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Full-Text Articles in Criminal Law

Prosecuting Rape Victims While Rapists Run Free: The Consequences Of Police Failure To Investigate Sex Crimes In Britain And The United States, Lisa Avalos Jan 2019

Prosecuting Rape Victims While Rapists Run Free: The Consequences Of Police Failure To Investigate Sex Crimes In Britain And The United States, Lisa Avalos

Michigan Journal of Gender and Law

Imagine that a close friend is raped, and you encourage her to report it to the police. At first, she thinks that the police are taking her report seriously, but the investigation does not seem to move forward. The next thing she knows, they accuse her of lying and ultimately file charges against her. You and your friend are in shock; this outcome never entered your minds. This nightmare may seem inconceivable, but it has in fact occurred repeatedly in both the United States and Britain—countries that are typically lauded for their high levels of gender equality. In Britain ...


Civil Asset Forfeiture Abuse: Can State Legislation Solve The Problem?, David Pimentel Dec 2017

Civil Asset Forfeiture Abuse: Can State Legislation Solve The Problem?, David Pimentel

David Pimentel

Civil asset forfeiture is an extraordinarily powerful tool for law enforcement, allowing the seizure of assets without proof of wrongdoing, and with few safeguards in place to protect innocent owners. The incentives to overreach are powerful as police are usually able to keep whatever they seize for their own use. Federal reform in 2000 was largely ineffective to rein in the abuses, and with public outrage against the practice rising, states are starting to weigh in with reforms of their own. But this is a complex area of law, and the financial incentives to perpetuate it are powerful. Accordingly, many ...


Distinguished Jurist-In-Residence Lecture: Sentencing Reform: When Everyone Behaves Badly, Nancy Gertner Nov 2017

Distinguished Jurist-In-Residence Lecture: Sentencing Reform: When Everyone Behaves Badly, Nancy Gertner

Maine Law Review

Sentencing is different from almost all functions of the government and surely different from the other functions of the judiciary. It is the moment when state power meets an individual directly. It necessarily involves issues that are distinct from those in other areas of the law. It requires a court to focus on the defendant, to craft a punishment proportionate to the offense and to the offender. It should come as no surprise that in countries across the world, common law and civil code, totalitarian and free, judges have been given great discretion in sentencing. To be sure, that power ...


Frank M. Coffin Lecture On Law And Public Service: The Future Of International Criminal Justice, Richard J. Goldstone Nov 2017

Frank M. Coffin Lecture On Law And Public Service: The Future Of International Criminal Justice, Richard J. Goldstone

Maine Law Review

The Thirteenth Annual Frank M. Coffin Lecture on Law and Public Service was held in the fall of 2004. Justice Richard J. Goldstone, former Justice of the Constitutional Court of South Africa and pioneer for international justice and human rights, delivered the lecture. Established in 1992, the lecture honors Judge Frank M. Coffin, Senior Circuit Judge of the United States Court of Appeals for the First Circuit, an inspiration, mentor, and friend to the University of Maine School of Law.


Reconsidering Trials In Absentia At The Special Tribunal For Lebanon: An Application Of The Tribunal's Early Jurisprudence, Maggie Gardner Nov 2017

Reconsidering Trials In Absentia At The Special Tribunal For Lebanon: An Application Of The Tribunal's Early Jurisprudence, Maggie Gardner

Maggie Gardner

Since Nuremburg, no individual has been prosecuted in an international or internationalized court entirely in his or her absence. That may soon change. The Special Tribunal for Lebanon, which is empowered to try defendants in absentia, has now confirmed its first indictment. While its trial in absentia procedures were met with concern and criticism from some quarters when they were first announced, reconsideration is warranted in light of subsequent judicial developments. The judges of the Special Tribunal for Lebanon have now established in their preliminary decisions an interpretive approach to the Tribunal’s Statute that is adamantly purposive. This purposive ...


When Empathy Bites Back: Cautionary Tales From Neuroscience For Capital Sentencing, Sheri Lynn Johnson, Amelia Courtney Hritz, Caisa Elizabeth Royer, John H. Blume Nov 2017

When Empathy Bites Back: Cautionary Tales From Neuroscience For Capital Sentencing, Sheri Lynn Johnson, Amelia Courtney Hritz, Caisa Elizabeth Royer, John H. Blume

John H. Blume

This Article examines the implications of emerging neuroscientific findings regarding empathy for capital trials. We have approached this task with caution because neuroscientists’ understanding of the human brain is still evolving. As with any new field, if neuroscience is completely trusted before it is thoroughly tested, there is a risk of embracing the new phrenology. Given the state of the research, our advice to defense lawyers is quite modest, but we believe that there are some important lessons for lawyers, judges, legislators, and other stakeholders in the capital punishment system.


The Effects Of Promising To Tell The Truth, The Putative Confession, And Recall And Recognition Questions On Maltreated And Non-Maltreated Children's Disclosure Of A Minor Transgression, Jodi A. Quas, Stacia N. Stolzenberg, Thomas D. Lyon Nov 2017

The Effects Of Promising To Tell The Truth, The Putative Confession, And Recall And Recognition Questions On Maltreated And Non-Maltreated Children's Disclosure Of A Minor Transgression, Jodi A. Quas, Stacia N. Stolzenberg, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

This study examined the utility of two interview instructions designed to overcome children’s reluctance to disclose transgressions: eliciting a promise from children to tell the truth and the putative confession (telling children that a suspect “told me everything that happened and wants you to tell the truth”). The key questions were whether the instructions increased disclosure in response to recall questions and in response to recognition questions that were less or more explicit about transgressions, and whether instructions were differentially effective with age. Two-hundred and seventeen 4- to 9-year-old maltreated and comparable non-maltreated children played with a stranger. This ...


Child Witnesses, Thomas D. Lyon, Kelly Mcwilliams, Shanna Williams Nov 2017

Child Witnesses, Thomas D. Lyon, Kelly Mcwilliams, Shanna Williams

University of Southern California Legal Studies Working Paper Series

In this chapter we provide an overview of psychological issues involving children’s capacities as witnesses. First, we discuss the kinds of cases in which children are usually involved. Across different courts, one most often sees children describing abuse at the hands of familiar adults. Second, we describe the difficulties children encounter in disclosing abuse, particularly when it is perpetrated by adults close to them. These dynamics lead most children to remain silent, and only the most forthcoming children to disclose. Third, we suggest a framework for assessing children’s allegations, in which child-generated and adult-generated information lie on opposite ...


19. Child Witnesses., Thomas D. Lyon, Kelly Mcwilliams, Shanna Williams Nov 2017

19. Child Witnesses., Thomas D. Lyon, Kelly Mcwilliams, Shanna Williams

Thomas D. Lyon

In this chapter we provide an overview of psychological issues involving children’s capacities as witnesses. First, we discuss the kinds of cases in which children are usually involved. Across different courts, one most often sees children describing abuse at the hands of familiar adults. Second, we describe the difficulties children encounter in disclosing abuse, particularly when it is perpetrated by adults close to them. These dynamics lead most children to remain silent, and only the most forthcoming children to disclose. Third, we suggest a framework for assessing children’s allegations, in which child-generated and adult-generated information lie on opposite ...


Born Again On Death Row: Retribution, Remorse, And Religion, Michael A. Simons Nov 2017

Born Again On Death Row: Retribution, Remorse, And Religion, Michael A. Simons

The Catholic Lawyer

No abstract provided.


Crime And Punishment: A Catholic Perspective, Joseph L. Falvey, Jr. Nov 2017

Crime And Punishment: A Catholic Perspective, Joseph L. Falvey, Jr.

The Catholic Lawyer

No abstract provided.


Calling Crawford: Minnesota Declares A 911 Call Non-Testimonial In State V. Wright, Alistair Y. Raymond Nov 2017

Calling Crawford: Minnesota Declares A 911 Call Non-Testimonial In State V. Wright, Alistair Y. Raymond

Maine Law Review

In State v. Wright, 1 the State of Minnesota charged David Wright with possession of a firearm by a felon and two counts of second-degree assault against his girlfriend and her sister. A jury found Wright guilty on all charges and sentenced him to sixty months in jail for each crime, with sentences served concurrently. Wright’s girlfriend, R.R., and her sister, S.R., did not testify against him at trial. The prosecution, however, used the transcript of a 911 call placed by R.R. against Wright in the trial. Although the 911 call was hearsay, the court admitted ...


Parsing Personal Predilections: A Fresh Look At The Supreme Court's Cruel And Unusual Death Penalty Jurisprudence, Susan M. Raeker-Jordan Nov 2017

Parsing Personal Predilections: A Fresh Look At The Supreme Court's Cruel And Unusual Death Penalty Jurisprudence, Susan M. Raeker-Jordan

Maine Law Review

The now well-known case of Atkins v. Virginia decided that the execution of those with mental retardation constituted cruel and unusual punishment under the Eighth Amendment. The more recent case of Roper v. Simmons decided that execution of those who were under the age of eighteen when they committed their crimes also constituted cruel and unusual punishment. Both decisions changed the law that had existed since 1989, when the Court held in Penry v. Lynaugh and Stanford v. Kentucky that executions of members of both classes were not unconstitutional. Writing for the Court in Atkins v. Virginia, Justice Stevens was ...


The Relation Between Young Children's False Statements And Response Latency, Executive Functioning, And Truth-Lie Understanding, Shanna Williams, Elizabeth C. Ahern, Thomas D. Lyon Nov 2017

The Relation Between Young Children's False Statements And Response Latency, Executive Functioning, And Truth-Lie Understanding, Shanna Williams, Elizabeth C. Ahern, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

This study examined relations between children’s false statements and response latency, executive functioning, and truth-lie understanding in order to understand what underlies children’s emerging ability to make false statements. A total of 158 (2- to 5- year-old) children earned prizes for claiming that they were looking at birds even when presented with images of fish. Children were asked recall (“what do you have?”), recognition (“do you have a bird/fish?”), and outcome (“did you win/lose?”) questions. Response latencies were greater when children were presented with fish pictures than bird pictures, particularly when they were asked recall questions ...


61. The Relation Between Children’S False Statements And Response Latency, Executive Functioning, And Truth-Lie Understanding., Shanna Williams, Elizabeth C. Ahern, Thomas D. Lyon Nov 2017

61. The Relation Between Children’S False Statements And Response Latency, Executive Functioning, And Truth-Lie Understanding., Shanna Williams, Elizabeth C. Ahern, Thomas D. Lyon

Thomas D. Lyon

This study examined relations between children’s false statements and response latency, executive functioning, and truth-lie understanding in order to understand what underlies children’s emerging ability to make false statements. A total of 158 (2- to 5-year-old) children earned prizes for claiming that they were looking at birds even when presented with images of fish. Children were asked recall (“what do you have?”), recognition (“do you have a bird/fish?”), and outcome (“did you win/lose?”) questions. Response latencies were greater when children were presented with fish pictures than bird pictures, particularly when they were asked recall questions, and ...


A New Future? The Catholic Church, Grassroots Justice, And Accountability, Regina Menachery Paulose Nov 2017

A New Future? The Catholic Church, Grassroots Justice, And Accountability, Regina Menachery Paulose

The Social Practice of Human Rights: Charting the Frontiers of Research and Advocacy

Between the 1970s and 1980s, Guatemalans, particularly the indigenous populations, were targets of a state-sponsored genocide. Several years after the genocide, Catholic Bishop Juan Gerardi of Guatemala City took the lead in creating the Recovery of Historical Memory Project which was an independent investigation into the events of the genocide. Gerardi was murdered before the report was made public. This paper will briefly discuss Gerardi’s work and his contribution to local justice in Guatemala. The author will then explore what contributions the Catholic Church could make in creating similar fact-finding missions. Could a grassroots mechanism such as the one ...


Alotaibi V. State, 133 Nev. Adv. Op. 81 (Nov. 9, 2017) (En Banc), Brendan Mcleod Nov 2017

Alotaibi V. State, 133 Nev. Adv. Op. 81 (Nov. 9, 2017) (En Banc), Brendan Mcleod

Nevada Supreme Court Summaries

The Court clarified that when an element goes only to punishment and is not essential to a finding of guilt, it is not an element of the offense for purposes of determining whether a lesser-included-offense instruction is warranted pursuant to NRS 175.501. Further, the Court determined that where a statute provides alternative ways of committing an uncharged offense, the elements of only one of those alternatives needs to be included in the charged offense for the uncharged offense to be a lesser-included offense.


Relations Between Attorney Temporal Structure And Children's Response Productivity In Cases Of Alleged Child Sexual Abuse, J. Zoe Klemfuss, Kyndra C. Cleveland, J A. Quas, Thomas D. Lyon Nov 2017

Relations Between Attorney Temporal Structure And Children's Response Productivity In Cases Of Alleged Child Sexual Abuse, J. Zoe Klemfuss, Kyndra C. Cleveland, J A. Quas, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

Purpose. Previous research has demonstrated that attorney question format relates to child witness’ response productivity. However, little work has examined the extent to which attorneys provide temporal structure in their questions, and the effects of this structure on children’s responding. The purpose of this study was to address this gap in the literature to identify methods by which attorneys increase children’s response productivity on the stand without risking objections from opposing counsel for ‘calling for narrative answers’.

Methods. In this study, we coded criminal court transcripts involving child witnesses (5–18 years) for narrative structure in attorney questions ...


When Interviewing Children: A Review And Update, Karen J. Saywitz, Thomas D. Lyon, Gail S. Goodwin Nov 2017

When Interviewing Children: A Review And Update, Karen J. Saywitz, Thomas D. Lyon, Gail S. Goodwin

University of Southern California Legal Studies Working Paper Series

In this chapter, we highlight principles for interviewing children based on the best available science, understanding that such principles keep changing as new evidence accumulates and that gaps exist in the knowledge base where guidance is limited. Interviewers will need to stay abreast of new developments. First, we briefly describe the data base from which the tools derive--studies conducted in the laboratory and in the field. Then we discuss evidence-based interview tools and features of the interview about which there is sufficient empirical evidence and consensus to derive “toolboxes.” We discuss interview structure, setting, children’s reluctance and suggestibility, rapport ...


Spatial Language, Question Type, And Young Children's Ability To Describe Clothing: Legal And Developmental Implications, Stacia N. Stolzenberg, Kelly Mcwilliams, Thomas D. Lyon Nov 2017

Spatial Language, Question Type, And Young Children's Ability To Describe Clothing: Legal And Developmental Implications, Stacia N. Stolzenberg, Kelly Mcwilliams, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

Children’s descriptions of clothing placement and touching with respect to clothing are central to assessing child sexual abuse allegations. This study examined children’s ability to answer the types of questions attorneys and interviewers typically ask about clothing, using the most common spatial terms (on/off, outside/inside, over/under). Ninety-seven 3- to 6-year-olds were asked yes/no (e.g. “Is the shirt on?”), forced-choice (e.g., “Is the shirt on or off?”), open-choice (e.g., “Is the shirt on or off or something else?”), or where questions (e.g., “Where is the shirt?”) about clothing using a human ...


"Where Were Your Clothes?" Eliciting Descriptions Of Clothing Placement From Children Alleging Sexual Abuse In Criminal Trials And Forensic Interviews, Stacia N. Stolzenberg, Thomas D. Lyon Nov 2017

"Where Were Your Clothes?" Eliciting Descriptions Of Clothing Placement From Children Alleging Sexual Abuse In Criminal Trials And Forensic Interviews, Stacia N. Stolzenberg, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

Purpose: The present study examined how children alleging sexual abuse are asked about clothing placement during abusive episodes, both in criminal trials and forensic interviews. The placement of clothing is of great importance, because it facilitates distinguishing abusive touch from non-abusive touch, as well as the severity of abuse when the touching is in fact sexual. If clothing has not been removed, then sexual abuse appears less likely and certain types of sexual contact are physically impossible (or at least highly improbable). Methods: We examined how trial attorneys (n = 142) and forensic interviewers in investigative interviews (n = 155) questioned 5- ...


Smashing The Tragic Illusion Of Justice: The Reprehensibility Of The Death Penalty In Virginia, Meagan E. Costello Nov 2017

Smashing The Tragic Illusion Of Justice: The Reprehensibility Of The Death Penalty In Virginia, Meagan E. Costello

The Catholic Lawyer

No abstract provided.


Capital Punishment In The Age Of Terrorism, Norman L. Greene, Norman Redlich, David Bruck, Paul Saunders, Richard Weisberg, Kenneth Roth Nov 2017

Capital Punishment In The Age Of Terrorism, Norman L. Greene, Norman Redlich, David Bruck, Paul Saunders, Richard Weisberg, Kenneth Roth

The Catholic Lawyer

No abstract provided.


An Empirical Look At Commander Bias In Sexual Assault Cases, Eric R. Carpenter Nov 2017

An Empirical Look At Commander Bias In Sexual Assault Cases, Eric R. Carpenter

Eric R. Carpenter

In response to the American military’s perceived inability to handle sexual assault cases, the Uniform Code of Military Justice is undergoing its most significant restructuring since its creation in 1950. Critics point to the high rates of sexual assault case attrition as a sign that the system is failing sexual assault victims. The theory is that commanders are predisposed to believe the offenders and to blame the victims. This bias then causes high levels of attrition as the commanders undervalue the cases and divert them from the legal process. This study tests that causal inference. It measures the attrition ...


Bringing Penance Back To The Penitentiary: Using The Sacrament Of Reconciliation As A Model For Restoring Rehabilitation As A Priority In The Criminal Justice System, John Celichowski, O.F.M Cap. Nov 2017

Bringing Penance Back To The Penitentiary: Using The Sacrament Of Reconciliation As A Model For Restoring Rehabilitation As A Priority In The Criminal Justice System, John Celichowski, O.F.M Cap.

The Catholic Lawyer

No abstract provided.


Introducing Plea Bargaining Into Post-Conflict Legal Systems, Cynthia Alkon, Ena Dion Nov 2017

Introducing Plea Bargaining Into Post-Conflict Legal Systems, Cynthia Alkon, Ena Dion

Cynthia Alkon

Criminal justice systems around the world face overwhelming caseloads and ever-increasing pressure to handle more. This pressure can be even more serious in post-conflict countries that face additional problems such as limited resources and fragile political environments. In overloaded criminal justice systems it may be difficult, if not impossible, to hold trials for every accused person in a timely way. As a result, countries are increasingly looking to alternative processes to handle criminal cases beyond traditional formal trials. Plea bargaining is frequently considered as a possible solution to problems of case backlogs, long periods of pretrial detention, and to help ...


Plea Bargain Negotiations: Defining Competence Beyond Lafler And Frye, Cynthia Alkon Nov 2017

Plea Bargain Negotiations: Defining Competence Beyond Lafler And Frye, Cynthia Alkon

Cynthia Alkon

In the companion cases of Lafler v. Cooper and Missouri v. Frye the U.S. Supreme Court held that there is a right to effective assistance of counsel during plea bargaining. However, the Court defined effective assistance of counsel in only one narrow phase of plea bargaining: the client counseling phase. The Court said it would not look more broadly at the negotiation process itself as "[b]argaining is, by its nature, defined to a substantial degree by personal style.” This statement indicates that the Court does not fully understanding developments in the field of negotiation over the last thirty ...


Hard Bargaining In Plea Bargaining: When Do Prosecutors Cross The Line?, Cynthia Alkon Nov 2017

Hard Bargaining In Plea Bargaining: When Do Prosecutors Cross The Line?, Cynthia Alkon

Cynthia Alkon

Well over 90 percent of all criminal cases in the United States are resolved by plea bargaining and not by trial. This means that how plea bargaining works impacts nearly every criminal defendant. However, there are few restrictions to protect defendants in the negotiating process. One serious problem is that prosecutors regularly use hard bargaining tactics such as exploding offers, threats to add enhancements, take-it-or-leave-it offers, and threats to seek the death penalty. These hard bargaining tactics contribute to the often highly coercive atmosphere of plea bargaining that can lead innocent defendants to plead guilty. Pressure to plead guilty can ...


An Overlooked Key To Reversing Mass Incarceration: Reforming The Law To Reduce Prosecutorial Power In Plea Bargaining, Cynthia Alkon Nov 2017

An Overlooked Key To Reversing Mass Incarceration: Reforming The Law To Reduce Prosecutorial Power In Plea Bargaining, Cynthia Alkon

Cynthia Alkon

The need to “do something” about mass incarceration is now widely recognized. When President Obama announced plans to reform federal criminal legislation, he focused on the need to change how we handle non-violent drug offenders and parole violators. Previously, former Attorney General Eric Holder announced policies to make federal prosecutors “smart on crime.” These changes reflect, as President Obama noted, the increasing bipartisan consensus on the need for reform and the need to reduce our incarceration rates. However, proposals about what to reform, such as President Obama’s, tend to focus on some parts of criminal sentencing and on prosecutorial ...


What's Law Got To Do With It? Plea Bargaining Reform After Lafler And Frye, Cynthia Alkon Nov 2017

What's Law Got To Do With It? Plea Bargaining Reform After Lafler And Frye, Cynthia Alkon

Cynthia Alkon

This symposium article responds to the question, what's left of the law in the wake of ADR? The article addresses this question in the context of the criminal justice system in the United States. As with civil cases, few criminal cases go to trial. Negotiated agreements through plea bargaining have been the predominate form of case resolution since at least the mid-twentieth century. Plea bargaining, as with other forms of alternative dispute resolution, is an informal process that operates largely outside the formal legal system. Plea bargains are rarely negotiated on the record in open court. Instead, they are ...