Criminal Procedure Commons^™

Prosecutorial Discretion In The Shadow Of Advisory Guidelines And Mandatory Minimums, Michael A. Simons

Faculty Publications

(Excerpt)

Imagine the following rather run-of-the-mill crime spree:

Three young men, ranging in age from eighteen to twenty and without significant criminal histories, get together to rob a convenience store in New York City. They take an unloaded an inoperable gun, go into the store, point the gun at the clerk behind the counter, and take a few hundred dollars from the cash register. Flush with success, they decide to do it again, this time at a jewelry store down the block. One of the young men points the unloaded gun at the store employees, another stands guard by the …

Ensuring The Ethical Representation Of Clients In The Face Of Excessive Caseloads, Peter A. Joy

Scholarship@WashULaw

The right of one charged with [a] crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impar-tial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with [a] crime has to face his accusers without a lawyer to assist him.

You can't give me too many cases, too many clients, …

Litigation Strategies For Dealing With The Indigent Defense Crisis, Eve Brensike Primus

Articles

The indigent defense delivery system in the United States is in a state of crisis. Public defenders routinely handle well over 1,000 cases a year, more than three times the number of cases that the American Bar Association says one attorney can handle effectively. As a result, many defendants sit in jail for months before even speaking to their court-appointed lawyers. And when defendants do meet their attorneys, they are often disappointed to learn that these lawyers are too overwhelmed to provide adequate representation. With public defenders or assigned counsel representing more than 80% of criminal defendants nationwide, the indigent …

Lessons Learned From The Evolution Of Evolving Standards, Corinna Barrett Lain

Law Faculty Publications

In the discussion that follows, I explore the evolution of the "evolving standards" doctrine to make a point about its legitimacy and Supreme Court decisionmaking under the Cruel and Unusual Punishments Clause more generally. In Part I, I trace the origins of the doctrine to its present state. In Part II, I turn to lessons learned from the evolution of "evolving standards," questioning the textual defense of the doctrine and the constraining power of law itself. I conclude that while the "evolving standards" doctrine is problematic, it is not the crux of the problem. Supreme Court decisionmaking in the death …

The Death Of Suspicion, Fabio Arcila Jr.

Scholarly Works

This article argues that neither the presumptive warrant requirement nor the presumptive suspicion requirement are correct. Though representative of the common law, they do not reflect the totality of our historic experience, which includes civil search practices. More importantly, modern developments - such as urban life and technological advancements, the rise of the regulatory state, and security concerns post-9/11 - have sufficiently changed circumstances so that these rules are not just unworkable now, they are demonstrably wrong. Worst of all, adhering to them has prevented us from formulating a more coherent Fourth Amendment jurisprudence. A new paradigm confronts us, in …

Meditaciones Postmodernas Sobre El Castigo: Acerca De Los Límites De La Razón Y De Las Virtudes De La Aleatoriedad (Una Polémica Y Un Manifiesto Para El Siglo Xxi), Bernard E. Harcourt

Faculty Scholarship

In Spanish
Durante la Modernidad, el discurso sobre la pena ha girado circularmente en torno a tres grupos de interrogantes. El primero, surgido de la propia Ilustración, preguntaba: ¿En qué basa el soberano su derecho de penar? Nietzsche con mayor determinación, pero también otros, argumentaron que la propia pregunta implicaba ya su respuesta. Con el nacimiento de las ciencias sociales, este escepticismo hizo surgir un segundo conjunto de interrogantes: ¿Cuál es, entonces, la verdadera función de la pena? ¿Qué es lo que hacemos cuando penamos? Una serie de críticas ulteriores – de metanarrativas, funcionalistas o de objetividad científica – debilitaron …

Carr V. United States: Brief Of Law Professors As Amici Curiae In Support Of Petitioner, J. J. Prescott

Appellate Briefs

Amici curiae are law professors who specialize in constitutional law, substantive criminal law, and criminal procedure. As law professors, amici have a particular interest in ensuring that the Ex Post Facto Clause of Article I of the United States Constitution is enforced in a manner consistent with its core historic goals and principles. The judgment of the U.S. Court of Appeals for the Seventh Circuit violated these goals and principles, and it prescribed a peculiar new test for application of the Clause that significantly deviates from this Court's settled jurisprudence.

In this brief, amici explore the critical structural role of …

Mapp V. Ohio'S Unsung Hero: The Suppression Hearing As Morality Play, Scott E. Sundby

Chicago-Kent Law Review

The exclusionary rule is back under the judicial magnifying glass. Recent opinions, most notably by Justice Scalia, have sparked speculation that the Roberts Court is inclined to overrule Mapp v. Ohio and send Fourth Amendment disputes back to the realm of civil suits and police disciplinary actions. As the Court's rulings have made clear, any reevaluation of the exclusionary rule's future will be conducted under the now familiar rubric of whether the rule's "benefit" of deterring police misbehavior outweighs the "cost" of lost evidence and convictions.

This essay argues that if any such reevaluation does occur, the Court must take …

The Irrelevancy Of The Fourth Amendment In The Roberts Court, Thomas K. Clancy

Chicago-Kent Law Review

Since John Roberts Jr. became Chief Justice of the Supreme Court, there has been a measurable decline in the number of cases addressing Fourth Amendment questions. This article examines the reasons for that decline and predicts the substantial elimination of Fourth Amendment litigation in the Roberts Court. The prediction is based on several premises, including the lack of interest of the Justices on the Court concerning search and seizures principles and two significant recent cases, Pearson v. Callahan and United States v. Herring, which presage a significant decline in the number of lower court cases addressing the merits of …

Fourth Amendment Federalism And The Silencing Of The American Poor, Andrew E. Taslitz

Chicago-Kent Law Review

In Virginia v. Moore, police officers searched Moore incident to an arrest for a minor traffic infraction for which Virginia statutory law in fact prohibited arrest. The officers found cocaine on Moore's person, arresting him for that crime too. The United States Supreme Court ultimately found that the arrest for the traffic infraction and the subsequent search were valid under the federal Constitution's Fourth Amendment. Central to the Court's reasoning was its insistence that the state statute was irrelevant. Any contrary conclusion, explained the Court, would wrongly make the Fourth Amendment's meaning vary from place to place. Professor Taslitz …

Replacing The Exclusionary Rule: Fourth Amendment Violations As Direct Criminal Contempt, Ronald J. Rychlak

Chicago-Kent Law Review

The exclusionary rule, which bars from admission evidence obtained in violation of the Fourth Amendment's prohibition of unreasonable searches and seizures, is a bedrock of American law. It is highly controversial, but there seems to be no equally effective way to protect citizens' rights. This paper proposes that an admissibility standard be adopted that is in keeping with virtually every jurisdiction around the world other than the United States. Thus, before ruling evidence inadmissible, the court would consider the level of the constitutional violation, the seriousness of the crime, whether the violation casts substantial doubt on the reliability of the …

Melendez-Diaz And The Right To Confrontation, Craig M. Bradley

Chicago-Kent Law Review

In Crawford v. Washington, the Supreme Court overruled Ohio v. Roberts and adopted new law concerning the use of hearsay testimony at criminal trials. This was based on the Sixth Amendment's command that "In all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him .. " On its face this provision seems to say that the accused has the right to cross-examine anybody who testifies for the prosecution at trial, whether as a live witness or through hearsay. The Supreme Court acknowledged much of this in Crawford, but …

The Fourth Amendment, The Exclusionary Rule, And The Roberts Court: Normative And Empirical Dimensions Of The Over-Deterrence Hypothesis, Donald Dripps

Chicago-Kent Law Review

This essay engages in the risky business of predicting future Supreme Court developments. In the first part, I analyze the evidence suggesting that the Roberts Court might abolish the exclusionary rule. The critique of exclusion in Hudson v. Michigan is both less and more probative than appears at first blush. Part II turns to some less obvious evidence pointing in the direction of retaining the exclusionary rule. First, abolition of the exclusionary rule is inconsistent with the Hudson majority's apparent content with prevailing police behavior. Second, abolition of the exclusionary rule would curtail the power of the Supreme Court. Part …

Suspicionless Laptop Searches Under The Border Search Doctrine: The Fourth Amendment Exception That Swallows Your Laptop, Ari B. Fontecchio

Cardozo Law Review

No abstract provided.

Police Paternalism: Community Caretaking, Assistance Searches, And Fourth Amendment Reasonableness, Michael R. Dimino, Sr.

Washington and Lee Law Review

No abstract provided.

Mothers And Sons: The Lloyd Schlup Story, Sean O'Brien

Faculty Works

This article tells the back story of the near-execution of Lloyd Schlup, condemned to die in Missouri for the 1984 murder of fellow Missouri State Penitentiary prisoner Arthur Dade, Jr. Mr. Schlup came within hours of execution before the Supreme Court granted certiorari on his case to decide whether a prisoner who is probably innocent can avail himself of the habeas corpus remedy. Mr. Schlup's and Mr. Dade's mothers played pivotal roles in the ultimate outcome of Schlup v. Delo, 513 U.S. 298 (1995). Dedicated to the memory of Nancy Slater.

The Court Of Life And Death: The Two Tracks Of Constitutional Sentencing Law And The Case For Uniformity, Rachel E. Barkow

Michigan Law Review

The Supreme Court takes two very different approaches to substantive sentencing law. Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court's reading of the Constitution, states must draft death penalty statutes with enough guidance to avoid death sentences being imposed in an arbitrary and capricious manner Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence. The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, and it has frequently exempted certain crimes and certain offenders from …

Law Day Oral Argument Session 5th District Court Of Appeal, 2009, Honorable Jacqueline R. Griffin, Presiding Judge, Honorable C. Alan Lawson, Honorable Kerry I. Evander

Law Day Presentations

As part of Law Day, a panel of three justices from the Florida Fifth District Court of Appeal hear oral arguments for the following three cases: Huck v. State, Alsobiae v. Parkinson, and Demings, Sheriff v. Orange County Citizen Review Board. Following each oral argument, the Court takes questions on Court procedures and operations.

The Lexington Principles On The Rights Of Detainees: A Transnational Legal Process Approach To Due Process, David Alan Jordan, Frederic L. Kirgis, R. Brooke Lewis, Thomas Greenwood, Bennett L. Ross, Kathryn M. Zunich

Scholarly Articles

In Boumediene v. Bush, decided June 12, 2008, the U.S. Supreme Court extended the constitutional privilege of habeas corpus to noncitizens detained at Guantanamo Bay, Cuba. Courts will now be called upon to assess the propriety of American detainee treatment practices against unclear constitutional standards. The strength and contours of the due process protections the U.S. Constitution will afford these detainees is still an unsettled question. The Lexington Principles are designed to help guide the development of American due process standards as they move outside our borders. These Principles are also intended to serve as a model for those …

Towards A More Reasonable Approach To Free Will In Criminal Law, Stephen O'Hanlon

Cardozo Public Law, Policy & Ethics Journal

This paper questions criminal law's strong presumption of free will. Part I assesses the ways in which environment, nurture, and society influence human action. Part II briefly surveys studies from the fields of genetics and neuroscience which call into question strong assumptions of free will and suggest explanations for propensities toward criminal activity. Part III discusses other "causes" of criminal activity including addiction, economic deprivation, gender, and culture. In light of Parts I through III, Part IV assesses criminal responsibility and the legitimacy ofpunishment. Part V considers the possibility of determiningpropensity for criminal activity based on assessing causal factors and …

Discrimination, Coercion, And The Bail Reform Act Of 1984: The Loss Of The Core Constitutional Protections Of The Excessive Bail Clause, Samuel R. Wiseman

Scholarly Publications

No abstract provided.

Orwell’S Vision: Video And The Future Of Civil Rights Enforcement, Howard M. Wasserman

Faculty Publications

No abstract provided.

Peering Into The Judicial Magic Eight Ball: Arbitrary Decisions In The Area Of Juror Removal, 42 J. Marshall L. Rev. 813 (2009), Kimberly Wise

UIC Law Review

No abstract provided.

When Is Lying Illegal? When Should It Be? A Critical Analysis Of The Federal False Statements Act, 43 J. Marshall L. Rev. 111 (2009), Steven R. Morrison

UIC Law Review

No abstract provided.

Justice Sutherland Reconsidered, 62 Vand. L. Rev. 639 (2009), Samuel R. Olken

UIC Law Open Access Faculty Scholarship

No abstract provided.

Herring V. United States: Mapp's "Artless" Overruling?, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

Giles V. California: Sixth Amendment Confrontation Right, Forfeiture By Wrongdoing, And A Misguided Departure From The Common Law And The Constitution, 40 U. Tol. L. Rev. 577 (2009), Ralph Ruebner, Eugene Goryunov

UIC Law Open Access Faculty Scholarship

No abstract provided.

Developing A State Constitutional Law Strategy In New Mexico Criminal Prosecutions, J. Thomas Sullivan

Law Faculty Scholarship

This article includes a review of the process by which the New Mexico courts have developed an independent state constitutional jurisprudence reflecting more expansive protections of individual rights than those afforded by the Federal Constitution, as interpreted in the decisions of the United States Supreme Court. It addresses the existing body of state constitutional law and suggests possibilities for further developments, including both the substantive aspects of state constitutional topics and the procedural requirements for asserting state constitutional protections as alternative sources for protection of individual rights. It documents how far New Mexico has come in developing a state constitutional …

Big Bill Haywood's Revenge: The Original Intent Of The Exclusionary Rule, Milton Hirsch

St. Thomas Law Review

We have been given fair warning. In two recent cases, Hudson v. Michigan and Herring v. United States, the Supreme Court made clear its desire to phase out the Fourth Amendment exclusionary rule - that century-old ornament of constitutional jurisprudence pursuant to which evidence obtained in violation of a defendant's right to be free from unreasonable search and seizure will not be received in court. Justice Scalia, writing for a bare majority in Hudson, argued that the utility, if any, of the exclusionary rule has run its course; and that the rule itself is better supplanted by alternative means of …

Through A Scanner Darkly: The Use Of Fmri As Evidence Of Mens Rea, Teneille Brown, Emily R. Murphy

Journal of Law and Health

Tonight we are pleased to host an event exploring fMRI and its legal significance. Although [neuroimaging] is still an emerging technology, it has proven to be very consequential in at least one situation. In September 2008, the New York Times reported that a court in India allowed the use of brain scan images in a criminal case, which ultimately led to the conviction of an Indian woman accused of poisoning her fiance. To this day, the Indian woman maintains her innocence. Hank Greely, a bioethicist at Stanford Law School and a colleague of our speakers, commented on the verdict, [characterizing …