The Pennsylvania Supreme Court’s decision succinctly begins:

In this appeal by allowance we address the question of whether a trial court may, in its discretion, permit expert testimony in the area of eyewitness identification, and, in doing so, we reconsider our current decisional law which absolutely bans such expert testimony. For the reasons that follow, we hold that, in Pennsylvania, the admission of expert testimony regarding eyewitness identification is no longer per se impermissible, and join the vast majority of jurisdictions which leave the admissibility of such expert testimony to the discretion of the trial court. Thus, we reverse the order of the Superior Court, and remand the matter to the trial court for reconsideration of such expert testimony, including the possibility of a Frye hearing in light of our decision today.

— Commonwealth of Pennsyvania v. Benjamin Walker, 92 A.3d 766 (Pa. 2014)

The full opinion may be found here (log-in required).

The editorial begins:

It took 13 years for the United States to come to its senses and end Prohibition, 13 years in which people kept drinking, otherwise law-abiding citizens became criminals and crime syndicates arose and flourished. It has been more than 40 years since Congress passed the current ban on marijuana, inflicting great harm on society just to prohibit a substance far less dangerous than alcohol.

The federal government should repeal the ban on marijuana.

We reached that conclusion after a great deal of discussion among the members of The Times’s Editorial Board, inspired by a rapidly growing movement among the states to reform marijuana laws.

There are no perfect answers to people’s legitimate concerns about marijuana use. But neither are there such answers about tobacco or alcohol, and we believe that on every level — health effects, the impact on society and law-and-order issues — the balance falls squarely on the side of national legalization. That will put decisions on whether to allow recreational or medicinal production and use where it belongs — at the state level.

We considered whether it would be best for Washington to hold back while the states continued experimenting with legalizing medicinal uses of marijuana, reducing penalties, or even simply legalizing all use. Nearly three-quarters of the states have done one of these.

But that would leave their citizens vulnerable to the whims of whoever happens to be in the White House and chooses to enforce or not enforce the federal law.

The social costs of the marijuana laws are vast. There were 658,000 arrests for marijuana possession in 2012, according to F.B.I. figures, compared with 256,000 for cocaine, heroin and their derivatives. Even worse, the result is racist, falling disproportionately on young black men, ruining their lives and creating new generations of career criminals.

Here is the full editorial.

The Catholic Diocese of Baton Rouge has issued a statement decrying a decision by the Louisiana Supreme Court that may compel a priest to testify in court about confessions he might have received. The alleged confessions, according to legal documents, were made to the priest by a minor girl regarding possible sexual abuse perpetrated by another church parishioner.

The statement, published Monday (July 7) on the diocese’s website, said forcing such testimony “attacks the seal of confession,” a sacrament that “cuts to the core of the Catholic faith.”

The statement refers to a lawsuit naming the Rev. Jeff Bayhi and the Catholic Diocese of Baton Rouge as defendants and compels Bayhi to testify whether or not there were confessions “and, if so, what the contents of any such confessions were.”

The parents of the girl brought action against the priest and church, alleging the  priest, as a mandatory reporter, had failed to report the abuse allegations  and that church was vicariously liable for the priest’s failure to act. The 19th Judicial District Court, Parish of East Baton Rouge, No. 580066, R. Michael Caldwell, J., denied defendants’ motion to exclude evidence of the girl’s confession with priest. The Court of Appeal reversed order denying motion to exclude evidence and, on its own motion, entered peremptory exception of no cause of action, 135 So.3d 724, 2013 WL 5712245. The parents petitioned for certiorari review.

Kit Kinports (Penn State Law) has posted Probable Cause and Reasonable Suspicion: Totality Tests or Rigid Rules? (University of Pennsylvania Law Review Online, Forthcoming) on SSRN.

Here is the abstract:

This piece argues that the Supreme Court’s April 2014 decision in Navarette v. Calfornia, like last Term’s opinion in Florida v. Harris, deviates from longstanding Supreme Court precedent treating probable cause and reasonable suspicion as totality-of-the-circumstances tests. Instead, these two recent rulings essentially rely on rigid rules to define probable cause and reasonable suspicion. The article criticizes the Court for selectively endorsing bright-line tests that favor the prosecution, and argues that both decisions generate rules that oversimplify and therefore tend to be overinclusive.

They have been the catchphrases of recent years:  “evidence-based sentencing” for judges and “risk assessments” for probation. But, is there a danger that these tools might have unintended consequences?

The WSJ Lawblog reports:

Attorney General Eric Holder warned Friday that a new generation of data-driven criminal justice programs could adversely affect poor and minority groups, saying such efforts need to be studied further before they are used to sentence suspects.

In a speech in Philadelphia to a gathering of the National Association of Criminal Defense Lawyers, Mr. Holder cautioned that while such data tools hold promise, they also pose potential dangers.

“By basing sentencing decisions on static factors and immutable characteristics—like the defendant’s education level, socioeconomic background, or neighborhood—they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society,” Mr. Holder told the defense lawyers. Criminal sentences, he said, “should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place.”

The attorney general applauded other uses of aggregate data collection in criminal justice, such as crime mapping pioneered by the New York Police Department, and steering certain defendants toward non-prison rehabilitation programs.

At issue is a trend toward statistical analysis made famous by the book and movie, “Moneyball,” about a baseball general manager who used sets of data to better predict which players would succeed.

That approach has since moved into other sports, and other professions, including criminal justice. Some states and localities have begun using risk assessment calculations to help decide which suspects should be released on bail while awaiting trial, and which ones should be sent to jail to await trial.

States are beginning to experiment with data-driven risk assessments to help determine prison sentences. Pennsylvania and Tennessee have passed laws requiring the use of risk assessments in sentencing decisions. Kentucky has a project to apply risk assessments to determine which defendants should be released on bail while awaiting trial.

Continue reading here (subscription required).

The Coalition for Court Transparency is an amalgamation of eighteen organizations, mainly from the journalism profession. In a report released this week, The Coalition criticized the United States Supreme Court for not doing more to boost public access to court proceedings.

“There remains much to be done to bring the institution in line with our expectations of openness from our nation’s top legal officials,” according to an end-of-term report. “We are looking forward to an equally compelling, yet more transparent, 2014-15 term.”

“Increasing transparency at our nation’s highest court could not come at a more important time,” the report said. “Because Congress remains deadlocked and the relationship between the president and the U.S. House of Representatives is strained and will remain so for the foreseeable future, power in Washington has shifted toward the judicial branch, whose say in the law, given the current politics, is final.”

No progress was made this term on cameras in the Court, or on prompt release of the audio of oral arguments and opinion announcements. In March, the Court responded to a letter from The Coalition on this subject by stating, “There are no plans to change the court’s current practices.”

Nonetheless, The Coalition noted, justices are “not as camera-shy as you’d think.” Justice Sonia Sotomayor, for example, appeared on ABC News “This Week” in June on the occasion of publication of the paperback edition of her memoir “My Beloved World.”

The report also chided the Court for maintaining a no-protest buffer zone in front of the court building while striking down a Massachusetts buffer zone around abortion clinics in McCullen v. Coakley. Similarly, the Court has not acted on requests to post the justices’ financial disclosure forms online.

Issues like judges filing on-line available financial disclosure forms can be complicated. All too frequently lower court judges have had bogus liens filed that are not always simple to remove. But, the report also highlighted the limited scope of the financial disclosures. While there may be reasons for some to be cautious about easily available financial disclosure given the lien phenomenon, the same cannot be said about giving reasons for recusal. The issue of recusal is a burning and divisive issue with elected state court judges due to campaign contributions, so there is an opportunity for the United States Supreme Court Justices to lead by example, even though their reasons for recusal are not campaign contribution related.  

Read more here (registration required). 

Thanks to Judge Wayne Gorman, we can report:

In R. v. Saeed, 2014 ABCA 238, July 22, 2014, the accused was convicted of the offence of sexual assault causing bodily harm.  After being arrested, a penile swab was obtained from the accused (without a warrant) in the following circumstances:

The appellant was taken to the police station, but released sometime between 7:00 a.m. and 7:30 a.m., according to one detective, because of someone’s “bad judgment”. The appellant was arrested again at 8:35 a.m. When he arrived back at the police station at between 8:45–8:50 a.m., he was placed in a “dry cell”, that is one without a toilet or any water. In order to preserve evidence, the appellant was handcuffed to a steel pipe mounted low on the wall of the cell, and seated on the floor with his hands behind his back. Photographs taken of the appellant at 10:00 a.m. showed scratches on his forehead and nose. At 10:25 a.m., constable Mitchell obtained a penile swab from the appellant. Constable Mitchell watched as the appellant wiped his own penis with the swab and then turned over the swab. Analysis of the swab showed DNA matching the complainant.

The trial judge concluded that the obtaining of the swab was not a lawful search incident to arrest and thus, it was an illegal warrantless search in violation of section 8 of the Charter.
However, the trial judge concluded that the evidence was admissible pursuant to section 24(2) of the Charter.  The accused was convicted and appealed.

The appeal was dismissed by the Alberta Court of Appeal.  The three presiding justices, however, differed as to why.

 

MR. JUSTICE McDONALD

Mr. Justice McDonald held that there had a violation of section 8 of the Charter had not occurred.  He noted that the “Supreme Court of Canada decision in Golden posits three
requirements in order for a strip search to be justified as incidental to arrest:

(i) the arrest must be lawful – that is not an issue in this case;

(ii) the search must be related to the reasons for the arrest – the arrest here was for sexual assault and the search was to determine if the complainant’s DNA was on the appellant’s person; and

(iii) the reasonableness of the search itself – in this case the search was clearly to preserve evidence and done in a respectful manner.”

In this case, Mr. Justice McDonald concluded that the police did not require a warrant to obtain the penile swab (at paragraphs 28, 29 and 36):

In my opinion, the trial judge erred in ruling that the strip search violated the appellant’s s. 8 Charter rights. As pointed by the Crown, Golden requires the existence of exigent circumstances to justify a strip search in the field. This is not the requirement for a strip search that is conducted at a police station. What is required in the latter situation is that reasonable grounds exist and that the search itself be conducted in a reasonable fashion: para 105 of Golden. However, that said, the highly time-sensitive nature of the evidence being sought does constitute exigent circumstances in my opinion.

The trial judge reviewed the 11 factors set forth in para 101 of Golden which are to be considered in determining whether a strip search incident to arrest is compliant with the Charter. Having considered the evidence in light of these relevant factors and given that the trial judge held the strip search to have been conducted in a “reasonable fashion”, her ruling that there was a s. 8 Charter breach cannot be sustained as a matter of law. In my opinion, there was no need for the police to have obtained a warrant in order to conduct the penile swab as they had ample authority to do so pursuant to the common- law power of search incident to arrest, given the facts of this case i.e., a sexual assault that had occurred mere hours before and the need to preserve important evidence…

It would be an affront to one’s sense of justice for the police in this case to be required to stand idly by while highly relevant but time sensitive DNA evidence disappeared forever. Again it must be emphasized that this is potential DNA evidence of the complainant located on the appellant’s body surface and not the appellant’s own DNA. The latter situation is governed by R v Stillman. In my view, a telewarrant was not required as a precondition for the police to have conducted the penile swab in question.

 

JUSTICES WATSON AND BIELBY

Justices Watson and Biebly concurred in concluding that the appeal should be dismissed.  However, they held that the trial judge was correct in finding that a breach of section 8 of the Charter had occurred.  The justices held that “in the absence of a recognized exception to the presumptive requirement for prior judicial authorization to permit a search of this intimate sort to occur, the absence of that prior authorization means that there was a breach of the right of the appellant to be free of unreasonable search and seizure. Those exceptions include situations where an accused consents to the search and seizure, where it is truly incidental to arrest in the sense it flows from a valid concern for officer safety or evidence preservation, or in situations of exigency. This last category deserves particular comment because its qualities and limitations dictate that it will rarely arise.”

The justices concluded that “reinforcement of the warrant presumption seems the safest course for the law” (at paragraphs 61 and 62):

It is difficult to imagine a situation where a Charter-compliant warrantless search of such a nature as to infringe upon bodily integrity could occur absent consent or a finding of a realistic possibility that the evidence might disappear in the likely time needed to obtain a warrant. It may be that a finding of exigency may arise, or it may be that the delay occasioned by the time needed to apply for a warrant would raise a real risk of imminent bodily harm to anyone. However, this is not an area where the law can be simplistic. But reinforcement of the warrant presumption seems the safest course for the law.

In our respectful view, this is an area of the law that must be approached with acute attention to the rights of the individual even though it must also be attentive to the quite understandable needs and practicalities of law enforcement and public protection. In sum, unless a statute otherwise provides, a warrant is required for any intimate search and seizure for bodily samples from the person, absent consent, absent evidence which establishes that the time required to apply for a warrant could result in the bodily samples sought significantly deteriorating or disappearing before a search and seizure under warrant could be undertaken or absent evidence of extreme exigency. Such a search cannot be justified, without warrant, simply on the basis of being incidental to arrest, without more.

In concluding that the trial judge did not err in admitting the evidence, the justices noted that the “need to adjudicate on true facts is a long term social objective, of which the magnitude, or lack of it, of the specific case is an example.”

The New York Times reports:

Jailhouse conversations have been many a defendant’s downfall through incriminating words spoken to inmates or visitors, or in phone calls to friends or relatives. Inmates’ calls to or from lawyers, however, are generally exempt from such monitoring. But across the country, federal prosecutors have begun reading prisoners’ emails to lawyers — a practice wholly embraced in Brooklyn, where prosecutors have said they intend to read such emails in almost every case.

The issue has spurred court battles over whether inmates have a right to confidential email communications with their lawyers — a question on which federal judges have been divided.

For the full story, go here.

The U.S. Supreme Court, which struck down a Massachusetts law that established a 35-foot buffer around abortion clinics, enjoys its own protest-free zone.

A federal law bars protests from the white marble plaza of the U.S. Supreme Court building, an irony that was not lost on supporters of abortion rights. In a recent press call, Martha Walz, chief executive officer at Planned Parenthood League of Massachusetts, said the court’s decision also raises questions about the buffer zone at the Supreme Court.

Court rules – drawn from the law – ban assemblies, processions, and displays on court property.

Judge can’t be sued for affair with mother in child custody case

A former Michigan judge who had an affair with a woman while he presided over her child custody case cannot be sued by the father in the case, a federal appeals panel has ruled.

The U.S. 6th Circuit Court of Appeals wrote that while Wade McCree’s conduct was “often reprehensible,” he cannot be sued under the doctrine of judicial immunity. The appeals panel assured “casual readers” that it was not simply protecting one of its own.

“There should be no immunity for what happened here,” said Joel Sklar, the father’s attorney.

The father accused McCree of giving favorable rulings to the mother in the case. McCree is accused of having a sexual relationship with the woman, sexting her from the bench and giving her thousands of dollars. The husband and father in the case, who was ordered to pay child support by McCree, vows to bring his challenge of judicial immunity to the U.S. Supreme Court.

The decision is not reported, but may be found here (log-in required).