Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 14 of 14

Full-Text Articles in Law

Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook Dec 2006

Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook

Scholarly Works

This Article will commence with a review of the rather significant evolution of Rule 11, including a review of several pertinent Supreme Court decisions that have helped shape its current structure. Thereafter, the predominant judicial methodology for conducting Rule 11 hearings will be discussed. Specifically, this Article will take a brief but critical look at, inter alia, the examination techniques employed by the judiciary when conducting Rule 11 hearings, and conclude that the process typically employed inadequately assesses whether a defendant's guilty plea was entered into knowingly and voluntarily. Next, this Article will discuss two very recent Supreme Court ...


Remembering Welsh White, John Burkoff Nov 2006

Remembering Welsh White, John Burkoff

University of Pittsburgh School of Law Working Paper Series

This paper was an adaptation from a eulogy for Welsh White, an esteemed Criminal Procedure professor at the University of Pittsburgh School of Law.


The Real (Sentencing) World: State Sentencing In The Post-Blakely Era, Douglas A. Berman, Steven L. Chanenson Nov 2006

The Real (Sentencing) World: State Sentencing In The Post-Blakely Era, Douglas A. Berman, Steven L. Chanenson

Working Paper Series

Soon after the Supreme Court in Blakely v. Washington declared certain judicial fact-finding within a state sentencing guideline system unconstitutional, Justice O’Connor described the Court’s decision as a “Number 10 earthquake.” But two years after the Blakely ruling, the case’s broader impact and meaning for state criminal justice systems around the country has been largely overshadowed by developments in the federal sentencing system. Nevertheless, this is an exciting time for state sentencing. By granting review in yet another state sentencing case, California v. Cunningham, this past spring, the Supreme Court brings state issues to the national stage ...


The Brain-Disordered Defendant: Neuroscience And Legal Insanity In The Twenty-First Century, Richard E. Redding Oct 2006

The Brain-Disordered Defendant: Neuroscience And Legal Insanity In The Twenty-First Century, Richard E. Redding

Working Paper Series

Brain-damaged defendants are seen everyday in American courtrooms, and in many cases, their criminal behavior appears to be the product of extremely poor judgment and self-control. Some have a disorder in the frontal lobes, the area of the brain responsible for judgment and impulse control. Yet because defendants suffering from frontal lobe dysfunction usually understand the difference between right and wrong, they are unable to avail themselves of the only insanity defense available in many states, a defense based on the narrow McNaghten test. “Irresistible impulse” (or “control”) tests, on the other hand, provide an insanity defense to those who ...


Write On!, Steven L. Chanenson Aug 2006

Write On!, Steven L. Chanenson

Working Paper Series

Modern federal appellate review of sentences is a recent phenomenon introduced by the Sentencing Reform Act of 1984. Before United States v. Booker, courts of appeal focused on enforcing the technical rules of the federal sentencing guidelines and did so with (over)zealous enthusiasm. In the new post-Booker world, appellate judges are supposed to review sentences for "reasonableness." But how are they supposed to determine what is - or is not - a reasonable sentence? The answer to this puzzle rests in the mind of the District Judge. This short essay argues that the sentencing judge must explain his reasons, and meaningfully ...


The Right To Be Hurt. Testing The Boundaries Of Consent., Vera Bergelson May 2006

The Right To Be Hurt. Testing The Boundaries Of Consent., Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

People's right to consent to pain, injury or death has always been one of the most controversial issues in criminal law and moral philosophy. In recent years, that issue has moved to the forefront of public, legislative, and academic debates in the United States and abroad due to a series of high-profile criminal trials, which involved consenting victims in various contexts--from sadomasochism and cannibalism to experimental medical treatment and mercy killing.

Currently, American criminal law does not recognize consent of the victim as a defense to bodily harm, except in a few historically defined circumstances. That rule has been ...


Evolution And Denial: State Sentencing After Blakely And Booker, Steven L. Chanenson, Daniel F. Wilhelm Apr 2006

Evolution And Denial: State Sentencing After Blakely And Booker, Steven L. Chanenson, Daniel F. Wilhelm

Working Paper Series

Justice Louis Brandeis famously described the states as laboratories where individual jurisdictions can experiment with various legal strategies. In the wake of Blakley v. Washington, and United States v. Booker those laboratories have been working overtime. Since June 2004, both state legislatures and state courts have grappled with the significance of the United States Supreme Court's treatment of the Sixth Amendment in sentencing. It is unsurprising, given the extraordinary significance and potential reach of Blakely and Booker, that this Herculean task has produced divergent results.

Although there are many potential ways to sort those results, for the purposes of ...


Adult Punishment For Juvenile Offenders: Does It Reduce Crime?, Richard E. Redding Apr 2006

Adult Punishment For Juvenile Offenders: Does It Reduce Crime?, Richard E. Redding

Working Paper Series

This chapter discusses the research on the general and specific deterrent effects of transferring juveniles for trial in adult criminal court, identifies gaps in our knowledge base that require further research, discusses the circumstances under which effective deterrence may be achieved, and examines whether there are effective alternatives for achieving deterrence other than adult sanctions for serious juvenile offenders. As a backdrop to this analysis, the chapter first examines the role of public opinion in shaping the get tough policies, and how policy makers have misunderstood and perceived support for these policies.


Standing Room Only: Why Fourth Amendment Exclusion And Standing No Longer Logically Coexist, Sherry F. Colb Mar 2006

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

Rutgers Law School (Newark) Faculty Papers

The Fourth Amendment exclusionary rule provides that a criminal defendant may suppress the fruits of unreasonable searches and seizures at his prosecution. The Fourth Amendment standing requirement limits the class of criminal defendants who may invoke the exclusionary rule to those who have personally suffered a violation of their rights. This Article argues that the two doctrines are logically inconsistent with each other. The exclusionary rule rests on a foundation of deterrence that takes as its point of departure the police officer's subjective perspective of events and asks: did the information known to him justify his conduct? The standing ...


Emotional Competence, "Rational Understanding," And The Criminal Defendant, Terry A. Maroney Mar 2006

Emotional Competence, "Rational Understanding," And The Criminal Defendant, Terry A. Maroney

University of Southern California Legal Studies Working Paper Series

Adjudicative competence, more commonly referred to as competence to stand trial, is a highly undertheorized area of law. Though it is well established that, to be competent, a criminal defendant must have a “rational” as well as “factual” understanding of her situation, the meaning of such “rational understanding” has gone largely undefined. Given the large number of criminal prosecutions in which competence is at issue, the doctrine’s instability stands in stark contrast to its importance.

This Article argues that adjudicative competence, properly understood, asks whether a criminal defendant has capacity to participate meaningfully in the host of decisions potentially ...


Multicultural Perspectives On Delinquency Etiology And Intervention, Richard E. Redding, Bruce Arrigo Mar 2006

Multicultural Perspectives On Delinquency Etiology And Intervention, Richard E. Redding, Bruce Arrigo

Working Paper Series

In this chapter, we consider the possible reasons for the overrepresentation of African-American youth in the juvenile and criminal justice systems. We review research on discrimination in the justice system and possible differences between African American and White youth in the key risk factors for delinquency that exist at the individual, family, and peer-group and neighborhood levels. Based on these findings, we provide recommendations for treatments and interventions aimed at preventing and reducing offending and justice system involvement among African-American youth.


Habeas Corpus And Baseball, Donald E. Wilkes Jr. Mar 2006

Habeas Corpus And Baseball, Donald E. Wilkes Jr.

Scholarly Works

In the late 19th and early 20th centuries playing baseball on Sundays was a criminal offense in many states, where police often aggressively intervened to prevent or stop baseball games from being played on the Sabbath. In 1894, “the police of the city of Brooklyn took it upon themselves to chase, club and lock up all boys and men found playing ball on Sunday,” People ex rel. Poole v. Hesterberg, 43 Misc. 510, 89 N.Y.S. 498, 499 (N.Y. Sup. Ct. Kings County 1904); on two consecutive Sundays in July 1910, two professional baseball teams attempting to play ...


Justice Story Cuts The Gordian Knot Of Hung Jury Instructions, George C. Thomas Iii, Mark Greenbaum Jan 2006

Justice Story Cuts The Gordian Knot Of Hung Jury Instructions, George C. Thomas Iii, Mark Greenbaum

Rutgers Law School (Newark) Faculty Papers

Constitutional law grows more complex over time. The complexity is due, in large part, to the rule of stare decisis. When faced with precedents that it does not wish to follow, the Court usually distinguishes the case before it. Thus, the constitutional landscape is littered with cases that do not fit well together. Navigating past these shoals is often difficult for courts following the Supreme Court’s lead. One example is the law governing instructions that a trial judge can give a deadlocked jury in a criminal case. The right to a jury trial entails the right to have the ...


Reflections On Brady V. Maryland, Bennett L. Gershman Jan 2006

Reflections On Brady V. Maryland, Bennett L. Gershman

Pace Law Faculty Publications

Part I of this Article describes the evolution of the Brady rule over the past forty-three years. Part I sketches the origins of the rule and its doctrinal developments. Part II closely examines Brady's impact on constitutional criminal procedure. Part II suggests that Brady's essential goal has been eroded by the courts, subverted by prosecutors, and ignored by disciplinary bodies. Part III proposes that only through expanding a defendant's right to discovery can the goal of Brady be realized. The Article concludes that Brady, more than any other rule of constitutional criminal procedure, has been the most ...