Digital Commons Network^™

The Challenge Of Convincing Ethical Prosecutors That Their Profession Has A Brady Problem, Adam M. Gershowitz

Faculty Publications

In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors?

This essay, in honor of Professor Bennett Gershman, points to …

Opioid Policing, Barbara A. Fedders

Faculty Publications

This Article identifies and explores a new, local law enforcement approach to alleged drug offenders. Initially limited to a few police departments, but now expanding rapidly across the country, this innovation takes one of two primary forms. The first is a diversion program through which officers refer alleged offenders to community-based social services rather than initiate criminal proceedings. The second form offers legal amnesty as well as priority access to drug detoxification programs to users who voluntarily relinquish illicit drugs. Because the upsurge in addiction to — and death from — opioids has spurred this innovation, I refer to it …

Determination Of Vehicle Speed From Recorded Video Using Reverse Projection Photogrammetry And File Metadata, Brandon Epstein, Bryce Westlake

Faculty Publications

The prevalence of security and in‐car video has increased the number of motor vehicle accidents captured on digital video. However, inconsistencies in how to accurately determine time and distance for vehicle speed has led to examinations with varying results. A potential solution for calculating time intervals is to use frame timing contained within many digital video file's metadata, recorded with 0.000001 sec precision. This paper examines a fatal motor vehicle accident where frame timing information was used with distance measurements from reverse projection photogrammetry to calculate vehicle speed. A margin of error was then calculated based on the accuracy in …

Policing The Admissibility Of Body Camera Evidence, Jeffrey Bellin, Shevarma Pemberton

Faculty Publications

Body cameras are sweeping the nation and becoming, along with the badge and gun, standard issue for police officers. These cameras are intended to ensure accountability for abusive police officers. But, if history is any guide, the videos they produce will more commonly be used to prosecute civilians than to document abuse. Further, knowing that the footage will be available as evidence, police officers have an incentive to narrate body camera videos with descriptive oral statements that support a later prosecution. Captured on an official record that exclusively documents the police officer’s perspective, these statements—for example, “he just threw something …

Police Legitimacy In Trinidad And Tobago: Resident Perceptions In A High-Crime Community, Ericka B. Adams

Faculty Publications

Violent crime in Trinidad and Tobago has increased over the last two decades, yet the police have been largely unsuccessful in reducing violence. Between 1999 and 2016, the murder rate increased by 475%. Despite the fact that the murder rate has increased, approximately 76 homicides are cleared each year, resulting in a low-homicide clearance rate. Using 40 semi-structured interviews with community members from a high-crime, low-income community in Trinidad and Tobago, this study examines residents’ experiences with police officers, and respondents’ willingness to work with the police to clear criminal cases. The results indicate that due to a lack of …

Evaluating The Impact Of Employing Local Tax Collectors To Improve State-Level Licensing Program Outcomes In Florida, Sergio Alvarez, Maria Bampasidou, Daniel Solís

Faculty Publications

© The Author(s) 2019. The improvement of public services is an important public policy objective, and several approaches have been proposed and implemented across all levels of government to achieve this goal. A recent policy in Florida (FL) fosters collaboration between local and state governments by allowing local tax collector (TC) offices to receive and support applications for the state’s concealed weapons (CW) license program. We use 80,020 application records to estimate process improvements brought about by this policy. Our analysis shows that by using TCs, the time for the application to be processed was one third the time it …

Criminal-Justice Apps: A Modest Step Toward Democratizing The Criminal Process, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Fixing The Broken System Of Assessing Criminal Appeals For Frivolousness, Andrew S. Pollis

Faculty Publications

This article seeks to end fifty years of confusion over how to proceed when a criminal defendant wants to appeal but appointed counsel sees no basis for doing so.

Practices vary among jurisdictions, but most require counsel to explain the predicament to the court—often at a level of detail that compromises the duty of loyalty to the client. Most also require the court to double-check counsel’s conclusion by conducting its own independent review of the record, thus burdening judges and blurring the important line between judge and advocate. And at no point in this process does the defendant have a …

Passionate Advocate, Laura Mcnally-Levine

Faculty Publications

Tribute to Judy Lipton

(Un)Civil Denaturalization, Cassandra Burke Robertson, Irina D. Manta

Faculty Publications

Over the last fifty years, naturalized citizens in the United States were able to feel a sense of finality and security in their rights. Denaturalization, wielded frequently as a political tool in the McCarthy era, had become exceedingly rare. Indeed, denaturalization was best known as an adjunct to criminal proceedings brought against former Nazis and other war criminals who had entered the country under false pretenses.

Denaturalization is no longer so rare. Naturalized citizens’ sense of security has been fundamentally shaken by policy developments in the last five years. The number of denaturalization cases is growing, and if current trends …

Third-Class Citizenship: The Escalating Legal Consequences Of Committing A “Violent” Crime, Michael M. O'Hear

Faculty Publications

For many years, American legislatures have been steadily attaching a wide range of legal consequences to convictions — and sometimes even just charges — for crimes that are classified as “violent.” These consequences affect many key aspects of the criminal process, including pretrial detention, eligibility for pretrial diversion, sentencing, eligibility for parole and other opportunities for release from incarceration, and the length and intensity of supervision in the community. The consequences can also affect a person’s legal status and rights long after the sentence for the underlying offense has been served. A conviction for a violent crime can result in …

The People V. Their Universities: How Popular Discontent Is Reshaping Higher Education Law, Ben L. Trachtenberg

Faculty Publications

Surveys taken since 2015 reveal that Americans exhibit stark partisan divisions in their opinions about colleges and universities, with recent shifts in attitudes driving changes to higher education law. In recent years, Democrats have become slightly more positive about higher education. Concurrently, Republicans have become extremely more negative, and a majority of Republicans now tells pollsters that colleges and universities have an overall negative effect on the country.

Particularly in legislative chambers controlled by Republicans, public and elite dissatisfaction with higher education has led to legal interventions into the governance of universities, with new laws related to faculty tenure, the …

Harassment, Technology, And The Modern Worker, Joseph Seiner

Faculty Publications

This symposium paper explores why sex discrimination is so prevalent in the technology sector workplace. This paper further examines what can be done to address these problems, and how employers can work to minimize the types of gender discrimination issues that currently exist in the modern economy. This ongoing issue must be examined much more closely by technology companies given the potential for this type of harm across the entire sector. There are many things that can be done to reduce this form of discrimination and to limit the potential liability for employers.

Keeping It In The Family: Minor Guardianship As Private Child Protection, Deirdre Smith

Faculty Publications

Due to the opioid use epidemic and an overwhelmed public child protection system, minor guardianship is an increasingly important tool for relative caregivers seeking to obtain legal authority regarding the children who come into their care because of a parent’s crisis. Yet minor guardianship originated in colonial law for an entirely different purpose: to protect legal orphans who had inherited property. Today’s guardianship laws are still based on this “orphan model” which does not fit today’s reality. This Article is the first to analyze how these outdated guardianship laws are being used as a form of “private child protection” and …

Tribute To Judy Lipton, Ayesha B. Hardaway

Faculty Publications

Tribute to Judy Lipton

Fructifying The First Amendment: An Asymmetric Approach To Constitutional Fact Doctrine, Amanda Reid

Faculty Publications

No abstract provided.

‘I Was So Much Older Then/I’M Younger Than That Now’: Valedictory Notes And Collage, Frank Pommersheim

Faculty Publications

No abstract provided.

Evidence-Based Lawyer Regulation, Elizabeth Chambliss

Faculty Publications

The legal profession is losing its authority over the regulation of legal services. Recent changes in antitrust law have put state bar associations under a spotlight. Competition from technology companies and concerns about access to justice have increased political pressure for market liberalization. Independent research is challenging the unique value of lawyers’ services, even in formal legal proceedings, and this research is increasingly well-organized and well-funded at the national level. The organized bar is asleep at the wheel and ill-prepared to respond.

This Article argues that the United States is moving toward evidence-based lawyer regulation, and suggests strategies for equipping …

All Things Considered: The Effect On Tribal Sovereignty Of Using Tribal Court Convictions In The United States Sentencing Guideline Calculations, Neil Fulton

Faculty Publications

No abstract provided.

Strict Liability For Genetic Privacy Violations In The Age Of Big Data, Benjamin Sundholm

Faculty Publications

(Excerpt)

The ethical issues implicated by the misuse of genetic information have been smoldering for over half a century, and the age of big data has turned them into a five-alarm fire. In recent years, medical researchers and commercial enterprises have been using technological advancements to develop a variety of innovative ways to use genetic information. For example, it is becoming increasingly common for people to learn more about their health and family history by paying direct-to-consumer (“DTC”) companies to analyze their genetic data. DTC companies store the results of these tests electronically and often share them with pharmaceutical companies …

Arrests As Guilt, Anna Roberts

Faculty Publications

An arrest puts a halt to one’s free life and may act as prelude to a new process. That new process—prosecution—may culminate in a finding of guilt. But arrest and guilt—concepts that are factually and legally distinct—frequently seem to be fused together. This fusion appears in many of the consequences of arrest, including the use of arrests in assessing “risk,” in calculating “recidivism,” and in identifying “offenders.” An examination of this fusion elucidates obstacles to key aspects of criminal justice reform. Efforts at reform, whether focused on prosecution or defense, police or bail, require a robust understanding of the differences …

Discipline And Policing, Kate Levine

Faculty Publications

A prime focus of police-reform advocates is the transparency of police discipline. Indeed, transparency is one of, the most popular accountability solutions for a wide swath of policing problems. This Article examines the “transparency cure” as it applies to Police Disciplinary Records (“PDRs”). These records are part of an officer’s personnel file and contain reported wrongdoing from supervisors, Internal Affairs Bureaus, and Citizen Complaint Review Boards.

This Article argues that making PDRs public is worthy of skeptical examination. It problematizes the notion that transparency is a worthy end goal for those who desire to see police-reform in general. Transparency is …

Lead Us Not Into Temptation: A Response To Barbara Fedders’S “Opioid Policing”, Anna Roberts

Faculty Publications

(Excerpt)

In “Opioid Policing,” Barbara Fedders contributes to the law review literature the first joint scholarly analysis of two drug policing innovations: Seattle’s Law Enforcement Assisted Diversion (LEAD) program and the Angel Initiative, which originated in Gloucester, Massachusetts. Even while welcoming the innovation and inspiration of these programs, she remains clear-eyed about the need to scrutinize their potential downsides. Her work is crucially timed. While still just a few years old, LEAD has been replicated many times and appears likely to be replicated still further—and to be written about much more. Inspired by Fedders’s call for a balanced take, this …

Prosecuting In The Shadow Of The Jury, Anna Offit

Faculty Publications

This Article offers an unprecedented empirical window into prosecutorial discretion, drawing on research between 2013 and 2017. The central finding is that jurors play a vital role in federal prosecutors' decision-making, professional identities, and formulations of justice. This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make commonsense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants, and victims, and (3) their own moral and professional character as public servants. By facilitating explicit consideration of the fairness of their cases from a public vantage point, I argue that …

Investigative Delegations: Predictable Predicaments, Nancy Amoury Combs

Faculty Publications

No abstract provided.

The Role Of Pressure Groups And Problem Definition In Crafting Legislative Solutions To The Opioid Crisis, Taleed El-Sabawi

Faculty Publications

Organized interest groups and federal administrative agencies have historically been influential in defining problem drug use during nationwide crisis. As such, the manner in which these pressure groups defined the problem may have influenced or, at least, provided support for legislators’ decisions to shy away from a criminal justice approach and towards acceptance of a more “health-oriented” — one that did not comprehensively address demand factors or demonstrate a commitment to reforming U.S. drug policy to meet international standards of best practice. In an effort to provide a snapshot of what such involvement may look like, this article explores the …

Carrots, Sticks And Problem Drug Use: The Law Enforcement Lobby's Contribution To The Policy Discourse On Drug Use & The Opioid Crisis, Taleed El-Sabawi

Faculty Publications

Despite the growing support for the idea that problem drug use should be treated like a chronic medical disease, some law enforcement interest groups, including trial court judges associations, prosecuting attorneys associations, and police associations (“law enforcement groups” or “criminal justice actors”), continue to argue for the use of the criminal justice system to address the nation’s drug crises. The justification for the use of the criminal justice system to oversee the psychological and medical treatment of persons with substance use disorders (SUDs) is based on the belief that persons with SUDs are deviants, who cannot refrain from engaging in …

Criminal Clear Statement Rules, Carissa Byrne Hessick, Joseph E. Kennedy

Faculty Publications

There is a broad consensus in the criminal justice community that our criminal statutes are a mess: They are imprecise, overly broad, and overly punitive. Legislatures write these laws because there are significant political incentives for them to be “tough on crime” and few incentives for them to write carefully crafted laws. The problems of over-criminalization thus seem to be both a predictable yet intractable consequence of the incentives that legislatures face. But this Article offers a novel solution: Judges should develop new clear statement rules to interpret criminal statutes. The Supreme Court has created clear statement rules to protect …

Talking About Black Lives Matter And #Metoo, Linda S. Greene, Lolita Buckner Inniss, Bridget J. Crawford, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia James, Keisha Lindsay

Faculty Publications

No abstract provided.

The Impact Of Gangs On Community Life In Trinidad, Ericka Adams, Patrice Morris, Edward Maguire

Faculty Publications

Trinidad and Tobago has more than 100 criminal gangs, some of which engage in high levels of homicide and violence. Recent research has shown that gang members in Trinidad and Tobago are more likely than nongang members to be arrested for violent, property, and drug crimes. As gangs continue to proliferate throughout the Caribbean, there is a pressing need to understand the nature of these gangs and their impact on the communities in which they are entrenched. Using data from interviews with community members, police officials, and gang members, as well as ethnographic observations from 10 high crime, predominantly Black …