Criminal Law Commons^™

9. The Problem Of Child Sexual Abuse: Response., Jennifer J. Freyd, Frank W. Putnam, Thomas D. Lyon, Kathryn A. Becker-Blease, Ross E. Cheit, Nancy B. Siegel, Kathy Pezdek

Thomas D. Lyon

10. Development Of Temporal-Reconstructive Abilities., William J. Friedman, Thomas D. Lyon

Thomas D. Lyon

Detection Avoidance, Chris William Sanchirico

ExpressO

In practice, the problem of law enforcement is half a matter of what the government does to catch violators and half a matter of what violators do to avoid getting caught. In the theory of law enforcement, however, although the state’s efforts at "detection" play a decisive role, offenders’ efforts at "detection avoidance" are largely ignored. Always problematic, this imbalance has become critical in recent years as episodes of corporate misconduct spur new interest in punishing process crimes like obstruction of justice and perjury. This article adds detection avoidance to the existing theoretical frame with an eye toward informing the …

Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough

University of Richmond Law Review

This article examines the most significant cases from the Supreme Court of Virginia and the Court of Appeals of Virginia over the past year. The article also outlines some of the most consequential changes to the law enacted by the Virginia General Assembly during the 2005 Session in the field of criminal law and procedure.

8. The Science Of Child Sexual Abuse., Jennifer J. Freyd, Frank W. Putnam, Thomas D. Lyon, Kathryn A. Becker-Blease, Ross E. Cheit, Nancy B. Siegel, Kathy Pezdek

Thomas D. Lyon

Post-Crawford: Time To Liberalize The Substantive Admissibility Of A Testifying Witness's Prior Consistent Statements, Lynn Mclain

All Faculty Scholarship

The United States Supreme Court's 1995 decision in Tome v. United States has read Federal Rule of Evidence 801(d)(1)(B) to prevent the prosecution's offering a child abuse victim's prior consistent statements as substantive evidence. As a result of that decision, the statements will also be inadmissible even for the limited purpose of helping to evaluate the credibility of a child, if there is a serious risk that the out-of-court statements would be used on the issue of guilt or innocence.

Moreover, after the Court's March 2004 decision in Crawford v. Washington, which redesigned the landscape of Confrontation Clause analysis, other …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

7. Why Child Maltreatment Researchers Should Include Children’S Disability Status In Their Maltreatment Studies., Kathleen Kendall-Tackett, Thomas D. Lyon, Greg Taliaferro

Thomas D. Lyon

True Lies: The Constitutional And Evidentiary Bases For Admitting Prior False Accusation Evidence In Sexual Assault Prosecutions, Jules Epstein

ExpressO

The admission of false accusation evidence in sexual assault prosecutions has been ruled on inconsistently by courts nationally. This article identifies the constitutional bases for admitting false accusation evidence as both impeachment and substantive (non-character) proof, and re-focuses Confrontation Clause analysis post-Crawford on the scope of the cross-examination right; offers a definition for what constitutes a false accusation and the level of proof requisite to its admission; and addresses social and policy concerns attendant to its presentation.

Dickerson V. United States: The Case That Disappointed Miranda's Critics--And Then Its Supporters, Yale Kamisar

University of San Diego Public Law and Legal Theory Research Paper Series

It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda’s constitutional status has become less and less meaningful.

In this paper I want to focus on the Court’s characterization of statements elicited in violation of the Miranda warnings as not actually “coerced” …

Securing A Journalist's Testimonial Privilege In The International Criminal Court, Anastasia Heeger

San Diego International Law Journal

This Article argues that given the unique and significant contribution of journalists to uncovering and documenting war crimes, the ICC should amend its evidentiary rules to recognize a qualified journalist's privilege. In doing so, the ICC should clearly identify who may benefit from such a privilege, clarify a procedure for balancing the need of reportorial testimony against prosecution and defense interests, and, lastly provide for mandatory consultations between the court and affected news organizations or journalists before allowing the issuance of a subpoena. Such clarity will benefit not only journalists working in war zones and the ICC, but will provide …

Constitutional Law—The Fourth Amendment Challenge To Dna Sampling Of Arrestees Pursuant To The Justice For All Act Of 2004: A Proposed Modification To The Traditional Fourth Amendment Test Of Reasonableness, Kimberly A. Polanco

University of Arkansas at Little Rock Law Review

No abstract provided.

Faith-Based Miranda: Why The New Missouri V. Seibert Police Bad Faith Test Is A Terrible Idea, Joelle A. Moreno

Faculty Publications

No abstract provided.

Garda Diversion Of Young Offenders: An Unreasonable Threat To Due Process Rights?, Liz Campbell

Liz Campbell

Diversion programmes play a significant role in the field of youth justice, as an alternative to the conventional court process, which aim to prevent the entry of the child into the formal justice system. This article seeks to establish whether the purported benefits of the pre-trial police diversion programme in Ireland outweigh any infringements on the rights of the child. Firstly, the salient legislative provisions are briefly elucidated, and then the application of the Programme to date is examined. Next, the issue of whether traditional due process rights are relevant or necessary in the context of the Garda diversion programme …

Strategies For Challenging Police Drug Jargon Testimony, Joelle A. Moreno

Faculty Publications

No abstract provided.

The Chorus Of Liars: Opsahl V. State Of Minnesota, David T. Schultz

William Mitchell Law Review

A recanting witness is a liar. Either he lied at trial or he is lying now. When the recanting witness’s new story is joined by others, so that his solo is now a chorus, the judicial system must find the delicate balance between fairness to society and protection of the individual defendant’s rights. When the case is old and the recanting witnesses many, the difficulty of finding that balance is even greater. Such were the circumstances facing the Minnesota Supreme Court when, in 2004, it heard the case of Darby Opsahl, a man convicted in 1992 of a murder that …

Crawford V. Washington: A Small Advantage For Criminal Defense In Cases Where Prosecution Seeks To Introduce Hearsay Evidence, Jason W. Eldridge

William Mitchell Law Review

This article will examine the Crawford holding and its effects on hearsay law in criminal trials in Minnesota. First, it will attempt to explain the Crawford holding and the Supreme Court’s analysis. Next, it will examine Crawford’s general effect on the Minnesota Rules of Evidence concerning hearsay. Then, this article will consider Crawford’s effect upon criminal cases and some of the arguments it presents for criminal defense attorneys and prosecutors. Finally, this article will conclude that the Crawford decision is a small boon for criminal defense attorneys.

An Evidentiary Paradox: Defending The Character Evidence Prohibition By Upholding A Non-Character Theory Of Logical Relevance, The Doctrine Of Chances, Edward J. Imwinkelried

University of Richmond Law Review

No abstract provided.

Reenvisioning Law Through The Dna Lens, Edward K. Cheng

Vanderbilt Law School Faculty Publications

In recent times, no development has transformed the practice of criminal justice as much as DNA evidence. In little over fifteen years, DNA profiling has produced nothing short of a paradigm shift.1 For police and prosecutors, DNA has become a potent weapon for identifying and convicting criminals. Trace biological material left at a crime scene now provides critical evidence for generating leads through "cold searches" of DNA databases and for convicting defendants at trial. At the same time, for defense attorneys, DNA has become an invaluable tool for seeking exonerations, because just as DNA can link defendants to crimes, it …

Removing The Roadblocks To Successful Domestic Violence Prosecutions: Prosecutorial Use Of Expert Testimony On The Battered Woman Syndrome In Ohio, Matthew P. Hawes

Cleveland State Law Review

This note contends that Ohio should join the modern trend and allow expert testimony on the battered woman syndrome in a limited form in domestic violence prosecutions. Part II of this note explores the syndrome and its origins. Part III provides background on the evidentiary uses of the syndrome in Ohio. It discusses the emergence of the battered woman syndrome in Ohio courts, and then examines the unsuccessful initial attempts by prosecutors in Ohio to use expert testimony on the syndrome.Part IV looks at how several jurisdictions outside of Ohio have addressed this issue. Part V presents the argument that …

A Jurisprudence Of Doubt: Missouri V. Seibert, United States V. Patane, And The Supreme Court's Continued Confusion About The Constitutional Status Of Miranda, Johnathan L. Rogers

Oklahoma Law Review

No abstract provided.

Evidence—Sixth Amendment And The Confrontation Clause—Testimonial Trumps Reliable: The United States Supreme Court Reconsiders Its Approach To The Confrontation Clause. Crawford V. Washington, 541 U.S. 36 (2004)., Kristen Sluyter

University of Arkansas at Little Rock Law Review

No abstract provided.

Punishment Decisions At Conviction: Recognizing The Jury As Fault-Finder, Michael T. Cahill

Faculty Scholarship

No abstract provided.

A Brave New World Of Criminal Justice: Neil Gerlach's Genetic Imaginary, Stephen Coughlan

Articles, Book Chapters, & Popular Press

In this well written and intriguing book, Neil Gerlach asks why the criminal justice system has accepted DNA evidence in much the same way that our Anglo-Saxon predecessors accepted trial by ordeal. Why have we not instead shown the same caution we show polygraph evidence? To be sure, he does not present the issue in those terms, and might shudder at the analogy. Still, the central issue he pursues in the book is the question of how DNA evidence has managed to assume its current aura of infallibility, as evidence which is somehow uniquely objective and "true": how it has …

Evidence Destroyed, Innocence Lost: The Preservation Of Biological Evidence Under Innocence Protection Statutes, Cynthia Jones

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Deviance, Due Process, And The False Promise Of Federal Rule Of Evidence 403, Aviva A. Orenstein

Articles by Maurer Faculty

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413 and 414 (concerning rape and child abuse, respectively) allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity. Courts have rejected due process challenges to the new rules, holding that Federal Rule of Evidence 403 serves as a check on any fairness concerns. However, courts' application of Rule 403 in cases involving these sexual propensity rules is troubling. Relying on the legislative history of the new rules and announcing a presumption of admissibility, courts have forsaken the traditional operation of …

An Exceptional Case: How Washington Should Amend Its Procedure For Imposing An Exceptional Sentence In Response To Blakely V. Washington, Jason Amala, Jason Laurine

Seattle University Law Review

This article reviews the Blakely decision and the Washington Legislature's response in S.B. 5477. Part II discusses the problem that Blakely created for Washington's sentencing guidelines system. Part III analyzes the judicial advisory and bifurcated trial proposals and explains why Washington wisely adopted the bifurcated trial approach. Part IV identifies key issues that are raised by using a bifurcated trial and analyzes how S.B. 5477 addresses, or fails to address, those issues. Finally, Part V concludes by suggesting that the legislature should have provided for the following in its bill responding to the Blakely decision: a provision allowing bifurcation for …

Prosecutorial Ethics, R. Michael Cassidy

R. Michael Cassidy

This casebook explores the ethical responsibilities of a prosecutor at each stage of the criminal justice process. Focusing on ethical and constitutional constraints on prosecutorial discretion, the texts covers both Supreme Court decisions interpreting Fifth and Sixth Amendment guarantees and state rules of attorney conduct. Topics discussed include a prosecutor’s conduct during criminal investigations, charging decisions, grand jury practice, interviewing and contacting witnesses, plea bargaining, jury selection, trial conduct, and publicity. Each chapter is followed by real-world hypotheticals designed to introduce students to the ethical dilemmas typically encountered by government lawyers in criminal practice. This book is suitable for use …

How The Confrontation Clause Defeated The Rape Shield Statute: Acquaintance Rape, The Consent Defense And The Nj Supreme Court's Ruling In State V. Garron, James B. Johnston

James B Johnston

Rape shield statutes are designed to limit a judge's discretion in allowing information about a rape victim's sexual past into evidence at trial. This is done to prevent dual victimization of the rape victim. First during the rape and then at trial. Despite rape shield protections the NJ Supreme Court ruled in State v. Garron that a victim's prior flirtations with the attacker, some of which occurred 6 years before the rape was admissible. The court overturned the attacker's guilty verdict and he went free. Advocates for rape victims rights were outraged. This article provides an analysis and critique of …

8. Speaking With Children: Advice From Investigative Interviewers., Thomas D. Lyon

Thomas D. Lyon