CrimProf Blog

Laurin on Herring and the Exclusionary Rule

Jennifer E. Laurin (University of Texas) has posted Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence on SSRN. Here is the abstract:

The Supreme Court’s 2009 decision in Herring v. United States has prompted both criticism and puzzlement concerning the source, meaning, and implications of the new culpability-based framework that it announced for the Fourth Amendment exclusionary rule. This Article proposes that Herring may be better understood not solely by reference to the exclusionary rule precedents to which the majority opinion claims fidelity, but rather in the context of the important and largely unexamined influence that constitutional tort doctrine has had in shaping exclusionary rule jurisprudence. That influence has been driven by the interrelated processes of borrowing and convergence – the former, a deliberate tactic employed when the Court in United States v. Leon drew from qualified immunity jurisprudence to define the contours of the exclusionary rule’s good faith exception; the latter, a gradual and progressive effect of that initial borrowing, whereby first the good faith exception, and eventually other areas of exclusionary rule doctrine, have increasingly drawn from and grown aligned with constitutional tort doctrine.

The Article identifies and traces these dynamics of borrowing and convergence in the arena of the exclusionary rule, illuminating the specific mix of historical contingency, adjudicatory pragmatism, and, perhaps most interestingly, tactical considerations that drove the influence of constitutional tort doctrine on the exclusionary rule generally, in Herring more specifically. This examination affords greater understanding of the source, contours, and likely trajectory of the exclusionary rule framework that Herring enunciates. Moreover, close examination of borrowing and convergence in this particular context provides a basis for mapping a more systematic understanding of why and how disparate strands of doctrine come to cross-fertilize – in the particular realm of criminal procedure, in the broader arena of constitutional remedies, and in the law more generally. The story of these dynamics in the exclusionary rule context offers a largely cautionary tale of the risks that convergence poses to substantive legal standards as well as jurisprudential values such as transparency, particularly in constitutional remedial jurisprudence.

The Blagojevich Watch

Jurist updates the situation: Prosecutors will retry the former Illinois governor, convicted on just one of 24 counts, but will drop charges against his brother, alleged to have been involved in attempting to sell President Obama's vacated Senate seat.

THE CONSTITUTION IN 2020: THE FUTURE OF CRIMINAL JUSTICE

That's the title of the conference at Florida State on Oct. 7-8, co-sponsored by FSU and the American Constitution Society. Keynote address Thursday evening, Oct. 7, by Steve Bright of the Southern Center for Human Rights; Friday's opening remarks are by Jack Balkin (Yale) (pictured). The symposium is "dedicated to an exploration of current and future developments in crime control and equality, punishment and the Constitution, national security and liberty, and citizenship and community." The proceedings will be available by streaming video. Details are here. The panels and the excellent array of speakers follow the jump.

Thursday, October 7 Evening Event:

Keynote Address by Steve Bright, Southern Center for Human Rights

Friday, October 8 Morning Events:

Opening Remarks by Professor Jack Balkin, Yale Law School

Panel One - National Security and Liberty:

Jack Balkin, Yale Law School

John Parry, Lewis & Clark Law School

Deborah Pearlstein, Princeton University Woodrow Wilson School of Public and International Affairs

Marc Rotenberg, Electronic Privacy Information Center

Chris Slobogin, Vanderbilt University Law School

Panel Two - Crime Control and Equality:

Susan Bandes, DePaul University College of Law/Florida State University College of Law

Darryl Brown, University of Virginia School of Law

Song Richardson, DePaul University College of Law

David Sklansky, UC Berkeley School of Law

 

Friday, October 8 Afternoon Events:

Panel Three - Punishment and the Constitution:

Doug Berman, The Ohio State University Moritz College of Law

Sharon Dolovich, UCLA School of Law

Reid Fontaine, Florida State University College of Law

Dan Markel, Florida State University College of Law

 

Panel Four - Citizenship and Community:

Jack Chin, University of Arizona College of Law

Bernard Harcourt, University of Chicago Law School

Wayne Logan, Florida State University College of Law

Richard Myers, UNC School of Law

Kerr on applying the Fourth Amendment to the internet

Orin Kerr (George Washington) has published Applying the Fourth Amendment to the Internet: A General Approach at The Legal Workshop. It is based on his article of the same name in the Stanford Law Review. The beginning:

This Article proposes a general approach to applying the Fourth Amendment to the Internet. It assumes that courts will try to apply the Fourth Amendment to the Internet so that the Fourth Amendment has the same basic function online that it has offline. The Article reaches two major conclusions. First, Fourth Amendment protections online should depend on whether the data is content or non-content information. The contents of communications, like e-mail and remotely stored files, ordinarily should be protected. On the other hand, non-content information, such as IP addresses and e-mail addresses, ordinarily should not be protected. Second, courts should ordinarily require a search warrant if the government seeks to obtain the contents of protected Internet communications. Further, the scope of warrants should be based on individual users rather than individual accounts.

"Switzerland activists withdraw from campaign to reinstate death penalty"

Jurist has the story.

The advocacy group did not give a reason for its sudden withdrawal from the campaign, though it continues to argue that the Swiss criminal justice system hurts victims by failing to adequately punish those convicted of serious crimes. On Tuesday, the Swiss government set a six-month deadline for the group to accumulate at least 100,000 signatures in support of the measure in order to force a national popular vote. . . . Capital punishment was abolished from Switzerland's criminal code in 1942 and remained part of the country's military laws until 1992. The last military execution, however, took place in 1944.

When does a burglary end?

My colleague, Shaun Martin, raises this question over at California Appellate Report, in connection with this intermediate state appellate decision applying the felony-murder rule. Defendant was driving away from the scene of his burglary, and no one was in pursuit, but he saw a police car, though (erroneously) that the officer knew about the crime, and hit the accelerator, ultimately leading to an accident and death. Held, over a dissent: the felony-murder rule applies.

Ramsey on Domestic Violence and State Intervention

Carolyn B. Ramsey  (University of Colorado Law School) has posted Domestic Violence and State Intervention in the American West and Australia, 1860-1930
(Indiana Law Journal, Vol. 86, 2011) on SSRN. Here is the abstract:

This article calls into question stereotypical assumptions about the presumed lack of state intervention in the family and the patriarchal violence of Anglo-American frontier societies in the late nineteenth and early twentieth centuries. By analyzing previously unexamined cases of domestic assault and homicide in the American West and Australia, Professor Ramsey reveals a sustained (but largely ineffectual) effort to civilize men by punishing violence against women. Husbands in both the American West and Australia were routinely arrested or summoned to court for beating their wives in the late 1800s and early 1900s. Judges, police officers, journalists, and others expressed dismay over domestic assaults. However, legal authorities struggled with the dilemma of how to deter batterers whose victims were reluctant to prosecute. To be sure, the state’s response was not as aggressive as under modern mandatory arrest laws and no-drop prosecution policies. Yet the “why didn’t she leave?” question actually may have seemed easier to answer in the late 1800s and early 1900s than it did later in the twentieth century. Due to the failure of the state to prevent recidivist domestic violence, juries and even judges often deemed the actions of women who killed their abusive husbands wholly or partially justified. In contrast, husbands who killed their wives tended to be convicted of murder because their crimes violated the ideal of the “respectable family man” that was vital to the efforts of both the American West and Australia to project a civilized image.

This article makes three contributions. First, it presents a complex and surprising picture of gender relations in the American West and Australia by showing that men punished other men for physically attacking their wives and that there was greater public concern about violent marriages than scholars have realized. Second, it documents the criminal prosecution of wife-beaters and wife-killers on two continents during a seventy-year period, which indicates that this was not just an isolated peak of intervention in a long history of apathy toward domestic violence. Third, Professor Ramsey shows that scholarly emphasis on women’s insanity claims has obscured the extent to which female defendants successfully raised self-defense arguments to obtain acquittal or mitigation in intimate-partner murder cases. The justification of abused women’s use of deadly force acknowledged the desperate circumstances they faced in societies that condemned domestic violence, but had neither succeeded in deterring it, nor provided victims with adequate escape routes.

"4th Amendment Violating Mobile X-Ray Scanners Hit The Streets"

This story is on Prison Planet (hat tip: FourthAmendment.com) and includes a neat picture. Here's the lead:

As we warned at the beginning of the year, X-ray body scanners currently being used and abused in airports across the world are set to hit the streets as American Science & Engineering reveals that “more than 500 backscatter x-ray scanners mounted in vans that can be driven past neighboring vehicles to see their contents” have been sold to government agencies.

"Innocence claim rejected: Troy Davis loses challenge"

Doug Berman at Sentencing Law and Policy excerpts this post by Lyle Denniston at ScotusBlog discussing the upshot of last summer's Supreme Court order.

Beale on Honest Services

Sara Sun Beale  (Duke University - School of Law) has posted An Honest Services Debate (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

This commentary employs a fictional debate to explore the issues raised by the Supreme Court’s decision in Skilling v. United States, 130 S. Ct. 2896 (2010), which dramatically cut back on “honest services” prosecutions under the mail and wire fraud statutes. In response to an earlier decision by the Supreme Court reading these statutes narrowly, Congress enacted 18 U.S.C. § 1346, which extends mail and wire fraud to schemes to deprive another of “the intangible right of honest services.” In 2009 the Supreme Court granted certiorari in three cases presenting questions concerning the “honest services” provision. One of the cases involved the indictment of state legislator who failed to disclose he was seeking employment from a large corporation while voting on legislation affecting the company. The other cases involved honest services convictions for deception and self dealing in the private sector by news magnate Conrad Black and former Enron CEO Jeffrey Skilling, whose false statements about the Enron’s financial situation propped up its stock price as it careened towards collapse.

The Court issued only one opinion on the merits, in Skilling. In an opinion written by Justice Ginsburg, six members of the Court rejected the claim that § 1346 is void for vagueness but construed the statute to be limited to bribes and kickbacks, which it found had comprised the “lion’s share” of the honest services prosecutions. The Court did not resolve – or even discuss – the other questions on which it had granted certiorari: whether a state law violation or economic harm or private gain were necessary elements (though bribery and kickbacks by their nature involve gain to the defendant). Justice Scalia (writing for himself and two other justices) wrote separately to argue that § 1346 is unconstitutionally vague.

I use the debate form to critique the Skilling opinion and explore a variety of issues raised by honest services prosecutions: (1) the federalism issues raised by the prosecution of state and local government officials, (2) the potential for overlap and conflict between broad conceptions of mail fraud and other federal and state regulatory systems, (3) the proper boundaries of criminal law and the problem of overcriminalization, and (4) the largely unregulated prosecutorial discretion that results from broadly drafted criminal statutes.

Remarkably, the Court failed to engage or even acknowledge those issues, except to the extent they were necessarily part of its assumption that absent a limiting interpretation § 1346 would have been unconstitutionally vague. Precisely because the Court did not engage these concerns, the Skilling opinion prompted me to explore other issues that are less often the focus of criminal law scholarship: the doctrine of constitutional avoidance, the standards governing facial versus as-applied challenges, the proper methodology for interpreting statutes, and institutional concerns regarding the federal judiciary and its relationship to the other branches of government. Although these issues have generally been seen as the province of scholars specializing in constitutional law, federal courts, legislation, and public choice theory, the debate concludes that they should be a more important role in criminal law scholarship.

"L.A. has rare weekend with no killings"

Sad news and happy news all in one L.A. Times headline:

"The Bad Parent Defense"

Kent Scheidegger has this post at Crime and Consequences on "the single most popular way to argue against the death penalty," excerpting a newspaper account of a prisoner's recorded statement disclaiming his attorney's effort to present such a defense.

Slobogin on Empirical Desert

Christopher Slobogin  (Vanderbilt Law School) has posted Some Hypotheses About Empirical Desert (Arizona State Law Journal, Forthcoming) on SSRN. Here is the abstract:

Paul Robinson has written a series of articles advocating the view that empirical desert should govern development of criminal law doctrine. The central contention of empirical desert is that adherence to societal views of “justice” – defined in terms of moral blameworthiness – will not only satisfy retributive urges, but will also often be as efficacious at controlling crime as a system that revolves around other utilitarian purposes of punishment. Constructing criminal laws that implement empirical desert has the latter effect, Robinson argues, because it enhances the moral credibility of the law, thus minimizing citizens’ desire to engage in vigilantism and other forms of non-compliance and increasing their willingness to accept controversial government decisions to criminalize or de-criminalize. In keeping with the utilitarian spirit of Robinson’s agenda, the main goal of this paper is to propose hypotheses (ten in all) that test possible vulnerabilities of his argument. Robinson’s work on empirical desert is provocative, but requires further empirical support.

"Plotting Doubted in WikiLeaks Case"

The New York Times has this story:

STOCKHOLM — Although Swedish prosecutors have yet to complete their review of sexual abuse accusations that two Stockholm women made last week against Julian Assange, founder of the WikiLeaks Web site, those who say they have detailed knowledge of the case discount conspiracy theories linking it to efforts to discredit WikiLeaks.

Mr. Assange had suggested over the weekend that the tortured sequence of events at the Stockholm prosecutor’s office had been prompted by the Pentagon as part of what he called a program of “dirty tricks to ruin us.” The prosecutors had issued a warrant for Mr. Assange’s arrest on suspicion of rape on Friday night, which was followed within 24 hours by the cancellation of the warrant and a formal retraction of the implication that a rape had occurred.

Fersko on Anonymous Juries

Seth A. Fersko has posted United States v. Wecht: When Anonymous Juries, the Right of Access, and Judicial Discretion Collide (Seton Hall Law Review, Vol. 40, No. 763, 2010) on SSRN. Here is the abstract:

The United States was a young country in 1807 when proceedings began in Aaron Burr's treason trial. The former vice president sat accused of treason for allegedly conspiring to wage war against the United States. By all accounts, the trial was such a spectacle that the country had not seen anything like it before, even during the colonial period. Although newspapers at the time virtually ignored the courts, the Burr trial “captivated the American public's attention,” and the newspapers happily obliged the public's interest. The news reports were so invasive and the editorials were so provocative that Burr alleged that the coverage prejudiced the jury against him. Acknowledging that some jurors might have formed opinions, Chief Justice John Marshall, serving as the trial judge, instructed the jury to remain open to the evidence and witness testimony. Despite the prejudicial media coverage, the jury acquitted Burr of treason.

Since 1807, courts have occasionally witnessed high public interest in criminal trials. In the early 1920s, the newspapers and public carefully followed the Sacco and Vanzetti arrests and murder trial. The media coverage continued throughout the defendants' appeals and right up to their execution. Reporters even tracked down the original jurors from the trial--seven years after the guilty verdicts--to ask whether, in hindsight, they thought that the trial was fair. The intensity and pervasiveness of the media's trial coverage, however, took on a new character in the 1950s with the advent of television and the growth of broadcast news.

The justice system witnessed one of the first modern media frenzies in the 1954 murder trial of Dr. Samuel Sheppard. The prosecution accused Dr. Sheppard, a “handsome, 30-year-old” doctor from an Ohio suburb, of brutally murdering his pregnant, thirty-one-year-old wife. The press's daily trial coverage included "[a]bout fifty reporters from newspapers, news services, radio and television networks, with perhaps twenty still and movie camera men . . . swarmed over the court house. . . . Except [for] eight or ten seats in the last row, all places in the court room not occupied by participants and attendants [were] filled by the press. Not only were critics concerned about the fairness of the process to Dr. Sheppard, the trial also raised serious questions about the privacy of jurors because of the pervasive media coverage."

During the years following the Sheppard trial and Dr. Sheppard's appeal to the Supreme Court of the United States in Sheppard v. Maxwell, the legal community recognized the need to address how the media covers high-profile trials and the negative influence excessive media coverage can have on the trial itself. Congress also embraced the idea of greater judicial discretion and control over criminal proceedings. As a result, district courts have relied on case law, statutes, and their inherent judicial authority to address intense media coverage, including withholding jurors' identities from the public by using anonymous juries. In contrast, because of the media's First Amendment right of access and the inherent benefits of public trials and media scrutiny, the Supreme Court has voiced concern over excessive judicial measures that close proceedings from the public eye. For these reasons, in 1986, the Supreme Court adopted the “experience and logic” test. The “experience and logic” test seeks a balance between too much and too little public access under the First Amendment by instructing courts when proceedings must be open or may be closed.

Courts determine whether the “experience and logic” test weighs in favor of a First Amendment right of access by examining both the historical openness of the proceeding and the benefits and detriments of public access. If a First Amendment right attaches, then a presumption of openness applies. A court can close a proceeding and overcome this presumption only when detailed, case-specific findings reveal the necessity of closure. On the other hand, when the First Amendment does not attach, the courts need not overcome a constitutional burden to close the proceedings. Thus, courts have far greater discretion and control over the trial process when a First Amendment right does not attach because they do not need to overcome a constitutional presumption of openness.

The “experience and logic” test and the stability it achieves have worked well, but the U.S. Court of Appeals for the Third Circuit upset the status quo in United States v. Wecht ( Wecht II). In Wecht II, the Third Circuit held that the media has a First Amendment right of access to the names and addresses of prospective jurors. Yet legal tradition and policy considerations weigh against the Third Circuit's holding under the “experience and logic” test.

If Wecht II endures, district judges will lose a significant amount of discretion over the jury-selection process and will no longer control when or how the court releases prospective jurors' identities to the public in high-profile trials. Instead of using their inherent and statutory discretion, courts would first need to rebut a strong, constitutional presumption--rather than a common-law presumption--that the jurors' identities are publicly available. By making it more difficult for the district courts to exercise their discretion during jury selection, Wecht II ignores the history that led to the “experience and logic” test and the delicate policy balance that the Supreme Court and Congress achieved.

This Comment contends that, under the “experience and logic” test, the First Amendment does not apply to prospective jurors' identities during jury selection. Therefore, the First Amendment does not require that courts disclose prospective jurors' identities to the public when the parties have not finished jury selection in a high-profile case that lacks safety concerns. Part II of this Comment introduces the concept of the anonymous jury and the source of the district judge's authority to empanel an anonymous jury. Part II also presents the constitutional issues raised by an anonymous jury and the current case law addressing those issues. Part III discusses the unprecedented decision in Wecht II, which creates a constitutional right to obtain the identities of prospective jurors. Part IV analyzes the ways in which the Wecht II court misapplied the “experience and logic” test. Part IV also evaluates the potential effects of Wecht II and how, if followed, it might substantially affect the balance achieved between media-access concerns and concerns for juror privacy and systemic integrity.

Miller on Allowing Defendants to Present Evidence They Rejected Favorable Plea Bargains

Colin Miller  (John Marshall Law School) has posted Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence that They Rejected Favorable Plea Bargains. Here is the abstract:

Federal Rule of Evidence 410 deems inadmissible statements made during plea discussions when offered “against the defendant who made the plea or was a participant in plea discussions…” Pursuant to the Supreme Court’s opinion in United States v. Mezzanatto, however, prosecutors can, and often do, force defendants to waive the protections of this Rule to get to the plea bargaining table. Conversely, courts categorically have found that defendants cannot present evidence that they rejected favorable plea bargains, despite the plain language of the Rule not precluding the admission of such evidence.

This article addresses the question of whether courts can consistently allow prosecutors to present defendants’ incriminatory statements made during plea discussions while precluding those same defendants from presenting evidence that they rejected favorable plea bargains. It concludes that courts cannot prevent defendants from presenting evidence that they rejected favorable plea bargains based upon Mezzanatto and that none of the arguments against admissibility hold water.

Southwest Criminal Law Conference Aug. 27-28 in Colorado

Sessions, to be held at the University of Colorado and Denver University, will address topics such as "Reasonable Rape"; "Search and Seizure in a Post 9/11 World"; "Racial Profiling"; "National Security, Civil Liberties, and the War on Terror"; and the Arizona immigration law; Further information is available from Carolyn Ramsey (Colorado) or Sam Kamin (Denver).

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	2705	A Legal Labyrinth: Issues Raised by Arizona Senate Bill 1070 Gabriel J. Chin, Carissa Byrne Hessick, Toni M. Massaro, Marc L. Miller, University of Arizona James E. Rogers College of Law, Arizona State, Sandra Day O'Connor College of Law, University of Arizona College of Law, University of Arizona - James E. Rogers College of Law, Date posted to database: May 29, 2010
2	199	Broken Lives from Broken Windows: The Hidden Costs of Aggressive Ordermaintenance Policing Babe Howell, CUNY School of Law, Date posted to database: May 18, 2010 [3rd last week]
3	181	Palestine and the International Criminal Court: Asking the Right Question Michael G. Kearney, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: July 3, 2010 [new to top ten]
4	138	More Different than Life, Less Different than Death William W. Berry, University of Mississippi School of Law, Date posted to database: May 25, 2010 [9th last week]
5	136	Those Who Can't, Teach: What the Legal Career of John Yoo Tells Us About Who Should be Teaching Law Lawrence Rosenthal, Chapman University - School of Law, Date posted to database: June 27, 2010 [6th last week]
6	131	Status as Punishment: A Critical Guide to Padilla v. Kentucky Gabriel J. Chin, Margaret Colgate Love, University of Arizona James E. Rogers College of Law, Law Office of Margaret Love, Date posted to database: July 10, 2010 [4th last week]
7	125	Selected Salient Evidentiary Issues in Employment Discrimination Cases Lynn McLain, University of Baltimore School of Law, Date posted to database: July 12, 2010 [new to top ten]
8	108	One-hundred Years of Getting It Wrong? Wrongful Convictions After a Century of Research Jon B. Gould, Richard A. Leo, George Mason University - School of Public Policy, University of San Francisco - School of Law, Date posted to database: May 27, 2010 [5th last week]
9	94	Reconsidering Reprisals Michael A. Newton, Vanderbilt University - Law School, Date posted to database: June 9, 2010 [7th last week]
10	94	Therapeutic Jurisprudence and its Application to Criminal Justice Research and Development David B. Wexler, University of Puerto Rico - School of Law, Date posted to database: June 23, 2010