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Full-Text Articles in Law

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey Fagan Jan 2019

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results ...


The State Of The Death Penalty, Ankur Desai, Brandon L. Garrett Jan 2019

The State Of The Death Penalty, Ankur Desai, Brandon L. Garrett

Faculty Scholarship

The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s. In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty. What explains this remarkable and quite unexpected trend? In this Article, we present new analysis of state-level legislative changes that might have been expected ...


Why Do Prosecutors Say Anything? The Case Of Corporate Crime, Samuel W. Buell Jan 2018

Why Do Prosecutors Say Anything? The Case Of Corporate Crime, Samuel W. Buell

Faculty Scholarship

Criminal procedure law does not require prosecutors to speak outside of court. Professional regulations and norms discourage and sometimes prohibit prosecutors from doing so. Litigation often rewards strategic and tactical maintenance of the element of surprise. Institutional incentives encourage bureaucrats, especially those not bound by procedural requirements of administrative law, to decline to commit themselves to future action. In the always exceptional field of corporate crime, however, the Department of Justice and federal line prosecutors have developed practices of signaling and describing their exercise of discretion through detailed press releases, case filings, and policy documents. This contribution to a symposium ...


Honesty Without Truth: Lies, Accuracy, And The Criminal Justice Process, Lisa Kern Griffin Jan 2018

Honesty Without Truth: Lies, Accuracy, And The Criminal Justice Process, Lisa Kern Griffin

Faculty Scholarship

Focusing on “lying” is a natural response to uncertainty but too narrow of a concern. Honesty and truth are not the same thing and conflating them can actually inhibit accuracy. In several settings across investigations and trials, the criminal justice system elevates compliant statements, misguided beliefs, and confident opinions while excluding more complex evidence. Error often results. Some interrogation techniques, for example, privilege cooperation over information. Those interactions can yield incomplete or false statements, confessions, and even guilty pleas. Because of the impeachment rules that purportedly prevent perjury, the most knowledgeable witnesses may be precluded from taking the stand. The ...


Evidence-Informed Criminal Justice, Brandon L. Garrett Jan 2018

Evidence-Informed Criminal Justice, Brandon L. Garrett

Faculty Scholarship

The American criminal justice system is at a turning point. For decades, as the rate of incarceration exploded, observers of the American criminal justice system criticized the enormous discretion wielded by key actors, particularly police and prosecutors, and the lack of empirical evidence that has informed that discretion. Since the 1967 President’s Commission on Law Enforcement and Administration of Justice report, The Challenge of Crime in a Free Society, there has been broad awareness that the criminal system lacks empirically informed approaches. That report unsuccessfully called for a national research strategy, with an independent national criminal justice research institute ...


Cumulative Constitutional Rights, Kerry Abrams, Brandon L. Garrett Jan 2017

Cumulative Constitutional Rights, Kerry Abrams, Brandon L. Garrett

Faculty Scholarship

Cumulative constitutional rights are ubiquitous. Plaintiffs litigate multiple constitutional violations, or multiple harms, and judges use multiple constitutional provisions to inform interpretation. Yet judges, litigants, and scholars have often criticized the notion of cumulative rights, including in leading Supreme Court rulings, such as Lawrence v. Texas, Employment Division v. Smith, and Miranda v. Arizona. Recently, the Court attempted to clarify some of this confusion. In its landmark opinion in Obergefell v. Hodges, the Court struck down state bans on same-sex marriage by pointing to several distinct but overlapping protections inherent in the Due Process Clause, including the right to individual ...


The Fragile Promise Of Open-File Discovery, Ben Grunwald Jan 2017

The Fragile Promise Of Open-File Discovery, Ben Grunwald

Faculty Scholarship

Under traditional rules of criminal discovery, defendants are entitled to little prosecutorial evidence and are thus forced to negotiate plea agreements and prepare for trial in the dark. In an effort to expand defendants’ discovery rights, a number of states have recently enacted “open-file” statutes, which require the government to share the fruits of its investigation with the defense. Legal scholars have widely supported these reforms, claiming that they level the playing field and promote judicial efficiency by decreasing trials and speeding up guilty pleas. But these predictions are based largely on intuition and anecdotal data without extended theoretical analysis ...


Criminal Adjudication, Error Correction, And Hindsight Blind Spots, Lisa Kern Griffin Jan 2016

Criminal Adjudication, Error Correction, And Hindsight Blind Spots, Lisa Kern Griffin

Faculty Scholarship

Concerns about hindsight in the law typically arise with regard to the bias that outcome knowledge can produce. But a more difficult problem than the clear view that hindsight appears to provide is the blind spot that it actually has. Because of the conventional wisdom about error review, there is a missed opportunity to ensure meaningful scrutiny. Beyond the confirmation biases that make convictions seem inevitable lies the question whether courts can see what they are meant to assess when they do look closely for error. Standards that require a retrospective showing of materiality, prejudice, or harm turn on what ...


Brief Of Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Darryl K. Brown, Robert P. Burns, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar, Jessica L. West Jan 2016

Brief Of Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Darryl K. Brown, Robert P. Burns, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar, Jessica L. West

Faculty Scholarship

No abstract provided.


How Bayesian Are Judges?, Jack Knight, Mitu Gulati, David F. Levi Jan 2016

How Bayesian Are Judges?, Jack Knight, Mitu Gulati, David F. Levi

Faculty Scholarship

Richard Posner famously modeled judges as Bayesians in his book, How Judges Think? A key element of being Bayesian is that one constantly updates with new information. This model of the judge who is constantly learning and updating, particularly about local conditions, also is one of the reasons why the factual determinations of trial judges are given deference on appeal. But do judges in fact act like Bayesian updaters? Judicial evaluations of search warrant requests for probable cause provides an ideal setting to examine this question because the judges in this context have access to information on how well they ...


The Death Penalty And The Fifth Amendment, Joseph Blocher Jan 2016

The Death Penalty And The Fifth Amendment, Joseph Blocher

Faculty Scholarship

Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?

Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant to ...


Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Robert P. Burns, Sherman J. Clark, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar Dec 2015

Brief For Amici Curiae Professors Of Law In Support Of Petitioner, Barbara Allen Babcock, Jeffrey Bellin, Robert P. Burns, Sherman J. Clark, James E. Coleman Jr., Lisa Kern Griffin, Robert P. Mosteller, Deborah Tuerkheimer, Neil Vidmar

Faculty Scholarship

No abstract provided.


Barriers To Entry And Justice Ginsburg’S Criminal Procedure Jurisprudence, Lisa Kern Griffin Jan 2015

Barriers To Entry And Justice Ginsburg’S Criminal Procedure Jurisprudence, Lisa Kern Griffin

Faculty Scholarship

No abstract provided.


Decision-Making In The Dark: How Pre-Trial Errors Change The Narrative In Criminal Jury Trials, Kara Mackillop, Neil Vidmar Jan 2015

Decision-Making In The Dark: How Pre-Trial Errors Change The Narrative In Criminal Jury Trials, Kara Mackillop, Neil Vidmar

Faculty Scholarship

Over the past decade and a half, a great deal of attention has rightfully been given to the issue of wrongful convictions. In 2003, Jim Dwyer, Peter Neufeld and Barry Scheck published Actual Innocence, an eyeopening treatise on the reality of wrongful convictions in the United States. In the years since, more than 1400 innocent persons have been exonerated, and a very diverse research community of attorneys, academics, social scientists, and activists has developed in response to the realization offlaws in our criminal justice system. In 2012, Brandon Garrett's Convicting the Innocent quantitatively evaluated the first 250 DNA exonerations ...


Missing Mcveigh, Michael E. Tigar Jan 2014

Missing Mcveigh, Michael E. Tigar

Faculty Scholarship

No abstract provided.


Prosecutorial Discretion In Three Systems: Balancing Conflicting Goals And Providing Mechanisms For Control, Sara Sun Beale Jan 2014

Prosecutorial Discretion In Three Systems: Balancing Conflicting Goals And Providing Mechanisms For Control, Sara Sun Beale

Faculty Scholarship

In regulating the authority and discretion exercised by contemporary prosecutors,national systems balance a variety of goals, many of which are in tension or direct conflict. Forexample, making prosecutors politically or democratically accountable may conflict with theprinciple of prosecutorial neutrality, and the goal of efficiency may conflict with accuracy. National systems generally seek to foster equal treatment of defendants and respect for theirrights while also controlling or reducing crime and protecting the rights of victims. Systems thatrecognize prosecutorial discretion also seek to establish and implement policy decisions aboutthe best ways to address various social problems, priorities, and the allocation of ...


Is Now The Time For Major Federal Sentencing Reform?, Sara Sun Beale Jan 2012

Is Now The Time For Major Federal Sentencing Reform?, Sara Sun Beale

Faculty Scholarship

No abstract provided.


The North Carolina Racial Justice Act: An Essay On Substantive And Procedural Fairness In Death Penalty Litigation, Neil Vidmar Jan 2012

The North Carolina Racial Justice Act: An Essay On Substantive And Procedural Fairness In Death Penalty Litigation, Neil Vidmar

Faculty Scholarship

No abstract provided.


Book Review, Samuel W. Buell Jan 2012

Book Review, Samuel W. Buell

Faculty Scholarship

No abstract provided.


The Canadian Criminal Jury, Neil Vidmar, Regina Schuller Jan 2011

The Canadian Criminal Jury, Neil Vidmar, Regina Schuller

Faculty Scholarship

The Canadian criminal jury system has some unique characteristics. In contrast to American law, that gives precedent to free speech over fair trial, and English law, that favors fair trial over free speech, Canadian law occupies a middle ground balancing these competing values .Jury selection procedure in most trials is similar to that of England: jurors are assumed to be “impartial between the Queen and the accused” and are selected without a voir dire. However, in cases involving exceptional pretrial publicity or involving accused persons from racial or ethnic minority groups, jurors are vetted by a “challenge for cause” process ...


Inside-Out Enforcement, Lisa Kern Griffin Jan 2011

Inside-Out Enforcement, Lisa Kern Griffin

Faculty Scholarship

No abstract provided.


The Special Threat Of Informants To The Innocent Who Are Not Innocents: Producing “First Drafts,” Recording Incentives, And Taking A Fresh Look At The Evidence, Robert P. Mosteller Jan 2009

The Special Threat Of Informants To The Innocent Who Are Not Innocents: Producing “First Drafts,” Recording Incentives, And Taking A Fresh Look At The Evidence, Robert P. Mosteller

Faculty Scholarship

Fabricated testimony by informants often plays an important role in convictions of the innocent. In this article, I examine the particularly problematic situation of defendants who are innocent of the particular crime charged but are not strangers to crime. As to such defendants, potential informants abound among crime associates, and they have a ready story line that authorities are preconditioned to accept. Independent proof, which could be an antidote, will predictably be lacking. Indeed, that the informant has exclusive, critical knowledge often leads the prosecution to offer particularly tempting deals.

I focus on the case of Lee Wayne Hunt, a ...


Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca Bignami Jan 2007

Privacy And Law Enforcement In The European Union: The Data Retention Directive, Francesca Bignami

Faculty Scholarship

This paper examines a recent twist in EU data protection law. In the 1990s, the European Union was still primarily a market-creating organization and data protection in the European Union was aimed at rights abuses by market actors. Since the terrorist attacks of New York, Madrid, and London, however, cooperation on fighting crime has accelerated. Now, the challenge for the European Union is to protect privacy in its emerging system of criminal justice. This paper analyzes the first EU law to address data privacy in crime-fighting—the Data Retention Directive. Based on a detailed examination of the Directive’s legislative ...


Trial By Jury Involving Persons Accused Of Terrorism Or Supporting Terrorism, Neil Vidmar Jan 2006

Trial By Jury Involving Persons Accused Of Terrorism Or Supporting Terrorism, Neil Vidmar

Faculty Scholarship

This chapter explores issues in jury trials involving persons accused of committing acts of international terrorism or financially or otherwise supporting those who do or may commit such acts. The jury is a unique institution that draws upon laypersons to decide whether a person charged with a crime is guilty or innocent. Although the jury is instructed and guided by a trial judge and procedural rules shape what the jury is allowed to hear, ultimately the laypersons deliberate alone and render their verdict. A basic principle of the jury system is that at the start of trial the jurors should ...


“Testimonial” And The Formalistic Definition: The Case For An “Accusatorial” Fix, Robert P. Mosteller Jan 2005

“Testimonial” And The Formalistic Definition: The Case For An “Accusatorial” Fix, Robert P. Mosteller

Faculty Scholarship

The definition that the Supreme Court ultimately gives to the concept of testimonial statements will obviously be of critical importance in determining whether the new Confrontation Clause analysis adopted by Crawford affects only a few core statements or applies to a broader group of accusatorial statements knowingly made to government officials and perhaps private individuals at arm's length from the speaker. I contend that the broader definition is more consistent with the anti-inquisitorial roots of the Confrontation Clause when that provision is applied in the modern world. If my sense of the proper scope of the clause is roughly ...


Lawyers, Jails, And The Law’S Fake Bargains, Michael E. Tigar Jan 2001

Lawyers, Jails, And The Law’S Fake Bargains, Michael E. Tigar

Faculty Scholarship

No abstract provided.


The New Reno Bluesheet: A Little More Candor Regarding Prosecutorial Discretion, Sara Sun Beale Jan 1994

The New Reno Bluesheet: A Little More Candor Regarding Prosecutorial Discretion, Sara Sun Beale

Faculty Scholarship

No abstract provided.


International Exchange Of Information In Criminal Cases, Michael E. Tigar, Austin J. Doyle Jr. Jan 1983

International Exchange Of Information In Criminal Cases, Michael E. Tigar, Austin J. Doyle Jr.

Faculty Scholarship

No abstract provided.


The Grand Jury As The New Inquisition, Michael E. Tigar, Madeline R. Levy Jan 1971

The Grand Jury As The New Inquisition, Michael E. Tigar, Madeline R. Levy

Faculty Scholarship

No abstract provided.


Foreword: Waiver Of Constitutional Rights: Disquiet In The Citadel, Michael E. Tigar Jan 1970

Foreword: Waiver Of Constitutional Rights: Disquiet In The Citadel, Michael E. Tigar

Faculty Scholarship

Foreword to Harvard Law Review review of Supreme Court 1969 Term