Concurring Opinions » Jennifer Collins

The Craigslist killer and your crim pro exam

Jennifer Collins — Mon, 11 May 2009 14:22:06 +0000

I can tell that I am deep in exam grading because when I read news updates about the Craigslist killer, instead of pondering questions like whether his girlfriend will continue to stand by him, I am focusing on all the great questions that can come out of the case for use on a crim pro exam next year. Consider the question of joinder, for example, an incredibly important issue in real-world criminal practice but a topic that, in my experience, receives relatively little attention in a typical crim pro course. Can the two Massachusetts crimes, the robbery and the robbery/murder, be joined together in a single trial? The relevant portion of Federal Rule of Criminal Procedure 8(a) allows the government to charge multiple offenses together in a single indictment if they are “of the same or similar character.” Does finding your victims through the same online resource constitute enough of a similarity to make this a true signature crime? Would the evidence of the murder be so prejudicial if the robbery case were tried alone that a judge should order severance under FRCP 14? There should be some very interesting pre-trial motions when — and if — the case ultimately makes it to that stage.

The physical plant of a law school

Jennifer Collins — Thu, 07 May 2009 17:57:57 +0000

For a number of reasons, my law school is currently considering whether any revisions should be made to our building, which leads me to the following question. Does your law school building have a communal gathering space where professors and students can easily mingle? A lounge, a cafeteria, or a coffee shop, for example? If your building does have such a space, do students and professors take advantage of it, and do you find that it advances your educational mission? When I think about my dream building revisions, the addition of a space that could foster more informal interactions than what often take place in a professor’s office is near the top of my list. I am wondering if that instinct is correct, and if so, what kind of space might be the most beneficial.

Privilege or Punish: Criminal Justice and the Challenge of Family Ties

Jennifer Collins — Tue, 28 Apr 2009 19:00:54 +0000

I am really happy to announce that my book with Dan Markel and Ethan Leib, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, is now officially out and available at Amazon and at Oxford University Press’s website. If you are interested in obtaining a copy at a discount from the quite high cover price (the high price of law books is a topic for a blog post in itself!), check out Dan’s post on Prawfs about the book for some suggestions.

In related news, there will be a roundtable on the book at Law and Society in May featuring Melissa Murray, Alice Ristroph, Don Braman, Tommy Crocker, and Naomi Cahn. Additionally, there will be another panel at SEALS in August. Last, there will be a Feature on the book in the Yale Law Journal sometime next year, which will include a handful of essays from a number of folks, as well as a piece by us, tentatively titled, Rethinking Criminal Justice and Family Status. We will have more info on these panels and discussions in the coming weeks. There are many people who helped make this book possible, and we are profoundly grateful for their assistance and encouragement. I also want to give a shout-out to my wonderful co-authors Dan and Ethan — working with them on this project has truly been an amazing experience (indeed, the benefits of co-authoring can be the subject for yet another blog post!)

Open book or closed book?

Jennifer Collins — Mon, 27 Apr 2009 15:28:18 +0000

My students are taking my crim pro exam as I type, so exams are very much on my mind this morning. One issue I have continually wrestled with over the years is whether to make my exams closed book or open book. I have always made them open book, with one caveat — students cannot bring in commercial study aids or outlines. My theory is that life and law practice are “open book” — how many practicing lawyers have committed the Federal Rules of Criminal Procedure to memory, for example? But is that really accurate? In the middle of a suppression motion, you obviously cannot ask the judge to hold on so you can consult your crim pro casebook (althought you might be able to ask for some time to formulate a thorough response). I also wonder, to be candid, if making exams closed book would spread the grades more. I would love to hear what other folks’ thoughts are on the issue.

Is Eight Enough?

Jennifer Collins — Thu, 16 Apr 2009 20:26:48 +0000

It is wonderful to be back on Concurring Opinions and I want to thank Dan for graciously inviting me to return. I want to start off my guest stint by mentioning a family law piece that I am currently working on. Naomi Cahn and I have a forthcoming essay in the Northwestern Colloquy, which we plan to follow up with a longer article, about some of the legal and ethical issues raised by the recent birth of octuplets in California. Although large families have traditionally been celebrated in our culture — consider the recent success of the cable show “Jon & Kate Plus Eight,” as well as those old pop culture standbys “The Brady Bunch” and “Cheaper by the Dozen” — the reactions to the Suleman case have been very different, with everyone from doctors to bloggers to her own parents deeming the births “a medical catastrophe” and “absolutely irresponsible.” Two states — Georgia and Missouri — have already introduced legislation in response to the births. In the essay, Naomi and I argue that restrictions on the number of embyros that can be transferred in any single IVF procedure are justifiable, as long as we couple that effort with increased insurance coverage and some potential for flexibility in an individual case. But we also argue that increased restrictions on access to fertility treatment cannot be justified. We therefore diverge from those commentators who argue that we should consider things like marital status, existing family size or financial resources in deciding which individuals may receive fertility treatment. Because this project is still very much a work in progress, we would welcome any comments or feedback.

The path to academia — is practical experience disqualifying?

Jennifer Collins — Fri, 26 Oct 2007 15:49:55 +0000

Over at the Volokh Conspiracy, Orin Kerr writes about an interesting talk recently given by Harvard Law professor Darryl Levinson to aspiring law professors. Like Orin, I was particularly struck by the following remarks from the article: “practical legal experience is not a good predictor of scholarly ability, and, Levinson noted, ‘is pretty nearly disqualifying.’ Levinson pointed out that today’s younger professors have no significant practical experience, and that if they tried to become involved in the world, ‘the world would probably recoil in horror.’” Since today is the start of the infamous meat market, I don’t want all those aspiring law professors with practical experience to be discouraged! First, I think that many, although certainly not all, younger professors do have significant practice experience. I worked for a long time as both a defense attorney and as a prosecutor, and I know that both my teaching and my scholarship are far richer for the experience. At least in the criminal field, I can think of numerous colleagues who have experience on either the prosecution or the defense side (or both). Second, if we are indeed moving to a world where new professors do not have any practical experience, I think that would be a tremendous loss for students, for law schools, and for the profession. We are after all training most students to be lawyers, not academics. I wish that we could move away from this view that having practice experience, in other words being a good attorney, and being a great scholar are incompatible. I believe that it is eminently possible to be both.

Gun control and the District of Columbia

Jennifer Collins — Thu, 25 Oct 2007 19:17:17 +0000

The Supreme Court should be deciding in the next couple of weeks whether to grant cert in the case challenging the District of Columbia’s law in essence banning residents from possessing handguns. (Michael O’Shea has done an admirable job over at Prawfs collecting various materials related to the cert petition). As a former assistant U.S. attorney in D.C., I’ve been following the case with interest, and I do expect that the Court will grant cert. I think it’s worth acknowledging the primary functions of the law as it’s used by prosecutors in DC: the gun ban is both a preventive detention statute and an intelligence-gathering tool. At one time when I was a prosecutor, we were prohibited from extending a plea offer in gun cases unless the defendant agreed to come into the office (with his attorney, of course) and be “debriefed” about his knowledge of criminal activity in the city. The statute was also a mechanism for locking up individuals perceived as violent, but against whom other cases could not be brought for whatever reason. It’s pretty simple to prove beyond a reasonable doubt that an individual was in possession of a gun without a license and a lot tougher to prove that he committed a violent crime. These functions may not be relevant to the question whether the statute is constitutional, but it’s worth acknowledging that invalidating the gun ban will surely have a tremendous impact on crime-fighting in the District.

Oh, Britney

Jennifer Collins — Tue, 02 Oct 2007 20:04:30 +0000

As both a criminal law and a family law professor, I have been following the developments in the Britney Spears custody saga with interest (solely for professional reasons, of course). It never ceases to amaze me how there is this unending parade of troubled celebrities willing to provide me with great material for classroom discussions. The development that particularly struck me today was her lawyer’s assertion that she temporarily lost custody simply for her failure to take a drug test and get a CA driver’s license. Several of the folks I have talked to have expressed bewilderment that she would not comply with these very simple steps mandated by the court when the custody of her children is at stake. Sadly, I think this another example of a phenomenon that I’ve been writing about — that we tend to romanticize the parent-child relationship and assume that parents will generally do right by their children without court intervention. As I wrote in an article that appeared in the Northwestern University Law Review last year, ” we desperately want to believe that all parents are good and loving individuals whose lives revolve around their children and who always act in their children’s best interest.” Britney Spears is yet another example of why we should have a conversation about whether the law’s reliance on that assumption makes sense. For whatever reason — mental illness, drug use, immaturity, a need for attention, an unconscious desire to be free of the burdens of parenthood — Britney at this point in her life is unable to put the needs of her children first. Unfortunately, she is not the only parent in that position. These are incredibly complicated and painful questions, to be sure, with no quick or easy answers. But I think that it is a conversation worth having.

Are there fewer women at your law school?

Jennifer Collins — Mon, 01 Oct 2007 16:59:26 +0000

I am delighted to be back at Concurring Opinions and want to thank Dan and the gang for inviting me to return. There is an interesting article in the National Law Journal today describing how the percentage of women in law school has declined each year since 2002. The article mentions the strong economy and availability of other well-paying jobs as contributing to the decline, but states that “the prevailing message is that fewer women want a lawyer’s life.” So for our law professor readers — are you seeing fewer women at your law school these days? For our student readers — what do you think is responsible for the decline? Do you think women have been scared off from law school by the media’s portrayal of the law as a profession that is not family-friendly?

Thanks for the visit

Jennifer Collins — Tue, 02 Jan 2007 16:40:00 +0000

It’s time for me to sign off, so I wanted to say thanks to Dan and company for having me and leave some parting thoughts.

1. Since my post that generated the most comments related to the Duke rape case, I just wanted to make a couple of notes in response to the latest developments. I can think of no justification whatsoever for failing to make a complete and pointed disclosure of the DNA results, and I imagine that Mr. Nifong will soon be facing additional problems related to that lapse. But no matter what the ultimate outcome of the case, I fear the media firestorm the case has generated will deter rape victims from coming forward in the future, and that would be truly be a tragedy. We must not use the problems that have arisen in relation to this alleged victim as an excuse not to take other complaints seriously. At the same time, I hope the the criminal justice apparatus here in North Carolina will take a hard look at itself and consider implementing some new procedures like a more vigorous use of the grand jury and earlier interviews of victims by prosecutors.

2. I also wanted to make an appeal to our law student readers and recent law grads. When you have a minute, send an email to your professors to let us know how you are doing. I find the hardest part of being a law professor is that you meet all these wonderful students and become invested in their success, but then they understandably disappear after graduation, never to be heard from again. I at least want to know how you’re doing! So please keep in touch.

3. Most important, go Deacs! We’re playing in the Orange Bowl tonight, where as always we’re going in as the underdog. No matter what happens, it’s been a glorious season!

Lobbying the Jury

Jennifer Collins — Wed, 13 Dec 2006 16:56:43 +0000

The New York Times has an interesting editorial today in which it criticizes the Supreme Court’s decision this week to uphold a murder conviction in a case where members of the victim’s family wore buttons displaying the victim’s picture during the trial. The editorial argues that the buttons “were essentially an argument that the deceased was an innocent victim” in the fight that led to his death. Well, I’m not sure how that follows, unless the words “innocent victim” or the equivalent were displayed across the button. I think it is far more likely that the jury saw the buttons as a sign that a family was grieving, and not as a comment on the defendant’s guilt or innocence. In general, I think issues surrounding displays of emotion by the victim’s family in homicide trials are more subtle than the editorial suggests. Of course the focus of the trial rightly needs to be on the defendant’s guilt or innocence, but I am not sure that means the trial needs to be entirely sanitized of emotion. When I was prosecuting, for example, we had one judge who routinely instructed witnesses who were related to the victim that they had better not cry during their testimony. Instructions like these, or concerns over buttons that do no more than display a photo, seem to me to underestimate the the intelligence and commitment of jurors. I at least have never encountered a juror who seemed to think it would be appropriate to convict an innocent man just to ease a devastated mother’s pain — they recognize that would do nothing to help the family at all. Jurors seem to me quite capable of both empathizing with a family’s pain and at the same time putting those sympathies aside in order to focus on the evidence. Any other thoughts?

Teaching Loads

Jennifer Collins — Mon, 11 Dec 2006 15:53:26 +0000

I am on my law school’s long-term strategic planning committee, which should be working pretty intensely in the spring thinking about lots of different aspects of our law school. One issue that I have been thinking about lately is teaching loads. It seems to me that many schools are moving toward a 3 course teaching load, and I would be grateful if our law professor readers could help me collect some data. What is the teaching load at your school? If you have recently gone from four courses to three, has that made a meaningful difference in your academic life or in the number of course offerings at your school? (I also want to apologize in advance to any readers who may teach undergraduate students, who are no doubt appalled at the notion that law professors only have to teach three or four courses a year!)

Selecting Difference

Jennifer Collins — Tue, 05 Dec 2006 17:42:22 +0000

There is a fascinating essay today in the NY Times about the way some parents are using advanced reproductive technologies to select embryos specifically “for the presence of a disability” so that the parents and child will share the same physical challenges. The article focuses in particular on parents attempting to ensure either that their children will be born deaf or with dwarfism. I first began thinking about this issue several years ago when the Washington Post ran a very interesting article about a couple, both deaf, who elected to use a deaf sperm donor in an effort to ensure that their child would be deaf (their effort was successful). What do readers think? Should doctors go along with such requests from fertility patients?

Improper Closing Arguments During Criminal Trials

Jennifer Collins — Fri, 01 Dec 2006 19:07:32 +0000

There has been an interesting discussion this week in the blogosphere about whether it’s appropriate for a prosecutor to urge the jury during closing argument to “send a message” with its verdict. See, for example, this discussion at the Volokh Conspiracy: http://volokh.com/posts/1164681889.shtml. I worked as a prosecutor in Washington, D.C., where such arguments were clearly impermissible. Being careful not to make a misstep during closing argument weighed very heavily on the minds of the attorneys in my office because the appellate court in DC kept very tight reins on prosecutors. Perhaps the most striking example was that you could not say a defense witness lied during closing argument. You could say the testimony was incredible in light of the other evidence in the case, or inconsistent with the testimony of other witnesses, but we were warned in no uncertain terms not to use the word “lie” in closing argument. In keeping with the prohibition that you could not tell the jurors to send a message, you also could not tell jurors they were the “conscience of the community.” Of course, prosecutors have made some pretty remarkable statements in closing arguments over the years. Some of my personal favorites are (1) the prosecutor who stated about a witness “I believe him from the bottom; I swear I believe him from the bottom” and (2) the one who told the jury he “did not go to law school to put innocent men in the penitentiary.” Comparing a defendant to Charles Manson is not surprisingly no good either. Anyone else have any particularly striking examples?

How Many Bites of the Apple?

Jennifer Collins — Fri, 17 Nov 2006 15:45:24 +0000

A prosecutor friend of mine recently set a fifth trial date in a homicide case where the jury has been unable to reach a verdict in the previous trials. When I was prosecuting, I was asked to handle the fourth retrial of another case where previous juries were similarly unable to reach a verdict. (Once again, the jury was unable to reach a verdict and we decided not to try the case a fifth time). Just two weeks ago, the government announced it would not retry reputed mobster John “Junior” Gotti after three attempts all resulted in hung juries. How many tries should the government get to convict a defendant? It seems to me that the vote counts in the previous trials should be one of the most important factors — if the jury is hanging 11-1 for acquittal every time, that is a case that pretty clearly needs to be brought to a close. The nature of the criminal charges seems to be another — the government would no doubt be more willing to continue to try to obtain a conviction in a particularly gruesome murder case than in a shoplifting case. Is anyone aware of any jurisdictions with firm rules on the issue?

Women’s Funds

Jennifer Collins — Mon, 13 Nov 2006 23:22:04 +0000

I’ve recently been asked to get involved with a new women’s fund that is being created here in Winston-Salem (which I feel compelled to mention is the home of the extremely impressive Wake Forest football team! Go Deacs!) The idea is that women are both underrepresented as charitable donors (because even in two-income families men tend to control a household’s charitable giving) and that charities specifically targeted toward helping women and girls are underfunded (according to the statistics the fund gave me, less than five percent of philanthropic dollars in the U.S. go specifically to programs for women and girls). The idea is that you buy into the fund, pledging to make an annual donation every year for three years, and then you get a vote as to how the fund’s resources are allocated. Do any of our readers have experience with these kinds of funds? Any reactions about whether they are a good idea?

Teaching Rape in a Criminal Law Class

Jennifer Collins — Sun, 05 Nov 2006 20:23:28 +0000

I am teaching Criminal Law this semester and just finished a unit on rape. I am always fascinated by the number of colleagues I encounter who do not teach rape in their introductory criminal law class, presumably because they fear the topic is too controversial or inflammatory. I, on the other hand, can’t imagine not teaching it. It’s a topic that unfortunately touches so many students’ lives and also serves as a wonderful example of how changing social norms and the criminal law shape — and reflect — each other. I also find every year that my two classes on rape law contain some of the most thoughtful and engaging class discussions of the entire semester. I am always tremendously proud of the way my students approach the materal. But maybe my perspective is unique and I would love to hear other thoughts. For our law professor readers, do you include a unit on rape, and why or why not? For our law student readers, did you find it important or useful to cover rape law in your introductory crim law course?

Prosecutorial Practices and the Duke Lacrosse Case

Jennifer Collins — Thu, 02 Nov 2006 16:02:30 +0000

First, I would like to thank Dan and all the folks at Concurring Opinions for inviting me to spend some time here. I thought I would dive right into a controversial topic to get things started off and post a few thoughts on the Duke lacrosse case. I obviously have no idea what really happened in the house that night, but it has been a fascinating case to observe from a procedural standpoint as a former violent crimes prosecutor. A couple of developments in the past week have been particularly interesting. First, DA Nifong stated that neither he nor anyone in his office has interviewed the alleged victim about the night in question. I frankly find that remarkable, especially in a case so dependent on victim testimony. When I was prosecuting we would have interviewed the victim early and often, both to help establish the facts and to develop additional avenues of investigation. This issue leads to my second and related point, which is that I think this case is an example of how the much maligned grand jury can actually serve an incredibly valuable function. We used grand juries extensively when investigating violent crimes in Washington, D.C. If I had been handling this case, for example, I certainly would have had every non-charged player who was at the party testify before the grand jury, as well as the second dancer who was at the house that night. Bringing as many witnesses before the grand jury as possible both helps to eliminate surprises like the second dancer’s statements to Good Morning America this week and offers the prosecutor invaluable insights from grand jurors about witness credibility, holes in the government’s case, and the like. It will be very interesting to see if this case leads to any evolution in prosecutorial practices in North Carolina in the future.