November 07, 2006
New Article Spotlight: Extraordinary Crimes at Ordinary Times: International Justice Beyond Crisis Situations
From SSRN.com: Climenko Fellow at Harvard Law School and aspiring CrimProf Sonja Starr recently published "Extraordinary Crimes at Ordinary Times: International Justice Beyond Crisis Situations." Here is the abstract:
International criminal tribunals have focused exclusively on crimes arising from crisis situations - war crimes and mass atrocities. International criminal law scholarship has generally taken this crisis focus for granted, emphasizing the objectives of transitional justice in the wake of extraordinary social upheaval. Meanwhile, extremely serious crimes committed on a longer-term, daily basis have been excluded from the agenda of international criminal law.
This article examines the history and impact of this crisis emphasis and explores alternative approaches in light of tribunals' institutional capacities and resource constraints. Using the principal example of catastrophic "grand" governmental corruption, it makes a practical, theoretical, and doctrinal case for international prosecution of some non-crisis-linked crimes, and concludes that tribunals' exclusive crisis focus is indefensible as a permanent condition.
However, for reasons of legitimacy and political strategy, it recommends a gradual approach toward expanding that focus, taking advantage of the transformative effect of crises in building acceptance of legal principles that can then be applied in other situations. [Mark Godsey]
October 28, 2006
NYU New Book Alert: Reconstructing the Fourth Amendment
"Reconstructing the Fourth Amendment is a remarkable scholarly accomplishment. It presents one of the most radical challenges to standard constitutional thinking--not just about searches and seizures but also about the interpretation of the Fourteenth Amendment as a protection of individual rights--in recent literature. Andrew Taslitz stakes out a radical and compelling position on a pressing contemporary issue--the protection of individual privacy against government invasion--and does so on impeccably researched and intellectually conservative grounds. It is a must read."
—H. Jefferson Powell, author of A Community Built on Words: The Constitution in History and Politics
"Taslitz's analysis provides a unique vision of the Fourth Amendment's purpose: to tame political violence from governmental officials, while forcing officials to treat each individual with respect and dignity. Taslitz's research on the search and seizure practices of Southern states during Reconstruction is illuminating and strengthens his thesis that respect for the individual lies at the core of the Fourth Amendment."
—Tracey Maclin, Professor of Law, Boston University School of Law
"Fourth Amendment scholarship has hitherto emphasized the amendment's background and gestation, i.e., the period before its inception in 1789. Taslitz, however, has removed a critical gap in that scholarship by illuminating the amendment's development after 1789, through the ante-bellum and Reconstruction periods, until 1868. Taslitz breaks new ground by exploring the Fourth Amendment's connections with political violence and slavery. He introduces readers to the interpretative diversity of and among scholars who debate the amendment's original and current contents."
—William Cuddihy, author of The Fourth Amendment: Origins and Original Meaning, 602-1791
The modern law of search and seizure permits warrantless searches that ruin the citizenry's trust in law enforcement, harms minorities, and embraces an individualistic notion of the rights that it protects, ignoring essential roles that properly-conceived protections of privacy, mobility, and property play in uniting Americans. Many believe the Fourth Amendment is a poor bulwark against state tyrannies, particularly during the War on Terror.
Historical amnesia has obscured the Fourth Amendment's positive aspects, and Andrew E. Taslitz rescues its forgotten history in Reconstructing the Fourth Amendment, which includes two novel arguments. First, that the original Fourth Amendment of 1791—born in political struggle between the English and the colonists—served important political functions, particularly in regulating expressive political violence. Second, that the Amendment's meaning changed when the Fourteenth Amendment was created to give teeth to outlawing slavery, and its focus shifted from primary emphasis on individualistic privacy notions as central to a white democratic polis to enhanced protections for group privacy, individual mobility, and property in a multi-racial republic.
With an understanding of the historical roots of the Fourth Amendment, suggests Taslitz, we can upend negative assumptions of modern search and seizure law, and create new institutional approaches that give political voice to citizens and safeguard against unnecessary humiliation and dehumanization at the hands of the police. Get the Book. . . [Mark Godsey]
October 12, 2006
SCOTUS Heard Thomas v Musladin Yesterday
Question presented: In the absence of controlling Supreme Court law, did the 9th Circuit exceed its authority under 28 U.S.C. sec. 2254(d)(1) by overturning Musladin's state conviction of murder on the ground that the courtroom spectators indluced three family members of the victim who wore buttons depicting the decesaed? Details. . . [Mark Godsey] And here's some commentary from NPR
October 10, 2006
The Release of "Relief from the Collateral Consequences of Conviction"
Attorney Margy Love recently released Relief from the Collateral Consequences of Conviction: A State-by-State Resource Guide. Here is the summary:
The guide is the first comprensive survey U.S. laws and practices that allow an ex-offender to overcome or mitigate the collateral legal consequences of a criminal conviction.
It begins with short analytical pieces on executive pardon, judicial expungement and sealing, deferred adjudication and set-aside, certificates of rehabilitation, and laws that limit consideration of conviction in connection with employment and licensing. The heart of the guide is its detailed descriptions for each U.S. jurisdiction of available relief mechanisms and how they operate. Also included are charts that allow easy state-to-state comparisons.
The guide is an invaluable resource for policymakers and researchers dealing with the legal barriers to offender reentry, and for practitioners at every level of the justice system, and for offenders who are trying to put their past behind them. Check it out. . . [Mark Godsey]
September 30, 2006
New Article Spotlight: Criminal Justice and the Challenge of Family Ties
From SSRN.com: Florida State University College of Law CrimProf Dan Markel, Wake Forest University College of Law CrimProf Jennifer M. Collins, and University of California Hastings College of Law Ethan J. Leib recently published Criminal Justice and the Challenge of Family Ties. Here is the Abstract:
This Article asks two basic questions: when does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system.
Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a 'Spartan' presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and under what circumstances it might be overcome.
Here is what the PrawfsBlawg had to say: You still haven't downloaded it? Ok, here are some of our
crazier more provocative claims and findings.
First, did you know that in fourteen states you could harbor a fugitive without penalty--as long as that person is a family member? We think that's a bad idea and we'll tell you why.
Second, we think the evidentiary privileges for spouses and family members in the criminal justice system should be eliminated. Full stop. Read the paper and we'll tell you why.
Third, we explain why sentencing discounts for people on account of family ties and responsibilities should be eliminated. We argue that such discounts are wrong, illiberal, and bad policy, and that in the case of the "irreplaceable caregiver," time-delayed sentencing should be used instead where possible. "What's time-delayed sentencing?" you ask. Read the paper and we'll explain...
September 25, 2006
New Article Spotlight: Scalian Skepticism and the Sixth Amendment in the Twilight of the Rehnquist Court
From SSRN.com: Chapman University School of Law CrimProf Katherine M. Darmer recently published Scalian Skepticisim and the Sixth Amendment in the Twilight of the Rehnquist Court. Here is the abstract:
While the late Chief Justice William Rehnquist left behind a rich criminal procedure legacy marked by pro-government successes in the Fourth and Fifth Amendment contexts, this paper argues that Rehnquist's vision failed with respect to the Sixth Amendment.
In both the Federal Sentencing Guidelines and Confrontation Clause contexts, Justice Scalia marked out very different positions than Rehnquist on both the scope of the right to trial by jury and the right of cross-examination. Ultimately, Scalia's views prevailed, and part of the legacy of the "Rehnquist Court" is now the invalidation of the U.S. Sentencing Guidelines and a "testimonial" approach to the Confrontation Clause.
Ultimately, Scalia's skepticism of the judiciary stood in marked contrast to Rehnquist's more pragmatic approach to the Sixth Amendment and resulted in pro-defendant rulings based on a more "purist" view of the constitutional rights of criminal defendants. [Mark Godsey]
September 23, 2006
"Cry Rape" is Now Available
A book written by Bill Leuders, entitled, CRY RAPE: The True Story of One Woman’s Harrowing Quest for Justice, is now available for purchase.
The book tells the story of a woman in Madison, WI, who was raped. Detectives investigating the crime, however, concluded that she was fabricating her allegations, and interrogated her until they got her to confess to having made up her allegations. They then charged her with obstructing an officer for having fabricated her claims. Ultimately, DNA testing proved that her allegations were true.
Barry Scheck, whom many of you know from the New York Innocence Project, had this to say about the book: "Cry Rape provides a chilling account of how tunnel vision van lead even well-meaning police officers into forming conclusions that are flat-out wrong, how powerful interrogation techniques can lead innocent people to confess to crimes they did not commit, and how DNA can correct mistakes for the lucky few." More Info. . . [Mark Godsey]
September 14, 2006
New Article Spotlight: Structural Reform Prosecution
In what I call a structural reform prosecution, prosecutors secure the cooperation of an organization in adopting sweeping internal reforms rather than seek its conviction for criminal acts of its agents. Dozens of leading corporations in the past few years entered into demanding settlements with federal prosecutors, including AIG, American Online, Bristol-Myers Squibb Co., Computer Associates, HealthSouth, KPMG, MCI, Merrill Lynch & Co, Monsanto, and Time Warner.
Nevertheless, no scholars have considered the problem of prosecutors seeking structural reform remedies. I conducted the first empirical study of the terms in the agreements the DOJ has negotiated to date, which reveals that federal prosecutors consistently imposed deep governance reforms, but also unrelated terms indicating potential abuses of their power. Unlike in civil rights cases that long accomplished court-supervised institutional reform, prosecutors designed settlements to avoid judicial review of their terms or implementation. We should carefully examine this bold new prosecutorial mission because it fundamentally transforms federal criminal law, affects entire industries, and yet appears to lack any due process safeguards.
I frame and evaluate five models that prosecutors can adopt to pursue structural reforms. Prosecutors have chosen the model that departs most radically from prior federal organizational criminal law. I conclude that in time, however, judicial limits will constrain prosecutorial discretion and result in a more effective regime for deterring organizational crime. [Mark Godsey]
September 13, 2006
"Porn Up, Rape Down" v. "Reducing Rape with an Eraser"
Northwestern LawProf Anthony D'Amato's essay Porn Up, Rape Down is taking a beating by scholars who call the essay "jingoist zealotry" based on statistics that "don't reflect what is truly happening in sex related crimes." According to Dr. Judith Reisman, president of the Institute for Media Education and author of Kinsey, Crimes, & Consequences, rape stats may be lower, but the reduction is a consequence of unreported incidents and law enforcement agencies either under-reporting their crime stats to the FBI or reclassifying sex crimes with "non-crime codes." More from WorldNetDaily. . . [Michele Berry]
September 12, 2006
New Article Spotlight: Federalism, Deportation, and Crime Victims Afraid to Call the Police
From SSRN.com: Arizona State University College of Law CrimProf Orde Kittrie recently published Federalism, Deportation, and Crime Victims Afraid to Call the Police. Here is the abstract:
The article analyzes the federal versus local struggle over deportation's deterrent effect on crime reporting by unauthorized aliens. There are now 11.1 million unauthorized aliens in the U.S., including five percent of American workers. They are victims of more than one million crimes per year. The Supreme Court has held that unauthorized aliens enjoy certain constitutional rights. Unauthorized aliens fear, however, that turning to local police for protection would result in their deportation by federal immigration authorities.
The article describes how unscrupulous employers, common criminals, battering spouses, corrupt government officials, border vigilantes, and others exploit unauthorized alien fear of calling the police.
Three special visa categories incentivize reporting by unauthorized aliens of certain crimes. But the categories' narrowness means that federal law offers no relief from the deportation-versus-crime-reporting predicament with respect to more than ninety percent of the over one million crimes committed against unauthorized aliens in the U.S. each year.
Many of the largest U.S. cities have stepped into the breach with “sanctuary policies” prohibiting police cooperation with federal immigration authorities. The article finds that local sanctuary policies are ineffective in encouraging unauthorized aliens to report crimes. It also determines that several major city sanctuary policies are contrary to federal law. The article concludes by suggesting a more effective and legally viable way to encourage unauthorized aliens to report crimes.
The article's analysis reverberates far beyond immigration law. The Supreme Court's “new federalism,” including the anti-commandeering doctrine, and conservative control of the federal executive and legislative branches have activists looking to the local level to advance civil rights agendas on issues including gay marriage, medical marijuana, and the war on terror. The federal versus local struggle over deportation's deterrent effect on crime reporting by unauthorized aliens contains important lessons for these other causes. [Mark Godsey]
September 07, 2006
New Article Spotlight: Genetics and Responsibility: To Know the Criminal From the Crime
From SSRN.com: Vanderbilt University School of Law Crimprof Nita A. Farahany and Duke University School of Law CrimProf James Coleman recently released Genetics and Responsibility: To Know the Criminal From the Crime. Here is the Abstract:
This article discusses the use of behavioral genetics in criminal cases and argues, contrary to the conventional view, that criminal responsibility theory limits the role behavioral predisposition testimony should play in assessing criminal responsibility.
We proceed by reviewing criminal cases in which behavioral genetics and neurological evidence has been introduced - including claims that a defendant acted involuntarily, lacked the requisite mens rea, satisfied the mental defect element of an insanity defense, or was entitled to differential sentencing. This review reveals that courts have rejected the majority of these claims, but primarily because of the inadequacy of the science thereby leaving open the door for the introduction of such evidence in future criminal cases as the science further develops.
The article then offers a more robust rationale for rejecting behavioral predisposition evidence when assessing a defendant's criminal responsibility. Using behavioral genetics as a tool, we explain why criminal responsibility theory clashes with defenses based on behavioral predispositions. We argue that the two components of criminal responsibility - liability and justifications and excuses to liability - operate with little regard to the infirmities of a criminal defendant. In so doing, we elucidate the fundamental characteristics underlying these components including the assumptions of legal free will and human agency, the voluntary act requirement, mens rea, and the reasonable person standard.
We explain why seemingly anomalous defenses such as provocation and battered woman syndrome do not meaningfully challenge whether criminal responsibility operates without regard to a defendant's unique mental infirmities. Because liability and justifications and excuses to liability do not turn on individual infirmities, we conclude that behavioral genetics should not inform criminal responsibility.
September 05, 2006
New Article Spotlight: Two Types of Consequentialism, Two Types of Formalism: Reconsidering Bordenkircher in Light of Apprendi
From SSRN.com: Marquette University School of Law CrimProf Michael M. O'Hear recently published Two Types of Consequentialism, Two Types of Formalism: Reconsidering Bordenkircher in Light of Apprendi. Here is the abstract:
While the Supreme Court approved of the use of charging threats nearly thirty years ago in Bordenkircher v. Hayes, a more recent line of cases has subtly undermined key premises of that landmark decision. In order to induce guilty pleas, prosecutors might use any of a number of different tactics. A prosecutor might, for instance, charge aggressively in the first instance and then promise to drop the most serious charges in return for a guilty plea to a lesser offense.
Bordenkircher addressed the mirror-image of this tactic: the prosecutor filed relatively minor charges at first, but then threatened to pursue more serious charges if the defendant did not plead guilty. The Supreme Court approved of such charging threats based on two considerations: the efficiency benefits of resolving cases by plea instead of jury trial, and the possibility that prosecutors would evade a ban on threats by charging more aggressively in the first instance.
The Court's reasoning, however, is inconsistent with Apprendi v. New Jersey and its progeny. Apprendi rejected the use of both efficiency considerations and evasion concerns as grounds for impairing access to juries. Apprendi instead emphasized a need for robust checks and balances within the criminal justice system. Because the Apprendi line of cases addressed sentencing procedures, not plea bargaining, their relevance to Bordenkircher has thus far escaped notice.
The Article argues, however, that the Court should now overturn Bordenkircher in light of the values it embraced in Apprendi. The Article also proposes a new test for evaluating the constitutionality of charging threats. [Mark Godsey]
August 29, 2006
New Article Spotlight: Systemic Changes that Could Reduce the Conviction of the Innocent
From SSRN.com: University of North Carolina at Chapel Hill School of Law CrimProf Arnold H. Loewy recently published Systemic Changes that Could Reduce the Conviction of the Innocent. Here is the abstract.
In an ideal world, juries would always reach the correct result. In theory, we believe that the second best choice is to err on the side of acquitting the guilty rather than convicting the innocent. We say that it is better to acquit ten guilty men than convict one who is innocent. But I'm not sure that we really believe it. Would we really let ten child molesters walk the street to avoid convicting one innocent one? I have my doubts.
Although we think the system is tilted to protect defendants, it may not be. Juries may not really believe in the “presumption of innocence.” Furthermore the prosecutor usually has far more resources than the defense. Searches have to be reasonable, but at least the government can conduct them. The defense cannot. More generally, the prosecution has a professional police force investigating for it, and greater access to forensic testing. If the prosecutor wishes to frame a suspect (which fortunately is not the norm) it may not be all that difficult.
It's hard to know which way juries in fact err more. Some high profile cases (John Hinckley, O.J. Simpson) may be instances in which a guilty man was acquitted. But recent studies have identified a huge number of wrongful convictions. I'm not persuaded that we really are acquitting more guilty people than convicting those who are innocent. There is probably no value in redefining reasonable doubt, but we can examine and try to minimize the causes of wrongful conviction.
False identification is one of the largest problems. Of course, we can't disallow eye-witness identification. But we can alter procedures to make them more reliable. One is to show pictures and suspects individually so that the witness will not assume that the array includes the culprit. Another is to have the lineup conducted by someone who doesn't know who the suspect is to avoid intentional or unintentional tipping of the witness.
False confessions are another problem. Perhaps the best remedy is to videotape all confessions so that defense counsel and the court (jury?) can see how the confession was obtained, and perhaps defense counsel can expose its probable inaccuracy.
Bad forensics can be either intentionally or unintentionally done. In the former case, severe sanctions should be available, and, of course, the conviction so obtained should be set aside. With unintentional botched forensics, defense counsel simply need to be trained to spot the problem and counter the bad forensics with their own better forensics.
Perhaps the most pernicious source of false convictions are so-called jailhouse confessions. These occur when an inmate claims to have overheard the defendant describe and confess to the crime. The informant is usually paid in the form of cash, dropped charges, and/or a reduced sentence. Obviously the probability of perjury is extremely high in such a circumstance. I would seriously consider disallowing this type of testimony entirely because of the high likelihood that it is false. Short of that, I'd at least require a cautionary instruction to the jury to be wary of the probability of falsity.
I conclude with four suggestions that are predicated on the reality that wrongful convictions happen. (1) There should be innocence commissions set up similar to the British model. (2) Defenses should not be artificially limited. For example, pending the outcome of a U.S. Supreme Court case, a State can (and some do) deny the defendant the opportunity to present evidence that somebody else committed the crime. (3) As long as we know there are mistakes, capital punishment should be abolished (as most of the civilized world has). And (4) parole should not be contingent on a person's admitting his guilt. This presents an untenable dilemma for an innocent person, and may actually cause him to spend more time in prison than a similarly-situated guilty one.
August 28, 2006
New Article Spotlight: Furman Fundamentals
For the first time in a long time, the Supreme Court's most important death penalty decisions all have gone the defendant's way. Is the Court's newfound willingness to protect capital defendants here to stay? Or is it a passing fancy that will dissipate in less hospitable times?
At first glance, history allows for optimism. Furman v. Georgia, the 1972 landmark that invalidated the death penalty, provides a seemingly perfect example of the Court's ability and inclination to protect capital defendants when no one else will. Furman looks countermajoritarian, scholars have claimed it was countermajoritarian, and even the Justices saw themselves as playing a heroic, countermajoritarian role in the case.
But the lessons of Furman are not what they seem. Rather than proving the Supreme Court's ability to withstand majoritarian influences, Furman teaches the opposite - that even in its more countermajoritarian moments, the Court never strays far from dominant public opinion, tending instead to reflect the social and political movements of its time.
This Article examines the historical context of Furman v. Georgia and its 1976 counterpart, Gregg v. Georgia, to highlight a fundamental flaw in the Supreme Court's role as protector of minority rights: its inherently limited inclination and ability to render countermajoritarian change.
In theory, the Court might protect unpopular minorities, but in practice it is unlikely to do so unless a substantial (and growing) segment of society supports that protection. Even then, Furman reminds us that the Court's “help” may do more harm than good. If the past truly is a prologue, Furman portends that the Court's current interest in restricting the death penalty will not last forever. Like the fair-weather friend, the Court's protection will likely be there in good times but gone when needed the most.
August 23, 2006
New Article Spotlight: The First Amendment as Criminal Procedure
This article explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other. But many instances of government information gathering can implicate First Amendment interests such as freedom of speech, association, and religion.
The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case, Boyd v. United States, where the Supreme Court held that the government was prohibited from seizing a person's private papers. Over time, however, Fourth and Fifth Amendment protection shifted, and now countless searches and seizures involving people's private papers, the books they read, the websites they surf, the pen names they use when writing anonymously, and so on fall completely outside of the protection of constitutional criminal procedure.
Professor Solove argues that the First Amendment provides protection against government information gathering implicating First Amendment interests. He contends that there are doctrinal, historical, and normative justifications to develop what he calls “First Amendment criminal procedure.” Solove sets forth an approach to determine when certain instances of government information gathering fall within the regulatory domain of the First Amendment and what level of protection the First Amendment should provide. [Mark Godsey]
August 03, 2006
Harvard CRCL Law Review Publishes First Article Written by a Prison Inmate
The Harvard Civil Rights-Civil Liberties Law Review is publishing its first ever article written by a prison inmate, Thomas C. O’Bryant, who is a jailhouse lawyer serving two consecutive life sentences in prison without hope of release. Having taught himself the law from prison, O’Bryant has represented himself and other inmates in numerous criminal and civil lawsuits in state and federal courts over the past ten years.
In his law review article, O’Bryant describes the difficult process that he and other indigent inmates must endure to challenge their state convictions. O’Bryant argues that the combination of federal laws and stringent prison conditions make it impossible to challenges wrongful convictions effectively. O’Bryant describes his own case, in which his lawyer assured him that if he pled guilty, he would be eligible for release after ten years, even though he discovered from prison that he would never be eligible for release.
O’Bryant’s article is the centerpiece of a Symposium of articles in the Harvard Civil Rights-Civil Liberties Law Review that examines pro se litigation ten years after AEDPA. Other authors of articles in the Symposium include Bryan Stevenson, the director of the Equal Justice Initiative of Alabama and a Professor at NYU Law School, Jamie Fellner, the director of U.S. Programs at
Human Rights Watch, and Jessica Feierman, at attorney at the Juvenile Law Center in Philadelphia, PA. Coming on the heels of the 10th Anniversary of the passage of Antiterrorism and Effective Death Penalty Act of 1996, all of the articles in the Symposium challenge legislators, scholars, advocates, and everyone interested in issues of criminal justice in America to rethink its
treatment of “final” criminal convictions.
The entire Summer Issue including O’Bryant’s article. . . [Mark Godsey]
July 30, 2006
New Article Spotlight: Originalists, Politics, and Criminal Law on the Rehnquist Court
From SSRN.com: New York University School of Law CrimProf Rachel Barkow recently published "Originalists, Politics, and Criminal Law on the Rehnquist Court." Here is the abstract:
One of the most important legacies of the Rehnquist Court's criminal law jurisprudence is its reinvigoration of the Constitution's jury guarantee. The Court has made clear that legislators cannot pass laws mandating increases in punishment unless those laws are applied by juries, not judges. The Court has therefore rejected existing sentencing laws in numerous states and the federal system, and sentencing policy is under scrutiny as never before.
The Court's sentencing cases are not only significant for their impact on day-to-day plea bargaining and trial practice in the criminal justice system; they also provide a concrete and important example of the power of law and legal methodology - and not simply politics - in Supreme Court decisionmaking. The sentencing decisions are out of step with what attitudinalist political scientists would have predicted from the right-leaning Court. The cases are the product of an alliance between Justices that the attitudinalists view as the extreme left and right of the Court; they are the product of a partnership between the Court's self-proclaimed originalists and those members of the Court who are most sensitive to the role of the judiciary in protecting criminal defendants' rights from majority politics. This area of criminal law is therefore an important reminder of the significance of legal methodology to case outcomes.
In addition to documenting the importance of the jury cases, this Article uses those cases as a springboard for a larger analysis of the relationship between originalists, politics, and criminal law on the Rehnquist Court. By reviewing all of the Rehnquist Court's criminal opinions in argued cases during the ten-year period from the October 1994 Term through the 2003 Term, this Article shows that the Justices' votes in criminal cases do not fit neatly into the attitudinal model. While a review of those cases confirms the conventional view that the Court's liberal bloc voted for criminal defendants more frequently than the Court's conservatives in non-unanimous cases, the more interesting pattern is the variation among the Court's conservatives in non-capital criminal cases in which the five conservatives disagreed among themselves. In the fifty-five non-capital criminal cases in which the Court's conservatives did not vote as a bloc, Justices O'Connor, Scalia, and Kennedy each voted for the defendant twenty-four times, Justice Thomas voted for the defendant in eighteen cases, and Chief Justice Rehnquist in fourteen cases. In several of the most important constitutional decisions of that period, including but not limited to the jury cases, the conservative originalists voted for defendants while the pragmatist conservatives ruled for the government. The jury cases are therefore part of a larger pattern that reveals the relationship between originalism, politics, and criminal law to be far more complicated than is commonly believed.
July 16, 2006
New Article Spotlight: Manson v.Brathwaite Revisited: Towards a New Rule of Decision for Due Process Challenges to Eyewitness Identification Procedures
From SSRN.com: Yale Law School CrimProf Giovanna E. Shay and Timothy O'Toole from P.D.S. in D.C. recently published "Manson v. Brathwaite Revisited: Towards a New Rule of Decision for Due Process Challenges to Eyewitness Identification Procedures." Here is the abstract:
A major cause of wrongful convictions is mistaken eyewitness identification. The leading Supreme Court case governing due process challenges to identification procedures, Manson v. Brathwaite, is almost 30 years old, and does not account for decades of social science research on eyewitness identification. In fact, parts of the Manson test designed to ensure reliability run counter to research findings. In this piece, O'Toole and Shay describe the problems with the Manson test, and, drawing on a theoretical framework introduced by Professor Mitchell Berman and employed by Professor Kermit Roosevelt, propose a new rule of decision for due process challenges to identification procedures.
July 04, 2006
New Article Spotlight: The Multiple Dimensions of Tunnel Vision in Criminal Cases
From SSRN.com: University of WisconsinLaw School CrimProfs Keith A. Findley and Michael Scott recently published "The Multiple Dimensions of Tunnel Vision in Criminal Cases." Here is the abstract:
|The 170-plus postconviction DNA exonerations of the last 15 years have exposed numerous problems that have contributed to convicting the innocent. The specific problems include eyewitness error and flawed eyewitness procedures, false confessions, forensic error or fraud, police and prosecutor misconduct, inadequate defense counsel, jailhouse snitch testimony, and others. A theme running through almost every case, that touches each of these individual causes, is the problem of tunnel vision. |
Tunnel vision is a natural human tendency with particularly pernicious effects in the criminal justice system. This Article analyzes tunnel vision at various points in the criminal process, from police investigation through trial, appeal, and postconviction review. The Article examines the causes of tunnel vision in three domains. First, tunnel vision is the product of natural human tendencies - cognitive distortions that make it difficult for human beings in any setting to remain open-minded. Second, institutional or role pressures inherent in the adversary system can exacerbate the natural cognitive biases, and induce actors to pursue a particular suspect too soon or with too much zeal. Finally, in some ways the criminal justice system embraces tunnel vision as a normative matter; it demands or teaches tunnel vision overtly, as a matter of policy or rule. This Article concludes by examining possible corrective measures that might be adopted to mitigate the effects of tunnel vision. Full Article. . . [Mark Godsey]
June 20, 2006
New Article Spotlight: Behavioural Genetics in Criminal Cases: Past, Present, and Future
"Researchers studying human behavioral genetics have made significant scientific progress in enhancing our understanding of the relative contributions of genetics and the environment in observed variations in human behavior. Quickly outpacing the advances in the science are its applications in the criminal justice system. Already, human behavioral genetics research has been introduced in the U.S. criminal justice system, and its use will only become more prevalent. This essay discusses the recent historical use of behavioral genetics in criminal cases, recent advances in two gene variants of particular interest in the criminal law, MAOA and SLC6A4, the recent expert testimony on behalf of criminal defendants with respect to these two gene variants, and the future direction of behavioral genetics evidence in criminal cases."
To obtain paper, click here