Criminal Procedure Commons^™

Regional International Criminal Courts: An Idea Whose Time Has Come?, Firew Kebede Tiba

Cardozo Journal of Conflict Resolution

Regionalism in international relations is a fact of life. Regional judicial implementation of international norms is relatively common in the fields of international human rights, international investment, and trade laws. There are attempts to break ground in the realm of international criminal law by creating a regional international criminal court, such as the proposed addition of the criminal jurisdiction to the African Court of Justice and Human Rights. Although there was momentum in creating a universal permanent international criminal court, the enthusiasm for the tribunal's exercise of jurisdiction has not continued. The International Criminal Court ("ICC") will remain short of …

The Human Rights Of Sea Pirates: Will The European Court Of Human Rights Decisions Get More Killed?, Barry Hart Dubner, Brian Othero

Faculty Scholarship

No abstract provided.

Evidence Laundering In A Post-Herring World, Kay L. Levine, Jenia I. Turner, Ronald F. Wright

Faculty Articles

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. The original constitutional taint disappears in the wash.

Courts have allowed evidence laundering in a variety of contexts, from cases involving flawed databases to cases stemming from faulty judgments and communication lapses in law enforcement teams. …

The Big Data Jury, Andrew Ferguson

Scholarly Articles in Law Reviews & Journals

This article addresses the disruptive impact of big data technologies on jury selection.Jury selection requires personal information about potential jurors. Current selection practices, however, collect very little information about citizens, and litigants picking jury panels know even less. This data gap results in a jury selection system that: (1) fails to create a representative cross-section of the community; (2) encourages the discriminatory use of peremptory challenges; (3) results in an unacceptably high juror “no show” rate; and (4) disproportionately advantages those litigants who can afford to hire expensive jury consultants.Big data has the potential to remedy these existing limitations and …

The Transformative Influence Of International Law And Practice On The Death Penalty In The United States, Richard Wilson

Contributions to Books

No region of the world has been more vocal and persistent in its opposition to U.S. death penalty practice than Europe, which has itself become a death penalty-free zone. The chapter will examine the actions taken by European legislative and judicial bodies against U.S. practice of the death penalty, as well as those of the other regional treaty bodies, with particular attention to the Inter-American human rights system, in which the U.S. reluctantly participates. It then will examine U.S. interactions with its treaty partners in the area of extradition, where death penalty policy is acted out in the exchanges of …

Introduction: New Models For Prosecutorial Accountability, Russell Shapiro

Cardozo Law Review de•novo

The criminal justice system in the United States was established on a simple notion: “that it is better that ten guilty persons escape, than that one innocent suffer.” It is for this reason that a prosecutor’s burden at trial is so demanding, requiring proof beyond a reasonable doubt. Yet, while a vast majority of prosecutors are committed to the highest ethical standards, with troubling frequency, some high profile exonerations shed light on systemic problems, most often involving failures by prosecutors and other law enforcement officials to disclose exculpatory and impeachment evidence as required by Brady v. Maryland.

To address …

Trying To Fit A Square Peg Into A Round Hole: Why Title Ii Of The Americans With Disabilities Act Must Apply To All Law Enforcement Services, Michael Pecorini

Journal of Law and Policy

Police use of force has been subject to greater scrutiny in recent years in the wake of several high-profile killings of African Americans. Less attention, however, has been paid to the increasingly routine violent encounters between police and individuals with mental illness or intellectual and development disabilities (“I/DD”). This is particularly problematic, as police have become the de-facto first responders to these individuals and far too often police responses to these individuals result in tragedy.

This Note argues that the Americans with Disabilities Act requires law enforcement to provide reasonable accommodations during their interactions with and seizures of individuals with …

More Than Just A Potted Plant: A Court's Authority To Review Deferred Prosecution Agreements Under The Speedy Trial Act And Under Its Inherent Supervisory Power, Mary Miller

Michigan Law Review

In the last decade, the Department of Justice has increasingly relied on pretrial diversion agreements as a means of resolving corporate criminal cases short of prosecution. These pretrial diversion agreements—non-prosecution and deferred prosecution agreements—include substantive terms that a company must abide by for the duration of the agreement in order to avoid prosecution. When entering a deferred prosecution agreement, the Department of Justice files charges against the defendant corporation as well as an agreement outlining the variety of terms with which the company must comply. This delay in prosecution is permitted under the Speedy Trial Act, which provides an exception …

Batson V. Kentucky Reflections Inspired By A Podcast, Nancy S. Marder

Kentucky Law Journal

An episode of More Perfect, a podcast devoted to the US. Supreme Court, focused on Batson v. Kentucky, which just marked its thirtieth anniversary. This podcast serves as the starting point for reflections on Batson v. Kentucky, a case in which the Court maintained the peremptory challenge while trying to eliminate discriminatory peremptory challenges. The podcast contributes to our understanding of Batson in several ways. First, it allows listeners to hear from participants in the case and how they viewed their situation at the time. Second, it considers whether Batson has been effective in ridding jury selection …

Crossing The Line: Daubert, Dual Roles, And The Admissibility Of Forensic Mental Health Testimony, Sara Gordon

Scholarly Works

Psychiatrists and other mental health professionals often testify as forensic experts in civil commitment and criminal competency proceedings. When an individual clinician assumes both a treatment and a forensic role in the context of a single case, however, that clinician forms a dual relationship with the patient—a practice that creates a conflict of interest and violates professional ethical guidelines. The court, the parties, and the patient are all affected by this conflict and the biased testimony that may result from dual relationships. When providing forensic testimony, the mental health professional’s primary duty is to the court, not to the patient, …

A Correlational Analysis Of Secondary Data For Factors Influencing Graduation From Adult Drug Court, David N. Masri

Theses and Dissertations

The proliferation of drug courts throughout the world over the last two decades presents an opportunity and a challenge. The drug court approach involves a combination of treatment and judicial supervision which is a diversion from incarceration and/or ‘traditional’ criminal justice supervision. Despite widespread study of drug courts, there is much that researchers still do not know and there is still controversy as to how and why drug courts work. This research study is an examination of secondary data from an urban, mid-Atlantic drug court to attempt to correlate factors that contribute to success (as defined by graduation) in drug …

Confessions In An International Age: Re-Examining Admissibility Through The Lens Of Foreign Interrogations, Julie Tanaka Siegel

Michigan Law Review

In Colorado v. Connelly the Supreme Court held that police misconduct is necessary for an inadmissible confession. Since the Connelly decision, courts and scholars have framed the admissibility of a confession in terms of whether it successfully deters future police misconduct. As a result, the admissibility of a confession turns largely on whether U.S. police acted poorly, and only after overcoming this threshold have courts considered factors pointing to the reliability and voluntariness of the confession. In the international context, this translates into the routine and almost mechanic admission of confessions— even when there is clear indication that the confession …

You've Got Legal Mail: Applying Constitutional Protections To Attorney-Inmate E-Mail Communications, Gregory R. Steele

Georgia Law Review

Several U.S. Attorney's offices have begun to read e-mails between defense attorneys and their inmate-clients sent through the Bureau of Prisons TRULINCS system. District courts have been split on how they address the issue. This Note argues that the practice of reading attorney-inmate e- mails violates the Sixth Amendment. It specifically argues that the legal mail doctrine should be applied to invalidate this practice. It then argues the Bureau of Prisons should promulgate new regulations for legal e-mail that ensure compliance with the constitutional requirements of the newly applied legal e-mail doctrine.

Officiating Removal, Leah Litman

Articles

For the last several years, the Commonwealth of Pennsylvania has quietly attempted to curtail capital defendants' representation in state postconviction proceedings. In 2011, various justices on the Pennsylvania Supreme Court began to call for federally funded community defender organizations to stop representing capital defendants in state postconviction proceedings. The justices argued, among other things, that the organizations' representation of capital defendants constituted impermissible federal interference with state governmental processes and burdened state judicial resources. The court also alleged the community defender organizations were in violation of federal statutes, which only authorized the organizations to assist state prisoners in federal, but …

Praise Defenders, Not Just Prosecutors, Stephen Henderson

Other Faculty Publications

In this letter to the editor, I discuss the problems when a district court judge becomes a graduate and class spokesperson for a Citizens' Police Academy.See article here.See letter here.

Taxing Legalized Marijuana: How Courts Should Treat Drug Tax Statutes In Light Of The Fifth Amendment's Self-Incrimination Clause And Executive Non-Enforcement Of The Controlled Substances Act, Joseph A. Goldstein

Cardozo Law Review

No abstract provided.

Pinholster's Hostility To Victims Of Ineffective State Habeas Counsel, Jennifer Utrecht

Michigan Law Review

Cullen v. Pinholster foreclosed federal courts from considering new evidence when reviewing 28 U.S.C. § 2254(d) petitions for claims previously adjudicated on the merits in state court. This decision has a particularly adverse effect on petitioners whose state habeas counsel left an incomplete or undeveloped record. This Note discusses strategies for victims of ineffective state habeas counsel to avoid the hostile mandate of Pinholster. It argues that, in light of Martinez v. Ryan’s recognition of the importance of counsel in initialreview collateral proceedings, courts should be wary of dismissing claims left un- or underdeveloped by ineffective state habeas counsel. It …

Federalism, Federal Courts, And Victims' Rights, Michael E. Solimine, Kathryn Elvey

Catholic University Law Review

One of the most striking developments in American criminal law and procedure in the past four decades has been the widespread establishment of victims’ rights at both the federal and state levels. A conspicuous exception to the success of the victims’ rights movement has been the failure of Congress to pass a proposed amendment to the U.S. Constitution that would uniformly establish such rights in all federal and state courts. Advanced by both private organizations and state officials, and with bipartisan support in Congress, bills establishing a Victims’ Rights Amendment (VRA) have been introduced several times in the past three …

Downgrading Non-Violent Drug Crimes:An End To The “Lock ‘Em And Leave ‘Em” Mentality, Tran T. Nguyen

Journal of Public Law and Policy

No abstract provided.

Voir Dire: Strategy And Tactics In The Defense Of Social And Political Activists, Murray R. Bowes

Akron Law Review

With the courts increasingly being the forum for legal disputes between those who demand change in the superstructure and those who represent (or are) the structure, a rather unfortunate by-product has evolved: a feeling that the courts can no longer adequately dispense justice.8 This manifests itself in beliefs that if one is prosecuted for activities that were designed to advance social change, either in violation of the law or not, that the individual will not be afforded a fair trial; 9 a reflection that the social or political activist will not be judged by an impartial jury….For the purposes of …

Appellate Review Of Unpreserved Questions In Criminal Cases: An Attempt To Define The Interest Of Justice, Larry Cunningham

The Journal of Appellate Practice and Process

No abstract provided.

Mental Health Courts: Bridging Two Worlds, Honorable Matthew J. D’Emic

Touro Law Review

No abstract provided.

Book Review Of Fraudulent Evidence Before Public International Tribunals: The Dirty Stories Of International Law, Nancy Amoury Combs

Faculty Publications

No abstract provided.

The American Jury System: A Synthetic Overview, Richard Lempert

Chicago-Kent Law Review

This essay is intended to provide in brief compass a review of much that is known about the American jury system, including the jury’s historical origins, its political role, controversies over its role and structure, its performance, both absolutely and in comparison to judges and mixed tribunals, and proposals for improving the jury system. The essay is informed throughout by 50 years of research on the jury system, beginning with the 1965 publication of Kalven and Zeisel’s seminal book, The American Jury. The political importance of the jury is seen to lie more in the jury’s status as a one …

The American Jury System: A Synthetic Overview, Richard O. Lempert

Articles

This essay is intended to provide in brief compass a review of much that is known about the American jury system, including the jury’s historical origins, its political role, controversies over its role and structure, its performance, both absolutely and in comparison to judges and mixed tribunals, and proposals for improving the jury system. The essay is informed throughout by 50 years of research on the jury system, beginning with the 1965 publication of Kalven and Zeisel’s seminal book, The American Jury. The political importance of the jury is seen to lie more in the jury’s status as a one …

Disentangling Michigan Court Rule 6.502(G)(2): The "New Evidence" Exception To The Ban On Successive Motions For Relief From Judgment Does Not Contain A Discoverability Requirement, Claire V. Madill

Michigan Law Review

Michigan courts are engaging in a costly interpretative mistake. Confused by the relationship between two distinct legal doctrines, Michigan courts are conflating laws in a manner that precludes convicted defendants from raising their constitutional claims in postconviction proceedings. In Michigan, a convicted defendant who wishes to collaterally attack her conviction must file a 6.500 motion. The Michigan Court Rules generally prohibit “second or subsequent” motions. Nonetheless, section 6.502(G)(2) permits a petitioner to avoid this successive motion ban if her claim relies on “new evidence that was not discovered” before her original postconviction motion. Misguided by the similarity between the language …

Newsroom: Horwitz On Closed Courtroom Debate, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

#Snitches Get Stitches: Witness Intimidation In The Age Of Facebook And Twitter, John Browning

Pace Law Review

In order to better understand witness intimidation in the age of social media, one must examine both the forms it has taken as well as the response by law enforcement and the criminal justice system. As this article points out, the digital age has brought with it a host of new ways in which witnesses may be subjected to online harassment and intimidation across multiple platforms, and those means have been used to target not only victims and fact witnesses but even prosecutors and expert witnesses as well. The article will also examine potential responses to the problem of witness …

Do Irish Courts And The European Court Of Human Rights Have Achieved The Correct Balance Between Protection Of The Rights Of Individual Prisoners And Pragmatic Concerns Regarding The Proper Functioning Of The Prison System., Adrian Berski

Reports

Nowadays it is very hard to find the relevant balance between decisions of the Irish Courts and European Court of Human Rights (ECtHR), regarding the rights of individual prisoners and the proper functioning of the prison system. On one side, the main function of the courts is resolution dispute, apply the relative law and most importantly: protecting the law and human rights. On the other hand, court decisions have to be based on the relevant prison and justice systems that applies to each particular country.

It is worth taking into consideration that decisions made by the European Court of Human …

Proving Personal Use: The Admissibility Of Evidence Negating Intent To Distribute Marijuana, Stephen Mayer

Michigan Law Review

Against the backdrop of escalating state efforts to decriminalize marijuana, U.S. Attorneys’ Offices continue to bring drug-trafficking prosecutions against defendants carrying small amounts of marijuana that are permitted under state law. Federal district courts have repeatedly barred defendants from introducing evidence that they possessed this marijuana for their own personal use. This Note argues that district courts should not exclude three increasingly common kinds of “personal use evidence” under Federal Rules of Evidence 402 and 403 when that evidence is offered to negate intent to distribute marijuana. Three types of personal use evidence are discussed in this Note: (1) a …