Strict scrutiny
The Rule of Law in the Fight against Terrorism
Tiberiu Dragu & Mattias Polborn
American Journal of Political Science, forthcoming
Abstract:
What is the role of legal limits on executive power, if any, when citizens demand more security from terrorism, and allowing executive officials legal flexibility of action appears necessary to achieve it? We develop a game-theoretic model to show that when the executive faces increased electoral incentives to provide security and has legal flexibility to choose any policy it finds optimal, security from terrorism can actually decrease. In contrast, when the executive faces increased electoral incentives to provide security and there is an explicit legal limit on executive counterterrorism activities, security from terrorism increases. We also show that the executive achieves the objective of terrorism prevention more effectively when there are some limitations on its counterterrorism powers. The article provides a security rationale for legal limits on executive power and has implications for understanding how to design the institutional structure of liberal governments when the social objective is terrorism prevention.
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Are Forensic Experts Biased by the Side That Retained Them?
Daniel Murrie et al.
Psychological Science, forthcoming
Abstract:
How objective are forensic experts when they are retained by one of the opposing sides in an adversarial legal proceeding? Despite long-standing concerns from within the legal system, little is known about whether experts can provide opinions unbiased by the side that retained them. In this experiment, we paid 108 forensic psychologists and psychiatrists to review the same offender case files, but deceived some to believe that they were consulting for the defense and some to believe that they were consulting for the prosecution. Participants scored each offender on two commonly used, well-researched risk-assessment instruments. Those who believed they were working for the prosecution tended to assign higher risk scores to offenders, whereas those who believed they were working for the defense tended to assign lower risk scores to the same offenders; the effect sizes (d) ranged up to 0.85. The results provide strong evidence of an allegiance effect among some forensic experts in adversarial legal proceedings.
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Eyewitness Identifications and Police Practices: A Virginia Case Study
Brandon Garrett
Virginia Journal of Criminal Law, forthcoming
Abstract:
Over three decades of social science research has powerfully shown that lineup procedures really matter and that eyewitness errors predictable result from substandard lineups. Yet traditionally, many police departments had no written policies at all on conducting photo arrays or lineups. In response, more police departments, prosecutors, state courts and legislatures have acted to improve identification procedures. Although much has changed in the past decade, less is known about how many police departments have not yet adopted best practices. This Essay reports the results of a 2013 survey conducted of lineup procedures in Virginia, where a new state model policy was adopted in 2011 in response to a series of DNA exonerations caused by eyewitness misidentifications, as well as concern with the slow pace of adoption of best practices. Of the 201 law enforcement agencies that responded, 144 supplied eyewitness identification policies. Troubling findings included that in total, only 29% required blind lineup procedures and only 40% made blind lineup procedures available even as an option. Only 6% adopted the revised model policy. The results suggest that institutional inertia, and not policy choices, explain the slow pace of adoption of best practices. As a result, dissemination of best practices by state policymakers may not be enough, and stronger regulatory measures may be required to safeguard the accuracy of criminal investigations.
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John Roman
Urban Institute Working Paper, July 2013
Abstract:
This study finds that homicides with a white perpetrator and a black victim are ten times more likely to be ruled justified than cases with a black perpetrator and a white victim, and the gap is larger in states with Stand Your Ground laws. After accounting for a variety of factors, such as whether the victim and perpetrator were strangers, the gap is smaller, but still significant. Cases with a white perpetrator and a black victim are 281 percent more likely to be ruled justified than cases with a white perpetrator and white victim.
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Judicial Consensus and Public Opinion: Conditional Response to Supreme Court Majority Size
Michael Salamone
Political Research Quarterly, forthcoming
Abstract:
Do judicial dissents affect mass politics? The conventional wisdom is that unanimous rulings boost support for Supreme Court decisions, while division fuels popular opposition. However, empirical analysis of public reaction to unanimity and dissent is sparse, incomplete, and inconsistent. Through a series of survey experiments, I expand upon existing research on public opinion of judicial unity. I find that reaction to judicial consensus is dependent on the ideological salience of the issue involved and that, contrary to conventional wisdom and recent findings, dissent can foster acceptance of rulings among the Court's opponents by suggesting evidence of procedural justice.
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Peter Enns & Patrick Wohlfarth
Journal of Politics, October 2013, Pages 1089-1107
Abstract:
In the Supreme Court's most closely divided cases, one pivotal justice can determine the outcome. Given this fact, judicial scholars have paid substantial attention to the swing justice. This article makes two theoretical contributions to the study of the swing justice and this justice's resulting influence on case outcomes. First, we show that in a substantial number of cases, the justice that casts the pivotal vote is not the median justice on the Court. Second, we argue that the swing justice will typically rely less on attitudinal considerations and more on strategic and legal considerations than the other justices on the Court. The analysis suggests that even among the Court's most closely divided decisions, which are typically thought to reflect the Court's most ideologically driven outcomes, the pivotal swing vote is significantly less likely to reflect attitudinal predispositions and more likely to reflect strategic considerations, such as the public's preferences, and case-specific considerations such as the position advocated by the Solicitor General. The theory and findings suggest that a failure to consider the unique behavior of a pivotal actor - whether on the Supreme Court or any other decision-making body - can lead to incorrect conclusions about the determinants of policy outputs.
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Jury Size and the Hung-Jury Paradox
Barbara Luppi & Francesco Parisi
Journal of Legal Studies, June 2013, Pages 399-422
Abstract:
In Williams v. Florida (399 U.S. 78 [1970]), the U.S. Supreme Court decided a case addressing the constitutionality of juries composed of fewer than 12 jurors, ruling that smaller juries are not inconsistent with the Sixth Amendment. In an effort to speed deliberation and reduce the rate of mistrials, 11 states have subsequently adopted juries of fewer than 12 in state felony trials, and 40 states have diminished their jury sizes for state misdemeanor trials. Curiously, however, contrary to the predictions of probability theory and common sense, these reductions in jury sizes have failed to deliver the expected reduction in mistrial rates. In this paper, we offer two interrelated explanations for this fact: informational cascades and the heterogeneity of jurors.
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Law, Fact, and the Threat of Reversal From Above
Joseph Smith
American Politics Research, forthcoming
Abstract:
This article argues that the threat of review and reversal by supervising courts affects circuit court judges differently in disputes focusing on law compared to disputes focusing on facts. Because fact-bound cases are less likely to be reviewed than law-bound cases, lower court judges are freer to indulge their policy preferences in fact-bound cases. I test this argument using computer-assisted content analysis to measure the extent to which legal disputes are based on interpretations of facts and interpretations of relevant legal standards, respectively. The results of this content analysis are then used as independent variables in a model predicting the outcomes of legal challenges to the actions of administrative agencies. The results indicate that highly fact-bound decisions amplify the effects of judicial ideology while highly law-bound decisions constrain the effects of ideology.
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The Elusive Effects of Alcohol Intoxication on Visual Attention and Eyewitness Memory
Alistair Harvey, Wendy Kneller & Alison Campbell
Applied Cognitive Psychology, forthcoming
Abstract:
Alcohol is a contributing factor in many crimes, yet little is known of its effects on eyewitness memory and face identification. Some authors suggest that intoxication impairs attention and memory, particularly for peripheral scene information, but the data supporting this claim are limited. The present study therefore sought to determine whether (i) intoxicated participants spend less time fixating on peripheral regions of crime images than sober counterparts, (ii) whether less information is recognised from image regions receiving fewer gaze fixations and (iii) whether intoxicated participants are less able to identify the perpetrator of a crime than sober participants. Contrary to expectations, participants' ability to explore and subsequently recognise the contents of the stimulus scenes was unaffected by alcohol, suggesting that the relationship between intoxication, attention and eyewitness memory requires closer scrutiny.
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Ryon Stephanie Bontrager
Journal of Criminal Justice, November-December 2013, Pages 426-437
Purpose: Adopting a social threat perspective, the assessment explores how gender and social gender dynamics affect the labeling of convicted felons using a unique sentencing outcome - adjudication withheld.
Methods: This research investigates the direct effect of gender, and interactive impact of offender sex/crime type, on adjudication withheld for a sample of probationers (N = 110,419) sentenced in Florida between 2000 and 2002 using Hierarchical Generalized Linear Modeling. The study also explores how social gender dynamics moderate these relationships.
Results: Female offenders are significantly more likely than men to receive adjudication withheld. Women convicted of atypical crimes, such as assault, auto theft and drug sale/manufacturing have better odds of avoiding the felon label than females convicted of other crimes. Finally, measures of gendered threat do not increase the use of social control for female offenders.
Conclusions: Women have significantly better chances of avoiding a felon label; however, this varies by crime type. Criminal justice actors may be reluctant to penalize female offenders with a felon label and the stigma of violent crime convictions. Finally, gendered threat measures did not weaken the leniency shown to female probationers in Florida, possible due to the increased resources available to women in the study areas.
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The Gestural Misinformation Effect: Skewing Eyewitness Testimony Through Gesture
Daniel Gurney, Karen Pine & Richard Wiseman
American Journal of Psychology, Fall 2013, Pages 301-314
Abstract:
The susceptibility of eyewitnesses to verbal suggestion has been well documented, although little attention has been paid to the role of nonverbal communication in misinformation. Three experiments are reported; in each, participants watched footage of a crime scene before being questioned about what they had observed. In Experiments 1 and 2, an on-screen interviewer accompanied identically worded questions with gestures that either conveyed accurate information about the scene or conveyed false, misleading information. The misleading gestures significantly influenced recall, and participants' responses were consistent with the gestured information. In Experiment 3, a live interview was conducted, and the gestural misinformation effect was found to be robust; participants were influenced by misleading gestures performed by the interviewer during questioning. These findings provide compelling evidence for the gestural misinformation effect, whereby subtle hand gestures can implant information and distort the testimony of eyewitnesses. The practical and legal implications of these findings are discussed.
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The Questionable Character of the Bar's Character and Fitness Inquiry
Leslie Levin, Christine Zozula & Peter Siegelman
Law & Social Inquiry, forthcoming
Abstract:
Lawyers who engage in misconduct can do substantial harm. To screen out "unfit" lawyers, bar examining authorities collect detailed personal information from bar applicants. The rationale for this "character and fitness" inquiry is to identify who is likely to become a problematic lawyer. Despite the history of discrimination associated with this inquiry and the highly personal information requested, there has been no rigorous test of whether such predictions are possible. This article examines the information disclosed by 1,343 Connecticut bar applicants and their subsequent disciplinary records. It reveals that while some bar application data are associated with an elevated risk of future discipline, the predictive power of the data is extremely low. Moreover, several variables are more strongly associated with less severe discipline than with more severe discipline. We argue that some of the causal mechanisms linking application data to subsequent discipline may have more to do with career trajectory than with an underlying propensity to engage in misconduct.
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The Cost of Law: Promoting Access to Justice through the (Un)Corporate Practice of Law
Gillian Hadfield
International Review of Law and Economics, forthcoming
Abstract:
The U.S. faces a mounting crisis in access to justice. Vast numbers of ordinary Americans represent themselves in routine legal matters daily in our over-burdened courts. Obtaining ex ante legal advice is effectively impossible for almost everyone except larger corporate entities, organizations and governments. In this paper, I explain why, as a matter of economic policy, it is essential that the legal profession abandon the prohibition on the corporate practice of law in order to remedy the access problem. The prohibitions on the corporate practice of law rule out the use of essential organizational and contracting tools widely used in most industries to control costs, improve quality and reduce errors. This keeps prices for legal assistance high by cutting the industry off from the ordinary economic benefits of scale, data analysis, product and process engineering and diversified sources of capital and innovation. Lawyers operating in law firms have not generated these benefits but they have appeared in countries, such as the U.K., where the corporate practice of law doctrine does not prevail. Eliminating restrictions on the corporate practice of law can significantly improve the access ordinary Americans have to legal help in a law-thick world.
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Margaret Williams & Tracey George
Journal of Empirical Legal Studies, September 2013, Pages 424-461
Abstract:
The U.S. Judicial Panel on Multidistrict Litigation may transfer factually related actions filed in different federal districts to a single judge for consolidated pretrial litigation. This transferee judge has significant discretion over the management of the litigation, including ruling on dispositive pretrial motions. Nearly all cases are resolved without returning to the original district court. Thus, as a practical matter, the MDL Panel controls where these disputes will be litigated. And, the MDL Panel has substantial discretion in making that decision. In its first 44 years of existence, the Panel has transferred and consolidated nearly 400,000 lawsuits, including high-profile securities and derivative lawsuits, large-scale consumer actions, and mass torts involving products liability claims, common disasters, and air crashes. The Panel's transfer ruling has never been overturned. The current study provides the first systematic and comprehensive empirical investigation of the Panel's decision to transfer and consolidate pending federal civil lawsuits, examining the rationale for transfer and for the selection of a specific district court and judge to handle the consolidated litigation. We find that the Panel grants most motions to transfer and consolidate, but exercises meaningful discretion in choosing where and by whom the cases will be adjudicated. The MDL Panel is much more likely to assign cases to a district court where a current panelist sits and that is supported by at least one defendant and to a district judge who currently serves on the Panel. Thus, the composition of the Panel has a meaningful effect on where and how large-scale litigation will be resolved.
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Innocence and Resisting Confession During Interrogation: Effects on Physiologic Activity
Max Guyll et al.
Law and Human Behavior, October 2013, Pages 366-375
Abstract:
Innocent suspects may not adequately protect themselves during interrogation because they fail to fully appreciate the danger of the situation. This experiment tested whether innocent suspects experience less stress during interrogation than guilty suspects, and whether refusing to confess expends physiologic resources. After experimentally manipulating innocence and guilt, 132 participants were accused and interrogated for misconduct, and then pressured to confess. Systolic and diastolic blood pressure (SBP, DBP), heart rate (HR), respiratory sinus arrhythmia (RSA), and preejection period (PEP) responses quantified stress reactions. As hypothesized, the innocent evidenced smaller stress responses to interrogation for SBP, DBP, HR, and RSA than did the guilty. Furthermore, innocents who refused to confess exhibited greater sympathetic nervous system activation, as evidenced by shorter PEPs, than did innocent or guilty confessors. These findings suggest that innocent suspects underestimate the threat of interrogation and that resisting pressures to confess can diminish suspects' physiologic resources and lead to false confessions.
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Consensus and Cooperation on State Supreme Courts
Meghan Leonard & Joseph Ross
State Politics & Policy Quarterly, forthcoming
Abstract:
The opinion-writing process is a vital yet understudied aspect of judicial decision making on state supreme courts. We argue that this process is influenced by the political context and particularly by institutional rules that serve to reactivate and reinforce divisions among justices, leading to less cooperation on the court. We test our theory with original data comprising all education cases decided from 1995 to 2005 in all 50 states and find evidence to support our theory. Specifically, we find that elections lead to fewer unanimous decisions and more separate written opinions, indicating that judicial elections may have a more pervasive effect on the daily work of these courts than previously thought.
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Richard Rogers et al.
Behavioral Sciences & the Law, July/August 2013, Pages 397-410
Abstract:
In Miranda v. Arizona (1966), the Supreme Court of the United States required that custodial suspects be apprised of their Constitutional rights against self-incrimination. The Court could not have anticipated the rampant popularization of Miranda warnings in subsequent movies and television dramas. Influenced by public media, many arrestees assume that they already "know" their rights, with no awareness of their misconceptions. The current investigation examines whether repeated exposures to Miranda warnings performs any "curative" function (i.e., dispelling common Miranda misconceptions held by pretrial defendants). The accumulative effects of five different Miranda warnings were tested over a several-hour period on 260 detainees. For the nearly half (113 or 43.5%) with three or more misconceptions, improvement (i.e., ?2 fewer misconceptions) occurred for only 35 defendants. Predictably, this improved group also tended to display a better understanding of Miranda-relevant vocabulary words and a better recall of the administered Miranda warnings than their unimproved counterparts. On average, the improved group also performed better on general measures of intelligence, and listening and reading comprehension, while still evidencing substantial cognitive deficits. The curative function of Miranda advisements is considered in light of these findings.
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Brandon Garrett & Gregory Mitchell
Journal of Empirical Legal Studies, September 2013, Pages 484-511
Abstract:
Fingerprint examiners use a variety of terms and phrases to describe a finding of a match between a defendant's fingerprints and fingerprint impressions collected from a crime scene. Despite the importance and ubiquity of fingerprint evidence in criminal cases, no prior studies examine how jurors evaluate such evidence. We present two studies examining the impact of different match phrases, method descriptions, and statements about possible examiner error on the weight given to fingerprint identification evidence by laypersons. In both studies, the particular phrase chosen to describe the finding of a match - whether simple and imprecise or detailed and claiming near certainty - had little effect on participants' judgments about the guilt of a suspect. In contrast, the examiner admitting the possibility of error reduced the weight given to the fingerprint evidence - regardless of whether the admission was made during direct or cross-examination. In addition, the examiner providing information about the method used to make fingerprint comparisons reduced the impact of admitting the possibility of error. We found few individual differences in reactions to the fingerprint evidence across a wide range of participant variables, and we found widespread agreement regarding the uniqueness of fingerprints and the reliability of fingerprint identifications. Our results suggest that information about the reliability of fingerprint identifications will have a greater impact on lay interpretations of fingerprint evidence than the specific qualitative or quantitative terms chosen to describe a fingerprint match.
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John Szmer & Martha Humphries Ginn
American Politics Research, forthcoming
Abstract:
Focusing on litigators or amicus curiae, a significant amount of scholarship has examined the impact of information on Supreme Court decision making. Taking into account that justices have varying degrees of substantive expertise across issues, we model the interaction of justice expertise with these external sources of information. Specifically, we test whether justices are more likely to be influenced by attorney capability in cases where they have less substantive legal expertise. We also explore whether justices' reliance on amici is conditional on their own expertise, as well as the overall quality of the litigants' attorneys. As anticipated, this research finds that as the justice's legal expertise increases, the influence of attorney capability tends to decrease. Moreover, as the expertise of the judge and/or the quality of the attorneys increase, the impact of amici tends to decrease.