Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

2003

Criminal law

Discipline
Institution
Publication
Publication Type

Articles 1 - 30 of 41

Full-Text Articles in Law

Rethinking Theft Crimes In Virginia, John G. Douglass Nov 2003

Rethinking Theft Crimes In Virginia, John G. Douglass

University of Richmond Law Review

No abstract provided.


Criminal Law, Marla Graff Decker, Stephen R. Mccullough Nov 2003

Criminal Law, Marla Graff Decker, Stephen R. Mccullough

University of Richmond Law Review

No abstract provided.


Nullificatory Juries, David A. Hoffman, Kaimipono D. Wenger Oct 2003

Nullificatory Juries, David A. Hoffman, Kaimipono D. Wenger

David A Hoffman

In this Article, we argue that current debates on the legitimacy of punitive damages would benefit from a comparison with jury nullification in criminal trials. We discuss critiques of punitive damages and of jury nullification, noting the surprising similarities in the arguments scholars use to attack these (superficially) distinct outcomes of the jury guarantee. Not only are the criticisms alike, the institutions of punitive damages and jury nullification also turn out to have many similarities: both are, we suggest, examples of what we call "nullificatory juries." We discuss the features of such juries, and consider recent behavioral data relating to ...


To Catch A Killer: Roadblocks And The Fourth Amendment, Michael T. Morley Oct 2003

To Catch A Killer: Roadblocks And The Fourth Amendment, Michael T. Morley

Scholarly Publications

No abstract provided.


A Miscarriage Of Justice In Massachusetts: Eyewitness Identification Procedures, Unrecorded Admissions, And A Comparison With English Law, Stanley Z. Fisher, Ian K. Mckenzie Oct 2003

A Miscarriage Of Justice In Massachusetts: Eyewitness Identification Procedures, Unrecorded Admissions, And A Comparison With English Law, Stanley Z. Fisher, Ian K. Mckenzie

Faculty Scholarship

Like many other states, Massachusetts has recently known a number of acknowledged miscarriages of justice. This article examines one of them, the Marvin Mitchell case, in order to ask two questions: "What went wrong?" and "What systemic reforms might have prevented this injustice?" In seeking ideas for reform, we look to English law.

In 1990 Marvin Mitchell was convicted of rape in Massachusetts. Seven years later he became the first Massachusetts prisoner to be exonerated by DNA testing. In this article we describe the two key factors leading to Mitchell's wrongful conviction: faulty eyewitness identification procedures, and inadequate safeguards ...


Toward A Criminal Law For Cyberspace: Distributed Security, Susan Brenner Aug 2003

Toward A Criminal Law For Cyberspace: Distributed Security, Susan Brenner

ExpressO

The article analyzes the structure and evolution of the current, traditional model of law enforcement and explains why this model is not an effective means of addressing computer-facilitated criminal activity. It begins by analyzing the operation of rules in collective systems composed of biological or artificial entities; it explains that every such system utilizes basic, constitutive rules to maintain both internal and external order. The article explains that intelligence has a profound effect upon a system’s ability to maintain internal order. Intelligence creates the capacity for deviant behavior, i.e., the refusal to abide by constitutive rules, and this ...


From The Ne’Er-Do-Well To The Criminal History Category: The Refinement Of The Actuarial Model In Criminal Law, Bernard E. Harcourt Jul 2003

From The Ne’Er-Do-Well To The Criminal History Category: The Refinement Of The Actuarial Model In Criminal Law, Bernard E. Harcourt

Law and Contemporary Problems

Harcourt discusses three developments in 20th century criminal law: the evolution of parole board decision-making in the early 20th century, the development of fixed sentencing guidelines in the late 20th century, and the growth of criminal profiling as a formal law enforcement tool since the 1960s. In each of these case studies, he focuses on the criminal law decision-making.


Trust Me, I'M A Judge: Why Binding Judicial Notice Of Jurisdictional Facts Violates The Right To Jury Trial, William M. Carter Jr. Jun 2003

Trust Me, I'M A Judge: Why Binding Judicial Notice Of Jurisdictional Facts Violates The Right To Jury Trial, William M. Carter Jr.

Missouri Law Review

This Article contends that the predominant practice of federal courts of completely removing the jurisdictional element from the jury violates the Sixth Amendment right to jury trial and Rule 201. Part II of this Article discusses the problems raised by binding judicial notice of the jurisdictional element of federal criminal offenses. Part III gives an overview of the factual, constitutional, and statutory prerequisites for land to fall within the special territorial jurisdiction of the United States. Part IV briefly describes the circumstances in which courts may properly take judicial notice under Rule 201. Part V discusses the requirements for judicial ...


Sex Offender Registration And Community Notification Laws: Will These Laws Survive?, Kimberly B. Wilkins May 2003

Sex Offender Registration And Community Notification Laws: Will These Laws Survive?, Kimberly B. Wilkins

University of Richmond Law Review

No abstract provided.


Minority Shareholder, Minority Citizen: A Perspective Piece, Anthony Briggs Apr 2003

Minority Shareholder, Minority Citizen: A Perspective Piece, Anthony Briggs

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


Overcoming The Myth Of Free Will In Criminal Law: The True Impact Of The Genetic Revolution, Matthew Jones Mar 2003

Overcoming The Myth Of Free Will In Criminal Law: The True Impact Of The Genetic Revolution, Matthew Jones

Duke Law Journal

No abstract provided.


The Metamorphoses Of Reasonable Doubt: How Changes In The Burden Of Proof Have Weakened The Presumption Of Innocence, Steve Sheppard Jan 2003

The Metamorphoses Of Reasonable Doubt: How Changes In The Burden Of Proof Have Weakened The Presumption Of Innocence, Steve Sheppard

Steve Sheppard

The standard of proof beyond a reasonable doubt is commonly thought to be an important benefit to the accused. The history of the standard is much more complex and demonstrates lesser commitments to the truth and to the defendant.

This article develops the history of the reasonable doubt instruction in the United States and its English antecedents. Examining the development of the instruction in the seventeenth and eighteenth centuries and its evolution through the nineteenth and twentieth, this history reveals the dual nature of the instruction. It both encapsulated a theory of knowledge and articulated a level of confidence in ...


The Origins Of Felony Jury Sentencing In The United States, Nancy J. King Jan 2003

The Origins Of Felony Jury Sentencing In The United States, Nancy J. King

Vanderbilt Law School Faculty Publications

All of the states admitted to the Union by 1800 eventually abandoned capital punishment for most felonies in favor of discretionary terms of imprisonment. But of these states, only Virginia, Kentucky, and Georgia adopted jury sentencing. In 1786, Pennsylvania became the first state to adopt discretionary terms of hard labor and imprisonment as the primary punishment for felony offenses-delegating to judges the authority to select those terms. In 1796, Virginia opted for jury sentencing, while New York followed Pennsylvania's lead. After 1796, with both Pennsylvania's judge sentencing and Virginia's jury sentencing models to choose from, New Jersey ...


International Law Issues In Death Penalty Defense, Richard J. Wilson Jan 2003

International Law Issues In Death Penalty Defense, Richard J. Wilson

Hofstra Law Review

No abstract provided.


Two Sides Of A "Sargasso Sea": Successive Prosecution For The "Same Offence" In The United States And The United Kingdom, Lissa Griffin Jan 2003

Two Sides Of A "Sargasso Sea": Successive Prosecution For The "Same Offence" In The United States And The United Kingdom, Lissa Griffin

University of Richmond Law Review

No abstract provided.


A Healer Or An Executioner - The Proper Role Of A Psychiatrist In A Criminal Justice System, Gregory Dolin Jan 2003

A Healer Or An Executioner - The Proper Role Of A Psychiatrist In A Criminal Justice System, Gregory Dolin

Journal of Law and Health

This article argues that despite the benefits of ridding the criminal justice system of some uncertainty and ignorance with respect to mental health issues, the very close involvement of psychiatrists in the criminal justice system as practiced in the United States is not only illogical and bad policy, but also unethical from the viewpoint of medical ethics. Part II of this article will lay the groundwork for the argument by discussing the history of the insanity defense, and of science's involvement with criminal justice; while Part III, will look into the association of science and the administration of justice ...


The Admissibility Of Expert Testimony About Cognitive Science Research On Eyewitness Identification, Edward Stein Jan 2003

The Admissibility Of Expert Testimony About Cognitive Science Research On Eyewitness Identification, Edward Stein

Articles

Eyewitness identifications are important to jurors, especially in criminal trials. Psychological research has shown, however, that eyewitness testimony is systematically fallible in ways that undermine the goals of the rules of evidence. This article assesses the arguments for and against admitting expert testimony concerning cognitive science research about eyewitness identification. The article concludes that experts should in many instances be allowed to testify about the problems with eyewitness identification testimony.


On Statutory Rape, Strict Liability, And The Public Welfare Offense Model, Catherine L. Carpenter Jan 2003

On Statutory Rape, Strict Liability, And The Public Welfare Offense Model, Catherine L. Carpenter

American University Law Review

Statutory Rape. At the center of a long-standing debate on whether its commission should require proof of a criminal mens rea, the prosecution of statutory rape offers a revealing look at the struggle to demarcate the parameters of the public welfare offense doctrine. Specifically, with respect to statutory rape, disagreement is deep and entrenched on whether statutory rape should be categorized as a public welfare offense, which would render irrelevant defendant's lack of knowledge of the victim's age. And despite wholesale revamping of state statutory rape laws on issues of age, gender, and potential grading and punishment, the ...


Jurisdiction To Adjudicate And Jurisdiction To Prescribe In International Criminal Courts, Kenneth S. Gallant Jan 2003

Jurisdiction To Adjudicate And Jurisdiction To Prescribe In International Criminal Courts, Kenneth S. Gallant

Faculty Scholarship

Direct jurisdiction over individuals, along with responsibilities to them, are outstanding characteristics of the new International Criminal Court (ICC or Court), as they already are of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR). This Article raises issues of legitimate power to prosecute and to define criminal law and issues of individual human rights which necessarily arise in any criminal system.

This Article is predominantly an analysis of issues of criminal jurisdiction over persons as they are treated in the ICC Statute, as well as in the current ad hoc international criminal tribunals. Part II ...


Should The Model Penal Code's Mens Rea Provisions Be Amended?, Kenneth W. Simons Jan 2003

Should The Model Penal Code's Mens Rea Provisions Be Amended?, Kenneth W. Simons

Faculty Scholarship

The Model Penal Code approach to mens rea was a tremendous advance. The MPC carefully defines a limited number of mens rea terms, firmly establishes element analysis in place of offense analysis, and recognizes that the doctrine of mistake is part and parcel of the basic analysis of mens rea.

However, a revised Code could improve the drafting of the mens rea provisions in a number of respects:

* Clarify how to distinguish result, circumstance, and result elements

* Simplify the definitions of knowledge and purpose

* Perhaps eliminate the category of mens rea as to conduct

* Clarify the fact/law distinction, and ...


Homicide On Holiday: Prosecutorial Discretion, Popular Culture, And The Boundaries Of The Criminal Law, Carolyn B. Ramsey Jan 2003

Homicide On Holiday: Prosecutorial Discretion, Popular Culture, And The Boundaries Of The Criminal Law, Carolyn B. Ramsey

Articles

This article discusses prosecutors' discretion to press criminal charges against individuals who cause death during recreational activities. Based on newspaper sources, published opinions, and unpublished materials from cases that resulted in plea bargains, Homicide on Holiday continues the author's exploration of the relationship between the American public, criminal prosecutors, and the nature of the prosecutors' public role. It shows that, despite popular culture's glorification of risk and a nationwide trend in tort law toward sheltering sports co-participants from civil negligence liability, an exhilarating trip down a ski slope is increasingly likely to land a skier in jail if ...


Victim Wrongs: The Case For A General Criminal Defense Based On Wrongful Victim Behavior In An Era Of Victims' Rights, Aya Gruber Jan 2003

Victim Wrongs: The Case For A General Criminal Defense Based On Wrongful Victim Behavior In An Era Of Victims' Rights, Aya Gruber

Articles

Criminal law scholarship is rife with analysis of the victims' rights movement. Many articles identify with the outrage of victims harmed by deviant criminal elements. Other scholarly pieces criticize the movement's denuding of defendants' constitutional trial rights. The point upon which proponents and opponents of the movement tend to agree, however, is that the victim should never be blamed for the crime. The helpless, harmed, innocent victim is someone with whom we can all identify and someone to whom we can all express sympathy. Victim blaming, by all accounts, is an act of legal heresy to feminists, victim advocates ...


"Forgive Me Victim For I Have Sinned": Why Repentance And The Criminal Justice System Do Not Mix - A Lesson From Jewish Law, Cheryl G. Bader Jan 2003

"Forgive Me Victim For I Have Sinned": Why Repentance And The Criminal Justice System Do Not Mix - A Lesson From Jewish Law, Cheryl G. Bader

Fordham Urban Law Journal

This essay will critique the Georgia Justice Project's encouragement of confessions in the context of the secular American justice system via comparison with the treatment of confessions under ancient Jewish law. Specifically, this essay posits that the absolute prohibition on the use of confessions in a legal system firmly rooted in religious values recognizes the danger inherent in combining the act of speaking of one's sins for religious penance with the use of such confessions in the criminal adjudication process. The Jewish legal system avoids these inherent dangers by completely devaluing the accused's confession. The GJP, in ...


Final Report Of The Illinois Criminal Code Rewrite And Reform Commission, Paul H. Robinson, Michael T. Cahill Jan 2003

Final Report Of The Illinois Criminal Code Rewrite And Reform Commission, Paul H. Robinson, Michael T. Cahill

Faculty Scholarship at Penn Law

The Governor of Illinois created a commission to examine the problems with Illinois criminal law and to rewrite the Illinois criminal code. This two-volume Final Report of the Illinois Criminal Code Rewrite and Reform Commission proposes a new criminal code, in volume 1, together with an official commentary, in volume 2, that explains each provision and how and why it differs from existing law. The introduction to the Report summarizes the reasons for and the importance of criminal code reform, and describes the techniques used in this rewrite project, including both the project’s drafting principles and the methods by ...


Still Tough On Crime? Prospects For Restorative Justice In The United States, Sara Sun Beale Jan 2003

Still Tough On Crime? Prospects For Restorative Justice In The United States, Sara Sun Beale

Faculty Scholarship

No abstract provided.


The Metamorphoses Of Reasonable Doubt: How Changes In The Burden Of Proof May Weaken The Presumption Of Innocence, Stephen M. Sheppard Jan 2003

The Metamorphoses Of Reasonable Doubt: How Changes In The Burden Of Proof May Weaken The Presumption Of Innocence, Stephen M. Sheppard

Faculty Articles

The standard of proof beyond a reasonable doubt is commonly thought to be an important benefit to the accused. The history of the standard is much more complex and demonstrates lesser commitments to the truth and to the defendant. Examining the development of reasonable doubt instruction in the seventeenth and eighteenth century England and in the United States, and its evolution through the nineteenth and twentieth, this history reveals the dual nature of the instruction. It both encapsulated a theory of knowledge and articulated a level of confidence in the evidence. Further, the history describes twentieth-century changes in the meaning ...


Nullificatory Juries, David A. Hoffman, Kaimipono David Wenger Jan 2003

Nullificatory Juries, David A. Hoffman, Kaimipono David Wenger

Faculty Scholarship at Penn Law

In this Article, we argue that current debates on the legitimacy of punitive damages would benefit from a comparison with jury nullification in criminal trials. We discuss critiques of punitive damages and of jury nullification, noting the surprising similarities in the arguments scholars use to attack these (superficially) distinct outcomes of the jury guarantee. Not only are the criticisms alike, the institutions of punitive damages and jury nullification also turn out to have many similarities: both are, we suggest, examples of what we call "nullificatory juries." We discuss the features of such juries, and consider recent behavioral data relating to ...


Criminal Law: The Oklahoma Court Of Criminal Appeals' Procedural And Substantive Application Of Ring V. Arizona To Oklahoma's Capital Sentencing Scheme, Seth S. Branham Jan 2003

Criminal Law: The Oklahoma Court Of Criminal Appeals' Procedural And Substantive Application Of Ring V. Arizona To Oklahoma's Capital Sentencing Scheme, Seth S. Branham

Oklahoma Law Review

No abstract provided.


Evidence: Is Oklahoma Balancing The Scales Of Justice By Tying The Hands Of Trial Judges?: The 2002 Amendment To Section 2403 Of The Oklahoma Evidence Code Mandating Admission Of In-Life Victim Photographs In Homicide Cases, Liesa L. Richter Jan 2003

Evidence: Is Oklahoma Balancing The Scales Of Justice By Tying The Hands Of Trial Judges?: The 2002 Amendment To Section 2403 Of The Oklahoma Evidence Code Mandating Admission Of In-Life Victim Photographs In Homicide Cases, Liesa L. Richter

Oklahoma Law Review

No abstract provided.


The Difference In Criminal Defense And The Difference It Makes, Abbe Smith Jan 2003

The Difference In Criminal Defense And The Difference It Makes, Abbe Smith

Georgetown Law Faculty Publications and Other Works

My own view of criminal defense lawyering owes much to Monroe Freedman. I agree with his "traditionalist view”, of criminal defense ethics as a lawyering paradigm in which zealous advocacy and the maintenance of client confidence and trust are paramount. Simply put, zeal and confidentiality trump most other rules, principles, or values. When there is tension between these "fundamental principles” and other ethical rules, criminal defense lawyers must uphold the principles, even in the face of public or professional outcry. Although a defender must act within the bounds of the law, he or she should engage in advocacy that is ...