Scholarly Articles and Other Contributions
 

Document Type

Article

Publication Date

2002

Abstract

In this Note, I explore the potential impact of LaGrand upon domestic American criminal jurisprudence with an eye toward what the case demonstrates for America as a member of international institutions more generally. In Part I, I describe the central holdings of the ICJ in LaGrand, noting how dramatically LaGrand departs from what American courts have previously interpreted the VCCR to require. Having demonstrated the enormity of LaGrand's procedural implications, I examine early cases after LaGrand and what they suggest about the American judicial response to the ICJ decision in Part II. I argue that American courts err to the extent that they recognize little shift in law after LaGrand. The ICJ directed the American courts to craft a remedy in future cases that provides "effective review of and remedies for criminal convictions impaired by the violation of the rights under Article 36. These words are not an escape hatch for American courts, but rather an instruction to be respectful of the ICJ opinion in the context of domestic criminal cases. Finally, in Part III, I argue that American courts are well-equipped to heed this instruction, for they are experienced in balancing rights and employing prejudice analysis where the criminal adjudicative process has been tainted. These models should be a template for the similar treatment of Article 36 violations. Such a model allows the courts to factually distinguish between various Article 36 claims and to tailor narrow remedies on a case-by-case basis. In fact, meaningful application of the LaGrand opinion in the United States may enhance our own constitutional principles of due process while simultaneously enhancing our role as a member of international institutions.

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