Law Commons^™

Property Offenses, Peter G. Ballou

Maine Law Review

The Criminal Code has sought to accomplish three goals in the area of property crimes: consolidation, simplicity, and consistency in the treatment of similar offenses. The consolidation of a variety of previously separate crimes into the single crime of theft may be the most drastic change from prior law in the entire Code. Almost all of the ways in which a person may be deprived of his property or services to the gain of another are now included in this single crime. The consolidation under the heading of burglary of a variety of crimes involving entry of buildings in combination …

Gambling, Michael D. Seitzinger

Maine Law Review

Simplification of the laws which define criminal offenses and decriminalization of behavior no longer warranting the enforcement mechanisms of the criminal law were two principal objectives of the Criminal Code Revision Commission. Chapter 39 of the Criminal Code contains the revision of Maine's anti-gambling statutes and illustrates as well as any Code chapter the application of these objectives to the formulation of substantive criminal offenses. The substantive provisions of the prior law failed, for the most part, to define key terms. Without such definitions, the provisions of Title 17 which established the elements of an offense were often prolix and …

Homicide, Peter J. Rubin

Maine Law Review

The homicide provisions of the Maine Criminal Code break down culpable killings into six degrees. Until the line of cases beginning with State v. Wilbur, the law of Maine had always seemed to separate the various unlawful killings into separate crimes rather than degrees of the same crime. Commencing with State v. Rollins and State v. Lafferty, the Maine Supreme Judicial Court announced that there was and always had been only one crime of "felonious homicide." Murder and manslaughter were merely punishment categories or degrees of "felonious homicide." The new homicide provisions are similar to the pre-Code court interpretation in …

Prefatory Note, Robert Checkoway Editor-In-Chief

Maine Law Review

In its recent simplification and clarification of the criminal law, the Maine Criminal Law Revision Commission was also obliged to reconsider the proper breadth of the criminal sanction itself. The results of these parallel efforts are apparent throughout the Criminal Code. Those activities ordinarily considered criminal have been more precisely and comprehensively regulated, while the limits of the law controlling activities less socially damaging have been readjusted in the process of exact delineation. The Articles in this Special Issue offer an explanation and critical evaluation of the Commission's efforts.

Introduction, Gerald F. Petruccelli

Maine Law Review

Others, most notably the late Professor Herbert Packer, have written extensively in recent years concerning the limits of the criminal sanction, and it seems trite to observe that the subject matter is hardly novel and has been the subject of literary and philosophical discourse for centuries. The purpose of this brief presentation, therefore, is not to review that voluminous literature or to make expansive claims for the new Maine Criminal Code. Rather, it is to show that the new Maine Code was written with an awareness of the basic premises both of classical theories of limited public intrusion into private …

The Burden Of Proof And The Insanity Defense After Mullaney V. Wilbur, Maine Law Review

Maine Law Review

In 1970, the Supreme Court of the United States in the case of In re Winship specified an evidentiary standard of proof for criminal prosecutions as a requirement of the due process clause of the 14th amendment: "Lest there remain any doubt about the constitutional stature of the reasonable doubt-standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Five years later, in Mullaney v. Wilbur, the Court extended Winship to invalidate Maine's statutory scheme of …

Constitutional And Legislative Issues Raised By The Entrapment Defense In Maine, Maine Law Review

Maine Law Review

In recent years the increase in undercover investigative activity by police agents has generated considerable interest in the defense of entrapment. The entrapment defense to a criminal prosecution has been recognized either judicially or legislatively in most jurisdictions in the United States. The proper formulation of the defense, however, has given rise to conflicting opinions involving various evidentiary and constitutional considerations. In raising the defense of entrapment, a defendant does not deny that he committed the acts constituting the crime, but rather asserts that, on grounds of public policy, he should not be convicted. In Maine, the defense of entrapment …

"Jurisdictional" Indictments, Informations And Complaints: An Unnecessary Doctrine, Peter G. Ballou

Maine Law Review

In the majority of jurisdictions in the United States, including the federal courts and Maine, a sufficient indictment, information or complaint is deemed an absolute prerequisite to a valid conviction. This right to a sufficient charging instrument is not subject to waiver and may be asserted at any time, even though not raised before or during trial or on direct appeal from a conviction. This characteristic of nonwaivability, probably unique among the rights belonging to a criminal defendant, has led some courts, including the Maine Supreme Judicial Court, to characterize the requirement of a sufficient indictment as "jurisdictional." When an …

Mental Abnormality In The Maine Criminal Code: Section 58 (1-A), Susan E. Peck

Maine Law Review

The law surrounding the insanity defense has always been complex and problematic. Since the promulgation of the M'Naghten test in 1843, courts and legislators have attempted to articulate a clear and easily understood definition of insanity. Legal scholars have created an overwhelming volume of literature on such important aspects of the defense as the role of psychiatrists in a jury trial, the appropriateness of the diminished capacity defense, and the constitutionality of imposing the burden of proving insanity on the defendant. Even the necessity of retaining the defense has been questioned. The Maine Supreme Judicial Court has recently confronted a …

How Justice Holmes Turned Conspirators Into Partners, Daniel Harris

William & Mary Business Law Review

A fundamental precept of the law of conspiracy is that all members of a conspiracy are partners in crime. This precept is the rationale for many doctrines of conspiracy law, including the controversial judge-made rule that all members of a conspiracy are vicariously guilty of substantive crimes foreseeably committed by one member of the conspiracy even if the other members did not commit the substantive offense, intend the offense, or aid or abet its commission. Why does the law impose partnership status and vicarious guilt on lower-level members of a conspiracy who have no ownership stake in the business and …

From Hanging To Nitrogen Hypoxia: The Evolution Of Execution And The Case For American Abolition, Anna Kuhlman

The International Law Review Association Student Forum

The death penalty has been a dark fixture in societal punishment for most of human history. It has allowed for grisly, violent executions of people found guilty of misconduct relative to the culture they live in. “The first established death penalty laws date as far back as the Eighteenth Century BCE in the Code of King Hammurabi of Babylon, which codified the death penalty for 25 different crimes.” The first death sentence on record was a member of nobility in 16th-century BCE Egypt, where the wrongdoer was accused of magic and ordered to commit suicide. In the seventh century B.C.E., …

U.S. Territories And The Criminal Law Curriculum, Emmanuel Hiram Arnaud

Faculty Scholarship

In this Article, I make a case for why issues concerning the territories should be taught in law school courses and suggest a few ways in which federal criminal adjudication in the territories can and should be incorporated into the criminal law and procedure curriculum.¹⁰ As I advance elsewhere,¹¹ criminal adjudication in the territories functions differently than in the mainland United States.¹² Using the framework of what I call the “territorial criminal legal system,” I have begun mapping the contours of the unique prosecutorial ecosystem produced by the territorial condition.¹³ Chief among the characteristics is the …

State V. Grant: Is Intent An Essential Element Of Criminal Attempt In Maine?, Bethanne Lyons Poliquin

Maine Law Review

Criminal attempt is a conceptually difficult area of the criminal law. Efforts to develop a judicial and statutory framework for the imposition of criminal attempt liability have resulted in analytical difficulties from which sound policy has not emerged. The Maine Supreme Judicial Court has recently encountered this problem in State v. Grant. Liability for criminal attempt has traditionally been limited to those situations in which the actor is shown to have had the specific intent to engage in conduct that constituted a substantial step toward the commission of the substantive crime. Because of this requirement, courts have reasoned that criminal …

Presumptions Against Criminal Defendants, Affirmative Defenses, And A Substantive Due Process Interpretation Of County Court Of Ulster V. Allen, John C. Sheldon

Maine Law Review

In County Court of Ulster County v. Allen, the Supreme Court stated: "inferences and presumptions are a staple of our adversary system of factfinding." Because Allen concerned the constitutionality of the use against criminal defendants of such deductive devices as statutory inferences and presumptions, it appeared that the decision would ultimately favor their unrestricted use in criminal cases by the prosecution. Further, that expectation was buttressed by the ruling in Patterson v. New York, in which the Court awarded constitutional sanction to state use of affirmative defenses against criminal defendants. These facts suggested that the Court would refrain from imposing …

Accidental Brady Violations, Adam M. Gershowitz

Texas A&M Law Review

Prosecutors are often seen as the villains of the criminal justice system. And the most villainous thing a prosecutor can do is to commit an intentional Brady violation by withholding favorable and material evidence from the defense. Not surprisingly, there is a wide literature criticizing prosecutors for flagrant misconduct.

But not all Brady violations are intentional. Prosecutors sometimes—perhaps often—commit accidental Brady violations by inadvertently failing to recognize favorable evidence. Because many prosecutors are inexperienced, overworked, and under-trained, they do not recognize exculpatory or impeachment evidence when it is in their files. Additionally, prosecutors also fail to disclose evidence that is …

Kennedy V. Louisiana And The Future Of The Eighth Amendment, Alexandra L. Klein

Pepperdine Law Review

In 2023, Florida passed a law permitting the imposition of the death penalty for the rape of a child under twelve. Tennessee enacted a similar law in 2024. These laws conflict with Kennedy v. Louisiana, a 2008 decision in which the Supreme Court held that imposing the death penalty for the rape of a child violated the Eighth Amendment’s Cruel and Unusual Punishments Clause because it was inconsistent with the evolving standards of decency. Legislators in Florida and Tennessee have expressed their hope that the Supreme Court will overrule Kennedy v. Louisiana. These laws, which resemble state attempts to undo …

Properly Partitioning Prejudice: Analyzing Mixed Brady And Napue Claims, Patrick Scariano

Fordham Law Review

Due process affords criminal defendants the right to receive evidence possessed by the government that would aid in their defense. This right was codified in Brady v. Maryland. Brady’s lesser-known ancestor is Napue v. Illinois, which gave defendants the right to a new trial if the government knowingly offered perjured testimony in their original trial. The U.S. Supreme Court has held that these rights are critical to support verdicts worthy of confidence necessary to ensure due process.

Unfortunately, defendants victimized by misconduct are often affected by multiple violations of their rights. Courts have developed ways to examine …

The State Of The Medical Cannabis Industry And Enforcement Against Illegal Cannabis Shops, Chaz Brooks

Legislative Testimony & Comments

My name is Professor Chaz Brooks, and I am joined by several of my students who have assisted on this project, Khumar Gasimzada, Christian Nunez, and Olivia Woodmansee. Professor Priya Baskaran and I co-lead the Entrepreneurship Law Clinic at American University Washington College of Law, where we provide legal support to small businesses and entrepreneurs in Washington, D.C. (the “District” or “D.C.”). Over the past year, we have worked closely with Sean and Lashonia Thompson-El of DC Native Botanicals who received a Conditional Social Equity License for a cultivation center in October 2023. Today, we testify not only on their …

Brief Of Law Professors As Amici Curiae In Support Of Respondent, Ira P. Robbins

Amicus Briefs & Court Filings

INTRODUCTION AND SUMMARY OF ARGUMENT: "The right to trial by jury is 'of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right' has always been and 'should be scrutinized with the utmost care." SEC v. Jarkesy, 144 S. Ct. 2117, 2128 (2024) (quoting Dimick v. Schiedt, 293 U.S. 474, 486 (1935)). The Seventh Amendment reflects and enshrines that tradition, providing that in "[s]uits at common law ... the right of trial by jury shall be preserved." U.S. Const. amend. VII (quoting Dimick; see also City of …

Criminal Caselaw Notebook 2025, Hon. Ronald Kessler

Washington State Books

This publication from King County Superior Court judge Ronald Kessler is updated semi-annually and is distributed free of charge. It includes citations to Washington state case law on a variety of criminal law topics.

Not Demented Enough: Dementia And Competency To Stand Trial, Rashmi Goel

Sturm College of Law: Faculty Scholarship

Although competency to stand trial holds a vaunted position among the due-process rights in our criminal justice system, its current application is a mere shadow of the original promise articulated in Dusky v. United States. The competency-to-stand-trial requirement is supposed to protect the mentally ill and the mentally impaired from criminal trial, but the requirement has been continually chipped away, both doctrinally and practically. As a result, it no longer protects the most vulnerable. People with dementia, most often elderly with cognitive impairments, face a perilous ordeal when caught in the criminal justice system. And, as dementia rates increase, more …

Involuntary: How A Lack Of Analysis Of Age Under The Fifth Amendment Highlights The Intersectionality Of Age And Race, Julia De La Fuente, Tonelli Anderson

Washington Law Review Online

In the wake of Miller v. Alabama and its progeny, there has been a wider acceptance that juvenile’s need more protections in our judicial system. This is a result of a growing body of research stating that young people’s brains do not fully develop until the age of twenty-five. States across the country are trying to implement this science to protect juvenile rights, especially when it comes to sentencing. However, it has yet to be incorporated in other respects, such as juveniles relinquishing their Fifth Amendment rights. Little attention has been paid to whether a juvenile’s statement in police custody …

Diplomatic Practices: Activating The Crime Of Aggression, Noah Weisbord

American University International Law Review

At midnight on Friday, December 15, 2017, a century of multilateral negotiations over the definition and jurisdictional reach of the crime of aggression—leadership responsibility for aggressive war—was on the brink of collapse. Almost every controversial drafting issue had been negotiated and resolved, and International Criminal Court (ICC or the Court) States Parties were gathered at the United Nations (U.N.) in New York to activate ICC jurisdiction over the “supreme international crime.” According to aggression scholar Annegret Hartig, “activation was expected to be comparable to a mere turning on of lights.” Just two states, the U.K. and France, were blocking the …

Reevaluating Felon-In-Possession Laws After Bruen And The War On Drugs, Laura Ginsberg Abelson

Faculty Journal Articles and Book Chapters

The legal landscape surrounding firearm possession is evolving rapidly. In 2022, the Supreme Court accelerated its expansion of the individual right to bear arms under the Second Amendment in New York Rifle & Pistol Ass’n v. Bruen. Since Bruen, courts around the country have struck down nearly all types of firearm regulations, with a notable exception: felon-in-possession laws. This Article examines the implications of a legal landscape where those who have prior felony convictions, and especially prior drug convictions, are punished harshly for the same behavior—possession of a firearm—that is constitutionally protected for nearly everyone else. I argue …

Poison! An Africana Legal Studies Investigation Into Enslaved Africans And Their Deadly Roots, Angi Porter

Scholarly Articles in Law Reviews & Journals

This article is a murder investigation.

And a strange one, as the victims might be the suspects, and the suspects might be the victims. Or, even stranger, who we are calling the victims might be the enforcers of an entirely different justice system we did not initially see.

This is a cold case: we are investigating African people enslaved in the Province of Maryland during the eighteenth century. It is really a collection of cases—all cases of poisoning. These enslaved Africans were poisoning their enslavers. The incidents are described in legal records and newspapers. But what do these poisonings really …

Is It Possible To Draft A Universal Criminal Code?, Paul H. Robinson

American University International Law Review

The world contains hundreds of distinct communities with their own traditions and values. One might assume that, despite the best efforts of international organizations, it would be impossible to draft a criminal code that could operate effectively for all countries. Is that the case? If one tried to construct a universal criminal code, what sorts of challenges and limitations with the effort face?

Blood Cobalt: Unmasking And Charging Corporations For Involvement In International Law Violations In The Democratic Republic Of Congo, Bolu Jegede

American University International Law Review

Joint Criminal Enterprise (JCE) is a legal doctrine developed by the International Criminal Tribunal for the Former Yugoslavia (ICTY) to hold participants in a criminal enterprise equally liable for all results of the group’s criminal actions, even if the individuals were not directly involved in committing the crimes. While traditionally used to prosecute individual criminal actions, JCE provides a legal pathway to hold corporations criminally liable for their actions that further international law violations. Although corporations currently do not have specific, listed responsibilities under international law, they are required to respect human rights and ensure their activities do not perpetrate …

The Dangers Of Denying Prosecutorial Independence: Wrongful Convictions, Official Misconduct, And Public Corruption, Meagan R. Hurley

Articles

In recent years, desires to limit prosecutorial discretion have become the focus of a national dialogue on the authority of the elected officials, allegations of their misconduct, and the need for stronger accountability measures. Legislatures across the country have considered a slew of bills aimed at diminishing prosecutorial power by prohibiting “progressive” office policies, creating oversight commissions, and promulgating simplified processes to recall or remove prosecutors entirely. In various jurisdictions, those proposals are now coming to fruition. While heightened scrutiny for some of the legal system’s most powerful leaders may seem attractive, an analysis of national trends aimed at curtailing …

Rescuing State Punishment Clauses From The Deferential Doctrine, William W. Berry Iii

Georgia Law Review

A number of state appellate courts read any sentencing decisions by lower courts that are “within the statutory sentencing limits” as constitutional or presumptively constitutional under both the Eighth Amendment and the punishment clause in their state constitutions. This “deferential doctrine” ignores both the individual rights of criminal defendants and the role of state courts in placing some constitutional limit on the sentencing schemes adopted by state legislatures.

In an age of mass incarceration and excessive spending on punishment, this blind deference state courts show state legislatures should end. This article demonstrates how and why state courts should use the …

Using Big Data To Dismantle Systemic Barriers: How Tracking Official Misconduct Can Foster Justice And Increase Accountability In The Criminal Legal System, Meagan R. Hurley

Articles

The U.S. criminal legal system is a vast and complex machine, long subject to public and scholarly scrutiny. The U.S. incarcerates more people than any other nation, holding an astonishing 1.9 million individuals behind bars. Of them, approximately eighty percent are indigent, and over sixty percent are racial minorities, despite these groups comprising a relatively small portion of the overall population. In this expansive system, which disproportionately targets minorities and the poor, it is unsurprising that justice is not always served: Human error and bias are nearly guaranteed to occur at some juncture. Experts estimate that about four percent of …