Law Commons^™

Summary Of Hidalgo V. District Court, 123 Nev. Adv. Op. 59, Barbra E. Zess

Nevada Supreme Court Summaries

Luis Hidalgo III and Anabel Espindola, awaiting a capital murder trial, made a petition for a writ of mandamus or prohibition challenging the alleged aggravating circumstances (solicitation to commit murder) as not being “a felony involving the use or threat of violence to the person of another,” as required by NRS 200.033(2)(b). The other aggravator, murder to receive money, was successfully challenged as violating SCR 250(4)(c) requirements.

Statistics In The Jury Box: How Jurors Respond To Mitochondrial Dna Match Probabilities, David H. Kaye, Valerie P. Hans, B. Michael Dann, Erin J. Farley, Stephanie Albertson

Cornell Law Faculty Publications

This article describes parts of an unusually realistic experiment on the comprehension of expert testimony on mitochondrial DNA (mtDNA) sequencing in a criminal trial for robbery. Specifically, we examine how jurors who responded to summonses for jury duty evaluated portions of videotaped testimony involving probabilities and statistics. Although some jurors showed susceptibility to classic fallacies in interpreting conditional probabilities, the jurors as a whole were not overwhelmed by a 99.98% exclusion probability that the prosecution presented. Cognitive errors favoring the defense were more prevalent than ones favoring the prosecution. These findings lend scant support to the legal argument that mtDNA …

Summary Of Wilson V. State Of Nevada, 123 Nev. Adv. Op. No. 54, Tanya Gaylord

Nevada Supreme Court Summaries

No abstract provided.

What Is A Business Crime?, Richard A. Booth

Working Paper Series

Criminal prosecution has been used with increasing frequency recently in connection with a variety of business failures and other financial offenses. Indeed, it appears that there are few such offenses that cannot be prosecuted criminally even though they also give rise to civil remedies. While some such offenses seem to be quite serious frauds, others seem to be as minor as getting the accounting rules wrong. Thus, the question addressed in this essay is how to define a business crime and what should be the proper role of criminal prosecution in connection with business offenses. I start with the proposition …

Raise The Proof: A Default Rule For Indigent Defense, Adam M. Gershowitz

Faculty Publications

Almost everyone agrees that indigent defense in America is underfunded, but workable solutions have been hard to come by. For the most part, courts have been unwilling to inject themselves into legislative budget decisions. And, when courts have become involved and issued favorable decisions, the benefits have been only temporary because once the pressure of litigation disappears so does a legislature's desire to appropriate more funding. This Article proposes that if an indigent defense system is under-funded, the state supreme court should impose a default rule raising the standard of proof to "beyond all doubt" to convict indigent defendants. The …

Summary Of Dewey V. State, 123 Nev. Adv. Op. No. 47, Nevada Law Journal

Nevada Supreme Court Summaries

No abstract provided.

Summary Of Ryan V. Dist. Ct., 123 Nev. Adv. Op. No. 42, Katie Maw

Nevada Supreme Court Summaries

Petition for a writ of mandamus challenging a district court’s order denying petitioner’s motion to substitute counsel.

Race And Recalcitrance: The Miller-El Remands, Sheri Johnson

Cornell Law Faculty Publications

In Batson v. Kentucky, the Supreme Court held that a prosecutor may not peremptorily challenge a juror based upon his or her race. Although Baston was decided more than twenty years ago, some lower courts still resist its command. Three recent cases provide particularly egregious examples of that resistance. The Fifth Circuit refused the Supreme Court's instruction in Miller-El v. Cockrell, necessitating a second grant of certiorari in Miller-El v. Dretke. The court then reversed and remanded four lower court cases for reconsideration in light of Miller-El, but in two cases the lower courts have thus …

Summary Of Witherow V. State, Bd. Of Parole Comm’Rs, 123 Nev. Adv. Op. No. 33, Tyler Ure

Nevada Supreme Court Summaries

This case is an appeal from a district court order dismissing a complaint that challenged a parole board proceeding under Nevada’s Open Meeting Law.‡Ìq

Summary Of Nay V. State, 123 Nev. Adv. Op. No. 35, Tyler James Watson

Nevada Supreme Court Summaries

Appeal from a judgment of conviction, upon a jury verdict, of first-degree murder with the use of a deadly weapon and robbery with the use of a deadly weapon.

Criminal Law's "Mediating Rules": Balancing, Harmonization, Or Accident?, Michael T. Cahill

Faculty Scholarship

No abstract provided.

Summary Of Gallegos V. State, 123 Nev. Advanced Opinion 31, Matthew Engle

Nevada Supreme Court Summaries

Appellant Albert Gallegos was charged under NRS 202.360(1)(b),2 in 2004, with one count of unlawful possession of a firearm after police arrested him at his home in Clark County and found a firearm inside that home. That charge was based on a 1998 felony warrant issued by a California superior court. The California court issued the warrant when Gallegos failed to appear for sentencing after pleading nolo contendere to seven felony charges. At his Nevada trial, Gallegos testified that he did not appear for his sentencing hearing because the California superior court told him when he entered his plea that …

Summary Of State V. Ruscetta, Nev. Adv. Op. No. 32, Krystallin Hernandez

Nevada Supreme Court Summaries

Appeal from a district court’s order granting a defendant’s motion to suppress evidence found by a Las Vegas Metropolitan Police Officer during a consensual vehicle search.

The Prisoners’ (Plea Bargain) Dilemma, Oren Bar-Gill, Omri Ben-Shahar

Law & Economics Working Papers Archive: 2003-2009

How can a prosecutor, who has only limited resources, credibly threaten so many defendants with costly and risky trials and extract plea bargains involving harsh sentences? Had defendants refused to settle, many of them would not have been charged or would have escaped with lenient sanctions. But such collective stonewalling requires coordination among defendants, which is difficult if not impossible to attain. Moreover, the prosecutor, by strategically timing and targeting her plea offers, can create conflicts of interest among defendants, frustrating any attempt at coordination. The substantial bargaining power of the resource-constrained prosecutor is therefore the product of the collective …

Addressing Sexual Violence Against Youth In Custody, Brenda V. Smith

Presentations

No abstract provided.

Credibility: A Fair Subject For Expert Testimony?, Anne Poulin

Working Paper Series

This article explores the ways in which experts can assist the jury to assess the credibility of other witnesses and suggests analytical approaches to such expert testimony. The article argues that the courts should be more receptive to expert testimony bearing on witness credibility and engage in a more nuanced consideration of the role played by proffered expert testimony and how the role of the evidence affects its admissibility. Doing so should lead the courts to embrace the promise of the modern rules of evidence and permit experts to assist juries as they assess credibility.

Every Juror Wants A Story: Narrative Relevance, Third Party Guilt And The Right To Present A Defense, John H. Blume, Sheri L. Johnson, Emily C. Paavola

Cornell Law Faculty Publications

On occasion, criminal defendants hope to convince a jury that the state has not met its burden of proving them guilty beyond a reasonable doubt by offering evidence that someone else (a third party) committed the crime. Currently, state and federal courts assess the admissibility of evidence of third-party guilt using a variety of standards. In general, however, there are two basic approaches. Many state courts require a defendant to proffer evidence of some sort of direct link or connection between a specific third-party and the crime. A second group of state courts, as well as federal courts, admit evidence …

Summary Of Schuster V. Eighth Jud. Dist. Ct., Nev. Adv. Op. No. 23, Sherry Moore

Nevada Supreme Court Summaries

Petitioner filed a writ of mandamus or prohibition on the ground that the District Court improperly denied petitioner’s writ of habeas corpus and/or motion to dismiss the indictment based on the State’s improper refusal to instruct the grand jury on the law of self-defense.

Summary Of Johnson V. State, 123 Nev. Adv. Op. No. 17, Michael J. Gayan

Nevada Supreme Court Summaries

Appellant Jeffrey Lee Johnson communicated via the Internet with several undercover law enforcement officers who he thought were 14-year-old girls. Based on the nature of the conversations, Johnson was charged under the attempt provision of NRS 201.560.2 Johnson pleaded guilty to one count of violating NRS 201.560 and failed to file a direct appeal. Johnson filed a post-conviction petition for a writ of habeas corpus in the district court, claiming ineffective assistance of counsel. Johnson argued that his counsel was ineffective for not arguing that it was impossible for Johnson to violate the attempt provision of NRS 201.560 because no …

Pay Now, Execute Later: Why Counties Should Be Required To Post A Bond To Seek The Death Penalty, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Rights, Wrongs, And Comparative Justifications, Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

The goal of this article is to rethink the relationship between the concepts of justification and wrongdoing, which play vital roles in the theory of criminal law. Reading George P. Fletcher’s new book, The Grammar of Criminal Law, in the context of his earlier scholarship has led me to one major disagreement with Fletcher as well as with the traditional criminal law doctrine: for Fletcher and many others, wrongdoing and justification mutually exclude each other; for me, they do not.

Consider a hypothetical: a group of people are captured by criminals. The criminals are about to kill everyone but then …

Questions Of Mercy, Stephen P. Garvey

Cornell Law Faculty Publications

My aim in this brief introduction is to organize the Symposium articles around two questions, recognizing that doing so means ignoring other important questions to which the articles attend. I also aim to paint in broad strokes, thus also ignoring much of the argumentative subtlety and nuance contained in the articles. With those caveats on the table, the questions are these: First, does mercy have any legitimate role to play in the administration of the criminal law of a liberal state? Second, if mercy does have some such role to play, for what reasons, or upon what grounds, can mercy …

Can Prosecutors Bluff? Brady V. Maryland And Plea Bargaining, John G. Douglass

Law Faculty Publications

The author discusses the symbolic value of the Brady rule in the pretrial context in the U.S. criminal justice system. Brady's symbolic power remains stronger than its corrective power in post-trial motions. It serves as a constitutional reminder to prosecutors because they cannot serve as architects of unfairness. Most prosecutors disclose more Brady material in pretrial discovery than the constitutional rule actually demands. This indicates that prosecutors can bluff.

The Internationalization Of Lay Legal Decision-Making: Jury Resurgence And Jury Research, Richard O. Lempert

Articles

When I first began to study the jury more than thirty years ago, the topic of this Journal issue, jury systems around the world, was unthinkable. The use of juries, especially in civil litigation, had long been in decline, to the point of near extinction in England, the land of their birth, and the live question was whether the jury system would endure in the United States. It seemed clear that juries would not continue in their classic form, as many U.S. states, with the Supreme Court's eventual approval, mandated juries of less than twelve people and allowed verdicts to …

Solving The Lawyer Problem In Criminal Cases, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

We are learning that the vaunted American adversarial system too often fails to protect innocent defendants. Part of the problem is that indigent criminal defenders, in many parts of the country, are overburdened to the point that they cannot always provide an adequate adversarial testing of the State’s case. Part of the problem is the emotional burn out that many defenders experience. A less well known part of the problem is that the very nature of the adversarial mentality too often causes prosecutors to cut corners and thus threaten innocent defendants. “Solving the Lawyer Problem in Criminal Cases,” a 9,000 …

Making Crime (Almost) Disappear, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

This essay sketches the outlines of a future world in which crime has been drastically reduced. The author proposes two radical approaches to achieve this crime reduction. Some crimes, like drunk driving, can be almost completely eliminated by using technology to prevent the operation of a vehicle by a driver with a blood alcohol greater than the permissible level. Other crimes, like larceny or burglary of expensive items, can be made extremely easy to solve by requiring the installation of micro chips that will, when activated, broadcast their location to police.

To the objection that it will be expensive to …

Standing Room Only: Why Fourth Amendment Exclusion And Standing Can No Longer Logically Coexist, Sherry F. Colb

Cornell Law Faculty Publications

No abstract provided.

The (Futile) Search For A Common Law Right Of Confrontation: Beyond Brasier's Irrelevance To (Perhaps) Relevant American Cases, Randolph N. Jonakait

Articles & Chapters

After Crawford v. Washington asserted that the Confrontation Clause constitutionalized the common law right of confrontation, cases have been suggested that illustrate that right. This short essay considers whether the 1779 English case Rex v. Brasier is such a decision, as some contend. The essay concludes that Brasier says nothing about the right of confrontation and points to a comparable framing-era, American case that indicates that general rules about hearsay and confrontation were not at issue. The essay maintains that if the historical understandings of the right of confrontation and hearsay are to control the Confrontation Clause, then framing-era, American …

Forgiveness In Criminal Procedure, Stephanos Bibas

All Faculty Scholarship

Though forgiveness and mercy matter greatly in social life, they play fairly small roles in criminal procedure. Criminal procedure is dominated by the state, whose interests in deterring, incapacitating, and inflicting retribution leave little room for mercy. An alternative system, however, would focus more on the needs of human participants. Victim-offender mediation, sentencing discounts, and other mechanisms could encourage offenders to express remorse, victims to forgive, and communities to reintegrate and employ offenders. All of these actors could then better heal, reconcile, and get on with their lives. Forgiveness and mercy are not panaceas: not all offenders and victims would …

At The Intersection Of Race And History: The Unique Relationship Between The Davis Intent Requirement And The Crack Laws, Christopher J. Tyson

Journal Articles

No abstract provided.