Law Commons^™

The Machinery Of Criminal Justice, Stephanos Bibas

All Faculty Scholarship

Two centuries ago, the American criminal justice was run primarily by laymen. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, and denounced the guilty. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for the voice of the jury. The public sees little of how this assembly-line justice works, and victims and defendants have largely lost their day in court. As a result, victims rarely hear defendants express remorse and apologize, and defendants rarely receive forgiveness. This lawyerized machinery has purchased …

Interrogation And The Roberts Court, Jonathan Witmer-Rich

Law Faculty Articles and Essays

Through 2010, the Roberts Court decided five cases involving the rules for police interrogation under the Fifth and Sixth Amendments: Kansas v. Ventris; Montejo v. Louisiana; Florida v. Powell; Maryland v. Shatzer; and Berghuis v. Thompkins. This Article argues that these decisions show the Roberts Court reshaping constitutional interrogation rules according to a new (as-yet unarticulated) principle: “fair play” in interrogations. The Warren Court believed that suspects in police interrogation were vulnerable to inherent compelling pressures; the Court correspondingly created procedural interrogation rules under the Fifth and Sixth Amendments (Miranda and Massiah) to protect suspects. The Roberts Court does not …

Sovereignty, Not Due Process: Personal Jurisdiction Over Nonresident, Alien Defendants, Austen L. Parrish

Articles by Maurer Faculty

The Due Process Clause with its focus on a defendant's liberty interest has become the key, if not only, limitation on a court's exercise of personal jurisdiction. This due process jurisdictional limitation is universally assumed to apply with equal force to alien defendants as to domestic defendants. With few exceptions, scholars do not distinguish between the two. Neither do the courts. Countless cases assume that foreigners have all the rights of United States citizens to object to extraterritorial assertions of personal jurisdiction.

But is this assumption sound? This Article explores the uncritical assumption that the same due process considerations apply …

Are Police Free To Disregard Miranda?, Steven D. Clymer

Cornell Law Faculty Publications

Compelled Statements From Police Officers And Garrity Immunity, Steven D. Clymer

Cornell Law Faculty Publications

In this Article, Professor Steven Clymer describes the problem created when police departments require officers suspected of misconduct to answer internal affairs investigators' questions or face job termination. Relying on the Supreme Court's decision in Garrity v. New Jersey, courts treat such compelled statements as immunized testimony. That treatment not only renders such a statement inadmissible in a criminal prosecution of the suspect police officer, it also may require the prosecution to shoulder the daunting and sometimes insurmountable burden of demonstrating that its physical evidence, witness testimony, and strategic decisionmaking are untainted by the statement. Because police internal affairs …

Overbroad Civil Forfeiture Statutes Are Unconstitutionally Vague, Deborah Duseau, David Schoenbrod

Articles & Chapters

No abstract provided.

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

Faculty Articles and Other Publications

No abstract provided.

Truth In Sentencing: Accepting Responsibility Under The United States Sentencing Guidelines, Bradford Mank

Faculty Articles and Other Publications

The United States Sentencing Guidelines (hereinafter Guidelines) allow federal district courts to reduce a defendant's sentence if the defendant "clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct .... " In United States v. Perez-Franco, the United States Court of Appeals for the First Circuit held that the above Guidelines section on acceptance of responsibility did not require a defendant to accept responsibility for charges that were to be dismissed as part of a plea agreement. The Perez-Franco decision is an affront to the fundamental principle that a defendant ought to take personal responsibility for …

Right Against Self-Incrimination -- "Public Safety" Exception, David C. Williams

Articles by Maurer Faculty

No abstract provided.