Law Commons^™

Rodriguez V. State, 133 Nev. Adv. Op. 110 (Dec. 28, 2017), Natice Locke, Natice Locke

Nevada Supreme Court Summaries

The Court determined that both the inherently dangerous and the functional definitions apply to “deadly weapon,” and that the use of the functional definition does not go against the legislature’s intent in NRS 200.481.

Brown V. Eighth Judicial Dist. Ct, 133 Nev. Adv. Op. 113 (December 28, 2017, Ebeth Rocio Palafox

Nevada Supreme Court Summaries

The Court clarified the definition of an indigent person and the demonstration of need sufficient required for an indigent person’s request for defense services. The Court additionally held that Widdis v. Second Judicial Dist. Court does not require an indigent defendant to request a sum certain before the consideration or granting of a motion for defense services at public expense.

Shue V. State Of Nevada, 133 Nev. Adv. Op. 99 (Dec. 14, 2017), Margaret Higgins

Nevada Supreme Court Summaries

The Nevada Supreme Court held that (1) under NRS 200.710(2), knowingly using a minor as the subject of a sexual portrayal in a performance, the proper unit of prosecution is one conviction per each distinct minor appearing as the subject of a sexual portrayal in a performance; (2) under NRS 200.730, the “simultaneous possession at one time and place of [multiple] images depicting child pornography constituted a single violation of NRS 200.730”; (3) the statute barring the “sexual portrayals” of minors are not overbroad and do not violate the First Amendment or the Due Process Clause of the United States …

Book Review: Justice Triage, Milan Markovic

Faculty Scholarship

Benjamin Barton and Stephanos Bibas’s new book, Rebooting Justice: More Technology, Fewer Lawyers, and the Future of Law, is an eloquent exemplar of the deregulation literature. What sets Rebooting Justice apart from other works in the genre is that Barton and Bibas do not treat deregulation as a panacea. Their starting point is that Americans are not well served by lawyers’ monopoly over the legal services market, but they do not envision a world in which every legal problem is resolved ably and efficiently. Their goal is much more modest: a less complex legal system in which lawyer …

Mullner V. State, 133 Nev. Adv. Op. 98 (Dec. 7, 2017), Joseph K. Fabbi

Nevada Supreme Court Summaries

A court can use offenses committed as a juvenile, but charged and convicted as an adult, when it considers habitual criminal sentencing, especially if the offender’s past convictions are similar to the crime currently being considered for sentencing.

Doe V. State Ex Rel. Legislature Of The 77th Session, 133 Nev. Adv. Op. 93 (Dec. 7, 2017), Shady Sirsy

Nevada Supreme Court Summaries

The Nevada Supreme Court held that (1) a medical marijuana registry in Nevada does not encroach upon a medical marijuana user’s fundamental right; (2) the registry is rationally related to legitimate state interests beneficial to the public; and (3) the registry does not implicate a registrant’s right against self-incrimination.

To Catch A Predator Abroad: A Call For Greater Extraterritorial Enforcement Of Sexual Exploitation Of Children, Michelle Kfoury

Utah Law Student Scholarship

What can be done do increase extraterritorial enforcement of sexual exploitation crimes? To start, it would help if the United Nations established a convention to impose an obligation on signatory nations to adopt a criminal prohibition of sexual exploitation. In her presentation to the UN Human Rights Council, Special Rapporteur Najat Maalla M’jid suggests proposing a set of laws that can be easily adopted by all states. Such a broad set of laws would need to include a legal definition of child pornography, criminalize the mere possession of child pornography, criminalize sexual exploitation crimes facilitated by computers, and require all …

Due Process Abroad, Nathan Chapman

Scholarly Works

Defining the scope of the Constitution’s application outside U.S. territory is more important than ever. This month the Supreme Court will hear oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican child across the border. Meanwhile the federal courts are scrambling to evaluate the constitutionality of an Executive Order that, among other things, deprives immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause — the broadest constitutional limit on the government’s authority to deprive persons of “life, liberty, and property” — remains obscure. Up to now, …

Policy Paper: The Need To Enhance Victims’ Rights In The Florida Constitution To Fully Protect Crime Victims’ Rights, Paul Cassell, Margaret Garvin

Utah Law Faculty Scholarship

Given the emerging consensus concerning victims' rights as reflected in many state constitutions as well as in federal law, Florida should not simply rest on the nearly thirty-year-old provison currently in its constitution. Instead, Florida should, through its established and recognized procedures, expand the protections contained in its provision to cover the rights reflected in provisions enacted across the country and reflected in Marsy's Law.

Brief On The Investigation Of Canadian Nationals For War Crimes And Crimes Against Humanity In Afghanistan, Craig Scott

Commissioned Reports, Studies and Public Policy Documents

Acting Director of the Nathanson Centre, Professor Craig Scott, has submitted a brief to Prosecutor Fatou Bensouda of the International Criminal Court providing evidentiary reasons why Canadians in the military and civilian chain of command during Canada ‘s presence in the war in Afghanistan should fall within the scope of the Prosecutor’s efforts to investigate the “situation in Afghanistan” with respect to war crimes committed by the Taliban, the CIA and Afghan National Security Forces. Potential criminal responsibility arises from Canada ‘s policy and practices on the transfer of captives to both the US and Afghanistan. The brief also highlights …

Bradley V. Eighth Judicial Dist. Court, 133 Nev. Adv. Op. 92 (Nov. 22, 2017), Brianna Stutz

Nevada Supreme Court Summaries

The Court held that the district court erred when it ordered J.A.’s juvenile and delinquency records be turned over to the defense in Hudson’s criminal case. The Court held that Dr. Bradley’s confidential records pertaining to J.A. are privileged, and no exception or waiver applies.

The Pro Bono Collaborative Project Spotlight: Rwu Law Street Law: Teaching Teens About The Law And Inspiring Future Lawyers 11-16-2017, Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.

Alotaibi V. State, 133 Nev. Adv. Op. 81 (Nov. 9, 2017) (En Banc), Brendan Mcleod

Nevada Supreme Court Summaries

The Court clarified that when an element goes only to punishment and is not essential to a finding of guilt, it is not an element of the offense for purposes of determining whether a lesser-included-offense instruction is warranted pursuant to NRS 175.501. Further, the Court determined that where a statute provides alternative ways of committing an uncharged offense, the elements of only one of those alternatives needs to be included in the charged offense for the uncharged offense to be a lesser-included offense.

Constructing Recidivism Risk, Jessica Eaglin

AI-DR Collection

Courts increasingly use actuarial—meaning statistically derived—information about a defendant’s likelihood of engaging in criminal behavior in the future at sentencing. This Article examines how developers construct the tools that predict recidivism risk. It exposes the numerous choices that developers make during tool construction with serious consequences to sentencing law and policy. These design decisions require normative judgments concerning accuracy, equality, and the purpose of punishment. Whether and how to address these concerns reflects societal values about the administration of criminal justice more broadly. Currently, developers make these choices in the absence of law, even as they face distinct interests that …

State Criminal Appeals Revealed, Michael Heise, Nancy J. King, Nicole A. Heise

Cornell Law Faculty Publications

Every state provides appellate review of criminal judgments, yet little research examines which factors correlate with favorable outcomes for defendants who seek appellate relief. To address this scholarly gap, this paper exploits the Survey of Criminal Appeals in State Courts (2010) dataset, recently released by the Bureau of Justice Statistics and the National Center for State Courts (hereinafter, “NCSC Study”). The NCSC Study is the first and only publicly available national dataset on state criminal appeals and includes unprecedented information from every state court in the nation with jurisdiction to review criminal judgments. We focus on two subpools of state …

The Technology Requirements Of The First Electronic Monitoring Agreement In Us For Zappers, Phantomware, And Other Sales Suppression Devices, Richard Thompson Ainsworth, Robert Chicoine

Faculty Scholarship

On August 30, 2017, a plea was entered in the case of case of State of Washington v. Wong, Wash. Super. Ct., No. 16-1-00179-0, and as a result the first electronic monitoring agreement of sales transactions in the US (the “Monitoring Agreement”) was legislatively imposed on a retail business.

The Monitoring Agreement was negotiated between the State of Washington Department of Revenue (the “WA DOR”) and the taxpayer over a period of several months and is comprised of two parts: the basic agreement, which covered the obligations and rights of the parties, and an appendix, which defines the scope of …

Williams V. State Dep’T Of Corr., 133 Nev. Adv. Op. 75 (Oct. 5, 2017), Xheni Ristani

Nevada Supreme Court Summaries

The Nevada Supreme Court considered whether an offender must serve the minimum term of his or her sentence before any credits earned pursuant to the Credits statute apply to eligibility for parole. The Court disagreed with this argument and held that credits earned can factor-in for parole eligibility if the offender was sentenced under a state that requires a minimum term but does not explicitly mention parole eligibility.

Johnson V. State, 133 Nev. Adv. Op. 73 (Oct. 5, 2017) (En Banc), Ebeth Rocio Palafox

Nevada Supreme Court Summaries

When the Court reverses a death sentence on direct appeal and remands for a new penalty hearing, there is no longer a final judgment that triggers the one-year period set forth in NRS 34.726(1) for filing a post-conviction petition for a writ of habeas corpus.

False Massiah: The Sixth Amendment Revolution That Wasn't, Wayne A. Logan

Scholarly Publications

No abstract provided.

The Miranda Custody Requirement And Juveniles, Paul Marcus

Faculty Publications

Concerns about the interrogation process and the ability of minors to navigate the criminal justice system often intersect. The impact of the age of juveniles can be seen in a variety of judicial decisions, most markedly those dealing with punishment. But judicial concern for juveniles goes well beyond sentencing. The interrogation process raises especially grave fears.

Since the Supreme Court issued its landmark ruling in Miranda v. Arizona disallowing compelled inculpatory statements by criminal suspects and defendants, there has been concern as to whether juveniles fully understand and appreciate their rights as articulated in Miranda and based in the Fifth …

Terry V. Ohio And The (Un)Forgettable Frisk, Seth W. Stoughton

Faculty Publications

No abstract provided.

Is Having Too Many Aggravating Factors The Same As Having None At All?: A Comment On The Hidalgo Cert. Petition, Chad Flanders

All Faculty Scholarship

While the Court does not dispute that at first blush the defendant's argument appears logical, it is disturbed by the prospect of how one determines the point at which the number of aggravating circumstances causes the death penalty statute to be generally unconstitutional. Is the Court to engage in some mathematical calculation as to who might be covered by the statute and who is not; and if so, what would be reasonable and logical factors to include in the formula? Can the Court arbitrarily declare that fifty aggravating circumstances is too many but forty-nine is permissible? Even assuming one could …

Left Behind: How The Absence Of A Federal Vacatur Law Disadvantages Survivors Of Human Trafficking, Jessica Emerson, Alison Aminzadeh

All Faculty Scholarship

After a hamstring injury in October of 2004 forced her to surrender her athletic scholarship at St. John's University, Shamere McKenzie chose to spend her winter break working in order to save the money she needed to pay the remainder of her tuition. In January of 2005, Shamere met a man named Corey Davis, who expressed an interest in dating her. After getting to know him for several weeks, she eventually shared with him the challenges she was having earning the money she needed to continue her enrollment in college. Davis encouraged her to consider exotic dancing as a way …

Newsroom: Governor Raimondo On Rwu Law 09-19-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Newsroom: Representing Private Manning 09-18-2017, Edward Fitzpatrick, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

African Americans And Punishment For Crime: A Critique Of Mainstream And Neoliberal Discourses, Jason M. Williams, Nishaun Tarae Battle

Department of Justice Studies Faculty Scholarship and Creative Works

Understandings of punishment within the criminological enterprise have failed to capture the nuances associated with experiencing punishment. Moreover, mainstream academic discourses are inherently anachronistic in their conclusions on punishment, thus leaving significant gaps to be filled. One such gap is that of racialized history. This article attempts to make sense of punishment discourses (past and present) by situating them in their proper context. We argue that punishment, in particular for Blacks, is ideological and longstanding. Moreover, we posit that the prolonged punishment of Blacks is hyper manifested in contemporary society via neoliberal logic that has increasingly disabled race as a …

Brief Of The National Association For Public Defense As Amici Curiae Supporting Petitioner, Stein V. United States Of America (U.S. September 15, 2017) (No. 17-250)., Janet Moore

Faculty Articles and Other Publications

Petitioner’s case asks a basic but fundamental question: Will our criminal justice system permit convictions obtained through the knowing use of false testimony, simply because the prosecutor has not also suppressed evidence indicating the testimony was false? The Eleventh Circuit answered this question in the affirmative, but for decades this Court has known a very different justice system, one in which the knowing, uncorrected use of false testimony by the prosecutor could never be countenanced. And for good reason. As this Court has long recognized, the knowing use of false testimony is “as inconsistent with the rudimentary demands of justice …

The Welfare Effects Of Civil Forfeiture, Michael Preciado, Bart J. Wilson

ESI Publications

Using a laboratory experiment we explore competing claims on the welfare effects of civil forfeiture. Experiment participants are tasked with making trade-offs in allocating resources “to fight crime” with and without the ability to seize and forfeit assets. It is an open question whether the societal impact of reducing crime is greater in a world with or without civil forfeiture. Proponents of civil forfeiture argue that the ill-gotten gains of criminals can be used by law enforcement to further fight crime. Opponents claim that the confiscation of assets by law enforcement distorts the prioritization of cases by focusing attention, not …

Digital Surveillance And Preventive Policing, Manuel A. Utset

Scholarly Publications

No abstract provided.

Brief Of Amici Curiae Of 11 Addiction Experts In Support Of Appellee, Gene M. Heyman, Scott O. Lilienfeld, Stephen J. Morse, Sally L. Satel

All Faculty Scholarship

This brief is a critique of the brain disease model and many supposed implications of that model. It begins with a brief history of the model and moves to a discussion of the motivations behind the characterization of addiction as a “chronic and relapsing brain disease.” We follow with an enumeration of fallacious inferences based upon the brain disease model, including the very notion that addiction becomes a “brain disease” simply because it has neurobiological correlates. Regardless of whether addiction is labeled a brain disease, the real question, we contend, is whether the behavioral manifestations of addiction are unresponsive to …