Criminal Law Commons^™

The Invisible Pillar Of Gideon, Adam M. Gershowitz

Indiana Law Journal

In 1996, the State of South Carolina charged Larry McVay with common-law robbery. McVay, who was employed part-time and took home less than $160 per week after taxes, claimed that after paying his basic living expenses he had no money left with which to hire an attorney. A South Carolina court disagreed and denied McVay's requestfor appointed counsel. ' Seven years later, Scott Peterson was arrested for the murder of his wife and unborn child in California. Although Peterson owned a home, drove an expensive SUV, and was carrying $10,000 in cash when he was captured, he claimed to be …

Civil And Criminal Recidivists: Extraterritoriality In Tort And Crime, Wayne A. Logan

Scholarly Publications

Historically, punitive damage awards and criminal sentences have shared the common justifications of punishment and deterrence, with the culpability of tortfeasors and criminals alike being enhanced as a result of repeat misconduct. The Supreme Court’s 2003 decision in State Farm v. Campbell suggests, however, that the parallels now in effect stop at the state line. The extraterritorial misconduct of tortfeasors is permitted to play a very limited role, if any, in the assessment of punitive damage awards. Meanwhile, such misconduct continues to be used by courts to significantly enhance the sentences of criminal defendants, an asymmetry accentuated by California v. …

Making Sense Of The Sense Of Justice, Markus Dirk Dubber

Buffalo Law Review

No abstract provided.

Reliability Matters: Reassociating Bagley Materality, Strickland Prejudice, And Cumulative Harmless Error, John H. Blume, Christopher W. Seeds

Cornell Law Faculty Publications

Most commonly invoked after conviction and direct appeal, when a defendant may claim that his lawyer was ineffective or that the government failed to disclose exculpatory information, the Brady doctrine, which governs the prosecutor’s duty to disclose favorable evidence to the defense, and the Strickland doctrine, which monitors defense counsel’s duty to represent the client effectively, have developed into the principal safeguards of fair trials, fundamental to the protection of defendants’ constitutional rights and arguably defendants’ strongest insurance of a reliable verdict. But the doctrines do not sufficiently protect these core values.

The doctrines, despite their common due process heritage …

Plea Bargaining At The Hague, Julian A. Cook

Scholarly Works

Plea bargaining has come to The Hague. For most of its existence, the International Criminal Tribunal for the Former Yugoslavia (ICTY) shunned plea bargains. However, under pressure from United Nations member states and the impending deadline for the resolution of its caseload, the ICTY has increasingly relied on plea bargains in recent months. This Article exposes the deficiencies in guilty plea procedures at The Hague, particularly those designed to assess whether a plea is fully informed and voluntary. In a series of case studies, the Article argues that judicial questioning techniques have exploited the vulnerable state of defendants appearing before …

Jury Sentencing In Non-Capital Cases: Comparing Severity And Variance With Judicial Sentences In Two States, Nancy J. King, Rosevelt L. Noble

Vanderbilt Law School Faculty Publications

Recently, commentators have championed sentencing byjury as more democratic and better suited to current theories of punishment than sentencing by judge alone. Yet discussions of noncapitaljury sentencing either fail to address empirical questions or rely on outdated and incomplete studies. This study is the first to present basic information on the comparative severity and variance of jury and judge sentencing as practiced in the 21st century. We use archival sentencing data from two of the six states that authorize jury sentencing-Arkansas and Virginia. In both states, voluntary sentencing guidelines govern judicial sentencing after bench trial or guilty plea, but juries …

Reclaiming Fundamental Principles Of Criminal Law In The Darfur Case, George P. Fletcher, Jens David Ohlin

Cornell Law Faculty Publications

According to the authors, the Report of the UN Commission of Inquiry on Darfur and the Security Council referral of the situation in Darfur to the International Criminal Court (ICC) bring to light two serious deficiencies of the ICC Statute and, more generally, international criminal law: (i) the systematic ambiguity between collective responsibility (i.e. the responsibility of the whole state) and criminal liability of individuals, on which current international criminal law is grounded, and (ii) the failure of the ICC Statute fully to comply with the principle of legality. The first deficiency is illustrated by highlighting the notions of genocide …

An Honest Approach To Plea Bargaining, Steven P. Grossman

All Faculty Scholarship

In this Article, the author argues that differential sentencing of criminal defendants who plead guilty and those who go to trial is, primarily, a punishment for the defendant exercising the right to trial. The proposed solution requires an analysis of the differential sentencing motivation in light of the benefit to society and the drawbacks inherent in the plea bargaining system.

To Transform The International Criminal Trial: Merging Restorative And Retributive Justice, Mark Findlay

Research Collection Yong Pung How School Of Law

This paper establishes the case for trial transformation looking at a model of justice that is more inclusive and cognisant of competing aspirations for justice resolutions internationally.

Summary Of Fiegehen V. State, 121 Nev. Adv. Op. 30, Michael Shalmy

Nevada Supreme Court Summaries

An intruder entered a residence, killed one person and shot another. The victim placed a 911 call, but within minutes, the 911 connection went dead. Sheriff's deputies arrived at the residence shortly thereafter and found one victim alive, lying on the floor in a pool of blood. The telephone line nearby had been cut. A body was discovered on a deck outside. Evidence implicated Christopher Fiegehen as the primary suspect. However, he abruptly fled Nevada on the day of the crime. Two months later, he was stopped and questioned by police officers in Indiana, where they apprehended him after a …

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

ExpressO

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 …

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

ExpressO

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” …

Summary Of Wilson V. State, 121 Nev. Adv. Op. 34, Kathleen L. Fellows

Nevada Supreme Court Summaries

A jury convicted Wiley Gene Wilson of four counts of use of a minor in the production of pornography and four counts of possession of visual presentations depicting sexual conduct of a person under sixteen years of age. Wilson appealed, arguing that his four convictions for using a child in a sexual performance were redundant convictions. In September of 2001, Wilson and the ten-year-old female victim (M.T.) left M.T.'s father's trailer to attend to errands related to installing a satellite television system. Apparently, while running errands and stuck in traffic, M.T. urinated in her clothing. Subsequently, Wilson took M.T. to …

Summary Of State V. Dist. Court (Riker), 121 Nev. Adv. Op. 25, Kimberly Lou

Nevada Supreme Court Summaries

The State of Nevada convicted David Robert Riker (“Riker”) for murder. Riker filed two sets of post-conviction petitions for the writ of habeas corpus—one in 1998 and one in 2004. The district court denied the 1998 petition, but granted the 2004 petition and an evidentiary hearing. The State of Nevada petitioned the Nevada Supreme Court for a writ of mandamus or prohibition arguing that Riker’s habeas corpus claims are procedurally barred and that the district court exceeded its jurisdiction in granting a hearing. The Nevada Supreme Court agreed in part with the State and ordered the district court to apply …

State Of Israel V. Jerusalem Magistrates Court, Dorit Beinisch, Mishael Cheshin, Aharon Barak

Translated Opinions

Facts: The third respondent (‘the respondent’) was indicted in the Jerusalem Magistrates Court for an offence of committing an indecent act. The victim of the alleged offence (‘the complainant’) kept a personal diary and the parts that were relevant to the period during which the complainant and the respondent were acquainted with one another were photocopied and sent to counsel for the respondent.

Counsel for the respondent applied to inspect the whole diary under s. 74 of the Criminal Procedure Law. The Magistrate Court ordered the prosecution to produce the whole diary for inspection by the court, after an ex …

Pursuing Justice For The Mentally Disabled, Grant H. Morris

University of San Diego Public Law and Legal Theory Research Paper Series

This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as “sanism,” which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin’s characterization …

Dickerson V. United States: The Case That Disappointed Miranda's Critics--And Then Its Supporters, Yale Kamisar

University of San Diego Public Law and Legal Theory Research Paper Series

It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda’s constitutional status has become less and less meaningful.

In this paper I want to focus on the Court’s characterization of statements elicited in violation of the Miranda warnings as not actually “coerced” …

Overcriminalization, Discretion, Waiver: A Survey Of Possible Exit Strategies, Donald A. Dripps

University of San Diego Public Law and Legal Theory Research Paper Series

In both the constitutional law of American criminal justice and the scholarly literature that law has generated, substance and procedure receive radically different treatment. The Supreme Court, even in this conservative political period, continues to require costly procedural safeguards that go beyond what elected legislatures have provided by statute. The Court, however, has shown great deference to the choices these same legislatures have made about what conduct may be made criminal and how severely it may be punished.

The distinction between substance and procedure pervades academic thinking all the way down to its foundations. Substantive criminal law still holds its …

Missing Miranda's Story, A Review Of Gary L. Stuart's, Miranda: The Story Of America's Right To Remain Silent, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

Miranda v. Arizona is the best known criminal procedure decision in the history of the Supreme Court. It has spawned dozens of books and hundreds of articles. The world does not need another Miranda book unless it has something new and interesting to tell readers. Unfortunately, to borrow an old cliche, the parts of Gary Stuart’s book that are new are, for the most part, not interesting and the parts that are interesting are, for the most part, not new. Stuart adds material to the Miranda storehouse about the involvement of local Arizona lawyers and judges in the original case, …

New Jersey’S Adult Internet Luring Statute: An Appropriate Next Step?, John W. Lomas Jr.

Duke Law & Technology Review

New Jersey recently enacted legislation prohibiting the use of the Internet to lure or entice someone to a location with the purpose of committing a crime with or against that person or some other person. Most states have similar laws pertaining to pedophiles, but this is the first adult Internet luring statute. State measures to regulate the Internet, even in the context of criminal justice, will likely face constitutional challenge since the Internet has become such a critical vehicle for both protected speech and interstate commerce. Furthermore, while the use of the Internet in the commission of crimes against other …

The Market For Criminal Justice: Federalism, Crime Control, And Jurisdictional Competition, Doron Teichman

Michigan Law Review

Part I introduces the concepts of jurisdictional competition and crime displacement and argues that, as a positive matter, a decentralized criminal justice system may create a competitive process among the different units composing it, in which each such unit attempts to divert crime to neighboring communities. Part II then turns to evaluate the normative aspects of jurisdictional competition in the area of criminal justice. In this context I will show that competition can have both advantages and disadvantages. On one hand, the forces of competition might drive jurisdictions to fight crime efficiently, since any jurisdiction that functions inefficiently will suffer …

Victims Of Peace: Current Abuse Allegations Against U.N. Peacekeepers And The Role Of Law In Preventing Them In The Future, Alexandra R. Harrington

ExpressO

This article addresses the increasingly prevalent and horrific allegations of sexual abuse made against U.N. peacekeepers. The primary allegations addressed are those from the Congo, as the most plentiful and readily available evidence of these abuses comes from the region. The goal of this paper is not merely to critique the U.N. and its handling of the current peacekeeper abuse allegations, as such a critique would only serve half of the problem. Rather, this paper will use the past and current understandings of the U.N. Charter, peacekeeping, international law, and military justice to suggest several options for handling both the …

Summary Of Rosky V. State, 121 Nev. Adv. Op. No. 22, Jason Peck

Nevada Supreme Court Summaries

Police executed a search warrant at John Rosky’s apartment as part of an investigation into the sexual assault of a 13-year-old girl. Two police officers eventually drove Rosky to a police substation for questioning but they did not formally arrest him or administer Miranda warnings. Police informed Rosky that his participation was voluntary and that he was free to leave at any time. At one point during the questioning, Rosky took a ten-minute break and went outside the police station unaccompanied by the detectives. The detectives used mild forms of deception and confronted Rosky with their belief that he was …

Summary Of Viray V. State, 121 Nev. Adv. Op. 19, Chris Orme

Nevada Supreme Court Summaries

A jury convicted Benjardi Batucan Viray for lewdness with a minor. He appealed claiming that there was an improper inclusion of new information at a preliminary hearing and that this inclusion was sufficient to declare a mistrial. The Nevada Supreme Court held that a change in the factual situation is not sufficient to declare a mistrial if the inclusion of new information does not affect the defendant’s substantial rights and the charged offense remained the same. The second issue was whether a court should declare a mistrial when a juror disregards the admonishment of the court to not speak about …

The Crawford Issue- The Supreme Court Sharpens The Teeth Of The Confrontation Clause, Nathan Reed Haines

ExpressO

No abstract provided.

Foreword: Beyond Blakely And Booker: Pondering Modern Sentencing Process, Douglas A. Berman

The Ohio State University Moritz College of Law Working Paper Series

The Supreme Court’s landmark decision in Blakely v. Washington and its federal follow-up United States v. Booker are formally about the meaning and reach of the Sixth Amendment’s right to a jury trial. But these decisions implicate and reflect, both expressly and implicitly, a much broader array of constitutional provisions and principles, in particular, the Due Process Clause of the Fifth and Fourteenth Amendments and the notice provision of the Sixth Amendment. And the future structure and operation of modern sentencing systems may greatly depend on how courts and others approach the due process provisions and principles which lurk in …

State Of Israel V. Avraham Ben-Hayim, Dorit Beinisch

Translated Opinions

Facts: The respondent, the manager of the Postmen Department at the Benei Berak branch of the Postal Authority, was charged, before the Civil Service Disciplinary Tribunal, with sexually harassing and victimizing a woman (the complainant) who was working temporarily at the branch. The tribunal found that the respondent promised to ensure the promotion of the complainant, and it found that the respondent had conducted a sexual relationship with the complainant in which full sexual intercourse had taken place. In addition the respondent tried to prevent the complainant making a complaint against him. The tribunal found that an abuse of authority …

Sita's Trousseau: Restorative Justice, Domestic Violence, And South Asian Culture, Rashmi Goel

Sturm College of Law: Faculty Scholarship

This article focuses on the particular cultural factors that affect South Asian women who are abused and immigrant South Asian women who are abused, in particular, in the restorative justice process. By exploring cultural practices and the icon of Sita, the mythological heroine of the Ramayana, this article demonstrates how the South Asian ideals of womanhood and wifehood help to create a mind-set whereby South Asian women are reluctant to advocate for themselves and are reluctant to leave. Such a condition is contrary to the conditions and abilities assumed by the restorative justicemovement for dispute resolution, inside or outside of …

Countering Terrorism: From Wigged Judges To Helmeted Soldiers - Legal Perspectives On America's Counter-Terrorism Responses, Jackson Nyamuya Maogoto

San Diego International Law Journal

This Article aims to evaluate the international legal perspectives attendant to U.S. counter-terrorism measures and policy and the attendant strictures an implications. Part II commences by grappling with the uneasy relationship that legal and political complexities have foisted on the UN's ability to address terrorism and the difficult issue of the definition of terrorism. Within the context of this part, the Article also addresses the two dominant counter-terrorism paradigms-law enforcement and conflict management. Part III oves on to evaluate the law enforcement paradigm which treats terrorism as a crime engaging domestic law enforcement. This part offers a discussion of the …

The Prohibition Of Widespread Rape As A Jus Cogens, Dean Adams

San Diego International Law Journal

This Comment explains why the prohibition of widespread rape should be recognized as a jus cogens through analyses of the failure of existing international legal instruments, advances within international law towards the universal prohibition of widespread rape, and policy reasons for classifying widespread rape as a jus cogens. In doing so, this comment will demonstrate the particular timeliness of this topic by reviewing the use of widespread rape in several countries through the 1990s, the widespread rape presently occurring in Kenya, and the emerging reports from Iraq of rape committed at the hands of the Saddam Hussein regime. Finally, this …