Law Commons^™

Truth, Justice, And The American Dilemma, Robert Batey

San Diego Law Review

McCleskey v. Kemp is without doubt a memorable case. Professor David C. Baldus and his colleagues, Charles A. Pulaski and George Woodworth, had produced a detailed statistical study of the operation of the death penalty in Georgia showing, in the words of the Supreme Court, that "black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty." McCleskey used this study to challenge his capital sentence under both the Equal Protection and Cruel and Unusual Punishment Clauses. Like any statistical proof, the Baldus study had been challenged on methodological grounds. The Supreme Court …

Smith V. Hooey: Underrated But Unfulfilled, Leslie W. Abramson

San Diego Law Review

The Sixth Amendment right to a speedy trial applies to prosecutions in the federal courts and to state prosecutions through the Fourteenth Amendment Due Process Clause. This constitutional right is probably the least favorite of the Bill of Rights, because it would satisfy most defendants if the government never - promptly or otherwise - disposed of their pending charges. One group of persons, though, who may regard the right to a speedy trial as important are convicted defendants currently serving sentences, but who have pending charges brought against them by other states or the federal government. For them, denying the …

The Supreme Court, Confessions, And Judicial Schizophrenia, Arnold H. Loewy

San Diego Law Review

Schizophrenia literally means "split mind." Consequently, it should not be too surprising that the United States Supreme Court, which is a theoretically continuing body with nine ever-changing minds, would say things in one year that seem schizophrenic when contrasted with last year's jurisprudence. Unfortunately, many of the inconsistent statements remain good law, and the result largely depends on which doctrine the Court chooses to trot out. In this essay, four such statements and the extent that each should be taken will seriously be examined.

Interrogating Terrorists: From Miranda Warnings To "Enhanced Interrogation Techniques", Ronald J. Rychlak

San Diego Law Review

An American citizen arrested within the United States would certainly have the right not to incriminate himself. A foreign national arrested outside of the U.S. would presumably not be protected. Other scenarios present more difficult issues. American courts, therefore, have to determine whether the Fifth Amendment's privilege against self-incrimination applies to non-American citizens, and whether an American police or military agent conducting an investigation abroad must provide some type of warnings before conducting an interrogation. The initial question would seem to be whether terrorist suspects are even entitled to the right protected by Miranda - the right not to incriminate …

Preventing False Confessions: Is Oickle Up To The Task?, Dale R. Ives

San Diego Law Review

In R. v. Oickle, the Supreme Court of Canada expressly stated that the Canadian confessions rule "should recognize which interrogation techniques commonly produce false confessions so as to avoid miscarriages of justice." As a result, the Court reformulated the traditional confessions rule in an attempt to better protect against false confessions. An obvious question is whether the Court succeeded in attaining this goal. An examination of the reformulated rule indicates that, viewed in the abstract and measured against the current state of knowledge on false confessions, the modern rule does offer considerable protection to innocent persons, but it also has …

Privacy As Struggle, Andrew R. Taslitz

San Diego Law Review

The title of this short essay is "Privacy as Struggle," a title meant in part to capture the Court's requirement of superhuman individual efforts to attain secrecy, that is, totally veiling one's activities from the state's prying eyes as an essential prerequisite to the existence of privacy, all too often at the expense of human relationships, interpersonal trust, and political voice. I want, therefore, to paint an apocalyptic vision of the Court's Fourth Amendment privacy jurisprudence, as the reader will no doubt have noticed I have already done in connection with my reading of Hoffa. I want to do so …

Toward A More Robust Right To Counsel Of Choice, Janet C. Hoeffel

San Diego Law Review

This Article takes its lead from the core principles of the right to counsel of choice expressed in Gonzalez-Lopez. These principles indicate that the right should include an indigent defendant's right to continue an attorney-client relationship established at some point in the past, and that, for both nonindigent and indigent defendants, the right to continue a trial with counsel of choice must be honored by trial courts unless it would be unethical or manifestly unjust to do so. This means that trial courts must almost always grant a continuance to accommodate that choice and could rarely deny such a request …

Justice Powell's Garden: The Ciraolo Dissent And Fourth Amendment Protection For Curtilage-Home Privacy, Catherine Hancock

San Diego Law Review

It was not surprising that the majority opinion in Ciraolo provoked an impassioned dissent. The decision was unprecedented in sanctioning aerial surveillance as a police strategy for evading Fourth Amendment prohibitions of surveillance on the ground. The officers rented a plane because they did not have probable cause to obtain a warrant to enter and search the backyard, and because their attempts to peer into the yard were stymied by a tall fence. They could not crawl over the fence because that intrusion would violate the householder's protected expectation of privacy in his curtilage, the Fourth Amendment buffer zone of …

International Criminal Jurisdiction In The Twenty First Century: Rediscovering United States V. Bowman, Ellen S. Podgor, Daniel M. Filler

San Diego Law Review

In Part I of this Article, we provide a description of the facts and holding of United States v. Bowman. In Part II, we describe the ways in which lower courts have interpreted this decision. We point to various cases citing Bowman and show how these courts give exceedingly broad application to the holding - far broader application than the opinion warrants. Finally, in Part III, we discuss the ways in which the courts should read Bowman and demonstrate how this more accurate reading of the Court's decision is consistent with the realities of twenty-first century global economies. In doing …

Striking A Balance In Unlawfully Obtained Confession Cases: United Kingdom Pragmatism Against Principle, Jenny Mcewan

San Diego Law Review

In Part I of this Article, we provide a description of the facts and holding of United States v. Bowman. In Part II, we describe the ways in which lower courts have interpreted this decision. We point to various cases citing Bowman and show how these courts give exceedingly broad application to the holding - broader application than the opinion warrants. Finally, in Part III, we discuss the ways in which the courts should read Bowman and demonstrate how this more accurate reading of the Court's decision is consistent with the realities of twenty-first century global economies. In doing so, …

Miranda At Forty, Russell L. Weaver

San Diego Law Review

In some respects, the Miranda decision was relatively uncontroversial because the Court did little more than require the police to inform suspects of their rights and prescribe procedures for the waiver of those rights. But Miranda's holding was not inevitable. In the Court's later decision in Schneckloth v. Bustamonte, the Court held that suspects can consent to searches of their persons or property even though they have not been informed that they have a Fourth Amendment right to refuse consent. A critic of Schneckloth might legitimately question how suspects can validly waive Fourth Amendment rights that they do not know …

The Prisoners’ (Plea Bargain) Dilemma, Oren Bar-Gill, Omri Ben-Shahar

Law & Economics Working Papers Archive: 2003-2009

How can a prosecutor, who has only limited resources, credibly threaten so many defendants with costly and risky trials and extract plea bargains involving harsh sentences? Had defendants refused to settle, many of them would not have been charged or would have escaped with lenient sanctions. But such collective stonewalling requires coordination among defendants, which is difficult if not impossible to attain. Moreover, the prosecutor, by strategically timing and targeting her plea offers, can create conflicts of interest among defendants, frustrating any attempt at coordination. The substantial bargaining power of the resource-constrained prosecutor is therefore the product of the collective …

La Cesión De Derechos En El Código Civil Peruano, Edward Ivan Cueva

Edward Ivan Cueva

La Cesión de Derechos en el Código Civil Peruano

Addressing Sexual Violence Against Youth In Custody, Brenda V. Smith

Presentations

No abstract provided.

Credibility: A Fair Subject For Expert Testimony?, Anne Poulin

Working Paper Series

This article explores the ways in which experts can assist the jury to assess the credibility of other witnesses and suggests analytical approaches to such expert testimony. The article argues that the courts should be more receptive to expert testimony bearing on witness credibility and engage in a more nuanced consideration of the role played by proffered expert testimony and how the role of the evidence affects its admissibility. Doing so should lead the courts to embrace the promise of the modern rules of evidence and permit experts to assist juries as they assess credibility.

Every Juror Wants A Story: Narrative Relevance, Third Party Guilt And The Right To Present A Defense, John H. Blume, Sheri L. Johnson, Emily C. Paavola

Cornell Law Faculty Publications

On occasion, criminal defendants hope to convince a jury that the state has not met its burden of proving them guilty beyond a reasonable doubt by offering evidence that someone else (a third party) committed the crime. Currently, state and federal courts assess the admissibility of evidence of third-party guilt using a variety of standards. In general, however, there are two basic approaches. Many state courts require a defendant to proffer evidence of some sort of direct link or connection between a specific third-party and the crime. A second group of state courts, as well as federal courts, admit evidence …

Kansas V. Marsh: A Thumb On The Scale Of Death?, Elizabeth Brandenburg

Mercer Law Review

In Kansas v. Marsh, the United States Supreme Court held that it is not unconstitutional for a state's death penalty statute to require a death sentence when a sentencing jury finds aggravating and mitigating factors to be in equipoise. Extending its previous decision in Walton v. Arizona, the Court explicitly determined that this type of sentencing met the requirements of Furman v. Georgia and Gregg v. Georgia, holding that no other constraint is imposed by the Constitution. While the repercussions of this decision may not be widely felt, they do indicate the direction the Court is heading …

Georgia V. Randolph: What To Do With A Yes From One But Not From Two?, Nathan A. Wood

Mercer Law Review

In Georgia v. Randolph, the United States Supreme Court held that when an officer asks two physically present occupants of the same shared residence for permission to search, that search is unreasonable under the Fourth Amendment to the United States Constitution when one occupant denies permission to search, though the other consents. In so holding, the Court created a new standard in which "widely held social expectations" dictate whether it is reasonable to assume an occupant has the authority to consent to a search.

Encarcelados Por Error, Felipe Marín

Felipe Marín Verdugo

No abstract provided.

Summary Of Schuster V. Eighth Jud. Dist. Ct., Nev. Adv. Op. No. 23, Sherry Moore

Nevada Supreme Court Summaries

Petitioner filed a writ of mandamus or prohibition on the ground that the District Court improperly denied petitioner’s writ of habeas corpus and/or motion to dismiss the indictment based on the State’s improper refusal to instruct the grand jury on the law of self-defense.

Summary Of Johnson V. State, 123 Nev. Adv. Op. No. 17, Michael J. Gayan

Nevada Supreme Court Summaries

Appellant Jeffrey Lee Johnson communicated via the Internet with several undercover law enforcement officers who he thought were 14-year-old girls. Based on the nature of the conversations, Johnson was charged under the attempt provision of NRS 201.560.2 Johnson pleaded guilty to one count of violating NRS 201.560 and failed to file a direct appeal. Johnson filed a post-conviction petition for a writ of habeas corpus in the district court, claiming ineffective assistance of counsel. Johnson argued that his counsel was ineffective for not arguing that it was impossible for Johnson to violate the attempt provision of NRS 201.560 because no …

Federal Cocaine Sentencing In Transition, Steven Chanenson, Douglas Berman

Steven L. Chanenson

No abstract provided.

Pay Now, Execute Later: Why Counties Should Be Required To Post A Bond To Seek The Death Penalty, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Retrying The Acquitted In England, Part I: The Exception To The Rule Against Double Jeopardy For New And Compelling Evidence, David S. Rudstein

San Diego International Law Journal

More than 240 years ago, Sir William Blackstone, perhaps the most important commentator on the English common law, wrote that when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime. This plea of autrefois acquit (a former acquittal), Blackstone explained, is based upon the principle that no man is to be brought into jeopardy of his life, more than once for the same offence, which he called a universal maxim of …

Algunos Apuntes En Torno A La Prescripción Extintiva Y La Caducidad, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.

Immigration Reform In America: Past, Present, And Future, Thaddeus Coffman

Undergraduate Theses and Capstone Projects

This paper examines immigration legislation throughout the history of the United States. The author has divided the focus of legislative activity into four main eras: the Laissez- Fair Era (1789-1875), the Anti-Asian Era (1876-1920), the National Origin Quotas Era (1921-1953), and the Illegal Immigration Era (1954-present). While these eras are not all inclusive, they are indicative of the main focus of legislation passed during their time. The author then compares the impact of major legislation passed during these eras to three current proposals aimed at addressing the increasing issue of illegal immigration: two versions of a guest-worker program and amnesty/legalization …

No, You May Not Search My Car! Extending Georgia V. Randolph To Vehicle Searches, Alex Chan

Washington Law Review

In Georgia v. Randolph, the United States Supreme Court announced that third-party consent does not always suffice to immunize the search of a residence from Fourth Amendment attack. Specifically, the Court held that a police search of a residence conducted pursuant to the consent of one occupant, but over the express refusal of a physically present co-occupant with common authority, is unreasonable as to the nonconsenting occupant under the Fourth Amendment. The Court did not indicate whether its holding also extended to searches of personal effects, such as vehicles, conducted pursuant to third-party consent. As a general principle, the …

No, You May Not Search My Car! Extending Georgia V. Randolph To Vehicle Searches, Alex Chan

Washington Law Review

In Georgia v. Randolph, the United States Supreme Court announced that third-party consent does not always suffice to immunize the search of a residence from Fourth Amendment attack. Specifically, the Court held that a police search of a residence conducted pursuant to the consent of one occupant, but over the express refusal of a physically present co-occupant with common authority, is unreasonable as to the nonconsenting occupant under the Fourth Amendment. The Court did not indicate whether its holding also extended to searches of personal effects, such as vehicles, conducted pursuant to third-party consent. As a general principle, the …

Efforts To Improve The Illinois Capital Punishment System: Worth The Cost?, Thomas P. Sullivan

University of Richmond Law Review

No abstract provided.

The Challenge Of Implementing Atkins V. Virginia: How Legislatures And Courts Can Promote Accurate Assessments And Adjudications Of Mental Retardation In Death Penalty Cases, Richard J. Bonnie, Katherine Gustafson

University of Richmond Law Review

Our goal in this paper is to assist state courts and legislatures as they try to carry out the task that Atkins requires of them promoting fairness and accuracy in the assessment and adjudication of mental retardation. After addressing the definition ofmental retardation in Part I, we focus on its assessment in Parts II and III, highlighting several key requirements of a scientifi-cally and clinically adequate assessment.

Part II addresses the assessment of deficits in intellectual functioning, particularly on the measurement of intelligence as represented by an intelligence quotient. Appropriate IQ tests must be used, and the scores must be …