Open research questions in Criminal Law and Evidence

What the literature leaves open

• Sentencing disparity dominates in American scholarship and has been leading global research in past decades, however, few studies have addressed sentencing equilibrium across countries.

  Sentencing equilibrium in rape cases: a legal and political explanation of jurisdictional uniformity in China · 2025 · DOI

• Evaluative research on pre-trial alternatives to incarceration inevitably suggests implications for policy. Although additional studies are certainly desirable, especially encompassing larger samples, the following recom- mendations seem appropriate from the results of this research. No compelling reasons were revealed for disqualifying persons eligible for participation in the pre-trial release program. Instead of using pre-trial release staff to determine eligibility, magistrates could be given instruction and assistance to enable them to determine whether defendants are eligible under the criteria indicated in Appendix A. Magistrates should be encouraged to consider placing persons they plan to release on unsecured appearance bond under the supervision of a pre-trial release program, since overall this was the only form of bond for disqualified arrestees that evidenced statistically signifi- cant differences from the PTR defendants in nonappearance. The time spent in investigation to screen persons for pre-trial release might be better spent in supervision and assistance in making court appearances of a larger number of persons assigned to a pre-trial release program. Making the PTR program available to all persons eligible rather than rely- ing on a point system could be done on an experimental basis. Defendants eligible for pre-trial release might be given the options of posting cash or property bond, securing the services of a bail bondsman, or participating in the pre-trial release program with unsecured appearance bond. Offering these options could reduce the time spent in jail, an important difference between PTR and disqualified defendants in our study, especially for persons on unsecured appearance bond who were found to include especially large proportions retained in jail for more than one day. Comparing the results could further clarify the role of supervision in increasing the probability of court appearance. Expansion of the use of pre-trial release programs may very well increase the nonappearance rate slightly; e.g., Thomas (1976) found small increases in nonappearance rates as the proportion of arrestees who were released from jail increased. However, this disadvantage would be offset by the savings to the public (cost of jail) and to the defendants (the cost of bond). As more courts initiate pre-trial release programs, it might be possible to enter into reciprocal arrangements whereby a defendant charged in a county non- contiguous to his (her) county of residence might be supervised by the pre-trial

  Should Pre-Trial Release Programs Be Expanded? · 1986 · DOI

• The fine line between personal perception and covert surveillance. The need to balance individual privacy with the need for information gathering. The complexity of regulating private detectives' work.

  Similar, but Not the Same – Personal Perception and Covert Surveillance and Tracking Through The Prism of Legal Regulations, Practical Implementation And Case-Law in Slovenia · 2026 · DOI

• The authorization process for covert surveillance and tracking measures by state authorities conducting intelligence operations requires specification of how authorization decisions differentiate between threats to national security versus counter-intelligence tasks in Slovenian practice. The paper does not clarify whether SOVA and other state intelligence agencies apply distinct authorization criteria or employ a unified standard.

  Similar, but Not the Same – Personal Perception and Covert Surveillance and Tracking Through The Prism of Legal Regulations, Practical Implementation And Case-Law in Slovenia · 2026 · DOI

• To prevent the expansive discretion and overbreadth characteristic of general warrants, this Article proposes a tripartite standard requiring that geofence warrants be limited to the scope of probable cause, confined to a narrow temporal window, and restricted to a geographic area closely tied to the alleged crime.

  The Fourth Amendment and Geofence Warrants: Safeguarding Geofencing's Constitutionality Through Particularity and Reasonableness · 2026

• The current model does not account for situations requiring immediate response. There is a gap between the formal initiation of criminal proceedings and the practical actions taken.

  Ensuring the legality of urgent investigative (search) actions prior to the entry of information into the Unified Register of Pre-trial Investigations: practical aspects and risks of evidence being ruled inadmissible · 2026 · DOI

• Ensuring the effective implementation of the principle of presumption of innocence is a challenge. The People’s Procuracy must balance its role in exercising prosecutorial power with the need to protect human dignity and fundamental rights.

  Prosecutorial responsibility and the presumption of innocence in the legal philosophy of the modern rule of law state · 2026 · DOI

• Future research should focus on implementing the proposed reforms. Further studies should examine the effectiveness of the reforms in strengthening prosecutorial accountability.

  Prosecutorial responsibility and the presumption of innocence in the legal philosophy of the modern rule of law state · 2026 · DOI

• The lack of a reliable estimate of the number of sections within the U.S. Code that contain one or more crimes. The need for a new algorithm to quantify the number of statutes that create federal crimes.

  Front‐Footed Defense: Leveraging Early Counsel Intervention for Expedited Justice · 2026 · DOI

• The paper identifies the challenge of exploring the agency of the dead, which is a complex and multifaceted concept. The paper also identifies the challenge of using an autoethnographic approach, which can be subjective and limited in its generalizability.

  Murder Trials and the Dead: Absence, Presence and Agency · 2026 · DOI

• The paper suggests that future research should explore the agency of the dead in different contexts, including non-violent deaths and deaths in different cultural settings. The paper also suggests that future research should examine the ways in which the dead can influence the living, particularly in the context of bereavement and grief.

  Murder Trials and the Dead: Absence, Presence and Agency · 2026 · DOI

• The complexity of the legal framework may make it difficult to clarify the prosecutor's role in the review procedure. The lack of clear guidelines may lead to confusion and inconsistencies in the application of the law.

  Legal status of the prosecutor in the review procedure of criminal cases · 2026 · DOI

• The current legislation does not provide clear guidelines for the prosecutor's role in the review procedure. The exclusion of the prosecutor's attributions and obligations by Law No. 246/2023 may have created gaps in the legislative framework.

  Legal status of the prosecutor in the review procedure of criminal cases · 2026 · DOI

• The paper identifies a gap in the literature, as the logic of ω-sequence semantics has never been explored. The paper aims to fill this gap by axiomatizing the logic of ω-sequence semantics and exploring its properties and implications.

  Sequence and consequence · 2026 · DOI

• There is a lack of understanding of the factors that influence prosecutorial decision-making practices related to plea bargaining strategies involving case dismissal. Prior research has focused on the importance of legal factors in criminal court outcomes, but there is a need to explore the role of extra-legal factors.

  Legal and Extra-legal Determinants of Prosecutorial Case Dismissal: Plea Agreements, Deferred Adjudication, and Pretrial Diversion · 2026 · DOI

• The paper identifies the challenge of defining and enforcing criminal laws in a way that balances the need for overinclusiveness with the wrongness constraint. It discusses the epistemic difficulties that afflict the definition of certain offences. The paper argues that the state faces non-ideal conditions such as epistemic limits and resource constraints.

  Duties to Criminalize Overinclusively · 2026 · DOI

• The paper identifies a gap in the understanding of the need for overinclusive offences. It argues that consequentialist considerations are misconceived and lead to a mischaracterization of the tension between overinclusive offences and the wrongness constraint. The paper claims to fill this gap by proposing a moral framework that allows for moral conflicts.

  Duties to Criminalize Overinclusively · 2026 · DOI

• Although the practical benefits of forensic DNA phenotyping (FDP) in criminal investigations remain unclear, this emerging forensic technology is the subject of increasing interest from various European stakeholders.

  Forensic DNA phenotyping: Privacy breach, bias reification and the pitfalls of abstract assessments of rights · 2023 · DOI

• The issue of ensuring judicial control over the extension of the pre-trial investigation period until the person is notified of the suspicion. The consequences of its cancellation.

  SOME ASPECTS OF THE EFFECTIVENESS OF LEGAL REGULATION OF THE EXTENSION OF PRE-TRIAL INVESTIGATION PERIODS UNTIL THE NOTIFICATION OF A PERSON ABOUT SUSPICION · 2023 · DOI

• Taking this gap in the literature as our starting point, and flagging an emerging debate in the ICC as to whether the ICC Statute envisages a ‘pre-preliminary examination’ stage at all, this article examines the law and policy which governs the opening of an ICC preliminary examination and makes the case for further critical discussion about how actions by the Prosecutor and the Court at this early stage of proceedings might affect perceptions of the legitimacy of the ICC.

  Lifting the Curtain · 2018 · DOI

• To address this gap in the literature and to inform policy regarding rape kit testing, we randomly sampled 700 previously untested SAKs from Detroit, MI: 350 were presumed to be beyond the SOL for prosecution (based on the date the SAK was collected), and 350 were still within the SOL.

  Developing Empirically Informed Policies for Sexual Assault Kit DNA Testing: Is It Too Late to Test Kits Beyond the Statute of Limitations? · 2016 · DOI

• The institutional design of the prosecutorial organ varies across time and across countries, which raises an important, yet quite understudied question: Does institutional design matter for how states respond to human rights violations and, if so, how? In this article, I develop a theoretical framework that highlights the importance of prosecutorial independence and prosecutorial accountability.

  The role of prosecutorial independence and prosecutorial accountability in domestic human rights trials · 2015 · DOI

• (12) Finally, Part IV concludes that each of these alternatives is insufficient to cover the wrongfully acquitted in any meaningful way, and more importantly, are an end run around a historically valuable constitutional right enjoyed by defendants.

  The Double Jeopardy Clause, Newly Discovered Evidence, and an "Unofficial" Exception to Double Jeopardy: A Comparative International Perspective · 2013

• The Law Commission's Report left several issues concerning the admissibility of confessions in the context of its proposed hearsay regime unclear, some of which have not yet been clarified by the post-2003 Act jurisprudence.

  Confessions and the Criminal Justice Act 2003 · 2013 · DOI

• Finding no standard, the author reviews survey results on what constitutes common practice among forensic evaluators as to when litigants should be retested with the MMPI-2.

  When are MMPI-2 Test Results Considered “Outdated” For Use in a Child Custody Case? · 2012 · DOI

Most-cited papers in Criminal Law and Evidence

• Trial by Mathematics: Precision and Ritual in the Legal Process · Harvard Law Review · 1971 · 388 citations
• Police-induced confessions: Risk factors and recommendations. · Law and Human Behavior · 2009 · 383 citations
• Improving eyewitness identifications from lineups: Simultaneous versus sequential lineup presentation. · Journal of Applied Psychology · 1985 · 348 citations
• Form and Substance in Private Law Adjudication · Harvard Law Review · 1976 · 339 citations
• Fugitive Justice · Representations · 2005 · 303 citations
• On the Psychology of Confessions: Does Innocence Put Innocents at Risk? · American Psychologist · 2005 · 269 citations
• Prosecutorial Discretion: The Effects of Uncertainty · Law & Society Review · 1987 · 240 citations
• The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts · Journal of Empirical Legal Studies · 2004 · 232 citations
• The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion · California Law Review · 2002 · 218 citations
• Policy and procedure recommendations for the collection and preservation of eyewitness identification evidence. · Law and Human Behavior · 2020 · 205 citations

Most recent work

• Similar, but Not the Same – Personal Perception and Covert Surveillance and Tracking Through The Prism of Legal Regulations, Practical Implementation And Case-Law in Slovenia · Medicine, Law & Society · 2026
• Ensuring the legality of urgent investigative (search) actions prior to the entry of information into the Unified Register of Pre-trial Investigations: practical aspects and risks of evidence being ruled inadmissible · Прикарпатський юридичний вісник · 2026
• Prosecutorial responsibility and the presumption of innocence in the legal philosophy of the modern rule of law state · Aufklärung: Journal of Philosophy · 2026
• 250 Years of Judicial Warrants: The Exceptions That Prove the Rule · Social Education · 2026
• Front‐Footed Defense: Leveraging Early Counsel Intervention for Expedited Justice · Law & Policy · 2026
• The conceptualisation of ‘procedural justice’ for victims and defendants: Different strokes for similar folks? · International Review of Victimology · 2026
• “Cerberus at the Gate”: The Fundamental Connection between Prosecutorial Discretion and Justice · Criminal Justice Ethics · 2026
• Explicit specification of the prior probability of the prosecutor’s hypothesis in Bayesian networks · Law Probability and Risk · 2026
• Randomly Albright: The End of Judge Shopping in the Western District of Texas? · Journal of Empirical Legal Studies · 2026
• ESSENCE, TASKS AND PURPOSE OF IDENTIFICATION PROCEEDINGS IN CRIMINAL PROCEDURE · Journal of Social Sciences · 2026

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