Law Commons^™

Computationally Assessing Suspicion, Wesley M. Oliver

Law Faculty Publications

Law enforcement officers performing drug interdiction on interstate highways have to decide nearly every day whether there is reasonable suspicion to detain motorists until a trained dog can sniff for the presence of drugs. The officers’ assessments are often wrong, however, and lead to unnecessary detentions of innocent persons and the suppression of drugs found on guilty ones. We propose a computational method of evaluating suspicion in these encounters and offer experimental results from early efforts demonstrating its feasibility. With the assistance of large language and predictive machine learning models, it appears that judges, advocates, and even police officers could …

Personality Disorders In Relation To Crime, Ann Difrank

D.U.Quark

Personality disorders, including borderline and antisocial, are mental disorders that influence the thoughts and behaviors of affected individuals. There is currently a lack of studies in the relationship between these individuals and crime rates, though it is often found criminal offenders have said disorders. These disorders can be traced down to neurological and biochemical dimensions, including disruptions in brain function and chemical levels. These disorders can also be developed from childhood abuse or other disruptions in adolescent development. Though all personality disorders are developed similarly, the differences in presentation affect the type of crime committed and specific crime scene behaviors. …

Putting The "P" In Pfa: The Electronic Monitoring Of Protection From Abuse Respondents In Pennsylvania, Cameron Kehm

Duquesne Law Review

Domestic violence violently claimed Alina Sheykhet's life, despite alleged "protection" from a Protection from Abuse Order ("PFA").¹ Far from being an exception, Alina's story is yet another example among many cases that show how traditional protective order systems fail those who need protected most.² However, Alina's Law can protect PFA holders through a new remedy: the electronic monitoring of PFA respondents.³ Although Alina's Law failed to make it out of committee consideration during the 2019-2020 term,⁴ with three modifications, legislators can reintroduce Alina's Law in a passable form that would protect Pennsylvania's most vulnerable citizens.

Part …

The Disconnect Between Forensic Science And The Lawyers And Judges Who Represent It, Hannah Reidenbaugh

Graduate Student Research Symposium

The goal of this research is to demonstrate a knowledge gap in the forensic science education of lawyers. In law schools across the country, there is minimal curriculum requirements focused on educating law students in forensic science. Of the top 50 law schools in the U.S., 20% offer a forensic science elective. After the rigor of law school, there is no requirement set to educate lawyers in forensic science. In fact, based on survey responses, 51% of criminal lawyers do not take part in forensic science continuing education programs. Though educators as well as professionals have voiced the need for …

Should Criminal Justice Reformers Care About Prosecutorial Ethics Rules?, Bruce A. Green, Ellen Yaroshefsky

Duquesne Law Review

No abstract provided.

Charles Lindergh, Caryl Chessman, And The Exception Proving The (Potentially Waning) Rule Of Broad Prosecutorial Discretion, Wesley M. Oliver

Law Faculty Publications

Perhaps ever since legislatures started defining crimes, they have given prosecutors a variety of ways to prosecute the same conduct. Courts have, almost without exception, deferred to legislatures' broad definitions of crime. Kidnapping statutes are the exception. The high profile execution of Caryl Chessman in 1960 for kidnapping prompted considerable scholarly criticism and prompted courts nationwide to impose limiting constructions on kidnapping statutes. Recently, scholars have called for a curb in prosecutorial discretion generally, attributing the explosion in the prison population to broad criminal codes, mandatory minimums, and sentencing guidelines that provide prosecutors leverage in plea negotiations. In the last …

Standards Of Legitimacy In Criminal Negotiations, Wesley M. Oliver, Rishi Batra

Law Faculty Publications

Scholarship on negotiation theory and practice is rich and well-developed. Almost no work has been done, however, to translateto the criminal context the lessons learned about negotiationfrom extensive empirical study using the disciplines of econom-ics, game theory, and psychology. This Article suggests that de-fense lawyers in criminal negotiations can employ toolsfrequently useful to negotiators in other arenas: neutral criteria as a standard of legitimacy. Judges sometimes exercise a type of discretion analogous to prosecutorial discretion. When they do so, they offer an independent, reasoned, and publicly available assessment of the factors that a prosecutor ought to consider in deciding whether …

Limiting Criminal Law’S “In For A Penny, In For A Pound” Doctrine, Wesley M. Oliver

Law Faculty Publications

The Supreme Court took two cases this Term involving doctrines of criminal law typically dealt with by state courts, and in each of them, it limited criminal liability for harms not attributable to a defendant’s culpability.

Although the Court interprets federal criminal statutes with some frequency, it rarely considers provisions of statutes that would provide persuasive authority for the interpretation of state criminal codes—at least not the most used provisions of state criminal codes. Unlike state criminal laws, federal criminal laws have jurisdictional requirements and generally have more complex components. It is typically these unique aspects of federal criminal laws …

Plea Bargaining After Frye And Lafler, A Real Problem In Search Of A Reasonable And Practical Solution (Meeting The Challenges Of Frye And Lafler) [Keynote Address], W. Louis Sands

Duquesne Law Review

No abstract provided.

Plea Bargaining Is A Shadow Market [Introduction], Frank H. Easterbrook

Duquesne Law Review

No abstract provided.

The Indirect Potential Of Lafler And Frye, Wesley Macneil Oliver

Duquesne Law Review

There are a range of opinions about the potential impact of the Supreme Court's latest opinions. My view of the potential of these cases to create some meaningful limit on the presently unregulated world of plea bargaining is probably the most optimistic, or radical, of anyone who participated in this conference. Missouri v. Frye and Lafler v. Cooper, in my view, hold the potential to improve the quality of representation defendants receive in the negotiation process and may lead judges to create a set of advisory guidelines for the exercise of prosecutorial discretion. The direct impact of these opinions …

The Duties Of Non-Judicial Actors In Ensuring Competent Negotiation, Stephanos Bibas

Duquesne Law Review

I am delighted that Professor Wes Oliver and the Duquesne University School of Law are hosting this timely and important symposium on plea-bargaining after Lafler and Frye and this panel on what it takes to make defense counsel effective negotiators. Those decisions have provoked a long-overdue conversation about what kind of defense lawyering is effective and constitutionally required in a world of guilty pleas. Though the Court recognized decades ago, in Hill v. Lockhart, that ineffective assistance could taint guilty pleas, it is only now working through what that principle must mean and how to implement it in practice.

Plea Bargains That Waive Claims Of Ineffective Assistance - Waiving Padilla And Frye, Nancy J. King

Duquesne Law Review

In a criminal justice system where procedural rights are freely traded for sentencing and charging concessions, each heralded decision of the Supreme Court enforcing or expanding a right of the accused produces yet another bargaining chip for the defense. As rights expand, so do waivers of the opportunity to enforce those rights on review. As one court stated, the government "enters into plea agreements to avoid costly litigation, not to postpone it." It was, then, unsurprising when, amid the accolades for the Court's decisions in Missouri v. Frye and Lafler v. Cooper, one exprosecutor suggested that defendants should have …

The Right To Plea Bargain With Competent Counsel After Cooper And Frye: Is The Supreme Court Making The Ordinary Criminal Process "Too Long, Too Expensive, And Unpredictable . . . In Pursuit Of Perfect Justice"?, Bruce A. Green

Duquesne Law Review

"[T]oo long, too expensive, and unpredictable." That is how Justice Scalia described "the ordinary criminal process" in a dissenting opinion joined by Chief Justice Roberts and Justice Thomas. Justice Scalia blamed the length, cost, and unpredictability of criminal proceedings not on the intrinsic nature of adjudication but on the constitutional jurisprudence underlying the criminal process, which he depicted as unnecessarily intricate and unduly burdensome. One might infer, given their understanding, that these Justices will not only interpret constitutional provisions narrowly in criminal cases but, given the chance, will trim back constitutional protections that they believe earlier decisions benightedly …

Putting The Trial Penalty On Trial, David S. Abrams

Duquesne Law Review

The "trial penalty" is a concept widely accepted by all the major actors in the criminal justice system: defendants, prosecutors, defense attorneys, court employees, and judges. The notion is that defendants receive longer sentences at trial than they would have through plea bargain, often substantially longer. The concept is intuitive: longer sentences are necessary in order to induce settlements and without a high settlement rate it would be impossible for courts as currently structured to sustain their immense caseload.

Do Procedural Claims Drive Out Merits Claims In Plea Bargaining?: A Comment On The Work Of The Late Professor William Stuntz, Gabriel J. Chin

Duquesne Law Review

In his now classic body of work on plea bargaining, the late William Stuntz answered one the of the most disturbing challenges to the institution of plea bargaining: That it promotes conviction of the innocent by putting them to the torturous choice of pleading guilty to a crime they did not commit, or going to trial and facing the possibility of conviction, and thus even more time. Stuntz, like other scholars, persuasively contended that denying innocent defendants the opportunity for a plea bargain could only make them worse off because they would be forced to go to trial where they …

Lafler And Frye: Two Small Band-Aids For A Festering Wound, Albert W. Alschuler

Duquesne Law Review

Imagine that you are on death row, and imagine that the incompetence of your lawyer has put you there. A witness at your trial testified that you waited at the wheel of a getaway car while two accomplices robbed a liquor store and one of them shot and killed the clerk. Shortly after your arrest, the prosecutor offered to permit you and your co-defendants to plead guilty to voluntary manslaughter and armed robbery. This offer would have limited your sentence to 25 years. Your co-defendants, including the alleged triggerman, accepted the offer. You would have accepted the offer too if …

Plea Bargaining In The Shadow Of The Constitution, Richard L. Lippke

Duquesne Law Review

In two recent decisions, the United States Supreme Court moved further in the direction of at least limited constitutionalization of plea bargaining. A majority on the Court held that criminal defendants must be given "effective assistance" by their attorneys as they contemplate whether to waive important legal rights and enter guilty pleas. Fortunately for the Court, the defense attorneys in the two cases had almost comically failed to do their jobs and thus the majority could, as it acknowledged, avoid addressing in any very thorough way the parameters of effective assistance in the plea bargaining context. In spite of this, …

Concert Of Action By Substantial Assistance: What Ever Happened To Unconscious Aiding And Abetting, Dana Neacsu

Law Faculty Publications

As one commentator has uncomfortably noted, in the 1980's, courts seemed inclined to develop and use theories of liability, which ensured that the risk of injury and loss was transferred from consumer victims to manufacturers and then, through the price mechanism, to the community-at-large. That was a time when courts seemed to be comfortable applying product liability without fault, and holding manufacturers as "insurers even for those products, which previously would not have been considered 'defective' in design, in manufacture, or in marketing." Since then, courts have scaled the doctrine back.

Parental Kidnapping: Can The Uniform Child Custody Jurisdiction Act And Federal Parental Kidnapping Prevention Act Of 1980 Effectively Deter It?, Rita Mankovich Irani

Duquesne Law Review

Despite the adoption in forty-four states of the Uniform Child Custody Jurisdiction Act, kidnapping remains a widespread alternative for parents who seek custody of their children. The author discusses how the willingness of courts to entertain the custody petition of a parent who has kidnapped his child has provided incentive for child-snatching, and probes section 8 of the Act, which sets forth guidelines for courts to use in determining whether to hear such petitions. Selected cases are presented to illustrate a proper interpretation and application of section 8 in light of the Act's overall purpose. Finally, the author explains the …

Constitutional Law - Eighth Amendment - Capital Punishment - State Death Penalty Statutes - Procedural Safeguards, Scott T. Redman

Duquesne Law Review

The Supreme Court of the United States has held that the Alabama death penalty statute which prohibited a jury instruction of lesser included offenses in a capital case is unconstitutional because it diminishes the reliability of the guilt determination process, leading to an arbitrary and irrational imposition of the death penalty.

Beck v. Alabama, 447 U.S. 625 (1980).

Law, Language, And Forensic Psychiatry, Lee S. Weinberg, Richard E. Valtz

Duquesne Law Review

Dr. Thomas Szaz, a controversial figure in psychiatry today, attacks the use of a medical model to explain abnormal behavior. The authors analyze Szaz' views and their implications on the issues of the insanity plea, competency to stand trial, the right to medical treatment, involuntary civil commitment, and victimless crimes.

And The Saints Go Marching Out - Rule 1100: Pennsylvania's Implementation Of The Right To A Speedy Trial, Jacqueline Mikula Verney

Duquesne Law Review

An accused's right to a speedy trial has deep roots in our Anglo- Saxon common law and is guaranteed by the Federal Constitution and most state constitutions. Traditionally, whether this right was violated was determined by a balancing test. Pennsylvania has, however, adopted a per se approach, and the author questions whether, in view of the interests the right is intended to protect, such a rule is necessary or wise.

Terry V. Ohio And Power Of Police To Accost Citizens Absent Probable Cause To Arrest: A Critical Look At The Pennsylvania Experience, Joseph P. Caracappa

Duquesne Law Review

In Terry v. Ohio, the Supreme Court held constitutionally permissible the stopping and frisking of individuals on less than probable cause. The Supreme Court, however, has given few specific guidelines, encouraging development of the concept in state and lower federal courts. The author criticizes Pennsylvania's approach, suggesting that Pennsylvania courts have failed to appreciate that a stop-and-frisk is still within the purview of the fourth amendment.

Open Questions In Pennsylvania Criminal Law, Samuel J. Reich, Jay H. Speigel

Duquesne Law Review

The authors explore several areas of criminal law and criminal procedure, specifically, a defendant's right to counsel at line-ups, establishing probable cause with first-time informants, changing venue based on pretrial publicity, impeachment of witnesses through the use of prior convictions, necessity of instructing the jury on manslaughter in homicide cases, retroactive or prospective application of changes in the law, requiring stated reasons for sentences, applying the exclusionary rule in probation and parole revocation proceedings, and the scope of the Brady rule, all of which present questions yet to be resolved by the Pennsylvania Supreme Court.

The Court Psychiatrist: Between Two Worlds, Carol E.R. Bohmer

Duquesne Law Review

A court psychiatrist owes what are often conflicting duties to his defendant-"patient" and the court. The author explores the nature and effect of these role conflicts.

The Copper Platter Doctrine Revisited [Note], George C. Werner

Duquesne Law Review

As the Burger Court continues to reduce the impact of the exclusionary rule as a matter of federal constitutional law, several states have expanded the exclusionary rule as a matter of state law. Federal courts have uniformly admitted in federal criminal trials evidence seized by state police in violation of only the stricter state constitutional standards. The author suggests that in so doing, most federal courts have failed to address the proper issues, completely disregarding state interests.

Criminal Law - Rape - Sufficiency Of Evidence To Support Conviction - Corroboration Of Complainant's Testimony, Constance A. Hill

Duquesne Law Review

The District of Columbia Court of Appeals had held that corroboration of a mature complainant's testimony is no longer required to sustain a conviction for rape, abrogating its corroboration rule.

Arnold v. United States, 358 A.2d 335 (D.C. Ct. App. 1976) (en banc).

Criminal Law - Juvenile Delinquency Proceeding - Right To Trial By Jury, Joseph E. Vogrin Iii

Duquesne Law Review

The New York Court of Appeals has overruled the New York Supreme Court, Appellate Division, which held that the Sixth and Fourteenth Amendments require a jury trial in a Family Court Proceeding charging one with being a juvenile delinquent based on an act which if committed by an adult would constitute a felony and thus entitle him to a jury trial.

In Re D., 313 N.Y.S.2d 704, 27 N.Y.2d 90 (1970).

Criminal Law - Juvenile Court Proceedings - Evidence, Daniel Joseph

Duquesne Law Review

The Pennsylvania Superior Court has indicated that a distinction exists as to the admissibility of hearsay evidence in a juvenile proceeding. The distinction is based upon whether the hearsay evidence will help or hurt the child.

Farms Appeal, 216 Pa. Super. 445, 268 A.2d 170 (1970).