April 7, 2012
Why NZ Director's Reference to the "Oprahfication" of the Courtroom was Really a Jab at the "Pussification" of the Courtroom
I'm not a huge fan of victim impact statements. These statements typically used to consist of family members taking the witness stand during the sentencing phase of a murder trial and explaining the character of the victim and what his or her loss meant to the family and the community. Now these statements more typically involve DVDs with montages of photographs showing the victim from birth until just before death, evocative music in the background from artists as varied as Enya and the Beatles, and voiceover narration from a family member. There are of course several problems with such statements, not the least of which is that they can tend to enforce the notion that some lives are more equal than others. A rich victim from a supportive family will likely have several witnesses willing and able to take the witness stand and describe how much the victim meant to them, creating a good likelihood of a lengthier sentence (or death) for the defendant. Meanwhile, the homeless victim without much of a support system likely won't have (m)any people willing or able to take the stand and vouch for his or her character, likely resulting in a lighter sentence.
Conversely, I love the idea of restorative justice.
Restorative justice is an umbrella term for various voluntary, nonadversarial processes that try to bring together offenders, crime victims, and others to repair the material and intangible harms caused by crime. For example, victim-offender mediation induces offenders to speak with their victims face-to-faceabout their crimes. Family group conferences use trained facilitators to encourage discussions among the families of offenders and victims. Circle sentencing encourages offenders, victims, their friends and families, members of the community, and criminal justice professionals to discuss and agree upon a sentence. Community reparative boards are panels of citizens that discuss crimes with offenders and work out restitution plans. Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. Rev. 911, 917 n.12 (2006).
Therefore, in theory, I should like the argument made by Kim Workman, the Director of Rethinking Crime and Punishment in New Zealand. So, what's the problem?
Workman recently made an oral submission to the Justice and Electoral Select Committee in connection with the Victims of Crime Reform Bill. Workman spoke out against the excesses of victim impact statements, arguing that
Committee that great care and wisdom will be needed to prevent rhetorical appeals to victims’ suffering to deteriorate into a public skewering of the offender....
"Providing a better service to victims does not always translate into better practise. It would be to the ultimate detriment of the victim if the opportunity to tell the offender in the courtroom how the crime has affected them, became an exercise in retribution. While many victims believe at the that they will feel better for it, research shows that victims who take revenge in this way have often felt worse off than if they had done nothing at all."
Workman then touted the virtues of restorative justice, noting that
Our experience with restorative justice conferences tells us that the victim’s decision to meet with an offender is driven by one of three things. Firstly, they want to talk about the harm they have suffered, to challenge the offender about their actions, , and have them respond. Secondly, they want to understand why the offender committed the offence, their motivation, and personal circumstances. Thirdly, they want to assess whether the offender is genuinely sorry for what happened.
Finally, Workman advocated for restorative justice instead of traditional victim impact statements, recommending
that instead of a victim reading out a statement, a private facilitated meeting be held between the offender and victim, at which the victim was free to make their feelings known within acceptable limits, and the offender had the opportunity to respond. The outcome of the meeting would then be reported back to the Court, achieving the same purpose as a Victim Impact Statement, but in a way that was more satisfying to the victim.
All of this sounds terrific and a proposal that I would readily endorse. But let's go back to Workman's disparaging of victim impact statements. With regard to victim impact statements, Workman claimed that
"At its worst, it could lead to the "Oprahfication" of the Courtroom, with the TV cameras capturing every twitch of the offender for signs of defiance or remorse, and the New Zealand viewing public casting their votes accordingly."
I don't know about readers, but this strikes me as an incredibly misogynistic statement. Workman's statement reads to me as if he is saying, "At its worst, it could lead to the "Pussification" of the Courtroom. Now, this might seem harsh, but I don't see any other way to construe Workman's statement. In essence, he's saying that the same people -- women -- who watch and are emotionally effected by Oprah Winfrey are likely to be unduly influenced by victim impact statements into making irrational verdicts.
Now, maybe Workman didn't explicitly say this, but let's read between the lines. Why else would Workman invoke Oprah Winfrey (in a disparaging manner) if not to claim that we must protect women from victim impact statements? The Oprah Winfrey Show was all about bringing people face-to-face with their adversaries and trying to get them to reach some type of understanding of each other. What I regard as the most (in)famous episode of the show was when Winfrey went to Forsyth County and taped an episode on race relations in which KKK members and minorities explained their positions to each other.
In other words, The Oprah Winfrey Show is much more in the vein of restorative justice than it was in the vein of the traditional victim impact statement. Moreover, Oprah is a big advocate of restorative justice and has done episodes on the subject. Workman's invocation of the "Oprahfication" of the Courtroom in connection with the traditional victim impact statement thus makes no sense unless viewed as a general attack on women.
April 6, 2012
Article Of Interest: Anderew Jurs' Questions from the Bench and Independent Experts: A Study of the Practices of State Court Judges
In 1993, in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the United States Supreme Court drove a stake through the heart of the old Frye test for the admissibility of expert evidence at the federal level. That old Frye test allowed for the admission of expert evidence as long as the technique or technology had general acceptance in the relevant expert community, and one of the criticisms of the test was that it allowed for the admission of "junk science." For instance, under Frye, a court would be constrained to allow for the admission of testimony by an arson expert as long as the expert followed techniques that had general acceptance in the arson investigation community, even if those techniques couldn't withstand outside scrutiny.
Daubert replaced Frye with the concept of the judicial gatekeeper, under which judges would dig beneath the "general acceptance" veneer and determine whether practices such as latent fingerprint identification, arson investigations, and the comparisons of tool marks, bite marks, handwriting, and non-DNA hair samples were truly reliable. Two of the tools in a judges arsenal are Federal Rule of Evidence 614, which allows for judicial interrogation of witnesses (including expert witnesses), and Federal Rule of Evidence 706, which allows for judicial appointment of expert witnesses. But to what extent have judges applying Daubert used these tools? And has Daubert increased judicial reliance on these rules as judges become judicial gatekeepers? These are some of the topics addressed by Drake Law School Professor Andrew Jurs in his article, Questions from the Bench and Independent Experts: A Study of the Practices of State Court Judges (Pittsburgh Law Review, forthcoming)Professor Jurs' article relays the results of a survey that he sent to state court judges in Iowa, Nebraska, and North Dakota, which he
selected due to several factors. First, each of the three selected states have Rules of Evidence for judicial questioning and independent experts that are nearly identical to each other and the Federal Rules of Evidence. Second, the states occupy a similar geographic area which may limit any effect of regional or cultural differences on the use of these techniques. Finally, the states included represent a variety of approaches on scientific gatekeeping standards. North Dakota uses the Frye standard, Nebraska follows Daubert, and Iowa has a third approach. With the different rules, this study could then compare the use of different techniques in jurisdictions with different scientific admissibility standards.
The results? A treasure trove of information about how judges use or do not use Rule 614 and Rule 706. For instance, Professor Jurs breaks down the data by gender, years of experience on the bench, and geographic location (urban vs. rural). And he also breaks it down by which expert admissibility test the judge applies. Here are the two relevant charts in this regard:
So, does Daubert increase judical questioning of expert witnesses under Rule 614 and judicial appointment of experts under Rule 706? According to Professor Jurs, the answer is "not really." There was no statistical significance in the number of judges asking questions of expert witnesses and the frequency with which judges asked such questions across the 3 states (and judges in Nebraska, the Daubert jurisdiction, were behind judges in North Dakota in both categories). Meanwhile, there was a slight statistical difference between the number of judges appointing experts and the frequency of appointment in Nebraska, the Daubert jurisdiction, and Iowa, the Frye jurisdiction. But there was no statistically meaningful difference between Nebraska and North Dakota or North Dakota and Iowa.
Thus, according to Professor Jurs, "[b]ased on the data, the standard for admissibility of expert testimony appears to have little effect on the overall use, or frequency of use, of the advanced factfinding methods in Rule 614 and Rule 706."
I wanted to do this study for several reasons:
1) Update prior research in the area, which relies on surveys performed in the 1990's (Krafka: 1998 & 1991; Dobbin: 1999) or is even older (Cecil & Willging: 1988). This includes both the gatekeeping/factfinding methodology studies of Krafka (federal) and Dobbin (state), but also the Cecil & Willging study (surveys 1980's) on why independent experts are not used;
2) See if the use of these methodologies varies based on scientific admissibility standard (some general research says that both Frye-state and Daubert-state judges have similar views on gatekeeping, and I wanted to see if that was true with specific methodologies);
3) Examine if any factor besides scientific admissibility standard had an effect on the use of these methods; and
4) Determine the judges' opinion of why independent experts are rarely used (update Cecil & Willging).
While it is a small study (and notes this), it does help examine all of these issues - sometimes with startling results.
April 5, 2012
We The Jury, Take 5: Illinois Approves Procedure For Jury Questioning During Civil Trials
Last year, I posted an entry about Illinois considering codifying a a procedure for jury questioning during civil trials. That proposal will soon become a reality. Effective July 1, 2012, Illinois Supreme Court Rule 243 will take effect:
Rule 243. Written Juror Questions Directed to Witnesses
(a) Questions Permitted. The court may permit jurors in civil cases to submit to the court written questions directed to witnesses.
(b) Procedure. Following the conclusion of questioning by counsel, the court shall determine whether the jury will be afforded the opportunity to question the witness. Regarding each witness for whom the court determines questions by jurors are appropriate, the jury shall be asked to submit any question they have for the witness in writing. No discussion regarding the questions shall be allowed between jurors at this time; neither shall jurors be limited to posing a single question nor shall jurors be required to submit questions. The bailiff will then collect any questions and present the questions to the judge. Questions will be marked as exhibits and made a part of the record.
(c) Objections. Out of the presence of the jury, the judge will read the question to all counsel, allow counsel to see the written question, and give counsel an opportunity to object to the question. If any objections are made, the court will rule upon them at that time and the question will be either admitted, modified, or excluded accordingly.
(d) Questioning of the Witness. The court shall instruct the witness to answer only the question presented, and not exceed the scope of the question. The court will ask each question; the court will then provide all counsel with an opportunity to ask follow-up questions limited to the scope of the new testimony.
(e) Admonishment to Jurors. At times before or during the trial that it deems appropriate, the court shall advise the jurors that they shall not concern themselves with the reason for the exclusion or modification of any question submitted and that such measures are taken by the court in accordance with the rules of evidence that govern the case.
According to the Committee Comments,
This rule gives the trial judge discretion in civil cases to permit jurors to submit written questions to be directed to witnesses ̄a procedure which has been used in other jurisdictions to improve juror comprehension, attention to the proceedings, and satisfaction with jury service. The trial judge may discuss with the parties’ attorneys whether the procedure will be helpful in the case, but the decision whether to use the procedure rests entirely with the trial judge. The rule specifies some of the procedures the trial judge must follow, but it leaves other details to the trial judge’s discretion.
According to the press release accompanying passage of the new rule,
The rule is not unique to Illinois. More than half of all the states and all of the federal circuits permit jurors to submit written questions for witnesses with or without the discretion of the trial judge, said proponents of the measure.
That press release also details exactly how the rule will work:
The procedure will work this way: At the conclusion of questioning of a witness by attorneys, the trial judge will determine whether the jury will be afforded the opportunity to question the witness. If questions are deemed appropriate by the trial judge, jurors will be asked to submit any question they have for the witness in writing. No discussion regarding the questions is allowed between jurors. The bailiff will collect any questions and present them to the judge who will mark them as exhibits and make them part of the record.
The judge will read the questions to all the attorneys outside the presence of the jury, and give counsel an opportunity to object to the question. The trial judge will rule on any objections and the questions will either be admitted, modified or excluded.
The trial judge will ask each question that is permitted and will instruct the witness to answer only the question presented. The judge will then provide all counsel with an opportunity to ask follow-up questions limited to the scope of the new testimony.
I've written before about the reasons why I support jury questioning, and I think that Illinois is making the right emove by allowing it.
April 4, 2012
Avoiding A Conflict: Supreme Court Of Louisiana Finds No Actual Conflict Of Interest Despite Co-Counsel Being Investigated
Let's say that a defendant is charged with first degree murder. And let's say that one of his appointed attorneys was initially under investigation for an unrelated crime by the same District Attorney prosecuting the defendant. If the District Attorney's office recused itself from investigating or prosecuting the defendant's co-counsel and the state Attorney General's Office took over those duties, is there an actual conflict of interest? According to the recent opinion of the Supreme Court of Louisiana in State v. Carter, 2012 WL 206430 (La. 201), the answer is "no."
In Carter, the facts were as stated above, with Terrance Carter being convicted of first degree murder. After he was convicted, Carter appealed because, inter alia,
one of his two appointed trial attorneys, Daryl Gold, labored under a potential conflict of interest in that counsel himself was facing possible charges in an unrelated criminal offense at the time of defendant's trial— charges that would be prosecuted by the Louisiana Attorney General's Office.
Carter did "not allege any specific actions counsel took or failed to take as a result of the potential conflict of interest; instead, he contend[ed] the risk of a potential conflict was great, such that the trial court inadequately inquired into the conflict and failed to obtain a valid waiver of conflicted counsel...."
In response, the Supreme Court of Louisiana noted that Carter's case was not a typical conflict of interest case but cited Anne Bowen Poulin, Conflicts of Interest in Criminal Cases: Should the Prosecution Have a Duty to Disclose?, 47 Am.Crim. L.Rev. 1135, 1162–77 (2010), for the proposition that
A potential conflict may also arise when counsel himself is under criminal investigation or has been charged with criminal conduct, especially if the suspected or alleged conduct is related to counsel's representation of the defendant or the charges against counsel are being investigated or prosecuted by the same prosecutor who is trying counsel's client.
Of course, as noted, in Carter, Carter's co-counsel was initially being investigated by the same DA's office prosecuting Carter, but that DA's office recused itself from co-counsel's case so that it could be investigated by the state AG's office. According to Carter, this was irrelevant because "the Attorney General oversees the district attorneys, including...the office prosecuting defendant...."
The Supreme Court of Louisiana disagreed, finding that
Although the defendant argues the Attorney General oversees the district attorneys, including...the office prosecuting defendant, any potential conflict of interest remains only that, a potential one, as there was no showing the Attorney General's office had any direct or indirect role in the actual prosecution of defendant on the Red River Parish murder charge. In this case, counsel was under investigation by a different prosecutor and the pending charges against counsel were not related in any way to the murder charge against the defendant or counsel's representation of the defendant; therefore, the risk of a potential conflict of interest was greatly attenuated.
As support for this point, the court again cited Professor Poulin's article, but I'm not sure that the article fully get the court to its conclusion. Here's the key portion of Professor Poulin's article:
By contrast, some circumstances will diminish the risk of conflict. If the investigation of counsel is wholly unrelated to the charges against the defendant, the court is less likely to find a conflict. Similarly, if a different prosecutor's office has jurisdiction over the investigation of counsel, the argument for giving defendant post-conviction relief or for disqualifying counsel is far weaker. For example, in Taylor v. United States, the defendant was prosecuted and convicted in federal court. After his conviction, counsel was indicted on state charges. Given the lack of relationship between the two prosecutors' offices, the defendant was unable to establish the necessary nexus between counsel's own difficulties with the criminal justice system and his representation of the defendant. Consequently, the court held that no conflict of interest interfered with counsel's representation. The appearance of fairness would have been better served had the issue been raised early in the process. If confronted with the issue early in the defendant's case, the court might have been willing to remove counsel, avoiding both the post-conviction challenge and the appearance that counsel may not have been able to provide excellent representation.
It's clear that Carter and his co-counsel were being investigated for 2 completely unrelated crimes, which supports a finding of no actual conflict of interest. But unlike in Taylor, Carter and his co-counsel were not being investigated by two different sovereigns (federal and state). Instead, they were both being investigated by Louisiana state authorities, they were initially being investigated by the same DA's office, and, at the time of trial, co-counsel was being investigated by the office overseeing the office prosecuting Carter. I still probably agree with the Supreme Court of Louisiana that this wasn't enough to create an actual conflict of interest, but I think that it was a closer call than the court's opinion would lead us to believe.
April 3, 2012
That's One Interpretation: WDVa Finds Presumption Of Regularity Applies To Interpreters
Assume that a defendant is charged in a twenty-nine count indictment stemming from a crack cocaine conspiracy. And assume that after the defendant is convicted and sentenced, he brings a motion to vacate, set aside, or correct his sentence. Part of the basis for his motion is that he doesn't speak English and that the interpreter who translated the trial proceedings for his benefit failed to communicate to his trial counsel that he had voiced an intent to exercise his Fifth Amendment right to testify. How difficult will it be for the defendant to prove that the interpreter acted improperly? According to the recent opinion of the United States District Court for the Western District of Virginia in Michel v. United States, 2012 WL 102000 (W.D.Va. 2012), the answer is "pretty difficult."
In Michel, the facts were as stated above, with Adelson Michel claiming that his Haitian Creole interpreter failed to communicate his intent to exercise his Fifth Amendment right to testify to his trial attorney. In addressing this argument, the Western DIstrict of Virginia initially noted that
A number of state courts have recognized that "[t]here is a rebuttable presumption that an interpreter in the course of performing his official duty has acted regularly."...Furthermore, a limited number of federal courts have likewise recognized that, "upon a collateral attack, an...interpreter is cloaked with the presumption of regularity, which 'allows a court to assume that an official or person acting under oath of office will not do anything contrary to his or her official duty.'"
Moreover, the court found that
even without this supporting authority, a presumption of propriety should accompany a court interpreter in the performance of his or her official duties. The law recognizes many presumptions that place the onus to adduce rebuttal evidence on the party attacking the presumption....
In support of its belief that the law should reflect a presumption of propriety in favor of court interpreters, the court notes that courts in general have recognized that various professionals are entitled to presumptions that they perform their duties accurately.... This court is of the opinion that court interpreters should likewise be accorded such a presumption in the execution of their official duties. Court-appointed interpreters qualify for service based on their ability to satisfy certain objective standards....In addition to qualifying for service, federal court interpreters must "give an oath or affirmation to make a true translation."...
Based on the requirements that court interpreters must satisfy certain objective standards and must take an oath to translate truthfully, and based on the decisions of other courts assigning similar presumptions to other qualified professionals, this court holds that court interpreters are entitled to a presumption that they execute their official duties with propriety, accuracy, and integrity. To rebut this presumption, an individual must adduce specific evidence of impropriety by the interpeter.
Having found this new "interpreter presumption," the court found that it was fatal to Michel's motion. According to the court,
Applying this presumption of propriety to the facts of the instant case constrains the court to conclude that Michel has adduced no specific evidence demonstrating impropriety by the court interpreter at trial. Although Michel alleges that the court interpreter failed to convey to [his trial attorney] the invocation of Michel's right to testify, Michel conceded, after further probing by Judge Crigler at the evidentiary hearing, that he, in fact, did not know whether the interpreter conveyed his request to [his trial attorney], because the trial transcript did not reflect such communications....Hence, by Michel's own admission, he lacks any specific evidence that the interpreter failed to communicate to [his trial attorney] his invocation of his right to testify. For this reason, Michel has failed to overcome the presumption of propriety in favor of the court interpreter who served at his trial.
April 2, 2012
I Lost On Jeopardy: Is Exculpatory Blood/DNA Evidence Considered "Exclusionary Evidence"?
On Friday's episode of JEOPARDY!, the $1,000 answer in the Solve for "Ex" category was, "If the murderer had blood type A, finding that a suspect has type O is this kind of evidence." One contestant gave the question of "What is exclusionary?" Alex Trebeck deemed this question to be incorrect. Another contestant then buzzed in and gave the question of "What is exculpatory?" That was deemed to be the correct question. Later in the episode, Alex told the first contestant that the staff had reviewed the response and deemed it to be correct based upon recent legal publications. So, was this correction correct, and is the term "exclusionary evidence" something that courts, litigants and scholars do use in connection with blood/DNA evidence?
Dr. William Shields, a professor of Biology at State University of New York in Syracuse, who testified for the defense as an expert in the area of DNA in a forensic context, testified about the general use of forensicDNA. Dr. Shields opined that a laboratory that did its validation studies on Profiler Plus at 150 RFUs, and later lowered its RFU values to 100 without doing additional validation studies, would not be following proper scientific procedure. The manufacturer of Profiler Plus recommends an RFU cutoff of 150. The FBI laboratory uses a 200 RFU cutoff for inclusionary evidence, and will go down to 50 RFU for exclusionary evidence. A danger in lowering the RFU cutoff is that it becomes difficult to tell the difference between real peaks and false peaks. Analysis at less than 200 RFUs suggests a degradation of or small amounts of the DNA specimen; the results in such a case would not necessarily be reliable. (emphasis added)
Meanwhile, Hicks v. Ballard, 2010 WL 6230434 (S.D.W.Va. 2010), contains an example of a litigant using the phrase:
The DNA evidence excluding Petitioner from the blood evidence on the shoe was new to Petitioner and was not available at the 2004 (first) state habeas hearing. The 2007 (second) state habeas court completely overlooked this new exclusionary evidence and summarily dismissed Petitioner's Zain III claim, holding that the state court had already addressed Petitioner's arguments about the materiality of the DNA evidence and its effect on Petitioner's jury trial in the 2004 (first) habeas hearing. The state court's reasoning is fundamentally flawed, in that it refused to recognize the importance of the new exclusionary evidence developed since the first habeas hearing. The resulting summary dismissal resulted in a complete miscarriage of justice and explains why the claim was not developed on the record and fully adjudicated at the state level. (emphases added).
Finally, J. Brent Alldredge, Federal Habeas Corpus and Postconviction Claims of Actual Innocence Based on DNA Evidence, 56 SMU L. Rev. 1005 (2003), contains an example of a scholar using the phrase:
While concerns regarding states' rights, judicial conservation, and the value of finality in the criminal justice system are still valid, DNA testing poses a serious challenge to the other commonly-accepted restrictions on federal habeas corpus. For example, the arguments favoring the strong presumption that a verdict is correct and the likelihood that more accurate determinations of guilt or innocence diminishes with time are weakened by the advent of DNA testing. The presumption that verdicts are correct is contradicted by the fact that there is a growing number of cases that have been vacated by exclusionary evidence resulting from DNA testing. It also appears that the results of DNA testing not only maintain their evidentiary significance over extended periods of time, but also increase in probative value as "technological advances and growing databases amplify the ability to identify perpetrators and eliminate suspects." (emphasis added).
April 1, 2012
What's Your Emergency?: 9th Circuit Finds Mother's 911 Call About Son's Abuse Of GF Admissible
Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for
A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
So, let's say that a mother comes home and finds her son's pregnant girlfriend beaten and bloodied. If she calls 911 and describes the girlfriend's condition and the son's whereabouts, do her statements qualify as excited utterances? According to the recent opinion of the Ninth Circuit in United States v. Gomez, 2012 WL 1026066 (9th Cir. 2012), the answer is "yes."
In Gomez, the facts were as stated above, with Phillip Gomez being the son/defendant charged with assault and kidnapping. At trial, the prosecution introduced the 911 conversation. After he was convicted, Gomez appealed, claiming, inter alia, that the conversation did not qualify as an excited utterance and that its admission violated the Confrontation Clause because his mother did not testify.
With regard to the hearsay argument, the Ninth Circuit found that he mother's
statements to the 911 dispatcher, made almost immediately after [she] first saw [the girlfriend] in a beaten and bloody state, were properly admitted under the excited utterance exception. See Fed.R.Evid. 803(2). Although [the mother] did not witness the assault, the "event" continued until [the girlfriend] received emergency care, and [the girlfriend]'s "condition" no doubt caused [the mother] great stress as reflected in her 911 call. Accordingly, admitting her statements under Rule 803(2) was not an abuse of discretion.
And with regard to the Confrontation Clause argument, the court found that the mother's statement was nontestimonial because
She was not describing an event in the past but rather seeking help to alleviate an ongoing emergency. [The girlfriend] required air evacuation to a hospital where she remained for treatment for a week. Moreover, the dispatcher's questions were aimed at soliciting information on [the girlfriend]'s condition, providing directions on how to help her, and identifying the name and possible location of the assailant. Thus, the admission of these nontestimonial statements was proper.