Thursday, December 31, 2015
Clayton E. Cramer (College of Western Idaho) has posted Why the FBI's Justifiable Homicide Statistics are a Deceptive Measure of Defensive Gun Use on SSRN. Here is the abstract:
As part of the FBI’s Uniform Crime Reports system, the FBI gathers and reports both civilian and police officer justifiable homicide statistics. The methods by which these numbers are gathered make them gross undercounts of the actual legal, defensive homicides by citizens. Furthermore, comparing the civilian justifiable homicide numbers to criminal homicides for public policy cost/benefit analysis understates the crime reducing effects of civilian gun ownership.
William K. S. Wang (University of California, Hastings College of the Law) has posted Application of the Federal Mail and Wire Fraud Statutes to Criminal Liability for Stock Market Insider Trading and Tipping (University of Miami Law Review, Vol. 70, No. 220, 2015) on SSRN. Here is the abstract:
SEC Rule 10b-5 covers a great deal of stock market insider trading and tipping, but certainly not all.
For insider trading defendants, some elements of criminal liability may be different and possibly easier to satisfy under mail/wire fraud than under SEC Rule 10b-5 (e.g., materiality, and the requirements for tipper and tippee liability recently tightened for Rule 10b-5 by the Second Circuit). Generally, courts have not addressed these possible differences.
With insider trading and tipping, the victim of mail/wire fraud could be either the information-owner or the party on the other side of the transaction. The courts have not examined the latter victim and the possibility that such mail/wire fraud liability might be broader than under the Rule 10b-5 “classical relationship.”
Wednesday, December 30, 2015
Thomas D. Lyon , Lindsay Erin Wandrey , Elizabeth C. Ahern , Robyn Carbone Licht , Megan Simand Jodi Quas (University of Southern California - Gould School of Law , University of California, Irvine , University of Cambridge , University of Southern California , University of Cambridge and University of California, Irvine - Department of Criminology, Law and Society) have posted Eliciting Maltreated and Nonmaltreated Children's Transgression Disclosures: Narrative Practice Rapport Building and a Putative Confession (85 Child Development 1756 (2014)) on SSRN. Here is the abstract:
This study tested the effects of narrative practice rapport building (asking open-ended questions about a neutral event) and a putative confession (telling the child an adult “told me everything that happened and he wants you to tell the truth”) on 4- to 9-year-old maltreated and nonmaltreated children’s reports of an interaction with a stranger who asked them to keep toy breakage a secret (n = 264). Only one third of children who received no interview manipulations disclosed breakage; in response to a putative confession, one half disclosed. Narrative practice rapport building did not affect the likelihood of disclosure. Maltreated children and nonmaltreated children responded similarly to the manipulations. Neither narrative practice rapport building nor a putative confession increased false reports.
Many on-the-street interactions (which in Fourth Amendment jargon are often called “encounters”) are not subject to Fourth Amendment regulation. Encounters outside the Fourth Amendment vary from the non- or minimally intrusive, such as exchanges of pleasantries or mutually useful information, up to the very intrusive, such as asking for identification, following an individual for an extended period of time, or questioning them.
Encounters are one of the most common ways in which the public interact with the police. But the police have no right to insist that the public participate in these encounters. The public need not accede to government officials’ demands that they comply or cooperate with the police willy-nilly. Instead, the individual may challenge a police officer to provide reasons that demonstrate that law enforcement’s request to participate in an encounter is reasonable and grounded in law. The public thus get to participate in policing by contesting its lawful limits. Where those limits are reached, the government official must recognize the right of the citizen to decline to participate. But even where the official has the legal authority to demand compliance with her instructions, she must still treat the individual with respect, as someone with the sort of political standing that entitles her to have reasons that justify government interference with her person or property.
Tuesday, December 29, 2015
Kay L. Levine and Ronald F. Wright (Emory University School of Law and Wake Forest University - School of Law) have posted Prosecutor Risk, Maturation, and Wrongful Conviction Practice (Law and Social Inquiry, Forthcoming) on SSRN. Here is the abstract:
In this article we rethink the connection between prosecutorial experience and conviction psychology that undergirds much of the academic literature about wrongful convictions. The conviction psychology account of prosecutorial behavior asserts that prosecutorial susceptibility to cognitive biases deepens over time, thereby increasing the risk that prosecutors will become involved in wrongful convictions the longer they stay in the profession.
Our interviews with more than 200 state prosecutors call into question the basis for this asserted correlation between prosecutorial experience and risk of misconduct. The prosecutors we met consistently reported that, all else equal, prosecutors tend to become more balanced, rather than more adversarial, over time. Hence, the prosecutors who present the greatest risk of producing a wrongful conviction are those who are either inexperienced or resistant to the normal maturation process. For this reason, we suggest that wrongful conviction researchers and database designers pay closer attention to the variables associated with prosecutorial experience and resistance that might affect the development of prosecutorial maturity and the consequent risk of wrongful convictions.
Society has long struggled with the meaning of privacy in a modern world. This struggle is not new. With the advent of modern technology and information sharing, however, the challenges have become more complex. Socially, Americans seek to both protect their private lives, and also to utilize technology to connect with the world. Commercially, industries seek to obtain information from individuals, often without their consent, and sell it to the highest bidder. As technology has advanced, the ability of other individuals, institutions, and governments to encroach upon this privacy has strengthened. Nowhere is this tension between individual privacy rights and government security interests felt more acutely than within the context of the Fourth Amendment.
Frank O. Bowman III (University of Missouri School of Law) has posted Vox Populi: Robert McCulloch, Ferguson, and the Roles of Prosecutors and Grand Juries in High-Profile Cases (Missouri Law Review, Vol. 80, 2015) on SSRN. Here is the abstract:
The decisions of St. Louis County Prosecuting Attorney Robert McCulloch during the grand jury investigation of the shooting of Michael Brown by Officer Darren Wilson in Ferguson, Missouri, have been criticized on a variety of grounds. In an article written for a Missouri Law Review syposium on the shooting and its aftermath, and titled "No, You Stand Up": Why Prosecutors Should Stop Hiding Behind Grand Juries," my good friend Professor Ben Trachtenberg takes Mr. McCulloch to task for allowing the grand jury to deliberate without making a recommendation about whether charges should be filed. Professor Trachtenberg asserts that, at the close of the evidentiary presentation to the grand jury, Mr. McCulloch did not believe there to be probable cause and that, accordingly, McCulloch should either not have allowed the grand jury to deliberate at all or should at the least have recommended against indictment due to lack of probable cause. Professor Trachtenberg strongly intimates that Mr. McCulloch behaved unethically, and asserts forthrightly that McCulloch acted out of political self-interest and failed to properly fulfill the functions of his office.
Whatever the merits of other criticisms of Mr. McCulloch, Professor Trachtenberg's particular criticisms seem misconceived. This Article makes the case that, so far as appears from the public record, Mr. McCulloch conducted the Brown-Wilson investigation in compliance with Missouri law, violated no ethical rule, and, at least in his office's relations with the grand jury, proceeded professionally and in a manner calculated to promote the public interest.
Ben Bradford and Jonathan Jackson (University of Oxford - Centre for Criminology and London School of Economics & Political Science - Department of Methodology) have posted Enabling and Constraining Police Power: On the Moral Regulation of Policing on SSRN. Here is the abstract:
In this paper we consider some of the ethical challenges inherent in the regulation of discretionary police power. Discretion is central to police policy and practice, but it also provides a level of freedom that opens up the space for injustice and inequity, and this is seen most vividly in recent debates about unfairness and racial profiling in the distribution and experience of police stops in the US and UK. How to regulate discretionary power is a challenging question, and this is especially so in the context of practices like stop-and-search/stop-and-frisk. The ability to stop people in the street and question them is central to policing as it is understood in many liberal democracies, but under conditions of unfairness and questionable efficacy – when the application of this particular police power appears unethical as well as ineffective – one can reasonably ask whether the power should be dropped or curtailed, and if curtailed, how this would work in practice.
Jonathan Steven Simon and Stephen A. Rosenbaum (University of California, Berkeley, Boalt Hall, School of Law and University of California, Berkeley - School of Law) have posted Dignifying Madness: Rethinking Commitment Law in an Age of Mass Incarceration (University of Miami Law Review, Vol. 70, No. 1, 2015) on SSRN. Here is the abstract:
Modern nation-states have been trapped in recurring cycles of incarcerating and emancipating residents with psychiatric disabilities. New cycles of enthusiasm for incarceration generally commence with well-defined claims about the evils of allowing “the mad” to remain at liberty and the benefits incarceration would bring to the afflicted. A generation or two later, at most, reports of terrible conditions in institutions circulate and new laws follow, setting high burdens for those seeking to imprison and demanding exacting legal procedures with an emphasis on individual civil liberties. Today, we seem to be arriving at another turn in the familiar cycle. A growing movement led by professionals and family members of people with mental health disabilities is calling for new laws enabling earlier and more assertive treatment.
Monday, December 28, 2015
Maximo Langer (University of California, Los Angeles (UCLA) - School of Law) has posted In the Beginning Was Fortescue: On the Intellectual Origins of the Adversarial and Inquisitorial Systems (in Liber Amicorum in Honor of Professor Damaška (Duncker & Humblot, 2016), Forthcoming) on SSRN. Here is the abstract:
The distinctions between adversarial and inquisitorial systems and between common and civil law have been central to comparative criminal procedure. Comparativists and historians have written on the history of these systems. The predominant account is that the inquisitorial system originated in continental Europe around the twelfth and thirteenth centuries when the Catholic Church and individual secular jurisdictions established professional bureaucracies to prosecute and adjudicate crime, authorized the initiation of legal process by public officials, and adopted a system of legal proof and legal torture. As for the adversarial system, the predominant account states that it originated in the eighteenth century when English law and judges gradually authorized the participation of professional defense attorneys in felony trials, which gradually led to the adoption of common law rules of evidence and to the redefinition of the role of judges as passive umpires, among other changes.
I want to write a different history of these categories: an intellectual history or genealogy about how the adversarial and inquisitorial systems and common and civil law became central categories of comparative criminal procedure.
For the last several years, the Commonwealth of Pennsylvania has quietly attempted to curtail capital defendants’ representation in state postconviction proceedings. In 2011, various justices on the Pennsylvania Supreme Court began to call for federally funded community defender organizations to stop representing capital defendants in state postconviction proceedings. The justices argued, among other things, that the organizations’ representation of capital defendants constituted impermissible federal interference with state governmental processes and burdened state judicial resources. The court also alleged the community defender organizations were in violation of federal statutes, which only authorized the organizations to assist state prisoners in federal, but not state, court. It did not take long for the Philadelphia District Attorney’s Office to pick up on these signals. The Pennsylvania Supreme Court, sometimes on its own motion and sometimes at the invitation of the District Attorney’s Office, issued orders disqualifying federal community defender organizations from representing prisoners in individual state postconviction proceedings. This Essay addresses whether federal courts have the power to hear the Commonwealth’s claims that the defender organizations should be disqualified from individual postconviction proceedings because their participation in those proceedings violates a federal statute.
Neil L. Sobol (Texas A&M University - School of Law) has posted Charging the Poor: Criminal Justice Debt & Modern-Day Debtors' Prisons (Maryland Law Review, Vol. 75, 2016, Forthcoming) on SSRN. Here is the abstract:
Debtors’ prisons should no longer exist. While imprisonment for debt was common in colonial times in the United States, subsequent constitutional provisions, legislation, and court rulings all called for the abolition of incarcerating individuals to collect debt. Despite these prohibitions, individuals who are unable to pay debts are now regularly incarcerated, and the vast majority of them are indigent. In 2015, at least ten lawsuits were filed against municipalities for incarcerating individuals in modern-day debtors’ prisons.
Criminal justice debt is the primary source for this imprisonment. Criminal justice debt includes fines, restitution charges, court costs, and fees. Monetary charges exist at all stages of the criminal justice system from pre-conviction to parole. They include a wide variety of items, such as fees for electronic monitoring, probation, and room and board. Forty-three states even charge fees for an indigent’s “free” public defender. With expanding incarceration rates and contracting state budgets, monetary sanctions have continued to escalate. Additionally, many states and localities are now outsourcing prison, probation, monitoring, and collection services to private companies, who add additional fees and charges to the criminal justice debt burden of defendants.
Stephen Morse (University of Pennsylvania Law School) has posted Addiction, Choice and Criminal Law (In ADDICTION AND CHOICE, ed. Nick Heather and Gabriel Segal, Oxford U.P. (Forthcoming)) on SSRN. Here is the abstract:
This chapter is a contribution to a volume, Addiction and Choice, edited by Nick Heather and Gabriel Segal that is forthcoming from Oxford University Press. Some claim that addiction is a chronic and relapsing brain disease; others claim that it is a product of choice; yet others think that addictions have both disease and choice aspects. Which of these views holds sway in a particular domain enormously influences how that domain treats addictions. With limited exceptions, Anglo-American criminal law has implicitly adopted the choice model and a corresponding approach to responsibility. Addiction is irrelevant to the criteria for the prima facie case of crime, it is not an excusing or mitigating condition per se, and it does not contribute relevant evidence to existing excusing conditions, such as legal insanity. This chapter evaluates the criminal law’s model of responsibility using scientific and clinical evidence and dominant criminal law theories. It concludes that although the law’s approach is generally justifiable, current doctrine and practice are probably too unforgiving and harsh. Recommendations for reform conclude the chapter.
Kyndra C. Cleveland , Jodi Quas and Thomas D. Lyon (University of California, Irvine , University of California, Irvine - Department of Criminology, Law and Society and University of Southern California - Gould School of Law) have posted Valence, Implicated Actor, and Children's Acquiescence to False Suggestions (Forthcoming, Journal of Applied Developmental Psychology) on SSRN. Here is the abstract:
Although adverse effects of suggestive interviewing on children's accuracy are well documented, it remains unclear as to whether these effects vary depending on the valence of and the actor implicated in suggestions. In this study, 124 3-8-year-olds participated in a classroom activity and were later questioned about positive and negative false details. The interviewer provided positive reinforcement when children acquiesced to suggestions and negative feedback when they did not. Following reinforcement or feedback, young children were comparably suggestible for positive and negative details. With age, resistance to suggestions about negative details emerged first, followed by resistance to suggestions about positive details. Across age, more negative feedback was required to induce acquiescence to negative than positive false details. Finally, children were less willing to acquiesce when they (versus the confederate) were implicated. Findings highlight the interactive effects of valence and children's age on their eyewitness performance in suggestive contexts.
Sunday, December 27, 2015
The law allows willful ignorance to substitute for knowledge on the theory that these two mental states are equally culpable. This Article argues that, as a result, the law is also committed to allowing some forms of egregious non-willful ignorance — most importantly, reckless ignorance — to substitute for knowledge when the conditions of equal culpability are met. In addition to developing this theoretical argument, the Article argues that some courts already allow reckless ignorance to substitute for knowledge — namely, in cases governed by the collective knowledge doctrine. Allowing reckless ignorance to substitute for knowledge is thus not unprecedented. What’s more, moving beyond the traditional willful ignorance doctrine is especially important in order to combat the incentives that lawyers, accountants and other white-collar professionals have to remain in ignorance of fraud committed by their clients. While the existing willful ignorance doctrine adequately responds to conscious efforts to remain in ignorance of fraud in one’s midst, the criminal law does not have sufficient doctrinal tools to counteract the incentives to recklessly allow one’s ignorance to be preserved. This is the gap the Iterated Reckless Ignorance Principle defended here aims to fill.
Saturday, December 26, 2015
Michael Plaxton (University of Saskatchewan - College of Law) has posted Implied Consent & Sexual Assault: Introduction (McGill-Queen's University Press, 2015) (Forthcoming)) on SSRN. Here is the abstract:
Friday, December 25, 2015
Lilian Edwards and Lachlan Urquhart (University of Strathclyde Law School and University of Nottingham, School of Computer Science) have posted Privacy in Public Spaces: What Expectations of Privacy Do We Have in Social Media Intelligence? on SSRN. Here is the abstract:
In this paper we give a basic introduction to the transition in contemporary surveillance from top down traditional police surveillance to profiling and “pre-crime” methods. We then review in more detail the rise of open source (OSINT) and social media (SOCMINT) intelligence and its use by law enforcement and security authorities. Following this we consider what if any privacy protection is currently given in UK law to SOCMINT. Given the largely negative response to the above question, we analyse what reasonable expectations of privacy there may be for users of public social media, with reference to existing case law on art 8 of the ECHR. Two factors are in particular argued to be supportive of a reasonable expectation of privacy in open public social media communications: first, the failure of many social network users to perceive the environment where they communicate as “public”; and secondly, the impact of search engines (and other automated analytics) on traditional conceptions of structured dossiers as most problematic for state surveillance. Lastly, we conclude that existing law does not provide adequate protection for open SOCMINT and that this will be increasingly significant as more and more personal data is disclosed and collected in public without well-defined expectations of privacy.
Thursday, December 24, 2015
Brian M. Murray (Temple University, Beasley School of Law) has posted Prosecutorial Responsibility and Collateral Consequences (Stanford Journal of Civil Rights and Civil Liberties, Forthcoming) on SSRN. Here is the abstract:
Plea-bargaining has been the norm in criminal adjudication for over a century. Prosecutors, once the architects of trials, now design the negotiation process with a particular eye towards sentencing. Such sentences visibly include direct consequences, but perhaps more significantly, collateral consequences that result automatically from conviction and that hamper reentry by ex-offenders. These penalties, often invisible at the time of plea negotiations, are punishment-like in effect and have penalogical justifications that resemble traditional methods of punishment. While the Supreme Court has required disclosure and notice of consequences by defense counsel in recent years, the time is right to contemplate imposing disclosure obligations on prosecutors as well. The values underlying prosecutorial disclosure of exculpatory evidence translate to the plea bargaining context with respect to information regarding sentencing. Those values, the Court’s recent jurisprudence of “notice,” and the need to heighten systemic literacy regarding collateral consequences, support imposing a requirement that prosecutors disclose serious, automatic collateral consequences because prosecutors enforce those consequences when they construct plea deals.
Wednesday, December 23, 2015
Craig A. Stern (Regent University School of Law) has posted Mens Rea and Mental Disorder (The Insanity Defense: Multidisciplinary Views on Its History, Trends, and Controversies. Mark D. White, Editor. Forthcoming) on SSRN. Here is the abstract:
This chapter, to be included in a volume on the insanity defense, suggests that the law on mens rea entails law on the relevance of the criminal defendant’s mental disorder. The whole range of questions on the relevance of the defendant’s mental health should find answers flowing from how the law resolves questions on mens rea. For example, whether there should exist an insanity defense, and of what type, depends at least in part upon how the law treats mens rea. How the law treats mens rea, in turn, depends upon the purpose the law pursues in its doctrine of mens rea, and this purpose depends upon the purpose the law pursues in the criminal law itself.
Simon A. Cole and Andrew J. Roberts (University of California, Irvine - Department of Criminology, Law and Society and Melbourne Law School) have posted Certainty, Indvidualisation and the Subjective Nature of Expert Fingerprint Evidence on SSRN. Here is the abstract:
This article provides a critical evaluation of the findings of the Fingerprint Inquiry Report and considers the implications of those findings for practice and the presentation of fingerprint evidence in criminal trials.