CrimProf Blog

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

Thursday, June 7, 2018

Miller on State Limits on Post-Conviction Investigation

Kathryn Miller has posted The Attorneys are Bound and the Witnesses are Gagged: State Limits on Post-Conviction Investigation in Criminal Cases (California Law Review, Vol. 106, No. 135, 2018) on SSRN. Here is the abstract:
 
This Article is the first to take a comprehensive look at the ways in which State actors restrict post-conviction investigations in criminal cases, especially capital cases. By examining these restrictions in the context of interviews with jurors, victims, and State witnesses, this Article reveals that they harm criminal defendants and fail to achieve stated policy goals. The Article then examines why traditional legal arguments against these restrictions have failed, and ultimately makes the case for a constitutional right to investigate state post-conviction proceedings, grounded in the fundamental fairness prong of the Due Process Clause.

June 7, 2018 | Permalink | Comments (0)

Wednesday, June 6, 2018

Bielen et al. on Blame Based on Name

Samantha BielenPeter Grajzl and Wim Marneffe (Hasselt University - Faculty of Applied Economics, Washington and Lee University - Department of Economics and Hasselt University - Faculty of Applied Economics) have posted Blame Based on One's Name? Extralegal Disparities in Criminal Conviction and Sentencing on SSRN. Here is the abstract:
 
We advance the literature on extralegal disparities in the administration of criminal justice by offering the first analysis of the role of defendant's name. Drawing on uniquely detailed data on adjudication of drug offenses in Belgium, we find that, all else equal, defendants with a perceived Islamic name face on average three to five percentage points greater prospects of conviction than defendants with a Belgian name. The name effect is not discernible with respect to sentence severity; does not apply to defendants with a non-Islamic foreign name; does not take place via defendant's pretrial custody status; affects primarily male defendants; and magnifies the effect of prior criminal record. The presiding judge's exposure to Islamic culture is an important moderating factor: all else equal, the positive effect of defendant's perceived Islamic name on conviction prospects occurs only when the presiding judge lives in an area with few mosques or when the nearest mosque is far from the judge's home.

June 6, 2018 | Permalink | Comments (0)

Kamali & Green on England's Adoption of Jury Trial

Elizabeth Papp Kamali and Thomas A. Green (Harvard Law School and University of Michigan Law School) have posted The Assumptions Underlying England's Adoption of Trial by Jury for Crime (Travis Baker, ed., Law and Society in Later Medieval England and Ireland: Essays in Honour of Paul Brand (New York: Routledge, 2018), 51-81) on SSRN. Here is the abstract:
 
Within a few years of Lateran IV’s prohibition of priestly involvement in trial by ordeal, England moved definitively toward a criminal justice system based on trial by jury. This paper will explore the underlying assumptions of king, council and justices at the time of the criminal trial jury’s introduction (c. 1220) as to the jury’s precise function within a prosecutory system that countenanced only capital sanctions for those convicted of felony. Unearthing these assumptions will require careful consideration of earlier ordeal procedure and other kinds of juries in the late twelfth and early thirteenth centuries, most notably juries of presentment, coroners’ inquests, and juries tasked with responding to writs de odio et atia. It will also require situating trial by jury within the broader context of felony adjudication with its manifold escape valves, including benefit of clergy, sanctuary, abjuration and pardons.

Continue reading

June 6, 2018 | Permalink | Comments (0)

Vandervort on Sexual Assault

Lucinda Vandervort (University of Saskatchewan) has posted 'Reasonable Steps': Amending Section 273.2 to Reflect the Jurisprudence (2019 Criminal Law Quarterly, Forthcoming) on SSRN. Here is the abstract:
 
This short piece proposes an amendment to section 273.2 of the Canadian Criminal Code. Section 273.2, enacted in 1992, specifies circumstances in which belief in consent is not a defence to sexual assault. The proposed amendment is designed to update the Code and thereby ensure that the wording of this statutory provision reflects the current state of the law, including significant jurisprudential developments related to mens rea and the communication of voluntary agreement (i.e., affirmative sexual consent) achieved by Canadian judges since the enactment of section 273.2 in 1992.

June 6, 2018 | Permalink | Comments (0)

Gonzales Rose on Racial Character Evidence in Police Killing Cases

Rose jasmine gonzalesJasmine B. Gonzales Rose (University of Pittsburgh - School of Law) has posted Racial Character Evidence in Police Killing Cases (Wisconsin Law Review, Vol. 2018, No. 3, p. 369) on SSRN. Here is the abstract:
 
The United States is facing a twofold crisis: police killings of people of color and unaccountability for these killings in the criminal justice system. In many instances, the officers’ use of deadly force is captured on video and often appears clearly unjustified, but grand and petit juries still fail to indict and convict, leaving many baffled. This Article provides an explanation for these failures: juror reliance on “racial character evidence.” Too often, jurors consider race as evidence in criminal trials, particularly in police killing cases where the victim was a person of color. Instead of focusing on admissible evidence, jurors rely on race to determine the defendant’s innocence, the victim’s propensity for violence, and the witnesses’ credibility. This Article delineates the ways in which juror racial bias is utilized to take on evidentiary value at trial and constructs evidence law solutions to increase racial equality in the courtroom.

June 6, 2018 | Permalink | Comments (0)

Cowan & Campbell on Sexual History and Vulnerability in Sex Offenses

Sharon Cowan and Liz Campbell (University of Edinburgh - School of Law and Independent) have posted The Relevance of Sexual History and Vulnerability in the Prosecution of Sexual Offences (Peter Duff, Pamela R. Ferguson (ed.) Scottish Criminal Evidence Law (Edinburgh University Press 2017)) on SSRN. Here is the abstract:
 
The investigation and prosecution of sexual offences remains one of the most fraught and problematic aspects of criminal justice. Even with the introduction of various protective measures for vulnerable witnesses and complainers, deep and justifiable concerns persist about the level of reporting to the police, the extent of attrition, and the conviction rates.The treatment (actual and perceived) of complainers in the court room has a significant influence on these matters. Although ‘rape shield’ protections have been embedded within criminal justice systems for some time, it has been suggested by commentators in various jurisdictions that these legislative efforts remain susceptible to being sidestepped either through defence trial strategies or through “judicial override”, such that the law in action is less protective and useful than was hoped. Using Scotland as a case study, this paper examines the ways in which laws designed to protect sexual assault complainers in Scotland fail in practice. We use the lens of vulnerability to examine the problematic ways in which criminal evidence and procedure in Scotland fails to protect many of the most vulnerable victims of sexual assault, despite recent reforms. We will argue that focusing on the ‘rape shield’ provisions, as well as the measures designed to protect vulnerable witnesses, as ‘solutions’ to the problems faced by sexual assault complainers in an adversarial system, allows us to ignore more systemic questions about how the criminal justice system itself produces or perpetuates vulnerability, as well as how the criminal justice system understands and promotes a certain view of what it means to be vulnerable. We suggest that more research is urgently required to shed light on the extent of the ‘justice gap’, and that further and deeper reform is needed, at the substantive, procedural and cultural levels.

June 6, 2018 | Permalink | Comments (0)

Knake on Abolishing Death

Knake reneeRenee Knake (University of Houston Law Center) has posted Abolishing Death (Duke Journal of Constitutional Law & Public Policy, Vol. 13, No. 2, 2018) on SSRN. Here is the abstract:
 
This essay, written for the Duke Journal of Constitutional Law and Public Policy Symposium, An Even More Perfect Union: Proposed Amendments to the Constitution, makes the case for a constitutional amendment to abolish the death penalty and lays out possible routes to enactment. Part one of the essay opens by recounting one Congress member’s unsuccessful efforts at launching a death penalty amendment. It then describes the present state of the law in the United States regarding capital punishment, including recent data showing a significant decline in death sentences and executions among the few states still engaging in the practice. Part two provides an overview of the process established by Article V for amending the Constitution, and then evaluates the potential paths for a successful death penalty abolition amendment.
 

June 6, 2018 | Permalink | Comments (0)

Tuesday, June 5, 2018

Marcus on Miranda and Juveniles

Marcus paulPaul Marcus (William & Mary Law School) has posted The Miranda Custody Requirement and Juveniles (Tennessee Law Review, Vol. 85, No. 253, 2018) on SSRN. Here is the abstract:
 
Concerns about the interrogation process and the ability of minors to navigate the criminal justice system often intersect. The impact of the age of juveniles can be seen in a variety of judicial decisions, most markedly those dealing with punishment. But judicial concern for juveniles goes well beyond sentencing. The interrogation process raises especially grave fears.

Since the Supreme Court issued its landmark ruling in Miranda v. Arizona disallowing compelled inculpatory statements by criminal suspects and defendants, there has been concern as to whether juveniles fully understand and appreciate their rights as articulated in Miranda and based in the Fifth Amendment to the United States Constitution.

Continue reading

June 5, 2018 | Permalink | Comments (0)

Koppelman on Kleinfeld on Punishment

Koppelman andrewAndrew Koppelman (Northwestern University School of Law) has posted American Evil: A Response to Kleinfeld on Punishment (50 Ariz. St. L.J. 179 (2018)) on SSRN. Here is the abstract:
 
Joshua Kleinfeld argues that American moral understandings are reflected in its system of criminal justice. Far more than Europeans, Americans regard those who have committed crimes as irretrievably defective people whom it is appropriate to lock away for many years. American law regards even minor and first-time criminals as having an unchangeable disposition of hostility or depraved indifference toward all that is good. This paper argues that under either of these understandings of the term, the American criminal justice system itself is evil.

June 5, 2018 | Permalink | Comments (0)

Calabresi on Robert Mueller's Appointment

 
I argue in this Legal Opinion that Deputy Attorney General Rod Rosenstein's appointment of Robert Mueller is unconstitutional both under the test for officer inferiority set forth in Justice Scalia's opinion in Edmond v. United States, which is cited as good authority in Free Enterprise Fund v. PCAOB and also under the test for officer inferiority set forth in Chief Justice Rehnquist's majority opinion in Morrison v. Olson. Under both tests, Mueller is acting as a principal officer even though he has not been nominated by the President and confirmed by the Senate. Mueller's appointment is therefore unconstitutional.

June 5, 2018 | Permalink | Comments (0)

White on Politics and Public Corruption

Jeff White has posted McDonnell's Misapprehension of the Role of Access in Politics and Public Corruption (North Carolina Law Review, Vol. 96, No. 4, 2018) on SSRN. Here is the abstract:
 
In its decision overturning former Virginia Governor Bob McDonnell’s bribery conviction in McDonnell v. United States, the United States Supreme Court narrowly construed the definition of official act, which is an element under most criminal public corruption statutes. The Court did so because it feared limiting gift-giving constituents’ access to public officials would limit all constituents’ access, thus inhibiting the political process. However, in doing so, the Court did not give adequate consideration to the countervailing policy arguments surrounding access in politics and misconstrued how federal corruption laws function. The Court acted as if only the definition of an official act separated ordinary constituent services from public corruption, but federal corruption laws have multiple elements. Included amongst those elements is a mens rea element, which the Court could have used to differentiate situations where public officials provide ordinary constituents public services and where they corruptly provide special favors to parties only because they gave the official a gift. Instead of protecting the political process as it hoped, the Court actually weakened representative democracy by widening the opportunity for preferential access.

Continue reading

June 5, 2018 | Permalink | Comments (0)

Ingram on Doing Justice and Federal Prosecutors

Scott Ingram (High Point University) has posted Representing the United States Government: Reconceiving the Federal Prosecutor's Role Through a Historical Lens (Notre Dame Journal of Law, Ethics and Public Policy, Vol. 31, No. 2, 2017) on SSRN. Here is the abstract:
 
For nearly 100 years courts and legal scholars have held prosecutors to the “justice” standard, meaning that the prosecutor’s first duty is to ensure that justice is done. With this command, prosecutors have increased their discretion. The modern prosecutor’s power is unrivaled in the criminal justice system. Judges and defense attorneys have ceded some of their power to prosecutors. The prosecutor’s power has led a host of commentators to critique prosecutorial use of power for a variety of reasons. Rather than add to this voluminous literature by defending or critiquing prosecutorial power, this Article challenges the underlying assumption of prosecutorial power: that prosecutors pursue justice. It argues that prosecutors should be freed from the “justice” standard and, instead, at least on the federal level, be responsive only to clearly articulated executive policy.

Continue reading

June 5, 2018 | Permalink | Comments (0)

Monday, June 4, 2018

Hoofnagle et al. on Online Pharmacies and Technology Crime

Chris Jay HoofnagleIbrahim Altaweel and Nathaniel Good (University of California, Berkeley - School of Information, Good Research and University of California, Berkeley - School of Information) have posted Online Pharmacies and Technology Crime (in The Handbook of Technology, Crime and Justice (Michael McGuire and Thomas J. Holt, eds.)(Routledge Press 2016)) on SSRN. Here is the abstract:
 
Online pharmacies are businesses that sell prescription-controlled drugs over the internet. Some online pharmacies operate illegally in the United States, by providing controlled pharmaceuticals without a prescription, and some pharmacies sell controlled substances. Online pharmacies are also a major driver of other kinds of computer crime because in order to gain consumers’ attention, pharmacies and their marketers send tremendous volumes of spam email and engage in other tactics that involve computer intrusions, such as the creation of botnets.

Online pharmacies are both an enduring technology crime challenge, and a lens for understanding cybercrime.

Continue reading

June 4, 2018 | Permalink | Comments (0)

Anderson et al. on Forensic Science

James M. AndersonCarl MatthiesSarah Greathouse and A.V. Chari (RAND Corporation, RAND Corporation, RAND Corporation and University of Sussex) have posted The Unrealized Promise of Forensic Science -- An Empirical Study of its Production and Use on SSRN. Here is the abstract:
 
In theory, forensic science provides independent, objective, dispassionate evidence in proceedings often charged with emotion and the failings of human recollection. But how does it work in practice? We collected data on the prevalence and use of forensic evidence in five jurisdictions across the United States. We also analyzed existing data on crime labs and conducted an experimental survey of prosecutors and criminal defense attorneys to measure the effect of forensic evidence on the plea-bargaining process.

Our findings are sobering. Despite considerable investment in forensic databases and crime laboratory upgrades to improve capacity, forensic evidence is still being analyzed in only a small fraction of cases in which it is available.

Continue reading

June 4, 2018 | Permalink | Comments (0)

Levine & Rushin on Interrogation Parity

Kate Levine and Stephen Rushin (St. John's University - School of Law and Loyola University Chicago School of Law) have posted Interrogation Parity (University of Illinois Law Review, Forthcoming) on SSRN. Here is the abstract:
 
Over the past several years, many have taken note of the special interrogation protections afforded to the police when they become the target of internal or criminal investigation. There is also widespread agreement that existing interrogation protections for ordinary criminal suspects are not strong enough. 

In this symposium essay, we propose a novel method by which the federal government could combat this sort of distributional inequality in the criminal justice system, while promoting broader reform in police interrogation procedures. We propose that Congress use its spending power to condition federal funds to police departments on the adoption of uniform, minimum protections for both police and civilian suspects facing interrogations. 

Continue reading

June 4, 2018 | Permalink | Comments (0)

Scott on Mutual Intoxication and Sexual Assault

Michael Scott (Ministry of the Attorney General) has posted Jake and Josie Get Drunk and Hook Up: An Exploration of Mutual Intoxication and Sexual Assault (Alberta Law Review, Vol. 54, No. 4, 2017) on SSRN. Here is the abstract:
 
In R. v. Daviault, the Supreme Court of Canada recognized a defence of extreme intoxication to general intent offences, including sexual assault. In the aftermath of Daviault, Parliament swiftly enacted section 33.1 of the Criminal Code. While the lower courts are divided on the constitutionality of section 33.1, its operation precludes a defence of extreme intoxication for some general intent offences. Thus, intoxication can prevent the complainant from giving valid consent, but cannot prevent the accused from forming the necessary intent. How should criminal liability be determined where two individuals become voluntarily intoxicated to the point of incapacity and engage in sex? In theory, the criminal law is committed to the protection of the bodily integrity of all individuals and to the punishment of only the morally blameworthy. However, this article argues that the law’s treatment of mutual voluntary intoxication violates these core principles of our justice system.

June 4, 2018 | Permalink | Comments (0)

Robinson on Intoxicated Conduct

Paul H. Robinson (University of Pennsylvania Law School) has posted A Brief Summary and Critique of Criminal Liability Rules for Intoxicated Conduct (Journal of Criminal Law (British), Forthcoming) on SSRN. Here is the abstract:
 
This essay provides an overview of the legal issues relating to intoxication, including the effect of voluntary intoxication in imputing to an offender a required offense culpable state of mind that he may not actually have had at the time of the offense; the effect of involuntary intoxication in providing a defense by negating a required offense culpability element or by satisfying the conditions of a general excuse; the legal effect of alcoholism or addiction in rendering intoxication involuntary; and the limitation on using alcoholism or addiction in this way if the offender can be judged to be reasonably responsible for creating his own addiction. It notes some of the differences between the US and UK approaches on some issues.

June 4, 2018 | Permalink | Comments (0)

Kaye on Forensic Scientists and Factfinders

Kaye davidDavid H. Kaye (Pennsylvania State University, Penn State Law) has posted The Nikumaroro Bones: How Can Forensic Scientists Assist Factfinders? (Virginia Journal of Criminal Law, Volume 6, 2018) on SSRN. Here is the abstract: 
 
Criminalistics compare traces of unknown origin from crime scenes to traces from specimens of known origin to help determine whether the two specimens have a common origin. They typically testify by giving a firm opinion as to whether a suspect is or is not the source of the trace. This Article describes an alternative to source attribution that has a strong following among students of inference in forensic science. It can be called an evidentiary-value approach that uses relative “likelihoods” or “support” to indicate the weight or probative value of evidence. Essentially, it consists of describing the noteworthy features being compared and explaining how strongly the observations of these features support competing conclusions. To underscore and clarify the differences between the traditional, conclusion-centric approach and the newer evidence-centric perspective, the article uses a recent analysis of data from bones that might be those of the celebrated aviator, Amelia Earhardt, to distinguish between data from the specimens, inferences from the data (conclusions), and statements about the probativity of the data with respect to those inferences
 

June 4, 2018 | Permalink | Comments (0)

Rap & Daniella on Child Suspects

Stephanie Rap and Zlotnik Daniella (Department of Child Law, Leiden Law School and Independent) have posted The Right to Legal and Other Appropriate Assistance for Child Suspects and Accused. Reflections on the Directive on Procedural Safeguards for Children Who are Suspects or Accused Persons in Criminal Proceedings (European Journal of Crime, Criminal Law and Criminal Justice, 26, 110-131, Forthcoming) on SSRN. Here is the abstract:
 
In this article the development and background of the Directive on procedural safeguards for children who are suspects or accused persons in criminal proceedings is sketched out. Two key rights are reflected upon: the right to legal assistance and the right to other appropriate assistance. The main challenge with regard to the implementation of the right to legal assistance is the possibility of member states to derogate from this right on the basis of the circumstances of the particular criminal case(s) involving the child. The right to legal assistance is contingent upon the proportionality clause that has been built in the Directive and therefore legal assistance is not guaranteed for every child suspect or accused. The right to other appropriate assistance is given separate attention in the Directive, which strengthens the child’s legal position and his support during the proceedings.

June 4, 2018 | Permalink | Comments (0)

Nevitt on Fidell on Military Justice

Mark Nevitt has posted Military Justice: a Very Short Introduction (Book Review) (Journal of National Security Law & Policy, Vol. 10, 2018 Forthcoming) on SSRN. Here is the abstract:
 
This short essay reviews Professor Eugene Fidell’s recently published book, “Military Justice A Very Short Introduction” (Oxford Press). This book is a welcome addition to military law and military justice literature more generally. Eugene Fidell, a professor at Yale Law School, brings a tremendous breadth of experience as both a scholar and military justice practitioner. He also possesses a keen observational and critical eye to the subject of military justice practiced here and abroad.

The book review first provides an overview of Professor Fidell’s book, its organizational set-up, and where it sits in the broader context of military justice literature.

Continue reading

June 4, 2018 | Permalink | Comments (0)