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Full-Text Articles in Law

Feigned Consensus: Usurping The Law In Shaken Baby Syndrome/Abusive Head Trauma Prosecutions, Keith A. Findley, D. Michael Risinger, Patrick D. Barnes, Julie A. Mack, David A. Moran, Barry C. Scheck, Thomas L. Bohan Dec 2020

Feigned Consensus: Usurping The Law In Shaken Baby Syndrome/Abusive Head Trauma Prosecutions, Keith A. Findley, D. Michael Risinger, Patrick D. Barnes, Julie A. Mack, David A. Moran, Barry C. Scheck, Thomas L. Bohan

Articles

Few medico-legal matters have generated as much controversy--both in the medical literature and in the courtroom--as Shaken Baby Syndrome (SBS), now known more broadly as Abusive Head Trauma (AHT). The controversies are of enormous significance in the law because child abuse pediatricians claim, on the basis of a few non-specific medical findings supported by a weak and methodologically flawed research base, to be able to “diagnose” child abuse, and thereby to provide all of the evidence necessary to satisfy all of the legal elements for criminal prosecution (or removal of children from their parents). It is a matter, therefore, in ...


Covid And Crime: An Early Empirical Look, David S. Abrams Aug 2020

Covid And Crime: An Early Empirical Look, David S. Abrams

Faculty Scholarship at Penn Law

We collect data from over 25 large cities in the U.S. and document the short-term impact of the COVID-19 pandemic on crime. There is a widespread immediate drop in both criminal incidents and arrests most heavily pronounced among drug crimes, theft, residential burglaries, and most violent crimes. The decline appears to precede most stay-at-home orders, and arrests follow a similar pattern as reports. We find no decline in homicides and shootings, and an increase in non-residential burglary and car theft in most cities, suggesting that criminal activity was displaced to locations with fewer people. Pittsburgh, New York City, San ...


Identifying Liars Through Automatic Decoding Of Children's Facial Expressions, Kaila Bruer, Sarah Zanette, Xiaopan Ding, Thomas D. Lyon, Kang Lee Jul 2020

Identifying Liars Through Automatic Decoding Of Children's Facial Expressions, Kaila Bruer, Sarah Zanette, Xiaopan Ding, Thomas D. Lyon, Kang Lee

University of Southern California Legal Studies Working Paper Series

This study explored whether children’s (N=158; 4-9 years-old) nonverbal facial expressions can be used to identify when children are being deceptive. Using a computer vision program to automatically decode children’s facial expressions according to the Facial Action Coding System, this study employed machine learning to determine whether facial expressions can be used to discriminate between children who concealed breaking a toy(liars) and those who did not break a toy(nonliars). Results found that, regardless of age or history of maltreatment, children’s facial expressions could accurately (73%) distinguished between liars and nonliars. Two emotions, surprise and ...


Order Of Encoding Predicts Young Children's Responses To Sequencing Questions, J. Zoe Klemfuss, Kelly Mcwilliams, Hayden M. Henderson, Alma P. Olaguez, Thomas D. Lyon Jul 2020

Order Of Encoding Predicts Young Children's Responses To Sequencing Questions, J. Zoe Klemfuss, Kelly Mcwilliams, Hayden M. Henderson, Alma P. Olaguez, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

We propose that young children exhibit an order of encoding bias, such that they are inclined to report or act out events in the order in which they were originally encoded. This bias helps to explain why children assume that events they first hear described are in chronological order and why they often appear to understand “after” better than “before” when they are questioned about experienced events. Asking children about a sequence of events as a whole (in particular using “first”) could avoid order of encoding biases, because children would not have to answer questions about events within the sequence ...


Forensic Interviewers' Difficulty With Invitations: Faux Invitations And Negative Recasting, Hayden M. Henderson, Natalie Russo, Thomas D. Lyon Jul 2020

Forensic Interviewers' Difficulty With Invitations: Faux Invitations And Negative Recasting, Hayden M. Henderson, Natalie Russo, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

An ongoing challenge for forensic interviewers is to maximize their use of invitations, such as requests that the child “tell me more about” details mentioned by the child. Examining 434 interviews with 4- to 12-year-old children questioned about abuse, this study analyzed (1) faux invitations, in which interviewers prefaced questions with “tell me” but then asked a non-invitation, (2) negative recasts, in which interviewers started to ask an invitation but then recast the question as a wh- or option-posing question and (3) other aspects of questions that may relate to productivity independent of their status as invitations. About one fourth ...


State Prosecutors At The Center Of Mass Imprisonment And Criminal Justice Reform, Nora V. Demleitner May 2020

State Prosecutors At The Center Of Mass Imprisonment And Criminal Justice Reform, Nora V. Demleitner

Scholarly Articles

State prosecutors around the country have played a crucial role in mass imprisonment. Little supervision and virtually unsurpassed decision making power have provided them with unrivaled influence over the size, growth, and composition of our criminal justice system. They decide which cases to prosecute, whether to divert a case, whether to offer a plea, and what sentence to recommend. Their impact does not stop at sentencing. They weigh in on alternative dockets, supervision violations, parole release, and even clemency requests. But they are also part of a larger system that constrains them. Funding, judicial limits on their power, and legislative ...


Law School News: Adjunct Professor Of The Year: David Coombs 05-13-2020, Michael M. Bowden May 2020

Law School News: Adjunct Professor Of The Year: David Coombs 05-13-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.


Young Children's Ability To Describe Intermediate Clothing Placement, Breanne E. Wylie, Stacia N. Stolzenberg, Kelly Mcwilliams, Angela Evans, Thomas D. Lyon May 2020

Young Children's Ability To Describe Intermediate Clothing Placement, Breanne E. Wylie, Stacia N. Stolzenberg, Kelly Mcwilliams, Angela Evans, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

Children’s ability to adequately describe clothing placement is essential to evaluating their allegations of sexual abuse. Intermediate clothing placement (partially removed clothing) may be difficult for young children to describe, requiring more detailed explanations to indicate the location of clothing (e.g., the clothes were pulled down to the knees). The current study investigated 172 3- to 6-year-olds’ descriptions of clothing placement when responding to commonly used questions (yes/no, forced-choice, open-choice, where), as well as children’s on-off response tendencies when describing intermediate placement (i.e.., labeling the clothing as fully on or off). Results revealed that "where ...


Public Matters? Comparing Decision-Making By Appointed And Elected Prosecutors In Cases Of Deadly Use-Of-Force By Police In The Hartford Judicial District And Suffolk County, Andrew E. Dubsky May 2020

Public Matters? Comparing Decision-Making By Appointed And Elected Prosecutors In Cases Of Deadly Use-Of-Force By Police In The Hartford Judicial District And Suffolk County, Andrew E. Dubsky

Honors Scholar Theses

This thesis dissects prosecutor discretion for appointed and elected prosecutors after a “catalyst” event shifts public opinion. Previous studies have shown that elected prosecutors are more likely to use discretion favoring the opinion of the public than their appointed counterparts (Bandyopadhyay 2014, Nelson 2014, and Valenti 2011). Because elected prosecutors are more likely to follow public opinion, they should also be more likely to respond to the demands of the public than their appointed counterparts. In effect, elected prosecutors are expected to be more likely to exercise discretion in their charging and prosecuting. To test this, I use the 2014 ...


A Formulaic Recitation Will Not Do: Why, As A Matter Of Law, Federal Rule Of Criminal Procedure 7(C) Should Be Interpreted To Be At Least As Stringent As Federal Rule Of Civil Procedure 8(A), Charles Eric Hintz Apr 2020

A Formulaic Recitation Will Not Do: Why, As A Matter Of Law, Federal Rule Of Criminal Procedure 7(C) Should Be Interpreted To Be At Least As Stringent As Federal Rule Of Civil Procedure 8(A), Charles Eric Hintz

Faculty Scholarship at Penn Law

When a plaintiff files a civil lawsuit in federal court, her complaint must satisfy certain minimum standards. Specifically, under the prevailing understanding of Federal Rule of Civil Procedure 8(a), a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face, rather than mere conclusory statements tracking the elements of a cause of action. Given the infinitely higher stakes involved in criminal cases, one might think that at least as robust a requirement would exist in that context. But, in fact, a weaker pleading standard reigns. Under the governing interpretation of Federal ...


The Adversarial Mindset, Dan Simon, Minwoo Ahn, Douglas M. Stenstrom, Stephen J. Read Apr 2020

The Adversarial Mindset, Dan Simon, Minwoo Ahn, Douglas M. Stenstrom, Stephen J. Read

University of Southern California Legal Studies Working Paper Series

Many social outcomes are reached by means of competitions between opposing actors. While the positive effects of competition are beyond dispute, this paper contends that competitive situations also trigger a particular psychological mindset that can distort contestants’ judgment and lead to suboptimal courses of action. The paper presents a theoretical framework that consists of a myside bias, by which people adopt a self-serving view of the competition, evaluate themselves favorably, and evaluate their counterpart unfavorably. The framework also proposes the construct of otherside bias, by which people impute to their counterparts distortions that are similar, but opposite, to their own ...


Evidence, Arrest Circumstances, And Felony Cocaine Case Processing, Jacqueline G. Lee, Alexander Testa Apr 2020

Evidence, Arrest Circumstances, And Felony Cocaine Case Processing, Jacqueline G. Lee, Alexander Testa

Criminal Justice Faculty Publications and Presentations

Case evidence and situational arrest characteristics are widely speculated to influence courtroom actor decisions, yet such measures are infrequently included in research. Using new data on felony cocaine cases from an urban county in a Southern non-guideline state, this study examines how physical evidence and arrest circumstances affect three stages of case processing: initial charge type, charge reduction, and sentence length. The influence of evidence appeared strongest at the early stage when prosecutors chose the appropriate charge, though certain evidentiary and arrest measures continued to influence later decisions. Charge reductions were driven mostly by legal factors, and while guilt should ...


Supreme Court Clerks And The Death Penalty, Matthew Tokson Apr 2020

Supreme Court Clerks And The Death Penalty, Matthew Tokson

Utah Law Faculty Scholarship

This Essay is part of GW's Supreme Court Clerks at 100 symposium.

The Supreme Court is involved, directly or otherwise, with virtually every execution carried out in the United States. Most executions are appealed to the Court, and inmates commonly request a stay of execution a few days or hours before their scheduled death. The clerks review these requests and recommend a ruling.

A few days after I arrived at the Court, I got my first death penalty assignment. As the date drew near, the defendant asked the Court to stay his execution. I opened his file and began ...


The Misplaced Trust In The Doj's Expertise On Criminal Justice Policy, Shon Hopwood Apr 2020

The Misplaced Trust In The Doj's Expertise On Criminal Justice Policy, Shon Hopwood

Georgetown Law Faculty Publications and Other Works

As should be clear, this is less a book review and more an in-depth exploration of a key point Professor Barkow makes in Prisoners of Politics as applied to the federal criminal justice system. Sure, we need expertise in order to make data-driven criminal justice policy decisions--as Barkow puts it, “[t]he key is to create and foster an institutional framework that prioritizes data” and “expertise” so as to “create incentives for key decisionmakers to be accountable for real results” (pp. 14-15). But in creating reforms, the kindof expertise is also important. Many federal policymakers currently view the DOJ ...


Valdez-Jimenez V. Eighth Jud. Dist. Ct.,163 Nev. Adv. Op. 20 (April 9, 2020), Katrina Weil Apr 2020

Valdez-Jimenez V. Eighth Jud. Dist. Ct.,163 Nev. Adv. Op. 20 (April 9, 2020), Katrina Weil

Nevada Supreme Court Summaries

The Court determined what process is constitutionally required when a district court sets bail in an amount that the defendant cannot afford, resulting in pretrial detention. The Court found that bail may only be imposed where it is necessary to reasonably ensure the defendant’s appearance at court proceedings or to reasonably protect the community. If a defendant remains in custody after arrest they are (1) entitled to an individualized hearing, where (2) the State must prove by clear and convincing evidence that bail, rather than less restrictive conditions, is necessary to ensure the defendant’s appearance at future court ...


Martinez Guzman V. Second Judicial Dist. Court, 136 Nev. Adv. Op. 12 (Mar. 26, 2020), John Mccormick-Huhn Mar 2020

Martinez Guzman V. Second Judicial Dist. Court, 136 Nev. Adv. Op. 12 (Mar. 26, 2020), John Mccormick-Huhn

Nevada Supreme Court Summaries

The Court clarified the ambiguity of the meaning “territorial jurisdiction,” a term of art found in NRS 172.105. The Court held that NRS 172.105 incorporates Nevada’s venue statutes and grants a grand jury the authority to “inquire into a [criminal] offense so long as the district court that empaneled the grand jury may appropriately adjudicate the defendant’s guilt for that particular offense.”


Confronting Memory Loss, Paul F. Rothstein, Ronald J. Coleman Feb 2020

Confronting Memory Loss, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The Confrontation Clause of the Sixth Amendment grants “the accused” in “all criminal prosecutions” a right “to be confronted with the witnesses against him.” A particular problem occurs when there is a gap in time between the testimony that is offered, and the cross-examination of it, as where, pursuant to a hearsay exception or exemption, evidence of a current witness’s prior statement is offered and for some intervening reason her current memory is impaired. Does this fatally affect the opportunity to “confront” the witness? The Supreme Court has, to date, left unclear the extent to which a memory-impaired witness ...


The Saga Of Pennsylvania’S “Willie Horton” And The Commutation Of Life Sentences In The Commonwealth, Regina Austin Feb 2020

The Saga Of Pennsylvania’S “Willie Horton” And The Commutation Of Life Sentences In The Commonwealth, Regina Austin

Faculty Scholarship at Penn Law

In 1994, Reginald McFadden’s sentence of life without the possibility of parole was commuted by the governor of Pennsylvania, and he was shipped to New York to be supervised by a bunch of amateurs. Within roughly 90 days, he murdered two people, raped and kidnapped a third, and possibly murdered a fourth. McFadden proved to be Lieutenant Governor Mark Singel’s “Willie Horton.” Singel, who had voted for McFadden’s release as a member of the Board of Pardons, lost the gubernatorial election to his Republican opponent who ran on a “life-means-life” platform. Compounding the tragedy of McFadden’s ...


Setting The Ground Rules: Use And Practice Of Ground Rules In Child Forensic Interviews, Melanie Fessinger, Kelly Mcwilliams, Faizun N. Bakth, Thomas D. Lyon Feb 2020

Setting The Ground Rules: Use And Practice Of Ground Rules In Child Forensic Interviews, Melanie Fessinger, Kelly Mcwilliams, Faizun N. Bakth, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

Most child forensic interviewing protocols recommend that interviewers administer a series of ground rules to emphasize concepts that are important to accurately answering interview questions. Limited research has examined whether interviewers follow ground rules recommendations in real-world forensic interviews. In this study, we examined how often highly trained interviewers presented and practiced each of the recommended ground rules. We also examined whether children accurately responded to practice questions. We coded transcripts from 241 forensic interviews of 4- to 12-year-old children conducted by interviewers in the United States who were largely trained using the Ten Step Investigative Interview (Lyon, 2014). Results ...


Revitalizing Fourth Amendment Protections: A True Totality Of The Circumstances Test In § 1983 Probable Cause Determinations, Ryan Sullivan Feb 2020

Revitalizing Fourth Amendment Protections: A True Totality Of The Circumstances Test In § 1983 Probable Cause Determinations, Ryan Sullivan

College of Law, Faculty Publications

The Article analyzes claims of police misconduct and false arrest, specifically addressing the issue of whether a police officer may ignore evidence of an affirmative defense, such as self-defense, when determining probable cause for an arrest. The inquiry most often arises in § 1983 civil claims for false arrest where the officer was aware of some evidence a crime had been committed, but was also aware of facts indicating the suspect had an affirmative defense to the crime observed. In extreme cases, the affirmative defense at issue is actually self-defense in response to the officer’s own unlawful conduct. As police ...


The Expansive Reach Of Pretrial Detention, Paul Heaton Feb 2020

The Expansive Reach Of Pretrial Detention, Paul Heaton

Faculty Scholarship at Penn Law

Today we know much more about the effects of pretrial detention than we did even five years ago. Multiple empirical studies have emerged that shed new light on the far-reaching impacts of bail decisions made at the earliest stages of the criminal adjudication process. The takeaway from this new generation of studies is that pretrial detention has substantial downstream effects on both the operation of the criminal justice system and on defendants themselves, causally increasing the likelihood of a conviction, the severity of the sentence, and, in some jurisdictions, defendants’ likelihood of future contact with the criminal justice system. Detention ...


Teaching Professional Responsibility Through Theater, Michael Millemann, Elliott Rauh, Robert Bowie Jr. Feb 2020

Teaching Professional Responsibility Through Theater, Michael Millemann, Elliott Rauh, Robert Bowie Jr.

Faculty Scholarship

This article is about ethics-focused, law school courses, co-taught with a theater director, in which students wrote, produced and performed in plays. The plays were about four men who, separately, were wrongfully convicted, spent decades in prison, and finally were released and exonerated, formally (two) or informally (two).

The common themes in these miscarriages of justice were that 1) unethical conduct of prosecutors (especially failures to disclose exculpatory evidence) and of defense counsel (especially incompetent representation) undermined the Rule of Law and produced wrongful convictions, and 2) conversely, that the ethical conduct of post-conviction lawyers and law students helped to ...


Republican Attorneys General Association V. Las Vegas Metropolitan Police Department, 136 Nev. Adv. Op. 3 (Feb. 20, 2020), Nicholas Hagenkord Feb 2020

Republican Attorneys General Association V. Las Vegas Metropolitan Police Department, 136 Nev. Adv. Op. 3 (Feb. 20, 2020), Nicholas Hagenkord

Nevada Supreme Court Summaries

The Court determined that (1) the district court did not err in denying appellant Republican Attorneys General Association’s (RAGA) petition for a writ of mandamus under the Nevada Public Records Act (NPRA) seeking bodycam footage regarding juveniles and former State Senator Aaron Ford’s interactions with police; and (2) the district court abused its discretion in denying RAGA’s request for other requested records by not assessing whether these records contain any nonconfidential material.


Can The Federal Government Use The Generic Wire Fraud Statute To Prosecute Public Officials For Corrupt Activities That Are Conducted For Political Rather Than Private Gain?, Nora V. Demleitner Jan 2020

Can The Federal Government Use The Generic Wire Fraud Statute To Prosecute Public Officials For Corrupt Activities That Are Conducted For Political Rather Than Private Gain?, Nora V. Demleitner

Scholarly Articles

The defendants, two former New Jersey officials convicted in “Bridgegate,” challenge the scope of federal prosecutorial power under the generic wire fraud statute, 18 U.S.C. § 1343. They argue that the government sidestepped the Court’s explicit prohibition on inquiries into an official’s real reasons for an official act, unless bribery or kickbacks are involved. The defendants urge the Court to foreclose the government from circumventing limitations on the honest-services fraud doctrine under McNally v. United States, 483 U.S. 350 (1987), and Skilling v. United States, 561 U.S. 358 (2010). The government argues that the defendants ...


Police Procedural Justice, Lawyer Procedural Justice, Judge Procedural Justice, And Satisfaction With The Criminal Justice System: Findings From A Neglected Region Of The World, Daniel K. Pryce, George Wilson Jan 2020

Police Procedural Justice, Lawyer Procedural Justice, Judge Procedural Justice, And Satisfaction With The Criminal Justice System: Findings From A Neglected Region Of The World, Daniel K. Pryce, George Wilson

Sociology & Criminal Justice Faculty Publications

Although the impact of procedural justice on citizens’ satisfaction with the police and other branches of the criminal justice system has been tested in several geopolitical contexts, this is the first study to examine the relative impacts of police procedural justice, lawyer procedural justice, and judge procedural justice on satisfaction with a country’s criminal justice system. To assess the universal applicability of procedural justice, scholars must carry out research in all geopolitical regions. However, subSaharan Africa appears to be a region that scholars have neglected for far too long. As a result, the current study assesses the relative impacts ...


Race Decriminalization And Criminal Legal System Reform, Michael Pinard Jan 2020

Race Decriminalization And Criminal Legal System Reform, Michael Pinard

Faculty Scholarship

There is emerging consensus that various components of the criminal legal system have gone too far in capturing and punishing masses of Black men, women, and children. This evolving recognition has helped propel important and pathbreaking criminal legal reforms in recent years, with significant bipartisan support. These reforms have targeted the criminal legal system itself. They strive to address the pain inflicted by the system. However, by concerning themselves solely with the criminal legal system, these reforms do not confront the reality that Black men, women, and children will continue to be devastatingly overrepresented in each stitch of the system ...


Post-Genocide Justice In Rwanda, Mark A. Drumbl Jan 2020

Post-Genocide Justice In Rwanda, Mark A. Drumbl

Scholarly Articles

The Rwandan genocide triggered a vast number of criminal and quasi-criminal prosecutions. Rwanda therefore constitutes an example of a robust and rapid implementation of criminal accountability for atrocity. Rwanda, moreover, departed from other countries – such as South Africa – by eschewing a truth and reconciliation process as part of a transitional justice process. This chapter unpacks three levels of judicialization that promoted criminal responsibility for atrocity in Rwanda: the ICTR, specialized chambers of national courts, and gacaca proceedings. The ICTR indicted roughly 90 individuals, the national courts convicted in the area of 10,000 defendants (with some proceedings remaining ongoing), while ...


Memorializing Dissent: Justice Pal In Tokyo, Mark A. Drumbl Jan 2020

Memorializing Dissent: Justice Pal In Tokyo, Mark A. Drumbl

Scholarly Articles

Memorials and monuments are envisioned as positive ways to honor victims of atrocity. Such displays are taken as intrinsically benign, respectful, and in accord with the arc of justice. Is this correlation axiomatic, however? Art, after all, may be a vehicle for multiple normativities, contested experiences, and variable veracities. Hence, in order to really speak about the relationships between the aesthetic and international criminal law, one must consider the full range of initiatives—whether pop-up ventures, alleyway graffiti, impromptu ceremonies, street art, and grassroots public histories—prompted by international criminal trials. Courts may be able to stage their own outreach ...


The Meaning Of A Misdemeanor In A Post-Ferguson World: Evaluating The Reliability Of Prior Conviction Evidence, John D. King Jan 2020

The Meaning Of A Misdemeanor In A Post-Ferguson World: Evaluating The Reliability Of Prior Conviction Evidence, John D. King

Scholarly Articles

Despite evidence that America’s low-level courts are overburdened, unreliable, and structurally biased, sentencing judges continue to uncritically consider a defendant’s criminal history in fashioning an appropriate punishment. Misdemeanor courts lack many of the procedural safeguards that are thought to ensure accuracy and reliability. As with other stages of the criminal justice system, people of color and poor people are disproportionately burdened with the inaccuracies of the misdemeanor system.

This Article examines instances in which sentencing courts have looked behind the mere fact of a prior conviction and assessed whether that prior conviction offered any meaningful insight for the ...


Gideon: Public Law Safeguard, Not A Criminal Procedural Right, Kari E. Hong Jan 2020

Gideon: Public Law Safeguard, Not A Criminal Procedural Right, Kari E. Hong

Boston College Law School Faculty Papers

What is accepted as a near-truism, people will parrot that appointed counsel is for criminal matters but not civil ones. But the language in the Sixth Amendment does not explicitly draw the line between who does and does not get an appointed counsel. If there is a right of counsel to prevent wrongful incarceration for those charged with felonies, it is difficult to parse out criminal trials from all other forums that result in the same, if not greater, risk of innocent people wrongfully convicted and confined. How is it possible to provide appointed counsel for criminal felony trials, and ...