Body cameras and squad videos have the potential to change a lot of things in the criminal justice system for the better. But there are evidence issues that accompany the technology that judges (and lawyers) ought to be aware of.
Body-worn cameras are sweeping the nation, becoming, along with the badge and gun, standard issue for police officers. These cameras are intended to ensure accountability for abusive officers. But, if history is any guide, the videos they produce will more commonly be used to prosecute civilians than to document their abuse. Further, knowing that the footage will be available as evidence, police officers have an incentive to narrate body camera videos with descriptive oral statements that support a later prosecution. Captured on an official record that exclusively documents the officer’s perspective, these statements (“he just threw something into the bushes,” “your breath smells of alcohol”) have the potential to be convincing evidence. Their admissibility is complicated, however, by conflicting currents in evidence law.
Oral statements made by officers during an arrest, chase, or other police-civilian interaction will typically constitute hearsay if offered as substantive evidence at a later proceeding. Yet the statements will readily qualify for admission under a variety of hearsay exceptions, including, most intriguingly, the little-used present sense impression exception. At the same time, a number of evidence doctrines generally prohibit the use of official out-of-court statements against criminal defendants. This Article unpacks the conflicting doctrines to introduce a complex, but elegant, pathway for courts to analyze the admissibility of police statements captured on body-worn cameras. The result is that the most normatively problematic statements should be excluded under current doctrine, while many other statements will be admissible, aiding fact finders to assess disputed events.
If insurance companies use risk-based assessments to set your auto and life insurance rates, why not use them in court? There are ardent proponents of risk-based assessments in court as well as quite a few agnostics.
In theory, accurate assessments of offender risk can save money, promote efficient allocation of correctional resources, and better protect the public. In pursuit of these goals, some jurisdictions have begun using structured means of assessing relative risk. This article briefly describes modern risk assessment instruments, the reasons why they might be preferred over traditional means of assessing risk, and three principles—the fit, validity and fairness principles—that should govern their use. It then contends that, when limited by these or similar principles, criminal justice dispositions can justifiably be based on assessments of risk, despite concerns about their reliability, consistency and legitimacy. Inaccuracy and disparity is as prevalent in desert-based sentencing as it is in risk-based sentencing. More importantly, desert-based sentencing is not as consistent with, and risk-based sentencing is not as inimical to, autonomy and dignity values as is commonly thought. The overall goal of these arguments is to defend modern risk-based sentencing against abolitionist proposals that could do more harm than good, both to offenders and to a punishment system that, at least in the United States, is obscenely harsh.
There is a lot of discussion in the State Courts about how judges set bail. There are those who passionately argue money bail should be eliminated. There are also skeptics who think that the elimination of cash bail might end with just as many people, or more, held. Pretrial assessments might help. Surely, courage to do what is right might be at the core of any reform effort.
Professor Russell M. Gold (Wake Forest University – School of Law) has posted Jail as Injunction (Georgetown Law Journal, Vol. 107, 2019) on SSRN. Here is the abstract:
Half a million people sit in jail every day in America who have not been convicted of a crime but stand merely accused. Detention can cost defendants their jobs, housing, or even custody of their children; it takes a toll on their families and communities too. Courts simply ignore that serious harm when deciding whether a defendant should lose her liberty because of a mere accusation of wrongdoing. By contrast, unlike the government in criminal cases that can so often obtain the relief that it seeks before trial—incarcerating the defendant—a civil plaintiff faces quite a challenge to get the relief that she seeks before judgment through a preliminary injunction. To do so, a plaintiff must demonstrate irreparable injury, and the court will afford such relief only after balancing the harms that granting or denying would inflict on each side. This disparity between criminal pretrial detention and civil preliminary injunctions is both troubling and enlightening. It is troubling that the law affords more protection to the property interests of civil defendants than the liberty interests of criminal defendants who are purportedly presumed innocent.
But in this historical moment where pretrial detention and bail systems are changing in many jurisdictions, the preliminary injunction comparison offers a valuable lens through which to reconceptualize pretrial detention. A more civil-like approach to pretrial detention would raise the threshold of government interest necessary to justify detaining the accused to something akin to irreparable injury—not some minimal likelihood that the defendant might forget to appear in court or be arrested for jaywalking. As in the civil system, criminal courts should not simply ignore that a defendant may lose her job, housing, or custody of a child. Rather, courts should consider those costs to defendants, their loved ones, and the broader public and detain defendants only when the benefits of detention outweigh those substantial costs. Lastly, courts should require the government to demonstrate likelihood of success on the merits with evidence subject to refutation by the defendant to detain the defendant. Such additional process would increase costs on the front end, but it could lead to lower costs of pretrial detention, post-trial incarceration, and recidivism caused by criminogenic jails and prisons.
Some of you may know about the Fines & Fees Justice Center. My guess is, at least a number of you, may not. Former Judge Lisa Foster is a driving force behind the Center. Lisa is a friend of Judge Mark Kappelhoff. She served on the trial court in California for ten years and then in the Obama Justice Department.
For the Washington Post, FFJC Co-Director Joanna Weiss and Tzedek DC President Ariel Levinson-Waldman write in support of legislation that would end license suspensions for unpaid traffic debt in Washington, D.C. & require the DMV to restore suspended licenses. “Arresting people too poor to pay doesn’t make us any safer and does nothing to get fines and penalties paid. Rather, those arrests make us less safe by destabilizing families and by diverting law enforcement resources from crime.”
Fines and Fees Reform News
This month, California Governor Jerry Brown signed into law a bill that will eliminate prosecution fees and prohibit cities from charging residents the cost of legal services used to prosecute them. This law is a direct result of excellent reporting from Desert Sun reporter Brett Kelman, who published a five-part investigative series about the harms of private prosecution firms hired by municipalities and related attorney’s fees in Coachella and Indio. The third part of that series details a lawsuit filed by plaintiff Ramona Morales, who paid $6,000 in attorney’s fees because of a chicken coop on her property.
Morales was represented by the Institute for Justice, who have created a fantastic video about the lawsuit.
In August, San Francisco’s Superior Court ordered the county to waive a staggering $32 million in fees owed by more than 21,000 residents. One formerly incarcerated man reports that this move will reduce his criminal justice debt from $2,725 to $640. The county projects that it will lose about $1 million annually as a result of this decision, and it will fill in the gap with budgetary allocations. In related news, the Alameda County Board of Supervisors’ Public Protection Committee recommended that the full board approve the elimination of court fees for people who are convicted of crimes. Alameda County eliminated juvenile fines and fees in 2016.
In the early days of 2018’s nationwide prison strike, Texas’ Department of Criminal Justice voted to reduce the cost of prison phone calls from $0.26 per minute to $0.06 per minute. In 2017, the phone system brought in $14.49 million for the crime victims’ fund and $4.49 million for general revenue. In related, less fortunate news, driver’s license suspensions are driving Texans deep into debt. Originally, the automatic license suspension policy was conceived as a funding mechanism for Texan trauma centers, but now many Republican and Democratic lawmakers are saying that this practice creates a “permanent underclass, dividing society by those who can pay the fines and those who can’t.”
In Tennessee, Davidson County District Attorney Glenn Funk announced that he will stop prosecuting driver’s license violations that result from failure to pay fines and fees, such as driving on a suspended license. This is an important example of how prosecutors can work toward reform, and other DAs should follow his lead. Until we stop suspending driver’s licenses for unpaid fines and fees, prosecutors should stop wasting criminal justice resources on crimes of poverty.
In Maricopa County, AZ, Civil Rights Corps is representing plaintiffs who allege that the county attorney’s office pressures defendants in marijuana possession cases to participate in a diversion program that will cost them $950 plus weekly charges for drug and alcohol testing. The lawsuit claims that the county attorney threatened defendants with incarceration and six-figure fines unless they participated in the diversion program. In 2016, the Arizona Republic reported that legalizing marijuana would cost the county attorney’s office millions in diversion fees (about $1.6 million annually).
The Oregon Law Center is representing five plaintiffs who have had their driver’s licenses suspended for years because they can’t afford to pay their spiraling debt from traffic violations. They want a federal judge to order the state to halt license suspensions for traffic fines until the Oregon DMV gives drivers a chance to demonstrate their inability to pay. If a driver can’t pay the fines, they say the state should exempt that motorist from losing a license. The plaintiffs argue the state’s current suspensions violate the due process rights of low-income people and are discriminatory.
According to a new report from the Juvenile Law Center, the families of children charged with crimes can be directly billed or assessed fees to cover the cost of legal representation in all but 10 U.S. states. “Any time you touch the juvenile justice system, you need an attorney, while other costs are only implicated when a child is placed in custody or services,” said staff attorney Nadia Mozaffar.
For the Los Angeles Times, Jeffrey Selbin of the Berkeley Policy Advocacy Clinic — and an FFJC Advisory Board member — argues that California should cease collections for all juvenile detention fees. This piece comes as the LA County Board of Supervisors is expected to vote in September to cancel nearly $90 million in fees imposed on families that have had children in the juvenile detention system. In related news, last month the LAPD floated the “radical solution” of eliminating old bench warrants for homeless people to unburden crowded court dockets and create a way out of the vicious carceral cycle that plagues LA’s homeless population.
As you can see from this edition of the newsletter, there is a lot of activity around the country focusing on reforming when and how fines and fees should be imposed. I am not suggesting that anyone revolt, but as you can see from just this newsletter there is a lot of activity on this topic around the country. Over the years we have seen a huge growth in fines, fees, probation costs, mandatory program cost assessments and surcharges throughout the country. Anatole France once said, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” Each of us needs to decide where to devote our time and what issues to focus on. But the essence of a fair and effective criminal justice system surely is what unites us all. For what it is worth, I think we have a problem with fines and fees in far too many courts, While there may not be any simple solution to this, to paraphrase the folks in recovery, the “first step is to admit you have a problem.”
There are scoundrels who become judges and there are judges who, after taking office, become scoundrels. So reflexively defending every judge who is the subject of impeachment does the judiciary no good. Governing Magazine points out there is a trend that should make people at least nervous. “Attacks on judicial independence are becoming more frequent and more partisan. The current effort to impeach the entire West Virginia Supreme Court, while not unprecedented, is taking place against a backdrop of political attacks against judges elsewhere.
“There’s a kind of a war going on between the legislatures and the courts,” says Chris Bonneau, a political scientist at the University of Pittsburgh. “Absolutely, we’re seeing a new environment.”
The West Virginia House last month voted to impeach all the sitting justices on the state Supreme Court. The state Senate is set to begin its impeachment trial Tuesday. There were legitimate reasons for legislators to go after justices, or at least some of them.
In June, Chief Justice Allen Loughry was charged with 22 criminal counts, including fraud and witness tampering. Two weeks ago, Justice Menis Ketchum pleaded guilty to fraud. The court as a whole has been accused of lavish spending, including purchases of expensive custom-made office furniture. This is also the court that triggered the U.S. Supreme Court to rule in 2009 that a justice should have recused himself from a case involving a coal company after it donated $3 million to his campaign.
“The West Virginia Supreme Court is kind of a battered one,” says Michael Nelson, a political scientist at Penn State University. “It’s a particularly weak court to attack because its credibility has been debated.”
Nonetheless, West Virginia Democrats have accused Republicans of staging a coup by impeaching the entire court. The allegations of criminal impropriety had been known for months, but legislators waited until last month to act — missing a deadline to let voters, rather than the governor, fill any vacancies. (Justice Robin Davis resigned, rather than face an impeachment trial, to give voters a chance to pick her replacement.) Republican Gov. Jim Justice did little to assuage complaints of partisan meddling in the courts by appointing two politicians, state House Speaker Tim Armstead and Congressman Evan Jenkins, to interim posts on the court last week. It’s not unheard of for sitting politicians to be appointed to court seats, but it’s not the common practice.
Judicial impeachments actually were rather common in earlier eras. During the 19th century, for instance, New Hampshire’s legislature made a habit of clearing out the entire state Supreme Court, doing so on at least five occasions.
In the 20th century, impeachments became increasingly rare.In most instances, talk of impeachment has been just that, with legislators stopping short of actually filing resolutions to get rid of jurists.
This Annotated Bibliography directs the reader to selected law review and law journal articles focusing on the impact a defendant’s race and income level have on bail and pretrial release decisions. The works included were published between the years 2000 and 2018 and are listed in chronological order.
This article – a tribute to Professor David Wexler – explores how and why the idea of therapeutic jurisprudence first came to him, traces its early development, and contextualizes it in the changes in modern mental disability law in the 1980s. It then sketches out the core principles of this school of legal thought, and considers its expansion beyond mental disability law, both substantively (as it was applied to other areas of the law, some related to mental disability law, and some totally different), procedurally (considerations of how therapeutic jurisprudence methodologies could restructure all of the legal system, including the role of courts, legislatures, administrative agencies and lawyers), and professionally (as others beyond lawyers began to embrace it). Finally, it speculates as to the future, using as its fulcrum the just-created International Society of Therapeutic Jurisprudence.
There are those who claim judges in high-profile criminal trials almost never change venue to afford defendants fair trial rights even where there is manifest prejudice in media coverage of the underlying crime.
Perhaps they are right.
But in fairness, we live in an age where high profile cases generate media coverage far more widespread that historically happened.
If you sit as a trial judge in criminal cases you spend a fair amount of time ruling on stop and frisk cases. Some police officers and their departments are very aggressive and others less so. Frank Rudy Cooper (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted A Genealogy of Programmatic Stop and Frisk: The Discourse-to-Practice Circuit (University of Miami Law Review, Vol. 73, Forthcoming) on SSRN. Here is the abstract:
President Trump has called for increased use of the recently predominant policing methodology known as programmatic stop and frisk. One of this article’s contributions to the field is its identification of five key components of the practice: (1) administrator-mandated (2) pervasive Terry stops and frisks (3) aimed at crime prevention by means of (4) profiles of suspects that (5) target young racial minority men.
Whereas some scholars see programmatic stop and frisk as solely the product of individual police officer bias, this article argues for understanding how we arrived at any specific police practices by analyzing three levels of social activity. The macro level of analysis is that of broad social discourses, the mecro level involves both criminological policy advocacy and criminal procedure doctrines, and the micro level is where police departments engage in specific practices.
The new methodology exploring the “discourse-to-practice circuit” allows us to conduct a genealogy of how and why programmatic stop and frisk became a predominant practice. At the macro level, the late 1960s discourse calling for law and order linked backlash against civil rights to crime control. Meso level legal discourses—such as the general weakening of Terry stop doctrine and Whren pretext doctrine’s insulation of police officers’ racist motivations—allowed for more aggressive policing. Simultaneously, a meso level backlash version of criminology, exemplified by James Q. Wilson’s call for Fixing Broken Windows, then influenced public policy. At the micro level, police departments increasingly took advantage of the doctrinal weaknesses by adopting the backlash criminologists’ methodologies in the form of programmatic stop and frisk.
In light of that genealogy, this article argues for challenging programmatic stop and frisk with counter-narratives making promoting equality a primary goal of policing. For instance, the discourse supporting Whren pretext doctrine contends that we should refuse to suppress evidence discovered when searches are based on racist motivations in order to avoid second guessing officers’ split-second decisions. This article notes that such pretext searches are at least educated guesses based on a fair probability the particular suspect is involved in crime. However, programmatic stops and frisks are based only on specific and articulable facts, if not mere stereotypes. A macro level counter discourse would thus contend that Whren pretext doctrine should not be extended to programmatic stops and frisks because they are essentially uneducated guesses.
Establishing trust in disaffected communities is a challenge for judges. Whether other states should heed the advice of Arizona or individual judges (outside Arizona) is a decision others need to make.
From Opinion 18-03, released in June, but just posted on Westlaw in the last day or so:
ISSUES
An Arizona court has established a working group to explore the extent to which the needs and concerns of lesbian, gay, bisexual, transgender, and questioning (LGBTQ) youth are being addressed in the child welfare and juvenile justice systems. The working group believes that one barrier to LGBTQ youth seeking services is their reticence to trust those involved in the systems, including attorneys, judges, guardians ad litem, court-appointed special advocates, and probation officers. The working group suggests that trust may be gained by reassuring LGBTQ youth that they are in a safe place and dealing with safe people, which may be facilitated by displaying certain symbols or messages.
A judge inquires whether judicial officers in the juvenile court may wear small rainbow-flag pins (or similar symbols) on their robes and post “safe place” placards on courtroom doors that convey acceptance to LGBTQ youth. In addressing these specific inquiries, the Judicial Ethics Advisory Committee deems it appropriate to discuss more broadly the recurring issue of adornments on judicial robes.
ANSWERS
Judicial robes should be free of adornments.
Courts may display signs stating that harassment, bias, or prejudice on the basis of race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or affiliation is strictly prohibited. Courts and judicial officers should not, however, single out any particular category of citizens in offering such assurances.
DISCUSSION
I. Applicable Code Provisions
Several provisions of the Arizona Code of Judicial Conduct (“Code”) are relevant to the committee’s analysis, including:
“Rule 1.2. Promoting Confidence in the Judiciary
“A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
“Rule 1.3. Avoiding Abuse of the Prestige of Judicial Office
“A judge shall not abuse the prestige of judicial office to advance the personal or economic interest of the judge or others, or allow others to do so.
“Rule 2.3. Bias, Prejudice, and Harassment
“(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.
“(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.
“(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.
“(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.
“Rule 2.4. External Influences on Judicial Conduct
“(A) A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.
“(B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.
“(C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.”
II. Analysis
“An independent, fair and impartial judiciary is indispensable to our system of justice.” Code, Preamble. Judicial officers must “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary,” and they must avoid both impropriety and the appearance of impropriety. Rule 1.2.
A. Judicial Robes
The judicial robe powerfully and unmistakably invokes the prestige of judicial office. Using that prestige to express support for any particular message, organization, cause, or category of citizens necessarily excludes a large universe of equally worthy messages, organizations, causes, and citizens who might feel reassured upon encountering a judge displaying symbols meaningful to them. See Rule 2.4, cmt (“An independent judiciary requires that judges decide cases according to the law and facts, without regard to whether particular laws or litigants are popular or unpopular with the public, the media, government officials, or the judge’s friends or family.”).
In its criminal justice standards, the American Bar Association discusses the symbolism behind the judicial robe, stating:
“The black garb reminds all who look at the judge — and it reminds the judge, too — that justice is the prime concern of the court. It also adds dignity to the courtroom. Indeed, the robe emphasizes the democratic ideal of impartial and equal treatment of all persons who come before the court by reminding the judge and those who view the judge in the courtroom that the judge serves as an agent of justice.”
ABA Standards for Criminal Justice 6-1.4 (3rd ed. 2000).
Another commentator has observed that, by donning unadorned black robes, judges “make a visual promise that they’re leaving personal idiosyncrasies, prejudices and desires outside the courtroom.” Robin Givhan, Trial by Attire: Supreme Court Look Should Go with Everything We Believe In, Washington Post, October 9, 2010.
“The bland robes serve as a visual reminder of the high-minded philosophy underpinning our judicial system: Under the law, everyone is equal. Gender, religion, race and economic class don’t matter ….
“It sends a singularly powerful message: I am here to uphold the law, without prejudice. That message should stand alone. It does not need to be accessorized.”
Research discloses only one published judicial ethics opinion of relevance. See Michigan Judicial Ethics Opinion JI-68. That opinion addressed the propriety of a judge wearing an “AIDS awareness ribbon.” It concluded that judicial officers should not wear symbols on judicial robes that suggest support for or opposition to any political, social, charitable, or civic cause.
Additionally, one state has a rule that specifically requires judges to wear black robes “with no embellishment.” See Florida Rule of Judicial Administration 2.340. In promulgating that rule, the Florida Supreme Court explained that uniformity in judicial attire enhances public trust and confidence and observed that citizens “should not have to question whether equal justice is being dispensed” based on the appearance of a judge’s robe.
Although Arizona has no comparable court rule, the committee reaches the same conclusion under the Code. Promoting confidence in the independence, integrity, and impartiality of the judiciary requires that judicial robes be free of symbols, pins, or messages, instead conveying the singular and uniform message that a judge’s fidelity is to the law and to equal justice for all who come before the court. No matter how worthy the cause suggested by items such as a rainbow pin, domestic violence awareness ribbon, cross, or military veteran’s insignia, the judicial robe should not serve as a platform for conveying messages or for communicating a judge’s personal beliefs or extrajudicial activities.
B. Signs or Symbols in Courthouses
Concerns regarding impartiality and avoiding the appearance of bias likewise control the question about displaying “safe place” signs or symbols in court facilities. Courthouses should be safe venues for everyone, and they should also be perceived in that fashion.
Rule 2.3 prohibits bias, prejudice, and harassment on the basis of race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation. Rule 2.3’s mandate extends to judges, court staff, lawyers, and “others subject to the judge’s direction and control.”
Judges may communicate the judiciary’s commitment to prohibiting bias, prejudice, and harassment by posting signs or placards in courthouses that communicate Rule 2.3’s message. But for the reasons outlined above, signs or placards should not single out a subset of the groups enumerated in Rule 2.3 when offering such assurances.
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