Digital Commons Network^™

Georgia Death Penalty Law, Mike Mears, Ken Driggs

Mercer Law Review

This Article covers death penalty decisions from the Georgia Supreme Court for the period from January 1, 1999 to May 31, 2000. It primarily discusses direct appeal decisions but reaches cases in a few other settings as well. This Article does not discuss holdings in capital cases that are common to all criminal appeals but is limited to death penalty law. Recent developments in Georgia death penalty law are considered in the order they would appear in a capital trial. In the period covered by this Article, the Georgia Supreme Court considered thirteen death sentences imposed in superior courts following …

Establishing Inevitability Without Active Pursuit: Defining The Inevitable Discovery Exception To The Fourth Amendment Exclusionary Rule, Stephen E. Hessler

Michigan Law Review

Few doctrines of constitutional criminal procedure generate as much controversy as the Fourth Amendment exclusionary rule. Beyond the basic mandate of the rule - that evidence obtained in violation of an individual's right to be secure against unreasonable search and seizure is inadmissible in a criminal proceeding - little else is agreed upon. The precise date of the exclusionary rule's inception is uncertain, but it has been applied by the judiciary for over eight decades. While the Supreme Court has emphasized that the rule is a "judicially created remedy," and not a "personal constitutional right," this characterization provokes argument as …

The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman

Michigan Law Review

The constitutional law of state criminal procedure was born between the First and Second World Wars. Prior to 1920, the Supreme Court had upset the results of the state criminal justice system in just a handful of cases, all involving race discrimination in jury selection. By 1940, however, the Court had interpreted the Due Process Clause of the Fourteenth Amendment to invalidate state criminal convictions in a wide variety of settings: mob-dominated trials, violation of the right to counsel, coerced confessions, financially-biased judges, and knowingly perjured testimony by prosecution witnesses. In addition, the Court had broadened its earlier decisions forbidding …

Is Payne Defensible?: The Constitutionality Of Admitting Victim-Impact Evidence At Capital Sentencing Hearings, Joshua D. Greenberg

Indiana Law Journal

No abstract provided.

The Supreme Court's Backwards Proportionaility Jurisprudence: Comparing Judicial Review Of Excessive Criminal Punishments And Excessive Punitive Damages Award, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Available Post-Trial Relief After A State Criminal Conviction When Newly Discovered Evidence Establishes "Actual Innocence", Josephine Linker Hart, Guilford M. Dudley

University of Arkansas at Little Rock Law Review

No abstract provided.

Challenges For Cause, Stand-Asides, And Peremptory Challenges In The Nineteenth Century, R. Blake Brown

Osgoode Hall Law Journal

This article examines the substantial differences that emerged during the nineteenth century between the law of England, the United States, and Canada regarding challenges for cause, stand-asides, and peremptory challenges in the jury selection process. The author argues that these differences stemmed from the unique social conditions of each country. The emergence of legal formalism-with its emphasis on certainty and predictability in the law-affected the development of jury challenges, though the result of formalist thinking had very different effects in all three jurisdictions. In addition, Canadian law regarding jury challenges reveals the influence of both American and English legal trends.

Harmonic Convergence? Constitutional Criminal Procedure In An International Context, Diane Marie Amann

Scholarly Works

Throughout the world, a trend toward a shared - a constitutional - criminal procedure may be detected. It is evident in common-law, civil-law, and mixed systems: individual states like China adopt laws promising once-alien concepts like a presumption of innocence, even as supranational bodies like the International Tribunal for the former Yugoslavia debate how to adapt certain norms to a hybrid structure. Some have suggested that such developments may herald a harmonic convergence of criminal procedure rules. This Article examines the likelihood of such a convergence. It establishes as a keynote around which harmony may develop the model of constitutional …

Constitutional Criminal Procedure, James P. Fleissner, Amy C. Reeder

Mercer Law Review

The field known as "constitutional criminal procedure" is one of the most dynamic branches of constitutional interpretation. Because most of the guarantees of the Fourth, Fifth, and Sixth Amendments have been incorporated into the Due Process Clause of the Fourteenth Amendment, the decisions of the United States Supreme Court interpreting the Bill of Rights have the effect of creating national minimum standards for both the federal and state criminal justice systems. Because every year there are many significant decisions in the field of constitutional criminal procedure, practitioners need to keep abreast of breaking developments. Of course, the Supreme Court decides …

A Legal And Psychological Critique Of The Present Approach To The Assessment Of The Competence Of Child Witnesses, Nicholas Bala, Kang Lee, Rod Lindsay, Victoria Talwar

Osgoode Hall Law Journal

The Canada Evidence Act requires an inquiry to determine whether a child has the requisite moral and intellectual capacity to testify. Caselaw suggests that a child must demonstrate an understanding of abstract concepts like "truth" and "promise" to be competent to testify. This article reports on a survey of Ontario justice system professionals, revealing significant variation in how judges conduct competency inquiries. Children are often asked about religious beliefs and practices, and are frequently asked developmentally inappropriate questions. The authors also report on their experimental research which indicates that children's ability to explain such abstract concepts as "truth," "lie," and …

United States V. Dickerson: The Beginning Of The End For Miranda, James R. O'Neill

Mercer Law Review

In United States v. Dickerson, the Fourth Circuit held that the admissibility of a confession in federal courts is determined by 18 U.S.C. § 3501, not the rule announced by the Supreme Court in Miranda v. Arizona. Accordingly, the Fourth Circuit concluded, pursuant to the statute, that admissibility of a confession depends upon whether or not it is voluntary

Harmonic Convergence? Constitutional Criminal Procedure In An International Context, Diane Marie Amann

Indiana Law Journal

No abstract provided.

Victimless Crime: A Comparison Of Public Offense Ratings Of Misdemeanor Offenses And Virginia Sentencing Guidelines, Theresa M. Dutton

Sociology & Criminal Justice Theses & Dissertations

This study was designed to explore the hypothesized gap between what state guidelines on criminal sanctioning recommend for misdemeanor offenses, and what the public perceives· as just punishment for these offenses. The research also addresses the issue of victimless crime. In this regard it was additionally hypothesized that there exists a significant difference in public opinion towards sentencing those crimes that specifically do not have a victim, with those that do.

The design of this study is based on one conducted by Peter Rossi and Richard Berk (Rossi and Berk 1997). For this study, a sample of students attending college …

Holloway V. United States: Conditional V. Unconditional Intent To Kill, Michael Douglas Owens

Mercer Law Review

In Holloway v. United States, the United States Supreme Court held that the "intent to kill" element in the federal cajacking statute was satisfied by a mere conditional intent to kill. The Court reasoned that a common-sense reading of the statute indicated Congress's attempt to include the mens rea of both unconditional and conditional intent.

Is Relevant Conduct Relevant - Reconsidering The Guidelines Approach To Real Offense Sentencing, David Yellen

Articles

No abstract provided.

Justice At The Margins: Equitable Tolling Of Washington's Deadline For Filing Collateral Attacks On Criminal Judgments, Mark A. Wilner

Washington Law Review

RCW 10.73.090 establishes a one-year deadline for appealing a final criminal judgment in Washington State. This Comment argues that this one-year deadline should be subject to the doctrine of equitable tolling, which can prevent a statute of limitation from expiring when extraordinary circumstances preclude timely filing. After examining the text, legislative history, structure, purpose, and policy implications of RCW 10.73.090, this Comment demonstrates that the one-year deadline does not operate as a jurisdictional bar, which would revoke judicial power to hear a postconviction appeal after one year under any circumstances, but instead acts as a statute of limitation subject to …

The Criminal Defense Lawyer's Fiduciary Duty To Clients With Mental Disability, Christopher Slobogin, Amy R. Mashburn

UF Law Faculty Publications

This Article argues that the defense attorney has a multifaceted fiduciary duty toward the client with mental disability. That duty requires, first and foremost, respect for the autonomy of the client. The lawyer shows that respect not only by heeding the wishes of the competent client but by refusing to heed the wishes of the incompetent client. A coherent approach to the competency construct is therefore important. Following the lead of Professor Bonnie, this Article has broken competency into two components: assistance competency and decisional competency. It has defined the former concept in traditional terms, as an understanding of the …

Smith V. Robbins 120 S. Ct. 746 (2000)

Capital Defense Journal

No abstract provided.

United States V. Singleton And The Witness Gratuity Statute: What Is The Best Approach For The Criminal Justice System?, Melissa W. Rawlinson

Brigham Young University Journal of Public Law

No abstract provided.

Measuring Culpability By Measuring Drugs? Three Reasons To Re-Evaluate The Rockefeller Drug Laws, Susan Herman

Faculty Scholarship

No abstract provided.

Coercion, Pop-Psychology, And Judicial Moralizing: Some Proposals For Curbing Judicial Abuse Of Probation Conditions, Andrew Horwitz

Law Faculty Scholarship

No abstract provided.

Newly Available, Not Newly Discovered, Penny J. White

The Journal of Appellate Practice and Process

Advances in science have made it possible to discover new evidence. This newly discovered evidence is not always admissible as evidence. This essay suggests methods by which appellate courts may approach a balance between the rigid application of limitation periods in serious criminal cases and admitting evidence that proves innocence.

Expedited Review Of Capital Post-Conviction Claims: Idaho’S Flawed Process, Joan M. Fisher

The Journal of Appellate Practice and Process

The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) is a federal attempt to expedite litigation in capital cases. Many states adopted unitary appeal systems in response to the AEDPA. Unitary systems consolidate the direct appeal and state post-conviction process. In Idaho, Idaho Code § 19-4908 establishes special proceedings for capital cases including a forty-two day limitation to present any claims. This article makes a critical analysis of Idaho’s capital post-conviction procedure.

Completing The Sentencing Revolution: Reconsidering Sentencing Procedure In The Guidelines Era, Frank O. Bowman Iii

Faculty Publications

The central innovation of the guidelines sentencing revolution has been the creation of a regime in which facts other than those required for conviction have necessary consequences at sentencing. In days of yore, judges mulling a sentence were entitled to receive information from virtually any source on virtually any subject, but they were never obliged to pass public judgment on the truth or falsity of what they heard because no finding of fact could constrain their discretion to set a sentence anywhere within the boundaries set by statutory maxima and minima. No more. The project of the original United States …

Prosecuting Violence/Reconstructing Community, Anthony V. Alfieri

Articles

For two centuries, the private violence of American history has paraded into courts for public trial. Often dramatized by the spectacle of rape and murder, the public trials of private violence increasingly are seen to decide the fates of both the accused and the victim of crime. The fate of community, whether the community of the victim, the accused, or the public, seems at first blush untouched by such trials. Like victims and their families, however, communities struck by violence suffer profound loss. That loss is expressed in the destruction of public discourse, reason, and citizenship. This public ruin is …

The Finality Of Judgment And Sentence Prerequisite In The United States-Peru Bilateral Prisoner Transfer Treaty: Calling Congress And The President To Reform And Justifying Jurisdiction Of The Inter-American Human Rights Commission And Court, 15 Am. U. Int'l L. Rev. 1071 (2000), Ralph Ruebner, Lisa Carroll

UIC Law Open Access Faculty Scholarship

No abstract provided.

Is “Relevant Conduct” Relevant? Reconsidering The Guidelines’ Approach To Real Offense Sentencing, David N. Yellen

Faculty Publications & Other Works

No abstract provided.

The Adversity Of Race And Place: Fourth Amendment Jurisprudence In Illinois V. Wardlow, 528 S. Ct. 673 (2000), Adam B. Wolf

Michigan Journal of Race and Law

This Case Note lays out Wardlow's pertinent facts, describes the decisions of the Court and lower courts, and then analyzes the ramifications of the Court's holding. In particular, this Case Note argues that the Court's ruling recognizes substantially less Fourth Amendment protections for people of color and indigent citizens than for wealthy Caucasians. This perpetuates a cycle of humiliating experiences, as well as fear and mistrust of the police by many poor people of color.

Structuring Criminal Codes To Perform Their Function, Paul H. Robinson

All Faculty Scholarship

This paper argues that criminal codes have two distinct functions. First, a code must ex ante announce the rules of conduct. Second, it must set out the principles of for adjudicating, ex post, violations of those rules. These two functions often are in tension with one another. Each calls for a different kind of code, addressed to a different audience, with different objectives: To be effective ex ante, the rules of conduct must be formulated in a way that they will be understood, remembered, and able to be applied in daily life by lay persons with a wide range of …

The Victim's Rights Amendment: A Prosecutor's, And Surprisingly, A Defense Attorney's Support In Sentencing, Steven I. Platt, Jeannie Pittillo Kauffman

Maryland Law Review

No abstract provided.