Law Commons^™

Form And Function In The Administration Of Justice: The Bill Of Rights And Federal Habeas Corpus, Larry Yackle

Faculty Scholarship

Part I critiques the Report's insistence that accurate fact finding exhausts, or nearly exhausts, the objectives of criminal justice, identifies the fundamental role of the Bill of Rights in the American political order, and situates federal habeas corpus within that framework. Part II traces the Report's historical review of the federal habeas jurisdiction and critiques the Report's too-convenient reliance on selected materials that, on examination, fail to undermine conventional understandings of the writ's development as a postconviction remedy. Part III responds to the Report's complaints regarding current habeas corpus practice and refutes contentions that the habeas jurisdiction overburdens federal dockets …

Court-Appointed Attorneys: Old Problems And New Solutions, H. Patrick Furman

Publications

No abstract provided.

Book Review, William T. Pizzi

Publications

No abstract provided.

A Conceptual, Practical, And Political Guide To Rico Reform, Gerard E. Lynch

Faculty Scholarship

RICO is nearing its twentieth birthday, but it may not be a happy one. In fact, 'tis the season for critics of RICO to be, if not jolly, at least highly active. A House subcommittee and the Senate Judiciary Committee have held hearings on RICO reform, the popular and business press has published numerous debates and criticisms involving fairly arcane points of civil and criminal law, scholars and lawyers have filled law reviews and legal newspapers with articles often critical of the statute, and the pressure has been building for statutory changes.

As the pressure for change has intensified, and …

Remembering The 'Old World' Of Criminal Procedure: A Reply To Professor Grano, Yale Kamisar

Articles

When I graduated from high school in 1961, the "old world" of criminal procedure still existed, albeit in its waning days; when I graduated from law school in 1968, circa the time most of today's first-year law students were arriving on the scene, the "new world" had fully dislodged the old. Indeed, the force of the new world's revolutionary impetus already had crested. Some of the change that the criminal procedure revolution effected was for the better, but much of it, at least as some of us see it, was decidedly for the worse. My students, however, cannot make the …

A Step Towards Fairness In Capital Litigation: Missouri Resource Center, Sean O'Brien

Faculty Works

No abstract provided.

Addressing The Needs Of Attorneys For The Damned, Sean O'Brien

Faculty Works

This article is an introduction to the UMKC Law Review symposium issue dedicated to exploring the topic of capital punishment. UMKC Professor of Law Sean O’Brien shares how the growing importance of capital litigation makes this a timely and appropriate subject for consideration and shares how the university and the Law Review's attention to the death penalty debate contributes to more than just academic discussion.

Determinants Of Judicial Waiver Decisions For Violent Juvenile Offenders, Jeffrey Fagan, Elizabeth Piper Deschens

Faculty Scholarship

The selection of jurisdiction for adjudicating juvenile crime today is one of the most controversial debates in crime control policy, reflecting differences in assumptions about the causes of crime and philosophies of jurisprudence and punishment. For adolescent offenders, especially violent youth whose behaviors may pose particular social danger, critics view the traditional goals of the juvenile court and the "best interests of the child" standard as being at odds with public concerns for retribution and incapacitation of criminals. The choice between jurisdictions is a choice between the nominally rehabilitative dispositions of the juvenile court and the explicitly punitive dispositions of …

"Carrot And Stick" Sentencing: Structuring Incentives For Organizational Defendants, John C. Coffee Jr.

Faculty Scholarship

The new "Draft Guidelines for Organizational Defendants" released by the U.S. Sentencing Commission on October 25, 1990, explicitly adopt a "'carrot and stick' approach" to sentencing. While the boldly instrumental use made of sentencing penalties and credits in these guidelines will trouble some, the larger question is whether the Commission's social engineering will work. Two issues stand out: First, is the Commission's carrot mightier than its stick? At first glance, this may seem a surprising question because the "stick" in the Commission's guidelines seemingly packs a Ruthian wallop: fines under the draft guidelines are based on a multiple of the …

Icac And The Community, Mark Findlay

Research Collection Yong Pung How School Of Law

Recently the language of 'community' has been widely used in the official discourse of criminal justice administration in Australia, in an obvious effort to legitimate new developments away from more traditional crime control. Commentators are now asking, why all this 'community speak' about policing, mediation, and corrections? As regards the 'community' perspective of anti-corruption initiatives, it is an attempt to transfer to the new institutions and processes some of the more positive implications which are assumed to flow from community allegiance.

The Right To Evidence, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Although its theoretical basis may be disputed, nobody questions the proposition that a person charged with a crime has a constitutional right to present a defense. Presenting a defense naturally requires access to proof. Access includes not only the availability of evidence, but also its permissible use. Consider some examples: A defendant wants to testify, but his lawyer's threats drive him off the stand. A witness who might be expected to give favorable testimony for the defense appears at trial but refuses to testify. A defense witness wants to testify, but because the defendant failed to notify the prosecutor about …

Habeas Corpus Committee - Correspondence, Lewis F. Powell, Jr.

Habeas Corpus Committee

No abstract provided.

Use Of Force Against Terrorist Bases: Introduction, Malvina Halberstam

Articles

No abstract provided.

Truth In Sentencing: Accepting Responsibility Under The United States Sentencing Guidelines, Bradford Mank

Faculty Articles and Other Publications

The United States Sentencing Guidelines (hereinafter Guidelines) allow federal district courts to reduce a defendant's sentence if the defendant "clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct .... " In United States v. Perez-Franco, the United States Court of Appeals for the First Circuit held that the above Guidelines section on acceptance of responsibility did not require a defendant to accept responsibility for charges that were to be dismissed as part of a plea agreement. The Perez-Franco decision is an affront to the fundamental principle that a defendant ought to take personal responsibility for …

Equivalent Deterrence: A Proposed Alternative To The Exclusionary Rule In Criminal Proceedings, Robert M. Hardaway

Sturm College of Law: Faculty Scholarship

Perhaps no other area of American jurisprudence is as controversial as the exclusionary rule. Rejected by all other civilized countries2 and held in contempt by much of the American public, the rule reached its zenith during the Warren Court, only to be chipped away a little at a time by the Burger Court. Indeed, if the rule is ever to die, it seems destined to go out with a whimper rather than a bang. . .

The Supreme Court And The Incredible Shrinking Fourth Amendment, Bruce G. Berner

Law Faculty Publications

No abstract provided.

Killing Daddy: Developing A Self-Defense Strategy For The Abused Child, Joelle A. Moreno

Faculty Publications

No abstract provided.

Illinois' Latest Version Of The Defense Of Voluntary Intoxication: Is It Wise? Is It Constitutional?, 39 Depaul L. Rev. 15 (1989), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

No abstract provided.

Criminal Procedure, 13 S. Ill. U. L.J. 511 (1989), Ralph Ruebner, Robert E. Davison

UIC Law Open Access Faculty Scholarship

No abstract provided.

When Racists And Radicals Meet, Ronald J. Bacigal, Margaret Ivey Bacigal

Law Faculty Publications

In order to stimulate scholarly discussion, this Essay presents an empirical account of the Greensboro incident from the perspective of those who participated in the episode and in the resulting civil rights trial. The Essay traces the circumstances leading to the violence and reviews the resultant litigation with special attention given to the role of the trial judge in politically volatile cases. The candid reflections offered by the trial judge and other participants allow the reader to examine both the event and the litigation, not merely in the abstract, but as implemented by flesh-andblood lawyers, litigants, and judges. .

Police Trespass And The Fourth Amendment: A Wall In Need Of Mending, Clifford S. Fishman

Scholarly Articles

Part I of this article provides an overview of basic Fourth Amendment principles. Part II analyzes the Oliver and Ciraolo cases which define and distinguish residential "curtilage," protected by the Fourth Amendment, and "open fields," which the Fourth Amendment does not protect. Part III reviews the Dow decision's discussion of whether an industrial facility, like a residence, might have constitutionally protected curtilage. Part IV focuses on the Dunn decision, which dramatizes the curtilage-open field dichotomy while at the same time blurring the line between the two. Finally, part V shows how these decisions may have invalidated the "commercial curtilage" concept …

The Thin Blue Line: Art Or Trial In The Fact-Finding Process?, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Commentary objectively analyzes The Thin Blue Line, focusing on the film’s monologues, dramatizations, and exhibits. The film's organizational structure roughly parallels the stages of the criminal justice process, from the investigation and arrest of Adams to his trial, conviction, sentence, and post-conviction litigation. The prologue and epilogue unify the story. Part II attempts to explain the bizarre judicial result, focusing on the prosecutor's dominant role in the criminal justice process. It concludes, as does the film, that one of the fundamental features of our legal system - the intrinsic ability of the adversary process to discover …

The Crime Victim’S "Right" To A Criminal Prosecution: A Proposed Model Statute For The Governance Of Private Criminal Prosecution, Peter L. Davis

Scholarly Works

The thesis of this article is that the public prosecutor should to have a monopoly on criminal prosecutions; some supplementary system of private criminal prosecution should be available. Two such systems, or models, currently exist in New York. The first model, available statewide, theoretically allows a complainant to initiate a non-felony criminal prosecution without any screening by a prosecutor or judge. This system is unwise, unworkable and illusory because it obscures the exercise of judicial discretion and focuses the court’s attention on the wrong issues, usually precluding the crime victim’s complaint. The second model, limited by statute to New York …

Summary Of Tokugawa Criminal Justice, Daniel H. Foote

Articles

The summary set forth below is derived principally from the late Professor Yoshiro Hiramatsu's-comprehensive study of Tokugawa criminal justice. Hiramatsu's work focusses on the period from the promulgation of the Osadamegaki by the Shogun Yoshimune in 1742 through the end of the Tokugawa era in 1867. (As described by Professor Dan F. Henderson, Conciliation and Japanese Law, Tokugawa and Modern (1965), Vol. 1, at 7, fn. 26, the Osadamegaki, which consisted of two books, constituted "a compilation and rough codification of prior decrees and precedents", and "was the only such official attempt to systematize the law in the Tokugawa period." …

Diagnosis Of The Current Code Of Criminal Procedure, Daniel H. Foote

Articles

Approximately 35 years have passed since the current Code of Criminal Procedure went into effect, and today the manner in which that Code is interpreted and applied appears nearly stable. In truth, for most of the provisions and systems under the current Code about which there had been many questions of interpretation and application (e.g., interpretation of the provisions concerning hearsay evidence, discovery, exclusion of illegally-obtained evidence, and abuse of the authority to prosecute), some sort of conclusion (ichid no ketsuron) has been reached. In that sense, matters have "stabilized." However, in my view much more deep-seated problems remain unresolved. …

Enforcing The Rules Of Criminal Procedure: An American Perspective, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

The Reasonable Doubt Rule And The Meaning Of Innocence, Scott E. Sundby

Articles

No abstract provided.

Wisconsin Sentence Modification: A View From The Trial Court, Kate Kruse, Kim E. Patterson

Faculty Scholarship

In Wisconsin, trial courts have discretion to modify a defendant's criminal sentence if the defendant introduces a "new factor." Published Wisconsin case law gives little guidance on what constitutes a new factor. The Wisconsin Supreme Court has declined to find a new factor present in every case it has published since defining "new factor" in 1978. Because of ambiguous and conflicting rulings, the standards for both prongs of the new factor definition remain unclear. This Comment attempts to shed light on the new factor requirement for sentence modification by examining Wisconsin trial court decisions on a limited sample of sentence …

The Virtues Of A Procedural View Of Innocence--A Response To Professor Schwartz, Scott E. Sundby

Articles

No abstract provided.

The Supreme Court's New Vision Of Federal Habeas Corpus For State Prisoners, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.