Criminal Procedure Commons^™

An Argument Against Civil Marriage, J. David Bleich

Articles

The article argues against the legal recognition of civil marriage, particularly in the context of same-sex marriage as upheld by the Supreme Court in Obergefell v. Hodges. The author contends that legal recognition of same-sex marriage conflates moral approval with legal neutrality, leading to potential conflicts between individual conscience and state mandates. Drawing on Talmudic principles and historical legal precedents, the article advocates for the abolition of civil marriage and proposes an alternative system of designating "close friends" for legal purposes to avoid such conflicts.

What’S Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas

Articles

Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended …

Consolidating Local Criminal Justice: Should Prosecutors Control The Jails?, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Supervised Release, Sex-Offender Treatment Programs, And Substantive Due Process, Max B. Bernstein

Fordham Law Review

This Note argues that mandated PPG testing should be eliminated as a condition of federal supervised release. The test infringes on a constitutionally protected liberty interest against unwanted bodily intrusions and, as only the Second Circuit has held, any condition of supervised release that infringes on a constitutionally protected right may be mandated only where it is narrowly tailored to serve a compelling government interest. Because there are a number of viable, less intrusive alternatives, PPG testing as it stands today is not narrowly tailored enough to serve a compelling government interest.

Doe V. O'Donnell And New York's Sex Offender Registration Act: The Problem Of Continued Registration Under Sora After Leaving The State, Samantha R. Millar

Cardozo Law Review

No abstract provided.

War By Legislation: The Constitutionality Of Congressional Regulation Of Detentions In Armed Conflicts, Christopher M. Ford

Northwestern University Law Review

In this essay, Ford considers provisions of the 2016 National Defense Authorization Act (NDAA) which place restrictions on the disposition of detainees held in Guantánamo Bay. These provisions raise substantial separation of powers issues regarding the ability of Congress to restrict detention operations of the Executive. These restrictions, and similar restrictions found in earlier NDAAs, specifically implicate the Executive's powers in foreign affairs and as Commander in Chief. Ford concludes that, with the exception of a similar provision found in the 2013 NDAA, the restrictions are constitutional.

Sindelar V. State, 132 Nev. Adv. Op. 68 (Sept. 29, 2016), Skyler Sullivan

Nevada Supreme Court Summaries

In Nevada, if a person is convicted three times within seven years for driving under the influence (DUI), the third conviction is a category B felony.2 The Court held that a felony DUI conviction in Utah, which occurs upon a person’s third DUI conviction within ten years, can be included as a past conviction in a later DUI offense in Nevada to make the offense a category B felony under NRS 484.410 because the conduct required to violate the Utah law is “the same or similar” as that required to violate the Nevada law.

Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen Henderson

Other Faculty Publications

Chairman Barrington, Vice Chair Brooks, members of the Committee on Public Safety, Senators, and distinguished guests, I am grateful for the opportunity to speak to you today about unmanned aerial systems, or drones, and more particularly about their federal constitutional implications and what might be the constitutional restrictions on any legislation you might like to enact. I am the Judge Haskell A. Holloman Professor of Law at the University of Oklahoma, where my teaching and research focus on criminal law and procedure and privacy, including the constitutional rights pertaining thereto.My topic is not an easy one. The constitutional law is …

Trending @ Rwu Law: Professor Niki Kuckes's Post: Video Highlights Litigation Academy: September 20, 2016, Niki Kuckes

Law School Blogs

No abstract provided.

New Approaches To Data-Driven Civilian Oversight Of Law Enforcement: An Introduction To The Second Nacole/Cjpr Special Issue, Daniel L. Stageman, Nicole M. Napolitano, Brian Buchner

Publications and Research

In April of 2016, National Association for Civilian Oversight of Law Enforcement (NACOLE) and John Jay College partnered to sponsor the Academic Symposium “Building Public Trust: Generating Evidence to Enhance Police Accountability and Legitimacy.” This essay introduces the Criminal Justice Policy Review Special Issue featuring peer-reviewed, empirical research papers first presented at the Symposium. We provide context for the Symposium in relation to contemporary national discourse on police accountability and legitimacy. In addition, we review each of the papers presented at the Symposium, and provide in-depth reviews of each of the manuscripts included in the Special Issue.

Manning V. State, 132 Nev. Adv. Op. 67 (September 15, 2016), Andrew Clark

Nevada Supreme Court Summaries

A request for a jury instruction on a lesser-included offense is sufficient if there is any evidence the defendant can be convicted of the lesser crime. Failure to give such an instruction is reversible error. Further, although NRS 175.161(6) allows district courts to settle jury instructions in chambers, district courts should solicit written copies of proposed jury instructions to ensure a clear record on appeal.

A Legal Obituary For Ramiro, Sheri Lynn Johnson

University of Michigan Journal of Law Reform

Most death penalty lawyers who practice long enough will watch the execution of a client. It is always, always terrible, but not always terrible in the same way. With each client’s execution, a lawyer is confronted with the death of a human being—not an accidental death, not an inevitable death, but an avoidable one—and with his or her own failure to prevent that death. Some executions also involve a very personal loss for the lawyer because of their relationship with the client. Other executions are horrific because things go awry and impose extreme suffering on the executed individual. No matter …

Newsroom: Kuckes On Grand Jury Secrecy 8/30/2016, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Martinez-Hernandez V. The State Of Nevada, 132 Nev. Adv. Op. 61 (Aug. 12, 2016), Angela Lee

Nevada Supreme Court Summaries

The Nevada Supreme Court determined that (1) if collateral consequences of a criminal conviction exist, a post-conviction petition for a writ of habeas corpus challenging the validity of a judgment of conviction, filed while imprisoned, is not moot once the petitioner is released, and (2) a criminal conviction creates a presumption that collateral consequences exist.

Mcnamara V. State, 132 Nev. Adv. Op. 60 (August 12, 2016), Annie Avery

Nevada Supreme Court Summaries

The Court determined that (1) the state of Nevada has territorial jurisdiction under NRS 171.020 when a defendant has criminal intent and he or she performs any act in this state in furtherance of that criminal intent; (2) territorial jurisdiction is a question of law for the court, not a question of fact for the jury; (3) the State bears the burden of proving territorial jurisdiction by a preponderance of the evidence; and (4) omitting a lesser offense on a jury form is not a reversible error where the jury is properly instructed on the lesser offense.

Newsroom: Good Reason For Secrecy On 38 Studios 8/12/2016, Niki Kuckes, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Beyond Body Cameras: Defending A Robust Right To Record The Police, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

A Bronx Tale: Disposable People, The Legacy Of Slavery, And The Social Death Of Kalief Browder, D. Marvin Jones

University of Miami Race & Social Justice Law Review

No abstract provided.

You Can’T Handle The Truth: A Primer On False Confessions, Craig J. Trocino

University of Miami Race & Social Justice Law Review

No abstract provided.

Taking The Direct File Statute To Criminal Court: Immigration Consequences For Juveniles, Marlon J. Baquedano

University of Miami Race & Social Justice Law Review

Florida is one of fifteen jurisdictions in the United States that have enacted a direct file statute that grants prosecutors the ability to transfer juveniles from the juvenile justice system to adult court. Critiques of the direct file statute have focused on its effectiveness on deterrence and recidivism, its arbitrariness in application, and the tension with the role of juvenile justice in reforming rather than punishing youth. This Note explores the harmful consequences of the direct file statute on non-citizen youth in immigration proceedings and the probability of obtaining immigration relief. An adult conviction as opposed to a juvenile delinquency …

Sentence Structure: Prohibiting “Second Or Successive” Habeas Petitions After Patterson V. Secretary, Christina M. Frohock

University of Miami Law Review

The Eleventh Circuit’s recent opinion in Patterson v. Secretary includes a heated dispute over the prohibition against “second or successive” habeas corpus petitions in 28 U.S.C.§ 2244(b). Considering an amended criminal sentence from Florida state court, the majority and dissenting opinions structure that sentence differently and, thus, apply the prohibition differently. This Article argues that both the majority and the dissent conceal policy judgments beneath the surface of legal decision-making. First, the Article analyzes the statutory prohibition against “second or successive” habeas petitions, as applied previously by the U.S. Supreme Court in Magwood v. Patterson and by the Eleventh Circuit …

Hurst V. Florida’S Ha’P’Orth Of Tar: The Need To Revisit Caldwell, Clemons, And Proffitt, Craig Trocino, Chance Meyer

University of Miami Law Review

In Hurst v. Florida, the Supreme Court held Florida’s death penalty scheme violated the Sixth Amendment because judges, rather than juries, found sentencing facts necessary to impose death. That Sixth Amendment ruling has implications for Florida’s Eighth Amendment jurisprudence.

Under the Eighth Amendment rule of Caldwell v. Mississippi, capital juries must appreciate their responsibility for death sentencing. Yet, Florida has instructed juries that their fact-findings merely support sentencing recommendations, while leaving the ultimate sentencing decision to a judge. Because Hurst clarifies that the Sixth Amendment requires juries to find the operative set of facts on which sentences are …

The Mann Act And Crossing State Lines: Maybe You Should Have Known, Alison Gross

Cardozo Law Review

No abstract provided.

The Hidden Psychology Of Constitutional Criminal Procedure, Jesse-Justin Cuevas, Tonja Jacobi

Cardozo Law Review

There is extensive empirical evidence establishing the difference in men's and women's speech patterns, conduct, and perceptions of, and responses to, police authority. Yet these differences are rarely reflected in constitutional criminal procedure law, despite many of its rules hinging on a person's manner of expression or subtleties of behavior. Similar evidence exists for the systematic impact of juvenile status and intellectual disability, but only modest and ad hoc consideration has been given to these factors. The result is that the "reasonable person" is actually implicitly white, male, adult, and able-minded. His speech and conduct are treated as normal, and …

Steve Dell Mcneill V. The State Of Nevada, 132 Nev. Adv. Op. 54 (July 28, 2016), Adrian Viesca

Nevada Supreme Court Summaries

The Supreme Court determined that the plain language of NRS 213.1243 does not grant the State Board of Parole Commissioners authority to impose additional conditions not enumerated in the statute when supervising sex offenders on lifetime supervision.

Jury Bias: Myth And Reality, Callie K. Terris

Politics Summer Fellows

Juries are often thought of as being fair and crucial to producing fair trials. Things such as scientific jury selection (SJS), peremptory challenges, jury size, and jury nullification skew jury verdicts by introducing biases that reflect the attitudes, characteristics, and behaviors of jurors. This paper demonstrates how bias is formed starting during the voir dire process and continuing until the rendering of a verdict. Each bias can lead to wrongful convictions such as conviction of the innocent or acquittal of the guilty. With a system that prides itself on the notion that justice is blind, the bias that is created …

Blankenship V. State, 132 Nev. Ad. Op 50 (Jul. 21, 2016), Heather Armantrout

Nevada Supreme Court Summaries

The Court considered whether scoring errors in criminal defendants’ Probation Success Probability (PSP) forms constituted “impalpable or highly suspect evidence,” thereby adversely influencing the Division of Parole and Probation’s (the Division) sentencing recommendations. The Court affirmed one criminal defendant’s judgment of conviction (Docket No. 66118), but it vacated his sentence and remanded for a new sentencing hearing. It held that the district court abused its discretion and that defendant’s sentence was prejudiced because the district court relied on an erroneous PSP form in reaching its sentencing decision. It affirmed the judgment of conviction and sentence of another criminal defendant (Docket …

Grace V. The Eight Judicial District Court Of The State Of Nevada, Adrienne Brantley

Nevada Supreme Court Summaries

This discusses whether Nevada justice courts have jurisdiction to rule on motions to suppress illegally obtained evidence. In March of 2014, the State filed a criminal complaint against LeCory Grace in the Las Vegas Justice Court. The complaint charged Grace with one count of possession of a controlled substance. At Grace’s preliminary hearing, Grace orally moved to suppress evidence that may have been illegally obtained. The justice court concluded that the search was unlawful, suppressed the evidence derived from the search and dismissed the case against Grace. The State appealed the justice court’s order of suppression and the Eighth Judicial …

Newsroom: Justin Bonus '11 In The New Yorker 7/8/2016, Jennifer Gonnerman, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Uncle Sam Is Watching You: A Recommendation For Minnesota Legislation Regarding Police Drone Use, Joe R. Paquette

Mitchell Hamline Law Review

No abstract provided.