Criminal Procedure Commons^™

Summary Of Buchanan V. State, Akke Levin

Nevada Supreme Court Summaries

Appeal from a judgment by the Second Judicial District Court of Washoe County, convicting Denise Dianna Buchanan of two counts of first-degree murder.

Is It Ever Too Late For Innocence? Finality, Efficiency, And Claims Of Innocence, George C. Thomas, Gordon G. Young, Keith Sharfman, Kate B. Briscoe

Faculty Scholarship

No abstract provided.

The New Frontier Of Constitutional Confession Law - The International Arena: Exploring The Admissibility Of Confessions Taken By U.S. Investigators From Non-Americans Abroad, Mark A. Godsey

Faculty Articles and Other Publications

This Article is part two in an ongoing series. Part I, published at 51 DUKE L. J. 1703 (2002), argued that Miranda warnings should not be strictly required when U.S. agents interrogate non-U.S. citizens abroad. This Article picks up where the first left off, and asks the question: "In the absence of Miranda, do any provisions in the Bill of Rights restrict the ability of U.S. agents to obtain confessions from non-Americans abroad?"

The Article begins by examining the back up or default rules to Miranda in the domestic setting. These rules are the "due process involuntary confession rule," which …

Blending Criminal Procedure At The Ad Hoc Tribunals, William A. Schabas

Michigan Journal of International Law

Review of International Criminal Evidence by Richard May & Marieke Wierda

Supervision Styles In Probation And Parole: An Analysis Of Activities, Richard P. Seiter, Angela D. Crews

Criminal Justice Faculty Research

Supervision of offenders in the community remains a critical component of the correctional processes in the United States. With almost six million offenders under correctional supervision in the community, there has been relatively little attention and few resources devoted to the style and quality of supervision received by these offenders. As a result of the lack of research regarding the style of probation and parole supervision, there is a need to identify and quantify styles of casework and surveillance supervision. This article describes a research project that identifies the key functions of parole and probation officers, reports self- and peer-rating …

Toward A Criminology Of International Crime, Mark A. Drumbl

Scholarly Articles

The criminal adjudication of those who perpetrate egregious human rights violations has gained normative currency among international lawyers and rights activists. This norm has encouraged the construction of a variety of international legal institutions, specifically tribunals and courts. This Article tracks the logic of this norm and suggests that, at its root, it represents a general extension of Western municipal criminal law, and Anglo-American common law methodologies in particular, to the international context and cases of mass violence. This triggers two interrelated concerns: is this extension (1) theoretically sustainable and (2) operationally effective for adjudicating wrongdoing in all cases of …

Misuse Of Scientific Evidence By Prosecutors, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The prosecutor's misuse of scientific evidence to charge and convict has not been sufficiently examined. Courts and commentators critiquing abuses of scientific evidence in criminal cases rarely focus on the prosecutor's role in the process. Issues typically discussed are the questionable nature of the evidence, the controversial manner in which the evidence was acquired and tested, whether the expert arrived at her conclusions in a scientifically reliable manner, and whether the expert's courtroom testimony was false or misleading. The prosecutor's control over and manipulation of the scientific evidence to shape the fact-finder's evaluation of the facts and to persuade the …

In The Wake Of Kyllo V. United States: The Future Of Thermal Imaging Cameras, 36 J. Marshall L. Rev. 507 (2003), Paul Kleppetsch

UIC Law Review

No abstract provided.

Mandamus As A Weapon Of "Class Warfare" In Sixth Amendment Jurisprudence: A Case Comment On United States V. Santos, 36 J. Marshall L. Rev. 733 (2003), John F. Costello Jr.

UIC Law Review

No abstract provided.

Death By Any Other Name: The Federal Government's Inconsistent Treatment Of Drugs Used In Lethal Injections And Physician-Assisted Suicide, Colin Miller

Journal of Law and Health

While the FDA is under no legal obligation to regulate the drugs used in executions, these recent developments certainly create a moral imperative requiring review. This paper will argue that the federal government cannot consistently refrain from regulating lethal injection drugs while arguing for prosecution of those prescribing drugs to be used by patients in assisted suicide. Part II will look at the opinions in Chaney and the factors behind the FDA's decision not to regulate the drugs used in executions. Part III will look at Oregon's Death with Dignity Act and its authorization by the Supreme Court. Parts IV-VI …

Every Breath You Take, Every Move You Make, I'Ll Be Watching You: The Use Of Face Recognition Technology, Bridget Mallon

Villanova Law Review (1956 - )

No abstract provided.

The Death Penalty And Adversarial Justice In The United States, Samuel R. Gross

Book Chapters

In a volume devoted to comparing adversarial and inquisitorial procedures in Western countries, the subject of the death penalty is an anomaly. Any system of adjudication must address several basic tasks: how to obtain information from parties and witnesses, how to evaluate that information, how to utilize expert knowledge, how to act in the face of uncertainty, how to review and reconsider decisions. By comparing how competing systems deal with these tasks we can hope to learn something about the strengths and weaknesses of alternative approaches to common problems. The death penalty, however, is not an essential function of a …

Stubbornness Of Pretexts, Daniel B. Yeager

Faculty Scholarship

This Article will reflect on (1) how the Whren v. United States failure to acknowledge what counts as a pretext accounts for the residual confusion as to whether or not Whren really has killed off the pretext argument in constitutional criminal procedure, and (2) the extent to which the Court in Sullivan compounded that failure, which I hope to lightly correct here by distinguishing motives from intentions and then by elaborating the role that each plays, or at least should play, in Fourth Amendment jurisprudence.

Improving The Kangaroo Courts: A Proposal For Reform In Evaluating Juveniles' Waiver Of Miranda, Kimberly Larson

Villanova Law Review (1956 - )

No abstract provided.

The Need For Comity: A Proposal For Federal Court Review Of Suppression Issues In The Dual Sovereignty Context After The Antiterrorism And Effective Death Penalty Act Of 1996, Carrie M. Bowden

Washington and Lee Law Review

No abstract provided.

Protection Against Unwarranted Searches And Seizures Of Corporate Premises Under Article 8 Of The European Convention On Human Rights: The Colas Est Sa V. France Approach, Marius Emberland

Michigan Journal of International Law

In this Article, the author considers the judgment delivered April 16, 2002, by the European Court of Human Rights in the case of Colas Est SA v. France. The judgment concerned the interpretation of Article 8 of the European Convention on Human Rights (ECHR), which provides: (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests …

Criminal Law—Scarlet Letters: Traffic Stops Based On “Special” License Plates Must Follow The Letter Of The Constitution—State V. Henning, Piper Kenney Webb, Bruce H. Hanley

William Mitchell Law Review

The Minnesota Supreme Court recently addressed whether a Minnesota statute authorizing law enforcement to stop motorists based solely on the presence of special license plates issued primarily to repeat drunken drivers is proper under the United States and Minnesota Constitutions. In State v. Henning, the court held the statute unconstitutional by a 4-3 decision. Finding no persuasive reason to do otherwise, the court struck down the legislature's attempt to eliminate the requirement that law enforcement have “reasonable articulable suspicion” to conduct an investigatory stop of a motor vehicle. This article provides a brief survey of similar laws in other states …

The Capital Jury And Empathy: The Problem Of Worthy And Unworthy Victims, Scott E. Sundby

Articles

No abstract provided.

Retrying Race, Anthony V. Alfieri

Articles

No abstract provided.

Nothing Less Than The Dignity Of Man: Evolving Standards, Botched Executions And Utah's Controversial Use Of The Firing Squad , Christopher Q. Cutler

Cleveland State Law Review

While outrage boils to the surface when Utah uses its firing squad option, there is little substantive legal development concerning the firing squad's use. Few cases have challenged the firing squad's constitutionality. This article discusses the legal and political implications of the firing squad. Using the Supreme Court's everdeveloping Eighth Amendment jurisprudence as a guide, this article discusses whether the firing squad, both historically and in its present application, passes constitutional muster. Beyond those factors that trigger constitutional protection, this article discusses those elements of the firing squad's use which define society's humanity and demonstrate our dignity. In the end, …

Dialectic And Revolution: Confronting Kelsen And Gadamer On Legal Interpretation, Hans Lindahl

Cardozo Law Review

This paper examines the general structure and conditions of legal interpretation that arise from confronting Gadamer's philosophical hermeneutics with a determinate conception of legal interpretation suggested by Kelsen's Pure Theory of Law. The Gadamerian question, "What defines legal interpretation as interpretation?", suggests that Kelsen's reference to legal norms as "schemes of interpretation" must be radicalized: a hermeneutic circularity or dialectic is at work in the law, such that the legal interpretation of reality also changes, to a lesser or greater extent, the principle of interpretation - the legal norm. The Kelsenian question, "What defines interpretation as legal interpretation?", suggests …

Danger At The Edge Of Chaos: Predicting Violent Behavior In A Post-Daubert World, Erica Beecher-Monas, Edgar Garcia-Ril

Law Faculty Research Publications

No abstract provided.

Weighing Poison Fruit, Yale Kamisar

Articles

In the simplest cases involving the exclusion of illegally obtained evidence, the items the defense is trying to suppress, such as drugs found during the search of a suspect's pocket, are direct, or primary, in their relationship to the police action. Thus, if the police have acted unlawfully, the evidence must be excluded from trial.

Many times, however, evidence is derivative, or secondary, in character. For example, an illegal search may turn up a key to an airport locker where the proceeds of a bank robbery are being kept. Or a coerced confession may reveal the place where a suspect …

Admissibility As Cause And Effect: Considering Affirmative Rights Under The Confrontation Clause, John G. Douglass

Law Faculty Publications

In this essay, I first examine some of the strategic choices spawned by the Supreme Court's "microscopic" focus on reliability in confrontation-hearsay cases. Rather than promoting the value at the core of the Confrontation Clause-the adversarial testing of prosecution evidence-the Court's approach leads to choices that ignore that value. While the Court scrutinizes hearsay under the microscope of reliability, it leaves the parties free to ignore and even to avoid available opportunities for effective confrontation of the hearsay declarant. At the same time, the Court's constitutional definition of reliability-which it equates with "firmly rooted" hearsay exceptions -has encouraged prosecutors to …

From A Biopolitical Point Of View: Nietzsche's Philosophy Of Crime, Friedrich Balke

Cardozo Law Review

No abstract provided.

Ten Years Of Payne: Victim Impact Evidence In Capital Cases, John H. Blume

Cornell Law Faculty Publications

A little over a decade ago, in Payne v. Tennessee, the U.S. Supreme Court cleared the way for capital sentencing juries to consider “victim impact evidence” (VIE). Reversing its prior decisions in Booth v. Maryland and South Carolina v. Gathers, a six to three majority of the Court held that “if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar.” Part I of this Article will discuss the Court’s prior decisions in Booth and Gathers, and Parts II and III will …

Victim Characteristics And Victim Impact Evidence In South Carolina Capital Cases, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells

Cornell Law Faculty Publications

This article is available at:

http://scholarship.law.cornell.edu/facpub/290/.

The use of victim impact evidence (VIE) has been a standard feature of capital trials since 1991, when the Supreme Court lifted the previously existing constitutional bar to such evidence. Legal scholars have almost universally condemned the use of VIE, criticizing it on a variety of grounds.

Yet little empirical analysis exists that examines how VIE influences the course and outcome of capital trials. Moreover, the handful of empirical analyses that do exist rely on data gathered in simulation studies. Although valuable contributions have emerged from these experimental studies, such studies have often-rehearsed …

Speeding In Reverse: An Anecdotal View Of Why Victim Impact Testimony Should Not Be Driving Capital Prosecutions, Sheri Johnson

Cornell Law Faculty Publications

No abstract provided.

Victim Characteristics And Victim Impact Evidence In South Carolina Capital Cases, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells

Cornell Law Faculty Publications

The use of victim impact evidence (VIE) has been a standard feature of capital trials since 1991, when the Supreme Court lifted the previously existing constitutional bar to such evidence. Legal scholars have almost universally condemned the use of VIE, criticizing it on a variety of grounds. Yet little empirical analysis exists that examines how VIE influences the course and outcome of capital trials. We analyze the influence of VIE based on interviews with over two-hundred jurors who sat on capital trials in South Carolina between 1985 and 2001.

First, we describe the VIE introduced at sentencing trials, using a …

Nullification At Work? A Glimpse From The National Center For State Courts Study Of Hung Juries, Paula Hannaford-Agor, Valerie P. Hans

Cornell Law Faculty Publications

In recent years, the criminal justice community has become increasingly concerned about the possibility that jury nullification is the underlying motivation for increasing numbers of acquittals and mistrials due to jury deadlock in felony jury trials. In this Article, the authors discuss the inherent difficulty in defining jury nullification and identifying its occurrence in actual trials. They review the evolution in public and legal opinion about the legitimacy of jury nullification and contemporary judicial responses to perceived instances of jury nullification. Finally, the authors examine the possible presence of jury nullification through empirical analysis of data collected from 372 felony …