Criminal Procedure Commons^™

The Nuremberg Trials: A Reappraisal And Their Legacy: An Introduction, Sheri P. Rosenberg

Cardozo Law Review

No abstract provided.

From Nuremberg To Tokyo: Some Reflections On The Tokyo Trial (On The Sixtieth Anniversary Of The Nuremberg Trials), Zhang Wanhong

Cardozo Law Review

No abstract provided.

Prospects For Citizen Participation In Criminal Trials In Japan, Colin P.A. Jones

Washington International Law Journal

A review of The Lay Judge System, by Takashi Maruta (2004).

Bringing Human Rights Abusers To Justice In U.S. Courts: Carrying Forward The Legacy Of The Nuremberg Trials, Sandra Coliver

Cardozo Law Review

No abstract provided.

American Indians, Crime, And The Law, Kevin K. Washburn

Michigan Law Review

This Article evaluates the federal Indian country criminal justice regime, not against norms of Indian law and policy, but against those of criminal law and policy. Specifically, this Article evaluates the federal constitutional norms that lie at the heart of American criminal justice and that are designed to ensure the legitimacy of federal criminal trials. Toward that end, Part I presents a critical description of key facets of the federal Indian country criminal justice system. Part II begins the critical evaluation by evaluating a key institutional player in the federal system, the federal prosecutor. It highlights the handicaps faced by …

Declining To State A Name In Consideration Of The Fifth Amendment's Self-Incrimination Clause And Law Enforcement Databases After Hiibel, Joseph R. Ashby

Michigan Law Review

In response to a report of an argument on a public sidewalk, a police officer approaches two people standing in the vicinity of the reported dispute. The officer requests that each person provide her name so the officer can run the names through databases to which the police department subscribes. After searching each name through various databases, the officer might discover that one of the individuals made several purchases of cold medicine containing pseudoephedrine and that the other just received a license from the State to procure certain hazardous chemicals. These two people might be in the early stages of …

Transitional Justice: Postwar Legacies, Ruti Teitel

Cardozo Law Review

No abstract provided.

Essay: The Romance Of Nuremberg And The Tease Of Moral Justice, Thane Rosenbaum

Cardozo Law Review

No abstract provided.

Justice Story Cuts The Gordian Knot Of Hung Jury Instructions, George C. Thomas Iii, Mark Greenbaum

Rutgers Law School (Newark) Faculty Papers

Constitutional law grows more complex over time. The complexity is due, in large part, to the rule of stare decisis. When faced with precedents that it does not wish to follow, the Court usually distinguishes the case before it. Thus, the constitutional landscape is littered with cases that do not fit well together. Navigating past these shoals is often difficult for courts following the Supreme Court’s lead. One example is the law governing instructions that a trial judge can give a deadlocked jury in a criminal case. The right to a jury trial entails the right to have the jury …

Summary Of Moore V. State, 122 Nev. Adv. Op. 4, Stephanie Hamrick

Nevada Supreme Court Summaries

Appellant Moore was convicted of fraudulent use of a credit card based on an incident that took place in a Las Vegas Wal-Mart. His suspicious behavior2 while shopping attracted the attention of a loss prevention specialist. The loss prevention specialist suspected Moore might attempt to purchase goods with a credit card, and instructed a cashier to contact management if Moore presented a credit card without proper identification. Moore brought over $300 worth of goods to the cashier’s register and presented a credit card. When Moore could not produce identification, the cashier summoned a manager who took the credit card to …

Is Capital Punishment Immoral Even If It Does Deter Murder?, Thomas Kleven

ExpressO

After years of inconclusive debate, recent studies purport to demonstrate that capital punishment does indeed deter murder, perhaps to the tune of multiple saved lives for each person executed. In response to these studies, Professors Sunstein and Vermeule have argued that since capital punishment leads to a net savings of innocent lives, it may be morally required on consequentialist grounds. I argue, even assuming the validity of the studies, that capital punishment cannot be justified in the United States in the current historical context for reasons of justice that trump consequentialist considerations. Mine is not an argument that capital punishment …

Coming Soon To A Court Near You – Convicting The Unrepresented At The Bail Stage: An Autopsy Of A State High Court’S Sua Sponte Rejection Of Indigent Defendants’ Right To Counsel, Douglas L. Colbert

Faculty Scholarship

Recently, the Maryland Court of Appeals became the first state court of last resort to reject Gideon v. Wainwright’s guarantee of counsel at the bail stage. In ruling sua sponte that bail is not a critical stage entitling indigent defendants to invoke their constitutional right to counsel, the Fenner Court held that statements offered by an unrepresented and non-Mirandized indigent defendant were admissible at trial. I contend that the Fenner ruling may transform the pretrial fact-gathering process by providing prosecutors with an additional source of evidence against indigent defendants, namely statements made at a judicial proceeding for the purpose …

The Price Of Pretrial Release: Can We Afford To Keep Our Fourth Amendment Rights?, Melanie D. Wilson

Scholarly Articles

The Fourth Amendment serves an important constitutional function. It protects the privacy of Americans from intrusions on their personal security. Few rights are held more sacred. When a person is arrested and faces the real likelihood of pretrial detention in jail, the person risks not only a reduction in his privacy rights, but also a loss of his liberty. In such circumstances, the arrested person should be able to bargain away some of his Fourth Amendment rights in exchange for the additional freedoms associated with release to home.

Undoubtedly, defendants forced to choose between incarceration and Fourth Amendment rights will …

Reformulating The Miranda Warnings In Light Of Contemporary Law And Understandings, Mark A. Godsey

Faculty Articles and Other Publications

Since Miranda v. Arizona was decided in 1966, much scholarly attention has been devoted to both the theoretical underpinnings and the real world impact of that decision. Little attention, however, has been paid to the substance or content of the warnings. The Supreme Court has often stated that the Miranda warnings requirement is a prophylactic rule that can change and evolve. However, in spite of 40 years of legal developments and practical experience, the content of these famous four warnings has never been modified or even been subjected to systematic scrutiny.

This Article proposes that the substance of the Miranda …

In Booker'S Shadow: Restitution Forces A Second Debate On Honesty In Sentencing, Melanie D. Wilson

Scholarly Articles

The Supreme Court's January 2005 decision in Booker should induce Congress to enact legislation to remedy the constitutional invalidity of the MVRA and encourage the Department of Justice to revisit how restitution is charged, indicted, negotiated in plea agreements, proven at trial, and presented at sentencing hearings. The Booker decision is also a reminder to lower federal courts to adhere to the rule announced by the Supreme Court in Hughey v. United States, which limits the reach of orders of restitution. Congress, DOJ, and the federal courts should insist on candor in charging and sentencing to remedy the restitution …

Creole And Unusual Punishment - A Tenth Anniversary Examination Of Louisiana's Capital Rape Statute, James H. S. Levine

Villanova Law Review (1956 - )

No abstract provided.

Could Jesus Serve On A Jury - Not In The Third Circuit: Religion-Based Peremptory Challenges In United States V. Dejesus And Bronshtein V. Horn, Anthony D. Foti

Villanova Law Review (1956 - )

No abstract provided.

The Reasonable Policeman: Police Intent In Criminal Procedure, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

Banishing Acts: How Far May States Go To Keep Convicted Sex Offenders Away From Children?, Bret R. Hobson

Georgia Law Review

Few legislative goals are more commendable than states' attempts to prevent child sexual abuse. Given the difficult nature of this problem, some judicial deference to legislative efforts is appropriate. Politicians, however, should not receive carte blanche to enact reactionary, overinclusive statutes of questionable efficacy. When laws such as residency restrictions target all convicted sex offenders who have already paid their debt to society, courts should closely examine whether such laws violate substantive due process and the Ex Post Facto Clause. Despite the difficulty in articulating a discrete fundamental right that is infringed by residency restrictions,these laws restrain the liberty of …

Blue Mourning: Postpartum Psychosis And The Criminal Insanity Defense, Waking To The Reality Of Women Who Kill Their Children, 39 J. Marshall L. Rev. 515 (2006), Jessica Butterfield

UIC Law Review

No abstract provided.

Manson V. Brathwaite: The Supreme Court's Misunderstanding Of Eyewitness Identification, 39 J. Marshall L. Rev. 539 (2006), Ruth Yacona

UIC Law Review

No abstract provided.

Adjudicated On The Merits?: Why The Aedpa Requires State Courts To Exhibit Their Reasoning, 39 J. Marshall L. Rev. 995 (2006), Ezra Spilke

UIC Law Review

No abstract provided.

Dostoyevsky And The Therapeutic Jurisprudence Confession, 40 J. Marshall L. Rev. 41 (2006), Amy D. Ronner

UIC Law Review

No abstract provided.

Second Chance For Justice: Reevaluation Of The United States Double Jeopardy Standard, 40 J. Marshall L. Rev. 371 (2006), Andrea Koklys

UIC Law Review

No abstract provided.

Inconsistent Methods For The Adjudication Of Alleged Mentally Retarded Individuals: A Comparison Of Ohio's And Georgia's Post-Atkins Frameworks For Determining Mental Retardation, Scott R. Poe

Cleveland State Law Review

This Note compares Ohio's and Georgia's post-Atkins frameworks for determining mental retardation. Ohio's framework offers a fairer application of Atkins and should serve as a guide for a national legal standard for use by state trial courts to determine mental retardation. Specifically, Ohio's use of preponderance of the evidence is a more appropriate standard of proof for determining mental retardation because it better reaches the overall goal in Atkins. Allowing the judge to make the mental retardation determination protects the alleged mentally retarded defendant from potential jury bias. Because Ohio's and Georgia's definitions of mental retardation are substantially similar and …

Aedpa Statute Of Limitations: Is It Tolled When The United States Supreme Court Is Asked To Review A Judgment From A State Post-Conviction Proceeding, Diane E. Courselle

Cleveland State Law Review

This thirty-seven word provision [the tolling provision in the Antiterrorism and Effective Death Penalty Act] has been construed by the United States Supreme Court three times since 1996, and yet several questions remain unanswered. One such unanswered question is whether tolling occurs when a petitioner files a petition for writ of certiorari to the United State Supreme Court from the state court postconviction decision. In other words, does seeking the United States Supreme Court's review from a state court's final decision on an "application for State post-conviction or other collateral review" keep the state post-conviction application "pending?" That is the …

Booker And Our Brave New World: The Tension Among The Federal Sentencing Guidelines, Judicial Discretion, And A Defendant's Constitutional Right To Trial By Jury, Kristina Walter

Cleveland State Law Review

This Note examines the inherent conflict among the Federal Sentencing Guidelines, judicial discretion, and a defendant's Sixth Amendment right to a trial by jury. Part two of this Note will provide a historical overview of the Guidelines. Part three will discuss the application of the Guidelines and the role of juries and judges at sentencing hearings. Part four will highlight criticisms relating to how the Guidelines often usurp power from juries and judges. Part five will examine the milestone cases of Blakely v. Washington, United States v. Booker, and United States v. Fanfan (hereinafter "Booker" refers to the combined cases …

Davis/Hammon, Domestic Violence, And The Supreme Court: The Case For Cautious Optimism, Joan S. Meier

Michigan Law Review First Impressions

The Supreme Court’s consolidated decision in Davis v. Washington and Hammon v. Indiana offers something for everyone: by “splitting the difference” between the two cases—affirming one and reversing the other—the opinion provides much grist for advocates’ mills on both sides of this issue. While advocates for defendants’ rights are celebrating the opinion’s continued revitalization of the right to confrontation, which began in Crawford v. Washington, advocates for victims have cause for celebration as well: the decision is notable for its reflection of the Court’s growing—albeit incomplete— awareness and understanding of the dynamics of domestic violence and their implications for justice. …

Stevens's Ratchet: When The Court Should Decide Not To Decide, Joel A. Flaxman

Michigan Law Review First Impressions

Hidden underneath the racy death penalty issues in Kansas v. Marsh lurks a seemingly dull procedural issue addressed only in separate opinions by Justices Stevens and Scalia: whether the Court should have heard the case in the first place. As he did in three cases from the Court’s 2005 term, Justice Stevens argued in Marsh that the Court has no legitimate interest in reviewing state court decisions that overprotect federal constitutional rights. Instead, the Supreme Court should exercise its certiorari power to tip the scales against states and in favor of individuals. Granting certiorari in Marsh, Stevens argued, was not …

The High Court Remains As Divided As Ever Over The Death Penalty, George H. Kendall

Michigan Law Review First Impressions

More than three decades ago, in Furman v. Georgia, a sharply divided Supreme Court struck down all existing capital punishment schemes be-cause the results they generated were arbitrary, discriminatory, and unreasoned. No member of that Court remains on the Court today, and the Court has grown increasingly conservative ever since. Nevertheless, impor-tant questions concerning the administration of capital punishment continue to wrought deep divisions within the Court, for instance in determining whether racial bias influences the system, in determining the sufficiency of new evidence of innocence to justify review of a defaulted claim in habeas corpus proceedings, in determining a …