February 20, 2012
King on Non-Capital Habeas Cases
Nancy J. King (Vanderbilt Law School) has posted Non-Capital Habeas Cases after Appellate Review: An Empirical Analysis (Federal Sentencing Reporter, Forthcoming) on SSRN. Here is the abstract:
In 2007, a team of researchers from the National Center for State Courts and Vanderbilt University Law School examined district court activity in 2384 randomly selected, non-capital habeas cases, approximately 6.5% of the non-capital habeas cases commenced in federal district courts in 2003 and 2004 by state prisoners. In this article, I follow those same cases into the courts of appeals. Even after appellate review, the number of non-capital petitioners receiving habeas relief remains less than the 1% rate of relief reported prior to AEDPA. Descriptive findings include appeals and requests to file successive petitions by circuit, and rulings on certificates of appealability by district and circuit. Detailed information on each case receiving relief in federal court is also included.
Thorburn on Identification, Surveillance, and Profiling
Malcolm Thorburn (Queen's University (Canada) - Faculty of Law) has posted Identification, Surveillance, and Profiling: On the Use and Abuse of Citizen Data (PREEMPTING CRIMINAL HARMS, Dennis, Sullivan, eds., Hart, 2012) on SSRN. Here is the abstract:
In this chapter, I do two things. First, I identify three conceptually distinct aspects of what is loosely called "surveillance." And second, I distinguish two ideal types of systems of surveillance: common law and continental. I argue that there is much to recommend the continental ideal type.
The first form of "surveillance" is identification. This is simply a mechanism for ensuring the continuity of identity over time and across space of individuals. This is not only relatively benign but actually a requirement of a well-ordered modern society. The second (surveillance, properly speaking) is more troubling. It is a mechanism for collecting specific information about specific individuals. But this is not nearly so worrisome as the third type: profiling. Here, the collate bits of specific information about specific individuals to form a profile that we may use to treat people differently according to the category that that profile falls into. This is often a mechanism for illegitimate discrimination and it often runs afoul of the presumption of innocence in the criminal process.
Common law countries are often far more concerned with identification schemes (and identification cards in particular) than they are with surveillance systems (such as CCTV) or with profiling. This, I argue, is a serious mistake - but it is one that is now deeply entrenched not only in our popular culture but also in the constitutional jurisprudence of countries such as Canada and the United States.
New blog on wrongful convictions
Mark Godsey (pictured) (Cincinnati Law) is the editor of this new blog, with a number of contributing editors, including international experts. Recent postings include "Japan: DNA Mistake and Possible Retrial in Mainali’s Case?," "The First Latin American Conference on Innocence Work to Take Place July 5th and 6th in Santiago, Chile," "Tipping Point: Is America finally saying no to prosecutorial overreach?," "Trial by Jury: Is It About Time for Nigeria?," and "Injustice to increase due to cuts in interpreter service?"
Tchividjian on Prior Bad Act Evidence in Child Sexual Abuse Prosecutions
Basyle J. Tchividjian (Liberty University School of Law) has posted Predators and Propensity: The Proper Approach for Determining the Admissibility of Prior Bad Acts Evidence in Child Sexual Abuse Prosecutions on SSRN. Here is the abstract:
The admissibility of prior bad act evidence in child sexual abuse prosecutions oftentimes makes the difference between a guilty and not guilty verdict. Recently, jurisdictions have growingly embraced the admission of such evidence for the purpose of establishing the defendant’s propensity to sexually victimize children. Due to the potentially high prejudicial effect of admitting propensity evidence, it is more critical than ever that courts carefully apply the decisive evidentiary gatekeeper, the probative value balancing test of Federal Rule of Evidence 403 and its state equivalents. Over the years, courts and legislators have attempted to develop analytical frameworks to be used by trial judges when evaluating the probative value of prior bad acts propensity evidence in child sexual abuse cases. Unfortunately, the framework most often applied by the courts in these cases has minimal correlation to the determination of propensity, but instead is premised upon the traditional Rule 404(b) basis of establishing proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, or accident. As a result, courts end up applying differing, and sometimes inconsistent frameworks that bear no rational relationship to one’s propensity to commit a child sexual offense. Without such a relationship, it is virtually impossible to meaningfully engage in a Rule 403 balancing test to determine the probative value of prior bad acts evidence being offered to establish propensity.
This Article proposes a new analytical framework (the “403 Propensity Proposal”) to be applied by courts when evaluating the admissibility of prior bad acts evidence in child sexual abuse prosecutions that directly correlates to the issue of propensity. If such evidence is to be admissible, courts must ensure that it be directly probative of researched behavioral patterns of those who sexually victimize children. The heart of this proposal is the consideration, evaluation, and application of three methods commonly employed by those who sexually victimize children. The 403 Propensity Proposal applies these three methods — trust, authority, and instrumental force/threats as factors in establishing a rational and consistent analysis for evaluating the probative weight of such propensity evidence. This Article culminates with the application of the 403 Propensity Proposal to a fictional case study involving a child sexual abuse prosecution where the prosecutor seeks to introduce the testimonies of three witnesses who allege prior sexual abuse by the defendant. The case study application demonstrates that the proposed propensity factors will better ensure that prosecutions for these types of crimes are based upon relevant and probative evidence that directly relates to one’s propensity to sexually victimize children. Both defendants and complainants are entitled to nothing less.
February 19, 2012
Penney on Impulse Control, Criminal Responsibility, and Neuroscience
Steven Penney (University of Alberta - Faculty of Law) has posted Impulse Control and Criminal Responsibility: Lessons from Neuroscience (International Journal of Law and Psychiatry, 2012) on SSRN. Here is the abstract:
Almost all of the world’s legal systems recognize the “M’Naghten” exception to criminal responsibility: the inability to appreciate the wrongfulness of action. This exception rests on the assumption that punishment is morally justified only if the defendant was able to choose whether to do wrong. Jurists and jurisdictions differ, however, on whether to extend M’Naghten’s logic to cases where the defendant understood the wrongfulness of an act but was incapable of resisting an impulse to commit it. In this article I ask whether contemporary neuroscience can help lawmakers to decide whether to adopt or retain this defence, known variously as the “irresistible impulse” defense or the “control” or “volitional” test for insanity. More specifically, I ask firstly, whether it is empirically true that a person can understand the wrongfulness of an act yet be powerless to refrain from committing it; and second (assuming an affirmative answer to the first), whether the law of criminal responsibility can practically accommodate this phenomenon? After canvassing the relevant neuroscientific literature, I conclude that the answer to the first question is “yes.” After examining the varied treatment of the defence in the United States and other nations, I also give an affirmative answer to the second question, but only in limited circumstances. In short, the defence of irresistible impulse should be recognized, but only when it can be shown that the defendant experienced a total incapacity to control his or her conduct in the circumstances.
Steiker & Steiker on the ALI and the Death Penalty
Carol S. Steiker (pictured) and Jordan M. Steiker (Harvard Law School and University of Texas School of Law) have posted No More Tinkering: The American Law Institute and the Death Penalty Provisions of the Model Penal Code (Texas Law Review, Vol. 89, No. 2, p. 353, 2010) on SSRN. Here is the abstract:
This Special Feature contains the full text of the report we wrote for the American Law Institute that provided the scholarly background for the ALI’s eventual withdrawal of the death penalty provisions of the Model Penal Code. The report is exactly as it was submitted to the ALI, and it is preceded by an introduction providing some historical context regarding the ALI’s involvement with the death penalty and describing the report’s production and aftermath.
This week's oral argument
Summary is from ScotusBlog, which also links to papers:
- Blueford v. Arkansas: Whether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars the reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense.
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