Criminal Procedure Commons^™

Punishing Aggressors In U.S. Courts: Will The Act Of State Doctrine Bar National Prosecution Of The Crime Of Aggression?, Gergana Halpern

Cardozo Public Law, Policy & Ethics Journal

The note examines the intersection of the Act of State Doctrine and the prosecution of the crime of aggression in U.S. courts, arguing that while the doctrine does not legally preclude such prosecutions, practical considerations such as political sensitivity and the need for international legitimacy suggest that U.S. courts should await international consensus before proceeding. The analysis highlights the complexities of balancing legal principles with diplomatic realities.

Rethinking Drug Inadmissibility, Nancy Morawetz

William & Mary Law Review

Changes in federal statutory policy, state criminal justice laws, and federal enforcement initiatives have led to an inflexible and zero tolerance immigration policy with respect to minor drug use. This Article traces the evolution of the statutory scheme and how various provisions in state and federal law interact to create the current policy. It proceeds to investigate the broad reach of these rules if they are fully enforced, in light of the widespread lifetime experience with minor drug use both in the United States and abroad. Drawing on the experience of law enforcement agencies that have abandoned similarly rigid rules, …

Death By A Thousand Cases: After Booker, Rita, And Gall, The Guidelines Still Violate The Sixth Amendment, David C. Holman

William & Mary Law Review

No abstract provided.

What's Law Got To Do With It?: The Bosnia V. Serbia Decision's Impact On Reconciliation, Sheri P. Rosenberg

Articles

During the twentieth century a particular ideology inspired specific efforts to utilize the power of the law to redress episodes of mass atrocity-in particular genocide. The idea has been that accountability and reparations are necessary for moving beyond a past marred with crimes of genocide and crimes against humanity. Trials are often claimed to aid this process on the grounds that they create an irrefutable historic record, punish the perpetrators for the sake of justice and deterrence, and promote peace and reconciliation. This Article interrogates the stated goals of accountability, in particular the goal of reconciliation, against the impact, within …

Extra-Legal Characteristics And Sentencing Disparity Among Federal Drug Offenders, Justin D. Galasso

Sociology & Criminal Justice Theses & Dissertations

The development of the federal sentencing guidelines was made as an attempt to provide a uniform standard of sentencing procedure for defendants convicted within the federal legal system. Unfortunately, such unvarying policy has over the years birthed a system of sentencing that lacks equality among like defendants. The Supreme Court, in 2005, ruled that the sentencing guidelines were no longer to be compulsory during sentencing procedures, but rather act as an ancillary tool. The present study examines multiple legal and extra-legal variables and their influence on two aspects of imprisonment probability for federal drug offenders for the years of 1999-2006: …

The Fall And Rise Of Qualified Immunity: From Hope To Harris, Mark R. Brown

Nevada Law Journal

In Mitchell v. Forsyth (1985) the Court ruled that interlocutory appeals can be taken by government officials from denials of motions for summary judgment based on qualified immunity. Johnson v. Jones (1995) ruled that these interlocutory appeals are limited to legal questions, not matters of fact. This limited the effect of the Court’s holding in Anderson v. Creighton (1987) that some measure of factual similarity between prior reported cases and governmental wrongdoing is necessary to overcome qualified immunity. Hope v. Pelzer (2002) further cabined Anderson by rejecting the Eleventh Circuit’s conclusion that government wrongdoing must be “materially similar” to conduct …

Get In The Game Or Get Out Of The Way: Fixing The Politics Of Death, Adam M. Gershowitz

Faculty Publications

No abstract provided.

The Case Of Weak Will And Wayward Desire., Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

In this article, I confront Garvey¡¯s argument that a weak-willed individual deserves partial excuse for trying to resist a strong desire that pushes him toward commission of a criminal act even though in the end he unreasonably abandons his resistance and commits the crime.

I attempt to refute Garvey¡¯s argument on two counts: one, I question whether the law should indeed provide mitigation to such an offender; and two, I argue that, even if it should, this mitigation may not come in the form of a partial defense. Defenses, even partial, are desert based, and there is nothing in Garvey¡¯s …

Summary Of Mitchell V. State, 122 Nev. Adv. Op. No. 107, Aubree Nielsen

Nevada Supreme Court Summaries

Donald Mitchell appeals his second-degree murder conviction. Mitchell argues that the district court trial contained five procedural errors, the most significant being a violation of his Fifth Amendment right against self-incrimination.

Summary Of Picetti V. State, 124 Nev. Adv. Op. No. 68, Kristopher Zeppenfeld

Nevada Supreme Court Summaries

This appeal arises from a judgment of conviction, pursuant to a guilty plea, of one count of driving under the influence (DUI), which is his third offense within 7 years, a class B felony. Paul Thomas Picetti (“Picetti”) contends that the district court erred by denying his motion to suppress his prior DUI convictions. Moreover, he claims the district court erroneously refused to allow him an opportunity to apply for a treatment program established in NRS 484.379412 for third offense DUI offenders.

Summary Of Chartier V. State, 124 Nev. Adv. Op. No. 66, Kelly Stout

Nevada Supreme Court Summaries

This case is an appeal from a jury conviction in district court on one count of conspiracy to commit murder and two counts of first-degree murder with the use of a deadly weapon.

Summary Of Fergusen V. State, 124 Nev. Adv. Op. No. 69, Tara Zimmerman

Nevada Supreme Court Summaries

Appeal from a judgment of conviction, upon jury verdict, of one count each of burglary, sexual assault, robbery, and first-degree kidnapping.

Brief Of Amicus Curiae In Support Of Appellants, Quinton Richmond, Et Al., V. The District Court Of Maryland, Et Al., No. 08-54, Brenda Bratton Blom, Robert Rubinson, Phillip J. Closius

Court Briefs

Amici curiae brief filed by 78 faculty members from the University of Maryland School of Law and the University of Baltimore School of Law, on behalf of Appellants Quinton Richmond, et al. Amicus members felt the need to comment on the application and implications of the statutory right to counsel under Maryland law for indigent criminal defendants. The issue before the Court of Appeals was whether the Court’s previous holding in McCarter v. State, 363 Md. 705 (2001), that the plain language of the Maryland Public Defender Act created a right to counsel during all stages of a criminal …

Prosecutions Under The Adam Walsh Act: Is America Keeping Its Promise?, Emily A. White

Washington and Lee Law Review

No abstract provided.

The Most Dangerous Power Of The Prosecutor, Bennett L. Gershman

Pace Law Review

No abstract provided.

The Significance (If Any) For The Federal Criminal Justice System Of Advances In Lie Detector Technology, Jeffrey Bellin

Faculty Publications

Against a backdrop of accelerating developments in the science of lie detection certain to reopen the debate on the reliability and therefore admissibility of lie detector evidence in the federal courts, this Article examines whether the prohibition on hearsay evidence (or other evidentiary objections) will preclude admissibility of even scientifically reliable lie detector evidence. The Article concludes that the hearsay prohibition, which has been largely ignored by courts and commentators, is the primary obstacle to the future admission of scientifically valid lie detector evidence. The Article also suggests a potential solution to the hearsay problem that may allow admission of …

Finding A Happy And Ethical Medium Between A Prosecutor Who Believes The Defendant Didn't Do It And The Boss Who Says That He Did, Melanie D. Wilson

NULR Online

No abstract provided.

Integrating Comparative Criminal Law: Criminal Law And Procedure, At Home And Abroad, Roger Fairfax

Presentations

No abstract provided.

Dna – Intimate Information Or Trash For Public Consumption?, Melanie D. Wilson

Scholarly Articles

“Surreptitious sampling” may be police officers’ trump card in cracking otherwise unsolvable crimes as serious as murder, arson and rape. Law enforcement officers engage in surreptitious sampling when they covertly collect DNAsamples from unsuspecting people, who inadvertently leave behind hair, skin cells, saliva or other biological materials.Surreptitious sampling is a terrific crime-resolution tool. It allows diligent law enforcement officers to collect proof-positive evidence of guilt or innocence without the hassle of obtaining a warrant and absent probable cause or reasonable suspicion to believe that the contributor of the biological evidence committed a crime. Provided an officer has the energy and …

Summary Of Hill V. State, 124 Nev., Advance 52, Meredith Holmes

Nevada Supreme Court Summaries

Defendant-Appellant argued that the district court improperly denied his motion to dismiss the grand jury indictment and pretrial petition for writ of habeas corpus based on the State’s failure to report grand jury bias.

Summary Of Browning V. State Of Nevada, 124 Nev. Adv. Op. Citation 50, Philip Erwin

Nevada Supreme Court Summaries

This is an appeal from a sentence of death after remand for a new penalty hearing.

Summary Of State V. Dist. Ct. (Pullin), 124 Nev. Adv. Op. No. 54, Katie Maw

Nevada Supreme Court Summaries

This case came to the Court on a petition for a writ of mandamus challenging a district court’s order sentencing the real party in interest pursuant to NRS 193.165 amendments, which were made affective after the crimes in question were committed.

Consent To Harm, Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

This article continues conversation about consent to physical harm started in Vera Bergelson, The Right to Be Hurt: Testing the Boundaries of Consent, 75 Geo. Wash. L. Rev. 165 (2007).

Intentionally injuring or killing another person is presumptively wrong. To overcome this presumption, the perpetrator must establish a defense of justification. Consent of the victim may serve as one of the grounds for such a defense. This article puts forward criteria for the defense of consent.

One element of the proposed defense is essential to both its complete and partial forms ¨C that consent of the victim be rational and …

The Grand Jury Legal Advisor: Resurrecting The Grand Jury’S Shield, Thaddeus A. Hoffmeister

School of Law Faculty Publications

This Article advocates for the creation of a Grand Jury Legal Advisor (GJLA) to resurrect the historical autonomy of grand juries. The Article draws upon Hawaii's experiences with the GJLA, and incorporates survey responses from a representative sample of former GJLAs.

The Article begins with a general and historical overview of the grand jury process. This portion of the Article demonstrates how all three branches of government have contributed to the diminishment of the powers of grand jurors. Part IV of this Article discusses the important policy rationales underlying the need for grand jury autonomy; Part V recommends the implementation …

People V. Coughlin And Criticisms Of The Criminal Jury In Late Nineteenth-Century Chicago, Elizabeth Dale

UF Law Faculty Publications

The last decades of the nineteenth century and the first decades of the twentieth century are typically characterized as the era in which the criminal jury trial came to an end. Although criminal juries did not completely disappear, their role became smaller and smaller across that time frame. Most studies of this phenomenon attribute that decline to the rise of plea bargains in that same period. Specifically, these studies lead to the conclusion that institutional factors, such as case loads and the political pressure on elected prosecutors to be "tough on crime," made plea bargains an increasingly attractive option for …

"The Mother Of All Balancing Tests": State V. Ariegwe And Montana's Revised Speedy Trial Analysis, Myles Braccio, Jessie Lundberg

Montana Law Review

Right to Speedy Trial

Eyewitness Identification Reform In Massachusetts, Stanley Z. Fisher

Faculty Scholarship

This article traces the impact of the new scientific learning upon police eyewitness identification procedures in the Commonwealth of Massachusetts. Over the past 25 years, experimental psychologists have devised more reliable techniques for gathering eyewitness identification evidence than have been traditionally used by police. Massachusetts has over 350 autonomous municipal police departments, plus approximately 39 college campus police departments, the state police, and the MBTA (transit) Police Department. The decision how to investigate crime rests principally with the police chief responsible for each department. How does such a system of policing absorb new, scientifically superior methods of investigation?

Straddling The Civil-Criminal Divide: A Bifurcated Approach To Understanding The Nature Of Immigration Removal Proceedings, Peter L. Markowitz

Articles

The article advocates for reclassifying immigration removal proceedings, distinguishing between exclusion and expulsion. It argues that while exclusion should remain a civil process, expulsion, particularly for lawful permanent residents, should be treated as a criminal matter due to its punitive nature and severe consequences. This bifurcated approach aims to align legal procedures with the reality of the impact on individuals and ensure constitutional protections.

A Floor, Not A Ceiling: Federalism And Remedies For Violations Of Constitutional Rights In Danforth V. Minnesota, Ilya Somin

NULR Online

No abstract provided.

Summary Of Diomampo V. State Of Nevada, 124 Nev. Adv. Op. No. 41, Tyler James Watson

Nevada Supreme Court Summaries

Appeal from a judgment of conviction, upon jury verdict, of one count of mid-level trafficking in a controlled substance.