Law Commons^™

Brief Of Amici Curiae -- Heien V. State Of North Carolina, Charles E. Maclean, Adam Lamparello

Adam Lamparello

Reasonable suspicion of unlawful activity cannot be predicated on conduct that does not violate the law. Put differently, if reasonableness — or reasonable suspicion — is to mean anything, it means that apparent violations of the law must be based on actual violations of the law. The North Carolina Supreme Court’s decision sends a message to drivers throughout the country that they cannot be wrong about what the law requires, even where law enforcement is wrong — dead wrong — about what the law proscribes.

A Right To Contribution And Federal Restitution Orders, Jonathan R. Hornok

Jonathan R. Hornok

Amy and Vicky are victims of two of the most widely traded series of child sex-abuse images. The Violence Against Women Act requires courts to order full restitution for these women. However, with millions of dollars in requested restitution and thousands of defendants, the United States courts of appeals are split over whether to interpret the mandatory restitution provision broadly (providing a victim with comprehensive recovery from each defendant) or narrowly (frequently allowing only limited, expensive, and time-consuming recovery from many defendants). Partially motivating this circuit split are courts’ opposing views on whether a defendant has a right to contribution …

Presumed Guilty, Terrence Cain

Terrence Cain

It would probably surprise the average American that prosecutors need only prove guilt beyond a reasonable doubt sometimes. Although the Due Process Clauses of the Constitution require that the government prove each element of an alleged criminal offense beyond a reasonable doubt, the use of statutory presumptions has relieved the government of this responsibility, and in some cases, has even shifted the burden to the defendant to disprove the presumption. Likewise, the Sixth Amendment grants a criminal defendant the right to have the jury and the jury alone determine whether the government has met its burden and ultimately whether the …

The Death Of Miranda V. Arizona, Patrick J. Noonan

Patrick J. Noonan

On June 1, 2010, the United States Supreme Court made a watershed decision, turning its decision in Miranda v. Arizona “upside down.” In the case of Berghuis v. Thompkins, the court ruled 5 to 4 that a Michigan defendant who incriminated himself in a fatal shooting after nearly three hours of questioning gave up his right to silence, and the statement could be used against him.

This paper discusses the history and lead-up to the Supreme Court's decision in Miranda v. Arizona, the aftermath and reaction to the Supreme Court's decision in Miranda v. Arizona, the Supreme Court's resistance, conflicting …

The Effects, Thirty Years In Hindsight, Of Eliminating The Concept Of Fourth Amendment “Standing”, Robert H. Whorf

robert h whorf

Abstract – The Effects, Thirty Years in Hindsight, of Eliminating the Concept of Fourth Amendment Standing Copyright 2009 Robert H. Whorf This article presents a novel look at Fourth Amendment “standing” doctrine. It considers a case that has perplexed courts for three decades – Rakas v. Illinois, 439 U.S. 128 (1978). The article chronicles an amazing variety of responses from lower courts in the years following issuance of the decision. Those responses indicate that courts were considerably confused about whether Rakas actually eliminated the concept of 4th Amendment standing by collapsing it into the threshold merits inquiry, or whether Rakas …

Race, Genes, And Justice: A Call To Reform The Presentation Of Forensic Dna Evidence In Criminal Trials, Jonathan Kahn

Jonathan Kahn

The article considers how and when, if at all, is it appropriate to use race in presenting forensic DNA evidence in a court of law? This relatively straightforward question has been wholly overlooked by legal scholars. By pursuing it, this article promises to transform fundamentally the presentation forensic DNA evidence. Currently, it is standard practice for prosecutors to use race in presenting the odds that a given defendant’s DNA matches DNA found at a crime scene. This article takes an interdisciplinary approach to question the validity of this widespread but largely uninterrogated practice. It examines how race came to enter …

Free To Leave? An Empirical Look At The Fourth Amendment’S Seizure Standard, David K. Kessler

David K Kessler

Whether a person has been “seized” often determines if he or she receives Fourth Amendment protection. The Supreme Court has established a standard for identifying seizures: a person is seized when a reasonable person in his situation would not have felt free to leave or otherwise terminate the encounter with law enforcement. In applying that standard, today’s courts conduct crucial seizure inquiries relying only on their own beliefs about when a reasonable person would feel free to leave. Both the Court and scholars have noted that, though empirical evidence about whether people actually feel free to leave would help guide …

Towards A Scientific Standard For The Admissibility And Evaluation Of Psychiatric Evidence In War Crimes Prosecutions, Matthew J. Madalo

Matthew J Madalo

"Towards a Standard for the Admissibility and Evaluation of Psychiatric Evidence in War Crimes Prosecutions" explores the nature and use of psychiatric/psychological defenses and evidence in war crimes prosecutions. Part I of the article focuses on the differing goals and overlapping concerns between psychiatry and the law. In the international criminal legal context, the discussion will center on the types of psychiatric evidence and defenses that have been used or are likely to be used in war crimes prosecutions. Part II analyzes the applicable ICTY, ICR and ICC Statutes, Rules of Procedure and Evidence, and relevant United States common law …

A Report On The Working Of The Writ Of Habeas Corpus In Kashmir: 1990 – 2005 (Chapter-Ii, Methodology), Ashok Agrwaal

Ashok Agrwaal

This report is the first part of a two part study on the functioning of the constitutional and legal redress mechanism for the protection of the most basic of rights, the right to life and liberty, during the period of insurgency in Kashmir: 1990 to 2003. The report is pivoted around a study of petitions for a writ of habeas corpus, filed by the families of the affected persons. All these persons were subjected to illegal arrest (and unacknowledged) arrest and detention by the security forces in Kashmir. Most of them were never seen again. For comparison, we have also …

A Report On The Working Of The Writ Of Habeas Corpus In Kashmir: 1990 - 2005 (Chapter-I, Introduction), Ashok Agrwaal

Ashok Agrwaal

This report is the first part of a two part study on the functioning of the constitutional and legal redress mechanism for the protection of the most basic of rights, the right to life and liberty, during the period of insurgency in Kashmir: 1990 to 2003. The report is pivoted around a study of petitions for a writ of habeas corpus, filed by the families of the affected persons. All these persons were subjected to illegal arrest (and unacknowledged) arrest and detention by the security forces in Kashmir. Most of them were never seen again. For comparison, we have also …

A Report On The Working Of The Writ Of Habeas Corpus In Kashmir: 1990 – 2005 (Chapter-Iv, The Petitions), Ashok Agrwaal

Ashok Agrwaal

This report is the first part of a two part study on the functioning of the constitutional and legal redress mechanism for the protection of the most basic of rights, the right to life and liberty, during the period of insurgency in Kashmir: 1990 to 2003. The report is pivoted around a study of petitions for a writ of habeas corpus, filed by the families of the affected persons. All these persons were subjected to illegal arrest (and unacknowledged) arrest and detention by the security forces in Kashmir. Most of them were never seen again. For comparison, we have also …

A Report On The Working Of The Writ Of Habeas Corpus In Kashmir: 1990 – 2005 (Chapter-V, The Narratives), Ashok Agrwaal

Ashok Agrwaal

This report is the first part of a two part study on the functioning of the constitutional and legal redress mechanism for the protection of the most basic of rights, the right to life and liberty, during the period of insurgency in Kashmir: 1990 to 2003. The report is pivoted around a study of petitions for a writ of habeas corpus, filed by the families of the affected persons. All these persons were subjected to illegal arrest (and unacknowledged) arrest and detention by the security forces in Kashmir. Most of them were never seen again. For comparison, we have also …

A Report On The Working Of The Writ Of Habeas Corpus In Kashmir: 1990 – 2005 (Chapter-Iii, The Arrest), Ashok Agrwaal

Ashok Agrwaal

This report is the first part of a two part study on the functioning of the constitutional and legal redress mechanism for the protection of the most basic of rights, the right to life and liberty, during the period of insurgency in Kashmir: 1990 to 2003. The report is pivoted around a study of petitions for a writ of habeas corpus, filed by the families of the affected persons. All these persons were subjected to illegal arrest (and unacknowledged) arrest and detention by the security forces in Kashmir. Most of them were never seen again. For comparison, we have also …

Partial Ban On Plea Bargains, Oren Gazal

Oren Gazal-Ayal

The influence of the plea bargaining system on innocent defendants is fiercely debated. Many scholars call for a ban on plea bargaining, arguing that the practice coerces innocent defendants to plead guilty. Proponents of plea bargaining respond that even an innocent defendant is better off when he choose to plea bargain in order to assure a lenient result, if he concludes that the risk of wrongful trial conviction is too high. They claim that since plea bargaining is only an option, it cannot harm the defendant whether he is guilty or innocent. This paper argues that the both supporters and …

Proyecto De Ley Sobre Juicio Por Jurados, Dr Leonardo J. Raznovich

Dr Leonardo J Raznovich

This article published in Spanish provides with an assessment of a bill sent to the Argentinean Parliament in order to implement trial by jury for serious criminal matters. It also provides with a historical overview of the institution and with some possible explanations why the Argentinean legislator has been reluctant to fulfill the constitutional mandate of implementing trial by jury for all criminal matters (articles 24, 75 (12) and 118 of the Argentinean Constitution).