13203 research outputs found
Sort by
Evidence on Fire
Get PDFFire science, a field largely developed by lay “arson investigators,” police officers, or similar first responders untrained in chemistry and physics, has been historically dominated by unreliable methodology, demonstrably false conclusions, and concomitant miscarriages of justice. Fire investigators are neither subject to proficiency testing nor required to obtain more than a high school education. Perhaps surprisingly, courts have largely spared many of the now debunked tenets of fire investigation any serious scientific scrutiny in criminal arson cases. This Article contrasts the courts’ ongoing lax admissibility of unreliable fire-science evidence in criminal cases with their strict exclusion of the same flimsy evidence in civil cases, notwithstanding that both criminal and civil courts are required to operate under the same exclusionary rules for expert evidence.
Judges are capable of ensuring that the forensic science evidence they admit at trial is reliable in both criminal and civil proceedings. In addition, the law mandates that they do so. The Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc. demand the application of the same standards to vet the admissibility of expert evidence in criminal and civil cases. Moreover, Kumho Tire v. Carmichael expands that mandate to exclude capricious forensic evidence regardless of whether it is characterized as scientific or technical. Unfortunately, thirty-one states have failed to embraced the holding of Kumho Tire. As a result, litigants are not entitled to raise Daubert challenges to fire evidence that courts deem technical, rather than scientific, knowledge in the overwhelming majority of American jurisdictions.
The ongoing admission of flawed fire science in criminal litigation brings us back to the problem Daubert sought to address: the courts’ failure to exclude junk science in American trials. Criminal courts must follow their civil counterparts and rigorously enforce gatekeeping procedures when prosecutors proffer questionable forensic “science” evidence in order to secure a conviction. Moreover, criminal defense attorneys must invoke Daubert and challenge unreliable forensic science during the trial proceedings. As several courts have held, the failure to do so falls below the constitutional requirements that attend to effective advocacy
Technologically Distorted Conceptions of Punishment
Get PDFMuch recent work in academic literature and policy discussions suggests that the proliferation of actuarial — meaning statistical — assessments of a defendant’s recidivism risk in state sentencing structures is problematic. Yet scholars and policymakers focus on changes in technology over time while ignoring the effects of these tools on society. This Article shifts the focus away from technology to society in order to reframe debates. It asserts that sentencing technologies subtly change key social concepts that shape punishment and society. These same conceptual transformations preserve problematic features of the sociohistorical phenomenon of mass incarceration. By connecting technological interventions and conceptual transformations, this Article exposes an obscured threat posed by the proliferation of risk tools as sentencing reform. As sentencing technologies transform sentencing outcomes, the tools also alter society’s language and concerns about punishment. Thus, actuarial risk tools as technological sentencing reform not only excise society’s deeper issues of race, class, and power from debates. The tools also strip society of a language to resist the status quo by changing notions of justice along the way
Extraterritoriality in the Public and Private Enforcement of U.S. Regulatory Law
No full textProfessor Buxbaum contributed Chapter 9, Extraterritoriality in the Public and Private Enforcement of U.S. Regulatory Law.https://www.repository.law.indiana.edu/facbooks/1213/thumbnail.jp
Harm, Sex, and Consequences
Get PDFAt a moment in history when this country incarcerates far too many people, criminal legal theory should set forth a framework for reexamining the current logic of the criminal legal system. This Article is the first to argue that “distributive consequentialism,” which centers the experiences of directly impacted communities, can address the harms of mass incarceration and mass criminalization. Distributive consequentialism is a framework for assessing whether criminalization is justified. It focuses on the outcomes of criminalization rather than relying on indeterminate moral judgments about blameworthiness, or “desert,” which are often infected by the judgers’ own implicit biases. Distributive consequentialism allows for consideration of both the harms of the conduct and the harms of criminalization itself. It brings an intersectional approach to criminal legal theory by examining the distribution of harm, centering the experience of populations that face intersectional forms of subordination, and viewing the criminal legal system suspiciously. This Article adopts a distributive consequentialist analysis to examine the continued criminalization of sex work as just one example of how the theory can be applied. This application demonstrates how engaging in a distributive consequentialist analysis is a step toward reining in a system that seems to be ever-expanding and reframing a criminal legal theory that has grown ambivalent about this expansion
Rethinking Social Resistance Through the Consolidating Politics of Humanitarian Populism in Mytilene, Greece
Get PDFDuring the spring of 2015, thousands of migrants began to arrive daily on the shores of Lesvos, Greece, from nearby Turkey. As the Greek government and the European Union (EU) monitored the unfolding situation, diverse ad hoc humanitarian projects flourished on the island. These projects enacted a field of action grounded in intersecting, concerning effects and values of care. This essay considers the challenges these projects posed to the local, national, and transnational humanitarian apparatus that eventually moved in and attempted to regulate these players. Drawing on recent work in anthropology on sense and critical agency, I discuss these challenges as a mode of social resistance that evokes a populist expression of the political. Two specific examples are discussed drawing on my recent ethnographic fieldwork in Mytilene, the capital city of Lesvos
Reporting That Matters: A Comparative Law Study on Probation Officers in the Juvenile Justice Systems of the United States and the Republic of Ireland
Get PDFDevotion ̶t̶o̶ and the Rule of Law: Acknowledging the Role of Religious Values in Judicial Decision-Making
Get PDFThis Comment advocates for the acknowledgment of religious values in judicial decision-making in three parts. Part I explores the role of religion in American politics, and more specifically, the role of religion in federal judicial confirmation hearings and state-level judicial elections. Membership to an institutionalized religion often performs an essential gatekeeping function when it comes to assessing the background or personal values of a candidate for political or judicial office. The initially positive role of religion in judicial selection processes suggests that the practice of refusing to acknowledge the role that religion likely already plays in judicial decision-making is wholly cosmetic. This skin-deep predilection only leads to the concealment of religious values in judicial decision-making, and such concealment benefits neither judge nor litigant.
Part II considers arguments for and against acknowledging the role of religion in judicial decision-making. Specifically, Part II looks to arguments proffered by Judge Lipez, Judge Wendell L. Griffen, Scott C. Idleman, and the late Judge Marion Callister in Idaho v. Freeman in favor of acknowledgment, and former New Mexico Supreme Court Justice Gene E. Franchini, Bruce A. Green, and Derek H. Davis in favor of maintaining the faux secular status quo. Part III recommends changes to Rule 2.4 of the Model Code, as well as Canons 3(A)(1) and 3(C)(1) of the Code of Conduct. I propose adding language to the Comment to Rule 2.4, which governs external influences on judicial conduct,26 to distinguish between appropriate consultation with extralegal sources and inappropriate supplanting of the law with extralegal sources. I propose entirely new commentary for Canon 3(A)(1), which governs a federal judge’s performance of her adjudicative responsibilities,27 and Canon 3(C)(1), which governs disqualification,28 respectively, to reiterate two ideas highlighted in this Comment. First, faithfulness to the law does not preclude consultation with extralegal sources; and second, determinations of judicial impartiality are based on the “disinterested observer” standard29—not the perceptions of the parties appearing before a judge
