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Wednesday, October 16, 2013

Three Forthcoming Articles of Interest: Are Prior Convictions Valid Impeachment? Should Judges Talk to Jurors More? Do Liberal Procedures Lead to Punitive Substance?

 

"Impeachment by Unreliable Conviction" Boston College Law Review, Forthcoming

ANNA ROBERTS (Seattle University School of Law)

 

"Judges Talking to Jurors in Criminal Cases: Why U.S. Judges Do it so Differently from Just About Everyone Else"  Arizona Journal of International and Comparative Law

PAUL MARCUS (William & Mary Law School)

 

"Does Liberal Procedure Cause Punitive Substance? Preliminary Evidence from Some Natural Experiments"  Southern California Law Review, Forthcoming

DONALD A. DRIPPS (University of San Diego School of Law)

Abstracts after the jump.

"Impeachment by Unreliable Conviction" 
Boston College Law Review, Forthcoming

ANNA ROBERTS, Seattle University School of Law

This Article offers a new critique of Federal Rule of Evidence 609, which permits impeachment of criminal defendants by means of their prior criminal convictions. The Article draws on three aspects of the contemporary criminal justice system to show that in admitting convictions for impeachment courts are wrongly assuming that they are necessarily reliable indicators of relative culpability. First, courts assume that convictions are the product of a fair fight, despite the adversarial collapse revealed by the nature of plea-bargaining, the crisis in public defense, and the data on wrongful convictions; second, courts assume that convictions demonstrate relative culpability, despite the racial and other disparities that pervade law enforcement; third, courts assume that convictions connote moral culpability, despite the growth in prosecutions that require no culpable mental state. This Article proposes that before a conviction is used for impeachment, there should be an assessment of the extent to which it is a reliable indicator of relative culpability.

In support of its proposals, this Article draws two new sources into the impeachment context. First, in a groundbreaking sentencing opinion, Judge Nancy Gertner refused to give the prescribed weight to the defendant’s prior convictions, since she feared that they were the product of racial profiling and that she would be compounding disparities. Second, the prosecution’s ethical duty to 'do justice' militates in favor of a prosecutorial assessment of a conviction’s reliability before proffering it for impeachment. Through these kinds of judicial and prosecutorial inquiry, the law of impeachment will hew more closely to the realities of the criminal justice system, and to justice itself.

 

"Judges Talking to Jurors in Criminal Cases: Why U.S. Judges Do it so Differently from Just About Everyone Else" 
Arizona Journal of International and Comparative Law, Vol. 30, No. 1, 2013


PAUL MARCUS, William & Mary Law School

Finally, the evidence has all been heard, the lawyers have given closing arguments to the jurors, and now it is up to the trial judge; it is her turn. Of course, she will instruct the jury on the law, no question about that. But this was a very lengthy multiple defendant trial. That experienced, savvy trial judge is no doubt tempted to go beyond stating to the jurors the mere legal rules (the usual jury instructions). She might also prefer to talk with them about the evidence: comment on particular items, summarize the overall evidence and the arguments put forth by the lawyers on both sides. After all, we all want to be certain that these lay people understand just what this case was all about. And who better to tell them about the evidence than the judge? If this judge sits in the United States, she had better resist that temptation. Otherwise, she is very likely to be reversed on appeal, perhaps even disciplined. But, elsewhere in the common law world, that judge would not be at all concerned about going beyond the giving of jury instructions. In fact, if she does not, she is likely to be reversed on appeal, perhaps even disciplined.

Why the difference between U.S. judges and judges from other common law based nations, with similar roots in the English criminal justice system? Are Americans really that different from their English-speaking cousins on this point? What explains that difference? And which nation gets it right? Those are the questions I attempt to answer in this article.

To do so, I take an unconventional approach. I discuss the well-established legal principles one finds in cases, statutes, and rules in the five focal nations of Australia, Canada, England, New Zealand, and the United States. In my research, however, I sought to go beyond this, to find out the way in which the practice really occurs. In short, I was trying to determine whether the trial judges truly acted so very differently in the various nations. I was in touch with more than eighty individuals in these five nations. Most I knew; all were experienced in the world of criminal justice, as trial or appeals judges (state or federal), prosecution or defense lawyers, or academics who either left the practice or studied it carefully. I met with them, or spoke with them on the phone, or corresponded with them, or exchanged email messages. This article lays out the surprising answers to the questions I asked these individuals on the practice of instructing jurors.

 

"Does Liberal Procedure Cause Punitive Substance? Preliminary Evidence from Some Natural Experiments" 
Southern California Law Review, Forthcoming

DONALD A. DRIPPS, University of San Diego School of Law

The late, and justly celebrated, William Stuntz made many contributions to the literature on criminal procedure. Among these is the arrestingly counter-intuitive thesis that the Warren Court’s pro-defense procedural rulings made a causal contribution to the “punitive turn” in the substantive criminal law. This article, contributed to a symposium on Criminal Justice at the Crossroads held at USC on June 7, 2013, and forthcoming in the Southern California Law Review, aims to test this thesis empirically.

Before the Warren Court, criminal procedure was not uniform across the states. Some were more liberal and some more conservative. The article argues that these differences set up natural experiments. We would expect the Warren Court’s decisions to provoke more powerful reactions in jurisdictions where local practice was more radically transformed. We can assess whether conservative jurisdictions increased the severity of the substantive law faster than counterpart jurisdictions with more liberal baseline procedures.

The article measures punitiveness according to an index of prisoners per homicide. It codes eight US jurisdictions as liberal or conservative in their pre-Warren Court criminal procedure. Generally similar jurisdictions with marked differences in their criminal procedure are then compared: liberal California with conservative New York, liberal Illinois with conservative Ohio, liberal Kentucky with conservative Maryland, and liberal DC with conservative Virginia. The data in general do not support Professor Stuntz’s claim that liberal procedural rulings encouraged more punitive substance.

Further study is warranted. The available evidence, however, does not suggest the existence of a general substance-procedure feedback loop that should cause judges, legislators, or law enforcement officials to hesitate to adopt otherwise justified reforms.

 

- JB

http://lawprofessors.typepad.com/evidenceprof/2013/10/three-forthcoming-articles-of-interest-are-prior-convictions-valid-impeachment-should-judges-talk-to.html

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