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Criminal Procedure

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2018

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Dangerous Defendants, Sandra G. Mayson Jan 2018

Dangerous Defendants, Sandra G. Mayson

Scholarly Works

Bail reform is gaining momentum nationwide. Reformers aspire to untether pretrial detention from wealth (the ability to post money bail) and condition it instead on statistical risk, particularly the risk that a defendant will commit crime if he remains at liberty pending trial. The bail reform movement holds tremendous promise, but also forces the criminal justice system to confront a difficult question: What statistical risk that a person will commit future crime justifies short-term detention? What about lesser restraints, like GPS monitoring? Although the turn to actuarial risk assessment in the pretrial context has engendered both excitement and concern, the …

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The Scale Of Misdemeanor Justice, Megan T. Stevenson, Sandra G. Mayson Jan 2018

The Scale Of Misdemeanor Justice, Megan T. Stevenson, Sandra G. Mayson

Scholarly Works

This Article seeks to provide the most comprehensive national-level empirical analysis of misdemeanor criminal justice that is currently feasible given the state of data collection in the United States. First, we estimate that there are 13.2 million misdemeanor cases filed in the United States each year. Second, contrary to conventional wisdom, this number is not rising. Both the number of misdemeanor arrests and cases filed have declined markedly in recent years. In fact, national arrest rates for almost every misdemeanor offense category have been declining for at least two decades, and the misdemeanor arrest rate was lower in 2014 than …

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Character Assassination: Amending Federal Rule Of Evidence 404(B) To Protect Criminal Defendants, Liesa L. Richter Dec 2017

Character Assassination: Amending Federal Rule Of Evidence 404(B) To Protect Criminal Defendants, Liesa L. Richter

Liesa L. Richter

There is a war raging over the admissibility of the prior bad acts of criminal defendants in federal trials. While many circuits treat Federal Rule of Evidence 404(b) as a rule of “inclusion” and liberally admit such prior bad-acts evidence with predictably explosive effects on criminal juries, a few circuits are developing rigorous standards designed to foreclose prosecutorial use of such bad-acts evidence. This Article chronicles the well-documented permissive admission of the prior bad acts of criminal defendants notwithstanding the prohibition on such evidence by Federal Rule of Evidence 404(b)(1), as well as recent efforts by some federal circuits to …

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Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson Dec 2017

Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson

Stephen E Henderson

We finally have a federal ‘test case.’  In Carpenter v. United States, the Supreme Court is poised to set the direction of the Fourth Amendment in the digital age.  The case squarely presents how the twentieth-century third party doctrine will fare in contemporary times, and the stakes could not be higher.  This Article reviews the Carpenter case and how it fits within the greater discussion of the Fourth Amendment third party doctrine and location surveillance, and I express a hope that the Court will be both a bit ambitious and a good measure cautious. 
 
As for ambition, the …

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Here Comes The Judge: A Model For Judicial Oversight And Regulation Of The Brady Disclosure Duty, Cynthia E. Jones Dec 2017

Here Comes The Judge: A Model For Judicial Oversight And Regulation Of The Brady Disclosure Duty, Cynthia E. Jones

Cynthia E. Jones

Under the current state of the law, there is no mechanism in place to ensure that a criminal defendant receives information in the exclusive possession of the government that negates guilt, undermines the strength of the government's case, or reduces the sentence that could be imposed. Whenever a prosecutor wants to do so, she can suppress this favorable information and prevent the court and the defense from ever learning of its existence. Without oversight and with very little accountability, prosecutors have been vested with the power to determine whether and when to disclose favorable evidence to the defense. Although many …

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Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez Dec 2017

Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

In Birchfield v. North Dakota (2016), the Supreme Court broke new Fourth Amendment ground by establishing that law enforcement’s collection of information can be cause for “anxiety,” meriting constitutional protection, even if subsequent uses of the information are tightly restricted.  This change is significant.  While the Court has long recognized the reality that police cannot always be trusted to follow constitutional rules, Birchfield changes how that concern is implemented in Fourth Amendment law, and importantly, in a manner that acknowledges the new realities of data-driven policing.
 
Beyond offering a careful reading of Birchfield, this Article has two goals. …

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Artificial Intelligence And Role-Reversible Judgment, Stephen E. Henderson, Kiel Brennan-Marquez Dec 2017

Artificial Intelligence And Role-Reversible Judgment, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

As intelligent machines begin more generally outperforming human experts, why should humans remain ‘in the loop’ of decision-making?  One common answer focuses on outcomes: relying on intuition and experience, humans are capable of identifying interpretive errors—sometimes disastrous errors—that elude machines.  Though plausible today, this argument will wear thin as technology evolves.

Here, we seek out sturdier ground: a defense of human judgment that focuses on the normative integrity of decision-making.  Specifically, we propose an account of democratic equality as ‘role-reversibility.’  In a democracy, those tasked with making decisions should be susceptible, reciprocally, to the impact of decisions; there ought to …

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Brief Of Amici Curiae Criminal Procedure Professors In Gamble V. United States, No. 17-646, Stephen E. Henderson, George C. Thomas Iii, Michael J.Z. Mannheimer, Kiel Brennan-Marquez Dec 2017

Brief Of Amici Curiae Criminal Procedure Professors In Gamble V. United States, No. 17-646, Stephen E. Henderson, George C. Thomas Iii, Michael J.Z. Mannheimer, Kiel Brennan-Marquez

Stephen E Henderson

The Fifth Amendment guarantees that, “No person shall be ... subject for the same offence to be twice put in jeopardy of life or limb.” Yet that is precisely what happened to Terance Martez Gamble. The State of Alabama prosecuted and convicted him for being a felon in possession of a firearm. Subsequently, the United States initiated a second prosecution for what all parties have assumed is definitionally the same offense, yielding a second conviction. That second, duplicative prosecution and conviction violated the letter and spirit of the Double Jeopardy Clause.

As a matter of the Framer’s understanding, as a matter …

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A Few Criminal Justice Big Data Rules, Stephen E. Henderson Dec 2017

A Few Criminal Justice Big Data Rules, Stephen E. Henderson

Stephen E Henderson

As with most new things, the big data revolution in criminal justice has historic antecedents—indeed, a 1965 Presidential Commission called for some of the same data analysis that police departments and courts are today developing and implementing.  But there is no doubt we are on the precipice of a criminal justice data revolution, and it is a good time to take stock and to begin developing guidelines so that, as much as possible, criminal justice systems might reap the benefits and avoid the pitfalls of this newly data-centric world.  In that spirit, I propose ten high-level rules to guide criminal …

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