Digital Commons Network^™

The Shadow Bargainers, Jenny Roberts, Ronald F. Wright, Betina Cutaia Wilkinson

Articles in Law Reviews & Other Academic Journals

Plea bargaining happens in almost every criminal case, yet there is little empirical study about what actually happens when prosecutors and defense lawyers negotiate. This Article looks into the bargaining part of plea bargaining. It reports on the responses of over 500 public defenders who participated in our nationwide survey about their objectives and practices during plea negotiations.

The survey responses create a rare empirical test of a major tenet of negotiation theory, the claim that attorneys bargain in the "shadow of the trial." This is a theory that some defenders embrace and others reject. Describing the factors they believe …

Confrontation In The Age Of Plea Bargaining [Comments], William Ortman

Law Faculty Research Publications

No abstract provided.

Symposium: Expanding Compassion Beyond The Covid-19 Pandemic, Jenny Roberts

Articles in Law Reviews & Other Academic Journals

Compassionate relief matters. It matters so that courts may account for tragically unforeseeable events, as when an illness or disability renders proper care impossible while a defendant remains incarcerated, or when family tragedy leaves an inmate the sole caretaker for an incapacitated partner or minor children. It matters too, as present circumstances make clear, when public-health calamities threaten inmates with literal death sentences. It matters even when no crisis looms, but simply when continued incarceration would be "greater than necessary" to achieve the ends of justice.

Structural Sensor Surveillance, Andrew Guthrie Ferguson

Articles in Law Reviews & Other Academic Journals

City infrastructure is getting smarter. Embedded smart sensors in roads, lampposts, and electrical grids offer the government a way to regulate municipal resources and the police a new power to monitor citizens. This structural sensor surveillance, however, raises a difficult constitutional question: Does the creation of continuously-recording, aggregated, long-term data collection systems violate the Fourth Amendment? After all, recent Supreme Court cases suggest that technologies that allow police to monitor location, reveal personal patterns, and track personal details for long periods of time are Fourth Amendment searches which require a probable cause warrant. This Article uses the innovation of smart …

Quantifying Reasonable Doubt, Daniel Pi, Francesco Parisi, Barbara Luppi

Law Faculty Scholarship

This article contributes in three ways to the prior literature on the reasonable doubt standard. First, it synthesizes the insular strands of historical, economic, jurisprudential, and doctrinal scholarship on reasonable doubt. Second, it advances a conception of the criminal standard of proof designed to avoid the various problems affecting earlier attempts to devise meaningful definitions of reasonable doubt. The definition proposed is that “reasonable doubt” be the standard of proof which minimizes the aggregate subjective expected social cost of false conviction and false acquittal. Judicial pronouncements of Blackstonian ratios (for example, that it is better that ten guilty go free …

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Faculty Scholarship

No abstract provided.

Hope [Reviews], Wendy A. Bach

Scholarly Works

No abstract provided.

Tracing The Roots Of The Criminalization Of Poverty [Reviews], Wendy A. Bach

Scholarly Works

No abstract provided.

Is Miranda Good News Or Bad News For The Police: The Usefulness Of Empirical Evidence, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The U.S. Supreme Court’s landmark case of Miranda v. Arizona created a culture in which police officers regularly warn arrestees that they have a right to remain silent, that anything they say can and will be used against them in a court of law, that they have the right to an attorney, and that if they cannot afford one, an attorney will be appointed to them. These Miranda warnings have a number of possible effects. The warnings are meant to inform suspects about negative consequences associated with speaking to the police without the assistance of counsel. In this sense they …

Information Overload, Multi-Tasking, And The Socially Networked Jury: Why Prosecutors Should Approach The Media Gingerly, Andrew E. Taslitz

School of Law Faculty Publications

The rise of computer technology, the internet, rapid news dissemination, multi-tasking, and social networking have wrought changes in human psychology that alter how we process news media. More specifically, news coverage of high-profile trials necessarily focuses on emotionally-overwrought, attention-grabbing information disseminated to a public having little ability to process that information critically. The public’s capacity for empathy is likewise reduced, making it harder for trial processes to overcome the unfair prejudice created by the high-profile trial. Market forces magnify these changes. Free speech concerns limit the ability of the law to alter media coverage directly, and the tools available to …

High Expectations And Some Wounded Hopes: The Policy And Politics Of A Uniform Statute On Videotaping Custodial Interrogations, Andrew E. Taslitz

School of Law Faculty Publications

Much has been written about the need to videotape the entire process of police interrogating suspects. Videotaping discourages abusive interrogation techniques, improves police training in proper techniques, reduces frivolous suppression motions because facts are no longer in dispute, and improves jury decision making about the voluntariness and accuracy of a confession. Despite these benefits, only a small, albeit growing, number of states have adopted legislation mandating electronic recording of the entire interrogation process. In the hope of accelerating legislative adoption of this procedure and of improving the quality of such legislation, the Uniform Law Commission (ULC), formerly the National Conference …

The Prioritization Of Criminal Over Civil Counsel And The Discounted Danger Of Private Power, Kathryn A. Sabbeth

Faculty Publications

No abstract provided.

The Politics Of Narrative: Law And The Representation Of Mexican Criminality, Deborah Weissman

Faculty Publications

No abstract provided.

Potential Innocence: Making The Most Of A Bleak Environment For Public Support Of Indigent Defense, Robert P. Mosteller

Faculty Publications

No abstract provided.

The Sixth Amendment Rights To Fairness: The Touchstones Of Effectiveness And Pragmatism, Robert P. Mosteller

Faculty Publications

No abstract provided.

Law, Social Movements, And The Political Economy Of Domestic Violence, Deborah M. Weissman

Faculty Publications

No abstract provided.

Short Of The Goal: New York's Legislation To Compel Hiv Testing From Accused Sex Offenders, Joseph E. Fahey

College of Law - Faculty Scholarship

"Short of the Goal: New York's Legislation to Compel HIV Testing from Accused Sex Offenders" examines New York's newly enacted legislation allowing for such court ordered testing upon the filing of charges and prior to conviction.Although this legislation was designed to augment and improve the existing legislation which allows it only post-conviction, it contains significant flaws which leave it short of its intended result. This article examines the legislation and its flaws.

Throwing Away The Key: An Examination Of New York's Sex Offender Civil Commitment Law, Joseph E. Fahey

College of Law - Faculty Scholarship

This article examines New York's newly enacted sex offender civil commitment law entitled"Sex Offenders Requiring Civil Commitment or Supervision." It examines the statute in detail, commenting on its various statutory and constiutional defeciencies, as well as its potential impact on the New York State Unified Court System.

It's Complicated: Privacy And Domestic Violence, Kimberly D. Bailey

All Faculty Scholarship

This Article challenges the notion that there is no role for privacy in the domestic violence context. Privacy is a complicated concept that has both positive and negative aspects, and this Article examines the value that more privacy could provide for domestic violence victims. While privacy was historically used as a shield for batterers, more privacy for domestic violence victims could protect their personhood, ensuring that they are treated with dignity and respect. In addition, current mandatory criminal justice policies have become so intrusive in many victims’ lives that limitations are needed to prevent the threat of state abuse. These …

Prosecution Appeals Of Court-Ordered Midtrial Acquittals: Permissible Under The Double Jeopardy Clause?, David S. Rudstein

All Faculty Scholarship

This article considers whether a statute or rule of court allowing the prosecution to appeal a directed verdict of not guilty, or its equivalent, would be constitutional under the Double Jeopardy Clause.

Notice-And-Comment Sentencing, Stephanos Bibas, Richard A. Bierschbach

All Faculty Scholarship

No abstract provided.

Responding To Mccleskey And Batson: The North Carolina Racial Justice Act Confronts Racial Peremptory Challenges In Death Cases, Robert P. Mosteller

Faculty Publications

No abstract provided.

Apprendi And The Dynamics Of Guilty Pleas, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

Public Wrongs And The ‘Criminal Law’S Business’: When Victims Won’T Share, Michelle Madden Dempsey

Working Paper Series

Amongst the many valuable contributions that Professor Antony Duff has made to criminal law theory is his account of what it means for a wrong to be public in character. In this chapter, I sketch an alternative way of thinking about criminalization, one which attempts to remain true to the important insights that illuminate Duff’s account, while providing (it is hoped) a more satisfying explanation of cases involving victims who reject the criminal law’s intervention.

Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill

Working Paper Series

My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys—and this is what the proponents of a duty to vet …

Little Girl Lost: Las Vegas Metro Police Vice Division And The Use Of Material Witness Holds Against Teenaged Prostitutes, Geneva O. Brown

Law Faculty Publications

This article explores the Las Vegas Metro Police Vice Division routine use of material witness holds to detain young prostitutes. The Juvenile court places the girls on material witness holds seeking their cooperation in the prosecution of their traffickers and pimps. The girls languish in detention awaiting the outcome of the adult cases in which they are the central or only witness. The use of material witness holds is reviewed through the historical perspective of government response to prostitution and the history of material witness holds. The article then argues that the detention of the girls, sometimes without charges, is …

Response To Beth Richie’S Black Feminism, Gender Violence And The Build-Up Of A Prison Nation, Kimberly D. Bailey

All Faculty Scholarship

No abstract provided.

Lost In Translation: Domestic Violence, "The Personal Is Political," And The Criminal Justice System, Kimberly D. Bailey

All Faculty Scholarship

No abstract provided.

The Myth Of The Fully Informed Rational Actor, Stephanos Bibas

All Faculty Scholarship

No abstract provided.

Two Cheers, Not Three For Sixth Amendment Originalism, Stephanos Bibas

All Faculty Scholarship

No abstract provided.