CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, April 2, 2020

Bellin on Evidence Rules that Convict the Innocent

Jeffrey Bellin (William & Mary Law School) has posted The Evidence Rules that Convict the Innocent (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:
 
Over the past decades, DNA testing has uncovered hundreds of examples of the most important type of trial errors: innocent defendants convicted of serious crimes like rape and murder. The resulting Innocence Movement spurred reforms to police practices, forensic science, and criminal procedure. This Article explores the lessons of the Innocence Movement for American evidence law.

Commentators often overlook the connection between the growing body of research on convictions of the innocent and the evidence rules. Of the commonly identified causes of false convictions, only flawed forensic testimony has received sustained attention as a matter of evidence law. But other important contributors, like mistaken identifications and unreliable confessions, also pass through evidence rules. These pathways to admission go unquestioned today, but are the result of long-forgotten policy choices that were once controversial precisely because they increase the likelihood of convicting the innocent.

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April 2, 2020 | Permalink | Comments (0)

"Mere Violations of Consumer Site Terms of Service Aren't Crimes"

Eugene Volokh has this post at The Volokh Conspiracy.

April 2, 2020 | Permalink | Comments (0)

"Washington governor signs facial recognition curbs into law"

From Jurist:

AN ACT Relating to the use of facial recognition services” will allow law enforcement to use facial recognition “in a manner that benefits society while prohibiting uses that threaten our democratic freedoms and put our civil liberties at risk.” This will include tracking victims of kidnapping and criminal suspects.

They must also train the people who will be using the services and have third parties ensure that the services are being used properly. They must also tell criminal defendants that facial recognition services have been used in their case so that attorneys may bring it up during trial if necessary.

April 2, 2020 | Permalink | Comments (0)

Evans on Categorical Nonuniformity

Sheldon Evans (St. John's University - School of Law) has posted Categorical Nonuniformity (Columbia Law Review, Vol. 120, No. 7) on SSRN. Here is the abstract:
 
The categorical approach, which is a method federal courts use to ‘categorize’ which state law criminal convictions can trigger federal sanctions, is one of the most impactful yet misunderstood legal doctrines in criminal and immigration law. For thousands of criminal offenders, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing harsh federal sentencing enhancements or even deportation for noncitizens. One of the normative goals courts have invoked to uphold this elements-based categorical approach is that it produces nationwide uniformity. Ironically, however, the categorical approach produces the opposite. By examining the categorical approach in the criminal sentencing and immigration contexts, this Article shows that relying on state criminal elements has produced nonuniformity due to the variations of state law.

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April 2, 2020 | Permalink | Comments (0)

Wednesday, April 1, 2020

"Coronavirus Misbehavior: When Was Licking a Toilet Ever a Good Idea?"

From The New York Times:

HOLLYWOOD, Fla. — Right around the time the World Health Organization was declaring the novel coronavirus a full-blown pandemic, Cody Lee Pfister walked into a Walmart in Missouri and delivered his own public service announcement — of the twisted variety.

Mr. Pfister, 26, looked directly into a camera and asked, “Who’s scared of coronavirus?” As if to answer his own question, he proceeded to lick a row of deodorants on a store shelf. For six seconds, he awkwardly slid backward, his tongue running from one brand of deodorant to the next.

He appeared amused. And satisfied enough to post the video online. Horror ensued. Grossed-out viewers from as close as his small hometown, Warrenton, Mo., to Ireland and the Netherlands reported the video prank to the police. And soon Mr. Pfister was facing charges of making a terrorist threat.

April 1, 2020 | Permalink | Comments (0)

"DOJ Inspector General uncovers pervasive problems in FBI wiretap applications"

From Jurist:

The FBI responded in a letter attached to the OIG’s report. In their response, the FBI admitted the validity of the OIG’s findings and agreed to comply with the OIG’s recommendations. However, they also stressed that they believed that their initial restructuring after the publishing of the first report was sufficient to address the issues identified moving forward. They also conceded that while “FISA is an indispensable tool to guard against national security threats,” the FBI must also ensure that “FISA applications are scrupulously accurate.”

April 1, 2020 | Permalink | Comments (0)

Chien et al. on Expungement

Colleen V. ChienZuyan HuangJacob Kuykendall and Katie Rabago (Santa Clara University - School of Law, Santa Clara University, affiliation not provided to SSRN and Santa Clara University, School of Law, Students) have posted The Washington State Second Chance Expungement Gap on SSRN. Here is the abstract:
 
Every time a person is convicted of a crime, this event is memorialized in the person’s criminal record in perpetuity, setting off thousands of potential collateral consequences, including being penalized in searches for employment, housing and volunteer opportunities. To remove these harmful consequences, Washington law allows people whose criminal records meet certain conditions to vacate their records. However, the Second Chance Gap in Washington “expungements” - the share of people who aren’t accessing the vacation remedy because of hurdles in the petition process - we suspect is large. To estimate it, we used research and practice expertise to approximately model the eligibility criteria for vacation set forth in the law and applied it to a sample of records obtained through a records request from the Administrative Office of the Courts of Washington.

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April 1, 2020 | Permalink | Comments (0)

Baer on Designing Corporate Leniency Programs

Miriam H. Baer (Brooklyn Law School) has posted Designing Corporate Leniency Programs (Cambridge Handbook on Compliance, D. Sokol & B. van Rooij, eds., forthcoming) on SSRN. Here is the abstract:
 
Corporate leniency programs promise putative offenders reduced punishment and fewer regulatory interventions in exchange for the corporation’s credible and authentic commitment to remedy wrongdoing and promptly self-report future violations of law to the requisite authorities.

Because these programs have been devised with multiple goals in mind—i.e., deterring wrongdoing and punishing corporate executives, improving corporate cultural norms, and extending the government’s regulatory reach—it is all but impossible to gauge their “success” objectively. We know that corporations invest significant resources in compliance-related activity and that they do so in order to take advantage of the various benefits promised by leniency regimes. We cannot definitively say, however, how valuable this activity has been in reducing either the incidence or severity of harms associated with corporate misconduct.

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April 1, 2020 | Permalink | Comments (0)

Tuesday, March 31, 2020

Cassell & Garvin on Victims Rights in State Constitutions

Paul G. Cassell and Margaret Garvin (University of Utah - S.J. Quinney College of Law and Lewis & Clark Law School) have posted Protecting Crime Victims in State Constitutions: The Example of the New Marsy's Law For Florida (110 Journal of Criminal Law and Criminology 99 (2020)) on SSRN. Here is the abstract:
 
A majority of states have adopted state constitutional amendments protecting crime victims’ rights. Most of those amendments were adopted long ago and many fail to comprehensively address crime victims’ interests. In response to these shortcomings, the nation is seeing a new wave of state constitutional amendments protecting crime victims’ rights. Among these states is Florida, where in November 2018 Florida voters approved significantly expanded protections for crime victims in Florida’s Constitution—“Marsy’s Law for Florida.”

This Article explains in detail how Marsy’s Law for Florida provides important new protections for crime victims in the Florida criminal justice process. The Article begins by providing a brief overview of the crime victims’ rights movement in this country. It then turns to the specific crime victims’ rights added by the new Florida Amendment, describing why each of these rights is an important addition to Florida’s Constitution (and other similar constitutional amendments in other states). The Article concludes by reviewing broader lessons to be learned from Florida’s new enactment, contending that Florida’s recent experience may be useful for other states considering expanding their state constitutional protections and may ultimately set the stage for a federal constitutional debate about protecting crime victims’ rights.

March 31, 2020 | Permalink | Comments (0)

Garrett et al. on Life Without Parole Sentencing

Brandon L. GarrettKarima ModjadidiKristen Renberg and Travis Seale-Carlisle (Duke University School of Law, Duke University School of Law, Duke University School of Law and affiliation not provided to SSRN) have posted an abstract of Life Without Parole Sentencing on SSRN. Here is the abstract:
 
What explains the puzzle of life without parole (LWOP) sentencing in the United States? In the past two decades, LWOP sentences have reached record highs, with over 50,000 prisoners serving LWOP. Yet during this same time period, homicide rates have steadily declined. The U.S. Supreme Court has limited the use of juvenile LWOP in Eighth Amendment rulings. Further, death sentences have steeply declined, reaching record lows. Although research has examined drivers of incarceration patterns for certain sentences, there has been little research on LWOP imposition. To shed light on what might explain the sudden rise of LWOP, we examine characteristics of the more than 1,500 LWOP cases in North Carolina, one of the states that imposes the largest numbers of these sentences. We begin by analyzing defendant race, crime, and sentence patterns by county. We associate LWOP with homicide rates, and examine interactions between homicide, victim race, and prior LWOP sentencing.

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March 31, 2020 | Permalink | Comments (0)

Monday, March 30, 2020

"Florida Arrests Pastor Who Defied Virus Orders"

The article is in the New York Times:

MIAMI — Before the Rev. Rodney Howard-Browne, the pastor of a Pentecostal megachurch in Florida, held two church services on Sunday — each filled with hundreds of parishioners — lawyers from the sheriff’s office and local government pleaded with him to reconsider putting his congregation in danger of contracting the coronavirus.

The pastor ignored them, proceeding with the services at the River at Tampa Bay Church and even providing bus transportation for members who needed a ride.

March 30, 2020 | Permalink | Comments (0)

"Parents Charged with Endangering Their Children by Having Large Party at Their House"

Eugene Volokh has this post at The Volokh Conspiracy, quoting a news account. In part:

Upon arrival, Officers discovered a gathering of approximately 40-50 people, including children, on the front lawn and in the street in front of the residence.  The Officers ordered the crowd to disperse, and made contact with the owners of the residence, Eliezer and Miriam Silber.  Eliezer Silber was charged with Violating Any Rule or Regulation Adopted by the Governor in violation of APP.A: 9-49h, as well as Endangering the Welfare of his five children who were at the gathering.  Miriam Silber was likewise charged with Endangering the Welfare of her five children.  They are both required to appear at a future court date in Ocean County Superior Court.

 

March 30, 2020 | Permalink | Comments (0)

Green on Federal Courts' Supervisory Authority

Bruce A. Green (Fordham University School of Law) has posted Federal Courts’ Supervisory Authority in Federal Criminal Cases: The Warren Court Revolution that Might Have Been (Stetson Law Review, Vol. 41, No. 241, 2020) on SSRN. Here is the abstract:
 
This article looks back at Warren Court criminal procedure decisions invoking the Court’s supervisory authority, beginning with Offutt v. United States in 1954. For the next seven years, the Court employed supervisory authority to rectify perceived procedural injustices in federal criminal cases, often in a manner that expanded procedural protections for federal criminal defendants generally. However, once the Court launched its “criminal procedure revolution” in 1961 with Mapp v. Ohio, the Court focused on the Bill of Rights as the source of minimal fair-process requirements. Discontinuing the development of supervisory-power jurisprudence, for which no compelling rationale had been articulated, made it easier for later Courts to be hostile to supervisory authority, just as they cut back on the later Warren Court’s constitutional criminal procedure decisions. The article closes by raising the possibility that the later Warren Court might have solidified supervisory power through decisions showing how it could be employed to go beyond the post-Mapp constitutional decisions, thereby developing a model jurisprudence of fair process in federal criminal cases that was not constricted by constitutional provisions and that was not constrained by the need to respect individual state variations.

March 30, 2020 | Permalink | Comments (0)

Asimow on American Vigilantism

Michael Asimow (SANTA CLARA LAW SCHOOL) has posted American Vigilantism — Popular Justice and Popular Culture (Vigilante Justice in Society and Popular Culture: A Global Perspective, Forthcoming) on SSRN. Here is the abstract:
 
This essay on American vigilantism is a chapter in the forthcoming book Vigilante Justice in Society and Popular Culture: A Global Perspective (Peter Robson & Ferdinando Spina, eds). It summarizes the rich history of American vigilantism, meaning that people administer popular justice by taking the law into their own hands. It focusses particularly on the San Francisco Vigilance Committees of 1851 and 1856 when large numbers of people who were frustrated by crime and corruption took over criminal law enforcement and hanged a number of desperados. The chapter also discusses San Francisco’s Chinatown Squad of 1879-1920, a group of police assigned the job of law enforcement in Chinatown by any means necessary. The chapter then turns to vigilantism in American movies. Given the centrality of vigilantism in American history and the hearty public approval it usually enjoys, it’s not surprising that a vast number of films concern this subject. The chapter concentrates on police vigilantism, exemplified by Dirty Harry and its sequels. Almost all of the Dirty Harry films were set in San Francisco (which connects the two halves of this chapter). These very successful movies transmitted a strong message of political conservatism. They depicted San Francisco as a pit of depravity and sexual permissiveness. Police vigilantism offends the criminal law compromise that gives government a monopoly on the use of force, but subject to a series of constraints that vigilantes ignore.

March 30, 2020 | Permalink | Comments (0)

Sunday, March 29, 2020

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Black Deaths Matter: The Race-of-Victim Effect and Capital Punishment

Northeastern University - School of Law
143
2.

The Complexity of College Consent

University of Colorado Law School
112
3.

Are We Responsible for Who We Are? Indoctrination and Social Influence as a Defense to Crime

University of Pennsylvania Law School and University of Pennsylvania Law School - Student/Alumni/Adjunct
102
4.

Institutionalizing Consent Myths in Grade School

Campbell University - Norman Adrian Wiggins School of Law
71
5.

Our Federalism on Drugs

Case Western Reserve University School of Law
64
6.

Sex, Causation, and Algorithms: Equal Protection in the Age of Machine Learning

University of Virginia School of Law
57
7.

Sex, Reasons, Pro Tanto Wronging, and the Structure of Rape Liability

University of Oxford, Faculty of Law
55
8.

Legal Iconography and Painting Constitutional Law

Florida International University (FIU) - College of Law
52
9.

Criminalizing Sex: A Unified Liberal Theory (Book Introduction)

Rutgers, The State University of New Jersey - Rutgers Law School
51
10.

Algorithms Acting Badly: A Solution from Corporate Law

University of Iowa - College of Law
51

March 29, 2020 | Permalink | Comments (0)

Saturday, March 28, 2020

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.
University of California, Berkeley School of Law

Date Posted: 19 Mar 2020 [new to top ten]

970
2.
King's College London – The Dickson Poon School of Law

Date Posted: 13 Feb 2020 [1st last week]

263
3.
University of Colorado Law School

Date Posted: 04 Mar 2020 [2nd last week]

170
4.
CUNY School of Law

Date Posted: 06 Feb 2020 [3rd last week]

158
5.
University of California, Los Angeles (UCLA) - School of Law

Date Posted: 12 Feb 2020 [4th last week]

110
6.
Federal Public Defender, Dist. of Arizona

Date Posted: 31 Jan 2020 [5th last week]

100
7.
DePaul University - College of Law

Date Posted: 11 Feb 2020 [6th last week]

90
8.
University of Pennsylvania Law School

Date Posted: 07 Feb 2020 [7th last week]

81
9.
The University of Mississippi School of Law

Date Posted: 12 Mar 2020 [new to top ten]

66
10.
The University of Sydney Law School and The University of Sydney Law School

Date Posted: 20 Feb 2020 

66

March 28, 2020 | Permalink | Comments (0)

Friday, March 27, 2020

Kerr on Decryption Originalism

Orin S. Kerr (University of California, Berkeley School of Law) has posted Decryption Originalism: The Lessons of Burr (134 Harvard Law Review (Forthcoming)) on SSRN. Here is the abstract:
 
The Supreme Court is likely to rule soon on how the Fifth Amendment privilege against self-incrimination applies to compelled decryption of a digital device. When the Court rules, the original understanding of the Fifth Amendment may control the outcome. This Article details an extraordinary case that illuminates the original understanding of the privilege and its application to compelled decryption. During the 1807 treason trial of Aaron Burr, with Chief Justice John Marshall presiding, the government asked Burr’s private secretary if he knew the cipher to an encrypted letter Burr had sent to a co-conspirator. Burr’s secretary pled the Fifth, leading to an extensive debate on the meaning of the privilege and an opinion from the Chief Justice.

The Burr dispute presents a remarkable opportunity to unearth the original understanding of the Fifth Amendment and its application to surprisingly modern facts. The lawyers in Burr were celebrated and experienced advocates. The Chief Justice allowed them to argue the Fifth Amendment question in exhaustive detail. And an attorney recorded the entire argument in shorthand, including dozens of legal citations to the specific pages of the authorities the lawyers invoked. The rich materials allow us to reconstruct for the first time precisely how the privilege was understood by leading lawyers and Chief Justice John Marshall soon after the Fifth Amendment’s ratification. The Article presents that reconstruction, and it concludes by applying Burr’s lessons to the modern problem of compelled decryption of digital devices such as cell phones and computers.

March 27, 2020 | Permalink | Comments (0)

Zamoff on Impact of Body Cameras on Excessive Force Cases

Mitchell Zamoff (University of Minnesota - Twin Cities - School of Law) has posted Assessing the Impact of Police Body Camera Evidence on the Litigation of Excessive Force Cases (54 Georgia Law Review 1 (2019)) on SSRN. Here is the abstract:
 
In the wake of several hotly debated and widely publicized shootings of civilians by police officers, calls for the increased use of body-worn cameras (bodycams) by law enforcement officers have intensified. As police departments across the country expand their use of this emergent technology, courts will increasingly be presented with video evidence from bodycams when making determinations in cases alleging the excessive use of force by the police. This Article tests the hypotheses that bodycam evidence will be dispositive in most excessive force cases and that such evidence will positively impact the way those cases are litigated and decided. In doing so, it presents the first review of the evidentiary impact of bodycams on the outcomes of excessive force cases. By compiling and evaluating the first data set of reported excessive force cases filed in the federal courts involving bodycam evidence, this Article makes several findings about how this highly anticipated evidence is affecting excessive force litigation and jurisprudence. Those findings include (1) about one-third of all bodycam videos submitted in support of defense summary judgment motions do not capture the entire incident at issue in the lawsuit; (2) whether a bodycam video is complete or partial has a profound impact on summary judgment outcomes in bodycam cases; (3) bodycam evidence improves defendants’ likelihood of success on summary judgment in excessive force cases only if the bodycam video is complete; (4) defendants are actually more likely to prevail on summary judgment in excessive force cases without any bodycam video evidence than in cases with a partial bodycam video; and (5) summary judgment motions are filed and adjudicated more expeditiously in excessive force cases with bodycam videos (especially complete videos) than cases without bodycam evidence. These findings illustrate both the benefits and limitations of current bodycam technology, suggest the need for America’s police departments to accelerate the adoption of bodycam programs and promulgate policies that will maximize the evidentiary value and accuracy of bodycam evidence, and highlight the need for continued research to inform policy and funding determinations related to the use of bodycams by law enforcement.

March 27, 2020 | Permalink | Comments (0)

McLeod on Communicating Punishment

Marah Stith McLeod (Notre Dame Law School) has posted Communicating Punishment on SSRN. Here is the abstract:
 
Does it matter whether convicted offenders understand why they are being punished? In the death penalty context, the Supreme Court has said yes; a prisoner who cannot understand the state’s reasons for imposing a death sentence may not be executed. Outside the capital context, the answer is less clear. This Article focuses on why and how states should help all offenders make sense of their sanctions, whether imposed for retribution, for deterrence, for incapacitation, or for rehabilitation.

Judges today sometimes try to explain sentences to criminal offenders so that they know the purposes of their suffering. But judges are busy, defendants are not always interested, and the law often treats such explanations as unimportant or even unwise. Legislatures, moreover, rarely convey the purposes of statutory penalties, plea bargaining obscures the reasons for punishment, and the experience of punishment does not always reflect its social aims.

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March 27, 2020 | Permalink | Comments (0)

Sullivan on Probable Cause and Affirmative Defenses

Ryan Sullivan (University of Nebraska College of Law) has posted Revitalizing Fourth Amendment Protections: A True Totality of the Circumstances Test in § 1983 Probable Cause Determinations (Iowa Law Review, Vol. 105, No. 687, 2020) on SSRN. Here is the abstract:
 
The Article analyzes claims of police misconduct and false arrest, specifically addressing the issue of whether a police officer may ignore evidence of an affirmative defense, such as self-defense, when determining probable cause for an arrest. The inquiry most often arises in § 1983 civil claims for false arrest where the officer was aware of some evidence a crime had been committed, but was also aware of facts indicating the suspect had an affirmative defense to the crime observed. In extreme cases, the affirmative defense at issue is actually self-defense in response to the officer’s own unlawful conduct. As police brutality and false arrest claims rise, so too will the prevalence of this issue.

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March 27, 2020 | Permalink | Comments (0)