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Articles 841 - 870 of 1443
Full-Text Articles in Criminal Law
Secret Evidence And The Due Process Of Terrorist Detentions, Daphne Barak-Erez, Matthew C. Waxman
Secret Evidence And The Due Process Of Terrorist Detentions, Daphne Barak-Erez, Matthew C. Waxman
Faculty Scholarship
Courts across many common law democracies have been wrestling with a shared predicament: proving cases against suspected terrorists in detention hearings requires governments to protect sensitive classified information about intelligence sources and methods, but withholding evidence from suspects threatens fairness and contradicts a basic tenet of adversarial process. This Article examines several models for resolving this problem, including the "special advocate" model employed by Britain and Canada, and the 'Judicial management" model employed in Israel. This analysis shows how the very different approaches adopted even among democracies sharing common legal foundations reflect varying understandings of 'fundamental fairness" or "due process," …
A Witness To Justice, Jessica Silbey
A Witness To Justice, Jessica Silbey
Faculty Scholarship
In the 1988 film The Accused, a young woman named Sarah Tobias is gang raped on a pinball machine by three men while a crowded bar watches. The rapists cut a deal with the prosecutor. Sarah's outrage at the deal convinces the assistant district attorney to prosecute members of the crowd that cheered on and encouraged the rape. This film shows how Sarah Tobias, a woman with little means and less experience, intuits that according to the law rape victims are incredible witnesses to their own victimization. The film goes on to critique what the right kind of witness would …
Toward Ethical Plea Bargaining, Erica J. Hashimoto
Toward Ethical Plea Bargaining, Erica J. Hashimoto
Scholarly Works
Defendants in criminal cases are overwhelmingly more likely to plead guilty than to go to trial. Presumably, at least a part of the reason that most of them do so is that it is in their interest to plead guilty, i.e., they will receive a more favorable outcome if they plead guilty than if they go to trial. The extent to which pleas reflect fair or rational compromises in practice, however, depends upon a variety of factors, including the amount of information each of the parties has about the case. Some level of informational symmetry therefore is critical to the …
How The Courts Opened The Door To Impeaching Criminal Defendants With Prior Convictions, Jeffrey Bellin
How The Courts Opened The Door To Impeaching Criminal Defendants With Prior Convictions, Jeffrey Bellin
Vanderbilt Law School Faculty Publications
This Article spotlights the flawed analytical framework at the heart of the federal courts' approach to one of the most controversial trial practices in American criminal jurisprudence - the admission of prior convictions to impeach the credibility of defendants who testify. As the Article explains, the flawed approach is a byproduct of the courts' reliance on a five-factor analytical framework to implement the governing legal standard enacted by Congress in Federal Rule of Evidence 609. Tracing the evolution of the five-factor framework from its roots in pre-Rule 609 case law, the Article demonstrates that the courts' reinterpretation of the framework …
Theorizing About Self-Incrimination, Ronald J. Allen
Theorizing About Self-Incrimination, Ronald J. Allen
Cardozo Law Review
No abstract provided.
Self-Incrimination Doctrine Is Dead; Long Live Self-Incrimination Doctrine: Confessions, Scientific Evidence, And The Anxieties Of The Liberal State, Kenworthey Bilz
Self-Incrimination Doctrine Is Dead; Long Live Self-Incrimination Doctrine: Confessions, Scientific Evidence, And The Anxieties Of The Liberal State, Kenworthey Bilz
Cardozo Law Review
Confessions have historically been the most compelling evidence the state could offer at a criminal trial. However, improvements in forensic technologies have led to increased use of scientific evidence, such as DNA typing, videotapes, pattern-recognition software, location tracking devices, and the like, with very impressive rates of reliability. The reliability of these methods has become so impressive, in fact, that it far outstrips confessions. This should lead to a reduced reliance on confessions (and other nonscientific evidence, such as eyewitness identifications) over time. However, this does not mean that the doctrine of self-incrimination, which regulates the acquisition and use of …
Deregulating Guilt: The Information Culture Of The Criminal System, Alexandra Natapoff
Deregulating Guilt: The Information Culture Of The Criminal System, Alexandra Natapoff
Cardozo Law Review
The criminal system has an uneasy relationship with information. On the one hand, the criminal process is centrally defined by stringent evidentiary and information rules and a commitment to public transparency. On the other, largely due to the dominance of plea bargaining, criminal liability is determined by all sorts of unregulated, non-public information that never pass through the quality control of evidentiary, discovery, or other criminal procedure restrictions. The result is a process that generates determinations of liability that are often unmoored from systemic information constraints. This phenomenon is exemplified, and intensified, by the widespread use of criminal informants, or …
The Right To Silence Helps The Innocent: A Response To Critics, Alex Stein
The Right To Silence Helps The Innocent: A Response To Critics, Alex Stein
Cardozo Law Review
This Article responds to the numerous critics of Daniel J Seidmann & Alex Stein, The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege, 114 HARV. L. REV. 430 (2000). Under Seidmann and Stein's theory, the right to silence protects innocents who find themselves unable to corroborate their self-exonerating accounts by verifiable evidence. Absent the right, guilty criminals would pool with innocents by making false self-exonerating statements. Factfinders would consequently discount the probative value of all uncorroborated exculpatory statements, at the expense of those innocents who cannot corroborate their true accounts. The right to …
Corporate Confessions, Brandon L. Garrett
Corporate Confessions, Brandon L. Garrett
Cardozo Law Review
In corporate crime investigations, when prosecutors pursue charges against both employees and corporations, confessions raise several novel questions without clear answers in constitutional criminal procedure. First, corporations confess. The firm, a target of a criminal investigation, may itself admit to crimes by employees as part of a settlement agreement with prosecutors. While useful to study in their impact and form, as a constitutional matter such confessions can not be coerced, the Supreme Court has adopted a "collective entity rule" that corporate persons may not invoke Fifth Amendment privilege. Second, before itself confessing, the firm may encourage employees to provide statements …
Introduction: Wherefor The Privilege?, Kate Stith
Introduction: Wherefor The Privilege?, Kate Stith
Cardozo Law Review
No abstract provided.
Self-Incrimination And The Epistemology Of Testimony, Michael S. Pardo
Self-Incrimination And The Epistemology Of Testimony, Michael S. Pardo
Cardozo Law Review
The Supreme Court's limitation of the privilege against self-incrimination to evidence of a testimonial nature has been controversial. The doctrinal reliance on a distinction between physical and testimonial evidence has proven difficult to apply in practice, and it has been criticized as being descriptively inaccurate, analytically incoherent, and normatively indefensible. This article offers a defense of the distinction on epistemological grounds. The philosophical focus on testimony as a source of knowledge provides some insight into what makes testimony distinct as an epistemic source. These considerations are used to provide a coherent and principled way to distinguish what evidence to treat …
Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough
Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough
University of Richmond Law Review
No abstract provided.
Confessing In The Human Voice: A Defense Of The Privilege Against Selfincrimination, Andrew E. Taslitz
Confessing In The Human Voice: A Defense Of The Privilege Against Selfincrimination, Andrew E. Taslitz
Cardozo Public Law, Policy & Ethics Journal
The Fifth Amendment privilege against self-incrimination is a cornerstone of American constitutional law, yet it faces erosion through recent Supreme Court rulings and scholarly critiques. The article presents a novel defense of this privilege, focusing on the protection of the "literal voice" and "metaphorical voice," arguing that compelled speech uniquely harms dignity, identity, and autonomy. It critiques existing justifications as insufficient and proposes a framework rooted in social science and linguistic compulsion, emphasizing the privilege's role in preventing state overreach and safeguarding individual autonomy.
Dna – Intimate Information Or Trash For Public Consumption?, Melanie D. Wilson
Dna – Intimate Information Or Trash For Public Consumption?, Melanie D. Wilson
Scholarly Articles
“Surreptitious sampling” may be police officers’ trump card in cracking otherwise unsolvable crimes as serious as murder, arson and rape. Law enforcement officers engage in surreptitious sampling when they covertly collect DNAsamples from unsuspecting people, who inadvertently leave behind hair, skin cells, saliva or other biological materials.Surreptitious sampling is a terrific crime-resolution tool. It allows diligent law enforcement officers to collect proof-positive evidence of guilt or innocence without the hassle of obtaining a warrant and absent probable cause or reasonable suspicion to believe that the contributor of the biological evidence committed a crime. Provided an officer has the energy and …
Eyewitness Identification Reform In Massachusetts, Stanley Z. Fisher
Eyewitness Identification Reform In Massachusetts, Stanley Z. Fisher
Faculty Scholarship
This article traces the impact of the new scientific learning upon police eyewitness identification procedures in the Commonwealth of Massachusetts. Over the past 25 years, experimental psychologists have devised more reliable techniques for gathering eyewitness identification evidence than have been traditionally used by police. Massachusetts has over 350 autonomous municipal police departments, plus approximately 39 college campus police departments, the state police, and the MBTA (transit) Police Department. The decision how to investigate crime rests principally with the police chief responsible for each department. How does such a system of policing absorb new, scientifically superior methods of investigation?
Detecting Lies Using Demeanor, Bias, And Context, Max Minzner
Detecting Lies Using Demeanor, Bias, And Context, Max Minzner
Cardozo Law Review
No abstract provided.
A Return To The Grand Jury To Promote A Zen Zeal In Prosecutors, Melanie D. Wilson
A Return To The Grand Jury To Promote A Zen Zeal In Prosecutors, Melanie D. Wilson
Scholarly Articles
DNA evidence has freed at least 209 convicted people. Sometimes DNA evidence exonerates a person. Other times, it does not. When it does not exonerate, a prosecutor must decide whether to persist in further prosecution of the defendant. I propose a fresh, but simple, solution for prosecutors who face such choices. To protect the interests of defendants and victims, and to assuage society’s need for fair and accurate outcomes, prosecutors should represent these cases to a grand jury. The grand jury is an easily convened neutral party that can dispassionately evaluate the evidence, old and new, and determine whether a …
Juror Comprehension And The Hard Case: Making Forensic Evidence Simpler, Mark Findlay
Juror Comprehension And The Hard Case: Making Forensic Evidence Simpler, Mark Findlay
Research Collection Yong Pung How School Of Law
The complexity/comprehension nexus as it impacts on juror decision-making is addressed in the particular context of prosecution-led DNA evidence. Such evidence is for jurors the subject of pre-trial preconceptions, and is notoriously difficult to present and argue before a jury. The article looks at the comprehension of forensic evidence by jurors, a task qualified by the opinion of legal professionals whose responsibility it is to present and interpret such evidence in adversarial contexts.Jurors were surveyed post-verdict in trials where forensic evidence featured in circumstantial cases. These insights into comprehension were qualified by contesting views of legal professionals, and critical reflections …
Are Journalists Privileged?: Panel Discussion, Anthony Lewis, Max Frankel, Victor Kovner
Are Journalists Privileged?: Panel Discussion, Anthony Lewis, Max Frankel, Victor Kovner
Cardozo Law Review
No abstract provided.
A Reporter Keeping Confidences: More Important Than Ever, David Rudenstine
A Reporter Keeping Confidences: More Important Than Ever, David Rudenstine
Cardozo Law Review
No abstract provided.
Crime, Legitimacy, And Testilying, Bennett Capers
Crime, Legitimacy, And Testilying, Bennett Capers
Faculty Scholarship
No abstract provided.
Presumptions, Inferences, And Strict Liability In Illinois Criminal Law: Preempting The Presumption Of Innocence?, 41 J. Marshall L. Rev. 715 (2008), Theodore A. Gottfried, Peter G. Baroni
Presumptions, Inferences, And Strict Liability In Illinois Criminal Law: Preempting The Presumption Of Innocence?, 41 J. Marshall L. Rev. 715 (2008), Theodore A. Gottfried, Peter G. Baroni
UIC Law Review
No abstract provided.
The Clear Initiative And Mental States: 1½ Problems Solved, 41 J. Marshall L. Rev. 701 (2008), Timothy P. O'Neill
The Clear Initiative And Mental States: 1½ Problems Solved, 41 J. Marshall L. Rev. 701 (2008), Timothy P. O'Neill
UIC Law Review
No abstract provided.
"I'D Grab At Anything. And I'D Forget." Domestic Violence Victim Testimony After Davis V. Washington, 41 J. Marshall L. Rev. 937 (2008), Nancee Alexa Barth
"I'D Grab At Anything. And I'D Forget." Domestic Violence Victim Testimony After Davis V. Washington, 41 J. Marshall L. Rev. 937 (2008), Nancee Alexa Barth
UIC Law Review
No abstract provided.
Nontestimonial Declarations Against Penal Interest: Eschewing The Corroboration Requirement For Inculpatory Statements, 41 J. Marshall L. Rev. 969 (2008), Michael Duffy
UIC Law Review
No abstract provided.
Always Be Disclosing: The Prosecutor's Constitutional Duty To Divulge Inadmissible Evidence, Brian D. Ginsberg
Always Be Disclosing: The Prosecutor's Constitutional Duty To Divulge Inadmissible Evidence, Brian D. Ginsberg
West Virginia Law Review
No abstract provided.
The Constable Blunders But Isnt Punished Does Hudson V Michigans Abolition Of The Exclusionary Rule Extend Beyond Knockandannounce Violations, Mark A. Summers
The Constable Blunders But Isnt Punished Does Hudson V Michigans Abolition Of The Exclusionary Rule Extend Beyond Knockandannounce Violations, Mark A. Summers
Faculty Scholarship
No abstract provided.
Commenting On Credibility In Kansas: A Constructive Criticism Of State V. Pabst, Steve Leben
Commenting On Credibility In Kansas: A Constructive Criticism Of State V. Pabst, Steve Leben
Faculty Works
In some respects, this is a cautionary tale about overruling precedent. The Kansas Supreme Court openly overruled its own thirty-two year old precedent in deciding State v. Pabst in 2000. Cautionary tales and precedents aside, this Article is primarily about how trials are conducted, and how much latitude an attorney should have in Kansas to talk directly to jurors in closing argument about all the issues-including witness credibility-that will decide the case. Pabst forced attorneys to change the way they conduct closing arguments. While the result in Pabst was right, the rationale the court used to support the decision was …
Acknowledging Guilt: Forcing Self-Identification In Post-Conviction Dna Testing, Tonja Jacobi, Gwendolyn Carroll
Acknowledging Guilt: Forcing Self-Identification In Post-Conviction Dna Testing, Tonja Jacobi, Gwendolyn Carroll
Faculty Articles
This Essay formally illustrates how it is possible to force prisoners to self-identify as innocent or guilty by deciding whether to seek postconviction DNA testing. Additionally, it shows why other systems that aim to reduce the number of guilty petitioners seeking post-conviction DNA testing create perverse incentives, and why only additional incarceration can effectively encourage innocent and guilty prisoners alike to self-identify. This will reduce costs on the judicial system by discouraging guilty prisoners from seeking post-conviction DNA tests. It will also make it faster and easier for actually innocent prisoners to seek the tests they need for timely exoneration. …
Section 1983 Civil Rights Litigation From The October 2006 Term, Martin Schwartz
Section 1983 Civil Rights Litigation From The October 2006 Term, Martin Schwartz
Touro Law Review
No abstract provided.