The Champion

November 2013 , Page 61 

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Getting Scholarship Into Court Project

By Getting Scholarship Into Court Project

Read more Getting Scholarship Into Court Project columns.

Editor’s Note: The “Getting Scholarship Into Court Project” brings helpful law review articles and other writings to the attention of criminal defense attorneys. The project’s purpose is to identify scholarship that will be especially useful to courts and practitioners. This page summarizes articles the project’s advisory board recommends that practicing lawyers read in their entirely.  

Sandra Guerra Thompson
Judicial Gatekeeping of Police-Generated Witness Testimony
102 J. Crim. L. & Criminology 329 (2012) 

Police officers question witnesses during the course of investigations to uncover evidence. However, through questioning – particularly suggestive and/or coercive questioning – they may generate false evidence. Three types of “police-generated witness testimony” are especially likely to be unreliable: confessions, statements from police informants, and eyewitness identifications. Each of these is a leading cause of wrongful convictions. Police use of heavy-handed questioning tactics can have a tendency to produce false statements, especially when the individuals questioned are vulnerable, such as juveniles, the intellectually disabled, or the mentally ill. Procedural best practices exist that the police can follow to reduce the dangers of false evidence. The Supreme Court has sanctioned similar best practices to guard against suggestiveness for statements obtained through hypnosis. The article urges practitioners to move beyond the current federal constitutional doctrine that fails to exclude patently unreliable police-generated testimony. Instead, one can rely on the evidence rules and state constitutional law. Courts can better ensure the reliability of criminal trials by exercising genuine gatekeeping during pretrial reliability hearings. Reliability hearings for lay witness testimony already exist for some types of evidence in criminal cases, and they are required for expert testimony. Effective gatekeeping advances the objectives of the rules of evidence and complies with the judicial ethics mandate to secure the integrity of the trial process.

Nicholas Kahn-Fogel
Manson and Its Progeny: An Empirical Analysis of American Eyewitness Law
3 Civil Rights & Civil Liberties L. Rev. 175 (2012) 

Since the Supreme Court established the current constitutional framework for determining the admissibility of eyewitness identification evidence in Manson v. Brathwaite in 1977, scientists and scholars who have evaluated the opinion have uniformly criticized it as insufficient to deter police from using flawed identification procedures and inconsistent with scientific evidence of the best ways to assess the reliability of evidence tainted by such procedures. Until now, however, the work of these scientists and scholars has been based primarily on simulation experiments and on a selective assortment of easily criticized judicial decisions applying Manson. This study provides the first in-depth, systematic analysis of judicial treatment of eyewitness identification evidence under Manson, including examination of all federal criminal cases and habeas corpus decisions available on Westlaw that cited the opinion in considering the admissibility of eyewitness evidence through Jan. 31, 2010. Data from the 1,471 cases in the final data set confirms much of what scientists and legal academics have been saying for the last 34 years and reinforces past critiques with significant empirical data. Specifically, federal courts evaluating the admissibility of eyewitness evidence under Manson rarely suppress in-court identifications, and they frequently analyze the evidence before them in ways that are inconsistent with the science. In the cases in the data set, courts regularly held clearly unnecessarily suggestive identification procedures to be acceptable or failed to make definitive determinations on whether such procedures were improper, and they often analyzed Manson’s reliability factors in a manner that undermines the integrity of the inquiry. The study shows that courts evaluating the reliability of evidence from flawed identification procedures frequently relied on witnesses’ certainty after exposure to suggestion, even though science shows that such exposure is likely to enhance a witness’s confidence; in fact, a large number of the opinions reveal increases in witness confidence after witnesses viewed suggestive procedures. Time-trend analysis shows that in the 33 years after Manson, while scientific data relevant to the Manson standard was published and accepted in scientific communities, the quality of judicial analysis did not improve in response to the new generation of scientific developments, and federal courts became significantly less likely to use Manson to suppress eyewitness identification evidence.

Ira P. Robbins
‘Bad Juror’ Lists and the Prosecutor’s Duty to Disclose
22 Cornell J.L. & Pub. Pol’y 1 (2012) 

Prosecutors sometimes use what are known as “bad juror” lists to exclude particular citizens from jury service. Not only does this practice interfere with an open and fair jury-selection process, thus implicating a defendant’s right to be tried by a jury of his or her peers, but it also violates potential jurors’ rights to serve in this important capacity. But who is on these lists? And is a prosecutor required to disclose the lists to defense counsel? These questions have largely gone unnoticed by legal analysts. This article addresses the prosecutor’s duty to disclose “bad juror” lists. It reviews the federal Freedom of Information Act, a variety of state open records acts and their exemptions, the work product doctrine, the fundamental fairness doctrine, and the discriminatory use of peremptory challenges (particularly in death penalty cases). The article concludes by advancing recommendations for overcoming disclosure exemptions and preserving the integrity of jury selection in the face of the continued use of “bad juror” lists. The judicial system in the United States is adversarial. Particularly in criminal cases, when prosecutors, who already hold enormous power, are permitted to put their thumbs on the scale of justice during jury selection, the entire system suffers — the rights of potential jurors, the rights of the defendant, the reliability of the outcome of the proceedings, and the appearance of justice.

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