Criminal Procedure Commons^™

The Racial Geography Of The Federal Death Penalty, G. Ben Cohen, Robert J. Smith

Washington Law Review

Scholars have devoted substantial attention to both the overrepresentation of black defendants on federal death row and the disproportionate number of federal defendants charged capitally for the murder of white victims. This attention has not explained (much less resolved) these disquieting racial disparities. Little research has addressed the unusual geography of the federal death penalty, in which a small number of jurisdictions are responsible for the vast majority of federal death sentences. By addressing the unique geography, we identify a possible explanation for the racial distortions in the federal death penalty: that federal death sentences are sought disproportionately where the …

The Racial Geography Of The Federal Death Penalty, G. Ben Cohen, Robert J. Smith

Washington Law Review

Scholars have devoted substantial attention to both the overrepresentation of black defendants on federal death row and the disproportionate number of federal defendants charged capitally for the murder of white victims. This attention has not explained (much less resolved) these disquieting racial disparities. Little research has addressed the unusual geography of the federal death penalty, in which a small number of jurisdictions are responsible for the vast majority of federal death sentences. By addressing the unique geography, we identify a possible explanation for the racial distortions in the federal death penalty: that federal death sentences are sought disproportionately where the …

Finality, Habeas, Innocence, And The Death Penalty: Can Justice Be Done?, Ellyde Roko

Washington Law Review

In 1995, Judge Betty Binns Fletcher posed a question: In the context of the death penalty, can justice be done? She did not answer the question at the time. However, an examination of the procedural hurdles now facing condemned inmates seeking review of claims of constitutional violations suggests the answer is no. Too often courts, including the Supreme Court, have favored finality over fairness, elevating strict adherence to procedural rules over the responsibility to make sure justice is done. Nowhere is the problem clearer than in the arena of actual innocence, where the failure to consider a condemned inmate’s claim …

Why Did China Reform Its Death Penalty?, Kandis Scott

Washington International Law Journal

China recently reformed its death penalty laws, and as a result the government has executed fewer prisoners. The author explores possible reasons and policy concerns behind China's legal reform. These influences include international forces and domestic factors, such as the media, changed circumstances, compassion, and politics. Although hardly transparent, the underlying motivations for the revisions suggest that eventually China may abolish capital punishment, perhaps even before the United States does so.

Mainstreaming Civil Rights In The Law School Curriculum: Criminal Law And Procedure, Tamara F. Lawson

Articles

No abstract provided.

But What If The Court Reporter Is Lying? The Right To Confront Hidden Declarants Found In Transcripts Of Former Testimony, Peter Nicolas

Articles

In Part I of this Article, I will illustrate the hidden declarant issue through a series of hypotheticals that highlight both the hearsay and Confrontation Clause problems associated with proving former testimony. Next, in Part II, I will demonstrate that treating the hidden declarant's statements as testimonial, and thus subject to exclusion on Confrontation Clause grounds, is consistent with Crawford and its progeny.

I will then demonstrate, in Part III, that historically, in both England and the United States, the accused had the right to confront hidden declarants, and that the historical exception for former testimony does not extinguish the …

The Prosecutorial Ethic: With Great Power Comes Great Responsibility, Maureen Howard

Articles

Although the American trial system has been likened to an arena in which mental combatants fight “to the death ” (the verdict ), each warrior similarly skilled and equally committed to vanquishing the other in a forum with formal rules of engagement enforced by a learned and impartial judge, the role of the criminal prosecutor is qualitatively different from that of other advocates. This is because, unlike any other lawyer, a criminal prosecutor has an affirmative duty to the opposing party.

Closing Argument: Connecting The Dots For The Jury, Maureen A. Howard

Articles

A common error made by unseasoned attorneys when giving closing argument is retelling the “story” of their case. Storytelling is best used in opening statement, not closing argument. By the time the jurors hear closing argument, they are well acquainted with the story, because they have heard two opening statements and all the evidence.

Closing argument, as the name suggests, is instead the time to argue. This means that in addition to revisiting the theme(s) presented in opening statement, a lawyer may use rhetorical questions, draw conclusions and inferences from the evidence, discuss the credibility of the witness, examine the …

Taking The High Road: Why Prosecutors Should Voluntarily Waive Peremptory Challenges, Maureen A. Howard

Articles

In this Article, I review the efficacy of peremptory challenges and conclude that both empirical and anecdotal evidence confirm such challenges are of little utility. I contend that the marginal benefit of peremptory challenges to a criminal prosecutor is outweighed by the damage done to both the actual and perceived fairness of the system, and that imbalance should persuade prosecutors to consider a wholesale voluntary waiver of peremptory challenges.

"I'M Dying To Tell You What Happened": The Admissibility Of Testimonial Dying Declarations Post-Crawford, Peter Nicolas

Articles

This Article demonstrates the existence and delineates the scope of a federal constitutional definition of "dying declarations" that is distinct from the definitions set forth in the Federal Rules of Evidence and their state counterparts. This Article further demonstrates that states have state constitutional definitions of "dying declarations" (for purposes of interpreting state constitutional analogues to the Confrontation Clause of the Sixth Amendment) that may differ in important respects from the federal constitutional definition of "dying declarations."

This Article then shows that some of the definitions of "dying declarations" contained in federal and state hearsay exceptions exceed the federal and …

Before The Verdict And Beyond The Verdict: The Csi Infection Within Modern Criminal Jury Trials, Tamara F. Lawson

Articles

In criminal law, the term “CSI Effect” commonly refers to the perceived impact the CSI television show has on juror expectation and unexpected jury verdicts. This article coins a new phrase, “CSI Infection,” by focusing on the significant legal impact that the fear of “CSI Infected Jurors” has made upon the criminal justice system. The CSI Infection is the ubiquitous “It” factor that scholars cannot conclusively prove nor effectively explain away; however, practitioners overwhelmingly confirm the CSI Effect’s impact on criminal jury trials. The CSI Effect’s existence, the CSI Effect’s true or perceived impact on acquittals and convictions, and how …

Penalizing Poverty: Making Criminal Defendants Pay For Their Court-Appointed Counsel Through Recoupment And Contribution, Helen A. Anderson

Articles

Over thirty years ago the United States Supreme Court upheld an Oregon statute that allowed sentencing courts, with a number of important procedural safeguards, to impose on indigent criminal defendants the obligation to repay the cost of their court appointed attorneys. The practice of ordering recoupment or contribution (application fees or co-pays) of public defender attorney's fees is widespread, although collection rates are unsurprisingly low.

Developments since the Court's decision in Fuller v. Oregon show that not only is recoupment not cost-effective, but it too easily becomes an aspect of punishment, rather than legitimate cost-recovery. In a number of jurisdictions, …

No, You May Not Search My Car! Extending Georgia V. Randolph To Vehicle Searches, Alex Chan

Washington Law Review

In Georgia v. Randolph, the United States Supreme Court announced that third-party consent does not always suffice to immunize the search of a residence from Fourth Amendment attack. Specifically, the Court held that a police search of a residence conducted pursuant to the consent of one occupant, but over the express refusal of a physically present co-occupant with common authority, is unreasonable as to the nonconsenting occupant under the Fourth Amendment. The Court did not indicate whether its holding also extended to searches of personal effects, such as vehicles, conducted pursuant to third-party consent. As a general principle, the …

No, You May Not Search My Car! Extending Georgia V. Randolph To Vehicle Searches, Alex Chan

Washington Law Review

In Georgia v. Randolph, the United States Supreme Court announced that third-party consent does not always suffice to immunize the search of a residence from Fourth Amendment attack. Specifically, the Court held that a police search of a residence conducted pursuant to the consent of one occupant, but over the express refusal of a physically present co-occupant with common authority, is unreasonable as to the nonconsenting occupant under the Fourth Amendment. The Court did not indicate whether its holding also extended to searches of personal effects, such as vehicles, conducted pursuant to third-party consent. As a general principle, the …

Furman Fundamentals, Corinna Barrett Lain

Washington Law Review

For the first time in a long time, the Supreme Court's most important death penalty decisions all have gone the defendant's way. Is the Court's newfound willingness to protect capital defendants just a reflection of the times, or could it have come even without public support for those protections? At first glance, history allows for optimism. Furman v. Georgia, the 1972 landmark decision that invalidated the death penalty, provides a seemingly perfect example of the Court's ability and inclination to protect capital defendants when no one else will. Furman looks countermajoritarian, scholars have claimed it was countermajoritarian, and even …

Furman Fundamentals, Corinna Barrett Lain

Washington Law Review

For the first time in a long time, the Supreme Court's most important death penalty decisions all have gone the defendant's way. Is the Court's newfound willingness to protect capital defendants just a reflection of the times, or could it have come even without public support for those protections? At first glance, history allows for optimism. Furman v. Georgia, the 1972 landmark decision that invalidated the death penalty, provides a seemingly perfect example of the Court's ability and inclination to protect capital defendants when no one else will. Furman looks countermajoritarian, scholars have claimed it was countermajoritarian, and even …

To Charge Or Not To Charge, That Is Discretion: The Problem Of Prosecutorial Discretion In Chile, And Japan's Solution, Kirtland C. Marsh

Washington International Law Journal

Chile’s recent criminal procedure reform is an ambitious program to bring greater transparency, fairness, and effectiveness to the country’s legal system. However, the success of the reform is not assured. To a great extent, the reform’s success will depend on the new national Office of the Public Prosecutor’s ability to enforce laws and direct law enforcement within the confines of the new system. Prosecutors must balance the interests of the Chilean public’s demands for order and convictions with the reform’s underlying principles of impartiality and enhanced rights for defendants. If prosecutors resort to the excesses used by investigating judges under …

Prospects For Citizen Participation In Criminal Trials In Japan, Colin P.A. Jones

Washington International Law Journal

A review of The Lay Judge System, by Takashi Maruta (2004).

An Unwarranted Intrusion: The Constitutional Infirmities Of Washington's Dna Collection Law, Erin Curtis

Washington Law Review

Washington State law requires all convicted felons to submit a biological sample for purposes of DNA testing. Washington State courts have upheld this law as a permissible search under the Fourth Amendment to the United States Constitution. Article I, section 7 of the Washington State Constitution, however, provides broader protections against governmental intrusion than does its federal counterpart. Under the state constitutional provision, law enforcement officials may disturb a citizen's private affairs only if authority of law supports the disturbance. A statute alone cannot provide the requisite authority; rather, the search prescribed must either be pursuant to a warrant or …

Crossing Eight Mile: Juries Of The Vicinage And County-Line Criminal Buffer Statutes, Brian C. Kalt

Washington Law Review

Several state statutes allow the state to choose the county in which to prosecute a person who allegedly committed a crime near a county line. Because these buffer statutes apply even in cases where the location of the crime is not in doubt, they are inappropriate on two levels. First, they are needless as a matter of policy; other statutes solve all of the problems that buffers purport to address, but without the detrimental effects. Second, they conflict with the principle—traditional in some states but constitutionally required in others—of trial by a jury of the vicinage, i.e., from the neighborhood …

Capital Punishment, Proportionality Review, And Claims Of Fairness (With Lessons From Washington State), Timothy V. Kaufman-Osborn

Washington Law Review

This Article explores the adequacy of one of the safeguards adopted by many states to ensure that the death penalty is applied fairly, following the reinstatement of capital punishment in 1976. Relying chiefly on evidence drawn from Washington State, this Article asks whether the practice of comparative proportionality review has ensured that there is now a rational basis for distinguishing between those who are sentenced to die and those who are not. An analysis of the trial judge reports employed by the Washington State Supreme Court in reviewing death sentences, as well as the method used by the court in …

Miranda'S Poisoned Fruit Tree: The Admissibility Of Physicial Evidence Derived From An Unwarned Statement, Kirsten Lela Ambach

Washington Law Review

Miranda v. Arizona created an exclusionary rule that prohibits using, as part of the prosecution's case in chief, evidence that is obtained as the result of unwarned custodial interrogation. In Michigan v. Tucker and Oregon v. Elstad, the United States Supreme Court narrowed the scope of this rule in relation to the "fruit of the poisonous tree" doctrine that excludes all evidence derived from constitutional violations. The Tucker Court held that the testimony of a witness identified from an unwarned statement should be admitted, and the Elstad Court held that a warned statement following an unwarned statement should also …

A Is Not A: Washington's Unconstitutional Law Of Single-Count, Single-Defendant Inconsistent Verdicts In State V. Goins, Natasha Shekdar Black

Washington Law Review

In State v. Goins, Division I of the Washington State Court of Appeals upheld inconsistent general and special verdicts on the same charge, even though the special verdict finding negated an element of the crime. The Goins court reasoned that the United States Supreme Court and the Washington State Supreme Court had previously upheld inconsistent verdicts in various contexts because the verdicts could have been the result of jury lenity. Therefore, overruling existing precedent, the Goins court upheld the inconsistent verdicts on the ground that distinguishing the Goins context would be elevating form over substance. This Note argues that …

The Faint Shadow Of The Sixth Amendment: Substantial Imbalance In Evidence-Gathering Capacity Abroad Under The U.S.-P.R.C. Mutual Legal Assistance Agreement In Criminal Matters, David Whedbee

Washington International Law Journal

Transnational organized crime has an adverse impact on the United States and the People's Republic of China. In the last thirty years, the mutual legal assistance agreement has emerged as an effective mechanism to streamline international judicial assistance in combating borderless crime. The accretion of these agreements has created a growing web of bilateral obligations that links sovereign jurisdictions. The U.S.-P.R.C. mutual legal assistance agreement (the "U.S.-P.R.C. MLAA") furthers U.S. interests by facilitating U.S. Attomeys' access to physical evidence and witnesses in the People's Republic of China. Significantly, the political offense exception in the U.S.-P.R.C. agreement permits U.S. authorities to …

The Faint Shadow Of The Sixth Amendment: Substantial Imbalance In Evidence-Gathering Capacity Abroad Under The U.S.-P.R.C. Mutual Legal Assistance Agreement In Criminal Matters, David Whedbee

Washington International Law Journal

Transnational organized crime has an adverse impact on the United States and the People's Republic of China. In the last thirty years, the mutual legal assistance agreement has emerged as an effective mechanism to streamline international judicial assistance in combating borderless crime. The accretion of these agreements has created a growing web of bilateral obligations that links sovereign jurisdictions. The U.S.-P.R.C. mutual legal assistance agreement (the "U.S.-P.R.C. MLAA") furthers U.S. interests by facilitating U.S. Attomeys' access to physical evidence and witnesses in the People's Republic of China. Significantly, the political offense exception in the U.S.-P.R.C. agreement permits U.S. authorities to …

Law On Communications Interception During Criminal Investigations, Yohei Suda

Washington International Law Journal

Whereas organized crime severely damages the peace and health of society, and increasingly it is extremely difficult to clarify the truth in criminal investigations without intercepting the telephone communications or other telecommunications of criminals in serious crimes committed by conspiracy, such as organized murder and unlawful trade of drugs or firearms, the purpose of this law is to set forth the requirements, procedures, and other matters that are relevant to the invasive action of intercepting telecommunications, as provided in the Code of Criminal Procedure (Law No. 131, 1948), and are essential for dealing appropriately with such crimes, in such a …

The Japanese Law On Communications Interception During Criminal Investigatons: Translator's Introduction, Yohei Suda

Washington International Law Journal

Japan enacted the Law on Communications Interception During Criminal Investigations last year to help control organized crime. The legislation is, in part, a reaction to domestic and international pressure that grew from recent, well-publicized crimes such as the Aur Shinrikyo attack on a Tokyo subway. The Interception Law is a powerful tool for Japanese law enforcement, however the question of whether the Interception Law violates Japan's constitutional rights to privacy and secrecy of communication has not yet been resolved.

Disobedience And Contempt, Margit Livingston

Washington Law Review

A court's power to impose contempt sanctions on recalcitrant individuals is essential to ensure orderly judicial proceedings and obedience of judicial decrees. Despite repeated efforts to distinguish between civil and criminal contempt and the procedures required for each, the U.S. Supreme Court arguably has failed to delineate a precise demarcation between the two that considers both the due process interests of alleged contemnors and the remedial needs of party plaintiffs. This Article suggests that the Court's latest major decision on the differences between civil and criminal contempt, International Union, United Mine Workers v. Bagwell, represents the high water mark …

Justice At The Margins: Equitable Tolling Of Washington's Deadline For Filing Collateral Attacks On Criminal Judgments, Mark A. Wilner

Washington Law Review

RCW 10.73.090 establishes a one-year deadline for appealing a final criminal judgment in Washington State. This Comment argues that this one-year deadline should be subject to the doctrine of equitable tolling, which can prevent a statute of limitation from expiring when extraordinary circumstances preclude timely filing. After examining the text, legislative history, structure, purpose, and policy implications of RCW 10.73.090, this Comment demonstrates that the one-year deadline does not operate as a jurisdictional bar, which would revoke judicial power to hear a postconviction appeal after one year under any circumstances, but instead acts as a statute of limitation subject to …

Born To Run: The Supreme Court Of Washington's Misapplication Of The Doctrine Of Specialty In State V. Pang, Timothy Mcmichael

Washington Law Review

The Supreme Court of Washington's decision in State v. Pang that Martin Pang could not be tried for murder involved an erroneous application of the doctrine of specialty. This Note contends that this decision was based upon the court's overly broad reading of the U.S. Supreme Court's decision in United States v. Rauscher. The Supreme Court of Washington implied terms into the extradition treaty because of the court's incorrect interpretation of Rauscher, which prevented Washington from prosecuting Pang for murder. In addition, the court failed to take into account the policy rationales behind the doctrine of specialty, which …