Courts Commons^™

The Disappointing History Of Science In The Courtroom: Frye, Daubert, And The Ongoing Crisis Of “Junk Science” In Criminal Trials, Jim Hilbert

Oklahoma Law Review

No abstract provided.

The Sanctuary Of Prosecutorial Nullification, Zohra Ahmed

Faculty Scholarship

In the aftermath of the 2016 election, the shortcomings of existing sanctuary protections came sharply into focus.¹ Historically, cities enacted sanctuary protections to extricate their law enforcement agencies from activities related to federal immigration enforcement. In sanctuary cities, local government agencies are typically restricted from sharing information with federal immigration authorities or from cooperating in apprehending individuals targeted for removal. ² After the White House issued an Executive Order (EO) in late January 2017, many immigrant rights advocates recognized that external facing policies that proscribed direct cooperation would not suffice. ³ The EO announced that Immigration and Customs Enforcement …

Targeting Poverty In The Courts: Improving The Measurement Of Ability To Pay Fines, Meghan M. O'Neil, J.J. Prescott

Articles

Ability-to-pay determinations are essential when governments use money-based alternative sanctions, like fines, to enforce laws. One longstanding difficulty in the U.S. has been the extreme lack of guidance on how courts are to determine a litigant’s ability to pay. The result has been a seat-of-the-pants approach that is inefficient and inaccurate, and, as a consequence, very socially costly. Fortunately, online platform technology presents a promising avenue for reform. In particular, platform technology offers the potential to increase litigant access, reduce costs, and ensure consistent and fair treatment—all of which should lead to more accurate sanctions. We use interviews, surveys, and …

Judicializing History: Mass Crimes Trials And The Historian As Expert Witness In West Germany, Cambodia, And Bangladesh, Rebecca Gidley, Mathew Turner

Genocide Studies and Prevention: An International Journal

Henry Rousso warned that the engagement of historians as expert witnesses in trials, particularly highly politicized proceedings of mass crimes, risks a judicialization of history. This article tests Rousso’s argument through analysis of three quite different case studies: the Frankfurt Auschwitz trial; the Extraordinary Chambers in the Courts of Cambodia; and the International Crimes Tribunal in Bangladesh. It argues that Rousso’s objections misrepresent the Frankfurt Auschwitz trial, while failing to account for the engagement of historical expertise in mass atrocity trials beyond Europe. Paradoxically, Rousso’s criticisms are less suited to the European context that represents his purview, and apply more …

Ethical Cannabis Lawyering In California, Francis J. Mootz Iii

St. Mary's Journal on Legal Malpractice & Ethics

Cannabis has a long history in the United States. Originally, doctors and pharmacists used cannabis for a variety of purposes. After the Mexican Revolution led to widespread migration from Mexico to the United States, many Americans responded by associating this influx of foreigners with the use of cannabis, and thereby racializing and stigmatizing the drug. After the collapse of prohibition, the federal government repurposed its enormous enforcement bureaucracy to address the perceived problem of cannabis, despite the opposition of the American Medical Association to this new prohibition. Ultimately, both the states and the federal government classified cannabis as a dangerous …

Exited Prostitution Survivor Policy Platform, Marian Hatcher, Alisa L. Bernard, Allison Franklin, Audrey Morrissey, Beth Jacobs, Cherie Jimenez, Kathi Hardy, Marlene Carson, Nikki Bell, Rebecca Bender, Rebekah Charleston, Shamere Mckenzie, Vednita Carter

Dignity: A Journal of Analysis of Exploitation and Violence

Survivors of prostitution propose a policy reform platform including three main pillars of priority: criminal justice reforms, fair employment, and standards of care. The sexual exploitation of prostituted individuals has lasting effects which can carry over into many aspects of life. In order to remedy these effects and give survivors the opportunity to live a full and free life, we must use a survivor-centered approach to each of these pillars to create change. First, reform is necessary in the criminal justice system to recognize survivors as victims of crime and not perpetrators, while holding those who exploited them fully responsible. …

Reconstructing The Rule Of Lenity, David S. Romantz

Cardozo Law Review

No abstract provided.

Demanding Accountability In Domestic Violence Courts, Johnna Pike

Violence Against Women conference

This presentation explores whether specialized domestic violence courts are achieving their stated objective of abuser accountability. Domestic violence emerged from the private realm of family life into the public consciousness during the 1970s. Since then, there has been a largely successful movement to reframe domestic violence as a “real” social problem necessitating meaningful criminal justice intervention. Within the criminal justice system, victim and feminist groups have mostly prevailed in controlling the discourse around domestic violence as a gender-based offense. As a result, a criminal court model aimed at empowering victims and at holding abusers accountable has emerged. However, the efficacy …

The People's Lawyer: The Role Of Attorney General In The Twenty-First Century, Mark J. Herring

University of Richmond Law Review

For the last five years, it has been my privilege to serve the people as their attorney general. The origin of the position of attorney general can be traced back centuries, but in a world that has become more interconnected, complex, and fast-paced, what does the role of a state attorney general entail in the twenty-first century and beyond? Is the proper role as a diligent but reactive defender of statutes and state agencies, or is there a deeper responsibility that calls for a more proactive and engaged use of its tools and authority? I have found that the job …

Criminal Law And Procedure, Aaron J. Campbell, John I. Jones Iv, Rachel L. Yates

University of Richmond Law Review

This article surveys recent developments in criminal law and procedure in Virginia. Because of space limitations, the authors have limited their discussion to the most significant appellate decisions and legislation.

Juvenile Drug Courts, Allison Washburn

The Kabod

Past criminalization of drug crimes in response to the social control of drugs in the United States has led to harsh punitive sentences for drug crimes. Since 1989, drug courts have proliferated across the United States as a unique response to non-violent drug crimes. Over the past few decades, as legislation has increasingly criminalized drugs, the number of drug crimes has skyrocketed. Juvenile drug courts are a relatively new response to juvenile drug crimes. This paper seeks to explain the purpose and processes of juvenile drug courts to determine the areas of research necessary to better understand these programs and …

Law By Non-Lawyers: The Limit To Limited License Legal Technicians Increasing Access To Justice, Rebecca M. Donaldson

Seattle University Law Review

For the first time in the American legal profession, non-lawyers can openly, independently, ethically, and legally engage in activities recognized by bar associations as the practice of law. In 2012, the Washington Supreme Court passed Admission and Practice Rule 28 (APR 28), establishing the profession’s first paraprofessional licensing scheme that allows non-lawyers to give legal advice. The process authorizes qualified non-lawyers to provide legal advice without the supervision of a lawyer. Washington’s Supreme Court intends for Limited License Legal Technicians, or “LLLTs” as they are known, to increase access to justice by responding to the unmet civil legal needs of …

Reconciling Brady And Pitchess: Association For Los Angeles Deputy Sheriffs V. Superior Court, And The Future Of Brady Lists, Ryan T. Cannon

San Diego Law Review

In 2014, the Los Angeles County Sherriff’s Department (LASD) joined a growing number of law enforcement agencies utilizing “Brady lists”; a system by which prosecutorial agencies are notified of potential Brady/Giglio material in a police officer’s personnel file. These lists enable prosecutors to comply with their constitutional Brady disclosure obligations—to turn over all evidence material to guilt or punishment, including impeachment material. However, in 1978 California made the contents of police officer personnel files confidential with the passage of the Pitchess statutes. Since that time, California courts have wrestled with the extent of allowable disclosure under the Pitchess statutes, including …

Visibly (Un)Just: The Optics Of Grand Jury Secrecy And Police Violence, Nicole Smith Futrell

Dickinson Law Review (2017-Present)

Police violence has become more visible to the public through racial justice activism and social justice advocates’ use of technology. Yet, the heightened visibility of policing has had limited impact on transparency and accountability in the legal process, particularly when a grand jury is empaneled to determine whether to issue an indictment in a case of police violence. When a grand jury decides not to indict, the requirement of grand jury secrecy prevents public disclosure of the testimony, witnesses, and evidence presented to the grand jury. Grand jury secrecy leaves those who have seen and experienced the act of police …

Nineteen Minutes Of Horror: Insights From The Scorpions Execution Video, Iva Vukušić

Genocide Studies and Prevention: An International Journal

After the fall of Srebrenica in summer of 1995, the Scorpions unit, dispatched to support the Bosnian Serb Army as it took over the enclave, shot six men in Trnovo. The men, three of whom were underage, were some of thousands of Bosnian Muslims that fell into the hands of Bosnian Serb troops, and that were executed in the days and weeks following July 11th. A member of the unit filmed the execution. Fragments of the video were first shown during the Slobodan Milosevic trial, and multiple times in the years after, in the courtrooms in The Hague and Belgrade. …

The Johnson & Johnson Problem: The Supreme Court Limited The Armed Career Criminal Act's "Violent Felony" Provision—And Our Children Are Paying, Shelby Burns

Pepperdine Law Review

The Armed Career Criminal Act and United States Sentencing Guidelines prescribe sentence enhancements based upon a defendant’s prior convictions. In particular, these federal sentencing tools contain violent felony provisions that outline the requirements a state criminal statute must satisfy for a conviction to constitute a violent felony, making the convicted person eligible for a federal sentence enhancement. However, the Supreme Court’s holdings in Johnson v. United States, 559 U.S. 133 (2010) and Johnson v. United States, 135 S. Ct. 2551 (2015) severely limited the scope of both sentencing tools’ violent felony provisions, making it more difficult for certain crimes to …

Appeals By The Prosecution, Nancy J. King, Michael Heise

Vanderbilt Law School Faculty Publications

Scholarly and public debates about criminal appeals have largely taken place in an empiri- cal vacuum. This study builds on our prior empirical work exploring defense-initiated criminal appeals and focuses on criminal appeals by state and federal prosecutors. Exploit- ing data drawn from a recently released national sample of appeals by state prosecutors decided in 2010, as well as data from all appeals by federal prosecutors to the U.S. Courts of Appeals terminated in the years 2011 through 2016, we provide a detailed snapshot of noncapital, direct appeals by prosecutors, including extensive information on crime type, claims raised, type of …

The First Amendment Case For Public Access To Secret Algorithms Used In Criminal Trials, Vera Eidelman

Georgia State University Law Review

As this Article sets forth, once a computerized algorithm is used by the government, constitutional rights may attach. And, at the very least, those rights require that algorithms used by the government as evidence in criminal trials be made available—both to litigants and the public. Scholars have discussed how the government’s refusal to disclose such algorithms runs afoul of defendants’ constitutional rights, but few have considered the public’s interest in these algorithms—or the widespread impact that public disclosure and auditing could have on ensuring their quality.

This Article aims to add to that discussion by setting forth a theory of …

Safety From Flawed Forensic Sciences Evidence, Boaz Sangero

Georgia State University Law Review

This article addresses the way to safety in the context of forensic sciences evidence. After presenting the current lack of safety, which I term “unsafety,” I raise some possible safety measures to contend with this. My suggestions are grounded on two bases: first, the specific analysis of each type of evidence in line with the most recent research on the subject; and second, modern safety theory and its application to the criminal justice system. It is important to stress that my proposals represent only some of the conceivable safety measures. Developing a comprehensive safety theory for the criminal justice system …

Georgia State Law Review Symposium Keynote Address: Uncovering Forensic Flaws - An Outside Perspective, Spencer S. Hsu

Georgia State University Law Review

This transcript is a reproduction of the Keynote Address by Spencer Hsu at the 2017–2018 Georgia State University Law Review Symposium — From the Crime Scene to the Court room: The Future of Forensic Science Reform — on April 6, 2018.

Spencer Hsu is an investigative reporter at the Washington Post, a two-time Pulitzer Prize finalist, and a national Emmy Award nominee.

Garbage In, Garbage Out: Revising Strickland As Applied To Forensic Science Evidence, Mark Loudon-Brown

Georgia State University Law Review

Sophisticated scientific evidence may be an undesirable subject matter for a judge to tackle anew, and it can be even more daunting for a defense attorney to confront, particularly one faced with a crushing caseload. It can be tempting to avoid a challenge to a vulnerable forensic science discipline—be it new, novel, or simply recently called into question—when a lawyer reasonably believes that the evidence will be admitted regardless.

Worse still, it may seem reasonable to disregard any adversarial challenge to incriminatory science altogether, and to opt instead for a different defense or to encourage a guilty plea. With hundreds …

Deploying The Secret Police: The Use Of Algorithms In The Criminal Justice System, Jessica Gabel Cino

Georgia State University Law Review

Algorithms saturate our lives today; from curated song lists to recommending “friends” and news feeds, they factor into some of the most human aspects of decision-making, tapping into preferences based on an ever-growing amount of data. Regardless of whether the algorithm pertains to routing you around traffic jams or finding your next dinner, there is little regulation and even less transparency regarding just how these algorithms work. Paralleling this societal adoption, the criminal justice system now employs algorithms in some of the most important aspects of investigation and decision-making.

The lack of oversight is abundantly apparent in the criminal justice …

A Discouraging Omen: A Critical Evaluation Of The Approved Uniform Language For Testimony And Reports For The Forensic Latent Print Discipline, Simon A. Cole

Georgia State University Law Review

The theme of the 2018 Georgia State University Law Review symposium is the Future of Forensic Science Reform. In this Article, I will assess the prospects for reform through a critical evaluation of a document published in February 2018 by the United States Department of Justice (DOJ), the Approved Uniform Language for Testimony and Reports for the Forensic Latent Print Discipline (ULTR).

I argue that this document provides reason to be concerned about the prospects of forensic science reform. In Part I, I discuss the background of the ULTR. In Part II, I undertake a critical evaluation of the ULTR. …

The Overdose/Homicide Epidemic, Valena E. Beety

Georgia State University Law Review

This Article explores the lack of regulation of coroners, concerns within the forensic science community on the reliability of coroner determinations, and ultimately, how elected laypeople serving as coroners may influence the rise in drug-induced homicide prosecutions in the midst of the opioid epidemic.

This Article proposes that the manner of death determination contributes to overdoses being differently prosecuted; that coroners in rural counties are more likely to determine the manner of death for an illicit substance overdose is homicide; and that coroners are provided with insufficient training on interacting with the criminal justice system, particularly on overdose deaths. Death …

Undocumented Crime Victims: Unheard, Unnumbered, And Unprotected, Pauline Portillo

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Litigating Federal Habeas Corpus Cases: One Equitable Gateway At A Time, Eve Brensike Primus

Other Publications

Habeas corpus, also known as the Great Writ, was meant to be a “bulwark against convictions that violate fundamental fairness,” according to the Supreme Court. Yet today, federal courts provide relief in fewer than half of one percent of cases in which a non-capital state prisoner seeks relief through habeas. The Great Writ, it would seem, is no longer so great. In Litigating Federal Habeas Corpus Cases: One Equitable Gateway at a Time, Eve Brensike Primus examines the various procedural and substantive hurdles that have been erected in the past half century that make it nearly impossible for state prisoners …

What U.S Defense Attorneys Know About Facial Composites, Marisa H. Jaross

Student Theses

The Innocence Project’s DNA exoneration database (2018) indicates that approximately 27% of wrongful conviction cases containing eyewitness evidence also included a composite or sketch[1] of the perpetrator. This statistic is alarming, given that composites are rarely used in criminal investigations (PERF, 2013), but not surprising considering “good” composites are notoriously difficult to construct (e.g., Wells, Charman, & Olson, 2005). It is well understood that eyewitness evidence can be particularly persuasive evidence of guilt for juries and thus we were interested in learning more about how defense attorneys prepare for trial with respect to this specific type of eyewitness evidence. …

Sniffing Out The Fourth Amendment: United States V. Place-Dog Sniffs-Ten Years Later, Hope Walker Hall

Maine Law Review

In the endless and seemingly futile government war against drugs, protections afforded by the Fourth Amendment of the United States Constitution may have fallen by the wayside as courts struggle to deal with drug offenders. The compelling government interest in controlling the influx of drugs all too often results in a judicial attitude that the ends justify the means. Judges can be reluctant to exclude evidence of drugs found in an unlawful search pursuant to the exclusionary rule, which provides that illegally obtained evidence may not be used at trial. The exclusion of drugs as evidence in drug cases often …

Confronting Silence: The Constitution, Deaf Criminal Defendants, And The Right To Interpretation During Trial, Deirdre M. Smith

Maine Law Review

For most deaf people, interactions with the hearing community in the absence of interpretation or technological assistance consist of communications that are, at most, only partly comprehensible. Criminal proceedings, with the defendant's liberty interest directly at stake, are occasions in which the need for deaf people to have a full understanding of what is said and done around them is most urgent. Ironically, the legal “right to interpretation” has not been clearly defined in either statutory or case law. Although the federal and state constitutions do not provide a separate or lesser set of rights for deaf defendants, their situation …

Prisoner's Dilemma—Exhausted Without A Place Of Rest(Itution): Why The Prison Litigation Reform Act's Exhaustion Requirement Needs To Be Amended, Ryan Lefkowitz

The Scholar: St. Mary's Law Review on Race and Social Justice

The Prison Litigation Reform Act (PLRA) passed in 1996 in an effort to curb litigation from prisoners. The exhaustion requirement of the PLRA requires prisoners to fully exhaust any administrative remedies available to them before filing a lawsuit concerning any aspect of prison life. If a prisoner fails to do so, the lawsuit is subject to dismissal. The exhaustion requirement applies to all types of prisoner lawsuits, from claims filed for general prison conditions to excessive force and civil rights violations. It has been consistently and aggressively applied by the courts, blocking prisoners’ lawsuits from ever going to trial. Attempts …