CrimProf Blog

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

Friday, April 1, 2011

Tomkovicz on the Right to Counsel

Tomkovitz james 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.

April 1, 2011 | Permalink | Comments (0)

Logan on Police Mistakes of Law

Logan wayne 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.

April 1, 2011 | Permalink | Comments (0)

Capers on Male Rape Victimization

Capers i bennett 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.

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April 1, 2011 | Permalink | Comments (0)

Thursday, March 31, 2011

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.

March 31, 2011 | Permalink | Comments (0)

Robinson on Coercive Indoctrination and "Rotten Social Background"

Robinson paul 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.

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March 31, 2011 | Permalink | Comments (0)

Wednesday, March 30, 2011

Pardo & Patterson on Neuroscience and Retributivism

Pardo michael 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.

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March 30, 2011 | Permalink | Comments (0)

Jacobi on the Law and Economics of the Exclusionary Rule

Jacobi tonja 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.

March 30, 2011 | Permalink | Comments (0)

Green on Prosecutors' Ethical Duty of Disclosure

Green bruce 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.

March 30, 2011 | Permalink | Comments (0)

Tuesday, March 29, 2011

Argument transcript in witness tampering case

The case is Fowler v. United States.

March 29, 2011 | Permalink | Comments (0)

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

The case is Tolentino v. New York.

March 29, 2011 | Permalink | Comments (0)

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.

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March 29, 2011 | Permalink | Comments (0)

Monday, March 28, 2011

Slobogin & Fondacaro on Juvenile Justice in Flux

Slobogin_big 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.

March 28, 2011 | Permalink | Comments (0)

Risinger & Risinger on Innocence and Criminal Procedure

Risinger_michael_lg2 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.

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March 28, 2011 | Permalink | Comments (1)

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

Burris_scott 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.

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March 28, 2011 | Permalink | Comments (0)

"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.

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March 28, 2011 | Permalink | Comments (1)

Sunday, March 27, 2011

Top-Ten Recent SSRN Downloads

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

Rank Downloads Paper Title
1 482 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

March 27, 2011 | Permalink | Comments (0)

Next week's criminal law/procedure argument

Issue summary is from ScotusBlog:


  • 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.

March 27, 2011 | Permalink | Comments (0)