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Articles 7171 - 7200 of 12064

Full-Text Articles in Criminal Procedure

Pain Detection And The Privacy Of Subjective Experience, Adam Kolber Jan 2007

Pain Detection And The Privacy Of Subjective Experience, Adam Kolber

Faculty Scholarship

No abstract provided.

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Bound And Gagged: The Peculiar Predicament Of Professional Jurors, Michael B. Mushlin Jan 2007

Bound And Gagged: The Peculiar Predicament Of Professional Jurors, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

This Article advocates two changes to the law. First, parties should be allowed (but not required) to strike professional jurors for cause in cases involving their expertise without any additional showing of a particular bias toward one side or the other. Second, if such jurors are empanelled, they should not be “gagged.” Rather, they should be free to draw on and share their expertise as are all other jurors. This Article proceeds in four Parts. Part I discusses recent reform efforts that have fundamentally altered the jury system by opening it up to increased numbers of professional jurors. Part II …

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Cross-Examination Earlier Or Later: When Is It Enough To Satisfy Crawford?, Christopher B. Mueller Jan 2007

Cross-Examination Earlier Or Later: When Is It Enough To Satisfy Crawford?, Christopher B. Mueller

Publications

No abstract provided.

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Fourth Amendment Lessons From The Highway And The Subway: A Principled Approach To Suspicionless Searches, Ricardo J. Bascuas Jan 2007

Fourth Amendment Lessons From The Highway And The Subway: A Principled Approach To Suspicionless Searches, Ricardo J. Bascuas

Articles

The threat of future terrorist attacks has sped the proliferation of random, suspicionless searches and seizures, such as those now made of New York City subway riders. Courts assess the legality of such searches with an inherently flawed balancing test developed to assess searches and seizures made without "probable cause." Although scholars and Justices alike have decried the resort to balancing individual interests against the government's need to search, no alternative framework has been proposed. This Article proposes a more principled, objective inquiry for determining when suspicionless searches can be made. To eliminate the need for balancing, this Article advances …

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"Acoustic Segregation" And The Hispanic Small Business Owner, Patricia S. Abril Jan 2007

"Acoustic Segregation" And The Hispanic Small Business Owner, Patricia S. Abril

Articles

No abstract provided.

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Constitutional Law—Fourth Amendment And Search And Seizure—Introducing The Supreme Court's New And Improved Summers Detention: Now Equipped With Handcuffing And Questioning! Muehler V. Mena, 544 U.S. 93 (2005), Ryan J. Caststeel Jan 2007

Constitutional Law—Fourth Amendment And Search And Seizure—Introducing The Supreme Court's New And Improved Summers Detention: Now Equipped With Handcuffing And Questioning! Muehler V. Mena, 544 U.S. 93 (2005), Ryan J. Caststeel

University of Arkansas at Little Rock Law Review

This note explores the United States Supreme Court's recent decision in Muehler v. Mena that extended the holding in Michigan v. Summers that allows police officers to handcuff and question occupants of a house who are lawfully being detained during the execution of a valid search warrant. First, the note examines the facts behind the Mena case itself. Second, the note explores the historical developments in Fourth Amendments jurisprudence that led up to the Mena decision. This section of the note focuses on the following five main topics: (1) the creation of the Fourth Amendment; (2) the evolution of the …

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Ethical And Effective Representation In Arkansas Capital Trials, J. Thomas Sullivan Jan 2007

Ethical And Effective Representation In Arkansas Capital Trials, J. Thomas Sullivan

Law Faculty Scholarship

No abstract provided.

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Reforming Federal Death Penalty Procedures: Four Modest Proposals To Improve The Administration Of The Ultimate Penalty, Robert E. Steinbuch Jan 2007

Reforming Federal Death Penalty Procedures: Four Modest Proposals To Improve The Administration Of The Ultimate Penalty, Robert E. Steinbuch

Law Faculty Scholarship

No abstract provided.

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First Amendment Freedom Of Speech And Expression: Ninth Circuit Holds That California Penal Code Section 148.6 Violates The First Amendment In Chaker V. Crogan, Harvey Gee Jan 2007

First Amendment Freedom Of Speech And Expression: Ninth Circuit Holds That California Penal Code Section 148.6 Violates The First Amendment In Chaker V. Crogan, Harvey Gee

Cardozo Public Law, Policy & Ethics Journal

The Ninth Circuit Court ruled that California Penal Code section 148.6, which criminalized knowingly filing false allegations of misconduct against peace officers, violated the First Amendment. The court determined that the law impermissibly targeted criticism of police officers, constituting a content-based restriction on speech, and thus was unconstitutional.

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Criminal Justice And The Challenge Of Family Ties, Dan Markel, Ethan J. Leib Jan 2007

Criminal Justice And The Challenge Of Family Ties, Dan Markel, Ethan J. Leib

Faculty Scholarship

This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a Spartan presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and …

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Truth, Deterrence, And The Impeachment Exception , James L. Kainen Jan 2007

Truth, Deterrence, And The Impeachment Exception , James L. Kainen

Faculty Scholarship

James v. Illinois permits illegally-obtained evidence to impeach defendants, but not defense witnesses. Thus far, all courts have construed James to allow impeachment of defendants' hearsay declarations. This article argues against allowing illegally-obtained evidence to impeach defendants' hearsay declarations because doing so unduly diminishes the exclusionary rule's deterrent effect. The distinction between impeaching defendants and defense witnesses disappears when courts allow prosecutors to impeach defendants' hearsay declarations. Because defense witnesses report exculpatory conduct of a defendant who always has a substantial interest in disguising his criminality, their testimony routinely incorporates defendant hearsay. Defense witness testimony thus routinely paves the way …

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The Principled Exception And The Forgotten Criterion, Steve Coughlan Jan 2007

The Principled Exception And The Forgotten Criterion, Steve Coughlan

Articles, Book Chapters, & Popular Press

The principled exception to the hearsay rule is routinely described as being settled by the "twin criteria" of necessity and reliability. In fact a third criterion is also — or at least ought to be — at play: that admitting the evidence through hearsay would not undermine any other rule of evidence. The Court has made reference to this third criterion in the past, but it has largely been ignored in both Supreme Court and lower court decisions. The recent judgement in Couture depends in a limited way on that question, and so it marks an opportunity to articulate the …

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Crawford And Davis: A Personal Reflection, Richard D. Friedman Jan 2007

Crawford And Davis: A Personal Reflection, Richard D. Friedman

Articles

I have to say that when I stood up to argue Hammon I felt the wind at my back. I was basically a lawyer with an easy case, and there wasn't anything particularly unpredictable at the argument of Hammon. Now it got a little bit interesting, as I will explain later, because to a certain extent I was trying to argue the other case as well. But Hammon itself was sort of ordinary, normal law.

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In Memoriam: Francis A. Allen, Yale Kamisar Jan 2007

In Memoriam: Francis A. Allen, Yale Kamisar

Articles

Francis A. Allen graced the law faculties of five universities in the course of a remarkable, forty-six-year teaching career. In that time, he established himself as one of the half-dozen greatest twentieth-century American scholars of criminal law and criminal procedure.

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Beyond Mitigation: Towards A Theory Of Allocution, Kimberly A. Thomas Jan 2007

Beyond Mitigation: Towards A Theory Of Allocution, Kimberly A. Thomas

Articles

THE COURT: I don't think I have time to listen .... I am not going to reexamine your guilt or innocence here. That is not the purpose of a sentence.. THE DEFENDANT: I did not have the chance to tell you .... THE DEFENDANT: But, your Honor, listen to me-1 Should the court hear this defendant? Is the story of innocence relevant at allocution-the defendant's opportunity to speak on his or her own behalf at the sentencing hearing prior to the imposition of sentence? Or, is the purpose of allocution something different, as the judge suggests? The answers depend on …

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Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross Jan 2007

Holmes V. South Carolina Upholds Trial By Jury, Samuel R. Gross

Articles

Bobby Lee Holmes was convicted of a brutal rape-murder and sentenced to death. The only evidence that connected him to the crime was forensic: a palm print, and blood and fiber evidence. (Biological samples taken from the victim for two rape kits were compromised and yielded no identifiable evidence.) Holmes claimed that the state's forensic evidence was planted and mishandled, and that the rape and murder were committed by another man, Jimmy McCaw White. At a pretrial hearing three witnesses testified that they saw White near the victim's house at about the time of the crime, and four others testified …

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Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca Bignami Jan 2007

Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca Bignami

Faculty Scholarship

This paper examines a recent twist in EU data protection law. In the 1990s, the European Union was still primarily a market-creating organization and data protection in the European Union was aimed at rights abuses by market actors. Since the terrorist attacks of New York, Madrid, and London, however, cooperation on fighting crime has accelerated. Now, the challenge for the European Union is to protect privacy in its emerging system of criminal justice. This paper analyzes the first EU law to address data privacy in crime-fighting—the Data Retention Directive. Based on a detailed examination of the Directive’s legislative history, the …

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Re-Evaluating The Theoretical Basis And Methodology Of International Criminal Trials, Dermot Groome Jan 2007

Re-Evaluating The Theoretical Basis And Methodology Of International Criminal Trials, Dermot Groome

Faculty Scholarly Works

No abstract provided.

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Selective Prosecution In Russia - Myth Or Reality?, Yelina Kvurt Jan 2007

Selective Prosecution In Russia - Myth Or Reality?, Yelina Kvurt

Cardozo Journal of International and Comparative Law

The note examines the issue of selective prosecution, focusing on the case of Mikhail Khodorkovsky, and argues that the Russian legal system lacks an explicit defense against such practices, which violate constitutional guarantees of equality before the law. It advocates for the adoption of a legal standard to address selective prosecution, drawing parallels with the U.S. legal framework while acknowledging the need to adapt it to Russia's unique judicial context.

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Domestic Violence And Legal Reforms In Nigeria: Prospects And Challenges, Itoro Eze-Anaba Jan 2007

Domestic Violence And Legal Reforms In Nigeria: Prospects And Challenges, Itoro Eze-Anaba

Cardozo Journal of Equal Rights & Social Justice

The article examines the challenges and prospects of legal reform aimed at addressing domestic violence against women in Nigeria. It highlights the inadequacy of current laws, the cultural and societal barriers that discourage victims from seeking redress, and the need for comprehensive legal and systemic changes to protect women's rights. The analysis emphasizes the importance of addressing economic, cultural, and educational disparities to create a more just and equitable legal framework.

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A Mystery Of Motherhood: The Legal Consequences Of Insufficient Research On Postpartum Illness, Lindsey C. Perry Jan 2007

A Mystery Of Motherhood: The Legal Consequences Of Insufficient Research On Postpartum Illness, Lindsey C. Perry

Georgia Law Review

Postpartum illness is a real and serious affliction, suffered by many mothers throughout the country. For decades, courts have struggled with the issue of how postpartum illness fits into the current framework for legal insanity. Recent publicity of the Andrea Yates trial and her subsequent acquittal brought postpartum psychosis to the attention of the American public. This Note explores the background of postpartum psychosis and its treatment in U.S. courts. It discusses the possibilities for addressing postpartum psychosis in criminal proceedings and proposes that further research and understanding are necessary to provide justice for female defendants afflicted with postpartum psychosis. …

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Georgia V. Randolph: Whose Castle Is It, Anyway?, Lesley Mccall Jan 2007

Georgia V. Randolph: Whose Castle Is It, Anyway?, Lesley Mccall

University of Richmond Law Review

The Fourth Amendment protects individuals against unreasonable searches and seizures. Generally, a warrant is required to conduct a lawful search of a person's home, and a warrantless search is unreasonable per se. However, there are some exceptions to this requirement. A warrantless search is reasonable if police obtain voluntary consent from a person to search their home or effects. The Supreme Court has also recognized that a third party with common authority over a household may consent to a police search affecting an absent co-occupant. The Supreme Court of the United States recently addressed whether third party consent was effective …

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Self-Incrimination And The European Court Of Human Rights: Procedural Issues In The Enforcement Of The Right To Silence, Mark Berger Jan 2007

Self-Incrimination And The European Court Of Human Rights: Procedural Issues In The Enforcement Of The Right To Silence, Mark Berger

Faculty Works

This article provides an analysis of the procedural aspects of the right to silence falling within Art. 6 of the European Convention on Human Rights. The author examines the jurisprudence of the European Court of Human Rights under the following areas: overview, appearance to answer questions, a demand for documents, false responses, warnings and adverse inferences. The subject is discussed at investigation stage, just prior to and during civil and criminal proceedings. The piece concludes with summaries of the jurisprudence in these varying circumstances.

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The Mcmartin Preschool Abuse Trial, Douglas O. Linder Jan 2007

The Mcmartin Preschool Abuse Trial, Douglas O. Linder

Faculty Works

The McMartin Preschool Abuse Trial, the longest and most expensive criminal trial in American history, should serve as a cautionary tale. When it was all over, the government had spent seven years and $15 million dollars investigating and prosecuting a case that led to no convictions. More seriously, the McMartin case left in its wake hundreds of emotionally damaged children, as well as ruined careers for members of the McMartin staff. No one paid a bigger price than Ray Buckey, one of the principal defendants in the case, who spent five years in jail awaiting trial for a crime (most …

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The Trial Of John Brown: A Commentary, Douglas O. Linder Jan 2007

The Trial Of John Brown: A Commentary, Douglas O. Linder

Faculty Works

The arrest, trial, and execution of John Brown in the fall of 1859 came at a critical moment in United State history. According to historian David S. Reynolds in his biography, "John Brown, Abolitionist: The Man Who Killed Slavery, Sparked the Civil War, and Seeded Civil Rights" (2005), Brown's actions and statements following his failed attempt to begin a slave insurrection near Harper's Ferry, Virginia so polarized northern and southern opinion on the slavery issue as to ensure Abraham Lincoln's election and cause the Civil War to occur perhaps two decades earlier than it might have otherwise. Reynolds is quick …

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The Trial Of Lizzie Borden, Douglas O. Linder Jan 2007

The Trial Of Lizzie Borden, Douglas O. Linder

Faculty Works

"Lizzie Borden took an axe, and gave her mother forty whacks. When she saw what she had done, she gave her father forty-one." Actually the Bordens received only 29 whacks, not the 81 suggested by the famous ditty, but the popularity of the poem is a testament to the public's fascination with the 1893 murder trial of Lizzie Borden. The source of that fascination might lie in the almost unimaginably brutal nature of the crime - given the sex, background, and age of the defendant - or in the jury's acquittal of Lizzie in the face of prosecution evidence that …

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The Trial Of Richard Bruno Hauptmann, Douglas O. Linder Jan 2007

The Trial Of Richard Bruno Hauptmann, Douglas O. Linder

Faculty Works

Journalist H. L. Mencken called the trial of Bruno Hauptmann, the accused kidnapper of the baby of aviator Charles Lindbergh, the greatest story since the Resurrection. While Mencken's description is doubtless an exaggeration, measured by the public interest it generated, the Hauptmann trial stands with the O. J. Simpson and Scopes trials as among the most famous trials of the twentieth century. The trial featured America's greatest hero, a good mystery involving ransom notes and voices in dark cemeteries, a crime that is every parent's worst nightmare, and a German-born defendant who fought against U. S. forces in World War …

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A Necessary And Proper Role For Federal Courts In Prison Reform: The Benjamin V. Malcolm Consentdecrees, Harold Baer Jr., Arminda Bepko Jan 2007

A Necessary And Proper Role For Federal Courts In Prison Reform: The Benjamin V. Malcolm Consentdecrees, Harold Baer Jr., Arminda Bepko

NYLS Law Review

No abstract provided.

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A Comparison Of Criminal Jury Decision Rules In Democratic Countries, Ethan J. Leib Jan 2007

A Comparison Of Criminal Jury Decision Rules In Democratic Countries, Ethan J. Leib

Faculty Scholarship

This paper furnishes jury system information about the twenty-eight democracies (excluding the United States) that have been consistently democratic since at least the early 1990s and have a population of five million people or more (with allowance for Mexico and South Africa). I describe general rules that do not always apply to every crime in every context. In the United States, for example, we tend to use a randomly-selected jury of twelve people that sits for a single case; laws generally require unanimity to convict and unanimity to acquit. Failure to reach unanimity results in a “hung” jury, with the …

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The Restorative Justice Wager: The Promise And Hope Of A Value-Based, Dialogue-Driven Approach To Conflict Resolution For Social Healing, Howard J. Vogel Jan 2007

The Restorative Justice Wager: The Promise And Hope Of A Value-Based, Dialogue-Driven Approach To Conflict Resolution For Social Healing, Howard J. Vogel

Cardozo Journal of Conflict Resolution

In this article, I explore the deep assumptions and commitments associated with what I have called the restorative justice wager and the way in which they are embodied in restorative justice dialogue, the heart of restorative justice practice, in order to describe the important contribution that restorative justice has to offer to conventional forms of conflict resolution that have emerged in recent years. For this purpose the article is divided into three parts. Part I explores the definition of restorative justice in a criminal context and beyond in order to set up the discussion of the restorative justice wager and …

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