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Full-Text Articles in Law

Brock Turner: Sorting Through The Noise, Michael Vitiello Jan 2108

Brock Turner: Sorting Through The Noise, Michael Vitiello

McGeorge School of Law Scholarly Articles

PART I. THE MEDIA’S ROLE ............................................................................... 634

A. Six Months for Rape? ............................................................................ 634

B. Okay, But Sixth Months for Sexual Assault? ......................................... 638

C. But Vitiello, You are Cherry-Picking the Facts ..................................... 643

D. But Judge Persky Showed Bias, Racial or Otherwise ........................... 646

PART II: TAKING THE WRONG PATH TOWARDS RECALL ................................... 649

A. Existing Checks on Judicial Misconduct ............................................... 650

B. What’s Not to Like About Recall? ......................................................... 652

III. CONCLUDING THOUGHTS ............................................................................. 659


Prosecuting Rape Victims While Rapists Run Free: The Consequences Of Police Failure To Investigate Sex Crimes In Britain And The United States, Lisa Avalos Jan 2019

Prosecuting Rape Victims While Rapists Run Free: The Consequences Of Police Failure To Investigate Sex Crimes In Britain And The United States, Lisa Avalos

Michigan Journal of Gender and Law

Imagine that a close friend is raped, and you encourage her to report it to the police. At first, she thinks that the police are taking her report seriously, but the investigation does not seem to move forward. The next thing she knows, they accuse her of lying and ultimately file charges against her. You and your friend are in shock; this outcome never entered your minds. This nightmare may seem inconceivable, but it has in fact occurred repeatedly in both the United States and Britain—countries that are typically lauded for their high levels of gender equality. In Britain ...


Criminal Sanctions And The Tpp: Section 18.77, Shawn Marie Boyne Jun 2018

Criminal Sanctions And The Tpp: Section 18.77, Shawn Marie Boyne

Science and Technology Law Review

No abstract provided.


Human Trafficking In Japan Through The Use Of Schoolgirls, Khyrsten Acadimia Jun 2018

Human Trafficking In Japan Through The Use Of Schoolgirls, Khyrsten Acadimia

International ResearchScape Journal

Joshi Kosei (JK Business), is the integration of schoolgirls in the human trafficking industry in Japan. It is a form of compensated dating called “Enjo Kosai.” Japan is currently ranked as a tier 2 country within the Trafficking in Persons 2017 report that is conducted by the United States Department of State. This is due to the lack of enforcement behind the current policies to prosecute traffickers and protect victims. This paper traces the human trafficking industry from World War II to present times, as well as the Joshi Kosei phenomena from the 1990s to the present. After that there ...


A View From American Courts: The Year In Indian Law 2017, Grant Christensen Jun 2018

A View From American Courts: The Year In Indian Law 2017, Grant Christensen

Seattle University Law Review

This Article provides a comprehensive review of Indian law for 2017. It does not include a citation to every case related to Indian law issued by the courts but tries to incorporate the majority of opinions into its catalog to provide a robust discussion of the changes in Indian law over the course of 2017. Part I of this Article provides some general statistics about Indian law in 2017. Part II focuses on activity at the U.S. Supreme Court, which is the most watched forum for Indian law cases for obvious reasons. Part III groups cases by subject area ...


Rape By Fraud: Eluding Washington Rape Statutes, Michael Mullen Jun 2018

Rape By Fraud: Eluding Washington Rape Statutes, Michael Mullen

Seattle University Law Review

Existing Washington law does not sufficiently safeguard its citizens from “rape by fraud,” an action whereby a person obtains sexual consent and has sexual intercourse of any type by fraud, deception, misrepresentation, or impersonation. Rape by fraud is a form of sexual predation not always prosecutable under existing Washington law. In recent years, twelve states have adopted expanded rape by fraud statutory provisions. Presently, Washington’s rape statutes lack the expansive rape by fraud statutory language adopted by these twelve states. A recent sexual scam in Seattle has revealed holes in Washington’s rape statutes. This Note examines the history ...


Big Law, Public Defender-Style: Aggregating Resources To Ensure Uniform Quality Of Representation, Eve Hanan Jun 2018

Big Law, Public Defender-Style: Aggregating Resources To Ensure Uniform Quality Of Representation, Eve Hanan

Washington and Lee Law Review Online

Stories abound of public defenders who, overwhelmed with high caseloads, allow defendants to languish in pre-trial detention and guilty pleas to be entered without examining the merits of the case. Most defendants cannot afford to hire an attorney, and, thus, have no choice other than to accept the public counsel appointed by the court. In this Essay, I consider whether Professor Benjamin Edwards’ central argument in The Professional Prospectus: A Call for Effective Professional Disclosure that attorneys should provide potential clients with a prospectus disclosing their performance historyapplies to criminal defense. I reject the proposition that most people charged ...


Guerrina V. State, 134 Nev. Adv. Op. 45 (June 7, 2018), Xheni Ristani Jun 2018

Guerrina V. State, 134 Nev. Adv. Op. 45 (June 7, 2018), Xheni Ristani

Nevada Supreme Court Summaries

The Court affirmed Lyons v. State, which gives the courts discretion to reject a defendant’s request for self-representation if the request is untimely. Further, the Court affirmed the Mendoza v. State test, which allows a single incident to sustain convictions for both robbery and kidnapping if any movement or restraint creates a risk to the victim substantially exceeding what is necessarily present in the crime of robbery. Finally, the Court held that the State must satisfy NRS § 193.165 to sustain deadly weapon charges.


The Productivity Of Wh- Prompts In Child Forensic Interviews, Elizabeth C, Ahern, Samantha J. Andrews, Stacia N. Stolzenberg, Thomas D. Lyon Jun 2018

The Productivity Of Wh- Prompts In Child Forensic Interviews, Elizabeth C, Ahern, Samantha J. Andrews, Stacia N. Stolzenberg, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

Child witnesses are often asked wh- prompts (what, how, why, who, when, where) in forensic interviews. However, little research has examined the ways in which children respond to different wh- prompts and no previous research has investigated productivity differences among wh- prompts in investigative interviews. This study examined the use and productivity of wh- prompts in 95 transcripts of 4- to 13-year-olds alleging sexual abuse in child investigative interviews. What-how questions about actions elicited the most productive responses during both the rapport building and substantive phases. Future research and practitioner training should consider distinguishing among different wh- prompts.


Bait Questions As Source Of Misinformation In Police Interviews: Does Race Or Age Of The Suspect Increase Jurors' Memory Errors?, Matilde Ascheri Jun 2018

Bait Questions As Source Of Misinformation In Police Interviews: Does Race Or Age Of The Suspect Increase Jurors' Memory Errors?, Matilde Ascheri

Student Theses

Bait questions—hypothetical questions about evidence, often used by detectives during interrogations—can activate the misinformation effect and alter jurors’ perceptions of the evidence of a case. Here, we were interested in investigating whether mock jurors’ implicit biases could amplify the magnitude of the misinformation effect. We accomplished this by manipulating the age and race of the suspect being interrogated. As an extension of Luke et al. (2017), we had participants read a police report describing evidence found at a crime scene, then read a transcript of a police interrogation where the detective used bait questions to introduce new evidence ...


Talent Can't Be Allocated: A Labor Economics Justification For No-Poaching Agreement Criminality In Antitrust Regulation, Rochella T. Davis Jun 2018

Talent Can't Be Allocated: A Labor Economics Justification For No-Poaching Agreement Criminality In Antitrust Regulation, Rochella T. Davis

Brooklyn Journal of Corporate, Financial & Commercial Law

As of late, labor markets have been a focus point in antitrust enforcement. In 2016 the Department of Justice (DOJ) announced an unprecedented policy to pursue no-poaching agreements criminally. More recently, in January 2018, the DOJ’s Attorney General indicated that the agency is following through on the policy. This Article argues that the DOJ’s new policy is logical and prudent because the economic effects that no-poaching agreements have on labor markets mirror the anticompetitive effects of customer allocation agreements. It also shows that the policy is well-supported by labor economics and antitrust policies. In efforts to comply with ...


The Chilling Effect: The Politics Of Charging Rape Complainants With False Reporting, Lisa Avalos Jun 2018

The Chilling Effect: The Politics Of Charging Rape Complainants With False Reporting, Lisa Avalos

Brooklyn Law Review

Although legal scholars have addressed the persistent failure to effectively investigate and prosecute rape despite decades of attempts at reform, the issue of prosecutors going so far as to bring false reporting charges against disbelieved sexual assault victims has received scant scholarly attention. This article calls attention to this particularly disturbing externality of the mishandling of rape cases. First contextualizing false reporting prosecutions of rape victims, the article demonstrates that such prosecutions are a direct outgrowth of poor quality, under-resourced police rape investigations. These prosecutions move forward as a result of several systemic problems: procedural irregularities and informal policies that ...


Equal Protection Under The Carceral State, Aya Gruber Jun 2018

Equal Protection Under The Carceral State, Aya Gruber

Northwestern University Law Review

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies. In contrast to these conventional views, I argue that the primary anxiety ...


Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger Jun 2018

Mccleskey V. Kemp: Field Notes From 1977-1991, John Charles Boger

Northwestern University Law Review

The litigation campaign that led to McCleskey v. Kemp did not begin as an anti-death-penalty effort. It grew in soil long washed in the blood of African-Americans, lynched or executed following rude semblances of trials and hasty appeals, which had prompted the NAACP from its very founding to demand “simple justice” in individual criminal cases. When the Warren Court signaled, in the early 1960s, that it might be open to reflection on broader patterns of racial discrimination in capital sentencing, the NAACP Legal Defense & Educational Fund, Inc. (LDF) began to gather empirical evidence and craft appropriate constitutional responses. As that effort built, other deficiencies in state capital states became apparent, and LDF eventually asserted a broader constitutional critique of state capital structures and processes. By 1967, LDF and its allies had developed a nationwide “moratorium” campaign that challenged death sentencing statutes in virtually every state.

Though the campaign appeared poised for partial success in 1969, changes in Court personnel and shifts in the nation’s mood dashed LDF’s initial hopes. Yet unexpectedly, in 1972, five Justices ruled in Furman v. Georgia that all death sentences and all capital statutes nationwide would fall under the Eighth Amendment’s prohibition against cruel and unusual punishments. Each of the nine Furman Justices wrote separately, without a single governing rationale beyond their expressed uneasiness that the death penalty was being imposed infrequently, capriciously, and in an arbitrary manner. Thirty-five states promptly enacted new and revised capital statutes. Four years later, a majority of the Court held that three of those new state statutes met Eighth and Fourteenth Amendment standards. The 1976 Court majority expressed confidence that the states’ newly revised procedures should work to curb the arbitrariness and capriciousness that had earlier troubled the Furman majority.

The McCleskey case emerged from subsequent review of post-Furman sentencing patterns in the State of Georgia. A brilliant and exhaustive study by Professor David Baldus and his colleagues demonstrated that the Court’s assumptions in 1976 were wrong; strong racial disparities in capital sentencing continued to persist statewide in Georgia—especially in cases in ...


Pull And Push'- Implementing The Complementarity Principle Of The Rome Statute Of The Icc Within The Au: Opportunities And Challenges, Sascha Dominik Dov Bachmann, Eda Luke Nwibo Jun 2018

Pull And Push'- Implementing The Complementarity Principle Of The Rome Statute Of The Icc Within The Au: Opportunities And Challenges, Sascha Dominik Dov Bachmann, Eda Luke Nwibo

Brooklyn Journal of International Law

The complementarity principle of the Rome Statute of the International Criminal Court (ICC) is an international legal principle that governs the relationship between two; sometimes; contrasting international principles of law; namely sovereign equality of States and the international community’s duty to end impunity for international core crimes. Article 17 of the Rome Statute envisages that States maintain primary jurisdiction to investigate and prosecute international crimes; while the ICC’s jurisdiction to prosecute when States are unwilling or genuinely unable to carry out such investigations or prosecutions constitutes the exception. This article provides an analysis of this principle in the ...


Equal Protection And White Supremacy, Paul Butler Jun 2018

Equal Protection And White Supremacy, Paul Butler

Northwestern University Law Review

The project of using social science to help win equal protection claims is doomed to fail if its premise is that the Supreme Court post-McCleskey just needs more or better evidence of racial discrimination. Everyone—including the Justices of the Court—already knows that racial discrimination is endemic in the criminal justice system. Social science does help us to understand the role of white supremacy in U.S. police and punishment practices. Social science also can help us understand how to move people to resist, and can inform our imagination of the transformation needed for equal justice under the ...


Combating Discrimination Against The Formerly Incarcerated In The Labor Market, Ifeoma Ajunwa, Angela Onwuachi-Willig Jun 2018

Combating Discrimination Against The Formerly Incarcerated In The Labor Market, Ifeoma Ajunwa, Angela Onwuachi-Willig

Northwestern University Law Review

Both discrimination by private employers and governmental restrictions in the form of statutes that prohibit professional licensing serve to exclude the formerly incarcerated from much of the labor market. This Essay explores and analyzes potential legislative and contractual means for removing these barriers to labor market participation by the formerly incarcerated. First, as a means of addressing discrimination by the state, Part I of this Essay explores the ways in which the adoption of racial impact statements—which mandate that legislators consider statistical analyses of the potential impact their proposed legislation may have on racial and ethnic groups prior to ...


Criminalizing Battered Mothers, Courtney Cross Jun 2018

Criminalizing Battered Mothers, Courtney Cross

Utah Law Review

How a domestic violence survivor responds to the abuse she is experiencing depends on many factors. Some critical considerations include her access to resources, desire to stay in her relationship, and assessment of her own safety. Criminal and civil court systems place enormous pressure on survivors to separate from their abusive partners. Not only are survivors with children pressured to leave, they are punished when they stay. That punishment can come in any combination of diminished custody rights, limited parental rights, and incarceration. Yet a survivor who flees with her children is not immune to these same consequences: if she ...


Cashing In On Convicts: Privatization, Punishment, And The People, Laura I. Appleman Jun 2018

Cashing In On Convicts: Privatization, Punishment, And The People, Laura I. Appleman

Utah Law Review

For-profit prisons, jails, and alternative corrections present a disturbing commodification of the criminal justice system. Though part of a modern trend, privatized corrections has well-established roots traceable to slavery, Jim Crow, and current racially-based inequities. This monetizing of the physical incarceration and regulation of human bodies has had deleterious effects on offenders, communities, and the proper functioning of punishment in our society. Criminal justice privatization severs an essential link between the people and criminal punishment. When we remove the imposition of punishment from the people and delegate it to private actors, we sacrifice the core criminal justice values of expressive ...


Accelerated Civil Rights Settlements In The Shadow Of Section 1983, Katherine A. Macfarlane Jun 2018

Accelerated Civil Rights Settlements In The Shadow Of Section 1983, Katherine A. Macfarlane

Utah Law Review

The families of Eric Garner, Laquan McDonald, Freddie Gray, and Walter Scott have obtained multimillion dollar settlements from the cities in which their family members lost their lives. This Article identifies and labels these settlements as a legal response unique to high-profile policeinvolved deaths: accelerated civil rights settlement. It defines accelerated civil rights settlement as a resolution strategy that uses the threat of 42 U.S.C. Section 1983 litigation rather than litigation itself to compensate police-involved shooting victims’ family members. This Article explains how accelerated civil rights settlement involves no complaint or case—nothing is filed. Also, the goal ...


Volume 1, Issue 2 May 2018

Volume 1, Issue 2

International Journal on Responsibility

Contents:

1 – 5 Howard Zehr, Restorative Justice and the Gandhian Tradition.

6 – 34 Richard E. Rubenstein, Responsibility for Peacemaking in the Context of Structural Violence.

35 – 90 Marc Pufong, Terror, Insecurity, State Responsibility and Challenges: Yesterday and Today?

91 – 108 Ron Kraybill, Responsibility, Community and Conflict Resolution in an Age of Polarization.

109 – 136 John Fairfield, Beyond non-violence to courtship.

139 Call for papers for forthcoming issues of the International Journal on Responsibility and instructions for authors.


Understanding "Sanctuary Cities", Christopher N. Lasch, R. Linus Chan, Ingrid V. Eagly, Dina Francesca Haynes, Annie Lai, Elizabeth M. Mccormick, Juliet P. Stumpf May 2018

Understanding "Sanctuary Cities", Christopher N. Lasch, R. Linus Chan, Ingrid V. Eagly, Dina Francesca Haynes, Annie Lai, Elizabeth M. Mccormick, Juliet P. Stumpf

Boston College Law Review

In the wake of President Trump’s election, a growing number of local jurisdictions around the country have sought to disentangle their criminal justice apparatus from federal immigration enforcement efforts. These localities have embraced a series of reforms that attempt to ensure immigrants are not deported when they come into contact with the criminal justice system. The Trump administration has labeled these jurisdictions “sanctuary cities” and vowed to “end” them by, among other things, attempting to cut off their federal funding.

This Article is a collaborative project authored by law professors specializing in the intersection between immigration and criminal law ...


The Naked Truth: Insufficient Coverage For Revenge Porn Victims At State Law And The Proposed Federal Legislation To Adequately Redress Them, Meghan Fay May 2018

The Naked Truth: Insufficient Coverage For Revenge Porn Victims At State Law And The Proposed Federal Legislation To Adequately Redress Them, Meghan Fay

Boston College Law Review

The distribution of revenge porn is a cyber-bullying phenomenon that has proliferated on the Internet. The nonconsensual sharing of sexually explicit photographs and videos causes irreparable harm to revenge porn victims. The current state of the law, however, does little to redress the damage. Tort claims are often unsuccessful because many victims do not have the resources necessary to initiate a lawsuit. Furthermore, federal law grants operators of revenge porn websites immunity from state tort claims. In an effort to fill this gap in the law, many states have made changes or additions to their criminal statutes. To date, thirty-eight ...


When The Defendant Doesn't Testify: The Eighth Circuit Considers A Reasonable Broken Promise In Bahtuoh V. Smith, Alexandre Bou-Rhodes May 2018

When The Defendant Doesn't Testify: The Eighth Circuit Considers A Reasonable Broken Promise In Bahtuoh V. Smith, Alexandre Bou-Rhodes

Boston College Law Review

In 2017, in Bahtuoh v. Smith, the Eighth Circuit held that a criminal defendant’s counsel was not ineffective for promising the jury that the defendant would testify, but failing to deliver on that promise. This Comment argues that the Eighth Circuit’s decision is in line with the decisions of other circuits in ineffective assistance of counsel cases where counsel promised the defendant’s testimony but later reneged on that promise. Courts should consider in their analysis, however, the impact such a decision may have on the jury, and that a stricter standard for evaluating counsel’s trial performance ...


Eleventh Circuit Prematurely Applied The Rule Of Lenity In United States V. Izurieta, C. Alex Dilley May 2018

Eleventh Circuit Prematurely Applied The Rule Of Lenity In United States V. Izurieta, C. Alex Dilley

Boston College Law Review

The statute that prohibits smuggling goods into the United States, 18 U.S.C. § 545, requires proof that a defendant knowingly or fraudulently imported merchandise or facilitated the transport of such merchandise “contrary to law.” In 2013, in United States v. Izurieta, the U.S. Court of Appeals for the Eleventh Circuit held that a regulatory violation carrying only civil implications could not serve as the underlying offense for the smuggling statute’s contrary to law provision given the felony criminal penalties associated with a violation of the statute. The Eleventh Circuit’s decision diverged from the 1994 and 2008 ...


Conviction Beyond A Reasonable Suspicion? The Need For Strengthening The Factual Basis Requirement In Guilty Pleas, Myeonki Kim May 2018

Conviction Beyond A Reasonable Suspicion? The Need For Strengthening The Factual Basis Requirement In Guilty Pleas, Myeonki Kim

Concordia Law Review

Does the court, before accepting a guilty plea, check the accuracy of the plea agreement in any significant way? This article addresses the issues on judges being unconcerned or the inconsistent practice of guiding the stages of guilty plea. The article further suggests that the judge should carefully review its factual basis to avoid a wrongful guilty plea. Although Rule 11(b) of the Federal Rule of Criminal Procedure requires the judges to check the factual basis of the guilty plea, the rule is not paid much attention to legal professionals. Setting the adversarial culture aside, the rule itself has ...


Abolishing Australia's Judicially Enacted Sui Generis Doctrine Of Extended Joint Enterprise, Victoria Bo Wang May 2018

Abolishing Australia's Judicially Enacted Sui Generis Doctrine Of Extended Joint Enterprise, Victoria Bo Wang

Concordia Law Review

This Article argues that the decision in Miller v The Queen [2016] HCA 30 is supported neither by common law precedent in Australia nor the historical English precedents that informed the development of Australia’s common law doctrines. It is submitted that the majority judgment misquoted old English authorities to try to equate foresight with intention and argues that the High Court of Australia engaged in judicial activism, because its decision rested predominantly on the policy views of the judges. Moreover, it is argued that the case highlighted the urgent need for law reform in Australia. The Article puts forward ...


A Brief Summary And Critique Of Criminal Liability Rules For Intoxicated Conduct, Paul H. Robinson May 2018

A Brief Summary And Critique Of Criminal Liability Rules For Intoxicated Conduct, Paul H. Robinson

Faculty Scholarship

This essay provides an overview of the legal issues relating to intoxication, including the effect of voluntary intoxication in imputing to an offender a required offense culpable state of mind that he may not actually have had at the time of the offense; the effect of involuntary intoxication in providing a defense by negating a required offense culpability element or by satisfying the conditions of a general excuse; the legal effect of alcoholism or addiction in rendering intoxication involuntary; and the limitation on using alcoholism or addiction in this way if the offender can be judged to be reasonably responsible ...


Scientific Excellence In The Forensic Science Community, Alice R. Isenberg, Cary T. Oien May 2018

Scientific Excellence In The Forensic Science Community, Alice R. Isenberg, Cary T. Oien

Fordham Law Review Online

This Article was prepared as a companion to the Fordham Law Review Reed Symposium on Forensic Expert Testimony, Daubert, and Rule 702, held on October 27, 2017, at Boston College School of Law. The Symposium took place under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. For an overview of the Symposium, see Daniel J. Capra, Foreword: Symposium on Forensic Testimony, Daubert, and Rule 702, 86 Fordham L. Rev. 1459 (2018).


Scientific Validity And Error Rates: A Short Response To The Pcast Report, Ted Robert Hunt May 2018

Scientific Validity And Error Rates: A Short Response To The Pcast Report, Ted Robert Hunt

Fordham Law Review Online

This Article was prepared as a companion to the Fordham Law Review Reed Symposium on Forensic Expert Testimony, Daubert, and Rule 702, held on October 27, 2017, at Boston College School of Law. The Symposium took place under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. For an overview of the Symposium, see Daniel J. Capra, Foreword: Symposium on Forensic Testimony, Daubert, and Rule 702, 86 Fordham L. Rev. 1459 (2018).