Criminal Procedure Commons^™

Constitutionally Excluded Confessions: Applying America's Lessons To A Democratic Iraq, Joseph T. Thai

Oklahoma Law Review

No abstract provided.

Testimonial Or Nontestimonial? The Admissibility Of Forensic Evidence After Crawford V. Washington, John M. Spires

Kentucky Law Journal

No abstract provided.

Data Matching, Data Mining, And Due Process, Daniel J. Steinbock

Georgia Law Review

The Article concerns the governmental use of computerized data matching (comparison of records) and data mining (profiling),which increasingly are aimed at locating potential terrorists. The most striking aspect of virtually all anti-terrorist data matching and data mining decisions is the total absence of even the most rudimentary procedures for notice, hearing, or other opportunities for meaningful participation before, or even after, the deprivation is imposed. The Article evaluates under Fourth Amendment and due process standards a variety of law enforcement activities data matching or data mining might instigate. After reviewing these activities' potential effects on private, governmental, and accuracy interests, …

Judicial Regulation Of Excessive Punishments Through The Eighth Amendment, Youngjae Lee

Faculty Scholarship

This article considers judicial regulation of excessive punishments through the Eighth Amendment.

Constitutional Right Against Excessive Punishment, The, Youngjae Lee

Faculty Scholarship

When is a death sentence, a sentence of imprisonment, or a fine so "excessive" or "disproportionate" in relation to the crime for which it is imposed that it violates the Eighth Amendment? Despite the urgings of various commentators and the Supreme Court's own repeated, albeit uncertain, gestures in the direction of proportionality regulation by the judiciary, the Court's answer to this question within the past few decades is a body of law that is messy and complex, yet largely meaningless as a constraint. In the core of this ineffectual and incoherent proportionality jurisprudence lies a conceptual confusion over the meaning …

Solving The Williams Puzzle, Kyron J. Huigens

Articles

In the 1949 case of Williams v. New York, the United States Supreme Court approved of judicial factfinding as a feature of discretionary sentencing. The Court's more recent ban on judicial factfinding in determinate sentencing systems would seem to apply to discretionary sentencing systems as well, implying that Williams is no longer good law. If a sentencing judge may find facts in the exercise of discretionary sentencing as a matter of due process, then a legislature's attempt to introduce rule-of-law values into sentencing by creating a determinate sentencing regime hardly seems to call for constitutional limitations on judicial factfinding. And …

Taking Miranda's Pulse, William T. Pizzi, Morris B. Hoffman

Publications

No abstract provided.

Summary Of Bergna V. State, 120 Nev. Adv. Rep. 92, Kristen T. Gallagher

Nevada Supreme Court Summaries

No abstract provided.

Conceptualizing Blakely, Douglas A. Berman

The Ohio State University Moritz College of Law Working Paper Series

The Supreme Court’s decision in Blakely v. Washington has generated impassioned judicial and academic criticisms, perhaps because the “earthquake” ruling seems to announce a destructive rule in search of a sound principle. Read broadly, the jury trial rule articulated in Blakely might be thought to cast constitutional doubt on any and all judicial fact-finding at sentencing. Yet judicial fact-finding at sentencing has a long history, and such fact-finding has been an integral component of modern sentencing reforms and seems critical to the operation of guideline sentencing. The caustic reaction to Blakely reflects the fact that the decision has sowed confusion …

Legality Principle Of Crimes And Punishments In Iranian Legal System, Seyed Doraid Mousavi Mojab

ExpressO

The Principle of legality of crimes and punishments (nullum crimen, nulla poena sine lege) refers to the fact that an act is not considered a crime and deserves no punishment, unless the Legislator determines and announces the criminal title and its penalty before.

The legality principle protects individual security by ensuring basic individual libertties against the arbitrary and unwarranted intrusion of the state. Thus, the criminal judge can’t call the individuals’ acts crime and assign punishments for them or exert punishments that are not prescribed by the Legislator without any letter of law. If an act is morally rebutted or …

The Mandatory Death Penalty In The Commonwealth Caribbean And The Inter-American Human Rights System: An Evolution In The Development And Implementation Of International Human Rights Protections, Brian D. Tittemore

William & Mary Bill of Rights Journal

No abstract provided.

Death Penalty Law, Holly Geerdes, David Lawless

Mercer Law Review

This Article surveys the death penalty decisions of the Georgia Supreme Court from June 1, 2003, through May 31, 2004. The cases discussed include those heard by the supreme court on interim appeal, on direct appeal, and on review of habeas corpus decisions. Focusing on the court's decisions that affect the trial and appeal of death penalty cases, this Article, with some exceptions, does not discuss holdings in capital cases that are common to all criminal appeals. Four United States Supreme Court decisions are included in this survey because of their salience to Georgia death penalty law.

Hegel's Anti-Spinozism: The Transition To Subjective Logic And The End Of Classical Metaphysics, George Di Giovanni

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Summary Of Butler V. State, 120 Nev. Adv. Op. 93, Sally L. Galati

Nevada Supreme Court Summaries

Defendant appealed his conviction on two counts of first-degree murder with the use of a deadly weapon, for which he received a sentence of death.

Whistle Blowing, Ben Depoorter, Jef De Mot

George Mason University School of Law Working Papers Series

For law enforcement purposes corruption and fraud are hard battles. Because of the highly secretive and premeditated nature of these crimes, prime witnesses are themselves often implicated in the fraudulent transaction. Promises of immunity and whistle blowing rewards are often required to resolve these information asymmetries. These insights have set a trend, both in scholarship and law enforcement practice, towards reward-based approaches (carrots), as an alternative or complement to punishment based deterrence (sticks). Applying the U.S. False Claims Act (FCA) as an analytical framework, we provide a critical review of the efficiency limitations of whistle blowing. More specifically, the formal …

The Law And Economics Of Cybersecurity: An Introduction, Mark F. Grady, Francesco Parisi

George Mason University School of Law Working Papers Series

One of the most controversial theoretical issues of our time is the governance of cybersecurity. Computer security experts, national security experts, and policy analysts have all struggled to bring meaningful analysis to cybersecurity; however, the discipline of law & economics has yet to be fully applied to the issue. This introduction presents work by leading national scholars who examine this complex national security challenge from a law and economics perspective. The focus spans from a discussion of pure market solutions to public-private issue analysis, providing a valuable basis for policy considerations concerning the appropriate governmental role on the issue of …

Screening, Plea Bargains And The Innocent Problem, Oren Gazal

Law & Economics Working Papers Archive: 2003-2009

Courts in common law countries reject plea-agreements only when the agreed upon sentence is seen as exceedingly lenient. This judicial intervention is designed to ensure that plea-bargaining does not undermine deterrence. Many legal scholars argue against this policy, claiming that courts should prohibit plea-bargaining all together. They argue that the plea-bargaining system increases the risk of wrongful convictions. Economists often criticize this judicial intervention as well, but for a different reason. Rather than advocating the abolition of plea-bargaining, many economists argue that the courts should accept all plea-agreements without review. They claim that plea-bargaining can help ensure an efficient use …

The Forgotten Constitutional Right To Present A Defense And Its Impact On The Acceptance Of Responsibility-Entrapment Debate, Katrice L. Bridges

Michigan Law Review

This Note argues that Section 3El.1 of the Federal Sentencing Guidelines must be interpreted to allow defendants who claim entrapment at trial to remain eligible for the acceptance-of-responsibility adjustment. To interpret Section 3El.1 in any other way would run afoul of defendants' constitutional right to present a defense. Part I argues that the entrapment defense does not put factual guilt at issue; instead the entrapment defense challenges whether the statute should apply to the defendant's conduct. Part II contends that the legislative intent in creating the sentencing guidelines in general and the acceptance-of-responsibility adjustment in particular are furthered by requiring …

Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough

University of Richmond Law Review

No abstract provided.

Barking Up The Wrong Tree: The Misplaced Furor Over The Feeney Amendment As A Threat To Judicial Independence, David P. Mason

William & Mary Law Review

No abstract provided.

Summary Of Maiola V. State Of Nevada, 120 Nev. Adv. Op. 76, Clarke Walton

Nevada Supreme Court Summaries

Petition for rehearing in an appeal from a district court order denying a motion for return of property under NRS 179.085.

Section 5: Criminal Procedure, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Why Were Perry Mason's Clients Always Innocent? The Criminal Lawyer's Moral Dilemma - The Criminal Defendant Who Tells His Lawyer He Is Guilty, Randolph Braccialarghe

Faculty Scholarship

No abstract provided.

The Next Era Of Sentencing Reform, Steven L. Chanenson

Working Paper Series

This article charts a path for criminal sentencing in the wake of the Supreme Court’s recent bombshell decision in Blakely v. Washington. Blakely has thrust sentencing systems across the country into turmoil. But Justice O’Connor was fundamentally wrong when, in her Blakely dissent, she exclaimed that “Over 20 years of sentencing reform are all but lost.” All is most assuredly not lost. Blakely, properly viewed, is an opportunity – albeit a disruptive one – to re-think and improve our sentencing systems.

The Blakely court interpreted the Sixth Amendment to require that any fact, other than the fact of prior conviction, …

Drifting Down The Dnieper With Prince Potemkin: Some Skeptical Reflections About The Place Of Compliance Programs In Federal Criminal Sentencing (Symposium), Frank O. Bowman Iii

Faculty Publications

This Article explains how the federal organizational sentencing guidelines work and how they have created incentives for businesses to set up compliance programs. It then considers the paucity of evidence that compliance programs actually prevent the occurrence of corporate crime. It also questions whether investments in compliance programs make sense even for companies caught in a federal criminal investigation. There is little evidence that compliance programs have any significant effect on the likelihood that federal prosecutors will file criminal charges in the first instance. Even more surprisingly, examination of U.S. Sentencing Commission statistics reveals that the compliance program movement seems …

Function Over Formalism: A Provisional Theory Of The Constitutional Law Of Crime And Punishment, Frank O. Bowman Iii

Faculty Publications

This Article is, in effect, the second half of the author's argument against the Supreme Court's interpretation of the Sixth Amendment in Blakely v. Washington. The first half appeared in "Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington," 41 American Criminal Law Review 217 (2004), and made a pragmatic, consequentialist argument against the Blakely result. This Article takes the next step of providing an alternative constitutional model of criminal sentencing to that offered by Justice Scalia in Blakely. The model emphasizes that a good constitutional model should pay particular …

Escaping A Rigid Analysis: The Shift To A Fact-Based Approach For Crime Of Violence Inquiries Involving Escape Offenses, Timothy W. Castor

William & Mary Law Review

No abstract provided.

Duress Is Not A Justification, Kyron J. Huigens

Articles

No abstract provided.

Integrating Remorse And Apology Into Criminal Procedure, Stephanos Bibas, Richard A. Bierschbach

Articles

The article argues that the criminal justice system's current focus on punishment and procedural efficiency overlooks the transformative potential of remorse and apology in repairing moral and relational harm caused by crime. It advocates for a relational approach that integrates mechanisms like restorative justice and victim-offender mediation to foster healing, reconciliation, and reintegration of offenders into society.

The Criminal Defence Lawyer's Role, David Layton

Dalhousie Law Journal

Defence lawyers often fight to prevent the conviction of people who have committed serious crimes. How can this role be justified? In providing his answer the author generally accepts the traditional view of criminal lawyering according to which defence counsel "does good" by ensuring that the state does not obtain a conviction in the absence of proof beyond a reasonable doubt based on admissible and reliable evidence Ethical advocacy in the criminal context is thus heavily influenced by a conception of justice that includes not only the search for truth but also due process rights for accused persons. The author …