Criminal Law Commons^™

Shtanger V. Speaker Of The Knesset, Asher Grunis, Hanan Melcer, Elyakim Rubinstein

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

A petition which focuses on the question of the legality of two arrangements in the Criminal Procedure (Enforcement Powers – Detention) Law, 5756-1996 (hereinafter: the "Detention Law") which were added to the Detention Law, in the framework of Amendment no. 8 to the Law, which was legislated by the Knesset on March 14. 2011. The first arrangement amends Section 53 of the Detention Law. …

Protecting Juveniles' Right To Remain Silent: Dangers Of The Thompkins Rule And Recommendations For Reform, Lauren Gottesman

Cardozo Law Review

No abstract provided.

The Plea-Bargain Crisis For Noncitizens In Misdemeanor Court, Jason A. Cade

Cardozo Law Review

This Article considers three factors contributing to a plea-bargain crisis for noncitizens charged with misdemeanors: 1) the expansion of deportation laws to include very minor offenses with little opportunity for discretionary relief from removal; 2) the integration of federal immigration enforcement programs with the criminal justice system; and 3) the institutional norms in non-federal lower criminal courts, where little attention is paid to evidence or individual equities and where bail and other process costs generally outweigh perceived incentives to fight charges. The Article contends that these factors increase the likelihood that a noncitizen's low-level conviction will not reliably indicate guilt …

Victim Participation At The Icc For Victims Of Gender-Based Crimes: A Conflict Of Interest?, Solange Mouthaan

Cardozo Journal of International and Comparative Law

The International Criminal Court (ICC) faces significant challenges in implementing victim participation as mandated by the Rome Statute, particularly in cases involving gender-based crimes. While victim participation is a groundbreaking feature of the ICC, its current system is overly burdensome, inconsistent, and ineffective, undermining the Court's core purposes of retribution, deterrence, and restorative justice. The ICC's reliance on state contributions for reparations and its failure to prosecute gender-based crimes vigorously further exacerbate these issues, raising concerns about fairness and efficiency in international criminal justice.

The Political Question Doctrine In Private Military Company Liability Cases: Defining Claims To Ensure Accountability, Joelle D. Keypour

Cardozo Journal of International and Comparative Law

The note argues that the political question doctrine should be narrowly applied to private military companies (PMCs) to ensure accountability while preserving the separation of powers. It critiques the inconsistent application of the Baker v. Carr six-factor test in PMC cases, which often shields these entities from liability. The proposed solution is a dual classification system for claims—distinguishing between commercial-related and combat-related activities—to provide clarity and prevent abuse of the doctrine. This approach aims to balance judicial oversight with respect for executive authority in sensitive military matters.

Undercover Policing, Overstated Culpability, Eda Katharine Tinto

Cardozo Law Review

This Article examines the legal doctrine of "sentencing manipulation," a claim, raised at the time of sentencing, in which the defendant argues that undercover police officers purposefully encouraged him to commit particular criminal conduct in order to expose him to a longer, and often mandatory, prison sentence. Currently, the claim of sentencing manipulation has no uniform definition or application and lacks a consistent animating theory. Based on traditional theories of punishment and the systemic interest in an accurate determination of a defendant's criminal culpability, this Article argues that inducements, used by undercover officers and their agents to encourage the suspect …

Challenging The Death Penalty With Statistics: Furman, Mccleskey, And A Single County Case Study, Steven F. Shatz, Terry Dalton

Cardozo Law Review

In the forty-year history of the Supreme Court's modern death penalty jurisprudence, two cases - Furman v. Georgia (1972) and McCleskey v. Kemp (1987) - stand out above all others. Both cases turned on the Court's consideration of empirical evidence, but they appear to have reached divergent - even altogether inconsistent - results. In Furman, the Court relied on statistical evidence that the death penalty was infrequently applied to death-eligible defendants to hold that the Georgia death penalty scheme was unconstitutional under the Eighth Amendment. In McCleskey, the Court, despite being presented with statistical evidence that race played …

"That's The Guy!": Federal Rule Of Evidence 801(D)(1)(C) And Out-Of-Court Statements Of Identification, Gilbert M. Rein

Cardozo Law Review

No abstract provided.

Quasi-Judicial Prosecutors And Post-Conviction Claims Of Innocence: Granting Recusals To Make Impartiality A Reality, Rachel Pecker

Cardozo Law Review

No abstract provided.

Tel Aviv-Jaffa District Commander V. Israel Internet Association, Uzi Vogelman, Asher Grunis, Noam Sohlberg

Translated Opinions

Facts: In August 2010, the Israel Police ordered major Israeli Internet access providers to block access to eight gambling websites operating outside the State of Israel. The orders were based on section 229 of the Penal Law that permits the District Police Commander to order the closure of any illegal gaming, lottery, or gambling place. The access providers complied with the orders and the Israel Internet Association petitioned the Administrative Affairs Court against the District Commander, contesting the closure, in the interests of Israeli web-users and the general public. The Internet access providers did not petition against the closure of …

Lafler And Frye: A New Constitutional Standard For Negotiation, Rishi Batra

Cardozo Journal of Conflict Resolution

The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." In 1984 the Supreme Court in Strickland v. Washington established the standard for ineffective assistance of counsel that is a violation of this right. In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye, the Supreme Court extended the holding in Strickland to cover ineffective assistance by defense counsel in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that "the negotiation …

The International Criminal Court Ten Years Later: Appraisal And Prospects, Joseph M. Isanga

Cardozo Journal of International and Comparative Law

The International Criminal Court (ICC) faces significant challenges in achieving its objectives of deterrence, retribution, and ending impunity, primarily due to slow procedures, lack of state cooperation, and perceptions of bias. While the ICC has made qualitative contributions to international criminal law, its effectiveness is undermined by procedural inefficiencies, political interference, and limited enforcement mechanisms. The court's reliance on the complementarity principle and state cooperation highlights the tension between its judicial and political roles, with its future success contingent on addressing these systemic issues.

Illuminating Corruption Pathways: Modifying The Fcpa's "Grease Payment" Exception To Galvanize Anti-Corruption Movements In Developing Nations, Ivan Perkins

Cardozo Journal of International and Comparative Law

The article argues that the Foreign Corrupt Practices Act (FCPA) should be modified to require companies to report "grease payments," small bribes intended to expedite routine government actions. This change aims to enhance transparency, align U.S. law with stricter international standards, and combat corruption more effectively. The proposal suggests that mandating disclosure of such payments to the Department of Justice (DOJ), which would then publish the information online, would help activists, journalists, and foreign governments identify and address corruption. While the article acknowledges potential challenges, such as companies circumventing reporting or facing reputational risks, it emphasizes the long-term benefits of …

American Criminal Procedure In A European Context, Mar Jimeno-Bulnes

Cardozo Journal of International and Comparative Law

The article examines the historical and contemporary distinctions between the accusatorial and inquisitorial criminal justice systems, tracing their evolution from common law and civil law traditions. It highlights the increasing convergence of these models, particularly the influence of the U.S. adversarial system on European procedures, while critiquing the practical challenges and inefficiencies of both systems. The analysis emphasizes the tension between procedural fairness and efficiency, urging reforms to address these issues.

Birthing “Cla”: Critical Legal Activism, The Ip Wars And Forking The Law, Victoria Smith Ekstrand, Andrew Famiglietti, Suzanne V.L. Berg

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Protecting The Innocent - The Need To Adapt Federal Asset Forfeiture Laws To Protect The Interests Of Third Parties In Digital Asset Seizures, Elizabeth Friedler

Cardozo Arts & Entertainment Law Journal

No abstract provided.

What's Law Got To Do With It?: Why We Should Mediate, Rather Than Litigate, Cases Of Wrongful Life, Shawna Benston

Cardozo Journal of Conflict Resolution

In light of the legal and societal disfavor toward wrongful life suits, this Note examines the cultural, (bio)ethical, legal, and philosophical background of the wrongful life tort. While the disability rights movement and the pro-life strains of the abortion debate hope to silence proponents of wrongful life suits, the evolution of a legal right to die underscores the importance of autonomy and privacy for the individual. Philosophical exploration of prospective children-including the nonidentity problem, claim-rights and corresponding duties, and the subjunctive-threshold notion of harmhelps explain the confusion and moral conundrum that pervade the very notion of "wrongful life" and that …

Panel Ii: Critical Legal Activism And Netroots Movements, Victoria Smith Ekstrand, Brett Frischmann, John Tehranian, Siva Vaidhyanathan

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Caught In A Bind: Reassuring Judicial Authority To Bind Non-Party Search Engines Under Rule 65 In Counterfeit Goods Cases, Courtney Brown

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Expanding Rape Shield Laws: Breaking Through Prejudice For Better Protection Of Battered Women, Sarah C. Ayres

Cardozo Journal of Equal Rights & Social Justice

The article argues for the expansion of rape shield laws to civil cases involving orders of protection, asserting that the exclusion of evidence regarding consensual sex between a victim and her abuser is crucial to counteract prejudicial stereotypes and provide better legal protection for battered women.

Criminalization In Shades Of Color: Prosecuting Pregnant Drugaddicted Women, Carla-Michelle Adams

Cardozo Journal of Equal Rights & Social Justice

The article argues that criminalizing pregnant women for drug use is both unconstitutional and ineffective. It contends that such prosecutions infringe upon fundamental rights, disproportionately affect minority women, and fail to address the root causes of addiction. The author advocates for a public health approach, emphasizing treatment over punishment to protect both the mother and the fetus.

Finding The Proper Measure For Conditions Of Pretrial Confinement, Alexander A. Reinert

Articles

Comment in response to Catherine T. Struve, The Conditions of Pretrial Detention, 161 U. Pa. L. Rev. 1009 (2013).

A Power And A Duty: Prosecutorial Discretion And Obligation In United States Sentencing Guideline § 3e1.1(B), Laura Waters

Cardozo Law Review

No abstract provided.

State V. Makor Rishon Hameuhad (Hatzofe) Ltd., Elyakim Rubinstein, Isaac Amit, Uzi Vogelman

Translated Opinions

Facts:  A violent demonstration took place at the Ephraim District Brigade Headquarters on the night of 12/13 December 2011. A photographer, who had been invited by one of the participants, was present taking photographs. The police sought an order, pursuant to section 43 of the Criminal Procedure Ordinance, requiring the photographer and her newspaper to produce the photographs. The photographer and newspaper refused, arguing that the photographs would provide information that could identify the photographer’s source, and were thus protected by the journalist’s privilege. The magistrate court applied the Citrin test and rejected the privilege claim. The district court distinguished …

Notice-And-Comment Sentencing, Richard A. Bierschbach, Stephanos Bibas

Articles

The article argues that criminal sentencing, often perceived as a singular, justice-focused moment, is in reality a complex, fragmented process heavily influenced by prosecutorial discretion and plea bargaining. It contends that public participation, inspired by principles of administrative law, could enhance the fairness, transparency, and legitimacy of sentencing and related processes, such as charging and plea bargaining. By integrating public input and structured decision-making, the criminal justice system could better align with democratic values and address systemic disparities.

Due Process And The Post-Padilla Landscape: Balancing The Severity Of Deportation As A Collateral Consequence With A Court's Traditionally Narrow Obligation In Accepting A Plea, Orrie A. Levy

Cardozo Public Law, Policy & Ethics Journal

The article examines the implications of the Supreme Court's decision in Padilla v. Kentucky, which established that defense attorneys must inform defendants of the immigration consequences of a guilty plea under the Sixth Amendment. It explores the tension between the Sixth Amendment right to effective assistance of counsel and the Fifth Amendment due process obligations of trial courts, highlighting that while Padilla mandates attorney advice on immigration consequences, courts are not required to inform defendants of such consequences. The article argues against extending due process obligations to include severe collateral consequences, emphasizing the impracticality of requiring courts to foresee …

Neuroscience, Ptsd, And Sentencing Mitigation, Betsy J. Grey

Cardozo Law Review

No abstract provided.

Who Watches The Watchmen? Big Brother's Use Of Wiretap Statutes To Place Civilians In Timeout, Travis S. Triano

Cardozo Law Review

No abstract provided.

Almaliach V. State, Edna Arbel, Zvi Zylbertal, Uzi Vogelman

Translated Opinions

Facts: The appellant was convicted of the crimes of carrying a weapon, intimidation, and possession of stolen property. The indictment charged that in the early morning hours of December 2, 2006, in the city of Ashdod, the appellant carried a stolen grenade into a building in which the Biton family resided, and then taped the grenade to a piece of cardboard which he then taped to the Biton family‘s front door, leaving a string tied to the grenade‘s safety mechanism. He ran away after a family member woke up and opened the door. The indictment was based on DNA evidence …

The Legacy Of Rux V. Republic Of Sudan And The Future Of The Judicial War On Terror, Chad G. Marzen

Cardozo Public Law, Policy & Ethics Journal

The article examines the legal battles of the families of U.S. sailors killed in the 2000 U.S.S. Cole bombing, focusing on their efforts to hold Sudan liable under the Foreign Sovereign Immunity Act (FSIA) and the state sponsor of terrorism exception. It explores the procedural history of the Rux and Kumar cases, highlighting the complexities of applying the FSIA and the impact of legislative changes, such as the National Defense Authorization Act (NDAA) 2008, on terrorism-related litigation. The analysis underscores the challenges in balancing judicial authority with legislative intent, particularly in cases involving retroactivity and res judicata.