Friday, November 13, 2015
Elizabeth C. Ahern , Samantha J. Andrews , Stacia N. Stolzenberg and Thomas D. Lyon (University of Cambridge , University of Cambridge , Arizona State University (ASU) - School of Criminology & Criminal Justice and University of Southern California - Gould School of Law) have posted The Productivity of Wh-Prompts in Child Forensic Interviews (Journal of Interpersonal Violence, Forthcoming) on SSRN. Here is the abstract:
Child witnesses are often asked wh-prompts (what, how, why, who, when, where) in forensic interviews. However, little research has examined the ways in which children respond to different wh-prompts and no previous research has investigated productivity differences among wh-prompts in investigative interviews. This study examined the use and productivity of wh-prompts in 95 transcripts of 4- to 13-year-olds alleging sexual abuse in child investigative interviews. What-how questions about actions elicited the most productive responses during both the rapport building and substantive phases. Future research and practitioner training should consider distinguishing among different wh-prompts.
Tracey Maclin (Boston University - School of Law) has posted Government Analysis of Shed DNA is a Search Under the Fourth Amendment (Texas Tech Law Review, 2015 Criminal Law Symposium: The 4th Amendment in the 21st Century, Vol. 48, Forthcoming) on SSRN. Here is the abstract:
This article addresses whether the Fourth Amendment is implicated when police surreptitiously collect and analyze a person’s involuntarily shed DNA.
Law enforcement officers will often obtain shed or abandoned DNA samples from persons who they suspect have committed crimes, but lack sufficient evidence to arrest or detain such persons. When utilizing abandoned or shed DNA for criminal investigative purposes, there are two state actions which arguably trigger Fourth Amendment protection.
Mike Rowe and Jeffrey Ian Ross (Northumbria University and University of Baltimore - School of Law) have posted Comparing the Recruitment of Ethnic and Racial Minorities in Police Departments in England and Wales with the USA (Policing: A Journal of Policy and Practice, Vol. 9, No. 1, pp. 26-35, 2015) on SSRN. Here is the abstract:
In the late 1820s, when British Home Secretary Sir Robert Peel introduced legislation into the British parliament to create the very first police department, the phrase that the ‘police are the public, and the public are the police’ was developed to allay public fears that the new institution would become an oppressive army of an overmighty central state. Unwittingly perhaps, this set the stage for efforts to create modern day police departments that are inclusive of the general community and reflect the racial and ethnic diversity of the wider population.
Further to this founding principle, in many countries, the need to recruit a more ethnically and racially diverse police service has been a pressing concern for several decades. Although this imperative is regarded as a core task for police services in liberal democratic countries with a common law tradition, it is worth noting that this aspect of the ‘diversity agenda’ has not been confined to such contexts. Indeed a more diverse pattern of recruitment has been sought by police services in imperialist and segregated societies too.
Lynn Adelman and Jon Deitrich (U.S. District Court - Eastern District of WI and United States District Court, Milwaukee) have posted How Federal Judges Contribute to Mass Incarceration and What They Can Do About It on SSRN. Here is the abstract:
Talk of reforming federal sentencing law by eliminating some mandatory minimum sentences is much in the air. The fact is, however, that many federal offenders are unnecessarily imprisoned in cases where there is no mandatory minimum. This article attempts to expand the conversation about excessive imprisonment by discussing first how the federal sentencing guidelines place far too much emphasis on prison and far too little on sentences served in the community. Next, we discuss federal judges' excessive attachment to the guidelines despite their deep flaws and even after the Supreme Court has made clear that judges are free to reject them. Finally, we propose an approach to federal sentencing that is much less deferential to the guidelines and places much more emphasis on 18 U.S. § 3553(a), the parsimony statute, which requires judges to impose the least punitive sentence necessary to achieve the goals of sentencing.
Thursday, November 12, 2015
Jeffrey Ian Ross (University of Baltimore - School of Law) has posted Varieties of Prison Voyeurism: An Analytic/Interpretive Framework (The Prison Journal, Vol. 95, No.3, pp. 397-417, 2015) on SSRN. Here is the abstract:
The public learns, experiences, and knows about jails, prisons, and the people who live and work there through a variety of mediums and/or methods. Not all situations are equal in terms of the cost to the individual, the reality of the experience, and the effect it may have on the participant. In an effort to better contextualize this process, this article develops a typology to better understand these methods of participation. Ten methods by which people can experience correctional facilities include, on one end of the spectrum, the highly personal experience of incarceration, and on the other end, attempts by individuals to understand and/or experience corrections without intimately engaging with the subject matter. This latter method, termed prison voyeurism, fails to contextualize the myths, misrepresentations, and stereotypes of prison life rather than clarifying or explaining them. The author develops a framework to interpret the jail and prison experience. Examples are drawn primarily from the American prison experience.
Jessica Heyman has posted Introducing the Jury Exception: How Equal Protection Treats Juries Differently (NYU Annual Survey of American Law, Vol. 69, No. 1, 2013) on SSRN. Here is the abstract:
For nearly a century after the Fourteenth Amendment was passed, Equal Protection did little to protect people of color. With one exception: the jury box. Throughout the last hundred and thirty years, beginning with the seminal 1879 case of Strauder v. West Virginia and continuing to the present, the Supreme Court has consistently affirmed its protection of blacks on jury venires, grand juries, and petit juries. This course has not been an unblemished one, but overall it is emphatically the most protected area of Equal Protection jurisprudence.
But that’s not all. Jury jurisprudence is the only area of Equal Protection jurisprudence that employs something akin to a disparate impact standard and uses a burden-shifting test. The only other areas of civil rights law that use a similar test are those in which Congress intervened: Title VII and Section 2 of the Voting Rights Act.
R. A. Duff and S. E. Marshall (University of Minnesota Law School and University of Stirling) have posted Criminalizing Hate? (Hate, Politics, Law, T. Brudholm & B. Schepelern Johansen (eds.), Oxford University Press, Forthcoming) on SSRN. Here is the abstract:
This paper explores the role that criminal law might play in combating ‘hatred’, in particular whether and why we might appropriately criminalize ‘hatred’. In s. 1 it sketches some salient features of a liberal, democratic republic (as the kind of polity in which we can aspire to live, and whose citizens can be expected to be committed to combating ‘hatred’). In ss. 2-3, we then explain why a certain kind of ‘hatred’ should concern members of such a polity, as a distinctive civic vice manifested in a distinctive kind of civic wrong. In ss. 4-5, we discuss the limited but significant role that criminal law can play, in principle, in responding to such hatred. Finally, in s. 6, we say a little about the difficulties involved in turning ‘in principle’ into ‘in practice’, particularly those concerning offence definitions.
Wednesday, November 11, 2015
Laurie N. Feldman (Government of the State of Connecticut, Office of the Chief State's Attorney) has posted The Unreliable Case Against the Reliability of Eyewitness Identifications: A Response to Judge Alex Kozinski (Quinnipiac Law Review, Forthcoming) on SSRN. Here is the abstract:
Judge Alex Kozinski’s recent critique of our criminal justice system begins by positing that jurors believe that eyewitnesses are highly reliable, and arguing that this belief is “undermined” by social scientific research showing that eyewitnesses are, in fact, “highly unreliable.” Hon. Alex Kozinski, Criminal Law 2.0, 44 Geo. L.J. Ann. Rev. Crim. Proc. iii (2015). In so doing, Judge Kozinski joins the defense bar, the Innocence Project, many social scientists and legal academics, the media, and an increasing number of courts in treating claims that juries pervasively accept unreliable eyewitness evidence as if they are firmly grounded in the rigorous testing of social science. To the contrary, this essay argues that (1) there is no reliable evidence that jurors routinely over-rely on eyewitness evidence; (2) there is no reliable basis in social science for generalizations about eyewitness identifications being unreliable; (3) eyewitness identification scholarship is often distorted by agenda-driven advocacy; (4) exonerations do not show that eyewitnesses are generally unreliable; (5) courts have uncritically adopted measures of questionable benefit regarding eyewitness evidence; and (6) reliable social science does not support the adoption of the “reforms” suggested by Judge Kozinski.
Criminal law frequently requires all-or-nothing determinations. A defendant who reasonably believed his companion consented to sex may have no criminal liability, while one who fell just short of being reasonable may spend several years in prison for rape. Though their levels of culpability vary slightly, their legal treatment differs dramatically. True, the law must draw difficult lines, but the lines need not have such dramatic effects. We can precisely adjust fines and prison sentences along a spectrum.
Leading theories of punishment generally demand smooth relationships between their most important inputs and outputs. An input and output have a smooth relationship when a gradual change to the input causes a gradual change to the output. By contrast, actual criminal laws are often quite bumpy: a gradual change to the input sometimes has no effect on the output and sometimes has dramatic effects. Such bumpiness pervades much of the criminal law, going well beyond familiar complaints about statutory minima and mandatory enhancements. While some of the bumpiness of the criminal law may be justified by interests in reducing adjudication costs, limiting allocations of discretion, and providing adequate notice, I will argue that the criminal law is likely bumpier than necessary and suggest ways to make it smoother.
Dennis J Baker has posted Mutual Combat Complicity, Transferred Intention/Defenses and the Exempt Party Defense (UNIVERSITY OF LA VERNE LAW REVIEW, Vol. 37, 2016) on SSRN. Here is the abstract:
In this article, I shall explore the role of oblique intention in the law of complicity. I shall use the recent Supreme Court decision from the United Kingdom in R. v. Gnango to argue the case for recognizing oblique intention as an alternative mental element in complicity. R. v. Gnango also raises the issue of transferred intention and transferred defenses, so I will explore those doctrines in the context of the law of complicity. A further issue raised in R. v. Gnango is the scope of the victim rule. Since the victim rule has implications for the transferred intention and transferred defense doctrines and ultimately for the fault and conduct elements for complicity, I examine it in the third part of this article.
Recent attention to police brutality has brought to the fore how police, when they become the subject of criminal investigations, are given special procedural protections not available to any other criminal suspect. Prosecutors’ special treatment of police suspects, particularly their perceived use of grand juries to exculpate accused officers, has received the lion’s share of scholarly and media attention. But police suspects also benefit from formal affirmative rights that protect them from interrogation by other officers. They benefit, in most jurisdictions, from a special shield against interrogation known as the Law Enforcement Officers’ Bill of Rights (LEOBORs). These statutes and negotiated agreements protect police from tactics that are part and parcel of the confession-inducing playbook these same officers use when questioning civilian suspects.
This paper investigates these formal procedural protections for police suspects.
Jesse Cheng (Marquette University) has posted 'Mitigate from Day One': Why Effective Defense Advocates Do Not Prioritize Liberty Over Life in Death Penalty Cases (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
When a death charge is filed in a murder case, there ensues an immediate change in both the attitudinal posture and the concrete practice of effective defense advocacy. Good practitioners suddenly become life-minded, embracing the impulse to view all aspects of trial strategy - including, prominently, the strategy for the guilt phase defense - through the prism of humanizing, life-saving evidence. This piece locates important roots of this drive to mitigate from day one in pressures that derive from certain operational characteristics peculiar to death penalty trials. I argue that these pressures create strategic choices that counsel would not have to face if these operational characteristics did not exist, ultimately pushing effective defense advocates to approach the first trial not as a self-contained, full-fledged contest to zealously defend their client’s right to be free (as the ideals of American law hold they should), but as an anticipatory prelude to later arguments to zealously preserve their client’s right to live.
Tuesday, November 10, 2015
In Miller v. Alabama, the Supreme Court held that imposing a mandatory life-without-parole (“LWOP”) sentence on a juvenile offender constituted a cruel and unusual punishment in violation of the Eighth Amendment. Three years later, the question remains whether the holding in Miller applies retroactively. As explained below, the applicable exception to the Teague presumption of prospective application of new criminal rules concerns whether the new rule is substantive or procedural. Generally, if the rule is substantive, its application is retroactive; if the rule is procedural, its application is prospective. This term, the Court will take up that question in Montgomery v. Louisiana.
This short essay argues that the new rule articulated in Miller possesses both substantive and procedural characteristics. This essay then explains why, for purposes of retroactivity, the substantive content of Miller matters more than the procedural content. As a result, Miller should apply retroactively. Finally, the essay suggests that the argument in Montgomery provides a roadmap for future Eighth Amendment challenges. Specifically, each characterization of Miller — substantive and procedural — has novel implications for the scope of the Eighth Amendment, and offers intriguing opportunities for future petitioners to challenge the constitutionality of mandatory sentences and LWOP sentences.
Building on Professor Andrew Taslitz’s work, this article explores how Fair Price Theory can help us analyze the fairness of guilty pleas. In "Judging Jena’s D.A.," Professor Taslitz used Fair Price Theory to explore how prosecutors could strive to achieve fairness and reduce the perception of racial stigma. He used Fair Price Theory to propose a system of prosecutorial ethics that takes into account racial stigma. This article considers how Fair Price Theory challenges courts to analyze guilty pleas differently, by focusing on price without relying on the agency of prosecutors. Under current doctrine, a court examines whether the defendant’s decision to plead guilty is voluntary, informed, and factually supported. Courts do not assess whether the defendant is getting a fair deal or fair price. Fair Price Theory could help define and assess what makes a deal (or price) fair. And that analysis, with its related questions, challenges the status quo by making price and fairness a central inquiry.
Stacia N. Stolzenberg and Thomas D. Lyon (Arizona State University (ASU) - School of Criminology & Criminal Justice and University of Southern California - Gould School of Law) have posted How Attorneys Question Children About the Dynamics of Sexual Abuse and Disclosure in Criminal Trials (20 Psychology, Public Policy, and Law 20 (2014)) on SSRN. Here is the abstract:
Little is known about how the dynamics of sexual abuse and disclosure are discussed in criminal court. We examined how attorneys ask child witnesses in sexual abuse cases (N = 72, 6-16 years of age) about their prior conversations, both with suspects and with disclosure recipients. Prosecutors’ questions were more open-ended than defense attorneys, but most questions asked by either attorney were yes/no questions, and children tended to provide unelaborated responses. Prosecutors were more inclined to ask about children’s prior conversations with suspects than defense attorneys, but focused on the immediate abuse rather than on grooming behavior or attempts to silence the victim. Prosecutors were also more inclined to ask about children’s motives for disclosing or for failing to disclose than defense attorneys, but in most cases, failed to ask. Both types of attorney asked children about prior disclosures, although defense attorneys were more inclined to ask children to recall specific content in particular disclosures. On average, children were asked about five disclosure recipients, and denied disclosing some information in 93% of cases. Attorneys exhibited little sensitivity to the age of the child in selecting their questions. The implications of the results for improving the process by which abuse cases are tried in court are discussed.
In this essay the author argues that the definition of innocence and the classification of wrongful convictions matters, both empirically and normatively. The advantage of an innocence-based definition of an exoneration is that it allows researchers access to more valuable data about the regularity, distribution, causes, correlates and consequences of near-certain wrongful convictions of the innocent than would otherwise be available if scholars limited themselves solely to those comparatively few cases in which factual innocence can be proven to an absolute certainty. By relying on an innocence-based definition of exoneration, researchers are also able to empirically study patterns and variation in the wrongful conviction of the innocent more quantitatively and thus more systematically, moving away from the story-based explanations that have dominated much of the research literature on wrongful convictions. As scholars accumulate more systematic and generalizable knowledge about the factors that contribute to wrongful conviction of the innocent, they will be able to provide more empirically-informed policy analyses about the best ways to prevent such convictions.
Monday, November 9, 2015
Dennis J Baker has posted Reinterpreting the Mental Element in Criminal Complicity: Change of Normative Position Theory Cannot Rationalize the Current Law (Law & Psychology Review, Vol. 40, 2016) on SSRN. here is the abstract:
In this article, I will argue that the mental element in complicity is one of intention. It is submitted that recklessness is not sufficient. This will be demonstrated by showing that the ancient and modern authorities on complicity required intention. Coupled with this, it shall be argued that complicity’s “causal participation” element means the conduct element in complicity can only be made out in the common purpose/joint enterprise complicity scenario when there is intentional encouragement on the part of the accessory. Since the Accessories and Abettors Act 1861 U.K., like most of the statutory provisions found in the United States, deems that both the perpetrator and accessory are perpetrators (principals) for the purpose of punishment and crime labelling, limiting the mental element in complicity to intentional participation is the only way to reconcile these sorts of provisions with the requirements of proportionate punishment and fair labelling. It is true that some forms of reckless encouragement and assistance will not be criminalized if the mental element in complicity is intention only, but a lesser offence of reckless participation would plug this lacuna and would allow for fair labelling and proportionate punishment.
The story is in The New York Times:
A federal judge on Monday partly blocked theNational Security Agency’s program that systematically collects Americans’ domestic phone records in bulk just weeks before the agency was scheduled to shut it down and replace it. The judge said the program was most likely unconstitutional.
In a separate case challenging the program, a federal appeals court in New York on Oct. 30 had declined to weigh in on the constitutional issues, saying it would be imprudent to interfere with an orderly transition to a replacement system after Nov. 29.
But on Monday, in a 43-page ruling, Judge Richard J. Leon of the United States District Court for the District of Columbia wrote that the constitutional issues were too important to leave unanswered in the history of the disputed program, which traces back to the aftermath of the Sept. 11 terrorist attacks and came to light in 2013 in leaks by Edward J. Snowden, the former intelligence contractor.
Jurist has the story:
The US Supreme Court [official website] on Monday declined to rule inDavis v. United States[docket; cert. petition, PDF], Monday, rejecting a case that questioned the necessity of search warrants being presented to wireless carriers when law enforcement requests access to cell phone location data. The case was on appeal [opinion, PDF] from the US Court of Appeals for the Eleventh Circuit [official website]. Quartavious Davis alleged that his Fourth Amendment right to be free from unreasonable search and seizure was violated when no warrant was sought or provided by law enforcement to the carrier of his cell data,MetroPCS [corporate website]. A search warrant requires probable cause, but police obtained the appellant's cell location with a court order, requiring less than probable cause, under the Stored Communications Act [text]. The Act does require "specific and articuable facts showing that there are reasonable grounds" to believe the relevance of the records to the investigation. The American Civil Liberties Union [advocacy website] has argued that the statute did not foresee [text] the information made obtainable by modern technology.
Time is everywhere in law. It shapes doctrines as disparate as ripeness and retroactivity, and it impacts litigants of every status and type — the eager plaintiff who brings her case too early, the death-row inmate who seeks his stay too late. Yet legal time is still scarcely studied, and it remains poorly understood. This Article makes new and better sense of that time. It begins with an original account of time as a tool of institutional power, tracking the relocation of that power from the first western cathedrals to the earliest Supreme Court. It then links time’s revealing past to our messy doctrinal present — first by compiling an initial doctrinal tally, then by sorting the doctrine into a novel time typology. This typology splits into three core categories — all time, some time, and broken time — and it brings analytical coherence to a concept too-long ignored. Even more, it sketches a blueprint for worthwhile reform. This Article proposes four such reforms — to Hicks v. Miranda, to mootness and desuetude, to retroactivity doctrine, and to Federal Rule of Civil Procedure 60(b) — and it rethinks the courts’ most enduring time commitments. It also builds the foundation for what is to come, opening a discussion about time as a legal technology, arguing for a more critical investigation of the law’s clock.