Law Commons^™

Torture, Impunity, And The Need For Independent Prosecutorial Oversight, Fran Quigley

Fran Quigley

When executive branch misconduct is alleged, an inherent conflict of interest is presented by investing prosecutorial discretion in a U.S. Attorney General appointed by, and serving at the pleasure of, the President.

Various commentators, including Justice Antonin Scalia, Professor Stephen Carter, and the many critics of the former independent counsel statute, have posited that this conflict will be overcome by checks on executive power provided by the legislative branch, the judiciary, and political pressure.

That sanguine view of adequate executive branch oversight was put to the test when acts of torture were authorized by high-level members of the George W. …

Multiculturalism: A Challenge For Modern Criminal Justice. A Latin American Perspective, Raúl A. Carnevali

Raúl A. Carnevali

Increased migratory flow has given rise to the formation of culturally heterogeneous societies, and with it the discussion of multicultural states. Specifically, what we call multiculturalism is presenting new challenges for criminal law, as certain conduct may be evaluated differently according to the cultural context of the perpetrator. In order to determine the scope of multiculturalism and exactly how criminal law should deal with the issue, it is necessary to examine the theses that address the typical problems of cultural diversity, specifically, liberalism and communitarianism. One can then understand what is meant by “culturally motivated crimes” and whether the key …

Protect The Children: Challenges That Result In, And Consequences Resulting From, Inconsistent Prosecution Of Child Pornography Cases In A Technological World, Francis S. Monterosso

Francis S Monterosso

This Note untangles courts’ problems with the prosecution of child pornography defendants and aims to redirect attention to the social impact associated with these crimes. First, Part I provides an introduction to the Note and discusses the background of the Child Pornography Prevention Act. Secondly, Part II sets forth the evolution of the CPPA and its goals and shortcomings. Next, Part III further explains the development of child pornography prosecutions in the United States through two cases that illustrate the government’s desire to prosecute child pornography defendants.

Moreover, Part IV explains the difficulties courts have encountered in the prosecution of …

Evidence In International Criminal Trials: Lessons And Contributions From The Special Court For Sierra Leone, Patrick Matthew Hassan-Morlai

Patrick Matthew Hassan-Morlai

The general aim of this paper is to contribute to the discourse on the development of a system of international criminal justice. In so doing, this paper will pay attention to one aspect – rules of evidence – and examine its role in ensuring the rights to fair trial. The examination is limited to discussing offences relating to the jurisdiction ratione materiae of the SCSL contained in Articles 2-5 of the SCSL Statute.

Proportionality And Prosecutorial Discretion: Challenges To The Constitutionality Of Georgia’S Death Penalty Laws And Procedures Amidst The Deficiencies Of The State’S Mandatory Appellate Review Structure, Kristen M. Nugent

Kristen Nugent

Following the U.S. Supreme Court’s recent denial of certiorari in Walker v. Georgia—in which Justice Stevens and Justice Thomas expressed sharply divergent interpretations of the Court’s precedent regarding the importance of a thorough proportionality review to Georgia’s capital sentencing scheme—the Court seems poised to reexamine the constitutional implications of Georgia’s death penalty statute and the manner in which it is implemented. In anticipation of such an analysis, and in order to advocate that the U.S. Supreme Court clarify its position in a way that aligns with its longstanding tradition of requiring moderation in the infliction of death, this article dissects …

Criminal Insider Trading: Prosecution, Legislation, And Justification, Steven Brody

Steven Brody

Since the passage of the Securities Exchange Act of 1934, insider trading has been codified as a federal crime. For many years, however, civil cases were rare, and criminal prosecutions resulting in prison terms were nearly unheard of. Yet during the 1980’s, white collar crime—and insider trading in particular—became the subject of more public scrutiny than it had ever previously received. During this period, major developments occurred in the criminalization, prosecution, and sentencing of those who had committed securities fraud. High profile cases of inside traders like Ivan Boesky and Dennis Levine made targets of federal prosecutions household names and …

Conflicts Between U.S. And U.K. Corporate Privilege Laws, Don R. Berthiaume, Jeff Ansley

Don R Berthiaume

In this last year of the first decade of the 21st century, many of the signatories to the Organization for Economic Co-Operation and Development’s Convention on Combating Bribery of Foreign Officials (“OECD Convention”) are investigating and prosecuting cases involving the bribing of foreign officials for business purposes. They are doing so in conjunction with, and the support of, the United States. This is particularly true of the United Kingdom, which, after years of criticism from the OECD, is poised to adopt sweeping legislation that will give it the power to prosecute cases of foreign corruption "irrespective of whether the acts …

Shooting An Unarmed, Defenseless, Innocent Man: The Ineffectiveness Of The Entrapment Defense In Cyberspace, James E. Simmons

James E Simmons

No abstract provided.

Reconceptualizing Prosecutorial Misconduct Through Moral Disengagement Theory: A Social Cognitive Approach, Lawton P. Cummings

Lawton P Cummings

This Article argues that certain key structural factors within the prosecutorial system in the United States lead to prosecutorial misconduct by systematically encouraging “moral disengagement” in prosecutors. “Moral disengagement” refers to the social cognition theory developed by Albert Bandura and others, which identifies the mechanisms that operate to disengage an individual’s moral self-sanctions that would otherwise inhibit the individual from engaging in injurious conduct. Empirical studies have shown that a person’s level of moral disengagement, as a dispositional trait, is an accurate predictor of the person’s level of aggression and anti-social behavior, and that an individual’s level of moral disengagement …

Racial Profiling In America, April J. Walker

April J. Walker

No abstract provided.

Changing Tides: A Lesser Expectation Of Privacy In A Post 9-11world, Derek M. Alphran

derek m Alphran

Abstract: Derek Alphran, Associate Professor The War on Terror is changing society’s views about the Fourth Amendment. To what extent should the American public believe that privacy should be subject to greater restrictions for the greater good? Should the Katz test be viewed differently in light of concerns about the need for surveillance in light of post 9/11 domestic terrorist threats? What is a reasonable search under the today’s changing expectation of privacy. This article addresses these questions examines how the Katz standard has changed historically and examines whether the special needs exception should be expanded to include domestic terror …

Legalizing Marijuana: California's Pot Of Gold?, Michael Vitiello

Michael Vitiello

Legalizing Marijuana: California’s Post of Gold? Abstract: In early 2009, a member of the California Assembly put a bill in the hopper that would have legalized marijuana in an effort to raise tax revenue and to reduce prison costs. While the bill’s proponent withdrew the bill, he vowed to renew his efforts in the next term. Other prominent California officials, including Governor Schwarzenegger, have indicated their willingness to study legalization in light of California’s budget shortfall. For the first time in over thirty years, politicians are giving serious consideration to a proposal to legalize marijuana. But already, the public debate …

Racial Profiling -Separate And Unequal Keeping The Minorities In Line- The Role Of Law Enforcemnet In America, April J. Walker

April J. Walker

No abstract provided.

Disclosure Of Juror Identities To The Press: Who Will Speak For The Jurors?, Kenneth J. Melilli

Kenneth J. Melilli

In a sequence of rulings, the United States Supreme Court has determined that the public (and hence the press) enjoys a first amendment right of access to at least portions of a criminal trial. Several lower courts have read these decisions as mandating that the press be provided, upon application, with the names and addresses of jurors or even potential jurors. Once acquired, this information has been used to harass unwilling jurors in attempts to delve into jury deliberations. In almost every such case, the only real party in interest in opposition to the application of the press -- the …

Change Is Needed; How Latinos Are Affected By The United States Criminal Justice System, Christopher F. Bagnato

Christopher F. Bagnato

Latinos have been present in this country for centuries. They slowly have been making their mark in the communities of this country, usually seen but not really heard or noticed. Yet during the past thirty years the amount of Latino immigrants has skyrocketed. Census projections indicate that Latinos will be the biggest minority population in this county in the near future. The issues with discrimination of Latinos started on the streets with phrases like, “racial profiling” and “driving while brown,” and have moved into new places like the courtroom. Latinos have had to face not only the burden of prejudice …

Adverse Inferences About Adverse Inferences: Restructuring Juridical Roles For Responding To Evidence Tampering By Parties To Litigation, Dale A. Nance

Dale A. Nance

For at least two centuries, Anglo-American courts have responded to a party’s evidence tampering by allowing the opponent to argue to jurors that they should draw an adverse inference against the offending party in deciding the merits of the case. This Article argues that it is time that the use of such inferences, and invitations to draw them, be radically curtailed, not only because of the ambiguities and risks of prejudice that such inferences entail, which have long been noted, but more importantly because they involve a confusion of roles in which the jury is enlisted to participate in the …

The Law At War: Counterinsurgency Operations And The Use Of Indigenous Legal Institutions., Richard O. Morgan

Richard O. Morgan

Success in counterinsurgency campaigns requires the military to train, equip, and ultimately turn over responsibility for public safety to indigenous legal institutions. Nonetheless, the pursuit of military objectives through participation in indigenous legal systems presents many challenges, as pragmatic concerns of operational security and the use of intelligence as legal evidence must be reconciled with cultural differences and the weakness of indigenous legal institutions. This article argues, however, that such participation may be required under international law. Further, participation may help to legitimize counterinsurgency goals in the eyes of the local populace, and bring additional resources to military efforts. In …

An Act Of Resistence: Reconceptualizing Andrea Yates' Killing Of Her Children, Shelby A.D. Moore

Shelby A.D. Moore

The definition of domestic violence is broad and includes physical as well as psychological and sexual abuse. The legal system, however, gives considerably less attention to these latter forms of abuse. One reason for the relative neglect of these types of domestic abuse is the assumption that physical abuse causes more harm than do psychological and sexual abuse. In reality these forms of abuse may have a far greater impact on their victims. Apart from physical abuse, greater attention must be given to those who suffer on-going psychological and sexual abuse at the hand of a spouse or intimate partner. …

An Act Of Resistence: Reconceptualizing Andrea Yates' Killing Of Her Children, Shelby A.D. Moore

Shelby A.D. Moore

The definition of domestic violence is broad and includes physical as well as psychological and sexual abuse. The legal system, however, gives considerably less attention to these latter forms of abuse. One reason for the relative neglect of these types of domestic abuse is the assumption that physical abuse causes more harm than do psychological and sexual abuse. In reality these forms of abuse may have a far greater impact on their victims. Apart from physical abuse, greater attention must be given to those who suffer on-going psychological and sexual abuse at the hand of a spouse or intimate partner. …

An Act Of Resistence: Reconceptualizing Andrea Yates' Killing Of Her Children, Shelby A.D. Moore

Shelby A.D. Moore

The definition of domestic violence is broad and includes physical as well as psychological and sexual abuse. The legal system, however, gives considerably less attention to these latter forms of abuse. One reason for the relative neglect of these types of domestic abuse is the assumption that physical abuse causes more harm than do psychological and sexual abuse. In reality these forms of abuse may have a far greater impact on their victims. Apart from physical abuse, greater attention must be given to those who suffer on-going psychological and sexual abuse at the hand of a spouse or intimate partner. …

Too Little, Too Late? Why President Obama’S Well-Intentioned Reforms Of The Military Commissions May Not Be Enough To Save Them, John M. Bickers

John M. Bickers

This article argues that the Bush Administration made three critical choices that destined the commissions to failure: the relatively non-public nature of the commissions, the original possibility that they might rely on coerced testimony, and an unsettling focus on those whose offenses consisted of not being “proper” combatants. President Obama’s proposed reforms address the first issue in part, and the second completely, but the third not at all. Failure to repair fully these problems, the article suggests, will prevent meaningful use of the commissions to demonstrate to the world the deeds of al Qaeda. Without further reform, the military commissions …

Not The Crime But The Cover-Up: A Deterrence Based Rationale For The Premeditation-Deliberation Formula, Michael J.Z. Mannheimer

Michael J.Z. Mannheimer

Beginning with Pennsylvania in 1794, most American jurisdictions have, at one time or another, separated the crime of murder into two degrees based on the presence or absence of premeditation and deliberation. An intentional, premeditated, and deliberate murder is murder of the first-degree murder, while second-degree murder is committed intentionally but without premeditation or deliberation. The distinction was created in order to limit the use of the death penalty, which generally has been imposed only for first-degree murder.

Critics have attacked the premeditation-deliberation formula on two fronts. First, they have charged that the formula is imprecise as a measure of …

Music And Genocide: Harmonizing Coherence, Freedom And Nonviolence In Incitement Law, Gregory S. Gordon

Gregory S. Gordon

Can singing a song constitute incitement to genocide? A recent decision by the International Criminal Tribunal for Rwanda (ICTR) in the case of Hutu extremist pop singer Simon Bikindi said it can. But in convicting Bikindi, it failed to apply, much less develop, the incitement law framework it had established, albeit in a piecemeal fashion, through a string of prior opinions (most notably in the famous "Media Case"). That framework asks judges to consider the purpose, text, context, and relationship between the speaker and subject to determine if a speech constitutes criminal incitement. Critics have pointed to the test's piecemeal …

Imputed Liability For Supervising Prosecutors: Applying The Military Doctrine Of Command Responsibility To Reduce Prosecutorial Misconduct, Adam Gershowitz

Adam M. Gershowitz

Lawyers often refer to criminal litigation as a war between competing adversaries. Yet, one of the central tenets of the law of war – the doctrine of command responsibility – has not been applied to criminal litigation. Under the doctrine of command responsibility, military commanders are held responsible for the misconduct of their subordinates that they knew or should have known would occur. The purpose of the command responsibility doctrine is to ensure that supervisors develop an atmosphere of compliance by training subordinates to avoid misconduct. This article applies the doctrine of command responsibility to civilian prosecutors holding supervisory positions. …

Prioritizing Justice: Combating Corporate Crime From Task Force To Top Priority, Mary K. Ramirez

mary k ramirez

Inadequate law enforcement against corporate criminals appears to have created perverse incentives leading to an economic crisis – this time in the context of the subprime mortgage crisis. Prioritizing Justice proposes institutional reform at the Department of Justice in pursuing corporate crime. Presently, corporate crime is pursued nationally primarily through the DOJ Corporate Fraud Task Force and other task forces, the DOJ Criminal Division Fraud Section, and the individual U.S. Attorney’s Offices. Rather than a collection of ad hoc task forces that seek to coordinate policy among a vast array of offices and agencies, the relentless waves of corporate criminality …

Disclosure Of Juror Identities To The Press: Who Will Speak For The Jurors?, Kenneth J. Melilli

Kenneth J. Melilli

In a sequence of rulings, the United States Supreme Court has determined that the public (and hence the press) enjoys a first amendment right of access to at least portions of a criminal trial. Several lower courts have read these decisions as mandating that the press be provided, upon application, with the names and addresses of jurors or even potential jurors. Once acquired, this information has been used to harass unwilling jurors in attempts to delve into jury deliberations. In almost every such case, the only real party in interest in opposition to the application of the press -- the …

Stranger Than Dictum: Why Arizona V. Gant Compels The Conclusion That Suspicionless Buie Searches Incident To Lawful Arrests Are Unconstitutional, Colin Miller

Colin Miller

In its 1990 opinion in Maryland v. Buie, the Supreme Court held that as an incident to a lawful (home) arrest, officers can “as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” While this holding was actually dictum, thereafter courts categorically concluded that Buie authorizes suspicionless searches of sufficiently large spaces not only in arrest rooms, but also in rooms immediately abutting arrest rooms and connected to arrest rooms by hallways. Buie was one of three Supreme Court …

Norm Internalization Through Trials For Violations Of International Law: Four Conditions For Success And Their Application To Trials Of Detainees At Guantanamo Bay, Vijay M. Padmanabhan

Vijay M Padmanabhan

Norm internalization is an objective for trials for violations of international law, which seeks to use the trial to demonstrate to a target audience, usually the community of the defendant, the costs of violating international law, and the stigma of being a violator. The purpose of this exercise is to internalize in that audience a respect for international law and for the norm in question that drives the audience not to repeat the violation in the future. Some scholars have argued that this purpose should be the primary purpose behind international criminal trials. Others have argued that it should, at …

Rights Translation And Remedial Disequilibration In Constitutional Criminal Procedure, Jennifer E. Laurin

Jennifer E. Laurin

Criminal procedure rights are widely understood both as individual constitutional guarantees and as conduct-regulating norms, enforcement of which guides the behavior of criminal justice actors. This regulatory dynamic of constitutional criminal procedure flows from both criminal and civil litigation, and as a consequence criminal procedure rights are shaped and adjudicated in recursive remedial regimes. Little notice has been paid, however, to the fact that the contours of criminal procedure rights are not consonant across the criminal and civil remedial regimes. Instead, courts in civil actions reshape criminal procedure doctrine in a manner that erects new, conflicting, and often more lenient …

Making The Dogman Heel: Recommendations For Improving The Effectiveness Of Dogfighting Laws, Francesca Ortiz

Francesca Ortiz

Since Michael Vick’s arrest and conviction, federal, state and local governments have attempted to step up efforts at enforcing laws prohibiting dogfighting. However, because of biases held by some law enforcement personnel, prosecutors and judges as well as burdensome investigatory costs and evidentiary problems, enforcement of the laws is ineffective in many cases. This article discusses these issues and argues that, because of various social problems that are tied closely to dogfighting, continued efforts must be made to make prosecution of dogfighting more effective. To that end, the article makes recommendations to address the problems that hinder enforcement. Recommendations include …