The federal judiciary announced the proposal to get rid of the ancient documents exception on and is accepting public comments through February. U.S. District Judge William Sessions III of Vermont, chairman of the advisory committee on evidence rules, said in a report that the foundation of the exception “has always been questionable.”

“A document does not become reliable just because it is old; and a document does not magically become reliable enough to escape the rule against hearsay on the day it turns 20,” Sessions wrote. “The committee concluded that the exception has been tolerated because it has been used so infrequently, and usually because there is no other evidence on point.”

Liesa Richter, a professor at the University of Oklahoma College of Law who teaches evidence, applauded the proposal.

“Age is no guarantee of reliability,” Richter said. “Now that we have this flood of electronically stored information that never goes away—it doesn’t disappear ever—[there are] just so many factual assertions out there electronically that will be available for savvy lawyers to dig up and admit. I think it is a real problem and a real concern.”

Read more here.

The abundance of electronically stored documents is spurring a committee of the U.S. Judicial Conference to propose abolishing the “ancient documents” rule.

The rule—803(16) of the Federal Rules of Evidence—allows the admission of documents that would usually be banned as hearsay if the documents are at least 20 years old and appear authentic. The National Law Journal (sub. req.) has a story on the proposal to scrap the rule.

A committee report (PDF) said the rule “has always been questionable” but it has been tolerated  because it is infrequently used,

The abundance of electronic documents creates a strong likelihood that the ancient documents exception will be used much more frequently in coming years, according to the report by U.S. District Judge William Sessions III of Vermont, who chairs the advisory committee on evidence rules.

“Many forms of [electronically stored evidence] have just become or are about to become more than 20 years old, and there is a real risk that substantial amounts of unreliable ESI will be stockpiled and subject to essentially automatic admissibility under the existing exception,” the report said.

The ancient documents exception was originally intended to cover property issues to ease proof of title, the report said. But the premise for the rule was flawed. “A document does not magically become reliable enough to escape the rule against hearsay on the day it turns 20,” the report said.

Sessions told the National Law Journal that the residual exception to the hearsay rule could still be invoked in some cases where the ancient documents rule would apply. Codified in Rule 807, the residual exception can be used to admit hearsay when it is more probative than other reasonably available evidence.

Public comments on the proposal can be submitted until Feb. 16, according to the U.S. courts website.

Joseph L. Gastwirth (George Washington University – Columbian College of Arts and Sciences) has posted Statistical Testing of Peremptory Challenge Data for Possible Discrimination: Application to Foster v. Chatman on SSRN.

Here is the abstract:

Ensuring that minority groups are treated fairly in the legal process is an important concern. The Castaneda v. Partida and Duren v. Missouri decisions enable courts to monitor the demographic composition of the selection of potential jurors using a variety of statistical techniques. This paper shows that Fisher’s exact test is appropriate for examining statistical data on peremptory challenges when Batson issues are raised. In addition to being a well-established method, it evaluates the challenges made by each party assuming the other side is fair. Thus, it is consistent with the Supreme Court’s statement in Miller-El that the defendant’s pattern of challenges is not relevant in determining whether the prosecution’s challenges were fair. Although one has the entire population of potential jurors and the number of peremptory challenges, which are regarded a sample from the venire, both the population and the sample are of small size. This limits the power of the test to detect a system in which the odds a minority member is challenged are two or three times those of a majority member. When data is available for similar or related trials, an appropriate method for combining the Fisher tests for each trial is noted. In every case where the Supreme Court found discrimination in peremptory challenges and the data is reported, even though the power of Fisher’s exact test is low, it found a statistically significant difference in the proportions of minority members of the venire and majority members removed. It also finds a statistically significant excess of African-Americans were challenged by the prosecutor in Foster. In a case where the Court did not find bias in peremptory challenges the test did not have sufficient power to detect a substantial disparity, so the Court properly did not give the statistics much weight.

Alabama Chief Justice Roy Moore gets a lot of media attention.  He has forcefully opposed same sex marriage, and earlier in his career was removed from office due to his efforts to place the Ten Commandments in the Courthouse.  Is he a rightwing demagogue as some portray him as?  Perhaps he is more complex than the stereotype.  Chief Justice Moore says the case of a 76-year-man sentenced to life without parole for a drug offense shows the need to change sentencing laws.

In his opinion, Chief Justice wrote:

Moore issued a special writing Friday as the Supreme Court refused to overturn the case of Lee Carroll Brooker. “I believe Brooker’s sentence is excessive and unjustified,” Moore wrote.

Brooker lived with his son in Houston County, and court documents show police found a marijuana-growing operation there during a search in 2013. The elderly man was convicted of drug trafficking last year, and a judge sentenced him to life without parole because of past robbery convictions in Florida. His son was also convicted. Moore writes that the life-without-parole sentence for a non-violent drug offense shows “grave flaws” in Alabama’s sentencing system.

“A trial court should have the discretion to impose a less severe sentence than life imprisonment without the possibility of parole,” Moore added. “I urge the legislature to revisit that statutory sentencing scheme to determine whether it serves an appropriate purpose.”

The full opinion by Chief Justice Moore is available at this link.

Tonja Jacobi (Northwestern University – School of Law) has posted Miranda 2.0 on SSRN.

Here is the abstract:

Fifty years after Miranda v. Arizona, significant numbers of innocent suspects are falsely confessing to crimes while subject to police custodial interrogation. Critics on the left and right have proposed reforms to Miranda, but few such proposals are appropriately targeted to the problem of false confessions. Using rigorous psychological evidence of the causes of false confessions, this article analyzes the range of proposals and develops a realistic set of reforms directed specifically at this foundational challenge to the justice system. Miranda 2.0 is long overdue; it should require: warning suspects how long they can be interrogated for; delivering the warnings via a non-police intermediary, preferably a pre-approved audio-visual recording; recording all interrogations; varying the strength of warnings according to characteristics that make suspects differently susceptible; and reforming and simplifying the rules of waiver. This article establishes why each of these proposals most effectively combats the problem of false confessions and how they can be realistically implemented, without overly burdening police efficiency and efficacy.

In the nomenclature of the American Judges Association, we use the term, “procedural fairness.” Academics sometimes use the term “procedural deterrence.”  There is a very interesting, albeit a bit heavy, new study that supports much of what AJA has advocated since the AJA White Paper on Procedural Fairness.

Kristina Murphy, Ben Bradford and  Jonathan Jackson (Griffith University, University of Oxford – Centre for Criminology and London School of Economics & Political Science – Department of Methodology) have posted Motivating Compliance Behavior Among Offenders: Procedural Justice or Deterrence? (Criminal Justice and Behavior, Forthcoming) on SSRN.

Here is the abstract:

Research shows that procedural justice can motivate compliance behavior through the mediating influence of either legitimacy or social identity. Yet few studies examine the relative importance of these two mediators in the same analysis. Using three waves of longitudinal survey data collected from 359 tax offenders we examine: (a) whether procedural justice is important to offenders’ decisions to comply with their future tax obligations over and above fear of sanctions; and (b) whether legitimacy and social identity processes mediate the relationship between procedural justice and compliance. Our results reveal that: (1) legitimacy mediates the effect of procedural justice on compliance; (2) social identity mediates the procedural justice/compliance relationship; (3) identity seems to matter slightly more than perceptions of legitimacy when predicting tax compliance; (4) perceived risk of sanction plays a small but counterproductive role in predicting tax compliance. We conclude that normative concerns dominate taxpayers’ compliance decisions. Our findings have implications for understanding compliance behavior, but also for conceptualizing why and how procedural justice can motivate such behavior.

Benjamin J. Priester (Florida Coastal School of Law) has posted From Jones to Jones: Fifteen Years of Incoherence in the Constitutional Law of Sentencing Factfinding on SSRN.

Here is the abstract:

With tens of thousands of persons sentenced every year in the United States, the contemporary American criminal justice system places undeniable importance upon the constitutional constraints governing the scope of the permissible and impermissible exercises of factfinding authority by sentencing judges in the course of determining the specific punishment to be imposed upon an individual convicted of a criminal offense. Yet for the past fifteen years the United States Supreme Court has failed to provide doctrinal stability and consistency to this crucial area of constitutional law. Even the most recent decisions, such as Alleyne v. United States (2013) regarding mandatory minimum sentencing provisions, have generated only more unpredictability in the doctrine and more disagreements among the justices’ viewpoints. The path to an enduring doctrinal solution is not readily evident, and the Court’s unwillingness to reach consensus leaves the constitutional law of sentencing factfinding trapped in an ongoing cycle of unpredictability and doctrinal incoherence.

Mark W. Bennett (U.S. District Court (Northern District of Iowa)) has posted Reinvigorating and Enhancing Jury Trials Through an Overdue Juror Bill of Rights: WWJW — What Would Jurors Want? — A Federal Trial Judge’s View (Arizona State Law Journal, Vol. 38, Fall 2016 (Forthcoming)) on SSRN.

Here is the abstract:

Juries are deeply enshrined by the U.S. Constitution and firmly embedded in our system of justice. Thus, it is surprising that jurors do not yet have something akin to their own widely adopted bill of rights. Regrettably, this is the result of too many trial judges failing to practice WWWJ — “what would jurors want” — a jury centered approach to judging. The state of Arizona, with its launch in 1993 of the Arizona Jury Project, is the pioneering jurisdiction of a more jury-centered approach. If trial judges embraced WWJW it would engender greater respect for jurors and lead to trial innovations which would significantly enhance the juror experience. These innovations would also increase the fairness of jury trials. Adopting a bill of rights for jurors improves jurors’ positive experiences and feelings about trial by jury as they participate in the purest form of democracy in action. This article proposes five bill of rights that have been proven to achieve these goals. If adopted by courts and practiced by trial judges, jurors across the nation will exit courthouses as our greatest community ambassadors for the Sixth and Seventh Amendment rights to trial by jury. This is an important step to ensuring that vanishing civil jury trials are not, going, going, gone!

Roughly eight months ago the Justice Department announced new curbs on racial profiling. This is a difficult issue, as illustrated by what the Justice Department said when it issued its guidelines.

Race or the other characteristics can still be taken into account, according to the Justice Department policy, if a federal law enforcement officer has “trustworthy information, relevant to the locality or time frame, linking persons possessing that characteristic to a threat to national security, homeland security or intelligence activity.

Maryland became the first state to follow suit, with guidelines aimed at severely restricting law enforcement officers from singling out suspects based on traits including race, ethnicity and sexual orientation.

Attorney General Brian E. Frosh of Maryland issued the rules in a nine-page memorandum in which he condemned profiling of racial minorities by the police, calling it a “deeply unfair” practice.

“Racial profiling continues despite the fact that it is against the law of the United States; it’s against Maryland law,” Mr. Frosh said in a telephone interview shortly after announcing the guidelines at a news conference in the state capital, Annapolis. “We need people to understand that racial profiling is illegal, and it’s bad police work.”

View full story in The New York Times here.

The New York Times has an interesting editorial on marijuana which begins:

Even as support for ending marijuana prohibition is building around the country, Congress and the Obama administration remain far too timid about the need for change.

Last year, residents in Alaska, Oregon and the District of Columbia voted to join Colorado and Washington State in making recreational use of marijuana legal. Later this year, residents of Ohio are expected to vote on a ballot measure that would legalize it. Nevadans will vote on a legalization proposal next year. And Californians could vote on several similar measures next year.

Instead of standing by as change sweeps the country, federal lawmakers should be more actively debating and changing the nation’s absurd marijuana policies, policies that have ruined millions of lives and wasted billions of dollars. Their inaction is putting businesses and individuals in states that have legalized medical and recreational marijuana in dubious legal territory — doing something that is legal in their state but is considered a federal crime.

The editorial can be found here.