Criminal Law Commons^™

Deterrence And Crime Results, Marcelo Ferrante

ExpressO

This article offers a comprehensive study of the merits of the legal practice of punishing accomplished crimes more severely than attempted crimes all other things being equal (Differential Punishment) vis-à-vis the alternative of punishing them with equal sanctions (Equal Punishment). Unlike the overwhelming majority of the literature on the issue—which focuses on which practice better mirrors the offenders’ relative moral deserts—the article evaluates both practices from a consequentialist, deterrence-based point of view. In particular, it shows first that traditional economic theories of the criminal law should yield the conclusion that differential punishment is not superior to equal punishment. The few …

A Meaningful Criminal Justice System For The Future—An English Perspective, Baroness Scotland Of Asthal Qc

Mercer Law Review

The Fourth Annual John E. James Distinguished Lecture
Walter F. George School of Law
Mercer University
Macon, Georgia, September 21, 2004

Judge-Jury Agreement In Criminal Cases: A Partial Replication Of Kalven And Zeisel's The American Jury, Theodore Eisenberg, Paula L. Hannaford-Agor, Valerie P. Hans, Nicole L. Waters, G. Thomas Munsterman, Stewart J. Schwab, Martin T. Wells

Cornell Law Faculty Publications

This study uses a new criminal case data set to partially replicate Kalven and Zeisel's classic study of judge-jury agreement. The data show essentially the same rate of judge-jury agreement as did Kalven and Zeisel for cases tried almost 50 years ago. This study also explores judge-jury agreement as a function of evidentiary strength (as reported by both judges and juries), evidentiary complexity (as reported by both judges and juries), legal complexity (as reported by judges), and locale. Regardless of which adjudicator's view of evidentiary strength is used, judges tend to convict more than juries in cases of "middle" evidentiary …

The Innocence Protection Act Of 2004: A Small Step Forward And A Framework For Larger Reforms, Ronald Weich

All Faculty Scholarship

Passage of the Innocence Protection Act in the closing days of the 108th Congress was a watershed moment. To be sure, the bill that finally became law was a shadow of the more ambitious criminal justice reforms first championed five years earlier by Senator Pat Leahy, Congressman Bill Delahunt and others. But the enactment of legislation designed to strengthen — not weaken — procedural protections for death row inmates was rich in symbolic importance and promise.

Writing in the April 2001 issue of THE CHAMPION (Innocence Protection Act: Death Penalty Reform on the Horizon), I said optimistically: "The criminal justice …

"How Do You Plead, Guilty Or Not Guilty?": Does The Plea Inquiry Violate The Defendant's Right To Silence?, Robert F. Cochran Jr.

Cardozo Law Review

No abstract provided.

Organizational Misconduct: Beyond The Principal-Agent Model, Kimberly D. Krawiec

ExpressO

This article demonstrates that, at least since the adoption of the Organizational Sentencing Guidelines in 1991, the United States legal regime has been moving away from a system of strict vicarious liability toward a system of duty-based organizational liability. Under this system, organizational liability for agent misconduct is dependant on whether or not the organization has exercised due care to avoid the harm in question, rather than under traditional agency principles of respondeat superior. Courts and agencies typically evaluate the level of care exercised by the organization by inquiring whether the organization had in place internal compliance structures ostensibly designed …

Victims And Perpetrators: An Argument For Comparative Liability In Criminal Law, Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

This article challenges the legal rule according to which the victim’s conduct is irrelevant to the determination of the perpetrator’s criminal liability. The author attacks this rule from both positive and normative perspectives, and argues that criminal law should incorporate an affirmative defense of comparative liability. This defense would fully or partially exculpate the defendant if the victim by his own acts has lost or reduced his right not to be harmed.

Part I tests the descriptive accuracy of the proposition that the perpetrator’s liability does not depend on the conduct of the victim. Criminological and victimological studies strongly suggest …

What Do Juvenile Offenders Know About Being Tried As Adults? Implications For Deterrence , Richard E. Redding

Working Paper Series

An underlying assumption in the nationwide policy shift toward transferring more juveniles to criminal court has been the belief that stricter, adult sentences will act as either a specific or general deterrent to juvenile crime. With respect to general deterrence - whether transfer laws deter would-be offenders from committing crimes - it is important to examine whether juveniles know about transfer laws, whether this knowledge deters criminal behavior, and whether juveniles believe the laws will be enforced against them. The current study is one of the first to examine juveniles' knowledge and perceptions of transfer laws and criminal sanctions. We …

Anagrammatics Of Violence: The Benjaminian Ground Of Homo Sacer, Anselm Haverkamp

Cardozo Law Review

No abstract provided.

Since When Is Dicta Enough To Trump Fourth Amendment Rights? The Aftermath Of Florida V. J.L., Melanie D. Wilson

Scholarly Articles

Unfortunately for individual liberty, and the inestimable right to personal security, the Supreme Court's extraneous language in its otherwise, well-reasoned decision in Florida v. J.L., and the lower federal courts' interpretation of that extraneous language, have jeopardized the Constitutional right to be free from capricious stops and frivolous frisks, both of which necessarily intrude on the sanctity of the person and sometimes "inflict great indignity and arouse strong resentment . . . ." When read logically and narrowly, the J.L. decision holds that an anonymous telephone tip, alone, does not give law enforcement a sufficient legal basis to stop or …

The Unconstitutionality Of "Hold Until Cleared": Reexamining Material Witness Detentions In The Wake Of The September 11th Dragnet, Ricardo J. Bascuas

Articles

No abstract provided.

Faith-Based Miranda: Why The New Missouri V. Seibert Police Bad Faith Test Is A Terrible Idea, Joelle A. Moreno

Faculty Publications

No abstract provided.

The Convention On Cybercrime: A Harmonized Implementation Of International Penal Law: What Prospects For Procedural Due Process?, 23 J. Marshall J. Computer & Info. L. 329 (2005), Miriam F. Miquelon-Weismann

UIC John Marshall Journal of Information Technology & Privacy Law

The CoE Convention on cybercrime provides a treaty-based framework that imposes on the participating nations the obligation to enact legislation criminalizing certain conduct related to computer systems, create investigative procedures and ensure their availability to domestic law enforcement authorities to investigate cybercrime offenses, including procedures to obtain electronic evidence in all of its forms and create a regime of broad international cooperation, including assistance in extradition of fugitives sought for crimes identified under the CoE Convention. Since there is no internationally recognized legal definition of computer crime, this article briefly presents the generally recognized categories of cybercrime and then proceeds …

Strategies For Challenging Police Drug Jargon Testimony, Joelle A. Moreno

Faculty Publications

No abstract provided.

Contaminating The Verdict: The Problem Of Juror Misconduct, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This article describes the myriad ways in which misconduct by jurors can contaminate a trial and verdict and the ability of courts to remedy such misconduct. Part II examines the case law in which criminal defendants have challenged their convictions on the basis of juror misconduct. Defendants have claimed that jurors were influenced by external contacts with third parties, exposed to extraneous, non-evidentiary information, engaged in contrived experiments and improper reenactments in the jury room, made dishonest and misleading statements during jury selection, engaged in conduct demonstrating bias and prejudgment, suffered from physical and mental impairments, engaged in pre-deliberation discussions …

Summary Of Garcia V. State , Justin L. Carley

Nevada Supreme Court Summaries

Ramon Garcia appealed his convictions for: (1) burglary while in possession of a firearm, (2) robbery with the use of a deadly weapon, (3) first-degree kidnapping, 4. conspiracy to commit burglary, (5) another burglary while in the possession of a firearm, 6. conspiracy to commit robbery, (7) attempted robbery with the use of a deadly weapon, and 8. false imprisonment. Garcia argued that: (1) the jury instruction on false imprisonment was improper, (2). the state presented insufficient evidence to support a verdict on kidnapping and false imprisonment, (3) the district court erroneously failed to hold a hearing on his motion …

Private Military Contractor Liability And Accountability After Abu Ghraib, 38 J. Marshall L. Rev. 1237 (2005), Mark W. Bina

UIC Law Review

No abstract provided.

American Courts Are Drowning In The "Gene Pool": Excavating The Slippery Slope Mechanisms Behind Judicial Endorsement Of Dna Databases, 39 J. Marshall L. Rev. 115 (2005), Meghan Riley

UIC Law Review

No abstract provided.

Summary Of State V. District Court (Jackson), 121 Nev. Adv. Op. 4, Kenneth E. Hogan

Nevada Supreme Court Summaries

Petitioner, seeking a writ of mandamus, contended that the district court abused its discretion by awarding defendant credit against her prison sentence for time served on house arrest as a condition of bail.

Toward True Shalom Bayit: Acknowledging Domestic Abuse In The Jewish Community, Lydia M. Belzer

Cardozo Journal of Equal Rights & Social Justice

The article examines the intersection of domestic abuse and Jewish law, focusing on how religious teachings, such as the concept of shalom bayit (peace in the home), are often misused to justify remaining in abusive relationships. It highlights the barriers women face in obtaining a religious divorce (get) and the stigma associated with domestic abuse (shonda), which discourages victims from seeking help. The analysis critiques the misuse of religious laws and advocates for reinterpretation to prioritize victims' safety and well-being. The article emphasizes the need for education, awareness, and improved support systems within the Jewish community to address these issues …

Beyond Bandaids: A Proposal For Reconfiguring Federal Sentencing After Booker, Frank O. Bowman Iii

Faculty Publications

This Article proposes a simplified sentencing table consisting of nine base sentencing ranges, each subdivided into three sub-ranges. The base sentencing range would be determined by combining offense facts found by a jury or admitted in a plea with the defendant's criminal history. A defendant's placement in the sub-ranges would be determined by post-conviction judicial findings of sentencing factors. No upward departures from the base sentencing range would be permissible, but defendants might be sentenced below the low end of the base sentencing range as a result of an acceptance of responsibility credit or due to a downward departure motion. …

The Crime Victim's Right To Attend The Trial: The Reascendant National Consensus, Douglas Evan Beloof, Paul Cassell

Utah Law Faculty Scholarship

This article contends that crime victims should have an unequivocal right to attend a criminal trial, even in cases where they will be called as witnesses. A victim's right to attend trial has strong historical support, as at common law victims attended trial as private prosecutors. More recently, crime victims' rights legislation passed in the majority of states recognizes the victim's right to attend. Nothing in the Constitution prevents victims from attending trial, and strong public policy reasons support such an approach. Observing the trial can have import therapeutic and other benefits for victims. Any risk of prejudice to a …

The Myth Of The Gladiator And Law Students' Negotiation Styles, Melissa L. Nelken

Cardozo Journal of Conflict Resolution

"Shark." "Hired gun." The popular view is that lawyers are, by and large, cut-throat competitors who take the ethical obligation of zealous advocacy on behalf of their clients to the extreme, heedless of the cost to others or to society as a whole. The adversarial system (with its winners and losers), law school teaching, and the portrayal of lawyers in popular media, all feed this stereotype. The focus on litigation promotes misperceptions about what most lawyers actually do. Lawyers make deals and resolve virtually all litigated matters short of trial, often through negotiation. Studies of lawyers' behavior in negotiation over …

Difficult Times In Kentucky Corrections—Aftershocks Of A "Tough On Crime" Philosophy, Robert G. Lawson

Law Faculty Scholarly Articles

The objective of this article is to cast some light on corrections system problems brought on by elevated (and possibly unnecessary) levels of incarceration, and especially on problems that trouble the Kentucky corrections system and threaten to undermine the effectiveness of the state's justice system. Part II describes how the country came to embrace sentencing policies and practices capable of producing "a penal system of a severity unmatched in the Western world.” Part III describes Kentucky's embrace of equally harsh sentencing policies and practices and the inmate population explosion that has occurred as a direct result of those policies and …

How Juries Get It Wrong - Anatomy Of The Detroit Terror Case, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This Article describes the background and trial of the four defendants in the so-called Detroit “Sleeper Cell” terrorist prosecution. It examines the evidence relied on by the jury to reach its verdict, particularly the testimony of a key turncoat witness who accused the defendants of participation in a terrorist conspiracy. Part III examines how the jury's search for truth was corrupted by false, misleading, and incomplete proof. It identifies several extrinsic sources of jury error including suppressed evidence, dishonest and unreliable testimony, partisan experts, coaching, obstructed cross-examination, and inflammatory arguments. Finally, with the Detroit terrorist trial as the model, Part …

Plea Bargaining At The International Criminal Tribunal For The Former Yugoslavia, Ralph Henham, Mark Drumbl

Scholarly Articles

The International Criminal Tribunal for the former Yugoslavia (ICTY) increasingly has turned to plea bargains to resolve the cases before it. A number of factors motor this trend. One is administrative: the ICTY has been subject to considerable pressure from the United Nations Security Council and donor states to accelerate its work. Another is the desire to obtain acknowledgements of responsibility from perpetrators. Moreover, there is concern that, as time passes, the memories of witnesses dim. The rigours of direct and cross-examination may retraumatise those who have survived mass atrocity. ICTY judges also have expressed their understanding that guilty pleas …

Summary Of Carter V. State, 121 Nev. Adv. Op. 75, Collin Webster

Nevada Supreme Court Summaries

Appeal from a judgment of conviction, entered after jury verdict, for one count of attempted sexual assault.

Targeting Legal Advice, Peter J. Henning

Law Faculty Research Publications

No abstract provided.

Evidence—Sixth Amendment And The Confrontation Clause—Testimonial Trumps Reliable: The United States Supreme Court Reconsiders Its Approach To The Confrontation Clause. Crawford V. Washington, 541 U.S. 36 (2004)., Kristen Sluyter

University of Arkansas at Little Rock Law Review

No abstract provided.

Deviance, Due Process, And The False Promise Of Federal Rule Of Evidence 403, Aviva A. Orenstein

Articles by Maurer Faculty

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413 and 414 (concerning rape and child abuse, respectively) allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity. Courts have rejected due process challenges to the new rules, holding that Federal Rule of Evidence 403 serves as a check on any fairness concerns. However, courts' application of Rule 403 in cases involving these sexual propensity rules is troubling. Relying on the legislative history of the new rules and announcing a presumption of admissibility, courts have forsaken the traditional operation of …