Law Commons^™

Nontestimonial Declarations Against Penal Interest: Eschewing The Corroboration Requirement For Inculpatory Statements, 41 J. Marshall L. Rev. 969 (2008), Michael Duffy

UIC Law Review

No abstract provided.

What To Do With Omar Khadr? Putting A Child Soldier On Trial: Questions Of International Law, Juvenile Justice, And Moral Culpability, 41 J. Marshall L. Rev. 1281 (2008), Christopher L. Dore

UIC Law Review

No abstract provided.

Contrived Defenses And Deterrent Threats: Two Facets Of One Problem, Claire Oakes Finkelstein, Leo Katz

All Faculty Scholarship

What relation do the various parts of a plan bear to the overall aim of the plan? In this essay we consider this question in the context of two very different problems in the criminal law. The first, known in the German criminal law literature as the Actio Libera in Causa, involves defendants who contrive to commit crimes under conditions that would normally afford them a justification or excuse. The question is whether such defendants should be allowed to claim the defense when the defense is itself either contrived or anticipated in advance. The second is what we call the …

Juvenile Crime And Criminal Justice: Resolving Border Disputes, Jeffrey Fagan

Faculty Scholarship

Rising juvenile crime rates during the 1970s and 1980s spurred state legislatures across the country to exclude or transfer a significant share of offenders under the age of eighteen to the jurisdiction of the criminal court, essentially redrawing the boundary between the juvenile and adult justice systems. Jeffrey Fagan examines the legal architecture of the new boundary-drawing regime and how effective it has been in reducing crime.

The juvenile court, Fagan emphasizes, has always had the power to transfer juveniles to the criminal court. Transfer decisions were made individually by judges who weighed the compet­ing interests of public safety and …

Pretrial And Preventative Detention Of Suspected Terrorists: Options And Constraints Under International Law, Douglass Cassel

Journal Articles

This article analyzes the grounds, procedures and conditions required by International Human Rights Law and International Humanitarian Law for pretrial detention of suspected terrorists for purposes of criminal law enforcement, and for their preventive detention for security and intelligence purposes. Recognizing the difficulties in securing sufficient admissible evidence to prosecute terrorists within the tight time limits imposed by international law, the Article nonetheless suggests that indefinite detention, solely or primarily for purposes of intelligence interrogation, is probably not lawful under U.S. or international law. Preventive detention for security purposes, on the other hand, is generally permitted by international law, provided …

Constructing A Criminal Justice System Free Of Racial Bias: An Abolitionist Framework, Dorothy E. Roberts

All Faculty Scholarship

No abstract provided.

The Sixth Amendment And Criminal Sentencing, Stephanos Bibas, Susan R. Klein

All Faculty Scholarship

This symposium essay explores the impact of Rita, Gall, and Kimbrough on state and federal sentencing and plea bargaining systems. The Court continues to try to explain how the Sixth Amendment jury trial right limits legislative and judicial control of criminal sentencing. Equally important, the opposing sides in this debate have begun to form a stable consensus. These decisions inject more uncertainty in the process and free trial judges to counterbalance prosecutors. Thus, we predict, these decisions will move the balance of plea bargaining power back toward criminal defendants.

Commenting On Credibility In Kansas: A Constructive Criticism Of State V. Pabst, Steve Leben

Faculty Works

In some respects, this is a cautionary tale about overruling precedent. The Kansas Supreme Court openly overruled its own thirty-two year old precedent in deciding State v. Pabst in 2000. Cautionary tales and precedents aside, this Article is primarily about how trials are conducted, and how much latitude an attorney should have in Kansas to talk directly to jurors in closing argument about all the issues-including witness credibility-that will decide the case. Pabst forced attorneys to change the way they conduct closing arguments. While the result in Pabst was right, the rationale the court used to support the decision was …

A Closing Keynote: A Comment On Mass Incarceration In The United States, David Rudovsky

All Faculty Scholarship

No abstract provided.

Grand Jury Discretion And Constitutional Design, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

The grand jury possesses an unqualified power to decline to indict - despite probable cause that alleged criminal conduct has occurred. A grand jury might exercise this power, for example, to disagree with the wisdom of a criminal law or its application to a particular defendant. A grand jury might also use its discretionary power to send a message of disapproval regarding biased or unwise prosecutorial decisions or inefficient allocation of law enforcement resources in the community. This ability to exercise discretion on bases beyond the sufficiency of the evidence has been characterized pejoratively as grand jury nullification. The dominant …

Garbage Pails And Puppy Dog Tails: Is That What Katz Is Made Of?, Aya Gruber

Publications

This Article takes the opportunity of the fortieth anniversary of Katz v. U.S. to assess whether the revolutionary case's potential to provide broad and flexible privacy protection to individuals has been realized. Answering this question in a circumspect way, the Article pinpoints the language in Katz that was its eventual undoing and demonstrates how the Katz test has been plagued by two principle problems that have often rendered it more harmful to than protective of privacy. The manipulation problem describes the tendency of conservative courts to define reasonable expectations of privacy as lower than the expectations society actually entertains. The …

In The Trenches: Searches And The Misunderstood Common-Law History Of Suspicion And Probable Cause, Fabio Arcila

Scholarly Works

A detailed analysis of the common law during the Framers’ era, and of how it reflected the Fourth Amendment’s restrictions, shows that many judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This conclusion challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

Learned treatises in particular, and to a lesser extent a few case decisions, had articulated a judicial duty to monitor probable cause. But it is a mistake …

A Response To Professor Steinberg’S Fourth Amendment Chutzpah, Fabio Arcila

Scholarly Works

Professor David Steinberg believes that the Fourth Amendment was intended only to provide some protection against physical searches of homes through imposition of a specific warrant requirement because the Framers' only object in promulgating the Fourth Amendment was to ban physical searches of homes under general warrants or no warrants at all. This response essay takes issue with his thesis by (1) discussing its implications, (2) reviewing some concerns with his methodology in reviewing the historical record, and (3) examining the theoretical implication underlying his thesis that, except as to homes, we have a majoritarian Fourth Amendment, and questioning whether …

The Future Of Federal Sentencing Policy: Learning Lessons From Republican Judicial Appointees In The Guidelines Era, David M. Zlotnick

University of Colorado Law Review

In the two years since the landmark Booker decision, federal sentencing policy has been in a state of suspended animation. This Article urges federal sentencing reform advocates to look to an unlikely source for realistic goals and ideological support-the experiences of Republican judicial appointees in the Guidelines Era. Its findings are based upon a long-term research project into cases in which Republican appointees stated their disagreement with the sentences required by law from the bench. The Article discusses the primary product of my research, forty comprehensive case profiles and their policy implications. Specifically, the Article demonstrates how the lessons of …

Decisions About Coercion: The Corporate Attorney-Client Privilege Waiver Problem, Daniel C. Richman

Faculty Scholarship

For almost a decade, law reviews and hearing rooms have resounded with cogent arguments that, for corporations at least, the attorney-client privilege has been chilled, eroded, attacked, or even killed by the federal government's misuse of its bargaining leverage. Yet it is unclear whether this rhetoric is overstated or understated. Given that most federal criminal defendants plead guilty, and that an extraordinarily large percentage of them provide information and testimony against others in order to avoid harsh sentences (or to avoid being charged at all), one could as easily say that the Fifth and Sixth Amendments to the U.S. Constitution …

People V. Coughlin And Criticisms Of The Criminal Jury In Late Nineteenth-Century Chicago, Elizabeth Dale

UF Law Faculty Publications

The last decades of the nineteenth century and the first decades of the twentieth century are typically characterized as the era in which the criminal jury trial came to an end. Although criminal juries did not completely disappear, their role became smaller and smaller across that time frame. Most studies of this phenomenon attribute that decline to the rise of plea bargains in that same period. Specifically, these studies lead to the conclusion that institutional factors, such as case loads and the political pressure on elected prosecutors to be "tough on crime," made plea bargains an increasingly attractive option for …

Guilty Pleas Or Trials: Which Does The Barrister Prefer?, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

Barristers in England and attorneys in the United States have been upbraided for pursuing their interests to their clients' detriment in recommending guilty pleas over trials. While this accusation against American attorneys could be true since their incentives are sometimes skewed to favor guilty pleas, it is not accurate with respect to barristers in England. This is because the latter’s selfish incentives--to maximize income and avoid sanction--incline them to prefer trials over guilty pleas. In Melbourne and Sydney, barristers have never been similarly accused. Indeed, the topic has not been studied. Based on interviews with legal professionals in those cities, …

Abolition In The U.S.A. By 2050: On Political Capital And Ordinary Acts Of Resistance, Bernard E. Harcourt

Faculty Scholarship

The United States, like the larger international community, likely will tend toward greater abolition of the death penalty during the first half of the twenty-first century. A handful of individual states – states that have historically carried out few or no executions – probably will abolish capital punishment over the next twenty years, which will create political momentum and ultimately a federal constitutional ban on capital punishment in the United States. It is entirely reasonable to expect that, by the mid-twenty-first century, capital punishment will have the same status internationally as torture: an outlier practice, prohibited by international agreements and …

Introduction: The Challenge Of Lionel Tate, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

Legal reforms over the past generation have transformed juvenile crime regulation from a system that viewed most youth crime as the product of immaturity into one that is ready to hold many youths to the standard of accountability imposed on adults. Supporters of these reforms argue that they are simply a response to the inability of the traditional juvenile court to deal adequately with violent youth crime, but the legal changes that have transformed the system have often been undertaken in an atmosphere of moral panic, with little deliberation about consequences and costs.

In this book we argue that a …

Sentencing: Where Case Theory And The Client Meet, Kimberly A. Thomas

Articles

Criminal sentencing hearings provide unique opportunities for teaching and learning case theory. These hearings allow attorneys to develop a case theory in a context that both permits understanding of the concept and, at the same time, provides a window into the difficulties case theory can pose. Some features of sentencing hearings, such as relaxed rules of evidence and stock sentencing stories, provide a manageable application of case theory practice. Other features of sentencing hearings, such as the defendant's allocution, require an attorney to contend with competing "case theories," and as a result, to face the ethical and counseling challenge of …

Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman

Articles

Is a state forensic analyst's laboratory report, prepared for use in a criminal proceeding and identifying a substance as cocaine, "testimonial" evidence and so subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)?

Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman

Articles

If an accused murdered a witness, should he be deemed to have forfeited the right under the Sixth Amendment "to be confronted with" the witness, absent proof that the accused committed the murder for the purpose of rendering her unavailable as a witness?

Progressive Era, Richard Adelstein

Richard Adelstein

A short interpretive summary of the period 1890 - 1914.

Beyond Manson And Lukolongo: A Critique Of American And Zambian Eyewitness Law With Recommendations For Reform In The Developing World, Nicholas Kahn-Fogel

Nicholas Kahn-Fogel

This article is a comparative analysis of U.S. and Zambian eyewitness law. I analyze the two countries' approaches to eyewitness law in the context of the longstanding debate on whether rules or standards best effectuate underlying social values. With regard to the United States, I conclude that either a rule or a standard for admission of eyewitness evidence could provide effective protection of defendants' due process rights while also promoting the societal interest in admitting reliable proof of guilt. I then conduct the first comprehensive analysis of Zambian eyewitness cases and conclude that Zambian eyewitness law is, in some ways, …

‘Move On’ Orders As Fourth Amendment Seizures, Stephen E. Henderson

Stephen E Henderson

If a police officer orders one to move on, must the recipient comply? This article analyzes whether there is a federal constitutional right to remain, and in particular whether a police command to move on constitutes a seizure of the person for purposes of the Fourth Amendment. Although it is a close question, I conclude that the Fourth Amendment typically does not restrict a move on (MO) order, and that substantive due process only prohibits the most egregious such orders. It is a question of broad significance given the many legitimate reasons police might order persons to move on, as …