Upcoming Webcast

posted by Judge_Burke @ 18:00 PM
January 16, 2015

On February 18, 2015, there will be a jointly sponsored webcast between IAALS and NJC on E-Discovery.  It is available at no cost and will have great information for state court judges.

For more information, and to sign up, go here.

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DNA as Evidence in the Courtroom

posted by Judge_Burke @ 15:30 PM
January 27, 2015

David H. Kaye , Frederick R. Bieber and Damir Primorac (respectively, The Pennsylvania State University Dickinson School of Law, Independent, and Primorac & Partners) have posted DNA as Evidence in the Courtroom (Forensic DNA Applications: An Interdisciplinary Perspective 509-25 (Dragan Primorac & Moses Schanfield eds. 2014)) on SSRN.

Here is the abstract:

This paper appears in Forensic DNA Applications: An Interdisciplinary Perspective, a textbook and reference work on forensic molecular biology prepared for the International Society of Applied Biological Sciences. Originally submitted in January 2012, the chapter outlines the legal principles that govern the admissibility of scientific evidence, briefly surveys the history of legal challenges to forensic DNA typing, and simply identifies some current legal issues in the use of the technology in trials.

 

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More On Plea Bargaining

posted by Judge_Burke @ 15:04 PM
January 26, 2015

The title of this post is the title of this interesting new paper by Brandon Garrett now available via SSRN.

Here is the abstract:

Is a plea bargain a type of confession? Plea-bargaining is often justified as at its core a process involving in-court confession. The U.S. Supreme Court’s early decisions approved plea bargains as something “more than a confession which admits that the accused did various acts.”

I argue in this Article that plea bargains are not confessions — they do not even typically involve detailed admissions of guilt. The defendant generally admits to acts satisfying elements of the crime — a legally sufficient admission to be sure, but often not under oath, and often not supported by an extensive factual record. Because plea bargains typically contain only formulaic admissions, they have limited preclusive impact in future cases. The modern trend is to find issues not precluded by a guilty plea, except perhaps as to elements of the charged offense. The problem with the lack of adjudicated facts arises when other actors later seek to attach collateral consequences on that conviction.

More careful development of the factual record could help to prevent at least some guilty pleas by innocent defendants, but also important, it could produce reforms to more narrowly target the collateral consequences that now attach to entire categories of convictions. That is why I view it as particularly important to understand precisely why plea bargains are not “more than” and are in fact much less than confessions.

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DNA From Misdemeanor Arrestees

posted by Judge_Burke @ 18:00 PM
January 23, 2015

Elizabeth E. Joh (U.C. Davis School of Law) has posted Should Arrestee DNA Databases Extend to Misdemeanors? (Recent Advances in DNA & Gene Sequences, 2015, Forthcoming) on SSRN.

Here is the abstract:

The collection of DNA samples from felony arrestees will likely be adopted by many more states after the Supreme Court’s 2013 decision in Maryland v. King. At the time of the decision, 28 states and the federal government already had arrestee DNA collection statutes in places. Nevada became the 29th state to collect DNA from arrestees in May 2013, and several others have bills under consideration. The federal government also encourages those states without arrestee DNA collection laws to enact them with the aid of federal grants. Should states collect DNA from misdemeanor arrestees as well? This article considers the as yet largely unrealized but nevertheless important potential expansion of arrestee DNA databases.

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A Little Bit of History in North Carolina

posted by Judge_Burke @ 15:00 PM
January 23, 2015

Last week, Sam Ervin IV took the oath to serve on the North Carolina Supreme Court, following in the footsteps of his grandfather.  Sam Ervin Jr. was an associate justice when he was appointed to the Senate in 1954.

See more here.

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Causation in Criminal Law

posted by Judge_Burke @ 16:33 PM
January 22, 2015

Mike C. Materni has posted Rebooting the Discourse on Causation in the Criminal Law: A Pragmatic (and Imperfect) Approach (Criminal Law Bulletin, Volume 50 Issue 6, Winter 2014) on SSRN.

Here is the abstract:

Causation in the criminal law is an extremely complex issue for several reasons. Prime among those reasons is the fact that most scholars who have tackled the issue have done so by searching for a universal, comprehensive solution. This Article starts from the premise that such a solution is unattainable. Rather than embarking in extravagant philosophical inquiries, the Article offers a pragmatic solution to the issue of causation in the criminal law. Applying a methodology that finds validation in the philosophy of science, the Article argues that causation in the criminal law should be constructed in functional terms. Linking the concept of cause to its function within the criminal law, the Article maintains that “cause” should be informed to the idea of necessity, not sufficiency — nor any other idea of “cause,” no matter how strong or even better that idea might be from the perspective of metaphysics. The proposal advanced in this Article, while necessarily imperfect, gives coherence to a concept (that of but for cause) that, as of today, has been thought to be faulty and flawed to the point of inadequacy. Only by understanding causation within this framework it will be possible to move past the flawed dichotomy of “cause in fact” and “proximate cause” and focus on the more delicate policy issues that relate to culpability. While it is not the Article’s goal to be the last word on the subject — indeed, the Article expressly aims to be an initial building block — the Article does clarify several basic (and yet, until now, somewhat obscure) concepts that relate to causation in the criminal law, thus raising the level of discourse and providing a stronger foundation for further debate on the subject.

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After All, It Is Just Kansas

posted by Judge_Burke @ 15:49 PM
January 21, 2015

Jury nullification is interesting to a lot of law students and to a very small niche of the Bar. A few states instruct juries on their right to nullification, but the prevailing rule is say nothing.

So, perhaps this is just about Kansas, but it is interesting.  Recently, Professor Eugene Volokh wrote for the Washington Post:

From the Kansas Supreme Court’s decision in State v. Smith-Parker (Kan. Dec. 24, 2014):

The [jury] instruction read: “If you do not have a reasonable doubt from all the evidence that the State has proven murder in the first degree on either or both theories, then you will enter a verdict of guilty.” (Emphasis added.) According to Smith-Parker, the instruction should have been identical to the general reasonable doubt instruction that was also given. That instruction said: “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) …

This court addressed a similar instruction challenge in State v. Lovelace, 227 Kan. 348, 607 P.2d 49 (1980). The questioned Lovelace instruction told jurors that they “must” find defendant guilty if they did had no reasonable doubt on the elements of the crime. This court rejected Lovelace’s argument that “must” commanded the jury to find the defendant guilty and noted that “should” and “must” could be used interchangeably in criminal instructions. Smith-Parker acknowledges this precedent but argues that it was wrongly decided. We agree with him and overrule the Lovelace holding.

Although we have rejected a defense argument that a criminal jury should be instructed on its inherent power of nullification, the district judge’s instruction in this case went too far in the other direction. It essentially forbade the jury from exercising its power of nullification. Both the wording of the instruction at issue in Lovelace — “must” — and the wording at issue here — “will” — fly too close to the sun of directing a verdict for the State. A judge cannot compel a jury to convict, even if it finds all elements proved beyond a reasonable doubt.

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Vanity License Plates & The First Amendment

posted by Judge_Burke @ 15:00 PM
January 20, 2015

Nothing requires states to offer vanity plates…other than the desire to get additional revenue. But, they can cause legal problems too.

The Constitutional Law Professor’s blog reports:

The United States Supreme Court has granted certiorari in Walker v. Texas Sons of Confederate Veterans involving a First Amendment challenge to the denial of a specialty license plate that would display the confederate flag to the Sons of Confederate Veterans.

The Fifth Circuit’s divided panel opinion, authored by Judge Edward Pardo, reversed the district judge’s grant of summary judgment to Texas and concluded that the denial of a specialty license plate bearing a Confederate flag symbol constituted impermissible viewpoint discrimination under the First Amendment. The majority concluded that a “reasonable observer” of the license plate would believe it was the speech of the automobile’s owner and not the government, and thus Texas cannot constitutionally allow some viewpoints to be expressed on the license plates but not others. Dissenting, Judge Jerry Smith contended that the doctrine of government speech articulated in the Court’s unanimous Pleasant Grove City v. Summum (2009) controls: there is no meaningful distinction between the privately placed monuments in Summum and the license plates in Texas.

The constitutional status of license plates – - – whether they are specialty, vanity, or state-mandated – - – has been fertile ground for First Amendment litigation. As we’ve discussed, the Fourth Circuit recently held that North Carolina’s provision of a “Choose Life” specialty license plate violated the First Amendment; the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring “good taste”; a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.

What might be called the First Amendment doctrine of license plates, following from the classic First Amendment case of Wooley v. Maynard (1977) involving compelled speech has become more complex with the introduction of specialty and vanity license plates. Such plates do produce revenue for states, but also provoke First Amendment concerns and expensive litigation. In granting certorari, the Court has the opportunity to settle the matter. Or perhaps the Court will further complicate the issue of expressive license plates on our cars.

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Court Funding News

posted by Judge_Burke @ 15:36 PM
January 16, 2015

Governor Jerry Brown’s latest budget proposal no doubt helps treat the California judiciary’s wounded budgets.

The Governor’s budget raises the state court system’s budget from last year’s $3.29 billion to $3.47 billion, with most of that increase headed to the 58 trial courts around California hit hardest by past cutbacks.  Courts in counties across the state have been forced to reduce public hours, lay off employees and shutter remote courthouses as a result of prior cuts that at one point exceeded $1 billion over several years

Meanwhile, things are not as good in Kansas. The Kansas Supreme Court plans to propose legislation this session that would allow it to tap its “electronic management filing fund” to fill a large hole in this year’s operating budget, according to Chief Justice Lawton Nuss.

Kansas courts are currently looking at a $3.6 million funding shortfall to finish out this fiscal year. If allowed to use its e-filing money, that would cover $3.1 million of the shortage, Nuss says. The courts would make up the rest primarily by not filling a large number of vacant positions. The court sent a letter out to judicial branch employees earlier this week explaining its decision. The letter notes diverting the money won’t hurt the continuing move to electronic filing because the court system can’t do any additional work on developing the system this year anyway.

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Mens Rea for Complicity

posted by Judge_Burke @ 15:00 PM
January 15, 2015

For most judges, you rarely need to think about mens rea in deciding probable cause or in drafting jury instructions. But when you do need to think about it, the issue can be confounding.

One resource is a recent posting by Alex F. Sarch (University of Southern California – Center for Law and Philosophy) Condoning the Crime: The Elusive Mens Rea for Complicity on SSRN.

Here is the abstract:

There is a long history of disagreement about what the mens rea for complicity is. Some courts take it to be the intention that the underlying crime succeed, while others take mere knowledge of the underlying crime to be sufficient. Still others propose that the mens rea for complicity tracks the mens rea of the underlying crime — the so-called “derivative approach.” However, as argued herein, these familiar approaches face difficulties. Accordingly, we have reason to continue our search for the elusive mens rea for complicity. This paper develops a new account of the mens rea for complicity, drawing on an older approach informed by agency law principles. In particular, I argue that a distinct attitude of condoning the underlying crime is best seen as the mens rea for complicity. This approach yields a more principled framework for determining when accomplice liability is warranted than existing approaches. Moreover, it demonstrates that certain reforms to the current legal regime are warranted: most importantly, that a distinction between full and lesser complicity be recognized.

 

 

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