Law Commons^™

Racial Disparities In Plea Bargaining: An Examination Of Coercive Dynamics In The Negotiation Process, Naszya Iman Heidi Bradshaw

Scripps Senior Theses

This research addresses the enduring concerns about the ethical and legal intricacies of coercion in plea bargaining within the U.S. criminal justice system, with a focus on its correlation with racial disparities. This study acknowledges an existing research gap in comprehending the subtle dynamics of coercion and its differential impact on Black and Latin individuals. By employing the Cumulative Disadvantage Theory and Dual Processing Theory, the research aims to investigate the differential susceptibility to coercion during plea bargaining among individuals from Black and Latin communities compared to their white counterparts. Variables such as the severity of criminal charges, the quality …

Building Fierce Empathy, Binny Miller

Articles in Law Reviews & Other Academic Journals

In this Article I explore the process of building and sustaining empathy with clients in the context of representing juvenile lifers-- people convicted of serious crimes as children and sentenced to life or sentences that ensure that they spend most of their lives in prison--in a law school clinic. Before turning to my own lawyering experiences and those of my clinic students, I ground the discussion of empathy in the competing theories of Charles Ogletree and Abbe Smith about the value of empathic lawyering for public defenders. These theories, together with the contributions of other scholars, provide a springboard for …

Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit

Faculty Journal Articles and Book Chapters

Discrimination during voir dire remains a critical impediment to empaneling juries that reflect the diversity of the United States. While various solutions have been proposed, scholars have largely overlooked ethics rules as an instrument for preventing discriminatory behavior during jury selection. Focusing on the ABA Model Rule 8.4(g), which regulates professional misconduct, this article argues that ethics rules can, under certain conditions, offer an effective deterrent to exclusionary practices among legal actors. Part I examines the specific history, evolution, and application of revised ABA Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their …

Prosecuting In The Shadow Of The Jury, Anna Offit

Faculty Journal Articles and Book Chapters

This article offers an unprecedented empirical window into prosecutorial discretion drawing on long-term participatory 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 common sense 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, …

A Penal Colony For Bad Lawyers, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In this article I set out what I believe is an extreme and unconventional way to discipline egregiously bad lawyers. For starters, I think it might be useful to survey briefly the kinds of lawyering conduct currently subject to disciplinary sanctions. Regulation of the conduct of defense lawyers in the U.S. is hedged by various legal and professional rules that are enforced by courts and disciplinary bodies essentially to ensure a minimum level of competent and ethical representation. The Sixth Amendment right to counsel--the so-called “sacred” right--seeks to ensure at least a reasonable degree of lawyering skill. Also, professional codes …

The Prosecutor’S Duty Of Silence, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Prosecutors enjoy broad opportunities to communicate with the public outside the courtroom. Justice Holmes’s famous dictum -- “The theory of our system is that conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print” – is just that – a “theory.” The reality is otherwise. Prosecutors, and defense lawyers too, engage in extrajudicial speech frequently, and often irresponsibly. But in contrast to other lawyers, prosecutors have a higher “special” duty to serve justice rather than a private client. And …

Who Shouldn't Prosecute The Police, Kate Levine

Faculty Publications

The job of investigating and prosecuting police officers who commit crimes falls on local prosecutors, as it has in the wake of a number of highly public killings of unarmed African-Americans since Michael Brown died in August 2014. Although prosecutors officially represent “the people,” there is no group more closely linked to prosecutors than the officers they work with daily. This Article focuses on the undertheorized but critically important role that conflict-of-interest law plays in supporting the now-popular conclusion that local prosecutors should not handle cases against police suspects. Surprisingly, scholars have paid little attention to the policies and practices …

Investigating Jurors On Social Media, Caren Myers Morrison

Caren Myers Morrison

This essay proceeds in three parts. First, it examines the current state of jury investigations, and how they differ from those conducted in the past. Then, it describes the evolving legal and ethical positions that are combining to encourage such investigations. Finally, it offers a note of caution–condoning such investigations while keeping them hidden from jurors may be perceived as unfair and exploitative, risking a possible backlash from outraged jurors. Instead, I propose a modest measure to provide notice and explanation to jurors that their online information is likely to be searched, and why.

Investigating Jurors On Social Media, Caren Myers Morrison

Pace Law Review

This essay proceeds in three parts. First, it examines the current state of jury investigations, and how they differ from those conducted in the past. Then, it describes the evolving legal and ethical positions that are combining to encourage such investigations. Finally, it offers a note of caution–condoning such investigations while keeping them hidden from jurors may be perceived as unfair and exploitative, risking a possible backlash from outraged jurors. Instead, I propose a modest measure to provide notice and explanation to jurors that their online information is likely to be searched, and why.

The Ethical Obligations Of Defence Counsel In Sexual Assault Cases, Elaine Craig

Osgoode Hall Law Journal

The treatment of sexual assault complainants by defence counsel has been the site of significant debate for legal ethicists. Even those with the strongest commitment to the ethics of zealous advocacy struggle with how to approach the cross-examination of sexual assault complainants. One of the most contentious issues in this debate pertains to the use of bias, stereotype and discriminatory tactics to advance one’s client’s position. This paper focuses on the professional responsibilities defence lawyers bear in sexual assault cases. Its central claim is as follows: Defence counsel are ethically obligated to restrict their carriage of a sexual assault case …

Mandatory Disclosure: California Bar Refuses To Adopt Proposed Rule To Confront Client Perjury , David B. Wasson

Pepperdine Law Review

No abstract provided.

Everyone Deserves Defense, Peter Keane

Publications

In his decades as a public defender, Peter Keane represented murderers and other criminals as skillfully as he could – even when he knew they were guilty . Keane believes every one, no matter what they’ve done, deserves to have somebody on their side.

Reports Of Batson's Death Have Been Greatly Exaggerated: How The Batson Doctrine Enforces A Normative Framework Of Legal Ethics, Laura I. Appleman

ExpressO

In this article, I aim to explain how the Batson procedure enforces a normative framework of legal ethics, a theory which I hope will be of use to both criminal law professors and scholars of legal ethics. Despite many recent prudential attacks against the Batson procedure and the peremptory challenge, I contend that Batson has a largely unarticulated ethical component, one that invokes a lawyer’s professional responsibility. Accordingly, using legal ethics as a lens through which to interpret Batson sheds new light on the doctrine. Batson’s ethical imperative affects the norms of the legal profession itself. By fostering a non-discrimination …

Avoiding Error In Closing Argument, H. Patrick Furman

Publications

No abstract provided.

The Criminal Defense Lawyer's Reliance On Bias And Prejudice, Eva S. Nilsen

Faculty Scholarship

This Article is divided into three parts. Part I examines both the many contexts in which criminal defense lawyers and clinical students encounter bias and prejudice,¹² and the commonly-raised objections to its exploitation. Part II looks at the way the tactical use of bias relates to a lawyer's duty of zealous advocacy. Here, the Article focuses on whether existing ethics rules provide guidance for a lawyer's use of bias and whether proposed rules aimed at eliminating such advocacy would improve or diminish justice. This article argues against such efforts because they impinge on legitimate lawyering, and they may distract …

Role Of The Criminal Defense Lawyer In Representing The Mentally Impaired Defendant: Zealous Advocate Or Officer Of The Court, Rodney J. Uphoff

Faculty Publications

This article examines a difficult question in the representation of mentally impaired criminal defendants: should counsel be obligated to inform the court of doubts about a client's competency to stand trial even though doing so may be contrary to the client's wishes or best interests? Professor Rodney J. Uphoff analyzes authorities that impose such an obligation on defense lawyers, including an American Bar Association Criminal Justice Standard and a recent decision of the Wisconsin Supreme Court, State v. Johnson. Uphoff concludes that these authorities needlessly undercut the mentally impaired defendant's right to zealous representation. He proposes an alternative ethical model …

Judge Frankel And The Adversary System, William T. Pizzi

Publications

No abstract provided.

Legal Ethics And The Prosecuting Attorney, John O. Kizer

West Virginia Law Review

No abstract provided.

Recent Cases, Law Review Staff

Vanderbilt Law Review

CRIMINAL PROCEDURE--FACIAL EXPRESSIONS AND GESTICULATIONS OF TRIAL JUDGE--PREJUDICIAL EFFECT ON JURY

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EMPLOYMENT SECURITY ACT--PERSONS COUNTED TO DETERMINE WHETHER AN EMPLOYING UNIT HAS REQUISITE NUMBER OF EMPLOYEES TO CONSTITUTE AN "EMPLOYER"--STUDENTS WORKING FOR SCHOOL TO PAY TUITION

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FEDERAL JURISDICTION--JURISDICTIONAL AMOUNT--INJUNCTION SUITS

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LEGAL ETHICS--SOLICITATION AND FEE SPLITTING--ATTORNEY CONTRACTING WITH LABOR UNION TO REPRESENT UNION MEMBERS FOR CONTIGENT FEE

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NEGLIGENCE--LANDOWNER'S DUTY OF CARE--DUTY OWED TO FIREMAN

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NEGLIGENCE--STANDARD OF CARE--ASSURED-CLEAR-DISTANCE-AHEAD RULE

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PERSONAL PROPERTY--TENANCY BY THE ENTIRETY--BANK ACCOUNTS

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PLEADING--GENERAL ISSUE--SCOPE IN TENNESSEE

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TORTS--CHARITABLE INSTITUTIONS--TORT LIABILITY OF CHARITABLE INSTITUTIONS UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR