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Articles 1 - 30 of 38
Full-Text Articles in Law
False Accuracy In Criminal Trials: The Limits And Costs Of Cross Examination, Lisa Kern Griffin
False Accuracy In Criminal Trials: The Limits And Costs Of Cross Examination, Lisa Kern Griffin
Faculty Scholarship
According to the popular culture of criminal trials, skillful cross-examination can reveal the whole “truth” of what happened. In a climactic scene, defense counsel will expose a lying accuser, clear up the statements of a confused eyewitness, or surface the incentives and biases in testimony. Constitutional precedents, evidence theory, and trial procedures all reflect a similar aspiration—that cross-examination performs lie detection and thereby helps to produce accurate outcomes. Although conceptualized as a protection for defendants, cross-examination imposes some unexplored costs on them. Because it focuses on the physical presence of a witness, the current law of confrontation suggests that an …
The Right To A Glass Box: Rethinking The Use Of Artificial Intelligence In Criminal Justice, Brandon L. Garrett, Cynthia Rudin
The Right To A Glass Box: Rethinking The Use Of Artificial Intelligence In Criminal Justice, Brandon L. Garrett, Cynthia Rudin
Faculty Scholarship
Artificial intelligence (“AI”) increasingly is used to make important decisions that affect individuals and society. As governments and corporations use AI more pervasively, one of the most troubling trends is that developers so often design it to be a “black box.” Designers create AI models too complex for people to understand or they conceal how AI functions. Policymakers and the public increasingly sound alarms about black box AI. A particularly pressing area of concern has been criminal cases, in which a person’s life, liberty, and public safety can be at stake. In the United States and globally, despite concerns that …
The Brady Database, Brandon L. Garrett, Adam M. Gershowitz, Jennifer Teitcher
The Brady Database, Brandon L. Garrett, Adam M. Gershowitz, Jennifer Teitcher
Faculty Scholarship
The Supreme Court’s landmark ruling in Brady v. Maryland turns sixty this year. The Brady doctrine, which requires the government to disclose favorable and material evidence to the defendant, is one of the most frequently litigated criminal procedure issues. Yet, despite decades of Brady cases in federal and state courts, we still know relatively little about how Brady claims are litigated, adjudicated, and what such claims can tell us about the criminal justice system writ large. Scholars are in the dark about how often Brady violations occur, whether it is primarily the fault of prosecutors or the police, whether violations …
Error Aversions And Due Process, Brandon L. Garrett, Gregory Mitchell
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 …
Judging Firearms Evidence And The Rule 702 Amendments, Brandon Garrett, Nicholas Scurich, Eric Tucker, Hannah Bloom
Judging Firearms Evidence And The Rule 702 Amendments, Brandon Garrett, Nicholas Scurich, Eric Tucker, Hannah Bloom
Faculty Scholarship
No abstract provided.
Life Without Parole Sentencing In North Carolina, Brandon L. Garrett, Travis M. Seale-Carlisle, Karima Modjadidi, Kristen M. Renberg
Life Without Parole Sentencing In North Carolina, Brandon L. Garrett, Travis M. Seale-Carlisle, Karima Modjadidi, Kristen M. Renberg
Faculty Scholarship
What explains the puzzle of life without parole (LWOP) sentencing in the United States? In the past two decades, LWOP sentences have reached record highs, with over 50,000 prisoners serving LWOP. Yet during this same period, homicide rates have steadily declined. The U.S. Supreme Court has limited the use of juvenile LWOP in Eighth Amendment rulings. Further, death sentences have steeply declined, reaching record lows. Although research has examined drivers of incarceration patterns for certain sentences, there has been little research on LWOP imposition. To shed light on what might explain the sudden rise of LWOP, we examine characteristics of …
Monitoring The Misdemeanor Bail Reform Consent Decree In Harris County, Texas, Brandon L. Garrett, Sandra Guerra Thompson
Monitoring The Misdemeanor Bail Reform Consent Decree In Harris County, Texas, Brandon L. Garrett, Sandra Guerra Thompson
Faculty Scholarship
No abstract provided.
Of Protest And Property: An Essay In Pursuit Of Justice For Breonna Taylor, H. Timothy Lovelace Jr.
Of Protest And Property: An Essay In Pursuit Of Justice For Breonna Taylor, H. Timothy Lovelace Jr.
Faculty Scholarship
In March 2020, Louisville police officers fatally shot Breanna Taylor in her apartment while executing a no-knock warrant. There was great outrage over the killing of the innocent woman, and Kentucky Attorney General Daniel Cameron led an investigation of the officer-involved shooting.
Activists protested in Louisville after Taylor's killing, and when Cameron's investigation appeared stalled, these activists even conducted a sit-in on Cameron's front lawn. They demanded immediate justice for Taylor. Cameron sharply responded, lecturing the activists on how to achieve justice. He contended that neither trespassing on private property nor escalation in tactics could advance the cause of justice. …
The Wandering Officer, Ben Grunwald, John Rappaport
The Wandering Officer, Ben Grunwald, John Rappaport
Faculty Scholarship
“Wandering officers” are law-enforcement officers fired by one department, sometimes for serious misconduct, who then find work at another agency. Policing experts hold disparate views about the extent and character of the wandering-officer phenomenon. Some insist that wandering officers are everywhere—possibly increasingly so—and that they’re dangerous. Others, however, maintain that critics cherry-pick rare and egregious anecdotes that distort broader realities. In the absence of systematic data, we simply do not know how common wandering officers are or how much of a threat they pose, nor can we know whether and how to address the issue through policy reform.
In this …
The Transparency Of Jail Data, William E. Crozier, Brandon L. Garrett, Arvind Krishnamurthy
The Transparency Of Jail Data, William E. Crozier, Brandon L. Garrett, Arvind Krishnamurthy
Faculty Scholarship
Across the country, pretrial policies and practices concerning the use of cash bail are in flux, but it is not readily possible for members of the public to assess whether or how those changes in policy and practice are affecting outcomes. A range of actors affect the jail population, including: law enforcement who make arrest decisions, magistrates and judges who rule at hearings on pretrial conditions and may modify such conditions, prosecutors and defense lawyers who litigate at hearings, pretrial-service providers who assist in evaluation and supervision of persons detained pretrial, and the custodian of the jail who supervises facilities. …
Judging Risk, Brandon L. Garrett, John Monahan
Judging Risk, Brandon L. Garrett, John Monahan
Faculty Scholarship
Risk assessment plays an increasingly pervasive role in criminal justice in the United States at all stages of the process, from policing, to pre-trial, sentencing, corrections, and during parole. As efforts to reduce incarceration have led to adoption of risk-assessment tools, critics have begun to ask whether various instruments in use are valid and whether they might reinforce rather than reduce bias in criminal justice outcomes. Such work has neglected how decisionmakers use risk-assessment in practice. In this Article, we examine in detail the judging of risk assessment and we study why decisionmakers so often fail to consistently use such …
The Costs And Benefits Of Forensics, Brandon L. Garrett
The Costs And Benefits Of Forensics, Brandon L. Garrett
Faculty Scholarship
Supreme Court Justice Louis Brandeis famously wrote that states can be laboratories for experimentation in law and policy. Disappointingly, however, the actual laboratories that states and local governments run are not a home for experimentation. We do not have adequate information about either the costs or the benefits of forensic testing or allocation of resources. Increased spending and expansion of crime laboratories has perversely accompanied growing backlogs. Poor quality control has resulted in a series of audits and even closures of crime laboratories. In response to these problems, however, some laboratories and some entire states have developed new approaches toward …
Self-Policing: Dissemination And Adoption Of Police Eyewitness Policies In Virginia, Brandon L. Garrett
Self-Policing: Dissemination And Adoption Of Police Eyewitness Policies In Virginia, Brandon L. Garrett
Faculty Scholarship
Professional policing organizations emphasize the importance of the adoption of sound police policies and procedures, but traditionally doing so has been left to individual agencies. State and local government typically does not closely regulate police, and neither federal constitutional rulings nor state law typically sets out in any detail the practices that police should follow. Thus, law enforcement agencies must themselves draft and disseminate policy. This paper presents the results of studies used to assess the adoption of eyewitness identification policies by law enforcement agencies in Virginia. Policymakers were focused on this problem because Virginia experienced a series of DNA …
The State Of The Death Penalty, Ankur Desai, Brandon L. Garrett
The State Of The Death Penalty, Ankur Desai, Brandon L. Garrett
Faculty Scholarship
The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s. In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty. What explains this remarkable and quite unexpected trend? In this Article, we present new analysis of state-level legislative changes that might have been expected …
Innovative Justice: Federal Reentry Drug Courts – How Should We Measure Success?, Timothy D. Degiusti
Innovative Justice: Federal Reentry Drug Courts – How Should We Measure Success?, Timothy D. Degiusti
Duke Law Master of Judicial Studies Theses
In response to the drug abuse and addiction epidemic in the United States, innovative ways of dealing with non-violent drug offenders within the criminal justice system began to emerge in the late 1980s. Special court dockets – commonly referred to as drug courts – were developed featuring an interdisciplinary team of criminal justice and mental health professionals, led by a presiding judge. Drug courts and other problem-solving courts have proliferated within the state court system, numbering 3,057 by the end of 2014. The use of such courts is expanding among the states, but the federal courts have been slow to …
Honesty Without Truth: Lies, Accuracy, And The Criminal Justice Process, Lisa Kern Griffin
Honesty Without Truth: Lies, Accuracy, And The Criminal Justice Process, Lisa Kern Griffin
Faculty Scholarship
Focusing on “lying” is a natural response to uncertainty but too narrow of a concern. Honesty and truth are not the same thing and conflating them can actually inhibit accuracy. In several settings across investigations and trials, the criminal justice system elevates compliant statements, misguided beliefs, and confident opinions while excluding more complex evidence. Error often results. Some interrogation techniques, for example, privilege cooperation over information. Those interactions can yield incomplete or false statements, confessions, and even guilty pleas. Because of the impeachment rules that purportedly prevent perjury, the most knowledgeable witnesses may be precluded from taking the stand. The …
Introduction: Symposium On “Forensics, Statistics, And Law”, Brandon L. Garrett
Introduction: Symposium On “Forensics, Statistics, And Law”, Brandon L. Garrett
Faculty Scholarship
No abstract provided.
Evidence-Informed Criminal Justice, Brandon L. Garrett
Evidence-Informed Criminal Justice, Brandon L. Garrett
Faculty Scholarship
The American criminal justice system is at a turning point. For decades, as the rate of incarceration exploded, observers of the American criminal justice system criticized the enormous discretion wielded by key actors, particularly police and prosecutors, and the lack of empirical evidence that has informed that discretion. Since the 1967 President’s Commission on Law Enforcement and Administration of Justice report, The Challenge of Crime in a Free Society, there has been broad awareness that the criminal system lacks empirically informed approaches. That report unsuccessfully called for a national research strategy, with an independent national criminal justice research institute, along …
Fostering Legal Cynicism Through Immigration Detention, Emily Ryo
Fostering Legal Cynicism Through Immigration Detention, Emily Ryo
Faculty Scholarship
Every year, tens of thousands of noncitizens in removal proceedings are held and processed through an expanding web of immigration detention facilities across the United States. The use of immigration detention is expected to dramatically increase under the Trump administration’s mass deportation policy. I argue that this civil confinement system may serve a critical socio-legal function that has escaped the attention of policymakers, scholars, and the public alike. Using extensive original data on long-term immigrant detainees, I explore how immigration detention might function as a site of legal socialization that helps to promote or reinforce widespread legal cynicism among immigrant …
Project Safe Neighborhoods In Chicago: Looking Back A Decade Later, Ben Grunwald, Andrew V. Papachristos
Project Safe Neighborhoods In Chicago: Looking Back A Decade Later, Ben Grunwald, Andrew V. Papachristos
Faculty Scholarship
Project Safe Neighborhoods (PSN) is a federally funded initiative that brings together federal, state, and local law enforcement to reduce gun violence in urban centers. In Chicago, PSN implemented supply-side gun policing tactics, enhanced federal prosecution of gun crimes, and notification forums warning offenders of PSN’s heightened criminal sanctions. Prior evaluations provide evidence that PSN initiatives have reduced crime in the first few years of their operation. But over a decade after the program was established, we still know little about whether these effects are sustained over an extended period of time. This Article examines PSN Chicago, an anti-violence program …
The American Death Penalty Decline, Brandon L. Garrett, Alexander Jakubow, Ankur Desai
The American Death Penalty Decline, Brandon L. Garrett, Alexander Jakubow, Ankur Desai
Faculty Scholarship
American death sentences have both declined and become concentrated in a small group of counties. In his dissenting opinion in Glossip v. Gross in 2014, Justice Stephen Breyer highlighted how from 2004 to 2006, "just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide." That decline has become more dramatic. In 2015, fifty-one defendants were sentenced to death in thirty-eight counties. In 2016, thirty-one defendants were sentenced to death in twenty-eight counties. In the mid-1990s, by way of contrast, over 300 people were sentenced to death in as many …
Neuroscience And Behavioral Genetics In Us Criminal Law: An Empirical Analysis, Nita A. Farahany
Neuroscience And Behavioral Genetics In Us Criminal Law: An Empirical Analysis, Nita A. Farahany
Faculty Scholarship
The goal of this study was to examine the growing use of neurological and behavioral genetic evidence by criminal defendants in US criminal law. Judicial opinions issued between 2005–12 that discussed the use of neuroscience or behavioral genetics by criminal defendants were identified, coded and analysed. Yet, criminal defendants are increasingly introducing such evidence to challenge defendants’ competency, the effectiveness of defense counsel at trial, and to mitigate punishment.
Decision-Making In The Dark: How Pre-Trial Errors Change The Narrative In Criminal Jury Trials, Kara Mackillop, Neil Vidmar
Decision-Making In The Dark: How Pre-Trial Errors Change The Narrative In Criminal Jury Trials, Kara Mackillop, Neil Vidmar
Faculty Scholarship
Over the past decade and a half, a great deal of attention has rightfully been given to the issue of wrongful convictions. In 2003, Jim Dwyer, Peter Neufeld and Barry Scheck published Actual Innocence, an eyeopening treatise on the reality of wrongful convictions in the United States. In the years since, more than 1400 innocent persons have been exonerated, and a very diverse research community of attorneys, academics, social scientists, and activists has developed in response to the realization offlaws in our criminal justice system. In 2012, Brandon Garrett's Convicting the Innocent quantitatively evaluated the first 250 DNA exonerations and …
Decriminalizing Delinquency: The Effect Of Raising The Age Of Majority On Juvenile Recidivism, Charles E. Loeffler, Ben Grunwald
Decriminalizing Delinquency: The Effect Of Raising The Age Of Majority On Juvenile Recidivism, Charles E. Loeffler, Ben Grunwald
Faculty Scholarship
In the last decade, a number of states have expanded the jurisdiction of their juvenile courts by increasing the maximum age to 18. Proponents argue that these expansions reduce crime by increasing access to the beneficial features of the juvenile justice system. Critics counter that the expansions risk increasing crime by reducing deterrence. In 2010, Illinois raised the maximum age for juvenile court for offenders who commit a misdemeanor. By examining the effect of this law on juvenile offenders in Chicago, this paper provides the first empirical estimates of the consequences of recent legislative activity to raise the age of …
Culpability And Modern Crime, Samuel W. Buell
Culpability And Modern Crime, Samuel W. Buell
Faculty Scholarship
Criminal law has developed to prohibit new forms of intrusion on the autonomy and mental processes of others. Examples include modern understandings of fraud, extortion, and bribery, which pivot on the concepts of deception, coercion, and improper influence. Sometimes core offenses develop to include similar concepts, such as when reforms in the law of sexual assault make consent almost exclusively material. Many of these projects are laudable. But progressive programs in substantive criminal law can raise difficult problems of culpability. Modern iterations of criminal offenses often draw lines using concepts involving relative mental states among persons whose conduct is embedded …
Prosecutorial Discretion In Three Systems: Balancing Conflicting Goals And Providing Mechanisms For Control, Sara Sun Beale
Prosecutorial Discretion In Three Systems: Balancing Conflicting Goals And Providing Mechanisms For Control, Sara Sun Beale
Faculty Scholarship
In regulating the authority and discretion exercised by contemporary prosecutors,national systems balance a variety of goals, many of which are in tension or direct conflict. Forexample, making prosecutors politically or democratically accountable may conflict with theprinciple of prosecutorial neutrality, and the goal of efficiency may conflict with accuracy. National systems generally seek to foster equal treatment of defendants and respect for theirrights while also controlling or reducing crime and protecting the rights of victims. Systems thatrecognize prosecutorial discretion also seek to establish and implement policy decisions aboutthe best ways to address various social problems, priorities, and the allocation of resources. …
“White Collar” Crimes, Samuel W. Buell
“White Collar” Crimes, Samuel W. Buell
Faculty Scholarship
In addition to serving as a précis of the subject of ‘white collar’ crime, this chapter does three things. First, it deals with white collar crime’s longstanding definitional problem, rejecting several standard approaches and arguing that the category is most usefully understood according to the conceptual legal problem these offenses generate. White collar crimes, much more than other offenses, are committed in social settings in which undesirable behaviors are embedded within socially welcome conduct. Thus they are difficult to set apart and extract through clearly specified ex ante rules of law. Second, the chapter illustrates this definitional claim, and discusses …
The North Carolina Racial Justice Act: An Essay On Substantive And Procedural Fairness In Death Penalty Litigation, Neil Vidmar
The North Carolina Racial Justice Act: An Essay On Substantive And Procedural Fairness In Death Penalty Litigation, Neil Vidmar
Faculty Scholarship
No abstract provided.
Book Review, Samuel W. Buell
Retribution And The Experience Of Punishment, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur
Retribution And The Experience Of Punishment, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur
Faculty Scholarship
No abstract provided.