Law Commons^™

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 …

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 …

Juries And The Criminal Constitution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Judges are regularly deciding criminal constitutional issues based on changing societal values. For example, they are determining whether police officer conduct has violated society’s "reasonable expectations of privacy" under the Fourth Amendment and whether a criminal punishment fails to comport with the "evolving standards of decency that mark the progress of a maturing society" under the Eighth Amendment. Yet judges are not trained to assess societal values, nor do they, in assessing them, ordinarily consult data to determine what those values are. Instead, judges turn inward, to their own intuitions, morals, and values, to determine these matters. But judges’ internal …

Moral Touchstone, Not General Deterrence: The Role Of International Criminal Justice In Fostering Compliance With International Humanitarian Law, Chris Jenks

Faculty Journal Articles and Book Chapters

This article contends that international criminal justice provides minimal general deterrence of future violations of international humanitarian law (IHL). Arguments that international courts and tribunals deter future violations – and that such deterrence is a primary objective – assume an internally inconsistent burden that the processes cannot bear, in essence setting international criminal justice up for failure. Moreover, the inherently limited number of proceedings, the length of time required, the dense opinions generated, the relatively light sentences and the robust confinement conditions all erode whatever limited general deterrence international criminal justice might otherwise provide. Bluntly stated, thousands of pages of …

The Exclusionary Rule As A Symbol Of The Rule Of Law, Jenia I. Turner

SMU Law Review

Throughout South America, Southern and Eastern Europe, and East Asia, more than two dozen countries have transitioned to democracy since the 1980s. A remarkable number of these have adopted an exclusionary rule (mandating that evidence obtained unlawfully by the government is generally inadmissible in criminal trials) as part of broader legal reforms. Democratizing countries have adopted exclusionary rules even though they are not required to do so by any international treaty and there is no indication that there is widespread popular demand for such rules. This has occurred at a time when the rule has been weakened in the United …

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, …

Finality And Rehabilitation, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

New science and evolving societal views have led commentators to question the doctrine of finality. This parallels commentators’ embrace of rehabilitation during the middle of the last century. Today, casting off the strictures of finality and embracing rehabilitation are considered complementary positions, but finality has historically been understood as promoting rehabilitation. This shift stems from our changing understandings of rehabilitation. Rehabilitation focuses on offender change — on whether an offender is a final product or, rather, whether he is capable of transformation. Offender change, though, could be either change in character or change in behavior, or a combination of these …