\u3cem\u3eMiranda\u3c/em\u3e and the Media: Tracing the Cultural Evolution of a Constitutional Revolution

This article explores the depiction of interrogation in film and television from the 1940s to the present, and contrasts that imagery with the Supreme Court\u27s interrogation jurisprudence over the same time frame. Although my treatment of the subject is necessarily only fragmentary (a comprehensive review of either topic would fill many volumes), this article hazards a few tentative hypotheses

Abolishing Jailhouse Snitch Testimony

Jailhouse snitch testimony is inherently unreliable. Snitches have powerful incentives to invent incriminating lies about other inmates in often well-founded hopes that such testimony will provide them with material benefits, including in many cases substantial reduction of criminal charges against them or of the time they are required to serve. At the same time, false snitch testimony is difficult, if not altogether impossible, for criminal defendants to impeach. Because such testimony usually pits the word of two individuals against one another, both of whose credibility is suspect, jurors have little ability to accurately or effectively assess or weigh the evidence. Moreover, research suggests that jurors frequently succumb to fundamental attribution error and unwittingly fail to properly discount the reliability of evidence supplied by biased and self-interested witnesses. Although a few jurisdictions have placed modest limits on jailhouse snitch testimony, no jurisdiction has banned jailhouse snitch testimony outright, relying instead on the traditional tools of trial practice – cross-examination and post-conviction review – to screen out unreliable evidence and safeguard defendants’ rights. These methods, however, are plainly insufficient, as demonstrated by the mounting evidence of wrongful convictions resulting from false snitch testimony. The only truly effective solution is the flat preclusion of jailhouse snitch testimony. The doctrinal infrastructure already exists to permit courts to move in this direction; the Supreme Court’s longstanding preclusion of coerced confession evidence provides a precedent readily applicable to confession evidence provided by jailhouse snitches. Although constitutionally-based exclusion of jailhouse snitch evidence is warranted, in all likelihood, change in this area will come, if it does, not through the courts but instead through legislative or executive action to take meaningful steps to reduce wrongful convictions

Temporary Insanity: The Strange Life and Times of the Perfect Defense

The temporary insanity defense has a prominent place in the mythology of criminal law. Because it seems to permit factually guilty defendants to escape both punishment and institutionalization, some imagine it as the “perfect defense.” In fact, the defense has been invoked in a dizzying variety of contexts and, at times, has proven highly successful. Successful or not, the temporary insanity defense has always been accompanied by a storm of controversy, in part because it is often most successful in cases where the defendant’s basic claim is that honor, revenge, or tragic circumstance – not mental illness in its more prosaic forms – compelled the criminal act. Given that the insanity defense is considered paradigmatic of excuse defenses, it is puzzling that temporary insanity also functions as a sort of justification defense. This Article seeks to solve that puzzle by canvassing the colorful history and the conceptual function of the defense. Ultimately, it argues that temporary insanity should be viewed as an equitable doctrine that provides relief where the traditional legal rules exclude or are inadequate to the defendant’s particular circumstances. Because the temporary insanity defense permits juries to resolve difficult cases in a manner consistent with the deep purposes of the criminal law, it is misleading to conceptualize that defense as merely a nullification doctrine

Abolishing Jailhouse Snitch Testimony

Jailhouse snitch testimony is inherently unreliable. Snitches have powerful incentives to invent incriminating lies about other inmates in often well-founded hopes that such testimony will provide them with material benefits, including in many cases substantial reduction of criminal charges against them or of the time they are required to serve. At the same time, false snitch testimony is difficult, if not altogether impossible, for criminal defendants to impeach. Because such testimony usually pits the word of two individuals against one another, both of whose credibility is suspect, jurors have little ability to accurately or effectively assess or weigh the evidence. Moreover, research suggests that jurors frequently succumb to fundamental attribution error and unwittingly fail to properly discount the reliability of evidence supplied by biased and self-interested witnesses. Although a few jurisdictions have placed modest limits on jailhouse snitch testimony, no jurisdiction has banned jailhouse snitch testimony outright, relying instead on the traditional tools of trial practice – cross-examination and post-conviction review – to screen out unreliable evidence and safeguard defendants’ rights. These methods, however, are plainly insufficient, as demonstrated by the mounting evidence of wrongful convictions resulting from false snitch testimony. The only truly effective solution is the flat preclusion of jailhouse snitch testimony. The doctrinal infrastructure already exists to permit courts to move in this direction; the Supreme Court’s longstanding preclusion of coerced confession evidence provides a precedent readily applicable to confession evidence provided by jailhouse snitches. Although constitutionally-based exclusion of jailhouse snitch evidence is warranted, in all likelihood, change in this area will come, if it does, not through the courts but instead through legislative or executive action to take meaningful steps to reduce wrongful convictions

\u3cem\u3eMiranda\u3c/em\u3e and the Media: Tracing the Cultural Evolution of a Constitutional Revolution

This article explores the depiction of interrogation in film and television from the 1940s to the present, and contrasts that imagery with the Supreme Court\u27s interrogation jurisprudence over the same time frame. Although my treatment of the subject is necessarily only fragmentary (a comprehensive review of either topic would fill many volumes), this article hazards a few tentative hypotheses

Dissent and the Rule of Law

Both the right to dissent and the “rule of law” are celebrated and frequently invoked values. Yet widespread popular dissent, such as that seen in the recent Black Lives Matter protests sparked by the police killing of George Floyd and others and a strong backlash against protestors by some political leaders, has deeply challenged the compatibility of those values. This tension raises deep theoretical questions about the essential concept of the rule of law, questions that have not yet been addressed by legal theorists. Consensus is greatest with respect to some of the formal characteristics of the rule of law, and formal definitions of the rule of law focus on formal properties of governance by law, primarily properties associated with the legality principle. Yet many reject the formal definition as overly neutered, contending instead that if it is to mean anything, the concept of the rule of law must not merely restate formal principles of legality, but instead must also include some substantive content, such as a minimum respect for private property or basic human rights. While both sides of this debate make important points, I contend in this Essay that there is a critical middle ground between the two positions. While the concept of the rule of law may not necessarily incorporate the entire spectrum of civil and political rights, the very logic of the rule of law demands respect for and adherence to a core set of substantive values beyond the merely formalistic properties of legality identified by legal philosophers like Joseph Raz. At the same time, the concept of the rule of law is not, as the formalists correctly argue, infinitely pliable. It cannot be made to stand for all things thought desirable by critics and interlocutors in political debate. But the parameters of the rule of law concept need not be arbitrarily drawn. Rather, they are inherent in the concept itself. What we discover when we examine what lies at the intersection of the formalist and substantivist approaches is a core set of overlapping rule of law project. This key substantive component is toleration of and respect for the practice of dissent

Rules, Standards, Sentencing, and the Nature of Law

Sentencing law and practice in the United States can be characterized as an argument about rules and standards. Whereas in the decades prior to the 1980s when sentencing was largely a discretionary activity governed only by broad sentencing standards, a sentencing reform movement in the 1980s transformed sentencing practice through the advent of sentencing guidelines and mandatory minimum provisions. As a result, sentencing became far less standard-like and far more rule-like. Although reform proponents believed that this rulification of sentencing would reduce unwarranted sentencing disparities and enhance justice, it is far from clear that these goals were achieved. Indeed, the debate between sentencing reformers and their critics is a paradigmatic illustration of the limits of relying upon modifications of legal form to enhance substantive justice. Building upon the work of legal theorists who have considered the rules versus standards conundrum, this article uses sentencing law as a lens to view some of the fundamental perplexities that bedevil law\u27s grander aspirations - for determinacy, fairness, even coherence itself. Because, it is argued, refinements in legal form will never achieve the substantive goals to which law strives, the Essay urges a turn away from formal equality and toward a conception of sentencing justice that is centered on process values such as respect for those affected by sentencing decisions, concern that all voices be adequately heard, and decision making that reflects the considered moral judgment of the decision maker

Signaling and Plea Bargaining\u27s Innocence Problem

The dominant theoretical model ofplea bargainingp redicts that, under conditions of full information and rational choice, criminal cases should uniformly be settled through plea bargaining. That prediction holds for innocent and guilty defendants alike. Because it is perfectly rational for innocent defendants to plead guilty, plea bargaining might be said to have an innocence problem. Plea bargaining\u27s innocence problem is, at bottom, the result of a signaling defect. Innocent defendants lacking verifiable innocence claims are pooled together with guilty defendants who falsely proclaim innocence. As a result, both groups of defendants are treated similarly at trial and in plea bargaining. Signaling defects, however, at least in theory, can be overcome. As economists have observed, a variety of signaling mechanisms reliably communicate nonverfiable information among parties. This Article considers one such signaling mechanism, subwagers, and attempts to demonstrate their capacity to signal the kind ofprivate information typical in the plea bargaining context. Not only are subwagers theoretically possible, the Article argues that police interrogation already functions as such a subwager. The Article addresses the theoretical basis and empirical evidence supporting the hypothesis regardingi nterrogation\u27si mportanti mpact on plea bargaining, and concludes that plea bargaining theory must be modified to take account of the effects of subwager-type signaling