April 2012
Do alerts by drug-detection dogs justify a warrantless search? Is an eyewitness’s identification of a suspect more reliable if the suspect is a prior acquaintance of the eyewitness?
Articles in this Issue
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Are Antitrust Violations Crimes Involving Moral Turpitude?
If an alien who has no U.S. immigration status is convicted of a crime involving moral turpitude (CIMT), the alien is subject to exclusion from the United States for a minimum of 15 years. For non-U.S. executives who do business with American companies, a 15-year ban on travel to the United States is potentially a career killer. But what offenses constitute a CIMT? When a criminal antitrust violation is alleged, the 15-year ban can come into play because, pursuant to a 1996 Memorandum of Understanding (MOU), the Department of Justice considers a criminal violation of the Sherman Antitrust Act to be a CIMT. No court, however, has held that a Sherman Act violation is a CIMT.
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Book Review: Capital Punishment on Trial: Furman v. Georgia and the Death Penalty in Modern America
Book Review: Capital Punishment on Trial: Furman v. Georgia and the Death Penalty in Modern America David M. Oshinsky April 2012 50 By David M. Oshinsky University Press of Kansas (2010) Reviewed by Jayson D. Bozek In Capital Punishment on Trial: Furman v. Georgia and the Death Penalty
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Book Review: Case Analysis: Winning Hard Cases Against the Odds
Book Review: Case Analysis: Winning Hard Cases Against the Odds James H. McComas April 2012 50 By James H. McComas Trial Guides LLC (2011) Reviewed by Jonathan A. Rapping Cases are won and lost long before trials begin. A lawyer begins earning a not guilty verdict the moment the lawyer
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Book Review: Rethinking Juvenile Justice
Book Review: Rethinking Juvenile Justice Elizabeth S. Scott and Laurence Steinberg April 2012 51 By Elizabeth S. Scott and Laurence Steinberg Harvard University Press (2008) Reviewed by Erik R. Guenther Scott and Steinberg offer a juvenile justice rehabilitation model that distinguishes
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Book Review: Surviving Padilla: A Defender’s Guide to Advising Noncitizens on the Immigration Conseq
Book Review: Surviving Padilla: A Defender’s Guide to Advising Noncitizens on the Immigration Consequences Of Criminal Convictions Kara Hartzler April 2012 49 B y Kara Hartzler Florence Immigrant and Refugee Rights Project (2011) Reviewed by Gail Gianasi Natale Si
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Book Review: Taking Liberties: The War on Terror and the Erosion of Democracy
Book Review: Taking Liberties: The War on Terror and the Erosion of Democracy Susan N. Herman April 2012 51 By Susan N. Herman Oxford University Press (2011) Reviewed by Jon M. Sands We have marked the 10th anniversary of September 11th. We commemorated the terrible and tragic date with
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Don’t I Know You? The Effect of Prior Acquaintance/Familiarity On Witness Identification
It is now conventional wisdom that eyewitness identifications can be notoriously unreliable. But what about identifications by witnesses who believe the perpetrator is someone familiar? Are their identifications reliable? Empirical evidence and an array of DNA exonerations have confirmed that familiarity does not eliminate misidentification problems. Consequently, courts should permit expert testimony to assist the jury in properly assessing the reliability of all eyewitness evidence, regardless of whether the witness claimed the suspect was familiar.
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From the President: Gideon's Champion
NACDL has launched a 12-month celebration of the Gideon v. Wainwright decision.
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Frye and Lafler: Much Ado About What We Do — And What Prosecutors and Judges Should Not Do (Inside N
The decisions in Missouri v. Frye and Lafler v. Cooper are likely to prompt prosecutors to routinely convey plea offers in writing or place those offers on the record.
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Jury Instruction Corner: Duplicity— Part Four
The question of specific juror unanimity/duplicity continues to surface on a regular basis. Thomas Lundy discusses issues related to appellate review of specific unanimity claims, including the bases upon which reviewing courts hold specific unanimity error to be harmless. Jury unanimity is a constitutionally based concept — a defendant is entitled to a verdict in which all jurors concur, beyond a reasonable doubt, as to each count charged. “Duplicity,” another term used to describe this doctrine, is the joining in a single count of two or more distinct and separate offenses.
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Legislators Seek to Reform Lacey Act (NACDL News)
Legislators Seek to Reform Lacey Act (NACDL News) Ivan J. Dominguez NACDL News April 2012 13 Identical bills have been introduced in the U.S. House and Senate seeking to reform the Lacey Act, a 112-year-old law that originally targeted illegal trade in wild game. This legislation, the “Freedom fro
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Misconduct Report on Ted Stevens Prosecution: ‘Systematic Concealment of Exculpatory Evidence’(NACDL
Misconduct Report on Ted Stevens Prosecution: ‘Systematic Concealment of Exculpatory Evidence’(NACDL News) Jack King NACDL News April 2012 13 A two-year investigation of the prosecution of late Alaska Sen. Ted Stevens, released on March 15, 2012, reveals that federal prosecutors and an FBI agent i
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NACDL Applauds Bipartisan Discovery Reform Legislation Introduced in the U.S. Senate(NACDL News
NACDL Applauds Bipartisan Discovery Reform Legislation Introduced in the U.S. Senate(NACDL News) Ivan J. Dominguez NACDL News April 2012 13 On March 15, 2012, leading U.S. senators introduced bipartisan legislation to bring about sensible discovery reform in criminal prosecutions. The bill is entit
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NACDL Launches Weekly ‘Criminal Docket’ Podcast (NACDL News)
NACDL Launches Weekly ‘Criminal Docket’ Podcast (NACDL News) Ivan J. Dominguez NACDL News April 2012 12 O n March 16, 2012, NACDL launched a weekly podcast review of news and issues. Each week, The Criminal Docket provides a rundown of the highlights in criminal justice news from the prior week,
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NACDL White Collar Criminal Defense College at Stetson Honors Levine, Handzlik, and Napper (NACDL Ne
NACDL White Collar Criminal Defense College at Stetson Honors Levine, Handzlik, and Napper (NACDL News) Tiffany M. Joslyn NACDL News April 2012 14 In conjunction with the inaugural NACDL White Collar Criminal Defense College at Stetson University College of Law, held March 15-20, 2012, NACDL awarde
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Police K-9's and the Constitution: What Every Lawyer and Judge Should Know
Positive K-9 dog “alerts” — indicating the odor of drugs — are treated as probable cause in most states. Judges are too eager to blindly accept affidavits from police officers that their drug-detection dogs were trained and certified, and that alerts by their dogs justified a warrantless search or justified the issuance of a search warrant. K-9 alerts, however, are unreliable and should not constitute probable cause. Dogs learn that an alert results in a treat or a reward in most instances, even if no drugs are found. Moreover, in a world in which drug and nondrug users share currency, door handles and other objects, K-9 alerts based on the presence of residual drug odors are meaningless.
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Report Addresses Government Access to Private Records Held by Third Parties(NACDL News)
Report Addresses Government Access to Private Records Held by Third Parties(NACDL News) Jack King NACDL News April 2012 12 At the midwinter board meeting in Ft. Lauderdale on Feb. 12, NACDL’s Board of Directors approved and adopted a white paper report on law enforcement access to third-party reco
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Spinning the Law: Trying Cases in the Court of Public Opinion
Book Review: Spinning the Law: Trying Cases in the Court of Public Opinion Kendall Coffey April 2012 51 By Kendall Coffey Prometheus (2010) Reviewed by William R. Terpening “Criminal defense lawyers are the law’s ultimate underdogs,” writes Kendall Coffey, but “while underdogs at sporti
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The right to counsel does not apply in Indian tribal courts(Letter to the Editor)
The right to counsel does not apply in Indian tribal courts(Letter to the Editor) Tova Indritz Letter to the Editor April 2012 20 Kudos to Norman Reimer for his fine article — After Half a Century, Gideon ’s Promise Remains Elusive — in the January/February 2012 issue. He makes many good points
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Tilted: The Trials of Conrad Black
Prosecutors’ multicount indictment accused Conrad Black, a Canadian who helped build the third largest media company in the world, of defrauding his company of millions by paying himself bogus noncompetition fees related to the sale of American community newspapers. Ultimately, an appeals court affirmed a single conviction for mail fraud and obstruction of justice. Steven Skurka discusses the profound differences between the U.S. and Canadian criminal justice systems, and writes that the system in the United States unfairly favors prosecutors.