Law Commons^™

On The Perils Of Line-Drawing: Juveniles And The Death Penalty, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.

Symposium: Equality Versus Discretion In Sentencing, Ilene H. Nagel, Stephen Breyer, Terence Mccarthy

Articles by Maurer Faculty

No abstract provided.

Negotiated Pleas Under The Federal Sentencing Guidelines: The First Fifteen Months, Ilene H. Nagel, Stephen J. Schulhofer

Articles by Maurer Faculty

No abstract provided.

An Introduction To The American Criminal Justice Process, Jerold H. Israel

Book Chapters

A useful description of the American criminal justice process must begin by acknowledging that there is no single set of criminal justice procedures applied uniformly throughout this country. Variations exist both from jurisdiction to jurisdiction and from one type of case to another within the same jurisdiction. In our overview, we will take note of a few of the more significant variations, but our primary focus will be on the procedural pattern followed for most cases in most jurisdictions. In this section, we will briefly examine three structural elements that account for many of the variations in the process. If …

Are Twelve Heads Better Than One?, Phoebe C. Ellsworth

Articles

Few advocates of the jury system would argue that the average juror is as competent a tribunal as the averagejudge. Whatever competence the jury has is a function of two of its attributes: its number and its interaction. The fact that a jury must be composed of at least six people,' with different backgrounds, experiences, and perspectives, provides some protection against decisions based on an idiosyncratic view of the facts. Not only must the jury include at least six people, but they must be chosen in a manner that conforms to the ideal of the jury as representative of community …

Racial Discrimination In The State's Use Of Peremptory Challenges: The Application Of The United States Supreme Court's Decision In Batson V. Kentucky In South Carolina, John H. Blume

Cornell Law Faculty Publications

Some one hundred and six years before the United States Supreme Court's 1986 decision in Batson v. Kentucky the Court ruled that a black person is denied the equal protection of the laws when the State seeks to convict him of a criminal offense in a proceeding in which members of his race have been excluded from serving on the jury. From this straightforward and common-sense beginning, the Court stumbled and lurched for more than a century before arriving at another equally straightforward and common-sense decision in Batson. The purpose of this article is to examine the Supreme Court's …

Commentary, The Selling Of Jury Deliberations, Robert F. Nagel

Publications

No abstract provided.

Some Doubts Concerning The Selection Hypothesis Of George Priest, Douglas O. Linder

Faculty Works

No abstract provided.

Needed: A Rewrite, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Proposed far-reaching changes in the Federal Rules of Evidence are of major practical significance to every lawyer involved in the criminal justice process. The proposed changes are contained in a recent report by the American Bar Association Criminal Justice Section's Rules of Criminal Procedure and Evidence Committee. The report was selected for publication in Federal Rules Decisions, 120 F.R.D. 299 (1988), because of its interest to federal practitioners and judges. More than 40 judges, lawyers, and scholars were involved in the four-year study, and experts on each particular rule acted as "reporters" to the committee on those areas.

The report …

Duckworth V. Eagan: A Little-Noticed Miranda Case That May Cause Much Mischief, Yale Kamisar

Articles

Professor Yale Kamisar, the country's foremost scholar of Miranda and police interrogation, presents an analysis and critique of the Supreme Court's latest interpretation of Miranda. In Duckworth, a 5-4 Court upheld the "if and when" language systematically used by the Hammond, Indiana, Police Department: "We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court." The real issue was whether the police effectively conveyed the substance of a vital part of Miranda: the right to have a lawyer appointed prior to any questioning. Professor Kamisar …

The Fifth Amendment: If An Aid To The Guilty Defendant, An Impediment To The Innocent One, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

The fifth amendment's privilege not to answer, critics carp, insulates the guilty defendant from revealing his complicity. While this is true, ironically it also can shackle the innocent defendant from attempting to prove that another person committed the crime. If that other person asserts the fifth amendment in response to questions designed to substitute him for the defendant, the innocent defendant can neither surmount that person's assertion nor benefit therefrom.

Consider this set of facts. A murder is committed. Defendant, charged with the crime, has evidence that Witness killed the victim. The prosecution believes only one person committed the crime. …

Miranda Decision Revisited: Did It Give Criminals Too Many Rights?, Paul Marcus, Stephen J. Markman

Faculty Publications

No abstract provided.

The Prosecutor As "Minister Of Justice", Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Times have changed. Today, prosecutors are on top of the world. Their powers are enormous, and constantly reinforced by sympathetic legislatures and courts. The "awful instruments of the criminal law," as Justice Frankfurter described the system,1 are today supplemented with broad new crimes, easier proof requirements, heavier sentencing laws, and an extremely cooperative judiciary, from district and state judges, to the highest Court in the land.

In Search Of The Virtuous Prosecutor: A Conceptual Framework, Stanley Z. Fisher

Faculty Scholarship

Questions about the scope and content of the duty to "seek justice" pervade prosecutorial work. Prosecutors are required to serve in a dual role: they are both advocates seeking conviction and "ministers of justice." Observers have complained about a tendency on the part of prosecutors to prefer the former of these "schizophrenic" obligations to the latter. This is commonly described as a tendency to behave overzealously or according to a "conviction psychology. ' "

State Constitutional Protection For Defendants In Criminal Prosecutions, Paul Marcus

Faculty Publications

No abstract provided.

Postsentence Sentencing: Determining Probation Revocation Sanctions, Bradford Mank

Faculty Articles and Other Publications

Although procedural due process requirements govern the proof of a violation in a probation revocation hearing, judges exercise almost total discretion in deciding what sanctions to impose once a violation is established. These postsentence judgments can be as important as the initial sentencing. Sanctions for even minor probation violations can range from obligating a probationer to meet with his probation officer more frequently to executing a suspended prison sentence. The Supreme Court recognized in Morrissey v. Brewer that the choice of sanctions is often more complex than the proof of a violation. Principles must be developed to regulate postsentence sentencing. …

Broken Promises And Involuntary Confessions: May A State Introduce Incriminating Statements Made By A Defendant As A Result Of Promises In A Plea Bargain Agreement If The Defendant Breaches That Agreement?, Bradford Mank

Faculty Articles and Other Publications

There is a substantial constitutional question concerning whether admissions made pursuant to a plea bargain that the defendant has breached are admissible under the fifth amendment's privilege against compelled self-incrimination or the due process clauses of the fifth and fourteenth amendments. Courts have reached conflicting results in regard to whether such statements are voluntary.lo This Article argues that it is difficult to resolve whether such admissions are voluntary because courts have not provided a clear definition as to under what circumstances a confession is voluntary in accordance with the dictates of the fifth and fourteenth amendments.

Plea Bargaining And The Supreme Court, Loftus Becker

Faculty Articles and Papers

No abstract provided.

White V. State: And Now For Something Different, Susan Stuart, Richard Pitts

Law Faculty Publications

No abstract provided.

Habeas Corpus Committee - Correspondence, Lewis F. Powell Jr.

Habeas Corpus Committee

No abstract provided.

Bright Line Seizures: The Need For Clarity In Determining When Fourth Amendment Activity Begins, Edwin J. Butterfoss

Faculty Scholarship

This Article proposes that the Mendenhall-Royer standard, as presently interpreted, should be discarded because it is unworkable and fails to strike the appropriate balance between the liberty interests of citizens and the interest of the state in combatting crime. The test is unworkable because the outcomes of cases turn on subtle factual distinctions unrelated to an individual's actual freedom to end an encounter with a police officer, making it difficult for police officers to apply the standard in the field and adjust their conduct accordingly. Moreover, the standard provides insufficient protection for an individual's rights by failing to consider the …

Consequences Of Federalizing Criminal Law, Roger J. Miner '56

Criminal Law

No abstract provided.

The Right To Counsel Under Attack, David Rudovsky

All Faculty Scholarship

No abstract provided.

The Adverse Testimony Privilege: Time To Dispose Of A "Sentimental Relic", David Medine

Articles by Maurer Faculty

No abstract provided.

Unpleasant Facts: The Supreme Court's Response To Empirical Research On Capital Punishment, Phoebe C. Ellsworth

Book Chapters

Slowly at first, and then with accelerating frequency, the courts have begun to examine, consider, and sometimes even require empirical data. From 1960 to 1981, for example, use of the terms "statistics" and "statistical" in Federal District and Circuit Court opinions increased by almost 15 times.1 Of course, citation rates indicate only that a topic is considered worthy of mention, not that it is taken seriously, or even understood. Nonetheless, in a number of areas, such as jury composition and employment discrimination, the courts have come to rely on empirical data as a matter of course.

In the last 25 …

Review Essay. What Makes Rape A Crime?, Lynne N. Henderson

Articles by Maurer Faculty

No abstract provided.

Don't Be Cowed By Scientific Evidence: A Pretrial Primer For Prosecutors And Defense Attorneys, F. Thomas Schornhorst

Articles by Maurer Faculty

No abstract provided.

Role Of The Criminal Defense Lawyer In Representing The Mentally Impaired Defendant: Zealous Advocate Or Officer Of The Court, Rodney J. Uphoff

Faculty Publications

This article examines a difficult question in the representation of mentally impaired criminal defendants: should counsel be obligated to inform the court of doubts about a client's competency to stand trial even though doing so may be contrary to the client's wishes or best interests? Professor Rodney J. Uphoff analyzes authorities that impose such an obligation on defense lawyers, including an American Bar Association Criminal Justice Standard and a recent decision of the Wisconsin Supreme Court, State v. Johnson. Uphoff concludes that these authorities needlessly undercut the mentally impaired defendant's right to zealous representation. He proposes an alternative ethical model …

Victims In The Criminal Process: A Utilitarian Analysis Of Victim Participation In The Charging Decision, Sarah N. Welling

Law Faculty Scholarly Articles

Crime victims are currently being given the right to participate in criminal prosecutions at both the sentencing and plea bargaining stages. These are important steps in a criminal prosecution, but both the sentence and the plea bargain are dependent on the initial charging decision which determines what crime is to be prosecuted or whether there is to be any prosecution at all. As a prerequisite to both a plea bargain or a sentence, the charging decision is the crux of the prosecution.

Given the importance of the charging decision, and the fact that some jurisdictions have granted victims a right …

Proving The Defendant's Bad Character, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The classic study of the American jury shows that when a defendant's criminal record is known and the prosecution's case has weaknesses, the defendant's chances of acquittal are thirty-eight percent, compared to sixty-five percent otherwise. Because of the danger that jurors will assume that the defendant is guilty based on proof that his bad character predisposes him to an act of crime, the courts and legislatures have attempted to circumscribe the use of such evidence. Some prosecutors, however, although well aware of the insidious effect such prejudicial evidence can have on jurors, violate the rules of evidence, as well as …