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Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe

Faculty Scholarship

This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

Application Of Forensics Technology In Identification Of A Person, Vyacheslav Tulskikh

Vyacheslav Tulskikh

SUMMARY Terrorism is the plague of the 21st century. In the man-made world of today, with its nuclear power plants, subways, airplanes, with accumulation of large numbers of people in one and the same place, terrorism (terror is Latin for fear and horror) poses serious threat not only to security of a certain state, but also to entire world community. Under these conditions, the measures to be taken against terrorists, including preventive measures, should ever be effective. In the article there have been considered various methods of identification of a person, including iris and retina recognition, fingerprint identification, hand and …

Retrying The Acquitted In England Part Iii: Prosecution Appeals Against Judges' Rulings Of "No Case To Answer", David S. Rudstein

San Diego International Law Journal

The Order in Council permitting the prosecution appeal of "Mo" Courtney's acquittal and allowing him to be retried for the same offense of which he had previously been acquitted stems from the Criminal Justice Act 2003. That Act, which applies in England and Wales, grants the government the right to appeal certain rulings by the trial judge in criminal prosecutions on an indictment, including a ruling that there is no case to answer, i.e., a directed verdict of acquittal, and if the appeal is successful, allows the reviewing court to order that the acquitted defendant?s trial be resumed or that …

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

Counting Heads: Does The Existence Of A National Consensus Give Rise To A Substantive-Due-Process Right To A Particular Criminal Procedure?, Carrie Leonetti

Carrie Leonetti

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether …

Funding Gideon's Promise By Viewing Excessive Caseloads As Conflicts Of Interests, Heidi R. Anderson

Heidi R Anderson

Some states recently have attempted to legislate around a defendant’s constitutional right to effective assistance of counsel via a novel two-step method. Step one is to allocate insufficient funds for public defense, which results in excessive caseloads for public defenders. Sadly, that step is nothing new. Step two—the one that has slipped by without sufficient notice or criticism—is to bar a public defender from withdrawing from representation based on his excessive caseload. Ultimately, this statutory two-step further entrenches the systematic deprivation of defendants’ Sixth Amendment rights to effective assistance.

In this article, I urge courts to “constitutionalize” the excessive caseload …

Overcriminalization: Is There A Problem To Solve?, Roger Fairfax

Presentations

No abstract provided.

Introduction: Appreciating Bill Stuntz, Michael Klarman, David A. Skeel Jr., Carol Steiker

All Faculty Scholarship

The past several decades have seen a renaissance in criminal procedure as a cutting edge discipline, and as one inseparably linked to substantive criminal law. The renaissance can be traced in no small part to the work of a single scholar: William Stuntz. This essay is the introductory chapter to The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz (forthcoming, Cambridge University Press, 2012), which brings together twelve leading American criminal justice scholars whose own writings have been profoundly influenced by Stuntz and his work. After briefly chronicling the arc of Stuntz’s career, the essay provides …

The Crime Victim’S "Right" To A Criminal Prosecution: A Proposed Model Statute For The Governance Of Private Criminal Prosecution, Peter Davis

Peter L. Davis

The thesis of this article is that the public prosecutor should to have a monopoly on criminal prosecutions; some supplementary system of private criminal prosecution should be available. Two such systems, or models, currently exist in New York. The first model, available statewide, theoretically allows a complainant to initiate a non-felony criminal prosecution without any screening by a prosecutor or judge. This system is unwise, unworkable and illusory because it obscures the exercise of judicial discretion and focuses the court’s attention on the wrong issues, usually precluding the crime victim’s complaint. The second model, limited by statute to New York …

Good Guys, Bad Guys -- And Miranda, Tamar R. Birckhead

Tamar R Birckhead

This op-ed argues that we as a society must get beyond our single-minded focus on the Miranda warnings and find a better way to elicit accurate information from suspects while lowering the risk of false confessions.

Collateral Consequences, Genetic Surveillance, And The New Biopolitics Of Race, Dorothy E. Roberts

All Faculty Scholarship

This Article is part of a Howard Law Journal Symposium on “Collateral Consequences: Who Really Pays the Price for Criminal Justice?,” as well as my larger book project, Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-First Century (The New Press, 2011). It considers state and federal government expansion of genetic surveillance as a collateral consequence of a criminal record in the context of a new biopolitics of race in America. Part I reviews the expansion of DNA data banking by states and the federal government, extending the collateral impact of a criminal record—in the form …

State Constitutionalism: State-Court Deference Or Dissonance?, Arthur Leavens

Faculty Scholarship

This Article focuses on the debate concerning state constitutional expansion of criminal-procedure protections. It examines two such rights: (1) the protection against unreasonable searches and seizures; and (2) the right to the assistance of counsel in defending a criminal case. Each of these rights is embodied in both the federal and most, if not all, state constitutions. Each right is thus doubly applicable to the states, first, through the federal version by virtue of its incorporation into the Fourteenth Amendment’s due process protection and, second, through the state constitution’s version of the cognate right. So focused, the question is, what …

Originalism As An Anchor For The Sixth Amendment, Jeffrey L. Fisher

Jeffrey L Fisher

Originalism is sometimes criticized as merely a means to justify conservative results. And cases do indeed exist in which the Supreme Court has divided along liberal-conservative lines, and conservatives have played originalism as a purported trump card. Last Term’s decision in District of Columbia v. Heller, interpreting the Second Amendment as including an individual right to bear arms, is a recent example.

When it comes to criminal procedure, however, things are not so simple. This Essay examines two lines of cases: first, those involving the Court's reinvigoration of the Sixth Amendment right to jury trial, and second, those involving the …

Memory And Punishment, O. Carter Snead

Journal Articles

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered - by the offender, by the sentencing authority, …

Representational Competence: Defining The Limits Of The Right To Self-Representation At Trial, E. Lea Johnston

UF Law Faculty Publications

In 2008, the Supreme Court held that the Sixth Amendment permits a trial court to impose a higher competence standard for self-representation than to stand trial. The Court declined to delineate a permissible representational competence standard but indicated that findings of incompetence based on a lack of decisionmaking ability would withstand constitutional scrutiny. To date, no court or commentator has suggested a comprehensive competence standard to address the particular decisional context of self-representation at trial. Conceptualizing self-representation as an exercise in problem solving, this Article draws upon social problem-solving theory to identify abilities necessary for autonomous decisionmaking. The Article develops …

Notes On Borrowing And Convergence, Robert Tsai, Nelson Tebbe

Articles in Law Reviews & Other Academic Journals

his is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Delay In Process, Denial Of Justice: The Jurisprudence And Empirics Of Speedy Trials In Comparative Perspective, Jayanth K. Krishnan, C. Raj Kumar

Articles by Maurer Faculty

Criminal law scholars regularly maintain that American prisons are overcrowded and that defendants in custody wait long periods of time before having their cases brought to trial. A similar refrain is made of the penal process in India – the world’s largest democracy, an ally of the United States, and a country with a judiciary that has drawn upon American criminal procedure law. In fact, the situation in India is thought to be much worse. Accounts of prisoners languishing behind bars for several years – and sometimes decades – awaiting their day in court are not uncommon. And many Indian …

"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain

All Faculty Scholarship

A three-year-old child, while being bathed by her babysitter, innocently mentions that her “pee-pee” hurts. When the babysitter asks the child how she hurt it, she says, “Uncle Ernie (her mother’s boyfriend) told me not to tell.” A subsequent medical examination reveals that the child has gonorrhea, a sexually transmitted disease.

By the time of trial, the child is four and-a-half-years old. When questioned by the trial judge, she cannot explain to the judge’s satisfaction, “the difference between the truth and a lie.” Moreover, she has no long term memory of the incident. The judge rules the child incompetent to …

Nothing To Hide: The False Tradeoff Between Privacy And Security (Introduction), Daniel J. Solove

GW Law Faculty Publications & Other Works

"If you've got nothing to hide," many people say, "you shouldn't worry about government surveillance." Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so.

In addition to attacking the "Nothing-to Hide Argument," Solove exposes the fallacies of pro-security arguments that have often been used to justify government surveillance and data mining. These arguments - such as the "Luddite Argument,"the "War-Powers Argument," the "All-or-Nothing …

Tangled Up In Law: The Jurisprudence Of Bob Dylan, Michael L. Perlin

Articles & Chapters

A a careful examination of Bob Dylan’s lyrics reveals a writer - a scholar - with a well-developed jurisprudence, ranging over a broad array of topics that relate to civil and criminal law, public and private law. His lyrics reflect the work of a thinker who takes “the law” seriously in multiple iterations - the role of lawyers, the role of judges, the disparities between the ways the law treats the rich and the poor, the inequality of the criminal and civil justice systems, the corruption of government, the police, and the judiciary, and more. In this paper, I seek …

The Fourth Amendment Rights Of Children At Home: When Parental Authority Goes Too Far, Kristin N. Henning

Georgetown Law Faculty Publications and Other Works

Although it is virtually undisputed that children have some Fourth Amendment rights independent of their parents, it is equally clear that youth generally receive less constitutional protection than adults. In a search for continuity and coherence in Fourth Amendment jurisprudence involving minors, Professor Henning identifies three guiding principles—context, parental authority, and the minor’s capacity—that weave together children’s rights cases. She argues that parental authority too often prevails over children’s rights, even when context and demonstrated capacity would support affirmation of those rights. Context involves both the physical setting in which Fourth Amendment protections are sought and the nature of the …

Plea Bargaining, Discovery, And The Intractable Problem Of Impeachment Disclosures, R. Michael Cassidy

R. Michael Cassidy

In a criminal justice system where guilty pleas are the norm and trials the rare exception, the issue of how much discovery a defendant is entitled to before allocution has immense significance. This article examines the scope of a prosecutor’s obligation to disclose impeachment information before a guilty plea. This question has polarized the criminal bar and bedeviled the academic community since the Supreme Court’s controversial decision in United States v. Ruiz (2002). A critical feature of the debate has been the enduring schism between a prosecutor’s legal and ethical obligations – a gulf that the American Bar Association recently …