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Bail Nullification, Jocelyn Simonson 2017 Brooklyn Law School

Bail Nullification, Jocelyn Simonson

Michigan Law Review

This Article explores the possibility of community nullification beyond the jury by analyzing the growing and unstudied phenomenon of community bail funds, which post bail for strangers based on broader beliefs regarding the overuse of pretrial detention. When a community bail fund posts bail, it can serve the function of nullifying a judge’s determination that a certain amount of the defendant’s personal or family money was necessary to ensure public safety and prevent flight. This growing practice—what this Article calls “bail nullification”—is powerful because it exposes publicly what many within the system already know to be ...


The Effects Of Secret Instructions And Yes/No Questions On Maltreated And Nonmaltreated Children's Reports Of A Minor Transgression, elizabeth c. ahern, Stacia N. Stolzenberg, Kelly McWilliams, Thomas D. Lyon 2017 University of Cambridge

The Effects Of Secret Instructions And Yes/No Questions On Maltreated And Nonmaltreated Children's Reports Of A Minor Transgression, Elizabeth C. Ahern, Stacia N. Stolzenberg, Kelly Mcwilliams, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

This study examined the effects of secret instructions (distinguishing between good/bad secrets and encouraging disclosure of bad secrets) and yes/no questions (DID: “Did the toy break?” versus DYR: “Do you remember if the toy broke?”) on 262 4- to 9- year old maltreated and nonmaltreated children’s reports of a minor transgression. Over two-thirds of children failed to disclose the transgression in response to free recall (invitations and cued invitations). The secret instruction increased disclosures early in free recall, but was not superior to no instruction when combined with cued invitations. Yes/no questions specifically asking about the ...


Constitutional Law And The Role Of Scientific Evidence: The Transformative Potential Of Doe V. Snyder, Melissa Hamilton 2017 University of Houston Law Center

Constitutional Law And The Role Of Scientific Evidence: The Transformative Potential Of Doe V. Snyder, Melissa Hamilton

Boston College Law Review

In late 2016, U.S. Court of Appeals for the Sixth Circuit’s concluded in Does #1–5 v. Snyder that Michigan’s sex offender registry and residency restriction law constituted an ex post facto punishment in violation of the constitution. In its decision, the Sixth Circuit engaged with scientific evidence that refutes moralized judgments about sex offenders, specifically that they pose a unique and substantial risk of recidivism. This Essay is intended to highlight the importance of Snyder as an example of the appropriate use of scientific studies in constitutional law.


Neuroscience Evidence In Forensic Contexts: Ethical Concerns, Stephen J. Morse 2017 University of Pennsylvania Law School

Neuroscience Evidence In Forensic Contexts: Ethical Concerns, Stephen J. Morse

Faculty Scholarship

This is a chapter in a volume, Ethics Dilemmas in Forensic Psychiatry and Psychology Practice, edited by Ezra E. H. Griffith, M.D. and to be published by Columbia University Press. The chapter addresses whether the use of new neuroscience techniques, especially non-invasive functional magnetic resonance imaging (fMRI) and the data from studies employing them raise new ethical issues for forensic psychiatrists and psychologists. The implicit thesis throughout is that if the legal questions, the limits of the new techniques and the relevance of neuroscience to law are properly understood, no new ethical issues are raised. A major ethical lapse ...


Criminal: Journalistic Rigour, Gothic Tales And Philosophical Heft, Jason Loviglio 2017 University of Maryland, Baltimore County

Criminal: Journalistic Rigour, Gothic Tales And Philosophical Heft, Jason Loviglio

RadioDoc Review

Like many of the shows in PRX’s Radiotopia catalogue of podcasts, Criminal’s sensibility and sound partake of the US public radio formula made famous by This American Life: journalistic rigour and gothic yarns. The show tells “stories of people who’ve done wrong, been wronged, or got caught somewhere in the middle”. But it’s moved beyond mere crime journalism to something that aspires to a bit more philosophical heft. Most of the stories unspool through the elegant co-narration between host Phoebe Judge and each episode’s central protagonist. The effect is almost always seamless, thanks to the ...


Unprecedented Infringement: Debunking The Constitutionality Of Dna Collection From Mere Arrestees In Light Of Maryland V. King, Christen Giannaros 2017 St. John's University School of Law

Unprecedented Infringement: Debunking The Constitutionality Of Dna Collection From Mere Arrestees In Light Of Maryland V. King, Christen Giannaros

Journal of Civil Rights and Economic Development

No abstract provided.


What Constitutes "Custody" Under Miranda?: An Examination Of Maine's Test As Applied In State V. Kittredge, Elizabeth L. Tull 2017 University of Maine School of Law

What Constitutes "Custody" Under Miranda?: An Examination Of Maine's Test As Applied In State V. Kittredge, Elizabeth L. Tull

Maine Law Review

In recent years, the Maine Supreme Judicial Court, sitting as the Law Court, has issued several opinions addressing whether a defendant’s statements are admissible when made to law enforcement in the absence of “Miranda warnings.” These cases have similar features: a defendant made a personally incriminating statement; raised an appeal arguing that Miranda warnings should have been, but were not, read to him or her; and the Court—in many cases—determined that the defendant was not technically in police custody, and thus there was no requirement to recite Miranda warnings to him or her. Miranda warnings are an ...


State V. Lovejoy: Should Pre-Arrest, Pre-Miranda Silence Be Admissible During The State's Case-In-Chief As Substantive Evidence Of Guilt?, Mark Rucci 2017 University of Maine School of Law

State V. Lovejoy: Should Pre-Arrest, Pre-Miranda Silence Be Admissible During The State's Case-In-Chief As Substantive Evidence Of Guilt?, Mark Rucci

Maine Law Review

Article 1, section 6 of Maine Constitution reads in part that “[t]he accused shall not be compelled to give evidence against himself or herself, nor be deprived of life, liberty, property, or privileges . . . .” Further, the Law Court has held that “the State constitutional protection against self-incrimination is the equivalent of the Fifth Amendment." However, as with most provisions of the Constitution, the protection against self-incrimination is open to interpretation. While the Supreme Court has answered some questions surrounding the Fifth Amendment’s protections, it has left many decisions regarding its scope largely within the purview of the states. As ...


Knock And Talk No More, Jamesa J. Drake 2017 University of Maine School of Law

Knock And Talk No More, Jamesa J. Drake

Maine Law Review

The Supreme Court has set out a roadmap for challenging one of the most common and insidious police tactics used today: the knock-and-talk. The path is short and clear and it leads to the inescapable conclusion that the knock-and-talk—as it is actually employed in practice—is unconstitutional. Although the Court has yet to squarely consider the issue, some Justices have already taken pains to say, in dictum, that knock-and-talks are lawful. Practitioners should not be dissuaded. What this faction of the Court describes is a highly romanticized—and utterly inaccurate—conception of what a knock-and-talk actually entails. The sort ...


Ideology, Race, And The Death Penalty: "Lies, Damn Lies, And Statistics" In Advocacy Research, Anthony Walsh, Virginia Hatch 2017 Boise State University

Ideology, Race, And The Death Penalty: "Lies, Damn Lies, And Statistics" In Advocacy Research, Anthony Walsh, Virginia Hatch

Journal of Ideology

We use the literature on race in death penalty to illustrate the hold that ideology has on researchers and journalists alike when a social issue is charged with emotional content. We note particularly how statistical evidence become misinterpreted in ways that support a particular ideology, either because of innumeracy or because—subconsciously or otherwise—one’s ideology precludes a critical analysis. We note that because white defendants are now proportionately more likely to receive the death penalty and to be executed than black defendants that the argument has shifted from a defendant-based to a victim-based one. We examine studies based ...


Rape Law Gatekeeping, Corey Rayburn Yung 2017 University of Kansas School of Law

Rape Law Gatekeeping, Corey Rayburn Yung

Boston College Law Review

Police across the United States regularly act as hostile gatekeepers who prevent rape complaints from advancing through the criminal justice system by fervently policing the culturally disputed concept of “rape.” Victims are regularly disbelieved, rape kits are discarded without investigation, and, as a result, rapists remain free. The substantial empirical evidence and stories from victims across the United States demonstrate that any success in decreasing sexual violence hinges on removing the numerous police-imposed obstacles inhibiting investigation and adjudication in rape cases, beginning with substantial reform of police practices. An examination of modern cases and the historical record indicates that the ...


Challenging The Credibility Of Alleged Victims Of Child Sexual Abuse In Scottish Courts, Zsofia Szojka, Samantha J. Andrews, Michael E. Lamb, Stacia N. Stolzenberg, Thomas D. Lyon 2017 University of London

Challenging The Credibility Of Alleged Victims Of Child Sexual Abuse In Scottish Courts, Zsofia Szojka, Samantha J. Andrews, Michael E. Lamb, Stacia N. Stolzenberg, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

This study examined the effects of credibility-challenging questions (n = 2,729) on 62 5- to 17-year-olds’ testimony in child sexual abuse cases in Scotland by categorizing the type, source, and content of the credibility-challenging questions defence lawyers asked and assessing how children responded. Credibility-challenging questions comprised 14.9% of all questions asked during cross-examination. Of defence lawyers’ credibility-challenging questions, 77.8% focused generally on children’s honesty, whereas the remainder referred to specific inconsistencies in the children’s testimony. Children resisted credibility challenges 54% of the time, significantly more often than they provided compliant responses (26.8%). The tendency to ...


The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel 2017 University of New Mexico School of Law

The Right To Counsel For Indians Accused Of Crime: A Tribal And Congressional Imperative, Barbara L. Creel

Barbara L Creel

Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it ...


A “Second Magna Carta”: The English Habeas Corpus Act And The Statutory Origins Of The Habeas Privilege, Amanda L. Tyler 2017 University of California Berkeley Law School

A “Second Magna Carta”: The English Habeas Corpus Act And The Statutory Origins Of The Habeas Privilege, Amanda L. Tyler

Amanda L Tyler

In my own scholarship, Fallon and Meltzer’s work on habeas models prompted me to dig deeper into the historical backdrop that informed ratification of the Suspension Clause and think harder about the relevance of that history for questions of constitutional interpretation. This, in turn, has spurred work that has occupied me for many years since. In the spirit of engaging with my federal courts professor one more time, this Article tells the story of the statutory origins of the habeas privilege—what Blackstone called a “second magna carta”—and argues that any explication of the constitutional privilege and discussion ...


The Effects Of The Putative Confession And Parent Suggestion On Children's Disclosure Of A Minor Transgression, Elizabeth B. Rush, Stacia N. Stolzenberg, J A. Quas, Thomas D. Lyon 2017 University of California, Irvine

The Effects Of The Putative Confession And Parent Suggestion On Children's Disclosure Of A Minor Transgression, Elizabeth B. Rush, Stacia N. Stolzenberg, J A. Quas, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

Purpose: This study examined the effects of the putative confession (telling the child that an adult “told me everything that happened and he wants you to tell the truth”) on children’s disclosure of a minor transgression after questioning by their parents. Methods: Children (N = 188; 4 – 7-year-olds) played with a confederate, and while doing so, for half of the children, toys broke. Parents then questioned their children about what occurred, and half of the parents were given additional scripted suggestive questions. Finally, children completed a mock forensic investigative interview. Results: Children given the putative confession were 1.6 times ...


The Productivity Of Wh- Prompts When Children Testify, Samantha J. Andrews, Elizabeth C. Ahern, Stacia N. Stolzenberg, Thomas D. Lyon 2017 University of Cambridge

The Productivity Of Wh- Prompts When Children Testify, Samantha J. Andrews, Elizabeth C. Ahern, Stacia N. Stolzenberg, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

Wh- prompts (what, how, why, who, when, where) vary widely in their specificity and accuracy, but differences among them have largely been ignored in research examining the productivity of different question-types in child testimony. We examined 120 6- to 12-year-olds’ criminal court testimony in child sexual abuse cases to compare the productivity of various wh- prompts. We distinguished among what/how prompts, most notably: what/how-happen prompts focusing generally on events, what/how-dynamic prompts focusing on actions or unfolding processes/events, what/how-causality prompts focusing on causes and reasons, and what/how-static prompts focusing on non-action contextual information regarding location ...


What Constitutes "Custody" Under Miranda?: An Examination Of Maine's Test As Applied In State V. Kittredge, Elizabeth L. Tull 2017 University of Maine School of Law

What Constitutes "Custody" Under Miranda?: An Examination Of Maine's Test As Applied In State V. Kittredge, Elizabeth L. Tull

Maine Law Review

In recent years, the Maine Supreme Judicial Court, sitting as the Law Court, has issued several opinions addressing whether a defendant’s statements are admissible when made to law enforcement in the absence of “Miranda warnings.” These cases have similar features: a defendant made a personally incriminating statement; raised an appeal arguing that Miranda warnings should have been, but were not, read to him or her; and the Court—in many cases—determined that the defendant was not technically in police custody, and thus there was no requirement to recite Miranda warnings to him or her. Miranda warnings are an ...


State V. Lovejoy: Should Pre-Arrest, Pre-Miranda Silence Be Admissible During The State's Case-In-Chief As Substantive Evidence Of Guilt?, Mark Rucci 2017 University of Maine School of Law

State V. Lovejoy: Should Pre-Arrest, Pre-Miranda Silence Be Admissible During The State's Case-In-Chief As Substantive Evidence Of Guilt?, Mark Rucci

Maine Law Review

Article 1, section 6 of Maine Constitution reads in part that “[t]he accused shall not be compelled to give evidence against himself or herself, nor be deprived of life, liberty, property, or privileges . . . .” Further, the Law Court has held that “the State constitutional protection against self-incrimination is the equivalent of the Fifth Amendment." However, as with most provisions of the Constitution, the protection against self-incrimination is open to interpretation. While the Supreme Court has answered some questions surrounding the Fifth Amendment’s protections, it has left many decisions regarding its scope largely within the purview of the states. As ...


Common Sense And The Law Of "Voluntary" Confessions: An Essay, John C. Sheldon 2017 University of Maine School of Law

Common Sense And The Law Of "Voluntary" Confessions: An Essay, John C. Sheldon

Maine Law Review

By admitting to the police Inspector that he murdered two people, Raskolnikov delivers literature's mist famous criminal confession. The Inspector has done virtually nothing to procure the confession; all he did was tell Raskolnikov that he knows Raskolnikov committed the murder. The marvel of the Crime and Punishment is its exploration of Raskolnikov's relentless, multi-faceted conscience, which alone drives him to admit his guilt. Would Raskolnikov's confession be admissible under Maine law? It depends. Here, from its 2013 decision in State v. Wiley,2 is how the Maine Supreme Judicial Court, sitting as the Law Court, states ...


Spatial Language, Question Type, And Young Children's Ability To Describe Clothing: Legal And Developmental Implications, Stacia N. Stolzenberg, Kelly McWilliams, Thomas D. Lyon 2017 Arizona State University

Spatial Language, Question Type, And Young Children's Ability To Describe Clothing: Legal And Developmental Implications, Stacia N. Stolzenberg, Kelly Mcwilliams, Thomas D. Lyon

University of Southern California Legal Studies Working Paper Series

Children’s descriptions of clothing placement and touching with respect to clothing are central to assessing child sexual abuse allegations. This study examined children’s ability to answer the types of questions attorneys and interviewers typically ask about clothing, using the most common spatial terms (on/off, outside/inside, over/under). Ninety-seven 3- to 6-year-olds were asked yes/no (e.g. “Is the shirt on?”), forced-choice (e.g., “Is the shirt on or off?”), open-choice (e.g., “Is the shirt on or off or something else?”), or where questions (e.g., “Where is the shirt?”) about clothing using a human ...


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