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Full-Text Articles in Law
The Online Criminal Trial As A Public Trial, Stephen Smith
The Online Criminal Trial As A Public Trial, Stephen Smith
Faculty Publications
There are two ways of favorably conceiving online trials in Sixth Amendment terms. One is that an online trial is a public trial, by its terms. The other is that an online trial may not be public, for Sixth Amendment purposes, but may nonetheless satisfy applicable constitutional demands for trials considered “closed.” This Essay proposes both: that an online trial is fundamentally “public” for Sixth Amendment purposes and, if it is not, it may still be a constitutional accommodation of the Sixth Amendment’s public trial guarantee, in appropriate circumstances.
The constitutionality of an online trial may be largely an idle …
What’S In A Name? Strict Scrutiny And The Right To A Public Trial, Stephen Smith
What’S In A Name? Strict Scrutiny And The Right To A Public Trial, Stephen Smith
Faculty Publications
The right to a public trial has only rarely been addressed by the Supreme Court, but in Waller v. Georgia, the Court set forth a test for determining when it is appropriate to close a courtroom to the public, despite the general public trial command. The language of the Waller test suggests great rigor. This essay proposes a reconsideration of the test for courtroom closures, rethinking whether traditional strict scrutiny thinking is appropriate in this constitutional and practical context. That said, this essay does not argue with Waller’s broad outlines. Courts making closure decisions should consider reasons and …
Overcharging, Kyle Graham
Overcharging, Kyle Graham
Faculty Publications
The prosecutors in several recent high-profile criminal cases have been accused of “overcharging” their quarry. These complaints have implied — and sometimes expressly asserted — that by “overcharging,” the prosecutors engaged in socially undesirable, illegitimate, and even corrupt behavior. United States Supreme Court Justice Antonin Scalia also weighed in on the “overcharging” phenomenon not long ago, describing this practice as a predictable though regrettable aspect of modern plea bargaining.
Unfortunately, many of these commentators either have failed to explain precisely what they meant by “overcharging,” or have used the same word to describe different types of charging practices. The various …
Innocent Of A Capital Crime: Parallels Between Innocence Of A Crime And Innocence Of The Death Penalty, Ellen Kreitzberg, Linda Carter
Innocent Of A Capital Crime: Parallels Between Innocence Of A Crime And Innocence Of The Death Penalty, Ellen Kreitzberg, Linda Carter
Faculty Publications
This analysis begins with an examination of the Court's Eighth Amendment jurisprudence and how this impacts the procedures that are required in a capital trial. Then we will present a brief review of habeas corpus law and the barriers that have been imposed to restrict federal court review of claims. We will explain how AEDPA modified the ability of a petitioner to get evidentiary hearings and imposed restrictions on the filling of second or successive petitions. Then, we will look at circumstances in which claims of innocence may be raised in a petition for habeas corpus. Finally, we will compare …