Digital Commons Network^™

The Linchpin Of Identification Evidence: The Unreliability Of Eyewitnesses And The Need For Reform In West Virginia, Jared T. Dotson

West Virginia Law Review

No abstract provided.

A Spectrum Of International Criminal Procedure: Shifting Patterns Of Power Distribution In International Criminal Courts And Tribunals, Jessica Peake

Pace International Law Review

Using the pure adversarial model expounded in part I (a) as the baseline for analysis, Parts II, III and IV of this article will explore the procedural evolution that has taken place at the International Criminal Tribunal for the Former Yugoslavia (II), the International Criminal Court (III) and the Extraordinary Chambers in the Courts of Cambodia (IV). Part V will then plot the structural and procedural shifts that have taken place at those courts onto the spectrum of procedure identified in part I (c), before concluding, in Part VI, with what these shifts teach us about the convergence of adversarial …

A House Divided: When State And Lower Federal Courts Disagree On Federal Constitutional Rights, Wayne A. Logan

Scholarly Publications

Despite their many differences, Americans have long been bound by a shared sense of federal constitutional commonality. As this article demonstrates, however, federal constitutional rights do in fact often differ — even within individual states — as a result of state and lower federal court concurrent authority to interpret the Constitution and the lack of any requirement that they defer to one another’s positions. The article provides the first in-depth examination of intra-state, state-federal court conflicts on federal constitutional law and the problems that they create. Focusing on criminal procedure doctrine in particular, with its unique impact on individual liberty …

Proportionality, Discretion, And The Roles Of Judges And Prosecutors At Sentencing, Palma Paciocco

Articles & Book Chapters

The Supreme Court of Canada recently held that prosecutors are not constitutionally obligated to consider the principle of proportionality when exercising their discretion in a manner that narrows the range of available sentences: since only judges are responsible for sentencing, they alone are constitutionally required to ensure proportionality. When mandatory minimum sentences apply, however, judges have limited sentencing discretion and may be unable to achieve proportionality. If the Court takes the principle of proportionality seriously, and if it insists that only judges are constitutionally bound to enforce that principle, it must therefore create new tools whereby judges can avoid imposing …

Encouraging Victims: Responding To A Recent Study Of Battered Women Who Commit Crimes, Andrea L. Dennis, Carol E. Jordan

Nevada Law Journal

No abstract provided.

The Future Of Sex Offense Courts: How Expanding Specialized Sex Offense Courts Can Help Reduce Recidivism And Improve Victim Reporting, Catharine Richmond, Melissa Richmond

Catharine Richmond

Specialty sex offense courts are a nascent judicial innovation that seek to improve general public safety through reducing recidivism. Decreased recidivism results from swifter, personalized, experienced, and consistent judicial action that encourages sex offenders to take more responsibility and seek rehabilitative assistance. In these specialized courts, communities of stakeholders work collaboratively to prevent future crime. Although somewhat counterintuitive, specialty courts that offer such intensive and specific attention are often more cost effective and efficient than their traditional counterparts. This Note argues that sex offense courts should be expanded beyond the handful of jurisdictions where they currently exist, not only to …

Teaching The Wire: Integrating Capstone Policy Content Into The Criminal Law Curriculum, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

When I first proposed teaching a seminar on The Wire at the George Washington University Law School in 2010, I encountered very disparate reactions. Those unfamiliar with the show generally wondered whether the law school curriculum was any place for a course with the name of a popular television drama in the title. Those who had heard glowing things about, but had not seen, The Wire typically professed their intention to watch the show but shared the skepticism of the former group on its suitability as the focus of a law school course. Finally, those who had viewed the series …

Teaching “The Wire”: Crime, Evidence, And Kids, Andrea L. Dennis

Scholarly Works

I have a confession: I have only watched Season 1 of The Wire, and it has been many years since I did that. Thus, both my knowledge and pedagogical use of the show are limited. What explanation can I offer for my failings? I am a Maryland native with family who resides in Baltimore City, or Charm City as it is affectionately called. I worked for several years as an assistant federal public defender in Baltimore City. Over time, I have seen the city evolve, and I have seen it chew up and spit out many good people and some …

Juvenile Competency Adjudication In California Criminal Court, Michael W. Hanley

Michael W Hanley

Legal issues are examined vis-à-vis an empirical case study of a criminal judicial proceeding where an alleged juvenile offender was charged with serious crimes in an adult court venue. The issue litigated before a 12-member jury was not the substantive merits of guilt or innocence of the alleged criminal conduct, but whether the juvenile offender was statutorily and constitutionally competent to stand trial. The following is a succinct account of the procedural and substantive constitutional and statutory rules attributed to legal competency to stand trial and how they were recognized and applied in the government’s case against an alleged juvenile …

Systemic Barriers To Effective Assistance Of Counsel In Plea Bargaining, Rodney J. Uphoff, Peter A. Joy

Faculty Publications

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process . At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign …

No Easy Solutions To The Problem Of Criminal Mega-Trials, Brendan Judge

Notre Dame Law Review

No abstract provided.

“Far From The Turbulent Space”: Considering The Adequacy Of Counsel In The Representation Of Individuals Accused Of Being Sexually Violent Predators, Michael L. Perlin, Heather Ellis Cucolo

Michael L Perlin

Abstract:

For the past thirty years, the US Supreme Court's standard of Strickland v. Washington has governed the question of adequacy of counsel in criminal trials. There, in a Sixth Amendment analysis, the Supreme Court acknowledged that simply having a lawyer assigned to a defendant was not constitutionally adequate, but that that lawyer must provide "effective assistance of counsel," effectiveness being defined, pallidly, as requiring simply that counsel's efforts be “reasonable” under the circumstances. The benchmark for judging an ineffectiveness claim is simply “whether counsel’s conduct so undermined the proper function of the adversarial process that the trial court cannot …

Neurotechnologies At The Intersection Of Criminal Procedure And Constitutional Law, Amanda C. Pustilnik

Amanda C Pustilnik

The rapid development of neurotechnologies poses novel constitutional issues for criminal law and criminal procedure. These technologies can identify directly from brain waves whether a person is familiar with a stimulus like a face or a weapon, can model blood flow in the brain to indicate whether a person is lying, and can even interfere with brain processes themselves via high-powered magnets to cause a person to be less likely to lie to an investigator. These technologies implicate the constitutional privilege against compelled, self-incriminating speech under the Fifth Amendment and the right to be free of unreasonable search and seizure …

Furman, After Four Decades, J. Thomas Sullivan

University of Massachusetts Law Review

Problems of racial discrimination in the imposition of capital sentences, disclosure of misconduct by prosecutors and police, inconsistency in the quality of defense afforded capital defendants, exoneration of death row inmates due to newly available DNA testing, and, most recently controversies surrounding the potential for cruelty in the execution process itself continue to complicate views about the morality, legality, and practicality of reliance on capital punishment to address even the most heinous of homicide offenses. Despite repeated efforts by the Supreme Court to craft a capital sentencing framework that ensures that death sentences be imposed fairly in light of the …

Legislator Judges: The Warren Court And Justices' Use Of State Or International Policies In Criminal Procedure Cases, John R. Hermann

Political Science Faculty Research

The Warren Court went to great lengths to expand criminal defendants' rights, and in doing so it frequently relied on state majoritarian institutions' policies or international norms to accomplish its goals. The Court and justices were almost twice as likely to use state laws than international policies in their reasoning. The Court was also almost two-and-a-half times more likely to use state or international policies in its rationale when deciding in favor of the criminal defendant in relation to the state's interest.

The Perverse Effects Of Efficiency In Criminal Process, Darryl K. Brown

Darryl K. Brown

The need for greater efficiency in legal process is an undisputed premise of modern policy, and efficiency’s virtues hardly merit debate, notably by the U.S. Supreme Court. A central part of the story of modern adjudication is the steady gains in case processing efficiency. This, above all else, explains the “vanishing trial” and its replacement by civil settlement and, in criminal courts, by plea bar-gaining.

Defining efficiency in any context, however, is a more complicated endeavor than courts, policymakers, and many commentators commonly acknowledge. It requires first defining ends and means, and even whether a given practice is an end …

Special Administrative Measures: An Example Of Counterterror Excesses And Their Roots In U.S. Criminal Justice, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

This article examines the creation and implementation of pretrial Special Administrative Measures [SAMs], a version of pretrial solitary confinement now used most often to confine terror suspects in the federal criminal justice system. Through an in-depth archival study, this article brings attention to the importance of 20th-century criminal justice trends to the 21st-century response to the threat of terrorism, including an increasingly preventive focus and decreasing judicial checks on executive action. The findings suggest that practices believed to be excessive responses to the threat of terrorism are in fact a natural outgrowth of late modern criminal justice.

Democracy Enhancement In Criminal Law And Procedure, Janet Moore

Faculty Articles and Other Publications

There is a democracy deficit at the intersection of crime, race, and poverty. The causes and consequences of hyperincarceration disproportionately affect those least likely to mount an effective oppositional politics: poor people and people of color. This Article breaks new ground by arguing that the democracy deficit calls for a democracy-enhancing theory of criminal law and procedure that modifies traditional justifications of retributivism and deterrence by prioritizing self-governance. Part I contextualizes the argument within cyclical retrenchments in movements for racial and economic justice. Part II sketches the contours of a democracy-enhancing theory. Parts III and IV turn that theoretical lens …

The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber Is Sheep's Clothing, Mark A. Summers

Faculty Scholarship

No abstract provided.

Making Civil Immigration Detention “Civil,” And Examining The Emerging U.S. Civil Detention Paradigm, Mark Noferi

Mark L Noferi

In 2009, the Obama Administration began to reform its sprawling immigration detention system by asking the question, “How do we make civil detention civil?” Five years later, after opening an explicitly-named “civil detention center” in Texas to public criticism from both sides, the Administration’s efforts have stalled. But its reforms, even if fully implemented, would still resemble lower-security criminal jails.

This symposium article is the first to comprehensively examine the Administration’s efforts to implement “truly civil” immigration detention, through new standards, improved conditions, and greater oversight. It does so by undertaking the first descriptive comparison of the U.S.’s two largest …

“To Corral And Control”: Stop, Frisk, And The Geography Of Freedom, Anders Walker

All Faculty Scholarship

This article revisits the emergence of stop and frisk law in the 1960s to make three points. One, the impetus for formalizing police stops arose midst confusion generated by Mapp v. Ohio, the landmark Warren Court opinion incorporating the exclusionary rule to the states. Two, police over-reactions to Mapp intersected with fears of urban riots, leading to a formalization of stop and frisk rules that aimed at better containing inner city minority populations. Three, the heightened control of urban streets coupled with the heightened protection of the private home bore geographic implications, interiorizing liberty in ways that perpetuated a national …

Regulation 55 And The Rights Of The Accused At The International Criminal Court, Susana Sácouto, Katherine Cleary Thompson

Human Rights Brief

No abstract provided.

The Prosecutor’S Contribution To Wrongful Convictions, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

A prosecutor is viewed by the public as a powerful law enforcement official whose responsibility is to convict guilty people of crimes. But not everybody understands that a prosecutor’s function is not only to win convictions of law-breakers. A prosecutor is a quasi-judicial official who has a duty to promote justice to the entire community, including those people charged with crimes. Indeed, an overriding function of a prosecutor is to ensure that innocent people not get convicted and punished.

A prosecutor is constitutionally and ethically mandated to promote justice. The prosecutor is even considered a "Minister of Justice" who has …

The Constitutionality Of Negotiated Criminal Judgments In Germany, Thomas Weigend, Jenia I. Turner

Faculty Journal Articles and Book Chapters

In a long-awaited judgment, the German Constitutional Court in 2013 upheld the constitutionality of the 2009 German law authorizing the negotiation of criminal judgments between the court and the parties. In this Article, we provide background on recent developments in “plea bargaining” law and practice in Germany and offer a critique of the Court’s decision.

The Court attempted to rein in negotiated judgments by giving the statute a literal reading, emphasizing the limitations it places on negotiations, and strictly prohibiting any consensual disposition outside the statutory framework. The Court builds its judgment on the notion that the search for truth, …

Interstate Conflict And Cooperation In Criminal Cases: An American Perspective, Jenia I. Turner

Faculty Journal Articles and Book Chapters

Over the last decade, the European Union has adopted legislation that calls for the mutual recognition of arrest warrants, investigation orders, and penal judgments. These laws have aimed to strengthen the Union’s response to transnational crime, and EU policymakers are currently considering legislation to further harmonize the Union's law enforcement efforts. This Article compares these developments within the EU to the U.S. legal framework on mutual recognition in criminal matters. It examines the individual, state and systemic interests that U.S. state courts have considered in deciding whether to recognize other states' judgments, warrants, or investigative actions. These competing interests have …

Limits On The Search For Truth In Criminal Procedure: A Comparative View, Jenia I. Turner

Faculty Journal Articles and Book Chapters

Across diverse legal traditions, the search for truth is a basic function of the criminal process. Uncovering the truth about the charged crime is regarded as an essential precondition to achieving justice, enforcing criminal law, and legitimating the verdict. Yet while truthseeking is a broadly accepted goal in the criminal process, no system seeks the truth at all costs. The search for truth must on occasion yield to considerations related to efficiency, democratic participation, and protection of individual rights.

Different jurisdictions around the world show different preferences with respect to the tradeoffs between these values and the search for truth …

Lethal Injection Chaos Post-Baze, Deborah W. Denno

Faculty Scholarship

In 2008, with Baze v. Rees, the Supreme Court broke decades of silence regarding state execution methods to declare Kentucky’s lethal injection protocol constitutional, yet the opinion itself did not offer much guidance. In the six years after Baze, legal challenges to lethal injection soared as states scrambled to quell litigation by modifying their lethal injection protocols. My unprecedented study of over 300 cases citing Baze reveals that such modifications have occurred with alarming frequency. Moreover, even as states purportedly rely on the Baze opinion, they have changed their lethal injection protocols in inconsistent ways that bear little …

Gideon And The Effective Assistance Of Counsel: The Rhetoric And The Reality, David Rudovsky

All Faculty Scholarship

There is general agreement that the “promise” of Gideon has been systematically denied to large numbers of criminal defendants. In some cases, no counsel is provided; in many others, excessive caseloads and lack of resources prevent appointed counsel from providing effective assistance. Public defenders are forced to violate their ethical obligations by excessive case assignments that make it impossible for them to practice law in accordance with professional standards, to say nothing of Sixth Amendment commands. This worsening situation is caused by the failure of governmental bodies to properly fund indigent defense services and by the refusal of courts to …

Teaching “The Wire”: Crime, Evidence, And Kids, Andrea L. Dennis

Scholarly Works

I have a confession: I have only watched Season 1 of The Wire, and it has been many years since I did that. Thus, both my knowledge and pedagogical use of the show are limited. What explanation can I offer for my failings? I am a Maryland native with family who resides in Baltimore City, or Charm City as it is affectionately called. I worked for several years as an assistant federal public defender in Baltimore City. Over time, I have seen the city evolve, and I have seen it chew up and spit out many good people and some …

Wrongful Convictions, Policing, And The 'Wars On Crime And Drugs', Hannah Laqueur, Stephen Rushin, Jonathan Simon

Jonathan S Simon

Wrongful conviction ought to be an aberration for any system of criminal punishment tied to legal adjudication; certainly in a system such as we have in the United States, premised on the constitutional bedrock of requiring a jury to find guilt beyond a reasonable doubt (Sandstrom v. Montana). We suggest, however, that during the so-called wars on crime and drugs, wrongful convictions are no longer mere aberrations, any more than is holding to the end of hostilities captured members of an enemy army. Specifically, we hypothesize that these two "fronts" in two parallel national "wars" have transformed police practices in …