CrimProf Blog

Wittlin on Extrapolating from Jurors to Juries

Maggie Wittlin has posted The Results of Deliberation on SSRN. Here is the abstract:

Social scientists have used mock juror studies to produce a vast body of literature showing how different variables influence juror decision-making. This paper presents a computer model that extrapolates findings about jurors to juries, showing how variables of interest affect the decisions not only of individuals but also of deliberative bodies. The computer model simulates jurors from a specified community, imputes initial votes to them conditional on a user-specified model, and uses Robert MacCoun’s new “social burden of proof” framework to predict the likelihood that the jury will come out for either side, given those initial votes. The paper then demonstrates the usefulness of the model by applying it to the Cultural Cognition Project’s study of the factors that influence the verdict in acquaintance rape cases. I argue that by extrapolating findings about jurors to juries, this model could prove useful to prosecutors, policy-makers, and legal scholars.

MacCoun on the Dutch Cannabis Experience

Robert MacCoun (University of California, Berkeley - Jurisprudence and Social Policy Program) has posted What Can We Learn from the Dutch Cannabis Coffeeshop System? on SSRN. Here is the abstract:

Aims: To examine the empirical consequences of officially tolerated retail sales of cannabis in the Netherlands, and possible implications for the legalization debate.

Methods: Available Dutch data on the prevalence and patterns of use, treatment, sanctioning, prices, and purity for cannabis dating back to the 1970s are compared to similar indicators in Europe and the USA.

Results: The available evidence suggests that the commercialization of cannabis probably increased the prevalence of use, but only modestly, and it does not appear to encourage escalation into heavier use or the use of other drugs.

Conclusions: Perhaps because the Dutch maintain a prohibition at the production level, prices have remained high. This may have kept consumption lower than what might be expected in an unrestricted market. Thus, the Dutch system serves as a nuanced alternative to both full prohibition and full legalization.

Uphoff on Physical Evidence of Cime and the ABA Standards

Rodney J. Uphoff (University of Missouri School of Law) has posted The Physical Evidence Dilemma: Does ABA Standard 4-4.6 Offer Appropriate Guidance? (Hastings Law Journal, Vol. 62, p. 1177, 2011) on SSRN. Here is the abstract:

Since 1966, when criminal defense lawyer Richard Ryder was disciplined for retaining physical evidence that connected his client to a bank robbery, lawyers and courts have struggled with the ethical dilemma of how defense lawyers should deal with physical evidence that potentially incriminates one of their clients. When a lawyer takes possession of an evidentiary item, must she always turn it over to the authorities, as required by most courts that have addressed this dilemma? Or, can defense counsel return the evidence to the source from whom counsel received it as recommended by Standard 4-4.6 of the ABA Criminal Justice Standards for Prosecution and Defense Functions?

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Criminal Liability for Unusual Art Forger? (Kolber)

Originally posted to Prawfs:

According to this NYT article, Mark Landis has repeatedly forged artwork and presented it to museums as the real thing.  The tricky issue for legal scholars is that he donates his paintings:

Mr. Landis — often under his own name, though more recently as Father Scott or as a collector named Steven Gardiner — has indeed done a lot of traveling over the past two decades, but not for the church. He has been one of the most prolific forgers American museums have encountered in years, writing, calling and presenting himself at their doors, where he tells well-concocted stories about his family’s collection and donates small, expertly faked works, sometimes in honor of nonexistent relatives.

Unlike most forgers, he does not seem to be in it for the money, but for a kind of satisfaction at seeing his works accepted as authentic. He takes nothing more in return for them than an occasional lunch or a few tchotchkes from the gift shop. He turns down tax write-off forms, and it’s unclear whether he has broken any laws. But his activities have nonetheless cost museums, which have had to pay for analysis of the works, for research to figure out if more of his fakes are hiding in their collections and for legal advice. (The Hilliard said it discovered the forgery within hours, using a microscope to find a printed template beneath the paint.)

Does anyone want to take a stab at his criminal liability in the comments, assuming the allegations are true?  The article states that he received an "occasional lunch or a few tchotchkes," but you might also comment on his liability in cases where he received nothing at all.  For example, is this criminal mischief?

-AJK

Turkay on Evidence Disclosure and Severity of Punishment

Evsen Turkay (Vassar College - Department of Economics) has posted Evidence Disclosure and Severity of Punishments on SSRN. Here is the abstract:

The relationship between legal offenses and punishment is well studied by scholars of sociology, economics and law. Economists contend that punishment is a cost of committing an offense, hence an increase in the severity of punishments should decrease incentives to commit legal offenses. And the efficiency of legal punishments are studied generally from this perspective: giving efficient incentives to commit legal offense. This paper studies the relationship between punishment and evidence disclosure in a game theoretical model. A defendant is trying to persuade a judge by presenting evidence to take a favorable legal action rather than less favorable ones on his case. I show that the equilibrium disclosure of the defendant is not affected by a change in the scale of legal actions when there is no uncertainty on how the judge evaluates evidence. With uncertainty, however, the defendant can be induced to disclose more information by decreasing the severity ratio of the most unfavorable legal action to the most favorable one. This shows that in the more realistic case of uncertainty the severity of punishments has an effect on evidence disclosure and efficiency of punishment schedule should be analyzed by internalizing its effect on evidence disclosure as well.

Slobogin on Comparative Empiricism and Police Investigative Practices

Christopher Slobogin (Vanderbilt Law School) has posted Comparative Empiricism and Police Investigative Practices on SSRN. Here is the abstract:

Comparative empiricism is an empirical assessment of the relative effectiveness of different nations’ regulatory regimes. In the law enforcement context, this type of assessment might be the only realistic means of determining the combination of mechanisms that best protects against government over-reaching without unduly stymying good police-work. Domestic research that attempts to explore differing regulatory approaches either occurs in experimental settings that undermine generalizability or is constrained by national laws that prohibit or limit the ability to manipulate investigatory rules. In contrast, the significant country-by-country differences in approaches to police regulation, combined with the relatively consistent demands of police work across countries, provide a naturalistic setting for testing the effectiveness of a wide array of rules. In particular, comparative empirical work that uses the same metric for gauging effectiveness – this article proposes “hit rates” for searches and seizures and confession and clearance rates for interrogations – can provide a unique source of information to policymakers. After describing the law of search and seizure and interrogation in four European countries, Australia and the United States, this article examines the newest research studying the effects of these rules and lays out an empirical agenda.

Works-in-progress roundtable on criminal punishment

The formal call for submissions will come out later this summer for a works-in-progress roundtable to be held on the afternoon of Oct. 27 at the ABA-AALS joint conference "Reducing Our Reliance on Incarceration," October 27-28, in D.C. Those with questions now may contact Giovanna Shay at [email protected].

The Experiential Gap Between Tort and Criminal Law (Kolber)

Tort law pays quite a bit of attention to bad experiences.  Pain and suffering are taken seriously, both in terms of actual doctrine (we are instructed to compensate individual plaintiffs for the amount of pain and suffering they experience) and our justifications of doctrine (to provide corrective justice one must compensate for tortiously caused pain and suffering and to appropriately deter bad behavior, we need to consider the experiential harms those behaviors are likely to cause).  

Granted, it is difficult to identify physiological markers of current or past experiences like pain and suffering, so it is not surprising that tort law often resorts to rough proxy measurements (by considering, for example, whether plaintiffs were in a zone of danger or had physical manifestations of distress).  These inexact proxies for bad experiences reduce the likelihood that litigants will invent or exaggerate their symptoms.  But at least in tort contexts, the law purports to care about individualized measurements of harm.  If a person is falsely imprisoned, he can sue for the amount of harm that he experienced.  There is no general formula that converts objective measurements, like the number of hours falsely imprisoned and the dimensions of confinement, into amounts of compensation (see here at 1574).

Though we frequently fail to recognize it, experiences also matter in criminal contexts.  Technologies better able to assess experience can help us decide when a crime occurred, how blameworthy the perpetrator was, and how much punishment he should receive.  If we can measure the harm of, say, false imprisonment to individual tort plaintiffs (who have incentives to lie), then we can calculate the severity of confinement experienced by particular prisoners.  Moreover, we usually say that criminal defendants are entitled to more process than tort plaintiffs, not less.  While we presumably don’t want to spend the money to make such assessments of prisoners, we should not pretend that rough subjective assessments are impossible: they just cost more than we are willing to spend.

(Adapted from this article, pp.647-48 (UPDATED) and originally posted here).

-AJK

Today's criminal law/procedure cert grant

Issue summary is from ScotusBlog, which links to papers and opinion below:

• Williams v. Illinois: Whether the Court should grant certiorari to review the Illinois Supreme Court's judgment that a testifying expert's reliance on the results of DNA analysis conducted at a private laboratory did not implicate the Confrontation Clause because references to the data generated by non-testifying analysts was offered not for the truth of the matter asserted, but rather for the non-hearsay purpose of explaining the basis of the expert's own, independent opinions.

Subjective Experience and the Federal Sentencing Guidelines (Kolber)

Originally posted to Prawfsblawg. Incidentally, the bleg at the end of this post is still a live one:

In The Subjective Experience of Punishment, I argued that we ought to take better account of the different ways in which offenders experience punishment.  I noted, however, that the federal sentencing guidelines make it difficult for judges to do so by advising them not to consider a variety of offender characteristics that could inform their expectations about how prisoners will experience incarceration.  For example, the 2009 federal sentencing guidelines state that: “Age (including youth) is not ordinarily relevant in determining whether a departure is warranted,” U.S. Sentencing Guidelines Manual § 5H1.1 (2009); “[m]ental and emotional conditions are not ordinarily relevant in determining whether a departure is warranted,” unless they affect culpability, id. § 5H1.3; and “[p]hysical condition or appearance, including physique, is not ordinarily relevant in determining whether a departure may be warranted,” id. § 5H1.4.

Just a few months ago, however, amendments to the guidelines took effect and now make it easier for judges to consider such offender characteristics.  As I point out in this article (p. 638 (UPDATED)), the 2010 Federal Sentencing Guidelines state that: “Age (including youth) may be relevant in determining whether a departure is warranted if considerations based on age, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines.”  U.S. Sentencing Guidelines Manual § 5H1.1 (2010) (emphasis added).  Similar revisions were made to provisions covering other offender characteristics, including their “[m]ental and emotional conditions,” id. § 5H1.3, and “[p]hysical condition or appearance,” id. § 5H1.4.

I'm not suggesting that the guidelines were amended in order to allow judges to better take subjective experience into account.  Nevertheless, I think that's a side effect of the amendments.  Incidentally, if you know of any active cases that clearly or dramatically implicate  concerns about the differential ways in which offenders experience punishment (like the recent case of a 6'9'', 500+ pound Dutch "giant"), I'd love to hear about them by email.

-AJK

Bowers on Prosecutorial Caseloads

Joshua Bowers (University of Virginia (UVA), School of Law) has posted Physician, Heal Thyself: Discretion and the Problem of Excessive Prosecutorial Caseloads, a Response to Adam Gershowitz and Laura Killinger (Northwestern University Law Review Colloquy, Forthcoming) on SSRN. Here is the abstract:

In a forthcoming article, entitled "The State (Never) Rests: How Excessive Prosecutorial Caseloads Harm Criminal Defendants," Adam Gershowitz and Laura Killinger identify and explore an almost unconsidered problem - excessive prosecutorial caseloads. In this response, I flag two significant shortcomings with their otherwise valuable contribution. First, the authors overstate the perceived problem. Specifically, their data do not demonstrate either endemic excessive prosecutorial caseloads or consequent harm to defendants’ interests. Second, the authors may miss the root problem altogether. Specifically, they fail to consider that excessive prosecutorial caseloads are partially a product of prosecutors’ inadequate exercise of charging discretion. On this reading, the caseload burden is more symptom than pathology, and the authors’ proposed solution - to better fund prosecution offices - may serve only to generate still higher prosecutorial caseloads.

Ferzan on Self-Defense, Permissions, and the Means Principle

Kimberly Kessler Ferzan (Rutgers, The State University of New Jersey - School of Law - Camden) has posted Self-Defense, Permissions, and the Means Principle: A Reply to Quong (Ohio State Journal of Criminal Law, Vol. 8, No. 2, 2011) on SSRN. Here is the abstract:

In “Killing in Self-Defense” (119 Ethics 507 (2009)), Jonathan Quong claims that one may kill innocent aggressors and threats in self-defense, but he denies that it follows from his position that innocent bystanders may also be killed when one acts defensively. Quong argues that defenders have an agent-relative permission to favor their own lives over others’. However, there are moral constraints, including that one may not “use someone as a mere means,” and Quong claims that it is this constraint that prohibits the killing of innocent bystanders. To reach this conclusion, Quong construes the “means principle” quite broadly to include not only the using of a person but also the using of that person's space. Quong therefore maintains that it is impermissible to shove a bystander out of an alcove so that you can squeeze into it, causing a runaway trolley to hit him instead of you, because you are using the bystander as a mere means when you use his space in the alcove.

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Manning on Photographers' Rights and Law Enforcement

Morgan Leigh Manning has posted Less than Picture Perfect: The Legal Relationship between Photographers' Rights and Law Enforcement (Tennessee Law Review, Vol. 78, p. 105, 2010) on SSRN. Here is the abstract:

Threats to national security and public safety, whether real or perceived, result in an atmosphere conducive to the abuse of civil liberties. History is littered with examples: The Alien and Sedition Acts of 1798, the suspension of habeas corpus during the Civil War, the Palmer Raids during World War I, and McCarthyism in the aftermath of World War II.Unfortunately, the post-9/11 world represents no departure from this age-old trend. Evidence of post-9/11 tension between national security and civil liberties is seen in the heightened regulation of photography; scholars have labeled it the "War on Photography" - a conflict between law enforcement officials and photographers over the right to take pictures in public places. A simple Google search reveals countless incidents of overzealous law enforcement officials detaining or arresting photographers and, in many cases, confiscating their cameras and memory cards, despite the fact that these individuals were in lawful places, at lawful times, partaking in lawful activities.

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Pritikin & Ross on Underenforcement of Corporate and White-Collar Fines and Penalties

Martin H. Pritikin (pictured) and Ezra Ross (Whittier Law School and affiliation not provided to SSRN) have posted The Collection Gap: Underenforcement of Corporate and White-Collar Fines and Penalties (Yale Law & Policy Review, Vol. 29, p. 453, 2011) on SSRN. Here is the abstract:

Civil and criminal monetary sanctions (fines, penalties, and restitution orders) are primary tools in the enforcement activities of the modern administrative state, particularly in the context of corporate wrongdoing. Although the enforcement literature debates the fairness and efficiency of imposing corporate sanctions, once imposed, those sanctions must be collected to be effective. Yet federal and state agencies are leaving untold billions in collectible fines unrecovered. This is a problem of both theoretical and practical importance, yet it has been largely overlooked. This Article, for the first time, amasses the evidence of pervasive governmental undercollection; rebuts the argument that the problem is due to factors beyond governmental control; examines the root causes of undercollection; and recommends solutions that address the political and economic circumstances that impede reform.

Today's criminal law/procedure cert grants

Issue summaries are from ScotusBlog, which links to papers and opinions below:

• Martel v. Clair: Whether a condemned state prisoner in federal habeas corpus proceedings is entitled to replace his court-appointed counsel with another court-appointed lawyer just because he expresses dissatisfaction and alleges that his counsel was failing to pursue potentially important evidence.
• Messerschmidt v. Millender: (1) Whether police officers are entitled to qualified immunity when they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her? (2) Whether United States v. Leon, 468 U.S. 897 (1984), and Malley v. Briggs, 475 U.S. 335 (1986), should be reconsidered or clarified?
• United States v. Jones: 1)Whether the warrantless use of a tracking device on petitioner’s vehicle to monitor its movements on public streets violated the Fourth Amendment. 2) Whether the government violated the respondent’s Fourth Amendment rights by installing the tracking device without a valid warrant and without his consent.

"Jury Finds Blagojevich Guilty of Corruption"

From the New York Times:

The jury — 11 women and 1 man — took 10 days to reach their decision. The jury in the first trial deliberated for 14 days.

After that trial, jurors said the case had been too tangled and confusing, and it was clear that prosecutors took that message to heart. In the new trial, which began in April, prosecutors offered fewer, simpler charges, a notably boiled-down message, and a emphasis on the thought that Mr. Blagojevich did not need to actually complete any deals to be found guilty of crimes for proposing them.

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Lie Detection and the Technological Look-Back Principle (Kolber)

This week, I will be reprinting some criminal-law-related posts that I wrote during my last guest stint at Prawfsblawg.com.  Here is the first:

Over the last decade, neuroscientists have made significant strides toward using various brain imaging techniques to determine when a subject is lying.    The research is still at early stage, however, and has principally involved rather artificial experimental settings (e.g., college students instructed to lie about the suit of a playing card).  If you ask most neuroscientists, they will say that we are quite far from having an all-purpose technique that can provide admissible evidence in court.  Indeed, a couple of courts have already refused to admit brain imaging evidence of credibility/deception (see Wilson, Semrau).

In my view, the test of whether we should admit some technology in court depends on whether, by introducing the technology, we achieve better outcomes overall.  That's a very difficult determination to make.  It depends on the quality of the science, the ability of judges and jurors to interpret the science, financial costs associated with the technology, various risks of abuse, and so on.  And there is a fair question about what legal standard judges should use to achieve our overarching goal.  But surely, as Fred Schauer points out, the technology need not be perfect to be helpful in real world forensic settings.

Even if we are still a long way away from developing reliable lie detectors, there is a substantial probability that we will have reasonably good lie detectors within the next thirty years.  Those prospects should arguably change our behavior even today.  For in thirty years, we can surely ask you about your conduct over the course of your lifetime: Have you ever cheated on your taxes?  Have you ever cheated on your spouse?  Did you bury the body by the river? 

Under what I describe here (at p.603-04--UPDATED) as the technological "look-back principle," we should already consider the privacy protections we are likely have in the future in order to decide how to behave today.  (At least until we develop good means of forgetting what we already know!)

Of course, not all of our privacy interests are amenable to legal regulation.  Nothing will stop your lover from testing your fidelity in a brain scanner as a condition of continuing the relationship.  Many campaigning politicians already disclose their tax returns, even when they have no legal obligation to do so.  Perhaps, someday, politicians will agree to be scanned while they answer questions like: Have you ever knowingly misreported campaign funds?  Have you ever accepted a bribe?  Did you bury the body by the river?  No doubt many criminal offenders were surprised by the look-back potential of DNA.  Perhaps we'll all be taken by surprise, someday, by the look-back potential of lie detectors.

-AJK

Hamilton on Involuntary Actions and PTSD

Melissa Hamilton (University of South Carolina - School of Law) has posted Reinvigorating Actus Reus: The Case for Involuntary Actions by Combat Veterans with Post-Traumatic Stress Disorder (Berkeley Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

In common law, criminal culpability rests on two basic foundations of criminal intent, or mens rea, and a voluntary act, which comprises the actus reus. While much of the litigation in criminal cases concerns assigning the appropriate mens rea concept to the particular defendant’s mental state, relatively little debate focuses on the element of actus reus. Indeed, case law and commentators generally have devoted scant attention to fleshing out the voluntary act concept despite the historical consensus of both utilitarians and retributivists that one should not be considered morally or legally culpable for his or her involuntary actions. This paper conceptualizes an overall need to reinvigorate the actus reus requirement as a fundamental principal of criminal culpability. It does so by employing a contemporary problem facing the criminal justice system of combat veterans with Post-Traumatic Stress Disorder (PTSD) who commit acts of unlawful violence, including homicide, either in reflexive actions or during dissociative states triggered by re-experiencing combat-related stresses. While the veterans are often convicted of criminal offenses, studies on PTSD substantively support an argument that such violence may actually be conceptualized as automatism and, therefore, should not qualify as voluntary acts justifying criminal culpability. For example, mental health professionals describe PTSD as a neuropsychiatric disorder that involves hypervigilance, and hyperreactivity. Modern combat training is a likely correlate with its emphasis on muscle memory and reflexive responsiveness in the use of lethal weapons, which are adaptive, survival behaviors in the field of battle. The relationship to automatism is also evident in that PTSD is not merely a cognitive disorder as studies have shown PTSD-related alterations to brain structure and function and neurophysiological performance. Thus, this contemporary problem of PTSD in veterans due to wartime service provides a fresh perspective on which to reconsider the importance of the voluntary act requirement of criminal law.

Turner on Bargaining in Weak Cases

Jenia Iontcheva Turner (Southern Methodist University (SMU) - Dedman School of Law) has posted Prosecutors and Bargaining in Weak Cases: A Comparative View
(TRANSNATIONAL PERSPECTIVES ON PROSECUTORIAL POWER, Erik Luna, Marianne Wade, eds., Oxford University Press, 2011) on SSRN. Here is the abstract:

One of the most controversial uses of prosecutorial discretion in plea bargaining concerns cases involving weak evidence of guilt. When a prosecutor bargains about the charges or even the facts in a case with weak evidence, at least three problems may arise. First, if the charge bargain is generous, it may coerce an innocent defendant to plead guilty. Second, such a bargain may let a guilty defendant off too easily, thus disserving the public and victim’s interests. Third, if the parties bargain about the facts, the result may distort the truth of the case.

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Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	2221	Less than Picture Perfect: The Legal Relationship between Photographers' Rights and Law Enforcement Morgan Leigh Manning, University of Tennessee, Knoxville - College of Law, Date posted to database: June 10, 2011
2	455	The Objects of the Constitution Nicholas Quinn Rosenkranz, Georgetown University - Law Center, Date posted to database: May 20, 2011
3	355	Nothing to Hide: The False Tradeoff between Privacy and Security Daniel J. Solove, George Washington University Law School, Date posted to database: May 11, 2011
4	234	Is it Finally Time to Put 'Proof Beyond a Reasonable Doubt' Out to Pasture? Larry Laudan, Instituto de Investigaciones Filosoficas, UNAM, Date posted to database: April 21, 2011 [6th last week]
5	201	Immigration Consequences: A Primer for Texas Criminal Defense Attorneys in Light of Padilla v. Kentucky Mario K. Castillo, Southern District of Texas, Brownsville Division, Date posted to database: May 11, 2011 [7th last week]
6	151	Rethinking the Indefinite Detention of Sex Offenders Fredrick E. Vars, University of Alabama - School of Law, Date posted to database: May 24, 2011 [9th last week]
7	145	The Lady, or the Tiger? A Field Guide to Metaphor and Narrative Linda L. Berger, Mercer University School of Law, Date posted to database: April 25, 2011 [10th last week]
8	133	Proving Prejudice, Post-Padilla Jenny Roberts, American University, Washington College of Law, Date posted to database: April 27, 2011 [new to top ten]
9	117	When State Courts Meet Padilla: A Concerted Effort is Needed to Bring State Courts Up to Speed on Crime-Based Immigration Law Provisions César Cuauhtémoc García Hernández, Capital University Law School, Date posted to database: May 25, 2011 [new to top ten]
10	111	Life, Death, and Neuroimaging: The Advantages and Disadvantages of The Defense’s Use of Neuroimages in Capital Cases - Lessons from the Front John H. Blume, Emily C. Paavola, Cornell Law School, Cornell Law School, Date posted to database: June 1, 2011 [new to top ten]