Criminal Law Commons^™

Teaching 'The Wire': Fiction As Pedagogical Tool, Roger Fairfax

Presentations

No abstract provided.

Searching For Solutions To The Indigent Defense Crisis In The Broader Criminal Justice Reform Agenda, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

As we mark the fiftieth anniversary of the Gideon v. Wainwright decision, the nearly universal assessment is that our indigent defense system remains too under-resourced and overwhelmed to fulfill the promise of the landmark decision, and needs to be reformed. At the same time, fiscal necessity and moral outrage have prompted a historic reexamination of outdated policies that have led to an overreliance on incarceration and inefficiencies in the administration of criminal justice. This Essay argues that there are synergies between the indigent defense reform agenda and the broader criminal justice reform agenda, which places a premium on cost-effective, evidence-based, …

Time-Bars: Rico-Criminal And Civil Federal And State, G. Robert Blakey

Notre Dame Law Review

The article discusses the role of the Racketeer Influenced and Corrupt Organizations Act (RICO) in criminal proceedings. The Act considers several provisions including illegal services of drugs and gambling, corruption in labor or management relations, and commercial fraud such as bankruptcy and securities fraud. The Act applies criminal and civil sanctions including fines and imprisonment, forfeiture, and treble damage relief for persons who injured in business due to violation of law.

An Analysis Of The Death Penalty Jurisprudence Of The October 2007 Supreme Court Term, Richard Klein

Touro Law Review

No abstract provided.

Criminal Procedure Decisions From The October 2007 Term, Susan N. Herman

Touro Law Review

No abstract provided.

Mens Rea In Minnesota And The Model Penal Code, Ted Sampsell-Jones

Symposium: 50th Anniversary of the Minnesota Criminal Code-Looking Back and Looking Forward

When Minnesota engaged in the great reform and recodification effort that led to the Criminal Code of 1963, it was part of a nationwide reform movement. That movement was spurred in large part by the American Law Institute and its Model Penal Code. The Minnesota drafters were influenced by the MPC, and at least in some areas, adopted MPC recommendations.

The MPC’s most significant innovation was in the law of mens rea—the body of law concerning the mental state or “guilty mind” necessary for criminal liability. The MPC drafters recognized that the common law of mens rea was fundamentally incoherent …

Re-Thinking Minnesota's Criminal Justice Response To Sexual Violence Using A Prevention Lens, Caroline Palmer, Bradley Prowant

Symposium: 50th Anniversary of the Minnesota Criminal Code-Looking Back and Looking Forward

Sexual violence is one of the most difficult issues we face in the human condition. Even with the many strides that have occurred in recent years to support a victim-centered response, survivors who seek help from the legal, medical and mental health systems, among others still “may face disbelief, blame, and refusals of help instead of assistance.” It is a problem that demands a response from all levels of society. And yet this response is lacking.

The key question we as a society confront is what changes will satisfactorily balance justice for victims with offender accountability, attempts at rehabilitation through …

Escape From The Twilight Zone: Minnesota’S Definitions Of “Substantial Bodily Harm” And “Great Bodily Harm” Leave Too Much Room For Injustice, And They Can Be Improved, Joshua Larson

Symposium: 50th Anniversary of the Minnesota Criminal Code-Looking Back and Looking Forward

The article first will discuss the current assault-statute regime in Minnesota and its origin and development. Then, the article will identify appellate decisions that have examined the concepts of bodily harm, substantial bodily harm, and great bodily harm. Following this, the article will describe the Wisconsin assault-statute regime. Lastly, the article will propose how Minnesota should improve.

Regression To The Mean: How Miranda Has Become A Tragicomical Farce, Alfredo Garcia

St. Thomas Law Review

In my original article, I examined Miranda's historical and social background, discussed its precursors, traced the evolution of the case, and documented the dismantling of the Miranda doctrine. I also argued that the doctrine's "seductive appeal" lulled defense counsel into a false sense of security, thereby deflecting reliance on the "voluntariness" standard as a failsafe to Miranda. Further, I maintained that a waiver of Miranda in some instances served to sanitize an otherwise involuntary confession. Finally, I proposed to "do away" with Miranda, to return to the voluntariness standard with one caveat: that the government be precluded from relying on …

"Children Are Different": Constitutional Values And Justice Policy, Elizabeth S. Scott

Faculty Scholarship

This essay explores the importance for Eighth Amendment jurisprudence and for juvenile crime regulation of Miller v. Alabama (2012) and two earlier Supreme Court opinions rejecting harsh sentences for juveniles. It argues that the Court has broken new ground in defining juveniles as a category of offenders who are subject to special Eighth Amendment protections. In Miller and in Graham v. Florida (2010) particularly, the Court has applied to juveniles' non-capital sentences the rigorous proportionality review that, for adults, has been reserved for death sentences. The essay then turns to the implications of the opinions for juvenile crime policy, arguing …

Online Mental Disability Law Education, A Disability Rights Tribunal, And The Creation Of An Asian Disability Law Database: Their Impact On Research, Training And Teaching Of Law, Criminology Criminal Justice In Asia, Michael L. Perlin, Heather Ellis Cucolo, Yoshikazu Ikehara

Articles & Chapters

Two professors at New York Law School (NYLS) and the director of the Tokyo Advocacy Law Office are engaged in initiatives with the potential to have major influences on the study of law, criminology, and criminal justice: the creation of a Disability Rights Tribunal for Asia and the Pacific (DRTAP), and expansion of NYLS’s online mental disability law program (OMDLP) to include numerous Asian venues.

DRTAP seeks to create a sub-regional body (a Commission and eventually a Court) to hear violations of the UN’s Convention on the Rights of Persons with Disabilities. This will explicitly inspire scholarship about issues such …

Due Process In Islamic Criminal Law, Sadiq Reza

Faculty Scholarship

Rules and principles of due process in criminal law--how to, and how not to, investigate crime and criminal suspects, prosecute the accused, adjudicate criminal cases, and punish the convicted--appear in the traditional sources of Islamic law: the Quran, the Sunna, and classical jurisprudence. But few of these rules and principles are followed in the modern-day practice of Islamic criminal law. Rather, states that claim to practice Islamic criminal law today mostly follow laws and practices of criminal procedure that were adopted from European nations in the twentieth century, without reference to the constraints and protections of Islamic law itself. To …

The Fugitive Dismissal Rule: Ortega-Rodriguez Takes The Bite Out Of Flight, Anthony Michael Altman

Pepperdine Law Review

No abstract provided.

The "Smart On Crime" Prosecutor, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

"Smart on Crime" criminal justice reforms have emerged in recent years as shrinking government budgets and exploding incarceration rates have prompted scrutiny of the efficiency and efficacy of existing criminal justice approaches. Policymakers across the country have sought out new strategies designed to prevent crime and recidivism, enhance community safety, reduce our reliance on incarceration, and save taxpayer dollars. As a result, law enforcement, courts, and correctional agencies have been implementing innovative approaches in areas such as diversion, problem-solving courts, alternatives to incarceration, and ex-offender re-entry. However, the role of prosecutors and prosecutorial agencies in this story is often overlooked. …

Challenges And Choices In Criminal Law Course Design Commentary Symposium: Criminal Law Pedagogy, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

I thoroughly enjoy every course in my teaching package, but the first-year Criminal Law course occupies a special place in my heart. The subject matter in the Criminal Law course is perhaps the most compelling of any offered in the first-year curriculum. As such, it provides Criminal Law instructors the tremendous opportunity to capture the imagination of students and to highlight the nexus between law in books and law in action.

What Use Are Legal Academics?, Roger Fairfax

Presentations

No abstract provided.

Batson's Grand Jury Dna, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

Batson v. Kentucky was a landmark decision imposing constitutional restrictions on peremptory challenges in the petit jury selection process. Batson was a culmination of a long line of cases addressing racial discrimination in jury selection. However, the role of anti-discrimination doctrine in grand jury selection is often overlooked when the story of Batson is considered. Many of the key equal protection cases underpinning the Batson decision were grand jury cases. Furthermore, the evidentiary framework applied to challenges to race-based peremptory strikes in Batson was forged in a century's worth of grand jury discrimination doctrine. This Essay, prepared for the "Batson …

High Expectations And Some Wounded Hopes: The Policy And Politics Of A Uniform Statute On Videotaping Custodial Interrogations, Andrew E. Taslitz

Northwestern Journal of Law & Social Policy

Much has been written about the need to videotape the entire process of police interrogation of suspects. Videotaping discourages abusive interrogation techniques, improves police training in proper techniques, reduces frivolous suppression motions, and improves jury decision making about the voluntariness and accuracy of a confession. Despite these benefits, only a small number of states have adopted legislation mandating electronic recording of the entire interrogation process. In the hope of accelerating legislative adoption of this procedure and of improving the quality of such legislation, the Uniform Law Commission (ULC) ratified a uniform recording statute for consideration by the states. I was …

Shame By Any Other Name: Lessons For Restorative Justice From The Principles, Traditions And Practices Of Alcoholics Anonymous , Victoria Pynchon

Pepperdine Dispute Resolution Law Journal

Because the painful experience of shame is believed to deter anti-social and criminal conduct, it has long been a staple of our criminal justice system. Its purpose has been to accomplish moral education about the wrongfulness of the crime and to prevent its occurrence through social and self-disapproval. In criminal ADR or "restorative justice" circles, the beneficial effects of "reintegrative" shame are meant to be accomplished by a "restorative justice conference" or "victim-offender mediation" ("VOMS"). These VOMs bring together victims and their loved ones; offenders and their friends and family; and, caring members of the community for the purpose of …

Miranda’S Hidden Right, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

When the Court in Miranda v. Arizona applied the Fifth Amendment “right to remain silent” to the stationhouse, it also created an inherent contradiction that has bedeviled Miranda cases since. That is, the Court in Miranda said that a suspect can waive her right to remain silent but also that she must invoke it. Numerous courts have repeated this incantation, including most recently last summer in Berghuis v. Thompkins. But how can both be true about the same right? Either the suspect has the right and can waive it or does not yet enjoy it and must therefore invoke it. …

Democracy And Criminal Discovery Reform After Connick And Garcetti, Janet Moore

Faculty Articles and Other Publications

A leading cause of wrongful conviction and wasteful litigation in criminal cases is the nondisclosure of information beneficial to the defense by prosecutors and law enforcement as required by Brady v. Maryland. In Connick v. Thompson and Garcetti v. Ceballos, the Supreme Court weakened Brady’s enforceability by limiting the deterrent force of 42 U.S.C § 1983 liability. Connick highlights Garcetti’s implications as a criminal discovery case, which scholars have not fully analyzed. While Connick restricted § 1983 liability when prosecutors confess to suppressing exculpatory evidence, Garcetti restricted liability when prosecutors are disciplined for bringing Brady evidence to light. …

Protecting Tax Payers And Crime Victims: The Case For Restricting Utah's Preliminary Hearings To Felony Offenses, Paul G. Cassell, Thomas E. Goodwin

Utah OnLaw: The Utah Law Review Online Supplement

Requiring preliminary hearings for Class A misdemeanors is undesirable for two simple reasons. First, the court’s decision will result in hundreds of additional preliminary hearings a year, thus imposing substantial costs on taxpayers and burdens on an already overwhelmed criminal justice system. Second, the decision will create substantial hardships for crime victims, who will now be twice subjected to cross-examination by defense attorneys—once at the preliminary hearing and again later at trial. And these costs will generate no significant benefit in return.

Overcriminalization For Lack Of Better Options: A Celebration Of Bill Stuntz, Daniel C. Richman

Faculty Scholarship

The unity of Bill Stuntz's character – his profound integrity – makes it easy to move from a celebration of his friendship (which I’ve treasured since we first met back in 1985) to one of his scholarship, for creativity, wisdom, and humility are strengths not just of Bill himself but of his work. Even as his broad brush strokes have fundamentally advanced our understanding of the interplay between substantive criminal law, criminal procedure, and criminal justice institutions over time, Bill's work – like Bill himself – welcomes and endures sustained engagement. Humility is appropriate for me, too, as I offer …

Finding The Original Meaning Of American Criminal Procedure Rights: Lessons From Reasonable Doubt's Development, Randolph N. Jonakait

Articles & Chapters

Lessons can be learned about finding the original meaning of American criminal procedure rights by an examination of the development of the reasonable doubt standard. This is for a number of reasons. First, the status of the reasonable doubt standard seems secure. No debate questions the constitutional requirement that an accused can only be convicted if the crime is proven beyond a reasonable doubt. The standard’s original meaning can be explored uncolored by the partisanship often engendered when present seekers of original meaning hope to define a new contour to a constitutional guarantee. Furthermore, serious scholars have studied the reasonable …

The Invalidity Of A Plea Of Guilty To A Criminal Offense Made By Video Teleconferencing When The Defendant Is Not Present In Open Court, William R. Simpson Jr., Clint Miller, David Sudduth

University of Arkansas at Little Rock Law Review

A guilty plea by a defendant is more than an admission of conduct; it is the nail in the coffin that closes the case and results in conviction. Despite the critical importance of this moment, Arkansas district and circuit courts are more commonly taking guilty pleas from defendants by video teleconferencing (VTC) instead of requiring defendants to be physically present in the courtroom. This essay sets forth three separate arguments in support of the notion that a guilty plea to a criminal offense by VTC without the defendant being present in open court is invalid as a matter of Arkansas …

Retrying The Acquitted In England Part Iii: Prosecution Appeals Against Judges' Rulings Of "No Case To Answer", David S. Rudstein

San Diego International Law Journal

The Order in Council permitting the prosecution appeal of "Mo" Courtney's acquittal and allowing him to be retried for the same offense of which he had previously been acquitted stems from the Criminal Justice Act 2003. That Act, which applies in England and Wales, grants the government the right to appeal certain rulings by the trial judge in criminal prosecutions on an indictment, including a ruling that there is no case to answer, i.e., a directed verdict of acquittal, and if the appeal is successful, allows the reviewing court to order that the acquitted defendant?s trial be resumed or that …

Overcriminalization: Is There A Problem To Solve?, Roger Fairfax

Presentations

No abstract provided.

"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain

All Faculty Scholarship

A three-year-old child, while being bathed by her babysitter, innocently mentions that her “pee-pee” hurts. When the babysitter asks the child how she hurt it, she says, “Uncle Ernie (her mother’s boyfriend) told me not to tell.” A subsequent medical examination reveals that the child has gonorrhea, a sexually transmitted disease.

By the time of trial, the child is four and-a-half-years old. When questioned by the trial judge, she cannot explain to the judge’s satisfaction, “the difference between the truth and a lie.” Moreover, she has no long term memory of the incident. The judge rules the child incompetent to …

Hearsay After Crawford: A Practitioner's Guide, Marcia G. Cooke

St. Thomas Law Review

The Sixth Amendment to the U.S. Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." Although it may appear simple, concise and direct, the language of the Sixth Amendment has been the subject of much discussion.' The Confrontation Clause has been inevitably comingled with the hearsay rules, and determining when an out-of-court statement violates the rights of criminal defendants has been no easy task. For many years, it was uncontested, as established in Ohio v. Roberts, that to avoid violating a criminal defendant's Sixth Amendment rights, the …

Fear Itself: The Impact Of Allegations Of Gang Affiliation On Pre-Trial Detention, K. B. Howell

St. Thomas Law Review

This article addresses the impact of alleged gang membership at the initial detention/bail determination for three reasons. First, the right to non-excessive bail is guaranteed by the Eighth Amendment. Second, although the impact of trial testimony about gangs presents a number of issues meriting exploration, the vast majority of criminal cases are either dismissed or resolved by plea. This is particularly so when charges are less serious. When misdemeanors or low-level felonies are charged, the incarceration of the defendant on excessive pre-trial bail will alter negotiation dynamics such that a defendant is likely to plead guilty in order to obtain …