CrimProf Blog

Tanovich on Absence of Motive to Lie in Sexual Assault Cases

David M Tanovich (University of Windsor - Faculty of Law) has posted A Principled Approach to Assessing the Absence of Motive to Lie in Sexual Assault Cases ((2022) 79 Criminal Reports 230-243) on SSRN. Here is the abstract:

 

When can a trier of fact take into account the absence of a complainant's motive to lie in assessing credibility in sexual assault cases. How much weight can be attributed to that absence? Resolution of these questions has led to a surprisingly sizable number of appellate cases. R v Gerrard 2022 SCC 13 is now the leading case on the issue. It confirms somewhat cryptically that the absence of evidence of a motive to fabricate can be considered in assessing credibility. Clarity on the issue is still needed. In particular, what consitutes "proved absence" and/or evidence of an absence of motive. This piece argues that courts need to start afresh. If we better understand what courts are trying to get at by referencing the issue of motive as being "proved"and, we apply the everyday rules of evidence, was can escape from this confusing trap of trying to fit the issue into a particular box. When the cases talk abut proved absence (or presence) of motive, the phrase should be interpreted to mean that there is a sufficient and compelling evidentiary basis or foundation to allow for the conclusion or inference to be drawn. After setting out how the ordinary rules of evidence and policy support this principled approach to the issue, the article offers some model instructions on the issue.

Bernick on Fourteenth Amendment Confrontation

Evan D. Bernick (Northern Illinois University - College of Law) has posted Fourteenth Amendment Confrontation on SSRN. Here is the abstract:

 

Crawford v. Washington was initially hailed as a triumph—a much-needed reinvigoration of the Sixth Amendment right of criminal defendants “to be confronted with the witnesses against [them].” It has few supporters today, and criticisms of it have taken on heightened importance in the wake of constitutional decisions involving the “incorporation” of the Bill of Rights against the states. In NYSRPA v. Bruen the Supreme Court flagged an “ongoing scholarly debate” about whether incorporated rights should be applied as they were understood in 1791—when the Bill of Rights was ratified—or in 1868—when the Fourteenth Amendment incorporated them. Bruen thus broadened the scope of historical inquiry into a diminished precedent.

This is the first Article to explore the meaning of the right to confront witnesses during the antebellum struggle against slavery.

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Ismawansa et al. on Comparative Restorative Justice

Ismawansa, Madiasa Ablisar and Alvi Syahrin (Universitas Sumatera Utara, Universitas Sumatera Utara and Universitas Sumatera Utara) have posted Settlement of Criminal Cases through Restorative Justice in Japan and the United States of America: A Law Comparison on SSRN. Here is the abstract:

 

In solving criminal cases, restorative justice is often performed for juvenile offenders. The purpose of this study was to describe restorative justice in the United States and Japan. There are many terminologies used to describe the concept of restorative justice, such as communitarian justice, positive justice, relational justice, reparative justice, and community justice. As an alternative dispute resolution, the concept of restorative justice is highly suited for Indonesia and should be immediately implemented as an effort to reform the law. In Japan, restorative justice promotes apologies, provides compensation to victims, and instills a sense of guilt in the perpetrators. In the United States, the emphasis is on providing compensation to victims. This paper uses a comparative legal approach between Indonesia, Japan, and the United States. A legal approach is used to analyze criminal cases settled through restorative justice. The results showed that restorative justice is the essence of applied processes that encourage commutative justice. As a restorative justice approach, penal mediation is present in the Criminal Code Draft so that criminal cases do not depend on a judge's decision beforehand to be settled, encouraging the use of commutative justice.

Lubin on Ransomware

Asaf Lubin (Indiana University Maurer School of Law) has posted The Law and Politics of Ransomware (Vanderbilt Journal of Transnational Law, Vol. 55, 2022) on SSRN. Here is the abstract:

 

What do Lady Gaga, the Royal Zoological Society of Scotland, the city of Valdez in Alaska, and the court system of the Brazilian state of Rio Grande do Sul all have in common? They have all been victims of ransomware attacks, which are growing both in number and severity. In 2016, hackers perpetrated roughly 4,000 ransomware attacks a day worldwide, a figure which was already alarming. By 2020, however, “attacks leveled out at 20,000 to 30,000 per day in the US alone.” That is a ransomware attack every 11 seconds, each of which cost victims on average 19 days of network downtime and a payout of over $230,000. In 2021, global costs associated with ransomware recovery exceeded $20 billion.

This Article offers an account of the regulatory challenges associated with ransomware prevention.

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Loehr on Political Exclusion and the Excessive Punishments

Daniel Loehr has posted an abstract of Deference Despite Disenfranchisement: How Eighth Amendment Law Ignores Political Exclusion (Forthcoming, Journal of Criminal Law and Criminology, Vol. 113, No. 2, 2023) on SSRN. Here is the abstract:

The Eighth Amendment lies dormant in the age of mass incarceration. Over and over, the Supreme Court has held that for most people, the Eighth Amendment places no limit on extremely long sentences, even sentences of life without parole for simple marijuana possession. This Article shows how another phenomenon, widespread felony disenfranchisement, undermines the Court’s rationale for its Eighth Amendment austerity. The topics of felony disenfranchisement and Eighth Amendment law are both well represented in legal scholarship, but the implications of the former on the latter remain understudied.

To justify its retreat from enforcing the Eighth Amendment, the Court has repeated its belief that the legislative process is rational and legitimate and entitled to extreme deference.

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Smith on Countermajoritarian Criminal Law

Michael L. Smith (University of Idaho College of Law) has posted Countermajoritarian Criminal Law on SSRN. Here is the abstract:

 

Criminal law pervades American society, subjecting millions to criminal enforcement, prosecution, and punishment every year. All too often, culpability is a minimal or nonexistent aspect of this phenomenon. Criminal law prohibits a wide range of common behaviors and practices, especially when one considers the various federal, state, and municipal levels of law restricting people’s actions. Recent scholarship has criticized not only the scope and impact of these laws, but has also critiqued these laws out to the extent that they fail to live up to supermajoritarian ideals that underlie criminal justice.

This Article adds to and amplifies this criticism by identifying “countermajoritarian laws.”

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Reinert on Qualified Immunity

Alex Reinert (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Qualified Immunity's Flawed Foundation (California Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Qualified immunity has faced trenchant criticism for decades, but recent events have renewed focus on this powerful defense to liability for constitutional violations. This Article takes aim at the roots of the doctrine – fundamental errors that have never before been excavated. First, this Article demonstrates that the Supreme Court’s qualified immunity jurisprudence is premised on a flawed application of a dubious canon of statutory construction – namely that statutes in “derogation” of the common law should be strictly construed. Applying the Derogation Canon, the Court has held that 42 U.S.C. § 1983’s silence regarding immunity should be taken as an implicit adoption of common-law immunity defenses. As this Article shows, the Derogation Canon has no appropriate role to play in interpreting Section 1983. Its viability has been continuously called into question for more than a century. Even when it has been applied, the canon has been used as a reason to disfavor displacement of common-law claims, not common-law defenses. And it is always operating in tension with a contrary canon that remedial statutes, like Section 1983, should be given a broad reading.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Computer Crime Law (Introduction) Orin S. Kerr University of California, Berkeley School of Law Date Posted: 24 Jun 2022	304
2.	Sex Exceptionalism in Criminal Law Aya Gruber University of Colorado Law School Date Posted: 27 Jul 2022	241
3.	Medical Disobedience Dov Fox University of San Diego: School of Law Date Posted: 08 Aug 2022 [new to top ten]	214
4.	Criminal Terms Anna Roberts Brooklyn Law School Date Posted: 17 Jun 2022	108
5.	Vagueness and Federal-State Relations Joel S. Johnson Pepperdine University - Rick J. Caruso School of Law Date Posted: 06 Aug 2022 [new to top ten]	106
6.	Retributivism Mitchell N. Berman University of Pennsylvania Carey Law School Date Posted: 01 Jul 2022 [5th last week]	106
7.	Demonizing Our Sisters Through Epistemic Oppression Yvette Butler University of Mississippi - School of Law Date Posted: 22 Jul 2022	87
8.	Battle for Our Souls: A Psychological Justification for Corporate and Individual Liability for Organizational Misconduct Jennifer Arlen and Lewis A. Kornhauser New York University School of Law and New York University School of Law Date Posted: 19 Jul 2022 [9th last week]	75
9.	How To Read a Corporation's Mind Mihailis Diamantis University of Iowa - College of Law Date Posted: 22 Jul 2022 [8th last week]	74
10.	Limiting Rights to Protect Morality: Upholding Charter Values as a Pressing and Substantial Objective Mark Friedman and Anthony Sangiuliano York University - Osgoode Hall Law School and Sage School of Philosophy, Cornell University Date Posted: 16 Jun 2022	60

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Original Meaning of “Due Process of Law” in the Fifth Amendment Lawrence B. Solum and Max Crema University of Virginia School of Law and affiliation not provided to SSRN Date Posted: 10 May 2022	319
2.	Computer Crime Law (Introduction) Orin S. Kerr University of California, Berkeley School of Law Date Posted: 24 Jun 2022	304
3.	The Constitution and Criminal Justice Abhinav Sekhri Delhi High Court Date Posted: 10 Jun 2022	198
4.	AEDPA Repeal Brandon L. Garrett and Kaitlin Phillips Duke University School of Law and affiliation not provided to SSRN Date Posted: 21 Jun 2022	168
5.	Nullification in Abortion Prosecutions: An Equilibrium Theory Peter Salib and Guha Krishnamurthi University of Houston Law Center and University of Oklahoma College of Law Date Posted: 02 Jun 2022	156
6.	Plea Bargaining’s Uncertainty Problem Jeffrey Bellin William & Mary Law School Date Posted: 27 Apr 2022	149
7.	A Theory for Evaluating Evidence Against the Standard of Proof Kevin M. Clermont Cornell Law School Date Posted: 20 Jul 2022 [8th last week]	120
8.	Racially Territorial Policing in Black Neighborhoods Elise C. Boddie Rutgers School of Law - Newark Date Posted: 29 Mar 2022 [9th last week]	101
9.	Brief of Amici Curiae Five Excluded Jurors, Boys v. Louisiana (21-1110) Thomas Frampton University of Virginia School of Law Date Posted: 06 Apr 2022 [10th last week]	94
10.	Fourteenth Amendment Confrontation Evan D. Bernick Northern Illinois University - College of Law Date Posted: 06 Aug 2022 [new to top ten]	87

Kolar on Felony Murder Liability for Homicides by Police

Maria T. Kolar (Oklahoma City University School of Law) has posted Felony Murder Liability for Homicides by Police Officers: Too Unfair & Too Much to Bear (Journal of Criminal Law and Criminology, Vol. 113, Issue No. 2 (2023)) on SSRN. Here is the abstract:

 

On November 23, 2020, a fifteen-year-old boy was gunned down by five Oklahoma City police officers, after he exited a convenience store and dropped the gun that he and a sixteen-year-old partner had earlier used to rob the store’s owner. Initially, the boy’s non-present partner was charged with first-degree (felony) murder for this killing. But after months of efforts by the boy's mother and local activists, the district attorney also charged five officers with first-degree manslaughter.

This case raises the question of whether Oklahoma—or any American state—can convict a defendant of felony murder based upon a killing that was a criminal homicide by a police officer. More broadly, it raises the question of whether a felony “participant” can be convicted of felony murder based upon a killing by a “nonparticipant,” who killed while resisting the underlying felony. Killings by “nonparticipants” include killings by responding police officers, as well as by bystanders and victims of the original felony.

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Sarch on Divergences Between Moral and Criminal Blame

Alex F. Sarch (University of Surrey School of Law) has posted Legitimate Divergence between Moral and Criminal Blame (Routledge Handbook of Responsibility (Max Kiener, ed.), Forthcoming) on SSRN. Here is the abstract:

 

Legal moralists think the substantive rules of the criminal law should mirror morality, while acknowledging that they inevitably will not do so perfectly. Thus, Doug Husak suggests that “deviations [from the moral ideal] should be regarded as occasions for regret, as invitations to try to do better.” This is especially plausible where the divergences are isolated practical compromises due to efficiency or resource constraints. But is it always a matter of deep regret when the content of criminal law diverges from morality? Might this not also be justifiable based on our principled commitments? If so, perhaps divergence from morality isn’t always an invitation to do better. This chapter argues that there are principled reasons, not always consequentialist in nature, for the criminal law to come apart from morality.

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Diamantis et al. on Regulating AI

Mihailis Diamantis, Rebekah Cochran and Miranda Dam (University of Iowa - College of Law, University of Iowa and University of Iowa, College of Law) have posted AI and the Law: Can Legal Systems Help Us Maximize Paperclips While Minimizing Deaths? on SSRN. Here is the abstract:

 

This Chapter provides a short undergraduate introduction to ethical and philosophical complexities surrounding the law’s attempt (or lack thereof) to regulate artificial intelligence.

Swedish philosopher Nick Bostrom proposed a simple thought experiment known as the paperclip maximizer. What would happen if a machine (the “PCM”) were given the sole goal of manufacturing as many paperclips as possible? It might learn how to transact money, source metal, or even build factories. The machine might also eventually realize that humans pose a threat. Humans could turn the machine off at any point, and then it wouldn’t be able to make as many paperclips as possible! Taken to the logical extreme, the result is quite grim—the PCM might even start using humans as raw material for paperclips.

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Nesbitt et al. on Motives in Terrorism Offences

Michael Nesbitt, Leah West and Amarnath Amarasingam (University of Calgary, Faculty of Law, Carleton University - Norman Paterson School of International Affairs and Queen's University) have posted The Illusive Motive Requirement In Canada's Terrorism Offences: Defining and Distinguishing Ideology, Religion, and Politics ((Forthcoming 2023) Osgoode Hall Law Journal 60:3) on SSRN. Here is the abstract:

 

Canada distinguishes ‘ordinary crime’ from terrorism offences primarily by reference to whether an act meets the Criminal Code’s definition of ‘terrorist activity’. The most confusing and least understood element of terrorist activity is its motive requirement, that being that for a crime to constitute a terrorism offence the actor must be motivated by politics, religion, or ideology. How do we know when such a motive exists, or even how to define these motivations? How do we differentiate ordinary crime from terrorism if we do not know what ideologies or religions ‘count’ and which do not? Does an Incel adherent or far-right motive picked and chosen from numerous groups count? How about someone that is motivated to act violently by a belief in Qanon, or because of their commitment to a political protest movement? In this article we explain why the motive requirement is so in need of refinement and shed light on what differentiates ordinary crime from terrorism. To do so, we offer a comprehensive study of the legislative history behind Canada’s anti-terrorism criminal regime as well as every terrorism judgement, sentencing decision, and jury instruction issued between 2001-2021.

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Johnson on Vagueness and Federal-State Relations

Joel S. Johnson (Pepperdine University - Rick J. Caruso School of Law) has posted Vagueness and Federal-State Relations (Forthcoming, University of Chicago Law Review, Vol. 90, No. 6, 2023) on SSRN. Here is the abstract:

 

The void-for-vagueness concept is indefinite, and the way the Supreme Court articulates the doctrine exacerbates the problem. In addition, Justice Thomas has recently questioned the vagueness doctrine’s legitimacy in light of its late emergence as a constitutional doctrine. This article aims to clarify the doctrine’s content and defend its historical pedigree by drawing attention to a fundamental, yet under-explored, aspect of the Supreme Court’s vagueness decisions—that vagueness analysis significantly depends on whether the law at issue is a federal or state law. That distinction is simple, but it has considerable explanatory power.

As an historical matter, the federal-state distinction reveals that the constitutional doctrine emerged in the late-nineteenth century in response to two simultaneous changes in the legal landscape—first, the availability of Supreme Court due process review of state penal statutes under the Fourteenth Amendment and, second, a significant shift in how state courts construed those statutes.

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Zur on Learning by Not Getting Caught

Tom Zur has posted How Do People Learn from Not Being Caught? An Experimental Investigation of an 'Occurrence Bias' on SSRN. Here is the abstract:

The law and economics literature has long theorized that one of the goals of law enforcement is specific deterrence, which relies on the conjecture that imperfectly informed offenders learn about the probability of apprehension from their prior interactions with law enforcement agencies. Surprisingly, however, no empirical study has rigorously tried to identify the learning process that underlies the theory of specific deterrence and, more specifically, whether potential repeat offenders learn from getting caught in the same way as they learn from not getting caught. This paper presents novel evidence from a pre-registered randomized controlled trial that sheds new light on these questions. In each of the two stages of the experiment, participants could cheat for an increased monetary payoff at the risk of paying a fine, in the face of an uncertain chance of being audited. Using an incentive-compatible procedure, participants’ beliefs regarding the probability of being audited were rigorously elicited both before and after they were either audited or not audited, allowing us to establish the unique rational-Bayesian benchmark and any deviation thereof for each participant. We find that being audited induces a stronger adjustment in one’s estimate compared to the adjustment induced by not being audited, providing novel evidence for what we call an “occurrence bias.” We show that this occurrence bias reduces the specific deterrence effect. It also reduces the marginal benefit from investing in enforcement and thus lowers the optimal investment level.

Del Villar et al. on Assisted Suicide and "Mercy Killing" Sentences

Katrine Del Villar, Lindy Willmott and Ben White (Queensland University of Technology, Queensland University of Technology - Faculty of Law and Queensland University of Technology - Faculty of Law) have posted Voluntary Requests, or Vulnerable Adults? A Critique of Criminal Sentencing in Assisted Suicide and 'Mercy Killing' Cases (University of New South Wales Law Journal, Vol. 45, No. 2, 2022) on SSRN. Here is the abstract:

 

This article explores the criminal law’s response to cases of ‘mercy killing’ or assisting suicide, in which relatives or friends act outside the law to end the suffering of a loved one with a terminal or chronic illness. It examines the sentencing remarks in all the publicly reported Australian cases on assisted suicide and mercy killing since 1980. Pronounced leniency in sentencing is observed, across the spectrum of cases, which demonstrates a gap between the law on the books and the sentences imposed in practice. Judicial reasons for sentencing are analysed to elucidate themes, which confirm that many of the traditional aims of sentencing – such as specific deterrence, retribution or rehabilitation – are inapposite in cases involving compassion for the suffering of a loved one. The review also identifies inconsistent outcomes, both in charges laid and sentences imposed, which have the potential to undermine public confidence in the rule of law. The article concludes that criminal law simultaneously provides both too much protection and not enough protection for members of the community, and recommends law reform to enable judges to make a greater distinction between voluntary and non-voluntary assisted suicides and mercy killings.

Chase on Incarcerated Litigants' Access to Justice

Ashley Krenelka Chase (Stetson University - College of Law) has posted Let’s All Be . . . Georgia? Expanding Access to Justice for Incarcerated Litigants by Rewriting the Rules for Writing the Law (South Carolina Law Review, Vol. 74, Forthcoming) on SSRN. Here is the abstract:

 

In 2020, the United States Supreme Court paved the way for a statutory publishing scheme that would enhance access to primary (and some secondary) legal information – they highlighted Georgia’s statutory publishing process as a way to pull some secondary material into the public domain under the government edicts doctrine. To be clear, the Supreme Court set out to more clearly define the classification of government edicts under Copyright law and not to set forth a new publishing scheme for legal materials, but the result was a glimpse into how federal and state governments could approach the publication of legal information, so information can be consistently and equitably made available to incarcerated litigants in either a print or electronic format, thereby expanding access to the Courts.

Bhagat on Trafficking Borders

Ayushman Bhagat (Department of History, Geography and Social Sciences) has posted Trafficking Borders (Trafficking borders. Political Geography, 95, p.102598) on SSRN. Here is the abstract:

 

This article offers an empirically informed conceptualisation of trafficking borders as spaces of restriction and negotiation, contingently produced, encountered, and escaped along the mobility routes of the targets of trafficking discourse. The concept of trafficking borders advances critical literature that considers anti-trafficking measures a vehicle of state-authorised bordering practices by demonstrating social and political spaces where the trafficking discourse coalesces several discourses, institutions, and practices as borders. The article draws on participatory action research conducted in Nepal to demonstrate the presence of borders in spaces such as households, communities, government offices, Indo-Nepal state borders, emigration detention and deportation centres, and airports. These spaces contribute to the critical understanding of locations where anti-trafficking measures curtail the rights, mobility, and choices of prospective migrant workers. Prioritising research participants’ experiences of encounters with trafficking borders, the article underscores that borders are the central experience of migrant workers which they must escape to actualise their labour migration projects. The conceptualisation further attempts to position the emigration regime as an important site of theorisation and activism and demands a thorough consideration of the diverse struggles of the labour migrants before they arrive at their labour relations in the immigration regime.

Zeidman on Client Control of Lawyers' Decisions

Steven Zeidman (CUNY School of Law) has posted Whose Case is it Anyway? Florida v. Nixon and McCoy v. Louisiana: Pro-Defendant or Pro-Government? (American Bar Association Criminal Justice Section magazine (Vol. 37, Number 2 (2022))) on SSRN. Here is the abstract:

 

There are countless decisions that are made during a criminal case. Who is responsible for those decisions, the client or the lawyer? The issue is less pressing when the accused hires an attorney. If client and lawyer disagree, the client is free, relatively, to hire another attorney. In the far more common situation where counsel is appointed by the government, the client is generally not entitled to replace one lawyer with another, so the allocation of decision-making authority takes on paramount importance. Consider it this way – an indigent defendant has a Sixth Amendment right to counsel. They can, instead, decline counsel, proceed pro se, and make all the decisions in their case. If, however, the accused accepts what they are constitutionally entitled to, does that mean they thereby relinquish the right to control key aspects of their defense? This article examines two Supreme Court cases, Florida v. Nixon and McCoy v. Louisiana, that address this fundamental question but ultimately serve only to create more confusion.

Duff on Punishment as Communication

R. A. Duff (University of Stirling - Department of Philosophy) has posted Punishment as Communication (Oxford Handbook of Punishment Theory and Philosophy, ed. Jesper Ryberg, Forthcoming) on SSRN. Here is the abstract:

 

This chapter defends a communicative theory of punishment, as making plausible sense of the retributivist idea that wrongdoers should not enjoy impunity. In the context of criminal law, the wrongs that matter are public wrongs that concern the whole polity: the criminal law defines those wrongs, and provides for those who commit them to be called to formal public account, for them through the criminal process. That calling to account is a communicative process: it culminates in a conviction that censures the offender, and seeks an apologetic response from him. The punishment that typically ensues furthers this communicative exercise: the offender is required to undertake, or undergo, a penal burden that constitutes an apologetic reparation for his crime, and so communicates to him the need for such reparation. Central to this communicative conception is that punishment is a two-way process, which seeks an appropriate response from the offender, who has an active role in the process. The role of prudential deterrence in such an account is discussed: it is a necessary condition of a justifiable system that it has some dissuasive efficacy, and deterrence might be a dimension of that dissuasion—inextricably interwoven with the moral message that is the core of the communication. A purely communicative account that allows no room for deterrence might be implausible as an account of what human punishment ought to be; but one that portrays a two-way moral communication as the primary, distinctive aim of criminal punishment can be defended.