CrimProf Blog

Davies on the Constitution and Common Law Arrest and Search

Thomas Y. Davies (University of Tennessee College of Law) has posted Can You Handle the Truth? The Framers Preserved Common-Law Arrest and Search Rules in 'Due Process of Law' - 'Fourth Amendment Reasonableness' is Only a Modern, Destructive, Judicial Myth (Texas Tech Law Review, Vol. 43, pp. 51-136, 2010) on SSRN. Here is the abstract:

The conventional academic account of Fourth Amendment (or search and seizure) history has been shaped by uncritcal acceptance of claims in Supreme Court opinions that the reference to "unreasonable searches and seizures" in that text was intended to created a broad "reasonableness" standard for assessing all government arrests and searches, whether made with or without warrant. This article marshals salient evidence from the author’s more detailed prior articles to demonstrate that this claim is merely a prochronistic myth that grossly understates the criminal procedure standards the American Framers thought they had preserved.

The article first describes the actual common-law standards for criminal arrests and related searches to show that mere "reasonableness" was never recognized as a standard in framing-era sources. It also documents that the accusatory common-law criminal arrest standards were actually understood to be salient features of the "law of the land" and "due process of law" protections set out in other constitutional provisions, and that criminal search authority was essentially an appendage of arrest authority. Thus there was neither room nor reason for the Fourth Amendment to address warrantless arrests or searches, or even criminal arrest warrants. Rather, the only unsettled search issue at the time of the framing was the scope of legislative authority regarding revenue search warrants, so the Fourth Amendment was framed simply to ban Congress from authorizing use of too-loose warrants for revenue searches of houses, while the Fifth Amendment due process of law clause preserved criminal procedure standards. (Along the way, the article identifies deficiencies in recent historical claims by Professors Fabio Arcila (notes 122, 204) and Thomas Clancy (note 225).)

The article then describes how nineteenth century judges destroyed the original understanding of due process of law and thus left federal Supreme Court justices free to reinvent modern "search and seizure" doctrine under the Fourth Amendment, to invent the concept of Fourth Amendment reasonableness in the 1925 Carroll decision to justify warrantless searches where lawful arrests could not be made, and more recently to exploit the flexible character of reasonableness to effectively create discretionary police arrest and search authority comparable to that conferred by the general warrant which the original Fourth Amendment was meant to abolish.

Berry on Promulgating Proportionality

William W. Berry III (University of Mississippi School of Law) has posted Promulgating Proportionality (Georgia Law Review, Vol. 46, 2011) on SSRN. Here is the abstract:

Two lines of cases have dominated the Supreme Court’s Eighth Amendment death penalty jurisprudence: the Furman-Gregg line of cases emphasizes the need to adopt rules to eliminate the arbitrariness inherent in unguided capital sentencing by juries, while the Woodson-Lockett line of cases emphasizes the opposite concern - the need for juries to make individualized sentencing determinations - highlighting the inadequacy of rules.

At first glance, these competing aims create some internal tension, if not outright conflict. In his concurrence in Walton v. Arizona, Justice Scalia argued that this conflict was irreconcilable: “[t]he latter requirement [individualized factual determinations] quite obviously destroys whatever rationality and predictability the former requirement [limitations on jury discretion] was designed to achieve...” And the Court has done little to reconcile this conflict. Indeed, in Kennedy v. Louisiana, Justice Kennedy recently stated, “this case law...is still in search of a unifying principle.”

This article attempts to provide just that - a unifying principle - through the concept of “proportionality.” As herein construed, proportionality requires that the applicable punishment be commiserate with the crime in both a relative and absolute sense. Using this principle, the article develops a framework by which to apply the Court’s Eighth Amendment jurisprudence, incorporating both lines of cases in a way that alleviates the inherent tension of pursuing the competing goals of general consistency and case-specific consideration.

This article, then, argues that the Supreme Court ought to apply the Eighth Amendment in capital cases solely in terms of two distinct types of proportionality - absolute and relative. Specifically, the model requires that the state court (and jury) determine the issue of absolute proportionality first, narrowing the individuals eligible for the death penalty using case-specific mitigating facts. The state courts (typically through appellate review) must then determine the issue of relative proportionality, further narrowing the cases in which the offender is eligible to receive capital punishment.

Part I of the article describes the “problem” - the apparent tension between the Furman-Gregg arbitrariness principle and the Woodson-Lockett individualized determination principle. In Part II, the article defines the concept of proportionality, describing both its absolute and relative forms. In Part III, the article articulates a new model for implementing the Eighth Amendment that solves the Walton “problem.” Finally, in Part IV, the article demonstrates how proportionality can serve as the unifying principle for the Court’s capital jurisprudence.

Shen & Jones on Brain Scans as Evidence

Francis X. Shen and Owen D. Jones (pictured)(Vanderbilt Law School and Vanderbilt University - Law School & Department of Biological Sciences) have posted Brain Scans as Evidence: Truths, Proofs, Lies, and Lessons (Mercer Law Review, Vol. 62, 2011) on SSRN. Here is the abstract:

This contribution to the Brain Sciences in the Courtroom Symposium identifies and discusses issues important to admissibility determinations when courts confront brain-scan evidence. Through the vehicle of the landmark 2010 federal criminal trial U.S. v. Semrau (which considered, for the first time, the admissibility of brain scans for lie detection purposes) this article highlights critical evidentiary issues involving: 1) experimental design; 2) ecological and external validity; 3) subject compliance with researcher instructions; 4) false positives; and 5) drawing inferences about individuals from group data. The article’s lessons are broadly applicable to the new wave of neurolaw cases now being seen in U.S. courts.

Shen et al on Culpability and the MPC

Francis X. Shen (pictured), Morris B. Hoffman , Owen D. Jones , Joshua D. Greene and Rene Marois (Vanderbilt Law School , Second Judicial District (Denver), State of Colorado , Vanderbilt University - Law School & Department of Biological Sciences , Harvard University, Depatment of Psychology and Vanderbilt University - Department of Psychology) have posted Flipping the Culpability Coin: Where the Model Penal Code Fails Defendants (New York University Law Review, Vol. 80, 2011) on SSRN. Here is the abstract:

Punishable guilt requires that bad thoughts accompany bad acts. For this reason, we regularly ask jurors to infer the past mental state of a person they do not know as he acted in ways they did not see. Although this is difficult enough, the heavily influential Model Penal Code (MPC) demands even more. It requires that jurors sort guilty defendant mental states into one of four specific categories, which in turn define the nature of both the crime and the punishment.

The MPC therefore assumes that average people either naturally do – or at least can, when instructed – sort mental states into these four categories with reasonable accuracy. It also assumes that average people will rank order these categories of mental state, by increasing amount of punishment, in the same sequence that the MPC prescribes.

Remarkably, the MPC – now turning 50 – has escaped the scrutiny of comprehensive empirical research on the accuracy of these and other assumptions that underlie the fundamental structure of its culpability determinations. The new studies reported here tested the validity of certain key MPC assumptions. The findings demonstrate that several critical assumptions embedded in the MPC, and reflected in our societal faith in it, are simply wrong.

Given the dynastic influence of the MPC, the disjunctions we report between crucial MPC assumptions and the reality of juror decision making have serious implications for criminal justice and should prompt consideration of possible reforms.

Shatz & Shatz on Gender and the Death Penalty

Steven F. Shatz (pictured) and Naomi R. Shatz (University of San Francisco - School of Law and New York Civil Liberties Union) have posted Chivalry is Not Dead: Murder, Gender, and the Death Penalty on SSRN. Here is the abstract:

Chivalry - that set of values and code of conduct for the medieval knightly class - has long influenced American law, from Supreme Court decisions to substantive criminal law doctrines and the administration of criminal justice. The chivalrous knight was enjoined to seek honor and defend it through violence and, in a society which enforced strict gender roles, to show gallantry toward "ladies" of the same class, except for the women of the knight's own household, over whom he exercised complete authority. This article explores, for the first time, whether these chivalric values might explain sentencing outcomes in capital cases. The data for the article comes from our original study of 1299 first degree murder cases in California, whose death penalty scheme accords prosecutors and juries virtually unlimited discretion in making the death-selection decision. We examine sentencing outcomes for three particular types of murder where a "chivalry effect" might be expected - gang murders, rape murders and domestic violence murders. In cases involving single victims, the results were striking. In gang murders, the death sentence rate was less than one-tenth the overall death sentence rate. By contrast, in rape murder cases, the death sentence rate was nine times the overall death sentence rate. The death sentence rate for single-victim domestic violence murders was roughly 25% lower than the overall death sentence rate. We also examined, through this study and earlier California studies, more general data on gender disparities in death sentencing and found substantial gender-of-defendant and gender-of-victim disparities. Women guilty of capital murder are far less likely than men to be sentenced to death, and defendants who kill women are far more likely to be sentenced to death than defendants who kill men. We argue that all of these findings are consistent with chivalric norms, and we conclude that, in the prosecutors' decisions to seek death and juries' decisions to impose it, chivalry appears to be alive and well.

"Dozens of Cases to Be Dropped In San Francisco Police Scandal"

From The New York Times:

SAN FRANCISCO — With a group of undercover police officers under suspicion of perjury and conducting illegal searches, the San Francisco district attorney said Wednesday that his office would drop dozens of drug and robbery cases and continue to investigate scores more for possible dismissal.

. . .

[The District Attorney] made his announcement even as federal agents continued to investigate the actions of a group of officers based in the city’s Southern Station, a downtown precinct that includes pockets of residential hotels.

It was in two of these hotels, notorious for drug use and sales, where officers were videotaped using questionable methods. In one case involving a heroin arrest in January, an officer covers the lens of a surveillance camera while three other officers approach a room and order the resident to open the door before pushing their way in, allegedly without a warrant, according to the public defender’s office. A police report stated that the woman had voluntarily let the officers into her home.

Bonnie on Personality Disorder and Insanity

Richard J. Bonnie (University of Virginia - School of Law) has posted Should a Personality Disorder Qualify as a Mental Disease in Insanity Adjudication? (Journal of Law, Medicine and Ethics, Vol. 38, 2010) on SSRN. Here is the abstract:

The determinative issue in applying the insanity defense is whether the defendant experienced a legally relevant functional impairment at the time of the offense. Categorical exclusion of personality disorders from the definition of mental disease is clinically and morally arbitrary because it may lead to unfair conviction of a defendant with a personality disorder who actually experienced severe, legally relevant impairments at the time of the crime. There is no need to consider such a drastic approach in most states and in the federal courts, where the sole test of insanity is whether the defendant was - unable to appreciate the wrongfulness of his conduct at the time of the offense. This is because the only symptoms that are legally relevant in such jurisdictions are those that impair reality-testing and thereby affect the person’s capacity to understand the nature and consequences of her actions. However, if the test of insanity includes a - volitional prong‖ (inability to control one’s behavior), some way must be found to limit the scope of the defense to the core cases (involving psychotic conditions) to which it has traditionally been applied, and to prevent a shift toward a deterministic account of criminal conduct - i.e., "people can't help being who they are and doing what they do." The best way of accomplishing this is to limit the definition of mental disease to severe disorders characterized by gross disturbances of the person’s capacity to understand reality.

"Illinois Governor Signs Capital Punishment Ban"

From The New York Times:

Illinois became the 16th state to ban capital punishment as Gov. Pat Quinn on Wednesday signed an abolition bill that the state legislature passed in January.

“Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it,” Mr. Quinn said in a statement.

Holley on Private Searches of Computers

Benjamin Holley has posted Digitizing the Fourth Amendment: Limiting the Private Search Exception in Computer Investigations (Virginia Law Review, Vol. 96, p. 677, 2010) on SSRN. Here is the abstract:

The “Private Search” exception to the Fourth Amendment allows law enforcement officers to re-create, without a warrant, a search conducted by a private individual, provided two conditions are met. First, the individual may not act at the behest of the government (the agency prong) and second, officers may not search beyond what was already discovered by the private searcher (the scope prong). The exception is premised on the theory that the private searcher destroyed whatever expectation of privacy the suspect had in his information, thereby eliminating any Fourth Amendment protection. In applying this otherwise well-understood exception to searches of computers, however, courts have adopted widely varying approaches based on divergent assumptions and leading to dramatically different results. This Note argues that, because of the nature of computer storage, courts should narrow the application of the private search exception by broadly interpreting the “agency” prong and narrowly interpreting the “scope” prong. Such an approach maintains the purpose of the exception without unduly sacrificing informational privacy or law enforcement efficacy.

Sarma on Race and Jury Selection

Bidish Sarma (The Justice Center's Capital Appeals Project) has posted When Will Race No Longer Matter in Jury Selection? (Michigan Law Review First Impressions, Vol. 109, 2011) on SSRN. Here is the abstract:

We are coming upon the twenty-fifth anniversary of the Supreme Court's opinion in Batson v. Kentucky, which made clear that our Constitution does not permit prosecutors to remove prospective jurors from the jury pool because of their race. The legal question in Batson - when, if ever, can governmental race discrimination in jury selection be tolerated? - was easy. The lingering factual question, however - when will prosecutors cease to discriminate on the basis of race? - has proven far more difficult to answer. The evidence that district attorneys still exclude minorities because of their race is so compelling that it is tempting to assume that race will always factor into lawyers' decisions about whom to keep on the jury and whom to exclude. Yet, until the Supreme Court holds lower courts accountable when they fail to meaningfully enforce the protections of Batson, we cannot know if the law goes far enough, and race will continue to permeate jury selections. Only when the law is properly enforced will we be able to determine if Justice Thurgood Marshall's observation was correct:

The Court's opinion also ably demonstrates the inadequacy of [requiring] "justice...sit supinely by" and be flouted in case after case before a remedy is available...The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.

Brooks on Legal Retributivism

Thom Brooks (Newcastle University - Newcastle Law School) has posted Punishment: Political, Not Moral on SSRN. Here is the abstract:

Alan Brudner’s Punishment and Freedom is a remarkable contribution to liberal and penal theory offering a well-argued and compelling theory of “legal retributivism.” This theory is an improved account of retributivism as alternative retributivist theories are thought to incorporate a problematic view of morality which only legal retributivism can overcome. While I agree with much of Brudner’s Hegelian-inspired account, I believe that it could be even further protected from problems facing retributivist theories more generally if he took greater account of insights into penal theory offered by British Hegelians. This article will explain what these insights are and how they might usefully inform Brudner’s legal retributivism and further increase its attractiveness.

Harris on Natapoff on Snitching

David A. Harris (University of Pittsburgh - School of Law) has posted Book Review - Snitching: Criminal Informants and the Erosion of American Justice (Criminal Justice, Vol. 25, No. 1, p. 44, 2010) on SSRN. Here is the abstract:

In this brief essay, David Harris reviews Snitching: Criminal Informants and the Erosion of American Justice, by Alexandra Natapoff (New York University Press, 2009). This excellent new book is long overdue. It exposes the use of informants by American law enforcements in all of its tawdry detail, and explains how these practices exact a substantial cost, working against many of the stated objectives of the justice system. These costs include the loss of respect for police and the law itself, the shredding of the social fabric that binds neighborhoods together, and the fact that snitching allows many criminals to remain free, committing more crimes and continuing to victimize law-abiding citizens. Natapoff makes solid suggestions for reform, including the gathering and dissemination of data that would tell the public just how widespread these practices are.

Annitto on Criminalizing Sexually Exploited Minors

Megan Annitto (West Virginia University College of Law) has posted Consent, Coercion, and Compassion: Crafting a Commonsense Approach to Commercial Sexual Exploitation of Minors (Yale Law & Policy Review, Forthcoming) on SSRN. Here is the abstract:

Within 48 hours of running away or being thrown out, a child on the streets will typically be approached for sex in exchange for money or lured into a situation leading to exploitation. There are competing theories about the prosecution of youth for prostitution who are subject to commercial sexual exploitation, or domestic minor sex trafficking, in the United States. Recent developments in juvenile courts and legislatures endeavor to create appropriate responses to eliminate contradiction in the laws. Some states recognize that statutory rape and federal trafficking laws conflict with the prosecution of children for their own exploitation, but most do not. This leaves large numbers of minors charged as criminals and with little access to appropriate medical and psychological care. Related gender and adolescent capacity issues are implicated in this lack of coherence in the law and underlie the current failures. The issue is best understood in light of recent changes in judicial and legislative discourse. There is a split in the two states whose highest courts have ruled on this issue, resulting in a landmark decision by the Texas Supreme Court. In addition, emerging state legislation has taken a new direction to harmonize laws dictating the legal status of these children as survivors in need of treatment instead of as offenders. The Illinois model – the first one of its kind – recently decriminalized children under age 18 who are prostituted, ensuring that they are not treated as criminals under any circumstances. While other state statutory frameworks exist, without clear language, statutes intended to assist children risk being undermined. Legislation that addresses prostitution of youth must be carefully constructed and contain funding provisions in order to have the necessary intended effects. It should focus on comprehensive services with a critical eye on the important distinctions between diversion measures that allow for continued prosecution versus decriminalization. These new judicial and legislative developments provide a model and framework by which states can create effective and consistent responses to the commercial sexual exploitation of minors instead of criminalizing them.

Cassidy on Plea Bargaining, Discovery, and Impeachment

Michael Cassidy (Boston College Law School) has posted Plea Bargaining, Discovery and the Looming Battle over Impeachment Evidence (Vanderbilt Law Review, Forthcoming) on SSRN. Here is the abstract:

In a criminal justice system where guilty pleas are the norm and trials the rare exception, the issue of how much discovery a defendant is entitled to before allocution has immense significance. This article examines the scope of a prosecutor’s obligation to disclose impeachment information before a guilty plea. This question has polarized the criminal bar and bedeviled the academic community since the Supreme Court’s controversial decision in United States v. Ruiz (2002). A critical feature of the debate has been the enduring schism between a prosecutor’s legal and ethical obligations – a gulf that the American Bar Association recently widened by issuing a controversial opinion interpreting Model Rule of Professional Conduct 3.8(d) to impose obligations on prosecutors well beyond the requirements of the due process clause.

For reasons of institutional competence and legitimacy, the author argues that rules of criminal procedure are a far better vehicle for regulating pre-plea impeachment disclosures than state attorney conduct rules. As the Advisory Committee on Criminal Rules convenes this year to contemplate controversial amendments to the Federal Rules of Criminal Procedure with regard to the disclosure of exculpatory evidence, the author proposes a categorical approach to impeachment disclosures that will mediate the tension between the defendant’s interest in accurately assessing the strength and weaknesses of the government’s case, and the state’s interest in protecting the privacy and security of potential witnesses.

First on the Corporation in Business Crime Prosecutions

Harry First (New York University (NYU) - School of Law) has posted Branch Office of the Prosecutor: The New Role of the Corporation in Business Crime Prosecutions (North Carolina Law Review, Vol. 89, p. 23, 2010) on SSRN. Here is the abstract:

This article describes the evolution of the public corporation's role in the criminal justice process - from potential defendant to "branch office of the prosecutor," partnering with the government in investigating business crime - and assesses the impact of this evolution on criminal justice policy.

The first part of the article describes the branch-office role, tracing its development back to the 1970s, and shows how it has come to be routine for public corporations to assist prosecutors in their investigations.

The second part discusses the implications of this shift in institutional role. The article first argues that the public corporation's branch-office role is likely to be durable because it benefits both corporations and prosecutors, effectively exploiting the misalignment of interests between the corporation and its employees and providing substantial efficiency gains to prosecutors. The article next examines the effect of this new role on legal rules, arguing that the protections of the corporate attorney-client privilege should not be increased nor constitutional constraints imposed when the corporation is acting in its branch-office role. The article then examines the potential effect of the new role on prosecutors' willingness to bring criminal charges against corporations and, ultimately, on deterrence in business crime cases. The article argues that the danger of this new role lies primarily in these areas. The new branch-office role, with its tools of amnesty, agreements not to prosecute, and agreements to defer prosecution, provides a middle ground for prosecutors between declination and prosecution. This middle ground may prove overly attractive to prosecutors, increasing their ability to prosecute corporate executives, but cutting down on first-offense prosecutions against corporations, likely the most critical for deterring corporations from committing business crimes. Although pursuing criminal charges against executives and employees can certainly be an effective deterrent to business crime, it is not a sufficient one. A credible threat of corporate criminal liability is necessary to assure overall deterrence, as well as to assure that corporations continue to have an incentive to play this important branch-office role in investigating complex business crime cases.

de Jong on Theorizing Criminal Intent

Ferry de Jong (Utrecht University School of Law) has posted Theorizing Criminal Intent: A Methodological Account (Utrecht Law Review, Vol. 7, No. 1, pp. 1-33, January 2011) on SSRN. Here is the abstract:

This article examines the nature of the concept of criminal intent. The analysis of this concept is grounded on the recognition that the concept constitutes a juridical particularization of the very basic, pre-legal notion of intentionality. On the basis of a number of phenomenological and hermeneutical insights, it is concluded that intent is essentially a bivalent concept: it is characterized by both subject-intrinsic and subject-extrinsic properties. In this context, the intersubjective, interpretative accessibility of subjective intentional utterances is discussed ('normativisation'). Moreover, it is argued that the nature of criminal intent is characterized by a second bivalent feature: intent both parallels and deviates from its pre-legal counterpart. The distance between both concepts is explained in terms of a teleological account of the function of the criminal law system in society. In order to realize the different purposes that the criminal law system is taken to serve, it needs concepts whose semantic scope is outlined to a sufficient degree of precision. It is argued that the criminal law cannot afford for its concept of intent to become too alienated from the pre-legal concept of intention of which it forms a particularization. Criminal intent is to be regarded as a pivoting point between the doctrinal world of the criminal law and the intersubjective life-world. The principle of legality provides the key to answering the question of how the criminal law - if it is to live up to its claim to legitimate authority - should safeguard a sufficiently firm connection between its concept of intent and the everyday concept of intention.

Millemann on Maryland's Death Penalty Revisions

Michael A. Millemann (University of Maryland - School of Law) has posted Limiting Death: Maryland's New Death Penalty Law (Maryland Law Review, Vol. 70, No. 1, p. 272, 2010) on SSRN. Here is the abstract:

In this Article, I describe and analyze the State of Maryland's 2009 death penalty law. This law adds three new death-eligibility criteria to the pre-existing law. These new evidentiary criteria supplement the pre-existing substantive death-eligibility criteria. As a result, Maryland now has one of the most restrictive death penalties in the country.

Corn on the Missing Miranda Warning

Geoffrey S. Corn (South Texas College of Law) has posted The Missing Miranda Warning: Why What You Don’t Know Really Can Hurt You on SSRN. Here is the abstract:

Miranda – at least the core rule that statements made by suspects in response to custodial interrogation are admissible in the prosecution’s case-in-chief only following a knowing and voluntary waiver of the Miranda rights – has survived decades of attacks. While the “stormy seas” the decision navigated produced a wake of academic study of the wisdom of the decision, little attention has been focused on an equally logical question: did Miranda go far enough? If, as the Miranda Court emphasized, the purpose of Miranda’s warnings was to ensure criminal suspects were provided a meaningful opportunity to exercise their privilege against self-incrimination, why has Miranda never debilitated law enforcement in the ways predicted when the decision was handed down?

Three apparent answers emerge. First (as Justice Scalia periodically asserts), perhaps waiver and confession by a criminal suspect is a natural, logical, and laudable action motivated by contrition and the desire to accept responsibility for criminal wrongdoing – a natural product of human catharsis. This conclusion is suspect. If true, the interrogation techniques on which police routinely rely to obtain confessions (albeit after a valid Miranda waiver) would generally be unnecessary; suspects would be inclined to confess of their own immediate volition. Second, perhaps the whittling away of the breadth of the Miranda decision by subsequent jurisprudence has rendered Miranda a practical nullity? This explanation is equally unlikely considering most confessions are obtained in the traditional custodial interrogation environment where compliance with Miranda remains a requirement for admissibility of these confessions. Third, perhaps the Miranda warnings never truly achieved their intended objective: to restore confidence that a suspect’s decision to cooperate during a police interrogation is the product of his own decision and not governmental coercion. If the purpose of the warnings was to educate a criminal suspect of his inconsequential right to refuse to assist the government in establishing his guilt, perhaps suspects do not clearly and completely understand that right?

This article will assert that, contrary to the criticism that Miranda was overly protective of the rights of criminal suspects, the warnings required by that decision are in fact not protective enough. This accounts for the reality that most criminal suspects waive their rights and facilitate their own convictions. More specifically, this article will assert that, from the outset of the warning and waiver requirement established by the Miranda decision, what is perhaps the most important warning has never been required: that silence in the face of an allegation is never incriminating. This “missing” Miranda warning is, in the opinion of the author, perhaps the most important warning a suspect confronted with custodial interrogation requires to meaningfully exercise the privilege against self-incrimination, and yet it is the one warning that has never been required. Without this warning, the suspect is left to fear the instinctual expectation that silence in the face of accusation will be inferred by the accuser as guilt. Without being informed of the constitutional prohibition against such inferential guilt, the suspect is left to choose between standing on the right to silence and “looking guilty,” or attempting to explain to the accuser why the accusation is erroneous. When considered from this perspective, it becomes easily understandable why a suspect would choose to enter into a dialogue with the interrogator, even knowing full well “anything said or done can be used against you in a court of law.” In short, unless the suspect understands that saying nothing cannot be used against him, the risk that what he does say may be used against him seems far less significant.

This underinclusiveness is a necessary consequence of any rule of presumption, and does not in the abstract justify abandoning Miranda and reverting back to the case-by-case voluntariness test it effectively replaced. Acceptance of this consequence has been a central theme of all post-Miranda jurisprudence. However, tolerance is not synonymous with the conclusion that underinclusiveness is unavoidable. Instead, the recognition of underinclusiveness warrants consideration of whether it is genuinely inevitable and unavoidable, or whether it is the result of a defect in the method used to strike the balance Miranda sought to achieve? If the answer is the latter, then considering how Miranda should be adjusted is both logical and appropriate. Perhaps because Miranda has been under attack since its inception, this question has received virtually no consideration. What calibrations could Miranda’s presumptive rule undergo to mitigate some of its natural underinclusiveness?

This article will address this question. First, it will review the purpose for the Miranda warning and waiver requirement. Second, it will consider how the established warnings left criminal suspects vulnerable to the influence of an adverse inferential perception of guilt, resulting from silence in the face of allegation. Third, it will discuss the proclivity of criminal suspects to waive their Miranda rights. Fourth, it will discuss incongruity between the absence of a no adverse inference warning and the prohibitions of exploiting a suspect’s silence at trial. The article will then propose how adding this missing Miranda warning would more effectively align the original purposes of Miranda with the prophylactic actually used to protect the free exercise of the privilege against self-incrimination and, in so doing, create symmetry between the investigatory and trial phases of criminal prosecution.

Joy & McMunigal on Deceit in Defense Investigations

Peter A. Joy (pictured) and Kevin C. McMunigal (Washington University School of Law and Case Western Reserve University - School of Law) have posted Deceit in Defense Investigations (Criminal Justice, Vol. 25, No. 3, Fall 2010) on SSRN. Here is the abstract:

Prosecutors and police routinely employ misrepresentation and deceit in undercover investigations. In cases ranging from drug distribution, prostitution, and sexual misconduct with minors to organized crime and terrorism, police and those cooperating with police deceive suspects and their cohorts about their identities and their intentions in order to gain information to help uncover past crimes and thwart future crimes. Frequently, such deceit helps reveal the truth about what criminals do and think.

May defense lawyers and investigators working for them employ similar tactics? Or should prosecutors be the only lawyers allowed to direct and supervise investigatory deception? In recent years, both debate and a divergence of views on this question have emerged. In this column we examine that debate, the arguments raised on both sides of it, and how various jurisdictions have answered this question.

Rasch on Forfeiture of Article III Review of Magistrate Judges

Meehan Rasch has posted Rethinking Appellate 'Waiver' Rules: Forfeiture of Article III Review of Magistrate Judges and Federal Rule of Criminal Procedure 59’s Post-Olano Language Problem (Chapman Journal of Criminal Justice, Spring 2011) on SSRN. Here is the abstract:

In 1985, the U.S. Supreme Court held in Thomas v. Arn that a federal court of appeals may establish a rule that failure to file objections to a magistrate judge’s report and recommendations "waives" both the right to further review by the district court and the right to appeal the judgment to the court of appeals. The Arn majority determined that such a rule did not remove the essential attributes of the judicial power from the Article III court or elevate non-life-tenured magistrate judges to the functional equivalents of Article III judges. Rather, loss of the right to any Article III review through failure to object to a magistrate judge’s report and recommendations merely constituted a nonjurisdictional "procedural default," similar to failure to pay an appellate filing fee or failure to file an appeal before an internal court deadline. The Court emphasized that discretionary appellate review “in the interest of justice” remained available.

Despite describing such a rule as a "procedural default," the Arn Court consistently used the term "waiver" throughout the opinion to describe the operation of the rule. Many circuits - although not all - adopted analogous rules under their own supervisory powers, and in 2005 an Arn-type rule became codified as Federal Rule of Criminal Procedure 59. Similar to Arn, Rule 59 established for criminal matters that failure to timely object to a magistrate judge’s decision "waives a party’s right to review."

However, in the twenty-year span between the Arn decision and the promulgation of Rule 59, the 1993 U.S. Supreme Court case of United States v. Olano carved out a special meaning for the word "waiver." The Olano Court established that there is a procedural and substantive distinction between waiver - "the intentional relinquishment or abandonment of a known right" - and forfeiture - "the failure to make the timely assertion of a right." Substantively, waiver fully extinguishes any error, precluding any form of review, whereas "mere" forfeiture means that an error, which is clear and affects substantial rights, remains potentially reversible under plain error review.

Failing to timely object is the paradigm example of forfeiture, and Thomas v. Arn’s "interest of justice" discretion has been held equivalent to review for plain error. Accordingly, "waiver" is an inapt description of the default rules authorized by Arn, despite the initial use of "waiver" in the Arn Court’s opinion, before Olano had specifically construed the term. By using the language of "waiver" post-Olano, Rule 59 semantically insinuates that every avenue of review, even plain error review, is foreclosed by the failure to timely file objections to a magistrate judge’s report and recommendations. As such, the language of Rule 59 obfuscates the actual availability of plain error review. The parameters of appellate "waiver" rules demand greater clarity, particularly to the extent that this misleading choice of words subtly disrupts the constitutional rationale for magistrate judge adjudication, which rests on the presumption, at minimum, of some level of review by a life-tenured Article III judge. Among other conclusions, this Article recommends a change in the language of Rule 59 to more accurately reflect the current limits of appellate "waiver" for failure to timely object to a magistrate judge’s report and recommendations, and to aid the future constitutional analysis of magistrate judge adjudication.