Attorney (and prolific author) Michael Cicchini has been doing some interesting work on Wisconsin’s reasonable doubt instruction, including some empirical research with psychologist Lawrence White. Cicchini has now created a helpful resource page for criminal defense lawyers, which includes not only links to his own research, but also a sample brief and a list of judges who have already adopted modifications to the standard instruction.
Cicchini summarizes the problems with the standard instruction this way:
After explaining the concept of “beyond a reasonable doubt,” this instruction tells the jury “not to search for doubt,” but instead “to search for the truth.”
J.I. 140 is blatantly unconstitutional. First, telling the jury “not to search for doubt” is unconstitutional because, as other states have held, it is the jury’s duty to evaluate the state’s case for reasonable doubt. Second, telling the jury “to search for the truth” is unconstitutional because, as other states have held, it communicates the much lower “preponderance of evidence” standard, i.e., if the charge is merely probably true, the jury should convict.
Jury deliberations are the proverbial black box. After passively receiving the law, evidence, and arguments at a trial, the jurors will retire to discuss the case in secret. When they return with a verdict, no explanation will be required for their decision. Afterward, the jurors will normally be instructed that they need discuss the case with no one. The parties are left to wonder how well the jurors understood the governing law, attended to the key evidence, and faithfully attempted to apply the former to the latter.
Occasionally, the public catches some glimpse of what happens inside the black box. But when this happens, the law’s typical response echoes the famous admonition of the Wizard of Oz: “Pay no attention to the man behind the curtain!” This position is reflected in Federal Rule of Evidence 606(b), which generally prohibits jurors from testifying about their deliberations and thought processes when the validity of a verdict is challenged.
Although it seems perfectly sensible to discourage losing litigants from harassing jurors in the hope of uncovering errors, it is not so clear that the system benefits when judges are required to turn a blind eye to substantial evidence that a jury’s decisionmaking went off the rails. Continue reading “Supreme Court Permits Some Light Into the Black Box of Jury Deliberations”
By guaranteeing criminal defendants the right to confront their accusers, the Sixth Amendment limits the ability of the government to use hearsay evidence against defendants at trial. Importantly, though, the Confrontation Clause only limits the use of statements that are “testimonial” in nature. A pair of Supreme Court cases from 2006 clarified what makes a statement testimonial, but left an important question unanswered. Last week, the Court finally provided an answer (sort of) in Ohio v. Clark.
Clark featured an unusually unsympathetic defendant who was convicted of physically abusing his girlfriend’s two very young children. Continue reading “Ohio v. Clark: The Supreme Court’s Latest Pronouncement on the Confrontation Clause”
Earlier this week, the United States Department of Justice released a scathing report on police and court practices in Ferguson, Missouri. Figuring prominently in the DOJ’s criticisms, Ferguson criminal-justice officials were said to be overly concerned with extracting money from defendants. For instance, the DOJ charges:
Ferguson has allowed its focus on revenue generation to fundamentally compromise the role of Ferguson’s municipal court. The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests. This has led to court practices that violate the Fourteenth Amendment’s due process and equal protection requirements. The court’s practices also impose unnecessary harm, overwhelmingly on African-American individuals, and run counter to public safety. (3)
I don’t know how fair these particular criticisms are, but they echo numerous other criticisms made in recent years about the increasing tendency of the American criminal-justice system to rely financially on a burgeoning array of fines, surcharges, fees, forfeitures, and the like.
Professors Wayne Logan and Ron Wright have a fine recent article on this subject, appropriately entitled “Mercenary Criminal Justice” (2014 Ill. L. Rev. 1175). Continue reading “Mercenary Justice?”
In my previous post, I discussed the Court’s recent Fourth Amendment decisions. Here are this term’s other criminal cases that also center on constitutional issues (excluding habeas decisions):
- Kansas v. Cheever, 571 U.S. __ (2013) (prosecutors could use testimony based on court-ordered mental examination of defendant in order to rebut defendant’s intoxication defense).
- Hall v. Florida, 572 U.S. __ (2014) (in capital case, state may not categorically limit intellectual disability defense to individuals with an IQ score of 70 or lower — see my earlier post here).
- Kaley v. United States, 571 U.S. __ (2014) (when trying to overturn pretrial asset freeze affecting funds to be used for legal representation, defendant may not challenge grand jury’s probable cause determination).
- Martinez v. Illinois, 572 U.S. __ (2014) (after jury empaneled and sworn, judge’s grant of defendant’s motion for “directed findings of not guilty” counted as acquittal for double jeopardy purposes and precluded appeal by state).
A notable recurring theme across this set of decisions is the Court’s desire to maintain a particular competitive balance at criminal trials.
Continue reading “SCOTUS End-of-Term Roundup: The Constitutional Cases”
In 2009, Wisconsin expanded release opportunities for prisoners and established a new Earned Release Review Commission to handle the petitions. But, just two years later, the legislature reversed course, largely repealing the 2009 reforms and abolishing the ERRC. The 2011 revisions effectively returned authority over “early” release to judges. Critics of the ERRC, an appointed body, maintained that it was more appropriate to give release authority to elected judges.
However, last month’s Marquette Law School Poll indicates that Wisconsin voters would actually prefer to put early release into the hands of a statewide commission of experts rather than the original sentencing judge.
Among the 713 randomly selected Wisconsin voters who participated, a 52% majority stated that release decisions should be made by a commission of experts, as opposed to only about 31% who favored judges. An additional 13% stated that both options were equally good. The Poll’s margin of error was 3.7%.
We asked several questions to try to identify more specifically the perceived strengths and weaknesses of both options. Continue reading “Earned Release From Prison: Judges Not Necessarily the Best Deciders”
Daniel Langleben and Jane Campbell Moriarty have an interesting new article that provides background on the use of brain imaging in criminal investigations, discusses obstacles to the use of the technology in courtrooms, and proposes a path forward. The type of imaging at issue is functional magnetic resonance imaging, or fMRI. Some research suggests that fMRI is indeed able to distinguish lies from honest answers during an interrogation. However, at least two courts have excluded fMRI evidence since 2010.
Langleben and Moriarty agree with these courts that there are some significant gaps in the supporting research, especially in light of the evidentiary rule of Daubert v. Merrell Dow Pharmaceuticals:
The most important piece in the puzzle is Daubert‘s “known error rate” standard. Determining the error rates for fMRI-based lie detection requires validation of the method in settings convincingly approximating the real-life situations in which legally significant deception takes place, in terms of the risk-benefit ratio, relevant demographics, and the prevalence of the behavior in question.
Langleben and Moriarty thus propose an ambitious program of clinical trials. They acknowledge that this would involve hundreds of participants and cost millions of dollars, but they believe the technology is promising enough to warrant the investment.
The article is “Using Brain Imaging for Lie Detection: Where Science, Law, and Policy Collide,” 19 Psych., Pub. Pol’y, & L. 222 (2013).
Yesterday, in a long-anticipated move, the Supreme Court finally overturned its 2002 decision in Harris v. United States. The new decision in Alleyne v. United States extended jury-trial rights to mandatory minimum sentences. Justice Breyer’s “flip” from his position in Harris made the difference.
In Apprendi v. New Jersey (2000), the Court held that a defendant has a right to a jury trial regarding the facts that may increase the maximum sentence to which he is exposed. Breyer dissented in Apprendi and has steadfastly maintained ever since that Apprendi was wrongly decided.
Two years later, in Harris, the Court decided not to extend Apprendi to the facts that raise a defendant’s minimum sentence. Breyer was part of the 5-4 majority in Harris, but stated in a concurring opinion that he could see no reason to distinguish increasing the maximum from increasing the minimum. Thus, Breyer’s vote in Harris was simply another vote against Apprendi. This immediately raised the expectation that some day, when Breyer was ready to give up the fight against Apprendi, he would be willing to overturn Harris.
Some day has come. Continue reading “So Long, Harris — Breyer’s on Board”
Federal Rule of Criminal Procedure 11 sets forth various requirements and prohibitions relating to guilty pleas, including a ban on judges participating in plea discussions. If there is a violation, Rule 11(h) specifies that a “variance from the requirements of this rule is harmless error if it does not affect substantial rights” — no harm, no foul. However, at least two circuits have adopted a rule of automatic vacatur of the guilty plea if the judge participated in plea discussions. Other circuits, including the Seventh, have applied the general 11(h) harmless error rule in these situations.
Earlier today, in United States v. Davila (No. 12-167), the U.S. Supreme Court unamimously resolved the circuit split in favor of the general harmless error rule. As the Court saw it, the legal question was an easy one: “[N]either Rule 11 itself, not the Advisory Committee’s commentary on the Rule singles out any instructions [in Rule 11] as more basic than others. And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription . . . .”
The Court declined to adopt any bright-line rules regarding the application of the harmless-error rule: “Our essential point is that particular facts and circumstances matter.” Having determined that the lower court should have applied the harmless-error rule, the Court chose to remand for further consideration of the “particular facts and circumstances.” At the same time, the Court did say, “Had Davila’s guilty plea followed soon after the Magistrate Judge told Davila that pleading guilty might be the ‘best advice’ a lawyer could give him, this case may not have warranted our attention.” The suggestion seems to be that a guilty plea entered “soon after” the judge recommended such a plea would pretty clearly not fall into the category of harmless error. What made Davila’s case more difficult was the three-month delay between the Rule 11 violation and the guilty plea.
My review of Stephanos Bibas’s book The Machinery of Criminal Justice has now been published in its final form on the PENNumbra website. Here is the abstract:
Stephanos Bibas’s new book, The Machinery of Criminal Justice, looks back to colonial-era criminal justice as an ideal of sorts. Criminal trials in that time were a “participatory morality play,” in which ordinary members of the community played a crucial role. In Bibas’s view, the subsequent professionalization of the criminal-justice system, as well as related developments like the introduction of plea bargaining, have led to widespread contemporary distrust of the system. The present essay reviews Bibas’s book and suggests additional reasons besides professionalization why the morality-play model broke down in the nineteenth century. Taking these additional considerations into account, the prospects for reviving the morality-play model may be even dimmer than Bibas recognizes, although a number of his proposed reforms nonetheless appear attractive.
The official citation is “(The History of) Criminal Justice as a Morality Play,” 161 U. Penn. L. Rev. PENNumbra 132 (2013).