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Criminal Procedure

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Full-Text Articles in Law

Eliminating Rule 609 To Provide A Fair Opportunity To Defend Against Criminal Charges: A Proposal To The Advisory Committee On The Federal Rules Of Evidence, Jeffrey Bellin May 2024

Eliminating Rule 609 To Provide A Fair Opportunity To Defend Against Criminal Charges: A Proposal To The Advisory Committee On The Federal Rules Of Evidence, Jeffrey Bellin

Faculty Publications

Federal Rule of Evidence 609 authorizes the admission of prior convictions to impeach criminal defendants who testify. And in this important and uniquely damaging application, the [r]ule’s logic fails, distorting American trials and depriving defendants of a fair opportunity to defend against the charges. The Advisory Committee [on Evidence Rules (the “Advisory Committee”)] should propose the elimination of Rule 609 and prohibit cross-examination with specific instances of a criminal defendant’s past conduct when those instances are unrelated to the defendant’s testimony and unconnected to the case.

This short essay begins by setting out the proposed rule change alongside a proposed …


Prosecutorial Storytelling Through Intrinsic Evidence, Brian Chen Apr 2024

Prosecutorial Storytelling Through Intrinsic Evidence, Brian Chen

Pepperdine Law Review

Crimes make for compelling stories. So juries make for an eager audience. Jurors want to—indeed, expect to—learn what the defendant did, how they did it, and why they deserve punishment. Capable prosecutors know how to deliver. Trial narratives empower jurors to link discrete pieces of evidence and infer facts from circumstantial proof. Only then can they render a verdict consistent with their sense of justice. Federal courts thus afford wide leeway for prosecutors to present their case as they please, with the evidence at their disposal. The Federal Rules of Evidence delineates the scope of that discretion. Under Rule 404(b), …


Whom Do Prosecutors Protect?, Vida Johnson Apr 2024

Whom Do Prosecutors Protect?, Vida Johnson

Georgetown Law Faculty Publications and Other Works

Prosecutors regard themselves as public servants who fight crime and increase community safety on behalf of their constituents. But prosecutors do not only seek to protect those they are supposed to serve. Instead, prosecutors often trade community safety, privacy, and even the constitutional rights of the general public to enlarge police power. Prosecutors routinely advocate for weaker public rights, shield police from public accountability, and fail to prosecute police when they break the law.

This Article will show how prosecutors often protect police at the expense of the public. This Article suggests a novel theory of evaluating the conduct of …


Problem-Solving Courts And The Outcome Oversight Gap, Erin R. Collins Mar 2024

Problem-Solving Courts And The Outcome Oversight Gap, Erin R. Collins

UMKC Law Review

The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system. The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money. And they do so effectively – at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform. But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking. So why do they persist?

This Article seeks to answer that question by scrutinizing …


The Automated Fourth Amendment, Maneka Sinha Jan 2024

The Automated Fourth Amendment, Maneka Sinha

Emory Law Journal

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible.

Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …


Neglected Discovery, Jenia I. Turner, Ronald F. Wright, Michael Braun Jan 2024

Neglected Discovery, Jenia I. Turner, Ronald F. Wright, Michael Braun

Faculty Journal Articles and Book Chapters

In recent decades, many states have expanded discovery in criminal cases. These reforms were designed to make the criminal process fairer and more efficient. The success of these changes, however, depends on whether defense attorneys actually use the new discovery opportunities to represent their clients more effectively. Records from digital evidence platforms reveal that defense attorneys sometimes fail to carry out their professional duty to review discovery. Analyzing a novel dataset we obtained from digital evidence platforms used in Texas, we found that defense attorneys never accessed any available electronic discovery in a substantial number of felony cases between 2018 …


The Procedural Justice Industrial Complex, Shawn E. Fields Jan 2024

The Procedural Justice Industrial Complex, Shawn E. Fields

Faculty Scholarship

The singular focus on procedural justice police reform is dangerous. Procedurally just law enforcement encounters provide an empirically proven subjective sense of fairness and legitimacy, while obscuring substantively unjust outcomes emanating from a fundamentally unjust system. The deceptive simplicity of procedural justice – that a polite cop is a lawful cop – promotes a false consciousness among would-be reformers that progress has been made, evokes a false sense of legitimacy divorced from objective indicia of lawfulness or morality, and claims the mantle of “reform” in the process. It is not just that procedural justice is a suboptimal type of reform; …


Bail At The Founding, Kellen R. Funk, Sandra G. Mayson Jan 2024

Bail At The Founding, Kellen R. Funk, Sandra G. Mayson

Faculty Scholarship

How did criminal bail work in the Founding era? This question has become pressing as bail, and bail reform, have attracted increasing attention, in part because history is thought to bear on the meaning of bail-related constitutional provisions. To date, however, there has been no thorough account of bail at the Founding. This Article begins to correct the deficit in our collective memory by describing bail law and practice in the Founding era, from approximately 1790 to 1810. In order to give a full account, we surveyed a wide range of materials, including Founding-era statutes, case law, legal treatises, and …


Take The Motherless Children Off The Street: Fetal Alcohol Syndrome And The Criminal Justice System, Michael L. Perlin, Heather Ellis Cucolo Apr 2023

Take The Motherless Children Off The Street: Fetal Alcohol Syndrome And The Criminal Justice System, Michael L. Perlin, Heather Ellis Cucolo

Articles & Chapters

Remarkably, there has been minimal academic legal literature about the interplay between fetal alcohol syndrome disorder (FASD) and critical aspects of many criminal trials, including issues related to the role of experts, quality of counsel, competency to stand trial, the insanity defense, and sentencing and the death penalty. Nor has there been any literature about the interplay between FASD-related issues and the legal school of thought known as therapeutic jurisprudence.

In this article, the co-authors will first define fetal alcohol syndrome and explain its significance to the criminal justice system. We will then look at the specific role of experts …


Plea Bargaining's Uncertainty Problem, Jeffrey Bellin Feb 2023

Plea Bargaining's Uncertainty Problem, Jeffrey Bellin

Faculty Publications

While commentators roundly condemn plea bargaining, the criticism can be as muddled as the practice itself. Critics’ primary target is the “trial penalty.” But a differential between guilty-plea and trial sentences seems inevitable in any system that allows defendants to concede guilt. And, as a new wave of “progressive prosecutors” is demonstrating, gaps between (unusually lenient) plea offers and long (potential) post-trial sentences are not only a strong incentive to plead guilty but also a powerful tool for reducing American penal severity. Other critiques point to flaws that parallel those found in the broader system, overlooking that plea bargaining is …


The Slippery Concept Of "Object And Purpose" In International Criminal Law, Patrick J. Keenan Jan 2023

The Slippery Concept Of "Object And Purpose" In International Criminal Law, Patrick J. Keenan

American University International Law Review

In little more than twenty-five years, the field of international criminal law has grown from a small slice of public international law into a functioning system of international justice, complete with multiple juridical bodies and substantial scholarly attention. Building on the legacy of the Nuremberg Tribunals and drawing from international humanitarian law, human rights law, and domestic criminal law principles, international criminal law has become its own discipline. Creating any new field of law is a complicated endeavor; this is especially true when the field affects and is affected by so many politically sensitive issues. Throughout this doctrinal experiment, one …


Forensic Microbiome Evidence: Fourth Amendment Applications And Court Acceptance, Trason Lasley Jan 2023

Forensic Microbiome Evidence: Fourth Amendment Applications And Court Acceptance, Trason Lasley

Catholic University Journal of Law and Technology

No abstract provided.


Plea Bargains: Efficient Or Unjust?, Jeffrey Bellin, Erin Blondel, John Flynn, Elana Fogel, Anjelica Hendricks, Carissa Byrne Hessick Jan 2023

Plea Bargains: Efficient Or Unjust?, Jeffrey Bellin, Erin Blondel, John Flynn, Elana Fogel, Anjelica Hendricks, Carissa Byrne Hessick

Faculty Publications

The vast majority of state and federal cases end in plea bargains. The practice has eased backlogs and may benefit some defendants — but the trade-offs, some say, are too steep. Is there a better way?


Hostility Is In The Eye Of The Beholder: Why Congress Should Decriminalize Hostile Work Environment Sexual Harassment In The Military, Adam J. Crane Jan 2023

Hostility Is In The Eye Of The Beholder: Why Congress Should Decriminalize Hostile Work Environment Sexual Harassment In The Military, Adam J. Crane

Criminal Law Practitioner

In 2022, for the first time in American history, Congress enacted legislation criminalizing hostile work environment sexual harassment. More serious types of sexual harassment have long been criminal under the Uniform Code of Military Justice, but hostile work environment harassment is a civil wrong, not a crime, and should not have been made into one. Section 539D of the National Defense Authorization Act for Fiscal Year 2022 (now listed under Article 134, UCMJ (Sexual Harassment), is both unconstitutional and counterproductive. It violates the Fifth Amendment for vagueness by failing to provide fair notice of what is prohibited, and the First …


Vulnerable Fraudsters: Reverse Affinity Fraud In Cases Of Public Hoaxes, Caroline E. Vordtriede Jan 2023

Vulnerable Fraudsters: Reverse Affinity Fraud In Cases Of Public Hoaxes, Caroline E. Vordtriede

Criminal Law Practitioner

This Article examines reverse affinity fraud, which is affinity fraud in the context of public hoaxes. In traditional affinity fraud the fraudster targets a vulnerable group, whereas in cases of public hoaxes the fraudster portrays herself as part of a vulnerable group and targets the well-meaning and sympathetic general public. This Article explores the mindset and characteristics of vulnerable fraudsters in reverse affinity frauds by analyzing the cases of Sherri Papini and Lacey Spears. Both Papini and Spears utilized social media and online giving sites to defraud the public, and their cases highlight the unique challenges prosecutors have in proving …


Lessons In Movement Lawyering From The Ferguson Uprising, Maggie Ellinger-Locke Jan 2023

Lessons In Movement Lawyering From The Ferguson Uprising, Maggie Ellinger-Locke

Human Rights Brief

Michael Brown was killed by Officer Darren Wilson on August 9, 2014. That day, I was on vacation in Michigan with my family, hanging on the beach and playing in the water. My father passed away from liver cancer exactly four months before, and I made the decision to close down his law practice in the St. Louis, Missouri area, and move to Washington, DC, where my longterm partner had taken a job. The trip to Michigan was supposed to be a stopover on my way to DC; my car was packed to the brim.


Age Is Not Just A Number: Problems With Florida’S Statutory Minimum Age For Juvenile Delinquency And Why It Must Be Increased, Natalie Brooks Jan 2023

Age Is Not Just A Number: Problems With Florida’S Statutory Minimum Age For Juvenile Delinquency And Why It Must Be Increased, Natalie Brooks

FIU Law Review

Under a Florida law enacted in 2021, any child over the age of six years old can be arrested and subjected to juvenile delinquency proceedings. Florida, as well as the United States in general, is an outlier when it comes to statutory minimum ages for juvenile delinquency. The most common and recommended minimum age internationally is fourteen years old, and many studies show that arresting, charging, and adjudicating children below the age of fourteen is counterproductive, as it leads to increased recidivism, potentially violates due process, and leaves lasting negative effects on children. This comment will discuss juvenile delinquency in …


Sexual Abuse Of Female Inmates In Federal Prisons, Brenda Smith Dec 2022

Sexual Abuse Of Female Inmates In Federal Prisons, Brenda Smith

Congressional and Other Testimony

This Article discusses the modest aspirations of the Prison Rape Elimination Act (“PREA”) that passed unanimously in the United States Congress in 2003. The Article posits that PREA created opportunities for holding correctional authorities accountable by creating a baseline for safety and setting more transparent expectations for agencies’ practices for protecting prisoners from sexual abuse. Additionally, the Article posits that PREA enhanced the evolving standards of decency for the Eighth Amendment and articulated clear expectations of correctional authorities to provide sexual safety for people in custody.


Designing For Justice: Pandemic Lessons For Criminal Courts, Cynthia Alkon Dec 2022

Designing For Justice: Pandemic Lessons For Criminal Courts, Cynthia Alkon

Faculty Scholarship

March 2020 brought an unprecedented crisis to the United States: COVID-19. In a two-week period, criminal courts across the country closed. But, that is where the uniformity ended. Criminal courts did not have a clear process to decide how to conduct necessary business. As a result, criminal courts across the country took different approaches to deciding how to continue necessary operations and in doing so many did not consider the impact on justice of the operational changes that were made to manage the COVID-19 crisis. One key problem was that many courts did not use inclusive processes and include all …


Courts Without Court, Andrew Guthrie Ferguson Oct 2022

Courts Without Court, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic Journals

What role does the physical courthouse play in the administration of criminal justice? This Article uses recent experiments with virtual courts to reimagine a future without criminal courthouses at the center. The key insight of this Article is to reveal how integral physical courts are to carceral control and how the rise of virtual courts helps to decenter power away from judges. This Article examines the effects of online courts on defendants, lawyers, judges, witnesses, victims, and courthouse officials and offers a framework for a better and less court-centered future. By studying post-COVID-19 disruptions around traditional conceptions of place, time, …


Is Misdemeanor Cash Bail An Unconstitutional Excessive Fine?, Barnett J. Harris Apr 2022

Is Misdemeanor Cash Bail An Unconstitutional Excessive Fine?, Barnett J. Harris

Pepperdine Law Review

The Excessive Fines Clause is one of the least developed clauses pertaining to criminal procedure in the Bill of Rights. In fact, the Supreme Court has only interpreted the Clause a few times in its entire history. Yet, on any given day, hundreds of thousands of people languish in jails without having been convicted of anything, because most of these people are unable to meet the bail amount a judge sets. This Essay examines the surprisingly under-explored relationship between misdemeanor cash bail & pretrial detention and the Excessive Fines and Excessive Bail Clauses of the Eighth Amendment, using the Supreme …


Quo Vadis? Assessing New York’S Civil Forfeiture Law, Steven L. Kessler Apr 2022

Quo Vadis? Assessing New York’S Civil Forfeiture Law, Steven L. Kessler

Touro Law Review

No abstract provided.


Bargaining For Abolition, Zohra Ahmed Apr 2022

Bargaining For Abolition, Zohra Ahmed

Faculty Scholarship

What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories.1 Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes.2 The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor …


The Dignitary Confrontation Clause, Erin L. Sheley Apr 2022

The Dignitary Confrontation Clause, Erin L. Sheley

Faculty Scholarship

For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving …


The Progressive Love Affair With The Carceral State, Kate Levine Apr 2022

The Progressive Love Affair With The Carceral State, Kate Levine

Articles

A Review of The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration. By Aya Gruber.


Jury Nullification As A Spectrum, Richard Lorren Jolly Mar 2022

Jury Nullification As A Spectrum, Richard Lorren Jolly

Pepperdine Law Review

Jury nullification traditionally refers to the jury’s power to deliver a verdict that is deliberately contrary to the law’s clearly dictated outcome. A spirited scholarship is built around this conception, with some painting nullification as democratic and others as anarchic. But this debate is largely unmoored from experience. In practice, courts have formally eliminated the jury’s authority to review the law and have established procedures that make it easier to prevent and overturn seemingly nullificatory verdicts. Thus, outside of a jury’s verdict acquitting a criminal defendant, jury nullification as traditionally understood does not exist. In no other context is a …


Cross-Examination Of Witnesses In Chinese Criminal Courts: Theoretical Debates, Practical Barriers, And Potential Solutions, Zhiyuan Guo Mar 2022

Cross-Examination Of Witnesses In Chinese Criminal Courts: Theoretical Debates, Practical Barriers, And Potential Solutions, Zhiyuan Guo

Vanderbilt Journal of Transnational Law

Questioning witnesses is essential for both fact-finding and ensuring the defendant's right to confrontation in criminal trials. Part I introduces the recently released judicial interpretation on the Application of Criminal Procedure Law by China's Supreme Court as a background for discussion of this Article. In Part II, the author sets the stage by arguing that resolution of questions concerning examination and cross-examination of witnesses is essential to the effective achievement of China's trial-centered criminal procedure law reform. In Part III, a historical review is given of the academic debate on the questioning of witnesses in Chinese criminal courts. Part IV …


Interrogating The Nonincorporation Of The Grand Jury Clause, Roger Fairfax Feb 2022

Interrogating The Nonincorporation Of The Grand Jury Clause, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

With the Supreme Court's recent incorporation-in Ramos v. Louisiana of the Sixth Amendment's jury unanimity requirement to apply to the states, the project of "total incorporation" is all but complete in the criminal procedure context. Virtually every core criminal procedural protection in the Bill of Rights has been incorporated through the Due Process Clause of the Fourteenth Amendment to constrain not only the federal government but also the states with one exception. The Fifth Amendment's grand jury right now stands alone as the only federal criminal procedural right the Supreme Court has permitted states to ignore. In one of the …


Citizen's Arrest And Race, Ira P. Robbins Jan 2022

Citizen's Arrest And Race, Ira P. Robbins

Articles in Law Reviews & Other Academic Journals

I begin with a mea culpa. In 2016, I published an article about citizen’s arrest. The idea for the article arose in 2014, when a disgruntled Virginia citizen attempted to arrest a law school professor while class was in progress. I set out to research and write a “traditional” law review article. In it, I traced the origins of the doctrine of citizen’s arrest to medieval England, imposing a positive duty on citizens to assist the King in seeking out suspected offenders and detaining them. I observed that the need for citizen’s arrest lessened with the development of organized and …


For Grand Juries, Roger Fairfax Jan 2022

For Grand Juries, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

In his provocative essay, Against Prosecutors, Professor Bennett Capers contributed to a now-robust conversation that was on the fringes just a decade ago. Although it remains to be seen whether the pendulum will swing away from the engagement with abolitionist theory that intensified in the wake of the May 2020 murder of George Floyd, a number of serious thinkers have staked out ground questioning the dogma that organs of the criminal legal system are inevitable.

Refusing to be burdened by conventions of the past, Capers trains his sights on another criminal justice institution—public prosecution. Although prosecutors long have been criticized …