Digital Commons Network^™

Reasonable And Other Doubts: The Problem Of Jury Instructions, Robert C. Power

Robert C Power

No abstract provided.

Clueless: The Misuse Of Batf Firearms Tracing Data, David B. Kopel

David B Kopel

Sometimes the Bureau of Alcohol, Tobacco and Firearms traces the registered sales history of a gun which was used in a crime, or which has been seized by the police. Traced guns are not representative of the broader universe of crime guns. Accordingly, drawing public policy conclusions based on tracing data is unwise.

Prosecutorial Use Of Expert Testimony In Domestic Violence Cases: From Recantation To Refusal To Testify, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

This article discusses the use of expert testimony in prosecuting those charged with domestic abuse. Part I provides a background on the need and nature of expert testimony in domestic violence cases and the requirements for the admission of such expert testimony. It traces the development of the role of expert testimony in domestic violence cases from its initial exclusive use as a defense tool to support self-defense claims to its present use by prosecutors to explain a complainant's recantation or other puzzling behavior. Part II discusses the appellate cases that have addressed the admissibility and scope of expert testimony …

Mental Culpability And Prosecutorial Misconduct, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This Article argues that a prosecutor's intent is always relevant to the courts' analysis of misconduct, and that the courts should always consider a prosecutor's intent in determining whether a rule was violated and whether the verdict was prejudiced. Part II of this Article examines the use of the objective test to analyze a prosecutor's trial conduct. Part II offers several reasons courts give for avoiding inquiry into a prosecutor's mental culpability, analyzes those reasons, and concludes that although the application of an objective test is sufficient to correct misconduct in some instances, it does not foreclose application of a …

Private Bar Monitors Public Defense: Oversight Committee Sets Standards For Indigent Defense Providers, Adele Bernhard

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Private Financing Of Criminal Prosecutions And The Differing Protections Of Liberty And Equality In The Criminal Justice System, Joseph E. Kennedy

Faculty Publications

No abstract provided.

Changing Notions Of State Agency In International Law: The Case Of Paul Touvier, Claire Oakes Finkelstein

All Faculty Scholarship

No abstract provided.

The Gate Is Open But The Door Is Locked - Habeas Corpus And Harmless Error, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Brecht is a paradigm of the Rehnquist Court's result-oriented approach to habeas corpus and harmless error. The decision purports to be a principled application of the policies of finality, federalism, and judicial economy that underlay the Court's new habeas and harmless error jurisprudence. It is, in fact, an unwarranted and unprincipled extension of those policies. Depending on how the lower federal courts interpret and implement the decision, Brecht could have a devastating impact on the way state prosecutors and judges administer criminal justice, as well as the ability of state prisoners to redress constitutional violations.

Spelling Guilt Out Of A Record? Harmless-Error Review Of Conclusive Mandatory Presumptions And Elemental Misdescriptions, John M. Greabe

John M Greabe

Part I of this Article summarizes the history of harmless-error review. Part II explains more fully the constitutional infirmities generated by conclusive mandatory presumptions and elemental misdescriptions, and demonstrates that the unique nature of these infirmities complicates the question of how courts should review them for harmlessness. It also examines the Supreme Court's attempts to answer the questions of whether, and how, conclusive mandatory presumptions and elemental misdescriptions should be reviewed for harmlessness. In so doing, it focuses particularly on how these attempts have been undermined by the Court's failure to take account of the structural rights undermined by these …

A Moral Standard For The Prosecutor's Exercise Of The Charging Discretion, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This Essay does not attempt to retrace the subject of prosecutorial discretion from the standpoint of the controlling factors, doctrinal limitations, or norms of conduct applicable to prosecutors generally. Rather, it addresses the charging process in a narrower compass. It poses three hypothetical cases that present both realistic and recurrent challenges to the prosecutor's charging power. The first case de pends on a factual determination of a witness's reliability; the second case depends on a factual determination of a witness's truthfulness; the third case revolves around not a factual determination but, rather, a legal determination regarding the applicability of a …

Forensic Expertise In Dutch Criminal Procedure, Johannes F. Nijboer

Cardozo Law Review

No abstract provided.

The New Prosecutors, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The power and prestige of the American prosecutor have changed dramatically over the past twenty years. Three generalizations appropriately describe this change. First, prosecutors wield vastly more power than ever before. Second, prosecutors are more insulated from judicial control over their conduct. Third, prosecutors are increasingly immune to ethical restraints. Only the last point may provoke some controversy; the first two are easily documented, and generally accepted by the courts and commentators.

Part I of this article examines in greater detail this vast accretion of prosecutorial power, and explains how this transformation has resulted in a radical skewing of the …

The Most Fundamental Change In The Criminal Justice System: The Role Of The Prosecutor In Sentence Reduction, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

As every lawyer knows, the prosecutor is the most powerful figure in the American criminal justice system. The prosecutor decides whom to charge, what charges to bring, whether to permit a defendant to plead guilty, and whether to confer immunity. In carrying out this broad decision-making power, the prosecutor enjoys considerable independence. Indeed, one of the most elusive and vexing subjects in criminal justice has been to define the limits of the prosecutor’s discretion.

The Adversarial System At Risk, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The most ominous recent development affecting the balance of forces in the adversary system is the unprecedented attack by prosecutors on criminal defense lawyers themselves. Grand jury subpoenas to attorneys, law office searches, disqualification motions, fee forfeiture proceedings, and, most recently, IRS attempts to enforce currency-reporting regulations do not seem to be isolated occurrences or mere happenstance. Rather, perhaps inspired by Shakespeare's injunction in Henry VI to "kill all the lawyers," some prosecutors appear to have concluded that the most effective way to prevail in the battle against crime is to cripple the defense lawyers, particularly those who represent defendants …

What Was Discovered In The Quest For Truth?, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

Criminal discovery has outstripped Justice Brennan's claim of "mixed" results. His description of the twenty-five year transformation as merely "rapid" is too modest. From the picture in 1963, which he accurately describes as "quite a bleak one," discovery is, today, de rigueur in criminal cases. There is little to suggest a general reduction of criminal case discovery in the future.

Gideon V. Wainwright Revisited: What Does The Right To Counsel Guarantee Today?, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

In Gideon v. Wainwright, the Supreme Court unanimously held that indigent state felony defendants are constitutionally entitled to the appointment of trial counsel. The opinion aroused wide support, and even enthusiasm, almost from the moment it was announced in 1963. Two and a half decades later this support has not diminished. However, are the words of praise only lip service to the noble idea of the right to counsel? Has Gideon really made a difference? Has its promise of a fair shake for poor criminal defendants been kept, or has Gideon meant only that defendants are provided with the fleeting …

Who’S Afraid Of The Sanction Wolf: Imposing Sanctions On Pro Se Litigants, Donalda Gillies

Cardozo Law Review

No abstract provided.

When Will The Idling Statute Of Limitations Start Running In Rico Conspiracy Cases, Ellen Jancko-Baken

Cardozo Law Review

No abstract provided.

The Thin Blue Line: Art Or Trial In The Fact-Finding Process?, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Commentary objectively analyzes The Thin Blue Line, focusing on the film’s monologues, dramatizations, and exhibits. The film's organizational structure roughly parallels the stages of the criminal justice process, from the investigation and arrest of Adams to his trial, conviction, sentence, and post-conviction litigation. The prologue and epilogue unify the story. Part II attempts to explain the bizarre judicial result, focusing on the prosecutor's dominant role in the criminal justice process. It concludes, as does the film, that one of the fundamental features of our legal system - the intrinsic ability of the adversary process to discover …

Theories Of Truth Finding In Criminal Procedure: An Evolutionary Approach, John D. Jackson

Cardozo Law Review

No abstract provided.

Proving The Defendant's Bad Character, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The classic study of the American jury shows that when a defendant's criminal record is known and the prosecution's case has weaknesses, the defendant's chances of acquittal are thirty-eight percent, compared to sixty-five percent otherwise. Because of the danger that jurors will assume that the defendant is guilty based on proof that his bad character predisposes him to an act of crime, the courts and legislatures have attempted to circumscribe the use of such evidence. Some prosecutors, however, although well aware of the insidious effect such prejudicial evidence can have on jurors, violate the rules of evidence, as well as …

As Time Goes By: Pretrial Incarceration Under The Bail Reform Act Of 1984 And The Speedy Trial Act Of 1974, Allen D. Applbaum

Cardozo Law Review

No abstract provided.

Attorney Loyalty And Client Perjury - A Postscript To Nix V. Whiteside, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

How much, if at all, can a criminal defense lawyer cooperate in his or her client's decision to commit perjury? Courts, commentators, and bar committees have grappled with this question for years without offering clear or consistent guidelines. Any principled response must take into account some very hard questions. Under what circumstances, for instance, does the lawyer ever really "know" that his client's proposed testimony is false? Is it sufficient if the lawyer simply disbelieves his client's story, or that of his client's witnesses? Does it make any difference if the attorney learns of a plan to perjure during the …

Review Of "Vigilante: The Backlash Against Crime In America" By William Tucker, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Whose Right Is It Anyway?: Rethinking Competency To Stand Trial In Light Of The Synthetically Sane Insanity Defendant, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

This article's thesis is that given the magnitude of the insanity defendant's fundamental constitutional liberties--his constitutional right to present and conduct his defense, his privilege against self-incrimination, his constitutional right to privacy and bodily integrity, and his common law right to give informed consent to medical treatment--the state's interest in assuring the defendant's competency must give way if he chooses to waive his right to be tried while competent. Most, if not all, of the purposes of the prohibition against trying an incompetent defendant can be met even if the defendant is tried without psychotropic medication as long as he …

"Guilty But Mentally Ill": The Real Verdict Is Guilty, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

This article will first explore the reasons for the controversy over the insanity defense to provide insights, both historical and contemporary, into the purposes and functions of that defense. A brief examination will be made of judicial decisions in the last twenty years, which have largely, but not completely, eliminated the distinctions drawn historically between the "civilly" and "criminally" mentally ill. The article will then examine the growing numbers of "Guilty But Mentally Ill" (GBMI) laws, with some emphasis upon the Michigan statute as the archetypal GBMI law. It will be argued that the GBMI laws are fatally flawed in …

Justice, Mercy, And Craziness, Stephen J. Morse

All Faculty Scholarship

No abstract provided.

Abolition Of The Insanity Defense: Madness And The Criminal Law, Richard G. Singer

Cardozo Law Review

No abstract provided.

Entrapment, Shocked Consciences, And The Staged Arrest, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This Article discusses the relatively spare and unsettled case law relating to the staged arrest, reflected primarily in United States v. Archer and Nigrone v. Murtagh. Part III of this Article examines the defense of entrapment, one of the most confusing and controversial legal doctrines, and its application to the staged arrest. Because the staged arrest ineluctably raises questions of offensive government conduct that neither constitutes unlawful entrapment nor invades any independent rights of citizens, part IV considers the analysis of courts that have invoked the due process clause to limit government investigations. In view of the failure of these …

No Habeas Corpus For The Guilty, Michelle W. Ghetti

Michelle W. Ghetti

This article discusses whether habeas corpus relief should be provided to a defendant when there is no question as to his or her guilt.