Criminal Procedure Commons^™

Judges Do It Better: Why Judges Can (And Should) Decide Life Or Death, Andrew R. Ford

Dickinson Law Review (2017-Present)

Following its decision in Furman v. Georgia, the Supreme Court of the United States has attempted to standardize procedures that states use to subject offenders to the ultimate penalty. In practice, this attempt at standardization has divided capital sentencing into two distinct parts: the death eligibility decision and the death selection decision. The eligibility decision addresses whether the sentencer may impose the death penalty, while the selection decision determines who among that limited subset of eligible offenders is sentenced to death. In Ring v. Arizona, the Court held for the first time that the Sixth Amendment right to …

Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis

Dickinson Law Review (2017-Present)

A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate. Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by …

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because the …

Comparisons Of The Soul: A Foucauldian Analysis Of Reasonable Doubt, Jeri Mallory

Scripps Senior Theses

The purpose of this paper is to uncover a new level of thinking regarding the discourse and debate around the standard of reasonable doubt and how it is used in our court rooms. The current argument surrounding the reasonable doubt standard has become circular and reached an impasse. By introducing the lens of social control and using the writings of notable French philosopher Michel Foucault, this paper looks at the origins and development of the reasonable doubt standard and links it with the increasing methods of social control present in punishment as well as evaluating the cultural narrative around its …

Warrantless Searches Of Electronic Devices At U.S. Borders: Securing The Nation Or Violating Digital Liberty?, Ahad Khilji

Catholic University Journal of Law and Technology

The steady increase of U.S. citizens traveling with smart phones and other electronic devices has been met with the rise of searches and seizures by CBP officers at U.S borders. Although only less than 0.1% of all travelers may actually be subjected to a search while entering the United States, when comparing the statistics between a six month period in 2016 with the same period in 2017, electronic device searches have almost doubled from 8,383 to 14,993. Approximately one million travelers to the U.S. are inspected by the CBP every day. Out of this population, nearly 2,500 electronic devices are …

Artificial Intelligence And Role-Reversible Judgment, Kiel Brennan-Marquez, Stephen E. Henderson

Faculty Articles

As intelligent machines begin more generally outperforming human experts, why should humans remain ‘in the loop’ of decision-making? One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors—sometimes disastrous errors—that elude machines. Though plausible today, this argument will wear thin as technology evolves. Here, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making. Specifically, we propose an account of democratic equality as ‘role-reversibility.’ In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact of decisions; there ought to …

Freedom And Prison: Putting Structuralism Back Into Structural Inequality, Anders Walker

All Faculty Scholarship

Critics of structural racism frequently miss structuralism as a field of historical inquiry. This essay reviews the rise of structuralism as a mode of historical analysis and applies it to the mass incarceration debate in the United States, arguing that it enriches the work of prevailing scholars in the field.

What Makes The Death Penalty Arbitrary? (And Does It Matter If It Is?), Chad Flanders

All Faculty Scholarship

A common objection to the death penalty is that it is arbitrarily imposed. Indeed, the Supreme Court in the 1970s held the death penalty as it was then administered to be unconstitutional precisely because the states seemed to have no clear standards for who got death and who did not. In the most famous passage in that opinion (Furman v. Georgia), Justice Stewart wrote that the death penalty was cruel and unusual in the same way that being struck by lightning was cruel and unusual.

It is thus surprising that the Court and those scholars who push this objection have …

Table Of Contents, Public Interest Law Reporter

Public Interest Law Reporter

No abstract provided.

Death With Dignity: A Right To Death?, Emily Knox

Public Interest Law Reporter

No abstract provided.

The Best We Can Be: How Toxic Masculinity Creates A Second Inescapable Situation For Inmates, Mariah Woodson

Public Interest Law Reporter

Toxic masculinity is a concept that has been in modern society for some time now. However, the recent release of the controversial Gillette razor commercial has sparked an uptick in discussions, from those who lauded the company for addressing the negative traits often associated with traditional masculinity to those who felt as though the company was unfairly targeting masculinity altogether. Regardless of where one falls on the debate, there is no denying the need for conversation. One point of discussion is what areas of our society embody these traits the most? An area that may be less intuitive are prisons …

The School To Prison Pipeline: Widespread Disparities In School Discipline Based On Race, Tara Carone

Public Interest Law Reporter

No abstract provided.

Students For Fair Admissions V. Harvard: Admissions Administrators Threaten The Future Of Affirmative Action In The United States, Seth Johnson

Public Interest Law Reporter

No abstract provided.

Prosecutorial Accountability: The Epidemic Of Prosecutorial Misconduct In America, Brei'a Womack

Public Interest Law Reporter

No abstract provided.

A Hidden Crisis: Housing Insecurity On College Campuses, Christina Mendoza

Public Interest Law Reporter

No abstract provided.

Flawed Forensics: Cautionary Tales From Our Criminal Justice Past, Marisa Tisbo

Public Interest Law Reporter

No abstract provided.

Battle Of The Branches, Melissa Dupor

Public Interest Law Reporter

No abstract provided.

Juveniles, Mass Incarceration, And Why "Raising The Age" Is Not Enough, Kenya Barbara

Public Interest Law Reporter

No abstract provided.

How Will The Legalization Of Marijuana Affect The Incarcerated In Illinois?, Kevin Anderson

Public Interest Law Reporter

No abstract provided.

Table Of Contents, Public Interest Law Reporter

Public Interest Law Reporter

No abstract provided.