From The Sentencing Law & Policy blog. 

 What might be the positive changes that come as a result of zoom hearings and the other responses that courts have had to the pandemic? Professor Matt Bender has authored this timely new paper now on SSRN Here is its abstract:A defendant’s fundamental right to a public trial, and the press and community’s separate right to watch court have been threatened by the shift to virtual hearings. These independent constitutional rights can be in harmony in some cases and clash in others.  They cannot be incompatible.  Public interest in criminal justice transparency is increasingly crystallized, but courts have often become more opaque, which jeopardizes First and Sixth Amendment rights.This paper addresses the conflict and confronts a key question: how can we be assured that remote and virtual hearings like Zoom arraignments or trials guarantee the same rights as traditional court hearings?  Instead of rejecting virtual criminal hearings outright, new proposals are offered for how virtual courtrooms can safeguard constitutional rights.  The prevailing belief that criminal defendants should reject virtual trials is questioned.  Virtual trials may lead to better outcomes for defendants than traditional trials, specifically during the ongoing pandemic.  Beyond preserving rights in a virtual courtroom, the ways technology can improve the criminal justice system are explored.Through an analysis of existing indigent defense and First Amendment scholarship, the myth that traditional court decorum should trump open court and virtual hearings is addressed.  Judicial legitimacy and transparency may benefit when criminal cases are accessible on virtual platforms or livestreamed.  Transparency can help safeguard defendants’s rights and improve indigent clients’s representation and outcomes.  Instead of disrupting the courtroom — whether a hearing is virtual or traditional — convenient public access helps a community learn more about the criminal justice system and evaluate cases, judges, and attorneys.These proposals have significant implications for courts and clients by providing a framework for virtual litigation, and leveraging technology for a more equitable criminal justice system.  Livestreams and virtual, remote hearings can improve the right of representation for indigent defendants by increasing access to quality counsel, reducing costs, creating a more competitive legal market, and expanding a client’s choice of attorneys.

“Policing Procedural Error in the Lower Criminal Courts”

is the title of this notable new article available via SSRN authored by Justin Murray. A pretty good argument can be made that appellate courts have overdone their reliance on harmless error. Too often the only word remembered from appellate opinions is harmless. As a result the errors keep repeating themselves. Here is the abstract of Professor Murray’s piece:

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.

By Evidence ProfBlogger 

Similar to its federal counterpart, Idaho Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

The first part of this “present sense impression” exception is easy enough. If I tell my friend, “My stomach hurts” while my stomach hurts, my statement is a present sense impression because I am describing/explaining a condition while I am perceiving it. Similarly, if I say to my friend, “Hey, that’s Nancy” while I see Nancy crossing the street, my statement is a present sense impression because I am describing/explaining an event while I am perceiving it. But what if I told my friend, “My stomach hurt x minutes ago” or “I saw Nancy crossing the street x minutes ago.” How many minutes can pass before my statement is no longer made immediately after I perceived the event or condition?

Previously, I’ve noted that I’ve seen courts admit present sense impressions made up to 23 minutes after perceiving an event or condition. See United States v. Blakey, 607 F.2d 779 (7th Cir.1979). This would be consistent with the recent opinion of the Supreme Court of Idaho in Cazier Revocable Trust v. Cazier, 2020 WL 3989094  (Idaho 2020). In Cazier, a party sought to introduce a February 21, 2019 affidavit about phone calls that occurred on September 18, 2018 and October 11, 2018.

The Supreme Court of Idaho held that the affidavit clearly was not a present sense impression because 

time lapses as “slight” as forty-five minutes have been considered too long to invoke the protection of I.R.E. 803(1). See State v. Woodbury, 127 Idaho 757, 762, 905 P.2d 1066, 1071 (Ct. App. 1995) (Walters, J., concurring) (citing U.S. v. Cruz, 765 F.2d 1020, 1024 (11th Cir. 1985)) (“Testimony in this case indicated that Hansen’s statement to Officer Knight was made about forty-five minutes after the attack. This time span does not qualify as ‘immediately’ after the event.”).

By Evidence ProfBlogger 

Federal Rule of Evidence 1002, often called the Best Evidence Rule, states that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

But, as was the case in United States v. Delorme, 964 F.3d 678 (8th Cir. 2020), the Best Evidence Rule often doesn’t require the best evidence.

In Delorme, Calvin Delorme was convicted of aggravated sexual abuse. One piece of evidence used against Delorme at trial was testimony by Bureau of Indian Affairs Special Agent John Rogers who did a recorded interview of Delorme. After he was convicted, Delorme appealed, claiming that the Best Evidence Rule required the State to introduce the recording of his interview into evidence.

The Eighth Circuit disagreed, noting that Agent Rogers had independent personal knowledge of what Delorme said, i.e., his knowledge of what Rogers said was not dependent on the recording. Therefore, the State was not seeking to prove the contents of the recording; instead, they were just having an agent testify to an event that happened to be recorded. Therefore, while the recording would almost certainly better reflect what Delorme said, the Best Evidence Rule did not require its admission.

The American Bar Association passed a resolution calling for the repeal laws that disenfranchise persons based upon criminal conviction.  The full resolution  reads as follows:

RESOLVED, That the American Bar Association urges federal, state, local, territorial, and tribal governments to:

  a.  repeal laws that disenfranchise persons based upon criminal conviction;

  b.  restore voting rights to those currently and formerly incarcerated, including those on probation, parole, or any other community-based correctional program;

  c.  assure that no person convicted of crime is disenfranchised because of nonpayment of a fine, court costs, restitution or other financial obligations imposed as a result of a criminal conviction.

FURTHER RESOLVED, That the American Bar Association amends the Criminal Justice Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons (3d Edition, 2004) as follows:

  Standards 19-2.6 Prohibited collateral sanctions Jurisdictions should not impose the following collateral sanctions: (a) deprivation of the right to vote.

Eric S. Janus (Mitchell Hamline School of Law) is one of the nation’s most thoughtful scholars as well as litigators. He has has posted an interesting piece entitled  Preventing Sexual Violence: Alternatives To Worrying About Recidivism (Marquette Law Review, Vol. 103, No. 3, 2020) on SSRN. Here is the abstract: How can it be that in the era in which almost one million Americans are on sex offender registries — most of whom are publicly stigmatized on websites, banished from their homes, shunned from their jobs, prevented from uniting with their families and traveling internationally, forced into homelessness, all of which increases their risk for suicide, and shames their spouses and children, even if their offenses occurred long in the past — that the #MeToo movement would explode, revealing widespread sexual misconduct against women, by powerful men, protected by iconic institutions? How can we have had three decades of the most aggressive, “spare-no-expense” laws ostensibly designed to prevent sexual violence and, at the same time, observe the widespread failure of law enforcement agencies to take the simple step of analyzing sexual assault kits, as a first step in the investigation of allegations of sexual abuse? How can these phenomena co-exist?

This Article argues that this incongruity is not an ironic coincidence, but rather a flaw that goes to the heart of our contemporary approach to sexual violence prevention.This flaw has, at its core, an almost obsessive focus on recidivistic sexual violence. Understanding this central characteristic will illuminate a framework for an alternative approach to our public policy on sexual violence, one in which the prevention of recidivism plays but a small role in a more comprehensive approach to sexual violence and its place in our culture.

The flaws in the regulatory intervention policies are not an accidental characteristic, but arise from, and in turn support and protect, the very phenomena underlying #MeToo and the SAK revelations: the cultural attitudes, values and practices that allow sexual violence against women to flourish.

Indeed, the thesis is that our aggressive policies are, in a perverse way, designed precisely to protect this aspect of our society — what feminists might call “the patriarchy” — from taking full accountability and responsibility for its role in sexual violence. In this sense, we can say that #MeToo and SAK backlogs persist not in spite of, but in significant measure because of the nature of the aggressive regulatory policies addressed to sexual recidivism

Brandon Draper (University of Houston Law Center) has posted And Justice for None: How COVID-19 is Crippling the Criminal Jury Right (Boston College Law Review Electronic Supplement, 2020) on SSRN. Here is the abstract: The jury trial is meant to be the beacon of the criminal justice system in the United States. Amid the COVID-19 pandemic, access to fair and constitutional jury trials has largely come to a halt. Courts correctly decided to stop all jury trials and other in-person proceedings as the nation learned more about a new and deadly virus. Nevertheless, this decision denied access to this important constitutional right. Additionally, courts employed video conference technology such as Zoom and WebEx platforms to conduct arraignments, general docket appearances, and some pretrial hearings. Overall, this technology has greatly assisted in the continued function of most aspects of the criminal justice system.

Four months into the pandemic, some criminal courts are beginning to consider and test two adaptations of jury trials to attempt to meet the needs of the system:

(1) trials that are both in-person and compliant with social distancing policies; and

(2) trials conducted exclusively via video conference.

This Essay argues that at best, these solutions are grossly unfair to all of those who participate in the criminal justice system. And at worst, they likely violate the Sixth Amendment rights of the accused and create ethical concerns for prosecutors, defense attorneys, judges, and jurors. Despite these legitimate concerns, courts should attempt to resume jury trials that are both in-person and compliant with social distancing policies. Courts may also allow remote trials for defendants who on advice of counsel wish to proceed on that basis. While an imperfect solution, it allows the accused to maintain their Sixth Amendment confrontation right or give a knowing and voluntary waiver, and provides the criminal justice system the best opportunity to mitigate the other issues created to attempt to ensure a fair jury trial.

Jeremy Fogel is the executive director of the Berkeley Judicial Institute at Berkeley Law School. He is a former federal and state court judge and was director of the Federal Judicial Center from 2011 to 2018. He. wrote this commentary recently. The words, “Equal Justice Under Law” are engraved over the main entrance to our Supreme Court, and since the founding of our nation judges and justices have sworn an oath to apply the law without regard to the characteristics or circumstances of people who appear before them. Yet our history is replete with examples of judicial practices to the contrary, such as limiting jury service to white men and refusing to permit or credit equally the testimony of women and non-white witnesses. And, while most such explicit forms of discrimination are behind us, our courts never have been immune to the effects of systemic inequalities in our society. The reaction to the killing of George Floyd by Minneapolis police officer Derek Chauvin, an incident preserved for all to see in a cellphone video, continues to have profound reverberations. In addition to generating nationwide protests and a remarkable shift in public attitudes about race and policing, the killing has called unprecedented attention to disparities within the criminal justice system and the deep lack of trust and confidence in that system among African Americans. One might have expected the courts, which after all adjudicate the cases that arise from that system, to remain above the fray. But earlier this month, several influential state supreme courts, including those of California, Texas and Washington, made formal statements both acknowledging and condemning the persistence and manifestations of systemic racism within their purview. Each of California’s seven justices made a personal pledge to examine and confront the impact of his or her own attitudes and behavior. The Texas Supreme Court emphasized the importance of reaching out proactively to and learning about the concerns of communities of color, and the nine justices of the Washington Supreme Court issued a unanimous statement stressing the importance of understanding and overcoming the effects of implicit bias. Approximately a dozen chief justices of other state supreme courts, representing both geographic and philosophical diversity, made similar statements in their leadership capacity. Critics have argued that these statements inappropriately involve the courts in political controversy and even could be viewed as impermissible comments on pending or impending cases. Some worry that the courts will favor African-American parties going forward as a way of proving that, in fact, they are not influenced by systemic racism. Having served as a trial court judge for 37 years and having taught and designed courses for judges on both ethics and decision-making for much of that time, I believe that these concerns, while not unexpected, are misplaced. An African-American judge whom I have known well for many years tells an instructive story. She was the first African-American judge to serve in her mostly white jurisdiction. As it happened, her courtroom staff—court reporter, bailiff and courtroom clerk—also were African-American. During one of her first criminal calendars, a young white defendant entered the courtroom, looked around, said nothing for several seconds and then asked for a continuance. The judge agreed, and at his next appearance, the defendant returned with an African-American lawyer. Systemic bias is fundamentally different from individual bias. Individuals within an inequitable system can act with the best of intentions and in complete good faith and still not negate or overcome the effects of systemic inequality. The only remarkable fact in my friend’s story is that the only white person in the room—and the person with the least power—was the defendant. The systemic bias illustrated by her example is that, at the time, in virtually every other courtroom, the races of the individuals would have been reversed, and few if any white people would have found the situation unusual. But imagine what an African-American defendant would have seen, thought and felt. Canon 2A of the Code of Conduct applicable to the federal and most state judiciaries provides judges with an express mandate to act in ways “that promote public confidence in the integrity and impartiality of the judiciary.” The courts and justices who have spoken up in response to the killing of George Floyd and its aftermath have made explicit reference to that responsibility. They have pointed out that, while the killing of Mr. Floyd was unusual in that it was filmed in real time, it was anything but an isolated incident. Backed by an abundance of empirical data, they have noted correctly that African Americans as a group receive more punitive treatment at virtually every stage of the criminal justice process, including stops, arrests, pretrial detentions, charging decisions and, if they are convicted, sentencing. They recognize that, while it represents only one part of a larger system, the judiciary has an obligation to look for specific, systemic steps it can take to address these disparities and that only by doing so can it earn and maintain the trust and confidence of all of the people it serves. None of the statements suggests that any judge should—or ethically could—decide any case in a way that is not fully supported by the evidence and the law. Nor does any statement ignore the fact—nor could it—that even disadvantaged individuals have free will and are responsible for the consequences of their actions. Nor do the justices minimize—nor should they—our society’s need for effective law enforcement and the significant, often life-threatening risks that our law enforcement professionals are asked to take. Instead, the authors of the statements have shown courageous leadership in urging all judges, including themselves, to revisit and remain open to revisiting regularly their own worldview and assumptions. By committing to personal and institutional self-examination, and more importantly by following through on that commitment in the months and years ahead, these courts will set down a meaningful marker for all of us as we seek a fairer and more just society

A new Supreme Court podcast, Legal Docket, takes a deep dive into key rulings from the 2019-20 term, starting with Babb v. Wilkie, on age discrimination, and County of Maui v. Hawaii Wildlife Fund, on the Clean Water Act.

Tyler Gillett

Two members of a three judge panel of the US Ninth Circuit Court of Appeals affirmed a lower court ruling that struck down California’s ban on large capacity magazines that hold more than ten rounds of ammunition.

The opinion, by Trump appointee Judge Kenneth Lee, held that the ban struck “at the core of the Second Amendment — the right to armed self-defense.” The court applied a two-prong test to determine whether the ban violated the Second Amendment, first by asking if the law burdened protected conduct, then asking what level of scrutiny applied. The panel looked at data showing half of all magazines in circulation in the United States, some 115 million, are large capacity, and that the standard magazines for popular handguns like the Glock and the Baretta Model 92 all hold more than ten bullets. The court found that firearm magazines are “arms” for Second Amendment purposes, noting that “[w]ithout a magazine, many weapons would be useless, including “quintessential” self-defense weapons like the handgun.”

The panel found that the ban would substantially burden protected conduct and moved on to the second prong, determining that “where a burden on the core right is substantial, strict scrutiny is appropriate.” Under strict scrutiny, a substantial burden is permissible only if it is narrowly tailored to the state’s interest. The panel found that the burden in this case was not narrowly tailored, that instead its scope was “broad and indeterminate” and that there were “no meaningful exceptions for law-abiding citizens,” therefore it “cannot stand.”

Judge Barbara Lynn, a Clinton appointee, wrote a 14-page dissent, in which she disagreed with the majority’s application of strict scrutiny. She would have applied intermediate scrutiny, which requires only a significant, substantial, or important government objective, and a reasonable fit between that objective and the law in question. She found that the ban did not place a substantial burden on gun owners, because while they are prevented from using a certain subset of magazines, the ban does not prevent them from enjoying their Second Amendment rights entirely. She also stated that intermediate scrutiny was the level of scrutiny applied by the court’s sister circuits in similar large-capacity magazine cases, and the bans were upheld by those circuits.

The California Attorney General’s office is reviewing the decision.Bar Exams in the PandemicSUBSCRIBE TO JURISTEmail AddressSubscribe Key: SUBSCRIBEJURIST Digital Scholars