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Articles 121 - 150 of 383
Full-Text Articles in Criminal Procedure
Does Living By The Sword Mean Dying By The Sword, Charles Chernor Jalloh
Does Living By The Sword Mean Dying By The Sword, Charles Chernor Jalloh
Articles
This article examines the right to self-representation in international criminal law, and the common challenges posed for judges effectuating that right in international criminal courts. Using a comparative law approach, the paper demonstrates how the interpretation of that right initially borrowed heavily from U.S. common law and later European civil law to address the problems caused by self-representing, disruptive, and uncooperative defendants. Although the right to self-representation is a Sixth Amendment right in U.S. law, and an equally fundamental one in international law, the author contends that this right seems better in theory than in practice. Indeed, since no self-representing …
The Pastor, The Burning House, And The Double Jeopardy Clause: The True Story Behind Evans V. Michigan, David A. Moran
The Pastor, The Burning House, And The Double Jeopardy Clause: The True Story Behind Evans V. Michigan, David A. Moran
Articles
The true story behind Evans v. Michigan is that a man who was probably innocent, and who would almost certainly have been acquitted by the jury, had his trial shortened after it became obvious to the judge that the police had picked up a man who had nothing to do with the fire. In other words, the facts set forth by the Michigan Supreme Court, and repeated by Alito, were grossly misleading. And because I, like Alito, believed the Michigan Supreme Court’s version of the facts, I made a silly mistake when I agreed to take the case. That silly …
Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures, Eve Brensike Primus
Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures, Eve Brensike Primus
Articles
Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon . Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform give n the many procedural obstacle s that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state …
Did Booker Increase Sentencing Disparity? Why The Evidence Is Unpersuasive, Sonja B. Starr
Did Booker Increase Sentencing Disparity? Why The Evidence Is Unpersuasive, Sonja B. Starr
Articles
The Sentencing Commission’s recent report on the effects of United States v.Booker makes a number of very worri- some claims.The most alarming is that the gap in sen- tences between otherwise similar Black and White men has nearly quadrupled: from 4.5 percent before Booker, to 15 percent after it, to 19.5 percent after United States v. Kimbrough and United States v.Gall. 1 The Commission further claims that interjudge disparity has increased in two-thirds of the federal districts, and that interdistrict variation has also increased.2 If its findings were accurate, and if these changes could be causally attributed to Booker and …
A Rejoinder To Professor Schauer's Commentary, Yale Kamisar
A Rejoinder To Professor Schauer's Commentary, Yale Kamisar
Articles
It is quite a treat to have Professor Frederick Schauer comment on my Miranda article.1 Professor Schauer is a renowned authority on freedom of speech and the author of many thoughtful, probing articles in other areas as well, especially jurisprudence. I am pleased that in large measure, Schauer, too, laments the erosion of Miranda in the last four-and-a-half decades2 and that he, too, was unhappy with the pre-Miranda due process/“totality of circumstances”/“voluntariness” test.3 I also like what Schauer had to say about “prophylactic rules,” a term that has sometimes been used to disparage the Miranda rules.4 As Schauer observes, the …
Four Reforms For The Twenty-First Century, Barry C. Scheck
Four Reforms For The Twenty-First Century, Barry C. Scheck
Articles
What follows are my top four suggestions for judicial action and advocacy that can result in urgently needed and readily achievable reforms. Ass the American Judicature Society and its members consider their agenda and mission for the coming years, each of these issues deserves their support.
Finding The Proper Measure For Conditions Of Pretrial Confinement, Alexander A. Reinert
Finding The Proper Measure For Conditions Of Pretrial Confinement, Alexander A. Reinert
Articles
Comment in response to Catherine T. Struve, The Conditions of Pretrial Detention, 161 U. Pa. L. Rev. 1009 (2013).
Notice-And-Comment Sentencing, Richard A. Bierschbach, Stephanos Bibas
Notice-And-Comment Sentencing, Richard A. Bierschbach, Stephanos Bibas
Articles
The article argues that criminal sentencing, often perceived as a singular, justice-focused moment, is in reality a complex, fragmented process heavily influenced by prosecutorial discretion and plea bargaining. It contends that public participation, inspired by principles of administrative law, could enhance the fairness, transparency, and legitimacy of sentencing and related processes, such as charging and plea bargaining. By integrating public input and structured decision-making, the criminal justice system could better align with democratic values and address systemic disparities.
Revisiting "Special Needs" Theory Via Airport Searches, Alexander A. Reinert
Revisiting "Special Needs" Theory Via Airport Searches, Alexander A. Reinert
Articles
Controversy has raged since the Transportation Security Administration (TSA) introduced Advanced Imaging Technology, capable of producing detailed images of travelers' bodies, and "enhanced" pat frisks as part of everyday airport travel. In the face of challenges in the courts and in public discourse, the TSA has justified the heightened security measures as a necessary means to prevent terrorist attacks. The purpose of this Essay is to situate the Fourth Amendment implications of the new regime within a broader historical context. Most germane, after the Federal Aviation Administration (FAA) introduced sweeping new screening of air travelers in the 1960s and 1970s …
No Justice In Utah's Justice Courts: Constitutional Issues, Systemic Problems, And The Failure To Protect Defendants In Utah's Infamous Local Courts, Samuel P. Newton
No Justice In Utah's Justice Courts: Constitutional Issues, Systemic Problems, And The Failure To Protect Defendants In Utah's Infamous Local Courts, Samuel P. Newton
Articles
No abstract provided.
Africa And The International Criminal Court, Charles C. Jalloh
Africa And The International Criminal Court, Charles C. Jalloh
Articles
No abstract provided.
Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman
Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman
Articles
Crawford v. Washington radically transformed the doctrine governing the Confrontation Clause of the Sixth Amendment to the Constitution. Before Crawford, a prosecutor could introduce against an accused evidence of a hearsay statement, even one made in contemplation that it would be used in prosecution, so long as the statement fit within a "firmly rooted" hearsay exception or the court otherwise determined that the statement was sufficiently reliable to warrant admissibility. Crawford recognized that the Clause is a procedural guarantee, governing the manner in which prosecution witnesses give their testimony. Therefore, a prosecutor may not introduce a statement that is testimonial …
Shaken Baby Syndrome, Abusive Head Trauma, And Actual Innocence: Getting It Right, Keith A. Findley, Patrick D. Barnes, David A. Moran, Waney Squier
Shaken Baby Syndrome, Abusive Head Trauma, And Actual Innocence: Getting It Right, Keith A. Findley, Patrick D. Barnes, David A. Moran, Waney Squier
Articles
In the past decade, the existence of shaken baby syndrome (SBS) has been called into serious question by biomechanical studies, the medical and legal literature, and the media. As a result of these questions, SBS has been renamed abusive head trauma (AHT). This is, however, primarily a terminological shift: like SBS, AHT refers to the two-part hypothesis that one can reliably diagnose shaking or abuse from three internal findings (subdural hemorrhage, retinal hemorrhage, and encephalopathy) and that one can identify the perpetrator based on the onset of symptoms. Over the past decade, we have learned that this hypothesis fits poorly …
Who Said The Crawford Revolution Would Be Easy?, Richard D. Friedman
Who Said The Crawford Revolution Would Be Easy?, Richard D. Friedman
Articles
One of the central protections of our system of criminal justice is the right of the accused in all criminal prosecutions "to be confronted with the witnesses against him." It provides assurance that prosecution witnesses will give their testimony in the way demanded for centuries by Anglo-American courts-in the presence of the accused, subject to cross-examination- rather than in any other way. Witnesses may not, for example, testify by speaking privately to governmental agents in a police station or in their living rooms. Since shortly after it was adopted, however, the confrontation right became obscured by the ascendance of a …
The Sky Is Still Not Falling, Richard D. Friedman
The Sky Is Still Not Falling, Richard D. Friedman
Articles
Cases since Crawford have mainly fallen into two categories. One involves accusations of crime, made by the apparent victim shortly after the incident. In Michigan v. Bryant, a majority of the Court adopted an unfortunately constricted view of the word "testimonial" in this context. That decision was a consequence of the Court having failed to adopt a robust view of when an accused forfeits the confrontation right. How the Court will deal with this situation-one mistake made in an attempt to compensate for another-is a perplexing and important question. This Essay, though, concentrates on the other principal category of post-Crawford …
The Loss Of Constitutional Faith: Mccleskey V. Kemp And The Dark Side Of Procedure, Scott E. Sundby
The Loss Of Constitutional Faith: Mccleskey V. Kemp And The Dark Side Of Procedure, Scott E. Sundby
Articles
No abstract provided.
The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar
The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar
Articles
There has been a good deal of talk lately to the effect that Miranda1 is dead or dying-or might as well be dead.2 Even liberals have indicated that the death of Miranda might not be a bad thing. This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."4
A Fresh Cut In An Old Wound–A Critical Analysis Of The Trayvon Martin Killing: The Public Outcry, The Prosecutors’ Discretion, And The Stand Your Ground Law, Tamara F. Lawson
A Fresh Cut In An Old Wound–A Critical Analysis Of The Trayvon Martin Killing: The Public Outcry, The Prosecutors’ Discretion, And The Stand Your Ground Law, Tamara F. Lawson
Articles
If the Trayvon Martin/George Zimmerman case is to have value beyond its immediate facts, it is important to consider the case through a broad lens that encompasses law, politics, and culture and the relevant intersectionality of each. This essay gives a contextualized historical perspective with which to view the Black community’s reaction to the initial lack of criminal charges in the case. It explains why the circumstances surrounding Trayvon’s death were experienced as a fresh cut in an old, but deep, collective wound, for many Blacks. It addresses the exacerbation African Americans felt regarding law enforcement’s perceived indifference towards Trayvon, …
Requiring Miranda Warnings For The Christmas Day Bomber And Other Terrorists, Malvina Halberstam
Requiring Miranda Warnings For The Christmas Day Bomber And Other Terrorists, Malvina Halberstam
Articles
No abstract provided.
Alternative Elements, Jessica A. Roth
Alternative Elements, Jessica A. Roth
Articles
The U.S. Constitution provides a criminal defendant with a right to trial by jury, and most states and the federal government require criminal juries to agree unanimously before a defendant may be convicted. But what exactly must a jury agree upon unanimously? Well-established doctrine, pursuant to In re Winship, provides that the jury must agree that the prosecution has proven every element of the offense beyond a reasonable doubt. Yet what the elements of any given offense are is not as clear as one might expect. Frequently, criminal statutes—especially federal statutes—describe an array of prohibited conduct, leaving ambiguous whether …
The Police Gamesmanship Dilemma, Mary D. Fan
The Police Gamesmanship Dilemma, Mary D. Fan
Articles
Police gamesmanship poses a recurring regulatory challenge for constitutional criminal procedure, leading to zigzags and murky zones in the law such as the recent rule shifts regarding searches incident to arrest and interrogation. Police gamesmanship in the “competitive enterprise of ferreting out crime” involves tactics that press on blind spots, blurry regions or gaps in rules and remedies, undermining the purpose of the protections. Currently, courts generally avoid peering into the Pandora’s Box of police stratagems unless the circumvention of a protection becomes too obvious to ignore and requires a stopgap rule-patch that further complicates the maze of criminal procedure. …
The Impact Of Ashcroft V. Iqbal On Pleading, Alexander A. Reinert
The Impact Of Ashcroft V. Iqbal On Pleading, Alexander A. Reinert
Articles
The article critically examines the Supreme Court’s decision in *Ashcroft v. Iqbal*, which extended the plausibility pleading standard to all civil actions, and argues that this ruling has led to significant inconsistencies in lower court applications, raised Seventh Amendment concerns, and potentially excluded meritorious cases from judicial review. The analysis emphasizes the need for clarity and uniformity in pleading standards while proposing reforms to align the plausibility standard with constitutional and procedural fairness principles.
Controlling Sexually Violent Predators: Continued Incarceration At What Cost?, Tamara Rice Lave
Controlling Sexually Violent Predators: Continued Incarceration At What Cost?, Tamara Rice Lave
Articles
Sexually violent predator (SVP) laws are inherently suspicious because they continue to incarcerate people not because of what they have done, but because of what they might do. I focus on three major criticisms of the laws. First, I use recent recidivism data to challenge the core motivation for the SVP laws-that sex offenders are monsters who cannot control themselves. Second, I situate the laws theoretically as examples of what Feeley and Simon call the "new penology." I argue that the SVP laws show the limited promise of the new penology—that we can use science to predict risk accurately--because the …
Gideon'S Vuvuzela: Reconciling The Sixth Amendments Promises With The Doctrines Of Forfeiture And Implicit Waiver Of Counsel, Sarah Gerwig-Moore
Gideon'S Vuvuzela: Reconciling The Sixth Amendments Promises With The Doctrines Of Forfeiture And Implicit Waiver Of Counsel, Sarah Gerwig-Moore
Articles
Dating back to the early decades of the twentieth century, the United States Supreme Court has articulated clear, venerable standards for the waiver of constitutional rights--and in particular the right to counsel. This is a rich area for both litigation and teaching, if only to be able to repeat phrases such as "courts indulge every reasonable presumption against waiver" and "we do not presume acquiescence in the loss of fundamental rights." A defendant must proceed with "eyes open," and a waiver will not be presumed from a "silent record." Consistently affirmed and reaffirmed by the United States Supreme Court and …
Pretrial Incentives, Post-Conviction Review, And Sorting Criminal Prosecutions By Guilt Or Innocence, Samuel R. Gross
Pretrial Incentives, Post-Conviction Review, And Sorting Criminal Prosecutions By Guilt Or Innocence, Samuel R. Gross
Articles
The fundamental problem with false convictions is that they are unobserved, and in general, unobservable. We don't spot them when they happen-if we did, they wouldn't happen-and in most cases we can't identify them after the fact. We have no general reliable test for innocence or guilt; if we did, we'd use it at trial. As result, we often say that we don't know for sure whether a convicted criminal defendant is innocent or guilty, or even that we can't know for sure. But this isn't exactly true-or rather, its truth depends on who we mean by "we."
Juvenile Life Without Parole: Unconstitutional In Michigan?, Kimberly A. Thomas
Juvenile Life Without Parole: Unconstitutional In Michigan?, Kimberly A. Thomas
Articles
Last term, in Graham v Florida,1 the United States Supreme Court found unconstitutional the sentence of life without parole for a juvenile who committed a non-homicide offense. This attention to the sentencing of juvenile offenders is a continuation of the Court's decision in Roper v Simmons,2 in which the Court held that juvenile offenders could not constitutionally receive the death penalty. This scrutiny should be a signal to Michigan to examine its own jurisprudence on juveniles receiving sentences of life without parole. Michigan has the second-highest number of persons serving sentences of life without parole for offenses committed when they …
Who Must Testify To The Results Of A Forensic Laboratory Test? Bullcoming V. New Mexico, Richard D. Friedman
Who Must Testify To The Results Of A Forensic Laboratory Test? Bullcoming V. New Mexico, Richard D. Friedman
Articles
Does the Confrontation Clause permit the prosecution to introduce a forensic laboratory report through the in-court testimony of a supervisor or other person who did not perform or observe the reported test?
The Illusory Right To Counsel, Eve Brensike Primus
The Illusory Right To Counsel, Eve Brensike Primus
Articles
Imagine a woman wrongly accused of murdering her fiance. She is arrested and charged with first-degree murder. If convicted, she faces a mandatory sentence of life without the possibility of parole. Her family scrapes together enough money to hire two attorneys to represent her at trial. There is no physical evidence connecting her to the murder, but the prosecution builds its case on circumstantial inferences. Her trial attorneys admit that they were so cocky and confident that she would be acquitted that they did not bother to investigate her case or file a single pre-trial motion. Rather, they waived the …
Hanging On By A Thread: The Exclusionary Rule (Or What's Left Of It) Lives For Another Day, David A. Moran
Hanging On By A Thread: The Exclusionary Rule (Or What's Left Of It) Lives For Another Day, David A. Moran
Articles
Back when there was a Soviet Union, foreign intelligence officers would anxiously await the May Day parade in Moscow to see who would be standing next to the chairman of the Communist Party and who would be missing from the reviewing platform altogether. Since the Soviet government and the statecontrolled press published very little about what was really going on in the halls of state power, this was considered the most reliable way to determine who was in or out of favor and, by extension, how the domestic and foreign policies of the world's second most powerful country were likely …
Throwing Away The Key: Has The Adam Walsh Act Lowered The Threshold For Sexually Violent Predator Commitments Too Far?, Tamara Rice Lave
Throwing Away The Key: Has The Adam Walsh Act Lowered The Threshold For Sexually Violent Predator Commitments Too Far?, Tamara Rice Lave
Articles
No abstract provided.