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Articles 1 - 6 of 6
Full-Text Articles in Social and Behavioral Sciences
Perfecting Issue Preservation, Daniel Epps
Perfecting Issue Preservation, Daniel Epps
Scholarship@WashULaw
In his article, “Does It Matter Who Objects? Rethinking the Burden to Prevent Errors in Criminal Process,” Darryl Brown challenges the venerable rule that a defendant must preserve objections to erroneous rulings at trial in order to perfect them for later appeal. Brown ably convinced me that conventional wisdom about who should bear the burden of bringing errors to a court’s attention is woefully under-theorized. In particular, Brown’s move to analyze adjudicative error from the perspective of accident prevention in other legal contexts is both clever and generative of insights. Moreover, Brown made a persuasive case that normative judgments about …
The Defender General, Daniel Epps, William Ortman
The Defender General, Daniel Epps, William Ortman
Scholarship@WashULaw
The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate …
Police Violence And The African-American Procedural Habitus, Trevor George Gardner
Police Violence And The African-American Procedural Habitus, Trevor George Gardner
Scholarship@WashULaw
How should an African American respond to a race-based police stop? What approach, disposition, or tactic will minimize his risk within the context of the police stop of being subject to police violence? This Essay advances a conversation among criminal procedural theorists about citizen agency within the field of police-administered criminal procedure, highlighting “The Talk” that parents have with their African American children regarding how to respond to police seizure. It argues that the most prominent version of The Talk—the one in which parents call for absolute deference to police authority in the event of a police stop—may be as …
The Right Approach To Harmless Error, Daniel Epps
The Right Approach To Harmless Error, Daniel Epps
Scholarship@WashULaw
My article “Harmless Errors and Substantial Rights” challenged conventional wisdom about the harmless constitutional error doctrine in criminal procedure. Specifically, I contended that the traditional way of understanding harmless error as a remedial doctrine rooted in so-called “constitutional common law” created significant anomalies. Instead, harmless constitutional error doctrine can only be understood as part of the definition and judicial enforcement of constitutional rights.
Few legal scholars have thought as deeply about the mysteries of harmless error as Professor John M. Greabe, and he is well equipped to give the remedial perspective the best possible defense. Nonetheless, despite Professor Greabe’s able …
What Would Mlk Do?: A Civil Rights Model Of “Good Citizenship” In Criminal Procedure, Trevor George Gardner
What Would Mlk Do?: A Civil Rights Model Of “Good Citizenship” In Criminal Procedure, Trevor George Gardner
Scholarship@WashULaw
Good citizenship and eager participation in police investigations would seem to fit hand-in-glove. The good citizen helps to enforce the criminal law, particularly if the physical safety of the citizenry is thought to be at risk. But as Bennett Capers argues in his essay, Criminal Procedure and the Good Citizen, this version of the good citizen—crafted and propagated by our nation’s highest court—falls into direct tension with the activist principles animating the Civil Rights Movement. For instance, Martin Luther King, Jr., insisted that the citizen not suffer from a cultural condition Capers describes as “too much respect for majoritarian …
Criminal Law In Crisis, Benjamin Levin
Criminal Law In Crisis, Benjamin Levin
Scholarship@WashULaw
In this Essay, I offer a brief account of how the COVID-19 pandemic lays bare the realities and structural flaws of the carceral state. I provide two primary examples or illustrations, but they are not meant to serve as an exhaustive list. Rather, by highlighting these issues, problems, or (perhaps) features, I mean to suggest that this moment of crisis should serve not just as an opportunity to marshal resources to address the pandemic, but also as a chance to address the harsh realities of the U.S. criminal system. Further, my claim isn’t that criminal law is in some way …