Articles Posted in Up Periscope

Justice Scalia’s new book, “Reading Law:  The Interpretation of Legal Texts,” is available.

Here’s the puff piece from Amazon.

In this groundbreaking book by best-selling authors Justice Antonin Scalia and Bryan A. Garner, all the most important principles of constitutional, statutory, and contractual interpretation are systematically explained in an engaging and informative style-including several hundred illustrations from actual cases. Never before has legal interpretation been so fascinatingly explained. Both authors are individually renowned for their scintillating prose styles, and together they make even the seemingly dry subject of legal interpretation riveting. Though intended primarily for judges and the lawyers who appear before them to argue the meaning of texts, Reading Law is sound educational reading for anyone who seeks to understand how judges decide cases-or should decide cases. The book is a superb introduction to modern judicial decision-making. Justice Scalia, with 25 years of experience on the Supreme Court, is the foremost expositor of textualism in the world today. Bryan A. Garner, as editor in chief of Black’s Law Dictionary and author of Garner’s Dictionary of Legal Usage, is the most renowned expert on the language of the law. Reading Law is an essential guide to anyone who wishes to prevail in a legal argument-based on a constitution, a statute, or a contract. The book is calculated to promote valid interpretations: if you have lame arguments, you’ll deplore the book; if you have strong arguments, you’ll exalt it. But whatever your position, you’ll think about law more clearly than ever before.

The July issue of The Jury Expert is now on-line.  There are several items of interest to the trial practitioner.

I was always told:

Tell ‘em what you’re going to tell ‘em;
Tell ‘em;
Tell ‘em what you told ‘em;
Sit down.

As of July 1, the Virginia Department of Criminal Justice Services has promulgated new model policies regarding eyewitness identification, including photo line-ups, following a study that was done showing how many mistaken IDs there are. By statute, all police departments are required to have a policy regarding both live and photo line-ups 19.2-390.02, though the DCJS study found that several departments did not.

here’s the link to the new policies:
http://www.dcjs.virginia.gov/cple/sampleDirectives/manual/2-39.docx
and the study, along with a couple of articles:
http://www.dcjs.virginia.gov/research/documents/12LawEnforceLineup.pdf
http://norfolkvabeach.com/police-photo-lineups-fail-new-state-policy.html
http://hamptonroads.com/2012/07/police-photo-lineups-fail-new-state-policy

h/t  Valerie L’Herrou
Assistant Public Defender
Charlottesville Office of the Public Defender

To Err is Human: Using Science to Reduce Mistaken Eyewitness Identifications Through Police Lineups
by Maureen McGough

Solving Sexual Assaults: Finding Answers Through Research
by Nancy Ritter

The Importance of James Otis

Thomas K. Clancy

West Virginia University College of Law; University of Mississippi School of Law
July 17, 2012
Mississippi Law Journal, Vol. 82, 2012

Abstract:
Historical analysis remains a fundamentally important tool to interpret the words of the Fourth Amendment and no historical event is more important that James Otis’ argument in the Writs of Assistance Case in 1761. The Writs case and the competing views articulated by the advocates continue to serve as a template in the never-ending struggle to accommodate individual security and governmental needs. In that case, James Otis first challenged British search and seizure practices and offered an alternative vision of proper search and seizure principles. No authority preceding Otis had articulated so completely the framework for the search and seizure requirements that were ultimately embodied in the Fourth Amendment. More fundamentally, Otis’ importance then and now stems not from the particulars of his argument; instead, he played and should continue to play an inspirational role for those seeking to find the proper accommodation between individual security and governmental needs. Otis proposed a framework of search and seizure principles designed to protect individual security. James Otis, his vision, and his legacy have become largely forgotten outside a small circle of Fourth Amendment scholars. This essay is a modest attempt to recall his importance for contemporary construction of the Fourth Amendment.

Get your 2012 MCM here:

Acute Suggestibility in Police Interrogation: Self-Regulation Failure as a Primary Mechanism of Vulnerability, Deborah Davis, University of Nevada, Reno, Richard A. Leo, University of San Francisco – School of Law, 2012

Anne Ridley, ed., Investigative Suggestibility: THEORY, RESEARCH AND APPLICATIONS (John Wiley & Sons, Ltd. 2012)
Univ. of San Francisco Law Research Paper

Abstract:
This chapter examines the failure of police, attorneys, judges, and juries to appreciate the magnitude of acute impairments of will and cognition in interrogation. The authors explore sources of enhanced susceptibility to interrogative influence triggered by the nature of the suspect’s immediate circumstances, rather than by chronic personal characteristics, which they call “acute interrogative suggestibility.” The authors consider the role of “interrogation-related regulatory decline” or IRRD in producing acute interrogative suggestibility — that is, the decline in self-regulation resources necessary to control thinking and behavior in service of resisting interrogative influence. In particular, the authors concentrate on three common but underappreciated sources of IRRD in police interrogation, one or more of which are present in most cases involving claims of involuntary or false confession: acute emotional distress, fatigue and sleep deprivation, and glucose depletion. The chapter concludes by arguing that much more weight should be given to issues of acute sources of vulnerability to influence and suggestion than is presently the case.

Cloud computing, the cloud, saving trees.

Here’s a link to the new Florida court rules for service of documents on counsel in a case.

The next step shouldn’t be much harder – allowing public access to filings in the same was as PACER.

We don’t have this come up too often because of the nature of our clients.

Luce v. United States, 469 U.S. 38 (1984), held that if a trial court determines that the prosecution will be able to impeach a defendant through his prior convictions under Federal Rule of Evidence 609(a) in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial.

On a different point entirely, don’t rely on old westerns like “High Noon” as a substitute for expert testimony on a relevant point.  (h/t federalevidence.com)

We all know that a defense counsel (and for that matter trial counsel) should not trust what comes out of a military drug lab, USACIL, or DCFL – I won’t rehash the problems over the years – which may well be continuing.  While the problems have been substantial, DOD and courts have been quite happy to rely on the various “forensic” labs to put or keep people in jail.

So, why does this surprise me.

“Review Found FBI Hair Analysis Flaws in 250 Cases, But DOJ Didn’t Inform Defendants and Public (does this sound like USACIL or what)” says the ABA Journal.