Law Commons^™

Discretion And Criminal Law: The Good, The Bad, And The Mundane, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

Most academic papers condemn discretion in the enforcement and prosecution of crime. This essay argues that discretion should be understood to come in three varieties: good discretion, which is beneficial; bad discretion, which is typified by acts motivated by race, sex, or class considerations; and mundane discretion, which is value-neutral. The decision to pursue a drunken driver rather than a speeder, for example, is a good use of discretion while the decision to pursue one speeder rather than another based on race is bad discretion. Most motives that prompt acts of discretion, however, are value-neutral or what I call “mundane” …

Time Travel, Hovercrafts, And The Framers: James Madison Sees The Future And Rewrites The Fourth Amendment, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

The Framers could not have contemplated the interpretational problems that cloud the Fourth Amendment because police, in the modern sense, were unknown to the Framers. Also unknown to the Framers, of course, were wiretaps, drug interdiction searches, thermal imagining, helicopters, and blood tests. We can infer from the history surrounding the Fourth Amendment what the Framers hoped it would accomplish in their time. What if the Framers could have seen the future and known the kind of police techniques that are being used today? What kind of Fourth Amendment would they have written with that knowledge? This article seeks to …

Missing Miranda's Story, A Review Of Gary L. Stuart's, Miranda: The Story Of America's Right To Remain Silent, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

Miranda v. Arizona is the best known criminal procedure decision in the history of the Supreme Court. It has spawned dozens of books and hundreds of articles. The world does not need another Miranda book unless it has something new and interesting to tell readers. Unfortunately, to borrow an old cliche, the parts of Gary Stuart’s book that are new are, for the most part, not interesting and the parts that are interesting are, for the most part, not new. Stuart adds material to the Miranda storehouse about the involvement of local Arizona lawyers and judges in the original case, …

Conditional Rights And Comparative Wrongs: More On The Theory And Application Of Comparative Criminal Liability, Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

This article continues to develop an argument in favor of comparative criminal liability started in "Victims and Perpetrators: An Argument for Comparative Liability in Criminal Law," (http://law.bepress.com/rutgersnewarklwps/fp/art19/) Buff. Crim. L. Rev. 385 (2005). The essence of my argument is that people’s rights are not static but depend on their actions, and victims may reduce their right not to be harmed either voluntarily, by consent, waiver or assumption of risk, or involuntarily, by an attack on some legally recognized rights of the perpetrator. If that happens, perpetrators should be entitled to a defense of complete or partial justification, which would eliminate …

Victims And Perpetrators: An Argument For Comparative Liability In Criminal Law, Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

This article challenges the legal rule according to which the victim’s conduct is irrelevant to the determination of the perpetrator’s criminal liability. The author attacks this rule from both positive and normative perspectives, and argues that criminal law should incorporate an affirmative defense of comparative liability. This defense would fully or partially exculpate the defendant if the victim by his own acts has lost or reduced his right not to be harmed.

Part I tests the descriptive accuracy of the proposition that the perpetrator’s liability does not depend on the conduct of the victim. Criminological and victimological studies strongly suggest …