CrimProf Blog

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

Friday, October 13, 2017

"Many law enforcement agencies don’t follow state lineup, interrogation rules, study says"

From The Columbus Dispatch, via the NACDL news scan:

The law, passed in 2010, requires law enforcement agencies to use “blind” suspect lineups in which the investigator or officer administering the lineup either isn’t involved in the case or doesn’t know the identity of the suspect. Law enforcement can also use a photo lineup technique in which only the witness can see the pictures to ensure they aren’t biased. It also recommends, but doesn’t require, recording interrogations.

. . .

“Very few departments are complying with the full letter of the law, and that’s very disappointing,” said Mark Godsey, director of the Ohio Innocence Project. “We need to do better in Ohio.”

 

October 13, 2017 | Permalink | Comments (0)

Tsesis on Social Media Accountability for Terrorist Propaganda

Tsesis alexanderAlexander Tsesis (Loyola University Chicago School of Law) has posted Social Media Accountability for Terrorist Propaganda (Fordham Law Review, Vol. 86, 2017) on SSRN. Here is the abstract:
 
Terrorist organizations have found social media websites to be invaluable for disseminating ideology, recruiting terrorists, and planning operations. National and international leaders have repeatedly pointed out the dangers terrorists pose to ordinary people and state institutions. In the United States, the federal Communications Decency Act’s Section 230 provides social networking websites with immunity against civil law suits. Litigants have therefore been unsuccessful in obtaining redress against internet companies who host or disseminate third-party terrorist content. This Article demonstrates that Section 230 does not bar private parties from recovery if they can prove that a social media company had received about specific webpages, videos, posts, articles, IP addresses, or accounts of foreign terrorist organizations; the company’s failure to remove the material; a terrorist’s subsequent viewing of or interacting with the material on the website; and that terrorist’s acting upon the propaganda to harm the plaintiff.

This Article argues that irrespective of civil immunity, the First Amendment does not limit Congress’s authority to impose criminal liability on those content intermediaries who have been notified that their websites are hosting third-party foreign terrorist incitement, recruitment, or instruction.

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October 13, 2017 | Permalink | Comments (0)

Silver on Credibility Assessment

Lisa A Silver (University of Calgary, Faculty of Law) has posted The WD Revolution on SSRN. Here is the abstract:
 
The W(D) decision matters. As a paradigm of the core principles of fundamental justice, W(D) has empowered the credibility assessment and given it meaning. From its release in 1991, the essence of the decision, invoked by the case initials, reverberated through the appellate and trial courts and changed the legal landscape. From its modest beginnings as an admonishment to beware of the impermissible “credibility contest,” W(D) radically transformed the everyday to the infra-ordinary by imbedding the presumption of innocence and the inextricably connected reasonable doubt standard into the decision-making analysis. But the revolutionary path has not been easy as the courts struggle with the tension between the “ideal” and the “real.” Yet, W(D) has survived this ordeal to become an essential trial concept. How W(D) has made this not-so “magical” transition is discussed in this paper as we trace the impact of the decision through statistics, case law, the judicial lens and the personal perspective. At the end of this examination, we will see W(D) anew; not as a worn-out overplayed “mantra” but as an invigorating principle representing the plurality of what is at stake in a criminal trial. To apply W(D) is to know it. This paper attempts that very task.

October 13, 2017 | Permalink | Comments (0)

Heise et al. on State Criminal Appeals

Michael HeiseNancy J. King and Nicole A. Heise (Cornell Law School, Vanderbilt University - Law School and University of Chicago, Law School, Students) have posted State Criminal Appeals Revealed on SSRN. Here is the abstract:
 
Every state provides appellate review of criminal judgments, yet little research examines which factors correlate with favorable outcomes for defendants who seek appellate relief. To address this scholarly gap, this paper exploits the Survey of Criminal Appeals in State Courts (2010) dataset, recently released by the Bureau of Justice Statistics and the National Center for State Courts (hereinafter, “NCSC Study”). The NCSC Study is the first and only publicly available national dataset on state criminal appeals and includes unprecedented information from every state court in the nation with jurisdiction to review criminal judgments. We focus on two subpools of state criminal appeals: a defendant’s first appeal of right, and defense appeals to courts of last resort with the discretion to grant or deny review. Error correction, of course, is paramount in the first context, for typically an appeal of right is a defendant’s only chance at review. By contrast, courts of last resort with discretionary jurisdiction emphasize law development, selecting cases to clarify or alter legal rules, resolve conflicts, and remedy the most egregious mistakes. Our findings imply that defense appellate success rates may have declined in recent decades.

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October 13, 2017 | Permalink | Comments (0)

Buchhandler-Raphael on Fear-Based Provocation

Michal Buchhandler-Raphael (Washington and Lee University School of Law) has posted Fear-Based Provocation on SSRN. Here is the abstract:
 
Psychological research has long found that anger may lead to aggression, sometimes even fatal one. The provocation doctrine corresponds to this finding by providing that murder charges may be mitigated to voluntary manslaughter if evidence establishes that the defendant acted under the influence of a “sudden heat of passion”, resulting from “adequate provocation”. The modern rationale underlying provocation doctrine rests on the idea that defendant’s intense emotion of anger had resulted in loss of self-control, therefore he or she ought to be partially excused.

Case law demonstrates that defendants sometimes kill out of fear of serious physical violence threatened by the deceased.

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October 13, 2017 | Permalink | Comments (0)

Anderson on Context and Tendency Evidence in Sexual Assault Cases

John L Anderson (University of Newcastle (Australia) - Newcastle Law School) has posted The Fraught Dichotomy between Context and Tendency Evidence in Sexual Assault Cases - Suggestions for Reform (New Directions for Law in Australia: Essays in Contemporary Law Reform, Ron Levy, Simon Rice, Molly O'Brien, Pauline Ridge and Margaret Thornton (eds) (2017)) on SSRN. Here is the abstract:
 
In this chapter, it will first be argued that the admissibility of relationship/context evidence under the uniform Evidence Acts should be specifically governed by a statutory provision similar to section 34P Evidence Act 1929 (SA), which presumptively makes all evidence of ‘discreditable conduct’ inadmissible and sets a rigorous threshold for the prosecution to persuade the trial judge that the evidence is admissible. This will require a transparent judicial balancing process rather than simply relying on the outmoded notion that directions to the jury will ameliorate the unfair prejudice to the defendant. Second, it will be contended that increased use of expert evidence to explain so-called 'counter-intuitive' behaviours of sexual assault victims, particularly children, is an option in certain cases that will be a more objective way of maintaining the credibility of victims without the need for a detailed and highly prejudicial account of ‘misconduct’ and events leading to the charged offence.

October 13, 2017 | Permalink | Comments (0)

Quaid on Negotiated Justice and Economic Crime

Jennifer A. Quaid (University of Ottawa - Civil Law Section) has posted Negotiated Justice and Economic Crime: Lessons from the Canadian Experience (Stefano Manacorda & Francesco Centonze, eds, Centro nazionale di prevenzione e difesa sociale - Collana Convegni di studio "Enrico de Nicola - Problemi attuali di diritto e procedura penale”, Criminalità d’impresa e giustizia negoziata: esperienze a confronto, Milano: Giuffrè, 2017 (Forthcoming)) on SSRN. Here is the abstract:
 
In this paper, I provide a Canadian perspective on the role of negotiated justice in the arsenal of enforcement responses to economic crime. I begin by delineating the legal framework within which enforcement against economic crime occurs in Canada by considering the ambit of the terms of “economic crime” and “negotiated justice” in relation to the structure of the criminal law in Canada and the role of prosecutors in the administration of criminal justice. From here, I explore how the application of negotiated justice to economic crime brings out issues that differ from those that characterize the conventional criminal justice negotiation paradigm in Canada. Finally, I turn my attention to a special framework developed to structure the negotiation and settlement of a particular class of economic crimes: the Immunity and Leniency Programs applicable to serious competition offences, in order to consider whether this framework could serve as a template for criminal justice negotiations in relation to other forms of economic crime.

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October 13, 2017 | Permalink | Comments (0)

Sheehy on Coercive Control and Self Defense

Elizabeth A. Sheehy (University of Ottawa - Common Law Section) has posted Expert Evidence on Coercive Control in Support of Self-Defence: The Trial of Teresa Craig (Criminology & Criminal Justice, First Published Date: September 20, 2017) on SSRN. Here is the abstract:
 
This article uses the transcripts from an abused woman’s trial in Canada for first-degree murder of her husband to explore the expert testimony provided by Dr. Evan Stark to support a potential defence of self-defence. His evidence focused on coercive control theory and provoked extreme resistance from Crown prosecutors, such that self-defence was ultimately removed from the jury’s consideration. The trial illustrates the advantages and challenges of using coercive control theory as well as its future potential.

October 13, 2017 | Permalink | Comments (0)

Thursday, October 12, 2017

"Opposition mounts against bill to renew surveillance program"

From The Hill, via NACDL news scan:

A carefully crafted compromise proposal to reform the NSA’s warrantless surveillance program is in trouble, with opposition coming from libertarian-leaning conservatives and members of the House Intelligence Committee.

 The House Freedom Caucus appears dissatisfied with the National Security Agency reform measure, which was drafted by a bipartisan group of Judiciary Committee lawmakers led by chairman Bob Goodlatte (R-Va.).

October 12, 2017 | Permalink | Comments (0)

"India Supreme Court rules sex with minor bride is rape"

From Jurist:

The Supreme Court of India [official website] ruled [judgment, PDF] Wednesday that sexual intercourse with a girl who is under the age of 18 is rape regardless of the marital status of the girl.

Section 375 of the India Penal Code specifies that intercourse with someone under the age of 18 is considered rape. However, Exception 2 to section states that a husband can have intercourse with a girl between the ages of 15 and 18 if he is married to the girl, whether intercourse is consensual or not.

October 12, 2017 | Permalink | Comments (1)

Solan & Gales on Corpus Linguistics

Lawrence M. Solan and Tammy A Gales (Brooklyn Law School and Hofstra University) have posted Corpus Linguistics as a Tool in Legal Interpretation (Brigham Young University Law Review, 2018 Forthcoming) on SSRN. Here is the abstract:
 
In this paper, we set out to explore conditions in which the use of large linguistic corpora can be optimally employed by judges and others tasked with construing authoritative legal documents. Linguistic corpora, sometimes containing billions of words, are a source of information about the distribution of language usage. Thus, corpora and the tools for using them are most likely to assist in addressing legal issues when the law considers the distribution of language usage to be legally relevant. As Thomas Lee and Stephen Mouritsen have so ably demonstrated in earlier work, corpus analysis is especially helpful when the legal standard for construction is the ordinary meaning of the document’s terms. We argue here that four issues should be addressed before determining that corpus analysis is likely to be maximally convincing. First, the legal issue before the court must be about the distribution of linguistic facts. Second, the court must decide what makes an interpretation “ordinary.” Third, if one wishes to search a corpus to glean the ordinary meaning of a term, one must decide in advance what to search. Fourth, there are different reasons as to why a particular meaning might present a weak showing in a corpus search and these need to be understood. Each of these issues is described and discussed

October 12, 2017 | Permalink | Comments (0)

Slobogin on Neuroscience and Culpability

Slobogin christopherChristopher Slobogin (Vanderbilt University - Law School) has posted Neuroscience Nuance: Dissecting the Relevance of Neuroscience in Adjudicating Criminal Culpability (Journal of Law & the Biosciences, Forthcoming) on SSRN. Here is the abstract:
 
Most scholars who have written about the role of neuroscience in determining criminal liability and punishment take a stance somewhere between those who assert that neuroscience has virtually nothing to say about such determinations and those that claim it will upend the assumption that most choices to commit crime are blameworthy. At the same time, those who take this intermediate position have seldom clarified how they think neuroscience can help. This article tries to answer that question more precisely than most works in this vein. It identifies five types of neuroscience evidence that might be presented by the defense and discusses when that evidence is material under accepted legal doctrine. It concludes that, even on the assumption that the data presented are accurate, much commonly proffered neuroscientific evidence is immaterial or only weakly material, not only at trial but also at sentencing. At the same time, it recognizes that certain types of neuroscience evidence can be very useful in criminal adjudication, especially at sentencing.

October 12, 2017 | Permalink | Comments (0)

Fagan on Legal Cycles and Stabilization Rules

Frank Fagan (EDHEC Business School) has posted Legal Cycles and Stabilization Rules (The Timing of Lawmaking, Frank Fagan & Saul Levmore (eds.) Edward Elgar Ltd., 2017) on SSRN. Here is the abstract:
 
A legal cycle is legislation that takes effect contingently, where contingent factors are ex ante known to fluctuate with some level of predictable regularity. Apart from broad constitutional mandate, lawmakers have historically and sub-optimally responded to legal cycles with general and patchwork patterns of legislation involving repeal, amendment, and new enactment. This is true across nearly all domains of codified law. This chapter develops a normative theory of how lawmakers should respond to legal cycles by setting forth the optimal architecture of stabilization rules. Under a general set of conditions, stabilization rules work toward smoothing fluctuations in rulemaking and exert downward pressure on short-term legislative pathologies that result from cognitive bias and interest group politics. The potential of welfare-enhancing stabilization rules is discussed across banking law, budget law, environmental law, health law, national security law, and criminal sentencing.

October 12, 2017 | Permalink | Comments (0)

Elm et al. on Immigration Defense Waivers in Plea Agreements

Donna Lee ElmSusan R. Klein and Elissa Steglich (University of Texas at Austin - School of Law, University of Texas School of Law and University of Texas at Austin - School of Law) have posted Immigration Defense Waivers in Federal Criminal Plea Agreements (Mercer Law Review Forthcoming) on SSRN. Here is the abstract:
 
This article focuses on DOJ’s inclusion of waivers of immigration relief in plea agreements for noncitizen federal defendants, and proposes some challenges to these waivers. Federal district and appellate judges, immigration judges, and the Board of Immigration Appeals (“BIA”) members will find below legal grounds to decline to accept these waivers. Such tools are critical to combat this new federal immigration waiver propensity – which is especially disturbing in light of AG Sessions’ April 11, 2017 Memorandum requiring federal prosecutors to substantially broaden immigration prosecutions, and that limits discretion on whom not to deport. The government seeks waivers of critical rights without giving noncitizen defendants access to the tools and knowledge to make fully informed decisions.

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October 12, 2017 | Permalink | Comments (0)

Rich on The School-to-Prison Pipeline

Rich lisaLisa A Rich (Texas A&M University School of Law) has posted 'CERD-AIN' Reform: Dismantling the School-to-Prison Pipeline Through More Thorough Coordination of the Departments of Justice and Education (Loyola of Los Angeles Law Review, Vol. 49, No. 1, 2016) on SSRN. Here is the abstract:
 
In the last year of his presidency, President Barack Obama and his administration have undertaken many initiatives to ensure that formerly incarcerated individuals have more opportunities to successfully reenter society. At the same time, the administration has been working on education policy that closes the achievement gap and slows the endless flow of juveniles into the school-to-prison pipeline. While certainly laudable, there is much more that can be undertaken collaboratively among executive branch agencies to end the school-to-prison pipeline and the endless cycle of people re-entering the criminal justice system. This paper examines the rise of the school-to-prison pipeline through the international lens of the United Nations Committee to End All Forms of Racial Discrimination, which has repeatedly raised humanitarian concerns about the criminal justice system in the United States and its detrimental impact on underserved communities. The paper examines recommendations made by the Leadership Conference on Civil and Human Rights to the Committee and recommends that policymakers work harder to implement those recommendations so that the United States is in compliance with its treaty requirements.

October 12, 2017 | Permalink | Comments (0)

Symposium on Experts, Inference and Innocence

Seton Hall Law Review will hold this symposium, in honor of the D. Michael Risinger on the occasion of his retirement, on October 27-28. The distinguished slate of speakers follows the jump.

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October 12, 2017 | Permalink | Comments (0)

Wednesday, October 11, 2017

Bloom & Clark on Cell Site Location Information

Robert M. Bloom and William Clark (Boston College Law School and Boston College, Law School, Students) have posted Small Cells, Big Problems: The Increasing Precision of Cell Site Location Information and the Need for Fourth Amendment Protections (The Journal of Criminal Law and Criminology, Vol. 106, No.2, 2017) on SSRN. Here is the abstract:
 
The past fifty years has witnessed an evolution in technology advancement in police surveillance. Today, one of the essential tools of police surveillance is something most Americans carry with them in their pockets every day, the cell phone. Cell phones not only contain a huge repository of personal data, they also provide continuous surveillance of a person’s movement known as cell site location information (CSLI).

In 1986, Congress sought to provide some privacy protections to CSLI in the Stored Communication Act. Although this solution may have struck the proper balance in an age when cell phones were a mere novelty in the hands of a comparative few, we now live in an age where, as the U.S. Supreme Court recently recognized, cell phones could be seen “an important feature of human anatomy.” In 1986, there were only an estimated 681,825 subscribers serviced by 1531, cell sites. By 2013, there were 335 million subscribers and over 340,000 cell sites.

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October 11, 2017 | Permalink | Comments (0)

Psutka & Sheehy on Strip-Searching Women in Canada

Michelle Psutka and Elizabeth A. Sheehy (University of Ottawa and University of Ottawa - Common Law Section) have posted Strip-Searching of Women in Canada: Wrongs and Rights ((2016) 94 Canadian Bar Review 241-279) on SSRN. Here is the abstract:
 
This article describes and analyzes the persistence of illegal strip-searching of women in Canada by police.

October 11, 2017 | Permalink | Comments (0)

Miao on Death-Eligible Murder in China

Michelle Miao (The Chinese University of Hong Kong, Faculty of Law) has posted Defining Death-Eligible Murder in China (American Journal of Comparative Law, Forthcoming) on SSRN. Here is the abstract:
 
The central purpose of this article is to illuminate the process and politics of China’s sentencing process for capital murder. Since 2007, China’s death penalty reform has resulted in a recalibration of the convicted murderers’ eligibility for execution. The reform heralded a substantial decline in the number of capital sentences, as well as a rise of the alternative to executions – the suspended death sentence. In the reform era, how do Chinese courts determine who should be spared from execution and who deserves the ultimate punishment of death? This article uses quantitative analysis of 369 capital murder cases, as well as elite interviews with 40 judges − from China’s provincial-level Higher People’s Courts and the Supreme People’s Court − to analyze the political logic behind Chinese courts’ approach to defining the execution-worthiness of convicted murderers. While there is rich literature on capital sentencing in the U.S., there is a dearth of comparative analysis of the challenges Chinese courts face in drawing the distinction between life and death sentences in the country’s unique social and political context. This article seeks to make a contribution to this crucial topic.

October 11, 2017 | Permalink | Comments (0)

Corrado on Criminal Quarantine and the Burden of Proof

Corrado michaelMichael Louis Corrado (University of North Carolina School of Law) has posted Criminal Quarantine and the Burden of Proof on SSRN. Here is the abstract:

In previous papers I have argued for these two points: first, that the free will realist who would justify punishment has the burden of establishing to a high level – perhaps beyond a reasonable doubt, but certainly at least by clear and convincing evidence – that any person to be punished acted freely in breaking the law; and, second, that that level of evidence is simply not there. In this paper I argue for two parallel points: first, that the free will skeptic who would justify universal criminal quarantine is also faced with a burden of proof, the burden to establish to a similarly high level that no human being ever acts freely; and, second, that sufficient evidence for that conclusion is not there either. If we must choose between punishment and quarantine, the methods that constitute punishment are preferable to those that constitute quarantine, and so it may be that if there is not sufficient evidence to support either punishment or quarantine, the better course for the state is to choose to punish, as some have argued. If we are not to accept that conclusion, I believe, we must find an institution that, unlike both punishment and quarantine, can be justified on the evidence, but an institution which employs not the methods of quarantine but those of punishment. I suggest the “takings” doctrine as a basis for carving out such an institution. I solicit your comments.

October 11, 2017 | Permalink | Comments (0)