Digital Commons Network^™

Prosecutors And Domestic Violence: Local Leadership Makes A Difference, Janet E. Findlater, Dawn Van Hoek

Law Faculty Research Publications

No abstract provided.

Prosecution Discovery In The U.S.: A Balancing Perspective, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In R. v. Stinchcombe, the Supreme Court of Canada held that the Crown has a legal duty to disclose all relevant information, exculpatory and inculpatory, to a defendant charged with an indictable offence. Left undiscussed by the decision, and by Canadian decisional and statutory law generally, is the scope of discovery against the defence. A description and analysis of the American experience in this regard may be of interest to Canadian practitioners and academics.

Prior to the middle of this century, defence attorneys and prosecutors in the United States depended on preliminary hearings and informal exchanges to obtain information about …

Factors For Reasonable Suspicion: When Black And Poor Means Stopped And Frisked, David A. Harris

Indiana Law Journal

No abstract provided.

Words And Sentences: Penalty Enhancement For Hate Crimes, Shirley S. Abrahamson, Susan Craighead, Daniel N. Abrahamson

University of Arkansas at Little Rock Law Review

No abstract provided.

Impeachment By Conviction Evidence: Judicial Discretion And The Politics Of Rule 609, Victor Gold

Cardozo Law Review

No provision of the Federal Rules of Evidence has sparked more controversy than Rule 609, which deals with the admissibility of convictions to impeach a witness. When first proposed, the provision was the subject of fierce debate, sparking repeated revision during its drafting and while it was under consideration by Congress. Ultimately, no one side in this legislative battle prevailed entirely; the Rule strikes a compromise between sharply conflicting policies. The text of Rule 609, incorporating no less than three balancing tests, two references to fairness, one to justice, and several other undefined terms, leaves the task of resolving the …

New York's Loyalty To The Spirit Of "Miranda": Simply The Best For Twenty-Five Years, Lorraine J. Adler

Vanderbilt Law Review

The landmark Supreme Court decision Miranda v. Arizona, recognized a defendant's right to be informed of the rights guaranteed by the Fifth Amendment's self-incrimination clause, including the right to counsel. The Miranda Court realized that a suspect may feel compelled to waive his Fifth Amendment privilege while in official detention. The Court held that the police must read the now-familiar warnings to a subject in custodial interrogation before he can waive his rights. Therefore, the Court in Miranda chose to strike the balance between effective law enforcement and protecting a subject's constitutional rights at the point of informing the subject …

Daubert: Interpreting The Federal Rules Of Evidence, Paul C. Giannelli

Cardozo Law Review

In 1992 Judge Becker and Professor Orenstein referred to the Frye issue - the admissibility of novel scientific evidence-as the "most controversial and important unresolved question" in the Federal Rules of Evidence. Indeed, during the prior decade the federal courts had battled over the issue, as had their state counterparts. Similarly, text writers and law review commentators vigorously disagreed about the proper standard for admitting scientific evidence. While one ABA report on the Federal Rules explored the Frye issue and concluded that it "is not clear that any standard would produce agreement at the moment," another report cited it as …

Confessions And The Mentally Retarded Capital Defendant: Cheating To Lose, Silvia Linda Simpson

Capital Defense Journal

No abstract provided.

Guilty Pleas, Meredith Kolsky Lewis

Journal Articles

No abstract provided.

Categorical And Individualized Rights- Ordering On Federal Habeas Corpus, Daniel B. Yeager

Washington and Lee Law Review

No abstract provided.

Taking The Fifth: Reconsidering The Origins Of The Constitutional Privilege Against Self-Incrimination, Eben Moglen

Michigan Law Review

The purpose of this essay is to cast doubt on two basic elements of the received historical wisdom concerning the privilege as it applies to British North America and the early United States. First, early American criminal procedure reflected less tenderness toward the silence of the criminal accused than the received wisdom has claimed. The system could more reasonably be said to have depended on self-incrimination than to have eschewed it, and this dependence increased rather than decreased during the provincial period for reasons intimately connected with the economic and social context of the criminal trial in colonial America.

Second, …

Herrera V. Collins: The Gateway Of Innocence For Death-Sentenced Prisoners Leads Nowhere, Vivian Berger

William & Mary Law Review

No abstract provided.

When Terry Met Miranda: Two Constitutional Doctrines Collide, Mark A. Godsey

Faculty Articles and Other Publications

No abstract provided.

Spelling Guilt Out Of A Record? Harmless Error Review Of Conclusive Mandatory Presumptions And Elemental Misdescriptions, John M. Greabe

Law Faculty Scholarship

Part I of this Article summarizes the history of harmless-error review. Part II explains more fully the constitutional infirmities generated by conclusive mandatory presumptions and elemental misdescriptions, and demonstrates that the unique nature of these infirmities complicates the question of how courts should review them for harmlessness. It also examines the Supreme Court's attempts to answer the questions of whether, and how, conclusive mandatory presumptions and elemental misdescriptions should be reviewed for harmlessness. In so doing, it focuses particularly on how these attempts have been undermined by the Court's failure to take account of the structural rights undermined by these …

Preserving A Community Voice: The Case For Half-And-Half Juries In Racially-Charged Criminal Cases, 28 J. Marshall L. Rev. 1 (1994), Daniel W. Van Ness

UIC Law Review

No abstract provided.

Categorical And Individualized Rights-Ordering On Federal Habeas Corpus, Daniel B. Yeager

Faculty Scholarship

This Article criticizes the Supreme Court's treatment of both individualized and categorical bases of relief on federal habeas corpus. Part I notes the Court's trend toward trimming the process that is due in criminal and prisoner litigation generally. This trend may explain the drop in process on habeas as well, but generally declining process cannot explain which rights, if any, should survive the decline. That would require our weighting, if not reconciling, accuracy and dignitary norms, which is the subject of Part II. In Part II, I examine Withrow v Williams, a case from the Court's 1992 Term, which, for …

Police Interrogation: The Privilege Against Self-Incrimination, The Right To Counsel, And The Incomplete Metamorphosis Of Justice White, 48 U. Miami L. Rev. 511 (1994), Ralph Ruebner

UIC Law Open Access Faculty Scholarship

No abstract provided.

Process And Prediction: A Return To A Fuzzy Model Of Pre-Trial Detention, Jack F. Williams

Faculty Publications By Year

No abstract provided.

Character Impeachment Evidence: The Asymmetrical Interaction Between Personality And Situation, Richard D. Friedman

Articles

In Part I of this Comment, I present a short version of my argument against the admissibility of character impeachment evidence of criminal defendants, showing how the key elements ofthis argument are present in Professor Uviller's own Article. In Part II, I suggest that, notwithstanding Professor Uviller's comments to the contrary, an asymmetrical result-never admitting character evidence to impeach criminal defendants but admitting such evidence in some circumstances to impeach other witnesses- is perfectly reasonable. Finally, in Part III, I contend that Professor Uviller's interesting judicial surveys support the solution I have proposed for the problem of character impeachment evidence.

Kentucky Post-Conviction Remedies And The Judicial Development Of Kentucky Rule Of Criminal Procedure 11.42, John S. Gillig

Kentucky Law Journal

No abstract provided.

The Gate Is Open But The Door Is Locked Habeas Corpus And Harmless Error, Bennett L. Gershman

Washington and Lee Law Review

No abstract provided.

When Actual Innocence Is Irrelevant: Federal Habeas Relief For State Prisoners After Herrera V. Collins, Jill Hanson Reinmuth

Washington Law Review

In Herrera v. Collins, the United States Supreme Court held that federal habeas courts lack jurisdiction over claims of actual innocence based on newly discovered evidence because federal habeas courts ensure only that state prisoners are not held in violation of the United States Constitution. This Note argues that state prisoners are held in violation of the Constitution when state procedural rules constructively bar presentations of newly discovered evidence of innocence. This Note proposes that federal habeas courts should grant 1) an evidentiary hearing when a petitioner makes a substantial allegation of newly discovered evidence of innocence, and 2) relief …

How Reasonable Is The Reasonable Man?: Police And Excessive Force, Geoffrey P. Alpert, William C. Smith

Faculty Publications

The authority of the police to use force represents one of the most misunderstood powers granted to representatives of government. Police officers are authorized to use both psychological and physical force to apprehend criminals and solve crimes. This Article focuses on issues of physical force. After a brief introduction and a review of current legal issues in the use of force, the Article discusses "reasonableness" and the unrealistic expectation which is placed on police to understand, interpret, and follow vague "reasonableness" guidelines. Until the expectations and limitations on the use of force are clarified, in behavioral terms, police officers will …

Reforms In Legislation Governing Judicial Organization In The Soviet Union And In Present-Day Russia: The New Law “On The Status Of Judges In The Russian Federation”, Jason Jeremy Kilborn

Presidential Scholars Theses (1990 – 2006)

Much scholarly work has been done in the area of Soviet-era law and legal procedure, and this paper attempts to make a continuing contribution to that effort in the new era of the Russian Federation. Drawing upon first-hand experience in the Kuibyshevskii court, this paper will attempt to shed some light on the recent reorganization of the judiciary in Russia by revealing and analyzing very recent changes in the new law concerning the status of judges in Russia. Along the way some speculations on the initial and continuing impact of these reforms on Russian criminal justice will be offered as …

Brutality In Blue: Community, Authority, And The Elusive Promise Of Police Reform, Debra A. Livingston

Faculty Scholarship

In January 1994, President Clinton invited Kevin Jett, a thirtyone-year-old New York City police officer who walks a beat in the northwest Bronx, to attend the State of the Union Address. Jett stood for Congress's applause as the President called for the addition of 100,000 new community police officers to walk beats across the nation. The crime problem faced by Officer Jett and community police officers like him, the President said, has its roots "in the loss of values, the disappearance of work, and the breakdown of our families and communities." According to the Clinton administration, however, the police – …

On The Moral Irrelevance Of Bodily Movements, George P. Fletcher

Faculty Scholarship

In the mess of confusions called Anglo-American criminal law, writers commonly refer to the "problem of punishing omissions." There is something untoward, they say, about imposing criminal liability on the bystander who could intervene to save a drowning child and fails to do so. Punishing acts in violation of the law is all right, but there is some special difficulty, never completely understood and clarified, about imposing liability for omissions.

The confusion about omissions has suffered unnecessary compounding by the organization of one of the leading casebooks on criminal law. Apparently not quite sure where to locate their cases on …

Of Laws And Men: An Essay On Justice Marshall's View Of Criminal Procedure, Bruce A. Green, Daniel C. Richman

Faculty Scholarship

No abstract provided.

Ineffective Assistance Of Counsel: People V. Claudio

Touro Law Review

No abstract provided.

Of Laws And Men: An Essay On Justice Marshall's View Of Criminal Procedure, Daniel C. Richman, Bruce A. Green

Faculty Scholarship

As a general rule, criminal defendants whose cases made it to the Supreme Court between 1967 and 1991 must have thought that, as long as Justice Thurgood Marshall occupied one of the nine seats, they had one vote for sure. And Justice Marshall rarely disappointed them – certainly not in cases of any broad constitutional significance. From his votes and opinions, particularly his dissents, many were quick to conclude that the Justice was another of those "bleeding heart liberals," hostile to the mission of law enforcement officers and ready to overlook the gravity of the crimes of which the defendants …

Taking The Fifth: Reconsidering The Origins Of The Constitutional Privilege Against Self-Incrimination, Eben Moglen

Faculty Scholarship

The purpose of this essay is to cast doubt on two basic elements of the received historical wisdom concerning the privilege as it applies to British North America and the early United States. First, early American criminal procedure reflected less tenderness toward the silence of the criminal accused than the received wisdom has claimed. The system could more reasonably be said to have depended on self-incrimination than to have eschewed it, and this dependence increased rather than decreased during the provincial period for reasons intimately connected with the economic and social context of the criminal trial in colonial America.

Second, …