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Articles 1 - 30 of 211
Full-Text Articles in Criminal Procedure
Death Penalty Law, Therese M. Day
Death Penalty Law, Therese M. Day
Mercer Law Review
This Article provides a survey of death penalty caselaw in Georgia from June 1, 2007 through May 31, 2008. The cases included in this Survey were heard by the Georgia Supreme Court on interim appeal and direct appeal. Discussion is limited to claims that present new issues of law, refine existing law, or are otherwise instructive.
Self-Incrimination Doctrine Is Dead; Long Live Self-Incrimination Doctrine: Confessions, Scientific Evidence, And The Anxieties Of The Liberal State, Kenworthey Bilz
Self-Incrimination Doctrine Is Dead; Long Live Self-Incrimination Doctrine: Confessions, Scientific Evidence, And The Anxieties Of The Liberal State, Kenworthey Bilz
Cardozo Law Review
Confessions have historically been the most compelling evidence the state could offer at a criminal trial. However, improvements in forensic technologies have led to increased use of scientific evidence, such as DNA typing, videotapes, pattern-recognition software, location tracking devices, and the like, with very impressive rates of reliability. The reliability of these methods has become so impressive, in fact, that it far outstrips confessions. This should lead to a reduced reliance on confessions (and other nonscientific evidence, such as eyewitness identifications) over time. However, this does not mean that the doctrine of self-incrimination, which regulates the acquisition and use of …
Corporate Confessions, Brandon L. Garrett
Corporate Confessions, Brandon L. Garrett
Cardozo Law Review
In corporate crime investigations, when prosecutors pursue charges against both employees and corporations, confessions raise several novel questions without clear answers in constitutional criminal procedure. First, corporations confess. The firm, a target of a criminal investigation, may itself admit to crimes by employees as part of a settlement agreement with prosecutors. While useful to study in their impact and form, as a constitutional matter such confessions can not be coerced, the Supreme Court has adopted a "collective entity rule" that corporate persons may not invoke Fifth Amendment privilege. Second, before itself confessing, the firm may encourage employees to provide statements …
Introduction: Wherefor The Privilege?, Kate Stith
Introduction: Wherefor The Privilege?, Kate Stith
Cardozo Law Review
No abstract provided.
Self-Incrimination In European Human Rights Law - A Pregnant Pragmatism?, Andrew Ashworth
Self-Incrimination In European Human Rights Law - A Pregnant Pragmatism?, Andrew Ashworth
Cardozo Law Review
No abstract provided.
The Sixth Amendment And Criminal Sentencing, Stephanos Bibas, Susan Klein
The Sixth Amendment And Criminal Sentencing, Stephanos Bibas, Susan Klein
Cardozo Law Review
This symposium essay explores the impact of Rita, Gall, and Kimbrough on state and federal sentencing and plea bargaining systems. The Court continues to try to explain how the Sixth Amendment jury trial right limits legislative and judicial control of criminal sentencing. Equally important, the opposing sides in this debate have begun to form a stable consensus. These decisions inject more uncertainty in the process and free trial judges to counterbalance prosecutors. Thus, we predict, these decisions will move the balance of plea bargaining power back toward criminal defendants.
Deregulating Guilt: The Information Culture Of The Criminal System, Alexandra Natapoff
Deregulating Guilt: The Information Culture Of The Criminal System, Alexandra Natapoff
Cardozo Law Review
The criminal system has an uneasy relationship with information. On the one hand, the criminal process is centrally defined by stringent evidentiary and information rules and a commitment to public transparency. On the other, largely due to the dominance of plea bargaining, criminal liability is determined by all sorts of unregulated, non-public information that never pass through the quality control of evidentiary, discovery, or other criminal procedure restrictions. The result is a process that generates determinations of liability that are often unmoored from systemic information constraints. This phenomenon is exemplified, and intensified, by the widespread use of criminal informants, or …
The Consequences Of Compelled Self-Incrimination In Terrorism Investigations: A Comparison Of American Grand Juries And Canadian Investigative Hearings, Kent Roach
Cardozo Law Review
No abstract provided.
Theorizing About Self-Incrimination, Ronald J. Allen
Theorizing About Self-Incrimination, Ronald J. Allen
Cardozo Law Review
No abstract provided.
Circumventing Congress: How The Federal Courts Opened The Door To Impeaching Criminal Defendants With Prior Convictions, Jeffrey Bellin
Circumventing Congress: How The Federal Courts Opened The Door To Impeaching Criminal Defendants With Prior Convictions, Jeffrey Bellin
Faculty Publications
This Article spotlights the flawed analytical framework at the heart of the federal courts’ approach to one of the most controversial trial practices in American criminal jurisprudence — the admission of prior convictions to impeach the credibility of defendants who testify. As the Article explains, the flawed approach is a byproduct of the courts’ reliance on a five-factor analytical framework to implement the governing legal standard enacted by Congress in Federal Rule of Evidence 609. Tracing the evolution of the fivefactor framework from its roots in pre-Rule 609 case law, the Article demonstrates that the courts’ reinterpretation of the framework …
Toward Ethical Plea Bargaining, Erica Hashimoto
Toward Ethical Plea Bargaining, Erica Hashimoto
Cardozo Law Review
No abstract provided.
Self-Incrimination And The Epistemology Of Testimony, Michael S. Pardo
Self-Incrimination And The Epistemology Of Testimony, Michael S. Pardo
Cardozo Law Review
The Supreme Court's limitation of the privilege against self-incrimination to evidence of a testimonial nature has been controversial. The doctrinal reliance on a distinction between physical and testimonial evidence has proven difficult to apply in practice, and it has been criticized as being descriptively inaccurate, analytically incoherent, and normatively indefensible. This article offers a defense of the distinction on epistemological grounds. The philosophical focus on testimony as a source of knowledge provides some insight into what makes testimony distinct as an epistemic source. These considerations are used to provide a coherent and principled way to distinguish what evidence to treat …
English Warnings, Mike Redmayne
The Right To Silence Helps The Innocent: A Response To Critics, Alex Stein
The Right To Silence Helps The Innocent: A Response To Critics, Alex Stein
Cardozo Law Review
This Article responds to the numerous critics of Daniel J Seidmann & Alex Stein, The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege, 114 HARV. L. REV. 430 (2000). Under Seidmann and Stein's theory, the right to silence protects innocents who find themselves unable to corroborate their self-exonerating accounts by verifiable evidence. Absent the right, guilty criminals would pool with innocents by making false self-exonerating statements. Factfinders would consequently discount the probative value of all uncorroborated exculpatory statements, at the expense of those innocents who cannot corroborate their true accounts. The right to …
Summary Of Valdez V. State, 124 Nev. Adv. Op. No. 97, Elham Roohani
Summary Of Valdez V. State, 124 Nev. Adv. Op. No. 97, Elham Roohani
Nevada Supreme Court Summaries
Cumulative effect of prosecutorial misconduct and the abuse of discretion on the part of the district court through a failure to give the jury a written bifurcation instruction and the resultant effect of juror misconduct warrants reversal warranted reversal of a first-degree murder and attempted murder conviction.
The Chesterfield/Colonial Heights Drug Court: A Partnership Between The Criminal Justice System And The Treatment Community, Hon. Frederick G. Rockwell Iii
The Chesterfield/Colonial Heights Drug Court: A Partnership Between The Criminal Justice System And The Treatment Community, Hon. Frederick G. Rockwell Iii
University of Richmond Law Review
No abstract provided.
Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough
Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough
University of Richmond Law Review
No abstract provided.
Rights Without Remedy: The Myth Of State Court Accessibility After The Prison Litigation Reform Act, Alison Brill
Rights Without Remedy: The Myth Of State Court Accessibility After The Prison Litigation Reform Act, Alison Brill
Cardozo Law Review
No abstract provided.
Legitimating Criminal Justice Through Community Engagement: Lessons From The Jury Experience, Mark Findlay
Legitimating Criminal Justice Through Community Engagement: Lessons From The Jury Experience, Mark Findlay
Research Collection Yong Pung How School Of Law
Fundamentally justifying the jury is the opportunity it provides for community participation in criminal justice and the legitimation function that offers. Indeed, a strong political motivation for the recent introduction of jury trial in several transitional jurisdictions is the public confidence it transfers to the system at large. Recent research on juror comprehension and satisfaction suggests the possibility of interrogating the participation/confidence nexus more intricately. This note argues that it is the quality of the participation and the participant satisfaction which eventuates that predicts juror confidence. Where the legitimacy of criminal justice through juror participation is to be maximised then …
Summary Of Hernandez V. State, 124 Nev. Adv. Op. 83, Julian R. Gregory
Summary Of Hernandez V. State, 124 Nev. Adv. Op. 83, Julian R. Gregory
Nevada Supreme Court Summaries
Appeal from a district court order denying Defendant’s post-conviction petition for a writ of habeas corpus in a capital case.
Summary Of Rubio V. State, 124 Nev. Adv. Op. No. 87, Holly Cheong
Summary Of Rubio V. State, 124 Nev. Adv. Op. No. 87, Holly Cheong
Nevada Supreme Court Summaries
Appeal from a district court order denying relief for ineffective assistance in a criminal case resulting in deportation.
Summary Of State V. Harte, 124 Nev. Adv. Op. No. 82, Ian Houston
Summary Of State V. Harte, 124 Nev. Adv. Op. No. 82, Ian Houston
Nevada Supreme Court Summaries
Appeal from a district court order partially granting a post-conviction petition for a writ of habeas corpus in a death penalty case.
Summary Of Davidson V. State, 124 Nev. Adv. Op. 76, Moorea Katz
Summary Of Davidson V. State, 124 Nev. Adv. Op. 76, Moorea Katz
Nevada Supreme Court Summaries
Appeal from a criminal conviction of two counts of burglary, two counts of robbery, two counts of battery, and adjudication as a habitual criminal.
Summary Of Knipes V State, 124 Nev. Adv. Op. No. 79, Miranda Mahe
Summary Of Knipes V State, 124 Nev. Adv. Op. No. 79, Miranda Mahe
Nevada Supreme Court Summaries
Appeal from a conviction of driving under the influence causing death on the basis that the district court failed to follow the procedural safeguards for juror questioning.
Confessing In The Human Voice: A Defense Of The Privilege Against Selfincrimination, Andrew E. Taslitz
Confessing In The Human Voice: A Defense Of The Privilege Against Selfincrimination, Andrew E. Taslitz
Cardozo Public Law, Policy & Ethics Journal
The Fifth Amendment privilege against self-incrimination is a cornerstone of American constitutional law, yet it faces erosion through recent Supreme Court rulings and scholarly critiques. The article presents a novel defense of this privilege, focusing on the protection of the "literal voice" and "metaphorical voice," arguing that compelled speech uniquely harms dignity, identity, and autonomy. It critiques existing justifications as insufficient and proposes a framework rooted in social science and linguistic compulsion, emphasizing the privilege's role in preventing state overreach and safeguarding individual autonomy.
Danforth, Retroactivity, And Federalism, J. Thomas Sullivan
Danforth, Retroactivity, And Federalism, J. Thomas Sullivan
Law Faculty Scholarship
No abstract provided.
Social Reality And Philosophical Ideals In Transitional Justice, Jamie Rowen
Social Reality And Philosophical Ideals In Transitional Justice, Jamie Rowen
Cardozo Public Law, Policy & Ethics Journal
The article argues that transitional justice mechanisms in post-conflict societies, such as Bosnia, often fail to establish legitimate authority because they neglect the crucial role of community building. It emphasizes that community is a prerequisite for legal authority and highlights the dialectical relationship between law and community, where each can shape the other. The case of Bosnia illustrates how the International Criminal Tribunal for the former Yugoslavia (ICTY) and the War Crimes Chamber (WCC) in Sarajevo have struggled to gain legitimacy due to their focus on procedural values over community engagement. The article advocates for a reoriented approach to transitional …
Maintaining The Presumption Of Innocence In Date Rape Trials Through The Use Of Language Orders: State V. Safi And The Banning Of The Word "Rape", Jason Wool
William & Mary Journal of Race, Gender, and Social Justice
This note evaluates the use of language orders in date rape trials in which the defense is consent through a case study of State v. Safi, in which Tory Bowen claims that Pamir Safi date raped her. In that case, the trial judge granted a motion by the defense to prevent the prosecution and any of their witnesses from using words such as "rape" and "sexual assault." Using State v. Safi as a starting point, the author examines the use of such trial orders from the perspective of both defendants and victims. The author concludes that a modified version of …
Prosecutors' New Ethical Duty Relating To Wrongful Convictions, Niki Kuckes
Prosecutors' New Ethical Duty Relating To Wrongful Convictions, Niki Kuckes
Law Faculty Scholarship
No abstract provided.
The Constitutionality Of Court-Martialing Civilian Contractors In Iraq, Margaret Prystowsky
The Constitutionality Of Court-Martialing Civilian Contractors In Iraq, Margaret Prystowsky
Cardozo Public Law, Policy & Ethics Journal
The article examines the legal implications of outsourcing military functions to private contractors, focusing on the accountability gap under the Uniform Code of Military Justice (UCMJ). It argues that recent amendments to the UCMJ, particularly the expansion of court-martial jurisdiction over civilian contractors during declared wars and contingency operations, address this gap. The analysis concludes that these changes are constitutionally sound, given Congress's authority under Article I, Section 8, and align with legal precedent. However, the article also highlights practical challenges, such as prosecutorial discretion and limited penalties, which may undermine the effectiveness of these reforms.