Criminal Procedure Commons^™

The Visible Trial: Judicial Assessment As Adjudication, Tracey E. George, Albert H. Yoon

University of Colorado Law Review

Only a small fraction of lawsuits ends in trial—a phenomenon termed the “vanishing trial.” Critics of the declining trial rate see a remote, increasingly regressive judicial system. Defenders see a system that allows parties to resolve disputes independently. Analyzing criminal and civil filings in federal district court for the forty-year period from 1980 to 2019, we confirm a steady decline in the absolute and relative number of trials. We find, however, this emphasis on trial rate obscures courts’ vital role and ignores parties’ goals. Judges adjudicate disputes directly by ruling or effectively through other assessments of the parties’ cases. Even …

Taking The Knee No More: Police Accountability And The Structure Of Racism, David Dante Troutt

Washington and Lee Law Review

From before the birth of the republic to the present day, police brutality has represented a signature injustice of state authority, especially against African Americans. Defining that injustice is the lack of accountability for official misconduct. The rule of law has systematically failed to deter lawbreaking by its law enforcement departments. This Article explores the various legal and institutional means by which accountability should be imposed and demonstrates the design elements of structured immunity. Using Critical Race Theory and traditional civil rights law notions of how structural racism operates, this Article argues that transformative change can only come about through …

The Prosecutor Lobby, Carissa Byrne Hessick, Ronald F. Wright, Jessica Pishko

Washington and Lee Law Review

Prosecutors shape the use of the criminal law at many points during criminal proceedings but there is an earlier point in the process where prosecutors have influence: during the legislative process. The conventional wisdom in legal scholarship is that prosecutors are powerful and successful lobbyists who routinely support laws that make the criminal law more punitive and oppose criminal justice reform. In this Article, we test that narrative with an empirical assessment of prosecutor lobbying in America. Using an original dataset of four years of legislative activity from all fifty states, we analyze how frequently prosecutors lobbied, the issues on …

The Perverse Carrot: How Extreme Economic Precarity Is Exploited Through Witness Perks, Roxann Matthews

University of San Francisco Law Review

No abstract provided.

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 …

Nestlé V. Doe: A Death Knell To Corporate Human Rights Accountability?, Phillip Ayers

Seattle University Law Review

The Supreme Court in Nestlé v. Doe held that foreign plaintiffs who claimed to be victims of overseas tortious conduct by corporate defendants had no jurisdiction to sue in federal courts using the Alien Tort Statute. This Comment looks at the history of the Alien Tort Statute, from its inspiration, long dormancy, and recent reinvigoration beginning in the 1980s. The Comment then explores the background of Nestlé and its issues with child slavery in its cocoa supply chain. From there, the Comment analyzes the Nestlé v. Doe decision, and posits an alternative outcome. Finally, this Comment looks for a new …

Book Review, Kirsten Campbell, The Justice Of Humans: Subject, Society And Sexual Violence In International Criminal Justice (2022), Shannon Fyfe

Scholarly Articles

In The Justice of Humans: Subject, Society and Sexual Violence in International Criminal Justice, Kirsten Campbell sets out to analyze approaches to international justice for victims of mass violence through a feminist lens. Using a remarkable breadth of disciplines, Campbell develops a “feminist social theory of the existing legal and feminist forms of international justice and a socio-legal methodology for empirically investigating them” (p. 4). She draws on her own extensive experience with the conflict in the former Yugoslavia to consider two responses to conflict-related sexual violence there: the International Criminal Tribunal for the former Yugoslavia (ICTY) and the …

Role-Reversibility, Ai, And Equitable Justice — Or: Why Mercy Cannot Be Automated, Stephen E. Henderson, Kiel Brennan-Marquez

Faculty Articles

A few years ago, we developed the concept of “role-reversibility” in AI governance: the idea that it matters whether a party exercising judgment is reciprocally vulnerable to the effects of judgment. This idea, we argued, supplies a deontic reason to maintain certain spheres of human judgment even if (or when) truly intelligent machines become demonstrably superior in every utilitarian sense. While computer science remains far from that holy grail, generative AI is raging through systems as diverse as healthcare, finance, advertising, law, and academe, making it imperative to further shore up our claim. We do so by situating role-reversibility within …

State V. Hudgen¸ 272 A.3d 1069 (R.I. 2022)., Judd W. Krasher

Roger Williams University Law Review

No abstract provided.

State V. Briggs, 263 A.3d 739 (R.I. 2021), Jonte' Mckenzie

Roger Williams University Law Review

No abstract provided.

Sentencing In An Era Of Plea Bargains, Jeffrey Bellin, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The literature offers inconsistent answers to a question that is foundational to criminal law: Who imposes sentences? Traditional narratives place sentencing responsibility in the hands of the judge. Yet, in a country where 95 percent of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors – who control plea terms – as the decider of punishment. This Article highlights and seeks to resolve the tension between these conflicting narratives by charting the pathways by which sentences are determined in a system dominated by plea bargains.

After reviewing the empirical literature on sentence variation, state and federal …

The Incongruence Principle Of Evidence, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

Evidence law assumes that the meaning and value of information at trial is equal to the meaning and value of the same information in the real world. This premise underlies evidence policy, judicial applications of evidence law, and instructions to jurors for evaluating evidence. However, it is incorrect, and the law’s failure to recognize this hinders its aims of accuracy and equality.

In this article, I draw on fields outside of law - including Bayesian inference and cognitive psychology - to develop a model of evidence that describes how jurors combine new evidence with prior beliefs (or “priors”) to make …

Understanding Criminal Justice Innovations, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Burgeoning science and technology have provided the criminal justice system with the opportunity to address some of its shortcomings. And the criminal justice system has significant shortcomings. Among other issues, we have a mass incarceration problem; clearance rates are surprisingly low; there are serious concerns about wrongful convictions; and the system is layered with racial, religious, and other biases. Innovations that are widely used across industries, as well as those directed specifically at the criminal justice system, have the potential to improve upon such problems. But it is important to recognize that these innovations also have downsides, and criminal justice …

Criminal Terms, Anna Roberts

Faculty Scholarship

No abstract provided.

Table Of Contents, Public Interest Law Reporter

Public Interest Law Reporter

No abstract provided.

The Last Stand For Union Power, Laura Christensen Garcia, Danya Moodabagil

Public Interest Law Reporter

No abstract provided.

An Examination Into The Physical And Sexual Abuse Of Children In Juvenile Detention Centers, Claudia Cornejo

Public Interest Law Reporter

No abstract provided.

Chicago's War On Crime, Madison Flores

Public Interest Law Reporter

About one in five U.S. adults say they or someone close to them has had a personal experience with gun violence.¹ Seventy-one percent of Americans also believe gun laws should be stricter.² Most people favor a federal law preventing people with mental illnesses from purchasing guns and a smaller percentage favor a nationwide ban on semi-automatic weapons.³ The debate is not so simply divided between those who want to ban all guns and those who want no restrictions on guns. Rather, many Americans value both preventing gun violence and protecting gun rights.⁴

To understand the atmosphere …

Sanctioned Abuse: Corporal Punishment, Restraint And Seclusion Of Children In Public Schools, Jasper Gingrich

Public Interest Law Reporter

No abstract provided.

Affirmative Action In Jeopardy, Natalie Jakubowski

Public Interest Law Reporter

Forty-five years ago, the United States Supreme Court decided the landmark case Regents of the University of California v. Bakke ("Bakke"), which confirmed the constitutionality of race as a factor for consideration in college admissions, otherwise known as affirmative action.¹ Since then, colleges have considered race as an additional "plus factor" in their admissions processes and have immensely increased the percentage of minority enrollment in colleges. However, the Supreme Court will hear two cases in 2023: Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. …

A Brief Introduction To The Legal Response To Childhood Fatalities And Injuries On Family Farms, Madeline Krolczyk

Public Interest Law Reporter

No abstract provided.

Punishing Poverty: The Inequalities Of Cash Bail And The Move Towards Reform, Emily L. Salamone

Public Interest Law Reporter

No abstract provided.

Felony Disenfranchisement: A Barrier To True Democracy, Anna Baish

Public Interest Law Reporter

No abstract provided.

Beneath The Welfare Façade, Anna Bowser

Public Interest Law Reporter

No abstract provided.

Name, Image, And Likeness In Ncaa College Athletics, Marlee Burridge

Public Interest Law Reporter

No abstract provided.

Barricading The Ballot Box: How Legislative Changes To Ballot Referendums Threaten America's Tradition Of Direct Democracy, Tripp Frank

Public Interest Law Reporter

No abstract provided.

Safeguarding Sanctuary: The Growing Pains Of A Sanctuary City, Iris Gomez

Public Interest Law Reporter

No abstract provided.

Where The Fourth Amendment Fails: The Loophole Of No-Knock Warrants And The Devastating Community Safety Consquences, Grace Hague

Public Interest Law Reporter

No abstract provided.

Out Of Sight, Out Of Mind: Banning The Unhoused From Chicago's Public Spaces, Alex Kirchner

Public Interest Law Reporter

No abstract provided.

Scotus On "Wotus", Will Matushek

Public Interest Law Reporter

No abstract provided.