Criminal Law Commons^™

Foreword: Is Justice Just Us?, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This is a review of JUSTICE, LIABILITY AND BLAME, by Paul Robinson and John Darley. The book is a summary of 18 studies which surveyed lay subjects about their attitudes toward various aspects of criminal law doctrine, including the act requirement for attempt, omission liability, accomplice liability, the felony-murder role, and the intoxication and insanity defenses. In virtually every study, the authors found that the subjects disagreed with the Model Penal Code's position, the common law's position, or both. The authors contend that results of surveys such as theirs should play a significant role in designing criminal doctrine, both because …

The Criminal Defense Lawyer's Fiduciary Duty To Clients With Mental Disability, Christopher Slobogin, Amy Mashburn

Vanderbilt Law School Faculty Publications

This Article has argued that the defense attorney has a multifaceted fiduciary duty toward the client with mental disability. That duty requires, first and foremost, respect for the autonomy of the client. The lawyer shows that respect not only by heeding the wishes of the competent client but by refusing to heed the wishes of the incompetent client. A coherent approach to the competency construct is therefore important. Following the lead of Professor Bonnie, this Article has broken competency into two components: assistance competency and decisional competency. It has defined the former concept in traditional terms, as an understanding of …

The French Experience With Duty To Rescue: A Dubious Case For Criminal Enforcement, Edward A. Tomlinson

Faculty Scholarship

No abstract provided.

Continuing Payment Of One's Debt To Society: The German Model Of Felon Disenfranchisement As An Alternative, Nora V. Demleitner

Scholarly Articles

None available.

The Problem Of Obtaining Evidence For International Criminal Courts, Jacob Katz Cogan

Faculty Articles and Other Publications

International criminal courts will be judged by their fairness to defendants as well as to victims. In a very practical way, such claims will hinge, inter alia, on the ability of prosecutors and defendants to have reasonable access to probative evidence. But international criminal courts depend on states to provide them with evidence or access to evidence. The obligation of states to cooperate with international criminal tribunals in the production of evidence was at issue in the recent decision of the International Criminal Tribunal for the former Yugoslavia in the Blaki case (1997). That judgment and the provisions of the …

Filling In Some Pieces: The Supreme Court’S Criminal Law Decisions In The 1998-1999 Term, William E. Hellerstein

Touro Law Review

No abstract provided.

Vehicle Searches – The Automobile Exception: The Constitutional Ride From Carroll V. United States To Wyoming V. Houghton, Martin L. O'Connor

Touro Law Review

No abstract provided.

Meaning And Motive In The Law Of Homicide (Reviewing Samuel H. Pillsbury, Judging Evil: Rethinking The Law Of Murder And Manslaughter), Guyora Binder

Book Reviews

Many criminal law scholars have criticized the Model Penal Code’s restrictive conception of culpability as awareness of risk, and have sought to incorporate motives and desires into culpoability analysis. In his excellent book Judging Evil, Samuel Pillsbury has applied this richer conception of culpability to homicide law. The result is a comprehensive theory of homicide liability, unified by an effort to predicate liability on deficient moral reasoning rather than merely awareness of risk. This review essay explicates and commends Pillsbury’s theory but also criticizes one crucial deficiency. Pillsbury shrinks from one of the most obvious but potentially most controversial implications …

Here Today, Gone Tomorrow - Three Common Mistakes Courts Make When Police Lose Or Destroy Evidence With Apparent Exculpatory, Elizabeth A. Bawden

Cleveland State Law Review

Part I of this Article examines the first question, what does it mean for evidence to have "apparent exculpatory value?" Part II of this Article answers the second question, when does Youngblood's bad faith requirement apply in failure to preserve evidence cases? Part III then seeks to determine the substance of Youngblood's bad faith requirement and identify the best approach to defining it. Ultimately, this Article argues that there are three common mistakes that courts make when applying Trombetta and Youngblood.

The Grand Jury And Exculpatory Evidence: Should The Prosecutor Be Required To Disclose Exculpatory Evidence To The Grand Jury, Ali Lombardo

Cleveland State Law Review

In 1992, the United States Supreme Court ruled in United States v. Williams that the federal courts do not have the supervisory power to require prosecutors to present exculpatory evidence to the grand jury. This Note argues that the Williams decision is flawed because it diminishes crucial rights of defendants and because it prevents the grand jury from fulfilling its protective function. In Section II, this Note examines the historical background and purpose of the grand jury in England and America. Section III discusses the Williams decision and the rationale behind both the majority and dissenting opinions. It also discusses …

Felony Murder And Mens Rea Default Rules: A Study In Statutory Interpretation, Guyora Binder

Journal Articles

The Model Penal Code's influential approach to culpability included default rules assigning a culpable mental state to every conduct, circumstance and result element of each offense. Such rules have been enacted in half of the American states. The Code's drafters also rejected what they understood to be the felony murder rule's imposition of "a form of strict liability for... homicide." Yet almost every state has retained some form of the felony murder rule and so repudiated the Model Penal Code's proposed reform. Because the Model Penal Code's disapproval of felony murder flows from its general disapproval of strict liability, the …

Framed: Utilitarianism And Punishment Of The Innocent, Guyora Binder, Nicholas J. Smith

Journal Articles

This paper is a defense of utilitarian penology, against the familiar retributivist charge that it promotes framing the innocent, and other charges similarly depending on the notion that utilitarianism encourages officials to deceive the public. Our defense proceeds from the striking fact that utilitarianism's critics do not cite textual evidence that the originators of utilitarian penology in fact endorsed punishing the innocent or deceiving the public. Instead, critics claim that these unsavory policies follow logically from the premises of utilitarianism. Our argument, in brief, is that the charge of framing the innocent rests on a misunderstanding of utilitarian penology. We …

The Reach Of Icc Jurisdiction Over Non-Signatory Nationals, Jordan J. Paust

Vanderbilt Journal of Transnational Law

A new International Criminal Court (ICC) was created on July 17, 1998 under the Rome Statute adopted by the United Nations Diplomatic Conference on Plenipotentiaries on the Establishment of an International Criminal Court. Under the Statute, the ICC will have jurisdiction over crimes of genocide, certain crimes against humanity, and certain war crimes, leaving the crime of aggression for further definition.

Nonetheless, there are certain preconditions to the exercise of such jurisdictional competence, as noted especially in Articles 12-14 of the Statute. In general, the Court can exercise jurisdiction if a "situation" or case (1) is referred to the Prosecutor …

Not Twice For The Same: How The Dual Sovereignty Doctrine Is Used To Circumvent "Non Bis In Idem", Dax E. Lopez

Vanderbilt Journal of Transnational Law

Today, it is quite possible for a criminal defendant who has violated the laws of several countries with one criminal act to be subject to multiple prosecutions. In situations where two countries share concurrent criminal jurisdiction, it is unclear whether the defendant would be able to rely on some level of double jeopardy protection. International law currently does not obligate a sovereign state to recognize another state's penal judgments, thus allowing states to prosecute a defendant regardless of any legal action that may have been previously taken against the defendant. Several countries, however, have chosen to provide defendants with at …

A Proposal For A New Massachusetts Notoriety For Profit Law: The Grandson Of Sam, Sean J. Kealy

Faculty Scholarship

In recent years, two women stood convicted of highly publicized major crimes in Massachusetts. Katherine Ann Power ("Power") was a fugitive who committed felony-murder in 1970. She led a life on the run as a fugitive until 1993 when she revealed her true identity and surrendered to authorities to face the consequences of her crimes. Louise Woodward ("Woodward"), an au pair originally from England, gained notoriety on both sides of the Atlantic Ocean when she was convicted of killing the baby entrusted to her care. Both women captured the attention of the national media for months and reportedly had opportunities …

A New Start Calls For A Broadened Perspective, Nora V. Demleitner

Scholarly Articles

Not available.

Humpty Dumpty On Mens Rea Standards: A Proposed Methodology For Interpretation, Katherine R. Tromble

Vanderbilt Law Review

"When I use a word.., it means just what I choose it to mean-neither more nor less.", This statement by Humpty Dumpty sets forth the argument of this Note: words used to describe mens rea in federal criminal statutes have plain, ordinary meanings. When the United States Supreme Court interprets these statutes, it should do so according to the words' plain meanings. Because the Court has not used this approach in past cases, the law of mens rea on the federal level is confusing and inconsistent.

The Court has tried to repair poorly drafted statutes by interpreting them in various …

Preventing Internal Exile: The Need For Restrictions On Collateral Sentencing Consequences, Nora V. Demleitner

Scholarly Articles

None available.

Is Capital Punishment A Deterrent To Crime?, Greg Warren Colyer

Theses Digitization Project

No abstract provided.

The Most Aggravated And Least Mitigated Murders: Capital Proportionality Review In Florida, Ken Driggs

St. Thomas Law Review

In this article I will briefly discuss the evolution of death penalty law after Furman v. Georgia, including the three statutory models that nearly every death penalty state has adopted. Part of this evolution was the development of proportionality review. I will then discuss Florida's "weighing" statute and how proportionality fits into that. Then I will discuss the specifics of the Florida Supreme Court's approach to proportionality review in death penalty direct appeals. I will elaborate on how the Supreme Court has considered commonly encountered, broad factual situations in death sentences. I will briefly discuss a recent amendment to Article …

Williamson V. Gregoire: How Much Is Enough? The Custody Requirement In The Context Of Sex Offender Registration And Notification Statutes, Tina D. Santos

Seattle University Law Review

This Note argues that the Ninth Circuit was wrong. The registration and notification provisions operate to constructively restrain the liberty of a convicted sex offender and, therefore, Mr. Williamson is "in custody" for purposes of habeas corpus relief. To support this proposition, this Note will first discuss the federal statute pertaining to habeas corpus and review the case law interpreting the jurisdictional requirement that the petitioner be "in custody"; second, review and discuss Washington State's sex offender registration and notification statutes; and finally, analyze the relevant statute and analogous case law in the context of Washington's sex offender laws in …

Life, Death And The Law - And Why Capital Punishment Is Legally Insupportable , Peter Fitzpatrick

Cleveland State Law Review

Given that law has an integral commitment to life, in this lecture I want to show how the law should manifest something of a fundamental dissonance, even a terminal incoherence, when law is called upon to deal death. That is what happens in the judicial discourse on the death penalty in the United States. I will approach this demonstration in a way that may at first seem paradoxical, in a way that will bring out the deep affinity between law and death. That affinity is one in which death is, in a sense, the limit of law; a limit that …

Temporal Units Of Prosecution And Continuous Acts: Judicial And Constitutional Limitations

San Diego Law Review

Part II will examine the

historical development and the Supreme Court's application of the so- called rule of lenity when adjudicating cases involving statutes with

unclear units of prosecution Part II will also examine the manner in which unclear draftsmanship has been treated in other areas of law and

will compare those areas of law with the rationale behind the rule of lenity. Finally, Part II will conclude by arguing that the rule of lenity creates a presumption opposing multiple prosecutions for the continuing violation of a statute, unless there is clear legislative intent to the contrary. Part M11 will …

Criminal Law: "Am I My Brother's Keeper?" Sherrice's Law: A Balance Of American Notions Of Duty And Liberty, Justin T. King

Oklahoma Law Review

No abstract provided.

Justice Blackmun's Mark On Criminal Law And Procedure, Kit Kinports

Faculty Scholarship

When Justice Blackmun was nominated to the Court in 1970, Americans were consumed with the idea of crime control. In the 1968 presidential campaign, Richard Nixon had called the Supreme Court "soft on crime" and had promised to "put 'law and order' judges on the Court." While sitting on the Eighth Circuit, the Justice had "seldom struck down searches, seizures, arrests or confessions," and most of his opinions in criminal cases had "affirmed guilty verdicts and sentences." Thus, according to one commentator, Justice Blackmun seemed to be "exactly what Nixon was looking for: a judge who believed in judicial restraint, …

The Place Of Victims In The Theory Of Retribution, George P. Fletcher

Faculty Scholarship

Remarkably, the theory of criminal law has developed without paying much attention to the place of victims in the analysis of responsibility or in the rationale for punishment. You can read a first-rate book like Michael Moore's recent Placing Blame and not find a single reference to the relevance of victims in imposing liability and punishment. In the last several decades we have witnessed notable strides toward attending to the rights and interests of crime victims, but these concerns have yet to intrude upon the discussion of the central issues of wrongdoing, blame, and punishment.

Admittedly, victims and their sentiments …

The Federalization Of Crime And Sentencing, Nora V. Demleitner

Scholarly Articles

Not available.

Comparative Law Symposium: Is There A European Advantage In Criminal Procedure: Preface, Carl M. Selinger

West Virginia Law Review

No abstract provided.

Introduction: Adding A Comparative Perspective To American Criminal Procedure Classes, Albert W. Alschuler

West Virginia Law Review

No abstract provided.

Main-Streaming Comparative Criminal Justice: How To Incorporate Comparative And International Concepts And Materials Into Basic Criminal Law And Procedure Courses, Richard S. Frase

West Virginia Law Review

No abstract provided.