Criminal Law Commons^™

Drug Tests, Arrests & Fetuses: A Comment On The U.S. Supreme Court's Narrow Opinion In Ferguson V. City Of Charleston, Brigitte M. Nahas

Cardozo Journal of Equal Rights & Social Justice

The article examines the Supreme Court's decision in Ferguson v. City of Charleston, where the Court ruled that a hospital's drug-testing policy for pregnant patients violated the Fourth Amendment. The analysis critiques the Court's narrow opinion for failing to provide clear guidance on future drug-testing policies, while emphasizing the unconstitutionality of using such policies primarily for law enforcement purposes. The author argues that the decision leaves unresolved questions about the balance between government interests and women's privacy and reproductive rights, particularly in the context of prenatal care and drug use.

The Jury In The 21st Century: An Interdisciplinary Conference: Introduction, Susan Herman, Lawerence M. Solan

Faculty Scholarship

No abstract provided.

Convicting The Innocent Beyond A Reasonable Doubt: Some Lessons About Jury Instructions From The Sheppard Case, Lawrence Solan

Faculty Scholarship

No abstract provided.

Allocution For Victims Of Economic Crimes, Jayne W. Barnard

Faculty Publications

No abstract provided.

Constitutional Formalism And The Meaning Of Apprendi V. New Jersey, Benjamin Priester

Journal Publications

In June 2000, the United States Supreme Court decided Apprendi v. New Jersey,' a case that likely will have a significant impact on the administration of criminal justice in federal and state courts. The Court imposed a procedural limitation on prosecutors by restricting the types of facts that may be proven at sentencing rather than at trial. Specifically, the Court adopted a constitutional principle that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum" is an element of the offense of conviction. Under wellestablished constitutional doctrine, the Constitution's full procedural protections, especially the necessity of …

It’S All About What You Know: The Specific Intent Standard Should Govern "Knowing" Violations Of The Clean Water Act, Randall S. Abate, Dayna E. Mancuso

Journal Publications

Part I of this Article examines the historical and conceptual foundations of the specific intent standard as applied both outside and within the environmental law context. Part II addresses the historical and conceptual foundations of the general intent standard, also outside and within the environmental law context. Part III reviews the history of the conflict between application of the specific intent and general intent standards in prosecutions for knowing violations of the Clean Water Act. Part IV presents arguments that support application of the specific intent standard to knowing violation cases under section 309(c)(2)(A) of the CWA. Part V analyzes …

It's Time To Put The Military's Death Penalty To Sleep , Michael I. Spak

Cleveland State Law Review

Part I will focus on the death penalty in the civilian sector of the United States. It begins with a brief history of and an introduction to death penalty laws in the United States. A critical examination of the primary arguments used to justify the death penalty follows. Part I next offers a brief overview of other independent reasons for the abolition of the death penalty. After having concluded that the application of the death penalty is unfair in the civilian sector and should thus be abolished, the article will then shift its focus to the death penalty in the …

Introduction Symposium: Toward More Reliable Jury Verdicts - Law, Technology, And Media Development Since The Trials Of Dr. Sam Sheppard , Patricia J. Falk

Cleveland State Law Review

The three Sheppard cases, spread over almost half a century, serve as a point of departure to explore how the multiple forces of law, science, and the media have interacted in criminal trials and in later challenges to the reliability of those trials. The Sheppard cases have resulted in five enduring legacies. Perhaps the most obvious legacy of the Sheppard cases is the new law the case made when it was heard by the United States Supreme Court on a federal habeas corpus appeal. In Sheppard v. Maxwell, the Court created a new legal standard regarding the effects of pretrial …

Witness To History: The Role Of Legal Commentators In High Profile Trials - Opening Remarks, Laurie L. Levenson

Cleveland State Law Review

As legal commentators, our role is, first and foremost, to educate the public and the media. The next thing that a commentator can do is, of course, provide some type of expertise. An experienced lawyer or legal commentator should know enough to say, if given the opportunity, that a certain fact will not necessarily make a difference in the case because the jurors will not hear it or because it is unrelated to the legal issues in the case. Another thing legal commentators can do is address problems in the presentation of what the law and the legal process is. …

Open Courts: How Cameras In Courts Help Keep The System Honest, Clara Tuma

Cleveland State Law Review

Why is it important to televise coverage in trials? The basic answer is that our judicial system needs to be as open as possible. There is a reason we do not hold trials in private and a reason we open the courtroom doors and invite in the world. The reason is that justice shines brightest in the sunshine. In today's busy world only a few people can actually attend court proceedings. With so many people relying on television as their primary resource of information, televised coverage of trials exposes greater numbers o f citizens to our justice system. A camera …

Convicting The Innocent Beyond A Reasonable Doubt: Some Lessons About Jury Instructions From The Sheppard Case, Lawrence M. Solan

Cleveland State Law Review

Indeed, it is difficult to prove one's innocence, and the legal system purports not to require defendants in criminal cases to do so. The shift in the burden of proof happened for a number of reasons. In this article, I will discuss another factor that I believe pervades the criminal justice system: jury instructions that shift the burden from the government to the defendant. Part II of this article establishes three criteria for good criminal jury instructions. They are fidelity to the law, comprehensibility, and consistency with the presumption of innocence. It then discusses the presumption of innocence, burden of …

A Distant Mirror: The Sheppard Case From The Next Millennium, James Robertson

Cleveland State Law Review

My own vantage point is that of a trial judge, and for me, revisiting the Sheppard case is a chance to ruminate on the relationship between judges and the media and how judges deal with high profile cases. I will consider that subject, and then meander a little farther along and share a few thoughts about what I call hermetically sealed justice - our modem insistence that judges say nothing and juries know nothing. Finally, I will have a few words to say about DNA evidence and the "reliable verdict" ideal that appears to be one of the propositions to …

Scientific Evidence In The Sam Sheppard Case , Paul C. Giannelli

Cleveland State Law Review

My panel is discussing reliable jury verdicts, and my topic is "scientific" evidence. One way to approach this issue is to compare scientific evidence with other methods of proof. The trial lawyers that I worked with viewed cases as falling primarily into one of three categories: eyewitness cases, confession cases, and "scientific" evidence cases. In this scheme, anything that was not an eyewitness, confession, or snitch case was a "scientific evidence" case. These categories, of course, are neither exhaustive nor mutually exclusive; often two and sometimes all three are involved. Nevertheless, these categories are helpful because they present trial attorneys …

Public Executions In America Should Death Row Inmates Be Able To Choose Between Private And Public Death, Nicholas Compton

Richmond Journal of Law and the Public Interest

On June 13, 1997, Timothy McVeigh was sentenced to death for the bombing of the Alfred P. Murrah Federal Building in Oklahoma City on April 19,1995. The bombing resulted in the deaths of 168 people and the wounding of over 500 more. McVeigh successfully petitioned U.S. District Court Judge Richard Matsch to put an end to his appeals and expedite his execution. At midnight on February 16, 2001 McVeigh let pass his deadline to petition President George W. Bush for clemency. He is scheduled to die by lethal injection on May 16, 2001 at the federal penitentiary in Terre Haute, …

Specific Crime Vs. Criminal Ways: Criminal Conduct And Responsibility In Rule 3e1.1, Matthew Richardson

Vanderbilt Law Review

The United States Sentencing Commission ("Sentencing Commission") drafted Rule 3E1.1 with an inherent ambiguity, one that concerns both the Rule's purpose and design. Rule 3E1.1 allows for a reduction in sentence if a criminal "accepts responsibility" for his offense.' As result of the Rule's ambiguous language, prior tensions in interpretation of its meaning have spilled over into the current debate over sentence reductions.

The inherent ambiguity results from the Rule's genesis. The Sentencing Commission enacted the Rule with the purpose of increasing predictability in sentencing by reducing judicial discretion. Before the enactment of the Rule, mitigating and aggravating circumstances allowed …

The Future Of Southeast Asia: Challenges Of Child Sex Slavery And Trafficking In Cambodia, Benjamin Perrin, Shuvaloy Majumdar, Nicholas Gafuik, Stephanie Andrews

All Faculty Publications

The Cambodia Project: During 2000-2001, The Future Group launched its inaugural project in Southeast Asia to address child sex slavery and trafficking. For nearly one-hundred days, a deployment team of four worked with local organizations in Cambodia to implement new ideas to help the children affected by this crisis of international proportions. Initially, The Future Group had planned to work to implement five projects in Cambodia. After just three weeks, the deployment team was significantly ahead of schedule and began to actively identify new areas to pursue. Critical areas of need at local centres were addressed and projects that increased …

Playing God: An Essay On Law, Philosophy, And American Capital Punishment, Samuel J. Levine

Scholarly Works

This article looks at the capital sentencer's decision: Whether a death-eligible defendant will in fact receive the death sentence. Based in part on an examination of Jewish law and philosophy, Professor Levine identifies three particular areas in which it can be said that the Supreme Court requires the capital sentencer to "play God." First, capital sentencers are asked to ascertain the degree of a defendant's culpability by looking at factors that affect free will and victim impact evidence, implicating moral luck. Capital sentencers are also required to determine a person's total moral worth by considering character evidence. Finally, the Supreme …

State Cybercrime Legislation In The United States Of America: A Survey, Susan W. Brenner

Richmond Journal of Law & Technology

In the United States, cybercrimes are the focus of legislation adopted at both the state and federal levels. The U.S. Constitution allocates lawmaking authority between the two levels according to certain principles, one of which is that even when federal jurisdiction to legislate exists, federal legislation is appropriate only when federal intervention is required. And while federal legislative authority can pre-empt the states' ability to legislate in a given area, it rarely does, so it is not unusual for federal criminal laws to overlap with state prohibitions that address essentially the same issues.

Universal Jurisdiction And U.S. Law, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Chasing Bits Across Borders, Patricia L. Bellia

Journal Articles

As computer crime becomes more widespread, countries increasingly confront difficulties in securing evidence stored in electronic form outside of their borders. These difficulties have prompted two related responses. Some states have asserted a broad power to conduct remote cross-border searches - that is, to use computers within their territory to access and examine data physically stored outside of their territory. Other states have pressed for recognition of a remote cross-border search power in international fora, arguing that such a power is an essential weapon in efforts to combat computer crime. This Article explores these state responses and develops a framework …

The Deadly Paradox Of Capital Jurors, Theodore Eisenberg, Stephen P. Garvey, Martin T. Wells

Cornell Law Faculty Publications

We examine support for the death penalty among a unique group of respondents: one hundred and eighty-seven citizens who actually served as jurors on capital trials in South Carolina. Capital jurors support the death penalty as much as, if not more than, members of the general public. Yet capital jurors, like poll respondents, harbor doubts about the penalty's fairness. Moreover, jurors--black jurors and Southern Baptists in particular--are ready to abandon their support for the death penalty when the alternative to death is life imprisonment without the possibility of parole, especially when combined with a requirement of restitution. Support for the …

The American Prosecutor: Independence, Power, And The Threat Of Tyranny, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

This Article compares the power, practices, and policies of the Independent Counsel with those of ordinary state and federal prosecutors and suggests that the purported distinctions turn out to be illusory. Part I charts the principal structural characteristics of the Independent Counsel and regular prosecutors, with particular focus on prosecutorial discretion and the charging power. This section notes the public outrage over former Independent Counsel Kenneth Starr and argues that the American prosecutor deserves similar scrutiny. Using illustrations from the author’s former experience as a public defender, this Part explains how regular prosecutors engage in the same acts of misconduct …

The Sporting Approach To Harmless Error: The Supreme Court's "No Harm, No Foul" Debacle In Neder V. United States, Linda Carter

McGeorge School of Law Scholarly Articles

No abstract provided.

The Profiling Of Threat Versus The Threat Of Profiling, Frank H. Wu

Michigan Journal of Race and Law

This speech covers three points. First, a brief summary of the failed federal criminal prosecution of Wen Ho Lee is given. Second, Wu talks about the racial profiling used in this case. Third, Wu talks about the possibilites for Asian Americans and other racial minorities to engage in principled activism to overcome these unfortunate trends.

Causation, Contribution And Legal Liability: An Empirical Study, Lawrence Solan, John Darley

Faculty Scholarship

No abstract provided.

White House Anti-Drug Policy: Statutory And Constitutional Implications, Ariel Berschadsky

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Why Laws Work Pretty Well, But Not Great: Words And Rules In Legal Intrepretation, Lawrence Solan

Faculty Scholarship

No abstract provided.

Usual Suspects Beware: "Walk, Don't Run" Through Dangerous Neighborhoods, Margaret Anne Hoehl

University of Richmond Law Review

The Fourth Amendment to the United States Constitution is "designed 'to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals." The Amendment is currently interpreted as consisting of two separate clauses, the first generally prohibiting unreasonable searches and seizures, and the second requiring the establishment of probable cause prior to the issuance of a warrant. Hence, only those government searches and seizures requiring a warrant necessitate the establishment of probable cause, and all other searches and seizures simply need to be "reasonable."

Annual Survey Of Virginia Law: Criminal Law And Procedure, William J. Dinkin, Cullen D. Seltzer

University of Richmond Law Review

Because a large amount of the docket for the Court of Appeals of Virginia is comprised of criminal cases, and since the General Assembly regularly turns its attention to the questions of crime and punishment, in almost any year there are a great number of substantial developments in the criminal law. This past year was no exception. This article surveys developments in criminal law and procedure in Virginia from July 2000 to July 2001. Although this article is intended to survey significant developments over the past year, the reader is cautioned to bear in mind several important caveats.

"Apprendi" And Plea Bargaining, Nancy J. King, Susan Riva Klein

Vanderbilt Law School Faculty Publications

Before "Apprendi", prosecutors using recidivism as a club could, and did, regularly insist that defendants admit aggravating facts as part of the plea or face additional time. When the prosecutor's threats of added time were not persuasive and the proof of aggravating facts weak, the defendant prior to "Apprendi" could refuse to admit to the aggravating fact, and plead guilty only to the offense without the aggravating fact. Nothing about "Apprendi" gives additional leverage to the prosecutor in this situation. A defendant who, prior to "Apprendi", decided to risk trial rather than face the aggravated sentence will make the same …