Law Commons^™

A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella

Seattle University Law Review

The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and …

Modernizing Capacity Doctrine, Lisa V. Martin

Faculty Publications

Federal capacity doctrine—or the rules establishing whether and how children’s civil litigation proceeds—has largely remained the same for more than a century. It continues to presume that all children are incapable of directing their own cases, and that adults must litigate on children’s behalf. But since that time, our understanding of children, and of adolescents in particular, has significantly evolved. This Article contends that it is well beyond time to modernize the capacity doctrine to better account for the capabilities of adolescents and support their transition to adulthood.

Invisible Article Iii Delinquency: History, Mystery, And Concerns About "Federal Juvenile Courts", Mae C. Quinn, Levi T. Bradford

Journal Articles

This essay is the second in a two-part series focused on our nation’s invisible juvenile justice system—one that operates under the legal radar as part of the U.S. Constitution’s Article III federal district court system. The first publication, Article III Adultification of Kids: History, Mystery, and Troubling Implications of Federal Youth Transfers, examined the little-known practice of prosecuting children as adults in federal courts. This paper will look at the related phenomenon of juvenile delinquency matters that are filed and pursued in our nation’s federal court system. To date, most scholarship evaluating youth prosecution has focused on our country’s juvenile …

Child Welfare And Covid-19: An Unexpected Opportunity For Systemic Change, Jane M. Spinak

Faculty Scholarship

The COVID-19 pandemic has already wrecked greater havoc in poor neighborhoods of color, where pre-existing conditions exacerbate the disease’s spread. Crowded housing and homelessness, less access to health care and insurance, and underlying health conditions are all factors that worsen the chances of remaining healthy.Workers desperate for income continue to work without sufficient protective measures, moving in and out of these neighborhoods, putting themselves and their families at risk. During periods of greater disruption, tensions are heightened and violence more prevalent. Already some experts are warning of an onslaught of child maltreatment cases, citing earlier examples of spikes in foster …

How Courts In Criminal Cases Respond To Childhood Trauma, Deborah W. Denno

Faculty Scholarship

Neurobiological and epidemiological research suggests that abuse and adverse events experienced as a child can increase an adult’s risk of brain dysfunction associated with disorders related to criminality and violence. Much of this research is predictive, based on psychological evaluations of children; few studies have focused on whether or how criminal proceedings against adult defendants consider indicators of childhood trauma. This Article analyzes a subset of criminal cases pulled from an 800-case database created as part of an original, large-scale, empirical research project known as the Neuroscience Study. The 266 relevant cases are assessed to determine the extent to which, …

Juvenile Status Offenses: The Prejudicial Underpinnings Of The Juvenile Justice System, Zachary Auspitz

University of Miami Race & Social Justice Law Review

No abstract provided.

Re-Sentencing Reform: A Comparative Analysis Of The Juvenile Justice System In The United States, United Kingdom, Colombia And Australia, Vianca I. Picart

ILSA Journal of International & Comparative Law

No abstract provided.

Decriminalizing Childhood, Andrea L. Dennis

Scholarly Works

Even though the number of juveniles arrested, tried and detained has recently declined, there are still a large number of delinquency cases, children under supervision by state officials, and children living in state facilities for youth and adults. Additionally, any positive developments in juvenile justice have not been evenly experienced by all youth. Juveniles living in urban areas are more likely to have their cases formally processed in the juvenile justice system rather than informally resolved. Further, the reach of the justice system has a particularly disparate effect on minority youth who tend to live in heavily-policed urban areas.

The …

Stop Making Court A First Stop For Many Low Income Parents, Jane C. Murphy

All Faculty Scholarship

In the wake of the unrest over police misconduct in cities across the country, calls for reform have focused on the criminal justice system — making police, prosecutors, and criminal courts more accountable and just. While much work needs to be done in that arena, too little attention has focused on the ways in which low income families are hurt in civil courts. Many more men, women and children from low income communities of color pass through the doors of our family courts every day than those who interact with the criminal justice system. Some come to court as a …

(Re-)Grasping The Opportunity Interest: Lehr V. Robertson And The Terminated Parent, Lashanda Taylor Adams

Journal Articles

In 1997, an Ohio court terminated Peggy Fugate’s parental rights to her sixyear-old daughter, Selina. At the time, Ms. Fugate, an incarcerated drug abuser, did not fight the order, believing her daughter would be adopted into a clean, stable home.1 However, Selina was never adopted. For the next seven years, Selina had trouble with the police and ran away from her foster home numerous times. While Selina’s life was going downhill in many respects, her mother was rehabilitating. She entered recovery, married, obtained full-time employment and was living in stable housing with enough room for her daughter. Recognizing the strides …

The Unreviewable Irredeemable Child: Why The District Of Columbia Needs Reverse Waiver, Jamie Stevens

University of the District of Columbia Law Review

In 2005 the U.S. Department of Justice estimated that adult criminal courts prosecuted 23,000 cases involving defendants under the age of eighteen nationwide. 2 This means that those defendants faced conviction and sentencing in adult courts. Transfer of those under eighteen into adult criminal court has become the states' first line of defense in the fight against youth crime. However, recent Supreme Court decisions have cast doubt on the wisdom, and even the constitutionality of that approach. Roper v. Simmons held that the Eighth Amendment prohibits the death penalty for anyone under eighteen years of age. 3 Graham v. Florida …

In Defense Of Idea Due Process, Mark C. Weber

Mark C. Weber

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and …

Idea Class Actions After Wal-Mart V. Dukes, Mark C. Weber

Mark C. Weber

Wal-Mart v. Dukes overturned the certification of a class of a million and a half female employees alleging sex discrimination in Wal-Mart’s salary and promotion decisions. The Supreme Court ruled that the case did not satisfy the requirement that a class have a common question of law or fact, and said that the remedy sought was not the type of relief available under the portion of the class action rule permitting mandatory class actions. Over the last two years, courts have struggled with how to apply the ruling, especially how to apply it beyond its immediate context of employment discrimination …

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …

Treating Juveniles Like Juveniles: Getting Rid Of Transfer And Expanded Adult Court Jurisdiction, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The number of juveniles transferred to adult court has skyrocketed in the past two decades and has only recently begun to level off. This symposium article argues that, because it wastes resources, damages juveniles, and decreases public safety, transfer should be abolished. It also argues that the diminished culpability rationale that has had much-deserved success at eliminating the juvenile death penalty and mandatory life without parole for juveniles is not likely to have a major impact on the much more prevalent practices of transferring mid- and older-adolescents to adult court and expanding adult court jurisdiction to adolescents; neither the law …

Punishment First: A Study Of Juvenile Pretrial Detention, Richard V. Foster, David Tanenhaus, Heather Lynn Lusty

McNair Poster Presentations

How society and the legal system should respond to youth crime is a volatile issue. Much research exists on this topic broadly. A largely overlooked subset exists regarding the rights of juveniles in the United States who face pretrial confinement, specifically how juveniles accused of delinquency are treated by the courts. Delinquency or a delinquent act, in the context of this study, is “an act that would be considered a crime if committed by an adult.”7. Adults and children are processed by the courts differently, each with their own rights and court mandated procedures to follow. This report analyzes …

Dealing With The Problem: Discretion Within The Court System, David Disco, Lisa Greer, Socrates Manoukian

Pepperdine Law Review

No abstract provided.

Juvenile Justice Reform 2.0, Tamar R. Birckhead

Tamar R Birckhead

Before the 1954 decision in Brown v. Board of Education, the United States Supreme Court’s exercise of judicial review did not support the notion that constitutional litigation could be an effective instrument of social reform. The Court’s principled rejection of racially segregated public education, however, gave new legitimacy to the concept of judicial review, transforming it from an obstacle into a principal means of achieving social progress. Since then, federal courts have impacted public policy in many areas – from housing, welfare, and transportation to mental health institutions, prisons, and juvenile courts. Yet, there are inherent structural challenges to effecting …

"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain

All Faculty Scholarship

A three-year-old child, while being bathed by her babysitter, innocently mentions that her “pee-pee” hurts. When the babysitter asks the child how she hurt it, she says, “Uncle Ernie (her mother’s boyfriend) told me not to tell.” A subsequent medical examination reveals that the child has gonorrhea, a sexually transmitted disease.

By the time of trial, the child is four and-a-half-years old. When questioned by the trial judge, she cannot explain to the judge’s satisfaction, “the difference between the truth and a lie.” Moreover, she has no long term memory of the incident. The judge rules the child incompetent to …

A Search For The Truth Or Trial By Ordeal: When Prosecutors Cross-Examine Adolescents How Should Courts Respond, Frank E. Vandervort

Articles

It is an axiom of the law that cross-examination is, in John Henry Wigmore's words, the "greatest legal engine ever invented for the discovery of truth." In part because of its perceived utility in getting to the truth of a matter, courts are generally reluctant, despite broad authority to do so, to step in and to govern the conduct of cross-examination. But is cross-examination invariably calculated to ascertain the truth? While most lawyers are familiar with Wigmore's famous quotation, few are familiar with the caveat that shortly follows it: "A lawyer can do anything with cross-examination.. . . He may, …

Culture Clash: The Challenge Of Lawyering Across Difference In Juvenile Court, Tamar R. Birckhead

Tamar R Birckhead

In analyzing the causes of wrongful convictions of youth in juvenile court, the role of the defense attorney can be overlooked and its importance underestimated. Although juvenile defenders are trained to advocate based on their young client‟s expressed interest rather than relying on what they deem to be in the child‟s best interest, this basic tenet is often more challenging to follow than is commonly acknowledged. The norms of effective criminal defense practice—which emphasize rigorous oral and written advocacy with little mention of whether the client has learned a lesson from the experience—stand in direct contrast to the informal culture …

Child Custody Evaluations: Review Of The Literature And Annotated Bibliography, Barbara A. Babb, Gloria Danziger, Judith D. Moran, J. Mason Weeda, William A. Mack

All Faculty Scholarship

This review of custody evaluation literature encompasses a number of perspectives gleaned from the following: practitioners who perform the evaluations; the professional organizations that recognize the necessity to establish performance standards for practitioners; and the judges who depend on the findings and recommendations in the evaluations to assist with difficult custody decisions.

General agreement exists among practitioners about the components of a comprehensive evaluation (interviews of adults responsible for child care, interviews of children and their preferences, life histories, observations, psychological testing, document review, and collateral source data), though little consensus exists about the details of performance concerning a given …

Changing The Narrative: Convincing Courts To Distinguish Between Misbehavior And Criminal Conduct In School Referral Cases, Marsha L. Levick, Robert G. Schwartz

University of the District of Columbia Law Review

No abstract provided.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Parental Consent And Notification Laws In The Abortion Context: Rejecting The "Maturity" Standard In Judicial Bypass Proceedings, Anna Bonny

ExpressO

The choice to become a parent, to give a baby up for adoption, or to terminate a pregnancy presents a life-altering decision for a minor. The majority of states require minors to engage their parents or legal guardians in their choice to obtain an abortion, but not in decisions to give their babies up for adoption or to become parents. Though the Supreme Court has held that parental consent and notification laws do not infringe on a minor's constitutional rights if judicial bypass options are available, the reality of these judicial proceedings demonstrates a biased and unworkable legal avenue. Even …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Rethink The Laws Relating To Fathers (Change: With The Decline In Married Mothers And Traditional Families, The Legal Image Of Dads Needs Re-Examination), Jane C. Murphy

All Faculty Scholarship

This "marital presumption" permitted courts to assume a set of biological facts in the name of preserving the sanctity and stability of what was assumed to be the cornerstone of a healthy society — the traditional family of husband, wife and children. In the last decades of the 20th century, science developed paternity testing with results approaching certainty. Despite the availability of DNA testing, the marital presumption is still used in many courtrooms to answer the question of who is the legal father. What one scholar has called "the law's struggle to preserve the fiction of an older moral order" …

Too Many Rights Or Not Enough--A Study Of The Juvenile Related Decisions Of The West Virginia Supreme Court Of Appeals, Paul Mones

West Virginia Law Review

No abstract provided.

Arkansas Juvenile Courts: Do Lay Judges Satisfy Due Process In Delinquency Cases, Paula J. Casey

University of Arkansas at Little Rock Law Review

No abstract provided.