David M. Siegel

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• J.D.
• Professor of Law at New England Law

In China, police control of street protests can be accomplished under existing law both directly, through administrative penalties including detention that police can impose on their own authority, and indirectly, through the threat of detention as part of the ordinary criminal process. In the ordinary criminal process Chinese law provides police a...

The continuing duty of criminal defense counsel to their former clients, even when those former clients bring post-conviction actions alleging ineffective assistance of counsel, has existed as a national practice standard in capital cases since at least 1987. In addition to its inclusion in the ABA’s Guidelines for the Appointment and Performance o...

The standard of practice for forensic interviews in criminal and delinquency cases, other than those conducted as part of brief preliminary screening evaluations or in emergency situations, should include a digital recording requirement. This standard should be adopted because of the greater availability of, and familiarity with, recording technolo...

(Speech presented 20 May 2017) I’m going to describe an approach to reform of police departments engaged in repeated, widespread violations of the civil rights of civilians. These are departments that have a “pattern or practice” of civil rights violations. This approach identifies systemic problems in a department through a complete departmental i...

This presentation outlines the ethical obligations for criminal defense counsel when former clients challenge the adequacy of their representation. It focuses on New York law, with parallel references to the ABA Criminal Justice Standards - Defense Function (4th edition).

Prison education is a remarkably good investment for society, yet an increasing proportion of inmates have no access to it because the operators of the prisons in which they are held have a powerful incentive not to provide it: they make more money that way. Critics and analysts of private prison operators have suggested various incentive structure...

Electronic recording of custodial interrogations has emerged as a significant technique to identify instances of police mistreatment of suspects and use of coercion during questioning, to evaluate the voluntariness of purported confessions and to prevent improper conduct by police throughout the world. China's top-down policy of recording appears c...

This short presentation, intended for non-US audiences, outlines the role of legal education, culture and practice affects the development of US judges.

The continuing duty of criminal defense counsel to their former clients, even when those former clients bring post-conviction actions alleging ineffective assistance of counsel, has existed as a national practice standard in capital cases since at least 1987. In addition to its inclusion in the ABA’s Guidelines for the Appointment and Performance o...

This brief introduction to the concept of exculpatory evidence in US law was prepared for Uzbek prosecutors, following a May 2014 conference in Charvaq, Uzbekistan on "The Role of the Prosecutor in Ensuring Efficient and Just Judicial Process: Uzbek and US Experiences.” Comparative references to analogous provisions of Uzbek and US law are provided...

The “new” recognition in the American Bar Association’s 2003 Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases of a continuing duty on the part of defense counsel to safeguard the interests of former clients by facilitating the work of successor counsel was essential to implementing post-conviction review of t...

Miller v. Alabama and Graham v. Florida’s equation in proportionality analysis under the Eighth Amendment of life without parole for juveniles and the death penalty for adults changes what is effective representation for juveniles facing capital-equivalent cases. This constitutional equivalence has two components: the unique severity and characteri...

This brief article is the second of a two part series analyzing Massachusetts General Law Chapter 278A, which provides a mechanism for persons who claim they are factually innocent of crimes for which they were convicted to obtain testing and analysis to show this. This part examines the first-ever statewide evidence preservation obligation the Act...

This brief article is the first of a two part series analyzing Massachusetts General Law Chapter 278A, which provides a mechanism for persons who claim they are factually innocent of crimes for which they were convicted to obtain testing and analysis to show this. This part outlines the background and legislative history of the bill that became Cha...

In July 2010 the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued an opinion that any criminal defense lawyer facing or bringing a claim of ineffective assistance of counsel (IAC), or any prosecutor defending one, should read. Formal Opinion 10-456, 'Disclosure of Information to Prosecutor When Lawyer’s...

The US Supreme Court has set 2 key constitutionally based limits to punishment of juveniles; a bar on the imposition of the death penalty for crimes committed by juveniles and of life imprisonment without possibility of parole for juveniles who commit nonhomicide offenses. Both decisions held that these penalties were disproportionate given juvenil...

The Massachusetts Supreme Judicial Court’s decision in Commonwealth v. Porter P. makes four important contributions to search and seizure jurisprudence under the Massachusetts Declaration of Rights. First, the decision reinforces the significance of residential privacy protection. Second, the decision specifies the requirements for valid third part...

Recent criticism of American legal education has focused on its being theory-driven rather than practice driven, which either produces or reinforces a divide or gap between theory and practice. Yet two of its prominent features expressly draw upon experiential learning, one directly by sending students into experiential learning situations (legal c...

Recent criticism of American legal education has focused on its being theory-driven rather than practice driven, which either produces or reinforces a divide or gap between theory and practice. Yet two features of American legal education expressly draw upon experiential learning, one directly by sending students into experiential learning situatio...

A criminal defense lawyer's actions as trial counsel, apart from the substantive quality of his or her representation, can dramatically affect a defendant's ability to later claim ineffective assistance of counsel (IAC). Several ethics rules apply to these actions, and US Supreme Court decisions that recognize ABA Performance Standards as guides to...

Expert testimony by clinical social workers concerning a criminal defendant's competence to stand trial has increasingly been admitted in certain state courts over the past two decades, yet most state laws still require that court-appointed competence evaluators be psychiatrists or psychologists. Pressure to admit social workers' testimony will com...

This article examines implementation of Sell v. United States, 539 U.S. 166 (2003), that clarifies when a criminal defendant can be involuntarily medicated to establish his or her competence to stand trial. Legal commentators criticize Sell for insufficiently protecting defendants' rights, while mental health commentators applaud it for decoupling...

This case comment analyzes the rule and significance of Commonwealth v. DiGiambattista, 442 Mass. 423 (2004), in which the Supreme Judicial Court of Massachusetts held as a matter of its supervisory authority that whenever a criminal defendant is alleged to have made a statement produced by custodial interrogation or interrogation in a detention fa...

This article proposes two tasks for Italian legal education following the most significant reforms of Italy's criminal justice system in over a century. Now a "mixed" or hybrid system that is the most adversarial in continental Europe (with confrontation, cross examination, lawyer-directed questioning of witnesses, and limited plea bargaining), the...

Law enforcement interviews of hospital patients are a common but underrecognized phenomenon in US medicine. Daily in emergency departments and inpatient trauma services, and sporadically in other departments, police officers request permission to interview patients who may have experienced, witnessed, or perpetrated crimes ranging from motor vehicl...

This Article compares the models two supreme courts have developed for mediating the relationship between two constitutional rights that apply in the criminal process. It suggests that the degree to which a right actually protects an individual turns upon two questions. First, is the right entrenched as a basic guarantee of adjudicative fairness or...

This article reviews the issues in Lavallee v. Justices of the Hampden Superior Court and Arianna S. v. Commonwealth et. al. concerning insufficient indigent defense in Massachusetts and the experience of systematic challenges to indigent defense in other jurisdictions. In Lavallee, the Supreme Judicial Court found the shortage of available counsel...

Recent developments in forensic science, particularly in the area of DNA analysis, have generated a new body of law for defendants who allege that they were wrongfully convicted. These innocence-based postconviction review statutes, adopted now in thirty-three states, provide avenues for defendants to obtain "new" or newly available scientific test...

Since the modern advent of law clinics, American legal education has been locked into a binary view of the world that precludes a great deal of genuine public service legal opportunities during law school, fosters a counterproductive hierarchical mentality and promotes a puzzlingly artificial view of the relationship between theory and practice in...

The government initially argued that Weston could adequately control his delusions in order to stand trial. ... Besides avoiding the ultimate constitutional question, the Court also expressly declined to specify under what circumstances involuntary psychotropic medication of a pretrial defendant could occur - that is, what substantive standard the...

This article addresses the legal and ethical obligations of criminal defense attorneys both to former clients and to courts in instances where a convicted former client challenges the conviction on ineffective assistance of counsel grounds. The thesis advanced is that existing ethical rules demand that zealous criminal defense lawyers whose clients...

The article concerns the U.S. Supreme Court's first consideration of the diminished capacity doctrine, in a 1944 case in which an African-American janitor killed a white, female librarian at the National Cathedral in Washington, D.C. - for no apparent reason other than that she called him a "nigger." The article relies on previously unpublished mat...

Is your client taking psychoactive medication? The U.S. Supreme Court’s decision in Sell v. United States makes this question more important than ever, and means that you must not only know the answer, but must also understand exactly what the medication is and how it could affect your client’s trial-related capacities. Sell makes clear that due pr...