Judicial Collegiality

Join Berkeley Judicial Institute on May 14 at 9:00 A.M. PT for a discussion of best practices that promote judicial collegiality.
 FREE REGISTRATIONU.S. Sixth Circuit Court of Appeals Judge Bernice Donald and MN district court Judge Kevin Burke (retired) will facilitate the conversation. Just participating is a step toward greater collegiality!Have ideas for other academics Berkeley Judicial Institute should invite to discuss their work?  Let us know, please, by emailing bji@law.berkeley.edu.LEARN MORE ABOUT BJI
UC Berkeley School of Law
224 Law Building
Berkeley, CA 94720

The Police Towed The Suspects Car! Can They?

There is no data on how often the police tow a suspect’s car but every trial court judge knows it happens frequently. But the police do not have unbriddled  authority to two as this very recent case illustrates

From Fourth Amendment.com

Defendant’s car on his arrest would have been left on a motel parking lot, and the government didn’t show that this was a reasonable choice. Impoundment was thus unnecessary for community caretaking, and the denial of the motion to suppress is reversed. United States v. Venezia, 2021 U.S. App. LEXIS 13076 (10th Cir. May 3, 2021):

Guided by the Supreme Court’s decisions in these cases, we clarified the precise standard for determining the constitutionality of a police-ordered impoundment on private property in Sanders: “when a vehicle is not impeding traffic or impairing public safety, impoundments are constitutional only if guided by both [1] standardized criteria and [2] a legitimate community-caretaking rationale.” 796 F.3d at 1243.

Here, Venezia argues the officers failed to comply with either requirement, rendering the impoundment unconstitutional for two independently sufficient reasons. The government disagrees. Reviewing de novo, we conclude that the impoundment was guided by standardized criteria, thus satisfying the first prong of Sanders. We also conclude, however, that the impoundment was not guided by a legitimate community-caretaking rationale, thus failing the second prong of Sanders.

. . .

6.Weighing the Factors

To summarize: the vehicle at issue was legally parked on private property, did not impede traffic, and did not pose a safety hazard. The private property owner did not object to the vehicle’s presence. None of these facts are in dispute. Rather, the parties dispute whether leaving Venezia’s vehicle in the motel parking lot would have unnecessarily exposed it to risk of theft or vandalism.

As discussed above, the vehicle in this case was not at unnecessary risk of theft or vandalism, and thus the officers lacked a reasonable community-caretaking rationale. The officers could not reasonably conclude that the vehicle would be unattended for a prolonged period of time based on their unsuccessful 9:00 P.M. attempt to call the vehicle’s registered owner. And the vehicle’s presence in the motel parking lot was no different than any other vehicle in the lot. For these two reasons, the officers’ decision to impound the vehicle was not guided by a reasonable community-caretaking rationale as required under the second Sanders prong. The officers could no more impound Venezia’s vehicle than they could impound any other vehicle at the motel, assuming its driver was unavailable and its registered owner could not be reached that night.

It is unnecessary to decide whether the asserted community-caretaking rationale was also “pretextual.” In fact, in this case, the evidence of pretext is scant. Yet, we held in Sanders that an asserted community-caretaking rationale must be both “reasonable” and “non-pretextual.” Id. at 1248. The officers in this case were attempting to rely on their standardized policy when impounding the vehicle. That policy, however, as exercised here, simply did not grant the officers authority to do what the Fourth Amendment forbids—to impound a vehicle absent a reasonable community-caretaking rationale.

Judicial Collegiality

Join Berkeley Judicial Institute for a discussion of best practices that promote judicial collegiality. U.S. Sixth Circuit Court of Appeals Judge Bernice Donald and MN district court Judge Kevin Burke (retired) will facilitate the conversation. Just participating is a step toward greater collegiality!


1.25 hours of CLE credit will be offered for this program.

Here is a direct registration link:


How Should Courts Protect Privacy?

Tim O’Brien has posted New Writs of Assistance: Geofence Warrants and the Fourth Amendment on SSRN. Here is the abstract:Geofence search warrants, also known as reverse location search warrants, are a new, digital version of the general warrants, or “writs of assistance”, that were at the heart of the Fourth Amendment’s inclusion in the Bill of Rights. Fourth Amendment jurisprudence has been consistently challenged for over a century in the face of technology advancements such as the wiretap, computers, the internet, and mobile phones. But the challenge posed by geofence warrants, in which the government can demand that private sector technology providers disclose a list of mobile devices in a defined place at a defined time, may be the Fourth Amendment’s most vexing encounter yet. When combined with protections provided by the Stored Communications Act, enacted in 1986, it positions the courts as a porous last line of defense between government intrusion and expectations of privacy in the mobile device era.
This Article explains why this situation is perilous, and describes the widening gap between existing Fourth Amendment jurisprudence and rapidly advancing technology to obtain, aggregate, and correlate data about citizens, both anonymous and uniquely identifying, to surveil and profile the public, with a focus on geofence warrants as this era’s emblematic investigative tool. This Article will explain why anonymization is a weak safeguard and argue for more stringent requirements to bring judicial domain knowledge in line with that of law enforcement officers, who have greater access to specialized training in digital forensics. Lastly, the Article will discuss needed reforms to current statutory protections that no longer possess the ability to constrain government intrusion into our daily lives. The judiciary and legislatures place checks on one another, but both are quickly being left behind by technology advances, big data, and private sector inclusion in modern law enforcement.

The Constitutional Right to an Implicit Bias Jury Instruction


The Constitutional Right to an Implicit Bias Jury Instruction

The Supreme Court has gone to great lengths to prevent jurors from holding defendants’ silence against them. In a trilogy of opinions, the Court concluded that when a defendant refrains from testifying, (1) the prosecutor and judge cannot make adverse comments about that decision; (2) the judge can give a “no adverse inference” instruction even over a defense objection; and (3) the judge must give a “no adverse inference” instruction upon a defense request. Conversely, the Court has never ruled that jurors can impeach their verdict based upon jurors holding a defendant’s silence against him, and lower courts have ruled against recognizing such a right to jury impeachment.

Meanwhile, the Supreme Court has addressed the issue of juror racial bias in reverse. In 2017, the Court ruled in Pena-Rodriguez v. Colorado that jurors must be allowed to impeach their verdict based on jurors holding a defendant’s race against him. But the Court has never held that there is a right to an implicit bias jury instruction, and no lower court has ever recognized such a right. 

In Pena-Rodriguez, however, the Supreme Court clearly recognized that the right to an impartial jury not only addresses “unique historical, constitutional, and institutional concerns,” but also requires “[a] constitutional rule.” Specifically, the Pena-Rodriguez Court concluded that “[a] constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.”

This article contends that this rule must go further and address juror racial bias on both the back end and the front end. For the same reasons that the Supreme Court created the right to a jury instruction that jurors must not hold a defendant’s silence against him, it should recognize the right to a jury instruction that jurors must not hold a defendant’s race against him. Miller, Colin, The Constitutional Right to an Implicit Bias Jury Instruction (February 14, 2021). Available at SSRN: https://ssrn.com/abstract=3785645 or http://dx.doi.org/10.2139/ssrn.3785645 

How Should Derek Chauvin Be Sentenced?

Among the best blogs is Professor Doug Berman’s Sentencing Law & Policy blog. This is one of his recent posts:

As reported in this local article, headlined “Prosecutors seek aggravated sentence against Derek Chauvin, argue George Floyd was ‘treated with particular cruelty’,” the sentencing phase of the prosecution of the former police office convicted of killing George Floyd is now at the first briefing stage.  Here are the basics:

Prosecutors asked a judge Friday to give Derek Chauvin a longer prison sentence for killing George Floyd, arguing that the crime was particularly cruel….

Chauvin will be sentenced on June 25. Minnesota sentencing guidelines suggest that an individual without any prior criminal history should be sentenced to 12.5 years in prison for second-degree murder. However, prosecutors have signaled their intent for months to seek an aggravated sentence against Chauvin.

If Hennepin County Judge Peter Cahill grants the prosecution’s request, Chauvin could face a maximum of 30 years in prison.

Prosecutor Matthew Frank argued in a 26-page memorandum that an aggravated sentence is warranted because Floyd was a “particularly vulnerable victim” and “treated with particular cruelty.” Frank also said Chauvin “abused his position of authority,” committed the crime with three or more others and in front of children.

Chauvin’s attorney Eric Nelson filed a 10-page memorandum Friday opposing the prosecution’s ask, arguing against each of their five points. Nelson wrote that Floyd being handcuffed did not make him “particularly vulnerable.” Nelson pointed to how Floyd was over 6 feet tall and weighed more than 200 pounds and said he was resisting arrest.

Here are links to these new filings with their opening paragraphs:

State’s Memorandum of Law In Support of Blakely Aggravated Sentencing Factors

The State respectfully requests an aggravated sentence for Defendant Derek Chauvin, a former police officer convicted of second-degree murder, third-degree murder, and second-degree manslaughter in connection with the death of George Floyd.  See Blakely v. Washington, 542 U.S. 296 (2004)Minn. Stat. § 244.10Minn. R. Crim. P. 7.03.  The facts proven beyond a reasonable doubt at trial demonstrate that five aggravating factors support an upward sentencing departure.

Defendant’s Memorandum of Law Opposing Upward Durational Departure

On April 20, 2021, a jury convicted Defendant Derek Michael Chauvin of all three counts alleged in the Complaint against him in connection with the death of George Floyd: unintentional second-degree murder, third-degree murder, and second-degree manslaughter.  The State has moved for an upward sentencing departure, alleging that facts support five different reasons for which the Court may impose an aggravated sentence.  Mr. Chauvin, through his attorney Eric J. Nelson, Halberg Criminal Defense, submits the following in opposition to an upward durational sentencing departure.

Should Judges Use Twitter?

California judges who are using social media platforms should be cautious about posting their thoughts on the legal system or the administration of justice, a judicial ethics committee said recently. In a nine-page advisory opinion, the Caifornia Committee on Judicial Ethics Opinions warns that Twitter, Facebook and other online outlets are laden with potential “ethical pitfalls” for bench officers, who are required by canons to avoid the appearance of bias.
The option begins with this. 

Judges may use social media to make statements relating to the law, the legal system, or the administration of justice, but should consider the following when posting or engaging with others online: (1) the same standards for judicial communications that apply in face-to-face settings apply with equal force to online statements and social media posts; (2) due to lack of control over the dissemination and permanence of online statements, judges must exercise caution and restraint and should assume the widest possible audience; (3) while statements concerning the law, the legal system, or the administration of justice are generally permissible, judges may not engage in prohibited social or political commentary on social media; and (4) judges must carefully evaluate what they intend to post and continually monitor their social media communications and posts to ensure public confidence in the integrity, independence, and impartiality of the judiciary.

III. Discussion

Social media has become a pervasive form of communication and socialization in daily life. Social media is commonly used to share information, network, connect with friends, and express opinions. Judges are no exception to the popularity of social media. (Epps & Warren, Resisting Shiny Trinkets in This New Digital Age: Judicial Interaction with Media Platforms (Aug. 2019) 58 Judges’ J. 28, 30 [as of 2016, surveys showed that approximately 40 percent of judges use social media]; Cal. Judges Assn., Jud. Ethics Com., Advisory Opn. No. 78 (2020),p. 3 (CJA Opn. No. 78) [observing that more and more judges are expected to engage in social media over time].)

With social media permeating nearly every aspect of personal and professional life, it is understandable that judges have questions regarding how to use social media without violating the California Code of Judicial Ethics.  In general, social media is governed by the same rules that govern statements made in any other context. However, there are certain ethical pitfalls associated with social media, such as the loss of control over and permanence of statements, that distinguish it from other forms of communication. For guidance, the committee provides the following standards and cautions concerning the use of social media to express opinions related to the law, the legal system, or the administration of justice.

Supreme Court Grants Cert in Confrontation Clause Case

By Evidence ProfBlogger 

This week, the United States Supreme Court granted certiorari in Hemphill v. New York. Here is the issue presented:

Whether, or under what circumstances, a criminal defendant, whose argumentation or introduction of evidence at trial “opens the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence, also forfeits his right to exclude evidence otherwise barred by the confrontation clause.

As the cert petition notes, there are currently three approaches:

Three jurisdictions hold that criminal defendants never “open the door” to the admission of evidence that is otherwise barred by the Confrontation Clause;

Five jurisdictions hold that defendants “open the door” to testimonial hearsay when they introduce a testimonial statement by the same declarant; and

Three jurisdictions hold that defendants “open the door” to testimonial hearsay whenever they create a “misleading” impression at trial.

In the Hemphill case specifically,

During Darrell Hemphill’s trial for killing a two-year-old boy with a stray bullet during a fight on Easter Sunday 2006, his attorney elicited testimony that police had found a 9-millimeter handgun, the kind of gun used in the crime, on an alternative suspect’s nightstand hours after the shooting. In response, the prosecution introduced that other suspect’s hearsay statement from a guilty plea allocution that he had a .357 revolver with him at the fight, not a 9-millimeter. The Sixth Amendment would normally require the prosecution to introduce such evidence through the live testimony of the other suspect so that defense counsel could cross-examine him. However, the trial judge let in the statement because the judge found that Hemphill had “opened the door” to this hearsay evidence by creating the impression that the other suspect had the 9-millimeter. New York’s highest court affirmed.

An Important Decision By The Supreme Court of Canada

The Supreme Court of Canada ruled that Indigenous people who are not Canadian citizens and who do not live in Canada can have constitutionally protected rights in the country if they belong to groups that are modern-day successors of ones that once occupied territory there.The decision could have far-reaching ramifications for Indigenous people on both sides of the U.S.-Canada border.The ruling in the case of Richard Desautel, a U.S. citizen and member of the Lakes tribe of the Colville Confederated Tribes in Washington state, ended a legal battle that began in 2010 when he shot a cow elk in the Arrow Lakes region of British Columbia.He alerted a conservation officer and was charged with hunting without a license and hunting big game while not a resident of British Columbia.

“Supreme Court ruling grants constitutional rights for Indigenous peoples outside Canada with ties to the land”: Sean Fine of The Toronto Globe and Mail has this report.

 Amanda Coletta of The Washington Post reports that “Canada’s Supreme Court says some Native Americans can hunt in British Columbia.”

You can access the  ruling of the Supreme Court of Canada at this link.

What To Do To Enforce Brady

It has been over 50 years since the United States Supreme Court decided Brady v Maryland. Very few lawyers are still practicing who practiced before there decision. And yet we still see Brady violations with some degree of regularity.

Brian MurrayPaul S. Heaton and Jon Gould (Seton Hall Law School, University of Pennsylvania Law School and ASU School of Criminology and Criminal Justice) have posted Qualifying Prosecutorial Immunity Through Brady Claims(Iowa Law Review, Vol. 107, 2021-22) on SSRN. Here is the abstract: This Article considers the soundness of the doctrine of absolute immunity as it relates to Brady violations. While absolute immunity serves to protect prosecutors from civil liability for good-faith efforts to act appropriately in their official capacity, current immunity doctrine also creates a potentially large class of injury victims—those who are subjected to wrongful imprisonment due to Brady violations—with no access to justice. Moreover, by removing prosecutors from the incentive-shaping forces of the tort system that are thought in other contexts to promote safety, absolute immunity doctrine may under-incentivize prosecutorial compliance with constitutional and statutory requirements and increase criminal justice system error.

The Article seeks to identify ways to use the civil justice system to promote prosecutorial compliance with Brady, while recognizing the need to provide appropriate civil protections to enable prosecutors to fulfill their unique role within the criminal justice system. After developing a novel taxonomy of Brady cases, evaluating such cases against basic tort principles, and considering the prosecutorial community’s views regarding appropriate Brady remedies, it proposes a statutory modification of absolute immunity that might better regulate and incentivize prosecutor behavior, reduce wrongful convictions, and improve access to justice.