Criminal Procedure Commons^™

Come Back To The Boat, Justice Breyer!, Richard D. Friedman

Michigan Law Review First Impressions

I want to get Justice Breyer back on the right side of Confrontation Clause issues. In 1999, in Lilly v. Virginia, he wrote a farsighted concurrence, making him one of the first members of the Supreme Court to recognize the inadequacy of the then-prevailing doctrine of the Confrontation Clause. That doctrine, first announced in Ohio v. Roberts, was dependent on hearsay law and made judicial assessments of reliability determinative. In Crawford v. Washington, the Court was presented with an alternative approach, making the key inquiry whether the statement in question was testimonial in nature. During the oral …

Death, Desuetude, And Original Meaning, John F. Stinneford

UF Law Faculty Publications

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to …

What Is Criminal Restitution?, Cortney E. Lollar

Law Faculty Scholarly Articles

A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore moves far beyond its traditional purpose of disgorging a defendant's ill-gotten gains. Instead, restitution has become a mechanism of imposing additional punishment. Courts, however, have failed to recognize the punitive nature of restitution and thus enter restitution orders without regard to the constitutional protections that normally attach to criminal proceedings. This Article deploys a novel …

Criminal Law And Procedure, Aaron J. Campbell

University of Richmond Law Review

This article aims to provide a succinct review of noteworthy cases in the areas of criminal law and procedure that the Supreme Court of Virginia and the Court of Appeals of Virginia decided this past year. Instead of covering every ruling or procedural point in a particular case, this article focuses on the "take- away" of the holdings with the most precedential value. This article also summarizes significant changes to criminal law and procedure enacted by the 2014 Virginia General Assembly.

Virginia's Gap Between Punishment And Culpability: Re-Examining Self-Defense Law And Battered Women's Syndrome, Kendall Hamilton

University of Richmond Law Review

No abstract provided.

Speedy Trial As A Viable Challenge To Chronic Underfunding In Indigent-Defense Systems, Emily Rose

Michigan Law Review

Across the country, underresourced indigent-defense systems create delays in taking cases to trial at both the state and federal levels. Attempts to increase funding for indigent defense by bringing ineffective assistance of counsel claims have been thwarted by high procedural and substantive hurdles, and consequently these attempts have failed to bring significant change. This Note argues that, because ineffective assistance of counsel litigation is most likely a dead end for system-wide reform, indigent defenders should challenge the constitutionality of underfunding based on the Sixth Amendment guarantee of speedy trial. Existing speedy trial jurisprudence suggests that the overworking and furloughing of …

Ryan V. Gonzalez And The Potential Elimination Of The Ineffective Assistance Of Counsel Post Conviction Failsafe, Kathleen Carlson

Florida Law Review

Recently, the United States Supreme Court addressed in Ryan v. Gonzales “whether the incompetence of a state prisoner requires suspension of the prisoner’s federal habeas corpus proceedings.” In a unanimous decision, the Court held that “the Courts of Appeals for the Ninth and Sixth Circuits both erred in holding that district courts must stay federal habeas proceedings when petitioners are adjudged incompetent.” The decision leaves unanswered questions with regard to a petitioner’s ability to protect himself from ineffective or incompetent counsel both before and during the habeas proceeding.

The Extradition Proceedings Against General Augusto Pinochet: Is Justice Being Met Under International Law?, Anita C. Johnson

Georgia Journal of International & Comparative Law

No abstract provided.

The Case Of Wang Zong Xiao V. Reno: The International Implications Of Prosecutorial Misconduct, William W. Tanner

Georgia Journal of International & Comparative Law

No abstract provided.

Refusal To Extradite: An Examination Of Canada's Indictment Of The American Legal System, Jami Leeson

Georgia Journal of International & Comparative Law

No abstract provided.

Brown V. Plata: Renewing The Call To End Mandatory Minimum Sentencing, Steven Nauman

Florida Law Review

After more than twenty years of litigation, the United States Supreme Court finally determined whether California’s overcrowded prison system created a constitutional violation in Brown v. Plata. With prisons and jails across the country operating at well over 100% capacity, the Court concluded what advocates had been screaming for over a decade: prison overcrowding cannot be tolerated, and the only remedy is to reduce prison populations. What the Court failed to resolve, however, was what the primary cause of prison overcrowding is and how states and the federal government are supposed to comply with capacity expectations amid concerns for …

Vicarious Aggravators, Sam Kamin, Justin Marceau

Florida Law Review

In Gregg v. Georgia, the Supreme Court held that the death penalty was constitutional so long as it provided a non-arbitrary statutory mechanism for determining who are the worst of the worst, and therefore, deserving of the death penalty. As a general matter, this process of narrowing the class of death eligible offenders is done through the codification of aggravating factors. If the jury finds beyond a reasonable doubt that one or more aggravating factors exists, then a defendant convicted of murder is eligible for the ultimate sentence. There is, however, a critical, unanswered, and under-theorized issue raised by …

School Shootings And Principals' Perception Of Armed Personnel In An Education Setting, Richard Reyes

Seton Hall University Dissertations and Theses (ETDs)

The purpose of this study was to explore the dilemma principals have in determining the best approach to provide safe environment for their students and faculty, while at the same time creating an environment that is conducive to education.

The study looked at an urban school district with a marginalized community with low socioeconomic status as identified by the District Factor Group A. Twelve school principals were interviewed to gather information of their perceptions in relation to having armed personnel in their schools.

The literature on school shootings and armed personnel in schools was reviewed. The literature consisted of peer-reviewed …

Crime Control, Due Process, & Evidentiary Exclusion: When Exceptions Become The Rule, Elizabeth H. Kaylor

Proceedings of the New York State Communication Association

This paper uses the dichotomy between Herbert Packer’s (1968) two models of criminal justice advocacy – “crime control” and “due process” – as a rhetorical paradigm for understanding policy debate about the exclusion of relevant evidence at trial. Understanding the opposition between crime control and due process advocates as a rhetorical controversy, in which commonly-used ideographs camouflage dramatically different constructions of the concepts at stake, helps to illuminate the way each side mobilizes public support for their narrative of doing . While both the exclusionary rule (which prohibits the use of illegally-obtained evidence in criminal cases) and the “fruit of …

International Extradition Of Mexican Narcotics Traffickers: Prospects And Pitfalls For The New Millennium, Rishi Hingoraney

Georgia Journal of International & Comparative Law

No abstract provided.

Germany V. United States In The International Court Of Justice: An International Battle Over The Interpretation Of Article Thirty-Six Of The Vienna Convention On Consular Relations And Provisional Measures Orders, Stephanie Baker

Georgia Journal of International & Comparative Law

No abstract provided.

The Confusing Standards For Discretionary Review In Washington And A Proposed Framework For Clarity, Judge Stephen Dwyer

Seattle University Law Review

It has now been more than thirty-five years since the Washington Rules of Appellate Procedure (RAP) became effective in 1976 and replaced all prior rules governing appellate procedure. One significant change that those rules made was to clearly describe and delineate a procedural mechanism for seeking interlocutory review of trial court decisions. The ultimate effect on practitioners is both obvious and unavoidable. Many lawyers, rather than stake out a clear position regarding the applicability of the various considerations governing discretionary review, simply argue that any and every consideration that is even arguably applicable is satisfied by the trial court’s determination. …

Comparative Analysis Of Democracy And Sentencing In The United States As A Model For Reform In Iraq, Sarah E. Kelman

Georgia Journal of International & Comparative Law

No abstract provided.

Summary Of Watson V. State, 130 Nev. Adv. Op. 76, Lindsay Liddell

Nevada Supreme Court Summaries

The Court determined that (1) a Batson objection to peremptory strikes should be analyzed with reference to the amount of allegedly targeted-group members within the venire; and (2) that a jury instruction is not issued in error when there was a reasonable likelihood that the jury did not understand the instruction incorrectly, even if the rule does not comprehensively explain the underlying doctrine, so long as it accurately states the law.

Femicide In Bolivia After Law 348, Adán Martínez

Independent Study Project (ISP) Collection

This project explores the concept of femicide from a unique perspective, by analyzing the effect that Law #348: The Internal Law to Guarantee Women a Life Without Violence after a year that it passed during the Morales' administration. I examine two crucial questions to this study: 1) How do we explain the paradox that although this law has passed, today we see an increase in the number of femicides in Bolivia? 2) What are the obstacles that prevent that application of law 348 3) What can we do to put a stop to femicides? I demonstrate that several factors like …

Institutional Sexual Assault And The Rights/Trust Dilemma, Francine Banner

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Miller'S Promise: Re-Evaluating Extreme Criminal Sentences For Children, Nick Straley

Washington Law Review

Scientific, legal, and societal notions about youth have come together to reaffirm an age-old concept—children are different and they change as they grow older. In recent decisions, the United States Supreme Court has required courts and legislatures to take a new look at extreme criminal sentences imposed upon children. Life without parole sentences and decades-long, determinate sentences are constitutionally suspect when applied to children because they fail to adequately account for the dynamism of youth. Miller v. Alabama and Graham v. Florida announced two important principles: (1) that an extreme sentence can only be imposed upon a child following an …

Why Full Implementation Is Long Overdue, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

In 1980, the American Bar Association (ABA) promulgated a far-reaching comprehensive body of Juvenile Justice Standards, thereby providing a blueprint for the reform of a system that had serious deficiencies. Developed in partnership with the Institute of Judicial Administration (IJA) at New York University, the standards address the entire juvenile justice continuum, from police handling and intake to adjudication, disposition, juvenile corrections, and ancillary functions. Approximately 300 professionals collaborated for a decade to produce the 23 volumes approved by the ABA House of Delegates.

To this day, the standards remain relevant and reformist. Several have been implemented in whole or …

Sweeping Down The Plain: A Modern Rule For Direct Review In Oklahoma Criminal Appeals, Bryan Lester Dupler

The Journal of Appellate Practice and Process

No abstract provided.

The Demographic Dilemma In Death Qualification Of Capital Jurors, J. Thomas Sullivan

Law Faculty Scholarship

No abstract provided.

Proportionality, Discretion, And The Roles Of Judges And Prosecutors At Sentencing, Palma Paciocco

Articles & Book Chapters

The Supreme Court of Canada recently held that prosecutors are not constitutionally obligated to consider the principle of proportionality when exercising their discretion in a manner that narrows the range of available sentences: since only judges are responsible for sentencing, they alone are constitutionally required to ensure proportionality. When mandatory minimum sentences apply, however, judges have limited sentencing discretion and may be unable to achieve proportionality. If the Court takes the principle of proportionality seriously, and if it insists that only judges are constitutionally bound to enforce that principle, it must therefore create new tools whereby judges can avoid imposing …

The Not So Speedy Trial Act, Shon Hopwood

Washington Law Review

The Speedy Trial Act (STA) of 1974 occupies a peculiar place in the criminal justice system. Very few pieces of legislation can lay claim to protecting both the rights of criminal defendants and the public’s significant interest in timely justice, while reducing the cost of judicial administration. The STA formerly accomplished these lofty aims by reducing pretrial delays. But for the past two decades legal scholars have ignored the STA, and both prosecutors and defense attorneys have subverted the STA’s goals by routinely moving for continuances. And although the Act categorically applies in every federal criminal case, it has been …

Foul Play: Tennessee's Unequal Application Of Its Jock Tax Against Professional Athletes, Kirk Berger

Cardozo Public Law, Policy & Ethics Journal

The Framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus escape political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be …

Exodus: Structuring Redemption Of Captives, Rivka Weill

Cardozo Law Review

The question of how to react to ransom demands in kidnap situations is ancient and persistent. It was asked as far back as Biblical times, and yet modern states have still not found answers. In terrorist kidnapping scenarios, the private victims, including the families, are often used as leverage to pressure the authorities, with the anticipation that the combination of public sympathy and private lobbying will result in excessive concessions. In the kidnap game, the victim's family is a single-game player and thus operates under a completely different set of considerations than the repeat player: the state. The question is …

Auctioning Class Settlements, Jay Tidmarsh

Journal Articles

Although they promise better deterrence at a lower cost, class actions are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class (the class representative and class counsel) advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class-action reform proposals. This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea …