Archive for August, 2017

Determining Credibility

posted by Judge_Burke @ 14:30 PM
August 31, 2017

Determining credibility is very complex. When you are doing it in the context of a civil order for protection or something similar, credibility decisions can be even more complex. All of us are fearful that “something might happen,” so what is the harm in granting an OFP? But, as Justice Brandeis wrote, “men feared witches and burned women.”

There are many faults with current judicial education, but among them is we spend little time learning how faulty our determinations about credibility can be. In the end, judges have to make the call as to who to believe…but there is another way of framing the question that might well be far closer to what the law expects us to do:  Did the litigant meet their burden of proof?

I thought that it may seem quite egotistical to post a portion of an order written by oneself…but then I read a quote from John Kenneth Galbraith, “ modesty is a vastly overrated virtue.” And so I share this passage from an order I recently wrote:

Determining credibility is among the most difficult tasks a trial judge has.  Judges make factual findings. Judges are not necessarily better than others at figuring out who is telling the truth.  For example, in a controlled study of 110 judges with an average of 11.5 years on the bench, judges did no better than chance in telling who was being truthful and who wasn’t.  See Paul Ekman & Maureen O’Sullivan, Who Can Catch a Liar?, 46 Am. Psychologist 913 (1991); Richard Schauffler & Kevin S. Burke, Who Are You Going to Believe?, 49 Court Rev. 124 (2013).  Judge Learned Hand once said, “The spirit of liberty is the spirit which is not too sure that it is right.”  This decision will no doubt disappoint Officer [X] and the city attorneys who represented [City].  While the Court has made the credibility decision necessary, it has done so with the admonition of Judge Learned Hand in mind.

It is not true, as the State argues, that “In order for this court to find in favor of Defendant . . . this Court would have to believe Officer [X] lied twice under oath.”  We know from serious psychological studies that there is a phenomenon called the “Illusion of Memory.”  “The next time you hear a politician or celebrity make a false claim about what they remember, keep in mind that they might not be lying maliciously.  They might not even realize their memory is wrong (and if you tell them, they might not believe you).”  See Remarkable False Memories, Simons, Daniel, Nov. 16, 2010

When it comes to understanding the limits of our long-term memory we tend to hold entirely unrealistic, fallacious, and illusory expectations.  “In a national survey of fifteen hundred people [Chabris and Simons] commissioned in 2009, we included several questions designed to probe how people think memory works.  Nearly half (47%) of the respondents believed that ‘once you have experienced an event and formed a memory of it, that memory doesn’t change.’  An even greater percentage (63%) believed that ‘human memory works like a video camera, accurately recording the events we see and hear so that we can review and inspect them later.” (Chabris & Simons, 2010, pp. 45-46).  “People who agreed with both statements apparently think that memories of all our experiences are stored permanently in our brains in an immutable form, even if we can’t access them. It is impossible to disprove this belief . . . but most experts on human memory find it implausible that the brain would devote energy and space to storing every detail of our lives . . . .” (p. 46)  This Order is not premised upon a finding by this Court that Officer [X] lied but that our memories of even significant life events are quite fallible, and to put it colloquially:  [Officer X's] memory of what happened and his perception was more fallible that [Defendant's].



Fines, Fees & Forfeitures

posted by Judge_Burke @ 15:20 PM
August 30, 2017

Beth A. Colgan (University of California, Los Angeles (UCLA) – School of Law) has posted Fines, Fees, and Forfeitures (Academy for Justice: A Report on Scholarship and Criminal Justice Reform, Erik Luna, ed., 2017, Forthcoming) on SSRN.

Here is the abstract:

The use of fines, fees, and forfeitures has expanded significantly in recent years as lawmakers have sought to fund criminal justice systems without raising taxes. Concerns are growing, however, that inadequately designed systems for the use of such economic sanctions have problematic policy outcomes, such as the distortion of criminal justice priorities, exacerbation of financial vulnerability of people living at or near poverty, increased crime, jail overcrowding, and even decreased revenue. In addition, the imposition and collections of fines, fees, and forfeitures in many jurisdictions are arguably unconstitutional, and therefore create the risk of often costly litigation. This chapter provides an overview of those policy and constitutional problems and provides several concrete solutions for reforming the use of fines, fees, and forfeitures.


Mental Health Courts

posted by Judge_Burke @ 14:30 PM
August 29, 2017

Psychiatric Services includes an article:  ”Effectiveness of Mental Health Courts in Reducing Recidivism: A Meta-Analysis.” The authors are Evan M. Lowder, Ph.D., Candalyn B. Rade, Ph.D., Sarah L. Desmarais, Ph.D. 

Here is the abstract:


Mental health courts (MHCs) were developed to address the overrepresentation of adults with mental illnesses in the U.S. criminal justice system through diversion into community-based treatment. Research on MHCs has proliferated in recent years, and there is a need to synthesize contemporary literature on MHC effectiveness. The authors conducted a meta-analytic investigation of the effect on criminal recidivism of adult MHC participation compared with traditional criminal processing.


Systematic search of three databases yielded 17 studies (N=16,129) published between 2004 and 2015. Study characteristics and potential moderators (that is, publication type, recidivism outcome, and length and timing of follow-up) were independently extracted by two of four raters for each study. Two raters coded each study for quality and extracted between-group effect sizes for measures of recidivism (that is, arrest, charge, conviction, and jail time; k=25). Results were synthesized by using random-effects meta-analysis. Heterogeneity and publication bias were also assessed.


Results showed a small effect of MHC participation on recidivism (d=–.20) relative to traditional criminal processing. MHCs were most effective with respect to jail time and charge outcomes compared with arrest and conviction, in studies measuring recidivism after MHC exit rather than at entry, and in lower-quality studies compared with moderate- and high-quality studies. Results showed significant heterogeneity in effect sizes across studies (I2=73.33) but little evidence of publication bias.


Overall, a small effect of MHC participation on recidivism was noted, compared with traditional criminal processing. Findings suggest the need for research to identify additional sources of variability in the effectiveness of MHCs.


The article is online at:


Federal Rule of Evidence 615 provides that:

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.


Many states have evidence rules modeled after or even identical to the Federal Rules of Evidence. The Evidence blog recently had this post:

“If Elaine and Felicia are eyewitnesses to a murder and witnesses against the defendant at trial, defense counsel can move to have Elaine excluded from the courtroom when Felicia testifies and vice versa. The concern here is that a later witness might hear the testimony of an earlier witness and, consciously or unconsciously, tailor her testimony to the testimony of the earlier witness (e.g., Felicia might plan on saying that the day of the murder was a sunny day before hearing Elaine testify that it was a cloudy day).


Judges often expand the scope of sequestration under Rule 615. For instance, in United States v. Smith, 2017 WL 3393934 (6th Cir. 2017), the judge issed a “courtroom procedures and decorum” order under Rule 615, which stated that:

[i]f witnesses are sequestered, counsel must assure that each witness called…understands that (s)he may not discuss the testimony (s)he expects to give or has given in the matter before the court…[and] should anyone attempt to discuss the testimony (s)he has given or expects to give…(s)he may not engage in such discussion.



An Aid to Judgment or a Substitute For It?

posted by Judge_Burke @ 14:30 PM
August 23, 2017

There are a plethora of computer programs that drive the quest for “evidenced based sentencing.”  Given what we know about implicit bias, it is hard to ague that judges cannot benefit from checks on or aids to their judgment. Yet there are pitfalls, not the least of which is that the aide to judgment becomes a substitute for judgment.

When Chief Justice John G. Roberts Jr. visited Rensselaer Polytechnic Institute last month, he was asked a startling question, one with overtones of science fiction. “Can you foresee a day,” asked Shirley Ann Jackson, president of the college in upstate New York, “when smart machines, driven with artificial intelligences, will assist with courtroom fact-finding or, more controversially even, judicial decision-making?” The chief justice’s answer was more surprising than the question. “It’s a day that’s here,” he said, “and it’s putting a significant strain on how the judiciary goes about doing things.” He may have been thinking about the case of a Wisconsin man, Eric L. Loomis, who was sentenced to six years in prison based in part on a private company’s proprietary software. Mr. Loomis says his right to due process was violated by a judge’s consideration of a report generated by the software’s secret algorithm, one Mr. Loomis was unable to inspect or challenge.


Continue reading this story


How Many Times has a Judge Thought This?

posted by Judge_Burke @ 14:30 PM
August 22, 2017

When asked to say “something nice” about someone, “[i]t’s not that he lies,” the late Ed Garvey said, “but that he has such a higher regard for the truth that he uses it sparingly.” 


How Do You Hold Junk Scientists Accountable?

posted by Judge_Burke @ 14:30 PM
August 21, 2017

Immunity is a bedrock principle for many participants in the criminal justice system. Wrongfully withheld evidence that leads to years on death row may shock the conscience, but in Connick v. Thompson, 563 U.S. 51 (2011), the Supreme Court held there is no civil liability generally for those responsible.

In his concurrence, Justice Scalia wrote, “Brady mistakes are inevitable. So are all species of error routinely confronted by prosecutors:  authorizing a bad warrant; losing a Batson claim; crossing the line in closing argument; or eliciting hearsay that violates the Confrontation Clause. Nevertheless, we do not have “de facto respondeat superior liability,” Canton, 489 U.S., at 392, 109 S.Ct. 1197, for each such violation under the rubric of failure-to-train simply because the municipality does not have a professional educational program . . .”  

So, it is not surprising that a federal appeals court concludes that “mere gross negligence” on the part of expert witnesses peddling junk science was not enough to overcome the presumption of immunity they enjoy under law. 5TH U.S. CIRCUIT COURT OF APPEALS.

But, how does the system hold people accountable? We have seen enough junk science that has lead to wrongful convictions to, at a minimum, prompt a thoughtful discussion by criminal justice leaders about how to hold people accountable. 


What if Next Year Every Court Committed to Doing This?

posted by Judge_Burke @ 14:30 PM
August 18, 2017

In an effort to encourage girls and young women to consider a career in the law, Pierce County’s Superior Court is hosting the National Association of Women Judges, Color of Justice Program, on August 17, 2017.

The one-day event seeks to encourage girls, aged 11-18 years old, to consider a career in the law and the judiciary.  The program features time for the girls to meet, participate with, and observe the legal process through the eyes of female members of the judiciary. More than 80 girls from across Western Washington are registered to attend.

Pierce County Superior Court Judge G. Helen Whitener has championed and coordinated the event to connect girls from marginalized communities to female judges who can mentor and empower them.  Judge Whitener, who emigrated from Trinidad & Tobago and is a member of the LGBTQ community, has been nationally recognized for her work to bring greater diversity to the judiciary.

“It is important that we create a space to foster diversity in all of its forms,” said Judge Whitener. “To the extent that diversity is not reflected in our legal system, we need to create it. That’s why I’m focused on engaging the next generation of future judges.”

More than 20 women judges from Western Washington will participate as speakers, panelists and mentors. They represent city, county, state, federal and tribal courts. Supreme Court Justice Mary Yu will be giving the keynote address titled, “How Someone Like Me Became a Justice.”

The National Association of Women Judges (NAWJ) created the original Color of Justice Event and hosts similar events across the United States.


There are many people in the United States who are uncomfortable with President Trump’s response to the violence in Charlottesville. Leaders from both political parties called upon the President to say something more forceful. Surely, the critics argue, thoughtful leaders should condemn the KKK and neo-Nazis. The problem with racism is ambiguity of language simply does not work. Racism is wrong. There is no grey or nuance. Racism is wrong.

Should a judge speak out about racism in our society or condemn the KKK? There are many reasons why it might not be appropriate for a Virginia judge to remain silent. Some Virginia judge is surely going to preside over litigation about what happened. But, what about judges in the 49 other states? Most will not say anything. Fear of ethical constraints is the most likely reason. So perhaps the United States judges could learn from the example of the Chief Justice of Canada.

Canada committed “cultural genocide” against Indigenous peoples through policies like Indian residential schools, which were created to wipe out the languages and cultures of pre-existing nations, said the country’s top judge in a speech delivered in 2015. Chief Justice Beverly McLachlin said Canada’s treatment of Indigenous peoples in the 19th and early 20th Century was aimed at annihilating their culture and language in a bid to solve John A. Macdonald’s “Indian problem” for good.

“In the buzz-word of the day, assimilation; in the language of the 21st Century, cultural genocide,” said the Chief Justice. “The most glaring blemish on the Canadian historic record relates to our treatment of the First Nations that lived here at the time of colonization.”

McLachlin said “an initial period cooperative inter-reliance grounded in norms of equality and mutual dependence” was supplanted by “the ethos of exclusion and cultural annihilation.”

She also listed some of the tactics Canada used to “solve” the Indian problem.

“Early laws forbade treaty Indians from leaving allocated reservations. Starvation and disease were rampant. Indians were denied the right to vote. Religious and social traditions, like the Potlatch and the Sun Dances, were outlawed. Children were taken from their parents and sent away to residential schools where they were forbidden to speak their native languages, forced to wear white man’s clothing, forced to observe Christian religious practices, and not infrequently subjected to sexual abuse,” said McLachlin.

McLachlin said for Macdonald and other Canadian officials at the time, “‘Indianess’ was not to be tolerated; rather it must be eliminated.”

McLachlin said Prime Minister Stephen Harper’s 2008 apology and the creation of the Truth and Reconciliation Commission, which were both the result of the multi-billion dollar residential school settlement between Ottawa, the churches and survivors, are examples of Canada coming to grips with this dark legacy.

“Yet the legacy of intolerance lives on in the lives of First Nation people and their children—a legacy of too much poverty, too little education and over-representation of Aboriginal people in our courts,” she said. “The lessons from the Canadian experience are replicated where intolerance has been systemically imposed—from Nazi attempts to eliminate Jews, gypsies and homosexuals, to Apartheid of South Africa, to the genocide of Rwanda. Intolerance doesn’t work and imposes enormous and unacceptable costs. Ultimately, the only way forward is the way of tolerance.” 

The Globe and Mail first reported on the speech.


Professor Ram Should Have Written This Article Years Ago

posted by Judge_Burke @ 15:02 PM
August 16, 2017

If you are a judge in Minnesota, you might be wishing that this article was written years ago. Defense counsel access to source code plagued the Minnesota courts (state and federal) for several years. The result was many law enforcement agencies switched to preferring blood tests for which lab testing availability was not prepared. Prior to the source code litigation, blood tests were reasonably rare. Now there are nightly calls to judges seeking search warrants for blood tests.

Natalie Ram (University of Baltimore – School of Law) has posted Innovating Criminal Justice (Northwestern University Law Review, Forthcoming) on SSRN.

Here is the abstract:

From secret stingray devices that can pinpoint a suspect’s location to source code secrecy surrounding alcohol breath test machines, advanced forensic DNA analysis tools, and recidivism risk statistic software, the use of privately developed criminal justice technologies is growing. So too is a concomitant pattern of trade secret assertion surrounding those technologies. This Article charts the role of private law secrecy in shielding criminal justice activities, demonstrating that such secrecy is pervasive, problematic, and yet ultimately unnecessary for the production of well-designed criminal justice tools.

In so doing, this Article makes three contributions to the existing literature. First, the Article establishes that private secrecy tools — trade secrets foremost among them — now permeate American criminal justice, shielding privately developed criminal justice technologies from vigorous cross-examination and review. Second, the Article argues that private law secrecy surrounding the inner workings or even the existence of these criminal justice technologies imposes significant practical and potentially constitutional costs on individual defendants, the criminal justice system, and the development of well-designed criminal justice technology more broadly. Third, the Article brings the extensive literature on innovation policy to bear on the production of privately developed criminal justice technologies, demonstrating that trade secrecy is not essential to either the existence or operation of those technologies. The Article proposes alternative innovation policies that the government, as both a funder of research and the primary purchaser of criminal justice technologies, is uniquely well positioned to implement.