Law Commons^™

Admissibility Of Co-Conspirator Statements In A Post-Crawford World, Michael L. Seigel, Daniel Weisman

Michael L Seigel

This Article takes the position that co-conspirator statements must be examined on a case-by-case basis to determine whether they are testimonial and thus subject to exclusion under the Confrontation Clause. Further, in light of the fact that the author of the majority opinions in Crawford and Davis was Justice Antonin Scalia, this Article examines whether interpreting the Sixth Amendment as a bar to the admission of certain coconspirator statements would violate an originalist interpretation of that provision. The conclusion reached is that it would not. In the current era of ever-narrowing rights for criminal defendants, reaffirming the law's commitment to …

County Court, Westchester County, People V. Gant, Albert V. Messina Jr.

Touro Law Review

No abstract provided.

Supreme Court, Kings County, People V. Chapman, Kerri Grzymala

Touro Law Review

No abstract provided.

Appellate Division, First Department, People V. Bradley, Kathleen Egan

Touro Law Review

No abstract provided.

Criminal Law And Procedure, Aaron J. Campbell

University of Richmond Law Review

This article aims to provide a succinct review of noteworthy cases in the areas of criminal law and procedure that the Supreme Court of Virginia and the Court of Appeals of Virginia decided this past year. Instead of covering every ruling or procedural point in a particular case, this article focuses on the "take- away" of the holdings with the most precedential value. This article also summarizes significant changes to criminal law and procedure enacted by the 2014 Virginia General Assembly.

Section 6: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Gay Panic And The Case For Gay Shield Laws, Kelly Strader, Molly Selvin, Lindsey Hay

Kelly Strader

In a highly publicized “gay panic” case, Brandon McInerney shot and killed Larry King in their middle school classroom. King was a self-identified gay student who sometimes wore jewelry and makeup to school and, according to those who knew him, was possibly transgender. Tried as an adult for first-degree murder, McInerney asserted a heat of passion defense based upon King’s alleged sexual advances. The jury deadlocked, with a majority accepting McInerney’s defense. Drawing largely upon qualitative empirical research, this article uses the Larry King murder case as a prism though which to view the doctrinal, theoretical, and policy bases of …

Teaching “The Wire”: Crime, Evidence, And Kids, Andrea L. Dennis

Scholarly Works

I have a confession: I have only watched Season 1 of The Wire, and it has been many years since I did that. Thus, both my knowledge and pedagogical use of the show are limited. What explanation can I offer for my failings? I am a Maryland native with family who resides in Baltimore City, or Charm City as it is affectionately called. I worked for several years as an assistant federal public defender in Baltimore City. Over time, I have seen the city evolve, and I have seen it chew up and spit out many good people and some …

Government Denial Under Oath – Hidta, Hemisphere And Parallel Construction, Robert Sanger

Robert M. Sanger

In September of last year, the New York Times reported on a remarkable program of the United States Government that involved spying on domestic phone records without a warrant.1 The news had a limited independent impact as it seemed to be lost in the disclosures of Michael Snowden regarding the National Security Administration (NSA), which purportedly was aimed at foreign terrorists but also included domestic targets. Yet, this program, called “Hemisphere,” was authorized by the Office of the President of the United States, Office of Drug Control Policy, under the High Intensity Drug Trafficking Area Program (HIDTA) and it primarily …

Dna Helps Clear Man's Name From Rape Charge After 24 Years, Colin Starger

All Faculty Scholarship

No abstract provided.

Shredded Fish,, Robert Sanger

Robert M. Sanger

There are just too many criminal laws and their proliferation has expanded exponentially over the last few decades. This is overcriminalization. In addition, the jurisdiction of federal authorities under general or vague laws has vastly expanded federal criminal prosecution of people and organizations for what otherwise would not be a crime. This is overfederalization and overcriminalization. In this article we will look at the current litigation before the United States Supreme Court that had directly taken on this controversy. The case of Yates v. United States involves briefing by the parties and by amici curae directly invoking and defending the …

Supreme Court, Bronx County, People V. Buari, Matthew Moisan

Touro Law Review

No abstract provided.

Court Of Appeals Of New York, People V. Moore, Gennaro Savastano

Touro Law Review

No abstract provided.

"To Corral And Control The Ghetto": Stop, Frisk, And The Geography Of Freedom, Anders Walker

University of Richmond Law Review

While criminal law scholar Michelle Alexander has shown that stop and frisks often serve as the gateway into the criminal justice system for young men of color, she occludes the complex forces that led to their rise." This article seeks to identify those forces, relating the rise of stop and frisk rules to liberal politics, Cold War concerns, and spatial dynamics. To illustrate, this article will proceed in three parts. Part I will demonstrate how Mapp v. Ohio coincided with judicial frustration at police intrusions into private, intimate space-including private thought-precisely at a time when the United States sought to …

Discretion Abused: Reinterpreting The Appellate Standard Of Review For Hearsay, Matthew J. Peterson

Matthew J. Peterson

Matthew J. Peterson, Discretion Abused: Reinterpreting the Appellate Standard of Review for Hearsay

Abstract:

The decision by a federal a court to exclude or admit hearsay can be crucial to the case of either party. Despite this prospective impact, the federal courts of appeal currently defer to district courts’ expertise by reviewing a district court’s decision to admit or exclude hearsay for an abuse of discretion. Such deference often insulates district courts’ incorrect interpretation of the rule against hearsay and the improper application of the exclusions and exceptions to the rule from appellate reversal.

Lowering the standard of review for …

Catalogs, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a …

Rationality, Insanity, And The Insanity Defense: Reflections On The Limits Of Reason, Theodore Y. Blumoff

Theodore Y. Blumoff

Individuals who suffer from chronic paranoid ideations live with deeply embedded conspiratorial delusions that are sometimes accompanied by unwanted visual and/or auditory stimuli, sometime neither: just psychotic delusions in which they feel as if they have lost control of their lives – and of course they have, albeit not from the performances of foreign forces. When those perceived forces persevere for even a fairly short period of time, they can dictate the performance of evil deeds that the individual ultimately feels helpless to oppose. What observations and findings from neuroscience make clear is that such individuals do not lack knowledge, …

Finding The Foregone Conclusions Of Encryption, Timothy A. Wiseman

Timothy A Wiseman

Encryption is commonly used to protect private information, for both legitimate and illegitimate reasons. Courts have been struggling to determine when, within the bounds of the Fourth and Fifth Amendments, the Courts may compel a defendant in a criminal case to decrypt their data.

This article argues that a broad use of the Forgone Conclusion doctrine would permit the Courts to order a defendant to decrypt their data when the prosecution can show with reasonable particularity the existence and location of the encrypted documents, that they are likely to be incriminating, and that the government can authenticate them without the …

The Privilege Against Self-Incrimination In Bankruptcy And The Plight Of The Debtor, Timothy R. Tarvin

Timothy R Tarvin

Back To The Future: The Constitution Requires Reasonableness And Particularity—Introducing The “Seize But Don’T Search” Doctrine, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Issuing one-hundred or fewer opinions per year, the United States Supreme Court cannot keep pace with opinions that match technological advancement. As a result, in Riley v. California and United States v. Wurie, the Court needs to announce a broader principle that protects privacy in the digital age. That principle, what we call “seize but don’t search,” recognizes that the constitutional touchstone for all searches is reasonableness.

When do present-day circumstances—the evolution in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years …

The Exclusion Of Improperly Obtained Evidence At The International Criminal Court: A Principled Approach To Interpreting Article 69(7) Of The Rome Statute, Michael Madden

LLM Theses

This thesis examines article 69(7) of the Rome Statute, which creates an exclusionary rule for improperly obtained evidence at the International Criminal Court (ICC). Ultimately, the thesis proposes how the ICC should interpret its exclusionary rule. The thesis discusses the theory underlying exclusionary rules, the evidence law and remedial law contexts within which exclusionary rules operate, and numerous comparative examples of exclusionary doctrine from within national criminal justice systems. Finally, some unique aspects of international criminal procedure are described in order to demonstrate how an international exclusionary rule might need to differ from a domestic rule, and previous jurisprudence relating …

The Hidden Daubert Factor: How Judges Use Error Rates In Assessing Scientific Evidence, John B. Meixner Jr., Shari Seidman Diamond

Scholarly Works

In Daubert v. Merrell Dow Pharmaceuticals, the United States Supreme Court provided a framework under which trial judges must assess the evidentiary reliability of scientific evidence whose admissibility is challenged. One factor of the Daubert test, the “known or potential rate of error” of the expert’s method, has received considerably less scholarly attention than the other factors, and past empirical study has indicated that judges have a difficult time understanding the factor and use it less frequently in their analyses as compared to other factors. In this paper, we examine one possible interpretation of the “known or potential rate of …

Law And Neuroscience: Recommendations Submitted To The President's Bioethics Commission, Owen D. Jones, Richard J. Bonnie, B. J. Casey, Andre Davis, David L. Faigman, Morris Hoffman, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth Scott, Laurence Steinberg, Kim Taylor-Thompson, Anthony Wagner, Gideon Yaffe

All Faculty Scholarship

President Obama charged the Presidential Commission for the Study of Bioethical Issues to identify a set of core ethical standards in the neuroscience domain, including the appropriate use of neuroscience in the criminal-justice system. The Commission, in turn, called for comments and recommendations. The MacArthur Foundation Research Network on Law and Neuroscience submitted a consensus statement, published here, containing 16 specific recommendations. These are organized within three main themes: 1) what steps should be taken to enhance the capacity of the criminal justice system to make sound decisions regarding the admissibility and weight of neuroscientific evidence?; 2) to what extent …

Law And Neuroscience: Recommendations Submitted To The President's Bioethics Commission, Owen D. Jones, Richard J. Bonnie, Bj Casey, Andre Davis, David L. Faigman, Morris B. Hoffman, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Anthony Wagner, Gideon Yaffe

Faculty Scholarship

It has become increasingly clear that implications for criminal justice – both negative and positive – emerge from the rapid, important, and challenging developments in cognitive neuroscience, the study of how the brain thinks. Two examples will illustrate.

First, lawyers are ever more frequently bringing neuroscientific evidence into the courtroom, often in the forms of testimony about, and graphic images of, human brains. This trend has produced many new challenges for judges as they attempt to provide fair rulings on the admissibility of such technical evidence, consider its proper interpretation, and assess whether the probative value of such testimony may …

A Scientific Approach To Scientific Evidence: A Four-Stage Rule For Admissibility And Scope, Robert Sanger

Robert M. Sanger

Scientific or expert testimony is often critical in criminal cases. The Supreme Court has established that the trial judge is the "gatekeeper" who is to determine what evidence is allowed before the jury. The current rules of evidence are not organized in a way that makes this task readily intelligible. This chapter proposes a more direct our-step process to accomplish the gatekeeping function.

Brady Reconstructed: An Overdue Expansion Of Rights And Remedies, Leonard Sosnov

Leonard N Sosnov

Over fifty years ago, the Supreme Court held in Brady v Maryland, 373 U.S. 83 (1963), that the Due Process Clause requires prosecutors to disclose materially favorable evidence to the defense. The Brady Court emphasized the need to treat all defendants fairly and to provide each accused with a meaningful opportunity to present a defense. While Brady held great promise for defendants to receive fundamentally fair access to evidence, the subsequent decisions of the Court have fallen short of meeting this promise.

Since Brady, the Court has limited the disclosure obligation by failing to separately determine rights and remedies. Additionally, …