Open Access. Powered by Scholars. Published by Universities.®

Criminal Procedure Commons™

Open Access. Powered by Scholars. Published by Universities.®

2005

Discipline
Institution
Keyword
Publication
Publication Type

Articles 211 - 240 of 258

Full-Text Articles in Criminal Procedure

Nothing New Under The Sun? A Technologically Rational Doctrine Of Fourth Amendment Search, Stephen E. Henderson Jan 2005

Nothing New Under The Sun? A Technologically Rational Doctrine Of Fourth Amendment Search, Stephen E. Henderson

Faculty Articles

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Yet as interpreted by the United States Supreme Court, the Amendment places no restriction on police combing through financial records; telephone, e-mail and website transactional records; or garbage left for collection. Indeed there is no protection for any information knowingly provided to a third party, because the provider is said to retain no reasonable expectation of privacy in that information. As technology dictates that more and more of our personal lives are available to anyone equipped to receive them, and as social norms dictate that more and …

Go to article

Mixed Signals And Subtle Cues: Jury Independence And Judicial Appointment Of The Jury Foreperson, Andrew Horwitz Jan 2005

Mixed Signals And Subtle Cues: Jury Independence And Judicial Appointment Of The Jury Foreperson, Andrew Horwitz

Law Faculty Scholarship

Imagine that you are falsely accused of a serious crime and that you are now on trial before a judge and jury. You knew before the trial began that the judge had a reputation as a “law and order” judge, as a judge who was not at all receptive to the arguments of most criminal defense attorneys. You have been watching as the judge and your attorney have been engaged in what appears to be an adversarial battle throughout the trial, but you have taken some comfort in the fact that it will be the jury, not the judge, who …

Go to article

Above Contempt?: Regulating Government Overreaching In Terrorism Cases, Peter Margulies Jan 2005

Above Contempt?: Regulating Government Overreaching In Terrorism Cases, Peter Margulies

Law Faculty Scholarship

Prosecutors face the continual temptation to overreach in decisions about the control of information. At each phase of a criminal proceeding, from investigation through trial, prosecutors make crucial decisions about information to disclose and highlight with courts, juries, and the public. In ordinary times, courts, defense counsel, the media, and internal sources of oversight can place some constraints, however tenuous, on the prosecutor’s efforts to monopolize the management of information. However, external events, such as the attacks of September 11, 2001, can weaken these constraints, producing alarming spikes in prosecutorial power.

Go to article

Myths And Realities In The Sameness/Difference Debate, Rosemary C. Salomone Jan 2005

Myths And Realities In The Sameness/Difference Debate, Rosemary C. Salomone

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Go to article

Naked Before The Law: Reality Porn And The Capacity To Contract, Benjamin J. Cooper Jan 2005

Naked Before The Law: Reality Porn And The Capacity To Contract, Benjamin J. Cooper

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal challenges surrounding reality pornography, particularly through the lens of the Girls Gone Wild series, highlighting the tension between First Amendment protections for producers and the rights of participants. It argues that the legal framework governing consent, exploitation, and contractual agreements in this context is unclear and often fails to protect participants, many of whom face severe consequences. The analysis underscores the complexities of balancing public interest, contractual capacity, and the rights of minors in this lucrative yet legally fraught industry.

Go to article

The Alchemy Of A Moral Discourse About The Biology Of Gender: Historical Sensitivity, Genetic Literacy, And The Will To Imagine A Different Equality, Doriane Lambelet Coleman Jan 2005

The Alchemy Of A Moral Discourse About The Biology Of Gender: Historical Sensitivity, Genetic Literacy, And The Will To Imagine A Different Equality, Doriane Lambelet Coleman

Cardozo Journal of Equal Rights & Social Justice

The article explores the intersection of biology, genetics, and gender, emphasizing the need for a cautious and informed approach when integrating scientific findings into legal and social policies. It highlights the historical misuse of science to justify discrimination and advocates for a nuanced understanding that balances genetic insights with ethical considerations. The author proposes moving beyond a one-size-fits-all model of equality to one that accommodates differences, ensuring equitable opportunities for all.

Go to article

Home Alone: Children Of Incarcerated Mothers In New York City Under The Rockefeller Drug Laws, Aron M. Zimmerman Jan 2005

Home Alone: Children Of Incarcerated Mothers In New York City Under The Rockefeller Drug Laws, Aron M. Zimmerman

Cardozo Journal of Equal Rights & Social Justice

The Rockefeller Drug Laws of 1973, among the harshest in the nation, have failed to reduce drug trafficking or abuse and have instead led to unjust outcomes, disproportionately impacting racial minorities and women. These laws, which mandate draconian sentences based solely on drug type and quantity, tie judges' hands and prioritize incarceration over treatment, despite evidence that treatment is more cost-effective and reduces recidivism. Recent reforms offer some progress, but significant systemic changes are needed to address the laws' ongoing harm and restore judicial discretion in sentencing.

Go to article

Punishment Decisions At Conviction: Recognizing The Jury As Fault-Finder, Michael T. Cahill Jan 2005

Punishment Decisions At Conviction: Recognizing The Jury As Fault-Finder, Michael T. Cahill

Faculty Scholarship

No abstract provided.

Go to article

The Sui Generis Infallible Sniffing Dog And Other Legal Fictions: Illinois V. Caballes, Jerry E. Norton Jan 2005

The Sui Generis Infallible Sniffing Dog And Other Legal Fictions: Illinois V. Caballes, Jerry E. Norton

Public Interest Law Reporter

No abstract provided.

Go to article

The Future For Victims Of Violence: Will Vawa Be Renewed?, Jamie Friye Jan 2005

The Future For Victims Of Violence: Will Vawa Be Renewed?, Jamie Friye

Public Interest Law Reporter

No abstract provided.

Go to article

Constitutionally Excluded Confessions: Applying America's Lessons To A Democratic Iraq, Joseph T. Thai Jan 2005

Constitutionally Excluded Confessions: Applying America's Lessons To A Democratic Iraq, Joseph T. Thai

Oklahoma Law Review

No abstract provided.

Go to article

A Jurisprudence Of Doubt: Missouri V. Seibert, United States V. Patane, And The Supreme Court's Continued Confusion About The Constitutional Status Of Miranda, Johnathan L. Rogers Jan 2005

A Jurisprudence Of Doubt: Missouri V. Seibert, United States V. Patane, And The Supreme Court's Continued Confusion About The Constitutional Status Of Miranda, Johnathan L. Rogers

Oklahoma Law Review

No abstract provided.

Go to article

Police Shootings Under The Fourth Amendment, Wayne C. Beyer Jan 2005

Police Shootings Under The Fourth Amendment, Wayne C. Beyer

Richmond Journal of Law and the Public Interest

The Fourth Amendment permits police to use deadly force when there is an imminent threat of serious bodily harm or death to themselves or others. Although the governing standard is well established in a general way, its application to particular facts and circumstances may not be clear to officers on the street. Unless a reasonable police officer would have understood that his/her decision to shoot was clearly constitutionally prohibited, the officer may be entitled to qualified immunity, a decision that the court can make on summary judgment before trial. Discussed first are shootings that are not subject to Fourth Amendment …

Go to article

Hiibel V. Sixth Judicial District Court:Can Police Arrest Suspects For Withholding Their Names?, John Famum Jan 2005

Hiibel V. Sixth Judicial District Court:Can Police Arrest Suspects For Withholding Their Names?, John Famum

Richmond Journal of Law and the Public Interest

Suppose that someone calls the police and alerts them to a crime that has been committed. Using the information provided, the police stop you because you fit the description of the person reported. If the police ask your name, must you give it? The United States Supreme Court believes you must if the state you are in has passed a law requiring you to give your name. In a factual situation very similar to this, the United States Supreme Court held in Hiibel v. Sixth Judicial District Court that the Nevada law requiring a person to provide his name in …

Go to article

Co-Teaching International Criminal Law: New Strategies To Meet The Challenges Of A New Course, Stacy Caplow, Maryellen Fullerton Jan 2005

Co-Teaching International Criminal Law: New Strategies To Meet The Challenges Of A New Course, Stacy Caplow, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

Go to article

In (Slightly Uncomfortable) Defense Of ‘Triage’ By Public Defenders, John B. Mitchell Jan 2005

In (Slightly Uncomfortable) Defense Of ‘Triage’ By Public Defenders, John B. Mitchell

Faculty Articles

This article argues that triaging is necessary for public defenders and is a response to the work of Professor Freedman. Because states lack money in areas of greater community concern, the defense of indigent criminals is neglected and substantial resources are not likely to be forthcoming. The author previously set out a solution of triaging, which can be conducted either haphazardly or according to some set of rational principles based on ethical theory. The author concurs with Professor Freedman to the extent that the United States Supreme Court in Strickland v. Washington effectively ensures that Sixth Amendment Constitutional guarantees will …

Go to article

An Evidentiary Paradox: Defending The Character Evidence Prohibition By Upholding A Non-Character Theory Of Logical Relevance, The Doctrine Of Chances, Edward J. Imwinkelried Jan 2005

An Evidentiary Paradox: Defending The Character Evidence Prohibition By Upholding A Non-Character Theory Of Logical Relevance, The Doctrine Of Chances, Edward J. Imwinkelried

University of Richmond Law Review

No abstract provided.

Go to article

Military Spying In The United States: When It Is Not Your Neighbor Knocking At Your Door, Where Do You Turn?, Miriam Schneider Jan 2005

Military Spying In The United States: When It Is Not Your Neighbor Knocking At Your Door, Where Do You Turn?, Miriam Schneider

Cardozo Journal of Conflict Resolution

This Note will describe the role of the military in the United States and its relationship to privacy rights. Part I of this Note will describe the historical underpinnings that led to a limited role for the military within the United States territory, beyond defending against attack. Part II will describe the expectations by the courts and legislature for the military. In addition, it will illustrate instances where the military, along with numerous federal agencies, overstepped its traditional, constitutional and legal bounds. Part III will offer the legislature's response to, and its subsequent regulation of, the military and other federal …

Go to article

Constitutional Right Against Excessive Punishment, The, Youngjae Lee Jan 2005

Constitutional Right Against Excessive Punishment, The, Youngjae Lee

Faculty Scholarship

When is a death sentence, a sentence of imprisonment, or a fine so "excessive" or "disproportionate" in relation to the crime for which it is imposed that it violates the Eighth Amendment? Despite the urgings of various commentators and the Supreme Court's own repeated, albeit uncertain, gestures in the direction of proportionality regulation by the judiciary, the Court's answer to this question within the past few decades is a body of law that is messy and complex, yet largely meaningless as a constraint. In the core of this ineffectual and incoherent proportionality jurisprudence lies a conceptual confusion over the meaning …

Go to article

The Accelerating Degradation Of American Criminal Codes, Michael T. Cahill, Paul H. Robinson Jan 2005

The Accelerating Degradation Of American Criminal Codes, Michael T. Cahill, Paul H. Robinson

Faculty Scholarship

No abstract provided.

Go to article

How Earl Warren's Twenty-Two Years In Law Enforcement Affected His Work As Chief Justice, Yale Kamisar Jan 2005

How Earl Warren's Twenty-Two Years In Law Enforcement Affected His Work As Chief Justice, Yale Kamisar

Articles

Before becoming governor of California, Earl Warren had spent his entire legal career, twenty-two years, in law enforcement. Professor Kamisar maintains that this experience significantly influenced Warren's work as a Supreme Court justice and gave him a unique perspective into police interrogation and other police practices. This article discusses some of Warren's experiences in law enforcement and searches for evidence of that experience in Warren's opinions. For example, when Warren was head of the Alameda County District Attorney's Office, he and his deputies not only relied on confessions in many homicide cases but also themselves interrogated homicide suspects. The seeds …

Go to article

Judicial Regulation Of Excessive Punishments Through The Eighth Amendment, Youngjae Lee Jan 2005

Judicial Regulation Of Excessive Punishments Through The Eighth Amendment, Youngjae Lee

Faculty Scholarship

This article considers judicial regulation of excessive punishments through the Eighth Amendment.

Go to article

Conflicting Stories And Reasonable Doubt: Variations On W. (D.)'S Theme, Steve Coughlan Jan 2005

Conflicting Stories And Reasonable Doubt: Variations On W. (D.)'S Theme, Steve Coughlan

Articles, Book Chapters, & Popular Press

Whether the guilt of an accused has been proven beyond a reasonable doubt is always a difficult issue, particularly so when the accused has testified. There is little difficulty when an accused's exculpatory testimony is accepted by the trial judge, since that of course leads unambiguously to an acquittal. More complex is the situation where a trial judge does not simply accept the accused's version of events — that is, most of the time. In those circumstances, trial judge must embark down the twisty road of deciding whether disbelieved testimony can nonetheless result in an acquittal, or alternatively whether an …

Go to article

The New Universal Jurisdiction: In Absentia Signaling Over Clearly Defined Crimes, Anthony J. Colangelo Jan 2005

The New Universal Jurisdiction: In Absentia Signaling Over Clearly Defined Crimes, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

No abstract provided.

Go to article

Crawford Surprises: Mostly Unpleasant, Richard D. Friedman Jan 2005

Crawford Surprises: Mostly Unpleasant, Richard D. Friedman

Articles

Crawford v. Washington should not have been surprising. The Confrontation Clause guarantees a criminal defendant the right "to be confronted with the witnesses against him." The doctrine of Ohio v. Roberts, treating the clause as a general proscription against the admission of hearsay-except hearsay that fits within a "firmly rooted" exception or is otherwise deemed reliable-had so little to do with the constitutional text, or with the history or principle behind it, that eventually it was bound to be discarded. And the appeal of a testimonial approach to the clause seemed sufficiently strong to yield high hopes that ultimately the …

Go to article

Grappling With The Meaning Of 'Testimonial', Richard D. Friedman Jan 2005

Grappling With The Meaning Of 'Testimonial', Richard D. Friedman

Articles

Crawford v. Washington, has adopted a testimonial approach to the Confrontation Clause of the Sixth Amendment. Under this approach, a statement that is deemed to be testimonial in nature may not be introduced at trial against an accused unless he has had an opportunity to cross-examine the person who made the statement and that person is unavailable to testify at trial. If a statement is not deemed to be testimonial, then the Confrontation Clause poses little if any obstacle to its admission.2 A great deal therefore now rides on the meaning of the word "testimonial."

Go to article

The Decline Of The Juvenile Death Penalty: Scientific Evidence Of Evolving Norms, Jeffery Fagan Jan 2005

The Decline Of The Juvenile Death Penalty: Scientific Evidence Of Evolving Norms, Jeffery Fagan

Faculty Scholarship

Shortly after the U.S. Supreme Court issued its decision in Atkins v. Virginia holding that the execution of mentally retarded persons violated the Eighth Amendment, legal scholars, advocates, and journalists began to speculate that the Court would next turn its attention to the question of the execution of persons who were juveniles – below eighteen years of age – at the time they committed homicide. Following the Atkins decision, four Justices expressed the view that the rationale of Atkins also supported the conclusion that execution of juvenile offenders was unconstitutional. A constitutional test of capital punishment for juveniles was inevitable. …

Go to article

Summary Of Carter V. State, 121 Nev. Adv. Op. 75, Collin Webster Jan 2005

Summary Of Carter V. State, 121 Nev. Adv. Op. 75, Collin Webster

Nevada Supreme Court Summaries

Appeal from a judgment of conviction, entered after jury verdict, for one count of attempted sexual assault.

Go to article

Summary Of Flores V. State Of Nevada, 121 Nev. Adv. Op. 72, Patti Ross Jan 2005

Summary Of Flores V. State Of Nevada, 121 Nev. Adv. Op. 72, Patti Ross

Nevada Supreme Court Summaries

Defendant Martha Flores was found guilty of first-degree murder by child abuse of her five-year-old stepdaughter, Zoraida Flores. Postmortem examinations concluded that the child had been physically abused and her death was caused by a blunt-force trauma to the head. Flores resided with her husband, Jose Flores, his five-year-old daughter Zoraida, Flores’ daughters and mother and an infant. Flores was the primary caregiver of the family while Jose worked to support them. On January 28, 2001, emergency medical personnel responded to the Flores’ apartment and provided assistance to Zoraida. They were unable to resuscitate the child. The postmortem examination of …

Go to article

Summary Of Foster V. State, 121 Nev. Adv. Op. 20, Debra L. Pieruschka Jan 2005

Summary Of Foster V. State, 121 Nev. Adv. Op. 20, Debra L. Pieruschka

Nevada Supreme Court Summaries

Troy Anthony Foster, appellant, was charged with four counts of sexual assault and one count of kidnapping. A jury found Foster guilty of three counts of sexual assault and acquitted him on one count of sexual assault and of kidnapping. Foster appealed his conviction asserting five assignments of error. The Nevada Supreme Court rejected Foster’s contentions concluding in part the evidence presented at trial was more than sufficient to sustain the jury’s verdict. Foster then filed a post-conviction petition for a writ of habeas corpus in district court, claiming ineffective assistance of both trial and appellate counsel. The district court …

Go to article

First Prev Next Last