Criminal Law Commons^™

When Is A Criminal Trial Not A Criminal Trial? - The Case Against Jury Trials In Juvenile Court, Ronald G. Russo

The Catholic Lawyer

No abstract provided.

Revisiting Our Administrative System Of Criminal Justice, Benjamin E. Rosenberg

Res Gestae

Nineteen years after Judge Lynch’s piece, "Our Administrative System of Criminal Justice," this Article considers recent developments in the criminal justice system and whether Judge Lynch’s observations have withstood the test of time. It suggests that Judge Lynch’s observation—that our criminal justice system has strayed far from the model of the adversarial system—remains as true today as it was when he made it in 1998. It further explains that developments in the nineteen years since the publication of “Our Administrative System of Criminal Justice” have caused the criminal justice system to stray even further from the adversarial model and in …

Civil Liberty Or National Security: The Battle Over Iphone Encryption, Karen Lowell

Georgia State University Law Review

On June 5, 2013, Edward Snowden released what would be the first of many documents exposing the vast breadth of electronic surveillance the Federal Bureau of Investigation (FBI) and the National Security Agency (NSA) had been conducting on millions of United States citizens. Although the federal agencies had legal authority under the Foreign Intelligence Surveillance Act (FISA) to collect metadata from companies such as Verizon, many Americans considered this data collection to be a massive invasion of privacy.

Equipped with the knowledge of sweeping domestic surveillance programs, citizens and technology firms fighting for strong privacy and security protection, have started …

Weaver V. Commonwealth Of Massachusetts, Bruce Green, Russell Pearce

Amicus Briefs

No abstract provided.

Bail Nullification, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

Preclusion And Criminal Judgment, Lee Kovarsky

Notre Dame Law Review

The defining question in modern habeas corpus law involves the finality

of a state conviction: What preclusive effect does (and should) a criminal

judgment have? Res judicata and collateral estoppel —the famous preclusion

rules for civil judgments—accommodate basic legal interests in fairness,

certitude, and sovereignty. Legal institutions carefully calibrate the preclusive

effect of civil judgments because judicial resources are scarce, because

the reliability and legitimacy of prior process can vary, and because courts

wield the authority of a repeat-playing sovereign that will find its own civil

judgments attacked in foreign litigation. In stark contrast to the legal sophistication

lavished on …

Beyond Law And Fact: Jury Evaluation Of Law Enforcement, Lauren M. Ouziel

Notre Dame Law Review

Criminal trials today are as much about the adequacy and legitimacy of the defendant’s accusers—police and prosecutors—as the alleged deeds of the accused. Yet we lack theory to conceptualize this reality, doctrine to set its parameters, and institutional mechanisms to adapt to it. The traditional framework used by courts and scholars to delineate the jury’s role—along the continuum between “fact-finding” and “law-finding”—is inadequate to the task. Jury evaluations of law enforcement are more accurately conceptualized as enforcement-finding, a process that functions both in and outside that continuum. In considering enforcement-finding’s justification and proper scope, history offers a useful analytical frame. …

Updating The Social Network: How Outdated And Unclear State Legislation Violates Sex Offenders’ First Amendment Rights, Elizabeth Tolon

Fordham Law Review

Readily available on computers, phones, tablets, or television, social media has become a necessary platform of expression for many. But, for others, social media is an inaccessible tool whose very use has criminal repercussions. To protect innocent children, many states have enacted legislation restricting sex offenders’ access to social media. Unfortunately, this legislation is often outdated, overly restrictive, and unconstitutional under the First Amendment. North Carolina has recently attracted national attention, as its statute highlights the potential constitutional issues states face in drafting such legislation. To avoid the constitutional concerns that North Carolina faces, state legislators must draft statutes narrowly …

Classified Information Cases On The Ground: Altering The Attorney-Client Relationship, Paul G. Gill

University of Richmond Law Review

No abstract provided.

Hard Bargaining In Plea Bargaining: When Do Prosecutors Cross The Line?, Cynthia Alkon

Faculty Scholarship

Well over 90 percent of all criminal cases in the United States are resolved by plea bargaining and not by trial. This means that how plea bargaining works impacts nearly every criminal defendant. However, there are few restrictions to protect defendants in the negotiating process. One serious problem is that prosecutors regularly use hard bargaining tactics such as exploding offers, threats to add enhancements, take-it-or-leave-it offers, and threats to seek the death penalty. These hard bargaining tactics contribute to the often highly coercive atmosphere of plea bargaining that can lead innocent defendants to plead guilty. Pressure to plead guilty can …

Unprecedented Infringement: Debunking The Constitutionality Of Dna Collection From Mere Arrestees In Light Of Maryland V. King, Christen Giannaros

Journal of Civil Rights and Economic Development

No abstract provided.

What Constitutes "Custody" Under Miranda?: An Examination Of Maine's Test As Applied In State V. Kittredge, Elizabeth L. Tull

Maine Law Review

In recent years, the Maine Supreme Judicial Court, sitting as the Law Court, has issued several opinions addressing whether a defendant’s statements are admissible when made to law enforcement in the absence of “Miranda warnings.” These cases have similar features: a defendant made a personally incriminating statement; raised an appeal arguing that Miranda warnings should have been, but were not, read to him or her; and the Court—in many cases—determined that the defendant was not technically in police custody, and thus there was no requirement to recite Miranda warnings to him or her. Miranda warnings are an important safeguard that …

State V. Lovejoy: Should Pre-Arrest, Pre-Miranda Silence Be Admissible During The State's Case-In-Chief As Substantive Evidence Of Guilt?, Mark A. Rucci

Maine Law Review

Article 1, section 6 of Maine Constitution reads in part that “[t]he accused shall not be compelled to give evidence against himself or herself, nor be deprived of life, liberty, property, or privileges . . . .” Further, the Law Court has held that “the State constitutional protection against self-incrimination is the equivalent of the Fifth Amendment." However, as with most provisions of the Constitution, the protection against self-incrimination is open to interpretation. While the Supreme Court has answered some questions surrounding the Fifth Amendment’s protections, it has left many decisions regarding its scope largely within the purview of the …

Knock And Talk No More, Jamesa J. Drake

Maine Law Review

The Supreme Court has set out a roadmap for challenging one of the most common and insidious police tactics used today: the knock-and-talk. The path is short and clear and it leads to the inescapable conclusion that the knock-and-talk—as it is actually employed in practice—is unconstitutional. Although the Court has yet to squarely consider the issue, some Justices have already taken pains to say, in dictum, that knock-and-talks are lawful. Practitioners should not be dissuaded. What this faction of the Court describes is a highly romanticized—and utterly inaccurate—conception of what a knock-and-talk actually entails. The sort of activity that these …

The Fear Factor: Exploring The Impact Of The Vulnerability To Deportation On Immigrants' Lives, Shirley P. Leyro

Dissertations, Theses, and Capstone Projects

This qualitative study explores the impact that the fear of deportation has on the lives of noncitizen immigrants. More broadly, it explores the role that immigration enforcement, specifically deportation, plays in disrupting the process of integration, and the possible implications of this interruption for immigrants and their communities. The study aims to answer: (1) how vulnerability to deportation specifically impacts an immigrant’s life, and (2) how the vulnerability to deportation, and the fear associated with it, impacts an immigrant’s degree of integration. Data were gathered through a combination of six open-ended focus group interviews of 10 persons each, and 33 …

Riley And Abandonment: Expanding Fourth Amendment Protection Of Cell Phones, Abigail Hoverman

Northwestern University Law Review

In light of the privacy concerns inherent to personal technological devices, the Supreme Court handed down a unanimous decision in 2014 recognizing the need for categorical heightened protection of cell phones during searches incident to arrest in Riley v. California. This Note argues for expansion of heightened protections for cell phones in the context of abandoned evidence because the same privacy concerns apply. This argument matters because state and federal courts have not provided the needed protection to abandoned cell phones pre- or post-Riley.

What Lurks Below Beckles, Leah M. Litman, Shakeer Rahman

Northwestern University Law Review

This Essay argues that if the Supreme Court grants habeas relief in Beckles v. United States, then it should spell out certain details about where a Beckles claim comes from and who such a claim benefits. Those details are not essential to the main question raised in the case, but the federal habeas statute takes away the Supreme Court’s jurisdiction to hear just about any case that would raise those questions. For that reason, this Essay concludes that failing to address those questions now could arbitrarily condemn hundreds of prisoners to illegal sentences and lead to a situation where the …

Bitcoin Versus Regulated Payment Systems: What Gives?, Lawrence J. Trautman, Alvin C. Harrell

Cardozo Law Review

The article explores the evolution and challenges of virtual currencies like Bitcoin, highlighting their potential to transform traditional payment systems while posing significant regulatory and jurisdictional difficulties. It argues that while virtual currencies offer benefits such as reduced transaction costs and financial inclusion, their decentralized nature and association with illicit activities necessitate a balanced approach to regulation. The article emphasizes the importance of adapting legal frameworks to accommodate innovation while addressing risks, ensuring a stable environment for virtual currencies to coexist with traditional monetary systems.

Ideology, Race, And The Death Penalty: "Lies, Damn Lies, And Statistics" In Advocacy Research, Anthony Walsh, Virginia Hatch

Journal of Ideology

We use the literature on race in death penalty to illustrate the hold that ideology has on researchers and journalists alike when a social issue is charged with emotional content. We note particularly how statistical evidence become misinterpreted in ways that support a particular ideology, either because of innumeracy or because—subconsciously or otherwise—one’s ideology precludes a critical analysis. We note that because white defendants are now proportionately more likely to receive the death penalty and to be executed than black defendants that the argument has shifted from a defendant-based to a victim-based one. We examine studies based on identical data …

Policing A Negotiated World: A Partial Test Of Klinger’S Ecological Theory Of Policing, Travis A. Taniguchu, Christopher Salvatore

Department of Justice Studies Faculty Scholarship and Creative Works

The primary goal of the current study is to examine a portion of Klinger’s theory. Specifically, we test the influence of organizational and environmental contextual factors, guided by Klinger’s theory, on one measure of officer vigor. To date, few studies have taken this approach to examine Klinger’s theory. The study builds on prior research that has tested aspects of Klinger’s theory and adds new analytic strategies that prior studies have not used. The results of this study have implications for both theory and practice, and they add to the growing literature examining the influence of ecological and organization factors on …

Newsroom: Nbc News: Coombs On Chelsea Manning 01-13-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Commodifying Policing: A Recipe For Community-Police Tensions, Nora V. Demleitner

Scholarly Articles

This Article, in Part II, begins with a description of how municipalities, at least since the recession of 2008, have fallen short of fully funding their departments. Part III focuses on four distinct outside funding components and their impact on policing. The first subsection discusses asset forfeitures, under both state and federal law. Subsection two highlights revenue derived from citations, often in the form of traffic tickets. A discussion of fees that are being added to fines, often to fund courts, probation agencies, and police departments, follows. The increasing amounts and types of fees imposed have substantially increased the burden …

The President's Role In Advancing Criminal Justice Reform, Barack Obama

United States Department of Justice: Publications

Criminal justice is a complex system, administered at all levels of government and shaped by a range of actors. Thanks to the dedicated efforts of so many in my Administration, the bipartisan push for reform from federal, state, and local officials, and the work of so many committed citizens outside government, America has made important strides. We have reduced overlong sentences for offenders and removed barriers for those with criminal records. We have made progress in helping people, especially young people, avoid getting entangled in the justice system in the first place. This Commentary talks about those achievements — and …

Crimmigration: The Missing Piece Of Criminal Justice Reform, Yolanda Vazquez

Faculty Articles and Other Publications

Over the last decade, a new push for criminal justice reform has taken hold. While the moral and fiscal costs have been exorbitant over the last forty years, failing state budgets and bipartisan recognition of the “broken” system have finally caused legislatures, politicians, and advocates to reassess the costs and benefits of the criminal justice system. Breaking the “tough on crime/soft on crime” binary, the “smart on crime” motto has become a helpful tool in reform efforts aimed at reducing the number of individuals incarcerated and ensuring its fairness, regardless of race and socioeconomic status. Little attention, however, has been …

On Competence: (Re)Considering Appropriate Legal Standards For Examining Sixth Amendment Claims Related To Criminal Defendants’ Mental Illness And Disability, Sarah Gerwig-Moore

Articles

This Article addresses the questions of attorney error and client competency and examines the following issues: the origin and development of the legal tests for intellectual competency to stand trial or enter a plea and the tests for evaluating Sixth Amendment effective assistance of counsel claims; the range of state and federal approaches to circumstances when those two situations converge; and whether and how our legal tests should be shaped to best assess attorney error when the client likely has an intellectual disability or incompetence. When consideration of a defendant's mental illness or mental disability forms the basis of a …

Relational Criminal Liability, Steven R. Morrison

Florida State University Law Review

“Relational criminal liability,” or one person’s criminal liability for the actions of another by way of a group of which both individuals are a part, generates a fundamental tension between collectivist and individualist approaches to liability. The collectivist approach, which reifies the group qua group, enables individuals to be liable for the acts of the group and the group to be liable for the acts of individuals. The individualist approach treats ind-viduals qua individuals, holding them liable only for their own conduct.

This tension sounds both in moral philosophy and legal theory. As to philosophy, Michael Bratman, Margaret Gilbert, and …

Who Should Own Police Body Camera Videos?, Laurent Sacharoff, Sarah Lustbader

Sturm College of Law: Faculty Scholarship

Numerous cities, states, and localities have adopted police body camera programs to enhance police accountability in the wake of repeated instances of police misconduct, as well as recent reports of more deep-seated police problems. These body camera programs hold great promise to achieve accountability, often backed by millions of dollars of federal grants.

But so far, this promise of accountability has gone largely unrealized, in part because police departments exercise near-total control over body camera programs and the videos themselves. In fact, the police view these programs chiefly as a tool of ordinary law enforcement rather than accountability — as …

Can We Protect The Innocent Without Freeing The Guilty? Thoughts On Innocence Reforms That Avoid Harmful Tradeoffs, Paul Cassell

Utah Law Faculty Scholarship

It is fundamentally important that the criminal justice system accurately separate the guilty from the innocent. But many recent reform measures from the innocent movement rest on shaky ground. Protecting against wrongful convictions can create tradeoffs. If poorly crafted, a reform measure might not only prevent convicting innocent persons but also guilty persons, allowing dangerous criminals to avoid incarceration and continue to victimize innocent persons. From a public policy perspective, these tradeoffs create concern that reform measures may be cures worse than the disease.

With this caution in mind, it is possible to craft reforms that help to protect the …

Petitioner’S Response To The Court’S Order To Show Cause, Johnson V. Pfister, Docket No. 1:17-Cv-03997 (N.D. Ill. 2017), J. Damian Ortiz, The John Marshall Law School Pro Bono Clinic

Court Documents and Proposed Legislation

No abstract provided.

Black And Poor: The Grave Consequences Of Utah V. Strieff, Chanae L. Wood

St. Thomas Law Review

This Comment brings reconciliation between the majority and minority opinions in Strieff by proposing a solution that will uphold Fourth Amendment rights and public safety. Part II explores the Fourth Amendment by tracing the origins of the exclusionary rule, and then discusses the Court's first step in undermining constitutional rights in Terry v. Ohio. Part III discusses the Court's trend of weakening Fourth Amendment rights and provides an in-depth analysis of the impact its most recent Fourth Amendment ruling, Strieff will have on Blacks and lower socioeconomic citizens. Part IV provides a comprehensive solution, suggesting a warrant hierarchy system that …