Criminal Law Commons^™

Mixed Messages: The Supreme Court’S Conflicting Decisions On Juries In Death Penalty Cases, Ken Miller, David Niven

ExpressO

The right to a jury determination of a capital defendant's fate has expanded recently. The era of judges making factual determinations then determining whether to apply a death sentence or judges having the power to overrule a jury's life sentence to impose death is over. The expanded right to access a jury and have it hold determinative power over a defendant's life has not, however, been accompanied by commensurate attention to the instructions that guide those jurors through the applicable law toward their verdict. Nor have adequate procedures been designed to produce a truly representative jury panel. In brief, the …

Would Banning Firearms Reduce Murder And Suicide? A Review Of International Evidence, Don B. Kates, Gary A. Mauser

ExpressO

The world abounds in instruments with which people can kill each other. Is the widespread availability of one of these instruments, firearms, a crucial determinant of the incidence of murder? Or do patterns of murder and/or violent crime reflect basic socio-economic and/or cultural factors to which the mere availability of one particular form of weaponry is irrelevant?

This article examines a broad range of international data that bear on two distinct but interrelated questions: first, whether widespread firearm access is an important contributing factor in murder and/or suicide, and second, whether the introduction of laws that restrict general access to …

An Integrated Perspective On The Collateral Consequences Of Criminal Convictions And Reentry Issues Faced By Formerly Incarcerated Individuals, Michael Pinard

Faculty Scholarship

This article examines the emergent focus on the collateral consequences of criminal convictions and the reentry of formerly incarcerated individuals. Specifically, the article details the ways in which legal scholars, policy analysts, elected officials, legal services organizations and community based organizations have begun to address these components of the criminal justice system. The article argues that these various groups have compartmentalized collateral consequences and reentry by focusing almost exclusively on one component to the exclusion of the other. In doing so, they have narrowed the lens through which to view these components, and have therefore missed opportunities to develop integrated …

Summary Of Stockmeier V. Psychological Review Panel, 122 Nev. Adv. Op. No. 50, Gregory A. Hubbard

Nevada Supreme Court Summaries

The Psychological Review Panel (“Psych Panel”) held a hearing to consider whether a prisoner serving consecutive sentences for sex offenses was a threat to society if he were released on parole. The Psych Panel decided not to certify the prisoner for release, partially based on new allegations made by the victim during the hearing. The prisoner filed a district court petition for a writ of mandamus, prohibition, or habeas corpus, challenging the Psych Panel’s actions. The district court denied and dismissed the petition. The Nevada Supreme Court held that the district court abused its discretion in denying and dismissing the …

Judicial Anarchy: The Admission Of Convictions To Impeach -State Supreme Court Interpretive Standards, 1990-2004, Dannye Holley

ExpressO

This is the second and sequential national study of an important evidence and criminal justice issue - the admission of convictions to impeach. It is a longitudinal national study of how state supreme courts have recently, over the last decade and one-half, evaluated this issue. The longitudinal study period of 1990-2004 mirros the study period of state rules on this issue which was undertaken in the first article. The study period was chosen for an explicit substantive rationale that was explained in that article and is repeated in this article. Because both articles are decade and one-half studies they will …

A Case For The Prosecution Of Kim Jong Il For Crimes Against Humanity, Genocide, And War Crimes , Grace M. Kang

ExpressO

This article provides a factual overview of the deplorable human rights situation in the Democratic People’s Republic of Korea (DPRK or North Korea). It shows how the International Criminal Court (ICC) could have jurisdiction over these crimes. It provides the legal framework for establishing individual criminal liability for the crimes under the ICC’s jurisdiction. It applies this framework and the legal standards for genocide, crimes against humanity, and war crimes to the facts existing in the DPRK, as provided by credible sources. It concludes that published facts indicate a reasonable basis to believe that Kim Jong Il, who controls the …

The Military Extraterritorial Jurisdiction Act And Its Implications For Private Military Companies, Dustin M. Tipling

ExpressO

Private Military Companies (PMCs) are civilian staffed corporations that provide military (and law enforcement) services, logistics, and support under contract to a government both inside and outside the country’s borders. Prior to Congress passing the Military Extraterritorial Jurisdiction Act, U.S. courts lacked jurisdiction to prosecute civilians accompanying United States’ Armed Forces overseas. This article will specifically address how the United States exercises jurisdiction and prosecutes the civilian employees of PMCs in United States courts for crimes they have committed in foreign countries while working under contract to the United States government.

Summary Of Mejia V. State, 122 Nev. Adv. Op. 43, David T. Gluth

Nevada Supreme Court Summaries

Defendant Mejia appealed a judgment of the Eighth Judicial District Court after a jury convicted him of one count of sexual assault against a minor under 14 years of age and seven counts of lewdness with a minor under 14 years of age. Mejia was sentenced to two concurrent terms of life imprisonment with the possibility of parole in ten years for each count of lewdness.

Probable Cause In A Nervous Age, Bruce A. Antkowiak

ExpressO

The article seeks a new understanding of the ancient principle of probable cause in an age in which public policy and law have been profoundly influenced by the fear of terrorism. It explores the importance of probable cause within a broader constitutional system, arguing that while it helps to protect the specific right against unreasonable searches, it is also part of a larger, structural protection of liberty generally.

The article explores the frustrating efforts a judge will undertake in finding meaning to the concept by resort to precedent, linguistics, mathematical models or history. Ultimately, it argues that the core of …

The Right To Be Hurt. Testing The Boundaries Of Consent., Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

People's right to consent to pain, injury or death has always been one of the most controversial issues in criminal law and moral philosophy. In recent years, that issue has moved to the forefront of public, legislative, and academic debates in the United States and abroad due to a series of high-profile criminal trials, which involved consenting victims in various contexts--from sadomasochism and cannibalism to experimental medical treatment and mercy killing.

Currently, American criminal law does not recognize consent of the victim as a defense to bodily harm, except in a few historically defined circumstances. That rule has been criticized …

Review Essay: Using All Available Information, Max Huffman

ExpressO

This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting …

The War On Terror, Local Police, And Immigration Enforcement: A Curious Tale Of Police Power In Post-9/11 America, David A. Harris

ExpressO

In post-9/11 America, no goal ranks higher for law enforcement than preventing the next terrorist attack. This is as true for local police departments as it is for the FBI, and police in cities. At the same time, many advocates of tightening U.S. immigration enforcement have recast their efforts as national security and anti-terrorism campaigns. Thus, these advocates and their many allies in the current administration and in Congress have called for local police to become involved in enforcing immigration law. Officials in both the executive and legislative branches of the federal government have taken a number of actions designed …

Non Bis In Idem And The International Criminal Court, Reynaud Neil Daniels

ExpressO

Non bis in idem, or the double jeopardy principle, is a fundamental element of fairness in criminal procedure. At its core, it prohibits the state from repeatedly prosecuting, and punishing, individuals for the same offence. The Rome Statute contains the principle but affords little protection against harassment by contracting parties.

To Catch A Sex Thief: The Burden Of Performance In Rape And Sexual Assault Trials, Corey Rayburn Yung

ExpressO

Despite decades of efforts to reform American rape law, prosecution and conviction rates remain low compared to similar crimes. While activists led legislatures to adopt important statutory changes for rape and sexual assault, only modest effects in the levels of sexual violence have been observed. Nonetheless, reform-minded scholars continue to focus on statutory and rule tinkering as a means to quell sexual violence.

This article argues against the commonly-held belief that the crucial factors in determining the outcome of rape trials are substantive and procedural in nature. Rather, the issues of performance, representation, and language often pre-determine the outcomes of …

Litigating Child Recruitment Before The Special Court For Sierra Leone, Noah B. Novogrodsky

San Diego International Law Journal

In May 2004, the Special Court for Sierra Leone issued a landmark decision finding that an individual may be held criminally responsible for the offense of recruiting child soldiers into armed conflict. As a hybrid tribunal established by the United Nations and the Government of Sierra Leone to try those who "bear the greatest responsibility" for serious violations of international humanitarian law committed during the country's civil war after November 1996, the Special Court is the first international criminal body to indict a person for the crime of recruiting and employing children in war. The decision in the case of …

Ambiguity Aversion And The Criminal Process, Alex Stein, Uzi Segal

Faculty Scholarship

No abstract provided.

Liberalism, Normative Expectations, And The Mechanics Of Fault, Kyron J. Huigens

Articles

No abstract provided.

Adding Fuel To The Fire: United States V. Booker And The Crack Versus Powder Cocaine Sentencing Disparity, Briton K. Nelson

University of Richmond Law Review

No abstract provided.

Summary Of Ford V. State Of Nevada, 122 Nev. Adv. Op. 36, Denise S. Balboni

Nevada Supreme Court Summaries

Appeal from jury verdict in criminal trial on grounds that prosecutors impermissibly excluded jurors based on race in violation of Batson v. Kentucky.

Summary Of Stockmeier V. Nev. Dep’T. Of Corrections Psychological Review Panel, 124 Nev. Adv. Op. No. 30, Holly Ludwig

Nevada Supreme Court Summaries

Appeal from district court’s grant of a 12(b)(5) motion to dismiss in favor of Defendant Psych Panel. District court held: (1) that Stockmeier lacked standing to assert violations of the open meeting law; (2) that prisoners cannot conduct the people’s business and therefore cannot assert open meeting law violations; and (3) that Psych Panel hearings qualify as quasi-judicial proceedings and are therefore exempt from the open meeting law.

State V. Martinez: The Boundaries Of Judicial Discretion And The Sixth Amendment Right To Trial By Jury In Arizona, Jamie C. Couche

ExpressO

Is a defendant’s Sixth Amendment right to a trial by jury violated when a sentencing judge considers factors beyond those found by a jury and then imposes a super-aggravated sentence? The Arizona Supreme Court says it is not violated so long as the fact-finding satisfies the Apprendi/Blakely progeny.

The Z-Test For Percentages: A Statistical Tool To Detect Pretextually Neutral Juror Challenges, Marvin L. Longabaugh

ExpressO

In the article, I discuss the potential use of public opinion polls to measure the discriminatory effect of certain questions in jury selection. While the laws surrounding race and gender based jury selection are known to most lawyers, there has been little scrutiny on questions that might be posed to potential jurors that are facially neutral, yet have a discriminatory impact. This article examines a number of such questions and offers a statistical test to determine whether a proposed question has, in fact, a 98% certainty of having a discriminatory effect if relied upon in jury selection.

“Murder, Pennsylvania Style”: Comparing Traditional American Homicide Law To The Statutes Of Model Penal Code Jurisdictions, David Crump

ExpressO

No abstract provided.

The Unbearable Lightness Of Batson: Mixed Motives And Discrimination In Jury Selection, Russell D. Covey

ExpressO

The Equal Protection Clause prohibits the use of peremptory challenges to exclude jurors on account of protected characteristics such as race and sex. Mixed-motive problems arise where the proponent of a strike confesses to have been motivated by a combination of proper and improper purposes. In other contexts, so-called “mixed-motive analysis,” which provides the challenged party an opportunity to prove that the “same decision” would have been made absent the improper motive, has been permitted. The United States Supreme Court has not yet ruled, however, on whether “mixed-motive” analysis is consistent with the governing framework set forth in Batson v. …

Entrapment By Numbers, Dru Stevenson

ExpressO

This essay analyzes emerging trends in entrapment law, and is the first to describe the declining numbers of reported cases that involve the entrapment defense. This phenomenon is attributed to decreasing levels of uncertainty in the rules pertaining to the defense, and to discreet procedural issues. The shifting degrees of certainty in penal rules, which have become increasingly mechanical and mathematical over time, are shown to disfavor certain defendants inherently, to the point of being a snare or source of “entrapment” themselves for these individuals. (Published in 16 J. Law & Pub. Pol’y 1 2005)

The Political Economy Of Application Fees For Indigent Criminal Defense, Wayne A. Logan, Ronald F. Wright

Scholarly Publications

In this article, we trace the origin and spread of state laws designed to make indigent criminal defendants pay, up-front, a portion of the costs of their state-appointed counsel. These co-pays, which can range from $10 to over $200, are part of the increasingly popular pay-as-you-go movement, requiring criminal defendants to defray the system costs of their prosecution and punishment.

On their face, such laws would appear to be a natural target of vigorous resistance by the defense bar. This turns out to be only half true, however, for it is often the leaders of public defense organizations, faced with …

Evolution And Denial: State Sentencing After Blakely And Booker, Steven L. Chanenson, Daniel F. Wilhelm

Working Paper Series

Justice Louis Brandeis famously described the states as laboratories where individual jurisdictions can experiment with various legal strategies. In the wake of Blakley v. Washington, and United States v. Booker those laboratories have been working overtime. Since June 2004, both state legislatures and state courts have grappled with the significance of the United States Supreme Court's treatment of the Sixth Amendment in sentencing. It is unsurprising, given the extraordinary significance and potential reach of Blakely and Booker, that this Herculean task has produced divergent results.

Although there are many potential ways to sort those results, for the purposes of these …

Adult Punishment For Juvenile Offenders: Does It Reduce Crime?, Richard E. Redding

Working Paper Series

This chapter discusses the research on the general and specific deterrent effects of transferring juveniles for trial in adult criminal court, identifies gaps in our knowledge base that require further research, discusses the circumstances under which effective deterrence may be achieved, and examines whether there are effective alternatives for achieving deterrence other than adult sanctions for serious juvenile offenders. As a backdrop to this analysis, the chapter first examines the role of public opinion in shaping the get tough policies, and how policy makers have misunderstood and perceived support for these policies.

Police Identification Procedures: A Time For Change, Kenneth Patenaude

Cardozo Public Law, Policy & Ethics Journal

The article argues that eyewitness testimony, despite its influence, is often unreliable and a leading cause of wrongful convictions. The author, Lt. Kenneth Patenaude, details his involvement with the Department of Justice in developing the NIJ Guide to improve eyewitness evidence handling. The guide provides best practices aimed at reducing misidentifications and ensuring more reliable evidence in legal proceedings.

"Why Don't You Take Another Look At Number Three?": Investigator Knowledge And Its Effects On Eyewitness Confidence And Identification Decisions, Melissa B. Russano, Jason J. Dickinson, Sarah M. Greathouse, Margaret Bull Kovera

Cardozo Public Law, Policy & Ethics Journal

The article examines the impact of investigator knowledge on eyewitness identification and confidence, highlighting the potential for bias and the importance of implementing double-blind lineup procedures to mitigate such influences. It emphasizes the need for further research and policy changes to enhance the reliability of eyewitness testimony.