Digital Commons Network^™

Battered Women And Self-Defense: Myths And Misconceptions In Current Reform Proposals, Holly Maguigan

Faculty Articles

A widespread perception exists that contemporary criminal law doctrine cannot accommodate the self-defense claims of battered women who kill abusive men. That perception dominates not only the media, but also current reform discussions both in scholarly literature and in many state legislatures. In response to the dominant belief that traditional self-defense doctrine is inapplicable to these cases, proposals for radical redefinition of various elements of self-defense jurisprudence have been advanced. This Article demonstrates that the belief is wrong and that proposed redefinitions of legal rules will provide neither the necessary nor the sufficient condition for changing the courtroom climate in …

The Twentieth Annual Kenneth J. Hodson Lecture: Military Justice For The 1990'S - A Legal System Looking For Respect, David A. Schlueter

Faculty Articles

The Kenneth J. Hodson Chair of Criminal Law was established at The Judge Advocate General’s School on June 24, 1971. The chair was named after Major General Hodson, who served as The Judge Advocate General from 1967 to 1971. General Hodson retired in 1971, but immediately was recalled to active duty to serve as the Chief Judge of the Army Court of Military Review. He served in that position until 1974. General Hodson served over thirty years on active duty. During that time, he was active in the American and Federal Bar Associations, and he authored much of the military …

Military Justice For The 1990’S: A Legal System Looking For Respect, David A. Schlueter

Faculty Articles

Noting that the American military justice system is often the subject of criticism and derision, the author explores the criticisms often leveled at the military justice system and targets a number of areas where the system seems most vulnerable, such as size and composition of the courts-martial, the role of the commander in the system and offers suggestions for reform.

Re-Imagining Childhood And Reconstructing The Legal Order: The Case For Abolishing The Juvenile Court, Janet Ainsworth

Faculty Articles

Although the institution of the juvenile court developed rather recently in our legal system, it is now quite firmly established: every American state and nearly every industrialized nation has a juvenile court system in place. The juvenile court is not without its critics, however. In this Article, Professor Janet Ainsworth recommends its complete abolition. Professor Ainsworth contends that society's current view of the nature of adolescence no longer comports with the turn-of-the century view that originally informed the development of an autonomous juvenile court, thus undermining the ideological legitimacy of a separate court system for juveniles. In addition, Professor Ainsworth …

Why The Criminal Justice System Can't Control Crime, Gerald S. Reamey

Faculty Articles

No abstract provided.

Time Changes: Growing Complexity In Texas Sentencing Law, John M. Schmolesky

Faculty Articles

The Seventieth Legislature made criminal sentencing guidelines more onerous, but a number of factors combined to undercut its impact. These changes made the relationships between the legislative, judicial, and administrative components of the criminal justice system become increasingly complex, often resulting in one agency undercutting the decisions of another. Because of the complex web of agencies that have a role in determining the disposition of a convicted defendant, changes in the rules of sentencing must be analyzed at several different levels to determine their true impact.

Despite the apparently more punitive thrust of the new legislation, no clear policy direction …

Trial And Appellate Criminal Procedure, John M. Schmolesky

Faculty Articles

Recent state and federal decisions significantly influenced Texas criminal procedure at both the trial and appellate levels. These decisions generally affected three main areas of the punishment stage of Texas criminal trials. First, they defined the scope of evidence admissible at the punishment stage. Second, they addressed procedural and substantive questions concerning the special punishment issue of use or exhibition of a deadly weapon. Third, they raised substantial questions about the constitutionality of the death penalty as applied by Texas courts.

Texas courts also faced numerous challenges in the aftermath of several important state and federal constitutional decisions. These decisions …

Justice Brennan, Judge Bork And A Jurisprudence Of Original Values, Harry F. Tepker

Faculty Articles

No abstract provided.

Navigating The Shoals Of ‘Use’ Immunity And Secret International Enterprises In Major Congressional Investigations: Lessons Of The Iran-Contra Affair, George Van Cleve, Charles Tiefer

Faculty Articles

In its Iran-Contra investigation, Congress faced legal challenges which evolved logically from the two-century long history of Congressional investigations, and yet at the same time were unmatched in their significance. One challenge concerned "use" immunity, and its employment when high advisers to the President faced parallel Congressional and criminal proceedings. A second concerned the investigation of a secret international "Enterprise," which, like similar enterprises, was established overseas to carry on international operations without public accountability, and was protected by multiple layers of secrecy sanctioned by law. This article addresses how history brought Congress to those challenges, and how Congress met …

Law As Microaggression, Peggy C. Davis

Faculty Articles

Drawing on the work of psychiatrist Chester Pierce, Professor Davis defines the concept of microaggression and analyzes the effects of microaggressions in legal settings.

Sexual Harassment Cases And The Law Of Evidence: A Proposed Rule, Catherine O'Neill

Faculty Articles

Federal Rule of Evidence 412 eliminates from the jury's consideration during a criminal rape trial evidence of the victim's past sexual experiences in all but a few narrowly drawn circumstances. In enacting Rule 412, Congress' primary purpose was to spare victims of rape the degrading and unwarranted intrusions into intimate details of their private lives that had formerly been common practice in the federal courts. Part I of this comment discusses the background, structure and rationale of Federal Rule of Evidence 412. Part II argues that the justifications for the enactment of Rule 412 in the context of rape also …

Investigative Detentions For Purposes Of Fingerprinting, David A. Schlueter

Faculty Articles

This article focuses on constitutional issues associated with fingerprinting suspects in investigative detention. Following a series of barracks larcenies, Naval Investigative Service (NIS) investigators fingerprinted approximately 100 servicemembers. All those ordered to report to the NIS office for fingerprinting had been present in the unit at the time of the offenses, and among those was the accused, who was later linked to the crime through his fingerprints. Before the accused reported to the NIS office there was no probable cause or reasonable suspicion to believe that he was in any way involved in the crimes. Were the fingerprints admissible?

United …

The Skeleton In The Closet: The Battered Woman Syndrome, Self Defense, And Expert Testimony, Victoria M. Mather

Faculty Articles

The criminal justice system must deal fairly, through the use of expert testimony, with the battered woman who strikes back at her abuser with deadly results. Society-at-large does not understand the battered woman, the batterer, and their relationship; historically, the criminal justice system’s response to the predicament of the battered woman has been ineffective.

The use of expert testimony in homicide cases where an allegedly battered wife kills her abuser and then claims self-defense is a controversial proposition. The evidence, however, shows that women are frequently the victims of abuse, that patterns of behavior associated with battering relationships usually exist, …

When Soldiers Are Defendants, David A. Schlueter

Faculty Articles

In O’Callahan v. Parker, the U.S. Supreme Court adopted a “service connection” requirement for court-martial subject matter jurisdiction. For almost two decades that requirement caused numerous problems of interpretation and application. In Solorio v. United States, the Court overruled its decision in O’Callahan. While assigned to a Coast Guard unit in Juneau, Alaska, the accused committed numerous acts of sexual abuse against two minor daughters of other Coast Guard members. The crimes were not discovered, however, until after he had been transferred to Governors Island, New York, where he committed additional acts of sexual abuse on other daughters of Coast …

The Future Of Liberal Legal Scholarship, David Skover, Ronald Collins

Faculty Articles

Earl Warren is dead. A generation of liberal legal scholars continues, nevertheless, to act as if the man and his Court preside over the present. While this romanticism is understandable, it exacts a high price in a world transformed. The following commentary is a reconstructive criticism written from the perspective of two liberals concerned about the future of "legal liberalism." The author’s present their views as a commentary to emphasize their preliminary character; they represent thier current assessment of where liberals stand and where they might redirect their energies. In Part I, they outline the reasons for believing that there …

Reconstituting 'Original Intent:' A Constitutional Law Encyclopedia For The Next Century, David Skover

Faculty Articles

In this article Professor Skover reviews the Encyclopedia of the American Constitution. The Encyclopedia describes, in a fairly balanced and accurate manner, the contemporary understanding of the American constitutional heritage. The Encyclopedia exhibits the important functions that an encyclopedic work may serve in the legal culture of the twenty-first century. This review essay explores this thought. Part I describes the Encyclopedia's organizational structure, the interdisciplinary nature of its commentaries, and the divergent characters of its contributors. Part II considers the potential for its use and explores its role as the record of "original intent" for this century's constitutional "founders."

The Parent-Child Privilege: A Response To Calls For Adoption, David A. Schlueter

Faculty Articles

A popular move to recognize and codify a parent-child privilege has surfaced, despite rejection by a majority of the courts that have considered the issue. Reminded of the horrors accompanying totalitarian systems that require children to testify against their parents, some commentators have asserted that adoption of such a privilege will promote the success of the family relationship in this country and avoid the trauma of family members testifying against each other at trial.

The momentum for adopting a parent-child privilege seems to have been generated by a few courts and a number of commentators who see the privilege as …

The Fifth Amendment At Justice: A Reply, Stephen J. Schulhofer

Faculty Articles

Mr. Markman's response to "Reconsidering Miranda" misses the article's central point, which was to offer a theory of fifth amendment compulsion and to consider the legitimacy of Miranda within the framework of that theory. Mr. Markman has no theory, and he makes no effort to explain why mild pressures and small financial penalties sometimes constitute compulsion. He invites us to treat police interrogation as a category unto itself and to hold permissible some pressures that would be found compelling outside the custodial setting. He declines even to consider whether his less protective notion of compulsion is justified by differences in …

Reconsidering Miranda, Stephen J. Schulhofer

Faculty Articles

Few decisions of the Warren Court have attracted as much attention and controversy as its 1966 ruling in Miranda v. Arizona. Miranda relied upon the fifth amendment privilege against compulsory self-incrimination to impose limits on custodial police interrogation. The Court was vilified for "handcuffing the police" and for "favoring the criminal forces over the peace forces." Recently Miranda has become the focus of renewed debate. The Department of Justice, in a 120-page report endorsed by Attorney General Edwin Meese III, attacks the Miranda decision as an illegitimate act of judicial policy-making that the Court should now overrule. It is not …

Do We Need A Parent-Child Privilege, David A. Schlueter

Faculty Articles

This article addresses proposals to adopt a parent-child privilege, and notes that currently incriminating statements made between parents and children are admissible as evidence. However, there is a popular move to urge codification of a parent-child privilege that would protect any statements made or actions observed within the parent-child relationship. Evidentiary privileges are generally disfavored because they potentially block otherwise relevant evidence, but some relationships, such as the parent-child relationship, deserve assurance that shared confidences will be protected.

To overcome the reluctance to adopt yet another privilege, proponents of the parent-child privilege typically offer a number of justifications. These include …

Counsel For The Accused: Metamorphosis In Spanish Constitutional Rights, Henry Mcgee

Faculty Articles

The article begins with a discussion of the social and political background that influenced the emergence of the constitutionally guaranteed right to counsel in Spanish law. Next, it traces the constitutional development and legislative refinements of the right to counsel. It then considers judicial refinements of that right. The article concludes with a comparison of the Spanish process of articulating the right to counsel with the parallel process in the United States and what such differences bode for U.S. scholars.

Dictatorship On Trial: Prosecution Of Human Rights Violations In Argentina, Emilio Fermin Mignone, Cynthia Estlund, Samuel Issacharoff

Faculty Articles

Between 1976 and 1983, a military dictatorship ruled Argentina and brought that country into an era of state-directed terror aimed at the civilian population. During that period, a small and vulnerable human rights community, allied with international backers, attempted to stay the hand of the military state and provide a measure of protection for the victims and potential victims of the dictatorship. The struggle was to defend the most elementary of human rights: freedom from arbitrary detention, torture, and summary execution. While the stakes in this struggle were high-life or death for thousands of individuals-it was nonetheless an unfortunately familiar …

A Theory Of Equal Protection, David A. Dittfurth

Faculty Articles

Equal protection must prohibit arbitrary governmental classifications or differentiation. The Supreme Court is a unique authority because of its power to create constitutional law and because of its symbolic position in this society as a bearer of the Constitution as aegis. The Fourteenth Amendment, which is derived from the Equal Protection Clause, is one of the most important areas of constitutional law.

Governmental decisionmakers must consider equal protection doctrine since they are frequently required to discriminate among those arguably qualified in order to determine who should bear the burden of governmental action or receive the benefits of governmental largess. A …

Legal Remedial Alternatives For Spouse Abuse In Texas, Gerald S. Reamey

Faculty Articles

There are numerous civil and criminal legal alternatives available in Texas for dealing with abuse between adult cohabitants. Current and proposed systems may protect victims more effectively and deter abusers, and empirical studies can reveal the direction legal systems should take to pinpoint the flaws and shortcomings in present legal responses to abuse.

The difficulty of assessing the extent of spousal abuse increases the difficulty of finding an effective legal remedy. Abuse, like rape, is far less likely to be reported than other crimes. In addition, spousal abuse is hard to define in any meaningful statistical manner because of the …

Court-Martial Jurisdiction: An Expansion Of The Least Possible Power, David A. Schlueter

Faculty Articles

This article examines the statutory and judicial developments that have apparently expanded military jurisdiction. Serving as the core for this discussion is the amendment to Article 2, UCMJ, and the Court of Military Appeals’ decision in United States v. Trottier, 9 M.J. 337 (C.M.A. 1980), dealing with subject matter jurisdiction of courts-martial over drug-related offenses by service members.

A Synopsis Of The Federal Juvenile Delinquency Act, William S. Sessions, Faye M. Bracey

Faculty Articles

The Juvenile Justice and Delinquency Prevention Act of 1974 (Act) was passed by the United States Congress on September 7, 1974. The Act amended the Federal Juvenile Delinquency Act (FJDA) which had been virtually unchanged since its enactment in 1938. The Act sets up a procedural framework for the treatment of minors who are within the jurisdictional reach of a federal court due to the commission of an act which contradicts a federal criminal statute.

With a thorough understanding of the original FJDA and its amendments, benefits, required procedures, and a juvenile’s constitutional rights, counsel for a juvenile offender in …

County Court Of Ulster County V. Allen And Sandstorm V. Montana: The Supreme Court Lends An Ear But Turns Its Face, John M. Schmolesky

Faculty Articles

Because criminal verdicts provide no clue as to how the jury reached its decision, jury instructions are crucial indicators of how a deductive device operates. Deductive devices are mechanisms that allow or require the fact-finder to assume the existence of a fact when proof of other facts are shown. Any deductive device, whether permissive or mandatory, has pernicious possibilities that imperil the rationality of fact-finding. The controlling method of review for deductive devices in criminal cases simply require a rational connection between the basic fact and the presumed fact. However, the Supreme Court in Allen broke new ground in exempting …

Due Process Of Sentencing, Stephen J. Schulhofer

Faculty Articles

The aspiration for consistency in criminal sentencing decisions is nearly universal. But the complexities of criminal justice administration are likely to defeat most current efforts to see this aspiration fulfilled. This Article explores the principal difficulties and develops a proposal that can bring the goal within reach. My purpose is to suggest the range of procedures necessary to ensure the effectiveness of a concrete reform proposal and then to consider whether a sentencing system so elaborated would indeed serve the values that ordinarily make consistency and formal procedural fairness worthy of pursuit.

The Younger Abstention: Primary State Jurisdiction Over Law Enforcement, David A. Dittfurth

Faculty Articles

The abstention doctrines have received much attention by the United States Supreme Court over the last decade. These doctrines are represented by judicial rules that require federal trial courts, in appropriate circumstances, to abstain from exercising subject matter jurisdiction although they clearly have the power to do so. As a result, the particular case is shunted back into a state judicial system for determination.

The most confusing of these doctrines is the one arising in major part from Younger v. Harris. In short, this case stands for the rule that, once a state criminal prosecution has been initiated, a federal …

Plea Bargaining: The Experiences Of Prosecutors, Judges, And Defense Attorneys, James E. Bond

Faculty Articles

James E. Bond reviews Heuman’s Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense Attorneys.