Criminal Law Commons^™

Brief Of Criminal Law Scholars As Amici Curiae In Support Of Petitioner, Ira P. Robbins

Amicus Briefs & Court Filings

Amici are law professors who teach and research criminal law and procedure. They have no personal interests in this case. Their sole interest is in the protection and preservation of the constitutional rights of criminal defendants.

Police Shootings After Torres V. Madrid: Suspects Eluding Capture Are Seized Under Fourth Amendment, Travis R. Thickstun

The Scholar: St. Mary's Law Review on Race and Social Justice

In Torres v. Madrid, the Supreme Court held that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued. Because this new rule brings even the slightest touches within the Fourth Amendment’s protections against unreasonable searches and seizures, it allows more claims against police officers for violations of the Fourth Amendment’s prohibition on unreasonable searches and seizures.

Until the Torres decision though, only when someone shot by police was actually taken into custody could that person sue the police officers …

Urgensi Memahami Arbitrase Bagi Pemangku Kepentingan Dunia Bisnis Di Indonesia, Bambang Hariyanto, Saptarini Saptarini

Jurnal Hukum & Pembangunan

Abstract The resolution of business disputes through arbitration forums is increasingly favored by the majority of business actors in Indonesia. One indication of this is the growing number of business actors, both from the private sector and state-owned enterprises, who include arbitration agreements as dispute clauses in their contracts. Arbitration has even attracted the interest of MSMEs (Micro, Small, and Medium Enterprises) as a forum to resolve their business disputes. This phenomenon ultimately highlighted the urgency for stakeholders in the business world to understand arbitration. Using normative juridical methods, this article contained a series of analyses of primary materials, including …

Inmate Assistance Programs, Tim Friehe, Murat C. Mungan

Faculty Scholarship

This paper analyzes the deterrence implications of different inmate assistance programs (IAPs), carefully distinguishing between deterrence of first offenses and recidivism. All IAPs considered in our model reduce recidivism, and we identify IAPs that also reduce the first offense rate. However, IAPs which increase work opportunities, improve the reintegration of exiting inmates, and moderate individual’s self-control issues may lower the deterrence of first offenses, if this possibility is not adequately anticipated when designing these IAPs.

Administrative Arrest Warrants: Armed Encounters Outside The Judicial Process, Meg Penrose

Faculty Scholarship

This Article considers three related questions. First, is a person “seized” under the Fourth Amendment when law enforcement restricts a person’s movements in their home and limits their ability to leave or go about their business? Second, does the answer to this seizure inquiry turn on the person’s citizenship status? And third, how do lawyers ensure that courts discard bad law? This last question is not a qualitative assessment— with good and bad law being tied to one’s legal ideology. Rather, certain legal holdings, dating back over half a century, have been whittled away if not entirely eroded. When this …

Indiana Law Supporting Newly Established Indiana Innocence Project, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

Law students from the Indiana University Maurer School of Law will have the opportunity to help exonerate wrongfully convicted Hoosiers through the newly established Indiana Innocence Project, which officially launched Saturday (Aug. 17).

Established in association with the national Innocence Project—which has helped free more than 240 wrongfully convicted prisoners since 1992—the Indiana Innocence Project (INIP) has been made possible through the support of the Herbert Simon Family Foundation, along with the Law School and IU’s Department of Criminal Justice.

The Indiana Innocence Project will screen and investigate cases with meritorious innocence claims, secure DNA testing when biological evidence …

University Of The District Of Columbia Law Review, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.

The Politics Of Possession And Gun Violence: The Bruen Decision's Impact On Firearm Regulation, Jacob Butler

JCLC Online

States struggle to implement new firearms policies because they are

limited by two major forces: the political feasibility of passing new firearms

legislation and an increasingly broad and individualized Second Amendment

right. Due to this conflict, states continually return to one of few

constitutional yet politically popular methods of gun control: enacting

possession-based firearms laws. These laws are largely ineffective at

reducing gun violence.

In the 2022 Supreme Court decision New York Rifle and Pistol

Association v. Bruen, the Court further expanded the scope of the Second

Amendment to protect the individual’s right to bear arms outside of the …

Justice Theater In The Criminal Law Curriculum, Gregory Brazeal

Cardozo Law Review

For the last half-century, law students have been required to take a criminal law course that ostensibly trains them to think critically about the justifications for criminal punishment. The same students have then gone on to serve as central actors in a system of mass incarceration that millions of Americans today view as profoundly unjust.

How did this happen?

A number of legal scholars, notably including Alice Ristroph in her 2020 Article “The Curriculum of the Carceral State,” have argued that the traditional criminal law curriculum has played a role in creating and reproducing the practices of mass incarceration. This …

Is Grammar Religious Exercise? Addressing Transgender Students And The Limits Of The Complicity Doctrine, Saul R. Thorkelson

Cardozo Law Review

May teachers reject transgender students’ names and pronouns on religious grounds? Across the United States, many schools and universities have adopted policies calling on staff to use all students’ designated first names and gender-congruent pronouns. A number of conservative Christian teachers have claimed that they cannot address transgender students in this way without violating their religious beliefs. In several cases, after unsuccessful attempts by administrators to accommodate these objections, teachers who were subject to employment consequences have brought lawsuits alleging violation of their religious liberty and free speech rights.

This Note employs two recent cases to examine courts’ reasoning on …

Amicus Brief Of Legal Scholars Lee Kovarsky Et Al. In Support Of Petitioner, Ira P. Robbins

Amicus Briefs & Court Filings

QUESTION PRESENTED: Whether a second-in-time habeas claim filed while an appeal from the judgment on an initial habeas claim is still pending counts as a second or successive habeas petition under 28 U.S.C. § 2244(b)

INTEREST OF AMICI CURIAE: Amici curiae are law professors and legal scholars who study federal post-conviction law and civil procedure. Amici curiae have no personal interest in the outcome of this case. They all share an interest in seeing habeas law applied in a way that ensures the just and timely adjudication of claims while preserving the traditional and intended operation of the Federal Rules …

The Voice Of Criminal Law, Michelle Madden Dempsey

Faculty Publications

In whose voice does the criminal law speak, and why does it matter? Miriam Gur-Arye argues that the answer to the first question depends on the kind of duty violated by the crime at issue. In some cases (say, election fraud or tax evasion), the criminal law speaks in the voice of the polity—but in other cases (say, murder or rape), it speaks in the voice of human beings. Or so argues Gur-Ayre. Not surprisingly, perhaps, a lot depends on what one means by the voice of the criminal law. In this paper, I defend two related arguments. First, the …

Presidents, Congress, And Classified Information: The Constitutional Limitations And Processes Required To Declassify Information, Nick Dunard

Catholic University Law Review

On August 8 2022, the Federal Bureau of Investigation executed a search warrant at former President Donald Trump’s Mar-a-Lago Resort. The search uncovered hundreds of documents bearing various classification and governmental markings. On June 8, 2023, Trump was indicted in the Southern District of Florida on thirty-seven counts of unlawful retention of national defense information. Almost immediately after the search, the former President and his allies advanced a theory that Trump’s retention of classified documents was permissible because he had declassified the documents before leaving office on January 20, 2021. The former President has repeatedly mentioned these arguments in both …

Sotomayor Cites Maurer Faculty Member In Scotus’ Decline To Hear Alabama Bite Mark Case, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

The case of an Alabama man convicted of murdering his wife in 1985 will not be reviewed by the U.S. Supreme Court, despite evidence that, nearly 40 years later, has been “wholly discredited.”

The Supreme Court denied certiorari in the case of McCrory v. Alabama, but Justice Sonia Sotomayor cited research from Indiana University Maurer School of Law Professor Valena Beety in her concurring agreement with the court’s decision.

Charles M. McCrory was convicted for the murder of his wife, Julie Bonds, based in large part on expert testimony from an odontologist who matched McCrory’s teeth to two bite marks …

Criminal Confrontation Of The Crime Committed Via An Automated Robot In Libyan And Emirati Law, . Mashaallah Alzwae

Journal of Police and Legal Sciences

Today's world is witnessing an important development in telecommunications, information technology and computers that has resulted in what are known as automated robots as one of the most important applications of artificial intelligence and has increased reliance on them in various areas of life for the importance of the services they provide to humanity. However, such robots may be used to commit an offence and the study therefore aims to determine the effectiveness of legal texts in the face of the offence from which they may occur. The study required an analytical and comparative approach by analysing and comparing the …

The Needless Search For A Founding-Era "Hearsay" Definition, Jeffrey Bellin

Faculty Publications

Modern Confrontation Clause doctrine permits only unconfronted “out-of-court statements that would have been admissible in a criminal case at the time of the founding.” To operationalize this concept, the Supreme Court identifies “testimonial hearsay” as the Clause’s primary concern. Its opinions regularly dive into the historical record to refine what counts as “testimonial” but ignore that record in defining “hearsay.” This omission cannot last. Cases in the lower courts, and one on the Court’s recent docket, concern testimonial but (arguably) non-hearsay statements. And while confrontation jurisprudence is supposed to be tied to founding-era evidence law, the “hearsay” definition, casually referenced …

When (And Where) Is A Crime A Crime? “Double Criminality” As A Principle Of Fundamental Justice, Robert J. Currie

Articles, Book Chapters, & Popular Press

The idea that crime crosses borders is fast becoming ordinary, even old hat, particularly in an age of online crime such as ransomware attacks, cyber-extortion and the like. As we have become more geographically mobile, however, it is increasingly common for people to have engaged in criminal conduct in one state1 but then seek to exercise legal rights, or face legal entanglements, in others. Legal questions can then arise about what effect should be given by one state—in this article, Canada—to an individual’s conduct that was, or is alleged to have been, a crime in a foreign state. The inquiry …

The Dark Plea: One Of The Most Coercive Abuses Of Power Permitted In The Criminal Justice System, Michael P. Donnelly

Et Cetera

Most prosecutions in our criminal justice system are resolved by defendants entering ostensibly knowing and intelligent guilty pleas—often following negotiations with the state—before trial. But during my time as a trial judge, I encountered a different type of guilty plea, procured by the state when an already convicted offender sought to clear his or her name through an application for a new trial based on newly discovered evidence. I believe the “Dark Pleas” secured in these circumstances are one of the greatest abuses of power permitted in the criminal justice process.

This article sets down in writing a speech I …

Law School News: Professor Tara I. Allen Announced As Federal Public Defender 6-5-2024, Helga Melgar

Life of the Law School (1993- )

No abstract provided.

Confronting Algorithms: Conscience Catching In The Criminal Trial And Beyond, Sherman J. Clark

University of Michigan Journal of Law Reform

Using the question of how to treat algorithmic evidence under the Confrontation Clause as an entry point, I argue that the use of AI in ethically salient situations presents a risk. It may cause us to avoid confronting our own responsibility. This matters because facing up to what we do, including what we delegate, can help us grow and thrive. Bearing responsibility can help us nurture vital capacities, including forms of empathy, honesty, and dignity. In the language of ethics, these are eudaimonist virtues—traits and capacities that can help us live well and fully. We should thus find ways of …

Can Too Much Clarity Cause Confusion? A Case Study Of Mccalop V. State, Sutton M. Eggena

Mercer Law Review

In criminal trials, few elements wield as much influence over the outcome as expert testimony. Expert testimony serves as the bridge between complex subject matter and the understanding of lay jurors, often occupying a pivotal position in the pursuit of justice. Indeed, expert testimony can be the lynchpin on which a jury’s verdict turns. Picture a courtroom filled with jurors, each presumed to lack a deep understanding of the intricate dynamics of domestic abuse and the profound effects of battered person syndrome on individuals trapped in violent relationships. In pursuit of justice, these jurors lean on a singular source—an expert …

Proprietors Beware: Recent Changes In Negligent Security Cases Involving Third-Party Criminal Acts And The State Of The Law Moving Forward After The Supreme Court Of Georgia’S Most Recent Decision In Georgia Cvs V. Carmichael, Blake Williamson

Mercer Law Review

The burgeoning surge in criminal activity within the United States has precipitated a corresponding increase in legal actions aimed at ascertaining the liability of business proprietors for crimes that transpire on their premises. Although the legal and factual questions surrounding the attribution of liability for the criminal acts of third parties often prove intricate, the crux of the matter remains consistent with that encountered in other premises liability actions—namely, did the proprietor possess superior knowledge of the danger that injured the plaintiff?

Just Me, Myself, And I: Georgia Trial Courts May Consider Pro Se Motions Filed By Represented Criminal Defendants, Mckayla A. Doss

Mercer Law Review

For decades, Georgia’s trial courts have applied the absolute rule that pro se motions filed by represented (or presumably represented) criminal defendants were a legal nullity. In essence, hybrid representation was not permitted—legal representation precluded criminal defendants from acting as “co-counsel” or filing their own pro se motions.The application of this absolute rule substantially affected the time-sensitive period that follows a criminal conviction, as defendants in Georgia have a limited period of time to file a notice of appeal or a motion for new trial before the window of direct appeal closes. Failure to file these motions results in the …

The Needless Search For A Founding-Era "Hearsay" Definition, Jeffrey Bellin

University of Michigan Journal of Law Reform

Modern Confrontation Clause doctrine permits only unconfronted “out-of-court statements that would have been admissible in a criminal case at the time of the founding.” To operationalize this concept, the Supreme Court identifies “testimonial hearsay” as the Clause’s primary concern. Its opinions regularly dive into the historical record to refine what counts as “testimonial” but ignore that record in defining “hearsay.” This omission cannot last. Cases in the lower courts, and one on the Court’s recent docket, concern testimonial but (arguably) non-hearsay statements. And while confrontation jurisprudence is supposed to be tied to founding-era evidence law, the “hearsay” definition, casually referenced …

Criminal Legal Reform In New Hampshire: One Law Professor's Activism, Albert E. Scherr

The University of New Hampshire Law Review

Criminal legal reform is a perpetual work in progress. The system itself is, at best, maddeningly imperfect. It too often fails to produce anything close to justice. Structural problems afflict the system in a way that incarcerates too many people, particularly people of color. For example, over the last thirty years, the Innocence Project has demonstrated imperfections in the system caused by faulty eyewitness identification procedures by ineffective assistance of counsel, by prosecutorial misconduct, by shoddy forensic practices and by police behavior that produced false confessions.

That the United States has well over fifty-one independent criminal legal systems frustrates efforts …

Redistributing Justice, Benjamin Levin, Kate Levine

Articles

This Essay surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite progressives’ increasingly prevalent critiques of criminal law, there is hardly a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas— often areas in which defendants are imagined as powerful and victims as particularly vulnerable.

In this Essay, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system …

All Roads Lead To Rome: Combating Impunity For Perpetration Of Slave Trade And Slavery Crimes, Jocelyn Getgen Kestenbaum

Articles

The Republic of Sierra Leone has proposed amendments to the Rome Statute of the International Criminal Court (ICC) to include, inter alia, provisions for the slave trade as a crime against humanity and has recommended that the General Assembly include the slave trade as an enumerated crime in the Draft articles on Prevention and Punishment of Crimes Against Humanity (CAH) (Draft articles). This declaration came nearly five years after Cardozo’s Benjamin B Ferencz Human Rights and Atrocity Prevention Clinic, on behalf of slavery crimes expert Patricia Viseur Sellers, sent commentaries to the United Nations International Law Commission (ILC) to revise …

The Georgian Case For Harmless Constitutional Error Reform, John Evan Laughter

Georgia State University Law Review

This Note examines Georgia’s application of harmless error review to constitutional errors and proposes a new standard to remedy deficiencies.

Standing And Criminal Law, F. Andrew Hessick, Sarah A. Benecky

BYU Law Review

According to the Supreme Court, the “irreducible constitutional minimum of Article III standing” is a concrete, particularized injury in fact that is traceable to the defendant and redressable by a favorable judgment. But this set of requirements does not apply in criminal cases. The federal government has authority to bring prosecutions for any violation of federal criminal law, regardless of whether the crime caused concrete harm to the United States or anyone else, and even though the punishment for the crime does not redress an injury in any conventional sense.

This Article argues that the difference in standing requirements between …

“No Superior But God”: History, Post Presidential Immunity, And The Intent Of The Framers, Trace M. Maddox

Washington and Lee Law Review Online

This essay is directly responsive to one of the most pressing issues currently before the courts of the United States: the question of whether former Presidents enjoy immunity from criminal prosecution for acts they committed in office. Building upon the recent ruling of the United States Court of Appeals for the D.C. Circuit in United States v. Trump, 91 F.4th 1173 (D.C. Cir. 2024) this essay argues that the clear answer to that question is a resounding “no”.

Former President Trump, who has now appealed the D.C. Circuit’s ruling to the Supreme Court, contends that post-presidential criminal immunity is …