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An Alternative To Death-Qualification: The Nonunanimous Penalty Jury, Jane Tucker Mar 2012

An Alternative To Death-Qualification: The Nonunanimous Penalty Jury, Jane Tucker

Student Scholarship Papers

Eliminating jurors for cause based on their opinions concerning the death-penalty (“death-qualification”) is a widespread practice that has been upheld by multiple Supreme Court cases, but which has been widely criticized for resulting in juries that studies have shown to be more conviction-prone, and biased toward the prosecution, in addition to being unrepresentative of the community at large. This Note offers a possible solution to the problems caused by death-qualification at both the guilt and penalty phases, unlike those proposed thus far: specifically, the elimination of death-qualification altogether, coupled with the relaxation of the unanimity requirement at the penalty phase.


Rebuilding Justice: A Review Of The Collapse Of American Criminal Justice, By William J. Stuntz, Albert Monroe Feb 2012

Rebuilding Justice: A Review Of The Collapse Of American Criminal Justice, By William J. Stuntz, Albert Monroe

Student Scholarship Papers

America’s criminal justice system has led to extremely high incarceration rates and high crime rates in many poor and working-class neighborhoods. William Stuntz’s final book, The Collapse of American Criminal Justice suggests ways to improve America’s system of criminal justice. My review compares Stuntz’s view of American criminal justice with the views of empirical social scientists Mark Kleiman and David Kennedy, whose work is used around the country in successful social experiments to reduce crime. Stuntz believed that changes in law and society have delegated too much power to prosecutors and not enough to judges, juries ...


Community Policing In New Haven: Social Norms, Police Culture, And The Alleged Crisis Of Criminal Procedure, Caroline Van Zile May 2011

Community Policing In New Haven: Social Norms, Police Culture, And The Alleged Crisis Of Criminal Procedure, Caroline Van Zile

Student Legal History Papers

Nick Pastore will forever be known as one of New Haven’s most colorful historical figures. The Chief of Police in New Haven from 1990 to 1997, Pastore was well-known for his outrageous comments and unusual antics. New Haven’s chief proponent of community policing, Pastore referred to himself in interviews as “’an outstanding patrol officer,’ a ‘super crime-fighting cop,’ ‘a good cop with the Mafia,’ [and] ‘Sherlock Holmes.’” Pastore, unlike his immediate predecessor, highly valued working with the community and advocated for a focus on reducing crime rather than increasing arrests. Pastore once informed that New York Times that ...


When Machines Are Watching: How Warrantless Use Of Gps Surveillance Technology Terminates The Fourth Amendment Right Against Unreasonable Search, Priscilla Smith, Nabiha Syed, Albert Wong, David Thaw Feb 2011

When Machines Are Watching: How Warrantless Use Of Gps Surveillance Technology Terminates The Fourth Amendment Right Against Unreasonable Search, Priscilla Smith, Nabiha Syed, Albert Wong, David Thaw

Lecturer and Other Affiliate Scholarship Series

The use of GPS surveillance technology for prolonged automated surveillance of American citizens is proliferating, and a direct split between the Ninth and D.C. Circuits on whether warrants are required under the Fourth Amendment for such use of GPS technology is bringing the issue to a head in the Supreme Court. A Petition for Certiorari is pending in the Ninth Circuit case which held that warrants are not required, and a second Petition is likely from the Government in the D.C. Circuit case holding that warrants are required. In this paper, we argue first, that where a technology ...


Do The Fifth And Sixth Amendments Prohibit The Designation Of U.S. Persons Under The International Emergency Economic Powers Act?, Eric Sandberg-Zakian Apr 2010

Do The Fifth And Sixth Amendments Prohibit The Designation Of U.S. Persons Under The International Emergency Economic Powers Act?, Eric Sandberg-Zakian

Student Scholarship Papers

The International Emergency Economic Powers Act (IEEPA) empowers the executive branch to designate organizations and individuals “Specially Designated Global Terrorists.” Though IEEPA designation is used against both domestic and foreign entities, its consequences are most severe within the United States. The designee’s assets are frozen and transacting with the designee becomes a federal felony. For an American organization, IEEPA designation is a death sentence. For an Amercan individual, it amounts to house arrest. This Article analyzes IEEPA using the Mendoza-Martinez test and concludes that IEEPA designation of U.S. persons violates the Fifth and Sixth Amendments by imposing punishment ...


Deal Or No Deal? Remedying Ineffective Assistance Of Counsel During Plea Bargaining, David A. Perez Feb 2010

Deal Or No Deal? Remedying Ineffective Assistance Of Counsel During Plea Bargaining, David A. Perez

Student Scholarship Papers

Does a defendant suffer a remedial prejudice if, as a result of ineffective assistance of counsel during plea-bargaining, s/he rejects a favorable plea offer but subsequently receives a fair trial? Courts on both the federal and state levels remain bitterly divided over this question. Although there is no clear answer, courts have generally taken one of three approaches. The first two options – ordering a new trial or reinstating the original plea offer – are remedial, and assume that the defendant suffers prejudice. The third option finds that the defendant suffered no prejudice because s/he ultimately received a fair trial ...


The Law Of Unintended Consequences: A Critique Of The Dilutive Effects And Efficiency Costs Of Multilayer Regulation, Ilya O. Podolyako Apr 2009

The Law Of Unintended Consequences: A Critique Of The Dilutive Effects And Efficiency Costs Of Multilayer Regulation, Ilya O. Podolyako

Student Scholarship Papers

This Article examines the role obstruction charges play in the regulatory framework covering modern public corporations and their members. It finds that prosecutors’ reliance on obstruction charges undermines the legitimacy of substantive rules for enterprise behavior. This pattern not only causes significant inefficiency on its own, but indicates a broader problem with multilayer regulation. That is, in a previously regulated arena, the pre-existing legal environment may warp a new set of rules in undesirable ways. The Article concludes by proposing a means to address this problem generally and remove unnecessary costs associated with the compliance regime specifically.


Insider Trading In Congress - The Need For Regulation, Alex O. Kardon, Matthew Barbabella, Peter Molk, Daniel Cohen Feb 2009

Insider Trading In Congress - The Need For Regulation, Alex O. Kardon, Matthew Barbabella, Peter Molk, Daniel Cohen

Student Scholarship Papers

Is regulation of Congressional insider trading desirable? We intend to use the STOCK Act (H.R. 682) as a springboard for approaching the need for Congressional insider trading regulation from a slightly more academic perspective. First, we describe the STOCK Act by placing it in recent historical context. Understanding the motivation to reform Congressional ethics that existed earlier this decade is crucial to evaluating the STOCK Act and its prospects for eventual passage by Congress. Second, we review the body of insider trading law that already operates to restrain corporate insiders and others from making some trades. The most important ...


Nowhere To Hide: Overbreadth And Other Constitutional Challenges Facing The Current Designation Regime, Ilya O. Podolyako Sep 2008

Nowhere To Hide: Overbreadth And Other Constitutional Challenges Facing The Current Designation Regime, Ilya O. Podolyako

Student Scholarship Papers

This Article examines the legal foundation and policy implications of the President’s power to designate terrorist organizations. These administrative actions carry severe repercussions because of the criminal prohibition on knowingly providing material support to the designated entities, codified at 18 U.S.C. § 2339B. Due to the overlap of the President’s Commander-in-Chief power to block enemy assets and specific Congressional authorization of such actions, the designations themselves appear to be immune from constitutional challenges. It is the addition of concomitant criminal sanctions, however, that drastically expands the potency of the designations and turns them into an effective national ...


The Future Of Teague Retroactivity, Or “Redressability,” After Danforth V. Minnesota: Why Lower Courts Should Give Retroactive Effect To New Constitutional Rules Of Criminal Procedure In Postconviction Proceedings, Christopher N. Lasch Aug 2008

The Future Of Teague Retroactivity, Or “Redressability,” After Danforth V. Minnesota: Why Lower Courts Should Give Retroactive Effect To New Constitutional Rules Of Criminal Procedure In Postconviction Proceedings, Christopher N. Lasch

Faculty Scholarship Series

Although the Supreme Court’s 1989 decision in Teague v. Lane generally prohibits the application of new constitutional rules of criminal procedure in federal habeas review of state-court judgments, the Court’s 2008 decision in Danforth v. Minnesota frees state courts from Teague’s strictures. Danforth explicitly permits state courts to fashion their own rules governing the retroactive application of new federal constitutional rules in postconviction proceedings, and leaves open the question whether lower federal courts are bound by Teague in postconviction review of federal criminal convictions.

In this Article, I examine the doctrinal underpinnings of the Court’s retroactivity ...


Initiating A New Constitutional Dialogue: The Increased Importance Under Aedpa Of Seeking Certiorari From Judgments Of State Courts, Christopher N. Lasch, Giovanna Shay Feb 2008

Initiating A New Constitutional Dialogue: The Increased Importance Under Aedpa Of Seeking Certiorari From Judgments Of State Courts, Christopher N. Lasch, Giovanna Shay

Faculty Scholarship Series

The Anti-Terrorism and Effective Death Penalty Act (AEDPA) contains a provision restricting federal courts from considering any authority other than holdings of the Supreme Court in determining whether to grant a state prisoner’s petition for habeas corpus. Through an empirical study of cert filings and cases decided by the Supreme Court, we assess this provision’s impact on the development of federal constitutional criminal doctrine. Before AEDPA and other restrictions on federal habeas corpus, lower federal courts and state courts contributed to doctrinal development by engaging in a “dialogue” (as described by Robert M. Cover and T. Alexander Aleinikoff ...


Does Miranda Protect The Innocent Or The Guilty?, Steven B. Duke Jan 2007

Does Miranda Protect The Innocent Or The Guilty?, Steven B. Duke

Faculty Scholarship Series

Miranda v. Arizona' is probably the most widely recognized court decision ever rendered. Thanks to movies and television, people the world over know about "Miranda rights." Governments around the globe have embraced Miranda-like rights. Suspects in South Korea must receive their "Miranda warning" before being interrogated. So must those in Mexico, Canada, and most European countries. Miranda's notoriety surely has something to do with the decision's kaleidoscopic symbolism. To some, Miranda embodies the respect due to criminal suspects. To others, it represents the professionalism of the police. Still others regard Miranda as a glaring example of the Supreme ...


The Case For Rational Basis Review Of General Suspicionless Searches And Seizures, Richard Worf Aug 2006

The Case For Rational Basis Review Of General Suspicionless Searches And Seizures, Richard Worf

Student Scholarship Papers

This Article examines the constitutional status of suspicionless searches and seizures of groups—an exceedingly important question in an age of terror, and a subject recently brought back to the forefront by the searches of subway passengers in New York City. It draws on process theory to argue that when a legislature has authorized a group search or seizure, courts should generally apply rational basis review. First, other areas of constitutional doctrine exhibit deep trust in the power of groups to protect their interests in the political process, and there is no reason why the Fourth Amendment should not do ...


The Experts Aren't Reliable Either: Why Expert Testimony On The Reliability Of Eyewitness Testimony Is Unwarranted In Alabama State Courts, Robin Preussel Aug 2006

The Experts Aren't Reliable Either: Why Expert Testimony On The Reliability Of Eyewitness Testimony Is Unwarranted In Alabama State Courts, Robin Preussel

Student Scholarship Papers

The article first summarizes the possible sources of error found in eyewitness testimony according to psychological and cognitive science research. The paper then explores the admissibility of this expert testimony under the existing rules of evidence according to both federal law and Alabama state law, as well as court commentary on its admissibility, and concludes the liberal admission of such testimony is not warranted in the case of Alabama. Taking into consideration the policies which constitute the state's provision of legal services to indigent defendants, five arguments counsel against the admission of expert testimony, including: the trial court's ...


Restructuring Hybrid Courts: Local Empowerment And National Criminal Justice Reform, Ethel Higonnet Mar 2005

Restructuring Hybrid Courts: Local Empowerment And National Criminal Justice Reform, Ethel Higonnet

Student Scholarship Papers

This paper explores the successes and failure of existing hybrids, evaluates the structural and theoretical advantages and disadvantages of the hybrid model, and outlines the flaws of international ad hocs that hybrids can remedy. In theory at least, hybrids can draw upon the strengths of international justice and the benefits of local prosecutions. However, in order to live up to their full potential, hybrids must be restructured to place more value in local expertise, connect better with local populations, and help rebuild local judicial systems If they are embedded into local justice systems, and their mandates are broadened to focus ...


A Plea Against Retributivism, James Q. Whitman Jan 2004

A Plea Against Retributivism, James Q. Whitman

Faculty Scholarship Series

As we all know, the United States has embarked on a campaign of intensifying harshness in criminal punishment over the last three decades or so. Longer prison sentences and the reinstatement of the death penalty are the most important aspects of this campaign, but they are only part of it. These thirty years of harsh justice have made for an epochal shift in American law, opening a large divide between the United States and the other countries of the western world. American criminal punishment is now staggeringly harsher than punishment in such countries as Germany, France, or Japan: In criminal ...


Bail Reform For The Eighties: A Reply To Senator Kennedy, Steven B. Duke Jan 1980

Bail Reform For The Eighties: A Reply To Senator Kennedy, Steven B. Duke

Faculty Scholarship Series

The Bail Reform Act of 1966 may rank as the most significant legislative reform of the criminal process of this century. A product of the "New Frontier" and the "Great Society," it reflected a broad consensus that society had the ability and the duty to alleviate tile disadvantages caused by poverty, racism, and powerlessness. The Act recognized that pretrial incarceration was frequently unnecessary to assure appearance at trial and that it was unjust and discriminatory when reasonable alternatives were available. Money bail was deemphasized, and the courts were directed to release persons without it when circumstances permitted.


Land Without Plea Bargaining: How The Germans Do It, John H. Langbein Jan 1979

Land Without Plea Bargaining: How The Germans Do It, John H. Langbein

Faculty Scholarship Series

The present Article demonstrates the error of this universalist theory of plea bargaining by showing how and why one major legal system, the West German, has so successfully avoided any form or analogue of plea bargaining in its procedures for cases of serious crime. The German criminal justice system functions without plea bargaining not by good fortune, but as a result of deliberate policies and careful institutional design whose essential elements are outlined in Part I. Part II addresses the American claims that a clandestine plea bargaining system lurks behind veils of German pretense.


The Technique Of Public Order: Evolving Concepts Of Criminal Law, George H. Dession Jan 1955

The Technique Of Public Order: Evolving Concepts Of Criminal Law, George H. Dession

Faculty Scholarship Series

T ODAY'S reappraisal of our criminal law was the subject suggested to me as
appropriate for the the legal contribution to this university-wide symposium.
I agreed, because I think-and hope that as I proceed you may feel-that this is
a matter of equal concern to us all. The stimulus to reappraisal derives at least
as much from advances in appreciation of the human creative potential and in
knowledge of human personality and behavior, emanating from the arts and
sciences, as from audits of the social losses and gains attributable to the operations of enforcement agencies.

We have learned that ...


The Mentally Ill Offender In Federal Criminal Law And Administration, George H. Dession Jan 1944

The Mentally Ill Offender In Federal Criminal Law And Administration, George H. Dession

Faculty Scholarship Series

THE care and custody of the mentally ill has customarily been considered
a state and local rather than a federal function. Certainly the major burden
of performing this task of public assistance and police protection is carried
by local government agencies, to the extent that it does not still rest
on the shoulders of families and relatives. It is also customarily believed
that the mentally ill or defective offender is infrequently encountered in
federal law enforcement. For there have been fewer homicide trials in
federal courts than in state courts, and it is in such cases that the defense
of ...


State Indemnity For Errors Of Criminal Justice, Edwin Borchard Jan 1941

State Indemnity For Errors Of Criminal Justice, Edwin Borchard

Faculty Scholarship Series

All too frequently the public is shocked by the news that Federal or State authorities have convicted and imprisoned a person subsequently proved to have been innocent of any crime. These accidents in the administration of the criminal law happen either through an unfortunate concurrence of circumstances or perjured testimony or are the result of mistaken identity, the conviction having been obtained by zealous prosecuting attorneys on circumstantial evidence. In an earnest effort to compensate in some measure the victims of these miscarriages of justice, Congress in May 1938 enacted a law "to grant relief to persons erroneously convicted in ...


Psychiatry And The Conditioning Of Criminal Justice, George H. Dession Jan 1938

Psychiatry And The Conditioning Of Criminal Justice, George H. Dession

Faculty Scholarship Series

"De plus, le roi et ses ministres jugeaient commode de proceder par
decisions individuelles, plus souples qu'une loi generate, plus faciles a
adapter aux circonstances de fait." Thus Boyer, in his La Liberte individuelle
sous L'Ancien Regime, rather delicately sums up the more
appealing motivations and the contemporary justification for that now
prominent exhibit in the criminological chamber of historic horrors
the king's lettres de cachet.' But if that particular variety of legal process
is now dead, the urgencies adduced to support it survive. Not only is
individualization of the disposition of offenders inscribed on the banner ...


Taney's Influence On Constitutional Law, Edwin Borchard Jan 1936

Taney's Influence On Constitutional Law, Edwin Borchard

Faculty Scholarship Series

The hundredth anniversary of the elevation of Roger Brooke Taney to the post of Chief Justice of the Supreme Court affords a fitting occasion to review the significance of his judicial services to the nation and to American constitutional law. A re-examination of his life work in the perspective of history indicates how unwise it often is to form rigid judgments on men and events in the excitement of contemporary emotion, for the harsh opinions which Taney evoked by his decisions on the slavery question have been tempered in the detached light reason. The historical cloud under which his name ...


The Problem Of Mental Disorder In Crime, Leon A. Tulin Jan 1932

The Problem Of Mental Disorder In Crime, Leon A. Tulin

Faculty Scholarship Series

One of the consequences of the law's acceptance of the lay notion
that most people are free rational agents is the tacit assumption that except
in clearly recognizable cases of marked dementia, all people are the
same and should be treated alike. No middle zone is recognized. This
approach to the problem of anti-social behavior is, of course, completely
opposed to the present trend of thought. To the criminologist mental
abnormality is an extremely broad concept; and is merely one of the
factors to be considered in determining in individual cases why an offender
offended and what method of ...


The Inquisitorial Functions Of Grand Juries, George H. Dession, Isadore H. Cohen Jan 1932

The Inquisitorial Functions Of Grand Juries, George H. Dession, Isadore H. Cohen

Faculty Scholarship Series

WHILE denying the traditional virtues of grand juries and discrediting them as wielders of the power of indictment, current criticism nevertheless remains non-committal as to their value for John Doe investigation into crime. As epitomized by the report of the National Commission for Law Observance and Enforcement, there seems to be some feeling that they are still of possible use in that quarter: "Today the grand jury is useful only as a general investigating body for inquiring into the conduct of public officers and in case of large conspiracies. It should be retained as an occasional instrument for such purposes ...


Notes On Judicial Organization And Procedure, Walter F. Dodd Jan 1929

Notes On Judicial Organization And Procedure, Walter F. Dodd

Faculty Scholarship Series

The Activities and Results of Crime Surveys. This article aims to
describe the activities and ascertain the legislative results of approximately
twenty crime surveys in American cities and states during
the last ten years. To a lesser extent, attention is devoted to concrete
changes in administrative practice accomplished for the most part
without legislative aid. Owing to the great diversity in the nature of
the activities of these various agencies, it may be desirable to classify
them in some manner, however arbitrary. From the standpoint of
research pursued by qualified experts, the Cleveland Crime Survey,
the Missouri Crime Survey, the ...


The Role Of Penalties In Criminal Law, Leon A. Tulin Jan 1928

The Role Of Penalties In Criminal Law, Leon A. Tulin

Faculty Scholarship Series

Around the concept "criminal intent," as used in the criminal
law, some of the most intensive battles of legalistic dialectics have
been waged.' Sometimes the term connotes "purposive" human
activity; at other times, it connotes the idea of "anticipation,"
not necessarily "desire." Again it is said that something other
than subjective anticipation comes within the ample bosom of
"intent." Even though it may be demonstrated beyond the
slightest possibility of doubt that the particular individual whose
"mind" is being probed by the mental fluoroscope of court and
jury did not anticipate the consequences for which society is
now seeking to ...