Criminal Procedure Commons^™

Truth Or Legality: The Limits On The Laundering Of Illegally Gathered Evidence In A State Under The Rule Of Law (Verdad O Legalidad: Los Límites Del Blanqueo De Pruebas Ilegalmente Recogidas En Un Estado De Derecho) (Spanish), Stephen C. Thaman

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This paper discusses the tension between the constitutional rights to silence and to privacy and the important goal of criminal procedure to ascertain the truth. It traces exclusionary rules from the inquisitorial rules relating to nullities, to modern constitutional, statutory and jurisprudential rules for excluding illegally gathered evidence.

Note: downloadable document is in Spanish

Place Mattters (Most): An Empirical Study Of Prosecutorial Decision-Making In Death-Eligible Cases, Katherine Y. Barnes, David L. Sloss, Stephen C. Thaman

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This article investigates prosecutorial discretion in death penalty prosecution in Missouri. Based upon an empirical analysis of all intentional-homicide cases from 1997-2001, this article concludes that Missouri law gives prosecutors unconstitutionally broad discretion in charging these cases. This article also finds that prosecutors exercise this broad discretion differently, leading to geographic and racial disparities in sentencing, and concludes with proposals for statutory reform.

The Precarious Situation Of Human Rights In The United States In Normal Times And After September 11, 2001 (La Situación Precaria De Los Derechos Humanos En Estados Unidos En Tiempos Normales Y Después Del 11 De Septiembre De 2001) (Spanish), Stephen C. Thaman

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The paper criticizes the impact of U. S. American criminal law and procedure on the human rights of U. S. citizens in normal times and the changes that have occurred since the terrorist attacks of September 11, 2001. It deals with racial profiling, the death penalty, Draconian prison sentences in normal times, and the use of unlimited detention, torture and expanded powers of wiretapping and evidence gathering since the attacks of 9-11.

Note: downloadable document is in Spanish

Brennan Lecture Evidence-Based Judicial Discretion: Promoting Public Safety Through State Sentencing Reform, Michael A. Wolff

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In this speech delivered for the annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, the Honorable Michael Wolff offers a new way of thinking about sentencing. Instead of attempting to limit judicial discretion and increase incarceration, states should aim to reduce recidivism in order to make our communities safer. Judge Wolff uses the example of Missouri's sentencing reforms to argue that states should adopt evidence-based sentencing, in which the effectiveness of different sentences and treatment programs are regularly evaluated. In pre-sentencing investigative reports, probation officers should attempt to quantify - based on historical data - …

Life And Death Decisions: Prosecutorial Discretion And Capital Punishment In Missouri, Katherine Y. Barnes, David L. Sloss, Stephen C. Thaman

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This article presents the results of an empirical study of intentional homicide cases in Missouri. The authors created a database of 1046 cases; it includes substantially all of the homicide cases prosecuted in Missouri over a five year period that were initially charged as murder or voluntary manslaughter and that yielded criminal convictions. The authors selected 247 cases from the larger database for more detailed analysis. We analyzed geographic and racial disparities in the rates at which: prosecutors charge first-degree murder versus lesser charges; prosecutors seek the death penalty, not lesser punishments; defendants are convicted of first-degree murder versus lesser …

The Two Faces Of Justice In The Post-Soviet Legal Sphere: Adversarial Procedure, Jury Trial, Plea-Bargaining And The Inquisitorial Legacy, Stephen C. Thaman

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This essay focuses on adversary procedure, plea-bargaining, and jury trial in the 1991 Concept of Judicial Reform of the Russian Republic. It discusses the impact of these reforms and assesses whether they have led to an improvement in the quality of evidence presented to the trier of fact, liberation of the trial and appellate judges from the juggernaut of hierarchical Soviet ‘crime control’ policies, and the development of a culture where acquittals of guilty and innocent will be tolerated when the evidence lacks credibility or is insufficient to constitute proof beyond a reasonable doubt.

Jury Trial And Adversary Procedure In Russia: Reform Of Soviet Inquisitorial Procedure Or Democratic Window-Dressing?, Stephen C. Thaman

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A new adversary system of jury trial was introduced in 1993-1994, and the rights to jury trial, adversary procedure, the presumption of innocence, and the mandatory exclusion of illegally gathered evidence were incorporated into the new Constitution of the Russian Federation in December of 1993. The new Criminal Procedure Code of the Russian Federation, passed in December 2001, led to the extension of jury trial to the entire country with the exception of the Republic of Chechnia in 2003-2004.

This chapter explores the extent to which the Russian jury system and adversary procedure have humanized criminal procedure, and concludes that …

Penal Court Procedures: Doctrinal Issues, Stephen C. Thaman

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Volume III: This is an encyclopedia entry on doctrinal issues in penal court procedures.

Plea-Bargaining, Negotiating Confessions And Consensual Resolution Of Criminal Cases, Stephen C. Thaman

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This report explores the various types of consensual procedures that make up the procedural arsenals of modern criminal justice systems and if and how they have contributed to procedural economy in the respective country. It discusses whether or not important procedural principles have been compromised, undermining the legitimacy of the criminal justice system.

The Good, The Bad, Or The Indifferent: '12 Angry Men' In Russia, Part Of Symposium: The 50th Anniversary Of '12 Angry Men', Stephen C. Thaman

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Sidney Lumet’s 1957 film, 12 Angry Men, based on the screenplay by Reginald Rose, has become the emblem of the American jury trial as an anti-authoritarian institution based on democratic consensus building. This essay discusses the interplay of literature and criminal justice in pre-Revolution Russia, for this is the cultural soil upon which the film 12 Angry Men was received in Soviet Russia, when it was first screened in 1961. It discusses the reception of 12 Angry Men in Soviet Russia in 1961 and the impact it had on Soviet-era citizens in their understanding of American and Soviet criminal justice, …

Consensual Penal Resolution, Stephen C. Thaman

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Volume I: This is an encyclopedia entry on consensual penal resolution.

Reflections On Standing: Challenges To Searches And Seizures In A High Technology World, José F. Anderson

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Among the profound issues that surround constitutional criminal procedure is the obscure often overlooked issue of who has standing to challenge an illegal search, seizure or confession. Privacy interests are often overlooked because without a legal status that allows a person to complain in court, there is no way to challenge whether one is constitutionally protected from personal invasions. Standing is that procedural barrier often imposed to prevent a person in a case from objecting to improper police conduct because of his or her relationship of ownership, proximity, location, or interest in an item searched or a thing seized. Although …

Shame And The Meanings Of Punishment, Chad Flanders

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Debates over shaming punishments have raged over the past few years, with people like Dan Kahan and Eric Posner for them, while James Whitman and Martha Nussbaum have entered the fray strongly against them. This Essay argues that both sides in the shaming punishment debate have it only party right. Those who favor shaming sanctions are correct that we should (all else being equal) favor those punishments which are expressive rather than those that involve some form of hard treatment. And those who reject shaming sanctions are correct that such sanctions involve forms of humiliation and denials of dignity that …

A Comparative Approach To Teaching Criminal Procedure And Its Application To The Post-Investigative Stage, Stephen C. Thaman

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This article addresses why a comparative perspective should be brought into a basic bar course like criminal procedure. American courts and students should be aware of how other countries process their criminal cases to determine whether we can learn from them. It discusses archetypes of criminal procedure as teaching tools, applications of comparative models in the post-investigative stage of criminal procedure, the right to an oral immediate trial and the right to confront witnesses, and the division of labor between lay and professional judges in deciding facts, guilt, and sentencing. By immersing oneself in comparative law and the history of …

Post-Crawford: Time To Liberalize The Substantive Admissibility Of A Testifying Witness's Prior Consistent Statements, Lynn Mclain

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The United States Supreme Court's 1995 decision in Tome v. United States has read Federal Rule of Evidence 801(d)(1)(B) to prevent the prosecution's offering a child abuse victim's prior consistent statements as substantive evidence. As a result of that decision, the statements will also be inadmissible even for the limited purpose of helping to evaluate the credibility of a child, if there is a serious risk that the out-of-court statements would be used on the issue of guilt or innocence.

Moreover, after the Court's March 2004 decision in Crawford v. Washington, which redesigned the landscape of Confrontation Clause analysis, other …

The Lessons Of People V. Moscat: Confronting Judicial Bias In Domestic Violence Cases Interpreting Crawford V. Washington, David Jaros

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Crawford v. Washington was a groundbreaking decision that radically redefined the scope of the Confrontation Clause. Nowhere has the impact of Crawford and the debate over its meaning been stronger than in the context of domestic violence prosecutions. The particular circumstances that surround domestic violence cases 911 calls that record cries for help and accusations, excited utterances made to responding police officers, and the persistent reluctance of complaining witnesses to cooperate with prosecutors -- combine to make the introduction of "out-of-comment statements" a critical component of many domestic violence prosecutions. Because domestic violence cases are subject to a unique set …

An Honest Approach To Plea Bargaining, Steven P. Grossman

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In this Article, the author argues that differential sentencing of criminal defendants who plead guilty and those who go to trial is, primarily, a punishment for the defendant exercising the right to trial. The proposed solution requires an analysis of the differential sentencing motivation in light of the benefit to society and the drawbacks inherent in the plea bargaining system.

The Innocence Protection Act Of 2004: A Small Step Forward And A Framework For Larger Reforms, Ronald Weich

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Passage of the Innocence Protection Act in the closing days of the 108th Congress was a watershed moment. To be sure, the bill that finally became law was a shadow of the more ambitious criminal justice reforms first championed five years earlier by Senator Pat Leahy, Congressman Bill Delahunt and others. But the enactment of legislation designed to strengthen — not weaken — procedural protections for death row inmates was rich in symbolic importance and promise.

Writing in the April 2001 issue of THE CHAMPION (Innocence Protection Act: Death Penalty Reform on the Horizon), I said optimistically: "The criminal justice …

The Botched Hanging Of William Williams: How Too Much Rope And Minnesota’S Newspapers Brought An End To The Death Penalty In Minnesota, John Bessler

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This article describes Minnesota's last state-sanctioned execution: that of William Williams, who was hanged in 1906 in the basement of the Ramsey County Jail. Convicted of killing a teenage boy, Williams was tried on murder charges in 1905 and was put to death in February of the following year. Because the county sheriff miscalculated the length of the rope, the hanging was botched, with Williams hitting the floor when the trap door was opened. Three deputies, standing on the scaffold, thereafter seized the rope and forcibly pulled it up until Williams - fourteen and half minutes later - died by …

A Healer Or An Executioner: The Proper Role Of A Psychiatrist In A Criminal Justice System, Gregory Dolin

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This article argues that despite the benefits of ridding the criminal justice system of some uncertainty and ignorance with respect to mental health issues, the very close involvement of psychiatrists in the criminal justice system as practiced in the United States is not only illogical and bad policy, but also unethical from the viewpoint of medical ethics. Part II of this article will lay the groundwork for the argument by discussing the history of the insanity defense, and of science's involvement with criminal justice; while Part III, will look into the association of science and the administration of justice in …

Juries, Drug Laws & Sentencing (Symposium), Nancy S. Marder

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No abstract provided.

Official Privilege: State Security And The Right To A Fair Trial In The Usa, Stephen C. Thaman

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The emphasis of this paper is on the effect of the state claiming a privilege of national security in a criminal case, either to: (1) prevent the defendant from gaining discovery of classified information which could be important in defending against the criminal charges; or (2) prevent the defendant from introducing classified evidence in his/her own defense, access to which has usually been gained by virtue of the defendant’s own activity with the intelligence services (CIA, FBI) or other police agencies. The state often claims national security in situations where the state itself is either dealing with criminals or using …

Book Review. Courts And Transition In Russia: The Challenge Of Judicial Reform, By Peter H. Solomon, Jr. And Todd S. Foglesong, Stephen C. Thaman

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This is a book review applauding Peter H. Solomon and Todd S. Foglesong’s book Courts and Transition in Russia: The Challenge of Judicial Reform, written by Professor Stephen C. Thaman. Professor Thaman provides his thoughts on the possibility of Russian reform success.

The Jury's Role In Administering Justice In The U.S. Introduction To Saint Louis Public Law Review Jury Issue, Stephen C. Thaman

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This introduction to the special jury issue of Saint Louis University’s Public Law Review briefly discusses the Conference “Lay Participation in the Criminal Trial in the Twenty-First Century,” in which all of the contributors to this issue participated. The conference took place at the International Institute for Higher Studies in the Criminal Sciences in Siracusa, Italy from May 25-29, 1999. It also discusses select papers and perspectives on the American jury system published in this issue of the journal.

Latin America's First Modern System Of Lay Participation: The Reform Of Inquisitorial Justice In Venezuela, Stephen C. Thaman

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This article describes the new Venezuelan jury and mixed court systems that were introduced by Codigo Organico Procesal Penal in 1998, in the context of the code’s radical transition to accusatorial and adversarial procedure.

Innocence Protection Act: Death Penalty Reform On The Horizon, Ronald Weich

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The criminal justice pendulum may be swinging back in the direction of fairness. The Innocence Protection Act of 2001, introduced in both the Senate and the House of Representatives earlier this year, promises meaningful reforms in the administration of capital punishment in the United States.

Unlike previous slabs at reform, the Innocence Protection Act (lPA) has a real chance to become law because it commands unusually broad bipartisan support. The Senate bill (S. 486) is sponsored by Democrat Pat Leahy of Vermont and Republican Gordon Smith of Oregon. The House bill (H.R. 912) is sponsored by Democrat Bill Delahunt of …

Miranda In Comparative Law, Stephen C. Thaman

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Not only have the Miranda warnings become a recognized procedure in police interrogations in the United States, but they have been adopted or strengthened over the years in formerly inquisitorial countries like Germany, Italy, Spain and most recently France, and are now recognized as having constitutional status. This article discusses the protections afforded to criminal suspects and defendants overseas when faced with interrogation by police, prosecutors, investigating magistrates or judges of the investigation. It compares the admonitions given to such suspects with those provided in the Miranda decision and discusses their constitutional, or statutory status. It further discusses when such …

Comparative Criminal Law And Enforcement: Russia, Stephen C. Thaman

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This chapter assesses criminal law and enforcement in Russia. It addresses the history of the Russian criminal justice system and its reform, as well as Russia’s criminal procedure and substantive criminal law.

Is America A Systematic Violator Of Human Rights In The Administration Of Criminal Justice?, Stephen C. Thaman

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This article focuses on vast American violations of human rights in the administration of criminal justice. It traces the development of these rights in the context of the two most pernicious human rights violations plaguing the United States: the death penalty and racism in the enforcement of criminal laws. The author calls attention to the politicization of the American justice system and its devastatingly negative impact on America’s preservation of human rights.

The Separation Of Questions Of Law And Fact In The New Russian And Spanish Jury Verdicts, Stephen C. Thaman

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This article discusses the division of labor between the judge and the jury in rendering judgment, and the separation of law and fact historically and currently, focusing on Spain and Russia. Both Russia and Spain rejected the Anglo-American general verdict of “guilty” or “not-guilty” in favor of a list of questions or propositions presented to the jury during their criminal procedure reforms of the 1990’s. This article also delves into the jury deliberation, verdict, and judgment process of the two countries.