The Future of Confrontation

The Supreme Court seems to be setting the stage for a long-awaited examination of the confrontation clause. It has been ten years since the Court endeavored in Dutton v. Evans to reconcile the evidentiary rules of hearsay with the constitutional commands of confrontation. Dutton came at the tail end of a string of confrontation cases that the Court had resolved without apparent difficulty. Not surprisingly, the Court approached Dutton in the evident belief that it could resolve the constitutional problems of hearsay once and for all. Instead, after oral argument in 1969 and a rehearing in 1970, the Court found itself hopelessly divided, able to produce only an inconclusive plurality opinion. Since then, the Court has conspicuously avoided this central problem of the relationship between hearsay and confrontation

How Not to Argue That Reasonable Provocation is Not an Excuse

Reid Fontaine draws two conclusions regarding the partial defense to murder of reasonable provocation-one regarding its substantive content, the other regarding its formal classification…. I agree with both of Fontaine\u27s two conclusions, and, indeed, I have previously written to that effect. Unfortunately, while I agree with Fontaine\u27s conclusions, I do not think he adequately supports them

Compulsory Process, Right to

The first state to adopt a constitution following the Declaration of Independence (New Jersey, 1776) guaranteed all criminal defendants the same ‘‘privileges of witnesses’’ as their prosecutors. Fifteen years later, in enumerating the constitutional rights of accused persons, the framers of the federal Bill of Rights bifurcated what New Jersey called the ‘‘privileges of witnesses’’ into two distinct but related rights: the Sixth Amendment right of the accused ‘‘to be confronted with the witnesses against him,’’ and his companion Sixth Amendment right to ‘‘compulsory process for obtaining witnesses in his favor.’’ The distinction between witnesses ‘‘against’’ the accused and witnesses ‘‘in his favor’’ turns on which of the parties—the prosecution or the defense—offers the witness’s statements in evidence as a formal part of its case. The confrontation clause establishes the government’s obligations regarding the production and examination of witnesses whose statements the prosecution puts into evidence either in its case in chief or in rebuttal. The compulsory process clause establishes the government’s obligations regarding the production and examination of witnesses whose statements the defendant seeks to put into evidence in his respective case

The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences

Every now and then a case ·comes along that tests the fundamental premises of a body of law. United States v. DiFrancesco presents such a test to the law of double jeopardy, raising the question whether the government may unilaterally appeal a defendant\u27s criminal sentence for the purpose of increasing the sentence. The question cannot be answered by facile reference to the text of the fifth amendment, because the terms of the double jeopardy clause are not self-defining. Nor can it be settled by reference to history, because the issue has not arisen with any frequency until now

Hearsay Rule

The hearsay rule is a non constitutional rule of evidence which obtains in one form or another in every jurisdiction in the country. The rule provides that in the absence of explicit exceptions to the contrary, hearsay evidence of a matter in dispute is inadmissible as proof of the matter. Although jurisdictions define hearsay in different ways, the various definitions reflect a common principle: evidence that derives its relevance in a case from the belief of a person who is not present in court—and thus not under oath and not subject to cross-examination regarding his credibility—is of questionable probative value

The International Criminal Court and the African Union: Is the ICC a bulwark against impunity or an imperial Trojan horse?

There is a diplomatic impasse between the International Criminal Court (ICC) and the African Union (AU) regarding accountability for mass atrocities committed in Africa. The AU accuses the ICC of bias against African rulers, in effect, ‘Africans’, while the ICC insists that as a permanent legal institution, it affords justice to all victims of egregious crimes such as war crimes, crimes against humanity and genocide. And so Africans, victims of these crimes, deserve justice too. Since the indictment of the Sudanese president, Omar al-Bashir, twice for crimes against humanity and then for genocide, the ICC has elicited antipathy from some African rulers and their supporters who perceive it as an adjunct of imperialism encroaching on Africa’s sovereignty. However, sovereignty entails responsibility to protect (R2P). The AU Constitutive Act of 2000 affirms this under the non-indifference principle. It is therefore counter-intuitive to accede to international norms and concurrently invoke ‘absolute sovereignty’ as  some African rulers attempt to do. Africa’s conflicts are characterised by mass atrocities owing to weak states that are unable and often unwilling to protect citizens and dispense justice. In some cases these states are themselves perpetrators of heinous crimes, which necessitates intervention by the international community. Historically, realpolitik, self-preservation and geopolitics have marred international criminal justice, and Africa’s relationship with the West is steeped in humiliation making some African rulers suspicious of Western-dominated institutions. The perception that the ICC dispenses lopsided justice stems from this history. This paper argues that the choice between justice and peace is a false one since the two mutually reinforce each other, while impunity, if not checked, portends instability in Africa.Keywords: Africa, Kenya, African Union, ICC, R2P, ethnicity, international criminal justic

Fraudulent Conveyances in the Conflict of Laws: Easy Cases May Make Bad Law

It has been said that hard cases often make bad law. The recent decision by the New York Court of Appeals in James v. Powell suggests that easy cases, too, may make bad law-especially where a scholarly judge ventures beyond the demands of the case before him

How to Think (Like a Lawyer) About Rape

From the American Law Institute to college campuses, there is a renewed interest in the law of rape. Law school faculty, however, may be reluctant to teach this deeply debated topic. This article begins from the premise that controversial and contested questions can be best resolved when participants understand the conceptual architecture that surrounds and delineates the normative questions. This allows participants to talk to one another instead of past each other. Accordingly, in this article, we begin by diffusing two non-debates: the apparent conflict created when we use “consent” to mean two different things and the question of whether rape law ought to be formulated in terms of consent or force. From here, we turn to the conceptual apparatuses that surround the normative questions of freedom from force, knowledge, and capacity. Here, we suggest how better understanding these concepts can frame the underlying discussions as to what sorts of coercion undermine consent, what kinds of deception invalidate consent, and when the victim is too incapacitated to consent. Finally, we turn to different formulations of consent, demonstrating that one conception better captures the harm of rape but that other formulations may better protect victims. We show how clarifying these questions allows discussants to see why different formulations are valuable and to debate the best all-things-considered formulation. Although this article is framed as a question of how (to teach students) to think like lawyers about rape, its ambition is to set forth a framework that is useful to reformers as well

Constructing a complete landslide inventory dataset for the 2018 monsoon disaster in Kerala, India, for land use change analysis

Event-based landslide inventories are important for analyzing the relationship between the intensity of the trigger (e.g., rainfall, earthquake) and the density of the landslides in a particular area as a basis for the estimation of the landslide probability and the conversion of susceptibility maps into hazard maps required for risk assessment. They are also crucial for the establishment of local rainfall thresholds that are the basis of early warning systems and for evaluating which land use and land cover changes are related to landslide occurrence. The completeness and accuracy of event-based landslide inventories are crucial aspects to derive reliable results or the above types of analyses. In this study, we generated a relatively complete landslide inventory for the 2018 monsoon landslide event in the state of Kerala, India, based on two inventories that were generated using different methods: one based on an object-based image analysis (OBIA) and the other on field surveys of damaging landslides. We used a collaborative mapping approach based on the visual interpretation of pre- and post-event high-resolution satellite images (HRSIs) available from Google Earth, adjusted the two inventories, and digitized landslides that were missed in the two inventories. The reconstructed landslide inventory database contains 4728 landslides consisting of 2477 landslides mapped by the OBIA method, 973 landslides mapped by field survey, 422 landslides mapped both by OBIA and field methods, and an additional 856 landslides mapped using the visual image (Google Earth) interpretation. The dataset is available at line uri \u3ehttps://doi.org/10.17026/dans-x6c-y7x2\u3e (van Westen, 2020). Also, the location of the landslides was adjusted, based on the image interpretation, and the initiation points were used to evaluate the land use and land cover changes as a causal factor for the 2018 monsoon landslides. A total of 45 % of the landslides that damaged buildings occurred due to cut-slope failures, while 34 % of those having an impact on roads were due to road cut-slope failures. The resulting landslide inventory is made available for further studies.