Criminal Procedure Commons^™

When A Company Confesses, Christopher Jackson

Michigan Law Review

Under the Federal Rules of Criminal Procedure, a defendant is normally obligated to attend all of the proceedings against her. However Rule 43(b)(2) carves out an exception for organizational defendants, stating that they "need not be present" if represented by an attorney. But on its face, the language of 43(b)(2) is ambiguous: is it the defendant or the judge who has the discretion to decide whether the defendant appears? That is, may a judge compel the presence of an organizational defendant? This Note addresses the ambiguity in the context of the plea colloquy, considering the text of several of the …

Amendment 706 To The U.S. Sentencing Guidelines: Not All It Was Cracked Up To Be, Brian Crowell

Villanova Law Review (1956 - )

No abstract provided.

Mainstreaming Civil Rights In The Law School Curriculum: Criminal Law And Procedure, Tamara F. Lawson

Articles

No abstract provided.

But What If The Court Reporter Is Lying? The Right To Confront Hidden Declarants Found In Transcripts Of Former Testimony, Peter Nicolas

Articles

In Part I of this Article, I will illustrate the hidden declarant issue through a series of hypotheticals that highlight both the hearsay and Confrontation Clause problems associated with proving former testimony. Next, in Part II, I will demonstrate that treating the hidden declarant's statements as testimonial, and thus subject to exclusion on Confrontation Clause grounds, is consistent with Crawford and its progeny.

I will then demonstrate, in Part III, that historically, in both England and the United States, the accused had the right to confront hidden declarants, and that the historical exception for former testimony does not extinguish the …

The Prosecutorial Ethic: With Great Power Comes Great Responsibility, Maureen Howard

Articles

Although the American trial system has been likened to an arena in which mental combatants fight “to the death ” (the verdict ), each warrior similarly skilled and equally committed to vanquishing the other in a forum with formal rules of engagement enforced by a learned and impartial judge, the role of the criminal prosecutor is qualitatively different from that of other advocates. This is because, unlike any other lawyer, a criminal prosecutor has an affirmative duty to the opposing party.

Closing Argument: Connecting The Dots For The Jury, Maureen A. Howard

Articles

A common error made by unseasoned attorneys when giving closing argument is retelling the “story” of their case. Storytelling is best used in opening statement, not closing argument. By the time the jurors hear closing argument, they are well acquainted with the story, because they have heard two opening statements and all the evidence.

Closing argument, as the name suggests, is instead the time to argue. This means that in addition to revisiting the theme(s) presented in opening statement, a lawyer may use rhetorical questions, draw conclusions and inferences from the evidence, discuss the credibility of the witness, examine the …

The Contradictions Of Juvenile Crime & Punishment, Jeffery Fagan

Faculty Scholarship

Juvenile incarceration in the United States is, at first glance, distinctly different from its adult counterpart. While some juvenile facilities retain the iconic aesthetic of adult incarceration – orange jumpsuits, large cellblocks, uniformed guards, barbed wire, and similar heavy security measures – others have trappings and atmospherics more reminiscent of boarding schools, therapeutic communities, or small college campuses. These compact, benign settings avoid the physical stigmata of institutional life and accord some autonomy of movement and intimacy in relations with staff. They also give primacy to developmentally appropriate and therapeutic interventions.

Balancing Liberty, Dignity And Safety: The Impact Of Domestic Violence Lethality Screening, Margaret E. Johnson

All Faculty Scholarship

This Article undertakes the first ever analysis of the consequences of the justice and legal system’s extensive use of lethality assessment tools for women subjected to abuse. An increasing number of states are now requiring their police, prosecutors, civil attorneys, advocates, service providers, and court personnel to assess women in order to obtain a score that indicates the woman’s lethality risk because of domestic violence. The mandated danger assessment screen of all women subjected to violence focuses only on the risk of homicide and thereby limits the definition of what is domestic violence. In addition, the accompanying protocol for the …

Security Council Resolution 1820: An Imperfect But Necessary Resolution To Protect Civilians From Rape In War Zones, Melissa Goldenberg Goldstoff

Cardozo Journal of Equal Rights & Social Justice

The note examines the significance and limitations of UN Security Council Resolution 1820, which recognizes rape as a war crime and a threat to international security. While the Resolution is a crucial step forward in protecting women during armed conflicts, it is argued to be imperfect due to its incomplete implementation mechanisms and potential to undermine earlier resolutions like Resolution 1325, which emphasizes women's roles in peace-building.

Bringing Our Kids Home: International Parental Child Abduction & Japan's Refusal To Return Our Children, Robin S. Lee

Cardozo Journal of Equal Rights & Social Justice

The note examines Japan's refusal to ratify the Hague Convention on the Civil Aspects of International Child Abduction, highlighting how this decision creates a legal haven for parental child abductions. It explores the cultural, legal, and systemic factors in Japan that facilitate these abductions and the challenges faced by foreign parents in retrieving their children. The note also discusses potential solutions and international efforts to pressure Japan into adhering to the Convention.

Lessons Learned From The Evolution Of Evolving Standards, Corinna Barrett Lain

Law Faculty Publications

In the discussion that follows, I explore the evolution of the "evolving standards" doctrine to make a point about its legitimacy and Supreme Court decisionmaking under the Cruel and Unusual Punishments Clause more generally. In Part I, I trace the origins of the doctrine to its present state. In Part II, I turn to lessons learned from the evolution of "evolving standards," questioning the textual defense of the doctrine and the constraining power of law itself. I conclude that while the "evolving standards" doctrine is problematic, it is not the crux of the problem. Supreme Court decisionmaking in the death …

The Principle Of Complementarity And The International Criminal Court: The Role Of Ne Bis In Idem, Linda Carter

McGeorge School of Law Scholarly Articles

No abstract provided.

Retribution And Reform, Chad Flanders

All Faculty Scholarship

What is the relationship of punishment theory to punishment practice? What should this relationship be? The last twenty years have seen an amazing rise in sophisticated and elegant theories of retributive justice of a Kantian, and more recently, an expressivist variety - a “retributivist revival.” As pure philosophical theorizing goes, this must surely be counted as real progress. But, those same twenty years have also seen increases in the length of criminal sentences, in the amount of activity subject to criminal sanction, and in the sheer number of people behind bars. Professor James Q. Whitman has famously said that we …

Taking The High Road: Why Prosecutors Should Voluntarily Waive Peremptory Challenges, Maureen A. Howard

Articles

In this Article, I review the efficacy of peremptory challenges and conclude that both empirical and anecdotal evidence confirm such challenges are of little utility. I contend that the marginal benefit of peremptory challenges to a criminal prosecutor is outweighed by the damage done to both the actual and perceived fairness of the system, and that imbalance should persuade prosecutors to consider a wholesale voluntary waiver of peremptory challenges.

"I'M Dying To Tell You What Happened": The Admissibility Of Testimonial Dying Declarations Post-Crawford, Peter Nicolas

Articles

This Article demonstrates the existence and delineates the scope of a federal constitutional definition of "dying declarations" that is distinct from the definitions set forth in the Federal Rules of Evidence and their state counterparts. This Article further demonstrates that states have state constitutional definitions of "dying declarations" (for purposes of interpreting state constitutional analogues to the Confrontation Clause of the Sixth Amendment) that may differ in important respects from the federal constitutional definition of "dying declarations."

This Article then shows that some of the definitions of "dying declarations" contained in federal and state hearsay exceptions exceed the federal and …

Federal Prosecution Of State And Local Officials Using Honest Services Mail Fraud: Where's The Line?, George E.B. Holding, Dennis M. Duffy, John Stuart Bruce

Campbell Law Review

Although there is little dispute that the mail fraud statute has become a valuable part of a federal prosecutor's arsenal, for years legal scholars have debated the extent to which the mail fraud statute should be used to prosecute corrupt state and local officials. In recent years, largely in response to the large number of high profile honest services fraud prosecutions, even members of the mainstream news media are beginning to seek guidance regarding the definition of honest services mail fraud. As noted by Professor George Brown, though the controversy over whether the national government should be responsible for prosecuting …

The Confrontation Clause And The Hearsay Rule: What Hearsay Exceptions Are Testimonial?, Paul W. Grimm, Jerome E. Deise, John R. Grimm

Faculty Scholarship

No abstract provided.

Melendez-Diaz And The Right To Confrontation, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

The Contradictions Of Juvenile Crime & Punishment, Jeffrey Fagan

Faculty Scholarship

This essay explores the contradictions and puzzles of modern juvenile justice, and illustrates the enduring power of the child-saving philosophy of the juvenile court in an era of punitiveness toward offenders both young and old. The exponential growth in incarceration in the U.S. since the 1970s has been more restrained for juveniles than adults, even in the face of a youth violence epidemic that lasted for nearly a decade. Rhetoric has grown harsher in the wake of moral panics about youth crime, juvenile codes now express the language of retribution and incapacitation, yet the growth in incarceration of juveniles was …

Social Welfare And Fairness In Juvenile Crime Regulation, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

The question of how lawmakers should respond to developmental differences between adolescents and adults in formulating juvenile crime policy has been the subject of debate for a generation. A theme of the punitive law reforms that dismantled the traditional juvenile justice system in the 1980s and 1990s was that adolescents were not different from adults in any way that was relevant to criminal punishment – or at least that any differences were trumped by the demands of public safety. But this view has been challenged in recent years; scholars and courts have recognized that adolescents, due to their developmental immaturity, …