Everyone in the criminal justice system is suceptable to a degree of unacceptable street. we work in an environment where there is a lot at stake, frequently far too many cases and now you add the pandemic. We all need to think about what our role is in adding to stress and leadership is needed to make some very necessary changes.

Valerio Baćak, Sarah Lageson and Kathleen Powell (Rutgers, The State University of New Jersey – School of Criminal Justice, Rutgers, The State University of New Jersey – School of Criminal Justice and Drexel University – Department of Criminology and Justice Studies) have posted The Stress of Injustice: Public Defenders and the Frontline of American Inequality on SSRN. Here is the abstract: Fairness and due process in the criminal justice system are all but unattainable without effective legal representation of indigent defendants, yet we know little about attorneys who do this critical work—public defenders. Using semi-structured interviews, this study investigated occupational stress in a sample of 87 public defenders across the United States. We show how the intense and varied chronic stressors experienced at work originate in what we define as the stress of injustice: the social and psychological demands of working in a punitive system with laws and practices that target and punish those who are the most disadvantaged. Our findings are centered around three shifts in American criminal justice that manifest in the stress of injustice: penal excess, divestment in indigent defense, and the criminalization of mental illness. Working within these structural constraints makes public defenders highly vulnerable to chronic stress and can have profound implications for their ability to safeguard the rights of poor defendants.

The Science Bench Book 2d Edition is Now Available

Judges are responsible for deciding whether to admit or exclude time-honored, as well as new types of scientific evidence. And, while judges are specialists in the law and courtroom procedure, they tend to be subject area generalists. How do judges evaluate complicated, rapidly changing evidentiary material when they are not experts in that field?
 
One invaluable resource is a bench book, such as those existing for search and seizure, drug courts and labor relations. The first edition was published in 2019.  However, it soon became apparent that a second edition was needed.    
 
JSI partnered with The National Judicial College (NJC), the nation’s largest provider of judicial education, to create the Science Bench Book for Judges, an overview of legal procedure involving validity, reliability, and admissibility of evidence. The project was funded by the State Justice Institute.
 
The Science Bench Book for Judges 2d is now available – online, downloadable, searchable, and free for judges across the United States and around the world. The book is meant to guide and assist judges during pre-trial, trial, and post-trial proceedings in both civil and criminal cases.

The Science Bench Book introduces research terminology, concepts, and the scientific method, as well as covers such concerns as expert testimony. It includes case citations, relevant legal authority, and evidentiary rulings.

It was prepared under the guidance and written by illustrious appellate justices, judges, legal scholars, and experienced lawyers (see biographies of writers and contributors). 

To learn more, click here.  To download the Science Bench Book for Judges 2d click  here.

In R. v. Landry, 2020 NBCA 72, the police stopped a motor vehicle the accused was driving. They noticed a smell of alcohol and made an approved screening device demand.  A ‘fail” was registered.   The accused was arrested and advised of his right to contact counsel. The accused sought to use his cellular telephone to immediately call a lawyer.  The police declined to allow him to do so until he was taken to the police station. 

The New Brunswick Court of Appeal concluded that a breach of section 10(b) of the Charter occurred (at paragraph 19):

…the case law could not be clearer on the issue of when an accused is entitled to avail himself or herself of his or her right to counsel. The right applies immediately following arrest and reading of constitutional rights, insofar as the circumstances of the case allow. No evidence may be obtained before the right is exercised. The Supreme Court of Canada clearly stated in R. v. Manninen, [1987] 1 S.C.R. 1233, [1987] S.C.J. No. 41 (QL), that the right requires the police officer to allow the accused to use any available telephone. In this case, Mr. Landry was entitled to use his cell phone to try to contact his lawyer, but the police officer refused to let him do so. 

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.

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. No.
DEFENSE ATTORNEY: One question.
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.

-CM

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.

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.

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.”