Why do we ask members to promise that they will do the impossible?

This is a question raised in a recent The Jury Expert.

Jurors often promise to try their best to set aside prior experiences, attitudes or beliefs. But the desire to do what jurors believe is expected of them does not create the ability to do it. These factors can be reliably “set aside” only when the juror has no need to do so because the juror doesn’t view them as relevant to the case. If the juror perceives a prior experience, attitude, or belief as relevant, research demonstrates it will have some influence on the juror’s decision making by being part of the schema used to evaluate the evidence. Note that the juror’s perception of relevance is the only test that matters here. While attorneys and judges can help jurors make that assessment by clarifying what is or is not involved in the case, their own definitions of relevance are usually not shared by the jurors.

Decades of social science research debunk the assumptions underlying the “set aside” question.[i] More recent neuroscience research dramatically illustrates how outside stimuli trigger immediate reactions in the brain and offer further proof that a request to “set aside” a relevant experience, attitude or belief is asking jurors to do the impossible.[ii] Jurors simply cannot flip a switch and shut off the influence of their own life experiences or well-established attitudes and beliefs.

A recent Florida Supreme Court decision on this issue, Matarranz v. Florida, No. SC11-1617, __ S.3d ___ (Fla. Sept. 26, 20153), illustrates how we often make it hard for jurors to express any doubts about whether they can do the impossible. Many cause challenges end with a question like this: “You said you would try. What we need to know is whether you are really comfortable with that – are you sure you can set that aside?” The Florida Supreme Court made it clear that getting an affirmative answer to that type of question to protect the record does not protect the rights of the litigants, and ordered a new trial.

And so court thought:

Any lawyer who has spent time in our courtrooms, whether civil or criminal, has experienced the frustration of prospective juror expressing extreme bias against his or her client and then recanting upon expert questioning by the opposition, which generates such embarrassment as to produce a socially and politically correct recantation. When a juror expresses his or her unease and reservations based on actual life experiences, as opposed to stating such attitudes in response to vague or academic questioning, it is not appropriate for the trial court to attempt to “rehabilitate” a juror into rejection of those expressions – as occurred here.

In Matarranz, a juror explained that she could not be fair to the defendant because her family’s home had been burglarized during Christmas when she was eight years old, and because one of her family members had been a victim of fraud. The juror further explained that she believed she could set aside her negative feelings and listen to the evidence, but that she had “an old mind in all things” and would prefer not to be forced to do so. Allowing this juror to remain on the panel was error and the court should have excused her for cause despite her rehabilitation concerning her bias.

Share This!

Hide Sites

{ 0 comments }

The Forensics Science Standards Act 2012.

Stalled?  Nope, gone.

The Forensic Science and Standards Act of 2014

Stalled?

Share This!

Hide Sites

{ 0 comments }

Just in over the transom from a very reliable colleague.

A TC told him that the defense is not allowed to have a copy of the SJA pretrial advice because it is a privileged communication.  Apparently the TC is not familiar with the rules – not uncommon.  I do wish they’d read that red paper covered book sometimes.  Strangely, R.C.M. 405(c) contains this language.

(c) Distribution. A copy of the advice of the staff judge advocate shall be provided to the defense if charges are referred to trial by general court-martial  (emphasis added).

It appears that the TC is also not familiar with the common military definition of “shall.”  I remember being told at OIS that when a senior officer says “shall” it means not discretion, and “may” allows some discretion.  But again for the TC’s benefit the Congress (and President) has kindly defined it in another rule.  The Discussion to R.C.M. 103 references 10 U. S. Code 801(28), which states:

(28) “Shall” is used in an imperative sense.

Share This!

Hide Sites

{ 0 comments }

We are told, by the U.S. Supreme Court no less that sex offender registration is a collateral consequence not punishment so does not suffer ex-post facto restraints.  United States v. Kebodoux involves a military person convicted at SPCM.  And within the military we have case law.

But, can registration reach a point where it is in fact punitive.  That’s the point of Prof. Corey Yung’s post here.

[T]he farm bill just signed into law by President Obama includes a provision denying food stamps to certain sex offenders. The provision was inserted by Senator Vitter (who ironically might be a “sex offender” who wasn’t prosecuted for hiring prostitutes) and applies to child molesters and those who commit violent sexual assaults. Notably, there are already bans on drug offenders participating in the program because there is a fear that they might trade food stamps for drugs. For sex offenders, however, it is difficult to think of any non-punitive justification for denying food stamps to sex offenders convicted before enactment of the current law. Even though the courts have bent over backwards to find various restrictions on sex offenders constitutional, it is hard to fathom a theory that would allow the Vitter amendment to be constitutionally applied to those with pre-existing convictions for sex crimes.

If the goal of SOR is to identify for the public possible threats to safety and also keep track for recidivism purposes then should not the program be tailored and limited to that purpose?  Apparently not.

Does this give us a basis to take a new look at military caselaw which generally prohibits or limits consideration of SOR?

In United States v. Riley, 72 M.J. 115 (C.A.A.F. 2013), the court said, “Given the lifelong consequences of sex offender registration, which is a “particularly severe penalty,”the military judge’s failure to ensure that Riley understood the sex offender registration requirements of her guilty plea to kidnapping a minor results in a substantial basis to question the providence of Riley’s plea. [Unites States v. ]Inabinette, 66 M.J. at 322.”   72 M.J. at 122 (emphasis added).  The court also said, “in the context of a guilty plea inquiry, sex offender registration consequences can no longer be deemed a collateral consequence of the plea.”  id.  So why not as to a conviction where there is evidence that it has punitive effects?

The way ahead may be found in McNutt:

Although military judges and members should not generally consider collateral consequences in assessing a sentence, this is not a “bright-line rule.”  In certain circumstances, therefore, it may be appropriate for the military judge to instruct on collateral matters.  In deciding whether the military judge erred in giving such instructions, we will take a flexible approach focusing on the military judge’s responsibility to give “legally correct instructions that are tailored to the facts and circumstances of the case.”  For example, the “availability of parole and rehabilitation programs are issues of general knowledge and concern, and as such they may be instructed upon, especially when requested by the members.”  However, in such a situation, the military judge should then instruct the members that although the possibility of parole exists in the military justice system, “they could not consider it in arriving at an appropriate sentence for [the] appellant.”

United States v. McNutt, 62 M.J. 16 (C.A.A.F. 2005).

As I have indicated to others, the approach must start with a close analysis and presentation of evidence regarding the specific client.  Where does he anticipate living when released from confinement.  If, for example he says Texas, then the various registration requirements are straightforward.  It is true that there are some nuances in Texas, and state to state.  But the larger question on offense, comparison, and type of registration are fairly easy to discern.  Then get an official copy of the statute and it’s requirements as well as the particular website involved, and now the statute referenced by Prof. Yung above.  Present that and argue that this is more than a mere collateral consequence, cite some of CAAF’s language, and argue the punitive effects warrant evidence and argument.

Anyway, that’s a thought for the day.

Share This!

Hide Sites

{ 0 comments }

It’s not a surprise that now the “war” need for flesh and blood is lower, that the size of the force will be lower, and that allegations of misconduct will be a reason for getting below the numbers.

Stars and Stripes has this report.

 The number of U.S. soldiers forced out of the Army because of crimes or misconduct has soared in the past several years as the military emerges from a decade of war that put a greater focus on battle competence than on character.

Data obtained by The Associated Press shows that the number of officers who left the Army due to misconduct more than tripled in the past three years. The number of enlisted soldiers forced out for drugs, alcohol, crimes and other misconduct shot up from about 5,600 in 2007, as the Iraq war peaked, to more than 11,000 last year.

Here’s the bottom line:

When the country needs a lot of troops on the front lines, more people with behavioral problems are allowed to come in and stay. When the military begins to shrink, commanders can be much more selective about who is kicked out and who is allowed to stay.

I recollect at least two bottom-blows during my active duty time when CO’s were directed to identify their bottom 10% of performers and separate them with a general discharge.  That’s certainly the easiest way out of the problem.  So if you thought there was already a zero defect mentality, the numbers prove it.  In the early days of my practice it wasn’t unusual to find CO’s – senior officer and enlisted leaders who had more than one ding in their record.  I doubt that is too common these days.

Share This!

Hide Sites

{ 0 comments }

Another excellent blogger to follow has this post today.

D.Or.: Reasonable expectation of privacy in prescription records, and the third party doctrine does not apply to them

Share This!

Hide Sites

{ 0 comments }

Several items came across the transom today related to my constant meme about the dangers of bias and confirmation bias in investigations and by “forensic” scientists.

First item is a blog at Criminal Law Practitioner, which notes a significant and important change in how photographic line-ups are conducted in Prince Georges County, MD.  This is a potential issue in any number of CID, NCIS, OSI, CGIS, investigations.

On February 9, 2014, the Prince George’s County Police Department (MD) announced that it will start conducting photo lineups using the “double-blind” method.  The new changes will require police officers to institute two safeguards when showing eyewitnesses a photo lineup: (1) police officers must show the witness the photos one at a time, rather than all at once; and (2) the police officer showing the photos must be unfamiliar with the case.  The change is part of an effort to minimize false identifications and subsequently, wrongful convictions.  The accuracy of photo lineups has been a hot topic over the past decade as DNA evidence has been used more frequently to overturn convictions.  A recent study by the innocence project found that eyewitness misidentification plays a role in over 75% of convictions overturned by DNA testing, making it the single greatest cause of wrongful convictions nationwide.

Wrongful Convictions blog alerts us to the work of Itiel Dior.

Here is a link to an interesting piece, “Ignorance is Bliss,” which discusses a potential for confirmation bias in forensic examinations.  This isn’t actually a new topic among legitimate scientists, and relates to the double-blind issue in regard to photo line-ups.

 Dr Dror’s and Dr Hampikian’s experiment presented data from a real case to 17 DNA examiners working in an accredited government laboratory in North America. The case involved a gang rape in the state of Georgia, in which one of the rapists testified against three other suspects in exchange for a lighter sentence, as part of a plea bargain. All three denied involvement, but the two DNA examiners in the original case both found that they could not exclude one of the three from having been involved, based on an analysis of swabs taken from the victim.

As is almost always true in forensic-science laboratories, these examiners knew what the case was about. And their findings were crucial to the outcome because in Georgia, as in many other states, a plea bargain cannot be accepted without corroborating evidence. However, of the 17 examiners Dr Dror and Dr Hampikian approached—who, unlike the original two, knew nothing about the context of the crime—only one thought that the same suspect could not be excluded. Twelve others excluded him, and four abstained.

Though they cannot prove it, Dr Dror and Dr Hampikian suspect the difference in contextual information given to the examiners was the cause of the different results. The original pair may have subliminally interpreted ambiguous information in a way helpful to the prosecution, even though they did not consciously realise what they were doing.

Biased brains, is an interesting piece, about the way police officers and staff examine evidence is always at risk of being far from impartial. Itiel Dror investigates how unconscious human bias can inadvertently influence how scientific evidence is interpreted.

Share This!

Hide Sites

{ 0 comments }

Many years ago I bought a small book, “How to lie with statistics,” by Darrell Huff.  I see that a newer edition (1993) is available at Amazon.  The edition I have is more in the form of a primer, without a lot of detail, but you can get the point.  A reviewer states:

“There is terror in numbers,” writes Darrell Huff in How to Lie with Statistics. And nowhere does this terror translate to blind acceptance of authority more than in the slippery world of averages, correlations, graphs, and trends. Huff sought to break through “the daze that follows the collision of statistics with the human mind” with this slim volume, first published in 1954. The book remains relevant as a wake-up call for people unaccustomed to examining the endless flow of numbers pouring from Wall Street, Madison Avenue, and everywhere else someone has an axe to grind, a point to prove, or a product to sell. “The secret language of statistics, so appealing in a fact-minded culture, is employed to sensationalize, inflate, confuse, and oversimplify,” warns Huff.

Well of course we have seen a lot of discussion recently about sexual assault statistics, the prevalence or lack thereof of false complaints, etc., etc., etc.  Along comes Peter Donnelly.

Now we have this at Psychlectures; “Oxford mathematician Peter Donnelly reveals the common mistakes humans make in interpreting statistics — and the devastating impact these errors can have on the outcome of criminal trials.”

Share This!

Hide Sites

{ 0 comments }

Massive round-up of new law articles, covering privacy, Fourth Amendment, GPS, cell site, cybercrime, big data, revenge porn, drones, and more from

Share This!

Hide Sites

{ 0 comments }