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Criminal Procedure

Criminal Law and Procedure

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Full-Text Articles in Law

Is Miranda Good News Or Bad News For The Police: The Usefulness Of Empirical Evidence, Meghan J. Ryan Jan 2017

Is Miranda Good News Or Bad News For The Police: The Usefulness Of Empirical Evidence, Meghan J. Ryan

Faculty Scholarship

The U.S. Supreme Court’s landmark case of Miranda v. Arizona created a culture in which police officers regularly warn arrestees that they have a right to remain silent, that anything they say can and will be used against them in a court of law, that they have the right to an attorney, and that if they cannot afford one, an attorney will be appointed to them. These Miranda warnings have a number of possible effects. The warnings are meant to inform suspects about negative consequences associated with speaking to the police without the assistance of counsel. In this ...


Sharing Public Safety Helicopters, Henry H. Perritt Jr. Apr 2014

Sharing Public Safety Helicopters, Henry H. Perritt Jr.

All Faculty Scholarship

No abstract provided.


A Decade Of Progress: Promising Models For Children Found In The Turkish Juvenile Justice System, Brenda A. Mckinney, Lauren Salins Jan 2014

A Decade Of Progress: Promising Models For Children Found In The Turkish Juvenile Justice System, Brenda A. Mckinney, Lauren Salins

Social Justice

Turkey has improved its approach to interacting with children in conflict with the law over the past decade, moving closer to a system that ensures its children the opportunity to strive for a better future. This Article focuses on two promising Turkish reforms that hold potential to improve juvenile justice systems internationally, namely: open model incarceration and Turkey’s approach to diversion. This Article demonstrates how a child-centered juvenile justice system can improve public safety and outcomes for youth. It also addresses potential challenges to each model and identifies broader issues that may require reform.


An Alternative To Death-Qualification: The Nonunanimous Penalty Jury, Jane Tucker Mar 2012

An Alternative To Death-Qualification: The Nonunanimous Penalty Jury, Jane Tucker

Student Scholarship Papers

Eliminating jurors for cause based on their opinions concerning the death-penalty (“death-qualification”) is a widespread practice that has been upheld by multiple Supreme Court cases, but which has been widely criticized for resulting in juries that studies have shown to be more conviction-prone, and biased toward the prosecution, in addition to being unrepresentative of the community at large. This Note offers a possible solution to the problems caused by death-qualification at both the guilt and penalty phases, unlike those proposed thus far: specifically, the elimination of death-qualification altogether, coupled with the relaxation of the unanimity requirement at the penalty phase.


Innocence Interrupted: Reconstructing Fatherhood In The Shadow Of Child Molestation, Camille Gear Rich Feb 2012

Innocence Interrupted: Reconstructing Fatherhood In The Shadow Of Child Molestation, Camille Gear Rich

University of Southern California Legal Studies Working Paper Series

This Article shows why criminal law should be regarded as parenting law, as child molestation statutes formally categorized as criminal statutes are increasingly being used to regulate parents’ behavior as they engage in mundane childcare practices. In the hands of legal decision-makers, these laws end up being enforced in ways that reinstantiate traditional gender norms. This Article charts the problem by showing how the inquiry authorized by today’s broad, far reaching child molestation statutes invites and even requires judges, juries other legal decision-makers to rely on gendered notions of cultural “common sense” to resolve child molestation cases involving fathers ...


Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach Jan 2012

Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach

Faculty Scholarship at Penn Law

No abstract provided.


E-Race-Ing Gender: The Racial Construction Of Prison Rape, Kim S. Buchanan Nov 2011

E-Race-Ing Gender: The Racial Construction Of Prison Rape, Kim S. Buchanan

University of Southern California Legal Studies Working Paper Series

Prison rape is a form of gender violence. Men’s prisons institutionalize a toxic form of masculinity when they foster homophobia, physical violence and an institutional culture that requires inmates to prove their masculinity by fighting. Staff and inmate abusers alike target small, young, effeminate, gay, bisexual and transgender inmates. According to recent nationwide survey data, the two factors that most strongly predict an inmate’s risk of sexual abuse are (1) prior sexual victimization, and (2) gay, bisexual or transgender identity. Nonetheless, prison rape continues to be understood in accordance with an inaccurate stereotype that it is typically black-on-white ...


The Benefits Of A Right To Silence For The Innocent, Shmuel Leshem Nov 2011

The Benefits Of A Right To Silence For The Innocent, Shmuel Leshem

University of Southern California Legal Studies Working Paper Series

This article shows that innocent suspects benefit from exercising their right to silence during criminal proceedings. We present a model in which a criminal suspect can either make a statement or remain silent during police interrogation. At trial, the jury observes informative but imperfect signals about the suspect's guilt and the truthfulness of the suspect's statement. We show that a right to silence benefits innocent suspects by providing them with a safer alternative to speech, as well as by reducing the probability of wrongful conviction for suspects who remain silent with and without a right to silence.


Apprendi And The Dynamics Of Guilty Pleas, Stephanos Bibas Nov 2011

Apprendi And The Dynamics Of Guilty Pleas, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.


Public Wrongs And The ‘Criminal Law’S Business’: When Victims Won’T Share, Michelle Dempsey Aug 2011

Public Wrongs And The ‘Criminal Law’S Business’: When Victims Won’T Share, Michelle Dempsey

Working Paper Series

Amongst the many valuable contributions that Professor Antony Duff has made to criminal law theory is his account of what it means for a wrong to be public in character. In this chapter, I sketch an alternative way of thinking about criminalization, one which attempts to remain true to the important insights that illuminate Duff’s account, while providing (it is hoped) a more satisfying explanation of cases involving victims who reject the criminal law’s intervention.


Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill Aug 2011

Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill

Working Paper Series

My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys—and this is what the proponents of a duty ...


"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill Aug 2011

"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill

Working Paper Series

This is the introductory chapter of Stories About Science in Law: Literary and Historical Images of Acquired Expertise (Ashgate, 2011), explaining that the book presents examples of how literary accounts can provide a supplement to our understanding of science in law. Challenging the view that law and science are completely different, I focus on stories that explore the relationship between law and science, and identify cultural images of science that prevail in legal contexts. In contrast to other studies on the transfer and construction of expertise in legal settings, the book considers the intersection of three interdisciplinary projects-- law and ...


The Selection Of Thirteenth-Century Disputes For Litigation, Daniel M. Klerman Jul 2011

The Selection Of Thirteenth-Century Disputes For Litigation, Daniel M. Klerman

University of Southern California Legal Studies Working Paper Series

Priest and Klein's seminal 1984 article argued that litigated cases differ systematically and predictably from settled cases. This article tests the Priest-Klein selection model using a data set of thirteenth-century English cases. These cases are especially informative because juries rendered verdicts even in settled cases, so one can directly compare verdicts in settled and litigated cases. The results are consistent with the predictions of the Priest-Klein article, as well as with the asymmetric-information selection models developed by Hylton and Shavell.


The Limited Diagnosticity Of Criminal Trials, Dan Simon Feb 2011

The Limited Diagnosticity Of Criminal Trials, Dan Simon

University of Southern California Legal Studies Working Paper Series

A fundamental function of the criminal trial is to determine the facts correctly in order to distinguish between guilty and innocent defendants, and between strong and weak prosecutions. This Article seeks to answer a simple question: How good is the criminal trial at reaching accurate factual conclusions?

The Article applies a body of experimental psychology to examine the ability of factfinders to assess the evidence and draw correct inferences from it. The psychological research indicates that the mental processes involved in determining facts in criminal trials are more complex and fickle than generally believed. Part I exposes the difficulties in ...


The Myth Of The Fully Informed Rational Actor, Stephanos Bibas Jan 2011

The Myth Of The Fully Informed Rational Actor, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.


Punishment As Contract, Claire Oakes Finkelstein Jan 2011

Punishment As Contract, Claire Oakes Finkelstein

Faculty Scholarship at Penn Law

This paper provides a sketch of a contractarian approach to punishment, according to a version of contractarianism one might call “rational contractarianism,” by contrast with the normative contractarianism of John Rawls. Rational contractarianism suggests a model according to which rational agents, with maximal, rather than minimal, knowledge of their life circumstances, would agree to the outlines of a particular social institution or set of social institutions because they view themselves as faring best in such a society governed by such institutions, as compared with a society governed by different institutional schemes available for adoption. Applied to the institution of punishment ...


Two Cheers, Not Three For Sixth Amendment Originalism, Stephanos Bibas Jan 2011

Two Cheers, Not Three For Sixth Amendment Originalism, Stephanos Bibas

Faculty Scholarship at Penn Law

No abstract provided.


The Case Of "Death For A Dollar Ninety-Five": Miscarriages Of Justice And Constructions Of American Identity, Mary L. Dudziak May 2010

The Case Of "Death For A Dollar Ninety-Five": Miscarriages Of Justice And Constructions Of American Identity, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This is a story about a case long forgotten. It was a case that needed to be forgotten, to safeguard the meaning of American justice. The case of “Death for a Dollar Ninety-Five” began one July night in Marion, Alabama, in 1957, and soon captured the attention of the world. It involved an African American man, a white woman, and the robbery of a small amount of change late in the evening. The conviction was swift and the penalty was death. International criticism soon rained down on the Alabama Governor and the American Secretary of State, leading to clemency and ...


What Is Due To Others: Speaking And Signifying Subject(S) Of Rape Law, Penelope J. Pether Apr 2010

What Is Due To Others: Speaking And Signifying Subject(S) Of Rape Law, Penelope J. Pether

Working Paper Series

Australian journalist Paul Sheehan's representation of the alleged and convicted immigrant Muslim/Arab rapists he demonises in 'Girls Like You', like his representation of the rape survivors in that text, has much to tell us about the law's production of rape law's speaking and signifying subjects, “real rape” victims and survivors, false accusers and perpetrators. This article uses a variety of texts, including 'Girls Like You', recent Australian rape law jurisprudence and legislative reform, texts involving two controversial recent US rape cases — one from Maryland and one from Nebraska — and a recent UK study on attrition in ...


Conflicts Of Interest In Criminal Cases: Should The Prosecution Have A Duty To Disclose?, Anne Poulin Feb 2010

Conflicts Of Interest In Criminal Cases: Should The Prosecution Have A Duty To Disclose?, Anne Poulin

Working Paper Series

This article addresses two types of conflicts of interests that arise in criminal cases: 1) when defense counsel has an employment relation to the prosecutor’s office, and 2) when defense counsel faces criminal investigation or charges. Both these situations threaten both the defendant’s representation and the actual as well as apparent fairness of the proceeding. Yet, only in extreme cases are these conflicts likely to result in a reversal of the defendant’s conviction. As a result, protection of the defendant and the fairness of the process often depends on early intervention, which allows the court to advise ...


New Perspectives On Brady And Other Disclosure Obligations: Report Of The Working Groups On Best Practices, Stephanos Bibas, Jennifer Blasser, Keith A. Findley, Ronald F. Wright, Jennifer E. Laurin, Cookie Ridolfi Jan 2010

New Perspectives On Brady And Other Disclosure Obligations: Report Of The Working Groups On Best Practices, Stephanos Bibas, Jennifer Blasser, Keith A. Findley, Ronald F. Wright, Jennifer E. Laurin, Cookie Ridolfi

Faculty Scholarship at Penn Law

No abstract provided.


Advising Noncitizen Defendants On The Immigration Consequences Of Criminal Convictions: The Ethical Answer For The Criminal Defense Lawyer, The Court, And The Sixth Amendment, Yolanda Vazquez Jan 2010

Advising Noncitizen Defendants On The Immigration Consequences Of Criminal Convictions: The Ethical Answer For The Criminal Defense Lawyer, The Court, And The Sixth Amendment, Yolanda Vazquez

Faculty Articles and Other Publications

This Article discusses the tension between the Sixth Amendment analysis by courts on the issue of immigration consequences of criminal convictions and the moral and ethical duties that an attorney owes his noncitizen client. Under the majority of jurisdictions, federal circuit and state courts hold that there is no duty to advise on this issue because they are deemed to be “collateral”. However, a growing number of these jurisdictions have begun to find a Sixth Amendment violation for failure to advise. These jurisdictions have created a Sixth Amendment duty only when: 1) the attorney “knew or should have known” the ...


Should Bush Administration Lawyers Be Prosecuted For Authorizing Torture?, Claire Oakes Finkelstein, Michael Lewis Jan 2010

Should Bush Administration Lawyers Be Prosecuted For Authorizing Torture?, Claire Oakes Finkelstein, Michael Lewis

Faculty Scholarship at Penn Law

No abstract provided.


Gendered Laws, Racial Stories, Kim S. Buchanan Sep 2009

Gendered Laws, Racial Stories, Kim S. Buchanan

University of Southern California Legal Studies Working Paper Series

In this Article, I argue that, in prisons and in Title VII jurisprudence, the legal response to same-sex sexual harassment and abuse enforces the norms of masculinity that abusers enact in the practice of such abuse and harassment. Prison guards and administrators routinely refuse to prevent or punish sexual abuse, telling the victim to “Be a man. Stand up and fight.” If he is raped, the victim is often told that he is—or has been made—“gay,” and therefore “liked it.” Similar norms, albeit in less violent and more coded form, inflect Title VII jurisprudence of same-sex sexual harassment ...


Self-Love And Forgiveness: A Holy Alliance?, Patrick Mckinley Brennan Jul 2009

Self-Love And Forgiveness: A Holy Alliance?, Patrick Mckinley Brennan

Working Paper Series

Forgiving is not pardoning, excusing, condoning, forgetting, or reconciling, nor is forgiving just about a change in emotions on the part of a victim. This paper pursues a virtue-theoretic account of the human person in the context of the theology of Thomas Aquinas, arguing that human forgiveness is the form love takes by an offended toward her offender. The paper argues, first, for the priority of the offended person's self-love and, second, for such self-love's extension into love of the offender as another self. The paper explores in depth the challenges of seeing one's enemy as "another ...


The Case Of Weak Will And Wayward Desire., Vera Bergelson Sep 2008

The Case Of Weak Will And Wayward Desire., Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

In this article, I confront Garvey¡¯s argument that a weak-willed individual deserves partial excuse for trying to resist a strong desire that pushes him toward commission of a criminal act even though in the end he unreasonably abandons his resistance and commits the crime.

I attempt to refute Garvey¡¯s argument on two counts: one, I question whether the law should indeed provide mitigation to such an offender; and two, I argue that, even if it should, this mitigation may not come in the form of a partial defense. Defenses, even partial, are desert based, and there is nothing ...


Consent To Harm, Vera Bergelson Jul 2008

Consent To Harm, Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

This article continues conversation about consent to physical harm started in Vera Bergelson, The Right to Be Hurt: Testing the Boundaries of Consent, 75 Geo. Wash. L. Rev. 165 (2007).

Intentionally injuring or killing another person is presumptively wrong. To overcome this presumption, the perpetrator must establish a defense of justification. Consent of the victim may serve as one of the grounds for such a defense. This article puts forward criteria for the defense of consent.

One element of the proposed defense is essential to both its complete and partial forms ¨C that consent of the victim be rational and ...


``No One Does That Anymore": On Tushnet, Constitutions, And Others, Penelope J. Pether Jun 2008

``No One Does That Anymore": On Tushnet, Constitutions, And Others, Penelope J. Pether

Working Paper Series

In this contribution to the Quinnipiac Law Review’s annual symposium edition, this year devoted to the work of Mark Tushnet, I read his antijuridification scholarship “against the grain,” concluding both that Tushnet’s later scholarship is neo-Realist rather than critical in its orientation, and that both his early scholarship on slavery and his post-9/11 constitutional work reveal an ambivalence about the claim that we learn from history to circumscribe our excesses, which anchors his popular constitutionalist rhetoric.

The likeness of Tushnet’s scholarship to the work of the Realists lies in this: while the Realists’ search for a ...


Presidential Authority And The War On Terror, Joseph W. Dellapenna Feb 2008

Presidential Authority And The War On Terror, Joseph W. Dellapenna

Working Paper Series

Immediately after the attacks on the United States of September 11, 2001, President George W. Bush claimed, among other powers, the power to launch preemptive wars on his own authority; the power to disregard the laws of war pertaining to occupied lands; the power to define the status and treatment of persons detained as “enemy combatants” in the war on terror; and the power to authorize the National Security Agency to undertake electronic surveillance in violation of the Foreign Intelligence Surveillance Act. With the exception of the power to launch a preemptive war on his own authority (for which he ...


The Sixth Amendment And Criminal Sentencing, Stephanos Bibas, Susan R. Klein Jan 2008

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

Faculty Scholarship at Penn Law

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.