Criminal Procedure Commons^™

Shadowing The Flag: Extending The Habeas Writ Beyond Guantanamo, Dawinder S. Sidhu

William & Mary Bill of Rights Journal

The writ of habeas corpus activates courts’ duty to check arbitrary or unlawful restraints by the Executive on individual liberty. In times of war, courts have been compelled to determine whether the writ is available to individuals held by the Executive outside of the territorial boundaries of the United States. In Johnson v. Eisentrager, in which World War II detainees were held in Germany, the Supreme Court answered in the negative, while in Boumediene v. Bush, involving post–9/11 detainees housedat Guantánamo, the Court reached the opposite conclusion. Operating within these two guideposts, the U.S. Court of Appeals for the District …

Bargaining Inside The Black Box, Allison Orr Larsen

Faculty Publications

When jurors are presented with a menu of criminal verdict options and they cannot reach a consensus among them, what should they do? Available evidence suggests they are prone to compromise—that is, jurors will negotiate with each other and settle on a verdict in the middle, often on a lesser-included offense. The suggestion that jurors compromise is not new; it is supported by empirical evidence, well-accepted by courts and commentators, and unsurprising given the pressure jurors feel to reach agreement and the different individual views they likely hold. There are, however, some who say intrajury negotiation represents a failure of …

Particularism, Telishment, And Three Strikes Laws, Michael S. Green

Popular Media

No abstract provided.

"Fact-Finding Without Facts": A Conversation With Nancy Combs, Nancy Amoury Combs

Faculty Publications

No abstract provided.

Ethical Guidance For A Grander Jury, Anna Offit

Faculty Publications

Section I of this Note explores the extent to which the American Bar Association (ABA) Practice Guide, and similar major ethical conventions and advisory opinions, present competing interpretations of the grand jury's role in the criminal justice system. The lack of prosecutorial disclosure of exculpatory evidence, grand jury secrecy, and the abundance of plea negotiations demonstrate how historicized visions of the grand jury are appropriated to serve distinct conceptions of the institution's proper role. Section II offers a historical narrative of the grand jury that places grand jurors' "local knowledge" and experience at the heart of an inherently interpretive and …

Deciding When To Decide: How Appellate Procedure Distributes The Costs Of Legal Change, Aaron-Andrew P. Bruhl

Faculty Publications

Legal change is a fact of life, and the need to deal with it has spawned a number of complicated bodies of doctrine. Some aspects of the problem of legal change have been studied extensively, such as doctrines concerning the retroactivity of new law and the question whether inferior courts can anticipatorily overrule a moribund superior court precedent. How such questions are answered affects the size and the distribution of the costs of legal change. Less appreciated is the way that heretofore almost invisible matters of appellate procedure and case handling also allocate the costs of legal transitions. In particular, …

Reading, Writing, And Interrogating: Providing Miranda Warnings To Students In Schoolhouse Interrogations, Stephanie Gaylord Forbes

Student Award Winning Papers

No abstract provided.

The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants, Adam M. Gershowitz, Laura R. Killinger

Faculty Publications

No abstract provided.

Grand Jury Innovation: Toward A Functional Makeover Of The Ancient Bulwark Of Liberty, Roger A. Fairfax Jr.

William & Mary Bill of Rights Journal

No abstract provided.

Is Punishment Relevant After All? A Prescription For Informing Juries Of The Consequence Of Conviction, Jeffrey Bellin

Faculty Publications

The American jury, once heralded as “the great corrective of law in its actual administration,” has suffered numerous setbacks in the modern era. As a result, jurors have largely become bystanders in a criminal justice system that relies on increasingly severe punishments to incarcerate tens of thousands of offenders each year. The overwhelming majority of cases are resolved short of trial and, even when trials occur, jurors are instructed to find only the facts necessary for legal guilt. Apart from this narrow task, jurors need not, in the eyes of the law, concern themselves with whether a conviction and subsequent …

Protecting The Homeless Under Vulnerable Victim Sentencing Guidelines: An Alternative To Inclusion In Hate Crime Laws, Katherine B. O'Keefe

William & Mary Law Review

No abstract provided.

Appellate Review Of Sentences: Reconsidering Difference, Michael M. O'Hear

William & Mary Law Review

American appellate courts have long resisted calls that they play a more robust role in the sentencing process, insisting that they must defer to what they characterize as the superior sentencing competence of trial judges. This position is unfortunate insofar as rigorous appellate review might advance uniformity and other rule-of-law values that are threatened by broad trial court discretion. This Article thus provides the first systematic critique of the appellate courts’ standard justifications for deferring to trial court sentencing decisions. For instance, these justifications are shown to be based on premises that are inconsistent with empirical research on cognition and …

Judge's Ill-Timed Ruling Invites Irrationality In Public's Views About Capital Punishment, Adam M. Gershowitz

Popular Media

No abstract provided.

Statewide Capital Punishment: The Case For Eliminating Counties’ Role In The Death Penalty, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Deciding When To Decide - Appellate Procedure And Legal Change, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

Know Your Limit: How Legislatures Have Gone Overboard With Per Se Drunk Driving Laws And How Men Pay The Price, Andrew Gore

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Georgia V. Randolph, The Red-Headed Stepchild Of An Ugly Family: Why Third Party Consent Search Doctrine Is An Unfortunate Fourth Amendment Development That Should Be Restrained, Aubrey H. Brown

William & Mary Bill of Rights Journal

No abstract provided.

Your Honor, I Seen Him With That Gang: The Constitutionality Of The Federal Criminal Street Gang Statute In The Wake Of Apprendi V. New Jersey, Jennifer E. Fleming

William & Mary Bill of Rights Journal

No abstract provided.

Sex, Booze, And Clarity: Defining Sexual Assault On A College Campus, Justin Neidig

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Roe At Thirty-Six And Beyond: Enhancing Protection For Abortion Rights Through State Constitutions, Linda J. Wharton

William & Mary Journal of Race, Gender, and Social Justice

In a series of decisions over the past three decades, the Supreme Court has seriously undermined Roe v. Wade's promise of full and meaningful federal constitutional protection for women's access to abortion. While the new Obama administration will enhance protection for reproductive rights at the federal level, the reality remains that reconstituting the Supreme Court with a majority of Justices amenable to fully restoring Roe's strict protections will likely take many years. This Article considers whether state constitutions are a promising avenue for enhancing protection for abortion rights.

This Article looks back on thirty years of reproductive rights litigation under …

Lawrence As An Eighth Amendment Case: Sodomy And The Evolving Standards Of Decency, Sheldon Bernard Lyke

William & Mary Journal of Race, Gender, and Social Justice

This Article offers an alternate reading of Lawrence v. Texas, the 2003 U.S. Supreme Court case that struck down the Texas sodomy statute that criminalized private, consensual, and adult same-sex intercourse. While most scholars discuss Lawrence as a substantive due process case and struggle to find meaning in the ambiguity of the decision's language, I propose that Lawrence is better read as an Eighth Amendment case. This Article argues that the majority opinion analyzed the constitutionality of the Texas sodomy law as it would analyze the cruelty and unusualness of a criminal law in an Eighth Amendment evolving standards of …

Incremental Independence: Conforming The Law To The Process Of Adolescence, Megan E. Hay

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Prosecutorial Shaming: Naming Attorneys To Reduce Prosecutorial Misconduct, Adam M. Gershowitz

Faculty Publications

This Article explores the unfortunately large number of instances in which appellate courts reverse convictions for serious prosecutorial misconduct but do not identify the names of the prosecutors who committed that misconduct. Because judges are reluctant to publicly shame prosecutors whose cases are reversed, this Article advocates that a neutral set of third parties undertake the responsibility of publicly identifying prosecutors who have committed serious misconduct. The naming of prosecutors will shame bad actors, provide a valuable pedagogical lesson for junior prosecutors, and signal to trial judges that certain prosecutors must be monitored more closely to avoid future misconduct.

Curb Your Ecoterrorism: Identifying The Nexus Between State Criminalization Of Ecoterror And Environmental Protection Policy, Paul J. Karasick

William & Mary Environmental Law and Policy Review

No abstract provided.

Circumventing Congress: How The Federal Courts Opened The Door To Impeaching Criminal Defendants With Prior Convictions, Jeffrey Bellin

Faculty Publications

This Article spotlights the flawed analytical framework at the heart of the federal courts’ approach to one of the most controversial trial practices in American criminal jurisprudence — the admission of prior convictions to impeach the credibility of defendants who testify. As the Article explains, the flawed approach is a byproduct of the courts’ reliance on a five-factor analytical framework to implement the governing legal standard enacted by Congress in Federal Rule of Evidence 609. Tracing the evolution of the fivefactor framework from its roots in pre-Rule 609 case law, the Article demonstrates that the courts’ reinterpretation of the framework …

Maintaining The Presumption Of Innocence In Date Rape Trials Through The Use Of Language Orders: State V. Safi And The Banning Of The Word "Rape", Jason Wool

William & Mary Journal of Race, Gender, and Social Justice

This note evaluates the use of language orders in date rape trials in which the defense is consent through a case study of State v. Safi, in which Tory Bowen claims that Pamir Safi date raped her. In that case, the trial judge granted a motion by the defense to prevent the prosecution and any of their witnesses from using words such as "rape" and "sexual assault." Using State v. Safi as a starting point, the author examines the use of such trial orders from the perspective of both defendants and victims. The author concludes that a modified version of …

Rethinking Drug Inadmissibility, Nancy Morawetz

William & Mary Law Review

Changes in federal statutory policy, state criminal justice laws, and federal enforcement initiatives have led to an inflexible and zero tolerance immigration policy with respect to minor drug use. This Article traces the evolution of the statutory scheme and how various provisions in state and federal law interact to create the current policy. It proceeds to investigate the broad reach of these rules if they are fully enforced, in light of the widespread lifetime experience with minor drug use both in the United States and abroad. Drawing on the experience of law enforcement agencies that have abandoned similarly rigid rules, …

Death By A Thousand Cases: After Booker, Rita, And Gall, The Guidelines Still Violate The Sixth Amendment, David C. Holman

William & Mary Law Review

No abstract provided.

Get In The Game Or Get Out Of The Way: Fixing The Politics Of Death, Adam M. Gershowitz

Faculty Publications

No abstract provided.

The Significance (If Any) For The Federal Criminal Justice System Of Advances In Lie Detector Technology, Jeffrey Bellin

Faculty Publications

Against a backdrop of accelerating developments in the science of lie detection certain to reopen the debate on the reliability and therefore admissibility of lie detector evidence in the federal courts, this Article examines whether the prohibition on hearsay evidence (or other evidentiary objections) will preclude admissibility of even scientifically reliable lie detector evidence. The Article concludes that the hearsay prohibition, which has been largely ignored by courts and commentators, is the primary obstacle to the future admission of scientifically valid lie detector evidence. The Article also suggests a potential solution to the hearsay problem that may allow admission of …