Criminal Law Commons^™

Collateral Visibility: A Socio-Legal Study Of Police Body Camera Adoption, Privacy, And Public Disclosure In Washington State, Bryce Clayton Newell

Indiana Law Journal

Law enforcement use of body-worn cameras has become a subject of significant public and scholarly debate in recent years. This Article presents findings from a study of the legal and social implications of body-worn camera adoption by two police departments in Washington State. In particular, this study focuses on the public disclosure of body-worn camera footage under Washington State’s public records act, state privacy law, and original empirical findings related to officer attitudes about—and perceptions of—the impact of these laws on their work, their own personal privacy, and the privacy of the citizens they serve. The law in Washington State …

Measuring The Creative Plea Bargin, Thea Johnson

Indiana Law Journal

A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining. But what is a good deal? And how do defense attorneys secure such deals? Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence. Through empirical re-search, this Article examines the measure of a good plea and the work that goes into negotiating such a plea. …

"A Choice Of Weapons": The X-Men And The Metaphor For Approaches To Racial Equality, Gregory S. Parks, Matthew W. Hughey

Indiana Law Journal

The authors explore The X-Men comic as a metaphor for both racial discrimination in the United States and strategies for addressing such discrimination. In consideration of the recent rise in the shooting of people of color, particular African American men and women, at the hands of law enforcement officers, an increasingly vocal and aggrieved segment of the white populace in the form of the “alt right,” and a presidential candidate that both implicitly and explicitly deploys “law and order” and racist appeals for particular social and political changes, we appear to once again stand at an important crossroads in American …

Reforming The Death Penalty In Egypt: An Islamic Law Perspective, Gaber Mohamed

Maurer Theses and Dissertations

The main goal of this thesis is to reform the imposition of the death penalty in the Egyptian legal system through the tools and theories of Islamic law. This subject will be discussed in three main chapters: The first chapter will be a survey of the current application of the death penalty in the Egyptian legal system, including the death penalty’s history, laws, courts, appeals, legal procedures, and general comments on the current application of the penalty. The second chapter will be about the death penalty in Islamic law – including the sources of Islamic law, the crimes that merit …

Constructing Recidivism Risk, Jessica M. Eaglin

Articles by Maurer Faculty

Courts increasingly use actuarial meaning statistically derived information about a defendant's likelihood of engaging in criminal behavior in the future at sentencing. This Article examines how developers construct the tools that predict recidivism risk. It exposes the numerous choices that developers make during tool construction with serious consequences to sentencing law and policy. These design decisions require normative judgments concerning accuracy, equality, and the purpose of punishment. Whether and how to address these concerns reflects societal values about the administration of criminal justice more broadly. Currently, developers make these choices in the absence of law, even as they face distinct …

Indiana’S Texting-While-Driving Ban: Why Is It Not Working And How Could It Be Better?, Emma Gormley

Indiana Law Journal

This Note will identify and examine obstacles standing in the way of more effective enforcement of Indiana’s texting while driving ban and make recommendations on how to achieve greater success. Part I will take a closer look at what makes texting while driving so dangerous, situating it within the larger context of distracted driving. Part II will then focus on Indiana’s legislative response in particular, breaking down the texting-while-driving laws and discussing impediments to widespread and consistent enforcement. Part III explores alternative strategies for combating those impediments to enforcement, drawing from the approaches of other areas of law and extralegal …

Transforming The System, India Thusi, Robert L. Carter

Books & Book Chapters by Maurer Faculty

Our criminal justice system must keep all communities safe, foster prevention and rehabilitation, and ensure fair and equal justice. But in too many places, and in too many ways, our system is falling short of that mandate and with devastating consequences. The United States is saddled with an outdated, unfair, and bloated criminal justice system that drains resources and disrupts communities.

The U.S. prison population has swelled to unprecedented levels and unequal, unjustified treatment based on race and ethnicity is well documented. People of color, particularly Native American, African American, and Latino people, have felt the impact of discrimination within …

The Drug Court Paradigm, Jessica M. Eaglin

Articles by Maurer Faculty

Drug courts are specialized, problem-oriented diversion programs. Qualifying offenders receive treatment and intense court-supervision from these specialized criminal courts, rather than standard incarceration. Although a body of scholarship critiques drug courts and recent sentencing reforms, few scholars explore the drug court movement’s influence on recent sentencing policies outside the context of specialized courts.

This Article explores the broader effects of the drug court movement, arguing that it created a particular paradigm that states have adopted to manage overflowing prison populations. This drug court paradigm has proved attractive to politicians and reformers alike because it facilitates sentencing reforms for low-level, nonviolent …

Method Of Attack: A Supplemental Model For Hate Crime Analysis, Angela D. Moore

Indiana Law Journal

On October 28, 2009, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA) was signed into law by President Barack Obama. Two years later, between September and November of 2011, members of a Bergholz, Ohio, Amish community allegedly carried out five attacks in which they forcibly restrained, and cut the hair and beards of, members of other Amish communities. In September of 2012, a jury rendered a verdict in United States v. Mullet and found sixteen members of the Bergholz community—including Samuel Mullet, bishop of the community—guilty of HCPA violations. These were the first convictions for religion-based …

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.

The "Once An Adult, Always An Adult" Doctrine: More Harm Than Good, Kaitlin Pegg

Indiana Journal of Law and Social Equality

This Note focuses on the negative effects of the “once an adult, always an adult” doctrine, one mechanism through which juveniles convicted of a crime can be transferred to adult court. The doctrine, enacted in a majority of states, provides that children who have been previously transferred to adult court by a judge or prosecutor, or because of statutory exclusion of certain crimes from juvenile jurisdiction, will be transferred for all subsequent crimes, regardless of severity.

When juveniles convicted of crimes are transferred to the adult court system, they are subject to a wide array of harsh punishments unavailable in …

Can Judges Make Reliable Numeric Judgments? Distorted Damages And Skewed Sentences, Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie

Indiana Law Journal

In a series of studies involving over six hundred trial judges in three countries, we demonstrate that trial judges’ civil damage awards and criminal sentences are subject to influences that make them erratic. We found that the presence of misleading numeric reference points (or “anchors”) affected judges’ decisions in a series of hypothetical cases. Specifically, judges imposed shorter sentences when assigning sentences in months rather than in years; awarded higher amounts of compensatory damages when informed of a cap on damage awards; imposed different sentences depending upon the sequence in which criminal cases were presented to them; and were influenced …

Big Fish, Small Ponds: International Crimes In National Courts, Elizabeth B. Ludwin King

Indiana Law Journal

The principle of complementarity in the Rome Statute of the International Criminal Court anticipates that perpetrators of genocide, war crimes, and crimes against humanity will be tried in domestic courts unless there is no state with jurisdiction willing or able to do so. This Article examines the situation where a state might be willing to engage in meaningful local justice but temporarily lacks the capability to do so due to the effects of the conflict. It argues that where the state submits a detailed proposal to the International Criminal Court (ICC) outlining the steps necessary to gain or regain the …

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 …

The Seductive Power Of Patriarchal Stories, Aviva A. Orenstein

Articles by Maurer Faculty

This essay develops a theme introduced in Rape and Culture of the Courtroom written by Andrew Taslitz. It examines the cases in which judges allow evidence of the victim’s sexual history and proclivities because, in their estimation, excluding such evidence would violate the constitution (an exception to rape shield in Fed. R. Evid 412). The review of these cases demonstrates the persistent power of patriarchal stories and documents how the constitutional exception sometimes indicates a resistance to the entire enterprise of rape shield. In particular, it focus on Gagne v. Booker, an en banc decision from the Sixth Circuit, …

Disarming The Dangerous: Preventing Extraordinary And Ordinary Violence, M. Fan

Indiana Law Journal

Mass shootings at Navy Yard, Newtown, Aurora, and elsewhere have jolted Congress and the states into considering gun violence prevention. More than 1500 gun-related bills have been introduced since 2013, after the slaughter in Newtown of twenty elementary-school children and six adults. Legislation and debates are shaped by the specter of a heavily armed, mentally ill individual hunting in public places such as schools, businesses, and workplaces. In the states, the most successful type of legislation involves firearms restrictions for the mentally ill. In Congress, the legislation that garnered the most debate was a ban on assault weapons and large-capacity …

Policing Sex: The Colonial, Apartheid, And New Democracy Policing Of Sex Work In South Africa, India Thusi

Articles by Maurer Faculty

In Part I of this Article, I discuss the perception that sex work was a “necessary evil” under the Dutch East India Company. In Part II, I discuss British colonial rule and the influence of the Victorian era on the policing of sex work. In Part III, I discuss the Union of South Africa and the mass hysteria following the rise of the “black peril.” Part IV discusses the apartheid era and the impact of the Immorality Act on the policing of sex workers. Part V focuses on the new democratic era and the introduction of the human rights framework. …

Emergence From Civil Death: The Evolution Of Expungement In West Virginia, Valena Beety, Michael Aloi, Evan Johns

Articles by Maurer Faculty

Ninety-two million Americans have a criminal record—nearly one in three adults. This criminal record can include an arrest that did not lead to a conviction, a conviction for which the person did not serve time in prison, or a conviction for a nonviolent crime. All can have a similar impact on an individual’s job prospects and on local economies. Incarcerating adult Americans costs a combined $68 billion annually at the local, state, and federal levels. The cost of lost wages and lost financial contributions to society by ex-offenders is even higher.

This financially immobilized population of former offenders may be …

Establishing A Suitable Lay Participation System For The Taiwanese Criminal Justice System, Yi-Lin Lou

Maurer Theses and Dissertations

This research focuses on a recent judicial reform measure proposed by the Taiwanese Judicial Yuan in 2011. The measure’s objective was to improve the criminal justice system via the implementation of a so-called “lay observer system.” The dissertation begins with an analysis regarding whether the Taiwanese criminal justice system needs to reform, and it considers whether the introduction of the proposed lay observer system would be a reasonable means of achieving the Judicial Yuan’s goals and meeting its expectations, which include rebuilding the Taiwanese society’s trust in the professional judges’ credibility and the court’s fairness. The second part of this …

Magnifying Deterrence By Prosecuting Professionals, Scott Schumacher

Indiana Law Journal

This Article examines the recent series of criminal prosecutions against tax professionals and offshore bankers. These criminal cases, brought against the largest Swiss bank (UBS), the oldest Swiss bank (Wegelin), one of the largest accounting firms in the world (KPMG), as well as numerous lawyers and accountants, represent a dramatic shift for the U.S. Department of Justice. After decades of tolerating abusive tax shelters and tax haven banks, the government changed its policy. However, rather than indicting the individuals and corporations who invested in tax shelters or hid money in offshore accounts, the Justice Department indicted the lawyers, accountants, and …

A Survey Of State Fetal Homicide Laws And Their Potential Applicability To Pregnant Women Who Harm Their Own Fetuses, Andrew S. Murphy

Indiana Law Journal

A discussion of the recent case in which a pregnant Indiana woman named Bei Bei Shuai was prosecuted for fetal homicide following a failed suicide attempt and later miscarriage. The Comment uses this case as a comparison point for different cases and statutes in all fifty states and suggests possible principles for a more unified doctrine and approach.

Empirical Fallacies Of Evidence Law: A Critical Look At The Admission Of Prior Sex Crimes, Aviva A. Orenstein, Tamara Rice Lave

Articles by Maurer Faculty

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on …

The Movement Of U.S. Criminal And Administrative Law: Processes Of Transplanting And Translating, Toby S. Goldbach, Benjamin Brake, Peter Katzenstein

Indiana Journal of Global Legal Studies

This article examines the transplanting and translating of law in the domains of criminal procedure and administrative law. The transnational movement of law is full of unexpected twists and turns that belie the notion of the United States as a legal behemoth. Furthermore, the movement of legal procedures which occurs both within and across countries with common and civil law legal traditions challenges preconceived notions of an orderly divide between legal families. While the spread of elements of the U.S. jury system and methods of plea bargaining reveals the powerful influence of U.S. legal ideas, the ways that these procedures …

The Skeptic's Guide To Information Sharing At Sentencing, Ryan W. Scott

Articles by Maurer Faculty

The “information sharing model,” a leading method of structuring judicial discretion at the sentencing stage of criminal cases, has attracted broad support from scholars and judges. Under this approach, sentencing judges should have access to a robust body of information, including written opinions and statistics, about previous sentences in similar cases. According to proponents, judges armed with that information can conform their sentences to those of their colleagues or identify principled reasons for distinguishing them, reducing inter-judge disparity and promoting rationality in sentencing law.

This Article takes a skeptical view of the information sharing model, arguing that it suffers from …

Rethinking Hiv-Exposure Crimes, Margo Kaplan

Indiana Law Journal

This Article challenges the current legislative and scholarly approaches to HIV-exposure crimes and proposes an alternative framework to address their flaws. Twenty-four states criminalize consensual sexual activities of people with HIV. Current statutes and the scholarship that supports them focus on HIV-positive status, sexual activity, and knowledge of HIV-positive status as proxies for risk, mental state, and consent to risk. As a result, they are dramatically over- and underinclusive and stigmatize individuals living with HIV. Criminalization should be limited to circumstances in which a defendant exposed her partner to a substantial degree of unassumed risk and did so with a …

Wikileaks And The First Amendment, Geoffrey R. Stone

Federal Communications Law Journal

FCBA Distinguished Speaker Series

In November 2010, Julian Assange's WikiLeaks collaborated with major media organizations to release thousands of classified U.S. State Department documents. American soldier Bradley Manning stands accused of leaking those documents to the website. In response, Congress introduced the SHIELD Act to amend the Espionage Act of 1917, making it a crime for any person to disseminate any classified information concerning American intelligence or the identity of a classified informant. Such sweeping language, while possibly constitutional as applied to government employees like Manning, is plainly unconstitutional as applied to those like Assange and WikiLeaks who subsequently publish …

The Paradox Of Statutory Rape, Russell L. Christopher, Kathryn H. Christopher

Indiana Law Journal

What once protected only virginal girls under the age of ten now also protects sexually aggressive males under the age of eighteen. While thirteenth-century statutory rape law had little reason to address the unthinkable possibility of chaste nine-year-old girls raping adult men, twenty-first-century statutory rape law has failed to address the modern reality of distinctly unchaste seventeen-year-old males raping adult women. Despite dramatically expanding statutory rape’s protected class, the minimalist thirteenth-century conception of the offense remains largely unchanged—intercourse with a juvenile. Overlooked is the new effect of this centuries-old offense—a sexually aggressive seventeen-year-old raping an adult now exposes the adult …

The Criminalization Of The Theft Of Trade Secrets: An Analysis Of The Economic Espionage Act, Nicola Searle

IP Theory

No abstract provided.

Is The Exclusionary Rule Dead?, Craig M. Bradley

Articles by Maurer Faculty

In three recent decisions, Hudson v. Michigan, Herring v. United States, and last Term's Davis v. United States, the Supreme Court has indicated a desire to severely restrict the Fourth Amendment exclusionary rule. A majority of the Justices wants to limit its application to cases where the police have violated the Fourth Amendment purposely, knowingly, or recklessly, but not where they have engaged in "simple, isolated negligence" or where negligence is "attenuated" from the discovery of the evidence. They have further suggested that evidence should not be excluded where the police have behaved as reasonable policemen, using the approach from …

Innocence And Federal Habeas After Aedpa: Time For The Supreme Court To Act, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.