Law Commons^™

Retrying The Acquitted In England Part Iii: Prosecution Appeals Against Judges' Rulings Of "No Case To Answer", David S. Rudstein

San Diego International Law Journal

The Order in Council permitting the prosecution appeal of "Mo" Courtney's acquittal and allowing him to be retried for the same offense of which he had previously been acquitted stems from the Criminal Justice Act 2003. That Act, which applies in England and Wales, grants the government the right to appeal certain rulings by the trial judge in criminal prosecutions on an indictment, including a ruling that there is no case to answer, i.e., a directed verdict of acquittal, and if the appeal is successful, allows the reviewing court to order that the acquitted defendant?s trial be resumed or that …

Overcriminalization: Is There A Problem To Solve?, Roger Fairfax

Presentations

No abstract provided.

Introduction: Appreciating Bill Stuntz, Michael Klarman, David A. Skeel Jr., Carol Steiker

All Faculty Scholarship

The past several decades have seen a renaissance in criminal procedure as a cutting edge discipline, and as one inseparably linked to substantive criminal law. The renaissance can be traced in no small part to the work of a single scholar: William Stuntz. This essay is the introductory chapter to The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz (forthcoming, Cambridge University Press, 2012), which brings together twelve leading American criminal justice scholars whose own writings have been profoundly influenced by Stuntz and his work. After briefly chronicling the arc of Stuntz’s career, the essay provides …

The Crime Victim’S "Right" To A Criminal Prosecution: A Proposed Model Statute For The Governance Of Private Criminal Prosecution, Peter Davis

Peter L. Davis

The thesis of this article is that the public prosecutor should to have a monopoly on criminal prosecutions; some supplementary system of private criminal prosecution should be available. Two such systems, or models, currently exist in New York. The first model, available statewide, theoretically allows a complainant to initiate a non-felony criminal prosecution without any screening by a prosecutor or judge. This system is unwise, unworkable and illusory because it obscures the exercise of judicial discretion and focuses the court’s attention on the wrong issues, usually precluding the crime victim’s complaint. The second model, limited by statute to New York …

Good Guys, Bad Guys -- And Miranda, Tamar R. Birckhead

Tamar R Birckhead

This op-ed argues that we as a society must get beyond our single-minded focus on the Miranda warnings and find a better way to elicit accurate information from suspects while lowering the risk of false confessions.

"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain

All Faculty Scholarship

A three-year-old child, while being bathed by her babysitter, innocently mentions that her “pee-pee” hurts. When the babysitter asks the child how she hurt it, she says, “Uncle Ernie (her mother’s boyfriend) told me not to tell.” A subsequent medical examination reveals that the child has gonorrhea, a sexually transmitted disease.

By the time of trial, the child is four and-a-half-years old. When questioned by the trial judge, she cannot explain to the judge’s satisfaction, “the difference between the truth and a lie.” Moreover, she has no long term memory of the incident. The judge rules the child incompetent to …

State Constitutionalism: State-Court Deference Or Dissonance?, Arthur Leavens

Faculty Scholarship

This Article focuses on the debate concerning state constitutional expansion of criminal-procedure protections. It examines two such rights: (1) the protection against unreasonable searches and seizures; and (2) the right to the assistance of counsel in defending a criminal case. Each of these rights is embodied in both the federal and most, if not all, state constitutions. Each right is thus doubly applicable to the states, first, through the federal version by virtue of its incorporation into the Fourteenth Amendment’s due process protection and, second, through the state constitution’s version of the cognate right. So focused, the question is, what …

Memory And Punishment, O. Carter Snead

Journal Articles

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered - by the offender, by the sentencing authority, …

Plea Bargaining, Discovery, And The Intractable Problem Of Impeachment Disclosures, R. Michael Cassidy

R. Michael Cassidy

In a criminal justice system where guilty pleas are the norm and trials the rare exception, the issue of how much discovery a defendant is entitled to before allocution has immense significance. This article examines the scope of a prosecutor’s obligation to disclose impeachment information before a guilty plea. This question has polarized the criminal bar and bedeviled the academic community since the Supreme Court’s controversial decision in United States v. Ruiz (2002). A critical feature of the debate has been the enduring schism between a prosecutor’s legal and ethical obligations – a gulf that the American Bar Association recently …