About

Robert P. Mosteller joined the UNC School of Law faculty in 2009 as the J. Dickson Phillips Distinguished Professor of Law. His teaching and research interests focus on the fields of evidence and criminal procedure, as well as various aspects of the criminal justice process. Mosteller is the author of several treatises and textbooks on evidence, including McCormick on Evidence, where he serves as the general editor. He has written numerous articles, essays, and book chapters on topics such as criminal procedure, evidence, indigent defense, innocence, and the death penalty. His work has been published in prominent law reviews including those of California, Duke, Harvard, UNC, Virginia, and the Georgetown Law Journal. Mosteller received his B.A. in history from UNC in 1970, where he was President of Phi Beta Kappa and received the Frank Porter Graham Award. He earned an M.P.P. from Harvard and a J.D. from Yale Law School in 1975. After law school, he clerked for Judge J. Braxton Craven, Jr. of the U.S. Court of Appeals for the Fourth Circuit, and then worked for seven years as a trial and appellate lawyer at the Washington, D.C. Public Defender Service, serving as Director of Training and Chief of the Trial Division. In 1983, he joined the Duke Law School faculty, where he taught for 25 years and served as Chair of Duke University Academic Council. He continues to work on criminal justice issues, including many years as President and Member of the Board of Directors of the North Carolina Center for Death Penalty Litigation.

Research topics

• Law
• Political science
• Criminology
• Psychology
• Law and economics

Selected publications

• Paul Giannelli’s Scholarship of Measured Wisdom, Sophistication, and Significance, and a Man of Diligence, Humor, and Graciousness

  eYLS (Yale Law School) · 2018-01-01

  articleOpen access1st authorCorresponding
  PublisherOA PDF

• N.C. Innocence Inquiry Commission's First Decade: Impressive Successes and Lessons Learned

  SSRN Electronic Journal · 2016-10-10

  articleOpen access1st authorCorresponding

  This article examines the North Carolina Innocence Inquiry Commission in its first decade of operation. The Commission, which was created in 2006 by the North Carolina legislature, is unique in the nation for its structure and charge to investigate and find cases of factual innocence among convicted felons. This article examines the seven cases handled by the Commission where innocence has been found. In them, nine men have been freed, each after serving decades in prison, in murder and rape cases that the evidence developed by the Commission showed they did not commit. The Commission has demonstrated that its general inquisitorial model with broad access to evidence, investigative tenacity and accumulated expertise, and neutrality provide important benefits in finding and documenting evidence of innocence. These seven cases provide fascinating examples of mistakes in the initial investigation and dogged tunnel vision that focused on finding incriminating evidence to convict the incorrectly selected prime suspect(s). They exhibit an abundance of false statements by informers and erroneous tips by reward seekers, erroneous forensic evidence, false confessions, and mistaken eyewitness identifications. The Commission has enjoyed cooperation from law enforcement and prosecutors, but it has also had to overcome resistance by officials defending earlier flawed investigations and prosecutions. In these seven cases, the process succeeded.The examination of these cases and the Commission’s processes show an important and successful new model for rectifying the systemic errors that produce wrongful convictions and evade correction through ordinary adversarial procedures. The Commission’s successes and the lessons learned from its operation deserve examination by other jurisdictions dealing with the persistent failures of our criminal justice system to avoid convicting and incarcerating defendants who are factually innocent.

  Publisher

• N.C. Innocence Inquiry Commission's First Decade: Impressive Success and Lessons Learned

  North Carolina law review · 2016-12-01

  articleOpen access1st authorCorresponding
  Publisher

• In Appreciation: Dean Jack Boger

  North Carolina law review · 2015-01-01

  articleOpen access1st authorCorresponding
  PublisherOA PDF

• Pernicious Inferences: Double Counting and Perception and Evaluation Biases In Criminal Cases

  Faculty publications · 2015-01-01 · 5 citations

  articleOpen access1st authorCorresponding

  As DNA exonerations have brought attention the conviction of innocent defendants, I have noticed a troubling feature of many of the cases. The jury’s decision, although wrong, seemed reasonable because based on multiple strands of independent evidence, all of which had to be erroneous. As one looks closer, however, the evidence is not independent, but the linkages were generally not noticed and sometimes even hidden. The following scenario is one I encountered in practice but hardly noted its dangers. In a robbery case, an identification may be made from the pictures assembled of those suspected in recent robberies, which are reasonable for a robbery squad to use. The array or mug book contains no single target and no clear fillers. If an identification is made of a person on the basis of appearance matching the witness’s memory of the perpetrator and that person has no iron-clad disqualifier (such as confinement in prison when the crime occurred), he becomes not only a suspect but may become a defendant with two items supporting his prosecution. The identification is the first item of incriminating evidence against the suspect. When viewed without knowledge of the criterion used to select the photos shown to the witness, the identification appears to be corroborated by a second independent incriminating fact - the person selected on the basis of physical appearance has a prior record of like offenses. If that prior record includes a quite similar conviction, it may even be admissible at trial as “other crimes” evidence. Clearly these two pieces of evidence are not independent of each other but connected: the individual’s prior record put him in the photo display. Indeed, each of those in the display shares the same incriminating characteristic. Anyone and everyone who might be selected from such photographs would have this second strike against them. However, witnesses and jurors will often effectively perceive the prior record as unique to that person. This double counting or failure to appreciate the co-dependence of evidence arises in a number of different contexts. It may also be involved when informants, particularly “jail house” informants, provide fabricated incriminating statements that they claim were made by the suspect, and a form of double counting is generally part of the story when false confessions are secured from defendants. A number of processes operate to produce and exacerbate the mis-evaluation of evidence. One is contamination. For example, information about an identified suspect’s prior criminal record can filter back to the eyewitnesses, which will generally increase their level of certainty in their identifications. It goes forward to other investigators and prosecutors, influencing their evaluation of other evidence. Subtle psychological influences both contribute to the generation of these pieces of evidence and enhance their perceived strength with jurors. A number of heuristic devices operate on the actors in the process. Several come together under what is often termed “tunnel vision,” which affects investigators and prosecutors causing them to focus attention on this suspect largely to the exclusion of others and of alternative scenarios besides his or her guilt. These pernicious inferences can even affect defense counsel’s perceptions. Others impede accurate analysis of the evidence by jurors. This paper highlights the importance of being sensitive to the potential co-dependence of the types of evidence that are frequently encountered in criminal cases. The impact of such evidence on investigators, prosecutors, and jurors is highlighted and the critical need to ensure independence of proof and proper evaluation is developed.

  PublisherOA PDF

• McCormick's Evidence, 7th (Hornbook Series)

  eYLS (Yale Law School) · 2014-01-01

  articleSenior author

  This single-volume treatise is largely free of citations to authority, but retains the most notable footnotes. Topics covered include preparing and presenting evidence, cross-examination, and the procedure for admitting and excluding evidence. Discusses privilege against self-incrimination, privilege concerning improperly obtained evidence, scientific evidence, and demonstrative evidence. Reviews authentication, the hearsay rule, burdens of proof, and presumptions. Text also identifies current issues.\n- From the Publisher

  Publisher

• McCormick on Evidence, 7th (Practitioner Treatise Series)

  Books · 2013-01-01

  article

  Recognized as the foremost authority on evidence law today, McCormick on Evidence offers comprehensive and authoritative analysis of the rules and theory of evidence.\nWhen there are specific questions of evidence for which a jurisdiction has no precedent, this treatise provides both general theories that may be argued to suggest the answer and varying views from other jurisdictions. Like the Dean McCormick's original text, the Seventh Edition continues to provide a pragmatic approach to the law of evidence.\n- From the Publisher

  Publisher

• "Potential Innocence": Making the Most of a Bleak Environment for Public Support of Indigent Defense

  Faculty publications · 2013-04-01 · 1 citations

  articleOpen access1st authorCorresponding

  An examination of Gideon v. Wainwright 1 after fifty years involves both its past failures and accomplishments and its future impact.Gideon's legacy is enormously positive with the expansion of rights to so many indigent defendants in need of representation against criminal charges that could deny them life and liberty, but its

  PublisherOA PDF

• The Sixth Amendment Rights To Fairness: The Touchstones of Effectiveness and Pragmatism

  Faculty publications · 2013-01-01 · 1 citations

  articleOpen access1st authorCorresponding

  Analyzes the link between the Sixth Amendment to the concept of fairness. Moreover, in trying to protect and extend the functions and interests that lie behind these rights, a systemic view is warranted and helpful. Further examines how the interests of fairness can be furthered by administrative mechanisms and aided by actors in the system beyond defense attorneys and their experts and agents.

  Publisher

• Failures of the Prosecutor’S Duty to “do Justice” in Extraordinary and Ordinary Miscarriages of Justice

  Oxford University Press eBooks · 2012-09-27

  articleOpen access1st authorCorresponding

  This chapter considers the relationship between the American prosecutor and the wrongful conviction phenomenon, as illustrated by contemporary miscarriages of justice. It examines the “Duke Lacrosse Case” and the “Central Park Jogger Case,” both of which involve demonstrated innocence and show the importance of DNA evidence to exonerations. The chapter next moves to a series of other significant but lesser-known examples of injustice and concludes by suggesting that miscarriages of justice can be cured by punishing identified malefactors.

  PublisherOA PDFDOI

Frequent coauthors

• Kenneth S. Broun

  6 shared

• E. F. Roberts

  2 shared

• David H. Kaye

  2 shared

• George E. Dix

  2 shared

• Seth Kotch

  2 shared

• H. Jefferson Powell

  2 shared

• Eleanor Swift

  2 shared

• Edward J. Imwinkelried

  University of California, Davis

  2 shared

Awards & honors

• Frank Porter Graham Award