Law Commons^™

Why Is It A Crime To Stomp On A Goldfish? Harm, Victimhood And The Structure Of Anti-Cruelty Offenses, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

In the article it is argued that, contrary to what prominent animal law scholars such as Gary Francione claim, we have decided to criminalize harm to animals primarily because we are concerned about the wellbeing of such creatures, not because doing so furthers some other human interest. I do so in four parts.

Part I provides a brief historical analysis of animal cruelty laws that will show that, although many of these statutes were originally enacted as a way to protect private property, there has been a marked trend, specially in recent times, to punish animal cruelty regardless, and sometimes …

The "Fetal Protection" Wars: Why America Has Made The Wrong Choice In Addressing Maternal Substance Abuse - A Comparative Legal Analysis, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Duress, Demanding Heroism And Proportionality: The Erdemovic Case And Beyond, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

This Article discusses the Erdemovic case in order toexamine whether duress should be a defense to a crime against humanity. Although the Article contends that the arguments in favor of permitting the defendant to claim duress weaken as the seriousness of the offense charged increases, the Article also argues that the duress defense should usually succeed if it can be proved that the actor could not have prevented the threatened harm by refusing to capitulate to the coercion. After balancing the competing considerations, the Author concludes that the defendant in Erdemovic should have been able to claim duress as a …

Integrating The Complexity Of Mental Disability Into The Criminal Law Course, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Normative Gaps In The Criminal Law: A Reasons Theory Of Wrongdoing, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

In this article it is argued that in two controversial homicide cases--severing conjoined twins and downing a hijacked commercial plane headed toward a heavily populated area--it is permissible to kill innocent human beings without having to establish the existence of a claim of justifcation such as self-defense or choice of evils. Even though criminal law scholars consider that unjustified conduct is always wrong, the position defended in the article is that there is a normative gap between an absence of justification and a finding of wrongdoing. This "normative gap defense," which negates wrongdoing without justifying the conduct, is the best …

Justice Without Politics: Prosecutorial Discretion And The International Criminal Court, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

The ICC Prosecutor's own charging policies should be prepared to give way to the judgments of legitimate political actors in times of political transition when actual arrests are more likely and competing justice proposals pose a more troubling challenge to the ICC's authority. In that scenario, I argue that the Prosecutor should encourage legitimate political actors to reach policy decisions that will command deference by the ICC. Such deference could take one or both of the following forms: (1) explicit deference to political actors, principally the U.N. Security Council acting under Chapter VII of the U.N. Charter, and (2) implied …

Is Silence Sacred? The Vulnerability Of Griffin V. California In A Terrorist World, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

Part I of this Article traces the shared history of the right against self-incrimination from twelfth-century England to the mid-twentieth century. Part II examines the modern history of the privilege in the United States, from the Supreme Court's 1965 decision in Griffin to its 1999 decision in Mitchell. Part III examines the United Kingdom's modern approach to the privilege, including its re-shaping of the privilege in response to domestic terrorism. Part IV examines why the U.S. and U.K. systems, with a common history and shared values, have moved in such dramatically different directions with respect to the privilege. Part V …

The Act Requirement As A Basic Concept Of Criminal Law, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Bound And Gagged: The Peculiar Predicament Of Professional Jurors, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

This Article advocates two changes to the law. First, parties should be allowed (but not required) to strike professional jurors for cause in cases involving their expertise without any additional showing of a particular bias toward one side or the other. Second, if such jurors are empanelled, they should not be “gagged.” Rather, they should be free to draw on and share their expertise as are all other jurors. This Article proceeds in four Parts. Part I discusses recent reform efforts that have fundamentally altered the jury system by opening it up to increased numbers of professional jurors. Part II …

Crime, War & Romanticism: Arthur Andersen And The Nature Of Entity Guilt, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

In 2002, Arthur Andersen, LLP stood trial for obstruction of justice. The prosecution offered several theories as to who at the firm had committed the crime but no one theory satisfied all twelve jurors. In an attempt to break its deadlock, the jury asked whether it could convict i f some jurors thought Person A at Andersen had done it and some thought it was Person B. Following argument, the judge ruled that it could convict.

This article argues that the court's response to the jury's query was wrong as a matter of law and policy. The ruling misconstrues the …

"Can You Hear Me Now?": Expectations Of Privacy, False Friends, And The Perils Of Speaking Under The Supreme Court's Fourth Amendment Jurisprudence, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

Part I of this article offers a brief history of the development of Fourth Amendment jurisprudence and the Court's articulation and application of what has come to be known as the exclusionary rule, which forbids some (but not all) government use of evidence seized in violation of the Fourth Amendment. Part II focuses on the false-friend cases, elaborating the Court's reasoning and showing why, although the most famous cases involve varying kinds of activity from electronic recording to eavesdropping to simple reporting of the false friend's observation, the Court's method has united these cases under a single analytical rubric. Part …

Reflections On Brady V. Maryland, Bennett L. Gershman

Elisabeth Haub School of 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 fertile and widespread …

Contaminating The Verdict: The Problem Of Juror Misconduct, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This article describes the myriad ways in which misconduct by jurors can contaminate a trial and verdict and the ability of courts to remedy such misconduct. Part II examines the case law in which criminal defendants have challenged their convictions on the basis of juror misconduct. Defendants have claimed that jurors were influenced by external contacts with third parties, exposed to extraneous, non-evidentiary information, engaged in contrived experiments and improper reenactments in the jury room, made dishonest and misleading statements during jury selection, engaged in conduct demonstrating bias and prejudgment, suffered from physical and mental impairments, engaged in pre-deliberation discussions …

Playing Hide And Seek: How To Protect Virtual Pornographers And Actual Children On The Internet, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

This Article considers the Supreme Court's suggestion and recommends a mechanism to regulate the virtual pornography market in a manner that balances the rights of virtual pornographers with the prosecution of actual child pornographers. Part II traces the events leading up to the Free Speech decision, commencing with the enactment of the Child Pornography Prevention Act of 1996 (CPPA). Part III discusses the Free Speech opinion and the post-Free Speech cases. Part IV examines the PROTECT Act--the legislative response to the Supreme Court's decision. Part V concludes that regulation of the virtual pornography industry is the most effective method of …

Prosecutorial Ethics And Victims' Rights: The Prosecutor's Duty Of Neutrality, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In recent years, enhanced legal protections for victims has caused victims to become increasingly involved in the criminal justice process, often working closely with prosecutors. In this Article, Professor Gershman analyzes the potential challenges to prosecutors' ethical duties that victims'participation may bring and suggests appropriate responses.

How Juries Get It Wrong - Anatomy Of The Detroit Terror Case, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This Article describes the background and trial of the four defendants in the so-called Detroit “Sleeper Cell” terrorist prosecution. It examines the evidence relied on by the jury to reach its verdict, particularly the testimony of a key turncoat witness who accused the defendants of participation in a terrorist conspiracy. Part III examines how the jury's search for truth was corrupted by false, misleading, and incomplete proof. It identifies several extrinsic sources of jury error including suppressed evidence, dishonest and unreliable testimony, partisan experts, coaching, obstructed cross-examination, and inflammatory arguments. Finally, with the Detroit terrorist trial as the model, Part …

Prison Reform Revisited: The Unfinished Agenda, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

Prison Reform Revisited: The Unfinished Agenda, which was held at Pace Law School from October 16-18, 2003, was a remarkable event. At this conference--a summit really--leading academics, attorneys, prison reformers, judges, prison officials and international prison reformers gathered at Pace Law School and the New York State Judicial Center in White Plains, New York to discuss how to advance the cause of prison reform in the U.S. This issue of the Pace Law Review is devoted to the papers presented in connection with that important conference.

"Which One Of You Did It? Criminal Liability For "Causing Or Allowing" The Death Of A Child, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

This article analyzes how current U.S. criminal law addresses the problem of securing a homicide conviction where multiple defendants are accused in a child's non-accidental death. Part III sets forth the English response: a statute that includes (1) a new substantive crime; (2) a permissible negative inference against a defendant who fails to account for the non-accidental death of a child for whom he or she is responsible; and (3) delay of a motion to dismiss for failure to establish a prima facie case until after the defense has been presented or the jury has been allowed to draw the …

Derecho Penal, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Intencion Especifica, Intoxicacion Voluntaria Y Otros Demonios, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Justice Still Fails: A Review Of Recent Efforts To Compensate Individuals Who Have Been Unjustly Convicted And Later Exonerated, Adele Bernhard

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

The Death Penalty--An Obstacle To The "War On Terrorism"?, Thomas Michael Mcdonnell

Elisabeth Haub School of Law Faculty Publications

September 11 seared our collective memory perhaps even more vividly than December 7, 1941, and has evoked a natural demand both for retribution and for measures to keep us safe. Given the existing statutory and judicial authority for capital punishment, the U.S. Government has to confront the issue whether to seek the death penalty against those who are linked to the suicide attacks or to the organization that sponsored them or both. Meting out the death penalty to international terrorists involves difficult moral, legal, and policy questions. The September 11 crimes were not only domestic crimes, but also international ones. …

New Technology, Old Defenses: Internet Sting Operations And Attempt Liability, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

This article addresses the general principles of attempt liability, including a description of the doctrines of factual and legal impossibility and the rationale behind the historical treatment of these defenses. Part III describes recent Internet attempt cases, and Part IV analyzes issues raised by such cases. This article suggests that the new Internet cases provide further rationale for rejecting a distinction between factual and legal impossibility that would allow the latter to be a defense. This article also discusses issues surrounding the appropriate mens rea for attempt, and its applicability to Internet cases, where the defendants claim ignorance or indifference …

Offensive Issue Preclusion In The Criminal Context: Two Steps Foward, One Step Back, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

This article addresses whether the expansion of the doctrine of issue preclusion in the federal criminal area should mirror the expansion of the doctrine in the federal civil area. The article examines the general requirements of issue preclusion and the evolution of issue preclusion in both the civil and criminal context. Next, this article examines the current status of offensive and defensive issue preclusion when the first suit is civil and the second suit is criminal, the first suit is criminal and the second suit is civil, and where both the first and second action is criminal. The article then …

Exonerations Change Judicial View On Ineffective Assistance Of Counsel, Adele Bernhard

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Dying Twice: Incarceration On Death Row, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

Dying Twice is an important report. The work is a collaboration between the Corrections Committee of the Association of the Bar of the City of New York, which I chaired, and the Committee on Capital Punishment of the Association chaired by Norman Greene. The working group that researched and wrote the report was drawn from members of both committees. The attorneys and the physician who served on the committee are wonderful, talented, dedicated people. It was a pleasure to work with professionals of this caliber on such an important effort. Dying Twice was endorsed as the position of the Association …

Two Sides Of A "Sargasso Sea": Successive Prosecution For The "Same Offence" In The United States And The United Kingdom, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

This article analyzes the U. S. constitutional law interpreting the concept of “same offence.” Included is a survey of the Supreme Court's attempts to interpret constitutional text in order to provide adequate protection for the underlying double jeopardy interest against vexatious reprosecutions, which have frequently produced inconsistent and illogical results. Part III of this article analyzes U.K. law relating to the concept of “same offence,” where the same narrow double jeopardy protection adopted by the U.S. Supreme Court is supplemented with a broad discretion to prevent unfair successive prosecution that constitutes an abuse of process. Part IV draws lessons from …

Dying Twice: Conditions On New York's Death Row, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

In 1995 New York State revived the death penalty as a punishment for certain categories of murder, and established a “death row” for condemned men at the Clinton Correctional Facility in Dannemora, New York (variously, “Clinton” or the “Prison”). Four years later, in October 1999, two committees of the Association of the Bar of the City of New York (the “Association”) joined together to study the conditions of confinement on this death row--or, as it is officially called, the Unit for Condemned Persons (the “UCP”). These committees--the Committee on Corrections and the Committee on Capital Punishment--formed a joint subcommittee (the …

Witness Coaching By Prosecutors, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Given its controversial nature, one would expect the practice and ethics of witness coaching to have attracted close scrutiny by courts and commentators. Interestingly, however, the subject has received relatively modest attention. A handful of judicial and ethics opinions have discussed superficially the subject of witness preparation and coaching. Practitioner manuals typically offer general guidance on how to prepare witnesses, and occasionally address tactical and ethical issues involved in coaching. Scholarly commentary has examined the ethical limits of witness preparation, particularly by differentiating acceptable techniques from improper techniques, which promote false or misleading testimony. In addition, popular culture occasionally has …

Take Courage: What The Courts Can Do To Improve The Delivery Of Criminal Defense Services, Adele Bernhard

Elisabeth Haub School of Law Faculty Publications

No abstract provided.