In March 2015, lawyer Dora Monserrate-Peñagaricano was representing a client in a deposition hearing in the U.S. District Court for Puerto Rico when she complained aloud to a colleague that the room was hot.
Tuesday, May 16, 2017
Using data on 1,901 U.S. Supreme Court oral arguments between 1998 and 2012, we document that voice-based snap judgments based on lawyers’ identical introductory sentences, “Mr. Chief Justice, (and) may it please the Court?”, predict court outcomes. The connection between vocal characteristics and court outcomes is specific only to perceptions of masculinity and not other characteristics, even when judgment is based on less than three seconds of exposure to a lawyer’s speech sample. Consistent with employers irrationally favoring lawyers with masculine voices, perceived masculinity is negatively correlated with winning and the negative correlation is larger in more masculine-sounding industries. The first lawyer to speak is the main driver. Among these petitioners, males below median in masculinity are 7 percentage points more likely to win in the Supreme Court. Justices appointed by Democrats, but not Republicans, vote for less-masculine men. Female lawyers are also coached to be more masculine and women’s perceived femininity predict court outcomes. Republicans, more than Democrats, vote for more feminine-sounding females. A de-biasing strategy is tested and shown to reduce evaluators’ tendency to perceive masculine voices as more likely to win. Perceived masculinity explains 3-10% additional variance compared to the current best prediction model of Supreme Court votes.
Friday, April 14, 2017
“You’re not getting menopause, I hope,” interjected the opposing lawyer, Camilo Salas, in front of 14 other, mostly male, lawyers.
Monserrate bridled at his comment. And in a sanctions hearing several months later, U.S. District Judge Francisco A. Besosa also chastised Salas for it, quoting the American Bar Association report First Chairs at Trial: More Women Need Seats at the Table to emphasize the comment’s discriminatory nature and negative impact: “An ABA report published this year,” stated the judge, “identified ‘inappropriate or stereotypical comments’ directed at female attorneys by opposing counsel as one of the causes of the marked underrepresentation of women in lead trial attorney roles.”
It’s not the only time that the First Chairs report—which examines why there is a dearth of women lawyers in lead counsel and trial counsel posts and what to do about it—has been cited in sanction hearings. Since its release in 2015, this first-of-its-kind study, published as a joint project of the American Bar Foundation and the ABA Commission on Women in the Profession (CWP), seems to be having the precise effect that its coauthors hoped it would.
“I think having judges call that behavior out, and having a study that they can rely on,” is a powerful tool for change, says coauthor Roberta D. Liebenberg, a former chair of the CWP and a senior partner at Philadelphia-based Fine, Kaplan and Black, R.P.C. Stephanie A. Scharf, who heads the litigation practice at the women-owned Chicago firm Scharf Banks Marmor LLC, served as Liebenberg’s coauthor.
The two began by taking a random sample (608 cases) of all the civil and criminal cases filed in 2013 in the U.S. District Court for the Northern District of Illinois. They examined the cases from the perspectives of (1) type of case, (2) type of practice setting, and (3) type of client. They found that women were consistently underrepresented in lead counsel roles in almost all types of legal settings. Notably, men were three times more likely than women to serve as lead counsel in civil cases. And when surveying criminal cases, the authors found that men were four times more likely than women to serve as trial lawyers.
“You could go into any courtroom and just by being there know that there are not enough women as first chair trial lawyers,” Liebenberg says. “But because we did the statistics, the thing has really taken off. It’s been cited by several courts in sanctioning lawyers for biased behavior, like during a deposition. It’s been cited in a law review article. It’s been cited by The Wall Street Journal and the New York Times. And it really shows you how important the statistical backup is—to validate what we can all see with our eyes.”
Friday, March 24, 2017
Tonja Jacobi & Dylan Schweers, Justice, Interrupted: The Effect of Gender, Ideology and Seniority at Supreme Court Oral Arguments, 103 Virginia L. Rev. (forthcoming 2017).
This Article studies how the justices compete to have influence at oral argument, by examining the extent to which the Justices interrupt each other; it also scrutinizes how advocates interrupt the Justices, contrary to the rules of the Court. We find that judicial interactions at oral argument are highly gendered, with women being interrupted at disproportionate rates by their male colleagues, as well as by male advocates. Oral argument interruptions are also highly ideological, not only because ideological foes interrupt each other far more than ideological allies do, but we show that conservatives interrupt liberals more frequently than vice versa. Seniority also has some influence on oral arguments, but primarily through the female justices learning over time how to behave more like male justices, avoiding traditionally female linguistic framing in order to reduce the extent to which they are dominated by the men.
For another report reaching a similar conclusion, see Study Shows Male Justices Interrupt Female Justices More During Oral Argument
Thursday, March 16, 2017
Amy Cohen & Aya Gruber, Governance Feminism in New York's Alternative "Human Trafficking Intervention Courts"
In New York’s new Human Trafficking Intervention Courts (HTICs), mostly female defendants are prosecuted for prostitution-related offenses and then offered social services in lieu of more traditional criminal justice sentences. These alternative problem-solving courts represent a reconceptualization of the status of prostitution defendants in the New York criminal court system: formerly regarded as low priority, quality-of-life offenders, they are perceived by the HTICs as presumptive victims of gender-based violence. This chapter explores the role that feminists, holding a range of views on commercial sex, played in the creation of these new courts even as it argues that virtually no feminist position — liberal, abolitionist, sex worker — should condone the arrest of women for selling sex. It explores how some feminists embraced the courts as depoliticized providers of services while others made strategic decisions to work with the new courts despite clear ideological misgivings. As such, the chapter argues, the HTICs raise questions endemic to all governance feminism projects: when and why is it worth it to compromise feminist aims?
Co-author Amy Cohen also has a second article on the history of the New York prostitution courts. Trauma and the Welfare State: A Genealogy of Prostitution Courts in New York City, Texas L. Rev. (forthcoming).
At least since the early twentieth century, informal specialized prostitution courts have tried to double as social welfare agencies. For this reason, prostitution courts illustrate in particularly explicit ways how public welfare administration and criminal court administration share similar ideas and practices and how these ideas and practices reinvent themselves over time. The article traces three moments of prostitution court reform in New York City: the New York Women’s Court that opened in Manhattan in 1910, the Midtown Community Court that opened in Manhattan in 1993, and four new prostitution courts that opened in New York City in 2013. It examines how court reformers in each moment use informal procedure to promote social welfare, social control, and individual responsibility, and it ties each approach to changing conceptions of the American welfare state. Ultimately, the article argues that the genealogy of prostitution courts illuminates for the present how court reformers are using the language of trauma to negotiate the welfare logics of today.
See also Mae Quinn, Ann Moscowitz Kross and the Home Term Part: A Second Look at the Nation's First Criminal Domestic Violence Court, 41 Akron L.Rev. 733 (2008)
Tuesday, February 28, 2017
Lorraine Kokinchak v. Postmaster General (3d Cir. Feb. 3, 2017)
Even if we were to consider the unexhausted allegations of sexual harassment, the behavior Kokinchak complains about falls short of the sort of conduct courts have said constitutes hostile work environment sexual harassment. See, e.g., Harris, 510 U.S. at 19-20; Meritor, 477 U.S. at 60-61. All of these allegations—those exhausted and unexhausted—consist merely of Brents's presence near Kokinchak. As the Postmaster General points out, Kokinchak “does not allege that Brents ever touched her sexually, was physically threatening, made lewd or inappropriate comments, or even that Brents spoke to her at all.” Appellee Br. at 24. Even considering Brents's status as someone Kokinchak formerly accused of harassment, no instance of Brents's occasional and sporadic presence near Kokinchak could rationally be considered severe, and together they occurred too infrequently—a few occasions spanning years—to be pervasive. While they may have been subjectively unwelcomed by Kokinchak, an objective person could not conclude they altered the terms and conditions of her workplace. Title VII does not create “a general civility code for the American workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Instead, Title VII prohibits actual “discriminat[ion] because of sex.” Id.
Second, we agree with the District Court that there is no per se rule of hostile work environment when a plaintiff is forced to work in proximity with a former harasser. A plaintiff must prove hostile work environment using the five prong test described above, which includes showing the conduct was “severe or pervasive.” Mandel, 706 F.3d at 167.
Monday, February 13, 2017
Adam Feldman & Rebecca Gill, Echoes from a Gendered Court: Examining the Justices' Interactions during Supreme Court Oral Arguments
Abstract:Supreme Court oral arguments are the only publicly scheduled opportunities for the Justices and advocates to directly engage in discussions about a case. There are few rules to regulate these conversations. Within this unique setting and due to the lack of argument structure combined with the limited time allotted to each argument, the Justices vie for chances to speak, sometimes at the expense of utterances from other Justices. In this Article we examine how the Justices’ genders dictate much of the Justices’ interactions and ultimately the power structure of oral argument.
This Article shows how gender is an embedded characteristic of the oral arguments and how the Justices’ appropriations and perceptions of gender roles create disparities in the balance of authority on the Court. The Article’s analysis shows a major gap between male Justices’ interruptions of female Justices and female Justices interruptions’ of male Justices during oral arguments. After discussing why this is problematic, the Article offers suggestions for how the Court can reduce these interruptions through institutional reforms. The Article’s analyses corroborate conversational and power dynamics previously elucidated by sociolinguists, but also extend those findings to the insular environment of the United States Supreme Court.
Tuesday, February 7, 2017
Ruth Bader Ginsburg spent a large portion of her legal career advocating for women’s rights and was appointed as the second female justice to the Supreme Court in 1993. In this animated interview, she describes attending law school with a 14-month-old baby at home. Ginsburg attributes some of her career successes to her husband’s flexibility and the experience of being a mother. “I think I had better balance, better sense of proportions of what matters,” she says. "I felt each part of my life gave me respite from the other.”
This interview was conducted by Ryan Park for his story "What Ruth Bader Ginsburg Taught Me About Being a Stay-at-Home Dad".
Tuesday, January 31, 2017
Hannah Brenner & Renee Newman Knake, Shortlisted, UCLA Women's L.J. (forthcoming)
Abstract:Mildred Lillie fortunately had no children, as the New York Times noted in 1971, and even in her fifties, maintained “a bathing beauty figure.” Lillie was not, however, a swimsuit model. She was one of President Nixon’s possible nominees to the United States Supreme Court. Shortlisted tells the stories of nearly a dozen extraordinary women considered for the Court, but ultimately not nominated, before Justice Sandra Day O’Connor became the first in 1981. The public nature of the nomination process enables us to analyze the scrutiny of these women by the profession and media, and analogize to those similarly not selected, elected, or appointed to political office, corporate governance, the judiciary, law firm partnership, and other positions of power. We find that the stories of those women who did not attain these various power roles are as compelling as those who did. Our work builds upon and transcends previous scholarly work on the theory of the “leaking pipeline” — i.e. that women enter the profession in numbers equal to men but do not advance — and dispels the persistent myth that there is a dearth of sufficiently qualified women. The framework for this project, exploring decades of women shortlisted to the Court pre-O’Connor from Presidents Roosevelt to Reagan, allows gender bias to be viewed in a vibrant historical context and illuminates ideas for future advancement of women in law and beyond. Shortlisted explores the gendered experiences of this elite group of women — both professional and personal — and situates their stories within the context of gender, judging, and the legal profession. This project is one of first impression. We are the first scholars to identify and assess these women together in light of their shared experience of being shortlisted. Their individual and collective stories have largely gone untold. Until now
Tuesday, January 17, 2017
Blurring the Boundaries of Unjustified Impact and Disparate Treatment in Employment Sex Discrimination Cases
Deborah Brake, The Shifting Sands of Employment Discrimination: From Unjustified Impact to Disparate Treatment in Pregnancy and Pay, Georgetown L.J. (forthcoming)
Abstract:In 2015, the Supreme Court decided its first major pregnancy discrimination case in nearly a quarter century. The Court’s decision in Young v. United Parcel Service, Inc., made a startling move: despite over four decades of Supreme Court case law roping off disparate treatment and disparate impact into discrete and separate categories, the Court crafted a pregnancy discrimination claim that permits an unjustified impact on pregnant workers to support the inference of discriminatory intent necessary to prevail on a disparate treatment claim. The decision cuts against the grain of established employment discrimination law by blurring the impact/treatment boundary and relaxing the strictness of the similarity required between comparators in order to establish discriminatory intent.This article situates the newly-minted pregnancy discrimination claim in Young against the backdrop of employment discrimination law generally and argues that the Court’s hybrid treatment-by-impact claim is in good company with other outlier cases in which courts blur the boundaries of the impact/treatment line. The article defends the use of unjustified impact to prove pregnancy discrimination as well-designed to reach the kind of implicit bias against pregnant workers that often underlies employer refusals to extend accommodations to pregnant workers.While Young is not likely to prompt an earthquake in employment discrimination doctrine, this article identifies and defends a parallel development in the law governing pay discrimination that similarly incorporates unjustified impact into a disparate treatment framework. This move has already begun in some lower courts and is a central feature of the primary focal point of legislative reform, the proposed Paycheck Fairness Act. As is the case with pregnancy discrimination, pay discrimination largely stems from implicit judgments devaluing women as workers rather than conscious decisions to disfavor women because of their sex. Importing the Young theory of unjustified impact into the pay claim is necessary to make it a more viable tool for reaching the kind of bias that manifests as pay discrimination in the modern workforce. The insights developed in this article from exploring the theory and doctrine in Young provide support for the parallel development that is on the cusp of taking hold in the equal pay claim.The article concludes with some thoughts about why, given the malleability in fact, if not in judicial rhetoric, of the treatment and impact categories, disparate treatment provides the preferable grounding for these developments. Doctrinal advantages aside, the disparate treatment framing of pregnancy and pay discrimination claims best resonates with the social movement work of contesting the gender ideologies at the heart of these injustices.
Female Judges Alone are Not a Sufficient Condition for Promoting Women's Rights: The Example of Ghana
Josephine Dawuni, To Mother or Not to Mother: The Representative Roles of Women Judges in Ghana, J. of Africa Law.
Abstract:Feminist scholars have debated questions of gender and judging by focusing on variables such as representation, difference, diversity and legitimacy. While illuminating, most of these studies are by scholars in the global north. More research is needed to understand issues of gender and judging in the global south. This article adds to existing literature by asking whether women judges promote women's rights. Through in-depth interviews with women judges in Ghana, the article demonstrates that women judges do promote women's rights. The article presents a new method of analysis: exploring the dichotomy between direct and indirect modes of representing women's rights. Recognizing the importance of substantive representation and the contributions of female judges in promoting women's rights, it argues that female judges are not a sufficient condition for promoting women's rights. Necessary conditions include laws guaranteeing women's rights, working partnerships with women's civil society organizations and an enabling socio-cultural climate.
Monday, January 9, 2017
I have just published the essay Reconsidering the Remedy of Gender Quotas, Harv. J. Gender & Law (online) (Nov. 2016). It takes on the question of the legality of instituting a more permanent, structural reform for gender equality through the judicial mechanism of quotas.
Rather than stumbling along the path of continued sex discrimination by the ineffective application of judicial Band-Aids to systemic problems, it is time for alteration of the power structure itself. It’s time for the law to endorse the equal representation of women in all power venues in order to remedy—permanently—longstanding, resistant systemic sex discrimination.5 And the way to achieve this goal of gender parity might be quotas.
“Quota” is a dirty word. In U.S law and society, we are “quota-phobic,” vehemently resisting an idea alleged to be based on political correctness in place of merit. Quotas, however, offer a powerful systemic remedy that can reach entrenched bias and provide meaningful and tangible change - virtually overnight as Canadian Prime Minister Justin Trudeau's cabinet decision of 50/50 shows.
A quota remedy would require gender parity—proportional representation of women in positions of power. The proportion would match the gender distribution of the general population; so women as about 51% of the population should constitute 51% of the managers, boards, CEOs, legislatures, and law firm partners, as well as STEM majors and law students. Judges too, would then be 51% women (although Justice Ruth Bader Ginsburg suggested she would not stop there, opining that the Supreme Court would have the right number of women justices “[w]hen there are nine.”).
This article first demonstrates the longstanding ineffectiveness of other remedies for systemic sex discrimination and the power quotas potentially offer. It then discusses the use of gender quotas for European corporate boards, academic advisory boards, and political representatives to show the viability of gender quotas as a legal solution. Finally, it concludes that gender quotas as a judicially-imposed remedy would survive constitutional scrutiny under the Supreme Court's existing intermediate scrutiny standard.
Gender quotas have been highlighted in several places recently, including:
The Newsweek writers' settlement portrayed in the TV series (and book) "Good Girls Revolt"
The ABA Rule mandating diverse CLE panels
Friday, January 6, 2017
The West Virginia Supreme Court will have a female majority for the first time when Beth Walker takes the bench next week.
Walker will join Justices Margaret Workman and Robin Davis in making West Virginia one of 11 top courts that will have a majority of justices who are women in 2017.
Other states with a female majority are Arkansas, California, Maryland, Massachusetts, Minnesota, New Mexico, New York, Tennessee, Washington and Wisconsin.
Tuesday, November 8, 2016
Ann Gordon, The Trial of Susan B. Anthony, Federal Judicial Center (2005)
United States v. Susan B. Anthony was a criminal trial in the federal courts. In the federal election in November 1872, Anthony, the best-known advocate of woman suffrage, registered to vote and then voted. The government charged her with the crime of voting without “the legal right to vote in said election district”—she, in the words of the indictment, “being then and there a person of the female sex.” Her trial revealed the complexity of federalism in the post-Civil War years. She was convicted in federal court under federal law for violating state law about who was eligible to vote. New York state law prohibited women from voting, and a recent federal law provided for the criminal prosecution of anyone who voted in congressional elections “without having a lawful right to vote.”
Primarily a case about woman suffrage and sexual discrimination, United States v. Susan B. Anthony is also a case about Reconstruction and the balance of federal and state authority. Prior to the Civil War, the demand for woman suffrage was directed to state governments, each of which set the qualifications of voters in the respective states. Reconstruction redirected the demand. The federal government assumed some authority over the voting qualifications enacted by the states, and woman suffragists saw in that change an opportunity to extend voting rights not only to black men but also to black and white women. They called for universal suffrage.
Anthony and the members of the National Woman Suffrage Association, after failing to gain explicit reference to the voting rights of women in the Fourteenth and Fifteenth Amendments, set about testing the meaning of what those amendments did say and how the amendments might have changed the rights of women. Anthony was among a group of women in the country trying to establish, through test cases in the federal courts, that the amendments had so redefined citizenship and rights that women were protected by the federal government in their right to vote.
(Cartoon mocking SBA for wanting to vote)
Remarks by Susan B. Anthony in the Circuit Court of the Northern District of New York, June 19, 1873
As a matter of outward form the defendant was asked if she had anything to say why the sentence of the court should not be pronounced upon her.
"Yes, your honor," replied Miss Anthony, "I have many things to say. My every right, constitutional, civil, political and judicial has been tramped upon. I have not only had no jury of my peers, but I have had no jury at all."
Court—"Sit down Miss Anthony. I cannot allow you to argue the question."
Miss Anthony—"I shall not sit down. I will not lose my only chance to speak."
Court—"You have been tried, Miss Anthony, by the forms of law, and my decision has been rendered by law."
Miss Anthony—"Yes, but laws made by men, under a government of men, interpreted by men and for the benefit of men. The only chance women have for justice in this country is to violate the law, as I have done, and as I shall continue to do," and she struck her hand heavily on the table in emphasis of what she said. "Does your honor suppose that we obeyed the infamous fugitive slave law which forbade to give a cup of cold water to a slave fleeing from his master? I tell you we did not obey it; we fed him and clothed him, and sent him on his way to Canada. So shall we trample all unjust laws under foot. I do not ask the clemency of the court. I came into it to get justice, having failed in this, I demand the full rigors of the law."
See also Doug Linder, Famous American Trials: The Trial of Susan B. Anthony and Trial Record in the Case of Susan B. Anthony
Thursday, November 3, 2016
These are dangerous times for judicial appointments, according to Sally J. Kenney, an expert on judicial selection and social movements.
Kenney, the author of the book “Gender and Justice: Why Women in the Judiciary Really Matter," was the keynote speaker for “The U.S. Feminist Judgments Project."
. . . .
Kenney said it is important that more women and minority men serve on the bench, and that it is no longer enough that judges are well qualified.
“We need to know what their positions are on domestic violence and sexual assault,” she said. “Do they believe boys need their fathers even if those fathers were batterers? And joint custody puts mothers at risk? Do they believe women routinely lie about domestic violence in divorce cases or sexual assault in general? Do they easily dismiss women’s fear of stalkers and harassers? Do police officers and those serving in the military who are more likely than the general population to be batterers deserve to retain their firearms even after threatening intimates?”
Judges should consistently uphold rules even when those rules go against the political party of the president who appointed them, Kenney said, adding that senators should be held accountable for failing to do their job.
“No one disputes whether Merrick Garland is qualified. No one thinks he has extreme political views,” she said. “Now it appears senators can just say ‘no.’”
Kenney also said it is important that judges be willing to change positions when confronted with social facts.
“I think we should be able to demand that judges be the most distinguished members of the legal profession, without having to turn them into deductive machines or robots or think of them as neutrals,” she said.
“I also believe the issue is not the difference women make on the bench, but the message their absence sends,” she added. “It is important to have women and minority men on the bench.
Monday, October 31, 2016
Which means the Salem Witch Trials.
Most of the victims of the trials were women. And most of the accusers. Scholars have talked about the trials as misogyny and at the same time as women's assertion of agency and power. They also suggested the lax evidentiary standards allowed social judgments about women to be determinative of legal guilt.
Stacy Schiff, The Witches: Salem, 1692 (2015)
Carol Karlsen, The Devil in the Shape of a Woman (1998)
Jane Moriarty, Wonders of the Invisible World: Prosecutorial Syndrome and Profile Evidence in the Salem Witchcraft Trials, 26 Vermont L. Rev. 43 (2001)
Mary Beth Norton, In the Devil's Snare: The Salem Witchcraft Crisis of 1692 (2003)
Peter Hoffer, The Salem Witchcraft Trials: A Legal History (1997)
Thursday, October 27, 2016
[W]hite and male victims often receive larger awards than people of color and women in similar cases, according to more than two dozen lawyers and forensic economists, the experts who make the calculations. These differences largely derive from projections of how much more money individuals would have earned over their lifetimes had they not been injured – projections that take into account average earnings and employment levels by race and gender.
The debate over this use of demographic averages pits two tenets of the American justice system – fairness and accuracy – against each other.
Martha Chamallas, a law professor at Ohio State, called the practice reminiscent of “something Ruth Bader Ginsburg and civil rights advocates [fought] in the 1960s.” Jennifer Wriggins, a law professor at the University of Maine, said it “reinforces past discrimination and pushes it out into the future and endorses it.”
Defenders say it is the most accurate way to make calculations about the losses people incur when they are injured. “If there’s a difference in society, it is what it is. It’s a difference, and the economist’s job is to figure out what would have happened,” said James Woods, a forensic economist in Houston.
Tuesday, October 18, 2016
The first oral argument of the Supreme Court’s new term this month delivered something so rare as to be practically nonexistent: gender equality.
Debating an obscure question about the constitutional principle of double jeopardy were five men, all justices of the Supreme Court, and five women: the three female justices and the two female lawyers who took turns at the lectern for their respective clients.
Wednesday, October 5, 2016
Beverley Baines, Women Judges and Constitutional Courts: Why Not Nine? in Constitutions and Gender (Helen Irving, ed. forthcoming)
Abstract:We should take Justice Ruth Bader Ginsburg’s question “Why not nine women?” seriously. Justice Ginsburg has served on the United States Supreme Court since 1992 and her proposal is for an all-women Court. Western democracies do not appear poised to adopt her proposal; nor have they endorsed the prevailing proposals for parity by feminist scholars Erika Rackley and Sally Kenney or for feminist judges by Rosemary Hunter and Beatriz Kohen. To explain why these proposals had some initial successes but are now stagnating, I frame them as deploying a “strategy of containment”, a strategy defined by Jamie R. Abrams to explain the loss of efficacy of feminist domestic violence reform. Situating Justice Ginsburg’s proposal as “moving beyond the strategy of containment”, I draw on women’s judgments in Australian, Canadian, German, Indian, Indonesian, Israeli, South African, British and American constitutional cases about or with significance for women’s equality. Whether writing as the only, often the first, woman on a national “constitutional” court, or deciding cases where more than one woman justice wrote a judgment, the richness of their adjudicative diversity demonstrates that women can comprehensively perform the tasks of adjudicating constitutional cases. Far from posing a threat to democracy or the rule of law, the legacy of women jurists’ voices illustrates how they promote constitutional justice for women and men.
Thursday, September 1, 2016
Robert Hardaway, Domestic Violence and the Confrontation Clause: The Case for a Prompt Post-Arrest Confrontation Hearing, 22 Cardozo J.Law & Gender 1 (2015)
In the years leading up to the 2004 Supreme Court decision in Crawford v. Washington, a prosecutor could pursue a domestic violence case and introduce the prior accusatory testimonial statement of the victim even if the victim refused to appear at trial, declined to testify at trial, retracted a prior statement made to police, or claimed lack of memory about the events described in her prior statement. Introduction of a prior statement was permissible if the victim was unavailable, and the statement bore "adequate indicia of reliability" as indicated by falling within a "firmly rooted hearsay exception" or satisfied "particularized guarantees of trustworthiness." In Crawford, the Supreme Court overruled Ohio v. Roberts, holding that admission of a prior victim statement complied with the Confrontation Clause only if the victim was unavailable, and the defendant had a "prior opportunity to cross-examine." Critics of Crawford claimed that it initiated an "open season" on domestic violence victims by giving the defendant spouse an irresistible motive to escape justice by intimidating, threatening, or even killing the victim prior to the victim being becoming subject to cross-examination at trial.
It has been noted that the cause of justice pays a high price for insuring the right to physically confront a witness at trial-which may take place months or even years after the arrest of the defendant-because it provides the accused with ample time to intimidate or threaten potential witnesses against him. Defendants in domestic violence cases quickly realize that without a testifying witness at trial, the case against him must be dismissed no matter how hideous the crime of which he is charged.' Witness tampering appears to work in favor of perpetrators, particularly in domestic violence cases, because 80-90% of victims do not cooperate with prosecutors in domestic violence cases. These cases include instances in which a witness mysteriously disappears prior to trial, declines to testify, or refuses to cooperate with the prosecution. This has proved to be of particular concern in domestic violence cases in which a battered spouse declined to testify for a variety of reasons, including purported lack of memory, a fear of retribution either admitted or suspected, a plea for understanding from the prosecutor of a victim's desire to preserve the family unit, or a claim that the defendant has changed his ways and propensity for violence and is unlikely to repeat his crime.
It is the aim of this article to propose a more effective means of eliminating a defendant's motive to intimidate or harm domestic violence victims who may be witnesses against the defendant at trial by providing defendants in domestic violence cases with the right to cross-examine a complaining witness at a confrontation hearing convened promptly after the defendant's arrest. Such a procedure would both comply with the Crawford requirement of a "prior opportunity to cross-examine" while reducing the time in which a defendant can devise means of making the victim unavailable for trial.
Wednesday, August 31, 2016
Angela Riley, Crime and Governance in Indian Country, 63 UCLA L Rev. (forthcoming)
Abstract:Criminal jurisdiction in Indian country is defined by a central, ironic paradox. Recent federal laws expanding tribal criminal jurisdiction are, in many respects, enormous victories for Indian country, as they acknowledge and reify a more robust notion of tribal sovereignty, one capable of accommodating increased tribal control over safety and security on Indian reservations. At the same time, the laws make clear that sovereignty comes at a price, potentially working to effectuate further assimilation of tribal courts and Indian people. As a result, at the same time that tribal sovereignty gains ground in ways critical to autonomy and self-governance, it is simultaneously threatened by exogenous forces that have the potential to homogenize tribal justice systems legally, politically, and — in particular — culturally.
This Article offers the first comprehensive assessment of the Tribal Law and Order Act and the reauthorization of the Violence Against Women Act, respectively, to show how they relate to one another on the ground and the implications for tribal sovereignty and self-determination. Ultimately, based on data compiled for the first time as well as extensive secondary sources, I argue that expanded criminal jurisdiction and punishment authority have, perhaps paradoxically, enhanced the ability of tribes to develop and enforce policies, laws, and procedures that are consistent with tribal custom and tradition. This presents a unique opportunity worthy of further exploration. In other words, rather than sovereignty and assimilation expanding in tension with one another, I find that the application of the laws has been experienced in tribal communities, as least anecdotally and preliminarily, as greatly enhancing — not threatening or destroying — tribal sovereignty and Indian cultural survival.