Criminal Law Commons^™

"They Say Where There’S Smoke, There's Fire; But Sometimes It's A Self-Induced Fire": Understanding Claims Of Unequal Treatment Among Mexican-American Officers In The Los Angeles Police Department, Roberto Gallardo

Qualitative Criminology (QC)

"Serving as an ethnographic case study and utilizing qualitative interviews, this study focuses on Mexican-American police officers and their perceptions of claims of unequal treatment based on race/ethnicity from other officers. The study finds that officers ideologically stand firmly against racism and discrimination. When non-overt claims of unequal treatment based on race/ethnicity are encountered, officers develop negative perceptions of claiming officers. Officers revert to individualized, merit-based, and other colorblind justifications to interpret and dismiss the claims. It is argued that given the lack of the overt nature of most claims today, facilitated by the most common occupational context in which …

You In Or Out?: Reflecting On Positionality In Gang Research, Sou Lee, John Leverso

Qualitative Criminology (QC)

"Positionality is an important consideration when carrying out research. An effective tool for understanding this process is reflexivity—a continual dialogue that explores the interplay between our identities and how data is collected, analyzed, and interpreted. These reflexive accounts have been used in various disciplines, including criminal justice and criminology. In advancing this important practice, we offer insight into our experiences studying a hard-to-reach population: gangs. Specifically, we document how our insider and outsider identities, as well as the space between facilitated access, were used strategically and informed our interpretations of data. We conclude by encouraging reflexivity within criminology broadly and …

The Dark Plea: One Of The Most Coercive Abuses Of Power Permitted In The Criminal Justice System, Michael P. Donnelly

Et Cetera

Most prosecutions in our criminal justice system are resolved by defendants entering ostensibly knowing and intelligent guilty pleas—often following negotiations with the state—before trial. But during my time as a trial judge, I encountered a different type of guilty plea, procured by the state when an already convicted offender sought to clear his or her name through an application for a new trial based on newly discovered evidence. I believe the “Dark Pleas” secured in these circumstances are one of the greatest abuses of power permitted in the criminal justice process.

This article sets down in writing a speech I …

Here's The Kind Of Justice Trump, Hunter Biden Receive, Stephen Henderson

Other Faculty Publications

Donald Trump. Guilty. Hunter Biden. Underway. This summer, we can’t avoid high-profile criminal prosecutions, nor talking heads telling us every which way to think about them. Among that cacophony, it is hard to be heard, or even to hear oneself think. So I write to a particular group of Americans, those whose reaction is this: “Enough.” ...

Expanding The Role Of Victim-Offender Mediation In The Criminal Justice System: Mediating Cases Of Involuntary Manslaughter, Doyeon Kim

Pepperdine Dispute Resolution Law Journal

Involuntary manslaughter is distinguishable from other types of murder by the perpetrator’s lack of intent to kill. This lack of intent suggests that restorative justice programs, specifically victim-offender mediation, may be a better alternative compared to the traditional adversarial criminal justice system because offenders can express their remorse and victims can receive closure through a facilitated dialogue. Limiting the scope of remedies in criminal proceedings to incarceration has led to serious financial and societal ramifications, as well as harmful psychological and emotional repercussions by failing to address the underlying lasting impacts of crime on victims, offenders, loved ones, and the …

Law School News: Professor Tara I. Allen Announced As Federal Public Defender 6-5-2024, Helga Melgar

Life of the Law School (1993- )

No abstract provided.

A Survey Of Slavery & The Slave Trade Law, Cardozo Law Institute In Holocaust And Human Rights (Clihhr), Benjamin B. Ferencz Human Rights And Atrocity Prevention Clinic

CLIHHR Reports & Policy Submissions

This comprehensive report, compiled by the Benjamin B. Ferencz Human Rights and Atrocity Prevention (HRAP) Clinic at the Benjamin N. Cardozo School of Law from 2020 to 2024, surveys domestic slavery and slave trade laws across States Parties to the Rome Statute. Law students conducted comparative legal research examining how national legislation defines and criminalizes slavery, the slave trade, sexual slavery, and related practices such as trafficking and forced labor. Organized by region, the report presents constitutional and penal code provisions, assesses compliance with international humanitarian law, and highlights legal trends and gaps. It serves as a vital resource for …

An Updated Account On The Similar Fact Rule, Siyuan Chen

Singapore Law Journal (Lexicon)

The number of local decisions on the similar fact rule has increased quite significantly in the last few years. However, fundamental questions, ranging from the foundational (such as the existence or operation of any residual judicial discretion to exclude relevant evidence) to the discrete (such as whether the rule works differently in civil proceedings as compared to criminal proceedings, and how the rule operates vis-à-vis related rules of evidence), continue to be answered in rather different, arguably irreconcilable ways by the courts. This article analyses some of the recent key decisions in the light of established precedents and proposes that …

The Myth Of Slavery Abolition, Jocelyn Getgen Kestenbaum

Articles

In many countries today, slavery and the slave trade continue with impunity. International human rights law prohibits both abuses, but states are rarely held accountable and people who are enslaved or slave traded rarely receive redress. This Article offers a novel account of why international human rights law advocacy neglects slavery and the slave trade. Specifically, this Article demonstrates that the abolition of the Transatlantic and East African slave trades was achieved through a legal framework that marginalized the human rights of enslaved persons while consolidating empire. In the wake of World War II, prohibitions on slavery and the slave …

Redistributing Justice, Benjamin Levin, Kate Levine

Articles

This Essay surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite progressives’ increasingly prevalent critiques of criminal law, there is hardly a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas— often areas in which defendants are imagined as powerful and victims as particularly vulnerable.

In this Essay, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system …

Can Too Much Clarity Cause Confusion? A Case Study Of Mccalop V. State, Sutton M. Eggena

Mercer Law Review

In criminal trials, few elements wield as much influence over the outcome as expert testimony. Expert testimony serves as the bridge between complex subject matter and the understanding of lay jurors, often occupying a pivotal position in the pursuit of justice. Indeed, expert testimony can be the lynchpin on which a jury’s verdict turns. Picture a courtroom filled with jurors, each presumed to lack a deep understanding of the intricate dynamics of domestic abuse and the profound effects of battered person syndrome on individuals trapped in violent relationships. In pursuit of justice, these jurors lean on a singular source—an expert …

Proprietors Beware: Recent Changes In Negligent Security Cases Involving Third-Party Criminal Acts And The State Of The Law Moving Forward After The Supreme Court Of Georgia’S Most Recent Decision In Georgia Cvs V. Carmichael, Blake Williamson

Mercer Law Review

The burgeoning surge in criminal activity within the United States has precipitated a corresponding increase in legal actions aimed at ascertaining the liability of business proprietors for crimes that transpire on their premises. Although the legal and factual questions surrounding the attribution of liability for the criminal acts of third parties often prove intricate, the crux of the matter remains consistent with that encountered in other premises liability actions—namely, did the proprietor possess superior knowledge of the danger that injured the plaintiff?

Just Me, Myself, And I: Georgia Trial Courts May Consider Pro Se Motions Filed By Represented Criminal Defendants, Mckayla A. Doss

Mercer Law Review

For decades, Georgia’s trial courts have applied the absolute rule that pro se motions filed by represented (or presumably represented) criminal defendants were a legal nullity. In essence, hybrid representation was not permitted—legal representation precluded criminal defendants from acting as “co-counsel” or filing their own pro se motions.The application of this absolute rule substantially affected the time-sensitive period that follows a criminal conviction, as defendants in Georgia have a limited period of time to file a notice of appeal or a motion for new trial before the window of direct appeal closes. Failure to file these motions results in the …

The Needless Search For A Founding-Era "Hearsay" Definition, Jeffrey Bellin

University of Michigan Journal of Law Reform

Modern Confrontation Clause doctrine permits only unconfronted “out-of-court statements that would have been admissible in a criminal case at the time of the founding.” To operationalize this concept, the Supreme Court identifies “testimonial hearsay” as the Clause’s primary concern. Its opinions regularly dive into the historical record to refine what counts as “testimonial” but ignore that record in defining “hearsay.” This omission cannot last. Cases in the lower courts, and one on the Court’s recent docket, concern testimonial but (arguably) non-hearsay statements. And while confrontation jurisprudence is supposed to be tied to founding-era evidence law, the “hearsay” definition, casually referenced …

Criminal Legal Reform In New Hampshire: One Law Professor's Activism, Albert E. Scherr

The University of New Hampshire Law Review

Criminal legal reform is a perpetual work in progress. The system itself is, at best, maddeningly imperfect. It too often fails to produce anything close to justice. Structural problems afflict the system in a way that incarcerates too many people, particularly people of color. For example, over the last thirty years, the Innocence Project has demonstrated imperfections in the system caused by faulty eyewitness identification procedures by ineffective assistance of counsel, by prosecutorial misconduct, by shoddy forensic practices and by police behavior that produced false confessions.

That the United States has well over fifty-one independent criminal legal systems frustrates efforts …

Principles Of Prosecutor Lenience, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

Once "the Darth Vader of academic writing,"' American prosecutors are making a comeback. In recent years, "progressive prosecutors" have leveraged prosecutors' one true superpower-lenience-to "reform the criminal justice system from the inside." There is so much scholarly enthusiasm for this project that the existing commentary can be summarized as offering a one-word principle to govern considerations of prosecutorial lenience: yes. But there is surely more to say. American criminal law covers a broad array of offenses with vast differences in punitiveness across jurisdictions and courts. And even harsh critics of the system's severity tend to pivot when it comes to …

All Roads Lead To Rome: Combating Impunity For Perpetration Of Slave Trade And Slavery Crimes, Jocelyn Getgen Kestenbaum

Articles

The Republic of Sierra Leone has proposed amendments to the Rome Statute of the International Criminal Court (ICC) to include, inter alia, provisions for the slave trade as a crime against humanity and has recommended that the General Assembly include the slave trade as an enumerated crime in the Draft articles on Prevention and Punishment of Crimes Against Humanity (CAH) (Draft articles). This declaration came nearly five years after Cardozo’s Benjamin B Ferencz Human Rights and Atrocity Prevention Clinic, on behalf of slavery crimes expert Patricia Viseur Sellers, sent commentaries to the United Nations International Law Commission (ILC) to revise …

Confronting Algorithms: Conscience Catching In The Criminal Trial And Beyond, Sherman J. Clark

University of Michigan Journal of Law Reform

Using the question of how to treat algorithmic evidence under the Confrontation Clause as an entry point, I argue that the use of AI in ethically salient situations presents a risk. It may cause us to avoid confronting our own responsibility. This matters because facing up to what we do, including what we delegate, can help us grow and thrive. Bearing responsibility can help us nurture vital capacities, including forms of empathy, honesty, and dignity. In the language of ethics, these are eudaimonist virtues—traits and capacities that can help us live well and fully. We should thus find ways of …

The Criminalization Of Care: Health And The Home, Teneille R. Brown

Utah Law Review

In this issue of the Utah Law Review, our readers will hear from a variety of perspectives on how the criminalization of care is impacting our communities. Noa Ben-Asher and Margot Pollans describe how “regret” has been exploited by conservative groups in campaigns to paternalistically ban abortion and genderaffirming care. They lay out how the parallel legal strategies between bans on abortion and gender-affirming care are hardly coincidental. Rather, there is a coordination effort to pervert informed consent doctrine to promote “traditional family values,” and to police reductive heteronormative visions of identity.

Caught In The Middle: Providing Obstetric Care When Pregnant Women Have Complications, Ellen Clayton, Luke Gatta

Utah Law Review

Physicians in abortion-restrictive states who care for pregnant women who become ill are facing new challenges as they try to meet their patients’ needs while avoiding criminal prosecution on the one hand or civil litigation if there is a bad outcome, especially when care is affected by the threat of vague statutes, on the other. All these legal actions will occur in the public eye. Unfortunately, the proposed changes to HIPAA do not protect against criminal prosecution when the medical exception for the woman’s health is at issue.

Two changes are needed. The first is amending the state statutes to …