Friday, October 24, 2014
Patricia J. Falk (Cleveland-Marshall College of Law) has posted Not Logic, But Experience: Drawing on Lessons from the Real World in Thinking About the Riddle of Rape-by-Fraud (123 Yale L.J. Online 353 (2013)) on SSRN. Here is the abstract:
Courts, legislatures, and legal scholars have been fascinated with rape cases involving fraud or deception for more than 150 years, fueled by some vivid real-world examples. Some legal scholars have argued that this fascination with rape-by-fraud has been to the detriment of the overall evolution of rape law. In proposing a solution to the riddle of rape-by-deception, Jed Rubenfeld argues for replacing the “myth” of sexual autonomy with the right to self-possession. In doing so, he goes too far in retrenching — or, perhaps more accurately, eviscerating — rape law doctrine while ignoring the modern “state of the art” of sexual offense provisions. After he has finished pruning rape law to deal with the conundrum of rape-by-deception, there is not much rape law left. Moreover, Rubenfeld’s critical foundational claim — that deceptive sex “isn’t that bad” — is not empirically sound and is not respectful of the real harm experienced by victims. It is neither an accurate reflection of the normative development of rape law nor consistent with the evolving trajectory of rape law doctrine. Finally, Rubenfeld’s all-or-nothing solution may be far worse than the problem he seeks to remedy, especially in light of other, less drastic means of reconciling cases of rape-by-fraud with sexual autonomy. Rather than drawing the line at force and eliminating nonconsent, criminal rape law should develop a more robust understanding of sexual autonomy, the contours of effective consent, and cognizable fraudulent threats to that consent.
From Jurist. In part:
A UN rights expert said Wednesday that the increase in the use of armed drones in domestic law enforcement may violate human rights [press release]. In his report [text, PDF] to the UN General Assembly, UN Special Rapporteur on extrajudicial, summary or arbitrary executions Christof Heyns [official website] raised a number of serious concerns with regards to the use of armed drones by the police as well as private security firms.
This Article offers the foundational account of systemic lying from a definitional and theoretical perspective. Systemic lying involves the cooperation of multiple actors in the legal system who lie or violate their oaths across cases for a consistent reason that is linked to their conception of justice. It becomes a functioning mechanism within the legal system and changes the operation of the law as written. By identifying systemic lying, this Article challenges the assumption that all lying in the legal system is the same. It argues that systemic lying poses a particular threat to the legal system. This means that we should know how to identify it and then try to address it once we see it happening. Accordingly, this Article presents a guide to identifying a set of symptoms that are the hallmarks of systemic lying and posits a unitary cause, although not a one-size-fits-all solution. Through a series of case studies, it shows that systemic lying emerges as a saving mechanism that mediates between culture and law. Rather than allow the law to take its course and deliver what would be perceived as unjust outcomes, participants lie and preserve the facade of a system that delivers results consonant with popular moral intuitions. Systemic lying is both persistent and powerful because it achieves a type of licitness that individual lies or underground deception lack. At the same time, it poses a unique threat to the legitimacy of the system by signifying that truth is not paramount in the courtroom.
Danuta Mendelson and Mirko Bagaric (Deakin University - School of Law and Deakin University - School of Law) have posted Assisted Suicide Through the Prism of the Right to Life (International Journal of Law and Psychiatry, (2013)) on SSRN. Here is the abstract:
Part of the reason for the ongoing confusion regarding the status of assisted suicide is the cluttered moral and legal matrix that is normally invoked to evaluate the practice. It results in a calculus that is impossible to coherently unravel, allowing commentators to tenably assert any position. The authors attempt to inject clarity into the debate by focusing on the issue through the lens of the most important interest at stake: the right to life. It is arguable that while there are well-established exceptions to the right to life, they only apply where the right to life is itself at stake (such as self-defence). There is no sound argument for suggesting that the circumstances underpinning suicide constitute another exception to the right to life. Thus, suicide and assisted suicide are unjustifiable. An analysis of the empirical data in jurisdictions where assisted suicide has been legalised suggests that legalisation leads to an increase in assisted suicides. The adverse indirect consequences of the often ostensibly compassionate act of assisted suicide outweigh any supposed benefits from the practice. It follows that assisted suicide should lead to criminal sanctions. At the same time, it is important to acknowledge that, paradoxically, the right to life arguments against assisted suicide mandate greater community measures to eliminate or reduce the causes of suicide.
Orin Kerr has this post at The Volokh Conspiracy, excerpting the press release, which notes the following focus:
* Significant expansion of access to training through an ambitious combination of scholarship support for indigent defenders, web-based training via the Internet, and targeted on-site training for indigent defense providers who lack adequate resources to provide comprehensive continuing education for line attorneys and supervisors.
* Examination of state level indigent defense delivery systems in order to ascertain strengths that can be replicated elsewhere as well as weaknesses and the ways in which those can be rectified.
Thursday, October 23, 2014
Edward J. Imwinkelried (University of California, Davis - School of Law) has posted Formalism versus Pragmatism in Evidence: Reconsidering the Absolute Ban on the Use of Extrinsic Evidence to Prove Impeaching, Untruthful Acts that Have Not Resulted in a Conviction on SSRN. Here is the abstract:
In the adversary system, a litigant not only has the right to present evidence supporting his or her theory of the case; the litigant is also entitled to attack the opposing testimony. In Crane v. Kentucky, 476 U.S. 683 (1986), the Supreme Court held that under the Sixth Amendment, the accused has a constitutional right to attack the weight and credibility of opposing testimony.
There are two ways in which the litigant can mount such an attack. First, the litigant may cross-examine the opposing witness. Second, the litigant can present “extrinsic evidence” of the impeaching facts: After the witness to be impeached has left the stand, the litigant may present documentary or testimonial evidence to prove the impeaching fact. Of course, if the witness to be impeached fully concedes the impeaching fact on cross-examination, there is no need for the litigant to resort to extrinsic evidence.
However, problems arise when, during cross-examination, the witness denies the impeaching fact.
Erin L. Sheley (George Washington University - Law School) has posted Doubled Jeopardy: The Condemned Woman as Historical Relic (24 Law and Literature 211 (2014 Forthcoming)) on SSRN. Here is the abstract:
This article explores how Sir Walter Scott's fictional condemned women serve as relics through which a history of evolving British legal authority becomes present and legible. It argues that Scott's treatment of gender aestheticizes a particular concept of and reaction to the condemned woman in the context of the common law tradition generally. Using the backdrop of eighteenth century penal practice, it also shows how Scott establishes the female condemned body as an object necessarily fixed in time in order to contemplate legal change through a historically controlled process. The first part of the article considers the late eighteenth century movement to abolish the punishment of burning at the stake for women convicted of treason, and the extent to which competing understandings of chivalry reified an entire history of penal practice into the body of the burned woman. The second part argues that the interrelations between archaic practice and evolved norm which characterize the precedent-based common law system are dramatized in the fixed, idealized bodies of Constance de Beverly and Rebecca of York through which Scott acknowledges the implicit need for legal change over time, while simultaneously legitimizing adherence to a chivalric tradition.
Robert P. Mosteller (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Pernicious Inferences: Double Counting and Perception and Evaluation Biases In Criminal Cases (Howard Law Journal, Vol. 58, No. 2, 2015) on SSRN. Here is the abstract:
As DNA exonerations have brought attention the conviction of innocent defendants, I have noticed a troubling feature of many of the cases. The jury’s decision, although wrong, seemed reasonable because based on multiple strands of independent evidence, all of which had to be erroneous. As one looks closer, however, the evidence is not independent, but the linkages were generally not noticed and sometimes even hidden.
Wednesday, October 22, 2014
From the Los Angeles Times, not The Onion, a story and video clip that will only feed the attitude of those who think California is different. In part:
The video, originally posted on the site FilmOn.com, shows a man dressed as Mr. Incredible battling a woman dressed as Batgirl. Moments later, Chewbacca, Waldo from the "Where's Waldo" series and Freddy Krueger -- yes, Freddy Krueger -- play peacekeepers and try to break up the scuffle.
Brandon Buskey and Daniel Korobkin (ACLU and ACLU of Michigan) have posted Elevating Substance Over Procedure: The Retroactivity of Miller v. Alabama Under Teague v. Lane (The City University of New York Law Review, Vol. 18.1, 2015, Forthcoming) on SSRN. Here is the abstract:
This Article proposes a framework establishing that the United States Supreme Court’s decision in Miller v. Alabama, which forbids states from automatically sentencing juveniles to life imprisonment without any meaningful opportunity for release, must apply retroactively to hundreds of juveniles whose convictions and life sentences were already final at the time of the decision. Such a framework is timely and critical. Although the lower state and federal courts are almost evenly divided on the question, the Supreme Court has yet to settle the divide.
S. Persaud (Florida A&M University - College of Law) has posted Parallel Investigations between Administrative and Law Enforcement Agencies: A Question of Civil Liberties (University of Daytona Law Review, Vol. 39, 2013) on SSRN. Here is the abstract:
The article discusses issues of civil liberty in parallel investigations between administrative and law enforcement agencies of the U.S. Topics discussed include failing of current legal framework to challenge the parallel investigation, sharing of information between the administrative and law enforcement agencies on completion of an investigation without notice to the affected party, and protecting individual liberties while exchanging information.
Mark W. Bennett (U.S. District Court (Northern District of Iowa)) has posted Sudden Death: A Federal Trial Judge's Reflections on the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Panalty Cases (Hofstra Law Review, Vol. 42, p. 391, 2013) on SSRN. Here is the abstract:
An experienced federal district judged discuss the role of the ABA Guidelines for the Appointment Performance of Defense Counsel in Death Penalty Cases. This includes his personal experiences from two lengthy federal death penalty trials where both defendants received the death penalty. The Guidelines were even more crucial in a 18 trial day, 28 U.S.C. 2255 proceeding, where the judge granted an new penalty phase re-trial based, in part, on significant ineffective assistance of counsel for many violations of the Guidelines and the 6th Amendment. It is a sad narrative of what can go wrong when the Guidelines are not scroupsly followed and the benefits the Guidelines to all involved in the death penalty process.
Tuesday, October 21, 2014
New York state has agreed to settle a lawsuit claiming its public defense system is underfunded and violates poor people's rights to counsel a day before the case was set to go to trial.
The state will establish a cap on the number of cases court-appointed attorneys may handle and will ensure defendants have lawyers at their first court appearance, among other reforms, the New York Civil Liberties Union announced Tuesday.
Paul Leighton (Eastern Michigan University - Dept of Sociology, Anthropology & Criminology) has posted 'A Model Prison for the Next 50 Years': The High-Tech, Public-Private Shimane Asahi Rehabilitation Center (Justice Policy Journal 11(1), Spring 2014) on SSRN. Here is the abstract:
The declining incarceration rate in America provides an opportunity to rethink the quality of prisons and ask: If you were told that your neighbors were newly released prisoners, what kind of institution would you want them to have served time in? One positive model of prison is a high-tech, public-private partnership prison that embraces rehabilitation, reentry and restorative justice – and that also strives to have the local community as a partner. The article reports on a visit to Shimane Asahi rehabilitation center in Japan. It provides background on the prison and Japan’s experiment with privatizing “social infrastructure.” The article then describes the involvement of the private sector and the infusion of technology, including tracking, scanners, and automated food delivery. Next, it provides an overview of numerous educational, therapeutic, and vocational programs. Finally, it discusses how the prison has a center for community engagement and makes many efforts to utilize the resources of the local region.
Rick Sarre and Tim Prenzler (University of South Australia - School of Law and Griffith University - School of Criminology and Criminal Justice) have posted The Criminal Justice System (in H Hayes and T Prenzler. An Introduction to Crime and Criminology, Pearson Prentice Hall Australia 4th edition, pp.255-271) on SSRN. Here is the abstract:
This chapter explores some of the interrelationships of the core components of the Australian criminal justice system - police, courts and corrections - covered in greater depth in the following three chapters. It explains the theory of the separation of powers that makes it a rather disconnected system; sets out some of its main dimensions in terms of demands, costs and personnel; and then examines selected problems and issues. Of particular note is the extremely low productivity of the system in terms of translating crimes brought to the attention of police into convictions of those who committed the crimes.
Under South African law, the country's most famous disabled athlete will have to serve at least one-sixth of his sentence -- 10 months -- before he can ask for it to be converted to community supervision instead, most likely under house arrest.
In Padilla v. Kentucky, the United States Supreme Court held that the Sixth Amendment requires criminal defense attorneys to advise non-citizen clients regarding the deportation risks associated with a guilty plea. The Court held in that case that a defendant's guilty plea may be involuntarily made when defense counsel fails to advise the client about those deportation risks. Trial judges accepting guilty pleas from criminal defendants have a duty to confirm the defendant makes the plea voluntarily and intelligently. Judges make this determination through the plea colloquy -- a series of admonishments and questions with the pleading defendant done prior to accepting the plea. Padilla at a minimum requires trial judges to inquire whether or not the defendant is a non-citizen, and if so, whether the defendant has received the correct advice regarding the guilty plea's immigration consequences. The judge's failure to do so may result in a conviction tainted by ineffective assistance or supported by a plea not voluntarily and intelligently made.
This Article suggests trial judges should take affirmative steps prior to accepting a non-citizen's plea to reveal whether counsel has provided relevant and correct immigration advice to the defendant.
Jurist has this piece:
The Nevada Supreme Court [official website] on Thursday ruled [opinion, PDF] that Nevada's implied consent law [text], which allows police officers to take blood samples of motorists to determine impairment, is unconstitutional. The case involved a man named Michael Byars who was stopped by state troopers for driving under the influence of a controlled substance. Upon questioning the suspect the officers detected the smell of marijuana and arrested Byars, who was later subject to blood testing allowed by Nevada's implied consent law. The Nevada Supreme court ruled that the implied consent rule as used within the case was unconstitutional because the warrantless search violated the Fourth Amendment [text]. However, the evidence found through the blood testing was not suppressed by use of the exclusionary rule because the court found the officers acted in good faith.
Monday, October 20, 2014
Caitlin E. Borgmann (CUNY School of Law) has posted The Constitutionality of Government-Imposed Bodily Intrusions (University of Illinois Law Review, p. 1059, 2014) on SSRN. Here is the abstract:
Throughout its history, this country has recognized the common law right against bodily intrusions. It is considered among the most cherished of rights. It seems beyond debate that a parallel right against government-imposed bodily intrusions should receive robust constitutional protection. Yet the Supreme Court’s treatment of the right against government-imposed bodily intrusions is muddled and lacks an overarching theory. Far from recognizing the right as fundamental, the Court has effectively demoted the right from its deserved status through two major analytical missteps. First, the Court has created arbitrary doctrinal barriers between different manifestations of the same right rather than consistently treating it as a unitary, fundamental substantive due process right. Second, it has given insufficient weight to the nonphysical, or “psychological” harms of forced bodily intrusions, and has deferred excessively to the government’s justifications for intruding. This Article is the first to conduct a comprehensive analysis of the scattered Supreme Court precedents on government-compelled bodily intrusions. In place of the ad hoc balancing tests the Court has tended to employ, this Article proposes a unified framework for assessing government-compelled bodily intrusions that recognizes substantive due process as the matrix for the right and that takes meaningful account of the psychological harms that accompany forced physical intrusions and the importance of considering less intrusive alternatives. This Article then applies the framework to forced blood drawing, an issue addressed in a recent Supreme Court decision, and to state pre-abortion ultrasound mandates, the subject of a developing circuit split. The proposed framework finally places the right against government-imposed bodily intrusions on its proper constitutional footing.
Issue summaries are from ScotusBlog, which also links to papers:
- Los Angeles v. Patel: (1) Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and (2) whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.
- Henderson v. United States: Whether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests; or (2) sell the firearms for the benefit of the defendant.
- Chappell v. Ayala: Whether it is unconstitutional for a state court to exclude an accused individual and defense lawyers from a hearing to examine the legality of prosecutors’ exclusion of minority jurors from serving.