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In this review of Sara Mayeux's Free Justice, I argue that one cannot tell a history of public defense without interrogating the political, social, and legal status of Black and other nonwhite people charged with crime. Racism and white supremacy played prominent roles in the development of the criminal legal system and impacted the creation, scope, and trajectory of modern indigent defense. By applying a critical race lens to the history of indigent defense and the development of the right to counsel, my hope is to provide additional insight into why public defense has struggled to deliver justice to the accused. I also use it as a tool to suggest alternative ways to advance justice for poor people ensnarled in the criminal legal system. Mayeux focuses her account on elite corporate lawyers during the Progressive Era, their philanthropic efforts, and the legal profession’s changing identity. Free Justice unearths the legal profession’s dramatic shift in attitude toward public defense over the course of the twentieth century. Elite lawyers initially viewed public defense as akin to communism or as the socialization of the private bar, but by midcentury they regarded public defenders as exemplars of democracy and “the American way of life.” This dramatic shift, according to Mayeux, enabled most indigent defense delivery models to transition away from elite lawyers’ benevolence and ad hoc services to state financed public defender offices, legal aid societies, and nonprofits. In Part I, I identify a central tenet of critical race theory and apply it to Free Justice’s utopian framework and Progressive Era notions of criminal conduct, charity, and the legal profession. In Part II, I examine the post-Gideon fallout in under-resourced Black communities, the growth of mass criminalization, and ineffective assistance of counsel jurisprudence through a critical race lens. I conclude the review with thoughts on a different method of delivering justice to indigent people facing criminal charges.

The coronavirus pandemic has uprooted life as we know it. No institution is immune. As a result of the crisis, trials in every state (jury and bench, criminal and civil) have been continued until later dates. But must they be continued? Can they be constitutionally conducted over remote videoconferencing platforms like Zoom? And can they be conducted digitally even absent the consent of one (or both) parties? While due process concerns might render a digital jury trial unconstitutional in criminal cases, applying a balancing test to our current public health crisis weighs in favor of allowing videoconference jury trials in civil cases. In fact, a civil jury trial by Zoom might not only be permissible; it might also be necessary to actualize the Seventh Amendment's protections, especially if the COVID-19 pandemic continues longer than expected. If courts allow digital jury trials, the risk of certain pitfalls—such as the possibility of someone recording the proceedings—must be clearly communicated to the parties in advance. This paper will appear in an ABA book on online court procedures, set to be published at some point in the future.

This article deals with the difficulties that arise from the limited criminalization of domestic violence, in both substantive and procedural terms, by the criminal justice system. Thus, substantive law is weak in at least four respects: the law does not effectively define and punish domestic violence, enforcement provisions in the law are weak and ambiguous, the overall objectives of the substantive law are inconsistent, and the law does not give sufficient guidance to law enforcement agencies in their handling of incidents of domestic violence. In terms of the processes of criminal justice, the frailties are perhaps even more serious. Thus, there is a failure by the police in their law enforcement work to give sufficient weight to domestic violence cases—the police (public security personnel) often consider such cases to be ‘merely’ family matters. A second key weakness is that the provisions of Chinese criminal procedure provide only a very limited deterrence regime regarding domestic violence, as evidenced in the low prosecution rate, the fact that the overwhelming majority of prosecutions and convictions relate to physical forms of domestic violence (so that non-physical forms of domestic violence are basically in practice ignored in the criminal justice system), a less robust approach to police intervention as an instrument of deterrence in less developed areas, and inconsistent conviction and sentencing. Also, the police are not incentivised sufficiently to implement and to enforce the protection order system, perhaps most markedly so in the more underdeveloped areas of China. To a significant extent, this weakness reflects a performance appraisal system that prioritises detection work in what are regarded as more genuinely serious criminal cases. Important too in explaining the problem of limited police impact is the practice of pre-trial cooperation between the police, the procuracy and the courts. Here, the police definition of the situation prevails, with the agencies inclined to allow the police characterisation to prevail. So, in effect, law enforcement agencies combine to restrict access to gender justice.

Criminal procedure has long set a boundary between public and private in criminal enforcement: generally speaking, enforcement decisions at the post-charging stage are exposed to some degree of public view, while those at the pre-charging stage remain almost entirely secret. The allocation of public and private is, at heart, an allocation of power — and the current allocation is a relic. When private prosecutors were the mainstay of criminal enforcement, public court processes effectively constrained them. But those processes do little to constrain the spaces where enforcement power today resides: in decisions by the servants of a state-run, professionalized enforcement apparatus on whether to investigate, to charge, or to decline charges. This Article challenges criminal procedure’s centuries-old boundary between public and private in criminal enforcement. It argues that the justifications for the boundary are outdated and overstated, and the costs under-noticed. The public/private boundary has served to skew enforcers’ incentives; impoverish insight into enforcement patterns and their causes; weaken traditional channels of accountability (judicial, electoral and internal); and erode public trust. The Article reimagines a new boundary for our time, one that strengthens secrecy in some respects while relaxing it in others, and enables robust oversight of necessarily secret processes. More fundamentally, the Article is a call to center the public/private boundary in accounts of power in the criminal process.

The paper deals with the principle of the speed of proceedings and the right to an adequate length of the proceedings. In the paper presented, attention is paid at first to the legal framework at both European and national levels, approach of the European Court of Human Rights to assessment of an inadequate length of criminal proceedings, followed by the principle of the speed of criminal proceedings in the Code of Criminal Procedure – its position in the system of fundamental principles, and to selected amendments whose aim was to accelerate criminal proceedings. Great attention is paid to individual provisions of the Czech Code of Criminal Procedure which should contribute to fast and effective criminal proceedings.

This book is designed to introduce students to the key principles of U.S. law and is a survey of the first-year J.D. curriculum at U.S. law schools. The book focuses on basic foundational subjects: constitutional law, civil procedure, contracts, torts, property, criminal law, legal ethics, and legal research, each in separate topics. The editor has built this book based on the following open-source textbooks, selecting and editing to suit the editor’s pedagogical priorities. Beau Steenken & Tina Brooks, Sources of American Law: an Introduction to Legal Research Brian L. Frye & Elizabeth Schiller, Professional Responsibility: An Open-Source Casebook Ruthann Robson, First Amendment: Cases, Controversies, and Contexts Ruthann Robson, Cases, Controversies, and Contexts in Constitutional Law Stephen Clowney, James Grimmelmann, Michael Grynberg, Jeremy Sheff & Rebecca Tushnet, Open-Source Property: A Free Casebook Scott J. Burnham & Cristen Juras, Sales and Leases: A Problem-based Approach Roger C. Park & Douglas D. McFarland, Computer-Aided Exercises in Civil Procedure Eric E. Johnson, Torts: Cases and Context, Volumes One & Two Ben Trachtenberg & Anne Alexander, Criminal Procedure: A Free Law School Casebook

In the article the author examines the forensic aspects of attracting a specialist for the implementation of international cooperation in the fight against crime, as a result of which the author comes to the appropriate conclusions of both theoretical and applied nature.

Spanish Abstract: El articulo analiza las voces “denuncia” y “delito”, estableciendo su conceptualizacion, tipologias y caracteristicas, como tambien sus cambios y continuidades en el tiempo. La denuncia fue una de las formas mediante las cuales se podia iniciar un proceso canonico penal en el Antiguo Regimen, cuya relevancia provino de su finalidad correctiva y por ser la formula que mas utilizaron los indigenas en el Nuevo Mundo para iniciar procedimientos penales. La denuncia podia ser judicial, es decir, la presentada ante el juez competente que tenia por finalidad satisfacer la felicidad publica. Asimismo, podia ser extrajudicial. En este ultimo caso, se trataba de la advertencia caritativa, que era realizada por un agente denunciante, con miras a corregir privadamente al hechor de la conducta delictuosa. Lo anterior es fundamental puesto que es lo que distinguio a la denuncia de las otras formas con las que se iniciaban los procesos penales canonicos y sus efectos juridicos. Asi, no todo delito denunciado implicaba una pena publica, diferenciandose de los delitos que se acusaban. Respecto a la voz “delito”, este articulo, a base de la casuistica de los foros de justicia, del arbitrio judicial y la opinion de los juristas delimita que practicas fueron consideradas transgresoras del orden, y por tanto delitos. A partir de su delimitacion, se ha realizado su tipologia, como tambien, se han establecido las penas o castigos que se aplicaron. English Abstract: The article analyzes the terms “complaint” and “felony” (or “crime”) establishing their conceptualization, typologies and characteristics, as well as their changes and continuities over time. In early modern times, the complaint was one of the ways in which criminal procedure in canon law could begin; its relevance resulted from its corrective purpose and from the fact that it was the formula most widely used by indigenous people in the New World to initiate criminal proceedings. The complaint could be judicial, that is, filed before the competent judge whose purpose was to satisfy public happiness. Likewise, a complaint could be extrajudicial. In this latter case, it was a charitable warning, made by a complainant agent, who aimed to privately correct the perpetrator of the criminal conduct. This aspect is fundamental since it distinguished the complaint from other ways to initiate canonical criminal trials and their legal effects. So not every felony reported entailed a public penalty, distinguishing itself from the crimes that were reported. Regarding the voice “felony”, this article, based on the casuistry of justice forums, judicial discretion and the opinion of the jurists, defines what practices were considered transgressions of order, and therefore felonies. From its delimitation, a typology of felonies has been developed, as well as the penalties or punishments that were applied have been established.

The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood. Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The COVID–19 pandemic rendered most physical jury trials unworkable but spurred some courts to begin using technology to transcend time-and-place limitations. These reforms inspire more profound changes. Rather than abolishing or cabining the jury trial, it should be reinvented with the benefit of modern science and technology. Features to be reconsidered include having local juries even for national civil cases, using unrepresentative groups of only six to twelve jurors, allowing attorneys to arbitrarily exclude jurors during voir dire, having synchronous and chronological presentations of cases over days or weeks, asking jurors to ignore inadmissible evidence and arguments that arise during live trials, and relying on secretive deliberations infected by implicit bias. Several of these extant practices work to disenfranchise or disempower Americans along racial, gender, and economic lines, thereby undermining one of the jury’s core functions. Other features cause jurors to err in resolving cases accurately, which can sometimes mean the difference between life and death. A reinvented, modernized jury institution can better serve its purposes by increasing citizen engagement, better fostering civic education and democratic deliberation, improving accuracy.

Bob Dylan wrote the song Hurricane to draw the public’s attention to the conviction of the boxer, Rubin “Hurricane” Carter, for a crime (multiple murders) which Carter did not commit. Dylan’s song – and its performance as a part of Dylan’s fabled Rolling Thunder Tour – brought significant public attention to this case (and the miscarriage of justice it reflected), and eventually led to the granting of federal habeas corpus (a decision affirmed by the Third Circuit) and the freeing of Carter from state prison in New Jersey. The song takes the listener from the facts of the crime, through the back story of Carter as an individual, through the trial and conviction. In an earlier article about Bob Dylan’s jurisprudence, I wrote that this song “is a textbook example of how racism can affect every aspect of the criminal justice system,” listing nine legal issues that Dylan discusses in the lyrics. See Michael L. Perlin, Tangled Up in Law: The Jurisprudence of Bob Dylan, 38 FORD. URB. L.J. 1395, 1405-07 (2011). In this article, I conclude that the lyrics of this song would provide the basis for a perfect examination question in Criminal Procedure (a course I taught for about 15 years), or perhaps, even, the core of a course in Criminal Procedure. In this paper, first, I briefly discuss the song, and the significance of its live performances in the 1970s. After this, I reprint the song’s lyrics. Then, I discuss the opinion that granted habeas corpus, and the Third Circuit opinion substantially affirming it. Next, I consider all the criminal procedure issues raised by the song, in a section in which I look at (1) “the law,” (2) Dylan’s characterization of the issues in question, and (3) as best as I can, the “inside baseball” on what actually happened (drawing on reported cases, transcript excerpts and other scholarship). Following this, I discuss the cases briefly in the context of the legal school of thought known as therapeutic jurisprudence. I conclude with some final thoughts on the consonance between Dylan’s jurisprudential and political values and the values I seek to assert in my writings.

“Restorative justice” focuses on the rehabilitation of offenders through reconciliation with victims, and with the community at large. It has gained momentum as a justice reform movement in Western countries within the past three decades, and it is estimated that up to one hundred countries worldwide utilize restorative justice practices. In India, study has found that dispute resolution outside the formal court system was effective since time immemorial in some form or other. The present system of court annexed settlement as well as outside court settlement provides a golden opportunity to the disputant to resolve their dispute through the mechanism best suited to them. Such plenty of mechanism which have the components of restorative justice help a large number of parties to settle their disputes outside court. Restorative justice provides a large number of advantages in comparison to the adjudicatory processes, such as speedy disposal, cost effectiveness, maintenance of good relationship and chances of continuity of relationship, less formality, more compliance etc. In different parts of the world, people started using restorative justice system within criminal Justice System in different ways, such as plea bargaining, Victim-Offender Mediation, out of court settlement etc. Benefits obtained by such processes in other jurisdictions have compelled our legislature to use it within the Indian Criminal Justice System. The result of such incorporation of different processes within criminal justice is emergence of ‘Plea Bargaining’ within criminal procedure. Moreover, since the beginning of the criminal procedure in India there were provisions which could have been instrumental for using restorative justice within CJS such as compounding of offence, withdrawing from prosecution etc. Thus the study shows that out of court settlement within criminal justice system was not alien in India.In sui generis Plea Bargaining process victims get rights to decide about the case, participate in the process along with other stake holders and if their aspirations are fulfilled settled the case by virtue of ‘mutually satisfactory disposition.

On 31 March 2021, the Appeals Chamber of the International Criminal Court (“ICC”) delivered its judgment in the Prosecutor’s appeal against the decision of Trial Chamber I of 15 January 2019 (with reasons issued on 16 July 2019), wherein the Trial Chamber acquitted Mr Laurent Gbagbo and Mr Charles Ble Goude of all charges. The Appeals Chamber found no error that could have materially affected the decision of the Trial Chamber in relation to both of the Prosecutor’s grounds of appeal. Therefore, the Appeals Chamber rejected the Prosecutor’s appeal and confirmed the decision of the Trial Chamber. In this conversation, Giovanni Chiarini interviews Cuno Jakob Tarfusser – former Judge and Second Vice-President of the ICC – on two of the many fragile points that emerge from this appeal judgment, such as the method of judicial interpretation regarding the procedural rules. Specifically, they focus on: 1) the interpretation of “no case to answer”; and 2) the interpretation of the burden of proof. At the end of this short conversation, we could definitely agree that the manner of judicial interpretation of the procedural rules should strictly conform to the legal framework of the Court. Otherwise, an increasingly intricate and unforeseeable procedure emerges, based on an almost arbitrary discretion of the judges.

American law should better protect people’s bodies from being caged than it should protect people’s money. And yet in so many ways it does the opposite. Instead of calibrating protections for defendants to the importance of the interest at stake, disparities between pretrial protections in federal civil and criminal procedure instead track differences in race and class between defendants in the two systems. Criminal defendants, for instance, can be locked in cages for two days on a mere accusation by police before a magistrate considers the validity of that deprivation. Civil defendants, by contrast, typically cannot be deprived of their property without first having a judge hear their arguments. Criminal defendants sometimes do not learn about the government’s evidence until the eve of or during trial—a trial that comes in scant few cases. Civil defendants would never be forced into such a trial by surprise but rather have numerous tools of formal discovery to compel evidence from the opposing party throughout the pretrial period. This Article argues that comparing federal criminal procedure to federal civil procedure across several substantive areas provides new and valuable insight into the systemic racism and classism woven into the fabric of U.S. law. Criminal defendants are disproportionately poor people of color, while civil defendants are often wealthy corporations whose executives are largely White; those wealthy civil defendants play an outsized role in developing civil procedure. Trials are scarce in both civil and criminal procedure. But civil procedure—where wealthy White defendants are disproportionately powerful—offers significant pretrial protection for defendants that reduced the prevalence of trials. Criminal law has also made trials largely disappear but not by affording procedural protections to defendants. Rather, criminal law made going to trial much too risky for defendants. Nonetheless, instead of recognizing the lack of trials and shifting procedural protections pretrial, criminal law continues to rest its faith on mythological trials to protect defendants’ rights.

The Sixth Amendment criminal jury right is integral to the United States criminal justice system. While this right is also implicated by the Due Process Clause, Equal Protection Clause, and several federal and state statutes, criminal jury trial rates have been declining for decades, down from approximately 20% to 2% between 1988 to 2018. This dramatic drop in the rate of criminal jury trials is an effective measure of the decreased access to fair and constitutional criminal jury trials. Prior to the pandemic, critics generally ascribed the decline in criminal jury trials to two sources, first the “trial penalty,”—the substantial difference between the sentence offered prior to trial versus the sentence the defendant receives after trial—and second, the unfettered abuse of the Speedy Trial Act by prosecutors, defense attorneys, and judges. Both of these sources have had the effect of pressuring criminal defendants to plea or otherwise delaying the accused’s ability to obtain a jury trial. The COVID-19 pandemic caused national criminal jury trial rates to plummet further, with some states or jurisdictions nearing or reaching zero. Several courts throughout the country contemplated or implemented procedures to continue conducting criminal jury trials, including trials that were (1) socially distanced and in-person; (2) conducted by video conference technology; or (3) a hybrid model of video conference jury selection with socially-distanced/in-person trial. This Article argues that the pandemic served as a type of stress test, revealing the inability of the criminal justice system to ensure the criminal jury right. Thus, the pre-pandemic problems, even if eliminated, will not solve the Sixth Amendment problems presented during the pandemic environment. The Article also argues that pandemic solutions to increasing criminal jury trial rates, while noble in intention, still likely force the accused to either waive his Sixth Amendment rights or choose the speedy trial right at the expense of the confrontation right or jury right, potentially causing prosecutors and defense attorneys to shirk their ethical obligations to seek justice or zealously represent their clients. Furthermore, because the Supreme Court’s rejection of a “functionalist assessment” of Sixth Amendment rights in Ramos v. Louisiana likely calls into question the constitutionality of such measures, greater action is needed to ensure a pandemic-proof criminal jury right. Indeed, while the vaccine may be a cure for the virus, it is not a cure for the problems it caused to our criminal justice system. Accordingly, to ensure a pandemic-proof criminal jury right, Congress should enact measures to end the trial penalty, provide courts and parties with a meaningful ability to enforce the Speedy Trial Act, and most importantly, amend the Constitution to create a criminal jury right that allows courts to conduct jury trials via video conference.

This chapter introduces our new book, JUSTICE OUTSOURCED: THE THERAPEUTIC JURISPRUDENCE IMPLICATIONS OF JUDICIAL DECISION-MAKING BY NON-JUDICIAL OFFICERS (Temple University Press) (2021). In it, we explain what led us to write this book, and how it focuses on a topic so far not discussed in the legal or criminological literature: the omnipresent use of non-judicial officers to make decisions in all aspects of the criminal justice system, and the implications of this use from the perspective of therapeutic jurisprudence, the ultimate aim of which is to determine whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. Essays in this book – by practicing lawyers, law professors, criminologists, sociologists and psychologists -- deal with non-judicial officers in the courtroom, with such officers in administrative settings, with ethical and practical considerations in the use of non-judicial officers, and the issues related to the use of such individuals from the perspective of a trial judge. it includes chapters on correctional law, immigration law, divorce law, criminal law and procedure, mental disability law, problem-solving courts, and other relates aspects of law and society. We hope that this book will lead to a greater understanding of this hidden aspect of the law, and why, on a daily basis, we -- giving this decision little or no thought --outsource important justice decision-making.

In this article, the author examines issues related to the introduction and safety of material evidence in criminal procedural activities. In conclusion, the author substantiates the conclusion that material evidence may not be any objects, but only those that are attached to the materials of the criminal case in accordance with the procedure established by the criminal procedure law.

Turkish Abstract: Cumhurbaskanligi kararnameleri ne tur bir yasal duzenlemedir, herhangi bir duzenleme biciminin icine dahil edilebilir mi, yoksa tek basina ayri bir tur mudur, daha da onemlisi bu kararnamelerle getirilen kurallarin niteligi nedir? Cumhurbaskani, hangi konularda kararname cikarma suretiyle duzenlemeler getirebilir, belli bir siniri ve kapsami var midir, yoksa istedigi her alanda bu yolla duzenleme yapabilir mi? Cumhurbaskaninin cikardigi kararnamelerin yururluge girmesi icin baska bir organ veya makam tarafindan denetlenmek veya onaylanmak uzere herhangi bir asama ongorulmus mudur, yoksa cumhurbaskaninin cikarmasi ve yayinlamasi bu duzenlemelerin yururluge girerek hukum dogurmasi icin yeterli midir? Cumhurbaskani kararnameleri ile getirilen kurallara mutlak surette uyulmali midir, haklarinin zarar gordugu iddiasinda olanlar veya ilgililer tarafindan yargi yoluna basvurulabilir mi? Son olarak, kararname hukumlerine uymasi gereken kisilerin bu yukumlulugu yerine getirmemesinin herhangi bir yaptirimi var midir? Goruldugu gibi, her ne kadar Anayasa degisikligiyle bu yeni duzenleme turu resmen getirilmis olsa da, esasen bu husus acikliga kavusturulmus degildir; aksine bununla beraber bircok soru isareti, belirsizlik iceren noktalar ve tartisma konulari da getirilmistir. Iste bu makalede Anayasa hukuku esaslarindan yola cikarak cumhurbaskanligi kararnamelerinin niteligi, kapsam ve sinirlari ve bunlara karsi basvurulabilecek hukuki yollarin var olup olmadigina iliskin aciklamalarda bulunmaya calisacagim. Ayrica bizim acimizdan onemli olan bu kararnamelerle ceza hukuku ve ceza muhakemesi hukuku acisindan duzenleme yapilip yapilamayacagi konusunu ele alacagim. Bundan sonra kararname hukumlerine uyulmamasi halinde bunun ceza hukuku ve ceza muhakemesi hukuku acisindan herhangi bir yaptirima tabi olup olamayacagini yanitlamaya calisacagim. English Abstract: What kind of legal regulation are presidential decrees, can they be included in any form of regulation, or are they a separate type alone, more importantly, what is the nature of the rules introduced by these decrees? Can the President make regulations by issuing decrees, does it have a certain limit and scope, or can he make arrangements in every field he wants? Is there any stage for the decree issued by the President to be inspected or approved by another body or authority, or is it sufficient for the president to issue and publish these regulations to come into force and take effect? Should the rules introduced by the decrees of the President be obeyed in absolute terms, can those who claim that their rights are harmed or be resorted to by those concerned? Finally, are there any sanctions for those who must comply with the provisions of the decree for not fulfilling this obligation? As can be seen, although this new type of regulation has been officially introduced with the Constitutional amendment, this issue has not been clarified; On the contrary, many question marks, ambiguity points and discussion topics have also been introduced. Here in this article, I will try to explain the nature, scope and limits of presidential decrees based on the principles of constitutional law and whether there are legal remedies to be applied against them. I will also discuss the issue of whether regulations can be made in terms of criminal law and criminal procedure law with these decrees, which are important to us. From now on, I will try to answer whether it is subject to any sanctions in terms of criminal law and criminal procedure law if the provisions of the decree are not followed.

Cop shows originated as a literal “copoganda” effort: explicit partnerships with law enforcement agencies to transform the image of bumbling Keystone Cops into straight arrow Sergeant Joe Friday and lovable Andy Griffith. Though the explicit partnerships have faded away, the template they established has flourished, in part by adapting to changed times without challenging certain basic cop show verities — principally, the centrality of the police point of view. Police use of force, even when mistaken, is framed as essential, understandable, or forgivable: an act taken in the righteous pursuit of justice. These depictions matter. Portrayals of policing on TV — including fictional portrayals — exert enormous influence on public perceptions of how policing works and help shape both law and public policy. Part I traces the origins of the cop show. Part II illustrates how cop shows construct and transmit social norms that humanize and valorize law enforcement — both the job and those who do it. Part III considers the question of what constitutes police brutality. It concludes that cop shows fall short in depicting police brutality both in its narrower definition: action taken to degrade and dehumanize, and in its broader definition: the use of excessive force. Part IV explores the mechanisms by which police brutality and the harms it visits on people and communities are erased. Finally, Part V asks whether cop shows can do better. The chapter concludes that the failures of the genre to grapple with accountability and reform are not baked into the medium. The field is rife with possibilities for expanding the universe of empathic engagement, and for illustrating both the harms of police violence and the difficult tradeoffs inherent in the effort to reimagine public safety.

A young defense attorney earns his client, charged in federal court with bank robbery, a jury acquittal. (It’s the attorney’s first.) One would expect the ‘impartial’ judge to thank the jury for its service. Instead, this one harangues both jury and defense attorney (“entailing changes in his complexion from red to purple to dead white”), publicly rails against the verdict, attempts to bar the jurors from service for life, refuses to release the defendant, and prods prosecutors to bring a duplicative state prosecution that would end in conviction for the same crime. To anyone who respects the rule of law—or at the very least to anyone who respects the American jury—this should be deeply troubling. Yet when it took place in a Chicago federal courtroom in December 1953, state prosecutors leapt at the federal judge’s call. And when the appeal of the duplicative state prosecution reached the United States Supreme Court, the defendant lost 5-4. Criminal practitioners know that result as Bartkus v. Illinois, 359 U.S. 121 (1959), a rule of double-jeopardy ‘dual sovereignty’ that the Court reaffirmed in 2019. But next to nobody appreciates how it began in that Chicago federal courtroom. That history comes to life in the unpublished notes of the remarkable defense lawyer. It is a story that underscores just how wrongheaded is the legal rule, and that makes vivid the abuse of judicial power.

This article focuses on the exceptional mildness of criminal punishments for alleged traitors in the wake of the American Revolution. American leaders were disinclined to inflict the death penalty on loyalists who supported British rule in the revolutionary war or on insurgents in the Shays, Whiskey, and Fries rebellions shortly after independence. In fact, the Founding Fathers and other first-generation officials commonly showed remarkable mercy. Numerous “traitors” readily rehabilitated themselves by recognizing their faults, swearing an oath of allegiance to the new American republic, and promising to refrain from further wrongdoing. These revolutionary punishments were a striking prefiguration of modern penal practices: guilty pleas, probation sentences, and rehabilitation policies aiming to reintegrate wrongdoers into society. While American revolutionary punishments comprised stark racial inequities and did not constitute a lost utopia, they were particularly mild for the period. In contrast, the contemporary French Revolution led to wide-scale executions of purported traitors. Besides shedding light on historic events that criminal justice scholars have neglected, the article’s findings are relevant to ongoing debates about American exceptionalism and the peculiar harshness of modern American justice, including originalist and non-originalist interpretations of the Eighth Amendment. The rise of mass incarceration in the United States and its retention of the death penalty can foster cultural essentialism about how American culture traditionally lacks humanistic sensibilities. In reality, the revolutionary criminal punishments of the late eighteenth century demonstrate how America was once a trailblazer in embracing humane conceptions of justice.

The right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment. One simple change could situate the jury where it belongs, at the center of the criminal process. The most important thing juries do in criminal cases is authorize state punishment. But today, when a jury returns a guilty verdict, it authorizes punishment without any idea of what is in store for the defendant. This principle of jury ignorance is a profound mistake. It is unmoored from history and the core function of the jury to authorize punishment. Worse, it exacerbates the criminal legal system’s predilection for excessive severity. This Article offers and defends a proposal to replace ignorant juries with informed ones, by requiring juries to be told of the statutory minimum and maximum punishment in every case before being asked to return a conviction. Informed juries would change the dynamics of criminal justice for the better. In individual cases, punishment information would make juries more careful before convicting and would sometimes lead juries to refuse to convict where punishment would be excessive and unjust. But more importantly, informed juries would provide systemic benefits. Requiring informed juries would set in motion a political feedback loop that would counteract existing incentives for legislators and prosecutors to prefer severity. In addition to being good policy, there are powerful arguments that informed juries deserve to be recognized as part of the constitutional jury-trial right.

22 July 1991 to 21 August 1995, and 21 August 1995 to present by Transitional Charter and Federal Democratic Republic of Ethiopia (FDRE) constitution respectively, Ethiopia adopted federal system and structured the regions along ethnic lines. And Oromia Regional State (ORS) is the most populous and the largest region in Ethiopia. Until 2007, the relationship between prosecutors and police as well as prosecutors’ and police’s institutions over criminal investigation in Ethiopia and in all its regional states has been mainly governed by Ethiopian criminal procedure code of 1961 (CPC of 1961) for more than four decades. This code and some piecemeal legislations had empowered police to investigate the commission of crimes independently and pass over the report to the prosecutors, while prosecutors were empowered, on receiving the report, either to instruct for re-investigation, close or institute charge against the suspect(s). However, ensuing the Ethiopian justice system reform baseline study that had conducted from 2003 – 2005, implementing the studied reform and/or overhaul the noticed gaps using Business Process Reengineering (BPR) as an instrument was started in 2007, particularly in ORS. As per this BPR, prosecutors and police had been adjusted to carryout criminal investigation together in team. To legalize BPR, at ORS level, proclamation No. 132 of 2007 was issued by Caffee (parliament) Oromia. Though this proclamation was repealed, those proclamations enacted after it, to govern the issue under consideration, follow similar approach – make criminal investigation the responsibility of prosecutors and police team. Now, it is proclamation No.213 of 2018, proclamation No.214 of 2018 and CPC of 1961 that are serving as adhesive for police and prosecutors to carryout criminal investigation together in team in ORS. Nonetheless, from its inception to today, criminal investigation team of prosecutors and police in ORS is full of tension. This tension affected and is affecting the administration of criminal justice system in ORS. This writer argues legal insufficiency is a primary reason for the tension in the prosecutors and the police liaison for criminal investigation. Yet, the insufficiency discourse of these laws should have gotten attention but lacked it. Though scanty, this essay purports to get out the insufficiency of laws that are governing prosecutors and police liaison for criminal investigation in the ORS, and try to recommend measures to be taken to avoid and smooth the relationship between police and prosecutors in the region.

After the eight minute and forty-six second video of George Floyd’s murder went viral, cities across the country erupted in mass protests with people outraged by the death of another Black person at the hands of police. The streets were flooded for months with activists and community members of all races marching, screaming, and demonstrating against police brutality and for racial justice. Police – like warriors against enemy forces – confronted overwhelmingly peaceful protesters with militarized violence and force. Ultimately, racial justice protesters and members of the media brought lawsuits under Section 1983 of the Civil Rights Act in the district courts of Minneapolis, Dallas, Oakland, Seattle, Portland, Denver, Chicago, Los Angeles, and Indianapolis, claiming extreme violence and unlawful and abusive use of less lethal weapons by police during protests. The first part of the article provides a recent history of this police brutality against racial justice activists in the George Floyd protests. The second part of this article discusses how courts currently evaluate, in § 1983 actions, the Fourth Amendment reasonableness of police force pursuant to Graham v. Connor by reviewing circuit court opinions in protest cases from the last three decades and district court injunctions from the George Floyd protest litigation. This part demonstrates that in their Fourth Amendment reasonableness calculus, courts discount plaintiffs’ involvement in valuable politically expressive conduct. The third part of this article argues that the Fourth Amendment mandates that courts evaluate the reasonableness of protest policing in light of freedom of expression which means they must positively weigh plaintiffs’ expressive protest activity. This reframing of reasonableness is supported by historical evidence of the framer’s intent and the Supreme Court jurisprudence on searches of books, papers, and other expressive materials when such items arguably deserve First Amendment protection. The fourth part discusses the difference an expression-specific Fourth Amendment – the expressive Fourth Amendment – reasonableness test would have made in a protest case.

This Article addresses the need to recognize a property-based right in personal data and to limit the amount of personal information that can be lawfully collected about individuals online. The Fourth Amendment, protecting “persons, houses, papers, and effects” from unreasonable searches must be interpreted to ensure privacy for personal data. The evolving nature of data privacy protections and global data privacy standards emphasizes the necessity to develop clear standards and statutes to protect an individual’s interest in their personal data. Statutes such as the E.U.’s GDPR and California’s CCPA, provide a regulatory framework on how to approach data privacy on the federal level. Using a property-based approach to “effects” and personal data can provide a significant resurgence and revolution in protecting individual privacy. Expanding this privacy right through a legislative approach and the ‘mere evidence’ rule will reform the convoluted ‘reasonable expectation of privacy’ framework outlined in Katz v. United States and its progeny.

Turkish Abstract: Uzun bir sureden beri meclis acildigi zaman ceza surelerinden indirim yapilmasini ongoren bir kanun teklifinin, baska bir ifadeyle bir “af” teklifinin meclise sunulacagi konusulmaktaydi. Nitekim teklifi sunacak olan parti konumundaki MHP baskan yardimcilari ve sozculeri de bu yonde aciklamalar yapmaktaydi. Soz konusu teklif, yedi maddelik bir icerik ve “Bazi Suclarla Ilgili Ceza Surelerinden Sartli Indirim Ile Tutuklu ve Hukumlulerin Saliverilmesine Dair Kanun Teklifi” ismiyle beklenildigi gibi MHP tarafindan 24 Eylul 2018 tarihinde TBMM Baskanligi’na sunuldu. Teklif, sunulmasindan once de tam olarak nasil bir icerige sahip olacagi ve hangi suclari kapsamina alacagi gibi bircok konuda ceza hukukculari arasinda buyuk bir endiseyle beklenmekle beraber, sunulduktan sonra daha da buyuk bir endise yaratmis ve ozellikle kapsam ve icerigine iliskin ciddi elestirilerle karsilasmistir. Mevcut toplumsal ihtiyaclar bu sekilde bir duzenlemeye gidilmesini gerektirmekte midir? Teklifin sunulmasi toplumsal ihtiyaclara mi yoksa siyasi sebeplere mi dayanmaktadir, amaci nedir? Esas olarak ceza surelerinde indirim yapilmasini ongoren Teklif, af niteliginde kabul edilebilir mi? Hangi suclar kapsam altina dahil edilmistir, bunun icin herhangi somut bir kriter belirlenmis midir? Teklifin yasalasmasi icin hangi sartlarin gerceklesmesi gerekir? Yasalasmasi ihtimalinde nasil sonuclar dogacaktir? Konunun Anayasa Mahkemesi’ne anayasaya aykirilik iddiasiyla tasinmasi mumkun mudur? Mahkeme, soz konusu duzenlemeyi iptal edebilir mi? Goruldugu gibi bircok noktada ciddi sorular ortaya cikmaktadir. Bu yazimda ozellikle belirtilen hususlari goz onunde bulundurarak Teklif’in ceza ve ceza muhakemesi hukuku normlariyla olan iliskisi ile bu normlara uygunluguna iliskin tespit ve aciklamalarda bulunarak hukuka uygunluk degerlendirmesinde bulunacagim. English Abstract: For a long time, when the parliament was opened, it was talked that a law proposal, in other words, an "amnesty" proposal, which required a reduction in penalties, would be submitted to the parliament. As a matter of fact, MHP vice presidents and spokespersons, who are the party that will present the proposal, were making statements in this direction. The said proposal was submitted to the Presidency of the TGNA by the MHP on September 24, 2018, as expected, with a content of seven articles and the name "Proposal for the Release of Prisoners and Convicts with Conditional Reduction from Penalties Related to Certain Crimes". Although the proposal was anticipated with great concern among criminal lawyers on many issues, such as exactly what content it would contain and what crimes it would cover before its submission, it created even greater concern after its submission and was met with serious criticism, especially regarding its scope and content. Do current social needs require such a regulation? Is the submission of the proposal based on social or political reasons, what is its purpose? Could the proposal, which mainly provides for a reduction in penalty periods, be accepted as an amnesty? Which crimes are covered, have any concrete criteria been set for this? What conditions must be met for the proposal to become law? What kind of consequences will occur in the possibility of enacting law? Is it possible to bring the issue to the Constitutional Court with the allegation of unconstitutionality? Can the court cancel the regulation in question? As can be seen, serious questions arise at many points. In this article, I will make determinations and explanations regarding the relation of the Proposal with the norms of criminal and criminal procedure law and its compliance with these norms, taking into account the matters specified in particular in this article.

There is little law and even less law enforcement in Martinaise—a fictional district of a fictional city on a fictional archipelago in which a fictional video game, Disco Elysium, is set. This Essay is about what Disco Elyisum’s narrative and gameplay reveal about the nature of law, the effects of its absence, and the challenges associated with transforming an illegitimate legal system. This is not the first essay to consider what a video game has to say about jurisprudence. But I break new ground by bringing video-game-inspired insights about law to bear on a particular criminal legal system: that of the United States. Specifically, I compare and contrast the limitations of law in Disco Elysium and the game’s pessimism about the prospects of systemic change within its fictional world, on the one hand; and the limitations of the U.S. criminal legal system and ongoing, radically optimistic efforts to transform—even abolish—the latter, on the other. Like that of Martinaise, the criminal legal system of the U.S. often fails to meaningfully constrain state power and suffers from crippling democratic deficits. But the U.S. is the site of emergent social movements that are committed to participatory and inclusive democracy, and is structured by a constitution that has inspired and empowered people to contest state power throughout U.S. history. In its very pessimism about the prospects of legal transformation in its own world, Disco Elysium encourages optimism about radical change in ours.

Issues often arise when a defendant or witness in a civil or criminal case assert their Fifth Amendment right to be free from self-incrimination when asked to unlock their smartphone. A substantial disagreement has arisen in state and federal courts across the nation as to the extent of the Fifth Amendment's protection of secured smartphones. Two major issues arising from Fifth Amendment jurisprudence are involved in judicial considerations of this issue: whether the communication of the passcode is "testimonial" and, if it is, whether it can be allowed under the "foregone conclusion" doctrine. Additionally, the application of law in these areas has differed between cases involving biometric authentication and passcode authentication methods. This article addresses the differing case law in these areas, and makes an argument that the fifth amendment should be an absolute bar to forcing individuals to unlock their devices. Instead, the government should use the multitude of tools businesses offer to gain access to encrypted information.

Russian abstract: Судебная система, а также уголовно-процессуальная и уголовная системы требуют постоянного внесения коррективов, соблюдая при этом высшие стандарты равенства и справедливости в интересах защиты личности, общества и государства от преступлений, чтобы каждый совершивший преступление был наказан в меру своей вины и ни один невиновный не был привлечен к уголовной ответственности и осужден. В целях реализации этого требования судебные органы должны соблюдать правовую норму, а также определенные прагматические требования, обеспечивая справедливость судебного разбирательства. Однако, законодательство не всегда содержит совершенную нормативно-правовую базу, даже при внесении изменений в законодательстве в этом направлении, становясь более ясным, а существующие модели в рамках уголовного процесса не справляются с феноменами, которые следует контролировать. Для разрешения данной ситуации целесообразно было бы ориентироваться к конвергенции законодательной системы в применении опыта и институтов, которые предлагают реальные гарантии. English abstract: Judicial system in general and criminal procedure and penal system, in particular, require continuous adjustments, observing high standards of fairness and justice, in order to protect the individuals, society and State against crimes, in a way that every person who committed an offense shall be punished according to his guilt and no innocent person will be held criminally liable and sentenced. In achieving this requirement, the judiciary must strongly respect the legal rule and certain justified pragmatic requirements of ensuring a fair trial. But since the adopted legislation not always provides a perfect regulatory framework, it becomes clearer that the existing models within the penal process can not face anymore the criminal phenomena which are to be monitored. However, a viable issue in overcoming this situation can be a continuous movement towards a convergence of legal systems by borrowing those institutions and practices that provide effective guarantees in this respect.

The article deals with the problems of law enforcement of the new rules for the production of investigative actions aimed at the seizure of electronic media and copying computer information. The author aims to consider the legal structure of the provisions of Article 1641 of the Code of Criminal Procedure of the Russian Federation, which, upon careful analysis, were not devoid of certain technical omissions in their design.

In this article the author draws attention to specific grounds, the occurrence of which is directly related to the fact of compensation for the damage caused by the crime (reconciliation of the parties; the assignment of criminal law measures in the form of a court fine; active repentance; termination of criminal proceedings in connection with compensation for damages), as well as the possibility of termination of the criminal case (criminal prosecution) in proving these facts.

My article “Harmless Errors and Substantial Rights” challenged conventional wisdom about the harmless constitutional error doctrine in criminal procedure. Specifically, I contended that the traditional way of understanding harmless error as a remedial doctrine rooted in so-called “constitutional common law” created significant anomalies. Instead, harmless constitutional error doctrine can only be understood as part of the definition and judicial enforcement of constitutional rights. Few legal scholars have thought as deeply about the mysteries of harmless error as Professor John M. Greabe, and he is well equipped to give the remedial perspective the best possible defense. Nonetheless, despite Professor Greabe’s able efforts in his response piece “Criminal Procedure Rights and Harmless Error: A Response to Professor Epps,” I remain persuaded of the correctness of the rights-based approach to harmless error laid out in my article. In this short Reply, I explain why. First, I respond to Professor Greabe’s most significant criticisms of my rights-based approach, and show why I think they miss the mark. Second, I explain why Professor Greabe’s own remedy-based theory is itself problematic and unable to solve the enduring riddles of harmless error.

In the backdrop of India's problematic record with internet shutdowns, this article undertakes a comprehensive analysis of the validity of internet shutdown orders vis-a-vis the right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Indian Constitution. To this end, shutdown orders are separately assessed under the three fundamental requirements of Article 19(2) which exhaustively lays down the manner in which, and the reasons for which, restrictions can be imposed on free speech. First, to assess whether shutdown orders are provided by law, the article studies and compares the various Indian legislations (both primary and secondary) under which shutdowns are imposed by the Central and State Governments, including the Telegraph Act, 1885, the Code of Criminal Procedure, 1973, and the Information Technology Act, 2000. The requirement of publication of shutdown orders – another component of lawfulness/legality – is also discussed. Second, the legitimacy of shutdown orders is assessed against the exhaustive list of aims contained in Article 19(2), with a specific focus on "public order". Third, on reasonableness, the article identifies various factors that ought to be considered by courts in determining whether an internet shutdown is a reasonable and proportionate response to the problem at hand. The article also examines judicial trends with respect to challenges mounted against internet shutdown orders. All relevant judicial orders – right from the Gujarat High Court's abdication of constitutional responsibility in Gaurav Vyas (2015-16) all the way up to the Supreme Court's abdication in Foundation for Media Professionals (2020) – are studied and critically analyzed. Before concluding, we identify possible areas of further research to take forward the discourse on finding the right balance between the demands of free speech and societal security concerns.

Since the 1980’s, the judiciary has perceived prisons in India as a site of rehabilitation and has focused on addressing prison reform through piecemeal managerial directives. Simultaneously, the criminal process has steadily incarcerated more persons as undertrials, Worryingly, these trends have been progressively worsening for the last decade that has rendered prison reform infructuous. Through an analysis of prison populations and crime rates in India it is evident that the stable rise in prison population is not a mere consequence of managerial inefficiency but a reflection of a systemic preference for undertrial incarceration. This is premised on the manner in which the criminal justice system allows for liberal arrests and illiberal bail. As a consequence, prisons symptomatise how this preference for incarceration of undertrials hollows out the presumption of innocence and renders notions of guilt or innocence irrelevant. Thus, prison reform must be based on a recognition that prisons are not sites of rehabilitation but instead serve as warehouses for the innocent.

When a plaintiff files a civil lawsuit in federal court, her complaint must satisfy certain minimum standards. Specifically, under the prevailing understanding of Federal Rule of Civil Procedure 8(a), a complaint must plead sufficient factual matter to state a claim to relief that is plausible on its face, rather than mere conclusory statements. Given the significantly higher stakes involved in criminal cases, one might think that an even more robust requirement would exist in that context. But in fact a weaker pleading standard reigns. Under the governing interpretation of Federal Rule of Criminal Procedure 7(c), indictments that simply parrot the language of a statute are often sufficient. As this Article shows, however, that pleading balance is misguided. The drafters of Rule 7(c) designed the Rule to be at least as stringent as Rule 8(a), as demonstrated by the text of Rules 7(c) and 8(a), the history of American pleading, the original Advisory Committee Note to Rule 7(c), and the drafting history of the Criminal Rules. And the drafters’ original design should govern today, notwithstanding the Supreme Court’s amplification of the civil pleading standard in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. All of that means that our current pleading regime should be rethought, that criminal defendants should receive more protections and information about the case against them than they presently do, and that policy arguments—which seem to favor a stronger criminal pleading standard—are all the more critical.

This is the introductory chapter of an edited volume which combines a wide range of analytical perspectives and themes in order to investigate questions that link institutional changes within the court system and legal environment with developments in criminal procedure law. The chapter begins with a review of the literature on post-2013 legal institutional reforms before turning to the context and content of procedural law changes and court reforms. It then discusses the role of the SPC as an initiator of criminal procedure amendments and promoter of legal institutional reform. The most significant change in the judicial structure, that caused by the introduction of the supervision commissions, is examined from the perspective of ongoing court reforms and the balance of power amongst the various actors within the judiciary. The chapter then turns to the criminal procedure law reforms enacted in 2012 and 2018, discussing the new mechanism of pre-trial detention, the criminal justice reform goal of ‘trial-centredness’ and criminal reconciliation in public prosecution cases. As the contextual factors of criminal trials often have a decisive impact on the trial outcome, such factors as performance evaluations of courts and judges and media scrutiny of criminal cases are subsequently analysed. Finally, the chapter concludes with a summary of the key issues and findings of the volume as a whole.

Those seeking to reduce mass incarceration have increasingly pointed to restorative justice—an approach that typically brings those affected by a criminal offense together in an attempt to address the harm caused by the offense rather than to mete out punishment. This Article is an attempt to think seriously about incorporating restorative justice throughout the criminal legal system. For restorative justice proponents, expanding these practices raises a host of questions: Does the opportunity to alleviate mass incarceration justify collaboration with a deeply flawed criminal legal system? Will the threat of criminal prosecution destroy the voluntariness and sincerity that is essential for a successful restorative process? Can restorative justice be successfully used in cases where the victim cannot participate or there is no identifiable victim, as in drug offenses? Will the process be coopted by bureaucratic impulses? Restorative justice skeptics may ask whether applying a restorative approach to the most serious crimes will jeopardize the deterrent value of criminal law and lead to outcomes that are vastly disproportionate. Those both inside and outside the movement will ask whether restorative justice can be implemented in a way that protects defendants’ procedural rights and is racially equitable. I explore the choices and trade-offs that would be involved in expanding restorative justice to significantly reduce incarceration. I argue that restorative justice can be expanded without significant adverse impacts on due process, racial equity, and proportionality. At the same time, vastly expanding restorative justice entails compromising some key features of restorative justice. I suggest that the disadvantages of expansion are significant, but are outweighed by the moral imperative to experiment with alternatives to mass incarceration.

In India, the Code of Criminal Procedure,1899 under section 342(2) (corresponding to S.313 Cr.P.C.,1973) gave discretion to the court for drawing (adverse) such inference against accused if he remained silent or gave false answers to the question put up by the court to the accused while explaining the incriminating prosecution evidence that appeared against the accused. However the rider empowering the court to draw (adverse) inference against silence or false answers given by the accused in his examination under section 313 Cr.P.C. is found absent under Code of Criminal Procedure, 1973. As it stands now, no amendment is carried to Section.313 Cr.P.C. by the legislation providing the court with the power to draw adverse inferences against the accused in his examination under section 313 Cr.P.C.(which was present in the old code). The Committee on Reforms of Criminal Justice System deferred with the view of the 182nd report of the Law Commission of India, by favouring for amendment on the line of Section 35 of the United Kingdom Criminal Justice and Public Order Act 1994 to authorize the court to ask questions to the accused for discovering truth and to draw adverse inference against the accused on his silence or refusal to answer the questions put to him. However, in absence of legislative amendment to section.313 Cr.P.C., one is left with only one question, can court draw adverse inference in the examination of accused under section 313 Cr.P.C.?

Equitable remedies have begun to play a critical role in addressing some of the systemic issues in criminal cases. Invoked when other solutions are inadequate to the fair and just resolution of the case, equitable remedies, such as injunctions and specific performance, operate as an unappreciated and underutilized safety valve that protects against the procedural strictures and dehumanization that are hallmarks of our criminal legal system. Less familiar equitable-like legal remedies, such as writs of mandamus, writs of coram nobis, and writs of audita querela, likewise serve to alleviate fundamental errors in the criminal process. Several barriers contribute to the limited use and efficacy of these longstanding remedies. Despite the vast numbers of people caught up in the criminal system, society’s aversion to recognizing errors in the system or to acknowledging the humanity of those charged prohibits greater invocation of these remedies. When taken in conjunction with the historically based fear of judicial arbitrariness and unchecked discretion associated with equity courts, these barriers can seem insurmountable. This Article is the first to acknowledge the pervasiveness of equitable remedies in the criminal system, and to advocate for an expanded use of equitable and equitable-like legal remedies in criminal cases. In an era with the odds so overwhelmingly stacked against criminal defendants, equity provides a much-needed check on our criminal system, allowing for the exercise of mercy and justice, not just punitiveness and retribution.

During the 1990s and 2000s, 70 percent of Latin American countries transitioned from an inquisitorial criminal procedure to a U.S. adversarial model in a phenomenon known as the Latin American Criminal Procedure Revolution (LACPR). The LACPR involved more than 19 countries, and cost around 1.51 billion dollars. Almost two decades after its implementation, the impact of the most significant procedural reform undertaken on the continent remains largely unexplored. Using Colombia as a study case, I explore the LACPR effect in pre-trial detentions using two methodological strategies. First, I exploit the exogenous variation resulting from the LACPR gradual implementation to estimate a difference-in-difference and an event study model. Secondly, I estimate the impact of the LACPR in pre-trial admission and release rates using a regression analysis controlling for co-founding variables and time-trends. The results provide compelling evidence that the U.S. adversarial model decreased the number of inmates in pre-trial detention, specifically male detainees. However, the results show that the decline is not associated with a decrease in the use of pre-trial detention (human rights gain) but to an increase in procedural speediness (efficiency gain).

Generalization of the practice of the ECHR witnesses that the Court repeatedly in various solutions including cases against Russia, specified that «the practice of holding defendants in custody without a specific legal framework or clear rules regulation their position, as a result, they may be deprived of their liberty for an unlimited period without a court decision, is incompatible with the principles of legal certainty and protection from arbitrariness, which run like a red thread through the Convention and legal norms». By the way there still exist norms in domestic criminal procedure legislation, that are not fully compatible with the principle of legal certainty.

In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state. I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list. Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in some way unusual in this respect (i.e., similar observations certainly could be and have been made about the pandemic’s exposure of long-lasting problems associated with the health care/insurance system, the tethering of social benefits to employment, pervasive inequality, and many other features of U.S. political economy). Nevertheless, the current moment provides an opportunity to appreciate the ways in which some of the most problematic aspects of criminal law in times of crisis are basic features of the U.S. carceral state in times of “normalcy.” To this end, my argument proceeds in two Parts, each addressing one of the aspects or pathologies of U.S. criminal policy that the pandemic has exacerbated. In Part I, I address the absence of “sentencing realism” or, perhaps more accurately, the failure to consider the reality of jails and prisons when imposing sentences or pretrial detention. In Part II, I address the basic limitations of thinking of “the criminal system” as a single monolithic “system,” or, even, as “systematic” at all. What do commentators and lawmakers miss when they suggest or assume that criminal law and its administration are the same in a rural county in Colorado as in an urban county in New York? In each Part, I explain how the pandemic has made each phenomenon more easily identifiable, but also how each phenomenon defined the criminal system in pre-coronavirus days. Ultimately, I argue that the “crisis” frame provides an opportunity for reform, but we must not allow the crisis frame to obscure the ways in which the criminal system was in crisis well before the first COVID-19 tests came back positive.

At the University of the Pacific Law Review Symposium titled “The Warren Court’s Criminal Procedure Revolution: a 50 year Retrospective,” held October 11, 2019, much of the commentary around the legacy of the Warren Court’s due process revolution was somber for very legitimate reasons. Yet, a retrospection of this important due process revolution through an immigration lens elucidates lessons perhaps overlooked. Foremost, by expanding the universe of the laws, people, and context we consider to evaluate the Warren Court’s criminal due process legacy, we glean that it is much broader than initially imagined; indeed, broader than it was intended even by the Warren Court itself. Moreover, this legacy is perhaps not quite finished in the area of immigration law. At least, we foresee that the crimmigration crisis and the immigration federalism wave could still yield an unintended and unimagined due process revolution for immigrants that is long overdue. We proceed in this essay in two principal parts. In Part I, we provide a historical context to the immigration cases decided during the Warren Court and contrast the few due process gains that immigrants enjoyed compared to criminal defendants. In Part II, we expand on the important immigration law developments fifty years post-the Warren Court through the lens of the Warren criminal due process revolution.

This article begins from the realization that there are at least two jury rights: the individual right of the criminal defendant, and the collective right of the community to adjudicate allegedly criminal behavior. Those two rights come into conflict when, for example, the criminal defendant waives his or her jury right or moves for a change of venue, thus robbing the local community of its adjudicatory authority. Thus far, there has been little attention to the conflicts between these two jury rights. My primary aim in this article is to shed light on this important subject. First, I explore the history of the jury through the lens of the two rights. The history of the jury reflects (1) the strong collective jury right backdrop against which the Constitution was drafted, (2) a growing ambivalence towards that collective right between the Constitutional Convention and the Civil War, and then (3) a century-long individual jury right regime. The ascendance of the jury right is associated with the increased empowerment of criminal defendants to waive their jury right or move to transfer to a new venue. In recent decades, legal practitioners—scholars, activists, judges, and Justices—have attempted to resuscitate the collective jury right. In addition to curbing the rights of criminal defendants (and judges) to exclude juries from particular aspects of the adjudicatory process, there has been an increasing effort to empower juries to exercise their collective right through nullification. After exploring the history of the two jury rights, and describing some of the corollaries of each right, I consider some of the possible implications of this analysis for different constitutional theories: Dworkinian moral reading of the law, constitutional pluralism, and originalism. By shedding light on these underexplored jury rights, this article is designed to enable more rigorous analysis by many different breeds of constitutional theorists. Additionally, given the occasional tension between these rights, the analysis in this article will enable legal practitioners to meaningfully debate issues and proposals that implicate one or both of the jury rights.

In an era of declining labor power, police unions stand as a rare success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite broad support for unionization on the political left, police unions have become public enemy number one for academics and activists concerned about race and police violence. Much criticism of police unions focuses on their obstructionist nature and how they prioritize the interests of their members over the interests of the communities they police. These critiques are compelling—police unions shield officers and block oversight. But, taken seriously, they often sound like critiques of unions in general, not just police unions. To the extent that public-sector unionism remains a social good because of concerns for economic inequality and worker power, wholeheartedly embracing these critiques seems like a risky proposition. This Article examines the strange case of police unions and asks how they are (and are not) representative of U.S. unionism. More pointedly, this Article asks what increasingly common critiques of police unions should mean for policing reform and the future of public-sector unionism. In an effort to construct a more nuanced picture of police unions’ functions, I situate the role of police unions within two disparate scholarly debates: (1) the literature on policing reform; and (2) the literature on public sector unions. How are police unions different from other public-sector unions, and how might critiques and defenses of police unions apply to other public-sector unions? Ultimately, I argue that the challenge in articulating a theory of what makes police unions different highlights both the problem with police and the problem with the way scholars think about unions. If police unions are objectionable because of their views and the conduct of police, this concern speaks to a problem with police—full stop. The problems with the unions are only issues by extension. If the unions are objectionable because of their commitment to their members’ interests over those of the public at large, though, the critiques are properly understood as undercutting public-sector unions generally.

Who, besides the U.S. Department of Justice, can prosecute criminal actions in federal court? This Article considers this question, which has arisen recently in various contexts—DOJ’s attempt to abort the prosecution of former National Security Advisor Michael Flynn, the contempt prosecution of former Sheriff Joseph Arpaio (who received a presidential pardon), the confrontation over the court-appointed interim U.S. Attorney in New York, and a local District Attorney’s threats to prosecute lawbreaking federal law enforcement officials. Consider first nontraditional trial-level federal prosecutions. The Constitution’s Take Care and Appointments Clauses, as well as standing, preclude private prosecutions and prosecutions by states and Houses of Congress. Court-appointed interim U.S. Attorneys may oversee federal prosecutions, and court-appointed special prosecutors may prosecute criminal contempt cases. However, court-appointed attorneys likely cannot undertake broader responsibilities. Consider next criminal appeals. While the Supreme Court has acknowledged the possibility of a state’s appellate standing where DOJ declines to appeal a federal criminal decision holding a state statute unconstitutional, that precedent is dubious. Moreover, even if a state’s standing is sometimes proper, the case for appellate standing of a House of Congress is weaker. Finally, consider state prosecutions in federal court. A state should have standing to appeal criminal cases to the Supreme Court, and to pursue properly removed state criminal prosecutions in the lower federal courts, as should any properly designated state governmental entity. To the extent a state allows private prosecutions, aggrieved individuals ought to be able to pursue such prosecutions if they are properly removed.

Amici curiae are criminal procedure professors and scholars who teach, study, and write about the Fourth Amendment. Amici believe this case presents fundamental issues concerning the scope of a "seizure" under the Fourth Amendment. Amici are of the view that a Fourth Amendment "seizure" has occurred when a suspect is intentionally shot by law enforcement yet evades arrest.

During the 1990s, Latin America experienced a criminal procedural revolution (LACPR) when approximately 70% of its countries abandoned their inquisitorial system and adopted the U.S. adversarial model. Followed the LACPR, the region experienced a dramatic increase in crime, consolidating it as one of the most violent areas in the world. Despite previous empirical evidence indicating that procedural law affects criminal behavior, the effects of the LACPR continue highly unexplored. In this paper, we use the Latin American case to evaluate the impact of an adversarial reform on crime rates. Exploiting the quasi-experimental implementation in one key country— Colombia—we use an event study approach combined with a difference-in-difference with variation in treatment timing to estimate the reform’s consequences on criminal activity. Despite the opposite incentives the reform created, we find an increase associated with the procedural transformation in overall crime rates (22%), violent crime (15%), and property crime (8%). However, we observe a dramatic decrease in drug offenses associated with lower arrest rates. Our findings contribute to the literature on Latin American crime and the link between procedural law and criminal behavior.

The Confrontation Clause of the Sixth Amendment grants “the accused” in “all criminal prosecutions” a right “to be confronted with the witnesses against him.” A particular problem occurs when there is a gap in time between the testimony that is offered and the cross-examination of it, as where—pursuant to a hearsay exception or exemption—evidence of a current witness’s prior statement is offered and, for some intervening reason, her current memory is impaired. Does this fatally affect the opportunity to “confront” the witness? The U.S. Supreme Court has, to date, left unclear the extent to which a memory-impaired witness can afford a criminal defendant her right to confront. Would, for instance, it be of any value to permit a defendant the opportunity to cross-examine a witness claiming no recollection of having seen the crime or having identified the defendant as the perpetrator? Should the right to confront simply imply the ability to look one’s accuser in the eye at trial, or should it necessitate some degree of opportunity for substantive cross-examination? Two petitions for certiorari that the U.S. Supreme Court denied in December 2019—White v. Louisiana and Tapia v. New York—could have permitted the Court to clarify confrontation rights in memory loss cases. This Article identifies and discusses eight key issues arising under the Confrontation Clause in connection with memory impairment in witnesses. Although the Court chose not to put these issues to rest in the context of White or Tapia, we anticipate federal and state courts will be called upon to answer these issues in the coming years, and we suspect the Court will eventually need to answer them.

This paper is about information to police and police investigation as in accordance to the Criminal procedure code 1898 of Pakistan. It mainly talks about the First information report (F.I.R) in cognizable cases and how investigation is to be carried out in these offences. It also covers the non-cognizable offences and how its investigation is conducted. This paper mainly derives its authority from section 154 to 160 of CrPC 1898.

People that are on parole have been lumped into what is called the criminal class by the courts. Being in the criminal class has many consequences. One such consequence is the loss of individual Fourth Amendment rights to be free from unreasonable searches and seizures. While on parole an individual and their property can be searched with only reasonable suspicion rather than probable cause. The justification for a lower standard is that those in the criminal class pose a greater threat to the community and are in need of greater control because of their propensity to commit crimes at higher rates than the average citizen. However, these beliefs may be founded on misinterpretations of data and inaccurate cultural beliefs. In this article we investigate the “social threat” presumption courts relied upon to lessen parolees Fourth Amendment protections. Specifically, we interview parolees in Colorado to understand why they violate their parole terms and are re-incarcerated. Generally, we find that the presumptions about parolees posing a greater threat to society than the average citizen is unsupportable and therefore unconstitutional.