We are often told that “justice is color blind. But research continues to expose the fallacy of this contention, particularly when it comes to subconscious bias. And where must we worry about bias as affecting judgment? Consider these two statements: 1. “A [drug detection] dog’s… reliability is established for the purpose of admitting the
It will come as no surprise that judges are not automatons, oblivious to emotion or extraneous information when making decisions. To the contrary, the literature is filled with examples, such as the increase in sentences (particularly for black youth) if the judge’s football team lost the previous weekend. https://www.thecut.com/2016/09/judges-give-harsh-sentences-when-their-football-team-loses.html So one question is whether judges
On Friday, November 17 the Cardozo School of Law presented a conference titled “25 Years of the Innocence Project: Impact on Law, Policy and the Courts.” This author discussed eyewitness testimony and the IP’s impact on reducing the risk of erroneous identification convictions. The below summarize the views that were offered. The phenomenon
In the hey-day of hippies and LSD, a critical phrase was ‘you’re either on the bus or off the bus.” Loosely translated, it meant you were either “with it,” i.e. fully along for the ride, or you were being left behind. But for the world of trial advocacy, the phrase can have a decidedly different
Lawyers ‘get’ scales. The scales of justice. The scales that are tipped ever-so-slightly when the preponderance burden of proof is explained. Indeed, that quantitative weighing is core to a civil case adjudication, and when mishandled may cause error and reversal: the district court judge erred when he interrupted counsel’s argument and informed the jury
Two recent reports confirmed what experience has shown. Bad lawyering in criminal cases is to be blamed not merely on individual attorneys – the proverbial “few bad apples” – but on a systemic tolerance of underperforming. This was brought home, first, when a federal judge in Maine concluded that a criminal conviction would not be
At the end of a lengthy (or even not-so-lengthy) trial, an exhaustion factor creeps in and the fatigued lawyer sits back as jury instructions are read. But attention must be paid, especially when a judge extemporanizes. The failure to do so may allow an unconstitutional jury instruction to slip past. This is best illustrated in
Factfinders – judges and juries – rely on a witness’ claim of first hand knowledge. “I looked down the street and saw X occur.” And indeed, personal knowledge is a legal prerequisite for all except expert testimony. Yet too few lawyers take the fundamental and essential step of standing in the shoes of the percipient
Much is lost by the audience when lawyers speak to [or “at,” which is even worse] jurors. As one article concluded, “the human mind does not always act like a sponge. In the legal setting, lawmakers, judges, and scholars hope but hardly expect that jurors exhibit perfect retention of trial facts, particularly in complicated trials.”
In one sense the rules on using proof of character to explain conduct are simple – no character evidence in civil cases, some character evidence in criminal cases, and when character evidence is allowed it must be limited to the pertinent trait. There are honest murderers, but no non-violent murderers; and there are violent thieves,