Judge Alex Kozinski wrote a very interesting commentary on forensic science in criminal cases for The Wall Street Journal:
“The White House will release a report Tuesday that will fundamentally change the way many criminal trials are conducted. The new study from the President’s Council of Advisors on Science and Technology (PCAST) examines the scientific validity of forensic-evidence techniques—DNA, fingerprint, bitemark, firearm, footwear and hair analysis. It concludes that virtually all of these methods are flawed, some irredeemably so.
Americans have long had an abiding faith in science, including forensic science. Popular TV shows like “CSI” and “Forensic Files” stoke this confidence. Yet the PCAST report will likely upend many people’s beliefs, as it should. Why trust a justice system that imprisons and even executes people based on junk science?
Only the most basic form of DNA analysis is scientifically reliable, the study indicates. Some forensic methods have significant error rates and others are rank guesswork. “The prospects of developing bitemark analysis into a scientifically valid method” are low, according to the report. In plain terms: Bitemark analysis is about as reliable as astrology. Yet many unfortunates languish in prison based on such bad science.
Even methods valid in principle can be unreliable in practice. Forensic scientists, who are often members of the prosecution team, sometimes see their job as helping to get a conviction. This can lead them to fabricate evidence or commit perjury. Many forensic examiners are poorly trained and supervised. They sometimes overstate the strength of their conclusions by claiming that the risk of error is “vanishingly small,” “essentially zero,” or “microscopic.” The report calls such claims “scientifically indefensible,” but jurors generally take them as gospel when presented by government witnesses who are certified as scientific experts.
The full piece can be found here.
“I could shoot you in the middle of Mardi Gras,” Libby Parsons (played by Ashley Judd) tells her husband Nick in the 1999 thriller Double Jeopardy, “and they can’t touch me.” Nick had faked his own death and framed Libby for the non-existent murder. Now, holding a pistol to his head, she invokes one of Americans’ most beloved rights—the Fifth Amendment guarantee that no one shall be “subject for the same offence to be twice put in jeopardy of life or limb.”
Learning the law from The Atlantic may seem odd to some judges; although The Atlantic is a well written and popular publication, it is not the Harvard Law Review. But, this is an article well worth reading.
Richard Zorza has a new paper on incentives in access to justice that has been published in the Georgetown Journal of Legal Ethics. Here it is.
The abstract is:
Most of the current deregulation discussion focuses on permitting both non-lawyers and lawyers to do more than currently authorized. While such changes would presumably contribute to solving the problem of increasing access to justice while maintaining quality and consumer protection, such discussions alone are unable to offer any realistic hope of achieving the 100 percent access to justice services for all envisioned by the recent Resolution of the Conference of (State Court) Chief Justices and the Conference of State Court Administrators. This Article discusses the potential for fully achieving that 100 percent goal by integrating broad regulatory changes with largely positive economic incentives on courts, bar and legal aid designed to increase efficiency and reduce costs, and with politically achievable ways of bringing in additional resources.
The five proposed solutions are:
A. Releasing non-profit legal-serving entities from almost all regulation, while moving the subsidy system of legal aid to a genuinely competitive model;
B. Deploying a mix of more limited de-regulation on the bar as a whole, combined with inter-related mandated sliding fees and broad tax incentives, for both litigants and providers;
C. Maintaining almost all regulation, but placing the obligation of ensuring and providing 100 percent access to justice services on the bar as a whole, while giving the bar the authority to tax its members to fulfill that obligation and modify regulation;
D. Internalizing all costs of access to justice into the court system, in order to incentivize court simplification and some appropriate deregulation; and
E. Allowing for broad National Technology Limited Practice Licenses on condition of free services for the poor and reasonable ones for middle income, and with appropriate regulatory relaxations.
This Article proposes and applies a seven question conceptual framework for assessing these approaches and their long-term utility:
- Does it ensure that everyone with significant legal need would be appropriately served, regardless of financial or other barriers?
- Does it provide the resources to fill the resource gap?
- Would it meet the political and economic requirements of being highly cost effective
- Would services be varied, flexible and matched to need?
- Would the solution incentivize changes in the system as a whole?
- Would the solution protect the consumer, either through the relevant traditional formal values of the profession or through some other means such as a structuring of market incentives?
- Could one be sure that any new resource mechanism would not introduce or exacerbate any additional general non-neutrality into the system?
There has been some research by the Brennan Center for Justice which suggests that judges who are up for election tend to sentence more harshly. But what if the judge is an avid college football fan and the judge’s favorite team loses in an upset? Surely that makes no difference in the sentencing outcome.
From a report in Inside Higher Education:
Judges whose college football teams lose in an upset fashion frequently let their emotions over the loss affect sentencing decisions, according to a new working paper published by the National Bureau of Economic Research.
To reach their conclusion, Naci Mocan and Ozkan Eren, both economics professors at Louisiana State University, examined every defendant case file from 1996 to 2012 for juveniles in the state of Louisiana. Each file contained information about the defendant, his or her offense, and sentence length. Most of the files also listed where the judges in the cases went to college and law school. The researchers then compared this information to LSU football game records.
Mocan and Eren found that in the week following LSU’s football team losing a game it was expected to win, judges with bachelor’s degrees from LSU doled out harsher sentences, especially to black juveniles. In some cases, a surprise LSU loss resulted in a sentence that was as much as 74 days longer than cases following an LSU win or cases decided by judges who graduated from other institutions. In total, the researchers said, juveniles spent an extra 1,332 days in custody or on probation because a judge may have been in “emotional shock” over an upset.
“These results provide evidence for the impact of emotions in one domain on a behavior in a completely unrelated domain among a uniformly highly educated group of individuals (judges), with decisions involving high stakes (sentence lengths),” Mocan and Eren wrote. “They also point to the existence of a subtle and previously unnoticed capricious application of sentencing.” So far there is no reliable research on the effect professional football has on sentencing practices of judges.
A special thanks to Judge Wayne Gorman. Determining who is telling the truth is not easy. Inherently, judges or juries can make mistakes driven by implicit bias or by myths about factors that suggest someone is telling the truth. Judge Gorman came across a recent New Zealand case that raises the issue of how juries should be instructed on demeanor:
In Taniwha v. The Queen  NZSC 121, September 8, 2016, the accused was convicted in a trial before a jury of a number of physical and sexual assaults. In addressing the jury, the prosecutor referred to the complainant’s reaction when shown a photograph and suggested that her reaction “wasn’t made up, that wasn’t faked.”
On appeal, the accused argued that the trial judge ought to have provided the jury with a “tailored demeanour direction” (i.e., explaining that demeanour in the witness stand should not be over-emphasized).
The appeal was dismissed. The Supreme Court of New Zealand concluded that “the Judge’s failure to give a tailored demeanour direction in summing up to the jury” did not give “rise to a miscarriage of justice” (at paragraph55).
In rendering its judgment, however, the Supreme Court suggested that there is “research which indicates that a person’s demeanour when giving evidence in court generally provides little or no assistance to a fact-finder charged with determining whether or not the witness is telling the truth. A witness who presents as confident, articulate and honest may be mistaken or dishonest; a witness who presents as diffident, hesitant or awkward may be telling the truth and their evidence may be accurate. Not only can appearances be deceptive, but fact-finders may over-estimate their ability to recognise those who are truthful from those who are not, by, for example, relying on unreliable behaviours such as fidgeting or looking away.”
The Supreme Court suggested that in instructing a jury on demeanour, the judge should identify “factors which will help jurors to determine whether a witness is telling the truth. This should reflect the particular circumstances of the case as far as they can be assessed in advance, but could include reference to considerations such as”:
(a) Whether the witness’s evidence is consistent with the evidence of other witnesses which the jury has accepted.
(b) Whether the witness’s evidence is consistent with objective evidence such as documents or text messages, and if it is not, what explanation is offered for any inconsistencies.
(c) Whether the witness’s account is inherently plausible – does it make sense? Is it likely that people would have acted in the way suggested?
(d) Whether the witness has been consistent in their account over time and, if not, why not?
The Supreme Court also suggested that “a direction along the following lines could be given”
I must warn you, though, that simply observing witnesses and watching their demeanour as they give evidence is not a good way to assess the truth or falsity of their evidence. For example, a witness may not appear confident or may hesitate, fidget or look away when giving evidence. That doesn’t necessarily mean that their evidence is untruthful. The witness may be understandably nervous giving evidence in an unfamiliar environment in front of unknown people. Or there may be cultural reasons for the way a witness presents. On the other hand, a witness may appear confident, open and persuasive but nevertheless be untruthful. And remember that even an honest witness can be mistaken.
Things like gestures or tone of voice may sometimes help you to understand what the witness actually means. But you should be cautious about thinking that they will help you much in determining whether or not the witness is telling the truth.
Estimate of the Day:
Incarceration in America costs more than $1 trillion per year, a new study concludes. That’s more than 10 times the $80 billion figure generally cited as the cost of running the nation’s corrections systems.
Source: St. Louis Post-Dispatch
Kathleen M. Knudsen (Regent University – School of Law) has posted The Juror’s Sacred Oath: Is There a Constitutional Right to a Properly Sworn Jury? (32 TOURO L. REV. 489) on SSRN.
Here is the abstract:
On August 12, 2012, in United States v. Turrietta the Tenth Circuit upheld a conviction by an unsworn jury under the doctrine of harmless error. By contrast, in 2007, in Spencer v. State, the Georgia Supreme Court held that a verdict by an unsworn jury was invalid, and because jeopardy never attached, the prosecution could re-prosecute a claim on which the defendant had been previously acquitted by an unsworn jury. The concept that an unsworn jury could convict but could not acquit runs fundamentally contrary to constitutional criminal procedural protections. This article argues that Federal Circuit Courts and the United States Supreme Court should rule on this issue and provide a clear precedent because district courts have denied that defendants have a constitutional right to a properly sworn jury due to the lack of clear precedential cases on this issue.
If there is a class of defendants who generate little sympathy from legislatures and judges, the “winner” is likely to be sex offenders. There is an understandable desire to monitor the defendant’s behavior.
Doug Berman at Sentencing Law & Policy excerpts this interesting case. From the excerpt:
Proponents of using the penile plethysmograph correlate arousal data to deviant sexual behavior by assuming that individuals with a history of sexual offenses who respond to illicit sexual stimuli are likely to react in furtherance of their responses. There is no scientifically accepted data presented to justify this assumption, nor does it have any logical basis.
. . .
[A]dministering a penile plethysmograph test necessitates the person administering the test to be engaged in the possession, use and distribution of child pornography. There is no exception in the statute to exclude therapeutic purposes or intent from culpability.
. . .
The presuppositionless assumption is that any “arousal level” occasioned by the exposure to child pornography stimuli is deviant because convicted sex offenders are unable to resist or subdue their impulses. Urges, however, are not always overwhelming. Otherwise, there would be no opportunity for moral decisions or even so-called enlightened self-interest decisions to be made in the crucible of an experience.
How neighboring states approach “marijuana interdiction” is an interesting issue. Nebraska and Oklahoma sued Colorado unsuccessfully over the legalization issue, and apparently the police in Kansas simply decided to stop and search Colorado residents who happen to drive though Kansas. Now the 10th Circuit Court of Appeals has held that police officers cannot stop and search vehicles belonging to out-of-state motorists simply because of where they are registered, including states where marijuana use is legal.
By a 2-1 vote, the Court said two Kansas Highway Patrol officers violated the constitutional rights of Colorado motorist Peter Vasquez in December 2011 by pulling him over and searching his car after he had been driving alone at night on Interstate 70.
The officers relied heavily on Vasquez’s residency to justify the search, which uncovered nothing illegal, saying Colorado was a known “drug source” where marijuana is legal.
The Court said that would justify searching motorists from the 25 U.S. states that permit marijuana use for medical purposes, and the four states, including Colorado, plus Washington, D.C., where recreational use is allowed.
“It is time to abandon the pretense that state citizenship is a permissible basis upon which to justify the detention and search of out-of-state motorists, and time to stop the practice of detention of motorists for nothing more than an out-of-state license plate,” Circuit Judge Carlos Lucero wrote.
“Absent a demonstrated extraordinary circumstance, the continued use of state residency as a justification for the fact of or continuation of a stop is impermissible,” he added.
You can access the ruling at this link.
We all make decisions about what is proper and improper in voir dire questions, particularly when it comes to race. In my experience, voir dire is among the most divisive areas where judges are literally all over the map. Nevertheless, I thought I’d share this and ideally prompt some commentary from readers about how to best conduct voir dire on the issue of race. What follows is taken from a scholarly article, but I think it lends support to my belief that you need to give lawyers a wide berth in voir dire when it comes to questioning about race:
It is well established that Americans, particularly whites, strongly associate criminal activity with race and race with criminal activity. That is, blacks are generally characterized as aggressive, hostile, criminal, and violent by members of the public (Sniderman and Piazza 1993Sniderman, P., and T. Piazza. 1993. The Scar of Race. Cambridge: Harvard University Press.; Hurwitz and Peffley 1997Hurwitz, J., and M. Peffley. 1997. “Public Perceptions of Race and Crime: The Role of Racial Stereotypes.” American Journal of Political Science 41 (2): 375–401.10.2307/2111769; Peffley and Hurwitz 1998Peffley, M., and J. Hurwitz. 1998. “Whites’ Stereotypes of Blacks: Sources and Political Consequences.” In Perception and Prejudice: Race and Politics in the United States, edited by J. Hurwitzand M. Peffley, 996–1012. New Haven, CT: Yale University Press.). For example, in Devine and Elliot’s (1995Devine, P. G., and A. J. Elliot. 1995. “Are Racial Stereotypes Really Fading? The Princeton Trilogy Revisited.” Personality and Social Psychology Bulletin 21: 1139–1150.10.1177/01461672952111002) follow-up study on Princeton students, 147 white students were provided a checklist comprised of 93 adjectives and asked to mark those that represent stereotypes about blacks. They found that ‘hostile’ and ‘criminal’ were in the top 10 adjectives frequently identified to describe African-Americans. Moreover, in their examination of public attitudes toward youth, race, and crime, Soler (2001Soler, M. 2001. Public Opinion on Youth, Crime and Race: A Guide for Advocates. Washington, DC: Building Blocks for Youth.) found that over 34% of respondents agreed that black juveniles are more likely to commit crime than white juveniles, and 35% agreed that black lows youth are more prone to violence than young people of other races.
Research also shows that the public overestimates the proportion of crimes committed by people of color. Using national survey data, Chiricos et al. (2004Chiricos, T., K. Welch, and M. Gertz. 2004. “Racial Typification of Crime and Support for Punitive Measures.” Criminology 42 (2): 358–390.10.1111/crim.2004.42.issue-2) discovered that a racially diverse group of respondents exaggerated black involvement in violent crime and burglary. Specifically, respondents estimated that 40% of people who commit violent offenses and 38% of people who are involved in burglary are black; however, crime victimization surveys showed these rates to be 29 and 32%, respectively. Based on the results of a nationally representative survey, Pickett et al. (2012Pickett, J. T., T. Chiricos, K. M. Golden, and M. Gertz. 2012. “Reconsidering the Relationship between Perceived Neighborhood Racial Composition and Whites’ Perceptions of Victimization Risk: Do Racial Stereotypes Matter?” Criminology 50 (1): 145–186.10.1111/crim.2012.50.issue-1) also discovered that white Americans overestimated black participation in burglaries, illegal sale of drugs, and juvenile crime by 20 to 30%. Overall, studies suggest that whites and respondents from other racial and ethnic backgrounds racially typify crime.
Some scholars assert the criminalization of black people is facilitated in large part by racially biased media representations of crime. Media messages are potent tools in the construction of ‘otherness’ and an ‘us vs. them’ discourse, common in crime stories, where ‘us’ – the good guys – need to be wary of ‘them’ – the predatory criminal, who is often portrayed as animalistic, vengeful, violent, and a member of a racial/ethnic minority group (Barak 1994Barak, G. 1994. “Between the Waves: Mass-Mediated Themes of Crime and Justice.” Social Justice 21: 133–147.). In her examination of local news programming in Chicago, Entman (1992Entman, R. M. 1992. “Blacks in the News: Television, Modern Racism and Cultural Change.” Journalism & Mass Communication Quarterly 69: 341–361.10.1177/107769909206900209) found that 84% of crime stories about African-American suspects involved violent crime compared to 71% of white offenders. Furthermore, 38% of black suspects were featured while being physically held or restrained by officers compared with 18% of white suspects being featured in similar circumstances. Because the public relies on the mass media as their primary source of information about crime, the high volume of crime news that involves members of specific racial and ethnic groups is enough to convince the average person that the face of crime is colored (Rome 2002Rome, D. 2002. “Stereotyping by the Media: Murderers, Rapists, and Drug Addicts”. In Images of Color, Images of Crime, edited by C. R. Mann and M. Zatz, 71–81. 2nd ed. Los Angeles, CA: Roxbury.). Indeed, the stereotypical image of blacks as a criminal threat has led to perceptions of the ‘criminalblackman’ (Russell 1998Russell, K. K. 1998. The Color of Crime. New York: New York University Press.), which play into the public’s fear of crime.
Spurred by mass media, criminalized depictions of black males have produced a host of damaging consequences, including the perpetuation of negative stereotypes about blacks. However, these images and ideologies of black criminality are not new. During the earliest periods of American development, European colonists transported Africans to the New World as chattel slaves, a degradation that lasted well into the twentieth century (Bell 1992Bell, D. A. 1992. Race, Racism, and American Law. Boston, MA: Little Brown., 2). In order to justify their enslavement, black people had to be viewed as inferior beings, and were often portrayed as animalistic and violent ‘savages’ who were inherently criminal (Fishman 2006Fishman, L. T. 2006. “The Black Boogeyman and White Self-Rightousness.” In Images of Color, Images of Crime, edited by C. R. Mann, M. S. Zataand N. Rodriguez, 197–211. New York: Oxford University Press.; Unnever and Gabbidon 2011Unnever, J. D., and S. L. Gabbidon. 2011. Race, Racism, and Crime. New York: Taylor & Francis.). The legacy has persisted with images of ‘menacing’ blacks, most recently revived in the 1970s and 1980s in the context of the ‘War on Drugs,’ which some have come to see as a ‘War on blacks’ (Nunn 2002Nunn, Kenneth B. 2002. “Race, Crime and the Pool of Surplus Criminality: Or Why the ‘War on Drugs’ Was a ‘War on Blacks’.” Journal of Gender Race and Justice 6: 381–445.). That is, blacks have borne the brunt of the drug war, as they are disproportionately arrested, prosecuted, convicted, and imprisoned for drug offenses (Tonry 1995Tonry, M. 1995. Malign Neglect: Race, Crime, and Punishment in America. New York: Oxford University Press.; Alexander 2010Alexander, M. 2010. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press.). Ultimately, it is argued that the structural inequalities facing many blacks is rooted in the nation’s history, and is a product of, and integral to, their ongoing racialization (Wacquant 2002Wacquant, L. 2002. “From Slavery to Mass Incarceration: Rethinking the ‘Race Question’ in the US.” New Left Review 13: 41–60.; Omi and Winant 2015Omi, M., and H. Winant. 2015. Racial Formation in the United States. 3rd ed. New York: Routledge.).
The historical criminalization of blacks coupled with excessive news coverage portraying African-Americans as criminal is integral to the formation of implicit bias (Staats and Patton 2013Staats, C., and C. Patton. 2013. State of the Science: Implicit Bias Review. The Kirwan Institute. http://www.kirwaninstitute.osu.edu/reports/2013/03_2013_SOTS-Implicit_Bias.pdf.). Implicit bias refers to the attitudes and stereotypes that impact our understanding, actions, and decision-making processes in an unconscious manner (Staats and Patton 2013Staats, C., and C. Patton. 2013. State of the Science: Implicit Bias Review. The Kirwan Institute. http://www.kirwaninstitute.osu.edu/reports/2013/03_2013_SOTS-Implicit_Bias.pdf.). Research with police officers has examined implicit bias in law enforcement settings. Correll et al. (2007Correll, J., B. Park, C. M. Judd, B. Wittenbrink, M. S.Sadler, and T. Keesee. 2007. “Across the Thin Blue Line: Police Officers and Racial Bias in the Decision to Shoot.” Journal of Personality and Social Psychology 92 (6): 1006–1023.10.1037/0022-3522.214.171.1246) used video game simulation in which armed black and white men appeared, and instructed officers from the Denver Police Department (who were predominately white) to shoot armed targets as quickly as possible. They found that officers shot armed black suspects more quickly than armed white suspects, but that they were less likely to mistakenly shoot at unarmed black suspects than members of the general public. Likewise, another study of police officers from across the USA found that not only were officers quicker to shoot black suspects than white suspects but also that the officer’s accuracy was higher in scenarios involving African-Americans than for scenarios involving whites (Sadler et al. 2012Sadler, M. S., J. Correll, B. Park, and C. M. Judd. 2012. “The World is Not Black and White: Racial Bias in the Decision to Shoot in a Multiethnic Context.” Journal of Social Issues 68: 286–313.10.1111/j.1540-4560.2012.01749.x). Automatic implicit bias has also been found to negatively influence officers’ interpretations of blacks’ behavior (as suspicious or aggressive), and the perception of blacks as more blameworthy, thus meriting harsher sanctions (Graham and Lowery 2004Graham, S., and B. S. Lowery. 2004. “Priming Unconscious Racial Stereotypes about Adolescent Offenders.” Law and Human Behavior 28 (5): 483–504.10.1023/B:LAHU.0000046430.65485.1f; Richardson 2011Richardson, L. S. 2011. “Arrest Efficiency and the Fourth Amendment.” Minnesota Law Review 95 (6): 2035–2098.). Available evidence suggests that the general public is aware of such bias on the part of law enforcement.