Criminal Procedure Commons^™

A Quiet War: The Judiciary's Steady And Unspoken Effort To Limit Felony-Murder, Maggie Davis

Arkansas Law Review

On a Wednesday afternoon a sixteen-year-old boy is hanging out after school with four of his friends. He is your average sixteen-year-old; he has a girlfriend who works at Wendy’s, and his current worry is about passing his driving test. He smokes some weed from time to time with his friends, but he has a clean criminal record. After complaining about being broke and deciding they have nothing better to do, the five friends elect to break into a seemingly vacant home in order to steal some items for resale. He is already thinking about what he will buy with …

Covering The Indigent Defendant System, Francis J. Difiore

Capstones

I chose the indigent defense system in New York City as my focus community for social journalism, particularly the attorneys who work in this system and the clients they represent. I conducted interviews and outreach with working public defenders and assigned counsel in the Bronx and Manhattan, and wrote stories for a self-started online publication known as "Public Defense Informer."


https://public-defense-informer.glitch.me/

Law Enforcement’S Use Of Facial Recognition Software In United States Cities, Samantha Jean Wunschel

Honors Program Theses and Projects

Facial recognition software is something we use every day, whether it’s a suggested tag on our Facebook post or a faster way to unlock our phones. As technology becomes increasingly pervasive in our lives, law enforcement has adapted to utilize the new tools available in accessory to their investigations and the legal process.

In New York’S Prison System, Who Is Eligible For A Second Chance?, Jackie Harris

Capstones

Robert "Bobby" Ehrenberg is 61 years old, and he is serving a 50 years to life sentence at Sullivan Correctional Facility for murdering Silvio Goldberg, a jewelry store owner, in 1992. After decades of "self-examination, education, and rehabilitative programs," Ehrenberg applied for clemency in 2020. In the audio portion, we hear who he was before incarceration and what factors led up to the murder he committed. The other multimedia display the clemency application components, incarceration population data and upcoming state legislation that could impact Ehrenberg’s sentence.

Decarcerating New York City: Lessons From A Pandemic, Nicole Smith Futrell

Publications and Research

Over the last decade, long before the far-reaching impact of COVID-19, the criminal legal system in New York City was on a meandering path toward decarceration. Set against the national backdrop of declining crime rates and a reckoning with the economic, social, and racial costs of mass criminalization and incarceration, elected officials in New York City and State had finally acknowledged that a shift toward reducing the number of people held in New York City jails was long overdue. Sweeping legislative reforms to bail, discovery, and speedy trial statutes, as well as the planned closure of Rikers Island, the city’s …

Suspects, Cars & Police Dogs: A Complicated Relationship, Brian R. Gallini

Washington Law Review

Officers are searching and arresting vehicle occupants without a warrant with increasing regularity. For justification, this Article demonstrates, lower courts across the country unconstitutionally expand the scope of the Fourth Amendment’s automobile exception—often in the context of a positive dog alert. But Supreme Court jurisprudence specifically limits the scope of the automobile exception to warrantless searches of cars and their containers. In other words, the probable cause underlying the automobile exception allows police to search a vehicle and its containers—nothing more.

Despite that clear guidance, this Article argues that a growing number of lower courts nationwide unconstitutionally rely on the …

Ring, Amazon Calling: The State Action Doctrine & The Fourth Amendment, Grace Egger

Washington Law Review Online

Video doorbells have proliferated across the United States and Amazon owns one of the most popular video doorbell companies on the market—Ring. While many view the Ring video doorbell as useful technology that protects the home and promotes safer neighborhoods, the product reduces consumer privacy without much recourse. For example, Ring partners with cities and law enforcement agencies across the United States thereby creating a mass surveillance network in which law enforcement agencies can watch neighborhoods and access Ring data without the user’s knowledge or consent. Because Amazon is not a state actor, it is able to circumvent the due …

Safety, Crisis, And Criminal Law, Jenny E. Carroll

Faculty Scholarship

Concepts of safety and prevention of danger pervade the criminal law canon. Arizona is no exception. The state’s criminal systems pivot around central and entwined goals of protecting public safety and preventing danger. The state constitution permits pretrial detention both for the most serious offenses and when no other condition of release will adequately protect the community from the danger the accused’s freedom might pose. The rules of criminal procedure and the criminal code designate some offenses and actors “dangerous” and urge judges to weigh not only the accused’s risk of flight, but also his future dangerousness in making decisions …

Feigned Consensus: Usurping The Law In Shaken Baby Syndrome/Abusive Head Trauma Prosecutions, Keith A. Findley, D. Michael Risinger, Patrick D. Barnes, Julie A. Mack, David A. Moran, Barry C. Scheck, Thomas L. Bohan

Articles

Few medico-legal matters have generated as much controversy--both in the medical literature and in the courtroom--as Shaken Baby Syndrome (SBS), now known more broadly as Abusive Head Trauma (AHT). The controversies are of enormous significance in the law because child abuse pediatricians claim, on the basis of a few non-specific medical findings supported by a weak and methodologically flawed research base, to be able to “diagnose” child abuse, and thereby to provide all of the evidence necessary to satisfy all of the legal elements for criminal prosecution (or removal of children from their parents). It is a matter, therefore, in …

Irreparably Corrupt And Permanently Incorrigible: Georgia’S Procedures For Sentencing Children To Die In Prison, Rachel Ness-Maddox

Mercer Law Review

Right now, two teenagers live in Georgia prisons, knowing they will be incarcerated for the rest of their lives.Countless adults are serving sentences of life without the possibility of parole (LWOP) for crimes they, too, committed when they were teenagers. It is difficult to find in officially‑reported data adults serving sentences they received for crimes they committed while children. This is because, once the two teenagers specifically noted in the Georgia Department of Corrections’ Inmate Statistical Profileturn twenty, they will move to the next data bracket for imprisoned people between the ages of twenty and twenty‑nine, just as all the …

Punishing Pill Mill Doctors: Sentencing Disparities In The Opioid Epidemic, Adam M. Gershowitz

Faculty Publications

Consider two pill mill doctors who flooded the streets with oxycodone and other dangerous opioids. The evidence against both doctors was overwhelming. They each sold millions of opioid pills. Both doctors charged addicted patients hundreds of dollars in cash for office visits that involved no physical examinations and no diagnostic tests. Instead, the doctors simply handed the patients opioids in exchange for cash. To maximize their income, both doctors conspired with street dealers to import fake patients — many of them homeless — so that the doctors could write even more prescriptions. Both doctors made millions of dollars profiting off …

The Global Rise Of False Testimony For False Pleas, Lucian E. Dervan

Law Faculty Scholarship

This Article examines the growing global reliance on plea bargaining and challenges the foundational assumption that innocent defendants do not plead guilty absent coercion. Through a comparative analysis of the United States, Japan, and South Korea—jurisdictions at different stages of formalizing plea bargaining—the authors combine doctrinal review with cross-cultural laboratory experiments to assess the prevalence of false guilty pleas and false testimony induced by plea incentives. The findings demonstrate that a significant number of innocent participants are willing to plead guilty in exchange for leniency and, critically, to provide false testimony implicating others to secure favorable outcomes. These tendencies persist …

Bargained Justice: The Rise Of False Testimony For False Pleas, Lucian E. Dervan

Law Faculty Scholarship

In Bargained Justice: The Rise of False Testimony for False Pleas, Andrew M. Pardieck, Vanessa A. Edkins, and Lucian E. Dervan examine the empirical foundations of plea bargaining in the United States and its global expansion to jurisdictions such as Japan and South Korea Challenging the longstanding assumption that innocent individuals do not plead guilty absent overt coercion, the authors conduct cross-cultural laboratory experiments to test whether the innocent will falsely plead guilty and falsely implicate others in exchange for leniency. Building on prior research demonstrating high rates of false guilty pleas among innocent participants, the study extends the …

The Female Face Of Misogyny: A Review Of Decriminalizing Domestic Violence: A Balanced Policy Approach To Intimate Partner Violence By Leigh Goodmark And The Feminist War On Crime: The Unexpected Role Of Women's Liberation In Mass Incarceration By Aya Gruber, Dianne L. Post

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Labor Redemption In Work Law, Andrew Elmore

Faculty Scholarship

People with criminal records must find and keep work to reintegrate into society. But private employers often categorically exclude candidates with criminal record histories, especially if the candidate is African American or Latinx. The conventional wisdom is that workplace laws offer little to address this problem. People with criminal records are not a protected class under Title VII, and many employers fear that hiring people with criminal records invites negligent hiring liability. Ban the Box privacy laws delay but may not deter overbroad criminal background checks

This Article challenges this standard account by shifting focus to the state in imposing …

Domestic Violence In Criminal Courts: The Larger Implications For Victims, Jason Johnson

Bridges: An Undergraduate Journal of Contemporary Connections

Academics have considered the treatment of domestic violence in Canada inadequate (Bell, Perez, Goodman, & Dutton, 2011) and “…an indicator of society's inattentiveness to violence against women…” (Garner & Maxwell, 2009, p. 44). Van Wormer (2009) further notes that there is still “…widespread dissatisfaction by battered women … and their advocates with the current system…” (p. 107). While much of the literature focuses on early aspects of the criminal justice system (police action, decision to prosecute, for e.g.), few authors have sought to understand victims opinions about the trial process (Hare, 2010; Smith, 2001). This paper conducts a literature review …

Critical Issues In Policing Ccj 480, Karen Morse

Library Impact Statements

No abstract provided.

Addressing Due Process Concerns: Evaluating Proposals For Civil Asset Forfeiture Reform, Kelly Milliron

Florida Law Review

Civil asset forfeiture compromises criminal due process protections for the sake of allowing the government to take property from citizens and pocket the profits. Within the last decade, several news outlets have reported instances where law enforcement agencies took property from citizens–without arresting or convicting them–and spent the proceeds from seized cash, homes, or vehicles on their own agencies. Because the government is often only required to prove that the property was associated with criminal activity by a preponderance of the evidence, many citizens are left without the resources or ability to defend their property, even when they are innocent. …

A Threat Assessment Framework For Lone-Actor Terrorists, Melissa Hamilton

Florida Law Review

Lone-actor terrorist attacks are on the rise in the Western world in terms of numbers and severity. Public officials are eager for an evidence-based tool to assess the risk that individuals pose for terroristic involvement. Yet actuarial models of risk validated for ordinary criminal violence are unsuitable to terrorism. Lone-actor terrorists vary dramatically in their socio-psychological profiles and the base rate of terrorism is too low for actuarial modeling to achieve statistical significance. This Article proposes a new conceptual model for the terroristic threat assessment of individuals. Unlike risk assessment that is founded upon numerical probabilities, this threat assessment considers …

Going Rogue: Independent Grand Juries Throughout America, Nino Monea

Maine Law Review

Grand juries today do little more than passively approve (almost never disapprove) indictments proposed by prosecutors. But this stands in stark contrast to grand juries in the past. They investigated cases themselves and their purview went well beyond criminal matters. This Article looks in-depth at three historical cases where grand juries not only conducted major investigations but took on major additional roles. They ousted corrupt public officials, ran their cities in the interim, or booted prosecutors that failed to do their jobs. These examples demonstrate that grand juries in modern society could have a more robust role in the justice …

Corruption In The Maritime Industry : Manifestations And The Possibilities To Address It By Educational Measures, Karlson Chitata Sama

World Maritime University Dissertations

No abstract provided.

Structural Sensor Surveillance, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

City infrastructure is getting smarter. Embedded smart sensors in roads, lampposts, and electrical grids offer the government a way to regulate municipal resources and the police a new power to monitor citizens. This structural sensor surveillance, however, raises a difficult constitutional question: Does the creation of continuously-recording, aggregated, long-term data collection systems violate the Fourth Amendment? After all, recent Supreme Court cases suggest that technologies that allow police to monitor location, reveal personal patterns, and track personal details for long periods of time are Fourth Amendment searches which require a probable cause warrant. This Article uses the innovation of smart …

The Due Process Of Bail, Jenny E. Carroll

Faculty Scholarship

The Due Process Clause is a central tenet of criminal law’s constitutional canon. Yet defining precisely what process is due a defendant is a deceptively complex proposition. Nowhere is this more true than in the context of pretrial detention, where the Court has relied on due process safeguards to preserve the constitutionality of bail provisions. This Essay considers the lay of the bail due process landscape through the lens of the district court’s opinion in O’Donnell v. Harris County and the often convoluted historical description of pretrial due process. Even as the O’Donnell court failed to characterize pretrial process as …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

Criminal Law And Procedure, Brittany A. Dunn-Pirio, Timothy J. Huffstutter, Sharon M. Carr, Mason D. Williams

University of Richmond Law Review

This Article surveys recent developments in criminal procedure and law in Virginia. Because of space limitations, the authors have limited their discussion to the most significant published appellate decisions and legislation.

Incorporating Social Science Into Criminal Defense Practice, Eve Brensike Primus

Articles

In recent decades, social scientists have created a treasure trove of empirical and sociological data that defenders can and should use to help their clients. Evidence rules, criminal law, and criminal procedure are filled with concepts informed by social science. When is evidence likely to unfairly prejudice a defendant in the eyes of a jury? Do police interact differently with members of minority populations and how should that inform concepts of reasonableness? How easy or difficult is it for people to identify individuals they see during high-stress criminal episodes? How effective are police interrogation tactics at getting at the truth …

Big Brother Is Watching: Law Enforcement's Use Of Digital Technology In The Twenty-First Century, Samuel D. Hodge Jr.

University of Cincinnati Law Review

No abstract provided.

The Weaponization Of The “Alien Harboring” Statute In A New-Era Of Racial Animus Towards Immigrants, Hannah Hamley

Seattle University Law Review

Federal law 8 U.S.C. § 1324(a)(1)(A)(iii), commonly referred to as the “Alien Harboring” statute, was passed sixty-eight years ago and has been used as a weapon against immigrants and their allies. Spanning back decades, numerous scholars, alarmed by the dangerous use of the statute, have written about its muddled congressional intent and the unclear definition of “harboring.” These issues continue to be relevant and are foundational concerns with the enforcement of the harboring statute. However, in the era of President Donald J. Trump, we are faced with a new danger. We are confronted with an Administration that is ferociously anti-immigrant …

Justice Sonia Sotomayor: The Court’S Premier Defender Of The Fourth Amendment, David L. Hudson Jr.

Seattle University Law Review

This essay posits that Justice Sotomayor is the Court’s chief defender of the Fourth Amendment and the cherished values it protects. She has consistently defended Fourth Amendment freedoms—in majority, concurring, and especially in dissenting opinions. Part I recounts a few of her majority opinions in Fourth Amendment cases. Part II examines her concurring opinion in United States v. Jones. Part III examines several of her dissenting opinions in Fourth Amendment cases. A review of these opinions demonstrates what should be clear to any observer of the Supreme Court: Justice Sotomayor consistently defends Fourth Amendment principles and values.

“Don’T Move”: Redefining “Physical Restraint” In Light Of A United States Circuit Court Divide, Julia Knitter

Seattle University Law Review

To reduce sentencing disparities and clarify the application of the sentencing guide to the physical restraint enhancement for a robbery conviction, this Comment argues that the United States Sentencing Commission (USSC) must amend the USSC Guidelines Manual to provide federal courts with a clearer and more concise definition of physical restraint. Additionally, although there are many state-level sentencing systems throughout the United States, this Comment only focuses on the federal sentencing guidelines for robbery because of the disparate way in which these guidelines are applied from circuit to circuit.