Berkeley Journal of Criminal Law最新文献

{"title":"27 Years of Truth-in-Evidence: The Expectations and Consequences of Proposition 8's Most Controversial Provision","authors":"D. Friedland","doi":"10.15779/Z38QC95","DOIUrl":"https://doi.org/10.15779/Z38QC95","url":null,"abstract":"INTRODUCTION Twenty-seven years ago, nearly three million California residents, 1 disillusioned by what they perceived as an unrelenting crime rate and a state judiciary that often neglected the rights of crime victims, headed to the polls and cast their vote in support of Proposition 8, a constitutional amendment creating a \"victims' bill of rights.\"2 The initiative delineated a series of rights giving crime victims a stronger voice within the criminal justice system, and chief among them was the \"Right to Truth-in-Evidence,\" which provided that with few exceptions, \"relevant evidence shall not be excluded in any criminal proceeding.\" 3 From the moment it was incorporated within Proposition 8, it engendered a mass of speculation. Proponents and opponents, and scholars and","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126081608","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Imputed Liability for Supervising Prosecutors: Applying the Military Doctrine of Command Responsibility to Reduce Prosecutorial Misconduct","authors":"G. Corn, Adam M. Gershowitz","doi":"10.15779/Z385G8C","DOIUrl":"https://doi.org/10.15779/Z385G8C","url":null,"abstract":"Lawyers often refer to criminal litigation as a war between competing adversaries. Yet, one of the central tenets of the law of war – the doctrine of command responsibility – has not been applied to criminal litigation. Under the doctrine of command responsibility, military commanders are held responsible for the misconduct of their subordinates that they knew or should have known would occur. The purpose of the command responsibility doctrine is to ensure that supervisors develop an atmosphere of compliance by training subordinates to avoid misconduct. This article applies the doctrine of command responsibility to civilian prosecutors holding supervisory positions. We argue that instances of prosecutorial misconduct can be reduced by imputing liability to supervising prosecutors who fail to create a culture of ethical compliance and therefore should have known that misconduct could occur.","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"193 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117205030","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Setting Bail for Public Safety","authors":"Curtis E. A. Karnow","doi":"10.15779/Z38W33C","DOIUrl":"https://doi.org/10.15779/Z38W33C","url":null,"abstract":"Bail hearings affect the liberty of most criminal defendants. While a fraction of arrestees are sentenced to custody after either a guilty plea or a trial, virtually all defendants have their custodial status determined at a bail hearing at the commencement of their cases. At this hearing, the judge determines whether the defendant, presumed innocent, should be kept in custody pending trial or, instead, released on bail. The hearing is brief, allows the introduction of evidence that would be inadmissible at trial, and is conducted according to the discretion of the trial judge.2 It usually concludes with the judge setting bail at a certain dollar amount, and the defendant being released when he posts that amount. The process of setting an appropriate bail amount has historically required both state and federal judges to consider a variety of factors, including the risk that the defendant will flee, the severity of the offense, and the defendant's prior criminal record. In California, although each of these factors is relevant, the Legislature has mandated that none is more important than the potential danger posed to the public by the defendant's release. This note examines the difficulties posed to California judges as they struggle to follow this statutory command and set bail at an amount that","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"87 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133925811","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Cite-Checker's Guide to Sexual Dangerousness","authors":"F. Zimring, Chrysanthi S. Leon","doi":"10.15779/Z38MK9D","DOIUrl":"https://doi.org/10.15779/Z38MK9D","url":null,"abstract":"In June of 2006, the UC Davis Law Review published an article by Professor Ruby Andrew arguing for rejecting any differentiation between persons convicted of intra-familial child sex abuse and those convicted of child sex abuse where the victim is a stranger or non-related acquaintance. Professor Andrew set out to persuade her readers that fathers and stepfathers who sexually abuse relatives present the same level of both moral culpability and danger to the community as non-familial child abusers, and that their related victims are best protected through rigidly punitive control policies. We agree with Andrew that familial victims are no less deserving than the victims of strangers. But it does not follow that the best way to help children victimized by relatives is by mandating imprisonment, or requiring the public humiliation of the family created by community notification. While we disagree with the general conclusion of Andrew's article, the reason for this note is a more specific concern about questions of fact in legal scholarship. On a question at the heart of the penal response to sex offenders - the relative dangers of sex recidivism for incest and non-incest child abusers - Andrew's article leaves a demonstrably false impression about current empirical research and, wittingly or unwittingly, ignores scores of published researched studies involving many thousands of subjects in several countries. What law review readers do not know can hurt them. We would hope that a peer-review process in which experts were consulted would have caught Andrew's false claims. But short of that, law students or lay people who checked her citations using the universally-accessible search engine provided by Google could have easily caught this problem.","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132786078","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Rhetoric of Self-Defense","authors":"J. Kim","doi":"10.15779/Z381K84","DOIUrl":"https://doi.org/10.15779/Z381K84","url":null,"abstract":"The rhetoric of self-defense is a powerful instrument in the hands of legal actors to shape our understanding of justified violence in society. This rhetoric is based not in the legal definition of self-defense but rather in the paradigmatic situation of deadly response to deadly attack, which offers useful guidance in interpreting the law's required elements. However, the paradigm also tends to embrace claims of morality and right that threaten to expand self-defense beyond recognition to consider inappropriate values such as vengeance and punishment. In this Article, the author argues that self-defense should be viewed not only as a moral but also as a core political concept - one that inspires the formation of civil society and the state under social contract theory. According to this view, self-defense and the criminal law share a common aim: to prevent harm and preserve life for peaceable coexistence. This common aim, which is more particularly expressed through political theory rather than moral philosophy, forms the substantive justification for self-defense in the criminal law.","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125012738","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Caleb Was Right: Pretrial Decisions Determine Mostly Everything","authors":"C. McCoy","doi":"10.15779/Z38D324","DOIUrl":"https://doi.org/10.15779/Z38D324","url":null,"abstract":"Caleb Foote taught his students many things, and he taught them well. His criminal procedure class was basically a political science course. He looked at the questions of whether and how to apply the criminal sanction from the viewpoint of interest-group politics; he was primarily concerned that everyone should understand that the Constitution was designed to protect unpopular minorities (in the Madisonian sense) from being crushed. To him, examples of unpopular minorities were vagrants (today called \"the homeless\"), poor people, people of color, political dissidents but most comprehensively, those finding themselves on the receiving end of the nasty business of criminal prosecution. Perhaps he was so concerned and committed to social justice for people accused of crimes because he himself had been the object of prosecution as a conscientious objector. Perhaps his passion came from his Quaker ideals. Perhaps he was just contrarian by nature. Whatever its source, Caleb's verve in analyzing how the criminal justice system was used to control unpopular people led to a focus on the earliest stages of prosecution because, as he once told me, \"That's where the greatest number of people get thwacked.\" I suppose he was really thinking of a different verb, but he was polite, and I liked the comic-book sound of it. As one of the teaching assistants for his undergraduate course in criminal law and procedure, I had to lead the small seminar groups that discussed the concepts Caleb had presented in the class's large lectures. The clever undergraduates were convinced that problems of crime and justice could be solved if the police could arrest a lot of people but good judges would later sort out any problems. \"No,\" Caleb directed his teaching assistants, \"tell them that the problem is arrests themselves in other words, overcriminalization. Tell them that at the lower levels of crime seriousness, judges don't really care much about guilt or innocence, but about taking a swipe at these jerks who are committing anti-social acts-if not the act actually charged, then some other act recorded in a lengthy rap sheet and moving the caseload","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114921394","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Stuck in the Thicket: Struggling with Interpretation and Application of California's Anti-Gang STEP Act","authors":"Martin Baker","doi":"10.15779/Z385K73","DOIUrl":"https://doi.org/10.15779/Z385K73","url":null,"abstract":"STUCK IN THE THICKET: Struggling with Interpretation and Application of California’s Anti-Gang STEP Act by Martin Baker","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116635929","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Gender and the Social Costs of Sentencing: An Analysis of Sentences Imposed on Male and Female Offenders in Three U.S. District Courts","authors":"A. Stacey, C. Spohn","doi":"10.15779/Z38F32G","DOIUrl":"https://doi.org/10.15779/Z38F32G","url":null,"abstract":"Disparity in the treatment of offenders involved in the criminal justice system has been the topic of a substantial amount of research over the past thirty years. Perhaps the most compelling evidence of disparity is found in the demographics of the inmate population in state and federal prisons throughout the United States. Most of those incarcerated in our nation's prisons are men, and the incarceration rates for blacks and Hispanics are substantially higher than the rate for whites.2 These disparities in rates of imprisonment, which have persisted for more than three decades, have led researchers to focus on the sentencing stage of the criminal justice process. 3 They also have led","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"216 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124254203","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Self-Incrimination's Covert Federalism","authors":"P. Westen","doi":"10.15779/Z38JS75","DOIUrl":"https://doi.org/10.15779/Z38JS75","url":null,"abstract":"The Privilege against Self-Incrimination is widely lauded by courts as an \"ancient,\" \"venerable,\" \"noble\" principle of justice, a \"precious\" privilege of free men, and a \"mainstay of the American adversary system\" - from which it is natural to assume that the privilege enjoys special, perhaps even absolute protection. It is also natural to assume that once the U.S. Supreme Court interprets the privilege to prevent the state from using a witness's testimony against him, Congress may not disregard the interpretation by authorizing the state to use such testimony against him. Indeed, the Court seemed to support that view in Dickerson v. United States (2000), holding that Congress may not lawfully replace Court-imposed Miranda warnings with a provision that authorizes the federal government to use any statement against an arrestee that is \"voluntary.\" I shall argue that the foregoing assumptions are both mistaken and that both mistakes derive from a failure to appreciate the significance of Murphy v. Waterfront Commission 1964). The decision in Murphy, which the Court recently reaffirmed in United States v. Balsys (1998), demonstrates that the Court is willing to resolve Fifth Amendment cases by weighing individual interests against governmental interests. Murphy also suggests that the federal courts have authority to effectuate the testimonial interests that underlie the privilege by adopting rules of federal common law or constitutional common law that Congress, in turn, has constitutional authority to modify. Commentators fail to appreciate Murphy's significance because they focus on only one of the two things that Murphy does. They focus on its interpretation of the privilege to protect witnesses before one government within the United States (whether state or federal) from being compelled to give testimony that may incriminate them in the courts of other governments within the United States (whether state or federal). The true significance of Murphy, however, lies in a covert and companion ruling in Murphy that serves as a predicate for Murphy's interpretation of the privilege - an interpretation that, in the end, is relatively prosaic, given Murphy's companion ruling. Murphy's companion ruling has passed largely unnoticed, but it enabled the Murphy Court to interpret the privilege in the way it did. The companion ruling is a federal or constitutional common law rule of use immunity: it is a rule to the effect that each and every government within the United States has authority to grant any witness a certain measure of immunity in the courts of every other government within the United States, simply by ordering the witness to testify over the witness's claim that testifying will lead to self-incrimination in the courts of those other governments. Murphy's Exclusionary Rule reveals something significant about the scope of the privilege against self-incrimination with respect to judicial witnesses. It reveals that the Fifth and Fourteenth Amendme","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114291861","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"They Can Take Your Body But Not Your Soul--Or So You Thought the Third Circuit's Application of the Turner Standard in Prisoners' Free Exercise Cases","authors":"T. Kao","doi":"10.15779/Z38KG8H","DOIUrl":"https://doi.org/10.15779/Z38KG8H","url":null,"abstract":"","PeriodicalId":386851,"journal":{"name":"Berkeley Journal of Criminal Law","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127971077","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}