Archive for January, 2019

Perhaps The Judge Should Have Been More Careful

posted by Judge_Burke @ 21:59 PM
January 31, 2019

There is an apocryphal story about a trial lawyer who asked to approach the bench and said to the judge, “Your honor, I don’t mind your trying my case for me but please don’t lose it for me.” Thanks to Judge Wayne Gorman for sending this case my way:

In R v. Quintero-Gelvez, 2019 ABCA 17 January 18, 2019, the accused was convicted of the offence of sexual assault.  He appealed from conviction.  One of the grounds raised alleged that the trial judge’s interference with his counsel’s cross-examination of the complainant caused the trial to be unfair.

The appeal was allowed and a new trial ordered. The Alberta Court of Appeal concluded that the trial judge’s interventions “compromised” the defence (at paragraph14):

A review of the transcript of the cross-examination of the complainant reveals a significant number of situations in which the trial judge prevented defence counsel from asking certain questions without having first received an objection to them from Crown counsel, or rephrasing them so that her version of the question is answered, not that of the defence. Many of these situations would not, alone, be sufficient to establish that the trial had been unfair, or that counsel had not been able to advance the defence. However, taken cumulatively and in the context of the many additional interjections made by the trial judge limiting cross-examination of the complainant, we conclude that the defence was compromised.

The Court of Appeal noted that the trial judge “interjected almost 50 times in the course of the cross-examination of the complainant” (at paragraph 13).  The Court of Appeal provided a number of examples.  One involved an attempt by defence counsel to cross-examine the complainant on what she told medical personnel, concerning the incident, when she was being examined at the hospital.

Cross-examination on Comments Made to Medical Personnel:

The Court of Appeal indicated that the trial judge “refused to allow defence counsel to ask the complainant if she had testified to events that she had not described to medical personnel attending her at the hospital:

Trial Judge: …Are you going to be asking this witness to comment on the medical records?

Defence Counsel: Very little.

Trial Judge: How can she comment on medical records that she did not prepare?

Defence Counsel: It—it –there are notes where she’s—it’s either an RN or a doctor saying what was told to her by [the complainant].

Trial Judge: I am not following you. Are you alleging that she made prior inconsistent statements to medical personnel?

Defence Counsel: Not—not inconsistent, just statement that—just statements that did not come out in testimony.

Trial Judge: But those statements would not be admissible for the truth—well, they might be admissible for the truth of their content, depending on whether the Crown is…

Crown Counsel: Well, she—

Trial Judge:–seeking to admit them as K.G.B. or something, but if they are consistent statements, they are not admissible for the truth of their content, prior consistent—

Defence Counsel: She can admit—

Trial Judge: Prior consistent statements are inadmissible.

Defence Counsel: Yeah….I want to ask her—

Trial Judge: I think he can ask her, Did you tell the doctor such and so.

Defence Counsel: That’s it.

Trial Judge: Well, just ask her that.

Defence Counsel: So the—doctor’s notes that I’m looking at …

Trial Judge: She cannot comment on something another person prepared.

The Court of Appeal concluded that the “last statement is an error of law”. The Court of Appeal concluded that defence counsel “was entitled to ask her if she told the doctor at the hospital that she thought she’d been drugged because she could not remember periods of time and was dizzy, and, if the medical records did not record her reporting this to the doctor, to ask her about that inconsistency” (at paragraph 22).


How Should We Think of Expert Testimony?

posted by Judge_Burke @ 21:22 PM
January 29, 2019

Jason Chin (The University of Queensland – T.C. Beirne School of Law) has posted Abbey Road: The (Ongoing) Journey to Reliable Expert Evidence ((2018) 96:3 Canadian Bar Review 422-459) on SSRN. Here is the abstract:

Canadian courts draw a tenuous distinction between expert scientific evidence and what they characterize as specialized knowledge gained through the expert witness’s experience, training, and research. This characterization is based on unclear criteria and has significant consequences. Notably, specialized knowledge regularly receives considerably less scrutiny than that which is characterized as science, while still often serving as powerful inculpatory evidence in criminal trials. Moreover, specialized knowledge is often provided by figures that carry an air of authority, like police officers and scientists. This article focuses on the leading opinion on specialized knowledge, the Court of Appeal for Ontario’s decision in R v Abbey. An analysis of Abbey’s application to three fields of contested specialized knowledge (including the evidence the Abbey Court admitted, but fresh evidence revealed as fundamentally unreliable) provides two general insights. First, while Abbey could be interpreted as providing for a flexible and probing analysis of all expert evidence, courts have often relied on it to justify giving almost no scrutiny to specialized knowledge. Second, this review of the post-Abbey jurisprudence suggests that scrutiny focused on the transparency of the expert’s data and analysis, and whether that analysis can reliably be applied to the relevant factual question, may provide a valuable way to evaluate expertise.


Risk Assessment

posted by Judge_Burke @ 19:47 PM
January 28, 2019

This new article written by Melissa Hamilton is available via SSRN.  Here is its abstract:

Algorithmic risk assessment holds the promise of reducing mass incarceration while remaining conscious of public safety.  Yet presumptions of transparent and fair algorithms may be unwarranted. Critics warn that algorithmic risk assessment may exacerbate inequalities in the criminal justice system’s treatment of minorities.  Further, calls for third party auditing contend that studies may reveal disparities in how risk assessment tools classify minorities. A recent audit found a popular risk tool overpredicted for Blacks.

An equally important minority group deserving of study is Hispanics.  The study reported herein examines the risk outcomes of a widely used algorithmic risk tool using a large dataset with a two-year followup period. Results reveal cumulative evidence of (a) differential validity and prediction between Hispanics and non-Hispanics and (b) algorithmic unfairness and disparate impact in overestimating the general and violent recidivism of Hispanics.


Thinking About What It Means To Be A Juror

posted by Judge_Burke @ 18:20 PM
January 25, 2019

Youngjae Lee (Fordham University School of Law) has posted The Criminal Jury, Moral Judgments, and Political Representation (University of Illinois Law Review, Forthcoming) on SSRN. Here is the abstract:

Was the sexual act consensual? Did the defendant have a reasonable belief that he was in imminent danger of death by an attacker? Did the police use excessive force? Did the defendant act in a heinous or cruel manner? Did the defendant act with depraved indifference to human life? These are some of the questions that criminal juries encounter. Determinations of such questions involve a combination of factual and moral questions, both questions about what happened and questions about the evaluative significance of what happened. This feature of the criminal jury — that the jury routinely decides normative questions — is frequently noted but is rarely examined. What does it exactly mean when we say that juries make normative determinations, and what is the nature of the inquiry that the jurors are engaging in when they consider moral questions in this particular setting? More specifically, this Article asks whether a juror, when making moral judgments, should follow his or her individual moral beliefs or identify and implement the community’s perspective.

Many things said about the criminal jury appear to support the view that the jurors should attempt to replicate the community’s perspective. It is often said, for instance, the criminal jury serves as the community’s conscience, representative, or fiduciary, and such formulations suggest an obligation on the part of the jurors to reproduce the community’s perspective. This Article argues that despite the popularity of such accounts, they are either too indeterminate to imply an obligation on the part of the jurors to reproduce the community’s perspective, or in conflict with the fundamental obligation of jurors to adjudicate fairly and accurately. This Article, therefore, concludes that we are better off jettisoning the talk of the criminal jury as the community’s conscience, representative, or fiduciary, at least in this context, and should instead embrace the notion that jurors fulfill their roles in the criminal justice system most effectively when they vote as individuals, not as representatives, by applying legal standards to particular situations and bringing a diversity of viewpoints to the task.


Judge Patricia Wald

posted by Judge_Burke @ 20:24 PM
January 24, 2019

Although she became Chief Judge of the DC Court of Appeals, Patricia Wald never made it to the Supreme Court, writes Linda Greenhouse, but she still had a profound impact on American law and justice. Read Greenhouse’s article in THE NEW YORK TIMES.


What Will The United States Supreme Court Do About Dogs?

posted by Judge_Burke @ 21:13 PM
January 23, 2019

Professor Sherry Cobb has posted the following article:

Who’s a Good Boy? US Supreme Court Considers Again Whether Dog Sniffs Are Searches

The US Supreme Court is currently considering whether to grant review in Edstrom v. Minnesota. The case presents the issue whether police must obtain a search warrant before bringing a trained narcotics dog to sniff at a person’s door for illicit drugs. The Minnesota court held that police need no warrant, and the petitioner (as well as amici in the academy) have challenged that conclusion. In this column, I will consider some of the most interesting arguments that bear on the issue that may come before the Court.

Dog Sniffs and Prior Cases

The Supreme Court has previously had occasion to rule on the constitutional significance of a dog sniff for contraband. In United States v. Place, the Court said (in dicta) that a trained police dog may sniff at a suspect’s suitcase without triggering application of the Fourth Amendment. The Court explained that a dog sniff exposes only the presence or absence of contraband and is accordingly unintrusive. Under Katz v. United States, as subsequently interpreted, police need no warrant, no probable cause, and no reasonable basis for investigating, in the absence of a reasonable expectation of privacy that police intend to infringe.

The dicta became holding in Illinois v. Caballes. The Court there held that police may, without a warrant or probable cause, deploy a trained narcotics dog to sniff at—and thereby expose the presence of contraband within—a vehicle. The Court said that people lack a reasonable expectation of privacy in the fact that they possess contraband, the only fact that a dog sniff of the kind at issue might disclose. An earlier case, United States v. Jacobsen, unrelated to dogs, had similarly approved of investigative measures that precisely expose a guilty fact about a suspect’s property with only minimal interference with property or privacy.

After these cases came down, it seemed that a dog sniff—assuming no physically intrusive behavior by the dog (or human)—fell outside the scope of Fourth Amendment protection. In Florida v. Jardines, however, things took a surprise turn. There the Court held that police had violated the Fourth Amendment when a trained narcotics dog whom they brought to the door of a suspect’s home moved around the front door in a lively fashion to trace the smells coming out of the house, all without a warrant. In a concurrence in the judgment, Justice Kagan said that we should view the trained narcotics dog as analogous to a piece of technology, and the Court had already held in Kyllo v. United States that using technology unavailable to the general public to detect what is happening inside a home constitutes a “search” for Fourth Amendment purposes, presumptively requiring a warrant.


News About Fines & Fees

posted by Judge_Burke @ 18:00 PM
January 16, 2019

For USA TODAY, FFJC’s Lisa Foster and Fair and Just Prosecution’s Miriam Krinsky argue that prosecutors can improve criminal justice fairness and eliminate perverse incentives by changing their fines and fees practices and advocating for policy changes. “Fines and fees are regressive & disproportionately impact low-income communities of color, serving mainly to perpetuate cycles of debt & incarceration. This framework diverts law enforcement resources from the job of solving serious crime and uses scarce resources to collect revenue.”

In The New York Times Magazine, Matthew Shaer investigates fines and fees practices across America, consulting FFJC Co-Director Joanna Weiss among many others: “Cities use the justice system to wring revenue out of the poorest Americans — the people who can afford it the least. Criminal-justice debt is now a de facto way of funding a lot of American cities.” This lengthy piece is well worth your time.

For the New York Daily News, Errol Louis argues that New York should stop suspending driver’s licenses to coerce payment of fines and fees, noting that FFJC has launched a campaign in New York to do just that. FFJC is working in partnership with the National Center for Law and Economic Justice and the Bronx Defenders to end driver’s license suspensions that are driven by poverty.


Forensic Evidence & The Confrontation Clause

posted by Judge_Burke @ 20:29 PM
January 14, 2019

Ronald J. Coleman and Paul F. Rothstein (Georgetown University Law Center and Georgetown University Law Center) have posted A Game of Katso and Mouse: Current Theories for Getting Forensic Analysis Evidence Past the Confrontation Clause (American Criminal Law Review (Forthcoming)) on SSRN. Here is the abstract:

The Sixth Amendment’s Confrontation Clause ensures that an “accused” in a “criminal prosecution[]” has the right “to be confronted with the witnesses against him [.]” Although perhaps a simple concept, defining the scope of confrontation rights has proved extremely difficult. The law has had particular difficulty scoping confrontation rights in forensic analysis cases, such as those where the prosecution seeks to utilize a laboratory report of DNA, blood alcohol content, narcotics, or other “CSI” type analysis. In this connection, Justice Gorsuch recently authored an opinion dissenting from denial of certiorari in Stuart v. Alabama, in which he recognized the “decisive role” of forensic evidence in modern criminal trials, but decried the lack of clarity in this area of law. The purpose of this Article is to analyze modern Confrontation Clause and forensic analysis jurisprudence, and to present six theories or gateways through which to argue that forensic analysis evidence is admissible consistent with the Clause. The theories presented in this Article are not intended to be employed individually, but rather combined to diminish the possibility that the Confrontation Clause will necessitate exclusion. To aid in the presentation of these theories, the Article will discuss the recent illustrative cases of U.S. v. Katso and Stuart v. Alabama, and explore how local stakeholders might utilize Katso-like reasoning to support their positions.


Thinking About Sentencing Disparity

posted by Judge_Burke @ 21:35 PM
January 9, 2019

The luck of the draw in federal sentencing.

“In most cities, the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case,” concludes a new report that analyzed the sentencing practices of federal trial judges in 30 major cities.

Disparities in sentences are growing as judges move away from the “mandatory” requirements of sentencing guidelines. So if there is a luck of the draw in federal courthouses what about your courthouse?

Most people are not federal court defendants but are defendants in state (or Canadian) courts.

What steps should judges take to reduce disparity? It is not a question easily answered. Judges differ at an appellate level why should anyone expect something different at the trial court? Perhaps a starting point is data collection.

It it plausible that there is not as much difference in sentencing in your courthouse. But maybe there is…  see SENTENCING LAW AND POLICY for more.


The Developing Brain

posted by Judge_Burke @ 21:48 PM
January 8, 2019

Susan Frelich AppletonDeanna M. Barch and Anneliese Schaefer (Washington University in St. Louis – School of Law, Washington University in St. Louis – Department of Psychological and Brain Sciences and Washington University in St Louis – Department of Neurology) have posted The Developing Brain: New Directions in Science, Policy, and Law–Introduction (57 Washington University Journal of Law & Policy 1 (2018)) on SSRN. Here is the abstract:

Scientific findings on brain development increasingly are influencing how we understand children’s social and emotional development and how we interpret their behavior. Such understandings and interpretations, in turn, can shape public policy and legal precedent, as shown by the U.S. Supreme Court’s recognition of constitutional limitations on criminal punishments imposed on young offenders.

This essay introduces a transdisciplinary symposium that explores new learning about the negative impact of “early stressors” on brain development and the opportunities that such learning presents for law and policy reforms.

he symposium, part of a Washington University initiative on Neuroscience and Society, builds on the influence that neuroscience has already exerted on criminal law and juvenile justice and examines both the promise and the challenges of attempting to replicate this relationship in other contexts. For example, one challenge emerges from American jurisprudence’s distinction between constitutional limits on government action (as in the juvenile justice cases) versus calls for government support in response to demonstrated individual and societal benefits (as in interventions to minimize early stressors).

The symposium contributions reflect the diverse expertise of the authors—including law, medicine, neuroscience, psychology, economics, public health, and social work, as well as insights from those with on-the-ground experience in policy making and implementation. Thanks to the wide array of perspectives, the symposium presents a conversation not only about how neuroscience might influence law and policy but also about how neuroscientists can undertake research that would prove most useful in influencing law and policy. For the full symposium, entitled Bringing Science to Law and Policy, see volume 57 of the Washington University Journal of Law & Policy (available online).