CrimProf Blog

Graham on The Original Writing Rule

Michael H. Graham (University of Miami - School of Law) has posted The Original Writing (Best Evidence) Rule: A Primer (55 CRIM.L.BULL. 441 (2019)) on SSRN. Here is the abstract:

 

Article X of the Federal Rules of Evidence codifies what has misleadingly been named the “Best Evidence Rule”, a rule of preference for the production of the original of a writing, recording or photograph when the contents of the item are sought to be proved. Secondary evidence establishing the content of the item is admissible only if the absence of all originals is adequately explained.

“Where proof is to be made of some fact which is recorded in a writing, the best evidence of the contents of the writing consists in the actual production of the document itself. Any proof of a lower degree is secondary evidence which will be received as proof only where nonproduction of the writing is properly ac-counted for. The contents of a written instrument may not, as a general rule, be proved by parole, unless the failure to produce the paper itself is accounted for. The principle is controlling in every case wherein it is sought to prove the contents of written instruments of any kind whatsoever.” 20 Am.Jur., Evidence § 406 at 366–67 (1939).

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Amarante on Criminalizing Immigrant Entrepreneurs (and Their Lawyers)

Eric Amarante (University of Tennessee College of Law) has posted Criminalizing Immigrant Entrepreneurs (and Their Lawyers) (Boston College Law Review, Vol. 61, No. 4, 2020) on SSRN. Here is the abstract:

 

Many undocumented immigrants turn to entrepreneurship to escape unsafe working conditions and better their economic prospects. These business owners often use limited liability companies or worker cooperatives as the legal entity for their business, and transactional lawyers are increasingly stepping up to help these entrepreneurs form their businesses. Unfortunately, these lawyers could be charged with a felony. This is because the Immigration Reform and Control Act of 1986 (“IRCA”) prohibits anyone from encouraging an undocumented person to reside in the United States. This impermissible encouragement has been construed quite broadly to include everything from employing undocumented housekeepers to procuring falsified documents for citizenship applications. Courts have inconsistently applied IRCA, with some arguing that the encouragement restriction can reach legal advice, with others expressing concern with the breadth of IRCA’s encouragement prohibition. Of the latter, perhaps the most famous is the Ninth Circuit’s decision U.S. v. Sineneng-Smith, which found IRCA’s encouragement prohibition unconstitutionally overbroad under the First Amendment. Unfortunately, Sineneng-Smith remains an outlier, and the Third, Fourth, Seventh, and Eleventh Circuits have construed IRCA’s encouragement prohibition in a manner that avoids constitutional issues.

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Chin & McFadden on Forensic Experts

Jason Chin and Rory McFadden (Sydney Law School and University of Queensland - T.C. Beirne School of Law) have posted Expert Witness Codes of Conduct for Forensic Practitioners: A Review and Proposal for Reform on SSRN. Here is the abstract:

 

In response to many miscarriages of justice attributed to forensic science, stakeholders in the justice system have proposed several reforms. One such reform is the broader use of expert witness codes of conduct to control the way in which forensic scientific evidence is reported in legal proceedings. In this article, the authors attempt to continue this discussion in three ways. They (1) review the use of expert witness codes of conduct in Australia and (2) compare that to their use in the civil context in Canada. The authors rely on that analysis to (3) suggest that a consensus-based code of conduct, modelled on reforms going on outside of forensic science, may assist in encouraging fuller and more cautious reporting by forensic scientists in Canadian courts.

Shestak & Karasvova on Criminal Regulation of Assisted Reproductive Technologies

Viktor Shestak and Irina Karasyova (Moscow State Institute of International Relations (MGIMO) and MGIMO University) have posted Criminal Regulation of Assisted Reproductive Technologies (Criminal legislation of Russia: the main problems of application and areas for improvement: materials of all-Russian scientific and practical conference (28 November 2019). Mahachkala: the North-Caucas) on SSRN. Here is the abstract:

 

The authors address the issue of criminal regulation of the relations arising in connection with the use of reproductive technologies. To address the subject, Russian experience and international practices in the use of assisted reproductive technologies have been studied, the respective legal aspect has been analyzed, and common features and differences in legal regulation mechanisms in the national and foreign laws have been identified. The research is focused on the relevant modern conditions for implementation of criminal liability for crimes related to reproductive technologies in the Russian Federation. The authors propose some ways to upgrade and update the criminal law, including in regard to improvement of the concept of criminal liability for crimes in this area.

Gershowitz on Disparities in Punishing Pill Mill Doctors

Adam M. Gershowitz (William & Mary Law School) has posted Punishing Pill Mill Doctors: Sentencing Disparities in the Opioid Epidemic on SSRN. Here is the abstract:

 

Consider two pill mill doctors who flooded the streets with oxycodone and other dangerous opioids. The evidence against both doctors was overwhelming. They each sold millions of opioid pills. Both doctors charged addicted patients hundreds of dollars in cash for office visits that involved no physical examinations and no diagnostic tests. Instead, the doctors simply handed the patients opioids in exchange for cash. To maximize their income, both doctors conspired with street dealers to import fake patients – many of them homeless – so that the doctors could write even more prescriptions. Both doctors made millions of dollars profiting off the misery of people addicted to opioids. Even though juries convicted both doctors of similar criminal charges, they received drastically different sentences. The first doctor was sentenced to 5 years, while the second doctor received a 35-year-sentence.

This article reviews 25 of the worst opioid pill mill doctors to be sentenced in the last five years, and it details drastic sentencing disparities in the federal system. In more than half the cases, judges departed well below the Federal Sentencing Guidelines to impose sentences that were decades less than would be expected.

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Cui et al. on Child Trafficking for Illegal Adoptions in China

Can Cui, Sha Peng, Cai Li, Chuanchuan Zhang, Zhen Wang, Xiaoling Zhang and Liyuan Wei (Wuhan University, affiliation not provided to SSRN, Wuhan University, Central University of Finance and Economics (CUFE) - School of Economics, affiliation not provided to SSRN, City University of Hong Kong (CityUHK) and Wuhan University) have posted Clan Culture, One-Child Policy and Child Trafficking of Illegal Adoptions in China on SSRN. Here is the abstract:

 

Child trafficking is an increasing visible global concern for bringing numerous family tragedies worldwide. For decades, social scientists have continued digging the underlying causing factors of child trafficking in order to introduce effective policy interventions. Yet, existing studies are mostly limited to conjectures of casualty, but little direct evidence has been provided to support the conjectures. Here we manually collected over 18,000 cases of self-reported child trafficking for illegal adoption in China during 1960-2000. By matching the trafficking data with culture and policy data, we proved a common long-standing conjecture in the science community that both the strength of clan culture (proxied by genealogies) and the One-Child Policy (proxied by fine rate for violating the policy) are positively associated with the demand of trafficked children in China, at the prefectural level. We further confirmed the association from empirical test of the normal adoption, which has the same incentives with illegal adoptions. Our findings suggest that culture and policy have complex interactions and might cause unexpected social consequence. Our results support that the cessation of the birth control policy in China could help reduce the child trafficking rate and family tragedies.

Shestak & Goncharova on Juvenile Delinquency in Russia

Viktor Shestak and VICTORIA GONCHAROVA (Moscow State Institute of International Relations (MGIMO) and MGIMO University) have posted Criminological Particularities of Juvenile Delinquency in Russia on SSRN. Here is the abstract:

 

The paper considers the factors that make criminology of juvenile delinquency particular. The research has been carried out to identify the individual features of, and causes for, delinquency in the group of 14-15 year olds. Our attention has been also paid to prevention of deviant behavior among juveniles and reduction of the crime rate. Dynamics have been provided and causes for criminal offences committed by groups of 14-15 year olds and 16-17 year olds have been identified. Among others, such important particularities as the image of the juvenile offender and the geography of crimes have been provided.

Harvey on Hate Speech

David John Harvey (University of Auckland) has posted Dangerous Speech - Some Legislative Proposals on SSRN. Here is the abstract:

 

This paper considers steps that can be taken to legislate against hate speech.

The first issue is the term “hate speech” itself and, in light of the proposals advanced, this emotive and largely meaningless term should be replaced with that of “dangerous speech” which more adequately encapsulates the nature of the harm that the law should address.

The existing criminal provisions relating to what I call communications offences are outlined. Proposals are advanced for an addition to the Crimes Act to fill what appears to be a gap in the communications offences and which should be available to both individuals and groups. A brief discussion then follows about section 61 of the Human Rights Act and section 22 of the Harmful Digital Communications Act. It is suggested that major changes to these pieces of legislation is unnecessary.

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Simmons on Terry and Robot Cops

Ric Simmons (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted Terry in the Age of Automated Police Officers (Seton Hall Law Review, Spring 2020 Forthcoming) on SSRN. Here is the abstract:

 

Robots are now commonplace tools for law enforcement. The current generation of police robots is largely limited to remote-controlled robots that are designed to perform specific tasks, such as search and rescue drones and bomb disposal robots. However, the use of robots in law enforcement is likely to increase dramatically in the near future, since robots provide numerous benefits to police departments, including greater efficiency, increased capability, and enhanced safety for human officers. Therefore, in the near future, law enforcement agencies will begin to deploy semi-autonomous robots for two primary and interrelated functions: surveillance and patrol.

These new machines will dramatically increase the number of interactions between civilians and police robots, which will force courts to reconsider the rules of engagement for when police confront suspects. Many of the existing rules give the police broad powers to search or use force in order to protect officer safety; however, if no human police officer is on the scene, there is no justification for these broad powers.

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Appleman on Opioids, Addiction Treatment, and Eugenics

Laura I Appleman (Willamette University College of Law) has posted Opioids, Addiction Treatment, and the Long Tail of Eugenics (80 Ohio St. L. J. 841 (2019)) on SSRN. Here is the abstract:

 

Our attitude, treatment, and punishment of opioid addiction partly results from the long, intertwined history of eugenics and incarceration. There is a thread of eugenics-based philosophy undergirding our widespread imprisonment of the poor, disabled, and dependent. The current approach to opioid addiction in the criminal justice and sentencing worlds reflects this bias, hindering our ability to best treat the opioid crisis. Our 21st century tactics to combat the opioid addiction crisis unwittingly track the methods used to address the widespread use of opioids in the late 19th and early 20th centuries, with equally troubling results. Indeed, addiction to pharmaceutical opiates is no recent problem; historically, iatrogenic drug use has been far more extensive than illicit drug use. Old errors are being re-enacted as we attempt to solve the problems of opioid-addicted offenders during sentencing, inside correctional facilities, and on release. Accordingly, before we craft workable policies to combat the opioid crisis, we must fully explore and understand the history of iatrogenic opioid addiction, to avoid making the same mistakes.

Tillman on Bribery and Impeachment

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted Defining a Theory of 'Bribery' for Impeachment (Josh Blackman & Seth Barrett Tillman, Defining a Theory of 'Bribery' for Impeachment, Lawfare: Hard National Security Choices (Dec. 6, 2019, 12:43 PM)) on SSRN. Here is the abstract:

 

The proposed articles of impeachment threaten to criminalize routine politics, such as log-rolling, by removing officeholders with dueling motivations. If Congress engages in and legitimates such tactics against the president, it may soon find itself on the receiving end of Justice Department investigations, indictments and trials. Such a precedent would make impeachment and indictments the norm whenever Congress and the presidency are held by different parties, and each branch disagrees with the policy goals of the other.

Suzuki & Takeuchi on Youth Justice in Japan

Masahiro Suzuki and Kenji Takeuchi (Central Queensland University and affiliation not provided to SSRN) have posted Future of Youth Justice in Japan (Youth Justice 2019 doi: 10.1177/1473225419869988) on SSRN. Here is the abstract:

 

Japanese youth justice has experienced several reforms to date. Currently, a radical revision is under consideration: to lower the age of criminal majority from 20 to 18 years. Japanese scholars and practitioners have since been engaged in debates over this proposal. Drawing on existing empirical research on youth offending and juvenile justice, the purpose of this article is to advance a critical analysis on (in)appropriateness of lowering the age of criminal majority. By focusing on its potential consequences, we also discuss what the future of youth justice in Japan would look like. We conclude with offering research implications.

Erbas on Cross-Border Surrogate Motherhood

Rahime Erbaş (Istanbul University - Faculty of Law) has posted Cross-Border Surrogate Motherhood from a Criminal Law Perspective (Fiat Iustitia 2019; 2: 27-43) on SSRN. Here is the abstract:

 

The role of state in an economic model and its consequence in genealogy fuse with the sovereignty of the state, coined as bio-politics and bio-power by Michel Foucault, as a power over life and death. To illustrate, punishing abortion or allowing new productive technologies could be regarded as issues lying on the sovereignty of the state. Surrogate motherhood appears as one of the challenges of the 21th century due to these two concepts. As opposed to earlier times, the current more advanced stage of scientific, technological, communication and traveling possibilities plays an essential role. Furthermore, the legal perception of surrogacy in a global perspective lies on the grey area. In other words, whether it is legal or prohibited varies from country to country, which creates a legal loophole.

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Ahmed on Reynolds v. McNichols

Aziza Ahmed (Northeastern University - School of Law) has posted Commentary on Reynolds v. Mcnichols (Feminist Judgements: Health Law (Seema Mahopatra and Lindsay Wiley eds.) Cambridge University Press. (Forthcoming)) on SSRN. Here is the abstract:

 

The 1973 case Reynolds v McNichols concerns a woman who was repeatedly arrested on suspicion of and for “prostitution.” During these arrests, Roxanne Reynolds, the defendant, was subject to forced examination and treatment. The arrests and examinations were authorized by Section 735 of the Revised Municipal Code of the City and County of Denver, which directed the Department of Health and Hospitals “to use every available means to ascertain the existence of and investigate all suspected cases of communicable venereal disease, and to determine the sources of such infections.” Reynolds argued that the ordinance was unconstitutional because it was irrational, arbitrary, and subjected Reynolds to involuntary treatment and that the ordinance violated the Equal Protection Clause of the Fourteenth Amendment because it was being applied against female sex workers and not their male clients. Despite her compelling claims, the original decision found for the state, holding that the acts of the state the involuntary detention and treatment were within the police power “designed to protect public health.” The court tossed out her equal protection claim, addressing it only to say that because there was no evidence that Reynolds had actually had sex with her clients there was no reason that the men should be arrested.

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Brown on Ramsey Clark and Public Enemies

Lonnie T. Brown (University of Georgia School of Law) has posted 'Introduction: A Puzzling Journey' - Defending the Public’s Enemy: The Life and Legacy of Ramsey Clark (Stanford University Press 2019) (Defending the Public’s Enemy: The Life and Legacy of Ramsey Clark (Stanford University Press 2019)) on SSRN. Here is the abstract:

 

What led a former United States Attorney General to become one of the world's most notorious defenders of the despised? Defending the Public's Enemy examines Ramsey Clark's enigmatic life and career in a quest to answer this perplexing question.

The book explores how Clark evolved from our government's chief lawyer to a strident advocate for some of America's most vilified enemies. Clark's early career was enmeshed with seminally important people and events of the 1960s: Martin Luther King, Jr., Watts Riots, Selma-to-Montgomery March, Black Panthers, Vietnam. As a government insider, he worked to secure the civil rights of black Americans, resisting persistent, racist calls for more law and order. However, upon entering the private sector, Clark seemingly changed, morphing into the government's adversary by aligning with a mystifying array of demonized clients—among them, alleged terrorists, reputed Nazi war criminals, and brutal dictators, including Saddam Hussein.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Dissenting Statement of Commissioner Gail Heriot in In the Name of Hate: Examining the Federal Government's Role in Responding to Hate Crimes, a Report of the U.S. Commission on Civil Rights Gail L. Heriot University of San Diego School of Law Date Posted: 13 Nov 2019	409
2.	The Evolving Federal Response to State Marijuana Reforms Robert A. Mikos Vanderbilt University - Law School Date Posted: 01 Nov 2019	80
3.	Methods and Severity: The Two Tracks of Section 12 Lisa Kerr and Benjamin L. Berger Queen's University - Faculty of Law and York University - Osgoode Hall Law School Date Posted: 17 Oct 2019 [5th last week]	70
4.	Data Scams Roger Allan Ford University of New Hampshire Franklin Pierce School of Law Date Posted: 04 Dec 2018 [6th last week]	66
5.	Retributive Abolitionism Rafi Reznik Georgetown University Law Center Date Posted: 09 Sep 2019 [7th last week]	60
6.	Explaining Criminal Sanctions in Intellectual Property Law Irina D. Manta Hofstra University - Maurice A. Deane School of Law Date Posted: 29 Oct 2019 [8th last week]	57
7.	Edward Snowden, National Security Whistleblowing, and Civil Disobedience David Pozen Columbia University - Law School Date Posted: 02 Dec 2019 [9th last week]	47
8.	Making Sense of Corporate Criminals: A Tentative Taxonomy William Robert Thomas University of Michigan Ross School of Business Date Posted: 21 Nov 2019 [10th last week]	42
9.	Captured by Evil: The Idea of Corruption in Law Laura Underkuffler Cornell University - Law School Date Posted: 15 Nov 2019 [new to top ten]	38
10.	The Trans Panic Defense Revisited Cynthia Lee George Washington University Law School Date Posted: 08 Nov 2019 [new to top ten]	36

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Disaggregating Ineffective Assistance of Counsel Doctrine: Four Forms of Constitutional Ineffectiveness Eve Brensike Primus University of Michigan Law School Date Posted: 08 Nov 2019	476
2.	Dissenting Statement of Commissioner Gail Heriot in In the Name of Hate: Examining the Federal Government's Role in Responding to Hate Crimes, a Report of the U.S. Commission on Civil Rights Gail L. Heriot University of San Diego School of Law Date Posted: 13 Nov 2019	409
3.	The Problem of Problem-Solving Courts Erin Collins University of Richmond School of Law Date Posted: 09 Dec 2019 [new to top ten]	239
4.	Facial Recognition and the Fourth Amendment Andrew Guthrie Ferguson University of the District of Columbia - David A. Clarke School of Law Date Posted: 25 Oct 2019 [3rd last week]	203
5.	Misdemeanor Appeals Nancy J. King and Michael Heise Vanderbilt University - Law School and Cornell Law School Date Posted: 11 Nov 2019 (4th last week)	144
6.	A Perfect Storm: Hong Kong - Mainland China Rendition of Fugitive Offenders 2019 Albert H. Y. Chen The University of Hong Kong - Faculty of Law Date Posted: 23 Oct 2019 [5th last week]	123
7.	The Law of Corporate Investigations and the Global Expansion of Corporate Criminal Enforcement Jennifer Arlen and Samuel W. Buell New York University School of Law and Duke University School of Law Date Posted: 31 Oct 2019 [6th last week]	119
8.	Defending Progressive Prosecution Jeffrey Bellin William & Mary Law School Date Posted: 12 Nov 2019 [9th last week]	105
9.	Beyond Compare? A Codefendant's Prison Sentence As a Mitigating Factor in Death Penalty Cases Jeffrey L. Kirchmeier CUNY School of Law Date Posted: 21 Oct 2019 [8th last week]	102
10.	The Racial Composition of Forensic DNA Databases Erin Murphy and Jun Tong New York University School of Law and New York University School of Law Date Posted: 09 Nov 2019	78

Mungan on Discrimination and Deterrence

Murat C. Mungan (George Mason University - Antonin Scalia Law School, Faculty) has posted Discrimination and Deterrence with Enforcer Liability (Am. L. & Econ. Rev., Forthcoming) on SSRN. Here is the abstract:

 

Taste-based discrimination (i.e. discrimination due to racist preferences) receives more attention than statistical discrimination in the enforcement literature, because the latter allows enforcers to increase their 'success rates'. I show here that when enforcers' incentives can be altered via liabilities and rewards, all types of discrimination reduce deterrence. Moreover, adverse effects of statistical discrimination on deterrence are more persistent than similar effects due to taste-based discrimination. I identify crime minimizing liabilities and rewards when enforcers engage in racial discrimination, and consider the robustness of the analysis in alternative settings.

Henshaw et al. on Parole and Therapeutic Jurisprudence

Max Henshaw, Lorana Bartels and Anthony Hopkins (HWL Ebsworth Lawyers, Australian National University (ANU) - ANU Centre for Social Research and Methods and University of Canberra – Faculty of Law) have posted To COMMIT Is Just the Beginning: Applying Therapeutic Jurisprudence to Reform Parole in Australia (University of New South Wales Law Journal, Vol. 42, No. 4, 2019) on SSRN. Here is the abstract:

 

Recidivism represents the failure of the criminal justice system to adequately respond to cycles of crime and dysfunction. With increasing reoffending rates, Australia is demonstrably failing to reduce recidivism and facilitate desistance from crime. Therapeutic jurisprudence (‘TJ’) seeks to understand how law and legal process operate therapeutically. This article considers TJ insights and principles to examine the extent to which Australian parole laws and processes promote desistance. We argue that applying a TJ analysis provides a valuable perspective to understanding how these laws can operate to break the cycle of recidivism in Australia. We then examine the Compliance Management or Incarceration in the Territory (‘COMMIT’) program recently implemented in the Northern Territory, drawing on legislative and policy frameworks and comments from key stakeholders. We find that COMMIT appears to be a promising, TJ-informed, reform, which may represent a shift towards a more therapeutic, and effective, approach to parole compliance.

MacLean on Confidence in Law Enforcement when African-Americans Are Underrepresented on the Force

Charles MacLean (Metropolitan State University School of Law Enforcement and Criminal Justice) has posted Confidence in Law Enforcement When African-Americans are Underrepresented on the Force: An Exploratory Study on SSRN. Here is the abstract:

 

This dissertation explores the prediction that when African-Americans are underrepresented among sworn officers in a community’s local law enforcement agencies compared to the African-American proportions in that community’s overall population, African-American civilians’ confidence in their local law enforcement agencies may suffer, leading to impaired respect for law, reduced civilian cooperation with law enforcement, and civilian impressions of weakened procedural justice and fairness. With low civilian confidence, the argument goes, one could expect an enhanced sense of disenfranchisement among the underrepresented sub-populations.

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