Criminal Law Commons^™

Procedural Labyrinths And The Injustice Of Death: A Critique Of Death Penalty Habeas Corpus (Part One), Alan W. Clarke

University of Richmond Law Review

Habeas corpus was once a broad writ of liberty: it served to give meaning to expanding notions of due process, it forced state judicial systems to obey constitutional commands, and it made effective modern conceptions of fundamental fairness. Although a simple implement of humble origin, U.S. habeas corpus became inextricably interwoven with the substantive rights it enforced. Without a practical remedy, cutting across state boundaries and affording uniform access, the substantive rights themselves lose meaning. A right without remedy is a right without meaning. Thus, habeas corpus became an important part of the substantive rights that it enforced.

The Resurrection Of Trial By Jury In Russia, Stephen C. Thaman

All Faculty Scholarship

This article traces the genesis of the Russian jury law of July 16, 1993, and places it in the context of the criminal justice reform movement that began during the perestroika period. This article analyzes and evaluates the Jury Law on the basis of the first Russian jury trials. The purpose of this article is to isolate certain problem areas and pose questions, which must be answered in the future.

Much of the material for this paper results from the author’s personal observation of eleven of the first fourteen jury trials and parts of four more trials. The author also …

Trial By Jury And The Constitutional Rights Of The Accused In Russia, Stephen C. Thaman

All Faculty Scholarship

This article discusses the Russian criminal justice system’s transformation from the unjust Soviet system and the introduction of trial by jury. It specifically addresses the role of supplementary investigations in the new adversary procedure and the newly introduced privilege against self-incrimination. The author concludes that even though reforms have improved the Russian criminal justice system, elements of the Soviet system, such as supplementary investigations, remain, undermining the purpose of the new system.

Myths And Principles Of Federalization, Rory K. Little

Faculty Scholarship

No abstract provided.

Self-Defense In Colorado, H. Patrick Furman

Publications

No abstract provided.

Let's Try A Small Claims Calendar For The U.S. Courts, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Youth Justice In A Unified Court: Response To Critics Of Juvenile Court Abolition, Janet Ainsworth

Faculty Articles

In this article, Professor Ainsworth argues that a unified criminal justice system is preferable to our present two-tiered adult-juvenile court system. In fact, she contends that the cultural and ideological assumptions that underpin the current two-tiered justice system not only engender many of the serious shortcomings of the juvenile justice system, but also serve to exacerbate the very policies and practices of the adult criminal justice system that make it so abhorrent to defenders of the juvenile court. Critics of juvenile court abolitionists thus miss the point when they argue that juveniles would be worse off than they are at …

The Romance Of Revenge: An Alternative History Of Jeffrey Dahmer's Trial, Samuel R. Gross

Articles

On Feb. 17, 1992, Jeffrey Dahmer was sentenced to fifteen consecutive terms of life imprisonment for killing and dismembering fifteen young men and boys. Dahmer had been arrested six months earlier, on July 22, 1991. On Jan. 13 he pled guilty to the fifteen murder counts against him, leaving open only the issue of his sanity. Jury selection began two weeks later, and the trial proper started on Jan. 30. The jury heard two weeks of horrifying testimony about murder, mutilation and necrophilia; they deliberated for five hours before finding that Dahmer was sane when he committed thos crimes. After …

Proportionality In Non-Capital Sentencing: The Supreme Court's Tortured Approach To Cruel And Unusual Punishment, Steven P. Grossman

All Faculty Scholarship

This Article examines the Supreme Court's treatment of the Eighth Amendment with respect to claims of excessive prison sentences. Specifically, it addresses the issue of whether and to what degree the Eighth Amendment requires that a punishment not be disproportionate to the crime. In analyzing all of the modern holdings of the Court in this area, this Article finds significant fault with each. The result of this series of flawed opinions from the Supreme Court is that the state of the law with respect to proportionality in sentencing is confused, and what law can be discerned rests on weak foundations. …

The Other Dimension Of Law, Pierre Legendre

Cardozo Law Review

What kind of a questioning would make it possible for psychoanalysis to become theoretically useful for jurists? How could such a questioning have an effect on the practice of law? In the same measure, is it theoretically plausible for psychoanalysts, attached as they are to their own casuistry, to interrogate the law? What must be recognized from the start, if this questioning is to be more than superficial, is that the intellectual and social dogmas of today are obstacles to the liberty of thought [esprit].

Intellectual Coherence In An Evidence Code, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The Federal Rules of Evidence (Federal Rules or Rules) were created in large part to promote uniformity and predictability in federal trials by providing a relatively instructive guide for judges and lawyers concerning the admissibility of evidence. As with any codification, success in this respect requires, among other things, that there be a considerable degree of intellectual coherence among the code's various provisions. The Federal Rules fall short of intellectual coherence in a number of areas. They contain contradictory and inconsistent mandates that do not make theoretical sense and therefore accord the trial judge almost unlimited discretion in these areas. …

Cooperating Clients, Daniel Richman

Faculty Scholarship

Indicted on serious narcotics charges, Jose Lopez retained Barry Tarlow to “vigorously defend and try the case.” Tarlow was up to the task but warned Lopez that it was “his general policy not to represent clients in negotiations with the government concerning cooperation,” and that he did not plan to make any exception for Lopez. As Tarlow later explained, he found such negotiations “personally[,] morally and ethically offensive.” This arrangement suited Lopez just fine, until he wavered in his resolution. Encouraged by a co-defendant, worried about his children, and hoping to obtain an early release from prison …

The Invisible Cupola: From Casual To Collective Attribution In Ecological Liability, Gunther Teubner

Cardozo Law Review

When I speak about the cupola, it is not Brunelleschi's architectural masterpiece crowning the Florentine duomo that appears before my eyes. Rather, I see the ugly architecture of organized crime, the brutal supersecret "cupola" on top of the Mafia's hierarchy which overshadows social life in Italy. Does this cupola exist or not? Over the recent years, the Mafia's cupola has been the object of a bitter struggle between Italian judges. While the lower courts have been sending numerous mafiosi to prison because they were part of the invisible cupola controlling "tutti i grandi delitti," the court of the next instance …

Testing Penry And Its Progeny , Deborah W. Denno

Faculty Scholarship

In Penry v. Lynaugh, the United States Supreme Court held that the Texas death penalty statute was applied unconstitutionally because the trial court gave no instructions allowing the jury to “consider and give effect to” the defendant's mitigating evidence of organic brain damage, moderate retardation, and disadvantaged background. The Court considered these mitigating factors relevant because of society's steadfast belief in the lesser culpability of defendants whose criminal acts are due to a disadvantaged background, or to emotional and mental disorders. The jury must have full consideration of such evidence in order to give its “reasoned moral response” to the …

The Criminal Defense Lawyer's Reliance On Bias And Prejudice, Eva Nilsen

Faculty Scholarship

This Article is divided into three parts. Part I examines both the many contexts in which criminal defense lawyers and clinical students encounter bias and prejudice,¹² and the commonly-raised objections to its exploitation. Part II looks at the way the tactical use of bias relates to a lawyer's duty of zealous advocacy. Here, the Article focuses on whether existing ethics rules provide guidance for a lawyer's use of bias and whether proposed rules aimed at eliminating such advocacy would improve or diminish justice. This article argues against such efforts because they impinge on legitimate lawyering, and they may distract …

Prosecutors And Domestic Violence: Local Leadership Makes A Difference, Janet E. Findlater, Dawn Van Hoek

Law Faculty Research Publications

No abstract provided.

Prosecution Discovery In The U.S.: A Balancing Perspective, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In R. v. Stinchcombe, the Supreme Court of Canada held that the Crown has a legal duty to disclose all relevant information, exculpatory and inculpatory, to a defendant charged with an indictable offence. Left undiscussed by the decision, and by Canadian decisional and statutory law generally, is the scope of discovery against the defence. A description and analysis of the American experience in this regard may be of interest to Canadian practitioners and academics.

Prior to the middle of this century, defence attorneys and prosecutors in the United States depended on preliminary hearings and informal exchanges to obtain information about …

Eliminating Double Talk From The Law Of Double Jeopardy, Eli J. Richardson

Florida State University Law Review

No abstract provided.

Factors For Reasonable Suspicion: When Black And Poor Means Stopped And Frisked, David A. Harris

Indiana Law Journal

No abstract provided.

Double Jeopardy, The Federal Sentencing Guidelines, And The Subsequent-Prosecution Dilemma, Elizabeth T. Lear

UF Law Faculty Publications

The choice to embrace a real-offense regime probably constitutes the single most controversial decision made by the Federal Sentencing Commission in drafting the Federal Sentencing Guidelines ("Guidelines"). Real-offense sentencing bases punishment on a defendant's actual conduct as opposed to the offense of conviction. The Guidelines sweep a variety of factors into the sentencing inquiry, including criminal offenses for which no conviction has been obtained. Under the Guidelines, therefore, prosecutorial charging decisions and even verdicts of acquittal after jury trial may have little impact at sentencing.

Long before the adoption of the Guidelines, courts bent on rationalizing the real-offense regime devised …

Words And Sentences: Penalty Enhancement For Hate Crimes, Shirley S. Abrahamson, Susan Craighead, Daniel N. Abrahamson

University of Arkansas at Little Rock Law Review

No abstract provided.

The Partial Republican, John O. Mcginnis

Articles

No abstract provided.

Felony-Murder Doctrine Through The Federal Looking Glass, Henry S. Noyes

Indiana Law Journal

No abstract provided.

Law, Culture, And Harassment, Anita Bernstein

Faculty Scholarship

No abstract provided.

Never Again? The "Concentration Camps" In Bosnia-Herzegovina: A Legal Analysis Of Human Rights Abuses, Alan C. Laifer

Cardozo Journal of International and Comparative Law

The note draws parallels between the atrocities committed during the Holocaust and the ongoing violence in Bosnia, emphasizing the need for international accountability. It advocates for the establishment of a War Crimes Tribunal, modeled after the Nuremberg Tribunal, to prosecute individuals responsible for genocide and other war crimes. The analysis critiques the international community’s inaction and underscores the importance of upholding international law to prevent future atrocities.

The Meaning Of Daubert And What That Means For Forensic Science, Randolph N. Jonakait

Cardozo Law Review

Daubert's effect on forensic science is unclear because the opinion is unclear. The Daubert Court did start blazing a useful path by stating that before scientific testimony is admitted, the trial court must be convinced that "the reasoning or methodology underlying the testimony is scientifically valid and ... that [the] reasoning or methodology properly can be applied to the facts in issue." But the Court's trailblazing was incomplete and often misleading.

Daubert: Interpreting The Federal Rules Of Evidence, Paul C. Giannelli

Cardozo Law Review

In 1992 Judge Becker and Professor Orenstein referred to the Frye issue - the admissibility of novel scientific evidence-as the "most controversial and important unresolved question" in the Federal Rules of Evidence. Indeed, during the prior decade the federal courts had battled over the issue, as had their state counterparts. Similarly, text writers and law review commentators vigorously disagreed about the proper standard for admitting scientific evidence. While one ABA report on the Federal Rules explored the Frye issue and concluded that it "is not clear that any standard would produce agreement at the moment," another report cited it as …

Impeachment By Conviction Evidence: Judicial Discretion And The Politics Of Rule 609, Victor Gold

Cardozo Law Review

No provision of the Federal Rules of Evidence has sparked more controversy than Rule 609, which deals with the admissibility of convictions to impeach a witness. When first proposed, the provision was the subject of fierce debate, sparking repeated revision during its drafting and while it was under consideration by Congress. Ultimately, no one side in this legislative battle prevailed entirely; the Rule strikes a compromise between sharply conflicting policies. The text of Rule 609, incorporating no less than three balancing tests, two references to fairness, one to justice, and several other undefined terms, leaves the task of resolving the …

The Next Step After Daubert: Developing A Similarly Epistemological Approach To Ensuring The Reliability Of Nonscientific Expert Testimony, Edward J. Imwinkelried

Cardozo Law Review

On June 28, 1993, after much fanfare, the United States Supreme Court rendered its decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. The decision was not only preceded by intense media attention; the decision was also immediately followed by a massive-and growing-volume of commentary. As is usually true with landmark decisions, it is imperative to identify what the Court decided and what the Court left unresolved.

Mihas V. United States, Jennifer Fox

University of the District of Columbia Law Review

No abstract provided.