CrimProf Blog

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

Saturday, April 10, 2010

Gabel on Forensiphilia

Gabel jessica Jessica D. Gabel (Georgia State University - College of Law) has posted Forensiphilia: Is the Public Fascination with Forensic Science a Love Affair or a Fatal Attraction? on SSRN. Here is the abstract:

In February of 2009, the National Academy of Sciences released its much anticipated diagnosis and prescription for what ails the forensic science community. The Report confirmed the low but steady noise that had been building in the criminal justice system for at least a decade: that, with the exception of DNA evidence, much of what is presented as forensic science is not really science at all. Instead, a large segment of the high-tech pageantry seen on television and now expected and employed in court would fail to clear even the lowest hurdles of stringent scientific inquiry. Nonetheless, forensic evidence is often used to demonstrate the certainty of a person’s guilt by authoritatively “matching” evidence from the crime scene or victim to the suspect. The Report sounded the alarm as to the needs of the forensic science community, raised critical concerns, and even suggested a remedy by calling for the creation of an independent agency to regulate the field of forensic science. Moreover, it came at a time of “forensiphilia” – where forensic science is itself a celebrity that captivates and enchants audiences. One year after the Report caused ripples throughout scientific and legal circles, it seems as though, in some ways, the shock has passed, numbness has set in, and progress is idle. This article will examine the evolution of forensic science on television and in the courtroom. It will evaluate whether DNA is the reliable anomaly among the forensic science disciplines. Finally, along a similar vein to the Report’s resolution to strengthen forensic science, this article will call for a strengthening in legal education aimed at fostering both an understanding of the advances in science and a skepticism towards methods that inherently lack a solid foundation in science.

April 10, 2010 | Permalink | Comments (0)

Friday, April 9, 2010

Priester on Apprendi

Priester brian p Benjamin J. Priester (Florida Coastal School of Law) has posted Apprendi Land Becomes Bizarro World: 'Policy Nullification' and Other Surreal Doctrines in the New Constitutional Law of Sentencing on SSRN. Here is the abstract:

Imagine a final exam essay answer in constitutional law which sets forth doctrinal principles like the following: Decision-makers should preferably give vague explanations grounded in moral philosophy rather than specific explanations connected to particular findings. Appellate review of trial court decision-making is unconstitutional. Courts are entitled to substitute their own policy preferences for those enacted by the legislature on questions of non-constitutional law; in fact, it is probably unconstitutional to enact legislation expressly compelling courts to follow the legislature’s non-constitutional policy preferences. One might expect such an exam answer to receive an F - but if the exam question involved the United States Supreme Court’s new constitutional law of sentencing, then the student has probably earned an A. Welcome to Apprendi Land - which has now become Bizarro World. This article examines and criticizes these and other surreal doctrines in the Court’s decisions, and argues that the Court must abrogate its expansion of Apprendi doctrine to restore most issues of sentencing policy to non-constitutional status.

April 9, 2010 | Permalink | Comments (0)

Tuerkheimer on Science Dependent Prosecution

Tuerkheimer deborah Deborah Tuerkheimer (DePaul University - College of Law) has posted Criminal Justice at a Crossroads: Science-Dependent Prosecution and the Problem of Epistemic Contingency on SSRN. Here is the abstract:

Increasingly in our criminal justice system, guilt is proven on the basis of science – a phenomenon I call science-dependent prosecution. This trend likely will continue, and even accelerate. Yet legal scholars have not grappled with the larger implications of this shift. Recent attacks on the validity of a number of forensic disciplines beg the question: must law perpetually chase science?

Science is subject to a process of constant revision, upending accepted “truths” in unpredictable ways. I argue that our justice system is ill-equipped to deal with the provisional nature of scientific knowledge. The problem I identify challenges fundamental tenets of criminal law and procedure: the privileging of finality; the deference afforded juries; the virtues of plea bargaining; the wisdom of adversarial models of justice; and, at bottom, our commitment to the presumption of innocence. Now is the time to reckon with the proper place of science in determining guilt. This article begins this conversation, using Shaken Baby Syndrome (SBS) as a case study. 

Criminal law’s reliance on science should not be jettisoned. But our system must be armed to deal with the inevitability of scientific change. I conclude by offering suggestions for reform.

April 9, 2010 | Permalink | Comments (0)

Thursday, April 8, 2010

Hessick on Distinguishing Child Pornography from Child Sex Abuse

Hessick Carissa Carissa Byrne Hessick (Arizona State, Sandra Day O'Connor College of Law) has posted Disentangling Child Pornography from Child Sex Abuse on SSRN. Here is the abstract:

Recent years have seen a significant increase in the criminal penalties associated with possession of child pornography. The new severity appears to be premised on arguments that blur the distinction between those who possess images of child pornography and those who sexually abuse children. In particular, sentences have been increased based on arguments that possession of pornography is equivalent to or worse than child sex abuse, arguments that viewing child pornography increases the risk that an individual will sexually abuse a child, and arguments that those who possess child pornography are abusing children undetected. This Article identifies instances where possession of child pornography and child sex abuse have been conflated, critically evaluates the arguments that promote such conflation, and identifies independent concerns with conflation. Specifically, it argues that blurring the distinction between the two crimes allows us to continue to misperceive child sex abuse as a stranger-danger issue, and that when law enforcement statistics aggregate possession and child sex abuse, then the public may be misled into believing that law enforcement is successfully battling child sex abuse, when that is not the case. The Article concludes that the modern trend of increasing sentences for possession of child pornography ought to be reviewed, and it suggests several possible areas of reform.

April 8, 2010 | Permalink | Comments (0)

Judicial Sentencing After the Booker/Fanfan Decision

Ulmer jeffrey Jeffery Todd Ulmer (Penn State University), Michael Thomas Light (Penn State University), John H Kramer , and James Eisenstein have posted Does Increased Judicial Discretion Lead to Increased Disparity? the 'Liberation' of Judicial Sentencing Discretion in the Wake of the Booker/Fanfan Decision on SSRN. Here is the abstract:

The Unites States Sentencing Guidelines are among the most ambitious attempts in history to control sentencing discretion. However, a major sea change occurred in January of 2005, when the U.S Supreme Court ruled in United States v. Booker and Fanfan that in order to be constitutional, the federal guidelines must be advisory rather than presumptive. The wake of Booker/Fanfan may bring decreased uniformity and consistency in sentencing between District Courts, and also increased unwarranted disparity based on the social status characteristics of defendants. We frame the question of the impact of the Booker/Fanfan decisions on inter-jurisdictional variation and sentencing disparity as an opportunity to examine the issue of whether the increased opportunity to sentence according to substantively rational criteria entails increased extralegal disparity. We first review the Booker/Fanfan decision and its importance and aftermath, and then review what is known from previous studies of disparity in federal sentencing pre-Booker/Fanfan. We draw on a conceptualization of courts as communities and a focal concerns model of sentencing decisions to frame expectations about federal sentencing in the wake of Booker/Fanfan. We test these hypotheses using USSC data on federal sentencing outcomes from three time periods: prior to the 2003 PROTECT Act, the period governed by the PROTECT Act, and the early and later post-Booker/Fanfan period (2006-2007, and 2008). We find that while federal judges in general sentence more leniently post-Booker, extralegal disparity and between-district variation in the effects of extralegal factors on sentencing have not increased post-Booker. We also explain why our findings contrast with the March 2010 USSC report updating the analysis of sentencing post-Booker. We conclude that allowing judges greater freedom to exercise substantive rationality does not necessarily result in increased extralegal disparity.

April 8, 2010 | Permalink | Comments (0)

Starger on Post-Conviction DNA Access

Starger colin p Colin P. Starger (New York University - School of Law) has posted The DNA of an Argument: A Case Study in Legal Logos on SSRN. Here is the abstract:

This Article develops a framework for analyzing legal argument through an in-depth case study of the debate over federal actions for post-conviction DNA access. Building on the Aristotelian concept of logos, this Article maintains that the persuasive power of legal logic depends in part on the rhetorical characteristics of premises, inferences, and conclusions in legal proofs. After sketching a taxonomy that distinguishes between prototypical argument logo (formal, empirical, narrative, and categorical), the Article applies its framework to parse the rhetorical dynamics at play in litigation over post-conviction access to DNA evidence under 42 U.S.C. § 1983, focusing in particular on the procedural controversy over using § 1983 instead of federal habeas to seek DNA testing (the so-called Heck problem). The essential competing logics in this debate are unpacked through close readings of the clashing opinions of Judge Luttig and Chief Judge Wilkinson in the Harvey II case. The logos of Judge Luttig's argument in support of § 1983 DNA-access actions is classified as formal because it presents itself as a deductive application of the Heck rule whereas the logos of Chief Judge Wilkinson's counter- argument is classified as narrative because it interprets Heck as part of a larger story about the “morality of process.” Three primary claims are then advanced. First, based on an empirical review of all cases in the debate, it is argued that Judge Luttig’s proof has exerted a singularly persuasive influence on the § 1983 DNA access discourse. Second, it is claimed that the rhetorical success of Judge Luttig’s opinion derives from the formal logos of his Heck argument. Finally, the persuasive appeal of Luttig’s formal logos is attributed to its resonance with the relevant Supreme Court doctrine, which also evinces a formal logos in its approach to jurisdictional line-drawing. As this Article was accepted for publication prior to the Court’s decision in Osborne, a § 1983 DNA-access action, it used its rhetorical analysis to buttress an ex ante prediction that Heck would present no bar for William Osborne. In an ex post Epilogue, the (mostly vindicated) analysis is assessed.

April 8, 2010 | Permalink | Comments (0)

Wednesday, April 7, 2010

Miller on the Warren Court

Miller eric Eric J. Miller (Saint Louis University - School of Law) has posted Forget Privacy: The Warren Court’s Regulatory Revolution in Criminal Procedure on SSRN. Here is the abstract:

The standard story describing the Warren Court’s criminal procedure “rights revolution,” claims that the Court, motivated by liberal egalitarianism, engaged in a rights-expanding jurisprudence that made it harder for the police to search, seize, and interrogate criminal defendants. Frightened by the popular backlash against high crime rates, a cowed Court in Terry v. Ohio shifted from its rights-expanding to a rights-constricting phase, making it easier for the police to search and seize criminal suspects. Measured by this rights revolution, there were in fact two Warren Courts, a liberal and a more conservative one, emblematically separated by Terry.

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April 7, 2010 | Permalink | Comments (0)

Gray on the Theory of Punishment as Suffering

Gray david David C. Gray (University of Maryland - School of Law) has posted Punishment as Suffering on SSRN. Here is the abstract:

In a series of recent high-profile articles, a group of contemporary scholars argue that the criminal law is a grand machine for the administration of suffering. The machine requires calibration, of course. The main standard we use for ours is objective proportionality. We generally punish more serious crimes more severely and aim to inflict the same punishment on similarly situated offenders who commit similar crimes. In the views of these authors, this focus on objective proportionality makes ours a rather crude machine. In particular, it ignores the fact that 1) different offenders may suffer to a different degree when subjected to the same punishment; 2) different offenders may have different happiness baselines, which may lead to disparities in absolute, subjective, and comparative happiness-to-suffering ratios among offenders subject to the same punishment; and 3) offenders’ self-reported states of happiness and suffering vary over the course of a sentence, revealing inaccuracies in our objective assessments of severity. 

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April 7, 2010 | Permalink | Comments (0)

Tuesday, April 6, 2010

The Fraud Triangle and Theory of Planned Behavior

Cohen jeffrey r Ding yuan  Jeffrey R. Cohen  (Boston College - Department of Accounting), Yuan Ding  [China Europe International Business School (CEIBS)], Cédric Lesage  (HEC School of Management, Paris), and Hervé Stolowy  (HEC Paris) have posted Managers' Behavior in Corporate Fraud: The Fraud Triangle and the Theory of Planned Behavior on SSRN. Here is the abstract:

Based on evidence from press articles covering 39 corporate fraud cases that went public during the period 1998-2005, the objective of this paper is to examine the role of managers’ behavior in the commitment of the fraud. This study integrates the fraud triangle (FT) and the theory of planned behavior (TPB) to gain a better understanding of fraud cases. The results of the analysis suggest that personality traits appear to be a major fraud risk factor. Auditors should evaluate the ethics of management through the components of the theory of planned behavior: the assessment of attitude, subjective norms, perceived behavioral control and moral obligation. Therefore, it is potentially important that the professional standards that are related to fraud detection strengthen the emphasis on managers’ behavior that may be associated with unethical behavior.

April 6, 2010 | Permalink | Comments (1)

Klingele on Judicial Sentence Modification

Klingele cecelia-thumb Cecelia M. Klingele (University of Wisconsin Law School) has posted Changing the Sentence Without Hiding the Truth: Judicial Sentence Modification as a Promising Method of Early Release on SSRN. Here is the abstract:

Last year, as the State of California struggled with a $42 billion budget deficit, its financial inability to correct constitutionally-deficient prison conditions led a federal court to order the release of 40,000 state prisoners. In Oregon, Michigan, Connecticut, Vermont, and Delaware, spending on corrections now exceeds spending on higher education. Across the nation, more than 1 of every 100 Americans is behind bars. When the financial crisis of 2008 dealt its blow, state correctional budgets were already nearing a breaking point. Now, in the wake of unprecedented budget shortfalls, state governments have been forced to confront a difficult reality: the ever-increasing prison population has come at too high a price. The question is no longer whether to reduce the number of prisoners, but how. 

Reversing years of ever-harsher sentencing policies, jurisdictions throughout the United States are trying to cut costs by expanding good time credit, increasing parole eligibility, and authorizing new forms of early release. This Article examines judicial sentence modification, an often overlooked ameliorative mechanism that has potential benefits many other forms of early release lack. For states wishing to promote early release in a manner that is both transparent and publicly accountable, judicial sentence modification is a promising, and potentially sustainable, new mechanism for sentence reduction.

April 6, 2010 | Permalink | Comments (1)

Kerr on Computer Search and Seizure

Kerr orin s Orin S. Kerr  (George Washington University - Law School)  (Virginia Law ReviewGWU Law School Public Law Research Paper No. 496has posteEx Ante Regulation of Computer Search and Seizure on SSRN. Here is the abstract:

In the last decade, magistrate judges around the United States have introduced a new practice of regulating the search and seizure of computers by imposing restrictions on computer warrants. These ex ante restrictions are imposed as conditions of obtaining a warrant: Magistrate judges refuse to sign warrant applications unless the government agrees to the magistrate's limitation on how the warrant will be executed. These limitations vary from magistrate to magistrate, but they generally target four different stages of how computer warrants are executed: the on-site seizure of computers, the timing of the subsequent off-site search, the method of the off-site search, and the return of the seized computers when searches are complete.

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April 6, 2010 | Permalink | Comments (0)

Monday, April 5, 2010

Giannelli on Scientific Research

Giannelli paul c Paul C. Giannelli (Case Western Reserve University School of Law) (University of Illinois Law Review, Forthcoming, Case Legal Studies Research Paper No. 2010-6) has posted Daubert and Forensic Science: The Pitfalls of Law Enforcement Control of Scientific Research on SSRN. Here is the abstract:

In 2009, the National Academy of Sciences published a landmark report on forensic science: Strengthening Forensic Science in the United States: A Path Forward. The Report represents one of the most important developments in forensic science since the establishment of the crime laboratory in the 1920s. Within months, Justice Scalia cited the report in Commonwealth v. Melendez-Diaz, noting that “[s]erious deficiencies have been found in the forensic evidence used in criminal trials” and “[f]orensic evidence is not uniquely immune from the risk of manipulation.” After two years of studying fingerprints, handwriting, ballistics, and other common forensic techniques, the Academy concluded that “some forensic science disciplines are supported by little rigorous systematic research to validate the discipline’s basic premises and techniques.” Indeed, “only nuclear DNA analysis has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between an evidentiary sample and a specific individual or source.” 

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April 5, 2010 | Permalink | Comments (1)

Miller on the Tiahrt Amendment

Miller colin Colin Miller  (John Marshall Law School) has posted Lawyers, Guns and Money: Why the Tiahrt Amendment’s Ban on the Admissibility of ATF Trace Data in State Court Actions Violates the Commerce Clause and the Tenth Amendment on  SSRN. Here is the abstract:

The Tiahrt Amendment provides in relevant part that ATF trace data "shall be inadmissible in evidence, and shall not be used, relied on, or disclosed in any manner, nor shall testimony or other evidence be permitted based on the data, in a civil action in any State (including the District of Columbia) or Federal court..." This Amendment has hamstrung cities and localities which, in an effort to combat crime with civil litigation, have brought actions against the gun industry sounding in public nuisance, with trace data being crucial to the success of such actions. Because this Amendment regulates state as well as federal court proceedings, it is defensible, if at all, under Congress’ Commerce Clause power. 

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April 5, 2010 | Permalink | Comments (0)

Sunday, April 4, 2010

Berry on the Pandora's Box of Judicial Restraint

Berry III william William W. Berry III (University of Mississippi School of Law) has posted Powell, Blackmun, Stevens, and the Pandora’s Box Theory of Judicial Restraint on SSRN. Here is the abstract:

In recent years, three Supreme Court justices, Powell, Blackmun, and most recently, Stevens, have all called for the abolition of the death penalty, repudiating their prior views on capital punishment. This article attempts to understand these reversals not as normative shifts on the propriety of capital punishment, but instead from an institutional choice perspective. In other words, these justices decided to abandon the death penalty not because they changed their view on its morality or efficacy. Rather, the justices changed their conception of judicial restraint with respect to the Eighth Amendment. They each moved from a position of complete deference to state legislatures to regulating state legislatures’ use of capital punishment before ultimately deciding to remove the ability of state legislatures to use the death penalty altogether. 

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April 4, 2010 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

Ssrn logo are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 407 The Emerging Law of Detention: The Guantanamo Cases as Lawmaking
Benjamin Wittes, Robert Chesney, Rabea Benhalim,
Unaffiliated Authors - affiliation not provided to SSRN, University of Texas School of Law, Brookings Institution,
Date posted to database: January 27, 2010
2 276 The Greatest Legal Movie of All Time: Proclaiming the Real Winner
Grant H. Morris,
University of San Diego School of Law,
Date posted to database: January 12, 2010
3 245 The Case Against the Goldstone Report: A Study in Evidentiary Bias
Alan Dershowitz,
Harvard Law School,
Date posted to database: January 27, 2010 [new to top ten] 
4 234 Brain Imaging for Legal Thinkers: A Guide for the Perplexed
Owen D. Jones, Joshua Buckholtz, Jeffrey D. Schall, Rene Marois,
Vanderbilt University - School of Law & Department of Biological Sciences, Vanderbilt University, Neuroscience Program, Vanderbilt University - Department of Psychology, Vanderbilt University - Department of Psychology,
Date posted to database: March 4, 2010 [3rd last week]
5 206 The Shadow of State Secrets
Laura Donohue,
Georgetown University Law Center,
Date posted to database: March 8, 2010 [new to top ten]
6 196 Judging Police Lies: An Empirical Perspective
Melanie D. Wilson,
University of Kansas - School of Law,
Date posted to database: January 11, 2010 [5th last week]
7 193 'The Look in His Eyes': The Story of State v. Rusk and Rape Reform
Jeannie Suk,
Harvard University - Harvard Law School,
Date posted to database: February 3, 2010 [4th last week]
8 170 A., B. & C. v. Ireland: 'Europe's Roe v. Wade'?
Shannon K. Calt,
Lewis & Clark Law Review,
Date posted to database: January 24, 2010 [6th last week]
9 168 We Don't Want to Hear It: Psychology, Literature and the Narrative Model of Judging
Kenworthey Bilz,
Northwestern University - School of Law,
Date posted to database: February 5, 2010 [new to top ten]
10 167 Doubting Free Will: Three Experiments
John A. Humbach,
Pace University School of Law,
Date posted to database: January 12, 2010 [7th last week]

April 4, 2010 | Permalink | Comments (0)