Criminal Procedure Commons^™

Such Visible Fiction: The Expansion Of Scott V. Harris To Prisoner Eighth Amendment Excessive Force Claims, Nina Frank

Cardozo Law Review

No abstract provided.

And Death Shall Have No Dominion: How To Achieve The Categorical Exemption Of Mentally Retarded Defendants From Execution, J. Amy Dillard

University of Richmond Law Review

No abstract provided.

Modifying The Restrictions On Sentence Modification: United States V. Cobb, Jackie Bosshardt

BYU Law Review

No abstract provided.

Sidestepping Deference: How United States V. Ressam Encourages Overly Stringent Review Of Sentencing Decisions, Joseph Leavitt

BYU Law Review

No abstract provided.

And Death Shall Have No Dominion: How To Achieve The Categorical Exemption Of Mentally Retarded Defendants From Execution, J. Amy Dillard

All Faculty Scholarship

This article examines the Court’s categorical exclusion of mentally retarded defendants from execution and explores how trial courts should employ procedures to accomplish heightened reliability in the mental retardation determination; it maintains that if a mentally retarded defendant is subjected to a death sentence then the Atkins directive has been ignored. To satisfy the Atkins Court’s objective of protecting mentally retarded defendants from the “special risk of wrongful execution,” the article explores whether trial courts should engage in a unified, pre-trial competency assessment in all capital cases where the defendant asserts mental retardation as a bar to execution and how …

Facing The Unfaceable: Dealing With Prosecutorial Denial In Postconviction Cases Of Actual Innocence, Aviva Orenstein

San Diego Law Review

This Article develops a question that intrigued Fred: prosecutors’ duties postconviction to prisoners who might be innocent. Although Fred wrote about a panoply of questions that arise regarding the prosecutor’s duty to “do justice” after conviction, this Article will address one specific area of concern: how and why prosecutors resist allowing DNA testing and, more startlingly, deny the obvious implications of DNA evidence when that evidence exonerates the convicted.

Part II of this Article briefly summarizes two of Fred’s major articles on the subject of prosecutorial ethics. Part III documents the problem of postconviction DNA exonerations and prosecutors’ varied reactions. …

Clarity And Confusion: Rico's Recent Trips To The United States Supreme Court, Randy D. Gordon

Faculty Scholarship

The complicated structure of the Racketeer and Corrupt Organization Act has bedeviled courts courts and litigants since its adoption four decades ago. Two questions have recurred with some frequency. First, is victim reliance an element of a civil RICO claim predicated on allegations of fraud? Second, what is the difference between an illegal association-in-fact and an ordinary civil conspiracy? In a series of three recent cases, the United States Supreme Court brought much needed clarity to the first question. But in another recent case, the Court upended decades of circuit-court precedent holding that an actionable association-in-fact must be embody a …

Summary Of Dieudonne V. State, 126 Nev. Adv. Op. No. 1, Charles Gianelloni

Nevada Supreme Court Summaries

Appeal from a criminal defendant claiming an absolute right to be sentenced by the same judge who accepted his plea deal. Defendant also objects to victim impact statements that were given at his sentencing trial, but were not properly sworn.

Violence Against Women In The United States And The State’S Obligation To Protect: Civil Society Briefing Papers On Community, Military And Custody Submitted To The United Nations Special Rapporteur On Violence Against Women, Rashida Manjoo, In Advance Of Her Mission To The United States Of America, Brenda V. Smith, Ashley Prather, Jaime M. Yarussi

Research Reports & White Papers

The Special Rapporteur on violence against women, its causes and consequences visited the United States of America from 24 January to 7 February 2011. In the present report, she broadly examines the situation of violence against women in the country, including such issues as violence in custodial settings, domestic violence, violence against women in the military and violence against women who face multiple, intersecting forms of discrimination, particularly native American, immigrant and African-American women.

The Special Rapporteur highlights the positive legislative and policy initiatives undertaken by the Government to reduce the prevalence of violence against women, including the enactment and …

When The Child Abuser Has A Bible: Investigating Child Maltreatment Sanctioned Or Condoned By A Religious Leader, Basyle Tchividjian, Victor Vieth

Faculty Publications and Presentations

In many cases of child sexual and physical abuse, perpetrators use religious or spiritual themes to justify their abuse of a child. Although no known religion in modern culture suggests that sexual abuse is condoned or taught as part of its tenets, some church leaders engage in conduct suggesting the child is equally, if not more to blame than the perpetrator, while also urging immediate reconciliation between the perpetrator and victim. In more than one case, pastors have asked children to confess their own “sins” in being sexually abused and have even required children to “confess” in front of an …

Attribution Of Criminal Liability A Critical Comparison Of The Us Doctrine Of Conspiracy And The Icty Doctrine Of Joint Criminal Enterprise From An American Perspective, Mark A. Summers

Faculty Scholarship

No abstract provided.

Prosecution Without Representation, Douglas L. Colbert

Faculty Scholarship

Nearly 50 years after the Supreme Court's landmark ruling in Gideon v. Wainwright established indigent defendants' constitutional right to counsel, poor people throughout the country still remain without a lawyer when first appearing before a judicial officer who determines pretrial liberty or bail. Absent counsel, low-income defendants unable to afford bail remain in jail for periods ranging from 3-70 days until assigned counsel appears in-court. Examining Walter Rothgery's wrongful prosecution, the article includes a national survey that informs readers about the limited right to counsel at the initial appearance and the extent of delay in each of the 50 states. …

Rectifying Wrongful Convictions: May A Lawyer Reveal Her Client's Confidences To Rectify The Wrongful Conviction Of Another? (A Roundtable Discussion Of The Aba's Standards For Criminal Litigation), James E. Moliterno

Scholarly Articles

None available.

Quieting Cognitive Bias With Standards For Witness Communications, Melanie D. Wilson

Scholarly Articles

Last year, as part of a project to revise the ABA Criminal Justice Standards for Prosecution and Defense Functions, the ABA Criminal Justice Section initiated roundtable discussions with prosecutors, criminal defense lawyers, and academics throughout the United States. The Standards under review provide aspirational guidance for all criminal law practitioners. This Article stems from the Criminal Justice Section's undertaking. It considers the wording, scope, and propriety of several of the proposed changes that address lawyer-witness communications. It begins with a discussion of the effects of cognitive bias on these communications and explains why carefully tailored Standards may lessen the detrimental …

Realizing Padilla's Promise: Ensuring Noncitizen Defendants Are Advised Of The Immigration Consequences Of A Criminal Convictions, Yolanda Vazquez

Faculty Articles and Other Publications

On March 31, 2010 the United States Supreme court decided Padilla v. Kentucky and created a Sixth Amendment duty for defense attorneys to advise defendants of the immigration consequences of a criminal conviction. While Padilla answered the broad question of whether there is a duty to advise a defendant under the Sixth Amendment, it left many questions unanswered. One critical inquiry is how defense attorneys and the courts will determine what advice concerning the immigration consequences of the criminal conviction will satisfy defense counsels’ Sixth Amendment duty under Padilla.

This Article discusses the potential detrimental impact of Padilla’s ambiguous holding …

Global Issues In Criminal Procedure, Linda Carter, Christopher L. Blakesley, Peter J. Henning

McGeorge School of Law Teaching Materials

This book provides an overview of constitutional issues that arise when searches, seizures, and interrogations occur outside the United States. Global Issues examines prosecutions in U.S. courts that involve evidence obtained abroad and the reach of the Fourth Amendment when the searches and seizures involve U.S. citizens abroad compared with non-U.S. citizens. Cases such as Verdugo-Urquidez and Alvarez-Machain are included, along with sections on electronic surveillance and the reach of the Fifth Amendment and Due Process Clause abroad, plus materials on torture and extraordinary renditions. There is also a short discussion of indefinite detention in places like Guantanamo Bay, Afghanistan, …

She Blinded Me With Science: Wrongful Convictions And The "Reverse Csi-Effect", Mark A. Godsey

Faculty Articles and Other Publications

Prosecutors in the United States are often heard to complain these days of the "CSI-effect.'' Jurors today, the theory goes, have become spoiled as a result of the proliferation of these "high-tech" forensic shows, and now unrealistically expect conclusive scientific proof of guilt before they will convict. What I have come to notice, however, is a different kind a reverberation from the CSI-type shows that I believe often hurts defendants and benefits the prosecution. While not reported or discussed in the popular media as is the "CSI Effect," the other side of the coin, which I will call the "Reverse …

Coercive Plea Bargaining: The Unrecognized Scourge Of The Justice System, H. Mitchell Caldwell

Catholic University Law Review

No abstract provided.

Atrocity Crimes Litigation Year-In- Review (2010): A Gender Perspective, Valerie Oosterveld

Law Publications

No abstract provided.

Annual Juvenile Recidivism Report, Becky Noréus

Justice Policy

Executive Summary:

The Maine Department of Corrections (MDOC) Division of Juvenile Services (DJS) contracts with the Muskie School of Public Service in a state-university partnership to analyze juvenile recidivism rates. DJS measures juvenile justice outcomes to guide policy and program development geared toward recidivism reduction. Reduction of youth recidivism in Maine increases public safety.

Recidivism in this report is defined as a re-adjudication (juvenile) or conviction (adult) for an offense committed by a youth in Maine within three years of his or her first adjudication. This report measures DJS impact on youth who have been adjudicated and placed under supervision …

Sentencing Circles, Clashing Worldviews, And The Case Of Christopher Pauchay, Toby S. Goldbach

All Faculty Publications

The case of Christopher Pauchay demonstrates some of the differences between predominant Euro-Canadian and First Nations approaches to dispute resolution. The principles of sentencing circles sometimes overlap with the principles of restorative justice and suggest their potential incorporation into the criminal justice system. The use of alternative processes that share some common values is not enough to overcome to chasm between Euro-Western and Aboriginal justice. Where underlying worldviews diff er, those who can choose between competing values amidst limited possibilities will likely choose the values that refl ect the conventional system. A comparison of Euro-Western and Aboriginal approaches to crime …

Simplifying Discovery And Production: Using Easy Frameworks To Evaluate The 2009 Term Of Cases, Eric R. Carpenter

Faculty Publications

No abstract provided.

Missouri Provides Cost Of Sentences And Recidivism Data: What Does Cost Have To Do With Justice?, Michael A. Wolff

All Faculty Scholarship

The Missouri Sentencing Advisory Commission in 2010, which has an information-based sentencing information system, added two items of information to its Web-based Automated Sentencing Information feature: (1) the cost of each sentencing option and (2) the recidivism rate for offenders – with similar risk factors – who received sentences for the same offense or category of offenses. Because sentencing decisions in Missouri are discretionary, judges are free to use or to disregard the information. For many offenses, however, it is possible for an advocate to argue or for a judge (or the public) to conclude that a more harsh sentence …

In Order To Be Silent, You Must First Speak: The Supreme Court Extends Davis's Clarity Requirement To The Right To Remain Silent In Berghuis V. Thompkins, 44 J. Marshall L. Rev. 423 (2011), Harvey Gee

UIC Law Review

No abstract provided.

Convicted By A Sleeping Jury: Harmless Error Or A Challenge To The Integrity Of Our Criminal Justice System, 44 J. Marshall L. Rev. 751 (2011), Rhandi Childress

UIC Law Review

No abstract provided.

One Day Criminal Careers: The Armed Career Criminal Act's Different Occassions Provisions, 44 J. Marshall L. Rev. 963 (2011), Jenny W.L. Osborne

UIC Law Review

No abstract provided.

Confrontation And Domestic Violence Post-Davis: Is There And Should There Be A Doctrinal Exception, Eleanor Simon

Michigan Journal of Gender & Law

Close to five million intimate partner rapes and physical assaults are perpetrated against women in the United States annually. Domestic violence accounts for twenty percent of all non-fatal crime experienced by women in this county. Despite these statistics, many have argued that in the past six years the Supreme Court has "put a target on [the] back" of the domestic violence victim, has "significantly eroded offender accountability in domestic violence prosecutions," and has directly instigated a substantial decline in domestic violence prosecutions. The asserted cause is the Court's complete and groundbreaking re-conceptualization of the Sixth Amendment right of a criminal …

Addressing The Overrepresentation Of The Maori In New Zealand's Criminal Justice System At The Sentencing Stage: How Australia Can Provide A Model For Change, Joanna Hess

Washington International Law Journal

New Zealand’s 2002 Sentencing Act provides several ways a sentencing court may take an offender’s cultural or ethnic background into account. Given the disproportionate rate of recidivism among New Zealand’s indigenous Maori offenders and international and domestic concerns regarding this problem, the Act’s provisions offer one method for addressing and mitigating this issue. However, these sentencing provisions remain largely unknown or underused. This comment argues that in order to tackle these concerns, left unaddressed by the current Sentencing Act, New Zealand should restructure its sentencing provisions to follow the legislative model that is developing in Australian states, particularly the model …

Once, Twice, Three Times A Victim: Why A Defendant In A Sexual Assault Case Has No Right To Compel Physical Examinations, Jenny M. Flanigan

West Virginia Law Review

No abstract provided.

Interrogation And The Roberts Court, Jonathan Witmer-Rich

Law Faculty Articles and Essays

Through 2010, the Roberts Court decided five cases involving the rules for police interrogation under the Fifth and Sixth Amendments: Kansas v. Ventris; Montejo v. Louisiana; Florida v. Powell; Maryland v. Shatzer; and Berghuis v. Thompkins. This Article argues that these decisions show the Roberts Court reshaping constitutional interrogation rules according to a new (as-yet unarticulated) principle: “fair play” in interrogations. The Warren Court believed that suspects in police interrogation were vulnerable to inherent compelling pressures; the Court correspondingly created procedural interrogation rules under the Fifth and Sixth Amendments (Miranda and Massiah) to protect suspects. The Roberts Court does not …