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Full-Text Articles in Law
The Procedural Justice Industrial Complex, Shawn E. Fields
The Procedural Justice Industrial Complex, Shawn E. Fields
Faculty Scholarship
The singular focus on procedural justice police reform is dangerous. Procedurally just law enforcement encounters provide an empirically proven subjective sense of fairness and legitimacy, while obscuring substantively unjust outcomes emanating from a fundamentally unjust system. The deceptive simplicity of procedural justice – that a polite cop is a lawful cop – promotes a false consciousness among would-be reformers that progress has been made, evokes a false sense of legitimacy divorced from objective indicia of lawfulness or morality, and claims the mantle of “reform” in the process. It is not just that procedural justice is a suboptimal type of reform; …
A History Of Fruit Of The Poisonous Tree (1916-1942), Daniel B. Yeager
A History Of Fruit Of The Poisonous Tree (1916-1942), Daniel B. Yeager
Faculty Scholarship
This is a history of a little-known stage within an otherwise well-known area of criminal procedure. The subject, “fruit of the poisonous tree,” explains the exclusion from trial of evidence (the fruit) derived from unconstitutional police practices (the tree). The Supreme Court first deployed the metaphor in 1939; exclusion of fruits by any other name, however, dates to before the Court began reviewing state convictions. While academic interest in the 1963-to-present phase of fruits is keen, the first quarter of what is now a century of history is taken as given, described in only the most conclusory terms. The 1916–1942 …
The Dignitary Confrontation Clause, Erin L. Sheley
The Dignitary Confrontation Clause, Erin L. Sheley
Faculty Scholarship
For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving …
If Hindsight Is 20/20, Our Justice System Should Not Be Blind To New Evidence Of Innocence: A Survey Of Post-Conviction New Evidence Statutes And A Proposed Model, Justin P. Brooks, Alexander Simpson, Paige Kaneb
If Hindsight Is 20/20, Our Justice System Should Not Be Blind To New Evidence Of Innocence: A Survey Of Post-Conviction New Evidence Statutes And A Proposed Model, Justin P. Brooks, Alexander Simpson, Paige Kaneb
Faculty Scholarship
No abstract provided.
Wrongfully Convicted In California: Are There Connections Between Exonerations, Prosecutorial And Police Procedures, And Justice Reforms?, Justin P. Brooks, Zachary Brooks
Wrongfully Convicted In California: Are There Connections Between Exonerations, Prosecutorial And Police Procedures, And Justice Reforms?, Justin P. Brooks, Zachary Brooks
Faculty Scholarship
No abstract provided.
Policing Sex: The Colonial, Apartheid, And New Democracy Policing Of Sex Work In South Africa, I. India Thusi
Policing Sex: The Colonial, Apartheid, And New Democracy Policing Of Sex Work In South Africa, I. India Thusi
Faculty Scholarship
The history of the policing of sex work in South Africa reveals the surprisingly contradictory manners that legal regulations, police action, and public discourses have all “policed” sex work to meet competing goals. Sex work has generally been subject to formal state policing in the form of legal regulations and laws, which mostly focus on the public nuisance aspects of it. However, there has also been a more informal policing of sex work through public discourses in the media, medical community, and amongst activists. These various forms of policing are at times contradictory, and may result in various approaches toward …
Social-Network Theory And The Diffusion Of The Search-And-Seizure Exclusionary Rule Among State Courts Between Weeks And Wolf, Laurence A. Benner, Robert Bird, Donald J. Smythe
Social-Network Theory And The Diffusion Of The Search-And-Seizure Exclusionary Rule Among State Courts Between Weeks And Wolf, Laurence A. Benner, Robert Bird, Donald J. Smythe
Faculty Scholarship
In light of the Supreme Court’s recent narrowing of the Fourth Amendment exclusionary rule in cases like Herring v. United States and Davis v. United States, there is renewed interest in whether state supreme courts will maintain or similarly narrow the search and seizure exclusionary rule for violations of their own state constitutions. The pattern of early adoptions of the exclusionary rule as a matter of state law before it was mandated by the federal Constitution may provide interesting insights into how the state supreme courts will respond to cases such as Herring and Davis. This article uses social-network theory …
Redinocente: The Challenge Of Bringing Innocence Work To Latin America, Justin Brooks
Redinocente: The Challenge Of Bringing Innocence Work To Latin America, Justin Brooks
Faculty Scholarship
No abstract provided.
Find The Cost Of Freedom: The State Of Wrongful Conviction Compensation Statutes Across The Country And The Strange Legal Odyssey Of Timothy Atkins, Justin Brooks, Alexander Simpson
Find The Cost Of Freedom: The State Of Wrongful Conviction Compensation Statutes Across The Country And The Strange Legal Odyssey Of Timothy Atkins, Justin Brooks, Alexander Simpson
Faculty Scholarship
Tim Atkins was wrongfully convicted of a crime he did not commit and spent 23 years in prison. Although compensation statutes like California's have admirable goals, Tim Atkins's case fell through some substantial cracks that prompted the Authors to write this Article. As two of the many lawyers who have worked on Tim's case over the years, it has been an incredibly frustrating journey to see him denied compensation after all that has been done to prove his innocence. California's statute is flawed and is being misinterpreted, just as other compensation statutes are flawed and misinterpreted around the country. This …
Blood Sugar Sex Magik: A Review Of Postconviction Dna Testing Statutes And Legislative Recommendations, Justin Brooks, Alexander Simpson
Blood Sugar Sex Magik: A Review Of Postconviction Dna Testing Statutes And Legislative Recommendations, Justin Brooks, Alexander Simpson
Faculty Scholarship
Forty-eight states, the District of Columbia, and the federal government have adopted some form of postconviction DNA testing law. Some significant challenges arise when these laws are applied to cases like Richards, which do not involve rape kits but rather require a broader view of how DNA testing can prove innocence. Furthermore, the laws are not uniform, and in the politically charged atmosphere of criminal lawmaking, some of the laws are poorly thought out. This Article reviews these postconviction statutes from the perspective of practitioners who litigate these cases, while also exploring the major questions that ought to be addressed …
The California Public Defender: Its Origins, Evolution And Decline, Laurence A. Benner
The California Public Defender: Its Origins, Evolution And Decline, Laurence A. Benner
Faculty Scholarship
No abstract provided.
"And I Don't Know Why It Is That You Threw Your Life Away": Abolishing Life Without Parole, The Supreme Court In Graham V. Florida Now Requires States To Give Juveniles Hope For A Second Chance, Leslie Culver
Faculty Scholarship
Terrance Graham pled guilty to armed burglary with assault or battery and attempted armed robbery when he was sixteen years old. He was sentenced to prison for the rest of his life. Like Roe v. Wade made history by forcing this country to consider the morality of abortion, so too will the United States Supreme Court's decision in Graham v. Florida make history by challenging the morality of sentencing juveniles for the rest of their lives. After firmly abolishing the death penalty for all juvenile offenders under the age of eighteen, as a violation of the Eighth Amendment's Cruel and …
View From The Trenches: The Struggle To Free William Richards, Jan Stiglitz
View From The Trenches: The Struggle To Free William Richards, Jan Stiglitz
Faculty Scholarship
This article discusses the circumstantial evidence against a wrongly convicted man and the California Innocence Project's efforts to seek his release.
The Presumption Of Guilt: Systemic Factors That Contribute To Ineffective Assistance Of Counsel In California, Laurence A. Benner
The Presumption Of Guilt: Systemic Factors That Contribute To Ineffective Assistance Of Counsel In California, Laurence A. Benner
Faculty Scholarship
Our adversary system of criminal justice is premised upon the belief that effective advocacy by counsel for both the prosecution and the defense, conducted within a process founded upon principles of fundamental fairness, will "best promote the ultimate objective that the guilty be convicted and the innocent go free." The exoneration of the wrongfully convicted by the California Innocence Project and other innocence projects across the county has revealed, however, that our criminal justice system is sometimes deeply flawed. In theory, every person accused of a serious crime comes to court protected by a presumption of innocence and the promise …
Overcoming Hiddenness: The Role Of Intentions In Fourth Amendment Analysis, Daniel B. Yeager
Overcoming Hiddenness: The Role Of Intentions In Fourth Amendment Analysis, Daniel B. Yeager
Faculty Scholarship
This Article rehearses a response to the problems posed to and by the Supreme Court's attempts to work out the meaning and operation of the word "search." After commencing Part II by meditating on the notion of privacy, I take up its relation to the antecedent suspicion or knowledge that Fourth-Amendment law requires as a justification for all privacy invasions. From there, I look specifically at that uneasy relation in Supreme Court jurisprudence, which has come to privilege privacy over property as a Fourth Amendment value. From there, Part III reviews the sources or bases that can tell us what …
Stubbornness Of Pretexts, Daniel B. Yeager
Stubbornness Of Pretexts, Daniel B. Yeager
Faculty Scholarship
This Article will reflect on (1) how the Whren v. United States failure to acknowledge what counts as a pretext accounts for the residual confusion as to whether or not Whren really has killed off the pretext argument in constitutional criminal procedure, and (2) the extent to which the Court in Sullivan compounded that failure, which I hope to lightly correct here by distinguishing motives from intentions and then by elaborating the role that each plays, or at least should play, in Fourth Amendment jurisprudence.
Confessions And Culture: The Interaction Of Miranda And Diversity, Floralynn Einesman
Confessions And Culture: The Interaction Of Miranda And Diversity, Floralynn Einesman
Faculty Scholarship
No abstract provided.
Does Privacy Really Have A Problem In The Law Of Criminal Procedure?, Daniel B. Yeager
Does Privacy Really Have A Problem In The Law Of Criminal Procedure?, Daniel B. Yeager
Faculty Scholarship
Agreeing with William Stuntz's conclusion that privacy retains a significant position in the law of criminal procedure, the author defends a privacy-oriented procedural regime that can .be reconciled with an activist regulatory state. Part One of this Article suggests that the comparatively light judicial supervision of police coercion owes more to the conditions under which force is used than to what Stuntz views as the Court's indifference to what police do to us, or to its "obsession" over what police can see and hear. By redescribing questions of privacy, or questions of privacy and coercion, merely as questions of coercion, …
Searches, Seizures, Confessions, And Some Thoughts On Criminal Procedure: Regulation Of Police Investigation -- Legal, Historical, Empirical, And Comparative Materials, Daniel B. Yeager
Faculty Scholarship
Criminal procedure casebooks densely populate the market but rarely are reviewed. In Criminal Procedure: Regulation of Police Investigation-Legal, Historical, Empirical, and Comparative Materials, Christopher Slobogin copes with the anxiety of influence by writing a different sort of text. Simply put, the book is outwardly somewhat homely. Aesthetics aside, the book is mostly excellent and astonishingly so for a first edition. As the subtitle promises, the book has something for everyone: historians, empiricists, comparativists, theoreticians, case-crunchers, and practitioners. This review essay tracks the book's crowning achievement-the refreshing and inventive "perspectives" chapter that opens the book. The essay then reflects on …
Dire Wolf Collects His Due While The Boys Sit By The Fire: Why Michigan Cannot Afford To Buy Into The Death Penalty, Justin P. Brooks, Jeanne Huey Erickson
Dire Wolf Collects His Due While The Boys Sit By The Fire: Why Michigan Cannot Afford To Buy Into The Death Penalty, Justin P. Brooks, Jeanne Huey Erickson
Faculty Scholarship
No abstract provided.
Vampires Among Us, Floralynn Einesman
Vampires Among Us, Floralynn Einesman
Faculty Scholarship
The integrity of an individual's person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.
Categorical And Individualized Rights-Ordering On Federal Habeas Corpus, Daniel B. Yeager
Categorical And Individualized Rights-Ordering On Federal Habeas Corpus, Daniel B. Yeager
Faculty Scholarship
This Article criticizes the Supreme Court's treatment of both individualized and categorical bases of relief on federal habeas corpus. Part I notes the Court's trend toward trimming the process that is due in criminal and prisoner litigation generally. This trend may explain the drop in process on habeas as well, but generally declining process cannot explain which rights, if any, should survive the decline. That would require our weighting, if not reconciling, accuracy and dignitary norms, which is the subject of Part II. In Part II, I examine Withrow v Williams, a case from the Court's 1992 Term, which, for …
Search, Seizure And The Positive Law: Expectations Of Privacy Outside The Fourth Amendment, Daniel B. Yeager
Search, Seizure And The Positive Law: Expectations Of Privacy Outside The Fourth Amendment, Daniel B. Yeager
Faculty Scholarship
This Article is about the misunderstood relationship between the Fourth Amendment and the positive law. It shows how state property law and other expressions of the positive law are more resilient and useful to Fourth Amendment analysis than the Court's decisions of the past three decades recognize.
How Long Is Too Long? When Pretrial Detention Violates Due Process, Floralynn Einesman
How Long Is Too Long? When Pretrial Detention Violates Due Process, Floralynn Einesman
Faculty Scholarship
No abstract provided.
Rethinking Custodial Interrogation, Daniel B. Yeager
Rethinking Custodial Interrogation, Daniel B. Yeager
Faculty Scholarship
This Article attempts to resurrect a concept crucial to the Supreme Court lexicon. It is not, however, a police manual. This Article concerns itself solely with questions surrounding the admissibility of confessions, and in so doing, attempts to show that only a reconsideration of custodial interrogation can restore the "significant deprivations" language to the status granted it in Miranda v. Arizona.
Public Safety Exception To Miranda Careening Through The Lower Courts, Daniel B. Yeager
Public Safety Exception To Miranda Careening Through The Lower Courts, Daniel B. Yeager
Faculty Scholarship
No abstract provided.