A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
The first part of this “present sense impression” exception is easy enough. If I tell my friend, “My stomach hurts” while my stomach hurts, my statement is a present sense impression because I am describing/explaining a condition while I am perceiving it. Similarly, if I say to my friend, “Hey, that’s Nancy” while I see Nancy crossing the street, my statement is a present sense impression because I am describing/explaining an event while I am perceiving it. But what if I told my friend, “My stomach hurt x minutes ago” or “I saw Nancy crossing the street x minutes ago.” How many minutes can pass before my statement is no longer made immediately after I perceived the event or condition?
Previously, I’ve noted that I’ve seen courts admit present sense impressions made up to 23 minutes after perceiving an event or condition. See United States v. Blakey, 607 F.2d 779 (7th Cir.1979). This would be consistent with the recent opinion of the Supreme Court of Idaho in Cazier Revocable Trust v. Cazier, 2020 WL 3989094 (Idaho 2020). In Cazier, a party sought to introduce a February 21, 2019 affidavit about phone calls that occurred on September 18, 2018 and October 11, 2018.
The Supreme Court of Idaho held that the affidavit clearly was not a present sense impression because
time lapses as “slight” as forty-five minutes have been considered too long to invoke the protection of I.R.E. 803(1). See State v. Woodbury, 127 Idaho 757, 762, 905 P.2d 1066, 1071 (Ct. App. 1995) (Walters, J., concurring) (citing U.S. v. Cruz, 765 F.2d 1020, 1024 (11th Cir. 1985)) (“Testimony in this case indicated that Hansen’s statement to Officer Knight was made about forty-five minutes after the attack. This time span does not qualify as ‘immediately’ after the event.”).
So you have a sentencing. The defendant has a misdemeanor record. What weight if any should you give that information? J.D. King (Washington and Lee University – School of Law) has posted The Meaning of a Misdemeanor in a Post-Ferguson World: Evaluating the Reliability of Prior Conviction Evidence (54 Ga. L. Rev. 927 (2020)) on SSRN. Here is the abstract: Despite evidence that America’s low-level courts are overburdened, unreliable, and structurally biased, sentencing judges continue to uncritically consider a defendant’s criminal history in fashioning an appropriate punishment. Misdemeanor courts lack many of the procedural safeguards that are thought to ensure accuracy and reliability. As with other stages of the criminal justice system, people of color and poor people are disproportionately burdened with the inaccuracies of the misdemeanor system.
This Article examines instances in which sentencing courts have looked behind the mere fact of a prior conviction and assessed whether that prior conviction offered any meaningful insight for the subsequent sentence.This Article then proposes a framework by which defendants should be allowed to challenge the use of prior conviction evidence in the sentencing context, arguing that the government should bear the burden of persuasion once the defendant sufficiently satisfies a burden of production. Ultimately, however, this Article suggests that courts and legislatures consider categorical exemptions from the use of prior misdemeanor convictions in imposing sentences. Failure to critically examine this evidence risks introducing and compounding the biases and errors of low-level courts into more serious sentencing proceedings.
The Justice Programs Office, a center in the School of Public Affairs, and the Right to Counsel National Campaign announced the release of a new report that highlights how criminal justice reforms can and should incorporate the voices of public defenders, seeking to elevate the criminal justice reform conversation. Working together, criminal justice stakeholders can effectuate change and implement sustainable reforms. This document identifies pressure points in the justice system where we can make real change regarding the state of public defense systems and create a strategic plan for engagement, building on the Right to Counsel National Campaign’s existing theory of change. While investment in direct public defense reforms is critically important, investing in and involving public defense providers in systemic reform efforts, such as the ones detailed in this report, are essential for comprehensive, sustainable system change. We then hope to show how defense, instead of being an obstacle to reform or a separate component of the criminal justice system, can be a solution for many criminal justice challenges. To read the report, click here. To learn more about the Right to Counsel National Campaign, check out the website here and their social media channel here.For more information, please contact Project Director Genevieve Citrin Ray atcitrin@american.edu.
Recidivism is perplexing. There are high rates of failure of inmates who leave prison. Every judge who places individuals on probation hopes that there will be a success. Yet we know that some percentage of people will reoffend. What are the factors that increase the likelihood of recidivism? There is a new article posted to SSRN and authored by Leah Jacobs and Jennifer Skeem that discusses the role neighborhood plays. Here is its abstract:Justice-involved people vary substantially in their risk of re-offending. To date, recidivism prediction and prevention efforts have largely focused on individual-level factors like antisocial traits. Although a growing body of research has examined the role of residential contexts in predicting re-offending, results have been equivocal. One reason for mixed results may be that an individual’s susceptibility to contextual influence depends upon his or her accumulated risk of re-offending.Based on a sample of 2,218 people on probation in San Francisco, California, this study draws on observational and secondary data to test the hypothesis that individual risk moderates the effect of neighborhood factors on recidivism. Results from survival analyses indicate that individual risk interacts with neighborhood concentrated disadvantage and disorder — these factors increase recidivism among people relatively low in individual risk, but not those at higher risk. This is consistent with the disadvantage saturation perspective, raising the possibility that some people classified as low risk might not recidivate but for placement in disadvantaged and disorderly neighborhoods. Ultimately, residential contexts “matter” for lower risk people and may be useful to consider in efforts to prevent recidivism.
Remote Justice is the title of this article authored by Jenia Iontcheva Turner now available via SSRN. Here is its abstract:
The coronavirus pandemic has forced courts to innovate to provide criminal justice while protecting public health. Many have turned to online platforms in order to conduct criminal proceedings without undue delay. The convenience of remote proceedings has led some to advocate for their expanded use after the pandemic is over. To assess the promise and peril of online criminal justice, I surveyed state and federal judges, prosecutors, and defense attorneys across Texas, where virtual proceedings have been employed for a range of criminal proceedings, starting in March 2020. The survey responses were supplemented with direct observations of remote plea hearings and the first criminal jury trial conducted via Zoom.
The survey responses paint a complicated picture. They suggest that, on the whole, online proceedings can save time and resources for the participants in criminal cases and can provide broader access to the courts for the public. Yet respondents also noted the dangers of remote justice, particularly in contested or evidentiary hearings and trials. These include the inability of the parties to present evidence and confront witnesses effectively, and the challenges of providing adequate legal assistance remotely. Respondents also expressed concern that the court’s perception of defendants may be negatively skewed by technology and that indigent defendants might be disproportionately harmed by the use of remote hearings. Defense attorneys were especially likely to be concerned about the use of the online format and to believe that it tends to harm their clients. Federal judges and prosecutors were also more likely than their state counterparts to be skeptical of the benefits of online criminal proceedings outside the context of the pandemic.
Based on the survey responses, an analysis of scholarship and case law, and first-hand observations of virtual criminal proceedings, the Article concludes with several recommendations about the future use of online criminal justice. It argues that states should be wary of expanding the use of remote proceedings after the pandemic is over. Online technology could be used more broadly to conduct status hearings and hearings on questions of law and to increase the frequency of attorney-client consultations. Beyond these narrow circumstances, however, remote hearings post-pandemic should be used only sparingly, as they carry too many risks to the fairness of the proceedings. If jurisdictions make the choice to use virtual proceedings in circumstances beyond status hearings and legal arguments, this should be done only after obtaining an informed and voluntary consent from the defendant, and with great care taken to reduce the risks of unfairness and unreliable results.
Here is the abstract: Eyewitness evidence, used in tens of thousands of criminal cases each year, crucially depends on eyewitness memory, which is quite fallible. The potential inaccuracy of eyewitness memory has been long demonstrated by examples of mis-identifications, including in cases of wrongful conviction. Eyewitness identification procedures, which are themselves experiments, lend themselves to scientific research as do few others in law. Today, decades of scientific research on visual perception and memory have identified key causes of error and methods for improving eyewitness performance. As a result, eyewitness evidence has become a testing ground for the use of science to inform the law. This Article examines how legal actors — state and federal courts, state lawmakers, and police agencies — have responded to this body of research. While U.S. Supreme Court rulings set a constitutional floor, we find that it largely does not inform eyewitness evidence law. State courts have increasingly incorporated eyewitness memory science, as we describe in a detailed fifty-state survey of rulings. Second, we explore how state lawmakers have done still more, in an analysis of twenty-four state statutes that regulate eyewitness identification procedure. Third, policing agencies have most eagerly embraced revised identification practices to take account of scientific research. We describe a sea change in police practice, including through model policy adopted in twenty-nine states. Based on these findings, we call into question top-down, stare-decisis-bound, and federal court-centric accounts that dominate constitutional criminal procedure. Further, we describe how research continues to progress; a new generation of research promises to further improve accuracy of eyewitness procedures. While constitutional criminal procedure is unlikely to change in the near future, we expect that local actors will harness research developments. We conclude by asking why, in the eyewitness area, criminal investigation and procedure have been so receptive to research. We suggest that rather than adopting a legal precedent-based system, police practices and statutes employ a scientific framework that can incorporate new discoveries. This account of dissemination and adoption of research points towards a dynamic framework for the use of science in the legal system.
Annie Vartanian (University of Pennsylvania – Department of Criminology) has posted Racial Disparities In Stop and Frisk Distributions by the Philadelphia Police Department on SSRN. Here is the abstract: The rates of police stops of Black and White pedestrians vary greatly in Philadelphia, Pennsylvania. Using a propensity score design, this study matches the rates of stops using stop data characteristics from the Philadelphia Police Department to further analyze racial disparities in police stops. Re-weighting allows to better analyze stop distributions by assessing the difference of frisk rates between Blacks and Whites. The purpose of comparing the stops in similar situations is that if the location of the stop is controlled for, along with the gender, year, and time of day of the stop occurrence, the explainatory variable left to be a plausible reason in stop rate differences between the groups is race. Black pedestrians in Philadelphia are disproportionally frisked more than White pedestrians, 15% vs. 10%. However, Philadelphia police are more likely to recover contraband from frisked Black pedestrians.
Justice Ruth Bader Ginsburg’s life embodies the best of America. Her experiences of being a first-generation American, a religious minority, and a woman who overcame discrimination informed her jurisprudence.
The grandchild of Jewish immigrants from Russia, Ginsburg understood how fear of violent pogroms caused her family to leave their home, along with hundreds of thousands of Jews who immigrated to the United States in the early 20th century. She also appreciated the hope for a better life America offers its constant stream of newcomers.
Despite the discrimination she faced, America was a stark contrast with Russia where her grandfather was prohibited from attending school and working in certain occupations because he was Jewish.
Our celebration of the legacy of the first Jewish American woman to serve on the US Supreme Court, thus, speaks volumes about America’s potential for progress.
But Ginsburg knew her success was more an exception than the rule. Her life experiences constantly reminded her that the gulf between America, the ideal, and America, the reality, was wide. During her Senate confirmation hearing in 1993, Ginsburg candidly stated, “I am alert to discrimination. I grew up during World War II in a Jewish family. I have memories as a child, even before the war, of being in a car with my parents and passing a place in [Pennsylvania], a resort with a sign out in front that read: “No dogs or Jews allowed.”
For too many African Americans, Jews, and women of Ginsburg’s generation, legal exclusion from certain educational institutions, neighbourhoods and professions was a daily reminder there were two Americas. One for the insiders, and another for outsiders. This reality influenced how she practised her profession.
In a 2018 interview, Ginsburg admitted that “the sense of being an outsider – of being one of the people who had suffered oppression for no . . . no sensible reason . . . it’s the sense of being part of a minority. It makes you more empathetic to other people who are not insiders, who are outsiders.”
Coupled with her Jewish upbringing that instilled in her a firm belief in the fight for justice, Ginsburg’s outsider status among the first cohort of female students at Harvard Law School and few female law professors nationwide in the 1960s reminded her daily how law perpetuated societal discrimination. Accordingly, she committed her life’s work to dismantling the legal structures that systematically denied women and minorities opportunity and agency.
It should come as no surprise that Ginsburg’s work has inspired a generation of people who experience outsider status in the US, including Muslims. For the past 20 years, overt anti-Muslim racism has been rampant. Ranging from protests calling on Muslims to get out and “go home” to state legislation seeking to deny Muslims the right to practice their religion as part of an “anti-Shariah” national campaign, Muslims have been as openly condemned as Jews were a century ago.
When the Supreme Court in the case of Hawaii v Trump upheld President Donald Trump’s executive order imposing a ban on Muslim immigration, Ginsburg joined Justice Sonia Sotomayor in issuing a scathing dissent.
The two called out the majority for “ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.” They boldly compared the upholding of the Muslim ban to the court’s shameful 1944 ruling in the Korematsu v United States case which upheld the internment of Japanese Americans and immigrants under the pretext of national security during World War II.
Ginsburg knew all too well the grave dangers of a candidate for president calling for a “total and complete shutdown” of an entire religious group. In a July 2016 interview with the New York Times, she said: “I can’t imagine what this place would be – I can’t imagine what the country would be – with Donald Trump as our president.” As America experiences historic levels of political strife and polarisation – due in large part to Trump’s divisive rhetoric and policies – Ginsburg’s concerns have proven prescient.
While her life and legacy remind us of America’s tremendous potential for justice and equality, the political fight over her replacement is an ominous warning of the fragility of the American project. Heightened political polarisation, toxic masculinity, and the resurgence of white nationalism threatens the values for which Ginsburg stood – the rule of law, equality, and opportunity.
As we mourn her death and honour her legacy, let us remember her words of wisdom before the Senate 24 years ago, “What has become of me could happen only in America. Like so many others, I owe so much to the entry this Nation afforded to people yearning to breathe free.”
It is now our turn to act on the courage of our convictions to continue the work she began.
— Sahar Aziz, Professor of Law, Chancellor’s Social Justice Scholar, and Director of the Center for Security, Race and Rights at Rutgers University Law School (Newark)
This article was originally published here as well as being posted on the Race and the Law Prof Blog
History has a way of repeating itself. Several years ago Alaska Supreme Court Justice Dana Fabe was cruising along in her retention election. She served three terms as the court’s chief justice (2000–2003, 2006–2009, 2012–2015). She was the first woman appointed to the Alaska Supreme Court and the Alaska Supreme Court’s first female chief justice. Shortly before the election Lawn signs popped up to call for her defeat. Radio spots called for her defeat. Justice Fabe was opposed for retention by the private group CitizenLink, the public policy arm of the national Christian group Focus on the Family, weeks before the election. The group sought to have Alaskans vote against her retention. Fabe discussed this issue during the Evaluating Appellate Judges: Preserving Integrity, Maintaining Accountability conference (2011) Conference
Merit selection and retention elections were suppose to depoliticize state courts. It does not always work. The timing of the attack on Justice Fabe made raising money and then effectively spending it impossible. But she mounted a spited campaign quickly and was retained. Now it is happening again. “Christian, conservative groups organize to oust Supreme Court justice”: Nathaniel Herz of Alaska Public Media has a report that begins, “A coalition of conservative and religious leaders has launched a campaign to oust an Alaska Supreme Court justice whose rulings they oppose. The group, Alaskans for Judicial Reform, announced its campaign against Justice Susan Carney on Monday with a news conference in front of a downtown Anchorage courthouse.”
blog.amjudges.org 