Criminal Procedure Commons^™

An International Prosecutor As U.S. Special Counsel, Cody Corliss

Utah Law Review

The appointment of Jack Smith to investigate then-former President Donald Trump brought to the fore the essential qualities for special counsels who act when a conflict of interest precludes investigation by the Department of Justice. Most attention on Smith centered on his domestic work and its correlation with a special counsel’s responsibilities. That emphasis, however, obscured the most salient line on his resume: international investigator and prosecutor. The conclusion of Smith’s tenure as special counsel following the election of Donald Trump to a second term as president provides an opportunity to consider the skills and qualifications that matter most in …

How Alternative Sentencing Methods Can Reduce Recidivism And Incarceration Rates For Drug Offenders In Wisconsin, Mitchell D. Fugate

Master of Public Administration Capstone Papers

The criminal justice system in the U.S. has typically been focused more on punishment in the past, but in recent times has shifted more towards implementing rehabilitative measures as a means to reduce the recidivism rate, and thus decrease the overall incarceration rates for the U.S.. An area that is especially different is drug offenses, as many of those that are arrested are addicted, and punishment does not address that addiction directly. By using alternative sentencing as a means of rehabilitation for drug offenses, the criminal justice system can work to address the issues at the root causes as well …

When Prenatal Care Becomes A Crime, Casey Hunter

Fordham Law Review

For decades, pregnant women have increasingly faced criminalization for their actions and conduct during pregnancy, with Alabama emerging as a focal point due to its aggressive use of section 26-15-3.2: Chemical Endangerment of Exposing a Child to an Environment in Which Controlled Substances Are Produced or Distributed. Originally intended to protect children from the dangers of methamphetamine labs, this law has been reinterpreted to prosecute pregnant women who test positive for controlled substances. Central to these prosecutions are positive drug tests obtained from prenatal health records, causing many women to avoid prenatal care for fear of legal consequences.

This Note …

Antiracist Expert Evidence, Jasmine Gonzales Rose, Asees Bhasin, Spencer Piston

Faculty Scholarship

Since 2020, when mass protests against racism swept across the United States, scholars, lawyers, and the general public have become increasingly aware that racism permeates society and the criminal legal system, from overt racial animus to the nuanced effects of structural racism. Demonstrating the influence of racism is therefore vital to the practice of criminal defense, yet many attorneys do not know how to prove racism in court. We surveyed over seven hundred criminal-defense attorneys across the United States, and nearly half had never heard of expert witnesses testifying or submitting written reports on racism—what we call “antiracist expert evidence.” …

Dynamics Of The Penitentiary System, Transparent And Accountable Handling Of Criminal Cases In Criminal Execution Law In Southeast Asia: Convergence And Divergence Of International Perspectives, Anis Widyawati, Ade Adhari, Ali Masyhar, Bearlly Deo Syahputra, Didik Purnomo

Indonesia Law Review

This research examines the dynamics of the penitentiary system transparent, and accountable criminal case handling in criminal execution law in Southeast Asia, focusing on the convergence and divergence of international perspectives. These countries have diverse approaches to the penitentiary system and criminal law enforcement, including in terms of the implementation of the death penalty and the treatment of prisoners. Some countries, such as Singapore and Malaysia, maintain strict death penalty practices, which often contradict international human rights standards, while others such as the Philippines show inconsistencies in implementing criminal execution laws. This research also examines the three main stages in …

Breaking The Pipeline: Exploring Exclusionary Discipline, Restorative Justice, And The Attitudes And Beliefs Of Educators, Ericka J. Varnedoe

Honors College Theses

This study explores the connection between exclusionary disciplinary practices and the school-to-prison pipeline. It highlights how exclusionary discipline, including suspensions and expulsions, disproportionately affects marginalized groups such as students of color, students with disabilities, and LGBTQ youth, further contributing to the school-to-prison pipeline. In contrast, restorative justice, a non-punitive approach, offers a promising alternative. Initially adopted from the criminal justice system, restorative justice has been integrated into school environments to foster positive school climates, improve experiences, and mitigate challenging behaviors. This research examines educators' attitudes toward both exclusionary and restorative practices, as well as their awareness and implementation of restorative …

Papering Justices, Michael L. Smith

BYU Law Review

Supreme Court reform is a lively topic of discussion and debate, with scholars, commentators, and politicians debating a variety of proposed Court reforms, such as term limits, additional Justices, and jurisdiction stripping. This Article adds a new idea to the mix: papering Justices. Several states permit each side to a dispute to file one motion to automatically disqualify the judge overseeing their case. These requests are to be granted automatically without any showing of facts, hearings, or further briefing. This is known as “papering” the judge. Drawing from these practices, I propose that each side to a dispute before the …

The Impact Of Erlinger V. United States On State Recidivist Sentencing Laws, Chad Flanders

Washington and Lee Law Review Online

In Erlinger v. United States, the United States Supreme Court ruled that finding that an offender had committed two felonies “on separate occasions” under the Armed Career Criminal Act had to be done by a jury, not a judge. In one respect, the decision is narrow: it is an extension of the Court’s Apprendi jurisprudence. But in another respect, the decision is far-reaching. As some state appeals courts have already realized, the decision makes unconstitutional state laws that give the judge—rather than the jury—the power to decide whether someone is a “persistent” or “habitual” offender based on whether a …

From Prison To Community: Challenges Of Recidivism In The United States, Kellie R. Parks

Master of Arts in Human Services

Recidivism among adult females in the United States is often an overlooked and under analyzed aspect of the justice system. Women criminals encounter unique challenges and often need distinct rehabilitative needs while incarcerated and following release. This paper explores the many factors contributing to recidivism in adult females including mental health challenges, biological, neurologic and social factors. It provides insight into how lower recidivism rates can be achieved by adapting other reform measures such as education programs.

Sentencing Roulette: The Absurdity And Unconstitutionality Of The Crime Of Violence Enhancements, Noam Kozlov

University of Miami Race & Social Justice Law Review

The law needs to be clear. This dictum is true especially with respect to criminal law. Defendants need to be made aware of the statutory and judicial rules surrounding their trial, and sentencing outcome should be foreseeable, even if not predictable. But we have failed. We have failed in granting defendants this sought-after clarity, exposing them to grossly disproportional and disparate sentences. One such failure is found in the Crime of Violence enhancement rules. COV enhancements add years or even decades to sentences of defendants whose previous convictions are classified as 'violent'. Despite this detrimental impact of the COV rules, …

The Jerome Project: Titus Kaphar’S Deconstruction Of Incarceration Aesthetics, Anna Edwards

Montserrat Student Scholarship

Titus Kaphar is a multi-media artist from Kalamazoo, MI whose major works include The Jerome Project, From a Tropical Space and Exhibiting Forgiveness. He is also the founder of NXTHVN art center. When searching for his father in prison databases in 2011, Kaphar found 97 other men with the same first and last name sparking this personal and activist multi-media project.

Bowe V. United States: Brief Of Federal Courts Scholars As Amici Curiae In Support Of Petitioner, Leah Litman, Eve Brensike Primus

Appellate Briefs

Amici curiae are law professors who research, study, teach, and write about the writ of habeas corpus and federal postconviction relief. They share an interest in seeing habeas law applied in a way that ensures the just adjudication of claims.

Michigan V. Tucker: A Reevaluation Of Miranda, Maine Law Review

Maine Law Review

In Michigan v. Tucker the Supreme Court considered whether to exclude the fruits of an interrogation that did not meet the precautionary standards of Miranda v. Arizona. The defendant contended that use of the evidence at his trial violated his fifth amendment privilege against self-incrimination. In deciding that the evidence had been properly admitted, the Tucker Court interpreted Miranda v. Arizona as outlining recommended procedural safeguards for the protection of fifth amendment rights and reasoned that omission of procedural safeguards does not necessarily constitute a violation of the underlying rights. Specifically, the Court concluded that a suspect who did not …

Appointment Of Counsel In Misdemeanor Prosecutions In Maine, Maine Law Review

Maine Law Review

When a criminal defendant appears without a lawyer before a trial court, the trial judge must decide whether to appoint counsel to represent him. The trial judge's decision is one of constitutional magnitude under both the United States and Maine Constitutions, and the decision made in any particular instance affects the integrity of the trial process and the validity of any conviction. The scope of the constitutional right to appointed counsel has lately been the subject of major decisions of the United States Supreme Court and of the Maine Supreme Judicial Court. The United States Supreme Court in Argersinger v. …

Attorneys And Subornation Of Perjury, Maine Law Review

Maine Law Review

Federal law has made the crime of subornation of perjury depend on a showing that the suborned witness has made an intentional false statement under oath. For a prosecution to be successful, it must be shown first, that the witness gave false testimony under oath; second, that the witness knew the testimony to be false; third, that the defendant induced the false testimony; and fourth, that the defendant knew the induced testimony to be false. Thus, if the criminal intent of the witness cannot be proven, the defendant must be acquitted. The curious result is that the prosecution fails not …

White Collar Crimes, Maine Law Review

Maine Law Review

This Article deals with those sections of the Maine Criminal Code which criminalize certain nonviolent conduct. Many of the offenses contained in the Chapters on bribery, fraud and falsification are new to Maine law. Here, as elsewhere, the drafters of the Code have attempted to distinguish between conduct that is sufficiently detrimental to community interests to require the criminal sanction and conduct that is regarded as merely undesirable. These sections in particular represent the societal interests in preserving the integrity of documents, official statements and public offices, and in encouraging honesty in business transactions. This Article focuses on the derivation …

Sentencing, Melvyn Zarr

Maine Law Review

Once the legislature has defined the acts it will punish as criminal, it must then establish a sentencing system. There are two principal features of a sentencing system: it grades crimes according to seriousness, and it apportions sentencing discretion among the legislature, the courts, and administrative agencies. The device for apportionment between the legislature and the courts is the mandatory sentence, by which the legislature may fix a period of imprisonment for a crime and forbid judges to grant probation. Apportionment of sentencing discretion between the courts and administrative agencies, on the other hand, is governed by the choice between …

Sex Offenses, Judy R. Potter

Maine Law Review

A central theme of the Maine Criminal Code is to "distinguish behavior that is merely socially undesirable from that which is sufficiently threatening to require the specialized effort of the criminal law to prevent it." Nowhere in the Code is this distinction more apparent than in the area of sex offenses, which encompasses a wide spectrum of degrees of social harm. At one end of this spectrum are acts which clearly involve dangerous behavior, such as non-consensual sexual acts and acts of sexual imposition on minors and incompetents. At the other end of the spectrum are sexual acts done in …

Property Offenses, Peter G. Ballou

Maine Law Review

The Criminal Code has sought to accomplish three goals in the area of property crimes: consolidation, simplicity, and consistency in the treatment of similar offenses. The consolidation of a variety of previously separate crimes into the single crime of theft may be the most drastic change from prior law in the entire Code. Almost all of the ways in which a person may be deprived of his property or services to the gain of another are now included in this single crime. The consolidation under the heading of burglary of a variety of crimes involving entry of buildings in combination …

Gambling, Michael D. Seitzinger

Maine Law Review

Simplification of the laws which define criminal offenses and decriminalization of behavior no longer warranting the enforcement mechanisms of the criminal law were two principal objectives of the Criminal Code Revision Commission. Chapter 39 of the Criminal Code contains the revision of Maine's anti-gambling statutes and illustrates as well as any Code chapter the application of these objectives to the formulation of substantive criminal offenses. The substantive provisions of the prior law failed, for the most part, to define key terms. Without such definitions, the provisions of Title 17 which established the elements of an offense were often prolix and …

Homicide, Peter J. Rubin

Maine Law Review

The homicide provisions of the Maine Criminal Code break down culpable killings into six degrees. Until the line of cases beginning with State v. Wilbur, the law of Maine had always seemed to separate the various unlawful killings into separate crimes rather than degrees of the same crime. Commencing with State v. Rollins and State v. Lafferty, the Maine Supreme Judicial Court announced that there was and always had been only one crime of "felonious homicide." Murder and manslaughter were merely punishment categories or degrees of "felonious homicide." The new homicide provisions are similar to the pre-Code court interpretation in …

Prefatory Note, Robert Checkoway Editor-In-Chief

Maine Law Review

In its recent simplification and clarification of the criminal law, the Maine Criminal Law Revision Commission was also obliged to reconsider the proper breadth of the criminal sanction itself. The results of these parallel efforts are apparent throughout the Criminal Code. Those activities ordinarily considered criminal have been more precisely and comprehensively regulated, while the limits of the law controlling activities less socially damaging have been readjusted in the process of exact delineation. The Articles in this Special Issue offer an explanation and critical evaluation of the Commission's efforts.

Introduction, Gerald F. Petruccelli

Maine Law Review

Others, most notably the late Professor Herbert Packer, have written extensively in recent years concerning the limits of the criminal sanction, and it seems trite to observe that the subject matter is hardly novel and has been the subject of literary and philosophical discourse for centuries. The purpose of this brief presentation, therefore, is not to review that voluminous literature or to make expansive claims for the new Maine Criminal Code. Rather, it is to show that the new Maine Code was written with an awareness of the basic premises both of classical theories of limited public intrusion into private …

Mens Rea And Insanity, Maine Law Review

Maine Law Review

Two developments in the administration of criminal law call for a closer examination of the relationship between mens rea and insanity. The first is the practice of bifurcating trials into a guilt phase and an insanity phase. The new Maine Criminal Code, for example, allows the defendant to elect such a procedure. The second development is the increasing willingness of courts to admit evidence of the accused's mental disease or defect as probative of whether he possessed the culpable state of mind, or mens rea, which must be proven as one of the elements of the crime charged. When the …

The Burden Of Proof And The Insanity Defense After Mullaney V. Wilbur, Maine Law Review

Maine Law Review

In 1970, the Supreme Court of the United States in the case of In re Winship specified an evidentiary standard of proof for criminal prosecutions as a requirement of the due process clause of the 14th amendment: "Lest there remain any doubt about the constitutional stature of the reasonable doubt-standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Five years later, in Mullaney v. Wilbur, the Court extended Winship to invalidate Maine's statutory scheme of …

Constitutional And Legislative Issues Raised By The Entrapment Defense In Maine, Maine Law Review

Maine Law Review

In recent years the increase in undercover investigative activity by police agents has generated considerable interest in the defense of entrapment. The entrapment defense to a criminal prosecution has been recognized either judicially or legislatively in most jurisdictions in the United States. The proper formulation of the defense, however, has given rise to conflicting opinions involving various evidentiary and constitutional considerations. In raising the defense of entrapment, a defendant does not deny that he committed the acts constituting the crime, but rather asserts that, on grounds of public policy, he should not be convicted. In Maine, the defense of entrapment …

"Jurisdictional" Indictments, Informations And Complaints: An Unnecessary Doctrine, Peter G. Ballou

Maine Law Review

In the majority of jurisdictions in the United States, including the federal courts and Maine, a sufficient indictment, information or complaint is deemed an absolute prerequisite to a valid conviction. This right to a sufficient charging instrument is not subject to waiver and may be asserted at any time, even though not raised before or during trial or on direct appeal from a conviction. This characteristic of nonwaivability, probably unique among the rights belonging to a criminal defendant, has led some courts, including the Maine Supreme Judicial Court, to characterize the requirement of a sufficient indictment as "jurisdictional." When an …

State V. Hayes: Privacy Of The Mind And The Incompetent Defendant, Maine Law Review

Maine Law Review

Although numerous jurisdictions have faced the question of whether a criminal defendant can be considered competent to stand trial when his competency is medically induced, the question of whether the state may force the accused to take competency-inducing medication during trial over the pretrial objections of the defense is relatively novel. Confronted with that issue recently, the Supreme Court of New Hampshire in State v. Hayes held that the state could compel a criminal defendant to take psychotropic drugs' necessary to maintain competency if the jury was informed about the use of medication. It is clear from the New Hampshire …

Central Park 5~ Rape, Racism, & False Confessions, Harleigh D. Smith

SACAD: Scholarly Activities

Racism is a predominant factor that has been induced and intertwined within the criminal justice system for decades. Racism also played a critical in many historical movements and protests throughout time, about the criminal justice system. “Racism is the belief that groups of humans possess different behavioral traits corresponding to physical appearance and can be divided based on the superiority of one race over another. It may also mean prejudice, discrimination, or antagonism directed against others because they are of a different race or ethnicity.” Racism can happen anywhere, anytime, to anyone, and that is what was used to falsely …

Mental Abnormality In The Maine Criminal Code: Section 58 (1-A), Susan E. Peck

Maine Law Review

The law surrounding the insanity defense has always been complex and problematic. Since the promulgation of the M'Naghten test in 1843, courts and legislators have attempted to articulate a clear and easily understood definition of insanity. Legal scholars have created an overwhelming volume of literature on such important aspects of the defense as the role of psychiatrists in a jury trial, the appropriateness of the diminished capacity defense, and the constitutionality of imposing the burden of proving insanity on the defendant. Even the necessity of retaining the defense has been questioned. The Maine Supreme Judicial Court has recently confronted a …