CrimProf Blog

Orenstein & Lave on Admission of Prior Sex Crimes

Aviva Orenstein (pictured) and Tamara Rice Lave (Indiana University Mauer School of Law and University of Miami, School of Law) have posted Empirical Fallacies of Evidence Law: A Critical Look at the Admission of Prior Sex Crimes on SSRN. Here is the abstract:

In a significant break with traditional evidence rules and policies, Federal Rules of Evidence 413-414 allow jurors to use the accused's prior sexual misconduct as evidence of character and propensity to commit the sex crime charged. As reflected in their legislative history, these propensity rules rest on the assumption that sexual predators represent a small number of highly deviant and recidivistic offenders. This view of who commits sex crimes justified the passage of the sex-crime propensity rules and continues to influence their continuing adoption among the states and the way courts assess such evidence under Rule 403. In depending on this image of sex crime perpetrators, legislators and judges have ignored the contrary psychological and criminological evidence.

Most critiques of the sex-propensity Rules concentrate on the unfairness part of the Rule 403 equation, but we approach them in a novel way, focusing instead on the absence of empirical support for their so-called probative value. This article examines the empirical support for the probative value of such evidence, revealing that current policy rests on bogus psychology and false empirical assertions. Rules 413-414 typify the regrettable seat-of-the-pants psychologizing on which evidence rule drafters rely too often; the approach eschews a nuanced approach to questions of recidivism and the different types of sex offenders. We argue that rulemakers should look to the disciplines engaged in the empirical study of perpetrator behavior before asserting notions of deviance and recidivism to justify radical changes to evidence law. Finally, we offer specific guidance to judges about how to conceptualize the probative value of evidence of prior sexual misconduct and how to incorporate this knowledge in applying their discretion in admitting sex-crime propensity evidence. 

Perlin on Mental Disability Law and the Death Penalty

Michael L. Perlin (New York Law School) has posted Mental Disability and the Death Penalty: The Shame of the States (Rowman & Littlefield, 2012) (in Press) Chapter 1: An Introduction and the Dilemma of Factual Innocence on SSRN. Here is the abstract:

There is no question that the death penalty is disproportionately imposed in cases involving defendants with mental disabilities. There is clear, systemic bias at all stages of the prosecution and the sentencing process – in determining who is competent to be executed, in the assessment of mitigation evidence, in the ways that counsel is assigned, in the ways that jury determinations are often contaminated by stereotyped preconceptions of persons with mental disabilities, in the ways that cynical expert testimony reflects a propensity on the part of some experts to purposely distort their testimony in order to achieve desired ends. These questions are shockingly underdiscussed in the literature, and I have written this book to explore the relationship between mental illness and the death penalty so as to explain why and how this state of affairs has come to be, why it is necessary to identify the factors that have contributed to this scandalous and shameful policy morass, to highlight the series of policy choices that need immediate remediation, and to offer some suggestions that might meaningfully ameliorate the situation.

In this introductory chapter, I set out the roadmap of the book, and look, substantively, at the issue of factual innocence in cases involving defendants with mental disabilities, stating the reality that it is more likely that a person with a serious mental disability will be convicted and sentenced to death in a case in which he is factually innocent.
In later chapters, I consider:
• the ways that sanism and pretextuality dominate this entire area of law and social policy,
• the role that dignity should play in this consideration and the meaning of therapeutic jurisprudence in this context,
• the significance of the “future dangerousness” inquiry in death penalty decisionmaking,
• the textures of the mitigation doctrine,
• questions of execution competency, involving defendants with intellectual disabilities and with mental illness, with special focus on the question of whether a defendant with severe mental illness can be medicated as to make him competent to be executed, and the potential role of neuroimaging evidence in such cases,
• the roles of the jury, the prosecutor, and counsel (focusing on the abject and global failure of counsel to provide effective assistance in this cohort of cases), and
• the potential significance of international human rights conventions and caselaw.
I conclude with some recommendations and some policy suggestions.

All rights reserved. No portion of this material may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical, photocopying, recording or otherwise without the prior written permission of the publisher. 

Smith on Electronic Surveillance Requests

Stephen W. Smith has posted Standing Up for Mr. Nesbitt (University of San Francisco Law Review, Vol. 47, No. 2, 2012) on SSRN. Here is the abstract:

An essay on the proper role of U.S. magistrate judges in applying the constitution to electronic surveillance requests by law enforcement, particularly during an era of legislative inertia and appellate court reticence. (h/t Monty Python) 

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	495	Jay-Z’s 99 Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and Perps  Caleb E. Mason,  Southwestern Law School,  Date posted to database: August 13, 2012
2	421	Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration  Heather Cucolo, Michael L. Perlin,  New York Law School, New York Law School,  Date posted to database: July 26, 2012
3	222	Foreign Affairs and Enforcement of the Foreign Corrupt Practices Act  Stephen J. Choi, Kevin E. Davis,  New York University (NYU) - School of Law, New York University (NYU) - School of Law,  Date posted to database: July 24, 2012 [6th last week]
4	188	Foreign Corrupt Practices Act Enforcement as Seen through Wal-Mart's Potential Exposure  Mike Koehler,  Southern Illinois University School of Law,  Date posted to database: September 13, 2012 [new to top ten]
5	169	A Technology-Centered Approach to Quantitative Privacy  David C. Gray, Danielle Keats Citron,  University of Maryland-Francis King Carey School of Law, University of Maryland - Francis King Carey School of Law,  Date posted to database: August 15, 2012 [7th last week]
6	162	The International Commission of Inquiry on Libya: A Critical Analysis  Kevin Jon Heller,  Melbourne Law School,  Date posted to database: August 5, 2012 [9th last week]
7	151	Arthur Andersen and the Myth of the Corporate Death Penalty: Corporate Criminal Convictions in the Twenty-First Century  Gabriel Markoff,  Southern District of Texas,  Date posted to database: August 21, 2012 [new to top ten]
8	149	Illuminating Innumeracy  Lisa Milot,  University of Georgia - School of Law,  Date posted to database: August 1, 2012 [new to top ten]
9	136	'Becker on Ewald on Foucault on Becker': American Neoliberalism and Michel Foucault's 1979 'Birth of Biopolitics' Lectures  Gary S. Becker, Francois Ewald, Bernard E. Harcourt,  University of Chicago - Department of Economics, Conservatoire National des Arts et Métiers, University of Chicago - Department of Political Science,  Date posted to database: September 5, 2012 [new to top ten]
10	129	The Heart of Mens Rea and the Insanity of Psychopaths  Craig A. Stern,  Regent University School of Law,  Date posted to database: July 27, 2012 [new to top ten]