CrimProf Blog

Mutsavi & Meintjes-van der Walt on Firearm ID Evidence

Tanyarara Mutsavi and Lirieka Meintjes-van der Walt (University of Fort Hare and University of Fort Hare) have posted Ensuring the Reliability of Fire-Arm Identification Evidence (PER / PELJ 2020(23)) on SSRN. Here is the abstract:

 

Notwithstanding the acceptance of firearm identification by courts, the scientific community has been reluctant to recognise firearm identification as a reliable method of conclusively establishing a connection between a particular bullet and a particular gun. The National Institute of Justice (NIJ) in the United States (US) has categorised firearm identification as a discipline under forensic science, and forensic science has been described as a "fractured and burdened discipline". In addition, in 2009 the National Academy of Sciences (NAS) concluded that forensic science is broken. With regard to firearm identification, the NAS Report emphasised the need for sufficient studies to be done because this report regarded this type of evidence as unreliable and lacking repeatability. The President's Council of Advisors on Science and Technology (PCAST) Report, released in September 2016, came to a conclusion similar to that of the 2009 NAS Report with regard to forensic science evidence. With regard to firearm identification, the report asserted that firearm identification evidence still "falls short of the scientific criteria for foundational validity".

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Broughton on Pre-Trial Publicity

David Broughton has posted The South African Prosecutor in the Face of Adverse Pre-Trial Publicity (Broughton DWM "The South African Prosecutor in the Face of Adverse Pre-Trial Publicity" PER / PELJ 2020(23)) on SSRN. Here is the abstract:

Pre-trial publicity regarding a pending criminal case, which publicity may be in the form of media coverage of the case or a prior decision given in parallel judicial proceedings arising from substantially the same facts as the criminal matter, may be adverse to an accused. Such media publicity or findings contained in the parallel judicial decision may implicate the accused in the commission of the crime on which he or she is to stand trial. The publicity may, for example, suggest that the accused is "guilty" of the crime charged, or that the accused is of bad character having had the propensity to commit the crime. Conversely, pre-trial publicity may portray the accused as innocent of any criminal wrongdoing. In other words, pre-trial publicity may prejudge the issues that are to be adjudicated on at trial. A central question that may arise in these instances is whether there is a real and substantial risk that such publicity would materially affect or prejudice the impartial adjudication of the criminal case; that is to say, whether the publicity is likely to have a biasing effect on the trial court in the adjudication process or the outcome of the trial, thereby imperilling the constitutional right to a fair trial.

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Gosney on Prescription Drug Defense

Steven Gosney has posted Florida's Prove Yourself Innocent Absurdity: Florida's Prescription Drug Affirmative Defense (8 Stetson J. Advoc. & L. 97 (2021)) on SSRN. Here is the abstract:

Very little guidance is available to the practitioner for navigating Florida's Jury instruction 3.6(n) dealing with the affirmative defense of prescription drug. This article attempts to remedy that deficiency by proposing a useful framework by which trial courts and criminal law practitioners can understand and apply the seemingly contradictory instructions contained in 3.6(n).

Smith on Cellphones and the Tracking Device Statute

Stephen W. Smith (Stanford Law School Center for Internet and Society) has posted The Cellphone Donut Hole in the Tracking Device Statute (2021 Federal Courts Law Review (Forthcoming)) on SSRN. Here is the abstract:

 

Legal fictions continue to sprout in American jurisprudence. One of the most recent comes from the First Circuit Court of Appeals, which held in United States v. Ackies that a cellphone cannot be a tracking device as a matter of law. While most legal fictions are supported by some logical rationale, this startling contradiction of everyday experience demands a compelling justification. Yet, as this article hopes to show, there is none.

Using a statutory interpretation tool that Justice Gorsuch has caustically dubbed the “donut hole” canon, the First Circuit finds a tacit exclusion for cellphones in the Tracking Device Statute (TDS), which regulates this form of surveillance. The statute defines “tracking device” broadly and without exclusions—“a mechanical or electronic device which permits the tracking of movement of a person or object.” At the same time the court unduly restricts the proper scope of the TDS, it overextends the reach of the more permissive Stored Communications Act (SCA), a statute never intended to govern ongoing surveillance like real-time cellphone tracking.

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Lostal on Animal Victims

Marina Lostal (Essex University, School of Law) has posted De-objectifying Animals: Could they Qualify as Victims before the International Criminal Court? (Journal of International Criminal Justice ,vol 19 (2021): 1-28) on SSRN. Here is the abstract:

 

The legal framework of the International Criminal Court does not contain any provision concerning animals. This stands in contrast with the frequency with which they appear in both trial and reparations proceedings. The silence of the legal framework is problematic insofar as the ‘animal turn movement’, which questions the classical understanding and treatment of animals as objects, has permeated into both the international and domestic legal spheres. This article wishes to initiate a discussion on the treatment of animals before the Court by examining whether they could qualify as victims under Rule 85(a) of the Rules of Procedure and Evidence. While the short answer to this question is an unequivocal ‘no’, the conclusion reached is not the purpose of the analysis. The analysis shows that animals cannot qualify as ‘victims’ because they are not human beings. Yet, they comfortably meet the other two criteria, namely, (a) suffering harm, which (b) results from the commission of crimes within the Court’s jurisdiction. Thus, this article argues that — at least — granting animals the same treatment as human beings is no more objectionable as a matter of legal principle than granting them the status of ‘things’. This calls for a prompt discussion of the regulation of animals within the Court.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Informed Jury Daniel Epps and William Ortman Washington University in St. Louis - School of Law and Wayne State University School of Law Date Posted: 28 Jul 2021	375
2.	Proximate Cause Untangled Mark Geistfeld New York University School of Law Date Posted: 28 Aug 2021 [3rd last week]	124
3.	Why De Minimis is a Defence: A Reply to Professor Coughlan Colton Fehr Simon Fraser University Date Posted: 04 Oct 2021 [6th last week]	79
4.	The Transnational Cybercrime Extortion Landscape and the Pandemic: Changes in Ransomware Offender Tactics, Attack Scalability and the Organisation of Offending David S. Wall Centre for Criminal Justice Studies, School of Law, University of Leeds Date Posted: 31 Aug 2021	73
5.	Law of the Gun: Unrepresentative Cases and Distorted Doctrine Eric Ruben SMU Dedman School of Law Date Posted: 01 Sep 2021	70
6.	Expanding Compassion Beyond the COVID-19 Pandemic Katie Tinto and Jenny Roberts University of California, Irvine School of Law and American University - Washington College of Law Date Posted: 01 Sep 2021 [8th last week]	62
7.	Achieving Social Equity in the Cannabis Industry Samuel DeWitt Ohio State University (OSU), Michael E. Moritz College of Law, Students Date Posted: 08 Jun 2021 [9th last week]	58
8.	Past as Prologue: Intercept and Surveillance Rules Under Hong Kong's National Security Law Stuart Hargreaves The Chinese University of Hong Kong (CUHK) - Faculty of Law Date Posted: 31 Aug 2021 [10th last week]	56
9.	The Overlooked Victim Right: According Victim-Survivors a Right of Access to Restorative Justice Lynn S. Branham Saint Louis University - School of Law Date Posted: 27 Aug 2021 [new to top ten]	52
10.	In Defense of Felon-in-Possession Laws Drury D. Stevenson South Texas College of Law Date Posted: 02 Sep 2021 [new to top ten]	28

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Inside the Black Box of Prosecutor Discretion Megan S. Wright, Shima Baradaran Baughman and Christopher T. Robertson The Pennsylvania State University (University Park) – Penn State Law, University of Utah - S.J. Quinney College of Law and Boston University Date Posted: 28 Jul 2021	408
2.	The Informed Jury Daniel Epps and William Ortman Washington University in St. Louis - School of Law and Wayne State University School of Law Date Posted: 28 Jul 2021 [new to top ten]	375
3.	The Broken Fourth Amendment Oath Laurent Sacharoff University of Arkansas School of Law Date Posted: 08 Jun 2021 [new to top ten]	233
4.	Congressional Surveillance Aaron Cooper Georgetown University Law Center Date Posted: 27 Aug 2021 [3rd last week]	156
5.	The Living Rules of Evidence G. Alexander Nunn University of Arkansas - School of Law Date Posted: 09 Aug 2021 [4th last week]	152
6.	Implicit Bias and the Admissibility of Character Evidence Hillel J. Bavli Southern Methodist University - Dedman School of Law Date Posted: 17 Sep 2021 [5th last week]	147
7.	The Role of Emotion in Constitutional Theory J. Joel Alicea Catholic University of America — Columbus School of Law Date Posted: 23 Aug 2021 [6th last week]	122
8.	The Color of Justice Alexis Hoag Brooklyn Law School Date Posted: 23 Sep 2021	108
9.	Law, Fact, and Procedural Justice G. Alexander Nunn University of Arkansas - School of Law Date Posted: 12 Jul 2021 [7th last week]	106
10.	Bargained Justice: Plea Bargaining and the Psychology of False Pleas and False Testimony Lucian E. Dervan Belmont University School of Law Date Posted: 11 Jun 2021 [new to top ten]	98

Iowa seeks CrimProf for spring 2022 semester

Full announcement is here. Some details following the jump.

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Diamantis & Thomas on Corporate Criminal Law

Mihailis Diamantis and W. Robert (Will) Thomas (University of Iowa - College of Law and University of Michigan Ross School of Business) have posted But We Haven't Got Corporate Criminal Law! (43 J. Corp. L. (forthcoming 2022)) on SSRN. Here is the abstract:

 

Should the United States retain corporate criminal law? For more than a century, pearl-clutching abolitionists have decried the conceptual puzzles and supposed injustices of corporate criminal liability. Meanwhile, enthusiastic proponents of corporate criminal law have celebrated a system that they believe can deliver justice for victims and effective punishment to corporate malefactors.

The abolitionists won long ago… through craftiness rather than force of reason. By arguing that the United States should get rid of corporate criminal law, abolitionists have staged a debate that presumes corporate criminal law in fact exists. It does not, and it never has. The greatest trick the abolitionist ever pulled was convincing everyone to think otherwise and then duping their opponents into arguing for the status quo.

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Liao on Compulsory Military Service and Crime Rates

Chen-Hsuan Liao (The University of Tokyo - University of Tokyo, Graduate School of Public Policy) has posted Does compulsory military service influence crime rates? Evidence from Taiwan on SSRN. Here is the abstract:

 

This study investigates the effects of compulsory military service on adolescent crime. I exploit the reduction in the duration of Taiwan’s compulsory military service from one year to four months, which started in 2013. Using a triple difference approach, I find that the shorter service duration has led to a 36% increase in the number of adolescent male suspects and a 30% increase in crime rates. In particular, by enacting a 67% reduction in the time adolescents are incapacitated by military service, the reform has allowed adolescent males to engage in more criminal activities. My findings indicate that military service helps reduce crime; specifically, they suggest that the incapacitation effect of compulsory military service rather than the positive values (discipline, obedience, and collaboration) cultivated in a military camp has the most substantial impact on crime rates.

Wechsler on Victims as Instruments

Rachel J. Wechsler (The Peter L. Zimroth Center on the Administration of Criminal Law, New York University School of Law) has posted Victims as Instruments (Washington Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Crime victims are often instrumentalized within the criminal legal process in furtherance of state prosecutorial interests. This is a particularly salient issue concerning victims of gender-based violence (GBV) because victim testimony is typically considered essential for successful prosecution of these types of crimes, especially since the Supreme Court’s 2004 Crawford v. Washington decision requiring declarants to be available for cross-examination on “testimonial” hearsay evidence. Consequently, criminal legal actors often employ highly coercive practices to secure GBV victims’ participation in the criminal legal process as evidentiary tools, including arresting and incarcerating victims through material witness warrants and contempt power, criminally charging and threatening charges against them, and conditioning key assistance measures upon their full cooperation with law enforcement. This Article critically examines paternalistic and utilitarian justifications for these practices and exposes their misalignment with the core principles of each framework. It then examines the state’s approach to GBV victims under three interrelated conceptual frameworks which have thus far been overlooked in this context: deontological ethics, dehumanization constructs, and liberal legal principles. This novel critique argues that the practices at issue are incompatible with foundational principles concerning the dignified treatment of individuals within the liberal legal order. It also contends that the targeted use of these coercive mechanisms operates as punishment for victims who fail to conform to “ideal” and legitimate GBV victim stereotypes, which require full cooperation with criminal legal authorities.

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Schauer on Statistical Evidence and the Problem of Specification

Frederick Schauer (University of Virginia School of Law) has posted Statistical Evidence and the Problem of Specification (Episteme, vol. 19 (forthcoming 2022)) on SSRN. Here is the abstract:

 

Philosophical debates over statistical evidence have long been framed and dominated by L. Jonathan Cohen’s Paradox of the Gatecrasher and a related hypothetical example commonly called Prison Yard. These examples, however, raise an issue not discussed in the large and growing literature on statistical evidence -- the question of what statistical evidence is supposed to be evidence of. In actual practice, the legal system does not start with a defendant and then attempt to determine if that defendant has committed some unspecified or under-specified act, as these examples appear to suppose. Rather, both criminal and civil litigation start with a sufficiently specified act and then attempt to determine if the defendant has committed it. And when we start with a more fully specified act, the statistics look very different, and these prominent examples no longer present the paradox they are claimed to support. Examining the issue of specification, however, does more than simply undercut the prominent examples in a long and extensive literature. The examination also raises normative issues challenging the legal system’s traditional reluctance to base liability on the conjunction of probabilities.

Otey on Venue for Violent Crimes in Aid of Racketeering

Melvin Otey (Faulkner University - Thomas Goode Jones School of Law) has posted The Vexing Case of Venue for Violent Crimes in Aid of Racketeering (Penn State Law Review, Vol. 125, No. 3, 2021) on SSRN. Here is the abstract:

 

The right of accused persons to have their guilt adjudicated in the locations where their alleged crimes occurred is intrinsic to American conceptions of ordered liberty and fundamental fairness. It is so important that it is codified in, among other places, two constitutional provisions. Yet, dramatic technological advances have made affixing venue for some modern crimes increasingly difficult. Violations of 18 U.S.C. § 1959, which proscribes violent crimes in aid of racketeering, exemplify the complexity. Courts have used different methods to venue these prosecutions, but the approaches are largely inconsistent with traditional venue determinations, potentially impinge on defendants’ constitutional rights, and easily burden defendants’ vital interests. Consequently, a new approach is sorely needed. This Article proposes a standard that respects both the need for effective prosecution of violent crimes in aid of racketeering and defendants’ compelling interests in answering charges only where alleged offenses occur.

"End Mandatory Minimums"

From the Brennan Center, via NACDL's news-of-interest:

Currently, the dominant paradigm in the criminal legal system is the myth that imposing harsh mandatory minimum sentences and locking people of color in cages are necessary to keep white people safe. At the federal level alone, mandatory minimum penalties form the cornerstone of the human caging system. Prosecutors’ use of mandatory minimums in over half of all federal cases disproportionately impacts poor people of color and has driven the exponential growth in the federal prison population in recent decades. All 50 states and DC also have mandatory minimum sentencing laws.

"When a Miscarriage Is Manslaughter"

Michelle Goldberg has this piece in The New York Times. In part:

The trial finally took place this month and lasted one day. According to a local television station, an expert witness for the prosecution testified that methamphetamine use may not have been directly responsible for the death of Poolaw’s fetus. Nevertheless, after deliberating for less than three hours, a jury found her guilty, and she was sentenced to four years in prison.

Tonry on Doing Justice in Sentencing

Michael Tonry (University of Minnesota - Twin Cities - School of Law) has posted Doing Justice in Sentencing (Crime and Justice—A Review of Research, Forthcoming) on SSRN. Here is the abstract:

 

Anyone who would read a paper on this subject or with this title knows that sentences received by people convicted of crimes in American courts, especially serious ones, are much too often cruelly severe, racially disparate, and reflective more of a prosecutor’s or judge’s idiosyncrasies than of a reasoned assessment of what considerations of justice concerning this offense by this person require or permit. The process is ultimately casual, as if invasive intrusion into someone’s life is a matter of no great importance. To people sentenced, their families, and others who love them it is devastatingly important. Relatively simple ideas about justice, fairness, equality, and parsimony provide a framework to replace contemporary casual justice with a jurisprudence that takes human dignity seriously.

Smith on The Right to a Public Trial

Stephen Smith (Santa Clara University - School of Law) has posted What's in a Name? Strict Scrutiny and the Right to a Public Trial (Idaho Law Review, Vol. 57, No. 2, 2021) on SSRN. Here is the abstract:

 

The Sixth Amendment to the United States Constitution provides that the accused has a right to a public trial. The Supreme Court, in Waller v. Georgia, established that a trial court that seeks to close its courtroom must have a strong interest in closure and the closure must be narrowly tailored to further that interest. This apparent “strict scrutiny” applied to review courtroom closures ordered by trial courts should be conceived as a more lenient form of review. Waller should not be read to require strict scrutiny of courtroom closures. Ultimately, there is nothing especially objectionable about the language of Waller’s test. The reasons that justify a closure order, and possible alternatives to closure, should be considered by a court before it orders a closure. But those considerations should not be viewed through a strict scrutiny lens. Because the formulation of the strict scrutiny test is familiar to lower courts as something akin to a prohibition, that reading of the test may be misleading.

Tonry on The Frontier's Influence on American Criminal Justice

Michael Tonry (University of Minnesota - Twin Cities - School of Law) has posted  Fatalism and Indifference—The Influence of the Frontier on American Criminal Justice (Crime and Justice—A Review of Research, Forthcoming) on SSRN. Here is the abstract:

 

American criminal laws and criminal justice systems are harsher, more punitive, more afflicted by racial disparities and injustices, more indifferent to suffering, and less respectful of human dignity than those of other Western countries. The explanations usually offered—rising crime rates in the 1970s and 1980s, public anger and anxiety, crime control politics, neoliberal economic and social policies—are fundamentally incomplete. The deeper explanations are four features of American history and culture that shaped values, attitudes, and beliefs and produced a political culture in which suffering is fatalistically accepted and policy makers are largely indifferent to individual injustices. The four elements are the history of American race relations, the evolution of Protestant fundamentalism, local election of judges and prosecutors, and the continuing influence of political and social values that emerged during three centuries of western expansion. The last, encapsulated in Frederick Jackson Turner’s “frontier thesis,” is interwoven with the other three. Together, they explain long-term characteristics of American criminal justice and the extraordinary severity of penal policies and practices since the 1970s.

"Soros-Funded DAs Presiding Over a Bloodbath"

From Crime & Consequences. In part:

All of the progressive candidates ran on the same narrative;  longer sentences for repeat felons is racist, the police are racists, and less policing and shorter sentences will help rehabilitate offenders and make communities safer.   Every part of the narrative is a lie,  and the proof is playing out every day on the streets of their cities.

In Larry Krasner’s Philadelphia over 2,240 people were shot last year, the most ever recorded and 499 died, a 40% increase from 2019.  Officials claimed that the pandemic was a major factor but that doesn’t explain why homicides have increased by 14% so far this year.  What’s racist is who’s getting shot.  80% of the shooting victims are black.

 

"More Capitol Riot Defendants are Foregoing Lawyers"

From TalkLeft. In part:

U.S. District Court Judge Royce Lamberth told one such defendant he hadn't seen a successful case of self-representation since he took the bench in 1987. New York Civil Rights Lawyer Ron Kuby says he hasn't seen a successful case of self-representation in his 40 years as a lawyer.

I say this all the time on TalkLeft, but I'll do it one more time: You have the right to remain silent. Use it or lose it. Our jails are filled with people who thought if they could only tell their side of the story, the police (or judge or jury) would see it their way. It rarely happens.

Many of these under-informed defendants think that if they represent themselves, they will be able to put the corrupt "system" on trial. It won't happen. The system is not on trial, you are. Judges, not defendants, decide what is admissible at a trial. Any hint of something that seeks jury nullification won't be permitted in federal court.