Criminal Procedure and Racial Injustice (Aspen Casebooks)

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Criminal Procedure and Racial Injustice brings a sustained emphasis on race to the traditional content of criminal procedure. Rather than a wholesale revision of the standard criminal procedure fare, it amply covers all the familiar subject matter areas while integrating into those topics the roles that racial prejudice and racial disparities have played and continue to play in the criminal justice system.

For example, the Investigative volume of the book looks deeply into the role that race—mostly implicitly—played not only in the Court’s written decision of Terry v. Ohio but also in the trial and appellate advocacy that produced that decision, including the direct and cross-examinations in the suppression hearing.

The Adjudicative volume looks closely at the role that race has played in the makeup of juries in criminal trials, including defense counsel’s ability to pursue voir dire questioning of potential jurors to screen for racial bias; the historical use by prosecutors of peremptory challenges to eliminate Black potential jurors, and the attempt to eliminate that practice by the Supreme Court in Batson v. Kentucky; and the perils of cross-race eyewitness identification in criminal trials.

A secondary focus of the book is lawyering—the decisions and tactics of the prosecutors and defense lawyers that undergird the cases in the book. To that end, the plentiful Notes and Questions following the cases provoke thought and discussion not only on the relevant legal doctrine and the racial implications of the doctrine, but also on the choices made by the prosecutors and defense counsel.

Benefits for instructors and students:

• Flexible organization
• Interesting, timely cases
• Sophisticated, robust notes and questions following each case
• Investigative chapters:
  • Police Interrogation and the Fifth Amendment—the scope of the Fifth Amendment privilege; the backdrop for and decision in Miranda v. Arizona; the implementation of Miranda’s custody; interrogation and waiver/assertion components; and the durability of Miranda
  • The Fourth Amendment—the definitions of search and seizure; the “warrant requirement” and its exceptions; and the landmark case of Terry v. Ohio and its legacies for racial profiling, traffic stops, etc.
  • The Exclusionary Rule—the origins of the rule and its exceptions (good faith, attenuation, standing, etc.) and including a section on suppression hearings
  • The Grand Jury—its purported independence, informality, and secrecy; its virtually unlimited power to subpoena witnesses and documents; and grand jury abuse
  • Addressing Police Misconduct—an unconventional chapter exploring the Supreme Court’s resurrection of 42 U.S.C. § 1983 as a private remedy for civil rights violations, the victims of which are disproportionately members of minority groups; the Court’s subsequent weakening of that remedy through doctrines such as qualified immunity; and the Department of Justice’s administrative remedy to address a “pattern and practice” of police misconduct under 42 U.S.C. § 14141. This subject has become increasingly important in the Criminal Procedure realm as recent Supreme Court decisions rejecting application of the exclusionary rule have sometimes cited § 1983 as an adequate alternative remedy.
• Adjudicative chapters:
  • The Right to Counsel and Criminal Defense—including claims for ineffective assistance of counsel and the chronic underfunding of public indigent defense
  • The Prosecution Function—the enormous discretion, power and ethical responsibilities of that office
  • Pleas and Plea Bargaining—which account for the resolution of over 95% of criminal cases without a trial or any substantial judicial involvement
  • The Right to a Jury Trial—including a glimpse at the surprising results generated by an “originalist” perspective on the right
  • Eyewitness Identification—the fallibility of which has become even clearer in the era of demonstrably wrongful convictions
  • Incarceration—including a look at bail/pretrial detention and the racially unequal impacts of the death penalty and the legislative crack/cocaine disparity
  • Two unconventional chapters—Discriminatory Enforcement, which considers, among other things, the high hurdles in making such claims; and The Department of Justice and the Prosecution of Civil Rights Crimes, which broadly examines DOJ enforcement policies from Reconstruction through notable police violence cases of the 21st century