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Criminal Law

2021

Institution
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Full-Text Articles in Law

Submission Of Amicus Curiae Observations In The Case Of The Prosecutor V. Dominic Ongwen, Erin Baines, Kamari M. Clarke, Mark A. Drumbl Dec 2021

Submission Of Amicus Curiae Observations In The Case Of The Prosecutor V. Dominic Ongwen, Erin Baines, Kamari M. Clarke, Mark A. Drumbl

Scholarly Articles

The important questions laid out by the Appeals Chamber in this case highlight the need for the proper delineation and interplay between mental illness and criminal responsibility under international law. Specifically, this case represents a watershed moment for the Appeals Chamber to set a framework for adjudicating mental illness in the context of collectivized child abuse and trauma. This is especially true for former child soldiers who occupy both a victim and alleged perpetrator status.


Amicus Curiae Observations By Public International Law & Policy Group, Milena Sterio, Michael P. Scharf, Paul R. Williams Dec 2021

Amicus Curiae Observations By Public International Law & Policy Group, Milena Sterio, Michael P. Scharf, Paul R. Williams

Law Faculty Briefs and Court Documents

The amicus brief argues that in a case where the defendant alleges a ground excluding criminal responsibility (an affirmative defense), such as mental illness or duress, the defendant has an evidentiary burden to produce some evidence to support his/her claim of mental illness or duress, but that the prosecution retains the legal burden of proof to establish the defendant's responsibility beyond reasonable doubt.

“This ruling will have repercussions for future cases where the defendant asserts a mental illness or duress affirmative defense. Depending on how the ICC decides, future defendants will have to meet a specific evidentiary (or legal) burden …


Current Complications In The Law On Myths And Stereotypes, Lisa Dufraimont Dec 2021

Current Complications In The Law On Myths And Stereotypes, Lisa Dufraimont

Articles & Book Chapters

Myths and stereotypes represent an ongoing problem in Canadian sexual assault trials. Often, and paradigmatically, defence lawyers and trial judges rely on discredited sexist assumptions to the prejudice of female sexual assault complainants. However, a review of the recent appellate case law reveals many cases that do not fit this paradigm. Complications that have arisen include stereotypes about men or accused persons, legitimate defence arguments misidentified as stereotypes, close cases where reasonable people disagree about whether stereotypes have been invoked, and prejudicial forms of reasoning based other axes of discrimination. This paper surveys these developments and assesses an attempt by …


Suspicionless Policing, Julian A. Cook Dec 2021

Suspicionless Policing, Julian A. Cook

Scholarly Works

The tragic death of Elijah McClain—a twenty-three-year-old, slightly built, unarmed African American male who was walking home along a sidewalk when he was accosted by three Aurora, Colorado police officers—epitomizes the problems with policing that have become a prominent topic of national conversation. Embedded within far too many police organizations is a culture that promotes aggressive investigative behaviors and a disregard for individual liberties. Incentivized by a Supreme Court that has, over the course of several decades, empowered the police with expansive powers, law enforcement organizations have often tested—and crossed—the constitutional limits of their investigative authorities. And too often it …


The Ostensible (And, At Times, Actual) Virtue Of Deference, Anthony O'Rourke Nov 2021

The Ostensible (And, At Times, Actual) Virtue Of Deference, Anthony O'Rourke

Journal Articles

In Rethinking Police Expertise, Anna Lvovsky exposes how litigators leverage judicial understandings of police expertise against the government. The article is rich not only with descriptive insights, but also with normative potential. By rigorously analyzing the relationship between expertise and authority in specific cases, Professor Lvovsky offers guidance as to how judges and lawyers should factor a police officer’s expertise into an assessment of whether the officer’s conduct is lawful. This Response argues, however, that Rethinking Police Expertise’s normative potential is weakened by the sharp conceptual distinction it draws between judicial understandings of expertise as a “professional virtue” (which it …


Texas Heartbeat Act Poses Threat To The Future Of Abortion Access, Kodie Mcginley Nov 2021

Texas Heartbeat Act Poses Threat To The Future Of Abortion Access, Kodie Mcginley

GGU Law Review Blog

As the abortion debate in the United States has grown increasingly tense over the recent years, a newly enacted Texas law could lay the groundwork for a national trend of restrictive abortion laws. SB 8, also known as the Texas Heartbeat Act, was first signed by Texas Governor Greg Abbott in May 2021, and came into effect on September 1st. The Texas Heartbeat Act is not the only recent bill that attempts to challenge Roe v. Wade. In 2018, Mississippi passed the Gestational Age Act, which bans abortions after 15 weeks of pregnancy. The Texas Heartbeat Act is even …


Constitutional Rights In The Time Of Covid-19: Sf Public Defender Sues Sf Superior Court, Alleging Violations Of Detainees’ Sixth Amendment Rights, Golden Gate University School Of Law Nov 2021

Constitutional Rights In The Time Of Covid-19: Sf Public Defender Sues Sf Superior Court, Alleging Violations Of Detainees’ Sixth Amendment Rights, Golden Gate University School Of Law

GGU Law Review Blog

“One of the most oppressive things a state can do is to take away your freedom and then deny you what’s necessary to win it back,” said Manojar Raju, San Francisco Public Defender, during a rally held on the front steps of San Francisco’s Hall of Justice.

On September 14, 2021, Raju filed a lawsuit against the Superior Court of California and the city of San Francisco. The lawsuit alleges that the San Francisco Superior Court has been routinely violating citizens’ Sixth Amendment right to a speedy trial.

In fact, as of August 30, 2021, there are about 429 people …


Holistic Public Safety: Prosecutor-Led Reform Through Ab 1308, Gwen West Nov 2021

Holistic Public Safety: Prosecutor-Led Reform Through Ab 1308, Gwen West

GGU Law Review Blog

Prosecutors can promote safety in communities by approaching public safety holistically and by participating in legislative efforts to reform criminal justice. Some prosecutors in California did just that in 2021.


The First Step In Overhauling Criminal Justice? Abolish The Death Penalty, Rachel A. Van Cleave Oct 2021

The First Step In Overhauling Criminal Justice? Abolish The Death Penalty, Rachel A. Van Cleave

Publications

Since the killing of George Floyd by a police officer, many changes to criminal justice have been proposed and some have been enacted. However, none of these reforms will be meaningful unless and until we require the government to dismantle the laws and procedures that implement the death penalty, an inherently biased and horrific practice. The fact that the federal government and twenty-seven states still have the death penalty reveals an attitude that is diametrically counter to the mindset necessary to end mass incarceration.


Pulling Back The Curtain: A Follow-Up Report From The Aba Criminal Justice Section Women In Criminal Justice Task Force, Maryam Ahranjani Oct 2021

Pulling Back The Curtain: A Follow-Up Report From The Aba Criminal Justice Section Women In Criminal Justice Task Force, Maryam Ahranjani

Faculty Scholarship

In an era when women’s hard-fought and hard-earned participation in the workforce is in peril, the ABA Criminal Justice Section’s Women in Criminal Justice Task Force (TF) continues its groundbreaking work of documenting challenges in hiring, retention and promotion of women criminal lawyers. Pulling Back the Curtain follows up on the initial findings of the TF. The findings are published in the Berkeley Journal of Criminal Law and the ABA Criminal Justice magazine. This report describes the results of a subsequent survey of diverse criminal lawyers and judges conducted at the end of 2020. The survey posed questions related to …


The End Of Liberty, Adam J. Kolber Oct 2021

The End Of Liberty, Adam J. Kolber

Faculty Scholarship

No abstract provided.


Prosecutors, Ethics And The Pursuit Of Racial Justice, Roger Fairfax Oct 2021

Prosecutors, Ethics And The Pursuit Of Racial Justice, Roger Fairfax

Articles in Law Reviews & Other Academic Journals

The 2020 murder of George Floyd catalyzed a national reckoning on race, and scrutiny of barriers to racial justice, rightfully focused on policing. However, as this Symposium has demonstrated, it is also critical to interrogate the prosecutorial function, given the outsize role prosecutors play in the criminal legal system. Scholars and advocates have utilized a number of frames to explore a key topic of this symposium-the intersection between prosecutorial discretion, prosecutorial ethics, and racial inequity.'

Although the renewed interest in the prosecutor's role in the pursuit of racial justice raises many new questions and opportunities, the scaffolding for such work …


The Trial Preparation Procedures–Criminal, William Rhee, L. Richard Walker Oct 2021

The Trial Preparation Procedures–Criminal, William Rhee, L. Richard Walker

Law Faculty Scholarship

In an effort to provide scholarship immediately useful to the criminal trial advocate, this article proposes a detailed systems workflow to plan and coordinate preparing for federal criminal trials called the Trial Preparation Procedures–Criminal (or "TrialPrepPro–Criminal" for short). The TrialPrepPro–Criminal upon the Trial Preparation Procedures-Civil, expounded in an earlier article.

Although there is an abundance of anecdotal "learning from doing" trial preparation guidance, empirically testable "learning about doing" trial preparation guidance is rare. We present our TrialPrepPro to learn more about doing.

The TrialPrepPro are modeled after the battle-proven military decision-making process used, with modifications, by all U.S. military services, …


Who Gets To Make A Living? Street Vending In America, Joseph Pileri Oct 2021

Who Gets To Make A Living? Street Vending In America, Joseph Pileri

Articles in Law Reviews & Other Academic Journals

Street vending has long provided those at the margins of American society with the opportunity for economic advancement. A key segment of the informal economy, street vending has low barriers of entry and attracts entrepreneurs who lack the resources, ability, or desire to start brick-and-mortar businesses or work for someone else. Street vending also contributes to the vitality and safety of urban America.

Despite the pivotal role that street vending plays, cities around the country criminalize vending by treating the violation of street vending regulations as a criminal offense. Recent high-profile vendor arrests in New York City and Washington, DC …


Explaining Florida Man, Ira P. Robbins Oct 2021

Explaining Florida Man, Ira P. Robbins

Articles in Law Reviews & Other Academic Journals

"Florida Man" is a popular cultural phenomenon in which journalists report on Floridians'unusual (and often criminal) behavior, and readers relish in and share the stories, largely on social media. A meme based on Florida Man news stories emerged in 2013 and continues to capture people's attention nationwide. Florida man is one of the latest unique trends to come from the Sunshine State and contributes to Florida's reputation as a quirky place.

Explanations for Florida Man center on Florida'sPublic Records Law, which is known as one of the most expansive open records laws in the country. All states and the District …


Compensation For Frivolous Or Vexatious Prosecution, Benjamin Joshua Ong Oct 2021

Compensation For Frivolous Or Vexatious Prosecution, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

According to section 359(3) of the Criminal Procedure Code, an acquitted accused person may receive compensation if the prosecution was “frivolous or vexatious”. In Parti Liyani v Public Prosecutor, Singapore’s High Court – for the first time – comprehensively discussed what section 359(3) means and how it is to be applied. This article aims to outline and comment on the High Court’s decision, and to highlight several issues which may be explored in future.


"Hey, Hey! Ho, Ho! These Mass Arrests Have Got To Go!": The Expressive Fourth Amendment Argument, Karen Pita Loor Oct 2021

"Hey, Hey! Ho, Ho! These Mass Arrests Have Got To Go!": The Expressive Fourth Amendment Argument, Karen Pita Loor

Faculty Scholarship

The racial justice protests ignited by the murder of George Floyd in May 2020 constitute the largest protest movement in the United States. Estimates suggest that between fifteen and twenty-six million people protested across the country during the summer of 2020 alone. Not only were the number of protestors staggering, but so were the number of arrests. Within one week of when the video of George Floyd’s murder went viral, police arrested ten thousand people demanding justice on American streets, with police often arresting activists en masse. This Essay explores mass arrests and how they square with Fourth Amendment …


Rico Had A Birthday! A Fifty-Year Retrospective Of Questions Answered And Open, Randy D. Gordon Oct 2021

Rico Had A Birthday! A Fifty-Year Retrospective Of Questions Answered And Open, Randy D. Gordon

Faculty Scholarship

The Racketeer Influenced and Corrupt Organizations Act (RICO) came into the world in 1970, a time of great social upheaval that was accompanied by shifting attitudes towards both crime and civil litigation. From the outset, the statute’s complexity, ambiguity, and uncertain purpose have confounded courts and commentators. At least some doubts as to the statute’s meaning and application arise because it has criminal and civil components that subject it to the twin—yet antithetical—social impulses to be “tough on crime” while containing a perceived “litigation explosion.” In this Article, I situate RICO in this larger context and offer that context as …


Special Matters: Filtering Privileged Materials In Federal Prosecutions, Christina Frohock Oct 2021

Special Matters: Filtering Privileged Materials In Federal Prosecutions, Christina Frohock

Articles

This Article reviews the U.S. Department of Justice's toolbox for handling potentially privileged materials, with close attention to the evolution from filter teams to the Special Matters Unit in fraud prosecutions. Significant case opinions from the U.S. Courts of Appeals for the Fourth, Sixth, and Eleventh Circuits reveal the judiciary's diverse views on filter teams. The recent case of United States v. Esformes in the U.S. District Court for the Southern District of Florida, now on appeal to the Eleventh Circuit, illustrates how a filter team can fall short and draw unflattering attention to the Department of Justice. In the …


Reforming State Bail Reform, Shima Baughman, Lauren Boone, Nathan H. Jackson Oct 2021

Reforming State Bail Reform, Shima Baughman, Lauren Boone, Nathan H. Jackson

Utah Law Faculty Scholarship

We are waist-deep in the third wave of bail reform. Scholars, policy makers, and the public have realized that the short period of detention before trial creates ripple effects on a defendant’s judicial fate and has lasting impacts on our system of mass incarceration. Over 200 proposed bail bills are pending throughout the states. This is not the first period of bail reform in America—two previous waves of bail reform in the 1960s and 1980s have both ended in increased pretrial detention for defendants. Some of the recent efforts in the third wave of bail reform have also increased detention …


Proportionality, Constraint, And Culpability, Mitchell N. Berman Sep 2021

Proportionality, Constraint, And Culpability, Mitchell N. Berman

All Faculty Scholarship

Philosophers of criminal punishment widely agree that criminal punishment should be “proportional” to the “seriousness” of the offense. But this apparent consensus is only superficial, masking significant dissensus below the surface. Proposed proportionality principles differ on several distinct dimensions, including: (1) regarding which offense or offender properties determine offense “seriousness” and thus constitute a proportionality relatum; (2) regarding whether punishment is objectionably disproportionate only when excessively severe, or also when excessively lenient; and (3) regarding whether the principle can deliver absolute (“cardinal”) judgments, or only comparative (“ordinal”) ones. This essay proposes that these differences cannot be successfully adjudicated, and one …


Blameworthiness, Desert, And Luck, Mitchell N. Berman Sep 2021

Blameworthiness, Desert, And Luck, Mitchell N. Berman

All Faculty Scholarship

Philosophers disagree about whether outcome luck can affect an agent’s “moral responsibility.” Focusing on responsibility’s “negative side,” some maintain, and others deny, that an action’s results bear constitutively on how “blameworthy” the actor is, and on how much blame or punishment they “deserve.” Crucially, both sides to the debate assume that an actor’s blameworthiness and negative desert are equally affected—or unaffected—by an action’s results. This article challenges that previously overlooked assumption, arguing that blameworthiness and desert are distinct moral notions that serve distinct normative functions: blameworthiness serves a liability function (removing a bar to otherwise impermissible treatments), whereas desert serves …


Factors Associated With Police Shooting Mortality: A Focus On Race And A Plea For More Comprehensive Data, Justin Nix, John Shjarback Sep 2021

Factors Associated With Police Shooting Mortality: A Focus On Race And A Plea For More Comprehensive Data, Justin Nix, John Shjarback

College of Humanities and Social Sciences Faculty Scholarship

Objectives. To quantify nonfatal injurious police shootings of people and examine the factors associated with victim mortality. Methods. We gathered victim-level data on fatal and nonfatal injurious police shootings from four states that have such information publicly available: Florida (2009-14), Colorado (2010-19), Texas (2015-19), and California (2016-19). For each state, we examined bivariate associations between mortality and race/ethnicity, gender, age, weapon, and access to trauma care. We also estimated logistic regression models predicting victim mortality in each state. Results. Forty-five percent of these police shooting victims (N=1,322) did not die. Black-white disparities were more pronounced in nonfatal injurious police shootings …


R. C. Bissonnette And The (Un)Constitutionality Of Consecutive Periods Of Parole Ineligibility For A Life Sentence: Why The Qcca Got It Right And Why Section 745.51 Should Never Be Re-Written, Adelina Iftene Sep 2021

R. C. Bissonnette And The (Un)Constitutionality Of Consecutive Periods Of Parole Ineligibility For A Life Sentence: Why The Qcca Got It Right And Why Section 745.51 Should Never Be Re-Written, Adelina Iftene

Articles, Book Chapters, & Popular Press

This article reviews the constitutional arguments upheld by the QCCA in Bissonnette and weighs them against the challenges that trial judges have encountered in applying s. 745.51 since 2012. By drawing on a qualitative review of cases in which s. 745.51 has been applied, as well as Charter principles, sentencing case law, and international practices, this article posits that the QCCA was correct in its approach to s. 745.51, both in finding it unconstitutional and in finding that the provision should not be read down to render it constitutional. This article advances the central argument that, in the context of …


The Use Of Expert Opinion Evidence In Criminal Proceedings: An Updated Framework, Siyuan Chen, Zhi Jia Koh, Jian Wei Joel Soon Sep 2021

The Use Of Expert Opinion Evidence In Criminal Proceedings: An Updated Framework, Siyuan Chen, Zhi Jia Koh, Jian Wei Joel Soon

Research Collection Yong Pung How School Of Law

The 2012 amendments to the Evidence Act2 “significantly broadened the admissibility criteria for expert evidence”;3 at the same time, the judicial discretion to deny admissibility of relevant expert opinion evidence was also introduced. This article considers the key developments pre- and post-amendments, and in doing so provides an updated framework for prosecutors and defence counsel alike to admit and challenge expert opinion evidence in criminal proceedings. Since it complements earlier articles in this series on similar fact4 and hearsay evidence,5 readers are assumed to be broadly familiar with the features of the Evidence Act, such as its admissibility paradigm, the …


Sexual Assault Enablers, Institutional Complicity, And The Crime Of Omission, Amos N. Guiora Sep 2021

Sexual Assault Enablers, Institutional Complicity, And The Crime Of Omission, Amos N. Guiora

Utah Law Faculty Scholarship

Sex abuse, particularly of children, is a crime which any rational person would wish to prevent. However, when an individual’s loyalties and responsibilities to an institution put them at odds with preventing sex abuse, it is far too often the institution which takes precedence. This is the grim phenomenon of institutional complicity. It is a plague which, sadly, permeates institutions of all types, be it a school, hospital, sports team, church, military, or government agency. It also permeates countries as a global issue.

I have interviewed dozens of survivors who suffered under an abuser who was protected by an institution. …


Mr. X And Mr. Y Source Material: Finding Aid, Bethany Latham Aug 2021

Mr. X And Mr. Y Source Material: Finding Aid, Bethany Latham

Finding Aids

This collection contains photographs, a clipping file, notes, and newspaper articles pertaining to the murder investigation of a double homicide (known as the “Torso Murders”) that occurred in Calhoun County, Alabama, in 1959. In June 1959, a torso was discovered near Attalla, Alabama, and a day later, a second torso was found near Ashville, Alabama. The two unidentified bodies were designated Mr. X and Mr. Y; they were later identified as Lee and Emmett Harper, who had been living in a trailer on a farm in White Plains, Alabama. Viola Hyatt, daughter of the farmer on whose land the brothers …


Judicial Application Of Strict Liability Local Ordinances, Guyora Binder, Brenner Fissell Aug 2021

Judicial Application Of Strict Liability Local Ordinances, Guyora Binder, Brenner Fissell

Journal Articles

No abstract provided.


Minding Accidents, Teneille R. Brown Aug 2021

Minding Accidents, Teneille R. Brown

Utah Law Faculty Scholarship

Tort doctrine states that breach is all about conduct. Unlike in the criminal law, where jurors must engage in an amateur form of mindreading to evaluate mens rea, jurors are told that they can assess civil negligence by looking only at how the defendant behaved. But this is false. Foreseeability is at the heart of negligence—appearing as the primary tests for duty, breach, and proximate cause. And yet, we cannot ask whether a defendant should have foreseen a risk without interrogating what he subjectively knew, remembered, perceived, or realized at the time. In fact, the focus on actions in negligence …


The Time Is Overdue To Fix The Judicial Confirmation Process, Rachel A. Van Cleave, Sonia Bakshi Jul 2021

The Time Is Overdue To Fix The Judicial Confirmation Process, Rachel A. Van Cleave, Sonia Bakshi

Publications

Politics must not drive the decisions by those who serve as gatekeepers to justice for survivors of sexual violence. The #MeToo Movement has thoroughly exposed the many myths surrounding sexual violence, but as Professor Hill pointed out, many gatekeepers have yet to “get it.”