Criminal Procedure Commons^™

Melendez-Diaz And The Right To Confrontation, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

Right Problem; Wrong Solution, Joseph L. Hoffmann, Nancy J. King

Articles by Maurer Faculty

No abstract provided.

Inter-Judge Sentencing Disparity After Booker: A First Look, Ryan W. Scott

Articles by Maurer Faculty

A central purpose of the Sentencing Reform Act was to reduce inter-judge sentencing disparity, driven not by legitimate differences between offenders and offense conduct, but by the philosophy, politics, or biases of the sentencing judge. The federal Sentencing Guidelines, despite their well-recognized deficiencies, succeeded in reducing that form of unwarranted disparity. But in a series of decisions from 2005 to 2007, the Supreme Court rendered the Guidelines advisory (Booker), set a highly deferential standard for appellate review (Gall), and explicitly authorized judges to reject the policy judgments of the Sentencing Commission (Kimbrough). Since then, the Commission has received extensive anecdotal …

Reconceiving The Fourth Amendment And The Exclusionary Rule, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

Retribution's Role, John Bronsteen

Indiana Law Journal

Two main types of principle, retributive and consequentialist, have long been identified as the main approaches to justifying criminal punishment. Retributivists deem punishment justified by the wrongdoing of the offender, whereas utilitarians deem it justified by its good consequences such as deterring future crime. Over the past fifty years, each has spent decades as the dominant theory, and many hybrid theories have also been advanced. But few, if any, of the hybrid approaches have valued heavily both retributive and consequentialist considerations while locating the particular justificatory role each category plays. This Article points in that direction by reframing the central …

Rethinking The Federal Role In State Criminal Justice, Joseph L. Hoffmann, Nancy J. King

Articles by Maurer Faculty

This Essay argues that federal habeas review of state criminal cases squanders resources the federal government should be using to help states reform their systems of defense representation. A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners convicted of non-capital crimes, and offers no realistic hope of relief for those who reach federal court. As a means of correcting or deterring constitutional error in non-capital cases, habeas is failing and cannot be fixed. Drawing upon these findings as well as the Supreme Court's most recent decision applying the Suspension Clause, the authors propose that …

Interrogation And Silence: A Comparative Study, Craig M. Bradley

Articles by Maurer Faculty

This article examines interrogation practices in detail in three systems: the American, the English (and Welsh), and the Canadian while also discussing rules from various other countries. It considers when the Miranda-type warnings (required in all three systems) must be given and when suspects will be deemed to have waived their rights. This article further discusses how reliability and voluntariness of confession is assured. Finally, a particular emphasis is placed on the issue of when a suspect's silence during interrogation may be used against him in court. The article concludes that American courts have not done enough to ensure reliability …

Promoting Prosecutorial Accountability, Independence And Effectiveness, Timothy W. Waters, Belinda Cooper

Books & Book Chapters by Maurer Faculty

Promoting Prosecutorial Accountability, Independence and Effectiveness assists readers in identifying and understanding best practices, and serves as a reference for policymakers, senior prosecutors, academics, and civil society leaders.

The publication should also guide and enrich national debates on prosecutorial reform, especially in countries—such as Bulgaria—which have recently transitioned to democracy.

Envisioning Post-Conviction Review For The Twenty-First Century, Joseph L. Hoffmann, Nancy J. King

Articles by Maurer Faculty

No abstract provided.

Special Issues Raised By Rape Trials, Aviva A. Orenstein

Articles by Maurer Faculty

Rape cases reveal core conflicts in the space where evidence, law, and ethics intersect. Such conflicts include the tension between victim protection and the rights of the accused, the challenges attorneys face trying to negotiate the demands of sensitive and emotionally difficult cases, and the role of the law in counteracting stereotypes and bias.

In this essay, I will begin by presenting the cultural milieu surrounding rape allegations, briefly reviewing attitudes towards perpetrators and victims. Next, I will attempt to capture the legal zeitgeist concerning rape, focusing on two recent phenomena: the reversal of false rape convictions based on DNA …

The Reasonable Policeman: Police Intent In Criminal Procedure, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

Sovereignty, Not Due Process: Personal Jurisdiction Over Nonresident, Alien Defendants, Austen L. Parrish

Articles by Maurer Faculty

The Due Process Clause with its focus on a defendant's liberty interest has become the key, if not only, limitation on a court's exercise of personal jurisdiction. This due process jurisdictional limitation is universally assumed to apply with equal force to alien defendants as to domestic defendants. With few exceptions, scholars do not distinguish between the two. Neither do the courts. Countless cases assume that foreigners have all the rights of United States citizens to object to extraterritorial assertions of personal jurisdiction.

But is this assumption sound? This Article explores the uncritical assumption that the same due process considerations apply …

"Reasonably Predictable:" The Reluctance To Embrace Judicial Discretion For Substantial Assistance Procedures, India Geronimo Thusi

Articles by Maurer Faculty

This Comment focuses on the nuances of post-Booker cooperation departures and sentence variances. Section 5K1.1 of the Guidelines governs the provision of cooperation, or substantial assistance, departures. This provision was the primary method for defendants to receive cooperation departures prior to Booker. The section 5K1.1 provision allowed substantial assistance departures where the prosecution actually benefited from the defendant’s cooperation.

First, Part I.A of this Comment will provide an overview of the original goals of the Sentencing Commission and the section 5K1.1 substantial assistance provision. Part I.B of the Comment summarizes United States v. Booker and its impact on cooperation departures. …

The Invisible Pillar Of Gideon, Adam M. Gershowitz

Indiana Law Journal

In 1996, the State of South Carolina charged Larry McVay with common-law robbery. McVay, who was employed part-time and took home less than $160 per week after taxes, claimed that after paying his basic living expenses he had no money left with which to hire an attorney. A South Carolina court disagreed and denied McVay's requestfor appointed counsel. ' Seven years later, Scott Peterson was arrested for the murder of his wife and unborn child in California. Although Peterson owned a home, drove an expensive SUV, and was carrying $10,000 in cash when he was captured, he claimed to be …

Determining When Two Offenses Are The Same Under Indiana's Criminal Rule 4, Howard W. Anderson Iii

Indiana Law Journal

No abstract provided.

Deviance, Due Process, And The False Promise Of Federal Rule Of Evidence 403, Aviva A. Orenstein

Articles by Maurer Faculty

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413 and 414 (concerning rape and child abuse, respectively) allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity. Courts have rejected due process challenges to the new rules, holding that Federal Rule of Evidence 403 serves as a check on any fairness concerns. However, courts' application of Rule 403 in cases involving these sexual propensity rules is troubling. Relying on the legislative history of the new rules and announcing a presumption of admissibility, courts have forsaken the traditional operation of …

Protecting The Innocent: The Massachusetts Governor's Council Report, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.

Federalism And The Federal Criminal Law, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

To Err Is Human: The Judicial Conundrum Of Curing Apprendi Error, Joshua Fairfield

Articles by Maurer Faculty

No abstract provided.

The Middle Class Fourth Amendment, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

Revenge Or Mercy? Some Thoughts About Survivor Opinion Evidence In Death Penalty Cases, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.

Keeping Cross-Examination Under Control, J. Alexander Tanford

Articles by Maurer Faculty

No abstract provided.

"Be Careful What You Ask For": The 2000 Presidential Election, The U.S. Supreme Court, And The Law Of Criminal Procedure, Craig M. Bradley, Joseph L. Hoffmann

Indiana Law Journal

No abstract provided.

Mapp Goes Abroad, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

Apprendi V. New Jersey: Back To The Future?, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.

Plea Bargaining In The Shadow Of Death, Joseph L. Hoffmann, Marcy L. Kahn, Steven W. Fisher

Articles by Maurer Faculty

No abstract provided.

Is Payne Defensible?: The Constitutionality Of Admitting Victim-Impact Evidence At Capital Sentencing Hearings, Joshua D. Greenberg

Indiana Law Journal

No abstract provided.

Harmonic Convergence? Constitutional Criminal Procedure In An International Context, Diane Marie Amann

Indiana Law Journal

No abstract provided.

Substance And Procedure In Capital Cases: Why Federal Habeas Courts Should Review The Merits Of Every Death Sentence, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.

Revisiting Victim's Rights, Lynne N. Henderson

Articles by Maurer Faculty

No abstract provided.