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Criminal Procedure

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Articles 31 - 60 of 143

Full-Text Articles in Law

Justice On The Line: Prosecutorial Screening Before Arrest, Adam M. Gershowitz Sep 2019

Justice On The Line: Prosecutorial Screening Before Arrest, Adam M. Gershowitz

Adam M. Gershowitz

Police make more than eleven million arrests every year. Yet prosecutors dismiss about 25% of criminal charges with no conviction being entered. Needless arrests are therefore clogging the criminal justice system and harming criminal defendants. For instance, Freddie Gray was fatally injured in police custody after being arrested for possession of a switchblade knife. Prosecutors later announced, however, that they did not believe the knife was actually illegal. If prosecutors had to approve warrantless arrests before police could take suspects into custody, Freddie Gray would still be alive. Yet prosecutors’ offices almost never dictate who the police should or should ...


Is Texas Tough On Crime But Soft On Criminal Procedure?, Adam M. Gershowitz Sep 2019

Is Texas Tough On Crime But Soft On Criminal Procedure?, Adam M. Gershowitz

Adam M. Gershowitz

Although Texas is well known for imposing tough punishments on convicted defendants, it is surprisingly generous in affording criminal procedure protections. In a variety of areas, including search and seizure rules, confession requirements, the availability of bail, prosecutorial discovery obligations, and jury trial guarantees, Texas affords protections vastly in excess of what is required by the United States Constitution. Even more shocking, these criminal procedure guarantees come almost entirely from Texas statutes approved by the legislature, not activist rules imposed by judges. This Article explores Texas's reputation as a tough-on-crime state and the seeming inconsistency between Texas being tough ...


Get In The Game Or Get Out Of The Way: Fixing The Politics Of Death, Adam M. Gershowitz Sep 2019

Get In The Game Or Get Out Of The Way: Fixing The Politics Of Death, Adam M. Gershowitz

Adam M. Gershowitz

No abstract provided.


Delaware's Capital Jury Selection: Inadequate Voir Dire And The Problem Of Automatic Death Penalty Jurors, Adam M. Gershowitz Sep 2019

Delaware's Capital Jury Selection: Inadequate Voir Dire And The Problem Of Automatic Death Penalty Jurors, Adam M. Gershowitz

Adam M. Gershowitz

No abstract provided.


Particularism, Telishment, And Three Strikes Laws, Michael S. Green Sep 2019

Particularism, Telishment, And Three Strikes Laws, Michael S. Green

Michael S. Green

No abstract provided.


Capital Murder Symposium: Policy Panel, Davison M. Douglas, Richard Dieter Sep 2019

Capital Murder Symposium: Policy Panel, Davison M. Douglas, Richard Dieter

Davison M. Douglas

This symposium looked at capital murder prosecutions, mainly in Virginia, from both a practice standpoint and a policy standpoint. This is the final session, the Policy Panel that addressed if and when the death penalty should be imposed..


Deciding When To Decide: How Appellate Procedure Distributes The Costs Of Legal Change, Aaron-Andrew P. Bruhl Sep 2019

Deciding When To Decide: How Appellate Procedure Distributes The Costs Of Legal Change, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

Legal change is a fact of life, and the need to deal with it has spawned a number of complicated bodies of doctrine. Some aspects of the problem of legal change have been studied extensively, such as doctrines concerning the retroactivity of new law and the question whether inferior courts can anticipatorily overrule a moribund superior court precedent. How such questions are answered affects the size and the distribution of the costs of legal change. Less appreciated is the way that heretofore almost invisible matters of appellate procedure and case handling also allocate the costs of legal transitions. In particular ...


Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez Dec 2017

Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

In Birchfield v. North Dakota (2016), the Supreme Court broke new Fourth Amendment ground by establishing that law enforcement’s collection of information can be cause for “anxiety,” meriting constitutional protection, even if subsequent uses of the information are tightly restricted.  This change is significant.  While the Court has long recognized the reality that police cannot always be trusted to follow constitutional rules, Birchfield changes how that concern is implemented in Fourth Amendment law, and importantly, in a manner that acknowledges the new realities of data-driven policing.
 
Beyond offering a careful reading of Birchfield, this Article has two goals.  First ...


The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke Nov 2017

The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke

Anthony O'Rourke

Criminal procedure has undergone several well-documented shifts in its doctrinal foundations since the Supreme Court first began to apply the Constitution’s criminal procedure protections to the States. This Article examines the ways in which the political economy of criminal litigation – specifically, the material conditions that determine which litigants are able to raise criminal procedure claims, and which of those litigants’ cases are appealed to the United States Supreme Court – has influenced these shifts. It offers a theoretical framework for understanding how the political economy of criminal litigation shapes constitutional doctrine, according to which an increase in the number of ...


Prisoner's Rights And The Correctional Scheme: The Legal Controversy And Problems Of Implementation - A Symposium - Introduction, Donald W. Dowd Jun 2017

Prisoner's Rights And The Correctional Scheme: The Legal Controversy And Problems Of Implementation - A Symposium - Introduction, Donald W. Dowd

Donald W. Dowd

No abstract provided.


Criminal Procedure And The Conflict Of Laws, John Bernard Corr Jun 2017

Criminal Procedure And The Conflict Of Laws, John Bernard Corr

John (Bernie) Corr

No abstract provided.


Criminal Procedure And The Conflict Of Laws, John Bernard Corr Jun 2017

Criminal Procedure And The Conflict Of Laws, John Bernard Corr

John (Bernie) Corr

No abstract provided.


Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky Jun 2017

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.


Training For Bargaining, Jenny Roberts, Ronald F. Wright Nov 2016

Training For Bargaining, Jenny Roberts, Ronald F. Wright

Jenny Roberts

While plea bargaining dominates the practice of criminal law, preparation for trial remains central to defense attorneys’ training. Negotiation is still peripheral to that training. Defense lawyers enter practice with little exposure to negotiation techniques and strategies in the plea bargaining context, the most significant skills they will use every day. Empirical research on plea negotiations has concentrated on outcomes of negotiations rather than the process itself. Our multiphase field study examines the negotiation techniques that attorneys use during plea bargaining as well as their preparation and training for negotiation. This Article explores the data on the training aspects of ...


Science, Public Bioethics, And The Problem Of Integration, O. Carter Snead Aug 2016

Science, Public Bioethics, And The Problem Of Integration, O. Carter Snead

O. Carter Snead

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decision making. It has captured the attention of officials in every branch of government, as well as the American public itself. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decision making) continue to roil the public square. This Article examines the question of how scientific methods and principles can ...


The Briseno Dilemma, T. Alper, S. Rudenstine Aug 2016

The Briseno Dilemma, T. Alper, S. Rudenstine

Ty Alper

No abstract provided.


The Briseno Dilemma, T. Alper, S. Rudenstine Aug 2016

The Briseno Dilemma, T. Alper, S. Rudenstine

Ty Alper

No abstract provided.


Veteran Police Officers And Three-Dollar Steaks: The Subjective/Objective Dimensions Of Probable Cause And Reasonable Suspicion, Kit Kinports Jan 2016

Veteran Police Officers And Three-Dollar Steaks: The Subjective/Objective Dimensions Of Probable Cause And Reasonable Suspicion, Kit Kinports

Kit Kinports

This Article addresses two issues surrounding probable cause and reasonable suspicion that test the line between subjective and objective standards in Fourth Amendment jurisprudence: the extent to which a particular police officer’s training and experience ought to be considered in measuring probable cause and reasonable suspicion, and the relevance of the officer’s subjective beliefs about the presence of a weapon in assessing the reasonable suspicion required to justify a frisk. Although both questions have split the lower courts and remain unresolved by the Supreme Court, the majority of courts treat them inconsistently, recognizing the importance of an officer ...


Diminishing Probable Cause And Minimalist Searches, Kit Kinports Jan 2016

Diminishing Probable Cause And Minimalist Searches, Kit Kinports

Kit Kinports

This paper comments on recent Supreme Court opinions that have used phrases such as "reasonable belief" and "reason to believe" when analyzing intrusions that generally require proof of probable cause. Historically, the Court used these terms as shorthand references for both probable cause and reasonable suspicion. While this lack of precision was unobjectionable when the concepts were interchangeable, that has not been true since Terry v. Ohio created a distinction between the two standards. When the Justices then resurrect these terms without situating them in the dichotomy between probable cause and reasonable suspicion, it is not clear whether they are ...


Moving Beyond Miranda: Concessions For Confessions, Scott Howe Dec 2015

Moving Beyond Miranda: Concessions For Confessions, Scott Howe

Scott W. Howe

Abstract: The law governing police interrogation provides perverse incentives. For criminal suspects, the law rewards obstruction and concealment. For police officers, it honors deceit and psychological aggression. For the courts and the rest of us, it encourages blindness and rationalization. This Article contends that the law could help foster better behaviors. The law could incentivize criminals to confess without police trickery and oppression. It could motivate police officers involved in obtaining suspect statements to avoid chicanery and duress. And, it could summon courts and the rest of us to speak more truthfully about whether suspect admissions are the product of ...


The French Case For Requiring Juries To Give Reasons. Safeguarding Defendants Or Guarding The Judges?, Mathilde Cohen Dec 2015

The French Case For Requiring Juries To Give Reasons. Safeguarding Defendants Or Guarding The Judges?, Mathilde Cohen

Mathilde Cohen

This chapter provides a descriptive and analytical examination of the requirement for lay jurors to give reasons for their decisions.  In the 2010 case of Taxquet v. Belgium, the European Court of Human Right announced a new right for criminal defendants “to understand verdicts.”  This jurisprudence has prompted a number of Council of Europe countries to overhaul their criminal procedure, including France, which now requires that its mixed courts, in which professional and lay judges deliberate collectively, justify their decisions on guilt or innocence.  Descriptively, the chapter presents the Strasbourg court’s position as well as the French response to ...


Form And Function In The Chinese Criminal Process, Stanley Lubman Dec 2015

Form And Function In The Chinese Criminal Process, Stanley Lubman

Stanley Lubman

Thesis (LL.D.)--Columbia university.


Quasi-Affirmative Rights In Constitutional Criminal Procedure, David Sklansky Dec 2015

Quasi-Affirmative Rights In Constitutional Criminal Procedure, David Sklansky

David A Sklansky

No abstract provided.


Panelist, Wrongful Conviction And The Dna Revolution: 25 Years Of Freeing The Innocent, Robert Bloom Sep 2015

Panelist, Wrongful Conviction And The Dna Revolution: 25 Years Of Freeing The Innocent, Robert Bloom

Robert M. Bloom

No abstract provided.


Social-Network Theory And The Diffusion Of The Search-And-Seizure Exclusionary Rule Among State Courts Between Weeks And Wolf, Laurence A. Benner, Robert Bird, Donald J. Smythe May 2015

Social-Network Theory And The Diffusion Of The Search-And-Seizure Exclusionary Rule Among State Courts Between Weeks And Wolf, Laurence A. Benner, Robert Bird, Donald J. Smythe

Laurence A. Benner

In light of the Supreme Court’s recent narrowing of the Fourth Amendment exclusionary rule in cases like Herring v. United States and Davis v. United States, there is renewed interest in whether state supreme courts will maintain or similarly narrow the search and seizure exclusionary rule for violations of their own state constitutions. The pattern of early adoptions of the exclusionary rule as a matter of state law before it was mandated by the federal Constitution may provide interesting insights into how the state supreme courts will respond to cases such as Herring and Davis. This article uses social-network ...


The Preliminary Hearing: A Necessary Part Of Due Process, Andrea Lyon Feb 2015

The Preliminary Hearing: A Necessary Part Of Due Process, Andrea Lyon

Andrea D. Lyon

No abstract provided.


Social-Network Theory And The Diffusion Of The Search-And-Seizure Exclusionary Rule Among State Courts Between Weeks And Wolf, Laurence A. Benner, Robert Bird, Donald J. Smythe Feb 2015

Social-Network Theory And The Diffusion Of The Search-And-Seizure Exclusionary Rule Among State Courts Between Weeks And Wolf, Laurence A. Benner, Robert Bird, Donald J. Smythe

Laurence A. Benner

No abstract provided.


The Presumption Of Guilt: Systemic Factors That Contribute To Ineffective Assistance Of Counsel In California, Laurence A. Benner Feb 2015

The Presumption Of Guilt: Systemic Factors That Contribute To Ineffective Assistance Of Counsel In California, Laurence A. Benner

Laurence A. Benner

Our adversary system of criminal justice is premised upon the belief that effective advocacy by counsel for both the prosecution and the defense, conducted within a process founded upon principles of fundamental fairness, will "best promote the ultimate objective that the guilty be convicted and the innocent go free." The exoneration of the wrongfully convicted by the California Innocence Project and other innocence projects across the county has revealed, however, that our criminal justice system is sometimes deeply flawed. In theory, every person accused of a serious crime comes to court protected by a presumption of innocence and the promise ...


Don't Take His Eye, Don't Take His Tooth, And Don't Cast The First Stone: Limiting Religious Arguments In Capital Cases, John H. Blume, Sheri Lynn Johnson Dec 2014

Don't Take His Eye, Don't Take His Tooth, And Don't Cast The First Stone: Limiting Religious Arguments In Capital Cases, John H. Blume, Sheri Lynn Johnson

John H. Blume

Professors John H. Blume and Sheri Lynn Johnson explore the occurrences of religious imagery and argument invoked by both prosecutors and defense attorneys in capital cases. Such invocation of religious imagery and argument by attorneys is not surprising, considering that the jurors who hear such arguments are making life and death decisions, and advocates, absent regulation, will resort to such emotionally compelling arguments. Also surveying judicial responses to such arguments in courts, Professors Blume and Johnson gauge the level of tolerance for such arguments in specific jurisdictions. Presenting proposed rules for prosecutors and defense counsel who wish to employ religious ...


People V. Coughlin And Criticisms Of The Criminal Jury In Late Nineteenth-Century Chicago, Elizabeth Dale Nov 2014

People V. Coughlin And Criticisms Of The Criminal Jury In Late Nineteenth-Century Chicago, Elizabeth Dale

Elizabeth Dale

The last decades of the nineteenth century and the first decades of the twentieth century are typically characterized as the era in which the criminal jury trial came to an end. Although criminal juries did not completely disappear, their role became smaller and smaller across that time frame. Most studies of this phenomenon attribute that decline to the rise of plea bargains in that same period. Specifically, these studies lead to the conclusion that institutional factors, such as case loads and the political pressure on elected prosecutors to be "tough on crime," made plea bargains an increasingly attractive option for ...