Criminal Law Commons^™

Litigating Brady V. Maryland: Games Prosecutors Play, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

By any measure, Brady v. Maryland has not lived up to its expectations. Brady's announcement of a constitutional duty on prosecutors to disclose exculpatory evidence to defendants embodies, more powerfully than any other constitutional rule, the core of the prosecutor's ethical duty to seek justice rather than victory. Nevertheless, prosecutors over the years have not accorded Brady the respect it deserves. Prosecutors have violated its principles so often that it stands more as a landmark to prosecutorial indifference and abuse than a hallmark of justice. Moreover, as interpreted by the judiciary, Brady actually invites prosecutors to bend, if not break, …

An Argument For Original Intent: Restoring Rule 801(D)(1)(A) To Protect Domestic Violence Victims In A Post-Crawford World, Andrew King-Ries

Pace Law Review

No abstract provided.

Special Issues Raised By Rape Trials, Aviva A. Orenstein

Articles by Maurer Faculty

Rape cases reveal core conflicts in the space where evidence, law, and ethics intersect. Such conflicts include the tension between victim protection and the rights of the accused, the challenges attorneys face trying to negotiate the demands of sensitive and emotionally difficult cases, and the role of the law in counteracting stereotypes and bias.

In this essay, I will begin by presenting the cultural milieu surrounding rape allegations, briefly reviewing attitudes towards perpetrators and victims. Next, I will attempt to capture the legal zeitgeist concerning rape, focusing on two recent phenomena: the reversal of false rape convictions based on DNA …

Revisiting 'Dreyfus': A More Complete Account Of A Trial By Mathematics, David H. Kaye

Faculty Scholarship

Legal literature and case law depicts the infamous conviction of Alfred Dreyfus for treason and espionage in 1899 as a prime example of the irresistible power of even grossly fallacious mathematical demonstrations to overwhelm a legal tribunal. This essay shows that Dreyfus is not a case of mathematics run amok, unchecked and uncomprehended. To the contrary, the defects in the mathematical proof were dramatically exposed, and this evidence did not lead Dreyfus's judges to condemn him. This history undercuts the reliance of modern courts and commentators on Dreyfus as an indication or illustration of the alleged dangers of probability evidence …

The Science Of Dna Identification: From The Laboratory To The Courtroom (And Beyond), David H. Kaye

Faculty Scholarship

This article focuses on sequences of DNA base-pairs, which are becoming increasingly important in the field of law. These DNA sequences are used by forensic scientists to discover evidence such as blood stains, semen, saliva, and hair, and has become highly useful in the courtroom with regard to exonerating the innocent and convicting the guilty. Part I of the article examines how courts may (or may not) admit DNA evidence in court through four phases: uncritical acceptance; serious challenges to analytical methods and statistical interpretation of the results; renewed acceptance of DNA evidence; and acceptance of advance systems of DNA …

Apology In The Context Of Wrongful Conviction: Why The System Should Say It's Sorry, Abigail Penzell

Cardozo Journal of Conflict Resolution

The first section of this Note will discuss apology as a psychological tool to heal victims, offenders, and the community. The second section will examine the use of apology in analogous contexts to that of wrongful conviction. The third section will explore the potential or perceived disadvantages of offering an apology in the criminal context. The fourth section will detail the desire for apology among the wrongfully convicted as well as give examples of situations - like Mr. Fuller's - in which an apology has been tendered and has helped victims reintegrate into society. Finally, I will conclude that the …

Poetic (In)Justice? Rap Music Lyrics As Art, Life, And Criminal Evidence, Andrea L. Dennis

Scholarly Works

Courts routinely admit defendant-authored rap music lyrics as substantive evidence in the adjudication of criminal cases. In doing so, courts fail to recognize that rap music lyrics are art. Rather, judges view the interpretation of rap music lyrics as a subject of common knowledge, interpret the defendant's lyrics literally, and characterize lyrics as autobiographical depictions of actual events. In making admissibility decisions, courts must give consideration to the social constraints and artistic conventions impacting the composition and interpretation of rap music lyrics. More particularly, they must understand the commercialized nature of the rap music industry, artist claims of authenticity, and …

Please, Let's Bury The Junk: The Codis Loci And The Revelation Of Private Information, David H. Kaye

Faculty Scholarship

This Northwestern University Law Review Colloquy paper describes the four possible ways in which genetic loci could possess predictive or diagnostic value with regard to diseases and explains why these mechanisms have not led, and probably cannot lead, to useful screening tests with the Convicted Offender DNA Index System (CODIS) profiles in national, state, and local databases. It then considers the phenotypes and familial relationships that the CODIS STRs can be used to identify. The profiles carry limited information about an individual's race and familial relationships, and the article places the resulting privacy issues in perspective. Finally, the paper comments …

The Perils Of Evidentiary Manipulation, Edward K. Cheng

Vanderbilt Law School Faculty Publications

The use of evidentiary rules to achieve substantive goals strikes me as a Faustian bargain, and, given Bierschbach and Stein's acknowledgedly tentative position, I hope to dissuade them of the virtues of the practice. My goal therefore is to explore briefly the potential dark side of specialized evidentiary rules. The concerns of injecting substantive goals into evidence law extend far beyond the narrow legitimacy concerns Bierschbach and Stein raise. It is not simply the question of whether we aspire to a pluralistic or majority-take-all democratic society. Rather, evidentiary manipulation threatens the legitimacy of criminal and evidence law... Bierschbach and Stein's …

Milstein V. Chief Military Prosecutor, Edna Arbel, Aharon Barak, Edmond E. Levy

Translated Opinions

Facts: The appellant was convicted of the offence of using dangerous drugs while he was serving in the IDF. During his interrogation by the police, he confessed to using the drugs, but in his trial he pleaded not guilty and exercised his right to remain silent and not to testify in his own defence.

Following the case law of the Supreme Court, a defendant cannot be convicted solely on the basis of a confession, even when it is freely and willingly given. ‘Something extra’ is required in order to convict him. The District Court Martial and the Appeals Court Martial …

Child Statements In A Post-Crawford World: What The United States Supreme Court Failed To Consider With Regard To Child Victims And Witnesses, Allie Phillips

ExpressO

With the issuance of Crawford v. Washington, 514 U.S. 36 (2004), by the United States Supreme Court on March 8, 2004, wide spread confusion and concern swept through the nation’s prosecutorial community. The new rule announced in Crawford created too many questions and provided few answers by the Court. In particular, anxiety arose from the child protection community in regard to one primary issue: Are forensic interviews of child victims and witnesses, and other statements made by children, considered “testimonial statements” according to Crawford, thus requiring the child to take the witness stand? The Court further confused the new rule …

Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough

University of Richmond Law Review

The authors have endeavored to select from the many appellate cases those that have the most significant precedential value. The article also outlines some of the most consequential changes enacted by the General Assembly in the areas of criminal law and procedure.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Panel Report: National Security Secrecy In The Courts: A Comparative Perspective From Israel And Ireland, Peter Raven-Hansen

Cardozo Public Law, Policy & Ethics Journal

The article examines how democratic nations, including Israel, Ireland, and the United States, balance national security secrecy with the rule of law in terrorism prosecutions. It highlights the challenges of using secret evidence in criminal trials while maintaining fair procedures, comparing the legal frameworks and practices of these countries. The analysis reveals common issues, such as the tension between protecting sensitive information and ensuring defendants' rights, and underscores the need for transparency and procedural integrity in terrorism cases.

Panel Report: Secret Evidence In The Investigative Stage: Fisa, Administrative Subpoenas, And Privacy, Jameel Jaffer

Cardozo Public Law, Policy & Ethics Journal

The article examines the increasing reliance on foreign intelligence surveillance tools, such as the Foreign Intelligence Surveillance Act (FISA) and National Security Letters (NSLs), highlighting the tension between national security and civil liberties. It argues that the expansion of these tools under the Patriot Act has raised significant privacy concerns and questions about the adequacy of judicial and public oversight.

Conversational Standing: A New Approach To An Old Privacy Problem, Christopher M. Drake

ExpressO

American society has long considered certain conversations private amongst the participants in those conversations. In other words, when two or more people are conversing in a variety of settings and through a variety of media, there are times when all parties to the conversation can reasonably expect freedom from improper government intrusion, whether through direct participation or secret monitoring. This shared expectation of privacy has been slow to gain judicial recognition. Courts have indicated that the Fourth Amendment to the United States Constitution only protects certain elements of the conversation, such as where and how it takes place, but that …

Forgetting Freud: The Courts' Fear Of The Subconscious In Date Rape (And Other) Criminal Cases, Andrew E. Taslitz

ExpressO

Courts too often show a reluctance to learn the lessons taught by social science in criminal cases, especially where subconcious processes are involved. The subconscious is seen as rarely relevant and, in the unusual cases where it is relevant, it is viewed as a disease commandeering the conscious mind and thus helping to exculpate the accused. Drawing on the example of forensic linguistics in date rape cases as illustrative of a broader phenomenon, this article argues that the courts' misuse of social science stems from fear and misunderstanding of the workings of the subconscious mind. Accordingly, the piece contrasts the …

Wishing Petitioners To Death: Factual Misrepresentations In Fourth Circuit Capital Cases, Sheri Lynn Johnson

Cornell Law Faculty Publications

No abstract provided.

It's Not Just About Miranda: Determining The Voluntariness Of Confessions In Criminal Prosecutions, Paul Marcus

Faculty Publications

No abstract provided.

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The “Csi Effect”: Better Jurors Through Television And Science?, Michael D. Mann

ExpressO

This Comment discusses how television shows such as CSI and Law & Order create heightened juror expectations. This will be published in the Buffalo Public Interest Law Journal's 2005-2006 issue.

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 …

Yissacharov V. Chief Military Prosecutor, Dorit Beinisch, Aharon Barak, Eliezer Rivlin, Ayala Procaccia, Edmond E. Levy, Miriam Naor, Salim Joubran, Mishael Cheshin, Asher Grunis

Translated Opinions

Facts: While being admitted into prison for being absent from the army without leave, the appellant was found to have a dangerous drug in his possession. When he was interrogated about this, the interrogator failed to advise the appellant that he had a right to consult a lawyer. This omission, which was omitted by the prosecution, was held by the trial court to have been illegal and intentional. In the course of the interrogation, the appellant confessed that he had, on three occasions while he was a soldier, made use of dangerous drugs.

The appellant argued that the confession should …

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 …

Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp

ExpressO

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is …

"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.

Reforming Eyewitness Identification: Cautionary Lineup Instructions; Weighing The Advantages And Disadvantages Of Show-Ups Versus Lineups, Nancy K. Mehrkens Steblay

Cardozo Public Law, Policy & Ethics Journal

The article argues that the structure and instructions of eyewitness identification procedures significantly influence accuracy, with a focus on the advantages of cautious lineup instructions and the comparative effectiveness of lineups versus show-ups. It emphasizes that subtle changes in lineup instructions can reduce false identifications and improve reliability, while show-ups present unique challenges despite their practical benefits.

Flipping A Coin: A Solution For The Inherent Unreliability Of Eyewitness Identification Testimony, Noah A. Clements

ExpressO

By most accounts, mistaken eyewitness identification is the leading cause of wrongful convictions in the U.S. As DNA evidence frees ever more people wrongfully convicted on the basis of mistaken identification testimony, it is worth asking: “What about those cases where there is no DNA evidence?” Study after study shows that eyewitness identifications are unreliable. Courts pay lip service to the concept of reliability, but even after identifications are tainted by suggestion, very few courts actually exclude this tainted identification testimony.

And identifications are powerful. Jurors tend to believe identification testimony more than any other kind. And judges are people …

Dangerousness And Expertise Redux, Christopher Slobogin

ExpressO

Civil commitment, confinement under sexual predator laws, and many capital and noncapital sentences depend upon proof of a propensity toward violence. This article discusses the current state of prediction science, in particular the advantages and disadvantages of clinical and actuarial prediction, and then analyzes how the rules of evidence should be interpreted in deciding whether opinions about propensity should be admissible. It concludes that dangerousness predictions that are not based on empirically-derived probability estimates should be excluded from the courtroom unless the defense decides otherwise. This conclusion is not bottomed on the usual concern courts and commentators raise about expert …

Manson V. Brathwaite: The Supreme Court's Misunderstanding Of Eyewitness Identification, 39 J. Marshall L. Rev. 539 (2006), Ruth Yacona

UIC Law Review

No abstract provided.