CrimProf Blog

Simon on Death Investigations

Dan Simon (USC Gould School of Law) has posted Minimizing Error and Bias in Death Investigations (Seton Hall Law Review, Vol. 49, 2018) on SSRN. Here is the abstract:

 

One of the prominent developments in the forensic sciences is the emergence of attention to cognitive aspects of forensic examination. Notable in this regard is the recognition that forensic results can be swayed by the examiner’s exposure to non-scientific background information that should arguably have no bearing on the result. To counter these effects, forensic agencies have introduced context management procedures, which are designed to withhold background information from the examiner during critical parts of the examination. Context management procedures are well-suited for some forensic disciplines but apply less obviously to disciplines that entail complex, sprawling, iterative, and open-ended reasoning processes. Notably, the procedures have been met with stern resistance from the field of death investigation. This Article sets out to explore whether and how context management can and should be implemented to the practice of death investigation. 

As currently practiced, the death investigation environment is replete with background information that renders investigative conclusions susceptible to influences borne by non-medical information of unknown reliability.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Drug-Induced Homicide Defense Toolkit Valena Elizabeth Beety, Alex Kreit, Jeremiah Goulka and Leo Beletsky West Virginia University - College of Law, Ohio State University - Michael E. Moritz College of Law, Drug Enforcement and Policy Center, Health in Justice Action Lab and Northeastern University - School of Law; Northeastern University - Bouvé College of Health Sciences Date Posted: 11 Nov 2018	396
2.	Overstating America's Wrongful Conviction Rate? Reassessing the Conventional Wisdom About the Prevalence of Wrongful Convictions Paul G. Cassell University of Utah - S.J. Quinney College of Law Date Posted: 01 Nov 2018	194
3.	The Time Frame Challenge to Retributivism Adam J. Kolber Brooklyn Law School Date Posted: 12 Nov 2018 [4th last week]	76
4.	Response Retributivism: Defending the Duty to Punish Leora Dahan Katz Polonsky Academy, Van Leer Jerusalem Institute Date Posted: 02 Nov 2018 [5th last week]	56
5.	Knowledge and Belief as Criminal Law Mental States Kevin Cole University of San Diego School of Law Date Posted: 26 Nov 2018 [7th last week]	51
6.	Criminal Law and the Constitution of Civil Order R. A. Duff University of Stirling - Department of Philosophy Date Posted: 27 Nov 2018	51
7.	Unwitting Justification Peter K. Westen University of Michigan Law School Date Posted: 14 Nov 2018 [9th last week]	40
8.	Writing Vagrant Nation Risa L. Goluboff University of Virginia School of Law Date Posted: 03 Dec 2018 [10th last week]	38
9.	What Humility Isn’t: Responsibility and the Judicial Role Benjamin L. Berger York University - Osgoode Hall Law School Date Posted: 14 Nov 2018 [new to top ten]	37
10.	Cybersecurity as an Essential Sustainable Economic Development Factor Ioana Vasiu and Lucian Vasiu Babes-Bolyai University - Faculty of Law and Independent Date Posted: 31 Oct 2018 [new to top ten]	35

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Amicus Brief of Professor Orin Kerr on Standards for Compelled Decryption Under the Fifth Amendment Orin S. Kerr University of Southern California Gould School of Law Date Posted: 03 Nov 2018	450
2.	The Uncertain Future of Forensic Science Jennifer Mnookin University of California, Los Angeles (UCLA) - School of Law Date Posted: 13 Dec 2018 [new to top ten]	230
3.	Overstating America's Wrongful Conviction Rate? Reassessing the Conventional Wisdom About the Prevalence of Wrongful Convictions Paul G. Cassell University of Utah - S.J. Quinney College of Law Date Posted: 01 Nov 2018 [2nd last week]	194
4.	The Place of 'the People' in Criminal Procedure Jocelyn Simonson Brooklyn Law School Date Posted: 13 Nov 2018 [3rd last week]	175
5.	Statement of Commissioner Gail Heriot in the U.S. Commission on Civil Rights’ report, Police Use of Force: An Examination of Modern Policing Practices Gail L. Heriot University of San Diego School of Law Date Posted: 16 Nov 2018 [4th last week]	150
6.	The Biased Algorithm: Evidence of Disparate Impact on Hispanics Melissa Hamilton University of Surrey School of Law Date Posted: 29 Oct 2018 [5th last week]	130
7.	Fictional Pleas Thea Johnson University of Maine School of Law Date Posted: 18 Nov 2018 [6th last week]	121
8.	The Paradoxes of Legal Proof: A Critical Guide Michael S. Pardo University of Alabama School of Law Date Posted: 11 Dec 2018 [9th last week]	108
9.	The Second Chance Gap Colleen V. Chien Santa Clara University - School of Law Date Posted: 04 Nov 2018 [7th last week]	104
10.	Managing Digital Discovery in Criminal Cases Jenia Iontcheva Turner Southern Methodist University - Dedman School of Law Date Posted: 30 Oct 2018 [8th last week]	101

Masciandaro & Barone on Cryptocurrency, Usury, and Money Laundering

Donato Masciandaro and Raffaella Barone (Bocconi University - Department of Economics and University of Salento - Department of Law) have posted Cryptocurrency or Usury? Crime and Alternative Money Laundering Techniques on SSRN. Here is the abstract:

 

The article presents a novel dynamic setting to compare old – usury – and new – cryptocurrency – money laundering techniques and uses it for calibration to shed light on their relative role as an effective device for the criminal organizations to clean their illegal revenues. The specialness of the usury contract depends on its role in laundering illegal revenues originating from criminal activities and it is independent from the interest rate level, while the cryptocurrency money laundering is associated with an initial coin offering (ICO) tool. The calibration compares the leverage effect on the overall capital owned by the criminal organizations triggered by the two money laundering techniques.

Cole & Quintel on Transborder Access to e-Evidence

Mark D. Cole and Teresa Quintel (Universite du Luxembourg, Faculty of Law, Economics and Finance, Students and Universite du Luxembourg) has posted Transborder Access to e-Evidence by Law Enforcement Agencies on SSRN. Here is the abstract:

 

As communication nowadays commonly takes place via electronic means, the use of electronic evidence (e-evidence) is becoming a crucial element in criminal investigations. Due to the borderless nature of the internet, many criminal investigations include a cross-border dimension and therefore, commonly require access to electronic data and evidence that are stored outside the territorial jurisdiction of the investigating authority.

Since data are typically held by private companies that are often located in a different country than the investigator, law enforcement authorities (LEAs) are either dependent on the willingness of these service providers to cooperate on a voluntary basis, or to resort to existing legal procedures for obtaining the data for investigations.

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Kennedy on Justification, Excuse and Provocation

Chloë Kennedy (University of Edinburgh - School of Law) has posted Defences: Justification, Excuse and Provocation (in Norman Doe, Mark Hill & John Witte (eds), Christianity and Criminal Law: An Introduction (CUP, 2019)) on SSRN. Here is the abstract:

 

Considers ways that traditional Christian thinking has shaped the defences of 'insanity' (mental disorder), necessity, provocation, and consent and whether these phenomena are necessary corollaries of a Christian contribution to criminal law.

Kerr on Implementing Carpenter

Orin S. Kerr (University of Southern California Gould School of Law) has posted Implementing Carpenter (THE DIGITAL FOURTH AMENDMENT (Oxford University Press)) on SSRN. Here is the abstract:

 

In its June 2018 decision in Carpenter v. United States, the Supreme Court held that cell phone users have Fourth Amendment rights in their historical cell-site location records. Carpenter takes the Fourth Amendment in a new direction, adding new protections for non-content third-party business records. Carpenter prompts fundamental questions of what the Fourth Amendment means in the digital age. The Court is embarking on a new path. But what the new Fourth Amendment will look like, and what its limits may be, remain unclear.

This article is a discussion draft of two chapters from a book project, The Digital Fourth Amendment, forthcoming from Oxford University Press. The book argues that computers and the Internet should trigger new Fourth Amendment rules for the digital age. The facts of the digital world are different from the physical world, and new rules are needed to restore the role of the Fourth Amendment. The Supreme Court has already begun creating a Digital Fourth Amendment in Carpenter and its 2014 decision in Riley v. California. This book develops the rationale for the new rules, based on the theory of equilibrium-adjustment, and it offers a comprehensive picture of how the Fourth Amendment should apply to a wide range of doctrines.

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"When the Police Become Prosecutors"

Alexandra Natapoff has this piece in The New York Times. In part:

In hundreds of misdemeanor courts in at least 14 states, police officers can file criminal charges and handle court cases, acting as prosecutor as well as witness and negotiator. People must defend themselves against, or work out plea deals with, the same police officers who arrested them for low-level offenses like shoplifting or trespassing.

Consider South Carolina, where most of the 400 magistrate and municipal courts had no prosecuting attorneys, according to a 2017 study by the National Association of Criminal Defense Lawyers. The police prosecuted their own misdemeanor arrests, while 90 percent of defendants had no lawyers and so faced the arresting officer-prosecutor on their own. South Carolina also does not require its lower-court judges to be lawyers, so thousands of convictions occur without input from a single attorney.

Godzisz & Rawluszko on Anti-LGBT Hate Crimes

Piotr Godzisz and Marta Rawłuszko (Lambda Warsaw and affiliation not provided to SSRN) have posted Responding to Anti-LGBT Hate Crimes in Poland: One Step Forward, Two Steps Back? (Godzisz, Piotr and Giacomo Viggiani, eds. 2018. Running Through Hurdles: Obstacles in the Access to Justice for Victims of Anti-LGBTI Hate Crimes in Europe. Warsaw: Lambda Warsaw) on SSRN. Here is the abstract:

 

• Hate crimes based on sexual orientation or gender identity are not recognized in Polish law. The fact that sexual orientation and gender identity are not recognized as protected grounds in the Criminal Code affects the understanding of hate crime, reporting of cases, collection of data, and provision of support to victims.
• Numerous understandings of hate crime exist in Poland. This leads to confusion as to what constitutes hate crime and which victim categories should be included.
• Victims of anti-LGBT hate crimes face multiple obstacles in accessing justice. Many rights stemming from the Directive 2012/29/EU are not respected.
• Only a small fraction of anti-LGBT hate crime cases is reported. Police and prosecutors are rarely trained in recognizing anti-LGBT hate crimes, which leads to under recording.
• Publicly-funded victim support services do not address the needs of anti-LGBT hate crime victims. Specialized services offered by LGBT NGOs are often limited.

Lyman on Race, Homicides, and Prosecutions

Tim Lyman (Northeastern University, Institute for Security and Public Policy at the School of Criminology and Criminal Justice) has posted LA 14th JDC (Calcasieu Parish) Study of Race, Homicides, and Prosecutions, 1976-2014 on SSRN. Here is the abstract:

 

This study, examining the racial characteristics of some time death-eligible court cases compared to homicide rates occurring in Louisiana's 14th Judicial District Court (Calcasieu Parish) during the 39 years from 1976 through 2014, is the second JDC study of its kind since the data from the original five JDC studies (JDCs 1, 16, 19, 22, and 24) were aggregated into one study called "Race and the Death Penalty in Louisiana: An Actuarial Analysis."

That study found that racial maldistribution is systemic, occurring in uniform patterns across the jurisdictions. This study is the second study (after JDC 15) to test the theory against new data, and finds that the new data bolsters the theory.

Holder on Co-producing Prosecution

Robyn Holder (Griffith Criminology Institute) has posted Co-producing Prosecution: Old and New Third Party Reforms (Forthcoming in: Revisiting the Interface of Criminal Justice and Regulation, edited by Lennon Chang and Russell Brewer for Routledge) on SSRN. Here is the abstract:

 

Third parties have become stalwarts of regulatory systems and as subjects in regulatory studies yet definitions and analysis are often ‘state-centric’. Regulator, regulatee and third party are also generally posed as self-interested. This pre-publication chapter is inspired by Peter Grabosky’s invitation to look beyond this instrumental focus and beyond that which is sponsored by the state. It shares his interest in exploring the ‘democratization’ of regulatory activity (2013, p. 114-115), and whether third parties always act in the interests of the regulator or state. Grabosky’s scholarly curiosity has seen him take a long view on case studies (1992a) and in forecasting trends (2001, 2007). His methods encourage deeper investigation of activity ‘from below’ and the extent to which it is recent or is location or domain specific. Focusing on the under-examined domain of the public prosecutor, the chapter finds evidence of different third party forms, blended regulatory strategies adopted by them and deep normative motivation to their engagement with and in prosecution.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Drug-Induced Homicide Defense Toolkit Valena Elizabeth Beety, Alex Kreit, Jeremiah Goulka and Leo Beletsky West Virginia University - College of Law, Ohio State University - Michael E. Moritz College of Law, Drug Enforcement and Policy Center, Health in Justice Action Lab and Northeastern University - School of Law; Northeastern University - Bouvé College of Health Sciences Date Posted: 11 Nov 2018	391
2.	Overstating America's Wrongful Conviction Rate? Reassessing the Conventional Wisdom About the Prevalence of Wrongful Convictions Paul G. Cassell University of Utah - S.J. Quinney College of Law Date Posted: 01 Nov 2018	189
3.	Nondelegation and Criminal Law Brenner Fissell Hofstra University - Maurice A. Deane School of Law Date Posted: 24 Oct 2018 [4th last week]	85
4.	The Time Frame Challenge to Retributivism Adam J. Kolber Brooklyn Law School Date Posted: 12 Nov 2018 [5th last week]	74
5.	Response Retributivism: Defending the Duty to Punish Leora Dahan Katz Polonsky Academy, Van Leer Jerusalem Institute Date Posted: 02 Nov 2018 [6th last week]	55
6.	Criminal Law and the Constitution of Civil Order R. A. Duff University of Stirling - Department of Philosophy Date Posted: 27 Nov 2018 [7th last week]	48
7.	Knowledge and Belief as Criminal Law Mental States Kevin Cole University of San Diego School of Law Date Posted: 26 Nov 2018 [9th last week]	45
8.	Who Locked Us Up? Examining the Social Meaning of Black Punitiveness Darren Lenard Hutchinson University of Florida - Levin College of Law Date Posted: 25 Oct 2018 [new to top ten]	41
9.	Unwitting Justification Peter K. Westen University of Michigan Law School Date Posted: 14 Nov 2018 [10th last week]	40
10.	Writing Vagrant Nation Risa L. Goluboff University of Virginia School of Law Date Posted: 03 Dec 2018 [new to top ten]	38

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Amicus Brief of Professor Orin Kerr on Standards for Compelled Decryption Under the Fifth Amendment Orin S. Kerr University of Southern California Gould School of Law Date Posted: 03 Nov 2018	447
2.	Overstating America's Wrongful Conviction Rate? Reassessing the Conventional Wisdom About the Prevalence of Wrongful Convictions Paul G. Cassell University of Utah - S.J. Quinney College of Law Date Posted: 01 Nov 2018 [3rd last week]	185
3.	The Place of 'the People' in Criminal Procedure Jocelyn Simonson Brooklyn Law School Date Posted: 13 Nov 2018 [4th last week]	168
4.	Statement of Commissioner Gail Heriot in the U.S. Commission on Civil Rights’ report, Police Use of Force: An Examination of Modern Policing Practices Gail L. Heriot University of San Diego School of Law Date Posted: 16 Nov 2018 [5th last week]	148
5.	The Biased Algorithm: Evidence of Disparate Impact on Hispanics Melissa Hamilton University of Surrey School of Law Date Posted: 29 Oct 2018 [6th last week]	130
6.	Fictional Pleas Thea Johnson University of Maine School of Law Date Posted: 18 Nov 2018 [7th last week]	112
7.	The Second Chance Gap Colleen V. Chien Santa Clara University - School of Law Date Posted: 04 Nov 2018 [8th last week]	104
8.	Managing Digital Discovery in Criminal Cases Jenia Iontcheva Turner Southern Methodist University - Dedman School of Law Date Posted: 30 Oct 2018 [9th last week]	99
9.	The Paradoxes of Legal Proof: A Critical Guide Michael S. Pardo University of Alabama School of Law Date Posted: 11 Dec 2018 [new to top ten]	92
10.	Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell Judith Resnik, Anna VanCleave, Kristen Bell, Alexandra Harrington, Gregory Conyers, Catherine McCarthy, Jenny Tumas and Annie Wang Yale University - Law School, Yale University - Law School, Yale University - Law School, Yale Law School, Yale University, Law School, Students, Yale University, Law School, Students, Yale University, Law School, Students and Yale University, Law School, Students Date Posted: 18 Oct 2018	83

Mangat on Anonymous Juries

Leonardo Mangat (Cornell University, Law School, Cornell University, Law School, Students) has posted A Jury of Your [Redacted]: The Rise and Implications of Anonymous Juries (Cornell Law Review, Vol. 103, No. 6, 2018) on SSRN. Here is the abstract:

 

Since their relatively recent beginnings in 1977, anonymous juries have been used across a litany of cases: organized crime, terrorism, murder, sports scandals, police killings, and even political corruption. And their use is on the rise. An anonymous jury is a type of jury that a court may empanel in a criminal trial; if one is used, then information that might otherwise identify jurors is withheld from the parties, the public, or some combination thereof, for varying lengths of time.

Though not without its benefits, anonymous juries raise questions regarding a defendant’s presumption of innocence, the public’s right to an open trial, the broad discretion afforded to judges, and the impacts of anonymity on juror decisionmaking.

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Lott on Mass Public Shootings

John R. Lott (Crime Prevention Research Center) has posted Comparing the Global Rate of Mass Public Shootings to the U.S.’s Rate and Comparing Their Changes Over Time on SSRN. Here is the abstract:

 

The U.S. is well below the world average in terms of the number of mass public shootings, and the global increase over time has been much bigger than for the United States. 

Over the 18 years from 1998 to 2015, our list contains 2,354 attacks and at least 4,880 shooters outside the United States and 53 attacks and 57 shooters within our country. By our count, the US makes up less than 1.15% of the mass public shooters, 1.49% of their murders, and 2.20% of their attacks. All these are much less than the US’s 4.6% share of the world population. Attacks in the US are not only less frequent than other countries, but they are also much less deadly on average.

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Mnookin on Forensic Science

Jennifer Mnookin (University of California, Los Angeles (UCLA) - School of Law) has posted The Uncertain Future of Forensic Science (147 Daedalus 99 (Fall 2018)) on SSRN. Here is the abstract:

 

Forensic science is at a crossroads. In the last two decades, often-used forms of pattern evidence, such as fingerprint, tool mark, and bite mark identification, have faced significant criticism for lacking adequate scientific validation or proven reliability. Is this the beginning of a sea change, signaling the rise of a science-based, empirically grounded approach to these forms of evidence, both in the courtroom and in the crime laboratory? Or has the increased attention produced Band-Aids rather than meaningful and lasting cures? This essay argues that the current state of forensic science reform is both “half empty” and “half full.” Looking first at bite mark evidence, then at modifications in the language used by forensic scientists for their courtroom testimony, and, finally, at the creation and the elimination of the National Commission on Forensic Science, this essay argues that we have thus far seen modest and meaningful – but far from adequate or transformative – reform. Our best hope for sustained, substantial changes necessary for improving forensic science evidence within our system of justice requires the creation of another national commission or other institutional body, made up of both research scientists and other institutional stakeholders, and situated as to prevent “capture” by either forensic practitioners or advocates within our adversarial system.

Gless on Predictive Policing

Sabine Gless (University of Basel) has posted Predictive Policing – In Defense of ‘True Positives’ (Emre Bayamlıoğlu, Irina Baraliuc, Liisa Janssens, Mireille Hildebrandt (eds). Being Profiled: Cogitas Ergo Sum. 10 Years of Profiling the European Citizen, Amsterdam University Press 2018, 76-83) on SSRN. Here is the abstract:

 

Predictive policing has triggered a heated debate around the issue of ‘false positives’. Biased machine training can wrongly classify individuals as high risk simply as a result of belonging to a particular ethnic group and many agree such persons should not have to shoulder the burden of over-policing due to an inherent stochastic problem. The paper takes a pragmatic stand and argues that ‘true positives’, i.e. individuals who have been correctly identified as perpetrators, offer the best opportunity to address the issue of biased profiling. 

The first reason is purely pragmatic – they are already party to a criminal investigation and, as such, have a strong incentive to challenge law enforcement methods and scrutinize policing methods on an individual basis. The second reason is more general (and commonly subscribed to) – that discriminatory stops and searches are inherently unfair, threaten social peace, and frustrate targeted groups.

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van Kempen on Vulnerable Defendants

Piet Hein van Kempen (Radboud University Nijmegen) has posted The Right to Fair Preliminary Investigation and Trial for Vulnerable Defendants. The law of the European Convention on Human Rights, European Union Law and the Case of the Netherlands (in Ronnie Mackay & Warren Brookbanks (eds), Fitness to Plead: International and Comparative Perspectives (Oxford: Oxford University Press 2018) pp. 231-253 (Oxford Monographs on Criminal Law and Justice)) on SSRN. Here is the abstract:

 

Mainly as a result of the nature of criminal procedure in the Netherlands, which till recently could be characterized as a modern moderate inquisitorial system, the fitness to plead principle has been rather underdeveloped here. This chapter analyses how the European Convention on Human Rights, EU Directives and the increase of adversarial elements in an originally inquisitorial criminal justice system are now catalysing the fitness to plead principle. Fourteen recommendations will be provided for what is considered a necessary reinforcement of the legal position of defendants who possess insufficient abilities to adequately participate during criminal proceedings – both preliminary investigation and trial – or who are even unfit to stand trial. The recommendations are based on a detailed analyses of criminal procedure law of the Netherlands, case law of the European Court of Human Rights and several EU Directives that are relevant for the fitness to plead principle.

Germain on Criminal Juries in France and Belgium

Claire M. Germain (University of Florida - Levin College of Law) has posted Trials by Peers: The Ebb and Flow of the Criminal Jury in France and Belgium on SSRN. Here is the abstract:

 

The participation of lay jurors in criminal courts has known much ebb and flow both in France and in Belgium. These two countries belong to the civil law tradition, where juries are the exception rather than the rule in criminal trials, and they only exist in criminal cases, not civil cases. In spite of some similarities, there are substantial differences between the two countries, and their systems will be examined in turn.

In France, the Cour d’assises itself was inherited from the French Revolution. Since a law of 1941, it is a mixed jury system, meaning that lay citizens sit together with professional judges, The Cour adjudicates severe crimes only, mostly rapes and murders. A pilot program extended lay participation to criminal courts beyond the Cour d’assises, but was stopped and resulted in the reduction of the number of lay citizens on the Cour d’assises.

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van Kempen & Bemelmans on EU Protections of Substantive Criminal Law Principles

Piet Hein van Kempen and Joeri Bemelmans (Radboud University Nijmegen and Radboud University Nijmegen) have posted EU Protection of the Substantive Criminal Law Principles of Guilt and Ne Bis in Idem Under the Charter of Fundamental Rights: Underdevelopment and Overdevelopment in an Incomplete Criminal Justice Framework (New Journal of European Criminal Law 2018, Vol. 9(2) 247–264) on SSRN. Here is the abstract:

 

European Union (EU) law is increasingly influencing the substantive criminal law of the member states. In this area of law – in which criminal liability and subsequent punishment are at stake – protection of fundamental rights is indispensable, as a result of which means the Charter has great potential relevance. This article examines the protection of fundamental rights by Union law in the field of substantive criminal law since the Charter has become binding and compares it to the protection offered by the European Court of Human Rights (ECtHR). The article focuses on two fundamental rights that rule substantive criminal law: the principle of guilt and the ne bis in idem principle. It holds that EU law still does not provide a full foundation to both principles of criminal substantive law. Given the particular nature of EU law, the practice of the institutions in substantive criminal law, and the current case law of the European Court of Justice and the ECtHR, we argue that the current level of protection in these parts of the criminal law is insufficiently convincing. Progress needs to be made in the recognition and appreciation of the principle of guilt, while the ne bis in idem principle might be overextended.