Saturday, May 15, 2010
Joseph W. Cormier has posted Providing Those with Mental Illness Full and Fair Treatment: Legislative Considerations in the Post-Clark Era (American Criminal Law Review, Vol. 47, No. 1, 2010) on SSRN. Here is the abstract:
Reforming legal treatment of individuals with mental illness has been a topic that periodically resurfaces only to quickly be replaced by the next emergent public policy issue. Decisions are generally made in a reactionary fashion instead of the more deliberative processes afforded other ongoing issues such as taxes, health care, budgets, and others. Now that the dust has settled from the Supreme Court’s decision in Clark v. Arizona, it is time that legislatures take another look, this time with a broader and perhaps more sober perspective, at how their legal system approaches such individuals.
Friday, May 14, 2010
Lynn McLain (University of Baltimore School of Law) has posted 'I’m Going to Dinner with Frank': Admissibility of Nontestimonial Statements of Intent When Their Relevance is to Prove the Actions of Someone Other than the Speaker (Cardozo Law Review, Forthcoming) on SSRN. Here is the abstract:
A woman tells her roommate that she is going out to dinner with Frank that evening. The next morning her battered body is found along a country road outside of town. In Frank’s trial for her murder, is her statement to her roommate admissible to place Frank with her that night? Since the Court’s 2004 Crawford decision, the confrontation clause is inapplicable to nontestimonial hearsay such as this.
American jurisdictions are widely divided on the question of admissibility under their rules of evidence, however. Many say absolutely not. A sizeable number unequivocally say yes. A small number say yes, but condition admissibility on the proof of corroborating evidence that Frank met her. Although this third compromise approach has much to recommend it, the author argues that, as presently framed, it violates the rule adopted in the Supreme Court’s 1990 decision in Idaho v. Wright applying the confrontation clause.
The author makes several other novel arguments. First, she argues that Wright continues to apply to nontestimonial hearsay, but via the due process clause. Next she suggests that jurisdictions may constitutionally achieve the same result, however, in one of two ways: (1) they could codify the corroboration requirement in their definition of the applicable evidence rule, the state of mind hearsay exception; or (2) through their case law, they could admit the hearsay statement without requiring corroborating evidence, but invoke a corroboration requirement when evaluating the sufficiency of the evidence, for due process reasons, at the close of the case.
I. Bennett Capers (Hofstra University - School of Law) has posted Rethinking the Fourth Amendment: Race, Citizenship, and the Equality Principle (Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 46, 2010) on SSRN. Here is the abstract:
Notwithstanding claims that the election of President Barack Obama signals a post-racial epoch, one does not have to look far for evidence that race still matters. It is particularly evident in how we police, which remains very much racially inflected. Even when racial animus is absent, there often persists the perception that racial bias is present, even inevitable, as the recent firestorm over the arrest of Harvard Professor Henry Louis Gates attests to. Scholars such as Randall Kennedy have long argued that disparate treatment by police amounts to the imposition of a “racial tax.” But this comparison, while descriptively apt, falls short of capturing the complexity and interconnectivity of the harms resulting from disparate treatment. It is time for a broader argument. It is time to identify such disparate treatment, as well as the perception of disparate treatment, for what it is: a flaw in our claim of equal citizenship. This Article makes that argument.
To remedy this state of affairs, this Article proposes a new criminal procedure revolution, one that understands criminal procedure rights, and specifically the Fourth Amendment, as inextricably linked to citizenship rights. This new criminal procedure would re-conceptualize reasonable suspicion and consensual encounters, encourage randomization, and reinvigorate civil actions, all with a view of furthering the goal of equal citizenship. While these changes may not eliminate race-based policing entirely, they will move us significantly closer to the goal of equal citizenship. And they will move us closer to a post-racial America.
Thursday, May 13, 2010
Dan Markel , Ethan J. Leib and Jennifer M. Collins (pictured) (Florida State University College of Law , University of California - Hastings College of the Law and Wake Forest University - School of Law) have posted Rethinking Criminal Law and Family Status IYale Law Journal, Vol. 119, pp. 1864-1903, 2010) on SSRN. Here is the abstract:
In our recent book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties (OUP 2009), we examined and critiqued a number of ways in which the criminal justice system uses family status to distribute benefits or burdens to defendants. In their review essays, Professors Alafair Burke, Alice Ristroph & Melissa Murray identify a series of concerns with the framework we offer policymakers to analyze these family ties benefits or burdens. We think it worthwhile not only to clarify where those challenges rest on misunderstandings or confusions about the central features of our views, but also to show the deficiencies of the proposed alternatives. While we appreciate and admire the efforts of our critics to advance this important conversation, we hope this Essay will illuminate why the normative framework of Privilege or Punish remains a more helpful structure to policymakers assessing how family status should intersect with the criminal law within a liberal democracy such as our own.
In Privilege or Punish: Criminal Justice and the Challenge of Family Ties, Dan Markel, Jennifer Collins, and Ethan Leib make an important contribution to the growing literature on criminal law and families by documenting the ways that criminal law advantages and burdens actors based on familial status and identifying the potential harms that are unleashed when criminal law recognizes family status. This Feature seeks to complement that contribution by situating the authors’ observations within the context of two considerations beyond Privilege or Punish’s immediate focus: chronological trends and the practical realities that can shape application of formal law. By distinguishing criminal law’s traditions from contemporary trends, the Feature identifies both a gradual de-emphasis of legally recognized family forms and an increased willingness to enforce criminal law within families, regardless of how they are comprised. It concludes by arguing that effective enforcement of criminal law within families often requires the criminal justice system to yield to family relationships, not for the purpose of promoting preferred family forms, but to serve the criminal law’s familiar retributive and utilitarian goals.
Wednesday, May 12, 2010
Pat O'Malley (University of Sydney - Faculty of Law) has posted Fines, Risks and Damages: Money Sanctions and Justice in Control Societies on SSRN. Here is the abstract:
Fines and damages are the principal sanctions of criminal, civil and regulatory law. Yet in law it does not matter who pays money sanctions. Damages overwhelmingly are paid by insurers and the cost of insurance premiums loaded into commodity prices and thus dispersed among consumers. Fines are paid anonymously, increasingly are set by a fixed tariff (especially traffic fines that are the vast bulk of all fines), and are merging with fees, licenses, taxes and premiums. Fines and damages thus work literally as prices, and serve to modulate and regulate distributions of harmful or unwanted actions. In this sense justice is far more about the governance of risk than about individual justice.
Tuesday, May 11, 2010
This article explores the role of the defence in Islamic criminal trials both within the classical Sunnite tradition and the procedural laws of two modern Muslim states (Saudi Arabia and Malaysia). Centering on the Common Law understanding of ‘defence’ as implying the right to a lawyer, it examines how prophetic tradition has interacted with juristic interpretation and state regulatory power to provide equivalent protection and safeguard rights to ‘due process’.
David A. Harris (University of Pittsburgh - School of Law) has posted Picture This: Body Worn Video Devices ('Head Cams') as Tools for Ensuring Fourth Amendment Compliance by Police (Texas Tech Law Review, Forthcoming) on SSRN. Here is the abstract:
A new technology has emerged with the potential to increase police compliance with the law and to increase officers’ accountability for their conduct. Called “body worn video” (BWV) or “head cams,” these devices are smaller, lighter versions of the video and audio recording systems mounted on the dash boards of police cars. These systems are small enough that they consist of something the size and shape of a cellular telephone earpiece, and are worn by police officers the same way. Recordings are downloaded directly from the device into a central computer system for storage and indexing, which protects them from tampering and assures a defensible chain of custody.
This article explores the good that BWV can do for both the police and members of the public, particularly how these recordings might play a role in assuring that officers comply with Fourth Amendment search and seizure rules. Field tests of BWV in Britain have shown that police used the devices to keep records and record evidence, and that the devices were a uniquely effective bulwark against false complaints. Coupled with a requirement that every citizen encounter involving a search or seizure be recorded, and a presumption that without a recording the factfinder must draw inferences in favor of the defendant, BWV can help resolve disputes over search and seizure activities, and give the public a heretofore unattainable degree of assurance that police officers enforcing the law obey it as they do so. While BWV is certainly no panacea, and presents significant issues of tampering and reliability, it can help bring accountability and rule following to an aspect of police behavior that has largely proven resistant to it.
Monday, May 10, 2010
This Chapter examines the law and economics of accuracy in criminal sanctions. It suggests that the law’s ability to impose sanctions that are accurate on an individualized level is constrained by three information problems: (1) criminals’ lack of information, ex ante, concerning victim harms; (2) courts’ lack of information, ex post, concerning harms; and (3) courts’ inability to process information concerning harms. As a result of these information problems, the law oftentimes settles for a second-best approach to sanctioning: it imposes sanctions based on the average harm caused by a type of crime (e.g., robbery), as opposed to the actual harm caused by particular episodes of that crime. This approach is second-best because it under-protects certain high-harm victims — ones who suffer greater than average harms — and over-protects low-harm victims — ones who suffer lower-than-average harms. Although we may be stuck with this second-best approach to legal sanctions, the Chapter suggests how society could (and does) correct the under-deterrence problem average sanctions generate: encourage high-harm victims to supplement law’s protection by buying precautions against crime. Crime victims do not face the same information constraints that courts do. In particular, they know more about the potential harms they would suffer from crime than do criminals (ex ante) and courts (ex post). What is more, victims can act upon that information and purchase a level of protection customized to their particular needs, including their idiosyncratic harms. In fact, imposing legal sanctions based on average harms may spur high-harm victims to buy more precautions against crime, arguably moving the combined public/private criminal justice system closer to providing an optimal level of deterrence against inefficient crime.
A court in Brooklyn has deemed inadmissible fMRI evidence of the truthfulness of a witness in an employment discrimination case. The details are sketchy but it sounds like the evidence was declined on the ground that credibility is a jury determination. Apparently, the court did not consider the scientific merits or demerits of the technology. See Wired story here (and an earlier story here).
We will soon learn more about how courts handle such evidence in an upcoming criminal case. The issues raised may be especially interesting in the criminal context where defendants have certain constitutional interests in presenting exculpatory evidence. As I have argued informally and as Fred Schauer has argued in print ("Neuroscience, lie-detection and the law," Trends in Cognitive Sciences, 2010), the strength of evidence we'd like to have to support a tort claim is different than the strength of evidence we need to raise a reasonable doubt in a criminal case.
Here's what we know about the case from the Wired article:
Wired.com has learned that more brain scans conducted by the company Cephos will be put to the legal test in a federal case in the western district of Tennessee. On May 13, that court will hear arguments over fMRI evidence in a Daubert hearing, the procedure used to assess the admissibility of scientific information in Federal court.
In that case, the
attorney charges that Lorne Semrau, a psychiatrist, sought to defraud Medicare and Medicaid in the way he contracted and billed for his services. Semrau argues he had no intent to defraud the government and underwent a brain scan to prove it. His attorney, J. Houston Gordon, filed paperwork indicating that Stephen Laken, president of Cephos, would testify on the fMRI evidence the company obtained. U.S.
“Dr. Laken will further testify that Dr. Semrau was presented questions using fMRI technology and was instructed to respond to questions in either/both a truthful or deceitful manner, depending on the question posed,” Gordon wrote. “The fMRI screening demonstrated to a scientific certainty, that Defendant was truthful and possessed no intent to defraud or cheat the government.”
Sunday, May 9, 2010
Part I of an interesting investigative piece focused on California prisons appear in today's Sacramento Bee.
A Bee investigation into the behavior units, including signed affidavits, conversations and correspondence with 18 inmates, has uncovered evidence of racism and cruelty at the High Desert facility. Inmates described hours-long strip-searches in a snow-covered exercise yard. They said correctional officers tried to provoke attacks between inmates, spread human excrement on cell doors and roughed up those who peacefully resisted mistreatment.
Many of their claims were backed by legal and administrative filings, and signed affidavits, which together depicted an environment of brutality, corruption and fear.
|1||333||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
|2||290||The Shadow of State Secrets |
Georgetown University Law Center,
Date posted to database: March 8, 2010
|3||232||Disentangling Child Pornography from Child Sex Abuse |
Carissa Byrne Hessick,
Arizona State, Sandra Day O'Connor College of Law,
Date posted to database: March 28, 2010
|4||195||Taxing Punitive Damages |
Gregg D. Polsky, Dan Markel,
Florida State University - College of Law, Florida State University College of Law,
Date posted to database: June 19, 2009
Last Revised: April 28, 2010
|5||193||Twenty-Five Years of Social Science in Law |
John Monahan, Laurens Walker,
University of Virginia School of Law, University of Virginia School of Law,
Date posted to database: February 26, 2010
|6||187||When Is Tax Enforcement Publicized? |
Joshua D. Blank, Daniel Z. Levin,
New York University School of Law, Rutgers Business School - Newark and New Brunswick,
Date posted to database: March 23, 2010
|7||168||Vigilante Justice: Prosecutor Misconduct in Capital Cases |
Jeffrey L. Kirchmeier, Stephen R. Greenwald, Harold Reynolds, Jonathan Sussman,
CUNY School of Law, Fordham University - School of Law, Private Practice, New York County Defender Services,
Date posted to database: April 5, 2010 [new to top ten]
|8||166||Is the Prohibition of Homicide Universal? Evidence from Comparative Criminal Law |
Georgetown University - Law Center,
Date posted to database: March 23, 2010 [9th last week[
|9||165||Powell, Blackmun, Stevens, and the Pandora’s Box Theory of Judicial Restraint |
William W. Berry,
University of Mississippi School of Law,
Date posted to database: March 3, 2010 [7th last week]
|10||161||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,
Date posted to database: March 3, 2010 [8th last week]