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Articles 1 - 30 of 58
Full-Text Articles in Criminal Procedure
Moving Beyond Miranda: Concessions For Confessions, Scott Howe
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 …
Quasi-Affirmative Rights In Constitutional Criminal Procedure, David Sklansky
Quasi-Affirmative Rights In Constitutional Criminal Procedure, David Sklansky
David A Sklansky
No abstract provided.
The Charter And Criminal Justice: Twenty-Five Years Later, Jamie Cameron, James Stribopoulos
The Charter And Criminal Justice: Twenty-Five Years Later, Jamie Cameron, James Stribopoulos
Jamie Cameron
When the Charter of Rights and Freedoms turned twenty-five in 2007, Professors Jamie Cameron and James Stribopoulos organized a conference which brought together leading thinkers on the Charterand criminal justice. A strong faculty of academics, judges and practitioners debated and discussed the Charter's impact on criminal justice. The papers from this conference, which have now been edited by Professors Cameron and Stribopoulos, provide a fascinating look at how the Charter has transformed the Canadian criminal justice system.
The Search And Seizure Of Private Papers: Fourth And Fifth Amendment Considerations, Steven Shiffrin
The Search And Seizure Of Private Papers: Fourth And Fifth Amendment Considerations, Steven Shiffrin
Steven H. Shiffrin
There is a recognizable factual distinction between the search and seizure of private papers and the search and seizure of non-documentary items. It is difficult, however, to decide when such a distinction should assume constitutional dimensions. Specifically, are there circumstances under which private papers should be immune from search and seizure? In a 1967 landmark case, Warden v. Hayden, the United States Supreme Court raised doubts concerning the continued validity of decades of settled law on this important issue. Warden's reopening of this problem aroused the curiosity of commentators, spurred new policy arguments in the American Law Institute, divided the …
Civil Rights In Crisis: The Racial Impact Of The Denial Of The Sixth Amendment Right To Counsel, Richard Klein
Civil Rights In Crisis: The Racial Impact Of The Denial Of The Sixth Amendment Right To Counsel, Richard Klein
Richard Daniel Klein
Whereas in 2013 there had been widespread celebration of the fiftieth anniversary of the landmark Supreme Court decision in Gideon v. Wainwright, much has been written in subsequent years about the unhappy state of the quality of counsel provided to indigents. But it is not just defense counsel who fail to comply with all that we hope and expect would be done by those who are part of our criminal courts; prosecutorial misconduct, if not actually increasing, is becoming more visible. The judiciary chooses to focus on the rapid processing of cases, often ignoring the rights of those being prosecuted …
The Perilous Psychology Of Public Defending, Scott Howe
The Perilous Psychology Of Public Defending, Scott Howe
Scott W. Howe
This article examining the ethical challenges confronting most public defender attorneys is framed as a fictional talk presented by P.D. Atty, a former public defender attorney, at a small conference of new public defender attorneys. The presentation asserts that public defenders typically face psychological obstacles to providing zealous advocacy for all of their clients and that an essential aspect of the remedy starts with recognition of these psychological barriers. The author contends that these challenges relate to a typically unacknowledged aversion to representing certain kinds of criminal defendants. Contrary to common supposition, the strongest aversion is not to representation of …
The Pressure Is On—Criminal Defense Counsel Strategies After Padilla V. Kentucky, Bill Hing
The Pressure Is On—Criminal Defense Counsel Strategies After Padilla V. Kentucky, Bill Hing
Bill Ong Hing
The Supreme Court’s message to criminal defense attorneys in Padilla v. Kentucky was clear: when there is a risk of deportation, defense counsel has a constitutional duty to inform an immigrant defendant of the potential for deportation or adverse immigration consequences prior to pleading guilty. In my view, this constitutional duty places tremendous pressure on defense counsel to do more than advise, because once advised, the client very naturally may want to know what options are available other than going to trial. Rather than simply focusing on how to minimize the time of incarceration for the client under a particular …
The Implications Of Incorporating The Eighth Amendment Prohibition On Excessive Bail, Scott Howe
The Implications Of Incorporating The Eighth Amendment Prohibition On Excessive Bail, Scott Howe
Scott W. Howe
In its opinion in McDonald v. City of Chicago, 130 S.Ct. 3020 (2010), concerning the incorporation of the Second Amendment, the Supreme Court included a footnote that listed the Eighth Amendment prohibition on excessive bail as one of the incorporated Bill of Rights protections. Oddly, the Court had never incorporated the bail clause or even explained what protections it conferred. While strange, these circumstances provide a rare opportunity to reason backward from incorporation to the meaning of the incorporated provision. And by pursuing those backward implications, the paper offers novel arguments about the proper understanding of the bail clause.
I …
Deselecting Biased Juries, Scott W. Howe
Deselecting Biased Juries, Scott W. Howe
Scott W. Howe
Critics of peremptory-challenge systems commonly contend that they inevitably inflict “inequality harm” on many excused persons and should be abolished. Ironically, the Supreme Court fueled this argument with its decision in Batson v. Kentucky by raising and endorsing the inequality claim sua sponte and then purporting to solve it with an approach that preserved peremptories. This Article shows, however, that the central problem is something other than inequality harm to excused persons. The central problem is the harm to disadvantaged litigants when their opponents use peremptories to secure a one-sided jury. This problem can arise often—whenever a venire is slanted …
Immigration Surveillance, Anil Kalhan
Immigration Surveillance, Anil Kalhan
Anil Kalhan
In recent years, immigration enforcement levels have soared, yielding a widely noted increase in the number of noncitizens removed from the United States. Less visible, however, has been an attendant sea change in the underlying nature of immigration governance itself, hastened by new surveillance and dataveillance technologies. Like many other areas of contemporary governance, immigration control has rapidly become an information-centered and technology-driven enterprise. At virtually every stage of the process of migrating or traveling to, from, and within the United States, both noncitizens and U.S. citizens are now subject to collection and analysis of extensive quantities of personal information …
Light In The Darkness: How Leatpr Standards Guide Legislators In Regulating Law Enforcement Access To Cell Site Location Records, Susan Freiwald
Light In The Darkness: How Leatpr Standards Guide Legislators In Regulating Law Enforcement Access To Cell Site Location Records, Susan Freiwald
Susan Freiwald
This article measures the new ABA Standards for Criminal Justice: Law Enforcement Access to Third Party Records (LEATPR Standards) success by assessing the guidance they provide legislators interested in updating pertinent law regarding one specific type of data. Scholars should not expect the Standards to yield the same conclusions they would have furnished had they been able to draft a set of standards by themselves. The Standards emerged after years of painstaking consensus building and compromise no individual committee member got entirely what he wanted. Nonetheless, not every product of a committee turns out to have been worth the effort, …
The Federal Death Penalty And The Constitutionality Of Capital Punishment, Scott W. Howe
The Federal Death Penalty And The Constitutionality Of Capital Punishment, Scott W. Howe
Scott W. Howe
The federal death penalty results in few executions but is central to the larger story of capital punishment in the United States. The explanation for its importance lies with its role in resolving the permissible uses of the death penalty under the Eighth Amendment. In the last decade, federal statutes governing the federal death penalty seem to have exerted outsize influence with the Court in its development of “proportionality” doctrine, the rules by which the Justices confine the use of capital punishment under the Constitution. In rejecting capital punishment for retarded offenders, juvenile offenders and child rapists, the Court in …
Immigration Policing And Federalism Through The Lens Of Technology, Surveillance, And Privacy, Anil Kalhan
Immigration Policing And Federalism Through The Lens Of Technology, Surveillance, And Privacy, Anil Kalhan
Anil Kalhan
With the deployment of technology, federal programs to enlist state and local police assistance with immigration enforcement are undergoing a sea change. For example, even as it forcefully has urged invalidation of Arizona’s S.B. 1070 and similar state laws, the Obama administration has presided over the largest expansion of state and local immigration policing in U.S. history with its implementation of the “Secure Communities” program, which integrates immigration and criminal history database systems in order to automatically ascertain the immigration status of every individual who is arrested and booked by state and local police nationwide. By 2012, over one fifth …
The Odyssey Of The United States Road To Torture-How Did The United States Become A Waterboarder?, Robert Bloom
The Odyssey Of The United States Road To Torture-How Did The United States Become A Waterboarder?, Robert Bloom
Robert Bloom
United States after 9/11 decided to ignore various international laws and engaged in torture. Talk focused on how a democratic nation with high moral values could engage in such activity
"Automobile Searches." Chapter 4d, 4d-1– 4d-62, "Suppression Of Illegally Obtained Evidence: Pretext Searches." Chapter 83, 83-1 - 83-18, Robert Bloom
Robert Bloom
No abstract provided.
Terry V.Ohio, Massiah V. United States, And Zurcher V. Stanford Daily, Robert Bloom
Terry V.Ohio, Massiah V. United States, And Zurcher V. Stanford Daily, Robert Bloom
Robert Bloom
No abstract provided.
Searches, Seizures, And Warrants: A Reference Guide To The United States Constitution, Robert Bloom
Searches, Seizures, And Warrants: A Reference Guide To The United States Constitution, Robert Bloom
Robert Bloom
No abstract provided.
Criminal Procedure: Examples And Explanations, Robert Bloom, Mark Brodin
Criminal Procedure: Examples And Explanations, Robert Bloom, Mark Brodin
Robert Bloom
No abstract provided.
Criminal Procedure: Examples And Expanations, Robert Bloom, Mark Brodin
Criminal Procedure: Examples And Expanations, Robert Bloom, Mark Brodin
Robert Bloom
No abstract provided.
The Story Of Pottawatomie County V. Lindsay Earls: Drug Testing In The Public Schools, Robert Bloom
The Story Of Pottawatomie County V. Lindsay Earls: Drug Testing In The Public Schools, Robert Bloom
Robert Bloom
No abstract provided.
"Commencement Of Action." Chapter 3 (Co-Authored With Daniel R. Coquillette) 3-1–3-34, "Time." Chapter 6, 6-1– 6-143, "Applicability In General." Chapter 81, 81-1–81-40, Robert Bloom
Robert Bloom
No abstract provided.
Ratting: The Use And Abuse Of Informants In The American Justice System, Robert Bloom
Ratting: The Use And Abuse Of Informants In The American Justice System, Robert Bloom
Robert Bloom
No abstract provided.
Criminal Procedure: The Constitution And The Police, Examples And Explanations, Robert Bloom, Mark Brodin
Criminal Procedure: The Constitution And The Police, Examples And Explanations, Robert Bloom, Mark Brodin
Robert Bloom
No abstract provided.
Jury Trial In Japan, Robert Bloom
Addressing The Harm Of Total Surveillance: A Reply To Professor Neil Richards, Danielle Citron, David Gray
Addressing The Harm Of Total Surveillance: A Reply To Professor Neil Richards, Danielle Citron, David Gray
David C. Gray
In his insightful article The Dangers of Surveillance, 126 HARV. L. REV. 1934 (2013), Neil Richards offers a framework for evaluating the implications of government surveillance programs that is centered on protecting "intellectual privacy." Although we share his interest in recognizing and protecting privacy as a condition of personal and intellectual development, we worry in this essay that, as an organizing principle for policy, "intellectual privacy" is too narrow and politically fraught. Drawing on other work, we therefore recommend that judges, legislators, and executives focus instead on limiting the potential of surveillance technologies to effect programs of broad and indiscriminate …
Twombly Is The Logical Extension Of The Mathews V. Eldridge Test To Discovery, Andrew Blair-Stanek
Twombly Is The Logical Extension Of The Mathews V. Eldridge Test To Discovery, Andrew Blair-Stanek
Andrew Blair-Stanek
The Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly has baffled and mystified both practitioners and scholars, casting aside the well-settled rule for evaluating motions to dismiss in favor of an amorphous “plausibility” standard. This Article argues that Twombly was not revolutionary but simply part of the Court’s ever-expanding application of the familiar three-factor Mathews v. Eldridge test. Misused discovery can deprive litigants of property and liberty interests, and in some cases Mathews requires the safeguard of dismissing the complaint. This Article’s insight explains Twombly’s origins and structure, while also suggesting a source for lower courts to draw …
The Eighth Amendment As A Warrant Against Undeserved Punishment, Scott Howe
The Eighth Amendment As A Warrant Against Undeserved Punishment, Scott Howe
Scott W. Howe
Should the Eighth Amendment prohibit all undeserved criminal convictions and punishments? There are grounds to argue that it must. Correlation between the level of deserts of the accused and the severity of the sanction represents the very idea of justice to most of us. We want to believe that those branded as criminals deserve blame for their conduct and that they deserve all of the punishments that they receive. The deserts limitation is also key to explaining the decisions in which the Supreme Court has rejected convictions or punishments as disproportional, including several major rulings in the new millennium. Yet, …
The Davis Good Faith Rule And Getting Answers To The Questions Jones Left Open, Susan Freiwald
The Davis Good Faith Rule And Getting Answers To The Questions Jones Left Open, Susan Freiwald
Susan Freiwald
The Supreme Court’s decision in United States v. Jones clearly established that use of GPS tracking surveillance constitutes a search under the Fourth Amendment. But the Court left many other questions unanswered about the nature and scope of the constitutional privacy right in location data. A review of lower court decisions in the wake of Jones reveals that, rather than begin to answer the questions that Jones left open, courts are largely avoiding substantive Fourth Amendment analysis of location data privacy. Instead, they are finding that officers who engaged in GPS tracking and related surveillance operated in good faith, based …
Psychopathy And Sentencing, Erik Luna
When The Cheering (For Gideon ) Stops: The Defense Bar And Representation At Initial Bail Hearings, Douglas Colbert
When The Cheering (For Gideon ) Stops: The Defense Bar And Representation At Initial Bail Hearings, Douglas Colbert
Douglas L. Colbert
This article suggests that the absence of representation at the beginning of a State criminal prosecution must come to a screeching halt. The criminal defense bar should take a leadership role and dedicate Gideon's anniversary to making certain that an accused's right to the effective assistance of counsel begins at the initial bail hearing. Indeed, guaranteeing vigorous representation should be the defense bar's number one priority.