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Articles 1 - 30 of 230
Full-Text Articles in Law
An Analysis Of The Death Penalty Jurisprudence Of The October 2007 Supreme Court Term (The Twentieth Annual Supreme Court Review), Richard Klein
An Analysis Of The Death Penalty Jurisprudence Of The October 2007 Supreme Court Term (The Twentieth Annual Supreme Court Review), Richard Klein
Richard Daniel Klein
No abstract provided.
Prolegomenon On The Status Of The Hopey, Changey Thing In American Criminal Justice, Frank O. Bowman Iii
Prolegomenon On The Status Of The Hopey, Changey Thing In American Criminal Justice, Frank O. Bowman Iii
Faculty Publications
This is an introductory essay to Volume 23, Number 2, of the FEDERAL SENTENCING REPORTER, which considers the state of American criminal justice policy in 2010, two years after the "Change" election of 2008. Part I of the essay paints a statistical picture of trends in federal criminal practice and sentencing over the last half-decade or so, with particular emphasis on sentence severity and the degree of regional and inter-judge sentencing disparity. The statistics suggest that the expectation that the 2005 Booker decision would produce a substantial increase in the exercise of judicial sentencing discretion and a progressive abandonment of …
Grand Jury Innovation: Toward A Functional Makeover Of The Ancient Bulwark Of Liberty, Roger A. Fairfax Jr.
Grand Jury Innovation: Toward A Functional Makeover Of The Ancient Bulwark Of Liberty, Roger A. Fairfax Jr.
William & Mary Bill of Rights Journal
No abstract provided.
Is Punishment Relevant After All? A Prescription For Informing Juries Of The Consequence Of Conviction, Jeffrey Bellin
Is Punishment Relevant After All? A Prescription For Informing Juries Of The Consequence Of Conviction, Jeffrey Bellin
Faculty Publications
The American jury, once heralded as “the great corrective of law in its actual administration,” has suffered numerous setbacks in the modern era. As a result, jurors have largely become bystanders in a criminal justice system that relies on increasingly severe punishments to incarcerate tens of thousands of offenders each year. The overwhelming majority of cases are resolved short of trial and, even when trials occur, jurors are instructed to find only the facts necessary for legal guilt. Apart from this narrow task, jurors need not, in the eyes of the law, concern themselves with whether a conviction and subsequent …
Incarcerating Indigenous People Of The Wongatha Lands In The Eastern Goldfields Of Western Australia : Indigenous Leaders’ Perspectives, Stephen J. Bedells
Incarcerating Indigenous People Of The Wongatha Lands In The Eastern Goldfields Of Western Australia : Indigenous Leaders’ Perspectives, Stephen J. Bedells
Theses: Doctorates and Masters
The Wongi
people are Indigenous to the Goldfields region and account for just 10 per cent of the population; yet they make up 90 per cent of the prisoners. With Indigenous incarceration rates above 8,000 per 100,000 adult male population in Western Australia, imprisonment is clearly a common experience for Indigenous men and women that profoundly affect the lives of their families. Gaols are meant to be used as a sentence of last resort when the severity of the offence requires severe punishment and prevention of further offences requires close confinement. For this research, Wongi leaders were interviewed about their …
Grand Jury Innovation: Toward A Functional Makeover Of The Ancient Bulwark Of Liberty, Roger Fairfax
Grand Jury Innovation: Toward A Functional Makeover Of The Ancient Bulwark Of Liberty, Roger Fairfax
Articles in Law Reviews & Other Academic Journals
The grand jury is a "much maligned" organ of the criminal justice system.' Regularly employed in only about half of the states and grudgingly tolerated in the federal system,2 the American grand jury for two centuries has been criticized as costly, ineffective, overly-compliant, and redundant. Prescriptions have ranged from reforms designed to improve the grand jury's performance of its traditional filtering and charging functions to the outright abolition of the grand jury. Consequently, much of the scholarly defense of the grand jury seemingly has done little more than attempt to justify its very existence.
This Article seeks to take the …
Summary Of State V. Castaneda_Swm, 126 Nev. Adv. Op. No. 45, Sean W. Mcdonald
Summary Of State V. Castaneda_Swm, 126 Nev. Adv. Op. No. 45, Sean W. Mcdonald
Nevada Supreme Court Summaries
Appeal from order of dismissal of indecent exposure charges, after the district court judge concluded the state indecent exposure statute was unconstitutionally vague and overbroad.
Criminal Law And Procedure, Virginia B. Theisen, Stephen R. Mccullough
Criminal Law And Procedure, Virginia B. Theisen, Stephen R. Mccullough
University of Richmond Law Review
The authors have endeavored to select from the many cases and bills those that have the most significant practical impact on the daily practice of criminal law in the Commonwealth. Due to space constraints, the authors have stayed away from discussing settled principles, with a focus on the "take away" for a particular case.
"I'M Going To Dinner With Frank": Admissibility Of Nontestimonial Statements Of Intent To Prove The Actions Of Someone Other Than The Speaker—And The Role Of The Due Process Clause, Lynn Mclain
All Faculty Scholarship
A woman tells her roommate that she is going out to dinner with Frank that evening. The next morning her battered body is found along a country road outside of town. In Frank’s trial for her murder, is her statement to her roommate admissible to place Frank with her that night? Since the Court’s 2004 Crawford decision, the confrontation clause is inapplicable to nontestimonial hearsay such as this.
American jurisdictions are widely divided on the question of admissibility under their rules of evidence, however. Many say absolutely not. A sizeable number unequivocally say yes. A small number say yes, but …
But What If The Court Reporter Is Lying? The Right To Confront Hidden Declarants Found In Transcripts Of Former Testimony, Peter Nicolas
But What If The Court Reporter Is Lying? The Right To Confront Hidden Declarants Found In Transcripts Of Former Testimony, Peter Nicolas
BYU Law Review
No abstract provided.
The Terrorist Informant, Wadie E. Said
The Terrorist Informant, Wadie E. Said
Washington Law Review
A man sets himself on fire in front of the White House in a dispute with the Federal Bureau of Investigation (FBI). He has been working as an informant for the FBI in a high-profile terrorism prosecution and is unhappy with the $100,000 he has been paid so far. He has also been recently convicted of bank fraud. As a result, the government declines to call him as a witness, given the damage his actions have on his credibility and trustworthiness. This incident underscores the difficulty inherent in relying on paid informants to drive a prosecution, where material considerations such …
The Messy Reality Of Organised Crime Research, Mark Findlay, Nafis Hanif
The Messy Reality Of Organised Crime Research, Mark Findlay, Nafis Hanif
Research Collection School of Social Sciences
The analysis starts out by confronting and exposing the ideological motivations for dualism in conventional organised crime research. In order to suggest a cognitive pathway beyond this restrictive normative frame, it is essential to appreciate its potency and resilience. Law enforcement language buoyed up by popular culture representations of gangs, syndicates and crime bosses have become the accepted starting point for much research in the field. Research from this perspective, we suggest, plays its own part in organised crime mystification and as such retards the critical utility of enterprise theory. Next the paper shows how distracted and distorted theorising infects …
Don't Answer The Door: Montejo V. Louisiana Relaxes Police Restrictions For Questioning Non-Custodial Defendants, Emily Bretz
Don't Answer The Door: Montejo V. Louisiana Relaxes Police Restrictions For Questioning Non-Custodial Defendants, Emily Bretz
Michigan Law Review
In 2009, the Supreme Court held in Montejo v. Louisiana that a defendant may validly waive his Sixth Amendment right to counsel during police interrogation, even if police initiate interrogation after the defendant's invocation of the right at the first formal proceeding. This Note asserts that Montejo significantly altered the Sixth Amendment protections available to represented defendants. By increasing defendants' exposure to law enforcement, the decision allows police to try to elicit incriminating statements and waivers of the right to counsel after the defendant has expressed a desire for counsel. In order to protect the defendant's constitutional guarantee of a …
A Search For The Truth Or Trial By Ordeal: When Prosecutors Cross-Examine Adolescents How Should Courts Respond, Frank E. Vandervort
A Search For The Truth Or Trial By Ordeal: When Prosecutors Cross-Examine Adolescents How Should Courts Respond, Frank E. Vandervort
Articles
It is an axiom of the law that cross-examination is, in John Henry Wigmore's words, the "greatest legal engine ever invented for the discovery of truth." In part because of its perceived utility in getting to the truth of a matter, courts are generally reluctant, despite broad authority to do so, to step in and to govern the conduct of cross-examination. But is cross-examination invariably calculated to ascertain the truth? While most lawyers are familiar with Wigmore's famous quotation, few are familiar with the caveat that shortly follows it: "A lawyer can do anything with cross-examination.. . . He may, …
Summary Of Hoagland V. State, 126 Nev. Adv. Op. 37, Meredith Still
Summary Of Hoagland V. State, 126 Nev. Adv. Op. 37, Meredith Still
Nevada Supreme Court Summaries
The district court rejected appellant Richard William Hoagland’s argument that necessity is a defense to driving under the influence of alcohol (DUI). The judge did not permit Hoagland to submit jury instructions on the defense or to present evidence to the jury to support the defense. In this case, the Nevada Supreme Court considered whether a defendant may assert a necessity defense to DUI.
That Ain't Kosher, Robert Steinbuch, Brett Tolman
That Ain't Kosher, Robert Steinbuch, Brett Tolman
University of Arkansas at Little Rock Law Review
No abstract provided.
Response To "Snyder V. Louisiana: Continuing The Historical Trend Towards Increased Scrutiny Of Peremptory Challenges", Bidish J. Sarma
Response To "Snyder V. Louisiana: Continuing The Historical Trend Towards Increased Scrutiny Of Peremptory Challenges", Bidish J. Sarma
Michigan Law Review First Impressions
John P. Bringewatt's recent note makes several important observations about the Supreme Court's opinion in Snyder v. Louisiana. Although he provides reasonable support for the claim that Snyder represents a sea change in Batson jurisprudence, the US Supreme Court's fresh opinion in Thaler v. Haynes (rendered on February 22, 2010) reads the Snyder majority opinion narrowly and suggests the possibility that Snyder is not as potent as it should be. The Haynes per curiam's guarded reading of Snyder signals the need for courts to continue to conduct the bird's-eye cumulative analysis that the Court performed in Miller-El v. Dretke[hereinafter Miller-El …
Protecting The Homeless Under Vulnerable Victim Sentencing Guidelines: An Alternative To Inclusion In Hate Crime Laws, Katherine B. O'Keefe
Protecting The Homeless Under Vulnerable Victim Sentencing Guidelines: An Alternative To Inclusion In Hate Crime Laws, Katherine B. O'Keefe
William & Mary Law Review
No abstract provided.
Unfettered Discretion: Criminal Orders Of Protection And Their Impact On Parent Defendants, David Jaros
Unfettered Discretion: Criminal Orders Of Protection And Their Impact On Parent Defendants, David Jaros
All Faculty Scholarship
The last two decades have witnessed an astonishing increase in the use of the criminal justice system to police neglectful parents. Recasting traditional allegations of neglect as criminal charges of endangering the welfare of a child, prosecutors and the police have involved criminal courts in the regulation of aspects of the parent child relationship that were once the sole province of family courts. This Article explores the legal implications of vesting judges in these cases with the unfettered discretion to issue protective orders that criminalize contact between a parent and her child. I argue that procedures for issuing protective orders …
The Tainted Federal Prosecutor In An Overcriminalized Justice System, Ellen S. Podgor
The Tainted Federal Prosecutor In An Overcriminalized Justice System, Ellen S. Podgor
Washington and Lee Law Review
No abstract provided.
The French Prosecutor In Question, Jacqueline S. Hodgson
The French Prosecutor In Question, Jacqueline S. Hodgson
Washington and Lee Law Review
Both the pre-trial and dispositive roles of the French prosecutor have continued to expand over the last decades with a resulting shift in power away from the trial judge and the juge d'instruction. The recommendations of the Liger Commission in 2009 went beyond the redistribution of authority and proposed the abolition of the juge d'instruction, placing the prosecutor in charge of all criminal investigations, even the most serious, complex, and sensitive. At the same time, the prosecutor's role and status has been challenged in a number of ways-in particular concerning her function as judicial supervisor of the detention and interrogation …
The Affects Of Apprendi V. New Jersey On The Use Of Dna Evidence At Sentencing—Can Dna Alone Convict Of Unadjudicated Prior Acts?, Katharine C. Lester
The Affects Of Apprendi V. New Jersey On The Use Of Dna Evidence At Sentencing—Can Dna Alone Convict Of Unadjudicated Prior Acts?, Katharine C. Lester
Washington and Lee Journal of Civil Rights and Social Justice
No abstract provided.
Brady's Bunch Of Flaws, Daniel S. Medwed
Brady's Bunch Of Flaws, Daniel S. Medwed
Washington and Lee Law Review
The 1970s television program The Brady Bunch provided a lighthearted and optimistic portrayal of American family life. A divorced man with three brown-haired boys married a divorced woman with three blonde daughters. They melded together into a happy, well-adjusted crew committed to mad-cap adventures accompanied by syrupy background music. Yet the promise of The Brady Bunch was illusory. Divorce has wreaked havoc on this country. The problems that derive from divorce and remarriage are multifaceted; they seldom lend themselves to tidy resolution in thirty minutes, let alone a lifetime. The show provided a distractionand a disservice. It sent an inaccurate …
The Worldwide Accountability Deficit For Prosecutors, Ronald F. Wright, Marc L. Miller
The Worldwide Accountability Deficit For Prosecutors, Ronald F. Wright, Marc L. Miller
Washington and Lee Law Review
In democratic governments committed to the rule of Law, prosecutors should be accountable to the public, just like other powerful government agents who make important decisions. The theoretical need for prosecutor accountability, however, meets practical shortcomings in criminal justice systems everywhere. Individual prosecutors everywhere express allegiance to the rule of Law through the wise decisions made by each prosecutor and across offices as a whole. But the claim "trust us" does not in fact generate the level of public trust that one should expect in a government of Laws. Institutional strategies to guarantee prosecutor accountability all fall short of the …
Overcoming Defiance Of The Constitution: The Need For A Federal Role In Protecting The Right To Counsel In Georgia, Stephen B. Bright, Lauren Sudeall Lucas
Overcoming Defiance Of The Constitution: The Need For A Federal Role In Protecting The Right To Counsel In Georgia, Stephen B. Bright, Lauren Sudeall Lucas
Faculty Publications By Year
In their issue brief, Mr. Bright and Ms. Lucas discuss the problems that have existed in Georgia’s indigent defense system since Gideon was handed down. They contend that “[a]ll three branches of Georgia’s government have failed in their constitutional responsibility to ensure that poor people accused of crimes are effectively represented by competent lawyers.” They also argue that “[t]he federal government, which has made immense contributions to the prosecution of criminal cases in Georgia through grants to law enforcement, prosecutors, and courts, shares responsibility for the integrity of Georgia’s criminal justice system and the enforcement of the constitutional right to …
Uncertainty And The Search For Truth At Trial: Defining Prosecutorial "Objectivity" In German Sexual Assault Cases, Shawn Marie Boyne
Uncertainty And The Search For Truth At Trial: Defining Prosecutorial "Objectivity" In German Sexual Assault Cases, Shawn Marie Boyne
Washington and Lee Law Review
According to German legal scholar, Claus Roxin, German prosecutors are the "most objective civil servants" in the world. Roxin 's assessment of German prosecution practice reflects the conviction of many German legal scholars that prosecutors in Germany's inquisitorial system function as second judges dedicated to finding the objective "truth." In this Article I investigate how prosecutors "translate" the normative duty of objectivity enshrined in the German penal code into observable practices on the ground I examine prosecutorial decision-making in three sexual assault trials. Sexual assault cases pose unique challenges to prosecutors as well as to the definition of objectivity. Because …
Prosecutors As Judges, Erik Luna, Marianne Wade
Prosecutors As Judges, Erik Luna, Marianne Wade
Washington and Lee Law Review
No abstract provided.
A Complicated Environment: The Problem With Extending Victims' Rights To Victims Of Environmental Crimes, Andrew Atkins
A Complicated Environment: The Problem With Extending Victims' Rights To Victims Of Environmental Crimes, Andrew Atkins
Washington and Lee Law Review
No abstract provided.
The Racial Geography Of The Federal Death Penalty, G. Ben Cohen, Robert J. Smith
The Racial Geography Of The Federal Death Penalty, G. Ben Cohen, Robert J. Smith
Washington Law Review
Scholars have devoted substantial attention to both the overrepresentation of black defendants on federal death row and the disproportionate number of federal defendants charged capitally for the murder of white victims. This attention has not explained (much less resolved) these disquieting racial disparities. Little research has addressed the unusual geography of the federal death penalty, in which a small number of jurisdictions are responsible for the vast majority of federal death sentences. By addressing the unique geography, we identify a possible explanation for the racial distortions in the federal death penalty: that federal death sentences are sought disproportionately where the …
State V. Grier And The Erroneous Adoption Of The "Punishment-Based" Standard Of Review For Ineffective Assistance Of Counsel Claims Based On All-Or-Nothing Strategies, Jacque St. Romain
State V. Grier And The Erroneous Adoption Of The "Punishment-Based" Standard Of Review For Ineffective Assistance Of Counsel Claims Based On All-Or-Nothing Strategies, Jacque St. Romain
Washington Law Review
In June 2009, the Washington State Court of Appeals, Division II, reversed Kristina Grier’s second-degree murder conviction in State v. Grier. The court concluded that Grier had received ineffective assistance of counsel because her attorney failed to request jury instructions for any lesser-included offenses, choosing instead to pursue an all-or-nothing defense strategy. That same month, Division I issued a contrary opinion, finding the pursuit of an all-or-nothing strategy reasonable. The Washington State Supreme Court has granted certiorari and will soon hear oral arguments in Grier. This Comment reviews federal and state courts’ approaches to questions of ineffective assistance of …