Criminal Procedure Commons^™

Close Enough For Government Work: The Committee Rulemaking Game, Paul Stancil

Faculty Scholarship

Procedural rules in U.S. courts often have predictable and systemic substantive consequences. Yet the vast majority of procedural rules are drafted, debated, and ultimately enacted by a committee rulemaking process substantially removed from significant legislative or executive supervision. This Article explores the dynamics of the committee rulemaking process through a game-theoretical lens. The model reveals that inferior players in the committee rulemaking game - advisory committees, the Standing Committee on Rules of Practice and Procedure, the Judicial Conference and the Supreme Court - are sometimes able to arbitrage Congressional transaction costs to obtain results at odds with the results Congress …

The Case For Criminalising Primary Infringements Of Copyright – Perspectives From Singapore, Cheng Lim Saw

Research Collection Yong Pung How School Of Law

Hitherto, criminal liability only attached to, inter alia, the commercial manufacture, importation, distribution and sale of infringing copies of copyright material.1 In the noncommercial context, it was also a criminal offence to distribute infringing materials that had a prejudicial impact on the copyright owner.2 The defendant therefore could not be subject to criminal prosecution for infringing acts that were not motivated by profit or that did not involve “prejudicial” distribution. Only civil liability attached to copyright infringements for what may be loosely termed “non-commercial” purposes. All this, of course, changed when the United States–Singapore Free Trade Agreement (USSFTA) was concluded …

'Fruits Of The Poisonous Tree' In Comparative Law, Stephen C. Thaman

All Faculty Scholarship

This article gives a brief review of the types of exclusionary rules articulated in modern codes, constitutions, and jurisprudence, and explores how these rules are interpreted when excluding the derivative “fruits” of constitutional violations of the right to silence and human dignity during police interrogations and the right to privacy in one’s home and confidential communications. It shows, whether a country begins with a seemingly airtight categorical exclusionary rule for serious constitutional violations, or allows judges great discretion in deciding whether to use fruits of unconstitutional police behavior, the search for truth has largely triumphed over constitutional rights. As a …

What Is Changing? 'The Future Is Not What It Used To Be', Michael A. Wolff

All Faculty Scholarship

The editors of the Federal Sentencing Reporter asked a number of experts on sentencing in 2008 to write short pieces on what they expected after a "change" election. In 2010 the editors asked: what changed? Judge Wolff’s response, which concentrates on the states, is that the states’ dire financial conditions and the effect of the California marijuana legalization proposition, which gathered serious support but failed, have affected the public’s perceptions of sentencing policy. The public and their representatives are trying more to be smart on crime rather than tough on crime, and the public is becoming increasingly skeptical of the …

Bentham On Stilts: The Bare Relevance Of Subjectivity To Retributive Justice, Dan Markel, Chad Flanders, David C. Gray

All Faculty Scholarship

In recent work, various scholars have challenged retributive justice theorists to pay more attention to the subjective experience of punishment, specifically how punishment affects the experiences and well-being of offenders. The claim developed by these “subjectivists” is that because people’s experiences with pain and suffering differ, both diachronically and inter-subjectively, their punishments will have to be tailored to individual circumstances as well.

Our response is that this set of claims, once scrutinized, is either true, but of limited significance, or nontrivial, but unsound. We don’t doubt the possibility that different people will react differently to the same infliction of punishment. …

Protecting Crime Victims In Federal Appellate Courts: The Need To Broadly Construe The Crime Victims' Rights Act's Mandamus Provisions, Paul Cassell

Utah Law Faculty Scholarship

In 2004, Congress passed the Crime Victims’ Rights Act to dramatically reshape the federal criminal justice system and ensure that crime victims are treated fairly in the criminal process. An important feature of the CVRA is its provisions allowing victims to enforce their rights not only in trial courts, but also in appellate courts. Among the enforcement provisions is one guaranteeing a crime victim expedited access to appellate review. The CVRA provides that if the district court denies any relief sought by a crime victim, the victim “may petition the court of appeals for a writ of mandamus. . . …

Liberty Lost: The Moral Case For Marijuana Law Reform, Eva Nilsen

Faculty Scholarship

Marijuana policy analyses typically focus on the relative costs and benefits of present policy and its feasible alternatives. This Essay addresses a prior, threshold issue: whether marijuana criminal laws abridge fundamental individual rights, and if so, whether there are grounds that justify doing so. Over 700, 000 people are arrested annually for simple marijuana possession, a small but significant proportion of the 100 million Americans who have committed the same crime. In this Essay, we present a civil libertarian case for repealing marijuana possession laws. We put forward two arguments corresponding to the two distinct liberty concerns implicated by laws …

Suspicion And The Protection Of Fourth Amendment Values, Fabio Arcila Jr.

Scholarly Works

Suspicion is perhaps the core foundational principle through which we seek to protect and vindicate Fourth Amendment values. Fourth Amendment law could not be clearer, and repeats over and over again, that it proceeds from a presumptive suspicion requirement. We are all so familiar with that proposition that we can easily incant it: a governmental search is presumptively unconstitutional unless supported by some threshold of prior suspicion. Though suspicion is thus a hallmark of Fourth Amendment black letter law, I come to critique it. I critique it because the presumptive suspicion requirement's provenance is historically questionable, both as a matter …

Conditional Rules In Criminal Procedure: Alice In Wonderland Meets The Constitution, David J. Rossman

Faculty Scholarship

Without recognizing that it has done so, the Supreme Court has created a category of constitutional rules of criminal procedure that are all in a peculiar format, conditional rules. A conditional rule depends on some future event to determine whether one has failed to honor it. In a wide variety of contexts, if a police officer, prosecutor, judge or defense attorney does something that the Constitution regulates, one cannot determine if the constitutional rule has been violated or not until some point in the future.

The Court has used three methods to create these rules. One looks to prejudice, and …

Inter-Judge Sentencing Disparity After Booker: A First Look, Ryan W. Scott

Articles by Maurer Faculty

A central purpose of the Sentencing Reform Act was to reduce inter-judge sentencing disparity, driven not by legitimate differences between offenders and offense conduct, but by the philosophy, politics, or biases of the sentencing judge. The federal Sentencing Guidelines, despite their well-recognized deficiencies, succeeded in reducing that form of unwarranted disparity. But in a series of decisions from 2005 to 2007, the Supreme Court rendered the Guidelines advisory (Booker), set a highly deferential standard for appellate review (Gall), and explicitly authorized judges to reject the policy judgments of the Sentencing Commission (Kimbrough). Since then, the Commission has received extensive anecdotal …

Reconceiving The Fourth Amendment And The Exclusionary Rule, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

The Death Of Suspicion, Fabio Arcila Jr.

Scholarly Works

This article argues that neither the presumptive warrant requirement nor the presumptive suspicion requirement are correct. Though representative of the common law, they do not reflect the totality of our historic experience, which includes civil search practices. More importantly, modern developments - such as urban life and technological advancements, the rise of the regulatory state, and security concerns post-9/11 - have sufficiently changed circumstances so that these rules are not just unworkable now, they are demonstrably wrong. Worst of all, adhering to them has prevented us from formulating a more coherent Fourth Amendment jurisprudence. A new paradigm confronts us, in …

Humonetarianism: The New Correctional Discourse Of Scarcity, Hadar Aviram

Faculty Scholarship

No abstract provided.

Dangerousness, Risk, And Release, Hadar Aviram, Valerie Kraml, Nicole Schmidt

Faculty Scholarship

No abstract provided.

Defining The Problem, Hadar Aviram

Faculty Scholarship

No abstract provided.

Moving Targets: Placing The Good Faith Doctrine In The Context Of Fragmented Policing, Hadar Aviram, Jeremy Seymour, Richard Leo

Faculty Scholarship

No abstract provided.

Changing The Topography Of Sentencing, Kate Bloch

Faculty Scholarship

No abstract provided.

Reconceptualizing Restorative Justice, Kate Bloch

Faculty Scholarship

No abstract provided.

Reviving Lenity And Honest Belief At The Boundaries Of Criminal Law, John L. Diamond

Faculty Scholarship

No abstract provided.

It's Not My Problem? Wrong: Prosecutors Have An Important Ethical Role To Play, Rory K. Little

Faculty Scholarship

No abstract provided.

Dealing With Excessive Caseloads With Litigation - Panel Two (National Public Defense Symposium: Achieving The Promise Of The Sixth Amendment: Non-Capital And Capital Defense Services), Adele Bernhard

Articles & Chapters

No abstract provided.

Unasked (And Unanswered) Questions About The Role Of Neuroimaging In The Criminal Trial Process, Michael L. Perlin, Valerie Mcclain

Articles & Chapters

The robust neuroimaging debate has dealt mostly with philosophical questions about free will, responsibility, and the relationship between brain abnormalities, violence and crime. This debate, however, obscures several important issues of criminal procedure to which little attention has as of yet been paid: 1) an indigent defendant's right of access to expert testimony in cases where neuroimaging tests might be critical, 2) a defendant's competency to consent to the imposition of a neuroimaging test; and 3) the impact of antipsychotic medications on a defendant's brain at the time that such a test is performed. This article will consider these questions …

Sentencing Reform In California, Aaron J. Rappaport

Faculty Scholarship

No abstract provided.