Law Commons^™

You Have The Right To Remain Silent, And It Can And Will Be Used Against You: Addressing Post-Arrest Pre-Miranda Silence, Maria P. Hirakis

Touro Law Review

The right to remain silent has long been recognized by the Supreme Court as requiring a high degree of protection. Since Miranda v. Arizona was decided in 1966, procedural safeguards have been put in place to inform individuals of this right upon arrest. Yet, a gray area exists when it comes to the use of an individual's silence post-arrest. It may surprise some that a point in time exists when an individual has not yet been read their Miranda rights post-arrest. Several circuit courts have taken the position that any silence that follows arrest but precedes the reading of Miranda …

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 …

Police Using Photoshop To Alter A Suspect's Photo In Lineup And Courts Allowing It: Does It Violate Due Process?, Molly Eyerman

Catholic University Law Review

Eyewitness identification remains one of the most popular pieces of evidence in criminal trials despite the decades of research supporting this evidence unreliability. In August 2019, the federal case United State v. Allen became nationwide news when it was revealed that police used Photoshop to remove Allen’s facial tattoo before using the altered-photo in a photo array. None of the eyewitnesses described the culprit as having a facial tattoo, though they identified Allen from the array. Allen is not the only case to have police use Photoshop to edit photos used in arrays. This has been a common practice used …

The “Critical Stage” Of Plea-Bargaining And Disclosure Of Exculpatory Evidence, Gabriella Castellano

NYLS Law Review

No abstract provided.

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

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

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

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

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

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

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 …

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

Erwin Chemerinsky

No abstract provided.

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 …

Shakin' And Bakin': The Supreme Court's Remarkable Criminal Law Rulings Of The 1999 Term, William E. Hellerstein

Touro Law Review

No abstract provided.

People V. Johnson, Donna A. Napolitano

Touro Law Review

No abstract provided.

People V. Buie, Deborah A. Monastero

Touro Law Review

No abstract provided.

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

Andrea D. Lyon

No abstract provided.

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

Touro Law Review

No abstract provided.

Presumed Guilty, Terrence Cain

Faculty Scholarship

It would probably surprise the average American to learn that prosecutors need only prove guilt beyond a reasonable doubt sometimes. Although the Due Process Clauses of the Constitution require that the government prove each element of an alleged criminal offense beyond a reasonable doubt, the use of statutory presumptions has relieved the government of this responsibility, and in some cases, has even shifted the burden to the defendant to disprove the presumption. Likewise, the Sixth Amendment grants a criminal defendant the right to have the jury and the jury alone determine whether the government has met its burden and ultimately …

Victim Harm, Retributivism And Capital Punishment: A Philosophy Critique Of Payne V. Tennessee , R. P. Peerenboom

Pepperdine Law Review

No abstract provided.

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Pepperdine Law Review

No abstract provided.

Individual Autonomy Versus Community: Is It All Or Nothing? An Analysis Of City Of Chicago V. Morales , Keasa Hollister

Pepperdine Law Review

No abstract provided.

The Absentee Post-Conviction Constitutional Safeguards – People V. Zowaski, Danielle M. Hansen

Touro Law Review

No abstract provided.

Democracy And Criminal Discovery Reform After Connick And Garcetti, Janet Moore

Faculty Articles and Other Publications

A leading cause of wrongful conviction and wasteful litigation in criminal cases is the nondisclosure of information beneficial to the defense by prosecutors and law enforcement as required by Brady v. Maryland. In Connick v. Thompson and Garcetti v. Ceballos, the Supreme Court weakened Brady’s enforceability by limiting the deterrent force of 42 U.S.C § 1983 liability. Connick highlights Garcetti’s implications as a criminal discovery case, which scholars have not fully analyzed. While Connick restricted § 1983 liability when prosecutors confess to suppressing exculpatory evidence, Garcetti restricted liability when prosecutors are disciplined for bringing Brady evidence to light. …

"Bad Juror" Lists And The Prosecutor's Duty To Disclose, Ira Robbins

Articles in Law Reviews & Other Academic Journals

Prosecutors sometimes use what are known as "bad juror" lists to exclude particular citizens from jury service. Not only does this practice interfere with an open and fair jury-selection process, thus implicating a defendant's right to be tried by a jury of his or her peers, but it also violates potential jurors' rights to serve in this important capacity. But who is on these lists? And is a prosecutor required to disclose the lists to defense counsel? These questions have largely gone unnoticed by legal analysts. This Article addresses the prosecutor's duty to disclose bad-juror lists. It reviews the federal …