Criminal Procedure Commons^™

Memorializing Dissent: Justice Pal In Tokyo, Mark A. Drumbl

Scholarly Articles

Memorials and monuments are envisioned as positive ways to honor victims of atrocity. Such displays are taken as intrinsically benign, respectful, and in accord with the arc of justice. Is this correlation axiomatic, however? Art, after all, may be a vehicle for multiple normativities, contested experiences, and variable veracities. Hence, in order to really speak about the relationships between the aesthetic and international criminal law, one must consider the full range of initiatives—whether pop-up ventures, alleyway graffiti, impromptu ceremonies, street art, and grassroots public histories—prompted by international criminal trials. Courts may be able to stage their own outreach, to be …

Gamesmanship And Criminal Process, John D. King

Scholarly Articles

We first learn formal structures of rules, procedures, and norms of conduct through games and sports. These lessons illuminate and inform human behavior in other contexts, including the adversarial world of criminal litigation. As critiques of the legitimacy and fairness of the criminal justice system increase, the philosophy and jurisprudence of sport offer a comparative legal system to examine criminal litigation. Allegations of gamesmanship—the aggressive and strategic use of rules that violate some sense of decorum or culture yet remain within the formal rules of engagement—cut across both contexts. This Article examines what sports can teach us about gamesmanship in …

The Fourth Amendment Inventory As A Check On Digital Searches, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

Police and federal agents generally must obtain a warrant to search the tens of thousands of devices they seize each year. But once they have a warrant, courts afford these officers broad leeway to search the entire device, every file and folder, all metadata and deleted data, even if in search of only one incriminating file. Courts avow great reverence for the privacy of personal information under the Fourth Amendment but then claim there is no way to limit where an officer might find the target files, or know where the suspect may have hidden them.

These courts have a …

After Abolition: Acquiescence, Backlash, And The Consequences Of Ending The Death Penalty, Austin Sarat, Charlotte Blackman, Elinor Scout Boynton, Katherine Chen, Theodore Perez

Hastings Journal of Crime and Punishment

No abstract provided.

Prosecuting Members Of Defense Legal Teams And Its Ethical Implications For The Prosecutor: A Proposal For A New Ethical Standard, Belle Yan

Hastings Journal of Crime and Punishment

This Note explores improprieties and conflicts of interest that may arise when a prosecutor’s office investigates and files charges against defense counsel or a member of the defense legal team. Specifically, this Note focuses on such investigations and charges that arise from defense counsel’s representation of a defendant whom the same prosecutor’s office is prosecuting. The intimately adversarial and professional relationships between prosecutors and defense attorneys taint the legitimacy of any charges against defense counsel for alleged misconduct. The ethical standard proposed here suggests a non-waivable conflict of interest. This would assist the prosecutor’s office in avoiding the appearance of …

Are We Still Cheap On Crime? Austerity, Punitivism, And Common Sense In The Trump/Sessions/Barr Era, Hadar Aviram

Hastings Journal of Crime and Punishment

Literature on “late mass incarceration” observed a contraction of the carceral state, with varying opinions as to its causes and varying degrees of optimism about its potential. But even optimistic commentators were taken aback by the Trump-Sessions administration’s criminal justice rhetoric. This paper maps out the extent to which federal, state, and local actions in the age of Trump have reversed the promising trends to shrink the criminal justice apparatus, focusing on federal legislation, continued state and local reform, and the role of criminal justice in 2020 presidential campaigns. The paper concludes that the overall salutary trends from 2008 onward …

Life, Liberty, And Rental Property: Oakland’S Nuisance Eviction Program, Ethan Silverstein

Hastings Journal of Crime and Punishment

No abstract provided.

Preface To The Symposium Issue

Hastings Journal of Crime and Punishment

No abstract provided.

The First Ten Years Of The Lay Judge System: Now, Do We Have “Hope” For Criminal Trials In Japan?, Mari Hirayama

Hastings Journal of Crime and Punishment

No abstract provided.

Victim Participation In The Criminal Process In Japan, Shigenori Matsui

Hastings Journal of Crime and Punishment

No abstract provided.

What The Saiban-In System Brought From The Perspective Of A Defense Lawyer, Megumi Wada

Hastings Journal of Crime and Punishment

No abstract provided.

The Prosecution Review Commission Process – Historical Analysis And Some Suggestions For Change, Carl F. Goodman

Hastings Journal of Crime and Punishment

No abstract provided.

Lay Judge And Victim Participation In Japan: Japan’S Saiban’In Trial, The Prosecution Review Commission, And The Public Prosecution Of White-Collar Crimes, Hiroshi Fukurai

Hastings Journal of Crime and Punishment

In September 2019, the University of California Hastings Law School hosted a symposium on Japan’s newly instituted public and victim participation systems in the criminal process. This paper addresses themes raised by five scholars' presentations at the symposium, covering the effectiveness and impact of three different newly adopted systems of lay and victim participation in Japan: (1) the new 2009 law of the Prosecution Review Commission (PRC), a Japanese-style “civil grand jury” originally introduced in 1948, which gave the PRC the power to force the prosecution of formerly unindicted cases, thereby challenging and reversing the prosecutor’s original non-prosecution decision; (2) …

The Limits Of Lay Participation Reform In Japanese Criminal Justice, David T. Johnson, Dimitri Vanoverbeke

Hastings Journal of Crime and Punishment

No abstract provided.

Recalibrating Suspicion In An Era Of Hazy Legality, Deborah Ahrens

Seattle University Law Review

After a century of employing varying levels of prohibition enforced by criminal law, the United States has entered an era where individual states are rethinking marijuana policy, and the majority of states have in some way decided to make cannabis legally available. This symposium Article will offer a description of what has happened in the past few years, as well as ideas for how jurisdictions can use the changing legal status of cannabis to reshape criminal procedure more broadly. This Article will recommend that law enforcement no longer be permitted use the smell of marijuana as a reason to search …

The Sativas And Indicas Of Proof: Why The Smell Of Marijuana Should Not Establish Probable Cause For A Warrantless Vehicle Search In Illinois, 53 Uic J. Marshall L. Rev. 187 (2020), Cece White

UIC Law Review

No abstract provided.

No Longer A ‘Collateral Consequence’: Imprisonment And The Reframing Of Citizenship, Cormac Behan

Articles

This article examines the impact of imprisonment on citizenship. It identifies how civil, political and social rights are circumscribed with a sentence of imprisonment, and scrutinizes to what extent citizenship is limited for prisoners. Drawing on recent developments in England and Wales, it contends that citizenship has been eroded, not as a ‘collateral consequence’ of imprisonment, but rather as a determined penal policy. The boundaries of punishment have become blurred, moving from criminal justice institutions, and extending towards what is termed civil and political penality. Finally, it argues that, because citizenship in prison is inevitably framed around the differences between …

The New York Prosecutorial Conduct Commission And The Dawn Of A New Era Of Reform For Prosecutors, Clyde Rastetter

Cardozo Law Review de•novo

This Note discusses the history of the national dialogue regarding prosecutorial misconduct, analyzes recent state reforms, and proposes that New York's standing Brady orders and prosecutorial conduct commission provide the blueprint for ushering in a new era of prosecutorial accountability.

Judicial Elections, Public Opinion, And Their Impact On State Criminal Justice Policy, Travis N. Taylor

Theses and Dissertations--Political Science

This dissertation explores whether and how the re-election prospects faced by trial court judges in many American states influence criminal justice policy, specifically, state levels of incarceration, as well as the disparity in rates of incarceration for Whites and Blacks. Do states where trial court judges must worry about facing reelection tend to encourage judicial behavior that results in higher incarceration rates? And are levels of incarceration and racial disparities in the states influenced by the proportion of the state publics who want more punitive policies? These are clearly important questions because they speak directly to several normative and empirical …

Replacing Death With Life? The Rise Of Lwop In The Context Of Abolitionist Campaigns In The United States, Michelle Miao

Northwestern Journal of Law & Social Policy

On the basis of fifty-four elite interviews[1] with legislators, judges, attorneys, and civil society advocates as well as a state-by-state data survey, this Article examines the complex linkage between the two major penal trends in American society during the past decades: a declining use of capital punishment across the United States and a growing population of prisoners serving “life without the possibility of parole” or “LWOP” sentences. The main contribution of the research is threefold. First, the research proposes to redefine the boundary between life and death in relation to penal discourses regarding the death penalty and LWOP. LWOP …