Race Issues Regarding Juries Addressed. For over 25 years, social scientists have observed problems with the accuracy of cross-racial identifications. "One analysis of 39 studies found that participants were one-and-a-half times more likely to falsely identify the face of a stranger of a different race," a New York Times article recently noted, citing information in a Dec. 14, 2017 Court of Appeals decision, People v Boone . The Court in Boone  held "that when identification is an issue in a criminal case and the identifying witness and defendant appear to be of different races, upon request, a party is entitled to a charge on cross-racial identification."

 

The trial court in Boone had denied a defense request for such a charge "on the basis that there had been no expert testimony or cross-examination concerning 'a lack of reliability of cross-racial identification'"; the Appellate Division had affirmed because the "defendant had not 'placed the issue in evidence during the trial' ...." The Times highlighted that supporters of the instruction say it is needed "to reduce the risk of wrongful convictions, which disproportionately affect black men," and the Boone majority noted "a significant disparity between what the psychological research shows and what uninstructed jurors believe." Judge Garcia, joined by Judge Stein, concurred in the result only, "because I would reaffirm, in no uncertain terms, the longstanding principle that the decision to deliver a cross-racial identification charge--like any other identification charge--remains in the sound discretion of the trial court." Judge Wilson took no part.

 

A Dec. 20, 2017 post about applying Boone in practice appears on the New York Criminal Defense blog.

 

The Boone decision also contained this: "amici note that '[a]s a society, we do not discuss racial issues easily.'" Yet race looms over other societal issues, plays a role in much public defense work, and demands examination if justice is ever to be achieved. Questions arise not only in the context of how juries should consider race-if at all-but in other contexts as well, including the selection of jurors themselves. A USA Today article on the same date that Boone was decided carried the headline, "It's still too easy to push blacks, minorities off of juries." The article was sparked by a recent Connecticut case, State v Holmes   (169 A3d 264 [Conn Appellate Ct 9/5/2017]), addressing the jury selection procedures set out in Batson v Kentucky, 476 US 79 (1985).

 

And with the advent of the new year, as noted in the July 19, 2017 edition of News Picks, CLE providers in New York will begin offering training on diversity, inclusion and elimination of bias based on race, ethnicity, national origin, gender, sexual orientation, gender identity, religion, age or disability.

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First Amendment Challenge to Second-Degree Harassment. In its November issue of Issues to Develop at Trial, the Center for Appellate Litigation suggests a constitutional challenge to a second-degree harassment charge under Penal Law 240.30(1)(a). "The facial sufficiency challenge we propose is supported by U.S. Supreme Court authority and boils down to the statute's failure to require proof that the defendant made his utterances with the intent to place the victim in fear of bodily injury." Prior editions of Issues to Develop at Trial are available at www.appellate-litigation.org/issues-to-develop-at-trial.

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Court of Appeals to Consider Whether the ADA Applies in Family Court. The First Department recently granted a respondent parent leave to appeal to the Court of Appeals its September decision affirming a determination that relief under the Americans with Disabilities Act (ADA) is not available to a parent in a proceeding wherein a court determines if an agency has made reasonable efforts to achieve the permanency goal of returning a child to the parent. Matter of Lacee L., 153 AD3d 1151 (9/12/2017) lv granted 2017 NY Slip Op 94379(U) (1st Dept 12/7/2017). In its September opinion, the First Department did concede that the issue at the hearing was "'to what degree the [foster care] agency was required to accommodate the parents' cognitive disabilities when discharging its obligation to pursue the goal of return to parent.'" The authority cited for the assertion that the ADA does not apply is another First Department decision, Matter of La'Asia Lanae S. (23 AD3d 271 [1st Dept 2005]), which cites Matter of Chance Jahmel B. (187 Misc 2d 626 [Family Ct, Monroe Co 2001]). The latter case, in asserting that "termination of parental right proceedings do not appear to be 'services, programs, or activities' such that the ADA would apply," cites a twenty-year-old Vermont case. The court in In re B.S. (693 A2d 716 [Vt Supreme Ct 1997]) concluded that an ADA violation is not a defense in termination of parental right proceedings because those proceedings are not "public services" as defined by 42 USCS 12132, and, thus, "the anti-discrimination requirement does not directly apply ...."

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"Stingrays" Require Warrant Based on Probable Cause, NYC Judge Says.  In what one commentator  recently called " a first and necessary step towards maintaining the privacy rights of all New Yorkers," a judge in Brooklyn found police use of a cell-site simulator (CSS) without a warrant unconstitutional. And the New York Law Journal noted  that the November 3 decision  in People v Gordon (2017 NY Slip Op 27364 [Supreme Ct, Kings Co]) "may be the first time a state judge has ruled that a warrant based on probable cause, rather than on a lesser standard, is necessary before police deploy" such a device. Kings County Supreme Court Judge Martin P. Murphy found that a search warrant for use of a CSS requires probable cause. The decision discussed the differences between warrants needed for CSSs (sometimes called Stingrays), and "pen register" or "trap and trace" warrants under CPL 705.00. 

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Electronic Frontier Foundation Offers "One-Pager" Criminal Defense Resources. A nonprofit organization dedicated to "defending civil liberties in the digital world," the Electronic Frontier Foundation (EFF), reported on privacy activists' concerns about cell-site simulators (CSS) in late November. EFF is promoting an online "Street-Level Surveillance" project that "shines light on the advanced surveillance technologies [including CSS] that law enforcement agencies routinely deploy in our communities." The website includes criminal defense resources on topics such as CSS and Automated License Plate Readers. Attorneys referring to these resources may also want to look at the "primers" on such technologies created last year by the National Association of Criminal Defense Lawyers, as noted in the Dec. 29, 2016 issue of News Picks.