All posts filed under: Faculty Commentary

Microscope

When Must Lawyers Learn Science?

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How should judges evaluate lawyers’ alleged mishandling of forensic science evidence when the challenge is brought years after the trial? One recent United States Supreme Court decision grapples with this; and this article contextualizes that holding, analyzes its weaknesses, and suggests some factors for judges to weigh. In criminal cases, the importance of science (and understanding the limits of science) cannot be gainsaid. The statistics are clear: in a review of homicide cases in Cleveland, Ohio, the clearance rate was higher [63.1%] for cases with probative results — either matches or exclusions — than in cases without such evidence [56.3%], and the average sentence imposed was higher in the former category. Yet there is a confounding problem – the consumers of forensic evidence have little or no scientific training, either at the college level or ‘on the job.’ Perhaps 5% of lawyers [and judges] studied science, a number presented in research papers and confirmed repeatedly by polling attendees at legal education conferences. And the consequences are severe. The scientific illiteracy of lawyers was highlighted in …

commuter on phone

Your Kindle Dims My and My Students’ Empathy

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I am the commuter many of you hate. Maybe I see you alone at the bus stop reading a book that looks interesting and ask you about it. Perhaps I see you looking a little confused on the train platform and ask if you need help figuring out where you are going. Or maybe I see you wearing that Phillies shirt on the train after the game and ask you the score, why you aren’t a Cubs fan like you should be, and how the Phillies will ever improve. In short, I am the overly interested in you transplanted Midwestern type that you may be trying to avoid, trying to draw you into a longer conversation to learn about you. You will succeed in chasing me away with a one-word answer—I am also Midwestern enough to know to leave you alone based on your response—but we’ll miss something. We’ll miss the chance to get to learn a little more about the world and each other together, to possibly become friends (it happens this way!), to …

Public Health Consequences of Islamophobia

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Donald Trump has built his presidential campaign on demonizing immigrant and religious minorities without regard for the damage he instills. At Tuesday night’s Republican presidential debate it was more of the same. In the wake of Trump’s anti-Muslim rhetoric, there have been a record number of threats, harassment and vandalism to mosques, as well as attacks on individuals perceived to be Muslim. Muslim-Americans report feeling fearful, and anxious for themselves and their families. It is a difficult time for law-abiding Muslims in America. Two decades of public health scholarship confirms that this type of hatred directed at one group of people, along with the harassment, discrimination and segregation that follow, has a pernicious impact on health. Hatred stigmatizes and marginalizes its targets, limits access to life’s opportunities and reduces the freedom to freely partake in life’s enjoyments. It can incite threats and violence and internalized self-hatred. The constant stress of being targeted risks cardiovascular disease, hypertension, anxiety and depression.  As the nation aspires to achieve health equity, the impact of Trump’s disparaging divisive rhetoric will …

LGBTQ Flag

In the Movement for LGBTQ Equality, the Mission Isn’t Even Close to Accomplished

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Something happened earlier this week that stunned many longtime LGBTQ advocates. On Dec. 12, Empire State Pride Agenda, New York state’s leading LGBTQ policy advocacy group, announced that it was winding down operations. An advocacy organization closing up shop isn’t in itself all that surprising. Nonprofits frequently fold, often due to lack of funds or instability in leadership. What was surprising was the spin the organization chose to put on the announcement. According to the group’s press release, its leadership “determined that the Pride Agenda has achieved its top policy goals, and are proud that the organization’s achievements in the last quarter century have profoundly changed the lives of more than 1.5 million LGBT New Yorkers and their families, and set an example for the entire nation.” Wait. What? Although it’s true that Empire State Pride Agenda, the state of New York, and the LGBTQ movement as a whole have come a very long way, we’re frankly shocked by the organization’s declaration of “mission accomplished.” This announcement exacerbates the perception that once same-sex marriage became legal …

Donald Trump

Court Rulings Support Trump’s Muslim Immigration Plan

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The hysterical response to Donald Trump’s proposal to restrict Muslim immigration is unwarranted. Contrary to the claims of Trump’s critics, the power to suspend the admission of “any aliens or any class of aliens into the United States” is expressly reserved by statute to the president whenever the president finds that such admission “would be detrimental to the interests of the United States.” Candidate Trump is telling us that President Obama should use this power, and that a President Trump would. Despite vigorous assertions by talking heads that suspending the admission of Muslim immigrants would be unconstitutional, prior Supreme Court opinions clearly suggest that courts would reject constitutional challenges to any president’s proposed suspension of Muslim admission into the United States in accordance with U.S. law. In the leading case of Fiallo v. Bell, the Supreme Court in 1977 noted, “Our cases ‘have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the government’s political departments largely immune from judicial control.’” In upholding the authority of the government …

PA Debates: Is a [Gruesome] Picture Worth 1,000 Words?

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When is a photograph more disturbing than useful, particularly in an emotionally-charged trial such as a homicide case (and, more particularly, in a homicide trial where the victim is a young child)? At once a seemingly narrow inquiry, how this question is answered resonates in all sorts of cases, particularly criminal and personal injury, where a photograph or video showing severe injuries is offered as evidence. The Pennsylvania Supreme Court debated this in Commonwealth v. Woodard, 2015 Pa. LEXIS 2786 (decided December 3, 2015). The views of both the majority and dissent warrant discussion, as they frame the issue radically differently and in so doing invite further and science-informed litigation on this issue. Woodard was accused of killing the two-year-old child of his one-time paramour when the child was left in his custody. The injuries were “blunt trauma,” i.e., injuries caused by blows from a fist or other hard object.  “Following a hearing where expert medical testimony was presented, the trial court granted the Commonwealth’s motion and ruled that thirteen autopsy photos (twelve color and …

Donald Trump

Trump’s Anti-Muslim Plan Is Awful. And Constitutional.

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Donald J. Trump’s reprehensible call to bar Muslim immigrants from entering the United States tracks an exam question I’ve been giving my immigration law students since Sept. 11. Would such a proposal be constitutional? The answer is not what you might think — but it also raises the issue of what, exactly, we mean when we say something is “constitutional” in the first place. In the ordinary, non-immigration world of constitutional law, the Trump scheme would be blatantly unconstitutional, a clear violation of both equal protection and religious freedom (he had originally called for barring American Muslims living abroad from re-entering the country as well; he has since dropped that clearly unconstitutional notion). But under a line of rulings from the Supreme Court dating back more than a century, that’s irrelevant. As the court observed in its 1977 decision in Fiallo v. Bell, “In the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.” The court has given the political branches the judicial …

Students in the classroom

Case Selection and Secondary Trauma

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I don’t relish my student’s traumatic experiences. I am happy, however, that they are happening with me there to support them. Perhaps I should be a little less overtly honest about it with my students. As they came in over the last few weeks to relay some of their traumatic experiences to me, maybe I should not have moved so quickly to tell my students how much I thought they were learning from it and instead commiserated more on how bad it must be to experience clients’ trauma for the first time. One student, on meeting his SSI client for the first time, had her tell him it wasn’t worth living once she was denied benefits and that she had considered killing herself over the case. Another student went before an ALJ quite convinced that her severely mentally ill client should win only to have the ALJ badger her and the client about drug use that seemed truly irrelevant. Like many clinicians, I have sent students to see dying clients, had clients insult and run …

Cross-Examination

The Prosecutor Cross-Examines: A Guide to Avoiding Unfairness and Reversible Error

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Prosecutors cross-examine much less frequently than do defense counsel, for good reason. Often defendants do not testify (with some data sets putting the number below the 50% threshold for felony cases that go to trial), whether because they have little too say, there is ample impeachment evidence the jury will not hear if they remain silent, or their educational and developmental limitations make them poor candidates for taking the witness stand. And the proportion of defendants who do testify may vary region to region and crime to crime. All of these factors make cross of a criminal accused a less practiced art. Just as fundamental skills may become rusty with limited use, knowledge of controlling principles of law may also erode or become lost entirely when the cross of a defendant is a relative rarity. And there is enough developed law to warn prosecutors away from potential pitfalls, areas of cross-examination that can end in a mis-trial or reversal on appeal. “Are you calling the police witnesses liars?” In the heat of battle and the …