Criminal Procedure Commons^™

Elements Of Crimenal Conduct, Mohamad Ali Ali Yousefkhani Mr

Mohamad Ali Ali Yousefkhani

The thing that sometimes irks people and family are destitution.in many countries we see that some families drift a part due to the said subject, and less crimes are happened because of sexual and love. Therefore in this topic we want to consider the most important elements that caused into the above subject.

The Widespread Handcuffing Of Arrestees In The United States, Francois Quintard-Morenas

Francois Quintard-Morenas

Handcuffing in the United States has become ubiquitous, regardless of age, offense, or circumstances. Across the nation, children, teenagers, women, men, and elders are handcuffed upon arrest for the most minor offenses. Their ages range from five to ninety-seven. This phenomenon has received little attention from legal scholars, despite its dramatic reversal of a long-standing common law rule.

At common law, police officers were prohibited from handcuffing arrestees absent special circumstances, such as a threat to safety, resistance, or risk of escape. Established in nineteenth-century England and embraced early by U.S. courts, this principle still prevails in most common law …

An Empirical Evaluation Of The Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, And Geographic Disparities?, John J. Donohue

John Donohue

This article analyzes the 205 death-eligible murders leading to homicide convictions in Connecticut from 1973–2007 to determine if discriminatory and arbitrary factors influenced capital outcomes. A regression analysis controlling for an array of legitimate factors relevant to the crime, defendant, and victim provides overwhelming evidence that minority defendants who kill white victims are capitally charged at substantially higher rates than minority defendants who kill minorities, that geography influences both capital charging and sentencing decisions (with the location of a crime in Waterbury being the single most potent influence on which death-eligible cases will lead to a sentence of death), and …

Reforma A La Justicia Penal Juvenil Y Adolescentes Privados De Libertad En Chile: Aportes Empíricos Para El Debate, Ricardo Lillo, Maximo Langer

Ricardo Lillo

Este artículo tiene por objeto brindar y analizar algunos datos empíricos sobre el funcionamiento de la Justicia Penal Adolescente luego de siete años de la entrada en vigencia de la Ley N° 20.084. Uno de los objetivos de esta reforma fue adecuar la legislación en la materia a los estándares del Derecho Internacional de los Derechos Humanos, entre los cuales se encuentran el criterio de intervención penal especial reducida o moderada y la utilización de la privación de libertad como medida de ultima ratio. Nuestros datos indican que con posterioridad a su entrada en vigencia han aumentado tanto el número …

Navigating The Rock And The Whirlpool: Managing Critical Incident Investigations And Garrity, Joseph R. Sullivan

Joseph R Sullivan

This article presents a best practice model for managing officer-involved shooting or other critical incident investigations on behalf of the officer; one that protects the officer’s legal interests and still preserves the most accurate factual information for investigators. Section I details the causes and effects of critical incident amnesia as it relates to officer-involved shootings. Section II analyzes the relationship between a public employee’s Fifth Amendment privilege against self-incrimination and a public employer’s ability to compel work related statements. Section III discusses the practical implications and aftermath of an officer-involved shooting or other critical incident and section IV synthesizes the …

Preliminayr Study On The Advisory Jurisdiction Of International Criminal Court, Ying Yang

Ying Yang

The Rome Statute and the Regulations of the International Criminal Court stipulate the very detailed contentious jurisdiction, but the Advisory Jurisdiction are not mentioned. Advisory jurisdiction, as the complement of the contentious jurisdiction, not only provides the other aspect support of legal basis for the settlement of international disputes, but also provides a new way of legal remedies for the statutory advisory qualified international organizations and other subjects of international law. Therefore, I try to suggest that the International Criminal Court can establish an Advisory Committee that includes two parts, one part is the Advisory Committee on Legal Texts, the …

Hall V. Florida: The Death Of Georgia's Beyond A Reasonable Doubt Standard, Adam Lamparello

Adam Lamparello

Welcome: We’re Glad Georgia is On Your Mind.

Georgia is on many minds as Warren Hill prepares for a state court hearing to once again begin the process of trying to show that he is intellectually disabled. As Warren Hill continues to flirt with death, one must ask, is Georgia really going to execute someone that nine experts and a lower court twice found to be mentally retarded? The answer is yes, and the Georgia courts do not understand why we are scratching our heads. The answer is simple: executing an intellectually disabled man is akin to strapping a ten-year …

Between Killing And Letting Die In Criminal Law, Roni M. Rosenberg

Roni M Rosenberg

ABSTRACT The distinction between act and omission is deeply embedded in our legal thinking. Criminal law distinguishes sharply between harmful actions and harmful omissions and, consequently, between killing and letting die. The distinction between act and omission is not made solely under criminal law as it is rooted in the foundations of common morality, which emphasizes not only the results but also the conduct that produced those results.Nevertheless, since the beginning of the 1960s, there has been a significant movement to attack and criticize the moral distinction between killing and letting die. The primary question is whether there is, in …

Two Models Of "Absence Of Movement" In Criminal Jurisprudence, Roni M. Rosenberg

Roni M Rosenberg

ABSTRACTThe distinction between act and omission is deeply embedded in our legal thinking. In criminal jurisprudence, in order to convict someone of committing an act that caused harm, any act will suffice .On the other hand, to convict based on an omission that caused harm it is necessary to identify a duty to act on the part of the defendant, such that breach of that duty caused the harm.The generally accepted approach in criminal jurisprudence is to define act and omission under the bodily movement test. This essay critiques that approach and points to the fact that American jurisprudence is …

Immigrants Unshackled: The Unconstitutional Use Of Indiscriminate Restraints, Fatma E. Marouf

Fatma E Marouf

This Article challenges the constitutionality of indiscriminately restraining civil immigration detainees during removal proceedings. Not only are immigration detainees routinely placed in handcuffs, leg irons, and belly chains without any individualized determination of the need for restraints, but Immigration and Customs Enforcement (ICE), the prosecuting party, makes the decisions about the use of restraints, rather than the judge. After examining the rationale for the well-established prohibition against the indiscriminate use of restraints during criminal and civil jury trials, and discussing how some courts have extended this rationale to bench trials, this Article contends that ICE’s practice violates substantive and procedural …

The Rules Of Engagement, David D. Butler

David D. Butler

First impressions are the eye of the needle through which all subsequent threads are drawn. Zealous advocates take conrol of the Courtroom even before the prosecution is through the door. Get to the Courtroom first. Secure the table and chairs closer to the jury. Pick up all the chalk by the black board. When the befuddled county attorney is looking for a piece of chalk, hand him or her a nice new piece from the box you have in your attache case. Zealous advocates get to the Courtroom fiirst, with the most. Often, a zealous advocate can lift his or …

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.

Reflections And Questions With Reference To Establishment Of European Public Prosecutor’S Office, Magdolna Hajdu

Magdolna Hajdu

Abstarct

The European Commission published a proposal of new Council Regulation on the establishment of European Public Prosecutor’s Office and the reform of the Eurojust attached with the Communication on OLAF on 17 July 2013, to protect financial interests of the European Union in line with policy developed by European Commission in 2011.In spite of Parliaments of 11 Member States noted the possible harm of the principle of proportionality the European Public Prosecutor’s Office seems to establish at this moment. In spite of several aspects are of importance of new proposed new body of European Union there are discrepancies even …

Friend Or Faux: The Trademark Counterfeiting Act's Inability To Stop The Sale Of Counterfeit Sporting Goods, Jennifer Riso

Jennifer Riso

The demand for counterfeit sporting goods, such as jerseys and other apparel, is on the rise as the prices of authentic goods continue to increase. The Trademark Counterfeiting Act of 1984 criminalizes the import and sale of counterfeit goods, but is ineffective at addressing the demand side of counterfeit goods. This paper analyzes the history behind the Act and recommends ways to ensure that the act will stay relevant as technology makes it easier to purchase counterfeit goods.

Demon At The Back Door: Rise Of The Mexican Drug Cartels, Oliver T. Beatty

Oliver T Beatty

This article addresses the rise of the violent Mexican drug cartels and searches within the legislative and law enforcement toolbox on how to dethrone the epidemic of violence on the border. The Mexican drug cartels rose from the ashes and structural framework of the Colombian cocaine cartels which gave these new criminal empires their routes, connections, and ease at taking over Pablo Escobar’s monopoly on the drug trafficking game. In addressing the origins of the cartels this article explores the trajectory of cocaine from imported medical remedy to criminalized substance. Additionally this article explores how the Italian mafia was dismantled …

You Booze, You Bruise, You Lose: Analyzing The Constitutionality Of Florida’S Involuntary Blood Draw Statute In The Wake Of Missouri V. Mcneely, Francisco D. Zornosa

Francisco D Zornosa

No abstract provided.

Quasi-Inquisitorialism: Accounting For Deference In Pretrial Criminal Procedure, Jennifer E. Laurin

Jennifer E. Laurin

The actions of police and prosecutors that take place long before a criminal trial are frequently critical to, even dispositive of the accuracy and reliability of case disposition. At the same time the regulatory touch of constitutional criminal procedure in the pretrial realm is notoriously, even insistently, light. Proposals to address actual or risked deficiencies in this arena have proliferated in recent years, exemplified by pushes for social-science-rooted investigative best practices, for broader defense access to evidence prior to trial, for more oversight in plea bargaining, and so on. But in the face of these critiques, broad pretrial discretion largely …

The Perverse Effects Of Efficiency In Criminal Process, Darryl K. Brown

Darryl K. Brown

The need for greater efficiency in legal process is an undisputed premise of modern policy, and efficiency’s virtues hardly merit debate, notably by the U.S. Supreme Court. A central part of the story of modern adjudication is the steady gains in case processing efficiency. This, above all else, explains the “vanishing trial” and its replacement by civil settlement and, in criminal courts, by plea bar-gaining.

Defining efficiency in any context, however, is a more complicated endeavor than courts, policymakers, and many commentators commonly acknowledge. It requires first defining ends and means, and even whether a given practice is an end …

Is There A Justification For Imposing Criminal Liability On Corporate Managers In Tax Legislation?, Karnit Malka

Karnit Malka

No abstract provided.

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Conditional Release Under The Bail Reform Act: The Solution To Pretrial Detention For ‘Economic Harm’, Edward C. Nazzaro Mr.

Edward C Nazzaro Mr.

This comment examines whether the language of the Federal Bail Statute and the threat of ‘economic harm’ is sufficient to take away the freedom of an accused person awaiting trial. The introduction discusses Bernard ‘Bernie’ Madoff and the conditions of pretrial release used by United States Magistrate Judges to allow Madoff to remain free until conviction. After introducing this concept with a high-profile defendant, the comment provides an overview of the Bail Reform Act and how it was changed in 1984 to include ‘danger’ as a relevant factor in pretrial detention matters, adding to the preexisting power to detain defendants …

Whose Metadata Is It Anyways? Why Riley V. California Illustrates That The National Security Administration's Bulk Data Collection Is A Fourth Amendment Problem, Jesse S. Weinstein

Jesse S Weinstein

No abstract provided.

The Framers' Fourth Amendment Exclusionary Rule: The Mounting Evidence, Roger Roots

Roger Roots

This article continues to show evidence that the Framers of the Bill of Rights in 1791 likely intended for the exclusionary rule to follow the Fourth Amendment.

Amicus Brief -- Freddie Lee Hall V. State Of Florida, Adam Lamparello, Charles Maclean

Adam Lamparello

IQ cutoffs violate the Constitution. In Atkins v. Virginia, the United States Supreme Court recognized three distinct components to intellectual disability: (1) an intelligence quotient; (2) deficits in adaptive functioning; and (3) onset prior to eighteen. The Florida Supreme Court interpreted Fla. Stat. § 921.137(1) to bar evidence of adaptive disability and early onset if a defendant scored above a 70 on an IQ test. As Justice Perry recognized in his partial dissent, that interpretation will lead to the execution of a retarded man. The Amicus brief argues that the Florida Supreme Court's decision should be reversed because it prohibits …

Making Civil Immigration Detention “Civil,” And Examining The Emerging U.S. Civil Detention Paradigm, Mark Noferi

Mark L Noferi

In 2009, the Obama Administration began to reform its sprawling immigration detention system by asking the question, “How do we make civil detention civil?” Five years later, after opening an explicitly-named “civil detention center” in Texas to public criticism from both sides, the Administration’s efforts have stalled. But its reforms, even if fully implemented, would still resemble lower-security criminal jails.

This symposium article is the first to comprehensively examine the Administration’s efforts to implement “truly civil” immigration detention, through new standards, improved conditions, and greater oversight. It does so by undertaking the first descriptive comparison of the U.S.’s two largest …

Aaron Swartz’S Legacy, Rebecca Gould

Rebecca Gould

“Aaron Swartz’s Legacy,” Academe: Magazine of the American Association of University Professors 95(1): 19-23. Special issue on the “New Public Intellectual.” http://www.aaup.org/article/aaron-swartz%E2%80%99s-legacy#.UtZGm2RDtmk

El Análisis De Teléfonos Móviles Como Técnica De Investigación Criminal, Hector Zayas Gutierrez

Héctor Zayas Gutiérrez

Resumen. El artículo revisa en su primera parte aspectos técnicos relacionados con el funcionamiento de las tecnologías celulares y su potencial como fuentes de prueba en el proceso penal. En la segunda se describen los límites establecidos en el orden jurídico mexicano, tanto en sus fuentes legislativas como en la jurisprudencia; en la tercera se realiza un ejercicio de derecho comparado, señalando la regulación constitucional de la técnica de investigación a la luz de la Cuarta Enmienda de la Constitución de los Estados Unidos de América.

The Criminalization Of Consensual Adult Sex After Lawrence, Richard Broughton

Richard Broughton

Ten years after the Supreme Court’s supposedly momentous decision in Lawrence v. Texas, the case still confounds not merely constitutional law, but the criminal law of sex, as well. This Article seeks to advance the literature on both Lawrence and the criminal law by examining Lawrence’s impact upon sex crimes that involve consensual, private, non-prostitution conduct between adults. It positions Lawrence as a relatively conservative opinion as to sex crimes generally, especially in light of the “Exclusions Paragraph” on page 578 of the Court’s opinion. Still, Lawrence (albeit ambiguously) must protect some form of private, consensual, non-prostitution adult sexuality beyond …

The Criminalization Of Consensual Adult Sex After Lawrence, Richard Broughton

Richard Broughton

Ten years after the Supreme Court’s supposedly momentous decision in Lawrence v. Texas, the case still confounds not merely constitutional law, but the criminal law of sex, as well. This Article seeks to advance the literature on both Lawrence and the criminal law by examining Lawrence’s impact upon sex crimes that involve consensual, private, non-prostitution conduct between adults. It positions Lawrence as a relatively conservative opinion as to sex crimes generally, especially in light of the “Exclusions Paragraph” on page 578 of the Court’s opinion. Still, Lawrence (albeit ambiguously) must protect some form of private, consensual, non-prostitution adult sexuality beyond …

Beyond Paroline: Ensuring Meaningful Remedies For Child Pornography Victims At Home And Abroad, W. Warren H. Binford

W. Warren H. Binford

This article considers how the United States could fulfill its international treaty obligations to support the full restoration of child pornography victims in the aftermath of the recent decision of the United States Supreme Court in Paroline v. United States. The article details how the United States provided leadership historically in creating a skeletal legal framework domestically and internationally to help combat child pornography and restore victims, and highlights how that framework is failing victims on a near-universal basis in an age dominated by technological innovation and globalization. The article proposes the adoption and implementation of effective domestic and international …