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Articles 31 - 60 of 160
Full-Text Articles in Criminal Procedure
The Immortal Accusation, Lindsey Webb
The Immortal Accusation, Lindsey Webb
Washington Law Review
In the American criminal justice system, accusations have eternal life. Prosecutors, judges, and prison officials regularly consider dismissed charges and even prior acquittals in the defendant’s criminal history when making decisions ranging from the filing of charges to the imposition of punishment. This Article argues that the criminal justice system’s reliance on “accusation evidence” should be understood as furthering that system’s larger allegiance to attaining and preserving findings of guilt. Once the government obtains a guilty plea or verdict, appellate courts rarely overturn convictions based on concerns about the accuracy of the conviction; indeed, post-conviction review procedures often are structured …
State V. Crumpton: How The Washington State Supreme Court Improved Access To Justice In Post-Conviction Dna Testing, Jordan Mccrite
State V. Crumpton: How The Washington State Supreme Court Improved Access To Justice In Post-Conviction Dna Testing, Jordan Mccrite
Washington Law Review
Post-conviction DNA testing is a valuable tool for ensuring innocent people are not wrongfully incarcerated. Society has strong interests in confirming that available, yet previously untested, DNA evidence matches the person convicted. Access to post-conviction DNA testing, however, has been limited to maintain finality and avoid an over-burdened court system. This Note examines post-conviction DNA testing in Washington State, particularly after the 2014 Washington State Supreme Court decision, State v. Crumpton. In Crumpton, a majority of the Court—over a strongly worded dissent—read a favorable presumption into Washington’s post-conviction DNA testing statute. The favorable presumption requires courts to presume …
A Tale Of Three Prejudices: Restructuring The "Martinez Gateway", Michael Ellis
A Tale Of Three Prejudices: Restructuring The "Martinez Gateway", Michael Ellis
Washington Law Review
Martinez v. Ryan opened a door previously closed to federal habeas petitioners. In the past, where attorney negligence or a pro se defendant’s lack of legal knowledge caused ineffective-assistance-of-trial-counsel claims to be procedurally defaulted, those claims were likely lost forever. Now, following Martinez, petitioners get a second chance should they satisfy the Supreme Court’s four-pronged test. The Martinez test, however, is not a simple one. This Comment addresses some problems concerning the four-pronged test, including multiple and conflicting standards for the same element, tensions between Martinez and the underlying Strickland v. Washington ineffective-assistance-of-counsel standard, and confusion where the same …
Experimental Execution, Seema K. Shah
Experimental Execution, Seema K. Shah
Washington Law Review
On July 23, 2014, an execution in Arizona lasted nearly two hours, with the inmate struggling to breathe and gasping over 600 times, according to a local reporter witnessing the execution. This was the third example of a botched execution in seven months. The Supreme Court last evaluated the constitutionality of execution by lethal injection in 2008, but did not provide a clear standard for evaluating risks. Since that time, the lethal injection landscape has transformed. States are using entirely new drugs and drug combinations, and sometimes obtain these drugs from questionable sources, making it hard to predict what will …
Miller'S Promise: Re-Evaluating Extreme Criminal Sentences For Children, Nick Straley
Miller'S Promise: Re-Evaluating Extreme Criminal Sentences For Children, Nick Straley
Washington Law Review
Scientific, legal, and societal notions about youth have come together to reaffirm an age-old concept—children are different and they change as they grow older. In recent decisions, the United States Supreme Court has required courts and legislatures to take a new look at extreme criminal sentences imposed upon children. Life without parole sentences and decades-long, determinate sentences are constitutionally suspect when applied to children because they fail to adequately account for the dynamism of youth. Miller v. Alabama and Graham v. Florida announced two important principles: (1) that an extreme sentence can only be imposed upon a child following an …
The Not So Speedy Trial Act, Shon Hopwood
The Not So Speedy Trial Act, Shon Hopwood
Washington Law Review
The Speedy Trial Act (STA) of 1974 occupies a peculiar place in the criminal justice system. Very few pieces of legislation can lay claim to protecting both the rights of criminal defendants and the public’s significant interest in timely justice, while reducing the cost of judicial administration. The STA formerly accomplished these lofty aims by reducing pretrial delays. But for the past two decades legal scholars have ignored the STA, and both prosecutors and defense attorneys have subverted the STA’s goals by routinely moving for continuances. And although the Act categorically applies in every federal criminal case, it has been …
Not-So-Harmless Error: A Higher Standard For Mitigation Errors On Capital Habeas Review, Ryan C. Thomas
Not-So-Harmless Error: A Higher Standard For Mitigation Errors On Capital Habeas Review, Ryan C. Thomas
Washington Law Review
This Comment looks at how federal courts handle mitigation errors during the penalty phase of capital punishment cases on habeas corpus review; it argues that the United States Supreme Court should expressly adopt the Chapman “harmless beyond a reasonable doubt” standard rather than the Brecht “substantial and injurious effect” standard. The heightened stakes of capital sentencing dictate that a higher standard of review should apply. The Court has yet to rule on this matter, and the United States Courts of Appeals cannot agree upon which standard to apply. Currently, a lopsided circuit split exists regarding whether harmless error review applies …
Not-So-Harmless Error: A Higher Standard For Mitigation Errors On Capital Habeas Review, Ryan C. Thomas
Not-So-Harmless Error: A Higher Standard For Mitigation Errors On Capital Habeas Review, Ryan C. Thomas
Washington Law Review
This Comment looks at how federal courts handle mitigation errors during the penalty phase of capital punishment cases on habeas corpus review; it argues that the United States Supreme Court should expressly adopt the Chapman “harmless beyond a reasonable doubt” standard rather than the Brecht “substantial and injurious effect” standard. The heightened stakes of capital sentencing dictate that a higher standard of review should apply. The Court has yet to rule on this matter, and the United States Courts of Appeals cannot agree upon which standard to apply. Currently, a lopsided circuit split exists regarding whether harmless error review applies …
The Undersigned Attorney Hereby Certifies: Ensuring Reasonable Caseloads For Washington Defenders And Clients, Andrea Woods
The Undersigned Attorney Hereby Certifies: Ensuring Reasonable Caseloads For Washington Defenders And Clients, Andrea Woods
Washington Law Review
The Standards governing Washington’s public defenders represent a significant reform aimed at protecting an important constitutional right for our state’s vulnerable citizens. This Comment provides the necessary introduction to the Standards and addresses skepticism on the part of current practitioners and elected officials. Cooperation among defense attorneys, local governments, and the courts could ensure the Standards’ success and—in turn—a better system of public defense for attorneys and defendants alike. Part I of this Comment introduces the reader to the new Standards. Part II offers an overview of common critiques of the Washington State Supreme Court Standards that were voiced by …
A Rejoinder To Professor Schauer's Commentary, Yale Kamisar
A Rejoinder To Professor Schauer's Commentary, Yale Kamisar
Washington Law Review
It is quite a treat to have Professor Frederick Schauer comment on my Miranda article. 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 decades and that he, too, was unhappy with the pre-Miranda due process/“totality of circumstances”/“voluntariness” test. I also like what Schauer had to say about “prophylactic rules,” a term that has sometimes been used to disparage the Miranda rules. As Schauer …
The Miranda Warning, Frederick Schauer
The Miranda Warning, Frederick Schauer
Washington Law Review
Largely as a consequence of American television and movies, Miranda v. Arizona may well be the most famous appellate case in the world. On the screen, innumerable actors playing American police officers give Miranda warnings to other actors playing suspects, a portrayal that reflects the reality of genuine police officers giving genuine Miranda warnings to genuine suspects millions of times every year. Indeed, such has been the influence of Miranda that Russian television cops give something like a Miranda warning to suspects even though no actual Russian law imposes such an obligation on real Russian cops. And it is said …
The Rise, Decline, And Fall (?) Of Miranda, Yale Kamisar
The Rise, Decline, And Fall (?) Of Miranda, Yale Kamisar
Washington Law Review
No abstract provided.
An Open Courts Checklist: Clarifying Washington's Public Trial And Public Access Jurisprudence, Jeanine Blackett Lutzenhiser
An Open Courts Checklist: Clarifying Washington's Public Trial And Public Access Jurisprudence, Jeanine Blackett Lutzenhiser
Washington Law Review
Fundamental to the American system of justice is the right to a public trial and a general presumption of openness in judicial proceedings. These values are reflected in the First and Sixth Amendments of the United States Constitution and in many state constitutions. Washington is one of a number of states whose constitution (unlike the U.S. Constitution) also explicitly guarantees the open administration of justice. Constitutional dilemmas arise when a party requests the closure of a courtroom or the sealing of documents. These requests force courts to harmonize values of open justice with other compelling interests. U.S. Supreme Court decisions …
Protecting Child Victims' Rights As Vigorously As Criminal Defendants' When Prosecuting Possession Or Distribution Of Child Pornography, Kiel Willmore
Protecting Child Victims' Rights As Vigorously As Criminal Defendants' When Prosecuting Possession Or Distribution Of Child Pornography, Kiel Willmore
Washington Law Review
Among the devastating effects of the worldwide child pornography epidemic is a concerning legal dilemma. Until recently, courts have frequently held that a defendant charged with child pornography offenses has a nearly unrestricted right to receive and view copies of the pornographic evidence as part of discovery of the state’s evidence. The duplication, dissemination, and viewing of child pornography is not only a violation of federal law, but is also a further violation of the child victims’ privacy and renewal of their abuse. The Washington State Legislature recently enacted Substitute House Bill 2177 (“H.B. 2177”), which amends the legislative findings …
Aedpa's Ratchet: Invoking The Miranda Right To Counsel After The Antiterrorism And Effective Death Penalty Act, David Rubenstein
Aedpa's Ratchet: Invoking The Miranda Right To Counsel After The Antiterrorism And Effective Death Penalty Act, David Rubenstein
Washington Law Review
In Davis v. United States, the United States Supreme Court established a high standard to invoke the Miranda right to counsel, holding that a suspect must make a clear and unequivocal request for an attorney. Two years later, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which created a highly deferential standard of review for state court judgments challenged under federal habeas corpus jurisdiction. Generally, a state prisoner challenging the alleged deprivation of his Miranda right to counsel may obtain federal court relief under AEDPA only if his conviction in state court was based on an “objectively …
The Terrorist Informant, Wadie E. Said
The Terrorist Informant, Wadie E. Said
Washington Law Review
A man sets himself on fire in front of the White House in a dispute with the Federal Bureau of Investigation (FBI). He has been working as an informant for the FBI in a high-profile terrorism prosecution and is unhappy with the $100,000 he has been paid so far. He has also been recently convicted of bank fraud. As a result, the government declines to call him as a witness, given the damage his actions have on his credibility and trustworthiness. This incident underscores the difficulty inherent in relying on paid informants to drive a prosecution, where material considerations such …
State V. Grier And The Erroneous Adoption Of The "Punishment-Based" Standard Of Review For Ineffective Assistance Of Counsel Claims Based On All-Or-Nothing Strategies, Jacque St. Romain
State V. Grier And The Erroneous Adoption Of The "Punishment-Based" Standard Of Review For Ineffective Assistance Of Counsel Claims Based On All-Or-Nothing Strategies, Jacque St. Romain
Washington Law Review
In June 2009, the Washington State Court of Appeals, Division II, reversed Kristina Grier’s second-degree murder conviction in State v. Grier. The court concluded that Grier had received ineffective assistance of counsel because her attorney failed to request jury instructions for any lesser-included offenses, choosing instead to pursue an all-or-nothing defense strategy. That same month, Division I issued a contrary opinion, finding the pursuit of an all-or-nothing strategy reasonable. The Washington State Supreme Court has granted certiorari and will soon hear oral arguments in Grier. This Comment reviews federal and state courts’ approaches to questions of ineffective assistance of …
State V. Grier And The Erroneous Adoption Of The "Punishment-Based" Standard Of Review For Ineffective Assistance Of Counsel Claims Based On All-Or-Nothing Strategies, Jacque St. Romain
State V. Grier And The Erroneous Adoption Of The "Punishment-Based" Standard Of Review For Ineffective Assistance Of Counsel Claims Based On All-Or-Nothing Strategies, Jacque St. Romain
Washington Law Review
In June 2009, the Washington State Court of Appeals, Division II, reversed Kristina Grier’s second-degree murder conviction in State v. Grier. The court concluded that Grier had received ineffective assistance of counsel because her attorney failed to request jury instructions for any lesser-included offenses, choosing instead to pursue an all-or-nothing defense strategy. That same month, Division I issued a contrary opinion, finding the pursuit of an all-or-nothing strategy reasonable. The Washington State Supreme Court has granted certiorari and will soon hear oral arguments in Grier. This Comment reviews federal and state courts’ approaches to questions of ineffective assistance of …
The Racial Geography Of The Federal Death Penalty, G. Ben Cohen, Robert J. Smith
The Racial Geography Of The Federal Death Penalty, G. Ben Cohen, Robert J. Smith
Washington Law Review
Scholars have devoted substantial attention to both the overrepresentation of black defendants on federal death row and the disproportionate number of federal defendants charged capitally for the murder of white victims. This attention has not explained (much less resolved) these disquieting racial disparities. Little research has addressed the unusual geography of the federal death penalty, in which a small number of jurisdictions are responsible for the vast majority of federal death sentences. By addressing the unique geography, we identify a possible explanation for the racial distortions in the federal death penalty: that federal death sentences are sought disproportionately where the …
State V. Grier And The Erroneous Adoption Of The "Punishment-Based" Standard Of Review For Ineffective Assistance Of Counsel Claims Based On All-Or-Nothing Strategies, Jacque St. Romain
State V. Grier And The Erroneous Adoption Of The "Punishment-Based" Standard Of Review For Ineffective Assistance Of Counsel Claims Based On All-Or-Nothing Strategies, Jacque St. Romain
Washington Law Review
In June 2009, the Washington State Court of Appeals, Division II, reversed Kristina Grier’s second-degree murder conviction in State v. Grier. The court concluded that Grier had received ineffective assistance of counsel because her attorney failed to request jury instructions for any lesser-included offenses, choosing instead to pursue an all-or-nothing defense strategy. That same month, Division I issued a contrary opinion, finding the pursuit of an all-or-nothing strategy reasonable. The Washington State Supreme Court has granted certiorari and will soon hear oral arguments in Grier. This Comment reviews federal and state courts’ approaches to questions of ineffective assistance of …
The Racial Geography Of The Federal Death Penalty, G. Ben Cohen, Robert J. Smith
The Racial Geography Of The Federal Death Penalty, G. Ben Cohen, Robert J. Smith
Washington Law Review
Scholars have devoted substantial attention to both the overrepresentation of black defendants on federal death row and the disproportionate number of federal defendants charged capitally for the murder of white victims. This attention has not explained (much less resolved) these disquieting racial disparities. Little research has addressed the unusual geography of the federal death penalty, in which a small number of jurisdictions are responsible for the vast majority of federal death sentences. By addressing the unique geography, we identify a possible explanation for the racial distortions in the federal death penalty: that federal death sentences are sought disproportionately where the …
The Racial Geography Of The Federal Death Penalty, G. Ben Cohen, Robert J. Smith
The Racial Geography Of The Federal Death Penalty, G. Ben Cohen, Robert J. Smith
Washington Law Review
Scholars have devoted substantial attention to both the overrepresentation of black defendants on federal death row and the disproportionate number of federal defendants charged capitally for the murder of white victims. This attention has not explained (much less resolved) these disquieting racial disparities. Little research has addressed the unusual geography of the federal death penalty, in which a small number of jurisdictions are responsible for the vast majority of federal death sentences. By addressing the unique geography, we identify a possible explanation for the racial distortions in the federal death penalty: that federal death sentences are sought disproportionately where the …
Finality, Habeas, Innocence, And The Death Penalty: Can Justice Be Done?, Ellyde Roko
Finality, Habeas, Innocence, And The Death Penalty: Can Justice Be Done?, Ellyde Roko
Washington Law Review
In 1995, Judge Betty Binns Fletcher posed a question: In the context of the death penalty, can justice be done? She did not answer the question at the time. However, an examination of the procedural hurdles now facing condemned inmates seeking review of claims of constitutional violations suggests the answer is no. Too often courts, including the Supreme Court, have favored finality over fairness, elevating strict adherence to procedural rules over the responsibility to make sure justice is done. Nowhere is the problem clearer than in the arena of actual innocence, where the failure to consider a condemned inmate’s claim …
No, You May Not Search My Car! Extending Georgia V. Randolph To Vehicle Searches, Alex Chan
No, You May Not Search My Car! Extending Georgia V. Randolph To Vehicle Searches, Alex Chan
Washington Law Review
In Georgia v. Randolph, the United States Supreme Court announced that third-party consent does not always suffice to immunize the search of a residence from Fourth Amendment attack. Specifically, the Court held that a police search of a residence conducted pursuant to the consent of one occupant, but over the express refusal of a physically present co-occupant with common authority, is unreasonable as to the nonconsenting occupant under the Fourth Amendment. The Court did not indicate whether its holding also extended to searches of personal effects, such as vehicles, conducted pursuant to third-party consent. As a general principle, the …
No, You May Not Search My Car! Extending Georgia V. Randolph To Vehicle Searches, Alex Chan
No, You May Not Search My Car! Extending Georgia V. Randolph To Vehicle Searches, Alex Chan
Washington Law Review
In Georgia v. Randolph, the United States Supreme Court announced that third-party consent does not always suffice to immunize the search of a residence from Fourth Amendment attack. Specifically, the Court held that a police search of a residence conducted pursuant to the consent of one occupant, but over the express refusal of a physically present co-occupant with common authority, is unreasonable as to the nonconsenting occupant under the Fourth Amendment. The Court did not indicate whether its holding also extended to searches of personal effects, such as vehicles, conducted pursuant to third-party consent. As a general principle, the …
Furman Fundamentals, Corinna Barrett Lain
Furman Fundamentals, Corinna Barrett Lain
Washington Law Review
For the first time in a long time, the Supreme Court's most important death penalty decisions all have gone the defendant's way. Is the Court's newfound willingness to protect capital defendants just a reflection of the times, or could it have come even without public support for those protections? At first glance, history allows for optimism. Furman v. Georgia, the 1972 landmark decision that invalidated the death penalty, provides a seemingly perfect example of the Court's ability and inclination to protect capital defendants when no one else will. Furman looks countermajoritarian, scholars have claimed it was countermajoritarian, and even …
Furman Fundamentals, Corinna Barrett Lain
Furman Fundamentals, Corinna Barrett Lain
Washington Law Review
For the first time in a long time, the Supreme Court's most important death penalty decisions all have gone the defendant's way. Is the Court's newfound willingness to protect capital defendants just a reflection of the times, or could it have come even without public support for those protections? At first glance, history allows for optimism. Furman v. Georgia, the 1972 landmark decision that invalidated the death penalty, provides a seemingly perfect example of the Court's ability and inclination to protect capital defendants when no one else will. Furman looks countermajoritarian, scholars have claimed it was countermajoritarian, and even …
An Unwarranted Intrusion: The Constitutional Infirmities Of Washington's Dna Collection Law, Erin Curtis
An Unwarranted Intrusion: The Constitutional Infirmities Of Washington's Dna Collection Law, Erin Curtis
Washington Law Review
Washington State law requires all convicted felons to submit a biological sample for purposes of DNA testing. Washington State courts have upheld this law as a permissible search under the Fourth Amendment to the United States Constitution. Article I, section 7 of the Washington State Constitution, however, provides broader protections against governmental intrusion than does its federal counterpart. Under the state constitutional provision, law enforcement officials may disturb a citizen's private affairs only if authority of law supports the disturbance. A statute alone cannot provide the requisite authority; rather, the search prescribed must either be pursuant to a warrant or …
Crossing Eight Mile: Juries Of The Vicinage And County-Line Criminal Buffer Statutes, Brian C. Kalt
Crossing Eight Mile: Juries Of The Vicinage And County-Line Criminal Buffer Statutes, Brian C. Kalt
Washington Law Review
Several state statutes allow the state to choose the county in which to prosecute a person who allegedly committed a crime near a county line. Because these buffer statutes apply even in cases where the location of the crime is not in doubt, they are inappropriate on two levels. First, they are needless as a matter of policy; other statutes solve all of the problems that buffers purport to address, but without the detrimental effects. Second, they conflict with the principle—traditional in some states but constitutionally required in others—of trial by a jury of the vicinage, i.e., from the neighborhood …
Capital Punishment, Proportionality Review, And Claims Of Fairness (With Lessons From Washington State), Timothy V. Kaufman-Osborn
Capital Punishment, Proportionality Review, And Claims Of Fairness (With Lessons From Washington State), Timothy V. Kaufman-Osborn
Washington Law Review
This Article explores the adequacy of one of the safeguards adopted by many states to ensure that the death penalty is applied fairly, following the reinstatement of capital punishment in 1976. Relying chiefly on evidence drawn from Washington State, this Article asks whether the practice of comparative proportionality review has ensured that there is now a rational basis for distinguishing between those who are sentenced to die and those who are not. An analysis of the trial judge reports employed by the Washington State Supreme Court in reviewing death sentences, as well as the method used by the court in …