Legal Theory Commons^™

The Role Of Eyewitness Confidence And Prosecution/Defense Presentation In How Facial Composites Shape Juror Decision-Making, Rebecca E. Singh

Student Theses

Eyewitness testimony has been found to be an unreliable form of evidence (Loftus, Miller & Burns, 1978; Oswald & Coleman, 2007; Wells & Hasel, 2007; Loftus & Greenspan, 2017; Jaross, 2018; Wade, Nash, & Lindsay, 2018; Wixted, Mickes, & Fisher, 2018). Yet, this evidence is still used in the courts today, and, in fact, is perceived by jurors as important and compelling in comparison to other case factors (e.g., character evidence, physical evidence; Topp-Manriquez, McQuiston, & Malpass, 2014; Kabzińska, 2015). Additionally, eyewitnesses are sometimes requested to help create a facial composite of the suspect and, critically, these composites are then …

Does The Decriminalization Of Prostitution Reduce Rape And Sexually Transmitted Disease? A Review Of Cunningham And Shah Findings, Lily Lachapelle, Clare Schneider, Melanie Shapiro, Donna M. Hughes

Dignity: A Journal of Analysis of Exploitation and Violence

In 2013, research findings by Cunningham and Shah claimed that rape and sexually transmitted diseases were reduced by decriminalized prostitution in Rhode Island. The original unpublished claims have received wide media coverage which have gone unexamined. This review finds errors in their analyses. One error is the date when prostitution was decriminalized in Rhode Island. Cunningham and Shah claim that prostitution was decriminalized in 2003. Our analysis finds the date of decriminalization of prostitution was 1980. The change in the start date of decriminalization significantly alters the analysis and the findings. Another error results from Cunningham and Shah using an …

Anger From Within: The Role Of Emotions In Disengagement From Violent Extremism, Pete Simi, Steven Windisch, Daniel Harris, Gina Ligon

Qualitative Criminology (QC)

"There is growing recognition about the similarities between generic criminality and violent extremism. Using data derived from a unique set of in-depth life history interviews with 40 former U.S. white supremacists, as well as previous studies of criminal desistance, we examine the emotional valence that characterizes actors' descriptions of the disengagement process. More specifically, results suggest that negative emotions (i.e., anger and frustration) directed toward the extremist group and oneself function as a catalyst for disengagement. Negative emotions become a source of motivation in re-evaluating the relative importance of the group as it relates to the individual. Ultimately, the reevaluation …

Definitions Favorable To Terrorism? Sssl And Radicalization: A Case Study Approach, Jennifer Varriale Carson, Patrick Andres James

Qualitative Criminology (QC)

"Although social structure and social learning (SSSL) theory has oft been proposed as a general theory of crime, it has rarely been applied to that which qualifies as ideologically-motivated. We seek to rectify this notable gap in the research by examining the suitability of an SSSL framework to radicalization; an understudied, yet vital process to enacting evidence-based counterterrorism efforts. Utilizing a “most likely” case study approach, we find several themes consistent with SSSL principles, primarily within its social learning constructs. We conclude that SSSL does indeed offer promise for explaining all forms of crime including acts of terrorism."

Introduction To The Special Issue On Terrorism, Thomas J. Holt

Qualitative Criminology (QC)

"As noted by several scholars, there has been a massive growth in research related to terror and extremism in the wake of the 9/11 attacks in the United States. Federal agencies have invested millions of dollars in funding to understand violent extremism, particularly through the use of quantitative assessments of behavior. As a result, there are several widely recognized databases of terror and extremist violence against targets in the US and abroad."

The Emergence Of Violent Narratives In The Life-Course Trajectories Of Online Forum Participants, Philippa Levey, Martin Bouchard

Qualitative Criminology (QC)

"Online discussion forums have been identified as an online social milieu that may facilitate the radicalization process, or the development of violent narratives for a minority of participants, notably youth. Yet, very little is known on the nature of the conversations youth have online, the emotions they convey, and whether or how the sentiments expressed in online narratives may change over time. Using Life Course Theory (LCT) and General Strain Theory (GST) as theoretical guidance, this article seeks to address the development of negative emotions in an online context, specifically whether certain turning points (such as entry into adulthood) are …

A Mixed Method Examination Of Law Enforcement Investigatory Strategies Used In Jihadi And Far-Right Foiled Terrorist Plots Before And After 9/11, Brent R. Klein, Jeff Gruenewald, Steven M. Chermak, Joshua D. Freilich

Qualitative Criminology (QC)

"Empirical research on the law enforcement strategies used to prevent terrorism has increased since the September 11, 2001 terrorist attacks. Yet, few studies have examined how these preventative approaches vary based on terrorists’ ideological affiliations and across time. This study thus explores the similarities and differences in law enforcement investigatory strategies used to thwart global jihadi and farright terrorist violence prior to and since the 9/11 terrorism events. Employing a convergent parallel mixed method research design, our study analyzes both quantitative and qualitative data on 86 terrorism enterprise investigations from the U.S. Extremist Crime Database (ECDB). The quantitative data analyses …

The Policing Of Prosecutors: More Lessons From Administrative Law?, Aaron L. Nielson

Dickinson Law Review (2017-Present)

On a daily basis, prosecutors decide whether and how to charge individuals for alleged criminal conduct. Although many prosecutors avoid abusing this authority, prosecutors’ discretionary decisions might result in biased enforcement, inappropriate leveraging of authority, and a lack of transparency. These problems also arise when agency enforcement officials decide whether to act on conduct that violates a legal prohibition.

An inherent tension between the desire to avoid overburdening the system and the need to prevent inconsistent decision-making exists in the exercises of both prosecutorial discretion and regulatory enforcement discretion. It is clear from the similarities between the two that administrative …

Between Brady Discretion And Brady Misconduct, Bennett L. Gershman

Dickinson Law Review (2017-Present)

The Supreme Court’s decision in Brady v. Maryland presented prosecutors with new professional challenges. In Brady, the Supreme Court held that the prosecution must provide the defense with any evidence in its possession that could be exculpatory. If the prosecution fails to timely turn over evidence that materially undermines the defendant’s guilt, a reviewing court must grant the defendant a new trial. While determining whether evidence materially undermines a defendant’s guilt may seem like a simple assessment, the real-life application of such a determination can be complicated. The prosecution’s disclosure determination can be complicated under the Brady paradigm because …

Meaning-Making Through Narrative: Extending Narrative Analysis For Criminological Examination Of Documentary Film, Charissa Crépault Weir

Qualitative Criminology (QC)

"In this paper, I demonstrate how an understanding of narrative and the tools of narrative analysis can help criminologists unpack the techniques of meaning-making employed in media representations, including documentary films about imprisonment. Since media help to shape, though do not determine, public perceptions of crime and criminal justice, it is useful for criminologists to examine not just media content (i.e. what is said), but also how media constructions advance arguments that are presented as self-evidently true. Narrative structure offers one way for journalists to organize content in a persuasive and emotionally appealing manner and to embed arguments and interpretations …

The Social Camouflage And Everyday Masks Of The Constyle Serial Rapist: A Sociological Analysis Of Newspaper Accounts, Clara Fesmire, Thomas Vander Ven, Lauren Wright

Qualitative Criminology (QC)

"Research suggests that serial rapists use more sophisticated techniques and possess more specialized awareness than average single-victim offenders (Park, Schlesinger, Pinizzotto & Davis, 2008). Although there is a substantial body of literature on the attack styles of offenders, data and theoretical models on the interactional styles and performance rituals of serial rapists are relatively scarce. The current study uses a qualitative analysis of major American newspaper accounts to discuss the behavioral patterns and performance styles of the con-style serial rapist as depicted by crime reporters. The con rapist uses deceptive persuasion and everyday disguises ( e.g., posing as a police …

Harlem Pimps' Accounts Of Their Economic Pathways And Feelings Of Insiderness And Outsiderness, Amber Horning, Christopher Thomas, Sara Jordeno

Qualitative Criminology (QC)

"This study analyzes semi-structured interviews with 85 pimps in New York City to explore how pimps discuss their economic pathways - i.e., how their pimping leads to distinct types of work outcomes and how they discuss their associated feelings and attitudes. We compare younger (18-23) to older (24-67) pimps, anticipating that younger participants would be more adaptive and produce discourse less entrenched in outsider thinking. Pimps' movements between licit and illicit work worlds mirror those of drifters (Matza, 1964) and align with Murphy and Robinson's (2008) concept of maximizers (i.e., economically benefiting from both work worlds simultaneously). Younger pimps, despite …

Jeff Ferrell, Drift: Illicit Mobility And Uncertain Knowledge, Travis Milburn

Qualitative Criminology (QC)

"Today, one does not have to look hard for examples of populations in flux. From war refugees abandoning familiar lands for safety to migratory workers in search of economic opportunities, drift is not only a defining feature of the contemporary world, but it is indeed a global phenomenon. In Jeff Ferrell's Drift: Illicit Mobility and Uncertain Knowledge, we see drift in action in North America and experience the history of hoboing through a cultural, social, and political narrative. While there are many readily accessible examples of the phenomenon of drift in the world, this book shows that drift is …

Ethnic Police Humor As Ethnic Boundary-Making In The Swedish Police Force, Sara Uhnoo

Qualitative Criminology (QC)

"All professions display their own specific humor shaped by the occupational culture, type of work, and working conditions defining them. In this article, the role of ethnic jokes and banter in police humor, including their functions and consequences, are investigated drawing upon interviews with Swedish police employees from an ethnic minority background. A typology is developed containing six distinct types of ethnic police humor. Based on it, some of the ways in which ethnic boundary-making occurs and operates within the Swedish police force are analyzed. The consequences of ethnic humor for police work both internally within the police organization and …

Hearing On The Deaf Penalty: The Intersection Of Deafness And Criminal Justice, Kabrianna Tamura, Elaine Gunnison

Qualitative Criminology (QC)

"The Deaf population in America's criminal justice system is far under-acknowledged, researched, and accommodated. Each year, gross negligence toward Deaf individuals results in exponentially costly lawsuits regarding violations of their constitutional and Americans with Disabilities Act (ADA) rights. The purpose of this study is to empirically identify the current deficits experienced by the Deaf within the criminal justice system through 18 qualitative interviews with two sub-populations: Deaf individuals who have directly interacted with the criminal justice system and professionals who witness the interaction of the Deaf within the criminal justice system. Results from the qualitative investigation revealed that the top …

Harmless Constitutional Error: How A Minor Doctrine Meant To Improve Judicial Efficiency Is Eroding America's Founding Ideals, Ross C. Reggio

CMC Senior Theses

The United States Constitution had been in existence for almost two hundred years before the Supreme Court decided that some violations of constitutional rights may be too insignificant to warrant remedial action. Known as "harmless error," this statutory doctrine allows a court to affirm a conviction when a mere technicality or minor defect did not affect the defendant's substantial rights. The doctrine aims to promote judicial efficiency and judgment finality. The Court first applied harmless error to constitutional violations by shifting the statutory test away from the error's effect on substantial rights to its impact on the jury's verdict. Over …

The Puzzle Of Inciting Suicide, Guyora Binder, Luis E. Chiesa

Journal Articles

In 2017, a Massachusetts court convicted Michelle Carter of manslaughter for encouraging the suicide of Conrad Roy by text message, but imposed a sentence of only 15 months. The conviction was unprecedented in imposing homicide liability for verbal encouragement of apparently voluntary suicide. Yet if Carter killed, her purpose that Roy die arguably merited liability for murder and a much longer sentence. This Article argues that our ambivalence about whether and how much to punish Carter reflects suicide’s dual character as both a harm to be prevented and a choice to be respected. As such, the Carter case requires us …

Exited Prostitution Survivor Policy Platform, Marian Hatcher, Alisa L. Bernard, Allison Franklin, Audrey Morrissey, Beth Jacobs, Cherie Jimenez, Kathi Hardy, Marlene Carson, Nikki Bell, Rebecca Bender, Rebekah Charleston, Shamere Mckenzie, Vednita Carter

Dignity: A Journal of Analysis of Exploitation and Violence

Survivors of prostitution propose a policy reform platform including three main pillars of priority: criminal justice reforms, fair employment, and standards of care. The sexual exploitation of prostituted individuals has lasting effects which can carry over into many aspects of life. In order to remedy these effects and give survivors the opportunity to live a full and free life, we must use a survivor-centered approach to each of these pillars to create change. First, reform is necessary in the criminal justice system to recognize survivors as victims of crime and not perpetrators, while holding those who exploited them fully responsible. …

Mens Rea In Comparative Perspective, Luis E. Chiesa

Journal Articles

This Essay compares and contrasts the American and civilian approaches to mens rea. The comparative analysis generates two important insights. First, it is preferable to have multiple forms of culpability than to have only two. Common law bipartite distinctions such as general and specific intent fail to fully make sense of our moral intuitions. The same goes for the civilian distinction between dolus (intent) and culpa (negligence). Second, attitudinal mental states should matter for criminalization and grading decisions. Nevertheless, adding attitudinal mental states to our already complicated mens rea framework may end up confusing juries instead of helping them. …

Revisiting A Classic: A Qualitative Analysis Of Differential Opportunity Theory And Its Utility In Explaining Residential Burglary, John A. Shjarback

Qualitative Criminology (QC)

"Cloward and Ohlin’s (1960) differential opportunity theory made several significant contributions to criminology, including the emphasis on illegitimate means and the idea that social structure influences criminal opportunity. The problem, however, is that the field largely misinterpreted Cloward and Ohlin’s intent as a simple variation of strain theory instead of a critical refinement of the existing perspective. Generally, the theory has not received much scholarly attention in terms of testing of its key propositions. Using semi-structured personal interviews with 105 active residential burglars in St. Louis, Missouri during 1989- 1990, the current study uses qualitative measures to analyze differential opportunity …

Interviewing Cybercrime Offenders, Alice Hutchings, Thomas J. Holt

Qualitative Criminology (QC)

"Research on cybercrime offending and victimization has increased dramatically over the past two decades, though qualitative scholarship on more technical offenses such as computer misuse has not kept pace with this broader trend. This research aims to identify potential best practices for researchers considering qualitative interviews as a method for researching computer misuse offenses, more commonly involving hacking techniques. The authors interviewed six experienced researchers who conducted qualitative examinations of active or incarcerated cybercriminals to understand their common experiences with recruitment, ways in which they interviewed research participants, ethical issues, and publishing their research. This analysis explores the difficulties associated …

The Life Course Of Female Homicide Offenders: The Context Of Turning Points, Alesa Liles

Qualitative Criminology (QC)

"Although research on female offending has grown in the past few decades, the criminal justice system has remained inadequate in addressing the needs of women. Available research shows some experiences play a significant role in the lives of women that differ from men. To elaborate, this study sought to incorporate life course perspective and the individual’s perspective to show that context is fundamental to life course research. This study identified life events and turning points specific to female homicide offenders and validated the necessary incorporation of perception and attribution to future research with life course perspective."

Culture, Socialization, And Firearms Violence In The United States, Jennifer L. Lanterman, Sarah J. Blithe

Qualitative Criminology (QC)

"Firearm violence persists in the United States despite innumerable social, political, and economic changes throughout the 20th and early 21st centuries. Collaborative Event Ethnography was used at seven gun shows in three regions of the United States to explore childhood socialization into firearm culture via intergenerational communication of values and views regarding violence, safety, and the use of firearms. Children were observed at all gun shows engaged in activities ranging from standard play to potentially dangerous activity in an environment characterized by bias and controversy. The findings support social learning theory and provide some insight into the role of culture …

Preliminary Investigation Of Pharmaceutical Counterfeiters In The United States, Jay P. Kennedy, Ksenia Petlakh, Jeremy M. Wilson

Qualitative Criminology (QC)

Pharmaceutical counterfeiting is one of the most pressing public health concerns in the United States and abroad, and recently an increasing amount of scholarly attention has been given to this issue. However, the extant literature lacks a systematic investigation of the specific roles undertaken within pharmaceutical counterfeiting schemes. We attempt to address this knowledge gap through an analysis of individuals convicted in federal court of counterfeiting offenses related to U.S.-based pharmaceutical counterfeiting incidents. From our investigation we identified six distinct roles that can classify an individual’s involvement in a pharmaceutical counterfeiting scheme: Key/Lead, Supporting, Sales/Distribution to Legitimate Others, Sales/Distribution to …

Cons, Constructions And Misconceptions Of Computer Related Crime: From A Digital Syntax To A Social Semantics, M. R. Mcguire

Qualitative Criminology (QC)

"Has the framing of computer crime been a process which has, in effect, left us all framed? What is it that we think that we understand when we use terms like “internet crime,” “cybercrime,” or “technocrime,” and in what sense does this understanding constitute knowledge? In particular, the kind of knowledge which can be defined as “social scientific?” In this paper, I apply one of the key distinctions used to define computational processes – that made between a syntax and a semantics – to illustrate some of the problems that have affected our thinking about cybercrime and undermined our responses …

Technocrime At The Margins: Introduction To The Special Issue On Critical Or Marginal Perspectives And Issues In The Study Of Technocrime, Kevin F. Steinmetz

Qualitative Criminology (QC)

"When first asked to guest edit a special issue of the Journal of Qualitative Criminal Justice and Criminology, I admit that I was hesitant. I knew from helping Willard Oliver start this journal and from working as its first book review editor that editorship can be trying—and often underappreciated— work. Tom Holt, the editor of the journal at the time, however, was ambitious and willing to take some risks in his mission to carry the journal forward. As such, he offered me tremendous latitude and support for pursuing my unique vision for a special issue on technocrime issues from …

The Cyborgian Deviant: An Assessment Of The Hacker Through The Lens Of Actor-Network Theory, Wytske Van Der Wagen

Qualitative Criminology (QC)

"When we think of technocrime, it is immediately “the hacker” who comes to mind, a somewhat mystical figure who can do seemingly magical as well as malicious things with technology. Throughout history, various scholars, including criminologists, have sought to grasp the hacker phenomenon so as to unravel hackers’ techno-culture, identity, and mentality. The current study is one of them, yet it does so from a novel, less anthropocentric angle. Drawing on the cyborg-lens of actor-network theory, which considers the human and the technical as nonseparable, this study conceives the hacker as a “cyborgian deviant:” a transgressive blend of human and …

The Use Of Mythic Narratives In Presidential Rhetoric On Cybercrime, Joshua B. Hill, Nancy E. Marion

Qualitative Criminology (QC)

"What politicians say about crime matters, both because of the impact their rhetoric has on public opinion and the policies and motives those words often portend. This is no different when presidents speak about the relatively new area of technocrime. As with other types of crime, political rhetoric on technocrime relies on previous social constructions of the problem, which are (in part) based on myths rooted in popular culture. These myths can be used to help forward political agendas in ways that may be useful to the politician, but that do not address the causes or effects of technocrime. Using …

Seductive Events: A Critical Examination Of Youth Sexting, Karen Holt

Qualitative Criminology (QC)

"The social impact of technologies is evident among both teenagers and young people. Youth now experience and engage in most aspects of daily life “online” through the use of social media, mobile phones, and the Internet. This has led to a host of concerns, from parents, educators, advocates, and law enforcement regarding the ways in which this technology is being used, with the debate focused primarily on the issue of “sexting” or sharing of naked and semi-naked selfies. This paper explores sexting behavior from a critical perspective, examining the individual and institutional narratives that continue to shape and influence opinion …

Coping With Cybercrime Victimization: An Exploratory Study Into Impact And Change, Jurjen Jansen, Rutger Leukfeldt

Qualitative Criminology (QC)

"An increasing number of Internet users are dealing with cybercrime victimization. In order to find out whether victims adequately recover from cybercrime incidents, it is important to gain insight into its effects and impact on users. However, as it stands now, there is not much literature on the impact of cybercrime. We address this gap by qualitatively examining the impact of two types of cybercrime, namely phishing and malware attacks targeting online banking customers. We used the coping approach as a framework to study how victims deal with the negative events they have experienced. In order to study the impact …