Criminal Procedure Commons^™

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 …

"Fighting Words" And The First Amendment In Maine: State V. John W., Deborah J. Ross

Maine Law Review

On April 1, 1979, John W. was driving his car, accompanied by his sister Maria. The car was stopped by a police officer who requested John's license and registration. Maria asked the officer why they had been stopped. When the officer remained silent, Maria became abusive and was arrested for disorderly conduct. John demanded to know what was going on. Ordered to get back into his car, John began shouting at the police: "Hey, turn around and come back here;" "Hey, you fucking pig, you fuckin' kangaroo;" "Fuck you." John was arrested and convicted in a juvenile proceeding of disorderly …

The Development And Consequences Of The "Good Faith" Exception To The Exclusionary Rule And The Qualified "Good Faith" Immunity From Liability Under Section 1983, Philip M. Coffin Iii, Paul F. Driscoll

Maine Law Review

The remedies fashioned to redress violations of the fourth amendment to the United States Constitution continue to be the subject of much judicial, legislative, and scholarly inquiry. In striking the balance between the need to protect individual freedom and the need to protect society from criminal activity, the Supreme Court and Congress have developed two principal remedies for fourth amendment violations: the exclusionary rule and civil actions under 42 U.S.C. § 1983 or under theories of constitutional tort. on the development of both of these remedies it is assumed that their effectiveness is the true measure of fourth amendment liberties. …

25 Years For A Crime He Didn’T Commit: Anthony Wright, Caleb D. Purvis

SACAD: Scholarly Activities

Anthony Wright was found guilty of the rape and murder of an elderly woman in 1991 in Philadelphia. He was then convicted in 1993 (Kaur, 2020). Anthony Wright spent the next 25 years in prison before becoming the 344th person to be exonerated by DNA in the US (Innocence Project, 2025). Upon the re-examination of the evidence found at the crime scene, a new suspect was identified, but had already passed away, preventing any criminal charges from being filed against them. Anthony Wright also filed a civil lawsuit on January 17, 2017, after his exoneration (Wright v. Philadelphia, 2017).

Self-Defense Or Served Justice? Kirstin Lobato Case, April L. Wayne

SACAD: Scholarly Activities

Kirstin Lobato spent 16 years in prison for the crimes of voluntary manslaughter and sexual penetration of a dead body. The Innocence Project took on her case and helped to exonerate her in 2017. After critical evidence that was withheld during the original trial was brought forward, Lobato was retried and had her conviction reversed. She was awarded $34 million in retribution for her time in prison due to her mistrial.

Christopher Tapp, Haley Schoenberger

SACAD: Scholarly Activities

Christopher Tapp was wrongfully convicted for the murder and rape of 18-year-old Angie Dodge and the use of a deadly weapon in Idaho. This took place in 1996. This highlights the damages and dangers of coerced confessions and failures within the criminal justice system. Tapp was convicted even though there was no physical evidence linking him to the crime. He was sentenced to 30 years to life because of a confession extracted by the police’s interrogation and a false witness statement. The DNA at the scene did not match Chris but he was still imprisoned for 20 years. In 2019, …

22 Years Lost: The Story Of Paul House, Mariah A. Carrillo

SACAD: Scholarly Activities

This project outlines the wrongful conviction of Paul House and his eventual exoneration after 22 years on death row in Tennessee. The murder of Carolyn Muncey occurred in 1985 in Luttrell, Tennessee and House was an immediate suspect with the finding of multiple pieces of forensic evidence. Namely, it was ABO serology testing that was used to tie House to the crime. Advancements in this form of testing showed that House was innocent. It was in 2006 that the Supreme Court ruled in favor of House’s exoneration due to the flaws in the original forensic evidence. This project exemplifies the …

De-Policing: An Updated Empirical Analysis Of Crime And Federal Police Reform, Griffin Edwards, Stephen Rushin

Washington and Lee Law Review

This Article builds on prior work by empirically analyzing the effect of federal intervention in local police departments on crime and clearance rates, using updated data and methodologies.

Congress passed 34 U.S.C. § 12601 (formerly 42 U.S.C. § 14141) in 1994 to give the United States Attorney General the authority to seek equitable relief against local and state law enforcement agencies engaged in patterns or practices of misconduct. Since its passage, the Department of Justice has investigated and intervened into dozens of American police departments, including some of the largest police departments in the country. Federal intervention represents one of …

Riding On Horseback To The Moon: Consent Searches In The Age Of Smartphones And Digital Tracking, Jonathan Kerr

Washington and Lee Law Review

In 2014, when the Supreme Court ruled in Riley v. California that police must get a warrant before conducting a search of a cell phone, Chief Justice John Roberts described comparing a search of data on a cell phone to a search of other physical items as “like saying a ride on horseback is materially indistinguishable from a flight to the moon.” A decade later, an overwhelming majority of Americans carry cell phones that contain an ever-expanding set of data showing their habits, routines, and the minutiae of their everyday lives, offering a potential wealth of information to law enforcement …