The Journal of Criminal Law and Criminology (1973-)

Published by University of Illinois Press
Online ISSN: 0091-4169
Publications
Article
Part of this article reports original research conducted under the direction of the second and third authors. The initial re search was supported by a contract to Indiana University from General Motors Research Laboratories. The specific analyses of voice recordings of Captain Joseph Hazelwood were conducted by them at the re quest of the National Transportation Safety Board, and are based on tapes and data supplied by the NTSB. The second author may be called as a witness in some of the lawsuits pending against the Exxon Corporation. The opinions expressed in this article concerning whether this evidence meets the legal standards of reliability and admissibility are those of the first author, who is not affiliated with the Speech Research Laboratory and has not participated in either the initial research nor the analysis of the Exxon Valdez tapes.
 
Article
In an effort to cut costs, many state and county incarceration facilities have turned to private managed health care organizations to provide health care for their prisoners. Despite --or, perhaps, because of--the money saved by the government and the money made by managed care organizations, the level of health care in these facilities has decreased, and prisoner complaints and lawsuits are on the rise. Private managed health care in prisons has resulted in inmate injuries and deaths, many of which have been and are being challenged on Eighth Amendment grounds. Constitutional violations in prison health care are determined under the deliberate indifference standard. The Supreme Court has held that government entities, or private companies carrying out governmental duties, can be held liable for systemic deliberate indifference violations where the entity promulgates an official custom or policy that violates prisoners? constitutional rights. Without question, some managed health care systems in prisons contain aspects that constitute an official custom or policy that violates prisoners' constitutional rights. Some aspects of managed care, particularly direct financial incentives to avoid treating inmates, constitute per se deliberate indifference. Courts should find that the implementation of these policies always fails constitutional muster. Other aspects of managed care create a rebuttable presumption that deliberate indifference exists. Measures to save money--such as cutting staff, hiring less qualified staff, and denying, delaying or providing inefficacious treatment--can give rise to a rebuttable presumption that deliberate indifference has occurred. Legislatures might consider banning private managed health care in prisons and jails. In the alternative, legislatures might consider enacting and departments of corrections might consider contracting for provisions that ensure the adequate treatment of inmates. Absent these alternatives, the use of managed health care in incarceration facilities, and the decreased level of care that comes along with it, should remain under the constant vigilance of federal and state courts, whose obligation it is to enforce the Constitution of the United States.
 
Article
Performance-enhancing substance use has attracted considerable political and media attention. However, relatively little analysis of the reasons for regulating substance use in professional sports exists. Most of the ostensible reasons for regulating performance-enhancing substance use are belied by leagues’ inadequate commitment to the justifications in other contexts. Further, most of the methods of proposed regulation would be ineffective and unworkable. In place of the standard test-and-punish regime advocated by doping authorities, this Essay argues that performance-enhancing substance policy should be modeled after federal and state securities regulation. Instead of punishing use, regulators should require disclosure of all substances used, and punish only omissions and fraud of a material nature. The goals of a regulation regime would be better achieved without unintended negative consequences through a market approach based on minimum disclosure requirements.
 
Article
This Article describes the vast population of children with incarcerated parents. The central argument reframes sentencing law and prison visitation policy through the lens of children’s rights, rather than the traditional frame of prisoners’ rights. It then suggests as a possible legal basis for children's right to a relationship with their convicted parents the First Amendment freedom of association and a due process liberty interest. The argument is developed through comparative analysis of current sentencing law and visitation policy in New York State and the federal system, as well as First Amendment doctrinal analysis. International law and practice illustrate that the status quo in the United States need not be the only approach.
 
Article
Describes the experiences of an interdisciplinary mental health team in assessing the effects of life in an inner-city Black community on children's and families' development. Case examples of the children and their families in child health stations, day care centers, diagnostic clinics, and therapeutic nurseries are presented, and the usefulness of depth psychology approaches to urban problems is demonstrated. (20 ref) (PsycINFO Database Record (c) 2012 APA, all rights reserved)
 
Chapter
Legal Enforcement of Moral Norms against Causing HarmLegal Requirements to Perform Acts That Benefit OthersRequirements to Refrain from Acts that Cause Indirect Harm to OthersRequirements to Refrain from Actions That Hurt OneselfRequirements to Refrain from Acts That Offend OthersRequirements to Refrain from Acts Others Believe Are ImmoralReferences
 
Article
Presents the findings of a year-long study of the problem of juvenile violence, based on interviews with more than 50 judges, lawyers, psychiatrists, and other professionals and analysis of 500 arrest records of juveniles in the New York City metropolitan region. (PsycINFO Database Record (c) 2012 APA, all rights reserved)
 
Article
Between 1910 and 1930, at least 391 women were intentionally killed by their husbands in Chicago. This is a relatively small subset of all the homicides in Chicago over this period, approximately 7297 in all. Nonetheless, it is clear that then, as now, homicide by an intimate partner was a leading cause of the premature death of women. This Article interrogates those 391 deaths for what they can tell us about marital disruption, domestic violence, and the lives of women in early-twentieth century America, and the extent to which they parallel or differ from the recent past. We discuss, among other things, the ethnicity, race, and age distribution of the victims, the apparent motivation for the murders, and the response of the criminal justice system-that is, the verdicts and/or sentences handed out, if any. To understand the implications of this data, we also explore the context in which these crimes occurred - the population changes, broader social and cultural trends that affected both the status of women and the institution of marriage, and the availability of reme­dies or services for victims of unhappy marriages, including the accessibility of both divorce and assistance for victims of domestic violence. From this examination, we draw a number of broader inferences about the continuing problem of marital violence, including wife murder, and society's response to it.
 
Article
The Bail Reform Act of 1984 lays out the rules and procedures for federal pretrial release and detention. In 2006, as part of the Adam Walsh Child Protection and Safety Act, Congress amended the Bail Reform Act. Before the Adam Walsh Act Amendments (AWA Amendments) were passed, a judicial officer decided whether to release a defendant, whether to impose pretrial release conditions, and what pretrial release conditions to impose on a case-by-case basis. The AWA Amendments, in contrast, impose mandatory pretrial release conditions, including electronic monitoring and curfew, on all defendants charged with certain enumerated sexual offenses against children. Many district courts have found mandatory imposition of pretrial release conditions unconstitutional and refuse to apply the AWA Amendments when setting bail. This Comment argues that Congress must repeal or revise the AWA Amendments to the Bail Reform Act of 1984 because they are unconstitutional under the Excessive Bail and Due Process Clauses, are completely inconsistent with the Bail Reform Act’s core principle of individualized judicial determination of bail, and come at a great cost to the defendant at little or no additional benefit to the public. This Comment proposes that the AWA Amendments be revised so that certain pretrial release conditions are imposed based on a rebuttable presumption instead of mandatorily, as in, a judge will impose them unless a defendant can rebut their imposition with evidence that the conditions are unnecessary to ensure the public’s safety. This proposed revision not only fulfills Congress’s original purpose of increased safety in enacting the AWA Amendments, but it is also constitutional and consistent with the rest of the Bail Reform Act. ,
 
Article
In this paper we use reported exonerations as a window on false convictions generally. We can't come close to estimating the number of false convictions that occur in the United States, but the accumulating mass of exonerations gives us a glimpse of what we're missing. We located 340 individual exonerations from 1989 through 2003, not counting at least 135 innocent defendants in at least two mass exonerations, and not counting more than 70 defendants convicted in a series of childcare sex abuse prosecutions, most of whom were probably innocent. Almost all the individual exonerations that we know about are clustered in the two most serious common felonies: rape and murder. They are surrounded by widening circles of categories of cases that include false convictions that are rarely detected, if ever: rape convictions that have not been reexamined with DNA evidence; robberies, for which DNA identification is useless; murder cases that are ignored because the defendants were not sentenced to death; assault and drug convictions that are forgotten entirely; misdemeanor convictions that aren't even part of the picture. Judging from our data, any plausible guess at the total number of miscarriages of justice in America in the last fifteen years must run to the thousands, perhaps tens of thousands, in felony cases alone. We can, however, see some clear patterns in those false convictions that have come to light. For rape the dominant problem is eyewitness misidentification - and cross-racial misidentification in particular, which accounts for the extraordinary number of exonerations in rape cases with black defendants and white victims. For murder, the leading cause of the false convictions we know about is perjury - including perjury by police officers, by jailhouse snitches, by the real killers, and by supposed participants and eyewitnesses to the crime who knew the innocent defendants in advance. False confessions also played a large role in the murder convictions that led to exonerations, primarily among two particularly vulnerable groups of innocent defendants: juveniles, and those who are mentally retarded or mentally ill. Almost all the juvenile exonerees who falsely confessed were African American. In fact, one of our more startling findings is that 90% of all exonerated juvenile defendants were black or Hispanic, an extreme disparity that, unfortunately, is of a piece with racial disparities in our juvenile justice system in general. Nearly a quarter of exonerated defendants had been sentenced to death, despite the fact that death row inmates make up only about one-quarter of one percent of the population American prisoners, and a much smaller proportion of the those who pass through our prisons over time. This appears to reflect two simultaneous patterns: capital defendants are more likely to be convicted in error, and false convictions are more likely to be detected when the defendants are on death row. That means that capital defendants who are not sentenced to death, or defendants in similar murder prosecutions in which the death penalty was not sought, may be in the worst position of all: they may suffer the same high risk of false conviction as death row inmates, but get no benefit from the comparatively high chance of exoneration after conviction.
 
Article
Current criminal justice domestic violence policies have been severely criticized by some feminist scholars as undermining victim autonomy. This criticism is puzzling given the fact that these policies were drafted in response to the activism of feminists involved in the early battered women's movement and that autonomy, or the agency of women, was a key goal of this movement. This apparent paradox can be explained, however, by the fact that activists involved in the early battered women's movement and actors in the current criminal justice regime speak in two different "languages." Thus, victim autonomy is a concept that got lost in the translation of some of the goals of the early battered women's movement into criminal justice policy. While this Article acknowledges that victim autonomy is not the chief goal of the criminal justice system, it still urges proponents of current criminal justice policies to take seriously the fact that a high number of victims currently do not want to engage with the criminal justice system. This number is an important metric in analyzing the effectiveness of domestic violence policies. First, it underscores the fact that improvements need to be made in victims' interactions with the criminal justice system and in the criminal justice system's response to those victims who do ask for help. Second, it highlights the fact that the criminal justice system is a limited tool in addressing what is a social, political, and economic problem. For this reason, a criminal justice solution should be part of broader domestic violence policies that address the complexity of this issue. The economic disparities that women experience as a class and the intersectionality of race, class, sexuality, and gender are important aspects of a broader approach to the domestic violence problem.
 
Article
This Article considers Federal Rules of Evidence 413-415, which govern admissibility of similar crimes evidence in sexual assault and child molestation cases in federal courts. Enacted by Congress in 1995 despite the objections of the Judicial Conference, the American Bar Association, and many legal scholars, and in contravention of the established process for promulgating rules of procedure and evidence set out in the Rules Enabling Act, these rules carve an exception out of the rule against the use of propensity evidence where the acts are sexual in nature. In the ten years that the rules have been in effect, the issue that has emerged is the proper scope of trial court discretion to exclude similar acts evidence in sexual assault cases under the general supervisory authority of Rule 403. The issue invites a broader consideration of which branch of government ought to have primacy in the area of evidence rulemaking. Recent years have seen a contraction in the scope of congressional delegation contained in the Rules Enabling Act. This Article considers the question of which branch should enjoy rulemaking preeminence from the perspective not of power, but of institutional competence, considering the nature and purpose of particular evidentiary rules rather than determining the question categorically. I conclude that the rules regarding similar acts involve interests that are fundamentally judicial rather than legislative, and that, accordingly, courts should implement a robust Rule 403 balancing inquiry when presented with similar acts evidence under Rules 413-415.
 
Article
This article offers a historical and comparative account of crimen falsi, or the crime of deceit -- tracing the development of this concept from the Roman lex Cornelia de Falsis of the first century B.C.E.; through Las Siete Partidas of twelfth century Spain; English common law; and, ultimately, to the American Federal Rules of Evidence. Under Roman and medieval Spanish law, the term crimen falsi referred to a broad category of specific offenses such as forgery and counterfeiting, perjury, false weights and measures, and fraud. To the modern mind, such classification is puzzling. Today, criminal law systems around the world almost invariably use classifications that reflect a concern with harmfulness (e.g., "crimes against the person," "crimes against property"). By contrast, the quite disparate offenses designated as crimen falsi seem linked less by the idea of harmfulness than by a common form of moral wrongfulness -- namely, deceit. As a category of substantive criminal law, crimen falsi has mostly disappeared. But the classification remains significant in evidence law, most notably under Federal Rule of Evidence 609(a)(2), which allows for impeachment of witnesses who have been convicted of a crime involving "dishonesty or false statement." The article suggests that several of the most significant controversies surrounding the interpretation of Rule 609(a)(2) can best be resolved through an appreciation of the common law substantive history of crimen falsi.
 
Article
The vast majority of jurisdictions in the United States allow the credibility of testifying defendants to be impeached with evidence of prior felony convictions. This past crime evidence is admitted solely to show that the defendant may lack credibility. It is not admitted to show that the defendant has a tendency to commit crimes in general or that he or she is a bad, dangerous person. Juries are given a limiting instruction that is supposed to prevent improper use of the evidence, but courts and legislatures acknowledge that despite limiting instructions, past crime evidence can illegitimately prejudice a jury against a defendant. For this reason, judges are required to compare the prejudicial effect of past crimes evidence to its probative value before it is admitted. If the evidence is even slightly more prejudicial than probative of credibility, it is to be excluded. Sex offense convictions are extraordinarily prejudicial-overwhelming evidence shows that sex offenders are the most feared and despised group in this country-and these convictions are not particularly probative of credibility. Yet judges rarely acknowledge this when comparing the probative value of past sex crime convictions to their prejudicial effect on jurors. This failure undermines evidentiary principles that are fundamental to our system of criminal justice. A defendant who previously was convicted of a sex offense is left with three bad choices: he or she can accept a plea bargain regardless of actual guilt; go to trial but decline to testify; or testify, but lose the jury's goodwill when the sex crime conviction is presented. An acquittal based on valid reasonable doubt becomes much less likely.
 
Article
This Comment is intended to enable advocates for pregnant women to challenge the impermissible and unconstitutional prosecutions of pregnant drug users for criminal child abuse and endangerment. The Comment surveys the history of such prosecutions, and considers the policy justifications for them, before turning to an analysis of the frameworks that state appellate and supreme courts have applied in holding that these prosecutions may not proceed under various state laws. In summarizing the various challenges that may be brought to criminal prosecutions of pregnant drug addicts, this Comment illuminates the tactics that have been successful in previous cases, and offers various notes for those challenging future prosecutions.
 
Article
The persistence of strict criminal liability for child sexual abuse is attributable, at least in part, to the shortcomings of the existing alternatives, namely, the recklessness and criminal negligence standards. These two standards require juries to define the acceptable level of risk on a case-by-case basis. Juries are ill-equipped to make this calculation in sexual abuse cases, however, and their efforts to do so almost invariably are skewed by evidence of the victim’s unchastity. This Article first explores the shortcomings of the recklessness and criminal negligence standards in this setting, and then attempts to develop a viable alternative. Under the proposed alternative, the legislature, not the jury, would define the acceptable risk of sexual imposition. It would calculate this invariant probability threshold in much the same way that juries calculate the acceptable risk in recklessness and criminal negligence cases – by assigning values to the gravity of the potential harm and to the social utility of the conduct. Under this scheme, the jury would be responsible only for deciding whether the risk of sexual imposition exceeded this invariant probability threshold in the defendant’s case.
 
Article
It can be useful to think of law as a standard, around which we construct parameters of acceptable deviance (PADs). Behavior that occurs within PADs usually is not sanctioned, despite its illegality; behavior that occurs outside PADs is often sanctioned, regardless of its legality. This article examines the construction of PADs arguing that they are the product of continuous interplay between formal law and the normative sensibilities of the regulated and their regulators. The article then attempts to explain why institutions of regulation and enforcement cannot formally acknowledge PADs without altering them. Finally, it demonstrates the explanatory power of PADs applied to a range of otherwise puzzling or bedeviling legal phenomena, such as racial profiling, jury nullification, and even the Supreme Court's controversial decision in Bush v. Gore.
 
Article
This Article considers what can be learned about humanizing the modern American prison from studying a small and unorthodox unit inside L.A. County’s Men’s Central Jail. This unit, known as K6G, has an inmate culture that contrasts dramatically with that of the Jail’s general population (GP) units. Most notably, whereas life in the Jail’s GP is governed by rules created and violently enforced by powerful inmate gangs, K6G is wholly free of gang politics and the threat of violence gang control brings. In addition, unlike residents of GP, who must take care in most instances to perform a hypermasculine identity or risk victimization, residents of K6G face no pressure to “be hard and tough, and [not] show weakness” and thus can just be themselves - a safer and less stressful posture. The K6G unit is also relatively free of sexual assault, no small thing given that K6G exclusively houses gay and transgender prisoners, who would otherwise be among the Jail’s most vulnerable residents. This Article draws on original research to provide an in-depth account of life in both K6G and the Jail’s GP, with the aim of explaining K6G’s distinctive character. The most obvious explanation may seem to lie in the sexual identity of K6G’s residents, and this feature does help to account for many positive aspects of the K6G experience. But this Article argues that the primary explanation is far more basic: thanks to a variety of unrelated and almost accidental developments, residents experience K6G as a relatively safe space. They thus feel no need to resort to the self-help of gang membership or hypermasculine posturing and are able to forego the hypervigilance that often defines life in GP. As a consequence, life in K6G is less dehumanizing than life in GP and is even in some key respects affirmatively humanizing, providing space for residents to retain, express, and develop their personal identity and sense of self in a way that is psychologically healthier than the typical carceral experience. Understanding the implications of these differences and how they arose has much to offer those committed to making carceral conditions safer and more humane not only in L.A. County, but in prisons and jails all over the country.
 
Article
The recent exposure of an erroneous latent print identification by the FBI that led to the false arrest of Oregon attorney Brandon Mayfield has punctured the myth of the "infallibility" of fingerprint identification and generated renewed interest in the "error rate" of fingerprint identification. This article undertakes a comprehensive review of what is known about the potential error rate of latent print identification. The article first presents a compilation of all known exposed cases of fingerprint misattributions. Although only twenty such cases have been documented, an analysis of these cases suggests that these cases likely represent only a small portion of the true set of latent print misattributions. Then, the article compiles and analyzes proficiency test data that sheds some light on the potential error rate of fingerprint identification. The second half of the article is devoted to the fingerprint profession's and courts' rhetorical accounts of the potential error rate of latent print identification. This section analyzes efforts to minimize, dismiss, or otherwise account for fingerprint error. Fingerprint examiners make claims of error-free practice that belie the reality of error. The article concludes that we must confront, analyze, and seek to understand error if we want to reduce it.
 
Article
In recent years, federal and state enactments have given crime victims extensive rights to participate in criminal cases. Many of these rights apply only after the filing of criminal charges, such as the victim’s right to be heard during court proceedings. A crime victim's right to deliver an impact statement at sentencing, for instance, can only be exercised after the prosecutor has filed charges against a defendant and obtained a conviction. Other rights, however, could apply even before the formal filing of charges. As one example, the federal Crime Victim’s Rights Act (CVRA) extends to crime victims the right to “confer” with prosecutors. Can victims exercise this right even before charges have been filed?
 
Article
U.S. Supreme Court criminal procedure jurisprudence inhabits an unreal world where law enforcement abuse of power and racist law enforcement practices are rare. The defendant who attempts to challenge this “raceless world” by making a claim of racially biased prosecution faces the nearly impossible task of proving that prosecutors acted with an intent to discriminate. The Supreme Court’s opinions in United States v. Armstrong and United States v. Bass made this task all that more difficult by holding that to gain discovery to support a selective prosecution claim, the defendant must first prove that “similarly situated” whites were treated more favorably. As Gabriel Chin summarizes: “one cannot even get discovery without evidence, and one can rarely get evidence which will satisfy a court without discovery.” In this article, I address the “real world” of criminal law enforcement. In the first section, I discuss the overwhelming empirical evidence of the criminal justice system’s unjust and unequal treatment of African Americans and Latinos. In section two, I criticize the Court’s response in Armstrong and Bass to claims of racially biased prosecution, demonstrating that the “similarly situated” standard is an indeterminate standard: by focusing on one potential area of similarity and ignoring others, courts hostile to these claims easily find that the defendant has failed to meet his burden. Finally, in the third section, I discuss the most prominent rationale for race disparities in federal drug enforcement arrests and prosecution: federal agents are focusing on violent street gangs engaged in large-scale drug trafficking and these gangs are predominantly African American in membership. The validity of the claim is weakened by research that finds that most federal prisoners convicted on drug charges are non-violent offenders and most are not affiliated with a criminal organization. Furthermore, it is largely impossible to disaggregate racial differences in arrests and prosecution that are the result of enforcement patterns from those that are the result of actual differences in offending. In the final analysis, the decision to define some drug sellers as gang members, some organizations as “gangs,” and to ascribe the violent behavior of some gang members to that of others is wholly within the discretion of the prosecutor and not subject to proof requirements. In the final section, I examine the potential for change in the racist operation of the criminal justice system. Changing white misperceptions of crime and criminal offending have the potential to result in legislative and policy changes. I identify four obstacles to changing white perceptions: (1) deeply imbedded racist stereotypes of black criminality; (2) the tendency of whites to understand race discrimination only in terms of intentional acts of a bad actor; (3) the invisibility of white privilege to whites. In conclusion, I examine the Innocence Movement for its potential to be a vehicle for challenging white support, or complacency regarding, racial injustice in the criminal justice system.
 
Article
A traditional criminal code performs several functions. It announces the law's commands to those whose conduct it seeks to influence. It also defines the rules to be used in deciding whether a breach of the law's commands will result in criminal liability and, if so, the grade or degree of liability. In serving the first function, the code addresses all members of the public. In performing the second function, it addresses lawyers, judges, jurors, and others who play a role in the adjudication process. In part because of these different audiences, the two functions call for different kinds of documents. To effectively communicate to the public, the code must be easy to read and understand. It must give a clear statement, in objective terms if possible, of the conduct that the law prohibits and under what conditions it is prohibited. Readability, accessibility, simplicity, and clarity characterize a code that most effectively articulates and announces the criminal law's rules of conduct. The adjudicators, on the other hand, can tolerate greater complexity. Clarity and simplicity are always a virtue, but the judgments required of adjudicators necessarily limit how simple the adjudication rules can be. While the public can be told rather easily and clearly that "you may not cause bodily injury or death to another person," when a prohibited injury or death does occur, the adjudicators need rules to determine whether the injurer ought to escape liability because he or she had no culpability, was insane, believed mistakenly but reasonably that the force used was necessary for self-defense, or for any number of other reasons. If liability is appropriate, the adjudication rules must determine the appropriate degree of liability, taking account of the actor's level of culpability, the extent of the injury, and a variety of other mitigating and aggravating circumstances. Many, if not most, of these liability and grading factors require complex and sometimes subjective criteria. The current practice of using a single code to perform both functions means that neither function is performed as well as it could be. Is it possible to draft two codes - a code to articulate the rules of conduct, written for lay persons, and a code to govern the adjudication process, written for criminal justice professionals? If one were to pull out of a current criminal code only those provisions that a lay person must know in order to remain law-abiding, what would such a document contain and what would it look like? If one were to organize a code to capture the decisional process for criminal adjudication, what would such a document contain and what would it look like? This Article attempts to answer these questions. We tentatively conclude that distinct codes of conduct and of adjudication can be drafted and can allow the criminal law to perform both functions more efficiently and successfully. The possibility of creating separate codes for separate functions is made feasible in part because each doctrine of criminal law typically serves one or the other function. For example, to communicate effectively to the members of the public the rules needed to conform their conduct to the requirements of law, a code need not clearly communicate the subtleties of the insanity defense, the detailed definitions of culpable states of mind, or the operation of the entrapment doctrine. That is, a code of conduct and a code of adjudication can be created by segregating the doctrines of criminal law into one or the other code according to the function that each doctrine performs. This Article outlines how a code of conduct and a code of adjudication can be drafted, and how taken together the two codes can better perform each of the two functions of present criminal codes. Part II discusses strategies for drafting an effective code of conduct, Part III for drafting a code of adjudication. Both discussions use examples from the complete models for a draft code of conduct in Appendix A and a draft code of adjudication in Appendix B. We do not offer these codes as refined, ready-to-enact models, but rather as illustrations of the drafting principles that we develop.
 
Article
A court can invalidate or rectify certain kinds of offensive official action on the grounds of judicial integrity. In the past, it has served as a check on overzealous law enforcement agents whose actions so seriously impaired due process principles that they shocked the bench's conscience. The principle not only preserves the judiciary as a symbol of lawfulness and justice, but it also insulates the courts from becoming aligned with illegal actors and their bad acts. The 1992 case of U.S. v. Alvarez-Machain, however, may have signaled a departure from past practices. This article reviews current Supreme Court cases and finds that judicial integrity is no longer the bulwark it once was for justifying Fourth Amendment exclusionary remedies, sanctioning the Court's use of supervisory powers, and the application of due process. The author contrasts the current Court's view on judicial integrity with examples from Australia and New Zealand, where the doctrine has re-emerged and gained force. The author argues that in the United States, the pendulum has swung too far toward neglecting concerns inherent in the principles of judicial integrity and that judicial integrity needs to be restored.
 
"BEFORE-AND-AFTER" STUDIES ON CONFESSION RATES 
SUMMARY OF THE OAG REPORT 
Article
Constitutional criminal procedure decisions are often characterized today by pseudo-empirical statements about the importance of law enforcement and the sanctity of individual liberty. Without seriously taking account of empirical research, the Supreme Court strikes down rules of criminal procedure because they "fail to protect privacy...and impede effective law enforcement." The Court upholds other rules, again without really assessing the empirical evidence, because they embody a "carefully crafted balance designed to fully protect both the defendant's and society's interests." As we all recognize, these are purely rhetorical statements intended to render authoritative the Court's decisions. In this respect, the 1999 Term was business as usual. Without so much as discussing or even citing in a footnote the considerable research that had been conducted on police custodial interrogation in the 1990s, the Chief Justice, writing for a seven-member majority in Dickerson v. United States, concluded that there was no adequate justification for overruling the requirement of Miranda warnings. Writing for the Court in Wardlow as well, the Chief Justice acknowledged the empirical nature of the question - whether flight from a police officer amounted to reasonable suspicion - but stated that there were "no available empirical studies dealing with inferences drawn from suspicious behavior" and, therefore, that the Court had to rely on its own "commonsense judgements about human behavior." These types of assertions, we argue, are not self-evident or common sense. They are contested empirical claims that are hotly debated in legal and social scientific circles. And, we suggest, there are data and studies that discuss these empirical issues. Though we have differences of opinion as to the outcome in some of these cases, and though we have sharply disagreed in the past about the soundness of other criminal procedure decisions, in this Foreword we put aside our differences and link arms to call for a new generation of criminal procedure jurisprudence, one that places empirical and social scientific evidence at the very heart of constitutional adjudication. We are calling for a mode of judicial decision-making and academic debate that treats social scientific and empirical assessment as a crucial element in constitutional decision-making, thereby making criminal procedure decisions more transparent. By more transparent, we mean to describe adjudication that expressly articulates the grounds for factual assertions and, as a result, more clearly reflects the interpretive choices involved in criminal procedure decision-making. We are not so naive or idealistic as to think that increased attention to empirical evidence will guarantee right answers in criminal procedure cases. But use of empirical evidence will produce a clearer picture of the existing constitutional landscape and spotlight the normative judgments at the heart of criminal procedure cases.
 
Article
This Article advocates for the creation of a Grand Jury Legal Advisor (GJLA) to resurrect the historical autonomy of grand juries. The Article draws upon Hawaii's experiences with the GJLA, and incorporates survey responses from a representative sample of former GJLAs. The Article begins with a general and historical overview of the grand jury process. This portion of the Article demonstrates how all three branches of government have contributed to the diminishment of the powers of grand jurors. Part IV of this Article discusses the important policy rationales underlying the need for grand jury autonomy; Part V recommends the implementation of a GJLA to re-establish that independence. Finally, Part VI reviews the potential advantages and disadvantages of employing GJLAs, including possible benefits to federal prosecutors. This Article concludes that the GJLA strengthens the traditional role of the grand jury as a shield against unwarranted government accusations while still permitting grand jurors, prosecutors, and witnesses to perform their long-established functions. Moreover, the Article asserts that incorporating the GJLA, which has seen considerable success in both Hawaii and the military, throughout the federal court system would allay fears that the grand jury is merely a tool of the prosecutor. Finally, contrary to the false assumptions of some observers, the GJLA could potentially aid federal prosecutors without unduly slowing the indictment process.
 
Article
Perhaps most telling is the view of Professor Joseph Hoffman, someone who has devoted enormous time and energy to death penalty reform, spearheading death penalty reform efforts in both Illinois and Indiana and serving as Co-Chair and Reporter for the Massachusetts Governor's Council on Capital Punishment. Hoffman served as a member of an advisory group to discuss an earlier draft of this paper, and he strongly expressed the view that seeking reform of capital punishment in the political realm is futile. This is a striking position to take by one who is not morally opposed to the death penalty and who has worked on numerous reform projects. But Hoffman cited as grounds for his change of heart the example of Illinois, in which there were confirmed wrongful convictions in capital cases, a sympathetic Governor, and a bi-partisan reform commission, but still strong resistance in the state legislature to reforms specifically targeted at capital punishment. In short, serious concerns about efficacy in the political realm militate against the undertaking of a new reform effort by the Institute.
 
Article
This Article examines the working relationship between the insurance industry and prosecutors in the insurance fraud prosecution context. Both informal and legislatively mandated relationships are examined and funding schemes reviewed. The Article argues that specialized funding of investigators and prosecutors by industry assessment has led to perceptions of industry influence on the impartiality of the prosecutor. The Article then reviews the capacity of perceived influence to chill tort plaintiff lawyer activity. The Article concludes that the potential for conflict exists and is sufficient to warrant due process consideration. Additionally, the Article offers suggestions for potential prophylactic procedural safeguards in the course of prosecuting lawyers for their representative actions in the insurance fraud context.
 
Article
Twenty years ago, in Terry v. Ohio, the Supreme Court defined a level of police conduct that, although constituting a seizure under the fourth amendment, did not require probable cause on the part of the police. Because the issue of when a seizure occurred was not decided in Terry, the precise contours of the “nonseizure” category identified by the court were left undefined. Moreover, for more than a decade following the Terry decision, courts focused on the intermediate category of the police conduct: brief seizures. In United States v. Mendenhall, Justice Stuart, in a plurality opinion joined only by Justice Rehnquist, explained that the question of whether an encounter is a brief seizure and not merely a communication involving no coercion or detention should be answered by determining whether a reasonable person would feel free to end the encounter and walk away from the police officer. If there is no seizure, than no fourth amendment activity, has taken place. This decision has been adopted by the majority in Florida v. Royer and has been widely accepted by state courts. This article proposes that the Mendenhall-Royer standard, as presently interpreted, should be discarded because it is unworkable and fails to strike the appropriate balance between the liberty interests of citizens and the interest of the state in combating crime. The article first examines the two cases in which the present test was developed. The article then explores the results of this lack of guidance by examining the confusion lower courts are experiencing in deciding cases using the Mendenhall-Royer standard. Finally, the article examines possible alternatives to the Mendenhall-Royer test.
 
Article
This Article addresses the relationship between Section 2254 of the Anti-Terrorism and Effective Death Penalty Act and the Fourteenth Amendment. There is a substantial body of literature that either laments or celebrates the rigid limitations on relief imposed on state prisoners attempting to vindicate their federal constitutional rights in federal court. In a series of cases beginning with Williams v. Taylor, the Court has left little doubt that patently incorrect interpretations of the United States Constitution do not necessarily warrant relief under the applicable provision of the habeas corpus statute, Section 2254. The question remains, however, whether such limitations on the ability of federal courts to enforce the federal Constitution represents a constitutional problem. This Article is the first attempt by a commentator to reconcile Section 2254 with the Fourteenth Amendment, ultimately concluding that Section 2254, as currently applied, is inconsistent with the Fourteenth Amendment's incorporation doctrine. The hallmark of incorporation under the Fourteenth Amendment, or more precisely, selective incorporation, is the promise that constitutional rights must apply with the same force and breadth in each of the fifty states, a promise that is impossible to realize under the strictures of Section 2254. Because Section 2254 impedes the ability of federal courts to apply the federal Constitution to constitutional claims - e.g., the Sixth Amendment right to counsel-there appear to be serious Fourteenth Amendment concerns that have previously gone unexplored. Because of the limitations on relief for incorrect applications of the Constitution imposed by Section 2254, and in view of the nature of certain of the rights announced in the Bill of Rights, this Article posits that the constitutional criminal procedure rights have been sub silentio un-incorporated.
 
Article
This article examines the application of the fourth amendment to numerous technology-aided "visual" searches that enable law enforcement officers to "see" things previously undetectable. After a brief summary of the test from Katz v. U.S. and several Supreme Court cases interpreting it, the article examines the wide range of visual enhancements, from eyeglasses to infra-red nightscopes. It breaks lower court cases into several general categories. The first, "pure" reasonable expectation of privacy cases, itself has three subcategories, the "successful," the "likely," and the "honored." The other two categories are cases that turn on location and those in which the sophistication of the technology provides the answer. It argues that the inconsistent results produced by these analytical structures reveal that however valid the Katz approach is for the problem of electronic surveillance, it fails to provide consistency or convincing outcomes in many visual search cases. Accordingly, the article suggests adoption of a different approach for such cases. It first takes a broader definition of a fourth amendment search to include all intentional intrusions by the police. It then provides a four part test that evaluates the constitutionality of visual searches. the test first requires two general norms. The government must be able to show that its purpose in using making an observation was legitimate. It must also show that its implementation was reasonable (which is largely the equivalent of the "reasonable execution" requirement for traditional searches). There are also two specific norms. First, some objects are specially protected from visual searches by the government, even outside of a person's house. This would include, for example, a public restroom. Second, highly sophisticated technology would be subject to fourth amendment analysis, as people have legitimate expectations of privacy from government use of technology that is unknown or especially intrusive to the public, even if used from a public location.
 
Article
In the 1970s, the Court announced in a series of cases that police officers with probable cause to believe contraband or evidence of a crime is within a container must obtain a warrant from a neutral, detached judicial officer before searching that container. In requiring a search warrant, the Container Doctrine put portable containers on an almost equal footing with houses, which enjoy unquestioned Fourth Amendment protection. This Article demonstrates that the Container Doctrine is fast becoming a historical relic as the Court expands the ways in which law enforcement officers can search containers without first obtaining a warrant issued by a judicial officer. Studying the numerous ways in which the Court has undermined the Container Doctrine is useful for several reasons. First, the erosion of the Container Doctrine is emblematic of a more tectonic jurisprudential shift - the Court’s movement away from the Warrant Preference view (the belief that the Fourth Amendment expresses a preference for warrants) and its gradual embrace of the Separate Clauses (or Reasonableness) view of the Fourth Amendment. Second, the Court’s willingness to allow a growing number of container searches without warrants suggests a deep judicial ambivalence about the effectiveness of warrant formalism. Third, the demise of the Container Doctrine, and its corresponding impact on the poor and homeless, reflects a troubling indifference to non-majoritarian interests. This Article proceeds in four parts. Part II examines the longstanding debate over whether the Fourth Amendment expresses a preference for warrants or merely requires that searches and seizures not be unreasonable. Part III provides background on the Container Doctrine and discusses its rationales. Part IV examines the myriad ways in which police can lawfully search a container without a warrant. The Court’s increasing willingness to tolerate warrantless searches of containers mirrors its gradual embrace of the Separate Clauses or Reasonableness view of the Fourth Amendment, the position that all the Fourth Amendment requires is that searches and seizures be reasonable. Part V provides a discussion of why this movement away from warrants towards reasonableness in the container search context is problematic and what might be done about the situation. This Article argues that not requiring warrants for most container searches hurts the poor and, by implication, poor communities of color, more so than the wealthy. To rectify this unfairness, this Article proposes an additional layer of review in container search cases where the government claims the warrantless search falls within an exception to the warrant requirement. Borrowing from a small slice of the Court’s equal protection jurisprudence, its “rational basis with bite” cases, this Article proposes that courts be non-deferential and rigorous when engaging in reasonableness review. In other words, reviewing courts should employ reasonableness review “with teeth.”
 
Article
The Sixth Amendment right to counsel has been revered as fundamental to a fair criminal trial. The Supreme Court, moreover, has deemed this right critical to protecting a defendant’s constitutional rights at a post-charge interrogation. Nevertheless, the Supreme Court’s modern Sixth Amendment jurisprudence has undermined the practical import of the right to counsel in the interrogation context by undervaluing the attorney-client relationship itself. This Article critiques the Supreme Court’s Sixth Amendment jurisprudence and presents an alternative “relational” model of the right to counsel during post-charge interrogations. The Article concludes by arguing that states, under their own constitutions, elect for a relational right to counsel over the “offense-specific” federal model.
 
Article
This article presents a legal-realist account of the century-long life span of modern Fourth Amendment doctrine. Part II briefly reviews the story of constitutional arrest and search doctrine from the framing of the Bill of Rights to the beginning of the twentieth century. It notes that common-law standards for arrests were originally understood to be salient features of the "due process of law" required by the Fifth Amendment, but that nineteenth-century judges effectively jettisoned that understanding. Although the Fourth Amendment had originally been understood simply as a ban against the issuance of too-loose search warrants, especially for revenue searches of houses, the loss of the original understanding of due process of law opened the way for the Supreme Court to later reinvent criminal procedure under the Fourth Amendment as "search and seizure" doctrine. The article then analyzes the century of modern Fourth Amendment doctrine in terms of five distinct periods. In the initial period, discussed in Part III, the justices pursued a goal similar to that evident earlier in the remarkably activist 1886 ruling in Boyd by reinvigorating the Fourth Amendment as a protection of papers, especially business records. In the seminal decision in Weeks, the justices innovated by reading the common-law warrant requirement for house searches into the Fourth Amendment itself, by applying that constitutional standard to the conduct of officers as well as to legislation, and by announcing the exclusionary rule as the consequence of an unconstitutional search and seizure. Later cases then extended that analysis to seizures of business records from offices. During the period of Prohibition, discussed in Part IV, the justices relaxed the Weeks warrant standard by inventing the concept of "Fourth Amendment reasonableness" in 1925 in Carroll to allow warrantless searches of autos for liquor in circumstances where searches incident to lawful arrests could not be justified. (Academics then prochronistically imposed that novel formulation on the past to invent the conventional but fictional account of Fourth Amendment history.) During the next period, discussed in Part V, the Roosevelt and Truman appointees then split as to whether the Weeks warrant conception or the Carroll reasonableness formulation should predominate. Part V discusses the period of the Warren Court, which definitely revolutionized search and seizure insofar as it incorporated Fourth Amendment law into the Fourteenth Amendment in Mapp and thus made it applicable to state criminal justice proceedings. However, the content of the justices’ rulings during this period was actually mixed. Available statistics indicate that government and defendant victories were essentially even during all but the decisions announced in 1968 and 1969 when a strong liberal majority emerged after Justice Marshall replaced Justice Clark. However, the extension of constitutional protections to state criminal defendants fundamentally altered the politics of criminal justice. Part VI then discusses the dismantling of search and seizure protections that began with Richard Nixon’s appointment of four justices known to be opposed to the Warren Court’s rulings. Statistics demonstrate that there was a marked change as government petitions soon became the predominate source of the search and arrest cases accepted for review. Additionally, except for a brief hiatus in the late 1970s that ended when Justice O’Connor replaced Justice Stewart, the conservative majority ruled predominately in favor of government parties during this final four-decade period as they undertook a multi-prong campaign to restrict virtually all aspects of search and seizure protections. After nearly abolishing the exclusionary rule in 1976, the Burger Court majority substantially curtailed the rule’s operation and also raised the threshold for standing. They also eased the standards for consent, restricted the scope of Fourth Amendment protections, eviscerated the probable cause standard in 1983 in Gates, and effectively ended enforcement of warrant standards in 1984 in Leon. More recently, the Rehnquist and Roberts Courts also effectively created discretionary police arrest and search authority in Atwater and Moore, and further curtailed exclusion while rejecting other potential modes for enforcing search protections. The article concludes that, notwithstanding the seeming mass of search and arrest precedents, the supposed right against unreasonable searches and seizures has now been reduced to little more than a rhetorical apparition. Indeed, the destruction is so complete that the number of government certiorari petitions regarding search and seizure cases has decreased to a trickle. So little is left, it seems doubtful the right can be revived.
 
Article
Although few noticed the link between them, two Supreme Court cases decided in the same week last Term, Ashcroft v. al-Kidd and Camreta v. Greene, both involved the Fourth Amendment implications of detaining witnesses to a crime. Al-Kidd, an American citizen, was arrested under the federal material witness statute in connection with an investigation into terrorist activities, and Greene, a nine-year-old suspected victim of child abuse, was seized and interrogated at school by two state officials. The opinions issued in the two cases did little to resolve the constitutional issues that arise in witness detention cases, and in fact muddied the waters by suggesting that the motivations underlying the decision to seize a witness are constitutionally irrelevant. In fact, however, the Fourth Amendment doctrine that governs these cases is the special needs exception, which under Supreme Court precedent does trigger an inquiry into subjective motive. As a result, the Fourth Amendment was violated if al-Kidd was pretextually detained because the FBI wanted an opportunity to investigate him, but lacked the probable cause to arrest him, or if the primary purpose for seizing Greene was to generate evidence in connection with the criminal charges pending against her father.
 
Top-cited authors
Delbert S Elliott
  • University of Colorado Boulder
Robert Reiner
  • The London School of Economics and Political Science
Lawrence William Sherman
  • University of Cambridge
Alfred Blumstein
  • Carnegie Mellon University
David Finkelhor
  • University of New Hampshire