Criminal Procedure Commons^™

Discovering Forensic Fraud, Jennifer D. Oliva, Valena E. Beety

Northwestern University Law Review

This Essay posits that certain structural dynamics, which dominate criminal proceedings, significantly contribute to the admissibility of faulty forensic science in criminal trials. The authors believe that these dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are “repeat players” in criminal litigation and, as such, routinely support reduced pretrial protections for defendants. Therefore, we argue that the significant discrepancies between the civil and criminal pretrial discovery and disclosure rules warrant additional scrutiny.

In the criminal system, the near absence of any pretrial discovery means …

The Use Of Information Technologies To Combat Counterfeit Alcohol Products And Ensure The Right To Life In Russia, Pavel Syosoevich Pastukhov, Svetlana Polyakova, Evelina Frolovich

Journal of Digital Forensics, Security and Law

The paper is aimed to analyze implementation of an integrated information system that provides forecasting, monitoring, prevention and elimination of possible threats, such as violation of information support of public authorities, businesses and municipal services and others as well as control of elimination of consequences of emergency situations and offenses with integration under its control action information and control duty subsystems, control, municipal services for their operational cooperation in the interests of of the municipality. In particular, it consideres how this unified system is applied in accounting of production volume and turnover of ethyl alcohol, alcoholic and alcohol-containing products (USAIS) …

Providing For The Safety Of The Participants Of The Criminal Court Proceedings – The Subject Of Cconcern Of Russian Legislator, Government, Scientists And Practicians, Galina Yakovlevna Borisevich

Journal of Digital Forensics, Security and Law

For many decades, the problems of the post-criminal impact onto the witnesses, complainants, other participants of the criminal procedures in Russian Federation has no solution. Criminal procedural Codes of 1922, 1923, 1960 did not mentioned them. Gradually, these problems have gained a widespread importance and interpretation. The fear of reprisal from the criminals, their close neighbourhood, the possibility to reprise led to the witnesses’ and the complainants’ refusal to testify or to changing the testimonies. All that negatively influenced substantiating the circumstances of the criminal cases. The absence of the safety measures in the legislation of the USSR and Russia …

The Nature Of The Crimes In The African Criminal Court, Charles C. Jalloh

Articles

This article examines the distinction between 'international' and 'transnational' crimes in contemporary international legal literature. It considers this traditional division through the lens of the African Union (AU) s Malabo Protocol, adopted in June 2014, which seeks to establish the first regional penal court with material jurisdiction over 14 crimes. The author argues that, while the international/transnational crimes distinction may be analytically convenient for scholars, the codification of both types of prohibitions into a regional treaty illustrates that some states are less concerned about adherence to crime categories and more interested in proscribing whatever conduct pose threats to their peace …

Not From A Wicked Heart: Testing The Assumptions Of The Provocation Doctrine, Carlton J. Patrick, Debra Lieberman

Nevada Law Journal

The normative logic of the provocation doctrine rests on the long-held, yet untested, assumption that anger can motivate people to act in ways which they believe are morally wrong. Here we provide a frontline inquiry into this premise in the context of the quintessential provocation scenario: a man witnessing or learning of his partner’s infidelity. Among men who had discovered a partner’s affair, anger was more strongly correlated with motivation to retaliate than with judgments as to whether such retaliation was morally acceptable. Moreover, anger explained increases in motivation beyond what could be accounted for by increases in moral judgments. …

Unshackling The Sixth Amendment: How Federalism Frees Our Constitutional Hostages Of The War On Drugs, Christopher Giddens

Nevada Law Journal

No abstract provided.

Juvenile False Confessions: Juvenile Psychology, Police Interrogation Tactics, And Prosecutorial Discretion, Marco Luna

Nevada Law Journal

No abstract provided.

Brady Violations And The Due Diligence Rule In Montana, Kathryn Brautigam

Montana Law Review

Brady Violations and the Due Diligence Rule in Montana

The Constitutional Right To Collateral Post-Conviction Review, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

For years, the prevailing academic and judicial wisdom has held that, between them, Congress and the Supreme Court have rendered post- conviction habeas review all but a dead letter. But in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court may have dramatically upended that understanding in holding—for the first time—that there are at least some cases in which the Constitution itself creates a right to collateral post-conviction review, i.e., cases in which a prisoner seeks to enforce retroactively a “new rule” of substantive constitutional law under the familiar doctrine of Teague v. Lane.

On the …

The Unintended Consequences Of California Proposition 47: Reducing Law Enforcement’S Ability To Solve Serious, Violent Crimes, Shelby Kail

Pepperdine Law Review

For many years, DNA databases have helped solve countless serious, violent crimes by connecting low-level offenders to unsolved crimes. Because the passage of Proposition 47 reduced several low-level crimes to misdemeanors, which do not qualify for DNA sample collection, Proposition 47 has severely limited law enforcement’s ability to solve serious, violent crimes through California’s DNA database and reliable DNA evidence. This powerful law enforcement tool must be preserved to prevent additional crimes from being committed, to exonerate the innocent, and to provide victims with closure through conviction of their assailants or offenders. Proposition 47’s unintended consequences have led to devastating …

Legal Dualism And Inconsistency Regarding Inmates’S Rights: A Review Toward Implementation Of Government Regulation Number 99 Of 2012, Feby Mutiara Nelson

Indonesia Law Review

In 1999, the Government of Indonesia established Government Regulation (GR) 32/1999 on the Procedures for the Implementation of the Rights of Inmates which has been most recently amended by GR 99/2012. However, the establishment of GR 99/2012 creates complication and unfairly discriminates against inmates committing extraordinary crimes (terrorism, drug abuse, corruption, crimes against the security of the state, crimes against humanity and other transnational organized crimes) impeding such inmates to file for remission and parole. This paper examines the consistency between the implementation of GR 99/2012 and the concept of criminal punishment in Indonesia. It is a summary of empirical …

Corporate Deferred Prosecution As Discretionary Injustice, Peter Reilly

Faculty Scholarship

A recent federal appellate court ruling of first impression permits the resolution of allegations of serious corporate criminal wrongdoing by way of an Alternative Dispute Resolution mechanism called Deferred Prosecution, without appropriate judicial review. This Article describes why this ruling is ill-advised, and suggests how other courts might address these same legal issues while arriving at different conclusions. This Article argues that if federal prosecutors are going to continue using Deferred Prosecution Agreements (“DPAs”) in addressing allegations of corporate criminal misconduct, then that discretionary power must be confined and checked through meaningful judicial review. The overriding concern with the appellate …

Restorative Justice: A Look At Victim Offender Mediation Programs, Katie L. Moran

21st Century Social Justice

This report conceptualizes the effectiveness and benefits of utilizing the restorative justice model of Victim Offender Mediation (VOM) within the criminal and juvenile justice systems to serve the rights of victims, offenders, and society more justly. Victim Offender Mediation is discussed as a possible alternative justice model which reframes the victim-offender relationship to foster and respect the dignity and worth of each participant. This restorative justice model combats victims’ feelings of helplessness by giving them back their voice, while having the potential to specifically offer relief to those secondarily victimized by the legal system in cases of simple rape. Offenders …

Context At The International Criminal Court, Hassan Ahmad

Pace International Law Review

In this article, I propose a contextual approach to ICC jurisdiction normatively to be adopted by the Court’s Office of the Prosecutor and Pre-Trial Chamber in investigating and eventually prosecuting crimes under the Rome Statute. Under this contextual approach, I contend that both the Prosecutor and Pre-Trial Chamber are able to consider evidence outside the traditional notions of territorial and temporal jurisdiction to conceptualize a conflict in its entirety. The totality of cross-border and inter-temporal evidence should be considered when deciding whether to investigate attacks that the Prosecutor has a reasonable basis to believe fall within the Court’s jurisdiction. Procedurally, …

We Need To Talk About Police Disciplinary Records, Kate Levine

Faculty Publications

In March 2017, an employee of New York’s Civilian Complaint Review Board leaked the disciplinary record of Daniel Pantaleo to the media. Pantaleo, the police officer who choked Eric Garner to death in the video that went public and horrified many citizens, is under federal investigation after a Staten Island grand jury refused to indict him for Garner’s death. Legal Aid Society attorneys had unsuccessfully sought the release of his records in the courts for years. The leak of his records is the public face of an important but rarely discussed issue facing police, legislators, judges, lawyers, and scholars who …

Let The Facts Speak For Themselves: The Empiricist Origins Of The Right To Remain Silent, Randa Helfield

Osgoode Hall Law Journal

Historians have traced the right to silence to early canon law, the political conflicts of the sixteenth and seventeenth centuries, and even The Prisoner’s Counsel Act, which effectively silenced the accused by allowing his lawyer to speak for him. This article argues that changes in philosophical notions of truth best explain how, given the importance of the accused’s testimony at the altercation trial, her silence could ever have been tolerated and ultimately enforced as a right. By the mid-eighteenth century, the rise of empiricism had shifted the trial’s reliance on testimony to a preference for facts, which seemed more immediately …

Local Democracy, Community Adjudication, And Criminal Justice, Laura I. Appleman

Northwestern University Law Review

Many of our criminal justice woes can be traced to the loss of the community’s decisionmaking ability in adjudicating crime and punishment. American normative theories of democracy and democratic deliberation have always included the participation of the community as part of our system of criminal justice. This type of democratic localism is essential for the proper functioning of the criminal system because the criminal justice principles embodying substantive constitutional norms can only be defined through community interactions at the local level. Accordingly, returning the community to its proper role in deciding punishment for wrongdoers would both improve criminal process and …

Extending Miranda: Prohibition On Police Lies Regarding The Incriminating Evidence, Rinat Kitai-Sangero

San Diego Law Review

This Article addresses the question of whether lying to suspects during interrogations regarding the incriminating evidence against them is a legitimate deceit. The search for truth goes hand-in-hand with the human yearning for knowledge. Generally, lying is perceived as reprehensible. Certain types of lies, such as those concerning medical treatment or the sale of a house, may even result in civil or criminal liability. Despite the condemnation of lying, lying to suspects during interrogations is a common phenomenon, and has even been dubbed an “art.” Part II of the article presents how police use deceit and lies during interrogations in …

Alternatives To Immigration Detention, Fatma E. Marouf

Cardozo Law Review

The United States places over 440,000 people each year in immigration detention, far more than any other country in the world. This Article argues that there are compelling humanitarian and financial reasons to utilize more alternatives to detention. It examines the strengths and limitations of existing alternatives, including the need to develop more community-based case management programs and to rely less on electronic monitoring. The Article then sets forth several legal arguments under the Constitution, Rehabilitation Act, and international human rights law for requiring greater consideration of alternatives to detention.

Bystander No More? Improving The Federal Response To Sexual Violence In Indian Country, Sarah Deer

Utah Law Review

For better or worse, the federal government has taken responsibility for providing for the protection of Native people. So long as the federal government refuses to allow tribes to govern themselves completely and independently, it is imperative that the federal government enact policies empowering Native survivors of sexual assault. The federal government must do more to protect tribal members from sexual predators, to safeguard reservations not only from career criminals but also to ensure that federal agencies like the Bureau of Indian Affairs and the Indian Health Services do not hire men with a history of violence against women or …