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Articles 1 - 30 of 94
Full-Text Articles in Law
Criminal Justice Secrets, Meghan J. Ryan
Criminal Justice Secrets, Meghan J. Ryan
Faculty Journal Articles and Book Chapters
The American criminal justice system is cloaked in secrecy. The government employs covert surveillance operations. Grand-jury proceedings are hidden from public view. Prosecutors engage in closed-door plea-bargaining and bury exculpatory evidence. Juries convict defendants on secret evidence. Jury deliberations are a black box. And jails and prisons implement clandestine punishment practices. Although there are some justifications for this secrecy, the ubiquitous nature of it is contrary to this nation’s Founders’ steadfast belief in the transparency of criminal justice proceedings. Further, the pervasiveness of secrecy within today’s criminal justice system raises serious constitutional concerns. The accumulation of secrecy and the aggregation …
Asymmetrical Governance: Auditing Algorithms To Preserve Due Process Rights, Paul J. Baillargeon
Asymmetrical Governance: Auditing Algorithms To Preserve Due Process Rights, Paul J. Baillargeon
Major Papers
We are now living in age where algorithms, and the data that feed them, govern a wide variety of decisions in our lives: not just search engines and personalized Netflix suggestions, but educational evaluations, stock market trades and political campaigns, the urban planning, and even how social services like welfare and public safety are managed. Heterogeneous lists like this have become the norm in any critical examination of algorithms, giving the impression of a ubiquitous relevance of algorithms. But algorithms can make mistakes that directly affect individuals and often contain both implicit and explicit biases. The technical complexity of algorithms, …
The “Critical Stage” Of Plea-Bargaining And Disclosure Of Exculpatory Evidence, Gabriella Castellano
The “Critical Stage” Of Plea-Bargaining And Disclosure Of Exculpatory Evidence, Gabriella Castellano
NYLS Law Review
No abstract provided.
Am I Angry? You Bet I Am! Watching The George Floyd Murder Trial, Cheryl Page
Am I Angry? You Bet I Am! Watching The George Floyd Murder Trial, Cheryl Page
Journal Publications
We have come a mighty long way in our criminal justice system. We have gone from a period of time when people of African descent were not considered humans and were deliberately excluded from serving on jury panels to seeing Black judges, defense attorneys and prosecuting attorneys taking part in selecting more diverse juries. Progress has been made, but how far have we really journeyed, and are the vestiges of racial animus and discrimination from the Jim Crow era truly eradicated? One need not look further than the current criminal trial we are witnessing of former Minneapolis police officer Derek …
Flipping The Script On Brady, Ion Meyn
Flipping The Script On Brady, Ion Meyn
Indiana Law Journal
Brady v. Maryland imposes a disclosure obligation on the prosecutor and, for this
reason, is understood to burden the prosecutor. This Article asks whether Brady also
benefits the prosecutor, and if so, how and to what extent does it accomplish this?
This Article first considers Brady’s structural impact—how the case influenced
broader dynamics of litigation. Before Brady, legislative reform transformed civil
and criminal litigation by providing pretrial information to civil defendants but not
to criminal defendants. Did this disparate treatment comport with due process?
Brady arguably answered this question by brokering a compromise: in exchange for
imposing minor obligations on …
Reasonable Doubt And Relativity, Michael D. Cicchini
Reasonable Doubt And Relativity, Michael D. Cicchini
Washington and Lee Law Review
In theory, the Constitution protects us against criminal conviction unless the state can prove guilt beyond a reasonable doubt. In reality, this lofty standard is only as strong as the words used to explain it to the jury.
Unfortunately, attempts to explain reasonable doubt often create confusion, and sometimes even diminish the burden of proof. Many courts therefore believe that the better practice is not to attempt a definition. However, empirical studies demonstrate that reasonable doubt is not self-defining, i.e., when it is not explained to the jury, it offers defendants no greater protection against conviction than the two lower, …
Between Brady Discretion And Brady Misconduct, Bennett L. Gershman
Between Brady Discretion And Brady Misconduct, Bennett L. Gershman
Dickinson Law Review (2017-Present)
The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because …
Addressing Racial Bias In The Jury System: Another Failed Attempt?, Alisa Micu
Addressing Racial Bias In The Jury System: Another Failed Attempt?, Alisa Micu
Georgia State University Law Review
This Note explores the majority opinion and the dissents in Pena- Rodriguez regarding whether the Supreme Court has adequately provided guidance for lower courts to follow the ruling, which now allows exceptions for evidence of racial bias to Rule 606(b). Part I discusses the history of the no-impeachment rule, its foundation in the Sixth Amendment, and its constitutional requirements. Further, Part I discusses the different approaches that courts have taken in adopting Rule 606(b) and what problems courts have identified in its application. Part II analyzes whether the Supreme Court, as a practical matter, has provided a workable procedural scheme …
Judges Do It Better: Why Judges Can (And Should) Decide Life Or Death, Andrew R. Ford
Judges Do It Better: Why Judges Can (And Should) Decide Life Or Death, Andrew R. Ford
Dickinson Law Review (2017-Present)
Following its decision in Furman v. Georgia, the Supreme Court of the United States has attempted to standardize procedures that states use to subject offenders to the ultimate penalty. In practice, this attempt at standardization has divided capital sentencing into two distinct parts: the death eligibility decision and the death selection decision. The eligibility decision addresses whether the sentencer may impose the death penalty, while the selection decision determines who among that limited subset of eligible offenders is sentenced to death. In Ring v. Arizona, the Court held for the first time that the Sixth Amendment right to …
When Big Brother Becomes “Big Father”: Examining The Continued Use Of Parens Patriae In State Juvenile Delinquency Proceedings, Emily R. Mowry
When Big Brother Becomes “Big Father”: Examining The Continued Use Of Parens Patriae In State Juvenile Delinquency Proceedings, Emily R. Mowry
Dickinson Law Review (2017-Present)
The U.S. Constitution grants American citizens numerous Due Process rights; but, historically, the Supreme Court declined to extend these Due Process rights to children. Initially, common-law courts treated child offenders over the age of seven in the same manner as adult criminals. At the start of the 20th century, though, juvenile reformers assisted in creating unique juvenile courts that used the parens patriae doctrine and viewed children as delinquent youths in need of judicial parental guidance rather than punishment. Later, starting in 1967, the Supreme Court released multiple opinions extending certain constitutional Due Process rights to children in juvenile delinquency …
Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook
Federal Guilty Pleas: Inequities, Indigence And The Rule 11 Process, Julian A. Cook
Scholarly Works
In 2017 and 2018, the Supreme Court issued two little-noticed decisions—Lee v. United States and Class v. United States. While neither case captured the attention of the national media nor generated meaningful academic commentary, both cases are well deserving of critical examination for reasons independent of the issues presented to the Court. They deserve review because of a consequential shared fact; a fact representative of a commonplace, yet largely overlooked, federal court practice that routinely disadvantages the indigent (and disproportionately minority populations), and compromises the integrity of arguably the most consequential component of the federal criminal justice process. In each …
Regulating Interrogations And Excluding Confessions In The United States: Balancing Individual Rights And The Search For Truth, Jenia I. Turner
Regulating Interrogations And Excluding Confessions In The United States: Balancing Individual Rights And The Search For Truth, Jenia I. Turner
Faculty Journal Articles and Book Chapters
Like other criminal justice systems, the U.S. system must balance, on the one hand, enforcing the criminal law and, on the other, protecting individual rights in the process. Reliable fact-finding is a prerequisite to the effective enforcement of criminal law and to just outcomes. Protection of individual rights often promotes reliable fact-finding, as when a ban on involuntary confessions prevents the introduction of unreliable testimony at trial. On occasion, however, the commitment to accurate fact-finding may conflict with individual rights in a particular case. One of the clearest examples of such a conflict occurs when a court must decide whether …
Neil Gorsuch And The Return Of Rule-Of-Law Due Process, Nathan Chapman
Neil Gorsuch And The Return Of Rule-Of-Law Due Process, Nathan Chapman
Popular Media
Something curious happened at the Supreme Court last week. While the country was glued to the Cirque du Trump, the rule of law made a comeback, revived by Neil Gorsuch, whose place on the Court may prove to be one of Trump’s most important legacies.
Unlike the partisan gerrymander and First Amendment cases currently pending before the Court, immigration cases are usually long on textual analysis and short on grand themes. Accordingly, court-watchers didn’t have especially high expectations for Sessions v. Dimaya.
Extraterritorial Human Trafficking Prosecutions: Eliminating Zones Of Impunity Within The Limits Of International Law And Due Process, Caroline A. Fish
Extraterritorial Human Trafficking Prosecutions: Eliminating Zones Of Impunity Within The Limits Of International Law And Due Process, Caroline A. Fish
St. John's Law Review
(Excerpt)
This Note argues that the Baston court was incorrect both in finding the Amendment consistent with the protective principle and in its analysis of the defendant’s nexus with the United States. This Note asserts, instead, that (1) the Amendment is not valid under any traditional bases of prescriptive jurisdiction but is consistent with the United States’ international obligations to “extradite or prosecute,” and (2) the Amendment may be applied under the international anti-trafficking conventions to foreign defendants present in the United States, regardless of nexus, without violating due process.
Part I of this Note describes the complex nature of …
Anselmo V. Bisbee, 133 Nev. Adv. Op. 45 (Jun. 29, 2017), Marco Luna
Anselmo V. Bisbee, 133 Nev. Adv. Op. 45 (Jun. 29, 2017), Marco Luna
Nevada Supreme Court Summaries
The Nevada Parole Board can deny parole for any reason authorized by regulation or statute. However, inmates do have a statutory right to have a parole hearing under NRS 213.140(1). Therefore, in limited cases where the Nevada Parole Board clearly misapplied its own internal guidelines in assessing whether to grant parole to an inmate, a new parole hearing is warranted.
Prisoner's Rights And The Correctional Scheme: The Legal Controversy And Problems Of Implementation - A Symposium - Introduction, Donald W. Dowd
Prisoner's Rights And The Correctional Scheme: The Legal Controversy And Problems Of Implementation - A Symposium - Introduction, Donald W. Dowd
Donald W. Dowd
No abstract provided.
Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky
Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
Motion For Leave To File Amicus Curiae Brief And Brief For The National Association For Public Defense And Kentucky Association Of Criminal Defense Lawyers As Amici Curiae In Support Of Petitioner, Sneed V. Burress (U.S. March 24, 2017) (No. 16-8047)., Janet Moore
Faculty Articles and Other Publications
No abstract provided.
The Downstream Consequences Of Misdemeanor Pretrial Detention, Paul Heaton, Sandra G. Mayson, Megan Stevenson
The Downstream Consequences Of Misdemeanor Pretrial Detention, Paul Heaton, Sandra G. Mayson, Megan Stevenson
Scholarly Works
In misdemeanor cases, pretrial detention poses a particular problem because it may induce innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas—the thirdlargest county in the United States—to measure the effects of pretrial detention on case outcomes and future crime. We find that detained defendants are 25% more likely than similarly …
Policing Criminal Justice Data, Wayne A. Logan, Andrew Guthrie Ferguson
Policing Criminal Justice Data, Wayne A. Logan, Andrew Guthrie Ferguson
Scholarly Publications
No abstract provided.
Shakin' And Bakin': The Supreme Court's Remarkable Criminal Law Rulings Of The 1999 Term, William E. Hellerstein
Shakin' And Bakin': The Supreme Court's Remarkable Criminal Law Rulings Of The 1999 Term, William E. Hellerstein
Touro Law Review
No abstract provided.
Congressional Due Process, Andrew M. Wright
Congressional Due Process, Andrew M. Wright
Andrew M Wright
This article identifies significant deficiencies in Congress’s investigative practices. Consequences of congressional scrutiny can be profound, yet the second Congress calls, almost none of the safeguards of the American legal system are present. I argue such practices demonstrate institutional indifference to constitutional due process norms. The article highlights differences between congressional and judicial proceedings with respect to the safeguards of witnesses and targets. The purpose of congressional inquiry fundamentally differs from adjudication, and therefore does not call for the full complement of procedural rights afforded in judicial proceedings. Congress seeks facts and expertise to inform legislative judgments that will have …
The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan
Trevor J Calligan
No abstract provided.
The Preliminary Hearing: A Necessary Part Of Due Process, Andrea Lyon
The Preliminary Hearing: A Necessary Part Of Due Process, Andrea Lyon
Andrea D. Lyon
No abstract provided.
Wrongful Confictions And Due Process Violations, Cheryl Page
Wrongful Confictions And Due Process Violations, Cheryl Page
Journal Publications
This analytical essay looks at the myriad of ways innocent people are wrongfully convicted and how the criminal justice system fails to truly reach a fair and equitable result. The article looks at how at the initial stages of a criminal proceeding, a defendant can be prejudiced to the point of sufficient harm to his chances at being given a fair and impartial judicial proceeding. This article examines how fatal mistakes can be made and reveals that there can be flaws in the science of DNA testing, including fraud, criminologist bias, improper laboratory procedures, and human error. This article seeks …
Due Process And The Failure Of The Criminal Court, Steven Zeidman
Due Process And The Failure Of The Criminal Court, Steven Zeidman
Publications and Research
No abstract provided.
Criminal Court, New York County, People V. Dejesus, Justin Goldberg
Criminal Court, New York County, People V. Dejesus, Justin Goldberg
Touro Law Review
No abstract provided.
Supreme Court, Bronx County, People V. Buari, Matthew Moisan
Supreme Court, Bronx County, People V. Buari, Matthew Moisan
Touro Law Review
No abstract provided.
Ignorance Of The Law: A Maxim Reexamined, Ronald A. Cass
Ignorance Of The Law: A Maxim Reexamined, Ronald A. Cass
Ronald A. Cass
No abstract provided.
Using Outcomes To Reframe Guilty Plea Adjudication, Anne R. Traum
Using Outcomes To Reframe Guilty Plea Adjudication, Anne R. Traum
Scholarly Works
The Supreme Court’s 2012 decisions in Lafler v. Cooper and Missouri v. Frye lay the groundwork for a new approach to judicial oversight of guilty pleas that considers outcomes. These cases confirm that courts possess robust authority to protect defendants’ Sixth Amendment right to the effective assistance of counsel and that plea outcomes are particularly relevant to identifying and remedying prejudicial ineffective assistance in plea-bargaining. The Court’s reliance on outcome-based prejudice analysis and suggestions for trial court-level reforms to prevent Sixth Amendment violations set the stage for trial courts to take a more active, substantive role in regulating guilty pleas. …