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Articles 1 - 30 of 37
Full-Text Articles in Law
Reconceiving Coercion-Based Criminal Defenses, Stephen R. Galoob, Erin L. Sheley
Reconceiving Coercion-Based Criminal Defenses, Stephen R. Galoob, Erin L. Sheley
Faculty Scholarship
Coercing someone is sometimes wrong and sometimes a crime. People subject to coercion are sometimes eligible for criminal defenses, such as duress. How, exactly, does coercion operate in such contexts? Among legal scholars, the predominant understanding of coercion is the “wrongful pressure” model, which states that coercion exists when the coercer wrongfully threatens the target and, as a result of this threat, the target is pressured to act in accordance with the coercer’s threat. Some tokens of coercion do not fit neatly within existing legal categories or the wrongful pressure model of coercion. For example, coercive control is a psychological …
Reconceiving Coercion-Based Criminal Defenses, Stephen R. Galoob, Erin Sheley
Reconceiving Coercion-Based Criminal Defenses, Stephen R. Galoob, Erin Sheley
Journal of Criminal Law and Criminology
Coercing someone is sometimes wrong and sometimes a crime. People subject to coercion are sometimes eligible for criminaldefenses, such as duress. How, exactly, does coercion operate in such contexts? Among legal scholars, the predominant understanding of coercion is the “wrongful pressure” model, which states that coercion exists when the coercer wrongfully threatens the target and, as a result of this threat, the target is pressured to act in accordance with the coercer’s threat. Some tokens of coercion do not fit neatly within existing legal categories or the wrongful pressure model of coercion. For example, coercive control is a psychological phenomenon …
Analyzing Wrongful Convictions Beyond The Traditional Canonical List Of Errors, For Enduring Structural And Sociological Attributes, (Juveniles, Racism, Adversary System, Policing Policies), Leona D. Jochnowitz, Tonya Kendall
Analyzing Wrongful Convictions Beyond The Traditional Canonical List Of Errors, For Enduring Structural And Sociological Attributes, (Juveniles, Racism, Adversary System, Policing Policies), Leona D. Jochnowitz, Tonya Kendall
Touro Law Review
Researchers identify possible structural causes for wrongful convictions: racism, justice system culture, adversary system, plea bargaining, media, juvenile and mentally impaired accused, and wars on drugs and crime. They indicate that unless the root causes of conviction error are identified, the routine explanations of error (e.g., eyewitness identifications; false confessions) will continue to re-occur. Identifying structural problems may help to prevent future wrongful convictions. The research involves the coding of archival data from the Innocence Project for seventeen cases, including the one for the Central Park Five exonerees. The data were coded by Hartwick College and Northern Vermont University students …
Prosecuting Civil Asset Forfeiture On Contingency Fees: Looking For Profit In All The Wrong Places, Louis S. Rulli
Prosecuting Civil Asset Forfeiture On Contingency Fees: Looking For Profit In All The Wrong Places, Louis S. Rulli
All Faculty Scholarship
Civil asset forfeiture has strayed far from its intended purpose. Designed to give law enforcement powerful tools to combat maritime offenses and criminal enterprises, forfeiture laws are now used to prey upon innocent motorists and lawful homeowners who are never charged with crimes. Their only sins are that they are carrying legal tender while driving on busy highways or providing shelter in their homes to adult children and grandchildren who allegedly sold small amounts of low-level drugs. Civil forfeiture abuses are commonplace throughout the country with some police even armed with legal waivers for property owners to sign on the …
Economic Hardship As Coercion Under The Protocol On International Trafficking In Persons By Organized Crime Elements, Linda A. Malone
Economic Hardship As Coercion Under The Protocol On International Trafficking In Persons By Organized Crime Elements, Linda A. Malone
Linda A. Malone
No abstract provided.
Custodial Compulsion, Kyron J. Huigens
Custodial Compulsion, Kyron J. Huigens
Articles
In cases that fall under Miranda v Arizona, police interrogators not only give a suspect reasons to confess; they also suggest that the suspect ought to confess. In doing so, interrogators effectively invoke the Wigmorean duty of a citizen to produce any evidence he has in his possession, including his own confession. That is, they invoke the duty against which the Self Incrimination Clause stands, so that the clause is applicable to police interrogations, and is violated where it is not waived. This means that “a Miranda violation” is a violation of the Self Incrimination Clause in the field, just …
Cooperative Rape, Gabriel M. Glasser
Consent And Coercion, Kimberly Kessler Ferzan
Consent And Coercion, Kimberly Kessler Ferzan
All Faculty Scholarship
There are substantial disputes as to what sorts of behavior constitute coercion and thereby undermine consent. This disagreement was on full display during the public fray over Aziz Ansari’s behavior on a date. Whereas some commentators condemned Ansari’s behavior as nothing short of sexual assault, others believed his behavior did not rise to the level of undermining consent.
This Article claims that the way forward is to see that there are two normative functions for coercion, and each is at play with respect to consent. Sometimes coercion is about the blameworthiness of the coercer, and sometimes coercion is about the …
How To Think (Like A Lawyer) About Rape, Kimberly Kessler Ferzan, Peter K. Westen
How To Think (Like A Lawyer) About Rape, Kimberly Kessler Ferzan, Peter K. Westen
All Faculty Scholarship
From the American Law Institute to college campuses, there is a renewed interest in the law of rape. Law school faculty, however, may be reluctant to teach this deeply debated topic. This article begins from the premise that controversial and contested questions can be best resolved when participants understand the conceptual architecture that surrounds and delineates the normative questions. This allows participants to talk to one another instead of past each other. Accordingly, in this article, we begin by diffusing two non-debates: the apparent conflict created when we use “consent” to mean two different things and the question of whether …
Contemporary Soviet Criminal Law: An Analysis Of The General Principles And Major Institutions Of Post-1958 Soviet Criminal Law, Chris Osakwe
Georgia Journal of International & Comparative Law
No abstract provided.
Consent, Culpability, And The Law Of Rape, Kimberly Kessler Ferzan
Consent, Culpability, And The Law Of Rape, Kimberly Kessler Ferzan
All Faculty Scholarship
This Article explores the relationship between consent and culpability. The goal is to present a thorough exposition of the tradeoffs at play when the law adopts different conceptions of consent. After describing the relationship between culpability, wrongdoing, permissibility, and consent, I argue that the best conception of consent—one that reflects what consent really is—is the conception of willed acquiescence. I then contend that to the extent that affirmative consent standards are aimed at protecting defendants, this can be better achieved through mens rea provisions. I then turn to the current victim-protecting impetus for affirmative expression standards, specifically, requirements that the …
Interrogation Policies, Brandon L. Garrett
Interrogation Policies, Brandon L. Garrett
University of Richmond Law Review
No abstract provided.
Coercing Pregnancy, A. Rachel Camp
Coercing Pregnancy, A. Rachel Camp
William & Mary Journal of Race, Gender, and Social Justice
Intimate partners coerce thousands of women in the United States into pregnancy each year through manipulation, threats of violence, or acts that deliberately interfere with the use of, or access to, contraception or abortion. Although many of these pregnancies occur within the context of otherwise abusive relationships, for others, pregnancy serves as a trigger for intimate partner violence. Beyond violence preceding or resulting from pregnancy, women who experience coerced pregnancies often suffer other physical, financial and emotional harms. Despite its correlation to domestic violence, reproductive coercion fits imperfectly, if at all, within our existing laws designed to combat domestic violence …
Confessions, Criminals, And Community, Sheri Lynn Johnson
Confessions, Criminals, And Community, Sheri Lynn Johnson
Sheri Lynn Johnson
No abstract provided.
Miranda, Secret Questioning, And The Right To Counsel, Geoffrey S. Corn
Miranda, Secret Questioning, And The Right To Counsel, Geoffrey S. Corn
Geoffrey S. Corn
Surreptitious police questioning, either through an undercover officer or a prison inmate acting as a government agent, is often an effective tactic to exploit a suspect’s erroneous belief that it is safe to make incriminating statements. The Supreme Court has held that use of this tactic does not implicate the Miranda rights warning and waiver requirement because the suspect’s ignorance that the false friend is in fact a government agent eliminates an essential element of the custodial interrogation trigger for these rights. However, in Edwards and Minnick, the Supreme Court recognized that once a suspect invokes the Miranda right …
The Poverty Defense, Michele Estrin Gilman
The Poverty Defense, Michele Estrin Gilman
University of Richmond Law Review
No abstract provided.
It’S In The Bag: Voluntariness, Scope, And The Authority To Grant Consent - United States V. Harris, Daniel Fier
It’S In The Bag: Voluntariness, Scope, And The Authority To Grant Consent - United States V. Harris, Daniel Fier
Touro Law Review
No abstract provided.
Rethinking Self-Incrimination, Voluntariness, And Coercion, Through A Perspective Of Jewish Law And Legal Theory, Samuel J. Levine
Rethinking Self-Incrimination, Voluntariness, And Coercion, Through A Perspective Of Jewish Law And Legal Theory, Samuel J. Levine
Samuel J. Levine
No abstract provided.
Anti-Trafficking Legislation In Sub-Saharan Africa: Analyzing The Role Of Coercion And Parental Responsibility, Ruby Andrew, Benjamin N. Lawrance
Anti-Trafficking Legislation In Sub-Saharan Africa: Analyzing The Role Of Coercion And Parental Responsibility, Ruby Andrew, Benjamin N. Lawrance
Fourth Annual Interdisciplinary Conference on Human Trafficking, 2012
This article discusses the effect of US and international support for local laws to combat child trafficking in sub-Saharan African states. The annual ranking of African anti-trafficking measures, produced by the US State Department’s Office to Monitor and Combat Trafficking in Persons (OMCTP) in conjunction with the UN Office on Crime and Drugs, not only provides an important source of data but also creates a powerful incentive for African states to effect legislative change.
We argue that, although the US supports criminalization of traffickers and the OMCTP espouses laws to deter parental inducement to support trafficking activities, the implementation of …
Rethinking Self-Incrimination, Voluntariness, And Coercion, Through A Perspective Of Jewish Law And Legal Theory, Samuel J. Levine
Rethinking Self-Incrimination, Voluntariness, And Coercion, Through A Perspective Of Jewish Law And Legal Theory, Samuel J. Levine
Scholarly Works
No abstract provided.
Excluding Coerced Witness Testimony To Protect A Criminal Defendant's Right To Due Process Of Law And Adequately Deter Police Misconduct, Katherine Sheridan
Excluding Coerced Witness Testimony To Protect A Criminal Defendant's Right To Due Process Of Law And Adequately Deter Police Misconduct, Katherine Sheridan
Fordham Urban Law Journal
This Note argues that the Due Process Clause must protect criminal defendants from the admission of an involuntary statement made by a witness. Part I discusses the history of the use of involuntary statements, specifically the justifications for the exclusion of coerced confessions. Part II examines how various courts have addressed the issue and have come to different conclusions. Part III explains why involuntary witness statements should be excluded under the Due Process Clause in criminal trials.
Coercion's Common Threads: Addressing Vagueness In The Federal Criminal Prohibitions On Torture By Looking To State Domestic Violence Laws, Sarah H. St. Vincent
Coercion's Common Threads: Addressing Vagueness In The Federal Criminal Prohibitions On Torture By Looking To State Domestic Violence Laws, Sarah H. St. Vincent
Michigan Law Review
Under international law, the United States is obligated to criminalize acts of torture and cruel, inhuman, or degrading treatment. However, the federal criminal torture laws employ several terms whose meanings are so indeterminate that they inhibit the statutes' effectiveness and fail to provide adequate guidance regarding precisely which forms of mistreatment may result in prosecution. These ambiguous terms have given rise to serious and prolonged controversies within the executive branch regarding what torture is-controversies that confirm, and may further compound, the uncertainty of liability under the laws in question.
In order to solve this problem of vagueness and provide definitive …
Competing Theories Of Blackmail: An Empirical Research Critique Of Criminal Law Theory, Paul H. Robinson, Michael T, Cahill, Daniel M. Bartels
Competing Theories Of Blackmail: An Empirical Research Critique Of Criminal Law Theory, Paul H. Robinson, Michael T, Cahill, Daniel M. Bartels
All Faculty Scholarship
Blackmail, a wonderfully curious offense, is the favorite of clever criminal law theorists. It criminalizes the threat to do something that would not be criminal if one did it. There exists a rich literature on the issue, with many prominent legal scholars offering their accounts. Each theorist has his own explanation as to why the blackmail offense exists. Most theories seek to justify the position that blackmail is a moral wrong and claim to offer an account that reflects widely shared moral intuitions. But the theories make widely varying assertions about what those shared intuitions are, while also lacking any …
Beyond Torture: The Nemo Tenetur Principle In Borderline Cases, Luis E. Chiesa
Beyond Torture: The Nemo Tenetur Principle In Borderline Cases, Luis E. Chiesa
Journal Articles
In this article I examine three borderline cases in which it is not clear whether a confession had been obtained in violation of the nemo tenetur principle (i.e. the rights against self-incrimination and forced inculpation). The case of the false confession presents a situation in which a person made a voluntary confession but the overwhelming evidence pointed to the falsity of the statements. In contrast, the confession obtained in the case of the truth serum is of high probative value. However, it could be argued that the suspect did not voluntarily decide to incriminate himself, given that he confessed when …
Standing Alone: Conformity, Coercion, And The Protection Of The Holdout Juror, Jason D. Reichelt
Standing Alone: Conformity, Coercion, And The Protection Of The Holdout Juror, Jason D. Reichelt
University of Michigan Journal of Law Reform
The holdout juror in felony criminal trials is a product of the near-universal decision rule in federal and state courts of a unanimous verdict. In recent years, courts have increasingly inquired into a jury's deliberations when a holdout juror has been identified amid allegations of misconduct. This Article helps bridge the considerable gap between cognitive psychology and legal scholarship, analyzing the thought processes of the holdout juror through the application of empirical evidence and psychological modeling, to conclude that the improved protection of the holdout juror is a necessary and critical component to the preservation of a defendant's right to …
Proximate Cause In Constitutional Torts: Holding Interrogators Liable For Fifth Amendment Violations At Trial, Joel Flaxman
Proximate Cause In Constitutional Torts: Holding Interrogators Liable For Fifth Amendment Violations At Trial, Joel Flaxman
Michigan Law Review
This Note argues for the approach taken by the Sixth Circuit in McKinley: a proper understanding of the Fifth Amendment requires holding that an officer who coerces a confession that is used at trial to convict a defendant in violation of the right against self-incrimination should face liability for the harm of conviction and imprisonment. Part I examines how the Supreme Court and the circuits have applied the concept of common law proximate causation to constitutional torts and argues that lower courts are wrong to blindly adopt common law rules without reference to the constitutional rights at stake. It …
The Lawyer's "Conscience" And The Limits Of Persuasion, Abbe Smith
The Lawyer's "Conscience" And The Limits Of Persuasion, Abbe Smith
Georgetown Law Faculty Publications and Other Works
As all practicing lawyers know, interviewing and counseling are at the heart of legal representation. This is what lawyers do, even criminal trial lawyers: we talk with and advise clients. Sometimes, after considering the government’s case and available defenses, we advise clients to go to trial. More often, we advise them to take a plea.
In counseling our clients we can be as “client-centered” as the next lawyer, graciously acceding to our clients’ wishes. This is especially so when the client is making what we regard to be a reasonable choice. But clients are not always reasonable. Sometimes they are …
Symposium Introduction -- Miranda At 40: Applications In A Post-Enron, Post-9/11 World, Donald J. Kochan
Symposium Introduction -- Miranda At 40: Applications In A Post-Enron, Post-9/11 World, Donald J. Kochan
Donald J. Kochan
The groundbreaking case of Miranda v. Arizona raise[d] questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. This Introduction to the 2007 Chapman Law Review Symposium summarizes the contemporary examination of Miranda's influence, past and present, along with the continuing debate today. The experiences and precedents that have evolved in the past 40 years helps to explore the evolution of the criminal law and procedural dictates set forth in Miranda. Complications with custodial interrogation - and the impulses and incentives involved …
Global Sex Trafficking And The Trafficking Victims Protection Act Of 2000: Legislative Responses To The Problem Of Modern Slavery, Rosy Kandathil
Global Sex Trafficking And The Trafficking Victims Protection Act Of 2000: Legislative Responses To The Problem Of Modern Slavery, Rosy Kandathil
Michigan Journal of Gender & Law
Human trafficking is becoming the fastest growing criminal activity in the world. Generally, trafficking is defined as the transportation of persons across international borders for labor purposes, by means of force, fraud, or coercion. Commerce directly related to human slavery yields approximately $7-$10 billion a year, trailing only behind drugs and weapons trade for international profit. According to recent congressional findings, over 700,000 human beings are trafficked across international borders each year, including approximately 50,000 women and children into the United States. Women and girl children are the primary targets for sexual exploitation into prostitution, pornography, sex tourism, and other …
Economic Hardship As Coercion Under The Protocol On International Trafficking In Persons By Organized Crime Elements, Linda A. Malone
Economic Hardship As Coercion Under The Protocol On International Trafficking In Persons By Organized Crime Elements, Linda A. Malone
Faculty Publications
No abstract provided.