July 22, 2011
McDonald & Tinsley on Alternative Ways of Giving Evidence by Vulnerable Victims
Elisabeth McDonald (pictured) and Yvette Tinsley (Victoria University of Wellington - Faculty of Law and Victoria University of Wellington - Faculty of Law) have posted
Use of Alternative Ways of Giving Evidence by Vulnerable Witnesses: Current Proposals, Issues and Challenges (Victoria University of Wellington Law Review, Forthcoming) on SSRN. Here is the abstract:
Fifteen years after the Law Commission’s rejection of pre-trial recording of cross-examination, it is back on the reform agenda. Drawing from research examining comparative pre-trial and trial practices in cases of sexual offending, this article discusses the backdrop to the debate surrounding pre-recording, including the provisions of the Evidence Act 2006 and the approach of the courts to alternative ways of giving evidence. The benefits and drawbacks of pre-trial recording of evidence for adult witnesses are canvassed – including practical, evidential and psychological issues – leading to the conclusion that rather than a presumption in favour of any particular alternative way of giving evidence, close consideration of the individual circumstances of each case is required.
Block & McGee on Blackmail
Walter E. Block (Loyola University New Orleans - Joseph A. Butt, S.J. College of Business) has posted two manuscripts on SSRN, one co-authored with Robert W. McGee (Florida International University (FIU) - School of Accounting). The co-authored piece is Blackmail as a Victimless Crime. Here is the abstract:
The legal theory of blackmail is the veritable puzzle surrounded by a mystery wrapped in an enigma. Consider. Blackmail consists of two things, each indisputably legal on their own; yet, when combined in a single act, the result is considered a crime. What are the two things? First, there is either a threat or an offer. In the former case, it is, typically, to publicize on embarrassing secret; in the latter, it is to remain silent about this information. Second, there is a demand or a request for funds or other valuable considerations. When put together, there is a threat that, unless paid off, the secret will be told.
Either of these things, standing alone, is perfectly legal. To tell an embarrassing secret is to do no more than gossip. To ask for money is likewise a legitimate activity, as everyone from Bill Clinton to the beggar to the fundraiser for the local charity can attest. Yet when combined, the result is called blackmail and it is widely seen as a crime.
The other article is A Libertarian Theory of Blackmail. Here is the abstract:
This article will attempt to analyze the law prohibiting blackmail from a libertarian perspective. Libertarianism is a political philosophy; as such, it is a theory of the just use of violence. From this viewpoint, the just use of violence is essentially defensive: one may employ force only to repel an invasion; only to protect one’s person or property from external threat, and for no other reason.
July 21, 2011
Love on Collateral Consequences after Padilla v. Kentucky
Margaret Colgate Love has posted Collateral Consequences after Padilla v. Kentucky: From Punishment to Regulation (St. Louis Public Law Review, Vol. 30, 2011) on SSRN. Here is the abstract:
This Article analyzes the scope of Padilla v. Kentucky, concluding that its logic extends beyond deportation to many other severe and certain consequences of conviction that are imposed by statute or regulation rather than by the sentencing court. It proposes a set of reforms that would limit the disruptive effect of these co-called “collateral consequences” on the guilty plea process, and make a defense lawyer’s job easier. Part I describes a case currently pending in the Pennsylvania Supreme Court that may yield some important clues about how broadly the Padilla doctrine will be applied to status-generated consequences other than deportation. At issue in Commonwealth v. Abraham is whether a lawyer should have warned his client, a retired public school teacher, that pleading guilty to a misdemeanor sex offense would result in the permanent forfeiture of his vested pension benefits. Part II looks at the collateral consequences doctrine as applied by the courts before Padilla to demonstrate its weakness in the Sixth Amendment context. It then examines the Padilla decision itself and its progeny to date, and proposes a test for determining when a lawyer should be constitutionally required to notify a client about a particular statutory or regulatory consequence of conviction. It concludes that the pension forfeiture at issue in Abraham meets that test. Part III proposes three non-constitutional reforms “to complete Padilla’s unfinished business” where the substance of plea agreements is concerned. The goal of these reforms is to minimize the extent to which harsh categorical sanctions destabilize the plea process on which the justice system has come to depend. Using principles set forth in the ABA Criminal Justice Standards, the article recommends that jurisdictions should 1) compile and disseminate information about collateral sanctions; 2) eliminate those sanctions that are disproportionately severe or bear only a tenuous relationship to the crime; and 3) provide timely and effective ways to avoid or mitigate the sanctions that remain. These reforms will not only shore up the plea system, they will propel a move away from a punitive model of collateral consequences that is frequently self-defeating and unfair, to one that can be justified in both moral and utilitarian terms.
Medwed on Summations in Criminal Trials
Daniel S. Medwed (University of Utah - S.J. Quinney College of Law) has posted Closing the Door on Misconduct: Rethinking the Ethical Standards That Govern Summations in Criminal Trials (Hastings Constitutional Law Quarterly, Vol. 38, No. 4, 2011) on SSRN. Here is the abstract:
Closing argument is a pivotal moment in a criminal trial. It represents the last opportunity for prosecutors to convince jurors of the defendant’s guilt and for defense lawyers to show reasonable doubt. As a result, criminal lawyers may be tempted to conclude with sweeping arguments that pull at the heartstrings of their target audience, the jury. Scholars dating back to Aristotle have warned that the most persuasive arguments often contain an appeal to emotion – and that emotionally laden rhetoric can distract people from making rational choices.
Legal ethicists have struggled with the issues surrounding closing arguments, trying to reconcile the need to stamp out overly-emotional appeals with the desire to empower advocates to summarize the evidence as forcefully and creatively as they wish. These efforts have fallen short. The American Bar Association (“ABA”) Task Force to Revise the Prosecution and Defense Standards has set out to change this circumstance. The Task Force has submitted proposed revisions to the Standards Committee of the ABA (“Proposed Standards”). The Standards Committee has responded to the Task Force’s proposals related to prosecutors’ summations, and plans to address the defense standards in the near future.
Part I of this Essay discusses the ABA’s ethical standards governing closing arguments as they currently stand, highlighting their advantages and disadvantages. Next, Part II analyzes the proposed amendments to those standards. Part III then considers some questions that remain unanswered.
Engel & Pluta on Prosecutorial Abuse of Vague Crimes
Christoph Engel and Alicja Katarzyna Pluta (Max Planck Institute for Research on Collective Goods and Columbia Business School - Management) has posted The People’s Hired Guns? Experimentally Testing the Inclination of Prosecutors to Abuse the Vague Definition of Crimes on SSRN. Here is the abstract:
Legal realists expect prosecutors to be selfish. If they get the defendant convicted, this helps them advance their careers. If the odds of winning on the main charge are low, prosecutors have a second option. They can exploit the ambiguity of legal doctrine and charge the defendant for vaguely defined crimes, like “conspiracy”. We model the situation as a signalling game and test it experimentally. If we have participants play the naked game, at least a minority plays the game theoretic equilibrium and use the vague rule if a signal indicates that the defendant is guilty. This becomes even slightly more frequent if a misbehaving defendant imposes harm on a third participant. By contrast if we frame the situation as a court case, almost all prosecutors take the signal at face value and knowingly run the risk of loosing in court if the signal was false. Our experimental prosecutors behave like textbook legal idealists, and follow the urge of duty.
July 20, 2011
Baradaran & McIntyre on Race and Prediction
Using a large and thorough dataset on felon arrests in the U.S., we find that the large racial gaps in the hold rates for pretrial release are explained by the racial gap in the probability of rearrest before trial for a violent crime. We find little evidence that the hold gap is related to enforcing drug laws. We find no evidence that black defendants are more likely to be rearrested for a violent crime, given that they commit one, thus the rearrest rate appears to be a valid tool for judges to use. We also consider, and reject, that the race results are spuriously driven by selection bias from using released inmates only to compute the probability of rearrest.
Faunce on Assisted Suicide, Juries and the Discretion to Prosecute
Thomas Alured Faunce (Australian National University) has posted Justins v. the Queen: Assisted Suicide, Juries and the Discretion to Prosecute (Journal of Law and Medicine, Vol. 18, pp. 706-715, 2011) on SSRN. Here is the abstract:
Juries are often a crucial protection for citizens against unjust or highly controversial laws. The decision whether to proceed with a prosecution rests on the discretionary powers of prosecutors. In cases where the community is deeply divided over right and wrong, it appears that there is, at times, a transference from the public of thwarted law reform aspirations which can create difficult tensions and expectations. This case commentary considers an appeal by Shirley Justins following her conviction for manslaughter by gross criminal negligence as a result of her involvement in the mercy killing of her partner, Mr Graeme Wylie. The morally unsettled nature of the charges brought against her, her own initial plea, the directions given to the jury by the trial judge and even the basis of her appeal resulted in a convoluted and complicated legal case. Spigelman CJ and Johnson J ordered a new trial, Spigelman CJ stating that it was open for a new jury to consider (a) if Mr Wylie lacked capacity; and (b) whether there was criminal involvement by one person in another’s death. Simpson J found that further prosecution on the count of manslaughter would amount to an abuse of process and that an acquittal should be entered. This case highlights how fundamentally unsettled are the publicly much debated and persistently contentious issues of euthanasia, assisted suicide, the right of a person to die a digniﬁed death and the way their capacity in that respect should be assessed. It perhaps asks us to reconsider the role of juries and the exercise of discretion by Directors of Public Prosecutions in areas of law where the community and law-makers are deeply and intractably divided.
Laurin on Policing Police Technology
Jennifer E. Laurin (University of Texas School of Law) has posted Policing Police Technology: The False Hope of Fourth Amendment Adjudicatory Oversight on SSRN. Here is the abstract:
In the context of a SEALS Discussion Group concerning technology and the Fourth Amendment, this short essay explores why even the most elegantly drawn decision rules for applying the Fourth Amendment in today’s technological age will be rendered moot by a pervasively diminished remedial regime reflected in the Court’s recent Fourth Amendment jurisprudence – in particular the exclusionary rule decisions in Herring v. United States, Davis v. United States, and a series of constitutional tort decisions deepening the protection of qualified immunity and narrowing the scope of municipal liability. It concludes that efforts at refashioning the substance of Fourth Amendment doctrine will ultimately bear little fruit in the functional project of constitutional adjudication – though they may be essential to important task of building a popular and political culture of valuing the Fourth Amendment.
July 19, 2011
Baude on Actual Innocence
How can it be an open question whether it is constitutional to execute the innocent? But the issue of "actual innocence" is more complex than our intuition suggests.
Taslitz on Collateral Consequences
Andrew E. Taslitz (Howard University - School of Law) has posted Destroying the Village to Save It: The Warfare Analogy (or Dis-Analogy?) and the Moral Imperative to Address Collateral Consequences (Howard Law Journal, Vol. 54, p. 501, 2011) on SSRN. Here is the abstract:
This paper is the introduction to a Howard Law Journal symposium on collateral consequences. To set the stage for the symposium, the paper examines the strengths and weaknesses of the analogy drawn between "collateral damage" in armed warfare and "collateral consequences" in the war on crime. The paper argues that these similarities and differences - which turn on concepts of certainty, particularity, and reciprocity of the harm - highlight the moral need to reform the law's treatment of collateral consequences. The paper concludes by summarizing the symposium articles and placing them into a framework that supports and illustrates the paper's main conclusions.
Fan on Subconscious Racial Impact on Police
Mary Fan (University of Washington) has published a review of a forthcoming article by L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95 Minn. L. Rev. __ (forthcoming 2011)(available at SSRN) at Jotwell. In part:
Applying insights from the research on implicit social cognition to policing is salutary. For the officers who hunker down when faced with what feels like another accusation, I hope we can translate implicit bias research in a way that fosters receptivity toward understanding and ameliorating subconscious impact. Perhaps it may help to avoid the term bias, which could shut down the will to listen because it may sound like another personalized accusation. The power of implicit social cognition research is to depersonalize blame, showing how subconscious impact may be a cultural problem, and how people who genuinely believe themselves to be acting nobly may exert subconscious impact. As lawyers, particularly criminal lawyers, we are all too good at pointing fingers. But to progress, perhaps the better approach is to emerge from the posture of fierce polarization and defensiveness and find ways to more accurately see and understand each other.
July 18, 2011
Mason et al. on Risk and Compensation of Cross-Border Drug Couriers
Caleb E. Mason , David Bjerk and Scott Lesowitz (Southwestern Law School , Claremont Colleges - Robert Day School of Economics and Finance and affiliation not provided to SSRN) have posted The Market for Mules: Risk and Compensation of Cross-Border Drug Couriers on SSRN. Here is the abstract:
This paper uses a unique dataset collected directly from the probable cause narratives filed by federal agents in arrests of individuals caught smuggling drugs though the U.S.-Mexico border to shed light on the cross-border smuggling of drugs from Mexico into the United States. In addition to describing the characteristics of the loads being smuggled into the U.S., we analyze the pay apprehended mules report for attempting to carry their loads across the border to determine whether market forces create a wage premium for differential sentencing risk. Our results reveal that while there is a good deal of unexplained variation in compensation, mules generally appear to be paid compensating wage differentials for loads that carry a higher sentencing risk if detected and for loads that carry an arguably higher likelihood of detection. Our data also reveal that compensation does not appear to be strongly tied to other characteristics of the mule such as gender or citizenship.
DeAngelo et al. on Deterability by Age
Gregory J. DeAngelo , Shawn D. Bushway and Benjamin Hansen (Rensselaer Polytechnic Institute (RPI) - Department of Economics , University at Albany and University of Oregon) have posted Deterability by Age on SSRN. Here is the abstract:
There is a growing cost-benefit conversation about the best policy strategies to prevent crime (e.g. Donohue and Siegelman, 1998; Durlauf and Nagin, 2011; Cook, Ludwig, and McCrary in press). Part of this conversation focuses on identifying the best strategies for preventing crime by particular population sub-groups. This conversation mirrors developments in criminology, where the discussion has changed from a “what works” mentality to a “what works for whom” mentality. One of the most meaningful subgroups for this discussion is adolescents and young adults, who are responsible for a large percentage of overall crime. For example, people in the 15 to 24 age group account for 14% of the population but 40% of all arrests reported to the Uniform Crime Reporting system in 2009 (Crime in the United States, 2009, Table 38). The aim of the current research is to examine the role that age plays, if any, when changes in the legal environment are not age specific. In short, we find that an exogenous reduction in the likelihood of being apprehended results in a uniform augmentation in the egregiousness of the criminal activity (regardless of age). However, we do not find evidence to support a hypothesis of age-driven egregiousness of criminal activity. Instead, we find that all age groups respond quasi-uniformly to reductions in their likelihood of being apprehended.
Rosenthal on religious speech and counterterrorism
This essay responds to Professor Aziz Huq's provocative article, "The Signaling Function of Religious Speech in Domestic Counterterrorism." Professor Huq contends that current counterterrorist doctrine overemphasizes the use of religious speech as a "signal' for incipient terrorist violence. He argues that the costs of this approach for religious liberty are significant, and its reliability suspect. Professor Huq's assessment of costs, however, overlooks that current doctrine permits only initiation of an investigation on the basis of religous speech, while even Professor Huq's suggested reforms would require consideration of a potential investigative subject's speech if they were operationalized.His proposals might make things worse. Professor Huq urges investigators to focus on subtle, nuanced, local discursive contexts, without considering whether the risk of error likely to inhere in such difficult inquiries exceeds the risk of error at present. Moreover, Professor Huq recommends investigative techniques that depend on community cooperation, even though, as he acknowledges, the insularity of incipient terrorist cells not only makes them difficult to detect, but also means that they are unlikely to come to the attention to community members willing to cooperate with the authorities. In contrast, current doctrine, Professor Huq admits, relies on the most readily available signals and therefore minimizes search costs -- a not inconsiderable virtue.
Politically accountable officials have powerful incentives to utilize effective counterterrorist tactics. Academics, in contrast, are effectively accountable to no one. The apparent unwillingness of those who are politically accountable for counterterrorist policy to put their eggs in Professor Huq’s basket of counterterrorism reforms should give us pause.
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