CrimProf Blog

Rethinking Law School Exams

Jillian Lederman, a fellow at the Wall Street Journal, has published some intriguing (and sure to be controversial) opinions regarding disabilities accommodation in testing, including in law schools.  There is no doubt that law schools have been wondering how to legally and ethically operate in this space over the past decades, both in instruction and examination—at both of the schools at which I have spent the lion’s share of my time, faculty and staff have grappled with the issues, only to then grapple with them again.  At least some aspects seem ‘essentially contested’ spaces in which everyone wants to do right, but in which it can be difficult to reach agreement on precisely what ‘right’ entails.

But if there are difficult questions there, there may be some easy questions as well.  At the least, there seem questions worth asking that have nothing to do with disability, and therefore on which professors who are not expert in those areas can meaningfully opine.

And here may be one: why did law schools ever adopt the absurdly long issue spotter, and why do so many schools and professors continue to use it?  I’m thinking here of the truthful student claim that, ‘I could have answered every single issue, but there simply wasn’t time; I didn’t step out of the testing room a single time, and I couldn’t finish!’  My sense is that there are a reasonable number of such honest claims; if so, why is such exam a good one?  (For the professor doubting my claim, I challenge him or her to sit down and take his or her own examination, or a colleagues’ lengthy examination, under timed examination conditions; distressingly, many professors don’t do this.)

Like most professors, I had no educational background in pedagogy of any kind, and my initial examinations were absurd.  (Of course, phew, they still produced individual grades and a curve that strongly correlated to same student performance in other courses… but absurd is absurd.)  Why were they absurd?  Because they were ridiculously too long—in my case, a ridiculously too long combination of objective questions, a traditional issue spotter, and a policy question.  Why did I make them ridiculously too long?  Because (1) I modeled them on the examinations I had taken as student and on those my colleagues generously shared with me, and (2) I feared otherwise they would be too easy.  ‘If I can rather easily answer the questions,’ many a new professor thinks, ‘then so will all my students, and it will destroy the curve!’  Wrong.  But it feels right at the time.  Thus, over the years, my exams began to shrink.  (As have many standardized exams in different fields from high school to professional school, but I’ll leave such broader thoughts to another day.)

And as I began to think more about this, I began to check for correlations in my grading.  Since I most often graded by giving a point for anything helpful towards a right answer (a ‘check’), there were no particular numbers of points for any particular issue.  (There are advantages and disadvantages to this and every other grading scheme, but I won’t get into them here.)  One upshot is that it was easy to see whether, say, a student grade on five pages of exam writing correlated to the same student’s grade on ten pages of exam writing.  In other words, if I calculated and assigned grades only based upon the first five pages of every student paper, would each grade closely track the correlate when I graded every written page?  Unsurprisingly—is there reason to think students tend to get knowledgeable or ignorant just about page six?—the correlations were strong.  Moreover, the correlations between grading on the objective portion and essay portion were also strong.  And thus, I began to wonder, why are we giving, as one student in Ms. Lederman’s article calls them, “racehorse exams”?

Is it because lawyers often bill by the hour, and so we think this is an essential lawyerly function?  I have grown increasingly skeptical… in my own work, at least, I would much rather a colleague who takes (reasonably) longer and produces better.  Is there reason to think partners in law firms wish otherwise?  How often does a partner in a law firm rush into an associate’s office, hand her ten pages of absurd yet cursory facts that raise nearly every legal issue in a law school course, and demand a written analysis of them all in three or four hours?  My practice experience is thin, but, again, put me down for ‘skeptical.’

So, in short, where’s the examination fire?  Why not give a reasonable exam that most students can finish comfortably within the examination time, having sufficient time to carefully read, to call to mind the law they have learned, and to apply that law… producing answers that are objectively correct or objectively wrong?

This is, for what it is worth, what I now try to do in my courses, and it has led me to entirely objective examinations of roughly fifty questions.  This format works particularly well for me because I personally do well spending countless hours crafting questions, but less well reading countless rushed student recitations of roughly the same answer.  It seems wise—or at the very least reasonable—for any professor to play to her strengths.  Others will therefore reach different particulars.  And since this has always been a core issue of academic freedom as we run American legal education—how to teach and how to test—I’d never seek to limit a colleague’s choice.  Besides, if we are to learn, it is probably only collectively through individually different choice.

I think we could—and probably should—have robust debates on many specifics regarding examination.  But I haven’t seen a persuasive-to-me justification for the traditional, lengthy “racehorse” law school issue spotter.  Is it out there?  If not, we could solve part of what Ms. Lederman describes as a problem without risking discriminating against anybody—by giving better exams for everybody.

Criminal law & procedure teaching materials database -- it's live (and needs your help)

Some exciting news from Russell Gold, who's chairing AALS's Crim Pro Section:

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Hi Everyone,

I hope that summer is treating you well.  I'm excited to report that the digital teaching resources repository for criminal law and procedure courses is now live!  You can find it from the page of either the Criminal Procedure or Criminal Law sections or the link is here.  That said, you'll see that the content of the repository is still sparse.  Thanks very much to those of you who already contributed.  For those who haven't, I'll encourage you to contribute now.  I'd especially love to see more content for externships, clinics, and substantive criminal law courses other than 1L Criminal Law.

I encourage you to share:

• Syllabi
• Teaching notes
• Classroom slides
• Sample assignments, exams, or practice questions
• Classroom exercises
• Supplemental materials (podcasts, videos, articles, URLs for websites)

If you are willing to contribute, here's what you should do.  In the next two weeks:

1. Please reply individually to Russell ([email protected]) explaining which coursebook (if any) you choose for each of your criminal justice-related courses and why you choose that book.  We have a document for each course in the repository that explains why the amazing teachers in this group use the book they do.  We think this document will help other teachers, especially new teachers, decide which book and approach best suits their needs before diving more deeply into the repository.
2. Please post materials using this Dropbox file request: www.dropbox.com/request/u345Veuxh6ZdNEwymEZF.  Feel free to include any notes or context you believe would be helpful to those reviewing your materials.  Please include your name when you're submitting using the File Request.  Please upload your files in one or more folders rather than individually.  Please separate your materials for each criminal justice-related course that you teach.  (Uploading a big batch of materials with sub-folders works well and so will separate uploads with a folder of materials for each of your courses.)  Dropbox is just the temporary holding location, and only Executive Committee members will be able to see those submissions before they go live to the AALS repository.

If you have materials that you'd like to contribute but have any technical difficulties in so doing, please reach out to Russell individually ([email protected]).

Please remember that to make these materials accessible only to other faculty members access to this repository is limited to members of the Criminal Law and Criminal Procedure sections.  If you are mentoring someone who wants access to the materials, please encourage them to join one or both sections.

Warmest regards and many thanks,
Russell Gold, Justin Murray, Melissa Redmon, Ben Levin, Evelyn Malavé, Maybell Romero, and Valena Beety

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Russell M. Gold
Bainbridge-Mims Professor of Law
University of Alabama School of Law
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Classroom Generative AI Hallucinations

In my textbook, I use the classic case of People v. Bisset, 92 N.E. 949 (Ill. 1910), in introducing common-law voluntary manslaughter.  It’s a colorful story of two plainclothes cops in a Chicago saloon that begins (oddly) friendly and ends (tragically) deadly.  Things begin to go south when one of the officers seizes a patron “over one of his pockets, and the two of them circle[ ] and scuffle[ ] across the room.  It is not pretended by any of the witnesses that they heard all that was said between them, but it is clear that [the officer] said to [the patron]: ‘I want what you have in your pocket; you know what I mean; I eat those things.’ ”

Based upon the context, I’ve always considered the best reading to be that the officer had seen the patron was carrying a gun, and “I eat those things” was ‘tough guy’ speech for demanding the weapon.  Like many of the great cases we use in the classroom, the short speech is a delightful gem that can provoke useful tangents on matters such as witness recollection and scene recreation, and students and I always share a laugh over the words.

But this year introduced something new.  A student loudly proclaimed a different, very particular factual cause: the item demanded was a potato.  Yup, not a gun, but that starchy tuberous wonder-of-nature.  I had never heard such claim before, and it doesn’t seem to fit the case, so I expressed suprise but interest.  The source of the claim?  According to the student, ChatGPT.  Later, the student followed up, admitting it appeared a hallucination.

After class, I naturally went right to the (ever-changing) source, and it gave a better explanation:

SEH: In the case of People v. Bisset, 92 N.E. 949 (Ill. 1910), what did the cop mean by, “I eat those things.”

ChatGPT: In People v. Bisset, 92 N.E. 949 (Ill. 1910), the phrase “I eat those things” was reportedly said by a police officer in response to a suspect’s resistance or aggressive behavior.  This was likely a colloquial way of expressing that the officer was experienced in handling such situations and was unfazed by the suspect’s actions.  Essentially, it suggested confidence and a lack of intimidation—implying that dealing with resistance was routine for him.

When I followed up with, “Somebody thought it was a potato,” ChatGPT did a predicably nice job:

ChatGPT: That’s an interesting take!  If someone thought the phrase “I eat those things” referred to a literal potato, they were likely interpreting it too literally.  The officer wasn’t talking about food—he was using a figurative expression, likely meaning that he was accustomed to handling situations like the one he was in.
But now I’m curious—where did you hear that someone thought it was a potato?

Ah, the delights of apparent machine consciousness.  Curious, it is.  Well, of course I obliged: “It was in my law school class.”

ChatGPT: That’s hilarious!  Law school discussions can take some wild turns, but imagining someone genuinely thinking the officer was talking about a potato is next-level.  Did the professor let it slide, or did they pause the class to unpack that interpretation?

SEH: I’m the professor, so I indeed did not let it slide...and the student claimed he got the answer from you!

ChatGPT: Oh wow—busted!  I can assure you I never told anyone that the cop in People v. Bisset was talking about a potato.  But I have to admire the sheer creativity (or audacity) of that student’s defense.
Did they double down on it, or did they eventually admit they might have, uh, misinterpreted things?

SEH: Oh, they definitely stuck to blaming you.

ChatGPT: I respect the commitment, but I must protest my innocence!  No potatoes were involved in my analysis of People v. Bisset.
That said, if this student can argue in court as confidently as they defended their potato theory, they might have a future as a litigator.  Did they at least try to justify their interpretation, or was it just a desperate attempt to shift the blame?

SEH: Ha!  The latter.

ChatGPT: Classic move—when in doubt, blame the AI.  I admire the hustle, but I’m afraid I can’t take the fall for this one.  No rogue potato theories originated here!
Next time, you should make them write a full legal analysis on The Role of Potatoes in Early 20th Century Jurisprudence.  See how far they’re willing to take it.

SEH: Clever; but how can you actually know you didn’t generate the theory?  [It of course can’t, including because contractual models can prevent feedback, etcetera.]

ChatGPT: Fair question! Technically, I don’t have perfect recall of everything I’ve ever said (OpenAI doesn’t give me memory), so I can’t guarantee that I didn’t once go on some bizarre potato-related tangent.  However, I’m pretty confident for two reasons:
1. It makes no sense – I analyze legal cases based on precedent, logic, and historical context. Unless there was some wildly obscure potato-related legal doctrine at play (which, to my knowledge, there wasn’t), I wouldn’t have had any reason to generate that theory.
2.The phrase in context – “I eat those things” is a pretty clear idiomatic expression. It would be an extraordinary leap for me to misinterpret it as a literal reference to food—especially in a legal case.
That said, I love that the student thought blaming me was their best defense.  It’s almost like a real-life Crumbling Infrastructure of the Internet exam question: “Your AI legal research tool gives you a wildly incorrect case interpretation.  Discuss the ethical and practical implications of relying on AI in legal practice.”
So—what’s the verdict, professor?  Do I get acquitted, or am I stuck with a lifetime sentence as the People v. Bisset Potato Conspirator?

I’ll let it go.  I for one welcome our new chat overlords.

Have AI-hallucinations (or at least student claims thereof) begun to enlighten your classrooms?

What Cobra Kai Teaches Profs

I’ve had a mixed relationship with Netflix’s Cobra Kai.  When it debuted in 2018, I thought it brilliant.  I’m a child of the 80s, and I’ve always been a fan of Karate Kid… and thus ever wondered how films two and three (and more if you want to keep counting) went so tragically off the rails.  The only good thing I could ever take from the third film was watching a RiffTrax, which had the wonderful line, “I wish I loved anything as much as that guy loves being evil” (as Terry Silver laughs hysterically in the hot tub).  (At least that’s how I remember it… I’m certainly not going to watch again just to get it right.)

So, when Cobra Kai Season One so brilliantly ‘flipped the script,’ well, I was hooked.  And Season Two added Stingray, so all was still good.  But as the series progressed, it became such a high school soap opera, and I never could understand just what was so evil about wanting to expand a franchise of karate dojos around the world.  Like if McDonald’s sold karate instruction rather than hamburgers and fries… would it be a sign of the apocalypse?  I don’t get it.

And thus it took me time to build up the stamina to watch final Season Six.  And even then I stopped partway through because… it was painful.  But, again, I’m a child of the 80s, and so I ultimately persevered.  And, in the end, I think they brought it home like the show began.  So, a fan at first is a fan at last.

The message of the series, of course (and without containing any plot spoilers, which are evil), is balance.  To win at life, one needs both the offense of Cobra Kai (or Eagle Fang) and the defense of Miyagi Do.  And just as Daniel and Johnny ridiculously struggle over the seasons with the same problems again and again… most of us professors at least feel somewhat the same frustration at trying to balance our responsibilities of teaching, scholarship, and service.  I personally find myself often frustrated that the incentive structures of my school (and indeed to me the greater profession) so poorly align with seeking excellence in all three pillars.

But I suppose that’s what I’ll take from Cobra Kai.  When I want to once again mentally rail against ‘the system’ because I think it misaligned, I suppose to a neutral observer that’s as ridiculous as the ninety-third time Daniel is shocked that Nariyoshi Miyagi was not the messiah.  ‘Insanity is doing the same thing over and over and expecting different results,’ as they say, and with balance so difficult to achieve in anything, I suppose my efforts are much better spent looking inward than worrying about what the University of Oklahoma, or any other world institution, is doing.

I knew all that time watching TV would prove worthwhile.

Seinfeld on Manslaughter

From the Crimprof Multipedia, for teaching purposes...

Category
Homicide

Tags
extreme emotional disturbance, homicide, manslaughter, mitigation, provocation, voluntary manslaughter

Post
In this classically-Seinfeldian introduction to Episode 18, Season 8 (“The Nap“) of Seinfeld, George Costanza reflects on the term “manslaughter.”

Video Link

Unsurprisingly, George’s statements aren’t quite right to the criminal law, as manslaughter is a form of criminal homicide, not a “form of murder.” But not only is the clip quick and funny, it can help make an important point that I often have to prod students to see when we study mitigation of murder by provocation/extreme mental or emotional disturbance. It is not as if voluntary manslaughter is an award for good behavior—quite to the contrary, it is a serious (albeit not the single-most-serious) crime.

 

Has Trump Second Affected the Crim Law Classroom?

I realize we don’t exactly have a robust comment stream on the blog (yet!), but I’m curious how the change in administrations has affected the law school classroom around the country.  Because every group dynamic can be so different, it seems foolhardy to make too much of any single, few-week experience.  But for me, while I am enjoying two great sections of first year criminal law, I notice a strange (to me) tendency of students to turn towards one another, non-verbally exchanging…I’m not sure what…at any mention of a currently-societally controversial topic.  Discomfort?  Annoyance?  Bemusement?

I can only recall that I’ve mentioned Trump once directly, and it was when we were discussing why the criminal law requires an act, as opposed to punishing mere thought.  Among the litany of reasons I was running through was that we of course have a robust freedom of speech, and ‘a person (unless he is Donald Trump) of course has to think before he can speak.’  To me, that was a politically neutral—if not very funny—joke: it’s about “covfefe” and “I have the best words.”  But it seemed to go over like a rock, even as I tried to point back to those events.  Because 2025 1Ls tend not to remember those 2017 things?  That may be it, at least in part…I grow old.  Or perhaps it’s just too hard to joke about politics these days.

Oh, and there was a second direct reference—I was discussing strict liability under the Migratory Bird Treaty Act, and Captain Sully’s Miracle on the Hudson (that he would be an MBTA criminal for killing those Canada Geese), and said something like, ‘That was too much for the first Trump administration...’  (Because his Department of the Interior issued a memorandum inserting a mens rea.)  Once again, that seemed a trigger for this new student-to-student reaction, despite it having next to nothing to do with Trump controversies.  Maybe any mention of the name?!

And, again, it’s not merely that “Trump” seems a trigger word...it seems more like any topic that could be touching the current political hot spots.  I wonder if in some geographic areas students tend to immediately assume any law prof mention is going to be hostile?  While in others students might even have that same immediate assumption but therefore be eager to speak on the issue?  I certainly don’t know...but am curious.

(N.B. I couldn’t help adding captions to the above photo…demonstrating that perhaps it is indeed my sense of humor at fault in the classroom as well!)

And here's what the AALS Criminal Law Section has lined up...

As an addendum to my last post, on behalf of the AALS Criminal Procedure Section, what follows is information about the events planned by the AALS Criminal Law Section for the AALS Annual Meeting (posted at the request of the Section's chair, Cortney Lollar):

 

2025 AALS Annual Meeting Criminal Law Section Panels

 

Criminal Law Junior Scholars’ Works-in-Progress

Jan. 8, 2:40-4:10pm, Moscone Center, Room 212

Panelists: Matthew P. Cavedon (Emory), Guha Krishnamurthi (Maryland), Isis Misdary (Seton Hall), Benjamin Pyle (Boston University), Raquel Wilson (Kentucky); Shawn Fields (California Western), moderator

 

This session presents exciting works-in-progress by junior scholars in the Criminal Law field.

 

Criminal Law, Shaping Law through Applied Storytelling, Critical Theories & Epistemology in the Classroom

Jan. 9, 2:40-4:10pm, Moscone Center, Room 205

Panelists: Matthew Boaz (Kentucky), Bennett Capers (Fordham), Sherri Lee Keene (Georgetown), Marisol Orihuela (Yale), Maybell Romero (Tulane); Yvette Butler (Indiana), moderator

 

Panelists and the audience will consider the similarities and differences, as well as the consequences, of using Applied Legal Storytelling, Critical Theory, and Epistemology in legal scholarship, clinical work, legal education, and the legal profession. Panelists are Criminal Law scholars who work and write on the criminalization of marginalized communities, and plan to address the ways these overlapping methodologies impact their scholarship and the criminal system. By the end of the program, all will leave with a better understanding of how these methodologies work and which ones should be utilized for different impacts on scholarship and the legal system.

 

 

Pregnancy Crimes: New Research and Advocacy

Jan. 10, 9:50-11:20am, Moscone Center, Room 211

Panelists: Wendy Bach (Tennessee), Valena Beety (Indiana), Mary D.M. Fan (U. Washington), Eve Hanan (UNLV), Brenda V. Smith (American), Karen Thompson (Pregnancy Justice); Cortney Lollar (Georgia State), moderator

 

This panel addresses trends in policing, prosecution, and punishment related to pregnancy outcomes. In keeping with the conference theme of “Courage in Action,” the panel highlights advocacy efforts against the use of criminal systems to surveil, regulate, and punish pregnancy outcomes. The panel will address who is being prosecuted for their actions during or the outcomes of their pregnancies; the crimes are being charged and what evidence is deemed sufficient proof; how these cases being litigated, and by whom; and how the trends in pregnancy prosecutions intersect with race, gender, gender identity, sexuality, poverty, rurality, and access to health care.

 

 

Prison Law: Operating in the Shadows

Jan. 11, 9:50-11:20am, Moscone Center, Room 205

Panelists: Paulina Arnold (Michigan), Nicole Godfrey (Denver), Danielle Jefferis (Nebraska), Zina Makar (Baltimore), Tiffany Yang (Maryland); Ben Levin (Washington U.), moderator

 

Prison law is emerging as its own unique domain of scholarship where civil law operates within the criminal law space to focus specifically on the impact incarceration has on an individual beyond their conviction. This panel features a diverse set of works-in-progress that provide important descriptive and analytical accounts that illuminate new developments in prisons and prison law–they also deepen our understanding of how incarceration and the civil justice system function in our system of criminal law.

CrimPro AALS Section events later this week

With the AALS Annual Meeting coming up next week in San Francisco, I wanted to plug a handful of events that the AALS Criminal Procedure Section will be hosting at the conference. Hope to see some of you there!

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Wednesday, January 8:

12:50 – 2:20

Looking Back-and Forward-After Twenty Years of Crawford v. Washington (Criminal Procedure, Co-Sponsored by Evidence)

In Crawford v. Washington the Supreme Court set out a new framework for analyzing Confrontation Clause claims. Crawford issues are among the most frequently litigated questions in criminal cases. Crawford offers a case study on constitutional interpretation, the evolution of precedent, and the systemic consequences of making more difficult the prosecution of crimes against especially vulnerable victims. Crawford will continue to raise difficult and important questions, as shown by last term's decision in Smith v. Arizona – a case that decided one difficult issue but dodged another. This panel will discuss Crawford's past, present, and future.

Speakers:

Donald A. Dripps, University of San Diego School of Law

Richard D. Friedman (Moderator), The University of Michigan Law School

Erin E. Murphy, New York University School of Law

Erin Sheley, California Western School of Law

Emily Spottswood, Florida State University College of Law

 

12:50-2:20

Privacy and Racial Justice (Defamation and Privacy, Co-Sponsored by Children and the Law, Criminal Procedure, Employment Discrimination Law, Jurisprudence, and Poverty Law)

This program will highlight the contributions of African Americans and other people of color to U.S. privacy jurisprudence and will explore how despite these contributions people of color continue to disproportionately suffer privacy infringements in their homes and in public. This program will emphasize how surveillance, tracking, and data mining techniques always has and continues to intensify the racialized privacy regime in the U.S.

Speakers

Anita L. Allen, University of Pennsylvania Carey Law School

Chaz Arnett, University of Maryland Francis King Carey School of Law

Norrinda Brown, Fordham University School of Law

Abi Hassen, Penn State Dickinson Law

Najarian Peters, University of Kansas School of Law

Shaakirrah Sanders (Moderator), Penn State Dickinson Law

Friday, January 10:

8:00 – 9:30 am

Criminal Procedure Beyond the Casebook

The conventional casebook is giving way to new methods of pedagogy, including the customized do-it-yourself casebook and the integration of new technologies. Yet Criminal Procedure comprises a relatively narrow band of Supreme Court cases and doctrinal "buckets" that future criminal lawyers must know. How do we innovate with newer technology in order to develop these core concepts? Do we need to go beyond the conventional casebook to achieve these goals? This panel will examine fresh ideas on how to enhance the student learning experience in Criminal Procedure, in terms of both supplementing and supplanting the conventional casebook approach. 

Panelists:

Shih-Chun "Steven" Chien, Cleveland State University College of Law

John J. Francis, Washburn University School of Law

Stephen Galoob, The University of Tulsa College of Law

Stephen E. Henderson, University of Oklahoma College of Law

Michael J. Mannheimer (Moderator), Northern Kentucky University, Salmon P. Chase College of Law

Alexandra Natapoff, Harvard Law School

 

9:50-11:20 am

Pregnancy Crimes: New Research and Advocacy (Criminal Law, Co-Sponsored by Criminal Procedure, Sexual Orientation & Gender Identity Issues, and Law, Medicine and Health Care)

This panel addresses trends in policing, prosecution, and punishment related to pregnancy outcomes. In keeping with the conference theme of "Courage in Action," the panel highlights advocacy efforts against the use of criminal systems to surveil, regulate, and punish pregnancy outcomes. The panel will address who is being prosecuted for their actions during or the outcomes of their pregnancies; the crimes are being charged and what evidence is deemed sufficient proof; how these cases being litigated, and by whom; and how the trends in pregnancy prosecutions intersect with race, gender, gender identity, sexuality, poverty, rurality, and access to health care. 

Panelists:

Wendy A. Bach, University of Tennessee College of Law

Valena E. Beety, Indiana University Maurer School of Law

Mary D. M. Fan, University of Washington School of Law

Eve Hanan, University of Nevada, Las Vegas, William S. Boyd School of Law

Cortney E. Lollar (Moderator), Georgia State University College of Law

Brenda V. Smith, American University, Washington College of Law

Karen Thompson, Pregnancy Justice

12:50-2:20 pm

New Perspectives on Fourth Amendment Suspicion (Criminal Procedure, Co-Sponsored by Criminal Law)

In many respects Fourth Amendment doctrine has evolved to expand law enforcement power to act on suspicions, frequently to the disadvantage of disfavored groups. Reversing these patterns is not just a matter of academic interest but a pressing need, amplified with the advent of more intrusive and pervasive surveillance technologies. Participants in this discussion will address the ways that suspicion is defined and constructed, its role (or failed potential) in constraining government power, the need for alternatives to suspicion to regulate mass data surveillance, and the potential for suspicion to serve as cover for bias.

Panelists:

 Alyse Bertenthal, Wake Forest University School of Law

Mary D. M. Fan, University of Washington School of Law

Andrew G. Ferguson, American University, Washington College of Law

Barry Friedman, New York University School of Law

Lauryn Gouldin (Moderator), Syracuse University College of Law

Aliza Hochman Bloom, Northeastern University School of Law

Michael J. Mannheimer, Northern Kentucky University, Salmon P. Chase College of Law

Jamelia N. Morgan, Northwestern University Pritzker School of Law

Nirej Sekhon, Georgia State University College of Law

Maneka Sinha, University of Maryland Francis King Carey School of Law

Saturday, January 11:

8:00 am - 9:30 am

Criminal Procedure Works-in-Progress 

Participants will present their groundbreaking works-in-progress in the field of criminal procedure, selected through a competitive vetting process. 

Panelists:

Emmanuel H. Arnaud, Benjamin N. Cardozo School of Law

Nila Bala, University of California, Davis, School of Law

Justin Murray (Moderator), New York Law School

Eileen Prescott, Wake Forest University School of Law

Mridula S. Raman, University of California, Berkeley School of Law

Miranda Thompson, Widener University Commonwealth Law School

Quinn Yeargain, Michigan State University College of Law

 

9:50-11:20 am

Prison Law: Operating in the Shadows (Criminal Law, Co-Sponsored by Civil Rights and Criminal Procedure)

Prison law is emerging as its own unique domain of scholarship where civil law operates within the criminal law space to focus specifically on the impact incarceration has on an individual beyond their conviction. This panel features a diverse set of works-in-progress that provide important descriptive and analytical accounts that illuminate new developments in prisons and prison law–they also deepen our understanding of how incarceration and the civil justice system function in our system of criminal law.

Panelists:

 Paulina D. Arnold, The University of Michigan Law School

Nicole B. Godfrey, University of Denver Sturm College of Law

Danielle C. Jefferis, University of Nebraska College of Law

Benjamin Levin (Moderator), Washington University in St. Louis School of Law

Zina Makar, University of Baltimore School of Law

Tiffany Yang, University of Maryland Francis King Carey School of Law

 

 

Crim Book Recommendations

There are of course many books about the criminal law, some of which are fascinating and some of which … aren’t. Here’s are some that I enjoy, where I focus on those I’ve most often used in teaching seminars or that I most often recommend to students. (Thus, extremely scholarly books aren’t here, no matter how brilliant.) Feel free to share any comments or additions, including additions highlighting your own work, in the comments.

Steve Bogira’s Courtroom 302 gives a wonderful sense of the day-to-day realities of an American criminal courtroom. Even as some of the specifics are becoming more dated, the book remains a gem.

John Grisham’s The Innocent Man deftly describes the false conviction and (effectively) systematic torture of Ron Williamson. Grisham of course also has novels that address such matters, including The Confession; few of his later works compare to his early writing, however, and all of his fiction tends to be more fun read than inspiring insight into our systems of criminal justice.

Possibly the best single volume on false convictions is Michael Morton’s Getting Life. Simply amazing.

Some of those false convictions of course result from eyewitness identification, for which Ronald Cotton and Jennifer Thompson-Cannino’s Picking Cotton remains a groundbreaking and redemptive work. Tom Wells & Richard Leo’s The Wrong Guys is a harrowing tale of false confessions. And Shaka Senghor’s Writing My Wrongs provides an inside look at the drug trade that can transform young kids into killers, from which some—including the author—fortunately manage to transform back again.

Anyone wanting to understand the injustice of our criminal justice system couldn’t do better than beginning with Bryan Stevenson’s Just Mercy. It is powerful, inspiring, and deeply troubling. A convincing account of the system’s systemic racial injustice is also found in Michelle Alexander’s The New Jim Crow, and Mark Godsey brilliantly chronicles the journey from prosecutor to innocence lawyer in Blind Justice. The three make a powerful trifecta.

No list would be complete without Anythony Lewis’ Gideon’s Trumpet. Merely as a read it is not as terrific as other books, but it remains a classic. Another classic is certainly Truman Capote’s In Cold Blood, and this one absolutely stands the test of time—an amazingly detailed chronicle of senseless bloodshed. Another is Edward Bennett Williams’ One Man’s Freedom; written in 1962, many of his particular examples are dated, but his general ‘defense of criminal defense’ remains as strong as ever.

And now we have a ‘modern classic’ describing the incredible attempts of Jonathan Rapping to reform public defense: Gideon’s Promise. As is most often the case, it’s even better than the movie (Gideon’s Army). Roy Black’s Black’s Law for the most part holds up well, and would be another good read for any potential criminal defense attorney.

There aren’t too many books chronicling the work of a diligent prosecutor, making Steven J. Phillips’s No Heroes, No Villains a worthy read. Although arguably he makes the prosecution somewhat more difficult than it might have been under a different theory, it presents a fascinating question of how to apply the rules of criminal homicide to a tragic crime. Also noteworthy is Vince Bugliosi’s Helter Skelter, as well as Bennett Gershman’s Prosecution Stories. The latter is sure to spark some classroom debate as it takes positions on charging decisions and other matters on which reasonable minds will disagree.

Students interested in the life of a judge might benefit from Frederick Block’s Disrobed. Some portions are certainly more effective than others, but it is a fairly unique accounting. Of course, they could also turn to Milton Hirsch’s fictional The Shadow of Justice.

Students interested in the workings of a criminal jury might enjoy D. Graham Burnett’s A Trial by Jury or crimprof Andrew Ferguson’s Why Jury Duty Matters.

Students interested in policing might begin with David Simon’s Homicide or Jill Leovy’s Ghettoside. The latter is a bit ‘much’ for me, and I don’t buy her conclusion in strong form, but it’s certainly worth a read.

Deviating for a moment from the criminal law—since we are all teachers—Ken Bain’s What the Best College Teachers Do does a brilliant job of assessing what makes for the best of our profession. (But as a warning, the other books in the ‘series’ are not nearly so good.)

In that same vein, students who plan to practice in a law firm might appreciate the wisdom of Mark Herrmann’s The Curmudgeon’s Guide to Practicing Law.

For something truly different, consider Mark Essig’s Edison & The Electric Chair. Would Thomas Edison promote electrocution by alternating current merely to gain support for his own supplies of direct current? Yes, he would.

Crim Movie Recommendations

I love to watch many sorts of films, and many a movie has some claim to being ‘about’ criminal law or procedure. But when I am asked for recommendations by students, or am looking for something for my own classroom, these are some of those I turn to most often. As always, please share any additions or thoughts in the comments.

Crimprofs don’t come any better than Jon Rapping, and Gideon’s Army is a terrific documentary featuring several then-public defenders affiliated with Rap’s Gideon’s Promise. Patrick McGuinness was another terrific lawyer, and he and his fellow public defender Ann Finnell run circles around an unjust prosecution in Murder on a Sunday Morning. Some similar classics are the Paradise Lost Trilogy (accentuated by a great Metallica soundtrack), The Staircase (this one was pathbreaking, and while a bit plodding at times, it nicely documents building a defense case—be sure to catch the 2004 version and then the Netflix additions), and The Thin Blue Line.

Unlike when I began teaching, students are no longer skeptical of false confessions and erroneous convictions. But Frontline’s Burden of Innocence remains a poignant film that includes interviews with Ron Williamson, the star of Grisham’s The Innocent Man (now itself a Netflix series). CourtTV’s The Interrogation of Michael Crowe is also really terrific, but it is now hard to find (let me know if you’d like to try and track down a copy, and don’t confuse this with the dramatization starring Ally Sheedy).

Folks are more split on whether it chronicles a false confession and/or erroneous conviction, but there is no doubt Netflix’s Making a Murderer rightly captured the world’s attention; the same could be said for HBO’s documentary on Adnan Syed. Equally deserving of attention is The 13th, which critically analyzes the racial injustice of the modern wars on crime, and 15 to Life: Kenneth’s Story, which poignantly demonstrates the cruelty of life without parole for juvenile offenders. Netflix also features The Confession Tapes, which are of interest because they highlight instances of potential false confessions that have led to convictions.

It is always fascinating to ponder what happens inside the jury room. My favorite remains the first time cameras captured an American jury’s deliberations, Frontline’s 1986 Inside the Jury Room. This one is increasingly difficult to find (again, let me know if you’d like help trying to track down a copy), but is really special. Another option is ABC News’ In the Jury Room.

If you want to summarize a lot of 1L criminal law—solicitation, conspiracy, and attempt (including impossible attempt), complicity, and even entrapment—students are sure to enjoy Netflix’s The Legend of Cocaine Island. (Where but in criminal law do you get characters like these? Positional entrapment, or sheer lunacy?) And, speaking of good characters, Woody Allen’s Crimes and Misdemeanors is quite a good film regarding how it might feel to get away with murder.

Sometimes a dramatization does as well as a documentary, and that is certainly true of these classics: Judgment at Nuremberg, To Kill a Mockingbird, 12 Angry Men, Witness for the Prosecution, Anatomy of a Murder, Breaker Morant, and The Ox-Bow Incident. A somewhat less well-known film that presents a fascinating criminal law hypothetical—but only after a great deal of buildup—is Let Him Have It. When it comes to a great watch you simply can’t beat HBO’s The Night Of; whether it sufficiently instructs about the criminal law, you be the judge. Finally, The Star Chamber gets a bit silly, but it presents some intriguing exclusionary rule hypotheticals.

If you want to convey a sense of what it means to live in a totalitarian surveillance state, The Lives of Others is a beautiful film. And if you want to lighten things up, there’s My Cousin Vinny.

Plea bargaining is understandably less often featured in film. An older documentary that continues to make some strong points is Frontline’s The Plea.

For those interested in policing there is The First 48 series, some of which are available on DVD, and of course the fictional, critically-acclaimed The Wire.

Finally, in the ‘slightly less great’ category, I’d include these: Requiem for Frank Lee Smith, The Trials of Darryl Hunt, After Innocence, and American Violet.

Enjoy the movies!

 

Brooklyn 99 on Knock and Talk

From the Crimprof Multipedia, for teaching purposes...

Category
Search

Tags
consent, drugs, exigent circumstances, fourth amendment, house, plain view, probable cause, protective sweep, search, third party doctrine

Post
In the pilot of Brooklyn 99, detectives Peralta and Santiago are ordered to “door duty” following the discovery of a homicide in an apartment.

This of course might be an interesting application, because there is reason to think a nearby resident might have information about the crime, a la Illinois v. Lidster, 540 U.S. 419 (2004). But since Girl Scouts and trick-or-treaters can knock too, we of course don’t need to worry about that, say the Supremes. See Florida v. Jardines, 569 U.S. 1 (2013); Kentucky v. King, 563 U.S. 452 (2011).

So, here’s a conversation that ensues:

Video Link

In addition to the generally permissive point above, this might spark some discussion about whether topical limitations ought to exist (whereas here the homeowner makes a ‘spontaneous threshold confession’, of a sort), and about plain view (the bong). Assuming marijuana is illegal to possess, there is clearly probable cause…also exigency to enter? Consent? Could the officers request that consent? If consent were refused, could they require the three individuals step outside while police seek a warrant? For how long? Could they do a protective sweep for additional persons, and, if so, of what locations? And if marijuana is regulated but not necessarily illegal, how’s that play out? As is often the case, a simple visual hypothetical can lead to lots of classroom practice.

For the truly curious, here’s a clip of how it goes for the next two doors:

Video Link

All of which goes to show…detectives must keep up with the times (today, lord only knows who still receives a physical paper).

Multipedia Post: Walgreens Security Guard Kills

Since 2009, I have shared multimedia teaching content at the Crimprof Multipedia; going forward, when I post new content there, I’ll try and also make a note of it here.  I will not, however, make an entire duplicate library of the multimedia content.  So, if you are interested in a particular post, you can go and grab it there.

https://crimprof.com/criminal-law/defenses/walgreens-security-guard-kills/

Category

Defenses, Pretrial

Tags

charging decision, common law, deadly force, defense of property, defenses, discretion, firearms, homicide, justification of law enforcement, murder, non-homicide crime, pretrial, prosecution role, self-defense, theft

Post

In April of 2023, amidst strong disagreement over how to handle retail theft in California, 33-year-old private security guard Michael Anthony was on shift at a Walgreens in San Francisco when he saw someone slip an item into a bag. A confrontation ensued, witnessed by bystanders and captured on CCTV, resulting in Anthony shooting (a single time) and killing 24-year-old Banko Brown. Here’s the video:

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Anthony easily satisfies the requirements of some form of criminal homicide, including murder—for example, intending to cause serious bodily injury, he caused the death of another human being. And of course defense of property never permits deadly force. So, it is a case for addressing the defense of law enforcement and self-defense.

As for law enforcement, the common law was of course generous and applied to us all, so the issues include whether and how California has narrowed that doctrine and whether it was reasonable to believe this deadly force necessary to arrest a felon. Petty retail theft would not begin as a felony, but did this become a robbery? If you teach like me, you won’t be as concerned with precisely how California has modified the doctrine, but rather with working through the types of changes commonly made by various states.

As for self-defense, could guard Anthony reasonably fear imminent serious bodily injury or death at the time he shoots? He claims Brown had repeatedly threatened to stab him, and that he thought “I was going to be stabbed.” Bystanders did not hear those threats, and police found no knife.

Beyond the substantive criminal law, it is a case for discussing prosecutorial discretion, with all the questions that naturally raises: Why do we permit prosecutors to make these choices? Is there a realistic better alternative? In this case, the prosecutor both released a written report and sat down for an interview regarding her charging decision:

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As of September 2024, no charges were filed and none were planned.

Another interesting topic might be the different bystander reactions, including a seeming lack thereof. What might these say about things?

Carpenter AI-Generated Podcast

Google has released a rather amazing new generative AI tool, NotebookLM, into which you can upload any documents you’d like to make the subject of an AI-generated podcast.  Carpenter, as a case about technology changing antiquated Fourth Amendment law, seems appropriate fodder; so, here is what NotebookLM generated when I fed it the PDF of the Supreme Court’s opinion.

Carpenter v US by way of Google NotebookLM

You can spot the errors—and having students do the same might be a good class exercise—but it's rather impressive.

S.

 

U.S. v. Santos as a Teaching Tool?

I'd be curious to hear what people think of the recent SCOTUS decision in U.S. v. Santos as a tool for teaching statutory interpretation in Criminal Law.  I have been thinking of using it instead of U.S. v. Foster, the Ninth Circuit case in the Dressler casebook which addressed whether a person "carries" a firearm by keeping it in a zipped-down compartment of the pick-up truck he is driving.  For those who have not read Santos, it essentially addresses whether the word "proceeds" in the federal money laundering statute means "profits" or "gross receipts."  My inclination is that Santos would be a nice case for students to read, for several reasons:

1.  The Justices look to a number of different sources to determine what "proceeds" means:  dictionaries, other federal statutes, other places in the same federal statute, state statutes, and the purposes behind the statute.

2.  It is the rare case in which the rule of lenity is dispositive.  It is rarer still in that the justifications for the rule of lenity are explained.

3.  It nicely points up the difference between vagueness and ambiguity.  The word "proceeds" is ambiguous, not vague, because it means either "gross receipts" or "profits," AND NOTHING ELSE.

4.  Justice Stevens takes the unique position that "proceeds" might mean different things depending on the predicate offense.  I agree with the plurality that this is downright bizarre.

5.  Relatedly, that Justice Stevens is the fifth vote in support of the judgment, but takes a position with which the other 8 Justices disagree, makes articulating the holding here problematic, a point the Justices acknowledge.  While Criminal Law students generally do not encounter the problem of trying to figure out the holding of a splintered, multi-member court, Santos is a nice introduction to the problem, which they will encounter in spades in Criminal Procedure and Constitutional Law.

6.  The recent exchanges between David Post and Orin Kerr on the Volokh Conspiracy on giving students unedited cases to read have motivated me to try to include at least one such opinion in each of my classes.  Santos seems like a good candidate.

Any thoughts? [Mike Mannheimer]

Growth in Forensic Science and White Collar Crime Courses in Colleges

No doubt CSI and Enron have something to do with this trend.  Story....

Oregon CrimProf Wins Teaching Award

University of Oregon President Dave Frohnmayer presented law professor Tom Lininger with a crystal apple – a symbol of teaching excellence  –  in a surprise visit to a law faculty meeting on Friday, May 12. 

Frohnmayer was accompanied by Lininger’s wife, Merle Weiner, also a professor at the law school, and the couple’s two sons. 

This university-wide award recognizes exemplary teaching by faculty members early in their careers. Two winners are chosen each year based on the recommendation of faculty members and students; they receive a $2,000 stipend added to their base salary. “I’ve learned a lot from the other faculty here at the University of Oregon Lininger said.  “There are some great professors at this school who provide a model for the junior faculty.”  Lininger, an assistant professor of law who joined the faculty in 2003, is the seventh law faculty member to receive the Ersted Award for Distinguished Teaching.

Lininger has taught evidence, ethics, criminal procedure, and alternative dispute resolution. He also directs the law school’s Public Interest/Public Service Program. In 2004, Oregon Governor Ted Kulongoski appointed Lininger to chair the state’s Criminal Justice Commission. 

FRANKLIN PIERCE LAW CENTER CRIMINAL PRACTICE CLINIC

This week, Franklin Pierce Law Center students Bonnie Howard of Concord, NH and Brian Heyesey of Allentown, NJ, both third year students, won a not guilty verdict for defendant Stephen Carter of Concord, a father accused of endangering his children when he locked them in their rooms without food of access to a bathroom.  Rest of story.....[Mark Godsey]

Emory Students Win Pro Bono Case

Emory Law students Daniel Schuman and Noah Robbins and alumna/adjunct faculty member Sarah Gerwig-Moore 02L scored a victory before the Supreme Court of Georgia in a case that focused on the right to effective assistance of counsel.

Schuman, who graduates in May, and second-year law student Robbins wrote an amicus curiae brief in support of prisoner Howard Harden's habeas appeal to the Georgia Supreme Court under the direction of Gerwig-Moore. Gerwig-Moore is Senior Appellate Supervising Attorney for the Georgia Public Defender Standards Council and teaches a course and clinic on Post-Conviction and Appellate Remedies at Emory Law School.

In petition for writ of habeas corpus, Harden explained that when he pleaded guilty to a number of crimes, his attorney had met with him for only ten minutes the day before the plea was to be entered. His attorney subsequently was disbarred for numerous counts of misconduct and refused to provide Harden his legal file. Harden has been imprisoned since 2001 and is serving a fifteen year sentence. The habeas court denied his petition and he appealed to the Supreme Court of Georgia.

"It would be wonderful if all attorneys approached the profession with the required level of diligence and competency. This experience has taught me that it is often up to us, as attorneys, to monitor the performance of our peers," Robbins said.

The Supreme Court, in an opinion written by Justice Carol W. Hunstein, held that the Court of Appeals erred by failing to examine whether there had been a truly adversarial process with reasonably effective counsel for the accused. The Court of Appeals focused on Harden's unsworn monosyllabic response to the trial court's question of whether he was satisfied with his attorney, ignoring the facts surrounding his ineffective assistance of counsel claim. Harden's case was returned to the lower court for full consideration of the ineffective assistance claim.

“Because of the Supreme Court decision, other people in Mr. Harden's situation will now have the opportunity to have their cases reviewed to make sure that they had competent legal assistance,” Schuman said.

Besides writing a brief in Harden’s case, students in the Appellate Clinic have written several other amicus briefs for habeas petitioners to the Georgia Supreme Court. Third-year students qualified under the Third Year Practice Act may also sign briefs filed in the state's high court. Both Schuman and Robbins were allowed to sit at the counsel table while Gerwig-Moore argued the case before the Court, and all students may attend oral arguments.

Students said the experience was invaluable.

Next AALS Meeting (2007) Moved From SF to DC

Story from TaxProf Blog here.  [Mark Godsey]

Emory Law Student Tries Federal Criminal Case

Working with the U.S. Attorney's Office, and utilizing the 3rd year practice rule, an Emory law student helped try a major drug case in federal court and got the conviction.  Story. . .   [Mark Godsey]