Digital Commons Network^™

Confidentiality And Claims Of Ineffective Assistance, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

This column discusses what a defense lawyer should do when called upon to reveal client information in response to an ineffective assistance of counsel claim.

Investigative Deceit, Kevin C. Mcmunigal

Faculty Publications

Is it ever ethical for a lawyer to ask or assist another person to lie on behalf of a client? Despite ethical rules categorically banning both personal and vicarious deceit, prosecutors routinely supervise police officers and informants who use deceit in investigating drug and sex offenses, organized crime, and terrorism. May defense lawyers make use of investigative deceit in criminal investigations? In this Essay, the Author examines this issue, the ethical rules bearing on it, and the recent trend in a number of jurisdictions allowing the use of investigative deceit by the defense. Drawing on his participation in a series …

The Problems Of Plagiarism As An Ethics Offense, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

This column questions the practices of labeling attorney copying, even without acknowledgement, as plagiarism, and treating it as a per se ethics violation. Instead, the column argues that analysis of copying in the litigation context should focus directly on the quality of the filing at issue and the competence and diligence of the lawyer who prepared it.

Contingent Rewards For Prosecutors?, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

This column explores whether contingent reward plans for prosecutors are ethical. After weighing arguments in favor and against such plans, the column concludes that rewards for prosecutors contingent on trial convictions are unsound.

A Discourse On The Aba's Criminal Justice Standards: Prosecution And Defense Functions: The Physical Evidence Dilemma: Does Aba Standard 4-4.6 Offer Appropriate Guidance?, Rodney J. Uphoff

Faculty Publications

Since 1966, when criminal defense lawyer Richard Ryder was disciplined for retaining physical evidence that connected his client to a bank robbery, lawyers and courts have struggled with the ethical dilemma of how defense lawyers should deal with physical evidence that potentially incriminates one of their clients. When a lawyer takes possession of an evidentiary item, must she always turn it over to the authorities, as required by most courts that have addressed this dilemma? Or, can defense counsel return the evidence to the source from whom counsel received it as recommended by Standard 4-4.6 of the ABA Criminal Justice …

In Memoriam: James A. Inciardi, Professor Of Sociology & Criminal Justice And Director Of The Center For Drug & Alcohol Studies At The University Of Delaware, Wendee Wechsberg, Duane C. Mcbride, Hilary Surratt

Faculty Publications

No abstract provided.

Santa Clara Law 1911-2010: Centennial Faculty Bibliography, Mary D. Hood

Faculty Publications

Faculty scholarship represents the intellectual life of a law school. To feature our faculty‟s scholarly efforts, the reference staff at Heafey Law Library maintains a database of the published scholarship of full-time faculty and other academic staff currently in residence at Santa Clara Law. This database consists of all publications of faculty through their tenure at Santa Clara. As the law school began to make plans to celebrate its centennial birthday it seemed appropriate for the law library to contribute to the occasion. What more fitting way to mark this historic milestone than to have the library staff create a …

Normative Elements Of Parole Risk, W. David Ball

Faculty Publications

Parole boards evaluate the public safety risk posed by parole-eligible prisoners to determine whether they should be released. In this Essay, I argue that this process, at least as it operates in California, is fundamentally flawed because it asks the wrong question. Rather than ask whether an inmate poses any public safety risk, parole board officials should instead ask whether this risk is worth taking.

One way to answer this question would be to make our calculations more inclusive of all the costs and benefits of release and comparing them with the costs and benefits of retention. Elementary as this …

Enrolling And Engaging High-Risk Youths And Families In Community-Based, Brief Intervention Services, Richard Dembo, Laura M. Gulledge, Rhissa Briones-Robinson, Ken C. Winters

Faculty Publications

Increasing interest has been shown in brief interventions for troubled persons, including those with substance abuse problems. Most of the published literature on this topic has focused on adults, and on the efficacy of these interventions. Few of these studies have examined the critical issues of enrollment and engagement in brief intervention services. The present article seeks to address the shortcomings in the current literature by reporting on our experiences implementing National Institute on Drug Abuse (NIDA)-funded brief intervention projects involving truant and diversion program youths.

The “Asian” Category In Mcas Achievement Gap Tracking: Time For A Change, Philip Lee

Faculty Publications

(Excerpt)

Data gathered on Asian American students in public school by the Massachusetts Department of Elementary and Secondary Education is aggregated into one general “Asian” category, which may skew the results, both perpetuating an enduring myth and masking any true gaps that may exist for certain Asian American subgroups. As explored in this article, achievement gap tracking for the Massachusetts Comprehensive Assessment System (MCAS) is an apt example.

Communicating Substance, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Now that the Federal Sentencing Guidelines are advisory, the U.S. Sentencing Commission has more responsibility than ever to convince sentencing judges of the legitimacy of the Guidelines’ advice. During their mandatory period, the Guidelines enjoyed a captive set of followers—district judges who had limited choices for departing from the applicable Guidelines ranges, even when those judges were unhappy with the sentencing options before them. However, given the freedom that comes with the Guidelines’ current advisory form, sentencing judges are increasingly departing from the applicable Guidelines ranges. Although district judges still are required to calculate and consider the Sentencing Guidelines …

Assessing The African Union Concerns About Article 16 Of The Rome State Of The International Criminal Court, Charles Chernor Jalloh, Dapo Akande, Max Du Plessis

Faculty Publications

This article assesses the African Union’s (AU) concerns about Article 16 of the Rome Statute of the International Criminal Court (ICC). It seeks to articulate a clearer picture of the law and politics of deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC, or the Council) to invoke Article 16 to suspend the processes initiated by the ICC against President Omar Al Bashir of Sudan. The UNSC’s failure to accede to the AU request led African States to formally withhold cooperation from the ICC in respect to the arrest and surrender of the …

An Overview Of The Capital Jury Project For Military Practitioners: Aggravation, Mitigation, And Admission Defenses, Eric R. Carpenter

Faculty Publications

No abstract provided.

Facilitating Crimes: An Inquiry Into The Selective Invocation Of Offenses Within The Continuum Of Criminal Procedures, Kyle Graham

Faculty Publications

Conventional wisdom holds that all crimes run a gauntlet of procedures that begins with an investigation and arrest, leads to charging and arraignment, and culminates (at least in successful prosecutions) with a conviction and the application of punishment. The reality is more nuanced. As this article's empirical study of the invocation and utilization of specific crimes contained within the United States Code indicates, there exist “detention crimes,” “charging crimes,” and “pleading crimes,” three types of offenses that, as applied, tend to implicate only portions of this sequence.

This article examines the three categories of “facilitating crimes” and the benefits and …

Special Court For Sierra Leone: Achieving Justice?, Charles Chernor Jalloh

Faculty Publications

The Sierra Leone war, which lasted between 1991 and 2002, gained notoriety around the world for “blood" or "conflict" diamonds and some of the worst atrocities ever perpetrated against civilians in a modern conflict. On January 16, 2002, the United Nations and the Government of Sierra Leone signed an historic agreement to establish the Special Court for Sierra Leone (SCSL). In setting up a new type of ad hoc criminal tribunal, the parties sought to achieve two key objectives. First, to dispense credible justice by enabling the prosecution of those bearing greatest responsibility for the wartime atrocities based on international …

Evidence (Routledge Handbook Of International Criminal Law), Nancy Amoury Combs

Faculty Publications

No abstract provided.

Cooperative Federalism And Police Reform: Using Congressional Spending Power To Promote Police Accountability, Kami Chavis Simmons

Faculty Publications

Police misconduct and corruption persist in our nation's local police departments. Recognizing the organizational roots of police misconduct, Congress granted the U.S. Department of Justice (the "DOJ") the authority to seek injunctive relief to implement institutional reforms within local law enforcement agencies. While the federal government's current strategy represents a promising model for reform, the DOJ's efforts cannot reach many local police departments that require intervention. Furthermore, the local primacy of criminal-justice issues, particularly issues related to police practices, implicates important federalism concerns. Although federal intervention is appropriate to address persistent patterns of misconduct, states and local entities must play …

"Fact-Finding Without Facts": A Conversation With Nancy Combs, Nancy Amoury Combs

Faculty Publications

No abstract provided.

Ethical Guidance For A Grander Jury, Anna Offit

Faculty Publications

Section I of this Note explores the extent to which the American Bar Association (ABA) Practice Guide, and similar major ethical conventions and advisory opinions, present competing interpretations of the grand jury's role in the criminal justice system. The lack of prosecutorial disclosure of exculpatory evidence, grand jury secrecy, and the abundance of plea negotiations demonstrate how historicized visions of the grand jury are appropriated to serve distinct conceptions of the institution's proper role. Section II offers a historical narrative of the grand jury that places grand jurors' "local knowledge" and experience at the heart of an inherently interpretive and …

Deciding When To Decide: How Appellate Procedure Distributes The Costs Of Legal Change, Aaron-Andrew P. Bruhl

Faculty Publications

Legal change is a fact of life, and the need to deal with it has spawned a number of complicated bodies of doctrine. Some aspects of the problem of legal change have been studied extensively, such as doctrines concerning the retroactivity of new law and the question whether inferior courts can anticipatorily overrule a moribund superior court precedent. How such questions are answered affects the size and the distribution of the costs of legal change. Less appreciated is the way that heretofore almost invisible matters of appellate procedure and case handling also allocate the costs of legal transitions. In particular, …

Towards An Understanding Of Litigation As Expression: Lessons From Guantánamo, Kathryn A. Sabbeth

Faculty Publications

No abstract provided.

Book Review Of Fact Finding Without Facts: The Uncertain Evidentiary Foundations Of International Criminal Convictions, Linda A. Malone

Faculty Publications

No abstract provided.

Judging Aggression, Noah Weisbord

Faculty Publications

One of the most polarizing debates in international law is how the goal of peace should figure into the work of international criminal tribunals. The freshly minted crime of aggression lands the judges of the International Criminal Court in the middle of the peace versus justice dilemma and will challenge the court to prove its value for advancing peace in appropriate circumstances while building the rule of law and maintaining its legitimacy.

This article, the final installment in the author's trilogy on the crime of aggression, explores the gaps, ambiguities and contradictions woven into the definition of the crime and …

International Decision, International Criminal Court, Decision On The Authorization Of An Investigation Into The Situation In The Republic Of Kenya, Charles Chernor Jalloh

Faculty Publications

On March 31, 2010, in its first ever decision authorizing a prosecutorial proprio motu investigation, the Pre-Trial Chamber of the International Criminal Court (ICC) granted the ICC Prosecutor permission to investigate the shocking violence which followed Kenya’s December 2007 Presidential elections under Article 15 of the Rome Statute of the International Criminal Court. The majority of the Chamber ruled that both the contextual and underlying requirements of crimes against humanity had been fulfilled, including that they were committed as part of a state or organizational policy as required by Article7(2)(a) of the Rome Statute. According to the majority, the latter …

The United States And The International Criminal Court Post-Bush: A Beautiful Courtship But An Unlikely Marriage, Megan A. Fairlie

Faculty Publications

The article focuses on the relationship status between the U.S. and the International Criminal Court (ICC) from being dormant due to being renewed. The renewal was evident from the U.S. representation at the 2009 ICC's Assembly of States Parties annual meeting and the 2010 ICC Review Conference. Using the Rome Statute, the ICC has been granted subject matter jurisdiction over war crimes, crimes against humanity and genocide.

The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants, Adam M. Gershowitz, Laura R. Killinger

Faculty Publications

No abstract provided.

The Reason Behind The Rules: From Description To Normativity In International Criminal Procedure, Noah Weisbord

Faculty Publications

As the International Criminal Court (ICC) continues to mature in its practices, it provokes discussion on whether the comfortable framework of adversarial and inquisitorial systems should be used to evaluate an institution that exists in a fundamentally different context from that of national criminal justice systems. In order to avoid entangling the ICC in rules that are not tailored to fit its specific goals and institutional context, the normative purposes underlying procedural rules derived from domestic institutions should be reexamined.

This article draws out basic principles that may be of use in reexamining the reasoning behind the rules of procedure …

Religiosity, Self-Control, And Antisocial Behavior: Religiosity As A Promotive And Protective Factor, Robert D. Laird, Loren D. Marks, Matthew D. Marrero

Faculty Publications

Three hypotheses with the potential to provide information on the role of religiosity as a promotive and protective factor in early adolescence were tested. Adolescents (N = 166, M age = 13 years, 49% female, 49% European American, 45% African American) and mothers reported their own personal importance of religion and the frequency of their attendance of religious services. Greater mother importance and attendance was associated with greater adolescent importance and attendance. Mother importance was indirectly linked to adolescent antisocial behavior through adolescent importance. Less adolescent importance and attendance were associated with low self-control and low self-control was associated …

Progressive Constitutionalism, Originalism, And The Significance Of Landmark Decisions In Evaluating Constitutional Theory, William P. Marshall

Faculty Publications

No abstract provided.

Criminal Justice Information Sharing: A Legal Primer For Criminal Practitioners In California, W. David Ball, Robert Weisberg

Faculty Publications

California criminal justice agencies need access to data in order to provide security, health care treatment, and appropriate programming, as well as to coordinate these activities with other agencies. By the same token, outside agencies—whether criminal, social service, or non-governmental—could often do their jobs more effectively with access to information generated or retained within particular criminal justice agencies. Criminal justice realignment under AB 109 has only heightened the need for inter-agency data sharing and cooperation, yet there continue to be misunderstandings about the legal framework surrounding information exchange.

This Article aims to provide a basic, practical background on the legal …