Criminal Procedure Commons^™

Brady, Arkansas Rule 17.1, And Disclosure Of Scientific Evidence And Expert Opinion, J. Thomas Sullivan

University of Arkansas at Little Rock Law Review

The United States Constitution as well as state procedural rules require prosecutorial authorities to disclose evidence to the defense as a means for ensuring fairness in the prosecution of individuals charged with criminal offenses. When prosecutorial authorities fail to disclose evidence as required, the integrity of the criminal justice system is threatened and the defense is unable to adequately prepare for trial. This threat is illustrated and magnified by the substantiation of prosecutorial misconduct claims in high profile trials where prosecutors have been unable to resist the temptation not to disclose evidence that could damage the prosecution's case, or, where …

Due Process In Islamic Criminal Law, Sadiq Reza

Articles & Chapters

Rules and principles of due process in criminal law—how to, and how not to, investigate crime and criminal suspects, prosecute the accused, adjudicate criminal cases, and punish the convicted—appear in the traditional sources of Islamic law: the Quran, the Sunna, and classical jurisprudence. But few of these rules and principles are followed in the modern-day practice of Islamic criminal law. Rather, states that claim to practice Islamic criminal law today mostly follow laws and practices of criminal procedure that were adopted from European nations in the twentieth century, without reference to the constraints and protections of Islamic law itself. To …

Due Process In Islamic Criminal Law, Sadiq Reza

Faculty Scholarship

Rules and principles of due process in criminal law--how to, and how not to, investigate crime and criminal suspects, prosecute the accused, adjudicate criminal cases, and punish the convicted--appear in the traditional sources of Islamic law: the Quran, the Sunna, and classical jurisprudence. But few of these rules and principles are followed in the modern-day practice of Islamic criminal law. Rather, states that claim to practice Islamic criminal law today mostly follow laws and practices of criminal procedure that were adopted from European nations in the twentieth century, without reference to the constraints and protections of Islamic law itself. To …

Court Of Appeals Of New York - People V. White, Rosalinde Casalini

Touro Law Review

No abstract provided.

Appellate Division, First Department - People V. Boyd, Joseph M. D'Amico

Touro Law Review

No abstract provided.

Madness Alone Punishes The Madman: The Search For Moral Dignity In The Court's Competency Doctrine As Applied In Capital Cases, J. Amy Dillard

All Faculty Scholarship

The purposes of the competency doctrine are to guarantee reliability in criminal prosecutions, to ensure that only those defendants who can appreciate punishment are subject to it, and to maintain moral dignity, both actual and apparent, in criminal proceedings. No matter his crime, the “madman” should not be forced to stand trial. Historically, courts viewed questions of competency as a binary choice, finding the defendant either competent or incompetent to stand trial. However, in Edwards v. Indiana, the Supreme Court conceded that it views competency on a spectrum and offered a new category of competency — borderline-competent. The Court held …

Have We Come Full Circle? Judicial Sentencing Discretion Revived In Booker And Fanfan, Sandra D. Jordan

Pepperdine Law Review

The much anticipated Supreme Court decision in United States v. Booker and Fanfan has both invalidated the mandatory nature of the federal Sentencing Guidelines as well as restored judicial discretion for federal judges. With the Booker decision there is a renewed opportunity to correct some of the imbalance that came about as a result of the mandatory guidelines and the sentencing policies of the past twenty years. Booker has implications for all future sentencing as the power between the judiciary and the jury has been realigned and the power of the government has been reduced. Sentencing cannot accomplish legitimate goals …

The Rise, Decline And Fall(?) Of Miranda, Yale Kamisar

Articles

There has been a good deal of talk lately to the effect that Miranda1 is dead or dying-or might as well be dead.2 Even liberals have indicated that the death of Miranda might not be a bad thing. This brings to mind a saying by G.K. Chesterton: "Don't ever take a fence down until you know the reason why it was put up."4

The Master Mason: How Professor Baldus Built A Bridge From Learning To Law And The Legacy Of Equal Justice He Leaves Behind, James E. Baker

Georgetown Law Faculty Publications and Other Works

These are Chief Judge Baker’s remarks eulogizing the late Professor David Baldus. Chief Judge Baker observes that Professor Baldus was an extraordinary educator-lawyer who mastered the fields of social science and statistics. He adds that Professor Baldus was diligent in his research and strived to make the law accessible. Chief Judge Baker discusses how Professor Baldus’s research on the death penalty and proportionality review successfully bridged the law and learning, without ever losing sight of compassion.

And Death Shall Have No Dominion: How To Achieve The Categorical Exemption Of Mentally Retarded Defendants From Execution, J. Amy Dillard

University of Richmond Law Review

No abstract provided.

And Death Shall Have No Dominion: How To Achieve The Categorical Exemption Of Mentally Retarded Defendants From Execution, J. Amy Dillard

All Faculty Scholarship

This article examines the Court’s categorical exclusion of mentally retarded defendants from execution and explores how trial courts should employ procedures to accomplish heightened reliability in the mental retardation determination; it maintains that if a mentally retarded defendant is subjected to a death sentence then the Atkins directive has been ignored. To satisfy the Atkins Court’s objective of protecting mentally retarded defendants from the “special risk of wrongful execution,” the article explores whether trial courts should engage in a unified, pre-trial competency assessment in all capital cases where the defendant asserts mental retardation as a bar to execution and how …

Brady-Based Prosecutorial Misconduct Claims, Buckley, And The Arkansas Coram Nobis Remedy, J. Thomas Sullivan

Law Faculty Scholarship

No abstract provided.

International Law And United States Policy Issues Arising From The United States' Conflict With Al Qaeda, Gregory S. Mcneal

University of Arkansas at Little Rock Law Review

No abstract provided.

Litigation Strategies For Dealing With The Indigent Defense Crisis, Eve Brensike Primus

Articles

The indigent defense delivery system in the United States is in a state of crisis. Public defenders routinely handle well over 1,000 cases a year, more than three times the number of cases that the American Bar Association says one attorney can handle effectively. As a result, many defendants sit in jail for months before even speaking to their court-appointed lawyers. And when defendants do meet their attorneys, they are often disappointed to learn that these lawyers are too overwhelmed to provide adequate representation. With public defenders or assigned counsel representing more than 80% of criminal defendants nationwide, the indigent …

A Structural Vision Of Habeas Corpus, Eve Brensike Primus

Articles

As scholars have recognized elsewhere in public law, there is no hermetic separation between individual rights and structural or systemic processes of governance. To be sure, it is often helpful to focus on a question as primarily implicating one or the other of those categories. But a full appreciation of a structural rule includes an understanding of its relationship to individuals, and individual rights can both derive from and help shape larger systemic practices. The separation of powers principle, for example, is clearly a matter of structure, but much of its virtue rests on its promise to help protect the …

Prosecuting Torturers, Protecting "Child Molesters": Toward A Power Balance Model Of Criminal Process For International Human Rights Law, Mykola Sorochinsky

Michigan Journal of International Law

In the age of terrorism, human rights law globally suffers substantial setbacks. However, at the regional level, human rights law is now more relevant than ever. More cases are decided each year by regional human rights tribunals, particularly in Europe. More importantly, human rights law affects more areas of domestic legal systems than ever before-from trademark law to limits on corporal punishment of children. This growing complexity presents two challenges: first, the challenge of comprehension (or the increasing need to make sense of the ever-expanding case law in many substantive areas) and second, the challenge of responsibility (or the fact …

How Much Does It Matter Whether Courts Work Within The "Clearly Marked" Provisions Of The Bill Of Rights Or With The "Generalities" Of The Fourteenth Amendment?, Yale Kamisar

Articles

We know that it really mattered to Justice Hugo Black. As he made clear in his famous dissenting opinion in Adamson v. California] Black was convinced that the purpose of the Fourteenth Amendment was to apply the complete protection of the Bill of Rights to the states.2 And, as he also made plain in his Adamson dissent, he was equally convinced that working with the "specific" or "explicit" guarantees of the first Eight Amendments would furnish Americans more protection than would applying the generalities of the Fourteenth Amendment.3

Conceptualizations Of Legalese In The Course Of Due Process, From Arrest To Plea Bargain: The Perspectives Of Disadvantaged Offenders, Shiv Narayan Persaud

Journal Publications

"Equal protection" and "due process of law" are constitutional guarantees tenaciously embraced by all Americans.' While numerous studies focused on how these guarantees play out in the lives of offenders, few sought to examine these guarantees from the standpoint of offenders, particularly those from disadvantaged socio-economic backgrounds. Guaranteed under the Fourteenth Amendment of the U.S. Constitution, the Equal Protection Clause makes clear, in part, that, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due …

Deconstructing The Bill Of Rights In Administrative Adjudication--Enfranchising Constitutional Principles In The Process, Shiv Narayan Persaud

Journal Publications

With the increased tendency toward governmental oversight in modern society, Congress deemed it fit to delegate some of its lawmaking authority to the other branches of government. While this action has effectuated the promulgation of regulations and resolution of disputes through adjudicatory proceedings, the area of administrative law continues to be challenging, especially where it poses concerns regarding an individual’s basic rights. This Article will focus discussion on some fundamental issues relating to the administrative process and explore the ramifications on the individual.

Taking Strickland Claims Seriously, Stephen F. Smith

Journal Articles

Every criminal defendant is promised the right to the effective assistance of counsel. Whether at trial or first appeal of right, due process is violated when attorney negligence undermines the fairness and reliability of judicial proceedings. That, at least, is the black-letter law articulated in Strickland v. Washington, 466 U.S. 688 (1984). In practice, however, the right to effective representation has meant surprisingly little over the last two decades. Under the standards that emerged from Strickland, scores of defendants have received prison or death sentences by virtue of serious unprofessional errors committed by their attorneys.

This Essay canvasses a line …

‘Move On’ Orders As Fourth Amendment Seizures, Stephen E. Henderson

Faculty Articles

If a police officer orders one to move on, must the recipient comply? This article analyzes whether there is a federal constitutional right to remain, and in particular whether a police command to move on constitutes a seizure of the person for purposes of the Fourth Amendment. Although it is a close question, I conclude that the Fourth Amendment typically does not restrict a move on (MO) order, and that substantive due process only prohibits the most egregious such orders. It is a question of broad significance given the many legitimate reasons police might order persons to move on, as …

Due Process For The Global Crime Era: A Proposal, Song Richardson

Scholarly Articles in Law Reviews & Journals

This article argues that the adjudication of transnational criminal cases in the United States raises troubling questions about the government's commitment to principled criminal process standards. Concern over global crime has resulted in a criminal process that inadequately protects fairness and legitimacy norms. Over 40 years ago, in his seminal work on the domestic criminal process, Herbert Packer described two models of criminal procedure: the crime control model and the due process model. The crime control model posits that the most important function of the criminal justice system is to suppress crime. The due process model focuses on the fallibility …

Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross

Articles

Bobby Lee Holmes was convicted of a brutal rape-murder and sentenced to death. The only evidence that connected him to the crime was forensic: a palm print, and blood and fiber evidence. (Biological samples taken from the victim for two rape kits were compromised and yielded no identifiable evidence.) Holmes claimed that the state's forensic evidence was planted and mishandled, and that the rape and murder were committed by another man, Jimmy McCaw White. At a pretrial hearing three witnesses testified that they saw White near the victim's house at about the time of the crime, and four others testified …

On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar

Articles

Last year (the year I gave the talk on which this article is based) marked the fortieth anniversary of Miranda v. Arizona,' one of the most praised, most maligned-and probably one of the most misunderstood-Supreme Court cases in American history. It is difficult, if not impossible, to evaluate Miranda without looking back at the test for the admissibility of confessions that preceded it.

Toward An International Criminal Procedure: Due Process Aspirations And Limitations, Gregory S. Gordon

ExpressO

The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes. The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial …

Section 1983 Cases In The October 2004 Term, Martin A. Schwartz

Touro Law Review

No abstract provided.

The Electronic Recording Of Criminal Interrogations, Roberto Iraola

University of Richmond Law Review

Should law enforcement officers be required to record, by video or audiotape, custodial interrogations of suspects? If so, how much, the entire interrogation or just the confession? Many prosecutors and police departments maintain that a recording requirement will hamper law enforcement and discourage suspects from talking. Proponents of this measure argue that the recording of interrogations protects against false confessions, augments the effective administration of justice, and serves to improve the relationship between the public and the police.

This article generally examines the developing case law on this question. Because of the incriminating nature of confessions, the article, by way …

Sovereignty, Not Due Process: Personal Jurisdiction Over Nonresident, Alien Defendants, Austen L. Parrish

Articles by Maurer Faculty

The Due Process Clause with its focus on a defendant's liberty interest has become the key, if not only, limitation on a court's exercise of personal jurisdiction. This due process jurisdictional limitation is universally assumed to apply with equal force to alien defendants as to domestic defendants. With few exceptions, scholars do not distinguish between the two. Neither do the courts. Countless cases assume that foreigners have all the rights of United States citizens to object to extraterritorial assertions of personal jurisdiction.

But is this assumption sound? This Article explores the uncritical assumption that the same due process considerations apply …

Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders

ExpressO

In this article we present the case that the Reasonable Doubt standard is in urgent need of repair. Our research reveals that a previously-recognized phenomenon arising from vagueness of the standard is more consequential than thus far realized and creates a serious equal protection problem. We show that the only legally feasible solution to this problem is to quantify the definition of the standard. While others have examined quantified standards, we make a direct case for it and overcome previous objections to it by offering a way to make it practical and workable.

The solution we envision will require new …

Confronting Death: Sixth Amendment Rights At Capital Sentencing, John G. Douglass

Law Faculty Publications

The Court's fragmentary approach has taken pieces of the Sixth Amendment and applied them to pieces of the capital sentencing process. The author contends that the whole of the Sixth Amendment applies to the whole of a capital case, whether the issue is guilt, death eligibility, or the final selection of who lives and who dies. In capital cases, there is one Sixth Amendment world, not two. In this Article, he argues for a unified theory of Sixth Amendment rights to govern the whole of a capital case. Because both Williams and the Apprendi-Ring-Booker line of cases purport to rest …