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Criminal Procedure
Dealing With Experts on Competence to Stand Trial: Suggestions and Approaches -- Part Two, by
John T. Philipsbrn.
A legitimate question can arise about how influential these organizational ethical principles are to an expert who professes not to belong to a given organization. Nevertheless, both in decisions of reviewing courts on constitutional law and criminal procedure issues, as well as in civil case decisions pertinent to practice and malpractice by psychologists and psychiatrists, courts have made reference to the predominant ethical codes and standards of practice of the dominant organizations.
In addition to the general standards of practice and generalized ethical standards pertinent to the mental health professions, there are a number of standards that govern in the arena of competence to stand trial assessments.
Non-Specific.
1 pages. Written:
2008. Added:
5-30-2009.
nacdl.org
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Criminal Procedure
Representing a Client Charged With Violating Conditions of Supervised Release--Part Two, by
Douglas A. Morris.
Chapter Seven, like the balance of the Sentencing Guidelines after Booker, merely suggests the appropriate sentence and the district court need not follow those suggestions. In fact, Chapter Seven, which is a policy statement, appears to continue to have some lower value than the portions of the Sentencing Guidelines that are “true” Guidelines, even though the remedial portion of Booker held that the entire Sentencing Guidelines are advisory.
Non-Specific.
1 pages. Written:
2006. Added:
4-05-2009.
nacdl.org
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Criminal Procedure
Representing a Client Charged With Violating Conditions of Supervised Release--Part I, by
Douglas A. Morris.
Probationers and those who serve a term of supervised release are similar because they both report to a probation officer, the violation reports are the same, and the district court will consider Chapter Seven of the Sentencing Guidelines when determining the appropriate sentence. As to the distinction between the two, “probation is imposed instead of imprisonment, while supervised release is imposed after imprisonment.”
Non-Specific.
1 pages. Written:
2006. Added:
4-05-2009.
nacdl.org
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Criminal Procedure
Dealing With Experts on Competence to Stand Trial: Suggestions and Approaches -- Part Two, by
John T. Philipsbrn.
Indeed, the AMA and several states have discussed expert medical testimony as a form of medical practice. This is an important development, as it emphasizes the concern for adherence to standards. In addition to the general standards of practice and generalized ethical standards pertinent to the mental health professions, there are a number of standards that govern in the arena of competence to stand trial assessments.
Non-Specific.
1 pages. Written:
2008. Added:
4-04-2009.
nacdl.org
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Criminal Procedure
Challenging Pretrial Lis Pendens on Substitute Property, by
Richard L. Holcomb; David B. Smith.
The filing of lis pendens and procedures to challenge lis pendens are governed by the law of the state in which the property is located. Thus, the procedures obviously vary from state to state. Absent restraint on the government’s action from the federal courts, a lawyer could be forced to travel from state to state challenging various lis pendens filings. The matter is further complicated by the fact that the defendant and the lawyer may never know that a lis pendens has been filed. In United States v. Parrett, the government filed the lis pendens without notifying the defendant that the lis pendens had been filed.
Non-Specific.
1 pages. Written:
2008. Added:
4-03-2009.
nacdl.org
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Criminal Procedure
Daubert Challenges to Experts in Federal Criminal Cases: An Overlooked Defense, by
Michael A. Morse; Alexandra C. Gaugler.
In our experience, mounting a Daubert challenge to the government’s expert is an essential part of a zealous, effective defense. Besides the potential for knocking out or limiting a key government witness, a thoughtful Daubert challenge can: (1) provide crucial insight into the government’s case; (2) expose weaknesses in the government’s theory; and (3) lock in the testimony of the government’s witness.
Non-Specific.
1 pages. Written:
2007. Added:
4-03-2009.
nacdl.org
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Criminal Procedure
A Practitioner's Guide to The Crack Retroactivity Amendment: Overcoming the Many Obstacles to Justice, by
Anne E. Blanchard; Sarah S Gannett.
This article discusses the adoption of the retroactivity amendment and litigation strategies for ensuring that your clients receive the maximum possible benefit under it. Beware, however, because the landscape surrounding the retroactivity amendment is changing quickly and frequently.
Non-Specific.
1 pages. Written:
2008. Added:
4-02-2009.
nacdl.org
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Criminal Procedure
The Stored Communications Act and Private E-Mail Communications, by
Martin C. Weinberg; Robert M. Goldtsein.
This article will discuss the relevant statutory sections, how and why the government’s use of the Act violates the Fourth Amendment and contradicts the Supreme Court’s well-seasoned “closed container” jurisprudence, and why the government’s arguments to the contrary are not persuasive. We will utilize the facts and arguments presented in Warshak for contextual flavor, as well as a paradigm to demonstrate the government’s narrow view of the Fourth Amendment and its expansive use of the SCA.
Non-Specific.
1 pages. Written:
2007. Added:
4-01-2009.
nacdl.org
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Criminal Procedure
How the Adam Walsh Act Restricts Access to Evidence, by
Ian N. Friedman; Kristina Walter.
The purpose of this article is to examine § 3509(m) of the Adam Walsh Act and how it impedes a defense attorney’s ability to prepare for a trial involving charges of possession of child pornography. The article will examine the rationale for the amendments to 18 U.S.C. § 3509 and will discuss the use of experts in the defense of computer-based child pornography cases. Finally, the article will highlight the legal problems posed by § 3509(m) and comment on current case law, including the pending case of United States v. Knellinger.
Non-Specific.
1 pages. Written:
2007. Added:
3-16-2009.
nacdl.org
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Criminal Procedure
Potential Post-Hudson Pitfalls, by
Richard L. Holcomb.
This article addresses whether suppression of evidence will continue to be required in order to deter illegal conduct of law enforcement officers during the execution of a search warrant, as opposed to the procurement or facial deficiency of the search warrant.
Non-Specific.
1 pages. Written:
2007. Added:
3-16-2009.
nacdl.org
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Criminal Procedure
The Problem of False Confession in America, by
Richard A. Leo.
Throughout American history, police-induced false confessions have been among the leading causes of wrongful conviction. It is easy to understand how beatings, torture, sleep deprivation, and threats of violence may lead an innocent suspect to falsely confess. Yet with psychological interrogation methods, the idea that an innocent person would confess to a crime he did not commit – particularly to a felony that carries the possibility of a lengthy prison sentence or even the death penalty – is highly counterintuitive.
Non-Specific.
1 pages. Written:
2007. Added:
3-15-2009.
nacdl.org
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Criminal Procedure
Federal Law Issues in Obtaining Evidence Broad - Part One, by
Linda Friedman Ramirez.
Despite the growing importance of transnational issues in domestic prosecutions, defense counsel must overcome significant disadvantages when seeking to obtain evidence abroad or raising extraterritorial due process claims. This article seeks to introduce defense attorneys to some of the case law relevant to these issues. Attorneys are encouraged to refer to other resources to be most effective in securing foreign evidence.
Non-Specific.
1 pages. Written:
2007. Added:
3-15-2009.
nacdl.org
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Criminal Procedure
Surprise, Surprise: Is Proper Notice Still Required for an Above-Guidelines Sentence in Federal Court?, by
Mark P. Ranking.
This article provides a brief overview of the (potentially still applicable) pre-Booker notice requirement for non-guideline sentences, as well as an analysis of post-Booker rulings on this issue. The article focuses particularly upon the unsettled state of the law among the federal appeals courts. Finally, it provides practical advice to defense counsel going forward in federal cases.
Non-Specific.
1 pages. Written:
2007. Added:
3-09-2009.
nacdl.org
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Criminal Procedure
(Not So) Lovely Rita, by
Steven G. Kalar; Jon M. Sands.
A Non-Binding Presumption, for Non-Binding Guidelines, for our Non-Binding Constitution. The previous bold pronouncements of a categorical Sixth Amendment right rang hollow with this recasting. Booker left many questions unresolved, including what role the Guidelines would play as but one of a number of sentencing factors to be considered by a court in imposing sentence under the Sentencing Reform Act, and how such sentences would be reviewed on appeal under the newly created “reasonableness” standard. It was hoped that this term’s decision of Rita v. United States would begin to resolve these issues. Instead, Rita provides more questions than answers.
Non-Specific.
1 pages. Written:
2007. Added:
3-09-2009.
nacdl.org
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Criminal Procedure
Federal Law Issues in Obtaining Evidence Abroad -- Part Two, by
Linda Friedman Ramirez.
It is important for counsel to begin the process as soon as possible so that he or she can seek judicial intervention in the event of any unreasonable delay or denial. Moreover, this allows counsel to make an appropriate record for purposes of appeal if the government has unreasonably refused to grant a visa. In addition, if there is any possibility that the witness does not, in fact, want to testify and fails to cooperate with the visa application process, the defendant will be in a better position to argue that the witness is “unavailable” for purposes of Rule 15(a) of the Federal Rules of Criminal Procedure.
Non-Specific.
1 pages. Written:
2007. Added:
3-09-2009.
nacdl.org
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Criminal Procedure
The Continuing Struggle for Just, Effective and Constitutional Sentencing After United States v. Booker: Why and How the Guideli, by
Amy Baron-Evans.
In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that judicial determinations of fact not found by a jury or admitted by the defendant to increase sentences under the Federal Sentencing Guidelines violated the Sixth Amendment. The Court made § 3553(a) the governing sentencing law, thus rendering the guidelines “advisory,” and prescribed a unitary standard of review -- “unreasonableness” with regard to § 3553(a) -- for all sentences within or outside the guideline range.
Non-Specific.
1 pages. Written:
2006. Added:
3-09-2009.
nacdl.org
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Criminal Procedure
In Good Form: Criminal Motion Practice, by
Thomas J. Farrell.
Article discusses procedural matters that can be advanced in criminal matters.
Non-Specific.
3 pages. Written:
2009. Added:
1-13-2009.
Legal Assistant Today
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Criminal Procedure
Different Rules for Different Suspects, by
Leslie R. Caldwell.
Lawyers practicing whitecollar criminal law may not be aware that the U.S. Department of Justice's policy on publicly identifying individuals suspected but not accused of criminal wrongdoing depends entirely on which part of the department is handling a particular criminal case. There is a serious question whether the department's main justifications for naming uncharged individuals on antitrust carveout lists to motivate corporate cooperation in complex conspiracy cases and to ensure contractual clarity in plea agreements warrant the potentially serious damage to the named individuals' due process rights and reputations.
Non-Specific.
4 pages. Written:
2007. Added:
5-07-2008.
New York Law Journal
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Criminal Procedure
Should Disclosure of Information Always Destroy Privacy?, by
Dr. Ronald B. Standler.
I have posted a detailed essay explaining why the rule in U.S. v Miller, 425 U.S. 435 (1976) and Smith v. Maryland, 442 U.S. 735 (1979) is wrong, and how this rule degrades privacy on the Internet, degrades privacy of library and bookshop records, degrades privacy of personal letters, and degrades privacy of medical records in criminal trials.
Federal.
51 pages. Written:
2007. Added:
11-01-2007.
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Criminal Procedure
Appeal Waivers And The Future Of Sentencing Policy, by
Nancy J. King, Michael E. O’neill.
This paper is first empirical analysis of appeal waivers clauses in plea agreements by which defendants waive their rights to
appellate and postconviction review. The uneven practice of trading sentencing concessions for waivers among cases & courts also suggests that waivers are
undercutting efforts to advance consistency in federal sentencing.
Non-Specific.
53 pages. Written:
2005. Added:
8-02-2007.
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Criminal Procedure
Fourth Amendment: Search and Seizure, by
-.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.
Non-Specific.
74 pages. Written:
2005. Added:
5-10-2007.
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Criminal Procedure
Search and Seizure In Environmental Cases: Tips and Traps, by
Robert S. Anderson.
In our practice, the prosecutor is as involved as
the agent in the preparation, execution and
return of the search warrant, and analysis of
evidence seized therefrom;
Non-Specific.
5 pages. Written:
2006. Added:
5-10-2007.
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Criminal Procedure
In defense of evidence and against the exclusionary rule: a libertarian approach, by
Patrick Tinsley, N. Stephan Kinsella and Walter Block.
A prime example is so-called exclusionary rule, according to which evidence uncovered by police in violation of Fourth Amendment's" prohibition against "unreasonable searches & seizures" is excluded from a defendant's criminal trial. Our thesis is that not all legal innovations are improvements, & that this applies, in spades, to exclusionary rule.
Non-Specific.
18 pages. Written:
2005. Added:
5-10-2007.
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Criminal Procedure
The KPMG Deferred Prosecution: Warning Flags for Defense Rights, by
Kathryn Keneally.
The policies and practices of the Department of Justice, evolving from the Holder and Thompson Memoranda and most recently culminating a remarkably broad deferred prosecution agreement with KPMG, are effectively taking any such checks out of the system.
Non-Specific.
5 pages. Written:
2005. Added:
4-29-2007.
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Criminal Procedure
Discovery Rights & Obligations in Criminal Cases, by
Attorney Simon R. Brown.
Discusses discovery practice in New Hampshire.
New Hampshire.
13 pages. Written:
2005. Added:
4-09-2007.
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Expert Witnesses
Daubert: A Practical Guide to Challenging Your Opponent's Expert - And Protecting Your Own, by
J. Hampton Skelton.
The presentation will address practical issues in making & defending challenges to admissibility of expert testimony with an emphasis on Daubert/Robinson standards & practical tips for achieving your goals. Civil trial procedure and criminal procedure may always invove an expert who will testify to the veracity of almost anything.
Non-Specific.
25 pages. Written:
2005. Added:
4-09-2007.
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Criminal Procedure
A Quarter Century after Upjohn, in our Current Culture of Waver, do Privileges Still Exist?, by
George A. Stamboulidis and James E. Pfeffer.
In this article, we discuss the attorney-client privilege in the corporate context in general, and the Supreme Court’s Upjohn decision in particular. Second, we analyze how the predecessors—the Holder, Thompson, and McCallum Memoranda—treated privilege and waiver. Then we examine the McNulty Memorandum in depth.
Non-Specific.
15 pages. Written:
2007. Added:
3-26-2007.
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Criminal
White-Collar Crime: The Crash Course, by
Solomon L. Wisenberg.
Article focuses on the real-world defense of individuals, as opposed to corporations, during the pre-indictment criminal procedure stage of a federal white-collar crime investigation. Most large companies can avoid indictment by cooperating with the federal government and waiving the attorney-client privilege.
Non-Specific.
10 pages. Written:
2005. Added:
3-23-2007.
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Criminal Procedure
An Introduction to Federal Guideline Sentencing, by
Lucien B. Campbell and Henry J. Bemporad.
For lawyers accustomed to discretionary sentencing practice, the federal sentencing guidelines present an alien and dangerous terrain. Because of their complexity, the sentencing guidelines can be a minefield for the defense, increasing exponentially the effort required
to provide effective representation.
Federal.
30 pages. Written:
2005. Added:
3-23-2007.
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Criminal Procedure
Due Diligence: The Sentencing Guidelines and the Lawyer’s Role in Corporate Compliance, by
Steven Carr.
A recent amendment to Federal Sentencing Guidelines imposes new, tougher
requirements and mandates a cultural imperative for ethical behavior and compliance with law by all corporations and business organizations, large and small -- even nonprofit organizations.
Federal.
9 pages. Written:
2005. Added:
3-23-2007.
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Criminal Procedure
Killer Seatbelts and Criminal Procedure, by
David Alan Sklansky.
Killer seatbelts refer to the observation that seatbelts and other mandated safety devices in cars had done little good. But drivers responded by taking less care. The result was only a modest drop in driver and passenger fatalities, fully offset by a rise in pedestrian deaths.
Non-Specific.
9 pages. Written:
2006. Added:
3-18-2007.
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