Video Blinds Us to the Evidence Study Finds

posted by Judge_Burke @ 14:00 PM
October 1, 2014

Thanks to improved technology, there is a lot more video evidence in criminal courts today than a decade ago. Many police departments have video cameras in squad cars and/or worn by officers. But, are there cautions we should take when viewing video?

Studies have already shown that video evidence is not always enough to cut through jurors’ biases — toward either police or people of certain races and groups — when judging a case. Now, a new series of studies from New York University and Yale researchers suggests that ambiguous video evidence may actually reinforce people’s biases if looked at in a certain way.

New York University reports:

Where people look when watching video evidence varies wildly and has profound consequences for bias in legal punishment decisions, a team of researchers at New York University and Yale Law School has found. This study raises questions about why people fail to be objective when confronted with video evidence.

In a series of three experiments, participants who viewed videotaped altercations formed biased punishment decisions about a defendant the more they looked at him. Participants punished a defendant more severely if they did not identify with his social group and punished him less severely if they felt connected to the group—but only when they looked at the defendant often.

“Our findings show that video evidence isn’t evaluated objectively—in fact, it may even spur our existing biases,” explains Emily Balcetis, an assistant professor in NYU’s Department of Psychology and one of the study’s authors. “With the proliferation of surveillance footage and other video evidence, coupled with the legal system’s blind faith in information we can see with their own eyes, we need to proceed with caution. Video evidence is seductive, but it won’t necessarily help our understanding of cases, especially when it’s unclear who is at fault.”


The research appears in the Journal of Experimental Psychology: General, which is published by the American Psychological Association.


The full story is here.


Do You Do Anything Right When There is a Claim of Prosecution Misconduct?

posted by Judge_Burke @ 14:11 PM
September 30, 2014

The vast majority of prosecutors in the United States and Canada are decent, honorable lawyers. But, occasionally there are notable instances where the lawyers for the prosecution don’t live up to our ideals. In recent years there was a failure to disclose exculpatory evidence in the case of former Alaska Senator Ted Stevens, several death penalty convictions reversed for similar conduct, and a plethora of claims that arguments in closing argument were improper. A lot of these claims are rejected on harmless error grounds.  But, should they be?

Mary Bowman (Seattle University School of Law) has posted Mitigating Foul Blows (Georgia Law Review, 2015, Forthcoming) on SSRN.

Here is the abstract:

For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel’s failure to object or concluding that the misconduct was merely harmless error. Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts’ attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary.

Cognitive bias research illuminates the reasons for, and solutions to, the gap between rhetoric and reality in prosecutorial misconduct cases.

This article is the first to explore theories of cognition that help explain the frequency of prosecutorial misconduct and the ways that it likely affects jurors and reviewing judges more than they realize. As a result, the article advocates for sweeping changes to the doctrine of harmless error and modest changes to the doctrine of plain error as applied in prosecutorial misconduct cases. These solutions will help courts abandon their attitude of helpless piety, clarify the currently ambiguous law on what behavior constitutes prosecutorial misconduct, encourage defense counsel to raise timely objections to misconduct, and reverse convictions when misconduct may well have affected the outcome of the case but affirm when the misconduct was trivial.




Watch What You Take

posted by Judge_Burke @ 14:00 PM
September 26, 2014

In a recently released advisory opinion, the California Supreme Court Committee on Judicial Ethics Opinions wrote that gifts cannot be accepted by judges if they are offered by a party who has or is likely to appear before the judge at any point in his or her career, or if they create a perception of influence, favor, or reasonable belief that the giver was anticipating an advantage.

“When determining if gifts are otherwise acceptable as ordinary social hospitality, judges should consider whether they are ordinary by community standards, consistent with social traditions, and hospitable in nature,” the Opinion reads.

Instances when judges might be offered gifts include jurors bringing homemade food to the judge, local sports team or the judge’s alma mater gifting branded merchandise, or a law firm delivering pizza to courtroom staff following a long trial.

“As varied as the examples are, the items are similarly low in extrinsic dollar value but high in intrinsic social value,” the Opinion reads.

According to the Opinion, gifts may be accepted, however, if they do not violate the guidelines intended to keep judges impartial, are of little or nominal value, considered ordinary by community standards, and offered for social traditions or purposes.


Can Judges Learn about Confirmation Bias through Ferguson?

posted by Judge_Burke @ 14:00 PM
September 25, 2014

The Associated Press has a story about Confirmation Bias in how people view the tragedy of Ferguson.

The story provides, in part:

With so much incomplete and sometimes conflicting information, some confirmation bias is bound to occur.

“If one were to view a police officer pointing a gun at someone, and they also view police negatively, they may very well ignore whatever events precipitated the officer drawing his/her weapon, even though that action may have been entirely justifiable,” Lou Manza, chair of the psychology department at Lebanon Valley College in Pennsylvania, said in an email.

“On the other side,” he said, “if one has a favorable view of police, they’re going to ignore the alleged assailant’s behavior, and simply assume that the police officer is correct, despite the fact that the officer may very well be wrong and unjustified in their actions.”

“Confirmation bias is a subtle but strong effect,” Manza said, “and once a belief is established, it can be VERY difficult to change it.”

This helps to explain why Brown’s killing, currently being considered by a Missouri grand jury, has revived a dynamic seen in racial controversy after controversy, from O.J. Simpson to Rodney King to Trayvon Martin: People look at the same information and come to very different conclusions.

In this particular case, with little unambiguous evidence, “people are actually acting very reasonably,” said Plous, the Wesleyan professor.

“There is a void, and into that void, people will bring whatever they regard as the most reasonable evidence,” he said. “People are trying to make sense of this tragedy using the most compelling evidence they have available.”


So, the question is not what judges may privately think about the Ferguson shooting, but can we learn about the subtle yet strong effect confirmation bias can play in our everyday decision-making?


Alabama & Foreign Law

posted by Judge_Burke @ 14:00 PM
September 24, 2014

Governing Magazine reports:

In what some call an effort to demonize the Islamic faith, Alabama this fall will become the newest state where voters will deliberately banning their courts from considering foreign, international or religious law.

The ballot measure, “American and Alabama Laws and Alabama Courts Amendment,” would clarify the state constitution to say that that other state laws or foreign law cannot be used in ways that violate state law or rights under the Alabama Constitution or the U.S. Constitution. The unsuccessful precursor to the 2014 measure, also proposed in the legislature by Republican Sen. Gerald Allen, was an amendment for the 2012 ballot that would have explicitly banned state courts from implementing Islamic Shariah law.

Amos Toh, a co-author of a Brennan Center for Justice report that cast such bans as anti-Muslim and “thinly concealed attempts” to demoralize the faith, said the Muslim community remains the target in these wider, foreign law bans.

“The motivation underlying the passage of the legislation is very much a fundamental misunderstanding about Islam and a belief in stereotypes,” he said.

But Allen said the goal of the amendment is to “take every measure” to ensure that the United States and State Constitutions come first in the interpretation of our laws.

“This is not an effort to demonize any religion,” he responded in an email, “but rather an effort to ensure that the laws on which our great country was founded are never eroded.”

Six states have similar foreign law bans, most recently North Carolina’s last year. Missouri also passed a measure banning foreign law last year but Gov. Jay Nixon vetoed the bill because of its potential impact on international adoptions. Oklahoma’s voters approved a ban, which explicitly referred to Sharia law, in 2010. But this year it was struck down by a federal appeals court for being discriminatory. Arizona, South Dakota, Kansas, Louisiana and Tennessee all have passed measures banning implementation of foreign or religious laws. Still, the issue has permeated across the country: all but 16 states have considered such a measure in the past five years.


When Should a Judge Raise an Issue Not Pursued by the Parties?

posted by Judge_Burke @ 14:00 PM
September 23, 2014

It does not happen much on appeal, but it does happen — and there are trial court judges who are more prone than others to raise an issue that the parties have not. So, when should it happen?

Thanks to judge Wayne Gorman, we know a little more about the Canadian approach to the issue.

In R. v. Mian, 2014 SCC 54, September 12, 2014, the accused’s acquittal was overturned by the Alberta Court of Appeal.  One of the reasons for doing so involved an issue that the parties had not raised, but was raised by the Court of Appeal. On appeal to the Supreme Court of Canada, the Court considered when an appeal court should raise an issue not raised by the parties and concluded that the Court of Appeal had erred in doing so in this case.

In reaching this conclusion, the Supreme Court set out “guidelines” for an appellate court to apply when determining whether to raise an issue on its own motion. Though these  guidelines are designed for appeals, they may also prove useful to trial judges who are attempting to determine if they should raise an issue at trial that the parties have not pursued. The guidelines are as follows (at paragraphs 57 to 59):

First, notification of the new issue may occur before the oral hearing, or the issue may be raised during the oral hearing. If the issue is raised during the oral hearing, it may be necessary to grant an adjournment to ensure a full and fair hearing (E.M.W., at para. 4). If the issue is raised prior to the oral hearing, the parties may request an adjournment of the hearing and an extension of the filing deadlines for further written argument.  At all times, the court should raise the issue as soon as is practically possible after the issue crystallizes so as to avoid any undue delay in the proceedings.

Second, I agree with the submission of the Crown that the notification should not contain too much detail, or indicate that the court of appeal has already formed an opinion; however, it must contain enough information to allow the parties to respond to the new issue. Ultimately, the adequate content of notice will have to be determined on a case-by-case basis. It will be dependent on a number of factors, including the complexity of the issue and the obviousness of the issue on the face of the record.

Finally, I agree with the submission of the Crown that the requirements for the response will depend on the particular issue raised by the court. Counsel may wish to simply address the issue orally, file further written argument, or both. As the Crown in this case says, this determination is properly in the hands of both the court and the parties. In my view, the underlying concern should be ensuring that the court receives full submissions on the new issue. If a party asks to file written submissions before or after the oral hearing, in my view, there should be a presumption in favour of granting the request. The overriding consideration is that natural justice and the rule of audi alteram partem will have to be preserved. Both sides will have to have their responses considered.  


We are a Better Nation for this Decision

posted by Judge_Burke @ 14:06 PM
September 22, 2014

Can domestic violence be so brutal that our nation needs to provide refuge for those who are subject to it?

The New York Times reports that the answer, after decades of litigation, is Yes:

The nation’s highest immigration court has found for the first time that women who are victims of severe domestic violence in their home countries can be eligible for asylum in the United States.

The decision on Tuesday by the Board of Immigration Appeals in the case of a battered wife from Guatemala resolved nearly two decades of hard-fought legal battles over whether such women could be considered victims of persecution. The ruling could slow the pace of deportations from the Southwest border, because it creates new legal grounds for women from Central America caught entering the country illegally in the surge this summer in their fight to remain here.

The board reached its decision after the Obama administration changed a longstanding position by the federal government and agreed that the woman, Aminta Cifuentes, could qualify for asylum.

Since 1995, when federal officials first tried to set guidelines for the immigration courts on whether domestic abuse victims could be considered for asylum, the issue has been reviewed by four attorneys general, vigorously debated by advocates and repeatedly examined by the courts. With its published decision, unusual in the immigration courts, the appeals board set a clear precedent for judges.


Continue reading here.


In an interesting and perhaps even landmark decision decided in U.S. v. Kentucky Bar Assn., the Supreme Court of Kentucky unanimously rejected a challenge by federal prosecutors to Kentucky Bar Association Ethics Opinion E-435, which states that the use of ineffective assistance of counsel (IAC) waivers in plea agreements violates Kentucky’s Rules of Professional Conduct.

According to the court, this means that whether in state or federal court in Kentucky, “either defense counsel or prosecutors inserting into plea agreement waivers of collateral attack, including IAC, violates our Rules of Professional Conduct.”  The Court held that “the use of IAC waivers in plea agreements (1) creates a nonwaivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney’s liability for malpractice, (3) induces, by the prosecutor’s insertion of the waiver into plea agreements, an ethical breach by defense counsel.”

The decision also relies on the McDade-Murtha Amendment (28 USC § 530B), which requires that federal prosecutors abide by state ethics laws. The National Association of Criminal Defense Lawyers (NACDL) advocated for passage of this important check on prosecutorial misconduct and has worked to defeat efforts to repeal or dilute the measure.

The Kentucky Bar Association adopted Ethics Opinion E-435 in late 2012, shortly after NACDL adopted Formal Opinion 12-02, cited in today’s Kentucky Supreme Court decision. The NACDL opinion determined that it is not ethical for a criminal defense lawyer to participate in a plea agreement that bars collateral attacks in the absence of an express exclusion for prospective claims based on ineffective assistance of counsel. The NACDL opinion further states that prosecutors may not ethically propose or require such a waiver. It also describes an attorney’s duty when the government attempts to extract such a waiver.

NACDL filed an important amicus curiae brief joined by numerous legal ethics professors and practitioners in U.S. v. Kentucky Bar Assn. and was also afforded the opportunity to present oral argument before the Supreme Court of Kentucky in this matter.



Domestic Abuse: A Thought Provoking Article

posted by Judge_Burke @ 13:59 PM
September 18, 2014

Thanks to the National Football League, our nation has seen a lot of discussion about domestic violence recently which actually, in the long run, might be good. Surely there are areas the criminal justice system can improve on.

So, when an article is published that suggests we need to be thoughtful about how to improve the criminal justice system, it is worth reading. The Criminal Law Professor’s blog has a posting on an article by Erin R. Collins (New York University School of Law) posted on SSRN:  The Evidentiary Rules of Engagement in the War Against Domestic Violence (New York University Law Review, May 2015, Forthcoming).

Here is the abstract:

Our criminal justice system promises defendants a fair and just adjudication of guilt, regardless of the character of the alleged offense. Yet, from mandatory arrest to “no-drop” prosecution policies, the system’s front-end response to domestic violence reflects the belief that it differs from other crimes in ways that permit or require the adaptation of criminal justice response mechanisms. Although scholars debate whether these differential responses are effective or normatively sound, the scholarship leaves untouched the presumption that, once the adjudicatory phase is underway, the system treats domestic violence offenses like any other crime.

This article reveals that presumption is false. It demonstrates that many jurisdictions have adopted specialized evidence rules that authorize admission of highly persuasive evidence of guilt in domestic violence prosecutions that would be inadmissible in other criminal cases. These jurisdictions unmoor evidence rules from their justificatory principles to accommodate the same iteration of domestic violence exceptionalism that underlies specialized front-end criminal justice policies. The article argues that even though such evidentiary manipulation may be effective in securing convictions, enlisting different evidence rules in our war on domestic violence is unfair to defendants charged with such offenses and undermines the integrity of the criminal justice system. It also harms some of the people the system seeks to protect by reducing the efficacy of the criminal justice intervention and discrediting those complainants who do not support the prosecution.




New Hampshire Joins Other States on Juvenile Offenders

posted by Judge_Burke @ 15:25 PM
September 17, 2014

As first reported in the Sentencing Law & Policy blog, “The New Hampshire Supreme Court in In re Petition of State of New Hampshire, No. 2013-0566 (N.H. Aug. 29, 2014) (available here), declared that the Supreme Court’s Eighth Amendment ruling in Miller v. Alabama should be applied retroactively. Here is how the court’s ruling begins and ends:

In this Rule 11 petition, see Sup. Ct. R. 11, the State appeals the determination of the Superior Court (Smukler, J.) that the rule announced in Miller v. Alabama, 132 S. Ct. 2455 (2012), precluding the imposition of mandatory life-without-the-possibility-of-parole sentences on juvenile offenders under the age of eighteen at the time of their crimes, applies retroactively to the respondents (petitioners in the trial court), Robert Dingman, Eduardo Lopez, Jr., Michael Soto, and Robert Tulloch on collateral review.  We affirm….

We conclude that, pursuant to the Teague framework, the rule announced in Miller constitutes a new substantive rule of law that applies retroactively to cases on collateral review.  Consequently, we find that the respondents are entitled to the retroactive benefit of the Miller rule in post-conviction proceedings.  In light of our decision, we decline to address the respondents’ argument that we should “apply a broader retroactivity doctrine than the federal courts apply.”