CrimProf Blog

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

Wednesday, August 24, 2011

"Involuntary Manslaughter Conviction for Asking Jealous and Dangerous Ex-Boyfriend to Drive You to the House of the New Boyfriend?"

Eugene Volokh reports on this interesting case at The Volokh Conspiracy.

August 24, 2011 | Permalink | Comments (0)

"F.B.I. Focusing on Security Over Ordinary Crime"

The story is in the New York Times:

WASHINGTON — Agents of the Federal Bureau of Investigation have been more likely to be hunting for potential threats to national security than for ordinary criminals in recent years, but much of the time found neither, according to newly disclosed internal information.

Data from a recent two-year period showed that the bureau opened 82,325 assessments of people and groups in search for signs of wrongdoing. Agents closed out most of the assessments, the lowest-level of F.B.I. investigation, without finding information that justified a more intensive inquiry.

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August 24, 2011 | Permalink | Comments (0)

Fontaine on Psychopathy and Culpability

Fontaine reid Reid G. Fontaine (Florida State University - College of Law) has posted Psychopathy and Culpability: How Responsible is the Psychopath for Criminal Wrongdoing? (Law and Social Inquiry, Forthcoming) on SSRN. Here is the abstract:

Recent research into the psychological and neurobiological underpinnings of psychopathy has raised the question of whether, or to what degree, psychopaths should be considered morally and criminally responsible for their actions. In this article we review the current empirical literature on psychopathy, focusing particularly on deficits in moral reasoning, and consider several potential conclusions that could be drawn based on this evidence. Our analysis of the empirical evidence on psychopathy suggests that while psychopaths do not meet the criteria for full criminal responsibility, they nonetheless retain some criminal responsibility. We conclude, by introducing the notion of rights as correlative that even if psychopaths were to be fully non-responsible, it would still be warranted to impose some form of civil commitment.

August 24, 2011 | Permalink | Comments (0)

Mauser on the Long-Gun Registry and Spousal Homicide

Gary A. Mauser (Simon Fraser University) has posted The Long-Gun Registry and Spousal Homicide on SSRN. Here is the abstract:

This paper is a brief analysis of a special request to Statistics Canada, made in July 2011, concerning female victims of spousal homicides (1995 - 2009). This study updates results from an earlier study I did in 2010 (SSRN #1599705). No support was found for the claim that the long-gun registry has been effective. As far as it can be determined, the long-gun registry has not saved a single woman’s life.

August 24, 2011 | Permalink | Comments (0)

Tuesday, August 23, 2011

"Post-Skilling Government Approach - Depends on the Case"

The post is at White Collar Crime Prof:

Redzic raised issues of whether the accused had truly been advised under due process of the charges against the defendant since the government was using an uncharged basis for asking that the conviction be upheld.  But now the government in Stinn is saying that it makes a difference whether the government charges a case under 1346. Is the government taking the opposite position in these two cases (Redzic and Stinn), and is this problematic?

August 23, 2011 | Permalink | Comments (0)

Herbert on GPS Surveillance

Herbert_lenese Lenese C. Herbert (Albany Law School) has posted Challenging the (Un)Constitutionality of Governmental GPS Surveillance (Criminal Justice, Vol. 26, No. 2, Summer 2011) on SSRN. Here is the abstract:

Police departments across the country are relying upon Global Positioning System (GPS) devices to initiate or further criminal investigations. GPS-enabled surveillance allows law enforcement agents to collect continuous, detailed, and real-time location information, without incurring the commensurate costs in dedicated employee resources. With increasing frequency, federal, state, and municipal law enforcement agencies are attaching GPS devices to vehicles, often without a warrant, to obtain evidence.

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August 23, 2011 | Permalink | Comments (0)

"34 Years Later, Supreme Court Will Revisit Eyewitness IDs"

Adam Liptak's story is in the New York Times:

WASHINGTON — Every year, more than 75,000 eyewitnesses identify suspects in criminal investigations. Those identifications are wrong about a third of the time, a pile of studies suggest.

. . .

In November, the Supreme Court will return to the question of what the Constitution has to say about the use of eyewitness evidence. The last time the court took a hard look at the question was in 1977. Since then, the scientific understanding of human memory has been transformed.

August 23, 2011 | Permalink | Comments (0)

Vincent & van de Poel on Moral Responsibility

Nicole A. Vincent and Ibo van de Poel (Department of Philosophy, Macquarie University and affiliation not provided to SSRN) have posted Introduction (MORAL RESPONSIBILITY: BEYOND FREE WILL & DETERMINISM, pp. 1-13, N. Vincent, I. van de Poel, J. van den Hoven, eds., Springer, 2011) on SSRN. Here is the abstract:

This is the introductory chapter to the book Moral Responsibility: Beyond Free Will & Determinism. It contains an overview of all of the chapters contained in this book, and it also explains the central themes that run through these chapters.

August 23, 2011 | Permalink | Comments (0)

Ryan on Remedying Wrongful Execution

Ryan meghan Meghan J. Ryan (Southern Methodist University - Dedman School of Law) has posted Remedying Wrongful Execution (University of Michigan Journal of Law Reform, Vol. 45, No. 2, 2012) on SSRN. Here is the abstract:

The first legal determination of wrongful execution in the United States may very well be in the making in Texas. One of the state’s district courts was recently in the midst of investigating whether Cameron Todd Willingham, who was executed in 2004, was actually innocent. The court has been interrupted by objections from Texas prosecutors and the presiding judge’s retirement, but if the court proceeds, this may very well become a bona fide case of wrongful execution. Texas, just like other jurisdictions, is ill-equipped to provide any relief for such an egregious wrong, however. This Article identifies the difficulties that the heirs, families, and friends of wrongfully executed individuals face in attempting to obtain compensation for this wrong. The Article highlights that statutory compensation schemes overlook the issue of wrongful execution and the greater injustice it entails and urges that the statutes be amended in light of this grievous wrong that has come to the fore of American criminal justice systems.

August 23, 2011 | Permalink | Comments (0)

Monday, August 22, 2011

Pustilnik on Pain Neuroimaging and Moral Dimensions of Law

Pustilnik amanda Amanda C. Pustilnik (University of Maryland - School of Law) has posted Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law (Cornell Law Review, Vol. 97, No. 4, 2012) on SSRN. Here is the abstract:

Legal statuses, prohibitions, and protections often turn on the presence and degree of physical pain. In legal domains ranging from tort to torture, pain and its degree do important definitional work by delimiting boundaries of lawfulness and of entitlements. The omnipresence of pain in law suggests that the law embodies an intuition about the ontological primacy of pain. Yet, for all the work done by pain as a term in legal texts and practice, it has had a confounding lack of external verifiability. As with other subjective states, we have been able to impute pain’s presence but have not been able to observe it directly.

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August 22, 2011 | Permalink | Comments (0)

McDonald & Tinsley on Alternate Ways of Giving Evidence by Vulnerable Witnesses

Elisabeth McDonald and Yvette Tinsley (Victoria University of Wellington - Faculty of Law and Victoria University of Wellington - Faculty of Law) have posted Use of Alternative Ways of Giving Evidence by Vulnerable Witnesses: Current Proposals, Issues and Challenges (Victoria University of Wellington Law Review, Forthcoming) on SSRN. Here is the abstract:

Fifteen years after the Law Commission’s rejection of pre-trial recording of cross-examination, it is back on the reform agenda. Drawing from research examining comparative pre-trial and trial practices in cases of sexual offending, this article discusses the backdrop to the debate surrounding pre-recording, including the provisions of the Evidence Act 2006 and the approach of the courts to alternative ways of giving evidence. The benefits and drawbacks of pre-trial recording of evidence for adult witnesses are canvassed – including practical, evidential and psychological issues – leading to the conclusion that rather than a presumption in favour of any particular alternative way of giving evidence, close consideration of the individual circumstances of each case is required.

August 22, 2011 | Permalink | Comments (0)

Developments related to sexual assault charges against Strauss-Kahn


New York (CNN) -- A New York district attorney plans to drop criminal charges against former International Monetary Fund chief Dominique Strauss-Kahn related to allegations that he sexually assaulted a hotel housekeeper, attorneys for both the housekeeper and Strauss-Kahn said Monday.

Kenneth Thompson, who represents alleged victim Nafissatou Diallo, addressed reporters after a meeting with prosecutors that lasted less than half an hour, and hours after filing a motion asking a judge to halt proceedings in the case and appoint a special prosecutor.

The New York Times also has coverage.

August 22, 2011 | Permalink | Comments (1)

Sunday, August 21, 2011

Kaye on DNA Database Trawls

Kaye david David H. Kaye (The Pennsylvania State University) has posted DNA Database Trawls and the Definition of a Search in Boroian v. Miller (Virginia Law Review, Vol. 97, pp. 41-49, 2011) on SSRN. Here is the abstract:

As a general matter, once the government acquires information from a permissible search or seizure, it can use this information in later criminal investigations. Courts have applied this simple rule to uphold the indefinite reuse of DNA samples acquired from convicted offenders. This essay describes the First Circuit Court of Appeals’ reliance on the rule in rejecting a convicted offender’s claim that his DNA sample and profile had to be removed from the federal DNA databank after he completed his sentence. Acknowledging that the rule permitting reuse should not be applied mechanically, I argue that the rule's application to DNA databases is correct because merely retrawling a database for matches to a crime-scene sample does not implicate any cognizable Fourth Amendment interest.

August 21, 2011 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

Rank Downloads Paper Title
1 406 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
2 298 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
3 240 Radical Thought from Marx, Nietzsche, and Freud, Through Foucault, to the Present: Comments on Steven Lukes’ ‘In Defense of False Consciousness’
Bernard E. Harcourt,
University of Chicago - Law School,
Date posted to database: June 19, 2011
4 219 Re-Thinking Illegal Entry and Re-Entry
Doug Keller,
Georgetown University Law Center ,
Date posted to database: July 14, 2011
5 171 The Causes of Growth in Prison Admissions and Populations
John F. Pfaff,
Fordham University - School of Law,
Date posted to database: July 15, 2011
6 170 What is Securities Fraud?
Samuel W. Buell,
Duke University School of Law,
Date posted to database: June 27, 2011
7 159 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
8 131 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
9 129 Solicitation, Extortion, and the FCPA
Joseph W. Yockey,
University of Iowa College of Law,
Date posted to database: July 28, 2011 [new to top ten]
10 122 Last Chance on Death Row
William Baude,
Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP,
Date posted to database: July 11, 2011 [9th last week]

August 21, 2011 | Permalink | Comments (0)

Saturday, August 20, 2011

Lee on Fourth Amendment Reasonableness Analysis

Lee_cynthia Cynthia Lee (George Washington University Law School) has posted Reasonableness with Teeth: The Future of Fourth Amendment Reasonableness Analysis (Mississippi Law Journal, Forthcoming) on SSRN. Here is the abstract:

This essay assesses the past, the present, and the future of Fourth Amendment reasonableness analysis. Part I focuses on the past. For much of the twentieth century, the Court embraced what is called the warrant preference view of the Fourth Amendment under which a search was considered reasonable if the government obtained a search warrant prior to the search or an exception to the warrant requirement applied. Part II focuses on the present. Even though it still treats as reasonable both searches conducted pursuant to a warrant and searches that fall within a well established exception to the warrant requirement, the modern Court has increasingly abandoned the warrant preference view. Instead of interpreting the Fourth Amendment as expressing a preference for warrants, the modern Court reads the text of the Fourth Amendment as simply requiring reasonableness. In a number of cases, the modern Court has adopted what some have called an originalist approach, assessing the reasonableness of a search based on whether the challenged governmental action was unlawful under the common law at the time of the framing. Part III critiques the Court’s current focus on reasonableness as the touchstone of Fourth Amendment analysis. It starts with what might be called the traditional critique of reasonableness. Under this critique, the current reasonableness inquiry is problematic because it provides insufficient guidance to lower courts and results in rulings that tend to be overly deferential to the government. Part III also provides the left critique of reasonableness. Under this critique, implicit bias may lead police officers to see young men of color on the street as more suspicious than others, which may lead them to stop and search those individuals more frequently than others. Implicit bias may also lead courts to exercise their discretion to decide whether a search is reasonable in ways that favor law enforcement and disfavor Blacks and Latinos who make up the bulk of individuals arrested, tried, and convicted of crimes in the United States. Part IV looks to the future. Professor Lee opines that the Court today stands at a crossroads. It can completely replace the warrant preference model with the reasonableness model of the Fourth Amendment, as it has already done in a few cases, it can return to a robust embrace of the warrant preference view, or it can recognize the virtues of the warrant preference and the reasonableness models and improve upon both. Because the Court is unlikely to return to a robust embrace of warrants, Professor Lee argues that the Court should continue its current path of recognizing both models. Instead of extremely deferential pro-government reasonableness balancing, however, Professor Lee argues that courts should engage in a more stringent form of Fourth Amendment reasonableness review. Borrowing from a small slice of the Court’s equal protection jurisprudence, its rational basis with bite cases, Professor Lee urges courts assessing the reasonableness of a Fourth Amendment search to engage in less deferential reasonableness review with teeth.

August 20, 2011 | Permalink | Comments (0)

"Clemens Prosecutors Request a New Trial"

From the New York Times:

WASHINGTON — Federal prosecutors overseeing the Roger Clemens perjury case said Friday that they made an unintentional error when showing jurors inadmissible evidence that led to Clemens’s mistrial last month. The prosecutors asked a judge to allow a new trial.

. . . .

For the first time, the prosecutors explained how the mistake had occurred, saying they were too bogged down with opening statements, jury selection and jury instructions to realize that they had not conformed some of their exhibits to the judge’s latest rulings.

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August 20, 2011 | Permalink | Comments (0)

Friday, August 19, 2011

"The Abuse Excuse"

From Crime and Consequences, discussing a death-row appeal:

Jackson's lawyers in the appeal argue that his trial defense failed to present an adequate picture of the sexual, physical and psychological abuse he endured as a child.

Notably, Jackson's brother and sister were not called to testify at trial, reportedly because Jackson's defense believed it would harm his case as his brother suffered the same abuse and has no criminal record.

And there is the fallacy of the abuse excuse.  Yes, it's a terrible thing if someone has a bad childhood.  But regrettably lots of people do, and very few of them become murderers.  The decision to rape and murder remains an act of free will no matter how bad your childhood was.

August 19, 2011 | Permalink | Comments (0)

"A Lawyer in Minnesota Challenges the Accuracy of D.W.I. Breath Tests"

From the New York Times. Here's an excerpt from the Q/A with the lawyer:

Q Please describe what is at issue with this device.

A The machine is called the Intoxilyzer 5000EN. It is manufactured by a Kentucky company that sold the machines to Minnesota law enforcement. It uses infrared technology to measure particulate matter, and then uses a mathematical formula to convert it to what the blood-alcohol level would be. 

. . .

Q How long do you believe there has been a problem with the Intoxilyzer, and what made people start looking into it?

A The suspicion is that this probably started a long time ago. The more air you blow into the machine, the higher the alcohol rate it registers. You have officers saying, “Blow harder. Blow harder,” as people are blowing into these machines. I’ve seen it happen time and again. In some cases, if you didn’t blow enough air into a machine you get what is called a “deficient sample,” which is qualified as a refusal. A refusal takes a harsher punishment in Minnesota.” [Note: The state and the manufacturer dispute that blowing harder is linked to higher readings.] I’ve handled over 1,000 D.W.I.’s in the last seven years and always look at the breath volume and compare the two samples [tests consist of two breaths into the Intoxilyzer]. I’ve seen this. I don’t know whether it could be tested or if it’s been tested. It’s kind of anecdotal.

August 19, 2011 | Permalink | Comments (3)

Laudan on Appellate Asymmetry

Larry Laudan (Instituto de Investigaciones Filosoficas, UNAM) has posted Detecting Error, Learning from Our Mistakes, and the Appellate Asymmetry on SSRN. Here is the abstract:

This paper investigates the epistemic obstacles posed by a legal system that prevents reversal of acquittals. Because such prevention disincentivizes appeals of non-guilty verdicts by prosecutors, false acquittals are virtually impossible to identify. Apart from entailing that such errors cannot be corrected (since they are not detected), this policy has a more egregious consequence; to wit, that appellate courts have little or no opportunity to learn what kinds of flaws lead to false acquittals. Without such knowledge, the courts are in no position to make or to recommend the sorts of changes that would otherwise allow the system to reform itself by learning from its mistakes. Finally, the appellate asymmetry arguably creates a situation in which rulings from lower court judges are much more likely to favor the defendant than the prosecution. All these problems could be resolved if double jeopardy protection were seriously rethought.

August 19, 2011 | Permalink | Comments (0)

Leong on Traffic Stops

Leong nancy Nancy Leong (University of Denver Sturm College of Law) has posted The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream on SSRN. Here is the abstract:

American culture is steeped in the mythology of the open road. In our collective imagination, the road represents freedom, escape, friendship, romance, and above all, the possibility for a better life. But our shared dream of the open road comes to a halt in the mundane reality of the traffic stop - a judicially-authorized policing procedure in which an officer may pull over a vehicle if she has cause to believe the driver has committed even the most minor traffic violation. This paper examines the cultural texts - books, movies, songs - celebrating the open road and juxtaposes them against those documenting the traffic stop. The traffic stop, I conclude, interrupts the open road narrative closely associated with the American dream. Those stopped most frequently - in particular, racial minorities - are consequently denied full participation in an abiding national fantasy.

August 19, 2011 | Permalink | Comments (0)