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Full-Text Articles in Law
Corporate Cooperation In Criminal Investigations: Waiving Privileges Without Coercion, Emily S. Keller
Corporate Cooperation In Criminal Investigations: Waiving Privileges Without Coercion, Emily S. Keller
Golden Gate University Law Review
Part I of this comment explains the attorney-client privilege and the waiver doctrine and demonstrates the important role the privilege plays in our legal system. It shows why, according to the DOJ charging policy, waiver of the privilege is often needed during corporate investigations. It also addresses how the charging policy erodes the privilege in the corporate context, thereby creating governance problems for corporations. Part II provides legal definitions and standards for coerced waivers to show that the choice corporations must make between waiving the privilege or increasing their risk of indictment does not meet any legal test for coercion. …
A Crime Victim's Right To Be "Reasonably Heard": Kenna V. United States District Court, Michael P. Vidmar
A Crime Victim's Right To Be "Reasonably Heard": Kenna V. United States District Court, Michael P. Vidmar
Golden Gate University Law Review
In Kenna v. United States District Court, the Ninth Circuit held that under the Crime Victim's Rights Act ("CYRA"), a crime victim's right to be "reasonably heard" during sentencing was not limited to written impact statements, but included the right to allocute at any public proceeding. This was an issue of first impression in the Ninth Circuit. "No court of appeals had addressed the scope of this particular CVRA right." Two district courts had considered this issue and had reached contrary decisions. The Ninth Circuit agreed with the United States District Court for the District of Utah that a plausible …
Nonconsensual Waiver Of A Jury Trial: Closing The Door, But Not Completely: United States V. United States District Court, Dije Ndreu
Golden Gate University Law Review
In United States v. United States District Court, the Ninth Circuit held that the circumstances of a child sexual abuse case did not warrant an exception to Rule 23 of the Federal Rules of Criminal Procedure, which requires the government's consent for a defendant to waive a jury trial. The court determined that the district court's ruling, which allowed the defendant to waive a jury trial without the government's consent, was clearly erroneous as a matter of law, and granted the government's petition for a writ of mandamus to require the district court to hold a jury trial.
Defining "Ordinary Prudential Doctrines" After Booker: Why The Limited Remand Is The Least Of Many Evils, Michael Guasco
Defining "Ordinary Prudential Doctrines" After Booker: Why The Limited Remand Is The Least Of Many Evils, Michael Guasco
Golden Gate University Law Review
This Note examines the limited-remand approach in comparison with the approaches taken by the different circuits. Part I discusses the history of the Sentencing Guidelines and the cases, up to and including Booker, that completely changed the way the Sentencing Guidelines were used. Part II sets forth the history of the traditional plain error standard of review and the contemporary "Plain Error Problem." Part III examines the limited-remand approach and compares it with the approach taken in other circuits. Part IV argues that the limited-remand approach is the best of a list of bad possible choices but that the Ninth …
Violence In The Courts: The Ninth Circuit's Attempt To Grapple With And Pin Down What Is A "Crime Of Violence" In United States V. Serna, Daniel S. Cho
Golden Gate University Law Review
This Note examines the limitations of the strict categorical approach; the method by which sentencing courts and courts of review determine whether an offense is a crime of violence for sentence enhancement purposes. Part I of this Note examines the "crime of violence" sentence enhancement under the Federal Sentencing Guidelines ("Guidelines"). Part II examines the Ninth Circuit's analysis of what constitutes a crime of violence in United States v. Serna. Part III proposes that the types of sources available to sentencing courts when analyzing whether an offense is a violent crime should be expanded based on Justice O'Connor's dissenting opinion …
Unconstitutional Exploitation Of Delegated Authority: How To Deter Prosecutors From Using "Substantial Assistance" To Defeat The Intent Of Federal Sentencing Laws, Adriano Hrvatin
Golden Gate University Law Review
This Comment addresses whether the intent of the federal sentencing system is defeated when prosecutors reward high-level drug offenders with lenient sentences in exchange for testimony against less culpable co-conspirators. This Comment argues that prosecutors violate separation-of-powers principles when they move for downward departures on behalf of kingpins who provide substantial assistance in a case against less culpable co-defendants because Congress did not authorize such an exercise of prosecutorial discretion. In such instances where the intent of Congress is defeated, the prosecutor is essentially making law and thereby encroaching upon the law-making function of Congress. To cure this constitutional abuse …
Criminal Procedure - United States V. Buckland, Brian Feinberg
Criminal Procedure - United States V. Buckland, Brian Feinberg
Golden Gate University Law Review
In United States v. Buckland, the defendant appealed his drug conviction, arguing that the penalty provisions of the federal drug statute under which he was convicted and sentenced was facially unconstitutional. In light of the United States Supreme Court's ruling in Apprendi v. New Jersey, the primary issue was whether Calvin Wayne Buckland's sentence could be enhanced without the enhancement factor, in this case the quantity of the drugs he was responsible for, being determined by a jury. After rehearing the case en banc, the court concluded that the statute was not unconstitutional on its face. However, the court concluded …
United States V. Ruiz: Are Plea Agreements Conditioned On Brady Waivers Unconstitutional?, Shane Cahill
United States V. Ruiz: Are Plea Agreements Conditioned On Brady Waivers Unconstitutional?, Shane Cahill
Golden Gate University Law Review
In United States u. Ruiz, the Ninth Circuit ruled that such waivers are unconstitutional, violating the principle that defendants in criminal cases must knowingly and voluntarily plead guilty for the plea to be constitutionally valid. The purpose of this article is to discuss the law leading up to the Ninth Circuit's ruling in Ruiz, to examine the court's ruling itself, and to analyze the impact this decision could have on plea bargaining, an integral part of the criminal justice system. In Part II, this Note discusses Ruiz's facts and procedural history. Part III, section A outlines the prosecution's duty to …
Criminal Procedure - United States V. Nordby, Adriano Hrvatin
Criminal Procedure - United States V. Nordby, Adriano Hrvatin
Golden Gate University Law Review
The Nordby court held that a finding of drug quantity under 21 U.S.C. § 841(b) by the district court at sentencing pursuant to a preponderance of the evidence violated the Due Process Clause of the Fifth Amendment and the notice and jury-trial guarantees of the Sixth Amendment when drug quantity was used to increase the prescribed statutory maximum penalty. In requiring that drug quantity be submitted to the jury and proved beyond a reasonable doubt, the Ninth Circuit overruled nearly fifteen years of its own precedent.
From Playpens To Prisons: What The Gang Violence And Juvenile Crime Prevention Act Of 1998 Does To California's Juvenile Justice System And Reasons To Repeal It, Sara Raymond
Golden Gate University Law Review
This comment will explore the most significant changes that the Gang Violence and Juvenile Crime Prevention Act (GVJCPA) made to California's juvenile justice system. It will also discuss and propose alternative methods to curb juvenile crime. Part II will examine the juvenile justice system, including the context in which it was created, and juvenile crime across the country. It will then discuss how courts, legislatures, and local governments have confronted the changing nature of juvenile crime, focusing on efforts in California. Part II will also include an introduction to the GVJCPA. Part III will discuss the most important changes that …
Exercising The Right To Self-Representation In United States V. Farhad: Issues In Waiving A Criminal Defendant's Sixth Amendment Right To Counsel, Kenneth R. Sogabe
Exercising The Right To Self-Representation In United States V. Farhad: Issues In Waiving A Criminal Defendant's Sixth Amendment Right To Counsel, Kenneth R. Sogabe
Golden Gate University Law Review
Though all U.S. courts recognize the right to self-representation as a result of the Supreme Court's decision in Faretta, constitutional and procedural issues affect its effective implementation. This note explores the Sixth Amendment's right to waive counsel and its effect on a criminal defendant's Fifth Amendment right to receive a fair trial. The Ninth Circuit's decision in Farhad is critiqued on two issues: first, the failure to address standby counsel in sharing duties of representation with the defendant; and second, the court's failure to address Farhad's lack of access to the means of developing his case. Lastly, this note proposes …
Criminal Procedure - Macfarlane V. Walter, Jennifer Benesis
Criminal Procedure - Macfarlane V. Walter, Jennifer Benesis
Golden Gate University Law Review
In Macfarlane v. Walter, the United States Court of Appeals for the Ninth Circuit held that Washington state and county early-release credit systems for prisoners violate the equal protection clause of the United States Constitution. The early-release credit systems unconstitutionally provide fewer early-release credits to pre-trial detainees who cannot afford to post bail than to similarly-situated prisoners who post bail and serve their entire sentences after trial in state prison. The court held that awarding fewer good behavior credits for time served in county jail than for time served in state prison denies equal protection of the law to pre-trial …
Criminal Procedure - Parretti V. United States, Nedia L. Desouza
Criminal Procedure - Parretti V. United States, Nedia L. Desouza
Golden Gate University Law Review
In Parretti v. United States, the United States Court of Appeals for the Ninth Circuit, sitting en banc, addressed two constitutional claims: (1) whether Giancarlo Parretti's arrest pursuant to an Extradition Treaty with France violated the Fourth Amendment; and (2) whether his detention without bail prior to the French government's request for his extradition violated the Due Process Clause of the Fifth Amendment. The en banc court refused to address these issues, however, claiming that since Parretti fled the United States while his appeal was pending, he was a fugitive from justice. The en banc court therefore dismissed his appeal …
The Dilemma Of Difference: Race As A Sentencing Factor, Palcido G. Gomez
The Dilemma Of Difference: Race As A Sentencing Factor, Palcido G. Gomez
Golden Gate University Law Review
This paper addresses the dilemma of difference, specifically that associated with the race of an offender, as it affects criminal sentencing under the federal sentencing guidelines mandated by the Sentencing Reform Act. I argue that federal judges should continue to consider an offender's race as a mitigating factor when imposing criminal sentences, despite language to the contrary in the guidelines and the enabling statute.
Survey: Women And California Law
Survey: Women And California Law
Golden Gate University Law Review
No abstract provided.
Criminal Procedure - United States V. Roe: Child Abuse Warrants Departure From Sentencing Guidelines In Extraordinary Circumstances, Sara Vukson Winter
Criminal Procedure - United States V. Roe: Child Abuse Warrants Departure From Sentencing Guidelines In Extraordinary Circumstances, Sara Vukson Winter
Golden Gate University Law Review
No abstract provided.
Criminal Procedure - United States V. De Gross: The Ninth Circuit Expands Restrictions On A Criminal Defendant's Right To Exercise Peremptory Challenges, Eric K. Ferraro
Criminal Procedure - United States V. De Gross: The Ninth Circuit Expands Restrictions On A Criminal Defendant's Right To Exercise Peremptory Challenges, Eric K. Ferraro
Golden Gate University Law Review
No abstract provided.
Criminal Procedure - United States V. Restrepo: Uncharged Conduct Now Considered In The Ninth Circuit Under Federal Sentencing Guidelines, Matthew A. Goodin
Criminal Procedure - United States V. Restrepo: Uncharged Conduct Now Considered In The Ninth Circuit Under Federal Sentencing Guidelines, Matthew A. Goodin
Golden Gate University Law Review
In United States v. Restrepo, the Ninth Circuit, on a petition for rehearing, held that conduct of which the defendant was neither charged nor convicted could be taken into consideration at the defendant's sentencing hearing. The court reasoned that this interpretation is consistent with the clear intent of the United States Sentencing Commission and the Federal Sentencing Guidelines. The Ninth Circuit also held that when considering uncharged conduct at defendant's post-conviction sentencing hearing, a preponderance of the evidence standard is sufficient for due process concerns. When used to enhance a sentence, however, a more demanding interpretation of the standard is …
Criminal Procedure - Spain V. Rushen: Shackles Or Show Time? A Defendant's Right To See And Be Seen, Randall E. Tuskowski
Criminal Procedure - Spain V. Rushen: Shackles Or Show Time? A Defendant's Right To See And Be Seen, Randall E. Tuskowski
Golden Gate University Law Review
No abstract provided.
Survey: Women And California Law, Linda C. Kramer, T. A. Graudin, Donna Cobe Beekman, Kathy A. Alfieri
Survey: Women And California Law, Linda C. Kramer, T. A. Graudin, Donna Cobe Beekman, Kathy A. Alfieri
Golden Gate University Law Review
This survey of California law, a regular feature of the Women's Law Forum, summarizes recent California Supreme Court and Court of Appeal decisions of special importance to women. A briefanalysis of the issues pertinent to women raised in each case is provided.
Criminal Law & Procedure, Samuel Santistevan, Douglas Buchanan
Criminal Law & Procedure, Samuel Santistevan, Douglas Buchanan
Golden Gate University Law Review
No abstract provided.
Panel: Sentencing
Golden Gate University Law Review
Of all the decisions facing trial judges, those surrounding sentencing are the most difficult. Public opinion focuses on the sentencing of criminal defendants - particularly those defendants whose trials have received media attention - and public outrage results from what is perceived as a "light" sentence. Judges are called upon to be "tougher" on criminals, and women judges in particular are perceived as being too lenient. The NAWJ, in recognition of the difficulty faced by all judges in the area of sentencing, presented the panel on Sentencing to share and discuss viewpoints on this issue.
Criminal Law & Procedure, Patricia A. Seitas, C. Elliot Kessler, Steven Booska, Mark F. Liscio
Criminal Law & Procedure, Patricia A. Seitas, C. Elliot Kessler, Steven Booska, Mark F. Liscio
Golden Gate University Law Review
No abstract provided.
Survey: Women And California Law, Elaine Booras
Survey: Women And California Law, Elaine Booras
Golden Gate University Law Review
No abstract provided.
The Crime Of Criminal Sentencing Based On Rehabilitation, Louis R. Lopez
The Crime Of Criminal Sentencing Based On Rehabilitation, Louis R. Lopez
Golden Gate University Law Review
A lively debate began in the late 1970's on the topic of criminal sentencing. A major attack was launched on the indeterminate sentence and its companion concepts of probation and parole. Changes in state law on indeterminate sentencing were made but some writers rose to defend the indeterminate sentence and its justification - the rehabilitative theory of punishment. It is not clear how long and intense the struggle will be before the rehabilitative (a.k.a. reform, treatment) theory is put to rest or at least put in proper perspective; it should exist not as a basis for a sentencing plan but …
Criminal Law And Procedure, Patricia A. Seitas, Robinson R. Ng, Jill A. Schwendinger, Bonita L. Marmor
Criminal Law And Procedure, Patricia A. Seitas, Robinson R. Ng, Jill A. Schwendinger, Bonita L. Marmor
Golden Gate University Law Review
No abstract provided.
New Developments In 2001 Chinese Criminal Procedure Law, Xia Jinwen
New Developments In 2001 Chinese Criminal Procedure Law, Xia Jinwen
Annual Survey of International & Comparative Law
On March 17,1996, the 8th National People's Congress passed a new criminal procedure law during its 4th conference, based on an earlier code promulgated on January 1, 1980. In general, the new Criminal Procedure Code introduced significant developments in connection with the following aspects of the law: presumption of innocence, coercive measures, abolition of exemption from prosecution, criminal defenses, and the reformation of judicial proceedings.
Criminal Law And Procedure, Lee R. Roper, John Douglas Moore, Paige L. Wickland, Charles Ferrera
Criminal Law And Procedure, Lee R. Roper, John Douglas Moore, Paige L. Wickland, Charles Ferrera
Golden Gate University Law Review
No abstract provided.
From Inquisitorial To Accusatorial? Pro-Accusatorial Evidential Reforms On The Roc Criminal Procedure Code, Ming-Woei Chang
From Inquisitorial To Accusatorial? Pro-Accusatorial Evidential Reforms On The Roc Criminal Procedure Code, Ming-Woei Chang
Theses and Dissertations
Over the past decades, the ROC criminal justice system has long been criticized for its insufficient human rights protection, especially for the alleged criminal offenders. From 1947 to 1987, the ROC enforced martial law and was in a state of siege. In this era of martial law rule, ordinary citizens in the ROC jurisdiction lived for four decades with little anticipation of any recognition of their inherent human rights, not to mention the rights of the accused. To some extent, it was considered a privilege for an ordinary citizen to claim any right to an impartial trial. The guarantee of …
Confessions And The Right To Counsel: Reflections On Recent Changes In Turkish Criminal Procedure, Robert K. Calhoun
Confessions And The Right To Counsel: Reflections On Recent Changes In Turkish Criminal Procedure, Robert K. Calhoun
Publications
No abstract provided.