Criminal Procedure Commons^™

Imprisoned Without A Verdict: The Constitutional Crisis Of Pre-Trial Solitary Confinement, Symone R. Gibbs

Washington and Lee Journal of Civil Rights and Social Justice

Kalief Browder’s name endures as a chilling reminder of the human cost of pre-trial solitary confinement. His story reveals the constitutional paradox and moral failure at the heart of this practice: Individuals who remain legally innocent are subjected to one of the harshest punishments the state can impose. This practice strips people of their liberty twice over, first through incarceration itself, and again through prolonged isolation that inflicts devastating psychological harm. Despite its severity, the use of solitary confinement against pre-trial detainees remains largely overlooked in legal scholarship and reform, even as it undermines the presumption of innocence, exacerbates systemic …

Incentivized Delegation In Corporate Criminal Investigations: State Action, Unconstitutional Conditions, And Fifth Amendment Erosion., Ying Zhou

American University Business Law Review

This Article identifies and critiques “incentivized delegation,” an enforcement regime in which the Department of Justice (DOJ) conditions prosecutorial leniency on corporations’ completion of specified, prosecution-oriented, internal investigations of employee misconduct. While courts readily find state action when the government formally delegates investigative functions, they have not squarely addressed whether corporate investigations undertaken to secure prosecutorial leniency—without explicit governmental direction—should likewise trigger state-action scrutiny. United States v. Coburn illustrates the blind spot: by insisting that state action requires overt governmental direction and control, the decision exposes a fundamental failure to appreciate how the government can embed investigative mandates within the …

Vice, Morality, And Immigration: Critiquing And Examining The Application Of Legal Moralism In The Criminalization Of Immigrants For Vice-Related Crimes, Sofia Garcia

Indiana Journal of Law and Social Equality

No abstract provided.

Dual Purposes Of A Plea Bargaining Simulation: Pedagogical Skills Training And Controlled Data Collection Experiment About Crime Victim’S Access To Justice Via Counsel, Tung Yin

Indiana Journal of Law and Social Equality

No abstract provided.

State V. Mclean., 337 A.3d 655 (R.I. 2025)., Kelsey Carter

Roger Williams University Law Review

No abstract provided.

State V. Roman, 335 A.3d 782 (R.I. 2025)., Kylie Rau

Roger Williams University Law Review

No abstract provided.

Interrogating The Facts Of The Case, Anna Roberts

Indiana Law Journal

Buried within many criminal judicial opinions is the origin of their “facts”—the interrogation room. Criminal law pedagogy should expose this origin. If we treat the alleged product of interrogation as “what happened,” as criminal cases (and professors) sometimes do, we obscure the ways in which interrogators are trained to incriminate and to co-create confessions. We also risk obscuring subsequent layers of reporting by police, prosecutors, or judges.

Recent scholarly literature urges criminal law professors to teach differently, warning that we distort, sanitize, and bolster the carceral state when we erase governmental agents and bypass procedure. Treating the “facts of the …

Misinformation And The Jury, Gustavo Ribeiro

Indiana Law Journal

This Article bridges critical gaps between the growing body of social science research on misinformation and the persistent challenges jurors face in evaluating potentially unreliable evidence in courtrooms. Misinformation—a pervasive issue undermining decision-making in democratic societies—mirrors the difficulties jurors encounter in distinguishing truth from falsehood amid compelling but unreliable evidence. The consequences of such challenges are dire: wrongful convictions, racial disparities, and the erosion of public trust in the legal system.

This Article is the first piece of legal scholarship to provide a comprehensive discussion of current research on the psychological mechanisms underlying susceptibility to misinformation—such as the illusory truth …

Looking Forward, Reflecting Back: The Promise Of Dispute Resolution To Reform The Criminal Legal System, Cynthia Alkon

Faculty Scholarship

The criminal legal system in the United States is plagued by serious and systemic problems. There have been countless efforts at reform over the last many decades that have included changes in what is a crime, how crimes are punished, how prosecutors do their job, and changes in policing. Yet, despite these efforts, problems such as mass incarceration remain deeply embedded. It is easy to be swept up in pessimism when discussing the criminal legal system. Change is hard, at best incremental, and we seem to be in the beginning of an era of backlash against recent reforms. This is …

The Eighth Amendment And Prison Staff-To-Sentenced Prisoner Sexual Violence, Matthew Lyskawa

Faculty Scholarship

In this Article, I provide the first comprehensive account of lower federal courts’ Eighth Amendment prison conditions jurisprudence regarding prison staff-to-sentenced prisoner sexual violence. I show that lower federal courts are systematically misunderstanding and misapplying Supreme Court case law in this context. The result is that sexually victimized prisoners must meet extremely burdensome doctrinal standards unique to sexual violence claims. Lower federal courts would faithfully follow Supreme Court precedent if they applied the excessive force standard to sexual assault claims and the conditions of confinement standard to sexual harassment claims. However, a faithful application of Supreme Court case law does …

Rebutting The Presumption: A Constitutional Theory Of Pre-Trial Asset Seizures And Procedural Due Process, Benjamin Y. Rabin

Journal of Criminal Law and Criminology

In this Comment, I trace the origins and examine the current state of the doctrine on pre-trial asset seizures, then argue for a new approach grounded in procedural due process and constitutional theory.

The existing frameworks for assessing due process in these cases fall into three categories. The first grants the government broad presumptive validity for pre-trial seizures. The second applies a utilitarian balancing test, following the Supreme Court’s reasoning in Mathews v. Eldridge and Connecticut v. Doehr. The third, illustrated by the recent decision in Culley v. Marshall, relies on comparisons to historical practice.

I argue that …

The Influence Of Adverse Childhood Experiences On Female Violent Offending: A Scoping Systematic Review, Alexis M. Wolgemuth

Theses, Dissertations and Capstones

Female-perpetrated violence has exhibited concerning data trends in recent years. Prior scholarship indicates that past victimization and trauma in childhood, known as adverse childhood experiences (ACEs), are highly prevalent among women offenders. However, the research concerning ACEs and violent females is scattered. This thesis provides a scoping literature review using the Preferred Reporting Items for Systematic Reviews and Meta-Analyses (PRISMA) updated 2020 guidelines. A systematic database search was conducted using Academic Search Complete, SAGE Journals, Springer Nature Link, and HeinOnline to identify relevant peer-reviewed journal articles. Inclusion and exclusion criteria are established, focusing on studies published after January 2015. These …

Justice For The Accomplice: Minnesota's 2023 Accomplice Liability Amendment And Its Shortcomings, John M. Thompson

Mitchell Hamline Law Review

No abstract provided.

Premium Injustice: Addressing The Harms That Cash Bail Premiums Inflict On The Non-Convicted, Jeffery L. Young

Mitchell Hamline Law Review

No abstract provided.

The Role Of Prosecutorial Discretion In Criminal Immigration Matters, Brian L. Owsley

William & Mary Journal of Race, Gender, and Social Justice

If the Trump administration’s goal is to remove between fifteen and twenty million undocumented individuals, then it would be far more effective to reduce the incentive of American companies and employers to hire undocumented individuals. Therefore, from a prosecutorial perspective, the federal government should consider whether seeking to charge and prosecute individuals is the most effective approach, or whether they should redirect their effort to the individual’s employer.

In addition to employers engaging in criminal immigration offenses, for several years now, the federal government has notably ignored the action of one person engaged in the smuggling of over 100,000 undocumented …

Social Safety And Social Security: Validating Context-Specific Instruments For Slums, Liss D. Romero, Katherine Palacio, Zacheous Ako Abang, Valeria Silgado, Humberto Llinas, Leidy González, Erika Frydenlund, Daniel Bolivar, Jose J. Padilla

VMASC Publications

Social safety and social security are concepts that help explain a community's well-being by assessing how it manages and mitigate existing, or perceived, risks. However, these terms are often conflated, which can limit understanding, particularly in areas with unstable living conditions. This study explores both concepts in the context of residents living in slums. As the number of displaced people grows, slums and informal settlements are becoming increasingly common worldwide, making it essential to clarify these concepts. Residents of slums face numerous hazards, including crime, violence, inadequate housing, overcrowding, and limited access to essential services. To measure social safety and …

Policy Recommendations To Reduce False Confessions By Juveniles In Wrongful Conviction Cases, Rohit R. Iyer

CMC Senior Theses

This research focuses on false confessions by juveniles in the United States justice system. False confessions are statements made by suspects during investigations in which individuals provide statements to investigators admitting to a crime in which they had no part. In these cases, individuals often spend years, if not the entirety, of their lives behind bars for crimes they did not commit. False confessions are the result of a number of systemic factors that will be discussed in this paper. While relatively rare, they are one of the largest blemishes in the U.S. justice system. Juveniles – individuals below the …

A Terrorist In Death Only: How The Death Penalty Fills The Gap In Federal Terrorism Law, Caroline Alden Mcbride

Law Student Publications

In the absence of a federal statute criminalizing domestic terrorism, the United States turned to an unlikely proxy: the death penalty. This Comment argues that capital punishment is used to define domestic terrorism, particularly when statutory tools cannot capture white supremacist attacks. Although former President Biden commuted most federal death sentences to life imprisonment without parole, three individuals whose attacks met the legal definition of domestic terrorism were excluded from clemency. Examining several cases from Timothy McVeigh to Luigi Mangione reveals a trend of defendants whose crimes meet the legal definition of domestic terrorism receiving the death penalty, even when …

Police Use Of Force: Barnes V. Felix And Moving Beyond The Moment Of Threat, Rebecca Aitchison

Roger Williams University Law Review

No abstract provided.

Martinez V. State, 328 A.3d 626 (R.I. 2025)., Carter Lee Hazzard

Roger Williams University Law Review

No abstract provided.

Race Conscious Programs After Students For Fair Admissions, Seonwoo Kim

Cardozo Journal of Equal Rights & Social Justice

The note argues that the federal government can legally mitigate geographical segregation and economic oppression by implementing race-conscious infrastructure and procurement policies. It contends that such efforts remain a compelling state interest under the strict scrutiny standards established in Students for Fair Admissions (SFFA), provided they are designed to remedy specific, identifiable past government discrimination.

Breaking Patterns Of Abuse: How Amending The Federal Rules Of Evidence Would Strengthen Domestic Violence Prosecutions, Isabelle Ryan

Roger Williams University Law Review

No abstract provided.

Trial By Character, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

In this Article, I argue that courts regularly deviate from Federal Rule of Evidence 404(b), which prohibits character evidence—evidence of a defendant’s past misdeeds offered to prove that the defendant acted in conformity with a certain character trait on the occasion in question. These deviations undermine the fairness of a trial and the presumption of innocence. The Article addresses this problem in three ways. First, it explains how courts have misinterpreted Rule 404(b)—an error that I call the permitted-purpose fallacy—and how they have fortified this misinterpretation with a body of flawed principles and precedent. Second, it reports the results of …

Let’S Modify Safety Valve To Value Family Ties, Laura Ginsberg Abelson

Faculty Journal Articles and Book Chapters

Federal sentencing law has long struggled to balance the breadth of drug conspiracy liability with the prin­ciple of proportional punishment. The statutory “safety valve” provision, codified at 18 U.S.C. § 3553(f) and mirrored in the U.S. Sentencing Guidelines, was designed to provide relief from mandatory minimum sentences for low- level, nonviolent offenders. Yet its requirement that defendants disclose all information concerning the offense sometimes places family-member codefendants in an untenable position: they may avoid harsh penalties only by incriminating loved ones. The requirement also conflicts with other provisions of the Guide­lines that provide guidelines reductions, but not relief from mandatory …

Negotiated Outcomes And Abbreviated Trials In Criminal Cases: Balancing Fairness And Efficiency In Three Legal Systems, Michele Caianiello, Jenia I. Turner, Thomas Weigend

Faculty Journal Articles and Book Chapters

Facing expanded criminal dockets, justice systems around the world are looking for ways to expedite proceedings and save resources while still offering credible procedures for adjudicating criminal cases. In the United States, defendants tend to face an all-or-nothing choice between two alternatives: a full trial at which all relevant evidence is presented and examined; or a plea bargain leading to a conviction without any presentation of evidence and the waiver of the defendant’s procedural rights in exchange for a reduced sentence. Even in routine misdemeanor cases, a full trial requires substantial expenditures of resources, and its procedural complexity may be …

Prisoners And Choice Democracy, Eileen Prescott, Michelle Theer

Journal of Race, Gender, and Ethnicity

This Article considers how eliminating meaningful choices inside prisons harms individuals and obstructs reintegration efforts. While any individual restrictions on incarcerated people may seem minor—such as limitations on the food available in the commissary— they accumulate to a point where people adopt passive, compliant behaviors and attitudes that are adaptive inside yet maladaptive outside the prison walls. Thus, we argue that even modest improvements in prisoner autonomy could reduce recidivism and achieve the public safety goals of incarceration.

From Victim To Defendant: Battered Woman Syndrome In Support Of Duress, Samantha Casimiro

Journal of Race, Gender, and Ethnicity

Section I of this article will discuss the origin and phases of BWS as well as its designation as a subcategory of Post-Traumatic Stress Disorder (hereinafter PTSD) and discuss the prevalence of domestic violence in our society. Section II will layout the elements of a duress defense and analyze the objective reasonableness standard as compared to the subjective reasonableness standard used in other defenses, such as self-defense, explaining that there is a level of subjectiveness that must be considered regardless of the applicable approach. Section III will analyze cases and opinions of the federal circuit courts that support the admission …

From Victim To Villain: How Gendered Narratives Shape Drug Courier Trials, Serafina C. Russo

Journal of Race, Gender, and Ethnicity

This article examines how gendered stereotypes, coercive trafficking dynamics, and permissive evidentiary practices create systemic bias in criminal prosecutions of women, particularly in drug trafficking cases. It highlights how courts often allow expert testimony and generalized narratives that blur neutral analysis with character judgment, inviting jurors to rely on cultural assumptions rather than objective facts. The “blind mule” phenomenon demonstrates the human cost, disproportionately affecting women from marginalized backgrounds, and reflects violations of due process and the presumption of innocence. The article argues for judicial and legislative reforms, including rigorous enforcement and clarification of Rule 704(b), to prevent stereotypes from …

Plea Bargaining And The Destruction Of Procedural Justice: A Theoretical And Empirical Critique Of Fairness In The U.S. Legal Sphere, Emma Scillitani

Honors Theses

This thesis examines the legal process of plea bargaining as it currently operates within the criminal justice system in the United States. Through both an empirical and theoretical evaluation of this procedure, it analyzes how plea bargaining exists in practice and whether it can be considered a fair mechanism of case resolution. This project investigates the practice on a molecular level through its presence at a county-level court jurisdiction, which represents broader structural implications of the national legal system. Furthermore, it identifies three central factors that drive the overutilization of plea bargaining: power asymmetry, information, asymmetry, and case processing time. …

Leaning Into Absence: Lessons From Kony, Mark A. Drumbl

Scholarly Articles

This article begins with the confirmation of charges decisions undertaken by the International Criminal Court in the Kony case. These proceedings struggled with the reality of in absentia. This article addresses the high absentee rate among individuals against whom the International Criminal Court (ICC) has issued arrest warrants and notes the stark presence of absence in the ICC’s work as well as within the enforcement of international criminal law at large. This article suggests that international criminal lawyers lean into the prevalence of absence and reboot predominant collective thinking. One path forward is to truly and warmly embrace transitional …