Criminal Procedure Commons^™

Bail Nullification, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

The Bright Line's Dark Side: Pre-Charge Attachment Of The Sixth Amendment Right To Counsel, Steven J. Mulroy

Washington Law Review

In this Article, Professor Mulroy discusses a current circuit split over whether the Sixth Amendment right to counsel can ever attach prior to a prosecutor filing a formal charge (i.e., an indictment or information). Relying on language in several Supreme Court opinions, some lower courts impose a bright-line rule stating that unless there has been such a formal charge (or unless the defendant has appeared before a judge), the right can never attach, in part because the Sixth Amendment’s text refers to a “criminal prosecution” and an “accused.” This rule can lead to harsh results—e.g., where a prosecutor takes advantage …

Preclusion And Criminal Judgment, Lee Kovarsky

Notre Dame Law Review

The defining question in modern habeas corpus law involves the finality

of a state conviction: What preclusive effect does (and should) a criminal

judgment have? Res judicata and collateral estoppel —the famous preclusion

rules for civil judgments—accommodate basic legal interests in fairness,

certitude, and sovereignty. Legal institutions carefully calibrate the preclusive

effect of civil judgments because judicial resources are scarce, because

the reliability and legitimacy of prior process can vary, and because courts

wield the authority of a repeat-playing sovereign that will find its own civil

judgments attacked in foreign litigation. In stark contrast to the legal sophistication

lavished on …

Beyond Law And Fact: Jury Evaluation Of Law Enforcement, Lauren M. Ouziel

Notre Dame Law Review

Criminal trials today are as much about the adequacy and legitimacy of the defendant’s accusers—police and prosecutors—as the alleged deeds of the accused. Yet we lack theory to conceptualize this reality, doctrine to set its parameters, and institutional mechanisms to adapt to it. The traditional framework used by courts and scholars to delineate the jury’s role—along the continuum between “fact-finding” and “law-finding”—is inadequate to the task. Jury evaluations of law enforcement are more accurately conceptualized as enforcement-finding, a process that functions both in and outside that continuum. In considering enforcement-finding’s justification and proper scope, history offers a useful analytical frame. …

I Tolled You I Had More Time!: The Future Of Tolling Looks Bright For Crime Victims, As The Georgia Court Of Appeals Establishes New Meaning Of O.C.G.A. § 9-3-99, Gretchen O. Connick

Mercer Law Review

Gone are the days of crime victims rushing to the courthouse steps to beat the statute of limitations' ticking clock. Now, crime victims have the ability to make time stand still in regard to their claims arising out of the crime committed against them. Tolling statutes extend the time for plaintiffs to sue by temporarily suspending the running of the statute of limitations. One such statute, section 9-3-99 of the Official Code of Georgia Annotated (O.C.G.A.), tolls the statute of limitations for claims brought by plaintiffs who were the victim of a crime giving rise to their action. The statute …

Bail Nullification, Jocelyn Simonson

Michigan Law Review

This Article explores the possibility of community nullification beyond the jury by analyzing the growing and unstudied phenomenon of community bail funds, which post bail for strangers based on broader beliefs regarding the overuse of pretrial detention. When a community bail fund posts bail, it can serve the function of nullifying a judge’s determination that a certain amount of the defendant’s personal or family money was necessary to ensure public safety and prevent flight. This growing practice—what this Article calls “bail nullification”—is powerful because it exposes publicly what many within the system already know to be true: that although bail …

Updating The Social Network: How Outdated And Unclear State Legislation Violates Sex Offenders’ First Amendment Rights, Elizabeth Tolon

Fordham Law Review

Readily available on computers, phones, tablets, or television, social media has become a necessary platform of expression for many. But, for others, social media is an inaccessible tool whose very use has criminal repercussions. To protect innocent children, many states have enacted legislation restricting sex offenders’ access to social media. Unfortunately, this legislation is often outdated, overly restrictive, and unconstitutional under the First Amendment. North Carolina has recently attracted national attention, as its statute highlights the potential constitutional issues states face in drafting such legislation. To avoid the constitutional concerns that North Carolina faces, state legislators must draft statutes narrowly …

Classified Information Cases On The Ground: Altering The Attorney-Client Relationship, Paul G. Gill

University of Richmond Law Review

No abstract provided.

Hard Bargaining In Plea Bargaining: When Do Prosecutors Cross The Line?, Cynthia Alkon

Faculty Scholarship

Well over 90 percent of all criminal cases in the United States are resolved by plea bargaining and not by trial. This means that how plea bargaining works impacts nearly every criminal defendant. However, there are few restrictions to protect defendants in the negotiating process. One serious problem is that prosecutors regularly use hard bargaining tactics such as exploding offers, threats to add enhancements, take-it-or-leave-it offers, and threats to seek the death penalty. These hard bargaining tactics contribute to the often highly coercive atmosphere of plea bargaining that can lead innocent defendants to plead guilty. Pressure to plead guilty can …

Juvenile Miranda Waivers: A Reasonable Alternative To The Totality Of The Circumstances Approach, Jean Pierce

BYU Law Review

No abstract provided.

The Nypd And The Mentally Ill, Randolph M. Mclaughlin, Debra S. Cohen

Elisabeth Haub School of Law Faculty Publications

Recently, a federal court judge cleared the way for a trial in the case of Mohamed Bah, a 28-year-old student killed in his home by NYPD officers after his mother, Hawa Bah, called 911 for assistance to take him to a hospital. Southern District Judge P. Kevin Castel's ruling denied New York City's motion seeking to dismiss claims of unlawful entry and excessive force against the police officers who responded to Mr. Bah's apartment, breached his door and then shot and killed him. Mr. Bah's family alleges that the final and fatal shot to Mr. Bah's head was inflicted at …

Unprecedented Infringement: Debunking The Constitutionality Of Dna Collection From Mere Arrestees In Light Of Maryland V. King, Christen Giannaros

Journal of Civil Rights and Economic Development

No abstract provided.

What Constitutes "Custody" Under Miranda?: An Examination Of Maine's Test As Applied In State V. Kittredge, Elizabeth L. Tull

Maine Law Review

In recent years, the Maine Supreme Judicial Court, sitting as the Law Court, has issued several opinions addressing whether a defendant’s statements are admissible when made to law enforcement in the absence of “Miranda warnings.” These cases have similar features: a defendant made a personally incriminating statement; raised an appeal arguing that Miranda warnings should have been, but were not, read to him or her; and the Court—in many cases—determined that the defendant was not technically in police custody, and thus there was no requirement to recite Miranda warnings to him or her. Miranda warnings are an important safeguard that …

State V. Lovejoy: Should Pre-Arrest, Pre-Miranda Silence Be Admissible During The State's Case-In-Chief As Substantive Evidence Of Guilt?, Mark A. Rucci

Maine Law Review

Article 1, section 6 of Maine Constitution reads in part that “[t]he accused shall not be compelled to give evidence against himself or herself, nor be deprived of life, liberty, property, or privileges . . . .” Further, the Law Court has held that “the State constitutional protection against self-incrimination is the equivalent of the Fifth Amendment." However, as with most provisions of the Constitution, the protection against self-incrimination is open to interpretation. While the Supreme Court has answered some questions surrounding the Fifth Amendment’s protections, it has left many decisions regarding its scope largely within the purview of the …

Knock And Talk No More, Jamesa J. Drake

Maine Law Review

The Supreme Court has set out a roadmap for challenging one of the most common and insidious police tactics used today: the knock-and-talk. The path is short and clear and it leads to the inescapable conclusion that the knock-and-talk—as it is actually employed in practice—is unconstitutional. Although the Court has yet to squarely consider the issue, some Justices have already taken pains to say, in dictum, that knock-and-talks are lawful. Practitioners should not be dissuaded. What this faction of the Court describes is a highly romanticized—and utterly inaccurate—conception of what a knock-and-talk actually entails. The sort of activity that these …

Riley And Abandonment: Expanding Fourth Amendment Protection Of Cell Phones, Abigail Hoverman

Northwestern University Law Review

In light of the privacy concerns inherent to personal technological devices, the Supreme Court handed down a unanimous decision in 2014 recognizing the need for categorical heightened protection of cell phones during searches incident to arrest in Riley v. California. This Note argues for expansion of heightened protections for cell phones in the context of abandoned evidence because the same privacy concerns apply. This argument matters because state and federal courts have not provided the needed protection to abandoned cell phones pre- or post-Riley.

Bitcoin Versus Regulated Payment Systems: What Gives?, Lawrence J. Trautman, Alvin C. Harrell

Cardozo Law Review

The article explores the evolution and challenges of virtual currencies like Bitcoin, highlighting their potential to transform traditional payment systems while posing significant regulatory and jurisdictional difficulties. It argues that while virtual currencies offer benefits such as reduced transaction costs and financial inclusion, their decentralized nature and association with illicit activities necessitate a balanced approach to regulation. The article emphasizes the importance of adapting legal frameworks to accommodate innovation while addressing risks, ensuring a stable environment for virtual currencies to coexist with traditional monetary systems.

What Lurks Below Beckles, Leah M. Litman, Shakeer Rahman

Northwestern University Law Review

This Essay argues that if the Supreme Court grants habeas relief in Beckles v. United States, then it should spell out certain details about where a Beckles claim comes from and who such a claim benefits. Those details are not essential to the main question raised in the case, but the federal habeas statute takes away the Supreme Court’s jurisdiction to hear just about any case that would raise those questions. For that reason, this Essay concludes that failing to address those questions now could arbitrarily condemn hundreds of prisoners to illegal sentences and lead to a situation where the …

The Fear Factor: Exploring The Impact Of The Vulnerability To Deportation On Immigrants' Lives, Shirley P. Leyro

Dissertations, Theses, and Capstone Projects

This qualitative study explores the impact that the fear of deportation has on the lives of noncitizen immigrants. More broadly, it explores the role that immigration enforcement, specifically deportation, plays in disrupting the process of integration, and the possible implications of this interruption for immigrants and their communities. The study aims to answer: (1) how vulnerability to deportation specifically impacts an immigrant’s life, and (2) how the vulnerability to deportation, and the fear associated with it, impacts an immigrant’s degree of integration. Data were gathered through a combination of six open-ended focus group interviews of 10 persons each, and 33 …

Ideology, Race, And The Death Penalty: "Lies, Damn Lies, And Statistics" In Advocacy Research, Anthony Walsh, Virginia Hatch

Journal of Ideology

We use the literature on race in death penalty to illustrate the hold that ideology has on researchers and journalists alike when a social issue is charged with emotional content. We note particularly how statistical evidence become misinterpreted in ways that support a particular ideology, either because of innumeracy or because—subconsciously or otherwise—one’s ideology precludes a critical analysis. We note that because white defendants are now proportionately more likely to receive the death penalty and to be executed than black defendants that the argument has shifted from a defendant-based to a victim-based one. We examine studies based on identical data …