CrimProf Blog

Kerr & Schneier on Encryption Workarounds

Orin S. Kerr and Bruce Schneier (The George Washington University Law School and Harvard University - Berkman Klein Center for Internet & Society) have posted Encryption Workarounds on SSRN. Here is the abstract:

The widespread use of encryption has triggered a new step in many criminal investigations: the encryption workaround. We define an encryption workaround as any lawful government effort to reveal an unencrypted version of a target’s data that has been concealed by encryption. This essay provides an overview of encryption workarounds. It begins with a taxonomy of the different ways investigators might try to bypass encryption schemes. We classify six kinds of workarounds: find the key, guess the key, compel the key, exploit a flaw in the encryption software, access plaintext while the device is in use, and locate another plaintext copy. For each approach, we consider the practical, technological, and legal hurdles raised by its use.

The remainder of the essay develops lessons about encryption workarounds and the broader public debate about encryption in criminal investigations.

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Leo on Suspect Confessions

Richard A. Leo (University of San Francisco - School of Law) has posted Police Interrogation and Suspect Confessions: Social Science, Law and Public Policy (in Erik Luna, ed. Academy for Justice: A Report on Scholarship and Criminal Justice Reform (2017, Forthcoming)) on SSRN. Here is the abstract:

In this chapter, I review and analyze the most important findings from the extensive empirical social science research literature on police interrogation and confessions. I then review existing law and policy on interrogation and confessions, and then offer empirically based policy and legal recommendations. I will argue that the most important legal and policy reforms for achieving both the elicitation (by police) and admission into evidence (by trial courts) of voluntary and reliable confession evidence are: mandatory full electronic recording of all police interviews and interrogations; improved police training and practice on pre-interrogation investigative procedures; a shift from guilt-presumptive accusatory interrogation techniques that prioritizes eliciting confessions above all else to more professional investigative interviewing approaches that prioritize obtaining accurate information above all else; and pre-trial reliability hearings to prevent false and unreliable confession evidence from being admitted into evidence at trial and leading to wrongful convictions.

Tanovich on Racial Profiling

David M. Tanovich (University of Windsor - Faculty of Law) has posted Applying The Racial Profiling Correspondence Test (66(1) Criminal Law Quarterly, 2018, Forthcoming) on SSRN. Here is the abstract:

In the landmark Canadian racial profiling case of R v Brown, an unanimous Ontario Court of Appeal firmly recognized that racial profiling is a reality that is “supported by significant social science research.”

Brown established a correspondence test for proving racial profiling. This paper aims to set out, in some detail, how and when the correspondence test can be applied.

Part I sets out the test from Brown. Part II identifies the different manifestations of racial profiling. Part III examines the relevant indicators that can be used to meet the test. These indicators include context, pretext and lessons learned. Part III also summarizes the recent carding/street check data which reveals the widespread nature of the disproportionate policing of Black and other racialized individuals in a number of cities across Canada.

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Bellin on The Silence Penalty

Jeffrey Bellin (William & Mary Law School) has posted The Silence Penalty (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:

In every criminal trial, the defendant possesses the right to testify. Deciding whether to exercise that right, however, is rarely easy. Declining to testify shields defendants from questioning by the prosecutor and normally precludes the introduction of a defendant’s prior crimes. But silence comes at a price. Jurors penalize defendants who fail to testify by inferring guilt from silence.

This Article explores this complex dynamic, focusing on empirical evidence from mock juror experiments – including the results of a new 400-person mock juror simulation conducted for this Article – and data from real trials. It concludes that the penalty defendants suffer when they refuse to testify is substantial, rivaling the more widely-recognized damage done to a defendant’s trial prospects by the introduction of a criminal record. Moreover, these two penalties work in tandem, creating a “parallel penalty” effect that systemically diminishes the prospects of acquittal and incentivizes guilty pleas.

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Scharf on Drones and Privacy

Rebecca L. Scharf (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Game of Drones: Rolling the Dice with Unmanned Aerial Vehicles and Privacy on SSRN. Here is the abstract:

This Article offers a practical three-part test for courts and law enforcement to utilize when faced with drone and privacy issues. Specifically addressing the question: how should courts analyze the Fourth Amendment’s protection against ‘unreasonable searches’ in the context of drones?

The Supreme Court’s Fourth Amendment jurisprudence produced an intricate framework to address issues arising out of the intersection of technology and privacy interests. In prominent decisions, including United States v. Katz, California v. Ciraolo, Kyllo v. United States, and most notably, United States v. Jones, the Court focused on whether the use of a single technology, such as the use of photography, audio recording, heat sensors, or GPS violated an individual’s Fourth Amendment right to privacy. But now, one of the most complex and innovative technological advances in recent years, the unmanned aerial vehicle, or drone, has created an especially difficult issue for courts. Because a single drone can be fitted with multiple technologies, courts need to employ a multidimensional analysis to determine whether an individual’s Fourth Amendment rights have been violated.

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Griffin on Plea Bargaining Regulation and Indigent Defense

Lisa Kern Griffin (Duke University School of Law) has posted State Incentives, Plea Bargaining Regulation, and the Failed Market for Indigent Defense (Law and Contemporary Problems, Vol. 80, 2017) on SSRN. Here is the abstract:

This essay considers the intersection of two “markets” in the criminal justice system: plea bargaining and the provision of indigent defense. Plea bargaining has long been justified by free-market conceptions of private ordering and is subject to limited judicial oversight and regulation. The vast majority of defendants engaged in plea bargaining—several million each year—also rely on a publicly funded system for the provision of counsel. Staggering caseloads and minimal standards have produced an acute crisis in that system. Yet in three recent decisions, the Supreme Court has incrementally expanded the requirement of adequate assistance of counsel for defendants engaged in plea bargaining. The failure to advise a defendant entering a guilty plea of the collateral immigration consequences of conviction, exceedingly poor advice about rejecting a plea offer, and counsel’s failure to even convey the terms of a plea agreement all constitute breaches of a defendant’s Sixth Amendment right to representation. Although these decisions do not portend significant constitutional regulation of prosecutorial tactics or changes to the terms of plea agreements themselves, they have unexplored potential to affect the system of public defense.

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Wexler & Jones on Probation and Reentry Courts

David B. Wexler and Michael D. Jones (University of Puerto Rico - School of Law and Arizona Summit Law School) have posted Creating a Reentry Court by Wagging the ‘Probation Tail’ (Therapeutic Jurisprudence in the Mainstream, 2017 (Forthcoming)) on SSRN. Here is the abstract:

This short essay explains how a device already used in Arizona, and known as a "probation tail", can be used by judges in appropriate cases to in essence create a reentry court. The original purpose of the probation tail device (an incarcerative sentence followed by a consecutive sentence of probation) was to ensure community supervision by well-trained and well-resourced probation officers, rather than by overburdened and underfunded parole officers. Our proposal is that efforts would be undertaken to allow for a seamless transition from incarceration to probation; in appropriate cases, the tail would include periodic status hearings, and eventual termination (or somewhat early termination) would include a brief "ceremony" with the presence of a handful of family and friends. All of these measures, of course, should facilitate a successful reentry to the community.

Simmons on Fourth Amendment Use Restrictions

Ric Simmons (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted The Mirage of Use Restrictions (North Carolina Law Review, 2017 Forthcoming) on SSRN. Here is the abstract:

The Fourth Amendment strikes a balance between Americans’ privacy interests and the government’s need to investigate crime. It does so almost exclusively by placing restrictions on how the government collects information: if the government surveillance constitutes a “search,” the government must meet certain legal standards before it can engage in that surveillance. Over the past few decades, technological advances have increased exponentially the government’s ability to collect information, and many of these new surveillance methods do not fit into the traditional definitions of a Fourth Amendment search. In response, courts and commentators have searched for new doctrines to define and limit the government’s surveillance power. One of the more popular proposals that has been advanced is to force the government to adopt “use restrictions” — limitations on what the government can do with information that it collects or that is already in its possession. This new type of restriction represents a significant shift from the current paradigm of regulating government surveillance: a shift away from regulating how information is collected and towards regulating how the information is used.

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Rozenshtein on Surveillance Intermediaries

Alan Z. Rozenshtein has posted Surveillance Intermediaries (70 Stanford Law Review (2018 Forthcoming)) on SSRN. Here is the abstract:

Apple’s 2016 fight against a court order commanding it to help the FBI unlock the iPhone of one of the San Bernardino terrorists exemplifies how central the question of regulating government surveillance has become in American politics and law. But scholarly attempts to answer this question have suffered from a serious omission: scholars have ignored how government surveillance is checked by “surveillance intermediaries,” the companies like Apple, Google, and Facebook that dominate digital communications and data storage, and on whose cooperation government surveillance relies. This Article fills this gap in the scholarly literature, providing the first comprehensive analysis of how surveillance intermediaries constrain the surveillance executive. In so doing, it enhances our conceptual understanding of, and thus our ability to improve, the institutional design of government surveillance.

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Reid on the Fourth Amendment in an Age of Supercomputers

Melanie Reid (Lincoln Memorial University - Duncan School of Law) has posted Rethinking the Fourth Amendment in the Age of Supercomputers, Artificial Intelligence, and Robots (West Virginia Law Review, Vol. 119, No. 101, 2017) on SSRN. Here is the abstract:

Law enforcement currently uses cognitive computers to conduct predictive and content analytics and manage information contained in large police data files. These big data analytics and insight capabilities are more effective than using traditional investigative tools and save law enforcement time and a significant amount of financial and personnel resources. It is not farfetched to think law enforcement’s use of cognitive computing will extend to using thinking, real-time robots in the field in the not-so-distant future. IBM’s Watson currently uses its artificial intelligence to suggest medical diagnoses and treatment in the healthcare industry and assists the finance industry in improving investment decisions. IBM and similar companies already offer predictive analytics and cognitive computing programs to law enforcement for real-time intelligence and investigative purposes. This article will explore the consequences of predictive and content analytics and the future of cognitive computing, such as utilizing “robots” such as an imaginary “Officer Joe Roboto” in the law enforcement context. Would our interactions with Officer Joe Roboto trigger the same Fourth Amendment concerns and protections as those when dealing with a flesh-and-blood police officer? Are we more afraid of a “robotic” Watson, its capabilities, and lack of feeling and biases, compared to a human law enforcement officer? Assuming someday in the future we might be able to solve the physical limitations of a robot, would a “robotic” officer be preferable to a human one? What sort of limitations would we place on such technology? This article attempts to explore the ramifications of using such computers/robots in the future. Autonomous robots with artificial intelligence and the widespread use of predictive analytics are the future tools of law enforcement in a digital age, and we must come up with solutions as to how to handle the appropriate use of these tools.

Fuster on AEDPA and Summary Dispositions

Patrick J. Fuster (University of Chicago, Law School, Students) has posted Taming Cerberus: The Beast at AEDPA's Gates (84 University of Chicago Law Review, 2017, Forthcoming) on SSRN. Here is the abstract:

The Antiterrorism and Effective Death Penalty Act of 1996 erects barriers (or “gates”) to relief on federal habeas corpus, reinforcing and supplementing judge-made ones. Though broad in its reach, AEDPA is frequently silent to the particulars. To fill gaps in the statute and case law, federal habeas courts have fallen back on overly simplistic abstractions of finality, comity, and federalism, following the lead of the Supreme Court in its frequent invocation of the triad. By ignoring the particular application within the concrete issue, judges err in divining the true magnitude and limits on these purposes. Instead, they conjure Cerberus, an unprincipled beast that denies relief whenever the gates of AEDPA and the case law are not dispositive. This Comment develops a more nuanced framework to gauge the interaction of the three purposes within the context of a current circuit split on the meaning of summary dispositions.

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Belanger on The Exclusionary Rule

Robert Belanger (Nineteenth Judicial Circuit Florida) has posted Judicial Decision Making and the Exclusionary Rule (Texas Review of Law & Politics, Vol. 21, No. 1, 2016) on SSRN. Here is the abstract:

This article examines the factors that may influence how judges apply the exclusionary rule. When a suppression issue exists, we trust a judge to determine whether a search was unlawful, but we do not trust the judge to fashion an appropriate remedy, other than the per se exclusion of evidence. Judges may be reluctant to find Fourth Amendment violations because the only remedy for a Fourth Amendment violation is a rule of per se exclusion, a remedy that is often disproportionate to the underlying wrong. This lack of proportionality constitutes overdeterrence, so that the rule will be underenforced.

Opinion requiring modern clinical tests for mental disability in capital case

Justice Ginsburg delivered the opinion of the Court in Moore v. Texas. Chief Justice Roberts filed a dissenting opinion, in which Justices Thomas and Alito joined.

Lemley & Volokh on Virtual and Augmented Reality

Mark A. Lemley and Eugene Volokh (Stanford Law School and University of California, Los Angeles (UCLA) - School of Law) have posted Law, Virtual Reality, and Augmented Reality on SSRN. Here is the abstract:

Virtual Reality (VR) and Augmented Reality (AR) are going to be big -- not just for gaming but for work, for social life, and for evaluating and buying real-world products. Like many big technological advances, they will in some ways challenge legal doctrine. In this Article, we will speculate about some of these upcoming challenges, asking:

(1) How might the law treat “street crimes” in VR and AR -- behavior such as disturbing the peace, indecent exposure, deliberately harmful visuals (such as strobe lighting used to provoke seizures in people with epilepsy), and “virtual groping”? Two key aspects of this, we will argue, are the Bangladesh problem (which will make criminal law very hard to practically enforce) and technologically enabled self-help (which will offer an attractive alternative protection to users, but also a further excuse for real-world police departments not to get involved).

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Humbach on Alexander on Hard Incompatibilism

John A. Humbach (Pace University School of Law) has posted Does Hard Incompatibilism Really Abolish ‘Right’ and ‘Wrong’? Some Thoughts in Response to Larry Alexander on SSRN. Here is the abstract:

In a challenge to recent writings of Derk Pereboom and Gregg Caruso, Larry Alexander makes the following claim: If one accepts the Pereboom-Caruso “hard incompatibilist” view of choice, which regards blame and retributive punishment as morally unjustified because free will is an illusion, then “normativity completely disappears.” In making this claim, Professor Alexander appears to hold that the moral distinction between right and wrong conduct (“normativity”) cannot effectively exist unless those who do wrong “deserve” to receive blame and punishment in response to their misbehavior. This is not, however, necessarily so.

It is not our feelings of blame or urges to punish that give rise to the differing moral qualities or properties (good/bad, right/wrong) that we perceive in different kinds of conduct.

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Teichman on Convicting with Reasonable Doubt

Doron Teichman (Hebrew University of Jerusalem - Faculty of Law) has posted Convicting with Reasonable Doubt: An Evidentiary Theory of Criminal Law (Notre Dame Law Review, Forthcoming) on SSRN. Here is the abstract:

This Article presents an evidentiary theory of substantive criminal law according to which sanctions are distributed in proportion to the strength of the evidence mounted against the defendant. It highlights the potential advantages associated with grading penalties in proportion to the probability of wrongdoing and situates this claim within both consequentialist and deontological theories of punishment. Building on this analysis, the Article reviews the doctrinal tools used to achieve the goal of evidentiary grading of sanctions and shows that key factors in criminal law are geared towards dealing with evidentiary uncertainty. Finally, the Article explores the underlying logic of the evidentiary structure of criminal law and argues that this structure can be justified on psychological, economic, and expressive grounds.

Vilares et al. on Knowledge, Recklessness, and the Brain

Iris Vilares, Michael Wesley, Woo-Young Ahn, Richard J. Bonnie, Morris B. Hoffman, Owen D. Jones, Stephen Morse, Gideon Yaffe, Terry Lohrenz and Read Montague (University College London - Wellcome Trust Center for Neuroimaging, University of Kentucky - Behavioral Science, Ohio State University (OSU) - Department of Psychology, University of Virginia - School of Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, University of Pennsylvania Law School, Yale Law School, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute and Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute) have posted Predicting the Knowledge-Recklessness Distinction in the Human Brain (Proceedings of the National Academy of Sciences, 2016) on SSRN. Here is the abstract:

Criminal convictions require proof that a prohibited act was performed in a statutorily specified mental state. Different legal consequences, including greater punishments, are mandated for those who act in a state of knowledge, compared with a state of recklessness. Existing research, however, suggests people have trouble classifying defendants as knowing, rather than reckless, even when instructed on the relevant legal criteria.

We used a machine-learning technique on brain imaging data to predict, with high accuracy, which mental state our participants were in. This predictive ability depended on both the magnitude of the risks and the amount of information about those risks possessed by the participants. Our results provide neural evidence of a detectable difference in the mental state of knowledge in contrast to recklessness and suggest, as a proof of principle, the possibility of inferring from brain data in which legally relevant category a person belongs. Some potential legal implications of this result are discussed.

 

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Downloads	Paper Title
1	462	Law, Virtual Reality, and Augmented Reality Mark A. Lemley and Eugene Volokh Stanford Law School and University of California, Los Angeles (UCLA) - School of Law Date posted to database: 17 Mar 2017 [new to top ten]
2	450	How Should Justice Policy Treat Young Offenders? BJ Casey, Richard J. Bonnie, 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 Anthony D. Wagner Yale University - Department of Psychology, University of Virginia - School of Law, 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, Yale University - Department of Psychology, Columbia University - Law School, Temple University, New York University School of Law and Stanford University - Psychology Date posted to database: 28 Feb 2017 [first last week]
3	108	Why Prison?: An Economic Critique Peter N. Salib University of Chicago Date posted to database: 7 Mar 2017
4	107	Neuroethics: Neurolaw Stephen Morse University of Pennsylvania Law School Date posted to database: 16 Feb 2017 [2nd last week]
5	96	Penal Populism: The End of Reason John Pratt and Michelle Miao Victoria University of Wellington - Institute of Criminology and The Chinese University of Hong Kong, Faculty of Law Date posted to database: 24 Jan 2017 [7th last week]
6	95	Losing the 'War of Ideas': A Critique of Countering Violent Extremism Programs Sahar F. Aziz Texas A&M University School of Law Date posted to database: 9 Feb 2017
7	90	McDonnell and the Criminalization of Politics George D. Brown Boston College Law School Date posted to database: 2 Feb 2017 [5th last week]
8	81	Incredible Women: Sexual Violence and the Credibility Discount Deborah Tuerkheimer Northwestern University - Pritzker School of Law Date posted to database: 21 Feb 2017 [new to top ten]
9	69	Fairness, Equality, Proportionality, and Parsimony: Towards a Comprehensive Jurisprudence of Just Punishment Michael Tonry University of Minnesota - Twin Cities - School of Law Date posted to database: 7 Feb 2017 [8th last week]
10	67	The Legal Consequences of Noncompliance with Federal Tax Laws Allen D. Madison University of South Dakota Law School Date posted to database: 10 Feb 2017

Next week's criminal law/procedure arguments

Issue summaries are from ScotusBlog, which also links to papers:

Tuesday

• Lee v. U.S.: Whether it is always irrational for a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation.

Wednesday

• Overton v. U.S.: Whether the petitioners' convictions must be set aside under Brady v. Maryland.
• Turner v. U.S.: Whether the petitioners' convictions must be set aside under Brady v. Maryland.
• Honeycutt v. U.S.: Whether 21 U.S.C. § 853(a)(1) mandates joint and several liability among co-conspirators for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

 

Rank	Downloads	Paper Title
1	501	Judge Gorsuch and Johnson Resentencing (This is Not a Joke) Leah M. Litman University of California, Irvine School of Law Date posted to database: 24 Jan 2017
2	236	The Progressive Prosecutor's Handbook David Alan Sklansky Stanford University Date posted to database: 15 Feb 2017
3	213	The Undue Influence of Surveillance Technology Companies on Policing Elizabeth E. Joh University of California, Davis - School of Law Date posted to database: 28 Feb 2017
4	165	The Battle over the Burden of Proof: A Report from the Trenches Michael D. Cicchini Independent Date posted to database: 14 Feb 2017
5	148	Reassessing Prosecutorial Power Through the Lens of Mass Incarceration Jeffrey Bellin William & Mary Law School Date posted to database: 9 Mar 2017 [new to top ten]
6	127	Due Process Abroad Nathan S. Chapman University of Georgia School of Law Date posted to database: 21 Feb 2017 [5th last week]
7	122	Constitutional Reasonableness Brandon L. Garrett University of Virginia School of Law Date posted to database: 23 Jan 2017 [6th last week]
8	119	The American Death Penalty Decline Brandon L. Garrett, Alexander Jakubow andAnkur Desai University of Virginia School of Law, University of Virginia - School of Law and University of Virginia School of Law Date posted to database: 4 Feb 2017 [7th last week]
9	111	Life, Liberty, and Trade Secrets: Intellectual Property in the Criminal Justice System Rebecca Wexler Data & Society Research Institute Date posted to database: 21 Feb 2017 [8th last week]
10	107	Neuroethics: Neurolaw Stephen Morse University of Pennsylvania Law School Date posted to database: 16 Feb 2017 [9th last week]