Criminal Law Commons^™

Unequal Access To Justice: Solla V. Berlin And The Unprincipled Evisceration Of New York’S Eaja, Armen H. Merjian

Pace Law Review

Solla is noteworthy not merely in light of the baleful effects of its ruling, but because of its reasoning: it is categorically wrong. The decision wholly elides a cornerstone and settled principle of New York welfare law, namely, that in the administration of public assistance, the municipalities act as the agents of the State, while blatantly violating the most fundamental of agency principles, namely, that a principal is vicariously liable for the actions of its agent acting within the scope of its authority. Indeed, this principal/agent relationship is established both by statute and by decades of uniform state and federal …

The State Of The States: The Continuing Struggle To Criminalize Revenge Porn, Justin Pitcher

BYU Law Review

No abstract provided.

Criminal Law And Procedure, Aaron J. Campbell

University of Richmond Law Review

No abstract provided.

Mens Rea, Criminal Responsibility, And The Death Of Freddie Gray, Michael Serota

Michigan Law Review First Impressions

Who (if anyone) is criminally responsible for the death of Freddie Gray, the 25-year-old African-American man who died from injuries suffered while in the custody of Baltimore police? This question has been at the forefront of the extensive coverage of Gray’s death, which has inspired a national discussion about law enforcement’s relationship with black communities. But it is also a question that may never be fairly resolved for reasons wholly unrelated to the topic of community policing, with which Gray’s death has become synonymous. What may ultimately hamper the administration of justice in the prosecution of the police officers involved …

Firing Back: State V. Huckelba Takes Aim At Precedent, Impacting The Gun Rights Of North Carolina Citizens, Thomas C. Wolff

North Carolina Central Law Review

No abstract provided.

Application Of Ohio Post-Conviction Procedure - Effect Of Prior Judgment On.; Coley V. Alvis, Thomas A. Geraci Jr.

Akron Law Review

In the per curiam decision of Coley v. Alvis' the United States Court of Appeals for the Sixth Circuit reversed an Ohio District Court decision dismissing Coley's petition for habeas corpus for failure to exhaust his state remedies. The circuit Court remanded, stating that it would be futile for petitioner to attempt to void his conviction under the Ohio post-conviction statute because of the narrow limits placed on it by the state courts and that there was consequently no longer any effective state remedy. Since the grounds that petitioner set forth to sustain his writ did not fall within any …

Ohio's Post-Conviction Appeal Remedy, Timothy J. Murty

Akron Law Review

Ohio has recently adopted legislation intended to provide a prisoner with a means of testing, in the court which originally imposed sentence, the constitutional validity of his sentence. This legislation is intended to provide a remedy which will supplement the writ of habeas corpus. Jurisdiction in habeas corpus proceedings lies in the court of the county in which the prisoner is confined. In recent years the courts located in counties containing state correctional institutions have been deluged with habeas corpus petitions.

Criminal Responsibility: Knowledge, Will And Choice, Robert J. Willey

Akron Law Review

The Court acknowledged that the M'Naghten formula was the recognized test for insanity, that it was a test of criminal responsibility rather than a medical test of insanity, that it has been followed in a classic fashion, that each doctor had compressed his final conclusion into the required M'Naghten strait jacket, and that the defense had proved by the greater weight of the evidence that the defendant was not guilty by reason of insanity.

Both of these courts claimed to be following M'Naghten, though the Colby court decried its present use, and the Keaton court approved an instruction that included …

Shifting The Burden Of Proving Self-Defense - With Analysis Of Related Ohio Law, Randy R. Koenders

Akron Law Review

Senate Bill Number 42 was introduced into the Ohio General Assembly on February 1, 1977. The bill provides that while the burden of proof for all elements of the criminal offense with which an individual is charged rests upon the prosecution, the burden of proof for affirmative defenses rests upon the defendant, and he must prove his affirmative defense by a preponderance of the evidence. Because the bill raises serious questions concerning placing the burden of persuasion with respect to affirmative defenses generally, and self-defense in particular, on the defendant, a study of the law and policy involved in shifting …

Death Penalty; Cruel And Unusual Punishment; Individualized Sentencing Determination; Lockett V. Ohio; Bell V. Ohio, James C. Ellerhorst

Akron Law Review

“In Bell v. Ohio and Lockett v. Ohio the United States Supreme Court found the sentencing provisions of the Ohio capital punishment statute to be incompatible with the eighth and fourteenth amendments which prohibit cruel and unusual punishment. These two opinions represent the most recent attempt by the Supreme Court to explain what elements must be included in a constitutionally valid capital punishment statute.”

Motor Vehicles; Driving While Intoxicated; Section 4511.19; Implied Consent; Aurora V. Kepley, Amie Bruggeman

Akron Law Review

With the constant problem of accidents caused by drinking drivers and the fairly reliable results of breathalyzer tests established, judicial decisions have upheld the statutory scheme providing for its use through an era when rights of an accused have been greatly expanded. It has been held that the breathalyzer test results are not testimonial but physical evidence and therefore not protected by the Fifth Amendment privilege against self-incrimination. Thus, the accused has no constitutional right to refuse to take the test, and the prosecutor may comment at the trial on his refusal relying on its' probative value as to whether …

The Courtroom Status Of The Polygraph, John A. Turlik

Akron Law Review

This comment will inform the reader of the status and various uses of the polygraph available to the criminal attorney, with an emphasis on Ohio law.

Ohio Supreme Court Symposium

Akron Law Review

During the 1981-1982 term the Ohio Supreme Court rendered 250 written opinions on a wide range of topics from wiretapping to the liability of landlords for injuries. In several cases, individuals gained significant legal rights in dealing with business and others. In addition, there were some significant changes in the law governing municipal sovereignty and immunity. This symposium will not attempt to cover all decisions of the Ohio Supreme Court, but rather to highlight some of the major decisions which affect Ohioans.

Capital Punishment Of Children In Ohio: "They'd Never Send A Boy Of Seventeen To The Chair In Ohio, Would They?", Victor L. Streib

Akron Law Review

This article presents first an overview of the national legal environment and actual executions in American history and then a focused, in-depth analysis of Ohio as a reasonably representative American jurisdiction. Each of the nineteen verified and documented Ohio cases are examined in some detail to determine, so far as is possible, the reasons they were selected for capital punishment. The cases are discussed within the context of the legal environment existing at the time they were decided.

Ohio's "Sacred Seal Of Secrecy": The Rules Of Spousal Incompetency And Martial Privilege In Criminal Cases, Wilson R. Huhn

Akron Law Review

In the remainder of this essay the rules of spousal incompetency and marital privilege are compared and contrasted, the history of the rules in Ohio is traced, the underlying justifications for the rules are discussed, and a pitch is made for repeal of both rules, substituting the single rule of spousal immunity described above.

The Ohio Supreme Court's Move Toward Quality Control Of Court-Appointed Counsel For Indigent Defendants Charged With Capital Offense Crimes, George J. Ticoras

Akron Law Review

This comment outlines the law in Ohio concerning court-appointed representation of indigent defendants in capital offense cases. A brief look at Ohio's "pre-C.P.Sup.R. 65" period provides the proper backdrop in which to examine C.P.Sup.R. 65's relation to the Ohio Public Defender's Regulations and the impact this rule may have throughout the State.

I Did My Time: The Transformation Of Indiana’S Expungement Law, Joseph C. Dugan

Indiana Law Journal

This Note evaluates the transformation of Indiana’s expungement law. Part I addresses the socioeconomic impacts of a criminal record. Part II presents normative arguments both for and against expungement, concluding that the balance tips in favor of forgiveness. Parts III–IV discuss Indiana’s original expungement provisions, the 2013 statute, and the 2014 amendments. Part V explores the reaction to the new law. Finally, Part VI offers recommendations to improve the statute so that its second-chance promise is equitable, accessible, and robust.

Proportional Response: The Need For More—And More Standardized—Veterans’ Courts, Claudia Arno

University of Michigan Journal of Law Reform

Over the past two decades, judges and legislators in a number of states have recognized significant shortcomings in the ways traditional systems of criminal corrections address cases involving criminal offenders who are veterans of the U.S. armed services. This recognition has come at a time when policy-makers have similarly recognized that, for certain subsets of criminal offenders, “diversionary” programs may achieve better policy results than will traditional criminal punishment. In accordance with these dual recognitions, some states have implemented systems of veterans’ courts, in which certain offenders, who are also U.S. veterans, are diverted into programs that provide monitoring, training, …

Contact That Can Kill: Orders Of Protection, Caller Id Spoofing And Domestic Violence, Gabriella Sneeringer

Chicago-Kent Law Review

The Illinois Domestic Violence Act (IDVA) was created as a means of providing protection and remedies to domestic violence victims through orders of protection. The orders of protection can insulate victims from abusers through a variety of ways such as mandating that the abuser be prohibited from contacting the victim by any means. Under the IDVA, any violation of the order is a crime. As technology advances, abusers begin using more and more technology as a means to circumscribe orders of protection. One such technology, Caller ID spoofing, is particularly problematic. This technology enables abusers to easily contact, stalk and …

Taser Time: Electroshock Injustice Coming Soon To Athens-Clarke County, Donald E. Wilkes Jr.

Popular Media

On Sunday, Apr. 19, 2015, an article in the daily newspaper in Athens announced that Athens-Clarke County Police have already received a shipment of 145 tasers and will soon begin using them on the citizenry of this county.

Although taser electroshock devices are technically classified as nonlethal weapons, this means only that their purpose is to avoid fatalities, not that they are incapable of resulting in fatalities. Use of a nonlethal weapon may and sometimes does result in death or serious injury. In recent years, at least 600 Americans, perhaps as many as 1,000, have died suddenly, unexpectedly, or shortly …

Marijuana, Federal Power And The States, Jonathan H. Adler

Faculty Publications

It is not often that states affirmatively seek to legalize conduct prohibited by federal law. Rarer still do states seek to expressly authorize and affirmatively regulate commercial activities that remain subject to federal prohibition. Yet that is precisely what is occurring with marijuana. Indeed, what the federal government seeks to prohibit, many states hope to tax.

The insistence of multiple states on experimenting with various levels of marijuana decriminalization or legalization raises a host of important and difficult legal questions. To explore these questions, and the emerging landscape of marijuana law and policy, the Center for Business Law & Regulation …

Criminal Inflictions Of Emotional Distress, Avlana Eisenberg

Scholarly Publications

This Article identifies and critiques a trend to criminalize the infliction of emotional harm independent of any physical injury or threat. The Article defines a new category of criminal infliction of emotional distress (“CIED”) statutes, which include laws designed to combat behaviors such as harassing, stalking, and bullying. In contrast to tort liability for emotional harm, which is cabined by statutes and the common law, CIED statutes allow states to regulate and punish the infliction of emotional harm in an increasingly expansive way.

In assessing harm and devising punishment, the law has always taken nonphysical harm seriously, but traditionally it …

Criminal Infliction Of Emotional Distress, Avlana K. Eisenberg

Michigan Law Review

This Article identifies and critiques a trend to criminalize the infliction of emotional harm independent of any physical injury or threat. The Article defines a new category of criminal infliction of emotional distress (“CIED”) statutes, which include laws designed to combat behaviors such as harassing, stalking, and bullying. In contrast to tort liability for emotional harm, which is cabined by statutes and the common law, CIED statutes allow states to regulate and punish the infliction of emotional harm in an increasingly expansive way. In assessing harm and devising punishment, the law has always taken nonphysical harm seriously, but traditionally it …

Newsroom: Horwitz On Traffic Obstruction Bills, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Recent Development: Garner V. State: The Unit Of Prosecution For Use Of A Handgun In The Commission Of A Crime Of Violence Is The Crime Of Violence, Not The Victim Or Criminal Transaction; The Evidence Corroborated Two Separate Handgun Convictions; And The Trial Court's One-Year Sentence For The Second Use Of A Handgun Conviction Was Illegal, Ashlyn J. Campos

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the unit of prosecution for Section 4-204 of the Maryland Code, Criminal Law Article (“section 4-204”) is the individual crime of violence, not the victim or criminal transaction. Garner v. State, 442 Md. 226, 230, 112 A.3d 392, 394 (2015). The court of appeals further held that separate handgun convictions are permitted when evidence supports multiple crimes or felonies. Id. at 244, 112 A.3d at 402. Finally, the court held that a trial court does not possess the discretion to impose a sentence less than the mandatory five year minimum prescribed by …

Collateral Consequences And The Piling On Of The Utah White Collar Registry, Walter Pavlo

Criminal Law Practitioner

No abstract provided.

Free, But Still Behind Bars: Reading The Illinois Post-Conviction Hearing Act To Allow Any Person Convicted Of A Crime To Raise A Claim Of Actual Innocence, 35 B.C. J. L. & Soc. Just. 1 (2015), Hugh Mundy

UIC Law Open Access Faculty Scholarship

As the number of wrongfully convicted prisoners who are subsequently exonerated continues to rise, the importance of access to post-conviction relief also increases. Under the Illinois Post-Conviction Hearing Act, this access is restricted to petitioners who are currently imprisoned or otherwise facing a restraint on their liberty. Persons convicted of a crime who have completed their sentence are barred from pursuing post-conviction relief under the Act, regardless of the existence of exculpatory evidence that supports their innocence. Removing this procedural roadblock and interpreting the Act broadly to allow any person convicted of a crime to raise a claim of actual …

Kids, Leave The Guns At Home: Why Maryland's 'Good And Substantial Reason' Requirement Comports With Constitutional Aims In The Post-Heller Era, Julia Johnson

Criminal Law Practitioner

No abstract provided.

Are Indiana’S Newly Expunged Convictions Still Available For Impeachment?, Graham Polando

Indiana Law Journal

During trial, a litigant can, of course, impeach a witness with certain criminal convictions. However, Indiana Evidence Rule 609(c), like its federal counterpart, prohibits parties from introducing such evidence when “the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated . . . .” Indiana, however, has no procedure for annulment or certificates of rehabilitation—and, until recently, had nothing resembling one.

To some fanfare, the General Assembly has recently enacted an expungement provision. As courts begin to grant these expungements, it is only …

Federal Sentencing In The States: Some Thoughts On Federal Grants And State Imprisonment, John F. Pfaff

Faculty Scholarship

As the movement to reduce the outsized scale of US incarceration rates gains momentum, there has been increased attention on what federal sentencing reform can accomplish. Since nearly 90% of prisoners are held in state, not federal, institutions, an important aspect of federal reform should be trying to alter how the states behave. Criminal justice, however, is a distinctly state and local job over which the federal government has next to no direct control. In this paper, I examine one way in which the federal government may be driving up state incarceration rates, and thus one way it can try …