Criminal Procedure Commons^™

The Psychology Of A Favor: Why Hidden Witness Payments Demand A New Brady Rule, Adam M. Gershowitz

Faculty Publications

Prosecutors and the police regularly pay informants and other witnesses in criminal cases. These payments can be in the form of rewards, relocation expenses, crime victims funds, and even simple cash. Although witness payments are legal, prosecutors are supposed to disclose them under the Brady doctrine because they are favorable evidence that the defense could use to impeach the witness. Yet prosecutors often fail to disclose witness payments because of communication failures with the police, poor training, excessive caseloads, and occasional ethical lapses.

This Article examines dozens of hidden witness payments that prosecutors failed to disclose. In nearly eighty percent …

(Re)Individualizing Criminal Law, Itay Ravid

Faculty Publications

Criminal law purports to care about the individual culpability of those committing crimes. Individual mental states or defenses based on one’s beliefs are considered foundational to moral responsibility and criminal conviction. The expansion of algorithmic risk assessment tools in the criminal legal system, however, threatens these principles, changing the criminal law subject from an autonomous individual to merely a predicted object. This Article argues that risk assessment tools—now functioning as gatekeepers at both the entry and exit stages of the criminal process, from predictive policing to compassionate release eligibility—have shifted the criminal system away from its foundation in individual culpability. …

The Specter Of Jury Nullification, Anna Offit

Faculty Publications

Attention to the trial of Luigi Mangione has renewed debate about nullification—the jury’s inviolate power to acquit a defendant contrary to the evidence presented. Jury nullification proponents hold that it is a mechanism of last resort for refusing to apply laws that conflict with the public conscience. Opponents, by contrast, argue that nullification undermines the law by diminishing its legitimacy. To prosecutors and defense attorneys, however, these arguments are immaterial: Jury nullification is part of the institutional landscape of the contemporary jury trial and thus must be treated as a potentiality—a feature of the agnostic, strategic, and ethical terrain of …

Rethinking Juror Impartiality, Anna Offit

Faculty Publications

Jury impartiality in the contemporary court often justifies the perpetuation of exclusionary selection practices that make juries more—not less—biased. This Article calls for a rethinking of this important but flawed concept. Constitutional interpretations and conceptions of “impartiality” frame it as a transient orientation toward particular evidence or parties. Yet, during voir dire, the prevailing conception of jury impartiality is that it is an immutable character trait that must be discovered—if not created—by professional legal actors. What voir dire creates is not an impartial jury, but precisely the opposite: a venire shaped by the strategic biases of lawyers.

This Article offers …

Appendix: Selected Quotes From Prosecutors' Interview Responses, Anna Arons

Faculty Publications

No abstract provided.

Accidental Brady Violations, Adam M. Gershowitz

Faculty Publications

Prosecutors are often seen as the villains of the criminal justice system. And the most villainous thing a prosecutor can do is to commit an intentional Brady violation by withholding favorable and material evidence from the defense. Not surprisingly, there is a wide literature criticizing prosecutors for flagrant misconduct.

But not all Brady violations are intentional. Prosecutors sometimes—perhaps often—commit accidental Brady violations by inadvertently failing to recognize favorable evidence. Because many prosecutors are inexperienced, overworked, and under-trained, they do not recognize exculpatory or impeachment evidence when it is in their files. Additionally, prosecutors also fail to disclose evidence that is …

The Prosecutor Vacancy Crisis, Adam M. Gershowitz

Faculty Publications

There is a prosecutor vacancy crisis in the United States. Prosecutors are quitting in droves and there are few applicants to replace them. In Houston and Los Angeles, more than 15% of prosecutor positions are open. In Detroit, the vacancy rate exceeds 20%. In Alameda, 25% of prosecutor positions are empty. And in Miami, a staggering 33% of prosecutor positions are unfilled. The situation is equally dire in many large and small counties across the nation.

Drawing on data and interviews from more than two-dozen district attorney’s offices, this Article documents how low salaries, massive caseloads, lack of remote work …

The Elephant In The Dark Room: A Response To Fair Notice, The Rule Of Law And Reforming Qualified Immunity, Teressa E. Ravenell

Faculty Publications

In response to Professor Chapman’s Fair Notice, the Rule of Law, and Reforming Qualified Immunity, this article examines the viability of Chapman’s proposal to reform qualified immunity by focusing on the “fair notice” rationale. Chapman argues that government officials should not be shielded from liability in cases where they acted in bad faith, violated criminal laws, or engaged in conduct malum in se. This article explores whether such a proposal could meaningfully alter qualified immunity litigation and concludes that significant procedural and historical barriers make this reform unlikely to succeed.

The Voice Of Criminal Law, Michelle Madden Dempsey

Faculty Publications

In whose voice does the criminal law speak, and why does it matter? Miriam Gur-Arye argues that the answer to the first question depends on the kind of duty violated by the crime at issue. In some cases (say, election fraud or tax evasion), the criminal law speaks in the voice of the polity—but in other cases (say, murder or rape), it speaks in the voice of human beings. Or so argues Gur-Ayre. Not surprisingly, perhaps, a lot depends on what one means by the voice of the criminal law. In this paper, I defend two related arguments. First, the …

The Needless Search For A Founding-Era "Hearsay" Definition, Jeffrey Bellin

Faculty Publications

Modern Confrontation Clause doctrine permits only unconfronted “out-of-court statements that would have been admissible in a criminal case at the time of the founding.” To operationalize this concept, the Supreme Court identifies “testimonial hearsay” as the Clause’s primary concern. Its opinions regularly dive into the historical record to refine what counts as “testimonial” but ignore that record in defining “hearsay.” This omission cannot last. Cases in the lower courts, and one on the Court’s recent docket, concern testimonial but (arguably) non-hearsay statements. And while confrontation jurisprudence is supposed to be tied to founding-era evidence law, the “hearsay” definition, casually referenced …

Murder On The Hearsay Trail, Jeffrey Bellin

Faculty Publications

Judges, lawyers, and law students struggle to apply American evidence law’s most distinctive feature—the hearsay prohibition. The problem is that hearsay is difficult to master and somewhat dull. At the same time, hearsay evidence is ubiquitous and important. Every litigator has a story about a judge’s eccentric hearsay rulings; mine is the trial judge who waved his hand dismissively at hearsay objections, letting witnesses answer on the grounds that “I want to hear it.” And the case law is littered with appellate opinions scolding trial judges for erroneous hearsay rulings while introducing errors of their own.

That is just the …

Eliminating Rule 609 To Provide A Fair Opportunity To Defend Against Criminal Charges: A Proposal To The Advisory Committee On The Federal Rules Of Evidence, Jeffrey Bellin

Faculty Publications

Federal Rule of Evidence 609 authorizes the admission of prior convictions to impeach criminal defendants who testify. And in this important and uniquely damaging application, the [r]ule’s logic fails, distorting American trials and depriving defendants of a fair opportunity to defend against the charges. The Advisory Committee [on Evidence Rules (the “Advisory Committee”)] should propose the elimination of Rule 609 and prohibit cross-examination with specific instances of a criminal defendant’s past conduct when those instances are unrelated to the defendant’s testimony and unconnected to the case.

This short essay begins by setting out the proposed rule change alongside a proposed …

The Brady Database, Brandon L. Garrett, Adam M. Gershowitz, Jennifer Teitcher

Faculty Publications

The Supreme Court’s landmark ruling in Brady v. Maryland turns sixty this year. The Brady doctrine, which requires the government to disclose favorable and material evidence to the defendant, is one of the most frequently litigated criminal procedure issues. Yet, despite decades of Brady cases in federal and state courts, we still know relatively little about how Brady claims are litigated, adjudicated, and what such claims can tell us about the criminal justice system writ large. Scholars are in the dark about how often Brady violations occur, whether it is primarily the fault of prosecutors or the police, whether violations …

Criminal Courteaucracy, Evelyn Malavé

Faculty Publications

Scholars have increasingly recognized that criminal courts in the age of mass incarceration, particularly lower criminal courts, have effectively shifted from an adjudicatory system of justice to a managerial system of justice. Rather than adjudicating guilt or innocence, criminal courts are engaged in risk management and social control. However, literature on criminal courts has almost exclusively focused on judges, prosecutors, and defense attorneys, and their roles in the adjudication of criminal cases. This Article will focus instead on the managerial function of criminal courts by shining a spotlight on a less-scrutinized set of actors: criminal-court administrators.

Through an in-depth case …

Principles Of Prosecutor Lenience, Jeffrey Bellin

Faculty Publications

[T]here are profound questions about the when and why of lenience, and particularly prosecutor lenience. The answers speak to one of the great mysteries of American criminal law: the role of the prosecutor. I have taken on this mystery in recent years and continue the effort here by offering a skeletal framework for prosecutor leniency. The framework proposes three principles of prosecutor lenience. Prosecutor lenience should be (1) non-arbitrary, (2) equal, and (3) abundant.

[...]

This Symposium Essay explores prosecutorial lenience through the lens set out above. Part I defines prosecutorial lenience and proposes three principles to guide its exercise. …

Ai-Based Evidence In Criminal Trials?, Sabine Gless, Fredric I. Lederer, Thomas Weigend

Faculty Publications

Smart devices are increasingly the origin of critical criminal case data. The importance of such data, especially data generated when using modern automobiles, is likely to become even more important as increasingly complex methods of machine learning lead to AI-based evidence being autonomously generated by devices. This article reviews the admissibility of such evidence from both American and German perspectives. As a result of this comparative approach, the authors conclude that American evidence law could be improved by borrowing aspects of the expert testimony approaches used in Germany’s “inquisitorial” court system.

Can Judges Help Ease Mass Incarceration?, Jeffrey Bellin

Faculty Publications

A scholar considers how judges have contributed to historically high incarceration rates -- and how they can help reverse the trend.

Mercy For The Masses: A Default Rule For Automatically Triggered Commutations, Adam Gershowitz

Faculty Publications

This Essay considers how governors who are interested in reducing mass imprisonment can provide “mercy for the masses” who are in the middle of the criminal justice punishment spectrum. It draws on the successful mass pardons for misdemeanor marijuana offenses, as well as the aspects of the Obama Clemency Initiative that worked well. The proposals that follow offer four variations on a default rule for automatic, but modest, mass commutations.

[...]

This Essay proceeds as follows. First, Part I explains how the modern clemency power has often been focused on death penalty cases and low-level misdemeanors. Part II then recounts …

Reimagining The Inclusive Jury, Anna Offit

Faculty Publications

At the height of the COVID-19 pandemic, everyday life for many Americans was upended. And yet, the jury trial remained viable — even vital. Faced with an era-defining public health disaster, courts innovated, embracing novel technologies and techniques to reimagine where and how justice might be made. But why did it take a pandemic to spur this kind of institutional creativity? Prior to the outbreak of COVID-19, people who were otherwise eligible to participate as jurors were routinely — and uncontroversially — struck or exempted from service due to limited mobility, vision and hearing loss, and caregiving responsibilities. Recent experience …

Laundering Police Lies, Adam Gershowitz, Caroline E. Lewis

Faculty Publications

Police officers—like ordinary people—are regularly dishonest. Officers lie under oath (testilying), on police reports (reportilying), and in a myriad of other situations. Despite decades of evidence about police lies, the U.S. Supreme Court regularly believes police stories that are utterly implausible. Either because the Court is gullible, willfully blind, or complicit, the justices have simply rubber-stamped police lies in numerous high-profile cases. For instance, the Court has accepted police claims that a suspect had bags of cocaine displayed in his lap at the end of a police chase (Whren v. United States), that officers saw marijuana through a …

Criminal Justice Reform And The Centrality Of Intent, Cynthia V. Ward

Faculty Publications

The nationwide movement for criminal justice reform has produced numerous proposals to amend procedural and sentencing practices in the American criminal justice system. These include plans to abolish mandatory minimum schemes in criminal sentencing; address discrimination in charging, convicting, and sentencing; reform drug policy; rectify discriminatory policies and practices in policing; assist incarcerated individuals in re-entering society when released from prison; and reorganize our system of juvenile justice. But less attention has been given to reforming the substantive content of the criminal law—specifically, to addressing flaws in how the law defines the elements of criminal culpability and deploys them in …

Plea Bargaining's Uncertainty Problem, Jeffrey Bellin

Faculty Publications

While commentators roundly condemn plea bargaining, the criticism can be as muddled as the practice itself. Critics’ primary target is the “trial penalty.” But a differential between guilty-plea and trial sentences seems inevitable in any system that allows defendants to concede guilt. And, as a new wave of “progressive prosecutors” is demonstrating, gaps between (unusually lenient) plea offers and long (potential) post-trial sentences are not only a strong incentive to plead guilty but also a powerful tool for reducing American penal severity. Other critiques point to flaws that parallel those found in the broader system, overlooking that plea bargaining is …

Judge Frankel’S Fifty-Year-Old Invitation To Reconstruct Sentencing, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

America was a different place at the time Judge Marvin Frankel penned his now-famous text Criminal Sentences: Law without Order in 1973. Richard Nixon was the U.S. president. The Vietnam War was ending. The Watergate scandal was unfolding. There was much to grab the public’s attention, and criminal sentencing was not a national or international headline. Just two years earlier, President Nixon had declared a war on drugs and targeted drug abuse as “public enemy number one,” but it would be over a decade before punitive mandatory minimum drug sentences would become our sentencing norm. At the time of …

Plea Bargains: Efficient Or Unjust?, Jeffrey Bellin, Erin Blondel, John Flynn, Elana Fogel, Anjelica Hendricks, Carissa Byrne Hessick

Faculty Publications

The vast majority of state and federal cases end in plea bargains. The practice has eased backlogs and may benefit some defendants — but the trade-offs, some say, are too steep. Is there a better way?

Religious Convictions, Anna Offit

Faculty Publications

The Anglo-American jury emerged at a time when legal and religious conceptions of justice were entwined. Today, however, though the American public remains comparatively religious, the country’s legal system draws a distinction between legal and religious modes of determining culpability and passing judgment. This Article examines the doctrine that governs the place of religious belief and practice in U.S. jury selection proceedings. It argues that the discretion afforded to judges with respect to applying the Batson antidiscrimination doctrine has given these beliefs and practices an ambiguous status. On the one hand, judges aim to protect prospective religious jurors from discrimination. …

A World Without Prosecutors, Jeffrey Bellin

Faculty Publications

Bennett Capers’ article Against Prosecutors challenges us to imagine a world where we “turn away from prosecution as we know it,” and shift “power from prosecutors to the people they purport to represent.”

[...]

Capers joins a long line of authors seeking to attack mass incarceration by reducing the role of prosecutors. I agree with these authors that we should dramatically shrink the footprint of American criminal law and ending the war on drugs is a good place to start. But while Capers styles his proposal as a “[r]adical change,” I find the focus on prosecutors in this context decidedly …

The Myth Of The All-Powerful Federal Prosecutor At Sentencing, Adam M. Gershowitz

Faculty Publications

Relying on a dataset I assembled of 130 doctors prosecuted for illegal opioid distribution between 2015 and 2019, this Article shows that judges rejected federal prosecutors’ sentencing recommendations over two-thirds of the time. Put differently, prosecutors lost much more often than they prevailed at sentencing. And judges often rejected the prosecutors’ sentencing positions by dramatic margins. In 23% of cases, judges imposed a sentence that was half or even less than half of what prosecutors recommended. In 45% of cases, judges imposed a sentence that was at least one-third lower than what prosecutors requested. In short, prosecutors lost most of …

The Appellate Judge As The Thirteenth Juror: Combating Implicit Bias In Criminal Convictions, Andrew S. Pollis

Faculty Publications

Research has documented the effect that implicit bias plays in the disproportionately high wrongful-conviction rate for people of color. This Article proposes a novel solution to the problem: empowering individual appellate judges, even over the dissent of two colleagues, to send cases back for retrial when the trial record raises suspicions of a conviction tainted by the operation of implicit racial bias.

Factual review on appeal is unwelcome in most jurisdictions. But the traditional arguments against it, which highlight the importance of deference to the jury’s fact-finding powers, are overly simplistic. Scholars have already demonstrated the relative institutional competency of …

Where Black Lives Matter Less: Understanding The Impact Of Black Victims On Sentencing Outcomes In Texas Capital Murder Cases From 1973 To 2018, Jelani Jefferson Exum, David Niven

Faculty Publications

The systemic disregard for Black lives in America was on full display when footage of a police officer kneeling on the neck of George Floyd went viral. Mr. Floyd’s resultant death set off protests declaring that Black Lives Matter throughout the nation and across the world. While national attention rightfully turned to demanding police accountability for undue violence, the prevailing conversation also incorporated at least a declared concern for addressing institutionalized racism within the criminal justice system and other American institutions. The term of the day became “antiracism.” With regard to police killings, the lesson is that police officers disproportionately …

The Character Of Jury Exclusion, Anna Offit

Faculty Publications

Encounters with the legal system are unevenly distributed throughout the American population, with Black and poor citizens targeted as disparate subjects of surveillance, arrest, and criminal conviction. At the same time, these encounters, as well as a stated belief in the unfairness of the legal system, are commonly viewed as legitimate grounds for excusal from jury service. This follows from an understanding of juror bias that assumes that people with negative experiences with legal actors—police and prosecutors, for example—will be less likely to trust and more likely to discount the contributions of those actors within the context of the jury …