Law Commons^™

Frankly, It's A Mess: Requiring Courts To Transparently "Redline" Affidavits In The Face Of Franks Challenges, Diana Bibb

William & Mary Bill of Rights Journal

Part I provides a brief overview of the Fourth Amendment, probable cause, and the exclusionary rule. Part II discusses Franks v. Delaware, the development of the challenge’s framework, and subsequent expansions to the doctrine made by the lower courts. Next, Part III argues that, despite the aforementioned expansions, courts have consistently weakened Franks. Notably, the Supreme Court refuses to consider Franks issues, including the multitude of splits over which standard of review is applicable. Moreover, some circuits have developed their own minute rules that have chiseled away at the effectiveness of a Franks challenge. Part IV proposes that …

A Comparative Examination Of Police Interrogation Of Criminal Suspects In Australia, Canada, England And Wales, New Zealand, And The United States, Carol A. Brook, Bruno Fiannaca, David Harvey, Paul Marcus, Renee Pomerance, Paul Roberts

William & Mary Bill of Rights Journal

The interrogation process is central to the investigation and resolution of criminal matters throughout the world. It is fundamental to a comprehensive understanding of comparative criminal procedure to study and appreciate the different approaches to the interrogation process in different nations. This Article developed through a series of conversations between six international criminal justice professionals— practicing attorneys, scholars, and judges—regarding the interrogation practices and rules in their respective countries. Providing a comparative look at this important area, this Article examines the applicable practices and procedures in the common law nations of Australia, Canada, England and Wales, New Zealand, and the …

Common Law Evidence And The Common Law Of Human Rights: Towards A Harmonic Convergence?, John D. Jackson

William & Mary Bill of Rights Journal

This Article considers the impact which European Human Rights Law has made upon the common law rules of evidence with reference to the approach the European Court of Human Rights (ECtHR) has adopted towards exclusionary rules of evidence. Particular attention will be given to rules that have been developed by the ECtHR in relation to the right to counsel during police questioning (the so-called “Salduz” doctrine) and the right to examine witnesses (the so-called “sole or decisive” evidence rule). The Article argues that the effect of these rules has encouraged common law judges to engage more holistically with the effect …

The Unconstitutionality Of Criminal Jury Selection, Brittany L. Deitch

William & Mary Bill of Rights Journal

The criminal defendant’s right to a jury trial is enshrined within the U.S. Constitution as a protection for the defendant against arbitrary and harsh convictions and punishments. The jury trial has been praised throughout U.S. history for allowing the community to democratically participate in the criminal justice system and for insulating criminal defendants from government oppression. This Article asks whether the jury selection process is consistent with the defendant-protection justification for the Sixth Amendment right to a trial by jury. Currently, the prosecution and defense share equal control over jury selection. Looking to the literal text of the Sixth Amendment, …

The Fourth Amendment Disclosure Doctrines, Monu Bedi

William & Mary Bill of Rights Journal

The third party and public disclosure doctrines (together the “disclosure doctrines”) are long-standing hurdles to Fourth Amendment protection. These doctrines have become increasingly relevant to assessing the government’s use of recent technologies such as data mining, drone surveillance, and cell site location data. It is surprising then that both the Supreme Court and scholars, at times, have associated them together as expressing one principle. It turns out that each relies on unique foundational triggers and does not stand or fall with the other. This Article tackles this issue and provides a comprehensive topology for analyzing the respective contours of each …

Reducing The Dangers Of Future Dangerousness Testimony: Applying The Federal Rules Of Evidence To Capital Sentencing, Jaymes Fairfax-Columbo, David Dematteo

William & Mary Bill of Rights Journal

The United States Supreme Court has long held that the death penalty cannot be imposed arbitrarily, and that during sentencing in capital cases, jurors must be provided with guidelines to assist them in narrowing down the class of individuals for whom the death penalty is appropriate. Typically, this is accomplished through the presentation of aggravating and mitigating evidence. One aggravating factor is a capital offender’s future dangerousness, or the likelihood that the individual will engage in violent institutional misconduct while in prison. Future dangerousness may be assessed using a variety of measures; Hare’s Psychopathy Checklist-Revised (PCL-R), a measure of personality …

Confronting Cops In Immigration Court, Mary Holper

William & Mary Bill of Rights Journal

Part I of the Article outlines the police report problem by discussing the four situations in which police reports are used in immigration court, why police reports are unreliable, and the scope of the problem. Part II discusses criminal law’s treatment of police reports, focusing on the Confrontation Clause of the Sixth Amendment, which provides the constitutional justification for excluding police reports in criminal cases. Part III discusses the use of hearsay evidence in immigration cases, where hearsay is allowed due to the characterization of removal proceedings as civil, not criminal. While there has been a trend to reject unreliable …

Grand Jury Innovation: Toward A Functional Makeover Of The Ancient Bulwark Of Liberty, Roger A. Fairfax Jr.

William & Mary Bill of Rights Journal

No abstract provided.

All Men Are (Or Should Be) Created Equal: An Argument Against The Use Of The Cultural Defense In A Post-Booker World, Elizabeth Martin

William & Mary Bill of Rights Journal

No abstract provided.

Terrorism And The New Criminal Process, John T. Parry

William & Mary Bill of Rights Journal

No abstract provided.

Justice Story Cuts The Gordian Knot Of Hung Jury Instructions, George C. Thomas Iii, Mark Greenbaum

William & Mary Bill of Rights Journal

No abstract provided.

Misnamed, Misapplied, And Misguided: Clarifying The State Of Sentencing Entrapment And Proposing A New Conception Of The Doctrine, Jess D. Mekeel

William & Mary Bill of Rights Journal

No abstract provided.

The Mandatory Death Penalty In The Commonwealth Caribbean And The Inter-American Human Rights System: An Evolution In The Development And Implementation Of International Human Rights Protections, Brian D. Tittemore

William & Mary Bill of Rights Journal

No abstract provided.

Can The "Public Interest" Justify Non-Consensual Searches Of Homes In Bankruptcy Cases?, A. Mechele Dickerson

William & Mary Bill of Rights Journal

No abstract provided.

The White-Collar Police Force: "Duty To Report" Statutes In Criminal Law Theory, Sandra Guerra Thompson

William & Mary Bill of Rights Journal

No abstract provided.

The Investigation And Prosecution Of White-Collar Crime: International Challenges And The Legal Tools Available To Address Them, Thomas G. Snow

William & Mary Bill of Rights Journal

No abstract provided.

Peoples Divided: The Application Of United States Constitutional Protections In International Criminal Law Enforcement, Ian R. Conner

William & Mary Bill of Rights Journal

In an age of globalization, criminal activity too has become internationalized. The response from the United States and other countries has been a growing number of treaties, international accords, and multinational law enforcement programs. This Note addresses the extent to which these international agreements have impacted the rights of the accused both in the United States and abroad

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

William & Mary Bill of Rights Journal

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 …

Choosing Perspectives In Criminal Procedure, Ronald J. Bacigal

William & Mary Bill of Rights Journal

In this Article, Professor Bacigal examines the Supreme Court's use of various perspectives in examining the reasonableness of searches and seizures. Although the Supreme Court purports to rely on a consistent method of constitutional analysis when rendering decisions on Fourth Amendment issues, the case law in this area indicates that the Court is influenced sometimes by the citizen's perspective, sometimes by the police officers' perspective, and sometimes by the perspective of the hypothesized reasonable person.

After identifying the role of perspectives in a number of seminal Court decisions, Professor Bacigal discusses the benefits and limitations of the Court's reliance on …

Aggravating And Mitigating Factors: The Paradox Of Today's Arbitrary And Mandatory Capital Punishment Scheme, Jeffrey L. Kirchmeier

William & Mary Bill of Rights Journal

Over twenty years ago, the United States Supreme Court held that both mandatory capital sentencing schemes and total discretionary capital sentencing schemes violate the Eighth Amendment. According to Jeffrey Kirchmeier, the "guided discretion" capital sentencing scheme of sentencing factors that has developed, however, has the constitutional problems of both mandatory death penalties and unlimited discretion death penalties.

Justices Scalia, Blackmun, and Thomas have noted that the mandate of unlimited mitigating circumstances has resulted in an arbitrary system. Kirchmeier argues that today's sentencing scheme is arbitrary also because of undefined aggravating factors, unlimited nonstatutory aggravating factors, and victim impact evidence. According …