CrimProf Blog

Allen on Rationality, the Law of Evidence, and the Nature of the Legal System

Ronald J. Allen (Northwestern University Law School) has posted Taming Complexity: Rationality, the Law of Evidence, and the Nature of the Legal System on SSRN. Here is the abstract:

This essay explores the implications of complexity for understanding both the law of evidence and the nature of the legal system. Among the propositions critically analyzed is that one significant way to understand the general problem of the meaning of rationality is that it has involved a multivariate search for tools to understand and regulate a hostile environment. The law of evidence is conceptualized as a subset of this effort, at least in part, as involving a search for tools to regulate the almost infinitely complex domain of potentially relevant evidence and at the same time to accommodate policy demands. The proposition is then considered that the legal system of which the evidentiary system is a part has emergent properties that may not be deducible from its component parts and that suggest that it may be, or at least has properties highly analogous to, a complex adaptive system. One implication of this analysis is that the tools of standard academic research that rely heavily on the isolation and reduction of analytical problems to manageable units to permit them to be subjected to standard deductive methodologies may need to be supplemented with analytical tools that facilitate the regulation of complex natural phenomena such as fluid dynamics. This has direct implications for such things as the conception of law as rules, and thus for the Hart/Dworkin debate that has dominated jurisprudence for 50 years. That debate may have mis-characterized the object of its inquiry , and thus the Dworkinian solution to the difficulties of positivism is inapplicable. Even if that is wrong, it can be shown that the Dworkinian solution is not achievable and cannot rationally be approximated. Solutions to legal problems within the legal system as a whole (as compared to any particular node within the legal system) are arrived at through a process of inference to the best explanation that occurs within a highly interconnected set of nodes that has similarities to a neural network.

Gardner on Relations of Responsibility

John Gardner (University of Oxford - Faculty of Law) has posted Relations of Responsibility on SSRN. Here is the abstract:

This draft contrbution to a fothcoming Festschrift for Antony Duff challenges his justly famous account according to which criminal responsibilty is doubly relational. It is relational in the sense that it is owed to someone; it is also relational in the sense that an existing relationship (citizen-country, guest-host, etc.) figures in justifying its being owed to that someone. I discuss the connection, in Duff's writings, between these views about responsibility and someof his views about authority. I suggest that, even according to Duff in less guarded moments, the normal justification for authority, and hence for criminal responsibility, is non-relational.

Du Toit & Pienaar on Corporate Criminal Liability

Pieter Du Toit and Gerrit Pienaar (North-West University and North-West University) have posted Corporate Identity as Foundation of the Criminal Liability of Legal Persons (1): Theoretical Principles (Potchefstroom Electronic Law Journal, Vol. 14, No. 1, 2011) on SSRN. Here is the abstract:

The different models for the criminal liability of juristic persons reveal a tension between individualist and realistic approaches. For individualists a corporation is the product of a union of individuals. This means that a juristic person can only be held criminally responsible if the conduct and fault of an individual involved in the entity are attributed to the juristic person. For realists a corporate entity has an existence independent of its individual members. The juristic person is blameworthy because its corporate identity or corporate ethos encouraged the criminal conduct. A study of organisational theory reveals that corporate crime may not necessarily be traced to the fault of specific individuals. Corporate criminality often is the result of complex decisions on different levels of the corporate hierarchy and furthermore is encouraged by the manner in which the organisation is structured. Prominent scholars such as the American philosopher Peter A French and the Australian Brent Fisse rejected an individualist approach and attempted to develop models of corporate fault based on the corporate identity idea. The failure of a corporation to take preventative or corrective measures in reaction to corporate criminal conduct is regarded as the basis for corporate fault by these authors. French calls this the "principle of responsive adjustment" whilst Fisse names it the concept of "reactive fault." A more sophisticated model (the "corporate ethos" model), which is also more reconcilable with the basic notions of criminal law, was developed by the American legal scholar Pamela Bucy.

A corporation will be held criminally responsible if its corporate ethos has encouraged the criminal conduct. The corporate ethos can be established with reference to numerous factors such as the corporate hierarchy, corporate goals, the existing monitoring and compliance systems and the question whether employees are rewarded or indemnified for inappropriate behavior.

Couture & Gerwick on Fungi and Fraud

Wendy Gerwick Couture (pictured) and B. Clifford Gerwick III (University of Idaho College of Law and affiliation not provided to SSRN) has posted The Evolutionary Biology of Fungi and Fraud (John Marshall Law Journal, Vol. V, No. 1, 2011) on SSRN. Here is the abstract:

In this essay, the authors – a law professor and a plant biologist – offer a fresh perspective on the use of broad federal fraud statutes to combat fraud by drawing a comparison with the use of multi-site fungicides to combat plant disease. Multi-site fungicides are effective at preventing the evolution of resistant strains of fungi, but they are subject to increased regulatory scrutiny amid concerns about off-target toxicity. Similarly, broad fraud statutes serve as a stopgap to prevent the evolution of new types of fraud, but they are widely criticized as unduly vague and as interfering with the operation of specific fraud statutes. Plant biologists’ successful alternatives to multi-site fungicides inform the discussion of alternative ways to combat fraud that avoid the problems associated with broad fraud statutes.

Seron & Pereira on Policing Police Misconduct

Carroll Seron and Joseph Pereira (University of California, Irvine School of Law; Department of Criminology, Law & Society and The Graduate Center, CUNY - Data Service) have posted Policing Police Misconduct in a Democratic Society: The Judgments of Police Officers and White, Black, and Hispanic Citizens on SSRN. Here is the abstract:

Almost since their inception, there have been calls for the reform of civilian review boards. Many of these reforms call for greater independence of review boards, including the authority to carry out discipline of police officers for corroborated cases of police misconduct. To date, however, there has been little empirical research on what constitutes reasonable discipline for an alleged case of police misconduct. We seek to fill in this gap in our understanding by comparing citizens’ and officers’ judgments of appropriate discipline for alleged misconduct. Using a factorial design, our findings show that there is a surprisingly strong level of consensus between citizens and officers about which evidence is most significant to weigh in reaching a judgment but that there is a lack of consensus between citizens and officers about the appropriate level of discipline. Not surprisingly, police officers’ judgments of fair punishment are significantly lower than their citizen counterparts. That said, citizens’ judgments are, these findings show, reasonable and fair in light of the alleged infraction. As steps are taken to reform civilian review procedures, the findings reported here provide an empirical foundation for developing disciplinary guidelines that takes account of a community’s understanding of what constitutes fair and reasoned discipline.

Medina on State Criminal Law and Immigration-Related Activity

M. Isabel Medina (Loyola University New Orleans - School of Law) has posted Symposium on Federalism at Work: State Criminal Law, Noncitizens and Immigration Related Activity - An Introduction on SSRN. Here is the abstract:

Over the course of the last few decades states have become much more aggressive about undertaking state regulation of undocumented migration. To some extent, states have pursued these efforts because of the perception that the federal government has not done enough to discourage or prevent undocumented migration. The federal government, however, since the early 1990s, has been devoting greater resources and attention to addressing the problem of undocumented migration.

Notwithstanding the federal focus on immigration enforcement, in the past decade, states have sought to play a more active role in immigration enforcement and, in particular, in deterring or punishing undocumented or unauthorized migration. To some extent, federal immigration law facilitates cooperative state initiatives in law enforcement undertaken under federal supervision. Many state legislatures or municipalities unsatisfied with federal efforts, however, have gone further and enacted statutes that regulate immigration related activities or the status of being an undocumented or unauthorized non-citizen. One example is the ordinance adopted by the City of Hazleton, which among other things prohibited landlords from knowingly letting, leasing or renting a dwelling unit to an "illegal alien" and prohibited employment of undocumented aliens. Courts have enjoined the ordinance as preempted by federal law.

More recently, states have enacted statutes that impose criminal sanctions on a variety of immigration related activity. Perhaps the most famous of these initiatives is Arizona’s SB 1070. A similar bill was introduced before the Louisiana legislature recently. That bill was unsuccessful but "at least one Louisiana legislator has promised to introduce a similar statute for adoption in Louisiana."

This symposium at Loyola University New Orleans College of Law examined the role that state criminal law has or should have in the context of immigration, immigration related activities and unauthorized or undocumented migration.

Tanguay-Renaud on Individual Emergencies

François Tanguay-Renaud (Osgoode Hall Law School - York University) has posted Individual Emergencies and the Rule of Criminal Law (RETHINKING CRIMINAL LAW THEORY: NEW CANADIAN PERSPECTIVES IN THE PHILOSOPHY OF DOMESTIC, TRANSNATIONAL, AND INTERNATIONAL CRIMINAL LAW, F. Tanguay-Renaud and J. Stribopoulos, eds., Hart Publishing, 2011) on SSRN. Here is the abstract:

The paper discusses various accommodations that ought to be made in the substantive criminal law to account for the challenges that individual emergencies may pose to the legitimacy of its rule. I address specific puzzles related to emergency-related reason/fact-relative justifications, evidence-relative justifications, and excuses. The paper also includes a discussion of the status of morality in the face of individual emergencies, as well as of the rule and authority of criminal law. I conclude by differentiating the challenges posed by individual and more generalised emergencies.

"Supreme Court Speaks About Willful Blindness"

Ellen Podgor at White Collar Crime Prof Blog discusses language of interest to the criminal practitioner from a recent civil patent infringement case, Global-Tech Appliances, Inc. v. SEB S.A.

Bandes on Connick v. Thompson

Susan A. Bandes (University of Miami - School of Law) has posted The Lone Miscreant, the Self-Training Prosecutor, and Other Fictions: A Comment on Connick v. Thompson (Fordham Law Review, Vol. 80, 2012) on SSRN. Here is the abstract:

In Connick v. Thompson, the Supreme Court in a 5-4 decision blocked one of the last remaining paths to prosecutorial accountability for the violation of constitutionally mandated discovery obligations under Brady v. Maryland. The upshot of Connick is that unless non-compliance is frequent and notorious enough to reach the level of custom, prosecutors’ offices are insulated from Section 1983 liability - entity as well as individual - for failing to comply with Brady. The immediate effect of Connick is to leave John Thompson without a remedy for spending 18 years in prison, narrowly escaping execution for a crime he didn’t commit, while members of the New Orleans Parish District Attorney’s office concealed the evidence that would ultimately exculpate him.

Dahlia Lithwick called Connick v. Thompson "one of the meanest Supreme Court decisions ever." The opinion is "mean" not only in the sense in which she uses the word - coldhearted and without acknowledgement of the human costs of the wrongoing - but in its grudging interpretation of the constitutional violation at issue, its reductionist notions of what a training regime can accomplish, and its stark indifference to the deterrent, compensatory and declaratory aims of Section 1983. Connick reveals the relentlessly atomistic lens through which a majority of the current Court views governmental obligations - both those of the prosecutor and those of the Court itself.

This article will first challenge the central assumption on which Justice Thomas relied in vacating the opinion below: that Thompson’s harm can be traced to only a single incident of governmental misconduct by a lone miscreant. It argues that the violation was a group effort, as well as a reflection of a longstanding office culture of disregard for Brady. Second, it will critique the Court’s conception of training, arguing that the nature of prosecutorial culture in particular and organizational culture more generally makes training essential. And finally, it will argue that the Court’s atomistic vision of Section 1983 and of its own role in remedying constitutional wrongs is at odds with the aims of the statute it sets out to construe.

Lan on China's Malleable Criminal Procedure Law

Rongjie Lan (Zhejiang University) has posted A False Promise of Fair Trials: A Case Study of China's Malleable Criminal Procedure Law (Pacific Basin Law Journal, Vol. 27, p. 101, 2010) on SSRN. Here is the abstract:

China revised its Criminal Procedure Law in 1996 adopting an adversarial-style trial model and granting remarkable procedural safeguards to the accused. Many have been tempted to conclude that this new law is capable of ensuring fair trials for criminal defendants and thus could improve China’s record of human rights protection.

This article will argue that, despite some progresses in formality, the new law has been poorly implemented and has failed to fulfill its promise of fair trials. This article will examine two high profile cases in detail to demonstrate how procedural safeguards prescribed by the new law are frequently manipulated by judges, either to pursue efficiency and convenience or to accommodate outside influences such as political concerns, public outrage, personal friendship, or even bribes. These manipulations have caused the essence of fair trials intended to be created by the 1996 law to be largely nonexistent in modern proceedings, while at the same time allowing interferers to freely produce wrongful verdicts and disproportionate sentences.

The reality is that many of these problems are caused by institutional flaws in China’s criminal justice system, particularly the absence of a responsible judiciary. However, instead of pinning hopes for reform on unrealistic constitutional changes, this article proposes a technical approach that focuses on restructuring the 1996 law to make criminal trials less vulnerable to manipulation and interference. This technical solution would help to ensure fair trials by relying on the procedure itself, rather than on unreliable judges.

Today's criminal law/procedure cert grant

Issue summary is from ScotusBlog:

• Perry v. New Hampshire: Do the Due Process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as some courts have held, or only when teh suggestive circumstances were orchestrated by the police?


Opinion in material witness/immunity case

The case is Ashcroft v. al-Kidd. Here is the syllabus:

Respondent al-Kidd alleges that, after the September 11th terrorist attacks, then-Attorney General Ashcroft authorized federal officials to detain terrorism suspects using the federal material-witness statute, 18 U. S. C. §3144. He claims that this pretextual detention policy led to his material-witness arrest as he was boarding a plane to Saudi Arabia. To secure the warrant, federal officials had told a Magistrate Judge that information “crucial” to Sami Omar al-Hussayen’s prosecution would be lost if al-Kidd boarded his flight.Prosecutors never called al-Kidd as a witness, and (as he alleges) never meant to do so. Al-Kidd filed suit pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, challenging the constitutionality of Ashcroft’s alleged policy. The District Court denied Ashcroft’s motion to dismiss on absolute and qualified immunity grounds. The Ninth Circuit affirmed, holding that the Fourth Amendment prohibits pretextual arrests absent probable cause of criminal wrongdoing, and that Ashcroft could not claim qualified or absolute immunity.

Held:

1. The objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive. Pp. 3–9.

(a) Qualified immunity shields a government official from money damages unless (1) the official violated a statutory or constitutional right, and (2) that right was “clearly established” at the time of the challenged conduct. Harlow v. Fitzgerald, 457 U. S. 800, 818. Where, as here, a court considers both prongs of this inquiry, this Court has the discretion to correct the lower court’s errors at each step. P. 3.

(b) Whether a detention is reasonable under the Fourth Amendment “is predominantly an objective inquiry.” Indianapolis v. Edmond, 531 U. S. 32, 47. Courts ask whether “the circumstances,viewed objectively, justify [the challenged] action.” Scott v. United States, 436 U. S. 128, 138. Except for cases that involve special needs, e.g., Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 653, or administrative searches, e.g., Michigan v. Clifford, 464 U. S. 287, 294, this Court has almost uniformly rejected invitations to probe subjective intent. The Court of Appeals was mistaken in believing that Edmond established that “ ‘programmatic purpose’ is relevant to Fourth Amendment analysis of programs of seizures without probable cause.” 580 F. 3d 949, 968. It was not the absence of probable cause that triggered Edmond’s invalidating-purpose inquiry, but the checkpoints’ failure to be based on “individualized suspicion.” 531 U. S., at 47. Here a neutral Magistrate Judge issued a warrant authorizing al-Kidd’s arrest, and the affidavit accompanying the warrant application gave individualized reasons to believe that he was a material witness who would soon disappear. A warrant based on individualized suspicion grants more protection than existed in most of this Court’s cases eschewing inquiries into intent, e.g., Whren v. United States, 517 U. S. 806, 813, and Terry v. Ohio, 392 U. S. 1, 21–22. Al-Kidd’s contrary, narrow reading of those cases is rejected. Because he concedes that individualized suspicion supported the issuance of the material-witness arrest warrant; and does not assert that his arrest would have been unconstitutional absent the alleged pretext; there is no Fourth Amendment violation here. Pp. 3–9.

2. Ashcroft did not violate clearly established law and thus is entitled to qualified immunity. A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, “[t]he contours of [a] right [are] sufficiently clear” that every “reasonable official would have understood that what he is doing violates that right.” Anderson v. Creighton, 483 U. S. 635, 640. Here, the asserted constitutional right falls far short of that threshold. At the time of al-Kidd’s arrest, not a single judicial opinion had held that pretext could render an objectively reasonable arrest pursuant to a
material-witness warrant unconstitutional. The Ninth Circuit’s reliance on a District Court’s footnoted dictum, irrelevant cases from this Court, and the Fourth Amendment’s broad purposes and history is
rejected. Because Ashcroft did not violate clearly established law, the question whether he enjoys absolute immunity need not be addressed. Pp. 9–12.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined. KENNEDY, J., filed a concurring opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined as to Part I. GINSBURG, J., filed an opinion concurring in the judgment, in which BREYER and SOTOMAYOR, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in the judgment, in which GINSBURG and BREYER, JJ., joined. KAGAN, J., took no part in the consideration or decision of the case.

Cassell & Erez on Victim Impact Statements and Ancillary Harm

Paul G. Cassell (pictured) and Edna Erez (University of Utah - S.J. Quinney College of Law and University of Illinois at Chicago) have posted Victim Impact Statements and Ancillary Harm: The American Perspective (Canadian Criminal Law Review, Vol. 15, p. 149, 2011) on SSRN. Here is the abstract:

A recent article by Julian Roberts and Marie Manikis argues that the concept of “ancillary harm” explains why victim impact statements are useful at sentencing. Drawing on a recent decision from the Quebec Court of Appeals, they contend that impact statements help a judge assess foreseeable harm caused to a victim’s family member and others – “ancillary harm” – for which the defendant is properly held accountable under conventional retributive principles.

In this response, we bring an American perspective to bear on these issues, finding much in the American crime victims’ literature and court decisions to support the Robert-Manikis thesis. For example, at the recent sentencing of Bernie Madoff, the sentencing judge referenced ancillary harm as an important factor. A number of cases have reached similar conclusions. While not using the phrase “ancillary harm” to justify their actions, the court decisions make clear that foreseeable harm to others is an important consideration at sentencing. The American cases also support a crime victim having a right to deliver a victim impact statement not only in writing, but also orally at the sentencing hearing itself. Crime victims, however, should not be cross-examined when delivering their statement. Instead, the court should insure the reliability of information contained in a victim impact statement in other ways, as a number of decisions recognize.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	567	The Law Enforcement Surveillance Reporting Gap Christopher Soghoian, Indiana University Bloomington - Center for Applied Cybersecurity Research, Date posted to database: April 11, 2011
2	446	Fetal Pain, Abortion, Viability and the Constitution I. Glenn Cohen, Sadath Sayeed, Harvard Law School, Harvard University - Harvard Medical School, Date posted to database: April 11, 2011
3	291	Why Courts Should Not Quantify Probable Cause Orin S. Kerr, George Washington University - Law School, Date posted to database: March 30, 2011
4	286	Nothing to Hide: The False Tradeoff between Privacy and Security Daniel J. Solove, George Washington University Law School, Date posted to database: May 11, 2011 [5th last week]
5	264	FCPA Sanctions: Too Big to Debar? Drury D. Stevenson, Nicholas J. Wagoner, South Texas College of Law, South Texas College of Law, Date posted to database: April 18, 2011 [4th last week]
6	257	The Objects of the Constitution Nicholas Quinn Rosenkranz, Georgetown University - Law Center, Date posted to database: May 20, 2011 [new to top ten]
7	224	Making Padilla Practical: Defense Counsel and Collateral Consequences at Guilty Plea Gabriel J. Chin, University of Arizona James E. Rogers College of Law, Date posted to database: April 16, 2011 [6th last week]
8	201	Is it Finally Time to Put 'Proof Beyond a Reasonable Doubt' Out to Pasture? Larry Laudan, Instituto de Investigaciones Filosoficas, UNAM, Date posted to database: April 21, 2011
9	186	In Defense of Tax Privacy Joshua D. Blank, New York University School of Law, Date posted to database: March 31, 2011
10	175	Mental Torture: A Critique of Erasures in U.S. Law David J. Luban, Henry Shue, Georgetown University Law Center, University of Oxford, Date posted to database: March 30, 2011