Law Commons^™

Correcting Injustice: Studying How The United Kingdom And The United States Review Claims Of Innocence, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

This article examines the U.K. and U.S. systems to determine what lessons, if any, the United States can learn from the United Kingdom's experience. Part I provides a background of the CCRC and the U.K. Court of Appeal, and describes how these two entities work in tandem with broad powers to investigate and correct miscarriages of justice in the United Kingdom. Part II takes an in-depth look at the Court of Appeal's decisions of CCRC referred cases and identifies five categories into which these decisions fall-- categories that exemplify the institutional mechanisms that facilitate review of miscarriages of justice. These …

The "Fetal Protection" Wars: Why America Has Made The Wrong Choice In Addressing Maternal Substance Abuse - A Comparative Legal Analysis, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Why Is It A Crime To Stomp On A Goldfish? Harm, Victimhood And The Structure Of Anti-Cruelty Offenses, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

In the article it is argued that, contrary to what prominent animal law scholars such as Gary Francione claim, we have decided to criminalize harm to animals primarily because we are concerned about the wellbeing of such creatures, not because doing so furthers some other human interest. I do so in four parts.

Part I provides a brief historical analysis of animal cruelty laws that will show that, although many of these statutes were originally enacted as a way to protect private property, there has been a marked trend, specially in recent times, to punish animal cruelty regardless, and sometimes …

Foreword: Victims And The Criminal Justice System, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

The Most Dangerous Power Of The Prosecutor, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This is the James D. Hopkins Memorial Lecture in honor of Judge Hopkins, who was the Dean of Pace Law School from 1982 to 1983 and earlier served with great distinction on the New York Appellate Division's Second Judicial Department. Judge Hopkins served on that court when I worked in the special prosecutor's office, and as head of the appeals bureau, I argued several cases in Judge Hopkins' court. One case stands out, the case of Salvatore Nigrone v. Murtagh. It was an extensive undercover investigation. My office used informants, wiretaps, and a sham arrest to expose corrupt attempts to …

Of Persons And The Criminal Law: (Second Tier) Personhood As A Prerequisite For Victimhood, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

The trial of Michael Vick illustrates how our current criminal laws increasingly treat nonhuman creatures as "victims," with all of the consequences that this entails, including the possibility to order that restitution be paid to the animals. In light of these considerations, it is fair to say that from a purely descriptive point of view, nonhuman creatures can qualify for victimhood. This does not mean, however, that this conclusion is normatively appealing. Some have argued that this approach is profoundly misguided, given that the criminal law should only aim to safeguard the rights of humans.

Duress, Demanding Heroism And Proportionality: The Erdemovic Case And Beyond, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

This Article discusses the Erdemovic case in order toexamine whether duress should be a defense to a crime against humanity. Although the Article contends that the arguments in favor of permitting the defendant to claim duress weaken as the seriousness of the offense charged increases, the Article also argues that the duress defense should usually succeed if it can be proved that the actor could not have prevented the threatened harm by refusing to capitulate to the coercion. After balancing the competing considerations, the Author concludes that the defendant in Erdemovic should have been able to claim duress as a …

Child Pornography's Forgotten Victims, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

The goal of this paper is to demonstrate that possession of child pornography is not a victimless crime. It will illustrate the problem and explain the harm suffered by its victims. It will then trace factors that may have contributed to the perception that possession of child pornography is a victimless offense. The first factor is the dual nature of the child pornography laws that addresses both actual and future harm. When this duality is applied to possessors, their link to actual harm appears attenuated because the possessor is not involved in the acts of sexual abuse inherent in producing …

The Rise Of Spanish And Latin American Criminal Theory, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

As the contributions to this two-part special issue demonstrate, Spanish and Latin American criminal theory has attained a remarkable degree of sophistication. Regrettably, Anglo-American scholars have had limited access to this rich body of literature. With this volume, the New Criminal Law Review has taken a very important first step toward rectifying this situation.

Although the articles written for this special issue cover a vast range of subjects, they can be divided into four main categories: (i) the legitimacy of the criminal sanction, (2) the punishability of omissions, (3) the challenges that international criminal law and the fight against terrorism …

Integrating The Complexity Of Mental Disability Into The Criminal Law Course, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Is Silence Sacred? The Vulnerability Of Griffin V. California In A Terrorist World, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

Part I of this Article traces the shared history of the right against self-incrimination from twelfth-century England to the mid-twentieth century. Part II examines the modern history of the privilege in the United States, from the Supreme Court's 1965 decision in Griffin to its 1999 decision in Mitchell. Part III examines the United Kingdom's modern approach to the privilege, including its re-shaping of the privilege in response to domestic terrorism. Part IV examines why the U.S. and U.K. systems, with a common history and shared values, have moved in such dramatically different directions with respect to the privilege. Part V …

Taking Victims Seriously: A Dworkinian Theory Of Punishment, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Justice Without Politics: Prosecutorial Discretion And The International Criminal Court, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

The ICC Prosecutor's own charging policies should be prepared to give way to the judgments of legitimate political actors in times of political transition when actual arrests are more likely and competing justice proposals pose a more troubling challenge to the ICC's authority. In that scenario, I argue that the Prosecutor should encourage legitimate political actors to reach policy decisions that will command deference by the ICC. Such deference could take one or both of the following forms: (1) explicit deference to political actors, principally the U.N. Security Council acting under Chapter VII of the U.N. Charter, and (2) implied …

Normative Gaps In The Criminal Law: A Reasons Theory Of Wrongdoing, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

In this article it is argued that in two controversial homicide cases--severing conjoined twins and downing a hijacked commercial plane headed toward a heavily populated area--it is permissible to kill innocent human beings without having to establish the existence of a claim of justifcation such as self-defense or choice of evils. Even though criminal law scholars consider that unjustified conduct is always wrong, the position defended in the article is that there is a normative gap between an absence of justification and a finding of wrongdoing. This "normative gap defense," which negates wrongdoing without justifying the conduct, is the best …

The Act Requirement As A Basic Concept Of Criminal Law, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Litigating Brady V. Maryland: Games Prosecutors Play, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

By any measure, Brady v. Maryland has not lived up to its expectations. Brady's announcement of a constitutional duty on prosecutors to disclose exculpatory evidence to defendants embodies, more powerfully than any other constitutional rule, the core of the prosecutor's ethical duty to seek justice rather than victory. Nevertheless, prosecutors over the years have not accorded Brady the respect it deserves. Prosecutors have violated its principles so often that it stands more as a landmark to prosecutorial indifference and abuse than a hallmark of justice. Moreover, as interpreted by the judiciary, Brady actually invites prosecutors to bend, if not break, …

Reflections On Brady V. Maryland, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Article describes the evolution of the Brady rule over the past forty-three years. Part I sketches the origins of the rule and its doctrinal developments. Part II closely examines Brady's impact on constitutional criminal procedure. Part II suggests that Brady's essential goal has been eroded by the courts, subverted by prosecutors, and ignored by disciplinary bodies. Part III proposes that only through expanding a defendant's right to discovery can the goal of Brady be realized. The Article concludes that Brady, more than any other rule of constitutional criminal procedure, has been the most fertile and widespread …

The New "Fetal Protection": The Wrong Answer To The Crisis Of Inadequate Health Care For Women And Children, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

This article will expand upon the feminist critique by focusing on children's health as well as the health and liberty interests of their mothers. In the first part of this article, I examine the legal and cultural underpinnings of “fetal protection” and explore its current manifestations. In the second part, I place “fetal protection” in a broader context, documenting the ways in which American law currently promotes fetal life, while simultaneously neglecting the lives and health of born children. The third part of the article offers concrete recommendations about how government, both state and federal, can actually achieve the goal …

La Catástrofe De Los Delitos De Riesgo Catastrófico, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Juvenile Execution, Terrorist Extradition, And Supreme Court Discretion To Consider International Death Penalty Jurisprudence, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Contaminating The Verdict: The Problem Of Juror Misconduct, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This article describes the myriad ways in which misconduct by jurors can contaminate a trial and verdict and the ability of courts to remedy such misconduct. Part II examines the case law in which criminal defendants have challenged their convictions on the basis of juror misconduct. Defendants have claimed that jurors were influenced by external contacts with third parties, exposed to extraneous, non-evidentiary information, engaged in contrived experiments and improper reenactments in the jury room, made dishonest and misleading statements during jury selection, engaged in conduct demonstrating bias and prejudgment, suffered from physical and mental impairments, engaged in pre-deliberation discussions …

Playing Hide And Seek: How To Protect Virtual Pornographers And Actual Children On The Internet, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

This Article considers the Supreme Court's suggestion and recommends a mechanism to regulate the virtual pornography market in a manner that balances the rights of virtual pornographers with the prosecution of actual child pornographers. Part II traces the events leading up to the Free Speech decision, commencing with the enactment of the Child Pornography Prevention Act of 1996 (CPPA). Part III discusses the Free Speech opinion and the post-Free Speech cases. Part IV examines the PROTECT Act--the legislative response to the Supreme Court's decision. Part V concludes that regulation of the virtual pornography industry is the most effective method of …

How Juries Get It Wrong - Anatomy Of The Detroit Terror Case, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This Article describes the background and trial of the four defendants in the so-called Detroit “Sleeper Cell” terrorist prosecution. It examines the evidence relied on by the jury to reach its verdict, particularly the testimony of a key turncoat witness who accused the defendants of participation in a terrorist conspiracy. Part III examines how the jury's search for truth was corrupted by false, misleading, and incomplete proof. It identifies several extrinsic sources of jury error including suppressed evidence, dishonest and unreliable testimony, partisan experts, coaching, obstructed cross-examination, and inflammatory arguments. Finally, with the Detroit terrorist trial as the model, Part …

Prosecutorial Ethics And Victims' Rights: The Prosecutor's Duty Of Neutrality, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In recent years, enhanced legal protections for victims has caused victims to become increasingly involved in the criminal justice process, often working closely with prosecutors. In this Article, Professor Gershman analyzes the potential challenges to prosecutors' ethical duties that victims'participation may bring and suggests appropriate responses.

"Which One Of You Did It? Criminal Liability For "Causing Or Allowing" The Death Of A Child, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

This article analyzes how current U.S. criminal law addresses the problem of securing a homicide conviction where multiple defendants are accused in a child's non-accidental death. Part III sets forth the English response: a statute that includes (1) a new substantive crime; (2) a permissible negative inference against a defendant who fails to account for the non-accidental death of a child for whom he or she is responsible; and (3) delay of a motion to dismiss for failure to establish a prima facie case until after the defense has been presented or the jury has been allowed to draw the …

Derecho Penal, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Justice Still Fails: A Review Of Recent Efforts To Compensate Individuals Who Have Been Unjustly Convicted And Later Exonerated, Adele Bernhard

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

New Technology, Old Defenses: Internet Sting Operations And Attempt Liability, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

This article addresses the general principles of attempt liability, including a description of the doctrines of factual and legal impossibility and the rationale behind the historical treatment of these defenses. Part III describes recent Internet attempt cases, and Part IV analyzes issues raised by such cases. This article suggests that the new Internet cases provide further rationale for rejecting a distinction between factual and legal impossibility that would allow the latter to be a defense. This article also discusses issues surrounding the appropriate mens rea for attempt, and its applicability to Internet cases, where the defendants claim ignorance or indifference …

Prison Reform Revisited: The Unfinished Agenda, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

Prison Reform Revisited: The Unfinished Agenda, which was held at Pace Law School from October 16-18, 2003, was a remarkable event. At this conference--a summit really--leading academics, attorneys, prison reformers, judges, prison officials and international prison reformers gathered at Pace Law School and the New York State Judicial Center in White Plains, New York to discuss how to advance the cause of prison reform in the U.S. This issue of the Pace Law Review is devoted to the papers presented in connection with that important conference.

The Death Penalty--An Obstacle To The "War On Terrorism"?, Thomas Michael Mcdonnell

Elisabeth Haub School of Law Faculty Publications

September 11 seared our collective memory perhaps even more vividly than December 7, 1941, and has evoked a natural demand both for retribution and for measures to keep us safe. Given the existing statutory and judicial authority for capital punishment, the U.S. Government has to confront the issue whether to seek the death penalty against those who are linked to the suicide attacks or to the organization that sponsored them or both. Meting out the death penalty to international terrorists involves difficult moral, legal, and policy questions. The September 11 crimes were not only domestic crimes, but also international ones. …