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Constitutional Law

Criminal Law and Procedure

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Articles 181 - 210 of 227

Full-Text Articles in Criminal Law

Citizens Of An Enemy Land: Enemy Combatants, Aliens, And The Constitutional Rights Of The Pseudo-Citizen, Juliet P. Stumpf Mar 2004

Citizens Of An Enemy Land: Enemy Combatants, Aliens, And The Constitutional Rights Of The Pseudo-Citizen, Juliet P. Stumpf

ExpressO

No abstract provided.


Constitutional Interpretation And Coercive Interrogation After Chavez V. Martinez, John T. Parry Mar 2004

Constitutional Interpretation And Coercive Interrogation After Chavez V. Martinez, John T. Parry

ExpressO

Using the Supreme Court's decision last Term in Chavez v. Martinez as a launching pad, this article reveals and addresses fundamental tensions in constitutional interpretation, the law of interrogation, and civil rights litigation. First, this article highlights the importance of remedies to the definition of constitutional rights, which compels us to jettison the idea of prophylactic rules and accept Congress's role in constitutional interpretation. Armed with these insights, the article next considers the law of coercive interrogation. I explain why the privilege against self-incrimination is more than a trial right, and I redefine the central holding of Miranda to take …


Entrapment And The Problem Of Deterring Police Misconduct, Dru Stevenson Feb 2004

Entrapment And The Problem Of Deterring Police Misconduct, Dru Stevenson

ExpressO

Many the states currently use a version of the entrapment defense known as the “objective test,” which focuses solely on the extent of police overreaching in the case, and seeks to deter police misconduct by acquitting the defendant. Acquitting defendants as a means of deterring undercover police misconduct, however, is a public policy fraught with problems, and these problems have not been adequately addressed in the literature to date. This article applies the insights of modern deterrence theory to wrongful activity by police in undercover operations. In doing so, three general problems emerge. First, the objective test relies on an …


Indianapolis V. Edmond And The Original Understanding Of The Fourth Amendment, Bruce Newman Oct 2003

Indianapolis V. Edmond And The Original Understanding Of The Fourth Amendment, Bruce Newman

ExpressO

In this article I examine to what extent Indianapolis v. Edmond is in keeping with the original understanding of the Fourth Amendment. I conclude that the Founders were much more concerned with searches of real property, often insisting, not only on suspicion, but also a on warrant when searches of real property are involved. Secondly, while the Founders did not consider warrants necessary for searches and seizures off of real property (which for the sake of simplicity I call searches in public areas) the evidence suggests suspicion was required. Indeed, the Fourth Amendment was a direct response to the British …


National Identity Cards: Fourth And Fifth Amendment Issues, Daniel J. Steinbock Oct 2003

National Identity Cards: Fourth And Fifth Amendment Issues, Daniel J. Steinbock

ExpressO

In the past two years there have been serious calls for a national identity system whose centerpiece would be some form of national identity card. Such a system is seen mainly as a tool against terrorists, but also as a useful response to illegal immigration, identity theft, and electoral fraud. Both proponents and opponents have noted the potential constitutional problems of such an identity system, but as yet there has been no published legal analysis of these questions. This article aims to fill that gap by analyzing the Fourth and Fifth Amendment issues in two major features of any likely …


The Self-Incrimination Clause Explained And Its Future Predicted, Ronald J. Allen Sep 2003

The Self-Incrimination Clause Explained And Its Future Predicted, Ronald J. Allen

ExpressO

No abstract provided.


Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel Sep 2003

Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel

ExpressO

This paper traces how the Supreme Courts of Canada and the United States have each used the basic guarantee of adjudicative fairness in their respective constitutions to effect revolutions in their countries’ criminal justice systems, through two different jurisprudential models for this development. It identifies a relationship between two core constitutional structures, the basic guarantee and enumerated rights, and shows how this relationship can affect the degree to which entrenched constitutional rights actually protect individuals. It explains that the different models for the relationship between the basic guarantee and enumerated rights adopted in Canada and the United States, an “expansive …


The Coherence Of Orthodox Fourth Amendment Jurisprudence, Samuel C. Rickless Sep 2003

The Coherence Of Orthodox Fourth Amendment Jurisprudence, Samuel C. Rickless

ExpressO

In the legal academy it is widely believed that the U.S. Supreme Court's orthodox (post-Katz, pre-Houghton) fourth amendment jurisprudence is theoretically incoherent. In particular, the Court has been criticized (on doctrinal and textual grounds) for accepting (i) Justice Harlan's definition of a "search" as an infringement of a subjective expectation of privacy that society is prepared to recognize as reasonable, (ii) the Warrant Requirement and Probable Cause Requirement (according to which searches and seizures without a warrant or probable cause are presumptively unreasonable), and (iii) the Exclusionary Rule (according to which any evidence obtained in violation of a person’s fourth …


Apprendi In The States: The Virtues Of Federalism As A Structural Limit On Errors, Stephanos Bibas Jan 2003

Apprendi In The States: The Virtues Of Federalism As A Structural Limit On Errors, Stephanos Bibas

All Faculty Scholarship

No abstract provided.


Two Sides Of A "Sargasso Sea": Successive Prosecution For The "Same Offence" In The United States And The United Kingdom, Lissa Griffin Jan 2003

Two Sides Of A "Sargasso Sea": Successive Prosecution For The "Same Offence" In The United States And The United Kingdom, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

This article analyzes the U. S. constitutional law interpreting the concept of “same offence.” Included is a survey of the Supreme Court's attempts to interpret constitutional text in order to provide adequate protection for the underlying double jeopardy interest against vexatious reprosecutions, which have frequently produced inconsistent and illogical results. Part III of this article analyzes U.K. law relating to the concept of “same offence,” where the same narrow double jeopardy protection adopted by the U.S. Supreme Court is supplemented with a broad discretion to prevent unfair successive prosecution that constitutes an abuse of process. Part IV draws lessons from …


The Correction Of Wrongful Convictions: A Comparative Perspective, Lissa Griffin Jan 2001

The Correction Of Wrongful Convictions: A Comparative Perspective, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

This Article analyzes the different modes in which two facially similar adversarial systems remedy wrongful convictions. Part I briefly examines the origins of wrongful convictions in both England and the United States. Part II describes the appellate processes in the two countries for correcting wrongful convictions. Part III addresses the processes for correcting wrongful convictions after the appellate processes have been completed. Part IV critiques the English process and examines whether aspects of that process may be carried over to the United States.


Toward A Comparative Economics Of Plea Bargaining (With Thomas Miceli), Richard Adelstein Dec 2000

Toward A Comparative Economics Of Plea Bargaining (With Thomas Miceli), Richard Adelstein

Richard Adelstein

A comparison of adversarial and inquisitorial approaches to criminal adjudication and its implications for plea bargaining.


Burdening Constitutional Rights: The Supreme Court's License To Prosecutors, Bennett L. Gershman Jul 2000

Burdening Constitutional Rights: The Supreme Court's License To Prosecutors, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The prosecutorial tactic of burdening a defendant’s exercise of constitutional rights has appeared in a variety of contexts. Prosecutors have asked juries to infer guilt based on a defendant’s decision not to testify, not to call witnesses, to remain silent after being given Miranda warnings, to go to trial, to secure the assistance of counsel, to refuse to consent to a warrantless search, and to testify. In all of these instances, courts have found the prosecutor’s remarks to constitute misconduct.


Litigation In The United States And Mexico: A Comparative Overview, Robert M. Kossick, Jr. Mar 2000

Litigation In The United States And Mexico: A Comparative Overview, Robert M. Kossick, Jr.

University of Miami Inter-American Law Review

No abstract provided.


Self-Defense: The Equalizer, David B. Kopel, Linda Gorman Jan 2000

Self-Defense: The Equalizer, David B. Kopel, Linda Gorman

David B Kopel

Experiments in tightening gun-control laws have eroded the right of self defense and failed to stop serious crime. Studies Japan, the United Kingdom, Canada, and Australia.


The Evolving Police Power: Some Observations For A New Century, David B. Kopel, Glenn Harlan Reynolds Jan 2000

The Evolving Police Power: Some Observations For A New Century, David B. Kopel, Glenn Harlan Reynolds

David B Kopel

A review of state and federal courts decisions on the scope of state police powers suggests that the shift from the more restrictive sic utere principle to the more open salus populi principle may be reversing, with courts -- at least in cases involving sex and marriage -- taking a much more skeptical view of government objectives and justifications.


The Bill Of Rights And The Constitution: Facing The Challenge Of The Future, Stephen Wermiel Jan 2000

The Bill Of Rights And The Constitution: Facing The Challenge Of The Future, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.


What Do You Do When You Meet A "Walking Violation Of The Sixth Amendment" If You're Trying To Put That Lawyer's Client In Jail?, Vanessa Merton Jan 2000

What Do You Do When You Meet A "Walking Violation Of The Sixth Amendment" If You're Trying To Put That Lawyer's Client In Jail?, Vanessa Merton

Elisabeth Haub School of Law Faculty Publications

For the purpose of this article, the relevance of my experience as a criminal defense attorney is this: if ever one might expect to find a prosecutor inclined to err on the side of fairness of process and protecting the rights of defendants, it ought to be me. Also, for more than twenty years, I have been something of a professional ethicist--as research fellow, teacher, staff member of an ethics center, chair and/or member of several institutional review boards, pro bono trial counsel to a disciplinary committee, ethics consultant, and expert witness--and, therefore, one might think, especially susceptible to the …


Victims As Cost Bearers, Richard Adelstein Dec 1998

Victims As Cost Bearers, Richard Adelstein

Richard Adelstein

A brief recasting of the price exaction model.


Reasonable And Other Doubts: The Problem Of Jury Instructions, Robert C. Power Dec 1998

Reasonable And Other Doubts: The Problem Of Jury Instructions, Robert C. Power

Robert C Power

No abstract provided.


Clueless: The Misuse Of Batf Firearms Tracing Data, David B. Kopel Dec 1998

Clueless: The Misuse Of Batf Firearms Tracing Data, David B. Kopel

David B Kopel

Sometimes the Bureau of Alcohol, Tobacco and Firearms traces the registered sales history of a gun which was used in a crime, or which has been seized by the police. Traced guns are not representative of the broader universe of crime guns. Accordingly, drawing public policy conclusions based on tracing data is unwise.


Four Entries, Richard Adelstein Dec 1997

Four Entries, Richard Adelstein

Richard Adelstein

Four entries: "American Institutional Economics and the Legal System" (I: 61-66); "John Rogers Commons" (I: 324-327); Richard Theodore Ely" (II: 28-29); and "Plea Bargaining: A Comparative Approach"


Preventing A Reign Of Terror: Civil Liberties Implications Of Terrorism Legislation, David B. Kopel, Joseph Olson Jan 1996

Preventing A Reign Of Terror: Civil Liberties Implications Of Terrorism Legislation, David B. Kopel, Joseph Olson

David B Kopel

Domestic terrorism is not a reason to abrogate constitutional rights, argues this 101-page paper, which discusses the 1996 omnibus federal terrorism bill, and other terror proposals. Topics include: scope of the terrorism problem; Britain's mistaken response to terror; use of the military in law enforcement; the Internet; militias; wiretapping; the FBI; and federalizing local crime.


Defensively Invoking Treaties In American Courts--Jurisdictional Challenges Under The U.N. Drug Trafficking Convention By Foreign Defendants Kidnapped Abroad By U.S. Agents, Thomas Michael Mcdonnell Jan 1996

Defensively Invoking Treaties In American Courts--Jurisdictional Challenges Under The U.N. Drug Trafficking Convention By Foreign Defendants Kidnapped Abroad By U.S. Agents, Thomas Michael Mcdonnell

Elisabeth Haub School of Law Faculty Publications

This Article unravels the non-self-executing treaty doctrine, examines the invocation of a treaty as a defense to governmental action, and develops a test for when an individual (rather than a government) may assert a treaty defensively in state or federal courts. Lastly, this Article applies this test to state-sponsored kidnapping and the U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The parties to this treaty, which was sponsored by the United States, barred one country's law enforcement agents from operating without permission on another country's soil and rejected a provision requiring a country to extradite its own …


The Gate Is Open But The Door Is Locked - Habeas Corpus And Harmless Error, Bennett L. Gershman Jan 1994

The Gate Is Open But The Door Is Locked - Habeas Corpus And Harmless Error, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Brecht is a paradigm of the Rehnquist Court's result-oriented approach to habeas corpus and harmless error. The decision purports to be a principled application of the policies of finality, federalism, and judicial economy that underlay the Court's new habeas and harmless error jurisprudence. It is, in fact, an unwarranted and unprincipled extension of those policies. Depending on how the lower federal courts interpret and implement the decision, Brecht could have a devastating impact on the way state prosecutors and judges administer criminal justice, as well as the ability of state prisoners to redress constitutional violations.


Gideon V. Wainwright Revisited: What Does The Right To Counsel Guarantee Today?, Michael B. Mushlin Jan 1990

Gideon V. Wainwright Revisited: What Does The Right To Counsel Guarantee Today?, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

In Gideon v. Wainwright, the Supreme Court unanimously held that indigent state felony defendants are constitutionally entitled to the appointment of trial counsel. The opinion aroused wide support, and even enthusiasm, almost from the moment it was announced in 1963. Two and a half decades later this support has not diminished. However, are the words of praise only lip service to the noble idea of the right to counsel? Has Gideon really made a difference? Has its promise of a fair shake for poor criminal defendants been kept, or has Gideon meant only that defendants are provided with the fleeting …


Whose Right Is It Anyway?: Rethinking Competency To Stand Trial In Light Of The Synthetically Sane Insanity Defendant, Linda C. Fentiman Jan 1986

Whose Right Is It Anyway?: Rethinking Competency To Stand Trial In Light Of The Synthetically Sane Insanity Defendant, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

This article's thesis is that given the magnitude of the insanity defendant's fundamental constitutional liberties--his constitutional right to present and conduct his defense, his privilege against self-incrimination, his constitutional right to privacy and bodily integrity, and his common law right to give informed consent to medical treatment--the state's interest in assuring the defendant's competency must give way if he chooses to waive his right to be tried while competent. Most, if not all, of the purposes of the prohibition against trying an incompetent defendant can be met even if the defendant is tried without psychotropic medication as long as he …


Attorney Loyalty And Client Perjury - A Postscript To Nix V. Whiteside, Bennett L. Gershman Jan 1986

Attorney Loyalty And Client Perjury - A Postscript To Nix V. Whiteside, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

How much, if at all, can a criminal defense lawyer cooperate in his or her client's decision to commit perjury? Courts, commentators, and bar committees have grappled with this question for years without offering clear or consistent guidelines. Any principled response must take into account some very hard questions. Under what circumstances, for instance, does the lawyer ever really "know" that his client's proposed testimony is false? Is it sufficient if the lawyer simply disbelieves his client's story, or that of his client's witnesses? Does it make any difference if the attorney learns of a plan to perjure during the …


Prohibiting Prosecutorial Vindictiveness While Protecting Prosecutorial Discretion: Toward A Principled Resolution Of A Due Process Dilemma, C. Peter Erlinder Jan 1985

Prohibiting Prosecutorial Vindictiveness While Protecting Prosecutorial Discretion: Toward A Principled Resolution Of A Due Process Dilemma, C. Peter Erlinder

C. Peter Erlinder

No abstract provided.


The Philippines: A Country In Crisis - A Report By Lawyers Committee For International Human Rights, Diane Orentlicher, Marvin E. Frankel, Jack Greenberg Jan 1983

The Philippines: A Country In Crisis - A Report By Lawyers Committee For International Human Rights, Diane Orentlicher, Marvin E. Frankel, Jack Greenberg

Articles in Law Reviews & Other Academic Journals

No abstract provided.