Law Commons^™

Rico And Pattern: The Search For Continuity Plus Relationship , Micheal Goldsmith

Cornell Law Review

No abstract provided.

The Doctrine Of Inevitable Discovery: A Plea For Reasonable Limitations, Steven P. Grossman

All Faculty Scholarship

In reinstating the Iowa murder conviction of Robert Williams, the Supreme Court accepted explicitly for the first time the doctrine of inevitable discovery. Applied for some time by state and federal courts, the doctrine of inevitable discovery is a means by which evidence obtained illegally can still be admitted against defendants in criminal cases. Unfortunately, the Court chose to adopt the doctrine without any of the safeguards necessary to insure that the deterrent impact of the exclusionary rule would be preserved, and in a form that is subject to and almost invites abuse.

This article warns of the danger to …

Consequences Of Federalizing Criminal Law, Roger J. Miner '56

Criminal Law

No abstract provided.

Suicidal Rights, Michael S. Ariens

Faculty Articles

The legal debate regarding the right to commit suicide requires a critical review of the relationship between the individual and the community in present liberal political thought. Modern liberal political thought postulates that the government or community must be neutral about what is good both for members of the community and the community itself. It also postulates that there exists a sphere of action which affects solely an individual.

The neutrality postulate and the harm of self/harm to others dichotomy are best explicated by John Stuart Mill in his essay On Liberty, in which Mill separates and categorizes the individual …

Investigative Detentions For Purposes Of Fingerprinting, David A. Schlueter

Faculty Articles

This article focuses on constitutional issues associated with fingerprinting suspects in investigative detention. Following a series of barracks larcenies, Naval Investigative Service (NIS) investigators fingerprinted approximately 100 servicemembers. All those ordered to report to the NIS office for fingerprinting had been present in the unit at the time of the offenses, and among those was the accused, who was later linked to the crime through his fingerprints. Before the accused reported to the NIS office there was no probable cause or reasonable suspicion to believe that he was in any way involved in the crimes. Were the fingerprints admissible?

United …

Self-Defense In Kentucky: A Need For Clarification Or Revision, Robert G. Lawson, William S. Cooper

Law Faculty Scholarly Articles

Recent prosecutions have pushed Kentucky’s concept of self-defense beyond the limits of tolerance for complexity and confusion. There is little doubt that there exists a critical need to clarify or to revise the Kentucky law of self-defense. A demonstration of this need and a description of its nature are the principal objectives of this article. To accomplish these objectives, it is necessary to provide some information about the recent history of homicide and self-defense in Kentucky and to describe some important recent interpretations of this law by the Supreme Court of Kentucky.

Victims In The Criminal Process: A Utilitarian Analysis Of Victim Participation In The Charging Decision, Sarah N. Welling

Law Faculty Scholarly Articles

Crime victims are currently being given the right to participate in criminal prosecutions at both the sentencing and plea bargaining stages. These are important steps in a criminal prosecution, but both the sentence and the plea bargain are dependent on the initial charging decision which determines what crime is to be prosecuted or whether there is to be any prosecution at all. As a prerequisite to both a plea bargain or a sentence, the charging decision is the crux of the prosecution.

Given the importance of the charging decision, and the fact that some jurisdictions have granted victims a right …

Bank Secrecy And Criminal Matters: Cayman Islands And U.S. Cooperative Development, Ian Paget-Brown

Case Western Reserve Journal of International Law

No abstract provided.

Review Essay. What Makes Rape A Crime?, Lynne N. Henderson

Articles by Maurer Faculty

No abstract provided.

The Relationship Of The Court And Defense Counsel: The Impact On Competent Representation And Proposals For Reform, Richard Klein

Scholarly Works

This Article examines the impact of the trial court upon the quality of legal assistance provided the indigent criminal defendant. The court, when confronted with public defenders so overburdened with cases that they have not had the time to adequately prepare, all too often exacerbates the situation by refusing to permit counsel additional time for investigation and preparation. The trial judge may be affected by administrative pressures to dispose of cases, move the calendar, and get pleas. The defender's overload is therefore compounded by the court's overload, and the situation results in the sacrifice of the indigent defendant's right to …

A Reply To Michael Goldsmith, Gerard E. Lynch

Faculty Scholarship

I am grateful for Professor Michael Goldsmith's response to my discussion of RICO. It is always gratifying to find that one's writings have stimulated thought and debate.

Professor Goldsmith's criticisms of my discussion come in three parts. First, he claims that I have misread the history of RICO's adoption. Second, he objects to my criticisms of its scope. Third, he argues that the statute as now drafted serves prosecutorial purposes that would not be captured by the proposals I make for its replacement. Professor Goldsmith's arguments are not persuasive.

A Vice Of Its Virtues: The Perils Of Precision In Criminal Codification, As Illustrated By Retreat, General Justification, And Dangerous Utterances, Kent Greenawalt

Faculty Scholarship

My subject, the problem of precision in criminal codes, is hardly novel. Greater precision has been a major aim of systematic codification, which can specify what behavior is criminal in a way that is more rational, coordinated, and exact than would be possible if liability were determined by occasional statutory enactment, by common-law development, or by a combination of occasional statutes and judicial development. Under this last approach, which was typical in the United States prior to the Model Penal Code, statutes loosely set out the list of offenses and their penalties; critical elements of offenses and many defenses of …

Standards For Organizational Probation: A Proposal To The United States Sentencing Commission, John C. Coffee Jr., Richard Gruner, Christopher D. Stone

Faculty Scholarship

This proposal was prepared by the authors in their capacities as consultants to the United States Sentencing Commission. It has not been adopted or endorsed by the Commission. If adopted, the proposal would constitute Part D(2) of the Sentencing Commission's Organizational Sentencing Guidelines (to be continued in Chapter 8 of the Commission's Guidelines Manual).

Note: United States V. Harvey: Are Criminal Defense Fees More Vulnerable Than Necessary?, Eric Easton

All Faculty Scholarship

In United States v. Harvey, the United States Court of Appeals for the Fourth Circuit held that Congress may not constitutionally require convicted racketeers and drug traffickers to forfeit property used to pay legitimate defense attorney fees. To the extent that such forfeitures and related pre-conviction restraints on transfer are authorized by provisions of the Comprehensive Forfeiture Act of 1984 (the Act), those provisions violate an accused's right to counsel of choice as secured by the Sixth Amendment.This article argues that the court's holding in Harvey was more narrowly drawn than necessary, and that as a consequence criminal defense attorney …

State And Local Enforcement Of The Criminal Immigration Statutes And The Preemption Doctrine, Cecilia Renn

University of Miami Law Review

No abstract provided.

Confronting Rape Shield, Allison I. Connelly

Law Faculty Popular Media

In this newsletter article, Professor Connelly discusses the difficulties faced by defense attorneys in addressing rape shield laws.

Mcnaghten Rules Ok? The Need For Revision Of The Automatism And Insanity Defenses In English Criminal Law, R. D. Mackay

Penn State International Law Review (1982 - 2011)

There has been a resurgence of interest in the codification of "craziness" both in the United States and in England. Most recent legislative reforms in the United States have followed in the wake of the jury's verdict in the Hinckley case, whilst in England renewed interest in revising the insanity defense has been prompted by a report to the Law Commission on the codification of the criminal law. The purpose of this article is first to briefly review relevant reforms in the United States; second to critically analyze the present legal position in England; third to discuss English reform proposals; …

Biblical Atonement And Modern Criminal Law, Jerome Hall

Articles by Maurer Faculty

In Western civilization, a rationally ordered universe and human rationality are the central tenets of theology and moral philosophy. Conceptions, values, and principles implied by these premises have become entrenched in social and legal institutions. Concluding that religious teachings, even those of antiquity, are consistent with modern legal principles is reasonable, and almost common sense. An inquiry into whether this relationship is to any extent causal is fascinating. Professor Jerome Hall, the first President of AMINTAPHIL, discusses the relationship between the Christian doctrine of atonement and principles of modern criminal law.

Felony Murder And The Misdemeanor Of Attempted Escape: A Legislative Error In Search Of Correction, Peter J. Mcquillan

Fordham Urban Law Journal

This article argues that a legislative reconsideration of the New York felony murder doctrine is timely and essential. The author traces the origins of New York's felony murder statute and recent efforts to limit its scope. The author argues that the felony murder doctrine contravenes the modern philosophy of adjudication based on subjective factors such as mens rea, eroding the link between criminal liability and moral culpability.

Protecting Battered Women: A Proposal For Comprehensive Domestic Violence Legislation In New York, Lisa R. Beck

Fordham Urban Law Journal

This note proposes that New York implement a mandatory arrest policy for certain types of domestic violence. The author first examines New York's current methods of addressing domestic violence, including previous attempts at decriminalization, judicial remedies, and the effectiveness of orders of protection. The author then describes the issues of the current discretionary arrest policy. The note examines domestic violence legislation in other states, then proposes a comprehensive statutory scheme to address domestic violence in New York state.

Evidentiary Use Of Other Crime Evidence: A Survey Of Recent Trends In Criminal Procedure, Susan Stuart

Law Faculty Publications

No abstract provided.

Victim Participation In Plea Bargains, Sarah N. Welling

Law Faculty Scholarly Articles

There is a trend in the criminal law today to focus on the rights of victims. This trend has been manifested in actions by legislatures, courts, the President of the United States and others. Various programs have been implemented to ameliorate the crime victim's experience. For example, many states now provide compensation for victims, and victim/witness assistance programs have sprung up around the country. It has also been suggested that the victim's lot should be improved by granting them a right to participate in the prosecution of the defendant. This article examines whether victims should be accorded a right to …

Drugs And Small Arms: Can Law Stop The Traffic?, Christopher L. Blakesley

Scholarly Works

Professor Blakesley presides over this panel discussion on laws combating the illegal importation of drugs and small arms, and their implications for international and domestic law.

Rico: The Crime Of Being A Criminal Parts I And Ii, Gerard E. Lynch

Faculty Scholarship

One of the most controversial statutes in the federal criminal code is that entitled "Racketeer-Influenced and Corrupt Organizations," known familiarly by its acronym, RICO. Passed in 1970 as title IX of the Organized Crime Control Act of 1970, RICO has attracted much attention because of its draconian penalties, including innovative forfeiture provisions; its broad draftsmanship, which has left it open to a wide range of applications, not all of which were foreseen or intended by the Congress that enacted it; and the sometimes dramatic prosecutions that have been brought in its name.

RICO's complexity has attracted several efforts to unscramble …

Rico: The Crime Of Being A Criminal Parts Iii And Iv, Gerard E. Lynch

Faculty Scholarship

In the first portion of this study, we saw that the Supreme Court in its 1981 Turkette decision endorsed what was already the consensus view of the courts of appeals that a group of individuals associated in fact to pursue entirely illegitimate purposes could constitute a RICO enterprise. Prosecutions of such associations have quickly become the leading use of the statute. It can be reliably estimated that more than forty percent of the reported appellate cases involving RICO indictments concern prosecutions in which the alleged enterprise was such an illicit association. When the cases are classified by the nature of …

Criminal Law, C. B. Garren Jr., Michael A. Hill, Connie F. Hoyle-Payne, Frank A. Schiller, Albert L. Norton Jr.

South Carolina Law Review

No abstract provided.

Silencing Gideon's Trumpet: The Plight Of The Indigent Prisoner, Allison I. Connelly

Law Faculty Popular Media

In this newsletter article, Professor Connelly discusses the difficulties faced by indigent prisoners in gaining access to the justice system.

Dismantling The Exclusionary Rule: United States V. Leon And The Courts Of Washington—Should Good Faith Excuse Bad Acts?, Catherine Cruikshank

Seattle University Law Review

This Note will review briefly the history of the exclusionary rule under fourth amendment jurisprudence, with special emphasis given to the purposes the rule has traditionally been thought to serve. The significance of the Leon decision then will be examined in light of the emergence in Washington of an interpretation of article I, section 7 that diverges from the Supreme Court's interpretations of the fourth amendment. This Note will conclude by discussing how article I, section 7 continues to embody the several purposes traditionally served by the exclusionary rule.

The Court-Ordered Predisposition Evaluation Under Washington's Juvenile Justice Act: A Violation Of The Privilege Against Self-Incrimination?—Wash. Rev. Code § 13.40, Judith H. Ramseyer

Seattle University Law Review

This Comment analyzes the significance of the principles animating the constitutional privilege against self-incrimination by first looking at the purposes of Washington’s Juvenile Justice Act; second, by examining the status of the privilege against self-incrimination during sentencing; and third, by applying the values protected by the privilege to the use of predisposition psychological evaluations in Washington juvenile courts.

The Improper Use Of Presumptions In Recent Criminal Law Adjudication, Charles W. Collier

UF Law Faculty Publications

This note argues that, in developing the contemporary mandatory-permissive standard, the Supreme Court has misunderstood the effects of presumptions on juries. Presumptions that are ‘permissive’ in theory may nevertheless be ‘mandatory’ in fact, thereby leading some juries to convict regardless of their beliefs and inclinations. Thus, these legal presumptions may undermine the moral sense and political function of the jury.

Part I of this note shows, through doctrinal analysis, that the mandatory-permissive distinction is an anomaly in the Court's jurisprudence. Part II shows that this distinction is at variance with a substantial body of empirical social science research. This part …