Law Commons^™

The Incongruence Principle Of Evidence, Hillel Bavli

Faculty Journal Articles and Book Chapters

Evidence law assumes that the meaning and value of information at trial is equal to the meaning and value of the same information in the real world. This premise underlies evidence policy, judicial applications of evidence law, and instructions to jurors for evaluating evidence. However, it is incorrect, and the law’s failure to recognize this hinders its aims of accuracy and equality.

In this article, I draw on fields outside of law - including Bayesian inference and cognitive psychology - to develop a model of evidence that describes how jurors combine new evidence with prior beliefs (or “priors”) to make …

Character Evidence As A Conduit For Implicit Bias, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

The Federal Rules of Evidence purport to prohibit character evidence, or evidence regarding a defendant’s past bad acts or propensities offered to suggest that the defendant acted in accordance with a certain character trait on the occasion in question. However, courts regularly admit character evidence through an expanding set of legislative and judicial exceptions that have all but swallowed the rule. In the usual narrative, character evidence is problematic because jurors place excessive weight on it or punish the defendant for past behavior. Lawmakers rely on this narrative when they create exceptions. However, this account arguably misses a highly troublesome …

The Criminal Justice System And Latinos In An Emerging Latino Area, Betina Cutaia Wilkinson

Latino Public Policy

The topic of my study is Latinos’ attitudes and experiences with the criminal justice system in an emerging Latino area. There is an extensive amount of research on African Americans’ experiences and views of the criminal justice system yet our knowledge of Latinos’ experiences with the criminal justice system is quite scant. Still, a few studies have provided some foundation for our understanding of this topic. We know that immigrant policing is associated with Latinos’ reduced trust in government agencies and its programs (Cruz Nichols et al. 2018a). Restrictive immigration policies negatively impact Latinos’ physical and mental health (Cruz Nichols …

Peer Review: Navigating Uncertainty In The United States Jury System, Anna Offit

Faculty Journal Articles and Book Chapters

This Article examines American prosecutors’ approaches to uncertainty during voir dire. At different points during trial preparation— and during jury selection itself—lawyers draw on multiple interpretive systems to make sense of ordinary citizens. Taking Assistant United States Attorneys in a federal jurisdiction in the Northeast United States as a case study, and drawing on ethnographic research, I focus on three systems prosecutors alternately (and sometimes simultaneously) use to evaluate jurors: (1) probabilistic and evaluative analogies, (2) juror-types generated from the details of criminal cases, and (3) local knowledge stemming from prosecutors’ relationships and experiences outside of the courtroom. I show …

Prosecutors And Bargaining In Weak Cases: A Comparative View, Jenia I. Turner

Faculty Journal Articles and Book Chapters

One of the most controversial uses of prosecutorial discretion in plea bargaining concerns cases involving weak evidence of guilt. When a prosecutor bargains about the charges or even the facts in a case with weak evidence, at least three problems may arise. First, if the charge bargain is generous, it may coerce an innocent defendant to plead guilty. Second, such a bargain may let a guilty defendant off too easily, thus disserving the public and victim’s interests. Third, if the parties bargain about the facts, the result may distort the truth of the case.

In this book chapter, I examine …

Punishing Family Status, Jennifer M. Collins, Ethan J. Leib

Faculty Journal Articles and Book Chapters

This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of family ties burdens, laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental responsibility laws, incest, bigamy, adultery, nonpayment of child support, and nonpayment of parental support. …

Criminal Justice And The Challenge Of Family Ties, Dan Markel, Jennifer M. Collins, Ethan J. Leib

Faculty Journal Articles and Book Chapters

This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a Spartan presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and …