Criminal Law Commons^™

Neuropsychological Malingering Determination: The Illusion Of Scientific Lie Detection, Chunlin Leonhard, Christoph Leonhard

Georgia Law Review

Humans believe that other humans lie, especially when stakes are high. Stakes can be very high in a courtroom, from substantial amounts of monetary damages in civil litigation to liberty or life in criminal cases. One of the most frequently disputed issues in U.S. courts is whether litigants are malingering when they allege physical or mental conditions for which they are seeking damages or which would allow them to avoid criminal punishment. Understandably, creating a scientific method to detect lies is very appealing to all persons engaged in lie detection. Neuropsychologists claim that they can use neuropsychological assessment tests (Malingering …

The New People V. Collins: How Can Probabilistic Evidence Be Properly Admitted?, David Crump

Maine Law Review

The California Supreme Court’s decision in People v. Collins is a staple in Evidence casebooks. An innovative assistant district attorney in the trial court had presented a mathematician who applied probabilities to questions about the perpetrators’ characteristics. The state supreme court disapproved the injection of an equation featuring what mathematicians call the “product rule.” The opinion contains thank-goodness-we-escaped-that-disaster reasoning and condemnation of this use of mathematics with probabilities. But the court’s analysis probably would be different if the case were decided today, as the “new” People v. Collins. Therefore, this Article considers what the author calls the new People v. …

Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr

Northwestern University Law Review

The evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules’ clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable exceptions, and poke holes in supposedly ironclad privileges. And that’s just the beginning.

The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These “mistakes” are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. Codified evidentiary …

The History Of Forensic-Science Evidence In Criminal Trials And The Role Of Early “Success” In Establishing Its Putative Reliability, Carrie Leonetti

St. Mary's Law Journal

This Article posits the history of forensic-science evidence plays a significant role in the unquestioning manner of its modern acceptance. It traces early high-profile forensic science “successes” and the public reactions to them. It argues the public perception of the “advances” of forensic science continues to play a role in the lack of scrutiny given to these disciplines in admissibility decisions today. It concludes, when it comes to forensic science, history should play a different role by serving as a critical warning rather than a congratulatory buttress.

Reforming Eyewitness Identification Processes: Challenges And Recommendations For Successful Implementation, Daniel Manley

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Shifting The Male Gaze Of Evidence, Teneille R. Brown

Utah Law Faculty Scholarship

In this article I target the altar at which many of us worship—the pursuit of rationality. For evidence purposes, rationality is defined as decisions that are reasonable, objective, inductive, and free from the bias of emotion. This view of rationality is deeply embedded in evidence scholarship and practice. It is also reflected in evidence rules like FRE 403, which treat emotional testimony as unfairly prejudicial simply because it is emotional. The anti-emotion view of rationality reflects the thinking of Western philosophical giants. Plato, Hobbes, Descartes, and Bacon all thought that men should strive for rationality by suppressing their emotions, because …

Confrontation, The Legacy Of Crawford, And Important Unanswered Questions, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

This is a short piece for the University of Michigan Journal of Law Reform as part of its 2024 Symposium on “Crawford at 20: Reforming the Confrontation Clause.” The piece's purpose is to highlight certain important questions left unanswered by Crawford v. Washington and subsequent confrontation cases.

Tragedies Of The Cultural Commons, Etienne C. Toussaint

Faculty Publications

In the United States, Black cultural expressions of democratic life that operate within specific historical-local contexts, yet reflect a shared set of sociocultural mores, have been historically crowded out of the law and policymaking process. Instead of democratic cultural discourse occurring within an open and neutral marketplace of ideas, the discursive production and consumption of democratic culture in American politics has been rivalrous. Such rivalry too often enables dominant White supremacist cultural beliefs, values, and practices to exercise their hegemony upon law’s production and meaning. The result has been tragedy for politically disempowered and socioeconomically excluded communities.

This Article uses …

The Case For The Abolition Of Criminal Confessions, Guha Krishnamurthi

SMU Law Review

Confessions have long been considered the gold standard of evidence in criminal proceedings. But in truth, confession evidence imposes significant harms on our criminal justice system, through false convictions and other violations of defendants’ due process and moral rights. Moreover, our current doctrine is unable to eliminate or even curb these harms.

This Article makes the case for the abolition of confession evidence in criminal proceedings. Though it may seem radical, abolition is sensible and best furthers our penological goals. As a theoretical matter, confession evidence has low probative value, but it is prejudicially overvalued by juries and judges. Consequently, …

The Prosecutor In The Mirror: Conviction Integrity Units And Brady Claims, Lissa Griffin, Daisy Mason

Elisabeth Haub School of Law Faculty Publications

In Brady v. Maryland, the Supreme Court held that a prosecutor has a due process obligation to disclose exculpatory evidence that is material to guilt or punishment. The failure to fulfill this duty is particularly insidious because it bears directly on both whether an innocent defendant may have been convicted as well as on whether the adjudicatory process was fair. The failure to disclose exculpatory evidence has been characterized as “epidemic” and has been documented to have made a major, outsized contribution in cases that resulted in exonerations. It is not surprising, then, that conviction integrity units in prosecutor’s offices …

Liberty And Justice For All?: A Pathfinder On The Use Of Lyrics As Evidence In Civil And Criminal Trial, Stephanie Washington

Upper Level Writing Requirement Research Papers

No abstract provided.

Criminal Justice Secrets, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The American criminal justice system is cloaked in secrecy. The government employs covert surveillance operations. Grand-jury proceedings are hidden from public view. Prosecutors engage in closed-door plea-bargaining and bury exculpatory evidence. Juries convict defendants on secret evidence. Jury deliberations are a black box. And jails and prisons implement clandestine punishment practices. Although there are some justifications for this secrecy, the ubiquitous nature of it is contrary to this nation’s Founders’ steadfast belief in the transparency of criminal justice proceedings. Further, the pervasiveness of secrecy within today’s criminal justice system raises serious constitutional concerns. The accumulation of secrecy and the aggregation …

Artificial Intelligence As Evidence, Paul W. Grimm, Maura R. Grossman, Gordon V. Cormack

Northwestern Journal of Technology and Intellectual Property

This article explores issues that govern the admissibility of Artificial Intelligence (“AI”) applications in civil and criminal cases, from the perspective of a federal trial judge and two computer scientists, one of whom also is an experienced attorney. It provides a detailed yet intelligible discussion of what AI is and how it works, a history of its development, and a description of the wide variety of functions that it is designed to accomplish, stressing that AI applications are ubiquitous, both in the private and public sectors. Applications today include: health care, education, employment-related decision-making, finance, law enforcement, and the legal …

Willful Blindness As Mere Evidence, Gregory M. Gilchrist

Loyola of Los Angeles Law Review

The willful blindness doctrine at criminal law is well-established and generally fits with moral intuitions of guilt. It also stands in direct tension with the first principle of American criminal law: legality. This Article argues that courts could largely preserve the doctrine and entirely avoid the legality problem with a simple shift: willful blindness ought to be reconceptualized as a form of evidence.

Confrontation In The Age Of Plea Bargaining [Comments], William Ortman

Law Faculty Research Publications

No abstract provided.

Assertion And Hearsay, Richard Lloret

Dickinson Law Review (2017-Present)

This article explores the characteristics and functions of assertion and considers how the term influences the definition of hearsay under Federal Rule of Evidence 801. Rule 801(a) defines hearsay by limiting it to words and conduct intended as an assertion, but the rule does not define the term assertion. Courts and legal scholars have focused relatively little attention on the nature and definition of assertion. That is unfortunate, because assertion is a robust concept that has been the subject of intense philosophic study over recent decades. Assertion is not a mere cypher standing in for whatever speech or conduct one …

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …

Exposing Police Misconduct In Pre-Trial Criminal Proceedings, Anjelica Hendricks

All Faculty Scholarship

This Article presents a unique argument: police misconduct records should be accessible and applicable for pre-trial criminal proceedings. Unfortunately, the existing narrative on the value of police misconduct records is narrow because it exclusively considers how these records can be used to impeach officer credibility at trial. This focus is limiting for several reasons. First, it addresses too few defendants, since fewer than 3% of criminal cases make it to trial. Second, it overlooks misconduct records not directly addressing credibility—such as records demonstrating paperwork deficiencies, failures to appear in court, and “mistakes” that upon examination are patterns of abuse. Finally, …

Professor Jeffrey Bellin: Reflections On The Fall 2020 Semester, Jeffrey Bellin

Law School Personal Reflections on COVID-19

No abstract provided.

Unbuckling The Seat Belt Defense In Arkansas, Spencer G. Dougherty

Arkansas Law Review

The “seat belt defense” has been hotly litigated over the decades in numerous jurisdictions across the United States. It is an affirmative defense that, when allowed, reduces a plaintiff’s recovery for personal injuries resulting from an automobile collision where the defendant can establish that those injuries would have been less severe or avoided entirely had the plaintiff been wearing an available seat belt. This is an unsettled legal issue in Arkansas, despite the growing number of cases in which the seat belt defense is raised as an issue. Most jurisdictions, including Arkansas, initially rejected the defense, but the basis for …

The Acquisition Of Scientific Evidence Between Frye And Daubert. From Ad Hominem Arguments To Cross-Examination Among Experts, Lorenzo Zoppellari

OSSA Conference Archive

The Frye and Daubert rulings give us two very different ways to intend the relation between law and science. Through the contributions of Wellman and Walton, we will see how the main method to question the expert’s testimony before a judge deferent to science is to question her personal integrity by using ad hominem arguments. Otherwise, using Alvin Goldman’s novice/expert problem, we will investigate if other manners of argumentative cross-examinations are possible.

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 can …

The Fourth Amendment Inventory As A Check On Digital Searches, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

Police and federal agents generally must obtain a warrant to search the tens of thousands of devices they seize each year. But once they have a warrant, courts afford these officers broad leeway to search the entire device, every file and folder, all metadata and deleted data, even if in search of only one incriminating file. Courts avow great reverence for the privacy of personal information under the Fourth Amendment but then claim there is no way to limit where an officer might find the target files, or know where the suspect may have hidden them.

These courts have a …

Lie To Me: Examining Specific Intent Under 18 U.S.C. §§ 1001, 1035

Florida A & M University Law Review

One court notes that the Supreme Court of the United States (“SCOTUS”) has previously not found specific intent to be required under similar language within Section 1001.9 While there are many similarities between Sections 1001 and 1035, there are salient differences. Notwithstanding the differences, this Article argues that Sections 1001 and 1035 should be interpreted without “intent to deceive” and rather be interpreted as a strict liability offense. This argument began with Part I, which provided a brief introduction regarding specific intent under Sections 1001 and 1035. Part II examines the purpose of criminalizing false statements, which identifies why the …

Mr. Big And The New Common Law Confessions Rule: Five Years In Review, Adelina Iftene, Vanessa Kinnear

Articles, Book Chapters, & Popular Press

The Supreme Court of Canada released its decision of R v Hart in July of 2014. The decision provided a two-prong framework for assessing the admissibility of confessions obtained through the undercover police tactic known as “Mr. Big”. The goal of the framework was to address reliability concerns, to protect suspects from state abuse, and to reduce the risk of wrongful convictions. The first prong of the test created a new common law evidentiary rule, under which Mr. Big obtained confessions are now presumptively inadmissible. The second prong revamped the existing abuse of process doctrine.

In this article, the authors …

Replacing The Exclusionary Rule With Administrative Rulemaking, Francis A. Gilligan, Fredric I. Lederer

Fredric I. Lederer

No abstract provided.

Why Do We Admit Criminal Confessions Into Evidence?, David Crump

Seattle University Law Review

There is an enormous literature about the admissibility of criminal confessions. But almost all of it deals with issues related to self-incrimination or, to a lesser extent, with hearsay or accuracy concerns. As a result, the question whether we ever admit criminal confessions into evidence has not been the subject of much analysis. This gap is odd, since confessions are implicitly disfavored by a proportion of the literature and they often collide with exclusionary doctrines. Furthermore, the self-incrimination issue sometimes is resolved by balancing, and it would help if we knew what we were balancing. Therefore, one might ask: Why …

The Exclusion Of Evidence In The United States, Paul Marcus

Paul Marcus

No abstract provided.

Restrictions On Law Enforcement Investigation And Prosecution Of Crime, Paul Marcus

Paul Marcus

No abstract provided.

Doing Away With The Exclusionary Rule, Francis A. Gilligan, Fredric I. Lederer

Fredric I. Lederer

No abstract provided.