Criminal Procedure Commons^™

Resource Parity For Defense Counsel And The Struggle Between Public Choice And Public Ideals, Ronald F. Wright

ExpressO

The quality of criminal defense counsel desperately needs improving. The strategy this article explores is not a change in the legal standard governing ineffective assistance of counsel claims, or a change in the Supreme Court's reasoning, but something far more fundamental: money. I ask whether it is feasible to link the funding available for defense lawyers to the money that the government spends on prosecution lawyers - in other words, parity of resources.

For reasons described in this article, resource parity will probably not come from the courts, at least not if they act alone. Major funding changes like this …

Department Of Justice Guidelines: Balancing "Discretionary Justice", Ellen S. Podgor

ExpressO

No abstract provided.

The Self-Incrimination Clause Explained And Its Future Predicted, Ronald J. Allen

ExpressO

No abstract provided.

Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel

ExpressO

This paper traces how the Supreme Courts of Canada and the United States have each used the basic guarantee of adjudicative fairness in their respective constitutions to effect revolutions in their countries’ criminal justice systems, through two different jurisprudential models for this development. It identifies a relationship between two core constitutional structures, the basic guarantee and enumerated rights, and shows how this relationship can affect the degree to which entrenched constitutional rights actually protect individuals. It explains that the different models for the relationship between the basic guarantee and enumerated rights adopted in Canada and the United States, an “expansive …

The Coherence Of Orthodox Fourth Amendment Jurisprudence, Samuel C. Rickless

ExpressO

In the legal academy it is widely believed that the U.S. Supreme Court's orthodox (post-Katz, pre-Houghton) fourth amendment jurisprudence is theoretically incoherent. In particular, the Court has been criticized (on doctrinal and textual grounds) for accepting (i) Justice Harlan's definition of a "search" as an infringement of a subjective expectation of privacy that society is prepared to recognize as reasonable, (ii) the Warrant Requirement and Probable Cause Requirement (according to which searches and seizures without a warrant or probable cause are presumptively unreasonable), and (iii) the Exclusionary Rule (according to which any evidence obtained in violation of a person’s fourth …

Universal Jurisdiction And Drug Trafficking: A Tool For Fighting One Of The World's Most Pervasive Problems , Anne H. Geraghty

ExpressO

Universal jurisdiction allows any state to exercise jurisdiction to prosecute a suspect wherever he is found, regardless of the location of his crimes, his nationality, or any other contacts with the prosecuting state. This article proposes that the United States and the international community should take two major steps toward embracing universal jurisdiction as a possible means of combatting drug trafficking. First, states should adopt an additional protocol to the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances clearly establishing universal jurisdiction for drug trafficking and thereby filling jurisdictional gaps in existing treaty law. Second, …

Barbarians At The Gates: A Post-September 11th Proposal To Rationalize The Laws Of War, William C. Bradford

ExpressO

My article, Barbarians at the Gates: A Proposal to Rationalize the Laws of War.  The piece proposes that in the War on Terror a new approach to the laws of war is necessary to harmonize the functional purpose of the law of war with the nature of the threat presented by terrorism to civilization.

Freedom From Fear: Prosecuting The Iraqi Regime For The Use Of Chemical Weapons, Margaret A. Sewell

ExpressO

Since the recent war with Iraq, there is a lingering question as to how to prosecute Saddam Hussein (if captured) and the Iraqi regime for their past atrocities, particularly, the use of chemcial weapons against Iran during the Iran-Iraq War and the Kurds. This article provides a background of the crimes committed by the Iraqi regime, a discussion and recommendation of the various proseution fora, as well as a presentation of the evidence that can be used in a prosecution.

The Last Line Of Defense: The Doctrine Of Command Responsibility, Gender Crimes In Armed Conflict, And The Kahan Report (Sabra & Shatilla), Sherrie L. Russell-Brown

ExpressO

“THE LAST LINE OF DEFENSE” addresses using the doctrine of command responsibility - the doctrine according to which military and non-military leaders can be held individually criminally responsible for the crimes committed by their subordinates - before the International Criminal Court (ICC) as a way to prevent gender crimes in armed conflict. The prevention of gender crimes in armed conflict is an important issue for a variety of reasons. One extremely important reason is the connection that the United Nations has cited between the AIDS pandemic in Sub-Saharan Africa and rape in armed conflict. In addition, in the August 25, …

Toward A Criminal Law For Cyberspace: Distributed Security, Susan Brenner

ExpressO

The article analyzes the structure and evolution of the current, traditional model of law enforcement and explains why this model is not an effective means of addressing computer-facilitated criminal activity. It begins by analyzing the operation of rules in collective systems composed of biological or artificial entities; it explains that every such system utilizes basic, constitutive rules to maintain both internal and external order. The article explains that intelligence has a profound effect upon a system’s ability to maintain internal order. Intelligence creates the capacity for deviant behavior, i.e., the refusal to abide by constitutive rules, and this requires the …

Marital Immunity, Intimate Relationships, And Improper Inferences: A New Law On Sexual Offenses By Intimates , Michelle J. Anderson

Working Paper Series

Today, to one degree or another, marital immunity for sexual offenses persists in over half the states. Underlying the marital rape immunity has been the assumption that when a woman enters into a marriage, she is giving her ongoing consent to sexual intercourse. Professor Michelle Anderson argues that states must abolish this immunity to make the law formally neutral on the marital status of the parties. However, Professor Anderson argues, such formal neutrality is insufficient. The ideology of ongoing consent underlying the marital rape immunity has infected the way the legal system treats sexual offenses among intimates who are not …

The Conviction Of Andrea Yates: A Narrative Of Denial, Sherry F. Colb

Rutgers Law School (Newark) Faculty Papers

This piece discusses the case of Andrea Yates, the woman who confessed to drowning her five children to death and was subsequently convicted of murder (though the conviction has since been overturned). In this piece, Colb contends that Andrea Yates was convicted because of the jurors’ emotional/psychological response to the possibility that post-partum psychosis could cause an otherwise decent person to commit such brutal acts. As a symptom of denial, Colb argues, the jury rejected the insanity defense and thereby reassured itself that only evil people could do what Yates did. If that were the case, then it would be …

The Evolution Of The United Nations Position On Terrorism: From Exempting National Liberation Movements To Criminalizing Terrorism Wherever And By Whomever Committed, Malvina Halberstam

Articles

No abstract provided.

Harris, Ring, And The Future Of Relevant Conduct Sentencing, Kyron J. Huigens

Articles

No abstract provided.

What Is And Is Not Pathological In Criminal Law, Kyron J. Huigens

Articles

No abstract provided.

Homicide In Aretaic Terms, Kyron J. Huigens

Articles

No abstract provided.

Reviving Tocqueville's America: The Rehnquist Court's Jurisprudence Of Social Discovery, John O. Mcginnis

Articles

This Article offers a retrospective on the Rehnquist Court. It argues that the Rehnquist Court has been pursuing a coherent jurisprudence that invigorates decentralization and the private ordering of social norms that Alexis De Tocqueville celebrated in Democracy in America as being the essence of the social order generated by our original Constitution. In four disparate areas-federalism, freedom of association, the religion clauses, and the balance of power between juries and judges-the Court is helping sustain a civil order that bubbles up from state governments or from citizens voluntarily gathered together or randomly selected. The Article is the first to …

Juries, Drug Laws & Sentencing (Symposium), Nancy S. Marder

All Faculty Scholarship

No abstract provided.

Witness Coaching By Prosecutors, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Given its controversial nature, one would expect the practice and ethics of witness coaching to have attracted close scrutiny by courts and commentators. Interestingly, however, the subject has received relatively modest attention. A handful of judicial and ethics opinions have discussed superficially the subject of witness preparation and coaching. Practitioner manuals typically offer general guidance on how to prepare witnesses, and occasionally address tactical and ethical issues involved in coaching. Scholarly commentary has examined the ethical limits of witness preparation, particularly by differentiating acceptable techniques from improper techniques, which promote false or misleading testimony. In addition, popular culture occasionally has …

The Writ Of Habeas Corpus, Donald E. Wilkes Jr.

Scholarly Works

A fundamental legal safeguard of freedom and the most important English common law writ, the writ of habeas corpus is a court order commanding that an imprisoned person be personally produced in court and that an explanation be provided as to why that person is detained. The writ of habeas corpus provides a judicial remedy for enforcing a fundamental individual right, the right to personal liberty, which may be defined as the right to be free of physical restraint that is not justified by law. Whenever imprisonment violates a constitutional or fundamental right, there is an infringement of the right …

Street Crime, Corporate Crime, And Theories Of Punishment: A Response To Brown, Kyron J. Huigens

Articles

In this response to Darryl Brown's important article, Street Crime, Corporate Crime, and the Contingency of Criminal Liability, Professor Huigens argues that Brown has chosen the wrong theory of punishment on which to rest his case for a more regulatory, less punitive, approach to street crime. Brown has chosen the best, most sophisticated consequentialist theory of punishment, as developed principally by Dan Kahan. However, consequentialist punishment theory of any kind has a significant drawback: it has no plausible conception of criminal fault. As a result, Brown is constrained to argue that the language of desert and retribution should be muted …

Solving The Apprendi Puzzle, Kyron Huigens

Articles

No abstract provided.

The Prosecutor's Duty To Truth, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Article discusses the prosecutor's duty to refrain from conduct that impedes the search for truth. A prosecutor may impede the truth-finding process in several ways: (1) distorting the truth by attacking the defendant's character, misleading and misrepresenting facts, and engaging in inflammatory conduct; (2) subverting the truth by making false statements and presenting false evidence; (3) suppressing the truth by failing to disclose potentially truth-enhancing evidence or obstructing defense access to potentially truth-enhancing evidence; and (4) other truth-disserving conduct that exploits defense counsel's misconduct and mistakes and prevents introduction of potentially truth-serving defenses. Part I also …

Child Witnesses And Procedural Fairness, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Professor Gershman's Article notes that courts and lawmakers have changed procedural and evidentiary rules to protect child witnesses in child sexual abuse cases. Gershman discusses how courts apply the changed rules with careful scrutiny in an effort to ensure that the interests of the child witness and the accused defendant are appropriately balanced.

Litigation In The United States And Mexico: A Comparative Overview, Robert M. Kossick, Jr.

University of Miami Inter-American Law Review

No abstract provided.

Breaking The Code Of Silence: Rediscovering "Custom" In Section 1983 Municipal Liability, Myriam E. Gilles

Articles

No abstract provided.

Panel Two Commentary, Marci A. Hamilton

Articles

No abstract provided.

Rethinking The Penalty Phase, Kyron Huigens

Articles

This article argues that the chaos of the US Supreme Court’s death penalty jurisprudence can be sorted with the use of a single point of clarification. That jurisprudence uses the term “culpability” – and similar terms, such as desert, responsibility, and blameworthiness – without regard to a critical ambiguity. We use “culpability” to refer to fault in wrongdoing, as reflected in “culpability elements” such as purpose or recklessness. We also use culpability to refer to eligibility for punishment, which is at issue in the defenses of insanity or minority. Death sentencing is structured around aggravating and mitigating factors, but aggravation …

The Constitutional Authority Of The Federal Government In State Criminal Proceedings That Involve U.S. Treaty Obligations Or Affect U.S. Foreign Relations, Malvina Halberstam

Articles

No abstract provided.

Mental Culpability And Prosecutorial Misconduct, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This Article argues that a prosecutor's intent is always relevant to the courts' analysis of misconduct, and that the courts should always consider a prosecutor's intent in determining whether a rule was violated and whether the verdict was prejudiced. Part II of this Article examines the use of the objective test to analyze a prosecutor's trial conduct. Part II offers several reasons courts give for avoiding inquiry into a prosecutor's mental culpability, analyzes those reasons, and concludes that although the application of an objective test is sufficient to correct misconduct in some instances, it does not foreclose application of a …