Criminal Procedure Commons^™

Gender And Jury Deliberations: The Contributions Of Social Science, Lucy Fowler

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Criminal Law—The Sixth Amendment Right To Counsel—The Supreme Court Minimizes The Right To Effective Assistance Of Counsel By Maximizing The Deference Awarded To Barely Competent Defense Attorneys. Florida V. Nixon, 125 S. Ct. 551 (2004)., Jennifer Williams

University of Arkansas at Little Rock Law Review

No abstract provided.

Is Blakely V. Washington Retroactive?, Haifeng Peng

Cardozo Law Review

No abstract provided.

Effective Compliance Programs And Corporate Criminal Prosecutions, Philip A. Wellner

Cardozo Law Review

No abstract provided.

Signatures Of Ideology: The Case Of The Supreme Court's Criminal Docket, Ward Farnsworth

Michigan Law Review

Everyone suspects that Supreme Court justices' own views of policy play a part in their decisions, but the size and nature of the part is a matter of vague impression and frequent dispute. Do their preferences exert some pressure at the margin or are they better viewed as the mainsprings of decision? The latter claim, identified with legal realism, has been lent some support by political scientists who point out that some justices regularly vote for or against certain kinds of claims (for example, under the Fourth Amendment), or that votes in some areas are broadly predictable according to a …

Boys Will Be Boys: A Social Control Approach To Assessment Of Gender-Based Sentencing Disparity In Norfolk Circuit Court Cases, Fay F. Spence

Sociology & Criminal Justice Theses & Dissertations

This study evaluated the relationship between gender and sentencing severity for defendants convicted of violent crimes, victimless crimes, and theft crimes in Norfolk Circuit Court during 2001 and 2002. Based upon social control theories, the author hypothesized that women receive harsher penalties than men for violent crimes and victimless crimes, but that men receive harsher penalties for theft crimes. To test these hypotheses, the author relied, in part, upon data collected by the Norfolk Commonwealth Attorney's office on 3368 criminal cases filed in 2001 and concluded by May 22, 2002. After eliminating cases not pertinent to the study, the data …

Section 7: Criminal Procedure, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Summary Of Gaxiola V. State, 121 Nev. Adv. Op. 64, Debra L. Pieruschka

Nevada Supreme Court Summaries

An appeal from a judgment of conviction, entered after jury verdict, on five counts of sexual assault of a minor under the age of fourteen years and two counts of lewdness with a child under the age of fourteen years.

Summary Of Sandstrom V. Second Judicial District Court Of Nevada, 121 Nev. Adv. Op. 65, Jarrod Rickard

Nevada Supreme Court Summaries

Original petition for a writ of certiorari or in the alternative a writ of mandamus challenging the district court's order reversing and remanding a justice court order granting petitioner's motion to dismiss a misdemeanor criminal complaint.

Role-Based Policing: Restraining Police Conduct “Outside The Legitimate Investigative Sphere”, Eric J. Miller

ExpressO

The last quarter of a century has produced a growing legitimacy crisis in the criminal justice system arising from profound and familiar differences in race and class. The same tactics used to win the War on Crime also harassed and intimidated the very people policing was supposed to protect, sending disproportionate numbers of young minority men and women to prison as part of War On Drugs.

In this article, I take up challenge of social norms theorists who advocate empowering police and local communities through a variety of traditional and newly minted public order offenses. My claim is that the …

The Making Of The Usa Patriot Act I: The Legislative Process And Dynamics, Kam C. Wong

ExpressO

ABSTRACT On September 11, 2001, terrorists attacked America without warning, killing 2752 in New York City alone. The President declared war on terrorism and pledged to use all resources at United States’ disposal to conquer the enemy. On October 26, 2001, President Bush signed into law the USA PATRIOT ACT, giving the law enforcement officials expansive powers and security agencies increased resources to fight terrorism, at home and abroad.

A cursory review of the legal literature shows that the USA PATRIOT ACT was “rushed” passed Congress by the Bush administration without following the usual legislative procedure. Throughout the entire legislative …

Summary Of State V. Weber, 121 Nev. Adv. Op. 57, Danielle Oakley

Nevada Supreme Court Summaries

An appeal from a judgment of conviction and sentence of death, pursuant to a jury trial.

Summary Of Phillips V. State, 121 Nev. Adv. Op. 58, Patrick Murch

Nevada Supreme Court Summaries

Defendant/Appellant Donald E. Phillips ("Phillips") appealed from a jury conviction of one count each of aggravated stalking and preventing or dissuading a witness from testifying, and twelve counts of extortion.

Who Are The Good Guys? The Legacy Of Watergate And The Tangled Webs We Weave, Jeffrey A. Breinholt

ExpressO

This article examines the astounding revelation that Deep Throat, the anonymous source that brought down the Nixon Presidency, was Mark Felt, the man who ran the FBI during the Watergate Scandal. Was Mark Felt a hero or a villain? Thanks to the recent publication of Bob Woodward’s The Secret Man in combination with historical case law, we now have more historical evidence about what motivated Felt and how he reacted to his own legal misfortunes. This article examines this record and shows that categorizing Felt along the hero/villain continuum is not an easy task, but argues that this type of …

Separation Of Powers And The Criminal Law, Rachel E. Barkow

ExpressO

Scholars have written volumes about the separation of powers, but they have focused on the administrative state and have wholly ignored the criminal state. Judges, too, have failed to distinguish criminal from administrative matters. So, the conventional wisdom has been that whatever theory works for the administrative state should work for anything else, including crime. And because most scholars and judges have supported a flexible or functional approach to separation of powers in the regulatory sphere, they have failed to see a problem with the functional approach when it comes to criminal matters. Indeed, the Supreme Court has been even …

A Law And Economics Perspective On Terrorism, Nuno M. Garoupa , Jonathan Klick, Francesco Parisi

George Mason University School of Law Working Papers Series

This paper reviews the existing law and economics literature on crime, noting where various models might apply to the terror context. Specifically, it focuses on two strands of the literature, deterrence and incapacitation. Challenging the conventional application of the basic rational agent model of crime in the context of terrorism, it considers anti-terror measures enacted by different countries, highlighting how the details of the laws correspond to the insights from economic models of crime. In conclusion, the paper proposes an efficient sorting mechanism in which individuals will be provided with adequate incentives to reveal their type to law enforcement authorities.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Considering The Constitutionality Of A Confrontation Clause Exception For Domestic Violence Victims, Thekla Hansen-Young

Buffalo Women's Law Journal

No abstract provided.

True Lies: The Constitutional And Evidentiary Bases For Admitting Prior False Accusation Evidence In Sexual Assault Prosecutions, Jules Epstein

ExpressO

The admission of false accusation evidence in sexual assault prosecutions has been ruled on inconsistently by courts nationally. This article identifies the constitutional bases for admitting false accusation evidence as both impeachment and substantive (non-character) proof, and re-focuses Confrontation Clause analysis post-Crawford on the scope of the cross-examination right; offers a definition for what constitutes a false accusation and the level of proof requisite to its admission; and addresses social and policy concerns attendant to its presentation.

Prisons Of The Mind: Social Value And Economic Inefficiency In The Criminal Justice Response To Mental Illness, Amanda C. Pustilnik

ExpressO

This Article employs a “New Chicago School” law and economics analysis to examine why the staggering economic and human costs of channeling non-violent mentally ill adults and children into the criminal system not only are countenanced but embraced by voters and lawmakers. Analyzing legislation, statements by lawmakers and jurors, and historical sources, the Article contends that certain social value is created through the incarceration of this marginalized group. That is, there is a taste for the punishment of these people that incarceration satisfies but that therapeutic alternatives would not. The willingness to pay for this contestable taste keeps entrenched this …

Child Laundering: How The Intercountry Adoption System Legitimizes And Incentivizes The Practices Of Buying, Trafficking, Kidnapping, And Stealing Children, David M. Smolin

ExpressO

This article documents and analyzes a substantial incidence of "child laundering" within the intercountry adoption system. Child laundering occurs when children are taken illegally from birth families through child buying or kidnapping, and then "laundered" through the adoption system as "orphans" and then "adoptees." The article then proposes reforms to the intercountry adoption system that could substantially reduce the incidence of child laundering.

Guidance From Above And Beyond, Steven L. Chanenson

Working Paper Series

Criminal sentencing does not just happen in the courtroom. Some key sentencing decisions happen long before court convenes, while other critical sentencing decisions take place long after court adjourns. Although the public focuses primarily on the black-robed figure wielding the gavel, sentencing reflects decisions by a veritable parade of actors, including legislators, sentencing commissioners, police officers, prosecutors, juries, trial judges, appellate judges, and executive branch officials. All of these people guide and constrain the sentencing process. Through their official actions, they inform each other about what is happening in their corners of the sentencing drama, and prod their counterparts to …

Calling A Truce In The Culture Wars: From Enron To The Cia, Craig S. Lerner

George Mason University School of Law Working Papers Series

This Article compares and evaluates recent Congressional efforts to improve institutional “cultures” in the private and public sectors. The Sarbanes-Oxley Act of 2002 was designed to upgrade corporate culture by patching up the “walls” that separate corporate management from boards of directors, accountants, lawyers, and financial analysts. The Intelligence Reform Act of 2005 took a different tack, hammering away at walls that supposedly segmented the intelligence community. The logic was that the market failed because people did not observe sufficient formalities in their dealings with one another, while the intelligence community failed precisely because people kept their distance from one …

Summary Of Anderson V. State, 121 Nev. Adv. Op. 51, Bryce C. Loveland

Nevada Supreme Court Summaries

No abstract provided.

Life V. Death: Or Why The Death Penalty Should Marginally Deter, Charles N. W. Keckler

George Mason University School of Law Working Papers Series

Econometric measures of the effect of capital punishment have increasingly provided evidence that it deters homicides. However, most researchers on both sides of the death penalty debate continue to rely on rather simple assumptions about criminal behavior. I attempt to provide a more nuanced and predictive rational choice model of the incentives and disincentives to kill, with the aim of assessing to what extent the statistical findings of deterrence are in line with theoretical expectations. In particular, I examine whether it is plausible to suppose there is a marginal increase in deterrence created by increasing the penalty from life imprisonment …

Reasonable Suspicion And Mere Hunches, Craig S. Lerner

George Mason University School of Law Working Papers Series

In Terry v. Ohio, Earl Warren held that police officers could temporarily detain a suspect, provided that they could articulate the “reasonable inferences” for their suspicion, and not merely allude to a “hunch.” Since Terry, the American legal system has discounted the “mere” hunches of police officers, requiring them to articulate “specific” and “objective” observations of fact to support their decision to conduct a stop and frisk. The officer’s intuitions, gut feelings and sixth sense about a situation are all disallowed.

This dichotomy between facts and intuitions is built on sand. Emotions and intuitions can be reasonable, and reasons are …

When The Federal Death Penalty Is "Cruel And Unusual", Michael J.Z. Mannheimer

ExpressO

Recent changes to the way the U.S. Department of Justice decides whether to pursue capital charges have made it more likely that the federal death penalty will be sought in cases in which the criminal conduct occurred within States that do not authorize capital punishment for any crime. As a result, since 2002, five people have been sentenced to death in federal court for conduct that occurred in States that do not authorize the death penalty. This state of affairs is in serious tension with the Eighth Amendment’s proscription against “cruel and unusual punishments.” A complete understanding of the Bill …

Reconceptualizing Due Process In Criminal Justice: Contributions From Law And Social Science, Christopher Slobogin

ExpressO

This article challenges the accepted wisdom, at least since the Supreme Court’s decision in Gault, that procedures in juvenile delinquency court should mimic the adult criminal process. The legal basis for this challenge is Gault itself, as well as the other Supreme Court cases that triggered the juvenile justice revolution of the past decades, for all of these cases relied on the due process clause, not the provisions of the Constitution that form the foundation for adult criminal procedure. That means that the central goal in juvenile justice is fundamental fairness, which does not have to be congruent with the …

The Reasonableness Of Probable Cause, Craig S. Lerner

George Mason University School of Law Working Papers Series

Probable cause is generally cast in judicial opinions and the scholarly literature as a fixed probability of criminal activity. In the weeks before the September 11 attacks, FBI headquarters, applying such an unbending standard, rejected a warrant application to search Zacarias Moussaoui’s laptop computer. This article, which begins with an analysis of the Moussaoui episode, argues that the probable cause standard should be calibrated to the gravity of the investigated offense and the intrusiveness of a proposed search. Tracing the evolution of probable cause from the common law through its American development, the article argues that the Supreme Court’s current …

Deterring Roper’S Juveniles: Why Immature Criminal Youth Require The Death Penalty More Than Adults – A Law & Economics Approach, Moin A. Yahya

ExpressO

In Roper v. Simmons, the United States Supreme Court declared the death penalty for juveniles unconstitutional. It relied on three reasons, one of which concerns this article, namely the theory that juveniles are less culpable and deterrable than adults. The Court relied on the American Medical Association’s amicus brief which purported to show scientifically that juveniles had less developed brains than adults. The Court characterized juveniles as being risk-lovers who highly preferred the present over the future, who loved gains no matter how risky but did not care for losses, and who could not engage in proper cost-benefit analysis, because …