CrimProf Blog

Heller & Dubber on Comparative Criminal Law

Kevin Jon Heller and Markus D. Dubber (pictured) (Melbourne Law School and University of Toronto - Faculty of Law) have posted Introduction: Comparative Criminal Law (THE HANDBOOK OF COMPARATIVE CRIMINAL LAW, Kevin Heller & Markus Dubber, eds., Stanford University Press, 2010) on SSRN. Here is the abstract:

This essay provides an introductory overview of the project of comparative criminal law in general and of the contributions to the Handbook of Comparative Criminal Law in particular, highlighting common themes, conceptual frameworks, and opportunities for further comparative analysis.

Medwed on Prosecutorial Disclosure of Exculpatory Evidence

Daniel S. Medwed  (University of Utah - S.J. Quinney College of Law) has posted Brady's Bunch of Flaws (Washington and Lee Law Review, Vol. 67, No. 1533, 2010) on SSRN. Here is the abstract:

The 1970s television program The Brady Bunch provided a lighthearted and optimistic portrayal of American family life. A divorced man with three brown-haired boys married a divorced woman with three blonde daughters. They melded together into a happy, well-adjusted crew committed to mad-cap adventures accompanied by syrupy background music. Yet the promise of The Brady Bunch was illusory. Divorce has wreaked havoc on this country. The problems that derive from divorce and remarriage are multifaceted; they seldom lend themselves to tidy resolution in thirty minutes, let alone a lifetime. The show provided a distraction - and a disservice. It sent an inaccurate message about the world to legions of children suffering the painful consequences of divorce in their own families.

In some respects, The Brady Bunch television show resembles the federal constitutional doctrine requiring that prosecutors disclose exculpatory evidence to defendants in criminal cases under Brady v. Maryland. The Supreme Court’s Brady decision in 1963 offered hope that prosecutors can successfully straddle the fence between their two principal responsibilities: to serve simultaneously as zealous advocates and neutral “ministers of justice.” By turning over all evidence that exculpates the accused, prosecutors advance the cause of justice; by retaining all other items of evidence, they safeguard and promote their advocacy role. Brady represented a marriage of two somewhat disparate images of the prosecutorial function. But in the ensuing half-century the ideals of Brady have not gained much traction in practice. Even worse, the doctrine as presently constituted may provide a disservice to the very concept of justice. This Essay examines this state of affairs and puts forth some potential solutions.

Hartley on Public Housing and Crime

Daniel A. Hartley (Federal Reserve Banks - Federal Reserve Bank of Cleveland) has posted Blowing it Up and Knocking it Down: The Effect of Demolishing High Concentration Public Housing on Crime on SSRN. Here is the abstract:

Despite popular accounts that link public housing demolitions to spatial redistribution of crime, and possible increases in crime, little systematic research has analyzed the neighborhood or citywide impact of demolitions on crime. In Chicago, which has conducted the largest public housing demolition program in the United States, I find that public housing demolitions are associated with a 10 percent to 20 percent reduction in murder, assault, and robbery in neighborhoods where the demolitions occurred. Furthermore, violent crime rates fell by about the same amount in neighborhoods that received the most displaced public housing households relative to neighborhoods that received fewer displaced public housing households, during the period when these developments were being demolished. This suggests violent crime was not simply displaced from the neighborhoods where demolitions occurred to neighborhoods that received the former public housing residents. However, it is impossible to know what would have happened to violent crime in the receiving neighborhoods had the demolitions not occurred. Finally, using a panel of cities that demolished public housing, I find that the mean public housing demolition is associated with a drop of about 3 percent in a city’s murder rate and about 2 percent in a city’s assault rate. I interpret these findings as evidence that while public housing demolitions may push crime into other parts of a city, crime reductions in neighborhoods where public housing is demolished are larger than crime increases in other neighborhoods. A caveat is that while the citywide reduction in the assault rate appears to be permanent, the citywide reduction in murder rate seems to last for only a few years.

Featured Download: Seidman on Hyper-Incarceration

Louis Michael Seidman  (Georgetown University Law Center) turns his considerable skills toward the biggest problem in criminal justice in his recent draft, Hyper-Incarceration and Strategies of Disruption: Is There a Way Out? Here is the abstract:

This paper explores exit strategies from our policy of hyper-incarceration. On the theory that the underlying causes of the policy are firmly entrenched, it focuses instead on disrupting the political micro-processes that make the policy seem acceptable. Part One describes these micro-processes. Parts Two through Four outline three forms of politics that might disrupt them: a politics of amelioration, a politics of transformation, and a politics of accommodation. Part V assesses the available choices for what is to be done.

Well worth reading!

KC

International Wrongful Conviction Conference April 7-10 at Cincinnati

From the website for the conference:

The Innocence Network and the Ohio Innocence Project at the University of Cincinnati College of Law will host the first-ever conference dedicated to exploring the phenomenon of wrongful conviction of the innocent in the international arena.  This groundbreaking event will take place at the Freedom Center in downtown Cincinnati, a beautiful facility on the Ohio River dedicated to promoting freedom around the world and telling the stories of freedom’s heroes.  The objective of the conference will be to bring selected scholars, lawyers and exonerees from around the world together in one place to interact and learn from one another.  The hope is that the conference will initiate the process of galvanizing the innocence movement into a unified international human rights movement.

A list of some of the topics to be covered follows the jump.

 

 ·         NAS Report Aftermath: Litigation and Education Update

 ·         Exoneree Meet and Greet with Guest Inspirational Speaker

 ·         International Perspectives on the Adversarial and Inquisitorial  Systems of Justice:  The Roles of Judges, Prosecutors, Defense Attorneys, and the Impact of System Structure on Wrongful Convictions

 ·         How to Start an Innocence Network Organization

 ·         Case Screening: Non-DNA Cases

 ·         Financial Planning After Compensation:  Blessings and Pitfalls

 ·         Introduction to Post-Conviction DNA Testing

 ·         Judicial Perspectives on DNA Testing Requests and Actual Innocence Claims

 ·         How Innocence Network Organizations Can Better Help Their Clients after Release

 ·         The Potential Role of International Human Rights Laws and NGOs in  Fighting Wrongful Convictions and Furthering the Innocence Movement Globally

 ·         International Wrongful Conviction Experiences:  Exonerees from  England, Japan, Mexico and Nicaragua Share their Stories

 ·         How to Handle Case Failures Professionally and Personally (Closed;  Advanced Sign-Up Required)

 ·         Investigation Techniques

 ·         Juror Study

 ·         Media Training (Closed Session; Advanced Sign-Up Required)

 ·         Federal Habeas Corpus:  Timelines and Pitfalls

 ·         Discussion on Successes and Challenges of Starting an Innocence Network Project Outside of U.S.

 ·         Case Screening:  Using DNA in Complicated Cases

 ·         Dealing with Sleepless Nights:  Handling the Stress of Innocence  Work (Closed Session; Advanced Sign-Up Required)

 ·         Dealing With Wrongful Conviction and Release:  A Psychiatric Perspective

 ·         Policy Reform Presentation from IP Policy Department to International Guests; Q&A

 ·         Advanced Topics in DNA

 ·         Scholar’s Workshop

 ·         What Can the Network Do to Assist Innocence Efforts Outside the  U.S.?:  International Delegates and Board of Directors Meet to Discuss Cooperation and Networking Going Forward

 ·         Plenary Update and Training (Ethics and Best Practices, Membership, and Training on the  New Intranet Site)

Wexler & King on Rehabilitation and Therapeutic Jurisprudence

David B. Wexler (pictured) and Michael S. King  (University of Puerto Rico - School of Law and Monash University - Faculty of Law) have posted Promoting Societal and Juridical Receptivity to Rehabilitation: The Role of Therapeutic Jurisprudence on SSRN. Here is the abstract:

This paper is a chapter in a forthcoming book to be published by the Organization of American States (OAS). As part of its drug "demand reduction" effort, the OAS is interested in Drug Treatment Courts in particular, and in therapeutic jurisprudence more generally. Our chapter looks to how jurisdictions may use the therapeutic jurisprudence (TJ) approach to create a societal and juridical atmosphere more conducive to the establishment of Drug Treatment Courts. The chapter notes, however, that under a "problem solving" philosophy, many drug courts have become somewhat coercive and paternalistic, departing from the principles of therapeutic jurisprudence. We discuss the TJ principles and urge a "solution-focused" approach to judging, more in line with TJ notions, and based on procedural fairness, active client involvement and participation, close attention to client strengths, and other concepts that place the client at center stage of the therapeutic effort.

Rich on the Philosophy of Snitching

Michael Rich (Elon University School of Law) has posted A Snitch, Not a Hero: Philosophical Lessons of Loyalty and Disloyalty in the World of Criminal Informants on SSRN. Here is the abstract:

Without informants, policing as we know it would grind to a halt. In the arenas of drug enforcement and the battle against organized crime, the majority of prosecutions hinge on confidential informants, and informants are increasingly central in white collar crime prosecutions and anti-terrorism investigations. Yet society, to put it bluntly, hates informants. The epithets used to describe them – “snitch,” “rat,” “weasel” – suggest the reason: the informant, by assisting the police, is guilty of betrayal. But identifying the reason for society’s disdain raises more questions than it answers. For instance, are all informants disloyal, or are only some? Are there governing principles that explain which informants are deemed to be disloyal? To whom are informants disloyal? What import does informant disloyalty have beyond the social stigma that informants bear? And these questions matter because betrayal, in the words of George Fletcher, is “one of the basic sins of our civilization.” Yet, they have largely escaped the attention of legal scholars.

This Article remedies this oversight first by discussing the role of informants through the lens of the observations that philosophers have made about loyalty and disloyalty. The discussion reveals that loyalty and disloyalty are social constructs of normative expectations arising out of special relationships between individuals and other individuals or groups. And when an individual breaches these normative expectations, she commits disloyalty or betrayal. The Article applies these observations about loyalty and disloyalty to three informant situations. The first is the “typical” case of an accomplice-informant who assists police in apprehending and prosecuting her partners in crime. The second is that of communities with particularized norms against cooperating with the police, as exemplified by the “Stop Snitching” movement that has made significant headway in high-crime communities. The third situation is that of informants in “mainstream” society. The loyalty analysis of these three situations reveals interesting insights into why police have trouble obtaining civilian cooperation in high-crime communities and the limits of civilian identification with police objective in mainstream society. Finally, the Article considers these insights in light of existing scholarship about the relationship between civilian perceptions of police and willingness to cooperate. This consideration leads to a handful of policy proposals to enhance civilian cooperation with law enforcement and ultimately to the recognition that some level of reticence to cooperate with police, particularly in marginalized communities, is both inevitable and desirable.

Berkowski on the Admissibility of Grand Jury Testimony Against the Government

Brandon Berkowski has posted Federal Rule of Evidence 804(b)(1)'s 'Similar Motive' Test and the Admissibility of Grand Jury Testimony against the Government (Fordham Law Review, Vol. 79, No. 3, 2010) on SSRN. Here is the abstract:

This Note examines the "similar motive" test of Federal Rule of Evidence 804(b)(1) as applied to grand jury testimony offered against the government. Rule 804(b)(1) admits an unavailable witness's prior testimony hearsay when its opponent had a "motive" to develop it at the previous proceeding that was "similar" to the motive its opponent would have at trial. However, the U.S. Courts of Appeals have differed in their interpretation of the rule's "similar motive" language with respect to the factors that judges should consider in the admissibility analysis for grand jury testimony offered against the government. This Note examines the development and purpose of the prior testimony hearsay exception as well as recent circuit court cases that have applied Rule 804(b)(1) to grand jury testimony offered against the government. It argues that certain factors commonly considered by courts - primarily prosecutors' strategic use of grand jury questioning - are beyond the scope of Rule 804(b)(1) and should not influence the "similar motive" inquiry. This Note proposes an admissibility test for exculpatory grand jury testimony that avoids consideration of these factors.

Moriarty on the NAS Report on Forensic Science

Jane Campbell Moriarty (University of Akron School of Law) has posted Will History Be Servitude?: The NAS Report on Forensic Science and the Role of the Judiciary (Utah Law Review, Vol. 2010, No. 2, 2010) on SSRN. Here is the abstract:

For several decades, the prosecution and its witnesses have maintained that despite little research and virtually no standards, they can match a fingerprint, handwriting, bullet and bullet cartridge, hair, dental imprint, footprint, tire track, or even a lip print to its unique source (collectively, "individualization evidence"). Not only can they match it, they claim, they can do so often without any error rate.

In the last few decades, with the help of lawyers and academics, litigants have challenged the underlying reliability of individualization evidence. Scholars in various disciplines have written about the startling state of individualization evidence, including its lack of standards, research, and established error rates, and its failure to rely upon statistical probabilities to estimate the likelihood of a match. Since its inception, the Innocence Project has exonerated more than 250 people, a majority of whose convictions have involved inaccurate or even fraudulent forensic science testimony, including individualization evidence.

Despite the lack of proof that such evidence is scientifically reliable (and continued exculpations), courts have rejected most challenges to individualization evidence and continue to admit such testimony. With every exoneration, proof mounts that forensic science cannot do what it claims to be able to do with the precision alleged. By not requiring minimal standards for the reliability of individualization evidence, courts have allowed the forensic science system to operate without any checks and balances and to convict innocent people in numbers we can only estimate.

In February 2009, the National Academy of Sciences issued its long-awaited and groundbreaking report on the status of forensic science, Strengthening Forensic Science in the United States: A Path Forward ("the NAS Report"). The NAS Report is a scathing indictment of both the state of the forensic science system and judicial rulings on such individualization evidence.

This Article discusses the findings of the NAS Report, relevant cases that predate the report, and some cases decided since the report. It posits that the judiciary, which has created a standard of reliability, has failed to hold prosecutorial expert evidence to that standard. Using examples from history and modern cognitive science explanations, the Article tries to explain why the judiciary has been so unwilling to rigorously examine forensic science evidence and urges the judiciary to rethink its perspective going forward.

While the NAS Report suggests an overhaul of the current system, that overhaul is a contentious idea that may well not occur in the near (or even longer) future. Thus, a current crisis exists that the judiciary must address in its day-to-day decision making. The Article suggests how the judiciary can become a more effective crucible for testing the strength and limitations of forensic science.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	351	The Facade of FCPA Enforcement Mike Koehler, Butler University College of Business, Date posted to database: November 9, 2010
2	307	Good Faith, New Law, and the Scope of the Exclusionary Rule Orin S. Kerr, George Washington University - Law School, Date posted to database: September 11, 2010
3	293	The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law Alina Das, New York University School of Law Immigrant Rights Clinic, Date posted to database: October 17, 2010
4	248	Vagueness and the Guidance of Action Jeremy Waldron, New York University (NYU) - School of Law, Date posted to database: October 31, 2010
5	237	Post Padilla: Padilla’s Puzzles for Review in State and Federal Courts Nancy J. King, Gray Proctor, Vanderbilt University - Law School, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: November 11, 2010
6	198	The Efficacy of Severe Child Pornography Sentencing: Empirical Validity or Political Rhetoric? Melissa Hamilton, University of South Carolina - School of Law, Date posted to database: October 11, 2010 [7th last week]
7	190	Jury 2.0 Caren Myers Morrison, Georgia State University - College of Law, Date posted to database: September 1, 2010 [9th last week]
8	186	Talking About Prosecutors Alafair S. Burke, Hofstra University - School of Law, Date posted to database: September 24, 2010 [10th last week]
9	186	Is the Rome Statute Binding on Individuals? (And Why We Should Care) Marko Milanovic, University of Nottingham School of Law, Date posted to database: October 12, 2010 [8th last week]
10	172	Theorizing Mental Health Courts E. Lea Johnston, University of Florida - Fredric G. Levin College of Law, Date posted to database: November 21, 2010 [new to top ten]