Wednesday, February 8, 2017
Deborah Davis and Elizabeth F. Loftus (University of Nevada, Reno and University of California, Irvine - Department of Psychology and Social Behavior) have posted Remembering Disputed Sexual Encounters: A New Frontier for Witness Memory Research (Journal of Criminal Law and Criminology, Vol. 105, No. 4, 2015) on SSRN. Here is the abstract:
This paper reviews sources of distortion in memory for sexual encounters, particularly those between intoxicated participants. We review factors leading to initial misinterpretations of sexual consent including the indirect nature of sexual consent communications, misleading cultural sexual scripts, misinterpretation of passivity, and others. In this context, we consider the way in which alcohol can both contribute to initial misunderstanding and promote specific distortions in memory over time. Finally, we discuss additional influences on memory, including motivations related to self-esteem, self-concept maintenance, or litigation, and the effects of social influence from sources such as friends, forensic interviewers or therapists.
Tuesday, February 7, 2017
"Nation's Criminal Defense Bar Welcomes Passage by House of Representatives of the Email Privacy Act"
From the NACDL website:
Washington, DC (Feb. 6, 2017) – Today, the House of Representatives passed the Email Privacy Act (H.R. 387). This bill is a long overdue update of the Electronic Communications Privacy Act (ECPA), a bill passed in 1986 that governs the treatment of electronic communications. The Email Privacy Act establishes that law enforcement officers must obtain a warrant to access the content of most electronic communications and cloud-stored content from third-party providers and eliminates the arbitrary rule that would allow the government to obtain emails older than 180 days with a subpoena. The bill passed overwhelmingly in the last Congress 419-0.
The National Association of Criminal Defense Lawyers (NACDL) is heartened that the House of Representatives has strengthened the Fourth Amendment protections by ensuring that the government must obtain a warrant based on probable cause to access email content and other electronic communications and content stored in the cloud. NACDL remains concerned, however, that the bill as amended removes the requirement for law enforcement to provide notice to an individual that their electronic communications and documents stored online, such as emails, texts, photos, and notes, among others, have been obtained from their provider and provides no remedy to those whose communications may have been obtained improperly.
Orin Kerr has this post at The Volokh Conspiracy. In part:
Although I think the Second Circuit’s opinion is deeply flawed — the more I think of it, the more I think my argument in this post has to be correct — I don’t think the reasoning of this decision works. The issue in this case is statutory, not constitutional. Even if you accept the (wrong) framing of the issue as being whether the SCA applies outside the United States, the answer has to come from what Congress focused on, not where the constitutional privacy interest may or may not be.
. . .
Even accepting the court’s framing, I don’t think it’s right that no seizure occurred abroad. As I see it, copying Fourth Amendment-protected files seizes them under the Fourth Amendment “when copying occurs without human observation and interrupts the stream of possession or transmission” (Orin S. Kerr, Fourth Amendment Seizures of Computer Data, 119 Yale L.J. 700, 700 (2010)). That test is satisfied here when the information was copied.
From The New York Times:
The unusual proclamation by Judge Randy Stoker of the Fifth District of Idaho that abstinence would be a condition of probation appears to be based at least partly on an archaic, rarely enforced state law that forbids premarital sex.
But unless the law is successfully challenged, a consensual sexual encounter could prompt a prison stay for Cody Herrera, who was 18 when he sexually assaulted a 14-year-old girl.
Louisiana Governor John Bel Edwards [official website] was sued [complaint, PDF] on Monday over the public defender system over allegations it denies effective representation to the poor [press release]. Edwards was sued by the Southern Poverty Law Center [advocacy website] and the Lawyers' Committee for Civil Rights Under Law on behalf of 13 criminal defendants in a suit that is also seeking class action status for non-capital crime defendants. The lawsuit claims that defendants with a low economic status are forced to wait months in jail to meet a public defender who is over worked and under funded. Furthermore, the lawsuit claims that without appropriate counsel, defendants are being encouraged to plead guilty rather than receive their day in court. The lawsuit details instances where defendants were arrested over half a year ago and have met with their attorney once over that time and have been left in the dark regarding their case.
Larry Alexander (University of San Diego School of Law) has posted The Need to Attend to Probabilities (for Purposes of Self-Defense and Other Preemptive Actions) on SSRN. Here is the abstract:
In this short essay I ask what must someone acting in defense of others believe and with what level of credence in order not to be culpable for so acting. I focus on defense of others to avoid the issue of excuse, as the defender of others is not acting out of fear for his own safety, a fear that might excuse the defensive acts of the victim of the feared attack. I focus on beliefs and levels of credence because no defender can know for certain the factors relevant to permissible defensive actions.
Guillermo Jose Garcia Sanchez (Harvard University, Law School, Students) has posted A New International Legal Regime for a New Reality in the War Against Drugs (58 Harv. Int'L L. J. Online 39 (2017)) on SSRN. Here is the abstract:
The paper reviews the existing international legal regime on the war against drugs and argues that it has become obsolete in the face of the trend to legalize the consumption of certain drugs, such as marijuana, in developed nations. It particularly analyzes the contradictory practice of the United States to pressure producing states, such as Mexico and Colombia, to enforce the regime and at the same time allow the legalization of consumption in local U.S. states.
Monday, February 6, 2017
Michael Radelet and G. Ben Cohen (University of Colorado at Boulder - Institute of Behavioral Sciences and affiliation not provided to SSRN) have posted The Predictable Disarray: Ignoring the Jury in Florida Death Penalty Cases on SSRN. Here is the abstract:
Both the United States Supreme Court, and the Florida Supreme Court have now made it clear that the Florida death penalty statutes that have been in use over the past 45 years are unconstitutional. This result has been predicted since the original adoption of the statutes, and made clear by the Supreme Court's decisions in Sullivan v. Louisiana, Apprendi v. New Jersey, and Ring v. Arizona. How the courts address the 393 prisoners currently on Florida's death row, sentenced to death under an unconstitutional statute, is yet to be determined. This paper reviews the history of the Florida death penalty statutes and provides a census of cases in Florida.
Amy Baron-Evans and David Patton (Federal Public and Community Defenders and Federal Defenders of New York) have posted A Response to Judge Pryor's Proposal to 'Fix' the Federal Sentencing Guidelines: A Curse Worse than the Disease (Federal Sentencing Reporter, Forthcoming) on SSRN. Here is the abstract:
Eleventh Circuit Judge and United States Sentencing Commissioner, William H. Pryor, Jr., has proposed legislation to improve federal sentencing procedure in the wake of the Supreme Court's 2005 decision in United States v. Booker. He asserts that his plan would address the problems of complexity, disparity, and (to a limited extent) severity. His proposed framework would return the federal system to a version of the pre-Booker mandatory guidelines with strict appellate review of Commission-controlled departures. Unlike the pre-Booker regime, the new system would include fewer and wider ranges based on a few facts, and a requirement that aggravating facts be charged in an indictment and proved to a jury beyond a reasonable doubt or admitted by the defendant. To avoid an unconstitutional delegation of legislative authority to define elements of crimes, the aggravating elements would be enacted by Congress. According to Judge Pryor, the statutory mandatory guidelines system would eliminate the need for statutory mandatory minimums except for “egregious offenses.” Judge Pryor said that “at least for now,” the proposal was solely his, and not the official position of the Sentencing Commission.
Sunday, February 5, 2017
From Nashville Scene:
Facing an Unmanageable Workload, the Public Defender’s Office is Now Limiting the Cases it Takes
With his attorneys, and the public defender’s office in general, now tied up in the case, attorneys from Bass, Berry & Sims — one of Nashville’s most prominent private firms — were brought in to argue the motion on his behalf. They put the blame for Hernandez’s predicament squarely on the state. Typically, when speedy-trial claims are being evaluated, the court does not count delays initiated by the defense against the state. But in this case, the attorneys argued, citing previous case law, it was the state itself — which was prosecuting Hernandez but also obligated by the Constitution to provide for his defense — that was on the hook.
“Tennessee’s affirmative decision to inadequately fund the Metro Public Defender’s Office has not only created an unmanageable caseload for the public defenders, but has also forced both Mr. Hernandez’s attorney and this Court to make the unconscionable decision of whether Mr. Hernandez is entitled to a right to counsel or a right to a speedy trial,” the attorneys wrote in a filing with the court. “Under the circumstances, he cannot receive both.”
Brooklyn Law School
Date posted to database: 5 Dec 2016
|2||224||Law and Moral Dilemmas
Bert I. Huang
Columbia Law School
Date posted to database: 9 Jan 2017
University of San Diego School of Law
Date posted to database: 5 Dec 2016
|4||89||From Economic Recession to Legal Opportunity: The Case for Cartel Criminalisation in Europe
University College London, Centre for Law, Economics and Society
Date posted to database: 9 Jan 2017
|5||77||Kriminalomsorgen: A Look at the World's Most Humane Prison System in Norway
Ryan Alexander Berger
Duke University, School of Law, Students
Date posted to database: 11 Dec 2016
|6||69||Punishment and Moral Risk
Adam J. Kolber
Brooklyn Law School
Date posted to database: 10 Jan 2017 [7th last week]
|7||62||Strict Liability's Criminogenic Effect
Paul H. Robinson
University of Pennsylvania Law School
Date posted to database: 7 Jan 2017 [9th last week]
|8||57||Intervening in the Context of White Settler Colonialism: West Coast LEAF, Gender Equality and the Polygamy Reference
University of Lethbridge
Date posted to database: 29 Dec 2016 [10th last week]
|9||56||Reforming and Resisting the Criminal Law: Criminal Justice and the Tragically Hip
University of Toronto - Faculty of Law
Date posted to database: 5 Jan 2017 [8th last week]
|10||49||Rape, Truth, and Hearsay
I. Bennett Capers
Brooklyn Law School
Date posted to database: 9 Jan 2017 [new to top ten]
Saturday, February 4, 2017
From The New York Times:
The federal Bureau of Alcohol, Tobacco, Firearms and Explosives plans to send more agents to Chicago to help curb a surge in violence that claimed more than 750 lives there last year, a spokesman for the bureau’s Chicago field division said on Friday night.
The spokesman, David D. Coulson, said that sending additional personnel to the city, where there were more than 3,500 shootings in 2016, has been “in the works for some time to figure out how to leverage our resources.”
|1||372||Judge Gorsuch and Johnson Resentencing (This is Not a Joke)
Leah M. Litman
University of California, Irvine School of Law
Date posted to database: 24 Jan 2017
Last Revised: 3 Feb 201 [new to top ten]
|2||339||fMRI and Lie Detection
Anthony D. Wagner, Richard J. Bonnie, BJ Casey, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott,Laurence Steinberg, Kim A. Taylor-Thompson and Gideon Yaffe
Stanford University - Psychology, University of Virginia - School of Law, Yale University - Department of Psychology, US Court of Appeals - Fourth Circuit, University of California Hastings College of the Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute, University of Pennsylvania Law School, Washington University School of Medicine, Yale University - Department of Psychology, Columbia University - Law School, Temple University, New York University School of Law and Yale Law School
Date posted to database: 23 Dec 2016 [1st last week]
Brooklyn Law School
Date posted to database: 5 Dec 2016 [2nd last week]
|4||168||In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes
Date posted to database: 10 Jan 2017 [3rd last week]
|5||117||The Structure of Federal Public Defense: A Call for Independence
Federal Defenders of New York
Date posted to database: 19 Dec 2016 [4th last week]
|6||100||Adversarial Asymmetry in the Criminal Process
Washington University in Saint Louis - School of Law
Date posted to database: 1 Dec 2016 [5th last week]
|7||96||When Interviewing Children: A Review and Update
Karen J. Saywitz, Thomas D. Lyonand Gail S. Goodman
University of California, Los Angeles (UCLA), University of Southern California - Gould School of Law and University of California, Davis
Date posted to database: 5 Jan 2017 [8th last week]
|8||89||The American Bar Association's Criminal Justice Mental Health Standards: Revisions for the Twenty-First Century
Vanderbilt University - Law School
Date posted to database: 15 Dec 2016 [7th last week]
|9||82||Apple and the American Revolution: Remembering Why We Have the Fourth Amendment
Clark D. Cunningham
Georgia State University College of Law
Date posted to database: 6 Dec 2016 [10th last week]
Brandon L. Garrett
University of Virginia School of Law
Date posted to database: 23 Jan 2017 [new to top ten]
Friday, February 3, 2017
Stefan Voigt and Alexander J. Wulf (University of Hamburg - Institute of Law & Economics and SRH Hochschule Berlin and Institute of Law and Economics, University of Hamburg) have posted What Makes Prosecutors Independent? - Analyzing the Determinants of the Independence of Prosecutors on SSRN. Here is the abstract:
The prosecution of criminal suspects is an integral part of a country's justice system. While substantial scholarly attention has been devoted to the study of the police and judges and their relevance to the rule of law, surprisingly little is known about prosecutors. The aim of this paper is to contribute towards filling this knowledge gap. We first demonstrate the rising importance of prosecutors for criminal justice systems around the world. We identify the independence of prosecution agencies from the other two branches of government as a centrally important characteristic and then proceed to analyze the determinants of de facto prosecutorial independence from a political economy perspective. We find that press freedom, the immunity of parliamentarians and belonging to the common law tradition are positively associated with higher de facto independence.
Elizabeth C. Ahern, Stacia N. Stolzenberg, Kelly McWilliams and Thomas D. Lyon (University of Cambridge, Arizona State University (ASU) - School of Criminology & Criminal Justice, USC Gould School of Law and University of Southern California - Gould School of Law) have posted The Effects of Secret Instructions and Yes/No Questions on Maltreated and Nonmaltreated Children's Reports of a Minor Transgression (Forthcoming in Behavioral Sciences & the Law) on SSRN. Here is the abstract:
This study examined the effects of secret instructions (distinguishing between good/bad secrets and encouraging disclosure of bad secrets) and yes/no questions (DID: “Did the toy break?” versus DYR: “Do you remember if the toy broke?”) on 262 4- to 9- year old maltreated and nonmaltreated children’s reports of a minor transgression. Over two-thirds of children failed to disclose the transgression in response to free recall (invitations and cued invitations). The secret instruction increased disclosures early in free recall, but was not superior to no instruction when combined with cued invitations. Yes/no questions specifically asking about the transgression elicited disclosures from almost half of the children who had not previously disclosed, and false alarms were rare. DYR questions led to ambiguous responding among a substantial percentage of children, particularly younger children. The findings highlight the difficulties of eliciting transgression disclosures without direct questions.
Thursday, February 2, 2017
From The Baltimore City Paper, via NACDL news scan:
Heads turn when a former cop of nearly 35 years suggests that the government should offer heroin addicts their drugs in a controlled setting rather than arresting and prosecuting them. Yes, Uncle Sam would supply citizens with heroin, folks! That is just one of many ideas Major Neill Franklin, the former Maryland state trooper and Baltimore City police officer, shared at a recent Baltimore Circles Of Voices gathering as he spoke on behalf of Law Enforcement Officers Against Prohibition (LEAP) about ending the drug war. To a veteran public defender, it's music to my ears.
Just as Donald Trump takes office, the "other side" seems to have finally arrived at the reform table of drug policy debate. Some of those who originally "declared" war have begun to adopt a more progressive agenda. Criminal justice reform—be it changing drug policy, ending cash bail, or eliminating sentencing disparities—reaches a tipping point when prosecutors and law enforcement officials come to their senses and join leaders for change. Then, lawmakers start listening. That's why movements like Justice Reinvestment, a national push for smarter, less punitive sentencing for certain offenses, have worked. We still have a way to go toward serious drug reform and the new presidential administration casts doubt over whether any progress will be made in the coming years. So, I'd suggest some tactical maneuvering.
From The New York Times:
Ms. Sweeney offered a decidedly more sinister account and said that shortly before the attack, Ms. Salman and Mr. Mateen had made arrangements for access to the couple’s funds after his death. Ms. Sweeney also said that Ms. Salman had joined Mr. Mateen when he scouted the nightclub.
A crucial component of the defense’s case, which is expected to be heard in Orlando, will be the condition of Ms. Salman’s marriage to Mr. Mateen, her second husband. Mr. Swift said that Mr. Mateen had been “violent and abusive” toward Ms. Salman and had repeatedly threatened her.
In a statement filed with the court, Jacquelyn C. Campbell, a domestic violence expert at Johns Hopkins University in Baltimore, said that an assessment of Ms. Salman after the Pulse attack showed that she had been in “extreme danger” during her marriage to Mr. Mateen. “This means that she scored within the range where 98 percent of the women who scored within this range were killed, or almost killed, by an intimate partner,” Dr. Campbell wrote. Ms. Sweeney dismissed the assessment’s findings.
Andrew Guthrie Ferguson and Richard A. Leo (University of the District of Columbia - David A. Clarke School of Law and University of San Francisco - School of Law) have posted The Miranda App: Metaphor and Machine (Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:
For fifty years, the core problem that gave rise to Miranda – namely, the coercive pressure of custodial interrogation – has remained largely unchanged. This article proposes bringing Miranda into the twenty-first century by developing a “Miranda App” to replace the existing, human Miranda warnings and waiver process with a digital, scripted computer program of videos, text, and comprehension assessments. The Miranda App would provide constitutionally adequate warnings, clarifying answers, contextual information, and age-appropriate instruction to suspects before interrogation. Designed by legal scholars, validated by social science experts, and tested by police, the Miranda App would address several decades of unsatisfactory Miranda process. The goal is not simply to invent a better process for informing suspects of their Miranda rights, but to use the design process itself to study what has failed in past practice. In the article, the authors summarize the problems with Miranda doctrine and practice and describe the Miranda App's design components. The article explains how the App will address many of the problems with Miranda practice in law enforcement. By removing the core problem with Miranda -- police control over the administration of warnings and the elicitation of Miranda waiver and non-waivers -- the authors argue that the criminal justice system can improve Miranda practice by bringing it into the digital age.
Teun van Ruitenburg (Erasmus University Rotterdam (EUR) - Department of Criminology, Students) has posted Raising Barriers to ‘Outlaw Motorcycle Gang-Related Events’: Underlining the Difference between Pre-Emption and Prevention (Erasmus Law Review, Vol. 9, No. 3, 2016) on SSRN. Here is the abstract:
Fighting outlaw motorcycle gangs is currently one of the top priorities of many governments around the world. This is due to the notion that outlaw motorcycle gangs do not consist solely of motorcycle enthusiasts. Numerous cases reveal that these clubs, or at least their members, are involved in (organised) crime. In order to tackle these clubs, the former Dutch Minister of Security and Justice announced a whole-of-government strategy towards outlaw motorcycle gangs in 2012. As part of this effort, authorities such as the Dutch National Police, the Public Prosecution Service, the Dutch Tax Authority and local governments aim to cooperate in order to disrupt and restrict outlaw motorcycle gangs by means of Criminal, Administrative and Civil Law. Part of this strategy is to hinder club-related events. This article discusses the latter strategy in light of the distinction between prevention and pre-emption. As the latter two concepts are often used interchangeably, this article attempts to use a more strict division between prevention and pre-emption. Thereby, it becomes apparent that outlaw motorcycle gangs are to some extent governed through uncertainty. The author suggests that maintaining the ‘prevention–pre-emption distinction’ can offer an interesting and valuable point of departure for analysing today’s crime policies.
Wednesday, February 1, 2017
Ioana Vasiu and Lucian Vasiu (Babes-Bolyai University - Faculty of Law and Independent) have posted Light My Fire: A Roentgenogram of Cyberstalking Cases (American Journal of Trial Advocacy, Vol. 40, No. 1, 41-68, 2016) on SSRN. Here is the abstract:
Cyberstalking is a specific form of stalking that involves the use of technology as the means and the medium to instigate psychological violence against another person. Cyberstalking represents a violation of the fundamental human rights to life, liberty, and security, and can amount to a very significant interference with the victims’ privacy, family, or property. Based on the study of about three hundred U.S. court cases, this article presents a comprehensive examination of the main perpetration and litigation aspects involved in cyberstalking cases. Part I, based on the study of cases brought to courts or reported in press releases, notes the essential perpetration aspects of the phenomenon. Part II explains the elements of the federal cyberstalking statute. Part III reports and discusses the main litigation aspects of cyberstalking charges in violation of 18 U.S.C. § 2261A(2). Finally, this article discusses the implications for cyberstalking criminalization, research, and litigation.