CrimProf Blog

Audio of Supreme Court arguments

Among others, Orin Kerr at The Volokh Conspiracy noted the Court's new policy of posting audio of all oral arguments on the Friday of the week in which the cases are argued, in addition to providing a written transcript on the day of argument:

I would guess that releasing the audio at the end of the week is a compromise designed to satisfy the Supreme Court geeks while minimizing the risk that the mainstream press will use the clips to report on the Court’s work. For law geeks, the transcript will tide us over until Friday when we can load the mp3s on our iPods for a weekend listen. For radio and TV reporters, on the other hand, the delay from an argument in the beginning or middle of the week until the audio is released on Friday will be so long that the clips won’t be nearly as newsworthy by the time they are posted.

This week's criminal law and procedure arguments

Issue summaries from ScotusBlog:

Today

• Abbott v. US; Gould v. US: A federal statute requires an additional five-year sentence for using a gun during certain drug trafficking crimes or crimes of violence, unless another statute provides a higher minimum sentence. (1) Does the five-year addition apply when the underlying drug trafficking offense or crime of violence carries a mandatory minimum sentence of more than five years? (2) Does it apply when the defendant was convicted for a separate offense, arising from the same incident, that carries a minimum sentence of more than five years?

Tuesday

• Michigan v. Bryant: The Sixth Amendment generally requires prosecutors to present testimonial evidence through live testimony at trial. Do statements made by a wounded crime victim to police officers about the perpetrator constitute such testimonial evidence, or can the police officer testify at trial about what the victim said?

Wednesday

• Connick v. Thompson: Can a prosecutor’s office be held liable for the illegal conduct of one of its prosecutors, on the theory that the office failed to adequately train its employees, when there has been only one violation resulting from that deficient training?

Scheck on Professional and Conviction Integrity Programs

Barry Scheck  (Benjamin N. Cardozo School of Law) has posted Professional and Conviction Integrity Programs: Why We Need Them, Why They Will Work, and Models for Creating Them (Cardozo Law Review, Vol. 31, No. 6, 2010) on SSRN. Here is the abstract:

The best way to effectively prevent Brady violations and other forms of prosecutorial misconduct that cause wrongful convictions is nternal regulation of the District Attorney’s office. Civil liability, state or bar disciplinary action, the stigma of appellate reversal, and the threat of criminal prosecution have failed to provide effective deterrence against Brady violations as well as other forms of misconduct. However, the lack of alternatives is not the reason why internal regulation is the most promising way to prevent Brady violations, but rather because prosecutors themselves are in the best position to implement procedures that achieve this goal.

Prosecutorial offices, and the criminal justice system as a whole, can learn important lessons from recent reforms adopted by the medical profession to improve safety. Specifically, several organizational principles and practical remedies developed by the groundbreaking National Academies of Science study on improving hospital safety, To Err Is Human, can be readily transferred to the prosecutor’s office.

The Pareto principle, a staple of quality assurance theorists, holds that eighty percent of effects result from twenty percent of causes and, therefore, quality management resources should be focused on correcting this twenty percent of causes. Recognizing there is little empirical data on the causes of Brady violations, and in accordance with Pareto’s principle, this Article conducts a “thought experiment” that postulates and then analyzes the top three causes of Brady violations: (1) The Brady material was not in the prosecutor’s file because the police did not provide it in written form to the prosecutor working on the case; (2) The Brady material was in the prosecution’s file, or known to the prosecutor from an oral communication, but the prosecution did not identify it as Brady and, therefore, did not turn it over to the defense; and (3) The prosecutor did not turn over to the defense information that he or she knew or strongly suspected could be Brady material out of fear.

What emerges from this analysis of the top three causes are concrete suggestions for setting up a Professional Integrity Program within a prosecutor’s office that can identify, correct, and prevent Brady violations. The Professional Integrity Program features the use of pre-trial and post-indictment checklists and disclosure conferences, the non-punitive tracking of errors and “near misses,” the development of clear office-wide legal definitions of Brady material, the administration of audits and root cause analysis in reversal and harmless error cases, and the creation of simulation exercises for training staff that builds on the lessons learned from “near misses” and audits. A Conviction Integrity Program to investigate plausible postconviction claims of innocence is also proposed that draws upon the ethical principles enunciated in ABA Model Rule of Professional Conduct 3.8. It also draws upon “best practices” for co-operative, non-adversarial post-conviction innocence investigations employed by projects within the Innocence Network with the Dallas District Attorney and other district attorney offices. Finally, a model and organizational chart for the implementation of a Professional and Conviction Integrity Program are presented and discussed.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	202	Palestine and the International Criminal Court: Asking the Right Question Michael G. Kearney, London School of Economics & Political Science (LSE) - Department of Law, Date posted to database: July 3, 2010 [3rd last week]
2	165	The Diplomacy of Universal Jurisdiction: The Regulating Role of the Political Branches in the Transnational Prosecution of International Crimes Maximo Langer, University of California, Los Angeles (UCLA) - School of Law, Date posted to database: August 19, 2010 [new to top ten]
3	164	Cracked Mirror: SB1070 and Other State Regulation of Immigration through Criminal Law Gabriel J. Chin, Marc L. Miller, University of Arizona James E. Rogers College of Law, University of Arizona - James E. Rogers College of Law, Date posted to database: July 26, 2010 [4th last week]
4	154	Selected Salient Evidentiary Issues in Employment Discrimination Cases Lynn McLain, University of Baltimore School of Law, Date posted to database: July 12, 2010 [5th last week]
5	150	An e-SOS for Cyberspace Duncan B. Hollis, Temple University - James E. Beasley School of Law, Date posted to database: September 3, 2010 [7th last week]
6	149	Statistical Knowledge Deconstructed Kenneth W. Simons, Boston University - School of Law, Date posted to database: September 7, 2010
7	130	Fourth Amendment Pragmatism Daniel J. Solove, George Washington University Law School, Date posted to database: August 27, 2010 [10th last week]
8	115	Some Reflections on Ethics and Plea Bargaining: An Essay in Honor of Fred Zacharias Michael Cassidy, Boston College Law School, Date posted to database: August 9, 2010 [9th last week]
9	109	Rethinking Proportionality Under the Cruel and Unusual Punishments Clause John F. Stinneford, University of Florida Levin College of Law, Date posted to database: August 20, 2010 [new to top ten]
10	109	What Might Retributive Justice Be? Dan Markel, Florida State University College of Law, Date posted to database: September 4, 2010 [new to top ten]