July 21, 2012
Davis & Leo on Acute Suggestibility in Police Interrogation
Deborah Davis and Richard A. Leo (pictured) (University of Nevada, Reno and University of San Francisco - School of Law) have posted Acute Suggestibility in Police Interrogation: Self-Regulation Failure as a Primary Mechanism of Vulnerability (Anne Ridley, ed., Investigative Suggestibility: THEORY, RESEARCH AND APPLICATIONS (John Wiley & Sons, Ltd. 2012)) on SSRN. Here is the abstract:
This chapter examines the failure of police, attorneys, judges, and juries to appreciate the magnitude of acute impairments of will and cognition in interrogation. The authors explore sources of enhanced susceptibility to interrogative influence triggered by the nature of the suspect’s immediate circumstances, rather than by chronic personal characteristics, which they call “acute interrogative suggestibility.” The authors consider the role of “interrogation-related regulatory decline” or IRRD in producing acute interrogative suggestibility -- that is, the decline in self-regulation resources necessary to control thinking and behavior in service of resisting interrogative influence. In particular, the authors concentrate on three common but underappreciated sources of IRRD in police interrogation, one or more of which are present in most cases involving claims of involuntary or false confession: acute emotional distress, fatigue and sleep deprivation, and glucose depletion. The chapter concludes by arguing that much more weight should be given to issues of acute sources of vulnerability to influence and suggestion than is presently the case.
July 20, 2012
Richman, Stith & Stuntz on Defining Federal Crimes
Daniel C. Richman , Kate Stith and William J. Stuntz (Columbia Law School , Yale University - Law School and Harvard Law School) have posted Defining Federal Crimes - Chapters 2-4 (DEFINING FEDERAL CRIMES, Aspen Publishing, Forthcoming) on SSRN. Here is the abstract:
These are three chapters from a forthcoming Federal Criminal Law casebook that will focus on institutional interactions -- between Congress and the courts; the courts and prosecutors, and among elements within the federal enforcement bureaucracy. Chapter 2 focuses on criminal jurisdiction under the Commerce Clause. Chapter 3 generally considers how separation of powers issues play out in the interpretation of federal criminal statutes. Chapter 4 explores mail and wire fraud.
Minzner on the Criminal Rules Enabling Act
Max Minzner (University of New Mexico School of Law) has posted The Criminal Rules Enabling Act (46 University of Richmond Law Review 1047 (2012)) on SSRN. Here is the abstract:
The Rules Enabling Act authorizes the Supreme Court to prescribe “general rules of practice and procedure” as long as those rules do not “abridge, enlarge or modify” any substantive right. The Supreme Court has frequently considered the effect of these restrictions on the Federal Rules of Civil Procedure. In order to avoid Enabling Act concerns, the Court has imposed limiting constructions on a number of the Civil Rules. A significant academic literature has grown up analyzing and criticizing the Court’s approach in these cases, frequently arguing for more expansive interpretations of the REA that would place more significant constraints on the Civil Rules. The impact of these statutory restrictions on the Rules of Criminal Procedure, though, has been virtually unstudied. Neither the Supreme Court nor academics have focused on the Criminal Rules when interpreting the REA.
This article argues that this approach is a mistake. Even under the most constrained view of the Rules Enabling Act, several Criminal Rules are potentially invalid because they are insufficiently procedural. After outlining the current doctrine on the Enabling Act and the Civil Rules, I provide a framework for applying the Act to the Criminal Rules and examine the constraints of the REA with respect to four Rules of Criminal Procedure that face validity challenges. In addition to identifying these Enabling Act issues, this article proposes potential interpretations of these Rules that can reduce their substantive effect by either reading the Rules narrowly or grounding the doctrines in federal common law, rather the Enabling Act.
July 19, 2012
Blume & Helm on Factually Innocent Defendants Who Plead Guilty
John H. Blume (pictured) and Rebecca K. Helm (Cornell Law School and affiliation not provided to SSRN) have posted The Unexonerated: Factually Innocent Defendants Who Plead Guilty on SSRN. Here is the abstract:
Several recent high profile cases, including the case of the West Memphis Three, have revealed (again), that factually innocent defendants do plead guilty. And, more disturbingly in many of the cases, the defendant’s innocence is known, or at least highly suspected at the time the plea is entered. Innocent defendants plead guilty most often, but not always, in two sets of cases: first, low level offenses where a quick guilty plea provides the key to the cellblock door; and second, cases where defendants have been wrongfully convicted, prevail on appeal, and are then offered a plea bargain which will assure their immediate or imminent release. There are three primary contributing factors leading a criminal justice system where significant numbers of innocent defendants plead guilty to crimes they did not commit. The first is the perceived need that all defendants must plead. The second is the current draconian sentencing regime for criminal offenses. And, the final contributing factor is that plea bargaining is, for the most part, an unregulated industry. This article discusses cases in which innocent defendants plead guilty to obtain their release, thus joining the “unexonerated” and then propose several options the criminal justice system should embrace to avoid, or at least ameliorate the plight of innocent defendants who plead guilty.
Florida Man Foils Armed Robbery with Concealed Weapon (Kolber)
Here's how Boing Boing describes the video clip:
This surveillance video clip shows 71-year-old Samuel Williams thwarting an armed robbery at an internet cafe in Marion, Florida on Friday, July 13, 2012. Williams, a licensed gun owner, may now become the poster child for those who support "concealed carry" rights in the state.
There is also a flurry of comments at Boing Boing about the use of force in this case.
Arcila on US v. Jones
Fabio Arcila Jr. (Touro College - Jacob D. Fuchsberg Law Center) has posted GPS Tracking Out of Fourth Amendment Dead Ends: United States v. Jones and the Katz Conundrum (North Carolina Law Review, Vol. 91, No. 1, 2012, Forthcoming) on SSRN. Here is the abstract:
United States v. Jones, which reviewed the constitutionality of warrantless GPS tracking, may be the most important Fourth Amendment opinion since the Supreme Court decided Katz v. United States over four decades ago. Jones was a highly anticipated decision because it was widely understood that the stakes at issue extended well beyond those of the specific parties involved or questions being reviewed. Depending upon how the Court resolved the case, its decision promised to have ramifications for numerous core Fourth Amendment doctrines, and in turn for many governmental activities either currently or potentially subject to the Fourth Amendment, activities as varied as routine criminal law enforcement investigations, technological surveillance for either criminal or civil purposes (through GPS but also other means, such as location tracking capabilities embedded in individuals’ cellular telephones), and national security, to name but a few.
The attention devoted to Jones by the legal community and public at large was fully merited. The Supreme Court greatly surprised everyone by ruling unanimously that the GPS tracking at issue was subject to Fourth Amendment protections. More substantively, however, the decision resulted in three separate opinions applying vastly different rationales. This forthcoming article explains the Jones decision, situating it within the broader framework of constitutional search and seizure law; analyzes and critiques the various opinions; and explores the many varied, significant implications that Jones either will or may have for the future of Fourth Amendment jurisprudence.
July 18, 2012
Duff on Modest Legal Moralism
After distinguishing different types of Legal Moralism (positive/negative; modest/ ambitious) I defend a modest, positive Legal Moralism: we have good reason to criminalize a type of conduct if and only if it constitutes a public wrong. Some of the central elements of the argument will be: the need to begin not (as many Legal Moralists begin) with the entire realm of moral wrongdoing, but with conduct falling within the public realm of civic life; the significance of the various different processes of criminalization (of which legislation is only one); and the need to attend to the relationship between criminal law and other modes of legal regulation. Criminal law focuses on wrongs: it identifies a set of public wrongs, and provides for those accused of committing such wrongs to be called to formal public account.
"Ariz. Immigration Law Opponents File New Offensive"
A.P. account at the New York Times site:
A coalition of civil rights groups, religious leaders and business organizations filed a new request seeking a court order that would prevent authorities from enforcing a rule that requires police to check the immigration status of people they stop for other reasons.
. . .
In a separate case, the U.S. Justice Department has accused Arpaio's office in a lawsuit of racially profiling Latinos in immigration patrols. The sheriff denies the allegations. That case goes to trial Thursday in federal court.
"UN rights expert urges halt to US executions of mentally disabled individuals"
UN Special Rapporteur on arbitrary executions Christof Heyns [official website] on Tuesday urged the US not to execute [press release] two individuals with "psychosocial disabilities" who are set to be put to death in Georgia and Texas. Warren Hill was set to be executed Wednesday in Georgia, but after the Georgia State Board of Pardons and Parolesdenied his petition for clemency [JURIST report] Monday, the Georgia Department of Corrections delayed his execution for several days in order to make changes to its lethal injection protocol. . . . Yokamon Laneal Hearn is set to be executed Wednesday in Texas.
Green & Kugler on Public Views on Criminalizing Insider Trading
Stuart P. Green (pictured) and Matthew B. Kugler (Rutgers, The State University of New Jersey - School of Law-Newark and Lehigh University) have posted When is it Wrong to Trade Stocks on the Basis of Inside Information? Public Views of the Morality of Insider Trading (Fordham Urban Law Journal, Vol. 39, p. 445, 2011) on SSRN. Here is the abstract:
While the conduct that underlies traditional core offenses like murder and rape is viewed by the public as unambiguously wrong, there is less certainty about the behavior that underlies many newer white collar crimes. A previous study by the same authors examined public views of bribery, perjury, and fraud, and found an often blurry line between what subjects thought should be criminalized and what should not. The current set of studies focused on public perceptions of insider trading. Across three studies, lay participants were found to view the core case of insider trading, in which the trader obtained inside information by breaching a duty of loyalty to an employer or client, as highly blameworthy and worthy of criminalization. But when the same information was obtained by luck, trading was not viewed as blameworthy, despite the arguably unfair information advantage held. In this, lay views were consistent with current law in the U.S.
Lay views also tracked current law and practice with respect to several narrower issues. Subjects agreed with current practice that only insider trading resulting in a large amount of ill-gotten gains should result in criminal sanctions, while those trades resulting in comparatively small gains should be treated civilly. Lay subjects also agreed with current law that a tipper who gave inside information to a tippee should be prosecuted criminally only where his motives were selfish, and not when they were altruistic.Perhaps most strikingly, the study found that, though lay subjects had strong intuitions that insider trading was in some general sense morally wrong, they had real difficulty saying exactly what wrongs it entails and what harms it causes.
Dearinger on Mandatory Release Conditions under the Adam Walsh Act Amendments
Bryan Dearinger has posted The Mandatory Pretrial Release Provision of the Adam Walsh Act Amendments: How 'Mandatory' Is It, and Is It Constitutional? (St. John's Law Review , Vol. 85, No. 4, 2011) on SSRN. Here is the abstract:
Eighty years ago, Justice Brandeis warned us to “be most on our guard to protect liberty when the government’s purposes are beneficent,” as great dangers to liberty often lurk in the “insidious encroachment by men of zeal, well-meaning but without understanding.” Although Congress meant well five years ago, when it enacted the Adam Walsh Act Amendments to the Bail Reform Act of 1984, it failed to understand the consequences of its actions. The Amendments were added without a stated purpose, a single substantive debate or a shred of congressional findings. A particular, undesignated provision of the Amendments requires that every defendant charged with one of an enumerated list of offenses be subject to a prescribed set of pretrial release conditions, even if the district court would find those conditions unwarranted during a bail hearing. This provision, which is unrivaled in American law, strips away any independent judicial evaluation by mandating that every arrestee be treated the same, regardless of the particular circumstances surrounding the arrestee and the charged offense.
Has Congress, in its zeal to protect children, violated fundamental constitutional safeguards routinely afforded criminal defendants at the pretrial stage? I believe it has and that the mandatory pretrial release provision of the Amendments is facially unconstitutional or, at the very least, unconstitutional as applied to the majority of defendants charged with an AWA-enumerated offense. Using two hypothetical cases coupled with the lessons drawn from the few reported decisions on this topic, this Article first considers whether the “mandatory” pretrial release provision is actually inapplicable in certain circumstances. Next, assuming arguendo that the provision applies, this Article addresses whether it is constitutional under the Excessive Bail Clause of the Eighth Amendment, the Due Process Clause of the Fifth Amendment, and the separation of powers doctrine. Recognizing the lack of political room for any meaningful legislative reform on the war against sex crimes, this Article instead calls for Congress to repeal or redraft the aforementioned provision of the Adam Walsh Act Amendments or, in the alternative, bolster its legislative record, in order to avoid meritorious constitutional attacks and to preserve the Bail Reform Act’s longstanding deference to the judiciary’s independent, case-by-case determination of the least restrictive pretrial release conditions necessary to reasonably assure the reappearance of the arrestee and the safety of the community.
July 17, 2012
Caldwell on Presenting Mitigating Evidence for Juveniles in Adult Court
Beth Caldwell (Thomas Jefferson School of Law) has posted Appealing to Empathy: Counsel’s Obligation to Present Mitigating Evidence for Juveniles in Adult Court (64 Me. L. Rev. 391) on SSRN. Here is the abstract:
The Supreme Court’s recent decisions in Roper v. Simmons and Graham v. Florida demonstrate that mitigating information about a young person accused of a crime is important to courts. In both Roper and Graham, the Supreme Court considered the tragic life histories of young defendants in conjunction with adolescent development research. In Roper, the Court held that sentencing juvenile offenders to death violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Similarly, the Graham decision found the punishment of life without the possibility of parole unconstitutional for juveniles convicted of nonhomicide offenses. Mitigating information helped to frame the Court’s understanding of the complicated developmental issues impacting juvenile offenders in both of these landmark cases.
Mitigating evidence may dramatically influence the outcome of a case, and the Court's reasoning in Roper and Graham suggests that mitigating evidence may be required in cases where juvenile offenders face substantial sentences in adult court. I set forth a framework for potential postconviction challenges to juvenile sentences based on the argument that failure to present mitigating evidence about a juvenile client in adult court constitutes ineffective assistance of counsel. This argument incorporates death penalty jurisprudence requiring counsel to present evidence of mitigation and builds on a model for postconviction review of Three Strikes sentences pioneered by Stanford Law School's Michael Romano.
The article explores alternative mechanisms for providing incarcerated juvenile offenders the opportunity to present evidence of rehabilitation in an effort to facilitate the type of “meaningful opportunity for release” that the Graham decision guarantees. It concludes by discussing specific skills and techniques attorneys should develop in order to gather and present mitigating information about juvenile clients. Drawing from therapeutic jurisprudence scholarship, as well as this author’s background in the field of Social Welfare, this discussion presents multidisciplinary techniques that enhance the legal representation of youth.
"Dear SCOTUS, please reverse my opinion"
From Kent Scheidegger at Crime and Consequences, commenting on this California Supreme Court case, "a capital case in which a juror was excused for cause, ultimately found improper under the Witherspoon-Witt rule."
Is this reversibleper se? The unanimous opinion of the Court by Chief Justice Cantil-Sakauye reluctantly concludes that this result is required by the U.S. Supreme Court's splintered opinion in Gray v. Mississippi, 481 U.S. 648 (1987).
But then the Chief Justice writes a separate petition for certiorari concurring opinion. It's not terribly unusual in Cal. Supreme for the author of the opinion of the court to write a separate concurrence joined by less than a majority of the court, but this one is joined by a (bare) majority. She notes Gray's lack of a majority opinion, limiting language in a subsequent case, and dubious policy basis in cases where the defendant ultimately receives a fair trial with an impartial jury.
"Woman Tells of Encounters With Killer in Martin Case"
From the New York Times:
MIAMI — An Orlando woman now in her mid-20s told investigators that George Zimmerman, who is charged with second-degree murder in the killing of Trayvon Martin, groped and touched her inappropriately over a decade, beginning when they were both young children, according to an audiotape released on Monday.
. . .
[T]he same witness describes Mr. Zimmerman’s family as routinely disparaging black people.
Mulroy on the 48-Hour Hold
Steven J. Mulroy (University of Memphis - Cecil C. Humphreys School of Law) has posted Hold On: The Remarkably Resilient, Constitutionally Dubious '48-Hour Hold' on SSRN. Here is the abstract:
For decades, various local jurisdictions used (and in some areas, still use) a constitutionally suspect procedure called a "48-hour hold." A suspect is detained for up to 48 hours without charge while an investigation continues; after 48 hours, the suspect is either charged or released. The practice continues despite occasional criticism by courts, the bar, and the press. In many cases, this practice unconstitutionally detains persons without probable cause. Even where probable cause exists, the practice improperly circumvents rights to get bail, to get a prompt bail determination, and to be free of interrogation without the presence of counsel. While similar procedures may occur in other countries, it is contrary to American principles of criminal justice. Understanding why may also help in current debates over the proposed use of "investigative holds" of terrorism suspects.
Kamin on Sexting
Correy Kamin has posted Unsafe Sexting: The Dangerous New Trend and the Need for Comprehensive Legal Reform (Ohio State Journal of Criminal Law, Vol. 9, No. 1, 2011) on SSRN. Here is the abstract:
Teenage "sexting"-- the practice of taking nude or semi-nude photographs and distributing them via cell phone text messages -- has been in and out of the media spotlight for several years. While the media often rightly focuses on these incidents from a bullying standpoint, most people are not fully aware of the potentially devastating legal consequences that could stem from these instances of so-called juvenile naivete. Federal and state child pornography laws make it illegal to create, possess, or distribute explicit images of a minor and, while these laws were enacted to protect children from adult predators, there is nothing in the language of most current legislation that prohibits the prosecution of minors -- even those who willingly take and send pictures of themselves. This article attempts to delve deeper into the sexting trend, exploring its psychological motivations and implications, as well as the legal consequences that may stem from pressing "send." Finally, the article proposes a more appropriate way to address sexting -- a combination between criminal sanctions and preventative education -- and suggests redrawing the line that would trigger legal action.
July 16, 2012
McCannon on Elected Prosecutors
Public prosecutors exercise a significant amount of discretion in the criminal justice system. In the U.S. the dominant form of accountability is that prosecutors must be re-elected by the voters. Recent empirical work illustrates that election concerns open up the potential for distortion in the decisionmaking of prosecutors. Specifically, it has been shown that prosecutors take more cases to trial and plea bargain less when running for re-election. This effect is magnified when the incumbent is challenged. Does this hawkish behavior of prosecutors lead to inaccuracies in the criminal justice system? A panel data set of appellate decisions in western New York is analyzed. It is shown that if the initial felony conviction takes place in the six months prior to a re-election and is appealed, then the probability the appellate court upholds the lower court’s decision decreases by 5.1-7.1 percentage points. Thus, the popular election of prosecutors results in inaccurate sentences and wrongful convictions.
Milligan on Analogy Breakers, New Technology, and the Fourth Amendment
Luke M. Milligan (University of Louisville - Louis D. Brandeis School of Law) has posted Analogy Breakers: A Reality Check on Emerging Technologies (Mississippi Law Journal, Vol. 80, No. 4, p. 1319, 2011) on SSRN. Here is the abstract:
Courts naturally and necessarily turn to analogical reasoning to incorporate cyber-technologies into existing doctrinal rules. And when it comes to criminal procedure, the preferred form of legal reasoning has been mono-analogous. The term “mono-analogical” designates a brand of analogical reasoning where only a single dimension of a subject is mapped. I argue that the prevailing mono-analogical approach to cyber-issues (which places near-exclusive emphasis on a technological instrument's functional role) is indeterminate, undisciplined, and in disregard of the subtler lessons of land-mark Fourth Amendment opinions such as United States v. Knotts and Kyllo v. United States.
This article suggests, as an alternative, a poly-analogous approach: one that respects the necessity for functional comparisons but at the same time gives due credit to the practical dimensions of emerging technologies. Such practical dimensions can be incorporated into prevailing doctrine with little difficulty. The “analogy breaker,” applicable across the spectrum of criminal procedure doctrine, will help courts identify the essence of precedent and, as a result, effectively mediate old criminal procedure rules and new technologies.
July 15, 2012
Top-Ten Recent SSRN Downloads
|1||639||Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right
Keith A. Findley, Patrick David Barnes, David A. Moran, Waney Squier,
University of Wisconsin Law School, Stanford University - School of Medicine, University of Michigan at Ann Arbor - The University of Michigan Law School, John Radcliffe Hospital,
Date posted to database: April 30, 2012
|2||331||The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem
Lucian E. Dervan, Vanessa Edkins,
Southern Illinois University School of Law, Florida Institute of Technology,
Date posted to database: May 31, 2012 [3rd last week]
|3||256||Predictive Policing: The Future of Reasonable Suspicion
Andrew Guthrie Ferguson,
UDC David A. Clarke School of Law,
Date posted to database: May 2, 2012 [4th last week]
|4||214||Jewish Law and the Tragedy of Sexual Abuse of Children: The Dilemma within the Orthodox Jewish Community
Steven H. Resnicoff,
DePaul University College of Law,
Date posted to database: June 2, 2012 [5th last week]
|5||206||Human Trafficking and Regulating Prostitution
Samuel Lee, Petra Persson,
New York University (NYU) - Leonard N. Stern School of Business, Columbia University,
Date posted to database: May 14, 2012 [new to top ten]
|6||205||Cartels, Corporate Compliance and What Practitioners Really Think About Enforcement
D. Daniel Sokol,
University of Florida - Levin College of Law,
Date posted to database: June 7, 2012 [7th last week]
|7||196||The Nature and Purpose of Evidence Theory
Michael S. Pardo,
University of Alabama School of Law,
Date posted to database: May 16, 2012 [6th last week]
|8||159||The Oral Hearing in Competition Proceedings Before the European Commission
Wouter P. J. Wils, Wouter P. J. Wils,
European Commission, University of London - School of Law,
Date posted to database: May 3, 2012 [9th last week]
|9||142||The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion
Robert J. Smith, Robert J. Smith, Justin D. Levinson,
DePaul University College of Law, The Charles Hamilton Houston Institute for Race and Justice , University of Hawaii at Manoa - William S. Richardson School of Law,
Date posted to database: April 25, 2012 [10th last week]
|10||133||The Role of the Hearing Officer in Competition Proceedings Before the European Commission
Wouter P. J. Wils, Wouter P. J. Wils,
European Commission, University of London - School of Law,
Date posted to database: May 3, 2012 [new to top ten]