Three Forthcoming Articles of Interest: Are Prior Convictions Valid Impeachment? Should Judges Talk to Jurors More? Do Liberal Procedures Lead to Punitive Substance?
“Impeachmentby Unreliable Conviction” Boston College Law Review, Forthcoming
ANNA ROBERTS (Seattle University School of Law)
“JudgesTalking to Jurors in Criminal Cases: Why U.S. Judges Do it so Differently fromJust About Everyone Else” Arizona Journal of International and Comparative Law
PAUL MARCUS (William & Mary Law School)
“DoesLiberal Procedure Cause Punitive Substance? Preliminary Evidence from SomeNatural Experiments” Southern California Law Review, Forthcoming
DONALD A. DRIPPS (University of San Diego School of Law)
Abstracts after the jump.
“Impeachmentby Unreliable Conviction”
Boston College Law Review, Forthcoming
ANNA ROBERTS, Seattle UniversitySchool of Law
ThisArticle offers a new critique of Federal Rule of Evidence 609, which permitsimpeachment of criminal defendants by means of their prior criminalconvictions. The Article draws on three aspects of the contemporary criminaljustice system to show that in admitting convictions for impeachment courts arewrongly assuming that they are necessarily reliable indicators of relativeculpability. First, courts assume that convictions are the product of a fairfight, despite the adversarial collapse revealed by the nature ofplea-bargaining, the crisis in public defense, and the data on wrongfulconvictions; second, courts assume that convictions demonstrate relativeculpability, despite the racial and other disparities that pervade lawenforcement; third, courts assume that convictions connote moral culpability,despite the growth in prosecutions that require no culpable mental state. ThisArticle proposes that before a conviction is used for impeachment, there shouldbe an assessment of the extent to which it is a reliable indicator of relativeculpability.
In support of its proposals, this Article draws two new sources into theimpeachment context. First, in a groundbreaking sentencing opinion, Judge NancyGertner refused to give the prescribed weight to the defendant’s priorconvictions, since she feared that they were the product of racial profilingand that she would be compounding disparities. Second, the prosecution’sethical duty to ‘do justice’ militates in favor of a prosecutorial assessmentof a conviction’s reliability before proffering it for impeachment. Throughthese kinds of judicial and prosecutorial inquiry, the law of impeachment willhew more closely to the realities of the criminal justice system, and tojustice itself.
“JudgesTalking to Jurors in Criminal Cases: Why U.S. Judges Do it so Differently fromJust About Everyone Else”
Arizona Journal of International and Comparative Law, Vol. 30, No. 1,2013
PAUL MARCUS, William & MaryLaw School
Finally,the evidence has all been heard, the lawyers have given closing arguments tothe jurors, and now it is up to the trial judge; it is her turn. Of course, shewill instruct the jury on the law, no question about that. But this was a verylengthy multiple defendant trial. That experienced, savvy trial judge is nodoubt tempted to go beyond stating to the jurors the mere legal rules (theusual jury instructions). She might also prefer to talk with them about theevidence: comment on particular items, summarize the overall evidence and thearguments put forth by the lawyers on both sides. After all, we all want to becertain that these lay people understand just what this case was all about. Andwho better to tell them about the evidence than the judge? If this judge sitsin the United States, she had better resist that temptation. Otherwise, she isvery likely to be reversed on appeal, perhaps even disciplined. But, elsewherein the common law world, that judge would not be at all concerned about goingbeyond the giving of jury instructions. In fact, if she does not, she is likelyto be reversed on appeal, perhaps even disciplined.
Why the difference between U.S. judges and judges from other common law basednations, with similar roots in the English criminal justice system? AreAmericans really that different from their English-speaking cousins on thispoint? What explains that difference? And which nation gets it right? Those arethe questions I attempt to answer in this article.
To do so, I take an unconventional approach. I discuss the well-establishedlegal principles one finds in cases, statutes, and rules in the five focalnations of Australia, Canada, England, New Zealand, and the United States. Inmy research, however, I sought to go beyond this, to find out the way in whichthe practice really occurs. In short, I was trying to determine whether thetrial judges truly acted so very differently in the various nations. I was intouch with more than eighty individuals in these five nations. Most I knew; allwere experienced in the world of criminal justice, as trial or appeals judges(state or federal), prosecution or defense lawyers, or academics who eitherleft the practice or studied it carefully. I met with them, or spoke with themon the phone, or corresponded with them, or exchanged email messages. Thisarticle lays out the surprising answers to the questions I asked theseindividuals on the practice of instructing jurors.
“DoesLiberal Procedure Cause Punitive Substance? Preliminary Evidence from SomeNatural Experiments”
Southern California Law Review, Forthcoming
DONALD A. DRIPPS, University of SanDiego School of Law
Thelate, and justly celebrated, William Stuntz made many contributions to theliterature on criminal procedure. Among these is the arrestinglycounter-intuitive thesis that the Warren Court’s pro-defense procedural rulingsmade a causal contribution to the “punitive turn” in the substantive criminallaw. This article, contributed to a symposium on Criminal Justice at theCrossroads held at USC on June 7, 2013, and forthcoming in the SouthernCalifornia 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 thatthese differences set up natural experiments. We would expect the WarrenCourt’s decisions to provoke more powerful reactions in jurisdictions wherelocal practice was more radically transformed. We can assess whetherconservative jurisdictions increased the severity of the substantive law fasterthan counterpart jurisdictions with more liberal baseline procedures.
The article measures punitiveness according to an index of prisoners perhomicide. It codes eight US jurisdictions as liberal or conservative in theirpre-Warren Court criminal procedure. Generally similar jurisdictions withmarked differences in their criminal procedure are then compared: liberalCalifornia with conservative New York, liberal Illinois with conservative Ohio,liberal Kentucky with conservative Maryland, and liberal DC with conservativeVirginia. The data in general do not support Professor Stuntz’s claim thatliberal procedural rulings encouraged more punitive substance.
Further study is warranted. The available evidence, however, does not suggestthe existence of a general substance-procedure feedback loop that should causejudges, legislators, or law enforcement officials to hesitate to adoptotherwise justified reforms.
– JB