CrimProf Blog

Tomkovicz on the Right to Counsel

James J. Tomkovicz (University of Iowa - College of Law) has posted  Sacrificing Massiah: Confusion Over Exclusion and Erosion of the Right to Counsel on SSRN. Here is the abstract:

"Sacrificing Massiah" examines the legitimacy and impacts of Kansas v. Ventris’s explanation of the Massiah "exclusionary rule." It first traces the cryptic development of Massiah’s right to counsel-based suppression doctrine through a series of post-Massiah opinions. It then discusses Ventris - the first definitive explanation of the justifications for barring admissions deliberately elicited from uncounseled defendants. The Ventris Court classified Massiah suppression as a mere deterrent safeguard designed to prevent pretrial counsel deprivations and denied that defendants have the personal right not to be convicted based on uncounseled admissions. This understanding of Massiah is contrary to the original conception of exclusion. More important, it is irreconcilable with the nature of the pretrial assistance guarantee that is Massiah’s foundation. It ignores the core reasons for a right to pretrial assistance - to preserve a fair adversarial process and guard the accused against courtroom consequences of imbalanced clashes. Ventris rests on the indefensible premises that pretrial assistance exists for its own sake, that constitutional harm is inflicted only before trial, and that damage to an accused’s chances for acquittal at trial is not the constitutional concern. The article proffers reasons why the Court might have arrived at this entirely misguided conception, including: uncritical, monolithic thinking about "exclusionary rules;" palpable, abiding hostility toward constitutional suppression doctrines that defeat the search for truth; and dissatisfaction with Massiah’s extension of the right to counsel’s assistance. Finally, the article discusses the pragmatic consequences of Ventris’s vision, concluding that constraints imposed on Fourth Amendment exclusion will surely be imposed on Sixth Amendment suppression. As a result, the right to counsel "exclusionary rule" will be hobbled in ways that would be impossible were the true "constitutional right" character of Massiah’s evidentiary bar acknowledged. Ventris’s legacy - an array of "exclusionary rule" restrictions - will, in fact, threaten the vitality of the fundamental right to counsel itself.

Logan on Police Mistakes of Law

Wayne A. Logan (Florida State University - College of Law) has posted Police Mistakes of Law (Emory Law Journal, Vol. 61, 2012) on SSRN. Here is the abstract:

This Article addresses something that most Americans would consider a constitutional impossibility: police officers stopping or arresting individuals for lawful behavior and courts deeming such seizures reasonable for Fourth Amendment purposes, thereby precluding application of the exclusionary rule. Today, however, an increasing number of courts excuse what they consider “reasonable” police mistakes of law, typically concerning petty offenses, and permit evidence secured as a result to support prosecutions for actual yet more serious offenses (usually relating to guns or drugs). The Article surveys the important rule of law, separation of powers, and legislative accountability reasons supporting continued judicial adherence to the historic no-excuse position. In so doing it illuminates the central role that police play as interpreters - not merely enforcers- of the law, a role to date ignored by courts and commentators.

Capers on Male Rape Victimization

I. Bennett Capers (Hofstra University - School of Law) has posted Real Rape Too (California Law Review, Vol. 99, 2011) on SSRN. Here is the abstract:

As a society, we have been largely indifferent to the prevalence of male rape victimization. In the prison context, we dismiss it as par for the course, as "just deserts," or worse yet, as a rarely stated but widely known component of deterrence. We treat prisons as invisible zones, as zones without law, as zones that need not concern us. Outside the prison context, our response is no better. We tell ourselves male rape victimization is a rarity, or perhaps something that only happens to gay men. In short, we render male victim rape invisible, or at least un-articulable. This Article renders male victim rape visible.

This Article is also a critique of unjust silence and unjust talk. It is a critique of the unjust silence surrounding male rape victimization that permeates legal scholarship about rape. And it is a critique of the unjust talk about the specter of male rape that permeates self-defense and provocation cases. The Article argues that re-conceptualizing rape as a gender-neutral crime might help advocates of rape law reform forge new alliances. It posits that addressing the reality of male victim rape can help us rethink the very real harm of rape. And it demonstrates that incorporating the reality of male victimization can have profound implications for rethinking the law of rape.

What motivates this Article is the underlying belief that rape has been gendered for too long. Originally, it was gendered in a way that tilted the scales to benefit men: men as fathers, men as husbands, and men as rapists. Feminists were right to point out the sexism inherent in traditional rape laws in this country. Though many, including Catherine MacKinnon, were wrong to view rape as solely a mechanism of male domination of women. But the real problem is this: In arguing for reform, feminist scholars have legitimized and contributed to the very gender distinctions of which they have been so critical. In response to one form of subordination, they have entrenched another. Many rape statutes have been reformed so that they are gender neutral, but how we apply those laws is still very much gendered. As a consequence, male victims have suffered. But more broadly, the law of rape has suffered. And it shows.

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.