Criminal Procedure Commons^™

Book Review Of Fraudulent Evidence Before Public International Tribunals: The Dirty Stories Of International Law, Nancy Amoury Combs

Faculty Publications

No abstract provided.

Choice Of Counsel And The Appearance Of Equal Justice Under Law, Wesley M. Oliver

Northwestern University Law Review

Once a federal prosecutor obtains an indictment that seeks a forfeiture, a judge must permit the prosecutor to freeze all the potentially forfeitable assets that would be unavailable at the time of conviction. Obviously, funds used for the defense would fit into that category. Equally obvious is the tension between the government’s interest in assets that may be forfeitable and a defendant’s Sixth Amendment right to choice of counsel. A number of lower courts therefore had permitted defendants to seek release of the assets needed for a defense by challenging the grand jury’s determination that probable cause existed to believe …

Civil Disabilities In An Era Of Diminishing Privacy: A Disability Approach For The Use Of Criminal Records In Hiring, Andrew Elmore

Faculty Scholarship

An evaluation of normative and legal frameworks to encourage the employment of people with criminal convictions is in order. While current approaches are likely to eliminate overbroad initial hiring screens, there remains the unfinished project of reintegrating persons with criminal convictions into the workforce. For this, policy tools are needed to discourage the misuse of irrelevant criminal convictions and to encourage a contextualized evaluation of criminal convictions and the fair consideration of applicants’ qualifications separate from them.

This Article proposes a disability normative and legal framework as a useful approach to guide this analysis. Disability laws first consider the privacy …

Summary Of Lisle V. State, 131 Nev. Adv. Op. 39 (June 25, 2015), Adam Wynott

Nevada Supreme Court Summaries

The Court held that the petitions filed by the appellant, Kevin James Lisle (Lisle), were procedurally barred. The Court determined that a petitioner cannot present new evidence of mitigating circumstances in order to prove actual innocence of the death penalty. The Court determined that the claims of Lisle did not warrant relief and upheld the district court ruling.

Developmental Detour: How The Minimalism Of Miller V. Alabama Led The Court's "Kids Are Different" Eighth Amendment Jurisprudence Down A Blind Alley, Mary Berkheiser

Akron Law Review

With its narrow ruling, Miller has taken the Eighth Amendment kids are different jurisprudence on a deleterious detour that could lead Miller and Jackson and others like them to a certain dead end. Where Miller went wrong is the subject of this paper. It begins with Graham and the significance of the Court’s ruling that the Eighth Amendment categorically precludes imposition of a sentence of life without parole on a juvenile nonhomicide offender. Next, this paper turns to the Supreme Court’s decision in Miller, parsing the Court’s reliance on precedent and the reasoning that led it to adopt a ruling …

The New State Postconviction, Giovanna Shay

Akron Law Review

I argue in this paper that, because Maples and Martinez coincide with other important developments that make state postconviction more important, they could have critical synergistic effects. Maples and Martinez create incentive for states to provide effective counsel in state postconviction at a moment when these proceedings are being forced to assume a new role in the development of federal constitutional criminal procedure. The confluence of these events could produce a new era in state postconviction.

Bright Lines, Black Bodies: The Florence Strip Search Case And Its Dire Repercussions, Teresa A. Miller

Akron Law Review

Part I is a brief history of Search and Seizure law, focusing on seismic doctrinal shifts that occurred from the 1950s to the present. As a framework for the important cases, the Founders’ concerns about abuse of governmental authority are discussed, as well as the rights protected by the Fourth Amendment. Various governmental programs will also be presented, such as the War on Drugs and its call for a large-scale federal anti-drug policy, first initiated by President Richard Nixon in 1969. Part II is a description of the central reasoning presented in Florence v. Board of Chosen Freeholders, including the …

Florence V. Board Of Chosen Freeholders: Police Power Takes A More Intrusive Turn, Wayne A. Logan

Akron Law Review

This symposium affords an opportunity to reflect upon the combined force of Florence and one of its foundational precedents, also decided by a 5-4 vote: Atwater v. City of Lago Vista. In Atwater, the Court afforded police explicit authority to arrest individuals for very minor offenses (there failure to wear a seatbelt) without a warrant, paving the way not only for arrests such as experienced by Albert Florence, but also a myriad of others, based on laws contained in state, local and federal codes. With Atwater, the Court refused to limit the governmental power to subject individuals to the trauma …

The Modest Effect Of Minneci V. Pollard On Inmate Litigants, Alexander Volokh

Akron Law Review

This Symposium, on the recent Supreme Court Term’s criminal procedure jurisprudence, illustrates these complexities. Of the five “cases” discussed here, three come out in a “liberal” direction and two come out in a “conservative” direction. Nor do the results merely stem from Justice Kennedy’s swing vote (though he was in the majority in all of these cases); one of the “liberal” cases was decided by a majority of seven Justices, and one of the “conservative” ones was decided by a majority of eight. Looking at these cases together is a good way of reminding us to be wary of simplistic …

The Duke Rape Case Five Years Later: Lessons For The Academy, The Media, And The Criminal Justice System, Dan Subotnik

Akron Law Review

The time that has since passed allows for a more comprehensive evaluation of the cultural meaning of the Duke Rape case. This is the goal of the newly released “Institutional Failures,” which constitutes a point of departure for this review. The aim of this article is first to clarify the contribution this book makes to an understanding of the case. I will describe and analyze the content of the nine essays that make up the book; I will make reference to related works, and I will offer a concluding evaluation of the book’s likely impact.

Juror Bias, Voir Dire, And The Judge-Jury Relationship, Nancy S. Marder

Chicago-Kent Law Review

In the United States, voir dire is viewed as essential to selecting an impartial jury. Judges, lawyers, and the public fervently believe that a fair trial depends on distinguishing between prospective jurors who are impartial and those who are not. However, in England, Australia, and Canada, there are impartial jury trials without voir dire. This article challenges the assumption that prospective jurors enter the courtroom as either impartial or partial and that voir dire will reveal the impartial ones. Though voir dire fails as an “impartiality detector,” this article explores how voir dire contributes to the trial process in two …

A Tale Of Two Countries' Engagement With The Fair Cross Section Right: Aboriginal Underrepresentation On Ontario Juries And The Boston Marathon Bomber's Jury Wheel Challenge, Marie Comiskey

Chicago-Kent Law Review

In both Canada and the United States, the constitutional right to a jury trial includes the right to select a jury from a representative cross-section of the jury-eligible population. This article compares and contrasts how this right has been interpreted in the two countries through the lens of recent controversies. In Part I, the article examines how the Supreme Court of Canada and the United States Supreme Court have defined the representative cross-section component of the right to a jury trial in the two respective countries. In Part II, the article focuses on the crisis of Aboriginal underrepresentation on coroner …

Four Models Of Jury Democracy, Jeffrey Abramson

Chicago-Kent Law Review

This article proposes a theory of “representative deliberation” to describe the democratic ideal that jurors seek to practice. Given its long history, the jury does not fit neatly into any one of the most familiar types of democracy, such as direct democracy, representative democracy, or deliberative democracy. However, the jury does hold together elements of all of these theories. In line with direct democracy, we select jurors from the people-at-large. In line with representative democracy, we seek to draw jurors from a representative cross-section of the community. In line with deliberative democracy, jurors talk as well as vote and seek …

Some Limitations Of Experimental Psychologists' Criticisms Of The American Trial, Robert P. Burns

Chicago-Kent Law Review

For decades, psychologists have conducted experiments that have suggested severe limitations on human cognitive capacities. Many have suggested that these results have important, and largely negative, consequences for an assessment of the reliability of the American trial. They have pointed persuasively at the disturbing number of exonerations of those convicted after trial. And some have gone on to make specific proposals for the incremental, and sometimes radical, changes in the conduct of the adversary trial. This essay places these studies, as forcefully presented by Professor Dan Simon, in a normative context, and argues that they are more powerful in suggesting …

Ears Of The Deaf: The Theory And Reality Of Lay Judges In Mixed Tribunals, Sanja Kutnjak Ivković

Chicago-Kent Law Review

This paper explores mixed tribunals, a unique form of lay participation in which lay and professional judges make legal decisions jointly. A short overview of different types and sizes of mixed tribunals around the world will be discussed first. Then, the paper will elaborate on the theoretical arguments that hypothesize about the nature and extent of interaction in mixed tribunals. These theoretical arguments, developed using the status characteristics theory, will be assessed using the evidence obtained in empirical studies of mixed tribunals. In addition, the paper will discuss other potential challenges faced by mixed tribunals. In the end, the paper …

Decision-Making In The Dark: How Pre-Trial Errors Change The Narrative In Criminal Jury Trials, Kara Mackillop, Neil Vidmar

Chicago-Kent Law Review

The jury trial plays a critical constitutional and institutional role in American jurisprudence. Jury service is, technically, the only constitutional requirement demanded of our citizens and, as such, places an important responsibility on those chosen to serve on any jury, especially within the criminal justice system. Jury research has established that, generally, jurors take their responsibilities seriously; they work with the evidence presented at trial and they reach verdicts that correlate to the narratives they develop throughout the trial. But with estimates of wrongful conviction rates as high as five percent in serious felony cases, how are juries getting it …

Preventing Juror Misconduct In A Digital World, Thaddeus Hoffmeister

Chicago-Kent Law Review

This article examines the reform efforts employed by common law countries to address internet-related juror misconduct, which generally arises when jurors use technology to improperly research or discuss a case. The three specific areas of reform are (1) punishment, (2) oversight, and (3) education. The first measure can take various forms ranging from fines to public embarrassment to incarceration. The common theme with all punishments is that once imposed, they make citizens less inclined to want to serve as jurors. Therefore, penalties should be a last resort in preventing juror misconduct.

The second reform measure is oversight, which occurs in …

The American Jury System: A Synthetic Overview, Richard Lempert

Chicago-Kent Law Review

This essay is intended to provide in brief compass a review of much that is known about the American jury system, including the jury’s historical origins, its political role, controversies over its role and structure, its performance, both absolutely and in comparison to judges and mixed tribunals, and proposals for improving the jury system. The essay is informed throughout by 50 years of research on the jury system, beginning with the 1965 publication of Kalven and Zeisel’s seminal book, The American Jury. The political importance of the jury is seen to lie more in the jury’s status as a one …

When Are The People Ready? The Interplay Between Facial Sufficiency And Readiness Under Cpl Section 30.30, John H. Wilson

Pace Law Review

In this article, we will explore the intersecting concepts of conversion, facial sufficiency, and readiness. As we shall see, readiness for trial does not necessarily follow from the conversion of a complaint and dismissal on CPL section 30.30 grounds does not necessarily follow from a finding of facial insufficiency.

Implicated But Not Charged: Improving Due Process For Unindicted Co-Conspirators, Raeed N. Tayeh

Akron Law Review

This Comment posits that the practice of publicly naming unindicted co-conspirators before trial violates due process and that unless preventative measures are adopted to halt this practice, such due process violations will continue. This conclusion is buttressed by the text that follows, which surveys the relevant case law on the rights of unindicted co-conspirators, highlights the types of harm that a sample of unindicted co-conspirators have suffered as a result of being publicly named, and proposes procedures and rules that, if adopted, would conform with due process and help prevent these harms.

In this Comment, I will expand on the …