Criminal Procedure Commons^™

Reviving Tocqueville's America: The Rehnquist Court's Jurisprudence Of Social Discovery, John O. Mcginnis

Articles

This Article offers a retrospective on the Rehnquist Court. It argues that the Rehnquist Court has been pursuing a coherent jurisprudence that invigorates decentralization and the private ordering of social norms that Alexis De Tocqueville celebrated in Democracy in America as being the essence of the social order generated by our original Constitution. In four disparate areas-federalism, freedom of association, the religion clauses, and the balance of power between juries and judges-the Court is helping sustain a civil order that bubbles up from state governments or from citizens voluntarily gathered together or randomly selected. The Article is the first to …

Amusing Monsters, Anthony Paul Farley

Cardozo Law Review

No abstract provided.

Juries, Drug Laws & Sentencing (Symposium), Nancy S. Marder

All Faculty Scholarship

No abstract provided.

A Canadian Perspective On The Role Of Cooperators And Informants, Steven Skurka

Cardozo Law Review

No abstract provided.

Thinking Outside The Box: How The Enforcement Of Ethical Rules Can Minimize The Dangers Of Prosecutorial Leniency And Immunity Deals, Michael S. Ross

Cardozo Law Review

No abstract provided.

White-Collar Cooperators: The Government In Employer-Employee Relationships, Ellen S. Podgor

Cardozo Law Review

No abstract provided.

What Is True? Perspectives Of A Former Prosecutor, Steven M. Cohen

Cardozo Law Review

No abstract provided.

Closing Remarks, Barry Scheck

Cardozo Law Review

No abstract provided.

Terrorist Crime, Taliban Guilt, Western Victims, And International Law, Mark A. Drumbl

Scholarly Articles

On September 11th, 2001, al-Qaeda terrorists attacked the United States and killed approximately 3,000 civilians from 81 countries. Traditionally, international law treats armed attacks differently than criminal attacks. States launch armed attacks against other states; organized insurgency movements having some level of command or political structure also may launch internal armed attacks against state governments. Individuals or groups, on the other hand, initiate criminal attacks. The law responds to criminal attacks through investigation and trial. The law permits states to use force against other states in self-defense to armed attacks.The September 11th attack was a war-like attack undertaken against a …

Applying Apprendi To The Federal Sentencing Guidelines: You Say You Want A Revolution?, Susan Herman

Faculty Scholarship

No abstract provided.

Using Excited Utterances To Prosecute Domestic Violence In New York: The Door Opens Wide, Or Just A Crack?, Brooks Holland

Cardozo Journal of Equal Rights & Social Justice

The article discusses the use of excited utterances as a hearsay exception in domestic violence prosecutions, particularly in the case of *People v. Lopez*. It highlights how this precedent allows prosecutors to use such statements without the complainant's testimony, which is crucial in cases where victims often refuse to cooperate. The author cautions against over-reliance on this exception, emphasizing the need to balance the prosecution's interests with the defendant's right to confront their accuser under the Confrontation Clause.

How To Construct An Underclass, Or How The War On Drugs Became A War On Education, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

The war on drugs has spawned a second front-a war on education. The casualties of this war are all poor or lower-income people who cannot afford to buy a private education. This article details the consequences of this other war, and explores some legislative and litigation strategies for reclaiming educational opportunity for all Americans. First, however, we must set out in more detail the laws and policies that now deploy educational privation as punishment in public schools, colleges, and prisons.

One Small Step For Women: Female-Friendly Provisions In The Rome Statute Of The International Criminal Court, Rana R. Lehr-Lehnardt

Faculty Works

No abstract provided.

Opting For Real Death Penalty Reform, James S. Liebman

Faculty Scholarship

The capital punishment system in the United States is broken. Studies reveal growing delays nationwide between death sentences and executions and inexcusably high rates of reversals and retrials of capital verdicts. The current system persistently malfuinctions because it rewards trial actors, such as police, prosecutors, and trial judges, for imposing death sentences, but it does not force them either to avoid making mistakes or to bear the cost of mistakes that are made during the process. Nor is there any adversarial discipline imposed at the trial level because capital defendants usually receive appointed counsel who either do not have experience …

A Broken System, Part Ii: Why There Is So Much Error In Capital Cases And What Can Be Done About It, James S. Liebman, Jeffrey A. Fagan, Andrew Gelman, Valerie West, Garth Davies, Alexander Kiss

Faculty Scholarship

There is growing awareness that serious, reversible error permeates America’s death penalty system, putting innocent lives at risk, heightening the suffering of victims, leaving killers at large, wasting tax dollars, and failing citizens, the courts and the justice system.

Our June 2000 Report shows how often mistakes occur and how serious it is: 68% of all death verdicts imposed and fully reviewed during the 1973-1995 study period were reversed by courts due to serious errors.

Analyses presented for the first time here reveal that 76% of the reversals at the two appeal stages where data are available for study were …

Rates Of Reversible Error And The Risk Of Wrongful Execution, James S. Liebman

Faculty Scholarship

Innocent fatalities are a concern of all social activity with a capacity to kill. This is especially true when the social activity is the death penalty since an innocent person's execution is not simply a tragic collateral consequence of activity with a non-fatal objective. Instead, the taking of life is the goal of the enterprise, and the killing is the intended act of the state.

There is another difference between accidental fatalities in other social activities and those that occur when the capital system miscarries. Typically, the former fatalities are easy to spot and quantify; the latter are not. Precisely …

This Will Hurt Me More Than It Hurts You: Social And Legal Consequences Of Criminalizing Delinquency, Jeffrey Fagan

Faculty Scholarship

What happens to adolescents once placed in the criminal justice system and the potential violations of human rights that ensue is the focus of this essay. The pace of change, the severity of the new laws, the potential for unintended negative outcomes, and the empirical reality of adult punishment of juvenile offenders creates new urgency to these questions. Unfortunately, there has been little analysis of the comparative effects of statutes and administrative laws that relocate juvenile offenders to the adult court, and there has been virtually no research on the efficacy, impact and consequences of sentencing juveniles as adults. There …

Editor's Observations: The Geology Of Drug Policy In 2002, Frank O. Bowman Iii

Faculty Publications

Public concern about drug abuse as a major issue in American life may be ebbing. The notion that "the drug war is a failure" has become the common wisdom in academic and journalistic circles. Support for routine and lengthy imprisonment of non-violent drug offenders may be eroding, even among the prosecutors, police, and judges whose job it is to enforce the law. Anger among African American, Latino, and other minority communities at the perceived discriminatory enforcement of drug laws is simmering and may begin to boil over in ways that effect the political terrain. And after the events of September …

Quiet Rebellion Ii: An Empirical Analysis Of Declining Federal Drug Sentences Including Data From The District Level With Michael Heise, Frank O. Bowman Iii, Michael Heise

Faculty Publications

This is the second of two articles in which we seek an explanation for the hitherto unexamined fact that the average length of prison sentences imposed in federal court for narcotics violations declined by more than 15% between 1991-92 and 2000.

Treat Your Women Well: Comparisons And Lessons From An Imperfect Example Across The Waters, Rana R. Lehr-Lehnardt

Faculty Works

A young woman could not endure another night with the elderly man she was forced to marry, so she slipped out of the house and spent the night with the young man she had loved for years and desperately wanted to marry. When the woman's father learned of the illicit behavior, he entered the police station where she had sought refuge and fired four shots at her. He shed his daughter's blood to cleanse the family's honor. Jordan, 1999

A jealous husband returned home from an evening at the mosque and accused his pregnant wife of having an affair. The …

Witness Coaching By Prosecutors, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Given its controversial nature, one would expect the practice and ethics of witness coaching to have attracted close scrutiny by courts and commentators. Interestingly, however, the subject has received relatively modest attention. A handful of judicial and ethics opinions have discussed superficially the subject of witness preparation and coaching. Practitioner manuals typically offer general guidance on how to prepare witnesses, and occasionally address tactical and ethical issues involved in coaching. Scholarly commentary has examined the ethical limits of witness preparation, particularly by differentiating acceptable techniques from improper techniques, which promote false or misleading testimony. In addition, popular culture occasionally has …

Rape By Drugs: A Statutory Overview And Proposals For Reform, Patricia J. Falk

Law Faculty Articles and Essays

The methods by which human beings accomplish nonconsensual sexual activity with fellow humans are almost limitless. They use physical force; they beat, choke, and knock their victims unconscious. They kidnap and restrain them. They use weapons and threats of immediate force to subdue their quarry. They come in groups with the superior strength of their number. They exploit the element of surprise. They coerce, extort, and blackmail others into sexual submission. They lie, pretend, impersonate, and defraud, trapping the unwary in webs of deceit. They victimize mentally ill, mentally disabled, physically weak, and physically incapacitated persons. They abuse their positions …

Quiet Rebellion Ii: An Empirical Analysis Of Declining Federal Drug Sentences Including Data From The District Level, Frank O. Bowman, Michael Heise

Cornell Law Faculty Publications

This is the second of two articles in which we seek an explanation for the hitherto unexamined fact that the average length of prison sentences imposed in federal court for narcotics violations declined by more than 15% between 1991-92 and 2000.

Our first article, Quiet Rebellion? Explaining Nearly a Decade of Declining Federal Drug Sentences, 86 Iowa Law Review 1043 (May 2001) ( "Rebellion I" ), examined national sentencing data in an effort to determine whether the decline in federal drug sentences is real (rather than a statistical anomaly), and to identify and analyze possible causes of the decline. We …

The Scottsboro Trials: A Legal Lynching, Faust Rossi

Cornell Law Faculty Publications

No abstract provided.

Twenty-Five Years Of Death: A Report Of The Cornell Death Penalty Project On The "Modern" Era Of Capital Punishment In South Carolina, John H. Blume

Cornell Law Faculty Publications

In 1972, the United States Supreme Court determined that the death penalty, as then administered in this country, violated the Eighth Amendment's prohibition against cruel and unusual punishment. Many states, including South Carolina, scurried to enact new, "improved" capital punishment statutes which would satisfy the Supreme Court's rather vague mandate. In 1976, the High Court approved some of the new laws, and the American death penalty was back in business. After a wrong turn or two, including a statutory scheme which did not pass constitutional muster, the South Carolina General Assembly passed the current death penalty statute in 1977. The …

A Question Of Revenge: Munchausen Syndrome By Proxy And A Proposed Diminished Capacity Defense For Homicidal Mothers, E. Selene Steelman

Cardozo Journal of Equal Rights & Social Justice

The note argues that Munchausen Syndrome by Proxy (MSBP) should be legally recognized as a severe mental disorder, allowing defendants to use a diminished capacity defense in cases of accidental filicide. The author critiques the legal system's inconsistent treatment of MSBP, which often focuses on the physical harm to the child while neglecting the mother's mental state. By acknowledging MSBP as a psychiatric disorder, the law could achieve more nuanced outcomes that consider both the act and the defendant's mental condition, reducing stigma and promoting fairness in criminal liability assessments.

The Jury's Role In Administering Justice In The U.S. Introduction To Saint Louis Public Law Review Jury Issue, Stephen C. Thaman

All Faculty Scholarship

This introduction to the special jury issue of Saint Louis University’s Public Law Review briefly discusses the Conference “Lay Participation in the Criminal Trial in the Twenty-First Century,” in which all of the contributors to this issue participated. The conference took place at the International Institute for Higher Studies in the Criminal Sciences in Siracusa, Italy from May 25-29, 1999. It also discusses select papers and perspectives on the American jury system published in this issue of the journal.

Official Privilege: State Security And The Right To A Fair Trial In The Usa, Stephen C. Thaman

All Faculty Scholarship

The emphasis of this paper is on the effect of the state claiming a privilege of national security in a criminal case, either to: (1) prevent the defendant from gaining discovery of classified information which could be important in defending against the criminal charges; or (2) prevent the defendant from introducing classified evidence in his/her own defense, access to which has usually been gained by virtue of the defendant’s own activity with the intelligence services (CIA, FBI) or other police agencies. The state often claims national security in situations where the state itself is either dealing with criminals or using …

Book Review. Courts And Transition In Russia: The Challenge Of Judicial Reform, By Peter H. Solomon, Jr. And Todd S. Foglesong, Stephen C. Thaman

All Faculty Scholarship

This is a book review applauding Peter H. Solomon and Todd S. Foglesong’s book Courts and Transition in Russia: The Challenge of Judicial Reform, written by Professor Stephen C. Thaman. Professor Thaman provides his thoughts on the possibility of Russian reform success.

Latin America's First Modern System Of Lay Participation: The Reform Of Inquisitorial Justice In Venezuela, Stephen C. Thaman

All Faculty Scholarship

This article describes the new Venezuelan jury and mixed court systems that were introduced by Codigo Organico Procesal Penal in 1998, in the context of the code’s radical transition to accusatorial and adversarial procedure.