Digital Commons Network^™

A Public Technology Option, Hannah Bloch-Wehba

Law and Contemporary Problems

No abstract provided.

Looking Backward To Move Forward: Ending The "History And Tradition" Of Gun Violence Against The Lgbtq+ Community, Brett V. Ries

Duke Law Journal Online

Anti-LGBTQ+ gun violence is occurring in the United States at an alarming rate. The Department of Homeland Security has even issued a domestic terrorism warning for attacks against the LGBTQ+ community. When the shootings at the Pulse Nightclub in Florida and Club Q in Colorado are combined, fifty-four individuals were murdered and seventy-eight more were wounded while simply existing in an LGBTQ+ space. Both of these targeted shootings occurred within the past six years, indicating that anti-LGBTQ+ gun violence is not a relic of the past. As they were ten years ago, LGBTQ+ individuals are still disproportionately impacted by hate …

Science As Superstition: A Model Statute For Changed Science Claims, Jack D. Wasserman

Duke Law Journal

Over the last fifteen years, the legal community has increasingly recognized the role of “changed science” in contributing to wrongful convictions. Changed science wrongful convictions occur when the scientific evidence used to convict a criminal defendant at trial has since been questioned or repudiated by the greater scientific community. To address this issue, seven states have enacted “changed science writs,” providing petitioners who may have been wrongfully convicted with a more reliable state habeas mechanism to challenge their convictions. Under these statutes, petitioners may bring challenges based on now-discredited scientific evidence, new guidelines, expert recantations, and scientific advancements. Importantly, these …

Shading Sunshine: The Proliferation Of Exemptions To State Open Records Laws, Cat Reid

Duke Law Journal

State and local open records laws play a vital role in our democracy. They shed light on the darkest places, exposing corruption and holding the powerful accountable. Yet lawmakers are continually chipping away at the public’s right to know by limiting the information available under open records laws. Exemptions have been passed to bolster special interests, in response to investigative journalism, and to shield lawmakers. This Note examines the proliferation of exemptions and proposes a three-pronged solution that combines statutory improvements from federal FOIA and Florida’s open records law with a call for greater public engagement on the importance of …

From Founded To Funded: Challenges & Visions For Justice Tech, Kelli Raker

Duke Center on Law & Technology

No abstract provided.

Forensic Evidence And Rule 3.8: What Does The Use Of Bite Mark Evidence Tell Us About Prosecutorial Ethics?, Brendan Clemente

Duke Law & Technology Review

Rule 3.8 of the ABA’s Model Rules of Professional Conduct should include rules that specifically address unethical uses of forensic evidence in criminal prosecutions. Forensic evidence is common in criminal trials. But the traditional rules of ethics do not effectively address the use of forensic evidence. Rule 3.8 should include a rule requiring prompt and full disclosure of information about expert witnesses whom the prosecutor plans to call and all relevant information that the prosecutor knows about a forensic method’s application in the case. Rule 3.8 should also include a requirement that the prosecutor use reasonable diligence to learn about …

Playing The Long Game: The Role Of International Courts And Tribunals In The Russo-Ukrainian War, Paul W. Grimm, Kim Scheppele, Paul Stephan, Harold Hongju Koh, Oleksandra Matviichuk

Judicature International

No abstract provided.

The Unique Promise Of The Alaska Constitution: The Right To Rehabilitation, Adam Beyer

Alaska Law Review

The Alaska Constitution creates a unique promise for those convicted of crimes. In Abraham v. State, the Alaska Supreme Court held that article I, § 12 grants offenders a "right to rehabilitation." Such a right is uncommon; few states, if they have similar protections at all, have labeled it a right. In the years since Abraham, the Court has occasionally addressed claims invoking the right, making clear that its decision was not an aberration. The court's most thorough examination of the right occurred this term in Department of Corrections v. Stefano. This article seeks to examine and clarify …

Match Up: Increasing Disclosure Of Facial Recognition Technology With Criminal Discovery Rules, Paget Barranco

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Issues In Implementing Special Domestic Violence Criminal Jurisdiction In Alaska's Tribal Courts, Danika Watson

Alaska Law Review

Until 2022, all but one of the 229 Alaska tribes were barred from special domestic violence criminal jurisdiction (SDVCJ): Congress's jurisdictional tool for tribal courts to address domestic violence and hold perpetrators of violence against Alaska Native women criminally accountable. The reauthorization of the Violence Against Women Act (VAWA) in 2022 brought SDVCJ to Alaska's rural Native communities. This landmark achievement was made possible by decades of advocacy from Alaska's tribal, state, and federal leadership. In the wake of VAWA 2022, Alaska tribes and tribal justice systems face several significant legal, political, and cultural challenges. This Article outlines the legal …

Diversion And/As Decarceration, Katherine Beckett

Law and Contemporary Problems

No abstract provided.

North Carolina Law Enforcement Assisted Diversion (Lead): Considerations For Optimizing Eligibility And Referral, Allison R. Gilbert, Reah Siegel, Michele M. Easter, Meret S. Hofer, Josie Caves Sivaraman, Deniz Ariturk, Jeffrey W. Swanson, Marvin S. Swartz, Ruth Wygle, Grace Feng

Law and Contemporary Problems

No abstract provided.

Policing And Behavioral Health Conditions, Jeffrey W. Swanson, Marvin S. Swartz, Brandon Garrett

Law and Contemporary Problems

No abstract provided.

Expansion Of The Police Role In Responding To Mental Health Crises Over The Past Fifty Years: Driving Factors, Race Inequities And The Need To Rebalance Roles, Amy C. Watson, Taleed El-Sabawi

Law and Contemporary Problems

No abstract provided.

Triaging Mental Health Emergencies: Lessons From Philadelphia, Jennifer D. Wood, Evan Anderson

Law and Contemporary Problems

No abstract provided.

In Consideration Of The Behavioral Health Of Police, Meret S. Hofer, Jennifer Rineer

Law and Contemporary Problems

No abstract provided.

Not Up For Deliberation: Expanding The Peña-Rodriguez Protection To Cover Jury Bias Against Lgbtq+ Individuals, Brett V. Ries

Duke Law Journal

Discrimination against LGBTQ+ individuals persists within the United States criminal justice system, which is no surprise given the history of LGBTQ+ discrimination in the United States. Evidence of jurors convicting LGBTQ+ defendants—or, in some extreme cases, sentencing them to death—because of the defendant’s queer identity is especially concerning.

Standing in the way of protecting LGBTQ+ defendants from LGBTQ+ bias in jury deliberations is Federal Rule of Evidence 606(b), which prohibits defendants from using juror testimony regarding jury deliberations to impeach the jury’s verdict. However, in 2017, the Supreme Court in Peña-Rodriguez v. Colorado provided an exception to this “no-impeachment rule” …

Match Up: Increasing Disclosure Of Facial Recognition Technology With Criminal Discovery Rules, Paget Barranco

Duke Journal of Constitutional Law & Public Policy Sidebar

Facial recognition technology (FRT) is an automated computer tool that compares the image of one face in a target image to one or more images of other faces. Law enforcement at both the federal and state levels increasingly use FRT to identify unknown perpetrators of crimes. FRT has great potential to generate investigative leads and assist in solving crimes, but there are issues with the technology and a lack of transparency about how it is used. Further, law enforcement and prosecutors may not disclose information about the FRT search results that they relied on to identify a suspect, affecting defense …

The Impact Of The Rule Of Law On National Security In African Countries, Catherine Lena Kelly

Judicature International

No abstract provided.

Policing Fiscal Corruption: Tax Crime And Legally Corrupt Institutions In The United Kingdom, Branislav Hock

Law and Contemporary Problems

No abstract provided.

Foreword: Tax Evasion, Corruption And The Distortion Of Justice, Diane Ring, Costantino Grasso

Law and Contemporary Problems

No abstract provided.

Corruption, Tax Evasion, And The Distortion Of Justice: Global Challenges And International Responses, Lorena Bachmaier Winter, Donato Vozza

Law and Contemporary Problems

No abstract provided.

"The Producers" Of Tax Abuse: The Corrupting Effects Of Tax Laws And Tax Reliefs In The U.K. Film Industry, Lorenzo Pasculli, Stuart Maclennan

Law and Contemporary Problems

No abstract provided.

Developing A Working Model To Fight Fiscal Corruption: The Nexus At Which Tax Crimes And Corruption Meet, Pietro Sorbello, Stephen Holden

Law and Contemporary Problems

No abstract provided.

Error Aversions And Due Process, Brandon L. Garrett, Gregory Mitchell

Faculty Scholarship

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen-jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.

Across multiple national surveys, sampling more than 10,000 people, we find that a majority of Americans views false acquittals and …

Return To Sender?: Analyzing The Senior Leader “Open Letter” On Civilian Control Of The Military, Charles J. Dunlap Jr.

Faculty Scholarship

In response to the September 2022 open letter, “To Support and Defend: Principles of Civilian Control and Best Practices of Civil-Military Relations,” by eight former secretaries of defense and five former chairmen of the Joint Chiefs of Staff, this Article adds a piece to the unsettled puzzle of civil-military relations. The Letter attempts to detail “core principles or best practices” (CP/BP) regarding civil-military relations, and in response, this Article comments on and clarifies these well-intended efforts. This Article sequentially dissects each CP/BP in today’s context of hyper-politicization, partisanship, technology, and more. Where necessary, the Article explains how the law may …

Judging Firearms Evidence And The Rule 702 Amendments, Brandon Garrett, Nicholas Scurich, Eric Tucker, Hannah Bloom

Faculty Scholarship

No abstract provided.

Open Prosecution, Brandon L. Garrett, William E. Crozier, Kevin Dahaghi, Elizabeth J. Gifford, Catherine Grodensky, Adele Quigley-Mcbride, Jennifer Teitcher

Faculty Scholarship

Where the vast majority of criminal cases are resolved without a trial, the criminal system in the United States is a system of pleas, not trials. While a plea, its terms, and the resulting sentence entered in court are all public, how the outcome was negotiated remains almost entirely nonpublic. Prosecutors may resolve cases for reasons that are benign, thoughtful, and well-calibrated—or discriminatory, self-interested, and arbitrary—with very little oversight or sunlight. For years, academics and policymakers have called for meaningful data to fill this crucial void.

In this Article, we open the “black box” of prosecutorial discretion by tasking prosecutors …

Social Cognitive Processes Explain Bias In Juror Decisions, Jaime J. Castrellon, Shabnam Hakimi, Jacob M. Parelman, Lun Yin, Jonathan R. Law, Jesse A.G. Skene, David A. Ball, Artemis Malekpour, Donald H. Beskind, Neil Vidmar, John M. Pearson, J. H. Pate Skene, R. Mckell Carter

Faculty Scholarship

Jury decisions are among the most consequential social decisions in which bias plays a notable role. While courts take measures to reduce the influence of non-evidentiary factors, jurors may still incorporate biases into their decisions. One common bias, crime-type bias, is the extent to which the perceived strength of a prosecutor’s case depends on the severity of the crime. Moral judgment, affect and social cognition have been proposed as core processes underlying this and other biases. Behavioral evidence alone has been insufficient to distinguish these explanations. To identify the mechanism underlying crime-type bias, we collected functional magnetic resonance imaging patterns …

Minding Rights: Mapping Ethical And Legal Foundations Of ‘Neurorights’, Sjors Ligthart, Marcello Ienca, Gerben Meynen, Fruzsina Molnar-Gabor, Roberto Andorno, Christoph Bublitz, Paul Catley, Lisa Claydon, Thomas Douglas, Nita A. Farahany, Joseph J. Fins, Sara Goering, Pim Haselager, Fabrice Jotterand, Andrea Lavazza, Allan Mccay, Abel Wajnerman Paz, Stephen Rainey, Jesper Ryberg, Philipp Kellmeyer

Faculty Scholarship

The rise of neurotechnologies, especially in combination with artificial intelligence (AI)-based methods for brain data analytics, has given rise to concerns around the protection of mental privacy, mental integrity and cognitive liberty – often framed as “neurorights” in ethical, legal, and policy discussions. Several states are now looking at including neurorights into their constitutional legal frameworks, and international institutions and organizations, such as UNESCO and the Council of Europe, are taking an active interest in developing international policy and governance guidelines on this issue. However, in many discussions of neurorights the philosophical assumptions, ethical frames of reference and legal interpretation …