Law Commons^™

The Grand Jury Legal Advisor: Resurrecting The Grand Jury's Shield, Thaddeus Hoffmeister

Thaddeus Hoffmeister

This article begins by discussing the prosecutor’s control over the grand jury process and whether that is necessarily a good or bad thing. After determining that it is indeed harmful to the criminal justice system, the article offers a possible remedy, the grand jury legal advisor (GJLA). Currently, both the state of Hawaii and the military use the GJLA. The article concludes by demonstrating that the advantages of implementing the GJLA greatly outweigh the disadvantages. In fact, the GJLA actually benefits the prosecutor. As part of the research for this article, the author has conducted an independent survey with former …

Some Thoughts On Achieving U.S. Compliance With International Obligation To Inform Other Nations About Arrest Of Their Citizens, Talbot D'Alemberte

Talbot D'Alemberte

The Avena decision against the United States by the World Court again tarnishes the reputation of the United States in the international human rights community but some relatively simple steps could bring this country into compliance with its treaty obligations to inform foreign nationals of their rights under the Vienna Convention on Consular Relations.

The article suggests that private economic action might be effective yet, to avoid that step, the problem can be corrected through legislation, through use of Miranda warnings and through notice given at arraignment.

Equal Sentences For Unequal Participation: Should The Eighth Amendment Allow All Juvenile Murder Accomplices To Receive Life Without Parole?, Brian Gallini

Brian Gallini

Santos And Cuellar: The U.S. Supreme Court Limits The Government's Ability To Prosecute Transnational Crime Under The Money Laundering Statutes, Stefan D. Cassella

Stefan D Cassella

These are the lecture notes from a presentation on the impact of the Supreme Court's decisions on June 2, 2008 in the Santos and Cuellar cases, which arguably have limited the government's ability to use the anti-money laundering statutes to prosecute both domestic and international money laundering offenses. A more formal paper on this topic will be forthcoming.

Troubled Indictments At The Special Court For Sierra Leone: The Pleading Of Joint Criminal Enterprise And Sex-Based Crimes, Cecily E. Rose

Cecily E. Rose

This article argues that the indictments at the Special Court for Sierra Leone have pleaded joint criminal enterprise and sex-based crimes in ways that threaten the rights of the accused to notice of the charges against them. While the Taylor Indictment neglects to outline the purpose of the joint criminal enterprise in which the accused allegedly took part, the Prosecution’s recent arguments in this respect have further confused the matter. In addition, the RUF and AFRC Indictments alleged forced marriage without clearly indicating what crime such conduct would violate. Although the Appeals Chamber provided guidance on the issues of joint …

Conditional Rules In Criminal Procedure: Alice In Wonderland Meets The Constitution., David Rossman

David Rossman

Without recognizing that it has done so, the Supreme Court has created a category of constitutional rules of criminal procedure that are all in a peculiar format, conditional rules. A conditional rule depends on some future event to determine whether one has failed to honor it. In a wide variety of contexts, if a police officer, prosecutor, judge or defense attorney does something that the Constitution regulates, one cannot determine if the constitutional rule has been violated or not until some point in the future.

The Court has used three methods to create these rules. One looks to prejudice, and …

Knock And Talk, Craig M. Bradley

Craig M. Bradley

No abstract provided.

Trapped In The Law? How Lawyers Reconcile The Legal And Social Aspects Of Their Work, Hadar Aviram

Hadar Aviram

This Article addresses an immensely important, and often neglected, problem faced by legal practitioners in their daily professional lives: how do legal actors feel, and act, when the cases in which they are involved have evident, and disturbing, socio-economic implications? This situation is particularly uncomfortable for prosecutors, judges, and defense attorneys, whose criminal case workload often reflects much deeper social inequalities and problems, and whose defendant population is characterized by an overrepresentation of disempowered groups. Legal actors who engage daily with "the tip of the social iceberg" in the courtroom are keenly aware of the broader aspects of the problem; …

The Death Penalty In Delaware: An Empirical Study, John H. Blume, Theodore Eisenberg, Sheri Johnson, Valerie P. Hans

Valerie P. Hans

This article reports the findings of the first phase of a three phase empirical study of the death penalty in Delaware. In phase 1, we examined only cases in which the defendant was sentenced to death. While our findings are preliminary, there appear to be, as numerous other studies have found in other jurisdictions, race of victim effects. Seventy percent of the death sentences were imposed in white victim cases, even though the majority of the murder victims are black. Additionally, Delaware has one of the highest death sentencing rates in the country. This high rate appears to be the …

Criminal Forfeiture Procedure In 2008: A Survey Of Developments In The Case Law, Stefan D. Cassella

Stefan D Cassella

This is an annual survey of the federal case law relating to criminal forfeiture procedure. Forfeiture is part of the sentence in a criminal case. The article discusses the cases from 2007 discussing the scope of criminal forfeiture, the rights of third parties, and the procedures under Rule 32.2 and Section 853, including indictment, seizure and restraint, guilty pleas, the bifurcated trial, sentencing, and the post-trial ancillary proceeding. Copyright © 2008 Thomson Reuters/West.

Habitations Of Cruelty - Pitfalls Of Expanding Hate Crime Legislation To Include The Homeless, Scott Steiner

Scott A Steiner

Hate crime law has developed and expanded substantially since its earliest forms. A concerted effort is currently underway to expand existing hate crime legislation to include the homeless.

This paper provides a history of both state and federal hate crime legislation, examines precisely what a hate crime is (and how that definition differs from state to state), explores the growing problem of violence against the homeless, and analyzes recent developments in expanding state and local law to protect based on homelessness.

It offers both arguments in favor and arguments against the expansion of hate crime laws to include the homeless …

Habitations Of Cruelty - Pitfalls Of Expanding Hate Crime Legislation To Include The Homeless, Scott A. Steiner

Scott A Steiner

Hate crime law has developed and expanded substantially since its earliest form. A concerted effort is currently underway to expand existing hate crime legislation to include the homeless.

This paper provides a history of both state and federal hate crime legislation, examines precisely what a hate crime is (and how that definition differs from state to state), explores the growing problem of violence against the homeless, and analyzes recent developments in expanding state and local law to protect based on homelessness.

It offers both arguments in favor and arguments against the expansion of hate crime laws to include the homeless …

What Happens In North Minneapolis Doesn’T Stay In North Minneapolis: Arguing Credibility In A Criminal Trial, Rebutting Implicit Jury Bias, And Taking A New Look At Why A Prosecutor Would Tell Jurors That Civilian Witnesses Are From A “Different World”, Joshua Larson

Joshua R. Larson

In several recent homicide cases from Minneapolis, Minnesota, prosecutors have used a particular rhetorical device in closing argument that suggests to jurors that certain civilian witnesses from North Minneapolis live in a different world than the jurors do and that, therefore, the jurors must consider the witnesses’ unique cultural characteristics when weighing the witnesses’ credibility. Defense attorneys have decried these “different world” arguments, and the Minnesota Supreme Court has expressed concern that such arguments could violate a defendant’s right to a fair trial by insinuating that the defendant is from a different world and by introducing unnecessary racial or socioeconomic …

Habitations Of Cruelty: Pitfalls Of Expanding Hate Crime Legislation To Include The Homeless, Scott A. Steiner

Scott A Steiner

Hate crime law has developed and expanded substantially since its earliest forms. A concerted effort is currently underway to expand existing hate crime legislation to include the homeless.

This paper provides a history of both state and federal hate crime legislation, examines precisely what a hate crime is (and how that definition differs from state to state), explores the growing problem of violence against the homeless, and analyzes recent developments in expanding state and local law to protect based on homelessness.

It offers both arguments in favor and arguments against the expansion of hate crime laws to include the homeless …

The Perverse Effect Of Campaign Contribution Limits: Making The Amount Of Money That Can Be Offered Smaller Increases The Likelihood Of Corruption In The Federal Legislature, Philip Nichols

Philip M. Nichols

Corruption is an important issue, which poses a special threat to the democratic institutions and integrity of the United States. The purpose of campaign finance regulation is to reduce or eliminate corruption. Congress has enacted substantial legislation for this purpose, yet corruption flourishes. This paper suggests that the campaign finance laws fail to take into account the actual decisionmaking process of a legislator contemplating a corrupt act. By diagramming that process, this paper demonstrates that the legislation, which focuses on limiting the size of individual campaign contributions, actually increases the likelihood of corruption. An understanding of the decisionmaking process points …

The Supreme Courts: Did 9/11/2001 Accelerate Their Sanctioning The Constitutionality Of Criminalizing Suspicion?, Dannye Holley

Dannye Holley

No abstract provided.

Originalism & Early Civil Search Statutes: Searches & The Misunderstood History Of Suspicion & Probable Cause, Fabio Arcila

Fabio Arcila Jr.

Originalist analyses of the Framers’ views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated. What attention has been paid, primarily as part of what I term the “conventional account,” has it that the Framers were divided about how accessible search remedies should be. This article explains why this conventional account is mostly wrong, and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law.

In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the …

The Yukos War: The Five Year Anniversary, Dmitry Gololobov

Dmitry Gololobov

No abstract provided.

California's Dueling Harmless Error Standards: Approaches To Federal Constitutional Error In Civil Trials And Establishing The Proper Test For Dependency, Meehan Rasch

Meehan Rasch

For forty years, California appellate courts generally have applied one discrete harmless error test for federal constitutional error in criminal cases and another for civil proceedings. In appeals from convictions in California state criminal cases, errors rising to a federal constitutional dimension are governed by the standard of Chapman v. California, which requires that these errors be proven by the state to be harmless beyond any reasonable doubt. The more lenient standard (for the trial court) of People v. Watson, which holds errors of state law and procedure harmless unless there is a reasonable probability that such error prejudiced the …

Criminal Procedure: The Investigative Process, David Rudstein

David S Rudstein

No abstract provided.

Teaching Rape: Some Reflections On Pedagogy, Michelle Dempsey

Michelle Madden Dempsey

This short essay, which discusses the difficulties of teaching sexual offences, was written for the Oxford Law Society and published in the student run magazine, The Verdict, in Trinity Term 2007.

The Sounds Of Silence: Reconsidering The Right To Remain Silent Under Miranda, Marcy S. Strauss

Marcy S. Strauss

In Miranda v. Arizona, the Supreme Court required that prior to any custodial interrogation a suspect must be informed that he has the right to remain silent and the right to an attorney and that no interrogation can occur until the suspect waives these rights. Although these protections seem on first blush to effectively empower a suspect to choose whether to speak to the police, many have deemed Miranda a ‘spectacular failure.’” There are numerous critics of the Miranda decision and its progeny on a variety of levels, but what has received too little attention is whether the most basic …

Establishing Separate Criminal And Civil Evidence Codes, John J. Capowski

John J. Capowski

The Case For Civil Forfeiture: Why In Rem Proceedings Are An Essential Tool For Recovering The Proceeds Of Crime, Stefan D. Cassella

Stefan D Cassella

The article outlines the reasons why a purely in personam asset forfeiture system that relies on a criminal conviction for the recovery of criminal proceeds is inadequate, and why governments implementing asset forfeiture schemes should make civil in rem forfeiture part of the legislative program.