Criminal Procedure Commons^™

Crypto: The Prospect Of Regulatory Competition, Charles M. Yablon

Articles

No abstract provided.

Race, Racial Bias, And Imputed Liability Murder, Perry Moriearty, Kat Albrecht, Caitlin Glass

Faculty Scholarship

Even within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out. Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy. What surprisingly few scholars have addressed, however, is who bears the brunt.

This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call “imputed liability murder.” An analysis of ten years of murder prosecutions in the state of Minnesota reveals …

Criminal Law's Hidden Consensus, Steven Arrigg Koh

Faculty Scholarship

American criminal law is facing a crisis of meaning. On one hand, the “traditional school” invokes the archetype of the violent criminal—a murderer, rapist, or thief—who must be prosecuted and punished. On the other hand, the “critical school” invokes the archetype of the low-level drug offender, sentenced to a draconian prison term for mere possession of low levels of marijuana. On this account, the criminal legal system is itself systemically pathological, perhaps even warranting abolition. Like ships passing in the night, the two schools appear irreconcilable. This Article helps break this impasse and builds toward a justification for criminal law …

A Critical Perspective On Testimonial Injustice: Interrogating Witnesses' Credibility Excess In Criminal Trials, Jasmine Gonzales Rose

Faculty Scholarship

This paper offers a critical race theory perspective on the testimonial injustice experienced by racially minoritized criminal defendants in evidential practice. It builds off Federico Picinali’s paper, inter alia, substantiating how minoritized criminal defendants experience testimonial harm through credibility deficit, by exploring epistemic injustice to the same when prosecutorial witnesses receive identity-based credibility excess. It argues that in an adversarial criminal legal system, the testimonial injustice of credibility excess afforded racial in-group prosecutorial witnesses should be considered in tandem with the testimonial injustice of credibility deficit imposed on racial out-group defendants. Only then can the epistemic harm and resultant …

Prosecutorial Data Transparency And Data Justice, Caitlin Glass, Kat Albrecht, Perry Moriearty

Faculty Scholarship

The U.S. criminal legal system is notoriously racialized. Though Black and Latinx people make up less than 30% of U.S. residents, they constitute more than 50% of the nearly two million people currently in U.S. prisons and jails. For decades, research has indicated that one group of decision-makers has had an outsized influence on these numbers: prosecutors. From whom to charge to what sentences to recommend, no actor plays a greater role in determining who goes to prison in this country. Highly subjective and lacking in formal guidance and accountability, prosecutorial decisions are especially vulnerable to racial bias. They are …

Dicta Mines, Pretext, And Excessive Force: Toward Criminal Procedure Futurism, Frank Rudy Cooper

Scholarly Works

Scholars have recently criticized Fourth Amendment pretext doctrine for leading to more police contact with Black and Brown people and thus to racially disproportionate uses of excessive force. This Essay reveals the intersection of the Court’s pretext and excessive force doctrines by unearthing their shared roots in the 1973 United States v. Robinson search-incident-to-arrest opinion.

This Essay’s new insight is that Robinson contains what it calls a “dicta mine.” A dicta mine is (1) an unnecessary statement that (2) a Court silently recharacterizes as having already resolved an issue, (3) exploding it into a significant doctrine. The Robinson dicta mine …

Broadening The Community, Strengthening The Movement: An Introduction To The Innocence Project "Just Data" 2024 Scholarship Issue, Vanessa Meterko, Jaime S. Henderson, Ngozi Ndulue, Tebah Browne, Valena Beety

Articles by Maurer Faculty

This special issue of The Wrongful Conviction Law Review features a collection of seven research papers presented at the Innocence Project’s 2023 Just Data: Advancing the Innocence Movement conference. This annual event, organized by the Innocence Project and partners in the larger Innocence Network, brings together a diverse group of scholars and advocates, including those who have been wrongfully convicted themselves, to share the latest social science, discuss emerging issues, and make connections to inform our collective work and promote new applied research. Social science research, often conducted quietly and behind the scenes, is critical to data-driven litigation and policy …

The Road To Hell Is Paved With Good Intentions: Deinstitutionalization And Mass Incarceration Nation, Corinna Barrett Lain

Law Faculty Publications

They say that the road to hell is paved with good intentions, and our failed implementation of deinstitutionalization inthe 1970s is a prime example of the point. In this symposium contribution-a response to Jeffrey Bellin's book MassIncarceration Nation-I offer a historical account of deinstitutionalization of state mental hospi­ tals, tracing how severelymentally ill patients were discharged from state hospitals and eventually made their way back to secure beds, but in our nation's jails and prisons instead. Mental health and mass incarceration are not separate crises, I argue, but rather inter­ connected problems with an interconnected past that require an interconnected …

The Sociology Of Bail Reform: Crime, Social Interaction, And Offender Experiences In Rurality., Scott Kevin Turner

Graduate Theses, Dissertations, and Problem Reports (ETD)

The study sought to explore the impact of the New York State “Bail Reform Act of 2019,” in rurality. It examined some of the legislative goals of the law, the claim that it caused crime, and offender experiences in rurality. Secondary data was used to map the rural crime landscape and primary data was collected from offenders during face to face interviews. The study was framed using deterrence and opportunity approaches and situated within the broader field environments; legislative, courtroom, and community. The research failed to find support for the claim that bail reform caused crime. Instead, it revealed that …

Their Futures, So Full Of Dread: How Barefoot's Contamination Of The Death Penalty Trial Process Continues, Michael L. Perlin, Talia Roitberg Harmon, Maren Geiger, Moana Houde-Camirand

Articles & Chapters

Forty years ago, in its most roundly-criticized criminal procedure decision in modern history, the Supreme Court, in Barefoot v. Estelle (463 U.S. 880 (1983)), a decision premised on testimony by the responses to a hypothetical of a witness who had never directly evaluated the defendant, ruled that such testimony as to future dangerousness – testimony that had concluded there was a “100% chance” the defendant would commit more crimes if released into society -- was permissible. Over a stinging dissent by Justice Blackmun, the Supreme Court had ruled in Barefoot that it was not constitutional error for psychiatrists to testify …

Curing Terry’S Colorblindness, Ilan Friedmann-Grunstein

Oklahoma Law Review

No abstract provided.

Taking Aim At Shotspotter: Gunshot Surveillance, The Fourth Amendment, And An Argument For Sonic Security, Emily A. Fogg

Oklahoma Law Review

No abstract provided.

Proportionalities, Youngjae Lee

Faculty Scholarship

"Proportionality" is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …

Fighting Against Copyright Infringement On Social Networks In Vietnam - From The Perspective Of Responsibilities Of Internet Service Providers, Phan Khoi Nguyen

Indonesia Law Review

The law on intellectual property in general and copyright, in particular, is a subject of increasing interest in today's society, particularly in the information and internet explosion era. To prevent infringement and effectively protect copyright in the online environment, Vietnam's copyright law contains numerous provisions, including regulations pertaining to service provider responsibilities. This article examines the international and domestic legal bases for the liability of social network service providers (a type of internet-based intermediary service) in the fight against harmful copyright violations by the users of the service. Thus, the authors will identify several deficiencies in the existing Vietnamese copyright …

The Concept Of Legal Subject Competence In The Authority To Act On Marriage Law In Indonesia, Imelda Martinelli, F.X. Joko Priyono, Yunanto Yunanto

Indonesia Law Review

This article focuses on discussing legal politics related to one important issue which is very basic, namely regarding the criteria for the ability to act of a human being as a legal subject within the scope of civil law, especially marriage law regarding the minimum age limit for entering into a marriage, who come from backgrounds with different interests and ideologies, make this an issue that can be highlighted. So the problem in this paper becomes whether there is a concept regarding the legal subject's competence in the authority to act on marriage law in Indonesia that accommodates the law …

Guardians Of Innocence: Enhancing Legal Safeguards For Child Victims Of Sexual Violence In Indonesia, Aziz Andriansyah, Retno Saraswati, Irma Cahyaningtyas

Indonesia Law Review

Sexual violence against children is a crime that is quite disturbing and needs to get attention in society. The implementation of child protection must meet the requirements, among others, by implementing the development of truth, justice and child welfare. Based on the provisions in Law Number 35 of 2014 concerning Amendments to Law Number 23 of 2002 concerning Child Protection. The basic rights of children who need adequate protection include the right to live, the right to develop, the right to protection, the right to participate and the right to education. Efforts to prevent sexual abuse in children can also …

Reassessing Restorative Justice: Addressing Sexual Violence Cases In Indonesi, Ribut Hari Wibowo, Ahmad Busro, Ani Purwanti

Indonesia Law Review

This study examines”Restorative”Justice in the settlement of sexual violence crimes. The research method used in this study is normative juridical, using a statute approach. The aim of this research is to determine the effectiveness of Restorative Justice in resolving the problems of cases of sexual violence that have occurred in Indonesia. The results of this study include that Restorative Justice is not effectively applied to cases of sexual violence because it cannot fulfill”the principles of respect for human”dignity, nondiscrimination, the best interests of the victim, justice, benefit and legal certainty for the victim as stipulated in the Law, Constitution Number …

Examining The Implementation Of Insurance Law And Policies: A Study Of Natural Disaster Risks, Policyholders, And Insurance Companies In Indonesia, Dotto Koyage Philipo, Daniel Lubowa

Indonesia Law Review

This study aims to investigate the implementation of insurance laws and policies in Indonesia in the context of natural disaster risks. The study will analyse the effectiveness of existing insurance regulations and their practical implications through a comprehensive analysis of relevant literature, legal frameworks, and empirical data. The study will employ a mixed-methods approach, combining qualitative data with policyholders and insurance professionals, as well as quantitative data analysis from insurance industry reports. The findings will contribute to a better understanding of the strengths and weaknesses of the current insurance framework, shedding light on potential areas for improvement. This study seeks …

Sarah Chu, Director Of Policy And Reform At Pclj Joined Advocates Calling On Gov. Hochul To Sign The Challenging Wrongful Convictions Act, Sarah Chu

Cardozo News 2023

Sarah Chu, Director of Policy and Reform at Perlmutter Center for Legal Justice at Cardozo Law, joined advocates on Thursday, December 21, at Governor Kathy Hochul's NYC office, calling on the Governor to sign the Challenging Wrongful Convictions Act.

Volume 6, Issue 1 (2023) Criminal Justice Agents And Responsibility, Colleen Berryessa, Elizabeth Griffiths, Kaitlen Hubbard, Deena A. Isom, Kateryna Kaplun, Hiuxuan Li, Siyu Liu, Esther Nir, Heather L. Scheuerman, Rachel Schumann, Sandy Xie, Carolyn Yule

International Journal on Responsibility

This special issue of the International Journal on Responsibility (IJR) advances scholarship on the various ways responsibility infuses the roles of criminal justice agents. As the inaugural issue of my tenure as Editor-in-Chief, Volume 6 deepens our understanding of responsibility in the context of the criminal justice system, thereby fulfilling IJR’s aim and scope. Specifically, the articles highlight issues of responsibility within each component of the criminal justice system: police, courts, and corrections.

The Pima County Jail In A “State Of Full-Blown Crisis”: Inmate Deaths Four Times The National Average, Natalie Robbins

Capstones

Last year, 12 inmates died in custody at the Pima County Jail in Tucson, Arizona. With a 10-year average jail population of 1,827, that is a per capita rate of 656.8 deaths per 100,000 inmates.

According to the most recent data from the Bureau of Justice Statistics, the 2019 national local jail mortality rate was 167 deaths for every 100,000 inmates, making the Pima County Jail’s 2022 per capita death rate nearly four times as high as the national average in 2019.

In a December 2022 memo to the Pima County Board of Supervisors, Pima County Sheriff Chris Nanos wrote …

Holding The Big House Accountable: The Sixth Circuit Concludes A Pretrial Detainee's Fourteenth Amendment Deliberate Indifference Claim Is A Wholly Objective Determination, Noah Speitel

Villanova Law Review (1956 - )

No abstract provided.

Terror And Tenderness In Criminal Law, M. Eve Hanan

Cardozo Law Review

Sentencing reductions, executive pardons, prison release programs, and progressive prosecutors have something in common. In word choice and design, they suggest tempering the violence of criminal law in a limited number of cases. The prisoner may be released early based on a record of good behavior. The President may grant clemency to those sentenced in an earlier era to decades in prison for a drug crime. The prosecutor may recommend drug court rather than a jail sentence to a defendant addicted to illegal substances. In the era of “smart on crime,” reform often comes through expanding these mechanisms of relief …

Capital Punishment, Carlos Wood

Mercer Law Review

In Glossip v. Gross, a 2015 Supreme Court of the United States case that addressed the constitutionality of Oklahoma’s lethal injection protocol, Justice Breyer authored a dissent, joined by Justice Ginsburg, in which he noted the declining use of the death penalty in the United States. Justice Breyer began his dissent by noting the downward trajectory of the number of convictions that resulted in capital sentences. The evidence he cited included the following: from 1986 to 1999, approximately 300 people on average were sentenced to death every year, but in 2000, this number began to decline rapidly. In 2014, …

Events To Record: An Examination Of Required Activation For Body-Worn Cameras, Allison Reed

Honors Theses

There has been a lot of research on the effectiveness of body-worn cameras in policing including the impacts that body-worn cameras have on police officers, individual citizens, and the community. Results from prior literature show that police body-worn cameras are only sometimes highly effective. This project investigates why police body-worn cameras may not be effective by examining the required activation policies. Data for this project derive from the 2016 Law Enforcement Management Administrative Statistics – Body-Worn Camera Supplement (LEMAS-BWCS) study conducted by the Bureau of Justice Statistics. The main components of these data are the required events officers are to …

Criminal Law And Procedure, Lauren E. Brice, Michelle C. F. Derrico

University of Richmond Law Review

It has been another busy year in the General Assembly and in the appellate courts of Virginia, especially with the recently expanded Court of Appeals. Areas in which the General Assembly made significant changes are now filtering to the appellate courts for interpretation. There have been a number of significant opinions in retroactivity of statutes, probation violations, and mental health.

Laundering Police Lies, Adam Gershowitz, Caroline E. Lewis

Faculty Publications

Police officers—like ordinary people—are regularly dishonest. Officers lie under oath (testilying), on police reports (reportilying), and in a myriad of other situations. Despite decades of evidence about police lies, the U.S. Supreme Court regularly believes police stories that are utterly implausible. Either because the Court is gullible, willfully blind, or complicit, the justices have simply rubber-stamped police lies in numerous high-profile cases. For instance, the Court has accepted police claims that a suspect had bags of cocaine displayed in his lap at the end of a police chase (Whren v. United States), that officers saw marijuana through a …

Jd And Me: Exploring Hybrid Representation Of Pro Se Defendants In Capital Murder Cases, Andrew Wick

Et Cetera

The United States Constitution grants those facing the loss of life and liberty the right to due process and a fair trial under the law. What can be done to ensure criminal defendants facing the death penalty feel as though their desired argument and defense will be presented while still having the appearance of a fair trial? This Article compares a person the law says is qualified to waive counsel and represent themselves and a person qualified to be appointed to represent those facing the death penalty, what is required to waive counsel, the involvement of the trial court and …

Clemency: A Tool For Extreme And Discriminatory Sentences, Benjamin N. Cardozo School Of Law

Cardozo News 2023

This article appeared in the 2023 edition of Cardozo Life magazine.

For Joaquin Winfield, April 7, 2023, will forever be a day to remember. That is when he was granted clemency by New York Gov. Kathy Hochul after serving 26 years in prison for possession of 4.6 ounces of crack. The disparity in sentences given to people from different races for similar crimes has been widely written about in recent years. Winfield was sentenced under the now-repealed Rockefeller Drug Laws of the 1970s and 1980s. He was sentenced to 37.5 years to life, one of the longest prison sentences in …

Brief Of Fourth Amendment Scholars As Amici Curiae In Support Of Defendant-Appellant On The Good Faith Exception Issue, U.S. V. Holcomb, Ninth Circuit Court Of Appeals Docket No. 23-469, David B. Owens, Rachel Nowlin-Sohl, Averill L. Aubrey, Megan Haygood, Kayleigh Mcniel, Michael C. Orehek

Court Briefs

SUMMARY OF THE ARGUMENT

When the Fourth Amendment is violated by an unconstitutional search, the suppression of wrongfully obtained evidence (the exclusionary rule) is often the only viable remedy that might deter government overreach and provide some redress for the constitutional violation. Though the Supreme Court has long treated remedial mechanisms as separate from their underlying rights, Wolf v. Colorado, 338 U.S. 25 (1949), and while limited exceptions to the suppression requirement have existed for years, recent expansion of the “good faith exception” in the digital age imposes unprecedented threats to privacy and security.

A porous or expansive view …