CrimProf Blog

Chin on Videotaped Forensic Interviews in Child Sex Abuse Cases

Kimberly Y. Chin has posted 'Minute and Separate': Considering the Admissibility of Videotaped Forensic Interviews in Child Sexual Abuse Cases after Crawford and Davis (Boston College Third World Law Journal, Vol. 30, No. 1, 2010) on SSRN. Here is the abstract:

Child sexual abuse is one of the least prosecuted crimes in the United States in part because of the many evidentiary challenges prosecutors face. In 2004, the Supreme Court introduced a new standard for determining the admissibility of out-of-court statements made by declarants who are unavailable to testify at trial. In Crawford v. Washington, the Supreme Court held that testimonial statements are only admissible at trial if the declarant is unavailable to testify and there was a prior opportunity for cross-examination. This Note will examine Crawford’s impact on the admissibility of videotaped forensic interviews with child victims of sexual abuse and suggest that courts adopt a “minute and separate” approach when deciding whether statements contained in those interviews are testimonial in nature.

Robinson on Coercive Indoctrination and "Rotten Social Background"

Paul H. Robinson (University of Pennsylvania Law School) has posted Are We Responsible for Who We Are? The Challenge for Criminal Law Theory in the Defenses of Coercive Indoctrination and ‘Rotten Social Background’ on SSRN. Here is the abstract:

Should coercive indoctrination or “rotten social background” be a defense to crime? Traditional desert-based excuse theory roundly rejects these defenses because the offender lacks cognitive or control dysfunction at the time of the offense. The standard coercive crime-control strategies of optimizing general deterrence or incapacitation of the dangerous similarly reject such defenses. Recognition of such defenses would tend to undermine, perhaps quite seriously, deterrence and incapacitation goals. Finally, the normative crime-control principle of empirical desert might support such an excuse, but only if the community’s shared intuitions of justice support it. The law’s rejection of such defenses suggests that there might be little popular support for them.

This is not necessarily the end of the story, however. Coercive indoctrination has in some cases, such as that of POW Richard Tenneson, prompted considerable public sympathy, confirming that lay persons do tend to exculpate some such offenders. Such intuitive support for a coercive indoctrination defense suggests that there may be practical crime-control value in having the criminal law recognize it. If the criminal law can build its reputation as a reliable moral authority with the community it governs, it can harness the potentially powerful forces of social and normative influence.

There are good arguments for seeing “rotten social background” as a form of coercive indoctrination and, thus, for considering it too for a defense under such a newly-created doctrine. However, while the two defenses may be analogous, having a “rotten social background” by itself is not likely to meet the minimum prerequisites that logically would adhere to a coercive indoctrination defense, and certainly would have little intuitive support. On the other hand, specific cases of “rotten social background” might well qualify, if it is shown that that experience forced upon the person a set of beliefs and values compelling him toward the offence that he could not reasonably have been expected to resist.

Pardo & Patterson on Neuroscience and Retributivism

Michael S. Pardo (pictured) and Dennis Patterson (University of Alabama School of Law and European University Institute) have posted Neuroscientific Challenges to Retributivism (THE FUTURE OF PUNISHMENT, Thomas Nadelhoffer, ed., Oxford University Press, Forthcoming) on SSRN. Here is the abstract:

We examine two recent challenges to retribution-based justifications for criminal punishment based on neuroscientific evidence. The first seeks to undermine retributivism because of the brain activity of subjects engaged in punishment decisions for retributive (as opposed to consequentialist) reasons. This challenge proceeds by linking retributivism with deontological moral theories and the brain activity correlated with deontological moral judgments. The second challenge seeks to undermine retributivism by exposing, through neuroscientific information, the purportedly implausible foundation on which retributivism depends: one based on free will and folk psychology.

We conclude that neither challenge succeeds. The first challenge fails, in part, because the brain activity of punishers does not provide the appropriate criteria for whether judgments regarding criminal punishment are justified or correct. Moreover, retributivism does not necessarily depend on the success or failure of any particular moral theory. The second challenge fails because neuroscience does not undermine the conceptions of free will or folk psychology on which retributivism depends. Along the way, we point out a number of faulty inferences and problematic assumptions and presuppositions involved in these challenges to retributivism.

Jacobi on the Law and Economics of the Exclusionary Rule

Tonja Jacobi (Northwestern University - School of Law) has posted The Law and Economics of the Exclusionary Rule on SSRN. Here is the abstract:

The exclusionary rule is premised on behavioral assumptions about how the law shapes police conduct. Using a law and economics approach, this Article draws out the implications of these assumptions. It shows: first, that in attempting to deter police violations, the rule actually encourages police harassment of ordinary citizens, particularly minorities; and second, when applied at trial, the rule decreases the benefit of the doubt that defendants who are most likely to be actually innocent can receive. Judicial attempts to mitigate these costs of the exclusionary rule in fact exacerbate them. The manifold jurisprudential rules that make up this area of law can be assessed in terms of the extent each effectively differentiates between the guilty and the innocent. Assessed in this way, it becomes clear that much of the secondary jurisprudence in search and seizure law further aggravates the problem.

Green on Prosecutors' Ethical Duty of Disclosure

Bruce A. Green (Fordham University School of Law) has posted Prosecutors’ Ethical Duty of Disclosure: In Memory of Fred Zacharias (San Diego Law Review, Forthcoming) on SSRN. Here is the abstract:

ABA Model Rule 3.8(d) establishes an ethical duty on the part of criminal prosecutors to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused.” A 2009 opinion issued by the ABA’s ethics committee concluded that the rule does not simply restate prosecutors’ disclosure obligation under Brady v. Maryland, but requires prosecutors to disclose favorable evidence as soon as reasonably practicable without regard to the materiality of the information. In contrast, the Ohio Supreme Court held in 2010 that prosecutors’ ethical duty under Ohio’s version of Rule 3.8(d) was no more extensive than their legal obligation. This essay, written in memory of Fred Zacharias and drawing on his scholarship, examines these conflicting visions of prosecutors’ ethical duty. It argues that the two bodies had differing conceptions of the rule – to adopt Professor Zacharias’s terminology – as either a rule of role or an integrity rule. The essay concludes that the different visions may each be justified, but that even so, the inconsistency is not ideal and has implications for the processes by which ethics rules are drafted and adopted.

Argument transcript in witness tampering case

The case is Fowler v. United States.

Cert dismissed in case involving pre-existing identity documents found as result of Fourth Amendment violation

The case is Tolentino v. New York.

Opinion on section 1983 liability for failure to train on Brady obligations

The case is Connick v. Thompson. Here is the syllabus:

Petitioner the Orleans Parish District Attorney’s Office concedes that, in prosecuting respondent Thompson for attempted armed robbery, prosecutors violated Brady v. Maryland, 373 U. S. 83, by failing to disclose a crime lab report. Because of his robbery conviction, Thompson elected not to testify at his later murder trial and wasconvicted. A month before his scheduled execution, the lab report was discovered. A reviewing court vacated both convictions, and Thompson was found not guilty in a retrial on the murder charge. He then filed suit against the district attorney’s office under 42 U. S. C. §1983, alleging, inter alia, that the Brady violation was caused by the office’s deliberate indifference to an obvious need to train prosecutors to avoid such constitutional violations. The district court held that, to prove deliberate indifference, Thompson did not need to show a pattern of similar Brady violations when he could demonstrate that the need for training was obvious. The jury found the district attorney’s office liable for failure to train and awarded Thompson damages. The Fifth Circuit affirmed by an equally divided court.

Held: A district attorney’s office may not be held liable under §1983 for failure to train its prosecutors based on a single Brady violation. Pp. 6–20.

(a) Plaintiffs seeking to impose §1983 liability on local governments ust prove that their injury was caused by “action pursuant to official municipal policy,” which includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so ersistent and widespread as to practically have the force of law. Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 691. A local government’s decision not to train certain employees about their legal duty to avoid violating citizens’ rights may rise to the level of an official government policy for §1983 purposes, but the failure to train must amount to “deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.” Canton v. Harris, 489 U. S. 378, 388. Deliberate indifference in this context requires proof that city policymakers disregarded the “known or obvious consequence” that a particular omission in their training program would cause city employees to violate citizens’ constitutional rights. Board of Comm’rs of Bryan Cty. v. Brown, 520 U. S. 397, 410. Pp. 6–9.

(b) A pattern of similar constitutional violations by untrained employees is “ordinarily necessary” to demonstrate deliberate indifference. Bryan Cty., supra, at 409. Without notice that a course of training is deficient, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights. Thompson does not contend that he proved a pattern of similar Brady violations, and four reversals by Louisiana courts for dissimilar Brady violations in the 10 years before the robbery trial could not have put the district attorney’s office on notice of the need for specific training. Pp. 9–10.

(c) Thompson mistakenly relies on the “single-incident” liability hypothesized in Canton, contending that the Brady violation in his case was the “obvious” consequence of failing to provide specific Brady training and that this “obviousness” showing can substitute for the pattern of violations ordinarily necessary to establish municipal culpability. In Canton, the Court theorized that if a city armed its police force and deployed them into the public to capture fleeing felons without training the officers in the constitutional limitation on the use of deadly force, the failure to train could reflect the city’s deliberate indifference to the highly predictable consequence, namely, violations of constitutional rights. Failure to train prosecutors in their Brady obligations does not fall within the narrow range of Canton’s hypothesized single-incident liability. The obvious need for specific legal training present in Canton’s scenario—police academy applicants are unlikely to be familiar with constitutional constraints on deadly force and, absent training, cannot obtain that knowledge—isabsent here. Attorneys are trained in the law and equipped with the tools to interpret and apply legal principles, understand constitutional limits, and exercise legal judgment. They receive training before entering the profession, must usually satisfy continuing education requirements, often train on the job with more experienced attorneys, and must satisfy licensing standards and ongoing ethical obligations. Prosecutors not only are equipped but are ethically bound to know what Brady entails and to perform legal research when they are uncertain. Thus, recurring constitutional violations are not the “obvious consequence” of failing to provide prosecutors with formal in-house training. The nuance of the allegedly necessary training also distinguishes the case from the example in Canton. Here, the prosecutors were familiar with the general Brady rule. Thus, Thompson cannot rely on the lack of an ability to cope with constitutional situations that underlies the Canton hypothetical, but must assert that prosecutors were not trained about particular Brady evidence or the specific scenario related to the violation in his case. That sort of nuance simply cannot support an inference of deliberate indifference here. Contrary to the holding below, it does not follow that, because Brady has gray areas and some Brady decisions are difficult, prosecutors will so obviously make wrong decisions that failing to train them amounts, as it must, to “a decision by the city itself to violate the Constitution.” Canton, 489 U. S., at 395 (O’Connor, J., concurring in part and dissenting in part). Pp. 11–19.

578 F. 3d 293, reversed.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and ALITO, JJ., joined. SCALIA, J., filed a concurring opinion, in which ALITO, J., joined. GINSBURG, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

Slobogin & Fondacaro on Juvenile Justice in Flux

Christopher Slobogin (pictured) and Mark R. Fondacaro, J.D., Ph.D. (Vanderbilt Law School and John Jay College - CUNY) have posted Juvenile Justice in Flux (JUVENILES AT RISK: A PLEA FOR PREVENTIVE JUSTICE, Oxford University Press, Forthcoming) on SSRN. Here is the abstract:

The current approach to the juvenile crime problem is insufficiently conceptualized and too beholden to myths about youth, the crimes they commit, and effective means of responding to their problems. The currently dominant punitive approach to juvenile justice, modeled on the adult criminal justice system, either ignores or misapplies current knowledge about the causes of juvenile crime and the means of reducing it. We argue that, with some significant adjustments that take this new knowledge into account, the legal system should continue to maintain a separate juvenile court, but one that is preventive in orientation, with a new emphasis on both rehabilitation and flexible procedures. The view that culpability should be the linchpin of juvenile justice (touted by liberals as well as conservatives) is misguided, not only because it leads to unnecessarily harsh punishment but also because it deemphasizes crime-reducing interventions and undermines the case for handling adolescent offenders through a system that is independent of the culpability-based adult system. The currently popular view that adult-type procedures should govern the juvenile process is also open to serious doubt, given social science research that questions the extent to which such procedures promote accuracy and fairness. Chapter 1, which elaborates on the book’s thesis, is provided here.

Risinger & Risinger on Innocence and Criminal Procedure

D. Michael Risinger (pictured) and Lesley C. Risinger (both of Seton Hall University School of Law) have posted Innocence is Different: Taking Innocence into Account in Reforming Criminal Procedure (New York Law School Law Review, Vol. 56, No. 3, 2011) on SSRN. Here is the abstract:

It has often been said that "death is different," meaning at a minimum that the ultimate finality of the death penalty requires both special standards for its imposition and special care in applying those standards. But what has generally been overlooked is that "innocence is different" also. What we mean by this is that the protection of the actually innocent from conviction should be a paramount goal of the criminal justice system against which all procedural rules and policies should be judged. Despite the traditional rhetoric that recognizes this, too often the protection of the innocent takes a back seat to other goals, such as the conviction of the guilty - or even, ironically, the protection of the guilty.

In the project of which this paper is the first part, we attempt an overview of what an "innocentric" system would look like, and what changes would be required to reform our current practices to come as close to such a system as possible. We approach this task with eyes open. In criminal procedure, most individual reforms, even the ones that should be least controversial, predictably face stiff opposition from one constituency or another that sees the reform as a lost advantage, or at least sees no advantage in the reform. Police and prosecutors may fear the loss of current practices which they perceive as useful for convicting those whom they believe to be guilty. The defense bar may fear that some reforms will bring new disadvantages to the majority of their clients (the factually guilty ones) for the benefit of the innocent minority. Those whose main interest is in the root-and-branch abolition of capital punishment may fear that some reforms will derail such abolition efforts, as concerns about the execution of the factually innocent are reduced. Those whose main focus is giving crime victims "closure" may fear that some of the reforms may banish public fury from the trial of guilt in ways that disappoint the desires of victims. Judges, who by definition have been successful players under the current system, may indulge the well-known human tendency to believe that the system in which they have been personally successful has virtues beyond those it appears to have when subjected to critical analysis. Lawyers in general may indulge the quite common romantic notion that "our adversary system" is already the best of all possible worlds, reinforced by the Burkean notion that the unintended consequences of changing institutions hallowed by long practice are likely to be worse than simply pursuing business as usual.

We will deal with such concerns as we judge they may arise in regard to any given change espoused. But in general, we think it appropriate at the outset to call on the members of all these "stakeholder" groups (as they appear to be called today) to recognize the special claims of another stakeholder group, that is, the convicted innocent (including the innocent who will be convicted if the proposed reforms are not undertaken). We call upon all constituencies to realize consciously and explicitly that, whatever other concerns are at stake, "innocence is different."

Having said this, we want to make clear that we are not asserting that conviction of the factually innocent must be avoided at all possible costs whatsoever. We realize that the only way to accomplish this in a human system that must deal with a high volume of individual crimes would be to quit convicting anyone at all. This would obviously result in too high a price to pay, and impose the costs of resulting uncontrolled crime on yet other innocents in society. However, we believe that all of the reforms we recommend in this article would result either in no costs in terms of lost convictions, or (at the most) only in losses of convictions that were epistemically indefensible anyway, in that the convictions were only randomly right. In addition, we believe that many of the reforms we recommend would in fact lead both to fewer convictions of the innocent and to more convictions of the guilty.

Many of the structural reforms we embrace have been suggested before in one form or another, but not, we believe, in the form and combination that we have put forth. In making our suggestions, we have tried to retain the epistemic strengths to be derived from structured adversarialism, while using police restructuring and judicial oversight to eliminate the practical monopoly of information currently enjoyed by the police and prosecution at least up to the point a charge is made, which practical monopoly is the very antithesis of real adversarialism. In addition, one suggested reform of note, which we believe is totally original to this paper, involves seeing mugshot viewings by eyewitnesses as "trawl searches," subject to all of the dangers of such searches looking for cold hits in databases, and more, since the random match probability for a face under the conditions of the mugshot trawl is currently unknown.

Wood, Burris et al on Police Interventions with Persons Affected by Mental Illness

Jennifer Wood , Jeffrey W. Swanson , Scott Burris (pictured) and Allison Gilbert (Temple University , Duke University - Department of Psychiatry & Behavioral Sciences , Temple University - James E. Beasley School of Law and Duke University) have posted Monograph: 'Police Interventions with Persons Affected by Mental Illnesses' on SSRN. Here is the abstract:

Mental illnesses and substance abuse disorders constitute a global public health problem of enormous proportions. Developing and implementing cost-effective interventions to improve the lives of people with mental illnesses and comorbid substance abuse disorders remains a challenge for multiple, interfacing service systems, from public health to social welfare to law enforcement, the courts, and corrections.

This monograph illuminates one key component of these systems, policing, highlighting the role of police officers as front-line workers in the community. We examine trends in thinking and practice and common challenges surrounding policing and mental illnesses internationally. We suggest that police organizations (and their community and research partners) should not be uncritically accepting of existing intervention models without first engaging in a ‘Problem-Oriented Policing’ approach, designed so that available resources inter-lock to address the problems identified in particular geographical areas. We also examine challenges associated with implementing these steps, such as the need for police, health practitioners, and academic partners to collaborate in developing better and more integrated data collection systems to track health-related outcomes. Such extensive analysis, we argue, is fundamental to the development of tailored police interventions for persons affected by mental illnesses.

"Davis innocence plea rejected"

From ScotusBlog:

The Supreme Court, without a noted dissent, on Monday cleared the way for the state of Georgia to carry out the execution of Troy Anthony Davis of Savannah, rejecting five different ways that Davis’s lawyers had sought to press his claim that he did not commit a 1989 murder of an off-duty policeman.   In three brief orders, none of which contained any explanation, the Court brought to a sudden end a two-decades-long campaign to spare Davis’s life, on the theories that most of those who testified against him have recanted and that another man did the killing, and has since admitted it.

. . .

The Davis case is one of the most highly visible cases amid scores of them in recent years, claiming wrongful convictions, especially in murder cases.  The most unusual fact of the Davis case was that, for the first time in nearly a half-century, the Supreme Court itself explicitly ordered a federal judge to go over the evidence to test Davis’s claim that he did not commit the crime that occurred in the parking lot of a fast-food restaurant and bus station in Savannah on the night of August 19, 1989.

. . .

In turning aside all legal requests, the Court bypassed a chance to answer two fundamental questions that the Court has never answered explicitly about convicted individuals’ claims of innocence: one, whether the Constitution bars the execution of an individual who is actually innocent of the crime, and, two, what standard of proof are federal judges to use in judging whether an individual actually is innocent.   In Judge Moore’s decision, he ruled that it would be unconstitutional to execute someone who is actually innocent, but set a fairly tough standard of proof; applying that standard, he found that Davis is not innocent.  On Monday, that decision became final.

Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	482	An Equilibrium-Adjustment Theory of the Fourth Amendment Orin S. Kerr, George Washington University - Law School, Date posted to database: January 26, 2011
2	419	Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force Robert Chesney, University of Texas School of Law, Date posted to database: February 4, 2011
3	336	EU Antitrust Enforcement Powers and Procedural Rights and Guarantees: The Interplay Between EU Law, National Law, the Charter of Fundamental Rights of the EU and the European Convention on Human Rights Wouter P. J. Wils, European Commission, Date posted to database: February 12, 2011 [4th last week]
4	274	Emotion, Neuroscience, and Law: A Comment on Darwin and Greene John Mikhail, Georgetown University - Law Center, Date posted to database: February 14, 2011 [6th last week]
5	270	Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause Jordan M. Barry, University of San Diego - School of Law, Date posted to database: February 11, 2011
6	254	Sorting Guilty Minds Francis X. Shen, Morris B. Hoffman, Owen D. Jones, Joshua D. Greene, Rene Marois, Vanderbilt Law School, Second Judicial District (Denver), State of Colorado, Vanderbilt University - Law School & Department of Biological Sciences, Harvard University, Department of Psychology, Vanderbilt University - Department of Psychology, Date posted to database: February 24, 2011 [7th last week]
7	246	'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences Alison Siegler, Barry Sullivan, University of Chicago Law School, Loyola University Chicago School of Law, Date posted to database: January 27, 2011 [8th last week]
8	213	Brain Scans as Evidence: Truths, Proofs, Lies, and Lessons Francis X. Shen, Owen D. Jones, Vanderbilt Law School, Vanderbilt University - Law School & Department of Biological Sciences, Date posted to database: February 24, 2011 [9th last week]
9	209	Discretion and Prioritisation in Public Antitrust Enforcement, in Particular EU Antitrust Enforcement Wouter P. J. Wils, European Commission, Date posted to database: February 12, 2011 [new to top ten]
10	181	Reducing Mass Incarceration: Lessons from the Deinstitutionalization of Mental Hospitals in the 1960s Bernard E. Harcourt, University of Chicago - Law School, Date posted to database: January 27, 2011

Next week's criminal law/procedure argument

Issue summary is from ScotusBlog:

Tuesday

• Fowler v. US: Whether, to prove a criminal violation of the federal witness tampering statute when a defendant allegedly kills a witness, the government must prove that the victim would have provided information regarding a crime to a court or law enforcement.

Boruchowitz on Diverting and Reclassifying Misdemeanors

Robert C. Boruchowitz (Seattle University School of Law) has posted Diverting and Reclassifying Misdemeanors Could Save $1 Billion Per Year: Reducing the Need for and Cost of Appointed Counsel (American Constitution Society for Law and Policy, December 2010) on SSRN. Here is the abstract:

Reclassifying and diverting marijuana possession, driver's license suspension and other misdemeanors could save the indigent defense system as much as $1 billion per year, allowing overworked criminal defenders to devote time and resources to those charged with more serious crimes.

Fines on Criminal Activities and Ethical Responsibilities

Barbara Glesner Fines (University of Missouri at Kansas City - School of Law) has posted Criminal Activities and Ethical Responsibilities (Family Advocate, Vol. 33, No. 4, Spring 2011) on SSRN. Here is the abstract:

This article addresses the question of a lawyers professional responsibility when a seemingly simple domestic relations case begins to turn into a major criminal catastrophe. Starting with ABA Model Rule 1.2(d) that an attorney “shall not counsel or assist in criminal or fraudulent conduct but may discuss the legal consequences of proposed conduct…”it analyzes the attorney’s responsibilities in the context of a hypothetical case involving hidden assets and misrepresented financial statements. Options to withdraw under Model Rule 1.16(b) are discussed along with the questions raised therefrom and the lawyer’s Model Rule 4.1(b) obligation not to knowingly fail to disclose material facts. From there the nightmare turns criminal as the hypothetical client is indicted raising issues ranging from emergency lawyering under Model Rule 1.1 to the lawyers own fees being subject to forfeiture. In conclusion it is nearly impossible to screen out every client who may bring criminal activities into family law representation. However, with careful research, clear communication, and documentation, a lawyer will be able to find a route out of the nightmare without being caught up in the criminal activity itself.

Maclin & Mirabella on Framing the Fourth

Tracey Maclin and Julia Grace Mirabella (Boston University - School of Law and Boston University School of Law) have posted Framing the Fourth (Michigan Law Review, Vol. 109, pp. 1049-1076, April 2011) on SSRN. Here is the abstract:

Book Review of "The Fourth Amendment: Origins and Original Meaning", 602-1791. By William J. Cuddihy. Oxford and New York: Oxford Press. 2009. Pp. lxviii, 940. $165.

History is again an important element of the Supreme Court’s Fourth Amendment analysis. In Wyoming v. Houghton, Justice Scalia’s opinion for the Court announced that a historical inquiry is the starting point for every Fourth Amendment case. William Cuddihy’s book on the origins and original meaning of the Fourth Amendment will undoubtedly assist the Justices (and everyone else) in understanding the history of search and seizure law.

Cuddihy’s historical analysis is unprecedented. As Justice O’Connor has described it, Cuddihy’s work is “one of the most exhaustive analyses of the original meaning of the Fourth Amendment ever undertaken.” Cuddihy reviewed thousands of sources and has endeavored to identify the types of search and seizure that the Framers’ considered constitutional. However, Cuddihy’s scholarship has also triggered a sharp debate about the Framers’ intent among Fourth Amendment scholars.

This Review provides readers with some of Cuddihy’s main arguments. Part I identifies aspects of search and seizure doctrine that Cuddihy finds had a consensus by 1791 and briefly looks at other areas that were unsettled. Part II describes some of the scholarly reaction that Cuddihy’s book has ignited. Specifically, this section outlines the points of agreement and disagreement between Cuddihy and Professors Thomas Davies and Fabio Arcila. Finally, Part III compares Justice Scalia’s use of history in a recent case with Cuddihy’s findings, and offers a few comments on the guidance that Cuddihy’s book can provide to modern judges.

Carodine on "Untried Conviction" Impeachment

Montré Denise Carodine (University of Alabama - School of Law) has posted Keeping it Real: Reforming the ‘Untried Conviction’ Impeachment Rule(Maryland Law Review, Vol. 69, p. 501, 2010) on SSRN. Here is the abstract:

There is a growing call for a “New Legal Realism,” that, among other things, takes a “bottom-up” approach to studying the effects of rules of law on the people to whom they actually apply on a day-to-day basis. The New Legal Realism movement spans across various fields and disciplines related to law. The movement is particularly evident in the area of criminal law where there is an increasing effort to ensure reliability and accuracy in the system’s results. The recent move of some states to require racial impact statements for pending legislation as well as the advocacy and findings of the innocence movement exemplify this effort. Even more compelling are the recent lawsuits filed by public defenders in several states, citing their inability to represent their clients in a constitutionally effective manner and demanding to have their caseloads reduced until they can be adequately funded. This Article aids in the effort to improve our justice system’s reliability, taking a New Legal Realist approach to the area of evidence law as applied in the criminal setting.

I explore the interrelationship between plea bargaining and the use of prior convictions to impeach criminal defendants at trial, two of the most controversial practices in the criminal justice system. The prior conviction impeachment rule is a classic and deeply entrenched evidentiary rule. In this Article, I rename the Rule, dubbing it the “untried conviction” impeachment rule, to reflect the reality of its application. Indeed, the reality – overlooked by evidence and criminal law scholars – is that prior convictions used in later proceedings to “impeach” criminal defendants are most often untried convictions, having resulted from the plea bargaining system. I propose a fundamental shift in the application of Rule 609 to reflect this reality. Plea bargaining has rightly come under much scrutiny of late and is considered a prominent feature of our current system that processes defendants in an assembly-line fashion. I propose that, as long as we continue to impeach defendants with their untried convictions, Congress and state legislatures should act to exclude from Rule 609’s applicability the use of untried convictions. Alternatively, until lawmakers act, courts, who are charged with protecting the fundamental rights of criminal defendants, must vigilantly scrutinize the practice of impeaching criminal defendants with untried convictions, thus utilizing Rule 609 as an additional check on plea bargaining instead of as a rubber stamp.

Dervan on the DOJ and Corporate Criminal Liability

Lucian E. Dervan (Southern Illinois University School of Law) has posted Re-Evaluating Corporate Criminal Liability: The DOJ’s Internal Moral Culpability Standard for Corporate Criminal Liability (Stetson Law Review, Forthcoming) on SSRN. Here is the abstract:

This article examines the common law respondeat superior test for corporate criminal liability and proposes that it be expanded beyond the current two prong test to encompass a third prong regarding moral culpability. Further, this article supports this proposal by noting that the Department of Justice has already incorporated a moral culpability element into its analysis of corporate criminal liability through application of the Department’s Principles of Federal Prosecution of Business Organizations. While some might argue that one should be satisfied that the Department of Justice has seen fit to implement a new corporate criminal liability standard on its own volition, there are two fundamental flaws with allowing the status quo to suffice. First, while the government’s consideration of the Principles of Prosecution may be “mandatory,” these guidelines create no legal rights for corporate defendants. Second, the Principles of Prosecution contain elements for consideration that are outside the applicable scope of inquiry because they examine actions by the corporation that occur after the criminal conduct under scrutiny. As such, this article proposes a revised common law respondeat superior test that focuses the analysis of whether the corporation is morally culpable on a refined and appropriately limited group of pre-offense and offense specific factors.

Berry on the European Prescription for Ending the Death Penalty

William W. Berry III (University of Mississippi School of Law) has posted The European Prescription for Ending the Death Penalty on SSRN. Here is the abstract:

The United States of America remains the only Western democracy that continues to use capital punishment. Europeans, particularly in the academic community, continue to express outrage and disbelief at its persistence, especially given America’s twentieth century role as the world leader in challenging abuses of human rights.

This sociological question – why the United States retains the death penalty – has spawned a burgeoning academic literature. This literature has both deepened cultural understandings of the death penalty and raised questions concerning the degree to which (and in what ways) the United States is “exceptional” when compared to other Western democracies.

What has been missing from these discussions is a thorough account of the abolition of the death penalty in European nations. Such an account helps to address a number of questions: whether culture plays a significant role in the abolition of capital punishment; whether the United States is exceptional in a way that explains the persistence of its death penalty; and whether the United States is mirroring the same trajectory of its European counterparts, albeit at a slower pace.

At its heart, the entire academic discussion is subconsciously both predictive and prescriptive. In other words, explaining the persistence of the death penalty can both predict – will the United States ever abolish the death penalty? If so, how and when? – and prescribe – is there a way to advance the United States along the path to abolition, either by following the path of the Europeans, or following a new path that takes into account the cultural distinctiveness or other exceptional features of the United States?

In his recent book, Ending the Death Penalty: the European Experience in Global Perspective, German law professor Andrew Hammel attempts to provide the missing piece to the conversation through a careful study of the death penalty’s demise in Europe. He focuses on three nations – Germany, Great Britain, and France – and provides a detailed, play-by-play analysis of the events that led to abolition of the death penalty in each country. In addition to the value of this history itself, Hammel attempts to situate these parallel developments in a broader context by linking them together to delineate the European “path to abolition.” Finally, Hammel tackles the meta question – why have these patterns not become manifest in the United States – and outlines his view of death penalty persistence in America.

This book review first describes the conclusions reached by Hammel, as drawn from his compelling narrative of three parallel abolitions. The review then assesses Hammel’s arguments as to why the European model has seemingly had no impact in the United States. Finally, this review situates Hammel’s contributions within the broader debate, arguing that insights from the European experience can serve as a catalyst for death penalty abolition in the United States.