Criminal Law Commons^™

Digital Expungement, Eldar Haber

Maryland Law Review

No abstract provided.

The History Of Misdemeanor Bail, Shima Baughman

Utah Law Faculty Scholarship

Bail is one of the most consequential decisions in criminal justice. The ability to secure bail often makes the difference between guilt and innocence, retaining employment and family obligations, and keeping a place to live. These implications affect those charged with felonies and this has been the focus for many years, but it affects even more so those charged with misdemeanors. A misdemeanor is theoretically a less serious crime with less serious consequences, but the effects on a defendant’s life are just as serious in the short term. There is a growing body of important empirical work that demonstrates the …

The Law Of Deception, Amit Pundik

Notre Dame Law Review Reflection

The purpose of this Essay is both descriptive and normative. On the descriptive level, this Essay details the Israeli jurisprudence and scholarly opinions on the issue of rape by deception in a way accessible to non-Hebrew readers, and briefly compares it with approaches taken elsewhere. On the normative level, the Essay seeks to show that the various attempts to answer the question of which characteristics can constitute deception all fail. In particular, it seeks to show that the Israeli approach is the least attractive, a conclusion that, it is hoped, may serve as a warning to reformers in other jurisdictions …

Lyrics For Lockups: Using Rap Lyrics To Prosecute In America, Briana Carter

Mercer Law Review

Bob Marley once sang, "I shot the sheriff, but I did not shoot the deputy." Yet, he never went to jail for shooting that sheriff (possibly because he did not shoot the deputy). Instead, this line became known as the starting phrase of one of his most popular songs. While it may make sense to some why Marley's lyrics were art and not a confession to shooting his hometown sheriff, in some states, an artist's lyrics can be used as evidence to prosecute. More specifically, states have differed on the admissibility of a rap artist's lyrics as evidence for prosecution. …

Disruptive Innovation In Criminal Defense: Demanding Corporate Criminal Trials, Ellen S. Podgor

Mercer Law Review

Perhaps the least sympathetic party in a corporate criminal matter is a corporate entity that has engaged in criminal conduct. If the corporation is large, subject to third party civil actions, and especially in an industry dependent upon a public perception of ethical behavior, a criminal indictment can destroy the entity, and few in society are likely to be concerned. To ameliorate the collateral consequences of an indictment, corporations are quick to cooperate with the government by signing onto non-prosecution, deferred prosecution, or plea agreements. The government secures a hefty fine and obtains from the entity the names and evidence …

Courts Have Gone Overboard In Applying The Maritime Drug Law Enforcement Act, Elaina Aquila

Fordham Law Review

The Maritime Drug Law Enforcement Act (MDLEA), enacted through Congress’s power to “define and punish . . . Felonies Committed on the high Seas,” prosecutes individuals for drug trafficking “on board” vessels. Individuals often raise jurisdictional defenses in U.S. courts when prosecuted under MDLEA, and scholarship in the area argues about whether the Constitution permits MDLEA to reach drug traffickers who are on the high seas. Recently, courts have begun using MDLEA to prosecute foreign nationals located in a foreign nation who are not on board a vessel as conspirators. However, no court has fully examined Congress’s authority to enact …

Regulating Search Warrant Execution Procedure For Stored Electronic Communications, Sara J. Dennis

Fordham Law Review

Electronic communication services, from email, to social media, tomessaging applications, have not only dramatically changed daily life but have also had a profound impact on criminal investigations and procedure.The often large volume of electronically stored information has led to a two-step process for search warrant execution, codified in Federal Criminal Procedure Rule 41. When conducting a search pursuant to Rule 41, law enforcement often retains both responsive items—materials that fall within the scope of the warrant—and nonresponsive materials—intermingled items that can be searched, but ultimately exceed the scope of the warrant. This possession of nonresponsive material creates a tension between …

The Right To Two Criminal Defense Lawyers, Bruce A. Green

Mercer Law Review

"What can courts, legislators, or criminal defense lawyers themselves do to seriously change criminal defense practice in a manner that significantly benefits criminal defendants and promotes justice?" That question was posed to the participants in an August 2017 SEALS discussion group and Mercer University School of Law's 2017 Symposium on "disruptive innovation in criminal defense." The implied premise of the question is that aspects of criminal defense should be fixed or can be improved-and in radical ways.

The question of disruptive innovation provides an occasion for identifying deficiencies and weaknesses in contemporary criminal defense practice, and because defense lawyers do …

A Penal Colony For Bad Lawyers, Bennett L. Gershman

Mercer Law Review

The concept of "disruptive innovation" is vague. Imagining the idea of lawyer "disruption" might conjure a scene from Al Pacino's aggressive role in the 1979 film And Justice for All 9 or embody the tradition of lawyers courageously representing unpopular clients, sometimes placing their lives at risk in courtrooms and on streets. But the panel, I discovered, was more interested in the concept of disruption as descriptive of radical departures from conventional lawyering and conventional discipline.

Recently, as I walked along the narrow cobblestoned streets of Prague--the same streets that Franz Kafka traversed while he was consumed by thoughts of …

Raising The Bar: Indigent Defense And The Right To A Partisan Lawyer, Steven Zeidman

Mercer Law Review

In Ake v. Oklahoma, the Supreme Court of the United States held that an indigent defendant is entitled to the assistance of an expert in cases where it is established that mental health is at issue. Thirty-two years later, in McWilliams v. Dunn, the Court finally addressed whether an expert must be independent of the prosecution. During oral argument, counsel for McWilliams argued that Ake required that the expert must be part of the defense team and on the defendant's side. Justice Gorsuch, in only his second week on the Court, stated dubiously that if that were the …

Errors In Misdemeanor Adjudication, Samuel R. Gross

Articles

Millions of defendants are convicted of misdemeanors in the United States each year but almost none obtain exonerations, primarily because ordinarily exoneration is far too costly and time consuming to pursue for anything less than years of imprisonment. The National Registry of Exonerations lists all known exonerations in the United States since 1989 — 2,145 cases, as of the end of 2017; only 85 are misdemeanors, 4%. In all but one of these misdemeanor exonerations the defendants were convicted of crimes that never happened; by comparison, more than three-quarters of felony exonerees were convicted of actual crimes that other people …

Dead Canaries In The Coal Mines: The Symbolic Assailant Revisited, Jeannine Bell

Georgia State University Law Review

The well-publicized deaths of several African-Americans—Tamir Rice, Philando Castile, and Alton Sterling among others—at the hands of police stem from tragic interactions predicated upon well-understood practices analyzed by police scholars since the 1950s. The symbolic assailant, a construct created by police scholar Jerome Skolnick in the mid-1960s to identify persons whose behavior and characteristics the police view as threatening, is especially relevant to contemporary policing. This Article explores the societal roots of the creation of a Black symbolic assailant in contemporary American policing.

The construction of African-American men as symbolic assailants is one of the most important factors characterizing police …

Participatory Defense: Humanizing The Accused And Ceding Control To The Client, Cynthia Godsoe

Mercer Law Review

This contribution to the Mercer University School of Law's 2017 Symposium on Disruptive Innovation in Criminal Defense discusses two interrelated defense strategies: humanizing the accused and contextualizing their actions in a society plagued with racism and poverty, and ceding substantial control of the defense strategy and legwork to the accused, and their family and friends. The first strategy should not be, but is, disruptive; in a just (and sane?) criminal legal system, this would be a regular part of the process. In our current vast system of social control, however, focusing on the people in the system as anything other …

The Politics Of Ethics, Laurie L. Levenson

Mercer Law Review

Prosecutors hate being told what to do. As "ministers of justice," they feel imbued with a moral compass that rarely, if ever, needs tweaking by outsiders. Their mission to protect society and the Constitution provides sufficient guidance. Being told how to be "ethical" is downright insulting for attorneys who already perceive themselves as wearing the white hat. Efforts to create ethical standards to guide a prosecutor's work may be perceived as little more than an unnecessary intrusion upon the prosecutor's independence and personal sense of justice. For some prosecutors, it is unwarranted meddling into the prosecution's business. As former Attorney …

Privileging Public Defense Research, Janet Moore, Ellen Yaroshefsky, Andrew L.B. Davies

Mercer Law Review

Empirical research on public defense is a new and rapidly growing field in which the quality of attorney-client communication is emerging as a top priority. For decades, law has lagged behind medicine and other professions in the empirical study of effective communication. The few studies of attorney-client communication focus mainly on civil cases. They also tend to rely on role-playing by non-lawyers or on post hoc inquiries about past experiences. Direct observation by researchers of real-time defendant-defender communication offers advantages over those approaches, but injecting researchers into the attorney-client dyad is in tension with legal and ethical precepts that protect …

Disrupting Victim Exploitation, David A. Singleton

Mercer Law Review

Violent-crime survivors have powerful stories to tell. Prosecutors use these stories to convict the accused and advocate for harsh sentences. Legislators use these narratives to pass punitive sentencing measures locking away the convicted for increasing periods of time.

Though prosecutors and legislators serve the entire community, many present themselves as speaking for victims, particularly those who call themselves "tough on crime." But do the interests of those who advocate for punitive, retributive justice always align with those of crime victims? And when their respective interests diverge, is it exploitative for prosecutors and legislators to suggest that they represent the interests …

Immigration Defense Waivers In Federal Criminal Plea Agreements, Donna Lee Elm, Susan R. Klein, Elissa C. Steglich

Mercer Law Review

Immigration policy is back on the American public's radar screen. The fields of immigration--a civil-law subject-and criminal law-a public-law subject-are quite distinct in both litigation practice and law school curricula. With exceptions along the U.S.--Mexican border, only in a small minority of federal cases do criminal attorneys need to know more than some very basic premises of immigration law. Aside from some very general information necessary for defense attorneys to provide adequate advisements according to Padilla v. Kentucky to their clients before entering guilty pleas and Continued Legal Education (CLE) training regarding what offenses have severe immigration consequences, the body …

The Bend At The End: What Lawyers Can Learn About Disruptions And Innovations In Criminal Defense Practice From Market Analysis, Donald F. Tibbs, Justin Hollinger

Mercer Law Review

In the world of stock market analysis, there is one certainty: the stock market is unpredictable. It acts with a will of its own, and despite experts' attempts at market forecast, no single person or machine can accurately predict the highs and lows of each day. Nonetheless, market experts extol new techniques; develop computer algorithms; and attach interesting monikers, such as Stochastics, MACD, and Bollinger Bands. But, in the end, they all succumb to the same rule: the unpredictability of the market suggests that no trading strategy is 100%, without fail, perfect every single trade.

That said, however, there is …

Rhode Island's Top Lawyer: Peter Kilmartin, Rwu Class Of 1998 5-2018, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Insane: James Holmes, Clark V. Arizona, And America's Insanity Defense, Eric Collins

Journal of Law and Health

Insanity is a legal term of art that changes definitions depending on the legal standard in American jurisprudence, which explains why a man who mental health professionals described as having an uncontrollable obsession with killing people can be found not insane and guilty. This Note addresses the current state of the Insanity Defense Reform Act of 1984 and its widespread implementation at the state level. Part II supplies background information on the history of the insanity defense and how it has transformed over the years in American jurisprudence. Part III provides an analysis of the of the insanity defense. Part …

Prisoner's Dilemma—Exhausted Without A Place Of Rest(Itution): Why The Prison Litigation Reform Act's Exhaustion Requirement Needs To Be Amended, Ryan Lefkowitz

The Scholar: St. Mary's Law Review on Race and Social Justice

The Prison Litigation Reform Act (PLRA) passed in 1996 in an effort to curb litigation from prisoners. The exhaustion requirement of the PLRA requires prisoners to fully exhaust any administrative remedies available to them before filing a lawsuit concerning any aspect of prison life. If a prisoner fails to do so, the lawsuit is subject to dismissal. The exhaustion requirement applies to all types of prisoner lawsuits, from claims filed for general prison conditions to excessive force and civil rights violations. It has been consistently and aggressively applied by the courts, blocking prisoners’ lawsuits from ever going to trial. Attempts …

Trapped In The Shackles Of America's Criminal Justice System, Shristi Devu

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Rethinking Bail Reform, Wendy R. Calaway, Jennifer M. Kinsley

University of Richmond Law Review

The issue of pretrial detention is part of a larger, national conversation on criminal justice reform. However, no single issue permeates the landscape of criminal justice like the treatment of pretrial defendants. The policies and practices around pretrial detention have contributed to the country’s mass incarceration numbers; created a crisis for local jail management; generated unsustainable budgets; and raised important questions about race, class, and the constitutional implications of incarcerating people because they are too poor to pay a money bond. Legal scholars have written about the issue, highlighting the inequities and constitutional difficulties with such a system. Much of …

Rapid Dna Testing And Virginia's Rape Kit Backlog: A Double-Edged Sword Masquerading As A Miracle, Or The Future Of Forensic Analysis?, Emma C. Greger

University of Richmond Law Review

While Rapid DNA technology has the potential to revolutionize every aspect of the criminal justice system, from arrest to the postconviction appeals process, there has been particular excitement centered around its potential to reduce the rape kit backlog.

Non-Contact Excessive Force By Police: Is That Really A Thing?, Michael J. Jacobsma

University of Richmond Law Review

When people hear the words “police” and “excessive force,” they usually associate those words with an unjustified assault and battery, or lethal force made against suspects by law enforcement officers during an arrest or investigation. When such acts occur, the victim of the excessive force has the right to pursue a civil action against the police officer pursuant to 42 U.S.C. § 1983 if committed by state or local police, or a Bivens action if committed by federal agents. But can a police officer be sued for excessive force without making any physical contact with the plaintiff? The answer to …

The #Metoo Movement: An Invitation For Feminist Critique Of Rape Crisis Framing, Jamie R. Abrams

University of Richmond Law Review

This article invites feminists to leverage the #MeToo Movement as a critical analytical tool to explore the longevity of the enduring rape crisis framing of victim services. Long before the #MeToo Movement, victim services in communities nationwide were framed around a crisis model. For nearly half a century, victims have visited rape crisis centers, called rape crisis hotlines, and mobilized rape crisis response teams to provide services and support. This enduring political and social framing around rape as a crisis is opaque, has prompted a political backlash, and risks distorting hard-fought feminist legal, social, and political battles. It has yielded …

Aspects Of The Jury In Criminal Proceedings, Hannah Akers

Senior Honors Theses

Although a trial by jury happens in only a fraction of the total criminal cases, the jury is one of the most intriguing facets of criminal proceedings. This thesis intends to delve into the various aspects of the criminal jury’s history, formulation, and processes. The different areas included are jury selection, elimination of bias, the jury’s role in criminal trials, their deliberations, determining a verdict, and potential problems with the system that is currently in place. All trials can be expected to have foundational court procedures, readings of the law, opening statements and closing arguments, and testimonies, but it ultimately …

Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing

Texas A&M Law Review

During the early stages of the Trump ICE age, America seemed to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Did we not label Barack Obama the “deporter-inchief?” Was it not George W. Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries, and did his ICE not commonly engage in armed raids at factories and other worksites? Are there not strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras? What about the fear and hysteria that seems …

Enforcing Statutory Maximums: How Federal Supervised Release Violates The Sixth Amendment Rights Defined In Apprendi V. New Jersey, Danny Zemel

University of Richmond Law Review

The Sixth Amendment commands that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Trial by a jury of one’s peers is a fundamental American legal right, existing in the earliest colonies before being codified in both Article III of the Constitution and the Sixth Amendment. The jury trial right derives from “the mass of the people,” ensuring that “no man can be condemned of life, or limb, or property, or reputation, without the concurrence of the …

Underdeveloped And Over-Sentenced: Why Eighteen- To Twenty-Year-Olds Should Be Exempt From Life Without Parole, Emily Powell

University of Richmond Law Review

Sentencing eighteen- to twenty-year-olds to life without parole should be considered cruel and unusual because it is disproportionate to this class of offenders’ culpability.