Digital Commons Network^™

Prosecution Appeals Of Court-Ordered Midtrial Acquittals: Permissible Under The Double Jeopardy Clause?, David S. Rudstein

Catholic University Law Review

No abstract provided.

Preplea Disclosure Of Impeachment Evidence, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Response to R. Michael Cassidy, Plea Bargaining, Discovery, and the Intractable Problem of Impeachment Disclosures, 64 Vand. L. Rev. 1429 (2011)

The Invalidity Of A Plea Of Guilty To A Criminal Offense Made By Video Teleconferencing When The Defendant Is Not Present In Open Court, William R. Simpson Jr., Clint Miller, David Sudduth

University of Arkansas at Little Rock Law Review

A guilty plea by a defendant is more than an admission of conduct; it is the nail in the coffin that closes the case and results in conviction. Despite the critical importance of this moment, Arkansas district and circuit courts are more commonly taking guilty pleas from defendants by video teleconferencing (VTC) instead of requiring defendants to be physically present in the courtroom. This essay sets forth three separate arguments in support of the notion that a guilty plea to a criminal offense by VTC without the defendant being present in open court is invalid as a matter of Arkansas …

Theorizing Mental Health Courts, E. Lea Johnston

UF Law Faculty Publications

To date, no scholarly article has analyzed the theoretical basis of mental health courts, which currently exist in forty-three states. This Article examines the two utilitarian justifications proposed by mental health court advocates—therapeutic jurisprudence and therapeutic rehabilitation—and finds both insufficient. Therapeutic jurisprudence is inadequate to justify mental health courts because of its inability, by definition, to resolve significant normative conflict. In essence, mental health courts express values fundamentally at odds with those underlying the traditional criminal justice system. Furthermore, the sufficiency of rehabilitation, as this concept appears to be defined by mental health court advocates, depends on the validity of …

Expectations Of Privacy In Social Media, Stephen E. Henderson

Faculty Articles

This article, which largely tracks my remarks at Mississippi College’s Social Media Symposium, examines expectations of privacy in social media such as weblogs (blogs), Facebook pages, and Twitter tweets. Social media is diverse and ever-diversifying, and while I address some of that complexity, I focus on the core functionality, which provides the groundwork for further conversation as the technology and related social norms develop. As one would expect, just as with our offline communications and other online communications, in some we have an expectation of privacy that is recognized by current law, in some we have an expectation of privacy …

The North Carolina Racial Justice Act: An Essay On Substantive And Procedural Fairness In Death Penalty Litigation, Neil Vidmar

Faculty Scholarship

No abstract provided.

False Convictions, Phoebe C. Ellsworth, Samuel R. Gross

Book Chapters

False convictions have received a lot of attention in recent years. Two-hundred and forty-one prisoners have been released after DNA testing has proved their innocence, and hundreds of others have been released without DNA evidence. We now know quite a bit more about false convictions than we did thirty years ago - but there is much more that we do not know, and may never know.

The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar

Articles

There has been a good deal of talk lately to the effect that Miranda1 is dead or dying-or might as well be dead.2 Even liberals have indicated that the death of Miranda might not be a bad thing. This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."4

Forging Links And Renewing Ties: Applying The Principles Of Restorative And Procedural Justice To Better Respond To Criminal Offenders With A Mental Disorder, Thomas L. Hafemeister, Sharon G. Garner, Veronica E. Bath

Buffalo Law Review

No abstract provided.

Race, Brain Science, And Critical Decision-Making In The Context Of Constitutional Criminal Procedure, Christian M. Halliburton

Faculty Articles

This article surveys current and emerging neuroscience research that is uncovering deep cognitive-level and unconscious connections between race or racial constructs, perception, and decision making. Using those findings as a platform for consideration, the article addresses several implications that these cognitive patterns might have for the particular kinds of perceptual experiences and decision making opportunities that are relevant in the context of criminal law enforcement and police procedure, and begins to evaluate the influence that these cognitive trends may have on the development of specific legal regulatory mechanisms and their application to the larger law enforcement complex.

Models Of Justice To Protect Innocent Persons, Tim Bakken

NYLS Law Review

No abstract provided.

Pretrial Incentives, Post-Conviction Review, And Sorting Criminal Prosecutions By Guilt Or Innocence, Samuel R. Gross

NYLS Law Review

No abstract provided.

The Penal Order: Prosecutorial Sentencing As A Model For Criminal Justice Reform?, Stephen C. Thaman

All Faculty Scholarship

This chapter traces the history of the penal order from its earliest roots through its consolidation as a normal alternative form of procedure in Germany. It compares the types of penal order procedures found in modern criminal procedure codes, and it compares penal orders with other “consensual” procedural modes that also involve considerable prosecutorial influence in determination of the level of guilt and punishment: diversion, pleas and stipulations of guilt, and abbreviated trials based on the contents of the preliminary investigation dossier. Finally, it explores whether the penal order, could eventually become a model for the consensual resolution of all …

Criminal Courts And Procedure, Stephen C. Thaman

All Faculty Scholarship

This chapter provides both a historical and modern perspective on criminal procedure around the world.

A Crisis In Federal Habeas Law, Eve Brensike Primus

Reviews

Everyone recognizes that federal habeas doctrine is a mess. Despite repeated calls for reform, federal judges continue to waste countless hours reviewing habeas petitions only to dismiss the vast majority of them on procedural grounds. Broad change is necessary, but to be effective, such change must be animated by an overarching theory that explains when federal courts should exercise habeas jurisdiction. In Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ, Professors Nancy King and Joseph Hoffmann offer such a theory. Drawing on history, current practice, and empirical data, King and Hoffmann find unifying themes …

Our Broken Misdemeanor Justice System: Its Problems And Some Potential Solutions, Eve Brensike Primus

Reviews

Although misdemeanors comprise an overwhelming majority of state criminal court cases, little judicial and scholarly attention has been focused on how misdemeanor courts actually operate. In her article, Misdemeanors, Alexandra Natapoff rights this wrong and explains how the low-visibility, highly discretionary decisions made by actors at the misdemeanor level often result in rampant discrimination, incredible inefficiency, and vast miscarriages of justice. Misdemeanors makes a significant contribution to the literature by refocusing attention on the importance of misdemeanor offenses and beginning an important dialogue about what steps should be taken going forward to fix our broken misdemeanor justice system.

Challenging The Habeas Process Rather Than The Result, Justin F. Marceau

Washington and Lee Law Review

Habeas scholarship has repeatedly assessed whether the Antiterrorism and Effective Death Penalty Act’s (AEDPA’s) limitations on federal habeas relief were as severe in practice as they appeared to be on paper. By analyzing recent doctrinal shifts—particularly focusing on two Supreme Court decisions from this Term—and substantial new empirical data, this Article acknowledges that AEDPA’s bite has reached substantial proportions, in many ways exceeding the initial concerns and hype surrounding the legislation. More importantly, after acknowledging that federal habeas relief from state court convictions has become “microscopically” rare, this Article considers what the rarity of relief ought to mean as a …

Is Color Blind Justice Also Culturally Blind? The Cultural Blindness In Justice, Shiv Narayan Persaud

Journal Publications

As diverse ethnic groups continue to experience numeric growth and societal grounding in America, their advocacies for culturally competent representation within the legal system cannot be ignored or underplayed. Undoubtedly, some professions such as mental and physical health, and their related sectors, have developed and continue to integrate cultural competencies into their respective practices. Others such as the legal profession seem to lag in their advocacies and promotion of culturally competent practices.

In the criminal justice system, where discretionary legal decision-making authority is commonplace and may grossly affect the civil liberties of the citizenry, a paucity of standards requiring cultural …

Exonerating The Innocent: Pretrial Innocence Procedures, Tim Bakken, Lewis M. Steel

NYLS Law Review

No abstract provided.

Innocence Is Different: Taking Innocence Into Account In Reforming Criminal Procedure, D. Michael Risinger, Lesley C. Risinger

NYLS Law Review

No abstract provided.

Convicting Lennie: Mental Retardation, Wrongful Convictions, And The Right To A Fair Trial, John H. Blume, Sheri Lynn Johnson, Susan E. Millor

NYLS Law Review

No abstract provided.

Pretrial Procedures For Innocent People: Reforming Brady, Lissa Griffin

NYLS Law Review

No abstract provided.

Dallas County Conviction Integrity Unit And The Importance Of Getting It Right The First Time, Mike Ware

NYLS Law Review

No abstract provided.

Freeing The Guilty Without Protecting The Innocent: Some Skeptical Observations On Proposed New “Innocence” Procedures, Paul G. Cassell

NYLS Law Review

No abstract provided.

Growing Up Policed In The Age Of Aggressive Policing Policies, Brett G. Stoudt, Michelle Fine, Madeline Fox

NYLS Law Review

No abstract provided.

Coming Clean: The Erosion Of Juvenile Miranda Rights In New York State, Justin Ashenfelter

NYLS Law Review

No abstract provided.

Innocence And Federal Habeas After Aedpa: Time For The Supreme Court To Act, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.

No Secrets Allowed: A Prosecutor’S Obligation To Disclose Inadmissible Evidence, Abigail B. Scott

Catholic University Law Review

No abstract provided.

The Innocence Effect, Avishalom Tor, Oren Gazal-Ayal

Journal Articles

Nearly all felony convictions - about 95 percent - follow guilty pleas, suggesting that plea offers are very attractive to defendants compared to trials. Some scholars argue that plea bargains are too attractive and should be curtailed because they facilitate the wrongful conviction of innocents. Others contend that plea bargains only benefit innocent defendants, providing an alternative to the risk of a harsher sentence at trial. Hence, even while heatedly disputing their desirability, both camps in the debate believe that plea bargains commonly lead innocents to plead guilty. This Article shows, however, that the belief that innocents routinely plead guilty …

Exhausted, Giovanna Shay

Faculty Scholarship

The Prison Litigation Reform Act (PLRA) contains an administrative exhaustion provision that was interpreted by the Supreme Court in Woodford v. Ngo in 2006 to impose a procedural default component. This piece argues that we should take seriously Justice Breyer’s Woodford concurrence, in which he noted that administrative law doctrine contains well-established exceptions to exhaustion. Although this point might at first seem inconsistent with other Supreme Court cases interpreting the PLRA, this Article argues that Justice Breyer’s concurrence can be reconciled with those opinions. PLRA exhaustion invokes regular administrative law exhaustion doctrine so long as it is not inconsistent with …