Criminal Procedure Commons^™

Full Disclosure: Cognitive Science, Informants, And Search Warrant Scrutiny, Mary Nicol Bowman

Akron Law Review

This article aims to improve the quality of evidence gathering and interpretation at one crucial phase of investigations: the evaluation of search warrant applications. Part II of this article provides background on the search warrant application process, including how courts evaluate such applications based on informants’ tips and how defendants can subsequently challenge those decisions. Part III then discusses the ways in which cognitive biases can affect each stage of the search warrant process. Part IV provides my suggested solutions to the problems identified, all of which fall under the general umbrella of full disclosure. That part argues that education …

Inmates’ E-Mails With Their Attorneys: Off-Limits For The Government?, Amelia H. Barry

Catholic University Law Review

The attorney-client privilege is vital to inmates who otherwise have limited opportunities for private communications in prison. Traditionally, inmates have only been able to communicate with their attorneys via in-person visits, phone calls, and mailed letters. As federal inmates have begun using e-mail to converse with their attorneys, courts have had to determine if these conversations are protected by the attorney-client privilege. This Comment discusses courts’ approaches to this question, many of which have found that inmates’ e-mail communications with their attorneys are not privileged because by using the federal prison e-mail system, which warns users that conversations can be …

Mirandizing Terrorism Suspects? The Public Safety Exception, The Rescue Doctrine, And Implicit Analogies To Self-Defense, Defense Of Others, And Battered Woman Syndrome, Bruce Ching

Catholic University Law Review

In its 1984 decision New York v. Quarles, the Supreme Court announced the public safety exception, under which statements made by un-Mirandized suspects can be admissible when made in response to questions reasonably asked to protect the safety of the arresting officers or the general public. During the investigation of terrorism cases, law enforcement agencies have begun to extend the time of un-Mirandized questioning of suspects, with the hope that courts will find that the public safety exception makes the suspects’ statements admissible in the ensuing prosecutions.

This Article argues that in announcing the public safety exception, …

Criminal Mind Or Inculpable Adolescence? A Glimpse At The History, Failures, And Required Changes Of The American Juvenile Correction System, Christopher J. Menihan

Pace Law Review

This Comment provides an historical analysis of the principles, understandings and laws that have formed and altered the American juvenile correction system. Part I offers an historical synopsis of the societal understanding that juvenile offenders are less culpable than their adult counterparts and explains the process by which this concept came to permeate early American common law. By discussing the early nineteenth-century juvenile correction reformation movement and the cases that followed, Part I also illustrates the development and early failures of the American juvenile correction system. Part II explains the history of juvenile waiver laws, from their early presence in …

Cruel And Unusual Before And After 2012: Miller V. Alabama Must Apply Retroactively, Tracy A. Rhodes

Maryland Law Review

No abstract provided.

The American Jury System: A Synthetic Overview, Richard O. Lempert

Articles

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 …

Disentangling Michigan Court Rule 6.502(G)(2): The "New Evidence" Exception To The Ban On Successive Motions For Relief From Judgment Does Not Contain A Discoverability Requirement, Claire V. Madill

Michigan Law Review

Michigan courts are engaging in a costly interpretative mistake. Confused by the relationship between two distinct legal doctrines, Michigan courts are conflating laws in a manner that precludes convicted defendants from raising their constitutional claims in postconviction proceedings. In Michigan, a convicted defendant who wishes to collaterally attack her conviction must file a 6.500 motion. The Michigan Court Rules generally prohibit “second or subsequent” motions. Nonetheless, section 6.502(G)(2) permits a petitioner to avoid this successive motion ban if her claim relies on “new evidence that was not discovered” before her original postconviction motion. Misguided by the similarity between the language …

Overcriminalizing Speech, Michal Buchhandler-Raphael

Cardozo Law Review

Recent years have seen a significant expansion in the criminal justice system's use of various preemptive measures, aimed to prevent harm before it occurs. This development consists of adopting a myriad of prophylactic statutes, including endangerment crimes, which target behaviors that merely pose a risk of future harm but are not in themselves harmful at the time they are committed.

This Article demonstrates that a significant portion of these endangerment crimes criminalize various forms of speech and expression. Examples include conspiracies, attempts, verbal harassment, instructional speech on how to commit crimes, and possession crimes. The Article argues that in contrast …

Adequacy Of Notice Under Cafra: Resolving Constitutional Due Process Challenges To Administrative Forfeitures, Rebecca Hausner

Cardozo Law Review

No abstract provided.

Newsroom: Horwitz On Closed Courtroom Debate, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Rethinking The Law Of Interrogations And Confessions In Canada, Fariborz Davoudi

PhD Dissertations

This thesis is a discussion about the inadequacy of the Canadian confessions rule in light of what modern forensic psychology reveals about the human mind, and the propensity of legally-sanctioned interrogation tactics to cause suspects to make false confessions. Contemporary forensic psychology research makes it clear that many of the techniques used in police interviewing and interrogation can have the effect of subverting or overbearing an individuals free-choice and can cause them to make a false confession. Yet many of these same techniques are considered acceptable according to the Canadian law of voluntariness.

This thesis examines the confessions rule and …

Investigating Jurors On Social Media, Caren Myers Morrison

Pace Law Review

This essay proceeds in three parts. First, it examines the current state of jury investigations, and how they differ from those conducted in the past. Then, it describes the evolving legal and ethical positions that are combining to encourage such investigations. Finally, it offers a note of caution–condoning such investigations while keeping them hidden from jurors may be perceived as unfair and exploitative, risking a possible backlash from outraged jurors. Instead, I propose a modest measure to provide notice and explanation to jurors that their online information is likely to be searched, and why.

#Snitches Get Stitches: Witness Intimidation In The Age Of Facebook And Twitter, John Browning

Pace Law Review

In order to better understand witness intimidation in the age of social media, one must examine both the forms it has taken as well as the response by law enforcement and the criminal justice system. As this article points out, the digital age has brought with it a host of new ways in which witnesses may be subjected to online harassment and intimidation across multiple platforms, and those means have been used to target not only victims and fact witnesses but even prosecutors and expert witnesses as well. The article will also examine potential responses to the problem of witness …

Summary Of Guitron (Miguel) V. State, 131 Nev. Adv. Op. 27 (May 21, 2015), Aleem Dhalla

Nevada Supreme Court Summaries

The Court determined that (1) the State presented sufficient evidence for a jury to convict Guitron of incest and sexual assault, (2) the district court did err by not allowing Guitron to introduce evidence of the victims sexual knowledge, but this error was harmless, (3) the district court did err refusing to give the jury Guitron’s requested inverse elements instruction, but this error was also harmless, and (4) Guitron could not show that the district court erred by denying his Batson challenge.

Thirty-Two Years On The Federal Bench: Some Things I Have Learned, Judge Emmett Ripley Cox

Florida Law Review

In this Essay, prepared as the basis for the 2014 Dunwody Distinguished Lecture in Law at the University of Florida Levin College of Law, Judge Cox discusses a few things he learned from his experience as a trial judge and later as an appellate judge. Specifically, he addresses how the proliferation of federal law—both criminal and civil—imposes a real burden on the federal courts. This proliferation has negatively affected pleading and pretrial procedures in the federal court system. Additionally, he discusses what lawyers can do about these pleading and pretrial problems.

Over the course of his career Judge Cox have …

The Use Of Criminal Profilers In The Prosecution Of Serial Killers, Chelsea Van Aken

Themis: Research Journal of Justice Studies and Forensic Science

The purpose of this paper is to analyze the concept of criminal profiling in terms of serial killers in the United States. The research provided in this paper was found using the most recent research available on the topic. The FBI’s Behavioral Unit, or National Center for the Analysis of Violent Crime (NCAVC), is the current leading law enforcement agency that investigates these types of crimes. They utilize definitions, typographies, and motives to create a criminal profile to investigate serial killings. Ultimately, these profiles are inadequate because they are inconclusive and exclude multiple suspects that are potentially dangerous. Therefore, criminal …

What Is Federal Habeas Worth?, Samuel R. Wiseman

Scholarly Publications

Federal habeas review of state non-capital cases under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is widely regarded as deeply flawed for producing a huge volume of costly litigation and very little relief. Many scholars have called for AEDPA’s repeal and a return to more robust federal review, but recently, several prominent commentators have suggested more dramatic change— radically limiting federal habeas in exchange for more fruitful reform efforts. In an era of limited criminal justice budgets and an increasing focus on efficiency, these proposals are likely to proliferate. This Article lays out a needed empirical and …

The "Csi Effect" And Its Potential Impact On Juror Decisions, John Alldredge

Themis: Research Journal of Justice Studies and Forensic Science

The “CSI Effect” was first described in the media as a phenomenon resulting from viewing forensic and crime based television shows. This effect influences jurors to have unrealistic expectations of forensic science during a criminal trial and affect jurors’ decisions in the conviction or acquittal process. Research has shown the “CSI Effect” has a possible pro-defense bias, in that jurors are less likely to convict without the presence of some sort of forensic evidence. Some studies show actors in the criminal justice system are changing their tactics, as if this effect has a significant influence, causing them to request unnecessary …

Did They Ever Stand A Chance? Understanding Police Interrogations Of Juveniles, Brian Werner

Themis: Research Journal of Justice Studies and Forensic Science

The Miranda v. Arizona (1966) decision was a pivotal case in the United States. It afforded rights to suspects and defendants against self-incrimination and representation during police interrogations. Miranda ensured police read individuals in custody their rights before interrogations. However, what happens when individuals being read their rights do not fully comprehend the significance of what the police are telling them, whether it is because of lack of comprehension due to brain development, or susceptibility to the influence of those questioning them? The courts have examined these direct issues when it comes to “voluntary” confessions made by juveniles. Several cases …

Mitya Karamazov Gives The Supreme Court An Onion: The Role Of Confessions, Amy D. Ronner

Mercer Law Review

Part II summarizes seminal United States Supreme Court confession cases. The Court has a longstanding hate-love relationship with confessions: while it believes that such evidence can valuably assist the truth-finding process, it has at times questioned its reliability and mistrusted coercive methods used for extraction. The Court's express goal under the Due Process Clause and Miranda v. Arizona is to ensure that confessions are the product of a free and rational choice. Although the Sixth Amendment and accompanying case law explicitly aim to protect the integrity of the adversarial process, freedom and rationality also (but more subtly) undergird the reasoning. …