Law Commons^™

Toward Ethical Plea Bargaining, Erica J. Hashimoto

Scholarly Works

Defendants in criminal cases are overwhelmingly more likely to plead guilty than to go to trial. Presumably, at least a part of the reason that most of them do so is that it is in their interest to plead guilty, i.e., they will receive a more favorable outcome if they plead guilty than if they go to trial. The extent to which pleas reflect fair or rational compromises in practice, however, depends upon a variety of factors, including the amount of information each of the parties has about the case. Some level of informational symmetry therefore is critical to the …

Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough

University of Richmond Law Review

No abstract provided.

Eyewitness Identification Reform In Massachusetts, Stanley Z. Fisher

Faculty Scholarship

This article traces the impact of the new scientific learning upon police eyewitness identification procedures in the Commonwealth of Massachusetts. Over the past 25 years, experimental psychologists have devised more reliable techniques for gathering eyewitness identification evidence than have been traditionally used by police. Massachusetts has over 350 autonomous municipal police departments, plus approximately 39 college campus police departments, the state police, and the MBTA (transit) Police Department. The decision how to investigate crime rests principally with the police chief responsible for each department. How does such a system of policing absorb new, scientifically superior methods of investigation?

Unchaste And Incredible: The Use Of Gendered Conceptions Of Honor In Impeachment, Julia Simon-Kerr

Julia Simon-Kerr

The American rules for impeaching witnesses developed against a cultural background that equated a woman's "honor," and thus her credibility, with her sexual virtue. The idea that a woman's chastity informs her credibility did not originate in rape trials and the confusing interplay between questions of consent and sexual history. Rather, gendered notions of honor so permeated American legal culture that attorneys routinely attempted to impeach female witnesses by invoking their sexual histories in cases involving such diverse claims as title to land, assault, arson, and wrongful death. But while many courts initially accepted the notion that an unchaste woman …

The Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, Stephen A. Saltzburg, Daniel J. Capra

William & Mary Law Review

In Agard v. Portuondo, the United States Supreme Court held that a prosecutor did not violate a testifying defendant's constitutional rights by inviting the jury to infer from the defendant's presence at trial that the defendant altered his own version of events to accord with other witnesses' testimony. Justice Scalia's opinion for the Court emphasized that jurors might well draw the inference even without a prosecutor asking them to do so. Although Agard is viewed as giving an advantage in a criminal trial to the government, this Article considers how Agard might be used to allow defense counsel to introduce …

A Return To The Grand Jury To Promote A Zen Zeal In Prosecutors, Melanie D. Wilson

Scholarly Articles

DNA evidence has freed at least 209 convicted people. Sometimes DNA evidence exonerates a person. Other times, it does not. When it does not exonerate, a prosecutor must decide whether to persist in further prosecution of the defendant. I propose a fresh, but simple, solution for prosecutors who face such choices. To protect the interests of defendants and victims, and to assuage society’s need for fair and accurate outcomes, prosecutors should represent these cases to a grand jury. The grand jury is an easily convened neutral party that can dispassionately evaluate the evidence, old and new, and determine whether a …

Improving The Reliability Of Criminal Trials Through Legal Rules That Encourage Defendants To Testify, Jeffrey Bellin

Faculty Publications

Reflecting a traditional bias against defendants' trial testimony, the modern American criminal justice system, which now recognizes a constitutional right to testify at trial, unabashedly encourages defendants to waive that right and remain silent. As a result, a large percentage of criminal defendants decline to testify, forcing juries to decide the question of the defendant's guilt without ever hearing from the person most knowledgeable on the subject.

This Article contends that the inflated percentage of silent defendants in the American criminal trial system is a needless, self-inflected wound, neither required by the Constitution nor beneficial to the search for truth. …

Bosnia V. Serbia: Lessons From The Encounter Of The International Court Of Justice With The International Criminal Tribunal For The Former Yugoslavia, Rebecca Hamilton, Richard J. Goldstone

Articles in Law Reviews & Other Academic Journals

This article uses the recent judgment of the ICJ in Bosnia v. Serbia to highlight the potential problems that arise when international courts have to adjudicate on overlapping situations. It describes the dispute between the ICJ and the ICTY on the appropriate legal standard for the attribution of state responsibility, and finds that the ICJ’s approach in this case suggests that those keen to minimize the fragmentation of international law between adjudicative bodies should not overlook the need for consistency within those bodies.With regard to fact finding, this article raises serious concerns about the manner in which the ICJ relied …

More Views From The Ivory Tower: The Kiss Principle - Keep It Simple, Solicitor, David Spratt

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Case Comment - People V. Nelson: A Tale Of Two Statistics, David H. Kaye

Journal Articles

In recent years, defendants who were identified as a result of a search through a database of DNA profiles have argued that the probability that a randomly selected person would match a crime-scene stain overstates the probative value of the match. The statistical literature is divided, with most statisticians who have written on the subject rejecting this claim. In People v. Nelson, the Supreme Court of California held that when the random-match probability is so small as to make it exceedingly unlikely that any unrelated individual has the incriminating DNA profile, this statistic is admissible in a database-search case. …

Pretrial Discovery Of Expert Testimony, Paul C. Giannelli

Faculty Publications

No abstract provided.

Nontestimonial Identification Orders For Dna Testing, Paul C. Giannelli

Faculty Publications

No abstract provided.

The Constable Blunders But Isnt Punished Does Hudson V Michigans Abolition Of The Exclusionary Rule Extend Beyond Knockandannounce Violations, Mark A. Summers

Faculty Scholarship

No abstract provided.

Proving Causation: The Holism Of Warrant And The Atomism Of Daubert, Susan Haack

Articles

No abstract provided.

"Anything You Say May Be Used Against You": A Proposed Seminar On The Lawyer’S Duty To Warn Of Confidentiality’S Limits In Today's Post-Enron World, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

In light of recent developments, the confidence that one's communications with a lawyer will remain sacrosanct today may be badly misplaced. This raises important questions concerning the duty of lawyers: When, to what extent, and in what detail, does an attorney communicating with someone who may expect confidentiality, have a duty to explain in advance the circumstances under which the information gained may subsequently be revealed pursuant to these or other confidentiality loopholes? Will the interviewee “clam up” in the face of such Miranda-like warnings? If so, what does this do to the premise of Upjohn and the Model Rule …

The Confrontation Right Across The Systemic Divide, Richard D. Friedman

Book Chapters

In his notable work, Evidence Law Adrift, Mirjan Damaška identified three pillars of the common law system of determining facts in adjudication, and examined these through a comparative lens: the organisation of the trial court; the phenomenon of temporally compressed trials; and a high degree of control by parties and their counsel. In reviewing the book, I suggested that a strong concept of individual rights was another critical feature of the common law system, especially in its American variant and especially with respect to criminal defendants.

In this essay, I will explore how these four features play out in the …

The Individualization Fallacy In Forensic Science Evidence, Michael J. Saks, Jonathan J. Koehler

Vanderbilt Law Review

Forensic identification science involves two fundamental steps. The first step is to compare a questioned item of evidence to an exemplar from a known source and judge whether they appear so alike that they can be said to match. The second step is to assess the meaning of that reported match: What is the probability that the questioned and the known originated from the same source?

Different risks of error are present at each step. The risk of error in the first step is that a reported match between a questioned and a known sample might not really match. Even …

Teaching Evidence, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

This article was published as part of the 2006 teaching issue of the Saint Louis University Law Journal. The teaching series was created as a forum for scholars, judges, and students to discuss methods for the effective teaching and learning of particular law school courses. In this essay, Professor Rothstein describes his philosophy and methods for teaching evidence.

Evidence Codification And Transubstantive And Bifurcated Evidence Codes, John Capowski

John J. Capowski

No abstract provided.

From A Plane Crash To The Conviction Of An Innocent Person: A Call On Lawmakers To Establish That Forensic Evidence Is Inadmissible Unless Forensic Equipment Is Developed As A Safety-Critical System, Dr. Boaz Sangero, Dr. Mordechai Halpert

Prof. Boaz Sangero

According to existing law, a criminal conviction may be based on a single piece of scientific (forensic) evidence. Thus, for example, a DNA match could, on its own, lead to a conviction and a prolonged term of imprisonment, or even a death sentence. A testing error might result in the conviction of an innocent person. Therefore, the state has a duty to ensure that such evidence is as reliable as possible. This article protests an inconceivable situation: that the development of forensic equipment, which is designed to produce evidence that can be relied on in a criminal trial, is not …

Establishing Separate Criminal And Civil Evidence Codes, John J. Capowski

John J. Capowski