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Articles 121 - 150 of 204
Full-Text Articles in Criminal Law
Resisting Unlawful Arrest: A Due Process Perspective, Penn Lerblance
Resisting Unlawful Arrest: A Due Process Perspective, Penn Lerblance
Cleveland State Law Review
To resist arrest is a crime. But is it a crime if the arrest resisted is unlawful? More particularly, is a lawful arrest an issue in a trial for resisting arrest? This inquiry invokes the constitutional due process problem of proof illustrated in Hoover v. Garfield Heights Municipal Court, decided in September 1986 by the United States Court of Appeals for the Sixth Circuit. Section II discusses the Hoover case, and then Section III delves into the issue of a right to resist an unlawful arrest. Section IV explains that an unlawful arrest is authorized when there is a legislative …
The Eighth Amendment And Capital Punishment Of Juveniles, Victor L. Streib
The Eighth Amendment And Capital Punishment Of Juveniles, Victor L. Streib
Cleveland State Law Review
The practice of imposing the death penalty for crimes committed while under the age of eighteen has occurred sporadically but persistently throughout American history. It gives every indication of continuing in this mode under current law and practice. Greatly differing approaches are followed by the various states as to the authorization and imposition of capital punishment for juveniles. This article explores the existence of a constitutionally-mandated minimum age below which the states may not venture in carrying out this practice. If such a nationwide minimum age exists or should exist, its justification can be found in current interpretations of the …
Islamic Law And The Crime Of Theft: An Introduction, David F. Forte
Islamic Law And The Crime Of Theft: An Introduction, David F. Forte
Cleveland State Law Review
This Article introduces the concept of theft in Islamic law. As such, it does not pretend to be comprehensive either in the data it puts forth or in its analysis. Rather, the Article raises a number of issues for discussion, and offers, most tentatively, suggested answers to the following points: 1) whether theft in Islamic law properly belongs to the species of manifest criminality; 2) what possible justifications exist for such an extreme penalty; 3) what were the requirements for conviction; and 4) some concluding observations as to why the classical jurists encumbered a prosecution for theft with so many …
Voluntary Manslaughter After Patterson: An Analysis Of Ohio Law, Margaret M. Higgins
Voluntary Manslaughter After Patterson: An Analysis Of Ohio Law, Margaret M. Higgins
Cleveland State Law Review
Ohio courts have struggled to divine the constitutional mandate of the reasonable doubt standard while simultaneously attempting to give a viable interpretation to the state's relatively new manslaughter law. Their approach has resulted in an unusual definition of manslaughter which has proven particularly unworkable. In addition, several other problems have developed as a result of the enactment of the manslaughter law. First, the policy espoused by the Supreme Court in its decisions has been abrogated under Ohio law. Second, Ohio law nearly abandons the distinction between murder and manslaughter. This is especially dangerous in light of the presumption of criminal …
Voluntary Manslaughter After Patterson: An Analysis Of Ohio Law, Margaret M. Higgins
Voluntary Manslaughter After Patterson: An Analysis Of Ohio Law, Margaret M. Higgins
Cleveland State Law Review
Ohio courts have struggled to divine the constitutional mandate of the reasonable doubt standard while simultaneously attempting to give a viable interpretation to the state's relatively new manslaughter law. Their approach has resulted in an unusual definition of manslaughter which has proven particularly unworkable. In addition, several other problems have developed as a result of the enactment of the manslaughter law. First, the policy espoused by the Supreme Court in its decisions has been abrogated under Ohio law. Second, Ohio law nearly abandons the distinction between murder and manslaughter. This is especially dangerous in light of the presumption of criminal …
Garland V. Herrin: Surviving Parents' Remedies For A Child's Wrongful Death - The Pecuniary-Loss Rule And Reckless Infliction Of Emotional Distress, Kathleen Keogh Miller
Garland V. Herrin: Surviving Parents' Remedies For A Child's Wrongful Death - The Pecuniary-Loss Rule And Reckless Infliction Of Emotional Distress, Kathleen Keogh Miller
Cleveland State Law Review
The parents of Bonnie Garland are only two of the innumerable third-party victims who have suffered from the wrongful death of a child. Because the "emotional distress" suffered by the Garlands was comprised of so many elements, the wrongful death of their child provides a framework for analyzing all the harms engendered within the term "emotional distress" and the availability of civil remedies for each of those "separable" harms. The tragedy of the Garlands will be used as a vehicle to assess the success of legislatures and courts in enacting and interpreting wrongful death statutes. The important question becomes whether …
Defending The Guilty, Barbara Allen Babcock
Defending The Guilty, Barbara Allen Babcock
Cleveland State Law Review
How can you defend a person you know is guilty? I have answered that question hundreds of times, never to my inquirer's satisfaction, and therefore never to my own. In recent years, I have more or less given up, abandoning the high-flown explanations of my youth, and resorting to a rather peevish: "Well, it's not for everybody. Criminal defense work takes a peculiar mind-set, heart-set, soul-set." While I still believe this, the mind-set might at least be more accessible through a better effort at explanation. First we will examine the nature of the question, then the possible answers. We must …
Fact Or Fiction: Mitigating The Death Penalty In Ohio, Daniel D. Domozick
Fact Or Fiction: Mitigating The Death Penalty In Ohio, Daniel D. Domozick
Cleveland State Law Review
The trial courts must issue written opinions whenever the death penalty is imposed. This Note will analyze opinions handed down since the enactment of the capital statute to ascertain whether the various mitigating factors adequately meet the concerns of Lockett. Part II contains a brief overview of Ohio's capital plan. The scope and interpretation of the mitigating factors should dominate future appellate decisions; thus, in Part III, four mitigating factors will be examined. In Part IV the treatment of the mitigating factors in the weighing process will be explored. The examination of the mitigating factors in the capital statute is …
Genetically-Influenced Antisocial Conduct And The Criminal Justice System, Lawrence E. Taylor
Genetically-Influenced Antisocial Conduct And The Criminal Justice System, Lawrence E. Taylor
Cleveland State Law Review
The trend of current genetic research is clear. Assuming the legal system is eventually presented with the scientific capability of "reading" DNA and the statistical ability of predicting with substantial accuracy the probable future consequences of aberrant genetic structure, some very difficult questions will be posed. How should the criminal justice system deal with a criminal offender whose conduct was caused by a genetic aberration? Does society have the right to seek out such individuals before they cause harm and remove them from the community?
Multiple Convictions Statute In Ohio: Has It Achieved Its Intended Result, Dale A. Nowak, Jeffrey A. Key
Multiple Convictions Statute In Ohio: Has It Achieved Its Intended Result, Dale A. Nowak, Jeffrey A. Key
Cleveland State Law Review
The Ohio Allied Offense Statute is a codification of the common law doctrine of merger and is the Ohio legislature's attempt to insulate criminal defendants from harsh and absurd punishment. This Article discusses the relationship of certain constitutional guarantees against multiple punishments to the Allied Offense Statute and the multiple punishment controversy in Ohio.
Capital Punishment In Ohio: Aggravating Circumstances, Elaine C. Hilliard
Capital Punishment In Ohio: Aggravating Circumstances, Elaine C. Hilliard
Cleveland State Law Review
The state of Ohio enacted a new death penalty statute which became effective October 19, 1981. As of January 18, 1983, eighty-three defendants had been indicted under the new statute. It is, therefore, both necessary and timely to evaluate Ohio's statutory delineation of who may die and its effect for compliance with constitutional mandates. This Note sets forth the hypotheses and supporting legal authority for analyzing Ohio's statutory aggravating circumstances individually and in the aggregate on equal protection and procedural due process grounds.
Why Substantive Criminal Law - A Dialogue, Sanford H. Kadish
Why Substantive Criminal Law - A Dialogue, Sanford H. Kadish
Cleveland State Law Review
In this dialogue, I have tried to address criticisms of the substantive criminal law, as a course and as a subject matter, made by a number of my students over several decades of teaching the subject. In away it is rather personal since it consists of the criticisms of my students and my apologia for what I have tried to do. That, however, would hardly be worth doing unless it is the case, as I believe it is, that these criticisms are widespread and that my responses speak to what is generally done in criminal law courses in this country.
A Practical Approach To Representation Of A Client During A Federal Antitrust Grand Jury Investigation, Carl L. Steinhouse
A Practical Approach To Representation Of A Client During A Federal Antitrust Grand Jury Investigation, Carl L. Steinhouse
Cleveland State Law Review
Generally, in white-collar crime situations, particularly antitrust, the first time a client may know he is under investigation is after the grand jury proceedings have commenced. The client will usually find out about the investigation through the industry grapevine, through the receipt of a subpoena by his employer or through a subpoena ad testificandum to an individual in his company. It is necessary for an attorney to understand the investigative process in order to properly represent his client in the antitrust proceedings that follow.
Why Substantive Criminal Law - A Dialogue, Sanford H. Kadish
Why Substantive Criminal Law - A Dialogue, Sanford H. Kadish
Cleveland State Law Review
In this dialogue, I have tried to address criticisms of the substantive criminal law, as a course and as a subject matter, made by a number of my students over several decades of teaching the subject. In away it is rather personal since it consists of the criticisms of my students and my apologia for what I have tried to do. That, however, would hardly be worth doing unless it is the case, as I believe it is, that these criticisms are widespread and that my responses speak to what is generally done in criminal law courses in this country.
A Practical Approach To Representation Of A Client During A Federal Antitrust Grand Jury Investigation, Carl L. Steinhouse
A Practical Approach To Representation Of A Client During A Federal Antitrust Grand Jury Investigation, Carl L. Steinhouse
Cleveland State Law Review
Generally, in white-collar crime situations, particularly antitrust, the first time a client may know he is under investigation is after the grand jury proceedings have commenced. The client will usually find out about the investigation through the industry grapevine, through the receipt of a subpoena by his employer or through a subpoena ad testificandum to an individual in his company. It is necessary for an attorney to understand the investigative process in order to properly represent his client in the antitrust proceedings that follow.
United States V. Sutton: The Sixth Circuit Curbs Abuse Of Rico, The Federal Racketeering Enterprise Statute, William Gorenc
United States V. Sutton: The Sixth Circuit Curbs Abuse Of Rico, The Federal Racketeering Enterprise Statute, William Gorenc
Cleveland State Law Review
The United States v. Sutton decision poses many questions. In a case where the presence of organized crime is evident, why did the majority so severely limit the anti-racketeering statute's application so that its target, organized crime, was beyond its purview? Also, why did the majority allow the confession of illegality to serve as a defense to liability under a criminal statute? Lastly, why did the majority hold contrary to five other circuits and require a showing of legitimacy where the statutory definition of "enterprise" does not specifically require it? This note will attempt to answer these questions. It will …
Misprision Of Antitrust Felony, Robert J. Hoerner
Misprision Of Antitrust Felony, Robert J. Hoerner
Cleveland State Law Review
When an attorney discovers clear evidence that his corporate client has committed an antitrust felony, he and his client are immediately confronted with an interrelated tangle of extraordinarily difficult questions. There has been much concern over these questions, particularly since violation of sections 1, 2 and 3 of the Sherman Act became indictable as felonies on December 21, 1974. Little has been written, however, on the misprision issue. Antitrust practitioners are not ordinarily trained in the contours of 18 U.S.C. § 4, the federal misprision statute. Our criminal practice is typically in rarified and antiseptic economic fields, and does not …
Controlling Firearms, John Kaplan
Controlling Firearms, John Kaplan
Cleveland State Law Review
One may ask why I am beginning a lecture entitled "Controlling Firearms" with analogies between drugs and alcohol. The reason is simple: I propose to draw an analogy between drugs and firearms. Part of the reason for this is that I have worked in the drug area for over a decade while my interest in guns is much more recent. In addition, the similarities in the way we discourse about drug control and about firearms control are striking. Finally, and most important, the issues with which we grapple in the drug control area may, on examination, turn out to be …
The Deterrent Effect Of The Death Penalty For Murder In Ohio: A Time-Series Analysis, William C. Bailey
The Deterrent Effect Of The Death Penalty For Murder In Ohio: A Time-Series Analysis, William C. Bailey
Cleveland State Law Review
One thing is abundantly clear from the analysis reported in this article: if Ohio is to reinstate capital punishment, its justification will have to be based upon grounds other than the deterrent effect of the death penalty for murder. Notwithstanding the opinion of some members of the United States Supreme Court, and possibly a majority of the Ohio House and Senate, the present analysis of Ohio's experience with capital punishment provides no justification for reinstating the death penalty as an effective means of dealing with the state's murder problem.
Misprision Of Antitrust Felony, Robert J. Hoerner
Misprision Of Antitrust Felony, Robert J. Hoerner
Cleveland State Law Review
When an attorney discovers clear evidence that his corporate client has committed an antitrust felony, he and his client are immediately confronted with an interrelated tangle of extraordinarily difficult questions. There has been much concern over these questions, particularly since violation of sections 1, 2 and 3 of the Sherman Act became indictable as felonies on December 21, 1974. Little has been written, however, on the misprision issue. Antitrust practitioners are not ordinarily trained in the contours of 18 U.S.C. § 4, the federal misprision statute. Our criminal practice is typically in rarified and antiseptic economic fields, and does not …
United States V. Sutton: The Sixth Circuit Curbs Abuse Of Rico, The Federal Racketeering Enterprise Statute, William Gorenc
United States V. Sutton: The Sixth Circuit Curbs Abuse Of Rico, The Federal Racketeering Enterprise Statute, William Gorenc
Cleveland State Law Review
The United States v. Sutton decision poses many questions. In a case where the presence of organized crime is evident, why did the majority so severely limit the anti-racketeering statute's application so that its target, organized crime, was beyond its purview? Also, why did the majority allow the confession of illegality to serve as a defense to liability under a criminal statute? Lastly, why did the majority hold contrary to five other circuits and require a showing of legitimacy where the statutory definition of "enterprise" does not specifically require it? This note will attempt to answer these questions. It will …
State V. Roberts: A Persuasive But Unsupported Position, Robert A. Boyd
State V. Roberts: A Persuasive But Unsupported Position, Robert A. Boyd
Cleveland State Law Review
The Ohio Supreme Court recently held in State v. Roberts that when a witness is unavailable at the trial of a criminal defendant, the state may not introduce the witness' preliminary hearing testimony into evidence unless he had been cross-examined at the preliminary hearing. The court found that the defendant, Roberts, had been denied his right to confront an adverse witness when the trial court admitted the preliminary hearing testimony of a witness who was not present at trial, and held that mere opportunity to cross-examine at a preliminary hearing, unexercised, did not satisfy the demands of the Confrontation Clause …
Deportation Of Aliens For Convictions Based Upon Possession Of Marijuana, Alan Lee
Deportation Of Aliens For Convictions Based Upon Possession Of Marijuana, Alan Lee
Cleveland State Law Review
The recent advent of decriminalization for adjudications based upon possession of small amounts of marijuana has focused much attention upon the harsh immigration consequences of such adjudications for the permanent resident alien. Under section 241(a)(11) of the Immigration and Nationality Act (INA), an alien convicted of possession of marijuana is deportable, and only limited means of relief are available. Due to its severity, however, the section has not been viewed with favor by the courts or the Board of Immigration Appeals, and the result in recent years has been the increased use of a number of ploys either to evade …
Rape Reform Legislation: Is It The Solution, Helene Sasko, Deborah Sesek
Rape Reform Legislation: Is It The Solution, Helene Sasko, Deborah Sesek
Cleveland State Law Review
In order to evaluate rape reform legislation we will compare the new statutes with the old, critically analyze reform legislation, present arguments both in support of and against various aspects of rape reform legislation, and estimate the effect on the rape problem that such legislation is likely to have.
Some Legislative History And Comments On Ohio's New Criminal Code , Harry J. Lehman, Alan E. Norris
Some Legislative History And Comments On Ohio's New Criminal Code , Harry J. Lehman, Alan E. Norris
Cleveland State Law Review
Having briefly outlined the history of the formal development of the Act, it is the purpose of this Article to discuss in narrative form the legislative process on certain key provisions which were the subject of much debate and disagreement. These areas of disagreement include murder and felony penalties, especially minimum sentences; capital punishment to conform to the U.S. Supreme Court's Furman decision as well as other changes; parole eligibility for those serving life sentences for a capital offense; early release on parole, also known as shock parole; eligibility for probation; definition of reasonable doubt and jury instructions on reasonable …
Rules Of Criminal Procedure: The Background Of Draftsmanship, James G. France
Rules Of Criminal Procedure: The Background Of Draftsmanship, James G. France
Cleveland State Law Review
While Ohio’s Rules of Criminal Procedure, effective July 1, 1973, are entirely new to the criminal law practitioners, it is not the purpose of this article to point out the difference between the present and the past in terms of how a criminal case should be prepared for trial and tried. Rather, the emphasis here is on the background of formulation of the rules in terms of Ohio's experience both in drafting rules and in borrowing and adapting rules from other fields, from other jurisdictions, and sometimes from other generations to achieve what the Chief Justice of the Supreme Court …
Ohio Mail And Visitation Prison Regulations And The Evolving Recognition Of Prisoners' Rights, Donald L. Uchtmann
Ohio Mail And Visitation Prison Regulations And The Evolving Recognition Of Prisoners' Rights, Donald L. Uchtmann
Cleveland State Law Review
Dynamic changes have occurred in recent years in the area of prisoners' rights. The antiquated view that prisoners were without any rights - that prisoners were "slave [s] of the State' – has been replaced by the more progressive view that a prisoner retains all rights of an ordinary citizen except those rights expressly or necessarily taken from him by law. As will be seen below, the areas of mail rights and visitation rights have been particularly dynamic. In light of the changing views regarding prisoners' rights, one may wonder what the current Ohio regulations regarding mail and visitation within …
The Expungement Or Restriction Of Arrest Records, Gregory J. Lake
The Expungement Or Restriction Of Arrest Records, Gregory J. Lake
Cleveland State Law Review
Over the past decade, concern has arisen regarding the adverse effects stemming from the misuse of arrest records. Crime cannot be condoned, but once an arrested individual has been exonerated, the arrest record should be expunged and not allowed to remain a "record" to be used against him in the future. The scope of the following analysis will not include conviction records, records of civil cases, or military records of arrest and/or conviction under the Uniform Code of Military Justice though many topics to be discussed will also be relevant to such records. Further, since the juvenile court is not …
The Response To Furman: Can Legislators Breathe Life Back Into Death, Carol Irvin, Howard E. Rose
The Response To Furman: Can Legislators Breathe Life Back Into Death, Carol Irvin, Howard E. Rose
Cleveland State Law Review
In the eighteen months since the Supreme Court of the United States struck down capital punishment in Furman v. Georgia twenty-three states have reinstated the death penalty. While the Supreme Court has not yet heard arguments concerning the constitutionality of these statutes, their validity will determine the fate of the forty-four persons currently awaiting execution in eight states. It is the purpose of this comment to consider the statutes reinstating capital punishment, in light of Furman.
The Right To Counsel And Due Process In Probation Revocation Proceedings: Gagnon V. Scarpelli, Douglas C. Jenkins
The Right To Counsel And Due Process In Probation Revocation Proceedings: Gagnon V. Scarpelli, Douglas C. Jenkins
Cleveland State Law Review
On May 14, 1973, the worst fear of at least one commentator was borne out by the opinion of the Supreme Court in Gagnon v. Scarpelli. Justice Powell, writing for the Court, recognized certain due process rights of the individual who has been convicted and placed on probation. The Court refused to adopt a per se right to representation by counsel as an element of due process in probation revocation proceedings, however. The opinion has left the meaning and importance of due process in grave doubt, has retarded the progression of penal-correctional reform, and has insured a heavy docket for …