Criminal Procedure Commons^™

Reforming Homicide Law To Separate Guilt From Sentence: An International Gloss, Steve Coughlan

Articles, Book Chapters, & Popular Press

This article argues that Canadian homicide law is handicapped by trying to combine two contradictory approaches. In general, Canadian criminal law adopts the approach of setting out relatively rigid rules for determining guilt or innocence. That is, the Criminal Code sets out particular offences, and if the elements of an offence can be proven, then failing the presence of any defence (also relatively rigidly defined), any accused will be found guilty. The question of guilt or innocence is not individualized to the circumstances of the offender. On the other hand, sentencing decisions adopt exactly the opposite approach, and are made …

The End Of Constitutional Exemptions, Steve Coughlan

Articles, Book Chapters, & Popular Press

In R. v. Ferguson (reported ante p. 197) the Supreme Court decided that constitutional exemptions are not available as a remedy when a mandatory minimum sentence is said to violate section 12 of the Charter. This is a well reasoned and sensible decision. As mandatory minimum sentences are the context in which the possibility of the constitutional exemption as a Charter remedy has most frequently arisen, as a practical matter Ferguson largely disposes of the issue. Nonetheless, a further clarification at some point that constitutional exemptions are not available in any context, for other violations of section 12 or of …

Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman

Articles

Is a state forensic analyst's laboratory report, prepared for use in a criminal proceeding and identifying a substance as cocaine, "testimonial" evidence and so subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)?

Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman

Articles

If an accused murdered a witness, should he be deemed to have forfeited the right under the Sixth Amendment "to be confronted with" the witness, absent proof that the accused committed the murder for the purpose of rendering her unavailable as a witness?

No Longer A Safe Haven For Torturers: The United States Makes Its First Successful Prosecution Under The Torture Statute, Melissa A. Beckman

Public Interest Law Reporter

No abstract provided.

Likelihood Of Using Drug Courts: Predictions Using Procedural Justice And The Theory Of Planned Behavior, Evelyn M. Maeder, Richard L. Weiner

Department of Psychology: Faculty Publications

The current research compares two theoretical models borrowed from social psychology (theory of planned behavior and procedural justice) to predict intentions to make use of a drug court. Medicaid-eligible substance users answered a number of questions regarding their intentions to use a drug court in the future, including items from planned behavior and procedural justice scales. When procedural justice was considered alone, only trustworthiness predicted intention to use drug courts. When planned behavior was considered alone, only deliberative attitudes predicted the intention. After combining the two models, deliberative attitudes from the theory of planned behavior were the only significant predictor …

Letting Guidelines Be Guidelines (And Judges Be Judges), Gerard E. Lynch

Faculty Scholarship

In a prescient New York Times op-ed piece entitled "Let Guidelines be Guidelines," written in response to the Supreme Court's decision in Blakely v. Washington, before certiorari was granted in United States v. Booker, Bill Stuntz of Harvard and Kate Stith Cabranes of Yale urged that the best solution for the constitutional crisis facing the United States Sentencing Guidelines would be to treat the Guidelines as guidelines, and not as a straightjacket. The Supreme Court evidently took a similar view, deciding in Booker that the Guidelines were constitutional only to the extent that they were not mandatory. The recent follow-up …

Rehabilitating Juvenile Sex Offenders With A Life Sentence, 42 J. Marshall L. Rev. 187 (2008), Adam Doeringer

UIC Law Review

No abstract provided.

The Future Of Federal Sentencing Policy: Learning Lessons From Republican Judicial Appointees In The Guidelines Era, David M. Zlotnick

University of Colorado Law Review

In the two years since the landmark Booker decision, federal sentencing policy has been in a state of suspended animation. This Article urges federal sentencing reform advocates to look to an unlikely source for realistic goals and ideological support-the experiences of Republican judicial appointees in the Guidelines Era. Its findings are based upon a long-term research project into cases in which Republican appointees stated their disagreement with the sentences required by law from the bench. The Article discusses the primary product of my research, forty comprehensive case profiles and their policy implications. Specifically, the Article demonstrates how the lessons of …

A Tangled Web Of Justice: American Indian And Alaska Native Youth In Federal, State, And Tribal Justice Systems, Addie C. Rolnick, Neelum Arya

Scholarly Works

This policy brief is intended to serve as a resource for tribes, juvenile justice professionals, and other stakeholders interested in improving outcomes for Native youth by presenting the current state of knowledge on Native youth and their involvement in justice systems across the country.

Proceedings Of The Second International Humanitarian Law Dialogs, Sixtieth Anniversary Of The Genocide Convention: The Power Of A Word, Mark A. Drumbl

Scholarly Articles

Introductory lecture to the Second Annual International Humanitarian Law Dialogs.

The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) was adopted sixty years ago. The legacy of the Genocide Convention is inextricable from the legacy of Nuremberg and the legal work of the Nuremberg prosecutors, some of whom join us today. To this end, celebrating Nuremberg also means celebrating the Genocide Convention.

The Future Of Federal Sentencing Policy: Learning Lessons From Republican Judicial Appointees In The Guidelines Era, David M. Zlotnick

Law Faculty Scholarship

In the two years since the landmark Booker decision, federal sentencing policy has been in a state of suspended animation. This Article urges federal sentencing reform advocates to look to an unlikely source for realistic goals and ideological support --the experiences of Republican judicial appointees in the Guidelines Era. Its findings are based upon a long-term research project into cases in which Republican appointees stated their disagreement with the sentences required by law from the bench. The Article discusses the primary product of my research, forty comprehensive case profiles and their policy implications. Specifically, the Article demonstrates how the lessons …

Incest And Sex Offender Registration: Who Is Registration Helping And Who Is It Hurting?, Jocelyn Ho

Cardozo Journal of Equal Rights & Social Justice

The note argues that sex offender registration and notification laws, such as Megan's Law, disproportionately harm victims and offenders in cases of incest. It contends that incest is distinct from other sex crimes due to its familial nature and low recidivism rates, making its inclusion in public registries unnecessary and counterproductive. The psychological and social consequences of registration extend to victims, violating their privacy and perpetuating stigma. The note advocates for a shift in policy focus toward prevention, victim empowerment, and rehabilitation rather than punitive measures.

"The Public Gaze And The Prying Eye:" The South And The Privacy Doctrine In Nineteenth-Century Wife Abuse Cases, Jerome Nadelhaft

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Cross Dressing And The Criminal, Bennett Capers

Faculty Scholarship

No abstract provided.

The Role Of Attorney Ethics And Witness Misidentification In The 26 Year Incarceration Of An Innocent Man, Susan Poll Klaessy

Public Interest Law Reporter

No abstract provided.

Guilty Pleas Or Trials: Which Does The Barrister Prefer?, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Barristers in England and attorneys in the United States have been upbraided for pursuing their interests to their clients' detriment in recommending guilty pleas over trials. While this accusation against American attorneys could be true since their incentives are sometimes skewed to favor guilty pleas, it is not accurate with respect to barristers in England. This is because the latter’s selfish incentives--to maximize income and avoid sanction--incline them to prefer trials over guilty pleas. In Melbourne and Sydney, barristers have never been similarly accused. Indeed, the topic has not been studied. Based on interviews with legal professionals in those cities, …

Section 1983 Civil Rights Litigation From The October 2006 Term, Martin Schwartz

Touro Law Review

No abstract provided.

The More Things Change: A Psychological Case Against Allowing The Federal Sentencing Guidelines To Stay The Same In Light Of Gall, Kimbrough, And New Understandings Of Reasonableness Review, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

In December 2007, through two decisions, the Supreme Court sought to clean up the confusion that it created just shy of three years earlier when it rendered the Federal Sentencing Guidelines advisory in United States v. Booker and called for circuit courts to begin reviewing sentences for "unreasonableness." In one of those December decisions, Gall v. United States, the Court clarified what it meant by reasonableness review and explained that such review had both a procedural and substantive component. In the other decision, Kimbrough v. United States, the Court gave more meaning to the substantive component, …

In Whose "Best Interests"? – An International And Comparative Assessment Of Us Rules On Sentencing Of Juveniles, Jelani Jefferson Exum, John W. Head

Faculty Publications

According to numerous sources, both at the international level and within the USA, legal standards governing the treatment of children (commonly defined as persons under 18 years old)—including their treatment at the hands of the judicial system—should reflect an assessment of "the best interests of the child". An explicit announcement of this principle at the international level appears in the Convention on the Rights of the Child ("CRC"), which nearly all countries in the world have adopted. Article 37 of the CRC elaborates on the "best interests" principle, by prescribing six key standards national juvenile justice systems are to follow …

Promoting Prosecutorial Accountability, Independence And Effectiveness, Timothy W. Waters, Belinda Cooper

Books & Book Chapters by Maurer Faculty

Promoting Prosecutorial Accountability, Independence and Effectiveness assists readers in identifying and understanding best practices, and serves as a reference for policymakers, senior prosecutors, academics, and civil society leaders.

The publication should also guide and enrich national debates on prosecutorial reform, especially in countries—such as Bulgaria—which have recently transitioned to democracy.

Punishing Family Status , Jennifer M. Collins, Ethan J. Leib, Dan Markel

Faculty Scholarship

This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of family ties burdens, laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental responsibility laws, incest, bigamy, adultery, nonpayment of child support, and nonpayment of parental support. …

Pretrial And Preventative Detention Of Suspected Terrorists: Options And Constraints Under International Law, Douglass Cassel

Journal Articles

This article analyzes the grounds, procedures and conditions required by International Human Rights Law and International Humanitarian Law for pretrial detention of suspected terrorists for purposes of criminal law enforcement, and for their preventive detention for security and intelligence purposes. Recognizing the difficulties in securing sufficient admissible evidence to prosecute terrorists within the tight time limits imposed by international law, the Article nonetheless suggests that indefinite detention, solely or primarily for purposes of intelligence interrogation, is probably not lawful under U.S. or international law. Preventive detention for security purposes, on the other hand, is generally permitted by international law, provided …

Beyond Discretion: Prosecution, The Logic Of Sovereignty, And The Limits Of Law, Conor Clarke, Austin Sarat

Scholarship@WashULaw

Today it is widely recognized in both academic literature and the main-stream media that prosecutors have substantial discretion. Yet prosecutorial decisions involve, in our view, something more than a straightforward exercise of discretion. In this article we move from the language of discretion to that of sovereignty to describe prosecutorial power. In so doing we want to move from the language of administration to the language of power. Focusing on the decision not to prosecute, we argue that prosecutorial decisions participate in, and exemplify, the logic of sovereignty and its complex relationship to legality. By drawing on Carl Schmitt and …

Due Process For The Global Crime Era: A Proposal, Song Richardson

Scholarly Articles in Law Reviews & Journals

This article argues that the adjudication of transnational criminal cases in the United States raises troubling questions about the government's commitment to principled criminal process standards. Concern over global crime has resulted in a criminal process that inadequately protects fairness and legitimacy norms. Over 40 years ago, in his seminal work on the domestic criminal process, Herbert Packer described two models of criminal procedure: the crime control model and the due process model. The crime control model posits that the most important function of the criminal justice system is to suppress crime. The due process model focuses on the fallibility …

Criminal Procedure In Perspective, Kit Kinports

Faculty Scholarship

This Article attempts to situate the Supreme Court's constitutional criminal procedure jurisprudence in the academic debates surrounding the reasonable person standard, in particular, the extent to which objective standards should incorporate a particular individual's subjective characteristics. Analyzing the Supreme Court's search and seizure and confessions opinions, I find that the Court shifts opportunistically from case to case between subjective and objective tests, and between whose point of view - the police officer's or the defendant's - it views as controlling. Moreover, these deviations cannot be explained either by the principles the Court claims underlie the various constitutional provisions at issue …

Sentencing: Where Case Theory And The Client Meet, Kimberly A. Thomas

Articles

Criminal sentencing hearings provide unique opportunities for teaching and learning case theory. These hearings allow attorneys to develop a case theory in a context that both permits understanding of the concept and, at the same time, provides a window into the difficulties case theory can pose. Some features of sentencing hearings, such as relaxed rules of evidence and stock sentencing stories, provide a manageable application of case theory practice. Other features of sentencing hearings, such as the defendant's allocution, require an attorney to contend with competing "case theories," and as a result, to face the ethical and counseling challenge of …

Waiting For The Other Shoe: Hudson And The Precarious State Of Mapp, David A. Moran

Articles

I have no idea whether my death will be noted in the New York Times. But if it is, I fear the headline of my obituary will look something like: "Professor Dies; Lost Hudson v. Michigan' in Supreme Court, Leading to Abolition of Exclusionary Rule." The very existence of this Symposium panel shows, I think, that my fear is well-grounded. On the other hand, I am not quite as fearful that Hudson foreshadows the complete overruling of Mapp v. Ohio2 and Weeks v. United States3 as I was when I published an article just three months after the Hudson decision …

In Memoriam: Francis A. Allen, Yale Kamisar

Articles

Francis A. Allen graced the law faculties of five universities in the course of a remarkable, forty-six-year teaching career. In that time, he established himself as one of the half-dozen greatest twentieth century American scholars of criminal law and criminal procedure.

Strict Liability And Negligent Rape: Or How I Learned To Start Worrying And Question The Criminal Justice System, Dini Rosenbaum

Cardozo Journal of Equal Rights & Social Justice

The note critiques strict liability and negligent rape standards, advocating for a more nuanced approach that prioritizes subjective fault and societal education to address the limitations of current rape laws. It emphasizes the need to align legal standards with the defendant's actual state of mind while addressing systemic barriers to justice, particularly in date rape cases. The analysis highlights the gap between legal reforms and their practical application, suggesting that education could be a more effective tool for prevention than relying solely on legal changes.