Criminal Law Commons^™

Security Council Resolution 1820: An Imperfect But Necessary Resolution To Protect Civilians From Rape In War Zones, Melissa Goldenberg Goldstoff

Cardozo Journal of Equal Rights & Social Justice

The note examines the significance and limitations of UN Security Council Resolution 1820, which recognizes rape as a war crime and a threat to international security. While the Resolution is a crucial step forward in protecting women during armed conflicts, it is argued to be imperfect due to its incomplete implementation mechanisms and potential to undermine earlier resolutions like Resolution 1325, which emphasizes women's roles in peace-building.

Bringing Our Kids Home: International Parental Child Abduction & Japan's Refusal To Return Our Children, Robin S. Lee

Cardozo Journal of Equal Rights & Social Justice

The note examines Japan's refusal to ratify the Hague Convention on the Civil Aspects of International Child Abduction, highlighting how this decision creates a legal haven for parental child abductions. It explores the cultural, legal, and systemic factors in Japan that facilitate these abductions and the challenges faced by foreign parents in retrieving their children. The note also discusses potential solutions and international efforts to pressure Japan into adhering to the Convention.

The Geography Of Criminal Law, Adam Benforado

Cardozo Law Review

When Westerners explain the causes of actions or outcomes in the criminal law context, they demonstrate a strong tendency to overestimate the importance of dispositional factors, like thinking, preferring, and willing, and underestimate the impact of interior and exterior situational factors, including environmental, historical, and social forces, as well as affective states, knowledge structures, motives, and other unseen aspects of our cognitive frameworks and processes. One of the situational factors that we are particularly likely to overlook is physical space - that is, landscapes, places, natures, boundaries, and spatialities. Our shortsightedness comes at a great cost. Spatial concerns shape legal …

Suspicionless Laptop Searches Under The Border Search Doctrine: The Fourth Amendment Exception That Swallows Your Laptop, Ari B. Fontecchio

Cardozo Law Review

No abstract provided.

The Future For Collected Prosecutorial Evidence At The International Criminal Tribunal For Rwanda, Gerda Visser

Cardozo Public Law, Policy & Ethics Journal

The article focuses on the International Criminal Tribunal for Rwanda (ICTR) and its Office of the Prosecutor (OTP), emphasizing the need to balance the preservation of sensitive information with the public's right to access historical records. It highlights the ICTR's role in developing international criminal law standards and the challenges of managing its vast archive, particularly regarding witness protection, privacy, and future prosecutions. The article proposes establishing an international judicial archive with a legal reviewing body to oversee access to the OTP database, ensuring transparency while safeguarding sensitive data.

The Price Of Pictures, Lucille A. Roussin

Cardozo Public Law, Policy & Ethics Journal

The article explores the significant increase in the value of art since World War II, highlighting the evolution of the art market and the complexities surrounding the restitution of looted artworks. It examines the growth of the art market through specific examples, such as the sales of high-value paintings, and discusses the legal and emotional challenges of recovering artworks stolen during the Holocaust.

Towards A More Reasonable Approach To Free Will In Criminal Law, Stephen O'Hanlon

Cardozo Public Law, Policy & Ethics Journal

This paper questions criminal law's strong presumption of free will. Part I assesses the ways in which environment, nurture, and society influence human action. Part II briefly surveys studies from the fields of genetics and neuroscience which call into question strong assumptions of free will and suggest explanations for propensities toward criminal activity. Part III discusses other "causes" of criminal activity including addiction, economic deprivation, gender, and culture. In light of Parts I through III, Part IV assesses criminal responsibility and the legitimacy ofpunishment. Part V considers the possibility of determiningpropensity for criminal activity based on assessing causal factors and …

Catching Up: The Need For New York State To Amend Its Juvenile Offender Law To Reflect Psychiatric, Constitutional And Normative National Trends Over The Last Three Decades, Michelle Haddad

Cardozo Public Law, Policy & Ethics Journal

The note argues that New York's Juvenile Offender Law of 1978 is outdated and in need of reform. Enacted in response to a tragic crime, the law shifted juvenile justice from rehabilitation to punishment, allowing children as young as 13 to be tried as adults. However, advancements in psychological understanding of adolescent brain development, constitutional rulings, and international trends emphasize the need for a more nuanced, rehabilitative approach. The note advocates for amending the law to reflect these developments and prioritize individualized consideration of juvenile cases.

Why Is Torture "Different" And How "Different" Is It?, Sherry F. Colb

Cardozo Law Review

Almost every serious commentator to address the moral and legal question of torture has taken for granted the proposition that the infliction of torture is a sufficiently grave evil to require a distinctly demanding moral scrutiny, one that categorically sets torture apart from other terrible things (including killing) that human beings do to one another. To borrow from the Supreme Court's death penalty jurisprudence, most people agree that torture is "different."

Under the Eighth Amendment, the fact that death is different does not rule out its application; it simply alters the relevant procedural and substantive standards. By contrast, many scholars …

Revisiting The Un Protocol On Human Trafficking: Striking Balances For More Effective Legislation, Kalen Fredette

Cardozo Journal of International and Comparative Law

Human trafficking is a growing global criminal concern. This paper assesses several national and multi-national efforts to combat human trafficking, focusing particularly on the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Protocol). Ultimately, the rise in trafficking offenses compared to the sparse number of convictions strongly suggests the inadequacy of the national and multinational efforts currently in play. This paper will take a fresh look at key provisions of the recent Protocol in light of newly published data on trafficking, and will explore possible modifications to the instrument which may increase its effectiveness. …

The Gaelic Goetz: A Case Of Self-Defense In Ireland, Stacy Caplow

Cardozo Journal of International and Comparative Law

For two years, the name Padraig Nally was a household word in Ireland. Nally killed an intruder on his farm in a rural community by shooting him in the back as he was running away, already injured from a brutal beating. The intruder was a Traveller, a minority group in Ireland that is mistrusted and ostracized. The killing was so far from the paradigmatic self-defense claim that the trial judge refused to instruct the jury on a full justification defense. Indicted for murder, Nally was convicted of manslaughter under a doctrine in Ireland called 'excessive force.' After the appeals court …

Defensive Mechanism: A Father's Right To Defend The Unborn, Lawrence Estrada

Cardozo Journal of Equal Rights & Social Justice

The note examines the Michigan Court of Appeals' decision in Kurr, which recognized a father's right to defend his unborn children under the defense of others doctrine, citing Michigan's fetal homicide law. This ruling extends legal protections to fetuses while maintaining exceptions for lawful abortions, reflecting broader shifts in legal and public policy toward fetal protection. The decision highlights the tension between protecting unborn life and preserving women's reproductive rights, emphasizing the narrow application of the defense to avoid undermining abortion rights established by Roe v. Wade.

A Safe Haven For Nixzmary Brown, Chantal L. Hamlin

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

The Continuity Of Justification Defenses, Kyron J. Huigens

Articles

This Article presents a legal theory of legal justification. It examines the elements of offense definitions and justification defensesor, more accurately, the conjunctions and disjunctions between these elements-to resolve a longstanding issue in the theory of legal punishment. The unjustified actor who believes she is justified seems to deserve an acquittal, while the justified actor who does not know he is justified seems to deserve conviction. But we face a dilemma: we seem to have to acquit both or convict both. This Article shows a principled way to rule the mistakenly unjustified actor within, and the mistakenly justified actor out …

Eighth Amendment Gaps: Can Conditions Of Confinement Litigation Benefit From Proportionality Theory, Alexander A. Reinert

Articles

No abstract provided.

Theorizing About Self-Incrimination, Ronald J. Allen

Cardozo Law Review

No abstract provided.

Self-Incrimination In European Human Rights Law - A Pregnant Pragmatism?, Andrew Ashworth

Cardozo Law Review

No abstract provided.

Toward Ethical Plea Bargaining, Erica Hashimoto

Cardozo Law Review

No abstract provided.

Self-Incrimination Doctrine Is Dead; Long Live Self-Incrimination Doctrine: Confessions, Scientific Evidence, And The Anxieties Of The Liberal State, Kenworthey Bilz

Cardozo Law Review

Confessions have historically been the most compelling evidence the state could offer at a criminal trial. However, improvements in forensic technologies have led to increased use of scientific evidence, such as DNA typing, videotapes, pattern-recognition software, location tracking devices, and the like, with very impressive rates of reliability. The reliability of these methods has become so impressive, in fact, that it far outstrips confessions. This should lead to a reduced reliance on confessions (and other nonscientific evidence, such as eyewitness identifications) over time. However, this does not mean that the doctrine of self-incrimination, which regulates the acquisition and use of …

Deregulating Guilt: The Information Culture Of The Criminal System, Alexandra Natapoff

Cardozo Law Review

The criminal system has an uneasy relationship with information. On the one hand, the criminal process is centrally defined by stringent evidentiary and information rules and a commitment to public transparency. On the other, largely due to the dominance of plea bargaining, criminal liability is determined by all sorts of unregulated, non-public information that never pass through the quality control of evidentiary, discovery, or other criminal procedure restrictions. The result is a process that generates determinations of liability that are often unmoored from systemic information constraints. This phenomenon is exemplified, and intensified, by the widespread use of criminal informants, or …

English Warnings, Mike Redmayne

Cardozo Law Review

No abstract provided.

The Right To Silence Helps The Innocent: A Response To Critics, Alex Stein

Cardozo Law Review

This Article responds to the numerous critics of Daniel J Seidmann & Alex Stein, The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege, 114 HARV. L. REV. 430 (2000). Under Seidmann and Stein's theory, the right to silence protects innocents who find themselves unable to corroborate their self-exonerating accounts by verifiable evidence. Absent the right, guilty criminals would pool with innocents by making false self-exonerating statements. Factfinders would consequently discount the probative value of all uncorroborated exculpatory statements, at the expense of those innocents who cannot corroborate their true accounts. The right to …

Corporate Confessions, Brandon L. Garrett

Cardozo Law Review

In corporate crime investigations, when prosecutors pursue charges against both employees and corporations, confessions raise several novel questions without clear answers in constitutional criminal procedure. First, corporations confess. The firm, a target of a criminal investigation, may itself admit to crimes by employees as part of a settlement agreement with prosecutors. While useful to study in their impact and form, as a constitutional matter such confessions can not be coerced, the Supreme Court has adopted a "collective entity rule" that corporate persons may not invoke Fifth Amendment privilege. Second, before itself confessing, the firm may encourage employees to provide statements …

The Consequences Of Compelled Self-Incrimination In Terrorism Investigations: A Comparison Of American Grand Juries And Canadian Investigative Hearings, Kent Roach

Cardozo Law Review

No abstract provided.

Introduction: Wherefor The Privilege?, Kate Stith

Cardozo Law Review

No abstract provided.

Self-Incrimination And The Epistemology Of Testimony, Michael S. Pardo

Cardozo Law Review

The Supreme Court's limitation of the privilege against self-incrimination to evidence of a testimonial nature has been controversial. The doctrinal reliance on a distinction between physical and testimonial evidence has proven difficult to apply in practice, and it has been criticized as being descriptively inaccurate, analytically incoherent, and normatively indefensible. This article offers a defense of the distinction on epistemological grounds. The philosophical focus on testimony as a source of knowledge provides some insight into what makes testimony distinct as an epistemic source. These considerations are used to provide a coherent and principled way to distinguish what evidence to treat …

The Sixth Amendment And Criminal Sentencing, Stephanos Bibas, Susan Klein

Cardozo Law Review

This symposium essay explores the impact of Rita, Gall, and Kimbrough on state and federal sentencing and plea bargaining systems. The Court continues to try to explain how the Sixth Amendment jury trial right limits legislative and judicial control of criminal sentencing. Equally important, the opposing sides in this debate have begun to form a stable consensus. These decisions inject more uncertainty in the process and free trial judges to counterbalance prosecutors. Thus, we predict, these decisions will move the balance of plea bargaining power back toward criminal defendants.

Rights Without Remedy: The Myth Of State Court Accessibility After The Prison Litigation Reform Act, Alison Brill

Cardozo Law Review

No abstract provided.

The Constitutionality Of Court-Martialing Civilian Contractors In Iraq, Margaret Prystowsky

Cardozo Public Law, Policy & Ethics Journal

The article examines the legal implications of outsourcing military functions to private contractors, focusing on the accountability gap under the Uniform Code of Military Justice (UCMJ). It argues that recent amendments to the UCMJ, particularly the expansion of court-martial jurisdiction over civilian contractors during declared wars and contingency operations, address this gap. The analysis concludes that these changes are constitutionally sound, given Congress's authority under Article I, Section 8, and align with legal precedent. However, the article also highlights practical challenges, such as prosecutorial discretion and limited penalties, which may undermine the effectiveness of these reforms.

Confessing In The Human Voice: A Defense Of The Privilege Against Selfincrimination, Andrew E. Taslitz

Cardozo Public Law, Policy & Ethics Journal

The Fifth Amendment privilege against self-incrimination is a cornerstone of American constitutional law, yet it faces erosion through recent Supreme Court rulings and scholarly critiques. The article presents a novel defense of this privilege, focusing on the protection of the "literal voice" and "metaphorical voice," arguing that compelled speech uniquely harms dignity, identity, and autonomy. It critiques existing justifications as insufficient and proposes a framework rooted in social science and linguistic compulsion, emphasizing the privilege's role in preventing state overreach and safeguarding individual autonomy.