About kevinburkeaja

Judge Burke is a District Court Judge in Minnesota. In September this year he will become a senior judge. He is a past president of the American Judges Association and currently the AJA treasurer.

So I Was Just Curious Said The Police Officer

Jeannine Bell (Indiana University Maurer School of Law) has posted The Violence of Nosy Questions (Boston University Law Review, Vol. 100) on SSRN. Here is the abstract: This Essay examines a little-studied aspect of police procedure: police officers’ unfettered power to ask questions of motorists. The questions officers ask after they have stopped a car can run the gamut from questions about the nature of the motorist’s travel plans to nosy personal questions. Such questions are often intrusive, and drivers report feeling degraded by having to answer them. This Essay argues that these questions should be regulated because giving officers complete control over what they ask motorists provides a significant space for racial discrimination in policing, creates resentment, and encourages minorities to distrust the police.

Neuroscience Evidence

Deborah W. Denno (Fordham University School of Law) has posted Empirical Use of Neuroscientific Evidence in Criminal Justice (in THE ENCYCLOPEDIA OF BEHAVIOURAL NEUROSCIENCE (2nd ed.). Amsterdam, Netherlands: Elsevier _ (Sergio Della Salla, ed. 2021) (Forthcoming)) on SSRN. Here is the abstract: The growing influx of neuroscientific evidence in various criminal justice systems has prompted several excellent assessments of the nature and degree of its impact in courtrooms in the United States and other countries. However, there have been few efforts to conduct a comparative analysis of systematic empirical research on the use of neuroscientific evidence in criminal cases, which is this chapter’s goal. This review breaks new ground by detailing the critical similarities and differences among all seven empirical studies that researchers have conducted up to 2019. What is the main takeaway? Across most of the studies, neuroscientific evidence was firmly planted in five different countries’ criminal justice systems, and defense attorneys primarily used it for purposes of mitigation. Research findings documented the extent of its impact at all phases of the criminal justice system, particularly sentencing. Most studies also reported that the use of such evidence in the courtroom was increasing over time or, if not, it was being more thoroughly discussed. In essence, neuroscientific evidence has a secure foothold in criminal justice that will only become stronger. That said, it is critically important to emphasize the studies’ limitations and the nuances behind their results. While the studies employed a common framework and relied on widely accepted legal databases, they also shared deep structural challenges. Empirical research is showing more accurately how neuroscientific evidence is helping criminal justice systems better assess mental states and assign punishments. Yet, the legal system’s process of collecting and organizing information needs to advance and modernize.


When should a court interpret their state constitution’s constitution to provide more protection that the United States Constitution as interpreted by the federal courts? That is the issue in a recent case in Arizona. Reason has the story:

” Since joining the Arizona Supreme Court in 2016, libertarian litigator-turned-jurist Clint Bolick has made a name for himself as a judicial defender of constitutional rights. Justice Bolick did so again this week in a case that pitted the U.S. Supreme Court’s flawed Fourth Amendment jurisprudence against the more expansive privacy protections guaranteed by the text of the Arizona Constitution.

The case is Arizona v. Mixton. At issue was whether the police must get a warrant before obtaining a suspect’s I.P. address and internet service provider (ISP) subscriber information. With that info in hand, the police are able to determine which websites a suspect has visited. Taking its cue from the U.S. Supreme Court—which said in Smith v. Maryland (1979) that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties”—a majority of the Arizona Supreme Court ruled in favor of warrantless I.P. address and ISP data searches.https://ce84688d924f1f080ec65fb3a0bf4bc4.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.html

Writing in dissent, Justice Bolick faulted his colleagues for shortchanging the text and history of their own state constitution. As Bolick noted, according to Article 2, Section 8 of the Arizona Constitution, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” But in the present case, the majority placed “the private affairs clause in lockstep with the less-protective Fourth Amendment as construed by the United States Supreme Court, thereby draining the meaning expressed in the clause and intended by its architects.”

To be sure, Bolick noted, “the federal constitution is the baseline for the protection of individual rights below which the states cannot go. But in our system of federalism, states are free to provide greater protections.” And the text of the Arizona Constitution, Bolick argued, most certainly does offer greater privacy protections than what the U.S. Supreme Court has allowed in its Fourth Amendment precedents.

In fact, Bolick wrote, those federal precedents should have had no sway in the present case. When the Arizona Constitution was adopted in 1912, Bolick noted, the term “private affairs” was widely understood “to broadly encompass personal and business matters, even if transmitted through third parties, thus making Arizona’s constitutional provision irreconcilable with the later-emerging federal ‘third-party’ doctrine allowing any information divulged to a third party to be obtained by the government without a warrant.”

In short, the framers of the Arizona Constitution “aimed, as plainly as they could, to protect our private affairs from unsupervised government scrutiny.” Unfortunately, thanks to “the majority’s non-textual opinion,” Bolick concluded, that meaning has been drained “from this essential constitutional protection.”

The Arizona Supreme Court’s decision in Arizona v. Mixton is available here.”


The Evidence ProfBlogger has an interesting post about an Ohio judge who limited re-cross examination. There may well not be any judges who have not become frustrated with lawyers who drag out proceedings. And so the temptation is to just cut them off. But as this case illustrates better practice is be patient.

Federal Rule of Evidence 611(b) states that

Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.

Meanwhile, Ohio Rule of Evidence 611(b) is broader. It states that

Cross-examination shall be permitted on all relevant matters and matters affecting credibility.

Yesterday’s opinion of the Court of Appeals of Ohio, Eighth District, Cuyahoga County in State v. Umstead, 2021 WL 62151 (Ohio. App. 2021), however, did not deal with cross-examination; it dealt with recross-examination.

In Umstead, Robert Umstead was charged with aggravated menacing. After an eyewitness for the prosecution testified on direct examination, the defense cross-examined her, followed by the prosecutor on redirect examination. Then, the following exchange occurred:

DEFENSE ATTORNEY: Can I have one –
THE COURT: No. All right?
DEFENSE ATTORNEY: I can’t recross?
THE COURT: No. No means no, right?
DEFENSE ATTORNEY: I want to recross.
THE COURT: I said no.
DEFENSE ATTORNEY: Is there a reason I don’t – I can’t –
THE COURT: Because I don’t do that in 12-B and it’s my courtroom and I said no.

After Umstead was convicted, he appealed, claiming that the trial judge improperly precluded recross-examination. After noting that Ohio Rule of Evidence 611(b) is broader than Federal Rule of Evidence 611(b), the Court of Appeals held that “[u]nder no circumstances is a blanket policy prohibiting all recross-examination appropriate.” 

The Court of Appeals then granted Umstead a new trial, finding that

Eyewitness testimony…can carry great weight considering that a single credible eyewitness can sustain a conviction….The state was given the opportunity to reexamine [the eyewitness. Umstead’s counsel stated he had only one further question he wished to ask [the eyewitness] on recross-examination, which mitigates any concerns that might merit a reasonable limit on recross-examination. Nevertheless, his request to briefly recross [the eyewitness] was denied with no reason other than “I don’t do that in 12-B and it’s my courtroom and I said no.”

This statement demonstrates that the trial court had a blanket prohibition on recross-examination. The trial court abused its discretion in imposing this blanket prohibition, and Umstead was denied a fair trial as a result.


Criminal Municipal Courts

A large part of The American Judges Association’s membership sit in limited jurisdiction courts…..municipal courts if you will. When the Association was founded the membership was almost exclusively judges who presided in limited jurisdiction courts. So an article about municipal courts in of all places the Harvard Law Review should be of interest to a lot of judges. Criminal Municipal Courts is a  new article authored by Alexandra Natapoff just published in the latest issue of the Harvard Law Review. Here is its abstract:

Municipal courts are the lowest and least scrutinized echelon of the U.S. criminal system.  Largely ignored by judicial theorists, municipal governance scholarship, and criminal theory alike, these city-controlled courts operate on the intellectual sidelines; even basic public information about their dockets and operations is scarce.  This Article brings municipal courts into the broader legal and scholarly conversation, offering the first comprehensive analysis of the enormous municipal court phenomenon.  Nationwide, there are over 7,500 such courts in thirty states. Collectively they process over three and a half million criminal cases every year and collect at least two billion dollars in fines and fees. Created, funded, and controlled by local municipalities, these courts — sometimes referred to as “summary” or “justice” or “police” courts — are central to cities’ ability to police, to maintain public safety, and to raise revenue.  At the same time, they often exhibit many of the dysfunctions for which lower courts have been generally criticized: cavalier speed, legal sloppiness, punitive harshness, and disrespectful treatment of defendants.  Unlike their state counterparts, however, the U.S. Supreme Court has formally excused municipal courts from some basic legal constraints: judges need not be attorneys and may simultaneously serve as city mayors, while proceedings are often summary and not of record. These hybrid institutions thus pose thorny conceptual challenges: they are standalone judicial entities that are also arms of municipal government operating under reduced constitutional constraints as they mete out criminal convictions.  As such, they create numerous tensions with modern norms of due process, judicial independence, and other traditional indicia of criminal court integrity.

This Article provides a framework for appreciating the institutional complexity of this lowest tier of American criminal justice.  Municipal courts deviate substantially from the classic model of courts as neutral, independent guardians of law. They are also vehicles for cities to express their political autonomy and redistribute wealth, and thus constitute underappreciated engines of local governance.  As criminal adjudicators, they quietly contribute to localized mass incarceration while threatening the integrity of some foundational features of the criminal process.  At the same time, they represent a potentially attractive opportunity to render criminal institutions more locally responsive.  Finally, they reveal a deep dynamic at the bottom of the penal pyramid: low-status cases and institutions exert a formative influence over law itself.  These complexities make reform especially challenging.  There are doctrinal reforms that could strengthen municipal court operations, but they are inherently limited.  The deeper reform would be to stop dismissing these courts as minor, inferior institutions and to take them and their millions of defendants seriously across the board of law, policy, and politics.  Widely influential, jurisprudentially challenging, and democratically complicated, municipal courts deserve a more central place in the modern legal conversation.

The Right To A Free Transcript

By CrimProf BlogEditor ShareGabriel Jackson Chin and Hannah Bogen (University of California, Davis – School of Law and affiliation not provided to SSRN) have posted Warren Court Incrementalism and Indigent Criminal Appellants’ Right to Trial Transcripts (51 University of the Pacific Law Review 667 (2020)) on SSRN. Here is the abstract: This is an article about forms. The Supreme Court has held that indigent defendants in criminal cases are entitled to the assistance of counsel at trial and on the first appeal as of right, and to provision of transcripts without cost. However, the Administrative Office of U.S. Courts has promulgated Criminal Justice Act Form 24, used by appointed counsel to obtain transcripts for use in preparing a brief on appeal. CJA Form 24 provides that indigent appellants must get permission of a judge to obtain transcripts of jury selection, prosecution and defense opening, prosecution and defense summation, or jury instructions. Since reversible error regularly occurs or is exacerbated in these portions of the trial, not having them is a serious disadvantage in evaluating the soundness of a trial.

Conditioning obtaining a complete transcript on a statement of reasons that it is necessary in a particular case is inconsistent with the Supreme Court’s modern decisions on the role of appellate counsel in criminal cases. For example, in 1988 in McCoy v. Court of Appeals of Wisconsin, the Supreme Court explained that an appointed “attorney’s obligations as an advocate” require that counsel “provide his or her client precisely the services that an affluent defendant could obtain from paid counsel-a thorough review of the record and a discussion of the strongest arguments revealed by that review.” Under modern practice, the trial record is used to identify appellate issues, it is not that an indigent person must identify appellate issues first, in order to obtain the record for review.

In the mid-twentieth century, concerns about cost and delay led Chief Justice Burger and other bar leaders to search for alternatives to verbatim transcripts. But agreed statements of facts and bystander’s bills of exceptions never caught on in the federal appeals courts, and the advent of computer-aided voice recognition transcription makes it unlikely that a cheaper or faster substitute will arise. Perhaps in many or most districts, judges sign Form 24’s automatically, in which case the ritual of getting the form to the judge and having them send it back is a needless waste of time and taxpayer dollars. It is clear, though, that in some cases, appellants have been denied permission for preparation of a complete trial transcript. In either event, to comply with the Constitution and to facilitate accurate and speedy disposition of federal criminal appeals, CJA Form 24 should be changed to require preparation of a complete trial transcript in every case where a trial conviction is appealed.

The Right To A Speedy Trial In The Pandemic

Almost all of the states as well as many parts of Canada have struggled with balancing public health concerns and the right to a speedy trial. A federal judge says a South Dakota court can’t use the coronavirus pandemic as an excuse to delay a trial and in the same breath criticized South Dakota’s response to the pandemic, saying it has done “little, if anything,” to mitigate the spread of the virus, the Sioux Falls Argus Leader reports. The article contains the judge’s actual order. In it U.S. District Judge Charles Kornmann wrote : “South Dakota has done little, if anything, to curtail the spread of the virus. South Dakota cannot ‘take advantage’ of its own failures to follow scientific facts and safeguards in entering blanket denials of the rights of speedy trials.”

Service Dogs Are OK?

By Evidence ProfBlogger Share

The Americans With Disabilities Act defines a “service animal” as

any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.

So, assume that a trial judge allows a victim/witness to testify with a service dog sitting with him in the service box. Would this create undue sympathy for the victim and prejudice the defendant? This was the question addressed by the Appellate Court of Illinois, Second District, in its recent opinion in People v. Tapley, 2020 WL 7417620

In Tapley, David J. Tapley, was charged with aggravated criminal sexual abuse against R.L., a minor. Before trial,

the State filed a motion in limine to allow R.L., who was 16 years old at the time, to testify in the presence of her “facility dog.” The State alleged that R.L. suffered from PTSD as a result of defendant’s abuse and that R.L. had a facility dog that accompanied her everywhere. The State alleged that R.L. had previously suffered from PTSD episodes that affected her ability to go to school and communicate effectively but that the use of the facility dog had enabled her to attend school again. The State alleged that it had reason to believe that R.L. might suffer a PTSD episode while testifying that would prevent her from reasonably communicating with the jury.

The court granted the motion, and Tapley was thereafter convicted. Subsequently, Tapley appealed, claiming, inter alia, “that the dog’s presence violated his right to a fair trial because it created undue sympathy for R.L.” The court disagreed, finding that

“[a]ll of the courts which have examined a challenge to the use of a comfort dog in a courtroom have concluded that the dog’s presence is not inherently prejudicial.” Commonwealth v. Purnell, 233 A.3d 824, 836 (Pa. Super. Ct. 2020). In particular, the Washington Supreme Court examined this issue in the context of a facility dog in State v. Dye, 309 P.3d 1192 (Wash. 2013). The defendant there argued that, among other things, the dog’s presence improperly bolstered the main witness’s credibility by giving his testimony an “‘aura of truth and sympathy’” and that the dog made the witness look pitiful and like a victim who was telling the truth….The court stated that none of the defendant’s theories had any basis in the record and that defense counsel had conducted an extensive cross-examination of the witness….It further stated that “whatever subconscious bias may have befallen the jury was cured by the trial court’s limiting instruction, which cautioned the jury not to ‘make any assumptions or draw any conclusions based on the presence of this service dog.’”…Similarly, in People v. Tohom, 109 A.D.3d 253, 268 (N.Y. App. Div. 2013), the court concluded that a facility dog’s accompaniment of the 15-year-old alleged victim “did not adversely affect the defendant’s due process right to a fair trial or compromise his constitutional right of confrontation.” The court stated that it was not unmindful that the dog “may have engendered some sympathy for [the witness] in the minds of the jurors,” but it noted that there was “no proof that such sympathy was significantly greater than the normal human response to a child’s testimony about his or her sexual abuse at the hands of an adult.”…The court further noted that the trial court instructed the jury not to allow sympathy to enter into its considerations, especially with respect to an outside factor like the facility dog.

Applying this analysis to the case at hand, the court concluded thatA similar analysis applies here, with even greater consideration given to R.L.’s position because she requested the dog’s presence under the ADA. The trial court had to balance defendant’s right to a fair trial with R.L.’s rights under the ADA and as a minor who was a victim of sexual abuse. Indeed, according to the record, R.L. allegedly suffered from PTSD in the first place because of defendant’s actions….We also note that the Supreme Court of Illinois Policy on Access for Persons with Disabilities states that the “Court will honor the choice of the individual, unless it demonstrates that another equally effective accommodation is available, or that the requested accommodation would result in a fundamental alteration of Court activities or undue financial and administrative burdens.”…The trial court had a gate installed on the witness box to obstruct the jury’s view of the dog and held a separate hearing with the dog present so that the parties could view how the dog would be seated next to R.L. during the trial. R.L. and the State disclosed that the dog would probably get on her lap while she testified, because it was one of the dog’s “commands” when R.L. was anxious, and the trial court stated that R.L. should minimize that as much as possible. The trial court further stated that R.L. would be seated with the dog before the jury was brought in and that, after her testimony, the jury would leave the courtroom before R.L. and the dog got up. Before R.L. testified, the trial court instructed the jury in detail regarding the dog, stating: “Ladies and Gentlemen of the Jury, I want to instruct you at this time that the witness has a service dog with her while she testifies. You are not to draw any inference in favor or against either side because of the dog’s presence. And the focus of your attention should be on the testimony of the witness. The presence of the service dog in the courtroom shall not be considered in any way in the jury’s deliberations or verdicts.”

Major Change In Auto Searches

Police can no longer search cars without a warrant unless there is both probable cause to believe a crime occurred and emergency circumstances that require immediate action, the Pennsylvania Supreme Court ruled in an opinion That’s a reversal for the court, which in a 2014 opinion in the case Commonwealth v. Gary had cleared the way for warrantless searches.  

The 4-3 decision said the state constitution’s privacy protections are greater than the U.S. Constitution’s and that those protections extend to vehicles. “Difficulties in clarifying the scope of the exigency requirement will lead to debates about what exactly the Pennsylvania Constitution demands in a given situation. But so what?” wrote Justice Christine Donohue, referring to the state’s constitutional language on searches.  
The Supreme Court of Pennsylvania decision  consists of a majority opiniona concurring opinion, and three dissenting opinions (herehere, and here).

A Canadian Perspective Of Implicit Bias

Chris Rudnicki has posted Implicit Bias and Racial Profiling: Why R V Dudhi’s Novel ‘Attitudinal Component’ Imposes an Unjustifiable Burden on Complainants ((2020) 68:4 Crim LQ 410-428) on SSRN. Here is the abstract: In the recent case of R v Dudhi [2019 ONCA 665], the Ontario Court of appeal recognized that racial profiling in Canada is “as difficult to prove as it is pernicious.” This paper contends that the Dudhi court, perhaps inadvertently, has rendered the task yet more difficult by introducing the “attitudinal component” to the racial profiling test. By requiring racial profiling claimants in the criminal context to establish that the officer accepts that race or racial stereotypes are relevant to offending or dangerousness, the Dudhi court imposes a new and unjustified burden. I conduct a post-Charter review of the jurisprudence and academic literature to show that this requirement finds no support in the racial profiling precedents, in critical race scholarship, or in the scientific literature on social cognition and implicit bias. I conclude the paper by sketching some possible responses that may assist claimants in overcoming this novel hurdle to racial profiling claims.