Criminal Law Commons^™

Electronic Devices At The Border: The Next Frontier Of Canadian Search And Seizure Law?, Robert Currie

Articles, Book Chapters, & Popular Press

Over the last several years the Supreme Court of Canada has developed its jurisprudence regarding the search and seizure of electronic devices, applying section 8 of the Canadian Charter of Rights and Freedoms in such a way as to assert and protect a significant amount of privacy in the devices and their data. Recent cases regarding the search of devices at Canada’s borders, however, do not reflect this case law. This is a situation made all the more complex by the generally attenuated expectation of privacy in the border context, and is worthy of inquiry. Using a pending border case …

Unlocking The Doors To Canadian Older Inmate Mental Health Data: Rates And Potential Legal Responses, Adelina Iftene

Articles, Book Chapters, & Popular Press

This article is based on a quantitative study investigating the quality of life of older Canadian prisoners. For this study, social science methodology was used to answer certain legal questions, such as: what are the mental health issues of older male offenders and how are these needs influencing the exercise of their legal rights? Are institutions prepared to deal with the increased needs of older offenders? If no, is this an infringement of this group's rights? In this article, the mental health problems of older offenders are first outlined. Second, the legal, policy, and institutional limitations in responding to these …

The Political Implications Of Felon Disenfranchisement Laws In The United States, Katharine G. Connaughton

CMC Senior Theses

This empirical study analyzes the political implications for presidential election outcomes that stem from varying felon disenfranchisement laws within the United States. In the past decade incarceration rates have drastically increased, consequently augmenting the disenfranchised population. This paper focuses on presidential election outcomes and state political party majorities in the election years 2000, 2004, 2008, and 2012. I use demographic characteristics to calibrate assumptions for voter turnout and political party choice among the disenfranchised populations within each state. I then apply these voting populations to historical election outcomes and find that three state political party outcomes change, as well as …

The Ethical Identity Of Sexual Assault Lawyers, Elaine Craig

Articles, Book Chapters, & Popular Press

Despite progressive law reforms, sexual assault complainants continue to experience the criminal justice response to the violations that they have suffered as unsatisfactory, if not traumatic. One emerging response to this dilemma involves greater consideration of the ethical boundaries imposed on lawyers that practice sexual assault law. What is the relationship between a criminal lawyer’s ethical duties and the reforms to the law of sexual assault in Canada? How do lawyers themselves understand the ethical limits imposed on their conduct of a sexual assault case? How do lawyers that practice in this area of law comprehend their role in the …

Judging The Social Sciences In Carter V Canada (Ag), Jodi Lazare

Articles, Book Chapters, & Popular Press

This paper examines a recent example of evidence-based decision making affecting social policy at the trial court level. It offers a close reading of Carter v Canada (AG), decided by the British Columbia Supreme Court, and of Justice Lynn Smith's careful scrutiny of the social science evidence when invalidating the Criminal Code prohibition on assistance in dying. Drawing on literature which examines the legal system's use of social science evidence and expert witnesses, this paper suggests that Justice Smith's treatment of the evidence in Carter provides an example of skilled judicial treatment of the extensive amounts of social science evidence …

Section 276 Misconstrued: The Failure To Properly Interpret And Apply Canada's Rape Shield Provisions, Elaine Craig

Articles, Book Chapters, & Popular Press

Despite the vintage of Canada’s rape shield provisions (which in their current manifestation have been in force since 1992), some trial judges continue to misinterpret and/or misapply the Criminal Code provisions limiting the use of evidence of a sexual assault complainant’s other sexual activity. These errors seem to flow from a combination of factors including a general misunderstanding on the part of some trial judges as to what section 276 requires and a failure on the part of some trial judges to properly identify, and fully remove, problematic assumptions about sex and gender from their analytical approach to the use …

Talking Foreign Policy: The Iran Nuclear Accord, Paul Williams, Milena Sterio, Avidan Cover, Mike Newton

Scholarly Articles in Law Reviews & Journals

No abstract provided.

State-Enabled Crimes, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

International crimes are committed by individuals, but many – from genocide in Rwanda to torture at Abu Ghraib – would not have occurred without the integral role played by the State. This dual contribution, of individual and State, is intrinsic to the commission of what I term “State-Enabled Crimes.” Viewing international adjudication through the rubric of State-Enabled Crimes highlights a feature of the international judicial architecture that is typically taken for granted: its bifurcated structure. Notwithstanding the deep interrelationship between individual and State in the commission of State-Enabled Crimes, the international legal system adjudicates the responsibility of each under two …

The Death Penalty And Mental Illness In International Human Rights Law, Richard Wilson

Scholarly Articles in Law Reviews & Journals

Introduction: This symposium primarily focuses on the extraordinary legal and personal saga of one man, Joe Giarratano, his decades-long heroic struggle to overturn his death sentence and, ultimately, to obtain his release and exoneration. Prior to the conference, my only acquaintance with the Giarratano case was the decision in Murray v. Giarratanol-the U.S. Supreme Court decision holding that the Sixth Amendment right to appointed counsel does not extend to the post-conviction stages of death penalty litigation. The symposium provided a much broader perspective on the saga of Joe Giarratano, whose own legal skills parallel those of the many lawyers involved …

Enforcing Compliance With Constitutionally-Required Disclosures: A Proposed Rule, Emmet G. Sullivan

Cardozo Law Review de•novo

To provide a striking example of the need for a federal disclosure rule, in Part I, I briefly summarize a report on the discovery abuses that occurred in the case of United States v. Theodore F. Stevens. In Part II, I describe efforts beginning in 2003 to amend Rule 16. In Part III, I provide an overview of the local district court disclosure rules and standing orders nationwide. Part III also provides the proposed rule now being considered for adoption by the United States District Court for the District of Columbia.

The Influence Of Emotion On Memory For A Crime, Taylor Langley

College of Graduate Studies: Theses & Dissertations

Researchers have reported errors in recall or recognition of witnessed events, accounting for the most common cause of false convictions of innocent people. Tiwari (2010) indicated that 25% of suspects who were identified in a line-up were actually innocent. Jurors are strongly influenced by eyewitness testimony and this can lead to false convictions. The validity of eyewitness identification is critical in cases in which it is used as evidence. In the current study we examined specific emotion states by inducing fear, surprise, and neutral moods. We hypothesized that participants in the Fear group would be least susceptible to the effects …

Wrongfully Convicted In California: Are There Connections Between Exonerations, Prosecutorial And Police Procedures, And Justice Reforms?, Justin P. Brooks, Zachary Brooks

Faculty Scholarship

No abstract provided.

Law Enforcement Access To Data Across Borders: The Evolving Security And Rights Issues, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Training For Bargaining, Jenny M. Roberts, Ronald F. Wright

Scholarly Articles in Law Reviews & Journals

While plea bargaining dominates the practice of criminal law, preparation for trial remains central to defense attorneys’ training. Negotiation is still peripheral to that training. Defense lawyers enter practice with little exposure to negotiation techniques and strategies in the plea bargaining context, the most significant skills they use every day.

Empirical research on plea negotiations has concentrated on outcomes of negotiations rather than the process itself. Our multi-phase field study examines the negotiation techniques that attorneys use during plea bargaining, as well as their preparation and training for negotiation. This Article explores the data on the training aspects of our …

Are Hispanics Discriminated Against In The Us Criminal Justice System?, Maria A. Eijo De Tezanos Pinto

Graduate Research Posters

Recent publications have contributed to increase the perception among Hispanics of an unfair and unequal treatment of this community by the US Criminal Justice System. One of the major concerns was the claim that Hispanics are incarcerated before conviction nearly twice as often as Whites. Unfair treatment perception by the population reduces legitimacy of police and government, and thus, it is imperative to analyze these uninvestigated allegations. Therefore, the purpose of this study is to address said allegations of discrimination against Hispanics and analyze with updated and reliable statistics whether Hispanics are incarcerated before conviction more often than Whites. There …

A Domestic Consequence Of The Government Spying On Its Citizens: The Guilty Go Free, Mystica M. Alexander, William P. Wiggins

Brooklyn Law Review

In recent years, a seemingly endless stream of headlines have alerted people to the steady and relentless government encroachment on their civil liberties. Consider, for example, headlines such as “U.S. Directs Agents to Cover Up Program Used to Investigate Americans,” “DEA Admits to Keeping Secret Database of Phone Calls,” or “No Morsel Too Miniscule for All-Consuming N.S.A.” Of concern is not only the U.S. government’s collection of data on its citizens, but also how that information is aggregated, stored, and used. The Fourth Amendment protects citizens from unreasonable searches and seizures by the government. While the drafters of the Fourth …

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii

Brooklyn Law Review

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …

Waive Goodbye To Appellate Review Of Plea Bargaining: Specific Performance Of Appellate Waiver Provisions Should Be Limited To Extraordinary Circumstances, Holly P. Pratesi

Brooklyn Law Review

In the federal criminal justice system, plea bargaining remains the predominant method for disposing of cases. An important provision in most plea agreements consists of the waiver of the defendant’s right to appeal the conviction or sentence. This note explores the constitutional, contractual, and policy implications of a recent Third Circuit decision that would allow specific performance as a remedy where a defendant’s only breach of the plea agreement consists of filing an appeal arguably precluded by an appellate waiver provision. This note argues that the approach taken by the Third Circuit in United States v. Erwin could effectively preclude …

"Outsmarting" Death By Putting Capital Punishment On Life Support: The Need For Uniform State Evaulations Of The Intellectually Disabled In The Wake Of Hall V. Florida, Taylor B. Dougherty

Brooklyn Law Review

While the Supreme Court has yet to hold capital punishment per se unconstitutional, the Court has exempted certain groups of individuals from being eligible for capital punishment, due to concerns about the protection against cruel and unusual punishment provided for in the 8th Amendment. One such group is individuals who are intellectually disabled (the term which replaced the long-used mental retardation). But in exempting such individuals from capital punishment in its decision in Atkins v. Virginia, the Court left it to the states to establish metrics for determining which defendants are in fact intellectually disabled so as to warrant …

Free Kick: Fifa’S Unintended Role In Illuminating Jurisdictional Gaps Of International Criminal Courts, Travis L. Marmara

Brooklyn Journal of International Law

In the wake of the FIFA corruption scandal of 2015, certain realities have come to light. FIFA’s corruption knows no bounds, but fans of the sport will watch nonetheless. What is less apparent is that the two most prominent international criminal courts—the International Court of Justice (ICJ) and the International Criminal Court (ICC) fail to have jurisdiction over the FIFA organization or its officials when they engage in white-collar crimes that sanction human rights abuses abroad. This Note examines how FIFA officials’ acceptance of Qatari bribes to host the 2022 World Cup exposed alarming jurisdictional inadequacies of the ICJ and …

“Chi S’Aiuta, Dio L’Aiuta”: Balancing Italy’S Right To Utilize Assisted Reproductive Technologies With The Teachings Of The Catholic Church, Erin A. Mcmullan

Brooklyn Journal of International Law

Adelina Parrillo never anticipated starting a prolonged legal battle when she requested her embryos be donated for scientific research. The restrictive legislation in place in Italy, inevitably influenced by the Catholic Church, mandated that she either implant the embryos or store them indefinitely. After a long drawn out battle with the Italian courts, she desperately sought assistance from the European Court of Human Rights (ECtHR), a court tasked with protecting the rights of individuals such as Parrillo from the overreaching of Member States. The ECtHR) acknowledged that this decision, to donate her unused embryos to medical research, was within the …

Making The Time Fit The Crime: Clearly Defining Online Harassment Crimes And Providing Incentives For Investigating Online Threats In The Digital Age, A. Meena Seralathan

Brooklyn Journal of International Law

This Note examines online harassment and online stalking throughout the world, including the current landscape of Internet communication, the effects of cyberharassment and cyberstalking on its victims, and both the difficulties in defining these crimes in criminal codes and the difficulties in inspiring law enforcement to investigate complex internet crimes. Specifically, this Note discusses the problems inherent in current cyberharassment and cyberstalking treaties and legislation within the United States, Canada, and Australia. For example, this Note analyzes how these jurisdictions define cyberharassment and cyberstalking, how these definitions are inadequate for dealing with current forms of cyberharassment and cyberstalking (both due …

Another Bite At The Apple For Trade Secret Protection: Why Stronger Federal Laws Are Needed To Protect A Corporation's Most Valuable Property, Alissa Cardillo

Brooklyn Journal of Corporate, Financial & Commercial Law

Trade secrets are one of a corporation’s most valuable assets. However, they lack adequate protection under federal law, leaving them vulnerable to theft and misappropriation. As technology advances, it becomes easier and less time consuming for individuals and entities to access and steal trade secrets to a corporation’s detriment. Most often these thefts involve stealing trade secrets in an intangible form. Current legislation fails to adequately protect intangible trade secrets, leaving them vulnerable to theft. An amendment to the National Stolen Property Act that encompasses intangible trade secrets would close a loophole that currently exists relating to intangible assets, allowing …

Switch Hitters: How League Involvement In Daily Fantasy Sports Could End The Prohibition Of Sports Gambling, Jordan Meddy

Brooklyn Journal of Corporate, Financial & Commercial Law

Whether in the form of lotto tickets or casino table games, gambling is legally permitted in some way in virtually every U.S. state. Yet, in all but a handful of jurisdictions, federal law prohibits wagering on sporting events or professional athletes in any form. Several economically challenged states, particularly New Jersey, have been trying to authorize sports gambling within their borders as a way to raise tax revenues and support their local gambling industries. While these attempts have thus far been unsuccessful, Daily Fantasy Sports have simultaneously experienced a meteoric rise, becoming a multi-billion dollar industry. This Note examines the …

How Much Punishment Is Enough?: Embracing Uncertainty In Modern Sentencing Reform, Jalila Jefferson-Bullock

Journal of Law and Policy

This article examines federal sentencing reform and embraces the principle of uncertainty in this process. In order to properly reapportion federal criminal sentencing laws, reformers must account for the impracticality of determining appropriate incarceration lengths at sentencing. Thus, this article proposes an alternative federal sentencing model that includes a sentencing effectiveness assessment tool to help lawmakers implement rational sentences that appropriately punish offenders, prepare them to successfully reenter society, and reduce recidivism rates. Modern sentencing reform should adopt constant review and evaluation of sentencing to measure effectiveness and ensure that appropriate sentences are implemented to avoid the pitfalls of an …

Law & Neuroscience: What, Why, And Where To Begin, Owen D. Jones, Jeffrey D. Schall, Francis X. Shen

Vanderbilt Law School Faculty Publications

This provides the Summary Table of Contents and Chapter 1 of our coursebook “Law and Neuroscience” (forthcoming April 2014, from Aspen Publishing). Designed for use in both law schools and beyond, the book provides user-friendly introductions, as well as detailed explorations, of the many current and emerging issues at the intersection of law and neuroscience.

One part of the book lays general foundations by exploring the relationships between law and science generally, and by comparing the views from law and from neuroscience regarding behavior and responsibility. A later part explains the basics of brain structure and function, the methods for …

Parsing The Behavioral And Brain Mechanisms Of Third-Party Punishment, Owen D. Jones, Matthew Ginther, Richard J. Bonnie, Morris B. Hoffman, Francis X. Shen, Kenneth W. Simons, Rene Marois

Vanderbilt Law School Faculty Publications

The evolved capacity for third-party punishment is considered crucial to the emergence and maintenance of elaborate human social organization and is central to the modern provision of fairness and justice within society. Although it is well established that the mental state of the offender and the severity of the harm he caused are the two primary predictors of punishment decisions, the precise cognitive and brain mechanisms by which these distinct components are evaluated and integrated into a punishment decision are poorly understood.

Using a brain-scanning technique known as functional magnetic resonance imaging (fMRI), we implemented a novel experimental design to …

What Gideon Did, Sara Mayeux

Vanderbilt Law School Faculty Publications

Many accounts of Gideon v Wainwright s legacy focus on what Gideon did not do--its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few "outlier" states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes. Drawing on original historical research, this Article instead chronicles what Gideon did-the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession's policy consensus on indigent defense away …

The Invisible Revolution In Plea Bargaining: Managerial Judging And Judicial Participation In Negotiations, Nancy J. King, Ronald F. Wright

Vanderbilt Law School Faculty Publications

This article, the most comprehensive study of judicial participation in plea negotiations since the 1970s, reveals a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly 100 judges and attorneys in ten states, we found that what once were informal, disfavored interactions have quietly, without notice, transformed into highly structured, best practices for docket management. We learned of grant-funded, problem-solving sessions complete with risk assessments and real-time information on treatment options; multi-case conferences where other lawyers chime in; settlement courts located at the jail; settlement dockets with retired judges; full-blown felony mediation …

Guns And Drugs, Benjamin Levin

Scholarship@WashULaw

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, the Article uses as its test case the criminal regulation of gun possession. The Article identifies and distills three lines of drug-war criticism, and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, the Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social costs of mass incarceration. Scholars have …