Criminal Procedure Commons^™

Law School News: Seeing Justice Up Close 10-22-2025, Alli-Michelle Conti

Life of the Law School (1993- )

No abstract provided.

Responding To Police Perjury, David R. Katner

Cleveland State Law Review

The way in which defense lawyers phrase their challenges in criminal proceedings where police witnesses are thought to have committed perjury might place decisionmakers in the awkward position of unintentionally or intentionally coming to the aid of the witnesses who are unable to defend themselves during closing arguments. This article proposes a shift in the paradigm of how defense counsel characterize and handle testimony that seems untruthful, without having to engage in tactics that intend to be disrespectful to all police officers, let alone to the witnesses in the trial. Creating a continuum from absolute truthfulness to absolute untruthfulness and …

The Truth Should Set You Free: The Case For Removing State Knowledge Requirements From False Testimony Standards, Alexa Pietrowsk

Cardozo Law Review

False testimony claims are an increasinglypopular vehicle in a handful ofstates through which petitioners can challenge unconstitutional criminal convictions. Successful false testimony claims grant petitioners access to remedies guaranteed by the Due Process Clause and overturn offending convictions, giving individuals access to new trials or similar relief But like many post-conviction standards, false testimony is evaluated differently from state to state, producing disparate results. While every state's standard requires that the testimony used at trial be proven both false and material to the petitioner's conviction, states diverge as to whether petitioners must show that a state actor-usually prosecutors or police-knew …

The State Of The Medical Cannabis Industry And Enforcement Against Illegal Cannabis Shops, Chaz Brooks

Legislative Testimony & Comments

My name is Professor Chaz Brooks, and I am joined by several of my students who have assisted on this project, Khumar Gasimzada, Christian Nunez, and Olivia Woodmansee. Professor Priya Baskaran and I co-lead the Entrepreneurship Law Clinic at American University Washington College of Law, where we provide legal support to small businesses and entrepreneurs in Washington, D.C. (the “District” or “D.C.”). Over the past year, we have worked closely with Sean and Lashonia Thompson-El of DC Native Botanicals who received a Conditional Social Equity License for a cultivation center in October 2023. Today, we testify not only on their …

Virtual Court Proceedings And Their Effect On Criminal Defendants’ Rights, Hunter J. Phillips

Marquette Intellectual Property & Innovation Law Review

This Comment examines whether implementing virtual evidentiary proceedings diminishes a criminal defendant’s Constitutional rights. Part One introduces the Confrontation Clause and judicial interpretations that shape its modern legal view.

Part One also introduces the importance of face-to-face testimony and how the Confrontation Clause is founded upon that principle. Part One concludes by offering psychological research that highlights the im-portance of face-to-face proceedings that allow for effective criminal proceedings. Part Two introduces legislation that hinders defendants’ Confrontation rights and critically analyzes that legislation. Part Three argues for the abandonment of virtual criminal proceedings and highlights other factors that should be considered …

Guess Who?: First-Time In-Court Identifications And Due Process, Natalie Beers

Washington and Lee Law Review

Juries believe eyewitnesses. When an identifying eyewitness takes the stand and points to a defendant in a courtroom, the jury is more likely to render a guilty verdict. But how reliable is that identification? What if the eyewitness is on the stand identifying a perpetrator for the first time, in the court room, rather than at the police station with a lineup or photo array? How do those suggestive circumstances implicate a criminal defendant’s due process rights?

First-time in-court identifications are inherently suggestive. While the Supreme Court has acknowledged the suggestive nature of similar identifications, it did not directly address …

Crawford At 20: An Introduction To The Symposium, Richard D. Friedman

University of Michigan Journal of Law Reform

The twentieth anniversary of Crawford v. Washington provides an ideal opportunity to reflect on the right of a criminal defendant to be confronted with the witnesses against him – on its origins and recent developments, current issues that it presents, paths that it may take, and other changes that it may generate. I am grateful to the Journal of Law Reform for organizing this symposium and to all the participants for having made it a success. In Section 1 of this introductory essay, I offer some comments on the origins, scope, and purpose of the confrontation right. Section 2 discusses …

A Proposal To Replace The Hearsay Rules, Richard D. Friedman

University of Michigan Journal of Law Reform

This essay proposes a set of rules to replace entirely the 800 series of the Federal Rules of Evidence, the hearsay rules, with a very different, and relatively compact, set of procedural rules. (The current hearsay rules run over 3000 words; the proposed rules run under 1000.) The change will improve truth-determination, make trials more efficient, and better protect the rights of criminal defendants and other parties. There would, of course, be some adjustment period for lawyers and judges as they get accustomed to a different system, but I am confident that it would soon be easier to administer than …

The Confrontation Right, Richard D. Friedman

Book Chapters

This chapter examines the right of criminal defendants to be confronted with the witnesses against them. It first provides an overview of the nature, purposes, and costs of the confrontation right before discussing the history of the confrontation right. It then considers a range of issues that may arise in any jurisdiction (or in some cases, any common law jurisdiction) with regard to the confrontation right, using as a touchstone the current status of the right in the United States. In particular, it describes situations in which the question of whether a statement is testimonial typically arises, such as fresh …

Cabining Judicial Discretion Over Forensic Evidence With A New Special Relevance Rule, Emma F.E. Shoucair

Michigan Law Review

Modern forensic evidence suffers from a number of flaws, including insufficient scientific grounding, exaggerated testimony, lack of uniform best practices, and an inefficacious standard for admission that regularly allows judges to admit scientifically unsound evidence. This Note discusses these problems, lays out the current landscape of forensic science reform, and suggests the addition of a new special relevance rule to the Federal Rules of Evidence (and similar rules in state evidence codes). This proposed rule would cabin judicial discretion to admit non-DNA forensic evidence by barring prosecutorial introduction of such evidence in criminal trials absent a competing defense expert or …

Criminal Law And Procedure, Aaron J. Campbell

University of Richmond Law Review

This article aims to give a succinct review of notable criminal

law and procedure cases decided by the Supreme Court of Virginia

and the Court of Appeals of Virginia during the past year. Instead

of covering every ruling or rationale in these cases, the article

focuses on the "take-away" of the holdings with the most

precedential value. The article also summarizes noteworthy

changes to criminal law and procedure enacted by the 2017 Virginia

General Assembly.

"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain

Maine Law Review

Young children are frequently precluded from testifying at trial on the grounds of incompetency because they cannot answer questions about abstract concepts regarding “truth” and “lies.” In this situation, should the child’s earlier, out-of-court statements disclosing the abuse and identifying the abuser also be inadmissible? The stakes are huge. If young children cannot testify, and their out-of-court statements are precluded, they simply become safe prey, unprotected by the judicial system. The pivotal question becomes, are there procedures that can ensure fairness both to children and to their alleged abusers? This article argues that a child’s testimonial incapacity at trial ought …

Videoconferencing: Not A Foreign Language To International Courts, Riley A. Williams

Oklahoma Journal of Law and Technology

No abstract provided.

Disentangling Miranda And Massiah: How To Revive The Sixth Amendment Right To Counsel As A Tool For Regulating Confession Law, Eve Brensike Primus

Articles

Fifty years after Miranda v. Arizona, many have lamented the ways in which the Burger, Rehnquist, and Roberts Courts have cut back on Miranda's protections. One underappreciated a spect of Miranda's demise is the way it has affected the development of the pretrial Sixth Amendment right to counsel guaranteed by Massiah v. United States. Much of the case law diluting suspects' Fifth Amendment Miranda rights has bled over into the Sixth Amendment right to counsel cases without consideration of whether the animating purposes of the Massiah pretrial right to counsel would support such an importation. This development is unfortunate …

Bias In Blue: Instructing Jurors To Consider The Testimony Of Police Officer Witnesses With Caution, Vida B. Johnson

Pepperdine Law Review

Jurors in criminal trials are instructed by the judge that they are to treat the testimony of a police officer just like the testimony of any other witness. Fact-finders are told that they should not give police officer testimony greater or lesser weight than any other witness they will hear from at trial. Jurors are to accept that police are no more believable or less believable than anyone else. Jury instructions regarding police officer testimony stand in contrast to the instructions given to jurors when a witness with a legally recognized interest in the outcome of the case has testified. …

Informant Witnesses And The Risk Of Wrongful Convictions, Jessica A. Roth

Articles

Several studies in the last two decades have revealed that false criminal informant testimony is a leading factor in wrongful convictions, along with false confessions, eyewitness misidentification, and faulty forensic science. Although a great deal more remains to be done, many jurisdictions have implemented evidence-based reforms to these last three categories of evidence. Policy about criminal informants, however, seems to be stubbornly stagnant, and relevant social science is virtually nonexistent. This Article questions the relative lack of attention to informant testimony and suggests that the dangers posed by informant testimony are both greater and different than previously thought. Unlike much …

Crossing The Line: Daubert, Dual Roles, And The Admissibility Of Forensic Mental Health Testimony, Sara Gordon

Scholarly Works

Psychiatrists and other mental health professionals often testify as forensic experts in civil commitment and criminal competency proceedings. When an individual clinician assumes both a treatment and a forensic role in the context of a single case, however, that clinician forms a dual relationship with the patient—a practice that creates a conflict of interest and violates professional ethical guidelines. The court, the parties, and the patient are all affected by this conflict and the biased testimony that may result from dual relationships. When providing forensic testimony, the mental health professional’s primary duty is to the court, not to the patient, …

Criminal Law And Procedure, Aaron J. Campbell

University of Richmond Law Review

No abstract provided.

Legal Beagle's Blog Archive For November 2015, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

The Child Quasi-Witness, Richard D. Friedman, Stephen J. Ceci

Articles

This Essay provides a solution to the conundrum of statements made by very young children and offered against an accused in a criminal prosecution. Currently prevailing doctrine allows one of three basic outcomes. First, in some cases the child testifies at trial. But this is not always feasible, and when it is, cross-examination is a poor method for determining the truth. Second, evidence of the child's statement may be excluded, which denies the adjudicative process of potentially valuable information. Third, the evidence may be admitted without the child testifying at trial, which leaves the accused with no practical ability to …

Virginia's Gap Between Punishment And Culpability: Re-Examining Self-Defense Law And Battered Women's Syndrome, Kendall Hamilton

University of Richmond Law Review

No abstract provided.

Supreme Court, New York County, Hughes V. Farrey, Eric Pack

Touro Law Review

No abstract provided.

Making The Right Call For Confrontation At Felony Sentencing, Shaakirrah R. Sanders

University of Michigan Journal of Law Reform

Felony sentencing courts have discretion to increase punishment based on un-cross-examined testimonial statements about several categories of uncharged, dismissed, or otherwise unproven criminal conduct. Denying defendants an opportunity to cross-examine these categories of sentencing evidence undermines a core principle of natural law as adopted in the Sixth Amendment: those accused of felony crimes have the right to confront adversarial witnesses. This Article contributes to the scholarship surrounding confrontation rights at felony sentencing by cautioning against continued adherence to the most historic Supreme Court case on this issue, Williams v. New York. This Article does so for reasons beyond the unacknowledged …

Some Thoughts On The Fundamentals Of An Evidence Code From The U.S. American Perspective, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

In the U.S. American trial system proof mainly consists of live witnesses presented in open court under oath before the judge, jury, and parties, subject to perjury laws. Cross-examination of the witnesses in that setting is the principal (though not the only) form of testing their reliability. It is for these reasons that we have a rule against hearsay (second-hand reporting in court of what someone has said outside of court).

The Mold That Shapes Hearsay Law, Richard D. Friedman

Articles

In response to an article previously published in the Florida Law Review by Professor Ben Trachtenberg, I argue that the historical thesis of Crawford v. Washington is basically correct: The Confrontation Clause of the Sixth Amendment reflects a principle about how witnesses should give testimony, and it does not create any broader constraint on the use of hearsay. I argue that this is an appropriate limit on the Clause, and that in fact for the most part there is no good reason to exclude nontestimonial hearsay if live testimony by the declarant to the same proposition would be admissible. I …

The Time Has Come For A Restatement Of Child Sex Abuse, Marci A. Hamilton

Articles

No abstract provided.

Confronting The Confrontation Clause: Addressing The Unanswered Question Of Whether Autopsy Reports Are Testimonial Evidence - People V. Hall, Bailey Ince

Touro Law Review

No abstract provided.

Someone Call 911, Crawford Is Dying - People V. Duhs, Caroline Knoepffler

Touro Law Review

No abstract provided.

United States V. Salvucci: The Problematic Absence Of Automatic Standing, William C. Bollard

Pepperdine Law Review

The United States Supreme Court recently abolished the automatic standing rule in United States v. Salvucci. The author analyzes the difficulties created for the criminal defendant charged with a possessory crime. In particular, this note focuses on the inequitable position the defendant is placed in when his suppression hearing testimony is used as a tool to impeach subsequent testimony offered at trial. The author continues by pointing out that the "prosecutorial self-contradiction," sought to be abolished in Salvucci, remains a part of our present judicial system. In conclusion, the author offers several considerations that will necessarily be an integral part …

Reflections Of A First-Time Expert Witness, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

On January 2, 2013, I testified as an expert witness at a sentencing hearing in federal district court. It was my first time being qualified as an expert, and my only time testifying in court in any capacity. A couple of months earlier, I had been contacted by an Assistant Federal Public Defender (AFPD) who asked if I’d be interested in being retained as an expert. She was handling the sentencing of a man convicted of child pornography possession, receipt, and transportation, and had read my work criticizing the development of the Federal Sentencing Guidelines provisions for these offenses. …