CrimProf Blog

Griffin on Narrative, Truth & Trial

Lisa Kern Griffin (Duke University - School of Law) has posted Narrative, Truth & Trial (101 Georgetown Law Journal 281 (2012)) on SSRN. Here is the abstract:

This article critically evaluates the relationship between constructing narratives and achieving factual accuracy at trials. The story model of adjudication — according to which jurors process testimony by organizing it into competing narratives — has gained wide acceptance in the descriptive work of social scientists and currency in the courtroom, but it has received little close attention from legal theorists. The article begins with a discussion of the meaning of narrative and its function at trial. It argues that the story model is incomplete, and that “legal truth” emerges from a hybrid of narrative and other means of inquiry. As a result, trials contain opportunities to promote more systematic consideration of evidence. Second, the article asserts that, to the extent the story model is descriptively correct with respect to the structure of juror decision making, it also gives rise to normative concerns about the tension between characteristic features of narrative and the truth-seeking aspirations of trial. Viewing trials through the lens of narrative theory brings sources of bias and error into focus and suggests reasons to increase the influence of analytic processes. The article then appraises improvements in trial mechanics — from prosecutorial discovery obligations through appellate review of evidentiary errors — that might account for the influence of stories. For example, a fuller understanding of narrative exposes the false assumption within limiting instructions that any piece of evidence exists in isolation. And to better inform how adjudicators respond to stories in the courtroom, the article argues for modifying instructions in terms of their candor, explanatory content, and timing.

Lee on Deigh & Dolinko on the Philosophy of Criminal Law

Youngjae Lee (Fordham University School of Law) has posted What is Philosophy of Criminal Law? (Criminal Law and Philosophy, 2013, Forthcoming) on SSRN. Here is the abstract:

Review of John Deigh & David Dolinko, The Oxford Handbook of Philosophy of Criminal Law (2011).

Young on U.S Firearms Trafficking and Mexican Drug Cartel Violence

Stewart M. Young (University of Wyoming - College of Law) has posted Going Nowhere 'Fast' (or 'Furious'): The Nonexistent U.S. Firearms Trafficking Statute and the Rise of Mexican Drug Cartel Violence (University of Michigan Journal of Law Reform, Vol. 46, p. 1, 2012) on SSRN. Here is the abstract:

Drug trafficking violence in Mexico, now reaching epidemic proportions, greatly impacts both the Mexican and United States governments. Despite the escalation of the “War on Drugs,” drug trafficking from Mexico to the United States continues largely unabated, stifling tourism revenue and lawful economic opportunities, and causing violence previously unknown in Mexico. Thus far, the United States’ efforts to deal with this drug trafficking and violence include the recent debacle of Operation Fast and Furious. News regarding this Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) operation shocked citizens and lawmakers alike, as Fast and Furious allowed firearms to “walk” down to Mexico unimpeded in a futile attempt to identify firearms traffickers in Mexican drug cartels. Ultimately, this operation led to the presence of over two thousand additional firearms in Mexico, contributing to continued violence south of the U.S. border and the possibility of spillover violence back into the United States. An analysis of Operation Fast and Furious and other law enforcement attempts to stop firearms trafficking and drug cartel violence in Mexico demonstrates that the development and tactics of these operations require a more comprehensive approach to the problems facing Mexico and the United States.

This Article discusses extraterritoriality, and the effects of U.S. domestic criminal laws on a foreign country, in the context of U.S. domestic firearms trafficking laws. First, this Article lays out the problem: Mexican drug cartels are receiving thousands of weapons from the United States with which to create havoc and wreak violence upon both nations. It then discusses the dynamics of that problem, which include addressing the current legal framework and the NRA lobbying effort against restrictions on firearms. The Article examines the ATF’s Project Gunrunner and Operation Fast and Furious and argues that the lack of a simple and strong firearms trafficking statute contributed to ATF’s decision to implement Operation Fast and Furious, thereby contributing to large numbers of firearms heading south to Mexico. The Article further argues that without a true comprehensive firearms trafficking statute, the combined efforts of the United States and Mexico to stem the southbound flow of firearms and resulting drug violence will ultimately fail. Besides seeking to contribute to the dialogue on solving a looming and important problem, this Article endeavors to promote discussion about the extraterritorial effects of U.S. domestic criminal laws. Ultimately, it argues that, in certain contexts, the positive extraterritorial effects of such laws should take priority over complaints about their negligible domestic effects.

Nemerov on Castle Doctrine Laws and Violent Crime

Howard Ross Nemerov (Texas A&M University) has posted Do Castle Doctrine Laws Impact Violent Crime? on SSRN. Here is the abstract:

Cheng Cheng and Mark Hoekstra, both of the Texas A&M University Economics Department, recently published a paper entitled “Does Strengthening Self-Defense Law Deter Crime or Escalate Violence? Evidence from Castle Doctrine.” They concluded that Castle Doctrine enhancements to self-defense law had no deterrent effect on burglary, robbery and aggravated assault, and increased murder. However, there are a number of errors, assumptions, and miscalculations in their research that justify revisiting the question of whether or not Castle Doctrine laws have any impact on crime.

Chen on California's Three-Strikes Law in Operation

Elsa Y. Chen (Santa Clara University--Political Science) has posted In the Furtherance of Injustice, Injustice, or Both? A Multilevel Analysis of Courtroom Context and the Implementation of Three Strikes (Justice Quarterly, pp. 1-30, 2012) on SSRN. Here is the abstract:

A hierarchical logistic model is used to analyze data on Three Strikes-eligible offenders in California and the counties in which they are sentenced. The analysis finds that discretion is widely exercised by elected prosecutors and judges in the administration of Three Strikes. Discretion functions as a “safety valve” and preserves some sentencing proportionality, but may also allow political concerns to influence sentencing decisions. A more conservative political environment is strongly associated with stricter application of the law. Consistent with racial threat theory, eligible felons are more likely to receive Three Strikes sentences in counties with larger Latino populations. However, the size of the black population has no significant effect. Higher unemployment rates are associated with more stringent application of the law. Prosecutorial and judicial discretion benefits offenders unequally. Controlling for legally relevant factors, black offenders are more likely to receive Three Strikes sentences, while younger ones are less likely.

Leary on Commercial Erosion of Fourth Amendment Protection

Mary Leary (Catholic University of America (CUA)) has posted The Missed Opportunity of United States v. Jones - Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World (15 University of Pennsylvania Journal of Constitutional Law 331 (2012)) on SSRN. Here is the abstract:

The Fourth Amendment protects people from unreasonable searches and seizures by the government. These protections, therefore, are only triggered when the government engages is a “search” or “seizure.” For decades, the Court defined “search” as a government examination of an area where one has a “reasonable expectation of privacy.” Such an expectation requires both that the individual demonstrate a subjective expectation of privacy and that the expectation is one society finds reasonable. In 1974, Anthony Amsterdam prophesized the unworkability of this test, warning of a day that the government would circumvent it my merely announcing 24 hour surveillance. Similarly, the Court has stated that it would adjust the definition of a search if the government tried to “condition” citizens to have no expectation of privacy. 

Today, those concerns have come to bear, but not in the way Amsterdam or the Court predicted, and the Court has failed to respond. Today, private commercial entities, not the government, have utilized technology to “condition” citizens to have no expectation of privacy. They have done so on two particular levels. First, these commercial entities have obtained private data about citizens, i.e. information from their “digital dossier.” They have then revealed the information to others resulting in citizens feeling as though “nothing is private.” Second, when these entities obtain the data, they do not afford the individuals the opportunity to “demonstrate” their subjective expectation of privacy. Since a “search” requires a demonstration of a subjective expectation of privacy, and these commercial entities have used today’s technology to strip citizens of any expectation of privacy or ability to demonstrate one, then little the government examines will constitute a “search” and trigger Fourth Amendment protections. 

This article identifies this assault on the expectation of privacy due to “commercial conditioning” of the consumer and proposes a viable legislative solution. It examines the Court’s existing approaches, including a thorough analysis of the recently articulated frameworks announced in the majority and concurring opinions of United States v. Jones, noting their inadequacy for today’s technological challenges. Utilizing the example of satellite imaging technology, it demonstrates the threat to privacy expectations unanticipated by the Court. This article proposes a new legislative framework for respecting privacy protections in response to these commercial induced privacy affronts. This framework, supported by analogous American law and European proposals, calls for an opt-in model. Before a citizen can be assumed to have voluntarily sacrificed his privacy, he must meaningfully opt in to the sharing of his private data. Such an opt-in must not conditioned upon the service but must be uncoerced. 

This approach advocates for addressing this unanticipated problem further upstream than other solutions by focusing on the commercial entities and not the later police action. It is rooted in the concept of ownership of one’s digital footprint and, therefore, the right to control one’s data.

Koehler on the Foreign Corrupt Practices Act Guidance

Mike Koehler (Southern Illinois University School of Law) has posted Grading the Foreign Corrupt Practices Act Guidance (White Collar Crime Report, 7, 961, December 2012) on SSRN. Here is the abstract:

This article is a critical analysis of the Foreign Corrupt Practices Act Guidance released by the Department of Justice and Securities and Exchange Commission. Issues discussed in the article include the following: (i) the enforcement agencies' motivations in issuing the Guidance and the fact that it should have been issued years ago; (ii) the utility of the Guidance from an access-of-information perspective and how the Guidance can be used as a measuring stick for future enforcement agency activity; (iii) how the Guidance is an advocacy piece and not a well-balanced portrayal of the FCPA as it is replete with selective information, half-truths, and, worse information that is demonstratively false; (iv) how, despite the Guidance, much about FCPA enforcement remains opaque; and (v) how, despite the Guidance, FCPA reform remains a viable issue.

Sarma on Cultural Competence and Capital Jury Selection

Bidish Sarma (University of Califonia, Berkeley School of Law) has posted Challenges and Opportunities in Bringing the Lessons of Cultural Competence to Bear on Capital Jury Selection (University of Memphis Law Review, Vol. 42, No. 907, 2012) on SSRN. Here is the abstract:

The growing call to teach lawyers, investigators, mitigation specialists, and law students the skills required to provide culturally competent representation should be welcomed by all. A culturally insensitive criminal justice system has tolerated unfair processes and delivered unjust outcomes for too long. While the push for cultural competence has appropriately prioritized the attorney client relationship (reaching defense teams as a first step), at the present time less attention has been given to how to influence the views of other key actors, including prosecutors, legislators, judges, and jurors. This article specifically considers jurors in death penalty cases and contemplates how defense teams can utilize the lessons of cultural competence in questioning and selecting the jurors who will decide whether their client lives or dies. 

In setting out how a cultural competency lens could benefit defense teams, this Article also identifies significant legal and practical obstacles that may prevent the implementation of an ideal selection process. This article represents only an initial attempt to think through the implications of cultural competency and jury selection. Although this is in some ways an embryonic idea, there already exists a significant body of empirical research assessing how capital juries make their sentencing decisions. That research has provided invaluable insight, and some of its most important findings support the idea that lessons of cultural competence can make a meaningful difference in capital jury selection. This article draws on available research, suggests avenues for future research, and encourages a subtle but potentially significant shift in how capital defense teams approach jury selection. 

This article contains five parts. To set the backdrop for the claim that cultural competency should influence the defense's approach to capital jury selection, Part II explores why culture is critical in death penalty cases. Part III then describes and identifies as a serious concern the vast cultural gap between death penalty defendants and the jurors typically selected to serve on capital juries. By looking at the effects that death-qualification and peremptory challenges have upon the jury's composition and considering the jury selection process's psychological effects on selected jurors, this Part recognizes that the cultural gap is largely inherent to the system. Part IV outlines thoughts on how lawyers can draw upon key lessons from cultural competency and implicit bias research to both select culturally competent jurors and make selected jurors more culturally competent. Part V concludes.

Penney on Police Questioning in the Charter Era

Steven Penney (University of Alberta - Faculty of Law) has posted Police Questioning in the Charter Era: Adjudicative versus Regulatory Rule-Making and the Problem of False Confessions ((2012) 57 Supreme Court Law Review (2d) 263 , Unsettled Legacy: Thirty Years of Criminal Justice under the Charter, p. 297, Benjamin L. Berger and James Stribopoulos, eds., LexisNexis, 2012) on SSRN. Here is the abstract:

Unlike in the areas of detention and search, Parliament has played no role in regulating the questioning of adult criminal suspects by police. This paper examines the implications of this legislative silence. Critics of the courts’ use of the ancillary powers doctrine in the law of detention and search have argued that the optimal regulation of police investigative practices requires robust legislative input. I argue that the same is true of police questioning. But given the improbability that this will happen, I argue that appellate courts should adopt a more robustly “regulatory” (as opposed to “adjudicative”) approach to both the common law confessions rule and section 10(b) of the Charter. I then explore how such an approach could better address the chief policy issue raised by police questioning: false confessions.

Gaughan on Federal Prosecutions for State and Local Campaign Contributions

Anthony Gaughan (Drake University Law School) has posted The Case for Limiting Federal Criminal Jurisdiction over State and Local Campaign Contributions (Arkansas Law Review, Vol. 65, No. 3, October 2012) on SSRN. Here is the abstract:

The thesis of this article is that Congress should amend the honest services fraud statute, 18 U.S.C. §1346, to bar the Justice Department from using it to prosecute individuals for making or receiving allegedly “corrupt” campaign contributions in state or local elections. This reform is necessary for three reasons. First, it is deeply unfair to subject state and local defendants to federal criminal liability on the basis of a vague federal statute and at a time when campaign finance law at all levels of government is in a state of flux. Second, federal prosecutors’ controversial use of Section 1346 to prosecute state and local candidates and contributors undermines the Justice Department’s reputation for political neutrality. Third, Section 1346 prosecutions of state and local candidates and contributors contradict basic principles of federalism. Curtailing the use of the honest services fraud statute will prevent federal prosecutors from imposing their own vision of campaign finance law on candidates and contributors in state and local elections. It will restore state attorneys general to their proper place as the principal enforcers of state campaign finance law. And it will help reduce, if not eliminate, the growing perception that political considerations improperly influence honest services fraud prosecutions.

Bartels on Sentencing Scammers

Lorana Bartels (University of Canberra - School of Law and Justice) has posted Sentencing Scammers: Law and Practice (Trends and Issues in Crime and Criminal Justice No 443, Australian Institute of Criminology, 2012) on SSRN. Here is the abstract:

Consumer fraud costs Australians almost $1b a year and most of this fraud involves scams in which individuals are persuaded to part with an upfront, or advance, fee, with the promise of large financial or other gain in the future.

In this paper, consideration is given to the sentencing issues that apply in cases of this nature. In particular, the author examines the application of the key sentencing purposes, such as deterrence and rehabilitation, and the sentencing principles applied by courts, such as the proportionality principle, and the challenges that may arise in this context.

Key sentencing factors often cited in aggravation or mitigation are also reviewed, before an examination of some of the issues relating to specific sentencing options is undertaken. This paper goes some way in providing a brief analysis of sentencing practices. However, further research is required to better explore how sentencers respond to consumer fraud matters.

Carrington on Counseling Conscience

William Tucker Carrington (University of Mississippi - School of Law) has posted Counseling Conscience (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

The "innocent accused" scenario, in which a client comes to a lawyer and confesses a crime for which an innocent man has been accused is frequent fodder in legal ethics classes. Typically the focus is on concepts of confidentiality and privilege or, perhaps, whether a lawyer can, or should, reveal what the client has confessed in the interest of “justice” or "truth." The focus in this article, which is one of several comprising a symposium edition in The Ohio State Journal of Criminal Law – entitled "Confidential Confessions: How Lawyers, Clergy and Psychologists Counsel the Guilty" – is different. Its charge is to compare how members of various professional disciplines would counsel the confessing client in this situation, particularly about whether “moral considerations” ought to be a part of the counseling, and, if so, in what form. (The factual aspect of the hypothetical is based loosely on Morales v. Portuondo, 154 F. Supp. 2d 706 (2001)). The jumping off point, as it were, is that a former client, named Steven, has come to the lawyer's office and, after explaining the situation in which he finds himself, asks: "What do you think I should do?"

This particular article approaches the problem from an attorney's point-of-view, specifically this author's – the director of an innocence project whose client base is composed of wrongfully convicted prisoners. The article argues that a conversation with Steven about “moral considerations” is not only wise, but an absolute professional requirement. As the article explains, however, that position does not arise out of the context of “innocence work” as a specific practice area, or put differently, the requirement of “moral counseling” is not the result of valuing “innocence” as the predominant moral coin of the realm. Instead, this article urges that such counseling is part and parcel of attorneys’ fundamental obligation to the client, culpable or not. 

While the wrongfully convicted – or, in this case, the guilty but free – adds a certain urgency to the attorney-client counseling and poignancy to the issues that confront it, an attorney’s obligation to counsel the client is frequently not only the most important aspect of the attorney-client relationship, but one that many lawyers are uncomfortable with and as a consequence devalue or even ignore. Sadly, this approach is reinforced by courts’ treatment of the value of counseling, which as a matter of law is almost completely factored out of any consideration that gauges the effectiveness of an attorney’s representation.

Kim on Bills of Attainder and Non-traditional Punishments

Andrew Kim has posted Falling from the Legislative Grace: The ACORN Defunding and the Proposed Restraint of Congress' Appropriations Power Through the Bill of Attainder Clause on SSRN. Here is the abstract:

This Comment discusses the interplay between the Bill of Attainder Clause and the Appropriations Clause. It uses the ACORN case to highlight the issues that result from applying the prohibition against attainder to non-traditional "punishment," e.g., an appropriations ban.

"Crime labs need greater scrutiny, discipline"

Martin Yant has this post at The Wrongful Conviction Blog, concluding, "Forensic fraud and error are major causes of wrongful convictions, and that’s not likely to change without a lot more housecleaning at the nation’s crime labs."

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	765	Ideology, Motivated Reasoning, and Cognitive Reflection: An Experimental Study  Dan M. Kahan,  Yale University - Law School,  Date posted to database: November 30, 2012
2	385	Prison Visitation Policies: A Fifty State Survey  Chesa Boudin, Trevor Stutz, Aaron Littman,  Yale University - Law School, Yale University - Law School, Yale University - Law School,  Date posted to database: November 6, 2012
3	178	Who Will Protect the Children? The Untold Story of Unaccompanied Minors in Witness Protection Programs  Michal Gilad,  American Association of University Women (AAUW),  Date posted to database: November 8, 2012 [7th last week]
4	176	The Crime and Punishment of States  Gabriella Blum,  Harvard Law School,  Date posted to database: October 22, 2012
5	163	Prosecutors and Professional Regulation  Bruce A. Green,  Fordham University School of Law,  Date posted to database: November 17, 2012
6	162	Exclusion and Control in the Carceral State  Sharon Dolovich,  University of California, Los Angeles - School of Law,  Date posted to database: November 6, 2012
7	149	Can the CEO Learn from the Condemned? The Application of Capital Mitigation Strategies to White Collar Cases  Todd Haugh,  Illinois Institute of Technology - Chicago-Kent College of Law,  Date posted to database: October 19, 2012 [8th last week]
8	136	Unregulated Corporate Internal Investigations: Achieving Fairness for Corporate Constituents  Bruce A. Green, Ellen S. Podgor,  Fordham University School of Law, Stetson University College of Law,  Date posted to database: December 6, 2012 [new to top ten]
9	143	Preventing Mass Atrocity Crimes: The Responsibility to Protect and the Syria Crisis Paul R. Williams, J. Trevor Ulbrick, Jonathan Worboys,  American University - Washington College of Law, Public International Law & Policy Group, Public International Law & Policy Group,  Date posted to database: November 13, 2012 [10th last week]
10	143	Teaching Prison Law  Sharon Dolovich,  University of California, Los Angeles - School of Law,  Date posted to database: November 6, 2012 [9th last week]