Law Commons^™

Despite Bryant, Why Bruton Can No Longer Survive In A Post-Crawford World, James Bilek

James Bilek

IN 2004, THE SUPREME COURT OF THE UNITED STATES DECIDED ONE OF ITS MOST CONTROVERSIAL CASES IN RECENT MEMORY: CRAWFORD V. WASHINGTON. IN CRAWFORD, THE COURT HELD THAT THE CONFRONTATION CLAUSE IN THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION REQUIRES THAT EVERY CRIMINAL DEFENDANT BE AFFORDED THE PROCEDURAL RIGHT TO CROSS-EXAMINE CERTAIN WITNESSES AGAINST THEM. ALTHOUGH THIS LIKELY OVERRULED THE PRIOR ROBERTS STANDARD, SOMETHING MORE SUBTLE WAS ALSO LURKING IN ITS BACKGROUND. DECIDED ALMOST FORTY YEARS EARLIER, BRUTON V. UNITED STATES FORBID THE USE OF HEARSAY EVIDENCE AGAINST A DEFENDANT, ABSENT CROSS-EXAMINATION, UNLESS THE APPLICABLE RULES OF EVIDENCE PROVIDED …

Rules, Resources, And Relationships: Contextual Constraints On Prosecutorial Decision Making, Don Stemen

Don Stemen

In the American criminal justice system, prosecuting attorneys arguably enjoy broader discretion than any other system actor. Research, however, is beginning to show that prosecutorial discretion is not nearly as unconstrained as initially thought. Relying on in-depth interviews and surveys of prosecutors in two large urban/suburban county prosecutors’ offices, this article examines prosecutors’ decision making processes, exploring internal and external, formal and informal mechanisms that regulate prosecutors’ decision making. We find that prosecutorial discretion is constrained by several factors. Internal rules or policies within the prosecutor’s office often determine whether a case is accepted or rejected for prosecution, what the …

Separate But Equal: Miranda’S Rights To Silence And Counsel, Steven Grossman

Steven Grossman

Three decades ago, the Supreme Court created a dubious distinction between the rights accorded to suspects in custody who invoke their right to silence and those asking for counsel. This distinction significantly disadvantages those who do not have the good sense or good fortune to specify they want an attorney when they invoke their right to remain silent. This article argues that this distinction was flawed at its genesis and that it has led to decisions which are inconsistent, make little sense and permit police behavior that substantially diminishes the right to silence as described in Miranda v. Arizona. It …

Separate But Equal: Miranda’S Rights To Silence And Counsel, Steven Grossman

Steven Grossman

Three decades ago, the Supreme Court created a dubious distinction between the rights accorded to suspects in custody who invoke their right to silence and those asking for counsel. This distinction significantly disadvantages those who do not have the good sense or good fortune to specify they want an attorney when they invoke their right to remain silent. This article argues that this distinction was flawed at its genesis and that it has led to decisions which are inconsistent, make little sense and permit police behavior that substantially diminishes the right to silence as described in Miranda v. Arizona. It …

Rules, Resources, And Relationships: Contextual Constraints On Prosecutorial Decision Making, Don Stemen, Bruce Frederick

Don Stemen

In the American criminal justice system, prosecuting attorneys arguably enjoy broader discretion than any other system actor. Research, however, is beginning to show that prosecutorial discretion is not nearly as unconstrained as initially thought. Relying on in-depth interviews and surveys of prosecutors in two large urban/suburban county prosecutors’ offices, this article examines prosecutors’ decision making processes, exploring internal and external, formal and informal mechanisms that regulate prosecutors’ decision making. We find that prosecutorial discretion is constrained by several factors. Internal rules or policies within the prosecutor’s office often determine whether a case is accepted or rejected for prosecution, what the …

Taking A Stand On Taking The Stand: The Effect Of A Prior Criminal Record On The Decision To Testify And On Trial Outcomes, Theodore Eisenberg, Valerie P. Hans

Valerie P. Hans

This article uses unique data from over 300 criminal trials in four large counties to study the relations between the existence of a prior criminal record and defendants testifying at trial, between testifying at trial and juries' learning about a criminal record, and between juries' learning about a criminal record and their decisions to convict or acquit. Sixty percent of defendants without criminal records testified compared to 45 percent with criminal records. For testifying defendants with criminal records, juries learned of those records in about half the cases. Juries rarely learned about criminal records unless defendants testified. After controlling for …

Suspicionless Searches Of Public School Students: An Empirical Legal Analysis, Jason P. Nance

Jason P. Nance

This Article presents an original empirical legal analysis of recent data from the U.S. Department of Education’s School Survey on Crime and Safety. The results of the analysis suggest that many public schools are violating students’ civil rights by conducting suspicionless, intrusive searches without valid justifications, such as having particularized evidence of a drug or weapons problem. Furthermore, the data indicate that many school officials may be using illegitimate criteria – most notably race – to determine whether to conduct those searches. For example, in schools that did not report any student violations relating to weapons, alcohol or drugs during …

Outing-- And Ousting-- The "Hidden" Hyde: Toward Repeal And Replacement Of The Hyde Amendment, Rebecca Stewart

Rebecca K Stewart

Poorly crafted statutes have always created interpretive quandaries for judges and litigants, and these problems naturally tend to be exacerbated when substantive legislation is passed as a result of less than substantive legislative processes, such as through limitations riders to appropriations bills. However, these issues become vastly more troublesome when Congress intentionally subverts measures intended to restrain such processes. This Article examines the passage of one such rider, commonly known as the Hyde Amendment, exploring its origins and curious subtextual codification, and analyzing its life in the federal courts over more than a dozen years.

The Article argues that early …

Mexico's Crisis: When There's A Will, There's A Way, Melanie M. Reid

Melanie M. Reid

The United States under the Obama administration is committed to many of the tools being advocated in Mexican President Felipe Calderón’s holistic approach to combat drug trafficking. This Article explores the United States’ Merida Initiative policy and critiques its effectiveness. The Beyond Merida Initiative announced in 2010 revamped the prior 2007 initiatives, and provided more emphasis on additional training rather than equipment or direct financial aid to Mexico. Neither initiative corrects problems endemic to Mexico which limits the possibility of success. Corruption, anti-American resentment, and a drastically different legal system in Mexico hinder our efforts to become an effective ally …

Legally Blind: Hyperadversarialism, Brady Violations, And The Prosecutorial Organizational Culture, Hadar Aviram

Hadar Aviram

Recently, in Connick v. Thompson (2011), the Supreme Court held that the failure of several prosecutors to disclose to the defense the blood type of the perpetrator, which did not match the defendant’s blood type, was not a systematic defect that required training of staff. According to the Court the prosecutors’ misconduct, and lack of training in Brady discovery duties, did not constitute “deliberate indifference” by the municipality, which would have entitled the exonerated defendant to relief under §1983. This Article criticizes the decision--and Brady policies in general—for their narrowness and excessive reliance on indications of intent or bad faith. …

A Constitutional Theory Of Habeas Power, Lee B. Kovarsky

Lee Kovarsky

Modern habeas corpus law generally favors an idiom of individual rights, but the Great Writ’s central feature is judicial power. Throughout the seventeenth-century English Civil Wars, the Glorious Revolution, and the war in the American colonies, the habeas writ was a means by which judges consolidated authority over the question of what counted as “lawful” custody. Of course, the American Framers did not simply copy the English writ—they embedded it in a Constitutional system of separated powers and dual sovereignty. “A Constitutional Theory of Habeas Power” is an inquiry into the newly-minted principle that the federal Constitution guarantees some quantum …

Suspicionless Searches Of Public School Students: An Empirical Legal Analysis, Jason P. Nance

Jason P. Nance

This Article presents an original empirical legal analysis of recent data from the U.S. Department of Education’s School Survey on Crime and Safety. The results of the analysis suggest that many public schools are violating students’ civil rights by conducting suspicionless, intrusive searches without valid justifications, such as having particularized evidence of a drug or weapons problem. Furthermore, the data indicate that many school officials may be using illegitimate criteria – most notably race – to determine whether to conduct those searches. For example, in schools that did not report any student violations relating to weapons, alcohol or drugs during …

Cruel And Unusual Federal Punishments, Michael Mannheimer

Michael J.Z. Mannheimer

Virtually all federal defendants who have challenged their sentences as “cruel and unusual punishment” in violation of the Eighth Amendment have failed. This is because the Supreme Court’s jurisprudence on cruel and unusual carceral punishments is extraordinarily deferential to legislative judgments about how harsh prison sentences ought to be for particular crimes. This deferential approach stems largely from concerns of federalism, for all of the Court’s modern cases on the Cruel and Unusual Punishments Clause have addressed state, not federal, sentencing practices. Thus, they have addressed the Eighth Amendment only as incorporated by the Fourteenth. Federal courts accordingly find themselves …

Vulnerability And Desert: A Theory Of Sentencing The Mentally Ill, Lea Johnston

E. Lea Johnston

This Article analyzes risks of harm posed to prisoners with serious mental illnesses and asks whether, and how, sentencing theory should take these risks into account. Drawing upon social science research, the Article first establishes that offenders with major mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience exacerbation of mental illness during their terms of confinement. This Article represents the first major effort in the legal literature to collect and analyze psychological studies bearing on the increased risk of harm faced by this population. After offering a …

Suspicionless Searches Of Public School Students: An Empirical Legal Analysis, Jason P. Nance

Jason P. Nance

This Article presents an original empirical legal analysis of recent data from the U.S. Department of Education’s School Survey on Crime and Safety. The results of the analysis suggest that many public schools are violating students’ civil rights by conducting suspicionless, intrusive searches without valid justifications, such as having particularized evidence of a drug or weapons problem. Furthermore, the data indicate that many school officials may be using illegitimate criteria – most notably race – to determine whether to conduct those searches. For example, in schools that did not report any student violations relating to weapons, alcohol or drugs during …

When The Emperor Has No Clothes Iii: Personnel Policies And Conflicts Of Interest In Prosecutors’ Offices, Carrie Leonetti

Carrie Leonetti

This Article examines and evaluates an alternate cause of overcharging, one that has not received much attention from courts or in the scholarly literature: the extent to which internal personnel policies in prosecutors’ offices create incentives to overcharge. The number and seriousness of convictions and the amount of punishment are the basic standards by which the success of prosecutors is measured. In order to curb overcharging and other forms of prosecutorial misconduct, courts should disqualify prosecutors whose offices explicitly or implicitly determine their job status, compensation, or advancement on the basis of their conviction or sentencing record on the ground …

When The Emperor Has No Clothes Iii: Personnel Policies And Conflicts Of Interest In Prosecutors’ Offices, Carrie Leonetti

Carrie Leonetti

This Article examines and evaluates an alternate cause of overcharging, one that has not received much attention from courts or in the scholarly literature: the extent to which internal personnel policies in prosecutors’ offices create incentives to overcharge. The number and seriousness of convictions and the amount of punishment are the basic standards by which the success of prosecutors is measured. In order to curb overcharging and other forms of prosecutorial misconduct, courts should disqualify prosecutors whose offices explicitly or implicitly determine their job status, compensation, or advancement on the basis of their conviction or sentencing record on the ground …

Cruel And Unusual Federal Punishments, Michael J.Z. Mannheimer

Michael J.Z. Mannheimer

Virtually all federal defendants who have challenged their sentences as “cruel and unusual punishment” in violation of the Eighth Amendment have failed. This is because the Supreme Court’s jurisprudence on cruel and unusual carceral punishments is extraordinarily deferential to legislative judgments about how harsh prison sentences ought to be for particular crimes. This deferential approach stems largely from concerns of federalism, for all of the Court’s modern cases on the Cruel and Unusual Punishments Clause have addressed state, not federal, sentencing practices. Thus, they have addressed the Eighth Amendment only as incorporated by the Fourteenth. Federal courts accordingly find themselves …

Brass Rings And Red-Headed Stepchildren: Protecting Active Criminal Informants, Michael L. Rich

Michael L Rich

Informants are valued law enforcement tools, and active criminal informants – criminals who maintain their illicit connections and feed evidence to the police in exchange for leniency – are the most prized of all. Yet society does little to protect active criminal informants from the substantial risks inherent in their recruitment and cooperation. As I have explored elsewhere, society’s apathy toward these informants is a result of distaste with their disloyalty and a concern that protecting them will undermine law enforcement effectiveness. This Article takes a different tack, however, building on existing scholarship on vulnerability and paternalism to argue that …

Promoting Social Change In Asia And The Pacific: The Need For A Disability Rights Tribunal To Give Life To The Un Convention On The Rights Of Persons With Disabilities, Michael L. Perlin

Michael L Perlin

ABSTRACT

There is no question that the existence of regional human rights courts and commissions has been an essential element in the enforcement of international human rights in those regions of the world where such tribunals exist. In the specific area of mental disability law, there is now a remarkably robust body of case law from the European Court on Human Rights, some significant and transformative decisions from the Inter-American Commission on Human Rights, and at least one major case from the African Commission on Human Rights.

In Asia and the Pacific region, however, there is no such body. Although …

A Judicial David Versus Goliath: Prohibiting Capital Defendants From Proceeding Pro Se, Jonathan Z. Desantis

Jonathan Z DeSantis

This Article contends that capital defendants should be prohibited from proceeding pro se. The Article addresses the innate difficulties a self-represented capital defendant will experience while preparing for his or her trial, particularly if he or she is incarcerated. The paper then explores the troubling relationship between self-representation and capital punishment and opines that a capital trial with a pro se defendant cannot satisfy the "heightened reliability" the United States Supreme Court demands for capital proceedings. The Article states that existing case law allows a per se limitation of the constitutional right to self-representation barring capital defendants from proceeding pro …

Prosecution Appeals Of Court-Ordered Midtrial Acquittals: Permissible Under The Double Jeopardy Clause?, David Rudstein

David S Rudstein

This article considers whether a statute or rule of court allowing the prosecution to appeal a directed verdict of not guilty, or its equivalent, would be constitutional under the Double Jeopardy Clause.

Criminal Procedure: The Investigative Process, 2d Ed., David Rudstein

David S Rudstein

No abstract provided.

No Walk In The Dog Park: Drafting Animal Cruelty Statutes To Resolve Double Jeopardy Concerns And Eliminate Unfettered Prosecutorial Discretion, Laurie Serafino

Laurie B. Serafino

This article evaluates animal abuse and cruelty laws throughout the United States. It demonstrates that, although an emerging trend treats animals more like humans and less like property in some criminal cases and statutes, the laws of many states still adhere to the traditional view of animals as property, causing unique charging and sentencing issues that must be clarified in order to bring predictability and consistency to the law.

In the article, Professor Serafino explores the option of creating a new paradigm in this area, in which animals are treated as a hybrid category of "living property," "legal personhood," or …

Legally Blind: Hyperadversarialism, Brady Violations, And The Prosecutorial Organizational Culture, Hadar Aviram

Hadar Aviram

Recently, in Connick v. Thompson (2011), the Supreme Court held that the failure of several prosecutors to disclose to the defense the blood type of the perpetrator, which did not match the defendant’s blood type, was not a systematic defect that required training of staff. According to the Court the prosecutors’ misconduct, and lack of training in Brady discovery duties, did not constitute “deliberate indifference” by the municipality, which would have entitled the exonerated defendant to relief under §1983. This Article criticizes the decision--and Brady policies in general—for their narrowness and excessive reliance on indications of intent or bad faith. …

Prosecution Appeals Of Court-Ordered Midtrial Acquittals: Permissible Under The Double Jeopardy Clause?, David Rudstein

David S Rudstein

No abstract provided.

Sex Trafficking And Worker Justice, Michelle Dempsey

Michelle Madden Dempsey

This essay argues that the dualistic conception of work in Catholic social teaching – most notably in John Paul II’s Laborem Excerens – may provide a bridge between otherwise deeply divided views regarding how to conceptualize and define sex trafficking.

The Immigrant And Miranda, Anjana Malhotra

Anjana Malhotra

The recent dramatic convergence of immigration and criminal law is transforming the immigration and criminal justice system. While scholars have begun to examine some of the structural implications of this convergence, this article breaks new ground by examining judicial responses, and specifically the sharply divergent approaches that federal appellate courts have used to determine whether Miranda warnings must be given to immigrants during custodial interrogations about their immigration status that have both criminal and civil implications.

Two Truths And A Lie: In Re John Z. And Other Stories At The Juncture Of Teen Sex & The Law, Michelle Oberman

Michelle Oberman

Laws governing adolescent sexuality are incoherent and chaotically enforced, and legal scholarship on the subject neither addresses nor remedies adolescents’ vulnerability in sexual encounters. To posit a meaningful relationship between the criminal law and adolescent sexual encounters, one must examine what we know about adolescent sexuality from both the academic literature and the adults who control the criminal justice response to such interactions. This article presents an in-depth study of In re John Z., a 2003 rape prosecution involving two seventeen-year-olds. Using this case, I explore the implications of the prosecution by interviewing a variety of experts and analyzing the …

When Does Restitution Become Retribution?, Melanie M. Reid, Curtis L. Collier Hon.

Melanie M. Reid

A defendant, charged with knowingly possessing material that contains images of child pornography which has been transported in interstate commerce by means of a computer, in violation 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2), needs to be aware that he may be hit with a large restitution order at the time of his sentencing. At sentencing, the court not only sentences the defendant to a term of imprisonment, supervised release, and assessment, but also orders an amount of restitution to be paid to the identified victims of the child pornography. This restitution order must comply with 18 U.S.C. § 2259 which …