From Circuit Splits:

Federal Rule of Civil Procedure 606(b) generally prohibits jurors from testifying about their “mental processes concerning the verdict or indictment” when the validity of their verdict or indictment has been called into question. Yesterday the Third Circuit addressed “a split of authority as to whether and when Rule 606(b) is constitutional when applied to bar testimony about jury racial bias.” United States v. Shalhout, Nos. 12-1076 & 12-1077 (3d Cir. Dec. 18, 2012) (nonprecedential).

Writing for the panel, Judge Thomas Hardiman summarized the split as follows:

The Courts of Appeals for the First and Seventh Circuits have found that Rule 606(b) is sometimes unconstitutional when applied to bar testimony about racial bias. See Villar, 586 F.3d at 87; Shillcutt, 827 F.2d at 1159. On the other hand, the Tenth Circuit has suggested, without explicitly finding, that Rule 606(b) is always constitutional. See Benally, 546 F.3d at 1241.

The court ultimately avoided widening the 2-1 split, explaining,

We need not decide which approach is correct because we find that Rule 606(b) is constitutional as applied to bar the evidence of racial bias in this case. The courts in both Villar and Shillcuttfound that Rule 606(b) would be unconstitutional only in “rare” cases where the evidence of racial bias would be strong enough to call into question whether the defendant received a fair trial. See Villar, 586 F.3d at 88; Shillcutt, 827 F.2d at 1159.

Both courts found that stray comments do not render Rule 606(b) unconstitutional. See Villar, 586 F.3d at 87 (“[W]e emphasize that not every stray or isolated off-base statement made during deliberations requires a hearing at which jury testimony is taken.”); Shillcutt, 827 F.2d at 1159 (finding that Rule 606(b) was constitutional as applied to bar evidence of a single juror’s comment that: “Let’s be logical; he’s a black, and he sees a seventeen year old white girl—I know the type.”).

Here, the Shalhouts’ evidence consists of one racial statement by Juror 62, a non- deliberating alternate juror. The Shalhouts have also presented Halliday’s vague allegations that two or three deliberating jurors made racial comments. However, Halliday could not remember anything about any of the deliberating jurors who allegedly made the racial statements apart from the fact that they were male. Thus, the Shalhouts’ evidence squarely falls within the category of stray comments that can be constitutionally barred by Rule 606(b). See Villar, 586 F.3d at 87.

You can read the full opinion here: United States v. Shalhout, Nos. 12-1076 & 12-1077 (3d Cir. Dec. 18, 2012) (nonprecedential).

How Appealing reports “The Catch-22 of Eyewitness ID: Juries trust the memory of witnesses even when they shouldn’t.”

Skye Nickalls has this jurisprudence essay online at Slate.

The U.S. financial crisis, while bad for many Americans, may have actually been good for some lawyers—particularly those who practiced in federal courts.

New criminal and civil cases filed in U.S. federal courts increased more than 13% between the end of fiscal year 2007 and fiscal year 2011, which set a five-year high with 402,885 new cases filed nationwide.

However, that growth may be tapering off a bit. New case filings fell 4% to 386,664 cases nationwide in fiscal year 2012, which ended Sept. 30, according to new case management statistics just released by Administrative Office of the U.S. Courts.

Police did not violate a defendant’s constitutional protections against unreasonable search and seizure when they impounded his car and secretly installed a GPS device on it, the Wisconsin Supreme Court ruled. The defendant was stopped  by police who suspected him in a number of burglaries . The police impounded the  vehicle the defendant was driving and secretly installed a GPS device.

Police obtained a warrant from a  judge to “place an electronic tracking device” on the Pontiac, but the warrant did not specify the device’s features in detail.  Access  ruling of the Supreme Court of Wisconsin at this link.

United States v. Jones, ___ U.S. ___, 132 S. Ct. 945 (2012), establishes that the installation of a GPS device in a car constitutes a search within the meaning of the Fourth Amendment.

From Georgetown Law Weekly

The New York Times reports that, “New York’s chief judge on Tuesday called for a major overhaul of the bail process for defendants awaiting trial in state courts, saying the current system unfairly detains many people charged with low-level crimes and may fail to protect the public from dangerous defendants.

In his annual State of the Judiciary speech in Albany, the chief judge, Jonathan Lippman, said that New York was one of only four states that do not allow judges to consider public safety when making a bail determination. Only the risk that the defendant will return to court for trial can be assessed.

“As a result, defendants may be put back on the street with insufficient regard to public safety, with possibly catastrophic consequences,” the judge said. “This makes no sense and certainly does not serve the best interests of our communities and our citizens.” The complete story is here.

Chief Judge Lippman’s full speech can be found here.

This is the time of year when Chief Justices in many states deliver a State of the Judiciary Address. New York Chief Judge Jonathan Lippman delivered an address in New York. It can be found at: http://www.courts.state.ny.us/

Gavel Grab reports that, “In an annual report on the judiciary, Kansas Supreme Court Chief Justice Lawton Nuss urged the legislature to recognize the need for more adequate funding of the state’s courts.

“Adequate court funding is critical to providing these essential services, while inadequate funding undermines not only access to justice, but also the people’s belief in the justice system itself,” Nuss said.

According to the Topeka Capital-Journal, Nuss said the judiciary had been efficient in its budgeting, and that it was helpful in promoting economic growth to Kansas.

He also called for state lawmakers to provide the funding needed to establish 22 new district judge positions. This would be an alternative to a statute requiring “at least one judge be located in each of the state’s 105 counties.”

House Speaker Ray Merrick prevented Nuss from delivering his State of the Judiciary speech in person, stating the time “could be put to better use on other things.” Nuss sent his report in writing instead.

As he has on so  many initiatives that affect self represented litigants Richard Zorza has an interesting post on his blog:

Two new Plain Language Resources for Courts and Access to Justice Initiatives

In November 2012, the Maryland Access to Justice Commission, released a plain plain language guide, specifically for those writing instructions and materials for court users. The guide is full of pratical guides, examples, and provides very clear rules on how to simplify instructions and court based materials. http://www.courts.state.md.us/mdatjc/pdfs/writingforsrls.pdf

Allison Parker, staff attorney and policy analyst at the Commision was the lead person behind the guide.  The guide is chokeful of helpful information, it even has a suggestion on how to check materials so that they are accessible to color blind readers!

Here is an example of a section, that shows how easy to access the information here is:

Another wonderful set of resources was released in December 2012. Jeff Hogue from LAWNY, released a new set of resources on plain language, available to all groups working on access to justice initiatives here http://www.writeclearly.org.

With funding from the Legal Services Corporation TIG grants and with Transcend Inc. LAWNY’s  http://www.writeclearly.org has become a great repository of examples of ways to provide legal information, concepts, and instructions using simple, non legal, non-jargon terms in plain language.

In my opinion, the cornerstone of these materials is the 96 page The Essential Plain Language Collection, that contains readable documents, before and after comparison of documents, and very good tips. But there is more than this very complete guide or collection here.

Writeclearly.org has a fantastic library that offers plenty of models in Spanish, English, and other languages of documents that courts and legal services will find helpful. There is also a “gadget” that lets you enter a word or phrase and the “gadget” tells you how readable or not your word work is, using well recognized standards.

For those who want to learn or teach others about plain language, the site offers an online course—that lets a person interested in improving writing for self represented or non attorney audiences go through an online course to improve.

New resources are posted on the site as they get completed, so this is a site to visit often to see what new tools or resources have been posted. A report  is coming up and will be shared on machine assisted translation.

Mental Health Courts from A to Z

CSG Justice Center Training Curriculum Blends Online Learning, Live Activities

By Jacqueline Cheney, CSG Justice Center Policy Analyst

Research shows people with mental illnesses and co-occurring substance use issues enter local jails three to six times more often than the general population.

That creates a challenge for the nation’s criminal courts.

“The cycling of individuals with mental illnesses through our criminal justice system is a critical issue with implications for public safety, health and expenditures, not to mention the lives of millions across the country,” said Ruby Qazilbash, associate deputy director of the Bureau of Justice Assistance at the U.S. Department of Justice.

The use of mental health courts, which combine mental health and, often, substance use treatment with court supervision, is a popular approach to address this issue. Some 300 jurisdictions have launched new programs since 2000. Nearly every state has a mental health court.

For the full article, click here.

The Sixth Amendment’s Confrontation Clause provides to a criminal defendant the right to confront and cross-examine adverse witnesses.  The Supreme Court has repeatedly recognized the importance of cross-examination.  As the Court stated in Coy v. Iowa, 487 U.S. 1012, 1019 (1988), “[i]t is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.'”

Although defendants generally enjoy a right to face-to-face confrontation of witnesses, this right is not absolute.  Unique circumstances in a case may require the court to take alternative measures to ensure the essence of the defendant’s right of confrontation.

 
How Appealing had this interesting post : “[W]e have occasion here to address an issue of first impression in this circuit, namely whether a witness’s testimony in disguise at trial violates the Confrontation Clause of the Sixth Amendment to the United States Constitution.” So states an opinion that a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued today.

The unanimous panel proceeds to hold “that in this case, the disguise in the form of a wig and mustache did not violate the Confrontation Clause.”