Capers on Silencing as Blackening

I. Bennett Capers, Fordham University School of Law, has published Silencing as Blackening at 114 Georgetown Law Journal 813 (2026). Here is the abstract.

We are so accustomed to seeing defendants sit silently at criminal trials while their lawyers speak that we hardly question it. Or we tell ourselves this silence is for their own protection, part of their privilege against self-incrimination and the rules we have created for their own benefit. But what if we've gotten everything wrong? What if encouraging defendants to remain silent does not inure to their benefit at all, but to the State's? And what if this silencing is tied to race? "Silencing as Blackening" tells a fuller story about silent defendants. One, that this silence is rarely voluntary, but instead the result of a host of rules and decisions that encourage, coerce, and even compel silence. Two, although we have come to take defendants sitting silently as normal, in fact this silence is of recent origin. Three, although we claim this silence benefits defendants, the real beneficiary seems to be the State. Four, this silencing of defendants has a racial history, and today has race effects, such that we should recognize that silencing functions as a type of blackening. Rather than silencing defendants, and in effect blackening them, "Silencing as Blackening" argues we should carve out space for defendants to speak freely. And carve out space for us to listen. It argues that listening to defendants can help us rethink our entire criminal system. More ambitiously still, it argues that, just maybe, listening to defendants can help reduce racial and other biases. Can help undo race. And can help us let race go.

Download the article from SSRN at the link.

Kaufman on The First Criminal Procedure Revolution

Emma Kaufman, New York University School of Law, has published The First Criminal Procedure Revolution. Here is the abstract.

Today, it seems obvious that criminal defendants can waive constitutional rights. Plea bargains make up the vast majority of criminal convictions, and defendants routinely trade their rights — to indictment, to remain silent, to an attorney, to a jury — in exchange for a faster trial or a lesser charge. The modern criminal legal system is a regime of negotiated justice. Rights used to have more force. In the nineteenth century, the rules we now call criminal procedure rights were hard limits on judicial power. Defendants could not forfeit rights, and constitutional violations deprived courts of jurisdiction. But then, in an underappreciated and radical shift, courts changed their mind. One by one, rights became individual options, alienable upon consent. The rest is history: Grand juries declined, plea bargains soared, prosecutors became power brokers, and the system of mass processing was born. This Article recovers a lost chapter of American criminal procedure. It mines a trove of overlooked sources and traverses multiple disciplines to advance a simple claim: Between Reconstruction and the New Deal, courts transformed the rights of the accused. Long before the Warren Court revolutionized criminal procedure, there was a first revolution in constitutional criminal law. The story of that revolution reorients the field’s core assumptions, embarrasses modern doctrines, and expands the canon. It also advances our collective understanding of what it could mean to protect criminal procedure rights.

Download the article from SSRN at the link.

Acevedo on Witch-Hunts and Crime Panics in America

John Felipe Acevedo, University of Alabama School of Law, has published Witch-Hunts and Crime Panics in America. Here is the abstract.

The term witch-hunt has been tossed around by media commentators, policy experts, and even presidents for years — Nixon, Clinton, and Trump each in turn. Accusations of a witch-hunt are used to signal perceived bias, procedural unfairness, and paranoia. This Article argues that drawing simplistic connections between witchcraft trials and unfairness in the criminal justice system severely hampers our understanding of both historical and contemporary events. It obscures the fact that the term witch-hunt is popularly used to describe two very different types of prosecutions that reflect distinct social and legal problems and demand distinct solutions. On the one hand, witch-hunts target individuals based on their beliefs and are exemplified by the two Red Scares of the early and mid-twentieth century and the persecution of the Quakers in seventeenth century Massachusetts Bay. These are fundamentally distinct from crime panics, which target activity that was already classified as criminal but do so in a way that reveals deep procedural deficiencies in the criminal justice system. Crime panics are exemplified by the Salem witchcraft trials and the “Satanic Panic” of the 1980s and 1990s. In contrast, the ongoing special investigation by Robert Mueller is neither a witch-hunt nor a crime panic. By bringing ongoing criminal law issues into conversation with legal history scholarship on early American witch-hunts, this article clarifies our understanding of the relationship between politics and large-scale criminal investigations, and highlights areas for future reform.

Download the article from SSRN at the link.

Meyn on Why Civil and Criminal Procedure Are So Different: A Forgotten History @WisconsinLaw

Ion Meyn, University of Wisconsin Law School, has published Why Civil and Criminal Procedure Are So Different: A Forgotten History at 86 Fordham Law Review 697 (2017). Here is the abstract.

Much has been written about the origins of civil procedure. Yet little is known about the origins of criminal procedure, even though it governs how millions of cases in federal and state courts are litigated each year. This Article’s examination of criminal procedure’s origin story questions the prevailing notion that civil and criminal procedure require different treatment. The Article’s starting point is the first draft of the Federal Rules of Criminal Procedure — confidential in 1941 and since forgotten. The draft reveals that reformers of criminal procedure turned to the new rules of civil procedure for guidance. The contents of this draft shed light on an extraordinary moment: reformers initially proposed that all litigation in the United States, civil and criminal, be governed by a unified procedural code. The implementation of this original vision of a unified code would have had dramatic implications for how criminal law is practiced and perceived today. The advisory committee’s final product in 1944, however, set criminal litigation on a very different course. Transcripts of the committee’s initial meetings reveal that the final code of criminal procedure emerged from the clash of ideas presented by two committee members, James Robinson and Alexander Holtzoff. Holtzoff’s traditional views would ultimately persuade other members, cleaving criminal procedure from civil procedure. Since then, differences in civil and criminal litigation have become entrenched and normalized. Yet, at the time the Federal Rules of Criminal Procedure were drafted, a unified code was not just a plausible alternative but the only proposal. The draft’s challenge to the prevailing notion that civil and criminal wrongs inherently require different procedural treatment is a critical contribution to the growing debate over whether the absence of discovery in criminal procedure is justified in light of discovery tools afforded by civil procedure. The first draft of criminal procedure, which called for uniform rules to govern proceedings in all civil and criminal courtrooms, suggests the possibility that current resistance to unification is, to a significant degree, historically contingent.

Download the article from SSRN at the link.

Bandes on Ferguson and Changes in Legal Education

Susan A. Bandes, DePaul University College of Law, has published Moral Shock and Legal Education at 65 Journal of Legal Education 298 (2015). Here is the abstract.

This essay is part of a Journal of Legal Education symposium issue on how recent high profile revelations about racially discriminatory policing in Ferguson and elsewhere have affected the way law professors teach, think, write and talk about criminal justice, civil rights, and law in general.

Download the essay from SSRN at the link.

Comparative Criminal Procedure Through Film

Samuel Bettwy, adjunct professor of law, Thomas Jefferson School of Law, has published Comparative Criminal Procedure Through Film: Analytical Tools & Law and Film Summaries By Legal Tradition and Country (Vanderplas Publishing, 2015). Here is a description of the contents from the publisher's website.

This textbook describes analytical tools for studying comparative criminal procedure through film and provides summaries of the law of 50 countries and of over 270 films that depict criminal procedure in action in those countries. The traditional tools of comparative analysis include the inquisitorial-adversarial dichotomy, role-specific constructs and the Civil Law-Common Law dichotomy. In addition, differences in criminal procedure can be examined through the socialist, Islamic and indigenous legal traditions and through the evolving international legal regimes. The tools of comparative legal analysis are applied to examine the adjudicative process through film, beginning with police contact with a crime suspect and ending either with a judge or jury’s acquittal or with execution of sentence. The law summaries describe the distinctive criminal procedure of each legal tradition and of each country within those traditions. For each country, the film summaries describe background information about the film and the filmmaker, the plot of the film as a whole and the legal story contained within. The textbook is designed for teaching law students, but is also suitable for teaching an undergraduate or post-graduate college course in comparative criminal justice.
 

The book is available in print and ebook editions.

Using Breaking Bad In the Law School Classroom

Max Minzner, University of New Mexico School of Law, has published Breaking Bad in the Classroom in volume 45 New Mexico Law Review (2015). Here is the abstract.

Breaking Bad is often described as the transformation of Walter White — Mr. Chips becomes Scarface. Equally significant, though, are the journeys of Hank Schrader, his DEA pursuer, and Hank’s colleagues. The show is a study of law enforcement investigation in action. As a result, Breaking Bad can serve as a tool of pedagogy in criminal procedure.

This Essay seeks to serve two ends. First, it provides a map for the use of the Breaking Bad series in the core constitutional criminal procedure course focusing on the limits on police investigation arising from the Fourth and Fifth Amendments. Video is a powerful mechanism for presenting hypotheticals to students. Recent work on other shows such as The Wire has recognized the value of television as an alternative pedagogical technique in the law school curriculum. Breaking Bad deserves to take its place as a teaching aid in a criminal procedure classroom. The first part of this Essay identifies usable scenes for both faculty and students, and provides a preliminary analysis of the doctrine.

The second goal of this Essay is to expand the focus of the traditional course beyond the United States Constitution. Breaking Bad is more than a show about cops and criminals. It is a show about New Mexico. As a result, for those of us training New Mexico’s future prosecutors and defense lawyers, it provides a mechanism to introduce students to state criminal procedure. As is true in many states, the New Mexico Constitution contains parallel protections to the Fourth and Fifth Amendments that have been interpreted more broadly than their restrictive federal counterparts. This Essay is a call to law school faculty to incorporate state constitutions into the criminal procedure class. Because criminal law is fundamentally state law, these are the provisions our students will implement in practice. As a result, they deserve significant time in the criminal procedure course.

As legal education changes, law school faculty members teaching doctrinal classes are increasingly called on to make traditional law school courses more practical. The central goal of these efforts is to make our graduates more practice-ready and to increase the realism of legal education. The constitutional criminal procedure course is perhaps the best place to start. The core of the course is practice-oriented and will be implemented by our graduates as soon as they begin a career in criminal law. Breaking Bad is one mechanism for faculty members to use. In this way, the use of fiction can make criminal procedure more realistic.

Download the article from SSRN at the link.

While the idea (pedagogically) has been around for a while (see for example my (very) old piece Columbo Goes To Law School: Or, Some Thoughts On the Uses of Television in the Teaching of Law, 13 Loy. L. A. Ent. L.J. 499 (1993)), Prof. Minzner's piece is interesting because it focuses attention on New Mexico state law and on state constitutions.

A Conference on Jack the Ripper

Paula Marantz Cohen discusses academic interest in Jack the Ripper here in the September 4, 2011 issue of the Chronicle of Higher Education. She and a colleague, Fred J. Abbate, have organized a conference on the issue, which will be held October 28-29 at Drexel University.

The "Gatehouses and Mansions" After Fifty Years

Richard A. Leo, University of San Francisco School of Law, and Alexa Koenig, University of California, Berkeley, School of Law, and University of San Francisco, have published The Gatehouses and Mansions: Fifty Years Later at 6 Annual Review of Law and Social Science 323 (2010). Here is the abstract.

In 1965, Yale Kamisar authored “Equal Justice in the Gatehouses and Mansions of American Criminal Procedure,” an article that came to have an enormous impact on the development of criminal procedure and American norms of criminal justice. Today, that article is a seminal work of scholarship, hailed for “playing a significant part in producing some of the [Warren] Court's most important criminal-procedure decisions” ( White 2003–2004 ), including Miranda v. Arizona. The most influential concept Kamisar promoted may have been his recognition of a gap that loomed between the Constitutional rights actualized in mansions (courts) versus gatehouses (police stations). Kamisar passionately detailed how the Constitution and its jurisprudential progeny failed to protect suspects when those rights mattered most: when facing questioning by police. This article discusses where this thesis stands today in light of nearly 50years of legal developments and social science research.

The full text is not available from SSRN.