Criminal Procedure Commons^™

Poor, Black And "Wanted": Criminal Justice In Ferguson And Baltimore, Michael Pinard

Faculty Scholarship

No abstract provided.

Youth Charged As Adults: The Use And Outcomes Of Transfer In Baltimore City, Jason R. Tashea, Al Passarella

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Make Them Hear You: Participatory Defense And The Struggle For Criminal Justice Reform, Janet Moore, Marla Sandys, Raj Jayadev

Faculty Articles and Other Publications

This Article introduces participatory defense as a powerful new model for improving public defense and challenging mass incarceration. This grassroots movement empowers the key stakeholders — people who face criminal charges, their families, and their communities — to become change agents who force greater transparency, accountability, and fairness from criminal justice systems. After introducing the model’s core principles and goals, the Article offers innovative analyses from doctrinal, theoretical and empirical perspectives. First, the Article connects participatory defense with the crisis-ridden history of the constitutional right to counsel, including that doctrine’s roots in the Due Process right to be heard. Second, …

The Immortal Accusation, Lindsey Webb

Sturm College of Law: Faculty Scholarship

In the American criminal justice system, accusations have eternal life. Prosecutors, judges, and prison officials regularly consider dismissed charges and even prior acquittals in the defendant’s criminal history when making decisions ranging from the filing of charges to the imposition of punishment. This Article argues that the criminal justice system’s reliance on “accusation evidence” should be understood as furthering its larger allegiance to attaining and preserving findings of guilt.

Once the government obtains a guilty plea or verdict, appellate courts rarely overturn convictions based on concerns about the accuracy of the conviction; indeed, post-conviction review procedures often are structured to …

In The Courts: Sentencing Juvenile Offenders, Hsin-Hisn Lee

Children's Legal Rights Journal

No abstract provided.

Stepping Beyond Nuremberg’S Halo: The Legacy Of The Supreme National Tribunal Of Poland, Mark A. Drumbl

Scholarly Articles

The Supreme National Tribunal of Poland (Najwyzszy Trybunal Narodowy (Tribunal)) operated from 1946 to 1948. It implemented the 1943 Moscow Declaration in the case of suspected Nazi war criminals. This article unpacks two of the Tribunal’s trials, that of Rudolph Hoess (Kommandant of Auschwitz (Oswiecim) and Amon Goeth (commander of the Krakow-Plaszow labour camp). Following an introduction, the article proceeds in four sections. Section 2 sets out the Tribunal’s provenance and background, offering a flavour of the politics and pressures that contoured (and co-opted) its activities so as to recover its place within the imagined spaces of international criminal accountability. …

The Two-Sided Speedy Trial Problem, Brooks Holland

Washington Law Review Online

This article is a response to Shon Hopwood, https://digitalcommons.law.uw.edu/wlr/vol89/iss3/3/">The Not So Speedy Trial Act, 89 Wash. L. Rev. 709 (2014).

The Maryland Access To Justice Story: Indigent Defendants’ Right To Counsel At First Appearance, Douglas L. Colbert

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

A Silver Bullet: Should The Mere Presence Of Ammunition Create A Reasonable Suspicion Of Criminal Activity?, 48 J. Marshall L. Rev. 843 (2015), Kyle Gruca

UIC Law Review

No abstract provided.

Recent Development: State V. Hunt: A Petitioner Who Files For A Writ Of Actual Innocence Has The Right To A Hearing Based On Newly Discovered Evidence When The Pleading Substantially Complies With Md. Crim. Proc. § 8-301 And Md. Rule 4-332, Daniel M. Weir

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the trial court erred in denying a hearing on a petition for a writ of actual innocence based on newly discovered evidence, when petitioners substantially complied with the pleading requirements under Section 8-301 of the Maryland Code, Criminal Procedure Article (“section 8-301”) and Maryland Rule 4-332.

Recent Development: In Re Tyrell A.: Trial Courts Generally May Not Order Restitution To An Individual Whose Voluntary Participation In A Crime Or Delinquent Act Results In Injury, Andrew Middleman

University of Baltimore Law Forum

The Court of Appeals of Maryland held that Sections 11-601(j) and 11- 603(a) of the Maryland Code, Criminal Procedure Article, do not authorize trial courts to order restitution to an individual who suffers an injury while voluntarily participating in a crime or delinquent act, “absent exceptional circumstances.” In re Tyrell A., 442 Md. 354, 383, 112 A.3d 468, 485 (2015). Accordingly, the court of appeals vacated a juvenile court’s restitution order to an individual who suffered nasal injuries while participating in the common law offense of affray.

Emergence From Civil Death: The Evolution Of Expungement In West Virginia, Valena Beety, Michael Aloi, Evan Johns

Articles by Maurer Faculty

Ninety-two million Americans have a criminal record—nearly one in three adults. This criminal record can include an arrest that did not lead to a conviction, a conviction for which the person did not serve time in prison, or a conviction for a nonviolent crime. All can have a similar impact on an individual’s job prospects and on local economies. Incarcerating adult Americans costs a combined $68 billion annually at the local, state, and federal levels. The cost of lost wages and lost financial contributions to society by ex-offenders is even higher.

This financially immobilized population of former offenders may be …

Instrumentalizing The Expressive: Transplanting Sentencing Circles Into The Canadian Criminal Trial, Toby S. Goldbach

All Faculty Publications

This Article examines reforms to criminal sentencing procedures in Canada, focusing on Aboriginal healing circles, which were incorporated as “sentencing circles” into the criminal trial. Using the lens of comparative law and legal transplants, this Article recounts the period of sentencing reform in Canada in the 1990s, when scholars, practitioners, and activists inquired into Aboriginal confrontation with the criminal justice system by comparing Euro-Canadian and Aboriginal justice values and principles. As a way to bridge the gap between vastly differing worldviews and approaches to justice, judges and Aboriginal justice advocates transplanted sentencing circles into the sentencing phase of the criminal …

The Smarter Sentencing Act: Achieving Fairness Through Financially Responsible Federal Sentencing Policies, 48 J. Marshall L. Rev. 911 (2015), Colleen Shannon

UIC Law Review

No abstract provided.

The Little “Black” Pill: Dressing Unlikely Murderers For Defense Success, 48 J. Marshall L. Rev. 933 (2015), Cassandra Wich

UIC Law Review

No abstract provided.

Jones, Lackey, And Teague, 48 J. Marshall L. Rev. 961 (2015), J. Richard Broughton

UIC Law Review

In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane. By comprehensively addressing the merits of the Teague bar as applied to Lackey claims, and making …

Amending Rape Shield Laws: Outdated Statutes Fail To Protect Victims On Social Media, 48 J. Marshall L. Rev. 1087 (2015), Sydney Janzen

UIC Law Review

This Comment will first discuss the discoverability and admissibility of social media evidence in criminal and/or civil sexual assault cases. Section II(A) provides a broad overview of both federal and state rape shield laws, including the legislative policies behind their enactments, as well as the modern expansion of social media in the context of the legal system. Section II(B) will address the modern utility of social media in the context of the legal system. Section III first analyzes how courts look at discoverability and admissibility of social media evidence generally, and then focuses on sexual assault cases specifically. Further, Section …

Guidelines For Guidelines: Implications Of The Confrontation Clause's Revival For Federal Sentencing, 48 J. Marshall L. Rev. 1039 (2015), Sopen Shah

UIC Law Review

Scholars and commentators heavily criticize the current federal sentencing system for over-incarceration, racial disparities in outcomes, and a lack of procedural protections for criminal defendants. This Article focuses on a procedural protection recently revived by the Supreme Court’s 2004 decision in Crawford v. Washington: the Confrontation Clause of the Sixth Amendment. Though Crawford only addressed the Clause’s application during trial, the case and its reasoning have important implications for today’s federal sentencing regime under the Federal Sentencing Guidelines. Though the Supreme Court has yet to directly address the issue, I argue that lower courts incorrectly interpret an old, pre-Crawford case …

An Eighth Amendment Analysis Of Statutes Allowing Or Mandating Transfer Of Juvenile Offenders To Adult Criminal Court In Light Of The Supreme Court's Recent Jurisprudence Recognizing Developmental Neuroscience, Katherine I. Puzone

Faculty Scholarship

No abstract provided.

The Surprising Acquittals In The Gotovina And Perisic Cases: Is The Icty Appeals Chamber A Trial Chamber In Sheep's Clothing, Mark A. Summers

Faculty Scholarship

No abstract provided.

Mirandizing Terrorism Suspects? The Public Safety Exception, The Rescue Doctrine, And Implicit Analogies To Self-Defense, Defense Of Others, And Battered Woman Syndrome, Bruce Ching

Journal Articles

This article argues that in creating the public safety exception to the Miranda requirements, the Supreme Court implicitly analogized to the criminal law doctrines of self-defense and defense of others. Thus, examining the justifications of self-defense and defense of others can be useful in determining the contours of the public safety exception and the related "rescue doctrine" exception. In particular, the battered woman syndrome -- which is recognized in a majority of the states and has been successfully invoked by defendants in some self-defense cases -- could provide a conceptual analogue for arguments about whether law enforcement officers were faced …

Trade Secret Hacking, Online Data Breaches, And China’S Cyberthreats, Peter K. Yu

Cardozo Law Review de•novo

Taking advantage of the forum provided by this timely Symposium, this Article closely examines the ongoing debate on China’s sustained effort in using online hacking and other intrusive techniques to steal trade secrets and proprietary data from U.S. businesses. Part I outlines the five common narratives that have thus far been advanced to recount this widely criticized effort. Sensing the narratives’ negative overtones, Part II offers five modest suggestions on how a more positive debate can be constructed to help identify ways to reduce online hacking and data breaches as well as to enhance the protection of trade secrets and …

Policing Sex: The Colonial, Apartheid, And New Democracy Policing Of Sex Work In South Africa, I. India Thusi

Faculty Scholarship

The history of the policing of sex work in South Africa reveals the surprisingly contradictory manners that legal regulations, police action, and public discourses have all “policed” sex work to meet competing goals. Sex work has generally been subject to formal state policing in the form of legal regulations and laws, which mostly focus on the public nuisance aspects of it. However, there has also been a more informal policing of sex work through public discourses in the media, medical community, and amongst activists. These various forms of policing are at times contradictory, and may result in various approaches toward …

Serial: The Presumption Of Guilt, Staff Editors

University of Baltimore Law Review

Below is a transcript of a panel discussion with key participants in the defense of Adnan Syed which inspired the popular Serial podcast. The Student Bar Association of the University of Baltimore School of Law hosted the event on February 12, 2015.

Evidence Of A Third Party's Guilt Of The Crime That The Accused Is Charged With: The Constitutionalization Of The Soddi (Some Other Dude Did It) Defense 2.0, Edward J. Imwinkelried

Loyola University Chicago Law Journal

No abstract provided.

Condoning The Crime: The Elusive Mens Rea For Complicity, Alexander F. Sarch

Loyola University Chicago Law Journal

There is a long history of disagreement about what the mens rea for complicity is. Some courts take it to be the intention for the underlying crime to succeed while others take mere knowledge of the underlying crime to be sufficient. Still others propose that the mens rea for complicity tracks the mens rea of the underlying crime—the so-called “derivative approach.” However, as argued herein, these familiar approaches face difficulties. Accordingly, we have reason to continue our search for the elusive mens rea for complicity. This Article develops a new account of the mens rea for complicity, drawing on an …

Against Professing: Practicing Critical Criminal Procedure, Mae Quinn

Journal Articles

No abstract provided.

Introduction To The Symposium On Entrepreneurial Lawyering, Anthony J. Luppino, Ellen Suni

Faculty Works

No abstract provided.

The Complexity Of International Criminal Trials Is Necessary, 48 Geo. Wash. Int'l L. Rev. 151 (2015), Stuart Ford

UIC Law Open Access Faculty Scholarship

There is a widespread belief among both academics and policymakers that international criminal trials are too complex. As a result, tribunals have come under enormous pressure to reduce the complexity of their trials. However, changes to trial procedure have not meaningfully affected trial complexity. This Article explains why these changes have failed and argues that the complexity of international criminal trials is necessary for them to achieve their purposes.

Using a multiple regression model of the factors driving trial complexity at the International Criminal Tribunal for the former Yugoslavia (ICTY), this Article shows that the largest drivers of complexity are …

On The Argument That Execution Protocol Reform Is Biomedical Research, Paul J. Litton

Faculty Publications

Regardless of whether the Supreme Court rightly upheld Oklahoma’s execution protocol in Glossip, Oklahoma officials had inadequate reason to choose midazolam as the anesthetizing agent in its procedure. Their decision is one example illustrating Seema Shah’s point that death penalty states are engaged in “poorly designed experimentation that is not based on evidence.” Shah argues that “an important factor” causing the high rate of botched executions is that lethal injection reform is a type of human subjects research that is going unregulated. Shah argues that research requirements, such as informed consent and IRB review, are necessary to render the research …