CrimProf Blog

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

Monday, June 12, 2017

Shen et al. on Electroencephalography Memory Recognition Evidence

Francis X. Shen, Emily Twedell, Caitlin Opperman, Jordan Dean Scott Krieg, Mikaela Brandt-Fontaine, Joshua Panduro Preston, Jaleh McTeigue, Alina Yasis and Morgan Carlson (University of Minnesota Law School, Shen Neurolaw Lab, University of Minnesota - Twin Cities, School of Law, Students, affiliation not provided to SSRN, affiliation not provided to SSRN, University of Minnesota - Twin Cities, School of Law, Students, affiliation not provided to SSRN, Shen Neurolaw Lab and Independent) have posted The Limited Effect of Electroencephalography Memory Recognition Evidence on Assessments of Defendant Credibility (Journal of Law and the Biosciences (2017)) on SSRN. Here is the abstract:

The admissibility of neuroscientific evidence is becoming an increasingly important issue for American courts. Scholars have suggested that in the context of neuroscientific evidence generally, and brain evidence related to deception in particular, Rule 403 concerns may be particularly salient. Yet despite concerns under Rule 403 about the prejudicial effects of neuroscientific evidence, the scholarly empirical literature on the effects of such evidence is decidedly mixed.

This article reports on new results from a study examining the effect of neuroscientific evidence on subjects’ evaluation of a fictional criminal fact pattern, while manipulating the strength of the non-neuroscientific evidence. By manipulating the strength of the case, we are able to estimate the marginal effect of introducing neuroscientific evidence. We do this in the context of brain-based memory recognition with electroencephalography (EEG) evidence.

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June 12, 2017 | Permalink | Comments (0)

Husak on Kinds of Punishment

Husak douglasDouglas Husak (Rutgers, The State University of New Jersey - Department of Philosophy) has posted Kinds of Punishment on SSRN. Here is the abstract:

Contemporary states execute, imprison, fine, place on probation, conditionally discharge, caution, and do a great deal more to the persons they convict. What general principles govern how retributivists should choose between the foregoing responses to culpable wrongdoing - or select an altogether different type of sanction? If my subsequent reasoning is sound, it is easy to understand why retributivists have tended to neglect this issue. They have neglected it because they have little to contribute to its resolution. In what follows, I will support this conclusion and discuss a few of the somewhat controversial positions on which it rests. I hope to make some headway on this topic by defending what I call the deferential view about kinds of punishment (or deferential view for short).

June 12, 2017 | Permalink | Comments (0)

Coyne & Hall on The Failed War on Drugs

Christopher J. Coyne and Abigail R. Hall (George Mason University - Department of Economics and University of Tampa) have posted Four Decades and Counting: The Continued Failure of the War on Drugs on SSRN. Here is the abstract:

Private individuals and policymakers often utilize prohibition as a means of controlling the sale, manufacture, and consumption of particular goods. While the Eighteenth Amendment, which was passed and subsequently repealed in the early 20th century, is often regarded as the first major prohibition in the United States, it certainly was not the last. The War on Drugs, begun under President Richard Nixon, continues to utilize policies of prohibition to achieve a variety of objectives.

Proponents of drug prohibition claim that such policies reduce drug-related crime, decrease drug-related disease and overdose, and are an effective means of disrupting and dismantling organized criminal enterprises.

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June 12, 2017 | Permalink | Comments (0)

Opinion concluding geriatric release program satisfies AEDPA standard for Graham claims

The Court issued a per curiam opinion in Virginia v. LeBlanc. Justice Ginsburg concurred in the judgment. 

June 12, 2017 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

 

Rank Downloads Paper Title
1 965 Surveying the Law of Emojis
Eric Goldman
Santa Clara University - School of Law
Date posted to database: 1 May 2017 
2 436 Judging Sexual Assault Trials: Systemic Failure in the Case of Regina v Bassam Al-Rawi
Elaine Craig
Dalhousie University - Schulich School of Law
Date posted to database: 12 Apr 2017
3 167 Affirmative Consent, by Way of the Intoxication 'Defense'
Kevin Cole
University of San Diego School of Law
Date posted to database: 18 May 2017 [4th last week]
4 156 Designed to Fail: The President's Deference to the Department of Justice in Advancing Criminal Justice Reform
Rachel E. Barkow and Mark William Osler
New York University School of Law and University of St. Thomas - School of Law (Minnesota)
Date posted to database: 2 May 2017 [5th last week]
5 149 Judicial Resolution of Nonconsensual Pornography Dissemination Cases
Eric Goldman and Angie Jin
Santa Clara University - School of Law and Cornell University - Law School
Date posted to database: 17 Apr 2017 [6th last week]
6 146 Dynamic Rationality
Stephanie Plamondon Bair
Brigham Young University J. Reuben Clark Law School
Date posted to database: 27 May 2017 [10th last week]
7 118 Collateral Consequences of Criminal Conviction
Gabriel "Jack" Chin
University of California, Davis - School of Law
Date posted to database: 11 Apr 2017 [8th last week]
8 104 Is There a Case for Strict Liability?
Larry Alexander
University of San Diego School of Law
Date posted to database: 28 Apr 2017 [9th last week]
9 102 The Problem with Inference for Juvenile Defendants
Jenny E. Carroll
University of Alabama - School of Law
Date posted to database: 21 Apr 2017 [new to top ten]
10 74 Proportional Mens Rea and the Future of Criminal Code Reform
Michael Serota
Independent
Date posted to database: 15 May 2017 [new to top ten]

 

June 12, 2017 | Permalink | Comments (0)

Sunday, June 11, 2017

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 225 The Use of Risk Assessment at Sentencing: Implications for Research and Policy
Jordan M. Hyatt and Steven L. Chanenson
Drexel University and Villanova University School of Law
Date posted to database: 2 May 2017 
2 187 Making Families Pay: The Harmful, Unlawful, and Costly Practice of Charging Juvenile Administrative Fees in California
Stephanie Campos-Bui, Jeffrey Selbin,Hamza Jaka, Tim Kline, Ahmed Lavalais, Alynia Phillips and Abby Ridley-Kerr
University of California, Berkeley - School of Law, University of California, Berkeley - School of Law, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students and University of California, Berkeley, School of Law, Students
Date posted to database: 5 Apr 2017 
3 181 Government Hacking to Light the Dark Web: What Risks to International Relations and International Law?
Orin S. Kerr and Sean D. Murphy
The George Washington University Law School and George Washington University - Law School
Date posted to database: 24 Apr 2017
4 156 Designed to Fail: The President's Deference to the Department of Justice in Advancing Criminal Justice Reform
Rachel E. Barkow and Mark William Osler
New York University School of Law and University of St. Thomas - School of Law (Minnesota)
Date posted to database: 2 May 2017 
5 130 Regulating Inductive Reasoning In Sexual Assault Cases
David M Tanovich
University of Windsor - Faculty of Law
Date posted to database: 11 Apr 2017 
6 118 What Happened to the American Jury? Proposals for Revamping Plea Bargaining and Summary Judgment
Suja A. Thomas
University of Illinois College of Law
Date posted to database: 30 May 2017 [new to top ten]
7 114 Rethinking Federal Diversion: The Rise of Specialized Criminal Courts
Christine S. Scott-Hayward
California State University, Long Beach - School of Criminology, Criminal Justice, and Emergency Management
Date posted to database: 28 Apr 2017 
8 108 The Jury and Empire: The Insular Cases and the Anti-Jury Movement in the Gilded Age and Progressive Era
Andrew Kent
Fordham University School of Law
Date posted to database: 7 Apr 2017 
9 101 The Problem with Inference for Juvenile Defendants
Jenny E. Carroll
University of Alabama - School of Law
Date posted to database: 21 Apr 2017 [new to top ten]
10 99 Upside-Down Juries
Josh Bowers
University of Virginia School of Law
Date posted to database: 12 Apr 2017 [9th last week]

June 11, 2017 | Permalink | Comments (0)

Saturday, June 10, 2017

Landgrave & Nowrasteh on Criminal Immigrants

Michelangelo Landgrave and Alex Nowrasteh (University of California, Riverside and Cato Institute - Center for Global Liberty and Prosperity) have posted Criminal Immigrants: Their Numbers, Demographics, and Countries of Origin (Immigration Research and Policy Brief No. 1) on SSRN. Here is the abstract:

In his first week in office, President Donald Trump issued an executive order directing the Department of Homeland Security to deport most illegal immigrants who come in contact with law enforcement. His order is based on the widespread perception that illegal immigrants are a significant source of crime in the United States. This brief uses American Community Survey data to analyze incarcerated immigrants according to their citizenship and legal status. All immigrants are less likely to be incarcerated than natives relative to their shares of the population. Even illegal immigrants are less likely to be incarcerated than native-born Americans.

June 10, 2017 | Permalink | Comments (0)

Friday, June 9, 2017

Mittal & Sharma on International Framework to Combat Cybercrime

Sandeep Mittal I.P.S. and Prof. Priyanka Sharma (LNJN National Institute of Criminology and Forensic Science and Raksha Shakti University) has posted A Review of International Legal Framework to Combat Cybercrime on SSRN. Here is the abstract:

Cyberspace is under perceived and real threat from various state and non-state actors. This scenario is further complicated by distinct characteristic of cyberspace, manifested in its anonymity in space and time, geographical indeterminacy and non-attribution of acts to a tangible source. The transnational dimension of cybercrime brings forth the issue of sovereignty, jurisdiction, trans-national investigation and extra territorial evidence necessitates international cooperation. This requires and international convention on cybercrime which is missing till date. Council of Europe Convention of Cybercrime is the lone instrument available. Though it is a regional instrument, non-members state like US, Australia, Canada, Israel, Japan etc. have also signed and ratified and remains the most important and acceptable international instruments in global fight to combat cybercrime. In this paper, authors have argued that Council of Europe Convention on Cybercrime should be the baseline for framing an International Convention on Cybercrime.

June 9, 2017 | Permalink | Comments (0)

Appell on Gendered Juvenile Justice

Appell annetteAnnette Ruth Appell (Washington University) has posted Gendered Due Process of Juvenile Justice (Washington University Journal of Law and Policy, Vol. 53, No. 21, 2017) on SSRN. Here is the abstract:

Juvenile courts process, adjudicate, and dispose children and families when children come to the attention of the executive and judicial arms of the state via the child protection system (CP) or the juvenile delinquency system (JJ). Of these two dockets the juveniles on the JJ docket are disproportionately populated by boys; while the parents on the CP docket are disproportionately mothers. Despite their co-location, these two dockets provide different and gendered justice wherein children in the children in the JJ system affords more protection for children and the CP docket provides less protection for the parents. The weight of process communicates the value of the freedom at stake – here: the freedom of the body of the juvenile and the freedom of parents to rear their children.

June 9, 2017 | Permalink | Comments (0)

Wheeler & Kovandzic on Homicide Trends

Andrew Palmer Wheeler and Tomislav Victor Kovandzic (University of Texas at Dallas - School of Economic, Political and Policy Sciences and University of Alabama at Birmingham - Department of Justice Sciences) have posted Monitoring Volatile Homicide Trends Across U.S. Cities on SSRN. Here is the abstract:

The recent increase in the national homicide rate in the United States has generated much speculation about its causes among the media. In this article we show how two data visualization tools, funnel charts and time series fan charts, can show the typical volatility in homicide rates in different cities over time. Many of the recent increases are not out of the norm given historical patterns, and so one need not rely on various ex-ante hypotheses to explain recent homicide spikes occurring in some U.S. cities.

June 9, 2017 | Permalink | Comments (0)

Thursday, June 8, 2017

Brunovskis & Skilbrei on Conditional Assistance of Trafficking Victims

Anette Brunovskis and May-Len Skilbrei (Fafo Research Foundation and University of Oslo) have posted Two Birds with One Stone? Implications of Conditional Assistance in Victim Protection and Prosecution of Traffickers (Anti-Trafficking Review, Issue 6, pp. 13–30, 2016) on SSRN. Here is the abstract:

Protection of victims and prosecution of traffickers are established as core principles in international and national anti-trafficking policies. In this article, we discuss the dilemmas of linking protection of victims (a term that includes social protection) to their cooperation with authorities, using Norway as a case. Our analysis of the Norwegian case is based on interviews with victims of trafficking, social workers, police and prosecutors, and examination of court decisions on cases of trafficking. The linking of protection and prosecution is anchored in international conventions and directives. While this is often framed as a mutual advantage for both protection and prosecution, in reality both goals may suffer. We discuss how the goal of prosecution affects assistance available to different groups of victims. It creates unequal access to assistance and different preconditions for well-being and predictability, depending on how useful their information about traffickers is perceived to be, and police capacity to investigate. We then move on to discuss how the incentive of protection for cooperation is interpreted and dealt with in the justice system. Victims who receive assistance and have a chance of getting permanent residence permits in exchange for their testimonies are considered to be less reliable and credible witnesses. This also brings into question how victims of trafficking are understood and constituted as witnesses. We discuss these issues in light of a broader literature on gender, law and victimhood.

June 8, 2017 | Permalink | Comments (0)

Forcese on Anti-Terrorism Investigations

Craig Forcese (University of Ottawa - Common Law Section) has posted Staying Left of Bang: Reforming Canada's Approach to Anti-Terrorism Investigations on SSRN. Here is the abstract:

This article examines Canada’s approach to anti-terrorism investigations. Specifically, it critiques the tradition of “parallel” investigations run, respectively, by the Royal Canadian Mounted Police and the Canadian Security Intelligence Service. The article examines how this approach places a premium on bureaucratic “deconfliction” that is potentially unwieldy in a dynamic security environment. It examines the legal and operational impetus for “parallel” investigations, and specifically the “intelligence-to-evidence” conundrum. The article then describes how the United Kingdom has addressed similar concerns and reformed its terrorism investigations. Drawing on this UK experience, the article concludes with several suggestions for reform in Canada.

June 8, 2017 | Permalink | Comments (0)

Stoever on Parental Abductions

Stoever janeJane K. Stoever (University of California, Irvine School of Law) has posted Parental Abduction and the State Intervention Paradox (Washington Law Review, Vol. 92, 2017, Forthcoming) on SSRN. Here is the abstract:

For most of America’s history, the common law deemed the family a “private sphere” into which the government did not enter. In recent decades, however, the state has increasingly regulated the family in overprotective and overly punitive ways. Many current state interventions in the family are misdirected, penalizing abuse victims and intervening in undesired ways that create harm while failing to respond to pleas for help.

A prime area in which the state paradoxically remains laissez-faire concerns the phenomenon of parental abduction, a pervasive and devastating problem that has received scant attention due to the socio-legal focus on stranger danger. Law enforcement and civil and criminal justice systems continue to regard a parent’s abduction of a child as a private family matter, and abusive abductors are generally not pursued or penalized despite existing laws and the harm children and left-behind parents suffer. This Article exposes the problem of domestically abusive abductors, utilizes social science data to demonstrate the state’s failure to implement relevant laws, and features a fifty-state survey that reveals areas for reform. The Article seeks to explain discrepancies in state interventions in the family and the state’s bifurcated treatment of the family, particularly surfacing the state’s racialized, gendered, and class-based intervention practices. Solutions are offered that avoid the current hyper-criminalization trend, respond to victimized parents’ and abducted children’s pleas for help, and strive to remedy what many abducted children and left-behind parents experience as the ultimate abuse.

June 8, 2017 | Permalink | Comments (0)

Richardson on Police Use of Force

Richardson l songL. Song Richardson (University of California, Irvine School of Law) has posted Police Use of Force (Academy for Justice, A Report on Scholarship and Criminal Justice Reform, Erik Luna ed., 2017, Forthcoming) on SSRN. Here is the abstract:

Racial disparities in police uses of force persist. Two competing explanations are often given for these disparities. One is that these disparities are justified because police are simply responding to objectively threatening conduct. The other is that these disparities are the result of police racism. While both accounts are accurate some of the time, this chapter illuminates how “racial anxiety” can also enable racial disparities in police uses of force even in the absence of racial animus and even when people of color are acting identically to their white counterparts. The term racial anxiety references how concerns about police racism can influence the behaviors and perceptions of officers and people of color in ways that increase the potential for violence. Consideration of racial anxiety highlights the necessity of transforming policing in order to build community-police trust. Policymakers can aid in this endeavor by supporting programs, initiatives and legislation that will facilitate this transformation.

June 8, 2017 | Permalink | Comments (0)

Wednesday, June 7, 2017

Hendry & King on Civil/Criminal Procedural Hybrids

Jennifer Hendry and Colin King (School of Law, University of Leeds and Sussex Law School) have posted Expediency, Legitimacy, and the Rule of Law: A Systems Perspective on Civil/Criminal Procedural Hybrids (Crim Law and Philos) on SSRN. Here is the abstract:

In recent years an increasing quantity of UK legislation has introduced blended or ‘hybridised’ procedures that blur the previously clear demarcation between civil and criminal legal processes, typically on the grounds of normatively-motivated political expediency. This paper provides a critical perspective on instances of procedural hybridisation in order to illustrate that, first, the reliance upon civil law measures to remedy criminal law infractions can raise human rights issues and, second, that such instrumental criminal justice strategies deliberately circumvent the enhanced procedural protections of the criminal law. By conceptualising the rule of law as a structural coupling between the political and legal systems, and due process rights as necessary and self-imposed limitations upon systemic operations, this paper employs a systems-theoretical approach to critique this balancing act between expediency and principle, and queries the circumstances under which legislation contravening the rule of law can be said to lack legitimacy.

June 7, 2017 | Permalink | Comments (0)

Thomas on Jury Trials

Thomas sujaSuja A. Thomas (University of Illinois College of Law) has posted What Happened to the American Jury? Proposals for Revamping Plea Bargaining and Summary Judgment (Litigation, Vol. 43, No. 3 (Spring 2017)) on SSRN. Here is the abstract:

Plea bargaining and summary judgment have contributed to the disappearance of the jury. This short paper describes the "plea offer," "sentence" and "consensus" requirements -- three seemingly controversial but rational ways to restore the jury in our present system.

June 7, 2017 | Permalink | Comments (0)

Johnson on Measuring Creative Plea Bargains

Johnson theaThea Johnson (University of Maine School of Law) has posted Measuring the Creative Plea Bargain (Indiana Law Journal, Vol. 92, 901 (2017)) on SSRN. Here is the abstract:

A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining. But what is a good deal? And how do defense attorneys secure such deals? Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence. Through empirical research, this Article examines the measure of a good plea and the work that goes into negotiating such a plea. Through in-depth interviews with twenty-five public defenders in four states, I investigate the ways in which collateral consequences impact the negotiation of the plea. What emerges is a picture of creative plea bargaining that takes into account a host of noncriminal sanctions that fall outside of the charge and sentence. Public defenders assess the priorities of their clients — regarding both the direct and collateral consequences of the case — and piece together pleas that meet these varied needs. The length of sentence after a plea does not tell the full story about whether a defendant got a good deal because a successful plea now encompasses much beyond the final sentence.

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June 7, 2017 | Permalink | Comments (0)

Tuesday, June 6, 2017

Hamer on Tendency and Coincidence Evidence

David A. Hamer (The University of Sydney Law School) has posted 'Tendency Evidence' and 'Coincidence Evidence' in the Criminal Trial: What's the Difference? (Critical Perspectives on the Uniform Evidence Law, Andrew Roberts and Jeremy Gans, eds, Federation Press, Australia, 2017) on SSRN. Here is the abstract:

Courts in common law jurisdictions have struggled to cope with the admissibility and use of propensity evidence and similar fact evidence for well over a century. The complexities just seem to be increasing. This is particularly the case under the Australian uniform evidence law, which deals with the evidence under two separate provisions, one for tendency evidence and one for coincidence evidence. While the admissibility requirements under the two sections are identical, the courts are increasingly placing importance on the distinction between the two types of evidence. These distinctions apply both at the admissibility stage, and at the proof stage with different judicial directions. This paper analyses the logical structure of the inferences involved and argues that, while there are some distinctions between the two, the commonalities are greater. The increasing legal complexity is unnecessary and counterproductive.

June 6, 2017 | Permalink | Comments (0)

Modi on Foreign Compelled Testimony

Neal Modi has posted Towards an International Right Against Self-Incrimination: Expanding the Fifth Amendment's 'Compelled' to Foreign Compulsion (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:

Today, the United States is routinely involved in cross-border criminal investigations. But, unlike just a few years ago, foreign nations have begun their own investigations as well, in many instances probing the same (mis)conduct as the United States. While a welcomed change to some, intersections between U.S. and foreign investigations have triggered novel constitutional issues for American actors. For the first time, this Note will discuss a question that arises from these intersections: Is testimony independently compelled by a foreign sovereign, under threat of sanction, “compelled” under the Constitution’s Fifth Amendment?

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June 6, 2017 | Permalink | Comments (0)

Sperling & Holst on Metaphor

Carrie Sperling and Kimberly Y. W. Holst (University of Wisconsin Law School, Frank J. Remington Center and Arizona State University) have posted Do Muddy Waters Shift Burdens? (Maryland Law Review, Vol. 76, No. 3, 2017) on SSRN. Here is the abstract:

Metaphor has long been touted as a powerful tool of persuasion. Ancients said it. Social scientists have tested it. Legal scholars have hypothesized that a metaphorical framework shapes the way we understand and apply the law. However, we hypothesize that metaphor may be even more powerful than legal scholars have believed — that it can actually supplant the intended operation of the law, thwart legislative intent, yet remain hidden from critique. In this Essay, we support our hypothesis by following the use of a particular metaphor from its first reference in a judicial opinion through its eventual incorporation into doctrine despite subsequent legislative changes to the law. We demonstrate that the use of the metaphor has almost certainly acted as a stealth legal test, in direct opposition to the test the legislature originally constructed and later amended. By tracing the metaphor through its journey in the Texas courts, we aim not only to illustrate the power of metaphor, but to alert practitioners and scholars to the dangers of metaphor in the legal context.

June 6, 2017 | Permalink | Comments (0)