Criminal Procedure Commons^™

A Case For A Constitutional Right To Counsel In Habeas Corpus, Emily Garcia Uhrig

McGeorge School of Law Scholarly Articles

No abstract provided.

Performing Discretion Or Performing Discrimination: Race, Ritual, And Peremptory Challenges In Capital Jury Selection, Melynda J. Price

Michigan Journal of Race and Law

Research shows the mere presence of Blacks on capital juries-- on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully …

Rob Once, Serve Twice?: Punishment Under Both The Federal Bank Robbery Act And The Hobbs Act Violates The Double Jeopardy Clause, Jamie Zimmerman

Nevada Law Journal

No abstract provided.

Policing, Place, And Race, Bennett Capers

Faculty Scholarship

No abstract provided.

Proportional Mens Rea, Stephen F. Smith

Journal Articles

This Essay makes the case for "proportional mens rea," a proportionality-based approach to mens rea selection. Proportional mens rea would provide proportionality safeguards that are otherwise entirely lacking in substantive criminal law and,as a practical matter, unavailable in constitutional law. Creating implied mens rea requirements, where necessary to ensure proportional punishment, is not a judicial usurpation of a legislative function. Rather, it is to take seriously the role that courts play, under both constitutional and substantive criminal law, to ensure that punishment "fits" the crime. Moreover, proportional mens rea would represent a needed counterweight to prosecutorial behavior whereas current doctrine …

Procedural Obstacles To Reviewing Ineffective Assistance Of Trial Counsel Claims In State And Federal Postconviction Proceedings., Eve Brensike Primus

Articles

Ineffective assistance of trial counsel is one of the most frequently raised claims in state and federal postconviction petitions. This is hardly surprising given reports of trial attorneys who refuse to investigate their cases before trial, never meet with their clients before the day of trial, and fail to file any motions or object to inadmissible evidence offered at trial. Unfortunately, the current structure of indigent defense funding makes it impossible for many public defenders to provide effective representation to their clients.

Giles V. California: A Personal Reflection, Richard D. Friedman

Articles

In this Essay, Professor Friedman places Giles v. California in the context of the recent transformation of the law governing the Confrontation Clause of the Sixth Amendment. He contends that a robust doctrine of forfeiture is an integral part of a sound conception of the confrontation right. One reason this is so is that cases fitting within the traditional hearsay exception for dying declarations can be explained as instances of forfeiture. This explanation leads to a simple structure of confrontation law, qualified by the principle that the confrontation right may be waived or forfeited but not subject to genuine exceptions. …

Ensuring Defense Counsel Competence At International Criminal Tribunals, Sonja B. Starr

Articles

This article addresses the problem of incompetent representation by defense counsel in international criminal tribunals. According to the author, the ineffectiveness of a particular attorney may be attributable to a number offactors, including a lack of experience with international criminal law, unfamiliarity with the procedures of international criminal tribunals, and the simple failure to be fluent in the languages used by the court. Starr explains that the problem of incompetence persists because of obstacles to the recruitment, retention, and appointment of proficient defense lawyers, as well as the lack of administrative or judicial oversight concerning competence. The author points out …

Commentary: Was The Bill Of Rights Irrelevant To Nineteenth-Century State Criminal Procedure?, Carolyn B. Ramsey

Publications

No abstract provided.

In The Sweat Box: A Historical Perspective On The Detention Of Material Witnesses, Carolyn B. Ramsey

Publications

After the September 11 terrorist attacks, the Justice Department detained scores of allegedly suspicious persons under a federal material witness statute--a tactic that provoked a great deal of controversy. Most critics assume that the abuse of material witness laws is a new development. Yet, rather than being transformed by the War on Terror, the detention of material witnesses is a coercive strategy that police officers across the nation have used since the nineteenth century to build cases against suspects. Fears of extraordinary violence or social breakdown played at most an indirect role in its advent and growth. Rather, it has …

Colorado V. Connelly: What Really Happened, William T. Pizzi

Publications

In 1986, the Supreme Court decided Colorado v. Connelly, a landmark case in due process and fifth amendment law. The case began when Francis Barry Connelly approached a police officer on the street in downtown Denver to confess to having killed a young woman several months earlier in southwest Denver. Because Connelly was suffering from acute schizophrenia and was hearing auditory hallucinations commanding him to confess, state courts suppressed his statements to the police on the grounds (1) that his statements before arrest were involuntary and inadmissible under the due process clause and (2) those statements post-arrest could not …

Clemency In California Capital Cases, Mary-Beth Moylan, Linda Carter

McGeorge School of Law Scholarly Articles

No abstract provided.

Herring V. United States: Mapp's "Artless" Overruling?, Michael Vitiello

McGeorge School of Law Scholarly Articles

No abstract provided.

Before The Verdict And Beyond The Verdict: The Csi Infection Within Modern Criminal Jury Trials, Tamara F. Lawson

Articles

In criminal law, the term “CSI Effect” commonly refers to the perceived impact the CSI television show has on juror expectation and unexpected jury verdicts. This article coins a new phrase, “CSI Infection,” by focusing on the significant legal impact that the fear of “CSI Infected Jurors” has made upon the criminal justice system. The CSI Infection is the ubiquitous “It” factor that scholars cannot conclusively prove nor effectively explain away; however, practitioners overwhelmingly confirm the CSI Effect’s impact on criminal jury trials. The CSI Effect’s existence, the CSI Effect’s true or perceived impact on acquittals and convictions, and how …

A Safe Haven For Nixzmary Brown, Chantal L. Hamlin

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Penalizing Poverty: Making Criminal Defendants Pay For Their Court-Appointed Counsel Through Recoupment And Contribution, Helen A. Anderson

Articles

Over thirty years ago the United States Supreme Court upheld an Oregon statute that allowed sentencing courts, with a number of important procedural safeguards, to impose on indigent criminal defendants the obligation to repay the cost of their court appointed attorneys. The practice of ordering recoupment or contribution (application fees or co-pays) of public defender attorney's fees is widespread, although collection rates are unsurprisingly low.

Developments since the Court's decision in Fuller v. Oregon show that not only is recoupment not cost-effective, but it too easily becomes an aspect of punishment, rather than legitimate cost-recovery. In a number of jurisdictions, …

Honesty Is The Best Policy: A Case For The Limitation Of Deceptive Police Interrogation Practices In The United States, Irina Khasin

Vanderbilt Journal of Transnational Law

In the United States, police officers regularly employ deceptive interrogation tactics to extract confession evidence from suspects. Despite widespread recognition of the harm caused by police deception, courts in the United States have consistently condoned the practice, refusing to exclude confessions obtained through manipulative and deceitful means. The British Parliament has recognized that deceptive police practices yield false confessions and, thus, wrongful convictions. The Police and Criminal Evidence Act of 1984 addresses this concern by establishing clear rules for the police to follow and by empowering courts to enforce those rules. In evaluating the need for reform in American police …

Truth Or Legality: The Limits On The Laundering Of Illegally Gathered Evidence In A State Under The Rule Of Law (Verdad O Legalidad: Los Límites Del Blanqueo De Pruebas Ilegalmente Recogidas En Un Estado De Derecho) (Spanish), Stephen C. Thaman

All Faculty Scholarship

This paper discusses the tension between the constitutional rights to silence and to privacy and the important goal of criminal procedure to ascertain the truth. It traces exclusionary rules from the inquisitorial rules relating to nullities, to modern constitutional, statutory and jurisprudential rules for excluding illegally gathered evidence.

Note: downloadable document is in Spanish

Place Mattters (Most): An Empirical Study Of Prosecutorial Decision-Making In Death-Eligible Cases, Katherine Y. Barnes, David L. Sloss, Stephen C. Thaman

All Faculty Scholarship

This article investigates prosecutorial discretion in death penalty prosecution in Missouri. Based upon an empirical analysis of all intentional-homicide cases from 1997-2001, this article concludes that Missouri law gives prosecutors unconstitutionally broad discretion in charging these cases. This article also finds that prosecutors exercise this broad discretion differently, leading to geographic and racial disparities in sentencing, and concludes with proposals for statutory reform.

The Precarious Situation Of Human Rights In The United States In Normal Times And After September 11, 2001 (La Situación Precaria De Los Derechos Humanos En Estados Unidos En Tiempos Normales Y Después Del 11 De Septiembre De 2001) (Spanish), Stephen C. Thaman

All Faculty Scholarship

The paper criticizes the impact of U. S. American criminal law and procedure on the human rights of U. S. citizens in normal times and the changes that have occurred since the terrorist attacks of September 11, 2001. It deals with racial profiling, the death penalty, Draconian prison sentences in normal times, and the use of unlimited detention, torture and expanded powers of wiretapping and evidence gathering since the attacks of 9-11.

Note: downloadable document is in Spanish

In Defense Of Victim Impact Statements, Paul Cassell

Utah Law Faculty Scholarship

This paper provides a comprehensive justification of "victim impact statements" in criminal sentencing, explaining how such statements are important to crime victims and how the critics of such statements fail to grapple with the need for these statements to victims.

Analysis Of Videotape Evidence In Police Misconduct Cases, Martin A. Schwartz, Jessica Silbey, Jack Ryan, Gail Donoghue

Faculty Scholarship

Many evidentiary issues arise with respect to the admission of videotape evidence and computer generated simulations at trial, and the authors of this Article address these issues as they arise in police misconduct cases. Professor Schwartz provides insight into and analysis of the evidentiary principles that govern the use of video and computer simulation evidence at trial in cases where police misconduct is at issue. His discussion first addresses the issues that concern the admissibility of videotape evidence, then discusses the role of a videotape on summary judgment, and lastly, analyzes evidentiary issues with respect to computer generated simulations.

A Witness To Justice, Jessica Silbey

Faculty Scholarship

In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the right kind of witness would …

Interrogation And Silence: A Comparative Study, Craig M. Bradley

Articles by Maurer Faculty

This article examines interrogation practices in detail in three systems: the American, the English (and Welsh), and the Canadian while also discussing rules from various other countries. It considers when the Miranda-type warnings (required in all three systems) must be given and when suspects will be deemed to have waived their rights. This article further discusses how reliability and voluntariness of confession is assured. Finally, a particular emphasis is placed on the issue of when a suspect's silence during interrogation may be used against him in court. The article concludes that American courts have not done enough to ensure reliability …

"Who's The Man?": Masculinities Studies, Terry Stops, And Police Training, Frank Rudy Cooper

Scholarly Works

In this article, Professor Frank Rudy Cooper examines how masculinity contests specifically, and masculinities studies generally, affect policing. He reviews the hegemonic masculinities school of thought and identifies the following background principles of the hegemonic pattern of masculinities in the United States: (1) men's concern with the opinions of other men; (2) anxiety over whether one has proved one's manhood; (3) a competitiveness reflected in a need to dominate other men and a general aggressiveness; and (4) a denigration of contrast figures reflected in a repudiation of femininity and homosexuality as well as subordination of racial minorities. Then he identifies …

Judges Judging Judicial Candidates: Should Currently Serving Judges Participate In Commissions To Screen And Recommend Article Iii Candidates Below The Supreme Court Level?, Mary Clark

Scholarly Articles in Law Reviews & Journals

In the lead-up to the 2008 presidential election, the American Bar Association (ABA), among others, called upon the next president to reform the federal judicial selection process by using bipartisan commissions to screen and recommend Article III candidates for presidential nomination and Senate confirmation below the Supreme Court level. This proposal may well find support in the Obama administration, given the new president’s emphasis on bipartisan consensus-building and transparency of government operations. This Article addresses one question that the ABA and others have not: Should currently serving judges participate in bi-partisan commissions to screen and recommend Article III candidates below …

A Fair Trial, Not A Perfect One: The Early Twentieth-Century Campaign For The Harmless Error Rule, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

From just after the turn of the twentieth century through World War II, there was a great deal of activity around criminal justice reform. Much like today, many commentators in the early twentieth century considered the American criminal justice system to be broken. With regard to all of its phases-substance, sentencing, and procedure-the criminal justice system was thought to be inefficient and ineffective, and it failed to inspire the confidence of the bench, bar, or public.

Against this backdrop, a group of reformers sought to address the shortcomings of early twentieth-century criminal justice-during what I consider the "Golden Age" of …

Inter-American System, Diego Rodriguez-Pinzon

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Women's Protocol To The African Charter And Sexual Violence In The Context Of Armed Conflict Or Other Mass Atrocity, Susana Sacouto, Katherine A. Cleary

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Law Of Armed Conflict And Detention Operations In Afghanistan, Matthew C. Waxman

Faculty Scholarship

In reflecting on the arc of US and coalition detention operations in Afghanistan, three key issues related to the law of armed conflict stand out: one substantive, one procedural and one policy. The substantive matter – what are the minimum baseline treatment standards required as a matter of international law? – has clarified significantly during the course of operations there, largely as a result of the US Supreme Court's holding in Hamdan v. Rumsfeld. The procedural matter – what adjudicative processes does international law require for determining who may be detained? – eludes consensus and has become more controversial …