June 27, 2011
Manning on Photographers' Rights and Law Enforcement
Morgan Leigh Manning has posted Less than Picture Perfect: The Legal Relationship between Photographers' Rights and Law Enforcement (Tennessee Law Review, Vol. 78, p. 105, 2010) on SSRN. Here is the abstract:
Threats to national security and public safety, whether real or perceived, result in an atmosphere conducive to the abuse of civil liberties. History is littered with examples: The Alien and Sedition Acts of 1798, the suspension of habeas corpus during the Civil War, the Palmer Raids during World War I, and McCarthyism in the aftermath of World War II.Unfortunately, the post-9/11 world represents no departure from this age-old trend. Evidence of post-9/11 tension between national security and civil liberties is seen in the heightened regulation of photography; scholars have labeled it the "War on Photography" - a conflict between law enforcement officials and photographers over the right to take pictures in public places. A simple Google search reveals countless incidents of overzealous law enforcement officials detaining or arresting photographers and, in many cases, confiscating their cameras and memory cards, despite the fact that these individuals were in lawful places, at lawful times, partaking in lawful activities.
This article examines the so-called War on Photography and the remedies available to those who have been unlawfully detained, arrested, or have had their property seized for taking pictures in public places or private places open to the public. It discusses recent incidents that highlight the growing infringement of photography rights and the magnitude of the harm that law enforcement officials have inflicted, paying particular attention to the themes these events have in common. It explores the existing legal framework surrounding photography rights and the federal and state remedies available to those whose rights have been violated. It examines the adequacy of each remedy including: (1) declaratory and injunctive relief, (2) Section 1983 and Bivens actions, and (3) state tort remedies. It discusses the obstacles associated with each remedy and the reasons why these obstacles are particularly hard to overcome in the context of photography. It then argues that most, if not all, of the remedies discussed are either inadequate or altogether impractical considering the costs of litigation. Lastly, this article will discuss the reasons why people should be concerned about the War on Photography and possible ways to reverse the erosion of photography rights.
Pritikin & Ross on Underenforcement of Corporate and White-Collar Fines and Penalties
Martin H. Pritikin (pictured) and Ezra Ross (Whittier Law School and affiliation not provided to SSRN) have posted The Collection Gap: Underenforcement of Corporate and White-Collar Fines and Penalties (Yale Law & Policy Review, Vol. 29, p. 453, 2011) on SSRN. Here is the abstract:
Civil and criminal monetary sanctions (fines, penalties, and restitution orders) are primary tools in the enforcement activities of the modern administrative state, particularly in the context of corporate wrongdoing. Although the enforcement literature debates the fairness and efficiency of imposing corporate sanctions, once imposed, those sanctions must be collected to be effective. Yet federal and state agencies are leaving untold billions in collectible fines unrecovered. This is a problem of both theoretical and practical importance, yet it has been largely overlooked. This Article, for the first time, amasses the evidence of pervasive governmental undercollection; rebuts the argument that the problem is due to factors beyond governmental control; examines the root causes of undercollection; and recommends solutions that address the political and economic circumstances that impede reform.
Today's criminal law/procedure cert grants
Issue summaries are from ScotusBlog, which links to papers and opinions below:
- Martel v. Clair: Whether a condemned state prisoner in federal habeas corpus proceedings is entitled to replace his court-appointed counsel with another court-appointed lawyer just because he expresses dissatisfaction and alleges that his counsel was failing to pursue potentially important evidence.
- Messerschmidt v. Millender: (1) Whether police officers are entitled to qualified immunity when they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her? (2) Whether United States v. Leon, 468 U.S. 897 (1984), and Malley v. Briggs, 475 U.S. 335 (1986), should be reconsidered or clarified?
- United States v. Jones: 1)Whether the warrantless use of a tracking device on petitioner’s vehicle to monitor its movements on public streets violated the Fourth Amendment. 2) Whether the government violated the respondent’s Fourth Amendment rights by installing the tracking device without a valid warrant and without his consent.
"Jury Finds Blagojevich Guilty of Corruption"
From the New York Times:
The jury — 11 women and 1 man — took 10 days to reach their decision. The jury in the first trial deliberated for 14 days.
After that trial, jurors said the case had been too tangled and confusing, and it was clear that prosecutors took that message to heart. In the new trial, which began in April, prosecutors offered fewer, simpler charges, a notably boiled-down message, and a emphasis on the thought that Mr. Blagojevich did not need to actually complete any deals to be found guilty of crimes for proposing them.
. . .
In a defense that some non-Chicagoans might have understandably viewed as closer to a confession, Mr. Blagojevich insisted that his favorite idea was not a financial or job trade at all, but a raw political exchange: He explained to jurors that he really wanted to appoint Lisa Madigan, the state’s attorney general, to the Senate seat in exchange for help in getting his legislative agenda passed by her powerful father, Michael Madigan, the speaker of the Illinois House.
But federal prosecutors said many of his ideas — even though they never actually came to pass — were illegal. Whether he completed the deals or not really did not matter, they said. “The law focuses on ‘the ask’ not on whether there was a receipt,” Carrie Hamilton, an assistant United States attorney, told jurors in a closing argument.
Lie Detection and the Technological Look-Back Principle (Kolber)
This week, I will be reprinting some criminal-law-related posts that I wrote during my last guest stint at Prawfsblawg.com. Here is the first:
Over the last decade, neuroscientists have made significant strides toward using various brain imaging techniques to determine when a subject is lying. The research is still at early stage, however, and has principally involved rather artificial experimental settings (e.g., college students instructed to lie about the suit of a playing card). If you ask most neuroscientists, they will say that we are quite far from having an all-purpose technique that can provide admissible evidence in court. Indeed, a couple of courts have already refused to admit brain imaging evidence of credibility/deception (see Wilson, Semrau).
In my view, the test of whether we should admit some technology in court depends on whether, by introducing the technology, we achieve better outcomes overall. That's a very difficult determination to make. It depends on the quality of the science, the ability of judges and jurors to interpret the science, financial costs associated with the technology, various risks of abuse, and so on. And there is a fair question about what legal standard judges should use to achieve our overarching goal. But surely, as Fred Schauer points out, the technology need not be perfect to be helpful in real world forensic settings.
Even if we are still a long way away from developing reliable lie detectors, there is a substantial probability that we will have reasonably good lie detectors within the next thirty years. Those prospects should arguably change our behavior even today. For in thirty years, we can surely ask you about your conduct over the course of your lifetime: Have you ever cheated on your taxes? Have you ever cheated on your spouse? Did you bury the body by the river?
Under what I describe here (at p.603-04--UPDATED) as the technological "look-back principle," we should already consider the privacy protections we are likely have in the future in order to decide how to behave today. (At least until we develop good means of forgetting what we already know!)
Of course, not all of our privacy interests are amenable to legal regulation. Nothing will stop your lover from testing your fidelity in a brain scanner as a condition of continuing the relationship. Many campaigning politicians already disclose their tax returns, even when they have no legal obligation to do so. Perhaps, someday, politicians will agree to be scanned while they answer questions like: Have you ever knowingly misreported campaign funds? Have you ever accepted a bribe? Did you bury the body by the river? No doubt many criminal offenders were surprised by the look-back potential of DNA. Perhaps we'll all be taken by surprise, someday, by the look-back potential of lie detectors.
June 26, 2011
Hamilton on Involuntary Actions and PTSD
Melissa Hamilton (University of South Carolina - School of Law) has posted Reinvigorating Actus Reus: The Case for Involuntary Actions by Combat Veterans with Post-Traumatic Stress Disorder (Berkeley Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
In common law, criminal culpability rests on two basic foundations of criminal intent, or mens rea, and a voluntary act, which comprises the actus reus. While much of the litigation in criminal cases concerns assigning the appropriate mens rea concept to the particular defendant’s mental state, relatively little debate focuses on the element of actus reus. Indeed, case law and commentators generally have devoted scant attention to fleshing out the voluntary act concept despite the historical consensus of both utilitarians and retributivists that one should not be considered morally or legally culpable for his or her involuntary actions. This paper conceptualizes an overall need to reinvigorate the actus reus requirement as a fundamental principal of criminal culpability. It does so by employing a contemporary problem facing the criminal justice system of combat veterans with Post-Traumatic Stress Disorder (PTSD) who commit acts of unlawful violence, including homicide, either in reflexive actions or during dissociative states triggered by re-experiencing combat-related stresses. While the veterans are often convicted of criminal offenses, studies on PTSD substantively support an argument that such violence may actually be conceptualized as automatism and, therefore, should not qualify as voluntary acts justifying criminal culpability. For example, mental health professionals describe PTSD as a neuropsychiatric disorder that involves hypervigilance, and hyperreactivity. Modern combat training is a likely correlate with its emphasis on muscle memory and reflexive responsiveness in the use of lethal weapons, which are adaptive, survival behaviors in the field of battle. The relationship to automatism is also evident in that PTSD is not merely a cognitive disorder as studies have shown PTSD-related alterations to brain structure and function and neurophysiological performance. Thus, this contemporary problem of PTSD in veterans due to wartime service provides a fresh perspective on which to reconsider the importance of the voluntary act requirement of criminal law.
Turner on Bargaining in Weak Cases
Jenia Iontcheva Turner (Southern Methodist University (SMU) - Dedman School of Law) has posted Prosecutors and Bargaining in Weak Cases: A Comparative View
(TRANSNATIONAL PERSPECTIVES ON PROSECUTORIAL POWER, Erik Luna, Marianne Wade, eds., Oxford University Press, 2011) on SSRN. Here is the abstract:
One of the most controversial uses of prosecutorial discretion in plea bargaining concerns cases involving weak evidence of guilt. When a prosecutor bargains about the charges or even the facts in a case with weak evidence, at least three problems may arise. First, if the charge bargain is generous, it may coerce an innocent defendant to plead guilty. Second, such a bargain may let a guilty defendant off too easily, thus disserving the public and victim’s interests. Third, if the parties bargain about the facts, the result may distort the truth of the case.
In this book chapter, I examine how three major legal systems—those of the United States, Germany, and Japan—approach these potential problems. To do so, I discuss how prosecutors in these systems would resolve a hypothetical criminal case involving weak evidence. I have chosen to compare the United States, Germany, and Japan because of their distinct approaches to both plea bargaining and prosecutorial discretion. In the United States, prosecutors have largely unfettered discretion in both charging and plea bargaining. Germany allows a form of sentence bargaining that involves both the prosecutor and the judge, but sharply limits prosecutorial discretion with respect to charging and prohibits charge and fact bargaining. Japan does not allow any explicit bargaining, but gives prosecutors broad discretion to refrain from filing charges.
After describing the relevant differences in the prosecutors’ role in these countries, I raise several questions about the proper approach for prosecutors in evidentially weak cases. While none of the systems I discuss has a perfect solution to the problem of factually weak cases, the comparison may encourage us to rethink three key features of American-style plea bargaining: our practice of aggressive charge bargaining, particularly in cases where the evidence is weak; the lack of limits on plea discounts; and the limited external and internal review of prosecutorial charge bargaining decisions.
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