Criminal Law Commons^™

Sell-Ing Your Soul To The Courts: Forced Medication To Achieve Trial Competency In The Wake Of Sell V. United States, Elizabeth G. Schultz

Akron Law Review

Sell involves issues of individual liberty that reach beyond the sphere of the mentally ill. Although the Court ultimately decided in Dr. Sell’s favor by applying the facts of the case to a heightened scrutiny test, the Court missed an opportunity to decide this case on broader, more protective constitutional grounds for other mentally ill defendants.

This Note considers the effect that the decision in Sell v. United States has on mentally ill criminal defendants in both procedural and substantive arenas. Section II gives a brief introduction to the collateral order doctrine and discusses forced medication for trial competency purposes. …

Third Strike Or Merely A Foul Tip?: The Gross Disproportionality Of Lockyer V. Andrade, Joy M. Donham

Akron Law Review

“The United States is besieged by an incarceration crisis which far surpasses that of any other nation.” Scholars attribute the increasing prison population to changes in sentencing policy. Politicians have used the public pressure resulting from its fear of violence to pass legislation that supports this change in policy and creates more fixed sentencing structures.

California’s Three Strikes law (Three Strikes), an example of such a structure, has resulted in the largest increase in the prison population. Public pressure, spurred by the fear of violent criminals being released and committing the same crimes again and again, led to the enactment …

Dna Storage Banks: The Importance Of Preserving Dna Evidence To Allow For Transparency And The Preservation Of Justice, Cristina Martin

Chicago-Kent Law Review

What is the duty to preserve information in today’s society? In order for humanity to evolve, change and flourish in the future, society needs to preserve its information from the past. In the criminal justice field, preservation of evidence has special significance. DNA evidence in particular has become a helpful aid for innocent defendants who have been improperly imprisoned. Over the past twenty years, the number of exonerations of imprisoned criminal defendants has increased dramatically. With the advancement of technology, old, previously untestable or improperly tested DNA evidence will need to be retested. However, most states do not have proper …

Empowering Employees To Prevent Fraud In Nonprofit Organizations, John M. Bradley

Cardozo Public Law, Policy & Ethics Journal

This Article examines the significant problem of fraud within nonprofit organizations and demonstrates that current anti-fraud measures do not adequately reflect the important role employees play in perpetuating or stopping fraudulent activity. Psychological and organizational behavior studies have established the importance of (1) participation and (2) peers in shaping the behavior of individuals within the organizational context. This Article builds on that research and establishes that to successfully combat fraud, organizations must integrate employees into the design, implementation, and enforcement of anti-fraud strategy and procedures. Engaged, empowered employees will be less likely to commit fraud and more likely to dissuade …

Developmental Detour: How The Minimalism Of Miller V. Alabama Led The Court's "Kids Are Different" Eighth Amendment Jurisprudence Down A Blind Alley, Mary Berkheiser

Akron Law Review

With its narrow ruling, Miller has taken the Eighth Amendment kids are different jurisprudence on a deleterious detour that could lead Miller and Jackson and others like them to a certain dead end. Where Miller went wrong is the subject of this paper. It begins with Graham and the significance of the Court’s ruling that the Eighth Amendment categorically precludes imposition of a sentence of life without parole on a juvenile nonhomicide offender. Next, this paper turns to the Supreme Court’s decision in Miller, parsing the Court’s reliance on precedent and the reasoning that led it to adopt a ruling …

Bright Lines, Black Bodies: The Florence Strip Search Case And Its Dire Repercussions, Teresa A. Miller

Akron Law Review

Part I is a brief history of Search and Seizure law, focusing on seismic doctrinal shifts that occurred from the 1950s to the present. As a framework for the important cases, the Founders’ concerns about abuse of governmental authority are discussed, as well as the rights protected by the Fourth Amendment. Various governmental programs will also be presented, such as the War on Drugs and its call for a large-scale federal anti-drug policy, first initiated by President Richard Nixon in 1969. Part II is a description of the central reasoning presented in Florence v. Board of Chosen Freeholders, including the …

Florence V. Board Of Chosen Freeholders: Police Power Takes A More Intrusive Turn, Wayne A. Logan

Akron Law Review

This symposium affords an opportunity to reflect upon the combined force of Florence and one of its foundational precedents, also decided by a 5-4 vote: Atwater v. City of Lago Vista. In Atwater, the Court afforded police explicit authority to arrest individuals for very minor offenses (there failure to wear a seatbelt) without a warrant, paving the way not only for arrests such as experienced by Albert Florence, but also a myriad of others, based on laws contained in state, local and federal codes. With Atwater, the Court refused to limit the governmental power to subject individuals to the trauma …

The Duke Rape Case Five Years Later: Lessons For The Academy, The Media, And The Criminal Justice System, Dan Subotnik

Akron Law Review

The time that has since passed allows for a more comprehensive evaluation of the cultural meaning of the Duke Rape case. This is the goal of the newly released “Institutional Failures,” which constitutes a point of departure for this review. The aim of this article is first to clarify the contribution this book makes to an understanding of the case. I will describe and analyze the content of the nine essays that make up the book; I will make reference to related works, and I will offer a concluding evaluation of the book’s likely impact.

When Are The People Ready? The Interplay Between Facial Sufficiency And Readiness Under Cpl Section 30.30, John H. Wilson

Pace Law Review

In this article, we will explore the intersecting concepts of conversion, facial sufficiency, and readiness. As we shall see, readiness for trial does not necessarily follow from the conversion of a complaint and dismissal on CPL section 30.30 grounds does not necessarily follow from a finding of facial insufficiency.

Implicated But Not Charged: Improving Due Process For Unindicted Co-Conspirators, Raeed N. Tayeh

Akron Law Review

This Comment posits that the practice of publicly naming unindicted co-conspirators before trial violates due process and that unless preventative measures are adopted to halt this practice, such due process violations will continue. This conclusion is buttressed by the text that follows, which surveys the relevant case law on the rights of unindicted co-conspirators, highlights the types of harm that a sample of unindicted co-conspirators have suffered as a result of being publicly named, and proposes procedures and rules that, if adopted, would conform with due process and help prevent these harms.

In this Comment, I will expand on the …

Full Disclosure: Cognitive Science, Informants, And Search Warrant Scrutiny, Mary Nicol Bowman

Akron Law Review

This article aims to improve the quality of evidence gathering and interpretation at one crucial phase of investigations: the evaluation of search warrant applications. Part II of this article provides background on the search warrant application process, including how courts evaluate such applications based on informants’ tips and how defendants can subsequently challenge those decisions. Part III then discusses the ways in which cognitive biases can affect each stage of the search warrant process. Part IV provides my suggested solutions to the problems identified, all of which fall under the general umbrella of full disclosure. That part argues that education …

Inmates’ E-Mails With Their Attorneys: Off-Limits For The Government?, Amelia H. Barry

Catholic University Law Review

The attorney-client privilege is vital to inmates who otherwise have limited opportunities for private communications in prison. Traditionally, inmates have only been able to communicate with their attorneys via in-person visits, phone calls, and mailed letters. As federal inmates have begun using e-mail to converse with their attorneys, courts have had to determine if these conversations are protected by the attorney-client privilege. This Comment discusses courts’ approaches to this question, many of which have found that inmates’ e-mail communications with their attorneys are not privileged because by using the federal prison e-mail system, which warns users that conversations can be …

Mirandizing Terrorism Suspects? The Public Safety Exception, The Rescue Doctrine, And Implicit Analogies To Self-Defense, Defense Of Others, And Battered Woman Syndrome, Bruce Ching

Catholic University Law Review

In its 1984 decision New York v. Quarles, the Supreme Court announced the public safety exception, under which statements made by un-Mirandized suspects can be admissible when made in response to questions reasonably asked to protect the safety of the arresting officers or the general public. During the investigation of terrorism cases, law enforcement agencies have begun to extend the time of un-Mirandized questioning of suspects, with the hope that courts will find that the public safety exception makes the suspects’ statements admissible in the ensuing prosecutions.

This Article argues that in announcing the public safety exception, …

Criminal Mind Or Inculpable Adolescence? A Glimpse At The History, Failures, And Required Changes Of The American Juvenile Correction System, Christopher J. Menihan

Pace Law Review

This Comment provides an historical analysis of the principles, understandings and laws that have formed and altered the American juvenile correction system. Part I offers an historical synopsis of the societal understanding that juvenile offenders are less culpable than their adult counterparts and explains the process by which this concept came to permeate early American common law. By discussing the early nineteenth-century juvenile correction reformation movement and the cases that followed, Part I also illustrates the development and early failures of the American juvenile correction system. Part II explains the history of juvenile waiver laws, from their early presence in …

Cruel And Unusual Before And After 2012: Miller V. Alabama Must Apply Retroactively, Tracy A. Rhodes

Maryland Law Review

No abstract provided.

Overcriminalizing Speech, Michal Buchhandler-Raphael

Cardozo Law Review

Recent years have seen a significant expansion in the criminal justice system's use of various preemptive measures, aimed to prevent harm before it occurs. This development consists of adopting a myriad of prophylactic statutes, including endangerment crimes, which target behaviors that merely pose a risk of future harm but are not in themselves harmful at the time they are committed.

This Article demonstrates that a significant portion of these endangerment crimes criminalize various forms of speech and expression. Examples include conspiracies, attempts, verbal harassment, instructional speech on how to commit crimes, and possession crimes. The Article argues that in contrast …

Adequacy Of Notice Under Cafra: Resolving Constitutional Due Process Challenges To Administrative Forfeitures, Rebecca Hausner

Cardozo Law Review

No abstract provided.

Summary Of Guitron (Miguel) V. State, 131 Nev. Adv. Op. 27 (May 21, 2015), Aleem Dhalla

Nevada Supreme Court Summaries

The Court determined that (1) the State presented sufficient evidence for a jury to convict Guitron of incest and sexual assault, (2) the district court did err by not allowing Guitron to introduce evidence of the victims sexual knowledge, but this error was harmless, (3) the district court did err refusing to give the jury Guitron’s requested inverse elements instruction, but this error was also harmless, and (4) Guitron could not show that the district court erred by denying his Batson challenge.

What Is Federal Habeas Worth?, Samuel R. Wiseman

Scholarly Publications

Federal habeas review of state non-capital cases under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is widely regarded as deeply flawed for producing a huge volume of costly litigation and very little relief. Many scholars have called for AEDPA’s repeal and a return to more robust federal review, but recently, several prominent commentators have suggested more dramatic change— radically limiting federal habeas in exchange for more fruitful reform efforts. In an era of limited criminal justice budgets and an increasing focus on efficiency, these proposals are likely to proliferate. This Article lays out a needed empirical and …

Do Irish Courts And The European Court Of Human Rights Have Achieved The Correct Balance Between Protection Of The Rights Of Individual Prisoners And Pragmatic Concerns Regarding The Proper Functioning Of The Prison System., Adrian Berski

Reports

Nowadays it is very hard to find the relevant balance between decisions of the Irish Courts and European Court of Human Rights (ECtHR), regarding the rights of individual prisoners and the proper functioning of the prison system. On one side, the main function of the courts is resolution dispute, apply the relative law and most importantly: protecting the law and human rights. On the other hand, court decisions have to be based on the relevant prison and justice systems that applies to each particular country.

It is worth taking into consideration that decisions made by the European Court of Human …

A Legal And Policy Argument For Bail Denial And Preventative Treatment For Batterers In The United States, Dawn Beichner, Robbin Ogle, Anne Garner, Daniel Anderson

Women's and Gender Studies Program: Faculty Publications

Historically, battering has been a culturally and legally acceptable form of social control within the United States. This article provides an examination of how this legacy of social acceptance has influenced the development of laws and social policies related to battering. We provide a critique of our current approach to battering and our historical reliance on private or social helping agencies intended to hide and protect victims. We call for a transformation of our current policies that provides for the removal of the batterer—not the victim and her children—from the family home through a process of bail denial and preventative …

Following Orders: Campbell V. United States, The Waiver Of Appellate Rights, And The Duty Of Counsel, Jacob Szewczyk

Catholic University Law Review

In the 1984 case of Strickland v. Washington, the Supreme Court announced a two-pronged test to analyze whether a criminal defendant has received ineffective assistance of counsel. Since the rule was announced, the Court has expanded Strickland’s scope to apply to analyze counsel’s review at different stages of the criminal proceeding. This Comment addresses one issue that has remained unanswered by the Supreme Court: whether counsel’s failure to file a notice of appeal, after a defendant has waived his right to appeal through a plea bargain, constitutes ineffective assistance of counsel. This Comment discusses the circuit split that …

O'Connor's Firsts, Phyllis L. Crocker

Akron Law Review

Chief Justice Maureen O’Connor will make her mark on the Ohio court system and on the laws of Ohio in many ways. She made two significant marks her first day as Chief Justice: she was the first woman elected to the position of Chief Justice in Ohio and in her swearing-in speech she called for review of the death penalty in Ohio.1 Both were meaningful to me personally and as a citizen of Ohio. I appreciated her acknowledging her place in history and her willingness to tackle, right from the beginning of her tenure, the important topic of the death …

Newsroom: Waters '98 Testifies For Innocence Project, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Gay Panic, Gay Victims, And The Case For Gay Shield Laws, J. Kelly Strader, Molly Selvin, Lindsey Hay

Cardozo Law Review

In a highly publicized "gay panic" case, Brandon McInerney shot and killed Larry King in their middle school classroom. King was a self-identified gay student who sometimes wore jewelry and eye makeup to school and, according to those who knew him, was possibly transgender. Tried as an adult for first-degree murder, McInerney asserted a heat of passion defense based upon King's alleged sexual advances. The jury deadlocked, with a majority accepting McInerney's defense.

Drawing largely upon qualitative empirical research, this Article uses the Larry King murder case as a prism though which to view the doctrinal, theoretical, and policy bases …

Midnight In The Garden Of Ne Bis In Idem: The New Urgency For An International Enforcement Mechanism, Thomas J. Bussen

Cardozo Journal of International and Comparative Law

The article examines the challenges posed by the global proliferation of antibribery laws, particularly the Foreign Corrupt Practices Act (FCPA) and similar international laws, which have led to overlapping prosecutions of multinational companies (MNCs) for the same offenses. This phenomenon, termed "da mihi quoque" or "me too" prosecutions, results in significant financial and reputational costs for companies. The article argues that while these laws aim to combat corruption, their broad jurisdictional reach and uneven enforcement may inadvertently harm economic opportunities and governance systems in developing countries. It advocates for a more coordinated and balanced approach to enforcement to address these …

The Jury As Democracy, Jenny E. Carroll

Faculty Scholarship

Almost from the moment the law is set to paper, it is shaped and refined through acts of interpretation and discretion. Police and prosecutors choose which cases to investigate, which to charge and how to charge them. Judges make decisions every day that affect the outcome of cases. These acts of interpretation and discretion are driven by the perspectives of those empowered to make them. All too frequently, they reinforce existing power dynamics. But there are other realms of discretion in criminal law. Whether seeking to apply a legal standard as instructed or engaging in an act of nullification, ordinary …

Collateral Damage: A Guide To Criminal Appellate, Postconviction, And Habeas Corpus Litigation In Wisconsin, Matthew M. Fernholz

Marquette Law Review

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Should The American Grand Jury Survive Ferguson, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

The grand jurors deliberated in secret, as the masses demanded the indictment of the would-be defendants. Ultimately, the grand jury would refuse to indict, enraging the many who believed justice had been denied

An Analysis Of The Legal And Practical Implications Of The Potential Increased Participation In Jury Service By Racial Minorities In The U.S. Criminal Justice System, Brian Keith Leonard

West Virginia Law Review

No abstract provided.