Criminal Procedure Commons^™

The Case For Televised Executions, Gil Santamarina

Cardozo Arts & Entertainment Law Journal

No abstract provided.

A Reply: Imperfect Bargains, Imperfect Trials, And Innocent Defendants, Robert E. Scott

Faculty Scholarship

To understand what is and is not wrong with plea bargaining, one must understand the relationship of bargains to trials. Unsurprisingly, we disagree with much of what Judge Frank Easterbrook and Professor Stephen Schulhofer say about that relationship. Most of those disagreements need not be rehearsed here; readers attentive enough to wade through their essays and ours will pick up the key points readily enough. But there is one point where the dispute is at once sharp and hidden. It has to do with the fact that both trials and bargains are flawed.

That fact might seem obvious, but the …

Plea-Bargaining As A Social Contract, Robert E. Scott, William J. Stuntz

Faculty Scholarship

Most criminal prosecutions are settled without a trial. The parties to these settlements trade various risks and entitlements: the defendant relinquishes the right to go to trial (along with any chance of acquittal), while the prosecutor gives up the entitlement to seek the highest sentence or pursue the most serious charges possible. The resulting bargains differ predictably from what would have happened had the same cases been taken to trial. Defendants who bargain for a plea serve lower sentences than those who do not. On the other hand, everyone who pleads guilty is, by definition, convicted, while a substantial minority …

Conference On The Federal Sentencing Guidelines, Panel 3: The Allocation Of Discretion Under The Guidelines, Daniel J. Freed, Gerard E. Lynch, Steven M. Salky, Maria Rodriguez Mcbride, Vincent L. Broderick

Faculty Scholarship

The guidelines have shifted the locus of discretion from the judge to the prosecutor. This transfer has drastically changed sentencing because the prosecutor's role is very different from the judge's role.

Before the guidelines, the prosecutor's role in sentencing was minimal. The prosecutor could put a cap on the sentence by accepting a plea to a charge with a low maximum, but there was virtually no instance in which the charge would put a floor under the judge's sentence. The judge, on the other hand, could sentence however he liked. Not only was the judge's decision correct because it was …

Review Essay: Feminism, Lawyering, And Death Row, Joan W. Howarth

Scholarly Works

Representing men on death row is confounding, but not without reward. This lawyering work has taught me at least two lessons, the subjects of this essay. First, capital punishment--our attempt to use legal procedures to kill people fairly--is a feminist issue, or should be. Second, death row representation is too big a job for lawyers; we need to recruit poets. To develop these ideas, and perhaps to convince you without requiring you to undertake the same path to these conclusions, I am appropriating novelist Beverly Lowry's stunning new book, Crossed Over: A Murder, A Memoir. Crossed Over is the story …

Criminal Law, Frank C. Mills Iii

Mercer Law Review

In the hundreds of cases reviewed for this survey, there were few earthshaking decisions. DNA evidence has arrived in Georgia, and the year and- a-day rule has left. Nevertheless, there are more noteworthy cases than can be adequately addressed in this survey. There are plenty of pitfalls for the unwary. In fact the most notable trend is the ever-increasing number of challenges to former counsel. Prosecutors, defense counsel, and courts are well-advised to use the Checklist for Unified Appeals as a guide in any criminal case.

Due to the significance of the Checklist for Unified Appeal, the author uses a …

Suicide And Justice, Arthur J. Jacobson

Cardozo Law Review

No abstract provided.

Some Caveats Concerning Dna As Criminal Identification Evidence: With Thanks To The Reverend Bayes, Richard Lempert

Cardozo Law Review

No abstract provided.

The Admissibility Of Dna Testing, D. H. Kaye

Cardozo Law Review

No abstract provided.

What Dna “Fingerprinting” Can Teach The Law About The Rest Of Forensic Science, Michael J. Saks, Jonathan J. Koehler

Cardozo Law Review

No abstract provided.

Expert-Novice Differences And Implications For Choice Of Bench Versus Jury Trial, Anne W. Martin

Cardozo Law Review

No abstract provided.

Missing Evidence, Dale A. Nance

Cardozo Law Review

No abstract provided.

Distribution Of Damages In Car Accidents Through The Use Of Neural Networks, Lothar Philipps

Cardozo Law Review

After a traffic accident the damage has to be fairly divided among the parties involved, and a ratio has to be determined. There are many precedents for this, and judges have developed catalogues suggesting ratios for common types of accidents.

The problem that "every case is different," however, remains. Many cases have familiar aspects, but also unfamiliar ones. Even if a case is composed of several familiar aspects with established ratios, the question remains as to how these are to be figured into one ratio. The first thought would be to invent a mathematical formula, but such formulae are rigid …

Comment On Edwards: Ward Edwards And The New Bayesian Software, David T. Wasserman

Cardozo Law Review

No abstract provided.

Influence Diagrams, Bayesian Imperialism, And The Collins Case: An Appeal To Reason, Ward Edwards

Cardozo Law Review

No abstract provided.

The Fall And Rise Of The Criminal Contingent Fee, Peter Lushing

Articles

The article argues that the ban on contingent fees for criminal defense attorneys, established by the American Bar Association in 1969, is outdated and should be repealed. It contends that the ban is rooted in historical prejudice and unfounded concerns about conflicts of interest, rather than empirical evidence. The author suggests that the Supreme Court's 1989 decision implicitly approving contingent fees in certain criminal cases presents an opportunity to reconsider this prohibition. Repealing the ban could benefit middle-class defendants and allow for regulation and data collection to address potential issues.

In The Aftermath Of Soering, Is Interstate Extradition To Virginia Illegal?

Washington and Lee Law Review

No abstract provided.

Tribe V. Mancha, No. 90-C-1355, 91-Ap-03 (Blkft. Tr. Ct. App., Aug. 29, 1991), Blackfeet Appellate Court

Court Decisions

The Court of Appeals for the Blackfeet Indian Reservation dismissed the case against the defendant because he was denied his right to a speedy trial by jury. The Court found that the standard timeframe accepted by most courts for a speedy trial is 180 days, and Mancha was brought to trial after 284 days. The Court held that this delay in the trial date violated the defendant’s rights as defined in Rule 58, Chapter 9 of the Blackfeet Law and Order Code. The Court further ordered that the trial court implement a procedure at arraignment for documenting waiver of jury …

Tribe V. Mancha, No. 90-C-1355, 91-Ap-03 (Blkft. Tr. Ct. App., Aug. 29, 1991)., Blackfeet Appellate Court

Court Decisions

The Court of Appeals for the Blackfeet Indian Reservation dismissed the case against the defendant because he was denied his right to a speedy trial by jury. The Court found that the standard timeframe accepted by most courts for a speedy trial is 180 days, and Mancha was brought to trial after 284 days. The Court held that this delay in the trial date violated the defendant’s rights as defined in Rule 58, Chapter 9 of the Blackfeet Law and Order Code. The Court further ordered that the trial court implement a procedure at arraignment for documenting waiver of jury …

The Jurisdiction To Do Justice: Florida's Jury Override And The State Constitution, Michael Mello

Florida State University Law Review

No abstract provided.

Minnick V. Mississippi: Additional Protection For The Criminal Defendant, Gabe Hotard Jr.

Mercer Law Review

In Minnick v. Mississippi, the United States Supreme Court held that when counsel is requested by an accused in custody, interrogation of the accused must cease, and officials may not re-initiate interrogation without counsel present, whether or not the accused has consulted with his attorney. The privilege against self-incrimination as guaranteed by the fifth amendment and as developed into its modern form nearly a quarter-century ago in Miranda v. Arizona provided the backbone of the Supreme Court's decision. The Court's holding clarifies the previously unclear issue of whether counsel's presence on behalf of an accused is required at any interrogation …

Confessions, Criminals, And Community, Sheri Lynn Johnson

Cornell Law Faculty Publications

No abstract provided.

Statutes Of Repose And The Construction Industry: A Proposal For New York, Andrew Alpern

Cardozo Law Review

No abstract provided.

Should Judges Take Seriously The Sentencing Commission's Standards For Accepting Plea Agreements?, David Yellen

Articles

No abstract provided.

Aspects Of Interaction Between The Torah Law, The King’S Law, And The Noahide Law In Jewish Criminal Law, Arnold N. Enker

Cardozo Law Review

No abstract provided.

Challenging Public Investigative Reports: How To Fight The Hearsay Exception, Steven P. Grossman, Stephen J. Shapiro

All Faculty Scholarship

This paper discusses how attorneys can argue against having government and public reports admitted into evidence at trial that would be damaging to their client. When this paper was done, such reports were admitted via Federal Rule of Evidence 803(8)(C). The authors argue that it is possible to challenge admission of factual findings in public reports despite various court decisions which make this difficult.

Self-Defense As A Justification For Punishment, George P. Fletcher

Cardozo Law Review

No abstract provided.

Survey Of Recent Developments In Indiana Criminal Law And Procedure, Bruce G. Berner, David E. Vandercoy

Law Faculty Publications

No abstract provided.

Breaking The Silence: Should Jurors Be Allowed To Question Witnesses During Trial?, Jeffrey S. Berkowitz

Vanderbilt Law Review

The above line of questioning destroyed the defendant's chance of being acquitted. Surprisingly, however, the questions that sealed the defendant's fate were raised by a juror after the prosecutor had failed to elicit the devastating facts.'

The notion of allowing jurors to question witnesses during a trial is not a novel one, but the governmental entities responsible for supervising the court system never have encouraged the practice.' As a result, juror questioning is not widespread.' This situation, however, may be changing. During 1989 judges in at least thirty states, including New York, California, and Connecticut, agreed to conduct the first …

Be All You Can Be (Without The Protection Of The Constitution), Keith M. Harrison

Law Faculty Scholarship

[Excerpt] “Despite the generous inclusion by President Reagan of the many soldiers, sailors, airmen, and marines in the concept of "the people" of this republic, it is not altogether dear whether one whose status has changed from ordinary "citizen" to "a member of the armed forces" can legitimately claim any of the constitutional protections of citizenship until he or she is no longer a member of the armed forces. In the course of this nation's history the Supreme Court has denied some or all of the protection of the Constitution to many groups of people, including African-Americans, 2 women,3 Native …