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Articles 1 - 30 of 80
Full-Text Articles in Law
Aedpa's Ratchet: Invoking The Miranda Right To Counsel After The Antiterrorism And Effective Death Penalty Act, David Rubenstein
Aedpa's Ratchet: Invoking The Miranda Right To Counsel After The Antiterrorism And Effective Death Penalty Act, David Rubenstein
Washington Law Review
In Davis v. United States, the United States Supreme Court established a high standard to invoke the Miranda right to counsel, holding that a suspect must make a clear and unequivocal request for an attorney. Two years later, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which created a highly deferential standard of review for state court judgments challenged under federal habeas corpus jurisdiction. Generally, a state prisoner challenging the alleged deprivation of his Miranda right to counsel may obtain federal court relief under AEDPA only if his conviction in state court was based on an “objectively …
Understanding New York's "Mode Of Proceedings" Muddle, Gary Muldoon
Understanding New York's "Mode Of Proceedings" Muddle, Gary Muldoon
Buffalo Law Review
No abstract provided.
Alvarado Revisited: A Missing Element In Alaska’S Quest To Provide Impartial Juries For Rural Alaskans, Jeff D. May
Alvarado Revisited: A Missing Element In Alaska’S Quest To Provide Impartial Juries For Rural Alaskans, Jeff D. May
Alaska Law Review
In Alvarado v. State, the Alaska Supreme Court declared that an impartial jury is a cross section of the community and that the community where the events at issue transpired must be represented in the jury. This decision spurred changes to jury selection procedures and the creation of Criminal Rule 18, an effort to ensure defendants from remote villages are judged by a jury representative of these rural areas. The Alaska Court of Appeals recently addressed an issue of first impression regarding the application of Criminal Rule 18. In Joseph v. State, the defendant was convicted of murdering his …
Criminal Law And Procedure, Virginia B. Theisen
Criminal Law And Procedure, Virginia B. Theisen
University of Richmond Law Review
Once more, the past year yielded a wealth of developments in the area of criminal law and procedure. The author has endeavored to cull the most significant decisions and legislative enactments, with an eye toward the "takeaway" from a case rather than a discussion of settled principles.
Retrying The Acquitted In England Part Iii: Prosecution Appeals Against Judges' Rulings Of "No Case To Answer", David S. Rudstein
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 …
Out Of The Strike Zone: Why Graham V. Florida Makes It Unconstitutional To Use Juvenile-Age Convictions As Strikes To Mandate Life Without Parole Under § 841(B)(1)(A), Christopher J. Walsh
Out Of The Strike Zone: Why Graham V. Florida Makes It Unconstitutional To Use Juvenile-Age Convictions As Strikes To Mandate Life Without Parole Under § 841(B)(1)(A), Christopher J. Walsh
American University Law Review
No abstract provided.
Comparing Appels And Oranges: Evaluating The Link Between Appeal Processes And Judiciary Structures In Canada And France, Mike Madden
The Journal of Appellate Practice and Process
No abstract provided.
Fulfilling The Promise Of Payne: Creating Participatory Opportunities For Survivors In Capital Cases, Megan A. Mullett
Fulfilling The Promise Of Payne: Creating Participatory Opportunities For Survivors In Capital Cases, Megan A. Mullett
Indiana Law Journal
No abstract provided.
Plea Bargaining, Discovery, And The Intractable Problem Of Impeachment Disclosures, R. Michael Cassidy
Plea Bargaining, Discovery, And The Intractable Problem Of Impeachment Disclosures, R. Michael Cassidy
Vanderbilt Law Review
Several recent high-profile cases have illustrated flaws with the government's discovery practices in criminal cases and have put prosecutors across the country on the defensive about their compliance with disclosure obligations. The conviction of former Alaska Senator Ted Stevens on ethics charges was set aside after it was revealed that federal prosecutors withheld notes of an interview with a key government witness; one member of the Stevens prosecution team who was under investigation for contempt subsequently committed suicide. The Supreme Court remanded a double murder case from Tennessee for potential resentencing after it was revealed that state prosecutors had withheld …
Shadowing The Flag: Extending The Habeas Writ Beyond Guantanamo, Dawinder S. Sidhu
Shadowing The Flag: Extending The Habeas Writ Beyond Guantanamo, Dawinder S. Sidhu
William & Mary Bill of Rights Journal
The writ of habeas corpus activates courts’ duty to check arbitrary or unlawful restraints by the Executive on individual liberty. In times of war, courts have been compelled to determine whether the writ is available to individuals held by the Executive outside of the territorial boundaries of the United States. In Johnson v. Eisentrager, in which World War II detainees were held in Germany, the Supreme Court answered in the negative, while in Boumediene v. Bush, involving post–9/11 detainees housedat Guantánamo, the Court reached the opposite conclusion. Operating within these two guideposts, the U.S. Court of Appeals for the District …
Where Do We Go From Here: Plea Colloquy Warnings And Immigration Consequences Post-Padilla, Vivian Chang
Where Do We Go From Here: Plea Colloquy Warnings And Immigration Consequences Post-Padilla, Vivian Chang
University of Michigan Journal of Law Reform
This Note argues for the passage of criminal procedure rules that would require judges to warn criminal defendants about immigration consequences at plea colloquy. Part I addresses the overlap of criminal and immigration law, arguing that the increased use of the criminal justice system to police federal immigration laws calls for greater protection of non-citizen defendants at plea colloquy. Part II then addresses the legal duties imposed on both defense counsel and trial courts in relation to plea colloquy. Padilla merely addressed the duty of defense counsel to provide constitutionally effective assistance before plea colloquy and did not reach the …
Collateral Review Of Career Offender Sentences: The Case For Coram Nobis, Douglas J. Bench Jr.
Collateral Review Of Career Offender Sentences: The Case For Coram Nobis, Douglas J. Bench Jr.
University of Michigan Journal of Law Reform
Occasionally, criminals correctly interpret the law while courts err. Litigation pursuant to the federal Armed Career Criminal Act (ACCA) includes numerous examples. The ACCA imposes harsher sentences upon felons in possession of firearms with prior "violent felony" convictions. Over time, courts defined "violent" so contrary to its common meaning that it eventually came to encompass driving under the influence, unwanted touching, and the failure to report to correctional facilities. However, in a series of recent decisions, the Supreme Court has attempted to clarify the meaning of violent in the context of the ACCA and, in the process, excluded such offenses. …
J.D.B. V. North Carolina And The Reasonable Person, Christopher Jackson
J.D.B. V. North Carolina And The Reasonable Person, Christopher Jackson
Michigan Law Review First Impressions
This Term, the Supreme Court was presented with a prime opportunity to provide some much-needed clarification on a "backdrop" issue of law-one of many topics that arises in a variety of legal contexts, but is rarely analyzed on its own terms. In J.D.B. v. North Carolina, the Court considered whether age was a relevant factor in determining if a suspect is "in custody" for Miranda purposes, and thus must have her rights read to her before being questioned by the police. Miranda, like dozens of other areas of law, employs a reasonable person test on the custodial question: it asks …
The Consequences Of Criminal Convictions For Misdemeanor Or Felony Offenses, David P. Baugh
The Consequences Of Criminal Convictions For Misdemeanor Or Felony Offenses, David P. Baugh
Washington and Lee Journal of Civil Rights and Social Justice
No abstract provided.
Actual Innocence After Friedman V. Rehal: The Second Circuit Pursues A New Mechanism For Seeking Justice In Actual Innocence Cases, Jonathan M. Kirshbaum
Actual Innocence After Friedman V. Rehal: The Second Circuit Pursues A New Mechanism For Seeking Justice In Actual Innocence Cases, Jonathan M. Kirshbaum
Pace Law Review
No abstract provided.
An Illusory Right To Appeal: Substantial Constitutional Questions At The New York Court Of Appeals, Meredith R. Miller
An Illusory Right To Appeal: Substantial Constitutional Questions At The New York Court Of Appeals, Meredith R. Miller
Pace Law Review
No abstract provided.
Mitigating The Prosecutor's Dilemma In Light Of Melendez-Diaz: Live Two-Way Videoconferencing For Analysit Testimony Regarding Chemical Analysis, Amy Ma
Nevada Law Journal
No abstract provided.
State V. Jackson And The Explosion Of Liability For Felony Murder, Brian E. Brupbacher
State V. Jackson And The Explosion Of Liability For Felony Murder, Brian E. Brupbacher
Mercer Law Review
In The Discourses, Niccold Machiavelli wrote, "The dangers involved in conspiracies[] ... are considerable, and go on all the time, for in a conspiracy dangers crop up alike in forming the plot, in carrying it out, and as a result of its having been carried out."' Although by its context this remark refers to conspiracies to commit regicide and the problems these conspiracies pose to the conspirators, this remark well describes practical and legal problems that can result from conspiracies to commit felonies. In Georgia this is particularly true following the June 28, 2010 ruling in State v. Jackson …
Staring Down The Sights At Mcdonald V. City Of Chicago: Why The Second Amendment Deserves The Kevlar Protection Of Strict Scrutiny, James J. Williamson Ii
Staring Down The Sights At Mcdonald V. City Of Chicago: Why The Second Amendment Deserves The Kevlar Protection Of Strict Scrutiny, James J. Williamson Ii
Legislation and Policy Brief
In June of 2008, the Supreme Court handed down a landmark decision in District of Columbia v. Heller, declaring that a District of Columbia law prohibiting the possession of handguns in a private home for personal protection violated the Second Amendment of the Constitution. Justice Scalia, writing for a 5-4 majority, recognized that the protections provided by the Second Amendment apply to individuals—not just “militias”—and emphatically declared that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.” After four years of …
To Plea Or Not To Plea: The Benefits Of Establishing An Institutionalized Plea Bargaining System In Japan, Priyanka Prakash
To Plea Or Not To Plea: The Benefits Of Establishing An Institutionalized Plea Bargaining System In Japan, Priyanka Prakash
Washington International Law Journal
Plea bargaining, the practice that permits the prosecution and defense to negotiate reduced charges or a lighter sentence in exchange for the defendant’s guilty plea, is a bedrock component of the criminal justice system in many nations. The Japanese legal community, however, has resisted introducing plea bargaining into Japan’s legal system. From 2001 to 2004, the Japanese legislature passed over twenty reform laws to prepare the country’s criminal justice system for the demands of the twenty-first century, but provisions for plea bargaining were conspicuously absent from the reform package. This is largely because the Japanese legal community views plea bargaining …
Death Penalty Sentencing In Japan Under The Lay Assessor System: Avoiding The Avoidable Through Unanimity, Elizabeth M. Sher
Death Penalty Sentencing In Japan Under The Lay Assessor System: Avoiding The Avoidable Through Unanimity, Elizabeth M. Sher
Washington International Law Journal
The Lay Assessor Act of 2004 mandated the creation of a mixed lay judge system, called the saibanin seido. Under this new system, jurors, or lay judges, sit with professional judges to decide the fate of criminal defendants. The Lay Assessor Act requires lay judges to decide both the verdict and sentencing of defendants in the same sitting. The verdict and sentence require support from a majority of the jurors and must include one professional judge on the panel. For certain crimes in Japan, the death penalty is one possible sentence. Under the saibanin seido system, for the first …
Making Appearances Matter: Recusal And The Appearance Of Bias, Dmitry Bam
Making Appearances Matter: Recusal And The Appearance Of Bias, Dmitry Bam
BYU Law Review
No abstract provided.
Construing The Outer Limits Of Sentencing Authority: A Proposed Bright-Line Rule For Noncapital Proportionality Review, Kevin White
BYU Law Review
No abstract provided.
Life, Death, And Neuroimaging: The Advantages And Disadvantages Of The Defense's Use Of Neuroimages In Capital Cases -Lessons From The Front, John H. Blume, Emily C. Paavola
Life, Death, And Neuroimaging: The Advantages And Disadvantages Of The Defense's Use Of Neuroimages In Capital Cases -Lessons From The Front, John H. Blume, Emily C. Paavola
Mercer Law Review
Over the past several decades, commentators and scholars from the medical, legal, and social science fields have produced a massive body of literature on the intersection of law and neuroimaging. Earlier writings focused on explaining various new techniques for developing brain images, exploring how such images might be relevant in legal proceedings, and addressing evidentiary issues posed by the use of such images in court. More recent publications correspond with a vast expansion of research and funding in the area of neuroscience and address a wide variety of topics, such as the use of neuroimaging to detect deception, predict recidivism …
“Like Wolves In Sheep’S Clothing”: Combating Racial Bias In Washington State’S Criminal Justice System, Krista L. Nelson, Jacob J. Stender
“Like Wolves In Sheep’S Clothing”: Combating Racial Bias In Washington State’S Criminal Justice System, Krista L. Nelson, Jacob J. Stender
Seattle University Law Review
Despite their differences, both the majority and concurring opinions in Monday present new ways to address prosecutorial misconduct, deter the injection of racial bias into courtroom proceedings, and create substantively similar outcomes. Part II of this Note discusses the traditional prosecutorial misconduct test in Washington State, as well as the rules articulated by the Monday majority and concurrence. Part III discusses the implications of both the majority and concurring opinions, the primary differences in their approaches to deterrence, the degree of racial bias they require to warrant reversal of a conviction, and the discretion they afford the judiciary. Part III …
The Impact Of Implicit Racial Bias On The Exercise Of Prosecutorial Discretion, Robert J. Smith, Justin D. Levinson
The Impact Of Implicit Racial Bias On The Exercise Of Prosecutorial Discretion, Robert J. Smith, Justin D. Levinson
Seattle University Law Review
The Article is organized as follows: Part II provides an introduction to implicit bias research, orienting readers to the important aspects of implicit bias most relevant to prosecutorial discretion. Part III begins the examination of implicit bias in the daily decisions of prosecutors. The Part presents key prosecutorial discretion points and specifically connects each of them to implicit bias. Part IV recognizes that, despite compelling proof of implicit bias in a range of domains, there is no direct empirical proof of implicit bias in prosecutorial decision-making. It thus calls for an implicit bias research agenda designed to further examine how …
“If Justice Is Not Equal For All, It Is Not Justice”: Racial Bias, Prosecutorial Misconduct, And The Right To A Fair Trial In State V. Monday, Michael Callahan
“If Justice Is Not Equal For All, It Is Not Justice”: Racial Bias, Prosecutorial Misconduct, And The Right To A Fair Trial In State V. Monday, Michael Callahan
Seattle University Law Review
This Note argues that of the three opinions from Monday, Washington state courts should follow Chief Justice Madsen’s concurring opinion. The Monday decision also raises three questions that none of the opinions adequately answer: who does Monday apply to, what conduct does Monday forbid, and what is the legal source of the rules from Monday? The court will have to answer these questions in the future to determine the scope of its new rules. Part II of this Note discusses how Washington courts previously addressed the issue of prosecutorial misconduct and appeals to racial bias in trials. Part …
Dead Wrong: Why Washington’S Deadly Weapon Criminal Sentencing Enhancement Needs “Enhancement”, James Harlan Corning
Dead Wrong: Why Washington’S Deadly Weapon Criminal Sentencing Enhancement Needs “Enhancement”, James Harlan Corning
Seattle University Law Review
This Comment confronts the difficult question of how to reformulate the deadly weapon sentencing enhancement to better align it with the policy goals of deterring and punishing armed crime. Part II explores the constitutional and practical defects in each of the three formulations of the sentencing enhancement’s armed requirement by delving into the enhancement’s legislative history and the judicial struggle to interpret it. Part III analyzes the need for a more nuanced approach to the weapon enhancement by exploring key criticisms about the enhancement’s scope and application. Part IV argues that the Washington legislature must provide courts with more rigid …
Slavery Revisited In Penal Plantation Labor, Andrea C. Armstrong
Slavery Revisited In Penal Plantation Labor, Andrea C. Armstrong
Seattle University Law Review
This Article argues that society must critically examine the types of labor we require our inmates to perform and prohibit the imposition of slavery, even when the enslaved is an inmate. Part II focuses on the text and history of Section 1 of the Thirteenth Amendment11 and argues that the Amendment’s exception allowing forced inmate labor is not as broad as it first appears. Part III examines the Eighth Amendment and how the imposition of slave status on inmates should be considered cruel and unusual punishment. Lastly, Part IV applies these concepts to the history and operation of one such …
Domestic Violence And The Budget Crisis: The Use Of A Risk Assessment Tool To Manage Cases In Prosecutors’ Offices, Carrie M. Hobbs
Domestic Violence And The Budget Crisis: The Use Of A Risk Assessment Tool To Manage Cases In Prosecutors’ Offices, Carrie M. Hobbs
Seattle University Law Review
This Comment addresses the growing concern that the incompatible forces of shrinking budgets and increased caseloads are leading to ineffective domestic violence case management, particularly in prosecutors’ offices. With so many cases and so few resources, prosecutors need tools to discern which cases should have priority. Recognizing that risk assessment tools have many drawbacks, this Comment advocates for development of a risk assessment tool that can help prosecutors determine which cases to pursue and assist them in making other pretrial determinations. Part II of this Comment provides a background on domestic violence research and isolates the issues that arise in …