CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

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Tuesday, July 29, 2014

"Trial Monday on Production of Missing Video From OKC Bombing"

From TalkLeft:

On Monday, a three-day trial is scheduled to begin in U.S.District Court in Salt Lake City on a lawsuit by lawyer Jesse Trentadue. He filed a request under the Freedom of Information Act (FOIA) seeking documents and videotapes from the bombing investigation — including one tape he believes shows two suspects exiting a Ryder truck parked in front of the Alfred P. Murrah Federal Building and the detonation of explosives in the vehicle.

July 29, 2014 | Permalink | Comments (0)

Arcila on Predictive Policing and Reasonable Suspicion

Arcila fabioFabio Arcila, Jr. (Touro College - Jacob D. Fuchsberg Law Center) has posted Nuance, Technology, and the Fourth Amendment: A Response to Predictive Policing and Reasonable Suspicion (63 Emory Law Joural Online 87 (2014)) on SSRN. Here is the abstract:

In an engaging critique, Professor Arcila finds that Professor Ferguson is correct in that predictive policing will likely be incorporated into Fourth Amendment law and that it will alter reasonable suspicion determinations. But Professor Arcila also argues that the potential incorporation of predictive policing reflects a larger deficiency in our Fourth Amendment jurisprudence and that it should not be adopted because it fails to adequately consider and respect a broader range of protected interests.

July 29, 2014 | Permalink | Comments (0)

Monday, July 28, 2014

Pasca on Romania's New Penal Code

Viorel Pasca (West University of Timisoara) has posted Romania's New Penal Code and the Saga of its Adoption (Journal of Eastern European Criminal Law issue 1/2014) on SSRN. Here is the abstract:

The decision to proceed to the drafting of a new Penal Code was not a mere manifestation of the political will, but equally represented a corollary of the economic and social evolution and also of the doctrine and case-law and was based on a series of shortcomings in the regulation of the 1968 Penal Code.

A very important role in the harmonization of the legislation with the constitutional provisions has been played by the Constitutional Court, both through its a priori and a posteriori judicial review, the latter taking the form of the settlement of the constitutional challenges raised before the courts.

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July 28, 2014 | Permalink | Comments (0)

Howe on Deselecting Biased Juries

Howe scottScott Howe (Chapman University, The Dale E. Fowler School of Law) has posted Deselecting Biased Juries (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:

Critics of peremptory-challenge systems commonly contend that they inevitably inflict inequality harm on many excused persons and should be abolished. Ironically, the Supreme Court fueled this argument with its decision in Batson v. Kentucky, 476 U.S. 79 (1986), by raising and endorsing the inequality claim sua sponte and then purporting to solve it with an approach that preserved peremptories. But the article shows that something other than inequality harm to excused persons is actually the central problem. The Court in the Batson cases only obliquely confronted it, because constitutional rulings cannot appropriately resolve it. That problem is the harm to disadvantaged litigants when their opponents use peremptories to secure a one-sided jury. The problem can arise often -- whenever a venire is slanted in favor of one of the parties. The advantaged litigant can use peremptories to seat a large group of favorable jurors regardless of how the disadvantaged litigant exercises its peremptories. However, there is a remedy. Peremptory systems reflect the idea that parties acting in their self-interests can help pursue group neutrality on a jury. Similarly, by conferring on litigants a right to stop peremptories at any time, states can enlist them to determine when opposing parties are using peremptories to promote group bias.

July 28, 2014 | Permalink | Comments (0)

Gilad on Child Victims of Crime

Gilad michalMichal Gilad (University of Pennsylvania Law School) has posted The Young and the Helpless: Re-Defining the Term 'Child Victim of Crime' on SSRN. Here is the abstract:

Children are the most highly victimized segments of our society. At present, the victimization of children is estimated to be one of the most costly public health and public safety problem is our society. 

Have you asked yourself what is done to resolve this dire situation and to protect our children? 

Despite the proliferation of literature and policy proposals pertinent to childhood victimization, thus far, no significant efforts have been made to design a coherent legal definition to the term ‘child victim of crime’ that is specifically geared towards the distinct developmental needs of this age group, and realistically reflects the unique effect of crime on children.The result of this lacuna is a colossal failure of our legal system to protect the most vulnerable and impressionable group, our children. 

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July 28, 2014 | Permalink | Comments (0)

Sunday, July 27, 2014

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 329 Katz Has Only One Step: The Irrelevance of Subjective Expectations 
Orin S. Kerr 
George Washington University - Law School 
Date posted to database: 13 Jun 2014 [2nd last week]
2 294 The Failure of Mitigation? 
Robert J. SmithSophie Cull and Zoe Robinson 
University of North Carolina School of Law, Independent and DePaul University College of Law 
Date posted to database: 8 Jun 2014 [5th last week]
3 240 Sales Suppression as a Service (SSaaS) & the Apple Store Solution 
Richard Thompson Ainsworth 
Boston University - School of Law 
Date posted to database: 6 Jun 2014 
4 231 The Brave New World of Cell-Site Simulators 
Heath Hardman 
Albany Law School 
Date posted to database: 24 May 2014 
5 128 When Do State Laws Determine ERISA Plan Benefit Rights? 
Albert Feuer 
Law Offices of Albert Feuer 
Date posted to database: 22 May 2014 [10th last week]
6 90 Retuning Gideon's Trumpet: Retelling the Story in the Context of Today's Criminal Justice Crisis 
Jonathan Rapping 
Atlanta's John Marshall Law School 
Date posted to database: 22 May 2014 [new to top ten]
7 90 Awareness Regarding Cyber Victimization Among Students of University of Sindh, Jamshoro 
Muhammad Abdullah AvaisAijaz Ali WassanHameeda Narejo andJameel Ahmed Khan 
University of Sindh - Department of Sociology, University of Sindh - Department of Sociology, University of Sindh - Department of Sociology and University of Sindh - Department of Sociology 
Date posted to database: 22 May 2014 [new to top ten]
8 80 Liberal but Not Stupid: Meeting the Promise of Downsizing Prisons 
Joan Petersilia and Francis T. Cullen 
Stanford University and University of Cincinnati 
Date posted to database: 24 Jun 2014 [new to top ten]
9 76 Authority, Ignorance, and the Guilty Mind 
Stephen P. Garvey 
Cornell Law School 
Date posted to database: 1 Jun 2014 [new to top ten]
10 75 Disqualifying Judges When Their Impartiality Might Reasonably Be Questioned: Moving Beyond a Failed Standard 
Ray McKoski 
The John Marshall Law School 
Date posted to database: 30 May 2014 [new to top ten]

July 27, 2014 | Permalink | Comments (0)

"NYT series on legalization of marijuana, still a Fourth Amendment issue" links to the New York Times series on legalization.

July 27, 2014 | Permalink | Comments (0)

Saturday, July 26, 2014

"Is Judge Kozinski recent opinion proof that "the death penalty is doomed"?"

Doug Berman has this post at Sentencing Law & Policy, excerpting an opinion piece from The New York Times.

July 26, 2014 | Permalink | Comments (0)

Friday, July 25, 2014

Tillipman on Gifts, Hospitality & the Government Contractor

Tillipman jessicaJessica Tillipman (The George Washington University Law School) has posted Gifts, Hospitality & the Government Contractor on SSRN. Here is the abstract:

The government procurement process demands the highest commitment to ethical and unbiased conduct. To ensure that the individuals involved in the procurement process adhere to these standards, government entities in nearly all jurisdictions around the world have enacted codes of conduct, ethical restrictions, and anti-corruption laws designed to protect the integrity of government and ensure that government officials act impartially and do not give preferential treatment to any private organization or individual. To further these goals, most jurisdictions have enacted restrictions on the gifts and hospitality that government officials may accept from individuals and organizations that sell goods and services to the government.

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July 25, 2014 | Permalink | Comments (0)

"President Barack Obama to issue executive order on drone privacy" links to and excerpts this piece from Politico.

July 25, 2014 | Permalink | Comments (0)

Bowden et al. on Cross-Examining Vulnerable Witnesses

Phoebe Bowden Terese Henning and David Plater (University of South Australia - School of Law , University of South Australia - School of Law and University of South Australia - School of Law) have posted Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation? (Melbourne Univeristy Law Review, Vol. 37, 2014) on SSRN. Here is the abstract:

Cross-examination is fundamental to the adversarial criminal trial. However, when children and witnesses with an intellectual disability are cross-examined, it can lead to unreliable evidence and further trauma to the victim. Various reforms in Australian jurisdictions, England and elsewhere have had only limited practical elect as they fail to address the underlying problems that arise from the adversarial system itself. While any changes must maintain a defendant’s vital right to a fair trial, the current criminal trial may allow defendants an illegitimate advantage. Fairness to the defendant, victim and society can and must be balanced. In order to reduce any illegitimate advantage, direct cross-examination should be removed. Instead, cross-examination should be conducted in advance of trial by a suitable third party and video-recorded. A similar process is used in Norway. A wholesale transformation into an inquisitorial system is not required for the benefits of non-adversarial examination to be achieved.

July 25, 2014 | Permalink | Comments (0)

Thursday, July 24, 2014

"De-policing New York"

From City Journal:

The biggest threat facing minority New Yorkers now is not “over-policing,” and certainly not brutal policing. The NYPD has one of the lowest rates of officer shootings and killings in the country; it is recognized internationally for its professionalism and training standards. Deaths such as Garner’s are an aberration, which the department does everything it can to avoid. The biggest threat facing minority New Yorkers today is de-policing. After years of ungrounded criticism from the press and advocates, after highly publicized litigation and the passage of ill-considered laws—such as the one making officers financially liable for alleged “racial profiling”—NYPD officers have radically scaled back their discretionary activity. Pedestrian stops have dropped 80 percent citywide and almost 100 percent in some areas. The department is grappling with how to induce officers to use their lawful authority again to stop crime before it happens. Eric Garner’s death was a heartbreaking tragedy, but if the unjustified backlash against misdemeanor enforcement takes root and finds a sympathetic audience in Mayor Bill De Blasio, the consequences for all New Yorkers will be even more dire.

July 24, 2014 | Permalink | Comments (0)

"At Least 3/4 Of Newark Pedestrian Police Stops Had No Constitutional Basis, Justice Department Finds"

From ThinkProgress:

Police had no apparent constitutional basis for at least three-quarters of pedestrian stops in Newark, New Jersey, a three-year U.S. Department of Justice review concluded this week. That finding was just the top line of a report that also found gross racial disparities in those stops, a pattern of excessive force, retaliation against suspects, and officer theft from suspects during stops.

“Our investigation uncovered troubling patterns in stops, arrests and use of force by the police in Newark,” said U.S. Attorney General Eric Holder.

July 24, 2014 | Permalink | Comments (0)

"When may a felon, who is generally barred from possessing a gun, get it to break up a fight?"

Eugene Volokh at The Volokh Conspiracy excerpts a recent Eighth Circuit opinion discussing federal law on justifiable law violations and providing an interesting glimpse into what judges view as reasonable alternatives in a brawl.

July 24, 2014 | Permalink | Comments (0)

Pardo & Patterson on Morse, Mind, and Mental Causation

Michael S. Pardo and Dennis Patterson (University of Alabama School of Law and European University Institute) have posted Morse, Mind, and Mental Causation (Criminal Law and Philosophy, Forthcoming) on SSRN. Here is the abstract:

Stephen Morse's illuminating scholarship on law and neuroscience relies on a "folk psychological" account of human behavior in order to defend the law's foundations for ascribing legal responsibility. The heart of Morse's account is the notion of "mental state causation," in which mental states (e.g., beliefs, desires, and intentions) cause behavior. Morse argues that causation of this sort is necessary to support legal responsibility. We challenge this claim. First, we discuss problems with the conception of mental causation on which Morse appears to rely. Second, we present an alternative account to explain the link between mental states, reasons, and actions (the "rational-teleological" account). We argue that the alternative account avoids the conceptual problems that arise for Morse's conception of mental causation and that it also undergirds ascriptions of legal responsibility. If the alternative succeeds, then Morse's conception of "mental state causation" is not necessary to support legal responsibility.

July 24, 2014 | Permalink | Comments (0)

"Prosecutors Are Reading Emails From Inmates to Lawyers"

From The New York Times:

The issue has spurred court battles over whether inmates have a right to confidential email communications with their lawyers — a question on which federal judges have been divided.

. . .

All defendants using the federal prison email system, Trulincs, have to read and accept a notice that communications are monitored, prosecutors in Brooklyn pointed out. Prosecutors once had a “filter team” to set aside defendants’ emails to and from lawyers, but budget cuts no longer allow for that, they said.

While prosecutors say there are other ways for defense lawyers to communicate with clients, defense lawyers say those are absurdly inefficient.

July 24, 2014 | Permalink | Comments (0)

Wednesday, July 23, 2014

Levmore & Porat on Credible Threats

Saul Levmore and Ariel Porat (University of Chicago Law School and Tel Aviv University) have posted Credible Threats on SSRN. Here is the abstract:

“Your money or your life” is a classic threat, and it is one that law is prepared to penalize. The sanction may occasionally do more harm than good, but for the most part the law’s treatment of such serious threats is sensible. In contrast, “If you do not lower the price of that automobile I hope to buy, I will never return to this dealership” is a threat that law ignores. The buyer is free to return the next day and reveal that the threat was a bluff. In both cases the threat is a more valuable signal if the listener can weed out bluffs. This Article suggests that there is a good case to be made for legal intervention on behalf of some commercial threats, in order to enhance their credibility and signaling value. Third-party effects do, however, complicate the analysis. We suggest that the best remedy in support of valuable threats is to put the nonthreatening party at risk in the event that it enters into an arrangement that the threat-maker previously forswore.

The analysis develops the ingredients for credibility in commercial, criminal, and international contexts, including the cost of executing a threat, the role of repeat play, and the calculus of what we call secondary credibility – the likelihood that a threat will be carried out even though the target complies and the danger that capitulation will bring about another threat.

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July 23, 2014 | Permalink | Comments (0)

Kinports on Probable Cause

Kinports kitKit Kinports (Penn State Law) has posted Probable Cause and Reasonable Suspicion: Totality Tests or Rigid Rules? (University of Pennsylvania Law Review Online, Forthcoming) on SSRN. Here is the abstract:

This piece argues that the Supreme Court's April 2014 decision in Navarette v. Calfornia, like last Term's opinion in Florida v. Harris, deviates from longstanding Supreme Court precedent treating probable cause and reasonable suspicion as totality-of-the-circumstances tests. Instead, these two recent rulings essentially rely on rigid rules to define probable cause and reasonable suspicion. The article criticizes the Court for selectively endorsing bright-line tests that favor the prosecution, and argues that both decisions generate rules that oversimplify and therefore tend to be overinclusive.

July 23, 2014 | Permalink | Comments (0)

Lavin on Japanese Criminal Justice

Levin_MarkMark Levin (University of Hawaii at Manoa - William S. Richardson School of Law) has posted Considering Japanese Criminal Justice from an Original Position (「無知のヴェール」から日本の刑事司法を考える) (世界 SEKAI, no. 857, pp. 112-121, June 2014) on SSRN. Here is the abstract:

The criminal justice systems of the United States and Japan are both severely flawed. While some have worked hard to present these deep-seated problems to the public, the overall situation in either country is of stalled reform initiatives and ongoing injustices. 

Race underlies a difference in how reform discussions proceed in the two nations. It is at the core of what ails the system in the U.S., as authors such as Professor Michelle Alexander have powerfully demonstrated. On the other hand, Japan’s would-be reformers operate in an atmosphere of widespread race obliviousness despite there being meaningful racial dynamics at play in Japan today. 

This article, published in a leading Japanese public policy journal, offers that differences in public awareness of race in the two nations are salient.

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July 23, 2014 | Permalink | Comments (0)

Tuesday, July 22, 2014

Shimick on Pretextual Prosecution and "Breaking Bad"

Scott Shimick (SUNY at Geneseo) has posted Heisenberg's Uncertainty: An Analysis of Criminal Tax Pretextual Prosecutions in the Context of Breaking Bad's Notorious Anti-Hero (Tulsa Law Review, Forthcoming) on SSRN. Here is the abstract:

Commentators have roundly criticized pretextual prosecutions, such as prosecuting Al Capone for tax evasion rather than bootlegging, arguing that the government should minimize the use of pretextual prosecutions. However, pretextual prosecutions serve as a valuable tool for law enforcement.

In Breaking Bad, Walter White becomes a violent criminal who produces and sells narcotics. Throughout the series, he is very careful to conceal or destroy any evidence linking him to the violence and drug trafficking. However, as the bootleggers and gangsters of the Prohibition-era learned, the government holds the trump card, criminal tax prosecution. By charging drug traffickers with criminal tax fraud, the government can imprison dangerous criminals without having to prove beyond a reasonable doubt that the drug traffickers actually produced and sold narcotics. This article examines criminal tax fraud statutes and methods of proof, analyzing these statutes and methods in the context of whether Walter White should have fled from prosecution. Through this analysis, this article demonstrates the value of pretextual criminal tax fraud prosecutions.

July 22, 2014 | Permalink | Comments (1)