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2009

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Articles 1 - 30 of 186

Full-Text Articles in Law

Summary Of Thompson V. State, 124 Nev. Adv. Op. 59, Stephanie S. Buntin Dec 2009

Summary Of Thompson V. State, 124 Nev. Adv. Op. 59, Stephanie S. Buntin

Nevada Supreme Court Summaries

Appeal from a judgment of conviction by jury of conspiracy to commit a crime, burglary, robbery, first-degree kidnapping, and attempted grand larceny auto.


Summary Of Ouanbengboune V. State, 125 Nev. Adv. Op. No. 56, Ammon Francom Dec 2009

Summary Of Ouanbengboune V. State, 125 Nev. Adv. Op. No. 56, Ammon Francom

Nevada Supreme Court Summaries

An appeal from an Eighth Judicial District Court judgment of conviction, pursuant to a jury verdict, of first-degree murder with the use of a deadly weapon and robbery with the use of a deadly weapon.


Deadly Dilemmas Ii: Bail And Crime, Larry Laudan, Ronald J. Allen Dec 2009

Deadly Dilemmas Ii: Bail And Crime, Larry Laudan, Ronald J. Allen

Chicago-Kent Law Review

This is another in a series of papers examining the interaction between the implications of the deadly dilemma of governing that virtually all governmental action involves unavoidable conflict between equally laudatory goals and the conventional way of thinking about social errors. Typically the pursuit of any particular goal has as its consequence precisely the kind of harm that is desired to be avoided. For example, serious felons are sent to prison in part to protect innocent parties from their future predations, but those same felons often prey upon fellow prisoners, including murder. Moreover, felonies committed in prison only begin the ...


Replacing The Exclusionary Rule: Fourth Amendment Violations As Direct Criminal Contempt, Ronald J. Rychlak Dec 2009

Replacing The Exclusionary Rule: Fourth Amendment Violations As Direct Criminal Contempt, Ronald J. Rychlak

Chicago-Kent Law Review

The exclusionary rule, which bars from admission evidence obtained in violation of the Fourth Amendment's prohibition of unreasonable searches and seizures, is a bedrock of American law. It is highly controversial, but there seems to be no equally effective way to protect citizens' rights. This paper proposes that an admissibility standard be adopted that is in keeping with virtually every jurisdiction around the world other than the United States. Thus, before ruling evidence inadmissible, the court would consider the level of the constitutional violation, the seriousness of the crime, whether the violation casts substantial doubt on the reliability of ...


Fourth Amendment Federalism And The Silencing Of The American Poor, Andrew E. Taslitz Dec 2009

Fourth Amendment Federalism And The Silencing Of The American Poor, Andrew E. Taslitz

Chicago-Kent Law Review

In Virginia v. Moore, police officers searched Moore incident to an arrest for a minor traffic infraction for which Virginia statutory law in fact prohibited arrest. The officers found cocaine on Moore's person, arresting him for that crime too. The United States Supreme Court ultimately found that the arrest for the traffic infraction and the subsequent search were valid under the federal Constitution's Fourth Amendment. Central to the Court's reasoning was its insistence that the state statute was irrelevant. Any contrary conclusion, explained the Court, would wrongly make the Fourth Amendment's meaning vary from place to ...


Intentional Wrongful Conviction Of Children, Victor Streib Dec 2009

Intentional Wrongful Conviction Of Children, Victor Streib

Chicago-Kent Law Review

Intentional wrongful convictions in cases involving child offenders may occur when judges have insufficient evidence proving any crime by the child but feel a strong need for the courts to intervene in the child's life and behavior. They believe that the negative factors attached to such a status are worth suffering if the child gains entry into a desired state program. This is wrongfully convicting the child "for the child's own good." Juvenile court judges too often receive knowledge of the child's background and previous record prior to any trial or hearing in order to devise the ...


The Comparative Nature Of Punishment, Adam Kolber Dec 2009

The Comparative Nature Of Punishment, Adam Kolber

Faculty Scholarship

No abstract provided.


"Once Victim, Always Victim": Compensated Individuals Under The Amended Sentencing Guidelines On Fraud, Jacqueline Harrington Dec 2009

"Once Victim, Always Victim": Compensated Individuals Under The Amended Sentencing Guidelines On Fraud, Jacqueline Harrington

Michigan Law Review

Until recently, courts disagreed over whether individuals who were compensated by a third party such as a bank or insurance company ought to count as victims for purposes of the multiple-victim sentencing enhancement in the Federal Sentencing Guidelines on Fraud. The most recent Amendments to the Guidelines resolve this split, permitting compensated individuals to be counted as victims where their identity was used in the commission of the fraud. However, the new Guidelines do not resolve a separate split, likely to become more divisive under the new Guidelines, over whether both compensated individuals and their compensators can simultaneously be treated ...


The Stigma Of Conviction: Coram Nobis, Civil Disabilities, And The Right To Clear One's Name, David Wolitz Dec 2009

The Stigma Of Conviction: Coram Nobis, Civil Disabilities, And The Right To Clear One's Name, David Wolitz

BYU Law Review

No abstract provided.


Innocence, Evidence, And The Courts, Morgan Cloud Dec 2009

Innocence, Evidence, And The Courts, Morgan Cloud

Chicago-Kent Law Review

No abstract provided.


The Roberts Court's Failed Innocence Project, Janet C. Hoeffel Dec 2009

The Roberts Court's Failed Innocence Project, Janet C. Hoeffel

Chicago-Kent Law Review

In this article, Professor Hoeffel discusses the Roberts Court's obvious struggle with its actual innocence jurisprudence. It is a struggle that was only theoretical in the days before DNA exonerations. While the Court had two opportunities to clarify the role of wrongful convictions in the criminal justice system, it has declined to do so. In House v. Bell, the Court ratcheted up the standard of proof for freestanding constitutional claims of innocence to a level no petitioner could understand, much less meet. Then, in District Attorney's Office for the Third Judicial District v. Osborne, the Court held that ...


Taking Reasonable Doubt Seriously, Arnold H. Lowey Dec 2009

Taking Reasonable Doubt Seriously, Arnold H. Lowey

Chicago-Kent Law Review

In recent years, we have discovered a spate of factually innocent people who have been convicted. In this article, Professor Loewy contends that the failure of juries to take reasonable doubt seriously contributes to this phenomenon. Professor Loewy via an illustrative fictitious case explains that juries might be reluctant to give the defendant the benefit of a reasonable doubt because of their concern about putting dangerous criminals back on the street. He then asks whether we really want juries to take reasonable doubt seriously. Concluding that we do, he examines how we can do that. Loewy concludes that the best ...


White Collar Innocence: Irrelevant In The High Stakes Risk Game, Ellen S. Podgor Dec 2009

White Collar Innocence: Irrelevant In The High Stakes Risk Game, Ellen S. Podgor

Chicago-Kent Law Review

When one thinks of "wrongful convictions and reliability in the criminal justice process" one often thinks of street crime convictions of defendants later proven innocent through DNA or other scientific evidence. But this essay presents a new dimension to this issue—the white collar crime context. Three stories are considered here: Arthur Andersen LLP, Jamie Ois, and Jeffrey Skilling—all of whom proceeded to trial after criminal charges were brought against them. These three are contrasted with KPMG, Gene Foster, and Andrew Fastow, all of whom secured plea agreements or deferred prosecution agreements with reduced sentences and finite results. The ...


The Role Of Innocence Commissions: Error Discovery, Systemic Reform Or Both?, Kent Roach Dec 2009

The Role Of Innocence Commissions: Error Discovery, Systemic Reform Or Both?, Kent Roach

Chicago-Kent Law Review

This article examines the role of innocence commissions as emerging criminal justice institutions. It draws a distinction between commissions devoted to the correction of errors in individual cases and commissions which make systemic reform recommendations in an effort to prevent wrongful convictions in future cases. The British and Scottish Criminal Cases Review Commission and the North Carolina Innocence Inquiry Commission are examined as examples of the former type of commission while Canadian public inquiries and commissions in Illinois, California and Virginia are examined as examples of the latter type of commission. Innocence commissions have had difficulties combining error correction and ...


Second Thoughts On Damages For Wrongful Convictions, Lawrence Rosenthal Dec 2009

Second Thoughts On Damages For Wrongful Convictions, Lawrence Rosenthal

Chicago-Kent Law Review

After the DNA-inspired wave of exonerations of recent years, there has been widespread support for expanding the damages remedies available to those who have been wrongfully accused or convicted. In this article, Professor Rosenthal argues that the case for providing such compensation is deeply problematic, whether advanced in terms of no-fault or fault-based liability. Although a regime of strict liability is sometimes thought justifiable as a means of creating an economic incentive to scale back such liability-producing conduct to optimal levels, this rationale has little application to the criminal justice system. Instead, a regime of strict liability would operate as ...


Reliability, Justice And Confessions: The Essential Paradox, Russell L. Weaver Dec 2009

Reliability, Justice And Confessions: The Essential Paradox, Russell L. Weaver

Chicago-Kent Law Review

This paper deals with the issue of "reliability" in the criminal justice process, and the rising number of wrongful convictions that have been identified in recent years. Using modern evidentiary techniques, a rising number of individuals have been found "innocent" of the crimes for which they have been convicted. These instances of wrongful conviction have involved individuals who spent time on death row, awaiting execution, only to be completely exonerated. There are various reasons for these wrongful convictions, including prosecutorial misconduct and systemic failures such as inadequate indigent representation. This paper focuses on another systemic failure: difficulties with the confessions ...


The Irrelevancy Of The Fourth Amendment In The Roberts Court, Thomas K. Clancy Dec 2009

The Irrelevancy Of The Fourth Amendment In The Roberts Court, Thomas K. Clancy

Chicago-Kent Law Review

Since John Roberts Jr. became Chief Justice of the Supreme Court, there has been a measurable decline in the number of cases addressing Fourth Amendment questions. This article examines the reasons for that decline and predicts the substantial elimination of Fourth Amendment litigation in the Roberts Court. The prediction is based on several premises, including the lack of interest of the Justices on the Court concerning search and seizures principles and two significant recent cases, Pearson v. Callahan and United States v. Herring, which presage a significant decline in the number of lower court cases addressing the merits of the ...


The Fourth Amendment, The Exclusionary Rule, And The Roberts Court: Normative And Empirical Dimensions Of The Over-Deterrence Hypothesis, Donald Dripps Dec 2009

The Fourth Amendment, The Exclusionary Rule, And The Roberts Court: Normative And Empirical Dimensions Of The Over-Deterrence Hypothesis, Donald Dripps

Chicago-Kent Law Review

This essay engages in the risky business of predicting future Supreme Court developments. In the first part, I analyze the evidence suggesting that the Roberts Court might abolish the exclusionary rule. The critique of exclusion in Hudson v. Michigan is both less and more probative than appears at first blush. Part II turns to some less obvious evidence pointing in the direction of retaining the exclusionary rule. First, abolition of the exclusionary rule is inconsistent with the Hudson majority's apparent content with prevailing police behavior. Second, abolition of the exclusionary rule would curtail the power of the Supreme Court ...


Mapp V. Ohio'S Unsung Hero: The Suppression Hearing As Morality Play, Scott E. Sundby Dec 2009

Mapp V. Ohio'S Unsung Hero: The Suppression Hearing As Morality Play, Scott E. Sundby

Chicago-Kent Law Review

The exclusionary rule is back under the judicial magnifying glass. Recent opinions, most notably by Justice Scalia, have sparked speculation that the Roberts Court is inclined to overrule Mapp v. Ohio and send Fourth Amendment disputes back to the realm of civil suits and police disciplinary actions. As the Court's rulings have made clear, any reevaluation of the exclusionary rule's future will be conducted under the now familiar rubric of whether the rule's "benefit" of deterring police misbehavior outweighs the "cost" of lost evidence and convictions.

This essay argues that if any such reevaluation does occur, the ...


Melendez-Diaz And The Right To Confrontation, Craig M. Bradley Dec 2009

Melendez-Diaz And The Right To Confrontation, Craig M. Bradley

Chicago-Kent Law Review

In Crawford v. Washington, the Supreme Court overruled Ohio v. Roberts and adopted new law concerning the use of hearsay testimony at criminal trials. This was based on the Sixth Amendment's command that "In all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him .. " On its face this provision seems to say that the accused has the right to cross-examine anybody who testifies for the prosecution at trial, whether as a live witness or through hearsay. The Supreme Court acknowledged much of this in Crawford, but limited the right of cross-examination to ...


Stacking In Criminal Procedure Adjudication;Symposium On Criminal Procedure: Judicial Proceedings, Luke M. Milligan Dec 2009

Stacking In Criminal Procedure Adjudication;Symposium On Criminal Procedure: Judicial Proceedings, Luke M. Milligan

Chicago-Kent Law Review

The institutionalist branch of "Law and Courts" studies how judges incorporate institutional constraints into their decision-making processes. Congressional constraints on judicial review, as the literature currently stands, fall into one of two general classes: overrides and Court-curbing measures. This taxonomy, however, is incomplete. Neither overrides nor curbing measures are needed to explain the not uncommon situation where a policy-oriented Justice deviates from a preferred vote based on the belief that such a vote will prompt Congress to alter an "insulated base rule" in a way that disrupts the Justice's larger policy agenda. An "insulated base rule" is a Congressional ...


Georgia V. Randolph, The Red-Headed Stepchild Of An Ugly Family: Why Third Party Consent Search Doctrine Is An Unfortunate Fourth Amendment Development That Should Be Restrained, Aubrey H. Brown Dec 2009

Georgia V. Randolph, The Red-Headed Stepchild Of An Ugly Family: Why Third Party Consent Search Doctrine Is An Unfortunate Fourth Amendment Development That Should Be Restrained, Aubrey H. Brown

William & Mary Bill of Rights Journal

No abstract provided.


Summary Of Glover V. Dist. Court, 125 Nev. Adv. Op. No. 53, Amy Kominsky Nov 2009

Summary Of Glover V. Dist. Court, 125 Nev. Adv. Op. No. 53, Amy Kominsky

Nevada Supreme Court Summaries

This case involved a writ of prohibition to determine if Defendant’s double jeopardy rights were violated when the district court ordered a mistrial and subsequent retrial as a “manifest necessity” based on potential jury bias because defense counsel impermissibly argued facts not in evidence.


The Fairness Of A Fair Trial: Not Guilty Pleas And The Right To Effective Assistance Of Counsel, Leigh Tinmouth Nov 2009

The Fairness Of A Fair Trial: Not Guilty Pleas And The Right To Effective Assistance Of Counsel, Leigh Tinmouth

Boston College Law Review

The pervasiveness of plea bargaining in our modern justice system has led too many courts to conclude that the Sixth Amendment right to effective assistance of counsel applies to not guilty pleas. This Note argues that, although the United States Supreme Court has never directly addressed this issue, its decisions inform a Sixth Amendment analysis and indicate that the right to effective assistance of counsel is limited to providing the defendant a fair trial. The Court has suggested that a critical stage at which this right attaches must, in contrast to a not guilty plea, affect the fairness of a ...


Setting The Standard: A Critique Of Bonnie's Competency Standard And The Potential Of Problem-Solving Theory For Self-Representation At Trial, E. Lea Johnston Nov 2009

Setting The Standard: A Critique Of Bonnie's Competency Standard And The Potential Of Problem-Solving Theory For Self-Representation At Trial, E. Lea Johnston

UF Law Faculty Publications

In Indiana v. Edwards, the U.S. Supreme Court held that the Sixth Amendment permits a trial court to impose a higher competency standard for self-representation than to stand trial. The Court declined to specify the contents of a permissible representational competence standard, but cited with support the construct of adjudicative competence developed by Professor Richard Bonnie. While Bonnie's proposal may provide an appropriate framework for evaluating the competence of represented defendants' decisions, it is at most a starting point for defining the capacities needed for self-representation at trial. This Article begins by exposing three reasons why Bonnie's ...


Race And The Doctrine Of Self Defense: The Role Of Race In Determining The Proper Use Of Force To Protect Oneself, Richard Klein Nov 2009

Race And The Doctrine Of Self Defense: The Role Of Race In Determining The Proper Use Of Force To Protect Oneself, Richard Klein

Scholarly Works

No abstract provided.


Criminal Law And Procedure, Michael T. Judge, Stephen R. Mccullough Nov 2009

Criminal Law And Procedure, Michael T. Judge, Stephen R. Mccullough

University of Richmond Law Review

No abstract provided.


Summary Of Mendoza-Lobos V. State, 125 Nev. Adv. Op. No. 49, Ryan Mcinerney Oct 2009

Summary Of Mendoza-Lobos V. State, 125 Nev. Adv. Op. No. 49, Ryan Mcinerney

Nevada Supreme Court Summaries

Appellant Douglas Mendoza-Lobos was convicted of one count each of burglary, robbery with the use of a deadly weapon, sexual assault with the use of a deadly weapon, attempted sexual assault with the use of a deadly weapon, assault with a deadly weapon, and battery with a deadly weapon. On appeal, Mendoza-Lobos argued that the district court failed to comply with NRS 193.165(1) in imposing the sentences for the deadly weapon enhancements because it failed to articulate sufficient findings on the record. As a preliminary matter, the Court addressed whether NRS 193.165(1) (1) violated the separation-of-powers ...


Summary Of Wyman V. State, 125 Nev. Adv. Op. 46, Karlee Phelps Oct 2009

Summary Of Wyman V. State, 125 Nev. Adv. Op. 46, Karlee Phelps

Nevada Supreme Court Summaries

Appeal from a judgment of conviction for second-degree murder, challenging the district court’s denial of Appellant’s motion to dismiss for pre-indictment delay and Appellant’s motion for certificate of materiality to obtain out-of-state mental health records.


Prosecuting Torturers And Closing Guantanamo, Randall Coyne Oct 2009

Prosecuting Torturers And Closing Guantanamo, Randall Coyne

Randall Coyne

No abstract provided.