Law Commons^™

Privacy And National Politics: Fingerprint And Dna Litigation In Japan And The United States Compared, Dongsheng Zang

Pace Law Review

No abstract provided.

Criminal Acts And Basic Moral Equality, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Modern criminal justice presupposes that persons are not morally equal. On the contrary, those who do wrong are viewed by the law as less worthy of respect, concern and decent treatment: Offenders, it is said, “deserve” to suffer for their misdeeds. Yet, there is scant logical or empirical basis for the law's supposition that offenders are morally inferior. The usual reasoning is that persons who intentionally or knowingly do wrong are the authors and initiators of their acts and, as such, are morally responsible for them. But this reasoning rests on the assumption that a person's mental states, such as …

The Prosecutor In The Mirror: Conviction Integrity Units And Brady Claims, Lissa Griffin, Daisy Mason

Elisabeth Haub School of Law Faculty Publications

In Brady v. Maryland, the Supreme Court held that a prosecutor has a due process obligation to disclose exculpatory evidence that is material to guilt or punishment. The failure to fulfill this duty is particularly insidious because it bears directly on both whether an innocent defendant may have been convicted as well as on whether the adjudicatory process was fair. The failure to disclose exculpatory evidence has been characterized as “epidemic” and has been documented to have made a major, outsized contribution in cases that resulted in exonerations. It is not surprising, then, that conviction integrity units in prosecutor’s offices …

Doe V. Nestle, S.A.: Chocolate And The Prohibition On Child Slavery, Megan M. Coppa

Pace International Law Review

West Africa is presently home to approximately 1.5 million acres of cocoa farmland, which subsequently produces 70% of the world’s current chocolate supply. Côte d’Ivoire, also known as the Ivory Coast, is one of the largest cocoa producing countries within West Africa.

The increase of farmland and the need to control the deteriorating conditions have always created a demand for farm workers. Regrettably, more than 1.5 million cocoa farm workers in West Africa are currently children. These child workers are exposed to hazardous dust, flames, smoke, and chemicals, are required to utilize dangerous tools that they are not properly trained …

Justice Delayed, Justice Denied? The Search For Accountability For Alleged Wartime Atrocities Committed In Sri Lanka, Aloka Wanigasuriya

Pace International Law Review

During the final stages of its nearly three-decades-long civil war in 2009, Sri Lanka attracted considerable international attention due to the allegations of international crimes that were said to have been committed both by the Sri Lankan government Armed Forces, the Guerilla Force, and the Liberation Tigers of Tamil Eelam (LTTE). According to United Nations (UN) experts, an estimated 40,000 civilians were killed during the final offensive, which lasted from January to May 2009. However, the Sri Lankan government has set this figure at 9,000 with no civilian casualties. Several UN bodies found credible allegations that international crimes were committed …

Nycla Justice Center Task Force: Solving The Problem Of Innocent People Pleading Guilty

Pace Law Review

No abstract provided.

The Devil In Recent American Law, L. Joe Dunman

Pace Law Review

Despite its secular aspirations, the American legal system is permeated by Christian and other religious ideas. One of the religious ideas that frequently appears in recent American law is the devil—the unholy antithesis of all that is good in the world. Called by many names, such as Satan, Lucifer, or the Antichrist, the devil is no stranger to the United States court system. The devil arises from the hot depths primarily in five contexts: (1) as a source of injury to reputation in defamation cases; (2) as a prejudicial invocation made during criminal trials to secure conviction, harshen sentences, or …

Unreasonable Revelations: God Told Me To Kill, Linda Ross Meyer

Pace Law Review

This Article focuses on one extreme example of the law’s response to unreasonable revelations that is starkly presented in a series of unsettling murders: those involving criminal defendants who claim they committed their crime because God told them to do it—known as “deific decree” cases. This example of the conflict between revelation and reason tests the limits of law’s ability to understand and countenance revelation when the stakes are highest. The deific decree cases also present the hardest epistemological problems, because the defendant claims that the experience of God’s command is self-authenticating—a position fundamentally at odds with both scientific and …

Judging Judges Fifty Years After – Was Judge Julius Hoffman’S Conduct So Different?, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In Chicago, Illinois--and in courtrooms across the United States--judicial misconduct has affected trial outcomes as long as there have been trials. While Judge Julius Hoffman's conduct in the “Chicago Eight” trial is an egregious example of judicial behavior toward criminal defendants, this piece's examination of at least ten different categories of misconduct in dozens of cases makes the argument that misbehavior by judges is less of an exception to the rule of impartiality than the thinking public might know. In considering these brazen examples, practitioners and academics alike can evaluate how to best confront the extent to which conduct like …

Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

Judicial failure to recognize social media's influence on juror decision making has identifiable constitutional implications. The Sixth Amendment right to a fair trial demands that courts grant a defendant's change of venue motion when media-generated pretrial publicity invades the unbiased sensibility of those who are asked to sit in judgment. Courts limit publicity suitable for granting a defendant's motion to information culled from newspapers, radio, and television reports. Since about 2014, however, a handful of defendants have introduced social media posts to support their claims of unconstitutional bias in the community. Despite defendants' introduction of negative social media in support …

The Concrete Jungle: Where Dreams Are Made Of . . . And Now Where Children Are Protected, Samantha A. Mumola

Pace Law Review

The tragic and unsettling story of Kalief Browder has notably emerged as a prominent illustration of our criminal justice system’s historical failure to protect our youth. Kalief’s story gained massive media attention with the help of a TIME documentary series featured on Netflix and famous A-listers such as music artist Jay-Z and TV host Rosie O’Donnell. It is hard to ignore the fact that Kalief Browder was cheated by the system; he chose suicide to escape his demons, which developed after undeserved time spent at Riker’s – a place he would have never experienced had he initially been tried as …

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because the …

Special Problems For Prosecutors In Public Corruption Prosecutions, Mimi Rocah, Carrie Cohen, Steve Cohen, Daniel Cort, Bennett L. Gershman

Pace Law Review

The focus of this panel is not so much on the academic part of McDonnell, the case law. Of course, you’ll hear the name McDonnell and we’ll talk about that.

But we’re trying to talk a little more broadly about public corruption prosecutions in general. Some of these are unique issues. You heard a little bit about them from the former people who have done them, what special unique problems are involved in them and challenges the prosecutors face and what effect, if any.

How Has Mcdonnell Affected Prosecutors’ Ability To Police Public Corruption? What Are Politicians And Lobbyists Allowed To Do, And What Are Prosecutors Able To Prosecute?, Vincent L. Briccetti, Amie Ely, Alexandra Shapiro, Dan Stein

Pace Law Review

The question posed to the panelists on the first panel is: How has McDonnell affected prosecutors’ ability to police public corruption? What can politicians and lobbyists do and what can prosecutors prosecute?

New York Breaks Gideon’S Promise, Rebecca King

Pace Law Review

In 1963, the Supreme Court of the United States held that criminal defendants have the constitutional right to counsel, regardless of whether they can afford one, in the famous case of Gideon v. Wainwright. However, statistics, as well as public defense attorneys, reveal that the Supreme Court’s decision has yet to be fulfilled. Part of the problem is due to the system of mass incarceration in the United States. In 2013, the Brennan Center for Justice reported that the prison population reached 2.3 million individuals, compared to the 217,000 inmates imprisoned when Gideon was decided. The American Bar Association estimates …

The Federal Criminal Forfeiture Statute: Reining In The Government’S Previously Unbridled Ability To Seize Pretrial Assets, Kristyn Fleming Francese

Pace Law Review

American organized crime movies are synonymous with a climatic raid and seizure of illegal assets – typically drugs and guns. But what is really encompassed within the Government’s grasp; what are the “illegal assets”? The truth is that the Government has a wide reach and the criminal seizures don’t end when the screen goes black and the credits roll. The Federal Criminal Forfeiture Statute, as applied to RICO and CCE cases, typically entails the forfeiture of any asset connected to the underlying crimes. Given that criminal forfeiture penalties have ethical and constitutional considerations, it is not surprising to learn that …

Safety From Plea-Bargains’ Hazards, Boaz Sangero

Pace Law Review

There is a significant risk—in safety terms, a hazard—that the wide gap between the defendant’s anticipated punishment if convicted at trial and the relatively lighter punishment if he confesses in a plea-bargain will lead not only the guilty but also the innocent to confessing. In practice, only 3% of all federal cases go to trial, and only 6% of state cases. In the remainder, conviction is obtained through plea-bargaining. Indeed, plea-bargains are one of the central mechanisms facilitating false convictions.

In other fields, the meaning of a “safety-critical system” is well understood, and resources are, therefore, invested in modern safety …

The State Of American Juvenile Justice, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

This article will summarize the major twenty-first century state legislative and case law developments. It will also briefly note the expansion of state and local initiatives limiting the prosecution of youthful offenders, such as diversion and restorative justice programs.

The state of American juvenile justice has improved significantly in the past several years. However, the reforms are best viewed as a work in progress. Much has been accomplished, but much remains to be accomplished. Crucially, after a generation of “tough on kids” measures, we are on the road toward a true “justice” system for children.

A Penal Colony For Bad Lawyers, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In this article I set out what I believe is an extreme and unconventional way to discipline egregiously bad lawyers. For starters, I think it might be useful to survey briefly the kinds of lawyering conduct currently subject to disciplinary sanctions. Regulation of the conduct of defense lawyers in the U.S. is hedged by various legal and professional rules that are enforced by courts and disciplinary bodies essentially to ensure a minimum level of competent and ethical representation. The Sixth Amendment right to counsel--the so-called “sacred” right--seeks to ensure at least a reasonable degree of lawyering skill. Also, professional codes …

Context At The International Criminal Court, Hassan Ahmad

Pace International Law Review

In this article, I propose a contextual approach to ICC jurisdiction normatively to be adopted by the Court’s Office of the Prosecutor and Pre-Trial Chamber in investigating and eventually prosecuting crimes under the Rome Statute. Under this contextual approach, I contend that both the Prosecutor and Pre-Trial Chamber are able to consider evidence outside the traditional notions of territorial and temporal jurisdiction to conceptualize a conflict in its entirety. The totality of cross-border and inter-temporal evidence should be considered when deciding whether to investigate attacks that the Prosecutor has a reasonable basis to believe fall within the Court’s jurisdiction. Procedurally, …

Preservation: What Is It Good For?, Yuval Simchi-Levi

Pace Law Review

The Article proceeds as follows: in Part A, the preservation doctrine is defined. In Part B, the history of the preservation doctrine is described. In Part C, there is an explanation as to the purpose of preservation. In Part D, there is a description of the appellate process in New York. In Part E, the statutory rules of the New York Court of Appeals are described. In Part F, there is a description of how the rules of preservation have loosened in New York since 2009. In Part G, there is a statistical analysis of the consequences of loosening the …

Quantifying The Contours Of Power: Chief Justice Roberts & Justice Kennedy In Criminal Justice Cases, Michael A. Mccall, Madhavi M. Mccall

Pace Law Review

This Article seeks to contribute to the debate with an empirical analysis of voting behavior in criminal justice cases decided during the first ten Terms of the Roberts Court era. The following section presents the study’s case selection and introduces the types of measures used to illuminate influence on the High Court (Part II). Court- and individual-level tendencies (Part III) identify potential spheres of influence occupied by Chief Justice Roberts and Justice Kennedy. These bases of judicial power are examined separately in Part IV (Chief Justice Roberts) and Part V (Justice Kennedy). Some possible implications of Justice Scalia’s death on …

The Nypd And The Mentally Ill, Randolph M. Mclaughlin, Debra S. Cohen

Elisabeth Haub School of Law Faculty Publications

Recently, a federal court judge cleared the way for a trial in the case of Mohamed Bah, a 28-year-old student killed in his home by NYPD officers after his mother, Hawa Bah, called 911 for assistance to take him to a hospital. Southern District Judge P. Kevin Castel's ruling denied New York City's motion seeking to dismiss claims of unlawful entry and excessive force against the police officers who responded to Mr. Bah's apartment, breached his door and then shot and killed him. Mr. Bah's family alleges that the final and fatal shot to Mr. Bah's head was inflicted at …

Ministers Of Justice And Mass Incarceration, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

Over the past few years, scholars, legislators, and politicians have come to recognize that our current state of “mass incarceration” is the result of serious dysfunction in our criminal justice system. As a consequence, there has been significant attention to the causes of mass incarceration. These include the war on drugs and political decisions based on a “law and order” perspective. Congressional and state legislative enactments increased the financing of the expansion of police powers and provided for severely punitive sentencing statutes, thereby giving prosecutors uniquely powerful weapons in securing guilty pleas. All of this occurred as crime rates dropped. …

Lost In A Maze Of Character Evidence: How The Federal Courts Lack A Cohesive Approach To Applying Federal Rule Of Evidence 404(B) In Drug Distribution Cases, Brian Byrne

Pace Law Review

The admission of a criminal defendant’s prior bad acts can be a powerful tool for attaining a conviction. The federal courts are currently divided as to whether the defendant’s prior drug use is admissible under Rule 404(b) of the Federal Rules of Evidence when the defendant is charged with distributing a controlled dangerous substance.

Part I of this Comment will briefly explore the historical roots of Rule 404(b). Part II will examine the permissible purposes for admitting prior bad acts under Rule 404(b). Part III will discuss the circuit split that has developed as to whether the defendant’s prior drug …

The Prosecutor’S Duty Of Silence, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Prosecutors enjoy broad opportunities to communicate with the public outside the courtroom. Justice Holmes’s famous dictum -- “The theory of our system is that conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print” – is just that – a “theory.” The reality is otherwise. Prosecutors, and defense lawyers too, engage in extrajudicial speech frequently, and often irresponsibly. But in contrast to other lawyers, prosecutors have a higher “special” duty to serve justice rather than a private client. And …

In Memory Of Monroe Freedman: The Hardest Question For A Prosecutor, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

I’ve chosen to honor Monroe Freedman’s iconic essay on the hardest questions for a criminal defense attorney by posing the same question for prosecutors. What is the hardest question for a prosecutor? This in itself is a hard question. The thousands of federal, state, and local prosecutors in the country would likely give widely varying responses – discretionary charging, immunity grants, bargained pleas, unreliable witnesses, police testimony, and disclosure duties, for starters. Too, prosecutors are not a generic group. Just as some defense lawyers might recoil or be indifferent to Freedman’s provocative thesis, so might many prosecutors reject or be …

You Have The Right To Be Confused! Understanding Miranda After 50 Years, Bryan Taylor

Pace Law Review

Part I of this article briefly explores the background and historical context that ultimately led to the Miranda decision. As the late Dr. Carl Sagan once said, “you have to know the past to understand the present.” Understanding the circumstances and cases leading up to Miranda helps in the overall application of Miranda to cases of today. Part II addresses whether a statement should be allowed into evidence and provides a practical working approach to conduct a Miranda analysis. This innovative approach provides a step-by-step process in determining the admissibility of statements pursuant to Miranda and its progeny. This process …

Unequal Access To Justice: Solla V. Berlin And The Unprincipled Evisceration Of New York’S Eaja, Armen H. Merjian

Pace Law Review

Solla is noteworthy not merely in light of the baleful effects of its ruling, but because of its reasoning: it is categorically wrong. The decision wholly elides a cornerstone and settled principle of New York welfare law, namely, that in the administration of public assistance, the municipalities act as the agents of the State, while blatantly violating the most fundamental of agency principles, namely, that a principal is vicariously liable for the actions of its agent acting within the scope of its authority. Indeed, this principal/agent relationship is established both by statute and by decades of uniform state and federal …

When Are The People Ready? The Interplay Between Facial Sufficiency And Readiness Under Cpl Section 30.30, John H. Wilson

Pace Law Review

In this article, we will explore the intersecting concepts of conversion, facial sufficiency, and readiness. As we shall see, readiness for trial does not necessarily follow from the conversion of a complaint and dismissal on CPL section 30.30 grounds does not necessarily follow from a finding of facial insufficiency.