Criminal Procedure Commons^™

Summary Of Barral V. State, 131 Nev. Adv. Op. 52 (July 23, 2015), Aleem Dhalla

Nevada Supreme Court Summaries

Defendant Dustin James Barral was convicted of two counts of sexual assault with a minor under 14 years of age by a jury. The Supreme Court of Nevada held that the trial court committed a structural error by failing to administer an oath or affrimation to the jury panel prior to commencing voir dire. This error required reversal and a new trial.

Beware Of Government Agents Bearing Trojan Horses, Brian L. Owsley

Akron Law Review

This Article addresses the use of Trojan devices by the Government to legally search computers potentially around the world. Although the Government does seek judicial authorization for these techniques based on a search warrant, there are still concerns about whether the applications meet constitutional standards as well as Rule 41 of the Federal Rules of Criminal Procedure (“Rule 41”). The use of these Trojan devices has not been addressed in current scholarship meaningfully; therefore, this Article focuses on when and how authorization of search warrant applications for these techniques are appropriate. Part II addresses the implications of the standards enunciated …

Don’T Forget About The Jury: Advice For Civil Litigators And Criminal Prosecutors On Differences In State And Federal Courts In New York, Ariel Atlas

Cornell Law Library Prize for Exemplary Student Research Papers

In civil cases, forum selection has become an integral part of litigation strategy. Plaintiffs have the initial choice of where to file a complaint, and thus where to begin a lawsuit. Defendants have the power to remove cases, under circumstances prescribed by statute, from state court to federal court. Many factors enter into the decision of where to file a complaint or whether to remove a case including convenience, applicable law, and suspected biases. But what about the jury? Should a plaintiff consider characteristics of the jury when deciding where to file a complaint or a defendant in a civil …

Appellate Review Of Unpreserved Questions In Criminal Cases: An Attempt To Define The Interest Of Justice, Larry Cunningham

The Journal of Appellate Practice and Process

No abstract provided.

Edmonson V. Leesville Concrete Company: Pre-Empting Prejudice, Andrea K. Huston

Akron Law Review

In Edmonson v. Leesville Concrete Co., the United States Supreme Court decided the issue of whether parties in a civil case may use their peremptory challenges to exclude black venirepersons from the jury.

This Note will discuss the various limitations that courts have placed on the use of peremptory challenges, and the position of the Supreme Court. This Note will also discuss the Court's expansion of the state action doctrine, and the impact Edmonson will have on future cases.

Newsroom: Horwitz On Ri Probation Reform, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Ohio's Administrative License Suspension: A Double Jeopardy And Due Process Analysis, Max Kravitz

Akron Law Review

This Article examines whether Ohio's imposition of an administrative license suspension "ALS" immediately upon arrest for operating a motor vehicle under the influence of alcohol "OMVI" bars a subsequent prosecution for the substantive offense.' Traditionally, administrative license suspensions have been considered civil, administrative and primarily remedial. However, increasingly punitive amendments to Ohio's ALS statutory scheme raise the substantial question of whether an ALS is truly remedial, or whether the imposition of an ALS constitutes punishment triggering double jeopardy and due process protection.

"A Thug In Prison Cannot Shoot Your Sister": Ohio Appears Ready To Resurrect The Habitual Criminal Statute - Will It Withstand An Eighth Amendment Challenge?, Thomas R. Goots

Akron Law Review

The State of Ohio appears ready to pass a habitual offender statute. This Comment will take a closer look at habitual offender statutes in general and Ohio's past attempts at habitual offender statutes. The Comment will focus on the possible Eighth Amendment challenge to the proposed Ohio statute, by examining a hypothetical defendant.

Sentence Entrapment And Manipulation: Government Manipulation Of The Federal Sentencing Guidelines, Todd E. Witten

Akron Law Review

This Comment discusses the theory of sentence entrapment and the application of the defense. Part II provides the reader with a general overview of the events leading up to the adoption of the guidelines and the manner in which they operate.10 Part III discusses the effect of the guidelines' quantity-based approach to criminal investigations. Part IV describes the role of the traditional "entrapment" defense, and Part V details the development of the "sentence entrapment" defense. Part VI analyzes the viability of the sentence entrapment defense, suggesting possible successful methods for raising the defense, and discusses the harms caused by the …

Neo-Federalism, Popular Sovereignity, And The Criminal Law, Terrance M. Messonnier

Akron Law Review

The first area is the substantive criminal law, especially at the federal level. In the following pages, this Article will discuss, from a Neo-Federalist perspective, the wide variety of laws found mostly in Title 18 of the United States Code that form our federal criminal law. This Article will suggest that there are both constitutional and pragmatic needs to reexamine what behavior should be punished on a federal level.

The second area is the law regarding criminal procedures. This Article will suggest, from the perspective of Popular Sovereignty, that the current trend to jealously guard jurisdictional prerogatives is not constitutionally …

The Shift Of The Balance Of Advantage In Criminal Litigation: The Case Of Mr. Simpson, David Robinson Jr.

Akron Law Review

The intense public interest in the extraordinary trial and acquittal of Mr. O.J. Simpson provides an appropriate occasion to look at the criminal justice system more generally, to note where we have been in the balance of advantage between prosecution and defense, where we are now, and where, perhaps, we should be.

Mental Health Courts: Bridging Two Worlds, Honorable Matthew J. D’Emic

Touro Law Review

No abstract provided.

Bray V. Russell: The Constitutionality Of The "Bad Time" Statute, Erin Kae Cardinal

Akron Law Review

This Note analyzes the Court’s decision in Bray. Part II presents an overview of sentencing systems in the United States, the bad time penalty, and a brief background of the doctrine of separation of powers. Part III presents the facts, procedural history, and holding of Bray. Part IV analyzes the Court’s holding pursuant to the Due Process Clause rather than the doctrine of separation of powers. This Note concludes that although the bad time statute is unconstitutional as a violation of the doctrine of separation of powers, the court could have alternatively decided that the bad time statute also violates …

Being The Government Means (Almost) Never Having To Say You're Sorry: The Sam Sheppard Case And The Meaning Of Wrongful Imprisonment, Jonathan L. Entin

Akron Law Review

Sam Sheppard was at the center of the highest profile crime in Ohio history. It contained “[m]urder and mystery, society, sex and suspense.” In the early morning hours of July 4, 1954, Marilyn Sheppard, four months pregnant with her second child, was beaten to death in her bed in the Cleveland suburb of Bay Village. The authorities quickly focused their suspicion on her husband, Sam, a prominent osteopathic physician, and charged him with first-degree murder. He was convicted of second-degree murder and sentenced to life imprisonment. The state courts affirmed, and the Supreme Court denied direct review. Then in 1966, …

Sell-Ing Your Soul To The Courts: Forced Medication To Achieve Trial Competency In The Wake Of Sell V. United States, Elizabeth G. Schultz

Akron Law Review

Sell involves issues of individual liberty that reach beyond the sphere of the mentally ill. Although the Court ultimately decided in Dr. Sell’s favor by applying the facts of the case to a heightened scrutiny test, the Court missed an opportunity to decide this case on broader, more protective constitutional grounds for other mentally ill defendants.

This Note considers the effect that the decision in Sell v. United States has on mentally ill criminal defendants in both procedural and substantive arenas. Section II gives a brief introduction to the collateral order doctrine and discusses forced medication for trial competency purposes. …

Third Strike Or Merely A Foul Tip?: The Gross Disproportionality Of Lockyer V. Andrade, Joy M. Donham

Akron Law Review

“The United States is besieged by an incarceration crisis which far surpasses that of any other nation.” Scholars attribute the increasing prison population to changes in sentencing policy. Politicians have used the public pressure resulting from its fear of violence to pass legislation that supports this change in policy and creates more fixed sentencing structures.

California’s Three Strikes law (Three Strikes), an example of such a structure, has resulted in the largest increase in the prison population. Public pressure, spurred by the fear of violent criminals being released and committing the same crimes again and again, led to the enactment …

Federal Sentencing Guidelines, Rosemary Cakmis

Mercer Law Review

The sentencing decisions of the United States Court of Appeals for the Eleventh Circuit in 2014 focused on United States Sentencing Guidelines (USSG, or the Guidelines) enhancements applied in connection with economic, drug, immigration, firearm, and sex-related offenses. This Survey first discusses the precedential decisions dealing with enhancements that only apply to a specific type of offense, such as an economic, drug, or sex-related offense, and are found in Chapter Two of the United States Sentencing Guidelines Manual (the Guidelines Manual). Next, this Survey examines decisions reviewing the "Adjustments" in Chapter Three of the Guidelines Manual, which apply to any …

Dna Storage Banks: The Importance Of Preserving Dna Evidence To Allow For Transparency And The Preservation Of Justice, Cristina Martin

Chicago-Kent Law Review

What is the duty to preserve information in today’s society? In order for humanity to evolve, change and flourish in the future, society needs to preserve its information from the past. In the criminal justice field, preservation of evidence has special significance. DNA evidence in particular has become a helpful aid for innocent defendants who have been improperly imprisoned. Over the past twenty years, the number of exonerations of imprisoned criminal defendants has increased dramatically. With the advancement of technology, old, previously untestable or improperly tested DNA evidence will need to be retested. However, most states do not have proper …

Empowering Employees To Prevent Fraud In Nonprofit Organizations, John M. Bradley

Cardozo Public Law, Policy & Ethics Journal

This Article examines the significant problem of fraud within nonprofit organizations and demonstrates that current anti-fraud measures do not adequately reflect the important role employees play in perpetuating or stopping fraudulent activity. Psychological and organizational behavior studies have established the importance of (1) participation and (2) peers in shaping the behavior of individuals within the organizational context. This Article builds on that research and establishes that to successfully combat fraud, organizations must integrate employees into the design, implementation, and enforcement of anti-fraud strategy and procedures. Engaged, empowered employees will be less likely to commit fraud and more likely to dissuade …

Book Review Of Fraudulent Evidence Before Public International Tribunals: The Dirty Stories Of International Law, Nancy Amoury Combs

Faculty Publications

No abstract provided.

Choice Of Counsel And The Appearance Of Equal Justice Under Law, Wesley M. Oliver

Northwestern University Law Review

Once a federal prosecutor obtains an indictment that seeks a forfeiture, a judge must permit the prosecutor to freeze all the potentially forfeitable assets that would be unavailable at the time of conviction. Obviously, funds used for the defense would fit into that category. Equally obvious is the tension between the government’s interest in assets that may be forfeitable and a defendant’s Sixth Amendment right to choice of counsel. A number of lower courts therefore had permitted defendants to seek release of the assets needed for a defense by challenging the grand jury’s determination that probable cause existed to believe …

Civil Disabilities In An Era Of Diminishing Privacy: A Disability Approach For The Use Of Criminal Records In Hiring, Andrew Elmore

Faculty Scholarship

An evaluation of normative and legal frameworks to encourage the employment of people with criminal convictions is in order. While current approaches are likely to eliminate overbroad initial hiring screens, there remains the unfinished project of reintegrating persons with criminal convictions into the workforce. For this, policy tools are needed to discourage the misuse of irrelevant criminal convictions and to encourage a contextualized evaluation of criminal convictions and the fair consideration of applicants’ qualifications separate from them.

This Article proposes a disability normative and legal framework as a useful approach to guide this analysis. Disability laws first consider the privacy …

A Comprehensive Analysis Of The History Of Interrogation Law, With Some Shots Directed At Miranda V. Arizona, Tracey Maclin

Faculty Scholarship

Police interrogation is designed to convict suspects under arrest or those suspected of crime. It does not matter that the suspect may not be guilty; interrogation is instigated to obtain an incriminating statement that will help convict the suspect. While many are quick to defend what are considered the “respectable freedoms” embodied in the Constitution — freedom of speech, freedom of the press, and freedom of religion — few champion the Fifth Amendment’s bar against compelled self-incrimination, popularly known as the “right to remain silent,” as a basis for a suspect’s right to resist police questioning. Although it has been …

Summary Of Lisle V. State, 131 Nev. Adv. Op. 39 (June 25, 2015), Adam Wynott

Nevada Supreme Court Summaries

The Court held that the petitions filed by the appellant, Kevin James Lisle (Lisle), were procedurally barred. The Court determined that a petitioner cannot present new evidence of mitigating circumstances in order to prove actual innocence of the death penalty. The Court determined that the claims of Lisle did not warrant relief and upheld the district court ruling.

Developmental Detour: How The Minimalism Of Miller V. Alabama Led The Court's "Kids Are Different" Eighth Amendment Jurisprudence Down A Blind Alley, Mary Berkheiser

Akron Law Review

With its narrow ruling, Miller has taken the Eighth Amendment kids are different jurisprudence on a deleterious detour that could lead Miller and Jackson and others like them to a certain dead end. Where Miller went wrong is the subject of this paper. It begins with Graham and the significance of the Court’s ruling that the Eighth Amendment categorically precludes imposition of a sentence of life without parole on a juvenile nonhomicide offender. Next, this paper turns to the Supreme Court’s decision in Miller, parsing the Court’s reliance on precedent and the reasoning that led it to adopt a ruling …

The New State Postconviction, Giovanna Shay

Akron Law Review

I argue in this paper that, because Maples and Martinez coincide with other important developments that make state postconviction more important, they could have critical synergistic effects. Maples and Martinez create incentive for states to provide effective counsel in state postconviction at a moment when these proceedings are being forced to assume a new role in the development of federal constitutional criminal procedure. The confluence of these events could produce a new era in state postconviction.

Bright Lines, Black Bodies: The Florence Strip Search Case And Its Dire Repercussions, Teresa A. Miller

Akron Law Review

Part I is a brief history of Search and Seizure law, focusing on seismic doctrinal shifts that occurred from the 1950s to the present. As a framework for the important cases, the Founders’ concerns about abuse of governmental authority are discussed, as well as the rights protected by the Fourth Amendment. Various governmental programs will also be presented, such as the War on Drugs and its call for a large-scale federal anti-drug policy, first initiated by President Richard Nixon in 1969. Part II is a description of the central reasoning presented in Florence v. Board of Chosen Freeholders, including the …

Florence V. Board Of Chosen Freeholders: Police Power Takes A More Intrusive Turn, Wayne A. Logan

Akron Law Review

This symposium affords an opportunity to reflect upon the combined force of Florence and one of its foundational precedents, also decided by a 5-4 vote: Atwater v. City of Lago Vista. In Atwater, the Court afforded police explicit authority to arrest individuals for very minor offenses (there failure to wear a seatbelt) without a warrant, paving the way not only for arrests such as experienced by Albert Florence, but also a myriad of others, based on laws contained in state, local and federal codes. With Atwater, the Court refused to limit the governmental power to subject individuals to the trauma …

The Modest Effect Of Minneci V. Pollard On Inmate Litigants, Alexander Volokh

Akron Law Review

This Symposium, on the recent Supreme Court Term’s criminal procedure jurisprudence, illustrates these complexities. Of the five “cases” discussed here, three come out in a “liberal” direction and two come out in a “conservative” direction. Nor do the results merely stem from Justice Kennedy’s swing vote (though he was in the majority in all of these cases); one of the “liberal” cases was decided by a majority of seven Justices, and one of the “conservative” ones was decided by a majority of eight. Looking at these cases together is a good way of reminding us to be wary of simplistic …

The Duke Rape Case Five Years Later: Lessons For The Academy, The Media, And The Criminal Justice System, Dan Subotnik

Akron Law Review

The time that has since passed allows for a more comprehensive evaluation of the cultural meaning of the Duke Rape case. This is the goal of the newly released “Institutional Failures,” which constitutes a point of departure for this review. The aim of this article is first to clarify the contribution this book makes to an understanding of the case. I will describe and analyze the content of the nine essays that make up the book; I will make reference to related works, and I will offer a concluding evaluation of the book’s likely impact.