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Full-Text Articles in Law
Race And Wrongful Convictions In The United States, Samuel R. Gross, Maurice Possley, Klara Stephens
Race And Wrongful Convictions In The United States, Samuel R. Gross, Maurice Possley, Klara Stephens
Other Publications
African Americans are only 13% of the American population but a majority of innocent defendants wrongfully convicted of crimes and later exonerated. They constitute 47% of the 1,900 exonerations listed in the National Registry of Exonerations (as of October 2016), and the great majority of more than 1,800 additional innocent defendants who were framed and convicted of crimes in 15 large-scale police scandals and later cleared in “group exonerations.” We see this racial disparity for all major crime categories, but we examine it in this report in the context of the three types of crime that produce the largest numbers …
Gideon V. Wainwright A Half Century Later, Yale Kamisar
Gideon V. Wainwright A Half Century Later, Yale Kamisar
Reviews
When he was nearing the end of his distinguished career, one of my former law professors observed that a dramatic story of a specific case "has the same advantages that a play or a novel has over a general discussion of ethics or political theory." Ms. Houppert illustrates this point in her very first chapter.
The Pastor, The Burning House, And The Double Jeopardy Clause: The True Story Behind Evans V. Michigan, David A. Moran
The Pastor, The Burning House, And The Double Jeopardy Clause: The True Story Behind Evans V. Michigan, David A. Moran
Articles
The true story behind Evans v. Michigan is that a man who was probably innocent, and who would almost certainly have been acquitted by the jury, had his trial shortened after it became obvious to the judge that the police had picked up a man who had nothing to do with the fire. In other words, the facts set forth by the Michigan Supreme Court, and repeated by Alito, were grossly misleading. And because I, like Alito, believed the Michigan Supreme Court’s version of the facts, I made a silly mistake when I agreed to take the case. That silly …
Our Broken Misdemeanor Justice System: Its Problems And Some Potential Solutions, Eve Brensike Primus
Our Broken Misdemeanor Justice System: Its Problems And Some Potential Solutions, Eve Brensike Primus
Reviews
Although misdemeanors comprise an overwhelming majority of state criminal court cases, little judicial and scholarly attention has been focused on how misdemeanor courts actually operate. In her article, Misdemeanors, Alexandra Natapoff rights this wrong and explains how the low-visibility, highly discretionary decisions made by actors at the misdemeanor level often result in rampant discrimination, incredible inefficiency, and vast miscarriages of justice. Misdemeanors makes a significant contribution to the literature by refocusing attention on the importance of misdemeanor offenses and beginning an important dialogue about what steps should be taken going forward to fix our broken misdemeanor justice system.
Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman
Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman
Articles
Crawford v. Washington radically transformed the doctrine governing the Confrontation Clause of the Sixth Amendment to the Constitution. Before Crawford, a prosecutor could introduce against an accused evidence of a hearsay statement, even one made in contemplation that it would be used in prosecution, so long as the statement fit within a "firmly rooted" hearsay exception or the court otherwise determined that the statement was sufficiently reliable to warrant admissibility. Crawford recognized that the Clause is a procedural guarantee, governing the manner in which prosecution witnesses give their testimony. Therefore, a prosecutor may not introduce a statement that is testimonial …
Pretrial Incentives, Post-Conviction Review, And Sorting Criminal Prosecutions By Guilt Or Innocence, Samuel R. Gross
Pretrial Incentives, Post-Conviction Review, And Sorting Criminal Prosecutions By Guilt Or Innocence, Samuel R. Gross
Articles
The fundamental problem with false convictions is that they are unobserved, and in general, unobservable. We don't spot them when they happen-if we did, they wouldn't happen-and in most cases we can't identify them after the fact. We have no general reliable test for innocence or guilt; if we did, we'd use it at trial. As result, we often say that we don't know for sure whether a convicted criminal defendant is innocent or guilty, or even that we can't know for sure. But this isn't exactly true-or rather, its truth depends on who we mean by "we."
Hanging On By A Thread: The Exclusionary Rule (Or What's Left Of It) Lives For Another Day, David A. Moran
Hanging On By A Thread: The Exclusionary Rule (Or What's Left Of It) Lives For Another Day, David A. Moran
Articles
Back when there was a Soviet Union, foreign intelligence officers would anxiously await the May Day parade in Moscow to see who would be standing next to the chairman of the Communist Party and who would be missing from the reviewing platform altogether. Since the Soviet government and the statecontrolled press published very little about what was really going on in the halls of state power, this was considered the most reliable way to determine who was in or out of favor and, by extension, how the domestic and foreign policies of the world's second most powerful country were likely …
Disentangling Administrative Searches, Eve Brensike Primus
Disentangling Administrative Searches, Eve Brensike Primus
Articles
Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and …
Waiting For The Other Shoe: Hudson And The Precarious State Of Mapp, David A. Moran
Waiting For The Other Shoe: Hudson And The Precarious State Of Mapp, David A. Moran
Articles
I have no idea whether my death will be noted in the New York Times. But if it is, I fear the headline of my obituary will look something like: "Professor Dies; Lost Hudson v. Michigan' in Supreme Court, Leading to Abolition of Exclusionary Rule." The very existence of this Symposium panel shows, I think, that my fear is well-grounded. On the other hand, I am not quite as fearful that Hudson foreshadows the complete overruling of Mapp v. Ohio2 and Weeks v. United States3 as I was when I published an article just three months after the Hudson decision …
In Defense Of The Search And Seizure Exclusionary Rule (Law And Truth - The Twenty-First Annual National Student Federalist Society Symposium On Law And Public Policy - 2002), Yale Kamisar
Articles
think Dean Pye's advice about casebook writing was sound,6 and what he had to say also applies to discussions and debates about such issues as the search and seizure exclusionary rule. We cannot (at least we should not) begin with Mapp v. Ohio. We need a prelude.
Crawford V. Washington, Richard D. Friedman
Crawford V. Washington, Richard D. Friedman
Articles
On June 9, by granting certiorari in Crawford v. Washington, 02-9410, the Supreme Court signaled its intention to enter once again into the realm of the Confrontation Clause, in which it has found itself deeply perplexed. This time there was a difference, however, because the grant indicated that the Court might be willing to rethink its jurisprudence in this area. Crawford, like Lee v. Illinois, 476 U.S. 530 (1986), and Lilly v. Virginia, 527 U.S. 116 (1999), presents a classic case of what might be called station-house testimony. Michael Crawford was accused of stabbing another man. His wife, Sylvia, was …
Dial-In Testimony, Richard D. Friedman, Bridget Mary Mccormack
Dial-In Testimony, Richard D. Friedman, Bridget Mary Mccormack
Articles
For several hundred years, one of the great glories of the common law system of criminal justice has been the requirement that prosecution witnesses give their testimony in the presence of the accused" face to face," in the time-honored phrase-under oath, subject to cross-examination, and, unless unfeasible, in open court. In the United States, this principle is enshrined in the Confrontation Clause of the Sixth Amendment, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." But now a new way is developing for witnesses for the prosecution …
From Miranda To §3501 To Dickerson To...(Symposium: Miranda After Dickerson: The Future Of Confession Law), Yale Kamisar
From Miranda To §3501 To Dickerson To...(Symposium: Miranda After Dickerson: The Future Of Confession Law), Yale Kamisar
Articles
Once the Court granted [certiorari in Dickerson] court-watchers knew the hour had come. At long last the Court would have to either repudiate Miranda, repudiate the prophylactic-rule cases [the cases viewing Miranda's requirements as not rights protected by the Constitution, but merely "prophylactic rules"] or offer some ingenious reconciliation of the two lines of precedent. The Supreme Court of the United States, however, doesn't "have to" do anything, as the decision in Dickerson once again reminds us.
Lost Lives: Miscarriages Of Justice In Capital Cases, Samuel R. Gross
Lost Lives: Miscarriages Of Justice In Capital Cases, Samuel R. Gross
Articles
In case after case, erroneous conviction for capital murder has been proven. I contend that these are not disconnected accidents, but systematic consequences of the nature of homicice prosecution in the general and capital prosecution in particular - that in this respect, as in others, death distorts and undermines the course of the law.
Excessive Criminal Justice Caseloads: Challenging The Conventional Wisdom, Jerold H. Israel
Excessive Criminal Justice Caseloads: Challenging The Conventional Wisdom, Jerold H. Israel
Articles
Since the mid-1960s, no element of the criminal justice environment has received more attention and been accorded greater importance, in both popular and professional commentary, than has the pressure of heavy caseloads. The lack of sufficient resources to deal with overbearing caseloads has been widely characterized as the most pervasive and most critical administrative challenge faced by police, prosecutors, public defenders, and courts.' National commissions have regularly complained that the criminal justice system is "overcrowded, overworked, [and] undermanned," and must be given "substantially more money" to cure those ills if it is ever to perform all of the tasks assigned …
Duckworth V. Eagan: A Little-Noticed Miranda Case That May Cause Much Mischief, Yale Kamisar
Duckworth V. Eagan: A Little-Noticed Miranda Case That May Cause Much Mischief, Yale Kamisar
Articles
Professor Yale Kamisar, the country's foremost scholar of Miranda and police interrogation, presents an analysis and critique of the Supreme Court's latest interpretation of Miranda. In Duckworth, a 5-4 Court upheld the "if and when" language systematically used by the Hammond, Indiana, Police Department: "We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court." The real issue was whether the police effectively conveyed the substance of a vital part of Miranda: the right to have a lawyer appointed prior to any questioning. Professor Kamisar …
Gates, 'Probable Cause', 'Good Faith', And Beyond, Yale Kamisar
Gates, 'Probable Cause', 'Good Faith', And Beyond, Yale Kamisar
Articles
Illinois v. Gates1 was the most eagerly awaited constitutional-criminal procedure case of the 1982 Term. I think it fair to say, however, that it was awaited a good deal more eagerly by law enforcement officials and the Americans for Effective Law Enforcement than by defense lawyers and the American Civil Liberties Union. As it turned out, of course, the Gates Court, to the disappointment of many, did not reach the question whether the exclusionary rule in search and seizure cases should be modified so as not to require the exclusion of evidence obtained in violation of the fourth amendment when …
On Recognizing Variations In State Criminal Procedure, Jerold H. Israel
On Recognizing Variations In State Criminal Procedure, Jerold H. Israel
Articles
Everyone recognizes that the laws governing criminal procedure vary somewhat from state to state. There is often a tendency, however, to underestimate the degree of diversity that exists. Even some of the most experienced practitioners believe that aside from variations on some minor matters, such as the number of peremptory challenges granted, and variation on a few major items, such as the use of the grand jury, the basic legal standards governing most procedures are approximately the same in a large majority of states. I have seen varied evidence of this misconception in practitioner discussions of law reform proposals, particularly …
A Defense Of The Exclusionary Rule, Yale Kamisar
A Defense Of The Exclusionary Rule, Yale Kamisar
Articles
The exclusionary rule is being flayed with increasing vigor by a number of unrelated sources and with a variety of arguments. Some critics find it unworkable and resort to empirically based arguments. Others see it as the product of a belated and unwarranted judicial interpretation. Still others, uncertain whether the rule works, are confident that in some fashion law enforcement's hands are tied. Professor Yale Kamisar, long a defender of the exclusionary rule, reviews the current attacks on the rule and offers a vigorous rebuttal. He finds it difficult to accept that there is a line for acceptable police conduct …
Brewer V. Williams, Massiah And Miranda: What Is 'Interrogation'? When Does It Matter?, Yale Kamisar
Brewer V. Williams, Massiah And Miranda: What Is 'Interrogation'? When Does It Matter?, Yale Kamisar
Articles
On Christmas Eve, 1968, a ten-year-old girl, Pamela Powers, disappeared while with her family in Des Moines, Iowa.2 Defendant Williams, an escapee from a mental institution and a deeply religious person, 3 was suspected of murdering her, and a warrant was issued for his arrest.4 Williams telephoned a Des Moines lawyer, McKnight, and on his advice surrendered himself to the Davenport, Iowa, police.5 Captain Learning and another Des Moines police officer arranged to drive the 160 miles to Davenport, pick up Williams, and return him directly to Des Moines. 6 Both the trial court 7 and the federal district court8 …