Law Commons^™

To Catch A Killer: Roadblocks And The Fourth Amendment, Michael T. Morley

Scholarly Publications

No abstract provided.

A Miscarriage Of Justice In Massachusetts: Eyewitness Identification Procedures, Unrecorded Admissions, And A Comparison With English Law, Stanley Z. Fisher, Ian K. Mckenzie

Faculty Scholarship

Like many other states, Massachusetts has recently known a number of acknowledged miscarriages of justice. This article examines one of them, the Marvin Mitchell case, in order to ask two questions: "What went wrong?" and "What systemic reforms might have prevented this injustice?" In seeking ideas for reform, we look to English law.

In 1990 Marvin Mitchell was convicted of rape in Massachusetts. Seven years later he became the first Massachusetts prisoner to be exonerated by DNA testing. In this article we describe the two key factors leading to Mitchell's wrongful conviction: faulty eyewitness identification procedures, and inadequate safeguards surrounding …

Nullificatory Juries, Kaimipono David Wenger, David A. Hoffman

All Faculty Scholarship

In this Article, we argue that current debates on the legitimacy of punitive damages would benefit from a comparison with jury nullification in criminal trials. We discuss critiques of punitive damages and of jury nullification, noting the surprising similarities in the arguments scholars use to attack these (superficially) distinct outcomes of the jury guarantee. Not only are the criticisms alike, the institutions of punitive damages and jury nullification also turn out to have many similarities: both are, we suggest, examples of what we call "nullificatory juries." We discuss the features of such juries, and consider recent behavioral data relating to …

Mental Health And Incarceration: What A Bad Combination, Olinda Moyd

Articles in Law Reviews & Other Academic Journals

The District of Columbia has one of the highest per capita incarceration and criminal justice supervision rates in the United States1 and among the highest in the world. The local prison population has risen dramatically over the past decade for a variety of reasons including increased rates of re-incarceration for parole violations and the imposition of longer sentences for drug offenses. Recent acts of Congress have seriously impacted the sentencing laws in the District including determination of where persons sentenced for violating local D.C. laws will serve such sentences. On August 5, 1997, President Clinton signed into law The National …

Victim Wrongs: The Case For A General Criminal Defense Based On Wrongful Victim Behavior In An Era Of Victims' Rights, Aya Gruber

Publications

Criminal law scholarship is rife with analysis of the victims' rights movement. Many articles identify with the outrage of victims harmed by deviant criminal elements. Other scholarly pieces criticize the movement's denuding of defendants' constitutional trial rights. The point upon which proponents and opponents of the movement tend to agree, however, is that the victim should never be blamed for the crime. The helpless, harmed, innocent victim is someone with whom we can all identify and someone to whom we can all express sympathy. Victim blaming, by all accounts, is an act of legal heresy to feminists, victim advocates, and …

The Structure Of Expertise In Criminal Cases, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This essay, part of a two-issue symposium on the implications of Daubert v. Merrell Dow Pharmaceuticals and its progeny, is built around three propositions about expert testimony and criminal cases. First, the "Daubert trilogy's" focus on verifiability as the threshold for expert testimony pushes the criminal justice system away from the notion that knowledge is socially constructed and toward a positivist epistemology that assumes we can know things objectively. Second, in the long run, that development will be good for prosecutors and bad for criminal defendants, given the different types of expertise on which they rely. Third, the consequence of …

The Integrationist Alternative To The Insanity Defense: Reflections On The Exculpatory Scope Of Mental Illness In The Wake Of The Andrea Yates Trial, Christopher Slobogin

Vanderbilt Law School Faculty Publications

On June 20, 2001, Andrea Yates took the lives of her five children by drowning them, one by one, in a bathtub. At her trial on capital murder charges nine months later, she pleaded insanity. Despite very credible evidence that she had long suffered from serious mental disorder, a Texas jury convicted Yates of murder and sentenced her to life in prison. Her tragic and controversial case led many to question whether the so-called "M'Naghten" test for insanity, which forms the basis for the insanity defense in Texas, adequately defines the exculpatory effect of mental disorder. This article is based …

The Origins Of Felony Jury Sentencing In The United States, Nancy J. King

Vanderbilt Law School Faculty Publications

All of the states admitted to the Union by 1800 eventually abandoned capital punishment for most felonies in favor of discretionary terms of imprisonment. But of these states, only Virginia, Kentucky, and Georgia adopted jury sentencing. In 1786, Pennsylvania became the first state to adopt discretionary terms of hard labor and imprisonment as the primary punishment for felony offenses-delegating to judges the authority to select those terms. In 1796, Virginia opted for jury sentencing, while New York followed Pennsylvania's lead. After 1796, with both Pennsylvania's judge sentencing and Virginia's jury sentencing models to choose from, New Jersey and all of …

The Admissibility Of Expert Testimony About Cognitive Science Research On Eyewitness Identification, Edward Stein

Articles

Eyewitness identifications are important to jurors, especially in criminal trials. Psychological research has shown, however, that eyewitness testimony is systematically fallible in ways that undermine the goals of the rules of evidence. This article assesses the arguments for and against admitting expert testimony concerning cognitive science research about eyewitness identification. The article concludes that experts should in many instances be allowed to testify about the problems with eyewitness identification testimony.

The New Federalism, The Spending Power, And Federal Criminal Law, Richard W. Garnett

Journal Articles

It is difficult in constitutional-law circles to avoid the observation that we are living through a revival of federalism. Certainly, the Rehnquist Court has brought back to the public-law table the notion that the Constitution is a charter for a government of limited and enumerated powers, one that is constrained both by that charter's text and by the structure of the government it creates. This allegedly revolutionary Court seems little inclined, however, to revise or revisit its Spending Power doctrine, and it remains settled law that Congress may disburse funds in pursuit of ends not authorized explicitly in Article I …

Jurisdiction To Adjudicate And Jurisdiction To Prescribe In International Criminal Courts, Kenneth S. Gallant

Faculty Scholarship

Direct jurisdiction over individuals, along with responsibilities to them, are outstanding characteristics of the new International Criminal Court (ICC or Court), as they already are of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR). This Article raises issues of legitimate power to prosecute and to define criminal law and issues of individual human rights which necessarily arise in any criminal system.

This Article is predominantly an analysis of issues of criminal jurisdiction over persons as they are treated in the ICC Statute, as well as in the current ad hoc international criminal tribunals. Part II …

Homicide On Holiday: Prosecutorial Discretion, Popular Culture, And The Boundaries Of The Criminal Law, Carolyn B. Ramsey

Publications

This article discusses prosecutors' discretion to press criminal charges against individuals who cause death during recreational activities. Based on newspaper sources, published opinions, and unpublished materials from cases that resulted in plea bargains, Homicide on Holiday continues the author's exploration of the relationship between the American public, criminal prosecutors, and the nature of the prosecutors' public role. It shows that, despite popular culture's glorification of risk and a nationwide trend in tort law toward sheltering sports co-participants from civil negligence liability, an exhilarating trip down a ski slope is increasingly likely to land a skier in jail if he collides …

Independent Review Of The Crimes (Forensic Procedures) Act 2000, Mark Findlay

Research Collection Yong Pung How School Of Law

This Report focuses on the use of forensic procedures in the criminal justice system. It arises out of the requirement under section 122 of the Crimes (Forensic Procedures) Act 2000 (the Act) that the Minister (the Attorney General) review the Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.

Before And After: Temporal Anomalies In Legal Doctrine, Leo Katz

All Faculty Scholarship

Legal doctrine exhibits some striking temporal anomalies, previously not much adverted to. Wrongdoing looked at before it has occurred, and after is has occurred, is apt to look very different. I take up the two key components of wrongdoing seriatim, the harm-portion and the misconduct-portion: the "damage" part and the "liability" part. We tend to look at harm in a harm-agnifying way before it has occurred, and in a harm-inimizing way afterwards. We thus tend to think about negligence and the harm it wreaks in seemingly inconsistent ways. I examine and reject some possible explanations of this. Misconduct too looks …

Jury Sentencing As Democratic Practice, Jenia I. Turner

Faculty Journal Articles and Book Chapters

After a century of reform and experimentation, sentencing remains a highly contested area of the criminal justice system. Scholars as well as the public at large disagree about the proper purposes and functions of punishment, and dissatisfaction with the sentencing status quo is high. Most recent critiques of the sentencing process have focused on the amount of discretion tolerated by the system. This Article goes further in arguing that the source of sentencing discretion is also very important to the legitimacy and integrity of the sentencing process. In the absence of wide consensus on sentencing goals, it is best to …

The A.L.I.'S Proposed Distributive Principle Of 'Limiting Retributivism': Does It Mean In Practice Anything Other Than Pure Desert?, Paul H. Robinson

All Faculty Scholarship

Robinson supports the proposed "purposes" text of the New American Law Institute Report on Sentencing Reform but argues that in practice it will not mean what traditional utilitarians, like those supporting "limiting retributivism," are expecting. First, the proposed text allows reliance upon non-desert distributive principles only to the extent that they serve their stated goals. As the ALI Report concedes, there are limits to the effectiveness one can expect from rehabilitation and, as is now becoming apparent from social science research, our realistic expectations for the effectiveness of deterrence are similarly fading. It is true that incapacitation undoubtedly works to …

Final Report Of The Illinois Criminal Code Rewrite And Reform Commission, Paul H. Robinson, Michael T. Cahill

All Faculty Scholarship

The Governor of Illinois created a commission to examine the problems with Illinois criminal law and to rewrite the Illinois criminal code. This two-volume Final Report of the Illinois Criminal Code Rewrite and Reform Commission proposes a new criminal code, in volume 1, together with an official commentary, in volume 2, that explains each provision and how and why it differs from existing law. The introduction to the Report summarizes the reasons for and the importance of criminal code reform, and describes the techniques used in this rewrite project, including both the project’s drafting principles and the methods by which …

Final Report Of The Kentucky Penal Code Revision Project, Paul H. Robinson, Kentucky Criminal Justice Council Staff

All Faculty Scholarship

The Kentucky Criminal Justice Council, a constitutional body in Kentucky, undertook this project to examine the problems with Kentucky criminal law and to rewrite the Kentucky criminal code. This two-volume Final Report of the Kentucky Penal Code Revision Project proposes a new criminal code, in volume 1, together with an official commentary, in volume 2, that explains each provision and how and why it differs from existing law. The introduction to the Report summarizes the reasons for and the importance of criminal code reform, and describes the techniques used in this rewrite project, including both the project’s drafting principles and …

The Difference In Criminal Defense And The Difference It Makes, Abbe Smith

Georgetown Law Faculty Publications and Other Works

My own view of criminal defense lawyering owes much to Monroe Freedman. I agree with his "traditionalist view”, of criminal defense ethics as a lawyering paradigm in which zealous advocacy and the maintenance of client confidence and trust are paramount. Simply put, zeal and confidentiality trump most other rules, principles, or values. When there is tension between these "fundamental principles” and other ethical rules, criminal defense lawyers must uphold the principles, even in the face of public or professional outcry. Although a defender must act within the bounds of the law, he or she should engage in advocacy that is …

Towards A Legal History Of American Criminal Theory: Culture And Doctrine From Blackstone To The Model Penal Code, Gerald F. Leonard

Faculty Scholarship

Many writers in recent decades have objected to the utilitarian aspects of substantive criminal law that cannot be squared with modern, retributivist versions of criminal justice. One particular target of the retributivists has been the use of strict liability, especially as it is applied in statutory rape cases. This article is an effort, not to take sides between utilitarians and retributivists, but to historicize the ideas and assumptions on all sides of the debates in criminal law, including the debate about strict liability in statutory rape.

Discovering very little historical work on the subject, I offer the first general intellectual …

Still Tough On Crime? Prospects For Restorative Justice In The United States, Sara Sun Beale

Faculty Scholarship

No abstract provided.

The Shaping Of Chance: Actuarial Models And Criminal Profiling At The Turn Of The Twenty-First Century, Bernard Harcourt

Faculty Scholarship

The turn of the twentieth century marked a new era of individualization in the field of criminal law. Drawing on the new science of positivist criminology, legal scholars called for diagnosis of the causes of delinquence and for imposition of individualized courses of remedial treatment specifically adapted to these individual diagnoses. "[M]odern science recognizes that penal or remedial treatment cannot possibly be indiscriminate and machine-like, but must be adapted to the causes, and to the man as affected by those causes," leading criminal law scholars declared. "Thus the great truth of the present and the future, for criminal science, is …

From The Ne'er-Do-Well To The Criminal History Category: The Refinement Of The Actuarial Model In Criminal Law, Bernard Harcourt

Faculty Scholarship

Criminal law in the United States experienced radical change during the course of the twentieth century. The dawn of the century ushered in an era of individualization of punishment. Drawing on the new science of positive criminology, legal scholars called for diagnosis of the causes of delinquency and for imposition of individualized courses of remedial treatment specifically adapted to these diagnoses. States gradually developed indeterminate sentencing schemes that gave corrections administrators and parole boards wide discretion over treatment and release decisions, and by 1970 every state in the country and the federal government had adopted a system of indeterminate sentencing. …

Reflections On The Killing State: A Cultural Study Of The Death Penalty In The Twentieth Century United States, Dwight Aarons

Scholarly Works

No abstract provided.

Should The Model Penal Code's Mens Rea Provisions Be Amended?, Kenneth Simons

Faculty Scholarship

The Model Penal Code approach to mens rea was a tremendous advance. The MPC carefully defines a limited number of mens rea terms, firmly establishes element analysis in place of offense analysis, and recognizes that the doctrine of mistake is part and parcel of the basic analysis of mens rea.

However, a revised Code could improve the drafting of the mens rea provisions in a number of respects:

* Clarify how to distinguish result, circumstance, and result elements

* Simplify the definitions of knowledge and purpose

* Perhaps eliminate the category of mens rea as to conduct

* Clarify the …