Copyright (c) 2009 All rights reserved. http://works.bepress.com/jules_epstein Recent documents in Jules Epstein en-us Wed, 04 Nov 2009 23:18:49 PST 3600 http://works.bepress.com/jules_epstein/47 http://works.bepress.com/jules_epstein/47 Tue, 03 Nov 2009 11:27:16 PST Jules Epstein Evidence http://works.bepress.com/jules_epstein/46 http://works.bepress.com/jules_epstein/46 Mon, 02 Nov 2009 12:47:39 PST Any attempt to assess the merits of a prosecutorial 'selection' scheme in capital-eligible homicide cases must have an appropriate metric. Scholarship to date has screened such discretionary scheme for racial and intra-state geographic disparities and found recurring problems in each area, with race (often race of victim) standing out in some jurisdictions as a dispositive factor in which defendant must face the death penalty at trial. If one assumes that a well-designed capital charging process can reduce if not eliminate such disparities, a metric for judging the success of prosecutorial charging schemes is still needed. This paper proposes that metric to be "death-worthiness," a standard derived from the Court's repeated insistence that the death penalty be reserved for the 'worst of the worst,' a standard that examines not only the crime and the negatives in the background of the accused but also all mitigating factors.Even if a prosecutor's office were to embrace this metric, and conduct pre-trial reviews of defense mitigation evidence to screen out those not 'worthy' of death, three barriers stand in the way of successful implementation of this standard. Counsel often fail to develop mitigation evidence, either due to ineffectiveness or a lack of resources. A defendant's youth may compromise his/her willingness and ability to assist in the mitigation process, and where youth stands as a barrier to expressing remorse may unjustifiably leave a particular defendant in the death-worthy cohort. Finally, the power of victim survivor constituencies, as when the victim is a police officer killed in the line of duty, may bar a well-intentioned prosecutor from declining to seek death even where the individual defendant is not death-worthy. The result will be an over-inclusive charging process in capital cases; and given the variability of juror response (and the persistence of race-based judgments in jury deliberations), the result will ensure that capital punishment is visited upon some who are not, by any measure, "death worthy." Jules Epstein Criminal Law and Procedure http://works.bepress.com/jules_epstein/45 http://works.bepress.com/jules_epstein/45 Wed, 26 Aug 2009 08:54:43 PDT Jules Epstein Evidence http://works.bepress.com/jules_epstein/44 http://works.bepress.com/jules_epstein/44 Wed, 19 Aug 2009 15:01:29 PDT Jules Epstein Evidence http://works.bepress.com/jules_epstein/43 http://works.bepress.com/jules_epstein/43 Wed, 19 Aug 2009 14:54:21 PDT Jules Epstein Trial Practice http://works.bepress.com/jules_epstein/42 http://works.bepress.com/jules_epstein/42 Wed, 19 Aug 2009 14:42:00 PDT Jules Epstein Evidence http://works.bepress.com/jules_epstein/41 http://works.bepress.com/jules_epstein/41 Tue, 21 Jul 2009 10:44:51 PDT Jules Epstein Evidence http://works.bepress.com/jules_epstein/40 http://works.bepress.com/jules_epstein/40 Wed, 15 Jul 2009 13:13:42 PDT The focus of the National Academy of Sciences' February, 2009 report "Strengthening Forensic Science in the United States" was global - to call for systemic improvements to the forensic disciplines and sciences, with emphasis (inter alia) on the research needed to validate expert claims of individualization and identity. In doing so, however, the report called into question the degree of certainty testified to by practitioners of "soft" forensic disciplines, the subjective pattern matching of fingerprints, ballistics, handwriting, tool marks, and tire and shoe print treads. In particular, the Report found an across-the-board inability to validate claims that a correspondence of features between crime scene evidence and a known (e.g., between a latent print left at a burglary and the print of a suspect) proves that the suspect was the sole possible contributor. This Article examines the consequences of the Report in the courtroom, identifying the legal issues that will arise in Frye and Daubert jurisdictions as litigants challenge the admissibility or scope of forensic 'expert' testimony. Jules Epstein Evidence http://works.bepress.com/jules_epstein/39 http://works.bepress.com/jules_epstein/39 Tue, 30 Jun 2009 13:30:19 PDT Jules Epstein Evidence http://works.bepress.com/jules_epstein/38 http://works.bepress.com/jules_epstein/38 Thu, 26 Feb 2009 07:45:39 PST Jules Epstein Evidence