Criminal Law Commons^™

Justice Edward Godfrey And The Role Of The Trial Judge In The Criminal Process, Melvyn H. Zarr University Of Maine School Of Law

Maine Law Review

At the end of 1994 Dean Edward S. Godfrey III stepped down from his teaching position as Professor Emeritus of the University of Maine School of Law. In honor of his service to Maine’s only law school, to the Maine Supreme Judicial Court, to the Maine Bar, and to the people of the State of Maine, the Board and Staff dedicate Volume 47 of the Maine Law Review to Dean Edward Godfrey. Reviews by Maine Law School faculty members of Dean Godfrey’s Law Court decisions in several areas of the law follow.

Department Of Corrections V. Superior Court: Hear No Evil, Aaron T. Morel

Maine Law Review

On December 9, 1991, professional ethical and moral considerations prompted heated litigation in Department of Corrections v. Superior Court. Justice Donald G. Alexander of Maine's Superior Court displayed considerable foresight while sentencing two borderline mentally retarded child sex offenders. Although both defendants had committed repugnant crimes, Justice Alexander anticipated that they would be subjected to impermissible abuse if incarcerated in the Department of Corrections. He believed that preventive measures were necessary to ensure the safety of the defendants being sentenced and to avoid the potential that conditions of their incarceration would amount to cruel and unusual punishment. Justice Alexander subsequently …

Basic Trial Advocacy, Michael W. Mullane

Maine Law Review

Mary Crates taught me to “begin as you mean to go on.” Peter Murray's book is a good place to begin for those embarking on a life of trial advocacy. For those of us whose beginnings are distant and often painful memories, it is an excellent reminder of where we meant to go. Trial advocacy is an infinitely complex task. This simple fact is both its joy and curse. Teaching trial advocacy is equally difficult. There is no “never” and no “always.” There is a host of commonly accepted maxims, many of which are contradictory on their face and all …

A Measure Of Our Justice System: A Look At Maine's Indigent Criminal Defense Delivery System, Ronald W. Schneider Jr.

Maine Law Review

This Comment will examine briefly the history of the right to counsel and the accompanying right to the effective assistance of counsel in this country. At the time the Sixth Amendment was included in the Bill of Rights, the United States rejected the English practice of denying the right to counsel to those accused of felonies while granting the right to those charged with misdemeanors. People in the United States have enjoyed the right to counsel in all criminal cases, felonies and misdemeanors, since 1791. Yet in a very real and dangerous sense, the courts have reversed the course of …

Race And The Federal Criminal Justice System: A Look At The Issue Of Selective Prosecution, Drew S. Days Iii

Maine Law Review

The Fourth Annual Frank M. Coffin Lecture on Law and Public Service was held on September 13, 1995. Following Dean Donald Zillman's opening remarks, The Honorable Drew S. Days III, Solicitor General of the United States, presented “Race and the Federal Criminal Justice System: A Look at the Issue of Selective Prosecution.” The Board and Staff of Volume 48 are honored to publish his remarks in their entirety.

Public Requitals: Corrective, Retributive, And Distributive Justice, Bailey Kuklin

Cleveland State Law Review

The currently predominant view of public requitals for criminal behavior draws on the deontic guidance provided rather sketchily by Kant’s writings. He offers a broad, formal framework for the mandate to respect others and punish those who criminally violate the mandate. As ethical beings, people have the duty to avoid invading the "autonomy space" of others that is delineated by maxims designed to reasonably and fairly balance everyone’s equal liberty and security interests. Once society settles on a complete and coherent set of maxims that determines the reach of one’s autonomy space, it must then turn to maxims that address …

The State Of American Juvenile Justice, Merril Sobie

Elisabeth Haub School of Law Faculty Publications

This article will summarize the major twenty-first century state legislative and case law developments. It will also briefly note the expansion of state and local initiatives limiting the prosecution of youthful offenders, such as diversion and restorative justice programs.

The state of American juvenile justice has improved significantly in the past several years. However, the reforms are best viewed as a work in progress. Much has been accomplished, but much remains to be accomplished. Crucially, after a generation of “tough on kids” measures, we are on the road toward a true “justice” system for children.

The Heat Of Passion And Blameworthy Reasons To Be Angry, Jonathan Witmer-Rich

Law Faculty Articles and Essays

This article seeks to resolve a longstanding conceptual puzzle plaguing the "heat of passion" doctrine--how courts should determine which features, beliefs, or characteristics of a defendant are properly relevant to assessing whether the defendant was sufficiently provoked, and which of those features should be disregarded. This article argues that provocation is not adequate if the reason the defendant became extremely angry is due to some blameworthy belief or attribute of the defendant. A belief is blameworthy if it contradicts the fundamental values of the political community. The blameworthiness principle distinguishes those aspects of the defendant that cannot form a basis …

The Prison To Homelessness Pipeline: Criminal Record Checks, Race, And Disparate Impact, Valerie Schneider

Indiana Law Journal

Study after study has shown that securing housing upon release from prison is critical to reducing the likelihood of recidivism,1 yet those with criminal records— a population that disproportionately consists of racial minorities—are routinely denied access to housing, even if their offense was minor and was shown to have no bearing on whether the applicant would be likely to be a successful renter. In April of 2016, the Office of General Counsel for the United States Department of Housing and Urban Development (HUD) issued much anticipated guidance dealing directly with the racially disparate impact of barring those with criminal records …

Criminology (Gsu, Clayton), Scott Jacques, Andrea Allen

Criminal Justice and Law Grants Collections

This Grants Collection for Criminology was created under a Round Nine ALG Textbook Transformation Grant.

Affordable Learning Georgia Grants Collections are intended to provide faculty with the frameworks to quickly implement or revise the same materials as a Textbook Transformation Grants team, along with the aims and lessons learned from project teams during the implementation process.

Documents are in .pdf format, with a separate .docx (Word) version available for download. Each collection contains the following materials:

• Linked Syllabus
• Initial Proposal
• Final Report

Conflicting Approaches To Addressing Ex-Offender Unemployment: The Work Opportunity Tax Credit And Ban The Box, Katherine English

Indiana Law Journal

Each year, roughly 700,000 prisoners are released from their six-by-eight-foot cells and back into society. Sadly, though, many of these ex-prisoners are not truly free. Upon returning to society, they often encounter several challenges that prevent them from resuming a normal, reintegrated lifestyle. For many, the difficulties associated with reentry prove to be too much, and within a short three years of their release, two-thirds of ex-offenders are rearrested, reconvicted, and thrown back into the familiar six-by-eight-foot cell. Recidivism might appear to be entirely the exoffenders’ fault, but ex-offenders are not solely responsible for these recidivism rates or the solution …

Pro Se Appellants: Opportunities For Law Libraries, Liz Reppe

Dickinson Law Review (2017-Present)

This article is part of the 2018 Dickinson Law Review Symposium entitled “Access to Justice: Innovations and Challenges in Providing Assistance to Pro Se Litigants.” The author is the state law librarian for Minnesota who reports to the Minnesota Supreme Court. This article surveys various resources that Minnesota provides to unrepresented clients, including the website resources found here: https://perma.cc/R2DP-K9YB. The bulk of the article, however, focuses on Minnesota’s innovative in-person “Appeals Self-Help Clinics.” See https://perma.cc/Y2VN-H2L3.

The article’s discussion of Minnesota’s Appeals Self-Help Clinics begins by highlighting some of the factors that provided the impetus for the development …

Smoke But No Fire: When Innocent People Are Wrongly Convicted Of Crimes That Never Happened, Jessica S. Henry

Department of Justice Studies Faculty Scholarship and Creative Works

Nearly one-third of exonerations involve the wrongful conviction of an innocent person for a crime that never actually happened, such as when the police plant drugs on an innocent person, a scorned lover invents a false accusation, or an expert mislabels a suicide as a murder. Despite the frequency with which no-crime convictions take place, little scholarship has been devoted to the subject. This Article seeks to fill that gap in the literature by exploring no-crime wrongful convictions as a discrete and unique phenomenon within the wrongful convictions universe. This Article considers three main factors that contribute to no-crime wrongful …

Techno-Policing, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Why De Minimis Should Not Be A Defence, Stephen Coughlan

Articles, Book Chapters, & Popular Press

De minimis non curat lex—the idea that the law does not concern itself with trifles—is originally a private law maxim whose applicability in criminal law is uncertain. The author argues that de minimis should not exist as a criminal defence. This article distinguishes the use of de minimis as an (accepted) interpretative principle in criminal law from its application as a defence. In doing so, the author critiques the potential rationales for de minimis offered by Arbour J in Canadian Foundation for Children, Youth and the Law v Canada (Attorney General). Instead, the author draws a parallel between de minimis …

Reassessing Prosecutorial Power Through The Lens Of Mass Incarceration, Jeffrey Bellin

Faculty Publications

No abstract provided.

Rape In Context: Lessons For The United States From The International Criminal Court, Caroline Davidson

Cardozo Law Review

The law of rape is getting a rewrite. Domestically and internationally, major efforts are underway to reform rape laws that have failed to live up to their promises of seeking justice for victims and deterring future sexual violence. The cutting edge of international criminal law on rape eschews inquiries into consent and instead embraces an examination of coercion or a coercive environment. By contrast, in the United States, rape reform discussions typically center on consent. The American Law Institute's proposed overhaul of the Model Penal Code's provision on sexual assault carves out a middle ground and introduces, in addition to …

Admissibility Of First Time In-Court Eyewitness Identifications: An Argument For Additional Due Process Protections In New York, Dakota Kann

Cardozo Law Review

No abstract provided.

Dassey V. Dittmann: Brief Amicus Curiae Of Professors Of Criminal Law, Criminal Procedure, And Constitutional Law In Support Of Petitioner, Samuel R. Gross, Yale Kamisar

Appellate Briefs

Amici curiae are academics who focus on criminal procedure and Fifth Amendment and Fourteenth Amendment law. (A list of the amici curiae is attached as Appendix A.) Their principal interest in this case is proper application of clear Supreme Court precedent in assessing the voluntariness of the confession given by the juvenile suspect in this case. Amici file this brief out of concern that some lower courts, including the court below, are straying from this Court's clear mandates in applying the totality-of-the-circumstances test to confessions given by juveniles with intellectual impairments. Amici write to provide a historical overview of this …

Dassey V. Dittmann: Brief Amici Curiae Of Professors Of Criminal Law, Criminal Procedure, And Constitutional Law In Support Of Petitioner, Samuel Gross, Yale Kamisar, Eve Brensike Primus

Appellate Briefs

Amici curiae are academics who focus on criminal procedure and Fifth Amendment and Fourteenth Amendment law. (A list of the amici curiae is attached as Appendix A.) Their principal interest in this case is proper application of clear Supreme Court precedent in assessing the voluntariness of the confession given by the juvenile suspect in this case. Amici file this brief out of concern that some lower courts, including the court below, are straying from this Court's clear mandates in applying the totality- of-the-circumstances test to confessions given by juveniles with intellectual impairments. Amici write to provide a historical overview of …

Testimonial Statements, Reliability, And The Sole Or Decisive Evidence Rule: A Comparative Look At The Right Of Confrontation In The United States, Canada, And Europe, Deborah Paruch

Catholic University Law Review

Criminal trials in the United States are meant to ascertain the truth. But other societal values, such as fairness to the parties and public confidence in the integrity of the process, are at stake as well. Among the cornerstone rights to protect a defendant’s right to a fair trial is the right to confrontation. The right to confrontation enables a criminal defendant to exclude hearsay evidence from a trial when the defendant did not have an opportunity to cross-examine the witness. This right has undergone substantial changes and revisions over the last decade, both in the United States and abroad. …

Cuyahoga County Bail Task Force: Report And Recommendations, Jonathan Witmer-Rich, Jay Milano, Carmen Naso, Mary Jane Trapp

Law Faculty Reports and Comments

Introduction:

All Cuyahoga County courts should transition from a bail system based on bond schedules, which vary widely from one court to the next, to a centralized, consistent, and comprehensive system of pretrial services initiated immediately after arrest. For most minor offenses, the presumption should be release on personal recognizance. Money bail should not be used to simply detain defendants. Rather than relying on bond schedules, courts should assess each defendant’s risk of non-appearance and danger to the community using a uniform risk assessment tool. If money bail is considered, courts should evaluate each defendant’s risk of non-appearance and ability …

Whren V. United States: An Abrupt End To The Debate Over Pretextual Stops, Brian J. O'Donnell

Maine Law Review

In Whren v. United States, the United States Supreme Court held that a traffic stop is reasonable under the Fourth Amendment if a police officer has probable cause to believe that a traffic violation has occurred, even if the stop is a pretext for the investigation of a more serious offense. The Court affirmed the convictions of Michael A. Whren and James L. Brown, who had been arrested on federal drug charges after Washington, D.C., police stopped Brown for minor traffic infractions. The Court's unanimous opinion, delivered by Justice Scalia, brought an end to a long-running debate over the proper …

A Call For Consistency: State V. Caouette Is No Longer Viable In Light Of Colorado V. Connelly And State V. Eastman, Donald W. Macomber

Maine Law Review

This Article challenges the Law Court's expansive interpretation in State v. Caouette of the scope of the privilege against self-incrimination embodied in Article I, section 6 of the Maine Constitution in the context of reviewing claims of the involuntariness of a confession. The court's declaration that a reliable confession must be suppressed on state constitutional grounds based solely on a suspect's internal factors, and in the absence of any police overreaching in obtaining the confession, contradicted two centuries of constitutional jurisprudence requiring some form of government action to implicate the protections of the Bill of Rights and the Declaration of …

Commerce Clause Challenges Spawned By United States V. Lopez Are Doing Violence To The Violence Against Women Act (Vawa): A Survey Of Cases And The Ongoing Debate Over How The Vawa Will Fare In The Wake Of Lopez, Lisanne Newell Leasure

Maine Law Review

On September 14, 1994, in response to and in recognition of the epidemic of violence against women in the United States, Congress enacted the Violence Against Women Act (VAWA). The VAWA is a comprehensive statute designed to provide women greater protection from and recourse against violence and to impose accountability on abusers and those who commit crimes of violence based on gender animus. The VAWA, which contains seven parts, creates new federal crimes, strengthens penalties for existing federal sex crimes, and provides $1.6 billion over six years for education, research, treatment of domestic and sex crime victims, and the improvement …

Intimate Partner Violence Strategies: Models For Community Participation, Jenny Rivera

Maine Law Review

Over the last several years, states have passed legislation to address intimate partner violence, more commonly known as “domestic violence,” or violence and abuse between current and former spouses, or persons in similar intimate relationships. Much of this legislation is composed of civil and criminal provisions, including criminal sanctions for intimate partner violence. The constitutionality, practical impact, and present and potential benefits of these statutes are the topic of political debates, scholarly diatribes, and litigation. The passage and implementation of federal legislation specifically designed to address violence between present and former spouses and intimate partners reflects a sea change in …

What Caused The 2016 Chicago Homicide Spike? An Empirical Examination Of The 'Aclu Effect' And The Role Of Stop And Frisks In Preventing Gun Violence, Paul Cassell, Richard Fowles

Utah Law Faculty Scholarship

Homicides increased dramatically in Chicago in 2016. In 2015, 480 Chicago residents were killed. The next year, 754 were killed–274 more homicide victims, tragically producing an extraordinary 58% increase in a single year. This article attempts to unravel what happened.

This article provides empirical evidence that the reduction in stop and frisks by the Chicago Police Department beginning around December 2015 was responsible for the homicide spike that started immediately thereafter. The sharp decline in the number of stop and frisks is a strong candidate for the causal factor, particularly since the timing of the homicide spike so perfectly coincides …

Jeremias V. State, 134 Nev. Adv. Op. 8 (Mar. 01, 2018), Maliq Kendricks

Nevada Supreme Court Summaries

The Nevada Supreme Court determined that a judgment of conviction, pursuant to a jury verdict, of one count each of conspiracy to commit robbery and burglary while in possession of a deadly weapon and two counts each of robbery with the use of a deadly weapon and murder with the use of a deadly weapon, commands a death sentence.

Criminal Procedure And The Good Citizen, I. Bennett Capers

Faculty Scholarship

No abstract provided.

To Deceive Or Not To Deceive: Law Enforcement Officers Gain Broader Approval To Use Deceptive Tactics To Obtain Voluntary Consent, Alex G. Myers

Mercer Law Review

In the modern era of criminal investigations, law enforcement officers use many tactics from their bag of tricks to catch criminals. One such tactic, deception, has long been used to lull suspects into a false sense of security. Another tactic, voluntary consent, is widely used to gain permission to search suspects or their premises. While such tactics are prevalent, they must not run into conflict with the United States Constitution. Specifically, the Fourth Amendment of the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and …