Law Commons^™

Two Models Of Pre-Plea Discovery In Criminal Cases: An Empirical Comparison, Jenia I. Turner, Allison D. Redlich George Mason University

Washington and Lee Law Review

Our criminal justice system resolves most of its cases through plea bargains. Yet the U.S. Supreme Court has not required that any evidence, even exculpatory or impeachment evidence, be provided to the defense before a guilty plea. As a result, state rules on pre-plea discovery differ widely. While some jurisdictions follow an “open-file” model, imposing relatively broad discovery obligations on prosecutors early in the criminal process, others follow a more restrictive, “closed-file” model and allow the prosecution to avoid production of critical evidence either entirely or until very near the time of trial. Though the advantages and disadvantages of both …

Who Shouldn't Prosecute The Police, Kate Levine

Faculty Publications

The job of investigating and prosecuting police officers who commit crimes falls on local prosecutors, as it has in the wake of a number of highly public killings of unarmed African-Americans since Michael Brown died in August 2014. Although prosecutors officially represent “the people,” there is no group more closely linked to prosecutors than the officers they work with daily. This Article focuses on the undertheorized but critically important role that conflict-of-interest law plays in supporting the now-popular conclusion that local prosecutors should not handle cases against police suspects. Surprisingly, scholars have paid little attention to the policies and practices …

Police Suspects, Kate Levine

Faculty Publications

Recent attention to police brutality has brought to the fore how police, when they become the subject of criminal investigations, are given special procedural protections not available to any other criminal suspect. Prosecutors’ special treatment of police suspects, particularly their perceived use of grand juries to exculpate accused officers, has received the lion’s share of scholarly and media attention. But police suspects also benefit from formal affirmative rights that protect them from interrogation by other officers. Police, in most jurisdictions, have a special shield against interrogation known as the Law Enforcement Officers’ Bill of Rights (LEOBORs). These statutes and negotiated …

Assuming The Worst: Eliminating The Forcibly Steals Element From Second-Degree Robbery, Ross Valore

Missouri Law Review

This Note begins with an exploration of the factual circumstances that gave rise to the court’s determination that an objective standard should be applied when determining whether a threat of the immediate use of physical force exists in second-degree robbery cases. This Note then discusses the conflict among Missouri appellate courts regarding the determination of whether a threat of force exists, while also looking at how other states have handled this issue. Next, this Note provides an analysis of the Supreme Court of Missouri’s reasoning in Brooks and, finally, explores how the objective standard articulated by the court will be …

Judicial Disqualification And Recusal In Criminal Cases, Edward L. Wilkinson

St. Mary's Journal on Legal Malpractice & Ethics

The United States Supreme Court has recognized circumstances in which the probability of judicial bias requiring disqualification or recusal is “too high to be constitutionally tolerable.” At the same time, the Texas Constitution contains a number of provisions barring a judge from presiding over a case under specific circumstances, while statutes and procedural rules either disqualify a judge or require him or her to be recused. Thus, whether a particular judge may preside over a given criminal case may be questioned under the Due Process Clause, the Texas Constitution, statue, or the rules of procedure. This Article will examine the …

Zero-Tolerance Comes To International Law, Aya Gruber

Publications

No abstract provided.

The Lgbt Piece Of The Underenforcement-Overenforcement Puzzle, Aya Gruber

Publications

No abstract provided.

Guns And Drugs, Benjamin Levin

Publications

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, this Article uses as its test case the criminal regulation of gun possession. This Article identifies and distills three lines of drug war criticism and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, this Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social and economic costs of mass …

Teaching Criminal Procedure: Why Socrates Would Use Youtube, Stephen E. Henderson, Joseph Thai

Faculty Articles

In this invited contribution to the Law Journal's annual Teaching Issue, we pay some homage to the great philosopher whose spirit allegedly guides our classrooms, in service of two concrete goals. One, we employ dialogue to describe the “nuts and bolts” of teaching Criminal Procedure, most of which are equally relevant to any doctrinal law school course (including course description, office hours, seating charts and attendance, class decorum and recording, student participation, laptops, textbooks, class preparation and presentation, and exams). Two, we explain the benefits of using multimedia in the classroom, including a few of the many modules found on …

Criminal Laws On Sex Work And Hiv Transmission: Mapping The Laws, Considering The Consequence, Sienna Baskin, Aziza Ahmed, Anna Forbes

Faculty Scholarship

Lawmakers historically justify the mobilization of criminal laws on prostitution and HIV as a means of controlling the spread of disease. Over time, however, public health research has conclusively demonstrated that criminal laws on prostitution and HIV significantly impede the ability of sex workers to access services and to live without the stigma and blame associated with being a transmitter of HIV. In turn, mainstream public health approaches to sex work and HIV emphasize decriminalization as a way to improve the lives of sex workers in need of care, treatment, and services. Our current legal system, which criminalizes both prostitution …

2015 Symposium: Wrongful Convictions: Science, Experience & The Law Keynote Panel Discussion, Mary Kelly Tate

Law Faculty Publications

The following is a minimally-edited transcript of the panel speakers from the 2015 Richmond Journal of Law and the Public Interest Symposium, Wrongful Convictions: Science, Experience and the Law held on October 29, 2015. Biographies of the speakers are included in the Introductory Remarks. None of the opinions of these persons are necessarily the opinion of their respective agencies or employers. They are not to be used nor will they be able to be used for any legally binding purpose regarding the speaker or any agency.

Moderator: Professor Mary Kelly Tate, Director, Richmond Institute for Actual Innocence

Panelists: Shawn Armbrust …

Police Reform And The Judicial Mandate, Julian A. Cook

Scholarly Works

In response to a crisis that threatens his tenure as Mayor of Chicago, Rahm Emanuel announced in December 2015 reform measures designed to curb aggressive police tactics by the Chicago Police Department (CPD). The reform measures are limited, but aim to reduce deadly police-citizen encounters by arming the police with more tasers, and by requiring that officers undergo deescalation training. Though allegations of excessive force have plagued the department for years, the death of Laquan McDonald, an African-American teenager who was fatally shot by Jason Van Dyke, a white officer with the CPD, was the impetus for the Mayor’s reforms. …

The Invisible Revolution In Plea Bargaining: Managerial Judging And Judicial Participation In Negotiations, Nancy J. King, Ronald F. Wright

Vanderbilt Law School Faculty Publications

This article, the most comprehensive study of judicial participation in plea negotiations since the 1970s, reveals a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly 100 judges and attorneys in ten states, we found that what once were informal, disfavored interactions have quietly, without notice, transformed into highly structured, best practices for docket management. We learned of grant-funded, problem-solving sessions complete with risk assessments and real-time information on treatment options; multi-case conferences where other lawyers chime in; settlement courts located at the jail; settlement dockets with retired judges; full-blown felony mediation …

Values And Assumptions In Criminal Adjudication, Benjamin Levin

Publications

This Response to Andrew Manuel Crespo's Systemic Facts: Toward Institutional Awareness in Criminal Courts proceeds in two Parts. In Part I, I argue that Crespo presents a compelling case for the importance of systemic factfinding to the task of criminal court judges. If, as a range of scholars has argued, criminal courts are increasingly serving a quasi-administrative function, then shouldn’t they at least be administrating accurately? Systemic Facts provides a novel account of how — with comparatively little institutional reform — courts might begin to serve as more effective administrators. However, in Part II, I also argue that Crespo’s account …

Criminal Labor Law, Benjamin Levin

Publications

This Article examines a recent rise in civil suits brought against unions under criminal statutes. By looking at the long history of criminal regulation of labor, the Article argues that these suits represent an attack on the theoretical underpinnings of post-New Deal U.S. labor law and an attempt to revive a nineteenth century conception of unions as extortionate criminal conspiracies. The Article further argues that this criminal turn is reflective of a broader contemporary preference for finding criminal solutions to social and economic problems. In a moment of political gridlock, parties seeking regulation increasingly do so via criminal statute. In …

'White Collar Crime': Still Hazy After All These Years, Lucian E. Dervan, Ellen S. Podgor

Law Faculty Scholarship

With a seventy-five year history of sociological and later legal roots, the term “white collar crime” remains an ambiguous concept that academics, policy makers, law enforcement personnel and defense counsel are unable to adequately define. Yet the use of the term “white collar crime” skews statistical reporting and sentencing for this conduct. This Article provides a historical overview of its linear progression and then a methodology for a new architecture in examining this conduct. It separates statutes into clear-cut white collar offenses and hybrid statutory offenses, and then applies this approach with an empirical study that dissects cases prosecuted under …

Making Juvenile Justice More Humane And Effective, Julie Ellen Mcconnell

Law Faculty Publications

Long commutes, high costs and too much time away from family are among the most common frustration for workers in Virginia. But while those annoyances may be tolerable when it comes to our daily commutes, they have become an unfortunate feature of Virginia’s youth justice system, which confines hundreds of youth in large institutions far from their homes.

When young people have regular visits with their family and other members of the community, they have a much higher chance of being rehabilitated and successfully returning to those communities. Currently, many incarcerated youth in Virginia are held far from their families, …

Evidence Of The Military's Sexual Assault Blind Spot, Eric R. Carpenter

Faculty Publications

In response to the American military's perceived inability to handle sexual assault cases, many members of Congress have lost confidence in those who run the military justice system. Critics say that those who run the military justice system are sexist and perceive sexual assault cases differently than the public does. This article is the first to empirically test that assertion. Further, this is the first study to focus on the military population that matters – those who actually run the military justice system. This study finds that this narrow military population endorses two constructs that are associated with the acceptance …

The Sexual Assault Of Older Women: Criminal Justice Responses In Canada, Isabel Grant, Janine Benedet

All Faculty Publications

This article examines sexual violence against older women, a problem that has been largely hidden from view in the societal and legal discussion of sexual assault. The article identifies a significant disconnect between the social science description of sexual assault against older women, on the one hand, and the available case law, on the other. The social science literature suggests that older women are most likely to be sexually assaulted by somebody they know and that a disproportionate number of the sexual assaults against older women take place within care facilities. The case law, however, paints a very different picture …

Divided We Fall: How The International Criminal Court Can Promote Compliance With International Law By Working With Regional Courts, Tatiana E. Sainati

Vanderbilt Journal of Transnational Law

Kenya's 2007 presidential elections inflamed deep-seeded ethnic tensions in the country, sparking violence that left thousands dead and more than half-a-million civilians displaced. After the bloodshed, Kenya failed to investigate, prosecute, and punish those responsible for the atrocities. The Prosecutor for the International Criminal Court (ICC) launched an investigation into the Kenyan situation, acting under his statutory authority, and eventually brought charges against six high-ranking Kenyans, including President Kenyatta. After years of investigations, the Prosecutor ultimately withdrew the case against the Kenyan President--a potentially fatal failure heralded by some as the death knell of the ICC.

During the course of …

Recentering Tribal Criminal Jurisdiction, Addie C. Rolnick

Scholarly Works

The boundaries of modern tribal criminal jurisdiction are defined by a handful of clear rules—such as a limit on sentence length and a categorical prohibition against prosecuting most non-Indians—and many grey areas in which neither Congress nor the Supreme Court has specifically addressed a particular question. This Article discusses five of the grey areas: whether tribes retain concurrent jurisdiction to prosecute major crimes, whether tribes affected by Public Law 280 retain concurrent jurisdiction to prosecute a full range of crimes, whether tribes may prosecute Indians who are not citizens of any tribe, whether tribes may prosecute their own citizens for …

Unraveling The Law Of War, Stephen J. Ellmann

Articles & Chapters

No abstract provided.

Adjudicating Risk: Aids, Crime, And Culpability, Aziza Ahmed

Faculty Scholarship

The AIDS epidemic continues to pose significant public health challenges, especially given that the spread of the virus outpaces the AIDS response.¹ Importantly, HIV continues to disproportionately impact socially and economically marginalized communities. In countries with concentrated epidemics,² it is racial minorities, sex workers, men who have sex with men, and drug users who face the brunt of the epidemic.³ In the United States, the data is startling⁴ : 44% of new infections were among African-Americans, and among African-Americans contracting HIV, 57% were among gay and bisexual men.⁵ In 2016, the CDC found that one …

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 …

Reply To Miriam Baer And Michael Doucette’S Reviews Of Two Models Of Pre-Plea Discovery In Criminal Cases, Jenia I. Turner, Allison D. Redlich

Faculty Journal Articles and Book Chapters

No abstract provided.

Young Adulthood As A Transitional Legal Category: Science, Social Change, And Justice Policy, Elizabeth S. Scott, Richard J. Bonnie, Laurence Steinberg

Faculty Scholarship

In the past decade, much attention has focused on developmental brain research and its implications for the regulation of crime. Public and policy interest has been directed primarily toward juveniles. In light of recent research, courts and legislatures increasingly have rejected the punitive response of the 1990s and embraced a developmental approach to young offenders. Of particular importance in propelling this trend has been the framework offered by the U.S. Supreme Court in a series of Eighth Amendment opinions that have rejected harsh adult sentences for juveniles. These decisions, supported by adolescent brain research, rested on two empirically based principles: …

Stops And Stares: Street Stops, Surveillance, And Race In The New Policing, Jeffrey Fagan, Anthony A. Braga, Rod K. Brunson, April Pattavina

Faculty Scholarship

The use of proactive tactics to disrupt criminal activities, such as Terry street stops and concentrated misdemeanor arrests, are essential to the "new policing." This model applies complex metrics, strong management, and aggressive enforcement and surveillance to focus policing on high crime risk persons and places. The tactics endemic to the "newpolicing"gave rise in the 1990s to popular, legal, political, and social science concerns about disparate treatment of minority groups in their everyday encounters with law enforcement. Empirical evidence showed that minorities were indeed stopped and arrested more frequently than similarly situated Whites, even when controlling for local social and …

Schools Fail To Get It Right On Rap Music, Andrea L. Dennis

Popular Media

School officials treat rap music as a serious threat to the school environment. Fear and misunderstanding of, as well as bias against, this highly popular and lucrative musical art form negatively shape their perspectives on this vital aspect of youth culture.

As a result, students who express themselves through rap music in a way that challenges the schoolhouse setting risk the possibility of suspension, permanent exclusion and referral to the criminal justice system.

The ongoing case of Taylor Bell is the latest and most complex battleground on which this issue is playing out.

Lets Talk About Sexual Assault A Feminist Exploration Of The Relationship Between Legal And Experiential Discourses, Dana Erin Phillips

LLM Theses

This thesis challenges the tendency within feminist legal thought to imagine a sharp division between law and lived experience, and specifically between feminist methods that engage legal discourse and those that invoke grassroots narratives grounded in experience. In order to better elucidate the relationship between legal and experiential discourses, the author compares recent legal discourse on sexual assault focusing on two Supreme Court of Canada decisions with women's own accounts of sexual violence, as presented in mainstream news media in the wake of the 2014 Jian Ghomeshi story. The findings, examined through the lens of feminist scholarship, support a view …

From The Editors: Ferguson And Its Impact On Legal Education Symposium, Marc Spindelman, Thomas D. Cobb, Kellye Testy, Kate O'Neill

Journal of Legal Education

No abstract provided.