Criminal Law Commons^™

Lowering The Bar: In Re Van Orden And The Constitutionality Of The 2006 Amendments To Missouri's Sexually Violent Predator Act, Lauren Standlee

Richmond Journal of Law and the Public Interest

Given the public's fear and anxiety regarding sex offenders, especially those who target children, society is predisposed to lock them up and throw away the key. To avoid reproach, however, our society must trust in our judicial processes and involuntarily commit only those who are found to be sexually violent predators beyond a reasonable doubt. Furthermore, the judicial system must unconditionally release sexually violent predators when they are deemed to no longer pose a danger to themselves or to others. The methods by which our society commits and holds such individuals implicate not only their behavior but also our own, …

Beyond Training Prosecutors About Their Disclosure Obligations: Can Prosecutors' Offices Learn From Their Lawyers' Mistakes Symposium: New Perspectives On Brady And Other Disclosure Obligations: What Really Works, Bruce A. Green

Faculty Scholarship

Prosecutors, criminal defense lawyers, judges, and legal academics from around the country recently met at the Benjamin N. Cardozo School of Law in New York to discuss prosecutors' compliance with their disclosure obligations. The overarching question was how prosecutors' offices could do a better job. To assist representatives of the legal profession in approaching this question from new directions, the Symposium organizers invited speakers from outside the legal profession to talk about the causes of error and methods used to reduce error in other contexts. One of the themes was that, outside the practice of law, individuals and institutions learn …

Exporting Harshness: How The War On Crime Helped Make The War On Terror Possible, James Forman Jr.

Georgetown Law Faculty Publications and Other Works

This Essay responds to a consensus that has formed among many opponents of the Bush administration’s prosecution of the war on terror. The consensus narrative goes like this: America has a long-standing commitment to human rights and due process, reflected in its domestic criminal justice system’s expansive protections. Since September 11, 2001, President Bush, Vice President Cheney, former Defense Secretary Rumsfeld, and their allies have dishonored this tradition. It is too simple, I suggest, to assert that the Bush administration remade our justice system and betrayed American values. This Essay explores the ways in which our approach to the war …

Justice On The Ground: Can International Criminal Courts Strengthen Domestic Rule Of Law In Post-Conflict Societies?, Jane E. Stromseth

Georgetown Law Faculty Publications and Other Works

The author examines how developments in international criminal law – including creation of the International Criminal Court and various hybrid tribunals – can have an impact on rule-of-law building efforts in post-conflict societies. Although trials of atrocity perpetrators primarily and appropriately focus on fairly trying the accused individuals, these processes also have a wider impact on public perceptions of justice and potentially can influence a society’s ability to embrace rule of law norms. The quality of outreach and capacity-building accompanying these trials may well have a decisive effect on whether these proceedings, on balance, strengthen or undermine public confidence in …

Culpability In Creating The Choice Of Evils, Marc O. Degirolami

Scholarly Articles

Can an actor justify criminal conduct when he was criminally culpable in creating the conditions making it necessary? Virtually every American jurisdiction answers that he cannot and bars the necessity defense under those circumstances. Whereas many scholars have condemned that response, this Article takes the very different view that the exclusion of the defense for purposeful, knowing, and reckless criminal conduct that directly causes the conditions leading to the allegedly justified act represents a sound retributivist check on what is an otherwise cruder evaluation of whether conduct is socially valuable, worthy of praise, or, in a word, justified. Criminal "created …

The Effects Of Booker On Inter-Judge Sentencing Disparity, Ryan W. Scott

Articles by Maurer Faculty

No abstract provided.

Prosecutors As Punishment Theorists: Seeking Sentencing Justice, Michael A. Simons

Faculty Publications

(Excerpt)

It is a truism that prosecutors are called not just to win, not just to zealously represent their clients, but rather to "seek justice." What this admonition means in practice, however, is notoriously slippery. Most obviously, it means that prosecutors should not convict (or charge) the innocent. It is also quite commonly understood to mean that prosecutors should "play by the rules" and should ensure that defendants are afforded a fair process. More fundamentally, it means that prosecutors should ensure that the power of the state is wielded judiciously. In other words, the prosecutor has an obligation not just …

Culpability In Creating The Choice Of Evils, Marc O. Degirolami

Faculty Publications

Can an actor justify criminal conduct when he was criminally culpable in creating the conditions making it necessary? Virtually every American jurisdiction answers that he cannot and bars the necessity defense under those circumstances. Whereas many scholars have condemned that response, this Article takes the very different view that the exclusion of the defense for purposeful, knowing, and reckless criminal conduct that directly causes the conditions leading to the allegedly justified act represents a sound retributivist check on what is an otherwise cruder evaluation of whether conduct is socially valuable, worthy of praise, or, in a word, justified. Criminal "created …

Self-Representation In The International Arena: Removing A False Right Of Spectacle, Eugene Cerruti

Articles & Chapters

Recent historical scholarship has demonstrated that the practice of self-representation at common law was developed and promoted not to secure a valued right to the accused but rather to compromise the defendant’s ability to present an effective defense - by denying him an effective right to be represented by counsel. The Supreme Court in Faretta v. California stood this history on its head in order to read into the Sixth Amendment an implied right to self-representation equal to the now preeminent right to counsel. The Faretta doctrine was carelessly adopted yet has been resolutely defended by the Supreme Court, to …

Cops, Robbers, And Search Engines: The Questionable Role Of Criminal Law In Contributory Infringement Doctrine, Mark Bartholomew

Journal Articles

Online technologies have created a new litigation locus for intellectual property rights holders, one that targets intermediaries, not direct infringers. This unprecedented litigation strategy has put sudden pressure on the courts to evaluate the liability of indirect infringers. Without a developed body of precedent at their disposal, judges have resorted to analogies from the criminal law of accomplice liability to set the boundaries of contributory infringement. Does it make sense for intellectual property regulation to depend on the same principles that animate criminal law? This Article maintains that it would be a mistake to remake contributory infringement law in criminal …

Proportional Deportation, Angela M. Banks

Faculty Publications

No abstract provided.

Temkin & Krahe, Sexual Assault And The Justice Gap: A Question Of Attitude, Elisabeth Mcdonald

Pace Law Review

No abstract provided.

The Jurisdictional Entrapment Defense: An Analytic Framework For Claims Of Manufactured Jurisdiction In Child Exploitation Prosecutions, Leonid Feller

Kentucky Law Journal

No abstract provided.

A Case For A Constitutional Right To Counsel In Habeas Corpus, Emily Garcia Uhrig

McGeorge School of Law Scholarly Articles

No abstract provided.

The Gaelic Goetz: A Case Of Self-Defense In Ireland, Stacy Caplow

Faculty Scholarship

No abstract provided.

Clawbacks: Prospective Contract Measures In An Era Of Excessive Executive Compensation And Ponzi Schemes, Miriam A. Cherry, Jarrod Wong

All Faculty Scholarship

In the spring of 2009, public outcry erupted over the multi-million dollar bonuses paid to AIG executives even as the company was receiving TARP funds. Various measures were proposed in response, including a 90% retroactive tax on the bonuses, which the media described as a "clawback." Separately, the term "clawback" was also used to refer to remedies potentially available to investors defrauded in the multi-billion dollar Ponzi scheme run by Bernard Madoff. While the media and legal commentators have used the term "clawback" reflexively, the concept has yet to be fully analyzed. In this article, we propose a doctrine of …

Proportional Mens Rea, Stephen F. Smith

Journal Articles

This Essay makes the case for "proportional mens rea," a proportionality-based approach to mens rea selection. Proportional mens rea would provide proportionality safeguards that are otherwise entirely lacking in substantive criminal law and,as a practical matter, unavailable in constitutional law. Creating implied mens rea requirements, where necessary to ensure proportional punishment, is not a judicial usurpation of a legislative function. Rather, it is to take seriously the role that courts play, under both constitutional and substantive criminal law, to ensure that punishment "fits" the crime. Moreover, proportional mens rea would represent a needed counterweight to prosecutorial behavior whereas current doctrine …

Trawling Dna Databases For Partial Matches: What Is The Fbi Afraid Of?, David H. Kaye

Faculty Scholarship

DNA evidence is often presented as the “gold standard” for forensic science. But this was not always the case. For years, eminent scientists complained that the estimates of the tiny frequencies of DNA types were unfounded. It took scores of research papers, dozens of judicial opinions, and two committees of the National Academy of Sciences to resolve the dispute by the mid-1990s. Since 2000, however, reports have surfaced of shocking numbers of “partial matches” among samples within large DNA databases, and some scientists have complained that the infinitesimal figures used in court to estimate the probability of a random match …

Rounding Up The Usual Suspects: A Logical And Legal Analysis Of Dna Trawling Cases, David H. Kaye

Faculty Scholarship

Courts are beginning to confront a problem that has divided the scientific community - whether identifying a defendant by fishing through a database of DNA types to find a match to a crime-scene sample reduces the significance of a match. For years, the problem seemed academic. Now that the U.S. has more than five million DNA profiles from convicted offenders and suspects in a national, computer-searchable database, the question has assumed more urgency. Increasingly, individuals are being charged with crimes as a result of a match between their recorded profile and the DNA from a victim or scene of a …

The Phases And Faces Of The Duke Lacrosse Controversy: A Conversation, James E. Coleman, Angela Davis, K.C. Johnson, Lyrissa Lidsky

Faculty Publications

The genesis of this panel is an essay I wrote arguing that the single moniker "Duke lacrosse controversy" encapsulates a broad, multi-faceted legal, political, and social controversy that more accurately consists of five related seriatim sub-controversies. Initially, it was a sexual assault case. An African-American woman, hired as an exotic dancer at a party thrown by members of the Duke University men's lacrosse team, reported to Durham police that she had been sexually assaulted by several white team members. The allegations quickly became a national story, tinged with issues of race, class, gender, privilege, and at some level, the role …

American Oresteia: Herbert Wechsler, The Model Penal Code, And The Uses Of Revenge, Anders Walker

All Faculty Scholarship

The American Law Institute recently revised the Model Penal Code's sentencing provisions, calling for a renewed commitment to proportionality based on the gravity of offenses, the "blameworthiness" of offenders, and the "harms done to crime victims." Already, detractors have criticized this move, arguing that it replaces the Code's original commitment to rehabilitation with a more punitive attention to retribution. Yet, missing from such calumny is an awareness of retribution's subtle yet significant role in both the drafting and enactment of the first Model Penal Code (MPC). This article recovers that role by focusing on the retributive views of its first …

Truth Or Legality: The Limits On The Laundering Of Illegally Gathered Evidence In A State Under The Rule Of Law (Verdad O Legalidad: Los Límites Del Blanqueo De Pruebas Ilegalmente Recogidas En Un Estado De Derecho) (Spanish), Stephen C. Thaman

All Faculty Scholarship

This paper discusses the tension between the constitutional rights to silence and to privacy and the important goal of criminal procedure to ascertain the truth. It traces exclusionary rules from the inquisitorial rules relating to nullities, to modern constitutional, statutory and jurisprudential rules for excluding illegally gathered evidence.

Note: downloadable document is in Spanish

The Victim-Informed Prosecution Project: A Quasi-Experimental Test Of A Collaborative Model For Cases Of Intimate Partner Violence, Lauren Bennett Cattaneo, Lisa A. Goodman, Deborah Epstein, Laurie S. Kohn, Holly A. Zanville

Georgetown Law Faculty Publications and Other Works

The Victim-Informed Prosecution Project (VIP) was designed to amplify the voice of the victim in the prosecution of a battering current or ex-partner through collaboration between the prosecution and victim-centered agencies. This article describes the rationale for and design and implementation of VIP and then explores whether it increased perceived voice. While some VIP services (advocacy and civil protection order representation) were associated with increased perceived voice, the program as a whole was associated with it only in the context of greater contact with prosecutors, when cases were more likely to be felonies. The authors make specific recommendations for applying …

What We Can Learn About Appeals From Mr. Tillman's Case: More Lessons From Another Dna Exoneration, Giovanna Shay

Faculty Scholarship

In 2006, Mr. James Calvin Tillman became the first person in Connecticut to be exonerated through the use of post-conviction DNA testing. He joined a group of DNA exonerees that currently numbers more than 200 nationwide. In many ways, Mr. Tillman's case is a paradigmatic DNA exoneration-involving a cross-racial mistaken eyewitness identification, issues of race, and faulty forensic testimony. This Article uses the published opinions affirming Mr. Tillman's conviction-particularly his direct appeal to the Connecticut Supreme Court, and his appeal from the state habeas proceeding-to reflect on the meaning of appellate and postconviction proceedings. Does Mr. Tillman's exoneration reveal any …

2009 Survey Of Books Related To Women And The Law: Review: Locked Up, Overlooked: Women Behind Bars: The Crisis Of Women In The U.S. Prison System, Giovanna Shay

Faculty Scholarship

The Author reviews journalist Silja Talvi’s Women Behind Bars: The Growing Crisis of Women in the U.S. Prison System (“Women Behind Bars”) which presents an engaging overview of issues affecting incarcerated women. It succinctly illustrates some of the important connections involving the War on Drugs, racial disparity, and the high rate of substance abuse and physical and sexual abuse among incarcerated women. Each of the chapters could be assigned on its own to a class or reading group. While Talvi states that she is not trying to write a scholarly book, as a contribution to public discourse, Women Behind Bars …

Locked Up, Overlooked: Women Behind Bars: The Crisis Of Women In The U.S. Prison System, Giovanna Shay

Faculty Scholarship

Journalist Silja Talvi’s Women Behind Bars: The Growing Crisis of Women in the U.S. Prison System (“Women Behind Bars”) is an engaging overview of issues affecting incarcerated women. It succinctly illustrates some of the important connections involving the War on Drugs, racial disparity, and the high rate of substance abuse and physical and sexual abuse among incarcerated women. Each of the chapters could be assigned on its own to a class or reading group. While Talvi states that she is not trying to write a scholarly book, as a contribution to public discourse, Women Behind Bars furthers the goal of …

Introduction: Challenging The School-To-Prison Pipeline, Deborah N. Archer

Articles & Chapters

No abstract provided.

Brain Imaging For Legal Thinkers: A Guide For The Perplexed, Owen D. Jones, Joshua W. Buckholtz, Jeffrey D. Schall, Rene Marois

Vanderbilt Law School Faculty Publications

It has become increasingly common for brain images to be proffered as evidence in criminal and civil litigation. This Article - the collaborative product of scholars in law and neuroscience - provides three things.

First, it provides the first introduction, specifically for legal thinkers, to brain imaging. It describes in accessible ways the new techniques and methods that the legal system increasingly encounters.

Second, it provides a tutorial on how to read and understand a brain-imaging study. It does this by providing an annotated walk-through of the recently-published work (by three of the authors - Buckholtz, Jones, and Marois) that …

The Chameleon Court: The Changing Face Of The Icc, Michael A. Newton

Vanderbilt Law School Faculty Publications

An International Criminal Court (ICC) that routinely overrides the good faith reasoning of domestic officials would inevitably face a crisis of confidence and cooperation. The practice of complementarity may well be the fulcrum supporting the Court's long-term legitimacy; and this principle is all the more important because it is designed to provide intellectual leverage to move non-States Parties towards treaty accession. The early practice of the ICC, however, indicates that the model of a healthy and cooperative synergy between the Court and domestic states is in danger of being replaced by a model of competition. The plain text of art …

A Defense Of The Integrationist Test As A Replacement For The Special Defense Of Insanity, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article, written for a symposium on "Criminal Law and the Excuses," defends the "Integrationist" approach to analysis of the exculpatory effect of mental disability that I developed in Chapter Two of my book, Minding Justice: Laws that Deprive People with Mental Disability of Life and Liberty. The book argues that the special nature of the insanity defense should be reconsidered now that modern criminal law, in particular the Model Penal Code, has subjectivized affirmative defenses such as self-defense and duress for people who are not mentally ill. More specifically, the claim is that these latter defenses capture the universe …