Criminal Procedure Commons^™

Detention For The Purpose Of Interrogation As Modern "Torture", Rinat Kitai-Sangero

ExpressO

Although the Court in Miranda stated that custodial interrogation is designed to undermine the will of the interogee, it has not prohibited the admission of confession given under such circumstances. It rather assumed that it is possible to dispel the pressures of a custodial interrogation by means of proper safeguards. The article claims that there is no plausible way to dispel the coercive atmosphere engendered by a custodial interrogation. Custody today constitutes a refined version of torture used in the past in order to extract confessions. Consequently, the confession of a suspect under circumstances of custodial interrogation is involuntary and …

Summary Of State V. Rincon, 122 Nev. Adv. Op. 99, Michelle L'Hommedieu

Nevada Supreme Court Summaries

A motorist is driving below the speed limit is, by itself, insufficient to give rise to a reasonable suspicion of driving while intoxicated warranting an investigative stop. While reasonable suspicion is not a stringent standard, it requires more than a mere observation that a motorist is driving slowly. There must be additional indicia of erratic driving or unusual behavior before a reasonable suspicion arises justifying an investigative stop. Where no reasonable suspicion exists, an inquiry stop may nonetheless be justified under the community caretaking doctrine when a police officer has an objectively reasonable belief that a slow driver is in …

Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook

Scholarly Works

This Article will commence with a review of the rather significant evolution of Rule 11, including a review of several pertinent Supreme Court decisions that have helped shape its current structure. Thereafter, the predominant judicial methodology for conducting Rule 11 hearings will be discussed. Specifically, this Article will take a brief but critical look at, inter alia, the examination techniques employed by the judiciary when conducting Rule 11 hearings, and conclude that the process typically employed inadequately assesses whether a defendant's guilty plea was entered into knowingly and voluntarily. Next, this Article will discuss two very recent Supreme Court decisions--United …

Taking Judicial Notice Of Genocide? The Problematic Law And Policy Of The Karemera Decision, Ralph Mamiya

ExpressO

On June 16, 2006, the Appeals Chamber of the International Criminal Tribunal for Rwanda issued a decision in Prosecutor v. Karemera taking judicial notice of the fact that genocide occurred in Rwanda in 1994. This decision startled many court observers. While no internationally respected commentator would today question whether the Rwanda genocide took place, should such an event be judicially noticed without evidence? This paper examines that question, arguing that the ICTR Appeals Chamber’s expansive use of judicial notice in Karemera was both illogical and unwise. Genocide, whether as an historical fact or legal charge, fails to meet the “common …

The Next Step In Interpreting Criminal Forfeiture, Avital Blanchard

Cardozo Law Review

No abstract provided.

Exactions: Exploring Exactly When Nollan And Dolan Should Be Triggered, Jane C. Needleman

Cardozo Law Review

No abstract provided.

Strengthening The Criminal Defendant's Right To Counsel, Anne Bowen Poulin

Cardozo Law Review

No abstract provided.

The Jurisdictional Heritage Of The Grand Jury Clause, Roger A. Fairfax

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Summary Of Estes V. State, 122 Nev. Adv. Op. No. 96, Michael Hammer

Nevada Supreme Court Summaries

Appeal from a conviction, by jury, of two counts of preventing or dissuading a person from testifying or producing evidence, one count of first-degree kidnapping, two counts of battery with intent to commit a crime, six counts of sexual assault of a minor under 14, two counts of coercion, and two counts of lewdness with a child under 14. The primary issue on appeal was the admissibility of evidence gathered while the Appellant was committed to a mental institution for the purpose of evaluating competency to stand trial.

Death Penalty Jurisprudence In New York And The Supremacy Clause Of The United States Constitution: How Supreme Is It ?, Joseph E. Fahey

ExpressO

This article deals with the treatment of the Supremacy Clause by the New York Court of Appeals in the evolution of its death penalty jurisprudence. It traces the application of the Clause by the Court and its abandonment in its imposition of stronger guarantees under the New York State Constitution

The Real (Sentencing) World: State Sentencing In The Post-Blakely Era, Douglas A. Berman, Steven L. Chanenson

Working Paper Series

Soon after the Supreme Court in Blakely v. Washington declared certain judicial fact-finding within a state sentencing guideline system unconstitutional, Justice O’Connor described the Court’s decision as a “Number 10 earthquake.” But two years after the Blakely ruling, the case’s broader impact and meaning for state criminal justice systems around the country has been largely overshadowed by developments in the federal sentencing system. Nevertheless, this is an exciting time for state sentencing. By granting review in yet another state sentencing case, California v. Cunningham, this past spring, the Supreme Court brings state issues to the national stage once more.

State …

Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough

University of Richmond Law Review

The authors have endeavored to select from the many appellate cases those that have the most significant precedential value. The article also outlines some of the most consequential changes enacted by the General Assembly in the areas of criminal law and procedure.

Punishment, Prisons, And The Bible: Does "Old Testament Justice" Justify Our Retributive Culture?, Martin H. Pritikin

Cardozo Law Review

No abstract provided.

Two Constitutional Wrongs Do Not Make A Right: Double Jeopardy And Prosecutorial Misconduct Under The Brady Doctrine, Adam M. Harris

Cardozo Law Review

No abstract provided.

An Unwarranted Disparity: Granting Fast-Track Departures In Non-Fast-Track Districts, Evan W. Bolla

Cardozo Law Review

No abstract provided.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Combating Terrorism In Bosnia-Herzegovina: Explaining And Assessing Article 201 Of The Bosnian Criminal Code, Henry M. Lovat

ExpressO

This paper explores the legal measures that have been enacted in Bosnia-Herzegovina (BiH) to counter the threat of terrorism, focusing particularly on the international and domestic political context in which the reform of the Bosnian criminal code was carried out, on the apparent origins of Article 201 of the BiH criminal code in the European Union Framework Decision on Combating Terrorism of June 2002 and on the strengths and weaknesses of this definition in the Bosnian context. The paper argues firstly that the events of 9/11, while certainly of significance, were less salient to the definition of terrorism adopted in …

Off To Elba: The Legitimacy Of Sex Offender Residence And Employment Restrictions, Joseph L. Lester

ExpressO

Overborne by a mob mentality for justice, officials at every level of government are enacting laws that effectively exile convicted sex offenders from their midst with little contemplation as to the appropriateness or constitutionality of their actions. These laws fundamentally alter the liberties and freedom of convicted sex offenders to satisfy the ignorant fear of the masses. As a result, residence and employment restrictions which in theory are to protect society, in practice only exacerbate the perceived recidivism problem. When such laws are passed and the political process is broken, it is necessary for the judicial branch to step forward …

The Brain-Disordered Defendant: Neuroscience And Legal Insanity In The Twenty-First Century, Richard E. Redding

Working Paper Series

Brain-damaged defendants are seen everyday in American courtrooms, and in many cases, their criminal behavior appears to be the product of extremely poor judgment and self-control. Some have a disorder in the frontal lobes, the area of the brain responsible for judgment and impulse control. Yet because defendants suffering from frontal lobe dysfunction usually understand the difference between right and wrong, they are unable to avail themselves of the only insanity defense available in many states, a defense based on the narrow McNaghten test. “Irresistible impulse” (or “control”) tests, on the other hand, provide an insanity defense to those who …

Habeas Corpus, Judicial Review, And Limits On Secrecy In Detentions At Guantanamo, Jonathan Hafetz

Cardozo Public Law, Policy & Ethics Journal

The article examines the role of secrecy in post-9/11 counterterrorism detentions, particularly at Guantanamo Bay, and the legal challenges posed by the Detainee Treatment Act (DTA) and Military Commissions Act (MCA). These acts sought to limit habeas corpus jurisdiction, potentially restoring a system of unaccountable detentions. The analysis highlights how habeas corpus serves as a critical check on executive power, ensuring judicial review of detentions and transfers, and protecting against unlawful confinement. The Supreme Court's rulings in Rasul v. Bush and Hamdan v. Rumsfeld are central to this discussion, as they affirmed habeas protections and invalidated certain detention practices.

Allocution And The Purposes Of Victim Participation Under The Cvra, Richard A. Bierschbach

Articles

The article examines the interpretive challenges surrounding Section 3771(a)(4) of the Crime Victims' Rights Act (CVRA) of 2004, which grants victims the right to be "reasonably heard" in certain court proceedings. The CVRA aims to integrate victims into the criminal justice system, but its ambiguous language has led to conflicting court interpretations, particularly regarding whether victims have an absolute right to speak at sentencing. The article explores the legislative intent, purposes behind the provision, and the effectiveness of victim participation mechanisms, ultimately advocating for clearer policy guidance to address these ambiguities.

Modem Legal Reform In Egypt: Shifting Claims To Legal Authority, Shannon M. Roesler

Cardozo Journal of International and Comparative Law

The article challenges the notion that Egyptian legal reform simply replaced Islamic law with European law, instead presenting it as a complex interplay where Islamic legal theory and European influences coexist. It highlights the dynamic process of integrating Islamic principles into the legal system, emphasizing the historical negotiation between fiqh (Islamic jurisprudence) and siyasa (state governance).

Civil Due Process, Criminal Due Process, Niki Kuckes

Law Faculty Scholarship

No abstract provided.

Panel Report: Secret Evidence In The Investigative Stage: Fisa, Administrative Subpoenas, And Privacy, Jameel Jaffer

Cardozo Public Law, Policy & Ethics Journal

The article examines the increasing reliance on foreign intelligence surveillance tools, such as the Foreign Intelligence Surveillance Act (FISA) and National Security Letters (NSLs), highlighting the tension between national security and civil liberties. It argues that the expansion of these tools under the Patriot Act has raised significant privacy concerns and questions about the adequacy of judicial and public oversight.

Panel Report: Issues In Article Iii Courts, Debra A. Livingston

Cardozo Public Law, Policy & Ethics Journal

The article explores the challenges Article III courts face in balancing national security interests with procedural due process when handling cases involving classified information, particularly in terrorism-related prosecutions. It examines the logistical, constitutional, and evidentiary issues arising from the use of secret evidence, raising questions about the adequacy of current legal frameworks and the potential need for alternative procedural mechanisms.

Panel Report: National Security Secrecy In The Courts: A Comparative Perspective From Israel And Ireland, Peter Raven-Hansen

Cardozo Public Law, Policy & Ethics Journal

The article examines how democratic nations, including Israel, Ireland, and the United States, balance national security secrecy with the rule of law in terrorism prosecutions. It highlights the challenges of using secret evidence in criminal trials while maintaining fair procedures, comparing the legal frameworks and practices of these countries. The analysis reveals common issues, such as the tension between protecting sensitive information and ensuring defendants' rights, and underscores the need for transparency and procedural integrity in terrorism cases.

Qur'anic Hermeneutics And Sexual Politics, Asma Barlas

Cardozo Law Review

No abstract provided.

Troubles With Hiibel: How The Court Inverted The Relationship Between Citizens And The State, John A. Fennel, Richard Sobel

ExpressO

This essay shows why the Supreme Court’s decision in Hiibel v. Sixth Judicial District of Nevada violates precedent, the Constitution, and the very basis for the relationship between government and the governed. First, the Court has violated the clear limits Terry v. Ohio set on the restricted searches based on reasonable suspicion within the restrictions of the Fourth and Fifth Amendments. By using the power of the state to compel citizens to produce identification, it also violates the First, Fourth, and Fifth Amendments as well as the unenumerated rights that conceptually link the enumerated rights in the Court’s jurisprudence. Finally, …

Transnational Criminal Law And Procedure: An Introduction, Sadiq Reza

Journal of Legal Education

No abstract provided.

Incorporating Transnational Law In First Year Criminal Law And Procedure Classes, Ellen S. Podgor

Journal of Legal Education

No abstract provided.