Criminal Law Commons^™

Rhode Island's Top Lawyer: Peter Kilmartin, Rwu Class Of 1998 5-2018, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Insane: James Holmes, Clark V. Arizona, And America's Insanity Defense, Eric Collins

Journal of Law and Health

Insanity is a legal term of art that changes definitions depending on the legal standard in American jurisprudence, which explains why a man who mental health professionals described as having an uncontrollable obsession with killing people can be found not insane and guilty. This Note addresses the current state of the Insanity Defense Reform Act of 1984 and its widespread implementation at the state level. Part II supplies background information on the history of the insanity defense and how it has transformed over the years in American jurisprudence. Part III provides an analysis of the of the insanity defense. Part …

Prisoner's Dilemma—Exhausted Without A Place Of Rest(Itution): Why The Prison Litigation Reform Act's Exhaustion Requirement Needs To Be Amended, Ryan Lefkowitz

The Scholar: St. Mary's Law Review on Race and Social Justice

The Prison Litigation Reform Act (PLRA) passed in 1996 in an effort to curb litigation from prisoners. The exhaustion requirement of the PLRA requires prisoners to fully exhaust any administrative remedies available to them before filing a lawsuit concerning any aspect of prison life. If a prisoner fails to do so, the lawsuit is subject to dismissal. The exhaustion requirement applies to all types of prisoner lawsuits, from claims filed for general prison conditions to excessive force and civil rights violations. It has been consistently and aggressively applied by the courts, blocking prisoners’ lawsuits from ever going to trial. Attempts …

Trapped In The Shackles Of America's Criminal Justice System, Shristi Devu

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Rethinking Bail Reform, Wendy R. Calaway, Jennifer M. Kinsley

University of Richmond Law Review

The issue of pretrial detention is part of a larger, national conversation on criminal justice reform. However, no single issue permeates the landscape of criminal justice like the treatment of pretrial defendants. The policies and practices around pretrial detention have contributed to the country’s mass incarceration numbers; created a crisis for local jail management; generated unsustainable budgets; and raised important questions about race, class, and the constitutional implications of incarcerating people because they are too poor to pay a money bond. Legal scholars have written about the issue, highlighting the inequities and constitutional difficulties with such a system. Much of …

Rapid Dna Testing And Virginia's Rape Kit Backlog: A Double-Edged Sword Masquerading As A Miracle, Or The Future Of Forensic Analysis?, Emma C. Greger

University of Richmond Law Review

While Rapid DNA technology has the potential to revolutionize every aspect of the criminal justice system, from arrest to the postconviction appeals process, there has been particular excitement centered around its potential to reduce the rape kit backlog.

Non-Contact Excessive Force By Police: Is That Really A Thing?, Michael J. Jacobsma

University of Richmond Law Review

When people hear the words “police” and “excessive force,” they usually associate those words with an unjustified assault and battery, or lethal force made against suspects by law enforcement officers during an arrest or investigation. When such acts occur, the victim of the excessive force has the right to pursue a civil action against the police officer pursuant to 42 U.S.C. § 1983 if committed by state or local police, or a Bivens action if committed by federal agents. But can a police officer be sued for excessive force without making any physical contact with the plaintiff? The answer to …

The #Metoo Movement: An Invitation For Feminist Critique Of Rape Crisis Framing, Jamie R. Abrams

University of Richmond Law Review

This article invites feminists to leverage the #MeToo Movement as a critical analytical tool to explore the longevity of the enduring rape crisis framing of victim services. Long before the #MeToo Movement, victim services in communities nationwide were framed around a crisis model. For nearly half a century, victims have visited rape crisis centers, called rape crisis hotlines, and mobilized rape crisis response teams to provide services and support. This enduring political and social framing around rape as a crisis is opaque, has prompted a political backlash, and risks distorting hard-fought feminist legal, social, and political battles. It has yielded …

Aspects Of The Jury In Criminal Proceedings, Hannah Akers

Senior Honors Theses

Although a trial by jury happens in only a fraction of the total criminal cases, the jury is one of the most intriguing facets of criminal proceedings. This thesis intends to delve into the various aspects of the criminal jury’s history, formulation, and processes. The different areas included are jury selection, elimination of bias, the jury’s role in criminal trials, their deliberations, determining a verdict, and potential problems with the system that is currently in place. All trials can be expected to have foundational court procedures, readings of the law, opening statements and closing arguments, and testimonies, but it ultimately …

Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing

Texas A&M Law Review

During the early stages of the Trump ICE age, America seemed to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Did we not label Barack Obama the “deporter-inchief?” Was it not George W. Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries, and did his ICE not commonly engage in armed raids at factories and other worksites? Are there not strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras? What about the fear and hysteria that seems …

Police, Heroes, And Child Trafficking: Who Cries When Her Attacker Wears Blue?, Samuel Vincent Jones

Nevada Law Journal

No abstract provided.

Potential Jurors’ Perceptions Of Polygraphs In Court, Jacob Schiess

Boise State University Theses and Dissertations

The polygraph occupies a contentious place in the justice system. The instrument detects various physical responses and records these results, and the examiner interprets the readings and makes a determination on whether the test subject was truthful or deceptive. Polygraphs are, in some jurisdictions, a part of the court process and in others are forbidden. On the whole, there is less research on the polygraph and their permissibility in the legal process compared to other types of evidence. There is even less research on the opinions of jurors, especially compared to surveys of criminal justice professionals. That which is present …

Enforcing Statutory Maximums: How Federal Supervised Release Violates The Sixth Amendment Rights Defined In Apprendi V. New Jersey, Danny Zemel

University of Richmond Law Review

The Sixth Amendment commands that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Trial by a jury of one’s peers is a fundamental American legal right, existing in the earliest colonies before being codified in both Article III of the Constitution and the Sixth Amendment. The jury trial right derives from “the mass of the people,” ensuring that “no man can be condemned of life, or limb, or property, or reputation, without the concurrence of the …

Underdeveloped And Over-Sentenced: Why Eighteen- To Twenty-Year-Olds Should Be Exempt From Life Without Parole, Emily Powell

University of Richmond Law Review

Sentencing eighteen- to twenty-year-olds to life without parole should be considered cruel and unusual because it is disproportionate to this class of offenders’ culpability.

Unstitching Scarlet Letters?: Prosecutorial Discretion And Expungement, Brian M. Murray

Fordham Law Review

This Article argues that scholarly discussions about prosecutorial discretion need to extend their focus beyond the exercise of prosecutorial judgment pretrial or questions of factual and legal guilt. Given that the primary role of the prosecutoris to do “justice,” this Article calls for increased attention to the exercise of discretion after the guilt phase is complete, specifically in the context of expungement of nonconviction andconviction information. It offers a framework for exercising such discretion and, in doing so, hopes to initiate additional conversation about the role of prosecutors during the phases that follow arrest and prosecution.

Courts Have Gone Overboard In Applying The Maritime Drug Law Enforcement Act, Elaina Aquila

Fordham Law Review

The Maritime Drug Law Enforcement Act (MDLEA), enacted through Congress’s power to “define and punish . . . Felonies Committed on the high Seas,” prosecutes individuals for drug trafficking “on board” vessels. Individuals often raise jurisdictional defenses in U.S. courts when prosecuted under MDLEA, and scholarship in the area argues about whether the Constitution permits MDLEA to reach drug traffickers who are on the high seas. Recently, courts have begun using MDLEA to prosecute foreign nationals located in a foreign nation who are not on board a vessel as conspirators. However, no court has fully examined Congress’s authority to enact …

Regulating Search Warrant Execution Procedure For Stored Electronic Communications, Sara J. Dennis

Fordham Law Review

Electronic communication services, from email, to social media, tomessaging applications, have not only dramatically changed daily life but have also had a profound impact on criminal investigations and procedure.The often large volume of electronically stored information has led to a two-step process for search warrant execution, codified in Federal Criminal Procedure Rule 41. When conducting a search pursuant to Rule 41, law enforcement often retains both responsive items—materials that fall within the scope of the warrant—and nonresponsive materials—intermingled items that can be searched, but ultimately exceed the scope of the warrant. This possession of nonresponsive material creates a tension between …

The Failure Of International Law In Palestine, Svetlana Sumina, Steven Gilmore

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Framed By Forensics: Fulfilling Daubert's Gatekeeping Function By Segregating Science From The Adversarial Model, Kayla Marie Mannucci

Cardozo Law Review

The note argues that flawed forensic expert testimony significantly contributes to wrongful convictions, undermining the criminal justice system's objective to acquit the innocent. It highlights how partisan bias, lack of scientific validation, and inadequate judicial gatekeeping under Daubert v. Merrell Dow Pharmaceuticals, Inc. have led to the admission of unreliable forensic evidence. The note proposes a reform: requiring neutral, court-appointed experts in high-stakes forensic cases to ensure objective testimony and prevent partisan bias.

Whom Should We Punish, And How? Rational Incentives And Criminal Justice Reform, Keith N. Hylton

Faculty Scholarship

This Article sets out a comprehensive account of rational punishment theory and examines its implications for criminal law reform. Specifically, what offenses should be subjected to criminal punishment, and how should we punish? Should we use prison sentences or fines, and when should we use them? Should some conduct be left to a form of market punishment through private lawsuits? Should fines be used to fund the criminal justice system? The answers I offer address some of the most important public policy issues of the moment, such as mass incarceration and the use of fines to finance law enforcement. The …

Errors In Misdemeanor Adjudication, Samuel R. Gross

Articles

Millions of defendants are convicted of misdemeanors in the United States each year but almost none obtain exonerations, primarily because ordinarily exoneration is far too costly and time consuming to pursue for anything less than years of imprisonment. The National Registry of Exonerations lists all known exonerations in the United States since 1989 — 2,145 cases, as of the end of 2017; only 85 are misdemeanors, 4%. In all but one of these misdemeanor exonerations the defendants were convicted of crimes that never happened; by comparison, more than three-quarters of felony exonerees were convicted of actual crimes that other people …

Life After Daubert V. Merrell Dow: Maine As A Case Law Laboratory For Evidence Rule 702 Without Frye, Leigh Stephens Mccarthy

Maine Law Review

In reaching its recent decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court grappled not with case law but with fundamental questions about the nature of science and its role in law. The court in Daubert addressed the problematic issue of admissibility of expert scientific testimony. In the end the Court rejected as an exclusionary rule the venerable standard set in 1923 by Frye v. United States. Frye held that scientific testimony was to be excluded unless it had gained “general acceptance” in its field. Daubert held that Rule 702 of the Federal Rules of Evidence …

Prosecutorial Summation: Where Is The Line Between "Personal Opinion" And Proper Argument?, James W. Gunson

Maine Law Review

Prosecutorial forensic misconduct has become front page news in Maine. Since April of 1993, the Maine Supreme Judicial Court, sitting as the Law Court, has reversed convictions in three highly publicized cases based on remarks made by the prosecutor. In State v. Steen, the prosecutor asked the defendant to give his opinion concerning the veracity of other witnesses and suggested in closing argument that the favorable testimony given by the defense's expert witness resulted from the fee he had received. The Law Court vacated the gross sexual assault conviction, finding that the prosecutor's questions and closing argument “clearly suggested” to …

Life Course Outcomes For Juveniles: Contact With The Criminal Justice System As A Turning Point, Dominique Tauffner

Honors Projects

This research investigated the life course outcomes of respondents who have been arrested during adolescence. Although the creation of the juvenile justice system is relatively recent, only existing for 119 years, there is a need for data on the impact this system has on society. The pre-existing knowledge and literature on juvenile delinquency and the criminal justice system often fails to capture longitudinal data. Most scholars on this issue will discuss the immediate effects of things like incarceration and placement or what influences delinquency, ignoring the long-term consequences or life outcomes of those that have been arrested prior to 18. …

The Right Of Early Access To Criminal Legal Aid In Indonesia: Clear Rule, Clearer Violations, Maxwell Abbott

Indonesia Law Review

This article will examine the right of early access to criminal legal aid in Indonesia, both in theory and in practice. In theory, the right of early access to criminal legal aid (the Right) is clear and firmly established in Indonesian law and international law which applies to Indonesia: individuals under arrest or in detention are entitled to receive legal aid at all stages of the criminal justice process. Therefore, law enforcement may not deny or delay a suspect’s access to a lawyer during the initial procedural stages of arrest, investigation and detention. This article will argue that the Right …

Reforming Indonesian Rape Law: Adopting U.S. Rape Shield Law In Excluding Prejudicial Evidence, Choky R. Ramadhan

Indonesia Law Review

Rape is a complicated crime in term of law enforcement. It is usually occurred by someone who has close relationship or connection to the victim. The availability of evidence is also limited. Unfortunately, sexual violence victim often does not receive proper handling from law enforcement. In several cases, the judge undermined victim’s testimony because of past sexual history and lack of resistance that led to more lenient punishment or acquit the defendant. Therefore, I assert that rape law itself should be revised to minimize judge’s prejudice or bias to several shreds of evidence. I suggest that Indonesia could learn from …

Improving The Role Of Experts Under Indonesian Criminal Procedure Law: Lessons Learned From The Dutch Legal System, Josua Sitompul

Indonesia Law Review

This article attempts to scrutinize the role of expert under KUHAP and examine how Indonesian courts have interpreted and applied relevant rules and principles of the expert in selected cybercrime cases. It finds that the main role of expert in such cases is providing the courts with opinions on the legal and technical meanings of the legal provisions at stake and their contextualization in the cases. This raises a question whether law enforcement agencies comprehend the execution of the provisions. It also shows that law enforcement agencies are not always interested in getting digital forensic examination from which electronic evidence …

Human Trafficking And Local Law Enforcement, Elizabeth Chesbrough

Honors Projects

“To protect our kids, we’ve given law enforcement new tools to fight human trafficking (Brett Guthrie).” Though Brett’s hopeful sentiment portrays a police force that is ready to battle the epidemic of modern day slavery, research has shown that local officers are sorely uneducated on the subject. The main focus of this paper is the link between the prevalence of human trafficking in the U.S. and the lack of local law enforcement training on the issue. The first section will be a brief overview of human trafficking, defining and discussing a few relevant details about it first. Next, I will …

What Unconditional Credence In Individual Desert Claims Does Retributivism Require?, Emad H. Atiq

Cornell Law Faculty Publications

Punishing a person based on low unconditional credence in their deservingness to be punished is consistent with retributivist deontological principles. Negative retributivism absolutely prohibits the intentional or knowing infliction of undeserved harm on individuals identified as undeserving, not the intentional or knowing infliction of risks of undeserved harm on individuals. Meanwhile, the knowing infliction of undeserved harm on some unidentified individuals generates not overriding reasons against punishment, but pro tanto reasons against punishment that are to be weighed against other non-overriding reasons for punishment like crime prevention. The upshot is that uncertainty regarding any identified person’s deservingness to be punished …

Neil Gorsuch And The Return Of Rule-Of-Law Due Process, Nathan Chapman

Popular Media

Something curious happened at the Supreme Court last week. While the country was glued to the Cirque du Trump, the rule of law made a comeback, revived by Neil Gorsuch, whose place on the Court may prove to be one of Trump’s most important legacies.

Unlike the partisan gerrymander and First Amendment cases currently pending before the Court, immigration cases are usually long on textual analysis and short on grand themes. Accordingly, court-watchers didn’t have especially high expectations for Sessions v. Dimaya.