Criminal Procedure Commons^™

Is It Ever Too Late For Innocence? Finality, Efficiency, And Claims Of Innocence, George C. Thomas Iii, Gordon G. Young, Keith Sharfman, Kate B. Briscoe

Faculty Publications

(Excerpt)

[Does it violate the Constitution] to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be "actually innocent." ... [l]t is perfectly clear what the answer is: There is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.

Justice Scalia, joined by Justice Thomas, concurring in Herrera v. Collins.

Should innocent people be imprisoned as criminals? More …

Invisible Targets: Juvenile Prostitution, Crackdown Legislation, And The Example Of California, Pantea Javidan

Cardozo Journal of Equal Rights & Social Justice

The article examines the contradiction in California's legal framework where minors are criminalized for prostitution under California Penal Code section 647(b), despite being legally incapable of consenting to sex. It argues that such laws fail to protect child prostitutes, who are often victims of exploitation, and instead perpetuate their harm by punishing them rather than addressing the root causes of their situation.

The Silencing Of A Woman's Choice: Mandatory Arrest And No Drop Prosecution Policies In Domestic Violence Cases, Jessica Dayton

Cardozo Journal of Equal Rights & Social Justice

The article critiques mandatory arrest and no-drop prosecution policies in domestic violence cases, arguing that these policies undermine the autonomy of women by taking away their right to make decisions about their own safety and legal actions. The author advocates for a more flexible, victim-centered approach that respects each woman's unique circumstances and empowers her to make informed choices.

The Closet Becomes Darker For The Abused: A Perspective On Lesbian Partner Abuse, Marnie J. Franklin

Cardozo Journal of Equal Rights & Social Justice

The article argues that lesbian partner abuse is systematically overlooked in both academic discourse and legal systems, which predominantly rely on heteronormative frameworks that fail to account for same-sex relationships. This exclusion perpetuates the marginalization of abused lesbians, who face unique barriers due to societal homophobia, internalized shame, and the legal system's reliance on heterosexual models of domestic violence.

Creating A New Tango: Re-Imagining Gender, Phyllis Goldfarb

Cardozo Journal of Equal Rights & Social Justice

The article explores how feminist legal theory is applied and developed through case studies and media analysis, emphasizing the interplay between theory and practice. It highlights the need to challenge traditional gender hierarchies and the role of media in shaping gender perceptions, advocating for a reimagined understanding of gender roles.

The Fault Lines Of Domestic Violence Enforcement, Josephine Ross

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

How The Overturn Of The Child Pornography Prevention Act Under Ashcroft V. Free Speech Coalition Contributes To The Protection Of Children, Emily D. Goldberg

Cardozo Journal of Equal Rights & Social Justice

The note examines the Supreme Court's decision in Ashcroft v. Free Speech Coalition, which struck down portions of the Child Pornography Prevention Act (CPPA) as unconstitutional under the First Amendment. The Court ruled that the CPPA's ban on virtual child pornography was overbroad, as it prohibited lawful speech that could have artistic, literary, or scientific value. The decision highlights the tension between protecting children from exploitation and safeguarding free speech, ultimately emphasizing the importance of allowing narratives that confront and address difficult issues like child sexual abuse.

Reconceptualizing Criminal Law Defenses, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In 1933, one of the leading theorists of the criminal law, Jerome Michael, wrote openly of the criminal law "as an instrument of the state." Today, criminal law is largely allergic to claims of political theory; commentators obsess about theories of deterrence and retribution, and the technical details of model codes and sentencing grids, but rarely speak of institutional effects or political commitments. In this article, the author aims to change that emphasis and to examine the criminal law as a tool for governance. Her approach is explicitly constructive: it accepts the criminal law that we have, places it in …

Two Sides Of A "Sargasso Sea": Successive Prosecution For The "Same Offence" In The United States And The United Kingdom, Lissa Griffin

University of Richmond Law Review

No abstract provided.

Anger And Intent For Murder: The Supreme Court Decisions In R. V. Parent, Joanne Klineberg

Osgoode Hall Law Journal

In R v. Parent, the Supreme Court of Canada recently held that intense anger alone is not, of itself, a defence to murder, although anger does play a role in reducing murder to manslaughter in connection with the defence of provocation. The Court's brief decision ignores twenty years of contrary jurisprudence and fails to provide detailed reasons for its conclusion, resulting in uncertainty about the scope and application of the decision. In this article, the author explores the relationship between anger and intent for murder, and outlines some possible arguments the Court could have relied on that would have provided …

By Any Means Necessary: Evaluating The Effectiveness Of Texas' Dna Testing Law In The Adjudication Of Free-Standing Claims Of Actual Innocence, Daryl E. Harris

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Retribution For Rats: Cooperation, Punishment, And Atonement, Michael A. Simons

Vanderbilt Law Review

To mobsters, he is a "rat"; to drug dealers, a "snitch." To school children, he is a "tattletale"; to corporate executives, a "whistle- blower." To cops, he is an "informant"; to prosecutors, a "cooperator." By whatever name he is known, the person who betrays his associates to the authorities is almost universally reviled. In movies, on television, in literature, the cooperator embodies all that society holds in contempt: he is disloyal, deceitful, greedy, selfish, and weak. The cooperator, though, has long been a mainstay of our criminal justice system. For centuries, criminal defendants have received leniency in return for testimony …

The Middle Class Fourth Amendment, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

Misuse Of Scientific Evidence By Prosecutors, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The prosecutor's misuse of scientific evidence to charge and convict has not been sufficiently examined. Courts and commentators critiquing abuses of scientific evidence in criminal cases rarely focus on the prosecutor's role in the process. Issues typically discussed are the questionable nature of the evidence, the controversial manner in which the evidence was acquired and tested, whether the expert arrived at her conclusions in a scientifically reliable manner, and whether the expert's courtroom testimony was false or misleading. The prosecutor's control over and manipulation of the scientific evidence to shape the fact-finder's evaluation of the facts and to persuade the …

Rationalizing The Commission: The Philosophical Premises Of The U.S. Sentencing Guidelines, Aaron J. Rappaport

Faculty Scholarship

No abstract provided.

Unprincipled Punishment: The U.S. Sentencing Commission's Troubling Silence About The Purposes Of Punishment, Aaron J. Rappaport

Faculty Scholarship

No abstract provided.

Decoupling 'Terrorist' From 'Immigrant': An Enhanced Role For The Federal Courts Post 9/11, Victor C. Romero

Faculty Scholarship

Since the terrorist attacks of September 11, 2001, Attorney General John Ashcroft has utilized the broad immigration power ceded to him by Congress to ferret out terrorists among noncitizens detained for minor immigration violations. Such a strategy provides the government two options: deport those who are not terrorists, and then prosecute others who are. While certainly efficient, using immigration courts and their less formal due process protections afforded noncitizens should trigger greater oversight and vigilance by the federal courts for at least four reasons: First, while the legitimate goal of immigration law enforcement is deportation, Ashcroft's true objective in targeting …

Death By Any Other Name: The Federal Government's Inconsistent Treatment Of Drugs Used In Lethal Injections And Physician-Assisted Suicide, Colin Miller

Journal of Law and Health

While the FDA is under no legal obligation to regulate the drugs used in executions, these recent developments certainly create a moral imperative requiring review. This paper will argue that the federal government cannot consistently refrain from regulating lethal injection drugs while arguing for prosecution of those prescribing drugs to be used by patients in assisted suicide. Part II will look at the opinions in Chaney and the factors behind the FDA's decision not to regulate the drugs used in executions. Part III will look at Oregon's Death with Dignity Act and its authorization by the Supreme Court. Parts IV-VI …

Beyond The Bright Line: A Contemporary Right-To-Counsel Doctrine, Pamela R. Metzger

Faculty Journal Articles and Book Chapters

The current right-to-counsel doctrine was developed in the 1970's. It created a bright-line rule still in effect today. The right to counsel attaches only at "critical stages" of a criminal prosecution. Under this critical stage doctrine, the right to counsel only attaches after the initiation of formal adversary proceedings and only applies to confrontations between the accused and the prosecution or law enforcement. In the years following the Supreme Court's development of the critical stage doctrine, national trends of mandatory sentencing and sentencing guidelines revolutionized criminal procedure and dramatically altered the roles of the system's key players.

Now, defense counsel's …

Puppy Love: Bioterrorism, Civil Rights, And Public Health, George J. Annas

Faculty Scholarship

Florida has been the state humorists most like to make fun of since the 2000 presidential election, especially when it comes to politics. And humorists are almost the only commentators who can be counted on to tell us the truth about the state of American politics today. When Californians decided to recall their Governor, for example, Conan O'Brien observed: "Yesterday Arnold Schwarzenegger announced he would run for governor of California. The announcement was good news for Florida residents, who now live in the second-flakiest state in the country."' And when more than 200 people filed to run for Governor, Jay …

Summary Of Salazar V. State, Rick Rawson

Nevada Supreme Court Summaries

Appeal from district court judgment of conviction on one count of battery with use of a deadly weapon with substantial bodily harm, one count of battery with a deadly weapon, and one count of mayhem with use of a deadly weapon.

Summary Of West V. State, Amanda Yen

Nevada Supreme Court Summaries

On February 5, 2001, the general manager of Canyon Gate Mini Storage discovered the decomposing body of Christine Smith in the storage unit owned by Smith and her daughter, appellant Brookey Lee West. Smith’s body was sealed in a garbage can wrapped with duct tape, garbage bags and cellophane wrap. A white plastic bag, knotted at the back of her head, covered Smith’s nose and mouth. Upon searching West’s apartment, police discovered Smith’s bank statements. The police determined that there were numerous ATM withdrawals on Smith’s bank account after February 1998, when Smith was last seen alive. West was charged …

A Healer Or An Executioner: The Proper Role Of A Psychiatrist In A Criminal Justice System, Gregory Dolin

All Faculty Scholarship

This article argues that despite the benefits of ridding the criminal justice system of some uncertainty and ignorance with respect to mental health issues, the very close involvement of psychiatrists in the criminal justice system as practiced in the United States is not only illogical and bad policy, but also unethical from the viewpoint of medical ethics. Part II of this article will lay the groundwork for the argument by discussing the history of the insanity defense, and of science's involvement with criminal justice; while Part III, will look into the association of science and the administration of justice in …

The Andrea Yates Trial: What Is Wrong With This Picture?, Marie Galanti

Cardozo Journal of Equal Rights & Social Justice

The article critically examines the Andrea Yates trial, arguing that it highlights significant flaws in the legal system, media coverage, and societal attitudes toward mental illness and gender roles. The trial underscores the ambiguity in legal definitions of insanity, the unequal treatment of mothers who commit infanticide, and the problematic intersection of law and media, which can undermine justice and perpetuate harmful stereotypes. The case serves as a cautionary tale about the failure of the legal system to address mental health adequately and the media's role in sensationalizing tragedy for public consumption.

The Evolution Of The United Nations Position On Terrorism: From Exempting National Liberation Movements To Criminalizing Terrorism Wherever And By Whomever Committed, Malvina Halberstam

Articles

No abstract provided.

Affirming Brahimi: East Timor Makes The Case For A Model Criminal Code, Megan A. Fairlie

Faculty Publications

In August of 2000, the Report of the Panel on United Nations Peace Operations (the “Brahimi Report”) considered the issue of transitional civil administration as an element of United Nations field operations. The Brahimi Report recommended the creation of an interim legal code as part of a U.N. justice package so that any future UN transitional administrations would be able to address the issue of “applicable law” in the early stages of its mission. Using the experience of the United National Transitional Administration in East Timor (UNTAET) as a case study, this article establishes how and why a complete model …

Einstein On The Bench?: Exposing What Judges Do Not Know About Science And Using Child Abuse Cases To Improve How Courts Evaluate Scientific Evidence, Joelle A. Moreno

Faculty Publications

It has been a decade since the Supreme Court made judges the arbiters of scientific validity through Daubert v. Merrell Dow Pharmaceuticals, Inc. Although this decision was intended to improve how courts use science, recent empirical evidence reveals that judges continue to struggle with scientific evidence and that Daubert has failed to yield accurate or consistent decisions. This also means that judges have received little useful guidance from ten years of academic literature expounding on the science-law chasm.

If the academic discourse is not helpful, it may be because non-scientists too often try to tame science by treating it as …

From A Biopolitical Point Of View: Nietzsche's Philosophy Of Crime, Friedrich Balke

Cardozo Law Review

No abstract provided.

Summary Of Daniel V. State, Clarke Walton

Nevada Supreme Court Summaries

Appellant, Donald M. Mosely, shot and killed Frederick Washington and Mark Payne. At the same time, Terhain Woods and Antione Hall were also shot by Mosely, but both survived. On July 28, 1997, Moseley was convicted in district court of firstdegree murder, attempted murder with use of a deadly weapon, and burglary while in possession of a firearm. During Mosely’s trial, a number of errors occurred, which brought rise to this appeal. Because of these cumulative errors, the Nevada Supreme Court reversed appellant’s conviction and remanded the case for a new trial. In analyzing the issues raised by appellant on …

Summary Of Hathaway V. State, Melanie Koep

Nevada Supreme Court Summaries

Proper person appeal from an order of the Eighth Judicial District Court, Honorable John S. McGroarty, denying appellant’s post-conviction petition for writ of habeas corpus.