Digital Commons Network^™

Foreword: Is Justice Just Us?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This is a review of JUSTICE, LIABILITY AND BLAME, by Paul Robinson and John Darley. The book is a summary of 18 studies which surveyed lay subjects about their attitudes toward various aspects of criminal law doctrine, including the act requirement for attempt, omission liability, accomplice liability, the felony-murder role, and the intoxication and insanity defenses. In virtually every study, the authors found that the subjects disagreed with the Model Penal Code's position, the common law's position, or both. The authors contend that results of surveys such as theirs should play a significant role in designing criminal doctrine, both because …

The Criminal Defense Lawyer's Fiduciary Duty To Clients With Mental Disability, Christopher Slobogin, Amy Mashburn

Vanderbilt Law School Faculty Publications

This Article has argued that the defense attorney has a multifaceted fiduciary duty toward the client with mental disability. That duty requires, first and foremost, respect for the autonomy of the client. The lawyer shows that respect not only by heeding the wishes of the competent client but by refusing to heed the wishes of the incompetent client. A coherent approach to the competency construct is therefore important. Following the lead of Professor Bonnie, this Article has broken competency into two components: assistance competency and decisional competency. It has defined the former concept in traditional terms, as an understanding of …

The Problem Of Obtaining Evidence For International Criminal Courts, Jacob Katz Cogan

Faculty Articles and Other Publications

International criminal courts will be judged by their fairness to defendants as well as to victims. In a very practical way, such claims will hinge, inter alia, on the ability of prosecutors and defendants to have reasonable access to probative evidence. But international criminal courts depend on states to provide them with evidence or access to evidence. The obligation of states to cooperate with international criminal tribunals in the production of evidence was at issue in the recent decision of the International Criminal Tribunal for the former Yugoslavia in the Blaki case (1997). That judgment and the provisions of the …

Criminal Law—Prosecutorial Discretion Or Contract Theory Restrictions?--The Implications Of Allowing Judicial Review Of Prosecutorial Discretion Founded On Underlying Contract Principles, Justin H. Dion

Western New England Law Review

No abstract provided.

A Call For Comment: Restyling And Amending The Federal Rules Of Criminal Procedure, David A. Schlueter

Faculty Articles

In August 2000, the Judicial Conference’s Committee on Rules of Practice and Procedure published—for public comment—proposed amendments to the entire set of Federal Rules of Criminal Procedure. The proposals mark the culmination of a two-year project to “restyle” the rules—to modernize and reorganize and to make them internally consistent in format and style. Not since the rules were first promulgated in 1946 has there been such a significant change in the structure, format, and substance. This article first addresses the rule-making process for the Federal Rules of Criminal Procedure, and then examines the restyling process. Finally, it notes several of …

Vehicle Searches – The Automobile Exception: The Constitutional Ride From Carroll V. United States To Wyoming V. Houghton, Martin L. O'Connor

Touro Law Review

No abstract provided.

Legal Rites: Abjection And The Criminal Regulation Of Consensual Sex, Kate Sutherland

Articles & Book Chapters

The application of criminal law to consensual sex is an arena of conflict and contest between conservative and liberal forces in the United States, with occasional feminist interventions. The same arguments tend to recur on each side of the debate. Conservatives assert the appropriateness and necessity of enforcing a particular Judeo-Christian sexual morality through law. Liberals argue for tolerance of private consensual sexual conduct. When the debate shifts from the private to the public arena, conservatives may argue privacy principles, asserting the right of bystanders to be let alone, whereas liberals may shift to freedom of expression arguments. In this …

The Grand Jury And Exculpatory Evidence: Should The Prosecutor Be Required To Disclose Exculpatory Evidence To The Grand Jury, Ali Lombardo

Cleveland State Law Review

In 1992, the United States Supreme Court ruled in United States v. Williams that the federal courts do not have the supervisory power to require prosecutors to present exculpatory evidence to the grand jury. This Note argues that the Williams decision is flawed because it diminishes crucial rights of defendants and because it prevents the grand jury from fulfilling its protective function. In Section II, this Note examines the historical background and purpose of the grand jury in England and America. Section III discusses the Williams decision and the rationale behind both the majority and dissenting opinions. It also discusses …

The Perils Of Public Opinion, Deborah W. Denno

Hofstra Law Review

This article discusses the significance of Paul Robinson’s and John Darley’s book, Justice, Liability, and Blame: Community Views and the Criminal Law (“Justice”), and why the book is an excellent springboard for further research comparing community standards and legal codes. However, contrary to Justice’s conclusions, this article particularly emphasizes the perils of incorporating public opinion into the law based upon three major sources: (1) this article's own study of national and New Jersey demographic and political affiliation data, (2) the results presented in Justice, and (3) the results of public opinion research.

This article suggests that public opinion research may …

Framed: Utilitarianism And Punishment Of The Innocent, Guyora Binder, Nicholas J. Smith

Journal Articles

This paper is a defense of utilitarian penology, against the familiar retributivist charge that it promotes framing the innocent, and other charges similarly depending on the notion that utilitarianism encourages officials to deceive the public. Our defense proceeds from the striking fact that utilitarianism's critics do not cite textual evidence that the originators of utilitarian penology in fact endorsed punishing the innocent or deceiving the public. Instead, critics claim that these unsavory policies follow logically from the premises of utilitarianism. Our argument, in brief, is that the charge of framing the innocent rests on a misunderstanding of utilitarian penology. We …

Not Twice For The Same: How The Dual Sovereignty Doctrine Is Used To Circumvent "Non Bis In Idem", Dax E. Lopez

Vanderbilt Journal of Transnational Law

Today, it is quite possible for a criminal defendant who has violated the laws of several countries with one criminal act to be subject to multiple prosecutions. In situations where two countries share concurrent criminal jurisdiction, it is unclear whether the defendant would be able to rely on some level of double jeopardy protection. International law currently does not obligate a sovereign state to recognize another state's penal judgments, thus allowing states to prosecute a defendant regardless of any legal action that may have been previously taken against the defendant. Several countries, however, have chosen to provide defendants with at …

Transparent Adjudication And Social Science Research In Constitutional Criminal Procedure, Tracey L. Meares, Bernard Harcourt

Faculty Scholarship

The October 1999 Term was a year of consolidation in the law of police investigations in constitutional criminal procedure. In four short and compact opinions – three supported by sizeable majorities and three written by the Chief Justice – the Supreme Court synthesized and consolidated its criminal procedure jurisprudence, and offered clear guidance to law enforcement officers and private citizens alike. Miranda warnings are required by the Fifth Amendment, and the police must continue to "Mirandize" citizens before conducting any custodial interrogations. Reasonable suspicion under the Fourth Amendment calls for a totality-of-the-circumstances test, and a citizen's flight from the police …

Policing Women: Moral Arguments And The Dilemmas Of Criminalization., Naomi R. Cahn

GW Law Faculty Publications & Other Works

This essay concerns the peculiar dilemmas of criminalization for women. I explain the ways in which women are policed, ranging from the monitoring of motherhood to the criminalization of prostitution. This policing may be through the criminal law, civil law, or more subtly, through cultural attitudes that devalue women's work yet simultaneously encourage women to do that work. Hence, I argue that in order to sensitize, reform, and change the criminal justice system, it is critical to consider women's needs.

This essay also pays special attention to the impact of the criminal justice system on children. Specifically, I examine the …

A Proposal For A New Massachusetts Notoriety For Profit Law: The Grandson Of Sam, Sean J. Kealy

Faculty Scholarship

In recent years, two women stood convicted of highly publicized major crimes in Massachusetts. Katherine Ann Power ("Power") was a fugitive who committed felony-murder in 1970. She led a life on the run as a fugitive until 1993 when she revealed her true identity and surrendered to authorities to face the consequences of her crimes. Louise Woodward ("Woodward"), an au pair originally from England, gained notoriety on both sides of the Atlantic Ocean when she was convicted of killing the baby entrusted to her care. Both women captured the attention of the national media for months and reportedly had opportunities …

Criminal Law, Susannah R. Cole

South Carolina Law Review

No abstract provided.

Message To Criminal Defendants--Waive At Your Own Risk: The Eight Circuit Enforces Waivers Of Appellate Rights, The, Ginger K. Gooch

Missouri Law Review

"The right to appeal at least once without obtaining prior court approval is nearly universal. [A]lthough its origins are neither constitutional nor ancient, the right has become, in a word, sacrosanct., 2 Likewise, the criminal defendant's right to utilize appellate rights as a bargaining chip meets with widespread acceptance; nearly every circuit allows criminal defendants to waive their rights to appeal in conjunction with plea bargain agreements.3 The circuits disagree, however, concerning whether a defendant's waiver of appellate rights remains valid if a district court judge fails to explicitly discuss the waiver with the defendant during a Rule 11 colloquy4 …

The Scottish Criminal Jury: A Very Peculiar Institution, Peter Duff

Law and Contemporary Problems

Duff describes and discusses the Scottish criminal jury. While the exact origins of the Scottish criminal jury are obscure, it is clear that it developed in tandem with, although in a different fashion from, its English counterpart.

The American Criminal Jury, Nancy Jean King

Law and Contemporary Problems

King describes the American criminal jury, focusing on those aspects of the institution that distinguish it from juries in other parts of the world.

Criminal Trial Juries In Australia: From Penal Colonies To A Federal Democracy, Michael Chesterman

Law and Contemporary Problems

The recent history of juries in Australia reveals an interesting clash between the endeavours of state and territory governments to reduce the costs associated with jury trial by various means and the determination of the High Court of Australia to reassert the traditional values and features of jury trial.

The New Zealand Jury, Neil Cameron, Susan Potter, Warren Young

Law and Contemporary Problems

In New Zealand, the recent history of the jury has been one of fairly steady decline. This is particularly so of the civil jury, which has become virtually extinct with little realistic prospect of revival.

The Jury System In Contemporary Ireland: In The Shadow Of A Troubled Past, John D. Jackson, Katie Quinn, Tom O'Malley

Law and Contemporary Problems

Jackson et al discuss the distinctive features of criminal trial by jury in Ireland, both north and south, to explain how the jury continues to survive within modern Ireland and how it also has managed to decline in significance.

Reviving The Criminal Jury In Japan, Lester W. Kiss

Law and Contemporary Problems

Kiss analyzes whether the readoption of criminal jury trials in present-day Japan would be feasible from cultural, societal and legal viewpoints in light of Japan's prior experience with a jury system.

A Prevention Model Of Juvenile Justice: The Promise Of Kansas V. Hendricks For Children, Christopher Slobogin, Mark R. Fondacaro, Jennifer L. Woolard

Vanderbilt Law School Faculty Publications

The traditional juvenile court, focused on rehabilitation and "childsaving," was premised primarily on a parens patriae notion of State power. " Because of juveniles' immaturity and greater treatability, this theory posited, the State could forego the substantive and procedural requirements associated with the adult system of criminal punishment. As an historical and conceptual matter, however, the parens patriae power justifies intervention only for the good of the subject, not for society as a whole. " From the outset, then, the image of the juvenile delinquency system as a manifestation of the State acting as "parent" was an implausible one. This …

Is Capital Punishment A Deterrent To Crime?, Greg Warren Colyer

Theses Digitization Project

No abstract provided.

The Most Aggravated And Least Mitigated Murders: Capital Proportionality Review In Florida, Ken Driggs

St. Thomas Law Review

In this article I will briefly discuss the evolution of death penalty law after Furman v. Georgia, including the three statutory models that nearly every death penalty state has adopted. Part of this evolution was the development of proportionality review. I will then discuss Florida's "weighing" statute and how proportionality fits into that. Then I will discuss the specifics of the Florida Supreme Court's approach to proportionality review in death penalty direct appeals. I will elaborate on how the Supreme Court has considered commonly encountered, broad factual situations in death sentences. I will briefly discuss a recent amendment to Article …

Life, Death And The Law - And Why Capital Punishment Is Legally Insupportable , Peter Fitzpatrick

Cleveland State Law Review

Given that law has an integral commitment to life, in this lecture I want to show how the law should manifest something of a fundamental dissonance, even a terminal incoherence, when law is called upon to deal death. That is what happens in the judicial discourse on the death penalty in the United States. I will approach this demonstration in a way that may at first seem paradoxical, in a way that will bring out the deep affinity between law and death. That affinity is one in which death is, in a sense, the limit of law; a limit that …

Justice For The Forgotten And Despised, David C. Leven

Touro Law Review

No abstract provided.

Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports

Faculty Scholarship

When Justice Blackmun was nominated to the Court in 1970, Americans were consumed with the idea of crime control. In the 1968 presidential campaign, Richard Nixon had called the Supreme Court "soft on crime" and had promised to "put 'law and order' judges on the Court." While sitting on the Eighth Circuit, the Justice had "seldom struck down searches, seizures, arrests or confessions," and most of his opinions in criminal cases had "affirmed guilty verdicts and sentences." Thus, according to one commentator, Justice Blackmun seemed to be "exactly what Nixon was looking for: a judge who believed in judicial restraint, …

Religion And The Public Defender, Sadiq Reza

Fordham Urban Law Journal

This essay argues that the public defender should not undertake, or fail to undertake, any action to the legal detriment of a client on the basis of a conflict the attorney perceives between religious and professional responsibility, except for imminent death or serious bodily harm to another. Having accepted the responsibility of representing indigent criminal defendants, the public defender is duty-bound to not compromise that responsibility for competing religious obligations. This argument rests on four premises: (1) the public defender occupies a unique position in our legal system, and options available to private interest lawyers or other clients should not …

Human Rights And Human Wrongs: Is The United States Death Penalty System Inconsistent With International Human Rights Law, Warren Allmand, Stephen B. Bright, Rubin "Hurricane" Carter, Dorean Marguerite Koenig, William A. Schabas, W. L. Seriti

Fordham Law Review

No abstract provided.