Criminal Procedure Commons^™

State Of Israel V. Jerusalem Magistrates Court, Dorit Beinisch, Mishael Cheshin, Aharon Barak

Translated Opinions

Facts: The third respondent (‘the respondent’) was indicted in the Jerusalem Magistrates Court for an offence of committing an indecent act. The victim of the alleged offence (‘the complainant’) kept a personal diary and the parts that were relevant to the period during which the complainant and the respondent were acquainted with one another were photocopied and sent to counsel for the respondent.

Counsel for the respondent applied to inspect the whole diary under s. 74 of the Criminal Procedure Law. The Magistrate Court ordered the prosecution to produce the whole diary for inspection by the court, after an ex …

Missing Miranda's Story, A Review Of Gary L. Stuart's, Miranda: The Story Of America's Right To Remain Silent, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

Miranda v. Arizona is the best known criminal procedure decision in the history of the Supreme Court. It has spawned dozens of books and hundreds of articles. The world does not need another Miranda book unless it has something new and interesting to tell readers. Unfortunately, to borrow an old cliche, the parts of Gary Stuart’s book that are new are, for the most part, not interesting and the parts that are interesting are, for the most part, not new. Stuart adds material to the Miranda storehouse about the involvement of local Arizona lawyers and judges in the original case, …

Pursuing Justice For The Mentally Disabled, Grant H. Morris

University of San Diego Public Law and Legal Theory Research Paper Series

This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as “sanism,” which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin’s characterization …

Dickerson V. United States: The Case That Disappointed Miranda's Critics--And Then Its Supporters, Yale Kamisar

University of San Diego Public Law and Legal Theory Research Paper Series

It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda’s constitutional status has become less and less meaningful.

In this paper I want to focus on the Court’s characterization of statements elicited in violation of the Miranda warnings as not actually “coerced” …

Overcriminalization, Discretion, Waiver: A Survey Of Possible Exit Strategies, Donald A. Dripps

University of San Diego Public Law and Legal Theory Research Paper Series

In both the constitutional law of American criminal justice and the scholarly literature that law has generated, substance and procedure receive radically different treatment. The Supreme Court, even in this conservative political period, continues to require costly procedural safeguards that go beyond what elected legislatures have provided by statute. The Court, however, has shown great deference to the choices these same legislatures have made about what conduct may be made criminal and how severely it may be punished.

The distinction between substance and procedure pervades academic thinking all the way down to its foundations. Substantive criminal law still holds its …

Police And Democracy, David Alan Sklansky

Michigan Law Review

Part I of the Article describes the emergence in postwar America of a particular understanding of a democracy, an understanding generally referred to as "democratic pluralism," "analytic pluralism," "pluralist theory," or simply "pluralism." We will spend a fair bit of time unpacking pluralism, because its fine points will prove important when we turn to the task of tracing its reflections in criminal procedure. That task is taken up in Part II, which examines the ways in which the central tenets of democratic pluralism found echoes in criminal procedure - construed broadly to include not only jurisprudence and legal scholarship but …

Victims Of Peace: Current Abuse Allegations Against U.N. Peacekeepers And The Role Of Law In Preventing Them In The Future, Alexandra R. Harrington

ExpressO

This article addresses the increasingly prevalent and horrific allegations of sexual abuse made against U.N. peacekeepers. The primary allegations addressed are those from the Congo, as the most plentiful and readily available evidence of these abuses comes from the region. The goal of this paper is not merely to critique the U.N. and its handling of the current peacekeeper abuse allegations, as such a critique would only serve half of the problem. Rather, this paper will use the past and current understandings of the U.N. Charter, peacekeeping, international law, and military justice to suggest several options for handling both the …

Summary Of Rosky V. State, 121 Nev. Adv. Op. No. 22, Jason Peck

Nevada Supreme Court Summaries

Police executed a search warrant at John Rosky’s apartment as part of an investigation into the sexual assault of a 13-year-old girl. Two police officers eventually drove Rosky to a police substation for questioning but they did not formally arrest him or administer Miranda warnings. Police informed Rosky that his participation was voluntary and that he was free to leave at any time. At one point during the questioning, Rosky took a ten-minute break and went outside the police station unaccompanied by the detectives. The detectives used mild forms of deception and confronted Rosky with their belief that he was …

Summary Of Viray V. State, 121 Nev. Adv. Op. 19, Chris Orme

Nevada Supreme Court Summaries

A jury convicted Benjardi Batucan Viray for lewdness with a minor. He appealed claiming that there was an improper inclusion of new information at a preliminary hearing and that this inclusion was sufficient to declare a mistrial. The Nevada Supreme Court held that a change in the factual situation is not sufficient to declare a mistrial if the inclusion of new information does not affect the defendant’s substantial rights and the charged offense remained the same. The second issue was whether a court should declare a mistrial when a juror disregards the admonishment of the court to not speak about …

The Crawford Issue- The Supreme Court Sharpens The Teeth Of The Confrontation Clause, Nathan Reed Haines

ExpressO

No abstract provided.

Foreword: Beyond Blakely And Booker: Pondering Modern Sentencing Process, Douglas A. Berman

The Ohio State University Moritz College of Law Working Paper Series

The Supreme Court’s landmark decision in Blakely v. Washington and its federal follow-up United States v. Booker are formally about the meaning and reach of the Sixth Amendment’s right to a jury trial. But these decisions implicate and reflect, both expressly and implicitly, a much broader array of constitutional provisions and principles, in particular, the Due Process Clause of the Fifth and Fourteenth Amendments and the notice provision of the Sixth Amendment. And the future structure and operation of modern sentencing systems may greatly depend on how courts and others approach the due process provisions and principles which lurk in …

How Panels Affect Judges: Evidence From United States District Courts, Ahmed E. Taha

University of Richmond Law Review

Recent research has shown that judges on panels decide cases differently than they do individually. Understanding these panel effects is essential to understanding and predicting judicial behavior. This Article uses a unique naturalexperiment, and interviewsof United States district court judges who participatedin this ex-periment, to empirically investigate panel effects. Specifically, in fourteen district courts the judges chose to sit in an en banc panelto decide the constitutionalityof the FederalSentencing Guide- lines; in fifty-three other districts, the judges decided the issue in- dividually instead. This Article compares the decisions and the characteristicsof these districts to study how panels affect judicialdecision making …

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

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 …

In Defense Of Porfiry Petrovich, Robert Batey

Cardozo Law Review

No abstract provided.

Apprendi's Limits, R. Craig Green

University of Richmond Law Review

No abstract provided.

The Appeal, Alex Kozinski, Alexander Volokh

Michigan Law Review

Appeal from the United States District Court. Hermann Bendemann, District Judge, Presiding. Argued and Submitted July 3, 1926. Filed May 1, 2005. Before: Alex K., Bucephalus and Godot, Circuit Judges. Opinion by Judge Alex K.

Equality, Objectivity, And Neutrality, Alafair S. Burke

Michigan Law Review

When is homicide reasonable? That familiar, yet unanswered question continues to intrigue both courts and criminal law scholars, in large part because any response must first address the question, "reasonable to whom?" The standard story about why that threshold question is both difficult and interesting usually involves a juxtaposition of "objective" and "subjective" standards for judging claims of reasonableness. On the one hand, the story goes, is a "subjective" standard of reasonableness under which jurors evaluate the reasonableness of a criminal defendant's beliefs and actions by comparing them to those of a hypothetical reasonable person sharing all of the individual …

United States V. Booker: The Demise Of Mandatory Federal Sentencing Guidelines And The Return Of Indeterminate Sentencing, Jonathan Chiu

University of Richmond Law Review

No abstract provided.

Is There A Future For Leniency In The U.S. Criminal Justice System?, Nora V. Demleitner

Michigan Law Review

The spring 2004 release of the gruesome pictures of sexual humiliation and torture at Abu Ghraib prison outside of Baghdad revealed how some U.S. troops, intelligence officers, and private contractors treated Iraqi prisoners taken during and after the war. High-ranking government officials may have condoned, if not encouraged, the abuses. Only reluctantly have they agreed to extend protections customarily accorded civilians and military fighters during a war to individuals detained in Iraq and Afghanistan. As Congressional investigations appear to have stalled, military inquiries have been manifold but resultless. Only a handful of low ranking soldiers have been court-martialed, and a …

Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error In Criminal Trials, Jason M. Solomon

Scholarly Works

This Article proceeds in four parts. Part II is a brief overview of harmless-error doctrine in the context of habeas challenges to state criminal convictions, focusing on the nature of the inquiry and the doctrinal deadlock described above. Part III is an empirical analysis of the post-Brecht cases in the federal courts of appeals. To search for a way out of the doctrinal deadlock, I started with a relatively straightforward question: what has happened to harmless-error analysis since Brecht? To answer this question, I reviewed and, with the help of a research assistant, coded all of the 315 …

Securing A Journalist's Testimonial Privilege In The International Criminal Court, Anastasia Heeger

San Diego International Law Journal

This Article argues that given the unique and significant contribution of journalists to uncovering and documenting war crimes, the ICC should amend its evidentiary rules to recognize a qualified journalist's privilege. In doing so, the ICC should clearly identify who may benefit from such a privilege, clarify a procedure for balancing the need of reportorial testimony against prosecution and defense interests, and, lastly provide for mandatory consultations between the court and affected news organizations or journalists before allowing the issuance of a subpoena. Such clarity will benefit not only journalists working in war zones and the ICC, but will provide …

Summary Of Miller V. State, 121 Nev. Adv. Op. 10 And Summary Of Daniel V. State, 121 Nev. Adv. Op. 11, Hagar Labouz

Nevada Supreme Court Summaries

Both Miller and Daniel arise out of a Las Vegas Metropolitan Police Department (LVMPD) decoy program designed to combat an increase in street-level robberies occurring in downtown Las Vegas. In Miller, a detective with the LVMPD disguised himself as an intoxicated vagrant and carried exposed cash in his pocket. The detective then positioned himself across from a bus station and leaned against a chain link fence. Richard Miller, an individual walking down the street, approached the detective and asked him for money. When the detective refused, Miller pulled the detective closer to him and took the cash from the detective’s …

Summary Of Sparks V. State, 120 Nev. Adv. Op. 12, Bryce Loveland

Nevada Supreme Court Summaries

The Nevada Supreme Court held that “Failure to Appear” clauses are not unconscionable in plea agreements and upheld one in this case.c

An Economic Analysis Of The Private And Social Costs Of The Provision Of Cybersecurity And Other Public Security Goods, Bruce H. Kobayashi

George Mason University School of Law Working Papers Series

This paper examines the incentives of private actors to invest in cybersecurity. Prior analyses have examined investments in security goods, such as locks or safes that have the characteristics of private goods. The analysis in this paper extends this analysis to examine expenditures on security goods, such as information, that have the characteristics of public goods. In contrast to the private goods case, where individual uncoordinated security expenditures can lead to an overproduction of security, the public goods case can result in the underproduction of security expenditures, and incentives to free ride. Thus, the formation of collective organizations may be …

Conditional Rights And Comparative Wrongs: More On The Theory And Application Of Comparative Criminal Liability, Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

This article continues to develop an argument in favor of comparative criminal liability started in "Victims and Perpetrators: An Argument for Comparative Liability in Criminal Law," (http://law.bepress.com/rutgersnewarklwps/fp/art19/) Buff. Crim. L. Rev. 385 (2005). The essence of my argument is that people’s rights are not static but depend on their actions, and victims may reduce their right not to be harmed either voluntarily, by consent, waiver or assumption of risk, or involuntarily, by an attack on some legally recognized rights of the perpetrator. If that happens, perpetrators should be entitled to a defense of complete or partial justification, which would eliminate …

The Revenge Of Mullaney V. Wilbur: U.S. V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, Ian Weinstein

ExpressO

This article offers a historically grounded account of the twists and turns in the Supreme Court's sentencing jurisprudence from the end of World War II to the Court's stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court's effort to respond to the changing political and social landscape of crime in America. In the mid 1970’s, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave …

The New Deterrence: Crime And Policy In The Age Of Globalization, Patrick Keenan

ExpressO

Globalization has made it much easier for criminal activity to cross borders, but deterrence theory has not kept up with this changed reality. I draw insights from both law-and-economics and criminology literature to enrich our understanding of deterrence. I ground my theoretical discussion in the real-world problem of sex tourism as an example of the kind of unwanted activity that now crosses borders and has complicated our understanding of deterrence. I focus on two issues central to deterrence that have not gotten sufficient scholarly attention: the phenomenon of displacement and the role of status. I argue that informal sanctions, as …

The Two Unanswered Questions Of Illinois V. Caballes: How To Make The World Safe For Binary Searches, Ric Simmons

The Ohio State University Moritz College of Law Working Paper Series

This Article discusses the recent Supreme Court decision Illinois v. Caballes, which held that the Fourth Amendment does not bar the use of drug-detection dogs, even in the absence of reasonable suspicion. It argues that the Caballes case paves the way for widespread and indiscriminant use of a new type of surveillance known as a binary search. A binary search is defined as a search which provides the law enforcement official with no information about the subject other than whether or not illegal activity is present. Drug-detection dogs are one example of a binary search, but there are many others …

What I Have Feared Most Has Now Come To Pass: Blakely, Booker, And The Future Of Sentencing, Katie M. Mcvoy

Notre Dame Law Review

No abstract provided.