Criminal Procedure Commons^™

Protecting The Innocent - The Need To Adapt Federal Asset Forfeiture Laws To Protect The Interests Of Third Parties In Digital Asset Seizures, Elizabeth Friedler

Cardozo Arts & Entertainment Law Journal

No abstract provided.

A Rejoinder To Professor Schauer's Commentary, Yale Kamisar

Articles

It is quite a treat to have Professor Frederick Schauer comment on my Miranda article.1 Professor Schauer is a renowned authority on freedom of speech and the author of many thoughtful, probing articles in other areas as well, especially jurisprudence. I am pleased that in large measure, Schauer, too, laments the erosion of Miranda in the last four-and-a-half decades2 and that he, too, was unhappy with the pre-Miranda due process/“totality of circumstances”/“voluntariness” test.3 I also like what Schauer had to say about “prophylactic rules,” a term that has sometimes been used to disparage the Miranda rules.4 As Schauer observes, the …

Freeing Morgan Freeman: Expanding Back-End Release Authority In American Prisons, Frank O. Bowman Iii

Faculty Publications

This article, written for a symposium hosted by the Wake Forest Journal of Law & Policy on “Finality in Sentencing,” makes four arguments, three general and one specific. First, the United States incarcerates too many people for too long, and mechanisms for making prison sentences less “final” will allow the U.S. to make those sentences shorter, thus reducing the prison population surplus. Second, even if one is agnostic about the overall size of the American prison population, it is difficult to deny that least some appreciable fraction of current inmates are serving more time than can reasonably be justified on …

Summary Of Brass V. State, 128 Nev. Adv. Op. 68, Joseph Sakai

Nevada Supreme Court Summaries

An appeal addressing whether a district court committed reversible error by dismissing a prospective juror before conducting a Batson2 hearing, and whether there was evidence to support a kidnapping conviction.

Where Pardons Are Concerned, Second Best May Not Be So Bad After All: A Response To Chad Flanders, Cara H. Drinan

Scholarly Articles

No abstract provided.

Expanding Rape Shield Laws: Breaking Through Prejudice For Better Protection Of Battered Women, Sarah C. Ayres

Cardozo Journal of Equal Rights & Social Justice

The article argues for the expansion of rape shield laws to civil cases involving orders of protection, asserting that the exclusion of evidence regarding consensual sex between a victim and her abuser is crucial to counteract prejudicial stereotypes and provide better legal protection for battered women.

Criminalization In Shades Of Color: Prosecuting Pregnant Drugaddicted Women, Carla-Michelle Adams

Cardozo Journal of Equal Rights & Social Justice

The article argues that criminalizing pregnant women for drug use is both unconstitutional and ineffective. It contends that such prosecutions infringe upon fundamental rights, disproportionately affect minority women, and fail to address the root causes of addiction. The author advocates for a public health approach, emphasizing treatment over punishment to protect both the mother and the fetus.

Goodyear And Hertz: Reconciling Two Recent Supreme Court Decisions, Lindsey D. Blanchard

McGeorge School of Law Scholarly Articles

No abstract provided.

Strange Traffic: Sex, Slavery & The Freedom Principle, Anders Walker

All Faculty Scholarship

This article uses the recent prosecution of a sex trafficking case in rural Missouri to argue three points. One, the federal law of trafficking is currently being used in unanticipated ways, including the apprehension of individuals who pay for sex. Two, trafficking invites creative use precisely because it provides prosecutors with a more salient justification for punishment than either legal moralism or harm; a rhetorical plea to anti-slavery that enjoys a longstanding but under-theorized role in criminal law rhetoric. Three, anti-slavery’s recurrence in criminal law rhetoric underscores a larger doctrinal point, namely that H.L.A. Hart’s version of the harm principle …

Admissibility Compared: The Reception Of Incriminating Expert Evidence (I.E., Forensic Science) In Four Adversarial Jurisdictions, Gary Edmond, Emma Cunliffe, Simon A. Cole, Andrew J. Roberts

All Faculty Publications

There is an epistemic crisis in many areas of forensic science. This crisis emerged largely in response both to the mobilization of a range of academic commentators and critics and the rise and influence of DNA typing. It gained popular and authoritative support through the influence of the National Academy of Science (NAS) and a surprisingly critical report produced under its auspices by a committee of the National Research Council (NRC). Interestingly, as this article endeavors to explain, the courts themselves seem to have played a rather indirect, inconsistent and ultimately ineffective role in the supervision and evaluation of forensic …

Untold Stories Or Miraculous Mirrors? The Possibilities Of A Text-Based Understanding Of Socio-Legal Transcript Research, Emma Cunliffe

All Faculty Publications

Austin Sarat has described legal understandings of the transcript as “the verbatim record of a present soon to become past, a mirror/a record/a voice machine in which the “author” exercises no authorial presence.” In this paper I argue that when seeing a transcript as an authorless mirror of court proceedings, lawyers and socio-legal scholars risk overlooking the ways in which the technology of transcripts influences the record that is produced. Paying attention to the laws and practices governing transcript production allows those who engage in transcript research to appreciate how the transcript is defined in relation to the spoken proceedings …

Gideon At Guantánamo, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The right to counsel maintains an uneasy relationship with the demands of trials for war crimes. Drawing on the author’s personal experiences from defending a Guantánamo detainee, the Author explains how Gideon set a baseline for the right to counsel at Guantánamo. Whether constitutionally required or not, Gideon ultimately framed the way defense lawyers represented their clients. Against the expectations of political and military leaders, both civilian and military lawyers vigorously challenged the legality of the military trial system. At the same time, tensions arose because lawyers devoted to a particular cause (such as attacking the Guantánamo trial system) were …

Military Commissions And The Paradigm Of Prevention, David Cole

Georgetown Law Faculty Publications and Other Works

Why military commissions? Given the United States’s track record of success in trying terrorists in civilian criminal courts, and the availability of courts-martial to try war crimes, why has the United States government, under both the George W. Bush and Barack Obama administrations alike, insisted on proceeding through untested military commissions instead? In May 2009, President Obama defended military commissions with the following claims:

Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for …

Reassessing The Citizens Protection Act: A Good Thing It Passed, And A Good Thing It Failed, Rima Sirota

Georgetown Law Faculty Publications and Other Works

The Citizens Protection Act (CPA) of 1998 has always been a lightening rod for criticism, and it remains so today. This article reassesses the CPA’s perceived inadequacies in light of how it has actually affected (or, not affected) federal prosecutors’ involvement in criminal investigations. The article takes issue with the critics and demonstrates that the CPA succeeded where it should have, failed where it should have, and left us—however inadvertently—with a remarkably coherent and consistent approach to regulating federal prosecutors’ involvement in criminal investigations regardless of whether a suspect retains counsel early in the proceedings.

The CPA requires federal prosecutors …

Four Reforms For The Twenty-First Century, Barry C. Scheck

Articles

What follows are my top four suggestions for judicial action and advocacy that can result in urgently needed and readily achievable reforms. Ass the American Judicature Society and its members consider their agenda and mission for the coming years, each of these issues deserves their support.

The Case Against The Case Against The Death Penalty, Chad W. Flanders

All Faculty Scholarship

Despite the continuing belief by a majority of Americans that the death penalty is morally permissible, the death penalty has few academic defenders. This lack of academic defenders is puzzling because of the strong philosophical justification the death penalty finds in traditional theories of punishment. The three major theories of punishment (the deterrent, the retributive, and the rehabilitative), far from showing that the death penalty is not justified, tend to provide good reasons to favor the death penalty. Indeed, every attempt to show that the major theories of punishment rule out the death penalty either involves smuggling in other assumptions …

Report On Usa, Stephen C. Thaman

All Faculty Scholarship

This chapter in the book on transnational inquiries and the protection of fundamental rights in criminal proceedings takes into account the particular, and perhaps unique situation in the United States (US) following the terrorist attacks of 11 September 2001. It explores the laws regulating inquiries by foreign governments who seek evidence in the US to use in criminal proceedings overseas, but primarily the protections recognized by US statutes and jurisprudence when US officials gather evidence abroad. In this respect, the chapter focuses on protections during interrogations, searches, interceptions of confidential communications, and examinations of witnesses and explores when the protection …

Panel Iv: Challenges To Proving Cases Of Torture Before The Committee Against Torture, Juan E. Mendez

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Desistance And Legitimacy: The Impact Of Offender Notification Meetings On Recidivism Among High Risk Offenders, Andrew V. Papachristos, Danielle M. Wallace, Tracey L. Meares, Jeffrey Fagan

Faculty Scholarship

Objective: Legitimacy-based approaches to crime prevention operate under the assumption that individuals — including violent offenders — are more likely to comply with the law when they believe that the law and its agents are legitimate and act in ways that seem inherently “fair” and “just.” While mounting evidence finds an association between such legitimacy-based programs and reductions in aggregate levels of crime and violence, no study has investigated whether such programs influence individual offending. This study evaluates the effectiveness of one such program — Project Safe Neighborhoods’ (PSN) Offender Notification Meetings — at reducing individual recidivism among a population …

Wisdom Is Thrown Into Jail: Using Therapeutic Jurisprudence To Remediate The Criminalization Of Persons With Mental Illness, Michael L. Perlin

Articles & Chapters

The common wisdom is that there are two related villains in the saga of the “criminalization of persons with mental illness”: the dramatic elimination of psychiatric hospital beds in the 1970s and 1980s as a result of the “civil rights revolution,” and the failure of the deinstitutionalization movement. Both of these explanations are superficially appealing, but neither is correct; in fact, the causal link between deinstitutionalization and criminalization has never been rigorously tested. It is necessary, rather, to consider another issue to which virtually no attention has been or is being paid: the near-disappearance of mental status issues from the …