CrimProf Blog

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

Friday, August 4, 2017

Kozinski on The Reid Interrogation Technique

Wyatt Kozinski (University of Virginia - School of Law, Alumnus or Degree Candidate Author) has posted The Reid Interrogation Technique and False Confessions: A Time for Change (Seattle Journal for Social Justice, Forthcoming) on SSRN. Here is the abstract:
 
The Reid Interrogation technique has been the dominant method used by police in the United States and Canada to interview suspects of crime. This method is commercially marketed to police departments and other law enforcement agencies with the promise that 80 percent of those interrogated will confess. However, there is growing evidence that the Reid technique results in a significant number of false confessions, especially among the young, the mentally impaired and those of low intelligence. Other countries, especially England have rejected the Reid technique in favor of other methods that work equally well in obtaining confessions but without the risk of false confessions. In the United States, too, there is growing suspicion of the Reid technique and other hard interrogation tactics such as those employed in interrogating suspected terrorists at Guantanamo and Abu Ghraib.

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August 4, 2017 | Permalink | Comments (0)

Trocino & Meyer on The Florida Death Penalty

Craig Trocino and Chance Meyer (University of Miami - School of Law and Nova Southeastern University, Shepard Broad College of Law) have posted Hurst v. Florida's Ha'p'orth of Tar: The Need to Revisit Caldwell, Clemons, and Proffitt (University of Miami Law Review, Vol. 70, No. 4, 2016) on SSRN. Here is the abstract:
 
In Hurst v. Florida, the Supreme Court held Florida’s death penalty scheme violated the Sixth Amendment because judges, rather than juries, found sentencing facts necessary to impose death. That Sixth Amendment ruling has implications for Florida’s Eighth Amendment jurisprudence. Repairs to Florida’s Eighth Amendment jurisprudence should be made in the immediate aftermath of Hurst, while the finality of pre-Hurst death sentences already must be disturbed to satisfy the Sixth Amendment.

August 4, 2017 | Permalink | Comments (0)

Husak on Drug Proscriptions as Proxy Crimes

Husak douglasDouglas Husak (Rutgers, The State University of New Jersey - Department of Philosophy) has posted Drug Proscriptions As Proxy Crimes on SSRN. Here is the abstract:
 
Our drug policy has been widely deemed a failure because the criminalization of drug use has not succeeded in reducing prevalence rates. I contend that the most promising basis to defend the justifiability of drug offenses is to construe them as proxy crimes: offenses designed to prevent the commission of other, more serious crimes. I make a case that many law enforcement officials use drug proscriptions for this purpose in the real world. When construed as proxy crimes, drug prohibitions are less vulnerable to some of the familiar objections brought against their legitimacy. Nonetheless, the justification for punishing those who violate drug proscriptions remains unpersuasive.

August 4, 2017 | Permalink | Comments (0)

Meyer on Hall v. Florida

Chance Meyer (Nova Southeastern University, Shepard Broad College of Law) has posted The Newly Informed Decency of Death: Hall V. Florida Endorses the Marshall Hypothesis in Eighth Amendment Review of the Death Penalty (Stetson Law Review, Vol. 45, No. 2, 2016) on SSRN. Here is the abstract:
 
The Supreme Court has long determined what criminal punishments violate the Eighth Amendment by asking whether they fall short of the American people’s standard of decency. And it has relied mostly on state legislation to reflect what people think is decent. In 1972, Justice Marshall suggested the Court should factor expert knowledge of the actual workings of death penalty systems into its analysis. I refer to this approach as “informed decency.” Marshall believed doing so would make death unconstitutional, because the American people would reject it if better informed. This has come to be known as “the Marshall Hypothesis.” Some forty years later, in Hall v. Florida, the Court finally did something akin to what Marshall suggested, with regard to a particular feature of the death penalty. The Court relied on the knowledge of professional psychological organizations to find unconstitutional the manner in which Florida determined ineligibility for the death penalty based on intellectual disability. If such an informed decency is adopted on a larger scale, and applied to the death penalty itself, current views of experts in science and law would provide strong evidence to find the death penalty violates the American standard of decency and, as a result, the Eighth Amendment.

August 4, 2017 | Permalink | Comments (1)

Roach on Correcting Miscarriages of Justice

Kent Roach (University of Toronto - Faculty of Law) has posted Exceptional Procedures to Correct Miscarriages of Justice in Common Law Systems on SSRN. Here is the abstract:
 
This paper examines exceptional procedures to correct miscarriages of justice in the common law world. The first and most studied exceptional procedure is the Criminal Cases Review Commission (CCRC). Although the CCRC has been a success in terms of referring over 600 convictions and sentences back to the appeal court, with about 66% of them being overturned, it also rejects over 95% of applications to it. Not surprisingly, it has engendered controversy. One interesting modification of the CCRC idea is North Carolina’s Innocence Inquiry Commission (NCIIC). This commission, created in 2006 reflects the focus in the United States on factual innocence, something that is not required with respect to the CCRC or other exceptional procedures in the common law world. Other models that will be examined in this chapter include a Scottish commission similar to the CCRC, the creation of a second right of appeal based on “fresh and compelling evidence” in two Australian states, and Canada’s 2002 reform of a system that allows the political executive to grant relief on applications for mercy and clemency. The lack of consensus about exceptional procedures facilitates discussion of how the criminal process ought to respond to exceptional demands to re-open convictions and the implications in terms of values and incentives for the procedural and substantive choices that are made. In short, we are in an era of experimentation and innovation that demands comparative analysis.

August 4, 2017 | Permalink | Comments (0)

Thursday, August 3, 2017

Baker on Rape and Discrimination

Baker katherineKatharine K. Baker (Chicago-Kent College of Law - Illinois Institute of Technology) has posted Why Rape Should Not (Always) Be a Crime (100 Minnesota Law Review, 221 (2015)) on SSRN. Here is the abstract:
 
This article advances a novel and controversial argument, that the criminal law is simply not up to the task of policing sexual assault and has undermined the very anti-rape norms that reformers intended that law to cultivate. The on-going initiative to curb the prevalence of sexual misconduct on college campuses abandons the criminal law and uses discrimination doctrine to dislodge the norms that criminal rape reform tried, but failed, to transform. It is necessary because the rape reform movements of the 1970s and 80s asked too much of the criminal law. Rape reformers tried to make a woman’s willingness to have sex – her consent – the centerpiece of the rape inquiry. They wanted to upend a norm that validated men’s sense of entitlement to sex. While these efforts to shift norms may have gotten the theory of rape right, they failed to appreciate inherent limitations in the criminal process.

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August 3, 2017 | Permalink | Comments (0)

Rushin & Carroll on Bathroom Laws as Status Crimes

Stephen Rushin and Jenny E. Carroll (Loyola University Chicago Law and University of Alabama - School of Law) have posted Bathroom Laws As Status Crimes (Fordham Law Review, Vol. 86, No. 1, 2017) on SSRN. Here is the abstract:
 
A growing number of American jurisdictions have considered laws that prohibit trans individuals from using bathroom facilities consistent with their gender identities. Several scholars have criticized these so-called “bathroom laws” as a form of discrimination in violation of federal law. Few scholars, though, have considered the criminal justice implications of these proposals.

By analyzing dozens of proposed bathroom laws, this Article explores how many laws do more than stigmatize the trans community—they effectively criminalize them. Some of these proposed laws would establish new categories of criminal offenses for trans individuals who use bathrooms consistent with their gender identity. Others would transform bathroom use by trans individuals into an unlawful trespass. The existing literature suggests that the criminal justice system is unprepared to handle this newfound responsibility.

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August 3, 2017 | Permalink | Comments (0)

Wednesday, August 2, 2017

"Another Federal Court Says No Warrants Needed To Obtain Historic Cell Site Location Info"

From Techdirt, via the NACDL news scan:

So far, there's not a single court in the nation that's found historic CSLI to have an expectation of privacy. The Fourth Circuit Appeals Court briefly did, before reversing its own decision. The original decision had problems with the amount of CSLI gathered: 221 days worth. Upon further review, the court sided with the government and its Third Party Doctrine arguments.

August 2, 2017 | Permalink | Comments (0)

"Former Arizona sheriff found guilty of criminal contempt"

From Jurist:

A judge for the US District Court for the District of Arizona [official website] found former Arizona Sheriff Joe Arpaio guilty [order, PDF] of criminal contempt on Monday. The court found Arpaio did not comply with a court order to stop detaining Latinos based solely on their immigration status. The matter was presented before Judge Susan Bolton, a senior federal judge with the District Court for the District of Arizona. Bolton found that Arpaio, "willfully violated the order by failing to do anything to ensure his subordinates' compliance and by directing them to continue to detain persons for whom no criminal charges could be filed." Counsel for Arpaio said that they believe a jury would have found in Arpaio's favor and said they intend to appeal the matter.

August 2, 2017 | Permalink | Comments (0)

Mauser on Guns and Violence

Gary A. Mauser (Simon Fraser University (SFU) - Beedie School of Business) has posted Do Triggers Pull Fingers? A Look at the Criminal Misuse of Guns in Canada on SSRN. Here is the abstract:
 
Advocates of restrictive gun laws contend that simply having a firearm available can precipitate violence, transforming an angry encounter into murder, or a fit of depression into an impulsive suicide. In other words: triggers pull fingers. Supporters of civilian gun ownership, on the other hand, argue that, while criminals should not have firearms, guns are a positive social force in the hands of solid citizens. Firearms are even said to be indispensable for protection and for keeping the peace.

This paper examines the available Canadian statistics on criminal misuse of firearms, searching for connections between criminal violence and civilian firearms owners. First, the paper provides a brief review of current firearms laws in Canada. Next, civilian firearms owners and criminals who misuse firearms are compared. In order to probe behind the published statistics, a number of Special Requests to Statistics Canada are reported on.

August 2, 2017 | Permalink | Comments (0)

Tuesday, August 1, 2017

"False memories and false confessions: the psychology of imagined crimes"

From Wired, via the NACDL news scan:

In 1995 - the year Franklin's case ended - Loftus tested out her theory experimentally. Working with graduate student Jacqueline Pickrell, she recruited 24 participants and gave each of them booklets containing details of four experiences they'd had between the ages of four and six. Researchers contacted each participant's parents for details of three true stories. The fourth story, however, was false: it involved an imaginary incident where the subject got lost in a shopping centre as a child, was rescued by a stranger and returned to their parents.

To make it believable, Loftus asked the participants' parents for details that could have been true - such as the name of a local shopping centre that actually existed when the participants were young. They were asked to think about the four memories and write down as many details as they recalled. When interviewed about their recollections, some began to share how they'd felt, and even what their rescuer was wearing - despite the fact that it was all untrue. "It was groundbreaking, because it showed that we can implant false memories of entire experiences. That's something we hadn't done before in the lab," says Shaw.

August 1, 2017 | Permalink | Comments (1)

"Border Agents Test Facial Scans to Track Those Overstaying Visas"

From The New York Times. In part:

Both Democratic and Republican administrations have long viewed a biometric exit system as preferable to paper documents to ensure border security, but for years the technology to collect that information was slow to take hold. Now devices that gather biometric information, from smartphones to security systems, are in widespread use.

. . . .

But the biometric exit system has come under criticism from privacy rights groups, who say the facial recognition scans, while ostensibly set up to make sure foreign visitors leave the country, are an invasive form of surveillance of American citizens. Harrison Rudolph, a fellow at the Center on Privacy & Technology at Georgetown University Law School, raised issues about the accuracy of facial recognition scans and said the agency had not laid out clear guidelines on how the system was to be used.

August 1, 2017 | Permalink | Comments (0)

Turner on Regulating Interrogations and Excluding Confessions

Turner jeniaJenia Iontcheva Turner (Southern Methodist University - Dedman School of Law) has posted Regulating Interrogations and Excluding Confessions in the United States: Balancing Individual Rights and the Search for Truth (Securing a Fair Trial Through Exclusionary Rules? A Comparative Perspective (Sabine Gless and Thomas Richter, eds.) (Forthcoming)) on SSRN. Here is the abstract:
 
Like other criminal justice systems, the U.S. system must balance, on the one hand, enforcing the criminal law and, on the other, protecting individual rights in the process. Reliable fact-finding is a prerequisite to the effective enforcement of criminal law and to just outcomes. Protection of individual rights often promotes reliable fact-finding, as when a ban on involuntary confessions prevents the introduction of unreliable testimony at trial. On occasion, however, the commitment to accurate fact-finding may conflict with individual rights in a particular case. One of the clearest examples of such a conflict occurs when a court must decide whether to admit reliable and probative evidence obtained in violation of constitutional rights. 

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August 1, 2017 | Permalink | Comments (0)

Roach on Prosecutors and Wrongful Convictions

Roach kentKent Roach (University of Toronto - Faculty of Law) has posted Prosecutors and Wrongful Convictions (In Benjamin Berger, Emma Cunliffe and James Stribopoulos eds. To Ensure that Justice is Done: Essays in Memory of Marc Rosenberg (Toronto: Thomson Reuters, Forthcoming)) on SSRN. Here is the abstract:
 
The first part of this chapter examines the prosecutorial role in wrongful convictions with special attention to guilty plea wrongful convictions. Such wrongful convictions are only recently being recognized as a problem. There is still some victim blaming of innocent accused who make rational or irrational decisions to pled guilty. Justice Rosenberg’s 2008 decision in Hanemaayer was pioneering in its recognition of the guilty plea wrongful conviction, its willingness to admit error and correct injustice and its compassionate approach to an innocent accused who pled guilty. The available evidence suggests that while prosecutors play a direct role in some wrongful convictions, they more frequently play an indirect role. 

The second part provides a taxonomy of strategies to employ to improve prosecutorial behavior in correcting and preventing wrongful convictions.

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August 1, 2017 | Permalink | Comments (0)

Monday, July 31, 2017

"New Mexico Supreme Court weighs action on defender workload"

From the A.P., via the NACDL news scan:

Justices of the New Mexico Supreme Court prodded prosecutors and public defenders Wednesday for possible ways to ease pressure on defense attorneys in the state who have complained of being overwhelmed by crushing caseloads of poor clients that they say hinders their ability to provide effective representation.

Public defenders last year declined to represent or withdrew their representation of hundreds of indigent criminal defendants facing jail time in the southeastern corner of the state, only to be rebuffed by a district court judge who said they were doing reasonably good work.

July 31, 2017 | Permalink | Comments (0)

Fan on Missing Body Camera Video

Fan maryMary D. Fan (University of Washington - School of Law) has posted Missing Body Camera Videos: Evidentiary Fairness Beyond Blame (Forthcoming, Ga. L. Rev., Vol. 52, No. 1, 2017) on SSRN. Here is the abstract:
 
Responding to calls for accountability, transparency and better evidence, police departments have rapidly adopted body cameras. Recording policies require the police to record more law enforcement encounters than ever before. But what happens if officers do not record? This is an important growing area of controversy. Based on the collection and coding of police department body camera policies, this article reveals widespread detection and enforcement gaps regarding failures to record as required. More than half of the major-city departments in the sample have no provisions on consequences for not recording as required — and several have protections against discipline. 

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July 31, 2017 | Permalink | Comments (0)

Sunday, July 30, 2017

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

What Happened to the American Jury? Proposals for Revamping Plea Bargaining and Summary Judgment

University of Illinois College of Law
159
2.

A Holistic Framework to Aid Responsible Plea-Bargaining By Prosecutors

Independent
128
3.

Measuring the Creative Plea Bargain

University of Maine School of Law
113
4.

Democratizing Criminal Justice Through Contestation and Resistance

Brooklyn Law School
110
5.

Plea Agreements As Constitutional Contracts

University of South Carolina School of Law
100
6.

Do Muddy Waters Shift Burdens?

University of Wisconsin Law School, Frank J. Remington Center and Arizona State University, Sandra Day O'Connor Coll
87
7.

Henry J. Friendly: Designed to Be a Great Federal Judge

Liberty University School of Law
84
8.

The Jury Sunshine Project: Jury Selection Data as a Political Issue

Wake Forest University - School of Law, Wake Forest University Law School and Wake Forest University - School of Law
81
9.

Defense Counsel and Public Defense

University of Michigan Law School
77
10.

Public Trust and Police Deception

University of Connecticut School of Law
75

July 30, 2017 | Permalink | Comments (0)

Saturday, July 29, 2017

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Dynamic Rationality

Brigham Young University J. Reuben Clark Law School
181
2.

The Responsibility Gap in Corporate Crime

Duke University School of Law
125
3.

Democratizing Criminal Justice Through Contestation and Resistance

Brooklyn Law School
110
4.

Kinds of Punishment

Rutgers, The State University of New Jersey - Department of Philosophy
106
5.

The Law of Time Travel

New York University School of Law
103
6.

Should Domestic Violence Be Decriminalized?

University of Maryland Francis King Carey School of Law
100
7.

Equal Moral Membership: Naz Foundation and the Refashioning of Equality

Yale University - Law School
96
8.

Public Trust and Police Deception

University of Connecticut School of Law
75
9.

An Honest Politician's Guide to Deterrence: Certainty, Severity, Celerity, and Parsimony

University of Minnesota - Twin Cities - School of Law
73
10.

Law & Neuroscience: What, Why, and Where to Begin

Vanderbilt University - Law School & Dept. of Biological Sciences and University of Minnesota Law School

July 29, 2017 | Permalink | Comments (0)

Friday, July 28, 2017

"Federal appeals court blocks DC concealed carry law"

From Jurist:

The US Court of Appeals for the District of Columbia Circuit [official website] on Tuesday rejected [text, PDF] a DC legal restriction that required an applicant to have "good reason to fear for their person or property" in order to acquire a concealed carry permit. The law was blocked by a 2-1 vote. The opinion stated that the "good reason" law is equivalent to a total ban on an enumerated right. According to the decision, "the Second Amendment's core lies the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions." The court remanded the case with the instructions to order a permanent injunction on the law.

July 28, 2017 | Permalink | Comments (0)

Ormerod & Trautman on Third-Party Doctrine in the Digital Age

Peter C. Ormerod and Lawrence J. Trautman (Western Carolina University and Western Carolina University) have posted A Descriptive Analysis of the Fourth Amendment and the Third-Party Doctrine in the Digital Age on SSRN. Here is the abstract:
 
There are few areas of constitutional law that raise scholars’ ire and trouble jurists like the Fourth Amendment’s third-party doctrine. Making sense of the Court’s distinctions between content and metadata and between personal communications and business records was already difficult with physical documents and analog technologies. But the proliferation of digital technologies has rendered obsolete the factual predicates underpinning those distinctions, and courts have struggled mightily with adapting third-party rules forged over thirty years ago to new technologies.

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July 28, 2017 | Permalink | Comments (0)