Criminal Law Commons^™

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because the …

2018 Survey Of Rhode Island Case Law

Roger Williams University Law Review

No abstract provided.

Raising The Cost Of Using Title Iii Wiretap Evidence, Derik T. Fettig

Mitchell Hamline Law Review

No abstract provided.

Virtual Hearings And Blockchain Technology Solutions In Criminal Law, Chantell Bergquist

Political Science Theses and Capstones

Technology has evolved and raided our personal and professional lives. Although the courts are not immune to the advancement and integration of technology, the courts are not keeping up with relevant technological advancements. Historically, courts have been hesitant to embrace new technologies despite the Federal Rules of Civil Procedure and the American Bar Association Model Rules of Professional Conduct. Rule 1 of the Federal Rules of Civil Procedure creates the right to a “just, speedy, and inexpensive determination of every action and proceeding.” Likewise, the American Bar Association Model Rules of Professional Conduct have determined attorneys must “keep abreast of …

Where The Constitution Falls Short: Confession Admissibility And Police Regulation, Courtney E. Lewis

Dickinson Law Review (2017-Present)

A confession presented at trial is one of the most damning pieces of evidence against a criminal defendant, which means that the rules governing its admissibility are critical. At the outset of confession admissibility in the United States, the judiciary focused on a confession’s truthfulness. Culminating in the landmark case Miranda v. Arizona, judicial concern with the reliability of confessions shifted away from whether a confession was true and towards curtailing unconstitutional police misconduct. Post-hoc constitutionality review, however, is arguably inappropriate. Such review is inappropriate largely because the reviewing court must find that the confession was voluntary only by …

A Warrant Requirement Resurgence: The Fourth Amendment In The Roberts Court, Benjamin Priester

Journal Publications

Over many years, the United States Supreme Court has developed an extensive body of precedent interpreting and enforcing the provisions of the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures by law enforcement agents conducting criminal investigations. Commonly called the "warrant requirement," one key component of this case law operates to deem some police investigatory techniques to be unconstitutional unless they are conducted pursuant to a search warrant issued in advance by a judge. The terms of the doctrine and its exceptions also authorize other investigatory actions as constitutionally permissible without a search warrant. The …

Judicial Conflict Resolution In Plea Bargaining As The Golden Mean Between The Adversarial And Inquisitorial Legal Systems, Golan Luzon

Cardozo Journal of Conflict Resolution

This article seeks to develop a better understanding of plea bargaining as a mechanism of judicial conflict resolution in criminal law. Plea bargaining plays a significant role in both the adversarial and inquisitorial legal systems. The article examines how the plea-bargaining model is designed in both legal systems by comparing two civil law countries (Italy and Germany) with two common law countries (England and Wales and the U.S.). I argue that two developments-a mechanism similar to plea bargaining in inquisitorial systems and judges' participation in the criminal plea bargaining negotiations in adversarial legal systems-are part of the same phenomenon seeking …

A Review Of The Wrongful Convictions Reader: A Comprehensive Resource For Students, Faculty, And Practitioners, Stephanie Roberts Hartung

Cardozo Law Review de•novo

Professor Stephanie Roberts Hartung reviews The Wrongful Convictions Reader, a 2019 book by Russell D. Covey and Valena E. Beety.

Privacy And Security Across Borders, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

Three recent initiatives -by the United States, European Union, and Australiaare opening salvos in what will likely be an ongoing and critically important debate about law enforcement access to data, the jurisdictional limits to such access, and the rules that apply. Each of these developments addresses a common set of challenges posed by the increased digitalization of information, the rising power of private companies delimiting access to that information, and the cross-border nature of investigations that involve digital evidence. And each has profound implications for privacy, security, and the possibility of meaningful democratic accountability and control. This Essay analyzes the …

Pleading Guilty To Innocence: How Faulty Field Tests Provide False Evidence Of Guilt, Kaelyn Phelps

Roger Williams University Law Review

No abstract provided.

The Inability To Self-Diagnose Bias, Christopher Robertson

Faculty Scholarship

The Constitution guarantees litigants an 'impartial' jury, one that bases its judgment on the evidence presented in the courtroom, untainted by affiliations with the parties, racial animus, or media coverage that may include inadmissible facts, a one-sided portrayal, and naked opinion. Problems of juror bias arise in almost every trial – state and federal, civil and criminal - and the problem is most severe in the highest profile cases, where the need for accuracy and legitimacy in outcomes is most salient.

The Supreme Court has instructed courts to use a simple method to determine whether jurors are biased: ask them. …

The "Damned" In A Flashover State: Arson And The Use Of Scientific Methods And Expert Testimony In West Virginia, Christopher W. Maidona

West Virginia Law Review Online

The fire moved quickly through the house as Cameron Todd Willingham screamed for his children from the front porch. Inside the blaze were his three children. Firefighters arrived, uncoiled hoses, and aimed water at the raging fire. However, all three Willingham children died that night from smoke inhalation.

News of the December 23, 1991, tragedy spread throughout Corsicana, Texas. Meanwhile, investigators sought to determine what caused the fire. The investigators “toured the perimeter of the house, taking notes and photographs, like archeologists mapping out a ruin.” In the kitchen, they found smoke and heat damage—signs the fire had not originated …

Psychosocial Analysis Of An Ethnography At The Cuyahoga County Public Defenders Office, Ernest M. Oleksy

The Downtown Review: An Interdisciplinary Journal Written and Peer-Reviewed by Mandel Honors College Students at Cleveland State University

Too often, social science majors become jaded with their field of study due to a misperception of the nature of many potential jobs which they are qualified for. Such discord is prevalent amongst undergraduates who strive for work in the criminal justice system. Hollywood misrepresentations become the archetypes of the aforementioned field, leaving out the necessity and ubiquity of accompanying desk work. Still other social science majors struggle to identify theoretical interpretations in praxis.

Forensic Science: Complex Admissibility Standard For Scientific Evidence And Expert Witness's Testimony, Md Wahidur Rahman, Marissa J. Moran

Publications and Research

Modern science forces the world to accept new theories and invention. Science has invented several tools, which are used in the legal system to dispute criminal cases. Scientific evidence and expert witness testimony have weight in the courtroom because those are scientifically proved to be true. Even though there are few case laws and Federal rule of evidence 1975, still the admissibility standard is complex which may lead injustice.

This article examines the Federal rule of evidence, case laws and scholars’ opinion to address the complexity of the admissibility standard of scientific evidence and expert testimony. The first legal question …

Sb 127 - Criminal Procedure, Adriana C. Heffley, Allison S. Kim

Georgia State University Law Review

The Act introduces procedure by which victims who were not provided notice criminal proceedings, after requesting notice, may file a motion to be acknowledged by the court. This Act is meant to create a means by which a victim’s rights, as introduced by the constitutional amendment in SR 146, may be raised or enforced.

Maine Sexual Assault Kit Study, Alison Grey, Erika Arthur, Viacheslav Tomenko, George Shaler Mph, Elisabeth Snell

Justice Policy

The Cutler Institute recently released the Maine Sexual Assault Kit (SAK) Study Report. This report was produced for the Maine Coalition Against Sexual Assault (MECASA). In 2018 MECASA contracted with researchers at the Cutler Institute, with funding in part from a grant from the Office on Violence Against Women STOP Violence Against Women Formula Grant Program, through the Maine Department of Public Safety.

Researchers employed a mixed-methods approach to gather comprehensive data about the current status of sexual assault kits in Maine; the challenges and successes of processing and storing kits in Maine; and nationally recognized best practices.

Findings from …

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 …

A "Bad Rap":R. V. Skeete And The Admissibility Of Rap Lyric Evidence, Ngozi Okidegbe

Faculty Scholarship

The use of accused-authored rap lyric evidence is no longer rare in Canadian criminal proceedings. Adduced by Crown prosecutors, rap lyrics written or co-written by an accused are increasingly used in criminal trials as evidence of the accused’s intent, knowledge, motive, identity, or confession to the commission of the specific offence charged. The practice is not without controversy. The introduction of an accused’s artistic work in the form of rap lyrics at trial engages trial fairness concerns. Without a keen awareness of the social and cultural context that produces rap music, trial actors risk inflating their probative value and underestimating …

Revenge Porn, Thomas Lonardo, Tricia P. Martland, Rhode Island Bar Journal

Life of the Law School (1993- )

No abstract provided.

The (Not-So) “Brave New World Of International Criminal Enforcement”: The Intricacies Of Multi-Jurisdictional White-Collar Investigations, Emily T. Carlson

Brooklyn Law Review

We have entered a new age of international white-collar crime and are seeing the growing interdependency of the Department of Justice (DOJ) and parallel foreign agencies to conduct investigations and subsequent prosecutorial proceedings. This coordination to combat these crimes, however, has revealed a troubling question—how can enforcement agencies work effectively together if they have fundamental differences in the legal authority governing testimony-gathering and what evidence is allowed before a grand jury? The Court of Appeals for the Second Circuit, in United States v. Allen, confronted this issue directly as it overturned two indictments arising out of suspected manipulation of a …

Throwing Out Junk Science: How A New Rule Of Evidence Could Protect A Criminal Defendant's Right To Confront Forensic Scientists, Michael Luongo

Journal of Law and Policy

As the forensic science industry grows, so do the scandals – overburdened crime labs, unverified science, corrupt analysts, and diminishing federal oversight. Given the need to ensure that valid forensic science-based evidence is used at trial, a criminal defense attorney typically has the opportunity to cross-examine the scientist who conducted the forensic analysis. However, the 2012 Supreme Court decision of Williams v. Illinois has muddied an otherwise cohesive Confrontation Clause doctrine, allowing for the admission of forensic evidence without the testimony of the forensic scientist, but with no clear holding and different interpretations about what is considered “testimonial evidence.” To …

Mathews V. State, 134 Nev. Adv. Op. 63 (Aug. 23, 2018), Christi Dupont

Nevada Supreme Court Summaries

The Court clarified the requirements for the introduction of an expert witness under NRS 50.275. Moreover, the Court concluded that the district court abused its discretion when it improperly applied the Hallmark factors and disqualified Dr. Johnson from testifying. Accordingly, the Court granted the defendant a new trial.

Richard V. State, 134 Nev. Adv. Op. 64 (Aug. 23, 2018), Kaila Patrick

Nevada Supreme Court Summaries

The Court determined that a declarant must have testified and have been subject to cross-examination about a specific out-of-court statement for it to be excluded from the definition of hearsay as a prior inconsistent statement or identification. Further, the Court held that the errors of admission made by the district court were harmless.

Hidden In Plain View: Juries And The Implicit Credibility Given To Police Testimony, Jonathan M. Warren

DePaul Journal for Social Justice

No abstract provided.

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 …

The Uk Forensic Science Regulator: A Model For Forensic Science Regulation?, Carole Mccartney, Emmanuel N. Amoako

Georgia State University Law Review

The use of an array of scientific techniques and technologies is now considered customary within criminal justice, with technological developments and scientific advancements regularly added to the crime investigator’s arsenal. However, the scientific basis, reliability, and fallibility of the application of such “forensic science” (and the resulting scientific evidence) continues to come under intense scrutiny. In response to apparently irremediable problems with the quality of scientific evidence in the United Kingdom (UK), the government created the role of “Forensic Science Regulator” in 2007.

The introduction of a regulator was intended to establish quality standards for all forensic science providers in …

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 …