Criminal Procedure Commons^™

Trauma: Community Of Color Exposure To The Criminal Justice System As An Adverse Childhood Experience, André Douglas Pond Cummings, Todd J. Clark, Caleb Gregory Conrad, Amy Dunn Johnson

University of Cincinnati Law Review

No abstract provided.

Law Enforcement Organization Relationships With Prosecutors, Daniel C. Richman

Faculty Scholarship

Although police departments and prosecutor’s o􀁽ces must closely collaborate, their organizational roles and networks, and the distinctive perspectives of their personnel, will inevitably and regularly lead to forceful dialogue and disruptive friction. Such friction can occasionally undermine thoughtful deliberation about public safety, the rule of law, and community values. Viewed more broadly, however, these interactions promote just such deliberation, which will become even healthier when the dialogue breaks out of the closed world of criminal justice bureaucracies and includes the public to which these bureaucracies are ultimately responsible. This chapter explores such organizational interactions and their value.

Fair Questions: A Call And Proposal For Using General Verdicts With Special Interrogatories To Prevent Biased And Unjust Convictions, Charles Eric Hintz

All Faculty Scholarship

Bias and other forms of logical corner-cutting are an unfortunate aspect of criminal jury deliberations. However, the preferred verdict system in the federal courts, the general verdict, does nothing to counter that. Rather, by forcing jurors into a simple binary choice — guilty or not guilty — the general verdict facilitates and encourages such flawed reasoning. Yet the federal courts continue to stick to the general verdict, ironically out of a concern that deviating from it will harm defendants by leading juries to convict.

This Essay calls for a change: expand the use of a special findings verdict, the general …

Women’S Votes, Women’S Voices, And The Limits Of Criminal Justice Reform, 1911–1950, Carolyn B. Ramsey

Publications

Deriving its vigor from the work of grassroots organizations at the state and local levels, the League of Women Voters (LWV) sought, in the first half of the twentieth century, to provide newly enfranchised women with a political education to strengthen their voice in public affairs. Local branches like the San Francisco Center learned from experience—through practical involvement in a variety of social welfare and criminal justice initiatives. This Article, written for a symposium commemorating the centennial of the Nineteenth Amendment, assesses the role of LWV leaders in California and especially San Francisco in reforming three aspects of the criminal …

Criminal Law In Crisis, Benjamin Levin

University of Colorado Law Review Forum

In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state. I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list. Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in some way …

Disaggregating Ineffective Assistance Of Counsel Doctrine: Four Forms Of Constitutional Ineffectiveness, Eve Brensike Primus

Articles

For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems. But the conventional understanding of Strickland as a problem for ineffectiveness claims gives the decision too much prominence because it treats Strickland as the test for all such claims. That is a mistake. Properly understood, the Supreme Court has recognized four different constitutional forms of trial attorney ineffectiveness, and Strickland’s two pronged test applies to only one of the four. If litigants and courts would notice this complexity and relegate Strickland to its proper place, it would …

Confession Obsession: How To Protect Minors In Interrogations, Cindy Chau

Journal of Race, Gender, and Ethnicity

No abstract provided.

Getting Out: Bruce Bryant’S Climb To Redemption Inside Prison, Rachel M. Rippetoe, Sean Sanders-Mills

Capstones

Bruce Bryant, 50, was convicted of the murder of 11-year-old Travis Lilley in June 1996. Bryant maintains he never fired a weapon that day in 1993. But he recognizes that his lifestyle as a young person — he started dealing drugs when he was 14 — contributed to an environment in which a stray bullet could take a young life. And for that reason, he’s spent most of his 25 years in prison working to help young people.

With at least 12 more years on his sentence, Bryant is now asking the governor for early release, with the hope that …

Dangerous Defendants, Sandra G. Mayson

All Faculty Scholarship

Bail reform is gaining momentum nationwide. Reformers aspire to untether pretrial detention from wealth (the ability to post money bail) and condition it instead on statistical risk, particularly the risk that a defendant will commit crime if he remains at liberty pending trial. The bail reform movement holds tremendous promise, but also forces the criminal justice system to confront a difficult question: What statistical risk that a person will commit future crime justifies short-term detention? What about lesser restraints, like GPS monitoring? Although the turn to actuarial risk assessment in the pretrial context has engendered both excitement and concern, the …

Defense Counsel And Public Defence, Eve Brensike Primus

Book Chapters

Public-defense delivery systems nationwide are grossly inadequate. Public defenders are forced to handle caseloads that no one could effectively manage. They often have no funding for investigation or expert assistance. They aren’t adequately trained, and there is little to no oversight of their work. In many jurisdictions, the public-defense function is not sufficiently independent of the judiciary or the elected branches to allow for zealous representation. The result is an assembly line into prison, mostly for poor people of color, with little check on the reliability or fairness of the process. Innocent people are convicted, precious resources are wasted, and …

Resurrecting Miranda's Right To Counsel, David Rossman

Faculty Scholarship

The regime created by Miranda v. Arizona is at this point in its history bankrupt both intellectually and in terms of practical effect. Justices who have joined the Court after Miranda have cut back its scope by stingy interpretations of the doctrine’s reach and effect. In practice, few suspects actually benefit from the way Miranda is now implemented in police stations and courtrooms. Given the failure of Miranda’s promise, can we envision an alternative? Here is one that may be politically palatable and doctrinally feasible, largely adopted from English practice:

1. Police would give the same Miranda warnings that they …

Pretrial Detention And Bail, Megan Stevenson, Sandra G. Mayson

All Faculty Scholarship

Our current pretrial system imposes high costs on both the people who are detained pretrial and the taxpayers who foot the bill. These costs have prompted a surge of bail reform around the country. Reformers seek to reduce pretrial detention rates, as well as racial and socioeconomic disparities in the pretrial system, while simultaneously improving appearance rates and reducing pretrial crime. The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who …

Representing The United States Government: Reconceiving The Federal Prosecutor's Role Through A Historical Lens, Scott Ingram

Notre Dame Journal of Law, Ethics & Public Policy

For nearly 100 years courts and legal scholars have held prosecutors to the “justice” standard, meaning that the prosecutor’s first duty is to ensure that justice is done. With this command, prosecutors have increased their discretion. The modern prosecutor’s power is unrivaled in the criminal justice system. Judges and defense attorneys have ceded some of their power to prosecutors. The prosecutor’s power has led a host of commentators to critique prosecutorial use of power for a variety of reasons. Rather than add to this voluminous literature by defending or critiquing prosecutorial power, this Article challenges the underlying assumption of prosecutorial …

Federal Review Of State Criminal Convictions: A Structural Approach To Adequacy Doctrine, Eve Brensike Primus

Michigan Law Review

Modern state postconviction review systems feature procedural labyrinths so complicated and confusing that indigent defendants have no realistic prospect of complying with the rules. When defendants predictably fail to navigate these mazes, state and federal courts deem their claims procedurally defaulted and refuse to consider those claims on their merits. As a result, systemic violations of criminal procedure rights—like the right to effective counsel—persist without judicial correction.

But the law contains a tool that, if properly adapted, could bring these systemic problems to the attention of federal courts: procedural adequacy. Procedural adequacy doctrine gives federal courts the power to ignore …

More Than Just A Potted Plant: A Court's Authority To Review Deferred Prosecution Agreements Under The Speedy Trial Act And Under Its Inherent Supervisory Power, Mary Miller

Michigan Law Review

In the last decade, the Department of Justice has increasingly relied on pretrial diversion agreements as a means of resolving corporate criminal cases short of prosecution. These pretrial diversion agreements—non-prosecution and deferred prosecution agreements—include substantive terms that a company must abide by for the duration of the agreement in order to avoid prosecution. When entering a deferred prosecution agreement, the Department of Justice files charges against the defendant corporation as well as an agreement outlining the variety of terms with which the company must comply. This delay in prosecution is permitted under the Speedy Trial Act, which provides an exception …

Trying To Fit A Square Peg Into A Round Hole: Why Title Ii Of The Americans With Disabilities Act Must Apply To All Law Enforcement Services, Michael Pecorini

Journal of Law and Policy

Police use of force has been subject to greater scrutiny in recent years in the wake of several high-profile killings of African Americans. Less attention, however, has been paid to the increasingly routine violent encounters between police and individuals with mental illness or intellectual and development disabilities (“I/DD”). This is particularly problematic, as police have become the de-facto first responders to these individuals and far too often police responses to these individuals result in tragedy.

This Note argues that the Americans with Disabilities Act requires law enforcement to provide reasonable accommodations during their interactions with and seizures of individuals with …

Federalism, Federal Courts, And Victims' Rights, Michael E. Solimine, Kathryn Elvey

Catholic University Law Review

One of the most striking developments in American criminal law and procedure in the past four decades has been the widespread establishment of victims’ rights at both the federal and state levels. A conspicuous exception to the success of the victims’ rights movement has been the failure of Congress to pass a proposed amendment to the U.S. Constitution that would uniformly establish such rights in all federal and state courts. Advanced by both private organizations and state officials, and with bipartisan support in Congress, bills establishing a Victims’ Rights Amendment (VRA) have been introduced several times in the past three …

Mental Health Courts: Bridging Two Worlds, Honorable Matthew J. D’Emic

Touro Law Review

No abstract provided.

Do We Know How To Punish?, Benjamin L. Apt

Benjamin L. Apt

A number of current theories attempt to explain the purpose and need for criminal punishment. All of them depend on some sort of normative basis in justifying why the state may penalize people found guilty of crimes. Yet each of these theories lacks an epistemological foundation; none of them explains how we can know what form punishments should take. The article analyses the epistemological gaps in the predominant theories of punishment: retributivism, including limited-retributivism; and consequentialism in its various versions, ranging from deterrence to the reparative theories such as restorative justice and rehabilitation. It demonstrates that the common putative epistemological …

#Snitches Get Stitches: Witness Intimidation In The Age Of Facebook And Twitter, John Browning

Pace Law Review

In order to better understand witness intimidation in the age of social media, one must examine both the forms it has taken as well as the response by law enforcement and the criminal justice system. As this article points out, the digital age has brought with it a host of new ways in which witnesses may be subjected to online harassment and intimidation across multiple platforms, and those means have been used to target not only victims and fact witnesses but even prosecutors and expert witnesses as well. The article will also examine potential responses to the problem of witness …

Correcting Criminal Justice Through Collective Experience Rigorously Examined, James S. Liebman, David Mattern

Faculty Scholarship

Federal and state law confers broad discretion on courts to administer the criminal laws, impose powerful penalties, and leave serious criminal behavior unpunished. Each time an appellate court reviews a criminal verdict, it performs an important systemic function of regulating the exercise of that power. Trial courts do the same when, for example, they admit or exclude evidence generated by government investigators. For decades, judicial decisions of this sort have been guided by case law made during the Supreme Court's Criminal Procedure Revolution of the 1960s and 1970s. It is becoming increasingly clear, however, that the rule-bound, essentially bureaucratic regulatory …

Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures, Eve Brensike Primus

Articles

Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon . Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform give n the many procedural obstacle s that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state …

Criminal Justice, Vikram Amar

Pepperdine Law Review

No abstract provided.

Quieting Cognitive Bias With Standards For Witness Communications, Melanie D. Wilson

Scholarly Articles

Last year, as part of a project to revise the ABA Criminal Justice Standards for Prosecution and Defense Functions, the ABA Criminal Justice Section initiated roundtable discussions with prosecutors, criminal defense lawyers, and academics throughout the United States. The Standards under review provide aspirational guidance for all criminal law practitioners. This Article stems from the Criminal Justice Section's undertaking. It considers the wording, scope, and propriety of several of the proposed changes that address lawyer-witness communications. It begins with a discussion of the effects of cognitive bias on these communications and explains why carefully tailored Standards may lessen the detrimental …

The Illusory Right To Counsel, Eve Brensike Primus

Articles

Imagine a woman wrongly accused of murdering her fianc6. She is arrested and charged with first-degree murder. If convicted, she faces a mandatory sentence of life without the possibility of parole. Her family scrapes together enough money to hire two attorneys to represent her at trial. There is no physical evidence connecting her to the murder, but the prosecution builds its case on circumstantial inferences. Her trial attorneys admit that they were so cocky and confident that she would be acquitted that they did not bother to investigate her case or file a single pre-trial motion. Rather, they waived the …

Litigation Strategies For Dealing With The Indigent Defense Crisis, Eve Brensike Primus

Articles

The indigent defense delivery system in the United States is in a state of crisis. Public defenders routinely handle well over 1,000 cases a year, more than three times the number of cases that the American Bar Association says one attorney can handle effectively. As a result, many defendants sit in jail for months before even speaking to their court-appointed lawyers. And when defendants do meet their attorneys, they are often disappointed to learn that these lawyers are too overwhelmed to provide adequate representation. With public defenders or assigned counsel representing more than 80% of criminal defendants nationwide, the indigent …

A Structural Vision Of Habeas Corpus, Eve Brensike Primus

Articles

As scholars have recognized elsewhere in public law, there is no hermetic separation between individual rights and structural or systemic processes of governance. To be sure, it is often helpful to focus on a question as primarily implicating one or the other of those categories. But a full appreciation of a structural rule includes an understanding of its relationship to individuals, and individual rights can both derive from and help shape larger systemic practices. The separation of powers principle, for example, is clearly a matter of structure, but much of its virtue rests on its promise to help protect the …

Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus

Articles

This Article suggests a structural reform that could solve two different problems in criminal defense representation. The first problem is that the right to effective trial counsel lacks a meaningful remedy. Defendants are generally not permitted to raise ineffective assistance of counsel claims until collateral review. Given that collateral review typically occurs years after trial, most convicted defendants have completed their sentences by that time and therefore have little incentive to pursue ineffectiveness claims. Moreover, there is no right to counsel on collateral review, and it is unrealistic to expect defendants to navigate the complicated terrain of an ineffectiveness claim …

The Ins And Outs, Stops And Starts Of Speedy Trial Rights In Colorado--Part Ii, H. Patrick Furman

Publications

This two-part article reviews the constitutional and statutory right to a speedy trial and discusses the case law interpreting that right. The first part was printed in July 2002.

See Part I at http://scholar.law.colorado.edu/articles/550/.

Do Jury Trials Encourage Harsh Punishment In The United States?, William T. Pizzi

Publications

No abstract provided.