CrimProf Blog

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

Thursday, March 31, 2011

Chin on Videotaped Forensic Interviews in Child Sex Abuse Cases

Kimberly Y. Chin has posted 'Minute and Separate': Considering the Admissibility of Videotaped Forensic Interviews in Child Sexual Abuse Cases after Crawford and Davis (Boston College Third World Law Journal, Vol. 30, No. 1, 2010) on SSRN. Here is the abstract:

Child sexual abuse is one of the least prosecuted crimes in the United States in part because of the many evidentiary challenges prosecutors face. In 2004, the Supreme Court introduced a new standard for determining the admissibility of out-of-court statements made by declarants who are unavailable to testify at trial. In Crawford v. Washington, the Supreme Court held that testimonial statements are only admissible at trial if the declarant is unavailable to testify and there was a prior opportunity for cross-examination. This Note will examine Crawford’s impact on the admissibility of videotaped forensic interviews with child victims of sexual abuse and suggest that courts adopt a “minute and separate” approach when deciding whether statements contained in those interviews are testimonial in nature.

March 31, 2011 | Permalink | Comments (0)

Robinson on Coercive Indoctrination and "Rotten Social Background"

Robinson paul Paul H. Robinson (University of Pennsylvania Law School) has posted Are We Responsible for Who We Are? The Challenge for Criminal Law Theory in the Defenses of Coercive Indoctrination and ‘Rotten Social Background’ on SSRN. Here is the abstract:

Should coercive indoctrination or “rotten social background” be a defense to crime? Traditional desert-based excuse theory roundly rejects these defenses because the offender lacks cognitive or control dysfunction at the time of the offense. The standard coercive crime-control strategies of optimizing general deterrence or incapacitation of the dangerous similarly reject such defenses. Recognition of such defenses would tend to undermine, perhaps quite seriously, deterrence and incapacitation goals. Finally, the normative crime-control principle of empirical desert might support such an excuse, but only if the community’s shared intuitions of justice support it. The law’s rejection of such defenses suggests that there might be little popular support for them.

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March 31, 2011 | Permalink | Comments (0)

Wednesday, March 30, 2011

Pardo & Patterson on Neuroscience and Retributivism

Pardo michael Michael S. Pardo (pictured) and Dennis Patterson (University of Alabama School of Law and European University Institute) have posted Neuroscientific Challenges to Retributivism (THE FUTURE OF PUNISHMENT, Thomas Nadelhoffer, ed., Oxford University Press, Forthcoming) on SSRN. Here is the abstract:

We examine two recent challenges to retribution-based justifications for criminal punishment based on neuroscientific evidence. The first seeks to undermine retributivism because of the brain activity of subjects engaged in punishment decisions for retributive (as opposed to consequentialist) reasons. This challenge proceeds by linking retributivism with deontological moral theories and the brain activity correlated with deontological moral judgments. The second challenge seeks to undermine retributivism by exposing, through neuroscientific information, the purportedly implausible foundation on which retributivism depends: one based on free will and folk psychology.

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March 30, 2011 | Permalink | Comments (0)

Jacobi on the Law and Economics of the Exclusionary Rule

Jacobi tonja Tonja Jacobi (Northwestern University - School of Law) has posted The Law and Economics of the Exclusionary Rule on SSRN. Here is the abstract:

The exclusionary rule is premised on behavioral assumptions about how the law shapes police conduct. Using a law and economics approach, this Article draws out the implications of these assumptions. It shows: first, that in attempting to deter police violations, the rule actually encourages police harassment of ordinary citizens, particularly minorities; and second, when applied at trial, the rule decreases the benefit of the doubt that defendants who are most likely to be actually innocent can receive. Judicial attempts to mitigate these costs of the exclusionary rule in fact exacerbate them. The manifold jurisprudential rules that make up this area of law can be assessed in terms of the extent each effectively differentiates between the guilty and the innocent. Assessed in this way, it becomes clear that much of the secondary jurisprudence in search and seizure law further aggravates the problem.

March 30, 2011 | Permalink | Comments (0)

Green on Prosecutors' Ethical Duty of Disclosure

Green bruce Bruce A. Green (Fordham University School of Law) has posted Prosecutors’ Ethical Duty of Disclosure: In Memory of Fred Zacharias (San Diego Law Review, Forthcoming) on SSRN. Here is the abstract:

ABA Model Rule 3.8(d) establishes an ethical duty on the part of criminal prosecutors to “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused.” A 2009 opinion issued by the ABA’s ethics committee concluded that the rule does not simply restate prosecutors’ disclosure obligation under Brady v. Maryland, but requires prosecutors to disclose favorable evidence as soon as reasonably practicable without regard to the materiality of the information. In contrast, the Ohio Supreme Court held in 2010 that prosecutors’ ethical duty under Ohio’s version of Rule 3.8(d) was no more extensive than their legal obligation. This essay, written in memory of Fred Zacharias and drawing on his scholarship, examines these conflicting visions of prosecutors’ ethical duty. It argues that the two bodies had differing conceptions of the rule – to adopt Professor Zacharias’s terminology – as either a rule of role or an integrity rule. The essay concludes that the different visions may each be justified, but that even so, the inconsistency is not ideal and has implications for the processes by which ethics rules are drafted and adopted.

March 30, 2011 | Permalink | Comments (0)

Tuesday, March 29, 2011

Argument transcript in witness tampering case

The case is Fowler v. United States.

March 29, 2011 | Permalink | Comments (0)

Cert dismissed in case involving pre-existing identity documents found as result of Fourth Amendment violation

The case is Tolentino v. New York.

March 29, 2011 | Permalink | Comments (0)

Opinion on section 1983 liability for failure to train on Brady obligations

The case is Connick v. Thompson. Here is the syllabus:

Petitioner the Orleans Parish District Attorney’s Office concedes that, in prosecuting respondent Thompson for attempted armed robbery, prosecutors violated Brady v. Maryland, 373 U. S. 83, by failing to disclose a crime lab report. Because of his robbery conviction, Thompson elected not to testify at his later murder trial and wasconvicted. A month before his scheduled execution, the lab report was discovered. A reviewing court vacated both convictions, and Thompson was found not guilty in a retrial on the murder charge. He then filed suit against the district attorney’s office under 42 U. S. C. §1983, alleging, inter alia, that the Brady violation was caused by the office’s deliberate indifference to an obvious need to train prosecutors to avoid such constitutional violations. The district court held that, to prove deliberate indifference, Thompson did not need to show a pattern of similar Brady violations when he could demonstrate that the need for training was obvious. The jury found the district attorney’s office liable for failure to train and awarded Thompson damages. The Fifth Circuit affirmed by an equally divided court.

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March 29, 2011 | Permalink | Comments (0)

Monday, March 28, 2011

Slobogin & Fondacaro on Juvenile Justice in Flux

Slobogin_big Christopher Slobogin (pictured) and Mark R. Fondacaro, J.D., Ph.D. (Vanderbilt Law School and John Jay College - CUNY) have posted Juvenile Justice in Flux (JUVENILES AT RISK: A PLEA FOR PREVENTIVE JUSTICE, Oxford University Press, Forthcoming) on SSRN. Here is the abstract:

The current approach to the juvenile crime problem is insufficiently conceptualized and too beholden to myths about youth, the crimes they commit, and effective means of responding to their problems. The currently dominant punitive approach to juvenile justice, modeled on the adult criminal justice system, either ignores or misapplies current knowledge about the causes of juvenile crime and the means of reducing it. We argue that, with some significant adjustments that take this new knowledge into account, the legal system should continue to maintain a separate juvenile court, but one that is preventive in orientation, with a new emphasis on both rehabilitation and flexible procedures. The view that culpability should be the linchpin of juvenile justice (touted by liberals as well as conservatives) is misguided, not only because it leads to unnecessarily harsh punishment but also because it deemphasizes crime-reducing interventions and undermines the case for handling adolescent offenders through a system that is independent of the culpability-based adult system. The currently popular view that adult-type procedures should govern the juvenile process is also open to serious doubt, given social science research that questions the extent to which such procedures promote accuracy and fairness. Chapter 1, which elaborates on the book’s thesis, is provided here.

March 28, 2011 | Permalink | Comments (0)

Risinger & Risinger on Innocence and Criminal Procedure

Risinger_michael_lg2 D. Michael Risinger (pictured) and Lesley C. Risinger (both of Seton Hall University School of Law) have posted Innocence is Different: Taking Innocence into Account in Reforming Criminal Procedure (New York Law School Law Review, Vol. 56, No. 3, 2011) on SSRN. Here is the abstract:

It has often been said that "death is different," meaning at a minimum that the ultimate finality of the death penalty requires both special standards for its imposition and special care in applying those standards. But what has generally been overlooked is that "innocence is different" also. What we mean by this is that the protection of the actually innocent from conviction should be a paramount goal of the criminal justice system against which all procedural rules and policies should be judged. Despite the traditional rhetoric that recognizes this, too often the protection of the innocent takes a back seat to other goals, such as the conviction of the guilty - or even, ironically, the protection of the guilty.

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March 28, 2011 | Permalink | Comments (1)

Wood, Burris et al on Police Interventions with Persons Affected by Mental Illness

Burris_scott Jennifer Wood , Jeffrey W. Swanson , Scott Burris (pictured) and Allison Gilbert (Temple University , Duke University - Department of Psychiatry & Behavioral Sciences , Temple University - James E. Beasley School of Law and Duke University) have posted Monograph: 'Police Interventions with Persons Affected by Mental Illnesses' on SSRN. Here is the abstract:

Mental illnesses and substance abuse disorders constitute a global public health problem of enormous proportions. Developing and implementing cost-effective interventions to improve the lives of people with mental illnesses and comorbid substance abuse disorders remains a challenge for multiple, interfacing service systems, from public health to social welfare to law enforcement, the courts, and corrections.

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March 28, 2011 | Permalink | Comments (0)

"Davis innocence plea rejected"

From ScotusBlog:

The Supreme Court, without a noted dissent, on Monday cleared the way for the state of Georgia to carry out the execution of Troy Anthony Davis of Savannah, rejecting five different ways that Davis’s lawyers had sought to press his claim that he did not commit a 1989 murder of an off-duty policeman.   In three brief orders, none of which contained any explanation, the Court brought to a sudden end a two-decades-long campaign to spare Davis’s life, on the theories that most of those who testified against him have recanted and that another man did the killing, and has since admitted it.

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March 28, 2011 | Permalink | Comments (1)

Sunday, March 27, 2011

Top-Ten Recent SSRN Downloads

Ssrn logo in criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 482 An Equilibrium-Adjustment Theory of the Fourth Amendment
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: January 26, 2011
2 419 Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force
Robert Chesney,
University of Texas School of Law,
Date posted to database: February 4, 2011
3 336 EU Antitrust Enforcement Powers and Procedural Rights and Guarantees: The Interplay Between EU Law, National Law, the Charter of Fundamental Rights of the EU and the European Convention on Human Rights
Wouter P. J. Wils,
European Commission,
Date posted to database: February 12, 2011 [4th last week]
4 274 Emotion, Neuroscience, and Law: A Comment on Darwin and Greene
John Mikhail,
Georgetown University - Law Center,
Date posted to database: February 14, 2011 [6th last week]
5 270 Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause
Jordan M. Barry,
University of San Diego - School of Law,
Date posted to database: February 11, 2011
6 254 Sorting Guilty Minds
Francis X. Shen, Morris B. Hoffman, Owen D. Jones, Joshua D. Greene, Rene Marois,
Vanderbilt Law School, Second Judicial District (Denver), State of Colorado, Vanderbilt University - Law School & Department of Biological Sciences, Harvard University, Department of Psychology, Vanderbilt University - Department of Psychology,
Date posted to database: February 24, 2011 [7th last week]
7 246 'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences
Alison Siegler, Barry Sullivan,
University of Chicago Law School, Loyola University Chicago School of Law,
Date posted to database: January 27, 2011 [8th last week] 
8 213 Brain Scans as Evidence: Truths, Proofs, Lies, and Lessons
Francis X. Shen, Owen D. Jones,
Vanderbilt Law School, Vanderbilt University - Law School & Department of Biological Sciences,
Date posted to database: February 24, 2011 [9th last week]
9 209 Discretion and Prioritisation in Public Antitrust Enforcement, in Particular EU Antitrust Enforcement
Wouter P. J. Wils,
European Commission,
Date posted to database: February 12, 2011 [new to top ten]
10 181 Reducing Mass Incarceration: Lessons from the Deinstitutionalization of Mental Hospitals in the 1960s
Bernard E. Harcourt,
University of Chicago - Law School,
Date posted to database: January 27, 2011

March 27, 2011 | Permalink | Comments (0)

Next week's criminal law/procedure argument

Issue summary is from ScotusBlog:


  • Fowler v. US: Whether, to prove a criminal violation of the federal witness tampering statute when a defendant allegedly kills a witness, the government must prove that the victim would have provided information regarding a crime to a court or law enforcement.

March 27, 2011 | Permalink | Comments (0)

Friday, March 25, 2011

Boruchowitz on Diverting and Reclassifying Misdemeanors

Boruchowitz robert Robert C. Boruchowitz (Seattle University School of Law) has posted Diverting and Reclassifying Misdemeanors Could Save $1 Billion Per Year: Reducing the Need for and Cost of Appointed Counsel (American Constitution Society for Law and Policy, December 2010) on SSRN. Here is the abstract:

Reclassifying and diverting marijuana possession, driver's license suspension and other misdemeanors could save the indigent defense system as much as $1 billion per year, allowing overworked criminal defenders to devote time and resources to those charged with more serious crimes.

March 25, 2011 | Permalink | Comments (0)

Fines on Criminal Activities and Ethical Responsibilities

Barbara Glesner Fines (University of Missouri at Kansas City - School of Law) has posted Criminal Activities and Ethical Responsibilities (Family Advocate, Vol. 33, No. 4, Spring 2011) on SSRN. Here is the abstract:

This article addresses the question of a lawyers professional responsibility when a seemingly simple domestic relations case begins to turn into a major criminal catastrophe. Starting with ABA Model Rule 1.2(d) that an attorney “shall not counsel or assist in criminal or fraudulent conduct but may discuss the legal consequences of proposed conduct…”it analyzes the attorney’s responsibilities in the context of a hypothetical case involving hidden assets and misrepresented financial statements. Options to withdraw under Model Rule 1.16(b) are discussed along with the questions raised therefrom and the lawyer’s Model Rule 4.1(b) obligation not to knowingly fail to disclose material facts. From there the nightmare turns criminal as the hypothetical client is indicted raising issues ranging from emergency lawyering under Model Rule 1.1 to the lawyers own fees being subject to forfeiture. In conclusion it is nearly impossible to screen out every client who may bring criminal activities into family law representation. However, with careful research, clear communication, and documentation, a lawyer will be able to find a route out of the nightmare without being caught up in the criminal activity itself.

March 25, 2011 | Permalink | Comments (0)

Thursday, March 24, 2011

Maclin & Mirabella on Framing the Fourth

Tracey Maclin and Julia Grace Mirabella (Boston University - School of Law and Boston University School of Law) have posted Framing the Fourth (Michigan Law Review, Vol. 109, pp. 1049-1076, April 2011) on SSRN. Here is the abstract:

Book Review of "The Fourth Amendment: Origins and Original Meaning", 602-1791. By William J. Cuddihy. Oxford and New York: Oxford Press. 2009. Pp. lxviii, 940. $165.

History is again an important element of the Supreme Court’s Fourth Amendment analysis. In Wyoming v. Houghton, Justice Scalia’s opinion for the Court announced that a historical inquiry is the starting point for every Fourth Amendment case. William Cuddihy’s book on the origins and original meaning of the Fourth Amendment will undoubtedly assist the Justices (and everyone else) in understanding the history of search and seizure law.

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March 24, 2011 | Permalink | Comments (0)

Carodine on "Untried Conviction" Impeachment

Carodine montre Montré Denise Carodine (University of Alabama - School of Law) has posted Keeping it Real: Reforming the ‘Untried Conviction’ Impeachment Rule(Maryland Law Review, Vol. 69, p. 501, 2010) on SSRN. Here is the abstract:

There is a growing call for a “New Legal Realism,” that, among other things, takes a “bottom-up” approach to studying the effects of rules of law on the people to whom they actually apply on a day-to-day basis. The New Legal Realism movement spans across various fields and disciplines related to law. The movement is particularly evident in the area of criminal law where there is an increasing effort to ensure reliability and accuracy in the system’s results. The recent move of some states to require racial impact statements for pending legislation as well as the advocacy and findings of the innocence movement exemplify this effort. Even more compelling are the recent lawsuits filed by public defenders in several states, citing their inability to represent their clients in a constitutionally effective manner and demanding to have their caseloads reduced until they can be adequately funded. This Article aids in the effort to improve our justice system’s reliability, taking a New Legal Realist approach to the area of evidence law as applied in the criminal setting.

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March 24, 2011 | Permalink | Comments (0)

Dervan on the DOJ and Corporate Criminal Liability

Dervan lucian Lucian E. Dervan (Southern Illinois University School of Law) has posted Re-Evaluating Corporate Criminal Liability: The DOJ’s Internal Moral Culpability Standard for Corporate Criminal Liability (Stetson Law Review, Forthcoming) on SSRN. Here is the abstract:

This article examines the common law respondeat superior test for corporate criminal liability and proposes that it be expanded beyond the current two prong test to encompass a third prong regarding moral culpability. Further, this article supports this proposal by noting that the Department of Justice has already incorporated a moral culpability element into its analysis of corporate criminal liability through application of the Department’s Principles of Federal Prosecution of Business Organizations. While some might argue that one should be satisfied that the Department of Justice has seen fit to implement a new corporate criminal liability standard on its own volition, there are two fundamental flaws with allowing the status quo to suffice. First, while the government’s consideration of the Principles of Prosecution may be “mandatory,” these guidelines create no legal rights for corporate defendants. Second, the Principles of Prosecution contain elements for consideration that are outside the applicable scope of inquiry because they examine actions by the corporation that occur after the criminal conduct under scrutiny. As such, this article proposes a revised common law respondeat superior test that focuses the analysis of whether the corporation is morally culpable on a refined and appropriately limited group of pre-offense and offense specific factors.

March 24, 2011 | Permalink | Comments (0)

Wednesday, March 23, 2011

Berry on the European Prescription for Ending the Death Penalty

Berry william William W. Berry III (University of Mississippi School of Law) has posted The European Prescription for Ending the Death Penalty on SSRN. Here is the abstract:

The United States of America remains the only Western democracy that continues to use capital punishment. Europeans, particularly in the academic community, continue to express outrage and disbelief at its persistence, especially given America’s twentieth century role as the world leader in challenging abuses of human rights.

This sociological question – why the United States retains the death penalty – has spawned a burgeoning academic literature. This literature has both deepened cultural understandings of the death penalty and raised questions concerning the degree to which (and in what ways) the United States is “exceptional” when compared to other Western democracies.

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March 23, 2011 | Permalink | Comments (0)