Digital Commons Network^™

Adult Survivors Of Childhood Sexual Abuse And The Statute Of Limitations: The Need For Consistent Application Of The Delayed Discovery Rule, Gregory G. Gordon

Pepperdine Law Review

No abstract provided.

Book Review Of The Collapse Of American Criminal Justice, By William J. Stuntz, Andrea Roth

Journal of Legal Education

No abstract provided.

It Is Broken: Breaking The Inertia Of The Exclusionary Rule, L. Timothy Perrin, H. Mitchell Caldwell, Carol A. Chase

Pepperdine Law Review

No abstract provided.

The Optimum Remedy For Constitutional Breaches: Multiaccessed Civil Penalties In Equity, Robert C. Fellmeth

Pepperdine Law Review

No abstract provided.

The Exclusionary Rule: Fix It, But Fix It Right - A Critique Of If It's Broken, Fix It: Moving Beyond The Exclusionary Rule, Gregory D. Totten, Peter D. Kossoris, Ebbe B. Ebbesen

Pepperdine Law Review

No abstract provided.

Administrative Replacements: How Much Can They Do?, Laurie L. Levenson

Pepperdine Law Review

No abstract provided.

An Invitation To Dialogue: Exploring The Pepperdine Proposal To Move Beyond The Exclusionary Rule, L. Timothy Perrin, H. Mitchell Caldwell, Carol A. Chase

Pepperdine Law Review

No abstract provided.

No Remedy For This Wrong? Analyzing The Appropriate Remedy For Violations Of California Penal Code § 834c, Jared W. Olen

Jared W. Olen

Article 36(1)(b) of the Vienna Convention on Consular Relations provides that a foreign national of a state-party has the right to have her consulate notified of her arrest upon detention. Many United Supreme Court and other federal courts have grappled with issues stemming from that right, including whether the treaty creates privately-enforceable rights. However, California was unique in that it enacted California Penal Code § 834c, which codifies as state law the right to consular notification.

While this codification precludes much discussion about privately-enforceable rights, the statute is, however, silent on what remedy should be applied if law enforcement violate …

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Pepperdine Law Review

No abstract provided.

Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Aviva A. Orenstein, Tamara Rice Lave

Aviva A. Orenstein

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on …

Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Aviva A. Orenstein

Aviva A. Orenstein

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on …

Death And Rehabilitation, Meghan J. Ryan

Meghan J. Ryan

While rehabilitation is reemerging as an important penological goal, the Supreme Court is eroding the long-revered divide between capital and non-capital sentences. This raises the question of whether and how rehabilitation applies in the capital context. Courts and scholars have long concluded that it does not—that death is completely irrelevant to rehabilitation. Yet, historically, the death penalty in this country has been imposed in large part to induce the rehabilitation of offenders’ characters. Additionally, there are tales of the worst offenders transforming their characters when they are facing death, and several legal doctrines are based on the idea that death …

The Contradictory Stance On Jury Nullification, Kenneth J. Duvall

Kenneth J Duvall

Arguments about jury nullification in both courts and academia proceed under the assumption that either proponents and opponents of nullification could decisively carry the day. But as current Supreme Court law stands, nullification is at once prohibited and protected. This Article shines a light on the uneasy, confusing compromise in the doctrine, and finds that the two ways out of the dilemma—fully embracing nullification, or rejecting it—are equally taboo to the American legal mind. In Part I, this Article briefly explains the contested history of nullification. In Part II, it examines modern courts’ intermittent recognition of nullification. Part III then …

Law And Justice On The Small Screen, Jessica Silbey

Books

'Law and Justice on the Small Screen' is a wide-ranging collection of essays about law in and on television. In light of the book's innovative taxonomy of the field and its international reach, it will make a novel contribution to the scholarly literature about law and popular culture. Television shows from France, Canada, the United Kingdom, Germany, Spain and the United States are discussed. The essays are organised into three sections: (1) methodological questions regarding the analysis of law and popular culture on television; (2) a focus on genre studies within television programming (including a subsection on reality television), and …

Testimony For Sale: The Law And Ethics Of Snitches And Experts, George C. Harris

Pepperdine Law Review

No abstract provided.

A Turbulent Adolescence Ahead: The Icc’S Insistence On Disclosure In The Lubanga Trial, Christodoulos Kaoutzanis

Christodoulos Kaoutzanis

The completion of the first trial at the International Criminal Court (‘ICC’), against Thomas Lubanga Dyilo, was a great milestone for international criminal justice. Despite this obvious accomplishment, this paper argues that the Trial Chamber’s solutions to two evidentiary problems will restrict the ICC’s potential to effectively hear future cases. First, this paper presents the details behind the two evidentiary problems of disclosure, that of exculpatory confidential information and that of the identities of the Prosecutor’s intermediaries. This analysis is undertaken in an exhaustive manner, in order to highlight the challenges that the Prosecutor faced and the manner in which …

Right To Counsel/Criminal Law--Wishing For Rights: Interpreting The Article 12 Right To Counsel In Massachusetts In The Aftermath Of Montejo V. Louisiana, Raquel E. Babeu

Western New England Law Review

This Note reviews Montejo v. Louisiana (2009) and discusses its implications on Article 12 of the Massachusetts Declaration of Rights, particularly related to post-arraignment waivers of a defendant’s right to counsel at a police-initiated interrogation. Montejo’s appeal relied upon a bright-line rule (Jackson rule) established 26 years before, which makes post-arraignment waivers of a defendant’s right to counsel at a police-initiated interrogation presumptively invalid. In Montejo, the Supreme Court did away with the Jackson rule, while allowing that a state may continue to adhere to the Jackson rule under its state constitution.

The Author finds that historically the right to …

Admissibility Of Dna Evidence: Italy Under Attack, Adina Rosenfeld

Adina Rosenfeld

The purpose of this paper is to compare the differences and similarities in the evidentiary rules for DNA in Italy and in the United States in the light of their two different legal traditions. This note will compare American and Italian rules of evidence and procedure for the admissibility of DNA in criminal trials and analyze the most relevant differences between the two systems. Based on this comparison, the note will argue that Amanda Knox would not have been convicted of murdering her roommate in American lower court because the DNA evidence would not have been admissible. In Italy, Knox …

The Impact Of Daubert On The Admissibility Of Behavioral Science Testimony, Henry F. Fradella, Adam Fogarty, Lauren O'Neill

Pepperdine Law Review

No abstract provided.

High Expectations And Some Wounded Hopes: The Policy And Politics Of A Uniform Statute On Videotaping Custodial Interrogations, Andrew E. Taslitz

Northwestern Journal of Law & Social Policy

Much has been written about the need to videotape the entire process of police interrogation of suspects. Videotaping discourages abusive interrogation techniques, improves police training in proper techniques, reduces frivolous suppression motions, and improves jury decision making about the voluntariness and accuracy of a confession. Despite these benefits, only a small number of states have adopted legislation mandating electronic recording of the entire interrogation process. In the hope of accelerating legislative adoption of this procedure and of improving the quality of such legislation, the Uniform Law Commission (ULC) ratified a uniform recording statute for consideration by the states. I was …

Fred Zain, The Csi Effect, And A Philosophical Idea Of Justice: Using West Virginia As A Model For Change, Kathleen Keough Griebel

West Virginia Law Review

No abstract provided.

The Right To Remain Silent: Addressing A Government Attorney Client Privilege In The Context Of A Grand Jury Subpoena, Matan Shmuel

Matan Shmuel

This article deals with the circuit split over whether a government agency can use government attorneys to conceal what would otherwise become public information. Often, a government agency representative might discuss with nearby agency counsel personal legal information outside the scope of their employment. Courts are split over whether this is privileged or not. My article proposes a solution to the split by implementing a factor test which takes into account the government interest in confidentiality, the public need for disclosure, and the ability of the grand jury to find the information elsewhere.

Taking A Stand On Taking The Stand: The Effect Of A Prior Criminal Record On The Decision To Testify And On Trial Outcomes, Theodore Eisenberg, Valerie P. Hans

Valerie P. Hans

This article uses unique data from over 300 criminal trials in four large counties to study the relations between the existence of a prior criminal record and defendants testifying at trial, between testifying at trial and juries' learning about a criminal record, and between juries' learning about a criminal record and their decisions to convict or acquit. Sixty percent of defendants without criminal records testified compared to 45 percent with criminal records. For testifying defendants with criminal records, juries learned of those records in about half the cases. Juries rarely learned about criminal records unless defendants testified. After controlling for …

Science In The Jury Box: Jurors' Views And Understanding Of Mitochondrial Dna Evidence, Valerie P. Hans, David H. Kaye, B. Michael Dann, Erin J. Farley, Stephanie Albertson

Valerie P. Hans

This article describes parts of an unusually realistic experiment on the comprehension of expert testimony on mitochondrial DNA (mtDNA) sequencing in a criminal trial for robbery. Specifically, we examine how jurors who responded to summonses for jury duty evaluated portions of videotaped testimony involving probabilities and statistics. Although some jurors showed susceptibility to classic fallacies in interpreting conditional probabilities, the jurors as a whole were not overwhelmed by a 99.98% exclusion probability that the prosecution presented. Cognitive errors favoring the defense were more prevalent than ones favoring the prosecution. These findings lend scant support to the legal argument that mtDNA …

A Witness Against Himself: Use And Derivative Use Immunity And Prosecutorial Discretion, John B. Plimpton Mr.

JOHN B. PLIMPTON

In Kastigar v. United States, the Supreme Court held that in order to compel testimony containing self-incriminating information from a witness (1) who is not a criminal defendant and (2) has invoked the privilege against self-incrimination, the government must grant the witness immunity from “use and derivative use” of the testimony in a subsequent criminal proceeding against him. The federal circuits are split on the scope of protection afforded by this type of immunity. Some circuits construe use and derivative use immunity to prohibit any and all uses the government may make of his immunized testimony. Other circuits maintain that …

Confronting The Shadow: Is Forcing A Muslim Witness To Unveil In A Criminal Trial A Constitutional Right, Or An Unreasonable Intrusion?, Steven R. Houchin

Pepperdine Law Review

No abstract provided.

Evidence-Based Prosecution & Strangulation-Specific Training: Obtaining Justice For Victims Of Strangulation In Domestic Violence, Brigitte P. Volochinsky

Brigitte P Volochinsky

Strangulation accounts for 10-percent of violent deaths in the United States, with six female victims to every male victim. A common form of abuse in domestic violence, strangulation may result in many harmful health effects and it often indicates either an ongoing pattern of abuse or it foreshadows escalating violence. Yet, strangulation is often minimized by the criminal justice system, including law enforcement officials, emergency room medical personnel, and prosecutors, who equate strangulation with a slap on the face. The phenomenon of minimizing a violent and life-threatening act occurs for two reasons; first, and most importantly, victims of strangulation often …

To Testify Or Not To Testify: The Dilemma Facing Children With Multiple Cases Before The Same Judge In Delinquency Court., Katherine I. Puzone

Katherine I. Puzone

In Juvenile Court, children often have more than one case pending, especially children living in group foster homes and those at alternative schools. In many jurisdictions, all of a child’s cases are assigned to the same judge. If the child is arrested at a later time, the new case is also assigned to the same judge. That means that if a child exercises her right to go to trial in each case, the same judge will hear every case. If they are set for trial on the same day, and they often are, the judge will hear each case in …

Rape Trauma, The State, And The Art Of Tracey Emin, Yxta M. Murray

Yxta M. Murray

Prosecutors use “rape trauma syndrome” evidence at rape trials to explain victims’ “counterintuitive” behaviors and demeanors, such as late reporting, denying their rapes, returning to the scenes of their attacks, and lack of emotional affect. Courts and experts, in instructions and testimony, usually describe victim reticence as a product of “shame” or “trauma.” Feminist critics of R.T.S. evidence posit that it is based on incomplete evidence, because most rapes are unreported. Furthermore, they object to its condescending, sexist, and colonial construction of rape victims and their emotions. In this Article, I respond to feminist critics by studying the work of …