Criminal Law | Open Access Articles | Digital Commons Network™

Flying Over The Cuckoo's Nest: How The Mentally Ill Landed Into An Unconstitutional Punishment In South Carolina, Elle Klein

South Carolina Law Review

No abstract provided.

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To Have And To Hold: Factors To Consider Before Divorcing South Carolina From The Concealed Weapons Permit Requirement, Joseph D. Spate

South Carolina Law Review

No abstract provided.

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Virginia’S Interpretation Of Ake V. Oklahoma: A Hollow Right, Andrew Monaghan Higgins

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

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Keeping Gideon’S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren S. Lucas

Fordham Law Review

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel. The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court’s right to counsel jurisprudence in this area has remained stagnant. Critics of the …

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Does "Precrime" Mesh With The Ideals Of U.S. Justice?: Implications For The Future Of Predictive Policing, Jackson Polansky, Henry F. Fradella

Cardozo Public Law, Policy & Ethics Journal

Both the short story and film Minority Report are premised on a Precrime unit that relies on the psychic abilities of human mutants who can predict the commission of crimes before they occur. Advances in technology suggest that the science fiction depicted in Minority Report may one day become a reality. This paper summarizes the ways in which the criminal justice system currently derives crime predictions and extrapolates from these methods how technology might one day allow police to intervene before crimes are committed with great regularity and accuracy. The paper contemplates how an actual precrime system would struggle to …

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The Intellectually Disabled Witness And The Requirement To Promise To Tell The Truth, Jonas-Sébastien Beaudry

Dalhousie Law Journal

Mentally disabled victims of sexual crimes may be prevented from acting as witnesses in a criminal trial if their mental capacity is challenged. They face an important obstacle to access justice if the case against their alleged aggressor mostly relies on their testimony In R. v. D.A.I., in 2012, the Supreme Court of Canada revisited the Canada Evidence Act's requirement of promising to tell the truth and lowered the previously ambiguous threshold of cognitive capacities required to satisfy this requirement. The Evidence Act has been amended in 2015 to reflect the Court's decision. While apparently facilitating people with mental disabilities' …

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The Fourth Amendment, Csli Tracking, And The Mosaic Theory, Christian Bennardo

Fordham Law Review

This Note explores the CSLI debate by analyzing the circuit courts’ decisions, scholars’ disagreement with those decisions, and the alternative approaches offered to protect and evaluate CSLI records. This Note concludes that warrantless CSLI monitoring should be analyzed under the “mosaic theory” of the Fourth Amendment. In support, it argues that this theory best addresses the concerns with CSLI tracking and proposes a standard that courts may use to apply it.

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Collateral Consequences: Living In The Shadow Of A Conviction, Alex Bernas, Kim Bottenberg, Christian Carroll, Brett Clark, Reagan Eggert, Mackenzie Feeley, Alexa Gutierrez, Beth Hopkins, Kimberly Kenney, Jordan Mccroskey, Michelle Murphy, Sheldon Weiss, Brent Willman, Kelsey York

Honors Undergraduate Research

Over the course of fifteen weeks, fourteen students and two professors explored the Criminal Justice System and the immense challenges faced by citizens as they attempt to reintegrate into their communities after being incarcerated. Through the lens of Systems Thinking, a system pioneered and described by Peter Senge, we dissected seemingly unrelated experiences to identify behaviors and patterns that have been intrinsic in the Criminal Justice System since “tough on crime” policies emerged into the early 1970’s. During this time, criminal justice and public opinion moved from a more rehabilitative stance to one of punishment and punitive vengeance on those …

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Statewide Rules Of Criminal Procedure: A 50 State Review, Emily Dyer, Chelsea Stacey, Adrian Viesca

Nevada Law Journal Forum

Nevada is amongst the minority of states without statewide criminal procedure rules. Statewide rules are important because they promote fairness, regularity, and transparency regardless of where in the state a criminal case is being adjudicated and who it is being adjudicated in front of. This report intends to compare the varying states’ criminal procedure rules, to provide Nevada’s legal community with an awareness of how rules can be structured, what rules are included, and how rules interact with statutes and other court rules. If Nevada chooses to follow in the path of the forty-seven states and develop statewide criminal procedure …

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The "Csi Effect": Tv Crime Dramas' Impact On Justice, Michael Johnson

Cardozo Public Law, Policy & Ethics Journal

The note examines the "CSI Effect," a phenomenon where crime dramas like *CSI* influence jurors' expectations, potentially affecting trial outcomes. It explores whether this effect exists, its implications, and proposes solutions to mitigate its impact on the criminal justice system.

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Fairness Beyond The Adversary System: Procedural Justice Norms For Legal Negotiation, Rebecca Holland-Blumoff

Fordham Law Review

Part I of this Article provides background on procedural justice and its relationship to negotiation. Part II then discusses the results of a recent empirical study that I conducted on the factors that help shape perceptions of procedural justice in the negotiation setting. Lastly, Part III explores the strategic and ethical implications of these results for the practicing lawyer in settlement negotiations.

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Mens Rea And Methamphetamine: High Time For A Modern Doctrine Acknowledging The Neuroscience Of Addiction, Meredith Cusick

Fordham Law Review

Neuroscience research reveals that drug addiction results in catastrophic damage to the brain resulting in cognitive and behavioral deficits. Methamphetamine addiction is of particular interest to criminal law because it causes extensive neural destruction and is associated with impulsive behavior, violent crime, and psychosis. Furthermore, research has revealed important distinctions between the effects of acute intoxication and addiction. These findings have implications for the broader doctrine of mens rea and, specifically, the intoxication doctrines. This Note argues for the adoption of an addiction doctrine that acknowledges the effect of addiction on mens rea that is distinct from doctrines of intoxication.

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The Doxing Dilemma: Seeking A Remedy For The Malicious Publication Of Personal Information, Julia M. Macallister

Fordham Law Review

In recent years, malevolent actors have seized upon a new tool to harass, silence, threaten, and injure people online: doxing—the malicious publication of personal identifying information like a home address. Although doxing is an online tool, it causes concrete and serious harm to victims by moving harassment from the Internet to the physical world. Congress and state legislatures have begun to address different forms of cyberharassment. However, no effective and consistent legal remedy for doxing currently exists. This Note examines and critiques current federal and state schemes, and it ultimately proposes that lower federal courts should adopt a new intent …

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Fairness Beyond The Adversary System: Procedural Justice Norms For Legal Negotiation, Rebecca Holland-Blumoff

Fordham Law Review

Part I of this Article provides background on procedural justice and its relationship to negotiation. Part II then discusses the results of a recent empirical study that I conducted on the factors that help shape perceptions of procedural justice in the negotiation setting. Lastly, Part III explores the strategic and ethical implications of these results for the practicing lawyer in settlement negotiations.

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Keeping Gideon’S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren S. Lucas

Fordham Law Review

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel. The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court’s right to counsel jurisprudence in this area has remained stagnant. Critics of the …

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The Fourth Amendment, Csli Tracking, And The Mosaic Theory, Christian Bennardo

Fordham Law Review

This Note explores the CSLI debate by analyzing the circuit courts’ decisions, scholars’ disagreement with those decisions, and the alternative approaches offered to protect and evaluate CSLI records. This Note concludes that warrantless CSLI monitoring should be analyzed under the “mosaic theory” of the Fourth Amendment. In support, it argues that this theory best addresses the concerns with CSLI tracking and proposes a standard that courts may use to apply it.

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Mens Rea And Methamphetamine: High Time For A Modern Doctrine Acknowledging The Neuroscience Of Addiction, Meredith Cusick

Fordham Law Review

Neuroscience research reveals that drug addiction results in catastrophic damage to the brain resulting in cognitive and behavioral deficits. Methamphetamine addiction is of particular interest to criminal law because it causes extensive neural destruction and is associated with impulsive behavior, violent crime, and psychosis. Furthermore, research has revealed important distinctions between the effects of acute intoxication and addiction. These findings have implications for the broader doctrine of mens rea and, specifically, the intoxication doctrines. This Note argues for the adoption of an addiction doctrine that acknowledges the effect of addiction on mens rea that is distinct from doctrines of intoxication.

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The Doxing Dilemma: Seeking A Remedy For The Malicious Publication Of Personal Information, Julia M. Macallister

Fordham Law Review

In recent years, malevolent actors have seized upon a new tool to harass, silence, threaten, and injure people online: doxing—the malicious publication of personal identifying information like a home address. Although doxing is an online tool, it causes concrete and serious harm to victims by moving harassment from the Internet to the physical world. Congress and state legislatures have begun to address different forms of cyberharassment. However, no effective and consistent legal remedy for doxing currently exists. This Note examines and critiques current federal and state schemes, and it ultimately proposes that lower federal courts should adopt a new intent …

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Searching Places Unknown: Law Enforcement Jurisdiction On The Dark Web, Ahmed Ghappour

Faculty Scholarship

The use of hacking tools by law enforcement to pursue criminal suspects who have anonymized their communications on the dark web presents a looming flashpoint between criminal procedure and international law. Criminal actors who use the dark web (for instance, to commit crimes or to evade authorities) obscure digital footprints left behind with third parties, rendering existing surveillance methods obsolete. In response, law enforcement has implemented hacking techniques that deploy surveillance software over the Internet to directly access and control criminals’ devices. The practical reality of the underlying technologies makes it inevitable that foreign-located computers will be subject to remote …

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Twenty Reasons To Publish In Dignity, Donna M. Hughes

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

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I Am Not Law Enforcement! Why The Special Needs Exception To The Fourth Amendment Should Apply To Caseworkers Investigating Allegations Of Child Abuse, Lauren Kobrick

Cardozo Law Review

The note examines the application of the Fourth Amendment's special needs doctrine in child abuse investigations, advocating for the adoption of a primary purpose test to determine the doctrine's applicability. It critiques the inconsistent approaches across circuits and proposes this test to clarify when warrantless searches and seizures by caseworkers are constitutional, ensuring a balance between child protection and Fourth Amendment protections.

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Gateway Crimes, Murat C. Mungan

Faculty Scholarship

Many who argue against the legalization of marijuana suggest that while its consumption may not be very harmful, marijuana indirectly causes significant social harm by acting as a “gateway drug,” a drug whose consumption facilitates the use of other, more harmful drugs. This Article presents a theory of “gateway crimes,” which, perhaps counterintuitively, implies that there are social gains to decriminalizing offenses that cause minor harms, including marijuana-related offenses. A typical gateway crime is an act which is punished lightly, but because it is designated as a crime, being convicted for committing it leads one to be severely stigmatized. People …

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Renteria-Novoa (Guillermo) V. State, 133 Nev. Adv. Op. 11 (March 30, 2017), Briana Martinez

Nevada Supreme Court Summaries

The district court abused its discretion in declining to appoint postonviction counsel to appellant. Appointment of counsel under NRS § 34.750(1) is not necessarily dependent upon whether a pro se petitioner raised claims that have merit or warrant an evidentiary hearing. Language barriers may deprive appellants of a meaningful opportunity to present his or her claims, and should therefore be taken into consideration.

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Crime And The Law: Sociologico-Legal Observations, Wenceslas J. Wagner

The Catholic Lawyer

No abstract provided.

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Of Spies, Saboteurs, And Enemy Accomplices: History’S Lessons For The Constitutionality Of Wartime Military Tribunals, Martin S. Lederman

Georgetown Law Faculty Publications and Other Works

Congress has recently authorized military commissions to try enemies not only for violations of the international law of war, but also for domestic-law offenses, such as providing material support to terrorism and conspiring to commit law-of-war offenses. Moreover, President Trump has indicated support for further military trials, including trials against U.S. citizens. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution prescribes. The constitutionality of such an abrogation of Article III’s criminal trial guarantees has been debated during many of the nation’s wars without clear resolution, and the constitutional question is now at …

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Made In America: The Prison Wage Gap, Jordan Henn-Terhune

Community of Scholars Day—Posters

My poster will be framed around my research paper regarding the prison wage gap, and will offer statistics, excerpts from my work, and visuals such as graphs and pictures. Through my presentation, the audience will learn about what the label “Made in America,” means, the role mass incarceration plays in the oppression of those labeled “criminal,” and the importance of fair wages and education in American prisons to reverse the cycle of poverty, oppression, and legal discrimination.

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Global Comparison Of Incarceration: Punitive Versus Rehabilitative Frameworks, Rachel Digangi, Joshua Baldwin

Community of Scholars Day—Posters

Inspired by an internship at Billerica House of Corrections, I have found interest in conducting research on the different frameworks used for incarceration across the world. I am focusing on comparing the recidivism rates between rehabilitative and punitive prison systems. Especially in countries that have decriminalized drugs, the treatment component has been enhanced tremendously. Their success in rehabilitation forces us to question if our system is truly a broken system; reinforcing our concept of stereotypical “criminal behavior.”

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Motion For Leave To File Amicus Curiae Brief And Brief For The National Association For Public Defense And Kentucky Association Of Criminal Defense Lawyers As Amici Curiae In Support Of Petitioner, Sneed V. Burress (U.S. March 24, 2017) (No. 16-8047)., Janet Moore

Faculty Articles and Other Publications

No abstract provided.

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Upholding Citizens’ Privacy In The Use Of Stingray Technology: Is New York Behind?, Samantha Hazen

Pace Law Review

This Comment will argue that New York should follow the federal agencies’ and states’ leads by imposing a warrant requirement supported by probable cause on local and state agencies that wish to use Stingray technology in their investigations. The first section will explore Stingray technology and how it works. The second section will frame the issue and describe New York’s current standard. The third section will discuss the judicial response to the issue and how New York courts seem to place the burden of upholding privacy on the citizen, instead of the government. The third section will also discuss a …

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The Negative Ramifications Of Hate Crime Legislation: It’S Time To Reevaluate Whether Hate Crime Laws Are Beneficial To Society, Briana Alongi

Pace Law Review

Supporters of hate crime legislation suggest that the primary reason for the codification of hate crime laws is “to send a strong message of tolerance and equality, signaling to all members of society that hatred and prejudice on the basis of identity will be punished with extra severity.” However, hate crime laws may actually be accomplishing the opposite effect of tolerance and equality because they encourage U.S. citizens to view themselves, not as members of our society, but as members of a protected group. The enactment of hate crime legislation at the federal and state levels has led to unintended …

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Full-Text Articles in Criminal Law

Flying Over The Cuckoo's Nest: How The Mentally Ill Landed Into An Unconstitutional Punishment In South Carolina, Elle Klein

South Carolina Law Review

To Have And To Hold: Factors To Consider Before Divorcing South Carolina From The Concealed Weapons Permit Requirement, Joseph D. Spate

South Carolina Law Review

Virginia’S Interpretation Of Ake V. Oklahoma: A Hollow Right, Andrew Monaghan Higgins

Washington and Lee Journal of Civil Rights and Social Justice

Keeping Gideon’S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren S. Lucas

Fordham Law Review

Does "Precrime" Mesh With The Ideals Of U.S. Justice?: Implications For The Future Of Predictive Policing, Jackson Polansky, Henry F. Fradella

Cardozo Public Law, Policy & Ethics Journal

The Intellectually Disabled Witness And The Requirement To Promise To Tell The Truth, Jonas-Sébastien Beaudry

Dalhousie Law Journal

The Fourth Amendment, Csli Tracking, And The Mosaic Theory, Christian Bennardo

Fordham Law Review

Collateral Consequences: Living In The Shadow Of A Conviction, Alex Bernas, Kim Bottenberg, Christian Carroll, Brett Clark, Reagan Eggert, Mackenzie Feeley, Alexa Gutierrez, Beth Hopkins, Kimberly Kenney, Jordan Mccroskey, Michelle Murphy, Sheldon Weiss, Brent Willman, Kelsey York

Honors Undergraduate Research

Statewide Rules Of Criminal Procedure: A 50 State Review, Emily Dyer, Chelsea Stacey, Adrian Viesca

Nevada Law Journal Forum

The "Csi Effect": Tv Crime Dramas' Impact On Justice, Michael Johnson

Cardozo Public Law, Policy & Ethics Journal

Fairness Beyond The Adversary System: Procedural Justice Norms For Legal Negotiation, Rebecca Holland-Blumoff

Fordham Law Review

Mens Rea And Methamphetamine: High Time For A Modern Doctrine Acknowledging The Neuroscience Of Addiction, Meredith Cusick

Fordham Law Review

The Doxing Dilemma: Seeking A Remedy For The Malicious Publication Of Personal Information, Julia M. Macallister

Fordham Law Review

Fairness Beyond The Adversary System: Procedural Justice Norms For Legal Negotiation, Rebecca Holland-Blumoff

Fordham Law Review

Keeping Gideon’S Promise: Using Equal Protection To Address The Denial Of Counsel In Misdemeanor Cases, Brandon Buskey, Lauren S. Lucas

Fordham Law Review

The Fourth Amendment, Csli Tracking, And The Mosaic Theory, Christian Bennardo

Fordham Law Review

Mens Rea And Methamphetamine: High Time For A Modern Doctrine Acknowledging The Neuroscience Of Addiction, Meredith Cusick

Fordham Law Review

The Doxing Dilemma: Seeking A Remedy For The Malicious Publication Of Personal Information, Julia M. Macallister

Fordham Law Review

Searching Places Unknown: Law Enforcement Jurisdiction On The Dark Web, Ahmed Ghappour

Faculty Scholarship

Twenty Reasons To Publish In Dignity, Donna M. Hughes

Dignity: A Journal of Analysis of Exploitation and Violence

I Am Not Law Enforcement! Why The Special Needs Exception To The Fourth Amendment Should Apply To Caseworkers Investigating Allegations Of Child Abuse, Lauren Kobrick

Cardozo Law Review

Gateway Crimes, Murat C. Mungan

Faculty Scholarship

Renteria-Novoa (Guillermo) V. State, 133 Nev. Adv. Op. 11 (March 30, 2017), Briana Martinez

Nevada Supreme Court Summaries

Crime And The Law: Sociologico-Legal Observations, Wenceslas J. Wagner

The Catholic Lawyer

Of Spies, Saboteurs, And Enemy Accomplices: History’S Lessons For The Constitutionality Of Wartime Military Tribunals, Martin S. Lederman

Georgetown Law Faculty Publications and Other Works

Made In America: The Prison Wage Gap, Jordan Henn-Terhune

Community of Scholars Day—Posters

Global Comparison Of Incarceration: Punitive Versus Rehabilitative Frameworks, Rachel Digangi, Joshua Baldwin

Community of Scholars Day—Posters

Motion For Leave To File Amicus Curiae Brief And Brief For The National Association For Public Defense And Kentucky Association Of Criminal Defense Lawyers As Amici Curiae In Support Of Petitioner, Sneed V. Burress (U.S. March 24, 2017) (No. 16-8047)., Janet Moore

Faculty Articles and Other Publications

Upholding Citizens’ Privacy In The Use Of Stingray Technology: Is New York Behind?, Samantha Hazen

Pace Law Review

The Negative Ramifications Of Hate Crime Legislation: It’S Time To Reevaluate Whether Hate Crime Laws Are Beneficial To Society, Briana Alongi

Pace Law Review