Criminal Law Commons^™

Meaningful Access For Indigents On Death Row: Giarratano V. Murray And The Right To Counsel In Post-Conviction Proceedings, William H. Brooks

Vanderbilt Law Review

In 1932 the United States Supreme Court held that the states must provide free legal counsel to indigent defendants in capital cases.' Since then the Court has continued to define the scope of an indigent death row defendant's right to counsel at various critical stages of the defendant's trial and appeal. Following a direct appeal to the state court of appeals and state supreme court, an inmate on death row may seek a writ of certiorari from the United States Supreme Court. A prisoner is not entitled to state appointed counsel for that action.

Next, the defendant may seek post-conviction …

Challenging The Death Penalty Under State Constitutions, James R. Acker, Elizabeth R. Walsh

Vanderbilt Law Review

Death penalty litigation that reaches the Supreme Court now causes at least as much consternation as hope among opponents of capital punishment. Simply not losing rights that once were considered secure can be tantamount to victory in capital cases decided by the Court,and few defendants and opponents of capital punishment expect much more. It was not always so. Hopes were once high that the Supreme Court, and the federal courts generally, would effectively bring an end to capital punishment in America.

That prospect is now remote, at best. Death row populations are sky rocketing and executions are on the rise. …

Evening The Odds In Civil Litigation:A Proposed Methodology For Using Adverse Inferences When Nonparty Witnesses Invoke The Fifth Amendment, Charles H. Rabon, Jr.

Vanderbilt Law Review

A nonparty witness who responds to questioning by invoking the privilege against self-incrimination seriously can impair the party against whom the response suggests an unfavorable answer. The possible injury to a party's case is greatest when the invocation occurs unexpectedly at trial, but may cause equal damage when the privilege is relied on during discovery because the deposition of an unavailable witness may be read to the jury. In the past, courts and commentators generally opposed allowing such invocations in the jury's presence based on the belief that invocations lack credible evidentiary value because witnesses can invoke validly for a …

Making Criminal Defense A Crime Under 18 U.S.C. Section 1957, Paul G. Wolfteich

Vanderbilt Law Review

In 1984 the President's Commission on Organized Crime concluded that money laundering was the lifeblood of organized crime.'The Commission found that drug traffickers and racketeers exploited weaknesses in the Bank Secrecy Act to launder much of their income,estimated by one source to be 150 billion dollars annually. In response,the Commission recommended legislation to strengthen currency reporting laws, to extend the investigative powers of federal agencies, and to create a new money laundering offense.' This new legislation would hold criminally liable persons who conduct a monetary transaction with knowledge or reason to know that the funds involved were derived from unlawful …

The Excessive Fines Clause And Punitive. Damages: Some Lessons From History, Calvin R. Massey

Vanderbilt Law Review

Contrary to the notion that the eighth amendment' is confined strictly to criminal cases, the excessive fines clause of the eighth amendment should apply to the imposition of punitive damages and all judicially imposed monetary sanctions in civil cases. Although this view represents a sharp departure from accepted doctrine, this interpretation of the excessive fines clause is consistent with the historical development of the textual antecedents of the eighth amendment,s the political theory that underlies the adoption of the eighth amendment, and the contemporary purposes served by punitive damages themselves. Moreover, this view in noway violates the holdings of those …

Promoting Truth In The Courtroom, Edwin Meese, Iii

Vanderbilt Law Review

It is a distinct privilege to be with you and to join my predecessors as Attorney General-Elliot Richardson, Judge Griffin Bell,and William French Smith-in becoming a Cecil Sims Lecturer.One of the best features of university life is the freedom it affords to pursue the search for knowledge. In virtually all disciplines an understanding of certain truths, of the way various historical or scientific facts fit together, is an important starting point for further learning and deliberation. The search for truth is also a tremendously important undertaking beyond the campus walls,especially in the realm of criminal justice. That endeavor, the effort …

Criminal Prosecution Of Bank Personnel Under The Misapplication Statute: The Proper Mens Rea Standard For Establishing Intent, William J. Holley, Ii

Vanderbilt Law Review

This Recent Development advocates legislative adoption of a new Misapplication Statute as a long range solution to the courts'continued debate over the appropriate mens rea standard and judicial adoption of a uniform approach as a short run alternative. Part II of this Recent Development traces the various mens rea standards that courts have applied under the Misapplication Statute. Part III discusses the current confusion over the appropriate section 656 mens rea standard by looking at three recent circuit court decisions.' Part IV advocates the adoption of a new Misapplication Statute similar to the approach that the National Com-mission on Reform …

Book Reviews, David E. Kendall

Vanderbilt Law Review

The "violent human-interest story,"" that is, the crime story,has always been a great popular favorite: it is "news which appeals to the average person as the most interesting and exciting in the paper and on television."' In the past two decades, reporting on crime and the criminal justice process has ensnarled the press in a number of running battles with the courts. J. Edward Gerald's News of Crime: Courts and Press in Conflict recounts some of these conflicts. Gerald, who has taught journalism at a number of different universities, assays a short history of the controversies over prejudicial pretrial publicity, …

Rule 10b-5-The Equivalent Scope Of Liability Under Respondeat Superior And Section 20(A)-Imposing A Benefit Requirement On Apparent Authority, Carol M. Lynch

Vanderbilt Law Review

This Note demonstrates that the scope of employer liability for employees' rule 10b-5 violations is no broader under a proper application of respondeat superior than under section 20(a). This Note does not address the question whether respondeat superior applies under rule 10b-5, but rather how courts should apply it.

Part II examines the majority, minority, and Third Circuit decisions on employer liability. Part III discusses the traditional analysis under both respondeat superior and section 20(a) and compares the scope of liability under each one. Part III concludes that except for an employer's liability for acts that are within an employee's …

Criminal Liability Of Corporate Officers For Strict Liability Offenses - Another View, Kathleen F. Brickey

Vanderbilt Law Review

This Article offers an alternative analysis of the doctrine articulated by the Supreme Court in Dotterweich and Park and its subsequent application by the Ninth Circuit. In the course of so doing, it suggests that Professor Abrams has lost sight of the public welfare offense model that provided the analytical framework within which the cases were decided and that his postulates may thus be faulted as lacking in context. The analysis in this Article demonstrates that the responsible share standard of liability has, from the outset, incorporated the requirement of an act or omission to act and that of causation …

Disclosure And Civil Use Of Immunized Testimony, Elizabeth J. Schwartz

Vanderbilt Law Review

This Recent Development examines the current conflict among the circuits. This study first explores the rationales under-lying use immunity and contrasts them with the guidelines formulated by the Supreme Court for controlling judicial disclosure of grand jury testimony. Second, this Recent Development examines the analyses used by the federal courts in determining whether to release immunized grand jury testimony for civil use's and the effect of disclosure on a witness' claim of fifth amendment privilege.This study submits that in their effort to promote civil discovery,several courts have misconstrued the scope and effect of the disclosure power and have usurped the …

Double Jeopardy And Prosecutorial Appeal Of Sentences: Di Francesco, Bullington, And The Criminal Code Reform Act Of 1981, Ronald P. O'Hanley, Iii

Vanderbilt Law Review

This Recent Development first traces the evolution of the double jeopardy doctrine. The Recent Development then focuses on the recent sentence modification cases as well as the proposed revisions to the Federal Criminal Code. Finally, this Recent Development attempts to develop a coherent double jeopardy rationale and concludes that, under this proposed rationale, unilateral government appeal of sentences is unconstitutional.

Youth Crime And Urban Policy: A View From The Inner City, Diana R. Gordon

Vanderbilt Law Review

One does not expect to be mesmerized by a book entitled Youth Crime and Urban Policy: A View from the Inner City. Yet this volume, compiled from the proceedings of a May 1980 conference sponsored by the American Enterprise Institute for Public Policy Research (AEI) proves to be a powerful testament to the plight of the dweller in America's crime-plagued inner-city neighborhoods. Because Robert Woodson has edited the comments of the conference's participants with a light hand, the book gives the reader the power of voices from the street-voices of people who are trying daily to stem the tide of …

The Limits Of Law Enforcement, Hans Zeisel

Vanderbilt Law Review

Society will not be able to solve the crime problem before it has solved the problems of the ghettos. Such an undertaking is a big task, on which society thus far has worked with little diligence.Even if efforts are increased beyond their present level, the task will take a long time. Nevertheless, the question must be ad-dressed, and the statistics point precisely to where the endeavor must begin. Crime typically starts early in life, therefore, radical efforts should be made to reach these crime-prone youths before their life style is fixed. One particular statistic illuminates the problem and suggests a …

Deterrence, Death, And The Victims Of Crime: A Common Sense Approach, Frank G. Carrington

Vanderbilt Law Review

The concept of deterrence is one of the most important in the formulations of the victim advocate, primarily because of two essential premises that underlie the entire field of victim advocacy.The first, but not necessarily the most important, of these premises concerns the policy that favors assuaging the plight of persons after they have been victimized. This relief can be provided in a number of different ways: compensation to innocent victims from the states; restitution to victims as a condition of granting probation to the criminal; victim counselling; and victim/witness assistance programs.' The second premise of victim advocacy, namely,preventing victimization …

The Expert As Educator: A Proposed Approach To The Use Of Battered Woman Syndrome Expert Testimony, Meredith B. Cross

Vanderbilt Law Review

This Recent Development proposes that courts should permit the use of battered woman syndrome expert testimony, but restrict its use to informing juries of the peculiar mental and emotional state of battered women. This role of the expert as educator would serve to dispel a jury's misconceptions about battered women and, at the same time, draw the focus of the testimony away from the implication which troubled the Buhrle court--that the battered woman syndrome represents a new defense to murder.The Advisory Committee explains in a note that rule 702 of the Federal Rules of Evidence suggests the use of expert …

Foreword, G. Michael Mccrossin,

Vanderbilt Law Review

One of the primary goals of the American criminal justice system is to protect the civil liberties of accused persons while at the same time ensuring the security of citizens' persons and property. Recently, some people have begun to argue that the pursuit of these dual purposes has resulted in a dangerous imbalance, and that our criminal justice system now focuses far too heavily on the rights of the accused. These people have perceived an alarming upswing in the incidence of violent crime and have attributed that upswing to a breakdown in the legal profession's administration of the criminal law.

The Crime Controversy: Avoiding Realities, David L. Bazelon

Vanderbilt Law Review

Speaking before the nation's police chiefs last fall, President Reagan said, "The frightening reality is that for all the speeches by those of us in Government-for all the surveys, studies, and blue ribbon panels--for all the 14-point programs and the declarations of war on crime--crime has continued its steady, upward climb and our citizens have grown more and more frustrated, frightened,and angry."'I must concur with the President's depressing picture. In the thirty-two years that I have been on the bench, the "war against crime" has been a high national priority. Nevertheless, crime--and the fear of crime--seem worse today than ever …

The Acquisition Of Evidence For Criminal Prosecution: Some Constitutional Premises And Practices In Transition, H. Richard Uviller

Vanderbilt Law Review

This Article isolates only two of the many aspects of the Court's labors affecting the acquisition of evidence for criminal prosecution. The first concerns the allocation of primacy among the values that the exclusionary response to the illegal acquisition of evidence serves: a theoretical choice that may carry some notable practical consequences. The second requires are examination of the role of the trial court in supervising the preaccusatory search for evidence in a way that suggests the possible obsolescence of the Supreme Court's ruling credo in the Stewart era.

How Serious Is Serious Crime?, Albert J. Reiss, Jr.

Vanderbilt Law Review

This Article examines the information systems that are available to the American public. Part H of the Article discusses crime information sources and limitations arising from their excessive dependence upon the same sources of information. Parts III and IV of the Article focus on the information and methods that American society depends upon to determine the amount and seriousness of"serious" crime. These parts of the Article criticize society's present modes of crime assessment by evaluating public perceptions of crime under several standards for determining the amount of harm that results from different criminal acts. In part V, the Article examines …

Criminal Law: The Missing Element In Sentencing Reform, Michael H. Tonry

Vanderbilt Law Review

The thesis of this Article is that the substantive criminal law is the missing element in sentencing reform. If comprehensive sentencing reform strategies are to have lasting effect, legislatures must reintroduce the criminal law to the sentencing process. This step will require a rekindled interest in a moral analysis of the substantive criminal law and the enactment of greatly reduced statutory sentence maximums, along with more conventional institutional changes to structure discretion and increase official accountability.

Objections to American sentencing procedures range from the principled to the practical. Part II of this Article summarizes the basic objections that have influenced …

Colloquy, Mr. Wiseman, Professor Uviller, Ms. Rosen, Professor Zeisel, Professor Reiss, Mr. Washington, Mr/ Carrington, Ms. Collins, Professor Tonry, Mr. Hishta

Vanderbilt Law Review

At present, our system of criminal law administration has a considerable Rube Goldberg quality to it. Once the system decides to imprison a particular defendant--if we except from the generalization the couple of states that recently changed their laws in fundamental respects--the judge naturally asks himself what will happen when this man goes to prison. The answer is that the convicted offender will sit in prison for as long as the parole board wants him to. The judge must next consider whether any constraints exist on the parole board's decisions on when to release people from prison. In a third …

The Fourth Amendment And The "Legitimate Expectation Of Privacy", Gerald G. Ashdown

Vanderbilt Law Review

This Article does not endeavor to engage in a debate over the efficacy or deterrent effect of the exclusionary rule.' Nevertheless, it should be noted that these decisions appear questionable. It seems clear that a refusal to apply the rule in cases of particular fourth amendment transgressions will produce no incremental deterrence of unlawful police conduct, and inconsistent application of the rule arguably could diminish whatever deterrent value does exist.Therefore, if deterrence is viewed as the primary--if not only-function of the exclusionary rule, that goal should be promoted through thorough and consistent application of the rule.The Supreme Court, however, has …

The Jurisprudence Of Larceny:An Historical Inquiry And Interest Analysis, Kathleen F. Brickey

Vanderbilt Law Review

This Article tenders such a reconstruction and develops the theory that ownership, rather than possession, was the legal interest protected by common-law larceny. The theory is derived from analysis of the content of early theft law and the procedural forms through which property rights were vindicated.

Drugs And Criminal Responsibility, Edward H. Benton, Andrew Bor, William H. Leech, Joyce A. Levy

Vanderbilt Law Review

This Special Project has carried out three broad purposes.First, it has synthesized and organized materials concerning drugs and criminal responsibility into a useful guide for legal practitioners and others interested in the problems of the drug dependent defendant. Second, it has identified serious analytical flaws in many of the defenses available to the criminal defendant. Finally,it has responded to these deficiencies with proposals intended to protect not only the legal rights of the drug dependent defendant but also the rights of society pertaining to criminal justice. While these societal interests include the swift imposition of criminal penalties when warranted, they …

Recent Publications, Unidentified Author

Vanderbilt Law Review

Beating a Rap? Defendants Found Incompetent to Stand Trial

In this book, Henry Steadman, Director of the Special Projects Research Unit of the New York State Department of Mental Hygiene, addresses the common suspicion that defense attorneys enable their clients to escape criminal charges by having the clients declared incompetent to stand trial. Such suspicion, he argues, results both from public confusion over the legal and psychiatric issues in a competency hearing and from a lack of understanding (even among experts) about the practical results that flow from a determination of incompetency.

Law and Order in American History Edited by …

The Racketeer Influenced And Corrupt Organizations Act: An Analysis Of The Confusion In Its Application And A Proposal For Reform, Whitney L. Schmidt

Vanderbilt Law Review

This Note will first discuss the technical elements of a RICO violation and set forth the four separate crimes that constitute the statute's central provisions. After then examining RICO's crucial statutory definitions and the confusion reflected in their application, this Note will evaluate the various judicial interpretations of the statute and propose a solution for amending the statute that is harmonious with legislative intent and accommodates the needs of both society and the individual.

Execution Without Trial: Police Homicide And The Constitution, Lawrence W. Sherman

Vanderbilt Law Review

This analysis of police homicide and the Constitution leads to the conclusion that the present state laws are unconstitutional, not just in the common-law states, but in the Model Penal Code and"forcible felony" states as well.' The present laws of every state in the union deny police homicide victims fifth and fourteenth amendment rights to due process, allow the punishment of death to be imposed in a cruel and unusual fashion, and appear to deny equal protection to blacks. The only constitutional alternative apparent is to remove police homicide from the realm of punishment and confine justification for it to …

Emerging Standards In Supreme Court Double Jeopardy Analysis, Clifford R. Ennico

Vanderbilt Law Review

The purposes of this Recent Development are as follows: to identify and evaluate recent modifications in the Court's double jeopardy analysis, to propose that the Court's 1977 Term double jeopardy standards dilute the double jeopardy protection previously afforded to criminal defendants, and to suggest that the Court should permit a broader scope of appellate review in double jeopardy cases.

Comment: Southern Violence-Regional Problem Or National Nemesis?: Legal Attitudes Toward Southern Homicide In Historical Perspective, Dennis R. Nolan

Vanderbilt Law Review

The preceding pages should indicate that Southern Violence is a disappointment to those of us whose expectations had been raised by Professor Brown's earlier works and to those who are interested in his stated topic. It is a thoroughly unfocused, loose collection of facts and incidents that will interest only those with a curiosity about Alabama's Chief Justice Stone or the Texas law of self-defense. The paper does contain several seeds of thought that might,if given adequate attention, grow into testable hypotheses. Those hypotheses will be hard to evaluate, but they are of immense importance because they concern the fundamental …