Law Commons^™

No Remedy For This Wrong? Analyzing The Appropriate Remedy For Violations Of California Penal Code § 834c, Jared W. Olen

Jared W. Olen

Article 36(1)(b) of the Vienna Convention on Consular Relations provides that a foreign national of a state-party has the right to have her consulate notified of her arrest upon detention. Many United Supreme Court and other federal courts have grappled with issues stemming from that right, including whether the treaty creates privately-enforceable rights. However, California was unique in that it enacted California Penal Code § 834c, which codifies as state law the right to consular notification.

While this codification precludes much discussion about privately-enforceable rights, the statute is, however, silent on what remedy should be applied if law enforcement violate …

Latif V. Obama: The Epistemology Of Intelligence Information And Legal Evidence, Richard O. Morgan

Richard O. Morgan

The process used by the Intelligence Community to collection information concedes a degree of truth-finding efficacy in order to serve other social values and policy considerations. As a result, the use of information derived from the “intelligence cycle” as evidence in judicial proceedings creates conceptual and procedural challenges. For example, the need to quickly and widely disseminate intelligence information across vast geographic spaces results in the Intelligence Community relying heavily on written communication. As a consequence, degrees of uncertainty or reliability may be distilled into written caveats within intelligence reports, with an attendant loss of subtlety. In contrast, judicial trials …

Employee And Inventor Witnesses In Patent Trials: The Blurry Line Between Expert And Lay Testimony, Alex Reese

Alex Reese

Parties in patent lawsuits that are going to trial face a crucial choice: who is the best witness to explain the often complex or scientific technology behind an invention or an accused product? Often, the parties will select an employee witness such as an engineer, scientist, or a named inventor of the patent-in-suit to offer this key testimony rather than a hired expert. Many litigants have found that there are benefits to choosing an employee witness who can testify based on first-hand experience with the technology in question rather than a hired expert, who must prepare an expert report and …

Burdens Of Proof And Qualified Immunity, Kenneth J. Duvall

Kenneth J Duvall

Despite the need to strike a proper balance between effective § 1983 suits to deter government misconduct and corresponding, robust defenses to deter frivolous suits, courts across the nation cannot agree on the fundamental questions of what the proper defenses to § 1983 actions are or how to allocate the burdens of proof in such litigation. This Article would remedy this situation, proposing an approach that offers both a single defense to § 1983 claims and a uniform allocation of the burdens of proof when that defense is raised. In Part I, this Article briefly explains the burdens of proof, …

The Contradictory Stance On Jury Nullification, Kenneth J. Duvall

Kenneth J Duvall

Arguments about jury nullification in both courts and academia proceed under the assumption that either proponents and opponents of nullification could decisively carry the day. But as current Supreme Court law stands, nullification is at once prohibited and protected. This Article shines a light on the uneasy, confusing compromise in the doctrine, and finds that the two ways out of the dilemma—fully embracing nullification, or rejecting it—are equally taboo to the American legal mind. In Part I, this Article briefly explains the contested history of nullification. In Part II, it examines modern courts’ intermittent recognition of nullification. Part III then …

The Troubling Role Of Federal Registration In Proving Intellectual Property Crimes, Susan M. Richey

Susan M Richey

No abstract provided.

The Troubling Role Of Federal Registration In Proving Intellectual Property Crimes, Susan M. Richey

Susan M Richey

No abstract provided.

Legal Applications Of Modern Finance, Matthew E. Cavanaugh Mba Cpa Esq.

Matthew E. Cavanaugh MBA CPA Esq.

While scholars and practitioners have applied economics to law successfully for decades, there has been almost no similar application of modern finance. Courts have used the central concept of classical finance, time value of money, for many years, but their use is still unsophisticated.

This article details two ways to apply modern finance to law. This article first describes a method of improving courts’ time value of money calculations, by using a systematically complete four factor analysis to determine the appropriate discount rate. This article then describes a method of calculating future damages that uses market price of risk, based …

A Turbulent Adolescence Ahead: The Icc’S Insistence On Disclosure In The Lubanga Trial, Christodoulos Kaoutzanis

Christodoulos Kaoutzanis

The completion of the first trial at the International Criminal Court (‘ICC’), against Thomas Lubanga Dyilo, was a great milestone for international criminal justice. Despite this obvious accomplishment, this paper argues that the Trial Chamber’s solutions to two evidentiary problems will restrict the ICC’s potential to effectively hear future cases. First, this paper presents the details behind the two evidentiary problems of disclosure, that of exculpatory confidential information and that of the identities of the Prosecutor’s intermediaries. This analysis is undertaken in an exhaustive manner, in order to highlight the challenges that the Prosecutor faced and the manner in which …

Like A Glass Slipper On Step-Sister, How The One-Ring Rules Them All At Trial, Cathren Page

Cathren Page

The literary concept of an endowed object can weave a thread of narrative continuity throughout a trial and resonates in the mind of the judge or juror. In literature, an endowed object is a material object that reverberates with symbolic significance throughout the story. The object can develop the theme, character, and emotions. Examples include Cinderella’s glass slipper, the one-ring, the handkerchief in Othello, and the mocking jay pin from The Hunger Games. Endowed objects have been persuasive symbols in famous trials as well. Endowed objects include the glove in the O.J. Simpson murder trial and John Wilkes Booth’s boot …

Admissibility Of Dna Evidence: Italy Under Attack, Adina Rosenfeld

Adina Rosenfeld

The purpose of this paper is to compare the differences and similarities in the evidentiary rules for DNA in Italy and in the United States in the light of their two different legal traditions. This note will compare American and Italian rules of evidence and procedure for the admissibility of DNA in criminal trials and analyze the most relevant differences between the two systems. Based on this comparison, the note will argue that Amanda Knox would not have been convicted of murdering her roommate in American lower court because the DNA evidence would not have been admissible. In Italy, Knox …

The Psychotherapist-Patient Privilege As An “Occasional Instrument Of Injustice”: An Argument For A Criminal Threat Exception, Joi T. Montiel

Joi T Montiel

The Supreme Court in Jaffee v. Redmond announced a federal testimonial privilege protecting communications between a psychotherapist and his patient in federal court. However, in footnote 19 of the opinion, the Court noted that there may be times where the privilege must “give way,” such as when “disclosure” of the statements made in therapy is necessary to protect an intended victim of the patient. Nonetheless, commentators have argued against an exception to the privilege when the statements made to the therapist indicate that a target is in danger, and some courts have rejected such a “dangerous patient exception” to the …

Taking Confrontation Seriously: Does Crawford Mean That Confessions Must Be Cross-Examined?, Mark Summers

Mark Summers

This article focuses on the applicability of the Supreme Court's decision in Crawford v. Washington to one subcategory of party admissions – defendants’ confessions “taken by police officers in the course of interrogations.” Such statements fall within Crawford’s core class of testimonial statements, which must be subjected to cross-examination either at the time they are made or at trial in order to satisfy the Confrontation Clause. In some post-Crawford cases, defendants have argued that the failure to comply with Crawford should bar the prosecution from using their confessions. The lower courts have uniformly held that Crawford does not apply to …

The Right To Remain Silent: Addressing A Government Attorney Client Privilege In The Context Of A Grand Jury Subpoena, Matan Shmuel

Matan Shmuel

This article deals with the circuit split over whether a government agency can use government attorneys to conceal what would otherwise become public information. Often, a government agency representative might discuss with nearby agency counsel personal legal information outside the scope of their employment. Courts are split over whether this is privileged or not. My article proposes a solution to the split by implementing a factor test which takes into account the government interest in confidentiality, the public need for disclosure, and the ability of the grand jury to find the information elsewhere.

A Prediction Is Worth Four Thousand Words: The Third Circuit Boldly Holds That The Supreme Court Of Pennsylvania Will Apply The Restatement (Third) In Covell V. Bell Sports, Inc., Craig Lawrence Bazarsky

Craig Bazarsky

The Third Circuit has struggled with whether to apply the Restatement (Second) of Torts or Restatement (Third) when sitting in diversity jurisdiction in Pennsylvania. This began in Berrier v. Simplicity Manufacturing, Inc., when the Third Circuit predicted that the Supreme Court of Pennsylvania would reject the Restatement (Second) and adopt the Restatement (Third). The Supreme Court of Pennsylvania was set to decide the issue in Bugosh v. I.U. North America, Inc., after granting allocatur in 2008; however, they dismissed the appeal as improvidently granted in 2009, and neither adopted the Restatement (Third) nor reaffirmed the Restatement (Second). The Third Circuit, …

A Witness Against Himself: Use And Derivative Use Immunity And Prosecutorial Discretion, John B. Plimpton Mr.

JOHN B. PLIMPTON

In Kastigar v. United States, the Supreme Court held that in order to compel testimony containing self-incriminating information from a witness (1) who is not a criminal defendant and (2) has invoked the privilege against self-incrimination, the government must grant the witness immunity from “use and derivative use” of the testimony in a subsequent criminal proceeding against him. The federal circuits are split on the scope of protection afforded by this type of immunity. Some circuits construe use and derivative use immunity to prohibit any and all uses the government may make of his immunized testimony. Other circuits maintain that …

Evidence-Based Prosecution & Strangulation-Specific Training: Obtaining Justice For Victims Of Strangulation In Domestic Violence, Brigitte P. Volochinsky

Brigitte P Volochinsky

Strangulation accounts for 10-percent of violent deaths in the United States, with six female victims to every male victim. A common form of abuse in domestic violence, strangulation may result in many harmful health effects and it often indicates either an ongoing pattern of abuse or it foreshadows escalating violence. Yet, strangulation is often minimized by the criminal justice system, including law enforcement officials, emergency room medical personnel, and prosecutors, who equate strangulation with a slap on the face. The phenomenon of minimizing a violent and life-threatening act occurs for two reasons; first, and most importantly, victims of strangulation often …

To Testify Or Not To Testify: The Dilemma Facing Children With Multiple Cases Before The Same Judge In Delinquency Court., Katherine I. Puzone

Katherine I. Puzone

In Juvenile Court, children often have more than one case pending, especially children living in group foster homes and those at alternative schools. In many jurisdictions, all of a child’s cases are assigned to the same judge. If the child is arrested at a later time, the new case is also assigned to the same judge. That means that if a child exercises her right to go to trial in each case, the same judge will hear every case. If they are set for trial on the same day, and they often are, the judge will hear each case in …