Criminal Law Commons^™

Introduction, Kate Price

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

When Sex Trafficking Victims Turn Eighteen: The Problematic Focus On Force, Fraud, And Coercion In U.S. Human Trafficking Laws, Julianne Siegfriedt

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Creative Capitalism And Human Trafficking: A Business Approach To Eliminate Forced Labor And Human Trafficking From Global Supply Chains, Dana Raigrodski

William & Mary Business Law Review

A great amount of revenue generated by businesses in the global economy can be linked to the trafficking and enslavement of human beings. Yet, the current discourse on human trafficking fails to recognize the magnitude of benefit consumers, businesses, and economies gain from the work of forced and trafficked labor. Moreover, the limited efforts that seek to address this situation have focused on ways to encourage businesses to voluntarily adopt more socially responsible practices. These measures have had only limited success, and are generally believed to be in tension with the for-profit purposes of businesses. Hence, the task of convincing …

Joint Criminal Trials

The Catholic Lawyer

No abstract provided.

Brief Of The National Association For Public Defense As Amici Curiae Supporting Petitioner, Christensen V. United States Of America (U.S. November 7, 2016) (No. 16-461)., Janet Moore

Faculty Articles and Other Publications

The jury is essential to our structure of government, available to criminal defendants as the final arbiter of guilt. As this Court has recognized time and again, the jury serves an important role both structurally within the balance of powers and as a check on governmental power, adding a layer of protection for individual defendants.

The rule applied by the Ninth Circuit and some other courts, allowing dismissal of a holdout juror if a judge sees no reasonable possibility that his view is connected to the merits of the case, threatens the fundamental role of the jury. In contrast to …

Newsroom: Margulies Cited On Military Commissions 11-04-2016, Peter S. Margulies

Life of the Law School (1993- )

No abstract provided.

Brief Of Appellant, John Hill V. State Of Maryland, No. 2740, Paul Dewolfe, Renée M. Hutchins, Silva Georgian

Court Briefs

No abstract provided.

Police Body-Worn Camera Policy: Balancing The Tension Between Privacy And Public Access In State Law, Kyle J. Maury

Notre Dame Law Review

Body camera implementation remains in its infancy stage. As such,

there is a dearth of legal scholarship analyzing the policy considerations associated

with body cameras. Instead of raising the issues involved and assessing

arguments for and against implementation, this Note assumes body cameras

are a force for good and are here to stay for the long haul. Consequently, the

goal of this Note is to analyze various issues involved in administering body

cameras against a backdrop of recently enacted state legislation—focusing

specifically on the tension between protecting privacy interests while also

ensuring public access to recordings. This Note examines these …

Prosecutorial Accountability 2.0, Bruce Green, Ellen Yaroshefsky

Notre Dame Law Review

This Article describes the rhetorical and regulatory changes that characterize

the new prosecutorial accountability, identifies the conditions that

have enabled them to occur, and considers their implications. While identifying

various necessary conditions, the Article argues that information technology

has been the essential catalyst; the evolution could not be sustained

without the aggregation, accessibility, and communication of data and commentary

about prosecutorial misconduct that new information technology

makes readily available to the public. Given the permanence of information

technology in modern society, the Article concludes by cautiously predicting

that the contemporary regulatory movement will be sustained; the pendulum

will not swing …

Criminals Behind The Veil: Political Philosophy And Punishment, Chad Flanders

Brigham Young University Journal of Public Law

No abstract provided.

Plea Bargaining And Prosecutorial Motives, Charlie Gerstein

The University of New Hampshire Law Review

This Article argues that the structure of the plea-bargaining system—which the Supreme Court recently recognized “is the criminal justice system”—hinges on something previously unappreciated by scholars and unaddressed in criminal procedure doctrine: prosecutors’ motives. This Article addresses that problem by studying the prosecutor’s disclosure obligations when defendants plead guilty. Courts and commentators have been divided for years over whether Brady v. Maryland applies when defendants plead guilty. But the current split blinds us to more important, and more vexing, aspects of the problem. The fact is, there already is a disclosure obligation, albeit a hidden one. Armed with an …

Unconventional Methods For A Traditional Setting: The Use Of Virtual Reality To Reduce Implicit Racial Bias In The Courtroom, Natalie Salmanowitz

The University of New Hampshire Law Review

The presumption of innocence and the right to a fair trial lie at the core of the United States justice system. While existing rules and practices serve to uphold these principles, the administration of justice is significantly compromised by a covert but influential factor: namely, implicit racial biases. These biases can lead to automatic associations between race and guilt, as well as impact the way in which judges and jurors interpret information throughout a trial. Despite the well-documented presence of implicit racial biases, few steps have been taken to ameliorate the problem in the courtroom setting. This Article discusses the …

Bringing Balance To The Force: The Militarization Of America’S Police Force And Its Consequences, Anta Plowden

University of Miami Law Review

The current trend in the militarization of police can be traced back to the earliest times in our country. We are soon approaching a tipping point in which the combination of aggressive military tactics, wrongful deaths and injuries, and a lack of accountability will lead to an increase in civil unrest and animosity towards those who have sworn to uphold the law. In an ironic twist of fate, the military force, which law enforcement is trying to emulate, has made sharp adjustments in the way it operates due to the missions in Iraq and Afghanistan. It has adopted more police-like …

Neuroscience And The Civil/Criminal Daubert Divide, Erin Murphy

Fordham Law Review

This Article speculates on the course of neuroscience-as-proof with an eye toward the actual admissibility standards that will govern the acceptance of such evidence by courts, not just as a matter of formal law but also as a function of historical custom. Given the legal system’s spotty record with scientific evidence—which is to say, both the demonstrated willingness of the system to admit unproven “science” or to exclude evidence despite a seemingly adequate scientific foundation—the trajectory of neuroscience in the courts cannot be predicted simply by asking about its scientific legitimacy in the abstract. Rather, an observer must ponder whether …

No Quick Fix: The Failure Of Criminal Law And The Promise Of Civil Law Remedies For Domestic Child Sex Trafficking, Charisa Smith

University of Miami Law Review

Pimps and johns who sexually exploit children garner instant public and scholarly outrage for their lust for a destructive “quick fix.” In actuality, many justifiably concerned scholars, policymakers, and members of the public continue to react over-simplistically and reflexively to the issue of child sex trafficking in the United States—also known as commercial sexual exploitation of children (CSEC)—in a manner intellectually akin to immediate gratification. Further, research reveals that the average john is an employed, married male of any given race or ethnicity, suggesting that over-simplification and knee-jerk thinking on CSEC are conspicuous. This Article raises provocative questions that too …

Foreword, Deborah W. Denno

Fordham Law Review

This Foreword provides an overview of Criminal Behavior and the Brain: When Law and Neuroscience Collide, a symposium hosted by the Fordham Law Review and cosponsored by the Fordham Law School Neuroscience and Law Center. While the field of neuroscience is vast—generally constituting “the branch of the life sciences that studies the brain and nervous system”— this symposium focused on the cutting-edge ties between neuroscience evidence and the different facets of criminal law. Such an intersection invited commentary from an expert group on a wide span of topics, ranging from the historical underpinnings between law and neuroscience to the …

Correctional Change Through Neuroscience, Arielle R. Baskin-Sommers, Karelle Fonteneau

Fordham Law Review

Currently, the U.S. criminal justice system is under intense scrutiny. High- profile cases question the appropriateness of specific types of evidence, decision making in sentencing, and the treatment of convicted offenders. Clearly, these issues are not new. And, as has been historically the case, the justice system looks toward science for assistance in addressing and redressing problems with the delivery of justice.

Seeing Voices: Potential Neuroscience Contributions To A Reconstruction Of Legal Insanity, Jane Campbell Moriarty

Fordham Law Review

Part I of this Article explains the insanity defense in the United States. Next, Part II discusses some of the brain-based research about mental illness, focusing on schizophrenia research. Then, Part III looks at traumatic brain injury and the relationship among injury, cognition, and behavior. Finally, Part IV explains how a new neuroscience-informed standard might better inform our moral decision making about legal insanity.

Young Adulthood As A Transitional Legal Category: Science, Social Change, And Justice Policy, Elizabeth S. Scott, Richard J. Bonnie, Laurence Steinberg

Fordham Law Review

This Article seeks to advance discussions about the potential implications for justice policy of recent neuroscientific, psychological, and sociological research on young adults. In doing so, we emphasize the importance of not exaggerating either the empirical findings or their policy relevance. The available research does not indicate that individuals between the ages of eighteen and twenty are indistinguishable from younger adolescents in attributes relevant to criminal offending and punishment. Thus, we are skeptical on both scientific and pragmatic grounds about the merits of the proposal by some advocates that juvenile court jurisdiction should be categorically extended to age twenty-one. But …

Neuroscience And Criminal Law: Have We Been Getting It Wrong For Centuries And Where Do We Go From Here?, Elizabeth Bennett

Fordham Law Review

Moral responsibility is the foundation of criminal law. Will the rapid developments in neuroscience and brain imaging crack that foundation—or, perhaps, shatter it completely? Although many scholars have opined on the subject, as far as I have discovered, few come from a front-line perspective.

A Perspective On The Potential Role Of Neuroscience In The Court, Ruben C. Gur, Oren M. Gur, Arona E. Gur, Alon G. Gur

Fordham Law Review

This Article presents some lessons learned while offering expert testimony on neuroscience in courts. As a biomedical investigator participating in cutting-edge research with clinical and mentoring responsibilities, Dr. Ruben Gur, Ph.D., became involved in court proceedings rather late in his career. Based on the success of Dr. Gur and other research investigators of his generation, who developed and validated advanced methods for linking brain structure and function to behavior, neuroscience findings and procedures became relevant to multiple legal issues, especially related to culpability and mitigation. Dr. Gur found himself being asked to opine in cases where he could contribute expertise …

Too Sick To Be Executed: Shocking Punishment And The Brain, Joel Zivot

Fordham Law Review

Capital punishment, to be lawfully delivered, must occur without needless cruelty. Cruelty, defined in the setting of punishment, will naturally evolve with the maturation of civil society. Cruel punishment will always be a relative standard, and punishment cannot exceed what is morally shocking. In the setting of public executions, observers and victims share an aspect of the experience of punishment. The inmate has little opportunity to evaluate and report back on cruelty in the moments before death. Once dead, the inmate is necessarily silent on the matter. Empathy allows observers to evaluate punishment as cruel or not. Attempts by the …

Innocent Suffering: The Unavailability Of Post-Conviction Relief In Virginia Courts, Kaitlyn Potter

Law Student Publications

This comment examines actual innocence in Virginia: the progress it has made, the problems it still faces, and the possibilities for reform. Part I addresses past reform to the system, spurred by the shocking tales of Thomas Haynesworth and others. Part II identifies three of the most prevalent systemic challenges marring Virginia‘s justice system: (1) flawed scientific evidence; (2) the premature destruction of evidence; and (3) false confessions and guilty pleas. Part III suggests ways in which Virginia can, and should, address these challenges to ensure that the justice system is actually serving justice.

Innocent Suffering: The Unavailability Of Post-Conviction Relief In Virginia Courts, Kaitlyn Potter

University of Richmond Law Review

This comment examines actual innocence in Virginia: the progress it has made, the problems it still faces, and the possibilities for reform. Part I addresses past reform to the system, spurred by the shocking tales of Thomas Haynesworth and others. Part II identifies three of the most prevalent systemic challenges marring Virginia's justice system: (1) flawed scientific evidence; (2) the premature destruction of evidence; and (3) false confessions and guilty pleas. Part III suggests ways in which Virginia can, and should, address these challenges to ensure that the justice system is actually serving justice.

Criminal Law And Procedure, Aaron J. Campbell

University of Richmond Law Review

No abstract provided.

When Empathy Bites Back: Cautionary Tales From Neuroscience For Capital Sentencing, Sheri Lynn Johnson, Amelia Courtney Hritz, Caisa Elizabeth Royer, John H. Blume

Cornell Law Faculty Publications

The neuroscience of empathy provides one more reason to believe that the decision to sentence another human being to death is inevitably an arbitrary one, and one that cannot be divorced from either race or caprice. While we can tinker with aspects of capital trials that exacerbate caprice and discrimination stemming from empathy, we cannot alter basic neural responses to the pain of others and therefore cannot rationalize (in either sense of the word) empathic responses.

How Prosecutors And Defense Attorneys Differ In Their Use Of Neuroscience Evidence, Deborah W. Denno

Fordham Law Review

Much of the public debate surrounding the intersection of neuroscience and criminal law is based on assumptions about how prosecutors and defense attorneys differ in their use of neuroscience evidence. For example, according to some commentators, the defense’s use of neuroscience evidence will abdicate criminals of all responsibility for their offenses. In contrast, the prosecution’s use of that same evidence will unfairly punish the most vulnerable defendants as unfixable future dangers to society. This “double- edged sword” view of neuroscience evidence is important for flagging concerns about the law’s construction of criminal responsibility and punishment: it demonstrates that the same …

A Glimpse Inside The Brain’S Black Box: Understanding The Role Of Neuroscience In Criminal Sentencing, Bernice B. Donald, Erica Bakies

Fordham Law Review

This Article begins by discussing what neuroscience and the smaller associated field of study, neuropsychology, are and what they can tell us about an individual. It then recounts a brief history of sentencing in the United States. Additionally, it expounds on how the legal system currently utilizes neuroscience in the courts, noting specifically the ways in which neuroscience can be presented during the sentencing phase of trial. Finally, it discusses the use of neuroscience as a mitigating factor during sentencing and how judges can use neuroscience to combat their implicit biases.

Can Neuroscience Help Predict Future Antisocial Behavior?, Lyn M. Gaudet, Jason P. Kerkmans, Nathaniel E. Anderson, Kent A. Kiehl

Fordham Law Review

Part I of this Article reviews the tools currently available to predict antisocial behavior. Part II discusses legal precedent regarding the use of, and challenges to, various prediction methods. Part III introduces recent neuroscience work in this area and reviews two studies that have successfully used neuroimaging techniques to predict recidivism. Part IV discusses some criticisms that are commonly levied against the various prediction methods and highlights the disparity between the attitudes of the scientific and legal communities toward risk assessment generally and neuroscience specifically. Lastly, Part V explains why neuroscience methods will likely continue to help inform and, ideally, …

Neuroscience And Sentencing, Nancy Gertner

Fordham Law Review

This symposium comes at a propitious time for me. I am reviewing the sentences I was obliged to give to hundreds of men—mostly African American men—over the course of a seventeen-year federal judicial career. As I have written elsewhere, I believe that 80 percent of the sentences that I imposedwereunfair,unjust,anddisproportionate. EverythingthatIthought was important—that neuroscientists, for example, have found to be salient in affecting behavior—was irrelevant to the analysis I was supposed to conduct. My goal—for which this symposium plays an important part—is to reevaluate those sentences now under a more rational and humane system, this time at least informed by …