Law Commons^™

On The Perils Of Line-Drawing: Juveniles And The Death Penalty, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.

Symposium: Equality Versus Discretion In Sentencing, Ilene H. Nagel, Stephen Breyer, Terence Mccarthy

Articles by Maurer Faculty

No abstract provided.

Negotiated Pleas Under The Federal Sentencing Guidelines: The First Fifteen Months, Ilene H. Nagel, Stephen J. Schulhofer

Articles by Maurer Faculty

No abstract provided.

An Introduction To The American Criminal Justice Process, Jerold H. Israel

Book Chapters

A useful description of the American criminal justice process must begin by acknowledging that there is no single set of criminal justice procedures applied uniformly throughout this country. Variations exist both from jurisdiction to jurisdiction and from one type of case to another within the same jurisdiction. In our overview, we will take note of a few of the more significant variations, but our primary focus will be on the procedural pattern followed for most cases in most jurisdictions. In this section, we will briefly examine three structural elements that account for many of the variations in the process. If …

Are Twelve Heads Better Than One?, Phoebe C. Ellsworth

Articles

Few advocates of the jury system would argue that the average juror is as competent a tribunal as the averagejudge. Whatever competence the jury has is a function of two of its attributes: its number and its interaction. The fact that a jury must be composed of at least six people,' with different backgrounds, experiences, and perspectives, provides some protection against decisions based on an idiosyncratic view of the facts. Not only must the jury include at least six people, but they must be chosen in a manner that conforms to the ideal of the jury as representative of community …

The Fifth Amendment: If An Aid To The Guilty Defendant, An Impediment To The Innocent One, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

The fifth amendment's privilege not to answer, critics carp, insulates the guilty defendant from revealing his complicity. While this is true, ironically it also can shackle the innocent defendant from attempting to prove that another person committed the crime. If that other person asserts the fifth amendment in response to questions designed to substitute him for the defendant, the innocent defendant can neither surmount that person's assertion nor benefit therefrom.

Consider this set of facts. A murder is committed. Defendant, charged with the crime, has evidence that Witness killed the victim. The prosecution believes only one person committed the crime. …

Some Doubts Concerning The Selection Hypothesis Of George Priest, Douglas O. Linder

Faculty Works

No abstract provided.

Miranda Decision Revisited: Did It Give Criminals Too Many Rights?, Paul Marcus, Stephen J. Markman

Faculty Publications

No abstract provided.

The Prosecutor As "Minister Of Justice", Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Times have changed. Today, prosecutors are on top of the world. Their powers are enormous, and constantly reinforced by sympathetic legislatures and courts. The "awful instruments of the criminal law," as Justice Frankfurter described the system,1 are today supplemented with broad new crimes, easier proof requirements, heavier sentencing laws, and an extremely cooperative judiciary, from district and state judges, to the highest Court in the land.

In Search Of The Virtuous Prosecutor: A Conceptual Framework, Stanley Z. Fisher

Faculty Scholarship

Questions about the scope and content of the duty to "seek justice" pervade prosecutorial work. Prosecutors are required to serve in a dual role: they are both advocates seeking conviction and "ministers of justice." Observers have complained about a tendency on the part of prosecutors to prefer the former of these "schizophrenic" obligations to the latter. This is commonly described as a tendency to behave overzealously or according to a "conviction psychology. ' "

State Constitutional Protection For Defendants In Criminal Prosecutions, Paul Marcus

Faculty Publications

No abstract provided.

Postsentence Sentencing: Determining Probation Revocation Sanctions, Bradford Mank

Faculty Articles and Other Publications

Although procedural due process requirements govern the proof of a violation in a probation revocation hearing, judges exercise almost total discretion in deciding what sanctions to impose once a violation is established. These postsentence judgments can be as important as the initial sentencing. Sanctions for even minor probation violations can range from obligating a probationer to meet with his probation officer more frequently to executing a suspended prison sentence. The Supreme Court recognized in Morrissey v. Brewer that the choice of sanctions is often more complex than the proof of a violation. Principles must be developed to regulate postsentence sentencing. …

Broken Promises And Involuntary Confessions: May A State Introduce Incriminating Statements Made By A Defendant As A Result Of Promises In A Plea Bargain Agreement If The Defendant Breaches That Agreement?, Bradford Mank

Faculty Articles and Other Publications

There is a substantial constitutional question concerning whether admissions made pursuant to a plea bargain that the defendant has breached are admissible under the fifth amendment's privilege against compelled self-incrimination or the due process clauses of the fifth and fourteenth amendments. Courts have reached conflicting results in regard to whether such statements are voluntary.lo This Article argues that it is difficult to resolve whether such admissions are voluntary because courts have not provided a clear definition as to under what circumstances a confession is voluntary in accordance with the dictates of the fifth and fourteenth amendments.

Plea Bargaining And The Supreme Court, Loftus Becker

Faculty Articles and Papers

No abstract provided.

White V. State: And Now For Something Different, Susan Stuart, Richard Pitts

Law Faculty Publications

No abstract provided.

Sentencing The Mentally Retarded To Death: An Eighth Amendment Analysis, John H. Blume, David Bruck

Cornell Law Faculty Publications

Today, on death rows across the United States, sit a number of men with the minds of children. These people are mentally retarded. Typical of these individuals is Limmie Arthur, who currently is imprisoned at Central Correctional Institution in Columbia, South Carolina. Although Arthur is twenty-eight years old, all the mental health professionals who have evaluated him, including employees of the South Carolina Department of Corrections, agree he has the mental capacity of approximately a 10-year-old child. Arthur was convicted and sentenced to death for the murder of a neighbor. At his first trial, his court appointed attorneys did not …

Habeas Corpus Committee - Correspondence, Lewis F. Powell Jr.

Habeas Corpus Committee

No abstract provided.

Bright Line Seizures: The Need For Clarity In Determining When Fourth Amendment Activity Begins, Edwin J. Butterfoss

Faculty Scholarship

This Article proposes that the Mendenhall-Royer standard, as presently interpreted, should be discarded because it is unworkable and fails to strike the appropriate balance between the liberty interests of citizens and the interest of the state in combatting crime. The test is unworkable because the outcomes of cases turn on subtle factual distinctions unrelated to an individual's actual freedom to end an encounter with a police officer, making it difficult for police officers to apply the standard in the field and adjust their conduct accordingly. Moreover, the standard provides insufficient protection for an individual's rights by failing to consider the …

A Reply To Michael Goldsmith, Gerard E. Lynch

Faculty Scholarship

I am grateful for Professor Michael Goldsmith's response to my discussion of RICO. It is always gratifying to find that one's writings have stimulated thought and debate.

Professor Goldsmith's criticisms of my discussion come in three parts. First, he claims that I have misread the history of RICO's adoption. Second, he objects to my criticisms of its scope. Third, he argues that the statute as now drafted serves prosecutorial purposes that would not be captured by the proposals I make for its replacement. Professor Goldsmith's arguments are not persuasive.

Mistake In The Model Penal Code: A False False Problem, George P. Fletcher

Faculty Scholarship

No solution seems more gratifying to the modern theorist than to claim that an apparently serious problem is not really a problem at all. By branding nonfalsifiable propositions as nonsense, the Vienna circle of logical positivists discovered that the metaphysical concerns of others were really false problems. By ridding philosophy of false problems, Wittgenstein thought that he could let the fly escape from the bottle; he could release the philosophical spirit from its confounding constraints. Brainerd Currie brought this method to the law with his justly famous theory of false conflicts in the conflicts of laws. There was no need …

The Adverse Testimony Privilege: Time To Dispose Of A "Sentimental Relic", David Medine

Articles by Maurer Faculty

No abstract provided.

Review Essay. What Makes Rape A Crime?, Lynne N. Henderson

Articles by Maurer Faculty

No abstract provided.

Don't Be Cowed By Scientific Evidence: A Pretrial Primer For Prosecutors And Defense Attorneys, F. Thomas Schornhorst

Articles by Maurer Faculty

No abstract provided.

Prior Inconsistent Statements, H. Patrick Furman

Publications

No abstract provided.

Role Of The Criminal Defense Lawyer In Representing The Mentally Impaired Defendant: Zealous Advocate Or Officer Of The Court, Rodney J. Uphoff

Faculty Publications

This article examines a difficult question in the representation of mentally impaired criminal defendants: should counsel be obligated to inform the court of doubts about a client's competency to stand trial even though doing so may be contrary to the client's wishes or best interests? Professor Rodney J. Uphoff analyzes authorities that impose such an obligation on defense lawyers, including an American Bar Association Criminal Justice Standard and a recent decision of the Wisconsin Supreme Court, State v. Johnson. Uphoff concludes that these authorities needlessly undercut the mentally impaired defendant's right to zealous representation. He proposes an alternative ethical model …

Consequences Of Federalizing Criminal Law, Roger J. Miner '56

Criminal Law

No abstract provided.

The Right To Counsel Under Attack, David Rudovsky

All Faculty Scholarship

No abstract provided.

Legality And Discretion In The Distribution Of Criminal Sanctions, Paul H. Robinson

All Faculty Scholarship

The judicial system now responds to criminal conduct in two rather divergent steps. A judge or jury first determines if a defendant should be held liable for a criminal offense. If so, then the judge or jury goes on to choose a penalty. Precise rules, designed to ensure fairness and predictability, govern the first stage, liability assignment. In the second stage, sentencing, however, judges and juries exercise broad discretion in meting out sanctions. In this Article, Professor Robinson argues that both liability assignment and sentencing are part of a single process of punishing criminal behavior and should be made more …

Unpleasant Facts: The Supreme Court's Response To Empirical Research On Capital Punishment, Phoebe C. Ellsworth

Book Chapters

Slowly at first, and then with accelerating frequency, the courts have begun to examine, consider, and sometimes even require empirical data. From 1960 to 1981, for example, use of the terms "statistics" and "statistical" in Federal District and Circuit Court opinions increased by almost 15 times.1 Of course, citation rates indicate only that a topic is considered worthy of mention, not that it is taken seriously, or even understood. Nonetheless, in a number of areas, such as jury composition and employment discrimination, the courts have come to rely on empirical data as a matter of course.

In the last 25 …

Standards For Organizational Probation: A Proposal To The United States Sentencing Commission, John C. Coffee Jr., Richard Gruner, Christopher D. Stone

Faculty Scholarship

This proposal was prepared by the authors in their capacities as consultants to the United States Sentencing Commission. It has not been adopted or endorsed by the Commission. If adopted, the proposal would constitute Part D(2) of the Sentencing Commission's Organizational Sentencing Guidelines (to be continued in Chapter 8 of the Commission's Guidelines Manual).