Criminal Procedure Commons^™

Legal Consciousness As Race Consciousness: Expansion Of The Fourth Amendment Seizure Analysis Through Objective Knowledge Of Police Impunity, Lindsey Webb

Sturm College of Law: Faculty Scholarship

Encounters between police officers and members of the community are deeply influenced by race. Yet when courts assess whether police officers have complied with the Fourth Amendment, they explicitly exclude consideration of the ways in which the police-civilian interaction was influenced by racial bias, assumptions, and fear. In determining whether law enforcement officers seized a civilian, for example, courts look to the objective circumstances of the event, such as the number of officers involved, whether police weapons were drawn, and the tone of voice the officers used. They then assess whether, under such circumstances, a reasonable person would feel free …

Isonomy, Austerity, And The Right To Choose Counsel, Janet Moore

Faculty Articles and Other Publications

People who can afford to hire criminal defense attorneys have a Sixth Amendment right to choose a lawyer who is qualified, available, and free from conflicts of interest. The same right to choose counsel is routinely denied to people who need government-paid defense lawyers because they cannot afford to hire attorneys. In prior work, I invoked democratic theory to argue that this de jure discrimination blocks constitutional law formation by poor people and should be eliminated. This Article extends the analysis by explaining how a different theoretical approach—one grounded in libertarian commitments to private enterprise and austerity in public funding—shaped …

Why The Categorical Approach Should Not Be Used When Determining Whether An Offense Is A Crime Of Violence Under The Residual Clause Of 18 U.S.C. § 924 (C), Mary Frances Richardson

American University Law Review

No abstract provided.

How Defendant Characteristics Affect Sentencing And Conviction In The Us, Payton Kuenzli

Honors Undergraduate Theses

This research study analyzes whether or not there is any relationship between sentencing and conviction and certain defendant characteristics in the US legal system. In the midst of a time where the nation is strongly divided politically, the topic is often the center of research projects and discussions in academic journals. Specifically, this research explores the 3 characteristics- race, gender, and socioeconomic status. Within this article, multiple case studies from other journals are cited in which research and experiments have suggested that these factors do have influence on both whether or not a defendant gets convicted or for how long …

Why Do Prosecutors Say Anything? The Case Of Corporate Crime, Samuel W. Buell

Faculty Scholarship

Criminal procedure law does not require prosecutors to speak outside of court. Professional regulations and norms discourage and sometimes prohibit prosecutors from doing so. Litigation often rewards strategic and tactical maintenance of the element of surprise. Institutional incentives encourage bureaucrats, especially those not bound by procedural requirements of administrative law, to decline to commit themselves to future action. In the always exceptional field of corporate crime, however, the Department of Justice and federal line prosecutors have developed practices of signaling and describing their exercise of discretion through detailed press releases, case filings, and policy documents. This contribution to a symposium …

How Can I Reconcile With You When Your Foot Is On My Neck: The Role Of Justice In The Pursuit Of Truth And Reconciliation, Olwyn Conway

Scholarly Articles in Law Reviews & Journals

In Ferguson, a wound bleeds. For 108 days, we have been in a state of prolonged and protracted grief.... We have had no choice but to cling together in hope, faith, love and indomitable determination to capture that ever-escaping reality of justice ... we find ourselves reinjured, continually heartbroken, and robbed of even the remote possibility of judicial resolution. For 108 days, we have continuously been admonished that we should "let the system work," and wait to see what the results are. The results are in. And we still don'thavejustice. . . . We, altogether, bound up in a system …

A Parent’S Final Sacrifice: Self-Incrimination In Failure To Protect Cases, 51 J. Marshall L. Rev. 377 (2018), Maggie Butzen

UIC Law Review

When criminal proceedings commence, the passive parent is forced to choose the lesser of two evils: testify and risk self-incrimination or guard their constitutional right and risk the person who abused them and their child going free.The passive parent exists at a crossroads: defendant, parent, and victim. The main purpose of this Comment is to analyze this crossroads under a Fifth Amendment lens and propose a workable solution to allow these passive parents a way to better navigate these “two evils.” To be clear: this Comment’s purpose is not to assert whether a passive parent should be held culpable for …

Police Ignorance And Mistake Of Law Under The Fourth Amendment, Eang L. Ngov

Faculty Scholarship

No abstract provided.

What Kind Of Judge Is Brett Kavanaugh?, Elliott Ash, Daniel L. Chen

Cardozo Law Review de•novo

This article reports the results of a series of data analyses of how recent Supreme Court nominee Brett Kavanaugh compares to other potential Supreme Court nominees and current Supreme Court Justices in his judging style. The analyses reveal a number of ways in which Judge Kavanaugh differs systematically from his colleagues. First, Kavanaugh dissents and is dissented against along partisan lines. More than other Judges and Justices, Kavanaugh dissents at a higher rate during the lead-up to elections, suggesting that he feels personally invested in national politics. Far more often than his colleagues, he justifies his decisions with conservative doctrines, …

Capital-Sentencing Law And The New Conservative Court, Scott W. Howe

Cardozo Law Review de•novo

With the Supreme Court now dominated by a solidly conservative majority, recent, well-grounded hopes for prompt judicial abolition of the death penalty have vanished. Furthermore, existing Eighth Amendment doctrines that limit the death penalty could be in jeopardy. Historically, many advocates for abolition have criticized these doctrines. They claim that the Eighth Amendment prohibition on Cruel and Unusual Punishments requires “consistency” in capital selection and that current capital-sentencing doctrines do not satisfy—and sometimes conflict with— this requirement. However, these advocates failed to anticipate the need to defend these doctrines should judicial abolition become an impossibility and the rolling-back of current …

Rethinking The Boundaries Of "Criminal Justice", Benjamin Levin

Publications

This review of The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Natapoff, eds.) tracks the shifting and uncertain contours of “criminal justice” as an object of study and critique.

Specifically, I trace two themes in the book:

(1) the uncertain boundaries of the “criminal justice system” as a web of laws, actors, and institutions; and

(2) the uncertain boundaries of “criminal justice thinking” as a universe of interdisciplinary scholarship, policy discourse, and public engagement.

I argue that these two themes speak to critically important questions about the nature of criminal justice scholarship and reform efforts. Without a firm understanding …

The New Writs Of Assistance, Ian Samuel

Fordham Law Review

The providers of network services (and the makers of network devices) know an enormous amount about our lives. Because they do, these network intermediaries are being asked with increasing frequency to assist the government in solving crimes or gathering intelligence. Given how much they know about us, if the government can secure the assistance of these intermediaries, it will enjoy a huge increase in its theoretical capacity for surveillance—the ability to learn almost anything about anyone. This has the potential to create serious social harm, even assuming that the government continues to adhere to ordinary democratic norms and the rule …

Criminal Juries In The 21st Century: A Case-Study Introduction To Contemporary Issues, Margaret C. Stevenson, Cynthia J. Najdowski

Psychology Faculty Scholarship

In this introductory chapter, we provide an overview of the goals of the present volume and a preview of the individual chapters herein. Specifically, we review research on various understudied and cutting-edge topics related to the intersection of psychological research and criminal jury decision making. This research is placed in the real-world context by relating it to actual criminal cases that exemplify each topic addressed in the volume. A common theme reflected throughout the chapter is an emphasis on understanding how current issues related to societal attitudinal shifts, technological advances, and juror experiences affect the structure, function, and performance of …

Justice Outside Of Criminal Courtrooms And Jailhouses, In Arcs Of Global Justice: Essays In Honour Of William A. Schabas (Margaret M. Deguzman & Diane Marie Amann Eds., 2018), Mark A. Drumbl

Books and Chapters

This chapter examines alternate forms of transitional justice, notably, customary forms of dispute resolution, restitution, reparations, amnesties, and civil sanctions. It suggests that the international community’s preference for criminal trials as accountability mechanisms in the aftermath of genocide results in the ‘othering’ of these alternate forms of justice. Such ‘othering’ narrows legal pluralism to questions of the location of criminal process and the imposition of custodial punishment (who prosecutes, who sentences?), rather than a richer examination of how deployment of a conceptual diversity of overlapping mechanisms could promote shared objectives of accountability, justice, and transition.

Honesty Without Truth: Lies, Accuracy, And The Criminal Justice Process, Lisa Kern Griffin

Faculty Scholarship

Focusing on “lying” is a natural response to uncertainty but too narrow of a concern. Honesty and truth are not the same thing and conflating them can actually inhibit accuracy. In several settings across investigations and trials, the criminal justice system elevates compliant statements, misguided beliefs, and confident opinions while excluding more complex evidence. Error often results. Some interrogation techniques, for example, privilege cooperation over information. Those interactions can yield incomplete or false statements, confessions, and even guilty pleas. Because of the impeachment rules that purportedly prevent perjury, the most knowledgeable witnesses may be precluded from taking the stand. The …

Book Review | Who Killed Betty Gail Brown? Murder, Mistrial, And Mystery, William H. Fortune

Law Faculty Popular Media

No abstract provided.

Remedial Reading: Evaluating Federal Courts’ Application Of The Prejudice Standard In Capital Sentences From “Weighing” And “Non-Weighing” States, Sarah Gerwig-Moore

Articles

On March 31, 2016, the State of Georgia executed my client, Joshua Bishop. Until the time of his execution, several successive legal teams challenged his conviction and sentence through the usual channels: direct appeal, state habeas corpus proceedings, and federal habeas corpus proceedings. The last hearing on the merits of his case was before a panel of the United States Court of Appeals for the Eleventh Circuit, which accepts appeals from death penalty cases out of Georgia, Florida, and Alabama. In a lengthy opinion describing the many mitigating circumstances present in Mr. Bishop’s case, the Eleventh Circuit denied relief. This …

Criminal Procedure, The Police, And The Wire As Dissent, I. Bennett Capers

Faculty Scholarship

No abstract provided.

The Right To Counsel In Criminal Cases: Still A National Crisis, Mary Sue Backus, Paul Marcus

Faculty Articles

In 1963, Gideon v. Wainwright dramatically changed the landscape of criminal justice with its mandate that poor criminal defendants be entitled to legal representation funded by the government. As scholars and practitioners have noted repeatedly over more than fifty years, states have generally failed to provide the equal access Gideon promised. This Article revisits the questions raised by the authors over a decade ago when they asserted that a genuine national crisis exists regarding the right to counsel in criminal cases for poor people. Sadly, despite a few isolated instances where litigation has sparked some progress, the issues remain the …

Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson

Faculty Articles

We finally have a federal ‘test case.’ In Carpenter v. United States, the Supreme Court is poised to set the direction of the Fourth Amendment in the digital age. The case squarely presents how the twentieth-century third party doctrine will fare in contemporary times, and the stakes could not be higher. This Article reviews the Carpenter case and how it fits within the greater discussion of the Fourth Amendment third party doctrine and location surveillance, and I express a hope that the Court will be both a bit ambitious and a good measure cautious. As for ambition, the Court …

How To Instruct The Jury On Stipulations Of Fact In Federal Criminal Cases, Linsey K. Hogg

Kentucky Law Journal

No abstract provided.

Rhode Island's Prescription Drug Database: Warrantless Searches By Law Enforcement Pass Constitutional Muster, Stephen D. Lapatin

Roger Williams University Law Review

No abstract provided.

Mandating Meaningful Forensic Discovery: A Proposal To Fuel The Engine Of Truthfulness, Marjorie Mcdiarmid

Faculty & Staff Scholarship

No abstract provided.

Assessing The Real Risk Of Sexually Violent Predators: Doctor Padilla's Dangerous Data, Tamara Rice Lave, Franklin E. Zimring

Articles

This Article uses internal memoranda and emails to describe the efforts of the California Department of Mental Health to suppress a serious and well-designed study that showed just 6.5% of untreated sexually violent predators were arrested for a new sex crime within 4.8 years of release from a locked mental facility. The Article begins by historically situating sexually violent predator laws and then explains the constitutionally critical role that prospective sexual dangerousness plays in justifying these laws. The Article next explains how the U.S. Supreme Court and the highest state courts have allowed these laws to exist without requiring any …

Public Defense Litigation: An Overview, Lauren Sudeall Lucas

Faculty Publications By Year

No abstract provided.

Rapid Dna Testing And Virginia's Rape Kit Backlog: A Double-Edged Sword Masquerading As A Miracle, Or The Future Of Forensic Analysis?, Emma C. Greger

Law Student Publications

While Rapid DNA technology has the potential to revolutionize every aspect of the criminal justice system, from arrest to the postconviction appeals process, there has been particular excitement centered around its potential to reduce the rape kit backlog.

Criminal Procedure: Confessions, Searches, And Seizures, Honorable Michael E. Keasler, Benjamin S. Brown

SMU Annual Texas Survey

No abstract provided.

Lobbying As A Strategy For Tribal Resilience, Kirsten Matoy Carlson

Law Faculty Research Publications

No abstract provided.

Extradition And Trial Delays: Recent Developments (And Lessons?) From Canada, Laura Ellyson

Articles, Book Chapters, & Popular Press

Extradition – the formal rendition of criminal fugitives between states – is well-known to be a time-consuming process that often has impacts, minor or major, on the ability of states to complete prosecution in a timely manner. Thus, the extradition process can sometimes be at odds with the right to trial within a reasonable time, which is part of the overall package of fair trial rights enshrined in international human rights law. In Canada, this right is implemented by paragraph 11(b) of the Canadian Charter of Rights and Freedoms. In recent years Canadian courts have developed a series of principles …

Occupational Licensing: How States And Professionals Work To Keep The Poor From Working, Seth Johnson

Public Interest Law Reporter

No abstract provided.