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Criminal Procedure

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Articles 1 - 30 of 143

Full-Text Articles in Law

The Miranda Custody Requirement And Juveniles, Paul Marcus Sep 2019

The Miranda Custody Requirement And Juveniles, Paul Marcus

Paul Marcus

Concerns about the interrogation process and the ability of minors to navigate the criminal justice system often intersect. The impact of the age of juveniles can be seen in a variety of judicial decisions, most markedly those dealing with punishment. But judicial concern for juveniles goes well beyond sentencing. The interrogation process raises especially grave fears.

Since the Supreme Court issued its landmark ruling in Miranda v. Arizona disallowing compelled inculpatory statements by criminal suspects and defendants, there has been concern as to whether juveniles fully understand and appreciate their rights as articulated in Miranda and based in the Fifth ...


The Crisis In Indigent Defense: A National Perspective, Mary Sue Backus, Paul Marcus Sep 2019

The Crisis In Indigent Defense: A National Perspective, Mary Sue Backus, Paul Marcus

Paul Marcus

No abstract provided.


State Constitutional Protection For Defendants In Criminal Prosecutions, Paul Marcus Sep 2019

State Constitutional Protection For Defendants In Criminal Prosecutions, Paul Marcus

Paul Marcus

No abstract provided.


Proving Entrapment Under The Predisposition Test, Paul Marcus Sep 2019

Proving Entrapment Under The Predisposition Test, Paul Marcus

Paul Marcus

No abstract provided.


Judges Talking To Jurors In Criminal Cases: Why U.S. Judges Do It So Differently From Just About Everyone Else, Paul Marcus Sep 2019

Judges Talking To Jurors In Criminal Cases: Why U.S. Judges Do It So Differently From Just About Everyone Else, Paul Marcus

Paul Marcus

No abstract provided.


Defending Conspiracy Cases: Mission Impossible?, Paul Marcus Sep 2019

Defending Conspiracy Cases: Mission Impossible?, Paul Marcus

Paul Marcus

Defending conspiracy cases has never been an easy task. There were days in which joint trials of 20, 30, 40, or even 50 defendants were not uncommon, creating insuperable problems for defense lawyers. Even though large joint-defendant trials are not as common today, several problems remain, particularly in light of the frequent use of the conspiracy charge at the federal level. In this article I will discuss some of the recent issues which create special difficulties for criminal defense lawyers. With regard to these issues, there is, as some would say, good news and bad news.


Criminal Justice Reforms In The United States, Paul Marcus Sep 2019

Criminal Justice Reforms In The United States, Paul Marcus

Paul Marcus

No abstract provided.


Aveux Incités Par Les Officiers Chargés De L’Application De La Loi, L’Expérience Des Etats-Unis, Paul Marcus Sep 2019

Aveux Incités Par Les Officiers Chargés De L’Application De La Loi, L’Expérience Des Etats-Unis, Paul Marcus

Paul Marcus

No abstract provided.


Australia And The United States: Two Common Criminal Justice Systems Uncommonly At Odds, Paul Marcus, Vicki Waye Sep 2019

Australia And The United States: Two Common Criminal Justice Systems Uncommonly At Odds, Paul Marcus, Vicki Waye

Paul Marcus

At first glance the criminal justice systems of Australia and the United States look strikingly similar. With common law roots from England, they both emphasize the adversary system, the roleof the advocate, the presumption of innocence, and an appeals process. Upon closer reflection,however, they appear starkly different. From both Australian and U.S. perspectives, the authorsexplore those differences, examining important features such as the exclusion of evidence, rules regarding interrogation, the entrapment defense, and the open nature of trials. The Article concludes with an analysis of the reasons for those differences, reasons that heavily relate back to the founding ...


The Availability Of A First Appearance And Preliminary Hearing - Now You See Them, Now You Don't, Linda A. Malone Sep 2019

The Availability Of A First Appearance And Preliminary Hearing - Now You See Them, Now You Don't, Linda A. Malone

Linda A. Malone

No abstract provided.


The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants, Adam M. Gershowitz, Laura R. Killinger Sep 2019

The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants, Adam M. Gershowitz, Laura R. Killinger

Laura R. Killinger

No abstract provided.


Seeking Inconsistency: Advancing Pluralism In International Criminal Sentencing, Nancy Amoury Combs Sep 2019

Seeking Inconsistency: Advancing Pluralism In International Criminal Sentencing, Nancy Amoury Combs

Nancy Combs

No abstract provided.


Procuring Guilty Pleas For International Crimes: The Limited Influence Of Sentencing Discounts, Nancy Amoury Combs Sep 2019

Procuring Guilty Pleas For International Crimes: The Limited Influence Of Sentencing Discounts, Nancy Amoury Combs

Nancy Combs

International tribunals prosecuting those responsible for genocide, crimes against humanity, and war crimes face many of the same resource constraints that bedevil national criminal justice systems. Consequently, international tribunals have begun to utilize various procedural devices long used by national prosecutors to speed case dispositions. One such procedural device is the guilty plea. National prosecutors induce criminal defendants to plead guilty and waive their rights to trial through a process of plea bargaining; that is, by offering defendants sentencing concessions in exchange for their guilty pleas. International prosecutors who seek to engage in plea bargaining, however, face a host of ...


International Criminal Jurisprudence Comes Of Age: The Substance And Procedure Of An Emerging Discipline, Nancy Amoury Combs Sep 2019

International Criminal Jurisprudence Comes Of Age: The Substance And Procedure Of An Emerging Discipline, Nancy Amoury Combs

Nancy Combs

No abstract provided.


International Decisions: Prosecutor V. Plavsic, Nancy Amoury Combs Sep 2019

International Decisions: Prosecutor V. Plavsic, Nancy Amoury Combs

Nancy Combs

No abstract provided.


Grave Crimes And Weak Evidence: Fact-Finding Evolution In International Criminal Law, Nancy Amoury Combs Sep 2019

Grave Crimes And Weak Evidence: Fact-Finding Evolution In International Criminal Law, Nancy Amoury Combs

Nancy Combs

International criminal courts carry out some of the most important work that a legal system can conduct: prosecuting those who have visited death and destruction on millions. Despite the significance of their work--or perhaps because of it--international courts face tremendous challenges. Chief among them is accurate fact-finding. With alarming regularity, international criminal trials feature inconsistent, vague, and sometimes false testimony that renders judges unable to assess with any measure of certainty who did what to whom in the context of a mass atrocity. This Article provides the first-ever empirical study quantifying fact-finding in an international criminal court. The study shines ...


"Fact-Finding Without Facts": A Conversation With Nancy Combs, Nancy Amoury Combs Sep 2019

"Fact-Finding Without Facts": A Conversation With Nancy Combs, Nancy Amoury Combs

Nancy Combs

No abstract provided.


What We Should Learn From Garner And Ferguson Cases, Jeffrey Bellin Sep 2019

What We Should Learn From Garner And Ferguson Cases, Jeffrey Bellin

Jeffrey Bellin

No abstract provided.


The Significance (If Any) For The Federal Criminal Justice System Of Advances In Lie Detector Technology, Jeffrey Bellin Sep 2019

The Significance (If Any) For The Federal Criminal Justice System Of Advances In Lie Detector Technology, Jeffrey Bellin

Jeffrey Bellin

Against a backdrop of accelerating developments in the science of lie detection certain to reopen the debate on the reliability and therefore admissibility of lie detector evidence in the federal courts, this Article examines whether the prohibition on hearsay evidence (or other evidentiary objections) will preclude admissibility of even scientifically reliable lie detector evidence. The Article concludes that the hearsay prohibition, which has been largely ignored by courts and commentators, is the primary obstacle to the future admission of scientifically valid lie detector evidence. The Article also suggests a potential solution to the hearsay problem that may allow admission of ...


The Incredible Shrinking Confrontation Clause, Jeffrey Bellin Sep 2019

The Incredible Shrinking Confrontation Clause, Jeffrey Bellin

Jeffrey Bellin

Sharp turns in the Supreme Court’s recent Confrontation Clause jurisprudence have left scholars reeling from conflicting emotions: exhilaration, despair, denial, and soon, perhaps, cynical acceptance. While most commentators celebrated the demise of the incoherent Ohio v. Roberts framework, their excitement largely faded as the Court’s decisions in Davis v. Washington and Bryant v. Michigan revealed nascent flaws in the evolving doctrine and sharply curtailed the newly revitalized confrontation right.

Recent scholarship strives to reanimate the jurisprudence by expanding the doctrinal definition of “testimonial” statements – the sole form of evidence that the Court now recognizes as implicating the Confrontation ...


Is Punishment Relevant After All? A Prescription For Informing Juries Of The Consequence Of Conviction, Jeffrey Bellin Sep 2019

Is Punishment Relevant After All? A Prescription For Informing Juries Of The Consequence Of Conviction, Jeffrey Bellin

Jeffrey Bellin

The American jury, once heralded as “the great corrective of law in its actual administration,” has suffered numerous setbacks in the modern era. As a result, jurors have largely become bystanders in a criminal justice system that relies on increasingly severe punishments to incarcerate tens of thousands of offenders each year. The overwhelming majority of cases are resolved short of trial and, even when trials occur, jurors are instructed to find only the facts necessary for legal guilt. Apart from this narrow task, jurors need not, in the eyes of the law, concern themselves with whether a conviction and subsequent ...


Circumventing Congress: How The Federal Courts Opened The Door To Impeaching Criminal Defendants With Prior Convictions, Jeffrey Bellin Sep 2019

Circumventing Congress: How The Federal Courts Opened The Door To Impeaching Criminal Defendants With Prior Convictions, Jeffrey Bellin

Jeffrey Bellin

This Article spotlights the flawed analytical framework at the heart of the federal courts’ approach to one of the most controversial trial practices in American criminal jurisprudence — the admission of prior convictions to impeach the credibility of defendants who testify. As the Article explains, the flawed approach is a byproduct of the courts’ reliance on a five-factor analytical framework to implement the governing legal standard enacted by Congress in Federal Rule of Evidence 609. Tracing the evolution of the fivefactor framework from its roots in pre-Rule 609 case law, the Article demonstrates that the courts’ reinterpretation of the framework in ...


Applying Crawford's Confrontation Right In A Digital Age, Jeffrey Bellin Sep 2019

Applying Crawford's Confrontation Right In A Digital Age, Jeffrey Bellin

Jeffrey Bellin

No abstract provided.


A First Step Towards Sentencing Reform, Jeffrey Bellin Sep 2019

A First Step Towards Sentencing Reform, Jeffrey Bellin

Jeffrey Bellin

No abstract provided.


The Wire As A Gap-Filling Class On Criminal Law And Procedure, Adam M. Gershowitz Sep 2019

The Wire As A Gap-Filling Class On Criminal Law And Procedure, Adam M. Gershowitz

Adam M. Gershowitz

No abstract provided.


The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants, Adam M. Gershowitz, Laura R. Killinger Sep 2019

The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants, Adam M. Gershowitz, Laura R. Killinger

Adam M. Gershowitz

No abstract provided.


Prosecutorial Shaming: Naming Attorneys To Reduce Prosecutorial Misconduct, Adam M. Gershowitz Sep 2019

Prosecutorial Shaming: Naming Attorneys To Reduce Prosecutorial Misconduct, Adam M. Gershowitz

Adam M. Gershowitz

This Article explores the unfortunately large number of instances in which appellate courts reverse convictions for serious prosecutorial misconduct but do not identify the names of the prosecutors who committed that misconduct. Because judges are reluctant to publicly shame prosecutors whose cases are reversed, this Article advocates that a neutral set of third parties undertake the responsibility of publicly identifying prosecutors who have committed serious misconduct. The naming of prosecutors will shame bad actors, provide a valuable pedagogical lesson for junior prosecutors, and signal to trial judges that certain prosecutors must be monitored more closely to avoid future misconduct.


Raise The Proof: A Default Rule For Indigent Defense, Adam M. Gershowitz Sep 2019

Raise The Proof: A Default Rule For Indigent Defense, Adam M. Gershowitz

Adam M. Gershowitz

Almost everyone agrees that indigent defense in America is underfunded, but workable solutions have been hard to come by. For the most part, courts have been unwilling to inject themselves into legislative budget decisions. And, when courts have become involved and issued favorable decisions, the benefits have been only temporary because once the pressure of litigation disappears so does a legislature's desire to appropriate more funding. This Article proposes that if an indigent defense system is under-funded, the state supreme court should impose a default rule raising the standard of proof to "beyond all doubt" to convict indigent defendants ...


Pay Now, Execute Later: Why Counties Should Be Required To Post A Bond To Seek The Death Penalty, Adam M. Gershowitz Sep 2019

Pay Now, Execute Later: Why Counties Should Be Required To Post A Bond To Seek The Death Penalty, Adam M. Gershowitz

Adam M. Gershowitz

No abstract provided.


Imposing A Cap On Capital Punishment, Adam M. Gershowitz Sep 2019

Imposing A Cap On Capital Punishment, Adam M. Gershowitz

Adam M. Gershowitz

No abstract provided.