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The Faculty/ Researcher Works collection focuses on research, scholarship, and creative works, as well as materials that primarily reflect the intellectual environment of the Temple University campus.

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  • Mandatory Mitigation: An Eighth Amendment Mandate to Require Presentation of Mitigation Evidence, Even When the Sentencing Trial Defendant Wishes to Die

    Epstein, Jules (2011)
    The Eighth Amendment’s mandate in death penalty proceedings is to “ensure that only the most deserving of execution are put to death[.]” This Article continues development of a thesis of this author, presented in an earlier piece, that it is cruel and unusual punishment to execute those who are not “most deserving,” and that the determination of this must include consideration of mitigation evidence. From this conclusion flows a second one, the focus of this Article - because the Eighth Amendment prohibition against cruel and unusual punishment is a limitation on society’s power, an individual may not consent and submit himself to a punishment that society itself is banned from imposing. A regime of “mandatory mitigation,” overriding a defendant’s wish that no evidence in support of a life sentence be presented, is the only way to ensure that a resulting death sentence does not constitute cruel and unusual punishment by guaranteeing that the fact finder have the information necessary to determine whether he/she is within the narrow class of “most deserving,” at times denominated “the worst of the worst.” The Article shows that such a conclusion is not incompatible with decisional law under the Sixth Amendment that accords an accused the right of self-representation, and with that the right to “preserve actual control over the case he chooses to present to the jury.”
  • Death-Worthiness and Prosecutorial Discretion in Capital Case Charging

    Epstein, Jules (2010)
    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.”
  • Tri-State Vagaries: The Varying Responses of Delaware, New Jersey, and Pennsylvania to the Phenomenon of Mistaken Identifications

    Epstein, Jules (2006)
    Mistaken identifications vex the criminal law, and are a manifest and well-documented source of wrongful convictions. Remediation of this problem requires an understanding of both the psychology of witness perception, memory and recall and the many points in the criminal law process - both investigative and adjudicative - where identification issues loom - lineups and photo arrays; suppression hearings; the direct and cross-examination of eyewitnesses; opening and closing statements; and jury instructions. This Article examines the psychological findings of more than a quarter century and uses the law of three adjoining states - Delaware, New Jersey, and Pennsylvania - to examine how the legal system responds to (or ignores) these findings, with a goal toward identifying areas where improvements in the legal process can increase confidence and accuracy in eyewitness-based prosecutions.
  • Cross-Examination: Seemingly Ubiquitous, Purportedly Omnipotent, and “At Risk”

    Epstein, Jules (2009)
    Cross-examination is viewed as a core aspect of the trial process, both criminal and civil, and its use and purported power are omnipresent in the American adjudicative system. Indeed, this role is confirmed in the abundance of literature (both fictional and educational) involving cross-examination, and its increasing prominence in the law school curriculum. This article confirms the exalted status cross-examination has achieved and arguably retains in the American trial and fact-finding process, while simultaneously identifying its frailties: its ineffectiveness as a truth-discerning tool in varying contexts; trends in constitutional law that will eliminate the requirement of cross-examination for expanding categories of witnesses; and the impact of technology and popular media on the learning processes and expectations of jurors. Particularly because of the transformation of hearsay law and the continuing trend toward visual rather than aural learning and knowledge accumulation, cross-examination may play a reduced role in the trial process and its form may need to be reinvented.
  • Ruminations on an Ethical Issue When Examining the Child Witness: Zealous Advocacy or Destroying Evidence

    Epstein, Jules (2013)
    The prosecution of Earl Bradley, based on a cache of videotape evidence confirming horrific abuse of children by their pediatrician, resolved without testimony from a single child victim/witness. Yet the spectre of a possible trial in a case such as this brings with it significant questions of professional responsibility regarding the questioning of child witnesses. In a symposium devoted to the Bradley case, a hypothetical was posed to the audience asking whether defense counsel may ‘trigger’ a child witness’ fear, rendering her unavailable to testify. The precise hypothetical asked whether, when a client tells counsel “just mention the words ‘Nightmare on Elm Street’ and the child will freeze and not say a word,” counsel may then use that phrase in a question at a pre-trial competence hearing or at trial (ensuring the child’s inability to testify). Because the audience participation discussion failed to answer the question, this rumination on the problem followed. It examines the Model Rules, and determines, ultimately, that it is only by informing those rules with criminal law provisions [particular witness tampering statutes] and considerations of evidentiary relevance that a conclusive resolution can be made. Whether a concussive physical act or a concussive question, when there is no evidentiary relevance and the intent is to procure unavailability, the conduct is banned. That this leaves tremendous opportunity for zealous advocacy, even with the heightened stakes in a trial for charges of child abuse, is without doubt. But an attack on the right to testify based on extra-legal matters has no place in the courtroom, or in any lawyer’s arsenal.
  • Preferring the Wise Man to Science: The Failure of Courts and Non-Litigation Mechanisms to Demand Validity in Forensic Matching Testimony

    Epstein, Jules (2014)
    The 2009 report Strengthening Forensic Science: A Path Forward, issued by the National Research Council of the National Academy of Sciences, made clear that many forensic disciplines - handwriting analysis, latent print [fingerprint] comparison, ballistics matching, fire [arson] causation and more - lacked a foundation in hard science and offered claims of "individualization" [attributing the crime scene evidence to only one possible source in the world] without a proper research foundation. The Report described the judicial system as "utterly ineffective" in understanding the limits of these disciplines and policing admissibility. Five years later, virtually no change has occurred, with such evidence continuing to come in without qualification or tempering. This Article reviews the post-report years and assesses the causes of this stasis - the lack of rigor in the Frye and Daubert admissibility regimes, the scientific 'illiteracy' of many legal professionals, inadequate funding for expert services, and a comfort with the status quo of evidence relied upon for decades. The Article then surveys non-litigation mechanisms such as forensic science commissions and finds them also wanting in their ability to respond to the Report's criticisms. The Article concludes that a tolerance of "wise man" testimony over science will persist, absent crises such as DNA exonerations that expose flawed forensics, unless a major institutional push occurs or there is a new stringency imported into the "gatekeeping" function performed by judges.
  • The Great Engine that Couldn't: Science, Mistaken Identifications, and the Limits of Cross-Examination

    Esptein, Jules (2007)
    Wigmore's assertion that cross-examination is the greatest engine for the search for the truth comes with a caveat: it works best for the untruthful witness, or for eliciting facts known to the witness but not acknowledged on direct examination. In the typical eyewitness-based prosecution, neither condition obtains. The eyewitness is not untruthful but may be mistaken; and eyewitnesses do not know the factors [weapons focus, the deleterious effect of stress on eyewitness accuracy, the problem of "own-race bias" in cross-racial crimes] that may have caused the mistake. This article traces cross-examination to its origins and demonstrates that its utility (as originally intended and as developed over centuries) is limited in eyewitness cases. The article concludes that other tools - better jury instructions, and the use of expert witnesses - are essential to ensure a complete search for truth in identification cases.
  • Avoiding Trial by Rumor: Identifying the Due Process Threshold for the Hearsay Evidence after the Demise of the Ohio v. Roberts Reliability Standard

    Esptein, Jules (2008)
    This Article responds to the dictum in Whorton v. Bockting that "the Confrontation Clause has no application to [nontestimonial hearsay statements] and therefore permits their admission even if they lack indicia of reliability." The Article proposes that there remains a Due Process threshold for hearsay exceptions in criminal cases, one that mandates proof of first hand knowledge and a named declarant; and "non-deferential judicial scrutiny" for legislative enactments of new hearsay exceptions.
  • Irreparable Misidentifications and Reliability: Reassessing the Threshold for Admissibility of Eyewitness Identification

    Esptein, Jules (2013)
    To be admitted at trial, an eyewitness identification resulting from a police-conducted procedure must be "reliable" notwithstanding any suggestivity in the identification process, a point emphatically reaffirmed by the Court in Perry v. New Hampshire. While great attention has been focused on what factors are to be weighed in determining reliability, little discussion has been had regarding the level of reliability, i.e., how sure a reviewing judge must be that the identification claim of "that’s the man" is indeed accurate. While the Court in the past has identified this as an "evidentiary" claim, to be evaluated on whether the identification has possible validity, it has simultaneously linked that determination to two criteria – that what must be avoided are "irreparable" mistaken identifications and that the evidence must be such that a jury can intelligently weigh it. Because DNA exonerations and ample research have shown that factfinders – both jurors and judges – often are incapable of discerning when an identification is erroneous, this Article proposes a sliding scale Due Process test for quantifying reliability. Even where a reviewing court must apply the traditional reliability criteria, the sliding scale test requires a suppression court judge to assess – in light of the jurisdiction’s safeguards such as expert testimony and science-based jury instructions – whether a jury will have enough information to intelligently weigh the identification testimony and avoid an irreparable mistaken identification. The fewer tools available to the jury, the more stringent the reliability determination must be to ensure the Due Process mandate.
  • Forensic Science(s) in the Courtroom

    Slights, Joseph R., III; Epstein, Jules; Schwind, Lisa M., Esq.; Spadaccini, Gerard, Esq.; Ranadive, Anjali A. (2014)
  • The “Ohlbaum Paper” And Advocacy Scholarship—Why Now?

    Esptein, Jules (2016)
    This brief Article has multiple intentions and responsibilities: to introduce this year’s (and the inaugural) Edward Ohlbaum Annual Paper in Advocacy Scholarship (“Ohlbaum paper”); to recap Eddie’s contribution to trial advocacy knowledge and instruction; and to contextualize this contribution in a history of advocacy instruction, advocacy writing, and changes in the structure and focus of legal academia.
  • Latent Print Examination and Human Factors: Improving the Practice through a Systems Approach

    Expert Working Group on Human Factors in Latent Print Analysis (2012)
  • Looking Backwards at Old Cases: When Science Moves Forward

    Epstein, Jules (2016)
    Forensic evidence—be it in the form of science-derived analyses such as DNA profiling or drug identification, or in more subjective analyses such as pattern or impression [latent print, handwriting, firearms] examinations—is prevalent and often critical in criminal prosecutions. Yet, while the criminal court processes prize finality of verdicts, science evolves and often proves that earlier analyses were inadequate or plainly wrong. This article examines the tension between those two concerns by focusing on the 2015 decision of the United States Supreme Court in Maryland v. Kulbicki, addresses the inadequacies of the Court’s analysis, and suggests some factors for judges confronted with changing science to weigh when reviewing convictions where the forensic evidence was core to the prosecution’s proof.
  • Principles of Evidence, Seventh Edition: 2020 Supplement

    Younger, Irving; Goldsmith, Michael; Sonenshein, David A.; Bocchino, Anthony J.; Epstein, Jules (2020)

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