CrimProf Blog

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Informed Jury Daniel Epps and William Ortman Washington University in St. Louis - School of Law and Wayne State University School of Law Date Posted: 28 Jul 2021	384
2.	Proximate Cause Untangled Mark Geistfeld New York University School of Law Date Posted: 28 Aug 2021	127
3.	Why De Minimis is a Defence: A Reply to Professor Coughlan Colton Fehr Simon Fraser University Date Posted: 04 Oct 2021	94
4.	The Transnational Cybercrime Extortion Landscape and the Pandemic: Changes in Ransomware Offender Tactics, Attack Scalability and the Organisation of Offending David S. Wall Centre for Criminal Justice Studies, School of Law, University of Leeds Date Posted: 31 Aug 2021	76
5.	Law of the Gun: Unrepresentative Cases and Distorted Doctrine Eric Ruben SMU Dedman School of Law Date Posted: 01 Sep 2021	75
6.	Expanding Compassion Beyond the COVID-19 Pandemic Katie Tinto and Jenny Roberts University of California, Irvine School of Law and American University - Washington College of Law Date Posted: 01 Sep 2021	63
7.	Achieving Social Equity in the Cannabis Industry Samuel DeWitt Ohio State University (OSU), Michael E. Moritz College of Law, Students Date Posted: 08 Jun 2021	62
8.	Past as Prologue: Intercept and Surveillance Rules Under Hong Kong's National Security Law Stuart Hargreaves The Chinese University of Hong Kong (CUHK) - Faculty of Law Date Posted: 31 Aug 2021	57
9.	Obstruction of Journalism Erin Carroll Georgetown University Law Center Date Posted: 13 Sep 2021 [new to top ten]	47
10.	In Defense of Felon-in-Possession Laws Drury D. Stevenson South Texas College of Law Date Posted: 02 Sep 2021 [new to top ten]	30

Next week's criminal law/procedure argument

Issue summary is from ScotusBlog, which also links to papers:

Wednesday

• New York State Rifle & Pistol Association Inc. v. Bruen: Whether the state of New York's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Informed Jury Daniel Epps and William Ortman Washington University in St. Louis - School of Law and Wayne State University School of Law Date Posted: 28 Jul 2021 [2nd last week]	384
2.	How to be a Better Plea Bargainer Cynthia Alkon and Andrea Kupfer Schneider Texas A&M University School of Law and Marquette University - Law School Date Posted: 04 Oct 2021 [new to top ten]	279
3.	The Broken Fourth Amendment Oath Laurent Sacharoff University of Arkansas School of Law Date Posted: 08 Jun 2021	250
4.	Congressional Surveillance Aaron Cooper Georgetown University Law Center Date Posted: 27 Aug 2021	161
5.	The Living Rules of Evidence G. Alexander Nunn University of Arkansas - School of Law Date Posted: 09 Aug 2021	158
6.	Implicit Bias and the Admissibility of Character Evidence Hillel J. Bavli Southern Methodist University - Dedman School of Law Date Posted: 17 Sep 2021	150
7.	The Color of Justice Alexis Hoag Brooklyn Law School Date Posted: 23 Sep 2021 [8th last week]	114
8.	Law, Fact, and Procedural Justice G. Alexander Nunn University of Arkansas - School of Law Date Posted: 12 Jul 2021 [9th last week]	107
9.	Bargained Justice: Plea Bargaining and the Psychology of False Pleas and False Testimony Lucian E. Dervan Belmont University School of Law Date Posted: 11 Jun 2021 [10th last week]	103
10.	Survived & Coerced: Epistemic Injustice in the Family Regulation System S. Lisa Washington University of Wisconsin Law School Date Posted: 01 Sep 2021 [new to top ten]	95

 

 

Seo on Originalism and Kansas v. Glover

Sarah Seo (Columbia Law School) has posted The Originalist Road Not Taken in Kansas v. Glover (American Constitution Society Supreme Court Review (2019-2020)) on SSRN. Here is the abstract:

 

In Kansas v. Glover, the Supreme Court held that it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the car, absent any information to the contrary. This essay argues that what makes Glover a hard case and an easy case is that the Court’s reasonable-suspicion jurisprudence under the Fourth Amendment, which originated with Terry v. Ohio, makes it nearly impossible to address the social-justice implications of technology-aided policing. It suggests that Justice Kagan’s concurrence and Justice Sotomayor’s dissent, both of which are rooted in doctrine, will prove ineffective in ameliorating the social issues. The essay concludes with the proposal that the Court overrule Terry based on originalist grounds, which would provide a more effective limit on the police’s use of technology.

Findley et al. on Plea Bargaining in the Shadow of a Retrial

Keith A. Findley, Camila Angulo Amaya, Gibson Hatch and John Smith (University of Wisconsin Law School, University of Wisconsin - Madison - Department of Political Science, affiliation not provided to SSRN and University of Wisconsin Law School) have posted Plea Bargaining in the Shadow of a Retrial: Bargaining Away Innocence (Univ. of Wisconsin Legal Studies Research Paper No. 1726, Wisconsin Law Review (Forthcoming)) on SSRN. Here is the abstract:

 

Critics of plea bargaining have long contended that it has an innocence problem - that the imbalanced and coercive nature of plea negotiations can induce even innocent defendants to plead guilty. While laboratory studies confirm that innocent individuals can indeed be induced to plead guilty, little real-world empirical evidence exists about the nature and extent of plea bargaining's innocence problem.

Utilizing original empirical data, this article begins to fill that void. Looking at cases in a post-conviction context, we study the extent to which prosecutors in real cases utilize their plea-bargaining power to preserve convictions, even when the convictions appear to be deeply flawed and the chances the defendants are innocent are high. We also examine the degree to which innocence-claiming defendants succumb to those pressures and accept the deals. To address these questions, we collected a wide-range of data from U.S.-based member organizations of the Innocence Network about the cases they litigated from 2010-2020.

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Duffy & Hynes on Asymmetric Subsidies and the Bail Crisis

John F. Duffy and Richard M. Hynes (University of Virginia School of Law and University of Virginia School of Law) have posted Asymmetric Subsidies and the Bail Crisis (88 U. Chi. L. Rev. 1285 (2021)) on SSRN. Here is the abstract:

 

When individuals are arrested or indicted for a crime, governments have legitimate interests in assuring that those individuals show up for future legal proceedings and also do not cause more social harm in the meanwhile. To serve those legitimate interests, governments may restrain the personal liberty of those presumptively innocent individuals—traditionally accomplished either by incarceration or by release subject to certain sureties and conditions. The choice, in short, is between jail and bail.

Currently, governments skew that choice by subsidizing the costs of jail but not bail. The result—wholly predictable given the size and asymmetric nature of the subsidy—is that the United States maintains an inefficiently large jail population that both costs taxpayers too much and excessively limits the liberty of too many. Prior commentators and reformers have correctly identified the overuse of pretrial detention in jails as a major public policy crisis and have urged substantial reforms to current bail processes up to and including the abolition of state constitutional rights to bail (as one state has recently done). We believe that the hostility toward bail overlooks the root cause of the problem, which is the asymmetric subsidization of jail over bail. We propose a balanced subsidization system that can preserve the beneficial aspects of a traditional bail surety system while (i) reducing unnecessary and inefficient restraints on individual liberty, (ii) addressing the distributional inequities of current practices, and (iii) saving taxpayers billions of dollars per year.

Olaborede & Meintjes-van der Walt on Convictions Based on Forensic Evidence

Adebola Olaborede and Lirieka Meintjes-van der Walt (University of Fort Hare and University of Fort Hare) have posted The Dangers of Convictions Based on a Single Piece of Forensic Evidence (PER / PELJ 2020(23)) on SSRN. Here is the abstract:

 

The overall goal of the criminal justice system is to ensure that perpetrators of crimes are duly punished and that victims of crimes are duly exonerated. As part of the effort to achieve this goal, the forensic disciplines have become very important in criminal investigations and prosecutions in identifying the guilty and in exonerating the innocent. There is a growing number of cases where people have been convicted based on a single piece of forensic evidence. However, some of the convictions have been found to be wrong, largely, due to the lack of adequate scientific validation of the forensic science methods. Some of these methods include latent fingerprint analysis, bite mark analysis, microscopic hair analysis and firearms identification. This article critically examines the application of forensic evidence in criminal prosecutions and highlights the dangers of convictions based on a single piece of forensic evidence. The findings of recent reports, such as, the National Academy of Sciences (NAS) 2009 Report and President's Council of Advisors on Science and Technology (PCAST) 2016 Report, confirm the critical role and broad scope of these forensic pattern-matching methods. The reports also indicate flaws that affect the accuracy of these methods, such as, inadequate scientific validation, coincidental results (erroneous match), human, laboratory and interpretive errors etc. Therefore, this article argues that the court should follow a cautionary approach when relying on a single piece of forensic evidence and that strong corroboration with other forms of evidence linking the accused to the crime should be required.

Chen on China's Trial-in-Absentia System

Liang Chen (Peking University, Peking University School of Transnational Law) has posted Pursuing Corrupt Fugitives: On China’s Trial-in-Absentia System (Peking University STL Law Review (Blog) 2021) on SSRN. Here is the abstract:

 

Along with the nationwide anti-corruption campaign in China, the Chinese government created a novel trial-in-absentia system to deal with corrupt fugitives. This article reviews the policy background of the system’s birth and how the system works in theory. Then, by reviewing prior approaches to deal with corrupt fugitives, this article argues that the trial-in-absentia system can solve intrinsic defects of prior approaches and can bring more benefits to the Chinese government. Finally, by comparing the Chinese trial-in-absentia system with international human rights law on the defendant’s right to be present at trial, this article argues that the Chinese trial-in-absentia system against corrupt fugitives complies with international human rights law in theory.

Mutsavi & Meintjes-van der Walt on Firearm ID Evidence

Tanyarara Mutsavi and Lirieka Meintjes-van der Walt (University of Fort Hare and University of Fort Hare) have posted Ensuring the Reliability of Fire-Arm Identification Evidence (PER / PELJ 2020(23)) on SSRN. Here is the abstract:

 

Notwithstanding the acceptance of firearm identification by courts, the scientific community has been reluctant to recognise firearm identification as a reliable method of conclusively establishing a connection between a particular bullet and a particular gun. The National Institute of Justice (NIJ) in the United States (US) has categorised firearm identification as a discipline under forensic science, and forensic science has been described as a "fractured and burdened discipline". In addition, in 2009 the National Academy of Sciences (NAS) concluded that forensic science is broken. With regard to firearm identification, the NAS Report emphasised the need for sufficient studies to be done because this report regarded this type of evidence as unreliable and lacking repeatability. The President's Council of Advisors on Science and Technology (PCAST) Report, released in September 2016, came to a conclusion similar to that of the 2009 NAS Report with regard to forensic science evidence. With regard to firearm identification, the report asserted that firearm identification evidence still "falls short of the scientific criteria for foundational validity".

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Broughton on Pre-Trial Publicity

David Broughton has posted The South African Prosecutor in the Face of Adverse Pre-Trial Publicity (Broughton DWM "The South African Prosecutor in the Face of Adverse Pre-Trial Publicity" PER / PELJ 2020(23)) on SSRN. Here is the abstract:

Pre-trial publicity regarding a pending criminal case, which publicity may be in the form of media coverage of the case or a prior decision given in parallel judicial proceedings arising from substantially the same facts as the criminal matter, may be adverse to an accused. Such media publicity or findings contained in the parallel judicial decision may implicate the accused in the commission of the crime on which he or she is to stand trial. The publicity may, for example, suggest that the accused is "guilty" of the crime charged, or that the accused is of bad character having had the propensity to commit the crime. Conversely, pre-trial publicity may portray the accused as innocent of any criminal wrongdoing. In other words, pre-trial publicity may prejudge the issues that are to be adjudicated on at trial. A central question that may arise in these instances is whether there is a real and substantial risk that such publicity would materially affect or prejudice the impartial adjudication of the criminal case; that is to say, whether the publicity is likely to have a biasing effect on the trial court in the adjudication process or the outcome of the trial, thereby imperilling the constitutional right to a fair trial.

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Gosney on Prescription Drug Defense

Steven Gosney has posted Florida's Prove Yourself Innocent Absurdity: Florida's Prescription Drug Affirmative Defense (8 Stetson J. Advoc. & L. 97 (2021)) on SSRN. Here is the abstract:

Very little guidance is available to the practitioner for navigating Florida's Jury instruction 3.6(n) dealing with the affirmative defense of prescription drug. This article attempts to remedy that deficiency by proposing a useful framework by which trial courts and criminal law practitioners can understand and apply the seemingly contradictory instructions contained in 3.6(n).

Smith on Cellphones and the Tracking Device Statute

Stephen W. Smith (Stanford Law School Center for Internet and Society) has posted The Cellphone Donut Hole in the Tracking Device Statute (2021 Federal Courts Law Review (Forthcoming)) on SSRN. Here is the abstract:

 

Legal fictions continue to sprout in American jurisprudence. One of the most recent comes from the First Circuit Court of Appeals, which held in United States v. Ackies that a cellphone cannot be a tracking device as a matter of law. While most legal fictions are supported by some logical rationale, this startling contradiction of everyday experience demands a compelling justification. Yet, as this article hopes to show, there is none.

Using a statutory interpretation tool that Justice Gorsuch has caustically dubbed the “donut hole” canon, the First Circuit finds a tacit exclusion for cellphones in the Tracking Device Statute (TDS), which regulates this form of surveillance. The statute defines “tracking device” broadly and without exclusions—“a mechanical or electronic device which permits the tracking of movement of a person or object.” At the same time the court unduly restricts the proper scope of the TDS, it overextends the reach of the more permissive Stored Communications Act (SCA), a statute never intended to govern ongoing surveillance like real-time cellphone tracking.

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Lostal on Animal Victims

Marina Lostal (Essex University, School of Law) has posted De-objectifying Animals: Could they Qualify as Victims before the International Criminal Court? (Journal of International Criminal Justice ,vol 19 (2021): 1-28) on SSRN. Here is the abstract:

 

The legal framework of the International Criminal Court does not contain any provision concerning animals. This stands in contrast with the frequency with which they appear in both trial and reparations proceedings. The silence of the legal framework is problematic insofar as the ‘animal turn movement’, which questions the classical understanding and treatment of animals as objects, has permeated into both the international and domestic legal spheres. This article wishes to initiate a discussion on the treatment of animals before the Court by examining whether they could qualify as victims under Rule 85(a) of the Rules of Procedure and Evidence. While the short answer to this question is an unequivocal ‘no’, the conclusion reached is not the purpose of the analysis. The analysis shows that animals cannot qualify as ‘victims’ because they are not human beings. Yet, they comfortably meet the other two criteria, namely, (a) suffering harm, which (b) results from the commission of crimes within the Court’s jurisdiction. Thus, this article argues that — at least — granting animals the same treatment as human beings is no more objectionable as a matter of legal principle than granting them the status of ‘things’. This calls for a prompt discussion of the regulation of animals within the Court.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Informed Jury Daniel Epps and William Ortman Washington University in St. Louis - School of Law and Wayne State University School of Law Date Posted: 28 Jul 2021	375
2.	Proximate Cause Untangled Mark Geistfeld New York University School of Law Date Posted: 28 Aug 2021 [3rd last week]	124
3.	Why De Minimis is a Defence: A Reply to Professor Coughlan Colton Fehr Simon Fraser University Date Posted: 04 Oct 2021 [6th last week]	79
4.	The Transnational Cybercrime Extortion Landscape and the Pandemic: Changes in Ransomware Offender Tactics, Attack Scalability and the Organisation of Offending David S. Wall Centre for Criminal Justice Studies, School of Law, University of Leeds Date Posted: 31 Aug 2021	73
5.	Law of the Gun: Unrepresentative Cases and Distorted Doctrine Eric Ruben SMU Dedman School of Law Date Posted: 01 Sep 2021	70
6.	Expanding Compassion Beyond the COVID-19 Pandemic Katie Tinto and Jenny Roberts University of California, Irvine School of Law and American University - Washington College of Law Date Posted: 01 Sep 2021 [8th last week]	62
7.	Achieving Social Equity in the Cannabis Industry Samuel DeWitt Ohio State University (OSU), Michael E. Moritz College of Law, Students Date Posted: 08 Jun 2021 [9th last week]	58
8.	Past as Prologue: Intercept and Surveillance Rules Under Hong Kong's National Security Law Stuart Hargreaves The Chinese University of Hong Kong (CUHK) - Faculty of Law Date Posted: 31 Aug 2021 [10th last week]	56
9.	The Overlooked Victim Right: According Victim-Survivors a Right of Access to Restorative Justice Lynn S. Branham Saint Louis University - School of Law Date Posted: 27 Aug 2021 [new to top ten]	52
10.	In Defense of Felon-in-Possession Laws Drury D. Stevenson South Texas College of Law Date Posted: 02 Sep 2021 [new to top ten]	28

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Inside the Black Box of Prosecutor Discretion Megan S. Wright, Shima Baradaran Baughman and Christopher T. Robertson The Pennsylvania State University (University Park) – Penn State Law, University of Utah - S.J. Quinney College of Law and Boston University Date Posted: 28 Jul 2021	408
2.	The Informed Jury Daniel Epps and William Ortman Washington University in St. Louis - School of Law and Wayne State University School of Law Date Posted: 28 Jul 2021 [new to top ten]	375
3.	The Broken Fourth Amendment Oath Laurent Sacharoff University of Arkansas School of Law Date Posted: 08 Jun 2021 [new to top ten]	233
4.	Congressional Surveillance Aaron Cooper Georgetown University Law Center Date Posted: 27 Aug 2021 [3rd last week]	156
5.	The Living Rules of Evidence G. Alexander Nunn University of Arkansas - School of Law Date Posted: 09 Aug 2021 [4th last week]	152
6.	Implicit Bias and the Admissibility of Character Evidence Hillel J. Bavli Southern Methodist University - Dedman School of Law Date Posted: 17 Sep 2021 [5th last week]	147
7.	The Role of Emotion in Constitutional Theory J. Joel Alicea Catholic University of America — Columbus School of Law Date Posted: 23 Aug 2021 [6th last week]	122
8.	The Color of Justice Alexis Hoag Brooklyn Law School Date Posted: 23 Sep 2021	108
9.	Law, Fact, and Procedural Justice G. Alexander Nunn University of Arkansas - School of Law Date Posted: 12 Jul 2021 [7th last week]	106
10.	Bargained Justice: Plea Bargaining and the Psychology of False Pleas and False Testimony Lucian E. Dervan Belmont University School of Law Date Posted: 11 Jun 2021 [new to top ten]	98

Iowa seeks CrimProf for spring 2022 semester

Full announcement is here. Some details following the jump.

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Diamantis & Thomas on Corporate Criminal Law

Mihailis Diamantis and W. Robert (Will) Thomas (University of Iowa - College of Law and University of Michigan Ross School of Business) have posted But We Haven't Got Corporate Criminal Law! (43 J. Corp. L. (forthcoming 2022)) on SSRN. Here is the abstract:

 

Should the United States retain corporate criminal law? For more than a century, pearl-clutching abolitionists have decried the conceptual puzzles and supposed injustices of corporate criminal liability. Meanwhile, enthusiastic proponents of corporate criminal law have celebrated a system that they believe can deliver justice for victims and effective punishment to corporate malefactors.

The abolitionists won long ago… through craftiness rather than force of reason. By arguing that the United States should get rid of corporate criminal law, abolitionists have staged a debate that presumes corporate criminal law in fact exists. It does not, and it never has. The greatest trick the abolitionist ever pulled was convincing everyone to think otherwise and then duping their opponents into arguing for the status quo.

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Liao on Compulsory Military Service and Crime Rates

Chen-Hsuan Liao (The University of Tokyo - University of Tokyo, Graduate School of Public Policy) has posted Does compulsory military service influence crime rates? Evidence from Taiwan on SSRN. Here is the abstract:

 

This study investigates the effects of compulsory military service on adolescent crime. I exploit the reduction in the duration of Taiwan’s compulsory military service from one year to four months, which started in 2013. Using a triple difference approach, I find that the shorter service duration has led to a 36% increase in the number of adolescent male suspects and a 30% increase in crime rates. In particular, by enacting a 67% reduction in the time adolescents are incapacitated by military service, the reform has allowed adolescent males to engage in more criminal activities. My findings indicate that military service helps reduce crime; specifically, they suggest that the incapacitation effect of compulsory military service rather than the positive values (discipline, obedience, and collaboration) cultivated in a military camp has the most substantial impact on crime rates.

Wechsler on Victims as Instruments

Rachel J. Wechsler (The Peter L. Zimroth Center on the Administration of Criminal Law, New York University School of Law) has posted Victims as Instruments (Washington Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Crime victims are often instrumentalized within the criminal legal process in furtherance of state prosecutorial interests. This is a particularly salient issue concerning victims of gender-based violence (GBV) because victim testimony is typically considered essential for successful prosecution of these types of crimes, especially since the Supreme Court’s 2004 Crawford v. Washington decision requiring declarants to be available for cross-examination on “testimonial” hearsay evidence. Consequently, criminal legal actors often employ highly coercive practices to secure GBV victims’ participation in the criminal legal process as evidentiary tools, including arresting and incarcerating victims through material witness warrants and contempt power, criminally charging and threatening charges against them, and conditioning key assistance measures upon their full cooperation with law enforcement. This Article critically examines paternalistic and utilitarian justifications for these practices and exposes their misalignment with the core principles of each framework. It then examines the state’s approach to GBV victims under three interrelated conceptual frameworks which have thus far been overlooked in this context: deontological ethics, dehumanization constructs, and liberal legal principles. This novel critique argues that the practices at issue are incompatible with foundational principles concerning the dignified treatment of individuals within the liberal legal order. It also contends that the targeted use of these coercive mechanisms operates as punishment for victims who fail to conform to “ideal” and legitimate GBV victim stereotypes, which require full cooperation with criminal legal authorities.

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Schauer on Statistical Evidence and the Problem of Specification

Frederick Schauer (University of Virginia School of Law) has posted Statistical Evidence and the Problem of Specification (Episteme, vol. 19 (forthcoming 2022)) on SSRN. Here is the abstract:

 

Philosophical debates over statistical evidence have long been framed and dominated by L. Jonathan Cohen’s Paradox of the Gatecrasher and a related hypothetical example commonly called Prison Yard. These examples, however, raise an issue not discussed in the large and growing literature on statistical evidence -- the question of what statistical evidence is supposed to be evidence of. In actual practice, the legal system does not start with a defendant and then attempt to determine if that defendant has committed some unspecified or under-specified act, as these examples appear to suppose. Rather, both criminal and civil litigation start with a sufficiently specified act and then attempt to determine if the defendant has committed it. And when we start with a more fully specified act, the statistics look very different, and these prominent examples no longer present the paradox they are claimed to support. Examining the issue of specification, however, does more than simply undercut the prominent examples in a long and extensive literature. The examination also raises normative issues challenging the legal system’s traditional reluctance to base liability on the conjunction of probabilities.