April 17, 2010
Ohlin on a Meta-Theory of International Criminal ProcedureJens David Ohlin (Cornell Law School) has posted A Meta-Theory of International Criminal Procedure: Vindicating the Rule of Law (UCLA Journal of International Law and Foreign Affairs, Vol. 14, pp. 77-120, 2009) on SSRN. Here is the abstract:
April 16, 2010
Robinson on Criminalization DecisionsPaul H. Robinson (University of Pennsylvania Law School) has posted Criminalization Tensions: Empirical Desert, Changing Norms & Rape Reform on SSRN. Here is the abstract:
Hamilton on Sex Offender LawsMelissa Hamilton (University of Toledo College of Law) has posted Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws on SSRN. Here is the abstract:
April 15, 2010
Gershowitz and Killinger on Excessive ProsecutionAdam M. Gershowitz and Laura Killinger have posted The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants on SSRN. Here is the abstract:
Sadat on International Criminal JurisdictionLeila N. Sadat (Washington University School of Law in St. Louis) has posted Unpacking the Complexities of International Criminal Tribunal Jurisdiction (Washington U. School of Law Working Paper No. 10-03-13) on SSRN. Here is the abstract:
April 14, 2010
Kirchmeier et al on Vigilante Justice
Jeffrey L. Kirchmeier (CUNY School of Law), Stephen R. Greenwald (Fordham University - School of Law), Harold Reynolds (Private Practice), and Jonathan Sussman (New York County Defender Services) have posted Vigilante Justice: Prosecutor Misconduct in Capital Cases (Wayne Law Review, Vol. 55, pp. 1327-1385, 2009) on SSRN. Here is the abstract:
Instances of prosecutor misconduct may occur prior to trial during discovery, during jury selection, and during trial and post-trial. In Part One of the Article, we discuss situations where prosecutors withhold exculpatory evidence from defendants in capital cases. In Part Two, we discuss the problem where prosecutors improperly use pretrial publicity to achieve convictions and death sentences in capital cases. Misconduct may occur during jury selection, and in Part Three, we examine situations where some prosecutors have improperly used peremptory challenges to exclude prospective jurors based upon race. Under Batson v. Kentucky, 476 U.S. 79 (1986), this type of prosecutor misconduct may rise to constitutional significance. Next, in Part Four, we consider the trial itself and discuss situations where prosecutors improperly used false evidence or statements in capital cases.
In Part Five, we consider methods for addressing misconduct in capital cases. The Article considers three different categories of ways to deter instances of prosecutor misconduct in capital cases: (1) institutional and systemic methods of preventing prosecutor misconduct; (2) punishment of individual prosecutors responsible for egregious misconduct; and (3) remedies for defendants who are victims of misconduct. After giving an overview of various suggestions, the Article concludes with five specific proposals that should be the first steps toward deterring and remedying prosecutor misconduct in capital cases.
Warnken on the Rights to ConfrontationByron L. Warnken (University of Baltimore School of Law) has posted Right to Confrontation: Application of Crawford v. Washington to Documents on SSRN. Here is the abstract:
April 13, 2010
Hartung on First-Degree Murder Appeals
Stephanie Roberts Hartung (Suffolk University Law School) has posted The Limits of 'Extraordinary Power': A Survey of First-Degree Murder Appeals Under Massachusetts General Laws Chapter 278, § 33E (Suffolk Journal of Trial and Appellate Advocacy, Vol. 16, Fall 2010) on SSRN. Here is the abstract:
The Supreme Judicial Court of Massachusetts is afforded “extraordinary power” in reviewing first-degree murder convictions on appeal. Yet despite the plenary review established under § 33E - including the right to review the entire trial transcript for errors neither objected to at trial, nor raised on appeal - the survey undertaken in this article concludes that surprisingly few cases are reversed on appeal. This article presents the results of a survey of first-degree murder appeals in Massachusetts from 1998-2008. During that time-frame, just 7.25% of these convictions were reversed on appeal. Additionally, this article discusses the substantive issues giving rise to reversal, and the reversal rate for each issue. Criminal practitioners and scholars can benefit from a practical understanding of the aspects of homicide law which are most likely to support the reversal of a first-degree murder conviction.
Slobogin on Justice Ginsburg's Gradualism in Criminal Procedure
Christopher Slobogin (Vanderbilt University - School of Law) has posted Justice Ginsburg's Gradualism in Criminal Procedure (Ohio State Law Journal, Vol. 70, No. 4, p. 870, 2009) on SSRN. Here is the abstract:
This article, written for a symposium analyzing Justice Ginsburg’s jurisprudence on the 15th anniversary of her tenure on the Supreme Court, is the first sustained look at her views on criminal procedure issues (search and seizure, interrogation, the right to counsel, trial rights, sentencing procedures, and the criminal appeals and collateral review processes). Not surprisingly, given her ACLU background, she tends to vote in favor of criminal defendants’ positions more often than most other justices, and she is the most likely to do so since Chief Justice Roberts joined the Court. At the same time, the gradualist tendencies that she has exhibited in other areas of the law – involving incremental steps rather than sweeping pronouncements – is apparent in this area as well. After describing in some detail the major trends in Justice Ginsburg’s voting patterns in criminal procedure cases, the article investigates the effects of this gradualist approach in the Fourth Amendment area, focusing in particular on her decision-making in drug testing and car stop cases.
Wexler on Therapeutic Jurisprudence
David B. Wexler (University of Arizona - James E. Rogers College of Law) has posted From Theory to Practice and Back Again in Therapeutic Jurisprudence: Now Comes the Hard Part on SSRN. Here is the abstract:
This essay is the basis of a plenary address to be delivered in Melbourne, Australia at an international conference on 'nonadversarial justice.' In this piece, I trace how therapeutic jurisprudence (TJ) has, through a few simple conceptual frameworks, influenced the practice of many judges and lawyers. Many of their contributions have been unearthed on a "hit or miss" basis, as when they happen to be mentioned during TJ panel discussions at international conferences. But we need a more systematic way of collecting these creative contributions, and we also need to develop a new type of practical interdisciplinary scholarship to disseminate and evaluate these developments. The paper explores some methods for accomplishing this.
April 12, 2010
Pearlman on Expanding the Use of Sarbanes-OxleyAdam Ross Pearlman has posted Putting Terrorists Out of Business: Using Sarbanes-Oxley to Prosecute Terror Financiers on SSRN. Here is the abstract:
Richman on the Demand Side of OvercriminalizationDaniel C. Richman (Columbia Law School) has posted The Demand Side of Overcriminalization – A Celebration of Bill Stuntz on SSRN. Here is the abstract:
April 11, 2010
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Benjamin Wittes, Robert Chesney, Rabea Benhalim,
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Date posted to database: January 27, 2010
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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,
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|9||147||The Undiscovered Country: Execution Competency & Comprehending Death |
Jeffrey L. Kirchmeier,
CUNY School of Law,
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|10||145||Recognizing Constitutional Rights at Sentencing |
F. Andrew Hessick, Carissa Byrne Hessick,
Arizona State University - Sandra Day O'Connor College of Law, Arizona State, Sandra Day O'Connor College of Law,
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Radsan on Modernizing the CIPAAfsheen John Radsan (William Mitchell College of Law) has posted Remodeling the Classified Information Procedures Act (CIPA) (William Mitchell Legal Studies Research Paper No. 2010-09) on SSRN. Here is the abstract:
First, a prosecutor’s discovery obligations should apply to the intelligence community only when spymasters have most actively participated in the investigation. When defining “most actively” and in determining who falls within the prosecution unit, all three branches of government should err toward non-alignment. The recent creep toward conceding alignment on all cases since 9/11 should stop.
Second, courts should be less inclined to admit top-secret information into trial than information at a lower level of classification. The more sensitive the information, the more leeway courts should give prosecutors in proposing substitutions and summaries. The common sense that probably fills the gaps of CIPA practice, squeezing around cases and the statute, should be formalized by an update of CIPA.
Third, it should be possible to close portions of trials to all but the judge, jury, and the parties to the case when especially sensitive information is being presented. These limited closures will allow courts, as a compensating benefit, to lean toward defendants on Section 6 decisions as to the use of classified information at trial. By this compensation, the either/or of full disclosure versus complete suppression is traded for a range of options.
CIPA is showing its age. Even so, because its foundation is solid, it does not require a tear down as much as a remodeling. In at least three areas – alignment, Section 6, and closed portions of trials – our nation deserves a better resolution between the conflicting interests of prosecutors and spymasters.