CrimProf Blog

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

Saturday, August 28, 2010

Laurin on Herring and the Exclusionary Rule

Laurin_jennifer 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.

August 28, 2010 | Permalink | Comments (0)

Friday, August 27, 2010

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.

August 27, 2010 | Permalink | Comments (0)


Balkin jack 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.

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August 27, 2010 | Permalink | Comments (0)

Thursday, August 26, 2010

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.

August 26, 2010 | Permalink | Comments (0)

"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.

August 26, 2010 | Permalink | Comments (0)

When does a burglary end?

Martin shaun 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.

August 26, 2010 | Permalink | Comments (0)

Ramsey on Domestic Violence and State Intervention

Ramsey carolyn 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.

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August 26, 2010 | Permalink | Comments (0)

Wednesday, August 25, 2010

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

This story is on Prison Planet (hat tip: 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.

August 25, 2010 | Permalink | Comments (0)

"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.

August 25, 2010 | Permalink | Comments (0)

Beale on Honest Services

Beale sara sun 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.

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August 25, 2010 | Permalink | Comments (0)

Tuesday, August 24, 2010

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

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

August 24, 2010 | Permalink | Comments (0)

"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.

August 24, 2010 | Permalink | Comments (0)

Slobogin on Empirical Desert

Slobogin_big 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.

August 24, 2010 | Permalink | Comments (0)

"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.

August 24, 2010 | Permalink | Comments (0)

Monday, August 23, 2010

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.

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August 23, 2010 | Permalink | Comments (0)

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

Miller colin 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.

August 23, 2010 | Permalink | Comments (0)

Sunday, August 22, 2010

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).

August 22, 2010 | Permalink | Comments (1)

Top-Ten Recent SSRN Downloads

Ssrn logo 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

August 22, 2010 | Permalink | Comments (0)