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Articles 1 - 13 of 13
Full-Text Articles in Law
The Police Gamesmanship Dilemma, Mary D. Fan
The Police Gamesmanship Dilemma, Mary D. Fan
Articles
Police gamesmanship poses a recurring regulatory challenge for constitutional criminal procedure, leading to zigzags and murky zones in the law such as the recent rule shifts regarding searches incident to arrest and interrogation. Police gamesmanship in the “competitive enterprise of ferreting out crime” involves tactics that press on blind spots, blurry regions or gaps in rules and remedies, undermining the purpose of the protections. Currently, courts generally avoid peering into the Pandora’s Box of police stratagems unless the circumvention of a protection becomes too obvious to ignore and requires a stopgap rule-patch that further complicates the maze of criminal procedure. …
The Impact Of Ashcroft V. Iqbal On Pleading, Alexander A. Reinert
The Impact Of Ashcroft V. Iqbal On Pleading, Alexander A. Reinert
Articles
No abstract provided.
Hanging On By A Thread: The Exclusionary Rule (Or What's Left Of It) Lives For Another Day, David A. Moran
Hanging On By A Thread: The Exclusionary Rule (Or What's Left Of It) Lives For Another Day, David A. Moran
Articles
Back when there was a Soviet Union, foreign intelligence officers would anxiously await the May Day parade in Moscow to see who would be standing next to the chairman of the Communist Party and who would be missing from the reviewing platform altogether. Since the Soviet government and the statecontrolled press published very little about what was really going on in the halls of state power, this was considered the most reliable way to determine who was in or out of favor and, by extension, how the domestic and foreign policies of the world's second most powerful country were likely …
Who Must Testify To The Results Of A Forensic Laboratory Test? Bullcoming V. New Mexico, Richard D. Friedman
Who Must Testify To The Results Of A Forensic Laboratory Test? Bullcoming V. New Mexico, Richard D. Friedman
Articles
Does the Confrontation Clause permit the prosecution to introduce a forensic laboratory report through the in-court testimony of a supervisor or other person who did not perform or observe the reported test?
Gideon'S Vuvuzela: Reconciling The Sixth Amendments Promises With The Doctrines Of Forfeiture And Implicit Waiver Of Counsel, Sarah Gerwig-Moore
Gideon'S Vuvuzela: Reconciling The Sixth Amendments Promises With The Doctrines Of Forfeiture And Implicit Waiver Of Counsel, Sarah Gerwig-Moore
Articles
Dating back to the early decades of the twentieth century, the United States Supreme Court has articulated clear, venerable standards for the waiver of constitutional rights--and in particular the right to counsel. This is a rich area for both litigation and teaching, if only to be able to repeat phrases such as "courts indulge every reasonable presumption against waiver" and "we do not presume acquiescence in the loss of fundamental rights." A defendant must proceed with "eyes open," and a waiver will not be presumed from a "silent record." Consistently affirmed and reaffirmed by the United States Supreme Court and …
Controlling Sexually Violent Predators: Continued Incarceration At What Cost?, Tamara Rice Lave
Controlling Sexually Violent Predators: Continued Incarceration At What Cost?, Tamara Rice Lave
Articles
Sexually violent predator (SVP) laws are inherently suspicious because they continue to incarcerate people not because of what they have done, but because of what they might do. I focus on three major criticisms of the laws. First, I use recent recidivism data to challenge the core motivation for the SVP laws-that sex offenders are monsters who cannot control themselves. Second, I situate the laws theoretically as examples of what Feeley and Simon call the "new penology." I argue that the SVP laws show the limited promise of the new penology—that we can use science to predict risk accurately--because the …
Revising Harmless Error: Making Innocence Relevant To Direct Appeals, Helen A. Anderson
Revising Harmless Error: Making Innocence Relevant To Direct Appeals, Helen A. Anderson
Articles
In most jurisdictions, convicted defendants have the right to an appeal at public expense, and to the assistance of counsel with that appeal. But the direct appeal is almost never concerned with actual innocence. On direct appeal, courts will look at claims of trial error, and evaluate those claims and their "harmlessness" based only on the trial record. Thus, the chances of a reversal on direct appeal bear no relation to the chances that the wrong person has been convicted.
While the current appeal system may encourage proper trial procedures, it does not provide a check against wrongful conviction. The …
Throwing Away The Key: Has The Adam Walsh Act Lowered The Threshold For Sexually Violent Predator Commitments Too Far?, Tamara Rice Lave
Throwing Away The Key: Has The Adam Walsh Act Lowered The Threshold For Sexually Violent Predator Commitments Too Far?, Tamara Rice Lave
Articles
No abstract provided.
Disentangling Administrative Searches, Eve Brensike Primus
Disentangling Administrative Searches, Eve Brensike Primus
Articles
Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and …
The Illusory Right To Counsel, Eve Brensike Primus
The Illusory Right To Counsel, Eve Brensike Primus
Articles
Imagine a woman wrongly accused of murdering her fianc6. She is arrested and charged with first-degree murder. If convicted, she faces a mandatory sentence of life without the possibility of parole. Her family scrapes together enough money to hire two attorneys to represent her at trial. There is no physical evidence connecting her to the murder, but the prosecution builds its case on circumstantial inferences. Her trial attorneys admit that they were so cocky and confident that she would be acquitted that they did not bother to investigate her case or file a single pre-trial motion. Rather, they waived the …
Pretrial Incentives, Post-Conviction Review, And Sorting Criminal Prosecutions By Guilt Or Innocence, Samuel R. Gross
Pretrial Incentives, Post-Conviction Review, And Sorting Criminal Prosecutions By Guilt Or Innocence, Samuel R. Gross
Articles
The fundamental problem with false convictions is that they are unobserved, and in general, unobservable. We don't spot them when they happen-if we did, they wouldn't happen-and in most cases we can't identify them after the fact. We have no general reliable test for innocence or guilt; if we did, we'd use it at trial. As result, we often say that we don't know for sure whether a convicted criminal defendant is innocent or guilty, or even that we can't know for sure. But this isn't exactly true-or rather, its truth depends on who we mean by "we."
Juvenile Life Without Parole: Unconstitutional In Michigan?, Kimberly A. Thomas
Juvenile Life Without Parole: Unconstitutional In Michigan?, Kimberly A. Thomas
Articles
Last term, in Graham v Florida,1 the United States Supreme Court found unconstitutional the sentence of life without parole for a juvenile who committed a non-homicide offense. This attention to the sentencing of juvenile offenders is a continuation of the Court's decision in Roper v Simmons,2 in which the Court held that juvenile offenders could not constitutionally receive the death penalty. This scrutiny should be a signal to Michigan to examine its own jurisprudence on juveniles receiving sentences of life without parole. Michigan has the second-highest number of persons serving sentences of life without parole for offenses committed when they …
The Asymmetry Of Duty In Criminal Trial Practice, Maureen A. Howard
The Asymmetry Of Duty In Criminal Trial Practice, Maureen A. Howard
Articles
Although the American trial system has been likened to an arena in which mental combatants fight “to the death” (the verdict), each warrior similarly skilled and equally committed to vanquishing the other in a forum with formal rules of engagement enforced by a learned and impartial judge, the role of the criminal prosecutor is qualitatively different than that of other advocates. This is because, unlike any other lawyer, a criminal prosecutor has an affirmative duty to the opposing party.
A lawyer who represents an individual client is duty-bound to advance that client’s interests vigorously within the bounds of the law. …