CrimProf Blog

Bellin on the Confrontation Right in a Digital Age

Jeffrey Bellin (Southern Methodist University - Dedman School of Law) has posted Applying Crawford's Confrontation Right in a Digital Age on SSRN. Here is the abstract:

Much of the recent commentary on the Confrontation Clause focuses on the past. Commentators (and Supreme Court Justices) evaluate the evolving jurisprudence by comparing the confrontation right articulated in Crawford v. Washington and its progeny to the right that existed in 1791. This Symposium Essay shifts the focus to the future, exploring how the Supreme Court’s new Confrontation Clause jurisprudence will operate in a world where communication is increasingly informal and electronic.

Anderson on Privacy and Communication Technology

José F. Anderson (University of Baltimore - School of Law) has posted Big Brother or Little Brother? Surrendering Seizure Privacy for the Benefits of Communication Technology (Mississippi Law Journal, Vol. 81, No. 5, 2012) on SSRN. Here is the abstract:

Over two centuries have passed since Benjamin Franklin quipped that we should defend privacy over security if people wanted either privacy or security. Although his axiom did not become a rule of law in its original form, its principles found voice in the Fourth and Fifth Amendments of the Constitution's Bill of Rights. To a lesser extent, provisions against the quartering of troops in private homes found in the Third Amendment also support the idea that what a government can require you to do, or who you must have behind the doors of your home, is an area of grave importance for privacy purposes. By our behavior as a nation, have we indicated a rejection of the liberty Franklin was writing about in our modern times? In no area has the rapid rise of technology affected our lives more than in the area of communication through computers and other devices, like so called "smart telephones."

As long as people have been communicating, there has been a desire for others to be interested in hearing what they say. Sometimes the speaker or writer desires an audience and the speaker's freedom to communicate desires protection. At other times, people intend to keep their private words private while others desire to know their thoughts and intentions. This human desire, the "right to be let alone," has both practical and legal limitations. Obviously society has its own right to protect its members from violence and keep the peace by legislating and enforcing criminal law. When technology comes into existence, law enforcement often uses it first to engage in the "competitive enterprise [to] ferret out crime." Further, the technology itself may make it impossible to permit people who desire to keep information private from achieving that goal. Among the reasons that keeping matters private has become more difficult is that the law simply cannot keep up with the rapid rise in communications technology.

Metze on Certainty, Innocence, and the High Cost of Death and Immorality

Patrick Metze (Texas Tech University School of Law) has posted Troy Davis, Lawrence Brewer, and Timothy Mcveigh Should Still Be Alive: Certainty, Innocence, and the High Cost of Death and Immorality (6 Charleston L. Rev. 333 (Winter 2012)) on SSRN. Here is the abstract:

This article discusses the morality of the death penalty in regards to Troy Davis, Lawrence Brewer, and Timothy McVeigh.

Goodman on English Reform of Character Evidence Rules

Christine Chambers Goodman (Pepperdine University School of Law) has posted The Gate(way)s of Hell and Pathways to Purgatory: Eradicating Common Law Protections in the Newly Sculpted Character Evidence Rules of the United Kingdom’s 2003 Criminal Justice Act (University of Miami Law Review, Vol. 66, 2011) on SSRN. Here is the abstract:

Character evidence has long been a subject of hearty debate. It is common sense to seek information about a person's past behavior and about others' impressions of a person about whom we are trying to make a decision. Jurors in criminal cases feel the same way, and in close cases, common sense tells them to consider the defendant's prior behavior, and the opinions and impressions of those who know the defendant outside of court. 

The English Common Law and the codification of evidence law into United Kingdom and United States statutes have long sought to protect us from ourselves by prohibiting jurors from hearing character evidence to prove conduct in conformity with that character. Legislators recognize that while past conduct and impressions are useful information for decision-makers, presenting the evidence can be unfair to those on trial because the jurors may convict a person based on his past behavior, rather than on his current conduct. For this reason, the rules of evidence in many jurisdictions prevent jurors from using this information to help them decide the crucial issue of guilt or innocence. 

In 2003, the United Kingdom took the bold step of abolishing the common law rules on bad character evidence and started anew with sections 98 through 111 of the 2003 Criminal Justice Act (CJA). The 2003 CJA makes the 180-degree shift from a general exclusion of character evidence to prove propensity to a more inclusionary alternative - one that provides numerous paths for admitting bad character evidence. These paths are called “gateways,” and the gateways are quite wide - they provide prosecutors the opportunity to offer bad character evidence about the defendant in criminal trials and permit broad latitude in the jurors’ consideration of bad character evidence. 

This article begins with a brief historical primer on the character evidence rules that apply to criminal defendants in the United States and the United Kingdom. Part One summarizes the evolution of the rules limiting the use of bad character evidence about criminal defendants at trial. Part Two of this article explains the specific requirements of each gateway of the UK's 2003 CJA, and uses recent case authorities to illustrate the application of each gateway. Next, Part Three compares and contrasts the admissibility of character evidence through each gateway with its admissibility under the corresponding Federal Rule(s) of Evidence. Part Four analyzes and evaluates four major distinctions between the 2003 CJA in the United Kingdom and the FRE in the United States and makes recommendations for reform.

Larcombe on Subjective Belief in Rape Law

Wendy Larcombe (Melbourne Law School) has posted  Worsnop v The Queen: Subjective Belief in Consent Prevails (Again) in Victoria's Rape Law (Melbourne Univeristy Law Review, Vol. 35, No. 2, 2012) on SSRN. Here is the abstract:

The 2010 decision of the Victorian Court of Appeal in Worsnop v The Queen provides yet another example of rape law reform not achieving its intended effects. The Court held that a jury direction on the mental element of rape, introduced by the Crimes Amendment (Rape) Act 2007 (Vic), had not altered the law in the ways imagined by the Act’s drafters and supporters. Specifically, Worsnop determined that a jury cannot convict for rape if they find there is a reasonable possibility that the accused held an honest belief in consent (however unreasonable or mistaken). On this point, the Court found that both the Bill’s Explanatory Memorandum and the Victorian Criminal Charge Book were incorrect. This note argues that further statutory reform will now be required to ensure that the ‘fault element’ for rape in Victoria is brought into line with the communicative model of sexual relations enshrined in other sections of the Crimes Act 1958 (Vic).]

Bowman on Post-Booker Federal Sentencing

Frank O. Bowman III (University of Missouri School of Law) has posted Nothing is Not Enough: Fix the Absurd Post-Booker Federal Sentencing System (Federal Sentencing Reporter, Vol. 24, No. 5, 2012) on SSRN. Here is the abstract:

This article is an elaboration of testimony I gave in February 2012 at a U.S. Sentencing Commission hearing considering whether the advisory guidelines system created by the Supreme Court’s 2005 decision in United States v. Booker should be modified or replaced. I argue that it should.

First, the post-Booker advisory system is conceptually indefensible. It retains virtually every feature excoriated by critics of the original sentencing guidelines. Its extreme ‘advisoriness,’ while partially ameliorating some problems with the original guidelines, reintroduces the very concerns about unreviewable judicial arbitrariness that spawned the structured sentencing movement in the first place.

More importantly, the post-Booker system does not solve the biggest problem with the pre-Booker system – that its architecture and institutional arrangements predisposed the Commission’s rule-making process to become a one-way upward ratchet which raised sentences often and lowered them virtually never. Its sole relative advantage – that of conferring additional (and effectively unreviewable) discretion on sentencing judges – is insufficient to justify its retention as a permanent system. 

Second, there exist a number of constitutionally permissible alternatives to the court-created Booker system, one of which -- that originally proposed by the Constitution Project and more recently endorsed by Judge William Sessions, former Chair of the U.S. Sentencing Commission – is markedly superior to the present system. 

Third, the difficult problem is not designing a sentencing mechanism better than either the pre- or post-Booker guidelines, but ensuring that such a system, once in place, does not replicate pre-Booker experience and become a one-way upward ratchet prescribing ever higher sentences. I offer suggestions about how this difficulty might be solved. However, I concede both the difficulty of this problem and the justice of the concern that, however imperfect the advisory system, it may be the best that can be achieved given the present constellation of institutional and political forces.

Carroll on the Resistance Defense

Jenny E. Carroll (Seton Hall University School of Law) has posted The Resistance Defense (64 Alabama L. Rev. ___ , forthcoming 2012) on SSRN. Here is the abstract:

This article explores a previously ignored set of defendants — those who choose to rely on a defense of resistance. From Warren Jeffs, the polygamist recently convicted of child rape in Texas, to John Brown, the fiery abolitionist who led a raid on the federal armory at Harpers Ferry in the hopes of triggering an armed insurrection, these defendants waived their procedural rights and transformed their criminal trials into a commentary on the deficiencies of the law and the system that supports it. Though their belief systems varied, they appear throughout history in moments of social or political crisis and challenge the capacity of the law to encompass their story. 

While their eventual convictions are not surprising, their reliance on a defense of resistance highlights two compelling but under-explored components of criminal law. First, the procedural rights that compose the right to a defense are more than individual rights; they have a communal value. The defendant may utilize them to challenge the accusation, but the community relies on them as well to legitimate the process and outcome. If a defendant forgoes these protections, the process is curtailed and questions of its legitimacy inevitably follow. Second, these procedural rights have a substantive component. They help to define notions of guilt and appropriate punishment. If a defendant chooses to forgo these rights, they effectively alter what it means to be convicted or to deserve punishment, skewing the meaning of the law itself. 

In a time when political identity and legitimacy are in play with movements from Occupy Wall Street to the Tea Party, and the Supreme Court’s decisions in Apprendi and Crawford place renewed faith in the citizen jury to construct meaning in the law, the question of how the law should respond to competing narratives looms. Resistance defendants serve as a powerful reminder that the system is only as strong its ability to contemplate a counter-narrative, and that the law ultimately draws its meaning from the lives of the governed. If the system is unable to encompass some lives and their stories, it loses some meaning and risks becoming foreign to the citizens themselves. This article examines the causes and consequences of the dilemma posed by the resistance defense, and proposes ways the criminal justice system might adapt and improve in response.

Alexander on Causing the Conditions of One's Defense

Larry Alexander (University of San Diego School of Law) has posted Causing the Conditions of One's Defense: A Theoretical Non-Problem (Criminal Law and Philosophy (Forthcoming)) on SSRN. Here is the abstract:

My contribution to this symposium is short and negative: There are no theoretical problems that attach to one’s causing the conditions that permit him to claim a defense to some otherwise criminal act. If one assesses the culpability of an actor at each of the various times he acts in a course of conduct, then it is obvious that he can be nonculpable at T2 but culpable at T1, and that a nonculpable act at T2 has no bearing on whether an actor was culpable at T1 when he caused the circumstances that are exculpatory with respect to his act (or conduct) at T2. Moreover, as I interpret the Model Penal Code, it gets matters close to right on this point.

Stancil on Warrantless Searches

William Stancil (University of Minnesota - Twin Cities - School of Law) has posted How Warrantless Search Cases Are Really All the Same (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:

Fourth Amendment jurisprudence is an exercise in absurdity. Even with thousands of cases and hundreds of repeated fact patterns to rely on, courts aren't able to come up with consistent rules. In order to address the problem, this paper proposes a new way of thinking about warrantless searches. It ignores the debate over substantive Fourth Amendment law, and sidesteps the body of scholarly work that compares the "first principles" underlying different search regimes. Instead, it describes all searches as discrete events with common elements. Every search has a "subject" -- the object or space which has come under surveillance -- and a "method" -- the means used to reveal the subject. As a result, every search also has a universal, two-part conceptual structure. Much of the confusion over the Fourth Amendment occurs because judges ignore these fundamental features when writing search rules.

The resulting opinions often fail to provide much guidance, even in future cases that share an element with the prior case. The problem is particularly severe when it is combined with the current Katz standard. The result is precedent that functions as a one-way ratchet against privacy protections: elements of a search that do not violate the Fourth Amendment are easy to identify, but elements that do violate the Fourth Amendment remain consistently ambiguous. In order to solve this problem, protect privacy, and ultimately create a warrantless search jurisprudence that actually makes sense, judges need to write more specific search rules that align with the preexisting conceptual structure of the searches themselves.

Farber on Youth and Constitutional Protections

Hillary B. Farber (University of Massachusetts School of Law) has posted J.D.B. v. North Carolina: Ushering in a New 'Age' of Custody Analysis Under Miranda (Brooklyn Journal of Law and Policy, Vol. 20, No. 1, p. 117, 2011) on SSRN. Here is the abstract:

Over the past six years, the United States Supreme Court has carved out a distinct jurisprudential approach to youth. In 2005, the Court abolished the death penalty for juveniles in Roper v. Simmons. Then the Court ruled that juveniles could no longer be sentenced to life without the possibility of parole for non-homicide offenses in Graham v. Florida. One year after Graham, the Court handed down J.D.B. v. North Carolina, completing what could be considered a trilogy of cases that forge a new approach to youth status in our justice system. 

In J.D.B., the Court held that age is a relevant factor in determining whether a juvenile is in custody for Miranda purposes. Justice Sotomayor explained that age is far more “than a chronological fact”; it informs behavior and perception. Looking to the future, with the specific attributes of children now firmly acknowledged in Supreme Court precedent, a qualitatively different analysis is possible for juveniles in a variety of contexts not yet considered by the Court. There are any number of scenarios, from pre-trial to disposition, that may require courts to approach the application of procedural and substantive criminal law differently to youth in juvenile and adult court proceedings. These include such matters as competency, self-defense, lack of mens rea, accomplice liability, voluntariness of waiver of rights, and suppression of physical evidence. This Article addresses three separate areas where the Roper, Graham, J.D.B. trilogy may prove to have a profound impact: waiver of right to counsel, Terry stops, and the nature of the attorney-client relationship. In each of these contexts, various attributes of youth have differing effects on the doctrinal determination. For instance, if juveniles are characteristically impetuous decision makers, they may require additional protections to ensure that they are afforded a meaningful opportunity to be represented by a lawyer. Likewise, considering age when assessing the reasonableness of whether a juvenile would feel free to terminate the encounter during a Terry stop may compel a different outcome after J.D.B. Finally, a juvenile’s difficulty in weighing long-term consequences against short-term gains could put him or her at a significant disadvantage in terms of the quality of the representation he or she receives. Though the extent of J.D.B.’s impact is currently unknowable, it has great potential to ensure a meaningful delivery of constitutional protections to children in the investigative and adjudicatory phases of proceedings.

Mikos on States' Keeping Secrets from the Feds

Robert A. Mikos (Vanderbilt Law School) has posted Can the States Keep Secrets from the Federal Government? (University of Pennsylvania Law Review, Vol. 161, Forthcoming) on SSRN. Here is the abstract:

States amass troves of information detailing the regulated activities of their citizens, including activities that violate federal law. Not surprisingly, the federal government is keenly interested in this information. It has ordered reluctant state officials to turn over their confidential files concerning medical marijuana, juvenile criminal history, immigration status, tax payments, and employment discrimination, among many other matters, to help enforce federal laws against private citizens. Many states have objected to these demands, citing opposition to federal policies and concerns about the costs of breaching confidences, but the lower courts have uniformly upheld the federal government’s power to commandeer information from the states.

This Article provides the first in-depth analysis of the commandeering of states’ secrets. It identifies the distinct ways the federal government demands information from the states, illuminates the harms such demands cause, and challenges the prevailing wisdom that states may not keep secrets from the federal government. Perhaps most importantly, the Article argues that federal demands for information should be considered prohibited commandeering. It suggests that the commandeering of state information-gathering services is indistinguishable in all relevant respects from the commandeering of other state executive services. The Article discusses the implications such a ruling would have in our federal system, including its potential to bolster the states’ roles as sources of autonomous political power and vehicles of passive resistance to federal authority.

Vars on Sexual Dangerousness

Fredrick E. Vars (University of Alabama - School of Law) has posted Delineating Sexual Dangerousness (Houston Law Review, Vol. 50, Forthcoming) on SSRN. Here is the abstract:

Only “dangerous” individuals may be indefinitely detained. Is a one percent chance of a future crime clear and convincing evidence of dangerousness? For sex offenders, fear and uncertainty in case law leave open this passage to limbo. This article closes it. 

The due process balancing test used to evaluate standards of proof provides the framework. This article explains the relationship between the standard of proof and the definition of “dangerous” and argues that only an approach combining the two is consistent with the Constitution. 

Applying decision theory with assumptions favoring the government, this article calculates a minimum likelihood of recidivism for commitment. Of the 20 jurisdictions with sex offender commitment, just one requires something close to that constitutional floor. Thousands have been detained applying unconstitutional standards, and the vast majority remains so.

Waltman on Challenging Pornographers with Prostitution Laws

Max Waltman (Stockholm University--Political Science) has posted The Ideological Obstacle: Challenging Pornographers with Prostitution Laws (Midwest Political Science Association Conference, Chicago IL, April 11-15, 2012) on SSRN. Here is the abstract:

Prostitution is a social practice where money is paid for sex. Social science research and other evidence suggest that the sex in pornography is generally supplied by persons who share similar unequal, exploitative, and coercive life circumstances as those who are prostituted generally share. Given that these conditions are similar, there appears to be little reason why the pornography industry should not be subjected to the same legal scrutiny as prostitution per se, as it could have extremely important implications for the population who are exploited in the sex industry. Thus, this paper inquires into the legal, political, and ideological obstacles to address the harmful exploitation of persons in the pornography industry by applying prostitution laws to its production, finding that the obstacles to application are not legal but ideological and political. 

The paper takes a political science approach to constitutional issues, laws, legislative and judicial politics, drawing from political theory by authors such as Kimberle Crenshaw (intersectionality), Iris Marion Young (groups and inequality), Jane Mansbridge (representation), Ian Shapiro (constitutional politics), Laurel Weldon and Mala Htun (social movements and inequality). Sweden is selected as a case study, having been the first jurisdiction (1999) in the world that identified prostitution as a form of sex inequality related to gender-based violence, with pimps and johns as central in the cycle of exploitation and abuse - a legal approach more consistent with empirical evidence than conventional approaches viewing prostitution per se as either a moral crime of indecency, or a non-exploitative and tolerable work. Some comparative discussions are entertained throughout, with references to Canada, the United States, and international law.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	1983	A Due Process Right to Record the Police  Glenn Harlan Reynolds, John A. Steakley,  University of Tennessee College of Law, Unaffiliated Authors - affiliation not provided to SSRN,  Date posted to database: April 23, 2012
2	526	The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues  Kai Ambos,  Unaffiliated Authors - affiliation not provided to SSRN,  Date posted to database: March 29, 2012
3	330	Implicit Bias in the Courtroom  Jerry Kang, Mark W. Bennett, Devon W. Carbado, Pamela Casey, Nilanjana Dasgupta, David L. Faigman, Rachel D. Godsil, Anthony G. Greenwald,Justin D. Levinson, Jennifer Mnookin,  University of California, Los Angeles (UCLA) - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of California, Los Angeles (UCLA) - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of Massachusetts at Amherst - Psychology, University of California - UC Hastings College of the Law, Seton Hall University - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of Hawaii at Manoa - William S. Richardson School of Law, University of California, Los Angeles (UCLA) - School of Law,  Date posted to database: March 21, 2012
4	301	The Mosaic Theory of the Fourth Amendment  Orin S. Kerr,  George Washington University - Law School,  Date posted to database: April 3, 2012
5	267	Ensuring an Impartial Jury in the Age of Social Media  Amy J. St. Eve, Michael A. Zuckerman,  U.S. District Court Judge, U.S. District Court,  Date posted to database: March 13, 2012 (6th last week)
6	257	The Delaware Death Penalty: An Empirical Study  Sheri Lynn Johnson, John H. Blume,Theodore Eisenberg, Valerie P. Hans,Martin T. Wells,  Cornell Law School, Cornell Law School, Cornell University - School of Law, Cornell University - School of Law, Cornell University - School of Law,  Date posted to database: March 11, 2012 (7th last week)
7	163	Zotero - A Manual for Electronic Legal Referencing  John Prebble, Julia Caldwell,  Victoria University of Wellington, Victoria University of Wellington,  Date posted to database: April 3, 2012 (8th last week)
8	134	American Criminal Justice Exposed: A Review of The Collapse of American Criminal Justice, by William 9thStuntz  Christopher Slobogin,  Vanderbilt University - Law School,  Date posted to database: March 28, 2012 (new to top ten)
9	133	Thirteen Ways to Steal a Bicycle: Theft Law in the Information Age (Introduction)  Stuart P. Green,  Rutgers, The State University of New Jersey - School of Law-Newark,  Date posted to database: March 23, 2012 (new to top ten)
10	142	What Percentage of DOJ FCPA Losses is Acceptable?  Mike Koehler,  Butler University College of Business,  Date posted to database: March 23, 2012 (9th last week)