Digital Commons Network^™

The Right To Silence V. The Fifth Amendment, Tracey Maclin

Faculty Scholarship

This paper concerns a well-known, but badly misunderstood, constitutional right. The Fifth Amendment to the Constitution guarantees, inter alia, that no person “shall be compelled in any criminal case to be a witness against himself.” For the non-lawyer, the Fifth Amendment protects an individual’s right to silence. Many Americans believe that the Constitution protects their right to remain silent when questioned by police officers or governmental officials. Three rulings from the Supreme Court over the past twelve years, Chavez v. Martinez (2003), Berghuis v. Thomkpins (2010) and Salinas v. Texas (2013), however, demonstrate that the “right to remain silent” that …

Further Thoughts On Race, American Law, And The State Of Nature: Advancing The Multiracial Paradigm Shift And Seeking Patterns In The Area Of Race And Law, George A. Martinez

Faculty Journal Articles and Book Chapters

In his article, the author seeks to use philosophical theory - state of nature theory - as a way to understand American law and issues of race. This project, consistent with a recent trend in legal scholarship, seeks to uncover hidden meanings in law through historical analysis, cultural critique, or philosophical contemplation.

The author argues that there is a tendency for the dominant group to relate to racial minorities as if they were in the state of nature - i.e., a tendency to act as if they were in a situation without legal or moral constraints. The article examines this …

Sexual Assault As A Law Of War Violation & U.S. Service-Members’ Duty To Report, Chris Jenks, Jay Morse

Faculty Journal Articles and Book Chapters

This Essay considers when U.S. service members deployed to Afghanistan are obligated to report allegations of sexual assault by Afghan security forces against Afghan nationals to the U.S. military. The answer requires applying a longstanding Department of Defense policy for reporting law of war violations and hinges on whether there is a nexus between the sexual assault and the armed conflict in Afghanistan. Although recent attention on this topic has brought much-needed visibility to sexual assault in conflict zones, the overbroad assertions of the media and the military have unfortunately fostered more confusion than clarity. This Essay does not attempt …

A Rose By Any Other Name: How The United States Charges Its Service Members For Violating The Laws Of War, Chris Jenks

Faculty Journal Articles and Book Chapters

This chapter examines the US practice of not charging its service members with war crimes. The chapter briefly explains how the United States asserts criminal jurisdiction over its service members before turning to how the US military reports violations of the laws of war. It then sets out the US methodology for charging such violations as applied to its service members, and compares this methodology to that applied to those tried by military commissions. The chapter then discusses the varied meanings of the term ‘war crimes’ and the way in which the 1949 Geneva Conventions can provide a benchmark against …

Peer Review: Navigating Uncertainty In The United States Jury System, Anna Offit

Faculty Journal Articles and Book Chapters

This Article examines American prosecutors’ approaches to uncertainty during voir dire. At different points during trial preparation— and during jury selection itself—lawyers draw on multiple interpretive systems to make sense of ordinary citizens. Taking Assistant United States Attorneys in a federal jurisdiction in the Northeast United States as a case study, and drawing on ethnographic research, I focus on three systems prosecutors alternately (and sometimes simultaneously) use to evaluate jurors: (1) probabilistic and evaluative analogies, (2) juror-types generated from the details of criminal cases, and (3) local knowledge stemming from prosecutors’ relationships and experiences outside of the courtroom. I show …

Confrontation As A Rule Of Production, Pamela R. Metzger

Faculty Journal Articles and Book Chapters

The Confrontation Clause is cost blind; the Supreme Court is not. In 2004, in Crawford v. Washington, the Supreme Court trumpeted its commitment to a procedural Confrontation Clause that required the prosecution to produce its witnesses in court, regardless of the cost or inconvenience. In 2007, in Melendez-Diaz v. Massachusetts, the Court retreated, offering courts, legislatures, and prosecutors an easy way to avoid Confrontation-laden trials. On the one hand, the Court warned that legislatures and courts could not “suspend the Confrontation Clause,” even if there were “other ways — and in some cases better ways — to challenge or verify” …

Criminal Laws On Sex Work And Hiv Transmission: Mapping The Laws, Considering The Consequence, Sienna Baskin, Aziza Ahmed, Anna Forbes

Faculty Scholarship

Lawmakers historically justify the mobilization of criminal laws on prostitution and HIV as a means of controlling the spread of disease. Over time, however, public health research has conclusively demonstrated that criminal laws on prostitution and HIV significantly impede the ability of sex workers to access services and to live without the stigma and blame associated with being a transmitter of HIV. In turn, mainstream public health approaches to sex work and HIV emphasize decriminalization as a way to improve the lives of sex workers in need of care, treatment, and services. Our current legal system, which criminalizes both prostitution …

Reducing Wasteful Incarcerations, Christopher Robertson, Jamie Cox Robertson

Faculty Scholarship

Prisons are essential to a safe and civil society. Prisons are also costly for the taxpayers whose government houses, feeds, medicates, and supervises millions of people underlock and key.This expense is compounded by errors in the u.S. legal system that produces both false guilty verdicts and overly harsh penalties. It’stime forthe united States to take a closer look at these unnecessary incarcerations. By working to release prisoners who don’t belong in prison, we can lower the costs of the prison system—not to mention restore freedom to people who are wrongly being deprived of it. unfortunately, it is difficult to identify …

Reply To Miriam Baer And Michael Doucette’S Reviews Of Two Models Of Pre-Plea Discovery In Criminal Cases, Jenia I. Turner, Allison D. Redlich

Faculty Journal Articles and Book Chapters

No abstract provided.

Very Like A Whale: Analogy And The Law, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

Analogical reasoning is common in legal writing, just as analogies are a part of everyday life. Indeed, they may be inescapable features of human cognition. Used well, analogies illuminate the writer’s reasons and persuade the reader. Used poorly, however, they may obscure or even replace the precision and detail in reasoning that is crucial to the development of law. Without entering the ongoing debate about the nature of human thought, this article explores some of the dangers present in the relationship that analogy maintains with law. In particular, the article examines the risks inherent in analogizing across a technological or …

Voices On Innocence, Lucian E. Dervan, Richard A. Leo, Meghan J. Ryan, Valena Elizabeth Beety, Gregory M. Gilchrist, William W. Berry

Faculty Journal Articles and Book Chapters

In the summer of 2015, experts gathered from around the country to sit together and discuss one of the most pressing and important issues facing the American criminal justice system – innocence. Innocence is an issue that pervades various areas of research and influences numerous topics of discussion. What does innocence mean, particularly in a system that differentiates between innocence and acquittal at sentencing? What is the impact of innocence during plea bargaining? How should we respond to growing numbers of exonerations? What forces lead to the incarceration of innocents? Has an innocent person been put to death and, if …

Taking Dignity Seriously: Excavating The Backdrop Of The Eighth Amendment, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The U.S. punishment system is in turmoil. We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions. Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented. The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess. The Court has been consistent in stating that a focus on …

Miranda'S Truth: The Importance Of Adversarial Testing And Dignity In Confession Law, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The landmark decision of Miranda v. Arizona focuses on the important values of adversarial testing and human dignity. These values can be found among a constellation of values ordinarily aligned with constitutional criminal procedure cases like Miranda. The constellation also includes values such as truth-finding and equality. With the regularization of DNA analysis and the realization that a large number of innocent people have been convicted, however, there has been a recent fixation on truth-finding. Other values have been overshadowed. The myopic pursuit of truth-finding may be somewhat misguided, as certainty of truth is generally impossible. This is recognized by …

Evidence Laundering In A Post-Herring World, Kay L. Levine, Jenia I. Turner, Ronald F. Wright

Faculty Journal Articles and Book Chapters

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. When courts admit the evidence based on the good faith of the second officer, the original constitutional taint disappears in the wash.

In the years since Herring was decided, courts have allowed evidence laundering in a …

Plea Bargaining And Disclosure In Germany And The United States: Comparative Lessons, Jenia I. Turner

Faculty Journal Articles and Book Chapters

This article analyzes recent trends in plea bargaining and disclosure of evidence in Germany and the United States. Over the last two decades, a number of U.S. jurisdictions have adopted rules requiring broader and earlier discovery in criminal cases. This development reflects a growing consensus that, in a system that resolves most of its cases through guilty pleas, early and extensive disclosure is necessary to ensure fair and informed outcomes.

The introduction of broader discovery in criminal cases in the United States aligns our rules more closely with German rules on access to the investigative file. At the same time, …

Two Models Of Pre-Plea Discovery In Criminal Cases: An Empirical Comparison, Jenia I. Turner, Allison D. Redlich

Faculty Journal Articles and Book Chapters

Our criminal justice system resolves most of its cases through plea bargains. Yet the U.S. Supreme Court has not required that any evidence, even exculpatory or impeachment evidence, be provided to the defense before a guilty plea. As a result, state rules on pre-plea discovery differ widely. While some jurisdictions follow an “open-file” model, imposing relatively broad discovery obligations on prosecutors early in the criminal process, others follow a more restrictive, “closed-file” model and allow the prosecution to avoid production of critical evidence either entirely or until very near the time of trial. Though the advantages and disadvantages of both …

A Meta-Architecture Analysis For A Coevolved System-Of-Systems, George Anthony Muller Iv

Masters Theses

"Modern engineered systems are becoming increasingly complex. This is driven in part by an increase in the use of systems-of-systems and network-centric concepts to improve system performance. The growth of systems-of-systems allows stakeholders to achieve improved performance, but also presents new challenges due to increased complexity. These challenges include managing the integration of asynchronously developed systems and assessing SoS performance in uncertain environments.

Many modern systems-of-systems must adapt to operating environment changes to maintain or improve performance. Coevolution is the result of the system and the environment adapting to changes in each other to obtain a performance advantage. The complexity …

A Phenomenological Study: Foster Care Youth Aging Out Of The System, Guy Thompson

Theses and Dissertations

The purpose of this applied dissertation was to explore the lived experiences of teens aging out of foster care, in an effort to better understand their needs. While the child welfare system is geared towards family preservation, reunification, and adoption, most young adults transitioning from the foster care system are not reunited with family members or are only reunited as a last resort. Unfortunately, every year, thousands are leaving the support of the foster care system, unprepared. Youth departing the child welfare system are not gradually transitioned into becoming self-sufficient. They do not have an effective support system available if …

Exploration Of The Transition And Retention Experiences Of Military In-Residence Secondary Boarding School Alumni At 4-Year Universities, Robert E. Hayhurst

Theses and Dissertations

Researchers have suggested that the number of adults holding advanced academic degrees across the population in the United States is falling behind those within the developed nations. Student retention is critical to U.S. colleges and universities’ retention. Retention of in-residence military high school graduates after they enter college is the research problem upon which this study was focused. Understanding the distinct perspective of in-residence military high school graduates can contribute to the improvement of persistence and retention programs for traditional college students; however, a search of the literature revealed an incomplete and unbalanced body of empirical research about this unique …

2016-2017 Student Handbook, Nova Southeastern University

NSU Student Handbooks

No abstract provided.

Professional Identity Of Student Conduct Administrators, Brian M. Glick

Graduate Research Theses & Dissertations

The functions of a Student Conduct Administrator (SCA) have existed on college campuses since the first institutions of higher education were established. Colleges and universities now employ specialized staff members to fulfill this role. The fundamentals of the position have changed only minimally over the years, but these responsibilities continue to become more complex. The question to be answered is whether or not the practice of student conduct administration constitutes a profession. If student conduct administration qualifies as a profession, SCAs hold a specific professional identity. This project provides the results of a national survey of SCAs who described how …

Adding Mental Health To The Treatment Of Mental Illness : A Qualitative Content Analysis Of The Construction Of Recovery In Psychiatric Journals, 1990-2016, Amy Ann Armstrong

Graduate Research Theses & Dissertations

During the past two and a half decades, recovery has come to dominate mental health policy and the discourse surrounding mental illness. In this thesis, I analyze how recovery from severe mental illness has been constructed within psychiatric journals between 1990 and 2016. I use data-driven qualitative content analysis to describe the discussion of recovery in articles published in the psychiatric journals Psychiatric Services, Psychiatric Rehabilitation Journal, the American Journal of Psychiatry and JAMA Psychiatry since 1990. This discussion centers on four main themes: the meaning of recovery, treatment methods used to promote recovery, the role of service providers in …

Why Does Mindfulness Reduce Aggression? : Exploring The Role Of Response Inhibition, Kristen Thompson

Graduate Research Theses & Dissertations

Mindfulness-based interventions are increasingly being used to reduce aggressive behavior; however, the mechanisms through which increases in mindfulness are associated with reductions in aggression are not well understood. Based on research suggesting that mindfulness-induced alterations to inhibitory control might be a potential mechanism for this effect, the present study evaluated whether a single, brief mindfulness induction would have immediate, state-based effects on aggressive behavior and whether, if present, such effects would be partially explained by mindfulness-induced changes to inhibitory control. A focused-breathing exercise was used to induce mindfulness in a sample of aggressive, mindfulness-naive, male undergraduates, whose performances on the …

The Effect Of #Blacklivesmatter : The Relevance Of Communities And Collective Identity, Stephanie D. Jones

Graduate Research Theses & Dissertations

In this paper I analyze the impact that the social movement #BlackLivesMatter (#BLM) has on how communities frame the issue of police brutality within protests. Protests that occurred before the #BLM movement focused on policing issues only within their own communities, while the protests that occurred after #BLM make connections from local cases to a national problem. I examine YouTube videos of protesting the police after incidents of police brutality for three different cases. The first case is the murder of Oscar Grant in Oakland, California, which was before the #BLM movement emerged. The second case was the choking of …

Examining K-8 Teachers' Perceptions Of Mandated Curriculum Change, Sarah Marie Cacciatore

Graduate Research Theses & Dissertations

The purpose of this mixed-method study was to examine elementary teacher perceptions of mandated curriculum change. In the spring and fall of 2015, Illinois elementary school teachers in a north suburban school district participated in a focus group, an online survey, and follow-up interviews to gather data about teachers' perceptions of the mandated curriculum change process in implementing the Common Core State Standards in English language arts and mathematics. The study also sought to find any differences between the perceptions of teachers in kindergarten through fifth grade classrooms and those who taught in sixth- through eighth-grade classrooms. This study was …

Incarceration Incentives In The Decarceration Era, Avlana K. Eisenberg

Vanderbilt Law Review

After forty years of skyrocketing incarceration rates, there are signs that a new "decarceration era" may be dawning; the prison population has leveled off and even slightly declined. Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration have empowered interest groups that contributed to the expansion of the prison industry and are now invested in its continued growth. These groups, which include public correctional officers and private prison management, resist decarceration-era policies, and they remain a substantial obstacle to reform. This Article scrutinizes the incentives of these industry stakeholders …

Hist 340: American Legal History—A Peer Review Of Teaching Project Inquiry Portfolio, Katrina Jagodinsky

UNL Faculty Course Portfolios

This inquiry portfolio measures the success of revisions made to HIST 340: American Legal History after a previous benchmark portfolio revealed a number of problems in communicating to students the importance and meaning of the course objectives, in correlating assessments to the final grade, and in documenting student learning and quality of instruction. The findings, outlined below, indicate that identifying a clear course theme; more strongly aligning readings, assessments, and discussions to course objectives; and restructuring the verbal and written analysis of readings dramatically improved students’ performance and satisfaction. Measures used include formal and informal student evaluations of instruction, formal …

Federal Statutory Responsibility And The Mental Health Crisis Among American Indians, Abilene Slaton

American Indian Law Review

No abstract provided.

Environmental Racism And The Movement For Black Lives: Grassroots Power In The 21st Century, Rickie Cleere

Pomona Senior Theses

This thesis explores the ways in which the environmental justice movement, which is in opposition to environmental racism, and the Black Lives Matter movement, which is in opposition to police brutality and other forms of racism, are part of the same struggle: a struggle against the neoliberal violence of the state. This struggle against neoliberal violence is at the same time a struggle for communities of color to achieve self-determination on a global scale, a monumental task which might be informed through a revolutionary intercommunalist framework of global grassroots solidarity. State oppression embodies violence in more forms that one, including …

Re-Thinking The Intentionality Of Fraud: Constructing And Testing The Theory Of Unintended Amoral Behavior To Explain Fraudulent Financial Reporting, Andrew Dill

Electronic Theses and Dissertations

My three-paper dissertation is aimed at applying the concepts of bounded ethicality and ethical fading to accounting fraud. Typical of relatively new fields such as behavioral ethics, theoretical models are scarce (Tenbrunsel & Smith-Crowe, 2008). As such, the purpose of Study 1 is to unify disparate theories and ideas from psychology and behavioral ethics as a means of constructing a theory, the Theory of Unintended Amoral Behavior (TUAB), which includes the concepts of bounded ethicality and ethical fading. In addition, the pressure for management to meet earnings expectations is discussed through the lens of the TUAB as an example of …