Law Commons^™

Resurrecting Arbitrariness, Kathryn E. Miller

Articles

What allows judges to sentence a child to die in prison? For years, they did so without constitutional restriction. That all changed in 2012’s Miller v. Alabama, which banned mandatory sentences of life without parole for children convicted of homicide crimes. Miller held that this extreme sentence was constitutional only for the worst offenders—the “permanently incorrigible.” By embracing individualized sentencing, Miller and its progeny portended a sea change in the way juveniles would be sentenced for serious crimes. But if Miller opened the door to sentencing reform, the Court’s recent decision in Jones v. Mississippi appeared to slam it …

Feigned Consensus: Usurping The Law In Shaken Baby Syndrome/Abusive Head Trauma Prosecutions, Keith A. Findley, D. Michael Risinger, Patrick D. Barnes, Julie A. Mack, David A. Moran, Barry C. Scheck, Thomas L. Bohan

Articles

Few medico-legal matters have generated as much controversy--both in the medical literature and in the courtroom--as Shaken Baby Syndrome (SBS), now known more broadly as Abusive Head Trauma (AHT). The controversies are of enormous significance in the law because child abuse pediatricians claim, on the basis of a few non-specific medical findings supported by a weak and methodologically flawed research base, to be able to “diagnose” child abuse, and thereby to provide all of the evidence necessary to satisfy all of the legal elements for criminal prosecution (or removal of children from their parents). It is a matter, therefore, in …

Decriminalizing Childhood, Andrea L. Dennis

Scholarly Works

Even though the number of juveniles arrested, tried and detained has recently declined, there are still a large number of delinquency cases, children under supervision by state officials, and children living in state facilities for youth and adults. Additionally, any positive developments in juvenile justice have not been evenly experienced by all youth. Juveniles living in urban areas are more likely to have their cases formally processed in the juvenile justice system rather than informally resolved. Further, the reach of the justice system has a particularly disparate effect on minority youth who tend to live in heavily-policed urban areas.

The …

How Should Justice Policy Treat Young Offenders?: A Knowledge Brief Of The Macarthur Foundation Research Network On Law And Neuroscience, Bj Casey, Richard J. Bonnie, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer E. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Anthony Wagner

Faculty Scholarship

The justice system in the United States has long recognized that juvenile offenders are not the same as adults, and has tried to incorporate those differences into law and policy. But only in recent decades have behavioral scientists and neuroscientists, along with policymakers, looked rigorously at developmental differences, seeking answers to two overarching questions: Are young offenders, purely by virtue of their immaturity, different from older individuals who commit crimes? And, if they are, how should justice policy take this into account?

A growing body of research on adolescent development now confirms that teenagers are indeed inherently different from adults, …

The Child Quasi-Witness, Richard D. Friedman, Stephen J. Ceci

Articles

This Essay provides a solution to the conundrum of statements made by very young children and offered against an accused in a criminal prosecution. Currently prevailing doctrine allows one of three basic outcomes. First, in some cases the child testifies at trial. But this is not always feasible, and when it is, cross-examination is a poor method for determining the truth. Second, evidence of the child's statement may be excluded, which denies the adjudicative process of potentially valuable information. Third, the evidence may be admitted without the child testifying at trial, which leaves the accused with no practical ability to …

To Testify Or Not To Testify: The Dilemma Facing Children With Multiple Cases Before The Same Judge In Delinquency Court, Katherine I. Puzone

Faculty Scholarship

No abstract provided.

Shaken Baby Syndrome, Abusive Head Trauma, And Actual Innocence: Getting It Right, Keith A. Findley, Patrick D. Barnes, David A. Moran, Waney Squier

Articles

In the past decade, the existence of shaken baby syndrome (SBS) has been called into serious question by biomechanical studies, the medical and legal literature, and the media. As a result of these questions, SBS has been renamed abusive head trauma (AHT). This is, however, primarily a terminological shift: like SBS, AHT refers to the two-part hypothesis that one can reliably diagnose shaking or abuse from three internal findings (subdural hemorrhage, retinal hemorrhage, and encephalopathy) and that one can identify the perpetrator based on the onset of symptoms. Over the past decade, we have learned that this hypothesis fits poorly …

"Sweet Childish Days": Using Developmental Psychology Research In Evaluating The Admissibility Of Out-Of-Court Statements By Young Children, Lynn Mclain

All Faculty Scholarship

A three-year-old child, while being bathed by her babysitter, innocently mentions that her “pee-pee” hurts. When the babysitter asks the child how she hurt it, she says, “Uncle Ernie (her mother’s boyfriend) told me not to tell.” A subsequent medical examination reveals that the child has gonorrhea, a sexually transmitted disease.

By the time of trial, the child is four and-a-half-years old. When questioned by the trial judge, she cannot explain to the judge’s satisfaction, “the difference between the truth and a lie.” Moreover, she has no long term memory of the incident. The judge rules the child incompetent to …

Juvenile Life Without Parole: Unconstitutional In Michigan?, Kimberly A. Thomas

Articles

Last term, in Graham v Florida,1 the United States Supreme Court found unconstitutional the sentence of life without parole for a juvenile who committed a non-homicide offense. This attention to the sentencing of juvenile offenders is a continuation of the Court's decision in Roper v Simmons,2 in which the Court held that juvenile offenders could not constitutionally receive the death penalty. This scrutiny should be a signal to Michigan to examine its own jurisprudence on juveniles receiving sentences of life without parole. Michigan has the second-highest number of persons serving sentences of life without parole for offenses committed when they …

The Trial Court's Gatekeeper Role Under Frye, Daubert, And Kumho: A Special Look At Children's Cases, John Eric Smithburn

Journal Articles

The typical requisites for receiving testimony from an expert witness are that the expert be qualified in a particular subject or area of expertise, that the expert testify in opinion form or otherwise, which will help the fact finder, and that there be a proper basis for the expert's testimony. This article examines the changing meaning in the law of evidence of the expert's subject area in cases involving children. During most of the last century, where the expert witness proposed to testify concerning a new or novel scientific system, process or technique, the court applied the rule of Frye …

The Conundrum Of Children, Confrontation, And Hearsay, Richard D. Friedman

Articles

The adjudication of child abuse claims poses an excruciatingly difficult conundrum. The crime is a terrible one, but false convictions are abhorrent. Often the evidence does not support a finding of guilt or innocence with sufficient clarity to allow a decision free of gnawing doubt. In many cases, a large part of the problem is that the prosecution's case depends critically on the statement or testimony of a young child. Even with respect to adult witnesses, the law of hearsay and confrontation is very perplexing, as anyone who has studied American evidentiary law and read Supreme Court opinions on the …

Child Witnesses And Procedural Fairness, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Professor Gershman's Article notes that courts and lawmakers have changed procedural and evidentiary rules to protect child witnesses in child sexual abuse cases. Gershman discusses how courts apply the changed rules with careful scrutiny in an effort to ensure that the interests of the child witness and the accused defendant are appropriately balanced.

A Suggestion On Suggestion, Richard D. Friedman, Stephen J. Ceci

Articles

Part I of the full article briefly describes the history and current slate of research into children's suggestibility. In this part, we argue that, although psychological researchers disagree considerably over the degree to which he suggestibility of young children may lead to false allegations of sexual abuse, there is an overwhelming consensus that children are suggestible to a degree that, we believe, must be regarded as significant. In presenting this argument, we respond to the contentions of revisionist scholars, particularly those recently expressed by Professor Lyon. We show that there is good reason to believe the use of highly suggestive …

The Suggestibility Of Children: Scientific Research And Legal Implications, Stephen J. Ceci, Richard D. Friedman

Articles

In this Article, Professors Ceci and Friedman analyze psychological studies on children's suggestibility and find a broad consensus that young children are suggestible to a significant degree. Studies confirm that interviewers commonly use suggestive interviewing techniques that exacerbate this suggestibility, creating a significant risk in some forensic contexts-notably but not exclusively those of suspected child abuse-that children will make false assertions of fact. Professors Ceci and Friedman address the implications of this difficulty for the legal system and respond to Professor Lyon's criticism of this view recently articulated in the Cornell Law Review. Using Bayesian probability theory, Professors Ceci and …

Child Sexual Abuse Prosecutions: Admitting Out-Of-Court Statements Of Child Victims And Witnesses In Louisana, Charles W. Ehrhardt, Ryon M. Mccabe

Scholarly Publications

No abstract provided.

Prior Statements Of A Witness: A Nettlesome Corner Of The Hearsay Thicket, Richard D. Friedman

Articles

In Tome v United States, for the fifth time in eight years, the Supreme Court decided a case presenting the problem of how a child's allegations of sexual abuse should be presented in court. Often the child who charges that an adult abused her is unable to testify at trial, or at least unable to testify effectively under standard procedures. These cases therefore raise intriguing and difficult questions related to the rule against hearsay and to an accused's right under the Sixth Amendment to confront the witnesses against him. One would hardly guess that, however, from the rather arid debate …