Law and Psychology Review

Articles

Vol. 38, Annual

The Year of Magical Thinking: Fraud, Loss, and Grief
ABSTRACT In The Year of Magical Thinking, her wrenching memoir of the year following the death of her husband John Gregory Dunne, Joan Didion describes the episodes of magical thinking that forestalled her acceptance of Dunne's sudden absence from...
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Fighting over Bedtime Stories: An Empirical Study of the Risks of Valuing Quantity over Quality in Child Custody Decisions
III. PSYCHOLOGICAL RESEARCH AND CHILD CUSTODY DISPUTES The impact of divorce on children has been extensively researched in numerous quantitative and qualitative studies covering tens of thousands of persons. (146) Part III. A reviews this research...
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Ripped from the Headlines: Juror Perceptions in the 'Law & Order' Era
ABSTRACT Film and Media Studies scholars have long claimed that television is a primary source of information about the criminal justice system for most Americans. These scholars have also found that television can significantly impact viewers'...
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Character as a Process in Judgment and Decision-Making and Its Implications for the Character Evidence Prohibition in Anglo-American Law
ABSTRACT Though character is an elusive construct of considerable complexity, recent research in the field of psychology has made significant progress into unpacking the nature, function, and impact of character on judgment and decision-making....
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Dare Defend: Standing for Stand Your Ground
ABSTRACT Since George Zimmerman's trial and acquittal of second-degree murder last summer, stand your ground laws have become a nationally debated topic. Though a near-majority of states have passed their own versions of stand your ground laws in...
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Lost Libido, or Just Forgotten? the Legal and Social Influences on Sexual Activity in Long-Term Care
ABSTRACT It is extremely important that younger generations properly understand and attend to the needs of our ever-growing geriatric community. A significant part of delivering care to these older adults is ensuring that their quality of life is...
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Transgender Workplace Discrimination in the Age of Gender Dysphoria and ENDA
ABSTRACT Transgender Americans are one of the groups most vulnerable to workplace discrimination. Until recently, the stigma surrounding their medical issues in the American social and legal environments and the field of psychology did not help...
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Veterans Treatment Courts: Analysis and Recommendations
ABSTRACT This note examines the creation of veterans treatment courts, a type of problem-solving court specifically for veterans, as a response to the increasing number of incarcerated veterans in the United States. Specifically, this note explores...
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Vol. 37, Annual

Empathy for Psychopaths: Using fMRI Brain Scans to Plea for Leniency in Death Penalty Cases
ABSTRACT Most of the public agrees that society is safer without psychopaths. However, a new sentencing strategy for psychopaths facing the death penalty has erupted from both mental health researchers and defense lawyers--imploring juries to view...
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The Propriety of Peremptory Challenges for Perceived Personality Traits
ABSTRACT There is substantial controversy over the extent to which social science should be used in jury selection. Underlying the debate are two competing interests in the make-up of a jury: a privilege to strike prospective jurors on subjective...
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Paved with Good Intentions: Sentencing Alternatives from Neuroscience and the Policy of Problem-Solving Courts
ABSTRACT Advances in basic and clinical neuroscience will soon present novel options for prediction, treatment, and prevention of antisocial behavior, particularly drug addiction. These hard-won advances have significant potential to improve public...
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Can the Courts Tell an Ear from an Eye? Legal Approaches to Voice Identification Evidence
ABSTRACT We conducted an empirical legal analysis concerning cases that involved voice identification (earwitness testimony) as evidence. The courts allowed the testimony anytime the identification was not suggestive. When the identification was...
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Coerced Internalized False Confessions and Police Interrogations: The Power of Coercion
ABSTRACT This paper examines false confessions, and in particular the typology of "coerced-internalized" false confessions. These confessions are made by individuals who falsely confess, but truly believe in their guilt despite objective evidence...
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The Case for Castration: A "Shot" towards Rehabilitation of Sexual Offenders
ABSTRACT Paraphiliacs are a group of sexual offenders who present a particularly difficult problem in the fields of law and psychology. Overwhelming evidence indicates that our current system of treating paraphiliac sex offenders is failing us;...
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Solitary Confinement: The Law Today and the Way Forward
ABSTRACT This note examines the practice of solitary confinement in modern "supermaximum" security prisons in the United States. It argues that solitary confinement is a harsh punishment that should not exist in its current form. It discusses the...
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Implicit Bias and the Problem of Certainty in the Criminal Standard of Proof
ABSTRACT The heightened standard of proof in criminal cases is crafted to allocate the risk of error to the state in order to protect the defendant from wrongful conviction. I reviewed empirical research to determine whether juries actually understand...
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Behavioral Economics: An Insight into Antitrust
ABSTRACT It has long been settled that antitrust law is to be developed and modified accordingly using the tenants of neoclassical economics. The central tenant of this field of study is that economic actors make decisions in a rational manner in...
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Vol. 36, Annual

The Habit Evidence Rule and Its Misguided Judicial Legacy: A Statistical and Psychological Primer
ABSTRACT This article explores and critiques the jurisprudential legacy of the habit evidence rule, ultimately concluding that habit is a psychological and not a probabilistic construct. Accordingly, the admission of evidence under the guise of...
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Mind Matters: Mental Disability and the History and Future of the Americans with Disabilities Act
ABSTRACT This Article examines the history of protections afforded individuals alleging mental disabilities under the Americans with Disabilities Act of 1990, and the protections such individuals will receive under the ADA going forward in light...
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The Hedonic Impact of "Stand-Alone" Emotional Harms-An Analysis of Survey Data
ABSTRACT This paper employs survey data on subjective well-being and a battery of self-assessed health measures Io estimate the hedonic impact of emotional health, as decoupled from its physical counterpart. The disaggregation of global health into...
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Social Security Disability Law and the Obstacles Facing Claimants with Mental Disabilities
ABSTRACT This Article examines the administrative processes and judicial analytical framework that govern the adjudication of Social Security disability claims for persons suffering with mental disorders. Since the enactment of the Social Security...
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Children's Freedom of Speech and Expressive Maturity
ABSTRACT The First Amendment's protection for the freedom of speech has never been satisfactorily applied to children in a way that accounts for the significant variance in maturity and vulnerability among different ages of children. The protections...
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Children Having Children: Why Adolescent Mothers Need Leave Too
ABSTRACT Women have made great strides in reducing discrimination in the workplace through Title VII and the FMLA. However, one group of unrepresented women--high school students--is being denied equal protection of the law by the lack of accommodation...
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Calculating an Alternative Route: The Difference between a Blindfolded Ride and a Road Map in Pro Se Criminal Defense
ABSTRACT In Faretta v. California, the Supreme Court recognized a constitutionally protected right to self-representation since an accused person must be able to control their own defense. Since then, legal professionals and the public have come...
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The Unjust "Web" We Weave: The Evolution of Social Media and Its Psychological Impact on Juror Impartiality and Fair Trials
ABSTRACT Accessible in a myriad of ways, the Internet has come to define the contemporary population as a group dependent on instant informational gratification. The growth of Internet popularity has not occurred without bringing concerns. In the...
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Safety or Freedom: Permissiveness vs. Paternalism in Involuntary Commitment Law
ABSTRACT This note examines the evolution of involuntary-commitment law and policy in the United States, framed as a choice between opposite poles of paternalism and permissiveness. The note discusses the development of Fourteenth Amendment due-process...
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Vol. 35, Annual

Introductory Comments
Volume 35 is a landmark in the history of the Law & Psychology Review. The Editorial Board made each publication decision with an eye towards bridging our rich body of content in mental health law with broader psychological themes. With our first...
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Negative Reciprocity and Law
INTRODUCTION Economic analysis has provided the most influential means of understanding legal doctrines since the legal realist movement of the early twentieth century. In the past fifteen years, however, findings from behavioral economics have...
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Juries, Sex, and Emotional Affect
INTRODUCTION In cases where the defendant goes before a jury--2% of all felony cases and 27% of murder cases (1)--every part of the trial can be integral to the jury's verdict. A criminal trial is composed of numerous parts, including the testimony...
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A Psychological Investigation of Consumer Vulnerability to Fraud: Legal and Policy Implications
INTRODUCTION Despite the high incidence of consumer fraud in the United States (1) and its dire consequences, especially in the home loan context, (2) very little research has been conducted on the psychological factors that leave consumers vulnerable...
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Subversive Apologia
The mentally ill have been described as "a historically voiceless group." (1) History is more complicated than that. To be sure, it is hard to identify a more marginalized group of individuals, but sometimes their voices have rung out. One place they...
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"Abandoned Love": The Impact of Wyatt V. Stickney on the Intersection between International Human Rights and Domestic Mental Disability Law
INTRODUCTION Wyatt v. Stickney (1) is the most important institutional rights case litigated in the history of domestic mental disability law. (2) It spawned copycat litigation in multiple federal district courts and state superior courts; (3) it...
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Wyatt V. Stickney: Did We Get It Right This Time?
INTRODUCTION I have been asked to tell you what conditions were like at Bryce, Partlow, and Searcy Hospitals during the years leading to Wyatt v. Stickney, the landmark federal court ruling which set standards for the care of the mentally ill and...
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Drafting the Case: The Parallel Legacies of Wyatt V. Stickney and Lynch V. Baxley
INTRODUCTION Wyatt v. Stickney began as a state court lawsuit challenging the dismissal of ninety-nine Alabama Department of Mental Health professional employees in the wake of budget cuts deemed "necessary to bring the expenditures at Bryce Hospital...
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The 1995 Wyatt Litigation: Beginnings, Trial Strategies, and Results
INTRODUCTION This paper addresses the fourth phase of the Wyatt litigation and the trial which took place in Alabama in 1995. The trial lasted more than thirty- five days over an eight- to ten-week period. This fourth phase of the litigation sought...
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All Smoke and No Fire? Analyzing the Potential Effects of the Mental Health Parity and Addiction Equity Act of 2008
INTRODUCTION The historical path to the current state of mental health treatment has been anything but cogent, with movements shifting between regulation and deregulation, institutionalization and deinstitutionalization. Progress toward a comprehensive...
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Home Is Where the Park Bench Is: The Psychological Benefits and Consequences of Requiring Homeless Sex Offenders to Present a Physical Address for Release from Alabama Prisons
INTRODUCTION Jeffrey Seagle is one of four men in the Alabama prison system who challenged a special form of life without the possibility of parole. (1) Seagle was not sentenced to life without parole by a jury or a judge. Instead, his possibly...
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The Missing Piece of the Autism Jigsaw Puzzle: How the Idea Should Better Address Disciplinary Procedures
INTRODUCTION Often when autistic individuals become overwhelmed, they may throw tantrums or have meltdowns. While states are starting to provide training workshops for public officials in order to teach them how to deal with these situations, teachers...
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Lessons from Exxon-Valdez: Employing Market Forces to Minimize the Psychological Impact on Oil Spill Plaintiffs
INTRODUCTION On April 20, 2010, the Deepwater Horizon rig, leased by BP for extracting oil from its Macondo well, exploded in the Gulf of Mexico resulting in the deaths of 11 rig employees. (1) Soon thereafter, it was discovered that the explosion...
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Vol. 34, Annual

Jury Pool Members' Beliefs about the Relation between Potential Impairments in Functioning and Mental Retardation: Implications for Atkins-Type Cases
I. INTRODUCTION In Atkins v. Virginia, the Supreme Court ruled that executing offenders with mental retardation (MR) constitutes "cruel and unusual punishment[]" (1) prohibited by the Eighth Amendment. (2) Determining whether a defendant is a person...
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Factors Impacting Sentence Severity of Intimate Partner Violence Offenders and Justification for the Types of Sentences Imposed by Mock Judges
I. INTRODUCTION Historically, "intimate partner violence" (IPV) was not considered a serious issue for the criminal justice system. (1) Instead, IPV was seen primarily as a private, family matter. (2) Participants in the criminal justice system,...
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Making Waves or Keeping the Calm? Analyzing the Institutional Culture of Family Courts through the Lens of Social Psychology Groupthink Theory
I. INTRODUCTION The study of the institutional culture of family courts offers a fascinating glance into the inner workings of courthouses. Yet, family court culture has been largely overlooked in legal and cultural literature. While there is no...
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Rape as a Violent Crime in Aid of Racketeering Activity
I. INTRODUCTION The United States Sentencing Commission's 1995 description of rape (1) as a "growing problem" was an understatement. (2) The numbers are shocking. For instance, "[i]n 1993, 100,200 forcible rapes were attempted and 40,730 were completed."...
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Videri Quam Esse: The Role of Empathy in Judicial Discourse
I. INTRODUCTION Supreme Court Justice Sonia Sotomayor has experienced more in a lifetime than most people ever will. Growing up in a Puerto Rican family living in a South Bronx housing project, Sotomayor excelled in the classroom, graduating as...
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The Cognitive Foundations of Formal Equality: Incorporating Gender Schema Theory to Eliminate Sex Discrimination towards Women in the Legal Profession
I. INTRODUCTION Despite the progress women have made in the legal profession, (1) sex discrimination remains a substantial impediment to female advancement in this field. (2) Based on the findings of gender schema theory, one of the principal causes...
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Recognition of the Nonhuman: The Psychological Minefield of Transgender Inequality in the Law
I. INTRODUCTION Members of the transgender (1) community often face difficult psychological and emotional challenges before and after their transition to the opposite sex. (2) Pre-transition, transgender individuals feel an enormous split between...
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The Irrationality of Credit Card Debt: Examining the Subconscious Biases of Credit Card Users
I. INTRODUCTION Credit cards may appear to be nothing more than a rectangular-shaped piece of plastic, but in reality, they are a primary driver of consumer spending. Credit cards provide two distinct functions to their users: transacting and financing....
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Vol. 33, No. 0, Annual

Presenting Information about Mental Retardation in the Courtroom: A Content Analysis of Pre-Atkins Capital Trial Transcripts from Texas
I. INTRODUCTION In Atkins v. Virginia, (1) the Supreme Court ruled that it was unconstitutional to execute persons with mental retardation. (2) The Atkins Court concluded that statutory definitions of mental retardation (MR) should generally conform...
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When the Empirical Base Crumbles: The Myth That Open Dependency Proceedings Do Not Psychologically Damage Abused Children
I. INTRODUCTION In two previous articles, I chronicled the vast pediatric-psychiatric empirical evidence regarding the fragile psychological state of abused and/or neglected children and the evidence that forcing abused children to testify before...
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Enhancing Law School Success: A Study of Goal Orientations, Academic Achievement and the Declining Self-Efficacy of Our Law Students
I. INTRODUCTION I have long been interested in how the most successful law students learn. For the top law students, do they innately possess superior skills or can we teach law students the skills and strategies that will contribute to their success?...
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Personality in Juror Decision-Making: Toward an Idiographic Approach in Research
I. INTRODUCTION *** During voir dire, jurors are asked to admit their own biases--a tall order, since a basic tenet of psychology is that people do not often even know their own biases and when they do, they may be reluctant to reveal them. (1)...
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Mental Health Courts: An Overview and Redefinition of Tasks and Goals
I. INTRODUCTION The explosion of mental health courts (MHCs) from just a handful in the late 1990s to over 150 today (1) has undoubtedly increased awareness of their existence. The initiation of MHCs required the melding of two professions with...
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The Psychology of Pretrial Identification Procedures: The Showup Is Showing out and Undermining the Criminal Justice System
I. INTRODUCTION Over the last century, scholars have studied the relevance of psychological influences and their growing presence in the legal context, specifically in criminal law. As a result, the areas of eyewitness identification, trial testimony,...
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Lie Detection: A Changing of the Guard in the Quest for Truth in Court?
I. INTRODUCTION Throughout history, human beings have sought to develop more effective methods of lie detection. (1) Lie detection remains a particularly important issue for members of the legal, criminal justice, and medical communities. (2) Courts,...
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A Certainty of Hopelessness: Debt, Depression, and the Discharge of Student Loans under the Bankruptcy Code
I. INTRODUCTION In 1978, Congress began to place strict limits on the dischargeability of student loans pursuant to the Bankruptcy Code, and has continued to increase these restrictions in the thirty years since. (1) Currently, courts consider whether...
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Whether States Should Create Prescription Power for Psychologists
I. INTRODUCTION Today, in addition to physicians, dentists, optometrists, podiatrists, and nurses with various advanced degrees all have some prescription power in most states. (1) But whether psychologists should be able to prescribe medications...
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Vol. 32, Spring

Social Framework Analysis as Inadmissible "Character" Evidence
I. INTRODUCTION AND SCOPE OF THE ARTICLE Employment discrimination class actions succeed in being certified only if plaintiffs can demonstrate that the alleged injuries to putative class members have a common source. While allegations of a "pattern...
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I Want to Apologize, but I Don't Want Everyone to Know: A Public Apology as Pretrial Publicity between a Criminal and Civil Case
I. INTRODUCTION Criminal sexual assault charges against professional basketball player Kobe Bryant were dropped on September 1, 2004. (1) One reason why the charges were dropped was that his accuser refused to testify about the incident in criminal...
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Our Existential Death Penalty: Judges, Jurors, and Terror Management
Non mortem timemus, sed cogitationem mortis. (1) I. INTRODUCTION For many individuals who see the death penalty as inherently right or wrong, their positions on the death penalty are not swayed by logical debate. For example, those opposed...
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Intuitions about Arousal and Eyewitness Memory: Effects on Mock Jurors' Judgments
I. INTRODUCTION On her way home from work, Barbara stops at a convenience store to pick up some milk and bread. While she is behind the bread rack, a man walks up to the cash register, pulls out a gun, and demands all the money. Barbara hides...
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Rape Shield Laws and Game Theory: The Psychological Effects on Complainants Who File False Rape Allegations
"Better that ten guilty persons escape than that one innocent suffer." (1) Rape is "an accusation easily to be made ... and harder to be defended by the party accused, tho never so innocent." (2) I. INTRODUCTION In the last 40 years rape...
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The Geriatric Sex Offender: Senile or Pedophile?
I. INTRODUCTION Rape, child molestation, and other sexual offenses are undoubtedly among the most egregious crimes that plague our society. In recent years, there has been a significant amount of discussion and research focusing on the motivations...
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Rational Jury Assessment of Damages through Neuroeconomics
I. INTRODUCTION Classical Greek philosopher Plato "described people as driving a chariot drawn by two horses, reason and passions," explaining one of the most fundamental distinctions in human thought processes. (1) American jurisprudence has...
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Differences in Legal and Medical Standards in Determining Sexually Violent Predator Status
I. INTRODUCTION Few crimes elicit public concern, fascination, and outrage like sexual offenses. (1) Furthermore, some of the worst sexual offenses are committed by individuals commonly referred to as "sexually violent predators." Sexually violent...
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Vol. 31, Annual

The Effects of Using Social Scientific Rape Typologies on Juror Decisions to Convict
I. INTRODUCTION AND STATEMENT OF THE RESEARCH PROBLEM Rape prosecutions present unique difficulties for the justice system. (1) According to the Bureau of Justice Statistics, rape remains one of the most under-reported of all crimes, as only 36%...
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A Call for Precedential Heads: Why the Supreme Court's Eyewitness Identification Jurisprudence Is Anachronistic and Out-of-Step with the Empirical Reality
All the evidence points rather strikingly to the conclusion that there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, "That's the one!" (1) Do you solemnly swear before...
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Explaining Juvenile False Confessions: Adolescent Development and Police Interrogation
I. INTRODUCTION In May 1998, sixteen-year-old Allen Chesnet cut his hand while working in his Maryland basement. (1) A reporter noticed Allen's bleeding hand while researching a story on a murder victim who lived nearby. (2) Suspecting Allen's involvement...
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"Mock" Mock Juries: A Field Experiment on the Ecological Validity of Jury Simulations
I. INTRODUCTION In an effort to provide insight for legal and public policy decisionmaking, jury researchers conduct jury simulation experiments because they can be performed in a repeatable and scientific manner, whereas systematic studies of juror...
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Gender Matters in the Insanity Defense
To focus on gender is to question everything. (1) I. INTRODUCTION Gender has been well-established as a fruitful subject of research with an extensive body of literature. Yet some experts contend that, given the impact gender can have in a court...
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The Judicial Response to Psychopathic Criminals: Utilitarianism over Retribution
For centuries, mentally ill criminals have proved themselves a grave difficulty for the judicial system. (1) However, recent advances in science and psychology have provided a better understanding of the effects of various mental disorders and diseases....
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The University-Student Relationship Amidst Increasing Rates of Student Suicide
The rate of suicide among people between the ages of fifteen and twenty-four has tripled in the last half century, (1) rising to a level some experts deem "epidemic." (2) Suicide is the second leading cause of death among this age group, (3) yet the...
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Atkins' Wake: How the States Have Shunned Responsibility for the Mentally Retarded
Few issues in the United States have divided public sentiment in the way that the death penalty has. Whatever number may disapprove of the punishment in general, a greater majority are opposed to its use on the insane or the incompetent. (1) Until...
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The Role of News Media in Shaping and Transforming the Public Perception of Mexican Immigration and the Laws Involved
I. INTRODUCTION The news media is a powerful tool because it provides the public with crucial information; but more importantly, the manner in which news pieces are presented can determine how viewers form their opinions about different public issues....
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Criminal Insanity and Mens Rea: A Discussion of Alabama Insanity Law and the Role of Psychiatrists in Determining Criminal Insanity
In Clark v. Arizona, (1) the United States Supreme Court restricted a defendant's use of mental illness evidence to the insanity defense, (2) rejecting Clark's argument that mental illness evidence should be allowed for the purpose of negating mens...
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Selecting the Guilty Perpetrator: An Examination of the Effectiveness of Sequential Lineups
Justice cannot be for one side alone, but must be for both. (1) I. INTRODUCTION In September of 1985 at a criminal trial, a rape victim pointed to Dennis Brown and exclaimed, "[h]e's the man." (2) She motioned close to her nose and further elaborated,...
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