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Criminal Procedure

2019

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Younger And Older Adults' Lie-Detection And Credibility Judgments Of Children's Coached Reports, Alison M. O'Connor, Thomas D. Lyon, Angela Evans Sep 2019

Younger And Older Adults' Lie-Detection And Credibility Judgments Of Children's Coached Reports, Alison M. O'Connor, Thomas D. Lyon, Angela Evans

University of Southern California Legal Studies Working Paper Series

Previous research has examined young and middle-aged adults’ perceptions of child witnesses; however, no research to date has examined how potential older adult jurors may perceive a child witness. The present investigation examined younger (18–30 years, N = 100) and older adults’ (66–89 years, N = 100) liedetection and credibility judgments when viewing children’s truthful and dishonest reports. Participants viewed eight child interview videos where children (9–11 years of age) either provided a truthful report or a coached fabricated report to conceal a transgression. Participants provided lie-detection judgments following all eight videos and credibility assessments following the first ...


Identifying Liars Through Automatic Decoding Of Children's Facial Expressions, Kaila Bruer, Sarah Zanette, Xiaopan Ding, Thomas D. Lyon, Kang Lee Sep 2019

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 ...


Bowser V. State Of Nevada, 135 Nev. Adv. Op. 15 (May 16, 2019), Andrew Brown Sep 2019

Bowser V. State Of Nevada, 135 Nev. Adv. Op. 15 (May 16, 2019), Andrew Brown

Nevada Supreme Court Summaries

The Court overruled precedent which held that a presumption of vindictiveness applies when a judge imposes a longer sentence after a new trial.


Menendez-Cordero V. State, 135 Nev. Adv. Op. 29 (Jul 25, 2019), Nick Hagenkord Sep 2019

Menendez-Cordero V. State, 135 Nev. Adv. Op. 29 (Jul 25, 2019), Nick Hagenkord

Nevada Supreme Court Summaries

The Court concluded that (1) the empanelment of an anonymous jury does not, without actual prejudice, infringe on a defendant’s constitutional rights and the district court satisfied the abuse-of-discretion standard adopted; (2) the district court need not instruct a jury that is responsible for imposing a sentence in a first-degree murder case under NRS 175.552 about the effects of a deadly weapon enhancement; and (3) there was no abuse of discretion in the district court’s decision to admit Menendez-Cordero’s threats as consciousness-of-guilt evidence.


Anderson (Arnold) V. State, 135 Nev. Adv. Op. 37 (Sept. 5, 2019), Alexandra Matloff Sep 2019

Anderson (Arnold) V. State, 135 Nev. Adv. Op. 37 (Sept. 5, 2019), Alexandra Matloff

Nevada Supreme Court Summaries

The Court held that if a trial court determines by a preponderance of the evidence that a witness is unable to testify because the defendant wrongfully procured the witness’s unavailability and acted with intent to do so, the forfeiture-by-wrongdoing exception can be applied in order to deny a defendant’s rights under the Confrontation Clause of the Sixth Amendment. The Court also held that in determining whether the forfeiture-by-wrongdoing exception applies, the trial court must hear the opposing parties’ arguments in the absence of a jury.


Hager V. State, 135 Nev. Adv. Op. 34 (Aug. 29, 2019), Brittney Lehtinen Sep 2019

Hager V. State, 135 Nev. Adv. Op. 34 (Aug. 29, 2019), Brittney Lehtinen

Nevada Supreme Court Summaries

The Court determined that (1) Defendants who successfully complete mental health specialty court diversion programs pursuant to NRS § 176A.250–265 are not “adjudicated mentally ill” under NRS § 202.360(2)(1); and (2) that the jury should have been instructed that under NRS § 202.360(1)(d), an “unlawful user” is someone who regularly uses substances over a period of time consistent with their possession of a firearm.


Azucena V. State Of Nevada, 135 Nev. Ad. Op. (Sep. 5, 2019), Mia Mallette Sep 2019

Azucena V. State Of Nevada, 135 Nev. Ad. Op. (Sep. 5, 2019), Mia Mallette

Nevada Supreme Court Summaries

The Court determined that the trial judge’s actions during jury selection rose to the level of judicial misconduct in response to a prospective juror indicating she could not be unbiased. These actions could have impeded Azucena’s right to a fair trial with an impartial jury as the court feared that the potential jurors would not have been able to answer candidly about any biases they may have had.


Andersen V. Eighth Judicial Dist. Court, 135 Nev. Adv. Op. 42 (Sept. 12, 2019) (En Banc), Erika Smolyar Sep 2019

Andersen V. Eighth Judicial Dist. Court, 135 Nev. Adv. Op. 42 (Sept. 12, 2019) (En Banc), Erika Smolyar

Nevada Supreme Court Summaries

In light of recent statutes limiting the right to bear arms for people convicted of misdemeanor battery constituting domestic violence, the Court determined that because the Legislature reclassified misdemeanor battery in that context to constitute a serious offense, those convicted of it are entitled to a jury trial.


On Juror Decision Making: An Empathic Inquiry, Dan Simon Aug 2019

On Juror Decision Making: An Empathic Inquiry, Dan Simon

University of Southern California Legal Studies Working Paper Series

This review examines the workings of jurors deciding criminal cases. It seeks not to commend or condemn jury decision making but rather to offer an empathic exploration of the task that jurors face in exercising their fact-finding duty. Reconstructing criminal events in the courtroom amounts to a difficult feat under the best of circumstances. The task becomes especially complicated under the taxing conditions of criminal adjudication: the often substandard evidence presented in court; the paucity of the investigative record; types of evidence that are difficult to decipher; the unruly decision-making environment of the courtroom; and mental gymnastics required to meet ...


Justice On The Line: Prosecutorial Screening Before Arrest, Adam M. Gershowitz Aug 2019

Justice On The Line: Prosecutorial Screening Before Arrest, Adam M. Gershowitz

Faculty Publications

Police make more than eleven million arrests every year. Yet prosecutors dismiss about 25% of criminal charges with no conviction being entered. Needless arrests are therefore clogging the criminal justice system and harming criminal defendants. For instance, Freddie Gray was fatally injured in police custody after being arrested for possession of a switchblade knife. Prosecutors later announced, however, that they did not believe the knife was actually illegal. If prosecutors had to approve warrantless arrests before police could take suspects into custody, Freddie Gray would still be alive. Yet prosecutors’ offices almost never dictate who the police should or should ...


The Effects Of The Putative Confession And Evidence Presentation On Maltreated And Non-Maltreated 9- To 12-Year-Olds' Coached Concealment Of A Minor Transgression, Angela Evans, Thomas D. Lyon Jul 2019

The Effects Of The Putative Confession And Evidence Presentation On Maltreated And Non-Maltreated 9- To 12-Year-Olds' Coached Concealment Of A Minor Transgression, Angela Evans, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

The present study examined the influence of the putative confession (in which children are told that the suspect told them “everything that happened” and “wants [the child] to tell the truth”) and evidence presentation on 9- to 12-year-old maltreated and non-maltreated children’s disclosure (N = 321). Half of the children played a forbidden game with an adult confederate which resulted in a laptop breaking (no transgression occurred for the other half of children), followed by coaching to conceal the forbidden game and to falsely disclose the sanctioned game. Children were then interviewed about the interaction with the confederate. Among the ...


Effects Of The Putative Confession Instruction On Perceptions Of Children's True And False Statements, Jennifer Gongola, Nicholas Scurich, Thomas D. Lyon Jul 2019

Effects Of The Putative Confession Instruction On Perceptions Of Children's True And False Statements, Jennifer Gongola, Nicholas Scurich, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

The putative confession instruction (“[suspect] told me everything that happened and wants you to tell the truth”) during forensic interviews with children has been shown to increase the accuracy of children’s statements, but it is unclear whether adult’s perceptions are sensitive to this salutary effect. The present study examined how adults perceive children’s true and false responses to the putative confession (PC) instruction. Participants (n = 299) watched videotaped interviews of children and rated the child’s credibility and the truthfulness of his/her statements. When viewing children’s responses to the PC instruction, true and false statements ...


Children's Concealment Of A Minor Transgression: The Role Of Age, Maltreatment, And Executive Functioning, Shanna Williams, Kelly Mcwilliams, Thomas D. Lyon Jul 2019

Children's Concealment Of A Minor Transgression: The Role Of Age, Maltreatment, And Executive Functioning, Shanna Williams, Kelly Mcwilliams, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

This study examined the role of age, maltreatment status, and executive functioning (EF) on 752 4- to 9-year-old maltreated and nonmaltreated children’s recall disclosure of a transgression in which they appeared to have broken toys while playing with a stranger. Interviewers used narrative practice rapport-building and then questioned children with free recall and cued recall questions. Younger and maltreated children were more likely to disclose during rapport-building, whereas older and nonmaltreated children were more likely to disclose in response to recall questions. Working memory deficits appeared to mediate the relation between children’s characteristics and disclosure during rapport, but ...


Adults' Perceptions Of Children's Referentially Ambiguous Responses, Breanne E. Wylie, Thomas D. Lyon, Alison M. O'Connor, Christina Lapytskaia, Angela Evans Jul 2019

Adults' Perceptions Of Children's Referentially Ambiguous Responses, Breanne E. Wylie, Thomas D. Lyon, Alison M. O'Connor, Christina Lapytskaia, Angela Evans

University of Southern California Legal Studies Working Paper Series

The present study examined adults’ (N = 295) interpretations of child witnesses’ referentially ambiguous “yes” and “no” responses to “Do You Know/Remember (DYK/R) if/whether” questions (e.g., “Do you know if it was blue?”). Participants were presented with transcripts from child sexual abuse cases modified based on question format (DYK/R vs. Direct) and child response type (Yes, No, I don’t know) in a between subjects design. We assessed whether adults recognized that children’s ambiguous responses were unclear, and if not, how they were interpreting children’s responses compared to the control (Direct) conditions. More specifically ...


Fictional Pleas, Thea B. Johnson Jul 2019

Fictional Pleas, Thea B. Johnson

Faculty Publications

A fictional plea is one in which the defendant pleads guilty to a crime he has not committed with the knowledge of the defense attorney, prosecutor and judge. With fictional pleas, the plea of conviction is totally detached from the original factual allegations against the defendant. As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern. It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating non-criminal consequences. In this context ...


Law School News: Ncdc Holds Trial Practice Institute At Rwu Law 06-28-2019, Michael M. Bowden Jun 2019

Law School News: Ncdc Holds Trial Practice Institute At Rwu Law 06-28-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.


The Role Of Kinship And Siblings In Young Children's Placement Preferences, Kelli Dickerson, Thomas D. Lyon, Jodi A. Quas Jun 2019

The Role Of Kinship And Siblings In Young Children's Placement Preferences, Kelli Dickerson, Thomas D. Lyon, Jodi A. Quas

University of Southern California Legal Studies Working Paper Series

Although considerable attention has been directed toward the most appropriate placement for children following removal from home due to maltreatment, very little of this attention has focused on children’s stated preferences, particularly when they are young. Specifically, children under 12 years of age are typically presumed incompetent to form reasoned judgments about their best interests in placement. This assumption, however, has rarely been tested directly. We surveyed 100 4- to 11-year-olds removed from home because of maltreatment about their placement preferences. Children were less likely to indicate they wanted to return home if they were placed with siblings or ...


The Opposite Of Punishment: Imagining A Path To Public Redemption, Paul H. Robinson, Muhammad Sarahne Jun 2019

The Opposite Of Punishment: Imagining A Path To Public Redemption, Paul H. Robinson, Muhammad Sarahne

Faculty Scholarship at Penn Law

The criminal justice system traditionally performs its public functions – condemning prohibited conduct, shaming and stigmatizing violators, promoting societal norms – through the use of negative examples: convicting and punishing violators. One could imagine, however, that the same public functions could also be performed through the use of positive examples: publicly acknowledging and celebrating offenders who have chosen a path of atonement through confession, apology, making amends, acquiescing in just punishment, and promising future law abidingness. An offender who takes this path arguably deserves official public recognition, an update of all records and databases to record the public redemption, and an exemption ...


Maryland Makes New Evidence Postconviction Review Provisions Available To Defendants With Plea Deals, Felicia Langel Jun 2019

Maryland Makes New Evidence Postconviction Review Provisions Available To Defendants With Plea Deals, Felicia Langel

Maryland Law Review Online

No abstract provided.


Dividing Bail Reform, Shima Baughman Jun 2019

Dividing Bail Reform, Shima Baughman

Utah Law Faculty Scholarship

There are few issues in criminal law with greater momentum than bail reform. In the last three years, states have passed hundreds of new pretrial release laws, and there are now over 200 bills pending throughout the states. These efforts are rooted in important concerns: Bail reform lies at the heart of broader recent debates about equitable treatment in the criminal justice system. Done right, bail keeps dangerous individuals off the streets; done wrong, it keeps those with less economic means in jail longer. Some jurisdictions are eliminating money bail. Others are adopting risk assessments to determine who to release ...


Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer Jun 2019

Social Media, Venue And The Right To A Fair Trial, Leslie Y. Garfield Tenzer

Pace Law Faculty Publications

Judicial failure to recognize social media's influence on juror decision making has identifiable constitutional implications. The Sixth Amendment right to a fair trial demands that courts grant a defendant's change of venue motion when media-generated pretrial publicity invades the unbiased sensibility of those who are asked to sit in judgment. Courts limit publicity suitable for granting a defendant's motion to information culled from newspapers, radio, and television reports. Since about 2014, however, a handful of defendants have introduced social media posts to support their claims of unconstitutional bias in the community. Despite defendants' introduction of negative social ...


Increasing Maltreated And Nonmaltreated Children's Recall Disclosures Of A Minor Transgression: The Effects Of Back-Channel Utterances, A Promise To Tell The Truth And A Post-Recall Putative Confession, Kelly Mcwilliams, Stacia N. Stolzenberg, Shanna Williams, Thomas D. Lyon May 2019

Increasing Maltreated And Nonmaltreated Children's Recall Disclosures Of A Minor Transgression: The Effects Of Back-Channel Utterances, A Promise To Tell The Truth And A Post-Recall Putative Confession, Kelly Mcwilliams, Stacia N. Stolzenberg, Shanna Williams, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

Background: Children are often hesitant to disclose transgressions, particularly when they feel implicated, and frequently remain reluctant until confronted with direct questions. Given the risks associated with direct questions, an important issue is how interviewers can encourage honesty through recall questions. Objective: The present study examined the use of three truth induction strategies for increasing the accuracy and productivity of children’s reports about a transgression. Participants: A total of 285 4-to-9-year-old maltreated and nonmaltreated children. Methods: Each child took part in a play session with a stranger during which the child appeared to break some toys. A research assistant ...


The Power Of Prosecutors, Jeffrey Bellin May 2019

The Power Of Prosecutors, Jeffrey Bellin

Faculty Publications

One of the predominant themes in the criminal justice literature is that prosecutors dominate the justice system. Over seventy-five years ago, Attorney General Robert Jackson famously proclaimed that the “prosecutor has more control over life, liberty, and reputation than any other person in America.” In one of the most cited law review articles of all time, Bill Stuntz added that prosecutors—not legislators, judges, or police—“are the criminal justice system’s real lawmakers.” And an unchallenged modern consensus holds that prosecutors “rule the criminal justice system.”

This Article applies a critical lens to longstanding claims of prosecutorial preeminence. It ...


Incarceration Or E-Carceration: California’S Sb 10 Bail Reform And The Potential Pitfalls For Pretrial Detainees, Ashley Mullen May 2019

Incarceration Or E-Carceration: California’S Sb 10 Bail Reform And The Potential Pitfalls For Pretrial Detainees, Ashley Mullen

Cornell Law Library Prize for Exemplary Student Research Papers

California’s bail system not only infringes on individual rights, but also exacerbates a cobweb criminal justice system. The In re Humphrey court framed the issue perfectly when it stated that the problem with the bail system stems “from the enduring unwillingness of our society, including the courts, to correct a deformity in our criminal justice system that close observers have long considered a blight on the system.” California sought to rectify this “deformity” of a wealth-based bail system by passing SB 10 (the California Money Bail Reform Act of 2017).

This Note addresses the arguments that will likely be ...


Codifying A Sharia-Based Criminal Law In Developing Muslim Countries, Paul H. Robinson Apr 2019

Codifying A Sharia-Based Criminal Law In Developing Muslim Countries, Paul H. Robinson

Faculty Scholarship at Penn Law

This paper reproduces presentations made at the University of Tehran in March 2019 as part of the opening and closing remarks for a Conference on Criminal Law Development in Muslim-Majority Countries. The opening remarks discuss the challenges of codifying a Shari’a-based criminal code, drawing primarily from the experiences of Professor Robinson in directing codification projects in Somalia and the Maldives. The closing remarks apply many of those lessons to the situation currently existing in Iran. Included is a discussion of the implications for Muslim countries of Robinson’s social psychology work on the power of social influence and internalized ...


The Challenge Of Convicting Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz Apr 2019

The Challenge Of Convicting Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Faculty Publications

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?

This essay, in honor of Professor Bennett Gershman, points to what psychologists have ...


Sixth Amendment Sentencing After Hurst, Carissa B. Hessick, W. W. Berry Apr 2019

Sixth Amendment Sentencing After Hurst, Carissa B. Hessick, W. W. Berry

Faculty Publications

The U.S. Supreme Court’s 2016 decision in Hurst v. Florida, which struck down Florida’s capital sentencing scheme, altered the Court’s Sixth Amendment sentencing doctrine. That doctrine has undergone several important changes since it was first recognized. At times the doctrine has expanded, invalidating sentencing practices across the country, and at times it has contracted, allowing restrictions on judicial sentencing discretion based on findings that are not submitted to a jury. Hurst represents another expansion of the doctrine. Although the precise scope of the decision is unclear, the most sensible reading of Hurst suggests that any finding ...


Child Witnesses, Thomas D. Lyon, Kelly Mcwilliams, Shanna Williams Mar 2019

Child Witnesses, Thomas D. Lyon, Kelly Mcwilliams, Shanna Williams

University of Southern California Legal Studies Working Paper Series

In this chapter we provide an overview of psychological issues involving children’s capacities as witnesses. First, we discuss the kinds of cases in which children are usually involved. Across different courts, one most often sees children describing abuse at the hands of familiar adults. Second, we describe the difficulties children encounter in disclosing abuse, particularly when it is perpetrated by adults close to them. These dynamics lead most children to remain silent, and only the most forthcoming children to disclose. Third, we suggest a framework for assessing children’s allegations, in which child-generated and adult-generated information lie on opposite ...


The Utility Of Direct Questions In Eliciting Subjective Content From Children Disclosing Sexual Abuse, Stacia N. Stolzenberg, Shanna Williams, Kelly Mcwilliams, Catherine Liang, Thomas D. Lyon Mar 2019

The Utility Of Direct Questions In Eliciting Subjective Content From Children Disclosing Sexual Abuse, Stacia N. Stolzenberg, Shanna Williams, Kelly Mcwilliams, Catherine Liang, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

Background: Children alleging sexual abuse rarely exhibit emotion when disclosing, but they may be able to describe their subjective reactions to abuse if asked.

Objective: This study examined the extent to which different types of questions in child sexual abuse interviews elicited subjective content, namely emotional reactions, cognitive content, and physical sensations.

Participants and Setting: The study included transcripts of 205 Child Advocacy Center interviews with 4- to 12-year-old children alleging sexual abuse.

Methods: We coded questions for question type, distinguishing among invitations, wh- questions, yes/no and forced-choice questions, and suggestive questions. We coded both questions and answers for ...


Reforming Competence Restoration Statutes: An Outpatient Model, Susan A. Mcmahon Mar 2019

Reforming Competence Restoration Statutes: An Outpatient Model, Susan A. Mcmahon

Georgetown Law Faculty Publications and Other Works

Defendants who suffer from mental illness and are found incompetent to stand trial are often ordered committed to an inpatient mental health facility to restore their competence, even if outpatient care may be the better treatment option. Inpatient facilities are overcrowded and place the defendants on long waiting lists. Some defendants then spend weeks, months, or even years in their jail cell, waiting for a transfer to a hospital bed.

Outpatient competence restoration programs promise to relieve this pressure. But even if every state suddenly opened a robust outpatient competence restoration program, an obstacle looms: the statutes governing competence restoration ...