Law Commons^™

No Sense Of Decency, Kathryn E. Miller

Articles

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce, but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

The Color Of Justice, Alexis Hoag

Michigan Law Review

A Review of Free Justice: A History of the Public Defender in Twentieth-Century America. By Sara Mayeux.

Increasing Substantive Fairness And Mitigating Social Costs In Eviction Proceedings: Instituting A Civil Right To Counsel For Indigent Tenants In Pennsylvania, Robin M. White

Dickinson Law Review (2017-Present)

The U.S. Constitution provides criminal defendants the right to a court-appointed attorney but gives no similar protection to civil litigants. Although federal law does not supply any categorical rights to counsel for civil litigants, all 50 states have instituted the right in at least one category of civil law that substantially impacts individuals’ rights. Since 2017, several U.S. cities have enacted such a right for tenants facing eviction. In so doing, these cities responded to American families’ increasing rent burden, the recent publication of nationwide eviction data, the sociological research concerning the impact of eviction, and the lack of procedural …

Confronting Silence: The Constitution, Deaf Criminal Defendants, And The Right To Interpretation During Trial, Deirdre M. Smith

Maine Law Review

For most deaf people, interactions with the hearing community in the absence of interpretation or technological assistance consist of communications that are, at most, only partly comprehensible. Criminal proceedings, with the defendant's liberty interest directly at stake, are occasions in which the need for deaf people to have a full understanding of what is said and done around them is most urgent. Ironically, the legal “right to interpretation” has not been clearly defined in either statutory or case law. Although the federal and state constitutions do not provide a separate or lesser set of rights for deaf defendants, their situation …

"Another Day" Has Dawned: The Maine Supreme Judicial Court Holds Laboratory Evidence Subject To The Confrontation Clause In State V. Mangos, Reid Hayton-Hull

Maine Law Review

The Sixth Amendment's Confrontation Clause guarantees criminal defendants the right to “confront witnesses against them.” Specifically, the Clause ensures a criminal defendant's right to confront witnesses who testify against him by the unique medium, or “crucible,” of cross-examination. Although federal and state rules of evidence prohibiting hearsay and the Confrontation Clause are designed to protect similar interests, whether or not admission of a piece of evidence violates a defendant's rights under the Confrontation Clause is a separate analysis than whether that same piece of evidence is admissible under a rule of evidence. In 2004, the United States Supreme Court held …

Charging On The Margin, Paul T. Crane

Law Faculty Publications

The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions. In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses- penalties such as requirements to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation. Although there is a wealth of scholarship studying the effect this development has on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives. This Article starts to remedy that gap by exploring the influence that collateral consequences exert on …

Punitive Compensation, Cortney E. Lollar

Law Faculty Scholarly Articles

Criminal restitution is a core component of punishment. In its current form, this remedy rarely serves restitution's traditional aim of disgorging a defendant's ill-gotten gains. Instead, courts use this monetary award not only to compensate crime victims for intangible losses, but also to punish the defendant for the moral blameworthiness of her criminal action. Because the remedy does not fit into the definition of what most consider "restitution," this Article advocates for the adoption of a new, additional designation for this prototypically punitive remedy: punitive compensation. Unlike with restitution, courts measure punitive compensation by a victim's losses, not a defendant's …

The Challenges Of Preventing And Prosecuting Social Media Crimes, Thaddeus Hoffmeister

Pace Law Review

The adoption and use of social media by a broad spectrum of criminal defendants has raised some significant challenges for those tasked with crime prevention. This article will look at those challenges through the lens of three cases involving social media: United States v. Drew, United States v. Sayer, and United States v. Cassidy. However, prior to beginning that examination, this article will briefly discuss and categorize the various ways criminal defendants employ social media.

What Is Criminal Restitution?, Cortney E. Lollar

Law Faculty Scholarly Articles

A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore moves far beyond its traditional purpose of disgorging a defendant's ill-gotten gains. Instead, restitution has become a mechanism of imposing additional punishment. Courts, however, have failed to recognize the punitive nature of restitution and thus enter restitution orders without regard to the constitutional protections that normally attach to criminal proceedings. This Article deploys a novel …

Recent Landmark Criminal Law Decisions Of The Supreme Court: The Jurisprudence Of The Supreme Court: Fair Trial, Juvenile Justice, The Death Penalty, And The Right To Counsel, Richard Klein

Richard Daniel Klein

The Supreme Court has recently adjudicated some crucial issues regarding criminal matters and constitutional jurisprudence. The Court expanded the constitutional authority vested in Congress, provided defendants with constitutional remedies and protections, indicated that even a substantial amount of publicity surrounding a trial does not warrant a change of venue, left defense attorneys in awe of their new-found obligations, and settled important divisions among the U.S. circuit courts of appeal. Skilling v. U.S. revealed that a change of venue based on a claim of a tainted jury pool presents a difficult, if not impossible task, for criminal defendants. Padilla expanded the …

Child Pornography And The Restitution Revolution, Cortney E. Lollar

Law Faculty Scholarly Articles

Victims of child pornography are now successfully seeking restitution from defendants convicted of watching and trading their images. Restitution in child pornography cases, however, represents a dramatic departure from traditional concepts of restitution. This Article offers the first critique of this restitution revolution. Traditional restitution is grounded in notions of unjust enrichment and seeks to restore the economic status quo between parties by requiring disgorgement of ill-gotten gains. The restitution being ordered in increasing numbers of child pornography cases does not serve this purpose. Instead, child pornography victims are receiving restitution simply for having their images viewed. This royalty-type approach …

United States V. Henry: The Further Expansion Of The Criminal Defendant's Right To Counsel During Interrogations, Kevin T. Kerr

Pepperdine Law Review

Despite the Burger Court's history of judicial conservatism, the Supreme Court in United States v. Henry exceeds the liberality of the Warren Court in the area of criminal defendant rights. The decision in Henry clearly provides further limitations upon the government's ability to conduct interrogations. The author examines the Court's factual and legal analysis of the case, emphasizes how the test established in Henry surpasses the rule promulgated in Massiah, and discusses the decision's impact as well as the curious turnabout of Chief Justice Burger.

Proposition 8: California Law After In Re Lance W. And People V. Castro, Mark Dyer Klein, Randall A. Cohen

Pepperdine Law Review

Until recently, California provided a relatively high level of constitutional protection to criminal defendants. With the passage of Proposition 8 in 1982, the California voters expressed their desire to decrease this level of protection in order to remove impediments to the effective prosecution of criminally accuseds. This comment will examine two of the major provisions of Proposition 8 and their effect on California law in light of major cases decided by the California Supreme Court in 1985.

Avoiding The Insanity Defense Strait Jacket: The Mens Rea Route, Harlow M. Huckabee

Pepperdine Law Review

No abstract provided.

Supreme Court Criminal Law Jurisprudence - October 2008 Term, Richard Klein

Touro Law Review

The last Term of the Supreme Court addressed the constitutionally protected rights of criminal defendants not only at trial but at the post-conviction stage as well. The Court dealt with the defendant's rights to a speedy trial and effective assistance of counsel in Vermont v. Brillon; the claim was that these constitutional protections were substantially frustrated by underfunded public defender offices, thereby leaving the defendant improperly incarcerated for three years. The Court also considered a case wherein the State had utilized a jailhouse snitch to elicit inculpatory statements from a defendant in violation of his Sixth Amendment right to counsel. …

Alabama V. Shelton: One Small Step For Man, One Very Small Step For The Sixth Amendment's Right To Counsel, Joshua S. Stambaugh

Pepperdine Law Review

No abstract provided.

Apprehending War Criminals:Does International Cooperation Work?, Patricia M. Wald

American University International Law Review

No abstract provided.

Supreme Court Criminal Law Jurisprudence: Fair Trials, Cruel Punishment, And Ethical Lawyering—October 2009 Term, Richard Klein

Richard Daniel Klein

No abstract provided.

Supreme Court Criminal Law Jurisprudence: Fair Trials, Cruel Punishment, And Ethical Lawyering—October 2009 Term, Richard Klein

Scholarly Works

No abstract provided.

Rehabilitating Mental Disorder Evidence After Clark C. Arizona: Of Burdens, Presumptions, And The Rights To Raise Reasonable Doubt, Dora W. Klein

Faculty Articles

The right not to be found guilty of a crime absent proof beyond a reasonable doubt is a powerful right. It can be undermined, however, by rules that at first seem to have little to do with reasonable doubt or with burdens of proof.

In the recent case of Clark v. Arizona, the Supreme Court considered whether states may enact rules that categorically prohibit criminal defendants from offering mental disorder evidence for the purpose of raising reasonable doubt regarding the mens rea element of a charged offense. In Arizona law, mental disorder evidence is inadmissible for the purpose of disproving …

The Constitutional Right To A Treaty Preemption Defense, David Sloss

Faculty Publications

The Constitution includes several provisions specifically designed to protect criminal defendants. For example, the Fourth Amendment prohibits "unreasonable searches and seizures," the Sixth Amendment guarantees that criminal defendants have a right to legal representation, and the Eighth Amendment prohibits cruel and unusual punishments. The Constitution' s Founders recognized that state power is at its apex when the state threatens individuals with criminal sanctions. Accordingly, they adopted special constitutional rules to protect "the individual defendant from the awesome power of the State."

The Due Process Clause provides critical protection for criminal defendants; it stipulates that no State shall "deprive any person …

The Perplexing Problem Of Client Perjury, L. Timothy Perrin

Fordham Law Review

No abstract provided.

An Honest Approach To Plea Bargaining, Steven P. Grossman

All Faculty Scholarship

In this Article, the author argues that differential sentencing of criminal defendants who plead guilty and those who go to trial is, primarily, a punishment for the defendant exercising the right to trial. The proposed solution requires an analysis of the differential sentencing motivation in light of the benefit to society and the drawbacks inherent in the plea bargaining system.

Reconceptualizing Criminal Law Defenses, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In 1933, one of the leading theorists of the criminal law, Jerome Michael, wrote openly of the criminal law "as an instrument of the state." Today, criminal law is largely allergic to claims of political theory; commentators obsess about theories of deterrence and retribution, and the technical details of model codes and sentencing grids, but rarely speak of institutional effects or political commitments. In this article, the author aims to change that emphasis and to examine the criminal law as a tool for governance. Her approach is explicitly constructive: it accepts the criminal law that we have, places it in …

Appeals From Pleas Of Guilty And Nolo Contendere: History And Procedural Considerations., Kevin Yeary

St. Mary's Law Journal

The changing history of appeal rights—made through decisional interpretation by the Texas Court of Criminal Appeals—highlights the importance of staying current on interpretations of procedural and substantive rules. Lawyers owe their clients a duty to understand the history of the right to appeal from a conviction following a guilty plea. Additionally, they owe their clients a duty to understand substantive and procedural requirements for maintaining such appeals, as well as to stay abreast of changes affecting these appeals. Recently, the Texas Court of Criminal Appeals handed down several opinions drastically reshaping the landscape for appeals following pleas of guilty and …

The Confrontation Clause: Statements Against Penal Interest As A Firmly Rooted Hearsay Exception, Amy N. Loth

Cleveland State Law Review

This Article will explore why these types of confessions, called self-inculpatory statements, should be admissible under the Confrontation Clause of the Sixth Amendment. Part IIA of this Article will discuss the two-part test set forth in Ohio v. Roberts. Part IIB will address Lilly v. Virginia, the Supreme Court's first attempt to resolve whether statements against penal interest are sufficiently reliable to be admissible under the Confrontation Clause. Part IIB will also explore the distinction between self-inculpatory and non-self-inculpatory statements, what constitutes a "firmnly rooted" hearsay exception, and also the policy concerns behind creating a "firmly rooted" hearsay exception. Part …

Departing Is Such Sweet Sorrow: A Year Of Judicial Revolt On "Substantial Assistance" Departures Follows A Decade Of Prosecutorial Indiscipline (Prosecution Law Symposium), Frank O. Bowman Iii

Faculty Publications

the first section of this essay is devoted to demonstrating the courts' errors. Nonetheless, considered together, these opinions are perhaps an understandable reflection of judicial unease with an important component of the federal sentencing system — the longstanding, but increasingly common, practice of making deals with criminal defendants to reduce their sentences in return for testimony against their accomplices. This Article's second section will consider the most common criticisms of the system of bargaining for testimony under the United States Sentencing Guidelines (the Guidelines) to determine whether Singleton and Sealed Case may be good policy even if they are bad …

Right To Trial By Jury, Court Of Appeals People V. Page

Touro Law Review

No abstract provided.

Beauty And The Beast: Physical Appearance Discrimination In American Criminal Trials Comment., David L. Wiley

St. Mary's Law Journal

This Comment considers physical appearance discrimination by jurors in criminal trials. It proposes remedial measures to eliminate discrimination and effectuate the underlying purposes of jury trials. Part II of this Comment examines the psychological process of corporeal attribution and discusses the underlying philosophic dichotomy of image and substance. It surveys the role modern American culture plays in discrimination in the American criminal law system and discusses parallel relationships between race, sex, and physical appearance discrimination. Part IV explores constitutional ramifications of fostering and promoting physical appearance discrimination in criminal trials. Finally, Part V presents remedies designed to ensure criminal defendants …

A Quiet Year: The Supreme Court's Criminal Law Decisions During The 1991 Term, William E. Hellerstein

Touro Law Review

No abstract provided.