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Circumventing Congress: How The Federal Courts Opened The Door To Impeaching Criminal Defendants With Prior Convictions, Jeffrey Bellin

Faculty Publications

This Article spotlights the flawed analytical framework at the heart of the federal courts’ approach to one of the most controversial trial practices in American criminal jurisprudence — the admission of prior convictions to impeach the credibility of defendants who testify. As the Article explains, the flawed approach is a byproduct of the courts’ reliance on a five-factor analytical framework to implement the governing legal standard enacted by Congress in Federal Rule of Evidence 609. Tracing the evolution of the fivefactor framework from its roots in pre-Rule 609 case law, the Article demonstrates that the courts’ reinterpretation of the framework …

State Regulation Of Sexuality In International Human Rights Law And Theory, Aaron Xavier Fellmeth

William & Mary Law Review

In Part I, this Article presents the first published, worldwide survey of international practice in interpreting and applying various international human rights norms to the issue of sexual freedom, with a special emphasis on the rights to privacy, family life, and freedom from arbitrary discrimination based on sexual orientation. Although progress toward general recognition of such rights by international authorities and states has been extremely rapid over a very short period, such recognition continues to vary geographically and according to the subject matter. For example, some rights, such as the right to consensual, adult, private intercourse have achieved more widespread …

Table Of Contents (V. 50, No. 3)

William & Mary Law Review

No abstract provided.

I'Ll Make You A Deal: How Repeat Informants Are Corrupting The Criminal Justice System And What To Do About It, Emily Jane Dodds

William & Mary Law Review

No abstract provided.

How Wide Should The Actual Innocence Gateway Be? An Attempt To Clarify The Miscarriage Of Justice Exception For Federal Habeas Corpus Proceedings, Jennifer Gwynne Case

William & Mary Law Review

No abstract provided.

Murderous Madonna: Femininity, Violence, And The Myth Of Postpartum Mental Disorder In Cases Of Maternal Infanticide And Filicide, Heather Leigh Stangle

William & Mary Law Review

No abstract provided.

The Docket (October 17, 2008), William & Mary Law School

The Docket

No abstract provided.

Spare The Rod, Save The Child: Reviewing Corporal Punishment Through The Lens Of Domestic Violence, Sarah Brady Brundage

W&M Law Student Publications

No abstract provided.

Maintaining The Presumption Of Innocence In Date Rape Trials Through The Use Of Language Orders: State V. Safi And The Banning Of The Word "Rape", Jason Wool

William & Mary Journal of Race, Gender, and Social Justice

This note evaluates the use of language orders in date rape trials in which the defense is consent through a case study of State v. Safi, in which Tory Bowen claims that Pamir Safi date raped her. In that case, the trial judge granted a motion by the defense to prevent the prosecution and any of their witnesses from using words such as "rape" and "sexual assault." Using State v. Safi as a starting point, the author examines the use of such trial orders from the perspective of both defendants and victims. The author concludes that a modified version of …

Rethinking Drug Inadmissibility, Nancy Morawetz

William & Mary Law Review

Changes in federal statutory policy, state criminal justice laws, and federal enforcement initiatives have led to an inflexible and zero tolerance immigration policy with respect to minor drug use. This Article traces the evolution of the statutory scheme and how various provisions in state and federal law interact to create the current policy. It proceeds to investigate the broad reach of these rules if they are fully enforced, in light of the widespread lifetime experience with minor drug use both in the United States and abroad. Drawing on the experience of law enforcement agencies that have abandoned similarly rigid rules, …

Initiating A New Constitutional Dialogue: The Increased Importance Under Aedpa Of Seeking Certiorari From Judgments Of State Courts, Giovanna Shay, Christopher Lasch

William & Mary Law Review

The Antiterrorism and Effective Death Penalty Act (AEDPA) contains a provision restricting federal courts from considering any authority other than holdings of the Supreme Court in determining whether to grant a state prisoner's petition for habeas corpus. Through an empirical study of cert filings and cases decided by the Supreme Court, we assess this provision's impact on the development of federal constitutional criminal doctrine. Before AEDPA and other restrictions on federal habeas corpus, lower federal courts and state courts contributed to doctrinal development by engaging in a "dialogue" (as described by Robert M. Cover and T. Alexander Aleinikoff in a …

Death By A Thousand Cases: After Booker, Rita, And Gall, The Guidelines Still Violate The Sixth Amendment, David C. Holman

William & Mary Law Review

No abstract provided.

Creeping By Moonlight: A Look At Civil Commitment Laws For Sexually Violent Predators Through The Lens Of The Yellow Wallpaper, Heather R. Willis

William & Mary Journal of Race, Gender, and Social Justice

This note examines the constitutional and social implications of the civil commitment of sexually violent predators in the United States. These commitments are implemented on sexual offenders deemed too dangerous to be placed back into society after serving prison sentences and have been gaining popularity across the United States. Currently, these commitments are considered constitutional in limited circumstances by the Supreme Court, but while these commitments are meant for only the most dangerous and least controllable individuals, the public reaction to sexual offenses increases the possibility these commitments will be misused. As a part of examining this commitment process, this …

Changing State Laws To Prohibit The Display Of Hangman's Nooses: Tightening The Knot Around The First Amendment?, Allison Barger

William & Mary Bill of Rights Journal

No abstract provided.

2008-2009 Supreme Court Preview: Schedule, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Significance (If Any) For The Federal Criminal Justice System Of Advances In Lie Detector Technology, Jeffrey Bellin

Faculty Publications

Against a backdrop of accelerating developments in the science of lie detection certain to reopen the debate on the reliability and therefore admissibility of lie detector evidence in the federal courts, this Article examines whether the prohibition on hearsay evidence (or other evidentiary objections) will preclude admissibility of even scientifically reliable lie detector evidence. The Article concludes that the hearsay prohibition, which has been largely ignored by courts and commentators, is the primary obstacle to the future admission of scientifically valid lie detector evidence. The Article also suggests a potential solution to the hearsay problem that may allow admission of …

The Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, Stephen A. Saltzburg, Daniel J. Capra

William & Mary Law Review

In Agard v. Portuondo, the United States Supreme Court held that a prosecutor did not violate a testifying defendant's constitutional rights by inviting the jury to infer from the defendant's presence at trial that the defendant altered his own version of events to accord with other witnesses' testimony. Justice Scalia's opinion for the Court emphasized that jurors might well draw the inference even without a prosecutor asking them to do so. Although Agard is viewed as giving an advantage in a criminal trial to the government, this Article considers how Agard might be used to allow defense counsel to introduce …

The Advocate (Vol. 5, Issue 12)

Student Newspaper (Amicus, Advocate...)

No abstract provided.

Improving The Reliability Of Criminal Trials Through Legal Rules That Encourage Defendants To Testify, Jeffrey Bellin

Faculty Publications

Reflecting a traditional bias against defendants' trial testimony, the modern American criminal justice system, which now recognizes a constitutional right to testify at trial, unabashedly encourages defendants to waive that right and remain silent. As a result, a large percentage of criminal defendants decline to testify, forcing juries to decide the question of the defendant's guilt without ever hearing from the person most knowledgeable on the subject.

This Article contends that the inflated percentage of silent defendants in the American criminal trial system is a needless, self-inflected wound, neither required by the Constitution nor beneficial to the search for truth. …

Misdemeanants, Firearms, And Discretion: The Practical Impact Of The Debate Over "Physical Force" And 18 U.S.C. § 922(G)(9), Adam W. Kersey

William & Mary Law Review

No abstract provided.

An Informational Approach To The Mass Imprisonment Problem, Adam M. Gershowitz

Faculty Publications

The United States is plagued by the problem of mass imprisonment, with its prison population having risen by 500% in the last three decades. Because the overwhelming majority of criminal cases are resolved through plea bargaining, there is room for prosecutors to reduce mass imprisonment by exercising their wide discretion. At present, prosecutors likely do not give much consideration to the overcrowding of America 's jails and prisons when making their plea bargain offers. However, if prosecutors were regularly advised of such overcrowding they might offer marginally lower sentences across the board. For instance, a prosecutor who typically offers a …

Political Judges And Popular Justice: A Conservative Victory Or A Conservative Dilemma?, George D. Brown

William & Mary Law Review

Most of the judges in America are elected. Yet the institution of the elected judiciary is in trouble, perhaps in crisis. The pressures of campaigning, particularly raising money, have produced an intensity of electioneering that many observers see as damaging to the institution itself. In an extraordinary development, four justices of the Supreme Court recently expressed concern over possible loss of trust in state judicial systems. Yet mechanisms that states have put in place to strike a balance between the accountability values of an elected judiciary and rule of law values of unbiased adjudication are increasingly invalidated by the federal …

The Advocate (Vol. 5, Issue 9)

Student Newspaper (Amicus, Advocate...)

No abstract provided.

Women In Federal Prison: Pathways In, Programs Out, Kim White

William & Mary Journal of Race, Gender, and Social Justice

One of the fastest growing populations in most correctional systems is female offenders and the impact of these rising numbers is significant. The author speaks to the rising female population numbers, the types of crimes and behaviors that lead to their incarceration, the characteristics of female offenders, the impact their incarceration has on their families and children, and how gender responsive programming is pivotal to their effective and successful reentry into society.

Hard Labor: The Legal Implications Of Shackling Female Inmates During Pregnancy And Childbirth, Geraldine Doetzer

William & Mary Journal of Race, Gender, and Social Justice

Despite international human rights guidelines that prohibit the practice, thirty-eight states and the Federal Bureau of Prisons currently allow corrections officials to shackle pregnant inmates during the third trimester of pregnancy. Of these, twenty-three states and the Bureau also allow restraints to be used during active labor. Only two state legislatures, Illinois and California, have addressed the issue of using physical restraints on pregnant inmates; the vast majority of states rely on corrections officials to craft policy.

This article analyzes both states' justifications for shackling policies as well as the Constitutional and human rights arguments that have been posed by …

Speech: Latinas And Their Families In Detention: The Growing Intersection Of Immigration Law And Criminal Law, Sandra Guerra Thompson

William & Mary Journal of Race, Gender, and Social Justice

In this article, Professor Sandra Guerra Thompson explores the growing enforcement of immigration law within the interior of the United States and the growing intersection of the criminal justice system and immigration law. Through the use of worksite enforcement sweeps and immigration screening by state and local law enforcement, growing numbers of undocumented persons are being taken into custody by federal immigration officials. She examines the plight of women and families held in detention centers under what are often deplorable conditions. Ironically, immigration detention centers offer fewer resources than those available in most state prisons. The immigration law judicial system …

The Caged Canary, Elizabeth Alexander

William & Mary Journal of Race, Gender, and Social Justice

The United States has experienced an explosion in the number of people in prison, an explosion that cannot be attributed to changes in the crime rate, but rather reflects changes in public policy, particularly sentencing policy regarding drug crimes. These changes have had a devastating impact on African-American communities. The changes have also adversely affected the social, economic, and political culture of the nation as a whole. The rate of increase in incarceration for women prisoners has been disproportionately high, although women are generally imprisoned for non-violent crimes and have lower recidivism rates than men. Once in prison, women are …

Women In Prison: International Problems And Human Rights Based Approaches To Reform, Jenni Gainsborough

William & Mary Journal of Race, Gender, and Social Justice

The growth in prison populations is a world-wide phenomenon, and within the overall growth rate, many countries are seeing a disproportionate rate of increase among women. Despite differences in culture and resources, women everywhere face similar problems in prison systems, which have been designed primarily by and for men. These include sexual abuse, lack of appropriate medical care, loss of children and breakdown of families. The United States leads the world in both the overall size of its prison population and its rate of incarceration. Advocates for reform are increasingly turning to international human rights laws, standards and norms to …

Women And The Death Penalty: Racial Disparities And Differences, Harry Greenlee, Shelia P. Greenlee

William & Mary Journal of Race, Gender, and Social Justice

The death penalty in America has been studied, discussed, and written about extensively. The vast majority of researchers, however, have focused their study of the death penalty, or capital punishment, on male prisoners. This article examines the data related to women on death row since 1973, with particular attention to similar problems that have been documented for men, while highlighting racial differences and/or racial disparities where found. The subjects were 157 women who received death row sentences, forty-nine women currently on death row, and the eleven women executed since 1973. The data demonstrated that some racial disparities do exist with …

Public Policy, Women, And Confinement: A Plea For Reasonableness, Peter M. Carlson

William & Mary Journal of Race, Gender, and Social Justice

This veteran correctional administrator reviews the explosion of numbers of female offenders confined in the United States today. The article explores the myriad causes and effects of this shift in public policy and notes the negative impact of today's policy outcomes on individual offenders, correctional systems, and our society. The author argues for a modification of policy to a more rational approach to judicial sentencing.