Criminal Procedure Commons^™

Defying Gravity: The Development Of Standards In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity

Faculty Scholarship

The International Criminal Court (the “ICC”), now one decade old, is still in the process of setting norms as to scope, jurisdiction, and other issues. One issue that has thus far defied resolution is a key issue of jurisdiction: the place of complementarity in deciding whether certain criminal issues impacting international standards or interests should be decided before the ICC or national tribunals. Although the Rome Statute crystallizes definitions of core international crimes that may be tried before the ICC, the process of determining whether to leave jurisdiction with the nation or allowing jurisdiction to the ICC continues to lack …

Addressing Sexual Violence Against Youth In Custody: Youth Workers’ Handbook On Identifying And Addressing Sexual Violence In Juvenile Justice Settings, Brenda V. Smith, Jaime M. Yarussi

Research Reports & White Papers

From 1999 to 2012, The Project on Addressing Prison Rape (the Project) at American University’s Washington College of Law had a cooperative agreement with the National Institute of Corrections (NIC) to provide training to high-level correctional decisionmakers on key issues in addressing and investigating staff sexual misconduct. In 2003, with the enactment of the Prison Rape Elimination Act (PREA), the Project’s focus shifted to addressing prison rape—both staff sexual misconduct and offender-on-offender sexual abuse. In 2006, Smith Consulting began a collaborative effort with the Project and NIC to focus efforts on addressing sexual abuse of youth in custody. This handbook …

A Good Name: Applying Regulatory Takings Analysis To Reputational Damage Caused By Criminal History, Jamila Jefferson-Jones

Law Faculty Research Publications

No abstract provided.

Brady, Arkansas Rule 17.1, And Disclosure Of Scientific Evidence And Expert Opinion, J. Thomas Sullivan

University of Arkansas at Little Rock Law Review

The United States Constitution as well as state procedural rules require prosecutorial authorities to disclose evidence to the defense as a means for ensuring fairness in the prosecution of individuals charged with criminal offenses. When prosecutorial authorities fail to disclose evidence as required, the integrity of the criminal justice system is threatened and the defense is unable to adequately prepare for trial. This threat is illustrated and magnified by the substantiation of prosecutorial misconduct claims in high profile trials where prosecutors have been unable to resist the temptation not to disclose evidence that could damage the prosecution's case, or, where …

Brady, Arkansas Rule 17.1, And Disclosure Of Scientific Evidence And Expert Opinion, J. Thomas Sullivan

Law Faculty Scholarship

No abstract provided.

Furman, After Four Decades, J. Thomas Sullivan

Law Faculty Scholarship

Problems of racial discrimination in the imposition of capital sentences, disclosure of misconduct by prosecutors and police, inconsistency in the quality of defense afforded capital defendants, exoneration of death row inmates due to newly available DNA testing, and, most recently, controversies surrounding the potential for cruelty in the execution process itself continue to complicate views about the morality, legality, and practicality of reliance on capital punishment to address even the most heinous of homicide offenses. Despite repeated efforts by the Supreme Court to craft a capital sentencing framework that ensures that death sentences be imposed fairly in light of the …

Reclaiming Equality To Reframe Indigent Defense Reform, Lauren Sudeall Lucas

Faculty Publications By Year

Equal access to resources is fundamental to meaningful legal representation, yet for decades, equality arguments have been ignored in litigating indigent defense reform. At a time when underfunded indigent defense systems across the country are failing to provide indigent defendants with adequate representation, the question of resources is even more critical. Traditionally, advocates seeking indigent defense reform have relied on Sixth Amendment arguments to protect the rights of indigents in this context; however, the Sixth Amendment approach suffers from a number of shortcomings that have made it a poor tool for systemic reform, including its exclusive focus on attorney performance …

Reality Check: Detention In The War On Terror, Monica Eppinger

Catholic University Law Review

No abstract provided.

Can’T Touch This? Making A Place For Touch Dna In Post-Conviction Dna Testing Statutes, Victoria Kawecki

Catholic University Law Review

No abstract provided.

Stepping Into The Gap: Violent Crime Victims, The Right To Closure, And A Discursive Shift Away From Zero Sum Resolutions, Blanche Bong Cook

Law Faculty Research Publications

No abstract provided.

Sections 9, 10 And 11 Of The Canadian Charter, Steve Coughlan, Robert Currie

Articles, Book Chapters, & Popular Press

Section 9 of the Charter guarantees freedom from arbitrary detention, section 10 provides certain rights on arrest, and section 11 guarantees various rights to those charged with an offence. In this chapter the authors consider the aspects of these rights which have been authoritatively determined, as well as pointing to the areas which remain unsettled and discussing the areas of lingering controversy.

Imagining Success For A Restorative Approach To Justice: Implications For Measurement And Evaluation, Jennifer Llewellyn, Bruce Archibald, Donald Clairmont, Diane Crocker

Articles, Book Chapters, & Popular Press

Whether restorative justice is “successful,” or not, is a complex question. Attempts to answer this question by practitioners, professionals, and scholars have often been bounded by common notions of success in standard criminal justice terms. The authors of this paper suggest that if restorative justice is properly understood in terms of its focus on relationship, success should be measured on new and different dimensions. This paper seeks to bring a relational imagination to the scholarly effort of capturing the essence of restorative justice and figuring out how to assess its successes and failures. The authors offer a foundation and agenda …

Telus: Asking The Right Questions About General Warrants, Steve Coughlan

Articles, Book Chapters, & Popular Press

The general warrant provisions in the Criminal Code have often been interpreted by lower courts in a way which threatens to make that power quite open-ended, and to make those warrants available as a way of making an "end run" around the requirements of other provisions. This note argues that the Supreme Court of Canada is correct, in Telus,to adopt a "substantive equivalence" approach to general warrants, thereby limiting the circumstances in which they can be used. Lower courts have sometimes taken the view that a general warrant is only unavailable if the proposed technique would fall squarely within some …

Federal White Collar Sentencing In The United States: A Work In Progress, Daniel C. Richman

Faculty Scholarship

At first blush, it seems odd for an American contributor to an international conference on sentencing to focus on "high end" federal white collar sentencing. After all, federal cases make up a relatively small part of the U.S. criminal justice system. (Between October 2005 and September 2006, about 1,132,290 people were sentenced for a felony in state courts, and 73,009 in federal courts.) Even within the federal system, white collar cases of all sorts are a relatively small part of a criminal docket dominated by immigration, drug, and gun cases, which together comprised nearly 73% of all federal cases in …

"Dearest Property": Digital Evidence And The History Of Private "Papers" As Special Objects Of Search And Seizure, Donald A. Dripps

Journal of Criminal Law and Criminology

No abstract provided.

The International Criminal Court Ten Years Later: Appraisal And Prospects, Joseph M. Isanga

Cardozo Journal of International and Comparative Law

The International Criminal Court (ICC) faces significant challenges in achieving its objectives of deterrence, retribution, and ending impunity, primarily due to slow procedures, lack of state cooperation, and perceptions of bias. While the ICC has made qualitative contributions to international criminal law, its effectiveness is undermined by procedural inefficiencies, political interference, and limited enforcement mechanisms. The court's reliance on the complementarity principle and state cooperation highlights the tension between its judicial and political roles, with its future success contingent on addressing these systemic issues.

Illuminating Corruption Pathways: Modifying The Fcpa's "Grease Payment" Exception To Galvanize Anti-Corruption Movements In Developing Nations, Ivan Perkins

Cardozo Journal of International and Comparative Law

The article argues that the Foreign Corrupt Practices Act (FCPA) should be modified to require companies to report "grease payments," small bribes intended to expedite routine government actions. This change aims to enhance transparency, align U.S. law with stricter international standards, and combat corruption more effectively. The proposal suggests that mandating disclosure of such payments to the Department of Justice (DOJ), which would then publish the information online, would help activists, journalists, and foreign governments identify and address corruption. While the article acknowledges potential challenges, such as companies circumventing reporting or facing reputational risks, it emphasizes the long-term benefits of …

American Criminal Procedure In A European Context, Mar Jimeno-Bulnes

Cardozo Journal of International and Comparative Law

The article examines the historical and contemporary distinctions between the accusatorial and inquisitorial criminal justice systems, tracing their evolution from common law and civil law traditions. It highlights the increasing convergence of these models, particularly the influence of the U.S. adversarial system on European procedures, while critiquing the practical challenges and inefficiencies of both systems. The analysis emphasizes the tension between procedural fairness and efficiency, urging reforms to address these issues.

Why Strickland Is The Wrong Test For Violations Of The Right To Testify, Daniel J. Capra, Joseph Tartakovsky

Washington and Lee Law Review

A criminal accused has a constitutional right to testify in his own defense. The right has an undisputed place alongside the most important “personal” rights, like the right to remain silent or the right to represent oneself. But in the 1990s, courts began to apply the ineffective-assistance test of Strickland v. Washington to evaluate claims by a defendant that his right to testify was abridged. In practice this nullifies the right. Moreover, the Strickland test is inapposite because it focuses on counsel and not the defendant’s right to testify. This Article proposes a new test to better secure and enforce …

The New State Postconviction, Giovanna Shay

Faculty Scholarship

This Article examines two October Term 2011 Supreme Court cases – Maples v. Thomas and Martinez v. Ryan – which have a significant impact on the provision of counsel in state postconviction proceedings. In Maples and Martinez the Court expanded the circumstances in which deficient performance by state postconviction counsel can overcome procedural default, to permit the prisoner to litigate defaulted claims on the merits in federal habeas. The Author argues that, given the increased significance of state postconviction under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Maples and Martinez could have a salutary effect on the development of …

Dissent Into Confusion: The Supreme Court, Denialism, And The False “Scientific” Controversy Over Shaken Baby Syndrome, Joelle Moreno, Brian Homgren

Utah Law Review

In the United States Supreme Court's first opinion on the merits from its 2011-2012 term, three members of the Court contributed their authoritative voices to one of the most recent -- and one of the most deadly -- false scientific controversies, the purported scientific debate over the medical diagnosis of shaken baby syndrome (SBS), a prevalent form of abusive head trauma (AHT).

On October 31, 2011, in Cavazos v. Smith, the Supreme Court upheld Shirley Ree Smith's conviction for causing the death of her seven-week-old grandson, Etzel. This conviction was based on the jury finding that Etzel died from SBS. …

Due Process In Islamic Criminal Law, Sadiq Reza

Articles & Chapters

Rules and principles of due process in criminal law—how to, and how not to, investigate crime and criminal suspects, prosecute the accused, adjudicate criminal cases, and punish the convicted—appear in the traditional sources of Islamic law: the Quran, the Sunna, and classical jurisprudence. But few of these rules and principles are followed in the modern-day practice of Islamic criminal law. Rather, states that claim to practice Islamic criminal law today mostly follow laws and practices of criminal procedure that were adopted from European nations in the twentieth century, without reference to the constraints and protections of Islamic law itself. To …

Does Living By The Sword Mean Dying By The Sword, Charles Chernor Jalloh

Articles

This article examines the right to self-representation in international criminal law, and the common challenges posed for judges effectuating that right in international criminal courts. Using a comparative law approach, the paper demonstrates how the interpretation of that right initially borrowed heavily from U.S. common law and later European civil law to address the problems caused by self-representing, disruptive, and uncooperative defendants. Although the right to self-representation is a Sixth Amendment right in U.S. law, and an equally fundamental one in international law, the author contends that this right seems better in theory than in practice. Indeed, since no self-representing …

Proceedings Of The Seventh International Humanitarian Law Dialogs, Recent Developments In International Criminal Law: 2012–2013, Mark A. Drumbl

Scholarly Articles

This publication is based on Professor Drumbl’s keynote address on August 27, 2013 at the Seventh International Humanitarian Law Dialogs held in Chautauqua, New York.

Quarreling Over Quarles: Limiting The Extension Of The Public Safety Exception, Andrew T. Winkler

Richmond Public Interest Law Review

This article addresses the issue of whether the Quarles public safety exception applies after a suspect invokes his Fifth Amendment right to counsel. Due to the lack of guidance in the Quarles opinion, lower courts have expressed confusion as to whether the public safety exception applies to Edwards. Several courts have extended the exception, including the U.S. Court of Appeals for the Fourth and Ninth Circuits, while some state appellate courts have declined to do so. Part II of this article provides the requisite background for understanding Miranda's Fifth Amendment right to counsel, the Edwards rule, and the Quarles public …

Anchors Away: Why The Anchoring Effect Suggests That Judges Should Be Able To Participate In Plea Discussions, Colin Miller

Faculty Publications

The “anchoring effect” is a cognitive bias by which people evaluate numbers by focusing on a reference point – an anchor – and adjusting up or down from that anchor. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates. More than 90% of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor’s opening offer operates as an anchor, nearly all …

What Alex Kozinski And The Investigation Of Earl Bradley Teach About Searching And Seizing Computers And The Dangers Of Inevitable Discovery, Stephen E. Henderson

Faculty Articles

This paper tells two stories. One concerns the investigation of a Delaware physician named Earl B. Bradley that resulted in a conviction and sentence of fourteen consecutive life terms for the sexual abuse of children. The other concerns the computer problems, both judicial and extra-judicial, of Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. Though in a sense unrelated, they share lessons about the practicalities of computers and their search that are worth telling. As courts continue to struggle with how to cabin the searches of computers in order to minimize privacy intrusion …

Search, Seizure, And Immunity: Second-Order Normative Authority And Rights, Stephen E. Henderson, Kelly Sorensen

Faculty Articles

A paradigmatic aspect of a paradigmatic kind of right is that the rights holder is the only one who can alienate it. When individuals waive rights, the normative source of that waiving is normally taken to be the individual herself. This moral feature—immunity—is usually in the background of discussions about rights. We bring it into the foreground here, with specific attention to a recent U.S. Supreme Court decision, Kentucky v. King (2011), concerning search and seizure rights. An entailment of the Court’s decision is that, at least in some cases, a right can be removed by the intentional actions of …

Real-Time And Historic Location Surveillance After United States V. Jones: An Administrable, Mildly Mosaic Approach, Stephen E. Henderson

Faculty Articles

In United States v. Jones, the government took an extreme position: so far as the federal Constitution is concerned, law enforcement can surreptitiously electronically track the movements of any American over the course of an entire month without cause or restraint. According to the government, whether the surveillance be for good reason, invidious reason, or no reason, the Fourth Amendment is not implicated. Fortunately, that position was unanimously rejected by the High Court. The Court did not, however, resolve what restriction or restraint the Fourth Amendment places upon location surveillance, reflecting a proper judicial restraint in this nuanced and difficult …

Military Commissions And The Paradigm Of Prevention, David Cole

Georgetown Law Faculty Publications and Other Works

Why military commissions? Given the United States’s track record of success in trying terrorists in civilian criminal courts, and the availability of courts-martial to try war crimes, why has the United States government, under both the George W. Bush and Barack Obama administrations alike, insisted on proceeding through untested military commissions instead? In May 2009, President Obama defended military commissions with the following claims:

Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for …