Criminal Law Commons^™

Are Police Obsolete? Breaking Cycles Of Violence Through Abolition Democracy, V. Noah Gimbel, Craig Muhammad

Cardozo Law Review

On February 5, 2018, Baltimore activists organized a successful "cease-fire weekend," during which no one was killed-and the cops were not to thank. Indeed, as community anti-violence organizers worked to cool hot feuds in order to prove that endless violence was not their destiny, the Baltimore Police Department was sinking ever-deeper into perhaps the most shocking police corruption scandal of the twenty-first century.

The stark contrast between ordinary city residents risking their safety to fight against violence in their community and a corrupt police force committing and propagating acts of violence in the microcosmic streets of Baltimore raises what may …

Re-Examining Custody And Incarceration Requirements In Postconviction Dna Testing Statutes, Ian J. Postman

Cardozo Law Review

Part I describes the history of custody and incarceration requirements in PC DNA testing statutes, as well as the interaction between those requirements and state sex offender registration acts. Part II analyzes a number of custody and incarceration requirements across various states. Part III proposes the elimination of custody requirements from PC DNA testing statutes and rebuts concerns about removing these requirements. Ultimately, this Note argues that custody and incarceration requirements specifically harm those who have been wrongly convicted of sex offenses, and the requirements' fundamental incongruity with the goals of PC DNA testing support their complete elimination from PC …

Defending White Space, Addie C. Rolnick

Cardozo Law Review

Police violence against minorities has generated a great deal of scholarly and public attention. Proposed solutions-ranging from body cameras to greater federal oversight to anti-bias training for police-likewise focus on violence as a problem of policing. Amid this national conversation, however, insufficient attention has been paid to private violence. This Article examines the relationship between race, self-defense laws, and modern residential segregation. The goal is to sketch the contours of an important but undertheorized relationship between residential segregation, private violence, and state criminal law. By describing the interplay between residential segregation and modern self-defense law, this Article reveals how criminal …

Pretext And Justification: Republicanism, Policing, And Race, Ekow N. Yankah

Cardozo Law Review

On April 4, 2015, Police Officer Michael Slager gunned down Walter Scott in North Charleston, South Carolina with a cool that resembled target practice. Scott's name joined a heartbreaking list of men of color killed by unjustified police violence. The video of the incident also broadcast to the world the spectacular violence always lurking beneath the surface of daily interactions between police and men of color.

The "Black Lives Matter" movement has fiercely insisted Scott's death not be viewed as an isolated incident but understood as woven into the fabric of American policing. American policing harms individual people of color, …

Familial Searching: How Implementing Minimum Safeguards Ensures Constitutionally-Permissible Use Of This Powerful Investigative Tool, Alexandra Nieto

Cardozo Law Review

This Note supports the adoption of Familial DNA Search Policies. by states that have not yet taken a position on the issue. Part I of this Note provides background on the role of Familial Searches in criminal investigations. This includes a discussion on the nature of Familial Searches, why they are useful, and the current state of the law. Part I also considers the different guidelines and protections in existing Familial Search Policies, as well as states' policies regulating their DNA databases. Part II discusses the Fourth Amendment and equal protection concerns implicated by Familial Searches and how a court …

Custodial Compulsion, Kyron J. Huigens

Articles

In cases that fall under Miranda v Arizona, police interrogators not only give a suspect reasons to confess; they also suggest that the suspect ought to confess. In doing so, interrogators effectively invoke the Wigmorean duty of a citizen to produce any evidence he has in his possession, including his own confession. That is, they invoke the duty against which the Self Incrimination Clause stands, so that the clause is applicable to police interrogations, and is violated where it is not waived. This means that “a Miranda violation” is a violation of the Self Incrimination Clause in the field, just …

Taking Data, Michael C. Pollack

Articles

Technological development has created new forms of information, altered expectations of privacy, and given law enforcement more tools to examine that information and intrude on that privacy. One crucial facet of these changes involves internet service providers (ISPs): as people expose more of their lives to their ISPs—all the websites they visit, people they communicate with, emails they send, files they store, and more—law enforcement efforts to access that data become more and more common. But scholars and policymakers alike recognize that the existing statutory frameworks governing those efforts are based on obsolete technology and strike balances that are difficult …

2018 Camp Courthouse Colloquy, United States Court Of Appeals For The Second Circuit: The Art Of Mediating Intractable Disputes, George J. Mitchell

Cardozo Journal of Conflict Resolution

In 1974, the Civil Appeals Mediation Program ("CAMP") was established in the Second Circuit of the United States Court of Appeals as a pioneering initiative. CAMP is an integral part of the court's appellate process and provides mediation in suitable, counseled civil appeals that are eligible under Local Rule 33.1. In 2017, CAMP inaugurated the Courthouse Mediation Colloquy series to gather members of the judiciary, members of the bar, mediators, academics, and students in an informal, educational setting. The Colloquy features a distinguished guest engaging in a conversation with a representative of the court about aspects of mediation that are …

Judicial Conflict Resolution In Plea Bargaining As The Golden Mean Between The Adversarial And Inquisitorial Legal Systems, Golan Luzon

Cardozo Journal of Conflict Resolution

This article seeks to develop a better understanding of plea bargaining as a mechanism of judicial conflict resolution in criminal law. Plea bargaining plays a significant role in both the adversarial and inquisitorial legal systems. The article examines how the plea-bargaining model is designed in both legal systems by comparing two civil law countries (Italy and Germany) with two common law countries (England and Wales and the U.S.). I argue that two developments-a mechanism similar to plea bargaining in inquisitorial systems and judges' participation in the criminal plea bargaining negotiations in adversarial legal systems-are part of the same phenomenon seeking …

Elder Restorative Justice, Mary Helen Mcneal, Maria Brown

Cardozo Journal of Conflict Resolution

This article explores the viability of utilizing restorative principles to address elder abuse and recommends the continuing implementation of an "elder restorative justice" paradigm. Part I describes the widespread problem of elder exploitation and possible reasons for it, and Part II outlines current strategies to address it. Part III offers an overview of restorative principles, with a description of selected models. In Part IV, this paper reviews restorative approaches currently addressing elder abuse, and their benefits and challenges. Part V analyzes the applicability of the restorative models outlined above to the elder abuse context, assessing the most effective options for …

The Illicit Antiquities Trade As A Funding Source For Terrorism: Is Blockchain The Solution?, Taylor Moskowitz

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Cyberbullying: Are You Protected? An Analysis And Guide To Effective And Constitutional Cyberbullying Protections, Mendel Forta

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Blood Antiquities Convention As A Paradigm For Cultural Property Crime Reduction, Derek Fincham

Cardozo Arts & Entertainment Law Journal

In 2017, the Council of Europe opened for signature the first ever international treaty aimed at policing cultural property. As more attention has been paid to the damage done by the theft, looting, and illicit trafficking of cultural objects, the Council of Europe has met this challenge with an ambitious convention, which aims to fill gaps in the current criminal laws. These gaps have too often been exploited by individuals in the illicit antiquities trade. The author had an opportunity to present his analysis of a draft version of the Council of Europe's Convention at a meeting held in Lucca, …

A Review Of The Wrongful Convictions Reader: A Comprehensive Resource For Students, Faculty, And Practitioners, Stephanie Roberts Hartung

Cardozo Law Review de•novo

Professor Stephanie Roberts Hartung reviews The Wrongful Convictions Reader, a 2019 book by Russell D. Covey and Valena E. Beety.

Effective Assistance Of Counsel? An Empirical Study Of Defense Attorneys’ Decision-Making In False-Confession Cases, Sara C. Appleby, Hadley R. Mccartin

Cardozo Law Review de•novo

Although there is considerable literature on the causes of false confessions and the effects confession evidence has on juror decision-making, little research has examined attorneys’ decision-making in disputed confession cases. As the intervening step between when the confession is elicited and the case is resolved, it is crucial that research examine effects of confession evidence on this population. The current studies investigate defense attorneys’ knowledge and perception of key interrogation and confession issues as well as their decision-making in a disputed confession case. Overall, results show that defense attorneys are knowledgeable about key interrogation and confession issues and are aware …

Long Term Effects Of Involvement In The Criminal Justice System: Mitigating Collateral Consequences & Tackling Voter Disenfranchisement, Symposium Session 1, Wesley Caines, Lucy Cutolo, Kendea Johnson

Cardozo Journal of Equal Rights & Social Justice

The symposium examines the long-term effects of involvement in the criminal justice system, focusing on collateral consequences and voter disenfranchisement. It emphasizes the need for both prosecutors and defense attorneys to address these consequences early in criminal cases, as they significantly impact individuals' lives beyond direct legal penalties. The discussion highlights the importance of holistic approaches to mitigate these effects and advocates for systemic changes to reduce disparities and support successful reintegration into society.

Reconstructing The Rule Of Lenity, David S. Romantz

Cardozo Law Review

No abstract provided.

Conspiracy: Contemporary Gang Policing And Prosecutions, Keegan Stephan

Cardozo Law Review

Part I of this Note reviews gang policing before Morales, explains the vagueness, equal protection, and policy and custom doctrines that helped shape gang policing, and details the practices of contemporary gang policing. Part II argues that contemporary gang policing violates equal protection under the innovative showing of discriminatory intent found in Floyd v. City of New York, and that contemporary gang policing violates both prongs of the vagueness doctrine when viewed in its totality-at least where it is proscribed by statute. Part III notes that the vagueness doctrine has historically been applied only to statutory law and …

Prosecuting Chinese "Spies": An Empirical Analysis Of The Economic Espionage Act, Andrew Chongseh Kim

Cardozo Law Review

No abstract provided.

Emoji: The Other Tech Monopoly, Edward T. Brawley

Cardozo International & Comparative Law Review

No abstract provided.

Is Natural Law A Public Good?, Eliot T. Tracz

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Mission To Dismiss: A Dismissal Of Rule 12(B)(6) And The Retirement Of Twombly/Iqbal, Victor Marrero

Cardozo Law Review

No abstract provided.

Criminal Employment Law, Benjamain Levin

Cardozo Law Review

This Article diagnoses a phenomenon, "criminal employment law," which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with …

The Institutions Of Innocence Review: A Comparative Sociological Perspective, Jessica A. Roth

Articles

The last three decades have seen the rise of an international innocence movement that has forced participants in diverse criminal justice systems to confront their systems’ fallibility, previously thought more theoretical than real. The public acknowledgment of that fallibility has led to the creation of new institutional mechanisms to re-examine old convictions. This short essay prepared for a symposium issue of the Rutgers University Law Review on the theory of criminal law reform compares the error correction institutions created in the United Kingdom, Canada, and the United States, three English-speaking countries with common law roots and an adversarial structure, through …

Framed By Forensics: Fulfilling Daubert's Gatekeeping Function By Segregating Science From The Adversarial Model, Kayla Marie Mannucci

Cardozo Law Review

The note argues that flawed forensic expert testimony significantly contributes to wrongful convictions, undermining the criminal justice system's objective to acquit the innocent. It highlights how partisan bias, lack of scientific validation, and inadequate judicial gatekeeping under Daubert v. Merrell Dow Pharmaceuticals, Inc. have led to the admission of unreliable forensic evidence. The note proposes a reform: requiring neutral, court-appointed experts in high-stakes forensic cases to ensure objective testimony and prevent partisan bias.

Rape In Context: Lessons For The United States From The International Criminal Court, Caroline Davidson

Cardozo Law Review

The law of rape is getting a rewrite. Domestically and internationally, major efforts are underway to reform rape laws that have failed to live up to their promises of seeking justice for victims and deterring future sexual violence. The cutting edge of international criminal law on rape eschews inquiries into consent and instead embraces an examination of coercion or a coercive environment. By contrast, in the United States, rape reform discussions typically center on consent. The American Law Institute's proposed overhaul of the Model Penal Code's provision on sexual assault carves out a middle ground and introduces, in addition to …

Admissibility Of First Time In-Court Eyewitness Identifications: An Argument For Additional Due Process Protections In New York, Dakota Kann

Cardozo Law Review

No abstract provided.

Access To Justice: Accelerating The Abandonment Of Fgm/C, Gretchen Kail

Cardozo Journal of Conflict Resolution

This Note discusses the role comprehensive legislation traditionally plays through a top-down approach and proposes the use of bottom-up approaches to better leverage national laws and new legal norms to support collective societal action. The discussion views legislation and FGM/C through a social norm lens: "a comprehensive, multi-sectorial, culturally sensitive approach that incorporates a social perspective to impact collective change."

Section II of this Note defines FGMIC as a health issue, a human rights violation, and a social norm. Section III discusses relevant international and regional human rights frameworks; state obligations; divergent views on the effects and usefulness of national …

The Devil's Advocate Also Wears Prada: The Impracticality Of Adr In Counterfeiting Disputes And The Prospect Of Arbitration, Anan Kahari

Cardozo Journal of Conflict Resolution

The purpose of this Note is to posit that arbitration, tailored for counterfeiting disputes, could potentially serve as a reliable method for fashion companies to combat counterfeiting. Part II discusses the background of IP rights and the relationship between counterfeiting and fashion. Part III highlights the traditional advantages of ADR and how some of those advantages may become disadvantages when applied to counterfeiting disputes. Lastly, Part IV argues that arbitration can be designed to be applicable to counterfeiting disputes described in this Note.

The Unexpected Scope Of The Cfaa: And How Netflix Users Could Be Committing A Federal Crime, Michael Levy

Cardozo International & Comparative Law Review

The Ninth Circuit's broad interpretation of the Computer Fraud and Abuse Act (CFAA) in United States v. Nosal II criminalizes everyday activities like password sharing, undermining the Act's original purpose to prevent hacking. The court ruled that accessing a computer after authorization has been revoked constitutes a violation, even if the access is for innocuous purposes. This interpretation disproportionately benefits large service providers, allowing them to suppress legitimate user claims and exposing millions of Americans to potential prosecution for common online practices.