CrimProf Blog

Wagner et al. on fMRI and Lie Detection

Anthony D. Wagner, Richard J. Bonnie, BJ Casey, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim A. Taylor-Thompson and Gideon Yaffe ((Stanford University - Psychology, University of Virginia - School of Law, Sackler Institute for Developmental Psychobiology, US Court of Appeals - Fourth Circuit, University of California Hastings College of the Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute, University of Pennsylvania Law School, Washington University School of Medicine, Northwestern University - Department of Psychology, Columbia University - Law School, Temple University, New York University School of Law and Yale Law School)) have posted fMRI and Lie Detection (MacArthur Foundation Research Network on Law and Neuroscience, 2016) on SSRN. Here is the abstract:

Some studies have reported the ability to detect lies, with a high degree of accuracy, by analyzing brain data acquired using functional magnetic resonance imaging (fMRI). But is this new technology ready for its day in court?

This consensus knowledge brief from the MacArthur Foundation Research Network on Law and Neuroscience takes a closer look at the potential and pitfalls of fMRI lie detection techniques, providing insight into the areas of the brain involved in lying, the impact of memory on deception, how countermeasures may foil our efforts to detect lies, and factors that can create cause for concern about experimental validity.

Articles on "Dangerous" Sex Offenders in the Community

Several articles on the above topic, published in the Erasmus Law Review, have been posted on SSRN. The first is Lucia Martinez and Jorge Correcher Mira (University of Valencia and University of Valencia), Legal Constraints on the Indeterminate Control of ‘Dangerous’ Sex Offenders in the Community: The Spanish Perspective, Erasmus Law Review, Vol. 9, No. 2, 2016. Here is the abstract:

This article presents an overview of the legal regime provided in the Spanish system of criminal sanctions regarding the control of dangerous sex offenders in the community. It focuses on the introduction, in 2010, of a post-prison safety measure named supervised release. We describe the context of its introduction in the Spanish Criminal Code, considering the influence of societal upheaval concerning dangerous sex offenders in its development, and also the historical and theoretical features of the Spanish system of criminal sanctions. We also analyse the legal framework of supervised release, the existing case law about it and how the legal doctrine has until now assessed this measure. After this analysis, the main aim of this article consists in evaluating the effectiveness and the proportionality of the measure, according to the principle of minimal constraints and the rehabilitative function of the criminal sanctions in Spanish law, stated in Article 25.2 of the Spanish Constitution.

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Bell on Race

Jeannine Bell (Indiana University Maurer School of Law) has postedtwo articles on SSRN. The first is Can't We Be Your Neighbor? Trayvon Martin, George Zimmerman, and the Resistance to Blacks as Neighbors. Here is the abstract:

The Civil Rights Act of 1964 paved the way for the Fair Housing Act of 1968, which was designed to address discrimination in one of our most intimate space — neighborhoods. Fifty-six years after the passage of the Fair Housing Act, Americans remain fiercely resistant to the concept of neighborhood integration. This Article uses an unlikely event, the killing of Trayvon Martin, to discuss one manifestation of that resistance with disturbing implications.

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Foster on Manslaughter in the Workplace

Neil James Foster (Newcastle Law School) has posted Manslaughter in the Workplace on SSRN. Here is the abstract:

The recent decision of the NSW Court of Appeal in R v Moore [2015] NSWCCA 216 (15 Dec 2015) contains some important guidance on the possibility of a charge of manslaughter being successful in relation to a death in the workplace. Unfortunately, there are still some uncertainties, some of them created by the slightly unusual set of facts in this case. But the case overall is an important reminder that carelessness or breach of statute causing death at work may be charged in a serious case as manslaughter, and not only under specific workplace safety legislation.

Koops on Criminal Investigation and Privacy in Italian Law

Bert-Jaap Koops (Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)) has posted Criminal Investigation and Privacy in Italian Law on SSRN. Here is the abstract:

The law regulating criminal investigation both legitimates and limits the government’s use of power, and privacy is one of the most prominent issues in this process. This paper analyses criminal investigation in relation to privacy in Italian law, with particular focus on privacy-related safeguards and limitations to criminal investigation. As part of a large-scale project on privacy protection in the 21st century, together with similar country studies, it will facilitate comparative legal analysis of criminal investigation, and help to better understand privacy, as the forms and scope of privacy protection in criminal investigation law tell us something about how privacy is conceptualised. After an introduction on Italian criminal procedure, investigation powers are discussed that reflect limitations grounded in the protection of places, persons, things, and data, with particular attention for search and seizure, covert online searches, visual observation, and location tracking.

The overview demonstrates that criminal investigation powers are largely under-regulated in statutory law, which has to be compensated for by case-law and triggers extensive doctrinal debates.

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Cramer on The Murder/Burglary Rate and Drug Abuse

Clayton E. Cramer (College of Western Idaho) has posted The Murder/Burglary Rate Correlation as a Proxy for Drug Abuse on SSRN. Here is the abstract:

Murder and burglary rates are very strongly correlated: much more so than any other crimes recorded by the FBI’s Uniform Crime Reports program. This paper asks if both of these crimes are so strongly correlated because both are proxies for drug abuse, and suggests that this relationship may justify more examination of a causal connection by researchers with more statistical skills.

Holland on Anticipatory Self-Defense and Bias

Brooks Holland (Gonzaga University School of Law) has posted Anticipatory Self-Defense Claims as a Lens for Reexamining Zealous Advocacy and Anti-Bias Disciplinary Norms (49 Texas Tech Law Review 1 (2016)) on SSRN. Here is the abstract:

This article examines aspects of recently adopted ABA Model Rule 8.4(g), which subjects lawyers to professional discipline for discriminatory harassment or bias. This article, however, arises out of the Texas Tech Law Review 2016 criminal law symposium on violence against women. I participated specifically on a symposium panel focusing on “anticipatory” self-defense claims. As a result, this article follows a fairly non-linear trajectory in addressing Model Rule 8.4(g).

I initially define and analyze “anticipatory” self-defense claims, and conclude that these claims involve highly discretionary culpability judgments. This discretion creates an enhanced opportunity for bias in decision-making, and powerful scholarship indicates that this bias often cuts across gender lines, favoring men and disfavoring women in self-defense claims. Next, I inquire whether the advocacy of criminal defense lawyers in these cases improperly contributes to a gender bias dynamic. Looking at this question through the lens of traditional zealous advocacy, I conclude that the enhanced discretion built into anticipatory self-defense claims can invite improperly biased advocacy, because the zealous advocacy model trains defense lawyers to traffic in bias that favors their clients. Moreover, in this environment of zealous advocacy, lawyers’ own implicit biases about violence and gender can reinforce the influence of gender bias on a lawyer’s advocacy choices.

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Perlin on Forensic Psychologists and the Conditions of Institutionalization

Michael L. Perlin (New York Law School) has posted 'Your Old Road is/Rapidly Agin': International Human Rights Standards and Their Impact on Forensic Psychologists, the Practice of Forensic Psychology, and the Conditions of Institutionalization of Persons with Mental Disabilities on SSRN. Here is the abstract:

For years, considerations of the relationship between international human rights standards and the work of forensic psychologists have focused on the role of organized psychology in prisoner abuse at Guantanamo Bay and Abu Ghirab. That issue has been widely discussed and debated, and these discussions show no sign of abating. But there has been virtually no attention to another issue of international human rights, one that grows in importance each year: how the treatment (especially, the institutional treatment) of persons with mental and intellectual disabilities violates international human rights law, and the silence of organized forensic psychology in the face of this mistreatment. This issue has become even more pointed in recent years, following the ratification of the United Nations’ Convention on the Rights of Persons with Disabilities.

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Tuzet & Canale on Extensive Interpretation

Giovanni Tuzet and Damiano Canale (Bocconi University - Department of Law and Bocconi University - Department of Law) have posted Analogical Reasoning and Extensive Interpretation (Archiv für Rechts- und Sozialphilosophie, 102(4), 2016) on SSRN. Here is the abstract:

Extensive interpretation of legal provisions is in tension with the prohibition of reasoning by analogy in criminal law, for it is unclear what the difference is between the two.

Some scholars claim that they differ from a theoretical point of view, since they do not have the same argumentative structure. On the other hand, the two come to the same result starting from the same legal materials: they justify the extension of a regulation to a case that is not explicitly considered by the law.

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Levine on Disciplinary Regulation of Abuses of Prosecutorial Discretion

Samuel J. Levine (Touro College - Jacob D. Fuchsberg Law Center) has posted The Potential Utility of Disciplinary Regulation as a Remedy for Abuses of Prosecutorial Discretion (12 Duke J. Const. L. & Pub. Pol'y 1 (2016)) on SSRN. Here is the abstract:

This Essay is part of a larger project exploring the possibility that, contrary to much of the prevailing scholarship, judicial supervision of the prosecutor’s charging decision—through both expansive judicial interpretation of current ethics rules and judicial enactment and enforcement of more extensive ethics rules—might serve as a viable and effective mechanism for meaningful review and regulation.

In a forthcoming article, Bruce Green and I identify and respond to some of the reasons scholars have generally steered clear of considering the option that judges might play a more robust role in supervising prosecutors’ charging discretion by implementing enhanced disciplinary rules addressing charging decisions. Specifically, we suggest that much of the leading scholarship seems to be built on the premise that, as a descriptive matter, as part of the doctrine of separation of powers, and for practical reasons, courts lack the authority and ability to review the prosecutorial charging decision. We argue, however, that the nearly categorical assumption among many scholars that courts do not have the authority to review charging decisions reflects an undue attention to federal law and federal courts, and as a result, reveals only part of the story.

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Patton on The Structure of Federal Public Defense

David Patton (Federal Defenders of New York) has posted The Structure of Federal Public Defense: A Call for Independence (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:

Independence is a foundational requirement for any good system of public criminal defense. The Constitution guarantees anyone charged with a crime the right to a defense attorney regardless of ability to pay, and that attorney has the ethical obligation to provide a zealous defense, free from any conflicting outside influence. And yet the system of federal public defense is funded, managed, and supervised by the very judges in front of whom defenders must vigorously defend their clients. The arrangement creates serious constitutional, ethical, and policy problems. This Article proposes a solution: an independent federal defense agency. The agency proposed, the Center for Federal Public Defense (CFPD), would administer federal defenders’ offices, manage the system of appointed private attorneys, and seek funding from Congress for indigent defense services.

The Article places the discussion of the proposed organization in the context of other independent agencies that do not fit neatly into a single branch of government, sometimes described as “boundary organizations.”

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Mackay on Nordic Prisons

Anita Mackay (La Trobe University) has posted Human Rights Law Compliance in Prisons: What Can Australia Learn from the Nordic Approach (20(1) Australian Journal of Human Rights 31) on SSRN. Here is the abstract:

The conditions in Australian prisons reveal that Australia is failing to comply with our international human rights law obligations as they apply to prisons. It is enlightening to compare this with the way the Nordic countries — regarded by some criminologists as having an ‘exceptional’ approach to imprisonment — comply with the same international legal obligations. This article argues that Finland provides comprehensive domestic legal protections, having recently updated its Constitution and prison law. Sweden offers some insight into the implementation of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) (which Australia has signed, but is yet to ratify) and the Norwegian Ombudsman has a human rights mandate and is effective at having recommendations implemented by the government in a way that comparable monitoring organisations in Australia are not. The article suggests that there are lessons Australia may learn from the Nordic approach for the purposes of improving international human rights law compliance in prisons.

Rossner on The Placement of the Accused

Meredith Rossner (London School of Economics & Political Science (LSE)) has posted In the Dock: The Placement of the Accused at Court and the Right to a Fair Trial (LSE Law - Policy Briefing Paper No. 18) on SSRN. Here is the abstract:

The UK Government has recently launched an ambitous reform of the court estate across England and wales, including the closure of 86 courts and significant investment in new technologies. The time is right to rethink how courts of the future should look, with an emphasis on flexibility of space and the use of technology. A longstanding architectural feature of criminal courts is the dock, where the accused is held during a trial. In recent years, this has evolved to include a fully-glassed in box, or in some countries, metal cages. The continued use of docks may undermine the rights of the accused, including the right to participate in one’s trial, the right to be presumed innocent, and the right to be treated in a dignified manner. I present the results of an experiment testing whether the placement of the accused in a dock can impact on mock- jurors assessment of guilt. Jurors were more likely to return a guilty verdict when the acused was in a dock, compared to sitting at the bar table with counsel, independent of the evidence against him. If the government is serious about creating fairer and more effective courts of the future, then they need discontinue the use of docks in criminal trials.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Downloads	Paper Title
1	152	Extreme Prison Sentences: Legal and Normative Consequences Melissa Hamilton University of Houston Law Center Date posted to database: 7 Nov 2016 [2nd last week]
2	138	Bail Nullification Jocelyn Simonson Brooklyn Law School Date posted to database: 5 Dec 2016 [5th last week]
3	127	A Catharsis for U.S. Trust Law: American Reflections on the Panama Papers Reid K. Weisbord Rutgers Law School Date posted to database: 20 Oct 2016 [4th last week]
4	113	How Prosecutors and Defense Attorneys Differ in Their Use of Neuroscience Evidence Deborah W. Denno Fordham University School of Law Date posted to database: 7 Nov 2016 [6th last week]
5	105	Criminal Law, Neuroscience and Voluntary Acts Dennis Patterson European University Institute Date posted to database: 25 Oct 2016 [8th last week]
6	104	Punishment Theory for the Twenty-First Century: The Need to Replace Retributive and Mixed Theories Michael Tonry University of Minnesota - Twin Cities - School of Law Date posted to database: 18 Oct 2016 [7th last week]
7	85	From Policing to Parole: Reconfiguring American Criminal Justice Michael Tonry University of Minnesota - Twin Cities - School of Law Date posted to database: 2 Nov 2016 [10th last week]
8	83	Faultless Guilt: Toward a Relationship-Based Account of Criminal Liability Amy J. Sepinwall Department of Legal Studies and Business Ethics, The Wharton School, University of Pennsylvania Date posted to database: 31 Oct 2016 [9th last week]
9	81	Crackdowns Mila Sohoni University of San Diego School of Law Date posted to database: 5 Dec 2016 [new to top ten]
10	70	State v. Brelo and the Problem of Actual Causation Ben Gifford Harvard University, Law School, Students Date posted to database: 16 Oct 2016 [new to top ten]

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Downloads	Paper Title
1	3,690	Do White Police Officers Unfairly Target Black Suspects? John R. Lott and Carlisle E. Moody Crime Prevention Research Center and College of William and Mary - Department of Economics Date posted to database: 16 Nov 2016
2	206	Debunking the Stranger in the Bushes Myth: The Case for Sexual Assault Protection Orders Shawn Fields University of San Diego School of Law Date posted to database: 11 Oct 2016
3	178	Forensics and Fallibility: Comparing the Views of Lawyers and Judges Brandon L. Garrett and Gregory Mitchell University of Virginia School of Law and University of Virginia School of Law Date posted to database: 7 Nov 2016
4	171	Rethinking Prosecutors’ Conflicts of Interest Bruce A. Green and Rebecca Roiphe Fordham University School of Law and New York Law School Date posted to database: 9 Oct 2016
5	138	Bail Nullification Jocelyn Simonson Brooklyn Law School Date posted to database: 5 Dec 2016
6	112	The Law (?) of the Lincoln Assassination Martin Lederman Georgetown University Law Center Date posted to database: 20 Oct 2016
7	85	From Policing to Parole: Reconfiguring American Criminal Justice Michael Tonry University of Minnesota - Twin Cities - School of Law Date posted to database: 2 Nov 2016
8	82	Good and Bad Ways to Address Police Violence Lawrence Rosenthal Chapman University, The Dale E. Fowler School of Law Date posted to database: 4 Nov 2016 [9th last week]
9	78	The Wrong Decision at the Wrong Time: Utah v. Strieff in the Era of Aggressive Policing Julian A. Cook University of Georgia Law School Date posted to database: 5 Nov 2016 [8th last week]
10	76	Constitutional Liberty and the Progression of Punishment Robert J. Smith and Zoe Robinson University of North Carolina School of Law and DePaul University College of Law Date posted to database: 28 Oct 2016

Slobogin on Mental Health Standards

Christopher Slobogin (Vanderbilt University - Law School) has posted The American Bar Association's Criminal Justice Mental Health Standards: Revisions for the Twenty-First Century (Hastings Constitutional Law Quarterly, Vol. 44, 2016) on SSRN. Here is the abstract:

This article is an examination of the American Bar Association’s newly adopted Criminal Justice Mental Health Standards, organized around three goals that permeate the Standards. The first goal is ensuring that people with mental disabilities who encounter the criminal justice system are treated humanely and fairly. Achieving this goal requires a delicate balance between providing the treatment necessary to ensure the safety and health of these individuals and avoiding interventions that are not legally necessary. A second goal is to promote reliable case outcomes. This goal requires substantive doctrines that recognize the mitigating impact of mental disabilities and an adequate evaluation system that permits clinicians to gather the information they need to address legal questions; treatment is an important element of this goal as well when necessary to enable a defendant's meaningful participation in the legal proceedings. The third goal is to honor the autonomy of people with mental disabilities by ensuring their desires and decisions are accorded appropriate respect by their own lawyers and the rest of the criminal justice system. The Standards adopt the position that competent defendants should have the power not only to participate but also to control the most important aspects of their cases.

Cover on Hybrid Jury Strikes

Aliza Plener Cover (University of Idaho College of Law) has posted Hybrid Jury Strikes (Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Forthcoming) on SSRN. Here is the abstract:

Modern jury selection is pulled in two directions. Equal protection prohibits racial discrimination, but the traditional peremptory strike permits exclusion of a juror without explanation. To reconcile this tension, the Court developed the Batson framework, requiring lawyers to articulate ex post race-neutral justifications for suspicious strikes. But many doubt Batson’s efficacy at uncovering latent discrimination. Last term, while recognizing a Batson violation in Foster v. Chatman, the Supreme Court counter-intuitively reinforced this concern. Foster is the rare case in which prosecutors documented in writing their reliance on race. A framework that depends on such transparency is weak and ineffective. And the systemic persistence of discrimination, three decades after Batson was decided, has convinced many that the only solution is to eliminate peremptory strikes in their entirety.

In this article, I offer an alternative strategy. I introduce a new mechanism to reform – but not entirely eliminate – the system of peremptory challenges: the “hybrid jury strike.” Hybrid strikes would fall in between traditional peremptory challenges, which may be exercised at the party’s discretion, and challenges for cause, which may be granted only upon an adequate showing of the juror’s bias or other basis for disqualification. Hybrid strikes would require ex ante justification but not a conclusive showing of bias; they could be used to exclude a set number of jurors who survived non-pretextual and meaningful cause challenges. Hybrid strikes could replace traditional peremptories wholesale or could be leveraged asymmetrically – such as by preserving traditional peremptories for the defense while permitting only hybrid strikes for the prosecution.

Hybrid strikes offer an intermediate approach between the status quo and complete abolition of peremptory challenges. They would meaningfully curtail discrimination while preserving the most legitimate function of peremptory challenges: to foster jury impartiality by providing a buffer zone for cause challenges when evidence of bias is credible but insufficient or when judges erroneously reject them.

Duncan on Child Pornography Statutes

Susan Duncan (University of Louisville - Louis D. Brandeis School of Law) has posted Child Pornography Statutes and New Legislation (Sexting and Youth, A Multidisciplinary Examination of Research, Theory, and Law, 2014, Carolina Academic Press) on SSRN. Here is the abstract:

Debate still exists whether criminalizing youth sexting is desirable. Opponents to criminalizing youth sexting argue that laws will be ineffective and are unnecessary and that children should not be penalized for bad judgment. Many legislators around the country do not agree and continue to propose new bills during their legislative sessions. These statutes are far from uniform. West Virginia passed the most recent bill creating a youth sexting education diversion program. In 2012, at least thirteen states proposed legislation dealing with youth sexting. Since 2009, nineteen states have passed some law specific to youth sexting. Similarly, prosecutors are not ignoring the issue and are using traditional child pornography statutes and the new statutes to bring actions against teenagers who sext. This chapter examines these statutes and prosecutions and offers drafting suggestions which will help better fulfill the goal of keeping children safe while not unduly punishing them for a youthful mistake.

Harris on Foster Care and Crime

Leslie J. Harris (University of Oregon - School of Law) has posted Challenging the Overuse of Foster Care and Disrupting the Path to Delinquency and Prison on SSRN. Here is the abstract:

Foster care is supposed to be a temporary safe haven for abused and neglected children, a place where they are cared for while their parents solve the problems that led to their mistreatment. For many children, foster care undoubtedly serves this function well. However, thousands of children live in foster care for extended periods of time, many leaving care only when they become adults. Recent studies show that for many of these children, foster care is not a safe, nurturing place. Instead, being in care exposes these children to substantial risks of later juvenile delinquency and adult criminal arrest and conviction, as well as mental health problems, difficulties in school, poor employment prospects, poverty and homelessness. Ironically, reducing the use of foster care and focusing more on in-home services have been public policy goals in the United States for more than thirty years, and the roots of these policies go back more than a century. Despite this long consensus, the foster care system has been stubbornly resistant to change. I argue that the system persists because it allows society to assert that it is protecting children from harm while refusing to provide substantial material support to poor parents and that turning this analytical lens onto the actual functioning of the foster care system and its harmful effects on many children could provide new ways to argue for legal and policy reforms to the child welfare system that could reduce the unnecessary use of foster care and its consequences for delinquency.

Carpenter et al. on Investigating Death

Belinda Carpenter, Gordon Tait, Carol Quadrelli and Ian Thompson (Queensland University of Technology - Faculty of Law, Queensland University of Technology, Queensland University of Technology and Queensland Police Service) have posted Investigating Death: The Emotional and Cultural Challenges for Police (Policing and Society, 26(6), pp. 698-712) on SSRN. Here is the abstract:

The over-representation of vulnerable populations within the criminal justice system, and the role of police in perpetuating this, has long been a topic of discussion in criminology. What is less discussed is the way in which non-criminal investigations by police, in areas like a death investigation, may similarly disadvantage and discriminate against vulnerable populations. In Australia, as elsewhere, it is police who are responsible for investigating both suspicious and violent deaths like homicide as well as non-suspicious, violent deaths like accidents and suicides. Police are also the agents tasked with investigating deaths which are neither violent nor suspicious but occur outside hospitals and other care facilities. This paper, part of a larger funded Australian research project focusing on the ways in which cultural and religious differences are dealt with during the death investigation process, reports on how police describe – or are described by others – during their role in a non-suspicious death investigation, and the challenges that such investigations raise for police and policing. The employment of police liaison officers is discussed as one response to the difficulty of policing cultural and religious difference with variable results.