.2d 1370, 1986 R.I. LEXIS 530 (R.I. 1986).

Petitioner was denied his due-process right to confrontation when the hearing officer, at the preliminary hearing stage of parole revocation proceedings, permitted a police detective to read the hearsay declarations of two child witnesses into evidence. Gaze v. State, 521 A.2d 125, 1987 R.I. LEXIS 421 (R.I. 1987).

A criminal defendant’s right to cross-examination is guaranteed by this amendment and by R.I. Const., art. I, § 10 , but, where the trial court allowed sufficient cross-examination to permit the jury fully to consider the question of the witness’ possible bias in favor of the alleged victim, defendant’s right to confrontation was satisfied. State v. Burke, 522 A.2d 725, 1987 R.I. LEXIS 433 (R.I. 1987), limited, State v. DiPetrillo, 922 A.2d 124, 2007 R.I. LEXIS 54 (R.I. 2007).

Where the only evidence defendant was allowed to place before the jury regarding a witness’s mental condition was that he had a “problem” with his memory and defense counsel was not permitted to elicit from the witness for the benefit of the jury the witness’s treatment for premature Alzheimer’s disease and the many other different conditions for which he was being treated, applying the harmless-error analysis to the facts, and particularly those elements of cross-examination that were not permitted concerning witness’s mental disease and the inferences that might be drawn therefrom, the error was not only harmless beyond a reasonable doubt but was extremely harmful to the development of defendant’s defense by restricting his ability to attack the credibility of the most important witness presented in support of the charges against him. State v. Manocchio, 523 A.2d 872, 1987 R.I. LEXIS 452 (R.I. 1987).

Trial justice did not abuse his discretion in denying defendant in a murder prosecution the opportunity to cross-examine witnesses as to the collateral matter of another suspect’s activities, where defendant failed to make an offer of proof or to introduce any evidence tending to show that the suspect could have committed the murder for which defendant was being tried. State v. Brennan, 526 A.2d 483, 1987 R.I. LEXIS 507 (R.I. 1987).

Error in restricting cross-examination of an assault victim regarding her alleged threats of suicide was not prejudicial, where the jury was presented with documented evidence that not only impugned her credibility but also supported defendant’s theory that the victim’s injuries were self-inflicted. State v. Carrera, 528 A.2d 331, 1987 R.I. LEXIS 525 (R.I. 1987).

A violation of the right to confrontation is subject to a harmless error analysis. State v. Payano, 528 A.2d 721, 1987 R.I. LEXIS 530 (R.I. 1987).

A federal district court’s complete foreclosure of cross-examination on the issue of a polygraph examination given to a coconspirator who testifies for the government constitutes an abuse of discretion and impairs the defendant’s constitutional right to confront and cross-examine witnesses. United States v. Lynn, 856 F.2d 430, 1988 U.S. App. LEXIS 12309 (1st Cir. 1988).

The denial of an opportunity to cross-examine an adverse witness does not fall into the category of constitutional errors that are automatically deemed prejudicial. State v. Canning, 541 A.2d 457, 1988 R.I. LEXIS 62 (R.I. 1988).

It is within the trial justice’s discretion to limit cross-examination once there has been sufficient cross-examination to satisfy the defendant’s right to confrontation. State v. Padula, 551 A.2d 687, 1988 R.I. LEXIS 146 (R.I. 1988).

The defendant has a right to have the department of children and their families (DCF) records relating to a corroborating witness produced pursuant to his right to cross-examination under the confrontation clauses of both the United States and the Rhode Island Constitutions. State v. Kelly, 554 A.2d 632, 1989 R.I. LEXIS 24 (R.I. 1989).

The statutory rebuttable presumption of § 11-37-13.2 that a child 13 or younger is unable to testify before the court without suffering unreasonable and unnecessary mental or emotional harm violates the confrontation clauses of both the federal and Rhode Island Constitutions. State v. Taylor, 562 A.2d 445, 1989 R.I. LEXIS 143 (R.I. 1989).

In a prosecution for sexual assault, the trial justice does not impermissibly limit the cross-examination of the complaining witness, even though defense counsel’s cross-examination of the victim may not have been as effective as he would have desired, where a significant cross-examination of the victim is allowed, and there is corroborating testimony from two other witnesses. State v. Parker, 566 A.2d 1294, 1989 R.I. LEXIS 165 (R.I. 1989).

A state witness, on cross-examination, disclosed his substantial criminal record, including the fact that at the time of his testimony he was on probation and was subject to a deferred sentence. Only when defense counsel attempted to elicit the witness’s understanding of what a deferred sentence entailed did the trial justice sustain the state’s objections. By that point in the cross-examination defendant’s constitutional right to confrontation had been amply satisfied, and the trial justice’s decision to limit questioning could not be considered an abuse of discretion. State v. Powers, 566 A.2d 1298, 1989 R.I. LEXIS 166 (R.I. 1989).

In a prosecution for sexual assault, admitting video-taped testimony of out-of-state physicians taken while the defendant is absent from the courtroom does not violate the defendant’s constitutional right to confront witnesses, where the defendant voluntarily absents himself and waives his right to confront the witnesses deposed in his absence. State v. Griffin, 567 A.2d 796, 1989 R.I. LEXIS 170 (R.I. 1989).

The admission of a medical examiner’s autopsy report, without requiring his testimony in person or by deposition, does not violate the confrontation clause, where the autopsy report possesses sufficient particularized guarantees of trustworthiness. Manocchio v. Moran, 919 F.2d 770, 1990 U.S. App. LEXIS 16913 (1st Cir. 1990), cert. denied, 500 U.S. 910, 111 S. Ct. 1695, 114 L. Ed. 2d 89, 1991 U.S. LEXIS 2449 (1991).

Admission of an unavailable informant’s statements violated defendant’s sixth amendment right to confront his accusers, where the testimony had the effect of bolstering the state’s case with impermissible hearsay and there was more than a reasonable probability that the testimony affected the verdict. State v. Braxter, 568 A.2d 311, 1990 R.I. LEXIS 4 (R.I. 1990).

The sixth amendment allows criminal defendants to offer testimony of witnesses on their behalf. There is no constitutional right to introduce irrelevant, immaterial, or prejudicial evidence and no constitutional right to introduce hearsay evidence even if it is relevant. State v. Malone, 568 A.2d 1378, 1990 R.I. LEXIS 2 (R.I. 1990).

Under the compulsory process clause, a criminal defendant has the right to present his own witnesses to establish a defense. The compulsory process clause, however, does not vest a defendant with the power to offer testimony free from the requisites of the adversarial system. State v. Bowling, 585 A.2d 1181, 1991 R.I. LEXIS 17 (R.I.), cert. denied, 501 U.S. 1210, 111 S. Ct. 2810, 115 L. Ed. 2d 982, 1991 U.S. LEXIS 3395 (1991).

Unconstitutional restriction of the defendant’s right to cross-examine an alleged victim and her husband to determine whether they had fabricated a sexual-assault complaint against the defendant in retaliation for his having accused the husband of stealing charitable donations is prejudicial error. State v. Texter, 594 A.2d 376, 1991 R.I. LEXIS 144 (R.I. 1991).

An appellant who was arrested in an apartment building for the distribution of cocaine was not entitled to postpone pretrial discovery until trial under the guise of a claimed right to confront the landlord where the appellant only sought information from the landlord that might have led to the discovery of evidence plainly available to appellant prior to trial. United States v. Arias-Santana, 964 F.2d 1262, 1992 U.S. App. LEXIS 12473 (1st Cir. 1992).

The defendant’s right to be confronted with witnesses against him was violated where the trial justice improperly refused to allow defendant’s counsel to cross-examine key prosecution witnesses on their motives or biases in testifying for the state. In re Douglas L., 625 A.2d 1357, 1993 R.I. LEXIS 160 (R.I. 1993).

The trial court did not improperly consider in a motion to reduce sentence the defendant’s exercise of his right to stand trial or his corollary right to hold the state to its burden of proving his guilt beyond a reasonable doubt through the presentation of testimony from the child victim, since the defendant forced the child to testify about the molestation in open court by exercising his right to stand trial and by presenting false testimony to the court in the hopes of escaping conviction and punishment, and had indicated his intention to appeal while knowing full well that what the little girl said from the stand was absolutely true. State v. Tiernan, 645 A.2d 482, 1994 R.I. LEXIS 219 (R.I. 1994).

In a murder trial, the trial justice did not err in refusing to permit defense counsel to inquire whether a prosecution witness, who had already been examined to show that he had been indicted for the felony of child molestation, was aware of the penalty for first-degree child molestation. The defendant was provided an adequate opportunity to bring out considerations relevant to motive or bias. State v. Sifuentes, 649 A.2d 500, 1994 R.I. LEXIS 255 (R.I. 1994).

The trial court did not commit an abuse of discretion amounting to prejudicial error by limiting the defendant’s cross-examination of a police detective who received information from another officer. Requiring the officer from whom the detective heard the information to be present increased reliability and was within the court’s discretion, particularly when the detective had no first-hand knowledge of the information. State v. Tempest, 651 A.2d 1198, 1995 R.I. LEXIS 2 (R.I. 1995).

When jurors consider evidence in the form of either fact or opinion that has not been presented at trial, a criminal defendant is denied the Sixth Amendment guarantees of confrontation, cross-examination, and assistance of counsel. State v. Hartley, 656 A.2d 954, 1995 R.I. LEXIS 96 (R.I. 1995).

The defendant’s right to confrontation was improperly limited since the defense counsel was prohibited from questioning the sexual abuse victim about the allegations that she made against other men to the Department of Children, Youth and Families investigator, and therefore, the defense was denied the opportunity to cross-examine the victim. State v. Pettiway, 657 A.2d 161, 1995 R.I. LEXIS 103 (R.I. 1995).

Although the juvenile record of the victim was not discoverable under Rule 16 of the Superior Court Rules of Criminal Procedure, if the defendant had been originally informed of the existence of the record he could have taken appropriate steps in the family court to have the record made available to him; thus, the defendant was denied his right of confrontation and was entitled to a new trial. State v. Sorel, 658 A.2d 505, 1995 R.I. LEXIS 100 (R.I. 1995).

In a violation of probation hearing, there was no abuse of discretion when the court found that the defendant’s minor son was psychologically unavailable to testify for or against the defendant. The detrimental effects of forcing the son to testify for the defendant and then face cross-examination would equal those of testifying on behalf of the state. State v. Casiano, 667 A.2d 1233, 1995 R.I. LEXIS 255 (R.I. 1995).

Five factors that are considered in making a determination whether a restriction on cross-examination constitutes harmless error include: 1) the importance of a witness’ testimony in the prosecution’s case; 2) whether the testimony is cumulative; 3) the presence or absence of evidence corroborating or contradicting the testimony of a witness on material points; 4) the extent of cross-examination otherwise permitted; and 5) the overall strength of the prosecution’s case. State v. Wiley, 676 A.2d 321, 1996 R.I. LEXIS 140 (R.I. 1996).

The defendant’s constitutional rights to confrontation were not violated by the restriction of the defense counsel’s cross-examination since the trial court allowed the counsel sufficient latitude to establish a defense theory and show witness bias, and the counsel’s further exploration would have been simply cumulative. State v. Wiley, 676 A.2d 321, 1996 R.I. LEXIS 140 (R.I. 1996).

Decision of trial justice to exclude evidence sought to be introduced to show bias in a witness was proper since the evidence sought to be introduced concerned the value of the defendant’s marital property; defendant was not competent to testify to the market value of the property. State v. Cote, 691 A.2d 537, 1997 R.I. LEXIS 58 (R.I. 1997).

The right to cross examination is not unlimited. Accordingly, since there was no evidence whatsoever that the witness had taken drugs on the day of the incident, or at any time thereabouts, such that the drug use would have affected the witness’ ability to observe and recall accurately the events of the day, there was no error in the trial court’s ruling precluding the introduction of the witness’ medical history referencing the drug use. State v. Gasparico, 694 A.2d 1204, 1997 R.I. LEXIS 193 (R.I. 1997).

There was no abuse of discretion in the trial justice declaring a witness unavailable where the testimony of a police officer, the issuance of a bench warrant for the witness after he had failed to appear at trial, and a search of the facilities where he may have been detained satisfied the requirement of reasonable good faith effort on the part of the prosecution. State v. Brown, 744 A.2d 831, 2000 R.I. LEXIS 12 (R.I. 2000).

Constitutional safeguards regarding confrontation of witnesses are satisfied once sufficient cross-examination has been allowed, and any further cross-examination is left within the sound discretion of the trial court. State v. Hazard, 745 A.2d 748, 2000 R.I. LEXIS 25 (R.I. 2000).

A trial court has an obligation to restrict laborious and repetitious cross-examination. State v. Hazard, 745 A.2d 748, 2000 R.I. LEXIS 25 (R.I. 2000).

There was no error in the trial court’s limiting the scope of cross-examination of a victim where the defense sought to elicit testimony of her complaints of excessive discipline purportedly lodged against her father and her mother’s former boyfriend, since such complaints are fundamentally different from a complaint of sexual molestation and their admission would have served only to confuse and mislead the jury. State v. Botelho, 753 A.2d 343, 2000 R.I. LEXIS 138 (R.I. 2000).

A defendant ought to be granted wide latitude by the trial court when inquiring into the possible bias, motive, or prejudice of a witness, including the witness’s subjective expectations. State v. Bustamante, 756 A.2d 758, 2000 R.I. LEXIS 178 (R.I. 2000).

Since the defendant’s wife refused to testify and was deemed unavailable, a police officer was allowed to testify as to her excited utterances made in a telephone call to report domestic violence. State v. Medina, 767 A.2d 655, 2001 R.I. LEXIS 47 (R.I. 2001).

Police officer’s testimony was properly excluded on the grounds that it would have been cumulative where there were other witnesses which had testified concerning defendant’s demeanor and behavior, including the victim, who spent the 14-hour ordeal as defendant’s hostage, and another officer, who arrived at the scene 30 minutes before the requested witness arrived. State v. Thornton, 800 A.2d 1016, 2002 R.I. LEXIS 171 (R.I. 2002).

Trial justice did not abuse his discretion or violate defendants’ constitutional rights under R.I. Const. art. I, § 10 or U.S. Const. amend. VI, in limiting defendants’ cross-examinations of witnesses at trial as the sufficiency of defendants’ cross-examinations was evidenced by the fact that they were able to solicit from the witnesses numerous admissions of their uncertainty about several details of the fight which led to the victim’s death. State v. DePina, 810 A.2d 768, 2002 R.I. LEXIS 221 (R.I. 2002).

State and federal rights of confrontation were not violated by the trial court’s placement of reasonable limits on cross-examination; while defendant had a right to try to show that others could have committed the murder in question, there was no right to engage in pure speculation, and counsel had not backed up these theories with any offer of proof. State v. Wright, 817 A.2d 600, 2003 R.I. LEXIS 26 (R.I. 2003).

Sixth Amendment to the United State Constitution, made applicable to the states through the Fourteenth Amendment, affords a criminal defendant the right to confront the witnesses against him or her; R.I. Const. art. I, § 10 also guarantees a defendant the right of confrontation. State v. Sosa, 839 A.2d 519, 2003 R.I. LEXIS 232 (R.I. 2003).

Former recorded testimony of a State’s witness was properly admitted at defendant’s second trial and did not violate the Confrontation Clause or R.I. Const. art. I, § 10 where: (1) defendant cross-examined the witness at defendant’s first trial; (2) the State made a good faith effort to procure the witness’s attendance at the second trial; and (3) the State was not required to notify the witness that his attendance at a second trial might be required. State v. Sosa, 839 A.2d 519, 2003 R.I. LEXIS 232 (R.I. 2003).

Right to face-to-face confrontation is not absolute; the strict requirement of confrontation in the Sixth Amendment is tempered by the dictates of practicality and judicial economy. State v. Sosa, 839 A.2d 519, 2003 R.I. LEXIS 232 (R.I. 2003).

Where the witness invoked the self-incrimination privilege under U.S. Const. amend. V, the witness became unavailable, such that the Sixth Amendment right to confrontation was inapplicable; the trial court did not err in refusing to allow defendant to call the witness before the jury due to the witness’s determined unavailability. State v. Ramirez, 936 A.2d 1254, 2007 R.I. LEXIS 130 (R.I. 2007).

Admission of a statement by the deceased victim of a murder, for which defendant was on trial, was proper, where the victim disclosed that he was a confidential police informant, the statement was not testimonial in nature since it was provided in an informal setting regarding who the victim was on the phone with, and the statement possessed the necessary guarantee of trustworthiness to satisfy the requirements of R.I. R. Evid. 804 (c); accordingly, there was no confrontation right violation under U.S. Const. amend. VI. State v. Ramirez, 936 A.2d 1254, 2007 R.I. LEXIS 130 (R.I. 2007).

Where a witness invoked the right not to testify under U.S. Const. amend. V and then disappeared from the courtroom and was deemed “unavailable” pursuant to R.I. R. Evid. 804 (a)(5), the trial court did not abuse its discretion or violate defendant’s confrontation rights under U.S. Const. amend. VI and R.I. Const. art. 1, § 10 by reading to the jury prior recorded testimony under Rule 804(b)(1) provided by the witness in a matter that had resulted in a mistrial. State v. Ramirez, 936 A.2d 1254, 2007 R.I. LEXIS 130 (R.I. 2007).

Admission of a witness’s statement to police, a detective’s jury testimony, and use of the leading questions did not implicate the Sixth Amendment, as the witnesses testified at trial. State v. McManus, 990 A.2d 1229, 2010 R.I. LEXIS 40 (R.I. 2010).

Under the “raise or waive” rule, defense counsel’s objection to a witness’s hearsay testimony without explanation was insufficient to preserve the confrontation clause issue on appeal, and the narrow exception to the “raise or waive” rule was inapplicable because defendant’s constitutional argument was not novel at the time the witness testified. State v. Moten, 64 A.3d 1232, 2013 R.I. LEXIS 81 (R.I. 2013).

Defendant was not deprived of his constitutional rights to confront and cross-examine the complaining witness by the exclusion of evidence of the prior sexual-abuse allegations the complaining witness purportedly made against her biological father when she was five years old. While both allegations were of sexual misconduct against father figures, the prior accusations defense counsel sought to introduce were different from the specific allegations against defendant of sexual penetration and the taking of nude photographs; and defense counsel had the opportunity to thoroughly attack the complaining witness’s credibility as defendant was afforded an opportunity to inquire into her purported motive to bring false accusations against defendant. State v. Danis, 182 A.3d 36, 2018 R.I. LEXIS 38 (R.I. 2018).

— Appellate Review.

Once sufficient examination has been given to satisfy the right of confrontation, the trial justice has the discretion to determine the proper subjects and scope of inquiry. Appellate review is limited to disturbing the trial justice’s ruling only in those cases wherein he or she has clearly abused his or her reasonable discretion. State v. Canning, 541 A.2d 457, 1988 R.I. LEXIS 62 (R.I. 1988).

— Confidentiality.

A proposal absolutely barring from evidence at trial confidential communications between a sexual assault counselor and a sexual assault victim violated the right of an accussed to confront his or her accusers, to obtain compulsory process, and to offer testimony. Advisory Opinion to House of Representatives, 469 A.2d 1161, 1983 R.I. LEXIS 1110 (R.I. 1983).

In a prosecution for sexual abuse, the trial court did not err in refusing to grant the defendant broad access to the victim’s psychotherapy records on the alleged grounds that the victim has waived her psychotherapist-patient privilege by testifying about her discussions of the abuse with her doctor. The trial court’s in camera review of the privileged information struck the requisite balance between the defendant’s constitutional right to effective cross-examination and the victim’s right to confidentiality. A determination by the trial court that the victim’s psychotherapy records were irrelevant rendered unnecessary any consideration of whether the psychotherapist-patient privilege had been waived. State v. Kholi, 672 A.2d 429, 1996 R.I. LEXIS 41 (R.I. 1996).

— Cross-Examination.

The defendant’s right to cross-examine his accusers was violated since the trial court precluded the defendant from cross examining a witness, who placed him at the scene of a burglary, regarding any criminal activities she may have engaged in with her current boyfriend who was also charged with breaking and entering. The evidence was relevant and should have been admitted because it was evidence that tended to make the existence of a motive by the witness to testify more or less probable than it would be without the evidence. State v. Olsen, 610 A.2d 1099, 1992 R.I. LEXIS 123 (R.I. 1992).

The failure of defense counsel to object to an inappropriate question posed by the prosecutor on direct examination did not transmogrify that improper question or its line of inquiry into a proper one for purposes of defense counsel’s cross-examination. State v. Barrett, 768 A.2d 929, 2001 R.I. LEXIS 87 (R.I. 2001).

Defendant was not impermissibly limited in his right to cross-examine witnesses in his criminal trial pursuant to U.S. Const. amend. VI and R.I. Const. Decl. Rights art. 1, § 10 , where he was given “reasonable latitude” to make his relevant inquiries; his requests to cross-examine were either irrelevant and immaterial. State v. Werner, 831 A.2d 183, 2003 R.I. LEXIS 145 (R.I. 2003), cert. denied, 540 U.S. 1123, 124 S. Ct. 1083, 157 L. Ed. 2d 921, 2004 U.S. LEXIS 356 (2004).

Limitations placed on defendant’s cross-examination of police did not deny defendant’s confrontation rights; the trial court merely refused to permit an in-court re-enactment of the arrest. State v. Fisher, 844 A.2d 112, 2004 R.I. LEXIS 55 (R.I. 2004).

In determining whether an erroneous limitation on cross-examination is harmless, an appellate court considers: (1) the importance of the witness’s testimony to the prosecution’s case; (2) whether the testimony was cumulative; (3) the presence or absence of corroborating or contradictory evidence; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution’s case. State v. D'Alessio, 848 A.2d 1118, 2004 R.I. LEXIS 70 (R.I. 2004).

Right to cross-examination does not include an unfettered license to ask any question that a defendant may desire; a trial justice may properly act within his or her discretion to restrict unduly harassing or repetitive interrogation. State v. D'Alessio, 848 A.2d 1118, 2004 R.I. LEXIS 70 (R.I. 2004).

The court may limit a proposed line of questioning if it is not relevant to an issue, or if the proposed questioning, even if relevant, is outweighed by any of the reasons prescribed in R.I. R. Evid. 403 . State v. D'Alessio, 848 A.2d 1118, 2004 R.I. LEXIS 70 (R.I. 2004).

Trial court properly precluded defendant from cross-examining his girlfriend, who was a witness in his criminal trial, regarding her claim that she was not violent by asking her about another witness’s comment that the victim had been fearful of the girlfriend, as such question would have been irrelevant, it would have invaded the jury’s province of determining the credibility of the witnesses, and accordingly, defendant’s right to confrontation under U.S. Const. amend. VI and R.I. Const. art. 1, § 10 was not violated. State v. Drew, 919 A.2d 397, 2007 R.I. LEXIS 40 (R.I. 2007).

Trial court erred in limiting defendant in a felony assault case from cross-examining the accusing witness, other than as to the single question about whether the victim planned to civilly sue defendant. As a result of the limitation, defendant was not permitted to fully confront the victim about his bias toward defendant and potential need to exaggerate the victim’s injuries after the victim stated that he did indeed intend to civilly sue defendant. State v. Tiernan, 941 A.2d 129, 2008 R.I. LEXIS 5 (R.I. 2008).

Trial court did not improperly limit defendant’s cross examination of the 12-year-old victim of molestation or of the 18-year-old niece whom defendant allegedly molested between eight and 12 years before trial and, thus, did not violate defendant’s right to confront witnesses in violation of U.S. Const. amend. VI and R.I. Const. art. I, § 10 . The trial court properly limited the cross-examination, especially since defendant was challenging their general credibility and had held a voir dire of the niece pursuant to R.I. R. Evid. 608 (b) for the purpose of exploring an allegation of theft regarding her, and defendant did not pursue a theory or motive or bias against those two witnesses. State v. Merida, 960 A.2d 228, 2008 R.I. LEXIS 118 (R.I. 2008).

R.I. Super. Ct. R. Crim. P. 16 , U.S. Const. amend. VI, and R.I. Const. art. 1, § 10 , were not violated by a trial court’s refusal to give defendant a transcript of a witness’s immunity hearing. The prosecutor’s summary of the immunity hearing and the justice’s comments when granting the witness immunity provided defendant the information he needed in order to meaningfully cross-examine the witness as to the grant of immunity. State v. Diefenderfer, 970 A.2d 12, 2009 R.I. LEXIS 55 (R.I. 2009).

Defendant’s right to confrontation under R.I. Const. art. I, § 10 was not violated by the trial justice’s restricting of defense counsel’s cross-examination of the victim on a collateral matter. State v. Albanese, 970 A.2d 1215, 2009 R.I. LEXIS 59 (R.I. 2009).

In an action charging defendant with battery against a maintenance worker, defendant’s right to cross-examination under R.I. Const. art. I, § 10 was not violated by the trial justice’s refusal to allow testimony regarding a temporary restraining order issued against the property management company, because such evidence would have been cumulative. State v. Albanese, 970 A.2d 1215, 2009 R.I. LEXIS 59 (R.I. 2009).

Defendant was properly prevented under R.I. Const. art. I, § 10 and U.S. Const. amend. VI from cross-examining a victim with regard to the victim’s purported previous accusation of molestation against the victim’s godfather as defendant sought to introduce the prior accusation to undermine the victim’s general credibility, and not as evidence of the victim’s motive, possible bias, or to show that the victim had a pattern of alleging sexual assault under R.I. R. Evid. 404 (a) and 608(b); the State’s apparent decision not to prosecute the godfather was not evidence that the allegation was false. State v. Manning, 973 A.2d 524, 2009 R.I. LEXIS 105 (R.I. 2009).

Defense counsel was afforded ample opportunity to cross-examine a victim sufficient to satisfy the defendant’s constitutional right of confrontation under the Sixth Amendment, U.S. Const. amend. VI and R.I. Const. art. I, § 10 as the victim was visibly pregnant at the trial, and it was proper to preclude the victim’s cross-examination based upon a theory of sexual naivete; without a persuasive rationale for the probative value of allowing the line of questioning to impeach the victim’s general credibility, the trial justice properly considered the possible prejudicial effects of allowing an inquiry into a collateral matter. State v. Manning, 973 A.2d 524, 2009 R.I. LEXIS 105 (R.I. 2009).

Trial justice limited defendant’s cross-examination pursuant to R.I. R. Evid. 611 (b) of the mothers of his sexual assault victims in an appropriate manner, as defendant’s questions were clearly outside the limited scope of direct examination; accordingly, his confrontation rights under U.S. Const. amend. VI and R.I. Const. art. I, § 10 were not violated. State v. Rivera, 987 A.2d 887, 2010 R.I. LEXIS 24 (R.I. 2010).

Trial justice’s refusal to allow cross-examination on the victim’s allegations against her mother did not violate the Confrontation Clause where defendant deftly tested the consistency of the victim’s testimony at trial and in her prior statements, during the voir dire hearing, the victim denied that the bully told her to make a rape allegation, and allowing the cross-examination would have served only to confuse the jury. State v. Bojang, 83 A.3d 526, 2014 R.I. LEXIS 9 (R.I. 2014).

Trial justice did not abuse his discretion in excluding questions about a witness’s possible grudge against defendant’s alleged co-conspirator because sufficient cross-examination was permitted to satisfy the constitutional safeguards; the issue of the witness harboring a grudge against the alleged co-conspirator was “so tenuously related, if at all, to the issue of [his] possible bias against defendant”, and defendant was afforded “reasonable latitude” to establish biases that the witness could have. State v. Johnson, 251 A.3d 872, 2021 R.I. LEXIS 45 (R.I. 2021).

— — Fingerprint Expert.

Trial court did not abuse its discretion in preventing defendant from asking the fingerprint expert about inaccuracies because the impact of a particular FBI investigation on the entire field of fingerprint analysis was irrelevant to the prosecution; defendant’s right to cross-examination was not violated because defendant was afforded substantial leeway to question the expert about the overall reliability of fingerprint evidence and the procedures the expert followed. State v. Isom, 135 A.3d 1210, 2016 R.I. LEXIS 37 (R.I. 2016).

— Evidence.

Introduction into evidence of an autopsy report for the purpose of proving the cause of death, without the personal presence of the medical examiner who prepared and executed the report, did not violate the confrontation clause. Manocchio v. Moran, 919 F.2d 770, 1990 U.S. App. LEXIS 16913 (1st Cir. 1990), cert. denied, 500 U.S. 910, 111 S. Ct. 1695, 114 L. Ed. 2d 89, 1991 U.S. LEXIS 2449 (1991).

Prosecutor’s failure to perform his constitutional duty of disclosing requested material evidence relating to the key prosecution witness’s record of criminal convictions violated the defendant’s due process rights to a fair trial. Ouimette v. Moran, 762 F. Supp. 468, 1990 U.S. Dist. LEXIS 19422 (D.R.I. 1990), aff'd, 942 F.2d 1, 1991 U.S. App. LEXIS 17793 (1st Cir. 1991).

Exclusion of alibi testimony as a discovery sanction does not violate the defendant’s right under the compulsory confrontation clause, where the trial justice concludes that the defendant seized upon the alibi defense after having heard the state’s entire case. State v. Bowling, 585 A.2d 1181, 1991 R.I. LEXIS 17 (R.I.), cert. denied, 501 U.S. 1210, 111 S. Ct. 2810, 115 L. Ed. 2d 982, 1991 U.S. LEXIS 3395 (1991).

Toxicology reports created by the department of health are just as reliable as a medical examiner’s autopsy report, so that allowing them to be introduced at trial does not violate a defendant’s rights under the confrontation clause. State v. Tavares, 590 A.2d 867, 1991 R.I. LEXIS 86 (R.I. 1991).

The right of confrontation does not bar the admission of all hearsay evidence. State v. Correia, 600 A.2d 279, 1991 R.I. LEXIS 174 (R.I. 1991).

When an out-of-court statement is offered and the declarant is not available, courts must engage in a case-by-case analysis to determine whether the right of confrontation of the accused is violated. The reliability of the hearsay is determinative of the statement’s admissibility. State v. Correia, 600 A.2d 279, 1991 R.I. LEXIS 174 (R.I. 1991).

The trial justice properly sustained the state’s objection to the defense’s inquiry into the victim-witness’ prior posting of a bond where extensive inquiry was otherwise permitted on his status as an illegal alien, his fraudulent use of an alias, and prosecutorial immunity offers. State v. Tutt, 622 A.2d 459, 1993 R.I. LEXIS 92 (R.I. 1993).

In a prosecution for driving with a suspended license, a driver’s abstract from the Registry of Motor Vehicles was clearly admissible under Rules 901(b)(7) and 902(4) of the Rhode Island Rules of Evidence, and was not excluded under Rule 803(8)(B) because it did not contain information observed by police officers or law-enforcement personnel. Also, the admission of this abstract did not violate the defendant’s right to confrontation under the United States and Rhode Island Constitutions by allowing, in effect, New York officials to testify about violations in that state. The report did not contain any statements by New York officials, only a notation of the New York violation. State v. D'Alo, 649 A.2d 498, 1994 R.I. LEXIS 256 (R.I. 1994).

In a joint trial, introduction of codefendant’s confession was prohibited because, even though blanks and the word “delete” were substituted for defendant’s name, the confession fell within the class of statements to which the protections of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) applied. Gray v. Maryland, 523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294, 1998 U.S. LEXIS 1605 (1998).

Because the contested statements were clearly against the penal interest of the declarant coconspirator, and because the circumstances surrounding the statements and other corroborating evidence provided indicia of reliability, the statements were properly admitted although the declarant was unavailable for cross-examination. State v. Pacheco, 763 A.2d 971, 2001 R.I. LEXIS 3 (R.I. 2001).

Defendant was not denied the right to confront witnesses pursuant to U.S. Const. amend. VI, where defendant was accused of breaking and entering, assault, and battery, and defendant sought to cross-examine the victim regarding prior cordial meetings between them; the questioning was properly found to be irrelevant under R.I. R. Evid. 401 , as previous amicable interactions between defendant and the victim did not serve to disprove subsequent allegations of violent conduct. State v. Caprio, 819 A.2d 1265, 2003 R.I. LEXIS 82 (R.I. 2003).

Trial court’s refusal to allow defendant to inquire into the victim’s mental health in his criminal action, based upon an assault with a knife wherein defendant’s claim was that the victim was the aggressor and that he was acting in self-defense, did not violate defendant’s confrontation rights under U.S. Const. amend. VI or R.I. Const. art. 1, § 10 , as defendant put forward his version of events in front of the jury, and the restriction imposed on the scope of the cross-examination of the victim was reasonable; inquiry was prohibited into the victim’s mental health status because without a showing of sufficient probative worth, the concern that the victim’s mental health would confuse or mislead the jury required limitation pursuant to R.I. R. Evid. 403 . State v. Lorenzo, 891 A.2d 864, 2006 R.I. LEXIS 24 (R.I. 2006).

Where a child’s father caught defendant molesting the child, defendant’s first-degree child molestation conviction was upheld because the admission of the recording of the father’s 911 call did not violate the Confrontation Clause since the 911 call was not testimonial in nature. State v. Bergevine, 942 A.2d 974, 2008 R.I. LEXIS 25 (R.I. 2008).

Defendant’s Sixth Amendment Confrontation Clause rights were not violated when a jury was allowed to hear recorded statements that defendant made to a cellmate who died before defendant’s trial for murder, first-degree robbery, and other offenses. The cellmate’s statements were not offered to prove the truth of the matters asserted, but were offered to provide context showing defendant’s knowledge of the crimes. State v. DeJesus, 947 A.2d 873, 2008 R.I. LEXIS 64 (R.I. 2008).

In defendant’s prosecution for the murder of his estranged wife’s boyfriend, defendant’s right to confrontation was not violated under U.S. Const. amend. VI or R.I. Const. art. I, § 10 when the trial court permitted the State to read into evidence significant portions of testimony given by the wife at defendant’s probation violation hearing as defendant had a meaningful opportunity to cross-examine the wife at the hearing, which was shown by the fact that the hearing officer had found the wife’s testimony to be inconsistent. State v. Gautier, 950 A.2d 400, 2008 R.I. LEXIS 89 (R.I. 2008).

Trial justice did not abuse the justice’s discretion at defendant’s trial for child abuse in excluding testimony by defendant’s parent that, when defendant was an infant, defendant broke defendant’s leg when defendant’s parent lifted defendant up and out of defendant’s crib, because the testimony would have been irrelevant, confusing, and led to argument about brittle bone disease wherein both sides had told the justice on the record that they would not argue brittle bone disease. State v. Verry, 102 A.3d 631, 2014 R.I. LEXIS 145 (R.I. 2014).

— Expert Opinion.

Where defendant had ample opportunity to confront the witness who undertook the critical stage of a DNA analysis, supervised over and had personal knowledge of the protocols and process of all stages involved in the DNA testing, reviewed the notes and data produced by all previous analysts, and testified to the controls employed by the testing lab to safeguard against the possibility of testing errors, the right to confrontation under U.S. Const. amend. VI and R.I. Const. art. 1, § 10 was satisfied. State v. Lopez, 45 A.3d 1, 2012 R.I. LEXIS 91 (R.I. 2012).

Numerical identifiers in an allele table used in a DNA analysis constitute testimonial statements that are subject to the dictates of the Confrontation Clause of U.S. Const. amend. VI. The subjective analysis involved in the DNA-profiling stage is the decisive point at which raw data inevitably is crafted and polished into what may be deemed testimonial material. The numerical identifiers in the allele table are the product solely of the analyst’s expertise and independent analysis of the graphical raw data. State v. Lopez, 45 A.3d 1, 2012 R.I. LEXIS 91 (R.I. 2012).

— Harmless Error.

Although it was error to deny the defendant an opportunity to inquire into the possible bias of a witness, the error was harmless in view of the extensive record of inculpatory evidence presented in the case. State v. Bustamante, 756 A.2d 758, 2000 R.I. LEXIS 178 (R.I. 2000).

Because it was clear that the trial justice’s decision not to permit one particular question to be posed to the victim’s brother did not preclude defense counsel from being able to mount a vigorous record-based attack on the credibility of that witness, as the jury had been made aware during the trial of the involvement of the above-referenced persons in the drug business, any error regarding the scope of cross-examination under R.I. R. Evid. 806 and the right to confrontation was harmless. State v. Lopez, 943 A.2d 1035, 2008 R.I. LEXIS 29 (R.I. 2008).

— Mentally Ill Witness.

Defendant who declined to challenge witness’ competence and who repeatedly pointed out on cross-examination witness’ history of mental illness was not denied an opportunity for effective cross-examination. State v. Lopez, 583 A.2d 529, 1990 R.I. LEXIS 177 (R.I. 1990).

— Parole Revocation Hearing.

In a parole revocation hearing, which is not part of the criminal-prosecution process, the court did not err in admitting into evidence the victim’s written statement, since the victim could not be found to testify at the revocation hearing. State v. Hazard, 671 A.2d 1225, 1996 R.I. LEXIS 53 (R.I. 1996).

Counsel for Defense.

Order of court appointing attorney for one defendant to act also for his co-defendant, after objections by defendant that he wished his own attorney, violated defendant’s constitutional right to counsel, especially where there existed a conflict of interest. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680, 1942 U.S. LEXIS 979 (1942).

At least in capital cases where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy or the like, it is the duty of the court, whether requested or not, to assign counsel for use of defendant. Williams v. Kaiser, 323 U.S. 471, 65 S. Ct. 363, 89 L. Ed. 398, 1945 U.S. LEXIS 2540 (1945).

Where trial court without warning and over protest of petitioner forced him to plead to the information without the aid and advice of counsel, whose presence he requested, there was a denial of petitioner’s rights under this amendment. House v. Mayo, 324 U.S. 42, 65 S. Ct. 517, 89 L. Ed. 739, 1945 U.S. LEXIS 2465 (1945), overruled in part, Hohn v. United States, 524 U.S. 236, 118 S. Ct. 1969, 141 L. Ed. 2d 242, 1998 U.S. LEXIS 3887 (1998).

Defendant was not deprived of benefit of counsel by virtue of superior court granting motion of defendant’s counsel to withdraw, where motion was not filed until after verdict, and where defendant had sufficient funds to hire other counsel but preferred to argue case himself in the supreme court. Lee v. Kindelan, 80 R.I. 212 , 95 A.2d 51, 1953 R.I. LEXIS 54 , cert. denied, 345 U.S. 1000, 73 S. Ct. 1146, 97 L. Ed. 1406, 1953 U.S. LEXIS 1975 (1953).

Where defendant accused of murder was interrogated without first being informed that an attorney would be appointed for him free of charge if he could not afford one, mere fact that defendant was employed as a carpenter and might have been able to hire an attorney to come to the police station for an hour or two while he was being interrogated did not satisfy prosecution’s burden of proving (if it was going to use defendant’s statements from the interrogation) that defendant had ample funds with which to secure an attorney. State v. Gendreau, 106 R.I. 332 , 259 A.2d 855, 1969 R.I. LEXIS 632 (1969).

Where defendant, accused of murder, arrested, and interrogated prior to Miranda v. Arizona (1966), 384 US 436, 16 Led 694, but tried after such decision, was informed prior to interrogation that he had a right to remain silent, that any statement he made could be used against him, and that he had a right to have an attorney, but was not informed that an attorney would be appointed for him free of charge if he could not afford one, statements made by him during such interrogation could not be used against him in absence of showing by state that he had ample funds with which to secure an attorney who would not only represent him during interrogation, but also provide him with all services which might thereafter be necessary, including those incidental to murder trial. State v. Gendreau, 106 R.I. 332 , 259 A.2d 855, 1969 R.I. LEXIS 632 (1969).

Where one of defendant’s attorneys had been permitted to withdraw because of defendant’s lack of cooperation and his successor asked to withdraw for the same reason and his inability to confer with the defendant, whereupon the court refused his request to withdraw on the ground that the lack of preparation for trial was of the defendant’s own making, after which the attorney skillfully and effectively represented defendant in the trial, defendant’s right to representation by counsel was not abridged. State v. Correia, 106 R.I. 655 , 262 A.2d 619, 1970 R.I. LEXIS 970 (1970).

At hearing on motion of attorney general to impose deferred sentence on defendant for violation of deferred sentence agreement, where, according to defendant’s sworn statement, counsel was appointed for him only a few minutes before the hearing with no opportunity for meaningful conferring, defendant was denied his right of counsel as guaranteed by this amendment and made applicable to the states by virtue of the due process clause of the Fourteenth Amendment, notwithstanding defendant failed to furnish supreme court with transcript of hearing, since court was persuaded that the transcript would have shed no light on this allegation and applied the rule that sworn statements in petitions for extraordinary writs that are not denied are assumed to be true. O'Neill v. Sharkey, 107 R.I. 524 , 268 A.2d 720, 1970 R.I. LEXIS 804 (1970).

While an accused probation violator at a hearing conducted pursuant to the state’s contention that he is in violation of the terms of his probation is not entitled to all the due process guarantees inherent in a strict or formal trial, he is entitled to representation by counsel appointed sufficiently in advance to make that representation meaningful, to be heard in his own defense, and to cross-examine witnesses produced against him. O'Neill v. Sharkey, 107 R.I. 524 , 268 A.2d 720, 1970 R.I. LEXIS 804 (1970).

A decision of the family court adjudicating accused, a 16 year old, to be a delinquent and committing him to a correctional institution until age 21 because of his alleged commission of rape, would not be upheld where part of the evidence against him was based on a pre-indictment line-up where he was not represented by counsel and had not waived his right to counsel, and where the error was not harmless. In re Holley, 107 R.I. 615 , 268 A.2d 723, 1970 R.I. LEXIS 811 (1970).

A juvenile who is suspected of doing an act that would constitute a crime if he were an adult has a right to counsel at a pretrial line-up that he is part of and, as an adjunct to this right, the juvenile and his parents are entitled to be informed that the juvenile has this right to counsel and, further, that one will be appointed if necessary; otherwise, the election to proceed in the absence of counsel cannot be deemed an intelligent waiver of the accrued right. In re Holley, 107 R.I. 615 , 268 A.2d 723, 1970 R.I. LEXIS 811 (1970).

The right to the presence of counsel at a line-up embraces a pre as well as a post-indictment line-up. Once the right to counsel at a line-up has attached, the suspect is entitled to be informed of this and also be told that counsel will be appointed if necessary; otherwise his election to proceed in the absence of counsel cannot be deemed to be an intelligent waiver of his sixth amendment right. In re Holley, 107 R.I. 615 , 268 A.2d 723, 1970 R.I. LEXIS 811 (1970).

In order to work a delay by a last minute discharge of counsel, there must exist exceptional circumstance and a motion for such continuance is addressed to the sound discretion of the trial judge. State v. Monteiro, 108 R.I. 569 , 277 A.2d 739, 1971 R.I. LEXIS 1308 (1971).

Where the record indicated that defendant was afforded over 15 months to obtain counsel of his choice, that he was at large on bail during this period, that there were no facts indicating denial of normal facilities and resources to secure counsel of his own choice, the defendant’s last minute request for discharge of his lawyer at the threshold of jury selection was a calculated maneuver to avoid trial on the merits and therefore the court was well within its discretion in denying the request. State v. Monteiro, 108 R.I. 569 , 277 A.2d 739, 1971 R.I. LEXIS 1308 (1971).

An indigent charged with a misdemeanor for which he could be imprisoned for more than six months is entitled to counsel supplied by the court and to be informed of this right upon arraignment. State v. Holliday, 109 R.I. 93 , 280 A.2d 333, 1971 R.I. LEXIS 1029 (1971).

The rule of United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), guaranteeing the assistance of counsel at any critical stage of the proceedings, need not be applied retroactively. State v. Souza, 110 R.I. 261 , 292 A.2d 214, 1972 R.I. LEXIS 908 (1972).

Where defendant, given Miranda warnings, was exercising his rights by waiting to consult counsel, further police questioning could not be justified as having been initiated by waiver of privilege against self-incrimination and right to counsel when defendant remarked only that he was in a jam. State v. Lachapelle, 112 R.I. 105 , 308 A.2d 467, 1973 R.I. LEXIS 960 (1973).

Where defendant pleaded guilty believing and relying on his court-appointed counsel’s representations that a plea bargain had been agreed to by the state, when in fact no such bargain had been reached, defendant’s conviction was a product of ineffective assistance of counsel to such an extent as to render the proceedings a sham and deprive defendant of his right to counsel. Santos v. Laurie, 433 F. Supp. 195, 1977 U.S. Dist. LEXIS 15562 (D.R.I. 1977).

Where defendant pleaded guilty believing and relying on counsel’s representation that a plea bargain agreement had been reached with the state, when in fact no such agreement existed, and defendant later prevailed in a habeas corpus claim based upon the involuntary and unknowing character of his plea, either the state could agree to impose the lighter sentence that defendant believed had been bargained for, or else the defendant would be released or be tried or permitted to plead anew. Santos v. Laurie, 433 F. Supp. 195, 1977 U.S. Dist. LEXIS 15562 (D.R.I. 1977).

Failure of defense counsel to press a suppression motion did not constitute incompetence, where at most his mistake permitted the introduction of a small amount of cumulative evidence, and where of four charges for the sale of cocaine the jury acquitted defendant on two and was hung on a third. United States v. Underwood, 440 F. Supp. 499, 1977 U.S. Dist. LEXIS 13136 (D.R.I. 1977).

Trial court improperly denied defendant’s request for continuance to procure private counsel, where public defender doubted his responsibility to represent defendant and failed to prepare a defense, and where private counsel secured by defendant’s family was unable to appear on date set by court for hearing. State v. Dias, 118 R.I. 499 , 374 A.2d 1028, 1977 R.I. LEXIS 1490 (1977).

Errors in rulings on fundamental deprivations, such as denial of counsel, at preliminary hearing stage are not cured by later rulings, even if correct, made at trial. State v. Kachanis, 119 R.I. 439 , 379 A.2d 915, 1977 R.I. LEXIS 1947 (1977).

Where defendant claimed that police continued to interrogate him after he had requested to speak with counsel, and the record was silent as to any refutation of that claim, the trial judge erred in denying defendant’s motion to suppress his incriminating statement. State v. Kachanis, 119 R.I. 439 , 379 A.2d 915, 1977 R.I. LEXIS 1947 (1977).

There is no constitutionally protected right to counsel at the moment of decision concerning the taking of the breathalyzer test. Dunn v. Petit, 120 R.I. 486 , 388 A.2d 809, 1978 R.I. LEXIS 693 (1978).

The right to counsel first arises after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information or arraignment. State v. Delahunt, 121 R.I. 565 , 401 A.2d 1261, 1979 R.I. LEXIS 1872 (1979).

Where a lineup took place shortly after the commission of the crime, well before the initiation of any formal judicial proceedings, defendant had no right to counsel. State v. Delahunt, 121 R.I. 565 , 401 A.2d 1261, 1979 R.I. LEXIS 1872 (1979).

Supreme Court will not review claims of lack of effective assistance of counsel on appeal unless they are founded upon specific trial court rulings; however, such issue may be raised in a more appropriate form of a post-conviction proceeding under §§ 10-9.1-1 — 10-9.1-9 . State v. Roderick, 121 R.I. 896 , 403 A.2d 1090, 1979 R.I. LEXIS 2037 (1979).

Even if defendant had requested to speak with his aunt or mother prior to interrogation, such requests would not have served to invoke his right to remain silent or his right to counsel. State v. Benton, 413 A.2d 104, 1980 R.I. LEXIS 1517 (R.I. 1980).

There is nothing inherent in a request for a probation officer that requires the finding that a juvenile’s request to see one necessarily constitutes an expression of the juvenile’s right to remain silent. State v. Benton, 413 A.2d 104, 1980 R.I. LEXIS 1517 (R.I. 1980).

State v. Dias, 118 R.I. 499 , 374 A.2d 1028 (1977), did not require a switch in appointed counsel where the original counsel was providing effective assistance and the defendant’s specific choice, a public defender staff attorney, would have posed conflict of interest problems under the circumstances of the case. State v. Pope, 414 A.2d 781, 1980 R.I. LEXIS 1640 (R.I. 1980), overruled in part, State v. Acquisto, 463 A.2d 122, 1983 R.I. LEXIS 1012 (R.I. 1983).

Applicant was deprived of his sixth amendment right to counsel during his trial by virtue of the court’s order that he not consult with counsel during the weekend recess. Mastracchio v. Houle, 416 A.2d 116, 1980 R.I. LEXIS 1654 (R.I. 1980).

In light of the ruling in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), it was not error for a trial court to fail to inform a defendant of a possible conflict of interests merely because his attorney was also representing his codefendants, when there was no indication a particular conflict existed. State v. Feng, 421 A.2d 1258, 1980 R.I. LEXIS 1840 (R.I. 1980).

The government was not required to accede to defendant’s request that his attorney not testify on an issue fundamental to the government’s case in order to permit the attorney to continue his representation of defendant at trial even though the evidence might have been obtainable from other, less significant witnesses. United States v. Cortellesso, 663 F.2d 361, 1981 U.S. App. LEXIS 16159 (1st Cir. 1981).

When an investigation begins to focus on the suspect and the police employ processes whose purpose is to elicit incriminating statements, the accused must be afforded his sixth amendment right to counsel. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

A defendant has no right under the federal constitution to the presence of counsel at a preindictment lineup. State v. Holland, 430 A.2d 1263, 1981 R.I. LEXIS 1173 (R.I. 1981).

When a suspect is in custody for interrogation purposes, he must be advised that he has a legal right to remain silent and that he may have an attorney present during the interrogation. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

Final argument is a vital part of the assistance of counsel guaranteed by this amendment. State v. Pemental, 434 A.2d 932, 1981 R.I. LEXIS 1266 (R.I. 1981).

Limiting defendant to one hour and five minutes for final argument did not in any way derogate from the defendant’s right to assistance of counsel and his right to due process. State v. Pemental, 434 A.2d 932, 1981 R.I. LEXIS 1266 (R.I. 1981).

Sixth amendment right to counsel does not extend to civil actions involving family disputes. Gordon v. Crouchley, 554 F. Supp. 796, 1982 U.S. Dist. LEXIS 17290 (D.R.I. 1982).

Arrest and questioning do not constitute a sufficient formalization of proceedings to trigger the requirement of counsel under this amendment. Fuentes v. Moran, 572 F. Supp. 1461, 1983 U.S. Dist. LEXIS 13405 (D.R.I. 1983), aff'd, 733 F.2d 176, 1984 U.S. App. LEXIS 22782 (1st Cir. 1984).

Search by courthouse officials of an attorney who has activated a magnetometer, the search of the attorney’s briefcase, and the prohibition against the attorney’s bringing his or her briefcase into the courthouse cell block did not constitute violations of the fourth amendment’s protection against unreasonable searches and seizures nor the effective representation of a client by counsel guaranteed by this amendment and former R.I. Const., art. 1, § 10 (see now R.I. Const., Art. 1, Sec. 10 ). Rhode Island Defense Attorneys Ass'n v. Dodd, 463 A.2d 1370, 1983 R.I. LEXIS 1045 (R.I. 1983).

In a murder investigation where police informed defendant’s lawyer that defendant was only wanted for questioning and was not a “suspect” and, after defendant’s arrest on another charge, failed to fully inform the lawyer of the investigation’s progress, the police conduct did not violate the defendant’s sixth amendment rights because there was no interference with his lawyer’s attempt to confer with his client. Fuentes v. Moran, 733 F.2d 176, 1984 U.S. App. LEXIS 22782 (1st Cir. 1984).

Defendant’s sixth amendment right to counsel was violated by the police in listening to telephone conversations between the defendant and a witness relating to the death of the victim where the witness asked questions of defendant and then pressed him for clarification of his equivocal responses, so that the role of the informant was not one of mere passive listener. State v. Mattatall, 525 A.2d 49, 1987 R.I. LEXIS 478 (R.I. 1987).

Use of a witness’ testimony concerning attempts by defendants to persuade her not to testify did not violate defendants’ sixth amendment right to counsel, since tampering with a witness, like planning to utilize perjured testimony, is not a matter in which counsel may be called upon to assist. State v. Burke, 529 A.2d 621, 1987 R.I. LEXIS 549 (R.I. 1987).

A defendant who is not accorded the right to counsel may not, consistent with the sixth amendment, be sentenced to imprisonment, for no matter how limited a period. State v. Medeiros, 535 A.2d 766, 1987 R.I. LEXIS 578 (R.I. 1987).

The constitution entitles a criminal defendant to representation at the trial and sentencing stages and through the first appeal to which he has a right. However, it does not mandate representation during subsequent proceedings. Morin v. Rhode Island, 741 F. Supp. 32, 1990 U.S. Dist. LEXIS 8683 (D.R.I. 1990).

A criminal defendant has no right to lay counsel. United States v. Lussier, 929 F.2d 25, 1991 U.S. App. LEXIS 4965 (1st Cir. 1991).

In the case of parole revocation hearings, entitlement to counsel is a determination that must be made on a case-by-case basis. Whitman v. Ventetuolo, 781 F. Supp. 95, 1991 U.S. Dist. LEXIS 18775 (D.R.I. 1991).

The question regarding a defendant’s request for a continuance to secure alternate counsel is a matter properly left to the sound discretion of the trial justice. State v. Kennedy, 586 A.2d 1089, 1991 R.I. LEXIS 31 (R.I. 1991).

The defendant voluntarily and knowingly waived his right to conflict-free representation. United States v. Saccoccia, 58 F.3d 754, 1995 U.S. App. LEXIS 15956 (1st Cir. 1995), cert. denied, 517 U.S. 1105, 116 S. Ct. 1322, 134 L. Ed. 2d 474, 1996 U.S. LEXIS 1993 (1996).

Disqualification of defendant’s counsel in the face of a potential conflict of interest was not an abuse of discretion. United States v. Lanoue, 137 F.3d 656, 1998 U.S. App. LEXIS 3902 (1st Cir. 1998).

Defendant’s Sixth Amendment right to secure counsel of his choice was not violated by the denial of a motion for a continuance, because deferring the trial for 60 days and placing its start in the midst of a holiday season would have imposed significant inconvenience on the parties and thrown the children into an unduly stressful situation, the attorney already representing defendant was intimately familiar with the case and prepared for trial, and the trial court believed the motion to be a delaying tactic by defendant. State v. Navarro, 33 A.3d 147, 2011 R.I. LEXIS 152 (R.I. 2011).

Miranda violations do not taint the admissibility of physical evidence that is the product of an unwarned and inadmissible statement, so long as that statement is voluntary. State v. Beauregard, 198 A.3d 1, 2018 R.I. LEXIS 130 (R.I. 2018).

— Conflict of Interest.

Cases in which per se conflicts of interest have been found typically involved situations where a lawyer failed to divulge a conflict implicating his own criminal conduct, and the situation where a third party with an arguable stake in the outcome of a case paid the lawyer did not necessarily result in an actual or constructive denial of the assistance of counsel. Familia-Consoro v. United States, 160 F.3d 761, 1998 U.S. App. LEXIS 29671 (1st Cir. 1998).

Where the unrebutted testimony was that the defendant’s brother, who paid the lawyer representing the defendant, never placed any restrictions on the representation to be provided, and where a defense that the brother, and not the defendant, was the guilty party, was presented, there was no showing that an improper economic motive resulted in ineffective assistance of counsel. Familia-Consoro v. United States, 160 F.3d 761, 1998 U.S. App. LEXIS 29671 (1st Cir. 1998).

Where there was no evidence that, even had his lawyer called a witness to the stand, the man would have testified, and where the district court accepted the lawyer’s explanation that he did not subpoena the witness because he believed the witness would likely have asserted the fifth amendment privilege against self-incrimination, the court did not err in finding that a non-conflict motive informed trial counsel’s refusal to subpoena the witness. Familia-Consoro v. United States, 160 F.3d 761, 1998 U.S. App. LEXIS 29671 (1st Cir. 1998).

Defendant was subject to the cause and prejudice requirement on his federal ineffective assistance of counsel claim because he had created the “conflict” of interest about which he complained by choosing to retain a particular attorney as co-counsel despite knowing all the relevant facts, and by failing to apprise the court of that conflict. Schneider v. United States, 102 F. Supp. 2d 68, 2000 U.S. Dist. LEXIS 9101 (D.R.I. 2000).

The defendant failed to make a showing that his representation was adversely affected by a conflict of interest where his lead attorney had no such conflict, and where there was no evidence either of any influence exercised by co-counsel on the lead attorney or of knowledge on the part of the lead attorney of his co-counsel’s conflict. Schneider v. United States, 102 F. Supp. 2d 68, 2000 U.S. Dist. LEXIS 9101 (D.R.I. 2000).

There is no per se conflict of interest when one public defender must argue the incompetence of another public defender from the same office which would result in the denial of a client’s right to counsel. Simpson v. State, 769 A.2d 1257, 2001 R.I. LEXIS 88 (R.I. 2001).

Defendant was not deprived of defendant’s Sixth Amendment right to counsel based on an alleged conflict, where there was no indication in the record that defendant’s attorney labored under an actual conflict of interest due to counsel’s representation of defendant’s brother in connection with the same events. State v. Pineda, 13 A.3d 623, 2011 R.I. LEXIS 22 (R.I. 2011).

Inmate was not denied the effective assistance of trial counsel due to counsel’s prior representation of a prosecution witness because (1) the inmate affirmatively waived any error after the trial court explained the potential conflict, (2) nothing showed divided loyalties motivated counsel, and (3) counsel’s approach was based on sound strategy. Chapdelaine v. State, 32 A.3d 937, 2011 R.I. LEXIS 149 (R.I. 2011).

Defendant was not denied effective assistance of counsel due to a conflict of interest when counsel simultaneously represented another individual in an unrelated criminal case whose child’s mother testified for the State in defendant’s case as the main eyewitness to the shooting, because (1) while counsel likely became aware that the witness was related to an individual facing criminal charges only through her representation of that individual, representing defendants with unrelated charges did not show divided loyalties, and (2) no effect on counsel’s representation of defendant was shown. State v. Andrade, 209 A.3d 1185, 2019 R.I. LEXIS 93 (R.I. 2019).

— Disqualification and Withdrawal.

The prosecution’s motion to disqualify the defendant’s attorney was granted where the attorney was a “necessary witness” whom the prosecution intended to call against the defendant. United States v. Gomez, 584 F. Supp. 1185, 1984 U.S. Dist. LEXIS 17505 (D.R.I. 1984).

Where defense counsel apprised the trial judge of a potential conflict of interest in representation of counsel’s client by filing a motion to withdraw prior to the impaneling of the jury, the failure of the trial judge to investigate this claim and the summary denial of defense counsel’s motion to withdraw violated the defendant’s sixth amendment right to the effective assistance of counsel. State v. Gonsalves, 476 A.2d 108, 1984 R.I. LEXIS 496 (R.I. 1984).

Trial court did not abuse its discretion in denying defendant’s motion for a continuance to secure other counsel as defendant established no exceptional circumstances to constitute good cause to discharge his lawyer just before the trial was to begin. State v. Bido, 941 A.2d 822, 2008 R.I. LEXIS 2 (R.I. 2008).

— Effectiveness.

A defendant bears the burden of proving an allegation of ineffective assistance of counsel. State v. Cochrane, 443 A.2d 1249, 1982 R.I. LEXIS 835 (R.I. 1982).

In determining whether a defendant has been denied his right to counsel, the standard to be used is that of reasonably effective assistance of counsel. State v. Cochrane, 443 A.2d 1249, 1982 R.I. LEXIS 835 (R.I. 1982).

Effective assistance of counsel means conscientious, meaningful representation wherein the accused is advised of his rights, and honest, learned and able counsel is given a reasonable opportunity to perform the task assigned to him. Angell v. State, 454 A.2d 709, 1983 R.I. LEXIS 786 (R.I. 1983).

If a defendant can show that certain evidence would not have been admitted but for counsel’s incompetence and that the evidence actually influenced the defendant’s decision to accept a guilty plea agreement, the defendant must be allowed to withdraw the plea because counsel’s incompetence rendered the plea an unknowing and unintelligent act. Dufresne v. Moran, 729 F.2d 18, 1984 U.S. App. LEXIS 24935 (1st Cir. 1984).

The harmless-constitutional-error doctrine may be applied to deprivations of efficacious assistance, in cases where: (1) the violation does not run to a matter so basic as to trench inexorably, by its very nature, upon the elementary rights of the accused to a fair trial; (2) the infraction is not the result of conduct fairly attributable to the government (i.e., the prosecution or the court); and (3) the determination of the quantum and effect of disadvantagement can be made objectively, without “unguided speculation.” Sparfven v. United States, 577 F. Supp. 1430, 1984 U.S. Dist. LEXIS 20592 (D.R.I. 1984).

Defendant was not deprived of effective assistance of counsel at trial where the evidence against the defendant was overwhelming and defense counsel did all he reasonably and effectively could do to present the defense. State v. D'Alo, 477 A.2d 89, 1984 R.I. LEXIS 537 (R.I. 1984).

The Rhode Island Supreme Court will refuse to consider claims of ineffective counsel on direct appeal unless the claims are grounded upon specific trial-court rulings. State v. Farlett, 490 A.2d 52, 1985 R.I. LEXIS 470 (R.I. 1985).

A defendant is not prejudiced by trial counsel’s failure to object with specificity to a first-degree murder jury instruction, even though a second-degree murder instruction is not warranted, where there is no reasonable probability on the evidence presented that the jury will find him guilty of second-degree murder. Tarvis v. Moran, 551 A.2d 699, 1988 R.I. LEXIS 154 (R.I. 1988).

To determine whether counsel’s assistance was so defective as to warrant reversal, a convicted defendant must prove that counsel’s performance was deficient and that the deficient performance prejudiced the defense so seriously that it deprived the defendant of a fair trial. Clark v. Ellerthorpe, 552 A.2d 1186, 1989 R.I. LEXIS 12 (R.I. 1989).

“Effective” assistance of counsel does not mean successful. It means conscientious, meaningful representation wherein the accused is advised of his rights and honest, learned and able counsel is given a reasonable opportunity to perform the task assigned to him. Clark v. Ellerthorpe, 552 A.2d 1186, 1989 R.I. LEXIS 12 (R.I. 1989).

The sixth amendment’s guarantee of effective assistance of counsel does not extend to habeas corpus proceedings. Morin v. Rhode Island, 741 F. Supp. 32, 1990 U.S. Dist. LEXIS 8683 (D.R.I. 1990).

Counsel’s failure to raise and press the fourteenth amendment implications of a benzidine test did not constitute ineffective assistance because the trial was held before the use of benzidine was held to violate due process. Clark v. Moran, 749 F. Supp. 1186, 1990 U.S. Dist. LEXIS 14300 (D.R.I. 1990), aff'd, 942 F.2d 24, 1991 U.S. App. LEXIS 18102 (1st Cir. 1991).

The standard for acceptable performance is whether counsel’s conduct constituted reasonably effective assistance. Clark v. Moran, 942 F.2d 24, 1991 U.S. App. LEXIS 18102 (1st Cir. 1991).

The constitution requires that the defendant be afforded the assistance of competent court-appointed counsel at sentencing. United States v. Mateo, 950 F.2d 44, 1991 U.S. App. LEXIS 28141 (1st Cir. 1991).

A prisoner fell far short of demonstrating that his counsel’s representation at a hearing regarding alleged violations of deferred sentencing agreements fell below an objective standard of reasonableness. Whitman v. Ventetuolo, 781 F. Supp. 95, 1991 U.S. Dist. LEXIS 18775 (D.R.I. 1991).

In any case presenting a claim for the ineffective assistance of counsel, the inquiry regarding counsel’s performance must be whether counsel’s assistance was reasonable considering all of the circumstances. Crombe v. State, 607 A.2d 877, 1992 R.I. LEXIS 92 (R.I. 1992).

Counsel’s failure to produce firearms expert after stating in opening statement that one would be forthcoming did not constitute ineffective assistance of counsel where he subsequently discovered that the expert was easily impeachable and counsel succeeded by dint of skillful cross-examination of the prosecution’s firearms expert, in eliciting much of the same opinion evidence that he hoped to establish through his own expert. United States v. McGill, 11 F.3d 223, 1993 U.S. App. LEXIS 30527 (1st Cir. 1993).

The failure to anticipate a change in the existing law does not constitute ineffective assistance of counsel. State v. Brennan, 627 A.2d 842, 1993 R.I. LEXIS 186 (R.I. 1993).

The counsel’s failure to raise meritless issues cannot constitute ineffective assistance of counsel. Gordon v. Vose, 879 F. Supp. 179, 1994 U.S. Dist. LEXIS 19929 (D.R.I. 1994).

The defendant failed to establish that the attorney was ineffective based upon the decision to call only one character witness out of a list of 25 individuals submitted by the defendant at trial. The decision to call only one witness was a wise tactical decision based upon the attorney’s extensive experience as a trial attorney and was made with the defendant’s tacit approval. Jacques v. State, 669 A.2d 1124, 1995 R.I. LEXIS 292 (R.I. 1995), cert. denied, 517 U.S. 1212, 116 S. Ct. 1833, 134 L. Ed. 2d 937, 1996 U.S. LEXIS 3335 (1996).

Counsel performed adequately. See McKenna v. State, 671 A.2d 804, 1996 R.I. LEXIS 60 (R.I. 1996).

Where a trial court rejected defense counsel’s argument that the defendant did not have the degree of control and authority over a drug dealing enterprise necessary to enhance his sentence, finding the fact that the defendant had negotiated a cocaine sale while in detention particularly significant, and where counsel’s failure to argue sentencing manipulation had no effect on the defendant’s offense level as a career offender, there was no ineffective assistance of counsel. Person v. United States, 27 F. Supp. 2d 317, 1998 U.S. Dist. LEXIS 17951 (D.R.I. 1998).

A claim of ineffective assistance of counsel failed where the decision not to call an expert witness was a strategic decision made after careful consideration. Powers v. State, 734 A.2d 508, 1999 R.I. LEXIS 160 (R.I. 1999).

It was not ineffective assistance of counsel where counsel decided not to retain an additional ballistic evidence expert, but to embark upon a different defense strategy by pointing the finger of guilt elsewhere, since the defendant was not thereby deprived of a trial that could be relied upon as having produced a just result. Powers v. State, 734 A.2d 508, 1999 R.I. LEXIS 160 (R.I. 1999).

Defendant’s ineffective assistance of counsel claim was not entertained by the appellate court where his appeal raised three non-record-based contentions, since a claim of incompetent counsel on direct appeal must be based on a sufficiently developed evidentiary record. United States v. Woods, 210 F.3d 70, 2000 U.S. App. LEXIS 7368 (1st Cir. 2000).

Defendant’s ineffective assistance of counsel claim failed since his substantive argument that he was subjected to a de facto arrest without probable cause would not have succeeded, given the evidence and his failure to challenge the factual findings at trial, and since, even if the defendant had not consented to a search, the police officer would have been entitled to detain the defendant due to his evasive and inconsistent answers to questions and his nervous response. United States v. Cabrera, 2000 U.S. App. LEXIS 2501 (1st Cir. Feb. 18, 2000), cert. denied, 531 U.S. 912, 121 S. Ct. 264, 148 L. Ed. 2d 192, 2000 U.S. LEXIS 6439 (2000).

Since counsel’s contested motion to sever was a sound, strategic gambit under the circumstances, and since he filed several pretrial motions on defendant’s behalf and appeared to have adequately cross-examined the prosecution’s witnesses at trial, counsel was not ineffective. State v. Brouillard, 745 A.2d 759, 2000 R.I. LEXIS 26 (R.I. 2000).

Defendant was entitled to a new trial since defense counsel’s representation was so wanting in all respects as to amount to a complete absence of a defense; the defense counsel neglected to move for a judgment of acquittal on the offense of burglary in spite of the fact that the record was devoid of any evidence that the defendant entered a dwelling with the specific intent to commit a felony therein, and she failed to request discovery from the prosecution, to submit a request to charge any lesser-included offenses, to present any defense based upon the defendant’s intoxication, and to file a motion for a new trial prior to the expiration of the appropriate limitation period. Heath v. Vose, 747 A.2d 475, 2000 R.I. LEXIS 72 (R.I. 2000), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

The defendant was not prejudiced by the failure of defense counsel to call the victim’s pediatrician as a witness since the prosecution introduced substantial evidence of the defendant’s guilt and equivocal testimony from the doctor would not have been enough to change the outcome of the case. Toole v. State, 748 A.2d 806, 2000 R.I. LEXIS 51 (R.I. 2000).

Even if defense counsel’s failure to object to certain points during the trial had not reflected legitimate defense strategy, any error in raising those objections was harmless in light of the substantial other evidence inculpating the defendant. Toole v. State, 748 A.2d 806, 2000 R.I. LEXIS 51 (R.I. 2000).

Defendant’s failure to testify did not support a claim of ineffective assistance of counsel where the hearing justice found as a fact, based on the conflicting evidence presented at the postconviction hearing, that the defendant was fully aware of his right to testify on his own behalf and that his decision not to testify was a voluntary one, made without any improper influence from counsel. Brennan v. Vose, 764 A.2d 168, 2001 R.I. LEXIS 7 (R.I. 2001).

The appellate court would not second-guess defense counsel’s decision not to strike a particular juror since that decision was a reasoned, tactical determination, and since the defendant was consulted prior to the announcement by counsel that the defense was satisfied with the jury panel. Brennan v. Vose, 764 A.2d 168, 2001 R.I. LEXIS 7 (R.I. 2001).

Counsel appointed approximately three weeks prior to the commencement of trial adequately prepared his case and zealously defended his client since he participated in extensive pretrial arguments and relentlessly cross-examined the witnesses proffered by the state. Brennan v. Vose, 764 A.2d 168, 2001 R.I. LEXIS 7 (R.I. 2001).

Counsel for a defendant who accepted a plea agreement acted well within the level of competence demanded since he had raised the potential defense of diminished capacity during six meetings with his client, he had hired an expert who was prepared to testify in support of that defense, and there was written evidence of counsel’s intent to present the defense. Miguel v. State, 774 A.2d 19, 2001 R.I. LEXIS 155 (R.I. 2001).

Post-conviction relief was denied to a defendant convicted of murder and related crimes where his allegation that his counsel failed to consult him with regard to a jury instruction was found meritless. Doctor v. State, 865 A.2d 1064, 2005 R.I. LEXIS 19 (R.I. 2005).

Because defendant failed to provide transcripts or affidavits to support his pro se assertions of ineffective assistance of trial and appellate counsel in his murder case, he failed to meet his burden of proof in a post-conviction relief proceeding. Bustamante v. Wall, 866 A.2d 516, 2005 R.I. LEXIS 29 (R.I. 2005).

With respect to defendant’s argument that his trial attorney failed to maintain his innocence by remarking that he “played a very minor role at most” in the crime and that he was “not as culpable as the other players in the case,” the court found that defendant failed to submit any transcript excerpts or citations supporting his argument. Without any evidence to support his allegations, the court was unable to determine exactly what trial counsel said, in what context the alleged statements were made, and whether the statements were against defendant’s wishes; consequently, he failed to sustain his burden of showing ineffective assistance of counsel. Bustamante v. Wall, 866 A.2d 516, 2005 R.I. LEXIS 29 (R.I. 2005).

Defendant’s allegations of ineffective assistance of counsel relating to his trial attorney’s failure to call character witnesses or to introduce an allegedly exculpatory biker jacket amounted to tactical decisions, and tactical decisions, even if ill-advised, do not by themselves constitute ineffective assistance of counsel. Bustamante v. Wall, 866 A.2d 516, 2005 R.I. LEXIS 29 (R.I. 2005).

In a prosecution for possession of marijuana with intent to deliver, defendant’s counsel was not ineffective for not discovering that a toxicology report was erroneous; but, even if counsel were, defendant was not prejudiced, since a factual basis existed for defendant’s nolo contendere plea even in the absence of the report. Moniz v. State, 933 A.2d 691, 2007 R.I. LEXIS 100 (R.I. 2007).

Defendant did not show that he received ineffective assistance of counsel at trial and, thus, defendant was not entitled to relief on his postconviction application in case involving drug offenses that claimed that his Sixth Amendment rights had been violated. Trial counsel’s decision not to call a man who executed an affidavit that purportedly exculpated defendant, or at least present the man’s prior testimony, appeared to be a sound tactical decision given the man’s poor credibility and prior criminal history. Rodriguez v. State, 941 A.2d 158, 2008 R.I. LEXIS 9 (R.I. 2008).

Applicant’s petition for postconviction relief was properly denied because the applicant failed to sustain his burden of proving that his attorney, who was a seasoned and respected trial lawyer, did not provide an adequate defense and failed to undertake reasonable efforts on the applicant’s behalf. Azevedo v. State, 945 A.2d 335, 2008 R.I. LEXIS 49 (R.I. 2008).

Because at the time of the appeal from the judgment of conviction it was reasonable for defendant’s counsel to conclude that the trial justice’s decision to close the courtroom for a child witness’ testimony was not a strong issue for appeal, and since defendant’s counsel made a considered tactical decision not to object to the amended indictment, there was no ineffective counsel requiring postconviction relief. Chalk v. State, 949 A.2d 395, 2008 R.I. LEXIS 76 (R.I. 2008), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

When analyzing counsel’s performance under the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), defendant did not meet his burden of proving that counsel’s performance was deficient. Therefore, in a R.I. Gen. Laws § 10-9.1-1(a)(1) motion for postconviction relief, there was no need to address whether counsel’s representation was deficient in the context of U.S. Const. amend. VI and R.I. Const. art. 1, § 10 . Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

There was nothing in the record that allowed a court to conclude that counsel’s failure to compel production of a pastor’s notes prejudiced a postconviction relief applicant in any way; the notes never were produced, even at the postconviction-relief proceeding, and the hearing justice’s supposition that the notes may have been critical material was insufficient to demonstrate the necessary prejudice to the applicant that was needed to meet Strickland’s second prong. The hearing justice erred when she speculated about the importance and assumed impact of the pastor’s notes. Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Given that a court on direct appeal found a claim that a pastor bolstered the victim’s testimony to be without merit, counsel’s failure to specify that his objection was based on impermissible bolstering was not ineffective assistance because no prejudice could have resulted from such an omission. Because the determination that a pastor’s testimony was permissible was based on the content of her testimony and not on who she was, her appearance on the local television news would have had no impact on the decision on direct appeal. Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Applicant for postconviction relief failed to meet his burden of proving by a preponderance of the evidence that his application should have been granted; he never presented any evidence concerning his counsel’s failure to object to a pastor’s testimony as to the pastor’s status as an expert witness—the pastor had testified as to his counseling sessions with the applicant and that the pastor had dealt with a lot of sex offenders. Furthermore, even if the applicant had presented some evidence on this issue and as a result that court were to have concluded that counsel was deficient in this regard, there was no evidence that the applicant was prejudiced by this deficiency because there was other compelling evidence of the applicant’s guilt beyond a reasonable doubt. Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Even if a reviewing court agreed with a postconviction hearing justice’s declaration that it was unthinkable to elicit testimony from an applicant’s daughter that she did not believe that the victim told her that the applicant molested the victim and that the daughter did not believe the victim, such a decision did not justify a finding of ineffective assistance of counsel. The claim lacked merit because eliciting the testimony was trial strategy; counsel attempted to cast doubt on the victim’s credibility by offering the daughter’s testimony. Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Hearing justice erred in finding that counsel was deficient for failing to review copies of discovery motions or police reports prior to trial. Both the postconviction applicant and counsel testified that counsel reviewed the discovery materials with the applicant. Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Defendant was not denied the effective assistance of counsel under U.S. Const. amend. VI by counsel’s recommendation that he enter pleas of nolo contendere since the record showed that applicant’s attorney had reviewed the facts of the case and that, based on his twenty years of experience defending criminal cases, made the reasoned decision to suggest that defendant enter the nolo contendere pleas rather than go to trial and risk consecutive life sentences. Pelletier v. State, 966 A.2d 1237, 2009 R.I. LEXIS 29 (R.I. 2009).

Trial court properly denied defendant’s post-conviction petition as defendant had failed to overcome the strong presumption that his counsel’s performance was reasonably professional, in that counsel testified that he first learned of the traffic stop, which would provide an alibi for defendant in his murder case, just before trial, two years into his representation of defendant, and that, because no detail surrounding the stop were provided and because defendant had waited so long to provide him with this information, counsel refrained from pursuing an investigation and from seeking a continuance. The ever-shifting nature of defendant’s story served to confirm the hearing justice’s conclusion that the information about the traffic stop was withheld and disclosed only when defendant thought he could safely do so and discredited the testimony of defendant and his wife that they discussed the stop with the attorney in the early stages of his representation. Hazard v. State, 968 A.2d 886, 2009 R.I. LEXIS 39 (R.I. 2009).

Defense counsel did not provide ineffective assistance of counsel for failing to adequately investigate a petitioner’s case, failing to obtain and review discovery documents, and failing to view a videotape of the drug deal as: (1) counsel was sufficiently familiar with the case and was cognizant of the credibility of the state’s witnesses; (2) the petitioner desired that this ordeal conclude quickly, and the plea bargain struck by counsel made the petitioner eligible for parole quickly; (3) counsel was aware of the strength of the state’s evidence and the undercover police officer’s reputation for integrity; (4) the petitioner’s arrest was just one of many arrests stemming from a large undercover operation that was handled by counsel’s office; and (5) the petitioner did not point to anything but a lost videotape that was not provided to counsel. Rodrigues v. State, 985 A.2d 311, 2009 R.I. LEXIS 149 (R.I. 2009).

Failure of counsel to inform a petitioner that a guilty plea could result in deportation did not violate the amendment to R.I. Gen. Laws § 12-12-22 as: (1) the amendment was effective more than six years after the petitioner’s plea, and it was not retroactive; (2) under the previous law, the petitioner did not have to be advised of the possibility of deportation; and (3) the petitioner admitted that the petitioner read and understood the Spanish language version of the plea form, which clearly warned the petitioner about the possible immigration consequences of a plea. Rodrigues v. State, 985 A.2d 311, 2009 R.I. LEXIS 149 (R.I. 2009).

Trial counsel did not render ineffective assistance for refusing to allow the inmate to testify, as counsel zealously represented the inmate when he counseled the inmate against taking the stand. Washington v. State, 989 A.2d 94, 2010 R.I. LEXIS 30 (R.I. 2010).

Trial counsel did not render ineffective assistance when counsel promised the jury during opening statements that the inmate would testify, when the inmate did not testify; there was no prejudice, as the inmate’s remorse and state of mind, the issues which counsel stated the inmate would testify to, were presented to the jury through other means that did not expose the inmate to a cross-examination that likely would have been damaging to the defense. Washington v. State, 989 A.2d 94, 2010 R.I. LEXIS 30 (R.I. 2010).

Trial counsel did not render ineffective assistance by failing to present a diminished capacity defense, because it would have been objectively unreasonable for counsel to present such a defense when diminished capacity was not an available defense to felony murder, a general intent crime. Washington v. State, 989 A.2d 94, 2010 R.I. LEXIS 30 (R.I. 2010).

Post-conviction relief (PCR) applicant’s claim of ineffective assistance of counsel failed as the PCR application did not show that the applicant was prejudiced by any asserted deficiency as there was overwhelming evidence that the applicant was guilty of first-degree murder. Otero v. State, 996 A.2d 667, 2010 R.I. LEXIS 94 (R.I. 2010).

As various weapons offenses were dismissed upon petitioner inmate’s entry of a plea, such that the sentence of imprisonment actually imposed on him was much less than he could have faced if he went to trial and was convicted as charged, he failed to show prejudice for purposes of his claim of ineffective assistance of counsel, in violation of U.S. Const. amend. VI. Neufville v. State, 13 A.3d 607, 2011 R.I. LEXIS 13 (R.I. 2011).

As there was sufficient evidence on the record that petitioner inmate was informed by his counsel and by the trial court about the possibility of deportation pursuant to R.I. Gen. Laws § 12-12-22 , the inmate’s claim in his postconviction relief application of ineffective assistance of counsel, in violation of U.S. Const. amend. VI, lacked merit. Neufville v. State, 13 A.3d 607, 2011 R.I. LEXIS 13 (R.I. 2011).

In petitioner inmate’s postconviction relief application pursuant to R.I. Gen. Laws § 10-9.1-1(a)(1) , where trial counsel’s testimony was deemed more credible than that of the inmate, the claim that counsel failed to investigate, file pretrial motions, or prepare for trial lacked merit; the evidence supported counsel’s claim that he was not provided with the names of any witnesses to investigate, such that there was no ineffectiveness of counsel shown in violation of U.S. Const. amend. VI. Neufville v. State, 13 A.3d 607, 2011 R.I. LEXIS 13 (R.I. 2011).

Inmate was not denied the effective assistance of trial counsel due to counsel’s failure to provide the inmate with more advice about a plea offer because the inmate (1) did not show there was little hope of an acquittal, given limits on damaging evidence obtained by counsel, (2) consistently maintained the inmate’s innocence, and (3) did not show more advice would have caused a different result. Chapdelaine v. State, 32 A.3d 937, 2011 R.I. LEXIS 149 (R.I. 2011).

Inmate was not denied the effective assistance of trial counsel when counsel stipulated not to introduce any evidence of any witness’s alcohol or drug consumption because (1) any attempt to impeach the victim’s mother with such evidence would have been inadmissible, and (2) the strategy was professionally reasonable. Chapdelaine v. State, 32 A.3d 937, 2011 R.I. LEXIS 149 (R.I. 2011).

Inmate was not denied the effective assistance of trial counsel due to counsel’s failure to introduce expert testimony because (1) the prosecution presented no such testimony to rebut, and (2) no evidence of the victim’s abnormal behavior was proffered, so an expert would have improperly tried to attack the victim’s credibility. Chapdelaine v. State, 32 A.3d 937, 2011 R.I. LEXIS 149 (R.I. 2011).

Claim of ineffective assistance of counsel failed, because the testimony of trial counsel at evidentiary hearing indicated that his decisions were indeed tactical and not unreasonable in light of the circumstances; among other things, counsel had a sound basis for the decision not to use a physician’s opinion, namely that the physician essentially agreed with the State’s witness and trial counsel’s use of a nurse practitioner and the Department of Children, Youth, and Families worker as defense witnesses to shed light on prior inconsistent out-of-court statements by the victim did not rise to the level of ineffective assistance, notwithstanding the resulting corroborative testimony from both witnesses achieved by the State on cross-examination. Rice v. State, 38 A.3d 9, 2012 R.I. LEXIS 22 (R.I. 2012).

Superior court did not err in denying an applicant’s petition for postconviction relief because the applicant did not receive ineffective assistance of counsel due to trial counsel’s failure to elicit evidence suggesting that the police later found the gun used as the murder weapon in the hands of another criminal; there was no evidence of any misconduct by the State for trial counsel to “uncover,” and trial counsel’s failure to present evidence of the whereabouts of the gun months after the crime did not prejudice the applicant because there was no reasonable probability that the jury would have returned with a different verdict. Spratt v. State, 41 A.3d 984, 2012 R.I. LEXIS 45 (R.I. 2012).

Superior court did not err in denying an applicant’s petition for postconviction relief because the applicant did not receive ineffective assistance of counsel due to trial counsel’s failure to uncover the State’s alleged misconduct with respect to a witness’s testimony; no R.I. Super. Ct. R. Crim. P. 16 or Brady violation occurred in regard to arrest photographs, and the hearing justice repeatedly made note of trial counsel’s effectiveness. Spratt v. State, 41 A.3d 984, 2012 R.I. LEXIS 45 (R.I. 2012).

Applicant’s claim of ineffective assistance of counsel failed because assuming arguendo that the prosecutor improperly vouched for an accomplice’s truthfulness during closing argument by referring to his promise in his plea agreement to testify truthfully, the applicant did not establish that his counsel’s failure to object or to request a cautionary instruction was objectively unreasonable or that the applicant was prejudiced by the prosecutor’s single reference to the plea bargain. Jaiman v. State, 55 A.3d 224, 2012 R.I. LEXIS 137 (R.I. 2012).

Defense counsel was not ineffective for failing to move to dismiss an indictment on speedy trial grounds; as much of the 14-year delay between the applicant’s arrest and his extradition to Rhode Island was attributable to his flight from the state and his attempts to fight extradition, such a motion would have been denied. Bido v. State, 56 A.3d 104, 2012 R.I. LEXIS 152 (R.I. 2012).

Defendant’s application for postconviction relief was properly denied because defendant’s attorneys were not ineffective on the ground that they represented defendant while laboring under a conflict of interest; their prior representation of an acquaintance who was with defendant on the night of the murder had concluded long before defendant’s trial, in excess of a year. Rivera v. State, 58 A.3d 171, 2013 R.I. LEXIS 8 (R.I. 2013).

While trial counsel’s conduct in disclosing the inmate’s psychiatric records to the prosecutor fell below an objective standard of reasonableness, trial counsel’s deficient performance was not so deficient as to have prejudiced the inmate and deprived him of a fair trial. Even if the challenged testimony had been excluded, there was an abundance of other compelling evidence, including the testimony of the victim, of the inmate’s guilt that was sufficient for the jury to convict him beyond a reasonable doubt. Hazard v. State, 64 A.3d 749, 2013 R.I. LEXIS 70 (R.I. 2013).

Denial of postconviction relief was proper, as trial counsel’s attack on the victim’s credibility by alleging racial animosity was a reasonable tactical decision and trial counsel’s failure to object to the prosecutor’s references to the inmate as a “liar” did constitute deficient performance prejudicial to the inmate, as the inmate put his character and credibility at issue by taking the stand and there were several instances where the inmate’s testimony had been refuted or contradicted. Hazard v. State, 64 A.3d 749, 2013 R.I. LEXIS 70 (R.I. 2013).

Where applicant claimed that his counsel’s understatement of the risks involved in going to trial prevented him from entering into a plea agreement, he failed to establish deficient performance because counsel was not required to predict the future, and sufficiently informed applicant of his options and then abided by his choice to go to trial. Bell v. State, 71 A.3d 458, 2013 R.I. LEXIS 101 (R.I. 2013).

Applicant who claimed his counsel’s understatement of the risks involved in going to trial prevented him from entering into a plea agreement did not show prejudice from counsel’s alleged deficiency, because he did not show that any plea offer was forthcoming, much less that he would have accepted it, given his stated desire to avoid a felony conviction in order to join the military. Bell v. State, 71 A.3d 458, 2013 R.I. LEXIS 101 (R.I. 2013).

Postconviction relief applicant’s trial counsel was not ineffective for not performing an investigation to discover that a trial justice had previously represented the applicant because the Sixth Amendment imposed no such requirement. Perry v. State, 132 A.3d 661, 2016 R.I. LEXIS 25 (R.I. 2016).

Farce-and-mockery standard for ineffective assistance of counsel claims has no place in assessing such claims after Strickland because (1) the standard has been rejected in favor of a standard requiring reasonably competent or effective assistance, (2) nothing in Strickland purports to revive the standard, and (3) the standard is rooted in the due process clause of U.S. Const. amend. V, while claims of ineffective assistance of counsel are grounded in the guarantee of the assistance of counsel contained in U.S. Const. amend. VI and R.I. Const. Decl. Rights art. 1, § 10 , so, henceforth, claims of ineffective assistance of counsel—whether the attorney is privately retained or court-appointed—shall continue to be decided by reference to the familiar performance and prejudice prongs of the Strickland standard. Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Applicant for postconviction relief argued that the prosecutor’s reference to an admission in an opening statement and subsequent failure to introduce it into evidence amounted to incurable prejudice, but there was no prejudice because the evidence of applicant’s complicity was overwhelming, and the trial justice instructed the jury on numerous occasions that the arguments of counsel were not evidence; applicant did not show ineffective assistance of counsel entitling him to postconviction relief. Chum v. State, 160 A.3d 295, 2017 R.I. LEXIS 65 (R.I. 2017).

Affording the requisite deference to the hearing justice’s findings, trial counsel’s representation of petitioner was not constitutionally deficient. While petitioner claimed counsel failed to give him an alleged handwritten statement by petitioner, the hearing justice determined that such a statement did not exist, and while petitioner claimed counsel failed to give him documents relating to his case, petitioner did not meet his burden by simply stating this alleged error; also, counsel did not fail to prepare petitioner to testify. Jimenez v. State, 197 A.3d 852, 2018 R.I. LEXIS 127 (R.I. 2018).

Appellate counsel could not have properly raised ineffective assistance of trial counsel on direct appeal, and thus petitioner was not entitled to postconviction relief on this basis. Jimenez v. State, 197 A.3d 852, 2018 R.I. LEXIS 127 (R.I. 2018).

— Evidentiary Hearing.

The trial judge at the defendant’s hearing for post-conviction relief erred in ruling that the defendant had failed to meet the standard set forth in Strickland v. Washington, 465 U.S. 668 (1984), for claims of ineffective assistance of counsel without providing an evidentiary hearing to buttress his conclusion. Hughes v. State, 609 A.2d 943, 1992 R.I. LEXIS 131 (R.I. 1992).

Where there was nothing in the record indicating that the defendant had waived his right to appeal, but rather his 28 U.S.C. § 2255 petition asserted that he instructed his counsel to appeal and believed that his instruction had been followed, whether the defendant still had such a right depended on whether he waived it or whether his failure to appeal was attributable to counsel’s neglect, a determination which required an evidentiary hearing. United States v. Alzate, 833 F. Supp. 90, 1993 U.S. Dist. LEXIS 14545 (D.R.I. 1993), aff'd, 70 F.3d 199, 1995 U.S. App. LEXIS 33250 (1st Cir. 1995).

— Final Argument.

A forty-minute time limitation on final argument suggested by the trial justice at a chambers conference, and her ultimate allowance of a forty-nine-minute argument, did not constitute such prejudice to the defendant as to amount to reversible error. State v. Ellis, 619 A.2d 418, 1993 R.I. LEXIS 15 (R.I. 1993).

— Interrogations.

The defendant was not denied his Sixth Amendment right to post-indictment representation of counsel when a witness was permitted to testify that the defendant approached her and offered money for her not to testify, and the witness, who was then wearing a sound transmitter monitored and supplied by the police, was not conducting an unconstitutional interrogation; the “incriminating” evidence sprang from the defendant’s own wrongful initiative. Burke v. Vose, 847 F. Supp. 256, 1993 U.S. Dist. LEXIS 20144 (D.R.I. 1993).

— Pro Se Representation.

While the sixth amendment grants individuals the right to conduct their own defense, it does not entitle a defendant to representation by both appointed counsel and pro se. A criminal defendant cannot claim his right to counsel and assert the right to represent himself in the same trial. State v. Brown, 549 A.2d 1373, 1988 R.I. LEXIS 132 (R.I. 1988).

The Sixth and Fourteenth Amendments set forth a framework in which a criminal defendant has a right to act as his or her own attorney. State v. Taylor, 562 A.2d 445, 1989 R.I. LEXIS 143 (R.I. 1989).

Section 11-37-13.2 , which provides alternative methods for taking the testimony of a child victim of sexual assault, does not violate a defendant’s right of self-representation, as he or she is able to undertake self-representation, albeit in a slightly modified form. State v. Taylor, 562 A.2d 445, 1989 R.I. LEXIS 143 (R.I. 1989).

The trial justice erred in not allowing defendant to proceed pro se, where defendant acknowledged that he was ill-equipped to defend himself but nevertheless maintained his desire to proceed pro se. State v. Kennedy, 586 A.2d 1089, 1991 R.I. LEXIS 31 (R.I. 1991).

The trial justice erred in denying the defendant’s request to defend himself, where the defendant had expressed his dissatisfaction with court-appointed counsel and requested that he be allowed to proceed pro se. State v. Costa, 604 A.2d 329, 1992 R.I. LEXIS 52 (R.I. 1992).

The trial justice committed reversible error in not allowing the defendant to serve as co-counsel and in making comments that categorically silenced further inquiry by defendant, rendering futile any future attempt by him to request self-representation. State v. Gatone, 698 A.2d 230, 1997 R.I. LEXIS 246 (R.I. 1997).

Trial court’s Chabot inquiry prior to accepting defendant’s waiver of the Sixth Amendment right to counsel was inadequate, as the trial court knew that defendant had been a patient at a mental health clinic and was receiving disability benefits due to mental health problems, and yet the trial court failed to inquire as to, inter alia, whether defendant was still receiving mental health counseling, whether defendant was taking any medications for mental disability, or whether defendant’s mental disability was severe enough to affect defendant’s self representation. State v. Holdsworth, 798 A.2d 917, 2002 R.I. LEXIS 126 (R.I. 2002).

Defendant’s repeated refusal to accept the services of competent court-appointed defense counsel demonstrated clearly the voluntary waiver of his right to counsel, and that he was not in any way unconstitutionally “forced” to proceed pro se. State v. Thornton, 800 A.2d 1016, 2002 R.I. LEXIS 171 (R.I. 2002).

Defendant clearly waived his right to counsel under both U.S. Const. amend. VI and R.I. Const. art. 1, § 10 where he rejected eight court appointed attorneys before deciding to proceed pro se with stand by counsel in his criminal trial. The trial court’s rejection of his request during trial to seek private counsel was not an inhibition of his right to counsel. State v. Gordon, 880 A.2d 825, 2005 R.I. LEXIS 173 (R.I. 2005).

Defendant’s right to counsel was not violated when the trial court allowed her to represent herself at trial because the record established her voluntary, knowing, and intelligent waiver of her right to counsel. The lengthy colloquies between the trial court and defendant showed that her decision to waive counsel was a product of her own free will, the trial court made defendant aware of the dangers and disadvantages of self-representation, and the record was devoid of any concern raised in the colloquy as to her mental competency. State v. Cruz, 109 A.3d 381, 2015 R.I. LEXIS 19 (R.I. 2015).

It was no error to deny defendant’s right to proceed pro se because defendant did not meet the voluntarily, knowingly, and intelligently test, as (1) defendant was voluntarily absent from trial for one and one-half days after the jury was sworn, missing key testimony, (2) defendant did not understand the jury selection process, (3) the midtrial timing of defendant’s request, while not dispositive, showed defendant’s waiver was not knowing or intelligent, and (4) defendant’s stated wish to abandon the trial and “go back to her cell” showed a lack of understanding that defendant would still have to appear for the rest of the trial if defendant fired counsel. State v. Withers, 172 A.3d 765, 2017 R.I. LEXIS 112 (R.I. 2017).

— Request.

The trial justice must determine whether the police should have understood the individual in custody to be making an unequivocal request for an attorney. The focus of the trial justice’s inquiry is upon the objective comprehension of the police at the time of the supposed request. State v. Ducharme, 601 A.2d 937, 1991 R.I. LEXIS 177 (R.I. 1991).

— Use of Defendant’s Statements.

Evidence of the defendant’s statements, obtained in violation of his sixth amendment right to counsel, was admissible for impeachment purposes, where exclusion of the statements from the state’s case in chief had sufficiently served to vindicate the defendant’s sixth amendment rights. State v. Mattatall, 603 A.2d 1098, 1992 R.I. LEXIS 32 (R.I. 1991), cert. denied, 506 U.S. 838, 113 S. Ct. 117, 121 L. Ed. 2d 74, 1992 U.S. LEXIS 5879 (1992).

Defendant’s U.S. Const. amend. VI right to counsel was violated by the child protective investigator’s jailhouse interview regarding the charge against defendant of child molestation and the trial court’s subsequent admission into evidence of the statement obtained. The questioning of defendant occurred at a critical stage of the prosecution and the investigator was acting as an agent of the State because the investigator was required by R.I. Gen. Laws § 40-11-7(f) to forward any abuse information she obtained to the appropriate law enforcement agency, which the State could then use to prosecute defendant. State v. Oliveira, 961 A.2d 299, 2008 R.I. LEXIS 115 (R.I. 2008).

Defendant’s motion to suppress statements he made to a Massachusetts Department of Children and Families (DCF) investigator on grounds that his statements were involuntary and that his right to due process was violated was improperly granted because the investigator’s interview at defendant’s kitchen table was the antithesis of a coercive interrogation; there was no DCF policy requiring the investigator to give defendant the DCF brochure informing him of his right to counsel at the beginning of the interview, and it was not unconstitutional for the investigator to have waited until the end of the interview to give defendant the brochure; and defendant’s rights to counsel had not attached as he was not in custody and had not been charged with a crime. State v. Gouin, 182 A.3d 28, 2018 R.I. LEXIS 36 (R.I. 2018).

Defendant’s statement to police allegedly made without counsel’s effective assistance was admissible because (1) defendant’s right to counsel had not attached when the statement was made, because the custodial interrogation occurred before formal charges had been filed against defendant, and (2) suppression would not effectuate the purpose of the exclusionary rule identified by the trial justice. State v. Andrade, 209 A.3d 1185, 2019 R.I. LEXIS 93 (R.I. 2019).

District of Trial.

This amendment added a further guaranty that the district should have been previously ascertained by law, leaving the trial of offenses not committed within any state to be controlled by Art. 3, § 2 of the Constitution. Cook v. United States, 138 U.S. 157, 11 S. Ct. 268, 34 L. Ed. 906, 1891 U.S. LEXIS 2074 (1891).

In order that anyone accused shall not be deprived of rights secured by this amendment, the judge before whom application is made to remove the accused from his domicile to a district in another state, must find that there is probable cause for believing the accused committed the alleged offense in such other district. Tinsley v. Treat, 205 U.S. 20, 27 S. Ct. 430, 51 L. Ed. 689, 1907 U.S. LEXIS 1448 (1907).

This provision does not require the prosecution of the defendant in the district wherein he may reside at the time of the commission of the offense, or where he may happen to be at that time, provided he is prosecuted where the offense is committed. Armour Packing Co. v. United States, 209 U.S. 56, 28 S. Ct. 428, 52 L. Ed. 681, 1908 U.S. LEXIS 1738 (1908).

The Sixth Amendment does not grant an accused the right of vicinage of the crime as an essential incident of a jury trial. Advisory Opinion to Governor, 437 A.2d 542, 1981 R.I. LEXIS 1405 (R.I. 1981).

“Vicinage” refers to the place from which the jury is drawn whereas venue refers to the actual place of trial. Advisory Opinion to Governor, 437 A.2d 542, 1981 R.I. LEXIS 1405 (R.I. 1981).

Fair Trial.

Despite the primary illegality of his pretrial lineup, a courtroom identification did not violate a defendant’s right to a fair trial where the prosecutrix had had a two-to-three minute face-to-face confrontation with him prior to the assault and had soon after the incident made a written notation of, and recollected, the color and registration of his automobile and his attire and appearance. State v. Beaulieu, 110 R.I. 113 , 290 A.2d 850, 1972 R.I. LEXIS 886 (1972).

Where notoriety and publicity of defendant’s criminal activities over a period of years were generally known throughout New England, and evidence did not reveal publicity of defendant’s activities as incident to the particular crime being tried, defendant was not deprived of fair trial to the extent of denial of due process. State v. Patriarca, 112 R.I. 14 , 308 A.2d 300, 1973 R.I. LEXIS 955 (1973).

To premise prejudicial misconduct or remarks made by a trial justice, the remarks must be of such a character that they reasonably must be held to impair the impartiality of the trial. State v. Rogers, 420 A.2d 1363, 1980 R.I. LEXIS 1838 (R.I. 1980).

Although motions for judgment of acquittal should be heard and disposed of outside the jury’s presence, a contravention of that policy without more contributing factors does not automatically deprive a defendant of a fair trial. State v. Rogers, 420 A.2d 1363, 1980 R.I. LEXIS 1838 (R.I. 1980).

A criminal defendant has the right to be present at all stages of his trial when his absence may affect the fairness of the proceedings against him. State v. Holland, 430 A.2d 1263, 1981 R.I. LEXIS 1173 (R.I. 1981).

Where the trial justice found that the government in good faith did not learn of defendant’s confession until the eve of trial, defense counsel was promptly informed of the admission and the government’s intent to introduce it at trial, and the trial justice offered defendant an opportunity for a recess following the close of direct testimony eliciting the confession if he needed more time to prepare adequately before commencing cross-examination, it was clear that the trial justice adequately protected defendant’s due-process rights, right to effective assistance of counsel and right to a fair trial by affording him opportunities to request more time throughout the trial. State v. Babbitt, 457 A.2d 1049, 1983 R.I. LEXIS 829 (R.I. 1983).

The effect upon defense counsel to justifiable admonitions of defense counsel for leaning on the judge’s bench and suggesting that it was improper for counsel to tell the jurors not to take into account the defendant’s conduct on the witness stand were not violative of the defendant’s right to a fair trial or the effective assistance of counsel. State v. Berberian, 459 A.2d 928, 1983 R.I. LEXIS 861 (R.I. 1983).

In shoplifting trial, failure to preserve as evidence the items concealed by defendant and later recovered by the store detective did not deprive defendant of a fair trial since there was no evidence that the state acted in bad faith or was negligent with regard to the loss of the evidence; the items themselves were not difficult for the jury to visualize; and the state’s untainted proof, the eyewitness testimony of the store detective, was strong independent evidence of defendant’s guilt. State v. Lewis, 467 A.2d 1387, 1983 R.I. LEXIS 1118 (R.I. 1983).

Where the defendant was charged with manslaughter for allegedly stabbing her husband during an argument, the prosecutor’s question to the defendant regarding an unsubstantiated allegation that the defendant had stabbed her former husband was inherently prejudicial to her right to a fair and impartial trial and its destructive impact was not cured by the cautionary instructions given to the jury by the trial justice. State v. Ordway, 619 A.2d 819, 1992 R.I. LEXIS 216 (R.I. 1992).

A newspaper’s qualified right of access to an FBI agent’s affidavit that was submitted in support of a request for a warrant to search the Providence City Hall was outweighed by the likelihood that dissemination of the affidavit’s contents prior to trial would prejudice the defendants’ right to a fair trial where (1) the affidavit was unusually prejudicial as it contained many statements that appeared to have little bearing on whether probable cause existed to search the locations in question, (2) it contained more statements attributed to third parties and anonymous sources than are found in a typical search warrant affidavit, as well as an inordinate number of what were nothing more than the affiant’s conclusions and opinions, (3) it was written in a uniquely inflammatory style, with a storybook format that was liberally interspersed with evocative headings and characterizations, and (4) it contained derogatory statements about individuals who had not been charged that were unsubstantiated. United States v. Cianci, 175 F. Supp. 2d 194, 2001 U.S. Dist. LEXIS 20706 (D.R.I. 2001).

Impartial Jury.

Pending legislation to reduce size of petit jury from 12 members to 6 was not repugnant to either Sixth or Seventh Amendments to federal constitution.Advisory Opinion to Senate, 108 R.I. 628 , 278 A.2d 852, 1971 R.I. LEXIS 1319 (1971).

The practice in this state requiring a misdemeanant to be tried without a jury, convicted, and sentenced before he may, by resorting to appellate procedure, obtain a jury trial de novo in the superior court is violative of the constitutional right to a trial by jury. State v. Holliday, 109 R.I. 93 , 280 A.2d 333, 1971 R.I. LEXIS 1029 (1971).

Juvenile presented to family court as an alleged delinquent is not constitutionally entitled to a trial by jury. In re McCloud, 110 R.I. 431 , 293 A.2d 512, 1972 R.I. LEXIS 933 (1972).

Defendant was not deprived of impartial jury where trial judge in his discretion called the jury after three days’ deliberation and urged them to reach a unanimous verdict if they could do so without compromising personal convictions as to guilt or innocence. State v. Patriarca, 112 R.I. 14 , 308 A.2d 300, 1973 R.I. LEXIS 955 (1973).

There is no deprivation of a defendant’s constitutional rights by statutory limiting of eligibility to serve on the state’s juries to those persons who are 21 years or older. State v. Spivey, 114 R.I. 43 , 328 A.2d 414, 1974 R.I. LEXIS 1059 (1974).

A juvenile who has been found to be delinquent has no state or federal constitutional right to a jury trial. In re Wilkinson, 116 R.I. 163 , 353 A.2d 199, 1976 R.I. LEXIS 1260 (1976).

Since trial by jury necessarily requires a jury which is able to comprehend and intelligently resolve the factual issues submitted to its verdict, it follows that a juror should be free from physical disabilities that would interfere with the proper discharge of his duties. State v. Berberian, 118 R.I. 413 , 374 A.2d 778, 1977 R.I. LEXIS 1478 (1977).

It is generally held that the issue of whether a physical infirmity such as deafness is sufficient to disqualify a juror is a question addressed to the sound discretion of the trial justice and such decision will not be disturbed except where an abuse of discretion is shown. State v. Berberian, 118 R.I. 413 , 374 A.2d 778, 1977 R.I. LEXIS 1478 (1977).

Where the juror during examination by the judge openly admitted that he could not hear the questions submitted to him and a considerable number of his answers were not responsive to the questions asked, the supreme court found that the juror had a hearing impediment sufficient to deny defendant’s right to a fair, impartial trial and an unanimous verdict. State v. Berberian, 118 R.I. 413 , 374 A.2d 778, 1977 R.I. LEXIS 1478 (1977).

Where a potential juror in the presence of the prospective jury panel stated on voir dire his opinion about the propensities of defendant’s family to get into trouble with the law, the prejudicial effect of the statement was not cured by a cautionary instruction or by individual examination of the potential jurors, hence defendant was denied his right to trial by an impartial jury. State v. Massey, 119 R.I. 666 , 382 A.2d 801, 1978 R.I. LEXIS 601 (1978).

The mandate of due process applies equally to grand and petit juries. State v. O'Coin, 417 A.2d 310, 1980 R.I. LEXIS 1673 (R.I. 1980).

A jury selection system that entirely excludes an identifiable and cognizable class playing a major role in the community, without a rational basis therefor, impermissibly offends the fair cross-section requirement and cannot be tolerated. State v. O'Coin, 417 A.2d 310, 1980 R.I. LEXIS 1673 (R.I. 1980).

The United States Constitution preserves only such characteristics of the common-law jury system which, in light of their particular function in relation to the purposes of the jury trial, may be considered indispensable components of the jury-trial right. Advisory Opinion to Governor, 437 A.2d 542, 1981 R.I. LEXIS 1405 (R.I. 1981).

In order for a defendant to challenge the constitutionality of a petit jury, he must file a motion prior to trial pursuant to Super. Ct. R. Crim. P. 12(b)(2). State v. Dionne, 442 A.2d 876, 1982 R.I. LEXIS 815 (R.I. 1982).

Right to be tried by a jury drawn from a fair and impartial cross section of the community is a procedural due process right constituting a fundamental aspect of the right to a jury trial guaranteed by the Sixth Amendment. State v. Manocchio, 448 A.2d 761, 1982 R.I. LEXIS 965 (R.I. 1982), cert. denied, 459 U.S. 1173, 103 S. Ct. 820, 74 L. Ed. 2d 1017, 1983 U.S. LEXIS 3223 (1983).

Where college students and professors wishing to be exempted from jury duty could obtain such exemption by affirmatively claiming such status, as opposed to there being an automatic exemption from jury duty for such persons, there was no ground for finding a violation of the fair cross-section requirement of this amendment absent a showing that a cognizable class of persons had been excluded from jury service. State v. Bassett, 447 A.2d 371, 1982 R.I. LEXIS 925 (R.I. 1982) (decided prior to 1980 amendment to § 9-9-3 , eliminating exemption for college students and professors).

The former exemption from jury service granted to professors and students at colleges or the present exemptions granted to members of specific occupations do not violate cross-section requirements for jury selection. State v. Courteau, 461 A.2d 1358, 1983 R.I. LEXIS 963 (R.I. 1983); State v. Conway, 463 A.2d 1319, 1983 R.I. LEXIS 1039 (R.I. 1983).

The defendant is prejudiced when a prospective juror, in the presence of other prospective jurors who later serve on the jury, expresses his opinion that the defendant is guilty of the crimes for which she is to be tried, as the unsworn testimony of a juror regarding a fact that is revelant to the determination of an issue before the jury constitutes misconduct in itself. The proper standard to be applied in the case of juror misconduct is that a new trial must be granted unless it appears beyond a reasonable doubt that no prejudice has resulted. State v. Carmody, 471 A.2d 1363, 1984 R.I. LEXIS 466 (R.I. 1984).

Men and women from the so-called “professional” occupations are not a “cognizable” or “distinctive” group, thus their exclusion from the grand jury did not violate the defendant’s right to a jury drawn from a fair cross-section of the community. United States v. Marrapese, 610 F. Supp. 991, 1985 U.S. Dist. LEXIS 19037 (D.R.I. 1985).

Even though the allegations of juror misconduct were contained in affidavits which themselves were inadmissible hearsay, further inquiry into the circumstances and conditions under which extraneous information may have been imparted to the jury was required to ensure that the defendant’s rights had not been abridged. State v. Hartley, 656 A.2d 954, 1995 R.I. LEXIS 96 (R.I. 1995).

When the jury indicates to the trial court that they do not understand an element of the offense charged or some other matter of law central to the guilt or the innocence of the accused, the trial court must clarify the matter for the jury in a concrete and unambiguous manner. State v. Prefontaine, 667 A.2d 531, 1995 R.I. LEXIS 260 (R.I. 1995).

Anonymous jury empanelment was not an abuse of discretion given a demonstrated need, coupled with a cautionary instruction. United States v. DeLuca, 137 F.3d 24, 1998 U.S. App. LEXIS 3250 (1st Cir.), cert. denied, 525 U.S. 874, 119 S. Ct. 174, 142 L. Ed. 2d 142, 1998 U.S. LEXIS 5669 (1998), cert. denied, 525 U.S. 917, 119 S. Ct. 268, 142 L. Ed. 2d 221, 1998 U.S. LEXIS 6317 (1998).

Where the record made manifest that the trial judge took into account fully the principle that a person’s race must be regarded as unrelated to his fitness as a juror, and where the judge’s resolution of the issue of pretext was based on her assessment of the prosecutor’s demeanor and credibility, the reviewing court could not disturb her ruling. United States v. Lara, 181 F.3d 183, 1999 U.S. App. LEXIS 14786 (1st Cir. 1999), cert. denied, 528 U.S. 979, 120 S. Ct. 432, 145 L. Ed. 2d 338, 1999 U.S. LEXIS 7309 (1999), cert. denied, 528 U.S. 1127, 120 S. Ct. 960, 145 L. Ed. 2d 833, 2000 U.S. LEXIS 751 (2000), cert. denied, 528 U.S. 1098, 120 S. Ct. 842, 145 L. Ed. 2d 708, 2000 U.S. LEXIS 472 (2000).

Where the record was devoid of any affirmative statement by a juror that she would be able to remain fair and impartial in her deliberations unfettered by any outside influence, and where the timing of the disclosure that she could not “open up to them upstairs” immediately after the judge’s charge to the jury to “try to have an open mind, open up to your fellow jurors” raised questions that should have been clarified by further inquiry by the trial justice or by counsel. State v. DaSilva, 742 A.2d 721, 1999 R.I. LEXIS 221 (R.I. 1999).

United States Supreme Court has held that the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial; to demonstrate a prima facie violation of the fair cross section requirement, the defendant must establish: (1) that the group alleged to be excluded is a distinctive group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under representation is due to systematic exclusion of the group in the jury selection process. State v. Sosa, 839 A.2d 519, 2003 R.I. LEXIS 232 (R.I. 2003).

Where a defendant makes neither an allegation nor a showing that the jury selection process has resulted in the systematic and deliberate exclusion of members of a particular race, the defendant has clearly not met his burden of proof for a fair cross section challenge. State v. Sosa, 839 A.2d 519, 2003 R.I. LEXIS 232 (R.I. 2003).

Sixth Amendment is designed to prevent the state from utilizing a system that deliberately excludes groups of potential jurors from the entire jury pool. State v. Sosa, 839 A.2d 519, 2003 R.I. LEXIS 232 (R.I. 2003).

Accused has no right to demand that members of his race be on the jury which tries him. State v. Sosa, 839 A.2d 519, 2003 R.I. LEXIS 232 (R.I. 2003).

Juror’s demeanor at voir dire, inattentiveness, lack of eye contact, and body language, was a sufficient race-neutral basis for use of a peremptory challenge. State v. Pona, 926 A.2d 592, 2007 R.I. LEXIS 93 (R.I. 2007).

Defendant was properly classified by the trial court as a habitual offender pursuant to R.I. Gen. Laws § 12-19-21(a) due to prior convictions, as such prior convictions did not have to be proved to a jury beyond a reasonable doubt under the jury trial right of U.S. Const. amend. VI. State v. Ramirez, 936 A.2d 1254, 2007 R.I. LEXIS 130 (R.I. 2007).

Defendant’s rights under the Rhode Island Constitution and the Sixth Amendment were not violated when the trial court found that defendant was a habitual offender pursuant to R.I. Gen. Laws § 12-19-21 without submitting that question to the jury to be proved beyond a reasonable doubt. Recidivism was quite common and the fact of prior convictions was easily determined by resort to the public record, which meant that the fact of a prior conviction did not have to be submitted to a jury and proven beyond a reasonable doubt to obtain habitual offender sentencing. State v. Hall, 940 A.2d 645, 2008 R.I. LEXIS 7 (R.I. 2008).

As defendant failed to make out a prima facie case of purposeful discrimination by the prosecutor’s use of a peremptory challenge to remove the only Asian prospective juror, defendant’s claim that his equal protection rights were violated lacked merit; the trial court conducted a Batson analysis and determined that the prosecutor had also challenged other prospective jurors who were Caucasian and he asked all of the prospective jurors virtually the same questions. State v. Palmer, 962 A.2d 758, 2009 R.I. LEXIS 10 (R.I. 2009).

Juror’s racial bias is not the sort of “extraneous prejudicial information” or “outside influence” contemplated by R.I. R. Evid. 606 (b), but Rule 606(b) does not preclude the admission of such testimony where necessary to protect a defendant’s constitutional right to a fair trial by an impartial jury. State v. Brown, 62 A.3d 1099, 2013 R.I. LEXIS 45 (R.I. 2013).

Defendant’s right to a fair trial by an impartial jury was not violated as the trial justice did not err in denying defendant’s motion to pass the case because the prosecutor’s question to defendant regarding the possession of photographs of naked individuals was not sufficiently related to charges of assault by strangulation and simple assault; the possession of the photographs was not criminal; and the prosecutor’s question was not so inflammatory that the trial justice was unable to expiate the harm. The trial justice correctly sustained defendant’s objection and gave a cautionary instruction to the jury that cured the prejudice created by the prosecutor’s improper comments; and the jurors nodded in response that they could disregard the question. State v. Funches, 160 A.3d 981, 2017 R.I. LEXIS 72 (R.I. 2017).

Defendant showed no Batson violations because (1) excusing a Hispanic juror for disinterest was race-neutral, and (2) an African-American juror asked to be excused out of fear of retaliation at work. State v. Porter, 179 A.3d 1218, 2018 R.I. LEXIS 28 (R.I.), cert. denied, 139 S. Ct. 376, 202 L. Ed. 2d 287, 2018 U.S. LEXIS 6212 (2018).

— Grand Jury.

Where jury commissioners excluded “the president, professors, tutors and students of recognized universities and colleges” such grand jury was composed in violation of constitutional requirements. State v. Jenison, 122 R.I. 142 , 405 A.2d 3, 1979 R.I. LEXIS 2142 (1979).

A grand jury selected under a procedure that systematically excluded members of the college and university academic community was unconstitutionally selected and indictments by such were invalid. State v. O'Coin, 417 A.2d 310, 1980 R.I. LEXIS 1673 (R.I. 1980).

The rule in Jenison v. State, 122 R.I. 142 , 405 A.2d 3 (1979) shall apply in the cases of all defendants who were indicted by grand juries impaneled after the date of Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975), January 21, and whose convictions have not become final by the date of this opinion. State v. O'Coin, 417 A.2d 310, 1980 R.I. LEXIS 1673 (R.I. 1980).

The rule in Jension v. State, 122 R.I. 142 , 405 A.2d 3 (1979) is not limited to grand juries drawn from a pool that systematically excluded members of the college and university academic community. State v. Manocchio, 448 A.2d 761, 1982 R.I. LEXIS 965 (R.I. 1982), cert. denied, 459 U.S. 1173, 103 S. Ct. 820, 74 L. Ed. 2d 1017, 1983 U.S. LEXIS 3223 (1983).

A defendant indicted prior to the ruling in Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975) cannot challenge the composition of the indicting grand jury on grounds that jury selection system entirely excluded an identifiable and cognizable class, and thus impermissibly offended the fair cross-section requirement. State v. Manocchio, 448 A.2d 761, 1982 R.I. LEXIS 965 (R.I. 1982), cert. denied, 459 U.S. 1173, 103 S. Ct. 820, 74 L. Ed. 2d 1017, 1983 U.S. LEXIS 3223 (1983).

Jury Challenges.

It is not error for the trial justice to allow the prosecutor to use a peremptory challenge to dismiss a black juror without requiring a racially neutral, non-discriminatory explanation for the challenge, where the juror challenged is black, not a member of the defendant’s race, and the defendant shows no pattern of discrimination or other circumstances during voir dire that support a finding of a discriminatory motive on the part of the prosecutor. State v. Kelly, 554 A.2d 632, 1989 R.I. LEXIS 24 (R.I. 1989).

The fact that the excluded juror knew the defense attorney prior to the trial as counsel to a friend is a sufficiently neutral reason for excluding him. Even if we assume that defendant set out a prima facie case of racial discrimination, the court believes that the state met its burden of proof by advancing a neutral reason for exercising the peremptory challenge against the excluded juror. State v. Ramos, 574 A.2d 1213, 1990 R.I. LEXIS 101 (R.I. 1990).

For case citing Holland v. Illinois, 493 U.S. 474, 480, 110 S. Ct. 803, 807, 107 L. Ed. 2d 905 (1990) for the principle that the sixth amendment does not constrain the state’s exclusion of members of a cognizable racial group at the peremptory challenge stage provided the sixth amendment requirement of a representative venire has been met, see Chakouian v. Moran, 975 F.2d 931, 1992 U.S. App. LEXIS 23131 (1st Cir. 1992).

Trial court did not err in refusing defendant’s request for a hearing on whether the jury selection process resulted in a systematic and deliberate exclusion of men. There was no evidence in the record showing that the jury was not a fair cross-section of the community, nor was there any reason for the trial court to think otherwise; thus, defendant had not established a prima facie case of a Sixth Amendment violation. State v. Lawless, 996 A.2d 166, 2010 R.I. LEXIS 88 (R.I. 2010).

Juvenile Proceedings.

Before a court may accept an admission of delinquency, the juvenile must be informed of his right to be informed of the nature of the charges, the maximum sentence that may be imposed, the benefit of the presumption of innocence, the privilege against self-incrimination, the right to confront and cross-examine his accusers and the witnesses against him, the right to testify and to call witnesses in his own defense, the right to have the state prove the juvenile’s guilt beyond a reasonable doubt prior to any finding of delinquency, and the right to appeal any delinquency finding. In re John D., 479 A.2d 1173, 1984 R.I. LEXIS 550 (R.I. 1984).

If a juvenile charged with acts of delinquency which would constitute a felony if committed by an adult is unable to afford counsel, a public defender should be made available to advise him. In re John D., 479 A.2d 1173, 1984 R.I. LEXIS 550 (R.I. 1984).

Nature and Cause of Accusation.

A statute prescribing course of conduct for motorist colliding with unattended vehicle is not vague and indefinite in violation of this amendment because of the omission of the work “knowingly” from the statute, such knowledge being implied as a prerequisite to the violation of the statute. State v. Lemme, 104 R.I. 416 , 244 A.2d 585, 1968 R.I. LEXIS 662 (1968).

There was no deprivation of right to be informed of the nature of an offense, where defendant was charged by short-form indictment pursuant to former § 12-12-7 (see now § 12-12-1.4 and Super. Ct. R. Crim. Pro. 12). State v. Lerner, 112 R.I. 62 , 308 A.2d 324, 1973 R.I. LEXIS 957 (1973).

An indictment charging the common law offense of conspiracy, under § 11-1-1 , which goes on to recite various specific acts, which in themselves constitute separate substantive offenses intended to be perpetrated in the course of the conspiracy, sufficiently apprised the defendant of the charges against him as required by this amendment and former R.I. Const., Art. 1, § 10 (see now R.I. Const., Art. 1, Sec. 10 ). State v. Giorgi, 115 R.I. 1 , 339 A.2d 268, 1975 R.I. LEXIS 1110 (1975).

Section 11-7-10 is not so vague and lacking in ascertainable standards of guilt as to deny a defendant his constitutional right to be informed of the nature and cause of the accusation against him. State v. Capone, 115 R.I. 426 , 347 A.2d 615, 1975 R.I. LEXIS 1166 (1975).

Though the indictment charging the defendant with sexual assault was inartfully drawn in that it did not refer directly to the subsection of the section under which he was being charged, the count was otherwise sufficient because the defendant, having been put on notice that he was being charged with first-degree sexual assault, suffered no prejudice; furthermore, the bill of particulars for which defendant moved with respect to other charges was sufficient to provide him with the specific circumstance of force or coercion underlying the first charge. State v. Waite, 484 A.2d 887, 1984 R.I. LEXIS 631 (R.I. 1984).

An indictment satisfies the sixth amendment if it contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend. United States v. Lussier, 929 F.2d 25, 1991 U.S. App. LEXIS 4965 (1st Cir. 1991).

A habeas corpus petitioner failed to show that the jury charge altering the language in the indictment changed the elements of the offense charged and that he was convicted of a crime not charged in the grand jury indictment. Therefore, he failed to establish a violation of the Fifth or Sixth Amendments to the United States Constitution that would warrant granting his petition based on the ground that the indictment was constructively amended. Gordon v. Vose, 879 F. Supp. 179, 1994 U.S. Dist. LEXIS 19929 (D.R.I. 1994).

Process for Witnesses.

The right to compulsory process is not a right that may be taken away at the sole will of a trial justice without clear legal justification, hence a refusal by the court to adjourn case until the following day to secure attendance of a physician deprived defendant of his right to a fair and impartial trial. State v. Rossi, 71 R.I. 284 , 43 A.2d 323, 1945 R.I. LEXIS 46 (1945).

Where defendant did not offer to prove that testimony of an absent witness would be material, that due diligence was used in attempting to procure attendance of the absent witness, or that testimony of the absent witness would not be merely cumulative, the trial justice did not unconstitutionally deprive defendant of his right to compulsory process of witnesses in denying the motion to pass. State v. Patriarca, 112 R.I. 14 , 308 A.2d 300, 1973 R.I. LEXIS 955 (1973).

Since there was no reason to believe that the military justice process would not grant the same right to compel a witness to appear as afforded in a civilian criminal trial, nor reason to believe that if an attempt was made to deny those rights there would be no remedy within the military judicial system, the court declined to review an alleged sixth amendment claim. Cushing v. Tetter, 478 F. Supp. 960, 1979 U.S. Dist. LEXIS 11307 (D.R.I. 1979).

Where defendant sought continuance in order to obtain absent witness, but defendant did not show that such witness was available or that he would testify for defendant or that the testimony of such witness would not be merely cumulative, and before the trial defendant took no action to procure such witness’ presence at the trial, the denial of a continuance was not error. State v. Barnes, 122 R.I. 451 , 409 A.2d 988, 1979 R.I. LEXIS 1562 (1979).

The right to call witnesses, like other due process rights, is circumscribed by the necessary mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application. La Plante v. Southworth, 484 F. Supp. 115, 1980 U.S. Dist. LEXIS 9904 (D.R.I. 1980).

Where officers on three occasions went to home of witness and apprised her that they intended to serve a subpoena on her, and on all three occasions witness refused admittance to the officers so as to frustrate their efforts to serve her personally, service requirements of Super. Ct. Crim. Rule 17(d) were satisfied, and court was empowered to issue a body attachment. State v. Counts, 452 A.2d 1141, 1982 R.I. LEXIS 1097 (R.I. 1982).

The trial justice correctly refused to reveal a confidential informant’s identity, where the informant did not participate in any aspect of the crime and disclosure of his identity was unnecessary to issue a search warrant. State v. Riccio, 551 A.2d 1183, 1988 R.I. LEXIS 150 (R.I. 1988).

Exclusion of evidence of a proposed impeachment witness was a proper sanction for defendant’s discovery violations in failing to timely reveal the existence of the witness. State v. Gehrke, 835 A.2d 433, 2003 R.I. LEXIS 202 (R.I. 2003).

Public Trial.

Where the record did not establish that the size of the courtroom deprived defendant of a fair trial or that the public was excluded from the trial, it was not error to deny defendant’s motion to conduct trial in larger courtroom. State v. Lerner, 112 R.I. 62 , 308 A.2d 324, 1973 R.I. LEXIS 957 (1973).

Although the right to a public trial is fundamental, it is not a “limitless imperative” of a criminal defendant but rather is subject to a court’s inherent power to regulate admission to the courtroom and to restrict attendance at the trial as conditions and circumstances may reasonably demand in order to preserve order and decorum, or to protect the rights of the parties and the witnesses, or generally to further the administration of justice. State v. Santos, 122 R.I. 799 , 413 A.2d 58, 1980 R.I. LEXIS 1473 (1980).

A trial justice may properly order the public from the courtroom if, in light of the nature of the crime, the expected testimony, or the emotional state of the witness, he has determined that the testimony would likely be severely hampered or distorted if the witness were required to testify in public. State v. Santos, 122 R.I. 799 , 413 A.2d 58, 1980 R.I. LEXIS 1473 (1980).

A trial justice has the discretion to exclude spectators from the courtroom in certain circumstances, including when necessary to protect a witness from the embarrassment or emotional pressures that often result when a victim must relate the details of a lurid crime in open court. State v. Santos, 122 R.I. 799 , 413 A.2d 58, 1980 R.I. LEXIS 1473 (1980).

If an exclusion order is necessary and the trial justice has limited its duration to that minimally required to protect the testifying witness, there is no denial of a public trial even if the court excludes all spectators. State v. Santos, 122 R.I. 799 , 413 A.2d 58, 1980 R.I. LEXIS 1473 (1980).

Section 14-1-30 is compatible with constitutional free press guarantees because the press enjoys no greater right of access to juvenile proceedings than does the general public. Excluding the press from the category of those “with a direct interest” in these proceedings is, therefore, clearly permissible. Edward A. Sherman Publishing Co. v. Goldberg, 443 A.2d 1252, 1982 R.I. LEXIS 834 (R.I. 1982).

The defendant’s right to a public trial was violated by the trial judge’s exclusion of spectators from the courtroom during the testimony of the complaining witness without first holding an evidentiary hearing. Santos v. Brown, 596 F. Supp. 214, 1984 U.S. Dist. LEXIS 22945 (D.R.I. 1984), limited, Chalk v. Rhode Island, 2009 U.S. Dist. LEXIS 125023 (D.R.I. July 23, 2009) (principles requiring evidentiary hearing given retroactive application).

A protective order prohibiting the press access to materials obtained by discovery under Super. Ct. R. Crim. P. Rule 16 must: (1) be narrowly tailored to serve the interests sought to be protected, (2) be the only reasonable alternative, (3) permit access to those parts of the record not deemed sensitive, and (4) be accompanied by the trial justice’s specific findings explaining the necessity for the order. State v. Cianci, 496 A.2d 139, 1985 R.I. LEXIS 565 (R.I. 1985).

Where the trial court’s only reason for denying the press access to materials discovered pursuant to Super. Ct. R. Crim. P. Rule 16 was that disclosure “could create a substantial probability that defendant would not get a fair trial,” the trial court’s blanket statement of a potential prejudice was insufficient to demonstrate compelling reasons for ordering the sealing of the discovery documents. State v. Cianci, 496 A.2d 139, 1985 R.I. LEXIS 565 (R.I. 1985).

The right to a public trial is not absolute; in some circumstances, it may be overridden by other rights or interests. One such interest is safeguarding the physical and psychological well-being of a minor witness. Fayerweather v. Moran, 749 F. Supp. 43, 1990 U.S. Dist. LEXIS 14652 (D.R.I. 1990).

Defendant, charged with second-degree sexual assault, was not denied his sixth amendment right to a public trial by an order permitting only members of his family, media representatives and any other individuals he designated to be present while the six-year-old complaining witness testified. Fayerweather v. Moran, 749 F. Supp. 43, 1990 U.S. Dist. LEXIS 14652 (D.R.I. 1990).

Any denial of the press and public’s right of access to a criminal trial must be based on a compelling governmental interest that is narrowly tailored to serve that interest. Providence Journal Co. v. Superior Court, 593 A.2d 446, 1991 R.I. LEXIS 123 (R.I. 1991).

The trial court has an obligation to permit access to those parts of the record not deemed sensitive when a closure is ordered. The court must carefully balance the competing constitutional interests to ensure that the interests of justice are served. Providence Journal Co. v. Superior Court, 593 A.2d 446, 1991 R.I. LEXIS 123 (R.I. 1991).

When limited closure is ordered, the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time, if the judge determines that disclosure can be accomplished while safeguarding the juror’s valid privacy interests. Even then a valid privacy right may rise to a level that part of the transcript should be sealed, or the name of a juror withheld, to protect the person from embarrassment. Providence Journal Co. v. Superior Court, 593 A.2d 446, 1991 R.I. LEXIS 123 (R.I. 1991).

A screening and identification process whereby each would-be spectator was required to present identification before being allowed to enter the courtroom did not violate constitutional guarantees of a public trial. United States v. DeLuca, 137 F.3d 24, 1998 U.S. App. LEXIS 3250 (1st Cir.), cert. denied, 525 U.S. 874, 119 S. Ct. 174, 142 L. Ed. 2d 142, 1998 U.S. LEXIS 5669 (1998), cert. denied, 525 U.S. 917, 119 S. Ct. 268, 142 L. Ed. 2d 221, 1998 U.S. LEXIS 6317 (1998).

When the court failed to acknowledge the public trial requirement of U.S. Const. Amend. VI and R.I. Const. art. I, § 10 by considering alternatives to closing the jury selection process to defendant’s family, such as limiting the size of the jury pool, allowing the family members to stand while they observed the proceedings, or requesting a larger courtroom, he violated defendant’s right to a public trial. State v. Torres, 844 A.2d 155, 2004 R.I. LEXIS 59 (R.I. 2004).

Although R.I. Gen. Laws § 11-37-13.2(a) reflects the Legislature’s effort to establish procedures for the protection of child victims, it does not anticipate that a trial justice summarily will exclude the public from attending a trial. After all, it is the defendant who is accused and whose right to a public trial is guaranteed by the Sixth Amendment to the United States Constitution.State v. Barkmeyer, 949 A.2d 984, 2008 R.I. LEXIS 73 (R.I.), cert. denied, 555 U.S. 1071, 129 S. Ct. 740, 172 L. Ed. 2d 729, 2008 U.S. LEXIS 9079 (2008).

Trial justice did not deprive defendant of his Sixth Amendment right to a public trial by closing the courtroom while child witness testified since defendant failed to articulate a legal basis for his objection. Furthermore, and fatal to defendant’s Sixth Amendment challenge, there was no showing that anyone, whether court personnel or the citizenry, was, in fact, excluded from that portion of the trial. State v. Barkmeyer, 949 A.2d 984, 2008 R.I. LEXIS 73 (R.I.), cert. denied, 555 U.S. 1071, 129 S. Ct. 740, 172 L. Ed. 2d 729, 2008 U.S. LEXIS 9079 (2008).

Trial justice’s limited ruling to close a courtroom to “unnecessary personnel,” standing alone, did not establish that the public was excluded. Absent a showing that a member of the public was prevented from attending the trial, defendant’s Sixth Amendment right was not violated. State v. Barkmeyer, 949 A.2d 984, 2008 R.I. LEXIS 73 (R.I.), cert. denied, 555 U.S. 1071, 129 S. Ct. 740, 172 L. Ed. 2d 729, 2008 U.S. LEXIS 9079 (2008).

— Minor Victim.

The determination as to whether exclusion of the public is necessary to protect a minor’s welfare must be made on a case-by-case basis. Among the factors to be weighed are the minor’s age, psychological maturity, understanding, and the nature of the crime. Fayerweather v. Moran, 749 F. Supp. 43, 1990 U.S. Dist. LEXIS 14652 (D.R.I. 1990).

In a prosecution for child molestation sexual assault, denial of defendant’s request for copies of the victim’s Department of Children, Youth and Families records did not violate his constitutional right to confrontation because in camera inspection of the records by the trial justice adequately protected his rights and properly furthered the victim’s and the state’s interest in shielding confidential information. State v. Holmes, 715 A.2d 576, 1998 R.I. LEXIS 235 (R.I. 1998).

— Television.

A trial justice’s discretionary decision to deny the defendant’s request for televised proceedings did not have any constitutional implications. State v. Price, 706 A.2d 929, 1998 R.I. LEXIS 34 (R.I. 1998).

Right to Present Defense.

Military rule of evidence making polygraph evidence inadmissible in court martial proceedings did not unconstitutionally abridge the right of the accused to present a defense. United States v. Scheffer, 523 U.S. 303, 118 S. Ct. 1261, 140 L. Ed. 2d 413, 1998 U.S. LEXIS 2303 (1998).

Right to Testify.

Trial court did not abuse its discretion when it denied defendant’s in limine request to exclude his prior manslaughter conviction for purposes of impeaching defendant’s credibility pursuant to R.I. R. Evid. 609 (b) if he chose to testify, as it was of probative value with respect to defendant’s credibility and was not unduly prejudicial; defendant was not denied his constitutional right to testify pursuant to U.S. Const. amends. VI, XIV, and R.I. Const. art. 1, § 10 , as defendant had to make a strategic decision due to his criminal history, and he had no right to testify and also to preclude impeachment by his prior convictions. State v. Drew, 919 A.2d 397, 2007 R.I. LEXIS 40 (R.I. 2007).

Scope of Application.

This amendment does not give a citizen the right to claim the guaranty when tried before a counsel or tribunal in accordance with a treaty for offenses committed in a foreign country. In re Ross, 140 U.S. 453, 11 S. Ct. 897, 35 L. Ed. 581, 1891 U.S. LEXIS 2479 (1891).

This amendment applies to the prosecution of an accused person, if the proceeding is technically criminal in nature. United States v. Zucker, 161 U.S. 475, 16 S. Ct. 641, 40 L. Ed. 777, 1896 U.S. LEXIS 2179 (1896).

This amendment controls as to any conflict between its provisions and the provisions of the second clause of U.S. Const., Art. 3, § 2. Schick v. United States, 195 U.S. 65, 24 S. Ct. 826, 49 L. Ed. 99, 1904 U.S. LEXIS 819 (1904).

Speedy Trial.

Any statute requiring an accused to pay the clerk an immediate fee on plea of not guilty would be in derogation of this amendment. United States v. Klein, 7 F.2d 255, 1925 U.S. Dist. LEXIS 1220 (D.R.I. 1925).

Where the accused himself has put his mental competency in issue he cannot thereafter claim that his constitutional or statutory right to a speedy trial has been violated. Genereux v. Pelosi, 96 R.I. 452 , 192 A.2d 630, 1963 R.I. LEXIS 108 (1963).

There was no violation of defendant’s right to speedy trial where an 11-month delay after the time of motion for a speedy trial stemmed in part from defendant’s own pretrial maneuverings. State v. Palmigiano, 112 R.I. 348 , 309 A.2d 855, 1973 R.I. LEXIS 990 (1973).

Where initial indictment was dismissed due to state’s failure to afford accused a speedy trial, any further prosecution by the state for the same or another related offense was barred. State v. Bonsante, 112 R.I. 547 , 313 A.2d 134, 1973 R.I. LEXIS 1018 (1973).

Delay of over two years in prosecuting new trial on a serious crime for which defendant had been once convicted violated defendant’s right to speedy trial where the delay was caused by state’s negligence, there was no evidence defendant sought to avoid the new trial, and he could show prejudice due to the delay. State v. King, 112 R.I. 581 , 313 A.2d 640, 1974 R.I. LEXIS 1472 (1974).

Where state, without explanation or justification, and to defendant’s prejudice, had allowed delay of nearly three years between arrest and indictment, defendant’s right to speedy trial was denied and motion to dismiss the indictment was correctly granted. State v. Crapo, 112 R.I. 729 , 315 A.2d 437, 1974 R.I. LEXIS 1498 (1974).

The passage of time, standing alone, does not justify a holding that the guarantee to a speedy trial has been violated. State v. Rollins, 113 R.I. 280 , 320 A.2d 103, 1974 R.I. LEXIS 1174 (1974); State v. Crescenzo, 118 R.I. 662 , 375 A.2d 933, 1977 R.I. LEXIS 1506 (1977).

Where 18 months of the 24-month lapse between defendant’s indictment and trial were directly attributable to his jumping bail, defendant was not denied his right to a speedy trial. State v. Newman, 117 R.I. 354 , 367 A.2d 200, 1976 R.I. LEXIS 1637 (1976).

Trial court erred in dismissing indictment on grounds that defendant’s rights to speedy trial under this amendment and former R.I. Const., art. 1, § 10 (see now R.I. Const., Art. 1 , sec. 10) had been violated, where the court failed to consider the length of delay, the reason for delay, defendant’s previous assertion of his rights, and prejudice to the defendant, and where court denied state the opportunity to respond to defendant’s allegations. State v. Paquette, 117 R.I. 505 , 368 A.2d 566, 1977 R.I. LEXIS 1718 (1977).

The guarantee to a speedy trial requires the instigation of prosecution, whether by indictment or arrest. State v. Crescenzo, 118 R.I. 662 , 375 A.2d 933, 1977 R.I. LEXIS 1506 (1977).

A backlog of cases or the normal precedence given to more serious crimes cannot suspend the accused’s right to a speedy trial. State v. Crescenzo, 118 R.I. 662 , 375 A.2d 933, 1977 R.I. LEXIS 1506 (1977).

Although there was a delay of four years between defendant’s indictment and trial, where the state made no deliberate attempt to delay the trial, defendant also having contributed to the delay, and defendant failed to prove she was prejudiced, and lastly where defendant did not make a strong effort to assert her right to a speedy trial, this right was not violated. State v. Crescenzo, 118 R.I. 662 , 375 A.2d 933, 1977 R.I. LEXIS 1506 (1977).

Extradition proceedings are not criminal prosecutions within the meaning of the Sixth Amendment, so that the right to a speedy trial did not attach in that situation. Sabatier v. Dabrowski, 586 F.2d 866, 1978 U.S. App. LEXIS 7702 (1st Cir. 1978).

The guarantee of a speedy trial is inapplicable to international extradition proceedings, which are not criminal in nature, but sui generis. Sabatier v. Dambrowski, 453 F. Supp. 1250, 1978 U.S. Dist. LEXIS 16753 (D.R.I.), aff'd, 586 F.2d 866, 1978 U.S. App. LEXIS 7702 (1st Cir. 1978).

The “arrest” or “accusatory stage” constitutes the starting point for determining whether a defendant has been denied the right to a speedy trial. State v. Roddy, 401 A.2d 23, 1979 R.I. LEXIS 1807 (R.I. 1979).

In determining whether a defendant’s speedy-trial right has been violated, the Supreme Court will apply the four-pronged test of Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Thus, it will consider and balance: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendants asserted their right to a speedy trial; and (4) whether the defendants have been prejudiced by the delay. State v. Roddy, 401 A.2d 23, 1979 R.I. LEXIS 1807 (R.I. 1979); State v. Delahunt, 121 R.I. 565 , 401 A.2d 1261, 1979 R.I. LEXIS 1872 (1979); State v. Charette, 434 A.2d 280, 1981 R.I. LEXIS 1260 (R.I. 1981); State v. Austin, 462 A.2d 359, 1983 R.I. LEXIS 972 (R.I. 1983).

The balancing test suggested in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) needs to be invoked only when the length of delay in the peculiar circumstances of the case warrants inquiry into the other factors cited. State v. Roddy, 401 A.2d 23, 1979 R.I. LEXIS 1807 (R.I. 1979).

Prejudice suffered by a defendant as a result of the delay may take the form of specific harm to the presentment of a defense or simply the form of personal prejudice such as the loss of employment and family or the experience of public scorn occasioned by having to stand accused for a significant period of time. State v. Roddy, 401 A.2d 23, 1979 R.I. LEXIS 1807 (R.I. 1979).

Although there was a 34-month delay between arrest and commencement of trial, there was no evidence of bad faith by the state; both the state and defendants shared responsibility for the delay; and, while defendants had made a demand for a speedy trial, they were not prejudiced by the delay. Therefore, defendants were not denied their right to a speedy trial. State v. Roddy, 401 A.2d 23, 1979 R.I. LEXIS 1807 (R.I. 1979).

The speedy trial right was designed to prevent oppressive pretrial incarceration; to minimize anxiety and concern of the accused; and to limit the possibility that the defense would be hampered. State v. Fortier, 427 A.2d 1317, 1981 R.I. LEXIS 1096 (R.I. 1981).

Although the gravamen of the right to a speedy trial is to protect the accused, there are other societal interests that are safeguarded by the constitutional requirement of a speedy trial. State v. Fortier, 427 A.2d 1317, 1981 R.I. LEXIS 1096 (R.I. 1981).

A valid reason, such as a missing witness, should serve to justify an appropriate delay. State v. Fortier, 427 A.2d 1317, 1981 R.I. LEXIS 1096 (R.I. 1981).

A court should not allow defendants to count, for purposes of determining the length of delay, periods of time in which defendants fail to timely comply with the state’s request for discovery and thereby profit from their own dilatory tactics. State v. Fortier, 427 A.2d 1317, 1981 R.I. LEXIS 1096 (R.I. 1981).

Right to a speedy trial was not denied where the record strongly indicated that the defendant did not want a speedy trial and that the filing of the motion was merely a perfunctory gesture since the defendant preferred to bank on the lapse of time, hoping that witnesses would disappear or memories would become dim. State v. DeVito, 414 A.2d 459, 1980 R.I. LEXIS 1561 (R.I. 1980).

The test for determining whether an accused has been denied his right to a speedy trial is set forth in Barker v. Wingo, 1972 U.S. LEXIS 34, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). State v. Allan, 433 A.2d 222, 1981 R.I. LEXIS 1242 (R.I. 1981).

In determining whether an accused has been denied his right to a speedy trial, the courts consider four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his rights and (4) the prejudice to the accused. Yet, no one of these factors alone is either a necessary or a sufficient condition to establish a deprivation. Rather, they are all related factors and must be considered together with such other circumstances as are relevant. State v. Allan, 433 A.2d 222, 1981 R.I. LEXIS 1242 (R.I. 1981).

If the delay between a defendant’s arrest and commencement of his trial is long enough to be considered “presumptively prejudicial,” the remaining three criteria (the length of the delay, the reason for the delay, and the assertion of the right by the defendant) announced in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), for determining whether there has been a violation of the right to a speedy trial will be examined. State v. Charette, 434 A.2d 280, 1981 R.I. LEXIS 1260 (R.I. 1981).

Prejudice to the defendant from a delay between his arrest and commencement of his trial may take the form of pretrial incarceration, anxiety and mental strain, or impairment of the defense of the case. State v. Charette, 434 A.2d 280, 1981 R.I. LEXIS 1260 (R.I. 1981).

A defendant’s failure to demand a speedy trial is relevant in deciding whether he has been prejudiced by delay between arrest and commencement of trial. State v. Charette, 434 A.2d 280, 1981 R.I. LEXIS 1260 (R.I. 1981).

Delay in the commencement of defendant’s trial due in part to a technical flaw in his original indictment was not a deliberate attempt by the state to prejudice defendant. State v. Charette, 434 A.2d 280, 1981 R.I. LEXIS 1260 (R.I. 1981).

Period of two and one-half years between arrest and commencement of the trial was at least “presumptively prejudicial.” State v. Charette, 434 A.2d 280, 1981 R.I. LEXIS 1260 (R.I. 1981).

Where defendant first filed a speedy trial motion 12 days after arraignment and did not renew it until he called the case ready for trial almost 33 months later, defendant was less than aggressive in asserting his right to a speedy trial and this was factor weighing against defendant’s claim that he had been denied a speedy trial. State v. Allan, 433 A.2d 222, 1981 R.I. LEXIS 1242 (R.I. 1981).

Where not only did defendant fail to demand a speedy trial but he also contributed to the delay and no serious prejudice to defendant resulted in a delay of two and one-half years between arrest and trial did not deny defendant of his right to a speedy trial. State v. Charette, 434 A.2d 280, 1981 R.I. LEXIS 1260 (R.I. 1981).

Thirty-two-month delay between accusation of commission of crime and commencement of trial was presumptively prejudicial. State v. Anthony, 448 A.2d 744, 1982 R.I. LEXIS 963 (R.I. 1982).

Failure of defendant to assert right to a speedy trial until nearly two years after return of indictment was a factor to be weighed against him in his assertion of the right. State v. Anthony, 448 A.2d 744, 1982 R.I. LEXIS 963 (R.I. 1982).

Where proceedings were delayed as result of defense counsel’s participation in another trial, and where it was unlikely that either defendant or counsel could have anticipated at time counsel was retained that other trial would go forward well in advance of defendant’s trial, delay could not be attributed to defendant. State v. Anthony, 448 A.2d 744, 1982 R.I. LEXIS 963 (R.I. 1982).

In determining cause for delay in commencement of trial, delay caused by neutral factors such as crowded dockets is weighed less heavily than delay for tactical purposes. State v. Anthony, 448 A.2d 744, 1982 R.I. LEXIS 963 (R.I. 1982).

Although felony trials should take place within six months of the indictment, such a policy should not be construed as indicating that a failure to meet that goal in a particular case amounts to a denial of the right to a speedy trial guaranteed by R.I. Const., Art. I, § 10 (see now R.I. Const., Art. 1, Sec. 10 ), and this amendment. A “presumptively prejudicial” delay may occur at 12 months in the absence of special circumstances. State v. Tarvis, 465 A.2d 164, 1983 R.I. LEXIS 1076 (R.I. 1983).

Twenty-one month delay from time of arraignment to the time of trial did not violate defendant’s right to a speedy trial, since the state was not solely responsible for the delay, the delay attributable to the state was not tactically motivated, defendant did not actively pursue his right to a speedy trial, and, although defendant was incarcerated for the entire period from his arrest until trial thereby heightening anxiety and mental strain, he was awaiting trial for a most vicious and brutal murder and there was no evidence to support a finding that his ability to conduct his defense was impaired by the incarceration or the passage of time. State v. Adams, 481 A.2d 718, 1984 R.I. LEXIS 601 (R.I. 1984).

The defendants’ assertion that they had suffered emotional trauma from awaiting trial for over a year was an insufficient basis for a claim of denial of a speedy trial. State v. Long, 488 A.2d 427, 1985 R.I. LEXIS 453 (R.I. 1985).

The mere allegation of an unavailable witness is too speculative and clearly insufficient to tip the scales in favor of a defendant in a speedy trial inquiry. State v. McMaugh, 512 A.2d 824, 1986 R.I. LEXIS 506 (R.I. 1986).

Defendant was not denied her right to a speedy trial where a portion of the delay was caused by the granting of her motion for continuance because her attorney was on trial in another jurisdiction. State v. McMaugh, 512 A.2d 824, 1986 R.I. LEXIS 506 (R.I. 1986).

Although court congestion is weighed against the state, it is not weighed so heavily as deliberate delay. State v. Macaskill, 523 A.2d 883, 1987 R.I. LEXIS 453 (R.I. 1987).

Where defendants were neither incarcerated nor under indictment nor subject to bail during the period between the dismissal of one indictment and the issuance of a subsequent indictment, that interval could not be used to determine if there was a violation of the constitutional guarantee of a speedy trial. State v. Macaskill, 523 A.2d 883, 1987 R.I. LEXIS 453 (R.I. 1987).

Delay caused by the criminal-court-calendar system that allows a case continued or not reached to go back into the scheduling computer for several months before being placed on the calendar again is usually accorded less weight than is delay deliberately caused by the state in order to gain a tactical advantage over a defendant; however, the ultimate responsibility for such delay must be borne by the government. State v. Wheaton, 528 A.2d 1109, 1987 R.I. LEXIS 548 (R.I. 1987).

Where defendant filed demands for a speedy trial at the outset of the case and put the state on notice that no trial had occurred when he moved to gain release on bail pursuant to § 12-13-7 , his actions constituted timely assertion of his right to a speedy trial. State v. Wheaton, 528 A.2d 1109, 1987 R.I. LEXIS 548 (R.I. 1987).

Where defendant was arrested on May 28, 1982, arraigned on July 7, 1982, and trial on the indictment began on August 28, 1985, the length of delay was “presumptively prejudicial”. State v. Wheaton, 528 A.2d 1109, 1987 R.I. LEXIS 548 (R.I. 1987).

Six-year delay between defendant’s arraignment and his trial for arson did not violate his right to a speedy trial, where defendant conducted discovery and sought nine separate continuances in the first two years after his arraignment and his counsel later made five additional motions to continue the proceedings. State v. Grundy, 582 A.2d 1166, 1990 R.I. LEXIS 169 (R.I. 1990).

Forty-four month preindictment delay in the case of two defendants charged with first-degree sexual assault is not prejudicial. State v. Vanasse, 593 A.2d 58, 1991 R.I. LEXIS 124 (R.I. 1991).

A defendant’s motion to dismiss for lack of a speedy trial is to be assessed according to the four-part test set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). The elements of the four-part test include (1) length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right, and (4) the prejudice to the defendant. State v. Perez, 605 A.2d 1305, 1992 R.I. LEXIS 69 (R.I. 1992).

Although nearly 18 months elapsed from the date of a defendant’s arrest until the start of his trial, and such a delay was sufficient to be presumptively prejudicial, the lack of any prejudice to the defendant as a result of the delay weighed against his claim that the state violated his speedy-trial right. State v. Austin, 643 A.2d 798, 1994 R.I. LEXIS 189 (R.I. 1994).

The defendant’s state and federal constitutional rights to a speedy trial were violated, requiring vacating of his conviction for possession-of-a-firearm charge that was brought to trial almost 11 years after the defendant’s indictment. State v. Powers, 643 A.2d 827, 1994 R.I. LEXIS 201 (R.I. 1994).

The defendant was deprived of his right to a speedy trial when the delay lasted five years and was primarily attributable to the negligence of the state. State v. DeAngelis, 658 A.2d 7, 1995 R.I. LEXIS 136 (R.I. 1995).

Although more than five years passed between the defendant’s indictment and the trial, most of that delay was attributable to the defendant’s voluntary and unlawful absence from the state. Accordingly, the trial court found, with no objection from the defendant, that the new speedy trial clock began to run when the defendant was returned to this state. Based on this finding, the length of delay was less than twelve months and, therefore, not presumptively prejudicial, eliminating the requirement to consider the remaining three Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) factors. State v. Bleau, 668 A.2d 642, 1995 R.I. LEXIS 296 (R.I. 1995).

The defendant’s single request to counsel for a speedy trial following the defendant’s extended unlawful absence from the state is clearly insufficient to qualify as an assertion of the right to a speedy trial. State v. Bleau, 668 A.2d 642, 1995 R.I. LEXIS 296 (R.I. 1995).

Defendant was not aggressively pursuing his right to a speedy trial since he was being represented by the sixth appointed counsel. State v. Johnson, 688 A.2d 285, 1997 R.I. LEXIS 210 (R.I. 1997).

Where the primary reason for a one and a half year delay between the defendant’s arrest and the start of his trial was court congestion, but some of the delay was due to the fact that the defendant was tried during that time for two other cases that occurred within the same time-frame, and some was due to minor delays attributable to the defendant, the bulk of the delay being attributable to the state was weighted less heavily in a determination of the defendant’s right to a speedy trial because the delay was the product of crowded calendars and not deliberate conduct. State v. Austin, 731 A.2d 678, 1999 R.I. LEXIS 103 (R.I. 1999).

Where, over the course of a year and a half, defendant never requested a speedy trial, but waited until ten months after his arrest to move to dismiss the charges, renewing this motion five months later, defendant’s efforts fell short of evidencing a real desire to invoke his constitutional rights and proceed to trial. State v. Austin, 731 A.2d 678, 1999 R.I. LEXIS 103 (R.I. 1999).

Where defendant suffered no prejudice resulting from pre-trial incarceration or disruption of his life, as he was already being held for other crimes committed during a robbery spree, where he presented no evidence in support of his contention that he suffered extraordinary anxiety, and where he made no showing of how the delay in bringing him to trial affected his ability to mount a defense, the defendant suffered no actual prejudice from the delay, and the trial justice correctly denied his motion to dismiss for want of a speedy trial. State v. Austin, 731 A.2d 678, 1999 R.I. LEXIS 103 (R.I. 1999).

Defendant was not denied a speedy trial since, although the state moved for and obtained several continuances, it was not primarily responsible for causing the long delays, most of which were attributable to the defendant’s churning through the seven attorneys who represented him. State v. Verrecchia, 766 A.2d 377, 2001 R.I. LEXIS 46 (R.I. 2001).

A defendant was more culpable than the state for causing a delay in his trial since he knew of his indictment, his initial court date, and the warrant for his arrest, yet still left the jurisdiction for 16 years, which was not merely negligent but willful and deliberate. State v. Crocker, 767 A.2d 88, 2001 R.I. LEXIS 70 (R.I. 2001).

Where a defendant intentionally avoided returning to the jurisdiction to face charges that he knew or should have known were still pending against him, and was thus himself largely responsible for the delay in his eventual trial, any presumptive prejudice he may have suffered was insufficient by itself to support a finding that the state violated his right to a speedy trial. State v. Crocker, 767 A.2d 88, 2001 R.I. LEXIS 70 (R.I. 2001).

Trial court did not err by failing to recognize defendant’s remarks at the commencement of his trial as a motion to dismiss for lack of a speedy trial as no such motion was articulated for the trial justice to have made a ruling on, and defendant’s counsel made no such motion. As a result, defendant’s issue on appeal that the trial court erred by denying his pro se motion to dismiss for lack of a speedy trial was deemed unpreserved for appellate review. State v. Bido, 941 A.2d 822, 2008 R.I. LEXIS 2 (R.I. 2008).

Application of the four-factor Barker speedy trial test showed that defendant was not denied the right that defendant had under U.S. Const. amend. VI and R.I. Const. art. I, § 10 . In particular, defendant did not show that he made an explicit request for a speedy trial or that defendant was prejudiced by the 25-month delay between the filing of charges and the start of defendant’s trial. State v. Oliveira, 961 A.2d 299, 2008 R.I. LEXIS 115 (R.I. 2008).

Defense counsel was not ineffective for failing to move to dismiss an indictment on speedy trial grounds; as much of the 14-year delay between the applicant’s arrest and his extradition to Rhode Island was attributable to his flight from the state and his attempts to fight extradition, such a motion would have been denied. Bido v. State, 56 A.3d 104, 2012 R.I. LEXIS 152 (R.I. 2012).

— Retrial.

Defendant was not prejudiced by a delay of 67 months between the reversal of his first conviction and his retrial, where defendant acquiesced in the delay attributable to a codefendant, obtained another delay owing to his fear of improper publicity, and did not generally show an aggressive assertion of his right to a speedy trial. State v. Nordstrom, 529 A.2d 107, 1987 R.I. LEXIS 531 (R.I. 1987).

Defendant’s right to a speedy trial was not violated, even though the 45-month delay between the vacation of the conviction from defendant’s first trial and the commencement of his retrial was presumptively prejudicial, where the primary reasons for the delay were defendant’s first attorney’s unpreparedness for trial and his second attorney’s reasonable trial preparation efforts. In addition, both attorneys failed to assert defendant’s speedy trial rights, defendant acquiesced in the first 17 months of the delay, and he failed to show prejudice. State v. Oliveira, 127 A.3d 65, 2015 R.I. LEXIS 113 (R.I. 2015).

Waiver of Rights.

Where defendant was given every opportunity to engage private counsel, but was financially incapable, and refused to cooperate with several court-appointed counsels who attempted to prepare his defense, defendant voluntarily and knowingly waived his constitutional right to counsel. State v. Desroches, 110 R.I. 497 , 293 A.2d 913, 1972 R.I. LEXIS 945 (1972).

The fact that counsel had been appointed for a defendant would not prevent him from waiving his constitutional rights. State v. Cline, 122 R.I. 297 , 405 A.2d 1192, 1979 R.I. LEXIS 2159 (1979).

The determination of whether statements made during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation in order to ascertain whether the accused in fact knowingly and voluntarily decided to waive his rights to remain silent and to have the assistance of counsel. State v. Benton, 413 A.2d 104, 1980 R.I. LEXIS 1517 (R.I. 1980).

Whether a defendant waived his rights voluntarily, knowingly, and intelligently is a question to be decided by the trial justice initially, and the burden is on the state to establish such waiver by clear and convincing evidence. State v. Benton, 413 A.2d 104, 1980 R.I. LEXIS 1517 (R.I. 1980).

Where despite being informed of his rights on several occasions, the defendant repeatedly stated that he did not want an attorney and then voluntarily wrote out a statement without any police prompting, the fact that he also wrote “yes” on a waiver-of-rights form asking whether he wanted an attorney did not render his statement inadmissible. State v. Halstead, 414 A.2d 1138, 1980 R.I. LEXIS 1643 (R.I. 1980).

The right to counsel, like most other constitutional rights, may be waived. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

Usually, in the absence of coersive pressures, a court will find a waiver of an accused’s right to counsel and privilege against self-incrimination if the defendant was informed of his rights, as required by Miranda, indicated that he understood them, and then voluntarily made a statement. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

The prosecution bears a heavy burden in establishing that an accused waived his privilege against compelled self-incrimination and his right to counsel. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

A defendant’s voluntary absence from a trial serves to operate as a waiver of the constitutional right to be present. State v. Holland, 430 A.2d 1263, 1981 R.I. LEXIS 1173 (R.I. 1981); State v. Borges, 519 A.2d 574, 1986 R.I. LEXIS 570 (R.I. 1986).

After a trial justice has made an initial finding that the defendant’s absence from a proceeding was voluntary, it is incumbent upon the defendant to come forward with evidence to rebut that finding. State v. Holland, 430 A.2d 1263, 1981 R.I. LEXIS 1173 (R.I. 1981).

The right to a speedy trial is not waived solely by failure to make a demand for a speedy trial. State v. Charette, 434 A.2d 280, 1981 R.I. LEXIS 1260 (R.I. 1981).

Where on cross-examination a prosecution witness invoked his fifth amendment privilege against self-incrimination, any claim that defendant was deprived of his right of confrontation was waived by defendant’s failure to move that the witness’ direct testimony be stricken. State v. Ahmadjian, 438 A.2d 1070, 1981 R.I. LEXIS 1423 (R.I. 1981).

Where attorney from public defendant’s office was, without defendant’s knowledge, requested by defendant’s family to represent and advise defendant after his arrest for murder, and thereupon called police station and informed police that she would act as defendant’s counsel if police intended to question defendant, failure of police to inform defendant of the call did not invalidate defendant’s subsequent waiving of his rights and giving of confession where proper Miranda warnings were first given. State v. Burbine, 451 A.2d 22, 1982 R.I. LEXIS 1013 (R.I. 1982).

The failure of the police to inform a suspect in custody that his attorney was seeking to see him did not deprive the suspect of information essential to his ability to knowingly waive his Fifth Amendment rights to remain silent and to the presence of counsel. Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410, 1986 U.S. LEXIS 32 (1986).

Judge rightfully determined that the defendants knowingly and intelligently waived their Sixth Amendment right to trial by jury as well as the parallel right guaranteed by former Art. I, sec. 10, of the Rhode Island Constitution (see now R.I. Const., Art. 1 , sec. 10) by requiring that waivers be made by each and every defendant in open court after he had admonished defendants of the nature and consequence of such waiver. State v. Cruz, 517 A.2d 237, 1986 R.I. LEXIS 546 (R.I. 1986).

The validity of a juvenile’s waiver of his or her rights should be evaluated in light of the totality of the circumstances surrounding that waiver, and the presence or absence of a parent or interested adult is but one factor to be considered in reaching that determination. In re Kean, 520 A.2d 1271, 1987 R.I. LEXIS 410 (R.I. 1987).

A defendant voluntarily waives his right to remain silent and have assistance of counsel, where he signs a Miranda rights form, which informs him that he has been indicted by the grand jury for murder. State v. Sullivan, 541 A.2d 450, 1988 R.I. LEXIS 58 (R.I. 1988).

Whether a defendant has knowingly and intelligently waived counsel is a mixed question of law and fact. United States v. Unger, 915 F.2d 759, 1990 U.S. App. LEXIS 17178 (1st Cir. 1990), cert. denied, 498 U.S. 1104, 111 S. Ct. 1005, 112 L. Ed. 2d 1088, 1991 U.S. LEXIS 772 (1991).

A defendant whose sixth amendment right to counsel has attached may execute a knowing and intelligent waiver of that right by virtue of a defendant-initiated confrontation with police. Even when the confrontation is police-initiated, a defendant is capable of executing a knowing and voluntary waiver. State v. Mattatall, 586 A.2d 1061, 1991 R.I. LEXIS 23 (R.I. 1991).

Separate hearing was not required to determine whether probationer’s statements admitting criminal conduct were voluntary and admissible; the exclusionary rule had no application in a revocation proceeding, since it was civil in nature, and there was no evidence indicating the statements were anything but voluntary. State v. Campbell, 833 A.2d 1228, 2003 R.I. LEXIS 196 (R.I. 2003).

Absent any showing of good cause for a defendant’s repeated refusal to accept the services of competent court-appointed defense counsel, defendant's actions demonstrated clearly the voluntary waiver of his right to counsel and that he was not in any way unconstitutionally forced to proceed pro se; such refusal was equivalent to a voluntary waiver of the right to counsel. State v. Laurence, 848 A.2d 238, 2004 R.I. LEXIS 100 (R.I. 2004).

Trial court erred by requiring a defendant to choose between defending himself pro se or proceeding to trial with an attorney who refused to implement the defendant’s personal right to waive a jury trial because the right to waive a jury trial was defendant’s right, not counsel’s right, and, therefore, defendant did not knowingly, intelligently, and voluntarily waive his U.S. Const. amend. VI right to counsel. State v. Sampson, 24 A.3d 1131, 2011 R.I. LEXIS 112 (R.I. 2011).

Trial court did not err in finding that defendant voluntarily waived counsel without the trial court first independently inquiring into defendant’s indigency status, after the Public Defender’s office had found him ineligible; defendant continuously said he had funds to hire counsel, even after claiming he was indigent but was deemed ineligible for Public Defender representation, and R.I. Gen. Laws § 12-15-9 , which defines eligibility requirements for indigent representation, does not expressly mandate or permit a trial justice to review the Public Defender’s finding of ineligibility. Moreover, defendant’s continuous failure to obtain representation demonstrated a voluntary waiver of counsel. State v. Souto, 210 A.3d 409, 2019 R.I. LEXIS 96 (R.I. 2019).

Despite defendant’s claims that he was forced to proceed to trial without counsel, defendant’s continuous failure to obtain representation demonstrated a voluntary waiver of counsel; defendant repeatedly represented that he was able to afford counsel but that he was not comfortable with the retainer payment system, and he was generously granted more than 10 continuances over the course of 14 months, yet he still failed to procure representation. State v. Souto, 210 A.3d 409, 2019 R.I. LEXIS 96 (R.I. 2019).

Trial court did not err in finding that defendant knowingly and intelligently waived his right to counsel because (1) defendant was told of the seriousness of the situation, (2) defendant’s alleged lack of understanding that he would have to proceed pro se if he did not hire counsel did not show a constitutionally inadequate waiver, (3) the appellate court deferred to the trial justice’s finding that defendant intentionally manipulated the proceedings, (4) defendant’s mental competency was not at issue, (5) defendant’s technical legal knowledge did not have to be assessed, and (6) defendant was clearly warned of the dangers of proceeding pro se. State v. Souto, 210 A.3d 409, 2019 R.I. LEXIS 96 (R.I. 2019).

Defendant waived his argument that his right to confrontation regarding one witness was violated because defendant did not raise a Confrontation Clause argument at trial but instead merely argued that the witness’s statements to police were probative and therefore admissible under the Rules of Evidence. State v. Johnson, 251 A.3d 872, 2021 R.I. LEXIS 45 (R.I. 2021).

— Standard of Review.

When the lower court, applying the correct rule of law, has found a waiver of the right to counsel, the defendant has the burden on appeal of showing the finding to be clearly erroneous. United States v. Unger, 915 F.2d 759, 1990 U.S. App. LEXIS 17178 (1st Cir. 1990), cert. denied, 498 U.S. 1104, 111 S. Ct. 1005, 112 L. Ed. 2d 1088, 1991 U.S. LEXIS 772 (1991).

In General.

In the absence of explicit congressional guidance, a court should consider the following factors to determine if a given case or issue implicates seventh amendment concerns: (i) customs prevailing before the merger of law and equity; (ii) the nature of the remedy sought; and (iii) the practical abilities and limitations of juries. Deborah Leslie, Ltd. v. Rona, Inc., 630 F. Supp. 1250, 1986 U.S. Dist. LEXIS 27694 (D.R.I. 1986).

This amendment is not a limitation on state power to determine when jury trials will be afforded in civil cases. Each state is free to determine by application of its own constitution and common law when, and in what circumstances, the right to a jury trial shall attach in civil cases. Bendick v. Cambio, 558 A.2d 941, 1989 R.I. LEXIS 82 (R.I. 1989).

Applicability.

An information to forfeit a schooner for exporting arms and ammunition is a cause in admiralty and no jury is necessary. United States v. La Vengeance, 3 U.S. (3 Dall.) 297, 1 L. Ed. 610, 1796 U.S. LEXIS 402 (1796).

The phrase “common law” in this amendment is used in contradistinction to equity and admiralty jurisdiction. Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 7 L. Ed. 732, 1830 U.S. LEXIS 550 (1830); Shields v. Thomas, 59 U.S. (18 How.) 253, 15 L. Ed. 368, 1855 U.S. LEXIS 695 (1856).

This amendment applies only to federal action. Pearson v. Yewdall, 95 U.S. 294, 24 L. Ed. 436, 1877 U.S. LEXIS 2170 (1877); Gunn v. Union R.R., 27 R.I. 320 , 62 A. 118, 1905 R.I. LEXIS 90 (1905).

This amendment does not apply to an action brought in a state court under the Federal Employers Liability Act. Minneapolis & St. Louis R.R. v. Bombolis, 241 U.S. 211, 36 S. Ct. 595, 60 L. Ed. 961, 1916 U.S. LEXIS 1744 (1916).

This amendment does not apply to a suit to enforce a monetary claim against the United States in the absence of statute. Galloway v. United States, 319 U.S. 372, 63 S. Ct. 1077, 87 L. Ed. 1458, 1943 U.S. LEXIS 1118 (1943).

In the usual case, a claim for damages is a suit at common law. In contrast, suits in equity do not require a jury. Pomon v. General Dynamics Corp., 574 F. Supp. 147, 1983 U.S. Dist. LEXIS 11762 (D.R.I. 1983).

The federal right to a jury trial in civil cases, provided by this amendment, is not applicable to the states. Oaks v. District Court of Rhode Island, 631 F. Supp. 538, 1986 U.S. Dist. LEXIS 27371 (D.R.I. 1986).

Successor liability and breach of fiduciary duty are equitable doctrines and are not subject to jury determination. Ed Peters Jewelry Co. v. C & J Jewelry Co., 215 F.3d 182, 2000 U.S. App. LEXIS 14485 (1st Cir. 2000).

Reexamination of Facts.

An act of congress providing for removal of a judgment in a state court, in a cause tried by jury, to a federal court for retrial on facts and law, is void. Justices v. Murray, 76 U.S. (9 Wall.) 274, 19 L. Ed. 658, 1869 U.S. LEXIS 964 (1869).

Where after a trial by jury in a state court the judgment is vacated and a new trial granted, and the case removed to the federal court, this amendment has no application. Insurance Co. v. Dunn, 86 U.S. (19 Wall.) 214, 22 L. Ed. 68, 1873 U.S. LEXIS 1441 (1874).

The last clause of this amendment is not restricted in its application to suits at common law tried before juries in federal court, but applies equally to a case tried by jury in a state court and brought to the supreme court by writ of error. Chicago, Burlington & Quincy R.R. v. Chicago, 166 U.S. 226, 17 S. Ct. 581, 41 L. Ed. 979, 1897 U.S. LEXIS 2019 (1897).

This amendment prohibits federal courts from reexamining any facts tried by a jury in any other manner than according to the rules of common law. Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 S. Ct. 523, 57 L. Ed. 879, 1913 U.S. LEXIS 2380 (1913), limited, Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 55 S. Ct. 890, 79 L. Ed. 1636, 1935 U.S. LEXIS 334 (1935).

Trial by Jury.

Right to jury trial may be waived by express agreement in open court or by implied consent. Kearney v. Case, 79 U.S. (12 Wall.) 275, 20 L. Ed. 395, 1870 U.S. LEXIS 1190 (1871).

A proceeding to cancel a certificate of naturalization is not a suit at common law and defendant is not entitled to a trial by jury. Luria v. United States, 231 U.S. 9, 34 S. Ct. 10, 58 L. Ed. 101, 1913 U.S. LEXIS 2637 (1913).

Right of jury trial is not violated by compulsory reference to auditor for preliminary investigation in dispute to be submitted to jury on a final trial, where case involves long and complicated accounts. Ex parte Peterson, 253 U.S. 300, 40 S. Ct. 543, 64 L. Ed. 919, 1920 U.S. LEXIS 1424 (1920).

This amendment does not bind the federal courts to the exact procedural incidents or details of jury trial according to the common law in 1791. Galloway v. United States, 319 U.S. 372, 63 S. Ct. 1077, 87 L. Ed. 1458, 1943 U.S. LEXIS 1118 (1943).

This amendment does not deprive federal courts of the right to direct a verdict for insufficiency of evidence. Galloway v. United States, 319 U.S. 372, 63 S. Ct. 1077, 87 L. Ed. 1458, 1943 U.S. LEXIS 1118 (1943).

Pending legislation to reduce size of petit jury from 12 members to 6 was not repugnant to either Sixth or Seventh Amendments to federal constitution.Advisory Opinion to Senate, 108 R.I. 628 , 278 A.2d 852, 1971 R.I. LEXIS 1319 (1971).

In a property owners’ suit to enjoin the city’s abandonment of streets and alleys, an order denying defendant’s motion to strike plaintiffs’ motion for a jury trial and assigning the case to determine whether the issues to be framed by plaintiffs require a jury trial was not a final judgment appealable under § 9-24-1 nor an interlocutory order or decree appealable under § 9-24-7 and plaintiffs were not denied their constitutional right to a jury trial. Corrado v. City of Providence, 114 R.I. 691 , 337 A.2d 811, 1975 R.I. LEXIS 1472 (1975).

Although the State Fair Employment Practices Act provides for a jury trial in Rhode Island Superior Court, federal law, rather than state law, governs the right to a jury trial on a state-created claim tried in federal court. Taylor v. Rhode Island, Dep't of Mental Health Retardation & Hospitals, 736 F. Supp. 15, 1990 U.S. Dist. LEXIS 5663 (D.R.I. 1990).

Plaintiff is not entitled to a jury trial under either Title VII of the federal Civil Rights Act or under the State Fair Employment Practices Act, where her request for back pay supplements constitutes a request for purely equitable relief. Taylor v. Rhode Island, Dep't of Mental Health Retardation & Hospitals, 736 F. Supp. 15, 1990 U.S. Dist. LEXIS 5663 (D.R.I. 1990).

No right to a jury trial attaches in the case of enforcement proceedings instituted by the Narragansett Bay Water Quality Management District Commission when an alleged violator refuses to abide by the commission’s compliance order. F. Ronci Co. v. Narragansett Bay Water Quality Management Dist. Comm'n, 561 A.2d 874, 1989 R.I. LEXIS 133 (R.I. 1989).

Although under the state Fair Employment Practices Act, both parties were afforded the right to request a jury trial in Rhode Island Superior Court, federal rather than state law governed the right to a jury trial on a state-created claim tried in federal court, and since Title VII, 42 U.S.C. § 2000e et seq. did not afford a jury trial in cases where purely equitable relief is being sought, the plaintiff ’s demand for trial by jury was denied. Noviello v. Rhode Island Dep't of Mental Health Retardation & Hosp., 142 F.R.D. 581, 1991 U.S. Dist. LEXIS 5081 (D.R.I. 1991).

The issues involved and the remedy sought in a contribution action pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9607, are equitable in nature, and no right to a jury trial attaches under this amendment. American Cyanamid Co. v. King Indus., Inc., 814 F. Supp. 209, 1993 U.S. Dist. LEXIS 1699 (D.R.I. 1993).

When the remedies being sought are of an equitable nature only, a plaintiff has no right to a jury trial. Lieberman-Sack v. Harvard Community Health Plan, 882 F. Supp. 249, 1995 U.S. Dist. LEXIS 4848 (D.R.I. 1995).

Court of Appeals violated plaintiff’s right to a jury trial by mandating the trial court to enter judgment for a lesser amount than determined by the jury without allowing plaintiff the option of a new trial. Hetzel v. Prince William County, 523 U.S. 208, 118 S. Ct. 1210, 140 L. Ed. 2d 336, 1998 U.S. LEXIS 1784 (1998).

A claim under the Fair Employment Practices Act, involving not only the adjudication of public rights, but also of a private party’s right to obtain compensatory and/or punitive damages from another private party for a statutory violation, was held to be a hybrid claim outside the public-rights doctrine, but within a litigant’s inviolable constitutional right to a jury trial. FUD's, Inc. v. State, 727 A.2d 692, 1999 R.I. LEXIS 79 (R.I. 1999).

Waiver.

This amendment guarantees the right to a trial by jury in many civil cases. Nonetheless, it is axiomatic that, if done so knowingly, intentionally, and voluntarily, parties to a contract can waive this fundamental right. Connecticut Nat'l Bank v. Smith, 826 F. Supp. 57, 1993 U.S. Dist. LEXIS 9514 (D.R.I. 1993).

Civil Forfeitures.

The “excessive fines” provision of this amendment is applicable to civil forfeitures. United States v. Hurley, 63 F.3d 1, 1995 U.S. App. LEXIS 19318 (1st Cir. 1995), cert. denied, 517 U.S. 1105, 116 S. Ct. 1322, 134 L. Ed. 2d 474, 1996 U.S. LEXIS 1990 (1996).

Forfeiture of defendant’s house and real estate was not prohibited by this amendment where the property was shown to have a substantial connection to his drug selling operation. United States v. 154 Manley Rd., 4 F. Supp. 2d 65, 1998 U.S. Dist. LEXIS 6476 (D.R.I. 1998).

Cruel and Unusual Punishment.

A determination of the legislature and courts of a state that solitary confinement in the penitentiary until execution of a death sentence is not cruel and unusual punishment is conclusive upon federal court. McElvaine v. Brush, 142 U.S. 155, 12 S. Ct. 156, 35 L. Ed. 971, 1891 U.S. LEXIS 2578 (1891).

To prescribe penalties for possession of cannabis and to classify it with other “hard narcotics” are legislative judgments and they are presumed to be supported by facts known to the legislature unless facts judicially known or proved preclude that possibility. State v. Carufel, 106 R.I. 739 , 263 A.2d 686, 1970 R.I. LEXIS 983 (1970).

The state does not require the power to punish with which the eighth amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law. Cushing v. Tetter, 478 F. Supp. 960, 1979 U.S. Dist. LEXIS 11307 (D.R.I. 1979).

A death sentence imposed by a sentencer who is not statutorily authorized to consider mitigating circumstances is a nullity. State v. Cline, 121 R.I. 299 , 397 A.2d 1309, 1979 R.I. LEXIS 1774 (1979).

A mandatory life sentence for first-degree murder is not cruel and unusual punishment. State v. Vaccaro, 121 R.I. 788 , 403 A.2d 649, 1979 R.I. LEXIS 1981 (1979).

The length of confinement cannot be ignored in deciding whether the confinement meets constitutional standards since a filthy, overcrowded cell and a diet of “gruel,” while tolerable for a few days, would be intolerably cruel for weeks or months. La Plante v. Southworth, 484 F. Supp. 115, 1980 U.S. Dist. LEXIS 9904 (D.R.I. 1980).

Although solitary confinement is not per se unconstitutional, under certain circumstances it may be so onerous that it consititutes cruel and unusual punishment. Morris v. Travisono, 549 F. Supp. 291, 1982 U.S. Dist. LEXIS 15204 (D.R.I. 1982), aff'd, 707 F.2d 28, 1983 U.S. App. LEXIS 27384 (1st Cir. 1983).

Where prison officials’ decision to house prisoner in solitary confinement for eight and one-half years lacked sufficient penological justification, it resulted in unnecessary and wanton infliction of pain in violation of this amendment. Morris v. Travisono, 549 F. Supp. 291, 1982 U.S. Dist. LEXIS 15204 (D.R.I. 1982), aff'd, 707 F.2d 28, 1983 U.S. App. LEXIS 27384 (1st Cir. 1983).

The proportionality of sentence analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for the commission of the same crime in other jurisdictions. State v. Ouimette, 479 A.2d 702, 1984 R.I. LEXIS 532 (R.I. 1984).

Criminal forfeiture is a form of punishment and, therefore, subject to the eighth amendment’s prohibition against disproportionate punishments. United States v. Robinson, 721 F. Supp. 1541, 1989 U.S. Dist. LEXIS 11510 (D.R.I. 1989).

The penalty of forfeiture of a defendant’s apartment lease and concomitant federal housing assistance benefits is disproportionately severe in light of the defendant’s conduct of knowingly and intentionally distributing a mixture containing cocaine-base. United States v. Robinson, 721 F. Supp. 1541, 1989 U.S. Dist. LEXIS 11510 (D.R.I. 1989).

The Eighth Amendment’s prohibition against excessive punishment does not extend to allegedly disproportionate sanctions imposed in the course of civil forfeiture proceedings. United States v. One Parcel of Real Property with Bldgs., 960 F.2d 200, 1992 U.S. App. LEXIS 4419 (1st Cir. 1992).

The imposing of an additional 25 years pursuant to the habitual-criminal statute, after the imposition of two life sentences without eligibility for parole, was not cruel and unusual punishment, where the defendant had two prior convictions for rape of a child under the age of 16 in Massachusetts for which he received prison sentences, and where he was found guilty and convicted of the murders and torture of two children with a screwdriver in Rhode Island. State v. Smith, 602 A.2d 931, 1992 R.I. LEXIS 18 (R.I. 1992).

Mandatory life sentence for racketeering, money laundering, and related charges did not violate the Eighth Amendment’s prescription against cruel and unusual punishment. United States v. Saccoccia, 58 F.3d 754, 1995 U.S. App. LEXIS 15956 (1st Cir. 1995), cert. denied, 517 U.S. 1105, 116 S. Ct. 1322, 134 L. Ed. 2d 474, 1996 U.S. LEXIS 1993 (1996).

Supreme Court of Rhode Island adopted the narrow application of proportionality announced by the United States Supreme Court in the Ewing decision, and applied it to claims under both the federal and Rhode Island constitutions by a post-conviction relief petitioner who challenged a sentence to which petitioner had agreed; since the sentence was neither illegal nor grossly disproportionate to petitioner’s offenses, the agreement was enforced. McKinney v. State, 843 A.2d 463, 2004 R.I. LEXIS 30 (R.I. 2004).

Imposition of two consecutive terms of life imprisonment for first-degree murder and using a firearm while committing a crime of violence resulting in death did not violate Eighth Amendment or R.I. Const. art. I, § 8 ; the sentence imposed was mandatory and the crime was precisely that type the Legislature intended to address when it provided for a mandatory consecutive life sentence for using a firearm while committing murder. State v. Monteiro, 924 A.2d 784, 2007 R.I. LEXIS 81 (R.I. 2007).

Inmate’s criminal contempt sentence of 25 years, with ten years to serve and 15 years suspended, did not violate the Eighth Amendment because (1) the inmate repeatedly refused to obey orders seeking the inmate’s rehabilitation through participation in treatment, which was of highest priority, given the unusually brutal nature of the murders the inmate committed, and (2) the inmate’s refusal presented a grave public danger and a criminal offense against the court’s dignity. Price v. Wall, 31 A.3d 995, 2011 R.I. LEXIS 143 (R.I. 2011).

Defendant’s consecutive life sentence for using a firearm to commit second-degree murder did not violate the Eighth Amendment or R.I. Const. art. I, § 8 because (1) no violation had been found in the context of first-degree murder, and that holding did not depend on the classification of murder, and (2) the legislature intended the sentence to apply to crimes such as defendant’s. Linde v. State, 78 A.3d 738, 2013 R.I. LEXIS 135 (R.I. 2013).

Institutions.

The relatively helpless residents of state institutions have a constitutional right to a safe and humane environment. Naughton v. Bevilacqua, 458 F. Supp. 610, 1978 U.S. Dist. LEXIS 15494 (D.R.I. 1978), aff'd, 605 F.2d 586, 1979 U.S. App. LEXIS 11703 (1st Cir. 1979).

If physician at State Institute of Mental Health, aware of a resident’s sensitivity to a family of drugs, had deliberately or recklessly disregarded those harmful side effects in administering medication, a constitutional tort would have occurred. Naughton v. Bevilacqua, 458 F. Supp. 610, 1978 U.S. Dist. LEXIS 15494 (D.R.I. 1978), aff'd, 605 F.2d 586, 1979 U.S. App. LEXIS 11703 (1st Cir. 1979).

No Interference With Rights.

Where a defendant was represented by counsel of his choice, assisted his counsel in the design of a plea agreement that prevented him from felony charges and, after thorough questioning by the hearing justice, had the opportunity to “sleep on” his decision to enter into the agreement, he could not claim his rights were violated by that agreement. State v. D'Amario, 725 A.2d 276, 1999 R.I. LEXIS 18 (R.I. 1999).

Prison Conditions.

Prison officials have a duty under the Eighth and Fourteenth Amendments to protect prisoners from violence at the hands of other prisoners. Leonardo v. Moran, 611 F.2d 397, 1979 U.S. App. LEXIS 9505 (1st Cir. 1979).

Deliberate indifference to violent attacks, sexual assaults and serious medical needs is actionable. Leonardo v. Moran, 611 F.2d 397, 1979 U.S. App. LEXIS 9505 (1st Cir. 1979).

Claim alleging serious medical needs and deliberate indifference on the part of prison officials toward those needs is cognizable as cruel and unusual punishment proscribed by this amendment. Ferranti v. Moran, 618 F.2d 888, 1980 U.S. App. LEXIS 18490 (1st Cir. 1980).

The malicious use of force on an inmate by a correctional officer violates the guarantees of the Eighth Amendment. La Plante v. Southworth, 484 F. Supp. 115, 1980 U.S. Dist. LEXIS 9904 (D.R.I. 1980).

Where the maximum security section was clearly unfit for human habitation according to any criteria used by public health officers or professional corrections personnel, and psychiatric and psychological evaluations and treatment were inadequate to meet the needs of the inmate population, this intolerable totality of conditions violated inmates’ Eighth and Fourteenth Amendment rights. La Plante v. Southworth, 484 F. Supp. 115, 1980 U.S. Dist. LEXIS 9904 (D.R.I. 1980).

Inadequate medical care to prisoners does not reach the level of a constitutional violation because of inadvertent or negligent errors in diagnosis or treatment; rather, the test of constitutional violation, which amounts to a recklessness standard, requires a showing of conscious disregard by the defendants of a substantial risk that serious injury or illness would be engendered or prolonged by the inadequacies of the medical system. La Plante v. Southworth, 484 F. Supp. 115, 1980 U.S. Dist. LEXIS 9904 (D.R.I. 1980).

Defendants did not act in disregard of the plaintiff’s constitutional rights by placing and keeping him in a behavioral control unit for 120 days since it could be said the prison officials displayed a “deliberate indifference” to the plaintiff’s illness. La Plante v. Southworth, 484 F. Supp. 115, 1980 U.S. Dist. LEXIS 9904 (D.R.I. 1980).

In the case of a class action challenging the entire system of prison medical care delivery as a condition of cruel and inhuman punishment, deliberate indifference can be shown either by a series of incidents closely related in time or by evidence that the medical facilities are so wholly inadequate for the prison population’s needs that suffering would be inevitable. La Plante v. Southworth, 484 F. Supp. 115, 1980 U.S. Dist. LEXIS 9904 (D.R.I. 1980).

Details of duration and condition may be determinative of an eighth amendment claim, for 23 hours’ daily confinement in a cell permitting communication among inmates may well be constitutional, even over extended periods, while 23 hours per day in a closed cell for a shorter period might not be permissible. Morris v. Travisono, 707 F.2d 28, 1983 U.S. App. LEXIS 27384 (1st Cir. 1983).

None of inmate’s allegations of harm or deprivation constituted constitutional violations. See Chase v. Quick, 596 F. Supp. 33, 1984 U.S. Dist. LEXIS 16780 (D.R.I. 1984).

Since all policies, practices and administrative procedures are set by and are under the control of the director of the department of corrections, and since he has set no policies to safeguard inmates against unconstitutional conduct on the part of his subordinates, he must be held responsible for the unconstitutional conduct of his subordinates. Ferola v. Moran, 622 F. Supp. 814, 1985 U.S. Dist. LEXIS 13621 (D.R.I. 1985).

Prison officials’ failure to have a nurse change an inmate’s bandages three times a day, even if coupled with some curtailment of shower access, could not be equated with deliberate indifference to his medical needs, where the prison staff did not ignore the inmate’s medical condition, deprive him of needed care in any constitutionally significant sense, or display an intention of punishing him by withholding treatment. DesRosiers v. Moran, 949 F.2d 15, 1991 U.S. App. LEXIS 26958 (1st Cir. 1991).

A prison inmate’s complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Fenner v. Moran, 772 F. Supp. 59, 1991 U.S. Dist. LEXIS 21943 (D.R.I. 1991).

A prisoner’s claim that his medium security status resigned him to a vegetative state did not amount to an eighth amendment violation. Cugini v. Ventetuolo, 781 F. Supp. 107, 1992 U.S. Dist. LEXIS 16 (D.R.I. 1992), aff'd, 1992 U.S. App. LEXIS 29867 (1st Cir. June 26, 1992).

A doctor’s diagnosis reflected deliberate indifference to an inmate’s needs sufficient to raise a factual question of an Eighth Amendment violation in light of the non-availability of qualified immunity under the circumstances. Rosen v. Chang, 811 F. Supp. 754, 1993 U.S. Dist. LEXIS 750 (D.R.I. 1993).

A claim of inadequate medical treatment which reflects no more than a disagreement with prison officials about what constitutes appropriate medical care does not state a cognizable claim under the eighth amendment. Figueroa v. Vose, 874 F. Supp. 500, 1994 U.S. Dist. LEXIS 19599 (D.R.I. 1994), aff'd, 66 F.3d 306, 1995 U.S. App. LEXIS 31634 (1st Cir. 1995).

Summary judgment was inappropriate where a reasonable jury could find that the director of the state corrections agency disregarded an excessive risk to inmates’ health and safety by not transferring or suspending a corrections officer prior to the date when he allegedly assaulted the plaintiff, since the plaintiff could demonstrate that the director was aware of altercations between the officer and inmates. Pona v. Vose, 2000 U.S. Dist. LEXIS 3760 (D.R.I. Jan. 4, 2000).

Summary judgment was inappropriate where a reasonable jury could find that the director of the state corrections agency violated the plaintiff’s rights by not suspending or transferring corrections officers, since the plaintiff could demonstrate that the director believed charges of assault made by inmates against those officers were sufficiently serious to warrant a criminal investigation, but that he subsequently failed to review his decision not to suspend, transfer, or discipline the officers. Pona v. Vose, 2000 U.S. Dist. LEXIS 3760 (D.R.I. Jan. 4, 2000).

Proportionality of Sentence.

Defendant’s claim that a life sentence was grossly disproportional to the offense was rejected given that he pled guilty to second-degree murder, and life imprisonment was within the purview of R.I. Gen. Laws § 11-23-2 , which prescribed the penalties for murder. State v. Miguel, 101 A.3d 880, 2014 R.I. LEXIS 139 (R.I. 2014).

Right to Bail.

The right to bail is not within the safeguards of the U.S. Constitution. City of Warwick v. Robalewski, 120 R.I. 119 , 385 A.2d 669, 1978 R.I. LEXIS 642 (1978).

Standing.

One to whom a statute may be constitutionally applied lacks standing to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in hypothetical situations not before the court. State v. Sharbuno, 120 R.I. 714 , 390 A.2d 915, 1978 R.I. LEXIS 721 (1978).

In General.

The Constitution does not attempt to set forth all the means by which the enumerated powers of congress may be carried into execution, and it leaves congress a large discretion as to the means that may be employed in executing a given power. Champion v. Ames, 188 U.S. 321, 23 S. Ct. 321, 47 L. Ed. 492 (1903).

If a grant of power to the federal government is found, the state rights provision of Ninth and Tenth Amendments must yield. United Public Workers v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754, 1947 U.S. LEXIS 2960 (1947).

The contention of a defendant charged with possession of cannabis that the drug posed no danger and no compelling state interest to justify abridgement of his right to smoke marijuana could not be considered without evidence to substantiate the assertion. State v. Carufel, 106 R.I. 739 , 263 A.2d 686, 1970 R.I. LEXIS 983 (1970).

The state may prohibit unlicensed drivers from operating a motor vehicle on the state’s public highways as a valid exercise of the state’s police power. Furthermore, it is evident that R.I. Gen. Laws § 31-11-18 is rationally related to the state’s legitimate interest in maintaining the safety of its public thoroughfares. Section 31-11-18 is constitutional as applied to motor-vehicle operators on this state’s public highways, including the defendant, regardless of his unwillingness to recognize the federal government. State v. Garvin, 945 A.2d 821, 2008 R.I. LEXIS 52 (R.I.), cert. denied, 555 U.S. 1012, 129 S. Ct. 571, 172 L. Ed. 2d 430, 2008 U.S. LEXIS 8233 (2008).

Common Law Rights.

By including some rights in the constitution, the framers could not have intended that other common-law rights were entitled to less protection. Morinville v. Old Colony Cooperative Bank, 579 F. Supp. 1498, 1984 U.S. Dist. LEXIS 19598 (D.R.I. 1984).

Constitutionally Recognized Rights.

The federal fish and wildlife service’s actions in closing a beach area used by nude bathers, in order to preserve the nesting habitat of a threatened bird species, does not infringe upon any associational right, property right or other constitutionally recognized right secured to the bathers by the first, fifth, and/or ninth amendments. New England Naturist Ass'n v. Larsen, 692 F. Supp. 75, 1988 U.S. Dist. LEXIS 8264 (D.R.I. 1988).

Banks.

A state may grant acts of incorporation for the attainment of those objects which are essential to the interests of society under its sovereign powers in respect to incorporation of banks. Briscoe v. President & Directors of Bank of Kentucky, 36 U.S. (11 Pet.) 257, 9 L. Ed. 709, 1837 U.S. LEXIS 178 (1837).

A state law creating a bank depositer’s guaranty fund is a valid exercise of the police power of the state. Assaria State Bank v. Dolley, 219 U.S. 121, 31 S. Ct. 189, 55 L. Ed. 123, 1911 U.S. LEXIS 1624 (1911).

Insurance.

A state law providing that, in suits on life insurance policies, it shall be no defense that the insured committed suicide, unless shown that he contemplated suicide at the time of his application for such insurance, is a legitimate exercise of the police power of the state. Whitfield v. Aetna Life Ins. Co., 205 U.S. 489, 27 S. Ct. 578, 51 L. Ed. 895, 1907 U.S. LEXIS 1372 (1907).

Property.

The states have full control over the estates of deceased persons within their respective limits. Yonley v. Lavender, 88 U.S. (21 Wall.) 276, 22 L. Ed. 536, 1874 U.S. LEXIS 1366 (1875).

A state legislature has the power to enact laws for appointment of guardians of property of nonresident infants and to authorize investment of funds of the infants. Hoyt v. Sprague, 103 U.S. 613, 26 L. Ed. 585, 1880 U.S. LEXIS 2164 (1881).

Railroads.

A state legislature may authorize municipal corporations to subscribe for stock in aid of railways and to issue bonds in payment. Rogers v. Keokuk, 154 U.S. 546, 14 S. Ct. 1162, 18 L. Ed. 74, 1866 U.S. LEXIS 1003 (1866).

Standard of Review.

In deciding whether the Tenth Amendment restricts Congress’ power to regulate in a particular case, courts are required to examine not only whether Congress has the raw power to regulate, but whether Congress’ chosen method of regulation interferes with state sovereignty. United States v. Lewis, 936 F. Supp. 1093, 1996 U.S. Dist. LEXIS 13228 (D.R.I. 1996).

Taxation.

Personal assets and personal property of an insolvent national bank in the hands of a receiver are exempt from state taxation. Rosenblatt v. Johnston, 104 U.S. 462, 26 L. Ed. 832, 1881 U.S. LEXIS 2025 (1882).

The assets of an independent contractor that are derived from the profits of a government contract stand in no preferred constitutional position so far as state taxation is concerned. Smith v. Davis, 323 U.S. 111, 65 S. Ct. 157, 89 L. Ed. 107, 1944 U.S. LEXIS 1207 (1944).

Applicability.

This amendment refers only to suits and actions by individuals against the state. Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 9 L. Ed. 1233, 1838 U.S. LEXIS 372 (1838).

An award of attorney’s fees against state officials under 42 U.S.C. § 1988 is not barred by this amendment. Lund v. Affleck, 442 F. Supp. 1109, 1977 U.S. Dist. LEXIS 12451 (D.R.I. 1977), aff'd, 587 F.2d 75, 1978 U.S. App. LEXIS 7521 (1st Cir. 1978).

This amendment bars not only suits where the state is a named defendant, but also suits in which the state, although not named, is the real party in interest. Rhode Island Affiliate, American Civil Liberties Union, Inc. v. Rhode Island Lottery Comm'n, 553 F. Supp. 752, 1982 U.S. Dist. LEXIS 16453 (D.R.I. 1982); Vanlaarhoven v. Newman, 564 F. Supp. 145, 1983 U.S. Dist. LEXIS 17586 (D.R.I. 1983).

The question in each case is whether the relief constitutes permissible prospective redress ancillary to an equitable remedy, not barred by this amendment, or a retroactive award requiring the state to pay funds from the public fisc. Vanlaarhoven v. Newman, 564 F. Supp. 145, 1983 U.S. Dist. LEXIS 17586 (D.R.I. 1983).

In the absence of prospective relief, notice and declaratory relief based solely on past violations of federal law are barred by the Eleventh Amendment. Kenyon v. Sullivan, 761 F. Supp. 951, 1991 U.S. Dist. LEXIS 5121 (D.R.I. 1991).

“Pass-through” child support payments made from the state treasury to recipients under the federal Aid to Families with Dependent Children (AFDC) program implicates the Eleventh Amendment. Kenyon v. Sullivan, 761 F. Supp. 951, 1991 U.S. Dist. LEXIS 5121 (D.R.I. 1991).

Attorney’s Fees.

This amendment does not bar an award of attorney fees in an action against state officials acting in their official capacities. Lund v. Affleck, 587 F.2d 75, 1978 U.S. App. LEXIS 7521 (1st Cir. 1978).

This amendment does not bar an attorney’s fee award out of the state treasuries against state officials in a civil rights case. Palmigiano v. Garrahy, 466 F. Supp. 732, 1979 U.S. Dist. LEXIS 14291 (D.R.I. 1979), aff'd, 616 F.2d 598, 1980 U.S. App. LEXIS 19977 (1st Cir. 1980).

Sovereign immunity does not bar federal courts from awarding attorney’s fees for work done in pursuing certified state-law claims before a state supreme court. Exeter-West Greenwich Regional School Dist. v. Pontarelli, 788 F.2d 47, 1986 U.S. App. LEXIS 23699 (1st Cir. 1986).

Consent to Suit.

The immunity of a state from suit is a personal privilege which it may waive at pleasure. Briscoe v. President & Directors of Bank of Kentucky, 36 U.S. (11 Pet.) 257, 9 L. Ed. 709, 1837 U.S. LEXIS 178 (1837).

A state may give its consent to be sued in its own courts and at the same time exclude the jurisdiction of federal courts, subject always to the condition arising out of the supremacy of the Constitution and laws of the United States. Smith v. Reeves, 178 U.S. 436, 20 S. Ct. 919, 44 L. Ed. 1140, 1900 U.S. LEXIS 1691 (1900).

A state which has waived its eleventh amendment immunity is not subject to suit for damages under 42 U.S.C. § 1983 or under an implied cause of action if its involvement in the wrong is no more than as employer of the offending officials. Naughton v. Bevilacqua, 458 F. Supp. 610, 1978 U.S. Dist. LEXIS 15494 (D.R.I. 1978), aff'd, 605 F.2d 586, 1979 U.S. App. LEXIS 11703 (1st Cir. 1979).

The relinquishment of eleventh amendment rights, like the waiver of any constitutional right, is not likely to be inferred. Marrapese v. Rhode Island, 500 F. Supp. 1207, 1980 U.S. Dist. LEXIS 14049 (D.R.I. 1980).

The fact that a state expressly waives its constitutional immunity in certain contexts militates against finding an implied waiver in other contexts. Marrapese v. Rhode Island, 500 F. Supp. 1207, 1980 U.S. Dist. LEXIS 14049 (D.R.I. 1980).

It is well established that a state’s waiver of sovereign immunity from suit in its own courts is not per se a waiver of constitutional immunity from suit in federal court. Marrapese v. Rhode Island, 500 F. Supp. 1207, 1980 U.S. Dist. LEXIS 14049 (D.R.I. 1980).

The fact that a state has relinquished its sovereign immunity in its own courts is not determinative of whether it has waived its eleventh amendment immunity from suit in federal courts. Laird v. Chrysler Corp., 460 A.2d 425, 1983 R.I. LEXIS 910 (R.I. 1983).

The broad language of § 9-31-1 , which unambiguously and without restriction holds the state “liable in all actions of tort in the same manner as a private individual or corporation [except for a limitation of damages] . . .” manifests, by overwhelming implication, a legislative intent to place the state in the same position as any other private litigant and thus amendable to suit in either state or federal court. Laird v. Chrysler Corp., 460 A.2d 425, 1983 R.I. LEXIS 910 (R.I. 1983).

Rhode Island has, by statute, broadly waived eleventh amendment immunity from suit in federal court. Pride Chrysler Plymouth, Inc. v. Rhode Island Motor Vehicle Dealers' License Comm'n, 721 F. Supp. 17, 1989 U.S. Dist. LEXIS 10817 (D.R.I. 1989).

Section 9-31-1 constitutes a waiver of the state’s eleventh amendment immunity to tort suits in federal court. Rosen v. Chang, 758 F. Supp. 799, 1991 U.S. Dist. LEXIS 3112 (D.R.I. 1991).

There was no constitutional violation in requiring the defendant, which was not summoned to appear before the bankruptcy court or served with process, to choose whether it would appear to defend its monetary interest. Phelps v. Sallie Mae Loan Serv. Ctr. (In re Phelps), 237 B.R. 527, 1999 Bankr. LEXIS 1067 (Bankr. D.R.I. 1999).

Jurisdictional Bar.

The eleventh amendment defense sufficiently partakes of the nature of jurisdictional bar that it may be raised at any point in the proceedings. Vanlaarhoven v. Newman, 564 F. Supp. 145, 1983 U.S. Dist. LEXIS 17586 (D.R.I. 1983).

The fact that eleventh amendment immunity can be waived, and that courts have the discretion to raise eleventh amendment questions sua sponte, suggests that the amendment is just as much a grant of immunity, and thus a type of defense, as it is a limitation on the courts’ jurisdiction. Parella v. Retirement Bd. of the R.I. Employees' Retirement Sys., 173 F.3d 46, 1999 U.S. App. LEXIS 7488 (1st Cir. 1999).

Officers and Agencies.

A suit against a bank to recover deposits is not a suit against the state although it is the sole proprietor of the stock. President & Dirs. of Bank of Ky. v. Wister, 27 U.S. (2 Pet.) 318, 7 L. Ed. 437, 1829 U.S. LEXIS 406 (1829); Bank of Kentucky v. Wistar, 28 U.S. (3 Pet.) 431, 7 L. Ed. 731, 1830 U.S. LEXIS 549 (1830).

A suit by trustees of a railroad company against state officers to compel them to assign to the trustees a lien held by the state upon the property covered by the trust deed pursuant to state law, is not a suit against the state. Rolston v. Missouri Fund Comm'rs, 120 U.S. 390, 7 S. Ct. 599, 30 L. Ed. 721, 1887 U.S. LEXIS 1986 (1887).

Where the state constitution makes a county liable to suit as individuals, a suit against the county is not within the prohibition of this amendment, which limits jurisdiction to suits against the state. Lincoln County v. Luning, 133 U.S. 529, 10 S. Ct. 363, 33 L. Ed. 766, 1890 U.S. LEXIS 1929 (1890).

In a proceeding in which the state is neither formally nor in reality a party, its officers, though acting by the order of the state and for its benefit, may be restrained by injunction when the remedy at law is inadequate, from doing positive acts, for which they are personally and individually liable. Belknap v. Schild, 161 U.S. 10, 16 S. Ct. 443, 40 L. Ed. 599, 1896 U.S. LEXIS 2134 (1896), overruled in part, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67, 1984 U.S. LEXIS 4 (1984).

A suit against state officers to enjoin them from enforcing a tax alleged to be in violation of United States Constitution is not a suit against the state. Gunter v. Atl. Coast Line R.R., 200 U.S. 273, 26 S. Ct. 252, 50 L. Ed. 477, 1906 U.S. LEXIS 1476 (1906).

This amendment does not preclude suits against a wrongdoer merely because he asserts that his acts are within an official authority which the state does not confer. Worcester County Trust Co. v. Riley, 302 U.S. 292, 58 S. Ct. 185, 82 L. Ed. 268, 1937 U.S. LEXIS 547 (1937).

This amendment bars suits where the liability must be paid from public funds in the state treasury even though the state is not named as a party to the action. Bowen v. Hackett, 387 F. Supp. 1212, 1975 U.S. Dist. LEXIS 14329 (D.R.I. 1975).

Only where an agency functions without meaningful fiscal and operational autonomy from the state can it partake of the state’s Eleventh Amendment immunity. Rhode Island Affiliate, American Civil Liberties Union, Inc. v. Rhode Island Lottery Comm'n, 553 F. Supp. 752, 1982 U.S. Dist. LEXIS 16453 (D.R.I. 1982).

Factors to be considered in determining whether an agency is an arm of the state include the agency’s capacity to sue and be sued, the extent to which an agency has autonomy over its operations, whether the agency performs a traditional governmental function, and whether a judgment against an agency would be paid from the state treasury. The dispositive factor is “ultimate state liability” which rests on the degree to which the organization is financially dependent upon the state, and the extent to which the organization performs a state obligation or function. Vanlaarhoven v. Newman, 564 F. Supp. 145, 1983 U.S. Dist. LEXIS 17586 (D.R.I. 1983).

If an agency is not an alter ego of the state for eleventh amendment purposes, its employees and agents forfeit any eleventh amendment protection as well. Vanlaarhoven v. Newman, 564 F. Supp. 145, 1983 U.S. Dist. LEXIS 17586 (D.R.I. 1983).

The University of Rhode Island is not an alter ego of the state for eleventh amendment purposes. Vanlaarhoven v. Newman, 564 F. Supp. 145, 1983 U.S. Dist. LEXIS 17586 (D.R.I. 1983); University of R.I. v. A.W. Chesterton Co., 721 F. Supp. 400, 1989 U.S. Dist. LEXIS 12121 (D.R.I. 1989).

Even if the University of Rhode Island were considered an arm of the state, the state has waived eleventh amendment immunity for the board of governors for higher education and the University of Rhode Island through the statutory provision giving the board the right “to sue and be sued in its own name . . .” in § 16-59-1 . Vanlaarhoven v. Newman, 564 F. Supp. 145, 1983 U.S. Dist. LEXIS 17586 (D.R.I. 1983).

An action against the director of the department of corrections was an action against a state official in his official capacity as director of a state agency, and, because it alleged violations of state law, the action was, under the eleventh amendment, outside the jurisdiction of the federal courts. Jefferson v. Moran, 479 A.2d 734, 1984 R.I. LEXIS 580 (R.I. 1984).

Members of the Marine Fisheries Council and the director of the department of environmental management have absolute immunity from actions for monetary damages or injunctive relief under this section as long as their conduct falls within their line of duty. Healey v. Bendick, 628 F. Supp. 681, 1986 U.S. Dist. LEXIS 29398 (D.R.I. 1986).

Where the actions of the administrator of the Rhode Island employees’ compensation fund threatened to undo a settlement in federal court of a case brought under federal law, the administrator could be interpled without violating the eleventh amendment. Benders v. Board of Governors, 728 F. Supp. 839, 1990 U.S. Dist. LEXIS 502 (D.R.I. 1990).

Correctional officers’ claim for injunctive relief from state officials in a civil rights action is not barred by the eleventh amendment. Corrente v. Rhode Island, Dep't of Corrections, 759 F. Supp. 73, 1991 U.S. Dist. LEXIS 3644 (D.R.I. 1991).

Failure to pursue a remedy under forfeiture provisions cut off any other path to judicial review of allegedly improper agency action. Sarit v. Drug Enforcement Admin., 796 F. Supp. 55, 1992 U.S. Dist. LEXIS 12582 (D.R.I. 1992), aff'd, 987 F.2d 10, 1993 U.S. App. LEXIS 2975 (1st Cir. 1993).

The Rhode Island Housing and Mortgage Finance Corporation functions as a sufficiently autonomous entity such that it is not an arm of the state for either diversity or Eleventh Amendment purposes. New England Multi-Unit Hous. Laundry Ass'n v. Rhode Island Hous. & Mortgage Fin. Corp., 893 F. Supp. 1180, 1995 U.S. Dist. LEXIS 10678 (D.R.I. 1995).

Paid From Public Funds.

Employment security funds and temporary disability insurance funds are not a product of general taxation, but are from revenues collected from a particular group for whom the benefit of the funds accrue, for which the state is custodian, and where the state has specifically insulated itself from financial liability for payments from the funds, a suit for retroactive payments because of unconstitutional administration of the funds is not to be paid from public funds and is not barred by this amendment. Bowen v. Hackett, 387 F. Supp. 1212, 1975 U.S. Dist. LEXIS 14329 (D.R.I. 1975).

Where the state has a continuing obligation to fund a state agency, this amendment bars suit against that agency in federal court because a judgment would be paid from public funds in the state treasury. Rhode Island Affiliate, American Civil Liberties Union, Inc. v. Rhode Island Lottery Comm'n, 553 F. Supp. 752, 1982 U.S. Dist. LEXIS 16453 (D.R.I. 1982).

The general rule is that an action by private parties seeking to impose a liability which must be paid from public funds is, absent consent to or waiver of immunity from suit, barred by this amendment. Such immunity may also apply to state officials sued in their representative or judicial capacities, to the extent that any judgment must be paid from state funds. Vanlaarhoven v. Newman, 564 F. Supp. 145, 1983 U.S. Dist. LEXIS 17586 (D.R.I. 1983).

The Eleventh Amendment bars retroactive adoption subsidy payments from state funds, even when the payments are matched by federal funds. Ferdinand v. Department for Children & Their Families, 768 F. Supp. 401, 1991 U.S. Dist. LEXIS 10175 (D.R.I. 1991).

Suits Against State.

Federal court did not have jurisdiction to determine rights of conflicting claimants to money appropriated by congress and payable “to the state treasurer who shall upon the order of the trustees of the college immediately pay over said sums to the treasurers of the respective colleges . . . entitled to receive the same” since money was granted to the state, hence suit to determine rights of claimant to fund was in essence a suit against the state prohibited by this amendment. Brown University v. Rhode Island College, 56 F. 55, 1893 U.S. App. LEXIS 2638 (C.C.D.R.I. 1893).

Claims by various individuals and organizations that § 11-19-40 failed to supply sufficient standards to guide the police department in the exercise of its authority to promulgate regulations to carry out the bingo statutory provisions, together with a request that the police be enjoined by the federal court from enforcing its regulations, were barred by the Eleventh Amendment and were clearly outside the scope of the statutory consent of the state, under § 9-31-1 to be held “liable in . . . tort . . . .” Allendale Leasing, Inc. v. Stone, 614 F. Supp. 1440, 1985 U.S. Dist. LEXIS 17165 (D.R.I. 1985), aff'd, 788 F.2d 830, 1986 U.S. App. LEXIS 24760 (1st Cir. 1986).

The federal bankruptcy statute abrogates the state’s eleventh amendment immunity in the case of a bankrupt debtor’s action against the state seeking the recovery of funds due the debtor pursuant to the Rhode Island Medical Assistance Program. Rhode Island Ambulance Servs. v. Begin (In re Rhode Island Ambulance Servs.), 92 B.R. 4, 1988 Bankr. LEXIS 1748 (Bankr. D.R.I. 1988).

— Federal Jurisdiction.

Where the state supreme court, in response to a question certified by a federal district court, ruled that § 9-31-1 manifested a legislative intent to waive the state’s immunity to suits in federal court, that ruling was dispositive of the issue. Della Grotta v. Rhode Island, 781 F.2d 343, 1986 U.S. App. LEXIS 21783 (1st Cir. 1986), disapproved, Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45, 1989 U.S. LEXIS 2975 (1989).

A federal district court is obligated to address the constitutional claims asserted in a case involving a school bus driver’s constitutional challenge to a state regulation making convicted felons ineligible to operate school buses despite the presence of potentially dispositive state law issues. Hill v. Gill, 703 F. Supp. 1034, 1989 U.S. Dist. LEXIS 564 (D.R.I.), aff'd, 893 F.2d 1325, 1989 U.S. App. LEXIS 19836 (1st Cir. 1989).

This amendment did not bar the jurisdiction of a federal court over an in rem admiralty action where the res was not within the state’s possession. California v. Deep Sea Research, 523 U.S. 491, 118 S. Ct. 1464, 140 L. Ed. 2d 626, 1998 U.S. LEXIS 2788 (1998).

— Procedure.

It is permissible to defer an eleventh amendment question until after the merits of a case are addressed, thus avoiding the constitutional question entirely if plaintiffs lose on the merits. Parella v. Retirement Bd. of the R.I. Employees' Retirement Sys., 173 F.3d 46, 1999 U.S. App. LEXIS 7488 (1st Cir. 1999).

— Suits by Citizens of State.

This amendment bars suits against an unconsenting state brought in federal court by her own citizens as well as by citizens of another state. Bowen v. Hackett, 387 F. Supp. 1212, 1975 U.S. Dist. LEXIS 14329 (D.R.I. 1975); Vanlaarhoven v. Newman, 564 F. Supp. 145, 1983 U.S. Dist. LEXIS 17586 (D.R.I. 1983).

Waiver by Federal Act.

Although the federal Fair Labor Standards Act (29 U.S.C. § 101 et seq.) contains an unequivocal abrogation of Eleventh Amendment state immunity, since that abrogation of immunity is based on Congress’ power to regulate interstate commerce pursuant to Article I of the U.S. Constitution, the waiver of immunity is ineffective in this case. Bergemann v. Rhode Island, 958 F. Supp. 61, 1996 U.S. Dist. LEXIS 20603 (D.R.I. 1996).

Applicability.

The word “servitude” has a larger meaning than the word “slavery,” and the obvious purpose of this amendment is to forbid all shades and conditions of African slavery. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L. Ed. 394, 1872 U.S. LEXIS 1139 (1873).

The provision against involuntary servitude does not prohibit the enforcement of contracts of seamen voluntarily entered into. Robertson v. Baldwin, 165 U.S. 275, 17 S. Ct. 326, 41 L. Ed. 715, 1897 U.S. LEXIS 1968 (1897).

A restraining order which prohibited defendants from a work stoppage by agreement or concerted action but which did not prohibit individuals from work stoppage did not violate this amendment. School Comm. v. Pawtucket Teachers Alliance, 101 R.I. 243 , 221 A.2d 806, 1966 R.I. LEXIS 379 (1966).

The Thirteenth Amendment is unusual in that it applies to the conduct between two private parties. Turner v. Unification Church, 473 F. Supp. 367, 1978 U.S. Dist. LEXIS 14734 (D.R.I. 1978), aff'd, 602 F.2d 458, 1979 U.S. App. LEXIS 15296 (1st Cir. 1979).

Congress has actively protected the rights guaranteed by the Thirteenth Amendment by providing such often-used statutes as 42 U.S.C. §§ 1981 and 1985. Turner v. Unification Church, 473 F. Supp. 367, 1978 U.S. Dist. LEXIS 14734 (D.R.I. 1978), aff'd, 602 F.2d 458, 1979 U.S. App. LEXIS 15296 (1st Cir. 1979).

The right to be free from involuntary servitude is a federally protected interest and therefore a federal court has the power to imply a cause of action in order to redress the violation of this interest. Turner v. Unification Church, 473 F. Supp. 367, 1978 U.S. Dist. LEXIS 14734 (D.R.I. 1978), aff'd, 602 F.2d 458, 1979 U.S. App. LEXIS 15296 (1st Cir. 1979).

An interpretation of the thirteenth amendment to include tortious acts between two private individuals, such as false imprisonment, is neither necessary, prudent nor appropriate. Turner v. Unification Church, 473 F. Supp. 367, 1978 U.S. Dist. LEXIS 14734 (D.R.I. 1978), aff'd, 602 F.2d 458, 1979 U.S. App. LEXIS 15296 (1st Cir. 1979).

Forced bumping of guidance counselor to elementary teaching position pursuant to §§ 16-13-6 and 16-16-6 and teachers’ collective bargaining agreement did not constitute involuntary servitude in violation of this amendment. Audet v. Board of Regents, 606 F. Supp. 423, 1985 U.S. Dist. LEXIS 21006 (D.R.I. 1985).

Involuntary Servitude.

This amendment does not apply to a call for service made by one’s government according to law to meet a public need. United States v. Tivian Laboratories, Inc., 589 F.2d 49, 1978 U.S. App. LEXIS 6850 (1st Cir. 1978), cert. denied, 442 U.S. 942, 99 S. Ct. 2884, 61 L. Ed. 2d 312, 1979 U.S. LEXIS 2179 (1979).