CrimProf Blog

Barnum on FBI v. Apple

Jeffery Barnum has posted Fictional Brief for the United States in United States v. Pear on SSRN. Here is the abstract:

In June, 2016, the Newseum hosted a mock Supreme Court hearing on whether the United States could compel a technology company to bypass its own security safeguards built into their devices. The fact pattern mirrored the real-world dispute between the FBI and Apple over access to the iPhone used by the San Bernadino shooter.

This brief was written for the "government." However, any views or ideas are mine alone and do not necessarily express any position of the United States Government.

The Newseum is a museum in Washington, D.C. dedicated to freedom of the press and First Amendment issues.

Hansen on Virtual Indecent Assault

Joshua Hansen (Victoria University of Wellington, Faculty of Law, Student/Alumni) has posted Virtual Indecent Assault: Time for the Criminal Law to Enter the Realm of Virtual Reality ((2019) 50 VUWLR 57) on SSRN. Here is the abstract:

 

Virtual reality has the potential to provide a new medium of communication that will allow community, business and recreation to extend into the virtual realm. As with any emerging technology, the law must decide how to respond. When technology throws into question what the law considers to be real, we are starting from a relatively clean slate. The purpose of this article is to consider the extent to which the criminal law must engage with virtual reality. This issue is approached through the case study of virtual indecent assault. After considering the offence of indecent assault in s 135 of the Crimes Act 1961 and the effects of virtual actions, this article argues that the potential for harm justifies the intervention of the criminal law into virtual worlds. In light of this conclusion, this article also aims to outline a set of principles that can shape the criminal law's response. A principled approach can establish a stable foundation from which to tackle the diverse and often unknown challenges posed by an ever changing technology. These principles are applied in the evaluation of the different methods of criminalisation that would be available in the context of virtual indecent assault.

"Scraping A Public Website Doesn't Violate the CFAA, Ninth Circuit (Mostly) Holds"

Orin Kerr has this post at The Volokh Conspiracy. In part:

Under the new decision, violating the CFAA requires "circumvent[ing] a computer's generally applicable rules regarding access permissions, such as username and password requirements," that thus "demarcate[]" the information "as private using such an authorization system."  If the data is available to the general public, the court says, it's not an unauthorized access to view it—even when the computer owner has sent a cease-and-desist letter to the visitor telling them not to visit the website.

This is a major case that will be of interest to a lot of people and a lot of companies.  But it's also pretty complicated and easy to misunderstand. 

"UK court allows police use of facial recognition technology"

From Jurist. In part:

The central issue in this case was the South Wales Police’s (SWP) trial use of facial recognition technology, specifically a project known as AFR Locate. AFR Locate works by taking digital images of the faces of members of the public, processing them “to extract facial biometric information” and then comparing them with “facial biometric information of persons on a watchlist.” If a match is made, “the two images are reviewed by an AFR operator … to establish whether he believes that a match has in fact been made.” If the match is also made by the AFR operator (who is also a police officer), other police officers are then informed and may choose to intervene. However, if no match is made, then the images and facial biometrics that were processed are deleted automatically.

Okidegbe on Rap Lyric Evidence

Ngozi Okidegbe (Benjamin N. Cardozo School of Law) has posted A ‘Bad Rap’: R. v. Skeete and the Admissibility of Rap Lyric Evidence (66 Crim. L.Q. 294 (2018)) on SSRN. Here is the abstract:

 

This paper explores the evidentiary treatment of violent and prejudicial defendant-authored rap lyrics in Canadian criminal trials. It argues that the current evidentiary threshold jeopardizes trial fairness by allowing the Crown to adduce highly prejudicial rap lyric evidence at trial. It also problematizes the judicial reliance on corroborative evidence, which does not establish the truthfulness of the lyrics tendered, to admit these violent rap lyrics at trial. It argues that the reliance on such corroborative evidence results in a misapprehension of the lyrics’ evidentiary value and ultimately in the admission of defendant-authored rap lyric evidence of low probative value at trial. This result is particularly concerning in the case of young black male defendants, since the introduction of their lyrics at trial can prime a jury’s unconscious anti-black bias and therefore serve to increase the distortive effect of this type of evidence on the fairness and integrity of criminal proceedings. It concludes by advocating for a rap specific approach to the admissibility of this evidence.

Douek on Violent Media Postings

Evelyn Douek has posted Australia's 'Abhorrent Violent Material' Law: Shouting 'Nerd Harder' and Drowning Out Speech (Australian Law Journal, (2020), Forthcoming) on SSRN. Here is the abstract:

In the wake of the Christchurch Massacre, the Australian government passed the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (“the AVM Act”) with essentially no debate or consultation. Creating new criminal offences for social media and hosting companies that fail to move certain violent content “expeditiously”, the legislation treats the matter of the viral spread of violent content online as a simple problem that could be solved by technology companies if they were only sufficiently motivated. But the problem is not simple, and the AVM Act instead creates incentives for tech companies to over-censor in order to avoid the threat of liability while failing to address the many deficits that currently exist in online content moderation and associated regulation.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	A Call to Prosecute Drug Company Fraud As Organized Crime Eugene McCarthy University of Illinois, Springfield Date Posted: 17 Jul 2019 [new to top ten]	181
2.	How to Fix Legal Scholarmush Adam J. Kolber Brooklyn Law School Date Posted: 16 Jul 2019 [1st previously]	134
3.	Public Perceptions of Plea Bargaining Thea Johnson University of Maine School of Law Date Posted: 29 Jul 2019 [2nd previously]	85
4.	Artificial Intelligence and Crime Roderic Broadhurst, Donald Maxim, Paige Brown, Harshit Trivedi and Joy Wang Australian National University (ANU), (ANU) - Cybercrime Observatory, ANU Cybercrime Observatory, ANU Cybercrime Observatory and Australian National University (ANU) Date Posted: 28 Jun 2019 [5th previously]	82
5.	Against the Received Wisdom: Why Should the Criminal Justice System Give Kids a Break? Stephen Morse University of Pennsylvania Law School Date Posted: 09 Jul 2019 [7th previously]	60
6.	Statutory Federalism and Criminal Law Joshua Divine U.S. Senate Date Posted: 10 Jul 2019 [8th previously]	57
7.	After the Crime: Rewarding Offenders’ Positive Post-Offense Conduct Paul H. Robinson and Muhammad Sarahne University of Pennsylvania Law School and University of Pennsylvania Date Posted: 08 Aug 2019 [10th previously]	56
8.	Torture and Respect Jacob Bronsther Harvard Law School Date Posted: 12 Jul 2019 [9th previously]	54
9.	Lawyers, Guns, and Mental Illness Susan McMahon Georgetown University Law Center Date Posted: 09 Aug 2019 [new to top ten]	54
10.	The Extended Corporate Mind: When Corporations Use AI to Break the Law Mihailis Diamantis University of Iowa - College of Law Date Posted: 19 Jul 2019 [new to top ten]	53

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Measuring Algorithmic Fairness Deborah Hellman University of Virginia School of Law Date Posted: 16 Jul 2019	338
2.	Confirmation Bias and Other Systemic Causes of Wrongful Convictions: A Sentinel Events Perspective Kim Rossmo and Joycelyn Pollock Texas State University and Texas State University Date Posted: 04 Jul 2019	291
3.	Evidence in the Age of Privacy: Access to Data in the Criminal Justice System Rebecca Wexler University of California, Berkeley, School of Law Date Posted: 06 Aug 2019	217
4.	Some Doubts About 'Democratizing' Criminal Justice John Rappaport University of Chicago - Law School Date Posted: 11 Jul 2019	150
5.	Public Perceptions of Plea Bargaining Thea Johnson University of Maine School of Law Date Posted: 29 Jul 2019	85
6.	The Emerging Principles of Fourth Amendment Privacy Matthew Tokson University of Utah - S.J. Quinney College of Law Date Posted: 25 Jul 2019 [8th previously]	79
7.	Federal Criminal Risk Assessment Brandon L. Garrett Duke University School of Law Date Posted: 24 Jul 2019 [new to top ten]	73
8.	Restorative Justice and Youth Offenders in Nebraska Kristen Blankley and Alisha Caldwell Jimenez University of Nebraska Lincoln and Psychology and Law Program Date Posted: 28 Jun 2019 [7th previously]	72
9.	'Deceived Me into Thinking/I Had Something to Protect': A Therapeutic Jurisprudence Analysis of When Multiple Experts Are Necessary in Cases in which Fact-Finders Rely on Heuristic Reasoning and 'Ordinary Common Sense' Michael L. Perlin New York Law School Date Posted: 27 Jun 2019 [10th previously]	65
10.	Charging As Sentencing Donald A. Dripps University of San Diego School of Law Date Posted: 03 Aug 2019 [new to top ten]	53

O'Hear & Wheelock on Violent Crime and Punitiveness

Michael M. O'Hear and Darren Wheelock (Marquette University - Law School and Marquette University Department of Social and Cultural Sciences) have posted Violent Crime and Punitiveness: An Empirical Study of Public Opinion (Marquette Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Evidence suggests that the public favors tough punishment for individuals who have been convicted of violent crimes, but why? In order to better understand the factors that contribute to punitive attitudes toward violent crime, or “V-punitiveness,” we analyze data from a recent survey of Wisconsin voters as a part of the Marquette Law School Poll. In sum, respondents generally supported prison terms for individuals convicted of violent crime, but this support was not unwavering and unconditional. While analysis of these data identified several variables that correspond with higher levels of V-punitiveness, neither fear of violent crime nor personal experiences were among them. Instead, V-punitiveness seems more closely tied to broader sets of social beliefs regarding individual responsibility, traditional values, and the like. Our results suggest that tough responses to violent crime may be supported more for expressive than instrumental reasons. Thus, efforts to change public policy in this area may need to contend with expressive considerations. If reformers wish to change minds about legal responses to violent crime, instrumental arguments based simply on “what works” in reducing violent recidivism may come up short.

O'Hear on Early Release and Violent Crimes

Michael M. O'Hear (Marquette University - Law School) has posted Early Release for Prisoners Convicted of Violent Crimes: Can Anyone Escape the Incapacitation-Retribution Catch-22? (Connecticut Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Two decades of criminal-justice reform in the United States have achieved only a modest reduction in the nation’s historically high imprisonment rate. Returning to the much lower imprisonment rate of a generation ago will almost certainly require shorter prison terms for individuals who have been convicted of violent crimes. Such a change, however, would draw at least two important objections: (1) people who have been convicted of violent crimes are an especially dangerous offender group who ought to be incapacitated behind bars for as long as possible, and (2) violent crimes are so serious that long prison terms are required as a matter of justice. In order to evaluate the strength of these claims, it is necessary to develop a more nuanced understanding of who is serving time for violent offenses and what exactly they have done.

In the hope of advancing this understanding, this article undertakes a unique empirical analysis of the nearly 14,000 violence-convicted individuals who are currently in prison in one state, Wisconsin.

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Mathur on Live Tweeting and Fair Trial

Astha Mathur (Symboisis Law School, Students) has posted Criminal Trial Abuzz @ Twitter: A Study on the Impact of Live Tweeting of Court Proceedings on Fair Trial Rights (02 Nirma University Law Journal: Volume-6, Issue-2, December-2018) on SSRN. Here is the abstract:

 

The accused has a right to fair trial under Article 21. This right includes a right to be considered as innocent until proven guilty. This is usually hampered by open courts which permit the media to cover trials. The same is subject to checks and balances under the Contempt of Courts Act, Article19 (2) of the Constitution of India, and the Code of Criminal Procedure. However it is possible to protect the rights of both the media and the parties by adopting proactive regulations as was done during proceedings in the Nirbhaya rape case. The Courts in the past have adopted a negative view of the right of the media to report court proceedings and enjoy wide discretions, but are silent on the rights of media on blogging and tweeting. Since advocates are permitted to bring phones inside the courtrooms, tweeting of court proceedings is a reality in India but free of any regulations.

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West & Forcese on Lawful Access to Encrypted Communications

Leah West and Craig Forcese (Carleton University - Norman Paterson School of International Affairs and University of Ottawa - Common Law Section) have posted Twisted Into Knots: Canada’s Challenges in Lawful Access to Encrypted Communications on SSRN. Here is the abstract:

 

In 2016, the Apple vs FBI case animated the “going dark” (communications encryption) debate in the United States. The Court battle between the tech giant and the most powerful law enforcement agency in the world stemmed from a mass shooting in December 2015, that left 14 people dead. Meanwhile, as American agents worked to unlock the shooter’s phone, prosecutors in Canada were seeking to convict seven men linked to the Montreal mafia for the 2011 abduction and murder of Sal "the Ironworker" Montagna, a member of New York’s Bonanno crime family. The evidence of the men’s conspiracy consisted almost entirely of intercepted emails, chats, and encrypted BlackBerry Pin to Pin messages. 

Publicly divulging the key would effectively render every BlackBerry user vulnerable to interception and endanger ongoing police investigations across the country, if not the world. Predictably, the Crown dropped the murder charges and the accused plead guilty to the significantly lesser offence of conspiracy to commit murder.

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Prestidge on Private Prosecutions in New Zealand

Anna Prestidge (Victoria University of Wellington) has posted Private Prosecutions in New Zealand - A Public Concern? ((2019) 50 VUWLR 107) on SSRN. Here is the abstract:

 

This article evaluates whether private prosecutions remain a safe and useful mechanism in the modern New Zealand criminal justice system. Private prosecutions are an important constitutional safeguard against state inertia, incompetence and bias and recent legislative reforms have strengthened the judiciary's ability to ensure this mechanism is not misused. Despite this, concerns remain. This article provides an overview of private prosecutions and justification for their continued existence, outlines the current procedure for those prosecutions and explores remaining concerns with this mechanism. Ultimately, while the status quo of private prosecutions remains adequate, a greater alignment of the theoretical and practical purposes of private prosecutions would be beneficial. Further normalisation and commercialisation of private prosecutions is undesirable and the effectiveness of these prosecutions as a "safeguard" is questionable given the considerable financial and investigative burdens faced by applicants.

Factor & Gur-Arye on Sentencing Disparities in Omission Cases

Roni Factor and Miriam Gur-Arye (University of Haifa and Hebrew University of Jerusalem - Faculty of Law) have posted Social Solidarity and Sentencing Disparities Between Ethnic Groups: The Case of Hit-and-Run Traffic Offenses (Journal of Empirical Legal Studies, Forthcoming) on SSRN. Here is the abstract:

 

Studies of sentencing disparities show that in sentencing for cross-race or cross-ethnic violent offenses, minority defendants are likely to be sentenced to harsher punishments when the victim belongs to the majority group. Our study examines whether the same pattern of sentencing discrepancies is to be found with regard to offenses of omission, the prohibition of which imposes a legal duty to come to the aid of a victim; offenses which are based on social solidarity. The dataset includes all cases in which defendants were convicted of hit-and-run traffic offenses in Israel from 2001 to 2013. The surprising results show that hit-and-run drivers who belong to either the majority or minority ethnic group are likely to be sentenced to more severe punishments when the victim belongs to the same ethnic group than when the victim belongs to a different ethnic group.

Morgan on Liability for Sexually Transmitted Diseases

James Morgan (Adelaide Law School, The University of Adelaide) has posted Offences Against the Person and Sexually Transmitted Diseases: Aubrey v the Queen (2017) 260 CLR 305 (Adelaide Law Review, Vol. 39, No. 1, 2018) on SSRN. Here is the abstract:

 

Section 35 of the Crimes Act 1900 (NSW) provides for a criminal offence of grievous bodily harm. Prior to legislative amendment in 2007, this provision did not expressly extend criminal liability to transmission of disease. In the case of Aubrey v The Queen, it fell to the High Court of Australia to interpret this historical version of s 35. In doing so, the High Court departed from the English authority of R v Clarence3 — interpreting that s 35, as it stood in 2004, did not require immediate physical injury, and extends to transmission of disease.

Stanford on Public Spaces Protection Orders

Ben Stanford (Coventry University) has posted Power to the People? Public Spaces Protection Orders, Hybrid Law and Human Rights on SSRN. Here is the abstract:

 

This article examines the human rights implications of Public Spaces Protection Orders (PSPOs), which are a specific and unique example of a type of power commonly referred to as a ‘civil preventive order’ (CPO). PSPOs deal with a particular problem in a particular area that is ‘detrimental to the local community’s quality of life, by imposing conditions on the use of that area’. These mechanisms differ from other CPOs, which are all imposed under civil law procedures but carry criminal sanctions for any breach, in several fundamental ways. As such, this article argues that PSPOs demonstrate, simultaneously, the evolution and devolution of the ‘preventive state’, whilst the mechanisms also challenge the nature and very purpose of public spaces. On the one hand, PSPOs signify evolution by departing from the established practices of other CPOs, but on the other hand, PSPOs also demonstrate devolution by conferring significant discretion upon local authorities when imposing them. Despite empowering local communities, PSPOs represent a potentially dangerous politicisation of hybrid law-making, with ramifications for human rights in public spaces, including those rights pertaining to political participation.

Fish on Translating Crimes

Eric S. Fish has posted Translating Crimes on SSRN. Here is the abstract:

Criminal history is all-important in the criminal and immigration systems. A person’s past convictions dictate whether they will face new criminal charges, make bond, suffer a lengthy sentence, be targeted for immigration enforcement, lose or keep their immigration status, and face or avoid deportation, among many other consequences. Yet despite the vital role that criminal history plays, judges, prosecutors, and other government lawyers know surprisingly little about the past crimes of the people they process. Factually rich accounts of a person’s prior convictions are rarely available, and the system instead relies on rap sheets that record minimal facts - the charge, the date of conviction, and the sentence imposed. Because of this information scarcity, the criminal and immigration systems use criminal history heuristics when determining the consequences of prior convictions. Such heuristics include the number of past convictions, the types of crime charged, and the sentences imposed. These heuristics are inputted into mechanical formulas that translate them into often-severe consequences like deportations and mandatory minimum sentences. This way of using criminal history creates a number of serious problems in our system. It causes irrational and unjust results, renders the system arbitrary to the people being processed, exacerbates racial disparities, and makes access to a competent lawyer vital. This Article diagnoses these problems and proposes a number of reforms, including ending the convention of “time served” sentencing and rewriting state criminal laws to limit their immigration consequences.

Maggen on Reluctant Sex

Daniel Maggen has posted The Problem of Reluctant Sex on SSRN. Here is the abstract:

Reluctant sex, in which at least one of the participants would rather be doing something else, is omnipresent. The pervasiveness of reluctant sex, combined with the difficulty of distinguishing between its benign and illicit appearances, poses a formidable obstacle for all those who wish to see sexual offenses successfully prosecuted even in those cases that do not involve the use of force. The standard of consent, meant to mark this distinction, often fails to do so due to its failure to engage with the social and political determination this demarcation entails. Focusing on the subjective disposition of the victim, consent misleads us to think that criminality hinges on some analytically attainable separation between wanted and unwanted sex, only to find that the reality of reluctant sex defies any such analysis. Consequently, legal decisionmakers, wary of drawing too broad of a net that might also capture “acceptable” forms of reluctant sex, all-too-often opt for the arbitrary standard of violent threats to artificially limit the prosecution of sexual offenses.

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Fletcher on Foreign Corruption as Market Manipulation

Gina-Gail S. Fletcher (Indiana University Maurer School of Law) has posted Foreign Corruption As Market Manipulation (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:

 

On March 6, 2019, the Commodity Futures Trading Commission (“CFTC”) announced that it would be taking an active role in prosecuting violations of the Commodities Exchange Act (“CEA”) that involve foreign corruption.1 On the same date, the CFTC published an enforcement advisory further signaling its intention to investigate and prosecute violations of the laws and regulations of the CEA linked to foreign corrupt practices, such as violations of the Foreign Corrupt Practices Act (“FCPA”).2 The FCPA prohibits U.S.-based businesses from engaging in corrupt practices, such as bribery, in foreign countries in which they do business.3 Currently, both the Department of Justice (“DOJ”) and the Securities and Exchange Commission (“SEC”) vigorously and vigilantly enforce the FCPA. How and to what extent, therefore, would the involvement of the CFTC impact the prosecution of FCPA violations?

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Ashley on Sexual Fraud and Transgender Nondisclosure

Florence Ashley (McGill University, Faculty of Law, Students) has posted Genderfucking Non-Disclosure: Sexual Fraud, Transgender Bodies, and Messy Identities ((2018) Dalhousie Law Journal, 41(2), pp. 339-377) on SSRN. Here is the abstract:

 

​If I don’t tell you that I was assigned male at birth, as a transgender person, can I go to jail for sexual assault by fraud? In some jurisdictions like England or Israel, the answer is: yes. Previous arguments against this criminalisation have focused on the realness of trans people’s genders: since trans men are men and trans women are women, it is not misleading for them to present as they do. Highlighting the limitations of this position, which doesn’t fully account for the messiness of gendered experiences, the author puts forward an argument against the criminalisation of (trans)gender history non-disclosure rooted in privacy. Gender identity is a private matter and people should not be forced to figure it out or communicate it to others to have an intimate life. Mobilised in this context, privacy can be understood as a refusal of the state’s authority to order our gendered lives. The author argues that this mobilisation is compatible with leftist critiques of privacy. Finally, the author considers whether (trans)gender history non-disclosure is a criminal offence in Canada and concludes that it is not.