By CrimProf Blog

The podcast, available here, discusses Lange v. California. From the introduction:

The case asks whether a police officer violated the Fourth Amendment when he entered the garage of a person suspected of a misdemeanor crime without a warrant while in “hot pursuit” of him. Professor Jeffrey Fisher of Stanford University, who argued the case on behalf of Arthur Lange, and professor Donald Dripps of the University of San Diego Law School, a Fourth Amendment and criminal procedure expert, join host Jeffrey Rosen to discuss the case and its potential implications for policing, privacy, the Fourth Amendment, and more.

Since the inception of drug courts there has been a struggle to insure procedural due process. Early advocates of drug courts claimed that drug courts could not be effective within an adversarial system. There were critics of this approach most notably defense lawyers.  There are no easy answers. Addictive behavior that is part of chemical dependency is not an easy thing to deal with. Yet the mind set of “I am doing this for your own good” can lead to judicial arrogance. It can undermine procedural fairness which values voice by litigants and respect for litigants. 

“Procedural Due Process, Drug Courts, and Loss of Liberty Sanctions” is the  title of this article authored by Michael Sousa on available via SSRN.  Here is its abstract:

The exponential growth of problem-solving courts across the United States in the past several decades represents a paradigm shift in the American criminal justice system.  These spec that endeavors to treat and rehabilitate offenders with underlying conditions as an alternative to incarceration.  Drug treatment courts focus on providing drug addiction treatment services to offenders suffering from severe use disorders.  As a condition of participating in drug court, offenders agree to be bound by a system of sanctions imposed by the court in response to certain proscribed behaviors.One concern with the quotidian operations of drug treatment courts is whether, and to what degree, procedural due process applies in situations where a participant receives a sanction amounting to a loss of liberty, either a short-term jail stay or an order to attend a residential treatment facility for a designated period of time. Despite their thirty-year existence, these issues remain unresolved.  This Article highlights the current state of the law regarding procedural due process and liberty sanctions in drug treatment courts and then offers qualitative empirical data regarding how these knotty issues play out in action in the context of one adult drug treatment court located in a Western state.  Ultimately, I assert that based upon the very special context in which these problem-solving courts operate, judicial precedent requires only minimal due process protections prior to the imposition of loss of liberty sanctions, and such protections can be satisfied by having drug court clients sign a knowing waiver of these rights prior to the imposition of such sanctions – a practice not presently done in large measure in drug treatment courts nationwide.ialized courts depart from the traditional adversarial model commonly found in the judicial system towards a collaborative model of justice

The Berkeley City Council voted unanimously Tuesday night to approve a package of policy changes aimed at reforming policing in the city by reducing racial disparities in traffic enforcement.

“While Berkeley has a long history of progressive leadership, we are not immune from issues of systemic racism in policing and our criminal justice system,” Jesse Arreguín, mayor of the California city, told The Appeal.

Berkeley police will no longer be able to stop drivers for only minor traffic violations like equipment violations, expired vehicle registration, or not wearing a seatbelt. Instead, police will be directed to conduct traffic stops only for violations that endanger public safety, such as excessive speeding, running a red light or stop sign, and driving under the influence.

A person can still be cited for low-level offenses if they are pulled over for a public safety reason. For example, if a person is pulled over for speeding and they are driving with an expired registration, they will get ticketed for both, Arreguín said.

The Berkeley Police Association opposed the reforms, saying in a statement that they “will turn officers into filing clerks, gutting their much-needed time on the streets within our community.”

The policy package grew out of a working group Arreguín convened last yearon fair and impartial policing, which formed after the release of a 2018 study by the Center for Policing Equity. The study found that Black and Hispanic people were more than six times more likely than white people to be stopped by the Berkeley Police Department while driving and more than four times more likely to be stopped while walking. 

By Evidence ProfBlogger 

Texas Rule of Evidence 614 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 and, in civil cases, that person’s spouse;

(b) after being designated as the party’s representative by its attorney:

(1) in a civil case, an officer or employee of a party that is not a natural person; or

(2) in a criminal case, a defendant that is not a natural person;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) the victim in a criminal case, unless the court determines that the victim’s testimony would be materially affected by hearing other testimony at the trial.

So, can a defendant in a family violence case have a family-violence expert excluded from the courtroom when he testifies? That was the question addressed by the Texas Court of Appeals, Waco, in its recent opinion in Parrish v. State, 2021 WL 627934 (Tex.App. 2021).

In Parrish, Marcus Parrish was charged with assault family violence and sought to invoke Rule 614 to exclude a family-violence expert from the courtroom testimony. The judge denied his request, Parrish was convicted, and he appealed. On appeal, the court concluded thatthe Court of Criminal Appeals has held that a trial court is vested with discretion and may permit expert witnesses to be exempt from “the Rule,” so they may hear other witnesses testify and then base their opinions on such testimony….Prior to appellant’s testimony during the guilt-innocence phase of trial, appellant objected to the presence of Detective Michelle Starr of the Waco Police Department in the courtroom during his testimony, arguing that she is a fact witness in the case because she was the detective on the case, and because she drafted and signed the arrest-warrant affidavit. The State responded that Detective Starr had been designated as an expert in Assault Family Violence and that her presence was necessary to “observe the way [appellant] answers the questions and—and the way he behaves in the courtroom to be able to testify to that,” especially with regard to relationships between “assault family violence victims and perpetrators.”As noted above, the Court of Criminal Appeals has held that the trial court is vested with discretion and may permit expert witnesses to be exempt from “the Rule” so they may hear other witnesses testify and then base their opinions on such testimony….Therefore, in line with these cases, we find no abuse of discretion. The purpose articulated by the State regarding Detective Starr’s testimony—allowing a domestic violence expert to take appellant’s testimony into account when offering her opinion—falls within the exemptions provided for in the rule.

Boaz Sangero (Sapir Academic College) has posted Applying the STAMP Safety Model to Prevent False Convictions Based on Eyewitness Misidentifications (Albany Law Review, Vol. 83, 2020) on SSRN. Here is the abstract: In many criminal law systems, eyewitness identification of a suspect is sufficient to establish that they are the perpetrator of the crime in question, without any need for additional corroborating evidence. But this lofty legal status stands in contrast to the undisputed assertion in the professional literature that an erroneous eyewitness identification is far from rare, with many scholars holding it to be the most common cause of false convictions. On this background, this Article offers ways of reducing the rate of false convictions based on eyewitness misidentifications. The Article argues for the creation and application of a safety theory in the criminal justice system, specifically regarding eyewitness identifications. Therefore, after the Article connects between the modern theory of safety, which is well developed in other areas of our life, and the new theory of safety from false convictions; and after a deep discussion of one of the most serious hazards in criminal law — the hazard of false convictions based on eyewitness misidentifications — a specific safety model shall be developed, based on these discussions and on the innovative STAMP safety model. The substance of the suggested rules is based on both the psychological research and the legal literature. The high rate of false convictions is not an inevitable fate.

Viral Injustice is the title of a new article now available via SSRN authored by Brandon Garrett and Lee Kovarsky.  Here is its abstract:

The COVID-19 pandemic blighted all aspects of American life, but people in jails, prisons, and other detention sites experienced singular harm and neglect.  Housing vulnerable detainee populations with elevated medical needs, these facilities were ticking time bombs.  They were overcrowded, underfunded, unsanitary, insufficiently ventilated, and failed to meet even minimum health-and-safety standards.  Every unit of national and sub-national government failed to prevent detainee communities from becoming pandemic epicenters, and judges were no exception.

This Article takes the comprehensive look at the decisional law growing out of the COVID-19 detainee litigation, and situates the judicial response as part of a comprehensive institutional failure.  We read hundreds of COVID-19 custody cases, and our analysis defines the decision-making by reference to three attributes: the substantive right asserted, the form of detention at issue, and the remedy sought.  Several patterns emerged.  Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge — limiting such relief to vulnerable subpopulations.  The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes.

We draw three conclusions that bear on subsequent pandemic responses — including vaccination efforts — and incarceration more generally.  First, courts avoided robust relief by re-calibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments.  Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function.  Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend.  Before judges can effectively respond to pandemic risk, nonjudicial institutions will have to treat it differently than other health-and-safety threats, and judges will have to overcome their empirically dubious resistance to decarceration.

are you crazy some lawyers and judges will say. Perhaps they are right but Daniel Harawa (Washington University School of Law) has posted Sacrificing Secrecy (Georgia Law Review, Vol. 55 (2021)) on SSRN. it is a provocative commentary.

Here is the abstract: Juries have deliberated in secret since medieval times. The historical reason for the secrecy is that it promotes impartiality, which in turn protects a defendant’s right to a fair trial. But as it turns out, jurors are not always impartial. Lurid examples exist of jurors condemning defendants based on the defendant’s race, sexuality, ethnicity, and religion.

Generally speaking, courts cannot hear evidence of what transpired during deliberations. In 2017, however, the U.S. Supreme Court created an exception to this rule, holding that the Sixth Amendment requires courts to hear evidence of jurors making racially biased statements. But this exception means little if defendants have no way to uncover the bias. And because juries deliberate in private, it is incredibly difficult for defendants to discover what the jury discussed during deliberations.

This Article questions the wisdom of secret deliberations. It traces the history of jury secrecy and the public policy considerations that support secret deliberations, and it catalogs past attempts to record deliberations. It then discusses the racial bias exception to the jury no-impeachment rule created by the U.S. Supreme Court and explains how it is insufficient because it does not provide a mechanism for detecting bias. This Article then proposes a unique fix: that deliberations be memorialized and made part of the record in criminal cases. At times, secret deliberations frustrate, rather than promote, defendants’ fair trial rights. Accordingly, the practice of secret deliberations should be revisited.

“Supreme Court asked to decide if use of racial slur amounts to illegal discrimination; An employee alleges that he was repeatedly exposed to uses of the slur at his workplace”: Pete Williams of NBC News has this report

Emily LaGratta is one of the nation’s most committed advocates of procedural fairness. She has a new procedural fairness push: a partnership with the National Center for State Courts to offer two free “training” opportunities as part of a Fairness Challenge this April 2021. They’re not traditional trainings, actually, but one goal certainly is to have participants learn something!

There are two ways for court professionals and court teams to participate. In both cases, participants commit to engaging with the project only a few minutes a day for 4 weeks, then try out some new practices within their regular workday. OPTION 1. Three courts will be selected to receive complimentary “teeny course” training, which includes daily, interactive lessons delivered by email.OPTION 2. Individuals and court teams are invited to prioritize one bite-sized fairness practice each day for a month. It’s like an exercise challenge to stretch our fairness muscles, bit by bit. 
Registration closes March 10th, 2021. Participation prizes are available for all. 🙂
Register and learn more here:lagratta.com/fairness-challenge

“The 2016 police encounter involving retired California real estate agent Arthur G. Lange seemed routine, more likely to be on the TV show Cops than one destined for a major Fourth Amendment confrontation in the U.S. Supreme Court.The case involves a police officer who entered Lange’s garage without a warrant and questioned Lange after pursuing his vehicle because he heard erratic horn-blowing and loud music coming from the car.The question in Lange v. California, scheduled for argument Wednesday, is whether police officers who pursue someone suspected of a misdemeanor into a home may conduct a warrantless search or seizure. It is well-established that police in “hot pursuit” of a suspected felon in public may follow that suspect into a residence.The new case addresses whether pursuit of a misdemeanor suspect qualifies categorically as an exigent circumstance allowing an officer to enter a home without a warrant.” 
For the complete story  Mark Walsh has this report online at ABA Journal.

Lange v. California is a link to all the pleadings in the case.