Criminal Procedure Commons^™

False Convictions, Phoebe C. Ellsworth, Samuel R. Gross

Book Chapters

False convictions have received a lot of attention in recent years. Two-hundred and forty-one prisoners have been released after DNA testing has proved their innocence, and hundreds of others have been released without DNA evidence. We now know quite a bit more about false convictions than we did thirty years ago - but there is much more that we do not know, and may never know.

Social-Network Theory And The Diffusion Of The Search-And-Seizure Exclusionary Rule Among State Courts Between Weeks And Wolf, Laurence A. Benner, Robert Bird, Donald J. Smythe

Faculty Scholarship

In light of the Supreme Court’s recent narrowing of the Fourth Amendment exclusionary rule in cases like Herring v. United States and Davis v. United States, there is renewed interest in whether state supreme courts will maintain or similarly narrow the search and seizure exclusionary rule for violations of their own state constitutions. The pattern of early adoptions of the exclusionary rule as a matter of state law before it was mandated by the federal Constitution may provide interesting insights into how the state supreme courts will respond to cases such as Herring and Davis. This article uses social-network theory …

Driving A Hard Bargain: Accepting Responsibility For A Significant Curtailment Of Federal Prosecutorial Discretion In United States V. Divens, Rory A. Eaton

Villanova Law Review (1956 - )

No abstract provided.

Nothing Is Not Enough: Fix The Absurd Post-Booker Federal Sentencing System, Frank O. Bowman Iii

Faculty Publications

This article is an elaboration of testimony I gave in February 2012 at a U.S. Sentencing Commission hearing considering whether the advisory guidelines system created by the Supreme Court’s 2005 decision in United States v. Booker should be modified or replaced. I argue that it should.

Achieving Fundamental Fairness For Oklahoma's Juveniles: The Role For Competency In Juvenile Proceedings, Mary Sue Backus

Faculty Articles

No abstract provided.

Citizen Participation In Japanese Criminal Trials: Reimagining The Right To Trial By Jury In The United States, Jon J. Lee

Faculty Articles

If the United States were to reform contemporary jury trials to match the Founders’ conception of the right to trial by jury, how might they look? In recent years, we have gained insight into how to answer that question from an unlikely source: Japan. This Article examines the introduction of citizen participation into the Japanese judicial system (the saiban-in seido) from a different perspective. Rather than focusing on the contemporary American jury system, this Article evaluates the Japanese reforms in light of the Founders’ conception of the right to trial by jury. It is this conception of the right to …

New Law, Old Cases, Fair Outcomes: Why The Illinois Supreme Court Must Overrule People V Flowers, 43 Loy. U. Chi. L.J. 727 (2012), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

No abstract provided.

Prosecution Appeals Of Court-Ordered Midtrial Acquittals: Permissible Under The Double Jeopardy Clause?, David S. Rudstein

Catholic University Law Review

No abstract provided.

Preplea Disclosure Of Impeachment Evidence, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Response to R. Michael Cassidy, Plea Bargaining, Discovery, and the Intractable Problem of Impeachment Disclosures, 64 Vand. L. Rev. 1429 (2011)

Party's Over: Admissibility Of Post-Trial Juror Testimony Should Depend On The Nature Of The Conduct, Justin Gillett

University of Michigan Journal of Law Reform Caveat

What do you call a weeklong period in which you and a handful of acquaintances drink alcohol every day at lunch, sleep though the afternoons, smoke marijuana and ingest a couple lines of cocaine on occasion? You call it the time when a jury convicted Anthony Tanner and William Conover of conspiracy to defraud the United States and commit various acts of mail fraud. Under a current rule of evidence, which precludes juror testimony to impeach a verdict except on extraneous prejudicial information, juror intoxication is not an external influence about which jurors may testify. A new test for the …

Ending Silence: Youth Speaking Up About Sexual Abuse In Custody - Mary’S Friend, Brenda V. Smith, Stephanie A. Kinard, Jaime M. Yarussi, Michael J. Auger

Research Reports & White Papers

focusing on female youth age 10-13

When Does Restitution Become Retribution?, Melanie M. Reid, Curtis L. Collier

Oklahoma Law Review

No abstract provided.

Ending Silence: Youth Speaking Up About Sexual Abuse In Custody - Sheila’S Dilemma, Brenda V. Smith, Stephanie A. Kinard, Jaime M. Yarussi, Michael J. Auger

Research Reports & White Papers

focusing on female youth age 14-18

Ending Silence: Youth Speaking Up About Sexual Abuse In Custody - Carol’S Question, Brenda V. Smith, Stephanie A. Kinard, Jaime M. Yarussi, Michael J. Auger

Research Reports & White Papers

focusing on sexual minority youth

The Viability Of An Insanity Defense In Federal Revocation Proceedings, Donna L. Eng

UF Law Faculty Publications

It's not an uncommon scenario: your client, who suffers from mental health issues, was given a probationary sentence. While on probation, your client stops taking his medication and has a mental breakdown in a public location. The police are called, and instead of just being involuntarily committed pursuant to the Baker Act, your client is also charged with violating the terms of his probation as a result of his interactions with the officers on scene.

The Invalidity Of A Plea Of Guilty To A Criminal Offense Made By Video Teleconferencing When The Defendant Is Not Present In Open Court, William R. Simpson Jr., Clint Miller, David Sudduth

University of Arkansas at Little Rock Law Review

A guilty plea by a defendant is more than an admission of conduct; it is the nail in the coffin that closes the case and results in conviction. Despite the critical importance of this moment, Arkansas district and circuit courts are more commonly taking guilty pleas from defendants by video teleconferencing (VTC) instead of requiring defendants to be physically present in the courtroom. This essay sets forth three separate arguments in support of the notion that a guilty plea to a criminal offense by VTC without the defendant being present in open court is invalid as a matter of Arkansas …

Theorizing Mental Health Courts, E. Lea Johnston

UF Law Faculty Publications

To date, no scholarly article has analyzed the theoretical basis of mental health courts, which currently exist in forty-three states. This Article examines the two utilitarian justifications proposed by mental health court advocates—therapeutic jurisprudence and therapeutic rehabilitation—and finds both insufficient. Therapeutic jurisprudence is inadequate to justify mental health courts because of its inability, by definition, to resolve significant normative conflict. In essence, mental health courts express values fundamentally at odds with those underlying the traditional criminal justice system. Furthermore, the sufficiency of rehabilitation, as this concept appears to be defined by mental health court advocates, depends on the validity of …

Expectations Of Privacy In Social Media, Stephen E. Henderson

Faculty Articles

This article, which largely tracks my remarks at Mississippi College’s Social Media Symposium, examines expectations of privacy in social media such as weblogs (blogs), Facebook pages, and Twitter tweets. Social media is diverse and ever-diversifying, and while I address some of that complexity, I focus on the core functionality, which provides the groundwork for further conversation as the technology and related social norms develop. As one would expect, just as with our offline communications and other online communications, in some we have an expectation of privacy that is recognized by current law, in some we have an expectation of privacy …

Unintended Consequences: The Impact Of The Court's Recent Cases On Structural Ineffective Assistance Of Counsel Claims, Lauren Sudeall Lucas

Faculty Publications By Year

The Supreme Court’s recent Sixth Amendment cases have garnered much attention for their potential impact on ineffective assistance of counsel claims asserted in the context of a criminal case. This short article explores the unintended consequences of these decisions on structural ineffective assistance of counsel claims made in the civil context alleging that systemic deficiencies are likely to lead to right to counsel violations. The article concludes that the Court’s departure from a trial-centered conception of the right to counsel, its willingness to articulate specific pre-trial duties of counsel and its more pragmatic approach towards enforcing the Sixth Amendment will …

Whistleblowers And Rogues: An Urgent Call For An Affirmative Defense To Corporate Criminal Liability, Marcia Narine

Catholic University Law Review

No abstract provided.

The Law And Economics Of Fluctuating Criminal Tendencies And Incapacitation, Murat C. Mungan

Faculty Scholarship

Economic analyses of criminal law are frequently and heavily criticized for being unable to explain many criminal law rules and doctrines that people find intuitively just. Existing economic models cannot properly explain, for instance, why criminal law distinguishes between (i) repeat offenders and first-time offenders, (ii) murder and voluntary manslaughter, and (iii) remorseful and non-remorseful offenders.

In this Article, I propose a new and richer economic theory of crime that captures the rationales behind these practices, and potentially behind many other important criminal law principles and doctrines. Unlike an overwhelming majority of previous economic analyses, my theory accounts not only …

Electronic Evidence In Canada, Robert Currie, Steve Coughlan

Articles, Book Chapters, & Popular Press

This chapter discusses the issues surrounding electronic evidence in Canada. Topics discussed include the best evidence rule, electronic signatures, web-based evidence, and video-tape and security camera evidence. In addition rules around protection of privacy, discovery, and confidentiality are pursued. Finally the chapter also considers the many issues which arise around gathering electronic evidence in the criminal context, including wiretaps, general warrants, and searches of computers and cell phones.

Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman

Articles

Crawford v. Washington radically transformed the doctrine governing the Confrontation Clause of the Sixth Amendment to the Constitution. Before Crawford, a prosecutor could introduce against an accused evidence of a hearsay statement, even one made in contemplation that it would be used in prosecution, so long as the statement fit within a "firmly rooted" hearsay exception or the court otherwise determined that the statement was sufficiently reliable to warrant admissibility. Crawford recognized that the Clause is a procedural guarantee, governing the manner in which prosecution witnesses give their testimony. Therefore, a prosecutor may not introduce a statement that is testimonial …

Shaken Baby Syndrome, Abusive Head Trauma, And Actual Innocence: Getting It Right, Keith A. Findley, Patrick D. Barnes, David A. Moran, Waney Squier

Articles

In the past decade, the existence of shaken baby syndrome (SBS) has been called into serious question by biomechanical studies, the medical and legal literature, and the media. As a result of these questions, SBS has been renamed abusive head trauma (AHT). This is, however, primarily a terminological shift: like SBS, AHT refers to the two-part hypothesis that one can reliably diagnose shaking or abuse from three internal findings (subdural hemorrhage, retinal hemorrhage, and encephalopathy) and that one can identify the perpetrator based on the onset of symptoms. Over the past decade, we have learned that this hypothesis fits poorly …

Who Said The Crawford Revolution Would Be Easy?, Richard D. Friedman

Articles

One of the central protections of our system of criminal justice is the right of the accused in all criminal prosecutions "to be confronted with the witnesses against him." It provides assurance that prosecution witnesses will give their testimony in the way demanded for centuries by Anglo-American courts-in the presence of the accused, subject to cross-examination- rather than in any other way. Witnesses may not, for example, testify by speaking privately to governmental agents in a police station or in their living rooms. Since shortly after it was adopted, however, the confrontation right became obscured by the ascendance of a …

Is Now The Time For Major Federal Sentencing Reform?, Sara Sun Beale

Faculty Scholarship

No abstract provided.

The North Carolina Racial Justice Act: An Essay On Substantive And Procedural Fairness In Death Penalty Litigation, Neil Vidmar

Faculty Scholarship

No abstract provided.

Forging Links And Renewing Ties: Applying The Principles Of Restorative And Procedural Justice To Better Respond To Criminal Offenders With A Mental Disorder, Thomas L. Hafemeister, Sharon G. Garner, Veronica E. Bath

Buffalo Law Review

No abstract provided.

Race, Brain Science, And Critical Decision-Making In The Context Of Constitutional Criminal Procedure, Christian M. Halliburton

Faculty Articles

This article surveys current and emerging neuroscience research that is uncovering deep cognitive-level and unconscious connections between race or racial constructs, perception, and decision making. Using those findings as a platform for consideration, the article addresses several implications that these cognitive patterns might have for the particular kinds of perceptual experiences and decision making opportunities that are relevant in the context of criminal law enforcement and police procedure, and begins to evaluate the influence that these cognitive trends may have on the development of specific legal regulatory mechanisms and their application to the larger law enforcement complex.

The Sky Is Still Not Falling, Richard D. Friedman

Articles

Cases since Crawford have mainly fallen into two categories. One involves accusations of crime, made by the apparent victim shortly after the incident. In Michigan v. Bryant, a majority of the Court adopted an unfortunately constricted view of the word "testimonial" in this context. That decision was a consequence of the Court having failed to adopt a robust view of when an accused forfeits the confrontation right. How the Court will deal with this situation-one mistake made in an attempt to compensate for another-is a perplexing and important question. This Essay, though, concentrates on the other principal category of post-Crawford …