Law Commons^™

The Death Penalty And The Fifth Amendment, Joseph Blocher

Northwestern University Law Review

Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?

Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant to …

Paved With Good Intentions: Title Ix Campus Sexual Assault Proceedings And The Creation Of Admissible Victim Statements, Sara F. Dudley

Golden Gate University Law Review

This Comment argues that campuses should, in the course of their Title IX proceedings, ensure that anyone who takes a potentially admissible statement from a survivor has received trauma-informed interview training. Trauma-informed interviewing acknowledges the physiological effect of trauma on survivors, the impact that it can have on their ability to recall facts and details, and the limits and possibilities of obtaining information from such witnesses. In addition, campuses should limit the number of individuals who take statements from survivors and record the victim’s statements. These improvements will create statements of higher evidentiary quality. It will also mitigate the emotional …

Waiver Of Immunity - Public Officials, Robert E. Parella

The Catholic Lawyer

No abstract provided.

The Choice Is (Not) Yours: Why The Sec Must Further Amend Its Rules Of Practice To Increase Fairness In Administrative Proceedings, Madeline Ilibassi

Brooklyn Journal of Corporate, Financial & Commercial Law

The Securities and Exchange Commission (SEC) plays an extremely important role within the securities industry—it oversees the financial markets, protects consumers, and maintains market efficiency. One of the most important (and recently one of most criticized) responsibilities of the SEC is its duty to enforce the securities laws and punish violators. During the past two decades, and especially after the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, the SEC’s Division of Enforcement has grown substantially and has utilized administrative enforcement proceedings at an increasing rate. However; this utilization has been occurring without any substantial …

The Antidemocratic Sixth Amendment, Janet Moore

Washington Law Review

Criminal procedure experts often claim that poor people have no Sixth Amendment right to choose their criminal defense lawyers. These experts insist that the Supreme Court has reserved the Sixth Amendment right to choose for the small minority of defendants who can afford to hire counsel. This Article upends that conventional wisdom with new doctrinal, theoretical, and practical arguments supporting a Sixth Amendment right to choose for all defendants, including the overwhelming majority who are indigent. The Article’s fresh case analysis shows the Supreme Court’s “no-choice” statements are dicta, which the Court’s own reasoning and rulings refute. The Article’s new …

A Legal And Ethical Puzzle: Defense Counsel As Quasi Witness, Elizabeth Slater

Fordham Law Review

The U.S. criminal justice system is built on the concept of an adversarial trial. The defense and prosecution present competing narratives to a neutral audience that judges whether the prosecution has proved its case beyond a reasonable doubt. In this context, defense counsel is expected to be a zealous advocate for the defendant, providing the most effective representation possible in light of the evidence presented by the government. However, there are occasions outside of trial where defense counsel’s traditional role changes and she is asked to disclose, not to the jury, but to the court, personal opinions and knowledge about …

Georgia's Safe Harbor Ruling For Affirmative Defenses In Criminal Cases Should Be Revisited, Ben W. Studdard, Michal A. Arndt

Mercer Law Review

The State has the entire burden of proving the defendant's guilt of the offense charged beyond a reasonable doubt, reads the instruction given to every jury empaneled to try a criminal case in Georgia. The defendant has no burden of proof at all. Where the evidence raises a defense, the burden remains with the State to negate or disprove that defense beyond a reasonable doubt. But those same Georgia citizens, when summoned to federal jury service, may hear a very different instruction: that the defendant, upon raising an affirmative defense, has the burden of proof as to that defense, by …

Introduction To The West Virginia Law Review Flawed Forensics And Innocence Symposium, Valena E. Beety

West Virginia Law Review

No abstract provided.

Why Arrest?, Rachel A. Harmon

Michigan Law Review

Arrests are the paradigmatic police activity. Though the practice of arrests in the United States, especially arrests involving minority suspects, is under attack, even critics widely assume the power to arrest is essential to policing. As a result, neither commentators nor scholars have asked why police need to make arrests. This Article takes up that question, and it argues that the power to arrest and the use of that power should be curtailed. The twelve million arrests police conduct each year are harmful not only to the individual arrested but also to their families and communities and to society as …

Getting Brady Right: Why Extending Brady V. Maryland’S Trial Right To Plea Negotiations Better Protects A Defendant’S Constitutional Rights In The Modern Legal Era, James M. Grossman

BYU Law Review

No abstract provided.

Plea Bargaining And Prosecutorial Motives, Charlie Gerstein

The University of New Hampshire Law Review

This Article argues that the structure of the plea-bargaining system—which the Supreme Court recently recognized “is the criminal justice system”—hinges on something previously unappreciated by scholars and unaddressed in criminal procedure doctrine: prosecutors’ motives. This Article addresses that problem by studying the prosecutor’s disclosure obligations when defendants plead guilty. Courts and commentators have been divided for years over whether Brady v. Maryland applies when defendants plead guilty. But the current split blinds us to more important, and more vexing, aspects of the problem. The fact is, there already is a disclosure obligation, albeit a hidden one. Armed with an …

Unconventional Methods For A Traditional Setting: The Use Of Virtual Reality To Reduce Implicit Racial Bias In The Courtroom, Natalie Salmanowitz

The University of New Hampshire Law Review

The presumption of innocence and the right to a fair trial lie at the core of the United States justice system. While existing rules and practices serve to uphold these principles, the administration of justice is significantly compromised by a covert but influential factor: namely, implicit racial biases. These biases can lead to automatic associations between race and guilt, as well as impact the way in which judges and jurors interpret information throughout a trial. Despite the well-documented presence of implicit racial biases, few steps have been taken to ameliorate the problem in the courtroom setting. This Article discusses the …

Innocent Suffering: The Unavailability Of Post-Conviction Relief In Virginia Courts, Kaitlyn Potter

University of Richmond Law Review

This comment examines actual innocence in Virginia: the progress it has made, the problems it still faces, and the possibilities for reform. Part I addresses past reform to the system, spurred by the shocking tales of Thomas Haynesworth and others. Part II identifies three of the most prevalent systemic challenges marring Virginia's justice system: (1) flawed scientific evidence; (2) the premature destruction of evidence; and (3) false confessions and guilty pleas. Part III suggests ways in which Virginia can, and should, address these challenges to ensure that the justice system is actually serving justice.

Criminal Law And Procedure, Aaron J. Campbell

University of Richmond Law Review

No abstract provided.

Foreword, Deborah W. Denno

Fordham Law Review

This Foreword provides an overview of Criminal Behavior and the Brain: When Law and Neuroscience Collide, a symposium hosted by the Fordham Law Review and cosponsored by the Fordham Law School Neuroscience and Law Center. While the field of neuroscience is vast—generally constituting “the branch of the life sciences that studies the brain and nervous system”— this symposium focused on the cutting-edge ties between neuroscience evidence and the different facets of criminal law. Such an intersection invited commentary from an expert group on a wide span of topics, ranging from the historical underpinnings between law and neuroscience to the …

Correctional Change Through Neuroscience, Arielle R. Baskin-Sommers, Karelle Fonteneau

Fordham Law Review

Currently, the U.S. criminal justice system is under intense scrutiny. High- profile cases question the appropriateness of specific types of evidence, decision making in sentencing, and the treatment of convicted offenders. Clearly, these issues are not new. And, as has been historically the case, the justice system looks toward science for assistance in addressing and redressing problems with the delivery of justice.

How Prosecutors And Defense Attorneys Differ In Their Use Of Neuroscience Evidence, Deborah W. Denno

Fordham Law Review

Much of the public debate surrounding the intersection of neuroscience and criminal law is based on assumptions about how prosecutors and defense attorneys differ in their use of neuroscience evidence. For example, according to some commentators, the defense’s use of neuroscience evidence will abdicate criminals of all responsibility for their offenses. In contrast, the prosecution’s use of that same evidence will unfairly punish the most vulnerable defendants as unfixable future dangers to society. This “double- edged sword” view of neuroscience evidence is important for flagging concerns about the law’s construction of criminal responsibility and punishment: it demonstrates that the same …

A Glimpse Inside The Brain’S Black Box: Understanding The Role Of Neuroscience In Criminal Sentencing, Bernice B. Donald, Erica Bakies

Fordham Law Review

This Article begins by discussing what neuroscience and the smaller associated field of study, neuropsychology, are and what they can tell us about an individual. It then recounts a brief history of sentencing in the United States. Additionally, it expounds on how the legal system currently utilizes neuroscience in the courts, noting specifically the ways in which neuroscience can be presented during the sentencing phase of trial. Finally, it discusses the use of neuroscience as a mitigating factor during sentencing and how judges can use neuroscience to combat their implicit biases.

Can Neuroscience Help Predict Future Antisocial Behavior?, Lyn M. Gaudet, Jason P. Kerkmans, Nathaniel E. Anderson, Kent A. Kiehl

Fordham Law Review

Part I of this Article reviews the tools currently available to predict antisocial behavior. Part II discusses legal precedent regarding the use of, and challenges to, various prediction methods. Part III introduces recent neuroscience work in this area and reviews two studies that have successfully used neuroimaging techniques to predict recidivism. Part IV discusses some criticisms that are commonly levied against the various prediction methods and highlights the disparity between the attitudes of the scientific and legal communities toward risk assessment generally and neuroscience specifically. Lastly, Part V explains why neuroscience methods will likely continue to help inform and, ideally, …

Neuroscience And Sentencing, Nancy Gertner

Fordham Law Review

This symposium comes at a propitious time for me. I am reviewing the sentences I was obliged to give to hundreds of men—mostly African American men—over the course of a seventeen-year federal judicial career. As I have written elsewhere, I believe that 80 percent of the sentences that I imposedwereunfair,unjust,anddisproportionate. EverythingthatIthought was important—that neuroscientists, for example, have found to be salient in affecting behavior—was irrelevant to the analysis I was supposed to conduct. My goal—for which this symposium plays an important part—is to reevaluate those sentences now under a more rational and humane system, this time at least informed by …

A Perspective On The Potential Role Of Neuroscience In The Court, Ruben C. Gur, Oren M. Gur, Arona E. Gur, Alon G. Gur

Fordham Law Review

This Article presents some lessons learned while offering expert testimony on neuroscience in courts. As a biomedical investigator participating in cutting-edge research with clinical and mentoring responsibilities, Dr. Ruben Gur, Ph.D., became involved in court proceedings rather late in his career. Based on the success of Dr. Gur and other research investigators of his generation, who developed and validated advanced methods for linking brain structure and function to behavior, neuroscience findings and procedures became relevant to multiple legal issues, especially related to culpability and mitigation. Dr. Gur found himself being asked to opine in cases where he could contribute expertise …

When Empathy Bites Back: Cautionary Tales From Neuroscience For Capital Sentencing, Sheri Lynn Johnson, Amelia Courtney Hritz, Caisa Elizabeth Royer, John H. Blume

Fordham Law Review

This Article examines the implications of emerging neuroscientific findings regarding empathy for capital trials. We have approached this task with caution because neuroscientists’ understanding of the human brain is still evolving. As with any new field, if neuroscience is completely trusted before it is thoroughly tested, there is a risk of embracing the new phrenology. Given the state of the research, our advice to defense lawyers is quite modest, but we believe that there are some important lessons for lawyers, judges, legislators, and other stakeholders in the capital punishment system.

Seeing Voices: Potential Neuroscience Contributions To A Reconstruction Of Legal Insanity, Jane Campbell Moriarty

Fordham Law Review

Part I of this Article explains the insanity defense in the United States. Next, Part II discusses some of the brain-based research about mental illness, focusing on schizophrenia research. Then, Part III looks at traumatic brain injury and the relationship among injury, cognition, and behavior. Finally, Part IV explains how a new neuroscience-informed standard might better inform our moral decision making about legal insanity.

Neuroscience And The Civil/Criminal Daubert Divide, Erin Murphy

Fordham Law Review

This Article speculates on the course of neuroscience-as-proof with an eye toward the actual admissibility standards that will govern the acceptance of such evidence by courts, not just as a matter of formal law but also as a function of historical custom. Given the legal system’s spotty record with scientific evidence—which is to say, both the demonstrated willingness of the system to admit unproven “science” or to exclude evidence despite a seemingly adequate scientific foundation—the trajectory of neuroscience in the courts cannot be predicted simply by asking about its scientific legitimacy in the abstract. Rather, an observer must ponder whether …

The Overlooked History Of Neurolaw, Francis X. Shen

Fordham Law Review

In this Article, I argue that our field should more readily acknowledge that there is a history to law and neuroscience. A central challenge is whether, and how, we will learn from this history. I do not endeavor here to provide a comprehensive history of brain science and law but rather to highlight a series of four important, yet often overlooked, “moments.” These moments are (1) foundational medico-legal dialogue in the nineteenth and early twentieth centuries, (2) the introduction of electroencephalography evidence into the legal system in the mid- twentieth century, (3) the use of psychosurgery for violence prevention in …

Too Sick To Be Executed: Shocking Punishment And The Brain, Joel Zivot

Fordham Law Review

Capital punishment, to be lawfully delivered, must occur without needless cruelty. Cruelty, defined in the setting of punishment, will naturally evolve with the maturation of civil society. Cruel punishment will always be a relative standard, and punishment cannot exceed what is morally shocking. In the setting of public executions, observers and victims share an aspect of the experience of punishment. The inmate has little opportunity to evaluate and report back on cruelty in the moments before death. Once dead, the inmate is necessarily silent on the matter. Empathy allows observers to evaluate punishment as cruel or not. Attempts by the …

Neuroscience And Criminal Law: Have We Been Getting It Wrong For Centuries And Where Do We Go From Here?, Elizabeth Bennett

Fordham Law Review

Moral responsibility is the foundation of criminal law. Will the rapid developments in neuroscience and brain imaging crack that foundation—or, perhaps, shatter it completely? Although many scholars have opined on the subject, as far as I have discovered, few come from a front-line perspective.

Young Adulthood As A Transitional Legal Category: Science, Social Change, And Justice Policy, Elizabeth S. Scott, Richard J. Bonnie, Laurence Steinberg

Fordham Law Review

This Article seeks to advance discussions about the potential implications for justice policy of recent neuroscientific, psychological, and sociological research on young adults. In doing so, we emphasize the importance of not exaggerating either the empirical findings or their policy relevance. The available research does not indicate that individuals between the ages of eighteen and twenty are indistinguishable from younger adolescents in attributes relevant to criminal offending and punishment. Thus, we are skeptical on both scientific and pragmatic grounds about the merits of the proposal by some advocates that juvenile court jurisdiction should be categorically extended to age twenty-one. But …

Cops On Trial: Did Fourth Amendment Case Law Help George Zimmerman’S Claim Of Self-Defense?, Josephine Ross

Seattle University Law Review

When police kill unarmed civilians, prosecutors and grand juries often decline to bring criminal charges. Even when police officers are indicted, they are seldom convicted at trial. There are many reasons why police are rarely convicted for violent acts. Commentators have criticized the inherent conflict of interest for prosecutors who decide whether to bring charges and the fact that police are investigating their own. However, this article considers another way that police may be treated differently than other people suspected of committing violent crimes. The Fourth Amendment, designed to protect civilians from overzealous officers, now helps insulate police suspected of …

Incomplete Sentences: Hobby Lobby’S Corporate Religious Rights, The Criminally Culpable Corporate Soul, And The Case For Greater Alignment Of Organizational And Individual Sentencing, Kenya J.H. Smith

Louisiana Law Review

The article explores the history and policies that explain the disparate sentencing treatment of organizations and individuals under the Sentencing Reform Act of 1984 and attendant sentencing guidelines. It reports the Supreme Court's recognition of a business corporation's religious rights in the case "Burwell v. Hobby Lobby Stores, Inc."