Criminal Law Commons^™

Forfeiture Of The Right To Counsel: A Doctrine Unhinged From The Constitution, Stephen A. Gerst

Cleveland State Law Review

The author contends that the doctrine of forfeiture of the right to assistance of counsel as a sanction for misconduct by a defendant towards the court or his counsel has no constitutional support in the principles that have defined the Sixth Amendment, is arbitrary in its application within the judicial system, and has become a refuge for courts, which have inadequately complied with established principles to protect fundamental rights.

Evaluating Children's Competency To Testify: Developing A Rational Method To Assess A Young Child's Capacity To Offer Reliable Testimony In Cases Alleging Child Sex Abuse , Laurie Shanks

Cleveland State Law Review

This Article discusses the testimony of young children, the inadequacy of the traditional hearing used to determine the competency of such children to testify, and the ways in which the hearing might be changed to make it a meaningful process for determining the ability of a child to give reliable testimony.

Monetary Recoveries For State Crime Victims , Jeffrey A. Parness, Edmund Laube, Laura Lee

Cleveland State Law Review

In this Article, we explore the constitutional, statutory, and common law foundations of the three recovery avenues available to crime victims. We also explore the federal-state and interstate differences in these avenues, along with the associated barriers to recovery. Finally, we propose better ways in which to facilitate state crime victim recoveries.

The Order-Maintenance Agenda As Land Use Policy, Nicole Stelle Garnett

Journal Articles

Debates about the broken windows hypothesis focus almost exclusively on whether the order-maintenance agenda represents wise criminal law policy — specifically on whether, when, and at what cost, order-maintenance policing techniques reduce serious crime. These questions are important, but incomplete. This Essay, which was solicited for a symposium on urban-development policy, considers potential benefits of order-maintenance policies other than crime-reduction, especially reducing the fear of crime. The Broken Windows essay itself urged that attention to disorder was important not just because disorder was a precursor to more serious crime, but also because disorder undermined residents’ sense of security. The later …

Responses To The Ten Questions, Mary Ellen O'Connell

Journal Articles

The Journal of the National Security Forum (JNSF) Board of Editors posed ten questions on national security to a group of national-security law experts. Professor Mary Ellen O’Connell’s answers to the ten questions are presented.

Ensuring The Ethical Representation Of Clients In The Face Of Excessive Caseloads, Peter A. Joy

Scholarship@WashULaw

The right of one charged with [a] crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impar-tial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with [a] crime has to face his accusers without a lawyer to assist him.

You can't give me too many cases, too many clients, …

Constructing Systemic Safeguards Against Informant Perjury, Peter A. Joy

Scholarship@WashULaw

Reliance on an informant's testimony as the primary basis for charging and convicting the accused is fraught with problems. While the hypothetical explicitly addresses the ethical dilemmas defense counsel faces when her client is trading false testimony in exchange for a reduced charge and shorter sentence, the hypothetical also implicitly illustrates the inadequacies of our criminal justice system's current handling of testimony from cooperating witnesses.

The focus on the ethical, and perhaps moral, obligations of Lawyer representing a potentially perjurious Client begs larger questions. Are there safeguards the prosecutor's office could employ to ensure that the trial prosecutor, who is …

Killing, Letting Die, And The Case For Mildly Punishing Bad Samaritanism, Ken Levy

Georgia Law Review

For over a century now, American scholars(among others) have been debating the merits of "bad-Samaritan" laws-laws punishing people for failing to attempt "easy rescues." Unfortunately, the opponents of bad-Samaritan laws have mostly prevailed. In the United States, the "no-duty-to-rescue" rule dominates. Only four states even have bad-Samaritan laws, and these laws impose only the most minimal punishment-either sub-$500 fines or short-term imprisonment. This Article argues that this situation needs to be remedied. Every state should criminalize bad Samaritanism. For, first, criminalization is required by the supreme value that we place on protecting human life, a value that motivates laws against …

Prosecuting Political Defendants, Anthony S. Barkow, Beth George

Georgia Law Review

Prosecutors are obligated to enforce the law without bias or prejudice. Prosecutors will face cases, however, where a prosecution has political overtones due to the substance of the underlying crime or the identity of the defendant. Maintaining public confidence in the impartiality of such prosecutions is vital to protecting the public's trust in the criminal justice system. This Article explores three recent federal cases where the defendant's identity added a political element to the prosecution. It then examines how the Department of Justice regulates prosecutors' release of information to the public, including its charging policy and its interactions with the …

Waiving Good-Bye To Inconsistency: Factual Basis Challenges To Guilty Pleas In Federal Courts, William T. Stone Jr

Georgia Law Review

Rule 11(b)(3) of the Federal Rules of CriminalProcedure
requires courts to determine that criminal defendants'
guilty pleas have a factual basis. Once a district court
accepts a guilty plea, appellate courts diverge in their
willingness to review challenges to the sufficiency of the
plea's factual basis. Some federal circuits hold that a
factual basis challenge is waived by the guilty plea. Other
jurisdictions will review a defendant's factual basis
challenge on appeal. Despite the lack of clarity on this
point, the Supreme Court has not yet provided guidance
and the federal circuit courts have not offered a great deal
of …

Meditaciones Postmodernas Sobre El Castigo: Acerca De Los Límites De La Razón Y De Las Virtudes De La Aleatoriedad (Una Polémica Y Un Manifiesto Para El Siglo Xxi), Bernard E. Harcourt

Faculty Scholarship

In Spanish
Durante la Modernidad, el discurso sobre la pena ha girado circularmente en torno a tres grupos de interrogantes. El primero, surgido de la propia Ilustración, preguntaba: ¿En qué basa el soberano su derecho de penar? Nietzsche con mayor determinación, pero también otros, argumentaron que la propia pregunta implicaba ya su respuesta. Con el nacimiento de las ciencias sociales, este escepticismo hizo surgir un segundo conjunto de interrogantes: ¿Cuál es, entonces, la verdadera función de la pena? ¿Qué es lo que hacemos cuando penamos? Una serie de críticas ulteriores – de metanarrativas, funcionalistas o de objetividad científica – debilitaron …

The Contradictions Of Juvenile Crime & Punishment, Jeffery Fagan

Faculty Scholarship

Juvenile incarceration in the United States is, at first glance, distinctly different from its adult counterpart. While some juvenile facilities retain the iconic aesthetic of adult incarceration – orange jumpsuits, large cellblocks, uniformed guards, barbed wire, and similar heavy security measures – others have trappings and atmospherics more reminiscent of boarding schools, therapeutic communities, or small college campuses. These compact, benign settings avoid the physical stigmata of institutional life and accord some autonomy of movement and intimacy in relations with staff. They also give primacy to developmentally appropriate and therapeutic interventions.

Social Welfare And Fairness In Juvenile Crime Regulation, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

The question of how lawmakers should respond to developmental differences between adolescents and adults in formulating juvenile crime policy has been the subject of debate for a generation. A theme of the punitive law reforms that dismantled the traditional juvenile justice system in the 1980s and 1990s was that adolescents were not different from adults in any way that was relevant to criminal punishment – or at least that any differences were trumped by the demands of public safety. But this view has been challenged in recent years; scholars and courts have recognized that adolescents, due to their developmental immaturity, …

The Contradictions Of Juvenile Crime & Punishment, Jeffrey Fagan

Faculty Scholarship

This essay explores the contradictions and puzzles of modern juvenile justice, and illustrates the enduring power of the child-saving philosophy of the juvenile court in an era of punitiveness toward offenders both young and old. The exponential growth in incarceration in the U.S. since the 1970s has been more restrained for juveniles than adults, even in the face of a youth violence epidemic that lasted for nearly a decade. Rhetoric has grown harsher in the wake of moral panics about youth crime, juvenile codes now express the language of retribution and incapacitation, yet the growth in incarceration of juveniles was …

The Role Of The Family In Criminal Law, Gerard V. Bradley

Journal Articles

Privilege or Punish: Criminal Justice and the Challenge of Family Ties. Dan Markel, Jennifer M. Collins & Ethan J. Leib. Oxford University Press, 2009.

The authors of Privilege or Punish (PoP) pose two questions, one descriptive and the other morally evaluative. "First, how does the criminal justice system in this country approach the issue of family status? Second, how should family status be recognized, if at all, in a criminal justice system situated within a liberal democracy committed to egalitarian principles of nondiscrimination?"

Taking Prevention Seriously: Developing A Comprehensive Response To Child Trafficking And Sexual Exploitation, Jonathan Todres

Vanderbilt Journal of Transnational Law

Millions of children are victims of trafficking and commercial sexual exploitation each year. Governments have responded with a range of measures, focusing primarily on seeking to prosecute perpetrators of these abuses and offering assistance to select victims. These efforts, while important, have done little to reduce the incidence of these forms of child exploitation. This Article asserts that a central reason why efforts to date may not be as effective as hoped is that governments have not oriented their approaches properly toward prioritizing prevention--the ultimate goal--and addressing these problems in a comprehensive and systematic manner. Instead, efforts to date have …

Superior Responsibility Of Civilians For International Crimes Committed In Civilian Settings, Yael Ronen

Vanderbilt Journal of Transnational Law

This Article examines the notion of superior responsibility of civilians for international crimes committed in civilian settings. The doctrine of superior responsibility grew out of the military doctrine of command responsibility, and its evolution is informed by this origin. Jurisprudence and academic writers emphasize that the doctrine is applicable to civilian superiors of military or paramilitary organizations, but there has never been a detailed analysis of the doctrine's relevance and applicability in civilian settings. The Article argues that the claim that customary international law extends the doctrine of superior responsibility to civilians, let alone in civilian settings, is inaccurate. In …

Probability, Individualization, And Uniqueness In Forensic Science Evidence: Listening To The Academies, David H. Kaye

Faculty Scholarship

Day in and day out, criminalists testify to positive, uniquely specific identifications of fingerprints, bullets, handwriting, and other trace evidence. A committee of the National Academy of Sciences, building on the writing of academic commentators, has called for sweeping changes in the presentation and production of evidence of identification. These include some form of circumscribed and standardized testimony. But the Academy report is short on the specifics of the testimony that would be legally and professionally allowable. This essay outlines possible types of testimony that might harmonize the testimony of criminalists with the actual state of forensic science. It does …

Protecting Crime Victims In Federal Appellate Courts: The Need To Broadly Construe The Crime Victims' Rights Act's Mandamus Provisions, Paul Cassell

Utah Law Faculty Scholarship

In 2004, Congress passed the Crime Victims’ Rights Act to dramatically reshape the federal criminal justice system and ensure that crime victims are treated fairly in the criminal process. An important feature of the CVRA is its provisions allowing victims to enforce their rights not only in trial courts, but also in appellate courts. Among the enforcement provisions is one guaranteeing a crime victim expedited access to appellate review. The CVRA provides that if the district court denies any relief sought by a crime victim, the victim “may petition the court of appeals for a writ of mandamus. . . …

Accused’S Right To Document Translation..., John K. Sawyer

War Crimes Memoranda

Specifically addressing what the rights are of the accused to the translation of documents (in his or her own language and/or in the language of his or her counsel) and the concomitant obligations of the parties. Also, the issues were examined with reference to the 20 February 2009 Pre-Trial Chamber decision in Khieu Samphan’s appeal.