Law Commons^™

“Doing Time”....After The Jury Acquits: Resolving The Post-Booker “Acquitted Conduct” Sentencing Dilemma, Peter Erlinder

C. Peter Erlinder

No abstract provided.

Portland, Prohibition And Probable Cause: Maine's Role In Shaping Modern Criminal Procedure, Wesley M. Oliver

Wesley M Oliver

At the time the Constitution was written, police officers had very little power. In most cases they were required to wait for a complaint from a victim to arrest, or a warrant from a magistrate to perform a search of any kind. Victims had extraordinary discretion in this era. Generally, only victims could seek arrest or search warrants and they were required only to allege that they had probable cause to support the arrest or search they sought. In most cases, an officer could not obtain a warrant even if he could provide the facts supporting his suspicions. Warrantless arrests …

Human Dignity Under The Fourth Amendment, John D. Castiglione

John D. Castiglione

Fourth Amendment "reasonableness" jurisprudence as currently constituted is incapable of providing consistent decisions reflective of the underlying philosophical and moral structure of the Constitution. Increasingly, courts have allowed reasonableness analysis to devolve into little more than an awkward balancing exercise between the needs of law enforcement and the interests of "privacy." Upon initial consideration, this seems appropriate; the Fourth Amendment has been long been understood as a bulwark against unreasonable privacy invasions in the course of law enforcement. This understanding is, however, incomplete. As courts have moved towards an almost exclusive focus on privacy as the counter-balance to the government's …

Un-Incorporating The Bill Of Rights: The Tension Between The Fourteenth Amendment And The Federalism Concerns That Underlie Modern Criminal Procedure Reforms., Justin F. Marceau

Justin Marceau

The selective incorporation of the Bill of Rights through the Fourteenth Amendment is the hallmark of modern criminal procedure. After nearly fifty-years, however, it is time to critically reflect on the continued vitality of what has become an unquestioned principle of constitutional hornbook law. This Article confronts the fact that there has been a sea change in the Court’s approach to questions of federalism, ultimately concluding that reforms like the AEDPA require a return to local control that is inconsistent with the concept of constitutional incorporation and the uniformity it requires.

Earlier this term in Danforth v. Minnesota, the Court …

Wrongly Accused Redux: How Race Contributes To Convicting The Innocent: The Informants Example, Andrew E. Taslitz

Andrew E. Taslitz

This article analyzes five forces that may raise the risk of convicting the innocent based upon the suspect's race: the selection, ratchet, procedural justice, bystanders, and aggressive-suspicion effects. In other words, subconscious forces press police to focus more attention on racial minorites, the ratchet makes this focus every-increasing, the resulting sense by the community of unfair treatment raises its involvment in crime while lowering its willingness to aid the police in resisting crime, innocent persons suffer when their skin color becomes associated with criminality, and the police use more aggressive techniques on racial minorities in a way that raises the …

Throwing The Key Away: An Examination Of New York's Sex Offender Commitment Law, Joseph E. Fahey

Joseph E Fahey

This article examines the Sex Offender Management and Treatment Act enacted by New York effective April 1, 2007. It examines the statute, its various flaws, the constitutional implications of those flaws, its effect on the State's judicial system, and the way in which the courts have construed it since it has been in effect.

Responding To The Time-Based Failures Of The Criminal Law Through A Criminal Sunset Amendment, Richard E. Myers Ii

Faculty Publications

No abstract provided.

The Constable Blunders But Isnt Punished Does Hudson V Michigans Abolition Of The Exclusionary Rule Extend Beyond Knockandannounce Violations, Mark A. Summers

Faculty Scholarship

No abstract provided.

Wrongly Accused Redux: How Race Contributes To Convicting The Innocent: The Informants Example, Andrew E. Taslitz

School of Law Faculty Publications

This article analyzes five forces that may raise the risk of convicting the innocent based upon the suspect's race: the selection, ratchet, procedural justice, bystanders, and aggressive-suspicion effects. In other words, subconscious forces press police to focus more attention on racial minorites, the ratchet makes this focus every-increasing, the resulting sense by the community of unfair treatment raises its involvment in crime while lowering its willingness to aid the police in resisting crime, innocent persons suffer when their skin color becomes associated with criminality, and the police use more aggressive techniques on racial minorities in a way that raises the …

Hybrid Class Actions, Dual Certification, And Wage Law Enforcement In The Federal Courts, Andrew Brunsden

Articles & Chapters

Hybrid wage-and-hour class actions, which combine a Fair Labor Standards Act ("FLSA ') opt-in collective action and a Federal Rule of Civil Procedure Rule 23 opt-out class action in a single civil action, demonstrate the unusual interplay of opt-in and opt-out rules. The hybrid class action, and its viability as a mechanism for wage law enforcement, raises fundamental questions as to who participates in lawsuits, how we should hold employers accountable for wage-and-hour noncompliance, and the role of the federal courts in enforcing public rights. An opt-in rule tends to produce low participation rates, while an opt-out rule tends to …

Duress, Demanding Heroism And Proportionality: The Erdemovic Case And Beyond, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

This Article discusses the Erdemovic case in order toexamine whether duress should be a defense to a crime against humanity. Although the Article contends that the arguments in favor of permitting the defendant to claim duress weaken as the seriousness of the offense charged increases, the Article also argues that the duress defense should usually succeed if it can be proved that the actor could not have prevented the threatened harm by refusing to capitulate to the coercion. After balancing the competing considerations, the Author concludes that the defendant in Erdemovic should have been able to claim duress as a …

Contrived Defenses And Deterrent Threats: Two Facets Of One Problem, Claire Oakes Finkelstein, Leo Katz

All Faculty Scholarship

What relation do the various parts of a plan bear to the overall aim of the plan? In this essay we consider this question in the context of two very different problems in the criminal law. The first, known in the German criminal law literature as the Actio Libera in Causa, involves defendants who contrive to commit crimes under conditions that would normally afford them a justification or excuse. The question is whether such defendants should be allowed to claim the defense when the defense is itself either contrived or anticipated in advance. The second is what we call the …

The Sixth Amendment And Criminal Sentencing, Stephanos Bibas, Susan R. Klein

All Faculty Scholarship

This symposium essay explores the impact of Rita, Gall, and Kimbrough on state and federal sentencing and plea bargaining systems. The Court continues to try to explain how the Sixth Amendment jury trial right limits legislative and judicial control of criminal sentencing. Equally important, the opposing sides in this debate have begun to form a stable consensus. These decisions inject more uncertainty in the process and free trial judges to counterbalance prosecutors. Thus, we predict, these decisions will move the balance of plea bargaining power back toward criminal defendants.

The Yukos War: The Five Year Anniversary, Dmitry Gololobov

Dmitry Gololobov

No abstract provided.

California's Dueling Harmless Error Standards: Approaches To Federal Constitutional Error In Civil Trials And Establishing The Proper Test For Dependency, Meehan Rasch

Meehan Rasch

For forty years, California appellate courts generally have applied one discrete harmless error test for federal constitutional error in criminal cases and another for civil proceedings. In appeals from convictions in California state criminal cases, errors rising to a federal constitutional dimension are governed by the standard of Chapman v. California, which requires that these errors be proven by the state to be harmless beyond any reasonable doubt. The more lenient standard (for the trial court) of People v. Watson, which holds errors of state law and procedure harmless unless there is a reasonable probability that such error prejudiced the …

Criminal Procedure: The Investigative Process, David Rudstein

David S Rudstein

No abstract provided.

Teaching Rape: Some Reflections On Pedagogy, Michelle Dempsey

Michelle Madden Dempsey

This short essay, which discusses the difficulties of teaching sexual offences, was written for the Oxford Law Society and published in the student run magazine, The Verdict, in Trinity Term 2007.

The Sounds Of Silence: Reconsidering The Right To Remain Silent Under Miranda, Marcy S. Strauss

Marcy S. Strauss

In Miranda v. Arizona, the Supreme Court required that prior to any custodial interrogation a suspect must be informed that he has the right to remain silent and the right to an attorney and that no interrogation can occur until the suspect waives these rights. Although these protections seem on first blush to effectively empower a suspect to choose whether to speak to the police, many have deemed Miranda a ‘spectacular failure.’” There are numerous critics of the Miranda decision and its progeny on a variety of levels, but what has received too little attention is whether the most basic …

Establishing Separate Criminal And Civil Evidence Codes, John J. Capowski

John J. Capowski

The Case For Civil Forfeiture: Why In Rem Proceedings Are An Essential Tool For Recovering The Proceeds Of Crime, Stefan D. Cassella

Stefan D Cassella

The article outlines the reasons why a purely in personam asset forfeiture system that relies on a criminal conviction for the recovery of criminal proceeds is inadequate, and why governments implementing asset forfeiture schemes should make civil in rem forfeiture part of the legislative program.