Law Commons^™

Imminence Should Not Be A Controlling Factor In The Duress Defense In The Context Of Battered Women, Jacqueline Fink

Touro Law Review

Domestic violence is a silent killer that attacks quickly. This Note specifically discusses the Battered Woman Syndrome and the need to explore the current laws that “protect” this group. Current laws in a majority of states create a barrier that blocks battered women from obtaining the justice that should be given to all citizens. When the abused woman is at an impasse in her relationship, she may be forced to make a life-or-death decision. More likely than not, the result becomes the worst possible outcome. Domestic violence continues to be higher amongst women than men, where women are emotionally, as …

The Curious Absence Of Provocation Affirmative Defenses In Assault Cases, Michael S. Dauber

St. John's Law Review

(Excerpt)

Kent Davis returned home on February 22, 2008, took his toddler into the bedroom, fed her a bottle, and sat down to watch some television. His wife, Rachel, noticed that their daughter had spilled her bottle, and the two began to argue. During the argument, Rachel opened the window and yelled for the police; she also spat on Davis. When she tried to call the police, Davis grabbed her cell phone and “snapped it in half.” Davis then took a knife from the kitchen and assaulted Rachel, punching her and stabbing her in the shoulder and neck until he …

Revitalizing Fourth Amendment Protections: A True Totality Of The Circumstances Test In § 1983 Probable Cause Determinations, Ryan Sullivan

Nebraska College of Law: Faculty Publications

The Article analyzes claims of police misconduct and false arrest, specifically addressing the issue of whether a police officer may ignore evidence of an affirmative defense, such as self-defense, when determining probable cause for an arrest. The inquiry most often arises in § 1983 civil claims for false arrest where the officer was aware of some evidence a crime had been committed, but was also aware of facts indicating the suspect had an affirmative defense to the crime observed. In extreme cases, the affirmative defense at issue is actually self-defense in response to the officer’s own unlawful conduct. As police …

Criminal Usury And Its Impact On New York Business Transactions, Christopher Basile

Touro Law Review

No abstract provided.

Affirmative Defenses; Defendant's Burden Of Proof: Defense Of Extreme Emotional Disturbance; Due Process; Patteron V. New York, Lee Ann Johnson

Akron Law Review

The United States Supreme Court in Patterson v. New York upheld the constitutionality of a New York murder statute which places on the defendant the burden of proving extreme emotional disturbance. The Court thereby determined that New York courts in applying the statute against defendant Gordon Patterson had not violated his right to due process of law

Punishment Without Culpability, John F. Stinneford

John F. Stinneford

For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor. The …

Punishment Without Culpability, John F. Stinneford

UF Law Faculty Publications

For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor.

The …

Race And The Doctrine Of Self Defense: The Role Of Race In Determining The Proper Use Of Force To Protect Oneself, Richard Klein

Richard Daniel Klein

No abstract provided.

Race And The Doctrine Of Self Defense: The Role Of Race In Determining The Proper Use Of Force To Protect Oneself, Richard Klein

Scholarly Works

No abstract provided.

Back To The Future: Does Apprendi Bar A Legislature's Power To Shift The Burden Of Proof Away From The Prosecution By Labeling An Element Of A Traditional Crime As An Affirmative Defense?, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

This Article considers whether it would be sound to extend the Apprendi rule to affirmative defenses. Part II of this Article considers the historical foundation of the Due Process Clause and the evolution of the assignment of the burden of proof for affirmative defenses and sentencing factors. Part II also reviews Mullaney and its progeny through the most current case, Apprendi. Part III discusses the Court's model for determining which categories of statutory language constitute elements requiring proof beyond a reasonable doubt and which are "nonessential element[s] of an offense." Part IV evaluates whether it is appropriate to assign the …

Postpartum Psychosis As A Defense To Infant Murder, Barbara E. Rosenberg

Touro Law Review

No abstract provided.

Products Liability Based Upon Violation Of Statutory Standards, Joseph H. Ballway Jr.

Michigan Law Review

Regulatory enactments controlling production and distribution can give rise in several different ways to civil liability on behalf of persons injured by non-conforming merchandise. For instance, if a statute codifies existing common-law rules of negligence, its effect is merely to place the weight of legislative authority behind ordinary negligence principles. Since an injured party's recovery under such a provision still depends largely upon his proving in the traditional manner that a defendant failed to exercise due care, this kind of statute merits no further discussion. On the other hand, if particular legislation expressly states that a violator may be subjected …

Burden Of Proof Of Affirmative Defenses In Criminal Cases - Gunther V. State, David S. Klein

Maryland Law Review

No abstract provided.