Criminal Law Commons^™

Personal Benefit Has No Place In Misappropriation Tipping Cases, Merritt B. Fox, George N. Tepe

Faculty Scholarship

The Supreme Court’s decision in Salman v. United States left unanswered an important issue concerning the reach of Rule 10b-5’s prohibitions with respect to trades based on a tip of material inside information: in cases based on the misappropriation theory, is it necessary to show that the tipper enjoyed a personal benefit of which the trader was aware? The personal benefit test was originally developed in the context of tipping cases based on the classical theory of insider trading. The Supreme Court in Salman explicitly said that it was not reaching the matter of whether the test should be extended …

Do The Ends Justify The Means? Policing And Rights Tradeoffs In New York City, Amanda Geller, Jeffrey Fagan, Tom R. Tyler

Faculty Scholarship

Policing has become an integral component of urban life. New models of proactive policing create a double-edged sword for communities with strong police presence. While the new policing creates conditions that may deter and prevent crime, close surveillance and frequent intrusive police-citizen contacts have strained police-community relations. The burdens of the new policing often fall on communities with high proportions of African American and Latino residents, yet the returns to crime control are small and the risks of intrusive, impersonal, aggressive non-productive interactions are high. As part of the proffered tradeoff, citizens are often asked to view and accept these …

Aggressive Policing And The Educational Performance Of Minority Youth, Joscha Legewie, Jeffrey A. Fagan

Faculty Scholarship

An increasing number of minority youth are confronted with the criminal justice system. But how does the expansion of police presence in poor urban communities affect educational outcomes? Previous research points at multiple mechanisms with opposing effects. This article presents the first causal evidence of the impact of aggressive policing on the educational performance of minority youth. Under Operation Impact, the New York Police Department (NYPD) saturated high crime areas with additional police officers with the mission to engage in aggressive, order maintenance policing. To estimate the effect, we use administrative data from about 250,000 adolescents aged 9 to 15 …

Devil Take The Hindmost: Reform Considerations For States With A Constitutional Right To Bail, Jordan Gross

Faculty Law Review Articles

This Article submits that any meaningful discussion of bail reform at the state level must be jurisdiction-specific, and it must account for the practical, historical, and philosophical aspects of the state constitutional right to bailability. Part II of this Article is an overview of the origins and history of English and American bail law. Part III describes the role and regulation of commercial bail bonding in the United States. Part IV traces the history and current state of bail reform in the United States. Part V considers legal and practical barriers to reform unique to right-to-bail states, particularly jurisdictions without …

The Innocence Movement And Misdemeanors, Jenny M. Roberts

Scholarly Articles in Law Reviews & Journals

In recent years, the Innocent Movement has begun to focus its attention on wrongful misdemeanor convictions as a systemic problem. This Article analyzes eighty-five documented misdemeanor exonerations and concludes that innocence has been demonstrated primarily in two ways: laboratory tests of alleged unlawful drugs that reveal “no controlled substance” despite the individual having pled guilty to misdemeanor drug possession; and police body camera or citizen videos that surface after a misdemeanor conviction to contradict the factual basis for that conviction. Strategic use of these relatively definitive methods of revealing wrongful misdemeanor convictions can call attention to the flaws in misdemeanor …

Shooting Down Oliphant: Self-Defense As An Answer To Crime In Indian Country, Adam Crepelle

Lewis & Clark Law Review

Crime is a dire public safety problem in Indian country as Indians suffer violent crime at twice the rate of any other racial group. Indian country’s unique and confusing jurisdictional scheme combined with a shortage of police leave Indians easy targets for those looking to commit crimes. A largely unexplored answer to crime in Indian country is self-defense. This Article posits that the United States self-defense jurisprudence may make self-defense the most practical solution to crime in some parts of Indian country.

The Article discusses the history of self-defense laws and the relationship between self-defense laws and firearms. The Article …

Book Review, Thomas Morawetz

Faculty Articles and Papers

Reviewing Daniel S. Medwed ed., Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent, Cambridge: Cambridge University Press, 2017 and Sharon Dolovich and Alexandra Natapoff eds., The New Criminal Justice Thinking, New York: New York University Press, 2017.

Big Data Policing And The Redistribution Of Anxiety, Kiel Brennan-Marquez

Faculty Articles and Papers

By equipping police with data, what are we trying to accomplish? Certain answers ring familiar. For one thing, we are trying to make criminal justice decisions, plagued as they often are by inaccuracy and bias, more refined. For another, we are trying to boost the efficiency of governance institutions-police departments, prosecutor's offices, municipal courts-that operate under the pall of scarcity.

For the moment, I want to put answers like these to one side; not because they are wrong, but because they seem like only part of the story. Another goal of big data policing, in addition to those just described, …

The Role Of Section 718.2(A)(Ii) In Sentencing For Male Intimate Partner Violence Against Women, Isabel Grant

All Faculty Publications

This article examines sentencing for male intimate partner violence against women since the 1996 enactment of s 718.2(a)(ii) of the Criminal Code, which requires that a spousal/common-law relationship between an offender and victim be considered an aggravating factor in sentencing. The article argues that, while in general appellate courts in Canada are taking this violence seriously, cases involving level I sexual assaults still demonstrate the longstanding tendency to treat the intimate relationship as mitigating. Further appellate guidance is necessary on how courts should reconcile s 718.2(a)(ii) with s 718.2(e), which requires that all options other than incarceration be considered when …

Brock Turner: Sorting Through The Noise, Michael Vitiello

University of the Pacific Law Review

No abstract provided.

Mandating Meaningful Forensic Discovery: A Proposal To Fuel The Engine Of Truthfulness, Marjorie Mcdiarmid

Faculty & Staff Scholarship

No abstract provided.

Capitalizing On Criminal Justice, Eisha Jain

Faculty Publications

No abstract provided.

Proportionality And Other Misdemeanor Myths, Eisha Jain

Faculty Publications

No abstract provided.

Climbing The Mountain Of Criminal Procedure: Comparative Legal Procedure, Stephen R. Galoob

Articles, Chapters in Books and Other Contributions to Scholarly Works

Book review of Comparative Criminal Procedure (Jacqueline E. Ross & Stephen C. Thaman eds., Edward Elgar, 2016)

Criminal Procedure: Confessions, Searches, And Seizures, Honorable Michael E. Keasler, Benjamin S. Brown

SMU Annual Texas Survey

No abstract provided.

Trials By Peers: The Ebb And Flow Of The Criminal Jury In France And Belgium, Claire M. Germain

UF Law Faculty Publications

The participation of lay jurors in criminal courts has known much ebb and flow both in France and in Belgium. These two countries belong to the civil law tradition, where juries are the exception rather than the rule in criminal trials, and they only exist in criminal cases, not civil cases. In spite of some similarities, there are substantial differences between the two countries, and their systems will be examined in turn.

In France, the Cour d’assises itself was inherited from the French Revolution. Since a law of 1941, it is a mixed jury system, meaning that lay citizens sit …

Assessing The Real Risk Of Sexually Violent Predators: Doctor Padilla's Dangerous Data, Tamara Rice Lave, Franklin E. Zimring

Articles

This Article uses internal memoranda and emails to describe the efforts of the California Department of Mental Health to suppress a serious and well-designed study that showed just 6.5% of untreated sexually violent predators were arrested for a new sex crime within 4.8 years of release from a locked mental facility. The Article begins by historically situating sexually violent predator laws and then explains the constitutionally critical role that prospective sexual dangerousness plays in justifying these laws. The Article next explains how the U.S. Supreme Court and the highest state courts have allowed these laws to exist without requiring any …

Falcon V. State: Should The Florida Supreme Court Have Opened The Door For Sentencing Review Of Juveniles Sentenced To Life In Prison For Murder?, Jamie L. Wilson

St. Thomas Law Review

This Comment addresses the implications on victim's families and society regarding the resentencing and future sentencing of juveniles who have been convicted of murder. Specifically, this Comment will focus on the factors judges are required to consider before a life sentence is imposed, while proposing a solution to balance the factors in order to ensure victim's rights are not overlooked. Part II explores the required juvenile sentencing factors mandated by the United States Supreme Court in Miller, and further explores Florida's response as evidenced in Falcon, Atwell v. State, and Landrum v. State. Part II further discusses Florida's previous statutory …

How The War On Terror Is Transforming Private U.S. Law, Maryam Jamshidi

UF Law Faculty Publications

In thinking about the War on Terror’s impact on U.S. law, what most likely comes to mind are its corrosive effects on public law, including criminal law, immigration, and constitutional law. What is less appreciated is whether and how the fight against terrorism has also impacted private law. As this Article demonstrates, the War on Terror has had a negative influence on private law, specifically on torts, where it has upended long-standing norms, much as it has done in the public law context.

Case law construing the private right of action under the Antiterrorism Act of 1992, 18 U.S.C. § …

Alternative Systems Of Crime Control. National, Transnational, And International Dimensions, Emmanouil Billis, Ulrich Sieber, Valsamis Mitsilegas, Christos Mylonopoulos, Knust Nandor, Lorena Bachmaier Winter, Chrisje Brants, Thierry Delpeuch, Jacqueline E. Ross, Stephen C. Thaman, Niovi Vavoula, John A.E. Vervaele, Philipp Ambach, Nils Andrzejewski, Florian Jessberger, James Stewart, Nikos Theodorakis

All Faculty Scholarship

The typical trial-oriented systems of criminal justice that are primarily based on the strict application of substantive criminal law have reached their functional and logistical limits in most parts of the modern legal world. As a result, new sanction models, less formal, administrative, and discretionary case disposals, plea bargaining arrangements, and other alternative procedural and transitional justice mechanisms have emerged at unprecedented levels in national and international legal orders affiliated both with the civil law and the common law tradition. These normative constructs and practices aim at abbreviating, simplifying, or circumventing the conventional criminal investigation and prosecution. They seek to …

Public Defense Litigation: An Overview, Lauren Sudeall Lucas

Faculty Publications By Year

No abstract provided.

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

Law Student Publications

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.

Debunked, Discredited, But Still Defended: Why Prosecutors Resist Challenges To Bad Science And Some Suggestions For Crafting Remedies For Wrongful Conviction Based On Changed Science, Aviva A. Orenstein

Articles by Maurer Faculty

Flawed science has significantly contributed to wrongful convictions. Courts struggle with how to address such convictions when the mistaken science (such as bogus expert claims about the differences between accidental fires and intentionally set ones) significantly affected the guilty verdict but there is no DNA evidence to directly exonerate the accused. My short piece explores why prosecutors often defend bad science. Mistakes in science tend to serve the prosecution, but there are other more subtle factors that explain prosecutors’ reluctance to address flawed forensic testimony. Such reluctance may arise from fondness for the status quo and a resistance to subverting …

Jurisdiction-Specific Wrongful Conviction Rate Estimates: The North Carolina And Utah Examples, Paul Cassell

Utah Law Faculty Scholarship

Determining an error rate for wrongful convictions remains among the most pressing problems in the criminal justice literature. In a response to my earlier article, Professor George Thomas has offered an intriguing way to make that determination—through examining innocence cases uncovered through North Carolina’s Innocence Inquiry Commission. This Reply reassesses Thomas’s North Carolina estimate rate, concluding it to be somewhat too high. This Reply then looks at another state—my home state of Utah—to find another possible jurisdictionspecific error rate. Properly calculated, the wrongful conviction rates for North Carolina and Utah support my earlier-offered suggestion of a wrongful conviction rate in …

Sentencing Through The Media: How The Media Can Help Strengthen Legal Sanctions Against Sexual Assault By College Athletes, Samantha C. Huddleston

Marquette Sports Law Review

None

Lobbying As A Strategy For Tribal Resilience, Kirsten Matoy Carlson

Law Faculty Research Publications

No abstract provided.

Career Motivations Of State Prosecutors, Ronald F. Wright, Kay L. Levine

Faculty Articles

Because state prosecutors in the United States typically work in local offices, reformers often surmise that greater coordination within and among those offices will promote sound prosecution practices across the board. Real transformation, however, requires commitment not only from elected chief prosecutors but also from line prosecutors—the attorneys who handle the daily caseloads of the office. When these individuals’ amenability to reform goals and sense of professional identity is at odds with the leadership, the success and sustainability of reforms may be at risk.

To better understand this group of criminal justice professionals and their power to influence system reforms, …

Supreme Irrelevance: The Court’S Abdication In Criminal Procedure Jurisprudence, Tonja Jacobi, Ross Berlin

Faculty Articles

Criminal procedure is one of the Supreme Court’s most active areas of jurisprudence, but the Court’s rulings are largely irrelevant to the actual workings of the criminal justice system. The Court’s irrelevance takes two forms: objectively, on the numbers, its jurisprudence fails to protect the vast majority of people affected by the criminal justice system; and in terms of salience, the Court has sidestepped the major challenges in the United States today relating to the criminal justice system. These challenges include discrimination in stops and frisks, fatal police shootings, unconscionable plea deals, mass incarceration, and disproportionate execution of racial minorities. …

The Legal Risks Of Big Data Policing, Andrew Guthrie Ferguson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Republican Party, Conservatives, And The Future Of Capital Punishment, Ben Jones

Journal of Criminal Law and Criminology

The United States has experienced a significant decline in the death penalty during the first part of the twenty-first century, as death sentences, executions, public support, and states with capital punishment all have declined. Many recent reforms banning or placing a moratorium on executions have occurred in blue states, in line with the notion that ending the death penalty is a progressive cause. Challenging this narrative, however, is the emergence of Republican lawmakers as champions of death penalty repeal legislation in red states. This Article puts these efforts by Republican lawmakers into historical context and explains the conservative case against …