Criminal Procedure Commons^™

Does The Lawyer Make A Difference? Public Defender V. Appointed Counsel, Peter A. Joy, Kevin C. Mcmunigal

Scholarship@WashULaw

A recent study found that poor criminal defendants in Philadelphia who were represented by court-appointed private lawyers were more often found guilty and sentenced to more time in prison than similarly situated defendants represented by public defenders. In this column, we review the details of the study, its findings, and its ethical and constitutional implications.

Prosecutors And Professional Regulation, Bruce A. Green

Faculty Scholarship

Prosecutors often express mistrust of professional regulators, their rules and their processes. This may have been more understandable twenty years ago, when prosecutors perceived that the organized bar had been captured by defense lawyers seeking to use professional regulation as a means of imposing limits on criminal investigative authority that the law did not otherwise recognize. Although that criticism no longer has much basis in reality, it has persisted in the rhetoric prosecutors employ in advocacy regarding their professional conduct. This article explores prosecutors’ public attitude toward professional regulation, beginning with a brief account of their responses two decades ago, …

Reconsidering State Parole Board Membership Requirements In Light Of Model Penal Code Sentencing Revisions, Stefan J. Bing

Kentucky Law Journal

No abstract provided.

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

Research Reports & White Papers

focusing on male youth age 10-13

Camreta And Al-Kidd: The Supreme Court, The Fourth Amendment, And Witnesses, Kit Kinports

Faculty Scholarship

Although few noticed the link between them, two Supreme Court cases decided in the same week last Term, Ashcroft v. al-Kidd and Camreta v. Greene, both involved the Fourth Amendment implications of detaining witnesses to a crime. Al-Kidd, an American citizen, was arrested under the federal material witness statute in connection with an investigation into terrorist activities, and Greene, a nine-year-old suspected victim of child abuse, was seized and interrogated at school by two state officials. The opinions issued in the two cases did little to resolve the constitutional issues that arise in witness detention cases, and in fact …

The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar

Articles

There has been a good deal of talk lately to the effect that Miranda1 is dead or dying-or might as well be dead.2 Even liberals have indicated that the death of Miranda might not be a bad thing. This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."4

Cyber Crime Control: Will Websites Ever Be Held Accountable For The Legal Activities They Profit From?, Ashley Ingber

Cardozo Journal of Equal Rights & Social Justice

The note examines the evolving legal landscape surrounding the liability of online platforms like Craigslist under Section 230 of the Communications Decency Act (CDA). While Section 230 currently shields Internet Service Providers (ISPs) from civil liability for third-party content, courts are increasingly narrowing its protections, particularly when platforms actively influence or profit from illegal activities. Criminal liability remains a significant exception to Section 230 immunity, and future legal developments may further restrict these protections, balancing free speech with accountability for online platforms.

Remedying Wrongful Execution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The first legal determination of wrongful execution in the United States may very well be in the making in Texas. One of the state’s district courts is in the midst of investigating whether Cameron Todd Willingham, who was executed in 2004, was actually innocent. The court’s investigation has been interrupted by objections from Texas prosecutors, but if the court proceeds, this may very well become a bona fide case of wrongful execution. Texas, just like other jurisdictions, is ill equipped to provide any relief for such an egregious wrong, however. This Article identifies the difficulties that the heirs, families, and …

Policing International Prosecutors, Jenia I. Turner

Faculty Journal Articles and Book Chapters

A recurring question in international criminal procedure is how to ensure that prosecutors are held accountable for their errors and misconduct. When International Criminal Court (ICC) judges encountered the first serious error by the prosecution in Prosecutor v. Lubanga, they opted for an absolutist approach to remedies: the judges stayed the proceedings and ordered the release of the defendant. Although termination of the case was avoided through the intervention of the Appeals Chamber, the standoff between the judges and the prosecution highlighted the dilemmas that the ICC faces in these circumstances. To protect the integrity of its proceedings, the court …

Prosecutors And Bargaining In Weak Cases: A Comparative View, Jenia I. Turner

Faculty Journal Articles and Book Chapters

One of the most controversial uses of prosecutorial discretion in plea bargaining concerns cases involving weak evidence of guilt. When a prosecutor bargains about the charges or even the facts in a case with weak evidence, at least three problems may arise. First, if the charge bargain is generous, it may coerce an innocent defendant to plead guilty. Second, such a bargain may let a guilty defendant off too easily, thus disserving the public and victim’s interests. Third, if the parties bargain about the facts, the result may distort the truth of the case.

In this book chapter, I examine …

Confrontation Control, Pamela R. Metzger

Faculty Journal Articles and Book Chapters

After Crawford v. Washington, 541 U.S. 36, 42 (2004), face-to-face confrontation between accused and accuser is the constitutionally normative mode of presentation for testimonial evidence. Yet, eight years into the Crawford revolution, courts routinely hold that counsel can waive a defendant's confrontation rights without even discussing the matter with the defendant. Why? Because counsel, not client, has the authority to decide whether to confront and cross-examine government witnesses.

This Essay, written as part of the Texas Tech Sixth Amendment Symposium, explores this peculiar and perplexing rule. If confrontation is essential to a constitutionally valid criminal trial, how can defense …

Reimagining Criminal Prosecution: Toward A Color-Conscious Professional Ethic For Prosecutors, Justin Murray

Publications

Prosecutors, like most Americans, view the criminal-justice system as fundamentally race neutral. They are aware that blacks are stopped, searched, arrested, and locked up in numbers that are vastly out of proportion to their fraction of the overall population. Yet, they generally assume that this outcome is justified because it reflects the sad reality that blacks commit a disproportionate share of crime in America. They are unable to detect the ways in which their own discretionary choices--and those of other actors in the criminal-justice system, such as legislators, police officers, and jurors--contribute to the staggering and disproportionate incarceration of black …

Is Texas Tough On Crime But Soft On Criminal Procedure?, Adam M. Gershowitz

Faculty Publications

Although Texas is well known for imposing tough punishments on convicted defendants, it is surprisingly generous in affording criminal procedure protections. In a variety of areas, including search and seizure rules, confession requirements, the availability of bail, prosecutorial discovery obligations, and jury trial guarantees, Texas affords protections vastly in excess of what is required by the United States Constitution. Even more shocking, these criminal procedure guarantees come almost entirely from Texas statutes approved by the legislature, not activist rules imposed by judges. This Article explores Texas's reputation as a tough-on-crime state and the seeming inconsistency between Texas being tough on …

The Conscience And Culture Of Prosecution: An Introduction, Anna Offit

Faculty Publications

Introduction to a symposium issue: "an interdisciplinary conversation between a filmmaker, former prosecutors, law professors, defense attorneys, and graduate students. Several questions prompted this gathering: First, do prosecutors have a distinctive legal 'culture'? What are the shared assumptions that define it? And how do those assumptions synchronize or conflict with the behaviors we deem ethical?"

Reliability, That Should Be The Question: The Constitutionality Of Using Uncounseled Tribal Court Convictions In Subsequent Federal Trials After Ant, Cavanaugh, And Shavanaux, Samuel D. Newton

American Indian Law Review

No abstract provided.

Don’T Blame Crawford Or Bryant: The Confrontation Clause Mess Is All Davis’S Fault, Deborah Ahrens, John Mitchell

Faculty Articles

In Michigan v. Bryant, a dying victim lying in a parking lot provided responding officers with the identity of the man who shot him. In determining whether the subsequent use of the deceased declarant’s statement at trial violated the Confrontation Clause, the Bryant Court applied the testimonial versus nontestimonial analysis established in the Court’s previous decision, Crawford v. Washington. Holding that testimonial hearsay covered statements involving past events, while nontestimonial statements were directed at an “ongoing emergency,” the Bryant Court applied a multi-factor, totality of the circumstances analysis and found that the deceased declarant’s identification had been directed …

A Fresh Cut In An Old Wound–A Critical Analysis Of The Trayvon Martin Killing: The Public Outcry, The Prosecutors’ Discretion, And The Stand Your Ground Law, Tamara F. Lawson

Articles

If the Trayvon Martin/George Zimmerman case is to have value beyond its immediate facts, it is important to consider the case through a broad lens that encompasses law, politics, and culture and the relevant intersectionality of each. This essay gives a contextualized historical perspective with which to view the Black community’s reaction to the initial lack of criminal charges in the case. It explains why the circumstances surrounding Trayvon’s death were experienced as a fresh cut in an old, but deep, collective wound, for many Blacks. It addresses the exacerbation African Americans felt regarding law enforcement’s perceived indifference towards Trayvon, …

A Crisis In Federal Habeas Law, Eve Brensike Primus

Reviews

Everyone recognizes that federal habeas doctrine is a mess. Despite repeated calls for reform, federal judges continue to waste countless hours reviewing habeas petitions only to dismiss the vast majority of them on procedural grounds. Broad change is necessary, but to be effective, such change must be animated by an overarching theory that explains when federal courts should exercise habeas jurisdiction. In Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ, Professors Nancy King and Joseph Hoffmann offer such a theory. Drawing on history, current practice, and empirical data, King and Hoffmann find unifying themes …

Introduction: Benefits Of Private Enforcement: Empirical Background, Robert H. Lande

All Faculty Scholarship

This short piece takes a first step toward providing the empirical bases for an assessment of the benefits of private enforcement. It presents evidence showing that private enforcement of the antitrust laws is serving its intended purposes and is in the public interest. Private enforcement helps compensate victimized consumers, and it also helps deter anticompetitive conduct. This piece demonstrates this by briefly summarizing a more detailed analysis of forty of the largest recent successful private antitrust cases.

To analyze these cases' compensation effects this presents, inter alia, the amount of money each action recovered, what proportion of the money was …

"U" Stands For Underutilization: The U Visa's Vulnerability For Underuse In The Sex Trafficking Context, Erin Bistricer

Cardozo Journal of Equal Rights & Social Justice

The U Visa, established in 2000 under the Violence Against Women Act (VAWA) reauthorization, was designed to provide legal status to victims of certain crimes, including sex trafficking, without fear of deportation. However, its implementation has been hindered by significant challenges, including delayed regulations, confusion among applicants, and reliance on law enforcement cooperation, which can be a barrier for traumatized victims. While the U Visa offers more flexibility than the T Visa by covering a broader range of crimes and requiring a lower standard of proof, its effectiveness is limited by factors such as annual caps, inadequate state anti-trafficking laws, …

Convenient Scapegoats: Juvenile Confessions And Exculpatory Dna In Cook County, Illinois, Joshua A. Tepfer, Craig M. Cooley, Tara Thompson

Cardozo Journal of Equal Rights & Social Justice

The article examines the pervasive issue of false confessions, particularly among juveniles and mentally challenged individuals, which often lead to wrongful convictions. It underscores the critical role of DNA evidence in exonerating the innocent and highlights the need for systemic reforms in police interrogation practices and prosecutorial oversight. The analysis emphasizes the importance of transparency in evidence handling and the implementation of policies to prevent future injustices.

Predators In Paradise: Puerto Rico's Recent Sex Offender Problems And The Federal Government's Ill Suited Solutions, Adan Soltren

Cardozo Journal of Equal Rights & Social Justice

The note examines the challenges and implications of implementing the Adam Walsh Act (2006) in Puerto Rico, particularly its Sex Offender Registration and Notification Act (SORNA) provisions. It highlights Puerto Rico's noncompliance with SORNA due to its less stringent sex offender laws and the economic and policy concerns surrounding full adoption. The analysis critiques SORNA's one-size-fits-all approach, especially its treatment of juvenile offenders, and proposes tailored solutions for Puerto Rico to address these issues while maintaining public safety.

Cartoons Aren't Real People, Too: Does The Regulation Of Virtual Child Pornography Violate The First Amendment And Criminalize Subversive Thought?, Keisha April

Cardozo Journal of Equal Rights & Social Justice

The note argues that the government's regulation of virtual child pornography, particularly under the Obscene Visual Representations of the Sexual Abuse of Children (OVR) provision of the PROTECT Act, raises significant First Amendment concerns. While the provision aims to protect children, it criminalizes depictions that do not involve real children, undermining free expression. The analysis critiques the OVR provision's overbreadth and vagueness, asserting that it chills artistic expression and fails to serve a compelling government interest. The note advocates for narrowing the provision to focus on actual harm rather than fictional depictions.

Criminal Courts And Procedure, Stephen C. Thaman

All Faculty Scholarship

This chapter provides both a historical and modern perspective on criminal procedure around the world.

Rethinking Voir Dire, Eric R. Carpenter

Faculty Publications

No abstract provided.

Aedpa Mea Culpa, Larry Yackle

Faculty Scholarship

In this essay, the author contends that the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA] has frustrated both the enforcement of federal rights and legitimate state interests. He lays most of the blame on the Supreme Court's methodology for construing AEDPA's provisions. The Court insists that poorly conceived and drafted provisions must be taken literally, whatever the consequences, and that every provision must be read to change habeas corpus law in some way. This approach has produced unfair, wasteful, and even bizarre results that might have been avoided if the Court had assessed AEDPA more realistically.

Rule 3.8, The Jencks Act, And How The Aba Created A Conflict Between Ethics And The Law On Prosecutorial Disclosure, Kirsten M. Schimpff

American University Law Review

No abstract provided.

The First Amendment’S Borders: The Place Of Holder V. Humanitarian Law Project In First Amendment Doctrine, David Cole

Georgetown Law Faculty Publications and Other Works

In Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian Law Project …

Where Liberty Lies: Civil Society And Individual Rights After 9/11, David Cole

Georgetown Law Faculty Publications and Other Works

Had someone told you, on September 11, 2001, that the United States would not be able to do whatever it wanted in response to the terrorist attacks of that day, you might well have questioned their sanity. The United States was the most powerful country in the world, and had the world’s sympathy in the immediate aftermath of the attacks. Who would stop it? Al Qaeda had few friends beyond the Taliban. As a historical matter, Congress and the courts had virtually always deferred to the executive in such times of crisis. And the American polity was unlikely to object …

Could Specialized Criminal Courts Help Contain The Crises Of Overcriminalization And Overincarceration?, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

In contrast to the existing scholarly commentary on specialized criminal courts, which is largely trapped in the mode of advocacy—alternately celebratory or disparaging, and insufficiently attentive to the remarkable variation between different specialized criminal courts—this article introduces an analytic framework and critical theoretical account of four contending criminal law reformist models at work in specialized criminal courts. These four criminal law reformist models include:

(1) a therapeutic jurisprudence model,

(2) a judicial monitoring model,

(3) an order maintenance model, and

(4) a decarceration model.

Based on a multi-method approach consisting of site visits, and an analysis of archived interviews, the …