Friday, January 31, 2020
This current article in the Criminal Law Bulletin is the last of 58 articles in total published on Evidence. The series began in 2005. An earlier similar but far less ambitious series of Evidence articles, 59 in total, appeared in the Criminal Law Bulletin from 1980 to 1990. After 45 years as an academic commentator on Evidence and Professor of Law, for ten years at Illinois, followed by 35 years in Miami, I retired from active teaching in May of 2019. I will continue to author the Handbook of Illinois Evidence and the Handbook of Federal Evidence.
Summary of Proposed Rule Amendments:
Over the course of the 57 prior articles in the current Evidence series, many specific proposals have been put forth to amend the Federal Rules of Evidence along with on occasion the Federal Rules of Civil or Criminal Procedure. These proposed rule changes are contained in rule numerical order at the conclusion of the article. Each proposed amended rule appears with a footnote corresponding to the article from which it is taken.
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January 31, 2020 | Permalink
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The law and doctrines of criminal attempts and complicity illustrate the longstanding and fundamental tenet of Anglo-American criminal law that the blame and condemnation of the political community, which gives criminal punishment its distinctive character, attaches primarily to actors’ states of mind rather than to the harms they cause or results they bring about. This focus on blameworthy states of mind both reflects and has been shaped by the similar emphasis in Christian scripture, tradition, and moral teaching. And so, an examination of criminal attempts and complicity is an opportunity to explore Christianity’s influence on the theory, content, and operation of the criminal law. It also reminds us of a central Christian concern that is and has been located, for the most, outside the scope of the criminal law: Christian moral teaching not only enjoins the avoidance of wrongful acts, but also the cultivation and practice of virtue. A Christian life of discipleship, it has been said, “is not simply about performing certain types of actions. It is a vocation, a transformation of one’s very self.” However, this aretaic dimension of Christian morality and moral theology, unlike the nexus between culpability and choice, is difficult to find in the criminal law, which is inclined more toward proscribing acts than prescribing character, more toward forbidding bad conduct than facilitating good character, more toward deterring decisions than transforming selves. It is worth asking why.
January 31, 2020 | Permalink
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Insofar as the intention is to provide legal protection, to speak of victims and of certain victims in particular, implies recalling the obscure past that enveloped them with regard to their invisibility in the criminal system as a whole. Society assumed the burden of the criminal response, through the expropriation of the victims’ rights by the State in the interests of that social safeguard. We have for centuries accepted that it was what society required –it was the conquest of civilization, ending “an eye for an eye and a tooth for a tooth” and the lex talionis. That was the best solution, although the outcome of these responses to that situation, owing to frustration, disenchantment and the inoperability, on occasions, of the model of social response, have prompted progress towards a more active role of victims in the criminal response and in the modulation of that response. In other words, to go beyond the preventive approach, and to incorporate resocialization or the restorative approach. This would open a wider range of possibilities that should not be exclusively considered as previously addressed or with a particular person in mind (prevention, society; resocialization, the accused; reparation, victims). Rather, they should all imply together that society can act and assume the burden in the face of criminally punishable conduct. Undeniable steps have been taken at national and international centres that have implied progress towards achieving victim visibility. And that progress has necessarily to include criminal mediation, which has been acquiring, over recent decades, an extended scope.
January 31, 2020 | Permalink
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Thursday, January 30, 2020
Authentication of things and identification of people represent a special aspect of relevancy, Fed.R.Evid. 401. To illustrate, a telephone conversation offered to show knowledge on the part of a speaker is not relevant unless the person speaking is sufficiently identified, nor is a purported letter of the defendant relevant unless it is properly shown that the defendant actually wrote the letter. Proof of authenticity or identification may be by either direct or circumstantial evidence.
Satisfaction of the requirement of authentication or identification is a matter to be approached in accordance with Fed.R.Evid. 104(b). Accordingly, once the court finds that evidence has been introduced sufficient to permit a reasonable juror to find that the matter in question is what its proponent claims it is, a sufficient foundation for introduction in evidence has been laid, Fed.R.Evid. 104(b). When an item is offered into evidence, the court may permit counsel to conduct a limited cross-examination, referred to as voir dire, on the foundation offered. In reaching its determination, the court must view all the evidence introduced as to authentication or identification, including issues of credibility, most favorably to the proponent. The ultimate decision as to whether a person, document, or item of real or demonstrative evidence is as purported is for the trier of fact. Of course, the party who opposed introduction of the evidence may still offer contradictory evidence before the trier of fact or challenge the credibility of the supporting proof in the same way that he can dispute any other testimony. However, upon consideration of the evidence as a whole, if a sufficient foundation has been laid in support of introduction, contradictory evidence goes to the weight to be assigned by the trier of fact and not to admissibility.
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January 30, 2020 | Permalink
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This Article produces insights, ideas, and findings which link mass shootings and communal responses in the United States and on American Indian reservations. This Article compares the aftermath of these tragedies in non-indigenous communities with the responses when the tragedies have occurred in certain Native American communities, including comparisons between indigenous and non-indigenous courts. It looks to the roots of the Native American approach in indigenous historical evidence. Described is an institutional weakness in the Anglo-European judicial model in how it responds to the aftermath of heinous crimes. Explored is the adaptation of certain practices from indigenous peoples as a method of contributing to healing, closure, and reconciliation following heinous criminal behavior. Further explored is the possibility of incorporating face-to-face, interpersonal interactions between mass shooting victims, offenders, and their families.
January 30, 2020 | Permalink
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Wednesday, January 29, 2020
That police brutality is a common occurrence in HBO’s The Wire does not set it apart from other filmic depictions of police. What is distinctive is the fact that police violence is neither condoned nor relegated exclusively to a few “bad apples.” Instead, The Wire depicts structural causes of police violence by showing how organizational dysfunction leads some of the very best police officers on the force to commit unjustified and inexcusable violence. We explore four structural mechanisms the show depicts: the police code of loyalty: the hyper-masculine need to project power and dominance; the strategic imperatives of the War on Drugs; and a collective action problem among police. The implication of this complex depiction is that the elimination of police brutality requires far more than removal of a few bad officers. We conclude by briefly exploring how police departments might reverse the structural and institutional mechanisms causing police violence.
January 29, 2020 | Permalink
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The Nazis compelled, enlisted, and ‘promoted’ detainees into the administration of the labor and death camps. These detainees were called Kapos. The Kapos constitute a particularly contested, and at times tabooified, element of Holocaust remembrance. Some Kapos deployed their situational authority to ease the conditions of other prisoners, while others acted cruelly and committed abuses. This project explores treatment of the Kapo on film. This paper considers two films: Kapò (1959 dir. Pontecorvo (Italy)) and Kapo (2000 dir. Setton (Israel)), and additionally one stage play, Kapo in Jerusalem (2013 dir. Lerner (Israel)) which derives from a film of the same title (2014 dir. Barbash (Israel)). While these works do not explicitly consider international criminal law, they vivify themes of agency, blame, survival, shame, sacrifice, and recrimination with which law grapples. These two films vary in genre: a pulpy feature fiction film (Kapò (1959)) and a controversially-received documentary reportage (Kapo 2000); the stageplay (Kapo in Jerusalem), itself derivative of a film of the same title, is a fictional (and gripping) drama drawn from the experiences of an actual Auschwitz Kapo. This paper interrogates how these creative works portray victim-perpetrator circularity; how they contribute to history, memory, and recollection; and didactically how they explain ‘what happened,’ ‘why,’ and ‘what to do now’. This paper additionally contrasts cinematographic accounts and criminal law’s accounts, in particular, those in Israel’s Kapo trials. In the 1950’s, the Knesset passed legislation – the Nazi and Nazi Collaboration Punishment Act – to criminally charge suspected Jewish Kapos who had emigrated to the state of Israel following the Holocaust. Authorities conducted approximately forty prosecutions. The trials were awkward, the language of judgment gnarly, the absolutes of conviction or acquittal crudely reductionist, and the judges ‘trembled’ at having to sentence. This paper contends that cinematographic depictions of victim-victimizers can sooth the criminal law’s anxieties by filling spaces ill-served by the criminal law.
January 29, 2020 | Permalink
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Tuesday, January 28, 2020
The Wire is a show about institutions, the people trapped inside of them, and a society made static by their inaction, indifference, and ineptitude. Whether the series was exploring the drug trade, police departments, city hall, unions, or public schools, the individual actors within those systems were depicted as having little control over either the institutions or their individual fates within them. As a result, the constituencies supposedly served by those institutions continually got the shaft.
To say that The Wire is about the tolls of unmitigated capitalism and inflexible bureaucracies is not to say, however, that the show is silent on, or indifferent to, the criminal justice system that encompasses its main characters. I became especially intrigued by an episode in the first season in which police and prosecutors rely on the testimony of Omar Little in a murder trial, despite doubts about Omar’s first-hand knowledge of the crime. This essay is a reflection on the depiction of law enforcement in The Wire, both generally and with respect to the single scene that first made me a Wire addict.
January 28, 2020 | Permalink
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The work is focused on a general analysis of criminal law principles in the Russian Federation. These principles are weighed against the Russian Constitution and the Russian Criminal Law. The relevance of the issue lies in the fundamental importance of criminal law principles for understanding the law branch as a whole. Today there are academic disputes about various principles. Constructions of the criminal law principles are pointed out as the principles of the representative of the continental legal system.
January 28, 2020 | Permalink
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The U.S. National Institute of Standards and Technology (NIST) asked 34 forensic scientists, latent print examiners, forensic laboratory directors, psychologists, statisticians, engineers, law professors, and other experts* to prepare a scientific review and offer recommendations regarding human factors in the forensic analysis of latent prints. The findings are presented in the following chapters, which are followed by a list of all recommendations and an extensive bibliography.
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January 28, 2020 | Permalink
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Monday, January 27, 2020
Author briefly explores possibilities of applying researches about psychogenetics including allelomorphic variations in modern penal law. Likely consequences of use behavioral and psychiatric genetic evidences in penal law and criminal procedure law are studied.
January 27, 2020 | Permalink
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Jonathan Crowe and Bri Lee have recently argued that the mistake of fact excuse, for which s 24 of the Criminal Code Act 1913 (Qld) provides, should be rendered inapplicable to rape and sexual assault proceedings in that State. In this article, I argue that this proposal is objectionable because, however progressive its promoters consider it to be, it is incompatible with human rights – and would probably breach the Human Rights Act 2019 (Qld). Moreover, the Queensland Law Reform Commission and the Queensland Parliament should reject an alternative proposal of Crowe and Lee’s, which seems to be aimed at achieving indirectly what their primary proposal would achieve directly. Even if Crowe and Lee’s research demonstrated that mistake of fact is causing injustice for rape and sexual assault complainants – and it does not – absolute liability for serious crime is indefensible.
January 27, 2020 | Permalink
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Sunday, January 26, 2020
are here. The usual disclaimers apply.
| Rank |
Paper |
Downloads |
| 1. |
Brooklyn Law School
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109 |
| 2. |
Seattle University School of Law
|
99 |
| 3. |
Georgetown University Law Center
|
68 |
| 4. |
Columbia University - Law School
|
68 |
| 5. |
University of Michigan Ross School of Business
|
48 |
| 6. |
Pace University School of Law
|
41 |
| 7. |
Arizona State University, Sandra Day O'Connor College of Law
Date Posted: 11 Dec 2019 [8th last week]
|
36 |
| 8. |
The Heritage Foundation
Date Posted: 05 Dec 2019 [7th last week]
|
34 |
| 9. |
University of Hawaii - William S. Richardson School of Law, Harvard Law School (Fair Punishment Project, a joint initiative of the Charles Hamilton Houston Institute & Criminal Justice Institute) and Kobe University - Graduate School of Business Administration
Date Posted: 13 Jan 2020 [new to top ten]
|
29 |
| 10. |
Willamette University College of Law
Date Posted: 17 Dec 2019 [new to top ten]
|
27 |
January 26, 2020 | Permalink
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Saturday, January 25, 2020
are here. The usual disclaimers apply.
| Rank |
Paper |
Downloads |
| 1. |
University of Richmond School of Law
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411 |
| 2. |
Washington University in St. Louis - School of Law and Wayne State University School of Law
Date Posted: 16 Jan 2020 [new to top ten]
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212 |
| 3. |
University of San Francisco - School of Law and Fordham University School of Law
|
116 |
| 4. |
Southern Methodist University - Dedman School of Law
Date Posted: 02 Dec 2019 [5th last week]
|
70 |
| 5. |
Marquette University - Law School and Texas A&M University School of Law
Date Posted: 22 Nov 2019 [6th last week]
|
63 |
| 6. |
Harvard Law School
Date Posted: 27 Nov 2019 [8th last week]
|
57 |
| 7. |
The University of Sydney Law School and University of New South Wales (UNSW) - Faculty of Law
|
57 |
| 8. |
Sheffield Hallam University
Date Posted: 28 Nov 2019 [9th last week]
|
51 |
| 9. |
New York Law School
Date Posted: 01 Jan 2020 [new to top ten]
|
43 |
| 10. |
Duke University School of Law
Date Posted: 23 Dec 2019 [new to top ten]
|
43 |
January 25, 2020 | Permalink
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Friday, January 24, 2020
From The New York Times. In part:
London’s police department said on Friday that it would begin using facial recognition to spot criminal suspects with video cameras as they walk the streets, adopting a level of surveillance that is rare outside China.
The decision is a major development in the use of a technology that has set off a worldwide debate about the balance between security and privacy. Police departments contend that the software gives them a way to catch criminals who may otherwise avoid detection. Critics say the technology is an invasion of privacy, has spotty accuracy and is being introduced without adequate public discussion.
January 24, 2020 | Permalink
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The American Founders believed all serious crimes should be tried by jury. The jury was, after all, “the heart and lungs . . . of our liberties,” intended to serve as the “circuitbreaker in the State’s machinery of justice.” Times change, of course, but few are happy that today plea bargaining is the system of criminal justice, with jury trials relegated to an almost inconsequential role. We propose to restore some measure of the Framers’ constitutional vision through a novel mechanism: a trial lottery. In short, a small percentage of cases that plead out should be randomly selected for jury trial, using the terms of the plea as an upper limit on punishment. This would have three benefits: counteracting asymmetries in plea bargaining; ‘auditing’ the law enforcement process, revealing information about how police investigate and how prosecutors charge; and revitalizing the role of jurors, lawyers, and judges in criminal adjudication. After theorizing these benefits, we close by offering a handful of proposals for implementation.
January 24, 2020 | Permalink
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Daniel Epps and
William Ortman (Washington University in St. Louis - School of Law and Wayne State University School of Law) have posted
The Defender General (University of Pennsylvania Law Review, Forthcoming) on SSRN. Here is the abstract:
The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients—even when they conflict with the interests of criminal defendants as a whole. The prosecution’s advantages likely distort the law on the margins.
If designed carefully, staffed with the right personnel, and given time to develop institutional credibility, a new Office of the Defender General could level the playing field, making the Court a more effective regulator of criminal justice.
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January 24, 2020 | Permalink
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Thursday, January 23, 2020
Andrew Guthrie Ferguson (American University Washington College of Law) has posted
Predictive Policing Theory (Chapter 24: The Cambridge Handbook of Policing in the United States (ed. Tamara Rice Lave & Eric J. Miller), Cambridge Univ. Press (2019)) on SSRN. Here is the abstract:
Predictive policing is changing law enforcement. New place-based predictive analytic technologies allow police to predict where and when a crime might occur. Data-driven insights have been operationalized into concrete decisions about police priorities and resource allocation. In the last few years, place-based predictive policing has spread quickly across the nation, offering police administrators the ability to identify higher crime locations, to restructure patrol routes, and to develop crime suppression strategies based on the new data.
This chapter suggests that the debate about technology is better thought about as a choice of policing theory. In other words, when purchasing a particular predictive technology, police should be doing more than simply choosing the most sophisticated predictive model; instead they must first make a decision about the type of policing response that makes sense in their community. Foundational questions about whether we want police officers to be agents of social control, civic problem-solvers, or community partners lie at the heart of any choice of which predictive technology might work best for any given jurisdiction.
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January 23, 2020 | Permalink
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This article discusses the insanity defense in the case of a parent who committed filicide. This article will begin by reviewing the history of the insanity defense, its characteristics and components via comparative law through the United States of America, specifically the types of tests used in the different states. It will then discuss the history of the insanity defense in Israel through a chronological examination of the developments in Israeli legislation, from 1899 to the present time.
In addition to reviewing relevant cases in Israel in which the insanity defense was claimed, this article will shed light on the gap between the public’s misconception that a parent who has committed filicide “must be insane” and the reality of fact and law disproving that notion by the scarcity in which the insanity defense is accepted in filicide cases.
January 23, 2020 | Permalink
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Amir Shachmurove (Harvard Law School) has posted Sovereign Speech in Troubled Times: Prosecutorial Statements as Extrajudicial Admissions (86 Tennessee Law Review 403 (2019)) on SSRN. Here is the abstract:
On its face, Federal Rule of Evidence 801(d)(2) is elegantly simple. Distinguishing between neither private persons nor public entities, it renders admissible out-of-court statements made by an agent “authorized to make a statement on the subject” and by an agent or employee “on a matter within the scope of... [its] relationship” to the party per subparagraph (C) and (D), respectively. More colloquially, Evidence Rule 801(d)(2)(C) permits the introduction of an authorized representative’s statements into a case’s evidentiary record, and Evidence Rule 801(d)(2)(D) does the same for statements uttered by certain agents and employees. History partly vindicated the former, while a substantial trend favored the latter, at their official release in 1975.
Yet, to this day, an intractable doctrinal battle has raged over whether a federal prosecutor’s statements, from the initiation of a criminal investigation through a trial’s conclusion, fall within either subdivision.
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January 23, 2020 | Permalink
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