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Articles 1 - 15 of 15
Full-Text Articles in Law
Manipulation Of Suspects And Unrecorded Questioning, Christopher Slobogin
Manipulation Of Suspects And Unrecorded Questioning, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Fifty years after Miranda, courts still do not have clear guidance on the types oftechniques police may use during interrogation. While first-generation tactics (a.k.a. the third degree) are banned, second-generation tactics such as those found in the famous Reid Manual continue to be used by interrogators. The Supreme Court has sent only vague signals as to which of these second- generation techniques, if any, are impermissible, and has made no mention of newly developed third-generation tactics that are much less reliant on manipulation. This Article divides second-generation techniques into four categories: impersonation, rationalization, fabrication, and negotiation. After concluding, based on …
Juries And Prior Convictions: Managing The Demise Of The Prior Conviction Exception To "Apprendi", Nancy J. King
Juries And Prior Convictions: Managing The Demise Of The Prior Conviction Exception To "Apprendi", Nancy J. King
Vanderbilt Law School Faculty Publications
This essay offers a menu of procedural alternatives for coping with the potential, some would say inevitable, abandonment of the prior conviction exception to the rule in Apprendi v. New Jersey. It compiles options states have used for years to manage jury prejudice when proof of prior conviction status is required, including partial guilty pleas, partial jury waivers, bifurcation of the trial proceeding, stipulations, and rules limiting what information about the prior conviction may be admitted. These options belie the claim that the exception must be preserved to prevent jury prejudice against defendants. For courts and legislatures interested in anticipating …
Reclaiming Equality To Reframe Indigent Defense Reform, Lauren Sudeall
Reclaiming Equality To Reframe Indigent Defense Reform, Lauren Sudeall
Vanderbilt Law School Faculty Publications
Equal access to resources is fundamental to meaningful legal representation, yet for decades, equality arguments have been ignored in litigating indigent defense reform. At a time when underfunded indigent defense systems across the country are failing to provide indigent defendants with adequate representation, the question of resources is even more critical. Traditionally, advocates seeking indigent defense reform have relied on Sixth Amendment arguments to protect the rights of indigents in this context; however, the Sixth Amendment approach suffers from a number of shortcomings that have made it a poor tool for systemic reform, including its exclusive focus on attorney performance …
Enforcing Effective Assistance After Martinez, Nancy J. King
Enforcing Effective Assistance After Martinez, Nancy J. King
Vanderbilt Law School Faculty Publications
This Essay argues that the Court’s effort to expand habeas review of ineffective assistance of counsel claims in Martinez v. Ryan will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent representation in state criminal cases. Drawing upon statistics about habeas litigation and emerging case law, the Essay first explains why Martinez is not likely to lead to more federal habeas grants of relief. It then presents new empirical information about state postconviction review (cases filed, counsel, hearings, and relief rates), post-Martinez decisions, and anecdotal reports from the …
Citizens United & Corporate & Human Crime, Christopher Slobogin
Citizens United & Corporate & Human Crime, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Citizens United v. Election Commission held that, like human citizens, corporations can exercise their right to free speech by spending as much money as they like trying to influence elections. This article does not attack or defend that decision, but rather explores its implications for criminal liability, corporate and otherwise. Most prominently, Citizens United reinforces the long-accepted but still highly controversial proposition that, despite their inanimate nature, corporations can be criminally prosecuted for harm they cause. Less obviously, Citizens United provides fodder for those who would soften current corporate liability and punishment rules. Less obviously still, the decision could bolster …
Justice Ginsburg's Gradualism In Criminal Procedure, Christopher Slobogin
Justice Ginsburg's Gradualism In Criminal Procedure, Christopher Slobogin
Vanderbilt Law School Faculty Publications
This article, written for a symposium analyzing Justice Ginsburg’s jurisprudence on the 15th anniversary of her tenure on the Supreme Court, is the first sustained look at her views on criminal procedure issues (search and seizure, interrogation, the right to counsel, trial rights, sentencing procedures, and the criminal appeals and collateral review processes). Not surprisingly, given her ACLU background, she tends to vote in favor of criminal defendants’ positions more often than most other justices, and she is the most likely to do so since Chief Justice Roberts joined the Court. At the same time, the gradualist tendencies that she …
A Near Term Retrospective On The Al-Dujail Trial & The Death Of Saddam Hussein, Michael A. Newton
A Near Term Retrospective On The Al-Dujail Trial & The Death Of Saddam Hussein, Michael A. Newton
Vanderbilt Law School Faculty Publications
Saddam Hussein al-Tikriti died at the hands of Iraqi officials at dawn on December 30, 2006, following a tumultuous fourteen month trial3 for crimes committed against the citizens of a relatively obscure Iraqi village known as al-Dujail.4 Maintaining his façade of disdain when the verdict and sentence were announced on November 5, 2006, Saddam entered the courtroom with an arrogant strut and refused to stand until the guards made him do so to hear the judge’s opinion.5 When Saddam interrupted the reading of the verdict, Judge Ra’ouf Rasheed Abdel Rahman turned down the volume of his microphone and spoke over …
Reasonableness Review After Booker, Nancy J. King
Reasonableness Review After Booker, Nancy J. King
Vanderbilt Law School Faculty Publications
About a year ago, the Supreme Court in United States v. Booker declared a new standard for the appellate review of federal sentences-reasonableness. Justice Breyer, writing for the Court, asserted reassuringly that the reasonableness standard is not really new at all because judges had been applying it for years to review sentences for crimes lacking specific guidelines, sentences imposed after probation revocation, and, at least until 2003, sentences based upon departures from the recommended guideline range. Like most new legal standards that take shape case-by-case through the appellate process, reasonableness review is developing incrementally, creeping more clearly into view with …
Teaching A Course On Regulation Of The Police (With A Special Focus On The Sixth Amendment), Christopher Slobogin
Teaching A Course On Regulation Of The Police (With A Special Focus On The Sixth Amendment), Christopher Slobogin
Vanderbilt Law School Faculty Publications
The organizers of this symposium gave us the choice of writing about effective assistance of counsel or about teaching criminal procedure. I've decided to do both. This article discusses teaching the criminal procedure course most often called "Police Practices," for which I write a textbook entitled Regulation of Police Investigation: Legal, Historical, Empirical and Comparative Materials.' Borrowing heavily from the Teacher's Manual for that book, the first part of this article describes my general philosophy for teaching the course. The rest of the article illustrates this philosophy by describing how I teach students about the application of the Sixth Amendment …
Felony Jury Sentencing In Practice: A Three-State Study, Nancy J. King, Rosevelt L. Noble
Felony Jury Sentencing In Practice: A Three-State Study, Nancy J. King, Rosevelt L. Noble
Vanderbilt Law School Faculty Publications
Jury sentencing in non-capital cases is one of the least understood procedures in contemporary American criminal justice. This Article looks beyond idealized visions of jury sentencing to examine for the first time how felony jury sentencing actually operates in three different states - Kentucky, Virginia, and Arkansas. Dozens of interviews with prosecutors, defenders, and judges, as well as an analysis of state sentencing data, reveal that this neglected corner of state criminal justice provides a unique window through which one can observe some of the most fundamental forces operating in criminal adjudication today. It turns out that jury sentencing in …
Beyond Blakely, Nancy J. King, Susan Riva Klein
Beyond Blakely, Nancy J. King, Susan Riva Klein
Vanderbilt Law School Faculty Publications
Federal criminal sentencing in the wake of Blakely v. Washington is, to put it charitably, a mess. In holding that Blakely's sentence under the Washington State Sentencing Guidelines was imposed in a manner inconsistent with the Sixth Amendment right to a jury trial, the decision threatens the operation of the Federal Sentencing Guidelines and the presumptive sentencing systems in fourteen states. In Parts I and II of this article, we address how Blakely has affected the Federal Sentencing Guidelines, and how assistant U.S. attorneys, federal public defenders, and district and appellate court judges might proceed in a post-Blakely world. In …
Constitutional Risks To Equal Protection In The Criminal Justice System, Edward K. Cheng
Constitutional Risks To Equal Protection In The Criminal Justice System, Edward K. Cheng
Vanderbilt Law School Faculty Publications
This Note has examined the consequences of a shift in the equal protection context - a move from a traditional particularized harm perspective to a constitutional risk perspective focused on systemic harms. It has also acknowledged the significant remedial difficulties associated with constitutional risk, but by focusing on discretion as the source of most equal protection risks, this Note has proposed a moderate doctrinal change: discretionary safeguards. To be sure, this Note leaves the project substantially incomplete. Constitutional risk's focus on statistical evidence requires careful discussion of the pitfalls judges face in this area and of how they can develop …
Priceless Process: Nonnegotiable Features Of Criminal Litigation, Nancy J. King
Priceless Process: Nonnegotiable Features Of Criminal Litigation, Nancy J. King
Vanderbilt Law School Faculty Publications
In this Article, Professor Nancy King develops an approach for determining when judges should block the efforts of criminal litigants to bypass constitutional and statutory requirements other than those already traded freely in traditional plea bargains. Devices for classifying nonnegotiable requirements, including the concept of "jurisdictional error," have lost their utility. Clearer rules about which deals are enforceable and which are not would increase certainty in bargaining and reduce disparate treatment of similarly situated defendants. King argues that the interests of third parties or the public may justify restrictions on bargains in criminal procedure, and she traces the stubborn persistence …
Having It Both Ways: Proof That The U.S. Supreme Court Is "Unfairly" Prosecution-Oriented, Christopher Slobogin
Having It Both Ways: Proof That The U.S. Supreme Court Is "Unfairly" Prosecution-Oriented, Christopher Slobogin
Vanderbilt Law School Faculty Publications
If the assertions that this essay makes about the Court's "unfair" prosecution-orientation withstand scrutiny," two further conclusions might follow. First, the highest court in the country is so fixated on ensuring that a particular side wins that it is willing with some frequency to sacrifice the most basic attribute of any court worthy of the name-the appearance of fairness. This conclusion is a much more fundamental challenge to the Court's integrity than is the simple acknowledgement that a majority of the Justices are biased in favor of the government. Second, to the extent the Court's unfairness becomes common knowledge, its …
Portioning Punishment: Constitutional Limits On Successive And Excessive Penalties, Nancy J. King
Portioning Punishment: Constitutional Limits On Successive And Excessive Penalties, Nancy J. King
Vanderbilt Law School Faculty Publications
There has been a remarkable increase during the last decade in the imposition of overlapping civil, administrative, and criminal sanctions for the same misconduct, as well as a steady rise in the severity of those sanctions. In response, defendants have balked, arguing that legislators and the juries, judges, prosecutors, and regulators who apply legislatively authorized sanctions have overstepped the bounds of punishment permitted by the Constitution. Claiming that their penalties violate the Double Jeopardy, Due Process, Excessive Fines, and Cruel and Unusual Punishments Clauses in the Bill of Rights, civil and criminal defendants are prompting courts to reevaluate constitutional limits …