Criminal Procedure Commons^™

Constitutional Criminal Procedure, Charles E. Cox Jr.

Mercer Law Review

Each year the United States Supreme Court and the United States Court of Appeals for the Eleventh Circuit issue numerous decisions concerning the rights afforded to criminal defendants by the United States Constitution. This Article surveys selected Eleventh Circuit and Supreme Court decisions issued in 2013 that will likely be of interest to criminal law practitioners.

Federal Sentencing Guidelines, Rosemary Cakmis

Mercer Law Review

In recent years, the United States Sentencing Guidelines (USSG, or the Guidelines) for offenses involving drugs, immigration, fraud and theft, and firearms have consistently been applied more frequently at federal sentencings than any other primary offense guidelines. The Guidelines allow for consequential enhancements, many related to victims and criminal history. These Guidelines, especially the enhancements, dominated the precedential guideline decisions of the United States Court of Appeals for the Eleventh Circuit in 2013. This Article focuses on the recurring issues in those decisions.

Permissive Discrimination: How Committing A Crime Makes You A Criminal In Georgia, Luke Caselman

Mercer Law Review

No abstract provided.

Suspects Beware: Silence In Response To Police Questioning Could Prove As Fatal As A Confession, Larissa L. Ollivierre

Mercer Law Review

The Fifth Amendment to the United States Constitution' provides that "[nlo person shall be . . . compelled in any criminal case to be a witness against himself."' The Fifth Amendment guarantees a right against government-compelled self-incrimination. A person may invoke the right against self-incrimination when he believes he is being forced by a government official to implicate himself in any crime, and his belief is reasonable considering his situation. If his belief is reasonable, he is not required to answer the incriminating question, and he cannot be punished for refusing to answer.

The right to remain silent, as declared …

Death Penalty, Josh D. Moore

Mercer Law Review

The Georgia Supreme Court addressed numerous cases touching on the death penalty in our survey period, including the review of four death sentences on direct appeal in Ellington v. State, Rice v. State, Barrett v. State, and Brockman v. State. Three of the death sentences reviewed on direct appeal were affirmed and one was reversed. The court also reversed the decision of a habeas court to vacate a death sentence in Humphrey v. Riley. Several other cases involving the death penalty at various stages of trial were also decided and will be addressed further as …

Federal Criminal Discovery Reform: A Legislative Approach, Bruce A. Green

Mercer Law Review

Suppose that federal prosecutors have conducted an investigation culminating in an indictment. Although the prosecutors believe that they have enough evidence to secure a conviction and are personally convinced that the defendant is guilty, some of the evidence they have collected is favorable to the defendant, because it tends to show that the defendant is innocent or that prosecution witnesses should not be believed. Must prosecutors disclose the favorable evidence to defense counsel to use in investigating, advising the defendant, plea negotiations, or trial? Under current federal law, the answer is generally "no." Unless favorable evidence falls within one of …

The Proposed Fairness In Disclosure Of Evidence Act Of 2012: More Cons Than Pros With Proposed Disclosure Requirements In Federal Criminal Cases, Jacquelyn Smith

Mercer Law Review

The proposed Fairness in Disclosure of Evidence Act of 2012 (the Act) is a proposal of uniform standards for disclosing evidence in federal criminal cases that was introduced on March 15, 2012 by Senator Lisa Murkowski of Alaska.' The Act's stated purpose is: "To require the attorney for the Government to disclose favorable information to the defendant in criminal prosecutions brought by the United States, and for

Subverting Brady V. Maryland And Denying A Fair Trial: Studying The Schuelke Report, Bennett L. Gershman

Mercer Law Review

The Schuelke Report about the ill-fated federal prosecution of the late-Senator Ted Stevens is an extraordinary contribution to criminal procedure. No other official documentation or investigative study of a criminal prosecution, to my knowledge, has dissected and analyzed as carefully and thoroughly the sordid and clandestine actions of a team of prosecutors who zealously wanted to win a criminal conviction at all costs. In examining this Report, one gets the feeling that as the investigation and prosecution of Senator Stevens unfolded and the prosecution's theory of guilt unraveled, the prosecutors became indifferent to the defendant's guilt or innocence. They just …

Prosecutorial Disclosure Violations: Punishment Vs. Treatment, Kevin C. Mcmunigal

Mercer Law Review

Recent scholarship on prosecutorial disclosure violations proposes preventing violations through understanding and remedying the causes of violations, such as cognitive error. Scholars who adopt this view-what I call here the "treatment perspective"-often call for greater transparency and cooperation from prosecutors. A frequently unacknowledged tension exists between such a treatment perspective and a more traditional perspective-what I call here the "punishment perspective"-that seeks to deter disclosure violations through greater use of sanctions such as professional discipline.

The tension arises because increasing the certainty and severity of sanctions, as the punishment perspective urges, creates a powerful disincentive for individual prosecutors and prosecutor …

Death Penalty, Josh D. Moore

Mercer Law Review

Between June 1, 2011 and May 31, 2012, the Georgia Supreme Court addressed several significant points of law in the context of death penalty litigation. The court grappled with two challenging speedy trial issues, one constitutional and the other statutory, in Phan v. State and Walker v. State, respectively. The court announced a new rule on the calculation of time limitations for impeachable convictions in Clay v. State. The court revisited the subject of burden of proof in mental retardation cases in Stripling v. State. And the court articulated a clear standard for evaluating prejudice in a …

Crack, Congress, And The Normalization Of Federal Sentencing: Why 12,040 Federal Inmates Believe That Their Sentences Should Be Reduced, And Why They And Others Like Them May Be Right, Michael Mcneill

Mercer Law Review

The 1980s was a transitionary period in American history, when the general acceptance of casual drug use, which is still associated with the 1960s and 1970s, began to turn to widespread disapproval. The practice and dangers of "freebasing"-smoking cocaine that had been purified with ether and inhaled over an open flame-came into the public spotlight in 1980 when a prominent comedian immolated himself in an accident blamed on the dangerous practice. Beginning in 1984, a cheaper, more accessible form of freebase cocaine, called "crack," began growing in popularity in New York, Miami, and Los Angeles. In November 1985, newspapers began …

Municipal Liability? Not So Fast: What Connick V. Thompson Means For Future Prosecutorial Misconduct, T. Owen Farist

Mercer Law Review

In Connick v. Thompson, the United States Supreme Court held that, under section 1983 of title 42 of the United States Code, the Orleans Parish District Attorney's actions failed to rise to the level of deliberate indifference required for municipal liability. The Court affirmed the possibility of "single-incident" municipal liability hypothesized in City of Canton v. Harris as an exception to the ordinary requirement of a pattern of similar violations necessary to prove the stringent standard of deliberate indifference to a known or obvious consequence. Despite upholding the validity of the exception, the Court found that Thompson's case did …

Davis And The Good Faith Exception: Pushing Exclusion To Extinction?, Eleanor De Golian

Mercer Law Review

To mitigate the effects of unlawful searches and remain faithful to the Fourth Amendment to the United States Constitution, the United States Supreme Court created the exclusionary rule, which requires lower courts to suppress evidence obtained from illegal searches. The Court, however, has recognized exceptions to the exclusionary rule, many of which involve police officers' "good faith" reliance on what they believe to be legal authority to search. In Davis v. United States, the Supreme Court held that, where a police officer relies on binding precedent in performing a search, the Fourth Amendment exclusionary rule will not be used …

State V. Jackson And The Explosion Of Liability For Felony Murder, Brian E. Brupbacher

Mercer Law Review

In The Discourses, Niccold Machiavelli wrote, "The dangers involved in conspiracies[] ... are considerable, and go on all the time, for in a conspiracy dangers crop up alike in forming the plot, in carrying it out, and as a result of its having been carried out."' Although by its context this remark refers to conspiracies to commit regicide and the problems these conspiracies pose to the conspirators, this remark well describes practical and legal problems that can result from conspiracies to commit felonies. In Georgia this is particularly true following the June 28, 2010 ruling in State v. Jackson …

Life, Death, And Neuroimaging: The Advantages And Disadvantages Of The Defense's Use Of Neuroimages In Capital Cases -Lessons From The Front, John H. Blume, Emily C. Paavola

Mercer Law Review

Over the past several decades, commentators and scholars from the medical, legal, and social science fields have produced a massive body of literature on the intersection of law and neuroimaging. Earlier writings focused on explaining various new techniques for developing brain images, exploring how such images might be relevant in legal proceedings, and addressing evidentiary issues posed by the use of such images in court. More recent publications correspond with a vast expansion of research and funding in the area of neuroscience and address a wide variety of topics, such as the use of neuroimaging to detect deception, predict recidivism …

The "Green" Effect On White Collar Sentencing: An Analysis Of The Impact Of The Economy On Imprisonment Lengths Of Sentences For Federal White Collar Defendants, Jessica P. Morgan

Mercer Law Review

On June 29, 2009, Bernard L. Madoff was sentenced to 150 years in prison for his creation and perpetration of an unprecedented, worldwide "Ponzi" scheme, which caused an ultimate loss to thousands of investors totaling upwards of $65 billion. Although Madoff's Ponzi scheme caused more investor losses than any one similar scheme in American history, many were shocked by the severity of Madoff's sentence. As a man in his seventies, a sentence of 150 years incarceration is well beyond a life sentence and serves as a symbol to deter those who would engage in similar conduct in the future. ... …

No Witness? No Admission: The Tale Of Testimonial Statements And Melendez-Diaz V. Massachusetts, Jody L. Sellers

Mercer Law Review

In Melendez-Diaz v. Massachusetts, the United States Supreme Court held that the Massachusetts trial court's admission into evidence of forensic "certificates of analysis" violated the Confrontation Clause of the Sixth Amendment. Following Crawford v. Washington, the Supreme Court held that the accused has a right to be confronted with the forensic analysts at trial unless "the analysts [are] unavailable to testify at trial" and the accused "had a prior opportunity to cross-examine" the analysts. Melendez-Diaz will have an important impact on criminal evidence procedure, specifically in regard to the potential growth of notice-and-demand statutes.

Death Penalty Law, Therese Michelle Day

Mercer Law Review

This Article provides a survey of death penalty case law in Georgia from June 1, 2008 through May 31, 2009. The cases included in this Survey were decided by the Georgia Supreme Court on interim appeal and direct appeal, and in one instance, on denial of certiorari by the United States Supreme Court. Discussion is limited to claims that present new issues of law, refine existing law, or are otherwise instructive.

Death Penalty Law, Therese M. Day

Mercer Law Review

This Article provides a survey of death penalty caselaw in Georgia from June 1, 2007 through May 31, 2008. The cases included in this Survey were heard by the Georgia Supreme Court on interim appeal and direct appeal. Discussion is limited to claims that present new issues of law, refine existing law, or are otherwise instructive.

"Insane In The Membrane, Insane In The Brain":1 The Case Of Panetti V. Quarterman, Michael Eric Hooper

Mercer Law Review

In Panetti v. Quarterman, the United States Supreme Court held that the incompetence standard used by the United States Court of Appeals for the Fifth Circuit was overly restrictive and failed to afford proper Eighth Amendment protection to a prisoner convicted of murder. While Ford v. Wainwright established that a prisoner is competent for execution if he or she knows of his or her impending execution and the reason for it, the Court expanded the competency standard in Panetti by holding that a prisoner's awareness of the rationale for an execution is not the same as a rational understanding …

Vigilant Or Vigilante? Procedure And Rationale For Immunity In Defense Of Habitation And Defense Of Property Under The Official Code Of Georgia Annotated §§ 16-3-23, -24, -24.1, And -24.2, Robert Christian Rutledge

Mercer Law Review

Georgia law provides statutory immunity for a person charged with an assault that arose in defense of property including habitation and real property. Such a defense would apply to the scenario above. The procedure for utilizing those immunities, however, is not clear in the applicable statutes, Official Code of Georgia Annotated ("O.C.G.A.") sections 16-3-23, -24, -24.1, and -24.2 (the "Immunity Statutes"), or in recent cases applying those statutes. This Article proposes a procedure for using those immunities as efficiently as possible. While seeking an efficient procedure, this Article also attempts to ascertain the rationale and policies behind the Immunity Statutes. …

School Bullies—They Aren't Just Students: Examining School Interrogations And The Miranda Warning, Elizabeth A. Brandenburg

Mercer Law Review

In the first few weeks of working at the Macon Circuit Public Defender's Office in Macon, Georgia, I represented a juvenile client who was charged with possession of a weapon on school grounds. She was a fourteen-year-old public high school student accused of bringing a knife to school. She did not mean to bring the knife to school, having that morning switched purses, and when she realized the knife was in her bag, she did not know what to do. She did not get caught with the knife in a fight, nor were there ever allegations that she was involved …

Death Penalty Law, Therese M. Day

Mercer Law Review

This Article provides a survey of death penalty case law in Georgia from June 1, 2006 through May 31, 2007. The cases include those that were heard by the Georgia Supreme Court on interim appeal and direct appeal,1 and discussion is limited to claims which present new issues of law, refine existing law, or are otherwise instructive. This Article does not discuss holdings in capital cases that are common to all criminal appeals because these are discussed elsewhere in this Survey.

Georgia V. Randolph: What To Do With A Yes From One But Not From Two?, Nathan A. Wood

Mercer Law Review

In Georgia v. Randolph, the United States Supreme Court held that when an officer asks two physically present occupants of the same shared residence for permission to search, that search is unreasonable under the Fourth Amendment to the United States Constitution when one occupant denies permission to search, though the other consents. In so holding, the Court created a new standard in which "widely held social expectations" dictate whether it is reasonable to assume an occupant has the authority to consent to a search.

Kansas V. Marsh: A Thumb On The Scale Of Death?, Elizabeth Brandenburg

Mercer Law Review

In Kansas v. Marsh, the United States Supreme Court held that it is not unconstitutional for a state's death penalty statute to require a death sentence when a sentencing jury finds aggravating and mitigating factors to be in equipoise. Extending its previous decision in Walton v. Arizona, the Court explicitly determined that this type of sentencing met the requirements of Furman v. Georgia and Gregg v. Georgia, holding that no other constraint is imposed by the Constitution. While the repercussions of this decision may not be widely felt, they do indicate the direction the Court is heading …

Definitely Not Harmless: The Supreme Court Holds That The Erroneous Disqualification Of Retained Counsel Warrants Automatic Reversal In United States V. Gonzalez-Lopez, James A. Robson

Mercer Law Review

In United States v. Gonzalez-Lopez, the United States Supreme Court held that the erroneous disqualification of a criminal defendant's retained choice of counsel violates the Sixth Amendment to the United States Constitution and must result in the automatic reversal of the defendant's conviction. In reaching this conclusion, the Court rejected the Government's argument that a defendant who is denied his choice of counsel must prove prejudice by showing the defendant's substitute counsel was ineffective within the meaning of Strickland v. Washington. Instead, the Court concluded that because a complete violation of the Sixth Amendment's Counsel Clause occurs when …

Hey Officer, Didn't Someone Teach You To Knock? The Supreme Court Says No Exclusion Of Evidence For Knock-And- Announce Violations In Hudson V. Michigan, David Carn

Mercer Law Review

In Hudson v. Michigan, the United States Supreme Court held in a 5-4 decision that evidence discovered by police after a knock-and-announce violation will not necessarily be excluded in court. The majority opinion, written by Justice Scalia, stated that exclusion is only appropriate where the interests protected by the knock-and-announce requirement are implicated and that hiding evidence from the government is not one of those interests. The Court further held that the substantial social costs of excluding evidence discovered upon knock-and-announce violations outweigh the deterrent effects of the exclusionary rule against police misconduct and, therefore, the application of the …

Death Penalty Law, Therese M. Day

Mercer Law Review

This Article provides a survey of death penalty case law in Georgia from June 1, 2005 through May 31, 2006. The cases include those that the Georgia Supreme Court heard on interim appeal, direct appeal, and on review of habeas corpus decisions. Two recent decisions of the United States Supreme Court are also included because of their relevance to Georgia death penalty law. While there have been recent significant statutory changes affecting capital litigation in Georgia, those changes are beyond the purview of this Article and therefore will not be discussed. Likewise, holdings in capital cases that are common to …

Death Penalty Law, Holly Geerdes, Nikki Cox

Mercer Law Review

This Article surveys fifteen death penalty decisions of the United States Supreme Court from June 1, 2004 through June 20, 2005. It was written as a companion to Death Penalty Law, a survey of death penalty decisions of the Georgia Supreme Court from June 1, 2004 through May 31, 2005. Focusing on the Court's decisions that affect the trial and appeal of death penalty cases, this Article, with some exceptions, does not concern holdings in capital cases that are common to other criminal appeals.

Death Penalty Law, Holly Geerdes, Nikki Cox

Mercer Law Review

This Article surveys the death penalty decisions of the Georgia Supreme Court from June 1, 2004 through May 31, 2005. The cases discussed include those heard by the supreme court on interim appeal, on direct appeal, and on review of habeas corpus decisions. Focusing on the court's decisions that affect the trial and appeal of death penalty cases, this Article, with some exceptions, does not discuss holdings in capital cases that are common to all criminal appeals.