Criminal Law Commons^™

European Perspectives On The Accused As A Source Of Testimonial Evidence, Gordon Van Kessel

West Virginia Law Review

No abstract provided.

Qualified Immunity: Ignorance Excused, Barbara E. Armacost

Vanderbilt Law Review

Public officials receive qualified immunity from damages liability for constitutional violations if they reasonably could have believed their actions were constitutional under clearly established law. In this regard qualified immunity is quite unusual. In most other legal contexts, failure to know the law is virtually never excused. The only other context where notice or knowledge of illegality plays any role is in criminal law, but even mistakes of penal law are rarely excused.

In this Article, Professor Armacost uses fair notice in criminal law as a paradigm for analyzing the role of notice in constitutional damages actions. She argues that …

Cyberlaundering: The Risks, The Responses, Sarah N. Welling, Andy G. Rickman

Law Faculty Scholarly Articles

This Article discusses the potential use of electronic cash for money laundering and possible government responses to the problem. Parts I and II provide an overview of electronic cash. Part III explores the effects that electronic cash can have on money laundering. Part IV explains through a series of hypotheticals how "cyberlaundering" can occur. Part V analyzes the federal government's response to the threat of money laundering with electronic cash. Part VI concludes the Article with suggestions.

Silencing Nullification Advocacy Inside The Jury Room And Outside The Courtroom, Nancy J. King

Vanderbilt Law School Faculty Publications

Jurors in criminal cases occasionally "nullify" the law by acquitting defendants who they believe are guilty according to the instructions given to them in court. American juries have exercised this unreviewable nullification power to acquit defendants who face sentences that jurors view as too harsh, who have been subjected to what jurors consider to be unconscionable governmental action, who have engaged in conduct that jurors do not believe is culpable, or who have harmed victims whom jurors consider unworthy of protection. Recent reports suggest jurors today are balking in trials in which a conviction could trigger a "three strikes" or …

Is Miranda Dead, Was It Overruled, Or Is It Irrelevant, Alfredo Garcia

St. Thomas Law Review

This Article will proceed in three stages. Part I will provide the historical, social, and political backdrop to the Miranda opinion. It will discuss the pragmatic basis for the path that the Court chose to follow in Miranda. Part II will underscore the attempts to overrule Miranda and the Court's almost instant departure from its doctrinal foundation. In doing so, the argument is that the Court's retreat can be viewed in large measure as a reaction to the negative response the opinion engendered, both politically and socially. It also can be viewed as the logical outcome of the Court's need …

Publicity In High Profile Criminal Cases, H. Patrick Furman

St. Thomas Law Review

Many may wonder about the wisdom of having a criminal lawyer discuss the ethical problems associated with high profile cases. Over the past few years, the performances of criminal lawyers on the public stage have been decidedly uneven with respect to professionalism and ethical behavior. We witnessed the spectacle of People v. Simpson. There, it seemed that the lawyers spent more time in front of the camera than in front of the bench. Ironically, after the trial, half of the lawyers got their own television shows. The Simpson trial was an event which deserved to be labeled a trial only …

Representation Of Subpoenaed Witnesses, Jack M. Denaro

St. Thomas Law Review

Recently, the front pages of the New York Times and the Washington Post have made witnesses before the grand jury a special topic for morning coffee. Issues of foul tactics, parental immunity, grand jury voyeurism, and the Fifth Amendment have reigned in the tabloids and on television.Today, in law, the representation of subpoenaed witnesses has become a subject as vast as that of contracts and as complicated as common law property.

"Leaks" In Federal Grand Jury Proceedings, Roma W. Theus Ii

St. Thomas Law Review

The subject of federal grand jury "leaks" came to the forefront most recently because of the continuous leaks regarding the Special Prosecutor's investigation of President Clinton and Monica Lewinsky. Anyone with a pulse realizes that there has been a flood of grand jury "leaks" about this matter. But, the repeated "leaks" in that matter have highlighted three things, two of which are negative and one that is positive. The positive feature is that there does not appear to be a significant problem with "leaks" of grand jury information in the "garden variety" or "routine case." The negative features are that: …

Mail Fraud: Redefining The Boundaries, Ellen S. Podgor

St. Thomas Law Review

This Article examines some of the recent judicial decisions that limit the conduct subject to prosecution under the mail fraud statute. It focuses on decisions regarding three key aspects of 18 U.S.C. § 1341, namely, the scheme to defraud, intent, and mailings in furtherance. Although these three aspects are discussed separately in this Article, the scheme to defraud and intent are often intertwined. This Article is limited to recent judicial decisions that have restricted the prosecution's use of the mail fraud statute. These recent cases serve to redefine the parameters of the statute. Due to the breadth of the statute, …

Another Three Strikes Law: An In Depth Look At Florida's Prisoner Releasee Reoffender Punishment Act, Desiree M. Cuason

St. Thomas Law Review

Part I of this Comment will provide a brief historical background of Florida's sentencing guidelines and present an in-depth analysis contrasting various "Three Strikes You're Out" laws throughout the nation and the Florida Act. Part II will discuss certain conflicts which may result from the passage of the Act. Part III will discuss future impact on issues such as increased workload, prison overcrowding, and the shifting of discretionary power from the judiciary to the prosecutor. Finally, Part IV will propose alternatives to further the goals of prevention and incapacitation.

United States V. Scheffer: What Is Left Of The Polygraph In Criminal Trials, Timothy M. Hughes

St. Thomas Law Review

Will courts uphold aper se rule against polygraph admissibility in all contexts despite the constraints imposed by a criminal defendant's Sixth Amendment right to present a defense? For the first time, the Supreme Court of the United States has addressed whether a per se ban on polygraph evidence violates a defendant's Sixth Amendment right to present a defense. It appears that invoking the Sixth Amendment right to present a defense produces the strongest argument in favor of polygraph admittance. Therefore, since United States v. Scheffer involves a court-martial and arises under the Military Rules of Evidence, the Supreme Court's decision …

Criminal Law And Criminology: Survey Of Recent Books, Juliet Casper Smith

Articles by Maurer Faculty

No abstract provided.

State V. Lovejoy: Hung Juries And Retrial Vs. Double Jeopardy And Collateral Estoppel, Nicole M. Ellis

Cleveland State Law Review

This article argues that the Supreme Court of Ohio's decision in Lovejoy helps to preserve the purpose of our criminal laws, which is to protect society. The article starts by recapping the events leading up to trial, then it breaks down the court decisions on appeal. The analysis of these decisions arrives at the conclusion that allowing a defendant to be retried on charges in which the accused was not previously acquitted, but rather the jury was hung or there was a mistrial, does not frustrate justice but instead greatly increases the opportunities for justice. In addition, the accused is …

Where We Have Been, And Where We Might Be Going: Some Cautionary Reflections On Rape Law Reform, The Sixty-Eighth Cleveland-Marshall Fund Lecture , Joshua Dressler

Cleveland State Law Review

We should always be looking to see where we are, how we got there, and where we appear to be going. My purpose in this article has been to ask those questions in the context of rape law. In evaluating rape reform, I have tried to be fair-minded and balanced in my observations. I have suggested areas in which the law should go further to protect against sexual misconduct, but I have also expressed my belief that rape law reform threatens to move in undesirable directions. In particular, I have argued that there is a risk that courts will follow …

Commentary - Co-Opting Compassion: The Federal Victim's Rights Amendment, Lynne Henderson

St. Thomas Law Review

This Commentary will explore some of the jurisprudential and practical issues by examining the nature of victims' rights and victimization. After a brief introduction to the history of victim's rights amendments in the United States, this Commentary will explore the images in the rhetoric that lead to unreflective support for victims' rights, then turn to images of justice and arguments for a particular kind of victims' rights, together with a critique of that vision. Finally, this Commentary suggests some alternative approaches and programs that promise to be more helpful to victims of crime than any constitutional amendment would be.

Practicing Criminal Law: A Jewish Law Analysis Of Being A Prosecutor Or Defense Attorney, Michael J. Broyde

Faculty Articles

Our secular society cycles as to whether it glorifies defense attor­neys or prosecutors. Sometimes, we adore defense attorneys­ -- they are the lawyers who ensure that innocents are not punished, "L.A. Law" is the show to watch, and the attorneys to imitate. Other times, we revere prosecutors -- they are the lawyers who punish evil­doers, "Law and Order" is the show to watch, and the attorneys to imitate. Jewish tradition recognizes the inherent ethical difficulties with the conduct of both types of attorneys.

Jewish law recognizes that the societal imposition of the criminal justice system on citizens, who otherwise function …

La Preuve Pénale Et Des Tests Génétiques: United States Report, Christopher L. Blakesley

Scholarly Works

A major problem for those analyzing U.S. criminal law and procedure is that it does not fit the Continental or British mold. There is no one single system, but parallel federal and 50 state systems each with its own legislature, laws, courts (including trial, appellate, and supreme courts), police, prosecutors and prisons. The authorities who enact and implement these laws are sovereign within their respective jurisdictions. Each state has police power over its people. The 10th amendment to the U.S. Constitution controls allocation of federal and state authority. It provides that whatever the Constitution has not designated as being within …

Criminal Law: Diagram Of A Drug Sentence--Defining Mixture Or Substance On The Basis Of Utility In United States V. Richards, Matthew Thomas Geiger

Oklahoma Law Review

No abstract provided.

Criminal Law: Oklahoma's New Standard Of Proof In Competency Proceedings: Due Process, State Interests, And A Murderer Named Cooper--Cooper V. Oklahoma, Seth Branham

Oklahoma Law Review

No abstract provided.

The Irony Of Harmless Error, Charles S. Chapel

Oklahoma Law Review

No abstract provided.

Wielding The Double-Edge Sword: Charles Hamilton Houston And Judicial Activism In The Age Of Legal Realism, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

A new progressive movement in the law profoundly affected the American judicial climate of the 1930s and 1940s. The jurisprudence of American Legal Realism, which sprang from the progressive American sociological jurisprudence, boasted the adherence of some of America's most influential legal minds. Legal Realism, which complemented the New Deal reform legislation emerging in the 1930s, advocated judicial deference to legislative and administrative channels on matters of social and economic policy. Judicial activism, which had been used as a tool for the protection of economic rights since the late nineteenth century, was seen as inimical to progressive social reform and, …

Federal Criminal Conspiracy, Todd R. Russell, O. Carter Snead

Journal Articles

Under 18 U.S.C. § 371, it is a crime for "two or more persons [to] conspire . . . to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose."

This Article first outlines, in Section I, the basic elements of a conspiracy offense under § 371. Defenses available to challenge charges brought under the statute are discussed in Section III of the Article. Section IV presents the evidentiary and constitutional guidelines governing admissibility of co-conspirator hearsay testimony at trials involving conspiracy charges. Section V surveys …

The Newly Found "Compassion" For Sexually Violent Predators: Civil Commitment And The Right To Treatment In The Wake Of Kansas V. Hendricks, Elizabeth Weeks

Scholarly Works

In light of heart-wrenching stories of sexual abuse and public demands for safety, the Kansas v. Hendricks case presented the Supreme Court with compelling facts on which to uphold the Kansas commitment strategy. After all, the statute prevented the release of a man whose history of sex crimes, incarceration, and institutionalization spanned nearly two decades, and who admitted he still had sexual desires for children but could not control his urges. Faced with that evidence, the Court would have been hard-pressed to strike down the Kansas statute by finding that such a predator received inadequate treatment for his disorder, or …

Towards A Model Penal Code, Second (Federal?): The Challenge Of The Special Part, Gerard E. Lynch

Faculty Scholarship

The Model Penal Code is among the most successful academic law reform projects ever attempted. In the first two decades after its completion in 1962, more than two-thirds of the states undertook to enact new codifications of their criminal law, and virtually all of those used the Model Penal Code as a starting point. The Model Penal Code was influential in a variety of different ways. First, the very notion of a systematic codification of criminal law received a dramatic boost from the Model Penal Code. Apart from the degree to which any particular state recodification resembled the Model Penal …

Retribution Revisited: A Reconsideration Of Feminist Criminal Law Reform Strategies, Dianne L. Martin

Osgoode Hall Law Journal

Were the last 30 years of feminist law reform activity around criminal justice misdirected? Or, if not misdirected, have the efforts been appropriated and manipulated by the New Right? This commentary reflects on this history, and on the failures of the retributive justice project generally, and argues for a reexamination of both. The discussion focuses on the tactics of the New Right and on the retributive goals of some victims' rights organizations as a means of highlighting the unintended consequences of key feminist initiatives around violence against women. Finally, the commentary identifies alternatives to retribution and a need for careful …

Pain Relief For The Dying: The Unwelcome Intervention Of The Criminal Law, Phebe Saunders Haugen

Faculty Scholarship

This Article addresses physician-assisted suicide and the medical treatment of pain and suffering. Part II discusses various medical misconceptions about the treatment of pain and how modern medicine fails to fulfill this aspect of its palliative care role. Part III reviews how the law currently circumscribes the patient and doctor's ability to make medical decisions when the patient is terminally ill. As will be shown, the law is clearer and more respectful of good medical practice than most medical practitioners currently believe. Moreover, this section will also establish that, while several competing philosophical positions surrounding physician-assisted suicide exist, these same …

Miscarriages Of Justice: Their Causes And Curses, Steven Wisotsky

St. Thomas Law Review

Judge Hand was wrong. There is now abundant evidence that innocent men have been convicted and imprisoned. Probably a few innocents have been executed. This article explores what is largely uncharted territory: the law pertaining to correcting miscarriages of justice. The twin premises are that significant numbers of innocent prisoners are wrongly convicted each year, and that present legal remedies are inadequate to correct these miscarriages of justice. How many miscarriages of justice have there been historically, and how common are they today? Because guilt or innocence is a judgment and not a purely objective fact, it is impossible to …

The Use Of Social Science And Medicine In Sex Offender Commitment, Eric S. Janus

Faculty Scholarship

Sex offender commitment statutes are a controversial and recurring response to the threat of sexual violence. These statutes, claiming exemption from the strict constitutional limitations of the criminal law, use civil-commitment-like procedures to detain sex offenders in secure "treatment centers." Litigation testing these statutes has sought to locate the border between legitimate exercise of the state's mental health power, and illegitimate preventative detention. This article examines the central roles that medicine and behavioral science play in the operation of sex offender commitment statutes and the litigation testing their constitutional validity. The thesis of this article is that the presence of …

Crime Control And Harassment Of The Innocent, Raymond Dacey, Kenneth S. Gallant

Law Faculty Scholarship

Crime control through law enforcement is generally considered to be a two-part process of appre­hending and incapacitating or rehabilitating the guilty, and deterring the innocent from crime by the threat of punishment. The analysis presented here shows that the protection of the innocent from harass­ment-detention, arrest, punishment, and other intrusions by the criminal justice system-is important in deterring crime. Specifically, the analysis shows that deterrence from crime is weakened and then lost for a rational individual who holds the majority attitude toward risk, if the levels of rightful punishment and wrongful harassment are increased, as in a war on crime, …

Criminal Law And Criminology: Survey Of Recent Books, Juliet Casper Smith

Articles by Maurer Faculty

No abstract provided.