Criminal Procedure Commons^™

A Public Choice Theory Of Criminal Procedure, Keith N. Hylton, Vikramaditya Khanna

Faculty Scholarship

We provide an additional justification for the pro-defendant bias in Anglo-American criminal procedure that supplements the most commonly forwarded justifications to date. The most commonly forwarded rationale for the prodefendant bias is that the costs of false convictions-specifically, the sanctioning and deterrence costs associated with the erroneous imposition of criminal sanctions-are greater than the costs of false acquittals. We argue that this rationale provides at best a partial justification for the extent of prodefendant procedural rules. Under our justification, prodefendant protections serve primarily as constraints on the costs associated with rent seeking in the law enforcement process. The theory developed …

The Myopia Of U.S. V. Martinelli: Extraterritorial Jurisdiction In The 21st Century, Christopher L. Blakesley

Scholarly Works

Beginning in January 1999 and continuing through January 2000, a U.S. soldier began frequenting an off-post Internet cafe in Darmstadt, Germany, called the Netzwork Café. There he would download images of child pornography and search Internet websites, logging onto Internet chat rooms in order to communicate with individuals willing to send him images of naked children and children engaged in sex acts.

Specialist Martinelli was eventually caught and charged with various violations of 18 U.S.C. § 2252A for knowingly mailing, transporting or shipping child pornography in interstate or foreign commerce (by computer); knowingly receiving child pornography that had been mailed, …

Special Issues Raised By Rape Trials, Aviva A. Orenstein

Articles by Maurer Faculty

Rape cases reveal core conflicts in the space where evidence, law, and ethics intersect. Such conflicts include the tension between victim protection and the rights of the accused, the challenges attorneys face trying to negotiate the demands of sensitive and emotionally difficult cases, and the role of the law in counteracting stereotypes and bias.

In this essay, I will begin by presenting the cultural milieu surrounding rape allegations, briefly reviewing attitudes towards perpetrators and victims. Next, I will attempt to capture the legal zeitgeist concerning rape, focusing on two recent phenomena: the reversal of false rape convictions based on DNA …

Writing The Circle: Judicially Convened Sentencing Circles And The Textual Organization Of Criminal Justice, Emma Cunliffe, Angela Cameron

All Faculty Publications

Trial court judges who work in remote Northern Canadian Aboriginal communities use judicially convened sentencing circles to gather information and develop sentencing recommendations in some intimate violence cases. Proponents claim that judicially convened sentencing circles are a restorative justice practice that heals the offender, his community, and the survivor of the violence. Proponents also look to sentencing circles as a tool to find a just outcome that minimizes Aboriginal men's incarceration. We use a methodology developed by feminist sociologist Dorothy Smith to consider whether the institutional priorities being established and approved by courts in sentencing circle cases provide adequate protection …

Confronting The Evolving Safety And Security Challenge At Colleges And Universities, Oren R. Griffin

Articles, Chapters in Books and Other Contributions to Scholarly Works

Colleges and universities have long been scrutinized and confronted with lawsuits regarding safety and security measures designed and implemented to protect students and prevent dangerous incidents on campus. Under the doctrine of in loco parentis, college administrators assume responsibility for the physical safety and well-being of students as they matriculate through their academic programs. However, in recent decades, the realization that university communities are not immune to criminal activity has led to federal legislation and judicial opinions that have attempted to identify what legal duty colleges and universities have to prevent security breaches. Moreover, college and university administrators have looked …

Guilty Pleas And Barristers' Incentives: Lessons From England, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

When considering the defendant's plea, barristers, like lawyers, have two overriding, selfish interests: maximizing remuneration and avoiding sanction. The tension between defendant and defender is most acute when the defendant is indigent and the defender has been chosen to represent him. It is their relationship that is addressed in this article.

The goal is to align the defender's selfish interests with the defendant's need for thoughtful advice over how to plead, so that, behind the guise of apparently disinterested advice, the advocate is not pursuing his interests at the defendant's expense. By contrast to most American practice, the method of …

"I Ain't Takin' No Plea": The Challenges In Counseling Young People Facing Serious Time, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Criminal defendants daily entrust their liberty to the skill of their lawyers. The consequences of the lawyer’s decisions fall squarely upon the defendant. There is nothing untoward in this circumstance. To the contrary, the lawyer as the defendant’s representative is at the core of our adversary process.

As practicing lawyers know, interviewing and counseling are at the heart of legal representation. This is what lawyers do, even trial lawyers: we talk with and advise clients. As criminal lawyers know, the decision whether to go to trial is “the most important single decision” a client faces, and requires wise counsel. …

Judging Untried Cases, Daniel C. Richman

Faculty Scholarship

That federal criminal trials are an endangered species is clear. During fiscal year 2004, only 4% (3346) of the 83,391 federal defendants in terminated cases went to trial. And, trends that Professor Ronald Wright highlights in his insightful article have continued past the end point of his data. In 1994, 4639 defendants obtained verdicts from juries and 1050 from judges; in 2003, just 2909 and 615, respectively, did so. Every time one thinks that the system has hit an equilibrium at some “natural” distribution, the trial rate goes down a bit more.

Institutional Competence And Organizational Prosecutions, Daniel C. Richman

Faculty Scholarship

The business pages regularly provide graphic stories about corporate deferred prosecution agreements (“DPAs”). And commentators regularly fulminate about this alleged abuse of government power, quite confident (or w illfully blind to the fact) that the removal of this non-nuclear option from the prosecutorial arsenal would substantially lessen the ability of prosecutors to obtain cooperation from firms and their employees. Yet this emerging practice has received all too little scholarly attention, and Professor Brandon Garrett has made an important contribution by carefully examining the available facts and creatively drawing on the structure reform literature to highlight questions it raises about legitimacy …

Why Not A Miranda For Searches?, Gerard E. Lynch

Faculty Scholarship

I am delighted to be here today.

I am delighted to be at The Ohio State University, which has not only built a truly extraordinary criminal law and procedure faculty, including Professor Joshua Dressler, Alan Michaels, Sharon Davies, and Douglas Berman, but has also accumulated a large number of alumni of my home institution, Columbia Law School, including my former students, Professor Edward Foley and the aforesaid Professors Davies and Michaels, as well as Professor Deborah Jones Merritt, who is quite literally a daughter of Columbia, where her father is a distinguished emeritus member of the faculty, my esteemed senior …

Slow Dancing With Death: The Supreme Court And Capital Punishment, 1963-2006, James S. Liebman

Faculty Scholarship

This Article addresses four questions:

Why hasn't the Court left capital punishment unregulated, as it has other areas of substantive criminal law? The Court is compelled to decide the death penalty's constitutionality by the peculiar responsibility it bears for this form of state violence.

Why didn't the Court abolish the death penalty in Furman v. Georgia after finding every capital statute and verdict unconstitutional? The Cruel and Unusual Punishment Clause was too opaque to reveal whether the death penalty was unlawful for some or all crimes and, if not, whether there were law-bound ways to administer it. So the Court …

The (Futile) Search For A Common Law Right Of Confrontation: Beyond Brasier's Irrelevance To (Perhaps) Relevant American Cases, Randolph N. Jonakait

Articles & Chapters

After Crawford v. Washington asserted that the Confrontation Clause constitutionalized the common law right of confrontation, cases have been suggested that illustrate that right. This short essay considers whether the 1779 English case Rex v. Brasier is such a decision, as some contend. The essay concludes that Brasier says nothing about the right of confrontation and points to a comparable framing-era, American case that indicates that general rules about hearsay and confrontation were not at issue. The essay maintains that if the historical understandings of the right of confrontation and hearsay are to control the Confrontation Clause, then framing-era, American …

Does Warrantless Wiretapping Violate Moral Rights?, Evan Tsen Lee

Faculty Scholarship

No abstract provided.

Summary Of Summers V. State, Nev. Adv. Op. No. 112, Jason Ray

Nevada Supreme Court Summaries

Appeal from a judgment of conviction, entered after jury verdict, for first-degree murder with the use of a deadly weapon, and assault with the use of a deadly weapon, attempted murder with the use of a deadly weapon, and assault with the use of a deadly weapon, and from sentences of life in prison without the possibility of parole.

Summary Of Johnson V. State, Nev. Adv. Op. No. 113, Jason Ray

Nevada Supreme Court Summaries

Appeal from a death sentence and conviction by jury of four counts of first degree murder with the use of a deadly weapon, among other crimes, after a death sentence entered by a three judge panel was appealed and vacated.

Summary Of Santana V. State, 122 Nev. Adv. Op. No. 121, Robert Stephens

Nevada Supreme Court Summaries

Appeal from a conviction in the Eighth Judicial District Court of 19 counts of coercion resulting in five consecutive life sentences without the possibility of parole and fourteen concurrently running life sentences. Appellant argues that the jury instructions did not instruct the jury to apply the reasonable person test and therefore seeks a new trial.

Summary Of Thomas V. State, 122 Nev. Adv. Op. 114, 148 P.3d 727, James Robertson

Nevada Supreme Court Summaries

Appeal from a death sentence following a second penalty hearing conducted pursuant to a remand by the Nevada Supreme Court.

Summary Of Rosas V. State, Nev. Adv. Op. No. 106, Sherry Moore

Nevada Supreme Court Summaries

The district court convicted Appellant of committing battery upon an officer and rejected Appellant’s proffered jury instruction on the crime resisting a public officer, a lesser-included offense of battery upon an officer.s

Book Review, Erin Murphy

Journal of Legal Education

No abstract provided.

Summary Of Mitchell V. State, 122 Nev. Adv. Op. No. 107, Aubree Nielsen

Nevada Supreme Court Summaries

Appeal from the denial of a post-conviction petition for a writ of habeas corpus in a criminal case.

Picking Up The Pieces Of The Gordian Knot: Towards A Sensible Merger Methodology, Bruce A. Antkowiak

ExpressO

This question of merger is one of the most perplexing that courts face in the criminal sentencing process. This article not only explores that question but proposes specific new methods a court may use to resolve this question in a way consonant with the Constitution and the intent of the legislature.

The article takes as its starting point a brilliant analysis of the Double Jeopardy doctrine set out by Professor Ann Poulin of Villanova Law School in an article entitled Double Jeopardy and Multiple Punishment: Cutting the Gordian Knot, 77 U. Colo. L. Rev. 595 (2006). Professor Poulin’s work demonstrates …

An Unprecedented Curtailment Of Liberty: Samson V. California And Its Gift Of A Limitless Blank Check For “Arbitrary, Capricious, Or Harassing” Searches And Seizures , Jillian Ostrove

ExpressO

No abstract provided.

Milstein V. Chief Military Prosecutor, Edna Arbel, Aharon Barak, Edmond E. Levy

Translated Opinions

Facts: The appellant was convicted of the offence of using dangerous drugs while he was serving in the IDF. During his interrogation by the police, he confessed to using the drugs, but in his trial he pleaded not guilty and exercised his right to remain silent and not to testify in his own defence.

Following the case law of the Supreme Court, a defendant cannot be convicted solely on the basis of a confession, even when it is freely and willingly given. ‘Something extra’ is required in order to convict him. The District Court Martial and the Appeals Court Martial …

Summary Of Calvin V. State, 122 Nev. Adv. Op. 100, Michelle L'Hommedieu

Nevada Supreme Court Summaries

NRS 178.400, Nevada's standard for a defendant's competency to stand trial, conforms to the standard set out by the United States Supreme Court in Dusky v. United States.

Child Statements In A Post-Crawford World: What The United States Supreme Court Failed To Consider With Regard To Child Victims And Witnesses, Allie Phillips

ExpressO

With the issuance of Crawford v. Washington, 514 U.S. 36 (2004), by the United States Supreme Court on March 8, 2004, wide spread confusion and concern swept through the nation’s prosecutorial community. The new rule announced in Crawford created too many questions and provided few answers by the Court. In particular, anxiety arose from the child protection community in regard to one primary issue: Are forensic interviews of child victims and witnesses, and other statements made by children, considered “testimonial statements” according to Crawford, thus requiring the child to take the witness stand? The Court further confused the new rule …

Detention For The Purpose Of Interrogation As Modern "Torture", Rinat Kitai-Sangero

ExpressO

Although the Court in Miranda stated that custodial interrogation is designed to undermine the will of the interogee, it has not prohibited the admission of confession given under such circumstances. It rather assumed that it is possible to dispel the pressures of a custodial interrogation by means of proper safeguards. The article claims that there is no plausible way to dispel the coercive atmosphere engendered by a custodial interrogation. Custody today constitutes a refined version of torture used in the past in order to extract confessions. Consequently, the confession of a suspect under circumstances of custodial interrogation is involuntary and …

Summary Of State V. Rincon, 122 Nev. Adv. Op. 99, Michelle L'Hommedieu

Nevada Supreme Court Summaries

A motorist is driving below the speed limit is, by itself, insufficient to give rise to a reasonable suspicion of driving while intoxicated warranting an investigative stop. While reasonable suspicion is not a stringent standard, it requires more than a mere observation that a motorist is driving slowly. There must be additional indicia of erratic driving or unusual behavior before a reasonable suspicion arises justifying an investigative stop. Where no reasonable suspicion exists, an inquiry stop may nonetheless be justified under the community caretaking doctrine when a police officer has an objectively reasonable belief that a slow driver is in …

Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook

Scholarly Works

This Article will commence with a review of the rather significant evolution of Rule 11, including a review of several pertinent Supreme Court decisions that have helped shape its current structure. Thereafter, the predominant judicial methodology for conducting Rule 11 hearings will be discussed. Specifically, this Article will take a brief but critical look at, inter alia, the examination techniques employed by the judiciary when conducting Rule 11 hearings, and conclude that the process typically employed inadequately assesses whether a defendant's guilty plea was entered into knowingly and voluntarily. Next, this Article will discuss two very recent Supreme Court decisions--United …

Taking Judicial Notice Of Genocide? The Problematic Law And Policy Of The Karemera Decision, Ralph Mamiya

ExpressO

On June 16, 2006, the Appeals Chamber of the International Criminal Tribunal for Rwanda issued a decision in Prosecutor v. Karemera taking judicial notice of the fact that genocide occurred in Rwanda in 1994. This decision startled many court observers. While no internationally respected commentator would today question whether the Rwanda genocide took place, should such an event be judicially noticed without evidence? This paper examines that question, arguing that the ICTR Appeals Chamber’s expansive use of judicial notice in Karemera was both illogical and unwise. Genocide, whether as an historical fact or legal charge, fails to meet the “common …

Death Penalty Law, Therese M. Day

Mercer Law Review

This Article provides a survey of death penalty case law in Georgia from June 1, 2005 through May 31, 2006. The cases include those that the Georgia Supreme Court heard on interim appeal, direct appeal, and on review of habeas corpus decisions. Two recent decisions of the United States Supreme Court are also included because of their relevance to Georgia death penalty law. While there have been recent significant statutory changes affecting capital litigation in Georgia, those changes are beyond the purview of this Article and therefore will not be discussed. Likewise, holdings in capital cases that are common to …