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Articles 1 - 30 of 168
Full-Text Articles in Law
Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie
Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie
Jeffrey J. Rachlinski
Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results …
Altering Attention In Adjudication, Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie
Altering Attention In Adjudication, Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie
Jeffrey J. Rachlinski
Judges decide complex cases in rapid succession but are limited by cognitive constraints. Consequently judges cannot allocate equal attention to every aspect of a case. Case outcomes might thus depend on which aspects of a case are particularly salient to the judge. Put simply, a judge focusing on one aspect of a case might reach a different outcome than a judge focusing on another. In this Article, we report the results of a series of studies exploring various ways in which directing judicial attention can shape judicial outcomes. In the first study, we show that judges impose shorter sentences when …
Contrition In The Courtroom: Do Apologies Affect Adjudication?, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich
Contrition In The Courtroom: Do Apologies Affect Adjudication?, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich
Jeffrey J. Rachlinski
Apologies usually help to repair social relationships and appease aggrieved parties. Previous research has demonstrated that in legal settings, apologies influence how litigants and juries evaluate both civil and criminal defendants. Judges, however, routinely encounter apologies offered for instrumental reasons, such as to reduce a civil damage award or fine, or to shorten a criminal sentence. Frequent exposure to insincere apologies might make judges suspicious of or impervious to apologies. In a series of experimental studies with judges as research participants, we find that in some criminal settings, apologies can induce judges to be more lenient, but overall, apologizing to …
The Bounds Of Necessity, Jens David Ohlin
The Bounds Of Necessity, Jens David Ohlin
Jens David Ohlin
The current controversy surrounding the legality of torture can only be understood through an analysis of the distinction between justified necessity and excused necessity. Although there may be strong prudential reasons for international criminal courts to declare torture unlawful under any circumstance, this would not necessarily prevent a court from recognizing that an excuse may apply. However, the hallmark of the necessity excuse should not be understood, as it is in German law, as an exception that only applies when a defendant breaks the law to save someone close to him. Rather, the basic principle of the excuse ought to …
Of Myths And Mapp: A Response To Professor Magee, Sheri Johnson
Of Myths And Mapp: A Response To Professor Magee, Sheri Johnson
Sheri Lynn Johnson
No abstract provided.
Batson Ethics For Prosecutors And Trial Court Judges, Sheri Lynn Johnson
Batson Ethics For Prosecutors And Trial Court Judges, Sheri Lynn Johnson
Sheri Lynn Johnson
No abstract provided.
Correcting Deadly Confusion: Responding To Jury Inquiries In Capital Cases, Stephen P. Garvey, Sheri Lynn Johnson, Paul Marcus
Correcting Deadly Confusion: Responding To Jury Inquiries In Capital Cases, Stephen P. Garvey, Sheri Lynn Johnson, Paul Marcus
Sheri Lynn Johnson
In Weeks v. Angelone, 528 U.S. 225 (2000), the members of the capital sentencing jury asked for clarification of the jury instructions on the essential question of whether they were required to sentence Weeks to death upon the finding of certain aggravating factors. The judge merely informed the jurors to reread the instruction. The jurors returned with a death penalty sentence. The Supreme Court held that these jurors likely understood the instructions and at most Weeks had shown a slight possibility that the jurors believed they were precluded from considering mitigating evidence. However, the results of a mock jury study …
Racial Epithets In The Criminal Process, Sheri Lynn Johnson, John H. Blume, Patrick M. Wilson
Racial Epithets In The Criminal Process, Sheri Lynn Johnson, John H. Blume, Patrick M. Wilson
Sheri Lynn Johnson
The evidence of modern bias is often difficult to document and, even when documented, still capable of racially neutral interpretations. In contrast, the use of racial epithets is neither subtle nor ambiguous. Prior to the research that generated this article and our representation of two clients whose cases involved racial epithets, we would have assumed that the use of a racial epithet by a decision-maker in a criminal trial would be rare, but that assumption turns out to be wrong. We also would have assumed that the use of an epithet by any of the decision makers would lead to …
Racial Imagery In Criminal Cases, Sheri Lynn Johnson
Racial Imagery In Criminal Cases, Sheri Lynn Johnson
Sheri Lynn Johnson
No abstract provided.
Confessions, Criminals, And Community, Sheri Lynn Johnson
Confessions, Criminals, And Community, Sheri Lynn Johnson
Sheri Lynn Johnson
No abstract provided.
The Language And Culture (Not To Say Race) Of Peremptory Challenges, Sheri Lynn Johnson
The Language And Culture (Not To Say Race) Of Peremptory Challenges, Sheri Lynn Johnson
Sheri Lynn Johnson
No abstract provided.
Every Juror Wants A Story: Narrative Relevance, Third Party Guilt And The Right To Present A Defense, John H. Blume, Sheri L. Johnson, Emily C. Paavola
Every Juror Wants A Story: Narrative Relevance, Third Party Guilt And The Right To Present A Defense, John H. Blume, Sheri L. Johnson, Emily C. Paavola
Sheri Lynn Johnson
On occasion, criminal defendants hope to convince a jury that the state has not met its burden of proving them guilty beyond a reasonable doubt by offering evidence that someone else (a third party) committed the crime. Currently, state and federal courts assess the admissibility of evidence of third-party guilt using a variety of standards. In general, however, there are two basic approaches. Many state courts require a defendant to proffer evidence of some sort of direct link or connection between a specific third-party and the crime. A second group of state courts, as well as federal courts, admit evidence …
Victim Gender And The Death Penalty, Caisa Elizabeth Royer, Amelia Courtney Hritz, Valerie P. Hans, Theodore Eisenberg, Martin T. Wells, John H. Blume, Sheri Lynn Johnson
Victim Gender And The Death Penalty, Caisa Elizabeth Royer, Amelia Courtney Hritz, Valerie P. Hans, Theodore Eisenberg, Martin T. Wells, John H. Blume, Sheri Lynn Johnson
Sheri Lynn Johnson
Previous research suggests that cases involving female victims are more likely to result in death sentences. The current study examines possible reasons for this relationship using capital punishment data from the state of Delaware. Death was sought much more for murders of either male or female white victims compared to murders of black male victims. Analyzing capital sentencing hearings in Delaware from 1977-2007 decided by judges or juries, we found that both characteristics of the victims and characteristics of the murders differentiated male and female victim cases. The presence of sexual victimization, the method of killing, the relationship between the …
Post-Mccleskey Racial Discrimination Claims In Capital Cases, John H. Blume, Theodore Eisenberg, Sheri Lynn Johnson
Post-Mccleskey Racial Discrimination Claims In Capital Cases, John H. Blume, Theodore Eisenberg, Sheri Lynn Johnson
Sheri Lynn Johnson
In federal habeas corpus proceedings, Earl Matthews, an African American, South Carolina death row inmate, alleged that his death sentence was the result of invidious racial discrimination that violated the Equal Protection Clause of the Fourteenth Amendment. To support his contention, Matthews presented statistical evidence showing that in Charleston County, where a jury convicted him and sentenced him to death, the prosecutor was far more likely to seek a death sentence for a Black defendant accused of killing a white person than for any other racial combination of victims and defendants, and also that such a Black defendant was more …
Race And Recalcitrance: The Miller-El Remands, Sheri Johnson
Race And Recalcitrance: The Miller-El Remands, Sheri Johnson
Sheri Lynn Johnson
In Batson v. Kentucky, the Supreme Court held that a prosecutor may not peremptorily challenge a juror based upon his or her race. Although Baston was decided more than twenty years ago, some lower courts still resist its command. Three recent cases provide particularly egregious examples of that resistance. The Fifth Circuit refused the Supreme Court's instruction in Miller-El v. Cockrell, necessitating a second grant of certiorari in Miller-El v. Dretke. The court then reversed and remanded four lower court cases for reconsideration in light of Miller-El, but in two cases the lower courts have thus …
Future Dangerousness In Capital Cases: Always "At Issue", John H. Blume, Stephen P. Garvey, Sheri Lynn Johnson
Future Dangerousness In Capital Cases: Always "At Issue", John H. Blume, Stephen P. Garvey, Sheri Lynn Johnson
Sheri Lynn Johnson
Under Simmons v. South Carolina, a capital defendant who, if not sentenced to death, will remain in prison with no chance of parole is constitutionally entitled to an instruction informing the jury of the fact, but only if the prosecution engages in conduct that places the defendant's future dangerousness "at issue." Based on data collected from interviews with South Carolina capital jurors, Professors Blume, Garvey and Johnson argue that future dangerousness is on the minds of most capital jurors, and is thus "at issue" in virtually all capital trials, regardless of the prosecution's conduct. Accordingly, the authors argue that the …
Black Innocence And The White Jury, Sheri Johnson
Black Innocence And The White Jury, Sheri Johnson
Sheri Lynn Johnson
Racial prejudice has come under increasingly close scrutiny during the past thirty years, yet its influence on the decisionmaking of criminal juries remains largely hidden from judicial and critical examination. In this Article, Professor Johnson takes a close look at this neglected area. She first sets forth a large body of social science research that reveals a widespread tendency among whites to convict black defendants in instances in which white defendants would be acquitted. Next, she argues that none of the existing techniques for eliminating the influence of racial bias on criminal trials adequately protects minority-race defendants. She contends that …
Cross-Racial Identification Errors In Criminal Cases, Sheri Johnson
Cross-Racial Identification Errors In Criminal Cases, Sheri Johnson
Sheri Lynn Johnson
No abstract provided.
Specific Agreements About Race: A Response To Professor Sunstein, Sheri Johnson
Specific Agreements About Race: A Response To Professor Sunstein, Sheri Johnson
Sheri Lynn Johnson
No abstract provided.
Killing The Non-Willing: Atkins, The Volitionally Incapacitated, And The Death Penalty, John H. Blume, Sheri Lynn Johnson
Killing The Non-Willing: Atkins, The Volitionally Incapacitated, And The Death Penalty, John H. Blume, Sheri Lynn Johnson
Sheri Lynn Johnson
Jamie Wilson, nineteen years old and severely mentally ill, walked into a school cafeteria and started shooting. Two children died, and Jamie was charged with two counts of capital murder. Because he admitted his guilt, the only issue at his trial was the appropriate punishment. The trial judge assigned to his case, after hearing expert testimony on his mental state, found that mental illness rendered Jamie unable to conform his conduct to the requirements of law at the time of the crime—not impaired by his mental illness in his ability to control his behavior, but unable to control his behavior. …
Unconscious Racism And The Criminal Law, Sheri Johnson
Unconscious Racism And The Criminal Law, Sheri Johnson
Sheri Lynn Johnson
No abstract provided.
Race And The Decision To Detain A Suspect, Sheri Johnson
Race And The Decision To Detain A Suspect, Sheri Johnson
Sheri Lynn Johnson
No abstract provided.
Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie
Does Unconscious Racial Bias Affect Trial Judges?, Jeffrey J. Rachlinski, Sheri Johnson, Andrew J. Wistrich, Chris Guthrie
Sheri Lynn Johnson
Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the implicit association test, have found that most white Americans harbor implicit bias toward Black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results …
The Langugage And Culture (Not To Say Race) Of Peremptory Challenges, Sheri Lynn Johnson
The Langugage And Culture (Not To Say Race) Of Peremptory Challenges, Sheri Lynn Johnson
Sheri Lynn Johnson
No abstract provided.
The Color Of Truth: Race And The Assessment Of Credibility, Sheri Lynn Johnson
The Color Of Truth: Race And The Assessment Of Credibility, Sheri Lynn Johnson
Sheri Lynn Johnson
No abstract provided.
Probing "Life Qualification" Through Expanded Voir Dire, John H. Blume, Sheri Lynn Johnson, A. Brian Threlkeld
Probing "Life Qualification" Through Expanded Voir Dire, John H. Blume, Sheri Lynn Johnson, A. Brian Threlkeld
Sheri Lynn Johnson
The conventional wisdom is that most trials are won or lost in jury selection. If this is true, then in many capital cases, jury selection is literally a matter of life or death. Given these high stakes and Supreme Court case law setting out standards for voir dire in capital cases, one might expect a sophisticated and thoughtful process in which each side carefully considers which jurors would be best in the particular case. Instead, it turns out that voir dire in capital cases is woefully ineffective at the most elementary task--weeding out unqualified jurors. Empirical evidence reveals that many …
The Fourth Circuit's "Double-Edged Sword": Eviscerating The Right To Present Mitigating Evidence And Beheading The Right To The Assistance Of Counsel, John H. Blume, Sheri Lynn Johnson
The Fourth Circuit's "Double-Edged Sword": Eviscerating The Right To Present Mitigating Evidence And Beheading The Right To The Assistance Of Counsel, John H. Blume, Sheri Lynn Johnson
Sheri Lynn Johnson
Even before the sea change of Gideon v. Wainwright, the Supreme Court recognized not only an indigent’s right to the assistance of counsel in capital cases, but also his right to the effective assistance of counsel in capital cases. Since those auspicious beginnings, the Court has dramatically broadened the right to present mitigating evidence in the sentencing phase of a capital trial, thereby increasing the need for the guiding hand of counsel in capital sentencing. Thus, it is particularly tragic that the Fourth Circuit’s swiftly evolving approach to the prejudice prong of the ineffective assistance of counsel standard precludes capital …
Is It Wrong To Commute Death Row? Retribution, Atonement, And Mercy, Stephen P. Garvey
Is It Wrong To Commute Death Row? Retribution, Atonement, And Mercy, Stephen P. Garvey
Stephen P. Garvey
Is it a morally permissible exercise of mercy for a governor to commute the death sentences of everyone on a state's death row, as Governor Ryan recently did in Illinois? I distinguish three different theories of mercy. The first two theories locate mercy within a theory of punishment as retribution. The first theory treats mercy as a means by which to achieve equity. As such, this theory is not really a theory of mercy; it is instead a theory of justice. The second theory treats mercy as a genuine virtue independent of justice. In particular, mercy is understood as an …
Correcting Deadly Confusion: Responding To Jury Inquiries In Capital Cases, Stephen P. Garvey, Sheri Lynn Johnson, Paul Marcus
Correcting Deadly Confusion: Responding To Jury Inquiries In Capital Cases, Stephen P. Garvey, Sheri Lynn Johnson, Paul Marcus
Stephen P. Garvey
In Weeks v. Angelone, 528 U.S. 225 (2000), the members of the capital sentencing jury asked for clarification of the jury instructions on the essential question of whether they were required to sentence Weeks to death upon the finding of certain aggravating factors. The judge merely informed the jurors to reread the instruction. The jurors returned with a death penalty sentence. The Supreme Court held that these jurors likely understood the instructions and at most Weeks had shown a slight possibility that the jurors believed they were precluded from considering mitigating evidence. However, the results of a mock jury study …
Expert Testimony In Capital Sentencing: Juror Responses, John H. Montgomery, J. Richard Ciccone, Stephen P. Garvey, Theodore Eisenberg
Expert Testimony In Capital Sentencing: Juror Responses, John H. Montgomery, J. Richard Ciccone, Stephen P. Garvey, Theodore Eisenberg
Stephen P. Garvey
The U.S. Supreme Court, in Furman v. Georgia (1972), held that the death penalty is constitutional only when applied on an individualized basis. The resultant changes in the laws in death penalty states fostered the involvement of psychiatric and psychologic expert witnesses at the sentencing phase of the trial, to testify on two major issues: (1) the mitigating factor of a defendant’s abnormal mental state and (2) the aggravating factor of a defendant’s potential for future violence. This study was an exploration of the responses of capital jurors to psychiatric/psychologic expert testimony during capital sentencing. The Capital Jury Project is …