Criminal Procedure Commons^™

Miranda’S Hidden Right, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

When the Court in Miranda v. Arizona applied the Fifth Amendment “right to remain silent” to the stationhouse, it also created an inherent contradiction that has bedeviled Miranda cases since. That is, the Court in Miranda said that a suspect can waive her right to remain silent but also that she must invoke it. Numerous courts have repeated this incantation, including most recently last summer in Berghuis v. Thompkins. But how can both be true about the same right? Either the suspect has the right and can waive it or does not yet enjoy it and must therefore invoke it. …

Can The Ceo Learn From The Condemned? The Application Of Capital Mitigation Strategies To White Collar Cases, Todd Haugh

All Faculty Scholarship

Ted Kaczynski and Bernie Madoff share much in common. Both are well-educated, extremely intelligent, charismatic figures. Both rose to the height of their chosen professions—mathematics and finance. And both will die in federal prison, Kaczynski for committing a twenty-year mail-bombing spree that killed three people and seriously injured dozens more, and Madoff for committing the largest Ponzi scheme in history, bilking thousands of people out of almost $65 billion. But that last similarity—Kaczynski’s and Madoff’s plight at sentencing—may not have had to be. While Kaczynski’s attorneys tirelessly investigated and argued every aspect of their client’s personal history, mental state, motivations, …

Juror Privacy In The Sixth Amendment Balance, Melanie D. Wilson

Scholarly Articles

Some eight million citizens report for jury duty every year. Arguably, jury duty is one of the most significant opportunities to participate in the democratic process. For the accused, the jury acts as an indispensable safeguard against government overreaching. One might expect, therefore, that our justice system would treat potential jurors with care and tact. The opposite is true. During voir dire, prospective jurors are required to share insights into their own lives, quirks, proclivities, and beliefs. Litigants have probed jurors’ sexual orientation, criminal histories, criminal victimization, health, family relations, and beyond. A few scholars have chided the system for …

Evidence-Based Litigation Reform, Emily Spottswood

Scholarly Publications

No abstract provided.

G Forces: Gideon V. Wainwright And Matthew Adler's Move Beyond Cost-Benefit Analysis, Janet Moore

Faculty Articles and Other Publications

With the approach of the fiftieth anniversary of Gideon v. Wainwright, Matthew Adler's continuous prioritarian social welfare economic theory provides an interesting new resource for advocates of public defense reform. Adler argues for a moral decision-making procedure in large-scale policy settings that prioritizes the interests of the less well-off. This essay identifies some key steps in Adler's analysis, highlights several avenues for critique and further development of his arguments, and begins to explore the doctrinal development of the right to counsel as an instantiation of his inequality-averse approach to moral decision-making.

Berghuis V. Thompkins: Retreat From Miranda, Jacquline Grossi

Barry Law Review

No abstract provided.

Veterans Court: Towards The Implementation Of A Collaborative Justice Model In San Luis Obispo County, Daniel Smee

Continuing Education (CAPSTONE)

Veterans’ treatment courts represent an emerging trend across the country of collaborative justice designed to deal with criminal justice issues stemming from problems linked to military service. This approach places the veteran in VA (Veterans Affairs) treatment programs as a diversion from incarceration. There are few such courts in California (nine) largely in non-rural counties. This study investigated two rural counties, Tulare and Santa Barbara with Veterans courts to develop a model for such a court in San Luis Obispo County. Early recidivism data at the one-year point for Tulare County showed a zero percent rate of criminal behavior (12 …

Gender And The Charles Taylor Case At The Special Court For Sierra Leone, Valerie Oosterveld

Law Publications

No abstract provided.

Requiring The State To Justify Supermax Confinement For Mentally Iii Prisoners: A Disability Discrimination Approach, Brittany Glidden, Laura L. Rovner

Sturm College of Law: Faculty Scholarship

The Eighth Amendment has long served as the traditional legal vehicle for challenging prison conditions, including long-term isolation or “supermax” confinement. As described by Hafemeister and George in their article, The Ninth Circle of Hell: An Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary Confinement on Inmates with a Mental Illness, some prisoners with mental illness have prevailed in Eighth Amendment challenges to prolonged isolation. Yet an equal or greater number of these claims have been unsuccessful. This Essay considers why some of these cases fail, and suggests that one reason is that Eighth Amendment jurisprudence does not contain a …

Preferring Order To Justice, Laura L. Rovner, Jeanne Theoharis

Sturm College of Law: Faculty Scholarship

In the decade since 9/11, much has been written about the “War on Terror” and the lack of justice for people detained at Guantanamo or subjected to rendition and torture in CIA black sites. A central focus of the critique is the unreviewability of Executive branch action toward those detained and tried in military commissions. In those critiques, the federal courts are regularly celebrated for their due process and other rights protections. Yet in the past ten years, there has been little scrutiny of the hundreds of terrorism cases tried in the Article III courts and the state of the …

Democracy And Criminal Discovery Reform After Connick And Garcetti, Janet Moore

Faculty Articles and Other Publications

A leading cause of wrongful conviction and wasteful litigation in criminal cases is the nondisclosure of information beneficial to the defense by prosecutors and law enforcement as required by Brady v. Maryland. In Connick v. Thompson and Garcetti v. Ceballos, the Supreme Court weakened Brady’s enforceability by limiting the deterrent force of 42 U.S.C § 1983 liability. Connick highlights Garcetti’s implications as a criminal discovery case, which scholars have not fully analyzed. While Connick restricted § 1983 liability when prosecutors confess to suppressing exculpatory evidence, Garcetti restricted liability when prosecutors are disciplined for bringing Brady evidence to light. …

The Prisoners' Property Dilemma: The Proper Approach To Determine Prisoners' Protected Property Interests After Sandin And Castle Rock, Corbin R. Kennelly

Georgia Law Review

The Proper approach to determine when prisoners have
property interests protected by the Due Process Clause is
currently uncertain. The Supreme Court addressed
prisoners' liberty interests in Sandin v. Conner, but lower
courts have split over whether to apply the Sandin test to
prisoners' property interests. Further complicating
matters, the Supreme Court recently addressed property
interests generally in Town of Castle Rock v. Gonzales.
There, the Court seemed to add additional hurdles to the
finding of protected property interests: A statute must
clearly indicate that it gives rise to an entitlement; the
entitlement must have an ascertainable monetary value;
and, …

Pain, Love, And Voice: The Role Of Domestic Violence Victims In Sentencing, Hadar Dancig-Rosenberg, Dana Pugach

Michigan Journal of Gender & Law

Criminal law systems throughout the world have evolved to a stage where they no longer ask, "What is the appropriate role of the victim in a criminal trial?" The questions now relate to the scope of the victim's rights, in which procedures she has independent standing, and at what stage she should be heard. The process of the "prosecution stepping into the victim's shoes," whereby the state controls the entire criminal process, seemingly on behalf of the victim, has been replaced by the recognition that the interests of the prosecution (the State) are not always consistent with those of the …

Graham On The Ground, Cara H. Drinan

Scholarly Articles

In Graham v. Florida, the U.S. Supreme Court held that it is unconstitutional to sentence a non-homicide juvenile offender to life in prison without parole. While states need not guarantee release to these juvenile offenders, they cannot foreclose such an outcome at the sentencing phase. Scholars have identified several long-term ramifications of Graham, including its likely influence on juvenile sentencing practices and on retributive justice theory. As yet unexamined, though, are the important and thorny legal questions that Graham raises for state judges and lawmakers in the very short term. To whom does the Graham decision apply? What is the …

Electronic Privacy In The Government Workplace And The City Of Ontario, California V. Quon: The Supreme Court Brought Forth A Mouse, Clifford S. Fishman

Scholarly Articles

This Article begins with a very brief overview of fundamental Fourth Amendment principles and federal statutory regulation of electronic surveillance of communications. Part II consists of a detailed look at O'Connor v. Ortega, and the uncertainties the decision created in the law. Part III examines City of Ontario v. Quon, and analyzes what the Court did decide. Part IV examines the issues in Quon that the Court did not decide. Part V states my conclusions as to where the decision leaves the law. The Article ends with an "user's guide" to Quon, which outlines how litigants and judges should …

Clemency In A Time Of Crisis, Cara H. Drinan

Scholarly Articles

At the state level, the power to pardon or commute a criminal sentence — that is, to grant clemency — is vested in either the Governor, an executive clemency board, or some combination thereof. Until very recently, clemency grants were a consistent feature of our criminal justice system. In the last four decades, though, state clemency grants have declined significantly; in some states, clemency seems to have disappeared altogether. In this Article, I contend that executive clemency should be revived at the state level in response to ongoing systemic criminal justice failings. Part I of this Article describes clemency at …

Professionalism And Advocacy At Trial – Real Jurors Speak In Detail About The Performance Of Their Advocates, Mitchell J. Frank, Osvaldo F. Morera

Faculty Scholarship

No abstract provided.

Justice And Efficiency: An Empirical Study On Simplified Procedure For Guilty Plea Cases, Bensen Li

Maurer Theses and Dissertations

This study explores the simplified procedure for guilty plea cases emerged in the context of the rise of crime in China. It examines the effect of the simplified procedure and the relevance of the concept of guilty plea in practice, seeking to answer the questions such as: how efficient was it in process durations in the simplified procedure? Is there any difference for guilty plea cases in sentencing between simplified procedure and regular procedure cases? What is the core problem in considerations and relationship between justice and efficiency in the simplified procedure?

To answer these questions, the empirical study is …

Redinocente: The Challenge Of Bringing Innocence Work To Latin America, Justin Brooks

Faculty Scholarship

No abstract provided.

Find The Cost Of Freedom: The State Of Wrongful Conviction Compensation Statutes Across The Country And The Strange Legal Odyssey Of Timothy Atkins, Justin Brooks, Alexander Simpson

Faculty Scholarship

Tim Atkins was wrongfully convicted of a crime he did not commit and spent 23 years in prison. Although compensation statutes like California's have admirable goals, Tim Atkins's case fell through some substantial cracks that prompted the Authors to write this Article. As two of the many lawyers who have worked on Tim's case over the years, it has been an incredibly frustrating journey to see him denied compensation after all that has been done to prove his innocence. California's statute is flawed and is being misinterpreted, just as other compensation statutes are flawed and misinterpreted around the country. This …

Our Broken Misdemeanor Justice System: Its Problems And Some Potential Solutions, Eve Brensike Primus

Reviews

Although misdemeanors comprise an overwhelming majority of state criminal court cases, little judicial and scholarly attention has been focused on how misdemeanor courts actually operate. In her article, Misdemeanors, Alexandra Natapoff rights this wrong and explains how the low-visibility, highly discretionary decisions made by actors at the misdemeanor level often result in rampant discrimination, incredible inefficiency, and vast miscarriages of justice. Misdemeanors makes a significant contribution to the literature by refocusing attention on the importance of misdemeanor offenses and beginning an important dialogue about what steps should be taken going forward to fix our broken misdemeanor justice system.

No Justice In Utah's Justice Courts: Constitutional Issues, Systemic Problems, And The Failure To Protect Defendants In Utah's Infamous Local Courts, Samuel P. Newton

Articles

No abstract provided.

The Missed Opportunity Of United States V. Jones: Commercial Erosion Of Fourth Amendment Protection In A Post Google Earth World, Mary Graw Leary

Scholarly Articles

The Fourth Amendment protects people from unreasonable searches and seizures by the government. These protections, therefore, are only triggered when the government engages is a “search” or “seizure.” For decades, the Court defined “search” as a government examination of an area where one has a “reasonable expectation of privacy.” Such an expectation requires both that the individual demonstrate a subjective expectation of privacy and that the expectation is one society finds reasonable. In 1974, Anthony Amsterdam prophesized the unworkability of this test, warning of a day that the government would circumvent it my merely announcing 24 hour surveillance. Similarly, the …

Lafler And Frye: Good News For Public Defense Litigation, Cara H. Drinan

Scholarly Articles

In Missouri v. Frye and Lafler v. Cooper, the Supreme Court confirmed that the Sixth Amendment right to counsel applies to the plea negotiation process and held that prejudicial error can flow from ineffective plea advice. The defense community has applauded these decisions for recognizing the pivotal role that guilty pleas play in our criminal justice system and for requiring a minimum level of efficacy in plea lawyering. In this brief essay, I suggest that Frye and Lafler are victories for the defense community in yet another way. The decisions reflect judicial realism, and in this respect, they are especially …

Africa And The International Criminal Court, Charles C. Jalloh

Articles

No abstract provided.

Book Review, Samuel W. Buell

Faculty Scholarship

No abstract provided.

Criminal Sentencing Under The Advisory Guidelines And The Ex Post Facto Clause, 45 J. Marshall L. Rev. 435 (2012), Megan Preusker

UIC Law Review

No abstract provided.

Protecting Tax Payers And Crime Victims: The Case For Restricting Utah's Preliminary Hearings To Felony Offenses, Paul G. Cassell, Thomas E. Goodwin

Utah OnLaw: The Utah Law Review Online Supplement

Requiring preliminary hearings for Class A misdemeanors is undesirable for two simple reasons. First, the court’s decision will result in hundreds of additional preliminary hearings a year, thus imposing substantial costs on taxpayers and burdens on an already overwhelmed criminal justice system. Second, the decision will create substantial hardships for crime victims, who will now be twice subjected to cross-examination by defense attorneys—once at the preliminary hearing and again later at trial. And these costs will generate no significant benefit in return.

A Study Of Comparative Practice Of The International Tribunals: How Do Other International Tribunals Deal With Witnesses Who Have Provided A Written Statement At The Pre-Trial Stage Of The Proceedings But Are Unavailable To Testify At Trial?, Christopher L. Cassaniti

War Crimes Memoranda

No abstract provided.

A Study Of Comparative Practice Of The International Tribunals. Under Which Conditions May Subpoenas Be Issued Against Witnesses And Potential Witnesses Who Refuse To Cooperate... Subpoena Has Been Issued., Anna Toniolo

War Crimes Memoranda

No abstract provided.