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Retroactive Change in the Law to Punish a Defendant

By   /  October 17, 2014  /  Criminal Procedure, Volume 30, Issue 4 

Prison Cell Block

30 Touro Law Review 961           by

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Evidentiary Use of Photographic Identification: Is it Time for New York to Reevaluate its Singular Exception?

By   /  October 17, 2014  /  Criminal Procedure, Evidence, Volume 30, Issue 4 

Supreme Court over Pool

30 Touro Law Review 945           by

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Is New York Achieving More Reliable and Just Convictions when the Admissibility of a Suggestive Pretrial Identification is at Issue?

By   /  May 15, 2014  /  Criminal Procedure, Featured 

Gavel

In People v. Delamota, the New York Court of Appeals held a pretrial photo array was unduly suggestive and therefore in violation of the defendant’s due process rights. The court held that the photo array was suggestive because the civilian interpreter used during the identification knew the defendant prior to the pretrial photo array and influenced the victim’s identification.

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The Blueprint: Critiques of the Fingerprint and Abandonment Paradigms Utilized to Reject an Expectation of Privacy in DNA

By   /  April 22, 2014  /  Criminal Procedure, Featured 

Gavel with Book 2

The defendant, Vernon B., was charged with one count of criminal possession of a weapon in the fourth degree. On November 10, 2011, a police officer allegedly observed the defendant throwing a bag from the window of a residence, and upon inspection, he found the bag contained a loaded 9mm pistol, which subsequently tested positive for male DNA.

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Are There Still Collateral Consequences in New York After Padilla?

By   /  March 18, 2014  /  Criminal Procedure, Featured 

Gavel

In Padilla v. Kentucky, the United States Supreme Court ruled that the failure of a criminal defense attorney to properly advise a defendant of the immigration consequences of a guilty plea was a violation of the defendant’s Sixth Amendment right to counsel. Significantly, the Supreme Court stated: “We . . . have never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance.’ ”

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Prearraignment Lineup Procedures: Are Multiple Lineups Unduly Suggestive or Sufficiently Reliable?

By   /  January 27, 2014  /  Constitutional Law, Criminal Procedure, Featured 

Scales & Gavel

Pretrial identification procedures are critical stages of the criminal prosecution process. In some cases, a defendant’s guilt or innocence may rest entirely on an eyewitness’s identification. Therefore, it is imperative that criminal defendants are afforded constitutional safeguards, such as the right to counsel and due process of law—to ensure that identification procedures are conducted fairly. This case note will explore concerns raised in the context of suggestive pretrial lineup procedures.

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Armed to the Teeth: The Use of a Person’s Mouth, Teeth or Body as a Dangerous Instrument for Aggravated Offenses

By   /  November 25, 2013  /  Criminal Procedure, Featured 

Scales & Gavel

Defendant David Plunkett has a history of mental illness and is a carrier of the human immunodeficiency virus (HIV). During a visit to his primary care physician, he was found by police openly possessing marijuana and acting strangely in the waiting room. This behavior prompted the police to arrest Plunkett. Plunkett resisted the arrest and bit the police officer on the finger. As a result, Plunkett was charged and convicted of aggravated assault upon a police officer. Three elements must be satisfied to sustain a conviction for aggravated assault under New York Penal Law § 120.11. A prima facie case requires: (1) “intent to cause serious physical injury”, (2) “to a person whom he knows or reasonably should reasonably know to be a police officer or a peace officer engaged in the course of performing his official duties”, and (3) an injury caused by means of a “deadly weapon or dangerous instrument.”

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A Criminal Quartet: The Supreme Court’s Resolution of Four Critical Issues in the Criminal Justice System

By   /  October 14, 2013  /  Constitutional Law, Criminal Procedure, Featured 

Scales & Gavel

The most recent Supreme Court term was one in which the Court tackled several of the most critical issues that arise in our criminal justice system. Perhaps most importantly, as the 50th Anniversary of the Court’s decision in Gideon v. Wainwright approached, the Court addressed the problems presented by counsel who had not provided the effective assistance of counsel during the plea bargaining process. Whereas it was common knowledge that the vast majority of cases in the criminal courts of this country are resolved by plea bargaining, the Court had never required that court-appointed counsel provide competent advice when recommending rejection of a plea offer by the prosecution. It had not even been constitutionally required that counsel communicate to his client the existence of an offer that entailed a reduced sentence were the defendant to plead guilty. The Court also addressed the matter of what action by counsel would constitute abandonment of the client in the post-conviction phase of a case where the client had received the death penalty. And, finally, the Court considered what had remained an unresolved issue: was it constitutional to impose a sentence of life without parole for a juvenile who had been convicted of murder.

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The Military Trial at Rennes

By   /  February 18, 2013  /  Criminal Law, Criminal Procedure, Featured 

Rennes, France (Map)

The Dreyfus affair, known throughout France simply as “the affair” (“l’affaire”), caused the downfall of multiple Ministers of War, of an administration, and led France to the brink of civil war, as well as to a failed coup d’état. The military trial at Rennes, namely Dreyfus’s second military trial, which will be the central focus of this essay, was a culminating point of l’affaire.

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Silencing the Victims in Child Sexual Abuse Prosecutions

By   /  June 1, 2012  /  6th Amendment, Constitutional Law, Criminal Procedure, Evidence 

Silenced Man

Child sexual abuse prosecutions present challenging evidentiary and constitutional issues. Oftentimes, there is no physical evidence of the abuse. Children will frequently recant their allegations, since the vast majority of these crimes are committed by a parent, other relative, or by a friend of the family.

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