Criminal Law Commons^™

Can California Save Its Death Sentences? Will Californians Save The Expense?, Scott W. Howe

Cardozo Law Review

No abstract provided.

Moral Judgments & International Crimes: The Disutility Of Desert, Andrew K. Woods

Law Faculty Scholarly Articles

The international criminal regime exhibits many retributive features, but scholars and practitioners rarely defend the regime in purely retributive terms—that is, by reference to the inherent value of punishing the guilty. Instead, they defend it on the consequentialist grounds that it produces the best policy outcomes, such as deterrence, conflict resolution, and reconciliation. These scholars and practitioners implicitly adopt a behavioral theory known as the "utility of desert," a theory about the usefulness of appealing to people's retributive intuitions. That theory has been critically examined in domestic criminal scholarship but practically ignored in international criminal law.

This Article fills this …

Fred Zain, The Csi Effect, And A Philosophical Idea Of Justice: Using West Virginia As A Model For Change, Kathleen Keough Griebel

West Virginia Law Review

No abstract provided.

Un-Convicting The Innocent: The Case For Shaken Baby Syndrome Review Panels, Rachel Burg

University of Michigan Journal of Law Reform

This Note proposes that states should develop error-correction bodies to identify past errors that have resulted in wrongful convictions of people accused of shaking a child. These institutions, which I call SBS Review Panels, would be similar to the error-correction bodies and commissions that have recently been established throughout the world to deal with various sorts of wrongful convictions. An SBS-specific commission should be developed because of the high level of scientific expertise that is required to fully understand this diagnosis and the problems associated with using the triad of medical findings as evidence of the defendant's conduct. Part I …

Reforming The Right To Legal Counsel In Singapore, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

This is an opinion prepared for the Criminal Law Committee of the Law Society of Singapore on an arrested person’s right to legal counsel in Singapore. Specifically, it deals with the following: (1) it summarizes pertinent aspects of the law relating to the right to legal counsel in Singapore; (2) it surveys a number of ASEAN and Commonwealth jurisdictions to determine how long after apprehension the right to counsel is generally accorded to arrested persons, and compares the legal position in these jurisdictions to the situation in Singapore; and (3) it examines two rights ancillary to the right to legal …

Non-Capital Habeas Cases After Appellate Review: An Empirical Analysis, Nancy J. King

Vanderbilt Law School Faculty Publications

In 2007, researchers from the National Center for State Courts and Vanderbilt University Law School reported the findings from a study of litigation in 2384 randomly selected, non-capital habeas cases, approximately 6.5% of the non-capital habeas cases commenced in federal district courts in 2003 and 2004 by state prisoners. In this article, I update that report, including the cases that were pending when the 2007 report was prepared, and following the study cases into the federal courts of appeals, and back into the state courts. Even after appellate review of denials and dismissals, the percentage of non-capital petitioners receiving federal …

Teaching Social Justice Lawyering: Systematically Including Community Legal Education In Law School Clinics, Margaret Martin Barry, A. Rachel Camp, Margaret E. Johnson, Catherine F. Klein, Lisa V. Martin

All Faculty Scholarship

There is a body of literature on clinical legal theory that urges a focus in clinics beyond the single client to an explicit teaching of social justice lawyering. This Article adds to this emerging body of work by discussing the valuable role community legal education plays as a vehicle for teaching skills and values essential to single client representation and social justice lawyering. The Article examines the theoretical underpinnings of clinical legal education, community organizing and community education and how they influenced the authors’ design and implementation of community legal education within their clinics. It then discusses two projects designed …

Madness Alone Punishes The Madman: The Search For Moral Dignity In The Court's Competency Doctrine As Applied In Capital Cases, J. Amy Dillard

All Faculty Scholarship

The purposes of the competency doctrine are to guarantee reliability in criminal prosecutions, to ensure that only those defendants who can appreciate punishment are subject to it, and to maintain moral dignity, both actual and apparent, in criminal proceedings. No matter his crime, the “madman” should not be forced to stand trial. Historically, courts viewed questions of competency as a binary choice, finding the defendant either competent or incompetent to stand trial. However, in Edwards v. Indiana, the Supreme Court conceded that it views competency on a spectrum and offered a new category of competency — borderline-competent. The Court held …

Ignorance And Mistake Of Criminal Law, Noncriminal Law, And Fact, Kenneth Simons

Faculty Scholarship

After clarifying the distinction between mistakes of fact and mistakes of law, this article explores in detail an important distinction within the category of mistake of law, between mistake about the criminal law itself and mistake about noncriminal law norms that the criminal law makes relevant - for example, about the civil law of property (in a theft prosecution) or of divorce (in a bigamy prosecution). The Model Penal Code seems to endorse the view that mistakes about noncriminal law norms should presumptively be treated as exculpatory in the same way as analogous mistakes about facts. Case law on the …

Summary Of Maestas V. State, 128 Nev. Adv. Op. No. 12, Richard A. Andrews

Nevada Supreme Court Summaries

The Court considered consolidated appeals from a first-degree murder conviction and an order denying a motion for new trial in a death penalty case.

Ewing V. California: Upholding California's Three Strikes Law, Robert Clinton Peck

Pepperdine Law Review

No abstract provided.

How 'Duty To Retreat' Became 'Stand Your Ground', Jeffrey Bellin

Popular Media

No abstract provided.

Georgia's New Evidence Code - An Overview, Paul S. Milich

Georgia State University Law Review

On May 3, 2011, Governor Nathan Deal signed into law House Bill 24 (HB 24) bringing a new set of evidence rules to the State of Georgia.

The new rules went into effect on January 1, 2013. The author of this article was the Reporter for the State Bar Evidence Study Committee when new rules were first proposed back in the mid-1980s, and again throughout the recent, successful effort to reform the rules.

Part I of this article will give a brief history of the twenty-six-year effort to bring new evidence rules to Georgia. Part II will provide a structural …

Cutting The Cord: Ho'oponopono And Hawaiian Restorative Justice In The Criminal Law Context , Andrew J. Hosmanek

Pepperdine Dispute Resolution Law Journal

Ho'oponopono is a traditional Hawaiian dispute resolution system that has recently experienced a resurgence of interest. The word ho'oponopono literally means to make right. In this system, both the offender and victim participate in a type of guided mediation along with other stakeholders in the offense. Ho'oponopono is different from typical mediations because after the session is successfully completed, the participants figuratively cut the cord of legal and psychological entanglement which binds them - in other words, the dispute is put to rest forever. When victim and offender come to a true resolution of the problem, and jointly make the …

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 …

The Gacaca Experiment: Rwanda's Restorative Dispute Resolution Response To The 1994 Genocide, Jessica Raper

Pepperdine Dispute Resolution Law Journal

Since its rise to power in July of 1994, the Rwandan government has been committed to prosecuting all those accused of genocide. To prosecute the approximately 130,000 defendants, Rwanda has adopted a program called gacaca, based on Rwanda's traditional customary dispute resolution system. The gacaca law provides a reconciliation component that allows defendants to trade confessions of past genocide crimes for indemnification, as well as a prosecution component that holds the most serious offenders accountable in a Western style prosecution in a formal court of law. One of the main goals of gacaca is to end the so-called "culture …

Meet Me On Death Row: Post-Sentence Victim-Offender Mediation In Capital Cases, Rachel Alexandra Rossi

Pepperdine Dispute Resolution Law Journal

Since the 1970's, victim-offender mediation (VOM) has increased in use, most commonly with minor offenses. More recently, VOM has been sparingly applied to serious and violent crimes, including "rape, vehicular homicide, attempted homicide, and murder." Death penalty cases have rarely been the focus of restorative justice or VOM, likely because the victim has died and the offender will soon be executed, and these two parties are traditionally the focus of restorative justice. However, while capital cases involve unique concerns and issues, VOM can still be applied in these cases. The process would only require some modification of the focus and …

Funding The Fight Against Domestic Violence, Carol W. Hunstein, Joan Prittie, Sherry Boston, Michelle Carney

Working in the Public Interest Conferences

Last October, the City Council in Topeka, Kansas, adopted a radical approach to managing the cots of prosecuting domestic violence— the city repealed its domestic violence law. The move was political brinksmanship, intended to force the county to pick up the tab for prosecutions, but it nonetheless sent a significant message about state and local funding priorities.

Across the nation, declining returns on escrow accounts funding legal services, government funding cutbacks, and reduced giving has left more people at risk of serious harm and death from domestic violence. Panelists will discuss the effects of austerity on prosecutions, preventative services, and …

The T-Rex Without Teeth: Evolving Strickland V. Washington And The Test For Ineffective Assistance Of Counsel, Robert R. Rigg

Pepperdine Law Review

In Strickland v. Washington the United States Supreme Court formulated the test for determining whether counsel in a criminal case is ineffective. When the Court decided Strickland it created a doctrine of enormous proportions, but with little impact--a legal tyrannosaurus rex without teeth. In the last decade, by using American Bar Association (“ABA”) standards to evaluate counsel's performance, the Court has given the T-Rex some sizable incisors. The purposes of this article are to: (1) determine how frequently the United States Supreme Court uses ABA standards in its decisions and describe briefly for what purposes the Court uses those standards; …

Unintentional Punishment, Adam J. Kolber

Faculty Scholarship

No abstract provided.

Driving Dangerously: Vehicle Flight And The Armed Career Criminal Act After Sykes V. United States, Isham M. Reavis

Washington Law Review

The Armed Career Criminal Act (ACCA), a federal “three-strikes” recidivist statute, applies a mandatory enhancement to sentences of criminal defendants previously convicted of three qualifying predicate crimes. In Sykes v. United States the U.S. Supreme Court held that a conviction for fleeing police by car counted as a predicate under ACCA’s residual provision for crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another.” ACCA’s residual provision has produced a confusing series of U.S. Supreme Court decisions, each applying a different method for determining its scope. Though Sykes borrows methods from each of these …

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

The University of New Hampshire Law Review

[Excerpt] “The prosecution must prove every element of the crime beyond a reasonable doubt for a valid conviction. The Constitution nowhere explicitly contains this requirement, but the Supreme Court in In re Winship1 stated that due process commands it. Justice Brennan, writing for the Court, noted that the Court had often assumed that the standard existed, that it played a central role in American criminal justice by lessening the chances of mistaken convictions, and that it was essential for instilling community respect in criminal enforcement. The reasonable doubt standard is fundamental because it makes guilty verdicts more difficult. As Winship …

Of Justice Sotomayor And The Jicarilla Apache Nation: Slouching Toward Intellectual Honesty And The Canons Of Construction, Jeremy Stevens

American Indian Law Journal

No abstract provided.

Sham Of The Moral Court? Testimony Sold As The Spoils Of War, Mark Findlay, Sylvia Ngane

Research Collection Yong Pung How School Of Law

This paper analyses the critical influences on witness-based truth-telling for judicial decision-making in the international criminal tribunals. The judicial fixation on witness testimony reflects the weight and legitimacy given to personal testimony before international courts. This weight must be balanced by the awareness that a witness may provide false testimony intentionally, or may be coaxed by third parties to provide such testimony, as has been evidenced recently before the ICC. If witness testimony is tainted then its capacity to endorse the truth-finding function of the court is compromised. As a consequence the ability to assert that the tribunal is a …

The Public Nature Of Indian Reservation Roads, M. Brent Leonard

American Indian Law Journal

No abstract provided.

Enhancing Tribal Sovereignty By Protecting Indian Civil Rights: A Win-Win For Indian Tribes And Tribal Members, Rob Roy Smith

American Indian Law Journal

No abstract provided.

Gas Tax Agreements In Indian Country, Jonathan White

American Indian Law Journal

No abstract provided.

Justice Rehnquist’S Theory Of Indian Law: The Evolution From Mazurie To Atkinson – Where Did He Leave The Court?, Brenna Willott

American Indian Law Journal

No abstract provided.

Protecting The Children Of The World: A Proposal For Tracking Convicted Sex Offenders Internationally, Nicole J. Smith

San Diego International Law Journal

This comment will compare and contrast the laws governing sex offenders in the United States and European Union and address the current obstacles in establishing a comprehensive international law about sex offenders. Finally, this comment will propose a global sex offender registry to allay the problem of sex offenders in the international community.

Eyewitnesses And Exclusion, Brandon L. Garrett

Vanderbilt Law Review

The dramatic moment when an eyewitness takes the stand and points to the defendant in the courtroom can be pivotal in a criminal trial. That piece of theater, however compelling to jurors, is staged: it is obvious where the defendant is sitting, and, importantly, the memory of the eyewitness should have been tested before trial using photo arrays or lineups. Such courtroom displays have been accepted for so long that their role in the U.S. Supreme Court's due process jurisprudence regulating eyewitness identifications has been neglected. The due process test that regulates tens of thousands of eyewitness identifications each year …