Criminal Procedure Commons^™

Driving On The Edge: How Municipal Fines For Traffic Violations Negatively Affect Marginalized Communities, Mariah Woodson

Public Interest Law Reporter

No abstract provided.

How To Win An Election: An Analysis Of The Power Of Social Media In Politics, Kevin Anderson

Public Interest Law Reporter

No abstract provided.

The Plan For Transformation: How A Plan With Lofty Goals Has Underperformed And Forever Changed Public Housing In Chicago, Kenya Barbara

Public Interest Law Reporter

No abstract provided.

Enforcing Statutory Maximums: How Federal Supervised Release Violates The Sixth Amendment Rights Defined In Apprendi V. New Jersey, Danny Zemel

Law Student Publications

The Sixth Amendment commands that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Trial by a jury of one’s peers is a fundamental American legal right, existing in the earliest colonies before being codified in both Article III of the Constitution and the Sixth Amendment. The jury trial right derives from “the mass of the people,” ensuring that “no man can be condemned of life, or limb, or property, or reputation, without the concurrence of the …

Equal Protection Under The Carceral State, Aya Gruber

Publications

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety …

Testimonial Injustice In International Criminal Law, Shannon Fyfe

Scholarly Articles

In this article, I consider the possibilities and limitations for testimonial justice in an international criminal courtroom. I begin by exploring the relationship between epistemology and criminal law, and consider how testimony contributes to the goals of truth and justice. I then assess the susceptibility of international criminal courts to the two harms of testimonial injustice: epistemic harm to the speaker, and harm to the truth-seeking process. I conclude that international criminal courtrooms are particularly susceptible to perpetrating testimonial injustice. Hearers in the international criminal courtroom should practice testimonial justice, but the institution is not structured in a way that …

Foreword: Criminal Procedure In Winter, Daniel Epps

Loyola of Los Angeles Law Review

No abstract provided.

United States V. Ammons, Rebecca Ruffer

NYLS Law Review

No abstract provided.

Collateral Consequences For Justice-Involved Youth: A Model Approach To Reducing The Number Of Collateral Consequences, Jennica Janssen

Marquette Benefits and Social Welfare Law Review

Collateral consequences—stigma and disadvantages individuals face after becoming entangled in the legal system—for justice­involved youth differ by jurisdiction and number in the thousands. Although the American Bar Association (ABA) and the Office of Juvenile Justice and Delinquency Prevention (OJJDP) advocated for the reduction of juvenile collateral consequences over five years ago, after an initial surge in activism, the movement lost momentum. The Federal Advisory Committee on Juvenile Justice and several non-profit, public interest law firms, continue to advocate for the clarification of juvenile collateral consequences and the elimination of specific sanctions. This Note recognizes the importance of gathering juvenile collateral …

Why Not Believe Women In Sexual Assault Cases?: An Engagement With Professors Tuerkheimer, Colb, And Many Others, Dan Subotnik

Touro Law Review

No abstract provided.

Climbing The Mountain Of Criminal Procedure: Comparative Legal Procedure, Stephen R. Galoob

Articles, Chapters in Books and Other Contributions to Scholarly Works

Book review of Comparative Criminal Procedure (Jacqueline E. Ross & Stephen C. Thaman eds., Edward Elgar, 2016)

You Be The Judge: The Wholesale Implementation Of Bail Schedules By The Judiciary As An Abdication Of Adjudicatory Responsibility Creating A Disparate Impact For African-Americans And Hispanics Accused Of A Criminal Offense, Taurus Myhand

Scholarly Works

The presumption of innocence is not well illustrated in the age-old and widespread use of monetary bail systems by most jurisdictions throughout the United States. In fact, whether a person is detained in jails prior to the final disposition of the case, is not likely to be dependent on the strength of the government’s case toward proving the accusee’s guilt. Rather, pre-trial detention is much more dependent on whether the accusee has the means to pay an amount of money determined by a court.

As the calls for bail reform resurges, many legal professionals are looking for alternatives to monetary …

Appointed Counsel And Jury Trial: The Rights That Undermine The Other Rights, Russell L. Christopher

Articles, Chapters in Books and Other Contributions to Scholarly Works

Do the Sixth Amendment rights to appointed counsel and jury trial unconstitutionally conflict with defendants' other constitutional rights? For indigents charged with felonies, Gideon v. Wainwright guarantees the right to appointed counsel; for misdemeanors, Scott v. Illinois limits the right to indigents receiving the most severe authorized punishment-imprisonment. Duncan v. Illinois limits the right to jury trial to defendants charged with serious offenses. Consequently, the greater the jeopardy faced by defendants, the greater the eligibility for appointed counsel and jury trial. But defendants' other constitutional rights generally facilitate just the oppositeminimizing jeopardy by reducing charges, lessening the likelihood of guilt, …

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 …

Get Off My Porch: United States V. Carloss And The Escalating Dangers Of “Knock And Talks”, Skyler K. Sikes

Oklahoma Law Review

No abstract provided.

The Jury Sunshine Project: Jury Selection Data As A Political Issue, Ronald F. Wright, Kami Chavis, Gregory S. Parks

Faculty Publications

In this Article, the authors look at jury selection from the viewpoint of citizens and voters, standing outside the limited boundaries of constitutional challenges. They argue that the composition of juries in criminal cases deserves political debate outside the courtroom. Voters should use the jury selection habits of judges and prosecutors to assess the overall health of local criminal justice: local conditions are unhealthy when the full-time courtroom professionals build juries that exclude parts of the local community, particularly when they exclude members of traditionally marginalized groups such as racial minorities. Every sector of society should participate in the administration …

Sentencing Reform: Fixing Root Problems, Peter A. Joy, Rodney J. Uphoff

Scholarship@WashULaw

In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty persons go free rather than convict an innocent person. Indeed, the American criminal justice system provides criminal defendants a panoply of important rights, including the right to effective assistance of counsel, in large part to ensure that the innocent are not convicted of crimes that they did not commit. But defense counsel is there not only to protect the innocent, but also to ensure that, if the defendant is found guilty after trial or if the defendant pleads guilty before trial, …

Jurisdiction-Specific Wrongful Conviction Rate Estimates: The North Carolina And Utah Examples, Paul Cassell

Utah Law Faculty Scholarship

Determining an error rate for wrongful convictions remains among the most pressing problems in the criminal justice literature. In a response to my earlier article, Professor George Thomas has offered an intriguing way to make that determination—through examining innocence cases uncovered through North Carolina’s Innocence Inquiry Commission. This Reply reassesses Thomas’s North Carolina estimate rate, concluding it to be somewhat too high. This Reply then looks at another state—my home state of Utah—to find another possible jurisdictionspecific error rate. Properly calculated, the wrongful conviction rates for North Carolina and Utah support my earlier-offered suggestion of a wrongful conviction rate in …

Access To Justice: Accelerating The Abandonment Of Fgm/C, Gretchen Kail

Cardozo Journal of Conflict Resolution

This Note discusses the role comprehensive legislation traditionally plays through a top-down approach and proposes the use of bottom-up approaches to better leverage national laws and new legal norms to support collective societal action. The discussion views legislation and FGM/C through a social norm lens: "a comprehensive, multi-sectorial, culturally sensitive approach that incorporates a social perspective to impact collective change."

Section II of this Note defines FGMIC as a health issue, a human rights violation, and a social norm. Section III discusses relevant international and regional human rights frameworks; state obligations; divergent views on the effects and usefulness of national …

The Devil's Advocate Also Wears Prada: The Impracticality Of Adr In Counterfeiting Disputes And The Prospect Of Arbitration, Anan Kahari

Cardozo Journal of Conflict Resolution

The purpose of this Note is to posit that arbitration, tailored for counterfeiting disputes, could potentially serve as a reliable method for fashion companies to combat counterfeiting. Part II discusses the background of IP rights and the relationship between counterfeiting and fashion. Part III highlights the traditional advantages of ADR and how some of those advantages may become disadvantages when applied to counterfeiting disputes. Lastly, Part IV argues that arbitration can be designed to be applicable to counterfeiting disputes described in this Note.

The Unexpected Scope Of The Cfaa: And How Netflix Users Could Be Committing A Federal Crime, Michael Levy

Cardozo International & Comparative Law Review

The Ninth Circuit's broad interpretation of the Computer Fraud and Abuse Act (CFAA) in United States v. Nosal II criminalizes everyday activities like password sharing, undermining the Act's original purpose to prevent hacking. The court ruled that accessing a computer after authorization has been revoked constitutes a violation, even if the access is for innocuous purposes. This interpretation disproportionately benefits large service providers, allowing them to suppress legitimate user claims and exposing millions of Americans to potential prosecution for common online practices.

The Violence Against Women Act, Implicit Bias, And Judicial Training, Lorena Espino-Piepp

Cardozo Journal of Equal Rights & Social Justice

The note argues that the Violence Against Women Act (VAWA) must be amended to include implicit bias training for Family Court judges and staff to address the systemic barriers faced by undocumented Latina immigrant women in accessing justice. These women often face compounded discrimination based on race, ethnicity, and immigration status, which undermines their ability to obtain immigration relief through VAWA protections. The author contends that without such training, the judicial system perpetuates inequities, as judges and court personnel rely on stereotypes that disproportionately harm women of color.

Criminal Employment Law, Benjamin Levin

Publications

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with …

The Consensus Myth In Criminal Justice Reform, Benjamin Levin

Publications

It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the “over” frame); and …

The Death Penalty As Incapacitation, Marah Stith Mcleod

Journal Articles

Courts and commentators give scant attention to the incapacitation rationale for capital punishment, focusing instead on retribution and deterrence. The idea that execution may be justified to prevent further violence by dangerous prisoners is often ignored in death penalty commentary. The view on the ground could not be more different. Hundreds of executions have been premised on the need to protect society from dangerous offenders. Two states require a finding of future dangerousness for any death sentence, and over a dozen others treat it as an aggravating factor that turns murder into a capital crime.

How can courts and commentators …

Amicus Curiae Observations On The “Prosecution’S Request For A Ruling On Jurisdiction Under Article 19(3) Of The Statute”, Fannie Lafontaine, Robert Currie, Amanda Ghahremani

Reports & Public Policy Documents

The Amici Curiae (‘the Amici’) have been granted leave by Pre-Trial Chamber I (‘the Chamber’) to submit observations in the present proceeding, which derives from the Prosecutor’s request under art. 19(3) for a ruling on whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

The Amici respectfully offer the Chamber observations on the novel legal issues raised by the Prosecutor’s Request: (II) the scope of art. 19(3) and the powers of the Prosecutor to seek a ruling on jurisdiction before a formal situation has been assigned to it; (III) the scope …

How To Instruct The Jury On Stipulations Of Fact In Federal Criminal Cases, Linsey K. Hogg

Kentucky Law Journal

No abstract provided.

Whether The Bright-Line Cut-Off Rule And The Adversarial Expert Explanation Of Adaptive Functioning Exacerbates Capital Juror Comprehension Of The Intellectual Disability, Leona Deborah Jochnowitz

Touro Law Review

No abstract provided.

Lee V. United States: The Unusual Circumstances Test For Strickland Relief, Zachary Segal

Touro Law Review

No abstract provided.

Dangerous Defendants, Sandra G. Mayson

Scholarly Works

Bail reform is gaining momentum nationwide. Reformers aspire to untether pretrial detention from wealth (the ability to post money bail) and condition it instead on statistical risk, particularly the risk that a defendant will commit crime if he remains at liberty pending trial. The bail reform movement holds tremendous promise, but also forces the criminal justice system to confront a difficult question: What statistical risk that a person will commit future crime justifies short-term detention? What about lesser restraints, like GPS monitoring? Although the turn to actuarial risk assessment in the pretrial context has engendered both excitement and concern, the …