CrimProf Blog

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

Tuesday, March 26, 2013

Roberts on Jury Exclusion for Criminal Convictions

Roberts annaAnna Roberts (Seattle University School of Law) has posted Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions (Minnesota Law Review, Vol. 98, Forthcoming) on SSRN. Here is the abstract:

Statutes in forty-eight states permit the exclusion of those with felony convictions from criminal juries; thirteen states permit the exclusion of those with misdemeanor convictions. The reasons given for these exclusions, which include the assumption that those with convictions are embittered against the state, do not justify their costs. Procedural justice theories indicate that embitterment of those with criminal convictions need not – and should not – be assumed. Rather, policymakers should do what they can to avoid such embitterment. This Article therefore proposes that automatic statutory exclusions on the basis of criminal convictions should be abandoned. If a juror exhibits individual bias, he or she can be excused for cause. If the state presumes embitterment in the absence of any showing of individual bias, it can exercise peremptory challenges. These are finite in number, and thus exact a litigation cost that may incentivize reform. A rich body of recent scholarship proposes adjustments to prosecutorial incentives in other areas of the criminal justice system; this Article adds a focus on jury exclusion to that literature, and to other recent policy critiques.

March 26, 2013 | Permalink | Comments (0)

Ally on the Exclusionary Rule and Factual Guilt in South Africa

Dane Ally (Tshwane University of Technology) has posted Determining the Effect (the Social Costs) of Exclusion Under the South African Exclusionary Rule: Should Factual Guilt Tilt the Scales in Favour of the Admission of Unconstitutionally Obtained Evidence? (Potchefstroom Electronic Law Journal, Vol. 15, No. 5, 2012) on SSRN. Here is the abstract:

Section 35(5) of the Constitution of the Republic of South Africa, 1996 governs the exclusion of unconstitutionally obtained evidence in criminal trials. Three groups of factors must be considered to assess whether unconstitutionally obtained evidence should either be excluded or admitted. This contribution is focussed on the third group of factors (also known as the "effect of exclusion", or the "social costs of exclusion") which consists of the "seriousness of the charge faced by the accused", and the "importance of the evidence to secure a conviction". This group of factors is concerned with the public interest in crime control. Some scholars argue that the "public mood" should be a weighty factor when our courts consider this group of factors. 

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March 26, 2013 | Permalink | Comments (0)

Bambauer on Defending the Dog

Bambauer janeJane Bambauer (University of Arizona - James E. Rogers College of Law) has posted Defending the Dog (92 OR. L. Rev. __ (2013, Forthcoming)) on SSRN. Here is the abstract:

This short essay makes the uneasy case for the narcotics dog. Those in favor of U.S. drug enforcement presumably need no convincing, but this Article intends to address the concerns of skeptics who worry about unjust drug enforcement, or who believe that criminalization is just plain bad policy. Dogs are just the first generation of a new set of law enforcement tools that can help us divorce criminal investigation from the bias and discretion that comes with traditional policing. 

Part I presents the results of new survey research showing that Americans are much more likely to believe police dogs violate the right to privacy when they are used to detect drugs than when they are used to detect dead bodies. Instincts about privacy and criminal procedure are influenced by the unpopularity of drug enforcement policies.

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March 26, 2013 | Permalink | Comments (0)

Buell on the Alleged Privilege of White Collar Offenders

Buell samuelSamuel W. Buell (Duke University School of Law) has posted Is the White Collar Offender Privileged? (Duke Law Journal, Vol. 63, 2013) on SSRN. Here is the abstract:

For at least a decade, and especially since the banking catastrophe, much public commentary has asserted or implied that the American criminal justice system unjustly privileges individuals who commit crimes in corporations and financial markets. This Article demonstrates that this claim is not so, at least not in the ways commonly believed. Law and practice controlling sentencing, evidence, and criminal procedure cannot persuasively be described as privileging the white collar offender. Substantive criminal law makes charges easier to bring and harder to defend against in white collar cases.

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March 26, 2013 | Permalink | Comments (0)

Opinion applying US v Jones to drug-sniffing dog on front porch of home

Justice Scalia delivered the opinion of the Court in Florida v. Jardines. Justice Kagan concurred, joined by Justices Ginsburg and Sotomayor. Justice Alito, joined by Justices Kennedy and Breyer and Chief Justice Roberts, dissented.

March 26, 2013 | Permalink | Comments (0)

Monday, March 25, 2013

Hamilton on Sentencing Policy Adjudication and Empiricism

Hamilton melissaMelissa Hamilton (University of Houston Law Center) has posted Sentencing Policy Adjudication and Empiricism (Georgia State University Law Review, Forthcoming) on SSRN. Here is the abstract:

Federal sentencing is in disarray with a raging debate pitting Congress, the United States Sentencing Commission, and the federal judiciary against each other. Ever since the Supreme Court rendered the federal guidelines as merely advisory in United States v. Booker, the rate of variances from guidelines’ recommendations has increased. After the Supreme Court in Kimbrough v. United States ruled that a sentencing judge could reject the crack cocaine guideline for a policy dispute with a Commission guideline, the variance rate has risen further still. While Booker/Kimbrough permits the judiciary some discretionary authority, it is threatening to the Commission and the legitimacy of its guidelines.

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March 25, 2013 | Permalink | Comments (0)

Brooks on the Right to be Punished

Brooks thomThom Brooks (Durham University) has posted The Right to Be Punished: A Defense (Legal Theory in China (2013) (in English and Chinese), Forthcoming) on SSRN. Here is the abstract:

Punishment would not deserve its name if it was a response that most want to avoid. Can we say that we – you and I – have a right to be punished? Or does this claim rest on a fundamental mistake? This article argues that there is a fundamental connection between rights and punishment that is too often overlooked. Punishment is not about the suspension or forfeiture of rights, but their restoration and protection.

March 25, 2013 | Permalink | Comments (0)

SpearIt on Culture and Harsh Punishment

SpearitSpearIt (Saint Louis University - School of Law) has posted Legal Punishment as Civil Ritual: Making Cultural Sense of Harsh Punishment (Mississippi Law Journal, Vol. 82, No. 1, 2013) on SSRN. Here is the abstract:

This work examines mass incarceration through a ritual studies perspective, paying explicit attention to the religious underpinnings. Conventional analyses of criminal punishment focus on the purpose of punishment in relation to legal or moral norms, or attempt to provide a general theory of punishment. The goals of this work are different, and instead try to understand the cultural aspects of punishment that have helped make the United States a global leader in imprisonment and execution. It links the boom in incarceration to social ruptures of the 1950s and 1960s and posits the United States’ world leader status as having more to do with culture than crime. This approach has been largely overlooked by legal scholars, yet ritual studies enhance understanding of law and legal institutions. A ritual perspective illuminates the religious history of criminal justice, challenges traditional dogmas that hold punishment as a rational response to crime, and explains why some people must suffer so that others may feel secure.

March 25, 2013 | Permalink | Comments (0)

Dickey on Passenger Standing

Sarah L. Dickey has posted The Anomaly of Passenger 'Standing' to Suppress All Evidence Derived from Illegal Vehicle Seizures under the Exclusionary Rule: Why the Conventional Wisdom of the Lower Courts is Wrong (Mississippi Law Journal, Vol. 82, No. 1, 2013) on SSRN. Here is the abstract:

The current method of determining passenger “standing” broadens the Exclusionary Rule to include passengers whose own Fourth Amendment rights may not have been violated. Crime-committing passengers are currently afforded a “windfall” in the form of suppressed evidence, simply because courts assume that all evidence found in the illegal seizure of a vehicle is tainted.

The conventional method of the lower courts to determine passenger “standing” to suppress all evidence derived from an illegal traffic stop breaks with the traditional analysis of “standing” used for every other violation of the Fourth Amendment. It affords vehicle passengers with a blanket right to suppress evidence that they would not have with a Fourth Amendment violation in a comparable setting, i.e. while walking down the street or as a short-term house guest. This comment proposes a different method of determining passenger “standing:” the Personal Rights approach.

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March 25, 2013 | Permalink | Comments (0)

Sunday, March 24, 2013

Bellin on eHearsay

Bellin jeffreyJeffrey Bellin (William & Mary Law School) has posted eHearsay (Minnesota Law Review, Vol. 98, 2013) on SSRN. Here is the abstract:

This Article proposes a new “eHearsay” rule of evidence that will permit the admission, over a hearsay objection, of a broad spectrum of electronic out-of-court communications. The proposal builds on prior hearsay reform proposals, and also takes advantage of the fact that electronic statements are invariably recorded. Litigants’ ability to show jurors actual text messages, Facebook “status updates” and Twitter “tweets” authored by percipient witnesses shortly after a disputed event and prior to litigation makes these out-of-court statements compelling vehicles to liberalize the much-maligned American hearsay prohibition. In fact, the new communication norm of generating real-time observations in recorded text messages and social media posts could – in concert with the proposed hearsay exception – transform American litigation’s longstanding struggle with uncooperative, unavailable and forgetful witnesses.

March 24, 2013 | Permalink | Comments (0)

Sohoni on Notice and the New Deal

Sohoni milaMila Sohoni (New York University School of Law) has posted Notice and the New Deal (Duke Law Journal, Vol. 62, p. 1169, 2013) on SSRN. Here is the abstract:

The New Deal Supreme Court revised a well-known set of constitutional doctrines. Legal scholarship has principally focused on the changes that occurred in three areas — federalism, delegation, and economic liberty. This Article identifies a new and important fourth element of New Deal constitutionalism: a change in the constitutional doctrine of due process notice, the doctrine that specifies the minimum standards for constitutionally adequate notice of the law. The law of due process notice — which includes the doctrines of vagueness, retroactivity, and the rule of lenity — evolved dramatically over the course of the New Deal to permit lesser clarity and to tolerate more retroactivity. The upshot has been the near-total elimination of successful notice-based challenges other than in the limited context of First Amendment vagueness attacks.

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March 24, 2013 | Permalink | Comments (0)

Deuschlel on Guidelines Variance Calculations

Nicholas Deuschle has posted Fun with Numbers: Gall's Mixed Message Regarding Variance Calculations (University of Chicago Law Review 2013, Forthcoming) on SSRN. Here is the abstract:

This Comment seeks to resolve an unaddressed issue stemming from recent developments in the Supreme Court’s sentencing jurisprudence. In Gall v. United States, the Supreme Court required that appellate courts "consider the extent of the deviation" of criminal sentences imposed outside the Sentencing Guidelines range. The Court, however, provided little guidance as to what this requirement means. Specifically, how should appellate courts calculate that deviation from the Sentencing Guidelines?

March 24, 2013 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 15037 Ham Sandwich Nation: Due Process When Everything is a Crime 
Glenn Harlan Reynolds
University of Tennessee College of Law, 
Date posted to database: January 20, 2013 
2 503 The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information 
David Pozen
Columbia Law School, 
Date posted to database: February 25, 2013 
3 345 Federal Tax Crimes, 2013 
John A. TownsendJohn A. Townsend
University of Houston School of Law, Townsend and Jones, LLP, 
Date posted to database: February 7, 2013 
4 179 Targeting and the Concept of Intent
Jens David Ohlin
Cornell University - School of Law, 
Date posted to database: February 12, 2013 [6th last week]
5 161 Effective Trial Counsel after Martinez v. Ryan: Focusing on the Adequacy of State Procedures 
Eve Brensike Primus
University of Michigan at Ann Arbor - Law School - Faculty, 
Date posted to database: January 20, 2013 [8th last week]
6 128 Colorado Capital Punishment: An Empirical Study 
Justin F. MarceauSam Kamin,Wanda Foglia
University of Denver - Sturm College of Law, University of Denver Sturm College of Law, Rowan University, 
Date posted to database: January 31, 2013 [10th last week]
7 124 Does International Law Matter? 
Shima BaradaranMichael Findley,Daniel NielsonJ. C. Sharman
Brigham Young University - J. Reuben Clark Law School , University of Texas at Austin, Brigham Young University, Griffith University, 
Date posted to database: February 8, 2013 [9th last week]
8 118 Policing the Firm 
D. Daniel Sokol
University of Florida - Levin College of Law, 
Date posted to database: March 9, 2013 [new to top ten]
9 113 Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause: Rediscovering the Eighth Amendment's 'Economic Survival' Norm 
Nicholas M. McLean
Yale University, 
Date posted to database: February 4, 2013 [new to top ten]
10 108 Is Expert Evidence Really Different?
Frederick SchauerBarbara A. Spellman
University of Virginia School of Law, University of Virginia School of Law, 
Date posted to database: February 2, 2013 [new to top ten]


March 24, 2013 | Permalink | Comments (0)