Can’t We Just Accept Lying Is A Good Thing?

posted by Judge_Burke @ 15:00 PM
November 26, 2014

Miller W. Shealy Jr. (Charleston School of Law) has posted The Hunting of Man: Lies, Damn Lies, and Police Interrogations (University of Miami Race & Social Justice Law Review, Vol. 4, 2014) on SSRN.

Here is the abstract:

The job of the police is to stop crime by stopping criminals. It is a real life, deadly cat-and-mouse game where the hunter and the hunted spar for advantage and success. To accomplish its goals, law enforcement can draw from a vast array of technologies, stratagems, and devices. One of the primary weapons in the law enforcement arsenal is deceit. Criminals, like most prey, are lured into clever traps set by police. The police create circumstances and situations that are designed to prompt the criminal suspect into revealing incriminating information. This is obvious in the use of confidential informants, undercover police officers, and other common police tactics. Suspects are “tricked” by police into revealing themselves. A controversial aspect of this kind of police “trickery” occurs in the interrogation context. What may police tell suspects to “trick” or prompt them into confessing? Can a police officer misrepresent the strength of the case against the suspect? Can an officer lie about the nature of incriminating evidence? Can an interrogating officer disguise his or her identity during the interrogation and pose as a family friend, priest, or someone friendly to the accused? This article will examine current police practices in the context of recent Supreme Court cases and social science findings.


A Plug for an Interesting Judicial Web Site

posted by Judge_Burke @ 18:00 PM
November 25, 2014

Since 2010, Alan F. Pendleton, a district judge for Anoka County, Minn., has published the email newsletter “Minnesota Judicial Training Updates,” in which he provides short, easy-to-read articles about concepts every judge and attorney should understand. The emails were sent to some 85 percent of the state’s judges, as well as to many attorneys.

Over the summer, the Minnesota Supreme Court asked Judge Pendleton to create a training blog to serve as the official repository for these training updates. The idea was to create a blog that would serve as a “one-stop” resource library for judges and attorneys.

That idea is now a reality, with the recent launch of Pendleton Judicial Training Updates. It contains all of the past updates and all new updates.  The updates are designed to provide concise judicial tips that every judge and attorney should know, usually in a question and answer format.

Judge Pendleton says that many of the updates are also of interest to law enforcement, court administration, guardians ad litem, and the general public.

By way of example, recent topics covered at the blog include:

  • 10 issues judges should be prepared for in civil jury trials.
  • What is an Alford plea and what procedure must the court follow before accepting it?
  • 15 facts every judge should know about court-related violence.

In addition to these updates, the site includes other resources for judges and lawyers, such as:

  • Links to major legal search engines, state statutes, court rules, the Minnesota and U.S. constitutions, sentencing guidelines, administrative rules and various training manuals.
  • A restricted, judges-only section that contains judges’ bench books, civil and criminal jury instructions, Courtnet and SharePoint education portals, and more.

A table of contents lists every article, sorted by the year in which it was first published. Articles are also organized under a subject matter index.



Where Are Courts Headed With Digital Privacy?

posted by Judge_Burke @ 15:00 PM
November 24, 2014

Adam Lamparello and Charles E. MacLean (Indiana Tech – Law School and Indiana Tech Law School) have posted Riley v. California: The New Katz or Chimel? (Richmond Journal of Law and Technology, 2014 Forthcoming) on SSRN.

Here is the abstract:

Justice Brandeis forecasted that “[t]he progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping.” In the law enforcement and government surveillance context, technological advances have made it possible to store an individual’s DNA in a national database, and have made it nearly impossible for that same individual to send an email, download a YouTube video, or transmit a text message without knowing that the government might be watching — without having the slightest degree of suspicion of criminal behavior. In any society that values basic civil liberties, such practices are intolerable — and unconstitutional. In Riley, the Court correctly held that, if privacy is to mean anything, it should protect individuals from being monitored without their consent, without a reason, and without a warrant. It is the beginning of principled change and enhanced protections for civil liberties in the digital age.


Crashing the Misdemeanor System

posted by Judge_Burke @ 15:00 PM
November 21, 2014

This article by Jenny Roberts was recently posted on SSRN.

Here is the abstract:

With “minor crimes” making up more than 75% of state criminal caseloads, the United States faces a misdemeanor crisis.  Although mass incarceration continues to plague the nation, the current criminal justice system is faltering under the weight of misdemeanor processing.

Operating under the “broken windows theory,” which claims that public order law enforcement prevents more serious crime, the police send many petty offenses to criminal court.  This is so even though the original authors of the theory noted that “[o]rdinarily, no judge or jury ever sees the persons caught up in a dispute over the appropriate level of neighborhood order” and that “a judge may not be any wiser or more effective than a police officer.”  Prosecutors have largely failed to exercise discretion in misdemeanor cases, instead churning them through the already overburdened courts.  Judges too have been complicit, failing to dismiss weak cases and to intervene when defenders represent their clients ineffectively.  As a result, many cases end in a quick guilty plea with little or no jail time.  The “broken windows theory” suggests that everyone benefits from such efficiency.

Yet the effect of misdemeanor convictions is anything but minor.  A quick guilty plea appears advantageous for a disorderly conduct misdemeanor in exchange for the night already served in jail.  But this conviction can, and does, lead to eviction from public housing.  It can, and does, pose a bar to showing “good moral conduct” for citizenship.  And it can, and does, make it difficult to find work in an era when employers routinely run criminal background checks.  The many harsh collateral consequences of even a “minor” misdemeanor conviction create serious barriers to the most basic aspects of life.  Mass misdemeanor processing thus harms the individual, his family, his community, and society.

Refusing to process individuals quickly would impose some of the real costs of mass misdemeanor processing on the justice system itself.  Such a “crash” of the criminal justice system would not be dramatic.  Instead, if defense counsel litigated some of the many factual and legal issues that misdemeanors present, the system would grind to a halt under its own weight.  The representation would be nothing more than Gideon and its progeny require, but would shift the burden for mass misdemeanor processing to the prosecution and the courts from misdemeanor defendants. Under this weight, legislators might reduce the short- and long-term costs of mass misdemeanor policing.  Prosecutors might exercise greater discretion, and police officers might maintain order without needless arrests.

Part I explores the idea of crashing the system as a potential response to the misdemeanor crisis.  Part II describes the potential role for defense counsel in such an institutional response.  Part III outlines specific strategies that specialized defender practice groups might pursue to crash the system.  Part IV explores arguments for and against efforts to crash the existing misdemeanor system.


Why Do Judges Wear Robes?

posted by Judge_Burke @ 15:11 PM
November 20, 2014

From Justice Sandra Day O’Conner:

The simple black judicial robe has been a part of my life for nearly four decades. I first wore one in 1975 when I became a trial judge in Arizona. When I was appointed to the Supreme Court of the United States, in 1981, I brought that same robe with me to Washington and wore it on my first day on the bench. Although I retired in 2006, I still wear a robe in my role as a “circuit-rider,” sitting frequently, as many retired justices do, on various federal Courts of Appeals across the country.

It is surprising to me how little we know about where this plain black judicial uniform comes from.


Keep reading.


Extrinsic Evidence to Impeach for Untruthful Acts

posted by Judge_Burke @ 15:00 PM
November 19, 2014

Edward J. Imwinkelried (University of California, Davis – School of Law) has posted Formalism versus Pragmatism in Evidence: Reconsidering the Absolute Ban on the Use of Extrinsic Evidence to Prove Impeaching, Untruthful Acts that Have Not Resulted in a Conviction on SSRN.

Here is the abstract:

In the adversary system, a litigant not only has the right to present evidence supporting his or her theory of the case; the litigant is also entitled to attack the opposing testimony. In Crane v. Kentucky, 476 U.S. 683 (1986), the Supreme Court held that under the Sixth Amendment, the accused has a constitutional right to attack the weight and credibility of opposing testimony.

There are two ways in which the litigant can mount such an attack. First, the litigant may cross-examine the opposing witness. Second, the litigant can present “extrinsic evidence” of the impeaching facts: After the witness to be impeached has left the stand, the litigant may present documentary or testimonial evidence to prove the impeaching fact. Of course, if the witness to be impeached fully concedes the impeaching fact on cross-examination, there is no need for the litigant to resort to extrinsic evidence.


Law and the Role of a Judge

posted by Judge_Burke @ 15:00 PM
November 17, 2014

Law and the Role of a Judge

Leslie Green 

University of Oxford – Faculty of Law; Queen’s University – Faculty of Law

September 13, 2014

Oxford Legal Studies
Research Paper No. 47/2014


This paper argues that role of a judge consists of obligations to apply the law, obligations to improve the law, and obligations to protect the law.

It defends this view against a competing suggestion by Michael Moore, who claims that, when acting judicially, judges are always obligated to apply the law, and the law alone. I argue that this depends on an incorrect view of the relationship between social roles and moral obligations, and an unacceptably capacious view of what the law is. I conclude by asking whether there nonetheless room to make a ‘conceptual choice’ to see law as Moore thinks of it, or a reason to reform the concept of law along such lines. I reject both ideas. There are fewer ‘conceptual choices’ in jurisprudence than some people think.


Courthouse Security

posted by Judge_Burke @ 18:30 PM
November 13, 2014


Security publications now available on the NCSC website include:


Services available from NCSC’s security team include:

  • Training program: “Conducting an Assessment of Your Courthouse”
  • Training program: “Responding to an Active Shooter”
  • Training program: “Defending Your Courtroom”


Contact Timm Fautsko ( or Kent Kelly (
for further details.


A Call for Reform

posted by Judge_Burke @ 15:00 PM
November 13, 2014

Massachusetts Chief Justice calls for drug sentencing reform, stakeholder convening:

Addressing the Massachusetts Bar Association’s Bench-Bar Symposium, Justice Ralph Gants called for an end to mandatory minimum sentences for low-level drug offenses and called on the state to find better ways to treat people than sending them to jail. Judge Gants said that he plans to hold a convening with judges, probation officers, prosecutors, and defense attorneys to study best practices to ensure individualized, evidence-based sentences.


Truth, Justice, and the American Style Plea Bargain

posted by Judge_Burke @ 15:06 PM
November 12, 2014

Ken Strutin

 Government of the State of New York – New York State Defenders Association (NYSDA)


Albany Law Review, Vol. 77, No. 3, p. 825, 2013/2014


In the 2011 term, the Supreme Court decided two cases, Missouri v. Frye and Lafler v. Cooper, which highlighted whether the Sixth Amendment right to counsel safeguarded the integrity of the trial or encompassed non-trial facets such as the plea bargain. This line of decisions has been followed most recently by Burt v. Titlow, which further defined the role of postconviction record-making in assessing the fundamental question: Did the right to effective assistance of counsel protect the accuracy of the verdict or the fairness of the process?

Through the prism of recent Supreme Court plea bargaining decisions this Article examines their implications for the competing goals of truth versus process. Part I frames the argument about the nature of criminal justice and the tension between fact-finding trials and resolution making plea negotiations. Then, those values are scrutinized in the context of three recent and watershed Supreme Court decisions: Part II Missouri v. Frye, Part III Lafler v. Cooper, and Part IV Burt v. Titlow. Lastly, Part V considers the lessons of wrongful incarceration as guideposts to align accuracy with certainty in the administration of justice.