Digital Commons Network^™

Forensic Science: Daubert's Failure, Paul C. Giannelli

Faculty Publications

In 2015, a federal judge noted that “[m]any defendants have been convicted and spent countless years in prison based on evidence by arson experts who were later shown to be little better than witch doctors.” In the same year, a White House science advisor observed: “Suggesting that bite marks [should] still be a seriously used technology is not based on science, on measurement, on something that has standards, but more of a gut-level reaction.” According to another judge “[a]s matters currently stand, a certainty statement regarding toolmark pattern matching has the same probative value as the vision of a psychic.” …

Erasing The Mark Of A Criminal Past: Ex-Offenders’ Expectations And Experiences With Record Clearance, Ericka Adams, Elsa Chen, Rosella Chapman

Faculty Publications

Through the process of record clearance, individuals can have certain minor convictions removed from their criminal records or designated as expunged. This study analyzes data gathered from semi-structured interviews with 40 persons with past criminal convictions to examine the expectations of individuals who seek record clearance and the extent to which completion of the process facilitates efforts to reintegrate into society and desist from crime. The analysis finds that record clearance benefits ex-offenders through external effects, such as the reduction of barriers to employment, and internal processes, such as the facilitation of cognitive transformation and the affirmation of a new …

What Do I Do With The Porn On My Computer: How A Lawyer Should Counsel Clients About Physical Evidence, Rodney J. Uphoff, Peter A. Joy

Faculty Publications

For years, criminal defense lawyers and commentators have wrestled with thorny ethical and legal issues surrounding defense counsel's obligations with respect to handling items of physical evidence. Commentators have usually focused on the question of whether the lawyer should take possession of physical evidence of a crime as well as on counsel's obligations and options once the lawyer purposively or inadvertently comes into possession of such evidence. After discussing what the ethics rules and the law require concerning handling physical evidence, commentators have generally cautioned lawyers not to take possession of suspected contraband or possible evidence of a crime, except …

Recalibrating The Federal Economic Crime Guideline: An Admiring Rejoinder To Judge Bennett And Friends, Frank O. Bowman Iii

Faculty Publications

I have read with the greatest pleasure the article on federal white-collar crime sentencing by U.S. District Judge Mark Bennett and Professors Justin Levinson and Koichi Hioki. They review the history of fraud sentencing in the Sentencing Guidelines era, offer a persuasive critique of some deficiencies in the current regime, present the results of their own survey of judicial attitudes toward sentencing a representative fraud case, and propose a series of useful prescriptions for change. Inasmuch as they are kind enough to cite my own work approvingly throughout the article, it will come as no surprise that I agree with …

The Strange Life Of Stanley V. Illinois: A Case Study In Parent Representation And Law Reform, Josh Gupta-Kagan

Faculty Publications

This Article helps describe the growth of parent representation through an analysis of Stanley v. Illinois—the foundational Supreme Court case that established parental fitness as the constitutional lynchpin of any child protection case. The Article begins with Stanley’s trial court litigation, which illustrates the importance of vigorous parental representation and an effort by the court to prevent Stanley from obtaining an attorney. It proceeds to analyze how family courts applied it (or not) in the years following the Supreme Court’s decision and what factors have led to a recent resurgence of Stanley’s fitness focus.

Despite Stanley’s requirement that states prove …

The School To Prison Pipeline's Legal Architecture: Lessons From The Spring Valley Incident And Its Aftermath, Josh Gupta-Kagan

Faculty Publications

This Article examines the 2015 Spring Valley High School incident – the high-profile arrest of a Columbia, South Carolina high school student for “disturbing schools” in which a school resource officer threw her out of her desk – to identify and illustrate the core elements of the school-to-prison pipeline’s legal architecture, and to evaluate legal reforms in response to growing concern over the pipeline.

The Spring Valley incident illustrates, first, how broad criminal laws transform school discipline incidents into law enforcement matters. Second, it illustrates how legal instruments that should limit the role of police officers assigned to schools (school …

Measuring The Creative Plea Bargain, Thea B. Johnson

Faculty Publications

A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining. But what is a good deal? And how do defense attorneys secure such deals? Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence. Through empirical research, this Article examines the measure of a good plea and the work that goes into negotiating such a plea. …

Race, Rhetoric, And Judicial Opinions: Missouri As A Case Study, Brad Desnoyer, Anne Alexander

Faculty Publications

This Essay studies the relationship between race, rhetoric, and history in three twentieth century segregation cases: State ex rel. Gaines v. Canada, Kraemer v. Shelley, and Liddell v. Board of Education. Part I gives a brief overview of the scholarship of Critical Race Theory, majoritarian narratives and minority counter-narratives, and the judiciary’s rhetoric in race-based cases. Part II analyzes the narratives and language of Gaines, Kraemer, and Liddell, provides the social context of these cases, and traces their historical outcomes.

The Essay contends that majoritarian narratives with problematic themes continue to perpetuate even though court opinions have evolved to use …

The Trial And Incarceration Of Andy Dufresne, Jonathan Van Patten

Faculty Publications

No abstract provided.

A New Balance Of Evils: Prosecutorial Misconduct, Iqbal, And The End Of Absolute Immunity, Mark C. Niles

Faculty Publications

Criminal prosecutors wield immense power in the criminal justice system. While the majority of prosecutors exercise this power in a professional manner, there is compelling evidence of a serious and growing problem of prosecutorial misconduct in this country. Although much prosecutorial misconduct results in the violation of the constitutional and other legal rights of criminal defendants, prosecutors are protected from any liability arising from these violations in all but the most exceptional cases by the defense of absolute immunity. The US. Supreme Court has justified the application of absolute prosecutorial immunity, in part, by noting that other means of incentivizing …

Presidential Human Rights Talk, Margaret E. Mcguiness

Faculty Publications

In response to Professor Harold Hongju Koh's March 2017 keynote at Washburn University, "The Trump Administration and International Law," this essay examines the diplomatic and political rhetoric deployed by past presidents in support of human rights to argue that such "presidential human rights talk" represented an important element of U.S. human rights policy and promoted the transnational transmission of human rights norms. President Trump's complete abandonment of presidential human rights talk signals an end to what remains of American "human rights exceptionalism." Combined with Trump's "America First" approach to foreign policy, which rejects the value of the international institutions the …

Incorporating Social Justice Into The Law School Curriculum With A Hybrid Doctrinal/Writing Course, Rosa Castello

Faculty Publications

Educating future lawyers is about more than just teaching them substantive law. We are preparing professionals who will go out into our world and shape and affect it in deep and impacting ways. They will make law, enforce law, determine policy, defend people, advocate, and influence lives and businesses. Therefore, any thorough law school education should teach social justice and encourage students to become more engaged in activism.

One way to incorporate social justice into the law school curriculum is to offer specific courses focused on social justice. However, administrators may be concerned about demand for such classes or ability …

Religious Accomodation, Religious Tradition, And Political Polarization, Marc O. Degirolami

Faculty Publications

A religious accommodation is an exemption from compliance with the law for some but not for others. One might therefore suppose that before granting an accommodation, courts would inquire about whether a legal interference with religious belief or practice is truly significant, if only to evaluate whether the risk of political polarization that attends accommodation is worth hazarding. But that is not the case: any assessment of the significance of a religious belief or practice within a claimant’s belief system is strictly forbidden.

Two arguments are pressed in support of this view: (1) courts have institutional reasons for acquiescing on …

Dismissals As Justice, Anna Roberts

Faculty Publications

More than a third of our states have given judges a little-known power to dismiss prosecutions, not because of legal or factual insufficiency, but for the sake of justice. Whether phrased as dismissals “in furtherance of justice” or dismissals of de minimis prosecutions, these exercises of judicial power teach two important lessons.

First, judges exercising these dismissals are rebutting the common notion that in the face of over-criminalization and over-incarceration they are powerless to do more than rubber-stamp prosecutorial decision making. In individual cases, they push back against some of the most problematic aspects of our criminal justice system: its …

The Nuremberg Trials: A Summary Introduction, John Q. Barrett

Faculty Publications

No abstract provided.

The Abiding Problem Of Witness Statements In International Criminal Trials, Megan A. Fairlie

Faculty Publications

Recent amendments to the Rules of Procedure and Evidence for the International Criminal Court (“ICC”) give Trial Chambers the discretion to admit unexamined, party-generated witness statements in lieu of live testimony. The use of this evidence—which undermines the right of confrontation and prevents the judges from independently assessing witness credibility—is now a hotly contested issue in each of the Court’s ongoing trials. As ICC judges grapple with the thorny question of how to implement these new provisions without undermining the right to a fair trial, this Article, which is the first to examine the rule amendments and their early implementation, …

Curbing Excessive Force: A Primer On Barriers To Police Accountability, Kami N. Chavis, Conor Degnan

Faculty Publications

This Issue Brief summarizes some of the traditional mechanisms for holding police accountable for misconduct, offers a critique of each, and ends with suggestions for the future of police accountability. Part I focuses on some of the legal and structural impediments to police accountability including the inherent conflicts of interest that frequently prevent local prosecutors from prosecuting police officers accused of using excessive force. Part I also discusses how the doctrine of qualified immunity shields officers from civil liability when a suspect is harmed or dies in police custody. Part II explores how the Department of Justice (DOJ) has failed …

Biometric Cyberintelligence And The Posse Comitatus Act, Margaret Hu

Faculty Publications

This Article addresses the rapid growth of what the military and the intelligence community refer to as “biometric-enabled intelligence.” This newly emerging intelligence tool is reliant upon biometric databases—for example, digitalized storage of scanned fingerprints and irises, digital photographs for facial recognition technology, and DNA. This Article introduces the term “biometric cyberintelligence” to more accurately describe the manner in which this new tool is dependent upon cybersurveillance and big data’s massintegrative systems.

This Article argues that the Posse Comitatus Act of 1878, designed to limit the deployment of federal military resources in the service of domestic policies, will be difficult …

From Rome To The Military Justice Acts Of 2016 And Beyond: Continuing Civilianization Of The Military Criminal Legal System, Fredric I. Lederer

Faculty Publications

No abstract provided.

Grave Crimes And Weak Evidence: Fact-Finding Evolution In International Criminal Law, Nancy Amoury Combs

Faculty Publications

International criminal courts carry out some of the most important work that a legal system can conduct: prosecuting those who have visited death and destruction on millions. Despite the significance of their work--or perhaps because of it--international courts face tremendous challenges. Chief among them is accurate fact-finding. With alarming regularity, international criminal trials feature inconsistent, vague, and sometimes false testimony that renders judges unable to assess with any measure of certainty who did what to whom in the context of a mass atrocity. This Article provides the first-ever empirical study quantifying fact-finding in an international criminal court. The study shines …

In Memoriam: Tribute To Jack Greenberg, Theodore M. Shaw

Faculty Publications

No abstract provided.

Dna Exonerations And The Elusive Promise Of Criminal Justice Reform, Carissa Byrne Hessick

Faculty Publications

Review of Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent (Daniel S. Medwed ed., Cambridge University Press 2017).

Capital Punishment Of Unintentional Felony Murder, Brenner M. Fissell, Guyora Binder, Robert Weisberg

Faculty Publications

Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment. This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill. The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death. This Article shows that this mechanical reading of precedent is mistaken, because the …

Privacy And Court Records: Online Access And The Loss Of Practical Obscurity, David S. Ardia

Faculty Publications

Court records present a conundrum for privacy advocates. Public access to the courts has long been a fundamental tenant of American democracy, helping to ensure that our system of justice functions fairly and that citizens can observe the actions of their government. Yet court records contain an astonishing amount of private and sensitive information, ranging from social security numbers to the names of sexual assault victims. Until recently, the privacy harms that attended the public disclosure of court records were generally regarded as insignificant because court files were difficult to search and access. But this “practical obscurity” is rapidly disappearing …

Court Fines And Fees: Criminalizing Poverty In North Carolina, Heather Hunt, Gene R. Nichol Jr.

Faculty Publications

No abstract provided.

Civilizing Criminal Settlements, Russell M. Gold, Carissa Byrne Hessick, F. Andrew Hessick

Faculty Publications

No abstract provided.

Valuing Identity, Osamudia James

Faculty Publications

No abstract provided.

White Religious Educators Resisting White Fragility: Lessons From Mystics, Mary E. Hess

Faculty Publications

Decades of work in dismantling racism have not yielded the kind of results for which religious educators have hoped. One primary reason has been what scholars term “white fragility,” a symptom of the structural racism which confers systemic privilege upon White people. Lessons learned from Christian mystics point to powerful ways to confront and resist the siren call of such formation and instead to make resisting racism an integral part of Christian identity for White people.

If Hindsight Is 20/20, Our Justice System Should Not Be Blind To New Evidence Of Innocence: A Survey Of Post-Conviction New Evidence Statutes And A Proposed Model, Paige Kaneb

Faculty Publications

No abstract provided.

Focusing On Men And Fathers: A Challenge For Social Work Research And Practice, Kevin Shafer, Jennifer L. Bellamy

Faculty Publications

In introducing this special issue of Social Work Research, we feel it is important to discuss why social work practice and research with men and fathers is of critical importance and deserving of specific attention. Social work researchers and practitioners need to focus on men and fathers, both as a special population and as subpopulations of other groups. A focus on men and fathers is critical because (a) it is a social justice issue for men, women, and children; (b) men are underserved by helping professionals, including social workers, particularly in certain contexts and programs; (c) social workers are uniquely …