Law Commons^™

Improving Law Enforcement’S Victim-Centric Responses To Sexual Assault: Global Best Practice Catalog, Ayesha Ashraf, Sebastián Galleguillos Agurto, Frederick Geyer, Kamela Gjoka, Jasmine Hwang, Stanley Montinat, Jessica Moor, Pierre Reyes, Tara Ventimiglia, Hongda Xu

Publications and Research

This catalog was compiled as part of a U.S. State Department Diplomacy Lab Project entitled “Improving Law Enforcement’s Victim-Centric Responses to Sexual Assault,” in fall semester of 2019, for American Citizens Services, US Embassy Bangkok. It is intended to cover best practices in law enforcement response to sexual assault across the globe, including laws, policies and programs.Ten multilingual graduate students in the capstone seminar of the Master of Arts Degree Program in International Crime and Justice at John Jay College of Criminal Justice (CUNY) established criteria for inclusion and standardized elements for each entry in this catalog. The ultimate aim …

Select Criminal Law And Procedure Cases From The U.S. Supreme Court's 2018-2019 Term, Eve Brensike Primus, Kristin Froehle

Articles

Although the 2018-19 Term at the Supreme Court did not include any blockbuster rulings like Carpenter v. United States, the Court issued a number of significant criminal law and procedure rulings. It addressed warrantless blood-alcohol testing, the dual-sovereignty doctrine, the right to trial by jury, ineffective assistance of trial counsel, questions of incorporation, prisoners' competence to be executed, permissible methods of execution, and some important statutory interpretation questions. Looking back on the Term, Justice Gorsuch clearly solidified his position as the libertarian "swing" vote in criminal procedure cases. He joined the liberals to uphold a defendant's right to trial …

Racial Prejudice In The Criminal Justice System, Tori Cooper

Jessie O'Kelly Freshman Essay Award

Racial prejudice against African Americans has been the leading cause of high incarceration rates amongst the African American community. Within the United States, the census reported that African Americans make up about 17.9 percent of the population, with one-third of the people making up the incarcerated population in America. The disparity in those numbers highlights the current situation that is plaguing the nation. Blatant cases of racial profiling that have received media attention are a true testament of the broken law enforcement system from coast to coast. Racial prejudice cases have affected the black American community since the beginning of …

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Faculty Scholarship

No abstract provided.

Cops And Cars: How The Automobile Drove Fourth Amendment Law, Tracey Maclin

Faculty Scholarship

This is an essay on Professor Sarah A. Seo’s new book, Policing the Open Road: How Cars Transformed American Freedom (Harvard Univ. Press 2019). I focus on Professor Seo’s analysis of Carroll v. United States, 267 U.S. 132 (1925) and Brinegar v. United States, 338 U.S. 160 (1949). Carroll is important not only because it was the Court’s first car case. Understanding Carroll (and Brinegar, which solidified and expanded Carroll’s holding) is essential because, nearly one hundred years later, its logic continues to direct how the modern Court resolves Fourth Amendment claims of motorists. Put simply, a majority of today’s …

Law Symposium: Adjudicating Sexual Misconduct On Campus: Title Ix And Due Process In Uncertain Times, Roger Williams University School Of Law, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.

Gathrite V. Eighth Jud. Dist. Ct., 135 Nev. Adv. Op. 54 (Nov. 7, 2019), Skylar Arakawa-Pamphilon

Nevada Supreme Court Summaries

For purposes of NRS 172.135(2), evidence that has been suppressed in justice court proceedings on a felony complaint is not “legal evidence,” and therefore, may not be presented to a grand jury. The Court will grant an exception to this rule if the suppression was reversed before the grand jury proceedings.

Witter V. State, 135 Nev. Adv. Op. 73444 (Nov. 14, 2019), John Bays

Nevada Supreme Court Summaries

The Court determined that (1) a judgment of conviction containing a restitution provision must contain the specific amount of restitution required; (2) a judgment of conviction containing an indeterminate restitution provision is not a final judgement for purposes of appeal or for purposes of triggering the deadline for filing a habeas petition; and (3) the principle of finality requires that even when such an error is made, if the defendant treats the judgment as final by litigating, the defendant is estopped from later arguing that judgment was not final and that subsequent proceedings were null and void for lack of …

An Intellectual History Of Mass Incarceration, Alice Ristroph

Faculty Scholarship

No abstract provided.

Newson V. State, 135 Nev. Adv. Op. 50 (Oct. 10, 2019), Richard Young

Nevada Supreme Court Summaries

The Court determined although the district court has broad discretion to settle jury instructions, the failure to instruct the jury on a defendant’s theory of a case that is supported by any evidence warrants reversal unless the error was harmless.

State Bd. Of Parole Comm’Rs V. Second Judicial Dist. Court, 135 Nev. Adv. Op. 53 (Oct. 24, 2019) (En Banc), Dallas Anselmo

Nevada Supreme Court Summaries

The Court confronted several issues in this methodical decision. The Court addressed standing and discretionary review in the context of writ petitions. It next analyzes and determines the applicable version of a particular NRS section. Finally, the Court interprets the applicable version of the statute. The opinion culminates in the granting of a writ of mandamus petition for the Parole Board to correct an inaccurate application of law at the district court level.

The Reverse Agency Problem In The Age Of Compliance, Asaf Eckstein, Gideon Parchomovsky

All Faculty Scholarship

The agency problem, the idea that corporate directors and officers are motivated to prioritize their self-interest over the interest of their corporation, has had long-lasting impact on corporate law theory and practice. In recent years, however, as federal agencies have stepped up enforcement efforts against corporations, a new problem that is the mirror image of the agency problem has surfaced—the reverse agency problem. The surge in criminal investigations against corporations, combined with the rising popularity of settlement mechanisms including Pretrial Diversion Agreements (PDAs), and corporate plea agreements, has led corporations to sacrifice directors and officers in order to reach settlements …

Bowser V. State Of Nevada, 135 Nev. Adv. Op. 15 (May 16, 2019), Andrew Brown

Nevada Supreme Court Summaries

The Court overruled precedent which held that a presumption of vindictiveness applies when a judge imposes a longer sentence after a new trial.

Menendez-Cordero V. State, 135 Nev. Adv. Op. 29 (Jul 25, 2019), Nick Hagenkord

Nevada Supreme Court Summaries

The Court concluded that (1) the empanelment of an anonymous jury does not, without actual prejudice, infringe on a defendant’s constitutional rights and the district court satisfied the abuse-of-discretion standard adopted; (2) the district court need not instruct a jury that is responsible for imposing a sentence in a first-degree murder case under NRS 175.552 about the effects of a deadly weapon enhancement; and (3) there was no abuse of discretion in the district court’s decision to admit Menendez-Cordero’s threats as consciousness-of-guilt evidence.

Azucena V. State Of Nevada, 135 Nev. Ad. Op. (Sep. 5, 2019), Mia Mallette

Nevada Supreme Court Summaries

The Court determined that the trial judge’s actions during jury selection rose to the level of judicial misconduct in response to a prospective juror indicating she could not be unbiased. These actions could have impeded Azucena’s right to a fair trial with an impartial jury as the court feared that the potential jurors would not have been able to answer candidly about any biases they may have had.

Hager V. State, 135 Nev. Adv. Op. 34 (Aug. 29, 2019), Brittney Lehtinen

Nevada Supreme Court Summaries

The Court determined that (1) Defendants who successfully complete mental health specialty court diversion programs pursuant to NRS § 176A.250–265 are not “adjudicated mentally ill” under NRS § 202.360(2)(1); and (2) that the jury should have been instructed that under NRS § 202.360(1)(d), an “unlawful user” is someone who regularly uses substances over a period of time consistent with their possession of a firearm.

Andersen V. Eighth Judicial Dist. Court, 135 Nev. Adv. Op. 42 (Sept. 12, 2019) (En Banc), Erika Smolyar

Nevada Supreme Court Summaries

In light of recent statutes limiting the right to bear arms for people convicted of misdemeanor battery constituting domestic violence, the Court determined that because the Legislature reclassified misdemeanor battery in that context to constitute a serious offense, those convicted of it are entitled to a jury trial.

Anderson (Arnold) V. State, 135 Nev. Adv. Op. 37 (Sept. 5, 2019), Alexandra Matloff

Nevada Supreme Court Summaries

The Court held that if a trial court determines by a preponderance of the evidence that a witness is unable to testify because the defendant wrongfully procured the witness’s unavailability and acted with intent to do so, the forfeiture-by-wrongdoing exception can be applied in order to deny a defendant’s rights under the Confrontation Clause of the Sixth Amendment. The Court also held that in determining whether the forfeiture-by-wrongdoing exception applies, the trial court must hear the opposing parties’ arguments in the absence of a jury.

Justice On The Line: Prosecutorial Screening Before Arrest, Adam M. Gershowitz

Faculty Publications

Police make more than eleven million arrests every year. Yet prosecutors dismiss about 25% of criminal charges with no conviction being entered. Needless arrests are therefore clogging the criminal justice system and harming criminal defendants. For instance, Freddie Gray was fatally injured in police custody after being arrested for possession of a switchblade knife. Prosecutors later announced, however, that they did not believe the knife was actually illegal. If prosecutors had to approve warrantless arrests before police could take suspects into custody, Freddie Gray would still be alive. Yet prosecutors’ offices almost never dictate who the police should or should …

Deferred Prosecution Agreements In Singapore: What Is The Appropriate Standard For Judicial Approval, Eunice Chua, Benedict Wei Qi Chan

Research Collection Yong Pung How School Of Law

Originating from the US, deferred prosecution agreements (“DPAs”) have made their way to the UK through the Crime and Courts Act 2013 and Singapore through the Criminal Justice Reform Act 2018. The Singapore model for approval of DPAs draws heavily from the UK and both require proof to a court that DPAs are in the “interests of justice” and that their terms are “fair, reasonable and proportionate” before DPAs can be approved. This paper considers the theoretical basis for the court’s approval of DPAs, critically examines the application of the tests for approval of DPAs in the UK and considers …

Judging Judges Fifty Years After – Was Judge Julius Hoffman’S Conduct So Different?, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In Chicago, Illinois--and in courtrooms across the United States--judicial misconduct has affected trial outcomes as long as there have been trials. While Judge Julius Hoffman's conduct in the “Chicago Eight” trial is an egregious example of judicial behavior toward criminal defendants, this piece's examination of at least ten different categories of misconduct in dozens of cases makes the argument that misbehavior by judges is less of an exception to the rule of impartiality than the thinking public might know. In considering these brazen examples, practitioners and academics alike can evaluate how to best confront the extent to which conduct like …

Supermajoritarian Criminal Justice, Aliza Plener Cover

Articles

Democracy is often equated with majority rule. But closer analysis reveals that, in theory and by constitutional design, our criminal justice system should be supermajoritarian, not majoritarian. The Constitution guarantees that criminal punishment may be imposed only when backed by the supermajoritarian-historically, unanimous-approval of a jury drawn from the community. And criminal law theorists' expressive and retributive justifications for criminal punishment implicitly rely on the existence of broad community consensus in favor of imposing it. Despite these constitutional and theoretical ideals, the criminal justice system today is majoritarian at best. Both harsh and contested, it has lost the structural mechanisms …

Singapore, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

The Singapore Government recognises and is committed to legal aid as an integral part of access to justice. Sixty years ago in 1958, Singapore was the first country in Southeast Asia to enact a legal aid scheme, which provided for the establishment of the Legal Aid Bureau (LAB) to provide civil legal aid to persons of limited means. Over the course of independent Singapore’s history, legal aid as part of the overall access to justice has broadened significantly. Members of Parliament make regular calls for more people to qualify and receive government-funded legal aid. The government regards access to justice …

Trial Monitoring Of People V. Miti Et Al. (Zambia 2018), Human Rights Institute, Beth Van Schaack

Human Rights Institute

Between September and December 2018, TrialWatch monitored the trial of six
activists in Zambia, who were arrested and charged under the Public Order Act in
connection with an anti-corruption protest they organized in 2017. On December 21, 2018, the judge dismissed the charges and acquitted all six defendants.

Although the trial itself was generally fair, and Judge Mwaka Chigali Mikalile is to be commended in this regard, the proceedings were infected with prosecutorial misconduct in pursuing spurious charges based upon patently insufficient evidence.

Trial Monitoring Of People V. Cansu Pişkin (Turkey 2019), Human Rights Institute, Stephen J. Rapp

Human Rights Institute

Between March and May 2019, TrialWatch monitors under the supervision of the
Columbia Law School Human Rights Clinic monitored the trial of Cansu Pişkin, a
journalist for the Turkish daily paper, Evrensel, in Istanbul, Turkey. Pişkin was charged with “making a public servant into a target for terrorist organizations” in violation of Section 6(1) of Law No. 3713, otherwise known as the Anti-Terror Law, for publishing the prosecutor’s name in her April 5, 2018 article, “Special Prosecutor for the Bosphorus Students.” On May 7, 2019, the Court convicted Pişkin and sentenced her to 10 months’ imprisonment (with the sentence pronouncement …

Fictional Pleas, Thea B. Johnson

Faculty Publications

A fictional plea is one in which the defendant pleads guilty to a crime he has not committed with the knowledge of the defense attorney, prosecutor and judge. With fictional pleas, the plea of conviction is totally detached from the original factual allegations against the defendant. As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern. It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating non-criminal consequences. In this context, …

Law School News: Ncdc Holds Trial Practice Institute At Rwu Law 06-28-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Maryland Makes New Evidence Postconviction Review Provisions Available To Defendants With Plea Deals, Felicia Langel

Maryland Law Review Online

No abstract provided.

Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

Judicial failure to recognize social media's influence on juror decision making has identifiable constitutional implications. The Sixth Amendment right to a fair trial demands that courts grant a defendant's change of venue motion when media-generated pretrial publicity invades the unbiased sensibility of those who are asked to sit in judgment. Courts limit publicity suitable for granting a defendant's motion to information culled from newspapers, radio, and television reports. Since about 2014, however, a handful of defendants have introduced social media posts to support their claims of unconstitutional bias in the community. Despite defendants' introduction of negative social media in support …

Dividing Bail Reform, Shima Baughman

Utah Law Faculty Scholarship

There are few issues in criminal law with greater momentum than bail reform. In the last three years, states have passed hundreds of new pretrial release laws, and there are now over 200 bills pending throughout the states. These efforts are rooted in important concerns: Bail reform lies at the heart of broader recent debates about equitable treatment in the criminal justice system. Done right, bail keeps dangerous individuals off the streets; done wrong, it keeps those with less economic means in jail longer. Some jurisdictions are eliminating money bail. Others are adopting risk assessments to determine who to release. …