Criminal Procedure Commons^™

Ready, Fire, Aim: How Universities Are Failing The Constitution In Sexual Assault Cases, Tamara Rice Lave

Articles

This Article looks critically at the procedural protections American universities give students accused of sexual assault. It begins by situating these policies historically, providing background to Title IX and the different guidelines promulgated by the Department of Education. Next, it presents original research on the procedural protections provided by the fifty flagship state universities. In October 2014, university administrators were contacted and asked a series of questions about the rights afforded to students, including the standard of proof right to an adjudicatory hearing, right to confront and cross examine witnesses, right to counsel, right to silence, and right to appeal. …

Search Incident To Probable Cause?: The Intersection Of Rawlings And Knowles, Marissa Perry

Michigan Law Review

The search incident to arrest exception authorizes an officer to search an arrestee’s person and his or her area of immediate control. This exception is based on two historical justifications: officer safety and evidence preservation. While much of search incident to arrest doctrine is settled, tension exists between two Supreme Court cases, Rawlings v. Kentucky and Knowles v. Iowa, and a crucial question remains unanswered: Must an officer decide to make an arrest prior to commencing a search? In Rawlings, the Supreme Court stated that a search may precede a formal arrest if the arrest follows quickly thereafter. In Knowles, …

The Death Penalty And The Fifth Amendment, Joseph Blocher

Faculty Scholarship

Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?

Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant …

How Bayesian Are Judges?, Jack Knight, Mitu Gulati, David F. Levi

Faculty Scholarship

Richard Posner famously modeled judges as Bayesians in his book, How Judges Think? A key element of being Bayesian is that one constantly updates with new information. This model of the judge who is constantly learning and updating, particularly about local conditions, also is one of the reasons why the factual determinations of trial judges are given deference on appeal. But do judges in fact act like Bayesian updaters? Judicial evaluations of search warrant requests for probable cause provides an ideal setting to examine this question because the judges in this context have access to information on how well they …

Criminal Adjudication, Error Correction, And Hindsight Blind Spots, Lisa Kern Griffin

Faculty Scholarship

Concerns about hindsight in the law typically arise with regard to the bias that outcome knowledge can produce. But a more difficult problem than the clear view that hindsight appears to provide is the blind spot that it actually has. Because of the conventional wisdom about error review, there is a missed opportunity to ensure meaningful scrutiny. Beyond the confirmation biases that make convictions seem inevitable lies the question whether courts can see what they are meant to assess when they do look closely for error. Standards that require a retrospective showing of materiality, prejudice, or harm turn on what …

Brief Of Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Darryl K. Brown, Robert P. Burns, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar, Jessica L. West

Faculty Scholarship

No abstract provided.

You've Got Legal Mail: Applying Constitutional Protections To Attorney-Inmate E-Mail Communications, Gregory R. Steele

Georgia Law Review

Several U.S. Attorney's offices have begun to read e-mails between defense attorneys and their inmate-clients sent through the Bureau of Prisons TRULINCS system. District courts have been split on how they address the issue. This Note argues that the practice of reading attorney-inmate e- mails violates the Sixth Amendment. It specifically argues that the legal mail doctrine should be applied to invalidate this practice. It then argues the Bureau of Prisons should promulgate new regulations for legal e-mail that ensure compliance with the constitutional requirements of the newly applied legal e-mail doctrine.

Disciplinary Regulation Of Prosecutors As A Remedy For Abuses Of Prosecutorial Discretion: A Descriptive And Normative Analysis, Samuel J. Levine, Bruce A. Green

Scholarly Works

Although courts have traditionally relied primarily on prosecutors’ individual self-restraint and institutional self-regulation to curb prosecutors’ excesses and redress their wrongdoing, aspects of prosecutors’ conduct can be regulated externally as well. One potential source of external regulation is professional discipline. As lawyers, prosecutors are regulated by state courts, which oversee processes for disciplining lawyers who engage in misconduct. In responding to prosecutors’ wrongdoing, courts generally express a preference for professional discipline over civil liability, which is limited by principles of absolute and qualified immunity. Likewise, courts favor professional discipline over adjudicatory remedies such as reversal of criminal convictions or suppression …

Miscarriage Of Justice: The Cognizability Of § 2255 Claims For Erroneous Career Offender Sentences, Matthew B. Rosenthal

Georgia Law Review

Career offender sentencing enhancements present difficult questions for courts. One of the most difficult of these questions is deciding what crimes warrant the application of these serious enhancements. Federal courts sentencing defendants often must decide, with little guidance, what offenses constitute a "crime of violent" or "violent felony." On a few occasions, the Supreme Court has stepped in and told lower courts that certain crimes do not fit within these categories, and that their interpretation of the career offender enhancement is incorrect. Often, the recognition of this misapplication of the enhancements occurs years after an individual defendant has been convicted, …

Legal Indeterminacy In Insanity Cases: Clarifying Wrongfulness And Applying A Triadic Approach To Forensic Evaluations, Kate Bloch, Jeffery Gould

Faculty Scholarship

No abstract provided.

Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Robert P. Burns, Sherman J. Clark, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar

Faculty Scholarship

No abstract provided.

Gonzalez V. State, 131 Nev. Adv. Op. 99 (Dec. 31, 2015), Chelsea Stacey

Nevada Supreme Court Summaries

The Court, sitting en banc, determined that by failing to answer questions from the jury that suggested confusion on a significant element of the law, failing to give an accomplice-distrust instruction, and by not bifurcating the guilt phase from the gang enhancement phase the district court violated the defendant’s right to a fair trial.

State V. Boston, 131 Nev. Adv. Op. 98 (Dec. 31, 2015), Nancy Snow

Nevada Supreme Court Summaries

The Court considers an appeal from a district court order granting a post-conviction petition for a writ of habeas corpus. Specifically, the Court considered whether the holding in Graham applies when an aggregate sentence imposed against a juvenile defender convicted of more than one nonhomicide offense is the equivalent of a life-without-parole sentence. The Court held that it does.

Berry V. State, 131 Nev. Adv. Op. No. 96 (Dec. 24, 2015), Brittany L. Shipp

Nevada Supreme Court Summaries

The issue before the Court was an appeal from a district court order dismissing a post-conviction petition for writ of habeas corpus. The Court reversed and remanded holding that the district court improperly discounted the declarations in support of the appellant’s petition, which included a confession of another suspect, whom the petitioner implicated as the real perpetrator at trial. The Court held that these declarations were sufficient to merit discovery, and an evidentiary hearing on Petitioner Berry’s gateway actual innocence claim.

Newell V. State Of Nevada, 131 Nev. Adv. Op. 97 (December 24, 2015), Douglas H. Smith

Nevada Supreme Court Summaries

The holding of State v. Weddell is extended. Responding with deadly force to the commission of a felony per NRS § 200.160 is justified only when the person poses a threat of serious bodily injury. Short of such a threat, the amount of force used must be reasonable and necessary under the circumstances.

Orange Is The New Equal Protection Violation: How Evidence-Based Sentencing Harms Male Offenders, Shaina D. Massie

William & Mary Bill of Rights Journal

No abstract provided.

Under School Colors: Private University Police As State Actors Under § 1983, Leigh J. Jahnig

Northwestern University Law Review

Under 42 U.S.C. § 1983, individuals may sue those who violate their constitutional rights while acting under color of state law. The Supreme Court has held that private actors may act under color of state law, and may be sued under § 1983 in some circumstances. However, courts have not been consistent in determining whether private university police forces act under color of state law. Private universities often maintain police forces that are given extensive police powers by state statutes but are controlled by private entities. Some courts have looked directly to the state statutes that delegate police power, but …

Officiating Removal, Leah Litman

Articles

For the last several years, the Commonwealth of Pennsylvania has quietly attempted to curtail capital defendants' representation in state postconviction proceedings. In 2011, various justices on the Pennsylvania Supreme Court began to call for federally funded community defender organizations to stop representing capital defendants in state postconviction proceedings. The justices argued, among other things, that the organizations' representation of capital defendants constituted impermissible federal interference with state governmental processes and burdened state judicial resources. The court also alleged the community defender organizations were in violation of federal statutes, which only authorized the organizations to assist state prisoners in federal, but …

The Role Of The South African Criminal Code In Implementing Apartheid, Garry Seltzer

Georgia Journal of International & Comparative Law

No abstract provided.

Alternative Visions For The Federal Criminal Justice And Corrections System: Is True Change Possible?, Nora V. Demleitner

Scholarly Articles

None available.