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Criminal Procedure Commons™

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Criminal Procedure

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Articles 181 - 210 of 391

Full-Text Articles in Criminal Procedure

Diminishing Probable Cause And Minimalist Searches, Kit Kinports Jan 2009

Diminishing Probable Cause And Minimalist Searches, Kit Kinports

Faculty Scholarship

This paper comments on recent Supreme Court opinions that have used phrases such as "reasonable belief" and "reason to believe" when analyzing intrusions that generally require proof of probable cause. Historically, the Court used these terms as shorthand references for both probable cause and reasonable suspicion. While this lack of precision was unobjectionable when the concepts were interchangeable, that has not been true since Terry v. Ohio created a distinction between the two standards. When the Justices then resurrect these terms without situating them in the dichotomy between probable cause and reasonable suspicion, it is not clear whether they are …


Judges Judging Judicial Candidates: Should Currently Serving Judges Participate In Commissions To Screen And Recommend Article Iii Candidates Below The Supreme Court Level?, Mary Clark Jan 2009

Judges Judging Judicial Candidates: Should Currently Serving Judges Participate In Commissions To Screen And Recommend Article Iii Candidates Below The Supreme Court Level?, Mary Clark

Scholarly Articles in Law Reviews & Journals

In the lead-up to the 2008 presidential election, the American Bar Association (ABA), among others, called upon the next president to reform the federal judicial selection process by using bipartisan commissions to screen and recommend Article III candidates for presidential nomination and Senate confirmation below the Supreme Court level. This proposal may well find support in the Obama administration, given the new president’s emphasis on bipartisan consensus-building and transparency of government operations. This Article addresses one question that the ABA and others have not: Should currently serving judges participate in bi-partisan commissions to screen and recommend Article III candidates below …


The Women's Protocol To The African Charter And Sexual Violence In The Context Of Armed Conflict Or Other Mass Atrocity, Susana Sacouto, Katherine A. Cleary Jan 2009

The Women's Protocol To The African Charter And Sexual Violence In The Context Of Armed Conflict Or Other Mass Atrocity, Susana Sacouto, Katherine A. Cleary

Scholarly Articles in Law Reviews & Journals

No abstract provided.


Circumventing Congress: How The Federal Courts Opened The Door To Impeaching Criminal Defendants With Prior Convictions, Jeffrey Bellin Dec 2008

Circumventing Congress: How The Federal Courts Opened The Door To Impeaching Criminal Defendants With Prior Convictions, Jeffrey Bellin

Faculty Publications

This Article spotlights the flawed analytical framework at the heart of the federal courts’ approach to one of the most controversial trial practices in American criminal jurisprudence — the admission of prior convictions to impeach the credibility of defendants who testify. As the Article explains, the flawed approach is a byproduct of the courts’ reliance on a five-factor analytical framework to implement the governing legal standard enacted by Congress in Federal Rule of Evidence 609. Tracing the evolution of the fivefactor framework from its roots in pre-Rule 609 case law, the Article demonstrates that the courts’ reinterpretation of the framework …


Get In The Game Or Get Out Of The Way: Fixing The Politics Of Death, Adam M. Gershowitz Sep 2008

Get In The Game Or Get Out Of The Way: Fixing The Politics Of Death, Adam M. Gershowitz

Faculty Publications

No abstract provided.


The Significance (If Any) For The Federal Criminal Justice System Of Advances In Lie Detector Technology, Jeffrey Bellin Sep 2008

The Significance (If Any) For The Federal Criminal Justice System Of Advances In Lie Detector Technology, Jeffrey Bellin

Faculty Publications

Against a backdrop of accelerating developments in the science of lie detection certain to reopen the debate on the reliability and therefore admissibility of lie detector evidence in the federal courts, this Article examines whether the prohibition on hearsay evidence (or other evidentiary objections) will preclude admissibility of even scientifically reliable lie detector evidence. The Article concludes that the hearsay prohibition, which has been largely ignored by courts and commentators, is the primary obstacle to the future admission of scientifically valid lie detector evidence. The Article also suggests a potential solution to the hearsay problem that may allow admission of …


Expanding The Arsenal For Sentencing Environmental Crimes: Would Therapeutic Jurisprudence And Restorative Justice Work?, Carrie C. Boyd Feb 2008

Expanding The Arsenal For Sentencing Environmental Crimes: Would Therapeutic Jurisprudence And Restorative Justice Work?, Carrie C. Boyd

William & Mary Environmental Law and Policy Review

No abstract provided.


Improving Privacy Protection, But By How Much?, Steve Coughlan Jan 2008

Improving Privacy Protection, But By How Much?, Steve Coughlan

Articles, Book Chapters, & Popular Press

The discussion of reasonable expectation of privacy in R. v. M. (A.) is extremely useful. In the wake of Tessling, many courts had effectively reduced the protection offered by s. 8 based on two arguments: that what was detected was an emanation in the public domain similar to heat coming from a house, and that what was discovered merely related to informational privacy and was not part of the biographical core of such data. Justice Binnie's decision puts paid the notion that either of these arguments is a trump card. He suggests that generalizing about "emanations" is not a useful …


Arbitrary Detention: Whither - Or Wither? - Section 9, Steve Coughlan Jan 2008

Arbitrary Detention: Whither - Or Wither? - Section 9, Steve Coughlan

Articles, Book Chapters, & Popular Press

It is a remarkable fact that more than 25 years after the Canadian Charter of Rights and Freedoms came into effect, we still have no section 9 jurisprudence. It is not that there have been no decisions at all concerning the right not to be arbitrarily detained, of course, but taken in total they do not come anywhere near setting out an analytical framework. This stands in contrast to most other legal rights in the Charter. Section 7 jurisprudence has established the two-step approach to take in assessing claims under that section, including a three-step test for determining whether a …


Russia's Criminal Procedure Code Five Years Out, William Burnham, Jeffrey D. Kahn Jan 2008

Russia's Criminal Procedure Code Five Years Out, William Burnham, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

After a long delay in drafting, a new Criminal Procedure Code for Russia was passed in 2001 and went into effect in 2002. The new Code contains some striking innovations, most notably changes at the trial stage, which implement the constitutional requirements of adversarial principles. However, it also retains several throwbacks to the past, particularly its preservation of the formal pretrial investigation, during which evidence is parsed and collected in a dossier, which then dominates the trial of the case. The result is that old and new constantly contend with each other. Implementation of the new adversarial procedures is also …


Raise The Proof: A Default Rule For Indigent Defense, Adam M. Gershowitz Nov 2007

Raise The Proof: A Default Rule For Indigent Defense, Adam M. Gershowitz

Faculty Publications

Almost everyone agrees that indigent defense in America is underfunded, but workable solutions have been hard to come by. For the most part, courts have been unwilling to inject themselves into legislative budget decisions. And, when courts have become involved and issued favorable decisions, the benefits have been only temporary because once the pressure of litigation disappears so does a legislature's desire to appropriate more funding. This Article proposes that if an indigent defense system is under-funded, the state supreme court should impose a default rule raising the standard of proof to "beyond all doubt" to convict indigent defendants. The …


Pay Now, Execute Later: Why Counties Should Be Required To Post A Bond To Seek The Death Penalty, Adam M. Gershowitz May 2007

Pay Now, Execute Later: Why Counties Should Be Required To Post A Bond To Seek The Death Penalty, Adam M. Gershowitz

Faculty Publications

No abstract provided.


All Men Are (Or Should Be) Created Equal: An Argument Against The Use Of The Cultural Defense In A Post-Booker World, Elizabeth Martin Apr 2007

All Men Are (Or Should Be) Created Equal: An Argument Against The Use Of The Cultural Defense In A Post-Booker World, Elizabeth Martin

William & Mary Bill of Rights Journal

No abstract provided.


The Jurisprudence Of Punishment, Kyron Huigens Apr 2007

The Jurisprudence Of Punishment, Kyron Huigens

William & Mary Law Review

No abstract provided.


Terrorism And The New Criminal Process, John T. Parry Feb 2007

Terrorism And The New Criminal Process, John T. Parry

William & Mary Bill of Rights Journal

No abstract provided.


Justice Story Cuts The Gordian Knot Of Hung Jury Instructions, George C. Thomas Iii, Mark Greenbaum Feb 2007

Justice Story Cuts The Gordian Knot Of Hung Jury Instructions, George C. Thomas Iii, Mark Greenbaum

William & Mary Bill of Rights Journal

No abstract provided.


The Principled Exception And The Forgotten Criterion, Steve Coughlan Jan 2007

The Principled Exception And The Forgotten Criterion, Steve Coughlan

Articles, Book Chapters, & Popular Press

The principled exception to the hearsay rule is routinely described as being settled by the "twin criteria" of necessity and reliability. In fact a third criterion is also — or at least ought to be — at play: that admitting the evidence through hearsay would not undermine any other rule of evidence. The Court has made reference to this third criterion in the past, but it has largely been ignored in both Supreme Court and lower court decisions. The recent judgement in Couture depends in a limited way on that question, and so it marks an opportunity to articulate the …


The (Futile) Search For A Common Law Right Of Confrontation: Beyond Brasier's Irrelevance To (Perhaps) Relevant American Cases, Randolph N. Jonakait Jan 2007

The (Futile) Search For A Common Law Right Of Confrontation: Beyond Brasier's Irrelevance To (Perhaps) Relevant American Cases, Randolph N. Jonakait

Articles & Chapters

After Crawford v. Washington asserted that the Confrontation Clause constitutionalized the common law right of confrontation, cases have been suggested that illustrate that right. This short essay considers whether the 1779 English case Rex v. Brasier is such a decision, as some contend. The essay concludes that Brasier says nothing about the right of confrontation and points to a comparable framing-era, American case that indicates that general rules about hearsay and confrontation were not at issue. The essay maintains that if the historical understandings of the right of confrontation and hearsay are to control the Confrontation Clause, then framing-era, American …


Imposing A Cap On Capital Punishment, Adam M. Gershowitz Jan 2007

Imposing A Cap On Capital Punishment, Adam M. Gershowitz

Faculty Publications

No abstract provided.


The Jurisdictional Heritage Of The Grand Jury Clause, Roger A. Fairfax Dec 2006

The Jurisdictional Heritage Of The Grand Jury Clause, Roger A. Fairfax

Scholarly Articles in Law Reviews & Journals

No abstract provided.


Let The Jury Do The Waive: How Apprendi V. New Jersey Applies To Juvenile Transfer Proceedings, Daniel M. Vannella Nov 2006

Let The Jury Do The Waive: How Apprendi V. New Jersey Applies To Juvenile Transfer Proceedings, Daniel M. Vannella

William & Mary Law Review

No abstract provided.


Section 5: Criminal Procedure, Institute Of Bill Of Rights Law, William & Mary Law School Sep 2006

Section 5: Criminal Procedure, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


The Silent Criminal Defendant And The Presumption Of Innocence: In The Hands Of Real Jurors, Is Either Of Them Safe, Mitchell J. Frank, Dawn Broschard Jul 2006

The Silent Criminal Defendant And The Presumption Of Innocence: In The Hands Of Real Jurors, Is Either Of Them Safe, Mitchell J. Frank, Dawn Broschard

Faculty Scholarship

No abstract provided.


The War On Terror, Local Police, And Immigration Enforcement: A Curious Tale Of Police Power In Post-9/11 America, David A. Harris May 2006

The War On Terror, Local Police, And Immigration Enforcement: A Curious Tale Of Police Power In Post-9/11 America, David A. Harris

ExpressO

In post-9/11 America, no goal ranks higher for law enforcement than preventing the next terrorist attack. This is as true for local police departments as it is for the FBI, and police in cities. At the same time, many advocates of tightening U.S. immigration enforcement have recast their efforts as national security and anti-terrorism campaigns. Thus, these advocates and their many allies in the current administration and in Congress have called for local police to become involved in enforcing immigration law. Officials in both the executive and legislative branches of the federal government have taken a number of actions designed …


Entrapment By Numbers, Dru Stevenson Apr 2006

Entrapment By Numbers, Dru Stevenson

ExpressO

This essay analyzes emerging trends in entrapment law, and is the first to describe the declining numbers of reported cases that involve the entrapment defense. This phenomenon is attributed to decreasing levels of uncertainty in the rules pertaining to the defense, and to discreet procedural issues. The shifting degrees of certainty in penal rules, which have become increasingly mechanical and mathematical over time, are shown to disfavor certain defendants inherently, to the point of being a snare or source of “entrapment” themselves for these individuals. (Published in 16 J. Law & Pub. Pol’y 1 2005)


Misnamed, Misapplied, And Misguided: Clarifying The State Of Sentencing Entrapment And Proposing A New Conception Of The Doctrine, Jess D. Mekeel Apr 2006

Misnamed, Misapplied, And Misguided: Clarifying The State Of Sentencing Entrapment And Proposing A New Conception Of The Doctrine, Jess D. Mekeel

William & Mary Bill of Rights Journal

No abstract provided.


Common Law Police Powers And Exclusion Of Evidence: The Renaissance Of Good Faith, Steve Coughlan Jan 2006

Common Law Police Powers And Exclusion Of Evidence: The Renaissance Of Good Faith, Steve Coughlan

Articles, Book Chapters, & Popular Press

Canadian courts have become far more willing in recent years to rely on the common law as a source of new police powers. Where once the test from R. v. Waterfield was an exception and an afterthought to what was otherwise the general rule of insistence upon statutory sources for police powers, more recently that test seems to be in the forefront of judges' minds as they decide cases. That 1963 British decision has been cited by Canadian courts roughly as often in the last eight years as in the first 35 years after it was decided. Since 1999 the …


The Crisis In Indigent Defense: A National Perspective, Mary Sue Backus, Paul Marcus Jan 2006

The Crisis In Indigent Defense: A National Perspective, Mary Sue Backus, Paul Marcus

Faculty Publications

No abstract provided.


Procuring Guilty Pleas For International Crimes: The Limited Influence Of Sentencing Discounts, Nancy Amoury Combs Jan 2006

Procuring Guilty Pleas For International Crimes: The Limited Influence Of Sentencing Discounts, Nancy Amoury Combs

Faculty Publications

International tribunals prosecuting those responsible for genocide, crimes against humanity, and war crimes face many of the same resource constraints that bedevil national criminal justice systems. Consequently, international tribunals have begun to utilize various procedural devices long used by national prosecutors to speed case dispositions. One such procedural device is the guilty plea. National prosecutors induce criminal defendants to plead guilty and waive their rights to trial through a process of plea bargaining; that is, by offering defendants sentencing concessions in exchange for their guilty pleas. International prosecutors who seek to engage in plea bargaining, however, face a host of …


White-Collar Plea Bargaining And Sentencing After Booker, Stephanos Bibas Dec 2005

White-Collar Plea Bargaining And Sentencing After Booker, Stephanos Bibas

William & Mary Law Review

No abstract provided.