Dead Again: The Latest Demise of the Confrontation Clause

In Crawford v. Washington, the Supreme Court abandoned its Roberts “reliability” approach to the right of confrontation. The Court conceded that the Roberts decision had killed the Confrontation Clause by: (1) impermissibly tying the right of confrontation to the rule against hearsay; (2) inappropriately allowing pretrial determinations of reliability to replace actual cross-examination at trial; (3) relying too heavily on malleable, multi-factor balancing tests; and (4) completely failing to constrain judicial discretion. Since Crawford, however, the Court has decided Davis v. Washington and Michigan v. Bryant. Unfortunately, in the course of deciding those cases the Court has once again killed the Confrontation Clause. More specifically, the Court has developed yet another framework that incorporates every single one of Roberts’s flaws, including its failure to constrain judicial discretion. This Essay exposes the underlying reasons for the Court’s failure, offers a solution to the problem, and provides suggestions for the Court when deciding future cases that involve the constitutional rights of criminal defendants

Law Review Publishing: Thoughts on Mass Submissions, Expedited Review, and Potential Reform

The current law review publishing system—in particular, mass submissions and expedited review—works well for prestige-driven professors; however, it places a tremendous burden on the editors of journals lower in the hierarchy. This problem is exacerbated by several professorial tactics including, most significantly, submitting articles to journals from which the professor would never accept an offer—not even when he or she fails to receive a “better” offer through the expedite process. This Essay discusses a potential fix: the eight-hour offer window. If a journal were to adopt a formal policy of holding its publication offers open for only eight hours, professors would, in theory, be unable to use the offer in the expedite process. Therefore, professors would not submit their articles to this journal unless and until they were serious about publishing in it. Unfortunately, what is good in theory does not always work in practice. This Essay discusses how professors would modify their existing tactics—tactics which currently include misrepresenting the terms of an offer in the expedite process—in order to defeat this attempted reform. The Essay also explores specific ways that a journal could overcome these tactics and implement meaningful reform despite the professoriate’s desire to protect the status quo

Economics Perspective on the Exclusionary Rule and Deterrence, An

This Article will demonstrate that the exclusionary rule does not and cannot deter police misconduct. The reason is that the expected cost to the police of their own misconduct (p*C) is nearly always zero. More specifically, the probability that the evidence will be suppressed (p), even in cases of egregious police misconduct, is very close to zero. Additionally, even in the rare case that evidence is suppressed, the cost to the police of a lost conviction (C) is nearly always zero for several reasons: first, the police tend to value arrests, not convictions; second, even if they did value convictions, suppressed evidence does not necessarily mean the conviction is lost; and third, often the police have nothing to lose when they choose to commit misconduct - that is, the conviction would not even be possible unless the police commit the misconduct in the first place. Finally, in addition to the very low probability that evidence will be suppressed (p) and the very low cost to the police of a lost conviction (C), there are simply no effective secondary sanctions to fill the void and deter police misconduct. Therefore, the benefit to the police of their misconduct (B) will nearly always exceed the expected costs of the same misconduct (p-C). The economic theory of criminal sanction, therefore, answers the question in the negative: the exclusionary rule does not, and cannot, deter police misconduct. As a result, this Article argues that the application of the exclusionary rule should not be limited or affected in any way by the fallacious concept of deterrence. Further, the exclusionary rule should neither be eliminated nor be replaced with an alternative remedy. Instead, other important societal concerns previously ignored by the Court - concerns such as the integrity of the judiciary and remedying the individual that was actually harmed by the police misconduct - mandate that the exclusionary rule be made inseparable from the underlying constitutional right it was designed to protect. As a result, evidence should be excluded from any subsequent criminal trial whenever a citizen\u27s Fourth Amendment rights are violated

Reasonable Doubt and Relativity

In theory, the Constitution protects us against criminal conviction unless the state can prove guilt beyond a reasonable doubt. In reality, this lofty standard is only as strong as the words used to explain it to the jury. Unfortunately, attempts to explain reasonable doubt often create confusion, and sometimes even diminish the burden of proof. Many courts therefore believe that the better practice is not to attempt a definition. However, empirical studies demonstrate that reasonable doubt is not self-defining, i.e., when it is not explained to the jury, it offers defendants no greater protection against conviction than the two lower, civil burdens of proof. To solve this dilemma, courts should explain reasonable doubt on a relative basis, within the context of the civil burdens of proof. A relative, context-based instruction will allow jurors to compare and contrast the different standards, thus giving them the necessary reference points to appreciate how high the state’s burden actually is. This approach is rooted in a psychological principle called “contrast effects,” and is now supported by empirical evidence as well. In this Article, I present the results of my controlled experiment where mock jurors read the identical case summary of a criminal trial and were then randomly assigned to two groups, each of which received a different reasonable doubt instruction. The group that received the relative, context-based instruction acquitted at a rate 30 percent higher than the group that received a simple, undefined instruction. This result was significant at p \u3c .05. Further, participants that received this relative, context-based instruction required a higher subjective confidence level in the defendant’s guilt before they were willing to convict. Drawing on this and other behavioral research, this Article presents a comprehensive jury instruction on the presumption of innocence and burden of proof that is designed to fulfill the Constitution’s promise: to ensure that defendants remain free of conviction “except upon proof beyond a reasonable doubt.

Combating Judicial Misconduct: A Stoic Approach

Judicial ethics rules require criminal court judges to be competent, even-tempered, and impartial. In reality, however, many judges are grossly ignorant of the law, incredibly hostile toward the defense, and outright biased in favor of the state. Such acts of judicial misconduct pose serious problems for the criminal defense lawyer and violate many of the defendant’s statutory and constitutional rights. This Article presents a framework for the defense lawyer to use in combating judicial misconduct. The approach is rooted in a principle of Stoic philosophy called “negative visualization.” That is, the lawyer should anticipate and visualize judicial incompetence, hostility, and bias within the context of the client’s case. This Stoic practice has two primary benefits. First, by envisioning such problems before they occur, the defense lawyer may be able to prevent some of them from happening in the first place. Toward that end, this Article identifies several preemptive legal strategies to prevent the unethical judge from infecting the client’s case. Second, envisioning acts of judicial ignorance, hostility, and bias before they occur will render them less of a shock when they do occur in the middle of trial, in front of the jury, and in a full courtroom. This, in turn, allows the defense lawyer to remain calm in the face of adversity and formulate an effective response to protect the client. Toward that end, this Article identifies several responsive legal strategies for the lawyer to use when confronted with judicial misconduct in the courtroom. The criminal defense lawyer who steps into the courtroom naively assuming the trial judge will perform and behave ethically does his or her client a tremendous disservice. On the other hand, the defense lawyer who anticipates and prepares for judicial incompetence, aggression, and bias will be in a better position to protect the defendant’s important statutory and constitutional rights

Preliminary-Hearing Waivers and the Contract to Negotiate

Plea bargaining often begins very early in a criminal case—sometimes before the preliminary hearing, or “prelim,” is held. Be-cause of the time, effort, and risk involved in holding a prelim, the prosecutor may make the defendant a prelim waiver offer. That is, if the defendant agrees to waive the prelim, the prosecutor will hold a particular plea offer open for the defendant’s future consideration. Such prelim waiver offers may be skeletal, at best, but will often include the promise of “future negotiations” to fill in the details. When the prosecutor obtains the defendant’s prelim waiver for the promise of future negotiations, the parties have entered into a legally binding agreement known as a “contract to negotiate.” Despite this, after a prosecutor induces the defendant to waive the prelim, the prosecutor may then refuse to negotiate in good faith—or at all. This is a breach of the contract to negotiate, and the defendant is entitled to a remedy. Defense lawyers may mistakenly overlook a prosecutor’s breach in this situation, as the two classic remedies for a plea-bargain breach—i.e., plea withdrawal and re-sentencing—don’t fit in these circumstances. Instead, the failure to negotiate is akin to a failure to prosecute, and numerous sources of law provide a variety of remedies. These include dismissal of the case with or without prejudice, dismissal of felony charges, or at least a remand for a preliminary hearing. This Article discusses these remedies and provides a model motion seeking relief from the prosecutor’s breach