Criminal Procedure Commons^™

The Place Of Covert Policing In Democratic Societies: An Empirical Study Of The U.S. And Germany, Jacqueline E. Ross

ExpressO

My study of undercover policing explores the ways in which democratic legal systems change when they legalize highly contested police practices that have long been quietly tolerated and accorded minimal scrutiny. Undercover policing is a prime of example of such a practice. It has long been subject to remarkably little legislative oversight and systematic regulation in the United States and Western Europe. It exists in a twilight of legality—a necessary evil, but one inviting anxieties about its legitimacy and consonance with the rule of law. Under pressure from the European Court of Human Rights, Germany (along with other Western European …

Write On!, Steven L. Chanenson

Working Paper Series

Modern federal appellate review of sentences is a recent phenomenon introduced by the Sentencing Reform Act of 1984. Before United States v. Booker, courts of appeal focused on enforcing the technical rules of the federal sentencing guidelines and did so with (over)zealous enthusiasm. In the new post-Booker world, appellate judges are supposed to review sentences for "reasonableness." But how are they supposed to determine what is - or is not - a reasonable sentence? The answer to this puzzle rests in the mind of the District Judge. This short essay argues that the sentencing judge must explain his reasons, and …

Civil Commitment Of Sexually Violent Predators: The Search For A Limiting Principle, Aman Ahluwalia

Cardozo Public Law, Policy & Ethics Journal

The article challenges the legal and empirical justifications for civil commitment of sexually violent predators, arguing that current standards, such as mental abnormality and lack of control, are overly broad and lack robust empirical support. It contends that recidivism rates for sex offenders are not significantly higher than those of other offenders, undermining the rationale for civil commitment. The analysis advocates for a more nuanced approach to incapacitation, emphasizing criminal law solutions over medicalized commitments.

Reconciling The Booker Conflict: A Substantive Sixth Amendment In A Real Offense Sentencing System, Bertrall L. Ross Ii

Cardozo Public Law, Policy & Ethics Journal

The article examines the tension between the Sixth Amendment right to a jury trial and real offense sentencing, arguing that this conflict is not inevitable and can be reconciled. It advocates for a system where the jury plays a substantive role in checking judicial discretion during sentencing, ensuring constitutional protections while allowing judges to individualize sentences based on real offense factors. The proposed framework moves beyond the separation of functions model, integrating the jury into sentencing decisions to balance retributive punishment with constitutional safeguards.

Forgetting Freud: The Courts' Fear Of The Subconscious In Date Rape (And Other) Criminal Cases, Andrew E. Taslitz

ExpressO

Courts too often show a reluctance to learn the lessons taught by social science in criminal cases, especially where subconcious processes are involved. The subconscious is seen as rarely relevant and, in the unusual cases where it is relevant, it is viewed as a disease commandeering the conscious mind and thus helping to exculpate the accused. Drawing on the example of forensic linguistics in date rape cases as illustrative of a broader phenomenon, this article argues that the courts' misuse of social science stems from fear and misunderstanding of the workings of the subconscious mind. Accordingly, the piece contrasts the …

Suspicionless Canine Sniffs: Does The Fourth Amendment Prohibit Public Schools From Using Dogs To Search Students Without Individualized Suspicion?, Todd J. Feinberg

ExpressO

Drugs plague our nation’s schools. Since traditional methods of fighting the problem are proving ineffective, some schools are trying new approaches. One such approach is using specially trained dogs to indiscriminately sniff students for the presence of illegal drugs. Using dogs to sniff students is controversial and has sparked a constitutional debate. The Supreme Court has not expressly ruled on whether suspicionless canine sniffs violate a public school student’s Fourth Amendment protection against unreasonable searches. In fact, the Court has acted in a manner that actually increases uncertainty around the issue. This uncertainty makes employing suspicionless canine sniffs difficult for …

Establishing A Precedent In Uganda: The Legitimacy Of National Amnesties Under The Icc, Robin B. Murphy

ExpressO

After 14 years of unconscionable wrath against local civilians, including enforced recruitment of thousands of child soldiers, the rebel group The Lord’s Resistance Army (“LRA”) was offered amnesty by the Ugandan government in 2000. However, as the conflict continued unabated, the Ugandan government, for the first time in the history of the Court, referred its case to the International Criminal Court (“ICC”). The ICC Prosecutor announced the beginning of an investigation and issued warrants for seven top LRA officers in October of 2005. The potential ICC prosecution raises many questions about the jurisdiction of the new court, including whether the …

Vengeance, Forgivness, Resentment, Jurisprudence, Dispute Resolution, Theodore Y. Blumoff

ExpressO

Vengeance is generally accompanied by the moral emotion of resentment and indignation, which are also natural psychological reactions. We can and do give these emotions cognitive content, inasmuch as they have developed and matured over time with culture, but they are primitive. They arise when an individual suffers a non-trivial injury that was inflicted without excuse or justification. Among other injuries suffered, the harm done discounts the value we hold of ourselves as human beings, so that when this discounting (the crime or a substantial tort) occurs and we react defensively; our worth as an individual feels threatened. We hope …

'Tis A Gift To Be Simple: A Model Reform Of The Federal Sentencing Guidelines, Frank O. Bowman Iii

Faculty Publications

This essay introducing the June 2006 edition of the Federal Sentencing Reporter (Vol. 18, No. 5) describes two important contributions to the movement for real reform of the federal sentencing system. First, Professor Bowman summarizes the recommendations of the Constitution Project Sentencing Initiative (CPSI) report on federal sentencing. The CPSI report, reproduced in this Issue, cautions against any over-hasty legislative response to the Supreme Court's decision in United States v. Booker, suggests some near-term improvements to the existing federal sentencing system, and then sets out a framework for a reformed and markedly simplified federal sentencing regime. Second, Professor Bowman describes …

The Silent Criminal Defendant And The Presumption Of Innocence: In The Hands Of Real Jurors, Is Either Of Them Safe, Mitchell J. Frank, Dawn Broschard

Faculty Scholarship

No abstract provided.

The Model Federal Sentencing Guidelines Project: Departures, Model Sentencing Guidelines §5.1, Frank O. Bowman Iii

Faculty Publications

This Article is the twelfth of twelve parts of a set of Model Federal Sentencing Guidelines designed to illustrate the feasibility and advantages of a simplified approach to federal sentencing proposed by the Constitution Project Sentencing Initiative. The Model Sentencing Guidelines and the Constitution Project report are all to be published in Volume 18, Number 5 of the Federal Sentencing Reporter. The project is described in an essay titled 'Tis a Gift To Be Simple: A Model Reform of the Federal Sentencing Guidelines, available on SSRN at http://ssrn.com/abstract=927929. This segment of the project contains rules governing the imposition of sentences …

Wishing Petitioners To Death: Factual Misrepresentations In Fourth Circuit Capital Cases, Sheri Lynn Johnson

Cornell Law Faculty Publications

No abstract provided.

Desert, Democracy, And Sentencing Reform, Alice Ristroph

Faculty Scholarship

No abstract provided.

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The “Csi Effect”: Better Jurors Through Television And Science?, Michael D. Mann

ExpressO

This Comment discusses how television shows such as CSI and Law & Order create heightened juror expectations. This will be published in the Buffalo Public Interest Law Journal's 2005-2006 issue.

An Essay On Vengeance And Forgiveness, Theodore Y. Blumoff

ExpressO

Vengeance is generally accompanied by the moral emotion of resentment and indignation, which are also natural psychological reactions. We can and do give these emotions cognitive content, inasmuch as they have developed and matured over time with culture, but they are primitive. They arise when an individual suffers a non-trivial injury that was inflicted without excuse or justification. Among other injuries suffered, the harm done discounts the value we hold of ourselves as human beings, so that when this discounting (the crime or a substantial tort) occurs and we react defensively; our worth as an individual feels threatened. We hope …

Reasonable Expectations Of Privacy And Novel Search Technologies: An Economic Approach, Steven Penney

ExpressO

The “reasonable expectation of privacy” test, which defines the scope of constitutional protection from governmental privacy intrusions in both the United States and Canada, is notoriously indeterminate. This indeterminacy stems in large measure from the tendency of judges to think of privacy in non-instrumentalist terms. This “moral” approach to privacy is normatively questionable, and it does a poor job of identifying the circumstances in which privacy should prevail over countervailing interests, such as the deterrence of crime.

In this paper, I develop an alternative, economically-informed approach to the reasonable expectation of privacy test. In contrast to the moral approach, which …

Mixed Messages: The Supreme Court’S Conflicting Decisions On Juries In Death Penalty Cases, Ken Miller, David Niven

ExpressO

The right to a jury determination of a capital defendant's fate has expanded recently. The era of judges making factual determinations then determining whether to apply a death sentence or judges having the power to overrule a jury's life sentence to impose death is over. The expanded right to access a jury and have it hold determinative power over a defendant's life has not, however, been accompanied by commensurate attention to the instructions that guide those jurors through the applicable law toward their verdict. Nor have adequate procedures been designed to produce a truly representative jury panel. In brief, the …

Would Banning Firearms Reduce Murder And Suicide? A Review Of International Evidence, Don B. Kates, Gary A. Mauser

ExpressO

The world abounds in instruments with which people can kill each other. Is the widespread availability of one of these instruments, firearms, a crucial determinant of the incidence of murder? Or do patterns of murder and/or violent crime reflect basic socio-economic and/or cultural factors to which the mere availability of one particular form of weaponry is irrelevant?

This article examines a broad range of international data that bear on two distinct but interrelated questions: first, whether widespread firearm access is an important contributing factor in murder and/or suicide, and second, whether the introduction of laws that restrict general access to …

An Integrated Perspective On The Collateral Consequences Of Criminal Convictions And Reentry Issues Faced By Formerly Incarcerated Individuals, Michael Pinard

Faculty Scholarship

This article examines the emergent focus on the collateral consequences of criminal convictions and the reentry of formerly incarcerated individuals. Specifically, the article details the ways in which legal scholars, policy analysts, elected officials, legal services organizations and community based organizations have begun to address these components of the criminal justice system. The article argues that these various groups have compartmentalized collateral consequences and reentry by focusing almost exclusively on one component to the exclusion of the other. In doing so, they have narrowed the lens through which to view these components, and have therefore missed opportunities to develop integrated …

Summary Of Stockmeier V. Psychological Review Panel, 122 Nev. Adv. Op. No. 50, Gregory A. Hubbard

Nevada Supreme Court Summaries

The Psychological Review Panel (“Psych Panel”) held a hearing to consider whether a prisoner serving consecutive sentences for sex offenses was a threat to society if he were released on parole. The Psych Panel decided not to certify the prisoner for release, partially based on new allegations made by the victim during the hearing. The prisoner filed a district court petition for a writ of mandamus, prohibition, or habeas corpus, challenging the Psych Panel’s actions. The district court denied and dismissed the petition. The Nevada Supreme Court held that the district court abused its discretion in denying and dismissing the …

Judicial Anarchy: The Admission Of Convictions To Impeach -State Supreme Court Interpretive Standards, 1990-2004, Dannye Holley

ExpressO

This is the second and sequential national study of an important evidence and criminal justice issue - the admission of convictions to impeach. It is a longitudinal national study of how state supreme courts have recently, over the last decade and one-half, evaluated this issue. The longitudinal study period of 1990-2004 mirros the study period of state rules on this issue which was undertaken in the first article. The study period was chosen for an explicit substantive rationale that was explained in that article and is repeated in this article. Because both articles are decade and one-half studies they will …

A Case For The Prosecution Of Kim Jong Il For Crimes Against Humanity, Genocide, And War Crimes , Grace M. Kang

ExpressO

This article provides a factual overview of the deplorable human rights situation in the Democratic People’s Republic of Korea (DPRK or North Korea). It shows how the International Criminal Court (ICC) could have jurisdiction over these crimes. It provides the legal framework for establishing individual criminal liability for the crimes under the ICC’s jurisdiction. It applies this framework and the legal standards for genocide, crimes against humanity, and war crimes to the facts existing in the DPRK, as provided by credible sources. It concludes that published facts indicate a reasonable basis to believe that Kim Jong Il, who controls the …

The Military Extraterritorial Jurisdiction Act And Its Implications For Private Military Companies, Dustin M. Tipling

ExpressO

Private Military Companies (PMCs) are civilian staffed corporations that provide military (and law enforcement) services, logistics, and support under contract to a government both inside and outside the country’s borders. Prior to Congress passing the Military Extraterritorial Jurisdiction Act, U.S. courts lacked jurisdiction to prosecute civilians accompanying United States’ Armed Forces overseas. This article will specifically address how the United States exercises jurisdiction and prosecutes the civilian employees of PMCs in United States courts for crimes they have committed in foreign countries while working under contract to the United States government.

Summary Of Mejia V. State, 122 Nev. Adv. Op. 43, David T. Gluth

Nevada Supreme Court Summaries

Defendant Mejia appealed a judgment of the Eighth Judicial District Court after a jury convicted him of one count of sexual assault against a minor under 14 years of age and seven counts of lewdness with a minor under 14 years of age. Mejia was sentenced to two concurrent terms of life imprisonment with the possibility of parole in ten years for each count of lewdness.

Probable Cause In A Nervous Age, Bruce A. Antkowiak

ExpressO

The article seeks a new understanding of the ancient principle of probable cause in an age in which public policy and law have been profoundly influenced by the fear of terrorism. It explores the importance of probable cause within a broader constitutional system, arguing that while it helps to protect the specific right against unreasonable searches, it is also part of a larger, structural protection of liberty generally.

The article explores the frustrating efforts a judge will undertake in finding meaning to the concept by resort to precedent, linguistics, mathematical models or history. Ultimately, it argues that the core of …

The Right To Be Hurt. Testing The Boundaries Of Consent., Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

People's right to consent to pain, injury or death has always been one of the most controversial issues in criminal law and moral philosophy. In recent years, that issue has moved to the forefront of public, legislative, and academic debates in the United States and abroad due to a series of high-profile criminal trials, which involved consenting victims in various contexts--from sadomasochism and cannibalism to experimental medical treatment and mercy killing.

Currently, American criminal law does not recognize consent of the victim as a defense to bodily harm, except in a few historically defined circumstances. That rule has been criticized …

Review Essay: Using All Available Information, Max Huffman

ExpressO

This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting …

The War On Terror, Local Police, And Immigration Enforcement: A Curious Tale Of Police Power In Post-9/11 America, David A. Harris

ExpressO

In post-9/11 America, no goal ranks higher for law enforcement than preventing the next terrorist attack. This is as true for local police departments as it is for the FBI, and police in cities. At the same time, many advocates of tightening U.S. immigration enforcement have recast their efforts as national security and anti-terrorism campaigns. Thus, these advocates and their many allies in the current administration and in Congress have called for local police to become involved in enforcing immigration law. Officials in both the executive and legislative branches of the federal government have taken a number of actions designed …

Non Bis In Idem And The International Criminal Court, Reynaud Neil Daniels

ExpressO

Non bis in idem, or the double jeopardy principle, is a fundamental element of fairness in criminal procedure. At its core, it prohibits the state from repeatedly prosecuting, and punishing, individuals for the same offence. The Rome Statute contains the principle but affords little protection against harassment by contracting parties.