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

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Wednesday, August 31, 2011

Guerrero on Excusing Mistakes of Law

Alexander A. Guerrero has posted Deliberation, Responsibility, and Excusing Mistakes of Law (American Philosophical Association Newsletter on Philosophy and Law, 2011) on SSRN. Here is the abstract:

This short paper is a draft of soon-to-be-published comments on Gideon Yaffe’s paper “Excusing Mistakes of Law.” In this paper, I question Yaffe's strategy for defending the distinction drawn between excuses based on mistakes of law and excuses based on mistakes of fact. In particular, I question whether Yaffe's reliance on the notion of deliberation can do the work he suggests it can in providing a normative defense for the fact that "false beliefs about non-legal facts often excuse, but false beliefs about the law rarely excuse."

These comments were originally presented at the 2011 Pacific Division of the American Philosophical Association upon the occasion of Yaffe’s paper being awarded the Berger Prize for being the “best article or chapter in the field of legal philosophy in the past two years.” These comments (along with comments by Mark Greenberg and a response by Gideon Yaffe) will be published in the APA Newsletter on Philosophy and Law.

August 31, 2011 | Permalink | Comments (0)

Questions about the new eyewitness case (Dripps)

Dripps The New York Times recently carried a front-page story about the perennial problem of erroneous eyewitness identifications.  The focal point for the story was a New Jersey Supreme Court decision, State v. Larry Henderson.

Comments encouraged on this one--does some evidence of actual suggestiveness include the bare fact that the administrator knew the suspect's identity?  If not, what's changed? 

August 31, 2011 | Permalink | Comments (3)

Tuesday, August 30, 2011

Thompson on Judicial Gatekeeping of Police-Generated Witness Testimony

Thompson sandra Sandra Guerra Thompson (University of Houston Law Center) has posted Judicial Gatekeeping of Police-Generated Witness Testimony on SSRN. Here is the abstract:

This article urges a fundamental change in the administration of criminal justice. It calls for an active role for trial courts in determining the admissibility of police-generated lay witness testimony. The article focuses on what I call “police-generated witness testimony,” by which I mean confessions, police informants, and eyewitness identifications. These types of testimony are leading causes of wrongful convictions. The article shows that heavy-handed tactics by the police have a tendency to produce false evidence of these types, especially when the individuals being questioned by police are particularly vulnerable such as juveniles, or those who are intellectually disabled or mentally ill. It also demonstrates that there are procedural best practices that the police can follow to reduce the dangers of false evidence. The most important feature of the article is the proposal that courts take an active role in ensuring the reliability of criminal trials by invoking their gatekeeping responsibilities in screening police-generated evidence by holding pretrial reliability hearings. Current constitutional doctrine fails to exclude patently unreliable police-generated testimony. However, Rule 403 gives the courts broad discretion to exclude evidence on the grounds that its potential to mislead the jury substantially outweighs its probative value. State due process law can also be invoked. Reliability hearings for lay witness testimony already exist for some types of evidence in criminal cases (mostly defense evidence), and they are also clearly required for expert scientific evidence. Moreover, effective gatekeeping is consistent with the objectives of the rules of evidence, not to mention ethical requirements that judges secure the integrity of the trial process.

August 30, 2011 | Permalink | Comments (0)

"Juror attempts to 'friend' defendant on Facebook"

This did not amuse the judge. The story is here. Hat tip: Crime & Consequences.

August 30, 2011 | Permalink | Comments (0)

"Gun Inquiry Costs Officials Their Jobs"

From the New York Times:

WASHINGTON — The Obama administration on Tuesday replaced two top Justice Department officials associated with an ill-fated investigation into a gun-trafficking network in Arizona that has been at the center of a political conflagration.

. . .

Run by the bureau’s Phoenix division, the operation, called Operation Fast and Furious, ran from late 2009 to early 2011. Its strategy was to watch suspected “straw” gun buyers, rather than moving as quickly as possible to arrest them and seize the weapons, in the hope of identifying higher-level conspirators — as drug investigations are often conducted.

The operation was internally controversial because the firearms bureau traditionally puts a priority on getting guns off the street. It also lacked adequate controls — one straw purchaser bought more than 600 weapons, and agents lost track of hundreds. Many later turned up at crime scenes in Mexico, and two were recovered at a site in Arizona where a United States Border Patrol agent was killed.

August 30, 2011 | Permalink | Comments (0)

Lerner on Juvenile Criminal Responsibility

Lerner_craig Craig S. Lerner (George Mason University School of Law) has posted Juvenile Criminal Responsibility: Can Malice Supply the Want of Years? (Tulane Law Review, Forthcoming) on SSRN. Here is the abstract:

Can the young be held accountable for their crimes? At common law, juveniles were entitled to a presumption of incapacity, but were subject to criminal liability on an individualized basis: demonstrated malice supplied the want of years. In Graham v. Florida, the United States Supreme Court rejected this principle, and held that juveniles categorically could not be sentenced to life without parole for crimes other than homicide. Embedded in the Court’s holding, this Article argues, are a simplifying assumption about the relative maturity of juveniles and adults and a moral claim about the culpability of homicides and nonhomicides, and both this assumption and this claim are demonstrably false in a nontrivial number of cases.

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August 30, 2011 | Permalink | Comments (0)

Ball on Normative Elements of Parole Risk

Ball w david W. David Ball (Santa Clara School of Law) has posted Normative Elements of Parole Risk (Stanford Law & Policy Review, Vol. 22, No. 2, p. 395, 2011) on SSRN. Here is the abstract:

Parole boards evaluate the public safety risk posed by parole-eligible prisoners to determine whether they should be released. In this Essay, I argue that this process, at least as it operates in California, is fundamentally flawed because it asks the wrong question. Rather than ask whether an inmate poses any public safety risk, parole board officials should instead ask whether this risk is worth taking.

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August 30, 2011 | Permalink | Comments (0)

Monday, August 29, 2011

Coverage of New Jersey opinion on eyewitness identifications

The New York Times has this article and links to the opinion here. From the article:

The decision by New Jersey’s Supreme Court last week to overhaul the state’s rules for how judges and jurors treat evidence from police lineups could help transform the way officers conduct a central technique of police work, criminal justice experts say.

In its ruling, the court strongly endorsed decades of research demonstrating that traditional eyewitness identification procedures are flawed and can send innocent people to prison. By making it easier for defendants to challenge witness evidence in criminal cases, the court for the first time attached consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications.

. . .

Although some states are studying revisions or require single changes in procedure, only two — New Jersey and North Carolina — mandate the two practices that researchers regard as most important: lineups that are blinded, that is, administered by someone who is not familiar with the suspect and who is not one of the primary investigators on the case; and photo arrays that are presented sequentially rather than as a group. Both practices, studies find, decrease the pressure on witnesses to pick someone and guard against influence.

August 29, 2011 | Permalink | Comments (0)

"First Circuit upholds right to record public police action"

Jurist has the report on this case.

August 29, 2011 | Permalink | Comments (0)

Anderson on Viewing Excessive Defense Caseloads as Conflicts of Interest

Anderson heidi Heidi Reamer Anderson (Florida Coastal School of Law) has posted Funding Gideon's Promise by Viewing Excessive Caseloads as Conflicts of Interest on SSRN. Here is the abstract:

Some states recently have attempted to legislate around a defendant’s constitutional right to effective assistance of counsel via a novel two-step method. Step one is to allocate insufficient funds for public defense, which results in excessive caseloads for public defenders. Sadly, that step is nothing new. Step two - the one that has slipped by without sufficient notice or criticism - is to bar a public defender from withdrawing from representation based on his excessive caseload. Ultimately, this statutory two-step further entrenches the systematic deprivation of defendants’ Sixth Amendment rights to effective assistance.

In this article, I urge courts to “constitutionalize” the excessive caseload problem via two steps of their own. First, courts explicitly should recognize that excessive caseloads create unethical conflicts of interest for the public defenders laboring under them. Second, courts should equate excessive caseload conflicts with joint representation conflicts. Once viewed as that type of conflict, excessive caseloads then would be evaluated under Sullivan’s “adverse effect” test instead of under Strickland’s more stringent “actual prejudice” test. Under Sullivan, the most egregious excessive caseload conflicts could be deemed unconstitutional. As a result, courts effectively could require states to do what few legislatures are willing to do on their own - finally provide adequate funding for indigent representation consistent with Gideon’s promise.

August 29, 2011 | Permalink | Comments (0)

Buchhandler-Raphael on Prosecutorial Misuse of Terrorism Offenses

Buchhandler raphael michal Michal Buchhandler-Raphael (Washington and Lee University - School of Law) has posted What's Terrorism Got to Do with it? The Perils of Prosecutorial Misuse of Terrorism Offenses on SSRN. Here is the abstract:

State and federal statutes contain many criminal prohibitions that are commonly perceived as terrorism-related crimes. These statutes, however, do not make the definition of terrorism - a term whose components legislatures do not agree upon – an element of the crime. Instead, the terrorism classification is merely inferred based on features that typically characterize crimes of terrorism. These include the scope of the harm intended or inflicted, the nature of the technical measures used to carry out the attack, or the aid provided to terrorist organizations. These statutes, however, are too broad, covering a wide variety of crimes above and beyond the terrorism context.

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August 29, 2011 | Permalink | Comments (0)

Sunday, August 28, 2011

Top-Ten Recent SSRN Downloads

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

Rank Downloads Paper Title
1 425 Who’s Better at Defending Criminals? Does Type of Defense Attorney Matter in Terms of Producing Favorable Case Outcomes
Thomas H. Cohen,
U.S. Bureau of Justice Statistics,
Date posted to database: July 1, 2011
2 310 Tough on Crime (on the State's Dime): How Violent Crime Does Not Drive California Counties' Incarceration Rates - And Why it Should
W. David Ball,
Santa Clara School of Law,
Date posted to database: June 28, 2011  
3 228 Re-Thinking Illegal Entry and Re-Entry
Doug Keller,
Georgetown University Law Center ,
Date posted to database: July 14, 2011 [4th last week]
4 180 The Causes of Growth in Prison Admissions and Populations
John F. Pfaff,
Fordham University - School of Law,
Date posted to database: July 15, 2011 [5th last week]
5 165 Mass Exoneration Data and the Causes of Wrongful Convictions
Russell D. Covey,
Georgia State University College of Law,
Date posted to database: July 8, 2011 [7th last week]
6 148 Solicitation, Extortion, and the FCPA
Joseph W. Yockey,
University of Iowa College of Law,
Date posted to database: July 28, 2011 [9th last week]
7 136 Rawls' Concept of Reflective Equilibrium and its Original Function in 'A Theory of Justice'
John Mikhail,
Georgetown University - Law Center,
Date posted to database: July 21, 2011 [8th last week]
8 127 Mental Disorder and Criminal Law
Stephen Morse,
University of Pennsylvania Law School,
Date posted to database: July 24, 2011 [new to top ten]
9 126 Last Chance on Death Row
William Baude,
Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP,
Date posted to database: July 11, 2011 [10th last week]
10 116 The Uncertain Legal Status of the Aggression Understandings
Kevin Jon Heller,
Melbourne Law School,
Date posted to database: July 11, 2011 [new to top ten]

August 28, 2011 | Permalink | Comments (0)

Saturday, August 27, 2011

Denno on Neuroscience, Fairness and Effectiveness in Punishment

Denno deborah Deborah W. Denno (Fordham University School of Law) has posted Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively (CHANGING LAW'S MIND: HOW NEUROSCIENCE CAN HELP US PUNISH CRIMINALS MORE FAIRLY AND EFFECTIVELY, Oxford University Press, Forthcoming, Fordham Law Legal Studies Research Paper) on SSRN. Here is the abstract:

A criminal justice system should protect society from crime and also punish criminals at the level of their blameworthiness. Changing Law’s Mind contends that new insights about the brain can help us in the quest to construct a fairer and more effective criminal justice system. Recent neuroscientific discoveries suggest that some of our previous intuitions about human culpability fail to reflect the reality of how the brain functions. If we ignore these developments, we risk perpetuating a justice system that punishes some people far too much and others too little or not at all.

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August 27, 2011 | Permalink | Comments (0)

Friday, August 26, 2011

Mnookin on the West Memphis Three

Jennifer Mnookin has this piece in the L.A. Times, posed at Statesman.com. In part:

So what produces wrongful convictions? At least three of the often-seen causes were present here: dubious forensic science evidence, false confessions, and evidence from unreliable jailhouse informants who often have a strong incentive to tell law enforcers what they want to hear.

Hat tip: Claudio Giusti.

August 26, 2011 | Permalink | Comments (0)

"U.S. Widens Role in Mexican Fight"

From the New York Times. In part:

WASHINGTON — The Obama administration has expanded its role in Mexico’s fight against organized crime by allowing the Mexican police to stage cross-border drug raids from inside the United States, according to senior administration and military officials.

Mexican commandos have discreetly traveled to the United States, assembled at designated areas and dispatched helicopter missions back across the border aimed at suspected drug traffickers. The Drug Enforcement Administration provides logistical support on the American side of the border, officials said, arranging staging areas and sharing intelligence that helps guide Mexico’s decisions about targets and tactics.

Officials said these so-called boomerang operations were intended to evade the surveillance — and corrupting influences — of the criminal organizations that closely monitor the movements of security forces inside Mexico. And they said the efforts were meant to provide settings with tight security for American and Mexican law enforcement officers to collaborate in their pursuit of criminals who operate on both sides of the border.

August 26, 2011 | Permalink | Comments (0)

Chin on Pre-Sentence Report after Padilla

Chin_jack Gabriel J. Chin (University of California, Davis, School of Law) has posted Taking Plea Bargaining Seriously: Reforming Pre-Sentence Reports after Padilla v. Kentucky
(St. Louis University Public Law Review, Forthcoming) on SSRN. Here is the abstract:

This essay proposes two reforms to the pre-sentence report (PSR) in light of increasing recognition that plea bargaining, not trial, is the major decision point in criminal prosecutions.

PSRs are important to plea bargaining and sentencing because they contain the critical information that will be used in imposing a sentence. The sentence will sometimes be mandated by the criminal record and other information in the PSR; for example, a record may mean that there is a mandatory minumum sentence, or that probation is unavailable. In most other cases, the sentence will be highly influenced by the contents of the PSR. Given the importance of the PSR, in a rationally designed system, the PSR would be available before critical decisions about the case are made. Yet, under current practice, the PSR is generally not prepared or available until after entry of a guilty plea. This means that all parties are pleading in the dark – they can be surprised by a mandatory or presumptive sentence based on ignorance or misunderstanding of the defendant's criminal record or other important, pre-existing facts. While deferring preparation of the PSR until after disposition might have made sense in an era when many cases went to trial, it is unacceptable when virtually all cases are pleaded. Accordingly, PSRs should be prepared in advance of pleas, so that all parties can make a deal knowing the facts that reveal what the bargain actually means.

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August 26, 2011 | Permalink | Comments (0)

Mannheimer on the Federal Death Penalty and Michael Jacques

Mannheimer michael Michael Mannheimer (Northern Kentucky University - Salmon P. Chase College of Law) has posted Self-Government, the Federal Death Penalty, and the Unusual Case of Michael Jacques (Vermont Law Review, Vol. 36, 2011) on SSRN. Here is the abstract:

In prior work I have argued that the Cruel and Unusual Punishments Clause of the Eighth Amendment should be read to prohibit the federal government from imposing the death penalty for crimes occurring within States that do not authorize capital punishment. This Article elaborates upon that argument and situates it within the particular context of the case of United States v. Michael Jacques. Jacques is being prosecuted for the kidnapping, rape, and murder of his twelve-year old niece, alleged to have taken place entirely within the State of Vermont, which does not authorize the death penalty. Because Jacques allegedly used text messages and a social networking website to facilitate the kidnapping, however, his crime constitutes a federal kidnapping, punishable by death because the victim was killed.

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August 26, 2011 | Permalink | Comments (0)

Thursday, August 25, 2011

"No Pardons in ‘West Memphis Three’ Case"

From A.P., via the New York Times:

Gov. Mike Beebe said Tuesday that he did not plan to grant pardons in the “West Memphis Three” case unless evidence showed that someone else was to blame for the murders of three young boys in 1993. The three men who were convicted, Damien Echols, Jason Baldwin and Jessie Misskelley Jr., now have 10 years of what amounts to unsupervised probation after being released from custody on Friday in a swiftly arranged plea deal. Mr. Beebe said he did not consider pardons until all sentences were completed, and his term will have expired long before the probation ends. After an HBO documentary detailed their case in 1996, the men garnered celebrity support and hefty donations. The original murder convictions were set aside amid doubts about the evidence. The three pleaded guilty to lesser charges on Friday in exchange for sentences of the 18 years that they had already served.

August 25, 2011 | Permalink | Comments (0)

Funk on Electronic Surveillance of Terrorism

Funk william William Funk (Lewis & Clark Law School) has posted Electronic Surveillance of Terrorism in the United States (Mississippi Law Journal, Vol. 80, No. 4, 2011) on SSRN. Here is the abstract:

This short article, prepared for an international forum on criminal procedure, describes the history of the use of electronic surveillance to combat terrorism in the United States. It shows how the restrictions on its use has evolved into a compromise between traditional law enforcement norms and military/national security norms, just as the apprehension and treatment of terrorists has muddled the law enforcement and military roles. The article concludes that the Foreign Intelligence Surveillance Act’s compromise is a reasonable accommodation of the peculiar characteristics of modern, international terrorism.

August 25, 2011 | Permalink | Comments (1)

Perlin on Mental Disabilities and the Competence to Have Sex

Perlin Michael L. Perlin (New York Law School) has posted 'All His Sexless Patients': Persons with Mental Disabilities and the Competence to Have Sex on SSRN. Here is the abstract:

Few questions of competency are as befuddling or as controversial as the question of a person’s competency to consent to sexual relations. Any consideration of this question necessarily implicates issues of law and clinical assessment, and analyses of this question are usually conflated with discussions of politics, social mores and “morality.” This inquiry is further complicated by the fact that there is no unitary definition of “competence” in the law in general.

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August 25, 2011 | Permalink | Comments (0)