CrimProf Blog

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

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Saturday, June 5, 2010

Fox on the Right to Silence

Dov Fox has posted The Right to Silence Protects Mental Control (LAW AND NEUROSCIENCE, CURRENT LEGAL ISSUES, Vol. 13, M. Freeman, ed., Oxford University Press, 2010) on SSRN. Here is the abstract:

This chapter argues that a right of mental control prohibits the state either from extracting a suspect’s thoughts without her meaningful consent or from making use of a suspect’s compelled recall or recognition to lay criminal blame upon her. Existing accounts of the constitutional privilege against self-incrimination are ill-equipped to address the doctrinal implications of safe and reliable forensic neuroscience. Brain imaging is importantly different, for Fifth Amendment purposes, from all other forms of evidence, because it enables state officials to obtain information directly from a suspect’s brain, in a way that affords her no opportunity to control the transmission of that information. The physical/testimonial distinction in right-to-silence jurisprudence presupposes a flawed conception of mind/body dualism. Exposing this dualism reveals that the normative significance we confer to a suspect’s control over his thoughts against unwanted use by the government. The use of compelled neuroscientific evidence is illegitimate when it deprives the accused of control over her mental life. Prosecutors may not comment on a suspect’s decision to decline the testing, and judges should instruct jurors not to draw adverse inferences from a choice to decline testing. Instructions against drawing adverse inferences are likely to be effective, however, only if jurors come to recognize legitimate reasons to decline testing.

June 5, 2010 | Permalink | Comments (0)

Friday, June 4, 2010

"Extending Probation Sentence Without Proof Beyond a Reasonable Doubt?"

Eugene Volokh at The Volokh Conspiracy comments on the Eleventh Circuit's recent opinion in United States v. Cunningham. In part:

But what I don’t understand is how the judge could lawfully sentence Cunningham to a new probation term that extends past the end of the initial sentence. Under the original sentence, Cunningham was to be entirely free of criminal justice system supervision after 5 years, in April 2011 (two in prison and three on probation, with the probation revocable if he misbehaves). Yet under the sentence imposed at the revocation hearing, Cunningham would continue to be under criminal justice system supervision until April 2012 (June 2009 + 4 months in prison + 30 months on probation). 

June 4, 2010 | Permalink | Comments (0)

Lavitt on Decision Making by the OLC

Lavitt_joseph Joseph Lavitt  (lecturer, University of California, Berkeley - School of Law) has posted Professionalism and Power: Flawed Decision Making by the OLC Exposes a Bar that is Losing its Moxie (California Law Review Circuit, Vol. 1, p. 33, 2010) on SSRN. Here is the abstract:

In recent years, legal scholars and practitioners alike have expressed major misgivings about the advice that the Department of Justice’s Office of Legal Counsel (OLC) provided to former President George W. Bush following the attacks of September 11, 2001. On February 19, 2010, House Judiciary Committee Chairman John Conyers Jr. released internal communications of the Justice Department that uniformly and definitively discredit – in multiple and material aspects – the OLC’s now-infamous August 1, 2002, “torture memoranda”. The debate about what the OLC got wrong is over. It is time to consider what went wrong with the OLC.

June 4, 2010 | Permalink | Comments (0)

Thursday, June 3, 2010

Dempsey on Marshall and Duff's "Criminalization and Sharing Wrongs"

Dempsey michelle Michelle Madden Dempsey (Villanova University School of Law) has posted Sharing Reasons for Criminalization? No Thanks…Already Got ‘Em! on SSRN. Here is the abstract:

This short essay critiques Sandra Marshall and Antony Duff’s seminal work, “Criminalization and Sharing Wrongs,” by arguing that communities need not share in the wrongs done to particular victims in order to have standing to criminalize those who commit such wrongs.

June 3, 2010 | Permalink | Comments (1)

"More coverage of psychopathy censorship controversy"

This post at In the News canvasses the "controversy over Robert Hare's attempt to block publication of a peer-reviewed article critical of his psychopathy construct." The instrument is widely used by forensic psychologists in sexually violent predator cases. The original post setting forth the controversy is here. Hat tip: Michael Perlin.

June 3, 2010 | Permalink | Comments (1)

Wednesday, June 2, 2010

Allen on the Relative Plausibility Theory in Criminal Cases

Ronald J. Allen (Northwestern University Law School) has posted No Plausible Alternative to a Plausible Story of Guilt as the Rule of Decision in Criminal Cases (PROOF AND STANDARDS OF PROOF IN THE LAW, Juan Cruz, Larry Laudan, eds., 2010) on SSRN. Here is the abstract:

The relative plausibility theory is an explanatory account of juridical proof in Anglo-American court systems. Its central feature is that proof at trial is organized over competing stories advanced by the litigants, and that decision in civil cases is for the more plausible of the stories, or the more plausible of the set of stories, advanced by the parties as explanations of what occurred. If the fact finders construct their own explanation of what occurred, which is possible, nonetheless the explanation will be fashioned in light of the competing explanations offered by the parties, and essentially by definition will be the most plausible of the accounts considered by the fact finder. In criminal cases, fact finders find guilt if there is a plausible story of guilt and no plausible story of innocence; otherwise, they find innocence. The relative plausibility theory is an empirical rather than an evaluative account, and it is offered as an explanation of certain features of Anglo-American trials. Furthermore, it neither rests on nor entails any essentialist claims about the nature of law or reason. Both may be highly contingent, radically unstable, extremely mutable, and so on, without any effect on the soundness of the relative plausibility theory as an explanation of the present status of proof rules in, and the structure of, Anglo-American trials. Certain features of the relative plausibility theory are logical, however, suggesting some limits on the mutability of proof rules, and suggesting possible grounds for generalizing conclusions about systems of litigation designed to achieve accurate outcomes. Similarly, certain conceptions of rationality integral to the theory are probably common across western cultures, and perhaps across all human cultures, thus offering yet another universalizing tendency. Still, the local nature of the theory should be kept in mind, and perhaps those from other legal traditions can draw contrasts and comparisons between the Anglo-American approach and their own. This paper discusses these matters and then extends the relative plausibility theory to criminal cases.

June 2, 2010 | Permalink | Comments (0)

Gould & Leo on Wrongful Convictions

Leo richard Jon B. Gould and Richard A. Leo  (pictured) (George Mason University - School of Public Policy and University of San Francisco - School of Law) have posted One-hundred Years of Getting It Wrong? Wrongful Convictions After a Century of Research (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:

In this article the authors analyze a century of research on the causes and consequences of wrongful convictions in the American criminal justice system while explaining the many lessons of this body of work. This article chronicles the range of research that has been conducted on wrongful convictions; examines the common sources of error in the criminal justice system and their effects; suggests where additional research and attention are needed; and discusses methodological strategies for improving the quality of research on wrongful convictions. The authors argue that traditional sources of error (eyewitness misidentification, false confessions, perjured testimony, forensic error, tunnel vision, prosecutorial misconduct, ineffective assistance of counsel, etc.) are contributing sources, not exclusive causes, of wrongful conviction. They also argue that the research on wrongful convictions during the last hundred years has uncovered a great deal about how these sources operate and what might prevent their effects. Finally, the authors urge criminal justice professionals and policy-makers to take this research more seriously and apply the lessons learned from a century of research into wrongful convictions.

June 2, 2010 | Permalink | Comments (1)

Tuesday, June 1, 2010

Opinion limiting federal sex offender statute to those travelling in interstate commerce after effective date

Carr v. United States is here. Here is the syllabus:

Enacted in 2006, the Sex Offender Registration and Notification Act (SORNA) makes it a federal crime for, inter alia, any person (1) who “is required to register under [SORNA],” and (2) who “travels in interstate or foreign commerce,” to (3) “knowingly fai[l] to register or update a registration,” 18 U. S. C. §2250(a). Before SORNA’s enactment, petitioner Carr, a registered sex offender in Alabama, relocated to Indiana without complying with the latter State’s registration requirements. Carr was indicted under §2250 post-SORNA. The Federal District Court denied Carr’s motion to dismiss, which asserted that the §2250 prosecution would violate the Constitution’s Ex Post Facto Clause because he had traveled to Indiana before SORNA’s effective date. Carr then pleaded guilty and was sentenced to prison. Affirming the conviction, the Seventh Circuit held that §2250 does not require that a defendant’s travel postdate SORNA and that reliance on a defendant’s pre-SORNA travel poses no ex post facto problem so long as the defendant had a reasonable time to register post-SORNA but failed to do so, as had Carr.

Held: Section 2250 does not apply to sex offenders whose interstate travel occurred before SORNA’s effective date. Pp. 5–18.

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June 1, 2010 | Permalink | Comments (0)

Opinion rejecting Miranda claim

Berghuis v. Thompkins is here.  Here is the syllabus:

After advising respondent Thompkins of his rights, in full compliance with Miranda v. Arizona, 384 U. S. 436, Detective Helgert and another Michigan officer interrogated him about a shooting in which one victim died. At no point did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. He was largely silent during the 3-hour interrogation, but near the end, he answered “yes” when asked if he prayed to God to forgive him for the shooting. He moved to suppress his statements, claiming that he had invoked his Fifth Amendment right to remain silent, that he had not waived that right, and that his inculpatory statements were involuntary. The trial court denied the motion. At trial on first-degree murder and other charges, the prosecution called Eric Purifoy, who drove the van in which Thompkins and a third accomplice were riding at the time of the shooting, and who had been convicted of firearm offenses but acquitted of murder and assault. Thompkins’ defense was that Purifoy was the shooter. Purifoy testified that he did not see who fired the shots. During closing arguments, the prosecution suggested that Purifoy lied about not seeing the shooter and pondered whether Purifoy’s jury had made the right decision. Defense counsel did not ask the court to instruct the jury that it could consider evidence of the outcome of Purifoy’s trial only to assess his credibility, not to establish Thompkins’ guilt. The jury found Thompkins guilty, and he was sentenced to life in prison without parole. In denying his motion for a new trial, the trial court rejected as nonprejudicial his ineffective-assistance-of-counsel claim for failure to request a limiting instruction about the outcome of Purifoy’s trial. On appeal, the Michigan Court of Appeals rejected both Thompkins’ Miranda and his ineffective-assistance claims. The Federal District Court denied his subsequent habeas request, reasoning that Thompkins did not invoke his right to remain silent and was not coerced into making statements during the interrogation, and that it was not unreasonable, for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), see 28 U. S. C. §2254(d)(1), for the State Court of Appeals to determine that he had waived his right to remain silent. The Sixth Circuit reversed, holding that the state court was unreasonable in finding an implied waiver of Thompkins’ right to remain silent and in rejecting his ineffective-assistance-of-counsel claim.

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June 1, 2010 | Permalink | Comments (0)

Monday, May 31, 2010

Stern on Homes and the Fourth Amendment

Stern stephanie Stephanie Stern  (Chicago-Kent College of Law) has posted The Inviolate Home: Housing Exceptionalism in the Fourth Amendment (Cornell Law Review, Vol. 95, 2010)  on SSRN. Here is the abstract:

This Article challenges Fourth Amendment housing exceptionalism. Specifically, I critique two hallmarks of housing exceptionalism: first, the extension of protection to residential spaces unlikely to shelter intimate association or implicate other key privacy interests; and second, the prohibition of searches that impinge on core living spaces but do not harm interpersonal and domestic privacy. Contrary to claims in the case law and commentary, there is little evidence to support the broad territorial conception of privacy inherent to the “sanctity of the home,” a vital personhood interest in the physical home, or even uniformly robust subjective privacy expectations in varying residential contexts. Similarly, closer examination of the political and historical rationales for housing exceptionalism reveals a nuanced, and equivocal, view of common justifications for privileging the home. This Article advocates replacing the broad sweep of housing exceptionalism, and its emphasis on the physical home, with a narrower set of residential privacy interests that are more attentive to substantive privacy and intimate association.


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May 31, 2010 | Permalink | Comments (0)

Sunday, May 30, 2010

Top-Ten Recent SSRN Downloads

Ssrn logo are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 324 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 [2nd last week]
2 242 Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction
Margaret Colgate Love, Gabriel J. Chin,
Law Office of Margaret Love, University of Arizona James E. Rogers College of Law,
Date posted to database: April 16, 2010 [new to top ten]
3 218 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 [4th last week]
4 201 Is the Prohibition of Homicide Universal? Evidence from Comparative Criminal Law
John Mikhail,
Georgetown University - Law Center,
Date posted to database: March 23, 2010 [5th last week]
5 174 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 [7th last week]
6 169 Making the Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child Pornography Offenses
Jelani Jefferson Exum,
University of Kansas School of Law,
Date posted to database: March 12, 2010 [8th last week]
7 163 Criminal Justice at a Crossroads: Science-Dependent Prosecution and the Problem of Epistemic Contingency
Deborah Tuerkheimer,
DePaul University - College of Law,
Date posted to database: March 28, 2010 [9th last week]
8 158 The Easy Case for Products Liability: A Response to Professors Polinsky and Shavell
John C. P. Goldberg, Benjamin C. Zipursky,
Harvard Law School, Fordham University - School of Law,
Date posted to database: March 24, 2010 [10th last week]
9 151 Ex Ante Regulation of Computer Search and Seizure
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: March 22, 2010 [new to top ten]
10 151 Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws
Melissa Hamilton,
University of Toledo College of Law,
Date posted to database: April 5, 2010 [new to top ten]

May 30, 2010 | Permalink | Comments (0)

Luban on the Conscience of a Prosecutor

Luban david David J. Luban  (Georgetown University Law Center) has posted The Conscience of a Prosecutor (Valparaiso University Law Review, Forthcoming) on SSRN. Here is the abstract:

This essay, a version of the 2010 Tabor Lecture at Valparaiso Law School, examines issues about the role of a prosecutor in the adversary system through the lens of the following question: Should a prosecutor throw a case to avoid keeping men who he thinks are innocent in prison? This issue came to prominence in 2008, when Daniel Bibb, a New York City prosecutor, told newspaper reporters that he had done so in connection with a 1991 murder conviction that he had been assigned to reinvestigate after new evidence emerged that the wrong men had been convicted and were serving lengthy sentences. Bibb’s superiors required him (over his protests) to defend the convictions in a hearing to determine if the men should be retried. He had exhaustively reinvestigated the case, including interviews with reluctant witnesses who it seemed unlikely that anyone but Bibb could get to testify. This essay delves into the facts of the case and includes interview material with Daniel Bibb. It defends Bibb’s conduct, and argues that rather than facing professional discipline (as some ethics experts suggested), Bibb deserves praise. The essay uses the episode to examine the meaning of familiar adage that prosecutors must seek justice, not victory; the question of whether a subordinate lawyer in an organization must defer to the judgment of his or her superiors; and the role of conscience in legal ethics.

May 30, 2010 | Permalink | Comments (0)