Showing papers in "Journal of Criminal Law & Criminology in 1993"

A contemporary look at the effects of rape law reform - how far have we really come

Abstract: La reforme de la legislation federale sur le viol a ete le resultat d'une alliance fragile entre les groupes feministes, les groupes defendant les droits de la victime et les organisations centrees sur les themes plus generaux de «la loi et l'ordre» Les AA observent que frequemment les violeurs ne sont pas arretes pour leur crime parce que de nombreuses victimes sont reticentes pour denoncer l'infraction Ils notent que les revisions de la loi ont entraine des resultats variables Il n'y a pas eu un effet substantiel sur le comportement de la victime ou les pratiques du systeme de justice penale A cet egard les AA concluent que ces observations sont en accord avec d'autres recherches concernant l'impact de la reforme de la legislation sur le viol Cependant les donnees des annees 1970 a 1990 montrent un leger accroissement dans la proportion des femmes qui denoncent le viol dont elles ont ete victimes Ils observent egalement que ces delinquants sont davantage envoyes en prison

Junk Science: The Criminal Cases

Abstract: Peter Huber, a prominent critic of the federal rules of evidence, coined the phrase “junk science” to describe judicial acceptance of unreliable expert testimony. Despite the highly visible efforts to reform the rules governing experts in the civil arena, the “junk science” debate has all but ignored criminal prosecutions. The chapter explores the junk science debate to criminal prosecutions. It examines three issues raised by this debate: the necessity for use of a stringent standard when determining the admissibility of novel scientific evidence, the need to secure the services of unbiased experts, and the desirability of liberal pretrial discovery of expert testimony. The Court in Barefoot justified its lax evidentiary standard, in part, by relying on the adversary system to “uncover, recognize, and take due account of [the] shortcomings” of expert testimony. The trial court refused, and although insanity was the only contested issue at trial, no psychiatrist testified on this issue.

Have You No Sense of Decency

Abstract: This essay on forensic DNA litigation focuses on the practical problems which arise when two dissimilar disciplines-science and law-collide in court. My experience as defense counsel in four cases' focusing on DNA evidence,2 as a consultant in dozens more, and as an observer of the manner in which scientific evidence, and DNA evidence in particular, is processed by the courts, compels the conclusion that practitioners need to scrutinize evidence more carefully before making case-dispositive decisions. Further, our society needs a comprehensive regulatory scheme to protect defendants, crime victims, and the rest of us from shoddy laboratory practices which can generate unreliable results. Not only does DNA evidence often go unchallenged and unregulated; this article will describe how, when a serious challenge is made, some prosecutors and the FBI also have actively and improperly interfered with the scientific debate over the limitations and reliability of DNA evidence. Finally, this article will expose the hypocrisy of prosecutors who relish DNA testing as a tool to convict, but bristle when such evidence is offered by an unjustly convicted prisoner to prove his innocence.

Can the Exclusionary Rule Be Saved

Abstract: In an arrangement of two or more furnaces, for the continuous production of carbon black from an oil, having a common oil supply and carbon black recovery means, each furnace having an oil feed pipe terminating in an injection nozzle having a ring of diverging apertures, the oil feed to each furnace oil feed pipe is periodically replaced by oxygen-containing gas so as to burn off deposited carbon, one or two furnaces being thus treated at a particular time while the remainder continue to produce carbon black. The flow of oxygen-containing gas in each oil feed pipe may continue for 15-60 minutes. During carbon black production the oil, which may be preheated, may be injected into the furnace at a temperature above 500 DEG C., e.g. 725-775 DEG C. As shown, air and oil are supplied alternately from lines 38 and 36 respectively to a pre-combustion chamber 14 via an oil feed pipe 18 and nozzle 22 having a ring of diverging apertures 24. Simultaneously air is injected as an annular stream around the nozzle via inlet 26 and a combustible mixture of air and fuel gas is injected tangentially into chamber 14 from one or more burners 16. Reaction to produce carbon black is continued in chamber 15. During burning off of deposited carbon the rates of injection of annular air and tangential mixture of air and fuel gas may be different from those during carbon black production. Fig. 3 (not shown) illustrates an arrangement of five furnaces.

The Court's Two Model Approach to the Fourth Amendment: Carpe Diem

Abstract: A traveller, lost in a strange city, can occasionally make three wrong turns and find himself on, if not necessarily the right road, at least one that is going in the right direction. Similarly, the United States Supreme Court, lost in the strange city of Fourth Amendment law,' has taken three wrong turns, but may yet find itself on a road that, if not "right," in terms of the Court's precedents, is logically defensible and will lead to a much more straightforward rule for police. However, like the traveller, if the Court fails to recognize what it has done, it will be doomed to continue its wayward course. The three wrong turns that the Court has taken are United States v. Robinson2 (a warrantless search incident to any custodial arrest may be a "full body search," including a search of any containers in the suspect's possession), New York v. Belton3 (a warrantless search incident to arrest of an occupant of an automobile extends to all containers in the passenger compartment), and California v. Acevedo4

Legal Criticisms of DNA Typing: Where's the Beef

Abstract: DNA typing has dramatically altered the criminal legal process.' Hearings to determine the admissibility of DNA typing are often lengthy, some lasting several weeks or months.2 The legal discovery process has scrutinized virtually every aspect of the procedures that testing laboratories use to evaluate DNA evidence. These measures are typically government funded, and significant expenditures of effort, time and money are involved in litigating the admissibility of DNA evidence. One would think, therefore, that DNA typing evidence has routinely been used to convict defendants where a conviction would have been impossible without the evidence. However, DNA evidence merely provides corroborative evidence in all but a handful of cases.

Foreword: The Criminal-Civil Distinction and Dangerous Blameless Offenders

Abstract: Our legal system distinguishes criminal law from civil law, and criminal commitment from civil commitment. We speak of a "crime," rather than a "violation" or a "breach," and "punishment," rather than "sanction" or "liability." Why is criminal law kept distinct? One can conceive of a system in which no such criminal-civil distinction exists. An actor who commits a violation of the legal rules of conduct (not a "crime") would have jurisdiction taken over him (not "convicted"), during which time he would be corrected or sanctioned (but not "punished"). Under this system, what is now dealt with as criminal law would be treated as just another aspect of civil law. In fact, because it is not unusual for different aspects of civil law to have different procedures, perhaps even current criminal procedures could be followed. Some academics have proposed just such a system,1 although I know of no society in which such a system currently operates. Why are societies persistent in maintaining a distinct system labelled as "criminal"? Criminal law is not unique in the conduct it punishes; some conduct violates criminal and civil law.2 Nor is criminal law unique in the deprivations that it imposes; civil commitment, tort law, and a variety of other civil measures can deprive a person of his or her

Judicial Integrity: A Call for its Re-Emergence in the Adjudication of Criminal Cases

Abstract: Follow this and additional works at: http://lawdigitalcommons.bc.edu/lsfp Part of the Civil Rights and Discrimination Commons, Courts Commons, Criminal Law Commons, Ethics and Professional Responsibility Commons, Human Rights Law Commons, Judges Commons, Jurisdiction Commons, Jurisprudence Commons, Law and Society Commons, Law Enforcement and Corrections Commons, Legal Education Commons, Legal History, Theory and Process Commons, Legal Writing and Research Commons, Legislation Commons, Litigation Commons, and the Public Law and Legal Theory Commons

The Realities of Punishment

Abstract: In an effort to address the problem of crime during the past dozen years, the United States has imprisoned more people for longer periods. From 1980 to 1990, the nation's prison population more than doubled, to well over one million.' America's rate of incarceration is unsurpassed by any country in the world, including South Africa and the former Soviet Union.2 By 1991, one of every twenty-five American men were under the control of the criminal justice system.3 The situation is even bleaker for young AfricanAmerican males.4