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Series

Criminal Procedure

2002

Institution
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Articles 1 - 30 of 53

Full-Text Articles in Law

Are Police Free To Disregard Miranda?, Steven D. Clymer Dec 2002

Are Police Free To Disregard Miranda?, Steven D. Clymer

Cornell Law Faculty Publications



What Is A Search? Two Conceptual Flaws In Fourth Amendment Doctine And Some Hints Of A Remedy, Sherry F. Colb Oct 2002

What Is A Search? Two Conceptual Flaws In Fourth Amendment Doctine And Some Hints Of A Remedy, Sherry F. Colb

Cornell Law Faculty Publications

No abstract provided.


Tailored Police Testimony At Suppression Hearings, Joel Atlas Oct 2002

Tailored Police Testimony At Suppression Hearings, Joel Atlas

Cornell Law Faculty Publications

Whether a court must suppress evidence typically turns on the conduct or observations of the police officer who discovered the evidence. By falsely testifying to the facts surrounding the discovery of the evidence, a police officer may validate a blatantly unconstitutional search. New York courts have long recognized that police officers sometimes fabricate suppression testimony to meet constitutional restrictions. Indeed, the Appellate Division has rejected police testimony at suppression hearings where the officer’s testimony appears to have been “patently tailored to nullify constitutional objections.” Although, to be sure, rejections are rare and their number appears to be declining, the ...


The Problem Of The Expert Juror., Paul F. Kirgis Oct 2002

The Problem Of The Expert Juror., Paul F. Kirgis

Faculty Law Review Articles

In this article, I argue that the new focus on the risks of spurious "expertise" compels attention to the problem of juror expertise. 24 Specialized knowledge poses the same risks to the truth-seeking objectives of trial whether it enters the decision-making process through expert testimony or through the back door of juror background knowledge. In fact, the risks to accuracy may be less when expertise is offered by a witness than when it is introduced by a juror, because the witness will be subject to cross-examination and rebuttal. Flawed expertise brought to the case by a juror is not subject ...


Section 8: Criminal Law & Procedure, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2002

Section 8: Criminal Law & Procedure, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 1: Lockyer V. Andrade, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2002

Section 1: Lockyer V. Andrade, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Non-Citizen Offenders And Immigration Crimes: New Challenges In The Federal System, Nora V. Demleitner, Jon M. Sands Apr 2002

Non-Citizen Offenders And Immigration Crimes: New Challenges In The Federal System, Nora V. Demleitner, Jon M. Sands

Faculty Scholarship

Not available.


The Preparatory Commission For The International Criminal Court, Valerie Oosterveld Mar 2002

The Preparatory Commission For The International Criminal Court, Valerie Oosterveld

Law Publications

As it becomes increasingly clear that the International Criminal Court will be set up in the near future, it is important to reflect on the work of the Preparatory Commission for the International Criminal Court. When the Rome Statute was being negotiated, it became very clear that additional documents would be necessary in order to create a fully functioning ICC. At the time, eight such documents were identified and included in Resolution F of the Final Act of the Rome Diplomatic conference. As work on these documents nears completion, States have begun to consider the practicalities of setting up the ...


Juries, Drug Laws & Sentencing (Symposium), Nancy S. Marder Feb 2002

Juries, Drug Laws & Sentencing (Symposium), Nancy S. Marder

All Faculty Scholarship

No abstract provided.


Random Vs. Suspicion-Based Drug Testing In The Public Schools -- A Surprising Civil Liberties Dilemma, Martin H. Belsky Jan 2002

Random Vs. Suspicion-Based Drug Testing In The Public Schools -- A Surprising Civil Liberties Dilemma, Martin H. Belsky

Akron Law Publications

The Tecumseh School District had a policy that all students who wished to participate in extracurricular activities that involved some sort of competition had to agree to drug testing before the competition and then randomly thereafter. ... Those selected for accusatory drug testing might be perceived to be wearing a "badge of shame" and be subject to the arbitrary whim of an administrator. ... Vernonia involved a rule requiring drug testing as a condition for participation in extracurricular competitive sports. ... In Earls, the Tecumseh School District adopted a "Student Activities Drug Testing Policy" that required all students who wished to participate in ...


Respecting Pandora's Box, Erica Beecher-Monas Jan 2002

Respecting Pandora's Box, Erica Beecher-Monas

Law Faculty Research Publications

No abstract provided.


Double Helix, Double Bind: Factual Innocence And Postconviction Dna Testing, Seth F. Kreimer, David Rudovsky Jan 2002

Double Helix, Double Bind: Factual Innocence And Postconviction Dna Testing, Seth F. Kreimer, David Rudovsky

Faculty Scholarship at Penn Law

No abstract provided.


Do Jury Trials Encourage Harsh Punishment In The United States?, William T. Pizzi Jan 2002

Do Jury Trials Encourage Harsh Punishment In The United States?, William T. Pizzi

Articles

No abstract provided.


The Ins And Outs, Stops And Starts Of Speedy Trial Rights In Colorado--Part Ii, H. Patrick Furman Jan 2002

The Ins And Outs, Stops And Starts Of Speedy Trial Rights In Colorado--Part Ii, H. Patrick Furman

Articles

This two-part article reviews the constitutional and statutory right to a speedy trial and discusses the case law interpreting that right. The first part was printed in July 2002.

See Part I at http://scholar.law.colorado.edu/articles/550/.


The Discretionary Power Of "Public" Prosecutors In Historical Perspective, Carolyn B. Ramsey Jan 2002

The Discretionary Power Of "Public" Prosecutors In Historical Perspective, Carolyn B. Ramsey

Articles

Norms urging prosecutors to seek justice by playing a quasi-judicial role and striving for fairness to defendants are often assumed to have deep historical roots. Yet, in fact, such a conception of the prosecutor's role is relatively new. Based on archival research on the papers of the New York County District Attorney's Office, "The Discretionary Power of 'Public' Prosecutors in Historical Perspective" explores the meaning of the word "public" as it applied to prosecutors in the nineteenth century. This article shows that, in the early days of public prosecution, district attorneys were expected to maximize convictions and leave ...


The Ins And Outs, Stops And Starts Of Speedy Trial Rights In Colorado--Part I, H. Patrick Furman Jan 2002

The Ins And Outs, Stops And Starts Of Speedy Trial Rights In Colorado--Part I, H. Patrick Furman

Articles

This two-part article discusses the constitutional right to a speedy trial and the basics of the speedy trial statute.

See Part II at http://scholar.law.colorado.edu/articles/551/.


Excuses And Dispositions In Criminal Law, Claire Oakes Finkelstein Jan 2002

Excuses And Dispositions In Criminal Law, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

No abstract provided.


Accuracy Where It Matters: Brady V. Maryland In The Plea Bargaining Context, Corinna Barrett Lain Jan 2002

Accuracy Where It Matters: Brady V. Maryland In The Plea Bargaining Context, Corinna Barrett Lain

Law Faculty Publications

Professor Lain argues that the role of Brady v. Maryland in protecting the innocent from wrongful conviction is just as essential in the plea bargaining context as it is at trial, and that therefore even defendants who plead guilty should be entitled to Brady's protections. However, she concludes that Brady's application in the plea bargaining context is destined to provide only a shadow of the protection Brady provides at trial because of the materiality standard currently used to judge post-plea Brady claims. In making both points, she employs a model of the plea bargaining defendant's decision-making process ...


Empirical Studies Contribute To Death Penalty Debate, Joan W. Howarth Jan 2002

Empirical Studies Contribute To Death Penalty Debate, Joan W. Howarth

Faculty Publications

No abstract provided.


When Legislatures Delegate Death: The Troubling Paradox Behind State Uses Of Electocution And Lethal Injection And What It Says About Us, Deborah W. Denno Jan 2002

When Legislatures Delegate Death: The Troubling Paradox Behind State Uses Of Electocution And Lethal Injection And What It Says About Us, Deborah W. Denno

Faculty Scholarship

This article discusses the paradoxical motivations and problems behind legislative changes from one method of execution to the next, and particularly moves from electrocution to lethal injection. This article first examines the constitutionality of electrocution, contending that a modern Eighth Amendment analysis of a range of factors, such as legislative trends toward lethal injection, indicates that electrocution is cruel and unusual. It then provides an Eighth Amendment review of lethal injection, demonstrating that injection also involves unnecessary pain, the risk of such pain, and a loss of dignity. The article next presents the author's study of the most current ...


Editor's Observations: The Geology Of Drug Policy In 2002, Frank O. Bowman Iii Jan 2002

Editor's Observations: The Geology Of Drug Policy In 2002, Frank O. Bowman Iii

Faculty Publications

Public concern about drug abuse as a major issue in American life may be ebbing. The notion that "the drug war is a failure" has become the common wisdom in academic and journalistic circles. Support for routine and lengthy imprisonment of non-violent drug offenders may be eroding, even among the prosecutors, police, and judges whose job it is to enforce the law. Anger among African American, Latino, and other minority communities at the perceived discriminatory enforcement of drug laws is simmering and may begin to boil over in ways that effect the political terrain. And after the events of September ...


Quiet Rebellion Ii: An Empirical Analysis Of Declining Federal Drug Sentences Including Data From The District Level, Frank O. Bowman, Michael Heise Jan 2002

Quiet Rebellion Ii: An Empirical Analysis Of Declining Federal Drug Sentences Including Data From The District Level, Frank O. Bowman, Michael Heise

Cornell Law Faculty Publications

This is the second of two articles in which we seek an explanation for the hitherto unexamined fact that the average length of prison sentences imposed in federal court for narcotics violations declined by more than 15% between 1991-92 and 2000.

Our first article, Quiet Rebellion? Explaining Nearly a Decade of Declining Federal Drug Sentences, 86 Iowa Law Review 1043 (May 2001) ( "Rebellion I" ), examined national sentencing data in an effort to determine whether the decline in federal drug sentences is real (rather than a statistical anomaly), and to identify and analyze possible causes of the decline. We considered whether ...


Retroactive Application Of "New Rules" And The Antiterrorism And Effective Death Penalty Act, A. Christopher Bryant Jan 2002

Retroactive Application Of "New Rules" And The Antiterrorism And Effective Death Penalty Act, A. Christopher Bryant

Faculty Articles and Other Publications

For three decades, the application of United States Supreme Court criminal procedure decisions has confused the Court's habeas corpus jurisprudence. In 1999, the Court's decision in Williams v. Taylor might have resolved the ambiguous relationship between the pre-1996 habeas corpus retroactivity decisions - the most significant of which was Teague v. Lane - and the habeas corpus reform provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Unfortunately, the Williams decision has only engendered further confusion.

Two decades before Teague, the second Justice Harlan proposed an approach to retroactivity questions, arguing that a decision that announced a ...


Miranda's Final Frontier - The International Arena: A Critical Analysis Of U.S. V. Bin Laden, And A Proposal For A New Miranda Exception Abroad, Mark A. Godsey Jan 2002

Miranda's Final Frontier - The International Arena: A Critical Analysis Of U.S. V. Bin Laden, And A Proposal For A New Miranda Exception Abroad, Mark A. Godsey

Faculty Articles and Other Publications

In recent years, the FBI and other federal law agencies have greatly expanded their presence abroad, investigating everything from narcotics trade and internet fraud schemes to terrorism. This trend will undoubtedly continue in the aftermath of September 11th. A constitutional question that will be of increasing importance in this context is whether, or to what extent, U.S. law enforcement officials (hereinafter "FBI") must provide Miranda warnings to non-U.S. citizens interrogated abroad who will later be tried in the United States.

The article first addresses whether future modifications to the Miranda doctrine are permissible after Dickerson. The article concludes ...


Quiet Rebellion Ii: An Empirical Analysis Of Declining Federal Drug Sentences Including Data From The District Level With Michael Heise, Frank O. Bowman Iii, Michael Heise Jan 2002

Quiet Rebellion Ii: An Empirical Analysis Of Declining Federal Drug Sentences Including Data From The District Level With Michael Heise, Frank O. Bowman Iii, Michael Heise

Faculty Publications

This is the second of two articles in which we seek an explanation for the hitherto unexamined fact that the average length of prison sentences imposed in federal court for narcotics violations declined by more than 15% between 1991-92 and 2000.


The Writ Of Habeas Corpus, Donald E. Wilkes Jr. Jan 2002

The Writ Of Habeas Corpus, Donald E. Wilkes Jr.

Scholarly Works

A fundamental legal safeguard of freedom and the most important English common law writ, the writ of habeas corpus is a court order commanding that an imprisoned person be personally produced in court and that an explanation be provided as to why that person is detained. The writ of habeas corpus provides a judicial remedy for enforcing a fundamental individual right, the right to personal liberty, which may be defined as the right to be free of physical restraint that is not justified by law. Whenever imprisonment violates a constitutional or fundamental right, there is an infringement of the right ...


Activism As Restraint: Lessons From Criminal Procedure, Stephen F. Smith Jan 2002

Activism As Restraint: Lessons From Criminal Procedure, Stephen F. Smith

Journal Articles

In this Article, I advance a limited defense of judicial activism by the Burger and Rehnquist Courts in constitutional criminal procedure. My basic claim is that even if the so-called "Counterrevolution" in criminal procedure is viewed as activist -- as I think much of it must be -- it nevertheless was normatively defensible as a necessary condition, in a “second-best” world, of reaching an equilibrium closer to the judicial restraint model than would be possible if activism were only a one-way ratchet. Though my thesis supplies a justification for the Burger and Rehnquist Court's basic approach to legal change, it would ...


Witness Coaching By Prosecutors, Bennett L. Gershman Jan 2002

Witness Coaching By Prosecutors, Bennett L. Gershman

Pace Law Faculty Publications

Given its controversial nature, one would expect the practice and ethics of witness coaching to have attracted close scrutiny by courts and commentators. Interestingly, however, the subject has received relatively modest attention. A handful of judicial and ethics opinions have discussed superficially the subject of witness preparation and coaching. Practitioner manuals typically offer general guidance on how to prepare witnesses, and occasionally address tactical and ethical issues involved in coaching. Scholarly commentary has examined the ethical limits of witness preparation, particularly by differentiating acceptable techniques from improper techniques, which promote false or misleading testimony. In addition, popular culture occasionally has ...


Quasi-Affirmative Rights In Constitutional Criminal Procedure, David A. Sklansky Jan 2002

Quasi-Affirmative Rights In Constitutional Criminal Procedure, David A. Sklansky

Faculty Scholarship

No abstract provided.


Informant Credibility And Evidence Of Cooperation In Other Cases, Clifford S. Fishman Jan 2002

Informant Credibility And Evidence Of Cooperation In Other Cases, Clifford S. Fishman

Scholarly Articles and Other Contributions

The prosecutor calls an informant as a witness. Her carefully prepared questions elicit in damning detail how-according to the informant-the defendant eagerly participated in the crimes charged in the indictment. On cross, defense counsel goes into full attack mode, covering the informant's prior convictions, his other unsavory and untruthful acts, and the informant's sordid reasons for cooperating with the police-money, a break on his own case, or both. To rehabilitate the informant, the prosecutor wants to elicit testimony from police officers about the many cases the informant has helped them make and how truthful he has always been ...