Archive for February, 2017

Forget About Getting Proper Sleep; You Will Not Hurt Anyone?

posted by Judge_Burke @ 16:39 PM
February 28, 2017

Recently there have been studies specifically examining how sleep or lack of sleep might affect a judge’s decision. It may not take a study to convince you that decision making during periods of fatigue might not be optimal. But, for those skeptics, there is relief in sight. Holger Spamann (Harvard Law School) has posted Are Sleepy Punishers Really Harsh Punishers?: Comment on SSRN.

Here is the abstract:

This comment points out four severe reservations regarding Cho et al.’s (PS 2017) finding that U.S. federal judges punish more harshly on “sleepy Mondays,” the Mondays after the start of Daylights Savings Time. First, Cho et al.’s finding pertains to only one of at least two dimensions of harshness, and the opposite result obtains in the second dimension. Second, even within the first dimension, Cho et al.’s result is statistically significant only because of a variable transformation and sample restrictions that are neither transparent in the article nor theoretically sound. Third, reanalysis of the data with superior methods reveals no significant “sleepy Monday” effect in the years 1992-2003. Fourth, sentences were on average shorter on “sleepy Mondays” out of sample, namely in 2004-2016.


Swift, Certain, and Fair Approaches to Sentencing Family Violence Offenders

posted by Judge_Burke @ 15:30 PM
February 27, 2017

Thanks to Judge Wayne Gorman who shared this interesting analysis:

The Sentencing Advisory Council for Victoria, on February 20, 2017, released a discussion paper entitled: Swift, Certain and Fair Approaches to Sentencing Family Violence Offenders (see

Following a recommendation by the Royal Commission into Family Violence, the Council was asked in September of 2016 to advise the Attorney-General on the desirability of implementing a “swift, certain and fair” approach to sentencing family violence offenders, and how such an approach might be implemented in Victoria.

The Royal Commission described the principles of “swift and certain” approaches to include:

-a clearly defined behavioural contract – that is, rules setting out the conditions of compliance and consequences of non-compliance in a way that is clearly understandable to an offender;

-consistent application of those rules;

-swift delivery of the consequences of non-compliance; and

-parsimonious use of punishment – that is, the least amount of punishment necessary to bring about the desired change.

The Council was also asked, in the event that the government introduces some form of “swift and certain” approach, to advise on the following matters:

-which specific approaches are preferred within the Victorian context;

-whether there are particular groups of family violence offenders at which swift and certain approaches should be focused;

-whether modifications to current laws and sentencing practice and procedure are needed to support preferred swift and certain approaches;

-whether additional sentencing options are needed to support preferred swift and certain approaches;

-the broad demand implications of any approach, or approaches, that the Council may consider desirable; and

-any other matter that the Council considers appropriate.

The new discussion paper forms the basis of the Council’s consultation and community engagement, and contains:

-a definition of what “swift, certain and fair” approaches are;

-a summary of the available evidence about the effectiveness of ‘swift, certain and fair’ approaches;

-an outline of the current frameworks for managing family violence offenders in Victoria; and

-a discussion of possible options for implementing a ‘swift, certain and fair’ approach in Victoria.

The discussion paper notes that for “the criminal justice system to be effective, it must respond to crime in a timely, consistent and fair manner. People who would otherwise engage in criminal behaviour are most effectively deterred when they perceive their chances of being caught as high, and when they believe that sanctions will be imposed sooner rather than later.”

Swift and certain prosecution of community correction order contraventions:

The discussion paper indicates that one option “for implementing an SCF [swift, certain and fair] approach in Victoria may be to change the way in which high-risk family violence offenders who have been sentenced to a community correction order (CCO) are responded to whenever they contravene the conditions of the CCO. In addition to fast-tracking CCO contravention prosecutions that involve family violence offenders, a reformed approach might involve legislative change. For example, when sentencing, a court might be allowed to prescribe CCO conditions that should be targeted with a ‘zero-tolerance’ approach to prosecution for contravention, thereby requiring particular (or indeed all) condition contraventions to be met with a swift and certain response.”

Alternatively, the discussion paper notes that “Corrections Victoria could implement a different (administrative) approach to the management of high-risk family violence offenders on a CCO, again requiring condition contraventions to be met with a swift and certain response.”


A Podcast Featuring a Discussion About Fairness

posted by Judge_Burke @ 16:18 PM
February 24, 2017

Minnesota trial judge Kevin Burke is concerned about negative public perceptions of our courts – especially among people of color.

People too often believe they are treated unfairly and that judges are biased and make their decisions based upon “political views” and not the law. They also think judges are not understandable and that court processes are mysteries.

Judge Burke is on a mission to stem this negative tide. He has studied this issue, done surveys, written about it and is lecturing extensively to judicial groups across the country.

Judge Burke says to counteract the problem, judges need to do a better job with basic “procedural fairness” – making sure everyone feels they are being treated fairly and that people understand what a judge does in court…and why.

He says judges, not only need to explain what they do in understandable terms, but they need to listen better to people who want to tell their story.
Judge Burke believes that people don’t trust what they don’t understand and that it is a duty of every judge to make sure each party understands what the court is doing. If this happens, according to the judge, compliance with court orders increases, recidivism decreases, and public perception improves.

He is a proponent of giving parties before the court “voice and respectful treatment.” In that way, judges can foster a sense of neutrality and fairness.

If judges follow guidelines for procedural fairness, Judge Burke argues that perceptions of the judicial system will improve and become positive instead of negative.


You can find the podcast here


A Trial is Not a Search for the Truth, So Don’t Confuse Jurors?

posted by Judge_Burke @ 15:30 PM
February 23, 2017

Michael D. Cicchini has posted The Battle over the Burden of Proof: A Report from the Trenches (University of Pittsburgh Law Review, Vol. 79, No. 1, 2017) on SSRN.

Here is the abstract:

After explaining the concept of “proof beyond a reasonable doubt,” many trial courts will conclude their burden of proof instructions by telling jurors “not to search for doubt” but instead “to search for the truth.” Criminal defense lawyers have argued that such truth-based instructions improperly lower the burden of proof to a mere preponderance of evidence standard. Prosecutors, however, have dismissed defense lawyers’ concerns as pure speculation.

To resolve this dispute, Professor Lawrence White and I empirically tested the impact of truth-based jury instructions on verdicts. In our two recently published studies, mock jurors who received truth-based instructions convicted at significantly higher rates than jurors who were simply instructed on reasonable doubt. Jurors who received the truth-based instructions were also far more likely to mistakenly believe it was proper to convict even when they had a reasonable doubt about guilt.

Based on plain language, logical argument, and now the supporting empirical evidence, we defense lawyers have been asking trial courts to remove truth-related language from their burden of proof jury instructions. Prosecutors, however, are fighting to keep these burden-lowering, truth-based instructions and have made twenty different arguments when attempting to preserve the status quo.

This Article collects, organizes, and debunks these prosecutorial arguments. Its purpose is to assist criminal defense lawyers and judges in recognizing and responding to invalid arguments, many of which are based on logical fallacies, misstatements of law, misrepresentations of fact, or a gross misunderstanding of the scientific research. Debunking these prosecutorial arguments is a critical step in winning the battle over the burden of proof and protecting each defendant’s right to remain free of conviction “except upon proof beyond a reasonable doubt.” 


If Your Favorite Football Team Loses, Will Judges Hammer the Defendant?

posted by Judge_Burke @ 15:30 PM
February 22, 2017

There are studies that have found that the best time to appear before a judge is right after breakfast or right after lunch. The studies suggest that as the morning or afternoon goes on, judges get compassion fatigue or become risk adverse. But what if your favorite football team unexpectedly loses? Surely that would never affect a judge’s decision.

A recent study by Naci Mocan and Ozkan Eren suggests judges are more affected by things like that than any of us might like to admit. This new study is worth reading.


Employing the universe of juvenile court decisions in a U.S. state between 1996 and 2012, we analyze the effects of emotional shocks associated with unexpected outcomes of football games played by a prominent college team in the state. We investigate the behavior of judges, the conduct of whom should, by law, be free of personal biases and emotions. We find that unexpected losses increase disposition (sentence) lengths assigned by judges during the week following the game. Unexpected wins, or losses that were expected to be close contests ex-ante, have no impact. The effects of these emotional shocks are asymmetrically borne by black defendants. We present evidence that the results are not influenced by defendant or attorney behavior or by defendants’ economic background. Importantly, the results are driven by judges who have received their bachelor’s degrees from the university with which the football team is affiliated. Different falsification tests and a number of auxiliary analyses demonstrate the robustness of the findings. 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). They also point to the existence of a subtle and previously-unnoticed capricious application of sentencing.


The full study can be found here:  Emotional Judges and Unlucky Juveniles


Bail Reform in Maryland

posted by Judge_Burke @ 15:30 PM
February 17, 2017

The Maryland Court of Appeals recently adopted a rule ending the practice of holding criminal defendants in jail before trial when they cannot afford bail. The rule does not abolish the practice of required money for bail [Baltimore Sun report] but instructs judges to seek other ways of ensuring a defendant appears for trial. The rule keeps the option of money bail but provides judicial discretion to find other options when appropriate. It was argued that keeping defendants in jail solely because they could not afford bail is unconstitutional and that if there is a concern of public safety, then it is better to hold defendants without bond rather than placing a high bail amount in order to keep them behind bars. Some other options besides setting a bail amount are pretrial supervision and electronic monitoring. The new rule will take effect July 1.


Criminal Intent

posted by Judge_Burke @ 15:42 PM
February 16, 2017

Michael Tonry (University of Minnesota – Twin Cities – School of Law) has posted Fairness, Equality, Proportionality, and Parsimony: Towards a Comprehensive Jurisprudence of Just Punishment (Penal Censure (Anthony E. Bottoms & Antje Bois-Pedain, eds., Oxford: Hart, Forthcoming)) on SSRN.

Here is the abstract:

The retributive conception of punishment as a process for censuring blameworthy conduct is an important component of a complete theory of punitive justice, but by itself is not enough. Nor are ‘mixed’ theories that incorporate traditional retributive ideas as constraints on pursuit of consequentialist crime prevention goals. If punishment were unidimensional, involved only first offenders convicted of a single offence, and based solely on censuring blameworthy behaviour, theorizing would be easier: offenders should be censured, and punished, precisely as much as they deserve relative to the censure and punishment of others convicted of the same and different offences. In mixed theories, punishments of individuals should never exceed what is deserved relative to the punishments of others. All that would be needed is a sufficiently discriminant ordinal scale of offence seriousness tied to proportionate punishments. Theories of punitive justice, however, cannot be unidimensional. Nor can they be premised on the situations of first offenders, on single offences, or on a single overriding value such as censure. More is at stake. A complete theory of punitive justice must also satisfy the requirements of independently important principles of fairness, equal treatment, and human dignity.


Do you call it the F-word? Use asterisks instead of some of the letters? Substitute the word “expletive”? Or write it out in full?

Appellate opinions are more frequently choosing the last option, reports. Since 2006, the full word was quoted in about 445 federal appellate opinions, according to the publication’s search of court records. That’s about the same number of times the word was spelled out in the prior four decades combined. spoke with judges for their take on use of the word. One judge who says he avoids obscenities in his opinions is U.S. District Judge Fred Biery of San Antonio, Texas. “This culture has become so coarse in many respects … I would never put that kind of stuff in a written opinion,” Biery told “My father would turn me over his knee if I put that kind of language—that’s the way I was raised.”

Taking the other side, Judge Richard Posner of the Chicago-based 7th U.S. Circuit Court of Appeals said it was absurd to hide profanity if it’s relevant to the case.

“Look at what judges deal with—you have murderers, people who steal hundreds of millions of dollars. To the extent that their activities are connected with obscenities, obscene messages, that’s part of the case,” Posner told “The question is, is it germane? Is it helpful to the readers’ understanding of what was going on? Then you have to put it in.”

The story notes that some judges will write out the F-word in full, but not the N-word. Chief Judge Theodore McKee of the Philadelphia-based 3rd U.S. Court of Appeals explained his thinking. The N-word, he said, is “not just an obscenity, but it is something that is suggestive of a kind of mindset that is incredibly hurtful to people.”


Criminal Intent

posted by Judge_Burke @ 15:30 PM
February 14, 2017

One could go through an entire judicial career without confronting the issue of brain scan evidence, but if you do, a recent piece is a great position to start your education:  Deborah W. Denno (Fordham University School of Law) has posted Concocting Criminal Intent (Georgetown Law Journal, Vol. 105, pp. 323-78 (2017)) on SSRN.

Here is the abstract:

My empirical study, which examines neuroscience evidence in 800 criminal cases over the course of two decades, is the first to determine how, when, and why victim brain scan evidence is introduced and used in court. My study reveals that although courts commonly rely on brain scans to show the extent of a victim’s injury, the actual application of this neuroscience evidence extends far beyond the purpose for which it is admitted. Indeed, victim brain scans are introduced primarily by prosecutors, and nearly half of these cases are based on medical expert testimony that the victims suffer from shaken baby syndrome, a medical diagnosis with controversial scientific underpinnings and distorted legal ramifications. The diagnosis often successfully serves as the sole foundation for a prosecutor’s case, with no proof of the defendant’s act or intent beyond the victim’s brain scan and the accompanying medical expert testimony. Shaken baby syndrome cases thus portray a troubling phenomenon in which the key element of mens rea is either unclear or overlooked altogether and prosecutors are permitted to concoct intent out of brain scans that were admitted for the sole purpose of presenting the victim’s injury. My study further reveals that shaken baby syndrome cases are merely the more transparent examples of the criminal justice system’s failure to deal adequately with the surging influx of neuroscience evidence into the courtroom. Shaken baby cases thus represent a microcosm of prosecutorial misuse of victim neuroscience evidence more generally, particularly when the evidence is employed to determine a defendant’s mental state.


Bail Reform in Maryland

posted by Judge_Burke @ 16:18 PM
February 13, 2017

Maryland’s highest court voted to change the state’s bail policies for criminal defendants, writes Ovetta Wiggins and Ann E. Marimow for The Washington Post.

According to the authors, “[t]he rule change, which takes effect July 1, requires judges to impose the ‘least onerous’ conditions when setting bail for a defendant who is not considered a danger or a flight risk.” They write that this “essentially abolish[es] a system in which poor people could languish behind bars for weeks or months before trial because they could not post bond.” Vinnie Magliano, president of East Coast Bailbonds, criticized the decision saying “the court was ‘moving one million miles an hour in the wrong direction.’” However, Maryland’s Attorney General Brian Frosh (D) said the change is a “‘huge step forward’ that will lead to ‘more justice in Maryland.’” He added: “If you’re poor, you’re not going to be held in jail just because you can’t make bail.” The rules, he concluded, will “‘keep dangerous people behind bars’ and ‘let the vast majority who are not a threat out’ before trial.”