CrimProf Blog

Merry Christmas from CrimProf Blog!

Here's a trivia question you can use to stump friends and family during the holiday season: In what movie was the song first sung that became the best-selling single record of all time? Answer after the jump.

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Utah Expands Admissibility of Expert Testimony on Eyewitness Identifications

The Salt Lake Tribune covers the decision of the Utah Supreme Court here:

[A] judge refused to allow the expert, David Dodd, to testify and instead warned jurors about the dangers of eyewitness testimony with a jury instruction, which had been the common practice of courts for two decades, the opinion said.

Clopten appealed, and the Utah Court of Appeals affirmed his conviction. But the justices on Friday said the circumstances of Clopten's case -- mainly prosecutors' heavy reliance on eyewitness testimony -- are "exactly those under which the testimony of an eyewitness expert is most helpful to a jury."

. . .

Chief Justice Christine Durham wrote for the court: "We are not mandating the admission of eyewitness expert testimony in every case. We expect, however, that in cases involving eyewitness identification of strangers or near-strangers, trial courts will routinely admit expert testimony."

Associate Chief Justice Matthew Durrant and Michael Wilkins dissented in part, saying the high court should not remove the discretion of trial judges and create a presumption in favor of eyewitness expert testimony.

The opinion is here. Hat tip: How Appealing.

"Maine's high court finds part of sex offender registration law unconstitutional"

Doug Berman at Sentencing Law and Policy has the story. The opinion in the case is available here.

Austin on Women at the Border

Regina Austin  (University of Pennsylvania Law School) has posted Women’s Unequal Citizenship at the Border: Lessons from Three Nonfiction Films about the Women of Juárez (GENDER EQUALITY: DIMENSIONS OF WOMEN'S EQUAL CITIZENSHIP, Linda C. McClain, Johanna L. Grossman, eds., Cambridge University Press, 2009) on SSRN. Here is the abstract:

There is no better illustration of the impact of borders on women’s equal citizenship than the three documentaries reviewed in this essay. All three deal with the femicides that befell the young women of Ciudad Juárez, Mexico between 1993 and 2005. Juarez is just across the border from El Paso, Texas. Performing the Border (1999) stimulates the viewer’s imagination regarding the ephemeral nature of borders and their impact on the citizenship of women who live at the intersection of local, regional, national and international legal regimes. Señorita Extraviada (2001) is an intimate portrait of the victims which illustrates why the private grief of their survivors should have been a cause for public national mourning. Finally, Battle of the Crosses (2005), the work of social scientists, offers a panoramic description of the complicated social terrain on which the Juárez femicides occurred and their meaning was fought over. Together, the films suggest how borders are constructed and “performed” through law and law enforcement in ways that jeopardize women’s rights as citizens. The films also show how women in turn challenge law and law enforcement to transcend the limitations of social, political, and economic borders and assert their right to equal citizenship.

Confronted with state intransigence in the face of the murders of dozens of young females, the women of Juárez used their traditional female roles as a springboard to political engagement. Overcoming the debilitating effect of class and ethnic marginality, patriarchal mass violence, and governmental corruption and lack of accountability, the women turned back the state’s effort to belittle the murders as private matters and the victims as deserving of their fate. The documentaries together provide a vivid case study that proves the importance of understanding the synthetic quality of borders and their relationship to women’s equal citizenship in a globalizing world where borders can pop up anywhere and at anytime.

Turner on Ethics in International Criminal Defense

Jenia Iontcheva Turner  (Southern Methodist University (SMU) - Dedman School of Law) has posted Legal Ethics in International Criminal Defense (Chicago Journal of International Law, Winter 2010) on SSRN. Here is the abstract:

This paper examines the new and complex dilemmas facing defense attorneys who represent clients before international criminal courts. It argues that the unique features and goals of international criminal trials demand a distinct approach to resolving some of these ethical dilemmas. In particular, the goals of international trials are broader and often more political than those of ordinary domestic trials, and the applicable procedures are a unique hybrid of the inquisitorial and adversarial traditions. Moreover, some of the justifications for aggressive defense at the domestic level - such as discouraging disengaged advocacy and protesting overly harsh punishments - are less applicable internationally.

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"Polanski exit strategy suggested by court"

The L.A. Times story is here:

A state appellate court Monday rejected Roman Polanski's bid to have his 1977 child-sex prosecution dismissed but outlined a way that could end the long-running case without Polanski serving more time behind bars or returning to the American justice system he fled three decades ago.

In a 3-0 ruling, the 2nd District Court of Appeal suggested that Polanski ask to be sentenced in absentia for the statutory rape he admitted committing 32 years ago.

According to the three-justice panel, the sentencing hearing held in his absence would provide a forum for a Los Angeles County judge to evaluate Polanski's allegations of prosecutorial and judicial misconduct in the original handling of the case.

"Are federal prosecutors acting worse or are judges just starting to notice?"

Doug Berman at Sentencing Law and Policy asks this interesting question in response to a couple of recent incidents he cites, which follow the better-known Broadcom dismissal.

"The Elephant in the Crime Stats Living Room"

Kent Scheidegger at Crime and Consequences thinks that recent coverage of declines in crime rates leaves an important factor out:

Year-to-year fluctuations don't tell us much. The long-term trends are that violent crime went way up in the 60s, 70s, and 80s, dropped sharply in the 90s and generally continued dropping at a slower rate in the decade now ending (the 00s?). Demographics are part of that, as Fox says, but the fact that we went soft on crime in the 60s and 70s and then toughened up in the late 80s is also a factor.

But we mustn't mention that, you see, because so many people are so heavily invested in telling us that it would be "smart on crime" to repeat the mistakes of the 60s.

"FBI Report: Crime, Murder Rate Dropped in First Half of 2009"

The ABC News website has the story here.

Crime fell 4.4 percent nationwide in the first half of 2009 with the murder rate dropping a startling 10 percent, according to statistics released Monday by the FBI. The decline in murders is one of the more significant one-time decreases in recent memory, according to some criminologists.

Crime rates have been dropping since 2007, following a run up in violent crime during the middle part of the decade. FBI figures for 2005 showed that violent crime had increased 2.5 percent overall, one of the largest percentage increases in 15 years. Overall crime in the United States increased 3.7 percent in 2006.

"Court Rejects Polanski Bid to Dismiss Case"

The Wall Street Journal has the article here:

Attorneys for the fugitive director argued earlier this month that misconduct in the case was grounds for dismissal of a charge of having unlawful sex with a minor. They also contended Mr. Polanski didn't need to be present to argue for dismissal.

The court disagreed on both issues.

"Repeat Offenses in Texas Raise Questions Over Release of Mentally Ill Juveniles"

The A.P. story is here.

Mosteller on Adversarial and Inquisitorial Systems and the Protection of the Innocent

Robert P. Mosteller  (University of North Carolina at Chapel Hill - School of Law) has posted Failures of the American Adversarial System to Protect the Innocent and Conceptual Advantages in the Inquisitorial Design for Investigative Fairness (Symposium on the Future of Adversarial Systems, Chapel Hill, NC, April 6, 2010) on SSRN. Here is the abstract:

The relative advantages and disadvantages of the adversarial system, as practiced in the United States, and modern European inquisitorial systems are often examined. In this Article, I continue that examination in the context of a new emphasis placed on the fair treatment of the innocent defendants, highlighted by the numerous DNA exonerations of defendants, many who faced the death penalty, unjustly convicted by the American adversarial system. I examine two significant failures of the American adversarial system and note a new basis to find merit in the inquisitorial design of the investigative process.

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Keller on Prior Convictions in Illegal Re-Entry Cases

Doug Keller has posted Why the Prior Conviction Sentencing Enhancements in Illegal Re-Entry Cases are Unjust and Unjustified (and Unreasonable Too) on SSRN. Here is the abstract:

This article discusses an important sentencing issue that affects thousands of lives each year that has nevertheless received little scholarly attention: the harsh prior-conviction sentencing enhancements defendants can receive in illegal re-entry cases - and only in illegal re-entry cases. The Sentencing Commission created and then sculpted the enhancements through a perfunctory process that radically altered illegal re-entry sentencing, shifting the focus from the defendant’s current offense to the status of his worst prior conviction. Depending on the nature of the prior conviction, a defendant can see his base offense level of 8 swell by 4, 8, 12, or 16 levels. In concrete terms, that means a defendant can see his sentence increase by 1 to 8 years - costing taxpayers up to $200,000 - because of a single prior conviction that could have occurred years or even decades ago.

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Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	308	The Emerging Criminal War on Sex Offenders Corey Rayburn Yung, The John Marshall Law School, Date posted to database: August 18, 2009
2	307	The Increased Level of EU Antitrust Fines, Judicial Review, and the European Convention on Human Rights Wouter P. J. Wils, European Commission Legal Service, Date posted to database: October 24, 2009
3	167	Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009 Mary Ellen O'Connell, Notre Dame Law School , Date posted to database: November 6, 2009 [7th last week]
4	162	Amicus Brief in Mcdonald v. Chicago: On Behalf of the International Law Enforcement Educators and Trainers Association, et al David B. Kopel, Independence Institute, Date posted to database: November 22, 2009
5	156	The Experiential Future of the Law Adam J. Kolber, University of San Diego School of Law, Date posted to database: October 13, 2009 [6th last week]
6	122	White Collar Innocence: Irrelevant in the High Stakes Risk Game Ellen S. Podgor, Stetson University College of Law, Date posted to database: October 16, 2009 [8th last week]
7	101	A Certain Uncertainty; an Assessment of Court Decisions for Tackling Corruptions in Indonesia 2001‐2008 Rimawan Pradiptyo, Universitas Gadjah Mada, Date posted to database: September 30, 2009 [9th last week]
8	97	Two Ways to Think About the Punishment of Corporations Albert W. Alschuler, Northwestern University - School of Law, Date posted to database: October 22, 2009 [10th last week]
9	87	Mapp v. Ohio’s Unsung Hero: Suppression Hearings as Morality Play Scott E. Sundby, Washington and Lee University - School of Law, Date posted to database: October 13, 2009 [new to top ten]
10	86	Why Care About Mass Incarceration? James Forman, Georgetown University Law Center, Date posted to database: October 16, 2009 [new to top ten]

"Treatment vs. incarceration: U.S. officials debate handling of drug offenses"

The Washington Post story is here.

"California's death row grows as death sentences decline nationwide"

The L.A. Times story is here.

"A California Court Debates the Good Faith Exception to the Exclusionary Rule post-Gant"

Lauren Altdoerffer has a post at Crime and Consequences, commenting on a California appellate court's decision in People v. Branner

that the exclusionary rule did not prevent the use of evidence obtained by an officer relying on a rule of the U.S. Supreme Court even when the Court later changed its mind about the rule.  According to the majority, "the guilty should not go free when the constable did precisely what the U.S. Supreme Court told him he could do, but the Court later decides it was the one who blundered." 

. . .

The court's debate presents some interesting questions on the deterrent purpose of the exclusionary rule and whether the Branner should benefit from Gant's retroactive effect.

The opinion is here.

Yarussi & Smith on Sexual Violence in Custody

Jaime M. Yarussi and Brenda V. Smith (pictured) (both from American University Washington College of Law) have posted Legal Responses to Sexual Violence in Custody: State Criminal Laws Prohibiting Staff Sexual Abuse of Individuals under Custodial Supervision on SSRN. Here is the abstract:

This publication is part of a larger scholarly project and one in a series that aims to create a “legal toolkit” for addressing sexual violence in custody. This publication begins with a brief discussion of staff sexual misconduct, and then examines a variety of definitions of staff sexual misconduct as defined by federal law. Next, the publication explores, in detail, sexual misconduct as defined by state criminal laws in the United States, provides examples of current state criminal laws on staff sexual misconduct and discusses the legal implications of these statutes. Finally, this publication concludes by reviewing the policy issues that stakeholders and policymakers should consider when evaluating a state criminal law on staff sexual misconduct, and provides recommendations for strengthening state laws to enhance their effectiveness.

Schehr on Law School Pedagogy

Robert Carl Schehr (Northern Arizona-Criminology and Criminal Justice) has posted 'The Lord Speaks Through Me': Moving Beyond Conventional Law School Pedagogy and the Reasons for Doing So (International Journal of Clinical Legal Education, pp. 9-47, July 2009) on SSRN. Here is the abstract:

Maintenance of status quo law school curricular design and delivery, along with the continued marginalization of live client clinic programs, and the discordant objectives of law schools as compared to the expectations of Bar passage, serve to stifle the role of juridic practitioners in the service of justice. Decades of careful scholarship regarding the problems associated with the quality of legal education have repeatedly called for curricular revisions that should enhance the knowledge and skill base of graduates, develop their level of preparedness to actually serve in the profession, and demonstrate care for students. And while there has been a commitment on behalf of law schools to establish experiential educational opportunities through participation in live client clinics, far too often these clinics appear as appendages to the core curriculum and are marginalized as a result. This essay has two objectives - to address the serious and well-known shortcomings associated with law school pedagogy, and to stimulate consideration of alternate pedagogical methods that draw upon student development theory to enhance what education scholars know about cognition.

(Another) Cautionary Note on Wrongful Convictions

Findlaw reports in DNA Evidence Frees James Bain after 35 Years:

James Bain spent more time in prison than any of the 245 inmates previously exonerated by DNA evidence nationwide.

But today, Bain, 54, is a free man after 35 years behind bars on a wrongful conviction. According to CNN, DNA evidence showed that Bain did not kidnap and rape a 9-year-old boy in 1974.

Bain was set free after his fifth request to use DNA evidence. Previously, he submitted handwritten motions four times seeking such testing, but was denied each time. In 2001, Florida passed a statute allowing cases to be reopened for DNA testing.