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2001

Criminal Procedure

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Full-Text Articles in Law

The Pathological Politics Of Criminal Law, William J. Stuntz Dec 2001

The Pathological Politics Of Criminal Law, William J. Stuntz

Michigan Law Review

Substantive criminal law defines the conduct that the state punishes. Or does it? If the answer is yes, it should be possible, by reading criminal codes (perhaps with a few case annotations thrown in), to tell what conduct will land you in prison. Most discussions of criminal law, whether in law reviews, law school classrooms, or the popular press, proceed on the premise that the answer is yes. Law reform movements regularly seek to broaden or narrow the scope of some set of criminal liability rules, always on the assumption that by doing so they will broaden or narrow the …

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A Hybrid Approach To The Use Of Deliberate Ignorance In Conspiracy Cases, Jessica A. Kozlov-Davis Nov 2001

A Hybrid Approach To The Use Of Deliberate Ignorance In Conspiracy Cases, Jessica A. Kozlov-Davis

Michigan Law Review

When hunted, the ostrich is said to run a certain distance and then thrust its head into the sand, thinking, because it cannot see, that it cannot be seen by the hunters. Legal parlance therefore refers to the "ostrich instruction," used when a defendant acts with the awareness of a high probability of the existence of an incriminating fact, but remains deliberately ignorant as to whether the fact actually exists, hoping his ignorance will maintain his innocence. The defendant is like the ostrich - he thinks that if he does not actually see the facts, even though he knows they …

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The Limits Of Localism, Richard C. Schragger Nov 2001

The Limits Of Localism, Richard C. Schragger

Michigan Law Review

In Chicago v. Morales, the Supreme Court struck down Chicago's Gang Congregation Ordinance, which barred "criminal street gang members from loitering with one another or with other persons in any public place." The stated purpose of the ordinance was to wrest control of public areas from gang members who, simply by their presence, intimidated the public and established control over identifiable areas of the city, namely certain inner-city streets, sidewalks, and corners. The ordinance required that police officers determine whether at least one of two or more persons present in a public place were members of a criminal street gang …

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The Gender Gap: Revealing Inequities In Admission Of Social Science Evidence In Criminal Cases, Janet C. Hoeffel Oct 2001

The Gender Gap: Revealing Inequities In Admission Of Social Science Evidence In Criminal Cases, Janet C. Hoeffel

University of Arkansas at Little Rock Law Review

No abstract provided.

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Constitutional Theory For Criminal Procedure: Dickerson, Miranda, And The Continuing Quest For Broad-But-Shallow, Donald A. Dripps Oct 2001

Constitutional Theory For Criminal Procedure: Dickerson, Miranda, And The Continuing Quest For Broad-But-Shallow, Donald A. Dripps

William & Mary Law Review

No abstract provided.

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"Be Careful What You Ask For": The 2000 Presidential Election, The U.S. Supreme Court, And The Law Of Criminal Procedure, Craig M. Bradley, Joseph L. Hoffmann Oct 2001

"Be Careful What You Ask For": The 2000 Presidential Election, The U.S. Supreme Court, And The Law Of Criminal Procedure, Craig M. Bradley, Joseph L. Hoffmann

Indiana Law Journal

No abstract provided.

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When Constitutional Worlds Colide: Resurrecting The Framers' Bill Of Rights And Criminal Procedure, George C. Thomas Iii Oct 2001

When Constitutional Worlds Colide: Resurrecting The Framers' Bill Of Rights And Criminal Procedure, George C. Thomas Iii

Michigan Law Review

For two hundred years, the Supreme Court has been interpreting the Bill of Rights. Imagine Chief Justice John Marshall sitting in the dim, narrow Supreme Court chambers, pondering the interpretation of the Sixth Amendment right to compulsory process in United States v. Burr. Aaron Burr was charged with treason for planning to invade the Louisiana Territory and create a separate government there. To help prepare his defense, Burr wanted to see a letter written by General James Wilkinson to President Jefferson. In ruling on Burr's motion to compel disclosure, Marshall departed from the literal language of the Sixth Amendment - …

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When The Heck Does This Claim Accrue? Heck V. Humphrey's Footnote Seven And § 1983 Damages Suits For Illegal Search And Seizure, John Stanfield Buford Sep 2001

When The Heck Does This Claim Accrue? Heck V. Humphrey's Footnote Seven And § 1983 Damages Suits For Illegal Search And Seizure, John Stanfield Buford

Washington and Lee Law Review

No abstract provided.

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The Lawyer's Role When The Defendant Seeks Death, Ross E. Eisenberg Sep 2001

The Lawyer's Role When The Defendant Seeks Death, Ross E. Eisenberg

Capital Defense Journal

No abstract provided.

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Va. Code Ann. S 19.2-270.4:1 (Michie Supp. 2001) Va. Code Ann. Ss 19.2-237.1 To 19.2-237.6 (Michie Supp. 2001) Sep 2001

Va. Code Ann. S 19.2-270.4:1 (Michie Supp. 2001) Va. Code Ann. Ss 19.2-237.1 To 19.2-237.6 (Michie Supp. 2001)

Capital Defense Journal

No abstract provided.

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Virginia Capital Case Clearinghouse Verdict Forms, Second Edition Sep 2001

Virginia Capital Case Clearinghouse Verdict Forms, Second Edition

Capital Defense Journal

No abstract provided.

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Using Dna Profiles To Obtain "John Doe" Arrest Warrants And Indictments, Frank B. Ulmer Sep 2001

Using Dna Profiles To Obtain "John Doe" Arrest Warrants And Indictments, Frank B. Ulmer

Washington and Lee Law Review

No abstract provided.

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Constitutional Criminal Procedure, James P. Fleissner, Sarah B. Mabery, Jeanne L. Wiggins Jul 2001

Constitutional Criminal Procedure, James P. Fleissner, Sarah B. Mabery, Jeanne L. Wiggins

Mercer Law Review

This Article surveys noteworthy 2000 decisions of the United States Court of Appeals for the Eleventh Circuit in the field commonly known as Constitutional Criminal Procedure. As in past years, the survey focuses on significant decisions concerning the Fourth Amendment's protection against unreasonable searches and seizures; the Fifth Amendment's privilege against self-incrimination, prohibition against double jeopardy, and guarantees of due process and grand jury screening; and the Sixth Amendment's procedural protections, including the right to counsel and the right of confrontation. Of course, most of these rights, with few exceptions, such as the right to have charges approved by a …

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Federal Sentencing Guidelines, Rosemary T. Cakmis, James T. Skuthan Jul 2001

Federal Sentencing Guidelines, Rosemary T. Cakmis, James T. Skuthan

Mercer Law Review

Compared to the previous two years, the Eleventh Circuit issued relatively few published opinions relating to the United States Sentencing Guidelines ("U.S.S.G.") during 2000. This decline could be the result of fewer guidelines cases being presented to the Eleventh Circuit or more guideline cases being disposed of in unpublished opinions. An equally likely explanation, however, may be that the court has been inundated with cases involving the application of the landmark United States Supreme Court decision in Apprendi v. New Jersey. Courts across the nation have been grappling with the ripple effects of the potentially far reaching applications of …

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Apprendi V. New Jersey: Should Any Factual Determination Authorizing An Increase In A Criminal Defendant's Sentence Be Proven To A Jury Beyond A Reasonable Doubt, Jason Ferguson Jul 2001

Apprendi V. New Jersey: Should Any Factual Determination Authorizing An Increase In A Criminal Defendant's Sentence Be Proven To A Jury Beyond A Reasonable Doubt, Jason Ferguson

Mercer Law Review

In Apprendi v. New Jersey, the United States Supreme Court held, with the exception of the fact of prior criminal convictions, that any factual determination that authorizes an increased sentence beyond the statutory maximum must be proven to a jury beyond a reasonable doubt.

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The Inherent Constitutionality Of The Police Use Of Deadly Force To Stop Dangerous Pursuits, Michael Douglas Owens Jul 2001

The Inherent Constitutionality Of The Police Use Of Deadly Force To Stop Dangerous Pursuits, Michael Douglas Owens

Mercer Law Review

Every day in our country, police agencies pursue criminal suspects who are unlawfully attempling to elude them. Reality-based television shows, such as Cops and the Police Videos series on the Fox Network, bring home to the public some measure of the adrenaline-producing excitement that automobile pursuits engender. Rarely, however, does one see the tragedy that often results from these pursuits. While reliable nationwide statistics on police pursuits are not available, various studies depict the rate of accidents as ranging from twenty-nine percent to seventy percent, with a rate of injury ranging from eleven percent to twenty-seven percent. Injuries and deaths …

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Mandatory Minimum Sentences And Women With Disabilities, Fiona Sampson Apr 2001

Mandatory Minimum Sentences And Women With Disabilities, Fiona Sampson

Osgoode Hall Law Journal

This article examines the issue of mandatory minimum sentencing from the unique perspective of women with disabilities. Concerns about the discriminatory application of mandatory minimum sentences are outlined and analyzed from a gendered disability perspective, as are concerns about the devaluation of the lives of persons with disabilities through the support of reduced sentences for those convicted of murdering persons with disabilities. This examination makes it clear that the different concerns of women with disabilities are difficult to reconcile, as they mandate contradictory positions with respect to the possible abolition of the sentencing practice. The challenges inherent in the development …

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Mandatory Minimum Sentences Of Imprisonment: Exploring The Consequences For The Sentencing Process, Julian V. Roberts Apr 2001

Mandatory Minimum Sentences Of Imprisonment: Exploring The Consequences For The Sentencing Process, Julian V. Roberts

Osgoode Hall Law Journal

In this article, the author discusses the nature and consequences of the mandatory sentences of imprisonment created by Bill C-63 in 1995. These mandatory sentences constitute the most comprehensive collection of mandatory minima in Canadian history, and will affect significant numbers of offenders. Unlike most mandatory minima created in other jurisdictions such as Australia, England, and Wales, the legislation that created the firearms offence minima offer no provision to be invoked in exceptional cases. In this article, the author addresses the effect that these new statutory minima am likely to have on sentencing patterns It is argued that they should …

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The Political Attractiveness Of Mandatory Minimum Sentences, Anthony N. Doob, Carla Cesaroni Apr 2001

The Political Attractiveness Of Mandatory Minimum Sentences, Anthony N. Doob, Carla Cesaroni

Osgoode Hall Law Journal

This article addresses the question of why Canada still has mandatory minimum sentences despite inquiries by a number of commissions that suggest abolition. It suggests that politicians and judges alike not only promote mandatory minimum policies, but also speak about them in much the same way - as a way of fighting crime. Though the evidence is clear that mandatory minimum sentences are not an effective crime-control strategy, and actually disrupt the sensible operation of the justice system, it is apparent that the deterrence message they deliver is still functional for politicians and is rarely challenged by judges.

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Disarming Canadians, And Arming Them With Tolerance: Banning Firearms And Minimum Sentences To Control Violent Crime--An Essay On An Apparent Contradiction, Helene Dumont Apr 2001

Disarming Canadians, And Arming Them With Tolerance: Banning Firearms And Minimum Sentences To Control Violent Crime--An Essay On An Apparent Contradiction, Helene Dumont

Osgoode Hall Law Journal

In an article published in French in 1997, the author offered reflections on feminism and criminal law that would allow for a better control of violent crime, without Parliament having to resort to excessively severe sentences. In this respect, she argued that there was no contradiction in supporting the radical ban of firearms in Canada, while opposing a minimum sentence of four years under the Firearms Act, which currently affects approximately ten serious Criminal Code offences. After setting out her position in favour of the "disarmament" of Canadians, the author argued that minimum sentences of four years were unconstitutional. Such …

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Searching For Smith: The Constitutionality Of Mandatory Sentences, Kent Roach Apr 2001

Searching For Smith: The Constitutionality Of Mandatory Sentences, Kent Roach

Osgoode Hall Law Journal

The jurisprudence of the Supreme Court of Canada on the constitutionality of mandatory minimum sentences, from R. v. Smith to R. v. Latimer, is reviewed and assessed in light of relevant developments in constitutional law and sentencing. These include the Supreme Courts increasing interest in constitutional minimalism and corresponding reluctance to rely on hypothetical offenders and facial declarations of invalidity. The manner in which the Court's increasing concern for crime victims and fault levels has been used to justify upholding mandatory sentences is examined. The author also relates this jurisprudence to trends in sentencing, including an increasing acceptance of mandatory …

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The Death Penalty, Mandatory Prison Sentences, And The Eighth Amendment's Rule Against Cruel And Unusual Punishments, Jamie Cameron Apr 2001

The Death Penalty, Mandatory Prison Sentences, And The Eighth Amendment's Rule Against Cruel And Unusual Punishments, Jamie Cameron

Osgoode Hall Law Journal

The text of section 12 of the Canadian Charter of Rights and Freedoms and the Eighth Amendment to the United States Constitution prohibit cruel and unusual punishment in language that is similar but not identical. Still, in considering constitutional restrictions on punishment, the deviations of the Supreme Court both focus on the concept of gross disproportionality between the offence committed and the state’s response. Despite the appearance of similarity, this article maintains that differences in the American law of sentencing explain why Canada ought not follow or adopt the United States approach to minimum sentences.

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Mandatory Minimum Prison Sentencing And Systemic Racism, Faizal R. Mirza Apr 2001

Mandatory Minimum Prison Sentencing And Systemic Racism, Faizal R. Mirza

Osgoode Hall Law Journal

This article discusses the relationship between racist policing, the exercise of prosecutorial discretion, and the disproportionate imposition of mandatory prison sentences on Black-Canadians It argues that the retention and expansion of mandatory prison sentences for serious offences will serve as a powerful means to perpetuate systemic racism in the criminal justice system. Reporting and applying surveys on systemic racism in the criminal justice system, the article sets out to demonstrate that mandatory prison sentences enhance the quasi-judicial role of prosecutors, providing Crown attorneys with greater leverage to convict a disproportionate number of Black persons. In addition, it argues that if …

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Latimer: Something Ominous Is Happening In The World Of Disabled People, H. Archibald Kaiser Apr 2001

Latimer: Something Ominous Is Happening In The World Of Disabled People, H. Archibald Kaiser

Osgoode Hall Law Journal

Although the Latimer decision breaks no new substantive ground, it has created a furore over the application of the mandatory minimum sentence for murder. This article maintains that, despite the pre-existing need to examine the complex range of issues in mandatory sentences, the Latimer case provides a wholly inapposite base for revisiting this sanction. The Supreme Court of Canada properly rejected the accused's attempt to invoke the defence of necessity, as well as some procedural contentions. The Court also determined that the mandatory minimum sentence for murder was not cruel and unusual punishment as applied to the accused. The reaction …

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No-Merit Briefs Undermine The Adversary Process In Criminal Appeals, Randall L. Hodgkinson Apr 2001

No-Merit Briefs Undermine The Adversary Process In Criminal Appeals, Randall L. Hodgkinson

The Journal of Appellate Practice and Process

Appellate defense attorneys face a dilemma when faced with an appeal that has no obvious merit. No-merit briefs allow an attorney to forego an appeal when there is no apparent merit. In cases involving direct appeals from conviction, the cost of abandonment of the client far outweighs the benefits.

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Make Way For The Aba: Smith V. Robbins Clears A Path For Anders Alternatives, James E. Duggan, Andrew W. Moeller Apr 2001

Make Way For The Aba: Smith V. Robbins Clears A Path For Anders Alternatives, James E. Duggan, Andrew W. Moeller

The Journal of Appellate Practice and Process

Indigents appealing criminal convictions are entitled to court-appointed counsel. The American Bar Association suggests a standard for providing the required representation. This standard is known as the Idaho Rule.

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When Reasonable Jurists Could Disagree: The Fifth Circuit's Misapplication Of The Frivolousness Standard, Brent E. Newton Apr 2001

When Reasonable Jurists Could Disagree: The Fifth Circuit's Misapplication Of The Frivolousness Standard, Brent E. Newton

The Journal of Appellate Practice and Process

A criminal appeal that is deemed frivolous is summarily dismissed without further judicial consideration. The frequency of findings of frivolousness in the Fifth Circuit has caused concern among appellate practitioners and has even led to sanctions against practitioners. This article analyzes the Fifth Circuit’s frivolousness standard.

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Criminal Law—Statutes Of Limitation On Sexual Assault Crimes: Has The Availability Of Dna Evidence Rendered Them Obsolete, Amy Dunn Apr 2001

Criminal Law—Statutes Of Limitation On Sexual Assault Crimes: Has The Availability Of Dna Evidence Rendered Them Obsolete, Amy Dunn

University of Arkansas at Little Rock Law Review

No abstract provided.

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Distorting The Prosecution Process: Informers, Mandatory Minimum Sentences, And Wrongful Convictions, Dianne L. Martin Apr 2001

Distorting The Prosecution Process: Informers, Mandatory Minimum Sentences, And Wrongful Convictions, Dianne L. Martin

Osgoode Hall Law Journal

As the use of mandatory minimum sentences becomes more common in Canada, it is important to consider a range of potential consequences that are neither intended nor anticipated. This article considers the implications of mandatory minimum sentences in contributing to wrongful convictions. It considers the impact of these sentences on two significant processes in the criminal justice system, plea bargaining and the development of informers, and argues that both processes are vulnerable to distortions. These distortions, which include the wrongful conviction of innocent people, can be exacerbated by the threat of mandatory minimum prison sentences. In the case of plea …

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Aboriginal Peoples And Mandatory Sentencing, Larry N. Chartrand Apr 2001

Aboriginal Peoples And Mandatory Sentencing, Larry N. Chartrand

Osgoode Hall Law Journal

The author examines the impact of mandatory minimum sentencing on Aboriginal peoples in Canada. Emphasis is placed on the recently enacted mandatory minimum sentencing provisions for firearms offenses. The author argues that the enactment of such provisions are inconsistent with Parliament's objectives as reflected in section 718.2(e) of the Criminal Code which requires sentencing judges to pay "particular attention to the circumstances of Aboriginal offenders." In addition, the author explores preliminary arguments to support a finding that mandatory minimum sentences applied to Aboriginal offenders violate sections 12 and 15 of the Charter.

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