CrimProf Blog

"Brady violations by DPS fingerprint examiners? Is fingerprint examination even science?"

An interesting post over at Grits for Breakfast. In part:

Mr. Strong described what happens when the first examiner finds a match but the verifying analyst doesn't agree. In such instances, he said, they notified their supervisor and all of them conferred to make a decision. A defense attorney in the crowd asked what seemed to me an obvious question: When two examiners originally disagreed but a supervisor resolved the issue in favor of a match, was that disagreement recorded in the final report? No, replied Strong, only the conclusion. At this, the audience began to murmur and fidget. Somebody from the back cried out, "Have you ever heard of Brady v. Maryland?," which is the US Supreme Court case requiring the state to turn over all exculpatory evidence to the defense  before trial. No he had not, replied a credulous Strong, a statement which elicited an audible gasp from the crowd.

Robinson on Mercy, Crime Control and Moral Credibility

Paul H. Robinson (University of Pennsylvania Law School) has posted Mercy, Crime Control & Moral Credibility on SSRN. Here is the abstract:

If, in the criminal justice context, "mercy" is defined as forgoing punishment that is deserved, then much of what passes for mercy is not. Giving only minor punishment to a first-time youthful offender, for example, might be seen as an exercise of mercy but in fact may be simply the application of standard blameworthiness principles, under which the offender's lack of maturity may dramatically reduce his blameworthiness for even a serious offense. Desert is a nuanced and rich concept that takes account of a wide variety of factors. The more a writer misperceives desert as wooden and objective, the more likely the writer is to mistake judgments of blamelessness for exercises of mercy.

Should a criminal justice system exercise mercy in its real sense (of giving an offender less punishment than he deserves, using a fully nuanced and rich account of desert)?

One can imagine enormous benefits to the exercise of mercy by individuals in their personal dealings with others. A tendency toward mercy seems an admirable personal trait. However, it does not follow that mercy would be a desirable practice for a criminal justice system. Our strong interest in equality of treatment of like offenders and offenses suggests that mercy, if used, would need to be regularized in its application; punishment ought not depend upon the tendency toward mercy, or lack thereof, of the particular decisionmaker in the case at hand. But to institutionalize mercy is to create an expectation and right to it that may be inconsistent with its fundamental character of giving a relief or mitigation from punishment to which an offender is not entitled.

Further, one can imagine serious effects detrimental to the effective operation of the criminal justice system were mercy to be institutionalized. Classic arguments against it would cite its effect in undermining deterrence and the incapacitation of dangerous offenders. While some of us might find these arguments unpersuasive, even the desert advocate would have reason to be concerned. A "mercy program" would seem to similarly undermine both deotological and empirical desert, failing to do justice both as moral philosophers and as the community's shared intuitions of justice would assess it.

On the other hand, what if it were determined – as recent research suggests – that community intuitions tend to support some exercise of what might be seen as mercy? If one sought to distribute criminal liability and punishment in a way to maximized the criminal law's moral credibility, might such evidence of principles of mercy shared by the community suggest that such principles ought to be instantiated in law?

Next week's crim law/procedure arguments

Issue summaries are from ScotusBlog, which also has links to briefs and opinions below:

Tuesday, Oct. 12

• Harrington v. Richter: (1) Did the Ninth Circuit err in finding that a lawyer provided ineffective assistance to a criminal defendant by declining to investigate or introduce expert testimony regarding certain blood stains? (2) Is a state court decision upholding a criminal conviction entitled to deference when challenged in a federal habeas proceeding if the state court issued a summary decision with no reasoning?
• Premo v. Moore: When a defendant has pleaded guilty, but later challenges his conviction on the ground that his lawyer should have moved to suppress his confession, is he entitled to habeas relief upon showing that his confession was coerced?

Wednesday, Oct. 13

• Skinner v. Switzer: When a convicted prisoner wishes to sue a state to obtain access to biological evidence for DNA testing, is he required to file a habeas petition or can he file a civil rights suit instead?

Audio of this week's U.S. Supreme Court oral arguments

The site is here. The plan is to update it every Friday with the arguments from that week.

"YouTube video on a search over a burned out taillight"

FourthAmendment.com links to this video that provides a good example of what happens when you try to stand on your rights, and also is a useful way to see if your students know what their rights are.

"High court delays execution of man said to be mentally deficient"

The story is at CNN.com:

The inmate's lawyers say he is mentally deficient, with an IQ of about 68. The high court has banned executions of the mentally deficient but has established no clear standard of determining who is in that category.

"Israeli Rape by Fraud Cases"

Eugene Volokh has this interesting post over at The Volokh Conspiracy providing an interesting contrast to the usual U.S. rule.

"Rights group claims France police illegally collecting Roma DNA"

Jurist has the story here. "French police may collect samples of genetic material from indicted individuals, though the organization contends that police have subjected the Roma to such procedures without being either arrested or charged."

Pinard on Collateral Consequences of Convictions

Michael Pinard (University of Maryland Law School) has published Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity at The Legal Workshop. An excerpt:

While collateral consequences have always accompanied criminal convictions in the United States, their impact expanded dramatically during the 1980s and 1990s as part of the War on Drugs. And while these consequences have long been considered an afterthought in the criminal justice system, they have recently garnered increased attention, in large part because of the record numbers of individuals—recently eclipsing 700,000 per year—now exiting U.S. correctional facilities and returing to communities across the country. As a result, reentry—or, more accurately, mass reentry—has reached a critical point in the United States. The numerous collateral consequences that attach to convictions frustrate reintegration for both individuals and whole communities.

"NPR’s “On Point” on the Rutgers Suicide, Cyberbullying, and Internet Crime Law"

Orin Kerr has this post at The Volokh Conspiracy, discussing his appearance on the show:

Interestingly, I was on the same radio program back in 2003 making philosophically similar points in a totally different context. Back then, the issue was the Patriot Act, and there was a lot of hysteria about government surveillance. On the show, I tried to counsel caution, focus on what was actually in the law, draw analogies to off-line conduct, and make sure we weren’t letting our fears get the best of us. (I join at the 16-minute mark.) Today, the issue was cyberbullying and a criminal case that has a lot of people very upset. On the show, I tried to counsel caution, focus on what facts were actually known, draw analogies to off-line conduct, and make sure we weren’t letting our passions get the best of us.

Jackson & Bradford on Police

Jonathan Jackson (pictured) and Ben Bradford  (London School of Economics & Political Science - Methodology Institute) have posted two manuscripts on SSRN: The first is Trust and Confidence in the Police: A Conceptual Review. Here is the abstract:

In Britain, public confidence in policing has become a short-hand for trust, legitimacy and consent. As such, the phrase tends to wrap up a set of inter-connected yet empirically and conceptually distinct notions. Yet it is important to unpack these distinct, albeit connected, ideas. At the very least we should differentiate between trust and confidence on the one hand, and legitimacy, compliance, cooperation and consent on the other hand. In this article we: (a) introduce the concept of trust and confidence in the police; (b) document historical trends in trust and confidence; and (c) outline the factors thought to influence public confidence. We aim throughout to highlight key ideas, studies and debates.

The second manuscript is Police Legitimacy: A Conceptual Review. Here is the abstract:

This paper reviews the concept of legitimacy applied to the British police. Particular attention is given to multi-dimensional definitions of legitimacy, as well as the implications of procedural justice theory in the formation of justified police action. The paper discusses some of the factors that may have shaped the trajectory of police legitimacy in the UK. It finishes with a commentary on the importance of the concept for crime-control policy.

 

Gray and Olive on foreign law and the Eighth Amendment

David C. Gray (pictured) (University of Maryland - School of Law) and Jessica M Olive have posted A Modest Appeal for Decent Respect (Federal Sentencing Reporter, Vol. 23, No. 1, p. 72, October 2010) on SSRN. Here is the abstract:

In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits imposing a sentence of life in prison without the possibility of release for nonhomicide crimes if the perpetrator was under the age of eighteen at the time of his offense. In so holding, Justice Kennedy cited foreign and international law to confirm the Court’s independent judgment. In his dissent, Justice Thomas recited now-familiar objections to the Court’s reliance on these sources. Those objections are grounded in his originalist jurisprudence. In this short invited essay, which expands on prior work, we argue that Justice Thomas should abandon these objections. That is because the Eighth Amendment’s prohibition on cruel and unusual punishment incorporates objective moral constraints rather than common public views held by Americans in 1792. While we acknowledge that courts asked to determine these objective constraints face a significant epistemic challenge. However, we suggest that the most reliable approach lies not with historical inquiry but with a method akin to that endorsed by Jürgen Habermas’s discourse ethics. In particular, to the extent that foreign, transnational, and international law addressing the cruelty of various punishment practices is the result of an inclusive process of open debate among those with an interest in the answer, we think that domestic courts are well-advised to follow Justice Kennedy’s example.

Argument transcript in Connick v. Thompson

is here.

"Judge Bars Major Witness From Civilian Terrorism Trial"

The New York Times has the story:

Minutes before a major terrorism trial was about to begin, a federal judge barred prosecutors in Manhattan on Wednesday from using a key witness.

The government had acknowledged it learned about the witness from the defendant, Ahmed Khalfan Ghailani, while he was being interrogated while being held in a secret overseas jail run by the C.I.A.

. . .

[Defense counsel] had argued that their client was tortured while in C.I.A. custody, and that any statements he made or evidence derived from those statements was tainted and should be inadmissible.

"Hearing on “Reining in Overcriminalization: Assessing the Problems, Proposing Solutions”"

Ellen Podgor at White Collar Crime Prof Blog has this post about a recent hearing before the House Judiciary Committee, Subcommittee of Crime, Terrorism and Homeland Security.

"Potent new report about prosecutorial misconduct in California"

Doug Berman at Sentencing Law and Policy excerpts this article from the National Law Journal headlined "Prosecutorial Misconduct Is Rarely Punished, Says New Study."

The report, issued by the Northern California Innocence Project at Santa Clara University School of Law, found 707 cases between 1997 and 2009 in which courts explicitly determined that prosecutors had committed misconduct. It examined more than 4,000 cases.

Among the 707 cases, only six prosecutors -- 0.8% -- were disciplined by the State Bar of California. Only 10 of the 4,741 disciplinary actions by the state bar during the same period involved prosecutors....

The report is available here.

Argument transcript in Michigan v. Bryant

is here.

Joh on DNA Theft

Elizabeth E. Joh  (U.C. Davis School of Law) has posted DNA Theft: Recognizing the Crime of Nonconsensual Genetic Collection and Testing (Boston University Law Review, Vol. 91, 2011) on SSRN. Here is the abstract:

The fact that you leave genetic information behind on the discarded tissues, used coffee cups, and smoked cigarettes everywhere you go is generally of little consequence. The trouble arises when third parties are interested in retrieving this detritus of everyday life for the genetic information you’ve left behind. These third parties may be the police, and the regulation over their ability to collect this evidence is unclear.

And the police aren't the only people who are curious about your genetic information. Whether the victims are celebrities, private persons with secrets to keep, or just the targets of nosy third parties with bad intentions, if someone wants to collect and analyze another person's DNA without consent, they can do so. Committing DNA theft is as easy a sending in a used tissue to a company contacted over the internet, and waiting for an analysis by email. A quick on-line search reveals many companies that offer "secret" or "discreet" DNA testing. The rapid proliferation of companies offering direct-to-consumer genetic testing at ever lower prices means that both the technology and motives exist for DNA theft.

Yet in nearly every American jurisdiction, DNA theft is not a crime. Rather, the nonconsensual collection and analysis of another person's DNA is virtually unconstrained by law. This article explains how DNA theft poses a serious threat to genetic privacy and why it merits consideration as a distinct criminal offense.

Argument transcript in Abbott v. United States

is here.

Choo on Self-Incrimination and Human Rights

Andrew Choo (University of Warwick - School of Law) has posted Compelling the Provision of Information: The Privilege Against Self-Incrimination as a Human Right on SSRN. Here is the abstract:

This chapter considers aspects of the privilege against self-incrimination. The privilege is often represented in the case law of England and Wales as a principle of fundamental importance in the law of criminal procedure and evidence. While a consideration of the privilege within the confines of a chapter must necessarily be selective, the operation of the privilege in England and Wales provides excellent fodder for examining the influence of human rights norms on an evidential principle. This chapter will ask whether it is clear from the relevant case law what the potential scope of the privilege is, and, relatedly, how the privilege might be justified. In particular, it seeks to explore, with reference to pre-existing documents and bodily samples, the application of the much-quoted statement of the European Court of Human Rights that the privilege does not apply to material ‘which has an existence independent of the will of the suspect’.