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Articles 181 - 210 of 286
Full-Text Articles in Criminal Law
When Defendant Becomes The Victim: A Child's Recantation As Newly Discovered Evidence, Christopher J. Sinnott
When Defendant Becomes The Victim: A Child's Recantation As Newly Discovered Evidence, Christopher J. Sinnott
Cleveland State Law Review
This note will explore the standards for granting new trials within the child recantation setting. It will argue that insistence on respecting the evidentiary statements of children is contrary to common sense and current research. As a result, the standards for new trial ought to be rethought. Part II will analyze the two prevalent standards used by courts to weigh the merit of a new trial motion and will show why both standards present a nearly insurmountable hurdle for a movant to satisfy. Part III will explore the special issues that confront a court each time a young "victim" testifies. …
Genetically Altered Admissibility: Legislative Notice Of Dna Typing, Jayne L. Jakubaitis
Genetically Altered Admissibility: Legislative Notice Of Dna Typing, Jayne L. Jakubaitis
Cleveland State Law Review
This note examines the conflict over acceptance of DNA evidence. Part I discusses the process of DNA typing as a form of scientific evidence and the courts' responses to this novel technique. Part II examines the legislative responses to DNA typing. Part III explores the potential impact of the admissibility statutes both on the courts and on the accused. Finally, Part IV suggests areas of legislative regulation which may aid in resolving the current difficulties of DNA typing.
Genetically Altered Admissibility: Legislative Notice Of Dna Typing, Jayne L. Jakubaitis
Genetically Altered Admissibility: Legislative Notice Of Dna Typing, Jayne L. Jakubaitis
Cleveland State Law Review
This note examines the conflict over acceptance of DNA evidence. Part I discusses the process of DNA typing as a form of scientific evidence and the courts' responses to this novel technique. Part II examines the legislative responses to DNA typing. Part III explores the potential impact of the admissibility statutes both on the courts and on the accused. Finally, Part IV suggests areas of legislative regulation which may aid in resolving the current difficulties of DNA typing.
Jury Waiver In Capital Cases: An Assessment Of The Voluntary, Knowing, And Intelligent Standard, Paul Mancino Iii
Jury Waiver In Capital Cases: An Assessment Of The Voluntary, Knowing, And Intelligent Standard, Paul Mancino Iii
Cleveland State Law Review
This Note analyzes both the federal and various state standards as to what constitutes a voluntary, knowing, and intelligent waiver of trial by jury in capital cases. Through this analysis it will become apparent that the various standards among the different jurisdictions of a voluntary, knowing, and intelligent waiver are marked with disparity. This Note also argues that the jury waiver statutes in many jurisdictions fail to provide enough information for the capital defendant to make a voluntary, knowing, and intelligent waiver of the right to trial by jury while cognizant of the relevant circumstances and likely consequences. This deficiency …
Dna Data Banking: The Dangerous Erosion Of Privacy, E. Donald Shapiro, Michelle L. Weinberg
Dna Data Banking: The Dangerous Erosion Of Privacy, E. Donald Shapiro, Michelle L. Weinberg
Cleveland State Law Review
This article begins by describing the increasing prominence of DNA evidence in legal matters, before explaining how investigatory agencies wish to use DNA in their criminal investigations: primarily DNA banks and DNA testing large portions of the population in the wake of a crime. The article goes on to discuss privacy concerns about DNA profiling and DNA databanks. It discusses the differences between traditional fingerprint banks, and the greater privacy threats posed by the DNA banks. It moves on to point out the various public and private sector abuses possible with wide-spread DNA profiling. Finally, the authors suggest that legislation …
A New Twist In The War On Drugs: The Constitutional Right Of A Mentally Ill Criminal Defendant To Refuse Antipsychotic Medication That Would Make Him Competent To Stand Trial, Brian Domb
Journal of Law and Health
The purpose of this Note is to analyze what right, if any exists for a mentally ill criminal defendant to refuse the administration of antipsychotic drugs to gain competence to stand trial. Focusing mainly on the trial context of the right to refuse is not to suggest that there is not overlap between the right of a criminal defendant to refuse and the right of a civilly committed patient to refuse. Indeed, it is often unclear why an individual is brought to the emergency room of a general hospital and eventually committed, rather than being arrested and booked and later …
The Existing Confidentiality Privileges As Applied To Rape Victims, Bridget M. Mccafferty
The Existing Confidentiality Privileges As Applied To Rape Victims, Bridget M. Mccafferty
Journal of Law and Health
It is evident that when this type of questioning occurs, the victim must overcome the presumption that she is at fault. As it exists, the prosecution of the rapist also results in the prosecution of the victim. However, it is undeniable that the defendant in a rape case is presumed innocent until a judicial determination states otherwise. A dilemma arises when the court attempts to balance the victim's right to bring the accused to trial and the defendant's right to prove his innocence. Currently, the judicial system favors the presumption of the defendant's innocence, presupposing that the victim has falsely …
Willfulness And Ignorance In Federal Criminal Law, Michael E. Tigar
Willfulness And Ignorance In Federal Criminal Law, Michael E. Tigar
Cleveland State Law Review
In confronting the system of federal crimes, no word has sown more confusion than "willfully." While the term appears in literally dozens of offenses in Titles 18 and 26 of the United States Code, its meaning may vary considerably. Moreover, willfulness may be added to a statutory offense definition by judicial decision or to the indictments' allegations by prosecutorial practice. However, the absence of a unitary judicial and legislative definition of willfulness is not a reason for throwing over well-established rules about criminal intent. Precision and differentiation, and not any single categorical imperative, are the goals. All the slogans deployed …
The Reign Of The Queen Of Hearts: The Declining Significance Of The Presumption Of Innocence - A Brief Commentary, Leroy Pernell
The Reign Of The Queen Of Hearts: The Declining Significance Of The Presumption Of Innocence - A Brief Commentary, Leroy Pernell
Cleveland State Law Review
The cherished concept of the presumption of innocence and the need for adjudication before sentence has eroded over the years. Taking its place is a growing belief that the safety of society depends on massive deprivation of liberty and property without predetermination of guilt. The notion of innocence has now become an inconvenient technicality as opposed to a valued principle. This article will examine the origin, history, and decline of the presumption of innocence in three contexts: (1) pretrial detention, (2) property forfeiture, and (3) trial stage -courtroom settings and jury instructions.
Scarlet Letter Punishment: Yesterday's Outlawed Penalty Is Today's Probation Condition, Leonore H. Tavill
Scarlet Letter Punishment: Yesterday's Outlawed Penalty Is Today's Probation Condition, Leonore H. Tavill
Cleveland State Law Review
The use of alternatives has sparked a whole host of new issues. The most significant of these new issues is the determination of who should or should not receive probation' and what kind of probation condition can be justified for certain criminals. Desperation, indefinite statutory provisions, and the resulting judicial discretion afforded to those on the bench has led to the imposition of some probation conditions which are unnecessarily harsh, unjustified, and possibly unconstitutional. Of particular concern is the growing use of "scarlet letter" probation conditions which require signs to be posted on the offender's property warning the public by …
Broken Promises And Involuntary Confessions: May A State Introduce Incriminating Statements Made By A Defendant As A Result Of Promises In A Plea Bargain Agreement If The Defendant Breaches That Agreement, Bradford C. Mank
Cleveland State Law Review
There is a substantial constitutional question concerning whether admissions made pursuant to a plea bargain that the defendant has breached are admissible under the fifth amendment's privilege against compelled self-incrimination or the due process clauses of the fifth and fourteenth amendments. Courts have reached conflicting results in regard to whether such statements are voluntary.10 This Article argues that it is difficult to resolve whether such admissions are voluntary because courts have not provided a clear definition as to under what circumstances a confession is voluntary in accordance with the dictates of the fifth and fourteenth amendments. Instead of focusing on …
Executive Order 12,564: Toward A Drug-Free Federal Workforce, Robert M. Kruger
Executive Order 12,564: Toward A Drug-Free Federal Workforce, Robert M. Kruger
Journal of Law and Health
For all of these reasons, the President issued an Executive Order on September 15, 1986, designed to achieve a drug-free federal workplace. Consistent with the President's views, it focuses on helping, not punishing, drug users. Time does not permit me to go into each of the Order's provisions in great detail. I would, however, like to offer an overview of the major provisions of the Order. In deference to the occasion, I will concentrate on the provisions of the Order which authorize the use of drug testing to achieve that objective. The Executive Order calls upon "agency heads," the chief …
Moving To Dismiss A Civil Rico Action, David J. Howard
Moving To Dismiss A Civil Rico Action, David J. Howard
Cleveland State Law Review
The use and abuse of the Racketeer Influenced and Corrupt Organizations Act ("RICO") has troubled judges and lawyers for some time while providing fertile ground for commentators. The plethora of RICO cases is equaled only by the tremendous proliferation of commentary. This Article, while admittedly contributing to this proliferation, is excusable, however, because its purpose is to facilitate summary disposition of RICO claims by providing a practical guide to achieving early dismissal under Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure. It is impossible to set forth all grounds for dismissing every RICO complaint. The scope of …
Ford V. Wainwright, Statutory Changes And A New Test For Sanity: You Can't Execute Me, I'M Crazy, Steven J. Huff
Ford V. Wainwright, Statutory Changes And A New Test For Sanity: You Can't Execute Me, I'M Crazy, Steven J. Huff
Cleveland State Law Review
In Ford v. Wainwright, the Supreme Court addressed the issue of whether the Eighth Amendment prohibits the execution of an insane inmate. In answering this query, the Court created a constitutional right not to be executed while incompetent. However, the Ford decision is not only important for its creation of a "new" constitutional right, it also has the potential of nullifying several state statutes in regards to the due process requirements of hearings addressing the issue of insanity at the time of execution. The Ford decision also requires that a new test of sanity be created the test of whether …
Resisting Unlawful Arrest: A Due Process Perspective, Penn Lerblance
Resisting Unlawful Arrest: A Due Process Perspective, Penn Lerblance
Cleveland State Law Review
To resist arrest is a crime. But is it a crime if the arrest resisted is unlawful? More particularly, is a lawful arrest an issue in a trial for resisting arrest? This inquiry invokes the constitutional due process problem of proof illustrated in Hoover v. Garfield Heights Municipal Court, decided in September 1986 by the United States Court of Appeals for the Sixth Circuit. Section II discusses the Hoover case, and then Section III delves into the issue of a right to resist an unlawful arrest. Section IV explains that an unlawful arrest is authorized when there is a legislative …
Should The Insanity Defense Be Abolished - An Introduction To The Debate, Norval Morris, Richard Bonnie, Joel J. Finer
Should The Insanity Defense Be Abolished - An Introduction To The Debate, Norval Morris, Richard Bonnie, Joel J. Finer
Journal of Law and Health
As the plans for the debate began to unfold I was concerned about the possibility that the subject matter might already be jaded, or in any event no longer would be a "hot topic" for our potential audience. Being quite familiar with the writings of our Advocates and therefore particularly susceptible to the reader-listener rehash syndrome, I was nonetheless hopeful that what had the potential for being old-hat would instead be new and interesting to those members of the audience not professionally committed to intimate familiarity with the subject matter. While I had expected that these issues, aired in the …
Terror And Terrorism: There Is A Difference, David F. Forte
Terror And Terrorism: There Is A Difference, David F. Forte
Law Faculty Articles and Essays
To formulate an effective legal and moral response to terrorism, fundamental differences must be acknowledged. We must realize that all acts of terror are not legally interchangeable. We should not create legal instruments that confound essential dissimilarities. We should acknowledge that terrorism is an organized, low level attack by groups trying to destroy the Western legal and moral order. We should recognize that many such terrorist groups have been given purported legitimacy by a distorted notion of self-determination and by recognition within many international bodies. Also, we should face the fact that the effectiveness of terrorism is immeasurably enhanced by …
Gates, Leon And The Compromise Of Adjudicatory Fairness: (Part Ii)-Aggressive Majoritarianism, Willful Deafness, And The New Exception To The Exclusionary Rule, Joel J. Finer
Law Faculty Articles and Essays
This Article will offer an elaboration of the idea of judicial "aggressiveness" (which Professor Stone, by and large, leaves undefined) through examination of the majority opinion in United States v. Leon and its application in Massachusetts v. Sheppard. It will also advance the thesis that the majority in Leon exhibited a particular kind of aggressiveness--willful deafness.
The Eighth Amendment And Capital Punishment Of Juveniles, Victor L. Streib
The Eighth Amendment And Capital Punishment Of Juveniles, Victor L. Streib
Cleveland State Law Review
The practice of imposing the death penalty for crimes committed while under the age of eighteen has occurred sporadically but persistently throughout American history. It gives every indication of continuing in this mode under current law and practice. Greatly differing approaches are followed by the various states as to the authorization and imposition of capital punishment for juveniles. This article explores the existence of a constitutionally-mandated minimum age below which the states may not venture in carrying out this practice. If such a nationwide minimum age exists or should exist, its justification can be found in current interpretations of the …
Islamic Law And The Crime Of Theft: An Introduction, David F. Forte
Islamic Law And The Crime Of Theft: An Introduction, David F. Forte
Cleveland State Law Review
This Article introduces the concept of theft in Islamic law. As such, it does not pretend to be comprehensive either in the data it puts forth or in its analysis. Rather, the Article raises a number of issues for discussion, and offers, most tentatively, suggested answers to the following points: 1) whether theft in Islamic law properly belongs to the species of manifest criminality; 2) what possible justifications exist for such an extreme penalty; 3) what were the requirements for conviction; and 4) some concluding observations as to why the classical jurists encumbered a prosecution for theft with so many …
Gates, Leon And The Compromise Of Adjudicatory Fairness: (Part I)-A Dialogue On Prejudicial Concurrences, Joel J. Finer
Gates, Leon And The Compromise Of Adjudicatory Fairness: (Part I)-A Dialogue On Prejudicial Concurrences, Joel J. Finer
Law Faculty Articles and Essays
On July 5, 1984, the Supreme Court in Leon v. United States held that where law enforcement officials execute a search warrant issued in violation of the dictates of the fourth amendment but act in the "good faith," "objectively-reasonable" belief that the warrant was constitutionally valid, the fruits of the search should not (with a few exceptions) be excluded from evidence under the exclusionary rule. On June 8, 1983, in Illinois v. Gates, the Supreme Court, after calling for and receiving briefs and arguments on the same issue of whether the exclusionary rule should be modified, concluded, for reasons of …
Introduction To Debate (Between N. Morris And R. Bonnie): Should The Insanity Defense Be Abolished?, Joel J. Finer
Introduction To Debate (Between N. Morris And R. Bonnie): Should The Insanity Defense Be Abolished?, Joel J. Finer
Law Faculty Articles and Essays
The author introduces a debate between Professor Norval Morris and Professor Richard Bonnie on the insanity defense.
Voluntary Manslaughter After Patterson: An Analysis Of Ohio Law, Margaret M. Higgins
Voluntary Manslaughter After Patterson: An Analysis Of Ohio Law, Margaret M. Higgins
Cleveland State Law Review
Ohio courts have struggled to divine the constitutional mandate of the reasonable doubt standard while simultaneously attempting to give a viable interpretation to the state's relatively new manslaughter law. Their approach has resulted in an unusual definition of manslaughter which has proven particularly unworkable. In addition, several other problems have developed as a result of the enactment of the manslaughter law. First, the policy espoused by the Supreme Court in its decisions has been abrogated under Ohio law. Second, Ohio law nearly abandons the distinction between murder and manslaughter. This is especially dangerous in light of the presumption of criminal …
Voluntary Manslaughter After Patterson: An Analysis Of Ohio Law, Margaret M. Higgins
Voluntary Manslaughter After Patterson: An Analysis Of Ohio Law, Margaret M. Higgins
Cleveland State Law Review
Ohio courts have struggled to divine the constitutional mandate of the reasonable doubt standard while simultaneously attempting to give a viable interpretation to the state's relatively new manslaughter law. Their approach has resulted in an unusual definition of manslaughter which has proven particularly unworkable. In addition, several other problems have developed as a result of the enactment of the manslaughter law. First, the policy espoused by the Supreme Court in its decisions has been abrogated under Ohio law. Second, Ohio law nearly abandons the distinction between murder and manslaughter. This is especially dangerous in light of the presumption of criminal …
Garland V. Herrin: Surviving Parents' Remedies For A Child's Wrongful Death - The Pecuniary-Loss Rule And Reckless Infliction Of Emotional Distress, Kathleen Keogh Miller
Garland V. Herrin: Surviving Parents' Remedies For A Child's Wrongful Death - The Pecuniary-Loss Rule And Reckless Infliction Of Emotional Distress, Kathleen Keogh Miller
Cleveland State Law Review
The parents of Bonnie Garland are only two of the innumerable third-party victims who have suffered from the wrongful death of a child. Because the "emotional distress" suffered by the Garlands was comprised of so many elements, the wrongful death of their child provides a framework for analyzing all the harms engendered within the term "emotional distress" and the availability of civil remedies for each of those "separable" harms. The tragedy of the Garlands will be used as a vehicle to assess the success of legislatures and courts in enacting and interpreting wrongful death statutes. The important question becomes whether …
Defending The Guilty, Barbara Allen Babcock
Defending The Guilty, Barbara Allen Babcock
Cleveland State Law Review
How can you defend a person you know is guilty? I have answered that question hundreds of times, never to my inquirer's satisfaction, and therefore never to my own. In recent years, I have more or less given up, abandoning the high-flown explanations of my youth, and resorting to a rather peevish: "Well, it's not for everybody. Criminal defense work takes a peculiar mind-set, heart-set, soul-set." While I still believe this, the mind-set might at least be more accessible through a better effort at explanation. First we will examine the nature of the question, then the possible answers. We must …
Fact Or Fiction: Mitigating The Death Penalty In Ohio, Daniel D. Domozick
Fact Or Fiction: Mitigating The Death Penalty In Ohio, Daniel D. Domozick
Cleveland State Law Review
The trial courts must issue written opinions whenever the death penalty is imposed. This Note will analyze opinions handed down since the enactment of the capital statute to ascertain whether the various mitigating factors adequately meet the concerns of Lockett. Part II contains a brief overview of Ohio's capital plan. The scope and interpretation of the mitigating factors should dominate future appellate decisions; thus, in Part III, four mitigating factors will be examined. In Part IV the treatment of the mitigating factors in the weighing process will be explored. The examination of the mitigating factors in the capital statute is …
Genetically-Influenced Antisocial Conduct And The Criminal Justice System, Lawrence E. Taylor
Genetically-Influenced Antisocial Conduct And The Criminal Justice System, Lawrence E. Taylor
Cleveland State Law Review
The trend of current genetic research is clear. Assuming the legal system is eventually presented with the scientific capability of "reading" DNA and the statistical ability of predicting with substantial accuracy the probable future consequences of aberrant genetic structure, some very difficult questions will be posed. How should the criminal justice system deal with a criminal offender whose conduct was caused by a genetic aberration? Does society have the right to seek out such individuals before they cause harm and remove them from the community?
Multiple Convictions Statute In Ohio: Has It Achieved Its Intended Result, Dale A. Nowak, Jeffrey A. Key
Multiple Convictions Statute In Ohio: Has It Achieved Its Intended Result, Dale A. Nowak, Jeffrey A. Key
Cleveland State Law Review
The Ohio Allied Offense Statute is a codification of the common law doctrine of merger and is the Ohio legislature's attempt to insulate criminal defendants from harsh and absurd punishment. This Article discusses the relationship of certain constitutional guarantees against multiple punishments to the Allied Offense Statute and the multiple punishment controversy in Ohio.
Capital Punishment In Ohio: Aggravating Circumstances, Elaine C. Hilliard
Capital Punishment In Ohio: Aggravating Circumstances, Elaine C. Hilliard
Cleveland State Law Review
The state of Ohio enacted a new death penalty statute which became effective October 19, 1981. As of January 18, 1983, eighty-three defendants had been indicted under the new statute. It is, therefore, both necessary and timely to evaluate Ohio's statutory delineation of who may die and its effect for compliance with constitutional mandates. This Note sets forth the hypotheses and supporting legal authority for analyzing Ohio's statutory aggravating circumstances individually and in the aggregate on equal protection and procedural due process grounds.