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Annual Survey Of Virginia Law: Criminal Law And Procedure, Michael Edmund O'Neill

University of Richmond Law Review

The Commonwealth of Virginia is so named (as opposed to being denominated simply a "state") because the term "commonwealth" is used to indicate a government in which "supreme power is vested in the people."' That term is particularly apt, for in what better way does a government provide for the common weal of its people than by protecting them against crime, while at the same time respecting their individual rights and liberties? This is a delicate balance, one that is reflected in this survey of the most recent developments in Virginia criminal law and procedure. The legislative enactments and judicial …

The Victim's Rights Amendment: A Prosecutor's, And Surprisingly, A Defense Attorney's Support In Sentencing, Steven I. Platt, Jeannie Pittillo Kauffman

Maryland Law Review

No abstract provided.

International Perspective, Douglass Cassel

Journal Articles

I don't think it's accurate to say this panel has six experts on incarceration. I think we really have five experts and one dilettante. I know a bit about international human rights law. I am not an expert on prisons and I am overwhelmed by the expertise and the statistics that we've just received and about which I hope to learn a great deal more. So I apologize to you in advance for supplying nothing more than impressions of the international realities of incarceration. I will then skip quickly ahead to the law.

Lilly V. Virginia Glimmers Of Hope For The Confrontation Clause?, Richard D. Friedman

Articles

In 1662, in The Case of Thomas Tong and Others, which involved charges of treason against several defendants, the judges of the King's Bench conferred on a crucial set of points of procedure. As reported by one of the judges, Sir John Kelyng, the judges agreed unanimously that a pretrial confession made to the authorities was evidence against the Party himself who made the Confession, and indeed, if adequately proved could support a conviction of that party without additional witnesses to the treason itself. But -- again unanimously, and quite definitively -- the judges also agreed that the confession cannot …

Congress' Arrogance, Yale Kamisar

Articles

Does Dickerson v. U.S., reaffirming Miranda and striking down §3501 (the federal statute purporting to "overrule" Miranda), demonstrate judicial arrogance? Or does the legislative history of §3501 demonstrate the arrogance of Congress? Shortly after Dickerson v. U.S. reaffirmed Miranda and invalidated §3501, a number of Supreme Court watchers criticized the Court for its "judicial arrogance" in peremptorily rejecting Congress' test for the admissibility of confessions. The test, pointed out the critics, had been adopted by extensive hearings and debate about Miranda's adverse impact on law enforcement. The Dickerson Court did not discuss the legislative history of §3501 at all. However, …

The Suggestibility Of Children: Scientific Research And Legal Implications, Stephen J. Ceci, Richard D. Friedman

Articles

In this Article, Professors Ceci and Friedman analyze psychological studies on children's suggestibility and find a broad consensus that young children are suggestible to a significant degree. Studies confirm that interviewers commonly use suggestive interviewing techniques that exacerbate this suggestibility, creating a significant risk in some forensic contexts-notably but not exclusively those of suspected child abuse-that children will make false assertions of fact. Professors Ceci and Friedman address the implications of this difficulty for the legal system and respond to Professor Lyon's criticism of this view recently articulated in the Cornell Law Review. Using Bayesian probability theory, Professors Ceci and …

Is America A Systematic Violator Of Human Rights In The Administration Of Criminal Justice?, Stephen C. Thaman

All Faculty Scholarship

This article focuses on vast American violations of human rights in the administration of criminal justice. It traces the development of these rights in the context of the two most pernicious human rights violations plaguing the United States: the death penalty and racism in the enforcement of criminal laws. The author calls attention to the politicization of the American justice system and its devastatingly negative impact on America’s preservation of human rights.

Ensuring Able Representation For Publicly-Funded Criminal Defendants: Lessons From England, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

While there are skilled private defense lawyers who enthusiastically represent indigent criminal defendants, too often defense lawyers whose income depends upon appointments provide deplorable representation. The problem is well known and pervasive. In addition to the blizzard of claims on appeal of ineffective representation, defenders' efforts have been savaged by judges and by fellow lawyers. These nagging problems persist: to induce private lawyers to represent their clients effectively by eliciting the defendant's story and managing their relationship in a way that at least does not displease the defendant; investigating his and the prosecution's positions; pressing the prosecution for discovery, for …

Dignity And Victimhood, Kent Greenawalt

Faculty Scholarship

If Sandy Kadish has reminded us of limitations of consequentialist approaches to the criminal law and has proposed persuasive resolutions of issues that deontological perspectives reveal, Meir Dan-Cohen has jarred us to rethink fundamental premises about rules in the criminal justice system. His Essay is an example of his ingenuity for unsettling understandings. The Essay reads easily and seems deceptively straightforward, but it is rich in nuance and its themes are complex. This Response identifies the various themes and evaluates their plausibility. I take Professor Dan-Cohen's Essay as a preliminary exploration of a major subject, and I have responded accordingly, …

Death Matters – A Reply To Latzer And Cauthen, James S. Liebman, Jeffrey A. Fagan, Valerie West

Faculty Scholarship

The legal treatment of capital punishment in the United States "rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. This predicate is among "the evolving standards of decency that mark the progress of a maturing society" and determine whether a punishment is "cruel and unusual" in violation of the Constitution. Because "'[f]rom the point of view of the defendant, [death] is different in both its severity …

Transparent Adjudication And Social Science Research In Constitutional Criminal Procedure, Tracey L. Meares, Bernard Harcourt

Faculty Scholarship

The October 1999 Term was a year of consolidation in the law of police investigations in constitutional criminal procedure. In four short and compact opinions – three supported by sizeable majorities and three written by the Chief Justice – the Supreme Court synthesized and consolidated its criminal procedure jurisprudence, and offered clear guidance to law enforcement officers and private citizens alike. Miranda warnings are required by the Fifth Amendment, and the police must continue to "Mirandize" citizens before conducting any custodial interrogations. Reasonable suspicion under the Fourth Amendment calls for a totality-of-the-circumstances test, and a citizen's flight from the police …

A Broken System: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffrey Fagan, Valerie West

Faculty Scholarship

There is a growing bipartisan consensus that flaws in America's death-penalty system have reached crisis proportions. Many fear that capital trials put people on death row who don't belong there. Others say capital appeals take too long. This report – the first statistical study ever undertaken of modern American capital appeals (4,578 of them in state capital cases between 1973 and 1995) – suggests that both claims are correct.

Capital sentences do spend a long time under judicial review. As this study documents, however, judicial review takes so long precisely because American capital sentences are so persistently and systematically fraught …

Thinking The Unthinkable Recasting The Presumption Of Edwards V. Arizona, Eugene L. Shapiro

Oklahoma Law Review

No abstract provided.

Prejudice To The NTh Degree: The Introduction Of Uncharged Misconduct Admissible Only Against A Co-Defendant At A Megatrial, Edward J. Imwinkelried

Oklahoma Law Review

No abstract provided.

Death Is The Whole Ball Game, Jeffrey A. Fagan, James S. Liebman, Valerie West

Faculty Scholarship

In Capital Appeals Revisited and The Meaning of Capital Appeals, Barry Latzer and James N.G. Cauthen argue that a study of capital appeals should focus only on overturned findings of guilt, and complain that in A Broken System we examine all overturned capital verdicts. But the question they want studied cannot provide an accurate evaluation of a system of capital punishment. By proposing to count only "conviction" error and not "sentence" error, Latzer and Cauthen ignore that if a death sentence is overturned, the case is no longer capital and the system of capital punishment has failed to achieve its …

Drug Treatment Courts And Emergent Experimentalist Government, Michael C. Dorf, Charles F. Sabel

Faculty Scholarship

Despite the continuing "war on drugs," the last decade has witnessed the creation and nationwide spread of a remarkable set of institutions, drug treatment courts. In drug treatment court, a criminal defendant pleads guilty or otherwise accepts responsibility for a charged offense and accepts placement in a court-mandated program of drug treatment. The judge and court personnel closely monitor the defendant's performance in the program and the program's capacity to serve the mandated client. The federal government and national associations in turn monitor the local drug treatment courts and disseminate successful practices. The ensemble of institutions, monitoring, and pooling exemplifies …

Shifting Power For Battered Women: Law, Material Resources, And Poor Women Of Color, Donna Coker

Articles

No abstract provided.

Vehicle Searches – The Automobile Exception: The Constitutional Ride From Carroll V. United States To Wyoming V. Houghton, Martin L. O'Connor

Touro Law Review

No abstract provided.

Acting Without "Just Cause": An Analysis Of The Ninth Circuit's Decision In United States V. Symington, James R. Coltharp Jr.

Kentucky Law Journal

No abstract provided.

Capital Attrition: Error Rates In Capital Cases, 1973-1995, James S. Liebman, Jeffery Fagan, Valerie West, Jonathan Lloyd

Faculty Scholarship

Americans seem to be of two minds about the death penalty. In the last several years, the overall number of executions has risen steeply, reaching a fifty year high this year. Although two-thirds of the public support the penalty, this figure represents a sharp decline from the four-fifths of the population that endorsed the death penalty only six years ago, leaving support for capital punishment at a twenty year low. When life without parole is offered as an alternative, support for the penalty drops even more – often below a majority. Grants of executive clemency reached a twenty year high …

The Overproduction Of Death, James S. Liebman

Faculty Scholarship

In this Article, Professor Liebman concludes that trial actors have strong incentives to – and do – overproduce death sentences, condemning to death men and women who, under state substantive law, do not deserve that penalty. Because trial-level procedural rights do not weaken these incentives or constrain the overproduction that results, it falls to post-trial procedural review – which is ill-suited to the task and fails to feed back needed information to the trial level – to identify the many substantive mistakes made at capital trials. This system is difficult to reform because it benefits both pro-death penalty trial actors …

A Case Study Of Process Servers In Clark County, Nevada In The District Attorney Criminal Division, Amy M. Meedel

UNLV Theses, Dissertations, Professional Papers, and Capstones

In 1996 the job classification of Process Server was created in the Clark County District Attorney Criminal Division in Las Vegas, Nevada. It was implemented by DA Stewart L. Bell as a cost-saving measure meant as a reclassification of the position of Investigator. Since the initial job posting, the duties appropriate to the position of Process Server have been and remain in question. No written, measurable job performance standards have been established and no consistent training or supervision provided. A review of the literature suggests wide variance in what may be considered appropriate job duties for this classification, though the …

Power, Policy, And The Hyde Amendment: Ensuring Sound Judicial Interpretation Of The Criminal Attorney's Fees Law, Lawrence Judson Welle

William & Mary Law Review

No abstract provided.

How The Grinch Stole Chanukah, Isaac M. Jaroslawicz

Cardozo Law Review

No abstract provided.

The Independent Counsel Statute: A Premature Demise, Julian A. Cook Iii

BYU Law Review

No abstract provided.

Neonaticide And The Misuse Of The Insanity Defense, Megan C. Hogan

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Priceless Process: Nonnegotiable Features Of Criminal Litigation, Nancy J. King

Vanderbilt Law School Faculty Publications

In this Article, Professor Nancy King develops an approach for determining when judges should block the efforts of criminal litigants to bypass constitutional and statutory requirements other than those already traded freely in traditional plea bargains. Devices for classifying nonnegotiable requirements, including the concept of "jurisdictional error," have lost their utility. Clearer rules about which deals are enforceable and which are not would increase certainty in bargaining and reduce disparate treatment of similarly situated defendants. King argues that the interests of third parties or the public may justify restrictions on bargains in criminal procedure, and she traces the stubborn persistence …

Practical Magic: A Few Down-To-Earth Suggestions For The New Sentencing Commission, Frank O. Bowman Iii

Faculty Publications

Most of the contributions to this outpouring of advice to the new Sentencing Commissioners have to do with the substance of the Guidelines. What follows here is far more prosaic - some suggestions not about what the Commission should do, but about how the Commission should work. I make these suggestions with some trepidation, recognizing the difficulty of the task the new members have undertaken. However, I hope the perspective of one who practiced before and after the Guidelines as a federal prosecutor, participated in the internal workings of the Commission as Special Counsel in 1995-96, and has been a …

Defending Substantial Assistance: An Old Prosecutor's Meditation On Singleton, Sealed Case, And The Maxfield-Kramer Report, Frank O. Bowman Iii

Faculty Publications

This essay begins with a brief analysis of the panel and en banc opinions in Sealed Case and Singleton, and then turns to the more arresting question of whether the panel decisions were transitory aberrations or something more. Particularly if one considers Singleton and Sealed Case together with the Sentencing Commission's staff report on substantial assistance practice (the “Maxfield - Kramer Report”), it is difficult to escape the conclusion that unease with the current substantial assistance regime is growing. Unlike many observers, I view §5K1.1 as a very good thing, an invaluable prosecutorial tool against group criminality, but a tool …

Departing Is Such Sweet Sorrow: A Year Of Judicial Revolt On "Substantial Assistance" Departures Follows A Decade Of Prosecutorial Indiscipline (Prosecution Law Symposium), Frank O. Bowman Iii

Faculty Publications

the first section of this essay is devoted to demonstrating the courts' errors. Nonetheless, considered together, these opinions are perhaps an understandable reflection of judicial unease with an important component of the federal sentencing system — the longstanding, but increasingly common, practice of making deals with criminal defendants to reduce their sentences in return for testimony against their accomplices. This Article's second section will consider the most common criticisms of the system of bargaining for testimony under the United States Sentencing Guidelines (the Guidelines) to determine whether Singleton and Sealed Case may be good policy even if they are bad …