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Trolling Research Papers, January 2012

Trolling Research Papers, January 2012

I can spend hours at a clip trolling the Social Science Research Network for papers.  Hit “Browse” by the masthead and have at it, or type “Criminal” (or whatever) in the search box then change the sort to “Date Posted, Descending.”  Just watch the original publication date because it doesn’t always coincide with the SSRN posting date.  Here’s some articles, followed by the Abstract, that I tossed into my in-box for later reading:

Berghuis v. Thompkins: The Continued Erosion of Miranda’s Protections.  In the forty-four years since the Supreme Court of the United States decided Miranda v. Arizona, the “procedural safeguards” set forth in that case have become ingrained in American law enforcement practices. However, subsequent Supreme Court decisions interpreting and applying Miranda have weakened its impact, causing some to question its significance and efficacy as a tool protecting suspects’ privilege against self-incrimination. The Court’s decision in Berghuis v. Thompkins continues this emasculating trend, first, by expressly heightening the standard necessary for suspects to invoke the right to remain silent and, second, by implicitly lowering the standard necessary to establish waiver. This comment focuses on how the Court reached its decision, what the Court ought to have decided, what negative impacts Berghuis may have on the American criminal justice system, and how those negative impacts may be limited.

Corrupt Intentions: An Essay on Bribery, Unlawful Gratuity, and Honest-Services Fraud. This Essay develops an economic understanding of bribery, unlawful gratuity, and honest-services fraud offenses. Given the inherently transactional and private nature of these offenses, courts should elicit the parties’ intent from the economics of their exchange. When the exchange yields the parties a benefit not available on the open market, then – depending on the exchange’s particulars – it constitutes bribery, unlawful gratuity, or honest-services fraud. Based on this simple insight, I criticize the Supreme Court’s jurisprudence of criminal corruption.

Scales of Justice: Assessing Italian Criminal Procedure Through the Amanda Knox Trial.  The Italian criminal procedure code of 1989 reformed Italy’s criminal procedure system from an inquisitorial model into a hybrid scheme that draws inspiration from the United States’ adversarial system. However, despite including adversarial processes into its criminal procedure code, Italy’s inquisitorial foundations have continued to exert considerable influence over trial procedures.

In the wake of the Amanda Knox case Italian criminal procedure has increasingly come under fire.

The purpose of this note is to explore the changes made to the Italian criminal procedure code, to assess the current state of Italian criminal proceedings and to consider whether proper comparative methodologies have been used in assessing how Italian criminal procedure relates to traditional adversarial systems.

In the United States, Italian criminal procedure had not received much consideration until the details of the Amanda Knox trial became a national sensation. Using the Knox case as a foundation, this note will explore whether the vehement American critique of the Italian system has merit. The analysis suggests that the criticism may stem from a misunderstanding of how the system works, from a basic disconnect between concepts of ‘truth’ in common law and civil law systems, and from an imperfect comparison of fundamentally different systems of criminal  procedure.

When Rights Become Empty Promises: Promoting an Exclusionary Rule that Vindicates Personal Rights.  The United States has played a leading role in the development of the exclusionary rule since Weeks v. United States (1914). The original exclusionary rule justification set out in Weeks is the vindication principle which operates so as to exclude unconstitutionally obtained evidence for the purpose of vindicating the rights of the accused. In this way the exclusion of evidence provides a remedy to the victim of an illegality by maintaining the status quo ante.

The U.S. Supreme Court observed in Wolf v Colorado (1949) that “[o]f 10 jurisdictions within the United Kingdom and the British Commonwealth of Nations which have passed on the question, none has held evidence obtained by illegal search and seizure inadmissible.” In recent decades the U.S. exclusionary rule has become a weakened remedy for violations of the Constitution because exclusion has been made to depend on its deterrent effect, rather than on restoring parties to the status quo ante. An exclusionary rule based on deterrence theory suppresses evidence in order to discourage future illegal acts by government officials, rather than for the purpose of remedying a constitutional violation. This being so, when a court justifies the exclusionary rule on the basis of deterring such conduct, the application of the rule becomes limited to situations where exclusion will serve an explicitly deterrent purpose.

New Zealand and Canada have adopted judicial integrity as the underlying justification for their versions of the exclusionary rule. Judicial integrity in these jurisdictions is conceived to mean the ability of the judiciary to convict the accused, particularly of serious crimes, so that the public has greater faith in the judicial process. Relying on this principle judges are afforded more discretion and, in the end, entails the balancing of the seriousness of the offense with the seriousness of the violation.

Ireland justifies the exclusionary rule on the basis of vindication principle and excludes unconstitutionally seized evidence by way of expressly vindicating the personal rights of the accused. This justification for the exclusionary rule provides, it is submitted, the optimal level of protection against constitutional infractions.

Part I of this article details the history of the U.S. exclusionary rule and its deterioration as an effective remedy following the development, in the case law, of an emphasis based on deterrence as providing the underlying justification for exclusion. Part II examines Canada’s and New Zealand’s legislatively mandated exclusionary rules that employ balancing tests based on the principle of judicial integrity. Part III sets out the somewhat contentious history of Ireland’s exclusionary rule and the importance of the vindication principle in the construction of what is arguably a near absolute exclusionary rule. Finally, Part IV advocates that excluding evidence for the purpose of vindicating constitutional rights provides the most protective remedy for the violation of such rights.

Students’ Freedom from Excessive Force by Public School Officials: A Fourth or Fourteenth Amendment Right?  In the more than thirty years since Ingraham v. Wright was decided, the Supreme Court has still not definitively resolved the question of whether the Fourth Amendment’s Seizure Clause or the Fourteenth Amendment’s Substantive Due Process applies to public school officials’ use of excessive force to punish their students. Since the 1980s, a clear majority of the circuits has applied substantive due process to such claims under the Johnson v. Glick-Hall v. Tawney “shocks-the-conscience” model.

This article makes a counter-majoritarian argument, contending the Fourth Amendment, rather than the Fourteenth, should determine such disputes. A number of strong arguments, based on guidance from the United States Supreme Court, support this view. These include: (1) The Court’s declaration in Graham v. Connor and County of Sacramento v. Lewis that Fourth Amendment privacy interests encompass security from excessive force; (2) its direction in Graham v. Connor to find the locus of a constitutional right in a specific provision of the Bill of Rights before resorting to the amorphous substantive due process clause as a source of protection; (3) its message in cases like Regents of the University of Michigan v. Ewin and Collins v. City of Harker Heights, expressing reluctance to expand the concept of substantive due process because guideposts are scarce and open-ended; (4) nearly all applications of force upon public school students, even misguided uses of corporal punishment, fit neatly into custodial and tutelary functions described in the Court’s New Jersey v. T.L.O. and Vernonia School District 47J v. Acton decisions; this makes them readily susceptible to the Fourth Amendment’s “reasonable at the inception” and “in scope” tests, typically applied under that constitutional provision; (5) the trend in the circuits in the criminal procedure context is to apply the Fourth Amendment to excessive force claims against 36 executive branch officials, until judicial intervention occurs at the arraignment or indictment, at which point substantive due process is applied and, because all uses of force by public school officials emanate from executive branch powers, the Fourth Amendment should apply rather than the Fourteenth. Instrumental and justice-related concerns are also addressed in the article. These factors tilt heavily in favor of the Fourth Amendment over the Fourteenth as the appropriate analytic tool for examining students’ excessive force claims against public schools and their officials.

That oughta keep you busy for a while …

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

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