A Tennessee prosecutor in the case of State v. Powell apparently moved to preclude the defense from referring to his side as “the government.” The defense lawyer had an entertaining response. You can get the whole motion here, but I’ve reproduced most of it below: [NOTE: I’VE ALSO UPDATED BELOW THE FOLD WITH MORE INFORMATION.] […]
Archive | Criminal Procedure
Possible Federal Prosecution of George Zimmerman, and the “Dual Sovereignty” Exception to the Double Jeopardy Clause
The recent talk about a possible federal prosecution of George Zimmerman reminds me that my colleague Stuart Banner recently filed a petition for certiorari challenging the “dual sovereignty” exception to the Double Jeopardy Clause. The case is Roach v. Missouri, and Stuart’s historical argument strikes me as quite powerful, though I should stress that I’m […]
The Six-Person Jury in the Zimmerman Case
There’s a six-person jury in the Zimmerman case — why six rather than twelve? The Supreme Court has held, in Williams v. Florida (1970), that the right to trial by jury doesn’t require the traditional jury of twelve people; six suffices. (Ballew v. Georgia (1978) held that juries of five or fewer are unconstitutional.) Nonetheless, […]
“Revisiting the ‘Preponderance’ Debate”
Joe Cohn of the Foundation for Individual Rights in Education — a group which I very much respect — passed along this response to my post on whether universities should apply the “preponderance of the evidence” standard in deciding whether to expel or otherwise discipline students accused of sexual assault: Professor Volokh recently authored a […]
Quantum of Proof in University Sexual Assault Investigations
When a university is deciding whether to expel, suspend, or otherwise discipline a student for an alleged sexual assault, how much proof should the university proceeding require? Should the student’s guilt be shown by “clear and convincing evidence”? By a “preponderance of the evidence,” which is what the Department of Education’s Office for Civil Rights […]
Former Prosecutor (Now Judge) Arrested and Charged for Past Prosecutorial Misconduct
I’m told that such arrests and charges are very rare, so I thought this was noteworthy, from the Austin American-Statesman, April 19, 2013 (thanks to Lawrence Goldman [White Collar Crim Prof Blog] for the pointer): Former Williamson County District Attorney Ken Anderson was arrested … after a specially convened court found that he intentionally hid […]
Bleg on temporary of seizures firearms
I would be grateful if commenters could point to cases, statutes, or secondary materials which address these questions: In Terry stops, traffic stops, and other police encounters with individuals which do not involve an arrest, under what circumstances can a law enforcement officer temporarily detain a person’s firearm? For example, for officer safety during a […]
Prisoner Offshoring, or Gaolbalization
By Eugene Kontorovich on November 19, 2012 8:25 am in Constitutional Law, Criminal Procedure, Eighth Amendment, Global Governance/World Government, International Human Rights Law, International Law, Uncategorized
Belgium and the Netherlands have an interesting arrangement, an example of economics and incentives working clearly in the public law field. Belgium has more convicts than it can accomodate in its prisons. Neighboring Netherlands has the opposite problem: not enough prisoners. Several years ago, it was facing having to shutter some facilities. But then the […]
Does the Supremacy Clause mean that the federal government always wins?
By David Kopel on October 2, 2012 6:05 pm in Constitutional Law, Criminal Procedure, Federalism, Habeas, Supreme Court
Last week, I filed an amicus brief on behalf of petitions for certiorari in Chafee v. United States and Pleau v. United States. These related cases could be among the most important federalism cases before the Court this term. The amici are the Cato Institute and the Independence Institute. The State of Rhode Island and […]
Florida’s Self-Defense Laws
By David Kopel on March 27, 2012 11:59 pm in Crime Victims Rights, Criminal Law, Criminal Procedure, Guns, Self-Defense
Media coverage of Florida’s self-defense laws in recent weeks has often been very inaccurate. While some persons, particularly from the gun prohibition lobbies, have claimed that the Martin/Zimmerman case shows the danger of Florida’s “Stand your ground” law, that law is legally irrelevant to case. So let’s take a look at what the Florida laws […]
The Machinery of Criminal Justice #6: Equality, Vengeance, and Competence
By Stephanos Bibas (University of Pennsylvania), guest-blogging on March 16, 2012 10:57 pm in Crime Victims Rights, Criminal Law, Criminal Procedure
In the past week’s posts about my new book, I’ve sketched out some of the hidden costs of professionalizing our system and suggested ways in which we might deliberately slow down our speedy, impersonal assembly-line justice. This set of posts has focused on one aspect: giving victims larger roles. (The book offers an even more […]
The Machinery of Criminal Justice #5: Returning Power to the Public in a Lawyer-Driven System
By Stephanos Bibas (University of Pennsylvania), guest-blogging on March 16, 2012 11:04 am in Crime Victims Rights, Criminal Law, Criminal Procedure
In this week’s guest-blog posts on my new book, I’ve explored just a few of the ways in which our criminal justice machine has drifted far from its moral roots. Today I want to summarize the range of problems and offer just a couple of possible solutions, though the book goes into many more. Lawyers’ […]
The Machinery of Criminal Justice #4: Semi-Privatizing Criminal Justice
By Stephanos Bibas (University of Pennsylvania), guest-blogging on March 15, 2012 11:05 am in Crime Victims Rights, Criminal Law, Criminal Procedure
In yesterday’s guest-blog post on my new book, I explored the gulf between criminal-justice insiders and outsiders, the lawyers and laymen who see criminal justice very differently. The book explores in detail some of the human needs that criminal justice professionals overlook, such as the thirst for remorse, apology, forgiveness, and reconciliation. Today I’ll suggest […]
The Machinery of Criminal Justice: The Gulf Between Insiders and Outsiders, and Its Costs
By Stephanos Bibas (University of Pennsylvania), guest-blogging on March 14, 2012 10:43 am in Crime Victims Rights, Criminal Law, Criminal Procedure
In yesterday’s guest-blog post on my new book, I discussed some of the ways in which criminal justice developed from a common-sense morality play into a professionalized machine during the nineteenth and twentieth centuries. Now I want to describe what the gulf between criminal justice insiders and outsiders looks like today; offer a few examples […]
The Machinery of Criminal Justice: From Public Morality Play to Hidden Plea Bargaining Machine
By Stephanos Bibas (University of Pennsylvania), guest-blogging on March 13, 2012 9:22 am in Crime Victims Rights, Criminal Law, Criminal Procedure, History
In yesterday’s guest-blog post on my new book, The Machinery of Criminal Justice, I surveyed how colonial American criminal justice was public, participatory, informal, and run by laymen. To be clear in response to some comments, I did not imply that we should go back to Salem witch trials, let alone medieval European trial by […]