Law Commons^™

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 …

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 …

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

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.

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 …

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, …

"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 …

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.

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 …

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 …

Probabilities In Probable Cause And Beyond: Statistical Versus Concrete Harms, Sherry F. Colb

Cornell Law Faculty Publications

No abstract provided.

Gideon'S Ghost: Providing The Sixth Amendment Right To Counsel In Times Of Budgetary Crisis, Heather P. Baxter

Faculty Scholarship

This Article discusses how the budget crisis, caused by the recent economic downturn, has created a constitutional crisis with regard to the Sixth Amendment Right to Counsel. The landmark case of Gideon v. Wainwright required states, under the Sixth Amendment, to provide free counsel to indigent criminal defendants. However, as a result of the current financial crisis, many of those who represent the indigent have found their funding cut dramatically. Consequently, Gideon survives, if at all, only as a ghostly shadow prowling the halls of criminal justice throughout the country.

This Article analyzes specific budget cuts from various states and …

Forward: Symposium On Broke And Broken: Can We Fix Our State Indigent Defense System?, Rodney J. Uphoff

Faculty Publications

The Symposium presenters and commentators, most of whom had worked at some point in their career as a public defender, brought a wealth of experience to the discussion. While the presentations and comments made that day, together with the articles that follow in this Symposium issue, do not provide any quick fix or easy solution, they do offer some important lessons for lawmakers to consider as states struggle to improve the plight of indigent defenders and their clients.

Summary Of Bahena V. Goodyear Tire & Rubber Co., 126 Nev. Adv. Op. No. 57, Michael Gianelloni

Nevada Supreme Court Summaries

No abstract provided.

Summary Of Ramirez V. State, 126 Nev. Adv. Op. No. 22, Anthony R. Sassi

Nevada Supreme Court Summaries

This is an appeal from a judgment of conviction in the Second Judicial District Court, pursuant to a jury verdict of second-degree felony murder by means of child abuse, neglect, or endangerment.

Resurrecting Autonomy: The Criminal Defendant's Right To Control The Case, Erica J. Hashimoto

Scholarly Works

In Faretta v. California, the Supreme Court exalted the value of autonomy – the criminal defendant’s interest in presenting and controlling the defense. Over the course of the past thirty-five years, however, the Court’s enthusiasm has dissipated, and commentators have criticized courts that have given defendants any measure of control over their cases. As a result, lower courts increasingly have shifted control from defendants to their lawyers. In light of that retrenchment, this Article reevaluates the autonomy interest on its merits. This reexamination confirms that Faretta got it right, and the Supreme Court should revitalize the constitutional interest of criminal …

Summary Of State Of Nevada, Dmv V. Taylor-Caldwell, 125 Nev. Adv. Op. No. 14 , David Krawczyk

Nevada Supreme Court Summaries

Consideration of whether Nev. Rev. Stat. §484.384 mandates driver’s license revocation when two consecutive breath samples are obtained from a DUI suspect and only one breath sample tests over the legal limit for alcohol.

Relationship And Injury Trends In The Homicide Of Women Across The Lifespan: A Research Note, Carol E. Jordan, Adam J. Pritchard, Danielle Duckett, Pamela Wilcox, Tracey Corey, Mandy Combest

Office for Policy Studies on Violence Against Women Publications

In 2006, more than 3,600 women in the United States lost their lives to homicide. Descriptive data regarding homicides of women are beginning to reveal important complexities regarding victim–offender relationships, severity of injury, and age of female homicide victim. More specifically, there is some indication that the correlation between victim–offender relationship and injury severity may be conditional, depending on victim age. This retrospective review accessed medical examiner records of female homicide victims from 2002 through 2004, and its findings offer additional illumination on the trends in associations of injury and relationship variables in the homicide of women over their life …

What Is Due To Others: Speaking And Signifying Subject(S) Of Rape Law, Penelope J. Pether

Working Paper Series

Australian journalist Paul Sheehan's representation of the alleged and convicted immigrant Muslim/Arab rapists he demonises in 'Girls Like You', like his representation of the rape survivors in that text, has much to tell us about the law's production of rape law's speaking and signifying subjects, “real rape” victims and survivors, false accusers and perpetrators. This article uses a variety of texts, including 'Girls Like You', recent Australian rape law jurisprudence and legislative reform, texts involving two controversial recent US rape cases — one from Maryland and one from Nebraska — and a recent UK study on attrition in rape prosecutions, …

The Costs Of Abusing Probationary Sentences: Overincarceration And The Erosion Of Due Process, Andrew Horwitz

Law Faculty Scholarship

No abstract provided.

Lethal Discrimination, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

Judge's Ill-Timed Ruling Invites Irrationality In Public's Views About Capital Punishment, Adam M. Gershowitz

Popular Media

No abstract provided.

Curriculum: Investigating Allegations Of Staff Sexual Misconduct With Offenders (Facilitator's Guide), Brenda V. Smith, Morris L. Thigpen, Thomas Beauclair, Dee Halley, Jaime M. Yarussi, Marcia Morgan, Aaron Aldrich, Darrell Alley, Roy Austin, Diane Berman, Susan Carle, Wally Carmichael, Deborah Connor, Dan Dunne, Karen Giannakoulias, Katherine Huffman, Madeleine Lamarre, Susan Mccampbell, Andie Moss, Mary Pinn, Susan Poole, Keith Reid, Jo Sterns, Melissa Turner, A.T. Wall

Reports

Investigating Allegations of Staff Sexual Misconduct with Offenders is a 36-hour educational program that addresses the complex issues in investigations of staff on offender sexual abuse in correctional settings. It is primarily designed for investigators, prosecutors, human resource administrators, and high-level correctional administrators, but can be adapted for other audiences.

Before the lesson plans begin on page 31, you will find background information for the instructor. First you will find the proposed program agenda for the training, a list of topics and break times. This provides the instructor with a snapshot of the entire training; each module, topic and time …

Statewide Capital Punishment: The Case For Eliminating Counties’ Role In The Death Penalty, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Vol. Ix, Tab 41 - Ex. G - Dulitz Deposition (Google Adwords Project Manager), Daniel Dulitz

Rosetta Stone v. Google (Joint Appendix)

Exhibits from the un-sealed joint appendix for Rosetta Stone Ltd., v. Google Inc., No. 10-2007, on appeal to the 4th Circuit. Issue presented: Under the Lanham Act, does the use of trademarked terms in keyword advertising result in infringement when there is evidence of actual confusion?

Conflicts Of Interest In Criminal Cases: Should The Prosecution Have A Duty To Disclose?, Anne Poulin

Working Paper Series

This article addresses two types of conflicts of interests that arise in criminal cases: 1) when defense counsel has an employment relation to the prosecutor’s office, and 2) when defense counsel faces criminal investigation or charges. Both these situations threaten both the defendant’s representation and the actual as well as apparent fairness of the proceeding. Yet, only in extreme cases are these conflicts likely to result in a reversal of the defendant’s conviction. As a result, protection of the defendant and the fairness of the process often depends on early intervention, which allows the court to advise the defendant of …

Deciding When To Decide - Appellate Procedure And Legal Change, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

Summary Of Higgs V. State, 126 Nev. Adv. Op. No. 1, Kathleen Wilde

Nevada Supreme Court Summaries

A multi-faceted appeal from a Second Judicial District Court conviction of first-degree murder.

Thinking Like A Public Interest Lawyer: Theory, Practice, And Pedagogy, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

Defining The Problem, Hadar Aviram

Faculty Scholarship

No abstract provided.