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Criminal Procedure

Criminal Law and Procedure

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Articles 31 - 60 of 154

Full-Text Articles in Law

Contrived Defenses And Deterrent Threats: Two Facets Of One Problem, Claire Oakes Finkelstein, Leo Katz Jan 2008

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

Faculty Scholarship at Penn Law

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 ...


What Is A Business Crime?, Richard A. Booth Nov 2007

What Is A Business Crime?, Richard A. Booth

Working Paper Series

Criminal prosecution has been used with increasing frequency recently in connection with a variety of business failures and other financial offenses. Indeed, it appears that there are few such offenses that cannot be prosecuted criminally even though they also give rise to civil remedies. While some such offenses seem to be quite serious frauds, others seem to be as minor as getting the accounting rules wrong. Thus, the question addressed in this essay is how to define a business crime and what should be the proper role of criminal prosecution in connection with business offenses. I start with the proposition ...


Search Me?, John Burkoff Aug 2007

Search Me?, John Burkoff

University of Pittsburgh School of Law Working Paper Series

Professor Burkoff contends that most people who purportedly “consent” to searches by law enforcement officers are not really – "freely and voluntarily," as the Supreme Court decisional law supposedly requires – consenting to such searches. Yet, absent unusual circumstances, the great likelihood is that a court nonetheless will conclude that such consent was valid and any evidence seized admissible under the Fourth Amendment.

Professor Burkoff argues, however, that the Supreme Court’s 2006 decision in Georgia v. Randolph now dictates that the application of consent law doctrine should reflect the actual voluntariness (or involuntariness) of the questioned consents that come before the ...


The Prisoners’ (Plea Bargain) Dilemma, Oren Bar-Gill, Omri Ben-Shahar Jul 2007

The Prisoners’ (Plea Bargain) Dilemma, Oren Bar-Gill, Omri Ben-Shahar

Law & Economics Working Papers Archive: 2003-2009

How can a prosecutor, who has only limited resources, credibly threaten so many defendants with costly and risky trials and extract plea bargains involving harsh sentences? Had defendants refused to settle, many of them would not have been charged or would have escaped with lenient sanctions. But such collective stonewalling requires coordination among defendants, which is difficult if not impossible to attain. Moreover, the prosecutor, by strategically timing and targeting her plea offers, can create conflicts of interest among defendants, frustrating any attempt at coordination. The substantial bargaining power of the resource-constrained prosecutor is therefore the product of the collective ...


Credibility: A Fair Subject For Expert Testimony?, Anne Poulin Jul 2007

Credibility: A Fair Subject For Expert Testimony?, Anne Poulin

Working Paper Series

This article explores the ways in which experts can assist the jury to assess the credibility of other witnesses and suggests analytical approaches to such expert testimony. The article argues that the courts should be more receptive to expert testimony bearing on witness credibility and engage in a more nuanced consideration of the role played by proffered expert testimony and how the role of the evidence affects its admissibility. Doing so should lead the courts to embrace the promise of the modern rules of evidence and permit experts to assist juries as they assess credibility.


Every Juror Wants A Story: Narrative Relevance, Third Party Guilt And The Right To Present A Defense, John H. Blume, Sheri L. Johnson, Emily C. Paavola Jul 2007

Every Juror Wants A Story: Narrative Relevance, Third Party Guilt And The Right To Present A Defense, John H. Blume, Sheri L. Johnson, Emily C. Paavola

Cornell Law Faculty Publications

On occasion, criminal defendants hope to convince a jury that the state has not met its burden of proving them guilty beyond a reasonable doubt by offering evidence that someone else (a third party) committed the crime. Currently, state and federal courts assess the admissibility of evidence of third-party guilt using a variety of standards. In general, however, there are two basic approaches. Many state courts require a defendant to proffer evidence of some sort of direct link or connection between a specific third-party and the crime. A second group of state courts, as well as federal courts, admit evidence ...


Rights, Wrongs, And Comparative Justifications, Vera Bergelson Apr 2007

Rights, Wrongs, And Comparative Justifications, Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

The goal of this article is to rethink the relationship between the concepts of justification and wrongdoing, which play vital roles in the theory of criminal law. Reading George P. Fletcher’s new book, The Grammar of Criminal Law, in the context of his earlier scholarship has led me to one major disagreement with Fletcher as well as with the traditional criminal law doctrine: for Fletcher and many others, wrongdoing and justification mutually exclude each other; for me, they do not.

Consider a hypothetical: a group of people are captured by criminals. The criminals are about to kill everyone but ...


Solving The Lawyer Problem In Criminal Cases, George C. Thomas Iii Feb 2007

Solving The Lawyer Problem In Criminal Cases, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

We are learning that the vaunted American adversarial system too often fails to protect innocent defendants. Part of the problem is that indigent criminal defenders, in many parts of the country, are overburdened to the point that they cannot always provide an adequate adversarial testing of the State’s case. Part of the problem is the emotional burn out that many defenders experience. A less well known part of the problem is that the very nature of the adversarial mentality too often causes prosecutors to cut corners and thus threaten innocent defendants. “Solving the Lawyer Problem in Criminal Cases,” a ...


Parallel Courts, Elena A. Baylis Feb 2007

Parallel Courts, Elena A. Baylis

University of Pittsburgh School of Law Working Paper Series

Even as American attention is focused on Iraq’s struggles to rebuild its political and legal systems in the face of violent sectarian divisions, another fractured society – Kosovo – has just begun negotiations to resolve the question of its political independence. The persistent ethnic divisions that have obstructed Kosovo’s efforts to establish multi-ethnic “rule of law” offer lessons in transitional justice for Iraq and other states.

In Kosovo today, two parallel judicial systems each claim absolute and exclusive jurisdiction over the province. One system is sponsored by the United Nations administration in Kosovo and is mostly, although not exclusively, staffed ...


Making Crime (Almost) Disappear, George C. Thomas Iii Feb 2007

Making Crime (Almost) Disappear, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

This essay sketches the outlines of a future world in which crime has been drastically reduced. The author proposes two radical approaches to achieve this crime reduction. Some crimes, like drunk driving, can be almost completely eliminated by using technology to prevent the operation of a vehicle by a driver with a blood alcohol greater than the permissible level. Other crimes, like larceny or burglary of expensive items, can be made extremely easy to solve by requiring the installation of micro chips that will, when activated, broadcast their location to police.

To the objection that it will be expensive to ...


Economics Of Plea Bargaining, Richard Adelstein Jan 2007

Economics Of Plea Bargaining, Richard Adelstein

Division II Faculty Publications

A short summary of earlier work for a sociological audience.


Forgiveness In Criminal Procedure, Stephanos Bibas Jan 2007

Forgiveness In Criminal Procedure, Stephanos Bibas

Faculty Scholarship at Penn Law

Though forgiveness and mercy matter greatly in social life, they play fairly small roles in criminal procedure. Criminal procedure is dominated by the state, whose interests in deterring, incapacitating, and inflicting retribution leave little room for mercy. An alternative system, however, would focus more on the needs of human participants. Victim-offender mediation, sentencing discounts, and other mechanisms could encourage offenders to express remorse, victims to forgive, and communities to reintegrate and employ offenders. All of these actors could then better heal, reconcile, and get on with their lives. Forgiveness and mercy are not panaceas: not all offenders and victims would ...


Bound And Gagged: The Peculiar Predicament Of Professional Jurors, Michael B. Mushlin Jan 2007

Bound And Gagged: The Peculiar Predicament Of Professional Jurors, Michael B. Mushlin

Pace Law Faculty Publications

This Article advocates two changes to the law. First, parties should be allowed (but not required) to strike professional jurors for cause in cases involving their expertise without any additional showing of a particular bias toward one side or the other. Second, if such jurors are empanelled, they should not be “gagged.” Rather, they should be free to draw on and share their expertise as are all other jurors. This Article proceeds in four Parts. Part I discusses recent reform efforts that have fundamentally altered the jury system by opening it up to increased numbers of professional jurors. Part II ...


Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook Dec 2006

Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook

Scholarly Works

This Article will commence with a review of the rather significant evolution of Rule 11, including a review of several pertinent Supreme Court decisions that have helped shape its current structure. Thereafter, the predominant judicial methodology for conducting Rule 11 hearings will be discussed. Specifically, this Article will take a brief but critical look at, inter alia, the examination techniques employed by the judiciary when conducting Rule 11 hearings, and conclude that the process typically employed inadequately assesses whether a defendant's guilty plea was entered into knowingly and voluntarily. Next, this Article will discuss two very recent Supreme Court ...


Remembering Welsh White, John Burkoff Nov 2006

Remembering Welsh White, John Burkoff

University of Pittsburgh School of Law Working Paper Series

This paper was an adaptation from a eulogy for Welsh White, an esteemed Criminal Procedure professor at the University of Pittsburgh School of Law.


The Real (Sentencing) World: State Sentencing In The Post-Blakely Era, Douglas A. Berman, Steven L. Chanenson Nov 2006

The Real (Sentencing) World: State Sentencing In The Post-Blakely Era, Douglas A. Berman, Steven L. Chanenson

Working Paper Series

Soon after the Supreme Court in Blakely v. Washington declared certain judicial fact-finding within a state sentencing guideline system unconstitutional, Justice O’Connor described the Court’s decision as a “Number 10 earthquake.” But two years after the Blakely ruling, the case’s broader impact and meaning for state criminal justice systems around the country has been largely overshadowed by developments in the federal sentencing system. Nevertheless, this is an exciting time for state sentencing. By granting review in yet another state sentencing case, California v. Cunningham, this past spring, the Supreme Court brings state issues to the national stage ...


The Brain-Disordered Defendant: Neuroscience And Legal Insanity In The Twenty-First Century, Richard E. Redding Oct 2006

The Brain-Disordered Defendant: Neuroscience And Legal Insanity In The Twenty-First Century, Richard E. Redding

Working Paper Series

Brain-damaged defendants are seen everyday in American courtrooms, and in many cases, their criminal behavior appears to be the product of extremely poor judgment and self-control. Some have a disorder in the frontal lobes, the area of the brain responsible for judgment and impulse control. Yet because defendants suffering from frontal lobe dysfunction usually understand the difference between right and wrong, they are unable to avail themselves of the only insanity defense available in many states, a defense based on the narrow McNaghten test. “Irresistible impulse” (or “control”) tests, on the other hand, provide an insanity defense to those who ...


Write On!, Steven L. Chanenson Aug 2006

Write On!, Steven L. Chanenson

Working Paper Series

Modern federal appellate review of sentences is a recent phenomenon introduced by the Sentencing Reform Act of 1984. Before United States v. Booker, courts of appeal focused on enforcing the technical rules of the federal sentencing guidelines and did so with (over)zealous enthusiasm. In the new post-Booker world, appellate judges are supposed to review sentences for "reasonableness." But how are they supposed to determine what is - or is not - a reasonable sentence? The answer to this puzzle rests in the mind of the District Judge. This short essay argues that the sentencing judge must explain his reasons, and meaningfully ...


The Right To Be Hurt. Testing The Boundaries Of Consent., Vera Bergelson May 2006

The Right To Be Hurt. Testing The Boundaries Of Consent., Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

People's right to consent to pain, injury or death has always been one of the most controversial issues in criminal law and moral philosophy. In recent years, that issue has moved to the forefront of public, legislative, and academic debates in the United States and abroad due to a series of high-profile criminal trials, which involved consenting victims in various contexts--from sadomasochism and cannibalism to experimental medical treatment and mercy killing.

Currently, American criminal law does not recognize consent of the victim as a defense to bodily harm, except in a few historically defined circumstances. That rule has been ...


Evolution And Denial: State Sentencing After Blakely And Booker, Steven L. Chanenson, Daniel F. Wilhelm Apr 2006

Evolution And Denial: State Sentencing After Blakely And Booker, Steven L. Chanenson, Daniel F. Wilhelm

Working Paper Series

Justice Louis Brandeis famously described the states as laboratories where individual jurisdictions can experiment with various legal strategies. In the wake of Blakley v. Washington, and United States v. Booker those laboratories have been working overtime. Since June 2004, both state legislatures and state courts have grappled with the significance of the United States Supreme Court's treatment of the Sixth Amendment in sentencing. It is unsurprising, given the extraordinary significance and potential reach of Blakely and Booker, that this Herculean task has produced divergent results.

Although there are many potential ways to sort those results, for the purposes of ...


Adult Punishment For Juvenile Offenders: Does It Reduce Crime?, Richard E. Redding Apr 2006

Adult Punishment For Juvenile Offenders: Does It Reduce Crime?, Richard E. Redding

Working Paper Series

This chapter discusses the research on the general and specific deterrent effects of transferring juveniles for trial in adult criminal court, identifies gaps in our knowledge base that require further research, discusses the circumstances under which effective deterrence may be achieved, and examines whether there are effective alternatives for achieving deterrence other than adult sanctions for serious juvenile offenders. As a backdrop to this analysis, the chapter first examines the role of public opinion in shaping the get tough policies, and how policy makers have misunderstood and perceived support for these policies.


Standing Room Only: Why Fourth Amendment Exclusion And Standing No Longer Logically Coexist, Sherry F. Colb Mar 2006

Standing Room Only: Why Fourth Amendment Exclusion And Standing No Longer Logically Coexist, Sherry F. Colb

Rutgers Law School (Newark) Faculty Papers

The Fourth Amendment exclusionary rule provides that a criminal defendant may suppress the fruits of unreasonable searches and seizures at his prosecution. The Fourth Amendment standing requirement limits the class of criminal defendants who may invoke the exclusionary rule to those who have personally suffered a violation of their rights. This Article argues that the two doctrines are logically inconsistent with each other. The exclusionary rule rests on a foundation of deterrence that takes as its point of departure the police officer's subjective perspective of events and asks: did the information known to him justify his conduct? The standing ...


Emotional Competence, "Rational Understanding," And The Criminal Defendant, Terry A. Maroney Mar 2006

Emotional Competence, "Rational Understanding," And The Criminal Defendant, Terry A. Maroney

University of Southern California Legal Studies Working Paper Series

Adjudicative competence, more commonly referred to as competence to stand trial, is a highly undertheorized area of law. Though it is well established that, to be competent, a criminal defendant must have a “rational” as well as “factual” understanding of her situation, the meaning of such “rational understanding” has gone largely undefined. Given the large number of criminal prosecutions in which competence is at issue, the doctrine’s instability stands in stark contrast to its importance.

This Article argues that adjudicative competence, properly understood, asks whether a criminal defendant has capacity to participate meaningfully in the host of decisions potentially ...


Multicultural Perspectives On Delinquency Etiology And Intervention, Richard E. Redding, Bruce Arrigo Mar 2006

Multicultural Perspectives On Delinquency Etiology And Intervention, Richard E. Redding, Bruce Arrigo

Working Paper Series

In this chapter, we consider the possible reasons for the overrepresentation of African-American youth in the juvenile and criminal justice systems. We review research on discrimination in the justice system and possible differences between African American and White youth in the key risk factors for delinquency that exist at the individual, family, and peer-group and neighborhood levels. Based on these findings, we provide recommendations for treatments and interventions aimed at preventing and reducing offending and justice system involvement among African-American youth.


Habeas Corpus And Baseball, Donald E. Wilkes Jr. Mar 2006

Habeas Corpus And Baseball, Donald E. Wilkes Jr.

Scholarly Works

In the late 19th and early 20th centuries playing baseball on Sundays was a criminal offense in many states, where police often aggressively intervened to prevent or stop baseball games from being played on the Sabbath. In 1894, “the police of the city of Brooklyn took it upon themselves to chase, club and lock up all boys and men found playing ball on Sunday,” People ex rel. Poole v. Hesterberg, 43 Misc. 510, 89 N.Y.S. 498, 499 (N.Y. Sup. Ct. Kings County 1904); on two consecutive Sundays in July 1910, two professional baseball teams attempting to play ...


Justice Story Cuts The Gordian Knot Of Hung Jury Instructions, George C. Thomas Iii, Mark Greenbaum Jan 2006

Justice Story Cuts The Gordian Knot Of Hung Jury Instructions, George C. Thomas Iii, Mark Greenbaum

Rutgers Law School (Newark) Faculty Papers

Constitutional law grows more complex over time. The complexity is due, in large part, to the rule of stare decisis. When faced with precedents that it does not wish to follow, the Court usually distinguishes the case before it. Thus, the constitutional landscape is littered with cases that do not fit well together. Navigating past these shoals is often difficult for courts following the Supreme Court’s lead. One example is the law governing instructions that a trial judge can give a deadlocked jury in a criminal case. The right to a jury trial entails the right to have the ...


Reflections On Brady V. Maryland, Bennett L. Gershman Jan 2006

Reflections On Brady V. Maryland, Bennett L. Gershman

Pace Law Faculty Publications

Part I of this Article describes the evolution of the Brady rule over the past forty-three years. Part I sketches the origins of the rule and its doctrinal developments. Part II closely examines Brady's impact on constitutional criminal procedure. Part II suggests that Brady's essential goal has been eroded by the courts, subverted by prosecutors, and ignored by disciplinary bodies. Part III proposes that only through expanding a defendant's right to discovery can the goal of Brady be realized. The Article concludes that Brady, more than any other rule of constitutional criminal procedure, has been the most ...


Terrorism And The New Criminal Process, John Parry Sep 2005

Terrorism And The New Criminal Process, John Parry

University of Pittsburgh School of Law Working Paper Series

Executive and legislative actions after 9/11 demonstrate a shift in the way the federal government combats terrorism. Traditional law enforcement entities have been given new powers, and military and intelligence personnel have taken on a new prominence. Criminal prosecutions are still being brought against persons suspected of terrorist activity, but the government seems less willing to accord criminal trials a central role in anti-terror efforts. In short, we are seeing the creation of a “new criminal process” for terrorism, a process that in many cases bypasses federal courts and operates wholly outside the territorial boundaries of the United States ...


A Law And Economics Perspective On Terrorism, Nuno M. Garoupa , Jonathan Klick, Francesco Parisi Sep 2005

A Law And Economics Perspective On Terrorism, Nuno M. Garoupa , Jonathan Klick, Francesco Parisi

George Mason University School of Law Working Papers Series

This paper reviews the existing law and economics literature on crime, noting where various models might apply to the terror context. Specifically, it focuses on two strands of the literature, deterrence and incapacitation. Challenging the conventional application of the basic rational agent model of crime in the context of terrorism, it considers anti-terror measures enacted by different countries, highlighting how the details of the laws correspond to the insights from economic models of crime. In conclusion, the paper proposes an efficient sorting mechanism in which individuals will be provided with adequate incentives to reveal their type to law enforcement authorities.


Guidance From Above And Beyond, Steven L. Chanenson Aug 2005

Guidance From Above And Beyond, Steven L. Chanenson

Working Paper Series

Criminal sentencing does not just happen in the courtroom. Some key sentencing decisions happen long before court convenes, while other critical sentencing decisions take place long after court adjourns. Although the public focuses primarily on the black-robed figure wielding the gavel, sentencing reflects decisions by a veritable parade of actors, including legislators, sentencing commissioners, police officers, prosecutors, juries, trial judges, appellate judges, and executive branch officials. All of these people guide and constrain the sentencing process. Through their official actions, they inform each other about what is happening in their corners of the sentencing drama, and prod their counterparts to ...