CrimProf Blog

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

Thursday, June 22, 2017

Opinion holding withheld information not material under Brady

Justice Breyer delivered the opinion of the Court in Turner v. United States. Justice Kagan filed a dissenting opinion in which Justice Ginsburg joined. Justice Gorsuch did not participate.

June 22, 2017 | Permalink | Comments (0)

Wednesday, June 21, 2017

Keene on Reasonable Suspicion and Racial Bias

Keene sheri leeSherri Lee Keene (University of Maryland Francis King Carey School of Law) has posted Stories that Swim Upstream: Uncovering the Influence of Stereotypes and Stock Stories in Fourth Amendment Reasonable Suspicion Analysis (Maryland Law Review, Forthcoming) on SSRN. Here is the abstract:

This Essay challenges courts to acknowledge and address racial bias in the courtroom at a fundamental level. It discusses the limitations of judicial review of police stops, which fail to appreciate the potential impact of implicit racial bias on a police officer’s assessment of a citizen’s behavior. Specifically, it focuses on the Supreme Court’s Fourth Amendment reasonable suspicion analysis and explains how the potential for biased decision making is worsened in a legal system where race is deemed legally irrelevant, and as a result not meaningfully considered. Moreover, this Essay discusses the specific challenge of cognitive shortcuts that can mask implicit racial bias, limiting a court’s ability to recognize its potential influence and thus engage in a robust review of police officers’ actions.

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June 21, 2017 | Permalink | Comments (0)

Sukumar et al. on Police Disclosure of Evidence

Divya Sukumar, Jacqueline Hodgson and Kimberley Wade (University of Warwick, University of Warwick - School of Law and University of Warwick) have posted two pieces on SSRN. The first is Strategic Disclosure of Evidence: Perspectives from Psychology and Law (Psychology, Public Policy, and Law, Volume 22, Issue 3, Aug. 2016). Here is the abstract:

The police frequently present their evidence to suspects in investigative interviews. Accordingly, psychologists have developed strategic ways in which the police may present evidence to catch suspects lying or to elicit more information from suspects. While research in psychology continues to illustrate the effectiveness of strategic evidence disclosure tactics in lie detection, lawyers and legal research challenge these very tactics as undermining fair trial defense rights. Legal research is alive to the problems associated with strategically disclosing evidence to a suspect, such as preventing lawyers from advising the suspect effectively, increasing custodial pressure for the suspect, and worsening working relations between lawyers and police. This paper brings together the opposing research and arguments from the two disciplines of psychology and law, and suggests a new way forward for future research and policy on how the police should disclose evidence.

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June 21, 2017 | Permalink | Comments (0)

Altholz on Killings by U.S. Border Agents

Altholz_roxanna_210x270Roxanna Altholz (University of California, Berkeley, School of Law) has posted Elusive Justice: Legal Redress for Killings by U.S. Border Agents (Berkeley La Raza Law Journal, Vol. 27, No. 1, 2017) on SSRN. Here is the abstract:

Since the 1990s, U.S. Customs and Border Protection (CBP) agents have killed approximately fifty Mexican and U.S. nationals along the U.S.-Mexico border. Many of the victims, including several teenagers, were unarmed and shot in the back. The vast majority of CBP agents have faced no criminal, civil, or disciplinary action for their conduct. This Article identifies U.S. legal doctrines, defenses, and procedures that make justice elusive for the relatives of victims. The Article argues that there is mounting legal and political pressure to hold CBP agents accountable for violence at the border and suggests that reformists look to international standards to help guide efforts to address systemic barriers to redress.

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June 21, 2017 | Permalink | Comments (0)

Tuesday, June 20, 2017

Hodgson & Soubise on Prosecution in France

Jacqueline Hodgson and Laurène Soubise (University of Warwick - School of Law and University of Warwick) have posted Prosecution in France on SSRN. Here is the abstract:

This essay examines the increasingly ambivalent role and status of the French prosecutor, the procureur. As a judicial officer (magistrat), she is required to act in and to uphold the public interest, but her hierarchical accountability to the executive and her role in the formation and implementation of local criminal justice policy threaten her independence, notably in the eyes of her fellow magistrats. The dominance of the executive, both politically and through the imposition of managerialist imperatives, is felt in the ever-expanding role of the procureur, especially in the local sphere. Whilst the limited forms of legal and structural accountability in place leave the prosecutor with broad discretion, this is diminished through the drive to standardization resulting from the delegation of work to fulfill the demands of dealing with greater numbers of cases more quickly, with fewer resources.

June 20, 2017 | Permalink | Comments (0)

Yadin on Virtual Reality Intrusion

Gilad Yadin (University of Haifa, Faculty of Law) has posted Virtual Reality Intrusion (Willamette Law Review, Vol. 53, No. 1, 2016) on SSRN. Here is the abstract:

This article ventures into the unchartered waters of virtual reality criminal law, presenting both a novel multidisciplinary insight into a technological medium that many believe will shape future human society and an unexpected challenge to an inherently flawed cyber intrusion legal doctrine.

Thirty years ago, lawmakers in countries all over the world enacted new and specialized computer misuse legislation, acting on the notion that existing criminal law is insufficient to the task of prosecuting and resolving computer intrusion cases. Unfortunately, the resulting unauthorized access regime has created significant problems. One is the potential criminalization of everyday technological behavior, brought about by an overly extensive normative scope; another is chronic under-enforcement; and yet another is a wider chilling effect on creativity and digital freedoms.

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June 20, 2017 | Permalink | Comments (0)

Eisenberg et al. on Exclusion of Women and African-Americans from Capital Juries

Ann M. Eisenberg, Amelia Courtney Hritz, Caisa E. Royer and John H. Blume III (University of South Carolina - School of Law, Cornell University, College of Human Ecology, Law, Psychology and Human Development Program, Students, Cornell University, College of Human Ecology, Law, Psychology and Human Development Program, Students and Cornell Law School) have posted If It Walks Like Systematic Exclusion and Quacks Like Systematic Exclusion: Follow-Up on Removal of Women and African-Americans in Jury Selection in South Carolina Capital Cases, 1997-2014 (68 South Carolina Law Review 373, 2017) on SSRN. Here is the abstract:

This Article builds on an earlier study analyzing bases and rates of removal of women and African-American jurors in a set of South Carolina capital cases decided between 1997 and 2012. We examine and assess additional data from new perspectives in order to establish a more robust, statistically strengthened response to the original research question: whether, and if so, why, prospective women and African-American jurors were disproportionately removed in different stages of jury selection in a set of South Carolina capital cases.

The study and the article it builds on add to decades of empirical research exploring the impacts (or lack thereof) of Batson and related jurisprudence on jury selection practices.

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June 20, 2017 | Permalink | Comments (0)

Hodgson on Preventing Detention

Jacqueline Hodgson (University of Warwick - School of Law) has posted Legitimating Preventive Detention: A Comment on 'Exceptional Laws in Europe with Emphasis on 'Enemies'' (in Caianiello, M. and Corrado, M. (eds) Preventing Danger: New Paradigms in Criminal Justice (Durham, North Carolina: Carolina Academic Press) 60-62) on SSRN. Here is the abstract:

Germany operates a “double track” system of punishment and preventive detention. Traditionally, this system included fixed-term prison sentences, which were limited by the safeguards of legality, proportionality, double jeopardy, etc., followed by preventative detention of indefinite length, which was not limited by those safeguards. In 2010, the European Court of Human Rights determined that the preventive period had to count as punitive and, thus, should be subject to the safeguards that surround punishment. This decision affects many other European countries that share a version of the “double track” system. While Europe is retreating under the tutelage of the ECHR on this matter, the United States has been developing its own system of preventive detention, both within the criminal law (for sexual predators) and without (for suspected terrorists). The essays in this volume bring together the best of European and American comparative writing on these issues.

June 20, 2017 | Permalink | Comments (0)

Monday, June 19, 2017

Simonson on Contesting and Resisting Criminal Justsice

Simonson jocelynJocelyn Simonson (Brooklyn Law School) has posted Democratizing Criminal Justice Through Contestation and Resistance (Northwestern University Law Review, Vol. 111, 2017) on SSRN. Here is the abstract:

Collective forms of participation in criminal justice from members of marginalized groups – for example, when people gather together to engage in participatory defense, organized copwatching, or prison labor strikes – have a profound effect on everyday criminal justice. In this Essay I argue that these bottom-up forms of participation are not only powerful and important, but also crucial for democratic criminal justice. Collective mechanisms of resistance and contestation build agency, remedy power imbalances, bring aggregate structural harms into view, and shift deeply entrenched legal and constitutional meanings. Many of these forms of contestation display a faith in local democracy as a tool of responsive criminal justice, while simultaneously maintaining a healthy skepticism of the law and existing legal institutions that maintain the status quo. These forms of resistance and contestation are not antagonistic, but agonistic; not revolutionary, but devolutionary.

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June 19, 2017 | Permalink | Comments (0)

Hylton on Rational Incentives and Criminal Justice Reform

Hylton keithKeith N. Hylton (Boston University - School of Law) has posted Whom Should We Punish, and How? Rational Incentives and Criminal Justice Reform (Wythe Lecture, William & Mary Law School, 2017) on SSRN. Here is the abstract:

This essay sets out a comprehensive account of rational punishment theory and examines its implications for criminal law reform. Specifically, what offenses should be subjected to criminal punishment, and how should we punish? Should we use prison sentences or fines, and where should we use them? Should some conduct be left to a form of market punishment through private lawsuits? Should fines be used to fund the criminal justice system? The answers I offer address some of the most important public policy issues of the moment, such as mass incarceration and the use of fines to finance law enforcement. The framework of this paper is firmly grounded in rational deterrence policy, and yet points toward reforms that would soften or reduce the scope of criminal punishment.

June 19, 2017 | Permalink | Comments (0)

Flynn et al. on Counsel Rights

Asher Flynn, Jacqueline Hodgson, Jude McCulloch and Bronwyn Naylor (Monash University, University of Warwick - School of Law, Monash University and RMIT University - Graduate School of Business and Law) have posted Legal Aid and Access to Legal Representation: Redefining the Right to a Fair Trial on SSRN. Here is the abstract:

The unmet demand for legal aid generally and for criminal law matters in particular, has grown in tandem with the expansion of crime control and increased restrictions on funding for publicly funded welfare and support services. This article examines the connection between legal aid, legal representation and the right to a fair trial. It presents an in-depth case study of Victorian case law and policy development to illuminate dilemmas in the prioritised allocation of legal aid resources in serious criminal trials. It then compares the Victorian courts' approach to a fair trial with the tenets of current European Court of Human Rights jurisprudence regarding the scope and timing of an accused person's right to access a lawyer. The comparison underlines the narrow definition of fair trial under Victorian common law, relative to Europe, where a fair trial is interpreted more broadly to include the right to legal representation during police and pre-trial investigations. The article questions whether international developments in access to legal aid for criminal trials and the extension of legal aid and representation to pre-trial procedures, most notably through the Salduz case (heard in the European Court of Human Rights), may inspire change in Victoria.

June 19, 2017 | Permalink | Comments (0)

Opinion limiting Bivens actions for post-9/11 detentions

Justice Kennedy delivered the opinion of the Court in part in Ziglar v. Abbasi. Other parts of the opinion were joined by the Chief Justice and Justice Alito. Justice Thomas concurred in part and concurred in the judgment. Justice Breyer filed a dissenting opinion, in which Justice Ginsburg joined. Justices Sotomayor, Kagan, and Gorsuch did not participate.

June 19, 2017 | Permalink | Comments (0)

Opinion concluding that procedurally defaulted claim improperly reviewed under miscarriage-of-justice exception

The per curiam opinion was issued in Jenkins v. Hutton.

June 19, 2017 | Permalink | Comments (0)

Opinion rejecting social media ban on registered sex offender

Justice Kennedy delivered the opinion of the Court in Packingham v. North Carolina. Justice Alito, joined by the Chief Justice and Justice Thomas, concurred in the judgment. Justice Gorsuch did not participate.

June 19, 2017 | Permalink | Comments (0)

Opinion concluding capital defendant denied expert mental health assistance

Justice Breyer delivered the opinion of the Court in McWilliams v. Dunn. Justice Alito filed a dissenting opinion in which the Chief Justice and Justices Thomas and Gorsuch joined.

June 19, 2017 | Permalink | Comments (0)

Sunday, June 18, 2017

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 997 Surveying the Law of Emojis
Eric Goldman
Santa Clara University - School of Law
Date posted to database: 1 May 2017 
2 438 Judging Sexual Assault Trials: Systemic Failure in the Case of Regina v Bassam Al-Rawi
Elaine Craig
Dalhousie University - Schulich School of Law
Date posted to database: 12 Apr 2017
3 167 Affirmative Consent, by Way of the Intoxication 'Defense'
Kevin Cole
University of San Diego School of Law
Date posted to database: 18 May 2017 
4 164 Designed to Fail: The President's Deference to the Department of Justice in Advancing Criminal Justice Reform
Rachel E. Barkow and Mark William Osler
New York University School of Law and University of St. Thomas - School of Law (Minnesota)
Date posted to database: 2 May 2017 
5 153 Dynamic Rationality
Stephanie Plamondon Bair
Brigham Young University J. Reuben Clark Law School
Date posted to database: 27 May 2017 [6th last week]
6 151 Judicial Resolution of Nonconsensual Pornography Dissemination Cases
Eric Goldman and Angie Jin
Santa Clara University - School of Law and Cornell University - Law School
Date posted to database: 17 Apr 2017 [5th last week]
7 112 The Problem with Inference for Juvenile Defendants
Jenny E. Carroll
University of Alabama - School of Law
Date posted to database: 21 Apr 2017 [9th last week]
8 110 Is There a Case for Strict Liability?
Larry Alexander
University of San Diego School of Law
Date posted to database: 28 Apr 2017 
9 83 Kinds of Punishment
Douglas Husak
Rutgers, The State University of New Jersey - Department of Philosophy
Date posted to database: 3 Jun 2017 [new to top ten]
10 77 Proportional Mens Rea and the Future of Criminal Code Reform
Michael Serota
Independent
Date posted to database: 15 May 2017 

June 18, 2017 | Permalink | Comments (0)

Saturday, June 17, 2017

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 227 The Use of Risk Assessment at Sentencing: Implications for Research and Policy
Jordan M. Hyatt and Steven L. Chanenson
Drexel University and Villanova University School of Law
Date posted to database: 2 May 2017 
2 187 Government Hacking to Light the Dark Web: What Risks to International Relations and International Law?
Orin S. Kerr and Sean D. Murphy
The George Washington University Law School and George Washington University - Law School
Date posted to database: 24 Apr 2017 [3rd last week]
3 164 Designed to Fail: The President's Deference to the Department of Justice in Advancing Criminal Justice Reform
Rachel E. Barkow and Mark William Osler
New York University School of Law and University of St. Thomas - School of Law (Minnesota)
Date posted to database: 2 May 2017 [4th last week]
4 128 What Happened to the American Jury? Proposals for Revamping Plea Bargaining and Summary Judgment
Suja A. Thomas
University of Illinois College of Law
Date posted to database: 30 May 2017 [6th last week]
5 114 Rethinking Federal Diversion: The Rise of Specialized Criminal Courts
Christine S. Scott-Hayward
California State University, Long Beach - School of Criminology, Criminal Justice, and Emergency Management
Date posted to database: 28 Apr 2017 [7th last week]
6 112 The Problem with Inference for Juvenile Defendants
Jenny E. Carroll
University of Alabama - School of Law
Date posted to database: 21 Apr 2017 [9th last week]
7 84 ‘What Do I Do with the Porn on My Computer?’: How a Lawyer Should Counsel Clients about Physical Evidence
Peter A. Joy and Rodney J. Uphoff
Washington University in St. Louis - School of Law and University of Missouri School of Law
Date posted to database: 19 May 2017 [new to top ten]
8 77 Measuring the Creative Plea Bargain
Thea Johnson
University of Maine School of Law
Date posted to database: 30 May 2017 [new to top ten]
9 76 A Contextual Approach to Harmless Error Review
Justin Murray
Independent
Date posted to database: 11 May 2017 [new to top ten]
10 75 Actual Innocence and Wrongful Convictions
Brandon L. Garrett
University of Virginia School of Law
Date posted to database: 28 Apr 2017 [new to top ten]

June 17, 2017 | Permalink | Comments (0)

Friday, June 16, 2017

Allen on Probability as a Tool in Plausible Reasoning

Allen ronaldRonald J. Allen (Northwestern University Law School) has posted The Nature of Juridical Proof: Probability as a Tool in Plausible Reasoning (Forthcoming 21 Int. J. Evidence & Proof 133 (2017)) on SSRN. Here is the abstract:

The different contexts of forensic science and juridical decision making are explored to identify the nature of juridical proof, the role of formalized probability theory in it, and how factual inquiry proceeds in the differing domains.

June 16, 2017 | Permalink | Comments (0)

McConkie on Criminal Discovery

Mcconkie danielDaniel S. McConkie Jr. (Northern Illinois University - College of Law) has posted The Local Rules Revolution in Criminal Discovery (Cardozo Law Review, Forthcoming) on SSRN. Here is the abstract:

Over the last few decades, federal district court judges throughout the country have used local rules to greatly expand pretrial criminal disclosure obligations, especially for prosecutors. These local criminal discovery rules both incentivize prosecutors to act as ministers of justice and empower judges to manage prosecutorial disclosures. This quiet revolution is now well underway, and the time has come to amend the Federal Rules of Criminal Procedure to bring these innovations to all the districts.

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June 16, 2017 | Permalink | Comments (0)

Simon-Kerr on Police Deception

Simon-Kerr juliaJulia Ann Simon-Kerr (University of Connecticut School of Law) has posted Public Trust and Police Deception on SSRN. Here is the abstract:

At a time when truth is being contested in unprecedented ways in American history, it is more important than ever to expand our analytical toolset for assessing the costs, benefits and moral implications of routine deception by those who hold positions of public trust. This paper takes up this project through the lens of deceptive interrogation by police. Deceptive interrogation is an anomaly in our legal system, which is otherwise facially committed to truth seeking. The main argument in favor of deceptive interrogation has been that it is effective, and most scholarship about this practice has focused on efficacy. Whether lies are in fact effective in interrogating suspects remains unproven. But deceptive interrogation also has important externalities that are rarely discussed. This Article explores the costs of deceptive interrogation to public trust and to the moral legitimacy of the legal system. It makes the case that even if deceptive interrogation can be effective, it is still deeply problematic and even destructive. Some sacrifice in utility is worth making for the sake of a society in which police model the respect for truth upon which the system of justice depends.

June 16, 2017 | Permalink | Comments (0)