Procedural Fairness Blog Expands

Procedural Fairness Blog welcomes new blogger

Earlier this week, Kansas Court of Appeals Judge Steve Leben introduced a new blogger for Procedural Fairness Blog, which is supported by NCSC. Judge Pierre Bergeron, of Ohio’s First District Court of Appeals, will be providing regular updates throughout 2020 on legal proceedings and fairness in the courtroom. The latest blog post also lists useful audio and video Procedural Fairness resources, such as courtroom scenarios, video interviews and audio podcasts about communication on the bench, judicial training and insights. Check out and subscribe to the blog here.

“Financial Hardship and the Excessive Fines Clause: Assessing the Severity of Property Forfeitures After Timbs”

There are a lot of problems with the imposition of fines and fees. Most of the time it is relatively small fines and fees that if you are middle class will have a bite but are doable. But occasionally the fines and fees raise constitutional issues which is the subject of this new paper authored by Beth Colgan and Nicholas McLean now available via SSRN.  Here is its abstract:

In the wake of the Supreme Court’s decision in Timbs v. Indiana—which held that the Fourteenth Amendment incorporates against the states the Eighth Amendment’s ban on the imposition of “excessive fines”—it is likely that state and lower federal courts around the nation will be called upon to further develop Excessive Fines Clause doctrine. The Court’s historical exegesis in its Timbs opinion, as well as aspects of existing Eighth Amendment doctrine, support an analytical framework under which courts would look to the effects of property forfeiture on individuals and their families—in particular, the infliction of financial hardship—when assessing the severity of a forfeiture in the proportionality review context. In this Essay, we sketch the outlines of a forfeitures jurisprudence that would take into account the ways that property deprivations may restrict employment and educational access, interfere with the ability to meet basic needs (including food, shelter, and medical care), create family and social instability, and impede the ability to satisfy legal obligations.

Defender General? An Interesting Idea That Is Not Likely To Happen

Daniel Epps and William Ortman (Washington University in St. Louis – School of Law and Wayne State University School of Law) have posted The Defender General (University of Pennsylvania Law Review, Forthcoming) on SSRN. Here is the abstract:

The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice. But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Most importantly, government lawyers can act strategically to play for bigger long-term victories, while defense lawyers must zealously advocate for the interests of their clients—even when they conflict with the interests of criminal defendants as a whole. The prosecution’s advantages likely distort the law on the margins.

If designed carefully, staffed with the right personnel, and given time to develop institutional credibility, a new Office of the Defender General could level the playing field, making the Court a more effective regulator of criminal justice.

n some cases—where the interests of a particular defendant and those of defendants as a class align—the Defender General would appear as counsel for a defendant. In cases where the defendant’s interests diverge from the collective interests of defendants, the Defender General might urge the Court not to grant certiorari, or it might even argue against the defendant’s position on the merits. In all cases, the Defender General would take the broad view, strategically seeking to move the doctrine in defendant-friendly directions and counteracting the government’s structural advantages.

Lawsuits over adequate court funding have occasionally been referred to as the nuclear option; the threat is great but if used it can be mutually assured destruction or worse. Yet if the nuclear bomb does not work there is no threat anymore. And that appears to be what happened in Kansas.

On January 22, the Kansas Supreme Court dismissed a lawsuit brought by several trial court judges and one employee of the state’s judicial branch against the state legislature over funding for the state’s court system.
According to the Associated Press, “[t]he lawsuit was filed directly with the Supreme Court and alleged state lawmakers have chronically underfinanced the judicial branch. It asked the court to force legislators to consider funding ‘independent of unrelated political agendas.’” “It came after a ruling from the Supreme Court last year protecting abortion rights, years of legal battles over funding for the state’s public schools and multiple rulings forcing lawmakers to boost education funding.”
In its five-page decision dismissing the case, the Kansas Supreme Court said that allowing the lawsuit to proceed “would necessarily impede crucial inter-branch discussions aimed at allowing the Legislature to fulfill its constitutional obligation to fund the judicial branch.” “We are confident at this juncture that the matters Petitioners raise are better handled through inter-branch cooperation,” the court concluded

Detained for Debt

From the Marshall Project, “ Imagine being sentenced to a dollar amount, not a period of time, and working off your debt at a crummy job paying less than the federal minimum wage. Welcome to Mississippi’s “restitution centers,” where people spend their days shuttling between prison and their jobs at fast-food joints and chicken processing factories. Room and board, behind barbed wire, is deducted from their meager salaries. The people in these debtors’ prisons say the worst thing is not knowing exactly how long they must labor before being set free. Our investigation was co-published with Mississippi Today, USA Today, the Jackson Clarion-Ledger and the Mississippi Center for Investigative Reporting, along with several other local newspapers around the state.”


“Normalizing Injustice: The Dangerous Misrepresentations that Define Television’s Scripted Crime Genre”

Professor Douglas Berman’s Sentencing Law & Policy blog noted this interesting new Color of Change report. Here is an excerpt Professor Berman highlighted  from the report’s introduction:

Police procedurals and legal dramas are the bread and butter of primetime lineups, drawing the largest audiences in the U.S., in addition to hundreds of millions of viewers annually around the world.  These series communicate about the criminal justice system as much as any other popular medium, if not more.  Thus, they likely play some role in shaping viewers’ fundamental understanding of right and wrong, the role of race and gender in society, how the justice system works and what we should and shouldn’t expect from both the system and the people in it.

There are many possible consequences of inaccurate and distorted portrayals. For instance, when these series neglect to depict or acknowledge unjust racial disparities in the criminal justice system — as this report demonstrates most of them do — viewers may be more likely to believe that these problems no longer plague the system (or perhaps never have) in real life.

When they depict police, prosecutors, judges and other players in the system as justified and correct in their intentions and actions, and depict the reality of the system as fair and effective, viewers may be more likely to believe the system is working effectively in real life; moreover, they may become skeptical of those who question its fairness.  If series portray white people as victims of crime more often than others, they may affect the level of empathy that viewers feel for the lives of one group of people relative to another.  Such portrayals can influence whom we think of as the face of crime victims, and even what justice for crime victims should look like.

When the beloved police, prosecutors and other criminal justice professional characters on these series break the rules or violate someone’s rights, viewers may see their actions as normal and rightful if there is no depiction of the many harms their rulebreaking behavior causes: short-term and long-term physical harms, financial harms, life trajectory harms, psychological harms, the many different harms of being denied freedom in numerous forms….

The cumulative effects of these and other inaccurate portrayals — whether related to women, people of color or crime and criminal procedure itself — may build an unfounded public faith in the status quo, and even turn the viewing public against urgently needed reforms that criminal justice experts have recommended as necessary, just and effective.



Bottoms up. Prohibition officially began 100 years ago, on Jan. 17, 1920, with a national ban (with a few notable exceptions) on the production and consumption of alcoholic beverages. It was, to be kind, an exercise in dramatic unintended consequences. Meanwhile, Americans are drinking more booze today than they were before the taps were turned off a century ago. ASSOCIATED PRESS.

Is It OK To Cite Secondary Sources Or Look On The Internet?

From Judge Wayne Gorman, “In R. v. Hernandez-Lopez, 2019 BCCA 12, January 14, 2020, the accused, who was employed at a daycare, was charged with the offence of sexual-touching, in relation to AD, a four-year-old child. At the trial, the only evidence dealing with the touching came from AD.  The accused did not testify. Neither the Crown nor the defence presented expert evidence on the assessment of child evidence, nor was any academic literature on that issue referred to by counsel.

In convicting the accused, the judge referred to a law review article (Bala, Judicial Assessment of the Credibility of Child Witnesses (2005) 42 Alta. L. Rev. 995-1017) that made observations with respect to the evidence of children. The accused appealed from conviction. He argued that the article constituted “extraneous expert opinions” that “were not properly admitted or tested at trial”.

The appeal was dismissed.

The British Columbia Court of Appeal noted that “the judge in this case was dealing with a subject very much within his own purview: the assessment of the credibility and reliability of a witness”.  The Court of Appeal held that though it was not suggesting “that a judge is entitled, when assessing the veracity of a witness’s testimony, to rely on expert evidence that is not properly before the court. Not every reference to a publication, however, amounts to reliance on outside expertise. Sometimes, a judge may refer to a publication because it provides a concise and easily understood discussion of a concept, or because it provides an accessible illustration of the judge’s thinking” (at paragraphs 11 and 12).

The Court of Appeal concluded that the trial judge did not commit “any error in his use of the Bala article” (at paragraphs 21 to 25):

I do not read the judge’s reasons as suggesting that he relied on the Bala article as an instruction manual for assessing the evidence of children. Rather, he used the three quoted paragraphs of the article as a convenient summary outlining generally-understood and common features of the evidence of children. The concepts that the judge relied on did not lie outside of the general knowledge that judges are required to apply in assessing the evidence of witnesses.

In short, the judge reached his conclusions as to how he should assess the child’s evidence based on his own experience and knowledge, as well as on his reading of case authorities. His citation of the Bala article simply collected a number of observations in a clear and concise summary, and showed that the observations are generally known and accepted.

The use of published academic literature to show that certain concepts are generally accepted is not uncommon. The Supreme Court of Canada often refers to social science literature for that purpose (see, for example, R. v. Oickle, 2000 SCC 38 at paras. 34–36). A judge must exercise caution in making such use of articles, however, to ensure that trial fairness is not compromised.

Given the very general nature of the observations in the part of the article cited by the trial judge, and the notoriety of the information conveyed, I can see no possibility that trial fairness was compromised. It is safe to conclude that the judge’s reference to the Bala article was only for the purpose of providing a convenient summary of generally-known concepts that he was bringing to bear on the case.

In the result, I am not persuaded that the judge made any error in his use of the Bala article.”

The Annual Report From Chief Justice Roberts

From the Brennan Center Fair Courts Alert

On December 31, 2019, Chief Justice John Roberts released his annual year-end report on the federal judiciary, the focus of which was the importance of civic education. The report also “seemed to continue a conversation with Mr. Trump about the role of the courts,” according to The New York Times.
In the report, Roberts began with a discussion of “America’s greatest civil lesson,” remarking that the authors of the Federalist Papers “ultimately succeeded in convincing the public of the virtues of the principles embodied in the Constitution.” But in the ensuing years,” the chief justice wrote, “we have come to take democracy for granted, and civic education has fallen by the wayside.”
Roberts goes on to say that the judiciary “has an important role to play in civic education,” and describes the ways in which federal judges and court staff have taken up that challenge: posting decisions online so the public can read them, producing curriculum materials for students, hosting live events, creating online resources for the general public, and engaging with their communities as volunteers.
Roberts concluded the report with a message to his judicial colleagues, asking that they “continue their efforts to promote public confidence in the judiciary, both through their rulings and through civic outreach. We should celebrate our strong and independent judiciary, a key source of national unity and stability.”

Sometimes We Do Have To Decide Who We Believe

Judge Wayne Gorman shared this case which you might find of interest.  Sometimes we do need to determine credibility and it isn’t always easy.  When writing orders that discuss credibility findings, I often include this language:

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 not 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.”  Although I have made the necessary credibility finding in this case I did so cognizant of what Judge Hand said.

Here is what Judge Wayne Gorman shared:

In R. v. Heintzelman, 2019 BCCA 480, December 5, 2019, the accused was charged with two counts of sexual assault. He operated a massage business. Two complainants testified that he sexually assaulted them during massages. The evidence of both complainants was entered to prove the two charges and as similar or other act evidence.  One of the complainants (TT) indicted that she had not initially complained to the policy because she had “mental health issues”.

The accused was acquitted at trial.  However, on appeal to the summary conviction appeal court, the acquittals were set aside and a new trial was ordered.  The accused sought leave to appeal to the British Columbia Court of Appeal.

The Trial Judge:

In acquitting the accused of both charges, the trial judge indicated that “[e]ach of the witnesses in this case presented as eminently credible. There was nothing in their demeanour or in the presentation of their evidence which caused me to doubt their veracity or the accuracy of their recollection”.

In relation to the weight to be given to the similar fact evidence, the trial judge indicated that there were “two factors which tend to reduce the corroborative weight to be given to the ‘similar fact evidence’ in this case”.  He described one of these factors in the following manner:

I have very little information to assist me in assessing the impact, if any, of T.T.’s mental illness or her medication on the reliability of her evidence.

The Appeal Court Judge:

In setting aside the acquittals, the appeal court judge held that the trial judge erred in concluding that the weight to be given to the similar fact evidence was reduced because of T.T.’s mental health issues:

…in this case the trial judge reasoned that nothing in T.T.’s demeanour caused him to question either her veracity or the accuracy of her recollection. He reasoned that there was nothing inherently implausible about her evidence. He also said at para. 4 of his reasons that there was no evidence, whether from T.T.’s treating doctor or other sources, upon which he could assess “the impact, if any, of her psychiatric condition or medication on the reliability of her evidence”.

In my view, these findings demonstrate that there was no evidence from which to conclude that T.T.’s reliability was affected by her mental health diagnosis or medication. Without any evidence of a connection between T.T.’s psychiatric history and her reliability, the judge’s decision to reduce the corroborative weight given to her testimony must have been based on the implicit assumption that the mere fact of T.T.’s psychiatric history impacted her reliability.

In light of all of that, the trial judge’s conclusion that the corroborative weight to be given similar fact evidence tended to be reduced because of the effect of some lingering doubt arising from the psychiatric condition and/or the medications, for which there was no evidence, in my view was an error of law.

The British Columbia Court of Appeal:

The British Columbia Court of Appeal, per Dickson JA, denied leave to appeal, concluding as follows (at paragraph 23):

Contrary to Mr. Heintzelman’s submission, the trial judge did not accept his evidence. Although he commented favourably on Mr. Heintzelman’s demeanour at para. 12 of his reasons, at para. 18 the trial judge made it abundantly clear that he was unable to decide whom to believe. On that basis, he felt himself obliged to acquit. However, as the summary appeal judge correctly recognized, the trial judge erred in reducing the weight to be accorded to the similar fact evidence based on T.T.’s mental health.