Interviewing Children

posted by Judge_Burke @ 21:04 PM
December 13, 2019

Hayden HendersonNatalie Russo and Thomas D. Lyon (University of Southern California – USC Gould School of Law, University of Southern California – USC Gould School of Law and University of Southern California Gould School of Law) have posted Forensic Interviewers’ Difficulty with Invitations: Faux Invitations and Negative Recasting (Forthcoming, Child Maltreatment) on SSRN. Here is the abstract:

An ongoing challenge for forensic interviewers is to maximize their use of invitations, such as requests that the child “tell me more about” details mentioned by the child. Examining 434 interviews with 4- to 12-year-old children questioned about abuse, this study analyzed (1) faux invitations, in which interviewers prefaced questions with “tell me” but then asked a non-invitation, (2) negative recasts, in which interviewers started to ask an invitation but then recast the question as a wh- or option-posing question and (3) other aspects of questions that may relate to productivity independent of their status as invitations. About one fourth of “tell me” questions were faux invitations and over 80% of recasts were negative. The frequency of both faux invitations and negative recasts increased during the substantive phase of the interviews, and these were related to decreased productivity, increased non-responsiveness, and increased uncertainty. In contrast, use of exhaustive terms (e.g., “tell me everything”) and non-static questions (e.g., about actions) were related to increased productivity. The results suggest that training should teach interviewers when and how strategic use of invitations and other question-types can elicit specific types of forensically relevant information.


Risk Assessment In The Hands Of Humans

posted by Judge_Burke @ 22:17 PM
December 12, 2019

Megan T. Stevenson and Jennifer L. Doleac (George Mason University – Antonin Scalia Law School, Faculty and Texas A&M University – Department of Economics) have posted Algorithmic Risk Assessment in the Hands of Humans on SSRN. Here is the abstract:

We evaluate the impacts of adopting algorithmic predictions of future offending (risk assessments) as an aid to judicial discretion in felony sentencing. We find that judges’ decisions are influenced by the risk score, leading to longer sentences for defendants with higher scores and shorter sentences for those with lower scores. However, we find no robust evidence that this reshuffling led to a decline in recidivism, and, over time, judges appeared to use the risk scores less. Risk assessment’s failure to reduce recidivism is at least partially explained by judicial discretion in its use. Judges systematically grant leniency to young defendants, despite their high risk of reoffending. This is in line with a long standing practice of treating youth as a mitigator in sentencing, due to lower perceived culpability. Such a conflict in goals may have led prior studies to overestimate the extent to which judges make prediction errors. Since one of the most important inputs to the risk score is effectively off-limits, risk assessment’s expected benefits are curtailed. We find no evidence that risk assessment affected racial disparities statewide, although there was a relative increase in sentences for black defendants in courts that appeared to use risk assessment most. We conduct simulations to evaluate how race and age disparities would have changed if judges had fully complied with the sentencing recommendations associated with the algorithm. Racial disparities might have increased slightly, but the largest change would have been higher relative incarceration rates for defendants under the age of 23. In the context of contentious public discussions about algorithms, our results highlight the importance of thinking about how man and machine interact.


Oregon Supreme Court Issues Rule to Limit ICE Courthouse Arrests

posted by Judge_Burke @ 21:09 PM
December 9, 2019
Oregon Supreme Court Chief Justice Martha Walters issued a new rule prohibiting civil arrests in or around the state’s courthouses unless a judge has signed an arrest warrant.
“The rule was adopted following a request to prohibit U.S. Immigration and Customs Enforcement (ICE) agents from making arrests in courthouses acting only on their own administrative warrants,” according to the chief justice’s press release. However, ICE has pushed back against the new rule, stating, “Despite any attempts to prevent ICE officers from doing their jobs, ICE will continue to carry out its mission to uphold public safety and enforce immigration law, and consider carefully whether to refer those who obstruct our lawful enforcement efforts for criminal prosecution.”
“Oregon is the third state, after New York and New Jersey, to issue a statewide court rule,” according to Oregon Public Broadcasting. The state’s new rule also follows a series of lawsuits in New York and Massachusetts against ICE for their arrests in courthouses. Last year, the Brennan Center also worked with 75 former state and federal judges to send a letter to ICE’s acting director Ronald Vitiello, denouncing the agency’s courthouse enforcement activities.

Did You Miss The AJA Educational Conference In Chicago?

posted by Judge_Burke @ 22:49 PM
December 4, 2019

We are pleased to announce that the videos from the education sessions at the conference in Chicago in September are available to watch on AJA’s website at Just click on “Watch Education Sessions” at the top of the page and you can choose the session you wish to view.


What May A Police Officer Ask A Driver On A Routine Traffic Stop?

posted by Judge_Burke @ 22:12 PM
December 3, 2019

The Oregon Supreme Court has  banned police officers from asking random questions of drivers stopped in their vehicles. The questions, the justices ruled, must be “reasonably related” to the reason the cops stopped the motorist in the first place. The decision stems from the case of Mario Arreola-Botello, who was pulled over by a Beaverton Police officer in 2015 for failing to signal a turn. Arreola-Botello consented to a search of his car, leading officers to discover a package of methamphetamine on the floor.

Arreola-Botello’s attorney, Joshua Crowther, argued the search of his car was unconstitutional because it was spawned by questions that went outside the scope of what police should be allowed to ask during a routine traffic stop.

A trial court and the Oregon Court of Appeals had previously rejected the argument. Both courts cited precedent that officers could go off-topic during an “unavoidable lull” in the interaction, which usually occurs while the driver was busy searching for their license and registration.

The Oregon Supreme Court saw it differently.

“Put simply, an ‘unavoidable lull’ does not create an opportunity for an officer to ask unrelated questions, unless the officer can justify the inquiry on other grounds,” the decision states. OREGON PUBLIC BROADCASTING


What may a judge say during an election campaign? Republican Party v White, 122 S.Ct. 2528 (2002), makes clear that judges in states where there are elections (or recalls) retain some degree of First Amendment Rights. Yet many judges are unclear about what they may say or retreat into a cocoon of claiming “the Rules prevent me from saying anything.” As an electoral strategy that approach may lead to the judges defeat and return to private practice.

The California Supreme Court announced that it will be seeking public comment on a proposed exception to the judicial ethics rules that would allow a judge to “comment publicly about a pending case that formed the basis of criticism of a judge during an election or recall campaign, provided the comment would not reasonably be expected to affect the outcome or impair the fairness of the proceeding.” Currently, judges are not permitted to speak openly about pending cases under the California Judicial Code of Ethics. The proposed exception is “in response to increasing attacks on judicial independence in an age of widespread social media vitriol,” Courthouse News Service reports.


A Very Interesting Article On Emotion In The Courtroom

posted by Judge_Burke @ 19:16 PM
November 26, 2019

Susan Bandes, Closure in the Criminal Courtroom, draft of 9/7/19 (forthcoming in Edward Elgar Research Handbook on Law and Emotion, Bandes, Madeira, Temple and White eds. 2020).

Closure in the criminal courtroom: The birth and strange career of an emotion

Susan A. Bandes* Abstract:

Over the last thirty years, the notion that the criminal justice system can help provide closure for victims and their families has gained remarkable traction, both in popular discourse and in the legal arena. Closure is offered—often successfully –as an argument for imposing death sentences, trimming procedural protections, permitting victim impact statements, truncating appeals, denying clemency petitions, speeding up executions, televising executions, and granting the bereaved access to the execution chamber. More broadly, it has transformed the debate about the legitimacy of the capital system—recasting the imposition of the death penalty from a retributive act to an act of compassion for bereaved families. Closure is a puzzle. Its parameters are fuzzy, its dynamics are murky, and its origins seem to have more to do with law and politics than with psychology. There is an argument to be made that closure isn’t an emotion at all, but rather a set of legal aspirations for the conduct of criminal proceedings. Yet closure has increasingly come to be viewed as an emotional state—and one that the criminal justice system is capable of helping victims and survivors attain. It has become a prime example of the power of the criminal justice system to shape emotional expectations. This chapter discusses the evolution of closure as a legal concept, the definitional ambiguities surrounding the term, and the institutional consequences of these ambiguities for the criminal justice system. It examines the symbiotic relationship between closure and the criminal justice system, arguing that the criminal justice system has played a powerful role in reshaping the emotional expectations of victims and their families. The chapter then reviews the empirical literature on closure and criminal justice. Finally, it identifies directions for further study. The article can be found at:

Closure in the Criminal Courtroom: The Birth and Strange Career of an Emotion

The  Brennan Center for Justice released a first-of-its-kind report, The Steep Costs of Criminal Justice Fees and Fines: A Fiscal Analysis of Three States and Ten Counties, revealing that court-imposed fees and fines thwart rehabilitation, fail to make communities safer, and are an insufficient source of government revenue.

The Brennan Center’s report analyzes ten counties within Florida, New Mexico and Texas, as well as statewide data for those three states. Among the report’s key recommendations are: (1) states and localities should pass legislation to eliminate court fees imposed to fund the government; (2) states should institute a sliding scale when assessing fines based on ability to pay; (3) courts should stop jailing individuals for their failure to pay court-imposed fees; and (4) states should stop suspending driver’s licenses for people who are unable to pay their fees and fines.


How Should Courts Approach Ineffective Assistance of Counsel Claims?

posted by Judge_Burke @ 22:19 PM
November 19, 2019

Almost all of the time defendants get competent lawyers and credible representation. But occasionally there are lawyers who because of high caseloads, competence or their own afflictions simple to not perform to the standards we should expect of defense counsel. Eve Brensike Primus (University of Michigan Law School) has posted Disaggregating Ineffective Assistance of Counsel Doctrine: Four Forms of Constitutional Ineffectiveness (Stanford Law Review, Vol. 72, 2020) on SSRN. Here is the abstract:

For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems. But the conventional understanding of Strickland as a problem for ineffectiveness claims gives Strickland too much prominence, because it treats Strickland as the test for all such claims. That is a mistake. Properly understood, the Supreme Court has recognized four different constitutional forms of trial attorney ineffectiveness, and Strickland’s two-pronged test applies to only one of the four. If litigants and courts would notice the complexity and relegate Strickland to its proper place, it would pave the way for meritorious ineffectiveness claims of the other three kinds. This Article disaggregates strands of Sixth Amendment doctrine that others have jumbled together so as to enable courts and litigants to confine Strickland to its proper domain and use more appropriate analyses elsewhere.

The Article also explains why additional disaggregation is necessary within the category of cases where Strickland rightly applies. Implicitly, the Supreme Court has created not one but three tests for assessing deficient performance within that domain, and it has indicated a willingness to soften the outcome-determinative prejudice prong as well. Failure to recognize these different forms of Strickland ineffectiveness has made the test seem much harder for defendants to satisfy than needs to be true. Recognizing these complexities, and applying the right test in the right case, is necessary if individual defendants are to be treated fairly and systemic constitutional problems in the provision of indigent defense services are to be addressed.


Restricting ICE Arrests In Courthouses

posted by Judge_Burke @ 21:23 PM
November 18, 2019

Oregon Supreme Court Chief Justice Martha Walters enacted a new rule Thursday that will make it harder for immigration agents to make civil arrests in the state’s courthouses.

The new rule requires U.S. Immigration and Customs Enforcement officers to have a signed judicial warrant if they plan to enter a courthouse to make an arrest. In the past, ICE agents have used administrative warrants that are signed by other ICE officers, rather than a neutral third party, like a judge.

The new rule follows a petition that was sent to the court by immigrants’ rights groups in December 2018. They have argued, among other things, that immigration arrests around and near courthouses puts a chilling effect on those seeking access to the justice system.

“Adopting this rule protects the integrity of the state judicial process and will allow state courts to fully hold accountable people accused of a crime,” Walters said in a release. “Arrests in courthouses have interfered with judicial proceedings and removed criminal defendants before they have been sentenced or completed their sentences. We are adopting this rule to maintain the integrity of our courts and provide access to justice — not to advance or oppose any political or policy agenda.”

The rule also bans civil immigration arrests in courthouses, their parking lots, sidewalks and entryways, unless a judge has signed an arrest warrant.

Oregon is the third state, after New York and New Jersey, to issue a statewide court rule. California lawmakers passed a rule that offers similar protections to immigrants, according to the ACLU of Oregon. For the full story: