Criminal Procedure Commons^™

Quisano V. State, 132 Nev. Adv. Op. 9 (February 18, 2016), Michael Hua

Nevada Supreme Court Summaries

This court affirmed an appeal from a judgment of conviction, pursuant to an Alford plea, of voluntary manslaughter and child abuse, neglect, or endangerment with substantial bodily harm holding:

(1) Brady violations do not occur when the evidence in question is not favorable to the defendant;

(2) Prosecutors have a strict duty to disclose under their own open-file policy until sentencing proceedings; and,

(3) Media outlets require a written by the district court to electronically cover proceedings unless nonconstitutional or harmless error results in such coverage.

Padilla V. Kentucky: Sound And Fury, Or Transformative Impact, Steven Zeidman

Fordham Urban Law Journal

No abstract provided.

Realizing Padilla’S Promise: Ensuring Noncitizen Defendants Are Advised Of The Immigration Consequences Of A Criminal Conviction, Yolanda Vàzquez

Fordham Urban Law Journal

No abstract provided.

A Gauntlet Thrown: The Transformative Potential Of Padilla V. Kentucky, Malia Brink

Fordham Urban Law Journal

No abstract provided.

Charging On The Margin, Paul T. Crane

William & Mary Law Review

The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions. In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses — penalties such as requirements to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation. Although there is a wealth of scholarship studying the effect this development has on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives. This Article starts to remedy that gap by exploring the influence that collateral consequences exert …

The Never Ending Tale: Racism And Inequality In The Era Of Broken Windows, Jonathan Oberman, Kendea Johnson

Cardozo Law Review

No abstract provided.

The Degradation Of Civil Society And Hyper-Aggressive Policing In Communities Of Color In New York City, Donna Lieberman, Kara Dansky

Cardozo Law Review

No abstract provided.

Protecting Juveniles In Adult Facilities From Sexual Abuse: Best Practices For Implementing The Youthful Inmate Standard, Brenda V. Smith

Research Reports & White Papers

Housing youth who are prosecuted and convicted as adults in adult facilities is challenging and creates significant dilemmas for correctional agencies. In particular, should such “youthful inmates” be treated as part of the regular adult population or should these youth be housed in facilities still under the purview of the adult corrections agency but in facilities designated for youth? More narrowly, should youthful inmates who remain in an adult facility be held in separate housing blocks? Or, should youthful inmates in adult correctional facilities be housed in protective custody or solitary confinement for their protection? How should agencies provide required …

How Bad Arrests Lead To Bad Prosecution: Exploring The Impact Of Prior Arrests On Plea Bargaining, Besiki Luka Kutateladze, Victoria Z. Lawson

Cardozo Law Review

Arrests and arrest records play an important role in the criminal justice system. Police agencies customarily use suspects' prior record for investigative purposes, and courts use this information to set bail. Yet many arrest practices, and particularly stop-and-frisk, have long been criticized for disproportionately targeting young black and Latino men, and for their overall negative effect on communities of color. Not surprisingly then, arrest practices have received much attention, including among legal scholars and social scientists. However, what effect a prior arrest record has on other decision points, including prosecutorial decision making, is relatively unknown. In particular, we have a …

Duty Of Candor In The Digital Age: The Need For Heightened Judicial Supervision Of Stingray Searches, Andrew Hemmer

Chicago-Kent Law Review

This Note explores the constitutional implications of the use of a device known as the “Stingray” in criminal investigations. This device masquerades as a cell phone tower and forces all cell phones within a considerable range to connect to it, transmitting data and allowing law enforcement to ascertain the location of each cell phone. The use of Stingrays raises important Fourth Amendment concerns that have been brought to light most significantly by the 2008 federal prosecution of Daniel Rigmaiden. This Note argues that Stingray use constitutes a Fourth Amendment search and that a new standard of warrant requirements is needed …

Riley V. California And The Stickiness Principle, Steven I. Friedland

Duke Law & Technology Review

In Fourth Amendment decisions, different concepts, facts and assumptions about reality are often tethered together by vocabulary and fact, creating a ‘Stickiness Principle.’ In particular, form and function historically were considered indistinguishable, not as separate factors. For example, “containers” carried things, “watches” told time, and “phones” were used to make voice calls. Advancing technology, though, began to fracture this identity and the broader Stickiness Principle. In June 2014, Riley v. California and its companion case, United States v. Wurie, offered the Supreme Court an opportunity to begin untethering form and function and dismantling the Stickiness Principle. Riley presented the question …

Florida's Stand Your Ground Regime: Legislative Direction, Prosecutorial Discretion, Public Pressures, And The Legitimization Of The Criminal Justice System, Mary Elizabeth Castillo

Journal of Legislation

This note seeks to examine the tripartite relationship between legislative delegation, prosecutorial discretion, and public pressures in the context of Florida's "Stand Your Ground" regime. In the context of high profile criminal cases, a prosecutor faces significant public and political pressures that may influence her exercise of discretion in that case. Ultimately, Castillo argues that when a prosecutor succumbs to these pressures, it undermines her expertise, experience and exercise of discretion, and undercuts the legitimacy of the criminal justice system as a whole.

Earwitness Evidence: The Reliability Of Voice Identifications, Christopher Sherrin

Osgoode Hall Law Journal

While much attention has been paid to the frailties of eyewitness evidence, little attention has been given to the reliability of voice identification evidence, even though such “earwitness” evidence has been tendered in several wrongful conviction cases. The author reviews the empirical literature on the reliability of earwitness evidence and compares it to the principal factors used by Canadian criminal courts to assess earwitness testimony. The author concludes that earwitness evidence often can be quite unreliable and that the courts have not always properly assessed its reliability, offering some suggestions for reform.

Is The American Criminal Jury System In Criminal Trials Worthy Of Export To Iraq?, Mohammed J. Ailan

Law Student Scholarship

The American criminal jury system has a long, ancient history. It went through several stages throughout history until it became a sophisticated institution for educating the American people about the law in their country. Jury duty is one of the privileges of U.S. citizenship. This thesis shows how the criminal justice system currently works in the United States. This paper discusses issues such as the hung jury, the capital jury, checking abuses of power, and jury nullification. This thesis focuses on other countries that have recently adopted the criminal jury system, such as Spain and Russia, after they adopted democracy. …

Muscle Memory And The Local Concentration Of Capital Punishment, Lee B. Kovarsky

Faculty Scholarship

No abstract provided.

Extracurricular International Criminal Law, Mark A. Drumbl

Scholarly Articles

This article unpacks the jurisprudential footprints of international criminal courts and tribunals in domestic civil litigation in the United States conducted under the Alien Tort Statute (ats). The ats allows victims of human rights abuses to file tort-based lawsuits for violations of the laws of nations. While diverse, citations to international cases and materials in ats adjudication cluster around three areas: (1) aiding and abetting as a mode of liability; (2) substantive legal elements of genocide and crimes against humanity; and (3) the availability of corporate liability. The limited capacity of international criminal courts and tribunals portends that domestic tort …

Indefinite Detention, Deadly Conditions: How Brazil's Notorious Criminal Justice System Violates The International Covenant On Civil And Political Rights, Layla Medina

American University International Law Review

No abstract provided.

The Antidemocratic Sixth Amendment, Janet Moore

Faculty Articles and Other Publications

Criminal procedure experts often claim that poor people have no Sixth Amendment right to choose their criminal defense lawyers. These experts insist that the Supreme Court has reserved the Sixth Amendment right to choose for the small minority of defendants who can afford to hire counsel. This Article upends that conventional wisdom with new doctrinal, theoretical, and practical arguments supporting a Sixth Amendment right to choose for all defendants, including the overwhelming majority who are indigent. The Article’s fresh case analysis shows the Supreme Court’s “no-choice” statements are dicta, which the Court’s own reasoning and rulings refute. The Article’s new …

Victims Who Victimise, Mark A. Drumbl

Scholarly Articles

How to speak of the agency of the oppressed to harm others in times of atrocity? This article juxtaposes Holocaust literature (Levi, Frankl, Kertesz, Ka-Tzetnik) with Holocaust judging (the Kapo collaborator trials in Israel). It does so didactically to interrogate international criminal law’s interaction with former child soldier Dominic Ongwen, currently awaiting trial at the International Criminal Court.

Recent Development: Counts V. State: Absent The Defendant's Consent, The State May Not Amend The Charging Document If The Amendment Changes The Character Of The Offense, Kristin E. Shields

University of Baltimore Law Forum

The Court of Appeals of Maryland held that amending a charge from theft of property “with a value of less than $1,000” to theft of property “with a value of at least $1,000 but less than $10,000” without the defendant’s consent changed the character of the offense. Counts v. State, 444 Md. 52, 55, 118 A.3d 894, 895 (2015). Therefore, the court held that such action was prejudicial per se because it interfered with the defendant’s right to defend himself by not giving notice of the exact charges against him, thereby violating Maryland Rule 4-204.