Archive for the ‘Due Process’ Category

Q&A Roundup Part 2

Friday, September 18th, 2015

I’m writing a response to an essay on “consent as a felt sense” and looking for a deeper explanation of mens rea and the reason why it ought form the basis for not just a legal system, but for the social norms of a community. I know there is some good discussion in the Elonis v. US case, but who are some good sources to read that really lay out the reason why we should (or should not) examine an actors mindset when judging culpability?

Mens rea isn’t really the basis of our legal system, nor is it really the basis of social norms. Mens rea is the legal term for the mental state that makes an act punishable by the state. If I accidentally tripped on a crack in the sidewalk and fell on you, bruising your arm, yes I caused injury to you, but because I had no culpable mental state – no mens rea – that’s not an injury the law wants to punish me for. Whereas if I intentionally whacked you on the arm and bruised it, the state could send me to jail. Same act, same harm, but only punishable because I was trying to harm you.

That’s a very small subset of the law. Mens rea doesn’t come up much in, say, corporate law or contracts or wills or real estate, etc. There may be some question of what parties intended or meant to do, but that’s not the same analysis as whether (or to what degree) they were being evil.

Mens rea doesn’t underlie social norms, either, but is instead a way of looking at why they were broken. It’s the difference between merely being rude or awkward and criminal stalking or harassment. It’s the difference between an accidental killing and murder one. The social norm would be what is or is not done, whereas mens rea is how purposefully you violated it.

Rather than mens rea forming a basis for “just a legal system,” it is instead a basis of “a just legal system,” ensuring that we only punish those who deserve it, who chose to break the rules. Injustice often arises when we punish without caring about mens rea. (See my chapter on strict liability, “Guilt without Fault,” for example.)

As for “consent as a felt sense,” be careful discussing it in the same breath as the law. That phrase is an attempt to redefine “consent” to mean something else. The law is very clear about what consent means.

“Consent” means voluntarily agreeing (or acquiescing) to something, so that it can now happen. If you ask me if you can borrow my bicycle, and I say yes, then I consented to you borrowing my bicycle. Even if while riding my bike you hit a pedestrian, and oh my god if I’d known you were going to do that I’d never have said yes, it doesn’t change the fact that I let you do it. The future doesn’t change the fact that I gave consent now. By the same token, if you steal my bicycle and later ask me if it was okay, even if I say yes I still did not consent to you taking it in the first place. You still committed theft. The fact that I’m okay with it now doesn’t change the past. That’s ratification or something like that, not consent.

“Consent as a felt sense” is really the opposite. It’s a way of saying consent works backwards in time, rather than forwards. It lets me “take back” my consent to you riding my bike, after I find out you later hit a pedestrian. If it was internally consistent, it would let my later acquiescence convert your crime of theft into a non-criminal borrowing, after the fact. The law doesn’t work like that.

It usually comes up in the context of rape – specifically wanting to call consensual sex nonconsensual rape, if afterwards one of the participants feels like he/she wouldn’t have agreed to it if they knew how they’d feel about it now. In other words, “taking back” one’s consent because they regret what they consented to. The law doesn’t work that way, but those who speak of “consent as a felt sense” tend to say “so what,” and say we shouldn’t be so concerned with whether the rules were obeyed at the time as with how people felt afterwards.

The problem in that world – and it’s a big one – is that mens rea is irrelevant. Who cares whether you were trying to do anything wrong or whether you were trying to do the right thing. The important thing isn’t your culpability then, but my feelings now. In that world, you could be punished even though you did everything right, and did nothing wrong. It embodies all the injustice of strict liability crimes, with all the unpredictability of a world without rule of law, where nobody knows what they might go to jail for or why. Can you imagine what kind of a hell that would be?

This is why lawyers – especially criminal lawyers – are super leery of this kind of sociological definition-changing. Utopians tend to make misery. Especially when they don’t understand the law and why it is the way it is.

Another reader’s response: I’m clearly not as experienced as lawyer as this guy (two thirds of a 1L criminal law class woo!), but I thought I’d share my two cents.

I think the above lawyer’s analysis fails in regarding consent as something that is given once, rather than a continuous process.  It is not precisely analogous to the bike-giving example because that’s a bailment created for a limited duration of time; meanwhile, in order for an act to be truly consensual there must be consent at each individual action that occurs, and at each moment.  To clear up some possible strawmen, I’m pretty sure that the above lawyer thinks that people can verbally revoke consent in the middle of a sex act.  Conversely, I don’t mean that explicit verbal consent must be gotten every time e.g. someone goes from touching one body part to another.

I think the “consent as a felt sense” can be better understood to modify the actus reus of rape, rather than the mens rea.  Rape is then redefined as “any sexual act done without the subjective experience of consent with another person.”  I think this is the proper definition, since it focuses the crime on where the harm actually occurs; e.g. inside the mind of the person being victimized.  Of course, in order to be morally culpable, much less criminally answerable, there must also be a mens rea; was someone intentionally, knowingly, recklessly, or negligently violating someone’s subjective experience of consent?  Or did they have no way of knowing?  Obviously if someone has no clue that consent was no longer experienced, and had no way of knowing it, they’re not culpable.

So far this looks pretty similar to today’s rape law, but I’d like to bring in an example from my own life to illustrate.  When I was 17, I engaged in my first relationship with a 39-year old man.  Things proceeded pretty quickly, and we started having sex.  When we finally got there, I was clearly distressed; I was shaking, not just trembling, and drenched in sweat that went beyond normal sexual aerobics.  My voice caught in my throat.  I think it’s far to characterize that situation as one where the subjective experience of consent was no longer there, but I also did not have the means to verbalize that to my partner.  My partner, to his credit, stopped what he was doing, we had a discussion, and two weeks and a couple drinks later I had the best experience of my life.

But was it simply to my partner’s credit?  I think what the people who define consent as a felt experience would say that it’s not.  It’s the bare minimum of morally acceptable behavior.  Even if I had given verbal consent prior, anyone who would continue having sex with someone who is clearly in distress merely because they met the empty formalism of rape law is morally culpable.

Spreading the idea of consent as a felt experience, or encoding it into law, is about crystallizing that insight.  Torts law is often about placing the burden of preventing harm on those who are in the best position to be able to do so (to be fair, I got this from my heavily law-and-economics torts professor, so I have no idea if this is the mainstream view).  Surely that’s the person who lost felt consent, since they can verbalize it, but the initiator is also in a position to minimize harm by stopping if they think felt consent has been lost.  It makes sense to incentivize people to stop if they have reason to believe consent is no longer present.

Rape law, and current mores around rape, would say that what my boyfriend did was not obligatory.  I think it is, which is why I want to spread the idea of consent as a felt experience.

You raise a couple of really intriguing points.

The first is the concept of consent as a continuous process. There are at least two excellent classroom discussions to get out of that. First would be whether it’s actually a continuing process. If you have happily consented to have sex with your boyfriend, must you really consent to each tickle, touch, or thrust before it can take place, or have you actually consented to the experience as a whole, however it may unfold? I suspect that the common understanding is the latter, rather than the former – in which case, if your understanding is the former, it might behoove you to so inform your partner, lest there be any unfortunate misunderstandings that ruin your experience or his life.

Still on that first point, another excellent discussion could be whether, and at what point, such consent is revocable. Is it a hard-and-fast rule that, no matter when, the moment you withdraw consent any further continuation of the act is rape? Or is there more of a continuum? Take these three situations: (a) You say “let’s go to bed” and you partner eagerly agrees, but before anyone’s jeans are off you change your mind and say not tonight. (b) You’ve been happily having intercourse, well past the penetration stage, and while he’s going hot and heavy you remember something he did that upset you, you immediately lose interest in continuing and tell him to stop, but he doesn’t stop immediately so you push him off. © You had sex and it was great. Now it’s the next day and you feel really bad that you had sex. Maybe he turned out to be a jerk in the morning, or whatever. The point is you no longer want it to have happened. The question would be, do all three of those acts count as revocation of consent, do only (a) and (b) count, or does only (a) count, and why? The trick with these discussions, of course, is to dig down to the underlying principles behind people’s different positions, to ensure that people aren’t talking past each other despite using the same language.

The second intriguing point you raise is when you say you think it is obligatory for sex partners to do what your boyfriend did. You were exceedingly nervous at the prospect of losing your virginity, but never made it known that you didn’t want to go through with it. Your partner picked up on the fact that this wasn’t very enjoyable for you, and had the good grace to wait until you were more comfortable with it. You would make mandatory his ability to distinguish your distress from the normal apprehension and excitement that accompany many first forays into sex. You would make mandatory his ability to correctly interpret your internal feelings when you have not communicated them. You would make mandatory the gentility and wisdom of an experienced, middle-aged man, and impose them on every 17-year-old trying sex himself for the first time, possibly as distressed as you were.

And to be clear, you’re saying that anyone who gets it wrong, anyone who mis-reads the cues, anyone who isn’t as sensitive or mature as this ideal, should have his future taken away, should be branded a felon, should be imprisoned, should be registered as a sex offender and despised for the rest of his life, denied the opportunity for most education, employment, social involvement, and relegated to an underclass of citizens we like to pretend don’t exist. Because that’s what happens when you make this stuff obligatory.

Hey, maybe that’s exactly what you want. Maybe it isn’t. Don’t let me put words in your mouth. But as someone who’s defended both men wrongfully accused of sex crimes and women charged with making false accusations, I’d caution anybody urging such mandates to be very clear on the outcome they desire. Good intentions, and all that.

Paranoia from the PBA President

Tuesday, September 15th, 2015

Over lunch today, the head of one of the NYPD’s powerful police unions* emailed a shrill “open letter” to the press, blaming the “armchair rhetoric” of columnists and pundits for the worsening relations between the police and the communities they serve.  Here’s the email:

To all arm-chair judges:

If you have never struggled with someone who is resisting arrest or who pulled a gun or knife on you when you approached them for breaking a law, then you are not qualified to judge the actions of police officers putting themselves in harm’s way for the public good.

It is mystifying to all police officers to see pundits and editorial writers whose only expertise is writing fast-breaking, personal opinion, and who have never faced the dangers that police officers routinely do, come to instant conclusions that an officer’s actions were wrong based upon nothing but a silent video. That is irresponsible, unjust and un-American. Worse than that, your uninformed rhetoric is inflammatory and only serves to worsen police/community relations.

In the unfortunate case of former tennis pro, James Blake, — who was clearly but mistakenly identified by a complainant — there certainly can be mitigating circumstances which caused the officer to handle the situation in the manner he did. Do they exist? Frankly, no one will know for sure until there is a full and complete investigation. That is why no one should ever jump to an uninformed conclusion based upon a few seconds of video. Let all of the facts lead where they will, but police officers have earned the benefit of the doubt because of the dangers we routinely face.

The men and women of the NYPD are once again disheartened to read another the knee-jerk reaction from ivory tower pundits who enjoy the safety provided by our police department without understanding the very real risks that we take to provide that safety. Due process is the American way of obtaining justice, not summary professional execution called for by editorial writers.


Patrick J. Lynch

Here’s where that’s coming from:

  1. Last week, retired tennis player James Blake was at the entrance to the (very nice) Grand Hyatt hotel in midtown Manhattan, waiting for a car to take him to an appearance at the U.S. Open. Out of the blue, an armed man in a white t-shirt, jeans, and sneakers attacked him, shoved him against the wall, then twist-slammed his body face-down onto the pavement.
  2. The armed attacker was a police officer, James Frascatore, who mistakenly thought Blake was a suspect in a credit card fraud. Frascatore did not identify himself as a police officer until after Blake was in handcuffs.
  3. Video of the attack surfaced (seen here). Frascatore was widely criticized for excessive and unnecessary force, word spread that he’s had a long record of overdoing it.
  4. To stem the public-relations disaster, Frascatore was placed on desk duty while an investigation could proceed.
  5. The public-relations disaster only got worse, with Blake calling for Frascatore to be fired, and many thought leaders joining in that wish.
  6. Lynch is now responding to all that, saying that it’s too soon to judge Frascatore, we shouldn’t jump to conclusions until we know the whole story, he deserves the benefit of the doubt because police officers have a dangerous job, the people calling for him to be fired enjoy the benefits of policing without the wisdom that comes from understanding what police officers risk, and that Frascatore deserves due process before being tarred as an offender.

A lot of people are going to knee-jerk dismiss Lynch’s email as a load of horseshit at best, and at worst a dangerous defense of a dangerous man that exemplifies the corruption of police unions and the thin blue line’s blind eye to evil within its ranks.

A lot of people are going to knee-jerk cheer Lynch’s email as a necessary breath of fresh air, a much-needed skewering of those who god knows why insist on attacking the freaking good guys, who give aid to the enemy by fanning the flames of anti-cop sentiment, those namby-pamby assholes who put good cops’ lives in danger to further their petty political points.

I’ll try not to be too knee-jerk here, but Lynch is wrong. He’s hypocritical, foolish, and wrong.


Look, nobody doubts that the police have a risky job. It’s nowhere near as risky as they sometimes think, with fewer cops being shot these days — despite there being far, far more cops and criminals on the streets — than there were more than half a century ago. (Sorry, that link was from 2013. They’re even safer now.) But the fact remains that police officers do sometimes, occasionally, rarely, get killed on the job. Even by people suspected of nonviolent crimes like credit card fraud.

You think I’m going to say that’s irrelevant. But it’s not. I’ll get to that in a moment.

But holy cow, the hypocrisy. Once again the refrain that “we can’t judge this officer until all the facts are in.” “Don’t rush to judgment.” “Don’t jump to conclusions based only on the evidence you’ve seen.” “Don’t ruin his reputation and career before he’s had the due process of a full and fair investigation.”

Oh, please.

When police officers start living by those maxims, maybe then they can expect to benefit from them. Rushing to judgment, jumping to conclusions based on limited evidence, is what cops do. It’s what they’re trained to do. It’s their blasted job description. And they immediately do their best to destroy the lives of those they’ve arrested, before any evidence is in, before any due process has even begun, by hauling their victims through perp-walks and holding press conferences specifically designed to condemn people who haven’t even been arraigned yet, much less been convicted.

Whenever a police representative makes any of these claims, you have my permission to vomit on their shoes in disgust.

That’s the hypocrisy, and it’s obvious. What’s the foolishness?

Lynch is foolish to attack the punditry in this way. The opinion writers and journalists of America have been the best friend of the police since forever. Including the lefty anti-establishment types who flocked to journalism after Watergate. Yes, them too. They’re the ones who made the police into heroes. It sure wasn’t the people on the street who actually interacted with cops and batons and TPF goons, and it certainly wasn’t the people safe in their offices and houses and dorm rooms whose only encounter with the police was a speeding ticket. It’s been the storytellers — the journalists, the screenwriters, the comic-book artists — who’ve reliably instilled the ideal of the noble police officer.

The exceptions used to be exceedingly rare, and only in reaction to exceedingly awful conduct.

What would a wise police establishment do? A wise establishment would co-opt these writers eagerly, and make sure that these rare exceptions were known to be exceptions, were disavowed as unpolicemanlike, and that real police officers neither behave that way nor tolerate those who do.

What the unions have consistently done, however, is to double down each time it happens. With every case of police brutality, the police back the wrongdoer. And each time they do that, the police themselves, turn the outcry, bit by bit, against the police themselves. By identifying with the wrongdoers, the police have gradually become the wrongdoer in many eyes. Some say the anti-police demonstrations in Ferguson last year marked a tipping point, and that anti-cop sentiment is becoming systemic. But they said that after Amadou Diallo, after Abner Louima, after Rodney King, a generation ago, and it never really snowballed. But if we are at a tipping point or near one, how much wiser to stop it by co-opting the opinion makers? Not antagonizing them and proving to them that everything they suspected and feared is in fact true.


Video is not the policeman’s friend, necessarily. It’s easy enough to edit out the bits that show the threat a police officer was reacting to, to make his reaction look senseless and out of the blue. There are plenty of videos making the rounds that do just that. It’s unfair when that’s all we see, and yes when we jump to conclusions based on such videos we jump to the wrong conclusions. But the solution to that is not the same old doubling down, locking arms, and spouting the same mindless defense of wrongdoing and hypocrisy. That only breeds more skepticism and cynicism. The correct thing to do is provide the rest of the facts, so the public knows not only what’s what, but also that someone tried to manipulate them. People don’t like that. You can do this without undermining an officer’s legal defense. He doesn’t have to say a word on camera. That’s what you union mouthpieces are for, right?

Video is also not always the policeman’s friend when viewed by an untrained eye. You officers on the job right now, how many videos have you seen of a justified shooting, where it all happened too fast or at the wrong angle for the camera to pick up on the gun? Happens all the time. Joe Public sees a video of a cop shooting an unarmed man for no reason. But if you defend the bad shootings along with the proper ones, how is he to know?


As Radley Balko recently wrote, “Once again: There is no ‘war on cops.’ And those who claim otherwise are playing a dangerous game.


So what about the danger, then?

Police training and experience can be pretty dysfunctional. In fact, it’s amazingly similar to the socialization and experience that trains street thugs to behave the way they do.

You take a kid being raised in the inner city by a young, uneducated, single mom. Surround him with those who would hurt him or take advantage of him. He learns not to trust the people around him to have his best interests at heart. When someone tries to make him do something, the best response may well be to deny that person any authority over him, to fight back. The world is a dangerous place, in which he must assert himself forcefully if he is to survive. The other guy doesn’t count. All that counts is getting home okay, and if he can make a little money all the better. [For more on that, read this (or listen to the authors’ Freakonomics podcast or this unrelated Ted talk), or pick up any recent textbook on delinquency.]

In the Academy, police are trained that they are surrounded by those who would hurt them or take advantage of them. On the street, they deal almost exclusively with the violent, the broken, the unpredictable. They very rarely get asked directions by kids out of a Norman Rockwell painting. They learn to assert their authority immediately and forcefully. Otherwise a perp might fight back, and they might get hurt. The perp doesn’t count. All that counts is getting home okay, and if the officer can make a little overtime along the way, all the better.

Dysfunctional? You bet.

But that explains why Frascatore did what he did.

You or I or James Blake can look at the arrest of someone like, say, James Blake, and see a shocking unnecessary use of force. We wonder aloud “why didn’t he just show his badge, explain that Blake was suspected of a crime, and make the arrest peacefully, and only elevate the force used if — and to the extent that — the other guy first made it necessary?” (What, you don’t say sentences like that aloud?)

The dysfunction of a police officer’s training and experience explains why you or I might think that, but it would never even occur to an officer.

His automatic, learned behavior is to attack the suspect with overwhelming force and subdue him above all else. This may be perfectly rational when dealing with a violent or crazed thug. But when dealing with a perplexed honest citizen, the citizen’s confusion gets misinterpreted as resistance, and the officer’s reaction just gets worse.

This dysfunction is what Lynch is trying to defend when he accuses the punditry of ill-informed armchair quarterbacking. If they only knew the realities, they’d understand why this was no big deal, why this was understandable and indeed proper arrest behavior. (Hypocrisy, again. Somehow the police themselves have been granted a dispensation not to have to understand the behavior of those they are arresting.)

The solution, of course, is to think. To take a second and decide whether this person needs to be jumped with shouts of authority and a gun in his ear, or whether a discreet arm on the shoulder and a word in the ear might suffice. To take a second to figure out whether this well-dressed man at a swanky hotel is resisting your authoritah (do people still quote Cartman?) or whether he is in fact frightened and confused by an apparent armed assault.

It seems to work with violent anti-authoritarian inmates (see the above-linked study). Who knows, it might work with cops, too.

But what won’t work is more of the same knee-jerk hypocrisy and paranoia from the PBA.


*The Patrolmen’s Benevolent Association, which represents uniformed patrol officers. There’s a different union for uniformed sergeants, another one for detectives, and yet another one for lieutenants.

Inexpert Testimony

Monday, April 27th, 2015

The purpose of a trial is not to discover the truth. Sorry. Whether civil or criminal, bench or jury, the purpose of a trial is to decide on an “official version” of the facts. The purpose of the justice system is to make an enforceable, hopefully final, decision about a dispute. The system does this by applying the law to the facts, and determining what the appropriate outcome is. The system already knows what the law is, presumably. But it can’t apply that law — it can’t do anything — until it has a set of facts to work with. We’d like the official facts to be as close to the truth as possible, of course, but one way or another we need to decide what they are.

That’s what the jury is for. That’s all the jury is for, most of the time: to be the “finder of fact.” Obviously, there are competing versions of the facts to choose from, or else there wouldn’t be a trial. The jury has to decide which facts the justice system will get to use. (And as Scott Greenfield pointed out this morning, once that official version of the facts has been determined, the system is extremely loath to revisit them. These are the facts we’ll rely on for damages, for sentencing, for appeals, forever.)

The jury’s job is important. It is sacred. The idea that twelve honest members of the community can assess the evidence and figure out what was proven and what was not proven is integral to our concept of justice. And in a jury trial it’s important that only the jury gets to perform its sacred task. We don’t let anyone else decide the facts for them. That would mean replacing the jury of twelve with a jury of one. We tightly control who gets to testify, what questions they can be asked, and what they’re allowed to say. We limit the evidence only to relevant testimony, and try to exclude categories of evidence that are too unreliable to use — especially evidence that cannot be challenged.

And we certainly don’t let witnesses or lawyers vouch for the truthfulness of their testimony. “You have to believe this because, in my opinion, it’s true” is not something you can say to a juror.

Unless you’re an expert witness, that is. Then you get to not only opine on what evidence means, on facts the jury needs to decide, but also on the reliability of your opinion. Ideally, an expert is an objective witness with no stake in the proceedings, who has knowledge of a subject that is just too complex or arcane to expect of jurors. Whatever they’re testifying about, they’re needed because it’s not common knowledge. So the expert gets to summarize the arcane subject, draw factual conclusions for the jury, and also give his opinion about how reliable he is — how confident he is in his conclusions.

When he gives his expert opinion, the expert witness does the jury’s job for them. The jury needn’t assess his reliability — the judge called him an expert, and the expert himself said the basis for his opinion was reliable. The jury doesn’t need to assess his summary or his conclusions about the evidence — if they could do that, they wouldn’t have needed an expert in the first place. And besides, the expert gave them his expert opinion of how reliable that conclusion is. The expert witness can easily become a jury of one.

So we are really really careful about who we allow to testify as an expert witness, and strictly limit what they can testify about.



Of course there are exceptions. And of course they’re mainly to be found in criminal trials, where the stakes are highest, and the jury’s role is most important.

One exception you’ve probably heard about before. [Heck, I’ve probably griped about it here a couple of times, only just as I can’t be bothered to edit these posts before I post them, I can’t be arsed right now to look up whether I’ve written on it already.] This is the exception for expert police testimony. Instead of establishing valid academic and professional credentials to ensure that this expert knows what the heck he’s talking about, and instead of having him specify the resources and data on which he relies (and thus give the other side a chance to challenge the validity of those sources), we pretty much let the police witness provide his own opinion about whether he’s an expert, and then we call him an expert, and then we let him tell the jury what the evidence means.

Cop: “I was trained by other police officers about how drug deals work. I’ve participated in lots of arrests that involved drugs. In my opinion, I am super-familiar with how drug deals work.”

Judge: “Okay, jury, this guy’s an expert.”

Cop: “In my expert opinion, those apparently innocent bits of evidence really mean the defendant sold that other guy some drugs.”

Jury: “Well, that’s that. When’s lunch?”

It’s self-serving testimony by the government, deciding for the jury the ultimate issue of the case. It’s not from a disinterested witness, but usually from the same officer who made the arrest. He’s telling the jury that, in his opinion, he was right. And the judge is telling the jury he’s giving this opinion as an expert. The witness isn’t giving any details of what he’s basing this expert opinion on, and so its reliability cannot be challenged. All that’s happening is he’s getting to vouch for his own expertise, and the government is getting to vouch for the reliability of its evidence.

But this isn’t what I wanted to complain about today. At least the officer was first screened and offered as an expert. Eyewitnesses, on the other hand…


The eyewitness gets to give expert opinion testimony without even being admitted as an expert.

Eyewitness testimony is notoriously inaccurate. On average, it’s no better than a coin toss. More than 3/4 of the death-row exonerations to date have been from convictions based on eyewitness testimony. Humans just don’t see everything as accurately as we think we do, our memories are malleable as hell, and we’re really bad at pointing out the culprit in a lineup. But boy howdy are we confident! We think our memories really happened, even when they’re demonstrably false. We think we’re right. How can we not? But we’re wrong an awful lot.

Confidence has zero to do with the reliability of an eyewitness. Almost every eyewitness is confident that they’re remembering things accurately. Even when they’re wrong.

And yet, when an eyewitness says they’re confident that they’re right, it has a huge effect on juries. When a witness vouches for her own testimony, studies show that jurors tend to believe her. The effect is powerful — it is almost impossible to overstate it. In fact, even when a witness has contradicted herself on the stand, and has been shown to be clearly unreliable, if she tells the jury that she is very confident that she’s right, the jurors will say they found her credible.

Courts also put a lot of stock in an eyewitness’s opinion of her own accuracy. The more confident the witness feels, the more likely she’ll be allowed to testify. The Supreme Court itself has gone out of its way to say that eyewitness confidence is a factor that should be considered when assessing the reliability of her testimony.

In other words, if an eyewitness says “I’m sure I’m right,” the jury’s not only going to be more likely to believe her, but they’re supposed to believe it more.

How stupid is that?

This is opinion testimony. The eyewitness is giving an opinion on an issue of fact — the reliability of her testimony. This is a decision the jury needs to make. She doesn’t have an unusual background that lets her assess this any better than the ordinary juror. On the contrary, because it’s her own memory and perceptions, she’s the one person least qualified to give a reliable assessment of its accuracy. But she’s the one who gets to tell the jury how accurate she is.

Not only that, but in many states the defense is not allowed to even present their own expert testimony to rebut her opinion. No expert opinion that this eyewitness got it wrong. (Two main reasons: one, eyewitness unreliability is considered such common knowledge –ha! — that expert testimony is unnecessary; and two, general testimony about how people in general get it wrong isn’t evidence that this person got it wrong.) All that can be done is cross-examine to find inconsistencies and reasons to argue later that the witness was wrong. But that’s not very helpful, because again, when an eyewitness testifies that she has high confidence in her accuracy, those inconsistencies and other indicia of unreliability get ignored, and the jury tends to believe her regardless.

It’s not just a confrontation issue, but an evidentiary one as well. Witness confidence just isn’t a reliable indicator of witness accuracy. We’re wrong far too much of the time. In general the rules of evidence exclude categories of evidence that have a substantial risk of being unreliable. Everywhere else, we exclude evidence that cannot be challenged. If we were consistent, then, our rules of evidence would preclude witness assessments of their own accuracy rather than encouraging them.

It is the jury’s job to assess whether this witness got things right, and nobody else’s. Yet we go out of our way to take that decision away from them, and let the witness herself decide whether her testimony is correct. She’s giving an expert opinion on the reliability of her evidence. And not only is she not an expert, she is in fact the one person least qualified to assess the reliability of her memory.

But we let her say it. She gets to give her inexpert testimony, and do the jury’s job for them. And that snapping sound we hear right afterwards? That’s the jury’s brains turning off.

Is Ray Kelly a Complete Idiot?

Monday, August 19th, 2013

As we all know, Judge Scheindlin ruled that the NYPD’s stop-and-frisk program was unconstitutional. This should have come as no surprise.

Our Fourth Amendment law forbids a police officer from stopping you without first having reasonable suspicion to believe that you are up to no good. Police officers were stopping people without any reason to believe they might be up to anything. That this was unconstitutional should surprise nobody.

Once you’ve been stopped, Fourth Amendment law forbids a police officer from frisking you without first having reasonable suspicion to believe that you are armed and dangerous. Police officers were frisking people without any reason to believe they might be armed. That this was unconstitutional should surprise nobody.

It is also unconstitutional for the government to single people out for this kind of treatment based on their race. Police officers were stopping and frisking Black and Hispanic people almost exclusively. On purpose. That this was unconstitutional should surprise nobody.

These were not the random errors of wayward officers, but institutionalized behavior directed and commanded by the police department. It was a program. That the NYPD has been given an injunction to knock it off should surprise nobody.

And yet Police Commissioner Ray Kelly has done nothing but act shocked and offended ever since.

Kelly made the rounds of TV news shows yesterday, angrily asserting Judge Scheindlin doesn’t know what she’s talking about, and claiming that this ruling is going to make violent crime go up. He argued firmly that the stop-and-frisk program is just good policing. It works. It’s effective. And now the NYPD can’t do it any more. It works. It’s effective. And so they should be allowed to keep doing it.

He firmly believes that, just because something is effective, the police should be allowed to do it.

This is the same guy who’s gunning for Secretary of Homeland Security. You thought you were living in a cyberpunk dystopia now? Just you wait until someone like him is in charge.


Forget whether he’s even correct that this is an effective policing strategy. (I already told you why it isn’t.) Let’s just, for the sake of argument, presume that stop-and-frisk actually worked to keep crime down.

That doesn’t mean the government should be allowed to do it. Effective does not mean constitutional.

The government is a mighty thing, with overwhelming power and force at its disposal. But one of the most beautiful things about America is that our government is constrained. It cannot use its might against you unless the Constitution says it can. There are plenty of things it might like to do, but it isn’t allowed to. (People being people, government folks will try to bend the rules or skirt them or even ignore them. Hoping nobody will notice, hoping nobody will say anything, hoping they’ll get away with it. Very often even believing they’re doing nothing wrong, and believing that in fact they’re doing the right thing. Still, the fact remains that they’re no allowed to do it.)

Of course there is a tradeoff. There’s always a tradeoff. If we gave the government unlimited power to snoop into our homes and search our persons, they would certainly catch a lot more criminals. If we took away the exclusionary rule and rules of evidence, they’d convict more of them, too. Ignore innocents wrongly convicted — let’s presume that the police would be inhumanly perfect about all this. It is a certainty that, without that pesky Bill of Rights, more wrongdoers would get punished, and more severely.

But we have decided that a lot of things are more important than catching and punishing criminals. Privacy is more important. Free will is more important. Fair hearings are more important. We as a society are willing to accept a certain level of crime — even violent and horrific crime — as a consequence of protecting these rights.

And so the government is forbidden from violating those rights, no matter how effective such a violation might be.

Kelly does not get this.

This is not rocket science. This is not obscure ivory-tower theory. This is a basic core principle every rookie police officer should know. Is Ray Kelly a complete idiot, here?


Kelly defends targeting Blacks and Hispanics because statistically, they commit a disproportionate amount of the crime in this city. And statistically, they do. But that doesn’t justify stopping individuals just because they happen to have been born into those groups.

Just as “effective” does not mean “constitutional,” the statistics of a general population don’t give you reason to stop that particular individual over there. His being Black does not give you reasonable suspicion. You need reasonable suspicion to believe that this guy is up to something. Ours is a system of individual justice. You need a reason to suspect this particular person, not a belief about people like him in general.

Again, this is stuff you learn your first week at the Police Academy. It’s pretty basic.

If the statistics showed that people of Italian descent committed a disproportionate amount of bribery, or that Jewish people committed a disproportionate number of frauds, would that give the police reason to target Italian or Jewish people just because of their heritage? Of course not. It would be as absurd as it would be abhorrent.

And yet that’s essentially what Kelly’s saying about the racial discrimination.

Does he not see how blatantly wrong this is?

Is he a complete idiot?


You sort of have to hope he is.

Because if he’s not an idiot, then he knows exactly what he’s saying. He knows exactly why he’s wrong. Not just intellectually wrong, but morally wrong and contrary to everything this country stands for. And he’s still saying it. Hoping to convince you he’s right. Hoping you’ll let him continue to have those powers.

Pray he’s only an idiot.

Is Open File Discovery a Cure for Brady Violations?

Tuesday, February 28th, 2012

Prompted by a tweet from Scott Greenfield this morning, we read a short editorial the New York Times did a couple of days ago, arguing that federal and state prosecutors should adopt open-file discovery policies, in order to limit Brady violations and promote justice. We’d missed it the first time around, because … well, because we never bother to read NYT editorials.

This one is decent enough, so far as it goes. The Times points out that it’s up to the prosecutor to decide whether something is material enough to disclose under Brady, and so defendants very often don’t learn of facts that might have been favorable to them. With full disclosure, perhaps fewer defendants who are over-charged or improperly charged would plead guilty, and perhaps fewer wrongful convictions might result.

Yeah, but …

Here’s the thing: “Open file” policies are rarely that. Prosecutors’ offices with open file policies rarely (if ever) make their complete file available to the defense. More often “open file” just means they comply with their existing discovery obligations without putting up too much of a fight.

Prosecutors in general are unwilling to engage in true open file discovery, and for reasons that are anything but nefarious. It would be like playing high-stakes poker in a game where you and only you have to show all of your cards, all of the time. Unless you have four aces and a joker every hand, that’s a losing strategy. Defendants will be able to see all the weaknesses of the evidence with plenty of time to exploit them. People who “should have been” convicted will go free.

In practice, prosecutors only show their hand if it’s going to make the defendant fold. Or to the extent that it will persuade the defendant to fold. Show the ace, but don’t bother showing the 2, 6, 7 and jack.

Of course, it’s a misplaced concern to worry that people who “should have been convicted” will go free. If the evidence does not establish guilt beyond a reasonable doubt, then it doesn’t matter whether they did it or not, they don’t deserve to be convicted. It’s not even correct to think of whether they deserve to be convicted — the concern is whether the State is entitled to punish them. If the government’s evidence, all of it, is too weak to convict, then the State doesn’t get to punish. (What the defendant deserves only enters into it when asking how much punishment to inflict.)

The proper concern is whether (more…)

Correct, but Wrong: SCOTUS on Unreliable Eyewitness Identification

Thursday, January 12th, 2012

In this Information Age, it is hard to grasp sometimes that everybody does not know everything. And yet it is so. It is common knowledge, for example, that dinosaur fossils are the bones of creatures that lived scores of millions of years ago, that terrorist hijackers flew planes into the World Trade Center and the Pentagon, and that eyewitness identification testimony is statistically as reliable as a ’78 Chevy. And yet there are tons of people who sincerely believe that fossils are just a few thousand years old, that the U.S. government conducted 9-11, and that an eyewitness I.D. is the be-all-and-end-all of Truth.

Actually, it’s not fair to lump the I.D. believers in with 9-11 conspiracy theorists, Genesis literalists, truthers and the like. The others are sort of fringe-y. But if you put 12 ordinary citizens in a jury box, of good intelligence and sound common sense, and the victim points dead at the defendant and says “there is no doubt in my mind, THAT is the man who raped me…” you can almost hear all twelve minds slamming shut. They’ve heard all they need to hear. So far as they’re concerned, this case is over.

This despite the fact that study after study after study reinforces the fact that eyewitness testimony sucks.

And innocent people go to jail — or worse — because of it.

So you can imagine how keen the legal world was to get the Supreme Court’s decision in Perry v. New Hampshire, which came down yesterday. Perry, identified by an eyewitness as someone she’d seen breaking into cars, argued that Due Process required a judicial hearing on the reliability of that testimony before it could be admitted at trial.

Which was the exact wrong thing to argue.

Due Process requires that the government makes sure that it does not do things that make its identification procedures unreliable. It does not require that a judge do the jury’s job. Particularly when that job — weighing the reliability of a given bit of testimony — is incredibly fact-specific.

And especially given all the evidence of all the various factors that go into making eyewitness testimony unreliable — racial differences, time lapse, focus of attention, lighting, familiarity, stress, presence of a weapon, etc. — what judge in his right mind is going to want to be the one deciding whether this particular eyewitness’s memory is good enough?

So it’s hardly any surprise that the Supreme Court balked at Perry’s Due Process argument. By a vote of 8-1 (former prosecutor Sotomayor as the lone dissenter, none better to know the power of the EW ID) the Supremes held that, unless law enforcement is alleged to have gotten the I.D. under unnecessarily suggestive circumstances, there’s no Due Process issue and certainly no reason for a pre-trial hearing on reliability.


No, what Perry could have argued for is either (more…)

Exceeding Their Authority: When Bureaucrats Create New Crimes, Justice Suffers

Wednesday, December 14th, 2011

One of our bugbears here at The Criminal Lawyer is the excessive number of federal crimes — particularly those that are created by regulators rather than by elected legislators. We’re not alone in this concern, and over the past several months we’ve noticed what can only be called a growing movement for reform.

A particular concern of ours has been the fact that an astonishing number of federal crimes lack any mens rea component. In other words, one can face prison even though their act was perfectly innocent — there was no intent to break the law whatsoever.

Mens rea is an essential part of American criminal justice. We don’t punish people simply because the committed some act or other, or even just because they harmed someone. Even if that harm was grievous. No, before we punish someone, there has to have been some culpability on their part. And culpability is defined by their mental state when they committed the act. There is a spectrum ranging from intentional through accidental, and the closer one was to the intentional end, the more severely we punish them. (If you want to be pedantic about it, there are a couple of other spectra of mental state as well — one’s ability to tell right from wrong, and one’s level of depravity — imagine them as the Y- and Z-axes to the X-axis of mens rea, if you like. But only mens rea is a component of crime itself — the others apply as defenses and as sentencing concerns.)

When defining a crime, here’s how it’s supposed to work: You specify what act you are forbidding, and you specify the mental state required to make it criminal — so bad that it deserves punishment. For example, if you plot to kill your neighbor, and succeed in killing him, then you are going to be punished far more harshly than a careless teenager who kills a family of four when he mistakenly runs a red light. Your act was more intentional, and thus more evil, than that of the teenager. Even though he did far more harm, you are more culpable, and thus your act is more criminal. And a man who accidentally trips on the sidewalk, knocking a little old lady into an oncoming bus? His act isn’t criminal at all. It was purely accidental, and unlike the teen driver he did not deviate from the normal standard of care to any extent that society would punish.

It is true that, as American jurisprudence evolved, there did arise certain “strict liability” crimes that have no mens rea requirement. Things like statutory rape. But those are exceptions to the rule, in the first place. And in the second place, the lack of mens rea is not really applicable — it usually has to do with elements of the crime that your own mental state could not affect one way or the other. For example, in the case of statutory rape, the issue is not whether you knew the girl was under the age of consent, but whether you had sex with someone without their consent — and someone under the age of consent, as a matter of law, cannot have consented to have sex with you. Your mens rea has nothing to do with whether or not she consented. It does not matter whether you knew she was underage, what matters is that she was underage, and thus you had sex with someone without their consent.

But though there were strict liability crimes, they were exceedingly rare.

Until regulators got involved.

Bureaucracy has a way of growing, and of expanding its own authority. Give an agency power to regulate, say, the mouse-pad industry, and they will start writing rules and procedures based on how mouse pads are actually produced and sold. Then they will start writing rules based on how the bureaucrats think mouse pads ought to be produced and sold, perhaps involving idealistic notions or academic fads. Meanwhile, they’ll busily craft tons and tons of rules and procedures micromanaging every aspect of how the main regulations are to be complied with. The number of regulations out there that Americans are expected to follow are uncountable, and nobody knows what’s in all of them. It’s beyond the capacity of the human brain to know what all the rules are.

And all of these rules have the force of law. Even though no elected official ever enacted them. The regulations are imposed, not by elected representatives who speak for (and must answer to) the citizenry, but by unelected government employees answerable to nobody.

That’s all well and good, when (more…)

What Would Plato Do?

Tuesday, September 20th, 2011

Wanda: What would an intellectual do?  What would… Plato do?

Otto: Apol-

Wanda: Pardon me?

Otto: Apollgzz.

Wanda: What?

Otto: Apologize!

Well, no.  He probably wouldn’t.  Not Plato.

And certainly not in the case of Troy Davis, whose final clemency request was denied this morning, and who now faces execution tomorrow evening for the killing of a police officer in 1989.  He was convicted at trial 20 years ago, but since then the reliability of that verdict has been called into serious question.  Seven of the nine major witnesses recanted their testimony, many claiming that the police pressured them to give false eyewitness accounts.  No forensic evidence ever tied Davis to the crime, the murder weapon was never found.  In the intervening years, ten new people have come forward to point the finger at another individual known to have been present at the scene.

So it’s possible that Troy Davis might not have shot the officer.  It’s possible that he might have.  Twenty years of second-guessing and changing stories make it uncertain.  But what is certain is that he was convicted, and that the conviction stands.

Should we be troubled by this?

We started pondering this after our kids’ bedtime story the other night.  We were reading to the lads from the Dialogues of Plato [what, you got a problem with that? Shut up, these are not your children.], specifically the Crito.  That’s the one where Socrates has been condemned to death, and his friend Crito shows up to talk him into escaping.  Boiled down to its essence, the Crito runs something like this: (more…)

Insider Trading, Expert Networks, and a Big Honking Due Process Violation

Wednesday, March 2nd, 2011



First, a shameless plug: Tomorrow, we’ll be participating in a Dow Jones webinar for Private Equity and VC types, discussing how the current environment of insider-trading prosecutions affects them, and what they might do about it.  (Link here, if you’re interested.)  Of course, those guys aren’t so much the focus these days as, say, hedge funds and the expert networks that help them make investment decisions.  “In the spotlight” doesn’t begin to describe it.  Not a week goes by without some major news about insider trading allegations in the hedge fund world.

With all that reporting, and all the various cases that are going on, one might think the issues are pretty well understood by now.  But they’re not.  Not even by the very people who are doing the prosecuting and investigating, it seems.  It so unclear that a month ago the Managed Funds Association formally asked the SEC for guidance on what is and is not kosher when dealing with expert networks.  “Our industry would like to know where the sidelines are right now so that we can stay well within them,” MFA president Richard Baker said at the time.  “The trouble is the referees aren’t quite clear where those lines are.”

Amen.  Nobody knows where the line is between lawful and unlawful conduct.  The feds themselves admit it.  And yet they are prepared to prosecute people for crimes, when the public has no way of knowing that such conduct was criminal.  Even an investigation is enough to destroy a reputation, wipe out a career, erase a business.  A conviction will take away a real person’s liberty and rights.  Americans don’t allow their government to do that in a gray area.  But it is happening.  How that is not a serious violation of basic due process is beyond us.


Expert networks are a fairly new thing.  It used to be that research was conducted by analysts who were more akin to investigative journalists than anything else.  They poked around, talked to people, and tried to piece together useful information about a company’s value or where an industry was headed.  The goal was to gain an insight that had value — something that wasn’t obvious to everyone else analyzing the public information.  Then along came Regulation FD, and all that changed.

Reg FD came about in 2000 as an attempt to (more…)

ABA Tells Courts to Provide Detailed Brady Checklists

Monday, February 14th, 2011

We wrote recently on our distaste for those on the defense side who persist in playing games.  It should go without saying that it is far worse for the prosecution to play games.  And yet it happens all the time.

Ideally, when the prosecution has done its job right, it’s going to be holding all the cards.  If those cards are good, there’s little reason not to show them early and convince the defense to fold.  It saves everyone the expense and burden of litigating and trying a case that ought to just plead out.

And if those cards aren’t so good, then fairness requires that they still be shown.  Simple due process requires that a criminal defendant — someone whose life, liberty, reputation and property the government intends to destroy — be told when the government has evidence that might help him defend himself.  If such evidence is in the government’s possession, it’s not realistic to believe that the defense would ever discover that evidence.  Law enforcement is rarely willing to share information with the defense.  And even with evidence from other sources, the defense never has anywhere near the resources and ability of the government to discover that evidence.  Anyone who thinks the two sides are fairly matched in this regard either has no experience, or no active brain cells.

So that’s why we have the Brady rule.  Prosecutors are supposed to give the defense any evidence possessed by the government that might help the defense at trial or at sentencing.  It’s a great rule, but the problem is that prosecutors often have a hard time following it.  And they get away with it plenty, because it’s not like the defense was ever going to learn of the existence of that evidence.  And they have absolute immunity from civil suit for their Brady violations.

What happens often enough, unfortunately, is that prosecutors try to game the rule.  Any (more…)

Registering the Wrong People

Monday, January 3rd, 2011


Sex offender registries aren’t necessarily a bad idea.

For whatever reason, there are certain people who get off on molesting little kids or raping people, and who are not likely to be rehabilitated by a stint behind bars.  It’s how their sex drive is wired. If they get caught and go to prison, they’re not any less likely to stop doing it when they get out.  That’s not how sex drives work.  So they often reoffend.  To minimize this, we put their names on a list, make them register with the local police department, impose restrictions on where they can live and what they can do.  They’re basically on extremely limited parole for the rest of their lives.

Their lives are basically over.  The stigma is the worst our society can dish out.  There’s a fat chance of pursuing any meaningful employment or making something useful of one’s life.  The best that can be said for such an existence is that it’s not prison.

Of course, with people who have demonstrated a clear and present danger, for whom there is a real and realistic concern that they will victimize another child if given half a chance… well, their interests don’t weigh so much any more.

But are these people really the ones who get registered?

Here in New York, a 17-year-old kid can wind up on the registry for having sex with his 16-year-old girlfriend.  A jerk can be registered for grabbing someone’s ass.  Stuff that has nothing to do with sex, like even the mildest forms of unlawful imprisonment, gets you marked a sex offender.  A harmless loser will find himself on the registry for calling up a call girl.  There really isn’t any rhyme or reason to it any more.

These are not things that have anything to do with the policy underlying sex offender registries.  There is zero concern that the people who commit such offenses pose a present threat of molesting kids or committing rape.  It’s an (more…)

Decent, law-abiding citizen? Go directly to jail.

Saturday, October 30th, 2010


Odds are, if you’re reading this, you’ve lived an admirable life.  You applied yourself in school, got a good job, and worked hard to be a valuable member of your community.  Through your own efforts, you’ve probably earned a position of respect and responsibility.  Maybe you run your own shop, or you’re a partner in a firm, or you’re a military officer.  Your ethics are beyond reproach.  You’re raising your kids to be loyal, kind and brave.  You, dear reader, are doing everything right.

And you, dear reader, can very easily find yourself in the defendant’s seat.  In the crosshairs of a federal or state prosecution.  Facing serious prison time.

For what?  For nothing, that’s what.  You yourself may have done nothing wrong, but our criminal law has devolved so far, so fast, that you can find yourself being prosecuted anyway.

The worst effects can be seen in federal law.  As the regulatory state has expanded, as the “nanny state” has expanded, as the role of the federal government has expanded, the nature of federal criminal law has changed dramatically.  Stuff that nobody in their right mind would consider “criminal” has nevertheless been made into a federal crime, not just by congressional statute, but by regulatory fiat.

Regulatory crimes are the worst, because agency regulations are never (more…)

Skilling Decision: Good for Justice, Bad for Jurisprudence

Thursday, June 24th, 2010

jeff skilling

It looks like we spotted the trend.  Unfortunately.

Last week we noted that, when faced with an ambiguous statute, some on the Supreme Court are now willing to read new language into the statute, rather than toss it back to Congress to do it right.  And we wondered if that might be a harbinger of what was to come in the “honest services” cases of Black, Weyrach and Skilling.

Well, those cases came down this morning, and sure enough the majority decided to read in new language, rather than toss out the statute for being vague.

It’s great for the defendants, whose honest-services convictions got tossed.  But to get there the Court had to change the rules.  Now, judicial invention is a perfectly acceptable method of statutory interpretation… so long as the new language is what “everybody knows” the statute really meant to say.  And that’s bloody dangerous. 


We’ve been paying close attention to this issue (see other posts here, here, here and here), as have many others, because the feds love charging people with honest services fraud.  It’s so vague and open-ended, that it potentially criminalizes any activity that’s outside one’s job description.  That makes it a great catchall when you can’t prove something more substantive.  But it’s also not at all what Congress intended.

“Honest services” fraud was originally a judge-created law.  There wasn’t any statute criminalizing it, it just sort evolved via common law, accepted in all the Circuits.  But we don’t do common-law crimes in this country, for one thing, and the mail fraud statute didn’t say anything about intangible rights, so in 1987 the Supreme Court threw out the common-law version of honest services fraud.  If Congress wanted to criminalize it, then that was up to Congress.

The idea was pretty simple: If you had a position of trust, and you abused that position for private gain (say, by taking bribes or kickbacks), then you were depriving people of the services you ought to have been giving them had you been honest.  You were getting paid under the table to do your job wrong.  So in 1988 Congress came up with 18 U.S.C. § 1346.

But the language didn’t say anything about abusing a position of trust.  Instead, it just said that (more…)

The Suspense is Killing Us

Wednesday, June 2nd, 2010

300 supreme court

There are four Mondays left in June.  Four more days in which the Supreme Court is expected to announce its decisions in the 27 or so cases still out there this term.  That’s about one case per day from now till then.  We’re picturing the Justices pulling all-nighters, stacks of empty pizza boxes in the halls at 2 a.m. next to the burn bags (do they still use burn bags there?), and sleepy zombie-like clerks dropping in their tracks every now and then.

Some of those cases have to do with boring old civ pro or shipping or labor law.  But a whole bunch are about the cool stuff, criminal law.  Here are a few of the criminal cases we’re watching particularly closely:

Black v. United States
Weyrauch v. United States
Skilling v. United States

This trio of cases attack the “honest services” fraud law.  18 U.S.C. § 1346 was supposed to prevent political corruption, but Congress wrote it so sloppily that it’s become a catch-all crime for federal prosecutors.  Anyone can get charged with it, and nobody knows what it means.  The Court telegraphed its dislike of the statute during oral arguments of all (more…)

Our Inhuman Response to Domestic Violence

Thursday, May 13th, 2010

witnessed abuse

Last night, we attended a domestic violence forum sponsored by the Children’s Aid Society here in Manhattan. We’ve been involved with the CAS for many years, and they do some pretty awesome things for kids in intense situations. And domestic violence is a deep and complex social issue we come across plenty. So we figured it might be worth checking out, and maybe come away with some new insights.

It was, and we did, but not in the way we’d expected. There was very little discussion of the causes of domestic violence, the various patterns of behavior of abusers and victims, what actions work to stop it and what doesn’t work, and challenges to be overcome in reducing the incidence of domestic violence. Those are sort of the kinds of topics we expected a domestic violence forum to get into, but unfortunately the talks were pretty much surface discussions of what the speakers do in their jobs, and the kinds of things they deal with.

That’s okay, we guess. The speakers were social workers, and most of the audience seemed to be social workers. So it’s probably nice that they got to hear what others in their field are seeing. But for anyone with a passing familiarity with domestic violence issues, there wasn’t much we’d consider enlightening.

Except for one thing. (more…)