By Judge Joan Shkane
This is a continuing discussion of Legal Myths and Reality, because those informed are always the most successful.
MYTH: A person litigating in the court system has the right to generally know about the judge and to approve the judge assigned to the case. If the judge decides that (s)he does not want to take the case, the litigant has the right to know why that decision was made.
REALITY: A litigant has no right to choose a judge or to prefer one judge over another judge. The reason for this rule is sound. All parties are entitled to an unbiased and fair decision, one that will be made only on the facts presented after all sides have made presentations to support their positions. This is fundamental law and is ancient, over 1000 years or more old. Judges are usually assigned at random. However, no judge can be forced to take a case. This is a right important to judges, although it can be abused if a judge wishes to reduce a caseload or to avoid difficult or complicated cases. In addition, currently no litigant is entitled to even know why a judge refuses the case (“recuse”).
Our legal system always strives to be responsive to the public’s objections or requests. A new law has recently been proposed that would change the law on recusal. Under this proposed law If a judge refuses to give up a case when asked, the judge need not give a reason for the decision to stay on (this represents no change from current law). However, under the proposed law if a judge gives up the case then the judge must give a written reason for giving the case up. The only exception to requiring a written explanation would be if the explanation would be embarrassing to the judge or the parties, or there is a strong personal reason. Each judge would decide if the reason is too embarrassing or personal to explain the reason in writing. A Senate committee is investigating the bill, which is not yet law.
MYTH: Facial recognition technology is accepted in New York State as evidence in courts.
REALITY: New types of technology are being developed constantly, including facial recognition technology and other types of biometric surveillance. One of the hopes is that some of this technology can be used in law enforcement and would find acceptance in the courts. An app has been created by a private company that can search internet images, seeking identification. It can be a starting place to identity people. This technology is only available to law enforcement agencies and not to the general public. Police argue that they would be negligent if they did not use available technology, and that facial recognition technology is only a starting point in gathering evidence. They argue that the technology can help save lives if the police can make a quick identification.
Others argue that the new technologies are not properly vetted, and that the technology often cannot accurately recognize women, young people, and other groups. They also argue that the technology is a threat to privacy and civil liberties, and can be easily abused. Some groups, such as people of color, may be targeted, interrogated, detained and convicted on faulty information.
A proposed new law currently in the New York State Senate for consideration would prevent police from using this technology until a task force thoroughly investigates all areas and sides of the arguments. They would be asked to consider how to regulate in the future. Some see appointment of the task force as overdue.
MYTH: Very few limitations are put on jurors or potential jurors because they always do their best to follow the law.
REALITY: The vast, vast majority of jurors follow the law and the judge’s instructions because they understand there can be no justice otherwise. However, occasionally two types of jurors end up on a jury. The first is a “rogue” juror who will refuse to follow the oath that each juror must take to keep an open mind and not lie to get and stay on a jury for his/her own reasons. The second is the “stealth” juror who does not follow his/her oath and the judge’s instruction to refrain from seeking or listening to information outside the courtroom to help make a decision. Both of these types of jurors completely undermine the entire system and most often will result in injustice being done. At a minimum, if may result in great costs to taxpayers to re-do a trial. Every single rule of evidence has been vetted for over 1000 years either here or in England (the source of our legal system) and has been developed to make sure that a jury hears only legal evidence, whether it makes immediate sense to a juror or not.
Th vast majority of recent cases of this type of misconduct deal with texting and other online ways of communication. In the case of the “Boston bomber”, two potential jurors said they had no opinion when in fact one had posted on Twitter over 22 times that the defendant was a “piece of garbage”, and other similar opinions. They then lied when asked in court if they held such opinions and if they had posted the opinions on Twitter. Another juror in the same case was a part of the Facebook discussion that a juror should lie and get on the jury to punish the defendant, even with death. Since this clearly was unlawful conduct, the convicted defendant was deprived of a fair trial and the entire expensive case had to be retried. In another case a juror sent and received over 7000 texts about convicting the defendant. When asked by the judge about the texts, the juror lied. Another juror did an internet search on the defendant’s criminal history and shared the findings with fellow jurors.
These are egregious examples, and there may be others that have remained undiscovered. A lawyer and judge can usually only rely on a juror’s honesty under oath. However, for the rogue or stealth juror, there can be consequences. If the juror’s own conscious is not in working order or the juror arrogantly thinks s(h)he knows more than every judge, lawyer or judicial scholar on two continents, the juror may face punishment. Such a juror may be held in contempt of court, fined and also criminally prosecuted for violating a judge’s instructions, and for intentionally breaking the juror’s oath.