“Ag-Gag” Legislation and Public Choice Theory: Maintaining a Diffuse Public by Limiting Information

By Jessica Pitts*

Volume 40.1

*The University of Texas School of Law, J.D. expected 2013; B.A., University of Colorado, 2010.  I would like to thank my brother for inspiring me to be a voice for animals, and my husband for his unwavering support.

I.  Introduction

Rolling hills, meandering blue streams, fresh air and sunlight.[1]  A quick death that minimizes pain.[2]  Wholesome and nutritious food for our families.[3]  Although these are the pictures many Americans imagine about meat and where it comes from, it could not be further from the truth.  This misinformed belief is perpetuated by the companies that sell meat products, by state legislatures aiming to criminalize the distribution of information about conditions on factory farms,[4] and by the federal government, which labels the collection and dissemination of this information as “terrorism.”[5]  Part II of this note examines existing and proposed “Ag-Gag” legislation: laws prohibiting the acquisition and, more often, the distribution of information about factory farms.  Part III discusses this legislation through the lens of Public Choice Theory, concluding that such legislation is an industry-supported effort to maintain the status quo and that limiting information serves only to intensify the public choice problem by inhibiting people’s ability to make informed choices as both consumers and voters.

[1].For example, see California’s “Happy Cows” campaign, depicting pastoral landscapes and small family-farming operations.  Happy Cows TV, Real California Milk,, http://www.realcaliforniamilk.com/advertising/happy-cows-spots/ (last visited Sept. 22, 2012).  In People for the Ethical Treatment of Animals, Inc. v. Cal. Milk Producers Advisory Bd., PETA sued the Board claiming its “Happy Cows” advertising campaign was false and deceptive.  22 Cal. Rptr. 3d 900, 901 (Cal. Ct. App. 2005).  The court dismissed the case because the Board is a government entity not subject to California’s Unfair Business Practices Act, but the court left open whether a different result might have been reached had the campaign come from a private company instead of a governmental entity.  Id. at 905–08.

[2].Despite people’s expectation that animal husbandry practices in raising and slaughtering livestock are humane, standard practices are often not humane.  See, e.g., N.J. Soc’y for Prevention of Cruelty to Animals v. N.J. Dep’t of Agric., 955 A.2d 886 (N.J. 2008) (holding that the Department of Agriculture failed in its obligation to enact regulations to ensure the “humane” treatment of animals when it allowed for a “routine husbandry practices” exception, when routine animal husbandry practices such as tail docking are inhumane).  See Jones v. Butz, 374 F. Supp. 1284, 1285–86, 1289–92 (S.D.N.Y. 1974), for a description of slaughtering techniques comparing Kosher and traditional slaughter methods.

[3].The nutritional benefit of meat is controversial.  See, e.g., Physicians Comm. for Responsible Med. v. Tyson Foods, Inc., 13 Cal. Rptr. 3d 926, 928 (Cal. Ct. App. 2004) (arguing that Tyson’s advertising campaigns representing that its chicken is “heart healthy” and “all-natural” were false and deceptive because “‘the majority of Tyson chicken products contain substantial levels of fat and cholesterol, the consumption of which will not only fail to reduce the risk of heart disease, but is actually likely to increase such risk.’”).  Indeed, consumption of meat can cause serious illness and even death. See, e.g., Multistate Outbreak of E. coli O157:H7,Centers For Disease Control and Prevention (Jan. 6 2012), http://www.cdc.gov/ecoli/2010/0105.html (describing a multistate outbreak of E. coli resulting in nine hospitalizations); Multistate Outbreak of Human Salmonella Typhimurium Infections Linked to Ground Beef, Centers For Disease Control and Prevention (Feb. 1, 2012), http://www.cdc.gov/salmonella/typhimurium-groundbeef/020112/index.html (describing a seven-state salmonella outbreak); see also Rep. Eshoo’s introduction of the Meat and Poultry Pathogen Reduction and Enforcement Act (“Kevin’s Law”), 2005 Cong U.S. HR 3160, describing how “Kevin’s Law is named in memory of 2 1/2 -year-old Kevin Kowalcyk, who died so tragically in 2001 after eating a hamburger contaminated with E. coli O157:H7.  Kevin’s untimely death was agonizing and brutal.  No child, no person should experience the pain that Kevin did, and no family should have to bear witness to a loved one suffering in the way that Kevin did.”  Eshoo Introduces ‘Kevin’s Law’, Congresswoman Anna G. Eshoo (June 30, 2005), http://eshoo.house.gov/index.php?option=comcontent&task=view& id=104.

[4].See, e.g., Kan. Stat. Ann. § 47-1827 (West 2011); N.D. Cent. Code ann. § 12.1-21.1-02 (West 2011); Mont. Code Ann. § 81-30-103 (West 2011); Iowa Code Ann. § 717A.3A (West 2012); Utah Code Ann. § 76-6-112 (West 2012).

[5].Animal Enterprise Terrorism Act, 18 U.S.C. § 43 (2006).

Trashing Our System of Justice? Overturning Jury Verdicts Where Evidence is Found in The Computer’s Cache

By J. Elizabeth McBath*

Volume 39.3

* Assistant United States Attorney in the Northern District of Georgia.  J.D., magna cum laude, Indiana University School of Law – Bloomington; M.A., Political Science, Indiana University; B.A., cum laude, Furman University.  The views expressed in this article are neither the views of the United States Department of Justice nor the views of the United States Attorney in the Northern District of Georgia.  The views should be attributed solely to the author.


Jury verdicts are being overturned by some courts of appeals based on the courts’ analysis of a crime that the defendant was not charged with or convicted of, and based on “evidence” that the jury did not consider.  Specifically, juries are convicting defendants for possessing or receiving child pornography on their computer screens, but courts of appeals are overturning the convictions by analyzing whether the defendant possessed or received a copy of the image found in the defendant’s computer’s “trash,” thus disregarding the image that resided on the screen.

It is unclear why this is happening, but two likely scenarios exist.  First, it is possible that some courts of appeals do not understand the computer technology evidence presented in these cases.  Approximately seven years ago, Ty E. Howard first recognized that, because images displayed on a computer screen are simultaneously captured in another area of the computer’s hard drive, courts that do not understand computer technology are vulnerable to making incorrect findings by basing their analysis on the copy found in a separate area of the hard drive—the “trash”—instead of on the image that once appeared on the computer screen.[1]  As Howard prophesized back then: “While gaps in understanding may not have resulted in errors of law as of yet, the threat exists.”[2]

This article takes Howard’s initial theory and examines how it has played out since originally written by providing a thorough examination of all child pornography cases involving images on the defendant’s computer that have been decided since its publication.  This analysis uncovers that Howard’s identified threat has now become a reality.

This article then takes Howard’s initial proposition a step further, and asks whether, instead of misunderstanding technology, it is possible that judges are using technology as a loophole to overturn convictions with which those judges do not agree.

From there, this article examines the various harms that may result from the appeals courts’ behavior, including harms within the judiciary itself, between the three branches of government, and between the government and its citizenry.

This article concludes with suggestions on where we should go from here, including a proposal to establish a nationwide database allowing judges to publicly register their discontent with the law without having to engage in covert nullification.

Before addressing these bigger questions, however, this article starts by explaining the offenses of possessing and receiving child pornography, and explaining the unique evidence in prosecutions where child pornography is not saved to the computer’s hard drive, but where the images are instead found in the computer’s cyber trashcan.

[1].Ty E. Howard, Don’t Cache Out Your Case: Prosecuting Child Pornography Possession Laws Based on Images Located in Temporary Internet Files, 19 Berkeley Tech L.J. 1227, 1253, 1272 (2004).

[2].Id. at 1272.

Predators and Propensity: The Proper Approach for Determining The Admissibility of Prior Bad Acts Evidence in Child Sexual Abuse Prosecutions

By Basyle J. Tchividjian*

Volume 39.3

* Professor Tchividjian is a former child abuse prosecutor from Florida who currently teaches Child Abuse and the Law and several other criminal law related courses at Liberty University School of Law.  Professor Tchividjian also serves as Executive Director of GRACE (Godly Response to Abuse in the Christian Environment), www.netgrace.org.  The author thanks Jeremy Lemon and Stephanie Weiss for their invaluable research, feedback, and edits to this Article.


On March 1, 2011, fourteen-year-old Kelly Peters told her father that Christopher Smith had repeatedly sexually abused her.[1]

Kelly Peters and her family have been good friends with the Smith family for approximately ten years.  The families often vacationed together and visited each other’s homes for cook-outs and other social occasions. The Smiths have one child named Sabrina, who has become Kelly’s best friend.  Kelly’s mother tragically died in 2010 after a long battle with cancer.  During those difficult days, Kelly frequently stayed with the Smith family when her mother was away seeking medical treatment.  Oftentimes during those visits, Christopher Smith was the only adult home with Kelly and Sabrina.

Kelly Peters alleges that during the past two years, Christopher Smith sexually abused her on four to five occasions. She remembers that the abuse began during her visits with the Smiths towards the end of her mother’s life.  Kelly recalls that the abuse always occurred when she and Mr. Smith were alone in his vehicle.  On the first occasion, Chris Smith unzipped his pants, took out his penis, and told Kelly to touch it.  Confused, but very trusting of Mr. Smith, Kelly complied with his request.  After that incident, every time Mr. Smith was alone with Kelly in the car, he made her touch his penis.  The last time this occurred, Kelly attempted to push Mr. Smith away but without success.  Christopher Smith immediately looked at Kelly and stated: “This is our little secret, if you tell anyone you will never be able to see Sabrina again.”  About two weeks later, Kelly Peters was finally able to disclose the abuse to her father.  Mr. Peters immediately reported Mr. Smith to the local police department and a subsequent prosecution ensued.

While investigating these crimes, the prosecutor has learned that other children have alleged that Christopher Smith sexually abused them.  Though none of these prior allegations resulted in formal charges, the prosecutor wants to introduce them as “prior bad act evidence” in the trial against Christopher Smith.

Collateral Abuse Evidence

1. Brian Smith—Brian Smith is the twenty-four-year-old nephew of Christopher Smith.  His uncontroverted testimony is that when he was a child, Brian’s family lived next door to his uncle.  Because they lived next door and were family, Brian’s parents often asked Chris to watch Brian when they would travel out of town.  Brian alleges that when he was between nine and twelve years old, Christopher Smith sexually abused him on numerous occasions while he was staying at his uncle’s house.  The abuse primarily consisted of Christopher Smith ordering Brian into the spare bedroom where he touched Brian’s penis with his hands.  Brian does remember that after each episode of abuse, Christopher Smith threatened him about not seeing his parents again if he told anyone about their “little secret”.  When Brian was 14 years old, he finally disclosed this abuse to his mother who promptly reported the matter to law enforcement.  A few weeks later, Brian’s family was informed that the prosecutor was not going to file charges against Christopher Smith due to “lack of evidence.”

2. Tommy Rickles—Tommy is a forty-five-year-old man whose uncontroverted testimony is that when he was eleven years of age, he attended a summer middle school youth camp.  At camp, all of the boys slept in a large dormitory-style room.  On the last night of camp, Tommy woke up and found a stranger kneeling by his bed touching his [Tommy’s] penis underneath his pajamas.  Tommy immediately screamed causing the stranger to turn around and escape through one of the dorm windows.  The perpetrator was later identified as a seventeen-year-old camp cook named Christopher Smith.  Criminal charges were never brought against Chris Smith due to Tommy being emotionally incapable to testify.  After years of therapy, Tommy is now fully prepared to testify about what happened that evening at summer youth camp.

3. Susanna Phillips—Susanna Phillips is a seventeen-year-old girl whose uncontroverted testimony alleges that Christopher Smith sexually abused her when she was approximately five years old.  Susanna’s mother had met Mr. Smith through a mutual friend and they became acquaintances.  Shortly thereafter, Christopher Smith informed Susanna’s mother that he was having problems in his marriage and asked to sleep at her apartment for a couple of weeks.  Susanna’s mother agreed to this arrangement as long as Mr. Smith agreed to pay rent and furnish his own food.  During this time, Chris stayed in Susanna’s room while she slept on the living room couch.  Susanna remembers one occasion when she was awoken during the middle of the night to discover that she was in her own bed, and Chris Smith was touching her privates with his hands.  Shortly thereafter, Mr. Smith carried her back to the living room couch and went back to bed.

The testimonies provided by Brian Smith, Tommy Rickles, and Susanna Phillips are undoubtedly helpful to the prosecution in its case against Christopher Smith.  All three demonstrate that the defendant has allegedly sexually victimized children in the past, thus strengthening the claim made by Kelly Peters.  However, “probative value,” not whether the evidence is “helpful,” is the legal standard in determining the admissibility of relevant prior bad acts.  Are any of the proposed testimonies relevant?  If so, are they probative?  Whose testimony is more probative?  Why?  Is there a particular standard and analysis the court can use in deciding whether the jury should hear any of the three proposed testimonies?  How does a court determine the admissibility of relevant evidence that is extraneous to the facts of the underlying child sexual abuse case, which will undoubtedly be prejudicial against the defendant?

Relevant prior bad act evidence can be admissible in child sexual abuse prosecutions if it is probative of the evidentiary basis for which it is being offered.[2]  In recent years, “propensity” has been adopted by many jurisdictions as the fundamental basis for admitting collateral acts evidence in child sexual abuse prosecutions.[3]  The manner in which propensity is defined and determined can significantly impact whether such evidence is relevant.  Furthermore, relevant prior bad act evidence is not admissible if its probative value is substantially outweighed by the prejudicial impact it will have upon the jury.[4]  The methodology used to implement this particular balancing analysis can greatly affect its outcome, and thus the admissibility of otherwise relevant collateral act evidence.

Since the early part of the 20th century, legislative bodies and the courts have attempted to develop workable standards and methods of analysis in which to evaluate the admissibility of prior bad act evidence in cases related to child sexual abuse.  Unfortunately, these standards and methods fall short of their intended purpose.  Not only do they promote inconsistencies in application and results, but more importantly, they do not possess a logical relationship to one’s propensity to sexually victimize children.  Without such a relationship, it is virtually impossible to determine the probative value of relevant evidence being offered to establish propensity.

A study concluded in 2001 found that pedophiles average approximately 11.7 separate child victims, with over 70.8 separate acts of molestation.[5]  This tragic data means that the availability of prior bad acts evidence is significant in many child sexual abuse prosecutions.  However, availability does not necessarily equate to admissibility.  Thus, all the more reason to ensure that such critical evidence is carefully and systematically evaluated in an approach that is fair and consistent with its use and purpose.  Such an approach will be the focus of this article.

Section II of this Article examines the history of prior bad act evidence in child sexual abuse cases, and how it has evolved from being admissible for limited purposes, to the more modern trend of propensity evidence.  Section III scrutinizes and critiques the current methodology used to evaluate the probative value of relevant propensity evidence.  Section IV analyzes the work of researchers and psychologists in describing the characteristics and behavioral patterns that are consistent among those who sexually victimize children.  Section IV then utilizes these behavioral patterns to develop particular factors courts should consider when determining the probative value of propensity evidence.  Section V proposes a new rule that incorporates these new factors into the court’s analysis when evaluating prior sexual misconduct propensity evidence under Rule 403.  Finally, Section V applies this proposal to the Christopher Smith case study to demonstrate its relevant and unique applicability to cases involving the sexual victimization of children.

[1].This case study is a work of fiction.  Names, characters, places and incidents either are products of the author’s imagination or are used fictitiously.  Any resemblance to actual events or locales or persons, living or dead, is entirely coincidental.  This case study is copyrighted © 2011 by Basyle J. Tchividjian.  All rights reserved.  No part of this Article may be reproduced in any form by any electronic or mechanical means (including photocopying, recording, or information storage and retrieval) without permission in writing from the author.

[2].See Fed. R. Evid. 401, 402; see also Rademacher v. Berghuis, No. 1:08-cv-871, 2011 U.S. Dist. LEXIS 114484, at *43 (W.D. Mich. Aug. 11, 2011) (“[E]vidence must be relevant to an issue or fact of consequence at trial.”).

[3].See Fed. R. Evid. 414.

[4].See Fed. R. Evid. 403.

[5].Gene G. Abel & Nora Harlow, The Abel and Harlow Child Molestation Prevention Study, in The Stop Child Molestation Book (2001), available at http://www.childmolestationprevention.org/pdfs/study.pdf.  The study distinguished between pedophiles as defined by the DSM-IV and those who molest children that do not fall under the clinical definition of pedophile.  Id.  The study found that non-pedophile child molesters molest on average 2.9 children and commit an average of 6.5 acts of molestation.  Id.

Parsing the Reasonable Person: The Case of Self-Defense

By Andrew Ingram*

Volume 39.3

*The University of Texas School of Law, J.D. expected 2013; also a Ph.D. student in the Department of Philosophy; A.B., 2009, Brown University. I would like to thank Professor Larry Laudan for the enlightening seminar that produced this Note. I am grateful as well to the editors and staff of the American Journal of Criminal Law for their hard work in editing this piece.


Mistakes are a fact of life, and the criminal law is sadly no exception to the rule.  Wrongful convictions are rightfully abhorred, and false acquittals can likewise inspire outrage.  In these cases, we implicitly draw a distinction between a court’s finding and a defendant’s actual guilt or innocence.  These are intuitive concepts, but as this Note aims to show, contemporary use of the reasonable person standard in the law of self-defense muddles them.

The point I aim to make in this Note is subtle, and because it is subtle, I must be careful with the terms I deploy.  What is of concern here is not that disagreement which sometimes occurs between the verdicts of morality and the verdicts of our legal system.  Rather, it is a disagreement between the facts and the decisions of our criminal tribunals.  The law here is the measuring stick by which conduct is judged, and a court may err in applying it in a way demonstrable by an independent observer deploying the same metric.  For example, the court says a person found dead was murdered, but an independent party can prove the court wrong, either by showing that the court’s version of the facts is incorrect (the person died of a heart attack) or that the court has incorrectly applied the legal standard to the facts (mens rea was absent).  The technical terms introduced below furnish a vocabulary for discussing such cases of error.

I will use the terms juridical guilt and juridical innocence to refer to the decisions of tribunals and the words material guilt and material innocence to refer to the actual match, or lack thereof, between law and fact.  A person is juridically guilty if they have been found guilty by the relevant tribunals.  Thus, in American law, someone is juridically guilty of a crime if he has been convicted by a jury, a judge has not chosen to set aside the verdict, and the conviction has been sustained if appealed.  On the other hand, material guilt requires having actually committed the crime in question.  For example, a person is materially guilty of common law burglary if and only if he actually broke into and entered a dwelling at night with the intent to commit a felony.[1]

Analogously, juridical innocence means being found not to have committed a crime or having been tried and acquitted by the relevant tribunals.[2]  In the American context, juridical innocence corresponds to being acquitted by a jury or fact-based dismissals with prejudice by a judge.[3]  In contrast, a person is materially innocent if and only if she did not, in fact, commit the specified crime.  As such, a person is materially innocent of cocaine possession if, instead of cocaine, the substance the police found on her person was actually baking powder.  Notice, however, that material innocence need not be confined to cases where the defendant is manifestly innocent or has a true alibi.  On the contrary, material innocence and guilt track the elements of the crime so that a person who breaks into a dwelling intending to cart away a television is nonetheless materially innocent of common law burglary so long as he did so during the daytime.[4]

Defenses can be treated in the same manner.  A person is juridically guilty if a tribunal rejects his defense and juridically innocent if the tribunal accepts it.[5]  A person is materially innocent if she does in fact satisfy the elements of the defense.  She is materially guilty—with respect to a defense—if she fails in actuality to satisfy all the elements of the defense (though she may yet be materially innocent of the underlying crime).[6]

The Problem

I contend that these categories become confused in the context of criminal self-defense.  The source of this confusion is the reasonable person standard specified in the elements of the defense.  Invocation of the reasonable person—and references to reasonableness more generally—are ubiquitous in common law systems on both the criminal and civil sides of the docket.  Besides the criminal standards for self-defense[7] and provocation,[8] the reasonable person crops up everywhere from civil rights law[9] to contract law.[10]  Not to mention that modern courts could hardly try a tort case without it.[11]  Yet despite her ubiquity, the reasonable person has been notoriously difficult to define.[12]  This element is sometimes the sole issue in a trial, but courts’ explications of “reasonableness,” “ordinary care,” or the “reasonable person” are typically vague or quasi-circular.[13]  In the absence of a clear definition, the question of what the reasonable person would or would not have done threatens to collapse into a question of what the judge or jury will say the reasonable person would have done.[14]  If that happens in the criminal law context, what then is left of the distinction between material guilt and innocence and juridical guilt and innocence?

Before we consider the complications present in self-defense, we should take at a closer look at how the division between juridical and material guilt ordinarily functions.  Consider the elements of murder.  In Texas, it is sufficient to show that the defendant (1) intentionally (2) caused the death of an individual.[15]  Here, it is easy to distinguish between material guilt and juridical guilt.  A person is juridicially guilty of murder if he is convicted by a jury of murder, and someone is materially guilty if she did in fact cause the death of a person and acted with the conscious object to kill a person.  There are two important facts here, one physical and the other psychological.  Both facts are independent of the court’s decision.[16]  Whether or not a court decides that the defendant committed the crime, his material guilt or innocence does not vary.

[1].Taylor v. United States, 495 U.S. 575, 580 n.3 (1990) (defining common-law burglary as “‘the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony.’” (quoting W. LaFave & A. Scott, Substantive Criminal Law § 8.13 (1986))).

[2].I define juridical innocence disjunctively in order to accommodate the fact that a not-guilty verdict is not equivalent to a finding of innocence.  See infra note 3.

[3].Defining juridical innocence in the American context is complicated by the bivalent character of jury verdicts and the stringent burden of proof required for a guilty verdict.  See Larry Laudan, Need Verdicts Come in Pairs?, 14 Int’l J. Evidence & Proof 1, 2–3 (2010) (elucidating the import of a not-guilty verdict under such systems).  Given the rigor of the reasonable doubt standard and the fact that jurors must choose between a finding of guilty and one of not-guilty (there is no “innocent” verdict), a not-guilty verdict should not be conflated with a finding of innocence.  See id. (emphasizing that an acquittal only signifies that the evidence against the defendant fails to satisfy the standard of proof, not that the defendant is innocent of the crime charged).  Nonetheless, to keep the terminology simple, I refer to a jury’s not-guilty verdict as a finding of juridical innocence.

[4].Thus, however blameworthy the thief’s conduct may have been, he is per the common-law definition of burglary, materially innocent of burglary.  Indeed, he may be found guilty by a jury and the verdict sustained at all levels of the legal process, making him juridically guilty, and yet he is, technically speaking, materially innocent.

[5].Complications arise when a tribunal rejects a claimed defense yet still acquits a defendant on other grounds.  What are we to say about such a defendant; is he juridically guilty or juridically innocent?  Though it requires an awkward turn of phrase, I think the greatest clarity can be achieved if we say that a person whose defense is rejected is juridically guilty (with respect to the defense) even if she is ultimately acquitted.

[6].Compare with note 5 supra.

[7].E.g., State v. Stewart, 763 P.2d 572, 579 (Kan. 1988).

[8].E.g., Crawford v. State, 704 S.E.2d 772, 776 (Ga. 2011).

[9].See Mayo Moran, The Reasonable Person: A Conceptual Biography in Comparative Perspective, 14 Lewis & Clark L. Rev. 1233, 1259–60 (2010) (commenting on the reasonable person in the law of workplace sexual harassment).

[10].E.g., Akassy v. William Penn Apartments P’ship, 891 A.2d 291, 299 (D.C. 2006).

[11].See Restatement (Second) of Torts § 283 (1965) (identifying the standard of conduct in negligence cases as the behavior of the reasonable man under like circumstances); Ronald K.L. Collins, Language, History and the Legal Process: A Profile of the “Reasonable Man,8 Rutgers-Cam L.J. 311, 313 (1977) (attributing “the lion’s share of the case law” in torts to the reasonable man).

[12].See infra notes 28–36 and accompanying text.

[13].See, e.g.,Patrick J. Kelley & Laurel A. Wendt, What Judges Tell Juries About Negligence: A Review of Pattern Jury Instructions,77 Chi.-Kent L. Rev. 587, 600 (2002) (“A person is negligent when (he) (she) fails to exercise ordinary care. Ordinary care is the care which a reasonable person would use in similar circumstances.”) (quoting Wis. Jury Instructions-Civ. 1005 (2002)); cf. Edward C. Lyons, Reason’s Freedom and the Dialectic of Ordered Liberty, 55 Clev. St. L. Rev. 157, 203 (2007) (“[J]ury instructions dealing with a negligence cause of action have generally been articulated in the vaguest manner . . . .”).

[14].See infra notes 40–49 and accompanying text.

[15].Tex. Penal Code Ann. § 19.02(b)(2) (West 2011).

[16].I deliberately use the phrase “independent of the court’s judgment” rather than the phrase “non-legal fact” because I do not think that all of the former facts are embraced by the latter category.  There are two types of facts we can think of as being independent of a court’s judgment.  The first type is completely independent of any legal standard, for example, the fact that a substance alleged to be bootleg liquor is actually an ethanol solution.  The second type implicates what common law lawyers are prone to call “mixed questions of law and fact.”  These are not necessarily non-legal facts but are facts independent of the court’s judgment.  Whether or not someone has committed larceny is a prime example because it depends on questions of property ownership.  See Tex. Penal Code Ann. § 31.03(a) (proscribing appropriating property only if one intends to take it from its owner).   Insofar as property is purely a creature of law, deciding whether or not someone owns something requires applying a legal standard. While there are interesting conceptual problems posed by mixed questions, I think the reasonable person question embodies a different problem.  Whereas in a theft case, it is possible to use the legal standard to identify facts sufficient to establish property ownership apart from a court’s judgment, my argument is that the same cannot be said of the reasonable person standard.  The trouble with the reasonable person standard is not that one must first ascertain the legal standard and then apply it to the facts, but that it is not clear what facts the legal standard demands be satisfied.  As such, a court’s decision about the reasonable person becomes the sole criterion.  Unless one is a dogged legal realist, the same cannot be said about property and the standard for larceny.  For an example of the legal realism I have in mind, seeOliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 460–61 (1897) (“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”).

Dormant Data: Why and How to Make Good Use of Deaths in Custody Reporting

By Matt Lloyd*

Volume 39.2

*  J.D. Candidate, The University of Texas School of Law, 2012; B.S. 2009, Kansas State University. I would like to thank Professor Michele Deitch for her guidance in developing this Note and the editorial staff at the American Journal of Criminal Law for all their patience and hard work. I would also like to thank my wife Kelly for her constant support and for being one of the greatest people I know.


From 2001 to 2006, roughly 3,000 individuals died each year while in the custody of state prison facilities across the United States. Another 1,000 died in locally run jails.  Many of these roughly 4,000 annual deaths are inevitable, but many are also preventable.  The latter category (i.e., preventable deaths) should never be viewed as an acceptable statistic.  The United States federal and state governments are, through their own criminal justice policies, responsible for who gets placed in custody and for how long.  They are also ultimately responsible for the conditions of such confinement.  Consequently, governments are obliged to meet the needs of individuals they place behind bars, and preventable deaths represent a categorical failure to meet that obligation.

Although courts have explicitly recognized this burden, they have promulgated a counterproductive standard for enforcing it.  By requiring a subjective showing of “deliberate indifference” to the plight of prisoners on the part of officials, courts have encouraged prison and jail officials to be ignorant of any systemic issues that have not become catastrophic.  There is no single solution to this conundrum, but significant progress can be made with a relatively simple step.  Deaths in custody (“DIC”) information can be used to encourage transparency and accountability in a system that currently lacks it.  This is information that we already have, and it can be used to assess and address major problems (on the national, state, and local scale) before they become catastrophic.  If DIC data is analyzed and findings are submitted to the relevant officials, willful ignorance becomes much less viable as a defense.  But more importantly than that, using DIC data in this way espouses a more constructive criminal justice policy—that justice officials should look towards affirmatively meeting their obligation to care for those in its custody, rather than doing just enough to avoid civil liability to inmates.

In Part II of this Note, I begin by discussing the current “deliberate indifference” standard that governs whether detainees’ conditions of confinement constitute cruel and unusual punishment.  This discussion will include the United States Supreme Court’s reasoning behind the standard, as well as the problems that having such a standard create.  Next, in Part III, I examine the current requirements governing the reporting of deaths in custody at both the federal and state levels.  In Part IV, I discuss realistic options concerning how DIC data may be used to have an immediate positive impact on our federal and state detention facilities, and how this impact may undo much of the danger associated with the United States Supreme Court’s “deliberate indifference” standard. Finally, I provide a few illustrations using currently existing DIC data in Part V. 

The Decision Zone: The New Stage of Interrogation Created by Berghuis v. Thompkins

By Meghan Morris*

Volume 39.2

* J.D., 2011, New York University School of Law; B.A., 2008, University of North Carolina at Chapel Hill.  Many thanks to Professor Erin Murphy for her invaluable suggestions and critiques in the drafting process.  I am also deeply grateful to Laura Arandes for her encouragement and advice.  For my continuing education in the practice of criminal law and procedure, I am indebted to my friends and colleagues at the Colorado State Public Defender. I have also benefited greatly over the past couple of years from the guidance and advice of Cassy Stubbs, Betsy Tao, Bryan Stevenson, Randy Susskind, and Anthony Amsterdam. Finally, thanks are due to Scott Spillman and to my family for their unwavering support.


This Article addresses a new stage of interrogation, approved of for the first time in the Supreme Court’s 2010 decision, Berghuis v. Thompkins. This stage—the “decision zone”—is the period, however brief or prolonged, after officers have read a suspect his rights but before the suspect has decided whether to waive or to invoke those rights.  In Thompkins, the Supreme Court allowed interrogation during this stage, which lasted almost three hours in that case.  In Thompkins, the Supreme Court implicitly assented to prolonged interrogation before a suspect decides whether to invoke or to waive his rights, thus creating the decision zone.

This Article argues that existing precedents regarding trickery in interrogations address police behaviors only before a suspect is read his rights or after he has waived his rights and agreed to talk to police.  These precedents do not directly address trickery in the decision zone.  Such precedents are, in fact, overbroad when applied to interrogation in the decision zone because this interim period is the crucial time in which a suspect is deciding whether or not to waive his rights.  Courts must look at the constitutionality of police trickery during this period as a new question not controlled by existing precedents.

Under Maryland v. Seibert, police officers may not intentionally undermine the effectiveness of Miranda warnings.  This Article argues thattrickery in the decision zone may be barred by Seibert and other precedents in certain instances.  This Article proposes a two-factor test for deciding when trickery in the decision zone should be found unconstitutional.  First, a court must ask whether a given police practice has the intent and effect of undermining Miranda warnings.  Second, the court must ask whether the police practice has a tendency to produce false confessions.  These factors, rather than existing precedents regarding trickery in interrogations, should control the new constitutional inquiry into police behavior within the decision zone.

One-Book, Two Sentences: Ex Post Facto Considerations of the One-Book Rule After United States v. Kumar

By Andrew C. Adams*

Volume 39.2

* J.D. 2008, University of Michigan Law School; B.A. 2004, University of Texas at Austin.  Associate at Debevoise & Plimpton LLP and a member of the firm’s litigation department.  The views expressed herein are those of the author and do not express those of Debevoise & Plimpton LLP.  Sincere thanks to Morgan Adams, Derek Ettinger, Sean Hecker, Benedict Schweigert, Leigh Wasserstrom, and the editors at the American Journal of Criminal Law for their thorough and thoughtful comments on earlier drafts of this article.


This article addresses the ongoing discord among the federal courts of appeals with respect to the implications of the U.S. Sentencing Guidelines’ “one-book rule” and its constitutionality under the Ex Post Facto Clause.  A recent decision by the Second Circuit, United States v. Kumar, produced the most extreme position in a three-way split among the circuits by holding that the application of a single Guidelines manual to multiple offenses—even offenses predating that manual’s publication—is always permissible under the Ex Post Facto Clause.  The issue brings together two separate and difficult areas of jurisprudence applying the Ex Post Facto Clause: the permissibility of allowing one crime to “trigger” heightened punishments for previous crimes and the ongoing circuit split over the application of the Ex Post Facto Clause to the Sentencing Guidelines. This Article explores the history of the application of the Ex Post Facto Clause in order to establish that, contrary to the assertions of courts and commentators, the single concern of the Ex Post Facto Clause has been putting people on notice of the consequences of their actions.  The Article then argues that Kumar, though an outlier amongst the circuits, was indeed correct in its constitutional analysis of the one-book rule.  Nevertheless, the same constitutional concepts at work in Kumar ultimately imply that the one-book rule runs counter to the goals of the Sentencing Guidelines themselves—uniformity of sentencing—even if its application is ultimately constitutional.  The Article concludes by advancing two potential resolutions to the problems left unresolved by Kumar, the courts of appeals, and the Sentencing Guidelines themselves.

Objectifying and Identifying in the Theory of Excuse

By Anders Kaye*

Volume 39.2

*Associate Professor, Thomas Jefferson School of Law.


As fundamentally social creatures, healthy and normal human persons have a deep and well-developed capacity for identification with other persons.  We are susceptible to such identification when we see others as similar to ourselves, and especially when we have extensive, particularized knowledge about such other persons.  In this Article, I argue that identification plays an important role in our excusing practices.

To date, the leading naturalist and psychological accounts of excuse have made no room for identification.  Instead, they follow an influential naturalist account (“the objectification account”) in which all our excuses are explained by reference to either our “reactive attitudes” or the “objective attitude.”  In this Article, I offer an alternative naturalist account of excuse that makes room for identification; I describe identification and parse it into component judgments and attitudes; I show how these component parts are conducive to excusing and how they drive some of our most important excuses; and I explain how identification can help us understand a long-standing mystery in excuse law (tout comprendre, c’est tout pardonner).  Finally, I suggest that identification helps us understand why certain long-standing controversies in excuse theory persist, including debates about rotten background excuses and about the significance of causation and determinism for excuse.

Having laid out the identification account, this Article also shows that identification has important ramifications for excuse theory.  First, where the conventional objectification account makes excusing a disreputable practice, the identification account shows that excusing is connected to our social and imaginative capacities, and thus to some of the best parts of our psychology.  Taking identification into account, then, should make us more receptive to innovation in and expansion of the criminal law excuses.  Second, where the objectification account resists excuses rooted in formative character influences, the identification account is open to such excuses.  And, third, where the objectification account denies the possibility of causal excuses, the identification account offers reasons to think such excuses are plausible.  These are deep and important differences between the two accounts, differences that do not emerge clearly until we have a systematic account of identification in mind.

In the end, the identification account gives us a naturalist account of the excuses with which we can identify.  Where the objectification account yokes excuse to a weird and detached psychological outlier (the objective attitude), the identification account connects excuse to a central and valued feature of our social psychology.  In this way, it gives us a picture of the excuses that feels natural, intuitive, and connected to what we value most in ourselves, and it helps us understand why we persist in the practice of excusing.

Qualified Support: Death Qualification, Equal Protection, and Race

By Alec T. Swafford*

Volume 39.1

* J.D. Candidate, The University of Texas School of Law, 2012; B.A., 2009, Rice University.  Law Clerk to the Honorable Phyllis Kravitch, United States Court of Appeals for the Eleventh Circuit, 2012–2013 term.  The author would like to thank Professor Cary Franklin for her advice, guidance, and critiques.  Also, the author would like to thank Clinical Professors Rob Owen, Maurie Levin, and Jim Marcus for being constant sources of inspiration in their representation of inmates on Texas’s death row.


The trial of Mumia Abu-Jamal, an African-American, for murder demonstrates how pernicious death qualification can be for minority prospective jurors.  In Philadelphia, which at that time had a population that was forty-four percent African-American, the prosecutor was successful in striking twenty African-Americans from the venire using death qualification. The prosecutor then used his peremptory challenges to strike another eleven African-American prospective jurors who had not expressed any opposition to the death penalty, resulting in a jury that did not have any African-American members. Prosecutors in general have been known to utilize the death qualification process to produce a jury they believe is more favorable to the state.

Death qualification has been described as an ethnic cleansing of the jury pool in capital cases due to its disproportionate effect on minority populations. Jurors must be “death qualified” in order to sit on a capital jury. During death qualification, prospective jurors are questioned concerning their attitudes on the death penalty. Prospective jurors may not be challenged for cause based on their views on capital punishment unless those views would prevent or substantially impair the performance of their duties as jurors in accordance with their instructions and their oath.

Death qualification has a significant racial dimension.  Much of the academic literature and litigation concerning death qualification has focused on its tendency to create juries that are more “guilt prone.” The racial effects of death qualification are just as dangerous.  I will argue that death qualification should be ruled unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.  I will also argue that the Equal Protection Clause, as interpreted in Batson v. Kentucky, could be applied to racially discriminatory applications of death qualification in particular trials.

In Part II, I will show how current Supreme Court jurisprudence on death qualification has created a system that accords too much discretion to the actors at the trial level, allowing room for racial discrimination to flourish.  In Part III, I will explore the historical and sociological evidence behind the public support of capital punishment and the opposition to it.  Support for capital punishment, which is directly related to the likelihood that a juror will be struck for cause under death qualification, continues to be heavily influenced by general racial attitudes and by past and present racism in the implementation of capital punishment.  I will then explore the damaging effects death qualification has on the criminal justice system in Part IV.  In Part V, I will discuss the most important challenge to death qualification to date, Lockhart v. McCree. Finally, in Part VI, I will apply Equal Protection analysis to death qualification.

Providing Immigration Advice During Criminal Proceedings: Preempting Ineffective Assistance of Counsel Claims When Non-Citizen Aliens Seek to Withdraw Guilty Pleas to Avoid Adverse Immigration Consequences

By Maryellen Meymarian*

Volume 39.1

*J.D., C.P.P., Adjunct Professor, George Mason University; former Associate Legal Advisor and Assistant Chief Counsel for the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE) and former Assistant District Attorney for the New York County District Attorney’s Office.


Criminal aliens have long been deported from the United States.  In the past decade, U.S. Immigration and Customs Enforcement (ICE) has stepped up efforts to identify, detain, and remove criminal aliens incarcerated across all jurisdictions. The possible immigration consequences of criminal actions are now at the forefront of many criminal pleas.  The Supreme Court’s recent decision in Padilla v. Kentucky now mandates that defense counsel inform non-citizen alien clients whether a possible criminal plea carries a risk of deportation.  The complexities of the Immigration and Nationality Act (INA) only add to the difficulties faced by defense attorneys when providing advice to non-citizen aliens concerning pleading to criminal dispositions.  Failure to provide competent and accurate advice concerning potential deportation consequences now clearly constitutes a Sixth Amendment violation.  This Article examines how an alien’s residence status may be altered by a criminal plea; how all parties in the criminal justice system need to understand the potential immigration consequences of a given plea; and steps that should be taken to preempt future attempts to withdraw convictions based on a failure to inform an alien of potential immigration consequences.