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, Law.com 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.

Law.com 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 Law.com. “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 Law.com. “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.”



posted by Judge_Burke @ 15:48 PM
February 9, 2017

Judges often make decisions framed as what is reasonable. The judge’s background, experience as a judge and, yes, implicit bias can color the result. So thinking about constitutional reasonableness is something we all ought to do. 

Brandon L. Garrett (University of Virginia School of Law) has posted Constitutional Reasonableness on SSRN. Here is the abstract:

The concept of reasonableness pervades constitutional doctrine. The concept has long served to structure common law doctrines from negligence to criminal law, but its rise in constitutional law is more recent and diverse. This Article aims to unpack surprisingly different formulations of what the term reasonable means in constitutional doctrine, which actors it applies to, and how it is used. First, the underlying concept of reasonableness that courts adopt varies, with judges using competing objective, subjective, utility-based or custom-based standards. For some rights, courts incorporate more than one usage at the same time. Second, the objects of the reasonableness standard vary, assessed from the perspective of judges, officials, legislators, or citizens, and from the perspective of individual decision-makers or general institutional or government perspectives. Third, judges may variously apply a constitutional reasonableness standard to a right, to the assertion of defenses, waivers, or limitations on obtaining a remedy for the violation of a right, or to standards of review. The use of the common term “reasonableness” to such different purposes can blur distinctions between each of these three categories of standards. The flexibility and malleability of reasonableness may account for its ubiquity and utility. Entire constitutional standards can – and have – shifted their meaning entirely as judges shift from one concept or usage of reasonableness while appearing not to change the “reasonableness” standard or to depart from precedent. That ambiguity across multiple dimensions explains both the attraction and the danger of constitutional reasonableness. In this Article, I point the way to an alternative: regulatory constitutional reasonableness, in which reasonableness is presumptively informed by objective and empirically-informed standards of care, rather than a set of shape-shifting inquiries.


What is the Right Thing to Do?

posted by Judge_Burke @ 15:31 PM
February 8, 2017

Children can do horrific things. There are children who are out of control, and it is fair for society to hold people accountable. All of this sounds straightforward. But, sentencing children for horrific acts requires the best of judges. Insight into the law and the cognitive development of children is certainly a perquisite. Among the best blogs is Professor Douglas Berman’s Sentencing Law & Policy blog. He had this thoughtful and troubling post:  

Jody Kent Lavy, who is executive director of the Campaign for the Fair Sentencing of Children, has this notable new commentary headlined “Supreme Court’s will on juvenile offenders thwarted.” Here are excerpts:

A little more than a year ago, the U.S. Supreme Court ruled 6-3 in Montgomery vs. Louisiana that Henry Montgomery — and anyone else who received mandatory life without parole for a crime committed when they were younger than 18 — was serving an unconstitutional sentence and deserved relief.

The sweeping opinion augmented three earlier decisions that had scaled back the ability to impose harsh adult penalties on youth, recognizing children’s unique characteristics made such penalties cruel and unusual. The Montgomery case made clear that the Eighth Amendment bars the imposition of life without parole on youth in virtually every instance.

But, in violation of the decision, prosecutors are seeking to re-impose life without parole in hundreds of cases, and judges are imposing the sentence anew. Hundreds of people serving these unconstitutional sentences — primarily in Louisiana, Pennsylvania and Michigan — are still awaiting their opportunities for resentencing. Henry Montgomery is among them.

I recently met Montgomery, now 70, at the Louisiana State Penitentiary in Angola, notorious as a place where most of its thousands of prisoners are destined to die. Montgomery, who is African-American, was convicted of killing a white police officer as a teenager. At the time, John F. Kennedy was president. Though his resentencing has yet to be scheduled, prosecutors say they plan to again seek life without parole.

Given last year’s ruling from the nation’s highest court, it might seem surprising that Montgomery, remorseful for the crime he committed more than five decades ago, is still languishing in prison. This is indeed outrageous, and it highlights the failings of our justice system, especially as it pertains to juveniles….

Henry Montgomery is living on borrowed time. He is a frail, soft-spoken, generous man. When it was lunchtime at the prison, I noticed that he wasn’t eating. When I asked why, he said he wasn’t sure there was enough food to go around. On the anniversary of the ruling that was supposed to bring him a chance of release, we owe it to Montgomery, as well as the thousands of others sentenced as youth to die in prison, to seek mercy on his behalf. We cannot give up until the day comes when children are never sentenced to life — and death — in prison.


So, How Much Do You Need for Reasonable Suspicion?

posted by Judge_Burke @ 15:30 PM
February 6, 2017

Officers don’t have to actually see drugs pass in an apparent hand-to-hand transaction in a high crime area to have reasonable suspicion. Reasonable suspicion isn’t a certainty. United States v. Slaughter, 2017 U.S. Dist. LEXIS 569 (W.D.Ky. Jan. 4, 2017):

The R&R labels the officers’ observation as a hand-to-hand drug transaction. Both detectives at the suppression hearing testified, however, that they did not see drugs, or anything, being exchanged, but instead observed hand movements consistent with a hand-to-hand drug transaction. (R&R 13; Hr’g Tr. 28:7-11, 37:2-5, 43:14-16). Defendant emphasizes this fact in urging that reasonable suspicion is lacking, but his argument misses the [*10] mark, as a finding of reasonable suspicion does not require certainty, and the appearance of criminal activity is enough to give rise to reasonable suspicion. See Flores, 571 F.3d at 545. Thus, the fact that the detectives did not observe what was handed to Defendant is not determinative. The detectives witnessed Scott reach into his pocket and then place his hand inside of Defendant’s car window, actions that lead the detectives to believe a drug transaction was occurring, an activity with which they are familiar through their law enforcement experience. (Hr’g Tr. 29:3-8, 37:2-5, 39:4-6, 43:14-16); see Paulette, 457 F.3d at 606 (“[T]he officers had a reasonable suspicion that [the defendant] was engaged in criminal activity based upon his hand movements consistent with drug-dealing activity, efforts to evade the police upon noticing them, and presence in a high crime area.” (citation omitted)) Therefore, the hand movements coupled with the fact that Defendant was in a high crime area would support the reasonable belief that criminal activity was occurring and thus, the officers had reasonable suspicion to seize Defendant.