Digital Commons Network^™

The Sexual Assault Counselor-Victim Privilege: Jurisdictional Delay Into An Unclaimed Sanctuary, Armand Arabian

Pepperdine Law Review

No abstract provided.

(Re)Forming The Jury: Detection And Disinfection Of Implicit Juror Bias, Anna Roberts

Faculty Scholarship

No abstract provided.

Waiving Innocence, Samuel R. Wiseman

Scholarly Publications

No abstract provided.

Criminal Sanctions In The Defense Of The Innocent, Ehud Guttel, Doron Teichman

Michigan Law Review

Under the formal rules of criminal procedure, fact finders are required to apply a uniform standard of proof in all criminal cases. Experimental studies as well as real world examples indicate, however, that fact finders often adjust the evidentiary threshold for conviction in accordance with the severity of the applicable sanction. All things being equal, the higher the sanction, the higher the standard of proof that fact finders will apply in order to convict. Building on this insight, this Article introduces a new paradigm for criminal punishments-a paradigm that focuses on designing penalties that will reduce the risk of unsubstantiated …

Legitimizing International Criminal Justice: The Importance Of Process Control, Nancy Amoury Combs

Michigan Journal of International Law

The last two decades have witnessed an astounding transformation of the international legal landscape as the international community has created a series of courts and tribunals to prosecute those accused of genocide, war crimes, and crimes against humanity. As a consequence of this international institution building, prosecutions are currently underway for crimes committed across the globe: in the former Yugoslavia, Bosnia, Sierra Leone, the Democratic Republic of the Congo, and Cambodia, among other places. These international criminal tribunals and particularly the first modern tribunal- the International Criminal Tribunal for the former Yugoslavia (ICTY)-have undergone two significant evolutions. One of these …

Miranda’S Hidden Right, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

When the Court in Miranda v. Arizona applied the Fifth Amendment “right to remain silent” to the stationhouse, it also created an inherent contradiction that has bedeviled Miranda cases since. That is, the Court in Miranda said that a suspect can waive her right to remain silent but also that she must invoke it. Numerous courts have repeated this incantation, including most recently last summer in Berghuis v. Thompkins. But how can both be true about the same right? Either the suspect has the right and can waive it or does not yet enjoy it and must therefore invoke it. …

Can The Ceo Learn From The Condemned? The Application Of Capital Mitigation Strategies To White Collar Cases, Todd Haugh

All Faculty Scholarship

Ted Kaczynski and Bernie Madoff share much in common. Both are well-educated, extremely intelligent, charismatic figures. Both rose to the height of their chosen professions—mathematics and finance. And both will die in federal prison, Kaczynski for committing a twenty-year mail-bombing spree that killed three people and seriously injured dozens more, and Madoff for committing the largest Ponzi scheme in history, bilking thousands of people out of almost $65 billion. But that last similarity—Kaczynski’s and Madoff’s plight at sentencing—may not have had to be. While Kaczynski’s attorneys tirelessly investigated and argued every aspect of their client’s personal history, mental state, motivations, …

Juror Privacy In The Sixth Amendment Balance, Melanie D. Wilson

Scholarly Articles

Some eight million citizens report for jury duty every year. Arguably, jury duty is one of the most significant opportunities to participate in the democratic process. For the accused, the jury acts as an indispensable safeguard against government overreaching. One might expect, therefore, that our justice system would treat potential jurors with care and tact. The opposite is true. During voir dire, prospective jurors are required to share insights into their own lives, quirks, proclivities, and beliefs. Litigants have probed jurors’ sexual orientation, criminal histories, criminal victimization, health, family relations, and beyond. A few scholars have chided the system for …

G Forces: Gideon V. Wainwright And Matthew Adler's Move Beyond Cost-Benefit Analysis, Janet Moore

Faculty Articles and Other Publications

With the approach of the fiftieth anniversary of Gideon v. Wainwright, Matthew Adler's continuous prioritarian social welfare economic theory provides an interesting new resource for advocates of public defense reform. Adler argues for a moral decision-making procedure in large-scale policy settings that prioritizes the interests of the less well-off. This essay identifies some key steps in Adler's analysis, highlights several avenues for critique and further development of his arguments, and begins to explore the doctrinal development of the right to counsel as an instantiation of his inequality-averse approach to moral decision-making.

Berghuis V. Thompkins: Retreat From Miranda, Jacquline Grossi

Barry Law Review

No abstract provided.

Veterans Court: Towards The Implementation Of A Collaborative Justice Model In San Luis Obispo County, Daniel Smee

Continuing Education (CAPSTONE)

Veterans’ treatment courts represent an emerging trend across the country of collaborative justice designed to deal with criminal justice issues stemming from problems linked to military service. This approach places the veteran in VA (Veterans Affairs) treatment programs as a diversion from incarceration. There are few such courts in California (nine) largely in non-rural counties. This study investigated two rural counties, Tulare and Santa Barbara with Veterans courts to develop a model for such a court in San Luis Obispo County. Early recidivism data at the one-year point for Tulare County showed a zero percent rate of criminal behavior (12 …

Requiring The State To Justify Supermax Confinement For Mentally Iii Prisoners: A Disability Discrimination Approach, Brittany Glidden, Laura L. Rovner

Sturm College of Law: Faculty Scholarship

The Eighth Amendment has long served as the traditional legal vehicle for challenging prison conditions, including long-term isolation or “supermax” confinement. As described by Hafemeister and George in their article, The Ninth Circle of Hell: An Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary Confinement on Inmates with a Mental Illness, some prisoners with mental illness have prevailed in Eighth Amendment challenges to prolonged isolation. Yet an equal or greater number of these claims have been unsuccessful. This Essay considers why some of these cases fail, and suggests that one reason is that Eighth Amendment jurisprudence does not contain a …

Preferring Order To Justice, Laura L. Rovner, Jeanne Theoharis

Sturm College of Law: Faculty Scholarship

In the decade since 9/11, much has been written about the “War on Terror” and the lack of justice for people detained at Guantanamo or subjected to rendition and torture in CIA black sites. A central focus of the critique is the unreviewability of Executive branch action toward those detained and tried in military commissions. In those critiques, the federal courts are regularly celebrated for their due process and other rights protections. Yet in the past ten years, there has been little scrutiny of the hundreds of terrorism cases tried in the Article III courts and the state of the …

Democracy And Criminal Discovery Reform After Connick And Garcetti, Janet Moore

Faculty Articles and Other Publications

A leading cause of wrongful conviction and wasteful litigation in criminal cases is the nondisclosure of information beneficial to the defense by prosecutors and law enforcement as required by Brady v. Maryland. In Connick v. Thompson and Garcetti v. Ceballos, the Supreme Court weakened Brady’s enforceability by limiting the deterrent force of 42 U.S.C § 1983 liability. Connick highlights Garcetti’s implications as a criminal discovery case, which scholars have not fully analyzed. While Connick restricted § 1983 liability when prosecutors confess to suppressing exculpatory evidence, Garcetti restricted liability when prosecutors are disciplined for bringing Brady evidence to light. …

Pain, Love, And Voice: The Role Of Domestic Violence Victims In Sentencing, Hadar Dancig-Rosenberg, Dana Pugach

Michigan Journal of Gender & Law

Criminal law systems throughout the world have evolved to a stage where they no longer ask, "What is the appropriate role of the victim in a criminal trial?" The questions now relate to the scope of the victim's rights, in which procedures she has independent standing, and at what stage she should be heard. The process of the "prosecution stepping into the victim's shoes," whereby the state controls the entire criminal process, seemingly on behalf of the victim, has been replaced by the recognition that the interests of the prosecution (the State) are not always consistent with those of the …

Professionalism And Advocacy At Trial – Real Jurors Speak In Detail About The Performance Of Their Advocates, Mitchell J. Frank, Osvaldo F. Morera

Faculty Scholarship

No abstract provided.

Justice And Efficiency: An Empirical Study On Simplified Procedure For Guilty Plea Cases, Bensen Li

Maurer Theses and Dissertations

This study explores the simplified procedure for guilty plea cases emerged in the context of the rise of crime in China. It examines the effect of the simplified procedure and the relevance of the concept of guilty plea in practice, seeking to answer the questions such as: how efficient was it in process durations in the simplified procedure? Is there any difference for guilty plea cases in sentencing between simplified procedure and regular procedure cases? What is the core problem in considerations and relationship between justice and efficiency in the simplified procedure?

To answer these questions, the empirical study is …

Redinocente: The Challenge Of Bringing Innocence Work To Latin America, Justin Brooks

Faculty Scholarship

No abstract provided.

No Justice In Utah's Justice Courts: Constitutional Issues, Systemic Problems, And The Failure To Protect Defendants In Utah's Infamous Local Courts, Samuel P. Newton

Articles

No abstract provided.

Protecting Tax Payers And Crime Victims: The Case For Restricting Utah's Preliminary Hearings To Felony Offenses, Paul G. Cassell, Thomas E. Goodwin

Utah OnLaw: The Utah Law Review Online Supplement

Requiring preliminary hearings for Class A misdemeanors is undesirable for two simple reasons. First, the court’s decision will result in hundreds of additional preliminary hearings a year, thus imposing substantial costs on taxpayers and burdens on an already overwhelmed criminal justice system. Second, the decision will create substantial hardships for crime victims, who will now be twice subjected to cross-examination by defense attorneys—once at the preliminary hearing and again later at trial. And these costs will generate no significant benefit in return.

Driving A Hard Bargain: Accepting Responsibility For A Significant Curtailment Of Federal Prosecutorial Discretion In United States V. Divens, Rory A. Eaton

Villanova Law Review (1956 - )

No abstract provided.

Nothing Is Not Enough: Fix The Absurd Post-Booker Federal Sentencing System, Frank O. Bowman Iii

Faculty Publications

This article is an elaboration of testimony I gave in February 2012 at a U.S. Sentencing Commission hearing considering whether the advisory guidelines system created by the Supreme Court’s 2005 decision in United States v. Booker should be modified or replaced. I argue that it should.

Post-Racialism And Searches Incident To Arrest, Frank Rudy Cooper

Scholarly Works

For 28 years the Court held that an officer's search incident to arrest powers automatically extended to the entire passenger compartment of a vehicle. In 2009, however, the Arizona v. Gant decision held that officers do not get to search a vehicle incident to arrest unless they satisfy (1) the Chimel v. California Court's requirement that the suspect has access to weapons or evanescent evidence therein or (2) the United States v. Rabinowitz Court's requirement that the officer reasonably believe evidence of the crime of arrest will be found therein. While many scholars read Gant as a triumph for civil …

A Fresh Cut In An Old Wound–A Critical Analysis Of The Trayvon Martin Killing: The Public Outcry, The Prosecutors’ Discretion, And The Stand Your Ground Law, Tamara F. Lawson

Articles

If the Trayvon Martin/George Zimmerman case is to have value beyond its immediate facts, it is important to consider the case through a broad lens that encompasses law, politics, and culture and the relevant intersectionality of each. This essay gives a contextualized historical perspective with which to view the Black community’s reaction to the initial lack of criminal charges in the case. It explains why the circumstances surrounding Trayvon’s death were experienced as a fresh cut in an old, but deep, collective wound, for many Blacks. It addresses the exacerbation African Americans felt regarding law enforcement’s perceived indifference towards Trayvon, …

New Law, Old Cases, Fair Outcomes: Why The Illinois Supreme Court Must Overrule People V Flowers, 43 Loy. U. Chi. L.J. 727 (2012), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

No abstract provided.

Who Said The Crawford Revolution Would Be Easy?, Richard D. Friedman

Articles

One of the central protections of our system of criminal justice is the right of the accused in all criminal prosecutions "to be confronted with the witnesses against him." It provides assurance that prosecution witnesses will give their testimony in the way demanded for centuries by Anglo-American courts-in the presence of the accused, subject to cross-examination- rather than in any other way. Witnesses may not, for example, testify by speaking privately to governmental agents in a police station or in their living rooms. Since shortly after it was adopted, however, the confrontation right became obscured by the ascendance of a …

Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman

Articles

Crawford v. Washington radically transformed the doctrine governing the Confrontation Clause of the Sixth Amendment to the Constitution. Before Crawford, a prosecutor could introduce against an accused evidence of a hearsay statement, even one made in contemplation that it would be used in prosecution, so long as the statement fit within a "firmly rooted" hearsay exception or the court otherwise determined that the statement was sufficiently reliable to warrant admissibility. Crawford recognized that the Clause is a procedural guarantee, governing the manner in which prosecution witnesses give their testimony. Therefore, a prosecutor may not introduce a statement that is testimonial …

On The American Paradox Of Laissez Faire And Mass Incarceration, Bernard E. Harcourt

Faculty Scholarship

In The Illusion of Free Markets (Harvard 2011), Professor Bernard Harcourt analyzes the evolution of a distinctly American paradox: in the country that has done the most to promote the idea of a hands-off government, we run the single largest prison complex in the entire world. Harcourt traces this paradox back to the eighteenth century and demonstrates how the presumption of government incompetence in economic affairs has been coupled with that of government legitimacy in the realm of policing and punishing. Harcourt shows how these linked presumptions have fueled the expansion of the carceral sphere in the nineteenth and twentieth …

Frye And Lafler: No Big Deal, Gerard E. Lynch

Faculty Scholarship

The only surprise about the Supreme Court’s recent decisions in Missouri v. Frye and Lafler v. Cooper is that there were four dissents. The decisions are straightforward recognitions that the defendants in those cases received unquestionably derelict representation, to their considerable prejudice. The decisions do not represent a novelty in the law, but rather continue the longstanding recognition by the courts that “plea bargaining” is an integral part of our criminal justice system – indeed, I have argued at length that it is our criminal justice system – and that minimal competence of defense lawyers in dealing with that process …

When Does Restitution Become Retribution?, Melanie M. Reid, Curtis L. Collier

Oklahoma Law Review

No abstract provided.