Criminal Law Commons^™

The Right To Be Hurt. Testing The Boundaries Of Consent., Vera Bergelson

Rutgers Law School (Newark) Faculty Papers

People's right to consent to pain, injury or death has always been one of the most controversial issues in criminal law and moral philosophy. In recent years, that issue has moved to the forefront of public, legislative, and academic debates in the United States and abroad due to a series of high-profile criminal trials, which involved consenting victims in various contexts--from sadomasochism and cannibalism to experimental medical treatment and mercy killing.

Currently, American criminal law does not recognize consent of the victim as a defense to bodily harm, except in a few historically defined circumstances. That rule has been criticized …

Review Essay: Using All Available Information, Max Huffman

ExpressO

This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting …

The War On Terror, Local Police, And Immigration Enforcement: A Curious Tale Of Police Power In Post-9/11 America, David A. Harris

ExpressO

In post-9/11 America, no goal ranks higher for law enforcement than preventing the next terrorist attack. This is as true for local police departments as it is for the FBI, and police in cities. At the same time, many advocates of tightening U.S. immigration enforcement have recast their efforts as national security and anti-terrorism campaigns. Thus, these advocates and their many allies in the current administration and in Congress have called for local police to become involved in enforcing immigration law. Officials in both the executive and legislative branches of the federal government have taken a number of actions designed …

Non Bis In Idem And The International Criminal Court, Reynaud Neil Daniels

ExpressO

Non bis in idem, or the double jeopardy principle, is a fundamental element of fairness in criminal procedure. At its core, it prohibits the state from repeatedly prosecuting, and punishing, individuals for the same offence. The Rome Statute contains the principle but affords little protection against harassment by contracting parties.

Looking Deathworthy: Perceived Stereotypicality Of Black Defendants Predicts Capital-Sentencing Outcomes, Jennifer L. Eberhardt, P G. Davies, Valerie J. Purdie-Vaughns, Sheri Lynn Johnson

Cornell Law Faculty Publications

Researchers previously have investigated the role of race in capital sentencing, and in particular, whether the race of the defendant or victim influences the likelihood of a death sentence. In the present study, we examined whether the likelihood of being sentenced to death is influenced by the degree to which a Black defendant is perceived to have a stereotypically Black appearance. Controlling for a wide array of factors, we found that in cases involving a White victim, the more stereotypically Black a defendant is perceived to be, the more likely that person is to be sentenced to death.

Yissacharov V. Chief Military Prosecutor, Dorit Beinisch, Aharon Barak, Eliezer Rivlin, Ayala Procaccia, Edmond E. Levy, Miriam Naor, Salim Joubran, Mishael Cheshin, Asher Grunis

Translated Opinions

Facts: While being admitted into prison for being absent from the army without leave, the appellant was found to have a dangerous drug in his possession. When he was interrogated about this, the interrogator failed to advise the appellant that he had a right to consult a lawyer. This omission, which was omitted by the prosecution, was held by the trial court to have been illegal and intentional. In the course of the interrogation, the appellant confessed that he had, on three occasions while he was a soldier, made use of dangerous drugs.

The appellant argued that the confession should …

To Catch A Sex Thief: The Burden Of Performance In Rape And Sexual Assault Trials, Corey Rayburn Yung

ExpressO

Despite decades of efforts to reform American rape law, prosecution and conviction rates remain low compared to similar crimes. While activists led legislatures to adopt important statutory changes for rape and sexual assault, only modest effects in the levels of sexual violence have been observed. Nonetheless, reform-minded scholars continue to focus on statutory and rule tinkering as a means to quell sexual violence.

This article argues against the commonly-held belief that the crucial factors in determining the outcome of rape trials are substantive and procedural in nature. Rather, the issues of performance, representation, and language often pre-determine the outcomes of …

Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp

ExpressO

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is …

Ambiguity Aversion And The Criminal Process, Alex Stein, Uzi Segal

Faculty Scholarship

No abstract provided.

Making Comparative Criminal Law Possible, Lutz Eidam

Buffalo Law Review

No abstract provided.

Adding Fuel To The Fire: United States V. Booker And The Crack Versus Powder Cocaine Sentencing Disparity, Briton K. Nelson

University of Richmond Law Review

No abstract provided.

Carousel Fraud In The Eu: A Digital Vat Solution, Richard Thompson Ainsworth

Faculty Scholarship

Recent reports from the UK's Office for National Statistics estimate (as of May 11, 2006) that Missing Trader Intra-community Fraud (MTIC) may exceed 10 billion pounds this year.

Carousel fraud, a variant of MTIC where the same goods are sold over and over again, exploits the lingering non-certified, non-digital attributes of the EU VAT. The UK believes that carousel fraud cost the Exchequer between 1.12 and 1.9 billion pounds in the 2004-05 financial year. This article proposes that carousel fraud be eliminated in the EU through selective insertion of Digital VAT functionality into the present system. In other words, it …

Facing Evil, Joseph E. Kennedy

Michigan Law Review

It is no earthshaking news that the American public has become fascinated- some would say obsessed-with crime over the last few decades. Moreover, this fascination has translated into a potent political force that has remade the world of criminal justice. Up through the middle of the 1960s crime was not something about which politicians had much to say. What was there to say? "Crime is bad." "We do what we can about crime." "Crime will always be with us at one level or another." Only a hermit could have missed the transformation of crime over the last couple of decades …

Liberalism, Normative Expectations, And The Mechanics Of Fault, Kyron J. Huigens

Articles

No abstract provided.

Litigating Child Recruitment Before The Special Court For Sierra Leone, Noah B. Novogrodsky

San Diego International Law Journal

In May 2004, the Special Court for Sierra Leone issued a landmark decision finding that an individual may be held criminally responsible for the offense of recruiting child soldiers into armed conflict. As a hybrid tribunal established by the United Nations and the Government of Sierra Leone to try those who "bear the greatest responsibility" for serious violations of international humanitarian law committed during the country's civil war after November 1996, the Special Court is the first international criminal body to indict a person for the crime of recruiting and employing children in war. The decision in the case of …

The Obligation To Use Force To Stop Acts Of Genocide: An Overview Of Legal Precedents, Customary Norms, And State Responsibility, Joshua M. Kagan

San Diego International Law Journal

Though the Genocide Convention was created to "liberate mankind from [the] odious scourge" of genocide, the dreams of its drafters have still not come to fruition. The commission of genocide, widely considered the most appalling of all crimes, did not end with the signing and ratification of the Convention in 1948. Genocide continues in the world today. While its sentiments were noble and its aims commendable, the Genocide Convention as it is interpreted and applied today is insufficient to stop the commission of genocide in the world. In order to rid the world of this crime, a new interpretation of …

Saddam Hussein's Trial In Iraq: Fairness, Legitimacy & Alternatives, A Legal Analysis, Christian Eckart

Cornell Law School J.D. Student Research Papers

The paper focuses on Saddam Hussein’s trial in front of the Iraqi High Criminal Court in Baghdad. After providing an overview of the facts surrounding the court’s installation, the applicable international law is identified and the fairness and legitimacy of the current proceedings are analyzed. The paper finishes by considering whether the trial should be relocated and addresses alternative venues that could have been chosen to prosecute Iraq’s ex-dictator.

Summary Of Ford V. State Of Nevada, 122 Nev. Adv. Op. 36, Denise S. Balboni

Nevada Supreme Court Summaries

Appeal from jury verdict in criminal trial on grounds that prosecutors impermissibly excluded jurors based on race in violation of Batson v. Kentucky.

Summary Of Stockmeier V. Nev. Dep’T. Of Corrections Psychological Review Panel, 124 Nev. Adv. Op. No. 30, Holly Ludwig

Nevada Supreme Court Summaries

Appeal from district court’s grant of a 12(b)(5) motion to dismiss in favor of Defendant Psych Panel. District court held: (1) that Stockmeier lacked standing to assert violations of the open meeting law; (2) that prisoners cannot conduct the people’s business and therefore cannot assert open meeting law violations; and (3) that Psych Panel hearings qualify as quasi-judicial proceedings and are therefore exempt from the open meeting law.

State V. Martinez: The Boundaries Of Judicial Discretion And The Sixth Amendment Right To Trial By Jury In Arizona, Jamie C. Couche

ExpressO

Is a defendant’s Sixth Amendment right to a trial by jury violated when a sentencing judge considers factors beyond those found by a jury and then imposes a super-aggravated sentence? The Arizona Supreme Court says it is not violated so long as the fact-finding satisfies the Apprendi/Blakely progeny.

The Z-Test For Percentages: A Statistical Tool To Detect Pretextually Neutral Juror Challenges, Marvin L. Longabaugh

ExpressO

In the article, I discuss the potential use of public opinion polls to measure the discriminatory effect of certain questions in jury selection. While the laws surrounding race and gender based jury selection are known to most lawyers, there has been little scrutiny on questions that might be posed to potential jurors that are facially neutral, yet have a discriminatory impact. This article examines a number of such questions and offers a statistical test to determine whether a proposed question has, in fact, a 98% certainty of having a discriminatory effect if relied upon in jury selection.

“Murder, Pennsylvania Style”: Comparing Traditional American Homicide Law To The Statutes Of Model Penal Code Jurisdictions, David Crump

ExpressO

No abstract provided.

The Unbearable Lightness Of Batson: Mixed Motives And Discrimination In Jury Selection, Russell D. Covey

ExpressO

The Equal Protection Clause prohibits the use of peremptory challenges to exclude jurors on account of protected characteristics such as race and sex. Mixed-motive problems arise where the proponent of a strike confesses to have been motivated by a combination of proper and improper purposes. In other contexts, so-called “mixed-motive analysis,” which provides the challenged party an opportunity to prove that the “same decision” would have been made absent the improper motive, has been permitted. The United States Supreme Court has not yet ruled, however, on whether “mixed-motive” analysis is consistent with the governing framework set forth in Batson v. …

Entrapment By Numbers, Dru Stevenson

ExpressO

This essay analyzes emerging trends in entrapment law, and is the first to describe the declining numbers of reported cases that involve the entrapment defense. This phenomenon is attributed to decreasing levels of uncertainty in the rules pertaining to the defense, and to discreet procedural issues. The shifting degrees of certainty in penal rules, which have become increasingly mechanical and mathematical over time, are shown to disfavor certain defendants inherently, to the point of being a snare or source of “entrapment” themselves for these individuals. (Published in 16 J. Law & Pub. Pol’y 1 2005)

Protecting Our Children And The Constitution: An Analysis Of The "Virtual" Child Pornography Provisions Of The Protect Act Of 2003, James Nicholas Kornegay

William & Mary Law Review

No abstract provided.

Marriage Mimicry: The Law Of Domestic Violence, Ruth Colker

William & Mary Law Review

In this Article, Professor Colker argues that the legal system does not simply privilege those in marital relationships but has now begun to privilege those in "marriage-like" relationships through what she terms a marriage-mimicry model. She uses the law of domestic violence to critique this model. She traces the haphazard development of the law of domestic violence and argues that it has served to underprotect many of the victims of domestic violence because lawmakers have reflexively only provided legal recourse for those in marriage-like relationships without asking who is most in need of legal protection. She argues that the legal …

The Political Economy Of Application Fees For Indigent Criminal Defense, Wayne A. Logan, Ronald F. Wright

Scholarly Publications

In this article, we trace the origin and spread of state laws designed to make indigent criminal defendants pay, up-front, a portion of the costs of their state-appointed counsel. These co-pays, which can range from $10 to over $200, are part of the increasingly popular pay-as-you-go movement, requiring criminal defendants to defray the system costs of their prosecution and punishment.

On their face, such laws would appear to be a natural target of vigorous resistance by the defense bar. This turns out to be only half true, however, for it is often the leaders of public defense organizations, faced with …

Where To Go From Here? The Roberts Court At The Crossroads Of Sentencing, Nora V. Demleitner

Scholarly Articles

As the Supreme Court has turned federal sentencing upside down in Booker, it has left a host of open questions in the wake of that decision. The outcome of these questions is often difficult to predict, for lower courts and commentators alike, as the Court has failed to develop an overarching sentencing philosophy to replace the rehabilitation-focused one that animated sentencing for so long. If the Court were to reach consensus on that issue, it would be better able to speak coherently on unresolved sentencing matters. This introduction to an Issue of the Federal Sentencing Reporter highlights some of the …

Evolution And Denial: State Sentencing After Blakely And Booker, Steven L. Chanenson, Daniel F. Wilhelm

Working Paper Series

Justice Louis Brandeis famously described the states as laboratories where individual jurisdictions can experiment with various legal strategies. In the wake of Blakley v. Washington, and United States v. Booker those laboratories have been working overtime. Since June 2004, both state legislatures and state courts have grappled with the significance of the United States Supreme Court's treatment of the Sixth Amendment in sentencing. It is unsurprising, given the extraordinary significance and potential reach of Blakely and Booker, that this Herculean task has produced divergent results.

Although there are many potential ways to sort those results, for the purposes of these …

Adult Punishment For Juvenile Offenders: Does It Reduce Crime?, Richard E. Redding

Working Paper Series

This chapter discusses the research on the general and specific deterrent effects of transferring juveniles for trial in adult criminal court, identifies gaps in our knowledge base that require further research, discusses the circumstances under which effective deterrence may be achieved, and examines whether there are effective alternatives for achieving deterrence other than adult sanctions for serious juvenile offenders. As a backdrop to this analysis, the chapter first examines the role of public opinion in shaping the get tough policies, and how policy makers have misunderstood and perceived support for these policies.