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Articles 4171 - 4200 of 12094

Full-Text Articles in Criminal Procedure

The Miranda Case Fifty Years Later, Yale Kamisar May 2017

The Miranda Case Fifty Years Later, Yale Kamisar

Articles

A decade after the Supreme Court decided Miranda v. Arizona, Geoffrey Stone took a close look at the eleven decisions the Court had handed down “concerning the scope and application of Miranda.” As Stone observed, “[i]n ten of these cases, the Court interpreted Miranda so as not to exclude the challenged evidence.” In the eleventh case, the Court excluded the evidence on other grounds. Thus, Stone noted, ten years after the Court decided the case, “the Court ha[d] not held a single item of evidence inadmissible on the authority of Miranda.” Not a single item. To use …

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Disentangling Miranda And Massiah: How To Revive The Sixth Amendment Right To Counsel As A Tool For Regulating Confession Law, Eve Brensike Primus May 2017

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 …

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Remarks On Campus Sexual Assault, Alison M. Tinsey May 2017

Remarks On Campus Sexual Assault, Alison M. Tinsey

University of Richmond Law Review

No abstract provided.

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Manipulation Of Suspects And Unrecorded Questioning, Christopher Slobogin May 2017

Manipulation Of Suspects And Unrecorded Questioning, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Fifty years after Miranda, courts still do not have clear guidance on the types oftechniques police may use during interrogation. While first-generation tactics (a.k.a. the third degree) are banned, second-generation tactics such as those found in the famous Reid Manual continue to be used by interrogators. The Supreme Court has sent only vague signals as to which of these second- generation techniques, if any, are impermissible, and has made no mention of newly developed third-generation tactics that are much less reliant on manipulation. This Article divides second-generation techniques into four categories: impersonation, rationalization, fabrication, and negotiation. After concluding, based on …

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Jail Isolation After Kingsley: Abolishing Solitary Confinement At The Intersection Of Pretrial Incarceration And Emerging Adulthood, Deema Nagib May 2017

Jail Isolation After Kingsley: Abolishing Solitary Confinement At The Intersection Of Pretrial Incarceration And Emerging Adulthood, Deema Nagib

Fordham Law Review

In 2015, the U.S. Supreme Court held that allegations of excessive use of force in pretrial detention are subject to an objective standard. However, it is unclear whether the objective standard extends to claims arising out of different factual circumstances. The Second Circuit’s recent decision in Darnell v. Pineiro to extend Kingsley v. Hendrickson to conditions-of- confinement cases provides hope. This Note argues that Kingsley should extend to solitary confinement litigation—particularly the isolation of emerging adults in pretrial detention. Solitary confinement is a widespread practice in the criminal justice system, but the implications of its use in pretrial detention have …

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Toward A Science Of Torture?, Maxwell Gregg Bloche May 2017

Toward A Science Of Torture?, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

Does torture “work?” Proponents, including President Trump and the architects of CIA “Enhanced Interrogation” say it does, by breaking terrorists' resistance to revealing information that saves lives. Torture's foes typically dismiss this claim as false to the point of fraud--fortuitous coincidence with torture's unlawfulness. Neither view, I argue herein, rests firmly on evidence. Rival anecdotes, not data, have, so far, driven this debate. And a scientific answer is beyond our reach, since: (1) rigorous comparison between interrogation methods that do and don't involve torture isn't possible, and (2) studies of this sort would be transparently unethical. This hasn't stopped the …

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Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia Jr. May 2017

Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia Jr.

Journal Articles

In the realm of Federal Courts, the question of “implied rights of action” asks when, if ever, may a plaintiff bring a federal right of action for the violation of a federal statute that does not expressly create one. Justice Scalia argued that a court should not entertain an action for damages for the violation of a federal statute unless the text of the statute demonstrates that Congress meant to create a right of action. The Supreme Court adopted this approach in 2001 in Alexander v. Sandoval, with Justice Scalia writing for the majority. Certain judges and scholars have argued …

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Drugs Law And Legal Practice In Southeast Asia: Indonesia, Singapore, And Vietnam, Maskun Maskun Apr 2017

Drugs Law And Legal Practice In Southeast Asia: Indonesia, Singapore, And Vietnam, Maskun Maskun

Indonesia Law Review

Drugs Law and Legal Practice in Southeast Asia investigates criminal law and practice relevant to drugs regulation in three Southeast Asian jurisdictions: Indonesia, Singapore and Vietnam. These jurisdictions represent the spectrum of approaches to drugs regulation in Southeast Asia, highlighting differences in practice between civil and common law countries, and between liberal and authoritarian states.

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Adrift At Sea: How The United States Government Is Forgoing The Fourth Amendment In The Prosecution Of Captured Terrorists, Frank Sullivan Apr 2017

Adrift At Sea: How The United States Government Is Forgoing The Fourth Amendment In The Prosecution Of Captured Terrorists, Frank Sullivan

Penn State Journal of Law & International Affairs (2012 - Present)

No abstract provided.

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Retributive Medication: A Discussion Of A Maine Law Allowing Involuntary, Forcible Medication Of A Pretrial Defendant For The Purpose Of Rendering The Defendant Competent To Stand Trial, Ashley T. Perry Apr 2017

Retributive Medication: A Discussion Of A Maine Law Allowing Involuntary, Forcible Medication Of A Pretrial Defendant For The Purpose Of Rendering The Defendant Competent To Stand Trial, Ashley T. Perry

Maine Law Review

Innocent until proven guilty—it’s a phrase we have all heard, know, and accept. But there are circumstances where this simple concept is strained in its application, such as when a legally incompetent defendant is facing trial. After all, how can a defendant be proven guilty if he cannot stand trial? The Supreme Court of the United States has determined that forcibly medicating an incompetent defendant solely to render the defendant competent to stand trial is permissible under the Federal Constitution. However, the Federal Constitution provides only the floor-level of civil rights; states are free to set their own ceilings. The …

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Kids Will Be Kids: Time For A "Reasonable Child" Standard For The Proof Of Objective Mens Rea Elements, Christopher M. Northrop, Kristina R. Rozan Apr 2017

Kids Will Be Kids: Time For A "Reasonable Child" Standard For The Proof Of Objective Mens Rea Elements, Christopher M. Northrop, Kristina R. Rozan

Maine Law Review

In a line of recent cases that have rocked the world of juvenile law, the Supreme Court relied on the latest brain science research with the timeless knowledge of parents to state forcefully and repeatedly that children are more impetuous, more vulnerable to outside pressures, less depraved, and less culpable for their actions than adults are. Yet criminal statutes refer to the “reasonable person” standard, which does not take into account the age of the accused as the benchmark for guilt or innocence. In doing so, we hold children to an irrelevant and arguably unfairly demanding behavioral ideal, and criminalize …

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Habeas As Forum Allocation: A New Synthesis, Carlos M. Vázquez Apr 2017

Habeas As Forum Allocation: A New Synthesis, Carlos M. Vázquez

University of Miami Law Review

The scope of habeas relief for state prisoners, especially during the decades before the Supreme Court’s 1953 decision in Brown v. Allen, is a famously disputed question—one of recognized significance for contemporary debates about the proper scope of habeas review. This Article provides a new answer. It argues that, until the enactment of Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), it was broadly accepted that state prisoners were entitled to plenary federal review of the legal and mixed law/fact questions decided against them by state courts. Until 1916, such review was provided by the Supreme Court; after 1953, …

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Newsroom: Rwu Wins Cyber Crime Moot At Ucla 04-24-2017, Roger Williams University School Of Law Apr 2017

Newsroom: Rwu Wins Cyber Crime Moot At Ucla 04-24-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

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Find My Criminals: Fourth Amendment Implications Of The Universal Cell Phone "App" That Every Cell Phone User Has But No Criminal Wants, Christopher Joseph Apr 2017

Find My Criminals: Fourth Amendment Implications Of The Universal Cell Phone "App" That Every Cell Phone User Has But No Criminal Wants, Christopher Joseph

Barry Law Review

No abstract provided.

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Bias In Blue: Instructing Jurors To Consider The Testimony Of Police Officer Witnesses With Caution, Vida B. Johnson Apr 2017

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. …

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Office Of The Attorney General V. Justice Court (Escalante), 133 Nev. Adv. Op. 12 (Apr. 6, 2017), Kristopher Kalkowski Apr 2017

Office Of The Attorney General V. Justice Court (Escalante), 133 Nev. Adv. Op. 12 (Apr. 6, 2017), Kristopher Kalkowski

Nevada Supreme Court Summaries

The Court determined that NRS 30.130, which concerns the Attorney General’s right to be notified and an opportunity to be heard in constitutional challenges to Nevada statutes, does not apply to criminal proceedings. Instead, NRS 30.130 only refers to a proceeding for declaratory relief, which is treated as a civil action.

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People V. Selikoff: The Route To Rational Plea Bargaining, John F. Byrne Apr 2017

People V. Selikoff: The Route To Rational Plea Bargaining, John F. Byrne

The Catholic Lawyer

No abstract provided.

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Cooperative Federalism: Nevada’S Indigent Defense Crisis And The Role Of Federal Courts In Protecting The Right To Counsel In Non-Capital Cases, Randolph Fiedler, Megan Hoffman, Jonathan Kirshbaum Apr 2017

Cooperative Federalism: Nevada’S Indigent Defense Crisis And The Role Of Federal Courts In Protecting The Right To Counsel In Non-Capital Cases, Randolph Fiedler, Megan Hoffman, Jonathan Kirshbaum

Nevada Law Journal Forum

In Martinez v. Ryan, the United States Supreme Court held the ineffective assistance of post-conviction counsel, or the lack of representation in a state post-conviction proceeding, provides cause to allow a federal habeas petitioner to overcome a procedural default on an ineffective assistance of trial counsel claim. This represented a radical shift in the criminal justice system. Prior to Martinez, state post-conviction proceedings—the typical mechanism for a criminal defendant to challenge the performance of his trial attorney—were not heavily scrutinized. It was understood and accepted that defendants did not have the right to counsel in these post-conviction proceedings. Whether a …

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Islam Is The New Black: Muslim Perceptions Of Law Enforcement, Jesenia Robles Apr 2017

Islam Is The New Black: Muslim Perceptions Of Law Enforcement, Jesenia Robles

McNair Scholars Research Journal

Research shows that healthy police-community relationships are important for an effective police department. However, although many studies have investigated the relationship between racial minorities and police, only a small portion focus on the Islamic community. This is problematic because hostility towards the Islamic community has been on the rise in the United States (US) since the attacks of 9/11 (Jackson, 2010), and current Middle Eastern conflicts have led to an influx of Muslim refugees into the US. This has further diversified neighborhoods and is the reason that it is just as imperative to explore police-Muslim interactions as it is to …

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Fairness Beyond The Adversary System: Procedural Justice Norms For Legal Negotiation, Rebecca Holland-Blumoff Apr 2017

Fairness Beyond The Adversary System: Procedural Justice Norms For Legal Negotiation, Rebecca Holland-Blumoff

Fordham Law Review

Part I of this Article provides background on procedural justice and its relationship to negotiation. Part II then discusses the results of a recent empirical study that I conducted on the factors that help shape perceptions of procedural justice in the negotiation setting. Lastly, Part III explores the strategic and ethical implications of these results for the practicing lawyer in settlement negotiations.

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A Lost Opportunity For Sentencing Reform: Plea Bargaining And Barriers To Effective Assistance, Margaret Etienne Apr 2017

A Lost Opportunity For Sentencing Reform: Plea Bargaining And Barriers To Effective Assistance, Margaret Etienne

South Carolina Law Review

No abstract provided.

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Exploring The Parameters Of A Child's Right To Redemption: Some Thoughts, Katherine Hunt Federle Apr 2017

Exploring The Parameters Of A Child's Right To Redemption: Some Thoughts, Katherine Hunt Federle

South Carolina Law Review

No abstract provided.

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Flying Over The Cuckoo's Nest: How The Mentally Ill Landed Into An Unconstitutional Punishment In South Carolina, Elle Klein Apr 2017

Flying Over The Cuckoo's Nest: How The Mentally Ill Landed Into An Unconstitutional Punishment In South Carolina, Elle Klein

South Carolina Law Review

No abstract provided.

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To Have And To Hold: Factors To Consider Before Divorcing South Carolina From The Concealed Weapons Permit Requirement, Joseph D. Spate Apr 2017

To Have And To Hold: Factors To Consider Before Divorcing South Carolina From The Concealed Weapons Permit Requirement, Joseph D. Spate

South Carolina Law Review

No abstract provided.

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Virginia’S Interpretation Of Ake V. Oklahoma: A Hollow Right, Andrew Monaghan Higgins Apr 2017

Virginia’S Interpretation Of Ake V. Oklahoma: A Hollow Right, Andrew Monaghan Higgins

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

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Keeping Gideon’S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren S. Lucas Apr 2017

Keeping Gideon’S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren S. Lucas

Fordham Law Review

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel. The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court’s right to counsel jurisprudence in this area has remained stagnant. Critics of the …

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Keeping Gideon'S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren Sudeall Lucas Apr 2017

Keeping Gideon'S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren Sudeall Lucas

Faculty Publications By Year

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel.

The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court’s right to counsel jurisprudence in this area has remained stagnant. Critics of the …

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Statewide Rules Of Criminal Procedure: A 50 State Review, Emily Dyer, Chelsea Stacey, Adrian Viesca Apr 2017

Statewide Rules Of Criminal Procedure: A 50 State Review, Emily Dyer, Chelsea Stacey, Adrian Viesca

Nevada Law Journal Forum

Nevada is amongst the minority of states without statewide criminal procedure rules. Statewide rules are important because they promote fairness, regularity, and transparency regardless of where in the state a criminal case is being adjudicated and who it is being adjudicated in front of. This report intends to compare the varying states’ criminal procedure rules, to provide Nevada’s legal community with an awareness of how rules can be structured, what rules are included, and how rules interact with statutes and other court rules. If Nevada chooses to follow in the path of the forty-seven states and develop statewide criminal procedure …

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The Pre-Furman Juvenile Death Penalty In South Carolina: Young Black Life Was Cheap, Sheri Lynn Johnson, John H. Blume, Hannah L. Freedman Apr 2017

The Pre-Furman Juvenile Death Penalty In South Carolina: Young Black Life Was Cheap, Sheri Lynn Johnson, John H. Blume, Hannah L. Freedman

Cornell Law Faculty Publications

Capital punishment in this country, and in South Carolina, has its roots in racial subjugation, stereotype, and animosity. The extreme disparities we report here have dampened due to the combined effects of decreasing levels of open racial antagonism, the reforms of the modem death penalty, including categorical exemptions for juveniles and person with intellectual disabilities and prohibition of the imposition of the death penalty for the crime of rape, and the (small) increase in diversity in capital juries. But dampened does not mean eradicated. Significant disparities in the administration of capital punishment persist today. The color of a defendant's skin …

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Does "Precrime" Mesh With The Ideals Of U.S. Justice?: Implications For The Future Of Predictive Policing, Jackson Polansky, Henry F. Fradella Apr 2017

Does "Precrime" Mesh With The Ideals Of U.S. Justice?: Implications For The Future Of Predictive Policing, Jackson Polansky, Henry F. Fradella

Cardozo Public Law, Policy & Ethics Journal

Both the short story and film Minority Report are premised on a Precrime unit that relies on the psychic abilities of human mutants who can predict the commission of crimes before they occur. Advances in technology suggest that the science fiction depicted in Minority Report may one day become a reality. This paper summarizes the ways in which the criminal justice system currently derives crime predictions and extrapolates from these methods how technology might one day allow police to intervene before crimes are committed with great regularity and accuracy. The paper contemplates how an actual precrime system would struggle to …

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