Criminal Law Commons^™

Factually Innocent Without Dna? An Analysis Of Utah's Factual Innocence Statute, Nic Caine

Utah OnLaw: The Utah Law Review Online Supplement

Since 1989, DNA evidence has fueled the innocence movement, helping hundreds prove their innocence and obtain freedom. DNA technology has been an invaluable development for the innocence movement, and DNA technology will continue to advance and improve in the future. DNA evidence is not available in the majority of cases, however, and many believe that DNA exonerations will eventually diminish as DNA analysis becomes more widely available. Furthermore, “for every DNA exoneree there are hundreds if not over a thousand wrongfully convicted defendants whose cases do not contain biological evidence that could prove innocence.”150 It is time for other states …

The Evolution Of Justice Kennedy’S Eighth Amendment Jurisprudence On Categorical Bars In Capital Cases, Linda Carter

McGeorge School of Law Scholarly Articles

No abstract provided.

Process For The Dispossessed: Procedural Rights From Magna Carta To Modern International Law, Mark A. Drumbl

Scholarly Articles

Due process matters greatly to distinguished philosopher Larry May, who advocates for a vigourous assertion of procedural rights as constituting an international rule of law. He undertakes this ambitious, a la fois aspirational, task in Global Justice and Due Process.

Changing Tides: An Adaptable Prosecution Approach To Piracy’S Shifting Problem, Jessica Piquet

National Security Law Program

Although piracy off the coast of Somalia has captured worldwide attention, attacks in this region are decreasing while other regions are experiencing increases in pirate activity. This Note expands upon prior research into prosecution models for combatting piracy off the coast of Somalia to determine the adaptability and sustainability of these methods as applied to piracy in other regions. In examining the three most common prosecution models currently used and proposed (prosecution by domestic courts in regional states, prosecution by the capturing state or by a state with a significant nexus to the attack, and prosecution by a specialized piracy …

The Supreme Court Screws Up The Science: There Is No Abusive Head Trauma/Shaken Baby Syndrome “Scientific” Controversy, Joelle A. Moreno, Brian Holmgren

Faculty Publications

No abstract provided.

Regression To The Mean: How Miranda Has Become A Tragicomical Farce, Alfredo Garcia

St. Thomas Law Review

In my original article, I examined Miranda's historical and social background, discussed its precursors, traced the evolution of the case, and documented the dismantling of the Miranda doctrine. I also argued that the doctrine's "seductive appeal" lulled defense counsel into a false sense of security, thereby deflecting reliance on the "voluntariness" standard as a failsafe to Miranda. Further, I maintained that a waiver of Miranda in some instances served to sanitize an otherwise involuntary confession. Finally, I proposed to "do away" with Miranda, to return to the voluntariness standard with one caveat: that the government be precluded from relying on …

Confronting The Dead: The Supreme Court's Confrontation Clause Jurisprudence And Its Implications For Autopsy Reports, Reid R. Allison

Criminal Law Practitioner

No abstract provided.

Innocent Until Presumed Guilty: Florida’S Mistreatment Of Mens Rea And The Presumption Of Innocence In Drug Possession Cases, 46 J. Marshall L. Rev. 1157 (2013), Sean Mullins

UIC Law Review

No abstract provided.

Clever Contraband: Why Illinois’ Lockstep With The U.S. Supreme Court Gives Police Authority To Search The Bowels Of Your Vehicle, 47 J. Marshall L. Rev. 425 (2013), Jason Cooper

UIC Law Review

No abstract provided.

Culpability, Deterrence, And The Exclusionary Rule, Kit Kinports

Faculty Scholarship

This Article discusses the Supreme Court’s use of the concepts of culpability and deterrence in its Fourth Amendment jurisprudence, in particular, in the opinions applying the good-faith exception to the exclusionary rule. The contemporary Court sees deterrence as the exclusionary rule’s sole function, and the Article begins by taking the Court at its word, evaluating its exclusionary rule case law on its own terms. Drawing on three different theories of deterrence – economic rational choice theory, organizational theory, and the expressive account of punishment – the Article analyzes the mechanics by which the exclusionary rule deters unconstitutional searches and questions …

Evidence-Based Sentencing And The Scientific Rationalization Of Discrimination, Sonja B. Starr

Law & Economics Working Papers

This paper critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise-condemned discrimination, sanitized by scientific language. To demonstrate that this practice should be subject to heightened constitutional scrutiny, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that it cannot survive that scrutiny and is undesirable policy, I review the empirical evidence underlying the instruments. I …

Transcending Victimhood: Child Soldiers And Restorative Justice, In Victims Of International Crimes: An Interdisciplinary Discourse (Thorsten Bonacker & Christoph Safferling Eds., 2013), Mark A. Drumbl

Books and Chapters

The international community strives to eradicate the scourge of child soldiering. Mostly, though, these efforts replay the same narratives and circulate the same assumptions. This chapter, which takes a second look at these efforts, aspires to refresh law and policy so as to improve preventative, restorative, and remedial initiatives while also vivifying the dignity of youth. As a starting point, this chapter proposes that the dominant language used to characterise child soldiers—that of passive victimhood—be revisited so as to better recognise the potentiality of child soldiers to participate in and lead post-conflict reconstructive efforts. This chapter suggests a variety of …

Do Sexually Violent Predator Laws Violate Double Jeopardy Or Substantive Due Process? An Empirical Inquiry, Tamara Rice Lave, Justin Mccrary

Articles

No abstract provided.

Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Tamara Rice Lave, Aviva Orenstein

Articles

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on …

Summary Of Brass V. State, 128 Nev. Adv. Op. 68, Joseph Sakai

Nevada Supreme Court Summaries

An appeal addressing whether a district court committed reversible error by dismissing a prospective juror before conducting a Batson2 hearing, and whether there was evidence to support a kidnapping conviction.

Military Veterans, Culpability, And Blame, Youngjae Lee

Faculty Scholarship

Recently in Porter v. McCollum, the United States Supreme Court, citing “a long tradition of according leniency to veterans in recognition of their service,” held that a defense lawyer’s failure to present his client’s military service record as mitigating evidence during his sentencing for two murders amounted to ineffective assistance of counsel. The purpose of this article is to assess, from the just deserts perspective, the grounds to believe that veterans who commit crimes are to be blamed less by the State than offenders without such backgrounds. Two rationales for a differential treatment of military veterans who commit crimes are …

Lafler And Frye: A New Constitutional Standard For Negotiation, Rishi Batra

Cardozo Journal of Conflict Resolution

The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." In 1984 the Supreme Court in Strickland v. Washington established the standard for ineffective assistance of counsel that is a violation of this right. In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye, the Supreme Court extended the holding in Strickland to cover ineffective assistance by defense counsel in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that "the negotiation …

Introductory Note To Prosecutor V. Perišić, International Criminal Tribunal For The Former Yugoslavia (Icty), Chris Jenks

Faculty Journal Articles and Book Chapters

This note introduces a controversial ICTY decision which attempted to clarify the requisite elements required to convict the former head of the Army of Yugoslavia with aiding and abetting war crimes committed by other organizations in Bosnia-Herzegovina and Croatia. The Perišić judgment serves as a reminder of the still unsettled nature of international criminal law on even threshold issues like the elements for a mode of liability. Given that the Special Court for Sierra Leone has already affirmatively rejected the Perišić formulation the case may, sadly, signal the fragmentation of international criminal law.

Law As Shield, Law As Sword: The Icc's Lubanga Decision, Child Soldiers And The Perverse Mutualism Of Direct Participation In Hostilities, Chris Jenks

Faculty Journal Articles and Book Chapters

The International Criminal Court’s Lubanga decision has been hailed as a landmark ruling heralding an end to impunity for those who recruit and employ children in armed conflict and a pivotal victory for the protection of children. Overlooked amidst this self-congratulation is that the ICC incorrectly applied the law governing civilian participation in hostilities which perversely places child soldiers at greater risk of being attacked. The Court created a false distinction between active and direct participation in hostilities. Expanding the kinds and types of behaviors that constitute children actively participating in hostilities expanded Lubanga's liability. But under the law of …

A Feather On One Side, A Brick On The Other: Tilting The Scale Against Males Accused Of Sexual Assault In Campus Disciplinary Proceedings, Barclay S. Hendrix

Georgia Law Review

On April 4, 2011, the Department of Education's Office
of Civil Rights issued a "Dear Colleague" letter regarding
Title JX's applicability to sexual violence on college
campuses. This letter was sent to every college or
university receiving federal funding and instructed
recipients on how to meet their legal obligations. Some of
the most important changes in the letter pertained to how
schools must conduct their grievance procedures in
adjudicatingsexual assault claims. First, the 2011 letter
requires that schools use a preponderance of the evidence
standard to determine the accused's guilty or innocence.

Second, the letter strongly discourages schools from
allowing …

Killers Shouldn't Inherit From Their Victims-Or Should They?, Carla Spivack

Georgia Law Review

This Article questions, for the first time, the equitable and policy basis of Slayer Rules, the rules that bar killers from inheriting from those they kill. It shows that killings that involve inheritance usually occur as a result of domestic abuse or severe mental illness, and argues that, because the legal and social service systems offer little help to those trapped in abusive relationships or those disabled by mental illness, it is not justifiable for those systems to deprive the killer of an inheritance when he or she takes the only means of escape available.

Toward A Common Law Of Plea Bargaining, Wesley Macneil Oliver

Kentucky Law Journal

No abstract provided.

International Perspectives On Correcting Wrongful Convictions: The Scottish Criminal Cases Review Commission, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

Part I of this Article traces the history of the Scottish Criminal Cases Review Commission (SCCRC) and outlines the procedures employed by the SCCRC after an application is received, with particular attention to its extensive investigatory procedures. It also describes and analyzes the standards for referral of an application to the Scottish court. Part II briefly sets forth the statistics concerning applications, referrals, and judicial decisions. Part III includes an analysis of the SCCRC’s work by looking at the cases that have been referred and decided by the court. Those cases are divided into several categories: fresh evidence referrals, referrals …

Blanket Retroactive Amelioration: A Remedy For Disproportionate Punishments, S. David Mitchell

Faculty Publications

While statutes determine the conditions under which an individual is to be held accountable for their actions and identifies the punishment that shall attach to that conduct, they are not engraved in stone. Laws can and are changed. Legislatures will revisit whether a penalty is too harsh (or too lenient), and amend an existing statute to reflect the legislature’s evaluation of what is contemporaneously appropriate. This re-evaluation of a statutory punishment is ongoing assessment to determine whether the punishment is proportional to the conduct. Blanket retroactive amelioration allows society to correct overly harsh, overreactions and to restore the balance between …

Addressing Sexual Violence Against Youth In Custody: Youth Workers’ Handbook On Identifying And Addressing Sexual Violence In Juvenile Justice Settings, Brenda V. Smith, Jaime M. Yarussi

Research Reports & White Papers

From 1999 to 2012, The Project on Addressing Prison Rape (the Project) at American University’s Washington College of Law had a cooperative agreement with the National Institute of Corrections (NIC) to provide training to high-level correctional decisionmakers on key issues in addressing and investigating staff sexual misconduct. In 2003, with the enactment of the Prison Rape Elimination Act (PREA), the Project’s focus shifted to addressing prison rape—both staff sexual misconduct and offender-on-offender sexual abuse. In 2006, Smith Consulting began a collaborative effort with the Project and NIC to focus efforts on addressing sexual abuse of youth in custody. This handbook …

A Good Name: Applying Regulatory Takings Analysis To Reputational Damage Caused By Criminal History, Jamila Jefferson-Jones

Law Faculty Research Publications

No abstract provided.

Brady, Arkansas Rule 17.1, And Disclosure Of Scientific Evidence And Expert Opinion, J. Thomas Sullivan

Law Faculty Scholarship

No abstract provided.

Furman, After Four Decades, J. Thomas Sullivan

Law Faculty Scholarship

Problems of racial discrimination in the imposition of capital sentences, disclosure of misconduct by prosecutors and police, inconsistency in the quality of defense afforded capital defendants, exoneration of death row inmates due to newly available DNA testing, and, most recently, controversies surrounding the potential for cruelty in the execution process itself continue to complicate views about the morality, legality, and practicality of reliance on capital punishment to address even the most heinous of homicide offenses. Despite repeated efforts by the Supreme Court to craft a capital sentencing framework that ensures that death sentences be imposed fairly in light of the …

Strange Traffic: Sex, Slavery & The Freedom Principle, Anders Walker

All Faculty Scholarship

This article uses the recent prosecution of a sex trafficking case in rural Missouri to argue three points. One, the federal law of trafficking is currently being used in unanticipated ways, including the apprehension of individuals who pay for sex. Two, trafficking invites creative use precisely because it provides prosecutors with a more salient justification for punishment than either legal moralism or harm; a rhetorical plea to anti-slavery that enjoys a longstanding but under-theorized role in criminal law rhetoric. Three, anti-slavery’s recurrence in criminal law rhetoric underscores a larger doctrinal point, namely that H.L.A. Hart’s version of the harm principle …

Reclaiming Equality To Reframe Indigent Defense Reform, Lauren Sudeall Lucas

Faculty Publications By Year

Equal access to resources is fundamental to meaningful legal representation, yet for decades, equality arguments have been ignored in litigating indigent defense reform. At a time when underfunded indigent defense systems across the country are failing to provide indigent defendants with adequate representation, the question of resources is even more critical. Traditionally, advocates seeking indigent defense reform have relied on Sixth Amendment arguments to protect the rights of indigents in this context; however, the Sixth Amendment approach suffers from a number of shortcomings that have made it a poor tool for systemic reform, including its exclusive focus on attorney performance …