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Full-Text Articles in Law
Frankly, It's A Mess: Requiring Courts To Transparently "Redline" Affidavits In The Face Of Franks Challenges, Diana Bibb
William & Mary Bill of Rights Journal
Part I provides a brief overview of the Fourth Amendment, probable cause, and the exclusionary rule. Part II discusses Franks v. Delaware, the development of the challenge’s framework, and subsequent expansions to the doctrine made by the lower courts. Next, Part III argues that, despite the aforementioned expansions, courts have consistently weakened Franks. Notably, the Supreme Court refuses to consider Franks issues, including the multitude of splits over which standard of review is applicable. Moreover, some circuits have developed their own minute rules that have chiseled away at the effectiveness of a Franks challenge. Part IV proposes that …
A Comparative Examination Of Police Interrogation Of Criminal Suspects In Australia, Canada, England And Wales, New Zealand, And The United States, Carol A. Brook, Bruno Fiannaca, David Harvey, Paul Marcus, Renee Pomerance, Paul Roberts
A Comparative Examination Of Police Interrogation Of Criminal Suspects In Australia, Canada, England And Wales, New Zealand, And The United States, Carol A. Brook, Bruno Fiannaca, David Harvey, Paul Marcus, Renee Pomerance, Paul Roberts
William & Mary Bill of Rights Journal
The interrogation process is central to the investigation and resolution of criminal matters throughout the world. It is fundamental to a comprehensive understanding of comparative criminal procedure to study and appreciate the different approaches to the interrogation process in different nations. This Article developed through a series of conversations between six international criminal justice professionals— practicing attorneys, scholars, and judges—regarding the interrogation practices and rules in their respective countries. Providing a comparative look at this important area, this Article examines the applicable practices and procedures in the common law nations of Australia, Canada, England and Wales, New Zealand, and the …
Second Guessing Double Jeopardy: The Stare Decisis Factors As Proxy Tools For Original Correctness, Justin W. Aimonetti
Second Guessing Double Jeopardy: The Stare Decisis Factors As Proxy Tools For Original Correctness, Justin W. Aimonetti
William & Mary Law Review Online
In Gamble v. United States, the Supreme Court reaffirmed the 170-year-old dual-sovereignty doctrine. That doctrine permits both the federal and state governments—as “separate sovereigns”—to each prosecute a defendant for the same offense. Justice Thomas concurred with the majority opinion in Gamble, but wrote separately to reject the traditional stare decisis formulation. In particular, the factors the majority used to evaluate stare decisis, in his view, amount to nothing more than marbles placed subjectively on either side of the stare decisis balancing scale. He would have preferred, instead, an inquiry into whether the precedent was demonstrably erroneous as an original matter, …
Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes
Justice Begins Before Trial: How To Nudge Inaccurate Pretrial Rulings Using Behavioral Law And Economic Theory And Uniform Commercial Laws, Michael Gentithes
William & Mary Law Review
Injustice in criminal cases often takes root before trial begins. Overworked criminal judges must resolve difficult pretrial evidentiary issues that determine the charges the State will take to trial and the range of sentences the defendant will face. Wrong decisions on these issues often lead to wrongful convictions. As behavioral law and economic theory suggests, judges who are cognitively busy and receive little feedback on these topics from appellate courts rely upon intuition, rather than deliberative reasoning, to resolve these questions. This leads to inconsistent rulings, which prosecutors exploit to expand the scope of evidentiary exceptions that almost always disfavor …
The Haves Of Procedure, Ion Meyn
The Haves Of Procedure, Ion Meyn
William & Mary Law Review
In litigation, “haves” and “have-nots” battle over what procedures should govern. Yet, much greater hostilities have been avoided—a war between the “haves” themselves. “Criminal haves” (prosecutors) and “civil haves” (institutional players) litigate in separate territories and under different sets of rules. This is good, for them, because they have incompatible objectives. This Article contends that protecting the “haves” from each other has profoundly influenced the development of procedure in the United States.
The “haves” reap significant benefits in being insulated from each other as they seek rules responsive to their unique preferences. A “criminal have” seeks easy access to the …
Common Law Evidence And The Common Law Of Human Rights: Towards A Harmonic Convergence?, John D. Jackson
Common Law Evidence And The Common Law Of Human Rights: Towards A Harmonic Convergence?, John D. Jackson
William & Mary Bill of Rights Journal
This Article considers the impact which European Human Rights Law has made upon the common law rules of evidence with reference to the approach the European Court of Human Rights (ECtHR) has adopted towards exclusionary rules of evidence. Particular attention will be given to rules that have been developed by the ECtHR in relation to the right to counsel during police questioning (the so-called “Salduz” doctrine) and the right to examine witnesses (the so-called “sole or decisive” evidence rule). The Article argues that the effect of these rules has encouraged common law judges to engage more holistically with the effect …
The Fourth Amendment Disclosure Doctrines, Monu Bedi
The Fourth Amendment Disclosure Doctrines, Monu Bedi
William & Mary Bill of Rights Journal
The third party and public disclosure doctrines (together the “disclosure doctrines”) are long-standing hurdles to Fourth Amendment protection. These doctrines have become increasingly relevant to assessing the government’s use of recent technologies such as data mining, drone surveillance, and cell site location data. It is surprising then that both the Supreme Court and scholars, at times, have associated them together as expressing one principle. It turns out that each relies on unique foundational triggers and does not stand or fall with the other. This Article tackles this issue and provides a comprehensive topology for analyzing the respective contours of each …
Reducing The Dangers Of Future Dangerousness Testimony: Applying The Federal Rules Of Evidence To Capital Sentencing, Jaymes Fairfax-Columbo, David Dematteo
Reducing The Dangers Of Future Dangerousness Testimony: Applying The Federal Rules Of Evidence To Capital Sentencing, Jaymes Fairfax-Columbo, David Dematteo
William & Mary Bill of Rights Journal
The United States Supreme Court has long held that the death penalty cannot be imposed arbitrarily, and that during sentencing in capital cases, jurors must be provided with guidelines to assist them in narrowing down the class of individuals for whom the death penalty is appropriate. Typically, this is accomplished through the presentation of aggravating and mitigating evidence. One aggravating factor is a capital offender’s future dangerousness, or the likelihood that the individual will engage in violent institutional misconduct while in prison. Future dangerousness may be assessed using a variety of measures; Hare’s Psychopathy Checklist-Revised (PCL-R), a measure of personality …
Designing Plea Bargaining From The Ground Up: Accuracy And Fairness Without Trials As Backstops, Stephanos Bibas
Designing Plea Bargaining From The Ground Up: Accuracy And Fairness Without Trials As Backstops, Stephanos Bibas
William & Mary Law Review
American criminal procedure developed on the assumption that grand juries and petit jury trials were the ultimate safeguards of fair procedures and accurate outcomes.But nowthat plea bargaining has all but supplanted juries, we need to think through what safeguards our plea-bargaining systemshould be built around. This Symposium Article sketches out principles for redesigning our plea-bargaining system from the ground up around safeguards. Part I explores the causes of factual, moral, and legal inaccuracies in guilty pleas. To prevent and remedy these inaccuracies, it proposes a combination of quasi-inquisitorial safeguards, more vigorous criminal defense, and better normative evaluation of charges, pleas, …
Plea Bargaining And The Substantive And Procedural Goals Of Criminal Justice: From Retribution And Adversarialism To Preventive Justice And Hybrid-Inquisitorialism, Christopher Slobogin
Plea Bargaining And The Substantive And Procedural Goals Of Criminal Justice: From Retribution And Adversarialism To Preventive Justice And Hybrid-Inquisitorialism, Christopher Slobogin
William & Mary Law Review
Plea bargaining and guilty pleas are intrinsically incompatible with themost commonly-accepted substantive and procedural premises of American criminal justice: Plea bargaining routinely results in punishment disproportionate to desert, and guilty pleas are an insult to procedural due process. This Article argues that the only way to align plea bargaining with our criminal justice premises is to change those premises. It imagines a system in which retribution is no longer the lodestar of punishment, and in which party-control of the process is no longer the desideratum of adjudication. If, instead, plea bargaining were seen as a mechanism for implementing a sentencing …
Judicial Power To Regulate Plea Bargaining, Darryl K. Brown
Judicial Power To Regulate Plea Bargaining, Darryl K. Brown
William & Mary Law Review
Plea bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated. In the wake of Santobello v. New York (1971), lower courts crafted Due Process doctrines through which they supervised the fairness of some aspects of the plea bargaining process. Within a decade, however, U.S. Supreme Court decisions began to shut down any constitutional basis for judicial supervision of plea negotiations or agreements. Those decisions rested primarily on two claims: separation of powers and the practical costs of regulating plea bargaining in busy criminal justice systems. …
Why Plea Bargains Are Not Confessions, Brandon L. Garrett
Why Plea Bargains Are Not Confessions, Brandon L. Garrett
William & Mary Law Review
Is a plea bargain a type of confession? Plea bargaining is often justified as, at its core, a process involving in-court confession. The U.S. Supreme Courts early decisions approved plea bargains as something more than a confession which admits that the accused did various acts. I argue in this Article that plea bargains are not confessionsthey do not even typically involve detailed admissions of guilt. The defendant generally admits to acts satisfying elements of the crimea legally sufficient admission to be sure, but often not under oath, and often not supported by any extensive factual record. Because plea bargains typically …
Pleading Guilty Without Client Consent, Gabriel J. Chin
Pleading Guilty Without Client Consent, Gabriel J. Chin
William & Mary Law Review
In some cases, lawyers are, and should be, permitted to conclude plea bargains to which their clients have not agreed. Because clients bear the consequences of a conviction, ordinarily, clients should choose between a plea and the possibility of acquittal at trial. Further, clients have the right to decide that even though conviction is practically certain, moral or political reasons warrant insistence on a trial. But some clients have the goal of minimizing incarceration, have been offered reasonable pleas, face substantially greater sentences if convicted after trial, have no plausible ground for acquittal and nevertheless decline to plead guilty. They …
Guilt, Innocence, And Due Process Of Plea Bargaining, Donald A. Dripps
Guilt, Innocence, And Due Process Of Plea Bargaining, Donald A. Dripps
William & Mary Law Review
No abstract provided.
Plea Bargaining's Baselines, Josh Bowers
Plea Bargaining's Baselines, Josh Bowers
William & Mary Law Review
In this Symposium Article, I examine the Courts unwillingness to take seriously the issue of coercion as it applies to plea bargaining practice. It is not so much that the Court has ignored coercion entirely. Rather, it has framed the inquiry in a legalisticmanner that has made immaterial the kinds of considerations we might think most relevant to the evaluation. The Court has refused to ask qualitative questions about felt pressure, prosecutorial motivation, or the risk or reality of excessive punishment. All that matters is legal permissibility. A prosecutor may compel a defendant to plead guilty as long as she …
A Comparative Look At Plea Bargaining In Australia, Canada, England, New Zealand, And The United States, Carol A. Brook, Bruno Fiannaca, David Harvey, Paul Marcus, Jenny Mcewan, Renee Pomerance
A Comparative Look At Plea Bargaining In Australia, Canada, England, New Zealand, And The United States, Carol A. Brook, Bruno Fiannaca, David Harvey, Paul Marcus, Jenny Mcewan, Renee Pomerance
William & Mary Law Review
In a world where the vast majority of criminal cases are resolved through some means other than the popularly depicted criminal trial, it is fundamental to a comprehensive understanding of comparative criminal procedure to study and appreciate the different mechanisms for criminal case resolution in different nations. This Article developed through a series of conversations (and ultimately a panel discussion) between six international criminal justice professionals - practicing attorneys, scholars, and judges - regarding the nature and effects of plea bargaining (and its comparative substitutes) in their respective countries. Providing a comparative look at different mechanisms for criminal case resolution, …
The Prosecutor's Turn, I. Bennett Capers
The Prosecutor's Turn, I. Bennett Capers
William & Mary Law Review
No abstract provided.
Thinking Outside The Jury Box: Deploying The Grand Jury In The Guilty Plea Process, Roger A. Fairfax Jr.
Thinking Outside The Jury Box: Deploying The Grand Jury In The Guilty Plea Process, Roger A. Fairfax Jr.
William & Mary Law Review
No abstract provided.
Training For Bargaining, Jenny Roberts, Ronald F. Wright
Training For Bargaining, Jenny Roberts, Ronald F. Wright
William & Mary Law Review
While plea bargaining dominates the practice of criminal law, preparation for trial remains central to defense attorneys training. Negotiation is still peripheral to that training. Defense lawyers enter practice with little exposure to negotiation techniques and strategies in the plea bargaining context, the most significant skills they will use every day.
Empirical research on plea negotiations has concentrated on outcomes of negotiations rather than the process itself. Our multiphase field study examines the negotiation techniques that attorneys use during plea bargaining as well as their preparation and training for negotiation. This Article explores the data on the training aspects of …
Plea Bargaining And Disclosure In Germany And The United States: Comparative Lessons, Jenia I. Turner
Plea Bargaining And Disclosure In Germany And The United States: Comparative Lessons, Jenia I. Turner
William & Mary Law Review
This Article analyzes recent trends in plea bargaining and disclosure of evidence in Germany and the United States. Over the last two decades, a number of U.S. jurisdictions have adopted rules requiring broader and earlier discovery in criminal cases. This development reflects a growing consensus that, in a system that resolves most of its cases through guilty pleas, early and extensive disclosure is necessary to ensure fair and informed outcomes.
The introduction of broader discovery in criminal cases in the United States aligns American rulesmore closely with longstanding German rules on access to the investigative file. At the same time, …
Charging On The Margin, Paul T. Crane
Charging On The Margin, Paul T. Crane
William & Mary Law Review
The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions. In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses penalties such as requirements to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation. Although there is a wealth of scholarship studying the effect this development has on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives. This Article starts to remedy that gap by exploring the influence that collateral consequences exert …
Confronting Cops In Immigration Court, Mary Holper
Confronting Cops In Immigration Court, Mary Holper
William & Mary Bill of Rights Journal
Part I of the Article outlines the police report problem by discussing the four situations in which police reports are used in immigration court, why police reports are unreliable, and the scope of the problem. Part II discusses criminal laws treatment of police reports, focusing on the Confrontation Clause of the Sixth Amendment, which provides the constitutional justification for excluding police reports in criminal cases. Part III discusses the use of hearsay evidence in immigration cases, where hearsay is allowed due to the characterization of removal proceedings as civil, not criminal. While there has been a trend to reject unreliable …
Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind
Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind
William & Mary Law Review
It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between law-enforcement investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited resources to develop countermeasures, law enforcement officers will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game-theoretic model that shows that when law-enforcement investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale …
Windsor Beyond Marriage: Due Process, Equality & Undocumented Immigration, Anthony O'Rourke
Windsor Beyond Marriage: Due Process, Equality & Undocumented Immigration, Anthony O'Rourke
William & Mary Law Review
The Supreme Court’s recent decision in United States v. Windsor, invalidating part of the federal Defense of Marriage Act, presents a significant interpretive challenge. Early commentators have criticized the majority opinion’s lack of analytical rigor, and expressed doubt that Windsor can serve as a meaningful precedent with respect to constitutional questions outside the area of same-sex marriage. This Article offers a more rehabilitative reading of Windsor and shows how the decision can be used to analyze a significant constitutional question concerning the use of state criminal procedure to regulate immigration.
From Windsor’s holding, the Article distills two concrete doctrinal propositions …
Grand Jury Innovation: Toward A Functional Makeover Of The Ancient Bulwark Of Liberty, Roger A. Fairfax Jr.
Grand Jury Innovation: Toward A Functional Makeover Of The Ancient Bulwark Of Liberty, Roger A. Fairfax Jr.
William & Mary Bill of Rights Journal
No abstract provided.
Curb Your Ecoterrorism: Identifying The Nexus Between State Criminalization Of Ecoterror And Environmental Protection Policy, Paul J. Karasick
Curb Your Ecoterrorism: Identifying The Nexus Between State Criminalization Of Ecoterror And Environmental Protection Policy, Paul J. Karasick
William & Mary Environmental Law and Policy Review
No abstract provided.
Expanding The Arsenal For Sentencing Environmental Crimes: Would Therapeutic Jurisprudence And Restorative Justice Work?, Carrie C. Boyd
Expanding The Arsenal For Sentencing Environmental Crimes: Would Therapeutic Jurisprudence And Restorative Justice Work?, Carrie C. Boyd
William & Mary Environmental Law and Policy Review
No abstract provided.
The Jurisprudence Of Punishment, Kyron Huigens
The Jurisprudence Of Punishment, Kyron Huigens
William & Mary Law Review
No abstract provided.
All Men Are (Or Should Be) Created Equal: An Argument Against The Use Of The Cultural Defense In A Post-Booker World, Elizabeth Martin
All Men Are (Or Should Be) Created Equal: An Argument Against The Use Of The Cultural Defense In A Post-Booker World, Elizabeth Martin
William & Mary Bill of Rights Journal
No abstract provided.
Terrorism And The New Criminal Process, John T. Parry
Terrorism And The New Criminal Process, John T. Parry
William & Mary Bill of Rights Journal
No abstract provided.