Forensic Science

posted by Judge_Burke @ 15:30 PM
December 21, 2017

The television show “CSI,” each week has forensic evidence portrayed as glitzy, high-tech — and virtually infallible. Unfortunately, this depiction is often a far cry from reality. A significant report issued by the President’s Council of Advisors on Science and Technology (PCAST) persuasively explains that expert evidence based on a number of forensic methods — such as bite mark analysis, firearms identification, footwear analysis and microscopic hair comparisons — lacks adequate scientific validation. Quite simply, these techniques have not yet been proved to be reliable forms of legal proof.  There are several kinds of problems with forensic science in criminal cases, including:

  • Unreliable or invalid forensic discipline. Studies have demonstrated that some forensic methods used in criminal investigations cannot consistently produce accurate results. Bite mark comparison in which an identification of a biter is made from a bite mark made on skin is an example of an analysis that is unreliable and inaccurate.
  • Insufficient validation of a method. Some of the forensic disciplines in use may be capable of consistently producing accurate results, but there has not been sufficient research to establish validity. Accuracy of a method should be established using large, well-designed studies. Without these studies, the results of an analysis cannot be interpreted.  Analysis of shoeprints as a basis of identifying the unique source of a print is an example of a method that has not been sufficiently validated.
  • Misleading testimony.
    • Sometimes forensic testimony overstates or exaggerates the significance of similarities between evidence from a crime scene and evidence from an individual (a “suspect” or “person of interest”), or oversimplifies the data. Examples include testimony that suggests a collection of features is unique or overstates how rare or unusual it would be to see these features, implying that it is quite likely that the suspect is the source of the evidence, and testimony that doesn’t convey all possible conclusions, as can arise with masking in serology testing.
    • Sometimes forensic testimony understates, downplays, or omits the significance of an analysis that establishes that an individual should be excluded as a possible suspect. An example is testimony that an analysis is “inconclusive” when in fact, the analysis excluded the suspect.
    • Sometimes forensic testimony fails to include information on the limitations of the methods used in the analysis, such as the method’s error rates and situations in which the method has, and has not, been shown to be valid.
  • Mistakes. Like everyone, forensic practitioners can make mistakes, including mixing up samples or contaminating specimens. These can occur in any type of science or laboratory testing, even in well-developed and well-validated fields.
  • Misconduct. In some cases, forensic analysts have fabricated results, hidden exculpatory evidence, or reported results when testing had not been conducted. So where does a judge start? We surely do not need to become judicial forensic science troglodytes.  Professor  David H. Kaye (Pennsylvania State University, Penn State Law) has posted How Daubert and Its Progeny Have Failed Criminalistics Evidence and a Few Things the Judiciary Could Do About It (Fordham Law Review, Vol. 86, No. 4, 2018, Forthcoming) on SSRN. Here is the abstract:

A recent report of the President’s Council of Advisors on Science and Technology questioned the validity of several types of criminalistics identification evidence and recommended “a best practices manual and an Advisory Committee note, providing guidance to Federal judges concerning the admissibility under Rule 702 of expert testimony based on forensic feature-comparison methods.”

This article supplies information on why and how judicial bodies concerned with possible rules changes—and courts applying the current rules—can improve their regulation of criminalistics identification evidence. First, it describes how courts have failed to faithfully apply Daubert v. Merrell Dow Pharmaceutical’s criteria for scientific validity to this type of evidence. It shows how ambiguities and flaws in the terminology adopted in Daubert have been exploited to shield some test methods from critical judicial analysis.

Second, it notes how part of the Supreme Court’s opinion in Kumho Tire Co. v. Carmichael has enabled courts to lower the bar for what is presented as scientific evidence by maintaining that there is no difference between that evidence and other expert testimony (that need not be scientifically validated). It suggests that if the theory of admissibility is that the evidence is nonscientific expert knowledge, then only a “de-scientized” version of evidence should be admitted.

Third, it sketches various meanings of the terms “reliability” and “validity” in science and statistics on the one hand, and in the rules and opinions on the admissibility of expert evidence, on the other.

Finally, it articulates two distinct approaches to informing judges or jurors of the import of similarities in features—the traditional one in which examiners opine on the truth and falsity of source hypotheses—and a more finely grained one in which criminalists report only on the strength of the evidence. It contends that courts should encourage the latter, likelihood based testimony when it has a satisfactory, empirically established basis.

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Fines & Fees that Undermine Fairness in the Justice System

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

After the debacle of Ferguson, Missouri, there was a lot of attention given to the reform of fines and fees. A Commission was established, lead by the Chief Justice of Ohio. The National Association of Court Managers, the Conference of Chief Justices, and the American Judges Association–among a lot of other national organizations–expressed a desire to reform what is happening to our courts.

Out of control fines and fees arguably are partially or wholly our fault. Court leaders complained when enough “credit” was given in return for the amount of revenue courts generated. This was particularly true of limited jurisdiction courts. Surcharges started to be added. In one state, a surcharge was added to fund building a new state law school, but the appetite for funding the courts was a bit limitless. When judges rebelled, legislators responded. In Minnesota there was even a bill which provided that if the judge did not impose the fee, the clerk had the authority to do so over the judge’s objection. (A proposition of dubious constitutionality.)

And so we move to North Carolina:

A new North Carolina law [recently took] effect that is designed to hamstring the ability of judges to waive fines and fees for poor people.

Critics say the law will mean jail time for more poor people who can’t pay court costs that start at $179 for a seat belt violation and can easily surpass $1,000.

The law is believed to be the first of its kind in the country. It runs counter to reform efforts in other states that are attempting to reduce the number of people jailed because they are unable to pay fines or fees or make bail.

The new law is unusual in other ways: no lawmaker will take credit as sponsor, and no formal input was solicited from the entity most affected, the state court system.

The measure seems crafted by the Republican-controlled General Assembly to maneuver around a 1983 U.S. Supreme Court decision, Bearden v. Georgia, in which the court held that people cannot be jailed simply because they are too poor to pay fines and fees. Judges can waive costs if the failure to pay is not willful.

North Carolina’s new law would not explicitly prohibit waivers for the poor, but would throw up a serious impediment, requiring judges to give 15 days notice to all affected agencies before issuing a waiver.

In North Carolina, that would be a lot of notices. An offender in the state is subject to a vast array of fees, from $5 for being arrested to $200 for failing to appear. The state charges a fee of $7.50 to underwrite the police and sheriff retirement funds and a fee of up to $40 a day for taking up space in jail. Perhaps inevitably, there is a $50 fee for failing to pay a fee.

In all, 52 fees are routed to four state agencies and 611 counties and municipalities.

 

For the full Marshall Project article on the North Carolina law, go here.

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Is it Okay to Occasionally Get Intemperate?

posted by Judge_Burke @ 15:30 PM
December 19, 2017

If you are a trial judge, among your required readings should be Angry Judges by Professor Terry Maroney. None of us were anointed as a saint before we took our position on the bench. So, understanding our own emotions and having the skill do deal with other people’s emotion is critical for trial judges. If you are not careful, you can escalate a manageable situation into something that becomes embarrassing.

A former judge who jumped from the bench, ripped off his robe, and bit a defendant on the nose was acquitted in Clarksburg of violating the man’s civil rights. Joseph Troisi, who was a circuit court judge for four years, was accused of confronting Bill Witten after Witten repeatedly cursed at him while being led from the courtroom. Troisi could have been sentenced to up to 10 years in prison on the federal charge. He has already pleaded no contest to state charges and served five days in jail for assaulting Witten. Troisi said he was caught up in “waves of feeling” and not thinking when he exchanged words with Witten.

With that background, here is a case from Judge Wayne Gorman:

In R. v. Church, 2017 ABCA 421, December 15, 2017, the following exchange took place between the trial judge and counsel (Mr. Brunnen):

THE COURT: Why– I mean I have to tell you both. It’s becoming increasingly clear to me that neither one of you are particularly well prepared for this trial. Just -

MR. BRUNNEN: With respect –

THE COURT: Mister–

MR. BRUNNEN: –that is incorrect.

THE COURT: –Mr. Brunnen? I am speaking.

MR. BRUNNEN: With respect –

THE COURT: Mr. Brunnen?

MR. BRUNNEN: — you are wrong.

THE COURT: Mr. Brunnen? Do I need to call the sheriff?

MR. BRUNNEN: You may if you wish.

THE COURT: Mr. Brunnen?

MR. BRUNNEN: I am very well prepared.

THE COURT: Mr. Brunnen? We’re going to have an adjournment, so you can calm down. You will not speak to me like that again.

MR. BRUNNEN: With respect –

THE COURT: Mr. Brunnen?

MR. BRUNNEN: –I am very well prepared.

THE COURT: Mr. Brunnen? That’s enough.

The accused was convicted.  He appealed arguing that the judge’s threat to call the  Sheriff undermine the fairness of the trial.  The appeal was dismissed.

The Alberta Court of Appeal noted that “tensions can run high during trials” and that “trial judges can be under considerable pressure during a trial.” However, though “judges must strive always to remain patient” a “temporary lapse does not necessarily undermine the overall appearance of trial fairness in the eye of the reasonable objective observer” (at paragraph 29).

The Court of Appeal concluded that the exchange did not “undermine the appearance of fairness” (at paragraph 31):

Whether the conduct of the trial results in a miscarriage of justice depends on many factors, and not every criticism of counsel by a trial judge raises a reasonable apprehension of bias: Nazarewycz v Dool, 2009 ABCA 70 (CanLII) at paras. 67-75, 2 Alta LR (5th) 36, 448 AR 1; R. v Schmaltz, 2015 ABCA 4 (CanLII) at paras. 52-3, 12 Alta LR (6th) 328, 599 AR 76. This trial was not before a jury, and did not involve a self-represented litigant. Fortunately, senior counsel was involved, and he was not intimidated by the trial judge’s words: Lakhoo at para. 6. When court resumed after the adjournment, all involved were (commendably) able to get the trial back on track and focused on the issues at hand. This unfortunate incident (probably consuming less than five minutes) in the middle of a three day trial does not undermine the appearance of fairness.

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The Miranda Warning (Kid’s Version)

posted by Judge_Burke @ 16:19 PM
December 18, 2017

From Governing Magazine:

Anyone who’s watched a cop show on television in recent decades has a decent understanding — or at least a memory — of the rights accorded to those arrested: the right to an attorney, the right to remain silent and all the other protections given to the accused over the past half-century, following the U.S. Supreme Court’s 1966 decision in Miranda v. Arizona.

But juvenile offenders often don’t have a clear understanding of what those rights entail. Back in 2013, the American Academy of Child and Adolescent Psychiatry concluded that Miranda warnings are “too complex and advanced” for most juveniles. The group recommended that “police and other law enforcement authorities should utilize simplified Miranda warnings developed specifically for use with juvenile suspects.”

Now, the sheriff’s office in King County, Wash., has done just that. Working collaboratively with the public defender’s office and a community nonprofit, the sheriff consulted with brain researchers to come up with simplified warnings, which were then focus-grouped among teens. “For the most part, we have always done the same warning for kids that we do for adults,” says Sheriff John Urquhart. “We came to the conclusion, as we know now, that kids’ brains develop slower. To be fair, we thought we should revise the warning so that they understand what their constitutional rights are.”

Juvenile offenders in King County are now told repeatedly, and in different phrases, that they have a right to an attorney, underscoring that the attorney’s services are available free of charge. They not only are told that they can remain silent, but are offered an explanation that this means “you don’t have to say anything. It’s OK if you don’t want to talk to me.”

Urquhart says he’s getting the same kind of pushback that law enforcement has gotten ever since the advent of Miranda warnings — namely, that no kid will ever confess with those kinds of protections. The new warnings are just being rolled out, but so far there’s no evidence that they’re hindering cases. The Seattle Police Department — the only force in the state larger than the King County Sheriff’s Office — is now considering adopting them as well.

Laurence Steinberg, an expert on adolescent psychiatry at Temple University, describes the warnings as a “valuable change in policy.” Nevertheless, he argues that even if kids have a better grasp of their rights, they generally lack the judgment or foresight to think through the implications of the decisions they make, including whether to stay silent. Like the American Academy of Child and Adolescent Psychiatry, he recommends that an adult who cares about the child’s welfare, such as an attorney or a relative, should be present during interrogations. That’s already standard practice in many departments.

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The Amazing Chief Justice Beverley McLachlin

posted by Judge_Burke @ 16:58 PM
December 13, 2017

Canada is about to lose one of the finest jurists in North America:  Chief Justice Beverley McLachlin is retiring. She made a difference in her country, but for those who have had the privilege to meet her, her influence transcended.

I first met her when invited to speak in Canada about the relationship between courts and the media. Canadian judges are traditionally quite reserved about talking to the media. There are of course good reasons to limit what a judge is willing to comment to the media about, but appropriate comment to the media promotes public understanding of our branch of government. Chief Justice McLachlin understands that.

Great court leaders have to have the courage to occasionally take on the rest of government when the independence of the judiciary is under attack. There are court leaders who are far too hesitant to speak up. Chief Justice MaLachlin with dignity had the courage to speak up when a champion for the judiciary was needed:

Supreme Court of Canada Chief Justice Beverley McLachlin fought back tears Thursday as she said goodbye after serving nearly three decades on the country’s highest court.

“Whatever lies ahead, I know that my time here will always be the centrepiece of my life,” she said.

​McLachlin, 73, announced her retirement in June, but Thursday’s hearing about the cross-border beer case of a New Brunswick man was her final day on the bench.

She received a standing ovation.

“It’s been intellectually stimulating, it’s been hugely challenging, and there’s not been a day when I haven’t thought, ‘I am the luckiest of people,’” she said.

“It has been, as they say vernacularly, a terrific ride.

McLachlin was sworn in as a justice of the Supreme Court of Canada in 1989 and became the first woman to hold the top post when she was appointed in 2000.

She said she was grateful for her “good fortune” of serving during a period when Canadian law has “grown so greatly.”

“Don’t get your hopes up respondents, that’s a general statement,” she quipped to Gerard Comeau’s lawyers, prompting laughter in the packed Ottawa courtroom.

Comeau’s lawyers are urging the court to strike down interprovincial trade barriers that led to his being nabbed by police for bringing 14 cases of cheap beer and other alcohol home from Quebec, which could have far-reaching implications.

The court has reserved decision to an undetermined date. McLachlin officially retires on Dec. 15, but will continue to weigh in on cases she has heard until next summer. A successor has not yet been named.

 

For the full story, go here.

 

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Fairness in Fines and Fees

posted by Judge_Burke @ 18:38 PM
December 12, 2017

A long time ago there were discussions about “day fines.” The idea never really caught on in the United States, but the idea is pretty simple. Fines and fees ought to be scaled to take into account the ability to pay. Surely Bill Gates can afford a fine greater than someone on welfare.

There are judges who agree, but there are others who say either it is too difficult to ascertain the ability to pay on crowded calendars, or who just think it is fair to say “if you did the crime” the penalty is the same.

Professor Beth Colgan has authored this new and timely article on the issue, available via SSRN.

Here is the abstract:

There is growing recognition that economic sanctions — fines, surcharges, fees, and restitution — are routinely imposed at rates many people have no meaningful ability to pay, which can exacerbate financial instability and lead to the perception that economic sanctions are unfairly punitive to people of limited means.  Concerns triggered primarily by highly punitive tactics, including incarceration and long-term probation of low-income debtors for the failure to pay, have led to increasing calls for reform.  While much attention is now being paid to the back-end of the system, and particularly limitations on punitive responses for the failure to pay due to poverty, this Article considers the problem from the front-end.  In particular, this Article focuses on a potential reform with increasing bipartisan support: the graduation of economic sanctions according to a person’s financial circumstances.

To that end, this Article explores several key considerations essential to designing a system of graduation, relying heavily on a largely-forgotten experiment in seven geographically, demographically, and politically diverse jurisdictions in the United States with the “day-fine.”  A day-fine is calculated using a penalty unit assigned based on the seriousness of the offense of conviction.  The penalty unit is then multiplied by the defendant’s adjusted daily income to determine the day-fine amount.  The result is an economic sanction adjusted to offense seriousness and simultaneously graduated to the defendant’s financial condition.  This Article mines the historical record of the American day-fines experiments — complemented by recent interviews with people involved in the design and implementation of the projects and experiences with means-adjustment in the consumer bankruptcy, tax, and public benefits contexts — for lessons on the design of graduating economic sanctions.  What emerges from this review is promising evidence that a properly designed and implemented system for graduation is consistent with efficient court administration, revenue generation, and equality in sentencing. 

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New York Courts Think Outside The Box

posted by Judge_Burke @ 14:30 PM
December 7, 2017

How to deal with low level offenders is perplexing. Jailing them is expensive and likely has minimal long term effectiveness. Fines and fees have gotten out of hand. Governing Magazine has an interesting story about thinking outside of the box in the New York courts:

Like many other cities, New York wants to reduce its jail population and repeated lock-ups of low-level offenders. The city’s latest attempt to address that goal centers around a bold idea that could be modeled nationwide: Do away with all jail sentences of less than a month.

That’s the idea behind newSTART, a jail diversion program launched in New York last month. It keeps defendants who have committed low-level misdemeanors — things like petty larceny or possession of small amounts of illegal drugs — from entering jail. It would also apply to people convicted of thefts of service, such as jumping a subway turnstile or exiting a taxi without paying.

Instead, in exchange for a guilty plea, misdemeanor defendants can opt for one or more social service programs, including drug treatment, job training and mental health counseling.

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“We are hopeful that the program will stop the return to jail and [create] a virtuous circle,” says Elizabeth Glazer, director of the Mayor’s Office of Criminal Justice.

Right now, the program is limited to defendants who have been sentenced to up to 10 days in jail. If it’s successful, it will be expanded to those convicted of crimes carrying sentences up to 30 days.

But not all defendants who fit that time frame will be eligible.

The program specifically targets defendants in need of social services and those who have been repeatedly arrested for similar crimes. Almost three-quarters of those facing short-term sentences are unemployed, and more than 40 percent are homeless, according to the Mayor’s Office of Criminal Justice.

NewSTART is seen as an improvement from previous jail diversion programs. In the past, defendants who opted for jail diversion ran the risk of serving more time than their initial sentence if they failed to complete the diversion program. For example, a person could escape a five-day jail sentence by opting for a diversion program — but then end up sentenced to 30 days in jail if they failed to complete that diversion program.

That undermined the point of the diversion program, says Jennifer Scaife, executive director of Prevention, Diversion, & Reintegration for the Mayor’s Office of Criminal Justice. “People were opting for jail instead of services, which didn’t stop the cycle of going to jail repeatedly.”

Under the new plan, the city will recommend that those who fail to complete the program be sentenced to no longer than 15 days in jail. Final discretion for sentencing, however, remains with judges.

Proponents of sentencing reform have pointed to the economic and social disruptions that even a short stay in jail can impose on poor and at-risk populations.

“Since the individuals who qualify for this programming are not major threats to public safety, it is far more productive to engage them in constructive programming than to impose punishment,” says Marc Mauer, executive director of The Sentencing Project, a group that advocates for corrections reform. “Certainly, not everyone who goes through the program will succeed. But even a modest success rate will often be more beneficial than warehousing [inmates] in jail for a week.”

At its core, the program is designed to rely on the expertise of job counselors, drug treatment specialists and mental health providers to break the cycle of incarceration, says Glazer from the city’s criminal justice office.

“All these providers know how to change the behavior of the people they serve so they don’t go back to jail. They use strategies that teach people to make better decisions,” she says. “It’s not the same old, same old.”

Executing the plan has also required buy-in from both prosecutors and judges — complicated somewhat by the fact that New York actually has five separate borough court systems, each with its own judges and district attorneys. So far, the effort is in place in Manhattan, Brooklyn and the Bronx.

“NewSTART is a promising way to hold offenders accountable in a constructive and humane fashion which may also help decrease recidivism,” says acting Brooklyn District Attorney Eric Gonzalez.

The plan is part of the city’s broader effort to reduce its jail population, which has already been cut in half over the last 20 years when you include people awaiting court dates, according to the mayor’s office.

In 2016, Mayor Bill de Blasio committed $17.8 million to roll out a citywide bail alternative program. Building on pilot programs started in Queens and Manhattan during former Mayor Michael Bloomberg’s administration, the program allows low-level offenders to remain at home under court supervision while they await trial.  De Blasio also committed $89 million to address what had been a rise in the number of mentally ill inmates in city jails. The city is also on pace to close its notorious Rikers Island facility in the next 10 years. That jail has been plagued by gang violence, inmate abuse by guards and a 2015 incident in which inmates fell ill after consuming meatloaf containing rat poison.

Thanks to New York’s sheer size and prominence, other cities will undoubtedly be watching as it tests this new approach.

“There are efforts around the country to reduce jail time,” says Adam Mansky, director of operations at the Center for Court Innovation, which has partnered with New York to connect defendants with social workers. “New York has shown leadership in this area with supporting expanded use of alternatives to jail.”

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How Good are Judges at Assessing Remorse?

posted by Judge_Burke @ 18:22 PM
December 6, 2017

Determining credibility is among the most difficult tasks a trial judge has. Judges make factual findings. But, 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 not do 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.” So if determining who is telling the truth is problematic, what about determining the sincerity of remorse? 

There is a new paper, written by Professor Eve Hanan, that addresses this issue and is now available via SSRN. 

Here is the abstract:

Whether a defendant expresses remorse at criminal sentencing often has a direct bearing on the severity of the sentence.  But how good are judges at accurately assessing genuine, meaningful remorse?  Research demonstrates that judges hold contradictory and unfounded views about how sincere remorse should be expressed and, as a result, are likely to misjudge remorse.  Legal and social science scholars have grappled with the challenge of accurately assessing remorse, but no one has analyzed whether implicit racial bias skews remorse assessments at criminal sentencing in predictable and systematically discriminatory ways.

In an effort to unmask this mode of discrimination, this Article synthesizes two areas of scholarship not previously compared — (1) scholarship on the role of remorse in criminal sentencing and (2) social science research on implicit racial bias — to argue that unconscious cognitive assumptions about race and criminality causes judges to discredit African American displays of remorse and, as a consequence, sentence them to harsher punishments.  At a time when racial disparity and implicit bias dominates national discussions of criminal sentencing reform, improving our understanding of where our criminal justice system is particularly susceptible to racial bias can help reformers mend these weaknesses in our system to ensure it works equally for everyone.

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In Tone and Criminal Justice

posted by Judge_Burke @ 15:35 PM
November 30, 2017

Federal District Court Judge Mark Bennett has been one of the nation’s judicial leaders in confronting the issue of implicit bias. He is one of the contributing authors of the ABA publication Enhancing Justice: Reducing Bias (as are Judge Steve Leben & I).

Judge Bennett and Victoria Plaut have a new paper that is well worth reading now on SSRN.

Here is the abstract:

Social psychologists have established that faces of Black males trigger thoughts of violence, crime, and dangerousness and thoughts of crime trigger thoughts and images of Black males. This presumption of dangerousness increases with darker skin tones (colorism) and greater Afrocentric facial features and affects both men and women.

We examine the history of the stereotype of Blacks and crime, violence, and dangerousness arising in the United States from the time of slavery. We focus on the historical development of this stereotype through a lens of history, literature, pseudo-science, emerging neuroscience, media distortion of crime reporting, and the development of the Negro-ape metaphor. We then look beyond the Black-White race dichotomy to explore the evolving social science literature examining the influence of skin tone and Afrocentric facial features on the length of criminal sentences. We further explore the social science supporting the presumption of dangerousness and conclude with recommendations to help ameliorate this problem that permeates the American criminal justice system.

 

 

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Procedural Fairness from the Center for Court Innovation

posted by Judge_Burke @ 15:00 PM
November 14, 2017

From the Center for Court Innovation:

In a new TED Talk, Judge Victoria Pratt draws on her experience with Newark Community Solutions to explain the real-life impact of procedural justice.

“It’s a concept that says if people perceive that they are treated fairly and with dignity and respect, they’ll obey the law,” says Pratt.

The experience of Newark Community Solutions suggests that by addressing people respectfully, using plain language to ensure understanding, allowing defendants to voice their concerns, and emphasizing neutrality, justice agencies can help restore public trust in justice.

To learn more about procedural justice, watch our video or read our new book, and to learn how we have promoted this and other evidence-based strategies, follow us on Twitter or Facebook or subscribe to our newsletter.

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