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Preventive Detention In American Theory And Practice, Adam Klein, Benjamin Wittes 2011 Columbia Law School

Preventive Detention In American Theory And Practice, Adam Klein, Benjamin Wittes

National Security Law Program

It is something of an article of faith in public and academic discourse that preventive detention runs counter to American values and law. This meme has become standard fare among human rights groups and in a great deal of legal scholarship. It treats the past nine years of extra-criminal detention of terrorism suspects as an extraordinary aberration from a strong American constitutional norm, under which government locks up citizens pursuant only to criminal punishment, not because of mere fear of their future acts. This argument further asserts that any statutory counterterrorism administrative detention regime would be a radical departure from …


The Evolution Of The Law Of Evidence: Plus Ça Change…?, Robert Currie 2011 Dalhousie Law School

The Evolution Of The Law Of Evidence: Plus Ça Change…?, Robert Currie

Articles, Book Chapters, & Popular Press

Originally prepared as a CLE backgrounder for criminal lawyers, this article provides a brief and occasionally critical account of developments in the law of evidence over the last three or so decades. Particular attention is paid to the Supreme Court of Canada’s introduction and development of the “principled approach.” It is argued that this framework has been most successful where it has coalesced into a more traditional-looking “rules-based” stance, albeit one based in principle, and less so where looser tests of principle have been given freer rein.


The Timely Demise Of The Fourth Amendment Third Party Doctrine, Stephen E. Henderson 2011 University of Oklahoma College of Law

The Timely Demise Of The Fourth Amendment Third Party Doctrine, Stephen E. Henderson

Faculty Articles

In what may be a slightly premature obituary, in this response to a forthcoming paper by Matthew Tokson I argue that the Fourth Amendment third party doctrine "has at least taken ill, and it can be hoped it is an illness from which it will never recover." It is increasingly unpopular as a matter of state constitutional law, has long been assailed in scholarship but now thoughtful alternatives are percolating, and it cannot – or at least should not – withstand the pressures which technology and social norms are placing upon it. Even the Supreme Court seems loath to defend …


Seen But Not Heard: An Argument For Granting Evidentiary Hearings To Weigh The Credibility Of Recanted Testimony, Michael M. Hill 2011 University of Georgia School of Law

Seen But Not Heard: An Argument For Granting Evidentiary Hearings To Weigh The Credibility Of Recanted Testimony, Michael M. Hill

Georgia Law Review

The case of Troy Davis shows how difficult it is for a
convicted criminal defendant to obtain postconviction
review of witness recantations. Convicted of murder on
the testimony of nine eyewitnesses, Davis spent over a
decade petitioning for judicial review of the recantations of
seven of those witnesses before the U.S. Supreme Court
ordered an evidentiary hearing in 2009. Concurrently, the
DNA revolution continued to prove the innocence of an
increasing number of convicted inmates across the nation,
and the majority of those convictions had relied on
eyewitness testimony. If these scientific advances suggest
that eyewitness identification is not as …


Gideon'S Vuvuzela: Reconciling The Sixth Amendments Promises With The Doctrines Of Forfeiture And Implicit Waiver Of Counsel, Sarah Gerwig-Moore 2011 Mercer University School of Law

Gideon'S Vuvuzela: Reconciling The Sixth Amendments Promises With The Doctrines Of Forfeiture And Implicit Waiver Of Counsel, Sarah Gerwig-Moore

Articles

Dating back to the early decades of the twentieth century, the United States Supreme Court has articulated clear, venerable standards for the waiver of constitutional rights--and in particular the right to counsel. This is a rich area for both litigation and teaching, if only to be able to repeat phrases such as "courts indulge every reasonable presumption against waiver" and "we do not presume acquiescence in the loss of fundamental rights." A defendant must proceed with "eyes open," and a waiver will not be presumed from a "silent record." Consistently affirmed and reaffirmed by the United States Supreme Court and …


Prosecutorial Decisionmaking And Discretion In The Charging Function, Bennett L. Gershman 2011 Elisabeth Haub School of Law at Pace University

Prosecutorial Decisionmaking And Discretion In The Charging Function, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

A prosecutor's charging decision is the heart of the prosecution function. The charging decision involves an extraordinary exercise of discretionary power that is unreviewable. As a result, the decision is difficult to guide except in the broadest terms. The proposed revisions to the ABA's Criminal Justice Standards for the Prosecution Function attempt to address several key issues that inform the charging decision, by broadening the language of several provisions of the current Standards as well as adding several new provisions. To be sure, the proposed Standards significantly change the current Standards with respect to the proper factors and considerations affecting …


The Zealous Prosecutor As Minister Of Justice, Bennett L. Gershman 2011 Elisabeth Haub School of Law at Pace University

The Zealous Prosecutor As Minister Of Justice, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

As my contribution to this Memorial tribute to Professor Fred Zacharias, I have chosen to write about Fred's 1991 article in theVanderbilt Law Review entitled Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice? I have always seen this article as a classic, one of the finest and most important discussions of the special role of the prosecutor in the criminal justice system and of the meaning of the prosecutor's ethical duty to “do justice.” This article is cited repeatedly for numerous points: the conception of the prosecutor's duty not to win a case but to see …


Real Rape, Too, Bennett Capers 2011 Brooklyn Law School

Real Rape, Too, Bennett Capers

Faculty Scholarship

No abstract provided.


Statutory Interpretation, Morality, And The Text, Lawrence Solan 2011 Brooklyn Law School

Statutory Interpretation, Morality, And The Text, Lawrence Solan

Faculty Scholarship

No abstract provided.


When An Offense Is Not An Offense: Rethinking The Supreme Court’S Reasonable Doubt Jurisprudence, Luis E. Chiesa 2011 Pace Law School

When An Offense Is Not An Offense: Rethinking The Supreme Court’S Reasonable Doubt Jurisprudence, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

No abstract provided.


The Rise And Fall Of The Miranda Warnings In Popular Culture, Ronald Steiner, Rebecca Bauer, Rohit Talwar 2011 Cleveland State University

The Rise And Fall Of The Miranda Warnings In Popular Culture, Ronald Steiner, Rebecca Bauer, Rohit Talwar

Cleveland State Law Review

While Dickerson's rationale is certainly correct in presuming that those over thirty have already learned about the Miranda warning from decades of television, younger generations only have today's Miranda-less programming on which to form their assumptions about law enforcement. Miranda can still be found on television, but its presence has severely diminished over the years. If this trend continues, how will America's current youth internalize the Miranda warning in the way older generations have? Near-universal awareness of Miranda is an artifact of a shared popular culture in which the repetition of the warnings was pervasive and inescapable. But how can …


Brady-Based Prosecutorial Misconduct Claims, Buckley, And The Arkansas Coram Nobis Remedy, J. Thomas Sullivan 2011 University of Arkansas at Little Rock William H. Bowen School of Law

Brady-Based Prosecutorial Misconduct Claims, Buckley, And The Arkansas Coram Nobis Remedy, J. Thomas Sullivan

Law Faculty Scholarship

No abstract provided.


Hearsay After Crawford: A Practitioner's Guide, Marcia G. Cooke 2011 United States District Court for the Southern District of Florida

Hearsay After Crawford: A Practitioner's Guide, Marcia G. Cooke

St. Thomas Law Review

The Sixth Amendment to the U.S. Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." Although it may appear simple, concise and direct, the language of the Sixth Amendment has been the subject of much discussion.' The Confrontation Clause has been inevitably comingled with the hearsay rules, and determining when an out-of-court statement violates the rights of criminal defendants has been no easy task. For many years, it was uncontested, as established in Ohio v. Roberts, that to avoid violating a criminal defendant's Sixth Amendment rights, the …


Fear Itself: The Impact Of Allegations Of Gang Affiliation On Pre-Trial Detention, K. B. Howell 2011 CUNY School of Law

Fear Itself: The Impact Of Allegations Of Gang Affiliation On Pre-Trial Detention, K. B. Howell

St. Thomas Law Review

This article addresses the impact of alleged gang membership at the initial detention/bail determination for three reasons. First, the right to non-excessive bail is guaranteed by the Eighth Amendment. Second, although the impact of trial testimony about gangs presents a number of issues meriting exploration, the vast majority of criminal cases are either dismissed or resolved by plea. This is particularly so when charges are less serious. When misdemeanors or low-level felonies are charged, the incarceration of the defendant on excessive pre-trial bail will alter negotiation dynamics such that a defendant is likely to plead guilty in order to obtain …


The Importance Of Federal Habeas Review As A Means To Challenge Florida's Death Penalty Sentencing And Drug Possession Statutes, Donna L. Eng 2011 University of Florida Levin College of Law

The Importance Of Federal Habeas Review As A Means To Challenge Florida's Death Penalty Sentencing And Drug Possession Statutes, Donna L. Eng

UF Law Faculty Publications

The importance of Federal habeas review of Florida's death penalty and drug possession statues should become apparent in light of the current legal and political landscape surrounding Florida's death penalty scheme. When a State is unable to independently comply with the mandates of the United States Constitution, the citizens of that State have no option other than seek redress in Federal court.


Regulating The Science Of Forensic Evidence: A Broken System Requires A New Federal Agency, Jessica D. Gabel, Ashley D. Champion 2011 Georgia State University College of Law

Regulating The Science Of Forensic Evidence: A Broken System Requires A New Federal Agency, Jessica D. Gabel, Ashley D. Champion

Faculty Publications By Year

Professor Gabel and Ms. Champion agree with Mr. Goldstein's argument that serious validity and reliability problems plague forensic science, but, using the recent Troy Davis case in Georgia as an illustration, they argue for federal rather than state oversight. Gabel and Champion assert that many states lack the funding to construct an adequate system and that the fragmentation caused by different state systems would be a significant impediment to reform. They suggest a federal agency that, like the Environmental Protection Agency, would set minimum standards but allow states to experiment with enhanced regulation.


Criminal Acts & Ethical Dilemmas: Some Client Nightmares Sneak Up On You, Barbara Glesner Fines 2011 University of Missouri - Kansas City, School of Law

Criminal Acts & Ethical Dilemmas: Some Client Nightmares Sneak Up On You, Barbara Glesner Fines

Faculty Works

No abstract provided.


Keeping 'Reasonable Grounds' Meaningful, Steve Coughlan 2011 Dalhousie University Schulich School of Law

Keeping 'Reasonable Grounds' Meaningful, Steve Coughlan

Articles, Book Chapters, & Popular Press

Two recent Court of Appeal cases (R. v. Jir and R. v. Bush, both reported ante, pp. 53 and 29) are examples of tendencies in some recent decisions to weaken the "reasonable grounds" standard for arrest. That the reasonable grounds standard for arrest is important is beyond question. As the Supreme Court of Canada has said, Without such an important standard, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state. In subtle and sometimes unintentional ways, however, the reasonable ground standard is being undermined. This short article will examine …


The Supreme Court's Love-Hate Relationship With Miranda, Kit Kinports 2011 Penn State Law

The Supreme Court's Love-Hate Relationship With Miranda, Kit Kinports

Faculty Scholarship

In recent years, the Supreme Court has enjoyed a love-hate relationship with its landmark decision in Miranda v. Arizona. While the Court has not hesitated to narrow Miranda’s reach, it has also been wary of deliberate efforts to circumvent it. This pragmatic approach to Miranda can be doctrinally unsatisfying and even incoherent at times, but it basically maintains the core structure of Miranda as the police have come to know and adapt to it.

Last Term provided the first glimpse of the Roberts Court’s views on Miranda, as the Court considered three Miranda cases: Maryland v. Shatzer …


Pretrial Incentives, Post-Conviction Review, And Sorting Criminal Prosecutions By Guilt Or Innocence, Samuel R. Gross 2011 University of Michigan Law School

Pretrial Incentives, Post-Conviction Review, And Sorting Criminal Prosecutions By Guilt Or Innocence, Samuel R. Gross

Articles

The fundamental problem with false convictions is that they are unobserved, and in general, unobservable. We don't spot them when they happen-if we did, they wouldn't happen-and in most cases we can't identify them after the fact. We have no general reliable test for innocence or guilt; if we did, we'd use it at trial. As result, we often say that we don't know for sure whether a convicted criminal defendant is innocent or guilty, or even that we can't know for sure. But this isn't exactly true-or rather, its truth depends on who we mean by "we."


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