Archive for June, 2016

Telewarrants in Canada

posted by Judge_Burke @ 14:30 PM
June 30, 2016

This posting is to prove that all of my knowledge about issues of importance to Canadian judges does not come from Judge Wayne Gorman or AJA President-elect Russ Otter.

Hafeez S Amarshi (Public Prosecution Service of Canada) has posted Facial Attacks on Telewarrants: Failure to Define ‘Impracticable’ on SSRN.

Here is the abstract:

The use of telewarrants is a significant tool for law enforcement in Canada. They are guided by the Criminal Code that lays out specific requirements before police can obtain a search warrant by fax, dispensing with the need for personal appearance before a justice. Telewarrants are most often sought when police seek to execute a warrant after court hours or if there is a particular urgency. Although the courts have strictly read the preconditions outlined in section 487.1(1) as mandatory, the failure of the police to follow those conditions is not necessarily fatal to the admission of evidence by trial courts.


Trial Judge’s Interruptions Lead to New Trial

posted by Judge_Burke @ 19:37 PM
June 29, 2016

It is rare to find appellate court decisions that address what are the limits to judicial intervention in a trial. Thanks to Judge Wayne Gorman, there is a Canadian court of Appeals decision on judicial intervention. Before  judges stop reading:  pause. This is an issue all of us can reflect on.

There is an old trial lawyer’s adage of a lawyer approaching the bench and saying, “Judge, I do not mind your trying my case but please do not lose it for me.” These decisions are not easy. They come up more frequently when dealing with self-represented litigants. But they are important issues each of us need to reflect on.  

In R. v. Churchill, 2016 NLCA 29, June, 2016, the accused was convicted of the offence of aggravated assault.  He appealed from conviction, arguing that the trial judge’s conduct created a reasonable apprehension of bias.  The Court of Appeal described the issues as being: “did the trial judge’s interventionist approach undermine procedural fairness by creating a reasonable apprehension of bias; and, did the interventions prevent the appellant from making full answer and defense.”

The appeal was allowed.  The Court of Appeal noted that “the trial judge took what can only be described as an interventionist approach, frequently interrupting witnesses and both counsel, to ask questions and make comments.” 

Full Answer and Defense:

The Court of Appeal held that there were “several instances when the trial judge interrupted counsel in an inappropriate manner, which had the effect of undermining counsel’s ability to effectively cross-examine the complainant on key points.”  The Court of Appeal offered three examples:

The first interruption occurred after the very first question counsel asked of the complainant, regarding surgery. The trial judge immediately asked if this question had any relevance to the matter at trial, without waiting to see if counsel’s line of inquiry could prove fruitful. He then suggested counsel’s theory was inappropriate absent medical evidence.

This interruption was premature. It is well established the defense does not need to lead evidence in order to put a theory to the witness in good faith (R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193). The trial judge should have provided counsel with the opportunity to demonstrate the relevance of the inquiry before interrupting counsel’s very first question to the witness. It sent a message to counsel and the witness that counsel’s questioning was going to be perceived as irrelevant and need not be taken seriously.

The second interruption occurred when counsel was cross-examining the complaint about the medications that she was taking for her back. The judge guessed counsel’s ultimate question and offered it to the witness for a response.

This interruption was inappropriate. There was nothing confusing that needed clarification. The judge chose to guess what counsel’s next question would be and tell the witness. This kind of interruption disrupts the rhythm of cross-examination and counsel’s psychological control over the witness (Lyttle at para. 7, see also Kendall v. Sun Life Assurance Co. of Canada, 2010 BCSC 1556 at para 41).

The third interruption occurred when counsel was cross-examining the complainant about her statement to the police, ranking how intoxicated she was on the night in question, on a scale of 1 to 10. The trial judge interrupted again, commenting that he had “no idea” what the scale meant.

This interruption did serve the purposes of clarification. However, it was also unnecessary and the judge’s tone was dismissive. The question asked the complainant to rank her level of intoxication in well-understood laypersons’ terms – a scale of 1 to 10. While the judge correctly noted this was not the most precise analysis, in the absence of scientific evidence, defense counsel was trying to paint a picture of the complainant’s state that night. There was no need for the judge to ask if a rank of 10 meant “absolutely cold junk” and signal to the witness this line of inquiry was not to be taken seriously.

The Court of Appeal concluded that “when taken together”, these interruptions “disrupted the flow of counsel’s cross-examination, undermined his authority in the eyes of the witness and thereby prevented the accused from effectively putting his theory to the complainant. Thus the right to make full answer and defense was undermined.”

Reasonable Apprehension of Bias:

The Court of Appeal indicated that a “reasonable apprehension of bias may arise if the trial judge intervenes improperly during the examination of witnesses (Brouillard at p. 48, Chippewas at para. 238), during counsel’s closing submissions (R. v. Edmond, 2014 BCSC 1375), or treats the witnesses or counsel uncivilly by being impatient, sarcastic or taunting.” 

The Court of Appeal concluded that a “number of comments from the judge would leave the reasonable observer with the impression that he was predisposed to decide in favour of the Crown and approached the defense’s case with a closed mind.”  The Court of Appeal referred to the following examples:

During cross-examination the trial judge also indicated to counsel that he was “not impressed” by defense counsel’s suggestion that the complainant had misled the court when she did not tell the truth about having no contact with the appellant while subject to a no-contact order. These types of comments from the trial judge indicate to a reasonable person that the judge is not open to hearing challenges to the complainant’s credibility and has decided the issue before the examination of the complainant has concluded.

Subsequently, during the Crown’s cross-examination of the appellant the trial judge gave the Crown “tips” about how to conduct it, offering advice such as “[e]xplore it, Ms. Holmes, find out where he was when he threw the bottle” and “[m]aybe ask him, was she facing the dart board or was she facing away from the dart board?”. While all judges have had an experience where they wish counsel would ask certain questions or make certain arguments, generally Crown counsel should be permitted to make their case against the accused as they see fit, without undue interference from the trial judge. The judge’s unnecessary comments in this case, when considered with the fact that the judge had also persistently questioned the appellant during his direct testimony, would lead a reasonable person to conclude that the judge was assisting Crown counsel in prosecuting the appellant.

Moreover, reviewing defense counsel’s final submission, one unfortunately gets the impression that the trial judge had reached his conclusion before hearing it in full. While judges are permitted to debate the relevance of certain facts and legal authorities with counsel (Chippewas at para. 243), the judge’s approach here was unnecessarily dismissive, disruptive and argumentative (Edmond at para 76).

The Court of Appeal concluded that the trial judge’s conduct “crossed the line”:

Overall, the conduct of the judge crossed the line. This is not simply a case of active intervention by a judge to achieve proper trial management. In this case the interventions cannot be justified on these grounds. A reasonable person sitting in the courtroom would, in my view, assume that the judge held a negative view of the defence being put forward and was improperly trying to assist the Crown in the presentation of its case to the prejudice of the accused. While the desire to participate actively in a case is understandable, judges must be careful to ensure there is a demonstrably fair trial and not give the impression (unintended as it may be) that the presence of the witnesses in the courtroom is just a formality and conviction is a foregone conclusion. Unfortunately, this did not happen here.


The Right to a Bail Hearing

posted by Judge_Burke @ 14:30 PM
June 28, 2016

Arizona Appeals Court Calls Charge-Based Bail Unconstitutional

The Arizona Court of Appeals has ruled that it is unconstitutional to deny people bail based solely on the charges against them. In the opinion of Simpson v Hon. Steinle/State, Judge Peter B. Swann said “We do not hold that the petitioners were entitled to bail, but that they were entitled to hearings at which the judges could consider whether any release conditions could protect the victims and the community.”

The full opinion can be found here


Procedural Fairness Means Voice, So What Role Does Silence Play?

posted by Judge_Burke @ 14:30 PM
June 27, 2016

Erin L. Sheley (University of Calgary Faculty of Law) has posted Substantive and Procedural Silence (Tennessee Law Review, Forthcoming) on SSRN.

Here is the abstract:

Perceptions of the procedural fairness of the criminal justice system turn on whether it gives individuals and communities a “voice,” or a forum in which to tell their stories. If the system imposes unwanted silence on a party its legitimacy in the eyes of the public decreases. Despite the extensive literature on the many specific applications of silence in the justice system, no attempt has yet been made to break down the relationship between the victim’s silence and the defendant’s across the disparate doctrines of criminal law, or the importance of these interconnections to the expressive purposes of punishment, particularly in a world where punishment so frequently turns on the outcome of plea negotiations. Such an effort requires us to recognize a distinction between procedural silence, which is grounded in the individual rights of each party, and what should be understood as substantive silence, which can form part of both the definition of criminal conduct on the front end and, on the back end, of the judgment and sentence in a particular case. This article has two purposes. One, it provides the first full taxonomy of the role of silence in the criminal law and identifies the key interactions between procedural and substantive silence. And, two, it offers normative suggestions — particularly to prosecutors — for managing silence in a way that will better achieve justice in light of the cumulative relationship between substance and procedure


Should Candidates for Appointment to the Bench Have to Take a Physical?

posted by Judge_Burke @ 14:51 PM
June 24, 2016

If you want to play in the National Football League you are likely to attend the draft combine, and if you are a candidate to become a police officer in some jurisdictions you need to meet with a psychologist, but what if you simply want to be appointed to the bench? Because the bench is a very sedentary job, no one cares how fast you run. Although there is a case to be made that good mental health is “quite useful” while serving as a judge, no one asks for a psychological examination. Now there is a report from Ireland. It says,

New judges should undergo a medical examination before they are appointed to ensure they are physically fit enough for the task.

The recommendation was made by the body which advises the Government on judicial appointments.

At present, prospective judges simply have to give an undertaking that there is no reason connected with their health which would prevent them from performing their functions.

But the Judicial Appointments Advisory Board recommended that legislation be amended to enable the Justice Minister to require a prospective judge to undergo a medical examination before the appointment is finalised.

Alternatively, medical examinations could be introduced as an administrative requirement, the board said.


The recommendation was previously made as far back as 2002 but as yet has not been implemented. 


Bestiality Defined by the Supreme Court of Canada

posted by Judge_Burke @ 14:30 PM
June 15, 2016

The Supreme Court of Canada has upheld the acquittal of a British Columbia man in a decision that defines the crime of bestiality as penetration involving a person and animal.

The defendant  was found guilty three years ago of 13 counts arising from years of sexual molestation of his two step-daughters.One of those counts alleged bestiality under the Criminal Code, stemming from sexual activity  the family dog. The man successfully challenged the bestiality conviction in the B.C. Court of Appeal based on the fact the activity did not involve penetration.

In a 6-1 decision the Supreme Court of Canada  affirmed the B.C. Court of Appeal  ruling, rejecting the notion bestiality is an offence encompassing sexual activity of any kind between a person and an animal. The issue for both appellate courts was whether updates to the Canadian  Criminal Code in 1955 and 1988 altered the meaning of the crime of bestiality.

Justice Thomas Cromwell, writing for the majority, reviewed  the history of the bestiality  law — and its evolution from Church of England prohibitions in the 16th century to early laws enacted in colonial Canada — and ruled that lawmakers have always intended to single out only a certain subset of animal abusers.”Penetration has always been understood to be an essential element of bestiality,” Cromwell wrote. “Parliament may wish to consider whether the present provisions adequately protect children and animals. But it is for Parliament, not the courts, to expand the scope of criminal liability for this ancient offence.”

In her understated  dissenting opinion, Justice Rosalie Abella said she had a great deal of difficulty accepting that in modernizing amendments to the Criminal Code, “Parliament forgot to bring the offence out of the Middle Ages.”


How Big Should Your Supreme Court Be?

posted by Judge_Burke @ 14:30 PM
June 14, 2016

The State of Arizona has recently increased the size of their Supreme Court.  Here’s a state-by-state look at the number of judicial seats on state courts of last resort as of 2015.


One of the best legal blogs is Professor Doug Berman’s Sentencing Law & Policy. In a recent post he wrote, “The Wall Street Journal has this effective new article discussing the case now before the Wisconsin Supreme Court considering a defendant’s challenge to the use of a risk assessment tool in the state’s sentencing process.  The article’s full headline notes the essentials: “Wisconsin Supreme Court to Rule on Predictive Algorithms Used in Sentencing: Ruling would be among first to speak to legality of risk assessments as aid in meting out punishments.”

And here is more from the body of the article:

Algorithms used by authorities to predict the likelihood of criminal conduct are facing a major legal test in Wisconsin.  The state’s highest court is set to rule on whether such algorithms, known as risk assessments, violate due process and discriminate against men when judges rely on them in sentencing.  The ruling, which could come any time, would be among the first to speak to the legality of risk assessments as an aid in meting out punishments.

Criminal justice experts skeptical of such tools say they are inherently biased, treating poor people as riskier than those who are well off. Proponents of risk assessments say they have elevated sentencing to something closer to a science. “Evidence has a better track record for assessing risks and needs than intuition alone,” wrote Christine Remington, an assistant attorney general in Wisconsin, in a legal brief filed in January defending the state’s use of the evaluations.

Risk-evaluation tools have gained in popularity amid efforts around the country to curb the number of repeat offenders.  They help authorities sort prisoners, set bail and weigh parole decisions. But their use in sentencing is more controversial.

Before the sentencing of 34-year-old Eric Loomis, whose case is before the state’s high court, Wisconsin authorities evaluated his criminal risk with a widely used tool called COMPAS, or Correctional Offender Management Profiling for Alternative Sanctions, a 137-question test that covers criminal and parole history, age, employment status, social life, education level, community ties, drug use and beliefs.  The assessment includes queries like, “Did a parent figure who raised you ever have a drug or alcohol problem?” and “Do you feel that the things you do are boring or dull?”  Scores are generated by comparing an offender’s characteristics to a representative criminal population of the same sex.

Prosecutors said Mr. Loomis was the driver of a car involved in a drive-by shooting in La Crosse, Wis., on Feb. 11, 2013. Mr. Loomis denied any involvement in the shooting, saying he drove the car only after it had occurred. He pleaded guilty in 2013 to attempting to flee police in a car and operating a vehicle without the owner’s consent and was sentenced to six years in prison and five years of supervision.  “The risk assessment tools that have been utilized suggest that you’re extremely high risk to reoffend,” Judge Scott Horne in La Crosse County said at Mr. Loomis’s sentencing.

Mr. Loomis said in his appeal that Judge Horne’s reliance on COMPAS violated his right to due process, because the company that makes the test, Northpointe, doesn’t reveal how it weighs the answers to arrive at a risk score. Northpointe General Manager Jeffrey Harmon declined to comment on Mr. Loomis’s case but said algorithms that perform the risk assessments are proprietary. The outcome, he said, is all that is needed to validate the tools.  Northpointe says its studies have shown COMPAS’s recidivism risk score to have an accuracy rate of 68% to 70%. Independent evaluations have produced mixed findings.

Mr. Loomis also challenged COMPAS on the grounds that the evaluation treats men as higher risk than women.  COMPAS compares women only to other women because they “commit violent acts at a much lower rate than men,” wrote Ms. Remington, the state’s lawyer, in her response brief filed earlier this year in the Wisconsin Supreme Court. Having two scales — one for men and one for women — is good science, not gender bias, she said.

The parties appeared to find common ground on at least one issue. “A court cannot decide to place a defendant in prison solely because of his score on COMPAS,” Ms. Remington acknowledged, describing it as “one of many factors a court can consider at sentencing.” Her comments echoed a 2010 ruling by the Indiana Supreme Court holding that risk assessments “do not replace but may inform a trial court’s sentencing determinations.”


The Public Safety Exception to Miranda

posted by Judge_Burke @ 14:30 PM
June 8, 2016

Brian Gallini (University of Arkansas – School of Law) has posted The Unlikely Meeting between Dzhokhar Tsarnaev and Benjamin Quarles (Case Western Reserve Law Review, Vol. 66, No. 2, 2015) on SSRN.

Here is the abstract:

Everyone reads New York v. Quarles in law school. The Supreme Court’s 1984 decision in Quarles established the public safety exception—the first and only exception to the requirements of Miranda v. Arizona. But at the time of Quarles’s issuance, no one could have predicted just how big and forgiving the exception would become.

Whereas the defendant in Quarles provided a single response to a single law enforcement question while in custody immediately following his arrest, one of the two 2013 Marathon Bombers, Dzhokhar Tsarnaev, had a dramatically different experience. Four days after the April 15, 2013, Marathon Bombing, Tsarnaev was captured and the government preemptively invoked Quarles to question him for at least sixteen hours without providing Miranda warnings. During that time, Tsarnaev was severely injured, heavily sedated, asked for investigators to leave him alone, and requested a lawyer several times.

That contrast, in a nutshell, is the problem with Quarles. Scholars and courts alike have for years debated the limits, if any, on the public safety exception’s applicability. But this Article makes a different argument: if the government’s reliance on Quarles in the context of Tsarnaev’s interrogation is constitutionally correct, then law enforcement’s mentality about Miranda should change—and change now. Rather than Quarles serving as a “seldom-used” exception to Miranda, Miranda should become the exception to Quarles and officers should assume a threat to public safety following even a routine arrest. 


Decision Trees for Juries

posted by Judge_Burke @ 14:30 PM
June 7, 2016

Marie Comiskey (University of Toronto) has posted Tempest in a Teapot – The Role of the Decision Tree in Enhancing Juror Comprehension and Whether It Interferes with the Jury’s Right to Deliberate Freely? (Oñati Socio-Legal Series, Vol. 6, No. 2, 2016) on SSRN.

Here is the abstract:

This article explores the potential of the decision tree (also referred to as a flow-chart, “Route to Verdict” or question-trail) to improve the legal comprehension of jurors in criminal trials. It examines why the decision tree has not yet been adopted as a mainstream jury aid in the United States and suggests that the hesitancy is rooted in longstanding distrust of any attempt to encroach on the freedom of the jury and the concern that a list of questions to guide jury deliberations may unduly influence and compel a verdict that the jury would not otherwise render. The findings from research from England, Canada, Australia and the United States on the effectiveness of decision trees in enhancing juror comprehension is discussed. The reliance on decision trees in medicine to facilitate patient comprehension of treatment options and in assisting physicians to navigate through complex treatment protocols is also considered as instructive for the legal system. The paper suggests that decision trees neither interfere with a defendant’s constitutional right to a jury trial nor with a jury’s right to deliberate freely, and that greater use of this tool should be considered given the promising indications from empirical research that decision trees can enhance jurors’ recall and comprehension of legal concepts. Any concerns about the potential misuse of decision trees are overstated and can be remedied through clear instructions to the jury.