Criminal Procedure Commons^™

Factually Innocent Without Dna? An Analysis Of Utah's Factual Innocence Statute, Nic Caine

Utah OnLaw: The Utah Law Review Online Supplement

Since 1989, DNA evidence has fueled the innocence movement, helping hundreds prove their innocence and obtain freedom. DNA technology has been an invaluable development for the innocence movement, and DNA technology will continue to advance and improve in the future. DNA evidence is not available in the majority of cases, however, and many believe that DNA exonerations will eventually diminish as DNA analysis becomes more widely available. Furthermore, “for every DNA exoneree there are hundreds if not over a thousand wrongfully convicted defendants whose cases do not contain biological evidence that could prove innocence.”150 It is time for other states …

Justice Kennedy’S Sixth Amendment Pragmatism, Stephanos Bibas

McGeorge Law Review

No abstract provided.

The Weight Of A Human Heart, Jane Olmsted

Diversity&Community Studies Faculty Publications

No abstract provided.

Unrepresented And Untimely: The Pcra's Disservice To Indigent Prisoners, Nathan Margioni

Utah OnLaw: The Utah Law Review Online Supplement

The Post-Conviction Remedies Act’s fundamental flaw is its effect on the availability of relief to indigent prisoners. A post-conviction review is often a prisoner’s only opportunity to challenge the failure of appellate counsel to provide effective assistance. Because the legislature has eliminated the common law writ of habeas corpus as a method to challenge a conviction or sentence, the PCRA is the only available avenue for a post-conviction review. The indigent defendant, however, is particularly vulnerable to the PCRA’s restrictions, due to his or her reliance on appointed rather than private counsel during the appeals phase, and lack of resources …

Life, Liberty, And The Pursuit Of Justice: A Comparative Legal Study Of The Amanda Knox Case, Danielle Lenth

McGeorge Law Review

No abstract provided.

A Smarter Rule For Smarter Phones: Why Sila Does Not Protect Our Smartphones And Why The California Legislature Should, Russell Cooper

McGeorge Law Review

No abstract provided.

The Evolution Of Justice Kennedy’S Eighth Amendment Jurisprudence On Categorical Bars In Capital Cases, Linda Carter

McGeorge School of Law Scholarly Articles

No abstract provided.

Process For The Dispossessed: Procedural Rights From Magna Carta To Modern International Law, Mark A. Drumbl

Scholarly Articles

Due process matters greatly to distinguished philosopher Larry May, who advocates for a vigourous assertion of procedural rights as constituting an international rule of law. He undertakes this ambitious, a la fois aspirational, task in Global Justice and Due Process.

Changing Tides: An Adaptable Prosecution Approach To Piracy’S Shifting Problem, Jessica Piquet

National Security Law Program

Although piracy off the coast of Somalia has captured worldwide attention, attacks in this region are decreasing while other regions are experiencing increases in pirate activity. This Note expands upon prior research into prosecution models for combatting piracy off the coast of Somalia to determine the adaptability and sustainability of these methods as applied to piracy in other regions. In examining the three most common prosecution models currently used and proposed (prosecution by domestic courts in regional states, prosecution by the capturing state or by a state with a significant nexus to the attack, and prosecution by a specialized piracy …

The Supreme Court Screws Up The Science: There Is No Abusive Head Trauma/Shaken Baby Syndrome “Scientific” Controversy, Joelle A. Moreno, Brian Holmgren

Faculty Publications

No abstract provided.

Regression To The Mean: How Miranda Has Become A Tragicomical Farce, Alfredo Garcia

St. Thomas Law Review

In my original article, I examined Miranda's historical and social background, discussed its precursors, traced the evolution of the case, and documented the dismantling of the Miranda doctrine. I also argued that the doctrine's "seductive appeal" lulled defense counsel into a false sense of security, thereby deflecting reliance on the "voluntariness" standard as a failsafe to Miranda. Further, I maintained that a waiver of Miranda in some instances served to sanitize an otherwise involuntary confession. Finally, I proposed to "do away" with Miranda, to return to the voluntariness standard with one caveat: that the government be precluded from relying on …

The Procedural Due Process Rights Of The Stigmatized Prisoner, Lindsey Webb

Sturm College of Law: Faculty Scholarship

This Article addresses the role of stigma in procedural due process claims brought by prisoners. In particular, the Article focuses on inmates whom prisons have classified as sexual offenders although they have never been convicted of a sex offense. Prisons label these inmates—identified here as the “branded class”—as sexual offenders based on information outside of the inmates’ conviction histories, including charges that ended in dismissal or acquittal. As a result of the sex offender classification, prisons impose upon the branded class a wide range of sex offender-specific conditions, including mandatory treatment and sex offender registration.

In addressing procedural due process …

Confronting The Dead: The Supreme Court's Confrontation Clause Jurisprudence And Its Implications For Autopsy Reports, Reid R. Allison

Criminal Law Practitioner

No abstract provided.

Innocent Until Presumed Guilty: Florida’S Mistreatment Of Mens Rea And The Presumption Of Innocence In Drug Possession Cases, 46 J. Marshall L. Rev. 1157 (2013), Sean Mullins

UIC Law Review

No abstract provided.

Clever Contraband: Why Illinois’ Lockstep With The U.S. Supreme Court Gives Police Authority To Search The Bowels Of Your Vehicle, 47 J. Marshall L. Rev. 425 (2013), Jason Cooper

UIC Law Review

No abstract provided.

Culpability, Deterrence, And The Exclusionary Rule, Kit Kinports

Faculty Scholarship

This Article discusses the Supreme Court’s use of the concepts of culpability and deterrence in its Fourth Amendment jurisprudence, in particular, in the opinions applying the good-faith exception to the exclusionary rule. The contemporary Court sees deterrence as the exclusionary rule’s sole function, and the Article begins by taking the Court at its word, evaluating its exclusionary rule case law on its own terms. Drawing on three different theories of deterrence – economic rational choice theory, organizational theory, and the expressive account of punishment – the Article analyzes the mechanics by which the exclusionary rule deters unconstitutional searches and questions …

Evidence-Based Sentencing And The Scientific Rationalization Of Discrimination, Sonja B. Starr

Law & Economics Working Papers

This paper critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise-condemned discrimination, sanitized by scientific language. To demonstrate that this practice should be subject to heightened constitutional scrutiny, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that it cannot survive that scrutiny and is undesirable policy, I review the empirical evidence underlying the instruments. I …

The Unanimous Verdict According To The Talmud: Ancient Law Providing Insight Into Modern Legal Theory, Ephraim Glatt

Pace International Law Review Online Companion

Part I of this paper will provide background information regarding the current academic discussion surrounding the unanimous verdict. Part II will discuss the startling Talmudic passage on the unanimous verdict. It will additionally focus on one explanation that radically reinterprets this passage. Part IIIA will introduce two schools of thought on the rationale behind the anti-unanimity rule. Part IIIB will highlight two areas of modern legal theory affected by such rationales.

Transcending Victimhood: Child Soldiers And Restorative Justice, In Victims Of International Crimes: An Interdisciplinary Discourse (Thorsten Bonacker & Christoph Safferling Eds., 2013), Mark A. Drumbl

Books and Chapters

The international community strives to eradicate the scourge of child soldiering. Mostly, though, these efforts replay the same narratives and circulate the same assumptions. This chapter, which takes a second look at these efforts, aspires to refresh law and policy so as to improve preventative, restorative, and remedial initiatives while also vivifying the dignity of youth. As a starting point, this chapter proposes that the dominant language used to characterise child soldiers—that of passive victimhood—be revisited so as to better recognise the potentiality of child soldiers to participate in and lead post-conflict reconstructive efforts. This chapter suggests a variety of …

Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Tamara Rice Lave, Aviva Orenstein

Articles

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on …