Not a day goes by when there is not an interesting webinar on how courts should deal with the pandemic. If you want to read there is a lot. But there is little in webinars or scholarly work on jurors. Melanie D. Wilson (University of Tennessee College of Law) has posted The Pandemic Juror on SSRN. Here is the abstract: While the deadly and highly contagious COVID-19 virus rages across the country, courts are resuming criminal jury trials. In moving forward, judges reference case backlogs, speedy trial rights, and concern for the rights of the accused. Overlooked in this calculus is the importance of juror safety. The Sixth Amendment guarantees “the right to a speedy and public trial, by an impartial jury.” There is no justice without jurors.

Even before the COVID-19 pandemic, the justice system sometimes took advantage of juror vulnerability, treating jurors callously, if not rudely, during voir dire by asking them intensely personal questions. During the pandemic, courts have intensified this mistreatment of jurors by exposing them to serious health risks – sometimes to decide cases with minor charges. This exploitation of jurors is irresponsible and short-sighted. By endangering jurors, courts are creating serious due process concerns for the accused and eroding public confidence in an already beleaguered system. If jurors are forced to serve on jury duty without adequate protections, verdicts will be suspect, mistrials will prevail, and many citizens who are fearful or susceptible will fail to appear, creating juries less representative of the community.

Concerns about the virus are already resulting in some jurors defying their legal obligation and refusing to appear for service. Recent surveys show that because of COVID-19, three out of four jurors are at least somewhat nervous about attending a trial and that people of color, Democrats, and older Americans are very concerned about spreading and contracting the virus. When jurors are worried and distracted, they may rush to a verdict – any verdict – or fail to appreciate all of the evidence, resulting in wrongful convictions and erroneous acquittals. And, if even one juror tests positive during the trial, a mistrial may be declared to allow trial participants to quarantine. If we are going to require jurors to serve during this dangerous time, we must protect them to protect the criminal justice system itself.

Michael Schmidt has an interesting story in his new book about the scramble to learn what was in John Bolton’s unpublished book during the impeachment of President Trump, Axios reports.Writes Schmidt: “I received a call from a man I had never heard of. He said that several years earlier he had sat next to my father on a train and he had followed my work. The man said that he worked as a private investigator of sorts in the Washington area and he had been trying to figure out what Bolton had written in his book.”He continued: “A friend had told him at a Rotary Club meeting that Bolton was taking sections of his book and sending them out to friends to review and comment on.The friends were then mailing them back to him, and he was throwing them in his trash. Bolton had apparently done this because he did not want to create an electronic record of his correspondences. The man said that he had been scouting Bolton’s wife’s office and their house on the nights he put his trash out. After Bolton moved the trash onto the street, he went through it. … He said Thursday morning was trash pickup day in Bolton’s neighborhood.” In California v. Greenwood, 486 U.S. 35 (1988), the United States Supreme Court held that the warrantless search and seizure of garbage bags left at the curb would violate the Fourth Amendment only if the defendant manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable (how convoluted is that?).Although Justices Brennan and Marshall dissented, that has remained the law (mostly). Justice White, writing for the majority, did say that individual states might decide the issue differently. So perhaps John Bolton might have an expectation of privacy but I don’t know which state he lives in. In 2015, the Minnesota Supreme Court rejected an opportunity to decide that the Minnesota Constitution should afford greater privacy rights. Justice David Lillehaug wrote in his dissent, “Minnesotans have a reasonable expectation of privacy when they put their household waste in opaque bags and do what the government requires: place the bags in closed containers for collection, compaction, and conveyance to a lawful disposal site. I respectfully disagree with the majority that the Minnesota Constitution does not require a search warrant before law enforcement may seize and search such household waste… Since the 1980s, when Oquist and Greenwood were decided, the nature of household waste has changed. This is not your grandfather’s garbage. Vastly more household waste is being recycled and the digital revolution is in full flourish. For good public policy reasons, government encourages and often requires citizens to segregate and set out or deliver for recycling.”So, how would you feel if the local newspaper sent a reporter out to look at your garbage? Sound outlandish? Well, it happened in Portland, Oregon. To see the reaction go here.There is a  cynical view of the United States Supreme Court (and perhaps some state supreme courts), that in order to apply the 4th Amendment, the justices just ask, “Could this happen to me?” Well, it could—someone might just decide after searching John Bolton’s garbage it is time  to go through the justices’ garbage.

With the debate over Supreme Court reform taking center stage in the 2020 election after the passing of Justice Ruth Bader Ginsburg, three members of the House of Representatives on Tuesday will introduce a bill to establish term limits for Supreme Court justices.

Democrats Ro Khanna (Calif.), Don Beyer (Va.) and Joe Kennedy III (Mass.) unveiled the bill, the Supreme Court Term Limits and Regular Appointments Act, on Friday. If passed, the act would institute regular appointments to the Supreme Court every two years, with new justices serving for nonrenewable 18-year terms. After 18 years, appointees would become “senior justices” able to temporarily rejoin the court in the event of an unexpected vacancy. Although the current eight justices would be exempted, the two-year appointment cycle would take effect immediately, without waiting for them to retire.

Gabe Roth of Fix the Court, a nonpartisan organization which has been advocating for term limits and other changes to the court since its founding in 2014, lauded the proposal as a “better way – and one the majority of the country already supports” – to appoint justices to the high court. “Regular appointments can reduce the contentiousness of nominations and result in a bench that’s still independent and countermajoritarian,” Roth said.

The bill is the first attempt to institute term limits via statute, as opposed to constitutional amendment. Article III of the Constitution gives Congress broad authority to regulate the federal judiciary, but it also provides that federal judges will serve during “good behavior.” This phrase is widely read as requiring life tenure, and scholars remain divided over whether Congress can limit that tenure via legislation alone.

Tuesday’s introduction will place the bill squarely in the middle of fervent discussion of Supreme Court reform amid the 2020 presidential race. Republicans appear to be lining upbehind President Donald Trump’s effort to fill Ginsburg’s seat this fall. If that effort succeeds, some Democrats are threatening to support measures to add justices to the bench (known as “court packing”) if they take the Senate and Joe Biden wins the White House in November. Biden has not come out in support or opposition to these measures, limiting his public comments on the court to calls for a moratorium on replacing Ginsburg until after the election.

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. “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).

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.

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.

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.

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. 

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.