Digital Commons Network^™

Plea Bargaining As Dialogue, Rinat Kitai-Sangero

Akron Law Review

This Article proposes turning plea bargaining into a dialogical process, which would result in lessening a defendant’s sense of alienation during the progress of the criminal justice procedure. This Article argues that plea bargaining constitutes an opportunity to circumvent restrictions existing during a trial or outside a trial, such as the inadmissibility of character evidence and the need for the victim's consent in restorative justice proceedings. This Article proposes to navigate the plea bargaining process in a way that creates a real dialogue with defendants. Such a dialogue can reduce the sense of alienation that defendants feel from their position …

Liberty At The Borders Of Private Law, Donald J. Smythe

Akron Law Review

Liberty is both dependent upon and limited by the State. The State protects individuals from the coercion of others, but paradoxically, it must exercise coercion itself in doing so. Unfortunately, the reliance on the State to deter coercion raises the possibility that the State’s powers of coercion might be abused. There is, not surprisingly, therefore, a wide range of literature on the relationship between law and liberty, but most of it focuses on the relationship between public law and liberty. This Article focuses on the relationship between private law and liberty. Private laws are enforced by courts. Since the judiciary …

Infanticide - Requirement That The Victim Be Born Alive; State V. Dickinson, Richard R. Wilfong

Akron Law Review

This case is unique, because it is the first time a court has imposed a conviction of homicide for the death of a viable unborn fetus caused by an unlawful but unintentional act. The evidence is persuasive beyond a reasonable doubt that the defendant was operating a motor vehicle while under the influence of alcohol, without due regard for the safety and rights of others, and in such a manner as to endanger the life or property of other persons in lawful use of the streets and highways. The soundness of the court's finding depends upon a determination of the …

The Administratioin Of Criminal Justice In The U.S.S.R., John H. Shoemaker

Akron Law Review

The above procedure in the United States is conducted as follows: on the state and local level by the local police departments, with the arraignment and indictment being handled by the local county prosecutor; or on the federal level by federal police agencies operating through the U. S. attorney. The incarceration of the convicted person is handled by county or state agencies on the one hand, or federal penal institutions on the other. One similarity between the Russian System and ours is that in United States criminal practice on the federal level the coordination and uniformity essential to reform and …

Book Review: The Role Of Psychiatry In Law, Leslie J. Martin

Akron Law Review

If you ask the man on the street about his views on the criminal law, typically his response will include a commentary on some notorious crime. What impresses him most about that crime? Commonly his answer will be that he was amazed that the "murderer" was able to escape conviction by invoking the defense of insanity. This view is remarkably prevalent. It is the same view which led Queen Victoria to ask Parliament to formulate the rigid M'Naghten Rule in 1843. This test of insanity survives to the present day, perplexing many members of the legal profession and alienating most …

Application Of Ohio Post-Conviction Procedure - Effect Of Prior Judgment On.; Coley V. Alvis, Thomas A. Geraci Jr.

Akron Law Review

In the per curiam decision of Coley v. Alvis' the United States Court of Appeals for the Sixth Circuit reversed an Ohio District Court decision dismissing Coley's petition for habeas corpus for failure to exhaust his state remedies. The circuit Court remanded, stating that it would be futile for petitioner to attempt to void his conviction under the Ohio post-conviction statute because of the narrow limits placed on it by the state courts and that there was consequently no longer any effective state remedy. Since the grounds that petitioner set forth to sustain his writ did not fall within any …

Book Review: Justice Without Trial: Law Enforcement In A Democratic Society, Allan S. Hoffman

Akron Law Review

It is a well recognized fact that the vast bulk of criminal convictions are obtained by inducing the accused to plead guilty. Consequently, the natural conclusion to be drawn is that American criminal justice is for the most part administered outside of the judiciary-hence the title of this book: Justice Without Trial. The work is an examination by a sociologist (narrower in scope than the title might indicate) into the operation of a city police department, and ". . . how those who are charged with enforcing criminal law in a constitutional democracy come to interpret rules of constraint-thereby giving …

Ohio's Post-Conviction Appeal Remedy, Timothy J. Murty

Akron Law Review

Ohio has recently adopted legislation intended to provide a prisoner with a means of testing, in the court which originally imposed sentence, the constitutional validity of his sentence. This legislation is intended to provide a remedy which will supplement the writ of habeas corpus. Jurisdiction in habeas corpus proceedings lies in the court of the county in which the prisoner is confined. In recent years the courts located in counties containing state correctional institutions have been deluged with habeas corpus petitions.

Criminal Responsibility: Knowledge, Will And Choice, Robert J. Willey

Akron Law Review

The Court acknowledged that the M'Naghten formula was the recognized test for insanity, that it was a test of criminal responsibility rather than a medical test of insanity, that it has been followed in a classic fashion, that each doctor had compressed his final conclusion into the required M'Naghten strait jacket, and that the defense had proved by the greater weight of the evidence that the defendant was not guilty by reason of insanity.

Both of these courts claimed to be following M'Naghten, though the Colby court decried its present use, and the Keaton court approved an instruction that included …

The Admissibility Of Polygraph ("Lie Detector") Evidence Pursuant To Stipulation In Criminal Proceedings, Bruce C. Heslop

Akron Law Review

American courts have traditionally held that evidence pertaining to the results of a lie-detector test is inadmissible in a criminal proceeding on behalf of either the prosecution or defense….In recent years, however, a few jurisdictions have withdrawn from the traditional approach and have admitted lie-detector evidence in limited situations, notwithstanding objection by the adverse party….The decision of whether or not to adopt the approach presented here must critically evaluate the potential value of polygraph evidence along with its potential dangers. In so doing, the courts of Ohio should determine whether a procedure may be devised to maximize the value and …

Book Review: Narcotics And Drub Abuse; By Samuel F. Levine, Raymond T. Royko

Akron Law Review

O NE OF THE MOST urgent school problems of the early 1970's has little to do with formal education or the old-fashioned triad of reading, writing, and arithmetic. Instead, the key words are "uppers," "downers," "grass," and "smack"--amphetamines, barbiturates, marijuana and heroin, and there has been a steady decline of the age at which youngsters are introduced to them on what is known as the drug scene. In July, 1969, President Nixon called attention to the rise by almost 800% of juvenile drug arrests and stated that "within the last decade the abuse of drugs has grown from essentially a …

The Reach Of The Law: Sin, Crime And Poor Taste, Alexander B. Smith, Harriet Pollack

Akron Law Review

The past decade has been a period of intensive reevaluation of the law. The criminal law, in particular, has been subjected to an especially intensive criticism. These attacks fall largely into two categories: criticisms of the legitimacy of our penal codes, and criticisms of their efficiency.
Starting with the Civil Rights Movement of the Kennedy era with its heavy emphasis on civil disobedience as a tool of protest, the legitimacy of many of our laws was called into question. When Rosa Parks sat in the front of the bus in Montgomery, Alabama, she was not simply breaking the law; she …

Order In The Courts Revisited: Progress And Prospects Of Controlling Delay In The Tort Jury Litigation Process, 1966-1973, James G. France

Akron Law Review

Early in 1969, under a grant from the Knight Foundation, measurement of delay in litigation in six northeastern Ohio counties was undertaken by a study group from University of Akron School of Law. A year later the group reported its findings as to delay in the civil jury, criminal and appellate fields in a 200-page report: Order In The Courts.

The study could show only how long it took each of the six different common pleas courts, with widely varying population loads, with differing internal organization, age and experience of judges and amount of staff support, to dispose of groups …

Book Review: Justice Is The Crime, James G. France

Akron Law Review

[R]eform suggestions are bold, sometimes to the point of brashness. Many of them are urgently needed, but few are new. They bear a curious resemblance to those offered by the National Conference on the Judiciary in its Concensus Report, and to some of the more recent reports and recommendations of state court studies, all financed by L.E.A.A. grants, some of them quite substantial. It is as if the real source of the proposals was in the Department of Justice in Washington, all for the benefit of the untutored provincials. These suggestions are of three types: Those which are untried and …

Juvenile Court And Direct Appeal From Waiver Of Jurisdiction In Ohio, Thomas F. Haskins Jr.

Akron Law Review

ANY DISCUSSION OF SPECIFIC ASPECTS of juvenile law necessarily requires that at least a brief inquiry be made into the history of its development. This becomes apparent when it is realized that juvenile law is not the product of a neat and orderly background, but rather the result of numerous sociological and economic conditions surrounding not only individual communities but the whole society. It is with this motivation that the statutory creation of juvenile law builds and continues to thrive. And, it is for this reason that this comment concerning the loss of the benefits of the juvenile laws through …

Executive Privilege: A Review Of Berger, R. H. Clark

Akron Law Review

RAOUL BERGER HAS ONCE AGAIN placed within a solidly professional framework an issue of considerable public interest and debate. As was the case with impeachment,' Berger's scholarly study on executive privilege brings to the controversy surrounding the issue a much needed analytical construct and massing of evidence which can only result in a greater level of general understanding. Although it is not accurate to suggest that Berger is neutral on the topic, since he published a significant study as far back as 1965 attacking the concept, 2 his method of massing every conceivable argument and piece of evidence on both …

Federal Income Tax Developments: 1974

Akron Law Review

FEDERAL INCOME TAX DEVELOPMENTS: 1974 is the second of an annual series of articles to be published in the Winter Issue of the AKRON LAW REVIEW. The thrust of this article is not only to identify the new developments, but also to trace these concepts through their formative stages. A synopsis of recent legislation appears before the TABLE OF CONTENTS, and a TABLE OF CASES, TABLE OF INTERNAL REVENUE CODE SECTIONS, and TABLE OF RECENT REVENUE RULINGS can be found following the text of the article.

Legislative Response To Furman V. Georgia - Ohio Restores The Death Penalty, Jeffrey T. Heintz

Akron Law Review

THE ABOVE REPRESENTS the first inclusion of a prohibition against cruel and unusual punishments in any charter of any colony in the New World. Believed to be traceable to the Magna Charta, such a prohibition is now embodied in our eighth amendment. It has been the subject of much litigation and construction, most recently in Furman v. Georgia, where the death penalty, as then imposed, was declared to be invalid as cruel and unusual. Some states, including Ohio, have responded with new statutes controlling imposition of the death penalty in order to circumvent the Furman proscriptions. Only time will tell …

Civil Rights In The Burger Court Era, Janice Gui

Akron Law Review

THE DECADE OF the sixties was a turbulent one. It began in a spirit of hope. In the midst of a period of sustained prosperity, John Kennedy created the Peace Corps, Lyndon Johnson launched his Great Society, and Congress passed the Civil Rights Act of 1964 so that everyone could participate in the good life. Under Earl Warren the United States Supreme Court complemented the liberal legislation by championing the rights of the individual who had been neglected by the mainstream of society-the criminal suspect, the member of a minority group, and the poor. But the dream was not fulfilled, …

Civil Rights In The Burger Court Era, Janice Gui

Akron Law Review

THE DECADE OF the sixties was a turbulent one. It began in a spirit of hope. In the midst of a period of sustained prosperity, John Kennedy created the Peace Corps, Lyndon Johnson launched his Great Society, and Congress passed the Civil Rights Act of 1964 so that everyone could participate in the good life. Under Earl Warren the United States Supreme Court complemented the liberal legislation by championing the rights of the individual who had been neglected by the mainstream of society-the criminal suspect, the member of a minority group, and the poor. But the dream was not fulfilled, …

The Right To Resist An Unlawful Arrest: Judicial And Legislative Overreaction?, James B. Lindsey

Akron Law Review

THIS COMMENT will focus on the subject of the right to resist an unlawful arrest. The choice of this topic is the result of a change in the common law rule in a few key states which may herald the demise of this rule in all of the states. It is also of particular note that the State of Ohio has seen fit to alter its position on the common law rule recently.' In its essence, this writing will address itself to the clash between the American legal tradition of providing an effective legal remedy for every actionable harm or …

The Right To Resist An Unlawful Arrest: Judicial And Legislative Overreaction?, James B. Lindsey

Akron Law Review

THIS COMMENT will focus on the subject of the right to resist an unlawful arrest. The choice of this topic is the result of a change in the common law rule in a few key states which may herald the demise of this rule in all of the states. It is also of particular note that the State of Ohio has seen fit to alter its position on the common law rule recently.' In its essence, this writing will address itself to the clash between the American legal tradition of providing an effective legal remedy for every actionable harm or …

A Reappraisal Of The Indigent's Right Of Access To Bankruptcy Proceedings, Timothy E. Gammon

Akron Law Review

IN 1963, Robert F. Kennedy stated, "To a serious extent, the scales of justice in this country are weighed against the poor"' One year later, the Office of Economic Opportunity was created, which helped balance the scale in some areas by providing legal service programs2 for indigents. Nevertheless, the enormous need of legal service for indigents has not and cannot be met under present programs.' The 1964 legal service program failed to provide money for fees and court costs in judicial and administrative proceedings so petitioners who could not proceed in jorma pauperis were denied access to those proceedings. No …

Ohio's New Rape Law: Does It Protect Complainant At The Expense Of The Rights Of The Accused?, Barbara Child

Akron Law Review

WITH THE ENACTMENT of Am. Sub. S.B. 144,1 Ohio has now joined the small group of states' that are revising their rape laws in measures significant enough to indicate that a trend may be underway. Ohio's new law is designed to protect victims of sex offenses: it contains major provisions affecting (1) the definition of rape itself; (2) new services for victims; (3) record suppression; (4) evidence rules; and (5) sentencing for certain offenders. The new law attempts to secure complainants' rights to privacy and equal protection together with defendants' rights to a fair trial and due process; however, the …

A Legal Note On The Nixon Pardon: Equal Justice Vis-À-Vis Due Process, Luis Kutner

Akron Law Review

THE FIRST TWO MAJOR ACTS of the Ford Presidency-the offer of earned amnesty (at least insofar as draft resisters in the Vietnam conflict are concerned) and the pardon granted to former President Richard M. Nixonwere charitable, wise and just. This article, of course, will discuss the presidential pardon for Mr. Nixon.

Shifting The Burden Of Proving Self-Defense - With Analysis Of Related Ohio Law, Randy R. Koenders

Akron Law Review

Senate Bill Number 42 was introduced into the Ohio General Assembly on February 1, 1977. The bill provides that while the burden of proof for all elements of the criminal offense with which an individual is charged rests upon the prosecution, the burden of proof for affirmative defenses rests upon the defendant, and he must prove his affirmative defense by a preponderance of the evidence. Because the bill raises serious questions concerning placing the burden of persuasion with respect to affirmative defenses generally, and self-defense in particular, on the defendant, a study of the law and policy involved in shifting …

Separation Of Powers; Bill Of Attainder; Presidential Papers; Chief Executive's Right To Privacy; Nixon V. Administrator Of General Services, Patricia L. Spencer

Akron Law Review

In addressing itself to the constitutionality of the "Presidential Recording and Materials Preservation Act," the United States Supreme Court in Nixon v. Administrator of General Services (Nixon II) ruled for the first time on the permissible extent of congressional authority to regulate the disposition of official records and papers of a former chief executive. By its action, the Court undertook to reverse two hundred years of practice by past presidents.

First Amendment; Freedom Of The Press; Access Of News Media To County Jail; Houchins V. Kqed, Inc., Thomas W. Renwand

Akron Law Review

"Although United States history is replete with struggles over the rights and prerogatives of the press, until recently these disputes rarely made their way to the nation's highest court.' In the last several years the Supreme Court has been confronted with a number of important, complex questions dealing with the role of a free press in a free society.'"

The Supreme Court And The Press: Freedom Or Privilege?, Sandra Bradley

Akron Law Review

This comment will examine the Supreme Court's spring, 1978 decisions as they affected first amendment rights, and will assess their impact upon the press. Particular emphasis will be placed on Zurcher v. Stanford Daily as it affects first amendment, as well as fourth amendment, protections.

Criminal Justice Act Of 1964; State Malpractice Suit Against Appointed Counsel; Ferri V. Ackerman, Sandra J. Branda

Akron Law Review

The United States Supreme Court in Ferri v. Ackerman reversed the Pennsylvania Supreme Court and held that an attorney appointed by a federal judge to represent an indigent defendant in a federal criminal trial is not, as a matter of federal law, entitled to absolute immunity in a state malpractice suit brought against him by his former client. In a unanimous opinion, the Court decided that the function of appointed counsel is more closely analogous to that of private retained counsel, who enjoy no immunity from malpractice prosecution than to that of judges and prosecutors who have traditionally been accorded …