Criminal Procedure Commons^™

Mitigating Foul Blows: Rethinking Procedural Barriers To Prosecutorial Misconduct Claims, Mary N. Bowman

Mary N. Bowman

For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. While courts are often quick to condemn prosecutorial misconduct, however, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel’s failure to object or concluding that the misconduct was merely harmless error. Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts’ attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary.

Cognitive bias research illuminates the reasons for, and solutions ...

Infusing The Meaning Of “Cruel And Unusual” Through The Digital Public Sphere: How The Internet Can Change The Debate On The Morality Of Capital Punishment, Adam A. Marshall

Adam A Marshall

In this paper, I suggest new strategies that abolitionists should adopt in the debate over the morality of the death penalty. As the Eighth Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society”, advocates for abolishing the death penalty should develop strategies based on the moral theories of Adam Smith to leverage the power of the internet and ensure all citizens feel the effects of the death penalty in order to stimulate debate over its morality. By examining these concepts through the case of Troy Davis, we can see how ...

Solving Batson, Tania Tetlow

Tania Tetlow

The Supreme Court faced an important ideological choice when it banned the racial use of peremptory challenges in Batson v. Kentucky. It could either ground the rule in equality rights designed to protect potential jurors from stereotyping, or it could base the rule on the defendant’s Sixth Amendment right to an “impartial jury” drawn from a fair cross-section of the community. By choosing Equal Protection analysis, the Court turned away from the defendant and the fair functioning of the criminal justice system and instead focused on protecting potential jurors. The Court thus built fatal error into the Batson rule ...

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.

Rationality, Insanity, And The Insanity Defense: Reflections On The Limits Of Reason, Theodore Y. Blumoff

Theodore Y. Blumoff

Individuals who suffer from chronic paranoid ideations live with deeply embedded conspiratorial delusions that are sometimes accompanied by unwanted visual and/or auditory stimuli, sometime neither: just psychotic delusions in which they feel as if they have lost control of their lives – and of course they have, albeit not from the performances of foreign forces. When those perceived forces persevere for even a fairly short period of time, they can dictate the performance of evil deeds that the individual ultimately feels helpless to oppose. What observations and findings from neuroscience make clear is that such individuals do not lack knowledge ...

Finding The Foregone Conclusions Of Encryption, Timothy A. Wiseman

Timothy A Wiseman

Encryption is commonly used to protect private information, for both legitimate and illegitimate reasons. Courts have been struggling to determine when, within the bounds of the Fourth and Fifth Amendments, the Courts may compel a defendant in a criminal case to decrypt their data.

This article argues that a broad use of the Forgone Conclusion doctrine would permit the Courts to order a defendant to decrypt their data when the prosecution can show with reasonable particularity the existence and location of the encrypted documents, that they are likely to be incriminating, and that the government can authenticate them without the ...

What Is An Accident?, Daniel B. Yeager

daniel b yeager

Please consider for publication my attached 5000-word, 28-page, lightly annotated (39 footnotes) Essay, entitled “What Is an Accident?”

Here I attempt to decode the most frequently proferred excuse in and out of law. Surprisingly, as central as accidents are to questions of responsibility, their criteria have received almost no attention at all. From what I can tell, mine is the first sustained attempt to identify the grammar of accidents, an endeavor that follows up on similar efforts to do the same with the excuse of mistake in my book J.L. Austin and the Law: Exculpation and the Explication of ...

Furtive Encryption: Power, Trust, And The Constitutional Cost Of Collective Surveillance, Jeffrey L. Vagle

Jeffrey L Vagle

Recent revelations of heretofore secret U.S. government surveillance programs have sparked national conversations about their constitutionality and the delicate balance between security and civil liberties in a constitutional democracy. Among the revealed policies asserted by the National Security Agency (NSA) is a provision found in the “minimization procedures” required under Section 702 of the Foreign Intelligence Surveillance Act of 1978. This provision allows the NSA to collect and keep indefinitely any encrypted information collected from domestic communications—including the communications of U.S. citizens. That is, according to the U.S. government, the mere fact that a U.S ...

Back To The Future: The Constitution Requires Reasonableness And Particularity—Introducing The “Seize But Don’T Search” Doctrine, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Issuing one-hundred or fewer opinions per year, the United States Supreme Court cannot keep pace with opinions that match technological advancement. As a result, in Riley v. California and United States v. Wurie, the Court needs to announce a broader principle that protects privacy in the digital age. That principle, what we call “seize but don’t search,” recognizes that the constitutional touchstone for all searches is reasonableness.

When do present-day circumstances—the evolution in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the ...

Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind

Tonja Jacobi

It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between police investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited police resources to develop countermeasures, police will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game theoretic model that shows that when police investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale ...

Crossing The Fault Line In Corporate Criminal Law, Amy Sepinwall

Amy J. Sepinwall

Why is it that so few bankers have been prosecuted and punished in the wake of the financial meltdown? Pundits are quick to point to inadequate funding for addressing financial crime or, more cynically, the revolving door between government regulatory agencies and Wall Street. But the ultimate answer may be at once more banal and more dispiriting, lying as it does at the very foundations of our criminal law.

The conception of responsibility underpinning much of our criminal law contemplates the individual in isolation from others. As a result, our criminal law has tremendous difficulty tracking culpability in organizational contexts ...

Constructing Autonomy: A Kantian Framework, Bailey H. Kuklin

Bailey H. Kuklin

No abstract provided.

Bounties For Bad Behavior: Rewarding Culpable Whistleblowers Under The Dodd-Frank Act And Internal Revenue Code, Jennifer M. Pacella

Jennifer M. Pacella, Esq.

In 2012, Bradley Birkenfeld received a $104 million reward or “bounty” from the Internal Revenue Service (“IRS”) for blowing the whistle on his employer, UBS, which facilitated a major offshore tax fraud scheme by assisting thousands of U.S. taxpayers to hide their assets in Switzerland. Birkenfeld does not fit the mold of the public’s common perception of a whistleblower. He was himself complicit in this crime and even served time in prison for his involvement. Despite his conviction, Birkenfeld was still eligible for a sizable whistleblower bounty under the IRS Whistleblower Program, which allows rewards for whistleblowers who ...

Cohabiting With The Accused: The Formal Limits Of Spousal Privilege Affirmed In Van Der Heijden V. Netherlands, Shae Fitzpatrick

Boston College International and Comparative Law Review

In the wake of Europe’s evolving social landscape of family life, the European Court of Human Rights’ (ECtHR) decision in Van der Heijden v. Netherlands sheds light on the scope of spousal privilege. The ECtHR found that the Netherlands’ interference in Van der Heijden’s nontraditional family life did not violate her Article 8 right guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms . In its decision, the ECtHR upheld the formal limits of Dutch spousal privilege even though it did not protect Van der Heijden in her de facto relationship with the accused. Despite ...

United States V. Dire: The Somali Pirates And The Fourth Circuit's Choice To Apply An Evolving "Law Of Nations" To The Problem, Samuel B. Richard

Boston College International and Comparative Law Review

Maritime piracy poses a grave threat to global shipping. In the United States, federal law criminalizes piracy as defined by international law, or the law of nations. Recently, in United States v. Dire, the Fourth Circuit Court of Appeals interpreted the law of nations surrounding piracy. Dire concerned the conviction of five Somali nationals under the piracy statute. The defendants argued that piracy requires a robbery, and since no robbery occurred, their convictions should be overturned. Examining two differing approaches by lower District Courts, the Fourth Circuit concluded that piracy does not require robbery because the law of nations evolves ...

Prosecutor V. Taylor: The Implications For Bashar Al-Assad, Steven J. Rose

Boston College International and Comparative Law Review

Charles Taylor was the first sitting head of state to be indicted, tried, and convicted by an international criminal tribunal, the Special Court for Sierra Leone. This comment explores the procedural and structural similarities between the Special Court for Sierra Leone and the International Criminal Court. This comment then compares the evidence used to convict Charles Taylor and the evidence currently available about possible war crimes and crimes against humanity ongoing in Syria. Finally, this comment argues that Bashar al-Assad should be tried before the International Criminal Court, and that the Taylor case can be used as a template, due ...

The Expense Of Expansion: Judicial Innovation At The Special Tribunal For Lebanon, Erik Stier

Boston College International and Comparative Law Review

The Special Tribunal for Lebanon (STL) is a hybrid international tribunal tasked with prosecuting and punishing those responsible for the 2005 bombing that killed former Lebanese Prime Minister Rafik Hariri. As the first international tribunal to try purely domestic crimes, the STL is a unique judicial body that employs a number of novel procedures. One such procedural rule allowed the STL Pre-Trial Judge to submit questions on applicable law to the Appeals Chamber prior to confirming any indictments. Responding in the form of an interlocutory decision, the Appeals Chamber made the groundbreaking assertion that customary international law on terrorism had ...

A Provocative Defense, Aya Gruber

Aya Gruber

It is common wisdom that the provocation defense is, quite simply, sexist. For decades, there has been a trenchant feminist critique that the doctrine reflects and reinforces masculine norms of violence and shelters brutal domestic killers. The critique is so prominent that it appears alongside the doctrine itself in leading criminal law casebooks. The feminist critique of provocation embodies several claims about provocation's problematically gendered nature, including that the defense is steeped in chauvinist history, treats culpable sexist killers too leniently, discriminates against women, and expresses bad messages. This article offers a (likely provocative) defense of the provocation doctrine ...

Ten Misleadings To Wrongful Convictions In Chinese Criminal Justice, Jiahong He

Jiahong He

1. The investigation model from confession to evidence.
2. The improper deadlines for solving criminal cases.
3. The one-sided and prejudicial collection of evidence.
4. The misinterpretation of scientific evidence.
5. The continued use of torture to extract confessions.
6. The bowing to public opinions in contradiction to legal principles.
7. The nominal checks among the police, the procuratorates and the courts.
8. The de-functionalization of courtroom trials.
9. The unlawfully extended custody.
10. The reducing of punishment in a case of doubt.

Drugs And Violence, Shima Baradaran

Shima Baradaran

The war on drugs has increased the United States prison population by tenfold. The foundation for the war on drugs and unparalleled increase in prisoners rely on the premise that drugs and violence are linked. Politicians, media, and scholars continue to advocate this view either explicitly or implicitly. This Article identifies the pervasiveness of this premise, and debunks the link between drugs and violence. It demonstrates that a connection between drugs and violence is not supported by historical arrest data, current research, or independent empirical evidence. That there is little evidence to support the assumption that drugs cause violence is ...