Criminal Law Commons^™

Eyewitness Identification And The Problematics Of Blackstonian Reform Of The Criminal Law, Lawrence Rosenthal

Journal of Criminal Law and Criminology

A substantial number of wrongful convictions are attributable to inaccurate identifications of perpetrators, stemming from the difficulties that eyewitnesses can experience in accurately perceiving and later recalling faces. Many have argued that courts should employ prophylactic rules to prevent the admission of unreliable identification evidence. Yet, most jurisdictions continue to follow the deferential approach to the admission of eyewitness identification evidence taken by the United States Supreme Court in Manson v. Brathwaite. Commentators have universally condemned this state of affairs.

This Article offers a departure from the existing commentary by taking seriously the possibility that courts have good reason …

A Material Change To Brady: Rethinking Brady V. Maryland, Materiality, And Criminal Discovery, Riley E. Clafton

Journal of Criminal Law and Criminology

How we think about the trial process, and the assumptions and beliefs we bring to bear on that process, shape how litigation is structured. This Comment demonstrates why materiality, and the theory of juridical proof informing that standard of materiality, must be redefined for Brady v. Maryland doctrine and criminal process. First, the Comment delineates the theory of explanationism—the revolutionary paradigm shift unfolding in the theory of legal proof. Explanationism conceptualizes juridical proof as a process in which the factfinder weighs the competing explanations offered by the parties against the evidence and the applicable burden of proof. Applying explanationism to …

Retroactive Legality: Marijuana Convictions And Restorative Justice In An Era Of Criminal Justice Reform, Deborah M. Ahrens

Journal of Criminal Law and Criminology

The last decade has seen the beginning of a new era in United States criminal justice policy, one characterized by a waning commitment to over-criminalization, mass incarceration, and a punitive War on Drugs as well as a growing regret for the consequences of our prior policies. One of the central questions raised by this shifting paradigm is what to do about the millions of individuals punished, marked, and shunned as a result of policies we now regret. This issue is particularly pointed for marijuana convictions, as the coexistence of strict regimes of collateral consequences for drug convictions and the active …

Prosecutorial Declination Statements, Jessica A. Roth

Journal of Criminal Law and Criminology

This Article examines how prosecutors convey to various audiences their decisions not to charge in discrete cases. Although prosecutors regularly issue public statements about their declinations—and anecdotal evidence suggests that declination statements are on the rise—there is an absence of literature discussing the interests that such statements serve, the risks that they pose, and how such statements are consistent with the prosecutorial function. Prosecutors also operate in this space without clear ground rules set by law, policies, or professional standards. This Article attempts to fill that void. First, it theorizes the interests potentially advanced by such statements—characterized as signaling, accountability, …

“You May Be Down And Out, But You Ain’T Beaten”: Collective Bargaining For Incarcerated Workers, Keith Armstrong

Journal of Criminal Law and Criminology

The Supreme Court’s sweeping 1977 decision in Jones v. North Carolina Prisoners’ Labor Union determined that a state’s reasonable interest in maintaining security in a correctional facility outweighed prisoners’ freedom of association in seeking to unionize. This decision had a chilling effect on a burgeoning prisoners’ union movement which had risen to prominence over the course of the 1970s. Since Jones, prison labor has increased and changed form: the Prison Industry Enhancement (PIE) Act of 1979 authorized private firms to sell prisoner-made goods on the open market. At the same time, prisoners continue to work in more traditional jobs …

Stepping Into The “Wrong” Neighborhood: A Critique Of The People V. Albillar’S Expansion Of California Penal Code Section 186.22(A) And A Call To Reexamine The Treatment Of Gang Affiliation, Samuel Dipietro

Journal of Criminal Law and Criminology

Since 1988, the number of California criminal street gangs has increased from 600 to 6,442, an increase of roughly 973%. This dramatic increase in gang participation occurred despite the California Legislature adopting increasingly harsher anti-gang laws. One such law, adopted in 1988, is the Street Terrorism and Enforcement Prevention Act (STEP Act), which contains a substantive offense for being a member of a criminal street gang and an enhancement offense for committing gang-related crimes. In 2010, the California Supreme Court, in the case of People v. Albillar, interpreted Section 186.22(a) of the STEP Act to apply to any felonious …

Can You See And Hear Us, Ms. Smith?: Protecting Defendants’ Right To Effective Assistance Of Counsel When Using Audio And Video Conferencing In Judicial Proceedings, Ivaylo Valchev

Journal of Criminal Law and Criminology

As new technology is developed and older technology upgraded, people find new efficiency and flexibility in virtually every aspect of their personal and professional lives. The judiciary and broader legal profession have found the influx of technology just as useful as other professions. However, as new technology continues to reshape the practice of law, we must be cognizant of its effect on judicial proceedings and vigilant in protecting basic Constitutional guarantees, especially for criminal defendants. While the twenty-first-century courtroom is wired to bring efficiency and flexibility to the practice of law, the very core of the judicial process is not …

Progressive Prosecution In A Pandemic, Chad Flanders, Stephen Galoob

Journal of Criminal Law and Criminology

No abstract provided.

Expanding The Reach Of Progressive Prosecution, Jeffrey Bellin

Journal of Criminal Law and Criminology

No abstract provided.

When Prosecutors Politick: Progressive Law Enforcers Then And Now, Bruce A. Green, Rebecca Roiphe

Journal of Criminal Law and Criminology

A new and recognizable group of reform-minded prosecutors has assumed the mantle of progressive prosecution. The term is hard to define in part because its adherents embrace a diverse set of policies and priorities. In comparing the contemporary movement with Progressive Era prosecutors, this Article has two related goals. First, it seeks to better define progressive prosecution. Second, it uses a historical comparison to draw some lessons for the current movement. Both groups of prosecutors were elected on a wave of popular support. Unlike today’s mainstream prosecutors who tend to campaign and labor in relative obscurity, these two sets of …

Race, Reform, & Progressive Prosecution, Daniel Fryer

Journal of Criminal Law and Criminology

The progressive prosecution movement is one of the most recent efforts to reform the United States criminal justice system. In this Article, I analyze two assumptions that appear to be guiding this movement. The first is that prosecutors have unilateral power to change the system. The second is that those who bear the biggest burden of our current system—black Americans—would be the primary beneficiaries of the decarceration proposals advanced by progressive prosecutors. I argue that each of these assumptions is misguided. A successful criminal justice reform movement must recognize the contingent power of prosecutors and actively seek to advance racial …

Rural Spaces, Communities Of Color, And The Progressive Prosecutor, Maybell Romero

Journal of Criminal Law and Criminology

The concept of the progressive prosecutor has captured the attention of many newspapers, media outlets, district attorney candidates, legal scholars, and the public at large. Many with sincere interests in reforming the criminal legal system have excitedly traced the success of candidates styling themselves as progressive prosecutors.

Although located throughout the country, these progressive prosecutors share a geographic commonality—they generally hail from large cities or urban metroplexes. Examples include Wesley Bell in St. Louis, Rachael Rollins in Boston, Larry Krasner in Philadelphia, and Kim Foxx in Chicago. Meanwhile, in the rural reaches of the country, disproportionate contact between police and …

Prosecutors And Their State And Local Polities, Ronald F. Wright

Journal of Criminal Law and Criminology

Prosecutors routinely decline to file charges in individual cases; sometimes they also announce general policies about declinations that apply prospectively to entire categories of cases. The legitimacy of these categorical declination policies is in dispute. Current accounts of declinations rely on arguments about the traditional activities of prosecutors and the distinction between executive and legislative functions in constitutional separation of powers doctrine. This Article argues that chief prosecutors in state court systems hold competing loyalties to statewide voters and local voters. These duties to state and local polities should also influence the declination policies that a prosecutor adopts.

Duties to …

My Brother's Keeper: Using The Intelligence Toolbox On Domestic Terrorism, Brandon Carmack

Mitchell Hamline Law Review

No abstract provided.

Minnesota's Rape Shield Law: A Sword For Prosecutors; A Blow To Defendants' Constitutional Rights, Christina Zauhar, Trent Jonas

Mitchell Hamline Law Review

No abstract provided.

Limiting A Driver’S Limited Right To Counsel In Dwi Proceedings: State V. Rosenbush, 931 N.W.2d 91 (Minn. 2019), Lisa Perunovich

Mitchell Hamline Law Review

No abstract provided.

Immersive Virtual Reality: Minnesota Legislature’S Opportunity To Protect Children From Sexual Exploitation By Enacting A Well-Defined Criminal Statute, Justine Wagner

Mitchell Hamline Law Review

No abstract provided.

Progressive Prosecution: It’S Here, But Now What?, Hao Quang Nguyen

Mitchell Hamline Law Review

No abstract provided.

The Application Of Mercy: Equal Treatment For All Youth Who Commit Sex Offenses, Jennica Janssen, David Dematteo

Mitchell Hamline Law Review

No abstract provided.

Constitutional Law: Courts Should Not Forfeit The Barker Factors In Civil Forfeiture—Olson V. One 1999 Lexus Mn License Plate No. 851ldv Vin: Jt6hf10u6x0079461, 924 N.W.2d 594 (Minn. 2019)., Kathryn Simunic

Mitchell Hamline Law Review

No abstract provided.

Criminal Law: The Dangers Of Incomplete Statutory Interpretation And The Unfortunate Equal Protection Implications That Follow– Heilman V. Courtney, 926 N.W.2d 387 (Minn. 2019), Claire Gutknecht

Mitchell Hamline Law Review

No abstract provided.

Willfulness In A Post-Robare World: Evidence Of Subjective Intent, Not Negligence Conduct, Is Needed To Show Willful Violations Of Securities Laws, Kevin Aguirre

Fordham Journal of Corporate & Financial Law

The D.C. Circuit's holding in Robare Group, Ltd., v. SEC, potentially marks the end of at least twenty years of permissive judicial interpretation of the term "willful," as found in various provisions of securities laws-including the Investment Advisers Act of 1940. Traditionally, willful violations of securities laws only required evidence that defendants were aware of their conduct, not that they knew that their conduct was unlawful. This low burden of proof operates in practice as a negligence standard. However, Robare makes a key distinction between evidence of negligent conduct and "subjectively intentional" violations under section 207 of the Advisers Act …

The Case For Accountability & Transparency: How Corporate Asset Forfeiture Creates A Conflict Of Interest, Tiffany J. Klinger

Fordham Journal of Corporate & Financial Law

Asset forfeiture is a tool used by law enforcement to seize property or profits related to criminal activity. Due to the public's growing distain of asset forfeiture, congressional and state reform has attempted to curtail the use of civil asset forfeiture over the past twenty years. However, little attention has been given where asset forfeiture is used against corporations. This Note sheds light as to how asset forfeiture is used against the organizational defendant and makes the following observations: First, asset forfeiture is a powerful tool in corporate criminal proceedings; however, forfeiture lacks the procedural restraints that are placed on …

An Examination Of How The Canadian Military's Legal System Responds To Sexual Assault, Elaine Craig

Dalhousie Law Journal

Although the Canadian military has been conducting sexual assault trials for over twenty years, there has been no academic study of them and no external review of them. This review of the military’s sexual assault cases (the first of its kind) yields several important findings. First, the conviction rate for the offence of sexual assault by courts martial is dramatically lower than the rate in Canada’s civilian criminal courts. The difference between acquittal rates in sexual assault cases in these two systems appears to be even larger. Since Operation Honour was launched in 2015 only one soldier has been convicted …

The Bad, The Ugly, And The Horrible: What I Learned About Humanity By Doing Prison Research, Adelina Iftene

Dalhousie Law Journal

Every Canadian academic conducting research with humans must submit an ethics application with their university’s Research Ethics Board. One of the key questions in that application inquired into the level of vulnerability of the interviewees. Filling in that question, I had to check nearly every box: the interviewees were incarcerated, old, under-educated, poor, Indigenous or other racial minorities, and likely had mental and physical disabilities. However, it was not until I met John that I understood what all those boxes actually meant. They were signalling that I was entering a universe of extreme marginalization—the universe of the forgotten. I learned …

The Opioid Crisis As Health Crisis, Not Criminal Crisis: Implications For The Criminal Justice System, Haley Hrymak

Dalhousie Law Journal

The criminal justice system’s response to the opioid crisis exacerbates risks faced by people using drugs and is harmful to public health. Interviews with 11 interviewees including defence counsel, probation officers, and public interest lawyers and advocates revealed three key challenges of working in the criminal justice system during the opioid crisis. First, there is a lack of understanding of addiction within the criminal justice system. Second, as a result of the opioid crisis, fentanyl trafficking sentencing decisions in British Columbia emphasize the need for lengthier prison sentences, which disproportionately affects people who use substances. Third, the conditions on bail …

Committing To Justice: The Case For Impact Of Race And Culture Assessments In Sentencing African Canadian Offenders, Maria C. Dugas

Dalhousie Law Journal

Canadian judges have made notable, although too limited, strides to recognize the unique conditions of Black Canadians in sentencing processes and decisionmaking. The use of Impact of Race and Culture Assessments in sentencing people of African descent has gradually gained popularity since they were first introduced in R v “X.” These reports provide the court with the necessary information about the effect of systemic anti-Black racism on people of African descent and how the experience of racism has informed the circumstances of the offence, the offender, and how it might inform the offender’s experience of the carceral state. This paper …

Invisible Prisons, M. Eve Hanan

Scholarly Works

Modern punishment theory is based on an inadequate conceptualization of the severity of incarceration. While the severity of a prison sentence is measured solely in terms of the length of time, the actual experience of imprisonment is often more punishing and more destructive than a simple loss of liberty. Yet, lawmakers and judges evince a surprising lack of institutional interest in understanding the experience of imprisonment and applying this knowledge to sentencing. This lack of official attention to how prison is experienced by incarcerated people is one of the drivers of mass incarceration.

This Article is the first scholarly work …

The Dangers Of Disclosure: How Hiv Laws Harm Domestic Violence Survivors, Courtney Cross

Scholarly Works

People living with HIV or AIDS must decide whether, how, and when to disclose their positive status. State laws play an outsized role in this highly personal calculus. Partner notification laws require that current and former sexual partners of individuals newly diagnosed with HIV be informed of their potential exposure to the disease. Meanwhile, people who fail to disclose their positive status prior to engaging in sexual acts-even acts that carry low to no risk of infection-can be prosecuted and incarcerated for exposing their partners to HIV. Although both partner notification laws and criminal HIV exposure laws were ostensibly created …

Academic And Practitioner Perspectives On The Ilc Draft Articles On Prevention And Punishment Of Crimes Against Humanity As Adopted On Second Reading, Charles C. Jalloh, Leila N. Sadat

Articles

No abstract provided.