What are the Limits of Social Media Searches?

posted by Judge_Burke @ 14:30 PM
September 5, 2017

From Professor Orin Kerr at The George Washington University Law School:

On Monday, the U.S. Court of Appeals for the 11th Circuit suggested that the Fourth Amendment may impose significant limits on the two-step process in the specific context of search warrants for social media accounts. The case is United States v. Blake.

In Blake, two defendants, Dontavious Blake and Tara Jo Moore, were allegedly running a prostitution ring. The government obtained search warrants for Microsoft email accounts Blake and Moore used, as well as for the contents of Moore’s Facebook account. The email warrants required Microsoft to go through the accounts and find emails responsive to the warrant and turn only those over. The Facebook warrants required Facebook to hand over the full contents of the account and to then let the agents search it for the evidence of crime.

In an opinion by Judge Ed Carnes, the 11th Circuit concluded that the Microsoft warrants satisfied the Fourth Amendment but suggested that the Facebook warrants may not. Here’s the court rejecting Moore’s email warrant challenge:

The Microsoft warrant [for Moore’s e-mail account] complied with the particularity requirement. It limited the emails to be turned over to the government, ensuring that only those that had the potential to contain incriminating evidence would be disclosed. Those limitations prevented “a general, exploratory rummaging” through Moore’s email correspondence. The Microsoft warrant was okay.

In a footnote, the court added:

It is somewhat troubling that the Microsoft warrant did not limit the emails sought to emails sent or received within the time period of Moore’s suspected participation in the conspiracy. Nevertheless, the warrant was appropriately limited in scope because it sought only discrete categories of emails that were connected to the alleged crimes. As a result, the lack of a time limitation did not render the warrant unconstitutional.


For the compete commentary by Professor Kerr, go here.



Is Video Taping Interrogations Enough of a Safeguard?

posted by Judge_Burke @ 14:30 PM
September 4, 2017

Wyatt Kozinski (University of Virginia – School of Law, Alumnus or Degree Candidate Author) has posted The Reid Interrogation Technique and False Confessions: A Time for Change (Seattle Journal for Social Justice, Forthcoming) on SSRN.

Here is the abstract:

The Reid Interrogation technique has been the dominant method used by police in the United States and Canada to interview suspects of crime. This method is commercially marketed to police departments and other law enforcement agencies with the promise that 80 percent of those interrogated will confess. However, there is growing evidence that the Reid technique results in a significant number of false confessions, especially among the young, the mentally impaired and those of low intelligence. Other countries, especially England have rejected the Reid technique in favor of other methods that work equally well in obtaining confessions but without the risk of false confessions. In the United States, too, there is growing suspicion of the Reid technique and other hard interrogation tactics such as those employed in interrogating suspected terrorists at Guantanamo and Abu Ghraib.

This paper suggests that widespread use of the Reid technique is a significant contributing factor in public distrust of the police, and fosters police attitudes that feed that dissatisfaction. Rejection of the Reid technique in favor of other methods is likely to improve police efficiency as well as help heal the growing rift between police personnel and the communities they serve. 


ABA Launches a Legal Fact Check Website

posted by Judge_Burke @ 14:30 PM
September 1, 2017

Minnesota Lawyer reports that the ABA:

In what amounts to a kind of PolitFact.com for law, the American Bar Association has launched a website that pushes back against legal misinformation.

The ABA’s Legal Fact Check website launched Aug. 17. On Tuesday, new ABA President Hillarie Bass told Minnesota Lawyer that the site primarily aims to reach the news media and the U.S. citizenry.

“There is so much public discourse out there with statements that do not accurately reflect the law,” Bass said. “This will be a source where members of the media, or members of the public, can go and say, ‘Is that really true?’”

What they will find, she said, are nonpartisan posts clarifying whether news reports or politicians’ statements accurately reflect the law. The initial plan, Bass said, is to post new material once a week. It may sometimes post more frequently in response to high-profile legal misstatements.

“We’re going to be responding to statements we hear that we believe to be inaccurate,” said Bass.

In its first round of posting, the site featured articles on hate speech, presidential pardons, flag burning, affirmative action and perennial calls to break up the U.S. 9th Circuit Court of Appeals.


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 http://theinvisiblegorilla.com/blog/2010/11/16/remarkable-false-memories/

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:  http://bit.ly/KenPopeMentalHealthCourts


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.