Digital Commons Network^™

The First Amendment Case For Public Access To Secret Algorithms Used In Criminal Trials, Vera Eidelman

Georgia State University Law Review

As this Article sets forth, once a computerized algorithm is used by the government, constitutional rights may attach. And, at the very least, those rights require that algorithms used by the government as evidence in criminal trials be made available—both to litigants and the public. Scholars have discussed how the government’s refusal to disclose such algorithms runs afoul of defendants’ constitutional rights, but few have considered the public’s interest in these algorithms—or the widespread impact that public disclosure and auditing could have on ensuring their quality.

This Article aims to add to that discussion by setting forth a theory of …

Safety From Flawed Forensic Sciences Evidence, Boaz Sangero

Georgia State University Law Review

This article addresses the way to safety in the context of forensic sciences evidence. After presenting the current lack of safety, which I term “unsafety,” I raise some possible safety measures to contend with this. My suggestions are grounded on two bases: first, the specific analysis of each type of evidence in line with the most recent research on the subject; and second, modern safety theory and its application to the criminal justice system. It is important to stress that my proposals represent only some of the conceivable safety measures. Developing a comprehensive safety theory for the criminal justice system …

Georgia State Law Review Symposium Keynote Address: Uncovering Forensic Flaws - An Outside Perspective, Spencer S. Hsu

Georgia State University Law Review

This transcript is a reproduction of the Keynote Address by Spencer Hsu at the 2017–2018 Georgia State University Law Review Symposium — From the Crime Scene to the Court room: The Future of Forensic Science Reform — on April 6, 2018.

Spencer Hsu is an investigative reporter at the Washington Post, a two-time Pulitzer Prize finalist, and a national Emmy Award nominee.

Garbage In, Garbage Out: Revising Strickland As Applied To Forensic Science Evidence, Mark Loudon-Brown

Georgia State University Law Review

Sophisticated scientific evidence may be an undesirable subject matter for a judge to tackle anew, and it can be even more daunting for a defense attorney to confront, particularly one faced with a crushing caseload. It can be tempting to avoid a challenge to a vulnerable forensic science discipline—be it new, novel, or simply recently called into question—when a lawyer reasonably believes that the evidence will be admitted regardless.

Worse still, it may seem reasonable to disregard any adversarial challenge to incriminatory science altogether, and to opt instead for a different defense or to encourage a guilty plea. With hundreds …

Deploying The Secret Police: The Use Of Algorithms In The Criminal Justice System, Jessica Gabel Cino

Georgia State University Law Review

Algorithms saturate our lives today; from curated song lists to recommending “friends” and news feeds, they factor into some of the most human aspects of decision-making, tapping into preferences based on an ever-growing amount of data. Regardless of whether the algorithm pertains to routing you around traffic jams or finding your next dinner, there is little regulation and even less transparency regarding just how these algorithms work. Paralleling this societal adoption, the criminal justice system now employs algorithms in some of the most important aspects of investigation and decision-making.

The lack of oversight is abundantly apparent in the criminal justice …

The Overdose/Homicide Epidemic, Valena E. Beety

Georgia State University Law Review

This Article explores the lack of regulation of coroners, concerns within the forensic science community on the reliability of coroner determinations, and ultimately, how elected laypeople serving as coroners may influence the rise in drug-induced homicide prosecutions in the midst of the opioid epidemic.

This Article proposes that the manner of death determination contributes to overdoses being differently prosecuted; that coroners in rural counties are more likely to determine the manner of death for an illicit substance overdose is homicide; and that coroners are provided with insufficient training on interacting with the criminal justice system, particularly on overdose deaths. Death …

Undocumented Crime Victims: Unheard, Unnumbered, And Unprotected, Pauline Portillo

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Litigating Federal Habeas Corpus Cases: One Equitable Gateway At A Time, Eve Brensike Primus

Other Publications

Habeas corpus, also known as the Great Writ, was meant to be a “bulwark against convictions that violate fundamental fairness,” according to the Supreme Court. Yet today, federal courts provide relief in fewer than half of one percent of cases in which a non-capital state prisoner seeks relief through habeas. The Great Writ, it would seem, is no longer so great. In Litigating Federal Habeas Corpus Cases: One Equitable Gateway at a Time, Eve Brensike Primus examines the various procedural and substantive hurdles that have been erected in the past half century that make it nearly impossible for state prisoners …

“Who Will Judge The Many When The Game Isthrough?”: Considering The Profound Differencesbetween Mental Health Courts And “Traditional”Involuntary Civil Commitment Courts, Michael L. Perlin

Seattle University Law Review

For forty years, we have known that involuntary civil commitment hearings are—in most jurisdictions—“charades.” When the Supreme Court noted, in Parham v. J.R., that the average length of a civil commitment hearing ranged from 3.8 to 9.2 minutes, the reaction of many who had done these cases was, “What? So long?!” The characterization of such hearings as being a “greased runway” to a state institution has never been disputed. Lawyers representing these individuals were bored or contemptuous; judges simply wanted to get cases moving; opposing counsel looked at their wrist watches to see when the cases would be done. This …

Supreme Court Institute Annual Report, 2017-2018, Georgetown University Law Center, Supreme Court Institute

SCI Papers & Reports

During the U.S. Supreme Court’s October Term (OT) 2017 – corresponding to the 2017-2018 academic year –the Supreme Court Institute (SCI) provided moot courts for advocates in 98% of the cases heard by the Supreme Court, offered a variety of programs related to the Supreme Court, and continued to integrate the moot court program into the education of Georgetown Law students.

A list of all SCI moot courts held in OT 2017 – arranged by argument sitting and date of Moot, and including the name and affiliation of each advocate and the number of observers – follows the narrative portion …

Vulnerability, Access To Justice, And The Fragmented State, Elizabeth L. Macdowell

Michigan Journal of Race and Law

This Article builds on theories of the fragmented state and of human and institutional vulnerability to create a new, structural theory of “functional fragmentation” and its role in access to justice work. Expanding on previous concepts of fragmentation in access to justice scholarship, fragmentation is understood in the Article as a complex phenomenon existing within as well as between state institutions like courts. Further, it is examined in terms of its relationship to the state’s coercive power over poor people in legal systems. In this view, fragmentation in state operations creates not only challenges for access, but also opportunities for …

Batson For Judges, Police Officers & Teachers: Lessons In Democracy From The Jury Box, Stacy L. Hawkins

Michigan Journal of Race and Law

In our representative democracy we guarantee equal participation for all, but we fall short of this promise in so many domains of our civic life. From the schoolhouse, to the jailhouse, to the courthouse, racial minorities are underrepresented among key public decision-makers, such as judges, police officers, and teachers. This gap between our aspirations for representative democracy and the reality that our judges, police officers, and teachers are often woefully under-representative of the racially diverse communities they serve leaves many citizens of color wanting for the democratic guarantee of equal participation. This critical failure of our democracy threatens to undermine …

Fairness In The Exceptions: Trusting Juries On Matters Of Race, Virginia Weeks

Michigan Journal of Race and Law

Implicit bias research indicates that despite our expressly endorsed values, Americans share a pervasive bias disfavoring Black Americans and favoring White Americans. This bias permeates legislative as well as judicial decision-making, leading to the possibility of verdicts against Black defendants that are tainted with racial bias. The Supreme Court’s 2017 decision in Peña-Rodriguez v. Colorado provides an ex post remedy for blatant racism that impacts jury verdicts, while jury nullification provides an ex ante remedy by empowering jurors to reject convicting Black defendants when to do so would reinforce racially biased laws. Both remedies exist alongside a trend limiting the …

"It's Not You, It's Your Caseload": Using Cronic To Solve Indigent Defense Underfunding, Samantha Jaffe

Michigan Law Review

In the United States, defendants in both federal and state prosecutions have the constitutional right to effective assistance of counsel. That right is in jeopardy. In the postconviction setting, the standard for ineffective assistance of counsel is prohibitively high, and Congress has restricted federal habeas review. At trial, severe underfunding for state indigent defense systems has led to low pay, little support, and extreme caseloads—which combine to create conditions where lawyers simply cannot represent clients adequately. Overworked public defenders and contract attorneys represent 80 percent of state felony defendants annually. Three out of four countywide public defender systems and fifteen …

Social Work Students’ Attitudes And Beliefs About Mental Health Courts, Nicholas Bettosini, Conrad Paul Akins-Johnson

Electronic Theses, Projects, and Dissertations

Mental Health Courts (MHCs) are a diversion program for mentally ill offenders in lieu of incarceration. The Substance Abuse and Mental Services Administration (SAMHSA) developed these specialized court programs in the 1990’s to assist mentally ill offenders in overcoming barriers to treatment. While new laws have begun to change the way mentally ill offenders are viewed from a law enforcement standpoint, social workers’ attitudes and beliefs about these programs have not been studied. This quantitative study’s purpose was to examine Master of Social Work (MSW) Graduate students’ attitudes and beliefs of mentally ill offenders and MHCs. Social work student participants …

Prior Mental Health Treatment And Mental Health Court Program Outcomes, Lauren Rubenstein

Student Theses

In response to the high volume of mentally ill individuals involved in the criminal justice system, mental health courts have emerged as an alternative to incarceration for these individuals. Based on the literature, it is hypothesized that participants with a history of prior mental health treatment will have better outcomes in MHC programs, including more compliant behavior and more successful completion of the program than participants with no history of prior mental health treatment. The findings of this research can be used in order to help MHC programs better accommodate all participants regardless of their treatment history.

Policy Considerations And Implications In United States V. Bryant, Jessica Larsen

Northwestern Journal of Law & Social Policy

No abstract provided.

What U.S Defense Attorneys Know About Facial Composites, Marisa H. Jaross

Student Theses

The Innocence Project’s DNA exoneration database (2018) indicates that approximately 27% of wrongful conviction cases containing eyewitness evidence also included a composite or sketch[1] of the perpetrator. This statistic is alarming, given that composites are rarely used in criminal investigations (PERF, 2013), but not surprising considering “good” composites are notoriously difficult to construct (e.g., Wells, Charman, & Olson, 2005). It is well understood that eyewitness evidence can be particularly persuasive evidence of guilt for juries and thus we were interested in learning more about how defense attorneys prepare for trial with respect to this specific type of eyewitness evidence. …

Confronting Silence: The Constitution, Deaf Criminal Defendants, And The Right To Interpretation During Trial, Deirdre M. Smith

Maine Law Review

For most deaf people, interactions with the hearing community in the absence of interpretation or technological assistance consist of communications that are, at most, only partly comprehensible. Criminal proceedings, with the defendant's liberty interest directly at stake, are occasions in which the need for deaf people to have a full understanding of what is said and done around them is most urgent. Ironically, the legal “right to interpretation” has not been clearly defined in either statutory or case law. Although the federal and state constitutions do not provide a separate or lesser set of rights for deaf defendants, their situation …

Pena-Rodriguez V. Colorado: Elevating A Constitutional Exception Above The Tanner Framework, Caroline Covington

Maryland Law Review

No abstract provided.

Trapped In The Shackles Of America's Criminal Justice System, Shristi Devu

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Rethinking Bail Reform, Wendy R. Calaway, Jennifer M. Kinsley

University of Richmond Law Review

The issue of pretrial detention is part of a larger, national conversation on criminal justice reform. However, no single issue permeates the landscape of criminal justice like the treatment of pretrial defendants. The policies and practices around pretrial detention have contributed to the country’s mass incarceration numbers; created a crisis for local jail management; generated unsustainable budgets; and raised important questions about race, class, and the constitutional implications of incarcerating people because they are too poor to pay a money bond. Legal scholars have written about the issue, highlighting the inequities and constitutional difficulties with such a system. Much of …

Rapid Dna Testing And Virginia's Rape Kit Backlog: A Double-Edged Sword Masquerading As A Miracle, Or The Future Of Forensic Analysis?, Emma C. Greger

University of Richmond Law Review

While Rapid DNA technology has the potential to revolutionize every aspect of the criminal justice system, from arrest to the postconviction appeals process, there has been particular excitement centered around its potential to reduce the rape kit backlog.

The #Metoo Movement: An Invitation For Feminist Critique Of Rape Crisis Framing, Jamie R. Abrams

University of Richmond Law Review

This article invites feminists to leverage the #MeToo Movement as a critical analytical tool to explore the longevity of the enduring rape crisis framing of victim services. Long before the #MeToo Movement, victim services in communities nationwide were framed around a crisis model. For nearly half a century, victims have visited rape crisis centers, called rape crisis hotlines, and mobilized rape crisis response teams to provide services and support. This enduring political and social framing around rape as a crisis is opaque, has prompted a political backlash, and risks distorting hard-fought feminist legal, social, and political battles. It has yielded …

Race, Speech, And Sports, Matthew J. Parlow

University of Richmond Law Review

Race, sports, and free speech rights intersected in a very controversial and public way during the 2016 and 2017 National Football League (“NFL”) seasons. On August 26, 2016, Colin Kaepernick spurred a national debate when he refused to stand during the playing of the national anthem before the NFL preseason game between the Green Bay Packers and the San Francisco 49ers, Kaepernick’s team at the time.

Enforcing Statutory Maximums: How Federal Supervised Release Violates The Sixth Amendment Rights Defined In Apprendi V. New Jersey, Danny Zemel

University of Richmond Law Review

The Sixth Amendment commands that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Trial by a jury of one’s peers is a fundamental American legal right, existing in the earliest colonies before being codified in both Article III of the Constitution and the Sixth Amendment. The jury trial right derives from “the mass of the people,” ensuring that “no man can be condemned of life, or limb, or property, or reputation, without the concurrence of the …

Underdeveloped And Over-Sentenced: Why Eighteen- To Twenty-Year-Olds Should Be Exempt From Life Without Parole, Emily Powell

University of Richmond Law Review

Sentencing eighteen- to twenty-year-olds to life without parole should be considered cruel and unusual because it is disproportionate to this class of offenders’ culpability.

Potential Jurors’ Perceptions Of Polygraphs In Court, Jacob Schiess

Boise State University Theses and Dissertations

The polygraph occupies a contentious place in the justice system. The instrument detects various physical responses and records these results, and the examiner interprets the readings and makes a determination on whether the test subject was truthful or deceptive. Polygraphs are, in some jurisdictions, a part of the court process and in others are forbidden. On the whole, there is less research on the polygraph and their permissibility in the legal process compared to other types of evidence. There is even less research on the opinions of jurors, especially compared to surveys of criminal justice professionals. That which is present …

Prosecutorial Summation: Where Is The Line Between "Personal Opinion" And Proper Argument?, James W. Gunson

Maine Law Review

Prosecutorial forensic misconduct has become front page news in Maine. Since April of 1993, the Maine Supreme Judicial Court, sitting as the Law Court, has reversed convictions in three highly publicized cases based on remarks made by the prosecutor. In State v. Steen, the prosecutor asked the defendant to give his opinion concerning the veracity of other witnesses and suggested in closing argument that the favorable testimony given by the defense's expert witness resulted from the fee he had received. The Law Court vacated the gross sexual assault conviction, finding that the prosecutor's questions and closing argument “clearly suggested” to …

A Measure Of Our Justice System: A Look At Maine's Indigent Criminal Defense Delivery System, Ronald W. Schneider Jr.

Maine Law Review

This Comment will examine briefly the history of the right to counsel and the accompanying right to the effective assistance of counsel in this country. At the time the Sixth Amendment was included in the Bill of Rights, the United States rejected the English practice of denying the right to counsel to those accused of felonies while granting the right to those charged with misdemeanors. People in the United States have enjoyed the right to counsel in all criminal cases, felonies and misdemeanors, since 1791. Yet in a very real and dangerous sense, the courts have reversed the course of …