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Articles 1 - 30 of 56
Full-Text Articles in Law
Delaware's Capital Jury Selection: Inadequate Voir Dire And The Problem Of Automatic Death Penalty Jurors, Adam M. Gershowitz
Delaware's Capital Jury Selection: Inadequate Voir Dire And The Problem Of Automatic Death Penalty Jurors, Adam M. Gershowitz
Faculty Publications
No abstract provided.
Practical Magic: A Few Down-To-Earth Suggestions For The New Sentencing Commission, Frank O. Bowman Iii
Practical Magic: A Few Down-To-Earth Suggestions For The New Sentencing Commission, Frank O. Bowman Iii
Faculty Publications
Most of the contributions to this outpouring of advice to the new Sentencing Commissioners have to do with the substance of the Guidelines. What follows here is far more prosaic - some suggestions not about what the Commission should do, but about how the Commission should work. I make these suggestions with some trepidation, recognizing the difficulty of the task the new members have undertaken. However, I hope the perspective of one who practiced before and after the Guidelines as a federal prosecutor, participated in the internal workings of the Commission as Special Counsel in 1995-96, and has been a …
High Crimes And Misdemeanors: Defining The Constitutional Limits On Presidential Impeachment, Frank O. Bowman Iii, Stephen L. Sepinuck
High Crimes And Misdemeanors: Defining The Constitutional Limits On Presidential Impeachment, Frank O. Bowman Iii, Stephen L. Sepinuck
Faculty Publications
This Article had its genesis in a statement by the authors submitted to the House Judiciary Committee during its proceedings regarding the impeachment of President Clinton. This final much expanded version appears after the conclusion of the Clinton impeachment proceedings in the Senate, and it is certainly informed by the course those proceedings took. Strictly speaking, however, this is not an article “about” the Clinton impeachment. Although this Article draws some conclusions from the treatment by the House and Senate of the fundamental allegations against President Clinton, it does not address in detail the specific facts underlying those allegations. The …
Section 7: Criminal Law And Procedure, Institute Of Bill Of Rights Law, William & Mary Law School
Section 7: Criminal Law And Procedure, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Formal Legal Truth And Substantive Truth In Judicial Fact-Finding – Their Justified Divergence In Some Particular Cases, Robert S. Summers
Formal Legal Truth And Substantive Truth In Judicial Fact-Finding – Their Justified Divergence In Some Particular Cases, Robert S. Summers
Cornell Law Faculty Publications
Truth is a fundamental objective of adjudicative processes; ideally, ‘substantive’ as distinct from ‘formal legal’ truth. But problems of evidence, for example, may frustrate finding of substantive truth; other values may lead to exclusions of probative evidence, e.g., for the sake of fairness. ‘Jury nullification’ and ‘jury equity’. Limits of time, and definitiveness of decision, require allocation of burden of proof. Degree of truth-formality is variable within a system and across systems.
The Jury And Scientific Evidence, Richard O. Lempert
The Jury And Scientific Evidence, Richard O. Lempert
Articles
Read court decisions and commentaries from 100, or evenfive years ago, and you will find that experts and scientific evidence were causing problems then just as they are causing problems now. I do not think that Daubert, Kumho Tire, or any change in a rule of evidence will keep expert scientific testimony from being a difficult area for the legal system. Yet we must still ask: "What are the best terms on which to deal with scientific experts, and how can weimprove the system?"
Insane Fear: The Discriminatory Category Of "Mentally Ill And Dangerous", Sherry F. Colb
Insane Fear: The Discriminatory Category Of "Mentally Ill And Dangerous", Sherry F. Colb
Cornell Law Faculty Publications
This article considers the constitutional and moral implications of the distinction the law draws between different classes of dangerous people, depending upon their status as mentally ill or mentally well. Those who are mentally well benefit from the right to freedom from incarceration unless and until they commit a crime. By contrast, dangerous people who are mentally ill are subject to potentially indefinite "civil" preemptive confinement.
In a relatively recent case, Kansas v. Hendricks, the United States Supreme Court upheld the post-prison civil confinement of Leroy Hendricks, a man who had served prison time after pleading guilty to child molestation. …
Departing Is Such Sweet Sorrow: A Year Of Judicial Revolt On "Substantial Assistance" Departures Follows A Decade Of Prosecutorial Indiscipline (Prosecution Law Symposium), Frank O. Bowman Iii
Departing Is Such Sweet Sorrow: A Year Of Judicial Revolt On "Substantial Assistance" Departures Follows A Decade Of Prosecutorial Indiscipline (Prosecution Law Symposium), Frank O. Bowman Iii
Faculty Publications
the first section of this essay is devoted to demonstrating the courts' errors. Nonetheless, considered together, these opinions are perhaps an understandable reflection of judicial unease with an important component of the federal sentencing system — the longstanding, but increasingly common, practice of making deals with criminal defendants to reduce their sentences in return for testimony against their accomplices. This Article's second section will consider the most common criticisms of the system of bargaining for testimony under the United States Sentencing Guidelines (the Guidelines) to determine whether Singleton and Sealed Case may be good policy even if they are bad …
Defending Substantial Assistance: An Old Prosecutor's Meditation On Singleton, Sealed Case, And The Maxfield-Kramer Report, Frank O. Bowman Iii
Defending Substantial Assistance: An Old Prosecutor's Meditation On Singleton, Sealed Case, And The Maxfield-Kramer Report, Frank O. Bowman Iii
Faculty Publications
This essay begins with a brief analysis of the panel and en banc opinions in Sealed Case and Singleton, and then turns to the more arresting question of whether the panel decisions were transitory aberrations or something more. Particularly if one considers Singleton and Sealed Case together with the Sentencing Commission's staff report on substantial assistance practice (the “Maxfield - Kramer Report”), it is difficult to escape the conclusion that unease with the current substantial assistance regime is growing. Unlike many observers, I view §5K1.1 as a very good thing, an invaluable prosecutorial tool against group criminality, but a tool …
Juries, Hindsight, And Punitive Damage Awards: Failures Of A Social Science Case For Change, Richard O. Lempert
Juries, Hindsight, And Punitive Damage Awards: Failures Of A Social Science Case For Change, Richard O. Lempert
Articles
In their recent Arizona Law Review article entitled What Juries Can't Do Well: The Jury's Performance As a Risk Manager,' Professors Reid Hastie and W. Kip Viscusi purport to show that juries are likely to do a poor job in setting punitive damages, largely because jurors cannot avoid the influence of what is called "hindsight bias," or the tendency to see the likelihood of an event higher in retrospect than it would have appeared before it happened. In particular, they argue that hindsight bias and other cognitive biases undermine the utility of jury-set punitive damage awards as risk management devices. …
The Globalisation Of Crime, Mark Findlay
The Globalisation Of Crime, Mark Findlay
Research Collection Yong Pung How School Of Law
As with many emergent themes in today's society, globalisation is simple and complex. Put simply, it is the collapsing of time and space; the process whereby through mass communication, multi-national commerce, internationalised politics, and transnational regulation we seem to be moving inexorably towards a single culture. The more complex interpretation of globalisation is as paradox - wherein there are as many pressures driving us in the direction of the common culture as those keeping us apart.
Reforming Juvenile Sentencing, Nora V. Demleitner
Judicial Politics, Death Penalty Appeals, And Case Selection: An Empirical Study, John H. Blume, Theodore Eisenberg
Judicial Politics, Death Penalty Appeals, And Case Selection: An Empirical Study, John H. Blume, Theodore Eisenberg
Cornell Law Faculty Publications
Several studies try to explain case outcomes based on the politics of judicial selection methods. Scholars usually hypothesize that judges selected by partisan popular elections are subject to greater political pressure in deciding cases than are other judges. No class of cases seems more amenable to such analysis than death penalty cases. No study, however, accounts both for judicial politics and case selection, the process through which cases are selected for death penalty litigation. Yet, the case selection process cannot be ignored because it yields a set of cases for adjudication that is far from a random selection of cases. …
Should Judges Take Seriously The Sentencing Commission's Standards For Accepting Plea Agreements?, David Yellen
Should Judges Take Seriously The Sentencing Commission's Standards For Accepting Plea Agreements?, David Yellen
Articles
No abstract provided.
The State Of Severity, Aaron J. Rappaport
Speaking Of Purposes, Aaron J. Rappaport
Refocusing The Burden Of Proof In Criminal Cases: Some Doubt About Reasonable Doubt, Lawrence Solan
Refocusing The Burden Of Proof In Criminal Cases: Some Doubt About Reasonable Doubt, Lawrence Solan
Faculty Scholarship
No abstract provided.
Prosecutorial Misconduct And Constitutional Remedies, Peter J. Henning
Prosecutorial Misconduct And Constitutional Remedies, Peter J. Henning
Law Faculty Research Publications
No abstract provided.
Crazy Reasons, Stephen J. Morse
Some Thoughts On The Conduct/Status Distinction, Sherry F. Colb
Some Thoughts On The Conduct/Status Distinction, Sherry F. Colb
Cornell Law Faculty Publications
No abstract provided.
The Fourth Circuit's "Double-Edged Sword": Eviscerating The Right To Present Mitigating Evidence And Beheading The Right To The Assistance Of Counsel, John H. Blume, Sheri Lynn Johnson
The Fourth Circuit's "Double-Edged Sword": Eviscerating The Right To Present Mitigating Evidence And Beheading The Right To The Assistance Of Counsel, John H. Blume, Sheri Lynn Johnson
Cornell Law Faculty Publications
Even before the sea change of Gideon v. Wainwright, the Supreme Court recognized not only an indigent’s right to the assistance of counsel in capital cases, but also his right to the effective assistance of counsel in capital cases. Since those auspicious beginnings, the Court has dramatically broadened the right to present mitigating evidence in the sentencing phase of a capital trial, thereby increasing the need for the guiding hand of counsel in capital sentencing. Thus, it is particularly tragic that the Fourth Circuit’s swiftly evolving approach to the prejudice prong of the ineffective assistance of counsel standard precludes …
The Role Of United States Federal Courts In Extradition Matters: The Rule Of Non-Inquiry, Preventive Detention And Comparative Legal Analysis, Rachel A. Van Cleave
The Role Of United States Federal Courts In Extradition Matters: The Rule Of Non-Inquiry, Preventive Detention And Comparative Legal Analysis, Rachel A. Van Cleave
Publications
This paper argues that applying the rule of non-inquiry to the issue of whether the requested person has been charged is analytically incorrect where the relevant treaty defines as extraditable persons who have been charged or convicted of certain offenses, thus requiring a judicial determination as to whether the person requested has been charged as part of the initial inquiry into extraditability. By contrast, the rule of non-inquiry is typically used to reject arguments of persons who are otherwise extraditable. This issue has not received much analysis perhaps because federal courts are reluctant to look beyond an arrest warrant issued …
Prosecutorial Misconduct In Grand Jury Investigations, Peter J. Henning
Prosecutorial Misconduct In Grand Jury Investigations, Peter J. Henning
Law Faculty Research Publications
No abstract provided.
Defense Discovery In White Collar Criminal Prosecutions, Peter J. Henning
Defense Discovery In White Collar Criminal Prosecutions, Peter J. Henning
Law Faculty Research Publications
No abstract provided.
Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports
Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports
Journal Articles
When Justice Blackmun was nominated to the Court in 1970, Americans were consumed with the idea of crime control. In the 1968 presidential campaign, Richard Nixon had called the Supreme Court "soft on crime" and had promised to "put 'law and order' judges on the Court." While sitting on the Eighth Circuit, the Justice had "seldom struck down searches, seizures, arrests or confessions," and most of his opinions in criminal cases had "affirmed guilty verdicts and sentences." Thus, according to one commentator, Justice Blackmun seemed to be "exactly what Nixon was looking for: a judge who believed in judicial restraint, …
Beyond Admissibility: Real Confrontation, Virtual Cross-Examination And The Right To Confront Hearsay, John G. Douglass
Beyond Admissibility: Real Confrontation, Virtual Cross-Examination And The Right To Confront Hearsay, John G. Douglass
Law Faculty Publications
Part I of this Article describes how the Court turned the Confrontation Clause into a rule excluding unreliable hearsay, culminating in the 1980 decision in Ohio v. Roberts, in which the Court set out the "general approach" that dominates confrontation-hearsay analysis today. Part II assesses the application of the Court's exclusionary rule in the two decades since Roberts, a period during which the Confrontation Clause largely has merged with, and disappeared into, the law of evidence, in the process losing its significance as an independent protection for the accused in an adversarial system. Part III argues that the Court's choice …
Evidence: 1997-1998 Survey Of New York Law, Faust Rossi
Evidence: 1997-1998 Survey Of New York Law, Faust Rossi
Cornell Law Faculty Publications
No abstract provided.
New Opportunities For Defense Attorneys: How Record Preservation Requirements In The 1996 Habeas Bill Expand Defense Strategies, Andrea Lyon
Law Faculty Publications
No abstract provided.
Managed Health Care In Prisons As Cruel And Unusual Punishment, Ira Robbins
Managed Health Care In Prisons As Cruel And Unusual Punishment, Ira Robbins
Articles in Law Reviews & Other Academic Journals
INTRODUCTION:Billy Roberts, a prisoner in an Alabama state prison, had a history of severe psychiatric disorders. He was often put on suicide watch, and received large doses of psychotropic drugs. A managed health care company, Correctional Medical Services (CMS), was responsible for the health care at the prison. After Roberts had a suicidal episode, CMS's statewide mental health care director reportedly put Roberts in an isolation cell rather than a psychiatric care unit. The mental health care director also ordered that Roberts' medication be discontinued pursuant to an alleged policy of CMS to get as many prisoners off psycho- tropic …
Plea Bargaining And The Criminal Defendant's Obligation To Plead Guilty, Gerard V. Bradley
Plea Bargaining And The Criminal Defendant's Obligation To Plead Guilty, Gerard V. Bradley
Journal Articles
One criticism of plea bargaining holds that: "So long as defendants routinely expect to receive some form of sentencing consideration in exchange for an admission of guilt, the essence of a system of bargain justice is present."
Taken as a criticism ― that "bargain justice" is defective justice and that the "routine" upon which it depends should be significantly reduced, or eliminated ― this view is quite mistaken. On the assumption (which I believe to be true, but for which I do not argue here) that a large majority of the criminally accused are in reality guilty, many ― and …