Criminal Procedure Commons^™

The Guiding Hand Of Counsel: Effective Representation For Indigent Defendants In The Cordele Judicial Circuit, Lesley Rowe

Mercer Law Review

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law.... He lacks both the skill and knowledge adequately to prepare his defense, even though he had a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If …

Beyond The Right To Counsel: Increasing Notice Of Collateral Consequences, Brian M. Murray

University of Richmond Law Review

This article responds to these questions by focusing on the primary roots of this justice issue, namely the prevalence of guiltypleas and the continued efforts of legislatures to increase the life- long price of a conviction. Part I begins with a discussion of these practical realities within the criminal justice system. Part II then examines the law of guilty pleas under the Fifth Amendment, including constitutional standards for valid pleas, and how current jurisprudence fails to account for the collateral consequences mentioned in Part I. Part II also discusses the right to effective assistance of counsel under the Sixth Amendment, …

A Legal And Policy Argument For Bail Denial And Preventative Treatment For Batterers In The United States, Dawn Beichner, Robbin Ogle, Anne Garner, Daniel Anderson

Women's and Gender Studies Program: Faculty Publications

Historically, battering has been a culturally and legally acceptable form of social control within the United States. This article provides an examination of how this legacy of social acceptance has influenced the development of laws and social policies related to battering. We provide a critique of our current approach to battering and our historical reliance on private or social helping agencies intended to hide and protect victims. We call for a transformation of our current policies that provides for the removal of the batterer—not the victim and her children—from the family home through a process of bail denial and preventative …

Proving Personal Use: The Admissibility Of Evidence Negating Intent To Distribute Marijuana, Stephen Mayer

Michigan Law Review

Against the backdrop of escalating state efforts to decriminalize marijuana, U.S. Attorneys’ Offices continue to bring drug-trafficking prosecutions against defendants carrying small amounts of marijuana that are permitted under state law. Federal district courts have repeatedly barred defendants from introducing evidence that they possessed this marijuana for their own personal use. This Note argues that district courts should not exclude three increasingly common kinds of “personal use evidence” under Federal Rules of Evidence 402 and 403 when that evidence is offered to negate intent to distribute marijuana. Three types of personal use evidence are discussed in this Note: (1) a …

Do Irish Courts And The European Court Of Human Rights Have Achieved The Correct Balance Between Protection Of The Rights Of Individual Prisoners And Pragmatic Concerns Regarding The Proper Functioning Of The Prison System., Adrian Berski

Reports

Nowadays it is very hard to find the relevant balance between decisions of the Irish Courts and European Court of Human Rights (ECtHR), regarding the rights of individual prisoners and the proper functioning of the prison system. On one side, the main function of the courts is resolution dispute, apply the relative law and most importantly: protecting the law and human rights. On the other hand, court decisions have to be based on the relevant prison and justice systems that applies to each particular country.

It is worth taking into consideration that decisions made by the European Court of Human …

Confronting Cops In Immigration Court, Mary Holper

William & Mary Bill of Rights Journal

Part I of the Article outlines the police report problem by discussing the four situations in which police reports are used in immigration court, why police reports are unreliable, and the scope of the problem. Part II discusses criminal law’s treatment of police reports, focusing on the Confrontation Clause of the Sixth Amendment, which provides the constitutional justification for excluding police reports in criminal cases. Part III discusses the use of hearsay evidence in immigration cases, where hearsay is allowed due to the characterization of removal proceedings as civil, not criminal. While there has been a trend to reject unreliable …

Burris V. State: Suggestions For The Continued Development Of The Rule For Admitting The Testimony Of Gang Experts, Michael Jacko

Maryland Law Review Online

No abstract provided.

Following Orders: Campbell V. United States, The Waiver Of Appellate Rights, And The Duty Of Counsel, Jacob Szewczyk

Catholic University Law Review

In the 1984 case of Strickland v. Washington, the Supreme Court announced a two-pronged test to analyze whether a criminal defendant has received ineffective assistance of counsel. Since the rule was announced, the Court has expanded Strickland’s scope to apply to analyze counsel’s review at different stages of the criminal proceeding. This Comment addresses one issue that has remained unanswered by the Supreme Court: whether counsel’s failure to file a notice of appeal, after a defendant has waived his right to appeal through a plea bargain, constitutes ineffective assistance of counsel. This Comment discusses the circuit split that …

Residual Impact: Resentencing Implications Of Johnson's Potential Ruling On Acca's Constitutionality, Leah Litman

Articles

In January 2015, the Supreme Court directed the parties to brief and argue an additional question in Johnson v. United States: “Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague.” The order represents an unusual move because the defendant had not raised the vagueness issue and the Court issued the order after it had already heard argument on the question raised in the petition for certiorari. Commentators therefore view the order as a signal that the Court will likely invalidate the residual clause. This decision will have been several years …

O'Connor's Firsts, Phyllis L. Crocker

Akron Law Review

Chief Justice Maureen O’Connor will make her mark on the Ohio court system and on the laws of Ohio in many ways. She made two significant marks her first day as Chief Justice: she was the first woman elected to the position of Chief Justice in Ohio and in her swearing-in speech she called for review of the death penalty in Ohio.1 Both were meaningful to me personally and as a citizen of Ohio. I appreciated her acknowledging her place in history and her willingness to tackle, right from the beginning of her tenure, the important topic of the death …

The Line Holds, But Death May Matter: The Supreme Court's Criminal Procedure Decisions Of The 2001 Term, William Hellerstein

Touro Law Review

No abstract provided.

Trending @ Rwu Law: Professor Niki Kuckes's Post: Litigation Academy Returns, Niki Kuckes

Law School Blogs

No abstract provided.

Newsroom: Waters '98 Testifies For Innocence Project, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Patching Old Wineskins: Heightened Deference Towards Saiban-In Findings Of Fact On Koso Appeals Is Not Enough, Caleb Jon F. Vandenbos

Washington International Law Journal

The successful introduction of the saiban-in seido—the Japanese lay assessor system—was a tremendous step towards creating meaningful exchange between the public and the judiciary and democratizing the criminal justice system in Japan. To preserve the quality of this exchange, judges must conscientiously solicit and respect lay assessor input during deliberations, and saiban-in decisions must retain their force on appeal. Under current appellate procedure, however, saiban-in findings of fact may be replaced on koso appeal. Koso appeals threaten to eviscerate lay participants’ contributions in the individual case being reviewed and, in the long term, will discourage judges from taking lay …

Gay Panic, Gay Victims, And The Case For Gay Shield Laws, J. Kelly Strader, Molly Selvin, Lindsey Hay

Cardozo Law Review

In a highly publicized "gay panic" case, Brandon McInerney shot and killed Larry King in their middle school classroom. King was a self-identified gay student who sometimes wore jewelry and eye makeup to school and, according to those who knew him, was possibly transgender. Tried as an adult for first-degree murder, McInerney asserted a heat of passion defense based upon King's alleged sexual advances. The jury deadlocked, with a majority accepting McInerney's defense.

Drawing largely upon qualitative empirical research, this Article uses the Larry King murder case as a prism though which to view the doctrinal, theoretical, and policy bases …

The Jury As Democracy, Jenny E. Carroll

Faculty Scholarship

Almost from the moment the law is set to paper, it is shaped and refined through acts of interpretation and discretion. Police and prosecutors choose which cases to investigate, which to charge and how to charge them. Judges make decisions every day that affect the outcome of cases. These acts of interpretation and discretion are driven by the perspectives of those empowered to make them. All too frequently, they reinforce existing power dynamics. But there are other realms of discretion in criminal law. Whether seeking to apply a legal standard as instructed or engaging in an act of nullification, ordinary …

Midnight In The Garden Of Ne Bis In Idem: The New Urgency For An International Enforcement Mechanism, Thomas J. Bussen

Cardozo Journal of International and Comparative Law

The article examines the challenges posed by the global proliferation of antibribery laws, particularly the Foreign Corrupt Practices Act (FCPA) and similar international laws, which have led to overlapping prosecutions of multinational companies (MNCs) for the same offenses. This phenomenon, termed "da mihi quoque" or "me too" prosecutions, results in significant financial and reputational costs for companies. The article argues that while these laws aim to combat corruption, their broad jurisdictional reach and uneven enforcement may inadvertently harm economic opportunities and governance systems in developing countries. It advocates for a more coordinated and balanced approach to enforcement to address these …

Collateral Damage: A Guide To Criminal Appellate, Postconviction, And Habeas Corpus Litigation In Wisconsin, Matthew M. Fernholz

Marquette Law Review

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A Contagion Of Fear: Post-9/11 Alarm Expands Executive Branch Authority And Sanctions Prosecutorial Exploitation Of America's Privacy, Carol M. Bast, Cynthia A. Brown

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

An Analysis Of The Legal And Practical Implications Of The Potential Increased Participation In Jury Service By Racial Minorities In The U.S. Criminal Justice System, Brian Keith Leonard

West Virginia Law Review

No abstract provided.

Group Agency And Legal Proof; Or, Why The Jury Is An “It”, Michael S. Pardo

William & Mary Law Review

Jurors decide whether certain facts have been proven according to the applicable legal standards. What is the relationship between the jury, as a collective decision-making body, on one hand, and the views of individual jurors, on the other? Is the jury merely the sum total of the individual views of its members? Or do juries possess properties and characteristics of agency (for example, beliefs, knowledge, preferences, intentions, plans, and actions) that are in some sense distinct from those of its members? This Article explores these questions and defends a conception of the jury as a group agent with agency that …

Prosecuting Generals For War Crimes: The Shifting Sands Of Accomplice Liability In International Criminal Law, Mark A. Summers

Cardozo Journal of International and Comparative Law

The article examines the evolving concept of "specific direction" in accomplice liability for war crimes under international law, highlighting the conflicting approaches of the ICTY and ICC. It advocates for the ICC to adopt a clear, intent-based standard to ensure accountability and consistency, avoiding the ambiguities of "specific direction."

Should The American Grand Jury Survive Ferguson, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

The grand jurors deliberated in secret, as the masses demanded the indictment of the would-be defendants. Ultimately, the grand jury would refuse to indict, enraging the many who believed justice had been denied

Symposium: Sounding The Alarm On Mass Incarceration: Moving Beyond The Problem And Toward Solutions, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

A Tale Of Three Prejudices: Restructuring The "Martinez Gateway", Michael Ellis

Washington Law Review

Martinez v. Ryan opened a door previously closed to federal habeas petitioners. In the past, where attorney negligence or a pro se defendant’s lack of legal knowledge caused ineffective-assistance-of-trial-counsel claims to be procedurally defaulted, those claims were likely lost forever. Now, following Martinez, petitioners get a second chance should they satisfy the Supreme Court’s four-pronged test. The Martinez test, however, is not a simple one. This Comment addresses some problems concerning the four-pronged test, including multiple and conflicting standards for the same element, tensions between Martinez and the underlying Strickland v. Washington ineffective-assistance-of-counsel standard, and confusion where the same …

Centralized Prosecution: Cross-Designated Prosecutors And An Unconstitutional Concentration Of Power, Haley White

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

What's Law Got To Do With It? Plea Bargaining Reform After Lafler And Frye, Cynthia Alkon

Faculty Scholarship

This symposium article responds to the question, what's left of the law in the wake of ADR? The article addresses this question in the context of the criminal justice system in the United States. As with civil cases, few criminal cases go to trial. Negotiated agreements through plea bargaining have been the predominate form of case resolution since at least the mid-twentieth century. Plea bargaining, as with other forms of alternative dispute resolution, is an informal process that operates largely outside the formal legal system. Plea bargains are rarely negotiated on the record in open court. Instead, they are usually …

The Admissibility Of Trueallele: A Computerized Dna Interpretation System, Katherine L. Moss

Washington and Lee Law Review

No abstract provided.

Experimental Execution, Seema K. Shah

Washington Law Review

On July 23, 2014, an execution in Arizona lasted nearly two hours, with the inmate struggling to breathe and gasping over 600 times, according to a local reporter witnessing the execution. This was the third example of a botched execution in seven months. The Supreme Court last evaluated the constitutionality of execution by lethal injection in 2008, but did not provide a clear standard for evaluating risks. Since that time, the lethal injection landscape has transformed. States are using entirely new drugs and drug combinations, and sometimes obtain these drugs from questionable sources, making it hard to predict what will …

The Role Of Race, Poverty, Intellectual Disability, And Mental Illness In The Decline Of The Death Penalty, Stephen B. Bright

University of Richmond Law Review

No abstract provided.