Haynes Professor of Law
Office phone: (757) 221-3900
Office location: Room 205
Areas of Specialization
Comparative and Foreign Law; Constitutional Law--4th, 5th, 6th Amendments; Criminal Law; Criminal Procedure Law; Entertainment and Sports Law; Intellectual Property Law--Copyright Law; Law and Literature
Criminal Law; Criminal Procedure; Entertainment Litigation; Copyright Law; Advanced Criminal Justice
Representative Professional Activities and Achievements
Joined the faculty in 1992. Clerked for the U.S. Court of Appeals for the District of Columbia Circuit. Practiced law at Loeb and Loeb in Los Angeles. Served as Dean of the University of Arizona School of Law, taught at the University of Illinois School of Law and was a visiting professor at the University of Geneva, University of Melbourne, University of Puerto Rico, University of San Diego and the University of Texas.
Author of Criminal Procedure in Practice, The Entrapment Defense, The Prosecution and Defense of Criminal Conspiracy Cases, and articles in the American Journal of Comparative Law and the Cornell, Georgetown, William and Mary, Florida, Southern California, and American Criminal law reviews. Co-author of Copyright and other Aspects of Law Pertaining to Literary, Musical and Artistic Works; Criminal Law: Cases and Materials; and Criminal Procedure: Cases and Materials.
Recently served as President of the Association of American Law Schools and completed a three year term on the AALS Executive Committee. President, AALS Fellows. Member of the American Bar Association Committees on the Rules of Criminal Procedure and Evidence, International Criminal Law, and Law School Curriculum. Co-reporter for the National Right to Counsel Committee, 2004-2007. Founder of the Literature and the Law Program at the Central Virginia Regional Jail. Frequently interviewed by the media (Wall Street Journal, New York Times, Washington Post, Los Angeles Times, CBS, NPR, ABC) as an expert in criminal law and procedure. 2017 Recipient of the McGlothlin Teaching Award for Classroom Excellence, Recipient of the Distinguished Citizen of the Year Award, University of Arizona; Volunteer of the Year Award, Williamsburg Big Brothers Mentoring Program; the Walter L. Williams, Jr. Teaching Award; and was selected in 2010, to receive the Commonwealth's Outstanding Faculty Award, the state's highest honor for professors.
Working in the criminal justice area is challenging and exciting for both me and our students. On a daily basis we confront a host of problems relating to crime, the trial process, and the role of law enforcement in a free society. We consider questions such as protection of privacy under the search and seizure provision of the Constitution, the implications of the privilege against self-incrimination, the right to confront one's accusers, and the broad-based need for representation in criminal cases. The questions are tough, the answers can be quite troubling. In addition, numerous ethical issues occur regularly in class. We wonder how the defense counsel can represent the "guilty" client. Students ask how far a prosecutor can go in trying a difficult case; we consider the role of the judge in ensuring that both sides are fairly and adequately represented.
- Gilbert Law Summary: Criminal Procedure (Thompson Publishing, 22 editions 2021) (with Melanie Wilson).
- The Rights of the Accused Under the Sixth Amendment (ABA Publishing 3d ed. 2021) (with David K. Duncan, Tommy E. Miller & Joelle Anne Moreno).
- Criminal Law: Cases and Materials (Carolina Academic Press 9th ed. 2020) (with L. Malone, C. Drinan & W. Berry) (with teacher's manual). [7th Edition, 2012; 6th Edition, 957 pp.; 5th Edition, 832 pp.; 4th Edition, 891 pp.; 3d Edition, 868 pp.; 2d Edition, 897 pp.].
- The Prosecution and Defense of Criminal Conspiracy Cases (LexisNexis 2020) (annual supplement) [2 volumes with 10 revisions].
- Criminal Procedure: Cases and Materials (Carolina Academic Press 9th ed. 2019 with Melanie Wilson LexisNexis 8th ed. 2019) (with Joseph G. Cook & Melanie Wilson) (annual supplements & teacher's manuals) [7th Edition (2009); 6th Edition, 884 pp.; 5th Edition, 859 pp.; 4th Edition, 904 pp., 3d Edition, 860 pp.].
- Questions and Answers in Criminal law (Lexis & Co. 5th ed. 2018) (with Emily Levine) [3d Edition, 150 pp.; 2d Edition, 150 pp.].
- The Entrapment Defense (LexisNexis 5th ed. 2016) (annual supplements). [3d Edition, 747 pp.; 2d Edition, 742 pp.].
- Cases and Materials on Copyright and Other Aspects of Entertainment Litigation Including Unfair Competition, Defamation, Privacy (LexisNexis 8th ed. 2014) (with David A. Myers & David Nimmer)[7th Edition, 1341 pp.] (annual supplement).
- Cases and Materials on Copyright and Other Aspects of Entertainment Litigation Including Unfair Competition, Defamation, Privacy (LexisNexis 8th ed. 2012) (with David A. Myers & David Nimmer) [7th Edition, 1341 pp.].
- Criminal Procedure in Practice (ABA Publishing Press 3d ed. 2009) (with Melanie Wilson, commentary by Jack Zimmermann) [5th Edition, 400 pp 2018].
- Questions and Answers in Criminal law (Lexis & Co. 2003) (with Emily Levine).
- Criminal Procedure in Practice (NITA Press 2001) (commentary by Jack Zimmermann).
- Chair and Draftsman, Drug Testing in the Workplace, A Substance Abuse Testing Acy ( Inst. of Bill of Rts. L. 1991).
- The Entrapment Defense (Michie & Co. 1989) (annual supplements).
- Criminal Law: Cases and Materials (Matthew Bender 1982) (with Joseph G. Cook) (annual supplements & teacher's manual).
- Criminal Procedure: Cases and Materials (Matthew Bender 1981) (with Joseph G. Cook) (annual supplements and teacher's manual).
- The Prosecution and Defense of Criminal Conspiracy Cases (Matthew Bender 1978) (10 revisions, 2 vols., annual supplements) [Vol. 1, 737 pp.; Vol. 2, 746; Supplement, 54 pp.].
- Gilbert Law Summary: Criminal Procedure (Harcourt, Brace, Jovanovich 1977) (with Melanie Wilson).
Articles and Book Chapters
- A Comparative Examination of Police Interrogation of Criminal Suspects in Australia, Canada, England and Wales, New Zealand, and the United States, 29 Wm. & Mary Bill Rts. J. 909 (2021) (with Carol A. Brooks, et al.).
- Gideon v. Wainwright: The Surprising Power of a Prisoner Petition, 48 in Painting Constitutional Law (Brill Nijhof 2020) (with Mary Sue Backus). Online.
- Paul Marcus, When is Police Interrogation Really Police Interrogation? A Look at the Application of the Miranda Mandate, 69 Cath. L. Rev. 445 (2020).
- The Right to Counsel in Criminal Cases: Still A National Crisis, 86 Geo. Wash. L. Rev. 1564 (2018) (with Mary Sue Backus). SSRN.
- The Evolution [or Is It Revolution] of Defamation Standards in the United States: The Impact of New York Times v. Sullivan, in Comparative Perspectives on Freedom of Expression (R. Weaver, ed., Carolina Academic Press 2017).
- The Miranda Custody Requirement and Juveniles, 85 Tenn. L. Rev. 253 (2018). SSRN.
- Education in Los Angeles: Past and Present, in Voices of the Brown Generation: Memories and Reflections of Law Professors (J. Bonnie & M. W. Wigfall eds., Vanderbilt U. Press forthcoming).
- The United States Supreme Court (Mostly) Gives up its Review Role with Ineffective Assistance of Counsel Cases, 100 Minn. L. Rev. 1745 (2016). SSRN.
- A Comparative Look at Plea Bargaining in Australia, Canada, England, New Zealand and the United States, 57 Wm. & Mary L. Rev. 1147 (2016) (with Carol A. Brooks, et al.). SSRN.
- Fighting Corruption in the United States, 2015 Fed. U. Rio Grande do Sul Law Journal (translated into Portuguese).
- The Crime of Conspiracy Thrives in Decisions of the United States Supreme Court, 64 Kan. L. Rev. 373 (2015). SSRN.
- A Tale of Two (and Possibly Three) Atkins: Intellectual Disability and Capital Punishment Twelve Years after The Supreme Court's Creation of a Categorical Bar, 23 Wm. & Mary Bill Rts. J. 393 (2014) (with John H. Blume, Sheri Lynn Johnson & Emily Paavola). SSRN.
- Does Atkins Make A Difference In Non-Capital Cases? Should It?, 23 Wm. & Mary Bill Rts. J. 431 (2014) (symposium article). SSRN.
- Judges Talking to Jurors in Criminal Cases: Why U.S. Judges Do It So Differently from Just About Everyone Else, 30 Az. J. Int'l & Comp. L. 1 (2013). SSRN.
- Australia and the United States: Two Common Criminal Justice Systems Uncommonly at Odds, Part 2, 18 Tul. J. Int'l & Comp. L. 335 (2010) (with Vicki Waye). SSRN.
- Why the United States Supreme Court Got Some (but not a lot) of the Sixth Amendment Right to Counsel Analysis Right, 21 St. Thomas L. Rev. 142 (2009). SSRN.
- Capital Punishment in the United States, and Beyond, 31 Melb. U. L. Rev. 837 (2007). SSRN.
- It's Not Just About Miranda: Determining the Voluntariness of Confessions in Criminal Prosecutions, 40 Val. U. L. Rev. 601 (2006). SSRN.
- The Right to Counsel in Criminal Cases: A National Crisis, 57 Hastings L.J. 1031 (2006) (with Mary Sue Backus). SSRN.
- Australia and the United States: Two Common Criminal Justice Systems Uncommonly at Odds, 12 Tul. J. Int'L & Comp. L. 27 (2004) (with Vicki Waye). SSRN.
- The Entrapment Defense: An Interview, 30 Ohio N.U. L. Rev. 211 (2004).
- Are Virginia Capital Jurors Any Different From the Rest?, 44 Wm. & Mary L. Rev. 2063 (2003) (with Stephen P. Garvey).
- Re-Evaluating Large Multiple-Defendant Criminal Prosecutions, 11 Wm. & Mary Bill Rts. J. 67 (2002). SSRN.
- Correcting Deadly Confusion: Responding to Jury Inquiries in Capital Cases, 85 Cornell L. Rev. 627 (2000) (with Stephen P. Garvey & Sheri Lynn Johnson). SSRN.
- Investigatory Practices and the Changing Entrapment Defense, 36 Crim. L. Bull 238 (2000).
- The Challenge of Prosecuting Organized Crime in the United States: Procedural Issues, 44 Wayne L. Rev. 1379 (1998) (XVI International Congress of Penal Law, U. S. Reporter).
- The Use of Criminal Statutes to Regulate Financial Markets in the United States, 46 Am. J. Comp. L. 589 (1998) (Fifthteenth Congress of the International Academy of Comparative Law, U. S. Reporter on Criminal Law).
- Forum on Attorney's Fees in Copyright Cases: Are We Running Through the Jungle Now or Is the Old Man Still Stuck Down the Road?, 39 Wm. & Mary L. Rev. 65 (1997) (with David Nimmer), reprinted in 19 Ent. L. Rep. 4 (1997) and in Entertainment Publishing and the Arts Handbook 51 (1998-99). SSRN.
- Presenting, Back From the [Almost] Dead, the Entrapment Defense, 47 U. Fla. L. Rev. 205 (1996). SSRN.
- The United States Criminal Justice System: A Brief Overview, Punishing the Convicted Criminal Defendant in the United States, Restrictions on Law Enforcement Investigation and Prosecution of Crime, Proceedings of the Criminal Justice Institute, Federal University of Rio Grande do Sul, Porto Alegra, Brazil. (1996).
- Alternative Penal Sanctions, 42 Am. J. Comp. L. 703 (1994) (Fourteenth Congress of the International Academy of Comparative Law, U. S. National Reporter on Criminal Law).
- Criminal Justice Reforms in the United States, Proceedings of the International Congress of Penal Law (1994) (U. S. Reporter).
- A Return to the "Bright Line" Rule of Miranda, 35 Wm. & Mary L. Rev. 93 (1993). SSRN.
- Criminal Conspiracy Law: Time to Turn Back from an Ever Expanding, Ever More Troubling Area, 1 Wm. & Mary Bill Rts. J. 1 (1992), reprinted in Crim. Prac. L. Rep. (Feb. 1993). SSRN.
- The Fall and Rise of the Entrapment Defense, The Champion, Oct. 1992, at 8.
- Introduction: A Balanced Approach to Drug Testing in the Workplace, 33 Wm. & Mary L. Rev. 1 (1991) (with Rodney A. Smolla) (symposium).
- Limiting Disclosure of Rape Victims' Identities, 64 S. Cal. L. Rev. 1019 (1991) (with T. McMahon). SSRN.
- The Due Process Defense in Entrapment Cases, The Journey Back, 27 Am. Crim. L. Rev. 457 (1990). SSRN.
- The Exclusion of Evidence in the United States, 38 Am. J. Comp. L. 595 (1990) (Thirteenth Congress of the International Academy of Comparative Law, U. S. National Reporter on Criminal Law).
- Defending Miranda, 24 Land & Water Rev. 241 (1989).
- Defense of a Conspiracy Case, in Criminal Defense Techniques (1989).
- Media Reporting and Criminal Trials, and Defense of a Criminal Case, in Criminal Defense Techniques (1989).
- Toward an Expanded View of the Due Process Claim in Entrapment Cases, 6 Ga. St. U. L. Rev. 73 (1989).
- State Constitutional Protection for Defendants in Criminal Prosecutions, 20 Ariz. St. L.J. 151 (1988). SSRN.
- The Miranda Decision Revisited, 57 UMKC L. Rev. 15 (1988) (a debate).
- Proving Entrapment Under the Predisposition Test, 14 Am. J. Crim. L. 53 (1987).
- The Development of Entrapment Law, 33 Wayne L. Rev. 5 (1987).
- Joint Criminal Participation: Establishing Responsibility, Abandonment, 34 Am. J. Comp. L. 479 (1986) (Supp. 1986) (Twelfth Congress of the International Academy of Comparative Law, U. S. National Reporter on Criminal Law).
- The Entrapment Defense and the Procedural Issues: Burden of Proof, Questions of Law and Fact, Inconsistent Defenses, 22 Crim. L. Bull. 197 (1986).
- The Supreme Court and the Privilege Against Self-Incrimination: Has the Burger Court Retreated?, 38 Okla. L. Rev. 719 (1986).
- The Reporter's Privilege: An Analysis of the Common Law, Branzberg v. Hayes, and Recent Statutory Developments, 25 Ariz. L. Rev. 815 (1983).
- White Collar Crime: A Legal Overview, 52 U. Cin. L. Rev. 378 (1983).
- The Media in the Courtroom: Attending, Reporting, Televising Criminal Cases, 57 Ind. L.J. 235 (1982).
- The Model Penal Code's Treatment of Homicide: The 1980 Commentaries, 73 J. Crim. L. & Criminology 811 (1982).
- The Faretta Principle: Self Representation Versus the Right to Counsel, 30 Am. J. Comp. L. 551 (1981) (Supp. 1981) (Eleventh Congress of the International Academy of Comparative Law, U. S. National Reporter on Criminal Law).
- Defending Conspiracy Cases, 16 Trial 61 (1980).
- Co-Conspirator Declarations: The Federal Rules of Evidence and Other Recent Developments, from a Criminal Law Perspective, 7 Am. J. Crim. L. 287 (1979), reprinted in 1981 Crim. L. Rev. 483 (1981).
- The Confrontation Clause and Co-Defendant Confessions: The Drift from Bruton to Parker v. Randolph, 1979 U. Ill. L.F. 559 (1979), reprinted in 1981 Crim. L. Rev. 269 (1981).
- Privacy in the United States, in Law in the U.S.A. in the Bicentennial Era (Tenth Congress of the International Academy of Comparative Law, United States National Co-Reporter on Privacy 1978).
- The Allen Instruction in Criminal Cases: Is the Dynamite Charge about to be Permanently Defused?, 43 Mo. L. Rev. 613 (1978).
- The Proposed Revised Federal Criminal Code: Conspiracy Provisions, 1978 U. Ill. L.F. 379 (1978).
- Conspiracy: The Criminal Agreement, in Theory and in Practice, 65 Geo. L.J. 925 (1977). SSRN.
- Criminal Conspiracy: The State of Mind Crime -- Intent, Proving Intent, Anti-Federal Intent, 1976 U. Ill. L.F. 627 (1976), reprinted in 26 L. Rev. Dig. 5 (1977).
- The Forum of Conscience: Applying Standards Under the Free Exercise Clause, 1973 Duke L.J. 1217 (1973).
- The Philadelphia Plan and Strict Racial Quotas in Federal Contracts, 17 UCLA L. Rev. 817 (1970) (comment).
- Juvenile Justice in the United States, XVII Int'l Congress of Penal L. (2002).
- Conspiracy, in The Oxford Companion to American Law (Oxford U. Press 2001).
- Entrapment, in Encyclopedia of Crime and Justice (Macmillan Publ'g Co. 2000).
- The Process of Interrogating Criminal Suspects in the United States, Proceedings of the World Conference on New Trends in Criminal Investigation, Amsterdam, 1999 (U. S. Reporter).
- The Search and Seizure Provision of the United States Constitution, Ariz. Law., July 1991, at 44.
- 27 Crim. L. Bull. 87 (1990) (reviewing Gottfredson & Hirschi, A Theory of Crime) (book review).
- 35 U. Minn. J. Contemp. Psychol. 325 (1990) (reviewing George Fletcher, A Crime of Self-Defense (1988)) (book review).
- Conspiracy and the Constitution, in Encyclopedia of the American Constitution (Macmillan Publ'g Co. 1990).
- Pattern Criminal Jury Instructions, Part II, Federal Judicial Conference (1986) (Co-Reporter).
- Assault and Battery, Legal Aspects of Suicide, Eyewitness Identification: Constitutional Issues, in Encyclopedia of Crime and Justice (Macmillan Publishing Co. 1983).
- 5 Hastings Int'l & Comp. L. Rev. 235 (1982) (reviewing Dieter Giesen, Medical Malpractice Law: A Comparative Law Study of Civil Responsibility Arising from Medical Care (1981)) (book review).
- Pattern Criminal Jury Instructions, Part I, Federal Judicial Center (1982) (Reporter).