Criminal Law Commons^™

True Lies: The Constitutional And Evidentiary Bases For Admitting Prior False Accusation Evidence In Sexual Assault Prosecutions, Jules Epstein

ExpressO

The admission of false accusation evidence in sexual assault prosecutions has been ruled on inconsistently by courts nationally. This article identifies the constitutional bases for admitting false accusation evidence as both impeachment and substantive (non-character) proof, and re-focuses Confrontation Clause analysis post-Crawford on the scope of the cross-examination right; offers a definition for what constitutes a false accusation and the level of proof requisite to its admission; and addresses social and policy concerns attendant to its presentation.

Prisons Of The Mind: Social Value And Economic Inefficiency In The Criminal Justice Response To Mental Illness, Amanda C. Pustilnik

ExpressO

This Article employs a “New Chicago School” law and economics analysis to examine why the staggering economic and human costs of channeling non-violent mentally ill adults and children into the criminal system not only are countenanced but embraced by voters and lawmakers. Analyzing legislation, statements by lawmakers and jurors, and historical sources, the Article contends that certain social value is created through the incarceration of this marginalized group. That is, there is a taste for the punishment of these people that incarceration satisfies but that therapeutic alternatives would not. The willingness to pay for this contestable taste keeps entrenched this …

Child Laundering: How The Intercountry Adoption System Legitimizes And Incentivizes The Practices Of Buying, Trafficking, Kidnapping, And Stealing Children, David M. Smolin

ExpressO

This article documents and analyzes a substantial incidence of "child laundering" within the intercountry adoption system. Child laundering occurs when children are taken illegally from birth families through child buying or kidnapping, and then "laundered" through the adoption system as "orphans" and then "adoptees." The article then proposes reforms to the intercountry adoption system that could substantially reduce the incidence of child laundering.

Guidance From Above And Beyond, Steven L. Chanenson

Working Paper Series

Criminal sentencing does not just happen in the courtroom. Some key sentencing decisions happen long before court convenes, while other critical sentencing decisions take place long after court adjourns. Although the public focuses primarily on the black-robed figure wielding the gavel, sentencing reflects decisions by a veritable parade of actors, including legislators, sentencing commissioners, police officers, prosecutors, juries, trial judges, appellate judges, and executive branch officials. All of these people guide and constrain the sentencing process. Through their official actions, they inform each other about what is happening in their corners of the sentencing drama, and prod their counterparts to …

Summary Of Anderson V. State, 121 Nev. Adv. Op. 51, Bryce C. Loveland

Nevada Supreme Court Summaries

No abstract provided.

Calling A Truce In The Culture Wars: From Enron To The Cia, Craig S. Lerner

George Mason University School of Law Working Papers Series

This Article compares and evaluates recent Congressional efforts to improve institutional “cultures” in the private and public sectors. The Sarbanes-Oxley Act of 2002 was designed to upgrade corporate culture by patching up the “walls” that separate corporate management from boards of directors, accountants, lawyers, and financial analysts. The Intelligence Reform Act of 2005 took a different tack, hammering away at walls that supposedly segmented the intelligence community. The logic was that the market failed because people did not observe sufficient formalities in their dealings with one another, while the intelligence community failed precisely because people kept their distance from one …

Life V. Death: Or Why The Death Penalty Should Marginally Deter, Charles N. W. Keckler

George Mason University School of Law Working Papers Series

Econometric measures of the effect of capital punishment have increasingly provided evidence that it deters homicides. However, most researchers on both sides of the death penalty debate continue to rely on rather simple assumptions about criminal behavior. I attempt to provide a more nuanced and predictive rational choice model of the incentives and disincentives to kill, with the aim of assessing to what extent the statistical findings of deterrence are in line with theoretical expectations. In particular, I examine whether it is plausible to suppose there is a marginal increase in deterrence created by increasing the penalty from life imprisonment …

Reasonable Suspicion And Mere Hunches, Craig S. Lerner

George Mason University School of Law Working Papers Series

In Terry v. Ohio, Earl Warren held that police officers could temporarily detain a suspect, provided that they could articulate the “reasonable inferences” for their suspicion, and not merely allude to a “hunch.” Since Terry, the American legal system has discounted the “mere” hunches of police officers, requiring them to articulate “specific” and “objective” observations of fact to support their decision to conduct a stop and frisk. The officer’s intuitions, gut feelings and sixth sense about a situation are all disallowed.

This dichotomy between facts and intuitions is built on sand. Emotions and intuitions can be reasonable, and reasons are …

When The Federal Death Penalty Is "Cruel And Unusual", Michael J.Z. Mannheimer

ExpressO

Recent changes to the way the U.S. Department of Justice decides whether to pursue capital charges have made it more likely that the federal death penalty will be sought in cases in which the criminal conduct occurred within States that do not authorize capital punishment for any crime. As a result, since 2002, five people have been sentenced to death in federal court for conduct that occurred in States that do not authorize the death penalty. This state of affairs is in serious tension with the Eighth Amendment’s proscription against “cruel and unusual punishments.” A complete understanding of the Bill …

Reconceptualizing Due Process In Criminal Justice: Contributions From Law And Social Science, Christopher Slobogin

ExpressO

This article challenges the accepted wisdom, at least since the Supreme Court’s decision in Gault, that procedures in juvenile delinquency court should mimic the adult criminal process. The legal basis for this challenge is Gault itself, as well as the other Supreme Court cases that triggered the juvenile justice revolution of the past decades, for all of these cases relied on the due process clause, not the provisions of the Constitution that form the foundation for adult criminal procedure. That means that the central goal in juvenile justice is fundamental fairness, which does not have to be congruent with the …

The Reasonableness Of Probable Cause, Craig S. Lerner

George Mason University School of Law Working Papers Series

Probable cause is generally cast in judicial opinions and the scholarly literature as a fixed probability of criminal activity. In the weeks before the September 11 attacks, FBI headquarters, applying such an unbending standard, rejected a warrant application to search Zacarias Moussaoui’s laptop computer. This article, which begins with an analysis of the Moussaoui episode, argues that the probable cause standard should be calibrated to the gravity of the investigated offense and the intrusiveness of a proposed search. Tracing the evolution of probable cause from the common law through its American development, the article argues that the Supreme Court’s current …

Deterring Roper’S Juveniles: Why Immature Criminal Youth Require The Death Penalty More Than Adults – A Law & Economics Approach, Moin A. Yahya

ExpressO

In Roper v. Simmons, the United States Supreme Court declared the death penalty for juveniles unconstitutional. It relied on three reasons, one of which concerns this article, namely the theory that juveniles are less culpable and deterrable than adults. The Court relied on the American Medical Association’s amicus brief which purported to show scientifically that juveniles had less developed brains than adults. The Court characterized juveniles as being risk-lovers who highly preferred the present over the future, who loved gains no matter how risky but did not care for losses, and who could not engage in proper cost-benefit analysis, because …

Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil

ExpressO

Among many responses to the attacks of September 11, 2001, Congress and the states have shifted to the executive branch certain powers once held by the judicial branch. This article considers the impact of transferring judicial powers to prosecutorial officers, and compares the consequent increased powers of the prosecutor with those powers traditionally held by prosecutors in Japanese criminal courts. It considers the impact of removing from public view and judicial oversight many prosecutorial functions, drawing comparisons between the largely opaque Japanese prosecutorial roles and those roles now assumed in immigration and anti-terrorism laws, noting the need for safeguards not …

Negotiating Sex, Michelle J. Anderson

Working Paper Series

“Negotiating Sex” is a response to the two major proposals for rape law reform in legal scholarship today, as well as a proposal for a third way. Susan Estrich and Donald Dripps argue that sexual penetration should be legal unless the victim expresses her non-consent, a proposal I call the “No Model.” Stephen Schulhofer argues that sexual penetration should be illegal unless the defendant obtains affirmative consent for penetration through the victim’s words or conduct, a proposal I call the “Yes Model.” Under this model, according to Schulhofer, if a woman does not say “no,” and “her silence is combined …

Summary Of Bellon V. State, 121 Nev. Adv. Op. 45, 117 P.3d 176, Wayne Klomp

Nevada Supreme Court Summaries

No abstract provided.

Summary Of Hosier V. State, 121 Nev. Adv. Op. 41, Robert Henriksen

Nevada Supreme Court Summaries

This case is an original proper person petition for extraordinary relief, challenging the validity of Hosier’s 1990 judgment for conviction citing to Article 6, Section 4 of the Nevada Constitution.

Summary Of Gordon V. State, 121 Nev. Adv. Op. 51, Bryce C. Loveland

Nevada Supreme Court Summaries

In this case, the Court considered two issues related to DUI charges against appellant. First, whether a jury may return a general guilty verdict based upon several legally sufficient theories of driving under the influence if at least one theory had sufficient evidentiary support. Second, whether the appellant was prejudiced by the State’s failure to gather evidence during its investigation. After a review of the evidence presented at trial, the Court concluded that a jury may return a general guilty verdict even when only one of several theories had sufficient support, and that the appellant here was not prejudiced by …

Home As A Legal Concept, Benjamin Barros

ExpressO

This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal …

Mental Disorders And The Law, Richard Redding

Working Paper Series

This chapter provides an introduction to the major classes of mental disorder and the ways in which they are salient to selected aspects of American criminal and civil law, focusing particularly on criminal law issues.

Partial Ban On Plea Bargains, Oren Gazal

Law & Economics Working Papers Archive: 2003-2009

The influence of the plea bargaining system on innocent defendants is fiercely debated. Many scholars call for a ban on plea bargaining, arguing that the practice coerces innocent defendants to plead guilty. Proponents of plea bargaining respond that even an innocent defendant is better off when he choose to plea bargain in order to assure a lenient result, if he concludes that the risk of wrongful trial conviction is too high. They claim that since plea bargaining is only an option, it cannot harm the defendant whether he is guilty or innocent. This paper argues that the both supporters and …

Overenforcement, Richard A. Bierschbach, Alex Stein

Articles

Overenforcement of the law is widespread but underinvestigated. Overenforcement occurs when the total sanction, both legal and extralegal, suffered by the violator of a legal rule exceeds the amount optimal for deterrence. Overenforcement sometimes generates overdeterrence that cannot be remedied through the adjustment of substantive liability standards or penalties in light of operational and expressive constraints. When that happens, the legal system can counteract the effects of overenforcement by adjusting evidentiary or procedural rules to make liability less likely. This framework, which we call the overenforcement paradigm, illuminates previously unnoticed features of various evidentiary and procedural arrangements. It also provides …

Summary Of Whisler V. State, 121 Nev. Adv. Op. 40, Jared R. Gibb

Nevada Supreme Court Summaries

The defendant, Douglas Whisler, appealed his conviction for driving while under the influence of controlled substances or chemicals.

Najar V. State Of Israel, Elyakim Rubinstein, Miriam Naor, Yonatan Adiel

Translated Opinions

Facts: The appellant, a Bedouin, stabbed his sister to death. Initially, he said that the reason why he did this was that his sister, who was unmarried, intended to travel alone to Egypt, and this would dishonour the family. At his trial, the appellant testified that in addition his sister had made a statement questioning his paternity of his children. The appellant claimed that the killing of his sister was the result of provocation, and therefore he should be convicted of manslaughter rather than murder. Inter alia he argued that the court should take into account the fact that in …

The Medieval Blood Sanction And The Divine Beneficence Of Pain: 1100 - 1450, Trisha Olson

ExpressO

No abstract provided.

Discretion And Criminal Law: The Good, The Bad, And The Mundane, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

Most academic papers condemn discretion in the enforcement and prosecution of crime. This essay argues that discretion should be understood to come in three varieties: good discretion, which is beneficial; bad discretion, which is typified by acts motivated by race, sex, or class considerations; and mundane discretion, which is value-neutral. The decision to pursue a drunken driver rather than a speeder, for example, is a good use of discretion while the decision to pursue one speeder rather than another based on race is bad discretion. Most motives that prompt acts of discretion, however, are value-neutral or what I call “mundane” …

Time Travel, Hovercrafts, And The Framers: James Madison Sees The Future And Rewrites The Fourth Amendment, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

The Framers could not have contemplated the interpretational problems that cloud the Fourth Amendment because police, in the modern sense, were unknown to the Framers. Also unknown to the Framers, of course, were wiretaps, drug interdiction searches, thermal imagining, helicopters, and blood tests. We can infer from the history surrounding the Fourth Amendment what the Framers hoped it would accomplish in their time. What if the Framers could have seen the future and known the kind of police techniques that are being used today? What kind of Fourth Amendment would they have written with that knowledge? This article seeks to …

Broadening The Holistic Mindset: Incorporating Collateral Consequences And Reentry Into Criminal Defense Lawyering, Michael Pinard

Faculty Scholarship

In this article, Professor Michael Pinard highlights the holistic model of criminal defense representation, which seeks to address the myriad issues that often lead to the client’s involvement with the criminal justice system with the overarching goal of providing a comprehensive solution to those underlying factors. While lauding these developments, however, Professor Pinard argues that the holistic model has largely overlooked two facets of the criminal justice system that impact greatly the client’s life once the formal representation has concluded: the collateral consequences of criminal convictions and reentry. Professor Pinard explores the emerging attention devoted to these two components, but …

The 'Abuse Excuse' In Capital Sentencing Trials: Is It Relevant To Responsibility, Punishment, Or Neither?, Paul J. Litton

Faculty Publications

The violent criminal who was a victim of severe childhood abuse frequently appears in the responsibility literature because he presents a difficulty for theorists who maintain the compatibility of causal determinism and our practices of holding persons responsible. The challenge is based on the fact that learning about an offender's horrific childhood mitigates the indignation that many persons feel towards him, possibly indicating that they hold him less than fully responsible. Many capital defendants present evidence of suffering childhood abuse, and many jurors find this evidence to count against imposing death. The most obvious explanation for a response like this …

The Lessons Of People V. Moscat: Confronting Judicial Bias In Domestic Violence Cases Interpreting Crawford V. Washington, David Jaros

All Faculty Scholarship

Crawford v. Washington was a groundbreaking decision that radically redefined the scope of the Confrontation Clause. Nowhere has the impact of Crawford and the debate over its meaning been stronger than in the context of domestic violence prosecutions. The particular circumstances that surround domestic violence cases 911 calls that record cries for help and accusations, excited utterances made to responding police officers, and the persistent reluctance of complaining witnesses to cooperate with prosecutors -- combine to make the introduction of "out-of-comment statements" a critical component of many domestic violence prosecutions. Because domestic violence cases are subject to a unique set …

Miranda And Reasonableness, Peter B. Rutledge

Scholarly Works

Last term's decisions in Yarborough v. Alvarado and Missouri v. Seibert shed important light on the state of the Miranda doctrine in the Supreme Court. In Yarborough, a slim majority held that a state appellate court's failure to consider a defendant's age and history of contact with law enforcement in its “custody” determination was not “contrary to” or an “unreasonable application of” clearly established Supreme Court case law. In Seibert, a fractured majority affirmed the Missouri Supreme Court's decision to exclude a defendant's confession where police officers strategically withheld a suspect's Miranda rights at the outset of a …