Criminal Procedure Commons^™

Covenants For The Sword, Alice Ristroph

Faculty Scholarship

No abstract provided.

Changes To The Culture Of Adversarialness: Endorsing Candor, Cooperation And Civility In Relationships Between Prosecutors And Defense Counsel, Stacy Caplow, Lisa Griffin

Faculty Scholarship

No abstract provided.

Clarity And Confusion: Rico's Recent Trips To The United States Supreme Court, Randy D. Gordon

Faculty Scholarship

The complicated structure of the Racketeer and Corrupt Organization Act has bedeviled courts courts and litigants since its adoption four decades ago. Two questions have recurred with some frequency. First, is victim reliance an element of a civil RICO claim predicated on allegations of fraud? Second, what is the difference between an illegal association-in-fact and an ordinary civil conspiracy? In a series of three recent cases, the United States Supreme Court brought much needed clarity to the first question. But in another recent case, the Court upended decades of circuit-court precedent holding that an actionable association-in-fact must be embody a …

Attribution Of Criminal Liability A Critical Comparison Of The Us Doctrine Of Conspiracy And The Icty Doctrine Of Joint Criminal Enterprise From An American Perspective, Mark A. Summers

Faculty Scholarship

No abstract provided.

Prosecution Without Representation, Douglas L. Colbert

Faculty Scholarship

Nearly 50 years after the Supreme Court's landmark ruling in Gideon v. Wainwright established indigent defendants' constitutional right to counsel, poor people throughout the country still remain without a lawyer when first appearing before a judicial officer who determines pretrial liberty or bail. Absent counsel, low-income defendants unable to afford bail remain in jail for periods ranging from 3-70 days until assigned counsel appears in-court. Examining Walter Rothgery's wrongful prosecution, the article includes a national survey that informs readers about the limited right to counsel at the initial appearance and the extent of delay in each of the 50 states. …

School Children And Parolees: Not So Special Anymore, Edwin Butterfoss

Faculty Scholarship

The Fourth Amendment special needs exception may be one of the Court’s most puzzling doctrines. Since its origin, the Court has struggled to define its limits and its place in the Court’s suspicionless search and seizure jurisprudence. At times the Court has suggested that the exception is the only route to upholding a search or seizure in the absence of individualized suspicion, while at other times it has stated that it is just one of a limited number of exceptions to the requirement of individualized suspicion. Historically, while the application of the special needs exception has been unpredictable, one thing …

Blood Sugar Sex Magik: A Review Of Postconviction Dna Testing Statutes And Legislative Recommendations, Justin Brooks, Alexander Simpson

Faculty Scholarship

Forty-eight states, the District of Columbia, and the federal government have adopted some form of postconviction DNA testing law. Some significant challenges arise when these laws are applied to cases like Richards, which do not involve rape kits but rather require a broader view of how DNA testing can prove innocence. Furthermore, the laws are not uniform, and in the politically charged atmosphere of criminal lawmaking, some of the laws are poorly thought out. This Article reviews these postconviction statutes from the perspective of practitioners who litigate these cases, while also exploring the major questions that ought to be addressed …

Real Rape, Too, Bennett Capers

Faculty Scholarship

No abstract provided.

Statutory Interpretation, Morality, And The Text, Lawrence Solan

Faculty Scholarship

No abstract provided.

The Supreme Court's Love-Hate Relationship With Miranda, Kit Kinports

Faculty Scholarship

In recent years, the Supreme Court has enjoyed a love-hate relationship with its landmark decision in Miranda v. Arizona. While the Court has not hesitated to narrow Miranda’s reach, it has also been wary of deliberate efforts to circumvent it. This pragmatic approach to Miranda can be doctrinally unsatisfying and even incoherent at times, but it basically maintains the core structure of Miranda as the police have come to know and adapt to it.

Last Term provided the first glimpse of the Roberts Court’s views on Miranda, as the Court considered three Miranda cases: Maryland v. Shatzer …

Somebody's Watching Me: Fcpa Monitorships And How They Can Work Better, F. Joseph Warin, Michael S. Diamant, Veronica S. Root

Faculty Scholarship

This article explores the rise of the corporate compliance monitor as a condition for settling violations of the U.S. Foreign Corrupt Practices Act (“FCPA”) — a setting in which federal prosecutors routinely impose monitors. If U.S. enforcement authorities maintain their current approach, the reality is that companies facing liability for violating the FCPA are likely to have a monitor imposed on them as part of a settlement agreement. From the U.S. government’s perspective, monitorships make sense for companies that violate anti-bribery laws, making it important for offending corporations to learn how to deal with monitors. Pulling from the authors’ extensive …

Inside-Out Enforcement, Lisa Kern Griffin

Faculty Scholarship

No abstract provided.

Cooperation's Cost, Miriam H. Baer

Faculty Scholarship

No abstract provided.

Home Is Where The Crime Is, Bennett Capers

Faculty Scholarship

No abstract provided.

The Canadian Criminal Jury, Neil Vidmar, Regina Schuller

Faculty Scholarship

The Canadian criminal jury system has some unique characteristics. In contrast to American law, that gives precedent to free speech over fair trial, and English law, that favors fair trial over free speech, Canadian law occupies a middle ground balancing these competing values .Jury selection procedure in most trials is similar to that of England: jurors are assumed to be “impartial between the Queen and the accused” and are selected without a voir dire. However, in cases involving exceptional pretrial publicity or involving accused persons from racial or ethnic minority groups, jurors are vetted by a “challenge for cause” process …

Minority Practice, Majority's Burden: The Death Penalty Today, James S. Liebman, Peter Clarke

Faculty Scholarship

Although supported in principle by two-thirds of the public and even more of the States, capital punishment in the United States is a minority practice when the actual death-sentencing practices of the nation's 3000-plus counties and their populations are considered This feature of American capital punishment has been present for decades, has become more pronounced recently, and is especially clear when death sentences, which are merely infrequent, are distinguished from executions, which are exceedingly rare.

The first question this Article asks is what forces account for the death-proneness of a minority of American communities? The answer to that question – …

Pot As Pretext: Marijuana, Race, And The New Disorder In New York City Street Policing, Amanda Geller, Jeffrey Fagan

Faculty Scholarship

Although possession of small quantities of marijuana has been decriminalized in New York State since the late 1970s, arrests for marijuana possession in New York City have increased more than tenfold since the mid-1990s, and remain high more than 10 years later. This rise has been a notable component of the city’s “Order Maintenance Policing” strategy, designed to aggressively target low-level offenses, usually through street interdictions known as “stop, question, and frisk” activity. We analyze data on 2.2 million stops and arrests carried out from 2004 to 2008, and identify significant racial disparities in the implementation of marijuana enforcement. These …

Courts' Increasing Consideration Of Behavioral Genetics Evidence In Criminal Cases: Results Of A Longitudinal Study, Deborah W. Denno

Faculty Scholarship

This article, which is part of a symposium honoring David Baldus, presents a unique study of all criminal cases (totaling thirty-three) that addressed behavioral genetics evidence from June 1, 2007, to July 1, 2011. The study builds upon this author’s prior research on all criminal cases (totaling forty-eight) that used such evidence during the preceding thirteen years (1994-2007). This combined collection of eighty-one criminal cases employing behavioral genetics evidence offers a rich context for determining how the criminal justice system has been handling genetics factors for nearly two decades, but also why the last four years reveal particularly important discoveries. …

Developing Standards Of Conduct For Prosecutors And Criminal Defense Lawyers, Bruce A. Green

Faculty Scholarship

No abstract provided.

Aba's Project To Revise The Criminal Justice Standards For The Prosecution And Defense Functions, Rory K. Little

Faculty Scholarship

No abstract provided.

From Harmelin To Graham - Justice Kennedy Stakes Out A Path To Proportional Punishment, Eva Nilsen

Faculty Scholarship

Graham v. Florida³ is a groundbreaking decision because it revives punishment doctrine on two issues that have lain dormant since Harmelin v. Michigan⁴: proportionality and individualized sentencing. Although it doesn't overrule Harmelin, by recognizing the continued vitality of Weems⁵ and Solem ⁶ the Graham decision appears to acknowledge that the Court's approach to proportionality since Harmelin may be too restrictive for the U.S. justice system today. In Solem, the Court affirmed its Constitutional role in ensuring just punishment; in Graham, the Court reaffirms that role.

Harmelin has had an enormous and regrettable impact …

Gideon'S Ghost: Providing The Sixth Amendment Right To Counsel In Times Of Budgetary Crisis, Heather P. Baxter

Faculty Scholarship

This Article discusses how the budget crisis, caused by the recent economic downturn, has created a constitutional crisis with regard to the Sixth Amendment Right to Counsel. The landmark case of Gideon v. Wainwright required states, under the Sixth Amendment, to provide free counsel to indigent criminal defendants. However, as a result of the current financial crisis, many of those who represent the indigent have found their funding cut dramatically. Consequently, Gideon survives, if at all, only as a ghostly shadow prowling the halls of criminal justice throughout the country.

This Article analyzes specific budget cuts from various states and …

Thinking Like A Public Interest Lawyer: Theory, Practice, And Pedagogy, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

The Confrontation Clause And The Hearsay Rule: What Hearsay Exceptions Are Testimonial?, Paul W. Grimm, Jerome E. Deise, John R. Grimm

Faculty Scholarship

No abstract provided.

Rereading Rauscher Is It Time For The United States To Abandon The Rule Of Specialty, Mark A. Summers

Faculty Scholarship

No abstract provided.

View From The Trenches: The Struggle To Free William Richards, Jan Stiglitz

Faculty Scholarship

This article discusses the circumstantial evidence against a wrongly convicted man and the California Innocence Project's efforts to seek his release.

"And I Don't Know Why It Is That You Threw Your Life Away": Abolishing Life Without Parole, The Supreme Court In Graham V. Florida Now Requires States To Give Juveniles Hope For A Second Chance, Leslie Culver

Faculty Scholarship

Terrance Graham pled guilty to armed burglary with assault or battery and attempted armed robbery when he was sixteen years old. He was sentenced to prison for the rest of his life. Like Roe v. Wade made history by forcing this country to consider the morality of abortion, so too will the United States Supreme Court's decision in Graham v. Florida make history by challenging the morality of sentencing juveniles for the rest of their lives. After firmly abolishing the death penalty for all juvenile offenders under the age of eighteen, as a violation of the Eighth Amendment's Cruel and …

The California Public Defender: Its Origins, Evolution And Decline, Laurence A. Benner

Faculty Scholarship

No abstract provided.

The Unintentional Rapist, Bennett Capers

Faculty Scholarship

No abstract provided.

Deferring Ineffectiveness Claims To Collateral Review: Ensuring Equal Access And A Right To Appointed Counsel, Thomas M. Place

Faculty Scholarship

The article addresses a problem in criminal procedure that leaves an increasingly large number of defendants without a remedy to protect their right to effective assistance of counsel at trial and on direct appeal. The problem stems from the decision of states to move ineffectiveness claims from direct appeal to the post-conviction process and the fact that over half the states limit access to post-conviction remedies to defendants who are in custody. If the defendant’s prison sentence is completed during the period direct appeal is pending, or, in some jurisdictions, before the collateral review process is completed, the defendant is …