Criminal Law Commons^™

Equality, Objectivity, And Neutrality, Alafair S. Burke

Michigan Law Review

When is homicide reasonable? That familiar, yet unanswered question continues to intrigue both courts and criminal law scholars, in large part because any response must first address the question, "reasonable to whom?" The standard story about why that threshold question is both difficult and interesting usually involves a juxtaposition of "objective" and "subjective" standards for judging claims of reasonableness. On the one hand, the story goes, is a "subjective" standard of reasonableness under which jurors evaluate the reasonableness of a criminal defendant's beliefs and actions by comparing them to those of a hypothetical reasonable person sharing all of the individual …

How Panels Affect Judges: Evidence From United States District Courts, Ahmed E. Taha

University of Richmond Law Review

Recent research has shown that judges on panels decide cases differently than they do individually. Understanding these panel effects is essential to understanding and predicting judicial behavior. This Article uses a unique naturalexperiment, and interviewsof United States district court judges who participatedin this ex-periment, to empirically investigate panel effects. Specifically, in fourteen district courts the judges chose to sit in an en banc panelto decide the constitutionalityof the FederalSentencing Guide- lines; in fifty-three other districts, the judges decided the issue in- dividually instead. This Article compares the decisions and the characteristicsof these districts to study how panels affect judicialdecision making …

Securing A Journalist's Testimonial Privilege In The International Criminal Court, Anastasia Heeger

San Diego International Law Journal

This Article argues that given the unique and significant contribution of journalists to uncovering and documenting war crimes, the ICC should amend its evidentiary rules to recognize a qualified journalist's privilege. In doing so, the ICC should clearly identify who may benefit from such a privilege, clarify a procedure for balancing the need of reportorial testimony against prosecution and defense interests, and, lastly provide for mandatory consultations between the court and affected news organizations or journalists before allowing the issuance of a subpoena. Such clarity will benefit not only journalists working in war zones and the ICC, but will provide …

Apprendi's Limits, R. Craig Green

University of Richmond Law Review

No abstract provided.

Passion's Puzzle, Stephen P. Garvey

Cornell Law Faculty Publications

The puzzle of the provocation defense, otherwise known as the "heat of passion" defense, is to figure out how, if at all, each of the basic elements of the doctrine can be explained in a coherent and normatively attractive fashion. None of the prevailing theories of provocation succeeds in solving this puzzle. These theories either fail to explain one or more of the basic elements of the doctrine, or else end up committing the state to a decidedly illiberal course of action: punishing citizens not only for what they do (for their actions), but for who they are (for their …

Tribunals Organized To Convict: Searching For A Lesser Evil In The Capital Juror Death-Qualification Process In United States V. Green, Richard Salgado

BYU Law Review

No abstract provided.

United States V. Booker: The Demise Of Mandatory Federal Sentencing Guidelines And The Return Of Indeterminate Sentencing, Jonathan Chiu

University of Richmond Law Review

No abstract provided.

Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error In Criminal Trials, Jason M. Solomon

Scholarly Works

This Article proceeds in four parts. Part II is a brief overview of harmless-error doctrine in the context of habeas challenges to state criminal convictions, focusing on the nature of the inquiry and the doctrinal deadlock described above. Part III is an empirical analysis of the post-Brecht cases in the federal courts of appeals. To search for a way out of the doctrinal deadlock, I started with a relatively straightforward question: what has happened to harmless-error analysis since Brecht? To answer this question, I reviewed and, with the help of a research assistant, coded all of the 315 …

When Process Affects Punishment: Differences In Sentences After Guilty Plea, Bench Trial, And Jury Trial In Five Guidelines States, Nancy J. King, David A. Soule, Sara Steen, Robert R. Weidner

Vanderbilt Law School Faculty Publications

The research reported in this Essay examines process discounts-differences in sentences imposed for the same offense, depending upon whether the conviction was by jury trial, bench trial, or guilty plea-in five states that use judicial sentencing guidelines. Few guidelines systems expressly recognize "plea agreement" as an acceptable basis for departure, and none authorizes judges to vary sentences based upon whether or not the defendant waived his right to a jury trial and opted for a bench trial. Nevertheless, we predicted that because of the cost savings resulting from waivers, judges and prosecutors in any sentencing system would ensure that guilty …

From No Means No To Only Yes Means Yes: The Rational Results Of An Affirmative Consent Standard In Rape Law, Nicholas J. Little

Vanderbilt Law Review

2003 saw the arrest of the star basketball player Kobe Bryant on charges of forcing a woman to have sex with him, charges that were dropped in 2004. This arrest is perhaps the most prominent in what has become a sordid procession of public shame: the charging of professional athletes with crimes of sexual assault. As is common in rape charges, neither party denies that the sex took place. Instead the argument is based on whether the woman consented to it. In the apology Bryant issued that led to the dismissal of the charges, he admits that "[a]lthough I truly …

Was The Frog Prince Sexually Molested?: A Review Of Peter Westen's The Logic Of Consent, Heidi M. Hurd

Michigan Law Review

Peter Westen's The Logic of Consent is nothing short of a tour de force. In the tradition of the very best and most significant contributions to legal theory, Professor Westen demonstrates that we do not know what we think we know about a capacity that on a daily basis turns trespasses into dinner parties, brutal batteries into football games, rape into lovemaking, and the commercial appropriation of name and likeness into biography. While we all employ claims of consent in everyday moral gossip to absolve some and withhold sympathy from others, and while courts of law across the nation commonly …

Pluralizing International Criminal Justice, Mark A. Drumbl

Michigan Law Review

From Nuremberg to The Hague scours the institutions of international criminal justice in order to examine their legitimacy and effectiveness. This collection of essays is edited by Philippe Sands, an eminent authority on public international law and professor at University College London. The five essays derive from an equal number of public lectures held in London between April and June 2002. The essays - concise and in places informal - carefully avoid legalese and arcania. Taken together, they cover an impressive spectrum of issues. Read individually, however, each essay is ordered around one or two well-tailored themes, thereby ensuring analytic …

David P. Forsythe On The United States And The Rule Of Law In International Affairs By John F. Murphy. Cambridge: Cambridge University Press, 2004. 367pp., David P. Forsythe

Human Rights & Human Welfare

A review of:

The United States and the Rule of Law in International Affairs by John F. Murphy. Cambridge: Cambridge University Press, 2004. 367pp.

The Third Wave Of Crime Victims' Rights: Standing, Remedy, And Review, Douglas E. Beloof

BYU Law Review

No abstract provided.

In Defense Of Porfiry Petrovich, Robert Batey

Cardozo Law Review

No abstract provided.

Summary Of Miller V. State, 121 Nev. Adv. Op. 10 And Summary Of Daniel V. State, 121 Nev. Adv. Op. 11, Hagar Labouz

Nevada Supreme Court Summaries

Both Miller and Daniel arise out of a Las Vegas Metropolitan Police Department (LVMPD) decoy program designed to combat an increase in street-level robberies occurring in downtown Las Vegas. In Miller, a detective with the LVMPD disguised himself as an intoxicated vagrant and carried exposed cash in his pocket. The detective then positioned himself across from a bus station and leaned against a chain link fence. Richard Miller, an individual walking down the street, approached the detective and asked him for money. When the detective refused, Miller pulled the detective closer to him and took the cash from the detective’s …

Summary Of Sparks V. State, 120 Nev. Adv. Op. 12, Bryce Loveland

Nevada Supreme Court Summaries

The Nevada Supreme Court held that “Failure to Appear” clauses are not unconscionable in plea agreements and upheld one in this case.c

An Economic Analysis Of The Private And Social Costs Of The Provision Of Cybersecurity And Other Public Security Goods, Bruce H. Kobayashi

George Mason University School of Law Working Papers Series

This paper examines the incentives of private actors to invest in cybersecurity. Prior analyses have examined investments in security goods, such as locks or safes that have the characteristics of private goods. The analysis in this paper extends this analysis to examine expenditures on security goods, such as information, that have the characteristics of public goods. In contrast to the private goods case, where individual uncoordinated security expenditures can lead to an overproduction of security, the public goods case can result in the underproduction of security expenditures, and incentives to free ride. Thus, the formation of collective organizations may be …

Conditional Rights And Comparative Wrongs: More On The Theory And Application Of Comparative Criminal Liability, Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

This article continues to develop an argument in favor of comparative criminal liability started in "Victims and Perpetrators: An Argument for Comparative Liability in Criminal Law," (http://law.bepress.com/rutgersnewarklwps/fp/art19/) Buff. Crim. L. Rev. 385 (2005). The essence of my argument is that people’s rights are not static but depend on their actions, and victims may reduce their right not to be harmed either voluntarily, by consent, waiver or assumption of risk, or involuntarily, by an attack on some legally recognized rights of the perpetrator. If that happens, perpetrators should be entitled to a defense of complete or partial justification, which would eliminate …

The Revenge Of Mullaney V. Wilbur: U.S. V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, Ian Weinstein

ExpressO

This article offers a historically grounded account of the twists and turns in the Supreme Court's sentencing jurisprudence from the end of World War II to the Court's stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court's effort to respond to the changing political and social landscape of crime in America. In the mid 1970’s, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave …

The New Deterrence: Crime And Policy In The Age Of Globalization, Patrick Keenan

ExpressO

Globalization has made it much easier for criminal activity to cross borders, but deterrence theory has not kept up with this changed reality. I draw insights from both law-and-economics and criminology literature to enrich our understanding of deterrence. I ground my theoretical discussion in the real-world problem of sex tourism as an example of the kind of unwanted activity that now crosses borders and has complicated our understanding of deterrence. I focus on two issues central to deterrence that have not gotten sufficient scholarly attention: the phenomenon of displacement and the role of status. I argue that informal sanctions, as …

The Two Unanswered Questions Of Illinois V. Caballes: How To Make The World Safe For Binary Searches, Ric Simmons

The Ohio State University Moritz College of Law Working Paper Series

This Article discusses the recent Supreme Court decision Illinois v. Caballes, which held that the Fourth Amendment does not bar the use of drug-detection dogs, even in the absence of reasonable suspicion. It argues that the Caballes case paves the way for widespread and indiscriminant use of a new type of surveillance known as a binary search. A binary search is defined as a search which provides the law enforcement official with no information about the subject other than whether or not illegal activity is present. Drug-detection dogs are one example of a binary search, but there are many others …

What I Have Feared Most Has Now Come To Pass: Blakely, Booker, And The Future Of Sentencing, Katie M. Mcvoy

Notre Dame Law Review

No abstract provided.

Taking Miranda's Pulse, William T. Pizzi, Morris B. Hoffman

Vanderbilt Law Review

The Supreme Court decided five Miranda1 cases in 2003-2004, making this one of the most active fifteen-month periods for the law of self-incrimination since the controversial case was decided in 1966. In this Article, we consider three of those five cases-Chavez v. Martinez, Missouri v. Seibert and United States v. Patane-along with the blockbuster decision four years ago in Dickerson v. United States. in an attempt to decipher what, if anything, this remarkable level of activity teaches us about the direction of the Court's self-incrimination jurisprudence. In the end, while these cases, like those before them, may not entirely clarify …

Reforming The Child Welfare System, Marcia Robinson Lowry

Cardozo Public Law, Policy & Ethics Journal

The article argues that child welfare systems in the United States are failing to meet the needs of children and families, particularly poor and marginalized ones, and that litigation is an essential tool for driving systemic reform. It highlights the ineffectiveness of current policies, the lack of political will and accountability, and the critical role of class action lawsuits in exposing systemic failures and securing resources and reforms.

The Failure Of The Federal Sentencing System: A Structural Analysis, Frank O. Bowman Iii

Faculty Publications

For most of the last decade, I numbered myself among the supporters of the Federal Sentencing Guidelines and wrote extensively in their defense, while chronicling their defects. In the past year, I have reluctantly concluded that the federal sentencing guidelines system has failed. This Article explains the Guidelines' failure. The Sentencing Reform Act was intended to distribute the power to make sentencing policy and rules and to control individual sentencing outcomes among a range of national and local actors - the U.S. Sentencing Commission, Congress, the federal appellate courts, and the Department of Justice at the national level, and district …

Murder, Meth, Mammon & Moral Values: The Political Landscape Of American Sentencing Reform (In Symposium On White Collar Crime), Frank O. Bowman Iii

Faculty Publications

This Article examines the ongoing American experiment in mass incarceration and considers the prospects for meaningful sentencing reform.

Lucky: The Sequel, Martha Chamallas

Indiana Law Journal

No abstract provided.

Child Sex Abuse Victims: How Will Their Stories Be Heard After Crawford V. Washington?, Erin Thompson

Campbell Law Review

This comment focuses on the Confrontation Clause's interpretation throughout history and demonstrates the adverse effects the current state of the law has on child sex abuse victims like Alice and Bonnie. As such, the United States Supreme Court should declare that current statutory protections for child sex abuse victims are valid exceptions to the Confrontation Clause. Additionally, states should be encouraged to establish these statutes where they do not exist.

Reenvisioning Law Through The Dna Lens, Edward K. Cheng

Vanderbilt Law School Faculty Publications

In recent times, no development has transformed the practice of criminal justice as much as DNA evidence. In little over fifteen years, DNA profiling has produced nothing short of a paradigm shift.1 For police and prosecutors, DNA has become a potent weapon for identifying and convicting criminals. Trace biological material left at a crime scene now provides critical evidence for generating leads through "cold searches" of DNA databases and for convicting defendants at trial. At the same time, for defense attorneys, DNA has become an invaluable tool for seeking exonerations, because just as DNA can link defendants to crimes, it …