CrimProf Blog

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

Monday, November 4, 2019

"These Machines Can Put You in Jail. Don’t Trust Them."

The New York Times has this account, including frightening allegations against some of those responsible for guaranteeing accurate testing and a survey of recent legal challenges.

November 4, 2019 | Permalink | Comments (0)

Walts on Child Labor Trafficking in the US

Katherine Kaufka Walts (Loyola University Chicago School of Law) has posted Child Labor Trafficking in the United States: A Hidden Crime (Social Inclusion (ISSN: 2183–2803) 2017, Volume 5, Issue 2, Pages 59–68) on SSRN. Here is the abstract:
 
Emerging research brings more attention to labor trafficking in the United States. However, very few efforts have been made to better understand or respond to labor trafficking of minors. Cases of children forced to work as domestic servants, in factories, restaurants, peddling candy or other goods, or on farms may not automatically elicit suspicion from an outside observer as compared to a child providing sexual services for money. In contrast to sex trafficking, labor trafficking is often tied to formal economies and industries, which often makes it more difficult to distinguish from ”legitimate” work, including among adolescents. This article seeks to provide examples of documented cases of child labor trafficking in the United States, and to provide an overview of systemic gaps in law, policy, data collection, research, and practice. These areas are currently overwhelmingly focused on sex trafficking, which undermines the policy intentions of the Trafficking Victims Protection Act (2000), the seminal statute criminalizing sex and labor trafficking in the United States, its subsequent reauthorizations, and international laws and protocols addressing human trafficking.

November 4, 2019 | Permalink | Comments (0)

Klein & Teeter on The Discretionary Authority of Federal District Court Judges

Susan R. Klein and Chloe Teeter (University of Texas School of Law and Independent) have posted Movements in the Discretionary Authority of Federal District Court Judges Over the Last 50 Years (Loyola University Chicago Law Journal, Forthcoming) on SSRN. Here is the abstract:
 
From my vantage point, judges’ individual control over their courtrooms remains largely stable. Updated but similar versions of the problems encountered (and created) by Judge Julius Hoffman now confront our newer, younger, and perhaps better qualified judges. While federal judges may be less likely to encounter radical, overtly political defendants and government officials trying to wrest control (and public opinion) from them in court, they are more likely to see minority defendants along with accompanying “courtwatchers” who want inequities in the criminal justice system noticed in individual cases. I will first describe the Chicago Eight (soon to become the Chicago Seven) trial and then explain the new courtwatchers in Part I.

On the other hand, I have witnessed federal judges having lost, primarily since the mid-1980s, much of their earlier control over the criminal justice process in general, but in particular over charging and sentencing decisions.

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November 4, 2019 | Permalink | Comments (0)

Nesbitt & West on Canadian National Security Bill

Michael Nesbitt and Leah West (University of Calgary, Faculty of Law and Carleton University - Norman Paterson School of International Affairs) have posted Bill C-59, an Act Respecting National Security Matters: What It Does and Why It Matters (Alberta Law Review, Vol. 57, No. 1, 2019) on SSRN. Here is the abstract:
 
Forum Introduction to Special Edition of the Alberta Law Review on Bill C-59: An Act Respecting National Security Matters passed into law in June 2019.

It is no exaggeration to say that this is the most wide-reaching and important update to Canada’s national security legal framework and organizational structure since at least 1984, when the Canadian Security Intelligence Service Act hived off the security and intelligence functions of the Royal Canadian Mounted Police (RCMP) to create the Canadian Security and Intelligence Service (CSIS). Among other things, the ATA 2017 created an entirely new oversight body in the form of the Intelligence Commissioner (IC), radically redesigned intelligence review, reformed and added new lines of operations for the Communications Security Establishment (CSE) including brand-new offensive and defensive cyber authorities, and made substantial changes to the breadth and scope of the information CSIS can collect. These changes will assuredly be both vital to the protection of Canadian national security and controversial with regards to the civil liberties of Canadians in the years to come.

November 4, 2019 | Permalink | Comments (0)

Sunday, November 3, 2019

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Australia's 'Abhorrent Violent Material' Law: Shouting 'Nerd Harder' and Drowning Out Speech

Harvard University - Harvard Law School
101
2.

The Interior Structure of Immigration Enforcement

University of North Carolina School of Law
71
3.

Closure in the Criminal Courtroom: The Birth and Strange Career of an Emotion

DePaul University - College of Law
63
4.

Facial Recognition and the Fourth Amendment

University of the District of Columbia - David A. Clarke School of Law
63
5.

Twisted Into Knots: Canada’s Challenges in Lawful Access to Encrypted Communications

Carleton University - Norman Paterson School of International Affairs and University of Ottawa - Common Law Section
60
6.

Kahler v. Kansas: Insanity and the Historical Understanding of Mens Rea

University of North Carolina School of Law
59
7.

The Mens Rea for Sexual Assault, Sexual Touching and Sexual Act Offences in New South Wales: Leave it Alone (Although You Might Consider Imposing an Evidential Burden on the Accused)

The University of Sydney Law School
54
8.

Methods and Severity: The Two Tracks of Section 12

Queen's University - Faculty of Law and York University - Osgoode Hall Law School
52
9.

The Problem of Algorithmic Corporate Misconduct

University of Iowa - College of Law
51
10.

Clemency As the Soul of the Constitution

University of St. Thomas - School of Law (Minnesota)
49

November 3, 2019 | Permalink | Comments (0)

Saturday, November 2, 2019

Next week's criminal law/procedure argument

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

Monday

  • Kansas v. Glover: Whether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.

November 2, 2019 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

The Law & Politics of Cyberattack Attribution

University of California, Los Angeles (UCLA) - School of Law
172
2.

The Missing Regulatory State: Monitoring Businesses in an Age of Surveillance

Boston University - School of Law
151
3.

Demise of 'One Country, Two Systems'? Reflections on the Hong Kong Rendition Saga

The University of Hong Kong - Faculty of Law
100
4.

Amicus Brief of Professor Andrew Manuel Crespo in Kansas v. Glover (18-556)

Harvard Law School
95
5.

Beyond Compare? A Codefendant's Prison Sentence As a Mitigating Factor in Death Penalty Cases

CUNY School of Law
87
6.

The Consequences of Automating and Deskilling the Police

University of California, Davis - School of Law
76
7.

The Interior Structure of Immigration Enforcement

University of North Carolina School of Law
71
8.

Strategic Games and Algorithmic Secrecy

McGill University Faculty of Law and New York University School of Law
68
9.

Equal Protection Under Algorithms: A New Statistical and Legal Framework

Harvard Law School and Harvard University - Harvard Kennedy School (HKS)
66
10.

Facial Recognition and the Fourth Amendment

University of the District of Columbia - David A. Clarke School of Law
63

November 2, 2019 | Permalink | Comments (0)

Friday, November 1, 2019

Ferguson on Facial Recognition and the Fourth Amendment

Andrew Guthrie Ferguson (University of the District of Columbia - David A. Clarke School of Law) has posted Facial Recognition and the Fourth Amendment on SSRN. Here is the abstract:
 
Facial recognition offers a totalizing new surveillance power. Police now have the capability to monitor, track, and identify faces through networked surveillance cameras and datasets of billions of images. Whether identifying a particular suspect from a still photo, or identifying every person who walks past a digital camera, the privacy and security impacts of facial recognition are profound and troubling.

This Article explores the constitutional design problem at the heart of facial recognition surveillance systems. One might hope that the Fourth Amendment – designed to restrain police power and enacted to limit governmental overreach – would have something to say about this powerful and permeating surveillance technology. But current doctrine and constitutional theory offers little privacy protection and less practical security than one might expect. Even worse, by studying the Fourth Amendment through the lens of facial recognition technology other doctrinal limitations come into focus. Issues of error rates, racial bias, unfairness, and transparency in policing more generally become magnified when trying to design a new surveillance system for law enforcement.

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November 1, 2019 | Permalink | Comments (0)

Selbin on Juvenile Fee Abolition in California

Jeffrey Selbin (University of California, Berkeley - School of Law) has posted Juvenile Fee Abolition in California: Early Lessons and Challenges for the Debt Free Justice Movement (North Carolina Law Review, Vol. 98, 2020, Forthcoming) on SSRN. Here is the abstract:
 
Fees in the criminal and juvenile legal systems are a key driver of racial and economic injustice. This essay draws on years of research to describes fees charged to families with youth in California's juvenile delinquency system, the successful campaign to abolish the fees effective January 1, 2018, an emerging movement for fee reform ("debt-free justice") nationally, and early lessons and challenges for ending such regressive and racially discriminatory laws and practices everywhere.

To date in California, hundreds of thousands of predominantly low-income and disproportionately Black and Brown families have been relieved of more than $237 million in previously assessed fees. But the liberatory promise of debt free justice is contingent not only on ending systemic wealth extraction from low-income communities of color. In addition to abolishing fees, the essay concludes by arguing that we need to replace the current juvenile and criminal legal systems with publicly-funded justice models that invest in the same people who have been unjustly harmed by mass criminalization.

November 1, 2019 | Permalink | Comments (0)

Cooper on Drug Court Survey Report

 
The 2002 Drug Court Survey Report consists of eight parts, reflecting responses from the
principal agencies involved in drug court program operations: (1) general program information provided by the court; (2) a special section for DUI/DWI drug court programs completed by the DUI drug court judge or his/her designee; (3) prosecution office perspectives; (4) defense counsel perspectives; (5) law enforcement agency perspectives; (6) corrections agency perspectives; (7) treatment provider perspectives; and (8) the perspectives of over 800 participants in the final phase of program participation. In addition, the Executive Summary provides a synopsis of the major findings presented in these sections, representing responses from 171 programs in operation for over one year. In addition to current operational issues, the survey report documents the substantial growth of drug courts (now operating in every state) since the earlier 1997survey, particularly marked for juvenile and family drug courts, and Native American Tribal Healing to Wellness Courts.currently operating in39 tribal courts, located in 14 states, with additional programs being planned in 54 additional tribal courts.

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November 1, 2019 | Permalink | Comments (0)

Thursday, October 31, 2019

Hornby on Transparent Federal Sentencing

D. Brock Hornby has posted Can Federal Sentencing Remain Transparent? (Judicature, Spring 2019, Volume 102 Number 1) on SSRN. Here is the abstract:

Federal judges traditionally explained to victims, the defendant, and the community in open court the sentences they imposed. Now that openness is in jeopardy, as federal prosecutors and defense counsel seek to conceal or disguise defendants’ cooperation with prosecutors or law enforcement and how that cooperation decreases a sentence’s severity. They request secrecy because defendants known or believed to have cooperated face violence in federal prison. But transparency is paramount to the federal judicial role. If cooperation can be successfully disguised when it occurs, the public will be unable to ascertain whether a federal judge’s explanation for any sentence is forthright and complete. The judge cannot protect against violence in prison. For the integrity of the institution, federal judges should candidly and honestly pronounce their sentencing reasoning in open court including the fact, if not the extent and details, of cooperation and the effect it has on the sentence length. We must not deceive the public.

October 31, 2019 | Permalink | Comments (0)

Perlin on Therapeutic Jurisprudence and Non-Judicial Officers

 
The role of non-judicial officers occupies a hidden space in the US judicial system. Statutorily sanctioned in many jurisdictions, such officers have a wide range of duties and responsibilities, including hearing certain pre-trial motions (e.g., NY CPL § 255.20) and making decisions as to conditions of probation for sex offenders (e.g., SDCL § 23A-27-12.1). In many jurisdictions, these officers are frequently not lawyers, and that there is significant evidence that many of the basic rudiments of the criminal trial process are often not honored.

There has been virtually no consideration of this phenomenon in either the scholarly literature, and absolutely no consideration from the perspective of therapeutic jurisprudence (TJ), Among TJ’s primary focuses is an inquiry into whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. This clearly does not happen in the systems under discussion here.

October 31, 2019 | Permalink | Comments (0)

Karsai on The European Public Prosecutor's Office

Krisztina Karsai (University of Szeged) has posted External Effects of the European Public Prosecutor’s Office Regime (Miskolci Jogi Szemle 14. évfolyam, 2. különszám 1. kötet, 2019) on SSRN. Here is the abstract:
 
The enhanced cooperation for establishing the EPPO as a new and genuine transnational investigating framework for combating crimes affecting the financial interests of the EU promises effectiveness and a means for overcoming institutional paralysis in transnational criminal cases. The concept and future structure of this cooperation method between EU-MS allow the non-participation for MS by their own decision. On the one hand, this flexibility is a key factor of deepening integration in this field, but on the other hand, this bears significant risks for general goals and values of European integration, especially in the field of exercising jurisdiction (power of punishment) and launching criminal investigations. This flexibility has clear and visible consequences that are covered by the term as external effects of enhanced cooperation. The paper focuses – after describing and shortly examining all the possible external effects of the EPPO – on the jurisdictional issues arising from the flexibility of the enhanced cooperation in order to address the main findings in connection with the real possibility of impunity and forum shopping methods.

October 31, 2019 | Permalink | Comments (0)

Beessoo & Foondun on Money Laundering Through Bitcoin

Vandana Beessoo and Aaynab Foondun (Middlesex University and Middlesex University) have posted Money Laundering Through Bitcoin: The Emerging Implications of Technological Advancement. on SSRN. Here is the abstract:
 
Bitcoin, conceived by the pseudonymous software developer Satoshi Nakomoto, is the world’s first cryptocurrency. This invention of peer-to-peer electronic cash has trigerred a series of apprehension in the financial world. The fact that it has enabled alternative means of transacting to conventional banking has steered a new source of stress within the financial arena. Bitcoin, in terms of technology and currency, has been defined in many ways. Albeit Paul Vigna and Michael Casey describe it as borderless, pseudo-anonymous, decentralised, and outside of regulatory monetary systems, other researches also suggest that these attributes potentially give rise for criminals to evade law enforcement. The focal point of this paper is to provide an insight on the emergence of illicit financial crimes particularly through money laundering, caused by the increasing use of bitcoins. The research paper explicates on two very common ways for “bitcoin laundering” namely: either through bitcoin mixes or bitcoin exchanges or by using both methods.

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October 31, 2019 | Permalink | Comments (0)

Wednesday, October 30, 2019

Coscas-Wiliams & Alberstein on Accelerated Proceedings in Continental Systems

Béatrice Coscas-Wiliams and Michal Alberstein (Bar-Ilan University - Faculty of Law and Bar-Ilan University - Faculty of Law) have posted A Patchwork of Doors: Accelerated Proceedings in Continental Criminal Justice Systems on SSRN. Here is the abstract:
 
Our paper surveys the development of hybrid models in two continental jurisdictions, Italy and France following the 1987 Recommendation of the Committee of Ministers of the Council of Europe to accelerate criminal proceedings through the introduction of guilty pleas, out-ofcourt settlements and simplified proceedings. We describe the development of various frameworks for criminal justice as a multi-door arena, of which the plea bargaining is but one of several possibilities. In our review, we emphasize the consensual element, the place of the search of truth and the role of the stakeholders. In particular, we examine the power of the judges that underpins these accelerated frameworks for criminal trials.

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October 30, 2019 | Permalink | Comments (0)

Kanner et al. on Judicial Involvement in Plea Bargaining in Israel

Sari Luz KannerDana RosenYosef Zohar and Michal Alberstein (affiliation not provided to SSRN, affiliation not provided to SSRN, affiliation not provided to SSRN and Bar-Ilan University - Faculty of Law) have posted Managerial Judicial Conflict Resolution (JCR) of Plea Bargaining: Shadows of Law and Conflict Resolution on SSRN. Here is the abstract:
 
This article focuses on a procedure that is nowadays the central door to criminal law in Israel - “Plea Bargains Facilitating Day” (“Moked”). It examines the role of the criminal judge in light of the vanishing trial phenomenon and the emergent reality of many doors to process legal conflicts in both the civil and criminal domains. Judicial conflict resolution (JCR) includes any activity by judges which aims to encourage an agreement between the parties to enable the closure of the legal case parties without the need of a full judicial procedure and the writing of reasoned judgment. In the criminal context, it includes judicial activity meant to influence the charges and the sentencing as stipulated within the plea agreement between the prosecution and the defense. To characterize the proceeding and gain an understanding of the judge’s role both in practice and in theory in this proceeding, we conducted quantitative and qualitative analyses on data collected from observations of 717 hearings in 704 criminal cases, in the Tel Aviv Magistrates Court on Moked days. Furthermore, we conducted a comparison of our findings with previous findings in the civil domain.

The Moked days, as determined by law, are meant for the conduct of preliminary proceedings on indictments, with the aim of limiting the factual or legal dispute, in whole or in part. This is in order to obviate the need for the presentation of evidence and bring the matter to a conclusion during the preliminary proceeding. We found that the trial reduction goal was largely achieved, as less than 8% of the cases in the plea bargain hearings that we observed were transferred to the trial stage. The importance of this finding is the indication that the Moked days were not just the exclusive entryway to the criminal process, but in most cases also constituted the exit. We also found that on average, 5.55 (SD=3.62) hearings were required for disposing of a case and the average duration of a legal proceeding from indictment to closure was 548.55 (SD=323.17) days. Those figures are significantly higher than the figures from past years and may point out that the conduct of these proceedings did not necessarily achieve efficiency and simplification of the criminal process. We found that during the preliminary proceedings the judges function as gatekeepers and employ a variety of practices to exhaust that function, in order to obviate the need to conduct a further evidentiary proceeding in the case. In most of the hearings that we observed, the judges’ role was confined to managerial-bureaucratic decisions, mostly technical, intended to enable the parties to craft the terms of the plea bargain by themselves. Only in a small share of cases, the judges took an active role in promoting the plea bargain’s terms, mainly when the parties ran into difficulties agreeing by themselves. In a tiny fraction of the cases, their intervention was of a therapeutic nature or fulfilled some other social role. The judges’ interventionist activities to promote a plea bargain included promoting, both narrowly and broadly, litigotiation between the parties; forecasting the judicial outcome; negatively presenting the judicial process; using lawyer-client relations to promote agreement, using soft techniques, and enhancing the defendant’s motivation.

These findings were compared to previous findings on the roles of judges in civil proceedings in the framework of the vanishing trial. Civil judges conduct a preliminary proceeding in only 30% of the cases, while 70% of the cases are closed without ever reaching the judge. Contrarily, in the criminal process, judges conduct all of the cases. We found that while civil judges were involved to a great extent in the cases they conducted, criminal judges were actively engaged in only 16.8% of the hearings we observed. In the remaining hearings, judges interventions were minimal, and their role confined to supervising the negotiations conducted outside the court. This article points to ways to close the gaps between the criminal and civil domains by promoting an active secretariat. Also discussed is the possibility of expanding a therapeutic and preventative approach in the framework of criminal judicial conflict resolution during the Moked days.

October 30, 2019 | Permalink | Comments (0)

Ramirez on Dodd-Frank Whistleblower Programs

Mary Kreiner Ramirez (Washburn University - School of Law) has posted Whistling Past the Graveyard: Dodd-Frank Whistleblower Programs Dodge Bullets Fighting Financial Crime (Loyola University Chicago Law Journal, Vol. 50, No. 3, 2019) on SSRN. Here is the abstract:
 
The United States’ reaction to the 2008 Financial Crisis, which caused global ramifications, included the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act to address a lack of oversight and accountability in the financial industry. Among its provisions, Dodd-Frank provided incentives for whistleblowers to report misconduct and protections for those who do. Despite its success, Dodd-Frank’s whistleblower programs face internal and external challenges that threaten their success. This Article discusses the current climate surrounding corporate accountability and suggests additional protections for whistleblowers and whistleblower actions: allowing private lawsuits against the government under Dodd-Frank’s whistleblower provisions, similar to those allowed under the False Claims Act.

October 30, 2019 | Permalink | Comments (0)

Fluker et al. on Funding Environmental Projects with Regulatory Prosecutions

Shaun FlukerJanice Paskey and Fiona Balaton (University of Calgary - Faculty of Law, affiliation not provided to SSRN and affiliation not provided to SSRN) have posted Funding Environmental Projects with Regulatory Prosecutions: Transparency and Accountability in Creative Environmental Sentencing (Forthcoming, Journal of Environmental Law and Practice (2019)) on SSRN. Here is the abstract:
 
This paper examines the use of creative sentencing orders which direct an offender to fund projects that facilitate objectives such as environmental research, education or remediation. Given the public interest character of sentencing for an environmental regulatory infraction, there is a surprising absence of transparency and accountability in the administration of these sentencing orders. The selection process for determining which projects are funded is shrouded in secrecy and is almost entirely a matter of discretion, which raises concerns that project recipients are chosen for reasons other than the environmental merit of their proposal. In our study of creative orders issued in Alberta, the majority of funding has been directed to post-secondary institutions and conservation funds who work closely with industry and government departments, while non-governmental environmental groups with established research, education and remediation programs appear to have received comparatively little funding. Good projects also need to be implemented, but insufficient details in sentencing orders and the absence of an oversight regime raises questions about whether project deliverables are ever met. This also creates risk that the funding is subsequently characterized as philanthropy by the offender. Transparency and accountability would be significantly enhanced by the enactment of legislation which establishes or appoints an agency to administer the funding and sets rules on matters such as public engagement in the project selection process, criteria used to evaluate project proposals, reporting on project outcomes, and enforcement.

October 30, 2019 | Permalink | Comments (0)

Tuesday, October 29, 2019

Lonati & Borlini on Italian Corporate Compliance in the Light of the US Experience

Simone Lonati and Leonardo S. Borlini (Bocconi University - Department of Law and Bocconi University, Angelo Sraffa Department of Legal Studies) have posted Corporate Compliance and Privatization of Law Enforcement. A Study of the Italian Legislation in the Light of the US Experience (Forthcoming, Negotiated Settlements i n Bribery Cases. A Principled Approach , Tina Søreide, and Abiola Makinwa (eds), (Edward Elgar: 2020)) on SSRN. Here is the abstract:
 
In bribery cases, compliance-based defense often implies substantial efforts and costs on the side of corporations for providing enforcement agencies with the facts of the case. In several jurisdictions, corporations and their private sector investigators shape those facts as they lay the ground for a negotiation-based enforcement action ever-more frequently. While public investigators do their own fact-finding missions, the financial consequences and the reputational stigma associated with bribery cases place corporations with a clear interest in proactive cooperation with the public investigation. At the same time, private entities’ proactive involvement in the fact-finding exercise questions the public monopoly on the investigative initiatives in criminal matters and, more subtly though, the very idea of State control on the law enforcement process. On several areas, peculiar kinds of public-private partnerships - featured by a hybrid approach to governance with voluntary monitoring activities and investigative strategies based on the acquisition and control of the private entities’ information assets - are gaining ground. However, in some European continental jurisdictions, which are anchored to a neat distinction between the respective roles of the public authorities and private sector in law enforcement, legislators seem particularly wary of such an equal cooperation in the fact-finding exercise and, occasionally, law enforcement authorities even perceive it as an obstacle to evaluate and evidence allegations.

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October 29, 2019 | Permalink | Comments (0)

Mack on Children and Miranda Waivers

Raneta Lawson Mack (Creighton University School of Law) has posted These Words May Not Mean What You Think They Mean: Toward a Modern Understanding of Children and Miranda Waivers (Boston University Public Interest Law Journal, Vol. 27, No. 258, 2018) on SSRN. Here is the abstract:
 
This article discusses the history of Miranda waiver standards and cases interpreting those standards as applied to children (including a discussion of the recent Slender Man case and the "Making a Murder" conviction involving Brendan Dassey). The article explores efforts on the state level to establish more protective standards for minors facing police interrogations and also takes a comparative look at international efforts to enhance children’s rights during custodial interrogations. Finally, the article offers proposed best practices that acknowledge the vulnerable position of minors in custodial interrogations while also allowing law enforcement to pursue reliable evidence of guilt.

October 29, 2019 | Permalink | Comments (0)