Most judges will go through their entire career never having even considered having an anonymous jury. But if you are confronted with a request there are implications to granting the request. Leonardo Mangat (Cornell University, Law School, Cornell University, Law School, Students) has posted A Jury of Your [Redacted]: The Rise and Implications of Anonymous Juries (Cornell Law Review, Vol. 103, No. 6, 2018) on SSRN. Here is the abstract:

Since their relatively recent beginnings in 1977, anonymous juries have been used across a litany of cases: organized crime, terrorism, murder, sports scandals, police killings, and even political corruption. And their use is on the rise. An anonymous jury is a type of jury that a court may empanel in a criminal trial; if one is used, then information that might otherwise identify jurors is withheld from the parties, the public, or some combination thereof, for varying lengths of time.

Though not without its benefits, anonymous juries raise questions regarding a defendant’s presumption of innocence, the public’s right to an open trial, the broad discretion afforded to judges, and the impacts of anonymity on juror decisionmaking.

In fact, one mock jury experiment found that anonymous jurors returned approximately 15% more guilty verdicts than their non-anonymous counterparts. The anonymous jury is unquestionably a potent tool that affords a court great flexibility to meet the exigencies of a trial head on. But its extraordinary characteristics counsel care in its empanelment. By adopting the Seventh Circuit’s approach to anonymous juries and requiring reasoned verdicts when they are used, anonymous juries may yet become an “inspired, trusted, and effective” instrument of justice.

A great many of the confirmed innocent defendant cases occurred because of faulty forensic science. And so if you want to be a great trail court judge understanding forensic evidence is essential.  Jennifer Mnookin (University of California, Los Angeles (UCLA) – School of Law) has posted The Uncertain Future of Forensic Science (147 Daedalus 99 (Fall 2018)) on SSRN. Here is the abstract:

Forensic science is at a crossroads. In the last two decades, often-used forms of pattern evidence, such as fingerprint, tool mark, and bite mark identification, have faced significant criticism for lacking adequate scientific validation or proven reliability. Is this the beginning of a sea change, signaling the rise of a science-based, empirically grounded approach to these forms of evidence, both in the courtroom and in the crime laboratory? Or has the increased attention produced Band-Aids rather than meaningful and lasting cures? This essay argues that the current state of forensic science reform is both “half empty” and “half full.” Looking first at bite mark evidence, then at modifications in the language used by forensic scientists for their courtroom testimony, and, finally, at the creation and the elimination of the National Commission on Forensic Science, this essay argues that we have thus far seen modest and meaningful – but far from adequate or transformative – reform. Our best hope for sustained, substantial changes necessary for improving forensic science evidence within our system of justice requires the creation of another national commission or other institutional body, made up of both research scientists and other institutional stakeholders, and situated as to prevent “capture” by either forensic practitioners or advocates within our adversarial system.

There are few law professors as interesting as Doug Berman. From his Sentencing Law & Policy Blog, “ Iowa Supreme Court dodges due process challenges to use of risk-assessment tools at sentencing:”

A helpful reader made sure I did not miss a trio of rulings handed down late last week by the Iowa Supreme Court which all raised issues concerning the permissibility of courts using risk-assessment tools at sentencing. The rulings came in Iowa v. Gordon, Iowa v. Guise and Iowa v. Buesing, and in each instance the court decided that a constitutional challenges to the use of Iowa Risk Revised risk assessment tool (IRR) at sentencing was not properly raised and preserved at sentencing.  The Gordon case addresses this point most fully, and here is how the other cases describe the Gordon ruling:

Today, we filed an opinion in State v. Gordon, ____ N.W.2d ____ (Iowa 2018).  In Gordon, we held a defendant could not raise this due process argument for the first time on appeal when the defendant did not bring the issue to the district court at the time of sentencing.  Id. at ___. Furthermore, we held we could not address this due process issue under the rubric of ineffective assistance of counsel because the record is insufficient to reach this claim. Id.

Though the Gordon case has the fullest discussion of the merits in this trio of decisions, the Guise case is the best read  because of the Justice Appel’s extended opinion “concurring specially.” This concurrence talks through various concerns about the use of risk-assessment instruments at sentencing (with lots of cites to lots of academic scholarship), and here are a few notable passages:

Guise’s argument that due process requires accurate information about risk assessments beyond a mere conclusion, as demonstrated by Malenchik and Loomis, is certainly not frivolous. Certainly the shiny legal penny of a new risk assessment tool should be carefully scrutinized by the courts….  The relentless and potentially corrosive drive for efficiency and certainty in a resource-scarce public sector should not drive courts to use risk assessments in an unjustified “off label” manner or in a fashion that otherwise lacks meaningful empirical support to drive sentencing.

Even if the emerging risk assessment tools are found to have a place in sentencing as a “relevant” factor, our law does not allow mere conclusions to be mounted on spikes and paraded around our courtrooms without statistical context….

We do not know whether the IRR was normed with an appropriate Iowa population.  We do not know whether the tool has been renormed and monitored.  We do not know anything, really, about the database, assuming there is a database, behind the IRR.

I am also concerned about process issues lurking behind this case.  Ordinarily, the PSI report is made available to the defendant only a few days before sentencing…. But a few days’ notice is not enough time for a defendant to mount a serious challenge to the underlying reliability of the risk assessment evidence as being so unreliable as to be hocus pocus. A full-court press on the question of reliability of the risk assessment would likely require the hiring of a highly qualified expert.  Even if the defendant does not wish to mount a full-blown attack on the statistical model and instead wishes to make a more limited point — say, for instance, the disproportionate impact of use of housing, employment, and level of educational attainment of people of color — the defense will not be able to develop the attack in a few days, particularly when the defendant is indigent and will require court approval prior to the hiring of an expert to challenge the statistical information….

In conclusion, I want to make clear that I do not categorically reject any use of risk assessment tools in the sentencing process.  I recognize that the PEW Center on the States, the National Institute of Corrections, the National Center for State Courts, and the American Law Institute have all expressed interest in evidence-based sentencing.  See J.C. Oleson, Risk in Sentencing: Constitutionally Suspect Variables and Evidence-Based Sentencing, 64 SMU L. Rev. 1329, 1343, 1394 (2011).  I also recognize that sentencing based solely on “intuition” or “gut” runs the risk of allowing implied bias a free reign and can be lawless in nature.  See Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1, 5 (2007) (urging the justice system to take steps to limit the impact of overreliance on intuition).  Further, the “intuition” or “gut” of a judge who was a former prosecutor may well differ from the “intuition” or “gut” of a public defender.  Undisciplined intuitive sentencing runs the risk of telling us more about the judge than the person being sentenced.

A fully-developed record may well show that risk and needs assessment tools that assemble variables in a statistically valid way may be of some assistance as a check on unregulated sentencing discretion and may promote deeper thinking by discretionary decision-makers into the sentencing process.  In short, it is possible that when a full record is developed, properly designed and utilized risk assessment tools may enhance and inform the exercise of judicial discretion.  In addition to the binary question of whether a risk assessment may or may not be used in sentencing, however, more nuanced additional questions must be asked regarding how any such tool may be used. In light of the procedural posture of this case and the companion cases, these questions must await further legal developments.

In California, the newly-formed Debt Free Justice California coalition achieved its first big win: Alameda County’s Board of Supervisors voted to abolish all of the county’s criminal justice fees, including fees for probation, public defenders, and the sheriff’s work alternative program. This does not eliminate fees imposed by the state of California, but discretionary (local) fees are still significant; as a recent report from the East Bay Community Law Center notes, the average adult on probation in Alameda County could be assessed over $6,000 in probation fees alone.

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In early December, Chicago City Clerk Anna Valencia announced the creation of the Chicago Fines, Fees, & Access Collaborative, composed of Chicago City departments, elected officials, community organizations, and academic and advocacy organizations – including FFJC. The Collaborative will review fines, fees, & collections practices and will advance recommendations for reform, following the model of San Francisco’s Financial Justice Project. You can read more via ProPublica.

See this abstract from a Yale Law School Public Law Research Paper:

In the last decades, growing numbers of people have sought to use courts, government budgets have declined, new technologies have emerged, arrest and detention rates have risen, and arguments have been leveled that private resolutions are preferable to public adjudication. Lawsuits challenge the legality of fee structures, money bail, and the imposition of fines. States have chartered task forces to propose changes, and new research has identified the effects of the current system on low-income communities and on people of color. The costs imposed through fees, surcharges, fines, and bail affect the ability of plaintiffs and defendants to seek justice and to be treated justly.

This volume, prepared for the 21st Annual Arthur Liman Center Colloquium, explores the mechanisms for financing court systems and the economic challenges faced by judiciaries and by litigants. We address how constitutional democracies can meet their obligations to make justice accessible to disputants and to make fair treatment visible to the public. Our goals are to understand the dimensions of the problems, the inter-relationships among civil, criminal, and administrative processes, and the opportunities for generating the political will to bring about reform.

In the late 1800s and early 1900s there was a “science” which supporters claimed would revolutionize how the criminal justice system would approach deciding what to do: phrenology. The claim was that, by having your head examined by a phrenologist who would look at the shape and size of the cranium, there would be a reliable  indication of character and mental abilities. It is hard to find a phrenologist these days. One of the last ones was in Minneapolis. But his instrument was in a Museum of Quackery. Now there’s a thing called “vocal risk assessment” which purports to be able to determine a person’s culpability—level of risk, they call it—by the sound of their voice.

From The Intercept:

Is it possible to tell whether someone is a criminal just from looking at their face or listening to the sound of their voice? The idea may seem ludicrous, like something out of science fiction — Big Brother in “1984” detects any unconscious look “that carried with it the suggestion of abnormality” — and yet, some companies have recently begun to answer this question in the affirmative. AC Global Risk, a startup founded in 2016, claims to be able to determine your level of “risk” as an employee or an asylum-seeker based not on what you say, but how you say it.

The California-based company offers an automated screening system known as a Remote Risk Assessment, or RRA. Here’s how it works: Clients of AC Global Risk help develop automated, yes-or-no interview questions. The group of people selected for a given screening then answer these simple questions in their native language during a 10-minute interview that can be conducted over the phone. The RRA then measures the characteristics of their voice to produce an evaluation report that scores each individual on a spectrum from low to high risk. CEO Alex Martin has said that the company’s proprietary risk analysis can “forever change for the better how human risk is measured.”

Recently, in R. v. Boudreault, 2018 SCC 58, the Supreme Court of Canada ruled that “the mandatory surcharge amounts to, and operates as, a constitutionally impermissible form of cruel and unusual punishment. Consequently, s. 737 of the Code violates s. 12 of the Charter and cannot be saved under s. 1”.  The Supreme Court declared section 737 of the Criminal Code “to be of no force and effect immediately, pursuant to s. 52(1) of the Constitution Act, 1982” (at paragraph 98).

Canada’s top court has ruled in favor of denying accreditation to a Christian law school that banned students from having gay sex.

Friday’s ruling against Trinity Western University in British Columbia (BC) was closely watched by both religious freedom and gay rights advocates.

The university made students promise not to have extra-marital or gay sex.

The Supreme Court found that protecting LGBT students from discrimination trumped religious freedom.

The evangelical university finalized its proposal for a law school in 2012 and applied for accreditation in every province so that its students could be called to the bar anywhere in Canada.

Ontario, British Columbia and Nova Scotia law societies denied the school accreditation, on the grounds that it required all students to sign a covenant binding them to a code of conduct which banned sex outside the confines of heterosexual marriage

Robert M. Bloom (Boston College Law School) has posted What Jurors Should Know about Informants: The Need for Expert Testimony (Michigan State Law Review, Forthcoming) on SSRN. Here is the abstract:

With the advent of DNA exonerations, the data would indicate that many individuals have been wrongly convicted. In looking at the causes of the exonerations, nearly 20% have involved testimony by accomplices and jailhouse informants. The questionable credibility of these individuals has long been recognized by courts and legislatures. Reforms in this area include, enhanced jury instructions, pre-trial credibility hearings, and corroboration before the testimony can be introduced.

This article argues the efficacy of expert testimony to further assist jurors in measuring the credibility of these witnesses. Although the use of experts has largely been disfavored by courts, there has been a gradual movement to use experts for eyewitness identifications, the major cause of exonerations. The article proposes a similar movement for informant testimony.

BOSTON (AP) — Dozens of retired state and federal judges called Wednesday on U.S. immigration officials to stop making arrests at courthouses of people suspected of being in the country illegally, saying immigrants should be free to visit halls of justice without fearing they will be detained.

Nearly 70 former judges from 23 states — including federal judges and state supreme court justices — said in a letter sent to Acting U.S. Immigration and Customs Enforcement Director Ronald Vitiello that courthouse arrests are disrupting the criminal justice system.

“I just can’t imagine that we are closing our courtrooms to people who have a right to be there. And you really are closing them if you instill fear in people so they cannot come near a courtroom,” said Fernande R.V. Duffly, who was born in Indonesia to Dutch and Chinese parents and served as an associate justice on Massachusetts’ highest court until 2016.

The judges are urging Vitiello to add courthouses to the list of so-called “sensitive locations” that are generally free from immigration enforcement, like schools and places of worship. They say that only “unequivocal guarantees and protections will restore the public’s confidence that it can safely pursue justice in our nation’s courts.”

The Brennan Center for Justice at New York University Law School helped organize the letter, whose signers include judges appointed by both Democratic and Republican governors.

Immigration officials have said communities are forcing their hand by refusing to transfer immigrants in local prisons and jails to ICE custody. They also argue that courthouse arrests are safer for agents because people have to go through metal detectors when they enter courthouses.

ICE says it’s going into courthouses only for certain targets, like gang members and public safety threats and immigrants who have been previously deported or ordered to leave.

“Arrests in courthouses are a routine practice for law enforcement agencies throughout the country. Because many jurisdictions no longer allow ICE to take custody of aliens inside of jails, courthouses are the next safest option,” ICE Spokeswoman Liz Johnson said in a statement.”