Criminal Procedure Commons^™

Forecasting Life And Death: Juror Race, Religion, And Attitude Toward The Death Penalty, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells

Cornell Law Faculty Publications

Determining whether race, sex, or other juror characteristics influence how capital case jurors vote is difficult. Jurors tend to vote for death in more egregious cases and for life in less egregious cases no matter what their own characteristics. And a juror's personal characteristics may get lost in the process of deliberation because the final verdict reflects the jury's will, not the individual juror's. Controlling for the facts likely to influence a juror's verdict helps to isolate the influence of a juror's personal characteristics. Examining each juror's first sentencing vote reveals her own judgment before the majority works its will. …

"Whodunit" Versus "What Was Done": When To Admit Character Evidence In Criminal Cases, Sherry F. Colb

Cornell Law Faculty Publications

In virtually every jurisdiction in the United States, the law of evidence prohibits parties from offering proof of an individual's general character traits to suggest that, on a specific occasion, the individual behaved in a manner consistent with those traits. In a criminal trial in particular, the law prohibits a prosecutor's introduction of evidence about the defendant's character as proof of his guilt. In this Article, Professor Colb proposes that the exclusion of defendant character evidence is appropriate in one category of cases but inappropriate in another. In the first category, which Professor Colb calls "whodunit" cases, the parties agree …

Quiet Rebellion? Explaining Nearly A Decade Of Declining Federal Drug Sentences, Frank O. Bowman Iii, Michael Heise

Cornell Law Faculty Publications

This is the first of two articles, the second of which will appear in January 2002 edition of the Iowa Law Review, in which we seek an explanation for the little-noticed and hitherto unexamined fact that the average length of prison sentences imposed in federal court for narcotics violations has been declining steadily since 1991-92.

According to figures maintained by the Administrative Office of the United States Courts, in the eight years between 1991 and 1999, the average federal drug sentence decreased from 95.7 months to 75.2 months, a drop of 22%, or nearly two years, per defendant. United States …

Case Note: The Office Of The Independent Counsel And Grand Jury Secrecy, Melissa N. Henke

Law Faculty Scholarly Articles

In In re Sealed Case No. 99-3091, the D.C. Circuit ruled on a motion for summary reversal of an order entered by the U.S. District Court for the District of Columbia ("District Court"), where such order required the Office of Independent Counsel Kenneth Starr ("OIC") to provide evidence as to why the OIC should not be held in contempt for violating the grand jury secrecy rule, Rule 6(e). The alleged violation of grand jury secrecy concerned a New York Times article that contained information about the grand jury investigation of President William J. Clinton, and which named the OIC as …

Constitutional Risks To Equal Protection In The Criminal Justice System, Edward K. Cheng

Vanderbilt Law School Faculty Publications

This Note has examined the consequences of a shift in the equal protection context - a move from a traditional particularized harm perspective to a constitutional risk perspective focused on systemic harms. It has also acknowledged the significant remedial difficulties associated with constitutional risk, but by focusing on discretion as the source of most equal protection risks, this Note has proposed a moderate doctrinal change: discretionary safeguards. To be sure, this Note leaves the project substantially incomplete. Constitutional risk's focus on statistical evidence requires careful discussion of the pitfalls judges face in this area and of how they can develop …

Setting The Record Straight: A Proposal For Handling Prosecutorial Appeals To Racial, Ethnic Or Gender Prejudice During Trial, Andrea Lyon

Law Faculty Publications

No abstract provided.

Quiet Rebellion? Explaining Nearly A Decade Of Declining Federal Drug Sentences With Michael Heise, Frank O. Bowman Iii, Michael Heise

Faculty Publications

The Article begins with an examination of three primarily empirical questions. First, is the trend real? In other words, is the apparent decrease in federal drug sentences merely a species of statistical hiccup, a random fluctuation that could move easily and rapidly in the other direction? Or is the decline in average drug sentences large enough, and the trend prolonged enough, that we can safely conclude that something meaningful is occurring?

Make Way For The Aba: Smith V. Robbins Clears A Path For Anders Alternatives, James E. Duggan, Andrew W. Moeller

The Journal of Appellate Practice and Process

Indigents appealing criminal convictions are entitled to court-appointed counsel. The American Bar Association suggests a standard for providing the required representation. This standard is known as the Idaho Rule.

No-Merit Briefs Undermine The Adversary Process In Criminal Appeals, Randall L. Hodgkinson

The Journal of Appellate Practice and Process

Appellate defense attorneys face a dilemma when faced with an appeal that has no obvious merit. No-merit briefs allow an attorney to forego an appeal when there is no apparent merit. In cases involving direct appeals from conviction, the cost of abandonment of the client far outweighs the benefits.

When Reasonable Jurists Could Disagree: The Fifth Circuit's Misapplication Of The Frivolousness Standard, Brent E. Newton

The Journal of Appellate Practice and Process

A criminal appeal that is deemed frivolous is summarily dismissed without further judicial consideration. The frequency of findings of frivolousness in the Fifth Circuit has caused concern among appellate practitioners and has even led to sanctions against practitioners. This article analyzes the Fifth Circuit’s frivolousness standard.

Criminal Law—Statutes Of Limitation On Sexual Assault Crimes: Has The Availability Of Dna Evidence Rendered Them Obsolete, Amy Dunn

University of Arkansas at Little Rock Law Review

No abstract provided.

Chinese Population Transfer In Tibet, John S. Hall

Cardozo Journal of International and Comparative Law

The note examines the impact of China's population transfer policies in Tibet since the 1950 invasion, arguing that these policies have led to the marginalization of Tibetans, significant environmental degradation, and human rights abuses. It explores various legal and diplomatic strategies to address these issues, including the Dalai Lama's Five Point Plan, human rights law, environmental law, and international negotiations.

Aboriginal Peoples And Mandatory Sentencing, Larry N. Chartrand

Osgoode Hall Law Journal

The author examines the impact of mandatory minimum sentencing on Aboriginal peoples in Canada. Emphasis is placed on the recently enacted mandatory minimum sentencing provisions for firearms offenses. The author argues that the enactment of such provisions are inconsistent with Parliament's objectives as reflected in section 718.2(e) of the Criminal Code which requires sentencing judges to pay "particular attention to the circumstances of Aboriginal offenders." In addition, the author explores preliminary arguments to support a finding that mandatory minimum sentences applied to Aboriginal offenders violate sections 12 and 15 of the Charter.

Distorting The Prosecution Process: Informers, Mandatory Minimum Sentences, And Wrongful Convictions, Dianne L. Martin

Osgoode Hall Law Journal

As the use of mandatory minimum sentences becomes more common in Canada, it is important to consider a range of potential consequences that are neither intended nor anticipated. This article considers the implications of mandatory minimum sentences in contributing to wrongful convictions. It considers the impact of these sentences on two significant processes in the criminal justice system, plea bargaining and the development of informers, and argues that both processes are vulnerable to distortions. These distortions, which include the wrongful conviction of innocent people, can be exacerbated by the threat of mandatory minimum prison sentences. In the case of plea …

The Death Penalty, Mandatory Prison Sentences, And The Eighth Amendment's Rule Against Cruel And Unusual Punishments, Jamie Cameron

Osgoode Hall Law Journal

The text of section 12 of the Canadian Charter of Rights and Freedoms and the Eighth Amendment to the United States Constitution prohibit cruel and unusual punishment in language that is similar but not identical. Still, in considering constitutional restrictions on punishment, the deviations of the Supreme Court both focus on the concept of gross disproportionality between the offence committed and the state’s response. Despite the appearance of similarity, this article maintains that differences in the American law of sentencing explain why Canada ought not follow or adopt the United States approach to minimum sentences.

Latimer: Something Ominous Is Happening In The World Of Disabled People, H. Archibald Kaiser

Osgoode Hall Law Journal

Although the Latimer decision breaks no new substantive ground, it has created a furore over the application of the mandatory minimum sentence for murder. This article maintains that, despite the pre-existing need to examine the complex range of issues in mandatory sentences, the Latimer case provides a wholly inapposite base for revisiting this sanction. The Supreme Court of Canada properly rejected the accused's attempt to invoke the defence of necessity, as well as some procedural contentions. The Court also determined that the mandatory minimum sentence for murder was not cruel and unusual punishment as applied to the accused. The reaction …

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

All Faculty Scholarship

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 …

Determining Reasonableness Under The Fourth Amendment: Physical Force To Control And Punish Students, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

Mandatory Minimum Prison Sentencing And Systemic Racism, Faizal R. Mirza

Osgoode Hall Law Journal

This article discusses the relationship between racist policing, the exercise of prosecutorial discretion, and the disproportionate imposition of mandatory prison sentences on Black-Canadians It argues that the retention and expansion of mandatory prison sentences for serious offences will serve as a powerful means to perpetuate systemic racism in the criminal justice system. Reporting and applying surveys on systemic racism in the criminal justice system, the article sets out to demonstrate that mandatory prison sentences enhance the quasi-judicial role of prosecutors, providing Crown attorneys with greater leverage to convict a disproportionate number of Black persons. In addition, it argues that if …

Mandatory Minimum Sentences And Women With Disabilities, Fiona Sampson

Osgoode Hall Law Journal

This article examines the issue of mandatory minimum sentencing from the unique perspective of women with disabilities. Concerns about the discriminatory application of mandatory minimum sentences are outlined and analyzed from a gendered disability perspective, as are concerns about the devaluation of the lives of persons with disabilities through the support of reduced sentences for those convicted of murdering persons with disabilities. This examination makes it clear that the different concerns of women with disabilities are difficult to reconcile, as they mandate contradictory positions with respect to the possible abolition of the sentencing practice. The challenges inherent in the development …

The Political Attractiveness Of Mandatory Minimum Sentences, Anthony N. Doob, Carla Cesaroni

Osgoode Hall Law Journal

This article addresses the question of why Canada still has mandatory minimum sentences despite inquiries by a number of commissions that suggest abolition. It suggests that politicians and judges alike not only promote mandatory minimum policies, but also speak about them in much the same way - as a way of fighting crime. Though the evidence is clear that mandatory minimum sentences are not an effective crime-control strategy, and actually disrupt the sensible operation of the justice system, it is apparent that the deterrence message they deliver is still functional for politicians and is rarely challenged by judges.

Mandatory Minimum Sentences Of Imprisonment: Exploring The Consequences For The Sentencing Process, Julian V. Roberts

Osgoode Hall Law Journal

In this article, the author discusses the nature and consequences of the mandatory sentences of imprisonment created by Bill C-63 in 1995. These mandatory sentences constitute the most comprehensive collection of mandatory minima in Canadian history, and will affect significant numbers of offenders. Unlike most mandatory minima created in other jurisdictions such as Australia, England, and Wales, the legislation that created the firearms offence minima offer no provision to be invoked in exceptional cases. In this article, the author addresses the effect that these new statutory minima am likely to have on sentencing patterns It is argued that they should …

Disarming Canadians, And Arming Them With Tolerance: Banning Firearms And Minimum Sentences To Control Violent Crime--An Essay On An Apparent Contradiction, Helene Dumont

Osgoode Hall Law Journal

In an article published in French in 1997, the author offered reflections on feminism and criminal law that would allow for a better control of violent crime, without Parliament having to resort to excessively severe sentences. In this respect, she argued that there was no contradiction in supporting the radical ban of firearms in Canada, while opposing a minimum sentence of four years under the Firearms Act, which currently affects approximately ten serious Criminal Code offences. After setting out her position in favour of the "disarmament" of Canadians, the author argued that minimum sentences of four years were unconstitutional. Such …

Searching For Smith: The Constitutionality Of Mandatory Sentences, Kent Roach

Osgoode Hall Law Journal

The jurisprudence of the Supreme Court of Canada on the constitutionality of mandatory minimum sentences, from R. v. Smith to R. v. Latimer, is reviewed and assessed in light of relevant developments in constitutional law and sentencing. These include the Supreme Courts increasing interest in constitutional minimalism and corresponding reluctance to rely on hypothetical offenders and facial declarations of invalidity. The manner in which the Court's increasing concern for crime victims and fault levels has been used to justify upholding mandatory sentences is examined. The author also relates this jurisprudence to trends in sentencing, including an increasing acceptance of mandatory …

Sentencing In The States: The Good, The Bad, And The Ugly, Julie Stewart

Osgoode Hall Law Journal

Mandatory sentencing laws are responsible for the booming prison population in the United States. They are applied most frequently to crimes involving drugs and mandate harsh penalties of five, ten, twenty years or more behind bars for crimes involving no violence. Julie Stewart, President of the Families Against Mandatory Minimums Foundation (FAMM) and the sister of a marijuana user who spent five years in a federal prison, describes the unfairness of America’s sentencing policies, with a particular emphasis on the application of mandatory minimum sentences to drug-related convictions. These laws have led to a marked increase in the number of …

Battered Women And Mandatory Minimum Sentences, Elizabeth Sheehy

Osgoode Hall Law Journal

The author argues for the repeal of mandatory minimum sentences based upon their role in the distortion of defences available to battered women on trial for the homicide of their violent mates. After reviewing other legal strategies aimed at eliminating the discriminatory biases facing women who attempt to plead self-defence, and illustrating the ways in which defences to murder are distorted, she turns to the examination of the transcript of a recent murder trial for a woman who argued self-defence. The author uses the transcript to provide concrete illustrations of three ways in which self-defence is distorted by the mandatory …

Evaluation Of The Ontario Mediation Program (Rule 24.1) Final Report: The First 23 Months, Robert G. Hann, Carl Baar, Lee Axon, Susan Binnie, Frederick H Zemans

Books

No abstract provided.

No One Can Serve Two Masters: Arguments Against Private Prosecutors, Matthew S. Nichols

Capital Defense Journal

No abstract provided.

Establishing A Capital Defense Unit In Virginia: A Proposal To Increase The Quality Of Representation For Indigent Capital Defendants, Jeremy P. White

Capital Defense Journal

No abstract provided.

H.B. 2580 (Va. 2001)

Capital Defense Journal

No abstract provided.