Criminal Procedure Commons^™

Illinois Takes Bold Steps To Revolutionize Capital Litigation, Thomas M. Lombardo

Public Interest Law Reporter

No abstract provided.

Restorative Justice And Collective Responsibility: Lessons For And From The Rwandan Genocide, Mark A. Drumbl

Scholarly Articles

Genocide struck Rwanda in 1994. Since then, national and international trials have endeavored to promote reconciliation, deterrence, peace, justice, and human rights. This article posits a disconnect between these trials and the attainment of their avowed goals. This disconnect emerges in part from the influential agendas of international lawyers who equate selective criminal prosecution with the "rule of law" and espouse criminal prosecution as the preferred and uniform response to mass atrocity. Creating a presumption in favor of criminal prosecution has dampened the need to explore whether such trials actually are suitable for the particular afflicted society. A socio-legal analysis …

Going To The Bullpen: Using Uncle Sam To Strike Out Professional Sports Violence, Kevin A. Fritz

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Impossible Dream Come True: A Criminal Law Professor Becomes Juror #7, Stacy Caplow

Faculty Scholarship

No abstract provided.

Street Crime, Corporate Crime, And Theories Of Punishment: A Response To Brown, Kyron J. Huigens

Articles

In this response to Darryl Brown's important article, Street Crime, Corporate Crime, and the Contingency of Criminal Liability, Professor Huigens argues that Brown has chosen the wrong theory of punishment on which to rest his case for a more regulatory, less punitive, approach to street crime. Brown has chosen the best, most sophisticated consequentialist theory of punishment, as developed principally by Dan Kahan. However, consequentialist punishment theory of any kind has a significant drawback: it has no plausible conception of criminal fault. As a result, Brown is constrained to argue that the language of desert and retribution should be muted …

Solving The Apprendi Puzzle, Kyron Huigens

Articles

No abstract provided.

And The Walls Came Tumbling Down: Sharing Grand Jury Information With The Intelligence Community Under The Usa Patriot Act, Jennifer M. Collins

Faculty Journal Articles and Book Chapters

No abstract provided.

War Stories, Jessica Litman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Writ Of Habeas Corpus, Donald E. Wilkes Jr.

Scholarly Works

A fundamental legal safeguard of freedom and the most important English common law writ, the writ of habeas corpus is a court order commanding that an imprisoned person be personally produced in court and that an explanation be provided as to why that person is detained. The writ of habeas corpus provides a judicial remedy for enforcing a fundamental individual right, the right to personal liberty, which may be defined as the right to be free of physical restraint that is not justified by law. Whenever imprisonment violates a constitutional or fundamental right, there is an infringement of the right …

The Dangers Of Mediation In Domestic Violence Cases, Sarah Krieger

Cardozo Journal of Equal Rights & Social Justice

The note argues that mandatory mediation in family law cases involving domestic violence undermines the progress made by the battered women's movement by re-privatizing domestic violence issues. Mediation, while intended to resolve disputes amicably, fails to address the inherent power imbalance in abusive relationships and risks further victimizing survivors. The privatization of these disputes through mediation diminishes accountability for abusers and erodes legal protections for victims.

Responsibility In Capital Sentencing, Steven Semeraro

San Diego Law Review

Although modem doctrine is worth preserving, it could be improved significantly by focusing explicitly on heightening individual responsibility. Two concrete ways to improve it would be to (1) explain the sentencer' s role in the narrative voice, a way of speaking that, at least in American society, appears to be associated with the assignment of responsibility; and (2) require heightened scrutiny of death sentences by state appellate courts, bringing the responsibility of state appellate judges in capital cases in line with the responsibility they bear in constitutional cases dealing with analogous mixed questions of fact and law under the First, …

Balancing The Anonymity Of Threatened Witnesses Versus A Defendant’S Right Of Confrontation: The Waiver Doctrine After Alvarado, Joan Comparet-Cassani

San Diego Law Review

As this Article will show, the Alvarado holding is very narrow, requiring disclosure only when a witness is crucial to the prosecution and when the witness’s credibility is at issue.

The interesting issue left unresolved by Alvarado is whether the identity of a crucial witness whose credibility is not at issue must be disclosed to the defense at trial when the witness has been threatened and attacked by the defendant or at the defendant’s behest. Or, whether because of that intimidation, the defendant has waived his right of confrontation as to the witness’s identity. This question is ripe for exploration …

Glittery Promise Vs. Dismal Reality: The Role Of A Criminal Lawyer In The People's Republic Of China After The 1996 Revision Of The Criminal Procedure Law, Ping Yu

Vanderbilt Journal of Transnational Law

In this Article, the Author examines the recent revisions to the Chinese Criminal Procedure Law. The Author maintains that while the revisions were intended to promote a more equitable criminal justice system, the political climate in fact has rendered the revisions a step down for both defense attorneys and defendants. The Author analyzes different aspects of the revised law in order to support this point. In his conclusion, the Author suggests some changes to the criminal procedure law that may help to bring the Chinese defense system up to international standards.

Justice By The Numbers: The Supreme Court And The Rule Of Four-Or Is It Five?, Ira Robbins

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: In the early hours of April 14, 2000, Robert Lee Tarver died in Alabama's electric chair, even though four Justices of the United States Supreme Court had voted to review the merits of his case. This situation is not unique. Each year, practitioners and pro se litigants alike petition the Supreme Court without fully knowing the rules pursuant to which the Court will decide their client's, or their own, fate. The reason is that the Supreme Court operates under two sets of rules-those that are published and those that are not. The former specify This Article is based on …

I Want A Black Lawyer To Represent Me: Addressing A Black Defendant's Concerns With Being Assigned A White Court-Appointed Lawyer, Kenneth P. Troccoli

Scholarly Articles in Law Reviews & Journals

"I want a Black lawyer to represent me." These are the first words you hear after you introduce yourself to your new client. You have been appointed to represent this man on a criminal charge. You are white. He is Black. You answer that you are an experienced criminal lawyer and will represent him to the best of your ability, regardless of his or your race. He responds that he too is experienced with the criminal justice system-a system that targets Black men, like himself, for prosecution far more than whites, that sentences Black men to prison more frequently and …

Departing Ways: Uniformity, Disparity And Cooperation In Federal Drug Sentences, Michael A. Simons

Faculty Publications

(Excerpt)

In 1995, this law review sponsored a symposium entitled The Sentencing Controversy: Punishment and Policy in the War Against Drugs. That symposium's focus on sentencing was appropriate because, as one of the participants noted, "[s]entencing is the bottom line of the criminal justice system."  Six years later, as this current symposium makes clear, we are still waging "war" on drugs. And although this symposium is not devoted exclusively to punishment, sentencing is still a central—and vexing—battlefield in that war.

The war on drugs is fought on multiple fronts: education, treatment, interdiction, diplomacy and law enforcement. Law enforcement, however, …

The Uncommon Law: Insanity, Executions, And Oklahoma Criminal Procedure, Bryan Lester Dupler

Oklahoma Law Review

No abstract provided.

The Discretionary Power Of "Public" Prosecutors In Historical Perspective, Carolyn B. Ramsey

Publications

Norms urging prosecutors to seek justice by playing a quasi-judicial role and striving for fairness to defendants are often assumed to have deep historical roots. Yet, in fact, such a conception of the prosecutor's role is relatively new. Based on archival research on the papers of the New York County District Attorney's Office, "The Discretionary Power of 'Public' Prosecutors in Historical Perspective" explores the meaning of the word "public" as it applied to prosecutors in the nineteenth century. This article shows that, in the early days of public prosecution, district attorneys were expected to maximize convictions and leave defendants' rights …

The Pathological Politics Of Criminal Law, William J. Stuntz

Michigan Law Review

Substantive criminal law defines the conduct that the state punishes. Or does it? If the answer is yes, it should be possible, by reading criminal codes (perhaps with a few case annotations thrown in), to tell what conduct will land you in prison. Most discussions of criminal law, whether in law reviews, law school classrooms, or the popular press, proceed on the premise that the answer is yes. Law reform movements regularly seek to broaden or narrow the scope of some set of criminal liability rules, always on the assumption that by doing so they will broaden or narrow the …

Compelled Statements From Police Officers And Garrity Immunity, Steven D. Clymer

Cornell Law Faculty Publications

In this Article, Professor Steven Clymer describes the problem created when police departments require officers suspected of misconduct to answer internal affairs investigators' questions or face job termination. Relying on the Supreme Court's decision in Garrity v. New Jersey, courts treat such compelled statements as immunized testimony. That treatment not only renders such a statement inadmissible in a criminal prosecution of the suspect police officer, it also may require the prosecution to shoulder the daunting and sometimes insurmountable burden of demonstrating that its physical evidence, witness testimony, and strategic decisionmaking are untainted by the statement. Because police internal affairs …

A Hybrid Approach To The Use Of Deliberate Ignorance In Conspiracy Cases, Jessica A. Kozlov-Davis

Michigan Law Review

When hunted, the ostrich is said to run a certain distance and then thrust its head into the sand, thinking, because it cannot see, that it cannot be seen by the hunters. Legal parlance therefore refers to the "ostrich instruction," used when a defendant acts with the awareness of a high probability of the existence of an incriminating fact, but remains deliberately ignorant as to whether the fact actually exists, hoping his ignorance will maintain his innocence. The defendant is like the ostrich - he thinks that if he does not actually see the facts, even though he knows they …

Unreasonable Probability Of Error, Jed Handelsman Shugerman

Faculty Scholarship

In Strickland v. Washington, the Supreme Court sought to create a uniform standard to guarantee effective assistance of counsel to criminal defendants, to "ensure a fair trial," and to assure the reliability of "a just result."' Justice O'Connor's majority opinion created a two-pronged test for overturning a trial verdict: deficient performance and resulting prejudice. The Court explicitly established a difficult burden for proving deficient performance,² but set a moderate standard for prejudice as the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient …

Section 5: Criminal Law And Procedure, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Apprendi V. New Jersey: Should Any Factual Determination Authorizing An Increase In A Criminal Defendant's Sentence Be Proven To A Jury Beyond A Reasonable Doubt, Jason Ferguson

Mercer Law Review

In Apprendi v. New Jersey, the United States Supreme Court held, with the exception of the fact of prior criminal convictions, that any factual determination that authorizes an increased sentence beyond the statutory maximum must be proven to a jury beyond a reasonable doubt.

The Inherent Constitutionality Of The Police Use Of Deadly Force To Stop Dangerous Pursuits, Michael Douglas Owens

Mercer Law Review

Every day in our country, police agencies pursue criminal suspects who are unlawfully attempling to elude them. Reality-based television shows, such as Cops and the Police Videos series on the Fox Network, bring home to the public some measure of the adrenaline-producing excitement that automobile pursuits engender. Rarely, however, does one see the tragedy that often results from these pursuits. While reliable nationwide statistics on police pursuits are not available, various studies depict the rate of accidents as ranging from twenty-nine percent to seventy percent, with a rate of injury ranging from eleven percent to twenty-seven percent. Injuries and deaths …

Knockin' On Heaven's Door: Rethinking The Role Of Religion In Death Penalty Cases, Gary J. Simson, Stephen P. Garvey

Cornell Law Faculty Publications

Religion has played a prominent role at various points of capital trials. In jury selection, peremptory challenges have been exercised against prospective jurors on the basis of their religion. At the sentencing phase, defendants have offered as mitigating evidence proof of their religiosity, and the prosecution has introduced evidence of the victim's religiosity. In closing argument, quotations from the Bible and other appeals to religion have long been common. During deliberations, jurors have engaged in group prayer and tried to sway one another with quotes from scripture.

Such practices have not gone unquestioned. Rather remarkably, however, the questions have almost …

Preventing The Execution Of The Innocent: Testimony Before The Senate Judiciary Committee, Barry C. Scheck

Articles

The article advocates for federal legislation to address the wrongful conviction of innocent individuals, particularly through postconviction DNA testing. It emphasizes the urgent need for legal reforms to ensure access to DNA testing for all inmates, regardless of their sentence, and highlights the importance of preserving biological evidence, providing adequate funding for competent counsel, and leveraging technological advancements in DNA testing to exonerate the innocent and improve the criminal justice system.

A Primer On Rough Sets: A New Approach To Drawing Conclusions From Data, Zdzisław Pawlak

Cardozo Law Review

Rough set theory is a new mathematical approach to vague and uncertain data analysis. This Article explains basic concepts of the theory through a simple tutorial example and briefly outlines the application of the method to drawing conclusions from factual data. The presented approach can be used in some kind of legal reasoning.

Causality And Responsibility, Glenn Shafer

Cardozo Law Review

No abstract provided.

The Newness Of New Technology, Monroe E. Price

Cardozo Law Review

No abstract provided.