미국의 형사법 연구의 쟁점과 동향 -2007년~2012년 미국 연방 대법원 판례를 중심으로-

The most fiercely debated issues in criminal law & criminal procedures in the United States are the ones from actual cases in the Supreme Court. Given the practical nature of common law tradition the U.S. have, sorting out and reading throughout the recent cases enables us to understand the whole scheme of what has been going on in practice and such method is the most efficient way to figure out how the academic discussion should lead in terms of deciding what is ought to be. After analyzing more than 100 rulings from the U.S. Supreme Court over the past 5 years, I end up summarizing as followings. First, since 9/11 attacks on American soil, the terrorism related cases have been on the rise. That is, people have been detained or jailed for a long time without charges against them brought up. Such tendency reflects the recent mishaps where the legal protection of human rights can be ignored as long as the government does that in the name of anti-terrorism. The practice of detaining suspects without initiating any procedures against them is deeply rooted in a system called "Material Witness" where the government is allowed to detain people without prosecuting them as long as the people of interest is suspected of grave wrongdoing against the government. Second, there have been many cases on the right to assistance of counsel although it has been proved many times that it is nearly impossible for the accused that the assistance that s/he got from his/her own counsel was ineffective. Third, there have been many important cases on the Confrontation Right. Since the Right is related with hearsay evidence, it is worthwhile to look into. Fourth, there have been some cases on search & seizure where reasonableness of such measures can be or should be acknowledged. Fifth, there have been some cases on sentencing guideline since United States v. Booker decision where the Court announced that the Guideline is only advisory not mandatory in application. Sixth, there are some death penalty cases especially where minors are charged with heinous crimes. The whole matter is related with the criminal policy on whether minors can be charged and punished as adults just because their acts of crimes were grave in its magnitude. Seventh, there are some jury instruction cases.