Monday, May 11, 2015
In 2013, the Vera Institute of Justice published a report entitled, “Sentencing and Prison Practices in Germany and the Netherlands: Implications for the United States.” The report was part of a larger “experiential” project in which teams of state officials from Colorado, Georgia, and Pennsylvania visited Germany and the United States to get a first-hand look at prison facilities and correctional practices. Without a doubt, American practices such as high mandatory minimum sentences, long sentences for drug crimes, and the incarceration of mentally ill offenders have fueled the rise of our nation’s prison system and led to incarceration rates that lead the Western world.
Some of the key differences in prison practices that the report taught include: longer and more professional training for prison officials, changes in the architectural design of prisons, and increased freedom of movement of inmates may be worth trying in the United States.
However, what the report fails to consider is the extent to which the problems in the U.S. system extend beyond our sentencing and correctional practices. Even if we eliminate mandatory minimum sentences, will the current structure of prosecution offices (headed by elected officials) embrace the widespread use of diversionary sentences? There is a vast difference between the organizational culture in German prosecution offices and their U.S. counterparts. To begin, the German Code of Criminal Procedure actually mandates that prosecutors conduct an objective investigation. It is the judge or judicial panel that conducts the bulk of the questioning in a criminal trial, not the prosecutor. Indeed, in most of the trials that I observed in Germany, the prosecutor is not invested in a particular outcome.
Underpinning these differences in institutional design are historical and cultural norms. In Germany, where law is considered a science that can only be understood by professionals, the prospect of allowing a civilian jury to adjudicate guilt is inconceivable. In the U.S., with our wariness of government, the prospect of entrusting the fate of the accused to a government bureaucrat might be enough to provoke riots in the streets. Perhaps an even deeper divide to bridge is our societal condemnation of criminals and the barriers that the system places in the way of reentry. In Germany, the government aims to reintegrate those who have gone astray quickly back into society. Thus prisons are not isolated gulags where inmates are stripped of their humanity. In the U.S., we treat inmates as people who need to be separated from society as well as their own humanity.
So, as we look for “solutions” to our problems in the U.S., let’s be open to the fact that the true roots of the problems in the criminal justice system go beyond sentencing practices.
Thursday, May 7, 2015
A recent case in England epitomizes the difference between our bill-of-rights-based criminal justice system and the UK’s more practical, parliamentary and judge-based process.
Last week, Masood Mansouri was convicted of rape. Mansouri, a carwash owner, apparently pretending to be a cab driver, picked up Ceri Linden, who was hailing a taxi, kidnapped her and raped her. Five days later, she committed suicide. She thus was unavailable to testify at trial. Instead, the jury watched a videotaped recording of an interview Ms. Linden gave to the police in which she described the assault. No rape case has ever been successfully prosecuted in England and Wales based on statements of a victim who is not subject to cross-examination.
Interestingly, of course, this kind of evidence would not be admissible in the United States -- and for a host of reasons. Aside from the fact that it is hearsay for which there is no exception, it would not be admissible under the residual clause. According to the testimony of a consultant forensic psychologist, Ms. Linden had an “emotionally unstable personality disorder,” and had been hospitalized nine times over six months for attempted suicides. My guess is that these circumstances would have made it inadmissibly unreliable. Nor would it be admissible under 'forfeiture by wrongdoing,' exception, because the defendant did not intentionally cause her to be absent. Last but manifestly not least, the videotape clearly is a testimonial equivalent whose admission violates the confrontation clause under the Supreme Court’s Crawford v. Washington jurisprudence.
The stark inadmissibility of the video under US law raises interesting, recurring questions. While this conviction could be overturned either by UK domestic courts or the European Court of Human Rights, it’s a good reminder about the protections of the bill of rights and the limitations on US judges.
- Frances Gibb, Rapist jailed on victim’s evidence “from the grave,” The London Times (May 1, 2015).
- Crawford v. Washington, 541 U.S. 36 (2004). (OYEZ, slip opinion)
Monday, April 27, 2015
James Maxeiner, an Associate Professor of Law at the University of Baltimore School of Law, has posted: A Government of Laws Not of Precedents 1776-1876: The Google Challenge to Common Law Myth (April 21, 2015). 4 British Journal of American Legal Studies 141 (2015).
Available at SSRN: http://ssrn.com/abstract=2597431
Thursday, April 23, 2015
Today in London, English lawyers are protesting what they see as the collapse of the criminal justice system. No doubt austerity and budget cuts are to be blamed.
At the same time, there is still talk from the Tories about creating a British bill of rights. Readers will recall that the Human Rights Act, which came into effect in 2000, essentially rendered the British judicial system subject to the European Charter of Human Rights and to review by the European Court of Human Rights in Strasbourg. 9/11 occurred shortly thereafter. As a result of the fear and reality of terrorism, the Human Rights Act and its focus on human rights has lost popularity. Perhaps the notion of being subject to review by the mainland has lost whatever popularity it once had too.
To read an article from The Times of London on these subjects, click on the link below.
Monday, April 20, 2015
Mathias Siems of Durham Law School (Durham University) and the Centre for Business Research (The University of Cambridge) recently posted on SSRN an article that admirably categorizes various the main research approaches to comparative corporate law. From the abstract:
In the growing literature on comparative corporate law there is often a lack of consideration to the recent advances made in the general field of comparative law. This chapter aims to fill this gap. It outlines a conceptual framework that shows how seven core themes of comparative law can be linked to research on comparative corporate law. Subsequently, it explains these seven topics in more detail, also distinguishing between research approaches that have a legal focus and those that follow a more interdisciplinary perspective. The conclusion suggests that there is a need to overcome not only the separation between comparative and corporate law research but also between legal and interdisciplinary perspectives of comparative corporate law
Monday, April 13, 2015
Twenty years after Beijing hosted the Fourth World Conference on the Status of Women, the Chinese government just today released five women on bail who had been detained for weeks after trying to bring attention to sexual harassment on public transportation. There is no evidence that the young activists’ plans to use apolitical performance art to bring attention to the problem of harassment posed a threat to the political order. Despite the fact, on the eve of International Women’s Day, the government arrested the five women and charged them organizing a crowd to disturb public order- a charge that may carry up to a five year prison sentence (Article 291 China’s Criminal Law).
The government has charged activists for organizing activities under this statute before. Just last year, a court sentenced lawyer-activist Xu Zhiyong, who helped to organize Chinese plaintiffs in the 2008 milk powder lawsuits, to a four year sentence under the statute. Three years earlier, in 2005, Yang Maodong, who provided legal advice to villagers in Guangdong province, was arrested under this same statute. Maodong had been trying to help villagers remove an allegedly corrupt municipal leader from office. Though the government released him in December 2005, a few months later Beijing security officials arrested him again and charged him with “running an illegal business.”
Given the history of Article 291, it appears that anyone who attempts to capture the public attention to improve socio-political issues may find themselves arrested and charged under this Article.
“A Great Danger for Lawyers”: New Regulatory Curbs on Lawyers Representing Protestors,” Human Rights Watch (2006).
Donsheng Zhang, “Civil Procedure and Anti-Modern Myths in the ‘Harmonious Society’: China and pre-war Japan Compared,” in LEGAL INNOVATIONS IN ASIA: JUDICIAL LAWMAKING AND THE INFLUENCE OF COMPARATIVE LAW. (2014)
Edward Wong, “Chinese Police Seeking Charges Against Detained Women’s Activists, Lawyer Says. New York Times, April 9, 2015.
Edward Wong, “China Releases 5 Women’s Rights Activists Detained For Weeks,” New York Times, April 13, 2015.
Sunday, April 5, 2015
My most recent article, "Procedural Economy in Pre-Trial Procedure: Developments in Germany and the United States," was recently published in the Southern California Interdisciplinary Law Review (my alma mater).
And for my other alma mater: GO BADGERS!
Thursday, April 2, 2015
A Parliamentary committee recently published its report on the working of the Criminal Cases Review Commission, the independent governmental body that reviews claims of miscarriages of justice and refers them to the court of appeal. It's an amazing report. The Committee essentially found that the CCRC was performing "reasonably well." But it had many significant recommendations. First, the standard of referral by the CCRC -- the "real possibility" of a different decision on appeal -- has been under tremendous criticism as compromising the CCRC's independence from the court. While the committee did not recommend changing the test, it did note that such a change would require a change in the court of appeal's jurisdiction to grant relief where there is no new evidence or argument but only a concern about the accuracy of the result. Accordingly, the report recommends that the Law Commission evaluate the court of appeal's grounds for relief where there is "serious doubt about the verdict" even without fresh evidence or argument. meanwhile, it recommended that the CCRC be "less cautious" in its approach to the real possibility test. The report also recommends extending the CCRC's subpoena power to private bodies (a power its sister commission, the Scottish CCRC already has), and that time limits and sanctions be imposed for failure of public bodies to comply with its subpoenas. This will certainly improve the CCRC's investigatory powers. The report also called for giving the CCRC discretion to refuse to investigate cases decided summarily (the less important criminal cases, decided without juries), for additional funding, and for steps by the CCRC to ensure consistently thorough screening among Case Review Managers. Finally, the report recommended that a system be developed for feedback from the CCRC to the relevant players in the criminal justice system about the factors that continue to cause miscarriages of justice. The report can be found here. http://www.publications.parliament.uk/pa/cm201415/cmselect/cmjust/850/850.pdf
If these recommendations are followed, wide ranging changes will make real and tangible improvements in the relief available to those in the UK who claim to be victims of miscarriages of justice, whether on direct appeal or later in the process. It will also help the CCRC get
Sunday, March 22, 2015
The Fordham Urban Law Center and the Sorbonne Center for Study and Research on Environmental, Development, Urban and Tourism Law (SERDEAUT) are pleased to announce a call for participation for the 2nd Annual International & Comparative Urban Law Conference, which will be held on June 29, 2015 at the Sorbonne Law School. Potential participants in panels and workshops at the Conference should submit a one-page proposal to Nisha Mistry (firstname.lastname@example.org), Director, Fordham Urban Law Center, by April 20, 2015.
Thursday, March 19, 2015
Conviction of the innocent is an international issue, and there are innocent projects doing important work all over the world. The Irish Innocence Project, in Dublin, is hosting its annual conference in June 2015. Part of the conference is a film festival devoted to the subject - internationally - of wrongful convictions, exonerations, and exonerees. For a schedule of the conference, please click on the following link.
For a schedule and complete listing of the films to be presented, please click on the following link.
Friday, March 13, 2015
As we continue to think about the larger social impact of extremely long sentences and supermax detention, we should include consideration of the social impact of collateral consequences of conviction. What are the pros and cons of imposing collateral consequences on those who have been convicted and served their punishments? As all criminal law professors know and teach our students, one of the purposes of an actual sentence is rehabilitation and certainly one of the purposes is retribution. The other purposes are isolation and deterrence. So what are the purposes served by collateral consequences? Permanently disenfranching post-sentence - is that part of punishment? Is depriving someone of housing benefits or requiring perpetual reporting of convictions part of punishment or is some other purpose served? Given a growing political and social impact, particularly in the United States, we need to think more clearly about this.
A new statute in the United Kingdom seeks to protect those who have served their sentences from having to report past criminal convictions on a job application. Until recently, those sentenced to four years or less in prison who do not offend again do not have to disclose their criminal records. There is a schedule about when those prior sentences are deemed too old to require reporting. Realizing that “finding a job can be a crucial step in the rehabilitation process,” a recent amendment to the Data Protection Act – a new Section 56 - imposes criminal liability on potential employers who require a job applicant to authorize a data search that would fully reveal past information. For additional information about this new law click here:
In the United States, the ABA has created and launched an extremely helpful NICCC database (National Inventory of Collateral Consequences of Convictions) that collects the law on collateral consequences in the Federal system and each of the fifty states. For review of the database, click here.
To track changes in the United States, and for more information on the debate, please see the readings below.
- Frank Thurston Green, Certificate Confusion Puts Focus on Convictions’ Consequences, City Limits.org (Feb. 17 2015) (certificate of relief program).
- Rachel Black & Aleta Sprague, Give the Unemployed Second Chance, CNN (Feb. 4, 2015).
- K. Reiter, J. Selbin & E. Hersh, Op-Ed, Should a Shoplifting Conviction be an Indelible Scarlet Letter? Not in California, LA Times (Dec. 28 2014).
- Gary Fields & John R. Emshwiller, Fighting to Forget: Long After Arrests, Criminal Records Live On, Wall Street Journal (Dec 25, 2014).
- Monica Haymond, Should a Criminal Record Come with Collateral Consequences?, NPR (Dec. 6, 2014).
- Editorial Board, In Search of Second Chances, The New York Times (May 31, 2014).
- Sarah B. Berson, Beyond the Sentence – Understanding Collateral Consequences, National Institute of Justice – Office of Justice Programs (May 2013).
- National HIRE Network Newsletter, Relief from the Collateral Consequences of Convictions (Nov. 2005 – May 2006).
- Lisa Hale Rose, Community College Students with Criminal Justice Histories and Human Services Education: Glass Ceiling, Brick Wall or a Pathway to Success, 39 Community C. J. Res. & Prac. 584 (2015) (suggesting that students with criminal records at community colleges intending to pursue human services education may face obstructed pathways).
- Heather R. Hlavka, Darren Wheelock & Jennifer E. Cossyleon, Narratives of Commitment: Looking for Work with a Criminal Record, The Soc. Q. (Jan. 23, 2015) (unemployment being the most cited barrier to reentry).
- Amy P. Meek, Street Vendors, Taxicabs, and Exclusion Zones: The Impact of Collateral Consequences of Criminal Convictions at the Local Level, 75 Ohio St. L.J. 1 (2014) (available at HeinOnline).
- Erin L. Bauer et al., Evaluation of the New York City Justice Corps: Final Outcome Report, (July 2014) (evaluation report of the community based programs aimed to help juveniles to reenter).
Sunday, March 8, 2015
Ronald Allen, Northwestern University Law School, has recently posted an article entitled "The Perils of Comparative Law Research," on SSRN.
From the abstract:
This article is part of a festschrift in honor of Michele Taruffo’s remarkable career, and the astonishing erudition reflected in his wide ranging and significant corpus. One criticism is advanced, to-wit that he has too readily accepted as true the persistent rhetoric to the effect that the American adversarial system does not pursue accuracy in adjudication and is dominated by a sporting model in which the stronger and smarter wins regardless of truth and that Continental legal systems are much more geared toward truth determination. This rhetoric is examined and found to rest on striking mischaracterizations of both approaches to litigation. A more accurate, although quite general, description of both approaches is provided that suggests the rhetoric has it exactly backwards. Suggestive data concerning American and Continental legal systems are presented that directly conflict with the rhetoric. In addition, the obvious prediction is that accurate and efficient legal systems should lead to economic growth and innovation. Some suggestive data is presented, which shows that since 1980 the United States has dominated France, Germany, Spain, and Italy in both regards, tending to disconfirm the comparative effectiveness of the European legal systems. Compounding variables are mentioned, and hence the title, “The Perils of Comparative Law Research.”
Allen, Ronald J., The Perils of Comparative Law Research (March 3, 2015).
Available at SSRN: http://ssrn.com/abstract=2573296
We are pleased to announce the Seventh Bi-Annual International Legal Ethics Conference. The topic for this conference will be, "The Ethics & Regulation of Lawyers Worldwide: Comparative and Interdisciplinary Perspectives." The conference is being held at Fordham Law School, in New York City, on July 14-16 2015. If you are interested in legal ethics, or exploring the issues in comparative legal ethics, we urge you to consider attending. Presentations at past conferences have consistently been first-rate and have raised provocative, current and challenging issues of professional ethics regulation, education, practical problems, policy and philosophy. For further information please click on the following link.
Monday, March 2, 2015
Does a legal system have a character or "style" that distinguishes it from other countries, even if the substantive provisions are similar? A classic statement of the affirmative argument is Cappelletti Merryman and Perillo's treatise on the Italian Legal System (1967). In particular the latter chapters, originally drafter by Merryman, describe an Italian style in doctrine (Chapter Five), law (Chapter Six), and interpretation (Chapter Seven). While it's hard to summarize in a blog post, essentially it boils down to a highly logical and insular style with an extreme skepticism about the role of social sciences and other external norms in legal discourse, and (what amounts to about the same thing) an equal skepticism about "lawmaking" by judges or anyone outside the legislature. At its extreme, it expresses itself in the idea that a legal transaction (negozio giuridico) involves a simple logical formula, in which Act A results in the existence of Obligation B from Party X to Party Y, and that the rest of law is essentially an extension of this basic formula. It is a style that served to preserve Italian Law through many centuries of political instability and rule, but one that is perhaps less suited to a modern democracy, which Italy was, or was becoming, at the time of the First Edition.
How does this argument look 50 years later, when Italy is entering its third generation as a more-or-less functioning democracy, and globalization is (at least in theory) reducing or eliminating the differences between national cultures? That is the question that I and my co-authors (Francesco Parisi and Pier Giuseppe Monateri) attempted to answer in producing a Second Edition to the beloved, but aging, Cappelletti treatise. We made the task easier--or perhaps harder--on ourselves by agreeing to maintain as much of the original text as possible, correcting only obviously outdated sections and introducing only those developments (the European Union, the constitutional court, the rather extensive changes in Italian criminal procedure) that could not possibly be avoided. Even so, the project has taken us a few years, with the book scheduled to appear this summer or fall.
Of course the question that we posed--do legal systems have a particular style and (if so) can it survive globalization--does not have a simple answer. But a short answer to the question would be: more than you think. For all the talk of Europeanization/globalization, we found that Italy remains distinct from other countries in legal education, the legal profession, and the style of reasoning by both judges and law professors. If one wants a pithy quotation, it would be that the words of Italian law are increasingly the same as those in other countries, but the music remains frequently, even defiantly, different. For more detail--not to mention footnotes--you'll have to buy the book.
Sunday, March 1, 2015
Although crime rates in the U.S. have decreased for over two decades, our prison population remains high. One cause is the high recidivism rates of ex-offenders. Although there are many causes of recidivism, one critical barrier facing ex-offenders is their inability to gain steady employment. The widespread availability of criminal records in this country, coupled with government policies that enforce significant collateral consequences on offenders, stymie ex-offenders’ ability to get back on their feet.
Although the American narrative of shaming and punishment (as well as racism) has played a role in driving the “othering” of criminal offenders, one significant difference between the barriers faced by ex-offenders in the U.S. and Europe can be traced to the more robust policy of free speech in the U.S. coupled with weaker data privacy protections.
In a 2011 article, Dara Lee compared recidivism rates in various state-level jurisdictions in the U.S. and found that the availability of online records lead to an 11% increase in recidivism among ex-offenders.
In contrast, countries like Spain protect an individual’s right not to be subject to publicity about their criminal convictions. Seeking to protect individual privacy, even Spanish newspapers typically only use the accused individual’s initials. The 1995 Penal Code reiterates the country’s long-standing policy that the National Conviction Registry is not accessible to the public. As a general rule, only prosecutors, judges, and judicial police may access the registry. The two exceptions to this rule included the limited access granted to the police responsible for passport control and the Guardia Civil as part of the gun permit process. Court documents related to a conviction are not available to the public. Interestingly, Spanish legal scholars have argued that publicity concerning a punishment itself may constitute an additional punishment and, in some cases, would make a punishment disproportionate to the crime itself. The lack of access to conviction records extends to employers as well. Because conviction records are considered to be private, very few employers are permitted to ask applicants to provide information about those records. The prominent exceptions are applications to work in the law enforcement area or in government administration.
Appelbaum, Binyamin. “Out of Trouble But Criminal Records Keep Men Out of Work,” New York Times, February 28, 2015.
Laurrari, E. (2011). “Conviction Records in Spain: Obstacles to Reintegration of Offenders?” European Journal of Probation 3(1): 50-62
Lee, Dara. (2011). “The Digital Scarlett Letter: The Effect of Online Criminal Records on Crime.”
Thursday, February 26, 2015
A recent UK report recommending the adoption of on-line resolution of low-value civil disputes contains a fascinating look at various on0line dispute resolution systems currently operating in various jurisdictions. These systems are designed to improve access to justice for those who cannot afford the exhorbitant cost of in-court litigation. Indeed, while several of the existing systems address civil claims of various kinds, one of them permits the resolution of low-level criminal charges, like traffic violations, and permits, among other things, the uploading of evidence. Food for thought, as the unavailability of affordable legal solutions in the United States now extends beyond the traditionally poor and well into the middle class.
To read the full report, please click on the following link:
Monday, February 23, 2015
Why is one country’s law different from another’s? In answering this question comparative lawyers—like political scientists, historians, or international chefs--turn inevitably to the concept of culture. But culture is a notoriously squishy term, and getting a handle on it is an inherently elusive task.
The dictionary defines culture as “the integrated pattern of human knowledge, belief, and behavior that depends upon the capacity for transmitting knowledge to succeeding generations.” An alternate definition is “the customary beliefs, social forms, and material traits of a racial, religious or social group,” while a third is “the set of shared attitudes, values, goals, and practices that characterizes an institution or organization.” The first thing that one notices is the tension between attitudes and institutions. While laymen tend to think in terms of attitudes and behaviors—Germans are efficient, Italians are emotional, the British keep a stiff upper lip—professional anthropologists often emphasize institutions, which are both shaped by attitudes and (in turn) pass them on to future generations. In my research on comparative taxation, I have found institutions, like the tax legislative process and the role of nonpartisan tax experts, as or more important than popular attitudes in determining tax outcomes.
Law and anthropology is less popular than (say) law and economics, but it may well be more persuasive. Most frequently, it has been applied to areas of law, like marriage, divorce, property succession, and (perhaps) criminal law, in which the differences between cultures are most obvious. But there is a large and growing body of “L and A” work in corporate law and other nontraditional areas. The work of Annelise Riles, whose numerous publications include Documents: Artifacts of Modern Knowledge, and Collateral Knowledge: Legal Reasoning in the Global Financial Markets, is especially influential in this area. Other important names include Douglas Holmes, who has written on the anthropology of finance, and Hiro Miyazaki, who has done field work on subjects ranging from Fijian land owners to derivative traders at a Japanese securities firm. That the latter two are anthropology rather than law professors suggests the wide-ranging nature of the subject.
Like any interdisciplinary subject, law and anthropology is tough sledding, requiring a knowledge of two distinct subjects and (for comparativists) two or more legal systems. There is an inevitable tension between theory on the one hand and “thick description,” a la Clifford Geertz, on the other. Like comparative law generally, it may be a better subject to pursue after tenure than before it. But the rewards are incalculable.
Friday, February 20, 2015
We take pleasure in sharing a link to the annual European Law Faculties Association Conference in Istanbul, Turkey, April 16-19, 2015. For additional information, please click on the link below.
Thursday, February 19, 2015
American English has an expression, less in vogue now than in the recent past, but still in current use: "get real." It's most often used to urge someone to stop fooling themselves about something; also sometimes used to urge someone to stop trying to push the limits of credulity with someone else. In basic Property I teach a case, Middler v. Ford Motor Company, that is explicitly about fakes getting real. This case of unauthorized commercial impersonation tests the possibility of a person asserting property rights -- in this case, singer Bette Middler and the timber of her voice -- in her own "realness." Piracy, a familiar bête noire of intellectual property doctrine and international trade policy, depends on the distinction between real and fake in its attempts to trade in them.
The problem of imposters is interesting on broader grounds. In the American academy these days, most of us are social constructivists. That makes fakes, when it comes to people's practices, a puzzle. If we consider social life and social facts "constructed," or "performed," then there is no such thing as an a priori authentic self; there are merely dramatic realizations of idealized personas, performances that may or may not be accepted by audiences under different conditions. Ok. So no a priori real, no a priori fake. But what about the imposter, the one whose present performance is parasitic on an ideal whose definitional parameters the performer himself does not consider himself to have met? This is a problem raised by some of the practices Jacqueline Ross studies, those of police informants, that I find just fascinating. How much crime may (or must) an informant engage in to create trust with criminals before being considered a criminal himself? How much performance under those circumstances makes the informant herself liable for criminal prosecution?
In Ukraine last winter, during a period of street protests on the central square (the Maidan) against an oligarchic president favored by the incumbent Russian government, protesters who felt their story was not being accurately reported (or suppressed altogether) started their own websites and information distribution systems to get the word out. "Hromadske tv" ["Citizen tv], an internet broadcast channel. Babylon 13, an indy film crew producing short documentary films on citizen resistance, aired via the internet. EuroMaidan News, a print reporting service distributed mostly via its facebook page.
In short order, demonstrators and others noticed parallel press reports and then, on occasion, whole organizations presenting obfuscating or just plain wrong versions of "news" events. On many occasions, reports hostile to the protesters or their cause seemed to repeat similar tropes -- false statements such as the Maidan protesters were all fascists or Nazis. Some of the false reporting seemed clearly coordinated. One late midde-aged woman, for example, interviewed in the southern city of Odessa was identified as a native Russian speaker of Odessa scared of Ukrainian fascists. The very same person later showed up in other footage, interviewed as a "local native" hundreds of miles away -- in Kharkiv, then in cities in southeastern Ukraine -- each time identified as a different local resident, each time under a different name, as a different persona, excoriating protests on different grounds: here a Russian speaker claiming (falsely) protesters were imposing Ukrainian language, there a local pensioner scared by young protester hooligans, elsewhere a nostalgio-loyalist rejoicing in Russian moves on Crimea. Efforts like this one, conducting interviews in different places and placing them as different stories in media newsfeeds, takes the practice known in the U.S. as "astro-turfing" -- hierarchical national organizations like political parties installing fake local "grassroots" -- to a new level. The specious reporting assumed giant proportions in the regional mediaspace. Many associated it with the government of Russia. Some Maidan activists set up a channel to blow the whistle on fake news reports that they call Stopfake. (You can see their website here, at www.stopfake.org/en .) I admire their energy. For the literal-minded, as many of us in law are, combatting an infinite regress of funhouse mirror reflections seems exhausting.
Another channel of fake reporting or intentional shaping of public opinion has come through internet trolls. The Atlantic and others have reported on an army of trolls on Russian government payroll whose job it is to surf the internet and social media and post comments on threads to cast doubt or sew confusion. The Russian government is not the only party in the region deploying such tactics. Stopfake just published in interview with a troll formerly employed by one of the Ukrainian oligarchs to lurk and post. Again, this goes beyond "spin," ham-handed attempts of professional p.r. representatives, who publicly self-identify as such, to characterize events in a certain way favorable to the goals of one political party or another. These are people posing as innocent bystanders or disinterested parties whose job it is to, under that guise, shape discourse and worldviews. They are not spin-doctors. They are imposters: they are pretending publicly to be something they are not and their performance is parasitic on the "real." (It's a fascinating symptom of the infinite regress problem that Stopfake includes an explanatory label on the section of its website that posted the troll interview: "News in the section 'Context' are not fakes. We publish them in order to keep you informed about events concerning the information war between Ukraine and Russia." The Munich Security Conference that opened today (February 6) takes as its topic "Hybrid War," including the "information war" in which authentic and fake play such starring roles.
A facebook a page calling itself "Zero Anthropology" shows up in my stream in defiance of most facebook algorithms. (For example, I have never "liked" a post, nor shared a post, of theirs, yet it bumps family members out of priority in my feed.) That leads me to believe that Zero Anthropology may be paying facebook for placement in my feed, although it is not labeled a "sponsored post" as other commercial posts typically are. I am not bothered much about any of this. It's easy to ignore. I am awfully curious, though. Every post by Zero Anthropology that I've seen is an "inside ball" scathing comment on U.S. foreign policy (or, on rare occasion, British and its colonial legacy). It reads, in short, like a screed composed by writers with an agenda of discrediting the U.S. government and its allies. One wonders if their on a payroll. I have yet to see a single note of anthropological analysis in Zero Anthropology. In fact, the name "Zero Anthropology" may be the most authentic thing about it.
Another problem of "the real" that has recently resurfaced in Ukraine are reports of infiltrators: that under the former Yanukovych regime, Russian government personnel purposefully infiltrated the ranks of Ukrainian executive- and legislative- branch structures. These personnel, installed during the presidency of a Russian government ally or client, found themselves well if precariously positioned after the rapid turn events last February when Yanukovych abdicated and the public voted in a new government less amenable to working closely with Russia in the governance of Ukraine. News from Ukraine today reports the arrest of two military officers on the grounds of their being Russian infiltrators feeding classified military information to opposing combatants whom Ukrainian government troops are fighting in eastern Ukraine. (Of course, the news organization reporting the arrests is "Ukraine Today," an entity set up by the Ukrainian government to counter the aggressive media efforts of the Russian government through its news organization, Russia Today.)
Sometimes the stakes are puzzlingly, or laughably, low: if Zero Anthropology , for example, indeed proves a fake, I would be curious about (or concerned for) whatever entity is spending money in attempt to influence the facebook community of English-capable anthropologists. As one, I freely admit such an effort hardly targets the corridors of great political power or wealth. At other times, for example infiltration of criminal groupings by police informants, the risks and possible rewards are greater. Infiltrating officer ranks during a war raises the stakes yet higher.
 See Erving Goffman, Performances, in The Performance of Self in Everyday Life.
 See, e.g., Jacqueline E. Ross, The Elusive Line between Preventive and Repressive Undercover Investigations in Germany: An Empirical Study, in Police and the Liberal State 136-156 (Markus Dubber ed., 2008); Jacqueline E. Ross, The Place of Covert Policing in Democratic Societies: A Comparative Study of the United States and Germany, 55 American Journal of Comparative Law 493 (2007).
 Daisy Sindelair, "The Kremlin's Troll Army," The Atlantic (August 12, 2014).
 See, e.g., Adam Taylor, "The Troll War for Ukraine: Tweets and Blogs to Push the Message," The Washington Post (Mar. 6, 2014) (reporting on Russian government trolls and U.S. government use of social media to shape opinions in the region).
 "How to Identify and Spot Internet Trolls: An Interview with a former Akmetov's bot" (January 31, 2015) available at http://www.stopfake.org/en/how-to-identify-and-recognize-internet-trolls-an-interview-with-a-former-akhmetov-s-bot/.
 Judy Dempsey, "Europe's Losing Information War," Judy Dempsey's Strategic Europe (Feb. 6, 2015) available at http://carnegieeurope.eu/strategiceurope/?fa=58998 .
 "Ukraine Military Official Arrested: Chornobai Accused of Giving Information to Milittants," Ukraine Today (Feb. 5, 2015) available at
Thursday, February 12, 2015
A fascinating judicial dialogue recently took place between the European Court of Human Rights (ECHR) and the U K Supreme Court concerning the admissibility of hearsay evidence. A look at that discussion illuminates how the ECHR handles its role with respect to its constituent countries. For us in the United States, it also shows how the United States Supreme Court’s approach to hearsay stands uniquely against that of other countries.
The exchange between the ECHR and the U K Supreme Court involves two cases: Al-Khawaja and Tahery v . United Kingdom1 and R. v. Horcastle & Ors..2 In the first, Al-Khawaja and Tahery v. United Kingdom, the ECHR held there were two requirements before hearsay evidence could be admitted: (1) there had to be good reason for non-attendance of the witness (so-called unavailability) and (2) to put it briefly, there had to be sufficient safeguards against unreliability. Significantly, however, the Court held that where hearsay evidence is the “sole or decisive” evidence supporting a conviction, its admission constitutes a violation of the right to a fair trial under Article 6 of the European Convention of Human Rights,3 regardless of the presence or efficacy of safeguards. That case was sent back to the United Kingdom’s domestic courts; domestic courts are then required to take ECHR judgments “into account.”
Meanwhile, the U K Supreme Court decided R. v. Horncastle & Ors.. While the Court noted that the requirement to “take into account” the Strasbourg decisions normally results in domestic courts applying the principles laid out by the ECHR, the Supreme Court nevertheless held that there were rare occasions where the Supreme Court could refuse to follow the ECHR and “give the Strasbourg court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg court.”4 It did so in Horncastle, and concluded that the hearsay was not the sole or decisive evidence in the case. And even if it had been, the Court held that “there were sufficient counterbalancing factors to compensate for any difficulties caused to the defense….”
The ECHR then reached the same decision in Horncastle. As a result, the ECHR’s original holding, that where hearsay is the sole or decisive evidence supporting a conviction that conviction violates Article 6, was modified so that the “sole or decisive rule” should not be applied inflexibly.
It is so interesting to see how the Strasbourg Court, which reviews cases from different countries and different systems, must and does, in fact, take many different national interests into account. This is really a case in which the United Kingdom’s Courts took the opportunity to explain the particular safeguards against hearsay in the UK system to the Strasbourg Court.
Incidentally, these decisions also show how the United States Supreme Court’s Sixth Amendment approach to the admission of hearsay in Crawford v. Washington5 is so obviously based on our Constitutional text. Anyone reading Justice Scalia’s decision knows that. However, the contrast to the balancing and fairness that is currently the law in Europe – and, incidentally, was the law in the United States before Crawford – is made absolutely crystal clear.
- Al-Khawaja and Tahery v. United Kingdom,  ECHR 2127, http://www.bailii.org/eu/cases/ECHR/2011/2127.html.
- R. v. Horncastle & Ors.,  UKSC 14, http://www.bailii.org/uk/cases/UKSC/2009/14.html.
- Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art. 6, http://conventions.coe.int/treaty/en/treaties/html/005.htm.
- Horncastle, at ¶ 11.
- Crawford v. Washington, 541 U.S. 36 (2004), available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-9410#opinion1.