Law Commons^™

“Reverse” 404(B) Is Not An Evidence Law Issue: A Call To Revive The Compulsory Process Clause As A Vehicle For Evidence Admission, Clay Wilwol

New Mexico Law Review

In criminal cases, Federal Rule of Evidence 404(b) is typically used by prosecutors seeking to introduce non-propensity “crimes, wrongs, or other acts” evidence against defendants. However, sometimes it is the defendant who seeks to use the Rule as a vehicle for evidence admissibility, either to provide such evidence to implicate the guilt of a third party or to help prove the intent or motive of alleged victims in violent crimes involving altercations. This latter defense-proffered use of Rule 404(b) has been termed “reverse” 404(b), and currently there is disagreement among courts (both federal and state) regarding how to assess the …

The United States Supreme Court’S Enduring Misunderstanding Of Insanity, David Dematteo, Daniel A. Krauss, Sarah Fishel, Kellie Wiltsie

New Mexico Law Review

Within mental health law, the legal defense of insanity has received a disproportionate amount of attention. Classified as a legal excuse, the insanity defense generally negates legal blameworthiness for criminal defendants who successfully prove that at the time of the offense, they did not know right from wrong or were unable to conform their conduct to the requirements of the law, due to an underlying mental health condition. The insanity defense has a lengthy history in the United States, with several different formulations and numerous court decisions addressing various aspects of the defense. Despite its firm entrenchment in U.S. criminal …

Using Burdens Of Proof To Allocate The Risk Of Error When Assessing Developmental Maturity Of Youthful Offenders, David L. Faigman, Kelsey Geiser

William & Mary Law Review

Behavioral and neuroscientific research provides a relatively clear window into the timing of developmental maturity from adolescence to early adulthood. We know with considerable confidence that, on average, sixteen-year-olds are less developmentally mature than nineteen-year-olds, who are less developmentally mature than twenty-three-year-olds, who are less developmentally mature than twenty-six-year-olds. However, in the context of a given case, the question presented might be whether a particular seventeen-year-old defendant convicted of murder is “developmentally mature enough” that a sentence of life without parole can be constitutionally imposed on him or her. While developmental maturity can be accurately measured in group data, it …

Neuroscience, Criminal Sentencing, And Human Rights, Elizabeth Shaw

William & Mary Law Review

This Article discusses ways in which neuroscience should inform criminal sentencing in the future. Specifically, it compares the ethical permissibility of traditional forms of punishment, such as incarceration, on the one hand, and rehabilitative “neurointerventions” on the other. Rehabilitative neurointerventions are interventions that aim directly to modify brain activity in order to reduce reoffending. Various jurisdictions are already using techniques that could be classed as neurointerventions, and research suggests that, potentially, an even wider range of rehabilitative neurointerventions may be developed. This Article examines the role of human rights (in particular, the moral right to mental integrity and the legal …

Cross-Examination Of Witnesses In Chinese Criminal Courts: Theoretical Debates, Practical Barriers, And Potential Solutions, Zhiyuan Guo

Vanderbilt Journal of Transnational Law

Questioning witnesses is essential for both fact-finding and ensuring the defendant's right to confrontation in criminal trials. Part I introduces the recently released judicial interpretation on the Application of Criminal Procedure Law by China's Supreme Court as a background for discussion of this Article. In Part II, the author sets the stage by arguing that resolution of questions concerning examination and cross-examination of witnesses is essential to the effective achievement of China's trial-centered criminal procedure law reform. In Part III, a historical review is given of the academic debate on the questioning of witnesses in Chinese criminal courts. Part IV …

The Democratizing Potential Of Algorithms?, Ngozi Okidegbe

Faculty Scholarship

Jurisdictions are increasingly embracing the use of pretrial risk assessment algorithms as a solution to the problem of mass pretrial incarceration. Conversations about the use of pretrial algorithms in legal scholarship have tended to focus on their opacity, determinativeness, reliability, validity, or their (in)ability to reduce high rates of incarceration as well as racial and socioeconomic disparities within the pretrial system. This Article breaks from this tendency, examining these algorithms from a democratization of criminal law perspective. Using this framework, it points out that currently employed algorithms are exclusionary of the viewpoints and values of the racially marginalized communities most …

Singapore's Approach To Sex By Deception, Wing Cheong Chan

Research Collection Yong Pung How School Of Law

A vigorous debate about whether sex by deception ought to be considered rape appears tohave caught the imagination of criminal law theorists and commentators in recent years. Thisdebate is by no means devoid of practical implications as shown by case law from variousjurisdictions which have had to grapple with the issue. This article sets out the approach taken inSingapore and suggests that it may offer a practical solution in this contentious area of criminallaw and the understanding of consent.

Interrogating The Nonincorporation Of The Grand Jury Clause, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

With the Supreme Court's recent incorporation-in Ramos v. Louisiana of the Sixth Amendment's jury unanimity requirement to apply to the states, the project of "total incorporation" is all but complete in the criminal procedure context. Virtually every core criminal procedural protection in the Bill of Rights has been incorporated through the Due Process Clause of the Fourteenth Amendment to constrain not only the federal government but also the states with one exception. The Fifth Amendment's grand jury right now stands alone as the only federal criminal procedural right the Supreme Court has permitted states to ignore. In one of the …

Dna Exonerations And Stakeholder Responses: A Case Of Cognitive Dissonance, Anne Richardson Oakes, Julian Killingley

Tennessee Law Review

The availability of DNA testing developed in the 1980s transformed the ability of prosecutors to secure convictions while providing Innocence Projects with the tools to overturn them. However, DNA exonerations which establish conclusively that a person convicted of a crime is in fact innocent, can represent a major threat to the value systems and therefore the self-belief of stakeholders who acted in good faith and in the genuine but mistaken belief that the exoneree was guilty. This Article reports on the findings of an investigation into stakeholder responses to DNA exonerations between 1990-1999 when DNA evidence was new and more …

The Saga Of Reginald Mcfadden—"Pennsylvania's Willie Horton" And The Commutation Of Life Sentences In The Commonwealth: Part I, Regina Austin

JCLC Online

The saga of the commutation of Reginald McFadden is a tortuous story of blunders, coincidences, and numerous instances of governmental officials tempting fate. It has the makings of a Serial true-crime podcast. In states throughout the country, there are lifers who are unfairly paying the price for the actions of one person who should never have had her or his life sentence commuted. This is the first in a series of two essays that explore Reginald McFadden’s commutation.

Big Brother Is Scanning: The Widespread Implementation Of Alpr Technology In America’S Police Forces, Yash Dattani

Vanderbilt Journal of Entertainment & Technology Law

Automatic License Plate Readers (ALPRs) are an increasingly popular tool in police departments across the United States. At its core, ALPR technology functions in a relatively simple manner. The technology has two major components: the actual scanners, which record license plates, and the databases which collect, compile, and analyze this information for officers to access at the click of a button. Although this technology first came to the United States in 1998 as a form of rudimentary border security, its purpose and capabilities have rapidly grown. Now, in 2022, ALPR has evolved into a frighteningly powerful piece of technology, potentially …

When A Second Change Gets A Second Chance: Reasonableness Review Reigns For Motions Under Section 404 (B) Of The First Step Act On Appeal, Patrick W. Riley

American University Law Review

The First Step Act of 2018 was an historic criminal justice reform bill that, among its many provisions, retroactively reduced the disparity in sentencing for offenses involving crack and powder cocaine. Before 2010, federal law mandated the same minimum criminal penalties for conduct involving an amount of crack cocaine one hundred times smaller than an amount of powder cocaine. In 2010, Congress passed the Fair Sentencing Act, which reduced this disparity from 100:1 to 18:1. However, the updated penalties only applied to sentences imposed after the passage of the Fair Sentencing Act. Those already sentenced under the 100:1 ratio were …

The Trajectory Of Federal Gun Crimes, Jacob D. Charles, Brandon L. Garrett

Faculty Scholarship

Federal gun prosecutions have been a significant part of the federal docket for decades. In this Article, we explore for the first time the evolution of federal gun crimes. They cover conduct ranging from gun distribution and possession of particular weapons such as machine guns to use by drug traffickers and individual possession of !rearms by felons. Second, we describe how in practice gun charges have adapted to criminal law priorities of Congress and federal prosecutors over time. More recently, they became prominent in connection with immigration prosecutions, while in the 1980s, drug gangs were the priority. During this time, …

When Jail & Prison Sentences Become Death Sentences: How Willfully Exposing Incarcerated Persons To Covid-19 Amounts To Cruel & Unusual Punishment, Arielle Aboulafia

Human Rights Brief

Eric Warner called his older brother Hank from San Quentin State Prison almost every Sunday. Though the prison only allowed the brothers to speak for fifteen minutes each week, the two spoke about their lives. In June 2021, Eric stopped calling, and Hank became worried. Hank tried to get in touch with the prison. However, his calls were met with a dead-end voicemail each time. He recalls that he “knew, by not hearing anything, that something was not good.” The following month, prison personnel returned Hank’s calls and told him that his brother Eric had been hospitalized. Later that month, …

Capital Punishment And The ‘Acnestis’ Of Its Modern Reformation, Sudarsanan Sivakumar

Human Rights Brief

The term “Capital Punishment” encompasses any penalizing punishment that results in the death of people accused of committing a crime.1 This damnation dates back to the Eighteenth Century B.C. in the “Code of Hammurabi,” a misemployed code that ensured the death penalty for twenty-five distinct crimes. People convicted of crimes were made to suffer for their actions in horrific ways, including being burnt alive and drowning.2 Since then, death by hanging has been the conventional method for capital punishment in most of the world.

Against Criminal Law Localism, Brenner M. Fissell

Maryland Law Review

No abstract provided.

The Insidious Effect Of Soundbites: Why Fences Aren't Punishment, Theresa Gabaldon

American University Law Review

This Article was inspired by two recent Supreme Court decisions dealing with the ability of the Securities and Exchange Commission to seek disgorgement of unlawfully obtained profits. The topic, however, is not disgorgement. That is a different article, published by the author in the Cornell Lazu Reviezu in 2020, on which this one builds. This Article focuses instead on jurisprudential methodology. The Court has begun to exhibit an unfortunate penchant for jurisprudence by soundbite—the functional equivalent of Googling its ozun precedents for pithy quotes taken out of context from inapt cases. The results are, to put it politely, mischievous.

This …

Off The Record: Preserving Statistical Information After Juvenile Expungement, Eve Rips

American University Law Review

Although expungement is often defined as the destruction of an individual’s record., expungement statutes vary tremendously in the extent to which they lead to records being destroyed. In some states, juvenile expungement statutes have impacted the accuracy of data on arrest rates: when the record is destroyed, the state loses access to the statistical information contained in it. Juvenile expungement laws play a critical role in rehabilitation, but completely forgetting the information contained in a record, can also obscure history of criminalizing children and teens and can make it difficult to document inequities accurately.

This Article examines how to protect …

Countermajoritarian Criminal Law, Michael L. Smith

Faculty Articles

Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year. All too often, culpability is a minimal or nonexistent aspect of this phenomenon. Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people's actions. Recent scholarship has criticized not only the scope and impact of these laws but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.

This Article adds to and amplifies this criticism by …

Drug Supervision, Jacob Schuman

Faculty Scholarship

Critics of harsh drug sentencing laws in the United States typically focus on long prison sentences. But the American criminal justice system also inflicts a significant volume of drug-related punishment through community supervision (probation, parole, and supervised release). Over one million people are under supervision due to a drug conviction, and drug activity is among the most common reasons for violations. In an age of “mass supervision,” community supervision is a major form of drug sentencing and drug policy.

In this Article, I analyze the federal system of supervised release as a form of drug policy. Congress created supervised release …

Criminal Disenfranchisement In State Constitutions: A Marker Of Exclusion, Punitiveness, And Fragile Citizenship, Nora V. Demleitner

Lewis & Clark Law Review

Many states prominently include criminal disenfranchisement provisions in their constitutions, which powerfully, and more permanently than state laws, convey the states’ values. These provisions also underscore the ease with which the protected status of citizenship, most pronounced in the right to vote, can be lost. Using the debate in Virginia over how to change the state’s constitution to limit disenfranchisement as a starting point, this Article highlights the need for inclusive voting provisions in state constitutions to reflect a broad conception of citizenship rights and the expansion of the franchise over the last century. Reform demands must be seen in …

One Step Further For Protection: Why Oregon Should Adopt Additional Requirements For The Appointment Of Counsel To Youths Accused Of Crime, Ivy-Rose Kramer

Lewis & Clark Law Review

Current procedures for interrogating and investigating youths accused of crime do not provide sufficient protection for youths and their rights. Oregon should follow the example of other states that have adopted greater protections for youths—beyond what the Constitution currently requires. Specifically, Oregon should enact legislation that would provide counsel to youths who are (1) detained and being investigated based on probable cause of criminal activity; (2) undergoing custodial interrogation; and (3) in possession of property law enforcement wishes to search. This consultation with counsel should not be waivable. Such a law would counteract the harmful effects of disparate treatment and …

Set Up To Fail: Youth Probation Conditions As A Driver Of Incarceration, Jyoti Nanda

Lewis & Clark Law Review

Youth probation is the most common form of punishment for youth in the United States criminal legal system, with nearly a quarter of a million youth currently under supervision. Yet the role youth probation conditions play in the incarceration of youth has not been the focus of legal scholarship. Youth probation is a court-imposed intervention where young people remain at home under the supervision of a youth probation officer and are required to adhere to probation conditions, rules, and court-ordered conditions. The orders rely on standardized terms on youth probation condition forms. This is the first scholarly Article to excavate …

Protecting The Substantive Due Process Rights Of Immigrant Detainees: Using Covid-19 To Create A New Analogy, Liamarie Quinde

Journal of Criminal Law and Criminology

While the Supreme Court has defined certain constitutional protections for incarcerated individuals, the Court has never clearly defined the due process rights of immigrant detainees in the United States. Instead, the Supreme Court defers to the due process protections set by Congress when enacting U.S. immigration law. Increasingly, the federal courts defer to Congress and the Executive’s plenary power over immigration law and enforcement. This has resulted in little intervention in immigration matters by the federal courts, causing the difference between immigration detention and criminal incarceration to diminish in both organization and appearance. Immigration detention, however, is a form of …

Gambling On The Blockchain: How The Unlawful Internet Gambling Enforcement Act Has Opened The Door For Offshore Crypto Casinos, Samuel H. Brown Vii

Vanderbilt Journal of Entertainment & Technology Law

Online cryptocurrency casinos have seen a dramatic rise in popularity over the past thirty years as the rate of ownership of cryptocurrencies has risen almost as quickly as the US monetary value of a single Bitcoin. Current US laws and regulations are outdated; the only piece of federal legislation that provides oversight in the area of virtual gambling originated in 2006, more than fifteen years before the publication of this Note. Previous scholarship suggests that a lack of federal action has resulted in a surge of criminal activity, such as money laundering and tax evasion, as well as significant missed …

How Culture Impacts Courtrooms: An Empirical Study Of Alienation And Detachment In The Cook County Court System, Maria Hawilo, Kat Albrecht, Meredith Martin Rountree, Thomas Geraghty

Journal of Criminal Law and Criminology

Courtrooms operate as unique microcosms—inhabited by courtroom personnel, legal actors, defendants, witnesses, family members, and community residents who necessarily interact with each other to conduct the day-to-day functions of justice. This Article argues that these interactions create a nuanced and salient courtroom culture that separates courtroom insiders from courtroom outsiders. The authors use the Cook County courts, specifically the George N. Leighton Courthouse at 2650 S California Avenue in Chicago, Illinois, to investigate courtroom culture and construct a thematic portrait of one of the largest criminal court systems in the United States. Using this newly constructed data source of rich …

Risk-Based Sentencing And The Principles Of Punishment, Christopher Lewis

Journal of Criminal Law and Criminology

Risk-based sentencing regimes use an offender’s statistical likelihood of returning to crime in the future to determine the amount of time he or she spends in prison. Many criminal justice reformers see this as a fair and efficient way to shrink the size of the incarcerated population, while minimizing sacrifices to public safety. But risk-based sentencing is indefensible even (and perhaps especially) by the lights of the theory that supposedly justifies it. Instead of trying to cut time in prison for those who are least likely to reoffend, officials should focus sentencing reform on the least advantaged who tend to …

Fetal Protection Laws And The "Personhood" Problem: Toward A Relational Theory Of Fetal Life And Reproductive Responsibility, Amanda Gvozden

Journal of Criminal Law and Criminology

Fetal Protection Laws (FPLs) are laws that define and provide punishments for any number of crimes, including homicide, committed “against a fetus.” Previous literature has suggested that FPLs need to be explicit about who the intended target of this legislation is. Specifically, comments concerned about the use of FPLs against pregnant women in relation to their own pregnancies suggested that states include language in their FPLs that make it clear that the law ought not be applied to women for harm to their own fetuses. Indeed, some states like California have taken measures to curtail the application of FPLs to …

Paying For A Clean Record, Amy F. Kimpel

Journal of Criminal Law and Criminology

Prosecutors and courts often charge a premium for the ability to avoid or erase a criminal conviction. Defendants with means, who tend to be predominantly White, can often pay for a clean record. But the indigent who are unable to pay, and are disproportionately Black and Brown, are saddled with the stigma of a criminal record. Diversion and expungement are two popular reforms that were promulgated as ways to reduce the scale of the criminal legal system and mitigate the impact of mass criminalization. Diversion allows a defendant to earn dismissal of a charge by satisfying conditions set by the …

Getting Out Of Traffic: Applying White Collar Investigative Tactics To Increase Detection Of Sex Trafficking Cases, Evan Binder

Journal of Criminal Law and Criminology

When federal authorities investigate sex trafficking, three realities are consistently present. First, most sex trafficking investigations begin in response to an individual affirmatively bringing evidence to investigators. Second, the elements required to prove a someone guilty of sex trafficking under federal sex trafficking laws incentivize prosecutors to rely on victim testimony and their cooperation throughout the life of the investigation. This can be, and often is, psychologically traumatizing for the victim. Third, most cases are viewed through a traditional tripartite structure, involving the trafficker, the victim(s), and the purchasers of the sex act (johns). However, recent high-profile sex trafficking indictments …