Law Commons^™

Rule 3.8: The Not So Special Responsibilities Of Prosecutors, Ahmed M.T. Riaz

Ahmed M.T. Riaz

Prosecutors are obligated to fulfill responsibilities that stretch beyond the usual scope of duties retained by non-prosecuting attorneys. A broad generalization as to why such differences exist may be reasoned from the fact that a prosecutor is a government official, a position which necessarily carries a duty to “seek justice.” However, the differences may more specifically be categorized in four ways. First, because prosecutors are government officials, they are provided great access to government resources; second, prosecutors are subject to different legal obligations than any other type of attorney, such as being burdened by a reasonable doubt standard; third, the …

Policy Evaluation Of Hillsborough County’S Family Dependency Treatment Court, Shawn M. Martin, Kathleen A. Moore

Kathleen A Moore

Child abuse and neglect is a troubling issue all too familiar with courts in the United States. The problem becomes even more complicated when substance abuse is involved. In 2004, approximately 500,000 children were removed from their homes because of abuse and neglect issues1. In the past few years, a judicial model appeared to address both substance abuse and child dependency issues. This model, entitled Family Dependency Treatment Court (FDTC) enables the court to mandate treatment for parents and make reunification dependent on treatment compliance. The FDTC program in Hillsborough County, Florida is now in its second year and has …

The Puzzle Of Delegated Revenge, Kenworthey Bilz

Kenworthey Bilz

Why should people ever be satisfied when a third party punishes in their name, as opposed to having the opportunity to exact revenge personally? When theories of delegated revenge are offered at all, they explain why a well-ordered society needs centralized punishment as a matter of practicality. But this doesn’t adequately explain why they actually the public actually prefers it, and why they accept some forms of delegated agents more than others. Moreover, these theories do not have a good explanation for why or when delegated revenge will fail to satisfy victims, nor when the state will indulge this preference, …

What Is A Business Crime?, Richard A. Booth

Working Paper Series

Criminal prosecution has been used with increasing frequency recently in connection with a variety of business failures and other financial offenses. Indeed, it appears that there are few such offenses that cannot be prosecuted criminally even though they also give rise to civil remedies. While some such offenses seem to be quite serious frauds, others seem to be as minor as getting the accounting rules wrong. Thus, the question addressed in this essay is how to define a business crime and what should be the proper role of criminal prosecution in connection with business offenses. I start with the proposition …

Equal Rights For Equal Rites?: Victim Allocution, Defendant Allocution, And The Crime Victims' Rights Act, Mary Margaret Giannini

Mary Margaret - Giannini

The federal Crime Victims’ Rights Act (CVRA) grants victims the right to be reasonably heard at sentencing. In the course of examining this right, courts and commentators have referenced the defendant’s analogous right of sentencing allocution as a model or benchmark for the victim’s sentencing right. However, beyond the invocation of the defendant’s corollary right, there has been little analysis of whether defendant allocution does in fact serve as a model for victim allocution. This piece examines with particularity how victim allocution under the CVRA is currently being practiced in the federal courts, and how that practice compares to defendant …

Suspension And The Extrajudicial Constitution, Trevor W. Morrison

Cornell Law Faculty Publications

What happens when Congress suspends the writ of habeas corpus? Everyone agrees that suspending habeas makes that particular - and particularly important - judicial remedy unavailable for those detained by the government. But does suspension also affect the underlying legality of the detention? That is, in addition to making the habeas remedy unavailable, does suspension convert an otherwise unlawful detention into a lawful one? Some, including Justice Scalia in the 2004 case Hamdi v. Rumsfeld and Professor David Shapiro in an important recent article, answer yes.

This Article answers no. I previously offered that same answer in a symposium essay; …

Statement Of Steven L. Chanenson Before The United States Sentencing Commission Regarding Retroactivity Of Crack Guidelines Amendments, Steven Chanenson

Steven L. Chanenson

No abstract provided.

Fallibility + Unchecked Power = Trouble, C. Peter Erlinder

C. Peter Erlinder

No abstract provided.

Illegal Immigration And The Southwest Border District Courts, Thomas J. Bak

Thomas J. Bak

Abstract This paper examines the increase in immigration filings in federal district courts in the southwest United States during the period from 1993 through 2005, a time when the Border Patrol and U.S. Attorneys in southern California, Arizona, New Mexico, and Texas stepped up enforcement of U.S. immigration laws. It follows the shift in the tide of immigration cases from the Southern District of California (CA,S), eastward, as successive initiatives in different Border Patrol sectors continually diverted the flow of illegal immigrants. A mathematical model is used to show the strong correlation between immigration case filings and Border Patrol staffing, …

Crawford’S Aftershock: Aligning The Regulation Of Non-Testimonial Hearsay With The History And Purposes Of The Confrontation Clause, Fred O. Smith

Fred O. Smith Jr.

This Article explores what the purposes, history and text of the Confrontation Clause have to say about the admission of non-testimonial hearsay statements. Part I examines historical sources such as the common law near the Founding, as well as the text of the clause, and concludes that non-testimonial hearsay was one of the ills that the Confrontation Clause was designed to protect. Part I additionally proposes a two-tiered approach to interpreting the Confrontation Clause, in which testimonial statements receive the most vigorous form of constitutional scrutiny, but non-testimonial statements receive meaningful scrutiny as well. The United States Constitution is no …

Towards A Scientific Standard For The Admissibility And Evaluation Of Psychiatric Evidence In War Crimes Prosecutions, Matthew J. Madalo

Matthew J Madalo

"Towards a Standard for the Admissibility and Evaluation of Psychiatric Evidence in War Crimes Prosecutions" explores the nature and use of psychiatric/psychological defenses and evidence in war crimes prosecutions. Part I of the article focuses on the differing goals and overlapping concerns between psychiatry and the law. In the international criminal legal context, the discussion will center on the types of psychiatric evidence and defenses that have been used or are likely to be used in war crimes prosecutions. Part II analyzes the applicable ICTY, ICR and ICC Statutes, Rules of Procedure and Evidence, and relevant United States common law …

Why Judy Norman Acted In Reasonable Self-Defense: An Abused Woman And A Sleeping Man, Marina Angel

Marina Angel

The reasonable man has been replaced by the reasonable person, but that person still functions within legal doctrines conceived by men and interpreted to fit the facts of men's lives. To understand why it is sometimes reasonable for an abused woman to kill her abuser while he is asleep or otherwise incapacitated, basic criminal law doctrines do not have to be changed. They do, however, have to be applied to the facts of abused women's lives.

The issue of exit – why didn’t she leave – must be explained. Concepts of time – immediate, imminent, and cyclical – must be …

Adjudicating Genocide: Is The International Court Of Justice Capable Of Judging State Criminal Responsibility, Dermot M. Groome

Dermot M Groome

Last February, the International Court of Justice issued a judgement adjudicating claims by Bosnia and Herzegovina that Serbia breached the 1948 Genocide Convention – the case marks the first time a state has made such claims against another. The alleged genocidal acts were the same as those that have been the subject of several criminal trials in the Yugoslav Tribunal. The judgment contained several landmark rulings – among them, the Court found that a state, as a state, could commit the crime of genocide and the applicable standard of proof for determining state responsibility is comparable to the standard used …

Changes In Modern Military Codes And The Role Of The Military Commander: What Should The United States Learn From This Revolution?, Victor M. Hansen

Victor M. Hansen

This article examines the renewed interest which legal scholars, courts, and practitioners are giving to military justice. In light of this heightened interest, there have been a number of calls to reform the Uniform Code of Military Justice. Specifically, there is pressure to change and reduce the role of the military commander in the justice system. This pressure for change comes in part due to the changes made in the military codes of the United Kingdom and Canada, two countries which share a common tradition with the United States. The overall effect of these changes has been to significantly reduce …

Correcting Native American Sentencing Disparity Post-Booker, Timothy J. Droske

Timothy J Droske

Native American criminal defendants are subject to disproportionately harsher sentences than similarly situated non-Indian defendants. This is due to the federal government’s exclusive criminal jurisdiction over Native Americans in Indian country for major crimes and the fact that federal sentences tend to be more severe than their state counterparts. Judges and commentators have proposed various means by which to reduce this disparity, but so far, all these proposals have either lacked the political capital to be enacted, or been frustrated by the rigidity of the Federal Sentencing Guidelines. The Supreme Court’s 2005 decision in United States v. Booker however, rendered …

The Name Is The Same, But The Facts Have Been Changed To Protect The Attorneys: Strickland, Judicial Discretion, And Appellate Decision-Making, Greg O'Meara,

Greg O'Meara,

The gap between historical events and the way courts recount them in appellate decisions is highlighted by the differences in fact descriptions offered in the same case: Strickland v. Washington. The Supreme Court’s majority decision ignores or recasts facts found in the lower courts in this case. Paul Ricoeur, the leading philosopher of narrative, provides a framework that explains how legal facts are malleable and subject to distortion in his work on non-fiction narratives. He lays out instabilities inherent in any use of language and then broadens his inquiry to show that the transition from the oral to the written …

From Incitement To Indictment? Prosecuting Iran's President For Advocating Israel's Destruction And Piecing Together Incitement Law's Emerging Analytical Framework, Gregory S. Gordon

Gregory S. Gordon

On October 25, 2005, at an anti-Zionism conference in Tehran, Iran's President, Mahmoud Ahmadinejad, called for Israel to "be wiped off the face of the map" -- the first in a series of incendiary speeches arguably advocating liquidation of the Jewish state. Certain commentators argue that these speeches constitute direct and public incitement to commit genocide. This Article analyzes these arguments by examining the nature and scope of recent groundbreaking developments in incitement law arising from the Rwandan genocide prosecutions. For the first time in the legal literature, the Article pieces together an analytical framework based on principles derived from …

What Can Booker Teach Us About Chevron?, Joshua L. Sohn

Joshua L. Sohn

Since 1984, courts have used the Chevron framework to review administrative agencies’ rules and regulations. However, there is an unresolved debate over how to determine when an agency interpretation of its governing statute is “reasonable” at Step 2 of Chevron. This article seeks to inform that debate by analogizing to an unlikely source: the Supreme Court’s 2005 opinion in United States v. Booker. Booker was a criminal sentencing case that may seem far removed from the interpretive question in Chevron. But the two cases are striking similar in the “reasonableness” standard that they impose on reviewing courts.

This article suggests …

The Insanity Of Mens Rea: Due Process And The Abolition Of The Insanity Defense, Jean K. Phillips, Rebecca E. Woodman

Jean K Phillips

The Insanity of the Mens Rea Model:

Due Process and the Abolition of the Insanity Defense.

Jean K. Gilles Phillips and Rebecca E. Woodman

Abstract

In the last 15 years a flurry of legislative activity has taken place as states have attempted to redefine the insanity defense. This article focuses on those states who chose not just to refine the definition of insanity, but to completely abolish it as an affirmative defense.

During the 2006 Supreme Court term many believed that the Court would answer the question of whether the Due Process Clause protects the right of the accused to …

Confronting The “Ongoing Emergency”: A Pragmatic Approach To Hearsay Evidence In The Context Of The Sixth Amendment, Ellen Liang Yee

ellen yee

The Supreme Court’s path breaking decision in Crawford v. Washington, 541 U.S 36 (2004), held that admission of an extrajudicial testimonial statement by an unavailable declarant-witness violates the Confrontation Clause unless the defendant has an opportunity to cross-examine the declarant. Unfortunately, the determination of admissibility for the trial court judge has not been simplified after Crawford. The role of the trial court judge has now shifted from determining the reliability of the hearsay evidence (as was required before Crawford) to a determination of the testimonial nature of the declarant’s statement. However, with some small exceptions, the Court in Crawford explicitly …

Contraindicated Drug Courts, Josh Eric Bowers

Josh Eric Bowers

Over the past two decades, drug treatment courts have gained traction as popular alternatives to the conventional war on drugs (and to its one-dimensional focus on incarceration). Specifically, the courts are meant to divert addicts from jails and prisons and into coerced treatment. Under the typical model, a drug offender enters a plea of guilty and is enrolled in a long-term outpatient treatment program that is closely supervised by the drug court. If the offender completes treatment, his plea is withdrawn and the underlying charges are dismissed. But, if he fails, he receives an alternative termination sentence. My premise is …

Retribution's Role, John Bronsteen

John Bronsteen

For many decades, criminal law scholars have directed their efforts at finding a philosophical justification of criminal punishment. This endeavor has created a split between retributivists (who deem punishment justified by the wrongdoing of the offender) and utilitarians (who deem it justified by its good consequences such as deterring future crime). This Article suggests that the dialogue between retributivists and utilitarians would profit from a change in the way they frame the central question of what justifies punishment. Specifically, the question could be divided as follows. First, why does the state have a right to punish? And second, why does …

Reforming Eyewitness Identification Procedures Under The Fourth Amendment, Sarah Anne Mourer

Sarah Mourer

This article proposes that the high probability of misidentification associated with unregulated eyewitness identification procedures requires Fourth Amendment protections. This risk of misidentification amounts to a significant privacy intrusion under the Fourth Amendment. The physical aspect of a lineup is recognized by courts as a privacy invasion pursuant to the Fourth Amendment. Courts, such as Davis. v. Mississippi, also suggest that the lack of reliability of pretrial investigatory procedures requires heightened Fourth Amendment protections. This article also examines the fact that a procedural due process analysis of eyewitness identifications alone fails to protect citizens from misidentification and should not be …

United States Implementation Of The International Criminal Court: Towards The Federalism Of Free Nations, Lauren F. Redman

Lauren F Redman

The political winds are changing, and a more liberal United States government may very well be receptive to ratification of the Rome Statute of the International Criminal Court. The nature and scope of international law are also changing. Individuals are sharing responsibility with states for grave breaches of international law, and globalization has resulted in a marked increase in international tribunals deciding disputes affecting individual interests. Despite these trends, Americans have been wary of the International Criminal Court (ICC).

Federal courts principles borrowed from the legal process school can and should be implemented to govern relations between ICC and domestic …

To Speak Or Not To Speak? Navigating The Treacherous Waters Of Parallel Investigations Following The Amendment Of Federal Rule Of Evidence 408, Mikah K. Story Thompson

Mikah K. Story Thompson

This article is the first to explore the true impact of the recently amended Fed. R. Evid. 408 on parallel proceedings. Parallel proceedings exist where the government conducts both a civil and criminal investigation against a defendant for single instance of alleged misconduct. Prior to the rule’s amendment, a defendant facing parallel proceedings had the ability to negotiate settlement of the civil suit without fear that any incriminating statements made during settlement talks would later re-surface in the criminal case. However, the amendment to Rule 408 singles out defendants facing parallel proceedings by stating that the government may use any …

Domestic Surveillance For International Terrorists: Presidential Power And Fourth Amendment Limits, Richard H. Seamon

Richard H Seamon

After 9/11, the President authorized the National Security Agency to conduct warrantless electronic surveillance of American residents. Critics of this so called “Terrorist Surveillance Program” (TSP) say it violates the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Fourth Amendment. Defenders of the TSP counter that, regardless whether it violates FISA, it falls within the President's congressionally irreducible power to protect national security and within the relaxed Fourth Amendment governing national security searches. This article focuses on the overlooked connection between the issues of whether the TSP (1) falls within the President’s powers; or (2) violates the Fourth Amendment. …

Revisiting The Application Of The Exclusionary Rule To The Good Faith Exceptions In Light Of Hudson V. Michigan, Shenequa L. Grey

Shenequa L. Grey

In Hudson v. Michigan, 126 S. Ct. 2159 (2006), the United States Supreme Court overruled decades of precedent and held that evidence obtained in violation of the “knock and announce” rule was admissible in the prosecutions case in chief against the defendant even though this evidence was technically unconstitutionally obtained. In doing so, the Court upheld the knock and announce rule, but strictly applied a “cost/benefit analysis” to conclude that the “exclusionary rule” was not applicable in this context. This analysis is consistent with other exceptions to the exclusionary rule established by the Court as well as with the “good …

The Scarlet Letter Effect: The Adulterous Defendant On Trial For Spousal Murder, Elizabeth H. Matherne

Elizabeth H Matherne

“At the vary least, they should have put the brand of hot iron on Hester Prynne’s forehead.”

Hester Prynne and The Scarlet Letter conjure images of an outcast infinitely branded and burdened by infidelity. As the story model becomes increasingly accepted as the most accurate theory of the juror decision making process, some attorneys are carefully crafting their message to fit such iconic images. Others are being left behind with dire consequences to their clients. In my article, I highlight how one segment of criminal defendants, the Adulterous Defendant on Trial for Spousal Murder, is especially vulnerable to the abuse …

Comity Of Errors: When Federal Sentencing Guidelines Ignore State Law Decriminalizing Sentences, James A. Shapiro

James A. Shapiro

Many states have sentences called “diversionary dispositions” that are not supposed to count as convictions under state law. The purpose of these so-called diversionary dispositions is to give first-time offenders for relatively minor crimes such as shoplifting a chance to keep their criminal records, or “rap sheets,” clean. If they do not commit another crime during the period of the diversionary disposition, then they usually have the opportunity to erase, or “expunge,” the diversionary disposition from their record. But whether they expunge their record or not, the diversionary disposition is never supposed to count as a conviction under state law. …

Forensic Dna Phenotyping: Regulatory Issues, Bert-Jaap Koops, Maurice Schellekens

Bert-Jaap Koops

Forensic DNA phenotyping is an interesting new investigation method: crime-scene DNA is analyzed to compose a description of the unknown suspect, including external and behavioral features, geographic origin and perhaps surname. This method is allowed in some countries but prohibited in a few others. Most countries have not yet taken a stance on this. This article addresses the question to what extent this investigation method should be allowed. The relevant regulatory issues are analyzed: the right of people not to know what their DNA tells about propensities for diseases or other propensities, data protection and privacy, stigmatization and discrimination, and …