Law Commons^™

Toward Ethical Plea Bargaining, Erica J. Hashimoto

Scholarly Works

Defendants in criminal cases are overwhelmingly more likely to plead guilty than to go to trial. Presumably, at least a part of the reason that most of them do so is that it is in their interest to plead guilty, i.e., they will receive a more favorable outcome if they plead guilty than if they go to trial. The extent to which pleas reflect fair or rational compromises in practice, however, depends upon a variety of factors, including the amount of information each of the parties has about the case. Some level of informational symmetry therefore is critical to the …

Torts And Innovation, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

This Essay exposes and analyzes a hitherto overlooked cost of the current design of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts’ reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, the recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.

Eyewitness Identification Reform In Massachusetts, Stanley Z. Fisher

Faculty Scholarship

This article traces the impact of the new scientific learning upon police eyewitness identification procedures in the Commonwealth of Massachusetts. Over the past 25 years, experimental psychologists have devised more reliable techniques for gathering eyewitness identification evidence than have been traditionally used by police. Massachusetts has over 350 autonomous municipal police departments, plus approximately 39 college campus police departments, the state police, and the MBTA (transit) Police Department. The decision how to investigate crime rests principally with the police chief responsible for each department. How does such a system of policing absorb new, scientifically superior methods of investigation?

A Return To The Grand Jury To Promote A Zen Zeal In Prosecutors, Melanie D. Wilson

Scholarly Articles

DNA evidence has freed at least 209 convicted people. Sometimes DNA evidence exonerates a person. Other times, it does not. When it does not exonerate, a prosecutor must decide whether to persist in further prosecution of the defendant. I propose a fresh, but simple, solution for prosecutors who face such choices. To protect the interests of defendants and victims, and to assuage society’s need for fair and accurate outcomes, prosecutors should represent these cases to a grand jury. The grand jury is an easily convened neutral party that can dispassionately evaluate the evidence, old and new, and determine whether a …

Improving The Reliability Of Criminal Trials Through Legal Rules That Encourage Defendants To Testify, Jeffrey Bellin

Faculty Publications

Reflecting a traditional bias against defendants' trial testimony, the modern American criminal justice system, which now recognizes a constitutional right to testify at trial, unabashedly encourages defendants to waive that right and remain silent. As a result, a large percentage of criminal defendants decline to testify, forcing juries to decide the question of the defendant's guilt without ever hearing from the person most knowledgeable on the subject.

This Article contends that the inflated percentage of silent defendants in the American criminal trial system is a needless, self-inflected wound, neither required by the Constitution nor beneficial to the search for truth. …

Exculpatory Evidence, Ethics, And The Road To The Disbarment Of Mike Nifong: The Critical Importance Of Full Open-File Discovery, Robert P. Mosteller

Faculty Publications

No abstract provided.

Bosnia V. Serbia: Lessons From The Encounter Of The International Court Of Justice With The International Criminal Tribunal For The Former Yugoslavia, Rebecca Hamilton, Richard J. Goldstone

Articles in Law Reviews & Other Academic Journals

This article uses the recent judgment of the ICJ in Bosnia v. Serbia to highlight the potential problems that arise when international courts have to adjudicate on overlapping situations. It describes the dispute between the ICJ and the ICTY on the appropriate legal standard for the attribution of state responsibility, and finds that the ICJ’s approach in this case suggests that those keen to minimize the fragmentation of international law between adjudicative bodies should not overlook the need for consistency within those bodies.With regard to fact finding, this article raises serious concerns about the manner in which the ICJ relied …

More Views From The Ivory Tower: The Kiss Principle - Keep It Simple, Solicitor, David Spratt

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Case Comment - People V. Nelson: A Tale Of Two Statistics, David H. Kaye

Journal Articles

In recent years, defendants who were identified as a result of a search through a database of DNA profiles have argued that the probability that a randomly selected person would match a crime-scene stain overstates the probative value of the match. The statistical literature is divided, with most statisticians who have written on the subject rejecting this claim. In People v. Nelson, the Supreme Court of California held that when the random-match probability is so small as to make it exceedingly unlikely that any unrelated individual has the incriminating DNA profile, this statistic is admissible in a database-search case. …

Finding A Happy And Ethical Medium Between A Prosecutor Who Believes The Defendant Didn't Do It And The Boss Who Says That He Did, Melanie D. Wilson

Scholarly Articles

The increasing prevalence of DNA testing has proven that, at times, our criminal justice system renders wrongful convictions. Extrapolating from such significant errors, we can infer that smaller mistakes also occur. Because criminal prosecution is not an exact science, like DNA evidence, prosecutors can disagree about aspects of a case-whether to reward a cooperating defendant with a sentence reduction, whether to indict a defendant under a mandatory minimum statute, and even whether a defendant is guilty of a crime. This Essay examines the tension that arises when the prosecutor handling a case disagrees with her boss about one or more …

Bad Character Evidence And Reprehensible Behaviour, James Goudkamp

Faculty of Law - Papers (Archive)

The Criminal Justice Act 2003 ushered in a new system for determining the admissibility of bad character evidence in criminal proceedings. Unfortunately, this system is riddled with anomalies and plagued by obscurity. These problems contaminate its core as it is unclear what constitutes 'bad character' evidence. This uncertainty is in large part due to the fact that the Act offers little clue as to the meaning of the words 'reprehensible behaviour', evidence of which is 'bad character' evidence. Accordingly, this article asks whether the decisions in which the expression 'reprehensible behaviour' has fallen for consideration shed light on its content. …

Minnesota's Distortion Of Rule 609, Ted Sampsell-Jones

Faculty Scholarship

Rule of Evidence 609, which governs the admission of prior convictions of a witness for purposes of impeachment, occupies an important place in the day to day operation of American criminal trials. The rule is a compromise that reflects these competing values. It admits some prior convictions but not all. Crimen falsi offenses such as perjury and fraud are automatically admissible under 609(a)(2). All other felonies are analyzed under the balancing test of 609(a)(1), which allows the admission of a defendant-witness's crimes if the “probative value of admitting this evidence outweighs its prejudicial effect to the accused.” The rule seeks …

Coordinating In The Shadow Of The Law: Two Contextualized Tests Of The Focal Point Theory Of Legal Compliance, Richard H. Mcadams, Janice Nadler

Faculty Working Papers

In situations where people have an incentive to coordinate their behavior, law can provide a framework for understanding and predicting what others are likely to do. According to the focal point theory of expressive law, the law's articulation of a behavior can sometimes create self-fulfilling expectations that it will occur. Existing theories of legal compliance emphasize the effect of sanctions or legitimacy; we argue that, in addition to sanctions and legitimacy, law can also influence compliance simply by making one outcome salient. We tested this claim in two experiments where sanctions and legitimacy were held constant. Experiment 1 demonstrated that …

Law, Psychology & Morality, Kenworthey Bilz, Janice Nadler

Faculty Working Papers

In a democratic society, law is an important means to express, manipulate, and enforce moral codes. Demonstrating empirically that law can achieve moral goals is difficult. Nevertheless, public interest groups spend considerable energy and resources to change the law with the goal of changing not only morally-laden behaviors, but also morally-laden cognitions and emotions. Additionally, even when there is little reason to believe that a change in law will lead to changes in behavior or attitudes, groups see the law as a form of moral capital that they wish to own, to make a statement about society. Examples include gay …

The Constable Blunders But Isnt Punished Does Hudson V Michigans Abolition Of The Exclusionary Rule Extend Beyond Knockandannounce Violations, Mark A. Summers

Faculty Scholarship

No abstract provided.

Wrongly Accused Redux: How Race Contributes To Convicting The Innocent: The Informants Example, Andrew E. Taslitz

School of Law Faculty Publications

This article analyzes five forces that may raise the risk of convicting the innocent based upon the suspect's race: the selection, ratchet, procedural justice, bystanders, and aggressive-suspicion effects. In other words, subconscious forces press police to focus more attention on racial minorites, the ratchet makes this focus every-increasing, the resulting sense by the community of unfair treatment raises its involvment in crime while lowering its willingness to aid the police in resisting crime, innocent persons suffer when their skin color becomes associated with criminality, and the police use more aggressive techniques on racial minorities in a way that raises the …

Methinks The Lady Doth Protest Too Little: Reassessing The Probative Value Of Silence, Mikah K. Thompson

Faculty Works

The syllogism goes as follows: major premise - Innocent people proclaim their innocence in response to an accusation; minor premise - Defendant failed to respond to an officer's accusation that he killed his wife; conclusion - Defendant is guilty of killing his wife. This syllogism is the basis upon which courts and lawmakers allow a defendant's silence to be admitted into evidence as proof of guilt. They reason that it is quite appropriate for jurors to infer that innocent people would proclaim their innocence and, therefore, a defendant's decision not to speak constitutes evidence of his or her guilt.

This …

Teaching Evidence, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

This article was published as part of the 2006 teaching issue of the Saint Louis University Law Journal. The teaching series was created as a forum for scholars, judges, and students to discuss methods for the effective teaching and learning of particular law school courses. In this essay, Professor Rothstein describes his philosophy and methods for teaching evidence.

An Uncertain Privilege: Implied Waiver And The Eviseration Of The Psychotherapist Patient Privilege In The Feral Courts, Deirdre M. Smith

Faculty Publications

Twelve years ago in Jaffee v. Redmond, 518 U.S. 1 (1996), the United States Supreme Court first recognized a federal common law psychotherapist-patient privilege and held that federal courts must protect confidential communications arising in psychotherapy despite the "likely evidentiary benefit" of such communications. This article examines the sharply conflicting authority in the federal courts that has developed since that landmark decision on the question of whether a plaintiff to a civil lawsuit waives the psychotherapist-patient privilege merely by seeking emotional distress damages. The federal courts' inconsistent and unprincipled approaches to this question renders the privilege itself nearly illusory and …

Nontestimonial Identification Orders For Dna Testing, Paul C. Giannelli

Faculty Publications

No abstract provided.

Pretrial Discovery Of Expert Testimony, Paul C. Giannelli

Faculty Publications

No abstract provided.

Proving Causation: The Holism Of Warrant And The Atomism Of Daubert, Susan Haack

Articles

No abstract provided.

To Speak Or Not To Speak: Navigating The Treacherous Waters Of Parallel Investigations Following The Amendment Of Federal Rule Of Evidence 408, Mikah K. Thompson

Faculty Works

In 2006, the Advisory Committee on Evidence Rules surprised many scholars when it amended Federal Rule of Evidence 408 concerning the admissibility of offers of compromise. Prior to its amendment, Rule 408 generally prohibited the admissibility of statements made during settlement talks when offered to prove or disprove liability. The newly amended Rule 408 creates an exception for statements made to government officials during settlement talks when the official is acting in a civil capacity.

The drafters of the new Rule 408 believe that statements made to private litigants during settlement talks deserve greater protection than statements made to government …

"Anything You Say May Be Used Against You": A Proposed Seminar On The Lawyer’S Duty To Warn Of Confidentiality’S Limits In Today's Post-Enron World, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

In light of recent developments, the confidence that one's communications with a lawyer will remain sacrosanct today may be badly misplaced. This raises important questions concerning the duty of lawyers: When, to what extent, and in what detail, does an attorney communicating with someone who may expect confidentiality, have a duty to explain in advance the circumstances under which the information gained may subsequently be revealed pursuant to these or other confidentiality loopholes? Will the interviewee “clam up” in the face of such Miranda-like warnings? If so, what does this do to the premise of Upjohn and the Model Rule …

The Confrontation Right Across The Systemic Divide, Richard D. Friedman

Book Chapters

In his notable work, Evidence Law Adrift, Mirjan Damaška identified three pillars of the common law system of determining facts in adjudication, and examined these through a comparative lens: the organisation of the trial court; the phenomenon of temporally compressed trials; and a high degree of control by parties and their counsel. In reviewing the book, I suggested that a strong concept of individual rights was another critical feature of the common law system, especially in its American variant and especially with respect to criminal defendants.

In this essay, I will explore how these four features play out in the …