Criminal Procedure Commons^™

Dignity And Desert In Punishment Theory, Kyron J. Huigens

Articles

No abstract provided.

Exonerations Change Judicial Views On Ineffective Assistance Of Counsel, Adele Bernhard

Articles & Chapters

Law evolves more slowly than pop culture or public attitude. Because most exonerations have not resulted in written legal opinions, their impact is slowly seeping into case law. However, courts are influenced by the same news that sways the rest of us. Even without explicitly referring to innocence or wrongful convictions, modern trial courts are undoubtedly more likely to admit expert testimony on the question of eyewitness identification because they are painfully aware of just how easily such witnesses - no matter how honest or passionate - can be wrong. They are certainly more inclined to view confessions suspiciously, especially …

Biological Factors Associated With Aggression And Violent Behavior: A Comparative Analysis Of Scientific, Societal, And Legal Dimensions, Troy M. Bear

ExpressO

No abstract provided.

A Deadly Dilemma: Strategic Choices By Attorneys Representing "Innocent" Capital Defendants, Welsh S. White

ExpressO

No abstract provided.

Resource Parity For Defense Counsel And The Struggle Between Public Choice And Public Ideals, Ronald F. Wright

ExpressO

The quality of criminal defense counsel desperately needs improving. The strategy this article explores is not a change in the legal standard governing ineffective assistance of counsel claims, or a change in the Supreme Court's reasoning, but something far more fundamental: money. I ask whether it is feasible to link the funding available for defense lawyers to the money that the government spends on prosecution lawyers - in other words, parity of resources.

For reasons described in this article, resource parity will probably not come from the courts, at least not if they act alone. Major funding changes like this …

Department Of Justice Guidelines: Balancing "Discretionary Justice", Ellen S. Podgor

ExpressO

No abstract provided.

The Self-Incrimination Clause Explained And Its Future Predicted, Ronald J. Allen

ExpressO

No abstract provided.

Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel

ExpressO

This paper traces how the Supreme Courts of Canada and the United States have each used the basic guarantee of adjudicative fairness in their respective constitutions to effect revolutions in their countries’ criminal justice systems, through two different jurisprudential models for this development. It identifies a relationship between two core constitutional structures, the basic guarantee and enumerated rights, and shows how this relationship can affect the degree to which entrenched constitutional rights actually protect individuals. It explains that the different models for the relationship between the basic guarantee and enumerated rights adopted in Canada and the United States, an “expansive …

The Coherence Of Orthodox Fourth Amendment Jurisprudence, Samuel C. Rickless

ExpressO

In the legal academy it is widely believed that the U.S. Supreme Court's orthodox (post-Katz, pre-Houghton) fourth amendment jurisprudence is theoretically incoherent. In particular, the Court has been criticized (on doctrinal and textual grounds) for accepting (i) Justice Harlan's definition of a "search" as an infringement of a subjective expectation of privacy that society is prepared to recognize as reasonable, (ii) the Warrant Requirement and Probable Cause Requirement (according to which searches and seizures without a warrant or probable cause are presumptively unreasonable), and (iii) the Exclusionary Rule (according to which any evidence obtained in violation of a person’s fourth …

Universal Jurisdiction And Drug Trafficking: A Tool For Fighting One Of The World's Most Pervasive Problems , Anne H. Geraghty

ExpressO

Universal jurisdiction allows any state to exercise jurisdiction to prosecute a suspect wherever he is found, regardless of the location of his crimes, his nationality, or any other contacts with the prosecuting state. This article proposes that the United States and the international community should take two major steps toward embracing universal jurisdiction as a possible means of combatting drug trafficking. First, states should adopt an additional protocol to the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances clearly establishing universal jurisdiction for drug trafficking and thereby filling jurisdictional gaps in existing treaty law. Second, …

Barbarians At The Gates: A Post-September 11th Proposal To Rationalize The Laws Of War, William C. Bradford

ExpressO

My article, Barbarians at the Gates: A Proposal to Rationalize the Laws of War.  The piece proposes that in the War on Terror a new approach to the laws of war is necessary to harmonize the functional purpose of the law of war with the nature of the threat presented by terrorism to civilization.

Freedom From Fear: Prosecuting The Iraqi Regime For The Use Of Chemical Weapons, Margaret A. Sewell

ExpressO

Since the recent war with Iraq, there is a lingering question as to how to prosecute Saddam Hussein (if captured) and the Iraqi regime for their past atrocities, particularly, the use of chemcial weapons against Iran during the Iran-Iraq War and the Kurds. This article provides a background of the crimes committed by the Iraqi regime, a discussion and recommendation of the various proseution fora, as well as a presentation of the evidence that can be used in a prosecution.

The Last Line Of Defense: The Doctrine Of Command Responsibility, Gender Crimes In Armed Conflict, And The Kahan Report (Sabra & Shatilla), Sherrie L. Russell-Brown

ExpressO

“THE LAST LINE OF DEFENSE” addresses using the doctrine of command responsibility - the doctrine according to which military and non-military leaders can be held individually criminally responsible for the crimes committed by their subordinates - before the International Criminal Court (ICC) as a way to prevent gender crimes in armed conflict. The prevention of gender crimes in armed conflict is an important issue for a variety of reasons. One extremely important reason is the connection that the United Nations has cited between the AIDS pandemic in Sub-Saharan Africa and rape in armed conflict. In addition, in the August 25, …

Summary Of Camacho V. State, 119 Nev. Adv. Op. No. 47, Hilary Barrett

Nevada Supreme Court Summaries

Appeal from a judgment of conviction and sentence entered after a guilty plea.

Toward A Criminal Law For Cyberspace: Distributed Security, Susan Brenner

ExpressO

The article analyzes the structure and evolution of the current, traditional model of law enforcement and explains why this model is not an effective means of addressing computer-facilitated criminal activity. It begins by analyzing the operation of rules in collective systems composed of biological or artificial entities; it explains that every such system utilizes basic, constitutive rules to maintain both internal and external order. The article explains that intelligence has a profound effect upon a system’s ability to maintain internal order. Intelligence creates the capacity for deviant behavior, i.e., the refusal to abide by constitutive rules, and this requires the …

Marital Immunity, Intimate Relationships, And Improper Inferences: A New Law On Sexual Offenses By Intimates , Michelle J. Anderson

Working Paper Series

Today, to one degree or another, marital immunity for sexual offenses persists in over half the states. Underlying the marital rape immunity has been the assumption that when a woman enters into a marriage, she is giving her ongoing consent to sexual intercourse. Professor Michelle Anderson argues that states must abolish this immunity to make the law formally neutral on the marital status of the parties. However, Professor Anderson argues, such formal neutrality is insufficient. The ideology of ongoing consent underlying the marital rape immunity has infected the way the legal system treats sexual offenses among intimates who are not …

Killing The Object: Psychosis And The Criminal Act, Linda Belau

Cardozo Law Review

No abstract provided.

The Smell Of A Murderer: How Not To Give Way On Your Enjoyment, Parveen Adams

Cardozo Law Review

No abstract provided.

Lacan And The Discourse Of Science In Law, David S. Caudill

Cardozo Law Review

No abstract provided.

The Real Of Crime: Psychoanalysis And Infanticide, Renata Salecl

Cardozo Law Review

No abstract provided.

Access To Search Warrant Materials: Balancing Competing Interests Pre-Indictment, Michael D. Johnson, Anne E. Gardner

University of Arkansas at Little Rock Law Review

No abstract provided.

The Conviction Of Andrea Yates: A Narrative Of Denial, Sherry F. Colb

Rutgers Law School (Newark) Faculty Papers

This piece discusses the case of Andrea Yates, the woman who confessed to drowning her five children to death and was subsequently convicted of murder (though the conviction has since been overturned). In this piece, Colb contends that Andrea Yates was convicted because of the jurors’ emotional/psychological response to the possibility that post-partum psychosis could cause an otherwise decent person to commit such brutal acts. As a symptom of denial, Colb argues, the jury rejected the insanity defense and thereby reassured itself that only evil people could do what Yates did. If that were the case, then it would be …

Cultural Heritage And Identity, Lucille A. Roussin

Cardozo Journal of International and Comparative Law

The article explores the intersection of "cultural property" and "cultural heritage," arguing that while cultural property refers to specific, legally defined objects of historical or scientific significance, cultural heritage encompasses a broader, collective concept tied to identity, history, and public interest. The article highlights how these concepts increasingly overlap, particularly in cases involving restitution, indigenous rights, and the commodification of cultural artifacts. It emphasizes the need for harmonized national and international legal frameworks to address these issues effectively.

Summary Of State V. Bayard, 119 Nev. Adv. Op. No. 29, Melanie Koep

Nevada Supreme Court Summaries

Expedited appeal from an order of the Second Judicial District Court, State of Nevada, granting a motion to suppress evidence of narcotics obtained by searching defendant after arrest for two minor traffic violations.-flas

It's Not Just For Law School Anymore: Clinical Education On The Death Penalty For Undergraduates, Jon Gould

Journal of Legal Education

No abstract provided.

Addressing Sexual Misconduct In Community Corrections_June 2-4, 2003, Brenda V. Smith

Presentations

No abstract provided.

Justice Under Attack: The Federal Government's Assault On The Attorneyclient Privilege, Robert J. Anello

Cardozo Public Law, Policy & Ethics Journal

The article argues that the federal government, particularly through the Department of Justice, has launched a multi-faceted assault on the attorney-client privilege, undermining its protections. Recent laws, rules, and policies, such as the Attorney General's monitoring rules for inmate communications and the Department of Justice's guidelines pressuring corporations to waive privilege, threaten the confidentiality essential to the attorney-client relationship. These actions, often justified under the guise of national security and combating corporate fraud, erode constitutional rights and the adversarial system of justice.

Punishing The Faithful: Freud, Religion, And The Law, Davida A. Williams

Cardozo Law Review

No abstract provided.

Taint Teams And Firewalls: Thin Armor For Attorney-Client Privilege, Heidi Boghosian

Cardozo Public Law, Policy & Ethics Journal

The article argues that post-9/11 U.S. government policies, particularly the monitoring of attorney-client communications and the indictment of Lynne Stewart, significantly erode the attorney-client privilege and the Sixth Amendment right to effective counsel. These actions, justified under national security, undermine constitutional protections and set a dangerous precedent for legal representation, especially for controversial or politically sensitive cases.

A Practice Commentary To Judiciary Law Article 19, Lawrence N. Gray

Cardozo Public Law, Policy & Ethics Journal

The article critically examines New York’s Judiciary Law Article 19, which governs contempt powers, highlighting its complexities, contradictions, and need for reform. It argues that the law conflates criminal and civil contempt, creating confusion in procedure and substance, and that the judiciary’s inherent power to define crimes undermines legislative authority. Additionally, the article addresses the intersection of contempt law with constitutional rights, particularly the Sixth Amendment and news media privileges, emphasizing the need for clarity and modernization of the statute.