Digital Commons Network^™

Eliminating Rule 609 To Provide A Fair Opportunity To Defend Against Criminal Charges: A Proposal To The Advisory Committee On The Federal Rules Of Evidence, Jeffrey Bellin

Faculty Publications

Federal Rule of Evidence 609 authorizes the admission of prior convictions to impeach criminal defendants who testify. And in this important and uniquely damaging application, the [r]ule’s logic fails, distorting American trials and depriving defendants of a fair opportunity to defend against the charges. The Advisory Committee [on Evidence Rules (the “Advisory Committee”)] should propose the elimination of Rule 609 and prohibit cross-examination with specific instances of a criminal defendant’s past conduct when those instances are unrelated to the defendant’s testimony and unconnected to the case.

This short essay begins by setting out the proposed rule change alongside a proposed …

Study Protocol: Identifying Transcriptional Regulatory Alterations Of Chronic Effects Of Blast And Disturbed Sleep In United States Veterans, Molly J. Sullan, Kelly A. Stearns-Yoder, Zhaoyu Wang, Andrew J. Hoisington, Adam D. Brenoweth, Walter Carr, Yongchao Ge, Hanga Galfalvy, Fatemah Haghighi, Lisa A. Brenner

Faculty Publications

Injury related to blast exposure dramatically rose during post-911 era military conflicts in Iraq and Afghanistan. Mild traumatic brain injury (mTBI) is among the most common injuries following blast, an exposure that may not result in a definitive physiologic marker (e.g., loss of consciousness). Recent research suggests that exposure to low level blasts and, more specifically repetitive blast exposure (RBE), which may be subconcussive in nature, may also impact long term physiologic and psychological outcomes, though findings have been mixed. For military personnel, blast-related injuries often occur in chaotic settings (e.g., combat), which create challenges in the immediate assessment of …

Forensic Evidence Preservation Following An Incident Of Rape: The Role Of The Victim, Anthonio Oladele Adefuye, Chika K. Egenasi, Matthew A. Benedict

Faculty Publications

Background: Rape has a high prevalence in South Africa. The collection of credible and valid forensic evidence is a key legal factor that impacts case trial outcomes. Victim behaviour around the time of the rape can impact the collection and the integrity of forensic evidence, and can have a direct effect on case progression and conviction. Despite the importance of victim behaviour, few studies have been done on the role of victims in preserving forensic evidence. This article discusses how common personal hygiene practices undertaken by rape victims after being raped can impact the quality and validity of forensic evidence. …

Epidemiological Pattern Of Rape Cases Managed At A Regional Hospital In South Africa, Chika K. Egenasi, Matthew A. Benedict, Anthonio Oladele Adefuye, Lynda U. Madu

Faculty Publications

Background: South Africa has one of the highest incidences of rape globally. Understanding the epidemiological pattern of rape is needed to inform the design of effective intervention programmes for rape prevention and management of alleged rape cases.

Aims: To investigate important epidemiological patterns associated with rape in Kimberly, Northern Cape Province, South Africa.

Setting: The Robert Mangaliso Sobukwe Hospital (RMSH) forensic unit.

Methods: A descriptive, retrospective cross-sectional clinical audit of rape cases.

Results: The majority (93.3%) of the alleged rape victims were women, with a mean age (SD) of 21.6 years (11.3); the male population made up 6.7% of the …

Aggressor Status And Its Impact On International Criminal Law Case Selection, Nancy Amoury Combs

Faculty Publications

The laws of war apply equally to all parties to a conflict; thus, a party that violates international law by launching a war is granted the same international humanitarian law rights as a party that is required to defend against the illegal war. This doctrine—known as the equal application doctrine—has been sharply critiqued, particularly by philosophers, who claim the doctrine to be morally indefensible. Lawyers and legal academics, by contrast, defend the equal application doctrine because they reasonably fear that applying different rules to different warring parties will sharply reduce states’ willingness to comply with the international humanitarian law system …

Can Judges Help Ease Mass Incarceration?, Jeffrey Bellin

Faculty Publications

A scholar considers how judges have contributed to historically high incarceration rates -- and how they can help reverse the trend.

Can The Excessive Fines Clause Mitigate The Lfo Crisis? An Assessment Of The Caselaw, Michael M. O'Hear

Faculty Publications

The nation’s increasing use of fees, fines, forfeiture, and restitution has resulted in chronic debt burdens for millions of poor and working-class Americans. These legal financial obligations (LFOs) likely entrench racial and socioeconomic divides and contribute to the breakdown of trust in the police and courts in disadvantaged communities. One possible source of restraint on LFOs may be the Excessive Fines Clause of the Eighth Amendment. Largely ignored by courts and commentators for two centuries, the Clause has in recent years been the subject of a burgeoning volume of litigation and scholarship. The U.S. Supreme Court has decided a handful …

The Game, The Players, And The Board, Bruce E. Boyden

Faculty Publications

Christopher Seaman and Thuan Tran’s fascinating article, Intellectual Property and Tabletop Games, raises important questions about the role of intellectual property in developing and distributing innovative products. The market for tabletop games, Seaman and Tran argue, is able to sustain a high level of creativity at a high up-front cost, all while protected by some but not all of the IP rights that other industries’ outputs receive. Is that evidence of IP’s necessity or its superfluousness? In this Response, I argue that the answer is a little bit of both. Whereas prior scholarship has shown the lack of an …

Ai-Based Evidence In Criminal Trials?, Sabine Gless, Fredric I. Lederer, Thomas Weigend

Faculty Publications

Smart devices are increasingly the origin of critical criminal case data. The importance of such data, especially data generated when using modern automobiles, is likely to become even more important as increasingly complex methods of machine learning lead to AI-based evidence being autonomously generated by devices. This article reviews the admissibility of such evidence from both American and German perspectives. As a result of this comparative approach, the authors conclude that American evidence law could be improved by borrowing aspects of the expert testimony approaches used in Germany’s “inquisitorial” court system.

A Critical Systematic Literature Review Of Global Inclusive Education Using An Affective, Intersectional, Discursive, Emotive And Material Lens, David Isaac Hernández-Saca, Catherine Kramarczuk Voulgarides, Susan Larson Etscheidt

Faculty Publications

We conducted a critical systematic literature review on global inclusive education and law. The critical review questions were: (1) how have scholars theorized, conceptualized, and studied global inclusive education? (2) How do scholars define global inclusive education? (3) And what do scholars cite as prominent international inclusive education law? We ask such questions given the ongoing global crises that situate historically marginalized groups in even more precarious positions—including students with dis/Abilities. Given this framing, we employed a critical systematic literature review that is cognizant of our positionalities, writing from the Global North, so that we can identify lines of inquiry …

Laundering Police Lies, Adam Gershowitz, Caroline E. Lewis

Faculty Publications

Police officers—like ordinary people—are regularly dishonest. Officers lie under oath (testilying), on police reports (reportilying), and in a myriad of other situations. Despite decades of evidence about police lies, the U.S. Supreme Court regularly believes police stories that are utterly implausible. Either because the Court is gullible, willfully blind, or complicit, the justices have simply rubber-stamped police lies in numerous high-profile cases. For instance, the Court has accepted police claims that a suspect had bags of cocaine displayed in his lap at the end of a police chase (Whren v. United States), that officers saw marijuana through a …

Sentencing In An Era Of Plea Bargains, Jeffrey Bellin, Jenia I. Turner

Faculty Publications

The literature offers inconsistent answers to a question that is foundational to criminal law: Who imposes sentences? Traditional narratives place sentencing responsibility in the hands of the judge. Yet, in a country where 95% of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors—who control plea terms—as the deciders of punishment. This Article highlights and seeks to resolve the tension between these conflicting narratives by charting the pathways by which sentences are determined in a system dominated by plea bargains.

After reviewing the empirical literature on sentence variation, examining state and federal plea-bargaining rules and doctrines, …

Hirschsprung Disease: A Literacy Analysis Of Patient Information, April L. Baum, Anh Nguyen, Michael J. Valentine, Larissa Vollin, Caleb Mcnab, Carol E. Kirila

Faculty Publications

Objective: Hirschsprung disease in newborns can be a potentially life-threatening condition, with risks for complications such as Hirschsprung-associated enterocolitis. Accessing health information in a readable format for complex diseases demonstrates an important outlet for families to address concerns. While it is important to seek out information from trusted providers, many individuals seek out ways to educate themselves further by using common search engines and turning to the internet. This article will evaluate the readability of relevant articles on Hirschsprung disease and information accessibility to the average health literacy individual.

Methods: A readability analysis of the first 20 Google search results …

The Emergence Of Convergence, Shana M. Sundstrom, David G. Angeler, Jessica G. Ernakovich, Jorge H. Garcia, Joseph A. Hamm, Orville Huntington, Craig R. Allen

Faculty Publications

Science is increasingly a collaborative pursuit. Although the modern scientific enterprise owes much to individuals working at the core of their field, humanity is increasingly confronted by highly complex problems that require the integration of a variety of disciplinary and methodological expertise. In 2016, the U.S. National Science Foundation launched an initiative prioritizing support for convergence research as a means of “solving vexing research problems, in particular, complex problems focusing on societal needs.” We discuss our understanding of the objectives of convergence research and describe in detail the conditions and processes likely to generate successful convergence research. We use our …

Making Space Behind The Veil: Black Agency Within A Predominantly White Religion, Michael Wood, Grace Ann Soelberg, Jacob Rugh

Faculty Publications

The work of W.E.B. Du Bois highlights the significance of Christian religion in Black American life. According to Du Bois, the Black Church serves as a site of self-formation and affirmation, and the White Church as a source of racist beliefs and justifications for inequality. In this paper, we expand Du Bois’ inquiry about the influence of religion with a study of Black Americans who belong to a predominantly White religion. For those whose religious experience is almost wholly within the “white world,” what role does religion play in their lives? We analyze a set of 52 public accounts by …

The Racialized Violence Of Police Canine Force, Madalyn K. Wasilczuk

Faculty Publications

No abstract provided.

Criminal Justice Reform And The Centrality Of Intent, Cynthia V. Ward

Faculty Publications

The nationwide movement for criminal justice reform has produced numerous proposals to amend procedural and sentencing practices in the American criminal justice system. These include plans to abolish mandatory minimum schemes in criminal sentencing; address discrimination in charging, convicting, and sentencing; reform drug policy; rectify discriminatory policies and practices in policing; assist incarcerated individuals in re-entering society when released from prison; and reorganize our system of juvenile justice. But less attention has been given to reforming the substantive content of the criminal law—specifically, to addressing flaws in how the law defines the elements of criminal culpability and deploys them in …

Does Mitochondrial Replacement Therapy Violate Laws Against Human Cloning?, Kerry L. Macintosh

Faculty Publications

All human beings have mitochondria within their cells that produce energy.1 Most of us inherit healthy mitochondria through the eggs of our mothers,2 but some of us are not so lucky. Mutations in mitochondrial DNA (mtDNA) can cause these tiny organelles to function improperly and disrupt tissues that require a lot of energy, like the brain, kidney, liver, heart, muscle, and central nervous system.3 For example, a specific mtDNA mutation induces Leigh syndrome, a condition in which seizures and respiratory failure lead to decline in mental and motor skills, disabil- ity, and death.4 Mitochondrial replacement therapy (MRT) offers a solution …

The Texas Second Chance Non-Disclosure/Sealing Gap, Colleen Chien

Faculty Publications

Texas Gov. Code Chap. 411 allows individuals whose criminal records meet certain conditions to non-disclose or seal their records. Ascertaining, then applying the law to the criminal profiles of Texans with convictions or deferred adjudications, as reflected in the Texas Computerized Criminal History System database (CCH) obtained from the Texas Department of Public Safety (described in Appendix B), as well as a sample of 2,362 criminal histories, and then 4 extrapolating to the estimated population of 4.8M individuals in the state with conviction records and estimated population of 7M individuals in the state with any record we estimate the share …

Legal Order At The Border, Evan J. Criddle

Faculty Publications

For generations, the United States has grappled with high levels of illegal immigration across the U.S.-Mexico border. This Article offers a novel theoretical framework to explain why legal order remains elusive at the border. Drawing inspiration from Lon Fuller’s “interactional view of law,” I argue that immigration law cannot attract compliance unless it is general, public, prospective, clear, consistent, and stable; obedience with its rules is feasible; and the law’s enforcement is congruent with the rules as enacted. The flagrant violation of any one of these principles could frustrate the development of a functional legal order. Remarkably, U.S. immigration law …

The Clinic As A Site Of Grounded Pedagogy, Madalyn K. Wasilczuk

Faculty Publications

Legal education tends to focus on teaching students federal law from hefty casebooks, inculcating the ability to "think like lawyers." In a sea of Socratic lectures and hypotheticals, students often take refuge in clinics as an island of practical skills-building, client centeredness, and individual fulfillment. Yet even clinics sometimes fail to highlight for students how the place where they practice, with its particular political context and history, shapes their clients' lives and legal problems. This Article describes the law school clinic as a site of grounded pedagogy: a teaching method that centers the con­nection between local history and the present …

The Minnesota Second Chance Expungement Gap, Colleen Chien

Faculty Publications

Minnesota Statute Sections 609A, 243.166, and 609.02 define conditions under which individuals with criminal records can expunge their records. Ascertaining, then applying the law to a sample of 581,478 criminal histories of people with convictions records, and then extrapolating to the estimated population of 1.1M individuals in the state with criminal records , 2 we estimate the share and number of people who are eligible for relief but have not received it and therefore fall into the “second chance gap,” the difference between eligibility for and receipt of records relief. Importantly, we assumed that all who met the threshold criteria …

The New York Second Chance Sealing Gap, Colleen Chien

Faculty Publications

No abstract provided.

The Missouri Second Chance Expungement Gap, Colleen Chien

Faculty Publications

No abstract provided.

The Illinois Second Chance Expungement/Sealing Gap, Colleen Chien

Faculty Publications

No abstract provided.

The Oregon Second Chance Set-Aside Gap, Colleen Chien

Faculty Publications

No abstract provided.

Plea Bargaining's Uncertainty Problem, Jeffrey Bellin

Faculty Publications

While commentators roundly condemn plea bargaining, the criticism can be as muddled as the practice itself. Critics’ primary target is the “trial penalty.” But a differential between guilty-plea and trial sentences seems inevitable in any system that allows defendants to concede guilt. And, as a new wave of “progressive prosecutors” is demonstrating, gaps between (unusually lenient) plea offers and long (potential) post-trial sentences are not only a strong incentive to plead guilty but also a powerful tool for reducing American penal severity. Other critiques point to flaws that parallel those found in the broader system, overlooking that plea bargaining is …

A Perpetrator By Any Other Name: Unpacking The Characterizations And Consequences Of The "Terrorist", "Lone Wolf", And "Mass Shooter" Labels For Perpetrators Of Mass Violence, Katherine Lacasse, Maggie Campbell-Obaid

Faculty Publications

Objective: To better understand the implications of applying different labels to perpetrators of mass violence.

Method: Two experiments (Study 1 N= 307 college students, Study 2 N= 696 community sample recruited through Prolific Academic) were conducted to examine U.S. public perceptions of ‚Äúterrorist‚Äù, ‚Äúlone wolf‚Äù, and ‚Äúmass shooter‚Äù (only in Study 2) labels. In both studies, participants were randomly assigned to consider one of the terms and respond to prompts about the assumed demographic characteristics and traits of the perpetrator. In Study 2, participants also responded to prompts about the appropriate consequences for the perpetrator and the best policies to …

The Gender Of Gideon, Kathryn A. Sabbeth, Jessica Steinberg

Faculty Publications

This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the U.S. Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men. In this Article, we present original data analysis demonstrating that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches. The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests. As this Article …

Understanding Uncontested Prosecutor Elections, Carissa Byrne Hessick, Sarah Treul, Alexander Love

Faculty Publications

Prosecutors are very powerful players in the criminal justice system. One of the few checks on their power is their periodic obligation to stand for election. But very few prosecutor elections are contested, and even fewer are competitive. As a result, voters are not able to hold prosecutors accountable for their decisions. The problem with uncontested elections has been widely recognized, but little understood. The legal literature has lamented the lack of choice for voters, but any suggested solutions have been based on only anecdote or simple descriptive analyses of election data.

Using a logistic regression analysis, this Article estimates …