CrimProf Blog

Mirabella on Italian Criminal Procedure and the Amanda Knox Trial

Julia Grace Mirabella has posted Scales of Justice: Assessing Italian Criminal Procedure Through the Amanda Knox Trial (Boston University International Law Journal, Vol. 30, No. 1, 2012) on SSRN. Here is the abstract:

The Italian criminal procedure code of 1989 reformed Italy’s criminal procedure system from an inquisitorial model into a hybrid scheme that draws inspiration from the United States’ adversarial system. However, despite including adversarial processes into its criminal procedure code, Italy’s inquisitorial foundations have continued to exert considerable influence over trial procedures. In the wake of the Amanda Knox case Italian criminal procedure has increasingly come under fire.

The purpose of this note is to explore the changes made to the Italian criminal procedure code, to assess the current state of Italian criminal proceedings and to consider whether proper comparative methodologies have been used in assessing how Italian criminal procedure relates to traditional adversarial systems.

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Rothstein & Coleman on Bullcoming and Confrontation

Paul F. Rothstein (pictured) and Ronald J. Coleman (Georgetown University Law Center and Georgetown University Law Center) have posted Grabbing the Bullcoming by the Horns: How the Supreme Court Could Have Used Bullcoming v. New Mexico to Clarify Confrontation Clause Requirements for CSI-Type Reports (Nebraska Law Review, Vol. 90, p. 502, 2011) on SSRN. Here is the abstract:

In the pilot episode of the hit television show CSI, Grissom says to Warrick: "Concentrate on what cannot lie. The evidence." Although Grissom is a beloved figure in U.S. popular culture, the U.S. is currently unwilling to accept that evidence never lies. In stark contrast to Grissom's statement, the common law has a long history of allowing criminal defendants to cross-examine and question witnesses providing evidence against them. The right to confront an accusatory witness is reflected in the historical legal documents of Great Britain, in Shakespearean writing, and even in the Bible. In the United States, the right to confront was enshrined in the Sixth Amendment to the Federal Constitution which provides: "In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him..." The right to confront applies at both the federal level and at the state level (through the Fourteenth Amendment).

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Luppi & Parisi on Jury Size and Hung Juries

Barbara Luppi and Francesco Parisi (Università degli studi di Modena e Reggio Emilia (UNIMORE) - Faculty of Business and Economics and University of Minnesota - Law School) have posted Jury Size and the Hung-Jury Paradox on SSRN. Here is the abstract:

In the United States, the 1970 Supreme Court decision Williams v. Florida 399 U.S. 78 (1970) reduced from twelve to six the minimum number of jurors required under the Sixth and Fourteenth Amendments. In the hope of improving the legal process with faster deliberation and fewer mistrials, eleven states have used juries of less than twelve in felony cases. This has given origin to an unprecedented natural experiment on jury decision-making. Contrary to the predictions of probability theory, the reduction in jury size has not brought the expected reduction in the number of mistrials. In this paper we provide a possible explanation for this fact. We formulate some propositions considering the case of jury deliberation in the presence of informational cascades. These results have implications not only for juries, but also for democratic theory.

Tusikov on Measuring Organised Crime-Related Harms

Natasha Tusikov (Australian National University) has posted Measuring Organised Crime-Related Harms: Exploring Five Policing Methods (Crime Law and Social Change, November 2011) on SSRN. Here is the abstract:

Many law enforcement agencies around the world have adapted risk assessment methodology to analyse organised crime. These assessments, which are intended to provide law enforcement management with rigourous analysis to enable rational and objective decision-making processes, are an integral part of intelligence-led policing. Despite the prevalence of these assessments, as the assessments and their methodologies are often tightly restricted within the law enforcement community, it is often unclear how law enforcement defines, analyses and makes decisions about organised crime. While the use of risk assessment methodology to analyse organised crime in policing is generally under-evaluated, critics point to serious methodological weaknesses. Another aspect that is less explored in the scholarly literature is how law enforcement conceptualises and measures the impact or ‘harm’ from organised crime and uses this analysis to inform priority-setting processes. This article explores how law enforcement assess organised crime-related harm by examining five policing methods — one each from Australia and the Netherlands and three from the United Kingdom. The article finds that the methods have significant shortcomings: the main concepts are generally ill-defined and the operationalisation of these concepts is problematic. More importantly, the problems evident in the harm methods raise several critical questions, specifically whether measuring organised crime-related harms is empirically feasible and, if so, can be undertaken in a manner that meaningfully informs law enforcement’s decision-making and limits undue political interference.

The New "Virginia Journal of Criminal Law" (Kolber)

The UVA School of Law has a new journal devoted to criminal law.  Blog readers may want to encourage their libraries to get a subscription if they don't already have one.  Some news via VJCL editor:

The inaugural issue of the Virginia Journal of Criminal Law (“VJCL”) features an article written by Professor Dan Markel, the D’Alemberte Professor of Law at Florida State University College of Law and a current Scholar-in-Residence at NYU Law’s Center on the Administration of Criminal Law.  The article is entitled “Retributive Justice and the Demands of Democratic Citizenship.”  For more info about subscription info, please contact Daniel Gude, Managing Editor of the VJCL, at dmg3ae@virginia.edu. 

-AJK

McCary and Sanga on Youth Offenders and the Deterrence Effect of Prison

Justin McCrary and Sarath Sanga (University of California, Berkeley and Yale Law School) has posted Youth Offenders and the Deterrence Effect of Prison on SSRN.  Here is the abstract: 

In this paper, we present evidence from six data sets on the participation of youth in crime near the age of criminal majority. The evidence suggests smooth behavior through the transition to adulthood, despite substantial changes in punitiveness. This is consistent with small deterrence effects of long prisons sentences for youthful offenders.

Salkin and Kansler on Ensuring the Public Trust at the Municipal Level

Patricia Salkin and Zachary Kansler (Albany Law School and Albany Law School) have posted Ensuring the Public Trust at the Municipal Level: Inspectors General Enter the Mix (Albany Law Review, Vol. 75, 2012) on SSRN.  Here is the abstract: 

Although federal, state and local government officials are subject to applicable codes of ethical conduct and are under the jurisdiction of ethics enforcement agencies created pursuant to these laws, ethics oversight agencies are limited in the breadth and scope of covered activities. With an increase in reported allegations of corruption, particularly at the local government level, this article explores the addition of the audit function, through inspectors general, to ensure greater transparency and accountability of public officials. 

The article begins with a very brief historical overview of the emergence of the inspector general concept in Europe and its adoption in the United States at the federal and state levels. The article continues with a focused examination of the reasons behind the creation of inspectors general at the municipal level and the various models or forms that have emerged in the establishment, jurisdiction, the operation of these offices and budget issues. 

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Sidhu on Religious Freedom and Inmate Grooming Standards

Dawinder S. Sidhu (University of New Mexico School of Law) has posted Religious Freedom and Inmate Grooming Standards (University of Miami Law Review, Forthcoming) on SSRN.  Here is the abstract: 

This Article explores the Eleventh Circuit's repeated rejection of challenges, under the First Amendment's Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), to "restrictive" inmate grooming policies (that require inmates to shave or cut their hair) in suits brought by plaintiffs who subscribe to a religion that mandates the growing of facial hair or long hair. It suggests, based on an analysis of case law, states' policies, and recent legal developments, that the Eleventh Circuit's approach in upholding these policies is no longer sustainable. 

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Lyon on News Media and Criminal Defense

Andrea D. Lyon (DePaul University - College of Law) has posted Criminal Coverage: News Media, Legal Commentary, and the Crucible of the Presumption of Innocence (Reynolds Courts & Media Law Journal, Vol. 1, No. 4, p. 427, Fall 2011) on SSRN.  Here is the abstract: 

The criminal defense bar has always had a complex relationship with the media. There are competing parts of the Constitution to consider, namely, the First and the Sixth Amendments. Generally speaking, publicity hurts a criminal defendant. There are already so many presumptions against anyone charged — particularly anyone charged with a violent offense. That said, without the media, abuses of power would never come to light. For example, even though it was a long time coming, former police commander Jon Burge would never have gone to jail for the torture of those he arrested without the intervention of the press and the assiduity of a few lawyers and reporters. This article article identifies practical intrusions of these tensions in today’s world — the obtrusiveness of the twenty-four hour news cycle, pervasive legal commentators (I use the word “legal” advisedly) and the ethical implications of treating crime news as entertainment.

First reactions to GPS monitoring case

ScotusBlog collects the commentary here. At The Volokh Conspiracy, Orin Kerr raises some interesting questions about where the Court will go from here.

Opinion upholding qualified immunity for warrantless home entry

The Court's per curiam opinion in Ryburn v. Huff faults the Ninth Circuit for deviating from the district court's conclusion that an objectively reasonable officer would believe the entry was justified by the fear of imminent violence in case involving allegations that student was planning to shoot up his school.

Opinion on Sex Offender Registration Act

The case is Reynolds v. United States. Justice Breyer's opinion for the Court finds essential the validity of the Attorney General's specification of the Act's applicability to pre-Act offenders and remands for consideration of that issue. Justice Scalia, joined by Justice Ginsburg, dissented.

Unanimous Court reins in GPS monitoring for different reasons

The case is United States v. Jones. Justice Scalia's opinion for the Court views Katz as supplementing rather than replacing the earlier regulation of physical trespasses by government and relies on the trespass in placing a GPS device on a vehicle to conclude that a search occurred. Justice Alito's opinion concurring in the judgment, joined by Justices Ginsburg, Breyer, and Kagan, objects to the revival of the trespass focus but concludes a search occurred using the Katz test. Justice Sotomayor joined Justice Scalia's opinion but also concurred to agree with much of the Alito opinion.

Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	369	Racial Critiques of Mass Incarceration: Beyond the New Jim Crow James Forman, Yale University - Law School, Date posted to database: November 29, 2011
2	258	How Law Protects Dignity Jeremy Waldron, New York University (NYU) - School of Law, Date posted to database: December 17, 2011
3	204	Turning the Corner on Mass Incarceration? David Cole, Georgetown University Law Center, Date posted to database: December 15, 2011 [4th last week]
4	197	Legal N-Grams? A Simple Approach to Track the ‘Evolution’ of Legal Language Daniel Martin Katz, Michael James Bommarito, Michael James Bommarito, Julie Seaman, Adam Candeub, Eugene Agichtein, Michigan State University - College of Law, University of Michigan, Department of Financial Engineering, University of Michigan, Department of Political Science, Emory University School of Law, Michigan State University College of Law, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: December 16, 2011 [3rd last week]
5	172	Neuroscience, Normativity, and Retributivism Michael S. Pardo, Dennis Patterson, University of Alabama School of Law, European University Institute, Date posted to database: December 6, 2011
6	147	Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal Courts Jenny Roberts, American University, Washington College of Law, Date posted to database: November 23, 2011
7	113	Petty Offenses, Drastic Consequences: Toward a Sixth Amendment Right to Counsel for Noncitizen Defendants Facing Deportation Alice J. Clapman, University of Baltimore School of Law, Date posted to database: November 21, 2011 [8th last week]
8	79	Circumvention Tourism I. Glenn Cohen, Harvard Law School, Date posted to database: December 1, 2011 [new to top ten]
9	72	The Benefits of a Right to Silence for the Innocent Shmuel Leshem, University of Southern California - Law School, Date posted to database: September 30, 2011 [new to top ten]
10	67	Potentially Perverse Effects of Corporate Civil Liability Samuel W. Buell, Duke University School of Law, Date posted to database: December 8, 2011 [new to top ten]

Brickey on Corporate Criminal Liability

Kathleen F. Brickey (Washington University in Saint Louis - School of Law) has posted Perspectives on Corporate Criminal Liability on SSRN. Here is the abstract:

The principle that corporations can be held criminally responsible for crimes committed on their behalf has been well established in Anglo-American law for more than a century. After exploring the historical and theoretical underpinnings of this phenomenon together with the deterrent and retributive rationales for imposing criminal liability on corporations, this article examines Justice Department policies regarding the prosecution and punishment of corporate crime and how those policies are implemented in practice.

Tuerkheimer on Breakups and Domestic Violence

Deborah Tuerkheimer (DePaul University - College of Law) has posted The Legal Meaning of Breakups: A Theory of Imputed Consent on SSRN. Here is the abstract:

The law’s conceptualization of violence within and without relationship is unjustifiably bifurcated. Before the breakup, abuse is defined as episodic and purely physical, leaving ongoing patterns of control untouched. This transactional approach to crime abruptly shifts at the moment of separation. Once relationships are deemed over, abuse is transformed to stalking and an entire course of conduct is brought within the law’s reach. The law’s discrepant treatment of pre- and post-separation violence is particularly striking when juxtaposed with the realities of violence between intimates. The latest social science research exposes the domestic violence/stalking distinction as artificial, and the moment-in-time-breakup as fictional. The de facto separation requirement that I identify is therefore unsupported on empirical grounds. Instead, the legal meaning of breakups may best be explained by a tacit imputation of consent to women who remain in abusive relationships. On analysis, this attribution cannot be reconciled with the normative requirements of consent. Imposing on women a legal obligation to leave their abusers in order for injury to be recognized is therefore troubling. The Article defends the claim that relationship status should no longer construct crime.

Henderson on Inevitable Discovery and Computer Searches and Seizures

Stephen E. Henderson (University of Oklahoma College of Law) has posted What Alex Kozinski and the Investigation of Earl Bradley Teach About Searching and Seizing Computers and the Dangers of Inevitable Discovery (Widener Law Review, Forthcoming) on SSRN. Here is the abstract:

This paper tells two stories. One concerns the investigation of a Delaware physician named Earl C. Bradley that resulted in a conviction and sentence of fourteen consecutive life terms for the sexual abuse of children. The other concerns the computer problems – both judicial and extra-judicial – of Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. Were I not asked to speak on computer searches in relation to the Bradley prosecution, I would likely never have combined them. Yet they share lessons about the practicalities of computers and their search that are worth telling.

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Williams on a Simple Threshold Model of Theft

Geoffrey Williams (Rutgers, The State University of New Jersey) has posted A Simple Threshold Model of Theft on SSRN. Here is the abstract:

I propose a simple threshold strategy model of theft in which all individuals draw theft opportunities from the same random distribution, while individuals di ffer in terms of their actual or perceived costs of theft. I estimate the model using data from the NLSY 1997 Cohort for the years 1997-2003 with a number of specifi cations, including a bivariate structural model. Across all estimations covariates that measure or are closely correlated with time preferences and impatience are strong predictors of theft while measures such as opportunity cost show little or no explanatory power. The assumption of a common distribution of opportunities is not contradicted by the data. Structural and count estimations support the conclusion that unobserved heterogeneity across individuals plays a substantial role. I uncover a previously unnoticed pattern: theft is very spiky in that the median thief is active for only a brief period of less than a year in adolescence or early adulthood. Theft thus appears to be substantially a phenomenon of high impatience individuals entering a temporary period of intensi fied risk-taking in adolescence. Finally, and in contrast to the predictions of the literature, the two count data models favored in cases of unobserved heterogeneity perform very differently, suggesting that using count models in tandem with binary models o ffers more insight than using count models in isolation.

Tusikov on Models of Organized Crime

Natasha Tusikov (Australian National University) has posted The Godfather is Dead: A Hybrid Model of Organized Crime (APREHENDIENDO AL DELINCUENTE: CRIMEN Y MEDIOS EN AMÉRICA DEL NORTE, p. 143 Graciela Martinez-Zalace, Susana Vargas Cervantes, and Will Straw, eds., Media at McGill, 2010) on SSRN. Here is the abstract:

A decades-long debate has raged globally among academics about how to define and classify organized crime, its activities, members, and organizing structures. This debate has inspired such interest because organized crime is an intangible concept with a wide range of activities and criminal capabilities, a diversity of participants, and different kinds of organizing structures. Law enforcement, however, has been largely absent from this discussion and is generally reluctant to participate in the construction of conceptual frameworks intended to strengthen our understanding of organized crime. Twenty two years ago, Grant Wardlaw (1989: 10) noted that conceptual frameworks are rudimentary in organized crime research. While our critical understanding of organized crime has evolved significantly, limited progress has been made in the development of formal models of organized crime and Wardlaw’s observation remains sadly current.

This article seeks to contribute to the literature of conceptual models of organized crime through a critique of past theories and the introduction of a hybrid model. The first part critiques the pluralist-ethnic and bureaucratic-hierarchical models that have traditionally shaped law enforcement’s conception of organized crime. The second part outlines the network, market, and enterprise models and then offers a new hybrid conceptual model. It then explores how this hybrid model can form a theoretical framework for a risk assessment methodology on organized crime.

Caianiello on the italian Public Prosecutor

Michele Caianiello (University of Bologna - Department of Juridical Sciences) has posted The Italian Public Prosecutor: An Inquisitorial Figure in Adversarial Proceedings? (TRANSNATIONAL PERSPECTIVES ON PROSECUTORIAL POWER, E. Luna, M. Wade, eds., Oxford University Press, 2011) on SSRN. Here is the abstract:

The Italian prosecutor embodies a peculiar combination of official duties and actual practices: he is formally a member of the judiciary independent of the political branches; he is charged with impartial investigations of crime but is likely only to gather damning evidence; he serves as a party in the presentation of evidence at trial yet is empowered to act on behalf of the defendant after trial; and ultimately, he is bound to impose the court’s sentence. A prominent scholar once described the Italian Prosecutor using the oxymoronic term “impartial party.” Today, the prosecutor has become an inquisitorial figure in adversarial proceedings, the result of a long-term experiment in criminal procedure reform. In many ways, he remains a work in progress. This chapter will explore the background and function of the Italian prosecutor, noting along the way the ongoing issues of debate that will shape the future of the Public Prosecution Service.