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Articles 211 - 240 of 264

Full-Text Articles in Criminal Law

Take Courage: What The Courts Can Do To Improve The Delivery Of Criminal Defense Services, Adele Bernhard Jan 2002

Take Courage: What The Courts Can Do To Improve The Delivery Of Criminal Defense Services, Adele Bernhard

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

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Criminal Prosecution For Hmo Treatment Denial, John A. Humbach Jan 2001

Criminal Prosecution For Hmo Treatment Denial, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

This article will first provide a brief examination of the economic pressures that market forces bring to bear on HMOs and their decision-making personnel. The objective is to show how the natural effect of normal market forces is to exert a constant pressure towards treatment delays and denials, particularly in the cases of elderly and chronically ill patients. Part III will provide an overview of the existing criminal law as it applies to situations in which death results because someone has violated a legal duty to provide medical treatment. In Part IV, the question of the requisite mental culpability will …

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The Correction Of Wrongful Convictions: A Comparative Perspective, Lissa Griffin Jan 2001

The Correction Of Wrongful Convictions: A Comparative Perspective, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

This Article analyzes the different modes in which two facially similar adversarial systems remedy wrongful convictions. Part I briefly examines the origins of wrongful convictions in both England and the United States. Part II describes the appellate processes in the two countries for correcting wrongful convictions. Part III addresses the processes for correcting wrongful convictions after the appellate processes have been completed. Part IV critiques the English process and examines whether aspects of that process may be carried over to the United States.

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The Prosecutor's Duty To Truth, Bennett L. Gershman Jan 2001

The Prosecutor's Duty To Truth, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Part I of this Article discusses the prosecutor's duty to refrain from conduct that impedes the search for truth. A prosecutor may impede the truth-finding process in several ways: (1) distorting the truth by attacking the defendant's character, misleading and misrepresenting facts, and engaging in inflammatory conduct; (2) subverting the truth by making false statements and presenting false evidence; (3) suppressing the truth by failing to disclose potentially truth-enhancing evidence or obstructing defense access to potentially truth-enhancing evidence; and (4) other truth-disserving conduct that exploits defense counsel's misconduct and mistakes and prevents introduction of potentially truth-serving defenses. Part I also …

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Child Witnesses And Procedural Fairness, Bennett L. Gershman Jan 2001

Child Witnesses And Procedural Fairness, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Professor Gershman's Article notes that courts and lawmakers have changed procedural and evidentiary rules to protect child witnesses in child sexual abuse cases. Gershman discusses how courts apply the changed rules with careful scrutiny in an effort to ensure that the interests of the child witness and the accused defendant are appropriately balanced.

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Burdening Constitutional Rights: The Supreme Court's License To Prosecutors, Bennett L. Gershman Jul 2000

Burdening Constitutional Rights: The Supreme Court's License To Prosecutors, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The prosecutorial tactic of burdening a defendant’s exercise of constitutional rights has appeared in a variety of contexts. Prosecutors have asked juries to infer guilt based on a defendant’s decision not to testify, not to call witnesses, to remain silent after being given Miranda warnings, to go to trial, to secure the assistance of counsel, to refuse to consent to a warrantless search, and to testify. In all of these instances, courts have found the prosecutor’s remarks to constitute misconduct.

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What Do You Do When You Meet A "Walking Violation Of The Sixth Amendment" If You're Trying To Put That Lawyer's Client In Jail?, Vanessa Merton Jan 2000

What Do You Do When You Meet A "Walking Violation Of The Sixth Amendment" If You're Trying To Put That Lawyer's Client In Jail?, Vanessa Merton

Elisabeth Haub School of Law Faculty Publications

For the purpose of this article, the relevance of my experience as a criminal defense attorney is this: if ever one might expect to find a prosecutor inclined to err on the side of fairness of process and protecting the rights of defendants, it ought to be me. Also, for more than twenty years, I have been something of a professional ethicist--as research fellow, teacher, staff member of an ethics center, chair and/or member of several institutional review boards, pro bono trial counsel to a disciplinary committee, ethics consultant, and expert witness--and, therefore, one might think, especially susceptible to the …

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Current Issues In The Psychiatrist-Patient Relationship: Outpatient Civil Commitment, Psychiatric Abandonment And The Duty To Continue Treatment Of Potentially Dangerous Patients--Balancing Duties To Patients And The Public, Vanessa Merton, Linda C. Fentiman Jan 2000

Current Issues In The Psychiatrist-Patient Relationship: Outpatient Civil Commitment, Psychiatric Abandonment And The Duty To Continue Treatment Of Potentially Dangerous Patients--Balancing Duties To Patients And The Public, Vanessa Merton, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

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Parallels In Predicting Dangerousness--What Price Security?, Vanessa Merton, Adele Bernhard Jan 2000

Parallels In Predicting Dangerousness--What Price Security?, Vanessa Merton, Adele Bernhard

Elisabeth Haub School of Law Faculty Publications

One question is: why should an employer have any duty to intervene, respond, or warn when an employee is deemed “dangerous”? What expertise in making these predictions can your average business manager bring to the table? As lawyers we tend never to look at law that is more than a week old. Similarly, scientists prefer not to rely on science that is more than a few months old. Yet, here is an article written almost 20 years ago when I was a young Associate for Law at the Hastings Center for a symposium honoring the great forensic psychiatrist Dr. Jonas …

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Rethinking Genocidal Intent: The Case For A Knowledge-Based Interpretation, Alexander K.A. Greenawalt Jan 1999

Rethinking Genocidal Intent: The Case For A Knowledge-Based Interpretation, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

From its initial codification in the 1948 Convention on the Prevention and Punishment of Genocide to its most recent inclusion in the Rome Statute of the International Criminal Court, the international crime of genocide has been defined as involving an "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." The predominant interpetation of this language views genocide as a crime of "specific" or "special" intent, in which the perpetrator deliberately seeks the whole or partial destruction of a protected group. This Note pursues an alternate approach. Relying on both the history of …

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Proving The Lie: Litigating Police Credibility, David N. Dorfman Jan 1999

Proving The Lie: Litigating Police Credibility, David N. Dorfman

Elisabeth Haub School of Law Faculty Publications

This essay proposes a wider scope for a somewhat timeworn discussion-specifically, that police mendacity and the need to deter this form of police misconduct go to the very heart of our criminal justice system and the need for trust in government and its processes, which search and seizure law and practice is only a small part. Being only a part of a much larger systemic societal problem, tinkering with search and seizure law and process alone will not heighten the police witness' respect for the oath.

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When Justice Fails: Indemnification For Unjust Conviction, Adele Bernhard Jan 1999

When Justice Fails: Indemnification For Unjust Conviction, Adele Bernhard

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

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Private Bar Monitors Public Defense: Oversight Committee Sets Standards For Indigent Defense Providers, Adele Bernhard Jan 1998

Private Bar Monitors Public Defense: Oversight Committee Sets Standards For Indigent Defense Providers, Adele Bernhard

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

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Prosecutorial Use Of Expert Testimony In Domestic Violence Cases: From Recantation To Refusal To Testify, Audrey Rogers Jan 1998

Prosecutorial Use Of Expert Testimony In Domestic Violence Cases: From Recantation To Refusal To Testify, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

This article discusses the use of expert testimony in prosecuting those charged with domestic abuse. Part I provides a background on the need and nature of expert testimony in domestic violence cases and the requirements for the admission of such expert testimony. It traces the development of the role of expert testimony in domestic violence cases from its initial exclusive use as a defense tool to support self-defense claims to its present use by prosecutors to explain a complainant's recantation or other puzzling behavior. Part II discusses the appellate cases that have addressed the admissibility and scope of expert testimony …

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A More Principled Approach To Criminalizing Negligence: A Prescription For The Legislature, Leslie Yalof Garfield Jan 1998

A More Principled Approach To Criminalizing Negligence: A Prescription For The Legislature, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

This discussion focuses on those jurisdictions that have used ordinary negligence to find criminal liability when a person uses an inherently dangerous instrument, engages in an inherently dangerous activity, or engages in conduct that poses a threat of widespread public injury. Part IV analyzes the appropriateness of permitting punishment based on ordinary negligence and concludes that it is entirely responsible to adjust criminal sanctions to respond to a fast-paced and technologically reliant culture that consciously trades due care for greater and swifter achievements. Part IV also offers a model for legislatures to follow when evaluating the appropriateness of criminalizing negligent …

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Mental Culpability And Prosecutorial Misconduct, Bennett L. Gershman Jan 1998

Mental Culpability And Prosecutorial Misconduct, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This Article argues that a prosecutor's intent is always relevant to the courts' analysis of misconduct, and that the courts should always consider a prosecutor's intent in determining whether a rule was violated and whether the verdict was prejudiced. Part II of this Article examines the use of the objective test to analyze a prosecutor's trial conduct. Part II offers several reasons courts give for avoiding inquiry into a prosecutor's mental culpability, analyzes those reasons, and concludes that although the application of an objective test is sufficient to correct misconduct in some instances, it does not foreclose application of a …

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Accomplice Liability For Unintentional Crimes: Remaining Within The Constraints Of Intent, Audrey Rogers Jan 1998

Accomplice Liability For Unintentional Crimes: Remaining Within The Constraints Of Intent, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

This Article addresses the issue of the proper extent of a secondary actor's culpability for unintentional crimes committed by another. Part I reviews accomplice liability and its mens rea requirements generally. Part II discusses the history of the application of complicity theory to unintentional crimes. Part III examines whether accomplice liability for unintentional crimes is proper, and concludes that in keeping with complicity's doctrinal requirements, liability is appropriate only when the secondary actor has the intent to aid in the commission of the culpable act that results in unplanned harm. It evaluates whether the various categories of accomplice statutes sufficiently …

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Judicial Interference With Effective Advocacy By The Defense, Bennett L. Gershman Jan 1997

Judicial Interference With Effective Advocacy By The Defense, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

A fundamental premise of the American criminal justice system is defense counsel's zealous professional advocacy. Representation of a criminal defendant to be effective must be vigorous. In administering a trial, judges have a duty to ensure a fair and orderly proceeding. On occasion, however, judges overstep the line and impede defense counsel's advocacy functions unfairly. This article describes some of the ways that trial judges may violate legal and ethical standards by improperly interfering with defense counsel's courtroom functions.

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Defensively Invoking Treaties In American Courts--Jurisdictional Challenges Under The U.N. Drug Trafficking Convention By Foreign Defendants Kidnapped Abroad By U.S. Agents, Thomas Michael Mcdonnell Jan 1996

Defensively Invoking Treaties In American Courts--Jurisdictional Challenges Under The U.N. Drug Trafficking Convention By Foreign Defendants Kidnapped Abroad By U.S. Agents, Thomas Michael Mcdonnell

Elisabeth Haub School of Law Faculty Publications

This Article unravels the non-self-executing treaty doctrine, examines the invocation of a treaty as a defense to governmental action, and develops a test for when an individual (rather than a government) may assert a treaty defensively in state or federal courts. Lastly, this Article applies this test to state-sponsored kidnapping and the U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The parties to this treaty, which was sponsored by the United States, barred one country's law enforcement agents from operating without permission on another country's soil and rejected a provision requiring a country to extradite its own …

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The Mandatory Arrest Law: Police Reaction, Kevin Walsh Sep 1995

The Mandatory Arrest Law: Police Reaction, Kevin Walsh

Pace Law Review

The mandatory arrest requirement in certain domestic violence situations is unique, due to the fact that no other class of offense requires arrest. The Criminal Procedure Law states that a police officer "may arrest" for all other classes of offenses. The new subdivision states that a police officer "shall arrest a person, and shall not attempt to reconcile the parties or mediate .... ." The use of the word "shall," in contrast to "may," indicates obligation or necessity. Why has this class of offenses been singled out for mandatory arrest? What factors brought this mandatory arrest law about?

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Fictions, Fault, And Forgiveness: Jury Nullification In A New Context, David N. Dorfman Jan 1995

Fictions, Fault, And Forgiveness: Jury Nullification In A New Context, David N. Dorfman

Elisabeth Haub School of Law Faculty Publications

Recently, critics of the Anglo-American jury system have complained that juries in criminal trials have been ignoring the law, in favor of defendants who claim that they lack criminal responsibility because they are afflicted by the various victimization syndromes now popularized in the mass media. In this Article, Professors Dorfman and Iijima counter this characterization of the "runaway" jury and argue that juries are not ignoring the law, but rather, are exercising a primary power of the jury, to nullify the application of the law when such application to a particular defendant is unjust. The Authors trace the development of …

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Prosecutorial Misconduct In Presenting Evidence: "Backdooring" Hearsay, Bennett L. Gershman Jan 1995

Prosecutorial Misconduct In Presenting Evidence: "Backdooring" Hearsay, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Rules of evidence are designed to bring about just and informed decisions. One of these rules, the hearsay rule, is designed to ensure that juries receive reliable evidence, and that out-of-court statements ordinarily are inadmissible. Prosecutors are well aware of these evidentiary restrictions, but occasionally seek to circumvent them. The author describes methods used by some prosecutors to manipulate the hearsay rule and thereby distort the truth-finding process of the trial.

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New Insights On Waiver And The Inadvertent Disclosure Of Privileged Materials: Attorney Responsibility As The Governing Precept, Audrey Rogers Jan 1995

New Insights On Waiver And The Inadvertent Disclosure Of Privileged Materials: Attorney Responsibility As The Governing Precept, Audrey Rogers

Elisabeth Haub School of Law Faculty Publications

This Article suggests that fostering the development of attorney responsibility should be the central goal in addressing the issues raised by the inadvertent disclosure. Deciding the waiver issue by concentrating on attorney responsibility will help prevent inadvertent disclosures (and resultant waivers) by impressing upon the attorney the need to take care to avoid them. When disclosures inadvertently occur, the amount of precautions the attorney took (albeit unsuccessfully) should determine whether the privilege is waived. Placing the onus of precautions against inadvertent disclosure on the attorney is not only beneficial to the client, but also aids the profession, and the overall …

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The Gate Is Open But The Door Is Locked - Habeas Corpus And Harmless Error, Bennett L. Gershman Jan 1994

The Gate Is Open But The Door Is Locked - Habeas Corpus And Harmless Error, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Brecht is a paradigm of the Rehnquist Court's result-oriented approach to habeas corpus and harmless error. The decision purports to be a principled application of the policies of finality, federalism, and judicial economy that underlay the Court's new habeas and harmless error jurisprudence. It is, in fact, an unwarranted and unprincipled extension of those policies. Depending on how the lower federal courts interpret and implement the decision, Brecht could have a devastating impact on the way state prosecutors and judges administer criminal justice, as well as the ability of state prisoners to redress constitutional violations.

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The Right To Effective Assistance Of Appellate Counsel, Lissa Griffin Jan 1994

The Right To Effective Assistance Of Appellate Counsel, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

This article closely examines the Supreme Court's decision in Strickland v. Washington, as it applies to effective assistance of trial counsel. Part III analyzes the constitutional origin and current status of the right to effective assistance of counsel on appeal. Part IV discusses the functional differences between trial and appellate counsel, the differences in the two forums, and the different effect that a finding of ineffectiveness of counsel at trial or on appeal has on finality. Part V formulates a standard to govern ineffectiveness of appellate counsel claims that incorporates Strickland's “reasonable competence” standard, but applies that standard differently with …

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Whose Crime Is It Anyway?: Liability For The Lethal Acts Of Nonparticipants In The Felony, Michelle S. Simon Jan 1994

Whose Crime Is It Anyway?: Liability For The Lethal Acts Of Nonparticipants In The Felony, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

This Article explores the methodology that courts should employ when determining the liability of a defendant under the felony-murder doctrine, where the perpetration of a felony results in the death of a nonparticipant in the crime by another nonparticipant. Part I of the Article addresses the history of the doctrine, the policies that have sustained it throughout history, and the modern statutory promulgations of the rule. Part II explores not only how courts have handled the doctrine's causation requirement, but also how legislatures have responded to this requirement. Further, Part II discusses the court-created theories of agency and proximate cause. …

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Draft Charter Of The International Tribunal For Violations Of International Humanitarian Law In The Former Yugoslavia Jan 1994

Draft Charter Of The International Tribunal For Violations Of International Humanitarian Law In The Former Yugoslavia

Pace International Law Review

No abstract provided.

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Defending The Poor, Bennett L. Gershman Mar 1993

Defending The Poor, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Given the harsh reality that the quality of justice that people get in this country often depends on how much money they have , is our society's aspiration toward "equal justice" attainable? Probably not. A criminal defendant's poverty is not necessarily inconsistent with zealous advocacy. But whether lawyers for the poor adequately protect their clients' rights in criminal cases is the subject of ongoing debate.

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Themes Of Injustice: Wrongful Convictions, Racial Prejudice, And Lawyer Incompetence, Bennett L. Gershman Jan 1993

Themes Of Injustice: Wrongful Convictions, Racial Prejudice, And Lawyer Incompetence, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The U. S. criminal justice system has undergone radical changes in the past generation. Crime is more complex; prosecutors are more powerful; and courts, corrections agencies, and defense services are burdened with larger case loads and tighter budgets. It is not the best of times to talk about justice. Yet, it is a subject that needs to be constantly addressed, particularly in times of crisis. The following essay focuses on some of the problems that present themselves in the criminal justice system today, including the conviction of innocent defendants, especially in capital cases; racial prejudice; and lawyer incompetence.

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A Moral Standard For The Prosecutor's Exercise Of The Charging Discretion, Bennett L. Gershman Jan 1993

A Moral Standard For The Prosecutor's Exercise Of The Charging Discretion, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

This Essay does not attempt to retrace the subject of prosecutorial discretion from the standpoint of the controlling factors, doctrinal limitations, or norms of conduct applicable to prosecutors generally. Rather, it addresses the charging process in a narrower compass. It poses three hypothetical cases that present both realistic and recurrent challenges to the prosecutor's charging power. The first case de pends on a factual determination of a witness's reliability; the second case depends on a factual determination of a witness's truthfulness; the third case revolves around not a factual determination but, rather, a legal determination regarding the applicability of a …

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