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.

The Police Did A Bad Job Defense

There are many names to the defense mostly centered upon reasonable doubt. But in some cases judges are requested to give even more specific jury instructions.

Lisa Steele has posted Investigating and Presenting an Investigative Omission Defense (Criminal Law Bulletin, Vol. 57, Forthcoming) on SSRN. Here is the abstract:This paper explores defense challenges to the adequacy of police investigations, and investigative lapses as a cause for reasonable doubt. It focuses on case law from Massachusetts, which has four decades of state appellate case law about investigative omission evidence and jury instructions. It talks about the constitutional nature of the defense, how it differs from third-party culprit defenses, and evidence issues that may arise.

The paper also discusses cognitive biases that can affect even well-trained, experienced police investigators and/or prosecutors. Tunnel vision, confirmation bias, and other mental shortcuts can lead to investigative lapses when evidence that the defendant is not the culprit is mentally ignored or downplayed.

Have We Reached The Point Of No Return?

Have we reached the point of no return. “End the Poisonous Process of Picking Supreme Court Justices; I’m a libertarian-conservative; We need to depoliticize the court and appoint members to a single 18-year-term”: Law professor Steven G. Calabresi has this essay online at The New York Times. It is an interesting read but amending the United States Constitution is a difficult process in the best of circumstances (see the defeat of the ERA).

You Adults In The Criminal Justice System

What should we do with young adults who come in contact with the criminal justice system. should we treat them differently? Stephen Woodwark and Nessa Lynch (affiliation not provided to SSRN and Victoria University of Wellington – Faculty of Law) have posted ‘Decidedly but Differently Accountable’? – Young Adults in the Criminal Justice System (Stephen Woodwark and Nessa Lynch “’Decidedly but Differently Accountable’? – Young Adults in the Criminal Justice System” NZ L Rev, Forthcoming) on SSRN. Here is the abstract: Young adults are increasingly recognized as a distinct group, both in society and in the context of the criminal justice system. This article explores the evidence which highlights the distinct characteristics of young adults, and the principle supporting differential treatment of this age cohort. Consideration is given to the existing provisions that cater for young adults, including the newly established Young Adult List Court. Particular focus is given to assessing the efficacy of discounts provided for age under the Sentencing Act 2002. Two potential conceptual models for reform are canvassed. Processes and responses available under the current youth justice system may be extended where appropriate; such an approach has been adopted by several overseas jurisdictions. Alternatively, a distinct ‘third system’ may be established with procedures and outcomes developed specifically for young adults.

American Judges Association Mourns the Passing of Justice Ruth Bader Ginsburg

The American Judges Association (AJA), the largest Judicial organization in North America and the voice of the Judiciary, joins the nation and the world in mourning the passing of Justice Ruth Bader Ginsburg. The AJA sends our prayers and condolences to her family and hope they find some comfort in the legacy and memories she left behind. We affectionately remember her as “Notorious RBG,” a moniker she was proud to share with the late rapper, Notorious B.I.G., because they were both “straight out of Brooklyn.”

Ruth Bader Ginsburg was a judicial icon who changed the world for American women in her lifelong mission for gender equality. She worked tirelessly to break down the roles that society assigns to women and men by using the Constitution, her impartial and fair mind, and her understanding of justice. Her dissent in the Lilly Ledbetter case led to President Barack Obama signing the Lilly Ledbetter equal pay act into law.

She was the second woman appointed to the United States Supreme Court. She was a champion of equal rights for women – and all people regardless of sex, gender identity, race, color, creed, or national origin. She was brilliant and strategic, wise and just, and her commanding presence and fair insight will be missed. Her love of the law made her a beloved jurist and an inspiration to many across the world.

Ruth Bader Ginsberg was a mother, a United States Supreme Court Justice, and a wife – three jobs that would be daunting and close to impossible for anyone. Yet, she was unwavering in her advancement of equality, no matter the barriers and social norms she confronted.

Let us honor her by continuing her mission toward equality in all facets of our American lives and remind ourselves that even the smallest figure can command a mighty presence and change our world. In honor of Justice Ginsburg’s memory, the AJA affirms our commitment to advancing equal justice for all. Thank you, RBG.

Should We Rethink Harmless Error?

Too often appellate decisions decided on harmless error grounds are not serious read by lawyers (OK and trial judges as well). They appellate court spends most of the opinion focused on why the error is harmless and rarely state emphatically: DO NOT DO THIS AGAIN!!! So perhaps we should rethink harmless error.

Justin Murray (New York Law School) has posted Policing Procedural Error in the Lower Criminal Courts (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract: The criminal justice system depends on reviewing courts to formulate norms of procedural law and to make sure those norms are actually followed in the lower courts. Yet reviewing courts are not performing either of these functions very well. No single factor can fully explain why this is the case, for there is plenty of blame to go around. But the harmless error rule is a major culprit. The conventional approach to harmless error review prohibits reversal of a defendant’s conviction or sentence, even when the law was violated during proceedings in the lower court, unless that violation influenced the outcome below. This limitation impedes effective oversight of the lower courts in two significant ways. First, it enables trial judges, prosecutors, and other relevant entities (such as a district attorney’s office, to name one example) to persistently evade accountability for procedural errors, diminishing their incentives to comply with legal norms. And second, it provides reviewing courts with a handy tool to avoid resolving legal claims on their merits. Instead of holding that an error did or did not occur, thereby helping trial judges, prosecutors, and others learn what the law requires going forward, reviewing courts can—and often do—affirm on factbound harmless error grounds without ever adjudicating the legality of the challenged conduct.

These failings call for a major shift in how courts review procedural error. I propose that, in addition to examining whether an error affected the outcome, as current law directs, a reviewing court should also consider whether (1) reversal would substantially help to prevent future errors, (2) the error caused substantial harm to a legally protected interest unrelated to the outcome, and (3) the benefits of reversal, as tabulated in the previous steps, outweigh its costs. After making the case for this framework and discussing how to operationalize each of its components, I then explore, a bit more tentatively, whether the same set of ideas could help stimulate much-needed rethinking of other controversial rules that further obstruct the policing of procedural error in the lower criminal courts.


What Are The Effects of The Proliferation of Video Hearings?

The Brennan Center for Justice at NYU School of Law released a new paper and set of principles on remote court proceedings. The paper, The Impact of Video Proceedings on Fairness and Access to Justice in Court, collects and summarizes existing scholarship on the effects of video technology in judicial proceedings. While existing research is limited, the paper suggests reason for caution in expanding the use of video proceedings, as well as the need for further research on their potential effects.One study of criminal bail hearings found that defendants whose hearings were conducted over video had substantially higher bond amounts set than their in-person counterparts, with increases ranging from 54 to 90 percent, depending on the offense. There is a lot of valuable insight in this report. For example, 

  • A study of immigration courts found that detained individuals were more likely to be deported when their hearings occurred over video conference rather than in person.
  • Several studies of remote witness testimony by children found that the children were perceived as less accurate, believable, consistent, and confident when appearing over video. 
  • In three out of six surveyed immigration courts, judges identified instances where they had changed credibility assessments made during a video hearing after holding an in-person hearing. 

Research also suggests that the use of remote video proceedings can make attorney-client communications more difficult. For example, a 2010 survey by the National Center for State Courts found that 37 percent of courts using videoconferencing had no provisions to enable private communications between attorneys and their clients when they were in separate locations.  Remote proceedings can likewise make it harder for self-represented litigants to obtain representation and other forms of support by separating them from the physical courthouse. A study of immigration hearings found that detained immigrants who appeared in person were 35 percent more likely to obtain counsel than those who appeared remotely. 

Virtual Trials

Susan A. Bandes and Neal Feigenson (DePaul University – College of Law and Quinnipiac University – School of Law) have posted Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom (Buffalo Law Review Vol. 68, No. 5, Forthcoming) on SSRN. Here is the abstract: Faith in the legitimating power of the live hearing or trial performed at the place of justice is at least as old as the Iliad. In public courtrooms, litigants appear together, evidence is presented, and decisions are openly and formally pronounced. The bedrock belief in the importance of the courtroom is rooted in common law, constitutional guarantees, and venerated tradition, as well as in folk knowledge. Courtrooms are widely believed to imbue adjudication with “a mystique of authenticity and legitimacy.” The covid-19 pandemic, however, by compelling legal systems throughout the world to turn from physical courtrooms to virtual ones, disrupts and calls into question longstanding assumptions about the conditions essential for the delivery of justice. These questions are not merely tangential – they implicate many of the core beliefs undergirding the U.S. system of justice, including the whole notion of “a day in court” as the promise of a synchronous, physically situated event with a live audience. Rather than regard virtual courts as just an unfortunate expedient, temporary or not, we use them as an occasion to reflect on the essential goals of the justice system, and to re-examine courtroom practices in light of those goals. We draw on social science to help identify what can be justified after the myths are pared away. Focusing on three interrelated aspects of traditional courts – the display and interpretation of demeanor evidence; the courtroom as a physical site of justice; and the presence of the public – we prompt a reassessment of what our legal culture should value most in courtroom adjudication and what we are willing to trade off to achieve it.

The Long Term Consequences of Convictions Are Worse Than We Think

According to a new report from the Brennan Center for Justice  the economic consequences of convictions and sentences on people of color are even worse than we thought. The report begins, “America’s 400-year history of racial injustice continues to produce profound economic inequalities — a reality our society must no longer ignore. The net worth of a typical white family, for example, is 10 times that of a typical Black family.1 Shockingly, despite the successes of the civil rights movement, this racial wealth gap has barely changed in the last half century.2. The full report can be found at https://www.brennancenter.org/sites/default/files/2020-09/EconomicImpactReport_pdf.pdf

How Would Your State Do?

The Harvard Law School Criminal Justice Policy Program just released this notable new report titled  “Racial Disparities in the Massachusetts Criminal System.”  Thanks tp Professor Doug Berman  here is a brief account of the 100+-page report and its findings :

People of color are drastically overrepresented in Massachusetts state prisons.  According to the Massachusetts Sentencing Commission’s analysis of 2014 data, the Commonwealth significantly outpaced national race and ethnicity disparity rates in incarceration, imprisoning Black people at a rate 7.9 times that of White people and Latinx people at 4.9 times that of White people.

In an attempt to better understand the sources of these disparities, Chief Justice Ralph D. Gants of the Supreme Judicial Court of Massachusetts asked Harvard Law School to research racial disparities in the Massachusetts criminal system.

CJPP collected administrative data from several criminal justice agencies, analyzing over 500,000 cases. In our report, we detail the results of our analysis of every stage of the criminal process. Our findings include:

  • Black and Latinx people are overrepresented in the criminal system.  Although Black people make up only 6.5% of the state’s population, African Americans are the subjects of 17.1% of criminal court cases. Similarly, Latinx people constitute only 8.7% of the Massachusetts population but 18.3% of the cases.  By contrast, White people, who make up roughly 74% of the Massachusetts population, account for only 58.7% of cases in the criminal system.
  • Black and Latinx people sentenced to incarceration in Massachusetts receive longer sentences than their White counterparts, with Black people receiving sentences that are an average of 168 days longer and Latinx people receiving sentences that are an average of 148 days longer.
  • Racial and ethnic differences in the type and severity of initial charge account for over 70 percent of the disparities in sentence length, overshadowing all other factors, including defendants’ criminal history and demographics, court jurisdiction, and neighborhood characteristics.
  • Among the subset of cases where the person was sentenced to incarceration in a state prison (i.e. cases involving charges that carry the longest potential sentences and where the racial disparity is largest), Black and Latinx people are convicted of charges roughly equal in seriousness to their White counterparts despite facing more serious initial charges and longer sentences.
  • Black and Latinx people charged with drug offenses and weapons offenses are more likely to be incarcerated and receive longer incarceration sentences than White people charged with similar offenses. This difference persists after controlling for charge severity and other factors.

Expert Witnesses On A Confession?

Applied Cognitive Psychology has scheduled a study for publication in a future issue: “The psychology of confessions: A comparison of expert and lay opinions.”
The authors are Fabiana Alceste, Timothy J. Luke, Allison D. Redlich, Johanna Hellgren, Aria D. Amrom, & Saul M. Kassin.
Here’s the abstract: “Despite a body of confessions research that is generally accepted in the scientific community, courts often exclude experts on the ground that such testimony would not assist the jury, which can use its common sense. To examine whether laypeople know the contents of expert testimony on confessions, we asked 151 lay participants to indicate their beliefs about 30 confession‐related statements used in a recent survey of 87 confession experts (Kassin et al., American Psychologist, 2018, 73, 63–80). Participants agreed with experts on only 10 of the 30 propositions, suggesting that much of the psychology of confessions is not common knowledge and that expert testimony can assist the trier of fact.”

TO OBTAIN A COPY OF THE ARTICLE: Contact info for reprint requests and questions or other correspondence about this article: Fabiana Alceste, Department of Psychology, Butler University, 4600 Sunset Ave., Indianapolis, IN 46208, USA — Email: falceste@butler.edu