Criminal Procedure Commons^™

Timing Brady, Miriam H. Baer

Faculty Scholarship

No abstract provided.

Death By Discovery, Delay, And Disempowerment: Legal Authority For Arbitrators To Provide A Cost-Effective And Expeditious Process, Tracey B. Frisch

Cardozo Journal of Conflict Resolution

Whether warranted or not, despite statistics to the contrary, arbitration in recent years has become a punching bag for criticism that it has begun to mirror the type of scorched earth discovery practices and delays seen in litigation. Why is this? Is it because parties are not actively participating in the arbitration process and instead have allowed their outside counsels to use the litigationstyle discovery and delay tactics with which counsel feel most comfortable? Maybe. Do parties themselves want protracted discovery and a drawn out arbitration process? Some, perhaps. Has arbitration become a victim of its own success, attracting more …

Advocacy As An Exercise In Virtue: Lawyering, Bad Facts, And Furman's High-Stakes Dilemma, Linda H. Edwards

Scholarly Works

Two of the conversations benefitting most from Jack Sammons's scholarship are conversations about legal rhetoric and about virtue ethics. Legal rhetoric is the study of the conventions of legal argument, specifically, the art of identifying and evaluating the best available means of persuasion and implementing those means effectively in light of audience, purpose, and occasion. Virtue ethics approaches moral reflection by asking what sort of person a particular moral choice encourages the actor to become. It focuses on consequences to the moral agent herself rather than directly focusing on consequences to others. The goal is to become a virtuous person, …

Confrontation After Ohio V. Clark, Anne R. Traum

Scholarly Works

The Supreme Court’s decision in Ohio v. Clark, provides an occasion to take stock of the Sixth Amendment Right to Confrontation since the court’s landmark 2004 decision in Crawford v. Washington. Crawford strengthened a defendant’s right to confront his accusers face-to-face, underscoring that cross-examination is the constitutionally preferred method for testing the reliability of accusatory statements. Clark could eliminate that right in a wide range of cases where, although the reliability of a declarant’s out-of-court statements is critically important, a defendant has no right to confrontation.

Free, But Still Behind Bars: Reading The Illinois Post-Conviction Hearing Act To Allow Any Person Convicted Of A Crime To Raise A Claim Of Actual Innocence, 35 B.C. J. L. & Soc. Just. 1 (2015), Hugh Mundy

UIC Law Open Access Faculty Scholarship

As the number of wrongfully convicted prisoners who are subsequently exonerated continues to rise, the importance of access to post-conviction relief also increases. Under the Illinois Post-Conviction Hearing Act, this access is restricted to petitioners who are currently imprisoned or otherwise facing a restraint on their liberty. Persons convicted of a crime who have completed their sentence are barred from pursuing post-conviction relief under the Act, regardless of the existence of exculpatory evidence that supports their innocence. Removing this procedural roadblock and interpreting the Act broadly to allow any person convicted of a crime to raise a claim of actual …

Why Illinois Should Adopt Federal Rule Of Evidence 803(18) To Allow The Learned Treatise Exception To The Hearsay Rule, 39 S. Ill. U. L.J. 275 (2015), Ralph Ruebner, Katarina Durcova, Amy Taylor

UIC Law Open Access Faculty Scholarship

Illinois still adheres to a rigid and outdated common law principle that treats a learned treatise as hearsay. This principle stands at odds with the adoption of Federal Rules of Evidence 703 ("FRE 703")' and 705 ("FRE 705") by the Illinois Supreme Court. Illinois courts have developed clever ways to get around the common law prohibition thereby creating an incoherent and inconsistent jurisprudence that at times yields bizarre outcomes.

Adopting the federal learned treatise exception to the hearsay rule would set out a consistent standard in Illinois for admitting learned treatises and allowing them as substantive evidence. Now that Illinois …

Asymmetry As Fairness: Reversing A Peremptory Trend, Anna Roberts

Faculty Scholarship

No abstract provided.

A Free Start: Community-Based Organizations As An Antidote To The Mass Incarceration Of Women Pretrial, Amber Baylor

Faculty Scholarship

In 1973, the feminist newsmagazine Off Our Backs featured a segment on women in jail awaiting trial in Washington, D.C. Many of the women faced minor charges, such as soliciting prostitution, but remained in detention because they could not afford to pay even very low amounts of monetary bail. The magazine interviewed Myrna Raeder, then a fellow at Georgetown, and other attorneys involved in a class action suit against D.C. corrections, who argued that low-income women were unjustly subjected to the punitive effects of pretrial detention, in violation of their due process rights. Raeder reported to the newsmagazine, “as a …

But What Can We Do? How Juvenile Defenders Can Disrupt The Schoolto-Prison Pipeline, Jonathon Arellano-Jackson

Seattle Journal for Social Justice

No abstract provided.

Reorienting Restorative Justice: Initiating A New Dialogue Of Rights Consciousness, Community Empowerment And Politicization, Thalia González

Cardozo Journal of Conflict Resolution

For the last three decades scholars have explored the practice of restorative justice as a crime control mechanism in a multitude of settings. Much of the discourse has focused on restorative justice as an alternative to traditional punitive and retributive criminal justice processes. Whether restorative or punitive, criminal justice processes that seek to address harm are not apart, above, or outside social, cultural and political relations. This Article seeks to initiate a new dialogue of justice and argues that the ontology of restorative justice should to be viewed to include a liberatory moment of politicization focused on promoting equality and …

Notice(Ing) Ex-Offenders: A Case Study Of The Manifest Injustice Of Passively Violating A "Felon-In-Possession" Statute, S. David Mitchell

Faculty Publications

Changing a law and criminalizing formerly legal conduct without providing notice of the change and without providing a reasonable period of time for the offending individual to comply with the change not only violates due process but is also manifestly unjust, especially given the scope and breadth of the collateral consequences that attach upon a felony conviction, such as the loss of the right to vote, to serve on a jury, or to receive certain benefits. With the far-reaching impact of a felony conviction on all areas of an individual's life, the maxim that "ignorance of the law excuses no …

Are Indiana’S Newly Expunged Convictions Still Available For Impeachment?, Graham Polando

Indiana Law Journal

During trial, a litigant can, of course, impeach a witness with certain criminal convictions. However, Indiana Evidence Rule 609(c), like its federal counterpart, prohibits parties from introducing such evidence when “the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated . . . .” Indiana, however, has no procedure for annulment or certificates of rehabilitation—and, until recently, had nothing resembling one.

To some fanfare, the General Assembly has recently enacted an expungement provision. As courts begin to grant these expungements, it is only …

Book Review, Angela Mae Kupenda

Journal Articles

Racial Reckoning: Prosecuting America’s Civil Rights Murders is an exceptional work by Renee C. Romano. This review will first discuss a concern I had prior to reading her book. Discussion of this alleviated concern will be followed by brief consideration of Romano’s well selected titled, which will be followed by a discussion of what I see as major contributions of the book.

Courts Caught In The Web: Fixing A Failed System With Factors Designed For Sentencing Child Pornography Offenders, Brendan J. Sheehan

Cleveland State Law Review

This Article introduces a Study, compiling data of 238 internet crimes against children occurring between 2008-2012, and concludes there is no correlation between presentence risk assessment scores and the subsequent sentences imposed by Northeast Ohio judges. The current risk assessment tools are insufficient and should be replaced by a comprehensive multi-factor approach that assesses relevant factors and identifies an offender’s placement on the “Spiral of Abuse” to aid Northeast Ohio judges in crafting fair, just, and consistent sentences for CPOs.

Better The Mob And The Ku-Klux: A History Of The Law Of Search And Seizure In Florida, Milton Hirsch

St. Thomas Law Review

As late as 1930, and on several occasions prior to that date, Harvard Law Professor Felix Frankfurter could offer, as an example of something that the Supreme Court would almost never be called upon to decide, "whether the [Fourth Amendment] protection against 'unreasonable searches and seizures' is violated. In 1939 Professor Frankfurter was appointed to the High Court, where he would serve for 23 years; and where, as Justice Frankfurter, he would participate in a great many notable opinions having to do with whether the Fourth Amendment protection against unreasonable searches and seizures had been violated. That Professor Frankfurter made …

Why Instrumentalism Matters, Kyron J. Huigens

Articles

Alon Harel argues that the acts of a public official acting with "fidelity of deference," are "necessary," "non-contingent," "intrinsic," "constitutive," integrative," "expressive," or "inherent" features of legal punishment. Accordingly, he calls his argument "noninstrumental." This can be taken as an argument for logical necessity, definition, extension, or modest or immodest conceptual necessity. Only the last interpretation fits Harel's text, but such an argument fails because instrumentality is necessarily present in any event in the natural world, including punishment. Harel does not say which aspects of natural instrumentality he means to exclude from his argument, or how, or why.

Is Deterrence Relevant In Sentencing White-Collar Criminals?, Peter J. Henning

Law Faculty Research Publications

No abstract provided.

Sentencing Rules And Standards: How We Decide Criminal Punishment, Jacob Schuman

Faculty Scholarship

Over the course of the past 300 years, American sentencing policy has alternated between “determinate” and “indeterminate” systems of deciding punishment. Debates over sentence determinacy have so far focused on three main questions: Who should decide punishment? What makes punishment fair? And why should we punish wrongdoers at all?

In this Article, I ask a new, fourth, question: How should we decide punishment? I show that determinate sentencing uses rules to determine sentences, while indeterminate sentencing relies on standards. Applying this insight to federal sentencing practice, I demonstrate that district court judges “depart” or “vary” from the United States Sentencing …

The Child Quasi-Witness, Richard D. Friedman, Stephen J. Ceci

Articles

This Essay provides a solution to the conundrum of statements made by very young children and offered against an accused in a criminal prosecution. Currently prevailing doctrine allows one of three basic outcomes. First, in some cases the child testifies at trial. But this is not always feasible, and when it is, cross-examination is a poor method for determining the truth. Second, evidence of the child's statement may be excluded, which denies the adjudicative process of potentially valuable information. Third, the evidence may be admitted without the child testifying at trial, which leaves the accused with no practical ability to …

Restorative Justice For Multinational Corporations, Andrew B. Spalding

Law Faculty Publications

Deterrence theory, rooted in the methodology of law and economics, continues to dominate both the theory and practice of white-collar crime. By manipulating the disincentives of prospective wrongdoers, deterrence aims to efficiently reduce crime and maximize taxpayers’ utility. However, the rise of international commerce presents a challenge it cannot meet. Using a combination of empirical evidence and quantitative modeling, this Article shows that deterrence will tend to increase, rather than decrease, net levels of corporate crime in developing countries. The ever-increasing power of multinational corporations thus calls for a new theory of punishment, one that uses criminal enforcement to address …

The Woes Of Roe: The Future Of Women's Reproductive Health In 2015, Victoria Dempsey

Public Interest Law Reporter

No abstract provided.

Transforming Piecemeal Social Engineering Into "Grand" Crime Prevention Policy: Toward A New Criminology Of Social Control, Joshua D. Freilich, Graeme R. Newman

Journal of Criminal Law and Criminology

This Article focuses on the Situational Crime Prevention (SCP) approach in criminology, which expands the crime reduction role well beyond the justice system. SCP sees criminal law in a more restrictive sense, as only part of the anticrime effort in governance. We examine the “general” and “specific” responses to crime problems in the SCP approach. Our review demonstrates that the most serious barrier to converting SCP techniques into policy remains the gap that exists between problem identification and problem response. We discuss past large-scale SCP interventions and explore the complex links between them and SCP’s better known specificity and piecemeal …

Fourth Amendment Fiduciaries, Kiel Brennan-Marquez

Faculty Articles and Papers

Fourth Amendment law is sorely in need of reform. To paraphrase Justice Sotomayor's concurrence in United States v. Jones, the idea that people have no expectation of privacy in information voluntarily shared with third-parties-the foundation of the widely reviled "third-party doctrine "-makes little sense in the digital age.

In truth, however, it is not just the third-party doctrine that needs retooling today. It is the Fourth Amendment's general approach to the problem of "shared information. " Under existing law, if A shares information with B, A runs the risk of "misplaced trust"-the risk that B will disclose the information to …

The Politics Of The Bail System: What's The Price For Freedom., Lydia D. Johnson

The Scholar: St. Mary's Law Review on Race and Social Justice

The only factor determining the release of a defendant from custody before his trial date is money. The government should eliminate the current bail system and replace it with mandated pre-trial release unless the state can prove the defendant to be a flight risk or a danger to society. This bail system has an adverse economic impact on minorities and on poor communities. Some states have used their constitutions to implement pre-trial release. Texas has four constitutional provisions which would permit similar implementations. However, clashing political ideologies and institutional alliances continue to prevent the construction of a workable solution. Dismantling …

Criminals Get All The Rights: The Sociolegal Construction Of Different Rights To Die, Meredith Martin Rountree

Journal of Criminal Law and Criminology

In the United States, different people have different rights to die. This Article traces the origins of death-sentenced prisoners’ ability to enlist assistance in dying and compares it to the considerably more circumscribed right held by people with serious illness. It uses empirical research on “volunteers,” death-sentenced prisoners who sought execution, to argue that the legal standard for adjudicating their requests to hasten execution should be changed. Empirical evidence suggests many of the concerns governing the regulation of assisted dying in the medical context are present in the death row case. This Article therefore urges courts to use a balancing …

Correctional Education Can Make A Greater Impact On Recidivism By Supporting Adult Inmates With Learning Disabilities, Angela Koo

Journal of Criminal Law and Criminology

This Comment brings attention to a group that is overlooked within our prisons—adult inmates with learning disabilities. These inmates currently face challenges in receiving appropriate educational programming. Recognizing that several studies support the proposition that education reduces recidivism, this Comment argues that correctional education programs must make reforms to accommodate adult inmates with learning disabilities in order for education to fully impact recidivism rates.

Reasonable Doubt And Moral Elements, Youngjae Lee

Journal of Criminal Law and Criminology

The law is axiomatic. In order to convict a person of a crime, every element of the crime with which he is charged must be proven beyond a reasonable doubt. This Article argues that this fundamental proposition of American criminal law is wrong. Two types of elements are typically found in crime definitions: factual elements and moral elements. Proving factual elements involves answering questions about historical facts—that is, questions about what happened. By contrast, proving moral elements—such as “reckless,” “unjustifiable,” “without consent,” or “cruel”—involves answering questions not only about what happened but also about the evaluative significance of what happened. …

Swift, Certain, And Fair Punishment: 24/7 Sobriety And Hope: Creative Approaches To Alcohol- And Illicit Drug-Using Offenders, Paul J. Larkin Jr.

Journal of Criminal Law and Criminology

Criminologists believe that the certain and swift imposition of a mild punishment has a greater deterrent effect than the remote and indefinite application of a severe punishment. Judges in South Dakota and Hawaii independently put that theory to the test and created innovative strategies to deal with substance abuse and crime. Those programs—the 24/7 Sobriety program in South Dakota and Hawaii’s Opportunity Probation with Enforcement—subject probationers to a rigorous alcohol or drug testing regimen backed up by a guaranteed and immediate but modest sentence of confinement for everyone who tests positive. Those programs have proved to be sensible, humane, and …

The Sound Of Silence: Evidentiary Analyses Of Precustodial Silence In Light Of Salinas V. Texas, Lukas Mansour

Journal of Criminal Law and Criminology

In the recent Supreme Court case Salinas v. Texas, the Court declined to answer whether precustodial silence should be admissible as evidence of a defendant’s guilt. This Comment uses the case as an example from which it argues that courts should take a different approach to precustodial silence. Rather than examining a defendant’s precustodial silence from a constitutional perspective, as many courts, including the Supreme Court, have done, this Comment argues that courts would be better served examining this type of silence from an evidentiary perspective instead.

Forensic Evidence And The Court Of Appeal For England And Wales, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

The Criminal Division of the Court of Appeal has extensively analyzed the role of forensic evidence. In doing so, the court has grappled with the admissibility and reliability of a broad range of forensic evidence, from DNA and computer forensics to medical and psychological proof, to more outlying subjects like facial mapping, fiber analysis, or voice identification. The court has analyzed these subjects from two perspectives: the admissibility of such evidence in the lower courts and the admissibility of such evidence as fresh evidence on appeal. In both contexts, the court has taken a practical approach to admitting forensic proof …