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Landmark Eyewitness Identification Case Decided in New Jersey Supreme Court

rabbifink — Fri, 26 Aug 2011 12:31:08 +0000

In a criminal trial, several kinds of evidence are provided by the prosecution to prove the defendant is guilty. The most influential of these forms of evidence is often an eyewitness identification. A case with a positive ID is almost always going to result in a conviction.

The most common cause for an erroneous conviction of an innocent person is eyewitness misidentification. For years, experts have been explaining that misidentification can occur by mistake and with good faith. That doesn’t make them reliable. It just makes misidentifications into honest mistakes.

In many states legislation has been proposed to curb the effects of eyewitness identification. In New Jersey, the Supreme Court has spoken from the bench in an effort to fix this problem.

When an eyewitness identification may be unreliable, the judge in the case is required to hold a hearing to determine the witness’ reliability and then must instruct the jurors how much weight to place on the identification. In most cases the evidence will be heard, but the judge will educate jurors on the reliability of eyewitness identification.

Social science and decades of research have shown that eyewitness identifications are very often unreliable. Factors such as fear, bias, unfamiliarity with the defendant, focusing on the weapon, police misconduct, length of time between the crime and the ID all play into the reliability of the identification. Time and time again, identifications have been shown to be erroneous and have contributed to the death of innocent defendants via the death penalty and decades of prison time for other innocent defendants.

The New Jersey case comes ahead of a highly anticipated United States Supreme Court case next year that will decide an eyewitness identification issue. It is likely that the Supreme Court will follow the model set forth by the New Jersey Supreme Court.

Link: NY Times

For an amazing account of a false eyewitness identification watch these two videos. The story of the conviction is interesting and enlightening, but the story of the exoneration very inspiring:

Television Ad for Call of Duty: Black Ops – Controversial or Just Great?

rabbifink — Tue, 09 Nov 2010 16:57:29 +0000

Violence in video games is a subject that has become a hot topic. Some feel there should be more regulation of violence in video games. Some have called for banning violent games for children. In California a board of censors has been proposed and the Supreme Court of the United States recently heard arguments for and against creating a censorship bureau.

The case turns of whether video games are protected under the 1st Amendment and whether that protection should be suspended in favor of protecting children from violent video content.

The ruling will be an important ruling for an industry that is larger than the Television and Movie industries in America.

One of the more violent game series released a new installment today. Call of Duty: Black Ops puts the player in the middle of a cold-war era war. The player controls machine guns, tanks and rocket launchers in their quest to kill and destroy the enemy. It is highly anticipated and is supposed to be the “next great game”.

Personally, I would rather not see the government censor for the sake of children. Parents are supposed to censor for their children and expecting the government to babysit our children is lazy, irresponsible and far more dangerous than the violence contained within the video games. Parents like to pass the buck. It’s easy to tell a child “Sorry, the law makes it illegal to buy that game for you”. It’s not so easy to say “I don’t think that game is suitable for someone your age”. We always like to blame someone else for depriving children…

The biggest difference between violence in video games and tv / movies is that the violence in a game is controlled by the player. In the player’s mind, he or she is committing the act of violence. In a show or movie, the viewer is not a participant in the violence, they are a spectator. Games are great because of their “immersiveness” and that is also what some feel makes them more dangerous than seeing violence on tv or in a movie.

Call of Duty: Black Ops does not shy away from the allure of the immersive nature of the game. In fact they glorify it with their television commercial for the game. The ad features regular folks in their regular clothing, answering their cell phones while firing their weapons in a war scene. The ad has people of all races, genders and levels of fame – it includes Kobe Bryant and Jimmy Kimmel as well. The whole point of the ad is that when we play a game we feel like we are in the game.

In my opinion. the ad is ingenious. It really captures the “everyman” playing the game and becoming part of the game. However, the ad is not without controversy. Some say it makes the game “too real” and it is disturbing to consider the effects of a “real” war. A game can look almost real, but never will it look really real, as it does in the ad.

It doesn’t bother me. The ad is great marketing for a controversial product that adults can choose if they would like to purchase. There’s no sense avoiding the thing that makes these games fun…

Here is the ad. What do you think?

My Paper on Snyder v. Phelps (The Westboro Baptist Church Case Being Argued in the Supreme Court)

rabbifink — Tue, 12 Oct 2010 23:43:08 +0000

Over the last few weeks there has been a lot of discussion about the Westboro Baptist Church. They protested Judaism last week in Brooklyn and they have a case in front of the Supreme Court.

I have been asked for predictions and my opinion on the issue.

Luckily, I wrote this paper for a Hate Speech Seminar I took at Loyola Law School in the Summer of 2010. There is some important legal background, a quasi-prediction and alternative suggestion for the future in there. (I was given permission to post the article by my professor.)

I hope you will take the time to read it, think it over and share your thoughts with me.

I try to avoid legalese, but if there is something in there that needs explanation please leave a comment so I can explain it to the best of my ability.

Enjoy.

(I also recommend watching the excellent documentary on the WBC which follows the paper.)

Sticks and Stones

Loui Theroux produced this fascinating documentary on the WBC:

The Mechanics of Change and How To Make A Difference

rabbifink — Thu, 18 Mar 2010 16:05:08 +0000

A few weeks ago my brother-in-law asked me which branch of government I thought was the most powerful. I immediately answered, “Legislative”. He was surprised. As a fellow law student we read case after case where the Supreme Court overturned laws that it felt were unconstitutional. While that is true, it requires Herculean effort for the Supreme Court to overturn a law. The legislature can just write a new law whenever they want. That gives them almost all the power.

It has long been my feeling that legislatures are the best place to effect change in laws. Citizens can petition their law makers to make laws that they want and of they don’t make law that their constituents like, they can vote someone who will into office. Is this a slow process? Sure. But the Supreme Court process is even slower and the chance that your case will be heard is slim.

There is a second issue when the Judicial Branch speaks from “on-high” and mandates a change in law. This was illustrated to me by my supervising research attorney at the California Court of Appeals. He agreed with me that the Legislative Branch is most powerful. He added that sometimes a Supreme Court opinion can have the reverse effect that it intends. For example, in Roe v. Wade, the court held that laws banning / highly regulating abortion in the first trimester were unconstitutional. The reaction from the strident voice of opposition was not the acquiesce and lay low. In fact, it had the opposite affect. Millions and millions of dollars were poured into “overturning Roe”. This went on for decades. Interest groups spent all their energy trying to get Roe reversed. But if Roe had not sued in the Supreme Court or if the Supreme Court had denied to see hear Roe, it is very likely that the legislatures would have come around to see the law the way the Supreme Court saw it. In other words, if all the money and time and energy of the Supreme Court case had been spent on activism and PR in favor of looser abortion restrictions, it would have happened organically. And the reaction would not have been so severe.

Sometimes the people are not ready for the ruling of the Supreme Court. Sometime they need time to adjust their old views and in time, they will get it right. This is one of the main reasons there has been weak attempts to take the issue of same sex marriage to the Supreme Court. Even if the Supreme Court rules in their favor, a huge backlash is predicted. This would wind up having the opposite of the intended effect. Time, energy and money would be spent on “overturning” the decision. It is wiser to just wait until the people are willing to give them the rights they desire. (Of course this assumes this is bound to happen. As I wrote a while back in Human Beings Are Social Beings, more and more people know gay individuals and couples, it is going to be harder and harder to look them in the eye and say “no rights for you”. So I am pretty sure it will probably happen eventually.)

Another perfect example of change having the opposite of its desired effect is in the area of Health Care Reform. President Obama and almost all the Democrats want to regulate Health Care. They promise that rates will drop, insurance companies will be forced to be fairer and less discriminatory and everything will be wonderful. As I am self-insured, the new laws may actually help me, but probably not before I get a job with medical benefits.

Interestingly enough, the proposed bill is having the OPPOSITE effect. My health care premiums went up by 30% a couple months ago. My coverage is the same. My plan is the same. I just pay way more. The NY Times even had a write-up on MY insurance company. (Editorial – The Lesson of California’s Anthem Blue Cross on Health …) Sometimes, when change is forced down people’s throats, the effect is the opposite of what is intended. HCR may be wonderful, but in the meantime, it is squeezing millions of self-insured folks as they wait…

So how does change happen? It is best for it to happen organically. It is best for things to evolve, change slowly without huge monumental changes from “on-high”.

It reminds me of a story I read once:

The sun and the wind were having a contest to see you could get the man to remove his coat. The wind blew hard and the man clutched his coat tighter. The wind blew even harder and the man redoubled his efforts to hold his coat. The sun shone bright and the man got warm and took his coat off on his own.

Think about that.

(Where are we going with this? You’ll see soon.)

Crosses Honor Fallen Soldiers of All Faiths

rabbifink — Mon, 19 Oct 2009 07:01:43 +0000

We took the family to Santa Monica Pier on Sunday and our six year old son proved to be smarter than a Supreme Court Justice!

It is so beautiful to walk along the beach and observe all the excitement along the boardwalk and pier. As always, we had a great time in Santa Monica.

For the last few years there has been a protest / exhibit just north of the pier. The protestors are against war in general, the Iraq war in specific and pretty much the entire defense budget of the United States.

They call it Arlington West and they have set up a faux graveyard in the sand representing the fallen soldiers in what they call a criminal war.

It can be quite powerful when you see it.

As we walked by the lines and lines of crosses on this occasion, my 6 year old son asks, “How do they know all the soldiers who died were Christian? If they were Jewish or Muslim or ‘nothing’ they probably wouldn’t want a cross.”

Excellent point kiddo! Score one for the six year old.

In fact you may have heard about this exact issue arising in the Supreme Court of the United States in Salazar v. Buono. The issue in the case is an eight-foot high cross that was erected as a memorial to fallen soldiers in foreign wars.

The case made recent headlines when Justice Scalia could not fathom that a non-Christian would perhaps be offended by a Christian symbol as a memorial for the dead. The exchange between Justice Scalia and ACLU lawyer Peter J. Eliasburg went something like this:

JUSTICE SCALIA: The cross doesn’t honor non-Christians who fought in the war? Is that — is that –

MR. ELIASBERG: I believe that’s actually correct.

JUSTICE SCALIA: Where does it say that?

MR. ELIASBERG: It doesn’t say that, but a cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins, and I believe that’s why the Jewish war veterans –

JUSTICE SCALIA: It’s erected as a war memorial. I assume it is erected in honor of all of the war dead. It’s the — the cross is the — is the most common symbol of — of — of the resting place of the dead, and it doesn’t seem to me — what would you have them erect? A cross — some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?

MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew. (Laughter.)

MR. ELIASBERG: So it is the most common symbol to honor Christians.

JUSTICE SCALIA: I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that’s an outrageous conclusion.

MR. ELIASBERG: Well, my — the point of my — point here is to say that there is a reason the Jewish war veterans came in and said we don’t feel honored by this cross. This cross can’t honor us because it is a religious symbol of another religion.

(Credit: Huffington Post)

DovBear posted about this last week (Impeach Scalia) click for discussion there.

What amazes me is how my 6 year old son can see something so patently obvious and yet Justice Scalia can’t seem to process the concept…

Incredible.

Too Many Questions

rabbifink — Thu, 28 May 2009 00:27:07 +0000

I read a really interesting column this week.

Whenever I find a convergence of ideas between the Legal field and Torah I get excited.

This time I found a divergence. Not quite as exciting, but very interesting.

The NY Times followed up on a study conducted a few years ago by a 2nd year Georgetown Law School Student.

The study was groundbreaking. It focused on the amount of questions from the Judges to lawyers and its effect on the outcome of cases.

It turns out that there is almost a direct correlation between the number of questions the lawyers are asked and the decision of the Supreme Court. Over a five year period , the party that was asked more questions lost 86% of the time.

That is a lot. Some of it can be attributed to the Justices attempting to find holes in the weaker arguments. Most cases at the Supreme Court level are very gray areas. The side that is weaker will be exposed by more questions, thus the Judges use the questions to poke holes in the less compelling argument.

On the other hand, getting the Judges to ask your opponent more questions will help you win as well.

One reason for this is that the Judges, by asking questions, are attempting to show their colleagues the flaws in the arguments.

In fact a new, more comprehensive study found:

“The more attention justices pay to a side,” said Timothy R. Johnson, who teaches law and political science at the University of Minnesota and is one of the new study’s authors, “the more likely that side is to lose.”

This week is the Jewish holiday of Shavuos. A day where Jews around the world celebrate the giving of the Torah to the world. To this very day , Torah is studied in depth. Its ideas are discussed and argued.

The greatest arena for this study is the Talmud. The Talmud is a collection of legal analysis of Jewish Law. It is also a lot more thant that, but the purpose of the book is to develop a high level understanding of Jewish Law.

I find it very interesting that the Talmud asks tons on questions. It is not a law book. It is a book of questions. Invariably the side of the law with more questions will help the Talmud get closer to the truth. Questions do not indicate weakness. Good questions provoke better answers and better understanding. The side that has better answers emerges as the true path.

This holds true for all of Judaism. We encourage questions. We provoke discussion. We want to get closer to truth. The path to the truth is paved with questions.

When in the Supreme Court, questions prove fatal. In Judaism they are a necessary component to finding the true path.

On this blog I have an “Ask the Rabbi” Section. I encourage questions. If you have any, just click. I will try to answer as quickly and effectively as possible.