Law Commons^™

Rule 3.8: The Not So Special Responsibilities Of Prosecutors, Ahmed M.T. Riaz

Ahmed M.T. Riaz

Prosecutors are obligated to fulfill responsibilities that stretch beyond the usual scope of duties retained by non-prosecuting attorneys. A broad generalization as to why such differences exist may be reasoned from the fact that a prosecutor is a government official, a position which necessarily carries a duty to “seek justice.” However, the differences may more specifically be categorized in four ways. First, because prosecutors are government officials, they are provided great access to government resources; second, prosecutors are subject to different legal obligations than any other type of attorney, such as being burdened by a reasonable doubt standard; third, the …

The Puzzle Of Delegated Revenge, Kenworthey Bilz

Kenworthey Bilz

Why should people ever be satisfied when a third party punishes in their name, as opposed to having the opportunity to exact revenge personally? When theories of delegated revenge are offered at all, they explain why a well-ordered society needs centralized punishment as a matter of practicality. But this doesn’t adequately explain why they actually the public actually prefers it, and why they accept some forms of delegated agents more than others. Moreover, these theories do not have a good explanation for why or when delegated revenge will fail to satisfy victims, nor when the state will indulge this preference, …

Equal Rights For Equal Rites?: Victim Allocution, Defendant Allocution, And The Crime Victims' Rights Act, Mary Margaret Giannini

Mary Margaret - Giannini

The federal Crime Victims’ Rights Act (CVRA) grants victims the right to be reasonably heard at sentencing. In the course of examining this right, courts and commentators have referenced the defendant’s analogous right of sentencing allocution as a model or benchmark for the victim’s sentencing right. However, beyond the invocation of the defendant’s corollary right, there has been little analysis of whether defendant allocution does in fact serve as a model for victim allocution. This piece examines with particularity how victim allocution under the CVRA is currently being practiced in the federal courts, and how that practice compares to defendant …

Fallibility + Unchecked Power = Trouble, C. Peter Erlinder

C. Peter Erlinder

No abstract provided.

Illegal Immigration And The Southwest Border District Courts, Thomas J. Bak

Thomas J. Bak

Abstract This paper examines the increase in immigration filings in federal district courts in the southwest United States during the period from 1993 through 2005, a time when the Border Patrol and U.S. Attorneys in southern California, Arizona, New Mexico, and Texas stepped up enforcement of U.S. immigration laws. It follows the shift in the tide of immigration cases from the Southern District of California (CA,S), eastward, as successive initiatives in different Border Patrol sectors continually diverted the flow of illegal immigrants. A mathematical model is used to show the strong correlation between immigration case filings and Border Patrol staffing, …

Crawford’S Aftershock: Aligning The Regulation Of Non-Testimonial Hearsay With The History And Purposes Of The Confrontation Clause, Fred O. Smith

Fred O. Smith Jr.

This Article explores what the purposes, history and text of the Confrontation Clause have to say about the admission of non-testimonial hearsay statements. Part I examines historical sources such as the common law near the Founding, as well as the text of the clause, and concludes that non-testimonial hearsay was one of the ills that the Confrontation Clause was designed to protect. Part I additionally proposes a two-tiered approach to interpreting the Confrontation Clause, in which testimonial statements receive the most vigorous form of constitutional scrutiny, but non-testimonial statements receive meaningful scrutiny as well. The United States Constitution is no …

Towards A Scientific Standard For The Admissibility And Evaluation Of Psychiatric Evidence In War Crimes Prosecutions, Matthew J. Madalo

Matthew J Madalo

"Towards a Standard for the Admissibility and Evaluation of Psychiatric Evidence in War Crimes Prosecutions" explores the nature and use of psychiatric/psychological defenses and evidence in war crimes prosecutions. Part I of the article focuses on the differing goals and overlapping concerns between psychiatry and the law. In the international criminal legal context, the discussion will center on the types of psychiatric evidence and defenses that have been used or are likely to be used in war crimes prosecutions. Part II analyzes the applicable ICTY, ICR and ICC Statutes, Rules of Procedure and Evidence, and relevant United States common law …

Why Judy Norman Acted In Reasonable Self-Defense: An Abused Woman And A Sleeping Man, Marina Angel

Marina Angel

The reasonable man has been replaced by the reasonable person, but that person still functions within legal doctrines conceived by men and interpreted to fit the facts of men's lives. To understand why it is sometimes reasonable for an abused woman to kill her abuser while he is asleep or otherwise incapacitated, basic criminal law doctrines do not have to be changed. They do, however, have to be applied to the facts of abused women's lives.

The issue of exit – why didn’t she leave – must be explained. Concepts of time – immediate, imminent, and cyclical – must be …

Changes In Modern Military Codes And The Role Of The Military Commander: What Should The United States Learn From This Revolution?, Victor M. Hansen

Victor M. Hansen

This article examines the renewed interest which legal scholars, courts, and practitioners are giving to military justice. In light of this heightened interest, there have been a number of calls to reform the Uniform Code of Military Justice. Specifically, there is pressure to change and reduce the role of the military commander in the justice system. This pressure for change comes in part due to the changes made in the military codes of the United Kingdom and Canada, two countries which share a common tradition with the United States. The overall effect of these changes has been to significantly reduce …

Correcting Native American Sentencing Disparity Post-Booker, Timothy J. Droske

Timothy J Droske

Native American criminal defendants are subject to disproportionately harsher sentences than similarly situated non-Indian defendants. This is due to the federal government’s exclusive criminal jurisdiction over Native Americans in Indian country for major crimes and the fact that federal sentences tend to be more severe than their state counterparts. Judges and commentators have proposed various means by which to reduce this disparity, but so far, all these proposals have either lacked the political capital to be enacted, or been frustrated by the rigidity of the Federal Sentencing Guidelines. The Supreme Court’s 2005 decision in United States v. Booker however, rendered …

The Name Is The Same, But The Facts Have Been Changed To Protect The Attorneys: Strickland, Judicial Discretion, And Appellate Decision-Making, Greg O'Meara,

Greg O'Meara,

The gap between historical events and the way courts recount them in appellate decisions is highlighted by the differences in fact descriptions offered in the same case: Strickland v. Washington. The Supreme Court’s majority decision ignores or recasts facts found in the lower courts in this case. Paul Ricoeur, the leading philosopher of narrative, provides a framework that explains how legal facts are malleable and subject to distortion in his work on non-fiction narratives. He lays out instabilities inherent in any use of language and then broadens his inquiry to show that the transition from the oral to the written …

From Incitement To Indictment? Prosecuting Iran's President For Advocating Israel's Destruction And Piecing Together Incitement Law's Emerging Analytical Framework, Gregory S. Gordon

Gregory S. Gordon

On October 25, 2005, at an anti-Zionism conference in Tehran, Iran's President, Mahmoud Ahmadinejad, called for Israel to "be wiped off the face of the map" -- the first in a series of incendiary speeches arguably advocating liquidation of the Jewish state. Certain commentators argue that these speeches constitute direct and public incitement to commit genocide. This Article analyzes these arguments by examining the nature and scope of recent groundbreaking developments in incitement law arising from the Rwandan genocide prosecutions. For the first time in the legal literature, the Article pieces together an analytical framework based on principles derived from …

What Can Booker Teach Us About Chevron?, Joshua L. Sohn

Joshua L. Sohn

Since 1984, courts have used the Chevron framework to review administrative agencies’ rules and regulations. However, there is an unresolved debate over how to determine when an agency interpretation of its governing statute is “reasonable” at Step 2 of Chevron. This article seeks to inform that debate by analogizing to an unlikely source: the Supreme Court’s 2005 opinion in United States v. Booker. Booker was a criminal sentencing case that may seem far removed from the interpretive question in Chevron. But the two cases are striking similar in the “reasonableness” standard that they impose on reviewing courts.

This article suggests …

The Insanity Of Mens Rea: Due Process And The Abolition Of The Insanity Defense, Jean K. Phillips, Rebecca E. Woodman

Jean K Phillips

The Insanity of the Mens Rea Model:

Due Process and the Abolition of the Insanity Defense.

Jean K. Gilles Phillips and Rebecca E. Woodman

Abstract

In the last 15 years a flurry of legislative activity has taken place as states have attempted to redefine the insanity defense. This article focuses on those states who chose not just to refine the definition of insanity, but to completely abolish it as an affirmative defense.

During the 2006 Supreme Court term many believed that the Court would answer the question of whether the Due Process Clause protects the right of the accused to …

Confronting The “Ongoing Emergency”: A Pragmatic Approach To Hearsay Evidence In The Context Of The Sixth Amendment, Ellen Liang Yee

ellen yee

The Supreme Court’s path breaking decision in Crawford v. Washington, 541 U.S 36 (2004), held that admission of an extrajudicial testimonial statement by an unavailable declarant-witness violates the Confrontation Clause unless the defendant has an opportunity to cross-examine the declarant. Unfortunately, the determination of admissibility for the trial court judge has not been simplified after Crawford. The role of the trial court judge has now shifted from determining the reliability of the hearsay evidence (as was required before Crawford) to a determination of the testimonial nature of the declarant’s statement. However, with some small exceptions, the Court in Crawford explicitly …

Contraindicated Drug Courts, Josh Eric Bowers

Josh Eric Bowers

Over the past two decades, drug treatment courts have gained traction as popular alternatives to the conventional war on drugs (and to its one-dimensional focus on incarceration). Specifically, the courts are meant to divert addicts from jails and prisons and into coerced treatment. Under the typical model, a drug offender enters a plea of guilty and is enrolled in a long-term outpatient treatment program that is closely supervised by the drug court. If the offender completes treatment, his plea is withdrawn and the underlying charges are dismissed. But, if he fails, he receives an alternative termination sentence. My premise is …

The Scarlet Letter Effect: The Adulterous Defendant On Trial For Spousal Murder, Elizabeth H. Matherne

Elizabeth H Matherne

“At the vary least, they should have put the brand of hot iron on Hester Prynne’s forehead.”

Hester Prynne and The Scarlet Letter conjure images of an outcast infinitely branded and burdened by infidelity. As the story model becomes increasingly accepted as the most accurate theory of the juror decision making process, some attorneys are carefully crafting their message to fit such iconic images. Others are being left behind with dire consequences to their clients. In my article, I highlight how one segment of criminal defendants, the Adulterous Defendant on Trial for Spousal Murder, is especially vulnerable to the abuse …

Comity Of Errors: When Federal Sentencing Guidelines Ignore State Law Decriminalizing Sentences, James A. Shapiro

James A. Shapiro

Many states have sentences called “diversionary dispositions” that are not supposed to count as convictions under state law. The purpose of these so-called diversionary dispositions is to give first-time offenders for relatively minor crimes such as shoplifting a chance to keep their criminal records, or “rap sheets,” clean. If they do not commit another crime during the period of the diversionary disposition, then they usually have the opportunity to erase, or “expunge,” the diversionary disposition from their record. But whether they expunge their record or not, the diversionary disposition is never supposed to count as a conviction under state law. …

Forensic Dna Phenotyping: Regulatory Issues, Bert-Jaap Koops, Maurice Schellekens

Bert-Jaap Koops

Forensic DNA phenotyping is an interesting new investigation method: crime-scene DNA is analyzed to compose a description of the unknown suspect, including external and behavioral features, geographic origin and perhaps surname. This method is allowed in some countries but prohibited in a few others. Most countries have not yet taken a stance on this. This article addresses the question to what extent this investigation method should be allowed. The relevant regulatory issues are analyzed: the right of people not to know what their DNA tells about propensities for diseases or other propensities, data protection and privacy, stigmatization and discrimination, and …

Procedural Path Dependence: Discrimination And The Civil-Criminal Divide, Julie C. Suk

Julie C Suk

Procedural path dependence occurs when the particular features of the procedural system which has been charged with enforcing a given legal norm determine the substantive path of that legal norm. This article shows how the limits of employment discrimination law in two different national contexts can be explained by procedural dynamics. In France, as in several European countries, employment discrimination law is enforced predominantly in criminal proceedings. French criminal procedure enables the discovery of information necessary to proving the facts of discrimination, whereas the limited nature of French civil procedure makes it impossible for such information to be revealed. As …

From State Of California V. Scott Peterson To State Of Utah V. Mark Hacking- Will More States Adopt Fetal Protection Laws? , April J. Walker

April J. Walker

No abstract provided.

Bullshitting The People: The Criminal Procedure Implications Of A Scatalogical Term, Andrew Taslitz

Andrew E. Taslitz

When, if ever, is it appropriate for the police to lie to members of the American People about their constitutional rights, mislead them about the rights' content, fail to mention them at all, or discourage their exercise? This paper seeks to answer that question by drawing on the philosophical literature on the nature and social value (or harm) of bullshit and on psychological research relevant to the same concept to craft what is ultimate a political position on the question.

An Informational Approach To The Mass Imprisonment Problem, Adam M. Gershowitz

Adam M. Gershowitz

The United States is plagued by the problem of mass imprisonment, with its prison population having risen by 500 percent in the last three decades. Because the overwhelming majority of criminal cases are resolved through plea bargaining, there is room for prosecutors to reduce mass imprisonment by exercising their wide discretion. At present, prosecutors likely do not give much consideration to the overcrowding of America’s jails and prisons when making their plea bargain offers. However, if prosecutors were regularly advised of such overcrowding they might offer marginally lower sentences across the board. For instance, a prosecutor who typically offers a …

Doctrine Formulation And Distrust, Toby J. Heytens

Toby J Heytens

Legal scholars exhaustively debate the substantive wisdom of Supreme Court decisions and the appropriate methods for interpreting legal texts, but rarely consider the more pragmatic need to craft rules that will be faithfully implemented by the lower court judges who have the last word in the overwhelming majority of cases. Political scientists, in contrast, invest tremendous effort seeking to determine whether lower courts “comply” with Supreme Court directives, but find themselves unable to explain why their own studies generally find high levels of compliance. This Article argues that part of the answer lies in the Court’s ability to craft legal …

Toward A Unified Theory Of Testimonial Evidence Under The Fifth And Sixth Amendments, Michael J.Z. Mannheimer

Michael J.Z. Mannheimer

There is an obvious parallel between the language of the Self-Incrimination Clause and that of the Confrontation Clause: the former forbids the government from forcing a criminal suspect to become a “witness against himself,” while the latter requires the government to allow a criminal defendant to confront the “witnesses against him.” The irresistible inference is that the word “witness” means the same thing in both Clauses. And, indeed, the Supreme Court has hinged the question of whether someone is a "witness" in both contexts on whether he or she has given "testimonial" evidence. Yet, at least at first blush, the …

The Art Of Malice, Bruce A. Antkowiak

Bruce A Antkowiak

Synopsis: The Art of Malice The Art of Malice seeks to synthesize history, poetry, psychology and the law of murder to expose a serious and fundamental error in the criminal justice system. This error occurs in the most serious kind of case (criminal homicide) and at the critical moment of that case when the jury looks to the judge to advise them on the law they must apply. At that moment, they are misled into believing that they may infer the wonderfully complex concept of malice from the mere fact that the killer used a deadly weapon to commit the …

Throwing Away The Key: An Examination Of New York's Sex Offender Civil Commitment Law, Joseph E. Fahey

Joseph E Fahey

This article examines New York's newly enacted sex offender civil commitment law entitled"Sex Offenders Requiring Civil Commitment or Supervision." It examines the statute in detail, commenting on its various statutory and constiutional defeciencies, as well as its potential impact on the New York State Unified Court System.

Responding To The Model Penal Code Sentencing Revisions: Tips For Early Adopters And Power Users, Michael H. Marcus

Michael H Marcus

The foundational portions of the Model Penal Code sentencing revision are now firmly in place. Several states have begun considering adopting them without awaiting the final revision of that Code. The revision offers little beyond sentencing guidelines as improvements to the 1962 Code, which is the basis of most states’ criminal codes. The revision suffers from major flaws that dwarf the modest benefits it may offer: It enshrines just deserts as not only a limitation for sentencing, but also as an adequate performance measure, essentially encouraging all to forgo any accountability for achieving public safety or any of the other …

But Did They Listen?, Robert Blecker

robert blecker

BUT DID THEY LISTEN? Instructed by the state legislature to consider all aspects of the death penalty, invited to propose appropriate legislation, the New Jersey Death Penalty Study Commission’s final report nearly unanimously urges abolition with life without parole as a substitute. Apparently unbiased in its approach and thorough in its deliberation, the Commission’s final report distorts the evidence, shows a consistent anti-retributive bias, and worst of all, ignores basic well-established perspectives framing the great debate.

The Art Of Malice, Bruce A. Antkowiak

Bruce A Antkowiak

The Art of Malice seeks to synthesize history, poetry, psychology and the law of murder to expose a serious and fundamental error in the criminal justice system. This error occurs in the most serious kind of case (criminal homicide) and at the critical moment of that case when the jury looks to the judge to advise them on the law they must apply. At that moment, they are misled into believing that they may infer the wonderfully complex concept of malice from the mere fact that the killer used a deadly weapon to commit the crime. This instruction betrays the …