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.
ANNA ROBERTS, Seattle University School of Law
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
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.
PAUL MARCUS, William & Mary Law School
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.
DONALD A. DRIPPS, University of San Diego School of Law
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.