The Prevalence of Fines

posted by Judge_Burke @ 15:53 PM
August 23, 2019

Profit motive: When your local government is addicted to fines.


Speed traps through small towns in rural parts of the country are a phenomenon as old as car traffic itself. But today this form of predatory policing has become endemic in some jurisdictions. How big is the problem? Fines “account for more than 10 percent of general fund revenues in nearly 600 U.S. jurisdictions. In at least 284 of those governments, it’s more than 20 percent.”


See the full article at GOVERNING.


From Judge Wayne Gorman:

In R. v. Dudhi, 2019 ONCA 665, August 22, 2019, the accused was charged with the offences of possession of cocaine for the purpose of trafficking and breach of recognizance.  The police arrested the accused for breaching a condition of his recognizance that was no longer in force.  After the arrest, the police searched the vehicle the accused had been driving and found cocaine.

At the trial, there was evidence that the “the arresting officer [Constable Clayton] made a comment over the radio to his police colleagues about ‘brown’ drug dealers”.

The accused argued that “he was racially profiled and therefore arbitrarily detained, contrary to s. 9 of the Charter”. The trial juge concluded that “there was no link between the comment and the reason for the arrest”. The cocaine was admitted as evidence and the accused was convicted.

The accused appealed from conviction.  The Ontario Court of Appeal concluded that the trial judge erred in his analysis of whether racial profiling had occurred and in his application of section 24(2) of the Charter.  The Court of Appeal set aside the convictions and ordered a new trial.

Racial Profiling:

The Court of Appeal indicated that racial profiling “has two components: (1) an attitudinal component; and (2) a causation component”.  These components were explained by the Court of Appeal in the following manner (at paragraph 55):

The attitudinal component is the acceptance by a person in authority, such as a police officer, that race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous…The causation component requires that this race-based thinking must consciously or unconsciously play a causal role. Meaning, race or the racial stereotype must motivate or influence, to any degree, decisions by persons in authority regarding suspect selection or subject treatment.

The Court of Appeal indicated that “racial profiling occurs where race or racial stereotypes are used ‘to any degree in suspect selection or subject treatment’” (at paragraph 59). Thus, “a decision need not be motivated solely or even mainly on race or racial stereotypes to nevertheless be ‘based on’ race or racial stereotypes. If illegitimate thinking about race or racial stereotypes factors into suspect selection or subject treatment, any pretence that the decision was reasonable is defeated. The decision will be contaminated by improper thinking and cannot satisfy the legal standards in place for suspect selection or subject treatment” (at paragraph 62).

In the context of this case, the Ontario Court of Appeal concluded that the trial judge “committed two errors in his racial profiling reasoning, each relating to the causation component. First, he believed improperly that the racist comment made by Cst. Clayton could not support a racial profiling finding because it was uttered after the decision to arrest had already been made. Second, he gave undue weight to what he felt were reasonable grounds that would have justified Mr. Dudhi’s arrest in any event” (at paragraph 67).

Section 24(2):

The Court of Appeal also concluded that the trial judge erred in his application of section 24(2) of the Charter (at paragraphs 90 and 91):

First, I cannot accept the trial judge’s finding that the failure of the officers to “dig deeper” before arresting Mr. Dudhi “falls closer to the less serious negligence or lack of due diligence end of the continuum.” This conclusion reflects an error in principle: the continuum spans good faith to bad faith. Negligence or the lack of due diligence does not fall at either end of that continuum…The negligence demonstrated by the officers in this case is far removed from good faith and actually sits more proximate to the bad faith end of the breach spectrum…

Second, I cannot agree with the trial judge’s view that even had the police learned that the cellphone prohibition had been varied, they could have stopped Mr. Dudhi in any event under the authority of the Highway Traffic Act. I agree with Mr. Dudhi’s submission on this point. Had the police used the Highway Traffic Act to pursue a drug investigation, this would have been a pretence stop, contrary to the Charter.


Laird C. Kirkpatrick (George Washington University – Law School) has posted The Admissibility of Forensic Reports in the Post-Justice Scalia Supreme Court on SSRN. Here is the abstract:

Forensic reports apparently linking a defendant to a crime often constitute the most powerful and persuasive evidence that can be offered at a criminal trial. Yet the Supreme Court is sharply divided about the constitutional requirement for admitting such reports under the Confrontation Clause. In the three cases addressing this question the Court divided 5-4 in its first two decisions and 4-4-1 in its most recent opinion. In a recent dissent to the denial of a Petition for a Writ of Certiorari in Stuart v. Alabama, Justice Gorsuch noted that the Court’s opinions on this question “have sown confusion in courts across the country.” Justice Gorsuch urged his colleagues to clarify the law in this area and went on to reveal his own views about the application of the Confrontation Clause to forensic reports. His views, which are analyzed in this article, are of critical importance because he is the potential fifth vote who could either overturn or reaffirm the controlling case law in this area.

It also appears that he intends to play a leading role in clarifying and shaping the future direction of confrontation jurisprudence. Justice Gorsuch is the successor to Justice Scalia, who developed the now prevailing interpretation of the Confrontation Clause as requiring “testimonial” hearsay to be cross-examined. Justice Scalia’s interpretation of the Sixth Amendment is a major part of his legacy, but is currently under attack in these cases. How much of the legacy of Justice Scalia that survives may depend to a considerable extent on Justice Gorsuch, which is why his views on this issue, which are analyzed in this article, are of particular importance.


What Happens When There Are Not Enough Court Reporters?

posted by Judge_Burke @ 19:59 PM
August 8, 2019

“The nation’s courtrooms are critically short of court reporters. And already it is causing delays in hearings and trials. The decline has been sudden and sharp; there are 18 percent fewer reporters than there were in May 2018. And there is no reason to think that a wave of new reporters is waiting to take those jobs. The dropout rate at court reporter schools is infamously high. Only six of 111 students passed their California certification test in March.” See full article from THE WALL STREET JOURNAL, and see THE MARSHALL PROJECT for more.


So What Exactly Is A Reasonable Expectation Of Privacy?

posted by Judge_Burke @ 20:00 PM
August 7, 2019

Matthew Tokson (University of Utah – S.J. Quinney College of Law) has posted The Emerging Principles of Fourth Amendment Privacy (George Washington Law Review, Forthcoming) on SSRN. Here is the abstract:

The Fourth Amendment applies when the government violates a citizen’s “reasonable expectation of privacy.” But the Supreme Court has never explained what makes an expectation of privacy reasonable, and scholars regularly complain that this standard is incomprehensible and unworkable.

Yet the reasonable expectation of privacy standard may be more coherent than is currently recognized. The Supreme Court has decided more than forty reasonable expectation of privacy cases since the standard was developed. This Article is the first to analyze all of these decisions. It draws out three consistent principles that drive the Court’s assessments of Fourth Amendment privacy: the intimacy of the place or thing targeted; the amount of information sought; and the cost of the investigation.

The Article traces these principles through the Court’s Fourth Amendment jurisprudence, offering an explanatory account of a body of law often thought to be inexplicable. And it brings them forward, generating predictions for future cases involving novel surveillance technologies.

The Article makes several contributions to the Fourth Amendment literature. It develops a unified model of Fourth Amendment privacy, one that operates consistently across a variety of surveillance contexts. It details the Supreme Court’s growing acknowledgment of the principles of intimacy, amount, and cost. It makes the case for more overt recognition of these principles, which would have substantial benefits for Fourth Amendment jurisprudence and scholarship. And it offers a clear, comprehensible answer to the question of what violates a reasonable expectation of privacy.


Improving Jury Decision Making

posted by Judge_Burke @ 18:06 PM
August 6, 2019

Dan Simon (University of Southern California Gould School of Law) has posted an abstract of On Juror Decision Making: An Empathic Inquiry (Forthcoming in Annual Review of Law and Social Science (2019)) on SSRN. Here is the abstract:

This review examines the workings of jurors deciding criminal cases. It seeks not to commend or condemn jury decision making but rather to offer an empathic exploration of the task that jurors face in exercising their fact-finding duty. Reconstructing criminal events in the courtroom amounts to a difficult feat under the best of circumstances. The task becomes especially complicated under the taxing conditions of criminal adjudication: the often substandard evidence presented in court; the paucity of the investigative record; types of evidence that are difficult to decipher; the unruly decision-making environment of the courtroom; and mental gymnastics required to meet the normative demands of criminal adjudication. The critical spotlight is directed not at the jurors but at the conditions under which we expect them to fulfill their duty and the reverence in which their verdicts are held. The article concludes with a set of recommendations designed to assist our fact-finders in meeting the societal expectations of this solemn task.


A Thought Provoking Piece By Professor Michael Perlin

posted by Judge_Burke @ 20:15 PM
August 5, 2019

Michael L. Perlin (New York Law School) has posted ‘Deceived Me into Thinking/I Had Something to Protect’: A Therapeutic Jurisprudence Analysis of When Multiple Experts Are Necessary in Cases in which Fact-Finders Rely on Heuristic Reasoning and ‘Ordinary Common Sense’ on SSRN. Here is the abstract:

There is a stunning disconnect between the false “ordinary common sense” of fact-finders (both jurors and judges) and the valid and reliable scientific evidence that should inform decisions on the full range of questions that are raised in cases involving the forensic mental health systems – predictions of future dangerousness, competency and insanity determinations, sentencing mitigation in death penalty cases, and sexually violent predator commitments. Abetted by the misuse of heuristic reasoning (the vividness effect, confirmatory bias, and more), decisionmakers in such case frequently “get it wrong” in ways that poison the criminal justice system. If we were to adopt this proposal – to provide two experts in cases in which such inaccuracy is likely, one to explain to the fact-finders why their “common sense” is fatally flawed, and one to provide an evaluation of the defendant in the context of the specific question before the court – then, and only then, would therapeutic jurisprudence principles be vindicated.


Thinking About Double Jeopardy

posted by Judge_Burke @ 20:54 PM
August 2, 2019

Rory K. Little (UC Hastings College of the Law) has posted Double Jeopardy and the Gamble decision (Forthcoming, SCOTUS 2019) on SSRN. Here is the abstract:

This short book chapter analyses the U.S. Supreme Court’s recent decision in Gamble v. United States (2019), which decided not to overrule “170 years of precedent” allowing the “same sovereigns” to both prosecute an individual for the same crime. Here, the feds prosecuted Gamble as a “felon-in-possession” after Gamble had pled guilty to that same offense under State law. He received an additional three years in prison for the federal conviction, consecutive to a year in Alabama. Justice Alito wrote for 7 Justices that the “separate sovereigns” exception to the Double Jeopardy Clause is backed by reasonable policy as well as precedents dating back to at least 1852. Interestingly, Justices Ginsburg and Gorsuch, ideological opposites to some extent, both dissented, and wrote that “individual liberty” should prevail over “stare decisis.” Doctrinal thoughts on three issues are offered at the end.


Is Racial Profiling driven By Lax Application Of Terry v Ohio?

posted by Judge_Burke @ 21:36 PM
August 1, 2019

Michael Gentithes (Chicago-Kent College of Law – Illinois Institute of Technology) has posted Suspicionless Witness Stops: The New Racial Profiling on SSRN. Here is the abstract:

Young minority men in high-crime neighborhoods are surrounded by poverty and crime, yet distrustful of the police that frequently stop, frisk, and arrest them and their friends. Every encounter with the police carries the potential for a new arrest or incarceration, fostering a culture of fear and distrust of the authorities. That culture exacerbates the problems facing officers patrolling these neighborhoods, as more crimes go unsolved because witnesses are unwilling to come forward.

In the past several decades, officers have responded by using a stop-and-frisk technique of dubious constitutionality to control crime. Despite its disastrous implications for the young minority men stopped, the technique was an attractive, proactive response to stubborn crime rates. But as stops-and-frisks have fallen into public and judicial disfavor, officers have deployed a new tactic to obtain evidence of crimes from young minority men: suspicionless witness stops.

In suspicionless witness stops, officers stop individuals in high-crime neighborhoods that may be witnesses to another crime — even though the officers do not suspect that the witnesses have committed an offense. Thus, officers can justify stops without fabricating even the reasonable suspicion of criminal activity typically required to conduct a stop-and-frisk, all by using an analogy to police roadblock cases like Illinois v. Lidster.

Only a robust revival of Terry v. Ohio’s reasonable suspicion standard can curb the vast potential for discriminatory deployment of suspicionless witness stops. But early court responses have been tepid and confused. They should instead soundly reject the analogy to checkpoint cases. The constitutionality of checkpoints arises from their general applicability to wide swaths of the population, not from their aim to locate witnesses. To encourage witnesses to aid investigations, jurisdictions might instead statutorily grant transactional immunity protection to witnesses that officers stop without suspicion. Otherwise, suspicionless witness stops will only perpetuate the cycle of distrust and unsolved crime.


Misdemeanor Appeals

posted by Judge_Burke @ 20:56 PM
July 31, 2019

Nancy J. King and Michael Heise (Vanderbilt University – Law School and Cornell Law School) have posted Misdemeanor Appeals on SSRN. Here is the abstract:

Misdemeanor cases affect far more people than felony cases, outnumbering felony cases by more than three to one. Yet very little empirical information exists on many aspects of misdemeanor prosecutions. This Article provides the first quantitative look at appellate review in misdemeanor cases, nationwide. It uses data drawn from a random sample of direct criminal appeals decided by every state appellate court in the nation, unpublished aggregate data on misdemeanor trial court cases provided by the Court Statistics Project, and published state court statistics.

We provide the first estimate of the rate of appellate review for misdemeanors, concluding that appellate courts review no more than eight in 10,000 misdemeanor convictions, and disturb only one conviction or sentence out of every 10,000 misdemeanor judgments. This level of oversight is much lower than that for felony cases, for reasons we explain. To develop law and regulate error in misdemeanor cases, particularly in prosecutions for the lowest-level offenses, courts may need to provide mechanisms for judicial scrutiny outside the direct appeal process.

Additional findings include new information about the rate of felony trial court review of lower court misdemeanor cases, ratios of appeals to convictions for various misdemeanor-crime categories, detailed descriptive information about misdemeanor cases that reach state appellate courts, the results of a complete statistical analysis examining which features are significantly associated with a greater or lesser likelihood of success, including crime type, claim raised, judicial-selection method, and type of representation, and the first quantitative look at how misdemeanor appeals differ from felony appeals.