Driving While Stoned

posted by Judge_Burke @ 14:30 PM
May 18, 2018

Mark A.R. KleimanTyler JonesCeleste Miller and Ross Halperin (BOTEC Analysis, LLC, BOTEC Analysis, LLC, BOTEC Analysis, LLC and New York University Marron Institute of Urban Management) have posted Driving While Stoned: Issues and Policy Options on SSRN.

Here is the abstract:

THC is the intoxicant most commonly detected in US drivers, with approximately 13% of drivers testing positive for marijuana use, compared to the 8% that show a measurable amount of alcohol (NHTSA, 2015). (The two figures are not strictly comparable because cannabis remains detectable for much longer than alcohol, and also for long after the driver is no longer impaired; therefore, the difference in rates does not show that stoned driving is more common than drunk driving.) Cannabis intoxication has been shown to impair reaction time and visual-spatial judgment.

Many states, including those where cannabis sales are now permitted by state law, have laws against cannabis-impaired driving based on the drunk-driving model, defining criminally intoxicated driving as driving with more than a threshold amount of intoxicant in one’s bloodstream—a per se standard—as opposed to actual impairment. That approach neglects crucial differences between alcohol and cannabis in their detectability, their pharmacokinetics, and their impact on highway safety.

Cannabis intoxication is more difficult to reliably detect chemically than alcohol intoxication. A breath alcohol test is (1) cheap and reliable; (2) sufficiently simple and non-invasive to administer at the roadside; and (3) a good proxy for alcohol in the brain, which in turn is (4) a good proxy for subjective intoxication and for measurable driving impairment. In addition, (5) the dose-effect curve linking blood alcohol to fatality risk is well-established and steep.

None of those things is true for cannabis. A breath test remains to be developed. Oral-fluid testing can demonstrate recent use but not the level of impairment. A blood test requires a trained phlebotomist and therefore a trip to a medical facility, and blood THC levels drop very sharply over time-periods measured in minutes. Blood THC is not a good proxy either for recency of use or for impairment, and the dose-effect curve for fatality risk remains a matter of sharp controversy. The maximum risk for cannabis intoxication alone, unmixed with alcohol or other drugs, appears to be more comparable to risks such as talking on a hands-free cellphone (legal in all states) than to driving with a BAC above 0.08, let alone the rapidly-rising risks at higher BACs. Moreover, the lipid-solubility of THC means that a frequent cannabis user will always have measurable THC in his or her blood, even when that person has not used recently and is neither subjectively intoxicated nor objectively impaired. That suggests criminalizing only combination use, while treating driving under the influence of cannabis (however this is to be proven) as a traffic offense, like speeding.

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So…Is it Okay to Lie?

posted by Judge_Burke @ 14:50 PM
May 17, 2018

Years ago I had a murder case. The defendant claimed that after his Miranda warning he asked for a lawyer. He claimed he not only asked for a lawyer, but he named the lawyer. The lawyer was representing him on a Workers Comp case. Pretty believable, I thought. The police officer testified that there was no request for a lawyer but he also admitted he had lied to the defendant about critical facts in the case. So, who do you believe?

Situational ethics happen, but if the officer was prepared to lie to the defendant why shouldn’t I suspect he would lie to me? Rinat Kitai-Sangero (College of Law and Business) has posted Extending Miranda: Prohibition on Police Lies Regarding the Incriminating Evidence (54 San Diego Law Review 611 (2017)) on SSRN.

Here is the abstract:

This article addresses whether lying to suspects during interrogations regarding incriminating evidence is a legitimate deceit. Despite the condemnation of lying, lying to suspects during interrogations is a common phenomenon, and has even been dubbed an “art”. This article argues that lies of this type are illegitimate because they create an increased risk of false confessions and because they force suspects in general, and innocent suspects in particular, to shape their defense in view of false evidence. Consequently, lies infringe upon fundamental principles of constitutional criminal law, such as the right to remain silent, the presumption of innocence, and the imposition of the obligation to prove the accusations on the prosecution. All the arguments against using lies ultimately revolve around the linkage between lies and the obligation imposed on the state to prove guilt.

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This post comes from Judge Wayne Gorman who may well be one of the most prolific judicial writers in Canada and the United States. How trial judges handle self-representation is a difficult task for judges–and is particularly difficult in criminal cases. In the back of the trial judge’s mind is the old adage that a lawyer who represents himself has a fool for a client.

It is quite easy to become impatient with self-represented litigants, so Judge Gorman’s synopsis of a recent Canadian case is useful. Judge Gorman wrote:

“In R. v. Wyatt, 2018 BCCA 162, April 24, 2018, the accused was convicted of the offence of aggravated assault.  The accused appealed from conviction, arguing that the trial judge failed to provide him with adequate assistance.  The Crown agreed.

The British Columbia Court of Appeal suggested that the accused’s “lack of knowledge of the trial process was apparent.” It pointed to what it described as “two important misconceptions that governed his conduct of his defence”:  

a) He seemed to mistakenly believe that if there was no witness to corroborate the victim’s version of events, that it would not be proven and the case would be dismissed. 

b) The first important misconception played into another important misconception. Several statements he made during the trial indicated that he thought that he could simply put into evidence a statement he gave the police which would “kill the case” against him, or that his denial of the offences would be in evidence, without the necessity of him testifying.

In allowing the appeal, the Court of Appeal indicated that trial judges “have an obligation to provide some minimal assistance to self-represented accused persons… Providing the necessary minimal judicial assistance to a self-represented accused can be difficult, as on occasion – and of course most definitely not always – persons accused of a crime may be unwilling to listen, or have slight intellectual or psychological challenges that are heightened in the stressful atmosphere of the courtroom. A judge presiding over a criminal trial with a self-represented accused must remain neutral and cannot become the lawyer for the accused.”

The Court of Appeal concluded that the trial was “unfair” (at paragraphs 15 to 17):

The judge did not address Mr. Wyatt’s apparent misconception and legal error that the victim’s evidence needed to be corroborated in order for there to be a conviction. 

As for Mr. Wyatt’s own evidence, the judge did carefully and correctly explain to Mr. Wyatt that if he testified he would become subject to cross-examination. However, the record shows that several times in the trial Mr. Wyatt referred to his statement to the police, and other witness statements to the police. His comments indicated he thought that these statements were “in the file” and were something he could rely upon. He appeared not to realize until the end of the trial that the judge did not have the police file with these statements in front of her, as something she could consider. 

In my respectful view some step was required by the trial judge to correct the two important misconceptions held by Mr. Wyatt as to the law and process, as these were fundamental to his ability to bring out his defence. I am of the view that the failure to provide assistance to Mr. Wyatt in this regard made the trial unfair.”

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Learning from Other Judges’ Mistakes

posted by Judge_Burke @ 14:30 PM
May 1, 2018

The video is brutal. Many readers have by now likely seen or heard about a Florida judge who, eight days ago, ranted and raged at an ailing defendant pushed into court in a wheelchair. Now the defendant is dead and the judge has resigned. MIAMI HERALD.

The judge had planned to retire anyway, but surely this is not the note one wants upon retirement. Regrettably, abusive behavior by judges happens. It gets reported like this one did and the rest of the judiciary says something to the effect of, “what was he or she thinking?” The fact is, these judges most often were not thinking. Very few judges are trained in how to deescalate a situation. We know that the police at least attempted in recent years to address deescalation strategies. Emergency room medical personnel are light years ahead of both the police and judges.

Judges need to understand how to manage other people’s emotions as well as their own. There are academics who study this aspect of judges, but we could use more study and–just as important–we need to ensure the academic study is read by judges. Anger, for example, is an emotion judges need to understand and saying you are never going to get angry may well be naive. But, contempt of people who appear in court is an emotion that is dangerous and can lead to the behavior seen in this video.

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Compassion for Juveniles or Common Sense?

posted by Judge_Burke @ 14:30 PM
April 30, 2018

This post is from the Sentencing Law & Policy blog written by Professor Douglas Berman. But, before you read it, think of context. In recent years the United States Supreme Court has issued rulings regarding sentencing of juvenile offenders and the necessity to take into account their age. The Supreme Court of New Jersey handed down a lengthy unanimous opinion in Interest of C.K., No. A-15-16 (N.J. April 24, 2018) (available here) declaring that the state’s sex-offender registry law is unconstitutional as applied to some juvenile offenders.

Here is how the opinion begins:

Juveniles adjudicated delinquent of certain sex offenses are barred for life from seeking relief from the registration and community notification provisions of Megan’s Law. N.J.S.A. 2C:7-1 to -11, -19; N.J.S.A. 2C:7-2(g).  That categorical lifetime bar cannot be lifted, even when the juvenile becomes an adult and poses no public safety risk, is fully rehabilitated, and is a fully productive member of society.  Defendant C.K. was adjudicated delinquent for sex offenses committed more than two decades ago and now challenges the constitutionality of N.J.S.A. 2C:7-2(g)’s permanent lifetime registration and notification requirements as applied to juveniles.

Subsection (f) of N.J.S.A. 2C:7-2 subjects all sex offenders, including juveniles, to presumptive lifetime registration and notification requirements.  Unlike subsection (g), however, subsection (f) allows a registrant to seek relief from those requirements fifteen years after his juvenile adjudication, provided he has been offense-free and is “not likely to pose a threat to the safety of others.”  Subsection (g) imposes an irrebuttable presumption that juveniles, such as defendant, are irredeemable, even when they no longer pose a public safety risk and are fully rehabilitated.

The record in this case reveals what is commonly known about juveniles — that their emotional, mental, and judgmental capacities are still developing and that their immaturity makes them more susceptible to act impulsively and rashly without consideration of the long-term consequences of their conduct.  See State v. Zuber, 227 N.J. 422 (2017).  The record also supports the conclusion that juveniles adjudicated delinquent of committing sex offenses, such as C.K., who have been offense-free for many years and assessed not likely to reoffend, pose little risk to the public. Indeed, categorical lifetime notification and registration requirements may impede a juvenile’s rehabilitative efforts and stunt his ability to become a healthy and integrated adult member of society.

We conclude that subsection (g)’s lifetime registration and notification requirements as applied to juveniles violate the substantive due process guarantee of Article I, Paragraph 1 of the New Jersey Constitution. Permanently barring juveniles who have committed certain sex offenses from petitioning for relief from the Megan’s Law requirements bears no rational relationship to a legitimate governmental objective.  In the absence of subsection (g), N.J.S.A. 2C:7-2(f) provides the original safeguard incorporated into Megan’s Law: no juvenile adjudicated delinquent will be released from his registration and notification requirements unless a Superior Court judge is persuaded that he has been offense-free and does not likely pose a societal risk after a fifteen-year look-back period.

Defendant may apply for termination from the Megan’s Law requirements fifteen years from the date of his juvenile adjudication, and be relieved of those requirements provided he meets the standards set forth in N.J.S.A. 2C:7-2(f).

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The Law of Standing & Animals

posted by Judge_Burke @ 14:30 PM
April 27, 2018

Several years ago I posted a piece about standing & elephants (found here). Now, from the 9th Circuit we have more law about animal rights and animal standing.

By Steven D. Schwinn

The Ninth Circuit ruled today that a monkey had Article III standing to sue for copyright infringement. But the court also ruled that the monkey lacked statutory standing under the Copyright Act, so dismissed the claim.

The case, Naruto v. Slater, arose when wildlife photographer David Slater left his camera unattended in a reserve on the island of Sulawesi, Indonesia, to allow crested macaque monkeys to photograph themselves. Naruto, one of the monkeys, did just that, and Slater published his picture in a book of “monkey selfies.” Naruto, through his next of friend PETA, sued for copyright infringement.

The Ninth Circuit ruled that Naruto had Article III standing. The court said that circuit precedent tied its hands–the Ninth Circuit previously ruled in Cetacean Community v. Bush that the world’s whales, porpoises, and dolphins could have Article III standing to sue, although they lacked statutory standing under the relevant environmental statutes–and went on to urge the Ninth Circuit to reverse that precedent.

But the court further held that Naruto lacked statutory standing under the Copyright Act, because that Act doesn’t permit a monkey to sue. It dismissed Naruto’s case on this ground.

The court ruled that PETA didn’t have next-of-friend standing, because it didn’t assert a relationship with Naruto, and because “an animal cannot be represented, under our laws, by a ‘next friend.’”

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Inquiring about Jury Misconduct

posted by Judge_Burke @ 14:30 PM
April 26, 2018

There is a very good resource for judges interested in evidence as evidenced (no pun intended) by this recent post By Evidence ProfBlogger:

Federal Rule of Evidence 606(b) generally provides that jurors are not allowed to impeach their verdict, but subsection (2)(A) provides an exception allowing jurors to testify that “extraneous prejudicial information was improperly brought to the jury’s attention.” A recent case out of the Sixth Circuit shows how social media searches can support a claim that this exception applies.

In United States v. Harris, 881 F.3d 945 (6th Cir. 2018), Talman Harris was convicted of one count of conspiracy to commit securities fraud or wire fraud,  one count of obstruction of justice, and three counts of wire fraud.

On September 6, 2016, Harris received a notification from LinkedIn that other LinkedIn members had recently viewed his LinkedIn profile. Harris opened this email the next day, after the jury had returned its verdict. Shortly thereafter, Harris discovered that one of the persons who viewed his profile was Christian Goleno, a student at Youngstown State University, located in the city where Harris’s trial was conducted. The record is inconclusive regarding the exact date Goleno viewed Harris’s profile, but the September 12, 2016 LinkedIn profile-views-summary page indicates that it was sometime between August 28 and September 12, 2016. Harris’s trial began on August 24, and the jury was discharged on September 7, 2016.

Thereafter, Harris

discovered that Goleno’s Facebook profile featured pictures of her and a juror from Harris’s trial, Juror Number 12 (“Juror 12”), and Juror 12′s profile featured pictures of Goleno. The voir dire transcript confirmed that Goleno was Juror 12′s live-in girlfriend. Goleno and Harris had no personal connection, and Harris’s trial had received little publicity. Thus, Harris concluded that Juror 12 must have discussed the trial with his girlfriend. Harris surmised that Goleno had probably searched his name on Google because his LinkedIn profile was on the first page of search results. Information regarding FINRA’s investigation of Harris, which led to his permanent bar from FINRA, was also on the first page of Google results. The government was precluded from presenting evidence of this investigation during Harris’s trial.

As a result, Harris moved for a hearing to determine whether Juror #12 was exposed to extraneous prejudicial information. While the district court denied the motion, the Sixth Circuit disagreed, concluding that

Harris presented credible evidence that Goleno found his LinkedIn profile, likely from searching for him on Google. The first page of Google results also included prejudicial information that the government was precluded from introducing at trial. Although the district court admonished the jury not to discuss the case with others, under the circumstances here, it is quite possible that Juror 12 told Goleno about the trial, leading her to Google Harris and to potentially communicate her findings to her live-in boyfriend, Juror 12.

Although Harris did not establish that Juror 12 was exposed to unauthorized communication, Harris did present a colorable claim of extraneous influence, which necessitated investigation.

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Rosario: Examining an intriguing rule change about bias in jury selection

By | rrosario@pioneerpress.com | Pioneer Press

Bear with me here. Some columns require a prologue.

In a 1986 ruling about a Kentucky case, the U.S. Supreme Court found that the use of peremptory challenges by prosecutors to bounce potential jurors because of their race violated the equal protection clause under the 14th Amendment to the Constitution.

“The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community,” the court wrote in the Batson vs. Kentucky 7-2 decision. “Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.”

The ruling, however, led to a three-step standard before a challenge to ousting a prospective juror could be, well, successfully challenged, mostly by defense attorneys:

  1. The attorney challenging the peremptory juror strike must “make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.”
  2. The striking party, in most cases but not always the prosecutor, must “come forward with a race-neutral explanation for the challenge.”
  3. Lastly, the court, in this case the presiding judge, must “determine if the defendant has established purposeful discrimination.”

Problem solved, right?

Just a year later after the ruling, prosecutors in Georgia applied that three-step standard and survived challenges to kick all five black prospective jurors in the jury pool from a murder case involving a black defendant. The all-white jury later convicted the man and sentenced him to death.

In 2016, three decades later, the nation’s highest court, though with different justices on the bench, ruled that the challenges in that case were strictly based on race and should have been sustained. It ordered a new trial.

The justices found the cited reasons for eliminating the black jurors, in that case, were, essentially, bogus. One potential black juror was kicked off, according to a published report on the case, because “her age was close to the defendant. She was 34; the defendant was 19. A 21-year-old white man served on the jury with no objection from the prosecution.”

Fast-forward to earlier this month. In a rule change, the Washington state Supreme Court pretty much set aside the Batson standards and will now allow both sides in a criminal and civil case to challenge their counterparts “if they feel they are using improper bias in dismissing potential jurors,” according to a recent article in Colorlines, an online magazine. Moreover, the trial judge in that state will ultimately determine if “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge.”

(Years after Batson) “a growing body of evidence shows that racial discrimination remains rampant in jury selection,” that state’s  ACLU chapter noted in a draft of the rule changes the court mostly adopted.  “In part, this is because Batson recognizes only ‘purposeful discrimination,’ whereas racism is often unintentional, institutional, or unconscious.”

The ACLU also noted that in over 40 cases since Batson, Washington appellate courts have never reversed a conviction based on a trial court’s erroneous denial of a Batson challenge.

“We conclude that our Batson procedures must change and that we must strengthen Batson to recognize these more prevalent forms of discrimination.”

Terri Nelson, legal director for Minnesota’s ACLU chapter, applauded the rule change, which will go into effect statewide in Washington shortly. She believes it’s something Minnesota courts should emulate.

“Absolutely,” Nelson told me. “If we are ever going to address the inconceivable racial disparity in the criminal justice system, we need to look at implicit bias and what happens here in Minnesota.”

Veteran Hennepin County Judge Kevin Burke agrees that Washington’s decision could have beneficial effects throughout the country’s court system.

“Since Batson was decided there has been a steady expansion of the reasons judges have accepted in denying Batson challenges but more importantly we know far more about implicit bias,” said Burke, who has studied the effects of implicit bias and addresses it in his pretrial jury instructions.

“We also know there continues to be an unacceptable perception by communities of color that the criminal justice system treats people of color unfairly. It is simply wrong to suggest Minnesota has solved the problem or that doing more is not an imperative,” he added.

Mary Moriarty, who runs Hennepin County’s public defender office, agrees that intentional and implicit bias is a major concern, but she has some issues with the Washington decision as it affects the defense.

“It is problematic that the rule would be applied to defense counsel,” she explained in an email. “Our clients are on trial and they have a right, in my opinion, to remove whomever they want from the panel of jurors deciding their fate.

“Because of attorney-client privilege, we can’t explain to the court why our client wanted to remove a juror, nor should we have to reveal those discussions,” she added.

Yet, Moriarty believes the federal courts “are way ahead of us in Minnesota on implicit bias in the court system.”

She cited a 10-minute long video on unconscious bias that is used by the federal district court in Washington state. She has requested that Minnesota judges be allowed to show the video to jurors and others before trial, “but it’s been many months and I’ve heard nothing.”

Her Ramsey County counterpart, James Fleming, said this: “I do not assume just because a juror and client share the same race that makes them predisposed to acquit. In my practice most clients want people like them on the jury so absent a statement that disqualifies a juror outright I am looking for people of color who will understand my client’s circumstance.

“But I am not saying that a circumstance has not existed where a defense attorney may want to exclude a juror because of race,” he added. “I don’t agree with it, but the prosecution has the same right to object to the strike as I do when they strike a person (of) color. I think this is headed to everyone will be losing their strikes in jury selection.”

Washington County Attorney Pete Orput believes the Batson ruling and current Minnesota judicial statutes are more than adequate in addressing all forms of bias in jury selection.

“I’ve never had any big issues with Batson challenges,” Orput, a former criminal trial prosecutor, explained in an email. “I ran into Batson issues more for when the defense tries to strike all women or men such as in a criminal sex case. … Batson is a sensitive issue and gets policed closely in our courts, from my own experience.”

Ramsey County Judge George Stephenson has a different take.

He asked a room full of state and federal judges in Minnesota during a panel discussion on implicit bias a few years ago how many of them were former prosecutors. Dozens of hands went up. He then asked: “How many of you were taught or have heard that in selecting a jury in criminal cases, a prosecutor should strike jurors of color because they favor the defense?”

Dozens of hands started to go up, he recalled.

“Questioning a prosecutor’s challenge to a juror when you believe it is racially motivated is not an easy or comfortable thing for a judge,” Stephenson noted in an email. “It would be easier if you knew the attorney was a flat-out racist but I don’t know any prosecutors like that anymore. Most seem to be good, caring folks interested in protecting the community and doing a good job … it is jarring to them to be challenged on what we perceive as bias.”

He would like to see continuing dialogue on the topic of implicit bias as well as clearer rules or guidelines “that would make it less uncomfortable for judges who are uneasy questioning a prosecutor’s challenge.”

However, the Minnesota Supreme Court has had “no discussions here about changing any of our related rules,” said Kyle Christopher, a spokesperson for the state’s judicial branch. As long as that’s the case, what happened in the state of Washington this month just might stay in Washington for now.

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Biases in Forensic Experts

posted by Judge_Burke @ 15:00 PM
April 24, 2018

Judges went to law school and few of us are scientists. But the issue of how judges approach science is of increasing interest in the judicial community. So, what about biases in forensic experts?

 

Biases in forensic experts

Forensic evidence plays a critical role in court proceedings and the administration of justice. It is a powerful tool that can help convict the guilty and avoid wrongful conviction of the innocent. Unfortunately, flaws in forensic evidence are increasingly becoming apparent. Assessments of forensic science have too often focused only on the data and the underlying science, as if they exist in isolation, without sufficiently addressing the process by which forensic experts evaluate and interpret the evidence. After all, it is the forensic expert who observes the data and makes interpretations, and therefore forensic evidence is mediated by human and cognitive factors. A U.S. National Research Council examination of forensic science in 2009, followed by a 2016 evaluation by a presidential panel, along with a U.K. inquiry into fingerprinting in 2011 and a 2015 guidance by the U.K. Forensic Science Regulator, have all expressed concerns about biases in forensic expert decision-making. Where does forensic bias come from, and how can we minimize it?

Forensic experts are too often exposed to irrelevant contextual information, largely because they work with the police and prosecution. Extraneous information—from a suspect’s ethnicity or criminal record to eyewitness identifications, confessions, and other lines of evidence—can potentially cause bias. This can give rise to conclusions that are incorrect or overstated, rather than what forensic decisions should be: impartial decisions, appropriately circumscribed by what the evidence actually supports. A consequence of cognitive biases is that science is misused, and sometimes even abused, in court. Not only can irrelevant information bias a particular aspect of an investigation, it often causes “bias cascade” from one component of an investigation to another and “bias snowball,” whereby the bias increases in strength and momentum as different components of an investigation influence one another. Bias also arises when forensic experts work backward: Rather than having the evidence drive the forensic decision-making process, experts work from the target suspect to the evidence.

These problems in forensic decision-making have been largely ignored by the courts, even though there are simple procedural and context management solutions at hand. Biases that arise from exposure to irrelevant contextual information can be minimized by case managers who ensure that only relevant information gets to the appropriate expert. By blinding experts to extraneous information, they only get the particulars that are appropriate for them to have. Bias cascade and bias snowball can be minimized by compartmentalization. For example, the person collecting evidence from a crime scene should not be the expert who analyzes that data in the laboratory. In that way, any exposure to extraneous information at a crime scene does not influence the subsequent analysis. Such measures to minimize bias are standard scientific practices and are commonly used in applied sciences, but forensic science has yet to fully adopt them in practice. Target suspect–driven bias could be minimized by tools such as Linear Sequential Unmasking (LSU), whereby experts are only exposed to the target suspect after they have fully analyzed and documented the actual evidence (such as latent fingerprints, DNA, handwriting, or bullet cartridges found at the crime scene).

A major obstacle in adopting such countermeasures is that many forensic experts have a “bias blind spot” to these implicit biases and therefore tend to deny their existence. Forensic experts frequently present their decisions to the court with great confidence and then incorrectly take the court’s acceptance of their findings as confirmation that they have not been biased or made a mistake. Acknowledging that bias can influence forensic science experts would be a substantial step toward implementing countermeasures that could greatly improve forensic evidence and the fair administration of justice.

If we want science to serve society, then it must be properly used in the halls of justice.

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Does Sessions v. Dimaya Apply in Cases You Decide?

posted by Judge_Burke @ 18:53 PM
April 23, 2018

Sessions v Dimaya is in one sense a Supreme Court decision that can be viewed as narrow. It is a deportation case…but, it may well raise far more profound issues in state and federal courts.

The Sessions case, relying upon Johnson v. United States, 559 U. S. 133, found the language of the immigration statute void for vagueness. The decision was split. Justice  Kagan delivered the opinion of the Court in Sessions v. Dimaya with respect to certain parts and was joined by Justices Ginsburg, Breyer, and Sotomayor as to others. Justice Gorsuch concurred in part and concurred in the judgment. Chief Justice Roberts filed a dissenting opinion, joined by Justices Kennedy, Thomas, and Alito. Justice  Thomas also filed a dissenting opinion, joined in part by Justices Kennedy and Alito.

So, is the case applicable to what you do? Perhaps if what happens next is lawyers will begin to raise issues about void for vagueness claims to more statutes.

 

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