CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

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Saturday, January 28, 2012

Mirabella on Italian Criminal Procedure and the Amanda Knox Trial

Julia Grace Mirabella has posted Scales of Justice: Assessing Italian Criminal Procedure Through the Amanda Knox Trial (Boston University International Law Journal, Vol. 30, No. 1, 2012) on SSRN. Here is the abstract:

The Italian criminal procedure code of 1989 reformed Italy’s criminal procedure system from an inquisitorial model into a hybrid scheme that draws inspiration from the United States’ adversarial system. However, despite including adversarial processes into its criminal procedure code, Italy’s inquisitorial foundations have continued to exert considerable influence over trial procedures. In the wake of the Amanda Knox case Italian criminal procedure has increasingly come under fire.

The purpose of this note is to explore the changes made to the Italian criminal procedure code, to assess the current state of Italian criminal proceedings and to consider whether proper comparative methodologies have been used in assessing how Italian criminal procedure relates to traditional adversarial systems.

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January 28, 2012 | Permalink | Comments (4)

Friday, January 27, 2012

Rothstein & Coleman on Bullcoming and Confrontation

Rothstein paulPaul F. Rothstein (pictured) and Ronald J. Coleman (Georgetown University Law Center and Georgetown University Law Center) have posted Grabbing the Bullcoming by the Horns: How the Supreme Court Could Have Used Bullcoming v. New Mexico to Clarify Confrontation Clause Requirements for CSI-Type Reports (Nebraska Law Review, Vol. 90, p. 502, 2011) on SSRN. Here is the abstract:

In the pilot episode of the hit television show CSI, Grissom says to Warrick: "Concentrate on what cannot lie. The evidence." Although Grissom is a beloved figure in U.S. popular culture, the U.S. is currently unwilling to accept that evidence never lies. In stark contrast to Grissom's statement, the common law has a long history of allowing criminal defendants to cross-examine and question witnesses providing evidence against them. The right to confront an accusatory witness is reflected in the historical legal documents of Great Britain, in Shakespearean writing, and even in the Bible. In the United States, the right to confront was enshrined in the Sixth Amendment to the Federal Constitution which provides: "In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him..." The right to confront applies at both the federal level and at the state level (through the Fourteenth Amendment).

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January 27, 2012 | Permalink | Comments (0)

Luppi & Parisi on Jury Size and Hung Juries

Barbara Luppi and Francesco Parisi (Università degli studi di Modena e Reggio Emilia (UNIMORE) - Faculty of Business and Economics and University of Minnesota - Law School) have posted Jury Size and the Hung-Jury Paradox on SSRN. Here is the abstract:

In the United States, the 1970 Supreme Court decision Williams v. Florida 399 U.S. 78 (1970) reduced from twelve to six the minimum number of jurors required under the Sixth and Fourteenth Amendments. In the hope of improving the legal process with faster deliberation and fewer mistrials, eleven states have used juries of less than twelve in felony cases. This has given origin to an unprecedented natural experiment on jury decision-making. Contrary to the predictions of probability theory, the reduction in jury size has not brought the expected reduction in the number of mistrials. In this paper we provide a possible explanation for this fact. We formulate some propositions considering the case of jury deliberation in the presence of informational cascades. These results have implications not only for juries, but also for democratic theory.

January 27, 2012 | Permalink | Comments (0)

Thursday, January 26, 2012

Tusikov on Measuring Organised Crime-Related Harms

Natasha Tusikov (Australian National University) has posted Measuring Organised Crime-Related Harms: Exploring Five Policing Methods (Crime Law and Social Change, November 2011) on SSRN. Here is the abstract:

Many law enforcement agencies around the world have adapted risk assessment methodology to analyse organised crime. These assessments, which are intended to provide law enforcement management with rigourous analysis to enable rational and objective decision-making processes, are an integral part of intelligence-led policing. Despite the prevalence of these assessments, as the assessments and their methodologies are often tightly restricted within the law enforcement community, it is often unclear how law enforcement defines, analyses and makes decisions about organised crime. While the use of risk assessment methodology to analyse organised crime in policing is generally under-evaluated, critics point to serious methodological weaknesses. Another aspect that is less explored in the scholarly literature is how law enforcement conceptualises and measures the impact or ‘harm’ from organised crime and uses this analysis to inform priority-setting processes. This article explores how law enforcement assess organised crime-related harm by examining five policing methods — one each from Australia and the Netherlands and three from the United Kingdom. The article finds that the methods have significant shortcomings: the main concepts are generally ill-defined and the operationalisation of these concepts is problematic. More importantly, the problems evident in the harm methods raise several critical questions, specifically whether measuring organised crime-related harms is empirically feasible and, if so, can be undertaken in a manner that meaningfully informs law enforcement’s decision-making and limits undue political interference.

January 26, 2012 | Permalink | Comments (0)

The New "Virginia Journal of Criminal Law" (Kolber)

The UVA School of Law has a new journal devoted to criminal law.  Blog readers may want to encourage their libraries to get a subscription if they don't already have one.  Some news via VJCL editor:
The inaugural issue of the Virginia Journal of Criminal Law (“VJCL”) features an article written by Professor Dan Markel, the D’Alemberte Professor of Law at Florida State University College of Law and a current Scholar-in-Residence at NYU Law’s Center on the Administration of Criminal Law.  The article is entitled “Retributive Justice and the Demands of Democratic Citizenship.”  For more info about subscription info, please contact Daniel Gude, Managing Editor of the VJCL, at dmg3ae@virginia.edu
-AJK

January 26, 2012 | Permalink | Comments (0)

Wednesday, January 25, 2012

McCary and Sanga on Youth Offenders and the Deterrence Effect of Prison

Justin McCrary and Sarath Sanga (University of California, Berkeley and Yale Law School) has posted Youth Offenders and the Deterrence Effect of Prison on SSRN.  Here is the abstract: 

In this paper, we present evidence from six data sets on the participation of youth in crime near the age of criminal majority. The evidence suggests smooth behavior through the transition to adulthood, despite substantial changes in punitiveness. This is consistent with small deterrence effects of long prisons sentences for youthful offenders.

January 25, 2012 | Permalink | Comments (0)

Salkin and Kansler on Ensuring the Public Trust at the Municipal Level

Patricia Salkin and Zachary Kansler (Albany Law School and Albany Law School) have posted Ensuring the Public Trust at the Municipal Level: Inspectors General Enter the Mix (Albany Law Review, Vol. 75, 2012) on SSRN.  Here is the abstract: 

Although federal, state and local government officials are subject to applicable codes of ethical conduct and are under the jurisdiction of ethics enforcement agencies created pursuant to these laws, ethics oversight agencies are limited in the breadth and scope of covered activities. With an increase in reported allegations of corruption, particularly at the local government level, this article explores the addition of the audit function, through inspectors general, to ensure greater transparency and accountability of public officials. 

The article begins with a very brief historical overview of the emergence of the inspector general concept in Europe and its adoption in the United States at the federal and state levels. The article continues with a focused examination of the reasons behind the creation of inspectors general at the municipal level and the various models or forms that have emerged in the establishment, jurisdiction, the operation of these offices and budget issues. 

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January 25, 2012 | Permalink | Comments (0)

Sidhu on Religious Freedom and Inmate Grooming Standards

Sidu- UNM Law school

Dawinder S. Sidhu (University of New Mexico School of Law) has posted Religious Freedom and Inmate Grooming Standards (University of Miami Law Review, Forthcoming) on SSRN.  Here is the abstract: 

This Article explores the Eleventh Circuit's repeated rejection of challenges, under the First Amendment's Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), to "restrictive" inmate grooming policies (that require inmates to shave or cut their hair) in suits brought by plaintiffs who subscribe to a religion that mandates the growing of facial hair or long hair. It suggests, based on an analysis of case law, states' policies, and recent legal developments, that the Eleventh Circuit's approach in upholding these policies is no longer sustainable. 

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January 25, 2012 | Permalink | Comments (0)

Tuesday, January 24, 2012

Lyon on News Media and Criminal Defense

Andrea D. Lyon (DePaul University - College of Law)

Andrea D. Lyon (DePaul University - College of Law) has posted Criminal Coverage: News Media, Legal Commentary, and the Crucible of the Presumption of Innocence (Reynolds Courts & Media Law Journal, Vol. 1, No. 4, p. 427, Fall 2011) on SSRN.  Here is the abstract: 

The criminal defense bar has always had a complex relationship with the media. There are competing parts of the Constitution to consider, namely, the First and the Sixth Amendments. Generally speaking, publicity hurts a criminal defendant. There are already so many presumptions against anyone charged — particularly anyone charged with a violent offense. That said, without the media, abuses of power would never come to light. For example, even though it was a long time coming, former police commander Jon Burge would never have gone to jail for the torture of those he arrested without the intervention of the press and the assiduity of a few lawyers and reporters. This article article identifies practical intrusions of these tensions in today’s world — the obtrusiveness of the twenty-four hour news cycle, pervasive legal commentators (I use the word “legal” advisedly) and the ethical implications of treating crime news as entertainment.

January 24, 2012 | Permalink | Comments (0)

First reactions to GPS monitoring case

ScotusBlog collects the commentary here. At The Volokh Conspiracy, Orin Kerr raises some interesting questions about where the Court will go from here.

January 24, 2012 | Permalink | Comments (0)

Monday, January 23, 2012

Opinion upholding qualified immunity for warrantless home entry

The Court's per curiam opinion in Ryburn v. Huff faults the Ninth Circuit for deviating from the district court's conclusion that an objectively reasonable officer would believe the entry was justified by the fear of imminent violence in case involving allegations that student was planning to shoot up his school.

January 23, 2012 | Permalink | Comments (0)

Opinion on Sex Offender Registration Act

The case is Reynolds v. United States. Justice Breyer's opinion for the Court finds essential the validity of the Attorney General's specification of the Act's applicability to pre-Act offenders and remands for consideration of that issue. Justice Scalia, joined by Justice Ginsburg, dissented.

January 23, 2012 | Permalink | Comments (0)

Unanimous Court reins in GPS monitoring for different reasons

The case is United States v. Jones. Justice Scalia's opinion for the Court views Katz as supplementing rather than replacing the earlier regulation of physical trespasses by government and relies on the trespass in placing a GPS device on a vehicle to conclude that a search occurred. Justice Alito's opinion concurring in the judgment, joined by Justices Ginsburg, Breyer, and Kagan, objects to the revival of the trespass focus but concludes a search occurred using the Katz test. Justice Sotomayor joined Justice Scalia's opinion but also concurred to agree with much of the Alito opinion.

January 23, 2012 | Permalink | Comments (1)

Sunday, January 22, 2012

Top-Ten Recent SSRN Downloads

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

Rank Downloads Paper Title
1 369 Racial Critiques of Mass Incarceration: Beyond the New Jim Crow
James Forman,
Yale University - Law School,
Date posted to database: November 29, 2011
2 258 How Law Protects Dignity
Jeremy Waldron,
New York University (NYU) - School of Law,
Date posted to database: December 17, 2011
3 204 Turning the Corner on Mass Incarceration?
David Cole,
Georgetown University Law Center,
Date posted to database: December 15, 2011 [4th last week]
4 197 Legal N-Grams? A Simple Approach to Track the ‘Evolution’ of Legal Language
Daniel Martin Katz, Michael James Bommarito, Michael James Bommarito, Julie Seaman, Adam Candeub, Eugene Agichtein,
Michigan State University - College of Law, University of Michigan, Department of Financial Engineering, University of Michigan, Department of Political Science, Emory University School of Law, Michigan State University College of Law, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: December 16, 2011 [3rd last week]
5 172 Neuroscience, Normativity, and Retributivism
Michael S. Pardo, Dennis Patterson,
University of Alabama School of Law, European University Institute,
Date posted to database: December 6, 2011
6 147 Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal Courts
Jenny Roberts,
American University, Washington College of Law,
Date posted to database: November 23, 2011
7 113 Petty Offenses, Drastic Consequences: Toward a Sixth Amendment Right to Counsel for Noncitizen Defendants Facing Deportation
Alice J. Clapman,
University of Baltimore School of Law,
Date posted to database: November 21, 2011 [8th last week]
8 79 Circumvention Tourism
I. Glenn Cohen,
Harvard Law School,
Date posted to database: December 1, 2011 [new to top ten]
9 72 The Benefits of a Right to Silence for the Innocent
Shmuel Leshem,
University of Southern California - Law School,
Date posted to database: September 30, 2011 [new to top ten]
10 67 Potentially Perverse Effects of Corporate Civil Liability
Samuel W. Buell,
Duke University School of Law,
Date posted to database: December 8, 2011 [new to top ten]

January 22, 2012 | Permalink | Comments (0)