Criminal Law Commons^™

Fulfilling The Promise Of Payne: Creating Participatory Opportunities For Survivors In Capital Cases, Megan A. Mullett

Indiana Law Journal

No abstract provided.

The Boundaries Of Privacy Harm, M. Ryan Calo

Indiana Law Journal

Just as a burn is an injury caused by heat, so is privacy harm a unique injury with specific boundaries and characteristics. This Essay describes privacy harm as falling into two related categories. The subjective category of privacy harm is the perception of unwanted observation. This category describes unwelcome mental states—anxiety, embarrassment, fear—that stem from the belief that one is being watched or monitored. Examples of subjective privacy harms include everything from a landlord eavesdropping on his tenants to generalized government surveillance.

The objective category of privacy harm is the unanticipated or coerced use of information concerning a person against …

Not The Crime But The Cover-Up: A Deterrence-Based Rationale For The Premeditation-Deliberation Formula, Michael J. Zydney Mannheimer

Indiana Law Journal

Beginning with Pennsylvania in 1794, most American jurisdictions have, at one time or another, separated the crime of murder into two degrees based on the presence or absence of premeditation and deliberation. An intentional, premeditated, and deliberate murder is murder of the first degree, while second-degree murder is committed intentionally but without premeditation or deliberation. The distinction was created in order to limit the use of the death penalty, which generally has been imposed only for first-degree murder.

Critics have attacked the premeditation-deliberation formula on two fronts. First, they have charged that the formula is imprecise as a measure of …

Retail Rebellion And The Second Amendment, Darrell A. H. Miller

Indiana Law Journal

When, if ever, is there a Second Amendment right to kill a cop? This piece seeks to answer that question. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment codifies a natural right to keep and bear arms for selfdefense. That right to self-defense extends to both private and public threats, including self-defense against agents of a tyrannical government. Moreover, the right is individual. Individuals―not just communities―have the right to protect themselves from public violence. Individuals―not just militias―have the right to defend themselves against tyranny. In McDonald v. City of Chicago, the Court went further, …

The Pluralism Of International Criminal Law, Alexander K. A. Greenwalt

Indiana Law Journal

This Article develops a pluralistic account of substantive international criminal law (ICL). Challenging the dominant assumption among theorists and practitioners, it argues that the search for consistency and uniformity in ICL is misguided, that the law applicable to international crimes should not be the same in all cases, and that those guilty of like crimes should not always receive like sentences. In lieu of a one-size-fits-all criminal law, this Article proposes a four-tiered model of ICL that takes seriously the national laws of the state or states that, under normal circumstances, would be expected to assert jurisdiction over a case. …

The Material Support Prosecution And Foreign Policy, Wadie E. Said

Indiana Law Journal

No abstract provided.

Domestic Violence And State Intervention In The American West And Australia, 1860-1930, Carolyn B. Ramsey

Indiana Law Journal

This Article calls into question stereotypical assumptions about the presumed lack of state intervention in the family and the patriarchal violence of Anglo- American frontier societies in the late nineteenth and early twentieth centuries. By analyzing previously unexamined cases of domestic assault and homicide in the American West and Australia, Professor Ramsey reveals a sustained (but largely ineffectual) effort to civilize men by punishing violence against women. Husbands in both the American West and Australia were routinely arrested or summoned to court for beating their wives in the late 1800s and early 1900s. Judges, police officers, journalists, and others expressed …

"Why Rebottle The Genie?": Capitalizing On Closure In Death Penalty Proceedings, Jody L. Madeira

Indiana Law Journal

Closure, though a term with great rhetorical force in the capital punishment context, has to date evaded systematic analysis, instead becoming embroiled in ideological controversy. For victims who have rubbed the rights lamp for years, inclusion in capital proceedings and accompanying closure opportunities are perceived as a force with the potential to grant wishes of peace and finality. Scholars, however, argue for rebottling the closure genie lest closure itself prove false or its pursuit violate a defendant's constitutional rights. In order to effectively appraise the relationship of closure to criminal jurisprudence, however, and thus to decide whether and to what …

Coercing Voluntariness, Wadie E. Said

Indiana Law Journal

No abstract provided.

Liberty Lost: The Moral Case For Marijuana Law Reform, Eric Blumenson, Eva Nilsen

Indiana Law Journal

Marijuana policy analyses typically focus on the relative costs and benefits of present policy and its feasible alternatives. This Essay addresses a prior, threshold issue: whether marijuana criminal laws abridge fundamental individual rights, and if so, whether there are grounds that justify doing so. Over 700, 000 people are arrested annually for simple marijuana possession, a small but significant proportion of the 100 million Americans who have committed the same crime. In this Essay, we present a civil libertarian case for repealing marijuana possession laws. We put forward two arguments corresponding to the two distinct liberty concerns implicated by laws …

"Knock And Talk" And The Fourth Amendment, Craig M. Bradley

Indiana Law Journal

No abstract provided.

The Unabomber Revisited: Reexamining The Use Of Mental Disorder Diagnoses As Evidence Of The Mental Condition Of Criminal Defendants, Adam K. Magid

Indiana Law Journal

This Article revisits a longstanding debate concerning the appropriateness of diagnostic evidence in criminal cases in which a defendant’s mental condition is at issue. As illustrated through a case study of Theodore Kaczynski, more widely known as the “Unabomber,” a diagnosis of paranoid schizophrenia poses a risk of confounding a judge or jury attempting to ascertain an accurate picture of the mental state of a criminal defendant, specifically by (i) suggesting symptoms not actually present, (ii) creating a distorted picture of symptoms that are present, and (iii) suggesting organic, determinative factors as the mechanism behind a defendant’s actions, even where …

Midwestern Juvenile Drug Courts: Analysis & Recommendations, Nicole A. Kozdron

Indiana Law Journal

No abstract provided.

Crime, Legitimacy, And Testilying, I. Bennett Capers

Indiana Law Journal

No abstract provided.

"Behind This Mortal Bone": The (In)Effectiveness Of Torture, Jeannine Bell

Indiana Law Journal

This Essay addresses the theoretical debate on torture in an empirical way. It urges that as part of our evaluation of the merits of torture, we take a shrewd look at the quality of information brutal interrogations produce. The Essay identifies widespread belief in what the author identifies as the "torture myth "-the idea that torture is the most effective interrogation practice. In reality, in addition to its oft-acknowledged moral and legal problems, the use of torture carries with it a host of practical problems which seriously blunt its effectiveness. This Essay demonstrates that contrary to the myth, torture and …

Capital Defense Representation, Norman Lefstein

Indiana Law Journal

Symposium: Toward A Model Death Penalty Code: The Massachusetts Governor's Council Report.

The Blaming Function Of Entity Criminal Liability, Samuel W. Buell

Indiana Law Journal

Application of the doctrine of entity criminal liability, which had only a thin tortlike rationale at inception, now sometimes instantiates a social practice of blaming institutions. Examining that social practice can ameliorate persistent controversy over entity liability's place in the criminal law. An organization's role in its agent's bad act is often evaluated with a moral slant characteristic of judgments of criminality and with inquiry into whether the institution qua institution contributed to the agent's wrong. Legal process, by lending clarity and authority, enhances the communicative impact, in the form of reputational effects, of blaming an institution for a wrong. …

The Invisible Pillar Of Gideon, Adam M. Gershowitz

Indiana Law Journal

In 1996, the State of South Carolina charged Larry McVay with common-law robbery. McVay, who was employed part-time and took home less than $160 per week after taxes, claimed that after paying his basic living expenses he had no money left with which to hire an attorney. A South Carolina court disagreed and denied McVay's requestfor appointed counsel. ' Seven years later, Scott Peterson was arrested for the murder of his wife and unborn child in California. Although Peterson owned a home, drove an expensive SUV, and was carrying $10,000 in cash when he was captured, he claimed to be …

Lucky: The Sequel, Martha Chamallas

Indiana Law Journal

No abstract provided.

The Process Of The Governor's Council, Michael J. Sullivan

Indiana Law Journal

Symposium: Toward A Model Death Penalty Code: The Massachusetts Governor's Council Report.

Open Discussion: Capital Crime

Indiana Law Journal

Symposium: Toward A Model Death Penalty Code: The Massachusetts Governor's Council Report.

The Psychology Of Capital Punishment, Shelia M. Murphy

Indiana Law Journal

Symposium: Toward A Model Death Penalty Code: The Massachusetts Governor's Council Report.

Open Discussion: Role Of Scientific Evidence

Indiana Law Journal

Symposium: Toward A Model Death Penalty Code: The Massachusetts Governor's Council Report.

Forensic Science Or Forgettable Science?, Craig M. Cooley

Indiana Law Journal

Symposium: Toward A Model Death Penalty Code: The Massachusetts Governor's Council Report.

Unintended Consequences Of The Scientific Evidence Requirement, Jeffrey J. Pokorak

Indiana Law Journal

Symposium: Toward A Model Death Penalty Code: The Massachusetts Governor's Council Report.

Ethics, Science, And The Law Of Capital Punishment, Fredrick R. Bieber

Indiana Law Journal

Symposium: Toward A Model Death Penalty Code: The Massachusetts Governor's Council Report.

The Problem Of Death Qualification, Nancy J. King

Indiana Law Journal

Symposium: Toward A Model Death Penalty Code: The Massachusetts Governor's Council Report.

Procedural Default In Capital Cases, F. Thomas Schornhorst

Indiana Law Journal

Symposium: Toward A Model Death Penalty Code: The Massachusetts Governor's Council Report.

Negative Effects Of Capital Jury Selection, Andrea D. Lyon

Indiana Law Journal

Symposium: Toward A Model Death Penalty Code: The Massachusetts Governor's Council Report.

The Value Of Procedure, Stephen R. Creason

Indiana Law Journal

Symposium: Toward A Model Death Penalty Code: The Massachusetts Governor's Council Report.