Now What?

posted by Judge_Burke @ 13:03 PM
June 17, 2020

There are many courts in the United states and Canada that are struggling with how to fairly sentence in an era of a pandemic.

Roee Sarel (Institute of Law and Economics, University of Hamburg) has posted Crime and Punishment in Times of Pandemics on SSRN. Here is the abstract:

How should we think about crime deterrence in times of pandemics? The economic analysis of crime tells us that potential offenders will compare the costs and the benefits from crime and from innocence and then choose whichever option that is more profitable. We must therefore ask ourselves how this comparison is affected by the outbreak of a pandemic and the policy changes which may accompany it, such as governmental restrictions, social distancing, and economic crises. Using insights from law and economics, this article investigates how the various components in the cost-benefit analysis of crime might change during a pandemic, focusing on COVID-19 as a test case. Building on classical theoretical models, existing empirical evidence, and behavioral aspects, the analysis reveals that there are many potentially countervailing effects on crime deterrence. The article thus highlights the need to carefully consider which aspects are applicable given the circumstances of the pandemic, as whether crime deterrence will increase or decrease should depend on the strength of the effects at play.


What Should A Judge Say?

posted by Judge_Burke @ 13:41 PM
June 16, 2020

Explanations are critically important for litigants and the public to understand why judges decide cases. We tend to be good at the law but not necessarily good at explaining ourselves. Want a practice pointer? Every educational program you go to until you retire from the bench sit there , listen and think how might I explain this. It isn’t necessarily about being affirmed on appeal. A judge I admired once said, “I have been affirmed so many times by the court of appeals that I have lost all respect for them.” The reason for explanations is each decision incrementally advances or detracts from confidence in the courts. Judges can be eloquent and judges can say incredibly rude things particularly when making oral rulings. And sometimes there is just a fine line where reasonable minds differ as illustrated by this recent commentary about a Canadian case.

Revisiting R v. S. (R.D.), 1997: A Case About a Black Judge on “Trial” for Acquitting a Black Boy 

by Heather Douglas

“It wasn’t that long ago in Canada when our justice system put a Black judge on trial for acquitting a Black boy of allegedly running his bike into an officer’s leg – her offence? Speaking truth to power by stating that sometimes police over-react when dealing with Black youth.” – Professor David Tanovich @dtanovich 

In R v S. (R.D.), 1997 CanLII 324 (SCC), R.D.S. was a young person accused of assaulting a police officer. At trial, the testimonies of the police officer and the accused differed in material ways. The trial judge acquitted R.D.S. after trial. The case was appealed on the issue of whether there was a reasonable apprehension of bias.

At trial, R.D.S. testified that while riding his bike to his grandmother’s house, he saw his cousin being arrested by a police officer. R.D.S. tried to speak to his cousin. The police officer told him to “Shut up, shut up, or you’ll be under arrest too.” When R.D.S. continued to ask his cousin if he should call his mother, Constable Steinburg arrested R.D.S. and put him in a choke hold. R.D.S. stated that he could not breathe. R.D.S. denied running his bike into anyone or pushing the police officer.

In the course of the trial judge’s judgment, she commented that:











Justice Major writing for the dissent (Lamer C.J., Sopinka J., and Major J.) stated that the appeal should not be decided on questions of racism but instead on how courts decide cases. “A fair trial is one that is based on the law, the outcome of which is determined by the evidence… Did the trial judge here reach her decision on the evidence presented at the trial or did she rely on something else?”

Justice Major wrote that the judge’s statement “was stereotyping all police officers as liars and racists, and applied this stereotype to the police officer in the present case… Whether racism exists in our society is not the issue. The issue is whether there was evidence before the court upon which to base a finding that this particular police officer’s actions were motivated by racism. There was no evidence of this presented at trial.”

Justice Major continued that the life experience of a judge is an important ingredient to understand human behaviour and assess credibility. However, it has no value in reaching conclusions for which there is no evidence. “Life experience is not a substitute for evidence… In my opinion the comments of the trial judge fall into stereotyping the police officer… judges cannot judge credibility based on irrelevant witness characteristics.”

Justice L’Heureux-Dube and Justice McLachlin found the comments of the trial judge Justice Sparks to reflect an appropriate recognition of the facts in evidence in the case and the context of the case, which was well known to Justice Sparks and to any well-informed member of the community. for the rest of the commentary:


What Should Our Court Do About The Pandemic?

posted by Judge_Burke @ 21:14 PM
June 11, 2020

The resources of federal courts are different from those in state and Canadian courts but this report may still be of interest:

A comprehensive new report on conducting federal jury trials and convening grand juries during the pandemic details the number of factors for courts to consider, from changes to prospective juror questionnaires to creating safe spaces for jurors to deliberate safely.

“Jury trials are the bedrock of our justice system, expressly provided for in the Constitution and in the Sixth and Seventh Amendments,” the report says. “When each court determines that the time is right, the judiciary must reconstitute jury trials during the COVID-19 pandemic.”

The newly released 16-page report was written by a group of federal trial judges, court executives, and representatives from the federal defender community and the Department of Justice as part of the work of the COVID-19 Judiciary Task Force.


Ending Mass Incarceration

posted by Judge_Burke @ 13:30 PM
June 9, 2020

POLITICO Magazine Justice Reform: The Decarceration Issue, presented by Verizon : Over the past decade, the longstanding challenge of criminal-justice reform has emerged into the spotlight with a new twist: Both Republicans and Democrats are on board with reform. But if both parties want to lower the incarceration rate, why are U.S. jail and prison populations still so high? The latest series from POLITICO Magazine searches for answers to this important question and takes a deeper look into what it will take to make progress toward real justice reform. READ THE FULL ISSUE.


Court Finds Questions About Victim’s Religion Violated Rule 610

posted by Judge_Burke @ 13:30 PM
June 8, 2020

Perhaps it was just an overly aggressive trial lawyer but questioning a witness’s religious convictions is almost unheard of. Until this:

By Evidence ProfBlogger

Federal Rule of Evidence 610 states that

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

A good example of a line of questioning that violates Rule 610 can be found in the recent opinion of the Superior Court of New Jersey, Appellate Division in Grewal v. Greda, 2020 WL 2464760 (2020).

In Grewal, the New Jersey Attorney General and the Director of the New Jersey Division on Civil Rights brought a claim that the defendant violated the New Jersey Law Against Discrimination by inquiring about the religion of Fatma Farghaly, a Muslim woman, during her attempt to lease an apartment from him; by refusing to show or lease an apartment to her on the basis of her religion; and by making a statement concerning the gender of a Division investigator during the investigator’s inquiry about leasing an apartment from him.

During Farghaly’s testimony, defense counsel asked her questions, such as the following:

DEFENSE COUNSEL: Isn’t it true that the, that the Muslim practice of deception only, also implies, also applies and is prevalent in Islamic politics? Is it al …, doesn’t, not only does it apply to war, but it also applies to politics and other types of deceptions when you’re dealing with people of non-Muslim faith?

FARGHALY: That’s not true.

DEFENSE COUNSEL: Are you familiar with the Quran?

FARGHALY: Of course.

DEFENSE COUNSEL: 16:106 in the Teachings of Deception. Have you ever read that paragraph?

FARGHALY: In Arabic, not in English.

DEFENSE COUNSEL: You’ve read it?

FARGHALY: In Arabic, not in English.


The cross-examination about Islam did not end there. While questioning Farghaly about her income tax returns, defense counsel asked her to confirm the spelling of her accountant’s name, “F-A-R-E-S … K-A-D-A-N,” and then asked, “he’s Muslim too, right?” When he cross-examined Farghaly about treatment by her physician, defense counsel said, “and, just for the record, can you please pronounce his last name because I have difficulty with that name ….” Farghaly responded her physician’s name was “Elsharif,” and defense counsel asked, “Elsharif? He’s Muslim, too, as well?” Farghaly responded in the affirmative.

On appeal, the court found that

The cross-examination of Farghaly about the principles of her religion violated N.J.R.E. 610, which plainly and expressly provides “[e]vidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’s credibility is impaired or enhanced.”…

Defense counsel’s questioning about Farghaly’s religious beliefs and the principles in the Quran constituted a clear and direct attack on her credibility. Indeed, the questioning sought information that had no substantive, probative value to any factual issue presented in the matter. Through the cross-examination, defense counsel sought to establish the Quran, the religious text central to Farghaly’s faith, directed and condoned lying and telling falsehoods as one of its fundamental principles. The cross-examination further sought to establish Farghaly’s faith included another tenet showing a bias affecting her credibility as a witness—her religion required she view anyone who did not share her faith as an infidel.


Competence of Child Witnesses

posted by Judge_Burke @ 13:00 PM
June 5, 2020

Sometimes it is a difficult question: should you find a child witness competent to testify? Children are not as mature as adults and there are myths about their capacity to tell the truth. There is no doubt that children can be intimidated by the court process.

By Evidence ProfBlogger

Similar to its federal counterpartDelaware Rule of Evidence 601 states that

Every person is competent to be a witness unless these rules provide otherwise.

Attorneys most commonly attempt to have child witnesses deemed incompetent under Rule 601, but they are usually unsuccessful, as was the case in Cathell v. State, 2020 WL 1157921 (Del. 2020).

In Cathell, Marisa Cathell was convicted of Second-Degree Assault of a minor based upon physically abusing a four year-old child. At trial, the child testified against Cathell after a colloquy with the judge that included the following:

Q. And so if I say to you – what color is my hair?

A. Black.

Q. And if I say to you no, I have purple hair, would that be the truth or a lie?

A. A lie.

Q. Ok. And if I say to you, you have very pretty brown hair, would that be the truth or a lie?

A. The truth.

Q. The truth. Okay. And if I say to you there’s a dinosaur sitting in that chair over there, would that be the truth or a lie?

A. A lie because there’s no dinosaur.

* * *

Q. So which is better telling the truth or telling a lie?

A. The truth.

* * *

Q. So is it good to tell the truth or bad to tell the truth?

A. It’s good to tell the truth.

Q. Is it bad to tell a lie or good to tell a lie?

A. It’s a bad thing to tell a lie.

In rejecting Cathell’s ensuing appeal, the Supreme Court of Delaware held that 

Based on this colloquy, the court found that the child understood the difference between the truth and a lie; she understood that she needed to tell the truth; and she promised that she would tell the truth. After reviewing the Superior Court’s voir dire with the child, it is clear that the court did not abuse its discretion under Rule 601 by allowing the child to testify and allowing the jury to determine the weight and credibility it would place on the testimony.


A Webinar That Could Be Interesting

posted by Judge_Burke @ 14:19 PM
June 4, 2020

Alarming disparities within the COVID-19 pandemic — such as higher hospitalizations and death rates among African Americans — are sadly predictable and highlight the urgent need to address the root causes of health inequities.

The American Public Health Association is hosting this four-part webinar series to give an in-depth look at racism as a driving force of the social determinants of health and equity. The series will explore efforts to address systems, policies and practices designed to limit and shape opportunities for people of color. Our presenters will highlight collective and individual actions we can take to advance racial equity and justice.

Webinar # 1 | Racism: The Ultimate Underlying Condition | June 9, 2-3:30 p.m. EDT

This kick-off webinar will examine racism and its historic and present-day impact on health and well-being. Presenters will:

  • identify the multiple levels on which racism operates;
  • describe the physiological impacts of racism and discrimination on health; and
  • explore the principles for and barriers to achieving health equity.


  • APHA President-Elect José Ramón Fernández-Peña, MD, MPA, Director of Health Professions Advising, Northwestern University


  • APHA Past President Camara Phyllis Jones, MD, MPH, PhD, 2019-2020 Evelyn Green Davis Fellow, Radcliffe Institute for Advanced Study, Harvard University
  • Amani Allen, PhD, MPH, Executive Associate Dean, UC Berkeley School of Public Health


  • Tia Taylor Williams, Director, APHA Center for Public Health Policy and Center for School Health and Education

Coronavirus and the Courts: What Changes Will Stay?

posted by Judge_Burke @ 13:30 PM
June 4, 2020

Tech experts who work with county court systems have implemented a number of digital changes to help justice continue to function in the time of COVID-19, and some of those changes may become permanent.


County court systems have used technology to conduct business during COVID-19 social distancing, and some of those uses are yielding benefits that may lead to long-term changes, officials estimate.

Over the past three months, COVID-19 social distancing has upended the logistical functions of nearly all aspects of American governance, including court systems. It sounds obvious, but so much of the courts functionality happens through in-person interactions, be it outward-facing functions like arraignments or behind-the-scenes work such as meetings between judges and attorneys.

While many courts have been set up for sometime to conduct functions remotely on occasion — particularly in instances of proceedings that involve juveniles or other sensitive participants — the rate at which they have utilized technology in this way is minimal. In other words, when the impact of COVID-19 ground life to a halt in March, the vast majority of American courts did not have practices or in some cases the physical technology to go remote, said Rita Reynolds, chief technology officer for the National Association of Counties

“When COVID hits, all of a sudden we have to use video,” Reynolds said. “We can’t have people coming to the courthouse. Judges themselves may not even be able to get in.” For the full story see the article.


How Should A Judge Sentence Animal Cruelty Cases?

posted by Judge_Burke @ 14:30 PM
June 3, 2020

Years ago there was a Minnesota judge, who when faced with the task of sentencing a defendant charged with cruelty to puppies, went off on a diatribe about how the law allows abortion and yet this guy was in court for killing puppies. Needless to say, it was the wrong thing to say and a firestorm of criticism ensued. There are not many times in a judicial career when animal cruelty cases occur, but if you have one there are resources to guide your thinking. Mirko Bagaric (Swinburne Law School) has posted A Rational Approach to Sentencing Offenders for Animal Cruelty: A Normative and Scientific Analysis Underpinning Proportionate Penalties for Animal Cruelty Offenders (South Carolina Law Review, Vol. 71, No. 4, 2019) on SSRN. Here is the abstract:

Over the past few decades, animal welfare groups and others have exposed the immense cruelty that humans inflict on animals. Despite this, the United States has been slow to criminalize comprehensively and penalize appropriately human cruelty towards animals. This is attributable to the lack of consistent, coherent definitions of animal cruelty, and established, considered jurisprudence regarding the objectives and principles that should inform the sentencing of animal cruelty offenders. As a consequence, there is a lack of uniformity and coherence regarding the sentencing of animal cruelty offenders.

This Article addresses this under-researched area of law and proposes an overarching definition of animal cruelty and a rational sentence framework for the sentencing of offenders who commit acts of animal cruelty. We recommend the development of a classification of animal cruelty offenses that differentiates between animals on the basis of their sentience, and encapsulates the varied nature of such offending. Further, we suggest that, in sentencing animal cruelty offenders, courts should pursue the objectives of community protection and rehabilitation to some degree, but most importantly they should attempt to impose penalties that reflect the principle of proportionality, which provides that the harshness of the sanction should match the seriousness of the offense.

We also argue that both classification and sentencing of animal cruelty offenses should be informed by: (i) scientific evidence of animals’ physiology and psychology (which helps explain the nature of animal cruelty); (ii) social norms regarding human interaction with animals; and (iii) moral theory (which establishes why it is ethically imperative to protect certain animals from human cruelty). The reform proposals advanced in this Article will make this area of the law more consistent and coherent, and often result in the imposition of harsher sentences on animal cruelty offenders


How Are The Self Represented Doing?

posted by Judge_Burke @ 15:33 PM
June 2, 2020

From the Brennan Center

Existing Barriers to the Civil Justice System Worsened by Covid-19


Access to the civil justice system for self-represented litigants has worsened as a result of the Covid-19 pandemic, according to Buzzfeed News.


With courthouses closed or operating on a more limited basis, civil courts are struggling to meet the needs of self-represented litigants. The move to remote operations has also assumed that litigants will be able to navigate cases on their own, or have access to the technology required for virtual proceedings, further exacerbating an already strained civil justice gap.


Unlike the criminal justice system, civil litigants also have no constitutional right to counsel. In addition, the digital divide persists as a major access issue for many Americans, especially those who are lower-income or are people of color, who are less likely to have access to the technologies needed to participate in virtual court.


Some state and local court officials have attempted to respond to these challenges. The Florida Supreme Court, for example, has issued a list of best practices for video proceedings. Legal aid organizations, such as the New York Legal Assistance Group, have also created resources to help self-represented litigants navigate the courts during the pandemic.