Yesterday I posted a primer on risk assessments tools. There are critics of these tools. Are they an aid to judgement that becomes a substitute for judgment? Do they achieve racial and gender equality? Professor Sonia Gipson Rankin of the University of New Mexico School of Law has posted “Technological Tethereds: Potential Impact of Untrustworthy Artificial Intelligence in Criminal Justice Risk Assessment Instruments“, which will appear in the Washington and Lee Law Review.  Here is the abstract:

Abstract
Issues of racial inequality and violence are front and center in today’s society, as are issues surrounding artificial intelligence (AI). This Article, written by a law professor who is also a computer scientist, takes a deep dive into understanding how and why hacked and rogue AI creates unlawful and unfair outcomes, particularly for persons of color.

Black Americans are disproportionally featured in criminal justice, and their stories are obfuscated. The seemingly endless back-to-back murders of George Floyd, Breonna Taylor, and Ahmaud Arbery, and heartbreakingly countless others have finally shaken the United States from its slumbering journey towards intentional criminal justice reform. Myths about Black crime and criminals are embedded in the data collected by AI and do not tell the truth of race and crime. However, the number of Black people harmed by hacked and rogue AI will dwarf all historical records, and the gravity of harm is incomprehensible.

The lack of technical transparency and legal accountability leaves wrongfully convicted defendants without legal remedies if they are unlawfully detained based on a cyberattack, faulty or hacked data, or rogue AI. Scholars and engineers acknowledge that the artificial intelligence that is giving recommendations to law enforcement, prosecutors, judges, and parole boards lacks the common sense of an 18-month-old child. This Article reviews the ways AI is used in the legal system and the courts’ response to this use. It outlines the design schemes of proprietary risk assessment instruments used in the criminal justice system, outlines potential legal theories for victims, and provides recommendations for legal and technical remedies to victims of hacked data in criminal justice risk assessment instruments. It concludes that, with proper oversight, AI can increase fairness in the criminal justice system, but without this oversight, AI-based products will further exacerbate the extinguishment of liberty interests enshrined in the Constitution.

According to anti-lynching advocate Ida B. Wells-Barnett, “The way to right wrongs is to turn the light of truth upon them.” Thus, transparency is vital to safeguarding equity through AI design and must be the first step. The Article seeks ways to provide that transparency, for the benefit of all America, but particularly persons of color who are far more likely to be impacted by AI deficiencies. It also suggests legal reforms that will help plaintiffs recover when AI goes rogue.

More and more courts are using risk assessment tools to assist in making bail and sentencing decisions. What do you need to know about these tools? Cecelia M. Klingele (University of Wisconsin Law School) has posted Making Sense of Risk on SSRN. Here is the abstract: Although actuarial risk prediction tools are widely used in the American criminal justice system, the lawyers, judges, and correctional workers who consult these products in making decisions often misunderstand fundamental aspects of how they work and what information they provide. This article suggests that the best way to ensure risk assessment tools are being used in ways that are just and equitable is to ensure that those who use them better understand three key aspects of what information they do—and do not—reveal. Doing so requires clarifying what risk is being predicted, explaining what risk levels signify, and enumerating how risk-related information is and is not relevant to specific criminal justice decisions.more and more courts are

Thanks to the “tip” from Judge TJ Conley      DALLAS — The jurors appeared on screen from their living rooms, bedrooms and home offices. Juror 11 took notes as a sheriff’s deputy testified about giving a speeding ticket. Juror 18 occasionally looked away as a white cat scampered across her couch.They gathered on a video conference call Tuesday in what Texas court officials said is a national first — a virtual jury trial in a criminal case.“You’re here today for jury duty in a different way,” Judge Nicholas Chu said at the start of the trial. “That’s jury duty by Zoom.”The Travis County misdemeanor traffic case is the latest experiment in how to resume jury proceedings in a criminal justice system that’s been crippled by the coronavirus pandemic. It was greeted by lawyers and legal experts as a low-risk step forward, but one that could imperil defendants’ rights.Nationwide, the virus has put many court cases on indefinite hold and left some defendants in jail longer, possibly exposing them to outbreaks. It has forced judges to hold hearings via video conference and even led the Supreme Court to hold oral arguments by phone for the first time in its history.In Texas, fewer than 10 jury trials have been held since state courts resumed in-person proceedings in June, according to Megan LaVoie, a spokeswoman for the state judicial branch. She said Tuesday’s case was picked as the first criminal jury trial to be held virtually in the U.S. because both sides agreed and it was “ready to go.”The trial of Calli Kornblau, an Austin-area nurse charged with speeding in a construction zone, was broadcast live on YouTube. At some points, there were more than 1,000 people tuned in to hear testimony about traffic rules and the workings of police laser speed readers. For the rest of the story by the Washington Post https://www.washingtonpost.com/health/texas-court-holds-jury-trial-in-traffic-crime-case-over-zoom/2020/08/11/5d0c60a6-dc35-11ea-b4f1-25b762cdbbf4_story.html

The term recognition evidence may seen foreign to some United States judges but we have cameras seemingly everywhere and as a result a lot of recognition evidence. Thanks to Judge Wayne Gorman we now have the Canadian perspective on recognition evidence. R. v. Hudson, 2020 ONCA 507, August, 12, 2020, at paragraphs 28 to 34: Where there is video or photographic evidence capturing the commission of an offence and the identity of the perpetrator is at issue, one way in which the Crown may seek to prove that the accused is, in fact, the perpetrator is by adducing evidence from a witness who is sufficiently familiar with the accused to recognize them and assist the trier of fact in determining whether the accused is the person seen: R. v. Leaney, [1989] 2 S.C.R. 393. In order for such recognition evidence to be relied upon by the trier of fact, two distinct inquiries must first be undertaken. To begin, the trial judge must determine whether the evidence meets the threshold requirements for admissibility. If this test is met, the trier of fact must then assess the evidence to determine its ultimate reliability and the appropriate weight, if any, that can be properly attributed to it. In R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137, this court outlined the test for threshold admissibility of recognition evidence. Blair J.A. labelled the test as the “prior acquaintance/better position” test. The court set out two steps that must first be met before threshold admissibility can be established. The trial judge must determine whether: 1) the witness is sufficiently familiar with the accused to have “some basis” for their identification opinion; and 2) the witness, as a result of their prior acquaintance with the accused, must be in a better position than the trier of fact to identify the perpetrator, in the sense that they have “some advantage that can shed light on the evidence in question”: at paras. 14, 21. The thrust of this inquiry is aimed at determining the level of familiarity of the potential witness with the accused. In assessing this level of familiarity, the trial judge should focus on the nature of the relationship between the potential witness and the accused, including the frequency and intensity of past contact. The fundamental question for the trial judge, is whether the potential witness is sufficiently familiar with the accused such that the witness may be able to provide valuable identifying information about the accused that a trier of fact, with access to only the accused, the video, and photographic evidence during trial, will not be able to or unlikely to ascertain for him or herself. In answering this question, the trial judge should base his or her determination primarily on the evidence of the nature of the relationship, including the nature of past contact, as opposed to a potential witness’ anticipated testimony. While a potential witness’ anticipated testimony may be of assistance in borderline cases, trial judges should be wary of the allure of potential witnesses who, despite having only a general level of familiarity with the accused, purport to be able to offer descriptions capable of identifying them. In other words, a trial judge should generally only permit a potential recognition witness to testify where the judge is satisfied, on a balance of probabilities, that the witness’ relationship with the accused affords him or her a level of familiarity that will enable the witness to provide valuable and otherwise unavailable identifying information. The trial judge is in the best position to determine the “prior acquaintance/better position” test. That determination on the admissibility of recognition evidence is entitled to deference, absent an error in principle or an unreasonable ruling. Where a trial judge finds that the requirements for threshold admissibility have been met, the recognition witness will be permitted to testify. It will then be the role of the trier of fact to assess the witness’ testimony to determine its ultimate reliability and the weight that can be properly attributed to it, if any. In doing so, the trier of fact should consider the following, non-exhaustive list of factors as indicia of reliability: 1) the circumstances of the identification, including whether it was independent or suggested; and 2) the level of detail provided in the description, including the ability of the witness to “point to some unique identifiable feature or idiosyncrasy of the person to be identified”: Berhe, at para. 22. However, the “importance of unique identifiable features varies with how well the witness knows the person he or she identifies” (the better a person knows the accused, the less important the articulation of identifiable features becomes): R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234, at para. 46; 3) the quality of the video or photographic evidence upon which the witness is making their identification (the witness’ testimony will be more reliable as the quality increases); and 4) the circumstantial or direct evidence available that can corroborate or undermine the reliability of the witness’ description. In determining the ultimate reliability of the evidence, the trier of fact must also be cognizant of the fact that, as recognition evidence is a form of identification evidence, the “same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence”: 

As much as I am committed to this blog I am very committed to playing golf with my daughter. But now that the blog has migrated to a new platform it is time to bear down……..and you can help. If you see something of interest, please leave a reply to this post to bring it to my attention. Thanks, Kevin

From The New Yorker, via the NACDL’s News-of-Interest: Before voir dire started, the lawyers on both sides and the judge debated how potential jurors should be questioned on what they knew and thought of the bombing. The appeal hearing revealed that the defense argued for detailed discussions, but the judge opted to ask one general question of every juror: “Can you set aside your opinion and base your decision solely on the evidence that will be presented to you in court?” It was a poorly constructed question, since it suggested one correct answer. One potential juror, a psychologist, responded, “I don’t know that the brain works that way.” She said that it would be difficult for her to surrender her principled opposition to the death penalty, “because it’s not based on something I’ve heard in the media; it’s based on my personal beliefs. It’s even harder to set aside because it’s one of my lifelong beliefs.” She, too, was disqualified.

Shortly after I was appointed a judge in 1984, I was in Washington DC visiting a brother. We were walking along and came upon a protest in front of the South African embassy against that country’s apartheid policies. I was really tempted to join but felt that as a newly appointed judge discretion might be the better part of valor. To this day I occasionally think of that moment and whether I made the right moral decision. And then of course there is the judicial ethics question. My guess (which could be wrong) is that for Canadian judges it is easy. No going out and joining protests. There probably are states where a judge could get in ethical trouble. The answer about where to draw the line isn’t always easy.

From the California Courts Newsroom

July 22, 2020 | Merrill Balassone

A California Supreme Court committee today published guidance for judges who want to attend public demonstrations and rallies, citing a slate of ethical issues for judges to consider before participating.

The opinion, issued by the Supreme Court Committee on Judicial Ethics Opinions (CJEO), said judges may feel a moral obligation to support causes of racial justice and equality in their communities by participating in public demonstrations and rallies.

At the same time, judges have a duty to promote the public’s confidence in judicial impartiality.

CJEO Formal Opinion 2020-014 concludes a judge’s participation in a public demonstration or rally is not prohibited in all circumstances and lists the following restrictions:

• Judges cannot attend demonstrations or rallies if their presence might undermine the public’s confidence in the judiciary;
• Judges cannot attend such events that relate to a pending case, or to an issue likely to come before the courts;
• Judges cannot participate if likely to violate a law, for example violating a curfew.
• Judges cannot create the appearance of speaking on behalf of, or lending the prestige of office to, a political candidate or organization, or allow their participation to interfere with the proper performance of their judicial duties.
• Judges must remain vigilant and should be prepared to leave if staying at the demonstration or rally might result in a violation of their ethical duties or interfere with judicial obligations.

“Judges who have devoted themselves to the cause of justice from the bench may feel compelled to show their support for racial justice and equality by attending or speaking at demonstrations or rallies, often just outside of the courtroom doors. The committee wants to provide bench officers with a practical framework, firmly grounded in the canons, for what they can and cannot do ethically either by going to a demonstration or rally or by making a public statement about these important matters,” said Judge Erica Yew, a member of the committee who currently serves on the Santa Clara County Superior Court.

Because of the ethical issues that might arise by attending and participating in a public demonstration or rally, the opinion suggests judicial officers instead consider writing a public statement about matters relating to racial justice and equality, as California Chief Justice Tani G. Cantil-Sakauye (link) and the Supreme Court of California (link) have done. Since judges can maintain control of the substance and tone, a statement that addresses issues of racial justice and equality may present fewer ethical risks than participating in a public demonstration or rally on those same issues.

Confronting Systemic Racism in Trial Courts

1. This Thursday  Jul 23, 2020 2:00 PM – 3:15 PM CDT

Show in My Time Zone

Our nation is hurting. Outcries for racial equality are heard and seen around the globe. Institutional racism and discrimination exist throughout our society, including in justice systems and trial courts. Systemic inequalities and injustices can be manifested either directly or indirectly. All are harmful and unfair. Understanding and identifying systemic racism is an essential first step in eliminating these persistent inequalities and injustices. By identifying these norms and practices, PJs, CEOs, and their leadership teams can begin the process of reform. Equal justice under law requires it. The dignity of the individual and the legal, civil, and moral equality of all people demands it, whatever the color of someone’s skin. This 75-minute webinar is the first in a two-part series. It will raise awareness about these issues in trial courts, increase understanding of research that can serve as a framework for reform, and begin a dialogue for change. What is systemic racism and where might it exist in trial courts? Why have we failed to date? How do we identify problem areas? What are courts doing now to mitigate its affects? What is the role of PJs and CEOs in beginning the dialogue and preparing for court reform? The second webinar on August 20 will offer additional ideas and practical tools to help court leaders act and plan next steps. It will provide PJs, CEOs, and court leadership teams with ideas for critically assessing the court system, listening to and involving court users, justice partners, and stakeholders, and implementing court reform. Whether you are a NAPCO member or not, you are invited to join this timely online conversation. It is the second in a monthly series of complementary webinars regarding trial court leadership and COVID-19. To register https://register.gotowebinar.com/register/6617713505766097935

“Excited delirium” is and always has been a “junk science” diagnosis.

Which is why police should stop citing it and judges should stop relying on it.

The Washington Post

TMP Context: How it’s already played out in the George Floyd case. The Marshall Project.

From How Appealing:

“Jury selection via Zoom: First Miami-Dade case is a glimpse of court in the coronavirus era.” Haley Lerner of The Miami Herald has this report.