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Articles 271 - 300 of 362
Full-Text Articles in Courts
A Twice-Told Tale: Plausibility And Narrative Coherence In Judicial Storytelling, Chris Rideout
A Twice-Told Tale: Plausibility And Narrative Coherence In Judicial Storytelling, Chris Rideout
Faculty Articles
What makes the stories told in court believable, and thus convincing? Part of the answer, this article suggests, lies in narrative coherence. Stories “make sense” and are plausible, not because they necessarily correspond in a direct way to “what really happened,” but rather because they seem structurally whole, consistent, and complete. They have achieved narrative coherence. After considering the role of narrative coherence in the plausibility of narratives, the article presents a typology for narrative coherence, breaking it down into external and internal coherence, with further component parts to each one. The article then turns to the Supreme Court case …
Casual Ostracism: Jury Exclusion On The Basis Of Criminal Convictions, Anna Roberts
Casual Ostracism: Jury Exclusion On The Basis Of Criminal Convictions, Anna Roberts
Faculty Articles
Statutes in forty-eight states permit the exclusion of those with felony convictions from criminal juries; thirteen states permit the exclusion of those with misdemeanor convictions. The reasons given for these exclusions, which include the assumption that those with convictions are embittered against the state, do not justify their costs. Procedural justice theories indicate that embitterment of those with criminal convictions need not – and should not – be assumed. Rather, policymakers should do what they can to avoid such embitterment. This article therefore proposes that automatic statutory exclusions on the basis of criminal convictions should be abandoned. If a juror …
Full Disclosure: Cognitive Bias, Informants, And Search Warrant Scrutiny, Mary Bowman
Full Disclosure: Cognitive Bias, Informants, And Search Warrant Scrutiny, Mary Bowman
Faculty Articles
This article posits that cognitive biases play a significant role in the gap between the rhetoric regarding Fourth Amendment protection and actual practices regarding search warrant scrutiny, particularly for search warrants based on informants’ tips. Specifically, this article examines the ways in which implicit bias, tunnel vision, priming, and hindsight bias can affect search warrants. These biases can affect each stage of the search warrant process, including targeting decisions, the drafting process, the magistrate’s decision whether to grant the warrant, and post-search review by trial and appellate courts. These biases create room for informant falsehoods to go unchecked, with a …
Protect Me From Myself: Determining Competency To Waive The Right To Counsel During Civil-Commitment Proceedings In Washington State, Jacob J. Stender
Protect Me From Myself: Determining Competency To Waive The Right To Counsel During Civil-Commitment Proceedings In Washington State, Jacob J. Stender
Seattle University Law Review
This Comment argues that an unarticulated, heightened standard of competency to waive counsel, under which Washington currently operates, is the ideal standard to address the unique concerns that exist in civil- commitment proceedings. This Comment clarifies the existing law governing the determination of a party’s right to waive counsel, as well as the determination of the validity of such a waiver. This Comment also articulates a comprehensive inquiry standard for trial courts, both within and outside of Washington, to apply when determining the competency of a party and the validity of a waiver. The goal of this express determination standard …
“Like Wolves In Sheep’S Clothing”: Combating Racial Bias In Washington State’S Criminal Justice System, Krista L. Nelson, Jacob J. Stender
“Like Wolves In Sheep’S Clothing”: Combating Racial Bias In Washington State’S Criminal Justice System, Krista L. Nelson, Jacob J. Stender
Seattle University Law Review
Despite their differences, both the majority and concurring opinions in Monday present new ways to address prosecutorial misconduct, deter the injection of racial bias into courtroom proceedings, and create substantively similar outcomes. Part II of this Note discusses the traditional prosecutorial misconduct test in Washington State, as well as the rules articulated by the Monday majority and concurrence. Part III discusses the implications of both the majority and concurring opinions, the primary differences in their approaches to deterrence, the degree of racial bias they require to warrant reversal of a conviction, and the discretion they afford the judiciary. Part III …
The Impact Of Implicit Racial Bias On The Exercise Of Prosecutorial Discretion, Robert J. Smith, Justin D. Levinson
The Impact Of Implicit Racial Bias On The Exercise Of Prosecutorial Discretion, Robert J. Smith, Justin D. Levinson
Seattle University Law Review
The Article is organized as follows: Part II provides an introduction to implicit bias research, orienting readers to the important aspects of implicit bias most relevant to prosecutorial discretion. Part III begins the examination of implicit bias in the daily decisions of prosecutors. The Part presents key prosecutorial discretion points and specifically connects each of them to implicit bias. Part IV recognizes that, despite compelling proof of implicit bias in a range of domains, there is no direct empirical proof of implicit bias in prosecutorial decision-making. It thus calls for an implicit bias research agenda designed to further examine how …
“If Justice Is Not Equal For All, It Is Not Justice”: Racial Bias, Prosecutorial Misconduct, And The Right To A Fair Trial In State V. Monday, Michael Callahan
“If Justice Is Not Equal For All, It Is Not Justice”: Racial Bias, Prosecutorial Misconduct, And The Right To A Fair Trial In State V. Monday, Michael Callahan
Seattle University Law Review
This Note argues that of the three opinions from Monday, Washington state courts should follow Chief Justice Madsen’s concurring opinion. The Monday decision also raises three questions that none of the opinions adequately answer: who does Monday apply to, what conduct does Monday forbid, and what is the legal source of the rules from Monday? The court will have to answer these questions in the future to determine the scope of its new rules. Part II of this Note discusses how Washington courts previously addressed the issue of prosecutorial misconduct and appeals to racial bias in trials. Part …
Dead Wrong: Why Washington’S Deadly Weapon Criminal Sentencing Enhancement Needs “Enhancement”, James Harlan Corning
Dead Wrong: Why Washington’S Deadly Weapon Criminal Sentencing Enhancement Needs “Enhancement”, James Harlan Corning
Seattle University Law Review
This Comment confronts the difficult question of how to reformulate the deadly weapon sentencing enhancement to better align it with the policy goals of deterring and punishing armed crime. Part II explores the constitutional and practical defects in each of the three formulations of the sentencing enhancement’s armed requirement by delving into the enhancement’s legislative history and the judicial struggle to interpret it. Part III analyzes the need for a more nuanced approach to the weapon enhancement by exploring key criticisms about the enhancement’s scope and application. Part IV argues that the Washington legislature must provide courts with more rigid …
Preliminary Report On Race And Washington's Criminal Justice System, Task Force On Race And The Criminal Justice System
Preliminary Report On Race And Washington's Criminal Justice System, Task Force On Race And The Criminal Justice System
Seattle University Law Review
For this Report, the Research Working Group reviewed evidence on disproportionality in Washington’s criminal justice system and considered whether crime commission rates accounted for this disproportionality. We found that crime commission rates by race and ethnicity are largely unknown and perhaps unknowable, but that some researchers simply take arrest rates as good proxies for underlying commission rates for all crimes.We found that use of arrest rates likely overstates black crime commission rates for several reasons.68 But even if arrest rates are used as a proxy for underlying crime commission rates, the extent of racial disproportionality is not explained by commission …
A Call For Judicial Scrutiny: How Increased Judicial Discretion Has Led To Disparity And Unpredictability In Federal Sentencings For Child Pornography, Loren Rigsby
Seattle University Law Review
The United States Sentencing Commission (USSC) has made child pornography related crimes among the most harshly punishable federal offenses. Nevertheless, sentencing judges have regained the right to depart from the recommended Federal Sentencing Guidelines (Guidelines). The Guideline range for child pornography reflects sound and clear congressional intent to impose harsh penalties on defendants to deter, and ultimately eliminate, the market for child pornography. For this reason, this Comment argues that sentences that fall outside the Guidelines range should be reviewed with much greater scrutiny and should not be used solely to reflect a judge’s view that the advised sentence is …
Penumbral Thinking Revisited: Metaphor In Legal Argumentation, Chris Rideout
Penumbral Thinking Revisited: Metaphor In Legal Argumentation, Chris Rideout
Faculty Articles
In the modern jurisprudence of the United States Supreme Court, the controversy over the place of metaphor came directly into the spotlight in Griswold v. Connecticut. Justice Douglas, writing for the majority and relying in part on metaphoric reasoning for his argument, located a right to privacy in the penumbral area formed by emanations from specific guarantees in the Bill of Rights. The various opinions in Griswold represent a divide regarding the place of metaphoric reasoning in legal argument. Justice Douglas employs metaphoric reasoning, while several of his fellow justices either avoid it or reject it. Because the case has …
Sharing Stories: Narrative Lawyering In Bench Trials, Paul Holland
Sharing Stories: Narrative Lawyering In Bench Trials, Paul Holland
Faculty Articles
Narrative lawyering theorists have demonstrated the ways in which the dynamics of stories affect the way lawyers deliver and jurors receive messages within trial. However, relatively little attention has been paid to the distinctive ways in which stories are developed in bench trials. Examining three roughly contemporaneous bench trials, this Article illuminates how this trial format requires lawyers to be both performers and audience, alternating roles frequently, sometimes within the span of a breath or a gesture. The availability of feedback to the lawyer and the possibility of direct intervention by the fact-finder produce a stark contrast to what lawyers …
Democratizing The Courts: How An Amicus Brief Helped Organize The Asian American Community To Support Marriage Equality, Robert S. Chang, Karin Wang
Democratizing The Courts: How An Amicus Brief Helped Organize The Asian American Community To Support Marriage Equality, Robert S. Chang, Karin Wang
Faculty Articles
In this essay, the authors offer an alternative rationale for amicus practice. This rationale emerges from thier experience working on a brief in support of marriage equality that sixty-three Asian American organizations endorsed. They found that an amicus brief can be an effective tool to engage and educate community-based organizations and their constituencies, thereby helping to advance social justice issues. Their story also illustrates how amicus practice can be used to organize communities around a legal issue and to democratize the courts. In this way, even if the effect of amicus briefs on litigation outcomes may be marginal, the process …
Focus On Batson: Let The Cameras Roll, Mimi Samuel
Focus On Batson: Let The Cameras Roll, Mimi Samuel
Faculty Articles
While the Supreme Court outlawed discrimination in jury selection over 40 years ago, both empirical studies and candid interviews show that lawyers routinely rely on characteristics such as race, gender, and religion in striking prospective jurors. In large part, this practice continues because, when challenged, attorneys proffer non-verbal factors such as facial expressions, inattentiveness, eye contact (or lack thereof), or even laughing or coughing to justify their peremptory strikes. Without a way to assess the validity of these reasons, the trial judge and then the appellate court on review, have little ability to enforce the anti-discrimination prohibition set forth in …
John Calmore’S America, Robert S. Chang, Catherine Smith
John Calmore’S America, Robert S. Chang, Catherine Smith
Faculty Articles
In their contribution to this symposium honoring Professor John Calmore, Professors Robert Chang and Catherine Smith analyze the recent school desegregation case, Parents Involved in Community Schools v. Seattle School District No. 1, through the lens of Professor Calmore's work. In particular, they locate this case as part of what Professor Calmore calls the Supreme Court's Racial Project. Understood as a political project that reorganizes and redistributes resources along racial lines, the Supreme Court's Racial Project creates a jurisprudence around race that solidifies the work of the new right and neoconservatives. Borrowing from Calmore's methodology, Professors Chang and Smith clarify …
From Bad To Worse?: Some Early Speculation About The Roberts Court & The Constitutional Fate Of The Poor, Andy Siegel
From Bad To Worse?: Some Early Speculation About The Roberts Court & The Constitutional Fate Of The Poor, Andy Siegel
Faculty Articles
Conventional wisdom - supported in large measure by blackletter law - suggests that discrimination on the basis of wealth or class largely escapes constitutional sanction. If the conventional wisdom is correct, then issues of class and equal protection represent one area in which advocates of a more robust individual rights jurisprudence have little to fear from the Roberts Court. In this essay, prepared for a Symposium on "The Roberts Court and Equal Protection: Gender, Race, and Class," Professor Siegel offers a contrary view. He makes three related observations. First, existing caselaw is more complex than usually acknowledged, offering substantial interstitial …
Federal Rule Of Civil Procedure 52(A) As An Ideological Weapon?, Bryan Adamson
Federal Rule Of Civil Procedure 52(A) As An Ideological Weapon?, Bryan Adamson
Faculty Articles
In this article, the author explores Federal Rule of Civil Procedure 52(a) and standard of review choice to determine whether appellate judges can exploit its terms to pursue ideological goals. The author examines the operative terms of Rule 52(a), viz., findings of fact, clear error, and documentary evidence, and concludes that they are so malleable as to give appellate judges wide discretion in deciding whether clear error, de novo, or some other standard of review is to be applied. The article then goes on to identify fact typologies appellate courts invoke (historical, ultimate, constitutional, legislative, sociological, scientific, political, economic, jurisdictional), …
The Next Generation Of Legal Citations: A Survey Of Internet Citations In The Opinions Of The Washington Supreme Court And Washington Appellate Courts, 1999-2005, Tina Ching
Faculty Articles
As more legal research is conducted online, it is reasonable to conclude that there will be a corresponding increase in citations to the Internet by judges in their opinions. With the widespread public use of the Internet to access information along with the constant changes and impermanence of websites, citing to the Internet should be an issue of increasing concern to the legal community across the country. This paper surveys the types of Internet sources the Washington state Supreme Court and Appellate Court justices are citing. It discusses the interrelated issues of link rot and the impermanence of web pages, …
Civil Gideon As A Human Right: Is The U.S. Going To Join Step With The Rest Of The Developed World?, Raven Lidman
Civil Gideon As A Human Right: Is The U.S. Going To Join Step With The Rest Of The Developed World?, Raven Lidman
Faculty Articles
This article will discuss the scope of services and rationale for the right to a free lawyer in civil matters as is the case in criminal cases. This right is currently provided in the 49 European member countries in the Council of Europe (COE), Australia, Canada, India, New Zealand, Hong Kong, Japan, Zambia, South Africa, and Brazil. Frequent reference will be made to a chart in the appendix, which condenses extensive information about programs in each of these countries. The article’s general conclusion regarding the foreign programs is that the right to a free lawyer in civil matters is a …
Equal Protection Unmodified: Justice John Paul Stevens And The Case For Unmediated Constitutional Interpretation, Andrew Siegel
Equal Protection Unmodified: Justice John Paul Stevens And The Case For Unmediated Constitutional Interpretation, Andrew Siegel
Faculty Articles
In one of his first major writings on the United States Supreme Court, Justice John Paul Stevens famously argued that "[t]here is only one Equal Protection Clause." In the ensuing three decades, that quotation has become something of a battle cry for commentators critical of tiered equal protection review, many of whom not only seek to dismantle tiered equal protection scrutiny but also to replace it with an alternative (usually more complicated) doctrinal super-structure. This Article argues that his association with these commentators has partially obscured Justice Stevens's unique equal protection methodology. While he shares (indeed inspired) their critique of …
The Principled Executioner: Capital Juries’ Bias And The Benefits Of True Bifurcation, Susan D. Rozelle
The Principled Executioner: Capital Juries’ Bias And The Benefits Of True Bifurcation, Susan D. Rozelle
Faculty Articles
Capital jurors are "death-qualified," or asked to verify at voir dire that their views on the death penalty would not prevent them from serving impartially. Ironically, death qualification itself creates juries unfairly biased toward guilt and death. Empirical investigation has demonstrated this skewing effect for over fifty years, and with the release of the recent Capital Jury Project data, any doubts on this score surely have been laid to rest. Efforts to ameliorate death qualification's prosecutorial bias have been hamstrung, however, by statutory unitary jury requirements like the one found in the Federal Death Penalty Act. Statutes like these, which …
The Court Against The Courts: Hostility To Litigation As An Organizing Theme In The Rehnquist Court’S Jurisprudence, Andrew Siegel
The Court Against The Courts: Hostility To Litigation As An Organizing Theme In The Rehnquist Court’S Jurisprudence, Andrew Siegel
Faculty Articles
Previous commentators on the Rehnquist Court's history, seeking an overarching explanation for the Court's cases, have focused their attention primarily on a revitalized 'federalism, " an agenda-driven "conservatism," and a constitutionally fixated 'Judicial supremacy." While each of these themes is undoubtedly present in the Court's later jurisprudence, this Article argues that one cannot understand the Rehnquist Court's complicated intellectual matrix without taking account of its profound hostility toward the institution of litigation and its concomitant skepticism as to the ability of litigation to function as a mechanism for organizing social relations and collectively administering justice. The article takes a pointillist …
Schooling Miranda: Policing Interrogation In The Twenty-First Century Schoolhouse, Paul Holland
Schooling Miranda: Policing Interrogation In The Twenty-First Century Schoolhouse, Paul Holland
Faculty Articles
This article directs courts to base their application of Miranda on an explicit and contextually sound consideration of the relationships among students, officers and administrators. This article argues that Miranda applies when a state agent questions a student under circumstances in which it would be reasonable for the student to believe that she is the subject of law enforcement authority, regardless of whether a law enforcement officer conducts the questioning. The determination that Miranda applies is not tantamount to a decision that the student was in custody. It is merely a prelude to the custody inquiry. This article does not …
Linguistics As A Knowledge Domain In The Law, Janet Ainsworth
Linguistics As A Knowledge Domain In The Law, Janet Ainsworth
Faculty Articles
This article focuses on the use of linguistic expertise by trial courts to aid in fact-finding. It identifies many of the ways the legal system has been enriched by donations from linguistic scholarship. In addition, it discusses the underutilized-at-present use of linguistic knowledge by appellate courts as a tool for crafting and applying doctrinal rules. Whereas courts have adopted economics analysis in determining appropriate legal rules, linguistic science has been neglected. Linguistic predictions are more testable and falsifiable than economic predictions. Linguistic research can be useful—particularly in the areas of comprehensibility of texts and resolving textual ambiguity. Indeed, legislatures and …
The Court Against The Courts: Hostility To Litigation As An Organizing Theme In The Rehnquist Court’S Jurisprudence, Andrew Siegel
The Court Against The Courts: Hostility To Litigation As An Organizing Theme In The Rehnquist Court’S Jurisprudence, Andrew Siegel
Faculty Articles
Previous commentators on the Rehnquist Court's history, seeking an overarching explanation for the Court's cases, have focused their attention primarily on a revitalized "federalism," an agenda-driven "conservatism," and a constitutionally fixated "judicial supremacy." While each of these themes is undoubtedly present in the Court's later jurisprudence, this article argues that one cannot understand the Rehnquist Court's complicated intellectual matrix without taking account of its profound hostility towards the institution of litigation and its concomitant skepticism as to ability of litigation to function as a mechanism for organizing social relations and collectively administering justice. The article takes a pointillist approach, commenting …
The Right To Die: The Broken Road From Quinlan To Schiavo, Annette E. Clark
The Right To Die: The Broken Road From Quinlan To Schiavo, Annette E. Clark
Faculty Articles
This article discusses the controversial right-to-die law, and the prominent cases surrounding it. It critically outlines various case outcomes with respect to the law, and discusses seminal development the law has seen.
In (Slightly Uncomfortable) Defense Of ‘Triage’ By Public Defenders, John B. Mitchell
In (Slightly Uncomfortable) Defense Of ‘Triage’ By Public Defenders, John B. Mitchell
Faculty Articles
This article argues that triaging is necessary for public defenders and is a response to the work of Professor Freedman. Because states lack money in areas of greater community concern, the defense of indigent criminals is neglected and substantial resources are not likely to be forthcoming. The author previously set out a solution of triaging, which can be conducted either haphazardly or according to some set of rational principles based on ethical theory. The author concurs with Professor Freedman to the extent that the United States Supreme Court in Strickland v. Washington effectively ensures that Sixth Amendment Constitutional guarantees will …
Should Parents Be Allowed To Record A Child's Telephone Conversations When They Believe The Child Is In Danger?: An Examination Ofthe Federal Wiretap Statute And The Doctrine Of Vicarious Consent In The Context Of A Criminal Prosecution, Daniel R. Dinger
Seattle University Law Review
This Article addresses the little-used but important doctrine of vicarious consent; in particular, the Article argues that the doctrine should be more widely accepted by the criminal courts. Part II gives a brief overview of the federal wiretap statute, its state law counterparts, and the doctrine of vicarious consent that has emerged as courts have interpreted federal and state wiretap legislation. Part III addresses the doctrine's viability and, as referenced above, argues that it should be accepted by the criminal courts. Specifically, Part III argues that when a parent records a child's telephone conversations with a third party out of …
When Prosecutors Control Criminal Court Dockets: Dispatches On History And Policy From A Land Time Forgot, Andrew Siegel
When Prosecutors Control Criminal Court Dockets: Dispatches On History And Policy From A Land Time Forgot, Andrew Siegel
Faculty Articles
The decision as to who has the authority to bring a matter up for resolution before a criminal court is one of the most basic decisions a system of criminal adjudication must make. Despite - or perhaps because of - the elemental nature of this structural matter, historians and scholars of criminal procedure have thus far offered a startling paucity of evidence as to the history and policy consequences of different docket control regimes. This article offers the first comprehensive examination of this issue, rescuing the history of criminal court calendar control from the dustbin of history and grappling in …
The Case Of The Little Yellow Cuban Biplane: Can Interest Analysis Reconcile Conflicting Provisions In Federal Statutes And International Treaties?, Diane Lourdes Dick
The Case Of The Little Yellow Cuban Biplane: Can Interest Analysis Reconcile Conflicting Provisions In Federal Statutes And International Treaties?, Diane Lourdes Dick
Faculty Articles
This article analyzes conflicts that arise under international agreements that define and protect foreign ownership interests in civil aircraft, on the one hand, and domestic laws that allow Americans to bring suit against state sponsors of terrorism, on the other hand. Finding that courts often perform concealed interest analyses under the guise of mechanical application of canons of construction, this article recommends a comparative impairment interest analysis approach to resolving this and related conflicts.