tag:blogger.com,1999:blog-1272374698569247542024-03-05T16:38:44.353-08:00The Legal Mind at WorkThoughts on Law and LifeDan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.comBlogger32125tag:blogger.com,1999:blog-127237469856924754.post-44176224832939916222020-10-21T13:16:00.003-07:002020-10-21T13:18:50.807-07:00New Book Released!<p>I am thrilled to announce that my latest book was just published. It’s called You Are What You Do. The book is a call to action, with tips, advice, and encouragement about how to live the life you were meant to live.</p><p>The book collects all the bits of wisdom that I’ve learned over the years and that I wish someone had told to me a long time ago. Just writing the book has helped me be more deliberate about doing the things I value most, and I hope it helps other people as well.</p><p>You can check out the book on Amazon: <a href="https://www.amazon.com/You-Are-What-Do-Meant/dp/B08L6HRSKJ/ref=tmm_pap_swatch_0?_encoding=UTF8&qid=1603309314&sr=8-3">You Are What You Do</a></p><p>Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-39656668217234858132020-07-07T14:01:00.002-07:002020-07-07T14:01:43.112-07:00The Legal Mind Video Series Launched!<p>Today, I am very proud to announce that, after years of saying I was going to do it, I finally launched my YouTube Channel based on my book, <a href="https://smile.amazon.com/Legal-Mind-Daniel-Park-ebook-dp-B00GXF8VSO/dp/B00GXF8VSO/ref=mt_other?_encoding=UTF8&me=&qid=">The Legal Mind</a>.</p>
<p>Since its publication, The Legal Mind has consistently appeared in the top 100 hundred books in its category on Amazon, and on one glorious day, even reached number one. But not everyone learns the same way. My new YouTube series is for those who are more visual learners.</p>
<p>The inaugural episode is short (only four minutes!) but important. In it, I explain the critical distinction between questions of fact and questions of law. These two concepts are two of the key pillars of the legal system and legal thinking in general.</p>
<p>I hope you enjoy the videos. Please feel free to spread the word to anyone who might be interested. </p>
<p>Here’s the link to the video: <a href="https://www.youtube.com/watch?v=dYMdVHc-1U4">https://www.youtube.com/watch?v=dYMdVHc-1U4</a>. Thanks for watching it!</p>Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-60609779991964015412020-03-29T16:24:00.001-07:002020-03-29T16:24:45.464-07:00The Needs of the Many<p>There is a famous saying in legal circles that goes something like this “Better that ten guilty persons escape than one innocent suffer.” </p>
<p>The idea is that, if the justice system is to make mistakes—as all things administered by imperfect human beings do—it is better to err on the side of protecting the innocent rather than punishing the guilty.</p>
<p>As with any time the concept of “better” is invoked, even in a hoary and oft-quoted legal maxim, the question must be asked: <em>better for whom?</em></p>
<p>This morning, I was reading <a href="https://smile.amazon.com/Oathbringer-Book-Three-Stormlight-Archive/dp/1250297141/ref=tmm_pap_swatch_0"><em>Oathbringer</em> by Brandon Sanderson</a>. In one scene, one of the main characters recounts a story of a hog farmer who was found grievously wounded behind a barn. With his last breaths, the dying man revealed that his murderers were three other hog farmers. The trouble was that there were <em>four</em> other hog farmers in the village.</p>
<p>Each of the four loudly protested that he was the innocent man, but there was no way to know for sure. What the villagers knew was that three of the four men were heinous murderers and one was innocent. What should the villagers do with the four hog farmers?</p>
<p>There seem to be two choices:</p>
<ul>
<li><p><em>Let them all go</em>. Better that the three murderers go free than that the innocent man suffer.</p></li>
<li><p><em>Punish all four</em>. Better that the one innocent man suffer than that three murderers remain free to kill again.</p></li>
</ul>
<p>Which is the right decision? </p>
<p>If you are the innocent person, it is a great injustice to be punished for a crime you did not commit.</p>
<p>If you are one of the future victims of the three killers, it is a great injustice to die at the hands of criminals that could have been stopped.</p>
<p>In some ways, this is a version of the famous <a href="https://en.wikipedia.org/wiki/Trolley_problem">Trolley Problem</a>. Imagine you believe that each of the three killers will kill again. If you condemn the one innocent man, you save three people from murder at the hands of the killers. Is saving those three lives worth sacrificing an innocent person’s life? What if you would be saving 30 lives? 100?</p>
<p>In other words, <a href="https://www.youtube.com/watch?v=Xa6c3OTr6yA">do the needs of many, outweigh the needs of the few, or the one?</a> </p>
<p>I don’t think that there is a single answer to this question. There’s a reason the Trolley Problem is one of philosophy’s most famous conundrums. Fortunately, most of us will never have to make these decisions, but some people will. Whatever those few decide, we as a society will collectively have to live with the consequences—and with ourselves.</p>Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-64392197245937587332019-02-04T20:48:00.001-08:002019-02-15T20:41:19.780-08:00Why Do So Many Companies Require Arbitration in their Contracts?<p>Why do so many companies include arbitration clauses in their contracts? The one word answer is: juries. Or more precisely, fear of juries (but that’s three words).</p>
<p>In the American legal system, civil lawsuits (meaning private claims for damages) are decided by juries. A jury consists of a group of citizens chosen (mostly) at random from the local community. Juries are considered a bulwark of liberty because they allow ordinary citizens rather than government functionaries to decide the outcome disputes.</p>
<p>So why would a company fear juries? Several reasons.</p>
<p>First, juries have no expertise. If you were sick and you wanted a diagnosis, you probably wouldn’t gather twelve random people, have a group of experts try to train them over the course of a few days, and then ask them to render an opinion. If it were your life on the line, you would want an expert.</p>
<p>Second, juries might be more inclined toward the “little guy.” Since jurors are chosen at random, it is much more likely that the jury will be filled with regular working people than titans of industry, and in a dispute between an ordinary working person and a faceless company, the worry is that jurors’ natural sympathies will be with the underdog.</p>
<p>Third, juries might not understand just how much money they might be awarding. If a jury finds for the plaintiff in a particular case, the jury must also award damages, that is, a monetary amount that the defendant must pay to the plaintiff. But how much money should a plaintiff get for, say, losing the ability to walk because of an accident or for having their home wrongfully foreclosed? One hundred thousand dollars? One million dollars? Ten million dollars? One hundred million dollars? All the money in the world? Companies are afraid that jurors can’t tell the difference between these vastly different sums of money.</p>
<p>While fear of juries is a primary reason why companies prefer arbitration, there are other reasons as well. Here is a short list:</p>
<p>1. More limited discovery. The most expensive part of litigation is the discovery process (where the parties to the lawsuit exchange information). Many arbitration rules streamline discovery and thereby reduce costs.</p>
<p>2. No class actions. Companies can ban class actions in arbitrations. That limits their exposure in any particular case and is a disincentive for unscrupulous lawyers to bring weak claims with massive potential damages that can force unfair settlements.</p>
<p>3. Faster resolution. Courts in many places are backlogged. Arbitrators are paid by the hour, and so they are generally more available, and so cases can be resolved more quickly.</p>
<p>4. Confidential proceedings. Court trials all take place in public, where reporters can publicize the allegations and the proceedings, which can damage the company’s reputation, even if the company ultimately wins in the end. Arbitrations are more private, so arbitrated disputes attract less attention from the media. Also, the results are often confidential, which limits the risk to the company’s reputation.</p>
<p>5. More sympathetic decision-makers. This one is a bit controversial, but it is possible that companies believe that arbitrators, who are primarily paid by the companies, will have a more business-friendly tilt, at least when compared to judges who are public servants and juries who are ordinary citizens and who might even have an ax to grind against business.</p>
<p>That said, I believe that the primary driver behind consumer arbitration clauses is fear of the jury system. I should note that it is not entirely clear that juries are more likely to make decisions based on sympathy or to award inflated damages, but companies clearly think so.</p>Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-38976400157337638932019-01-09T18:16:00.001-08:002019-01-09T18:16:59.042-08:00Why Are Contracts Not Written in Plain English?<p>Why are contracts not written in plain English? The short answer: to reduce misunderstandings. The one word answer: ambiguity. Let me explain.</p>
<p>Ordinary, everyday language is rife with ambiguity, but often we don’t notice. Here's an example. Take the words “day” and “night.” Those words seem simple enough, but when does a “day” end and when does a “night” begin (and vice versa)?</p>
<p>It’s very likely you can come up with an answer for yourself for what is the difference between night and day, but how sure are you that other people would have the exact same definitions? And are you sure that *<em>everyone</em>* would have the exact same definitions?</p>
<p>Let me offer some possibilities:</p>
<ul>
<li>End of day is the end of the standard work day (as in, “Get me that report by the end of the day!”), so 5:00 p.m. (but is this really the end of the “standard” work day? What is the “standard” work day anyway? You see how ambiguity multiplies??)</li>
</ul>
<ul>
<li>End of day is the moment the sun fully sets, but even after sunset, it is still light out because of the twilight, so…</li>
</ul>
<ul>
<li>End of day is the moment when darkness completely falls.</li>
</ul>
<ul>
<li>End of day is when the clock strikes midnight and the next “day” begins.</li>
</ul>
<p>There may be even more possibilities, but the point is that “plain” language, when scrutinized, often is not as plain as it seems.</p>
<p>Why don’t we notice the ambiguity of ordinary speech more often? Mostly, because ambiguities are routinely cleared up through conversation.</p>
<p>For example, I might say, “See you at the end of the day.” And you might say, “Great. Um…do you mean 5 o’clock?” And I might say, “Sorry, I meant 5:30.” And through the conversation we would understand each other.</p>
<p>Conversations, however, are not very useful for understanding legal documents for a simple reason: when legal documents come into play, there is usually a dispute, and if there is a dispute, both parties have an incentive to interpret words in the way that is most favorable to that person’s personal interests. So, just asking someone what they “meant” is unlikely to elicit a fully truthful answer.</p>
<p>What’s the solution? Be specific. Very specific. That means use technical terms with well understood meanings. That means use verbose descriptions. That means try to cover all conceivable contingencies.</p>
<p>Once you start writing defensively like this, you get unwieldy, hard-to-read documents, or what is sometimes called “legalese.”</p>
<p>It’s not pretty. It’s not easy to read. But when done correctly, these legal documents avoid disputes by having a clarity that our ordinary speech usually lacks.</p>
<p>By the way, if you’re interested in this topic and others like it, I discuss this at length in my book <em>The Legal Mind: How the Law Thinks</em>, which you can check out on Amazon by clicking <a href="https://www.amazon.com/Legal-Mind-Daniel-Park-ebook-dp-B00GXF8VSO/dp/B00GXF8VSO/">here</a>.</p>
<p><i>Note: This post first appeared in response to a question posed on <a href="https://www.quora.com/Why-are-contracts-not-written-in-plain-English/answer/Dan-Park-16">Quora</a>.</i></p>Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-16726729278938508742018-12-27T16:16:00.001-08:002018-12-27T16:22:01.738-08:00Hooray for the Public Domain<p>For the first time in twenty years, on January 1, 2019, some copyrighted works in the United States will at long last enter the public domain. This is big news, reports Glenn Fleishman for the Smithsonian Magazine in <a href="https://www.smithsonianmag.com/arts-culture/first-time-20-years-copyrighted-works-enter-public-domain-180971016/">For the First Time in More Than 20 Years, Copyrighted Works Will Enter the Public Domain</a>.</p>
<p>It’s been so long since any copyrighted works have entered the public domain, it’s possible that many of us have forgotten what the public domain even is. </p>
<p>A work in <a href="https://fairuse.stanford.edu/overview/public-domain/welcome/">the public domain</a> can be copied, distributed, modified, and publicly performed by anyone and everyone. You can <a href="https://standardebooks.org/">republish the work verbatim</a> or create adaptations (like <a href="https://www.amazon.com/Pride-Prejudice-Zombies-Classic-Ultraviolent/dp/1594743347">Pride and Prejudice and Zombies</a>). It’s the plays of Shakespeare, the music of Mozart, and the adventures of Sherlock Holmes (<a href="https://www.techdirt.com/articles/20150524/17521431095/sherlock-holmes-case-never-ending-copyright-dispute.shtml">mostly</a>). The public domain is our shared culture, free to be used and reused by the people at large.</p>
<p>And for twenty years, not a single copyrighted work in the United States has entered the public domain due to the expiration of its copyright term. That’s a long time.</p>
<p>The original Copyright Act (enacted by many of the same people who wrote the American Constitution) provided that all <a href="https://en.wikipedia.org/wiki/Copyright_Act_of_1790">copyrights expired in 14 years</a>. Let that sink in: 14 years. Nowadays, copyrights last <a href="https://www.copyright.gov/help/faq/faq-duration.html">the life of the author plus 70 years or 95 years in the case of corporate copyrights</a>. In other words, if a twenty-year-old songwriter pens the next great American ballad, assuming the songwriter lives to be 80 years old, that song would not enter the public domain for <em>130 years</em> (that is, the year 2,148).</p>
<p>The effect of this gigantic expansion of the terms of copyrights is that more than three quarters all of the culture created in the 20th century is still under copyright and has yet to enter the public domain. The last works to see their copyright terms expire and enter the public domain were published when Warren G. Harding was President of the United States, the roaring ’20s were just getting started, and the Great Depression, World War II, and the atom bomb were still far in the future. </p>
<p>We are the first generation of Americans not to have free access to the culture of our grandparents, all because of the massive expansion of copyrights.</p>
<p>Finally, that is beginning to change. Unless Congress pulls the rug out from under the American people (<a href="https://en.wikipedia.org/wiki/Copyright_Term_Extension_Act">again</a>), every year from now on, another year’s worth of twentieth-century copyrights will expire, beginning next year with works published in 1923, and then slowly marching, year by year, through the rest of the century. When these works enter the public domain, they will be available to anyone and everyone to do with whatever their imaginations can think of. I, for one, can’t wait to see what creative people come up with. </p>Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-90510078331450154502018-11-27T21:20:00.001-08:002018-11-27T21:20:20.505-08:00The Case Against Patents<p>You probably already know that patents are monopolies granted by the government that prohibit anyone but the patent holder from making, using, or selling the patented invention for some period of time (twenty years in the United States). Generally, the law frowns on monopolies because they are bad for competition, which usually means bad news for consumers in the form of higher prices and limited supplies, but patents are an exception to the general rule. </p>
<p>Why’s that? Good question. The theory is that patents provide incentives for people and companies to invent new things and the general public is better off getting access to these innovations, even if it means they have to pay monopoly prices for a couple of decades.</p>
<p>But patents have their critics. Mainly the critics argue that patents don’t generate that many new products or services that wouldn’t have been created even without the government-granted monopoly, and instead nowadays patents are very often wielded as weapons that stifle innovation by threatening lawsuits against companies that are providing valuable services to the public.</p>
<p>Whether patents are good or bad is a complicated question, but PolyMatter has a great video on YouTube that explains the case against patents in a way that’s easy to understand. Whatever your opinion is on patents, the video is worth watching to stimulate your thinking on an important topic.</p>
<p>Link to video: <a href="https://www.youtube.com/watch?v=X0uv5jFaJFk">The Case Against Patents - Amazon’s 1-Click “Invention”</a></p>Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-48180876873660526372018-07-22T15:29:00.000-07:002018-10-28T12:17:01.791-07:00What's a Preliminary Injunction?<p>It is not at all uncommon for a plaintiff in a lawsuit to ask a court for a <em>preliminary injunction</em>. So, what’s a preliminary injunction?</p>
<p>An <em>injunction</em> is an order from a court instructing a person to do something or to refrain from doing something. For example, say your local zoning board has refused to issue a permit, but you think that under the law you’re entitled to the permit. If a court agrees, it could issue an order to the zoning board commanding the board to give you the permit. That order would be an injunction.</p>
<p>But what about a <em>preliminary</em> injunction? Preliminary means something that comes before the main action or event. In lawsuits, the main event is the trial. So, a preliminary injunction is an injunction that a court issues <em>before</em> trial.</p>
<p>It sounds simple, but this is actually somewhat surprising and kind of a big deal. Why? Because the trial is when the court decides who wins and who loses the case. Issuing a preliminary injunction means that the court is ordering someone to do something, even though who will be the ultimate winner and loser is still up in the air.</p>
<p>Everyone is entitled to their day in court, and it’s kind of unfair to treat someone like they’ve already lost before they had a full hearing. Nevertheless, sometimes preliminary injunctions are necessary to make sure that the court’s decision in a case has a real impact and doesn’t become just an academic exercise.</p>
<p>Imagine, for example, that the city has decided to build a freeway through the middle of your house. You like your house and would very much prefer not to have cars traveling at high speeds through your living room. So, you sue the city, but you have a problem. The city’s bulldozers are on their way to knock your house down, and your trial is still a year away. What to do?</p>
<p>You guessed it. The answer is to get a preliminary injunction and have the court order the city to stop its bulldozers from flattening your house. The court order keeps your house standing until a trial can sort out whether the city has the right to knock it down.</p>
<p>In other words, the purpose of a preliminary injunction is not to give one side an advantage over the other, but rather to preserve the parties’ positions until a trial can figure out who is right under the law. Because preliminary injunctions have a tightly defined purpose and because they ask the court to take a significant action without the benefit of a trial and a final judgment, preliminary injunctions are hard to get. Courts have described them as an “extraordinary remedy” that will be granted only if certain conditions are met.</p>
<p>What are those conditions? I’m glad you asked. There are four.</p>
<p>First, the plaintiff must show a likelihood of success on the merits. In other words, the plaintiff must show that she is <em>likely</em> to win the case when she gets to trial. People with weak cases don’t get preliminary injunctions.</p>
<p>Second, the plaintiff must show that, without the injunction, she will suffer irreparable harm. A harm is irreparable if there is no way for it to be fixed later. If a bulldozer knocks down your house, there is no way to put the house back together again just as it was.</p>
<p>Lots of injuries can be fixed by money. But some things are unique, and the irreparable harm idea is to give protection to things that once lost or broken can never adequately be repaired.</p>
<p>Third, the plaintiff must show that the balance of the equities tips in her favor. This is a fuzzy concept, but it gets at the idea that if the plaintiff has acted badly or has created the problem herself in some way, then she doesn’t deserve extraordinary help from the court in the form of a preliminary injunction.</p>
<p>For example, if the plaintiff hastily constructs a shack directly in the path of the city’s bulldozers, a court might decide that the danger to the structure was self-inflicted, and so the equities tip against giving the plaintiff a preliminary injunction.</p>
<p>Finally, the public interest must support the issuance of the preliminary injunction. This factor is also a little squishy, but it gets at the idea that in some cases, more people than just the parties to the lawsuit have an interest in the outcome, and since a preliminary injunction is an extraordinary remedy, the court should only issue one if doing so is in the public interest.</p>
<p>So, what’s a preliminary injunction? It’s an extraordinary order from a court, issued before trial, commanding a party to take an action or to refrain from taking an action that can be obtained only by showing (1) a likelihood of success on the merits, (2) irreparable harm, (3) the balance of the equities, and (4) the public interest.</p>
<p>And that’s it. If you had ever wondered what a preliminary injunction was, now you know .</p>Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-40667336598827727862018-06-23T10:50:00.000-07:002018-06-23T10:52:20.530-07:00How to Start a Lawsuit in Federal Court<p>How do you start a lawsuit in federal court? The answer is given in Federal Rule of Civil Procedure Number 3.</p>
<p>Federal Rule of Civil Procedure Number 3 is short and sweet: “A civil action is commenced by filing a complaint with the court.”</p>
<p>Yet in this one sentence, there is a lot going on. Let’s unpack it.</p>
<p>“A civil action” is a lawsuit that does not seek criminal penalties, like fines or imprisonment. Usually, civil actions are between private parties, but governments can also bring civil actions and have civil actions brought against them.</p>
<p>Typical civil actions are claims for breaches of contracts—that is, where one party fails to perform a promise—or for torts—that is, where one party injures another party, either by accident or on purpose, like, for example, in a car accident.</p>
<p>How does one commence a civil action, or in other words, how do you start a lawsuit? As explained in Rule 3: by filing a complaint with the court.</p>
<p>“Filing … with the court” usually means going to the courthouse, finding the clerk’s office, and delivering the necessary paperwork, and of course, paying the required filing fees. Recently, electronic filing is becoming increasingly available, so trips to the court house may not be necessary for much longer.</p>
<p>And what is it that you have to file with the court to get your civil action going? Rule 3 has the answer for that as well: A complaint.</p>
<p>That’s … not very illuminating. What’s a complaint, you might ask? Good question.</p>
<p>A complaint is a written document, and it’s the way the plaintiff in a lawsuit notifies the court and the defendant of why the plaintiff is bringing the lawsuit. Complaints have three main parts.</p>
<p>First, complaints contain allegations. Allegations are the plaintiff’s version of events. At this point in the process, a plaintiff doesn’t have to offer any proof that the allegations are true. The plaintiff merely asserts that the allegations are true. Proof of whether the allegations are true or not will come later in the process.</p>
<p>Second, complaints contain claims. Claims are the legal grounds that justify the plaintiff’s lawsuit. These theories could be anything the law allows, including lawsuits for breach of contract or negligence, but also violations of anti-discrimination or antitrust laws, or anything else authorized by the legislature or the courts. By the way, “claims” are , also sometimes called <em>causes of action</em>, a name that makes sense because the claim is what <em>causes</em> the <em>action</em>, which is another name for <em>lawsuit</em>.</p>
<p>Finally, complaints contain prayers for relief. The prayer for relief describes what the plaintiff hopes to get out of the lawsuit. Usually, plaintiffs want damages, which is another word for money. Sometimes, plaintiffs also want injunctions, which are court orders compelling the defendant to do something or to refrain from doing something. There are other remedies available, but damages and injunctions are the big ones, so a discussion of other remedies will have to wait for another time.</p>
<p>And … that’s about it. To recap, Federal Rule of Civil Procedure 3 requires civil actions to be commenced by filing a complaint in court. Complaints have three parts: allegations, claims, and prayers for relief. </p>
<p>And with that simple piece of paper, your lawsuit is off and running.</p>Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-80865850943516082452017-01-15T10:26:00.001-08:002017-01-15T10:26:59.469-08:00Raise Your Right Hand<p>On January 20, Donald J. Trump will take the oath of the office to become the 45th President of the United States. In all likelihood, when he takes the oath, he will place his left hand on a Bible and raise his right hand in the air. This is the tradition for presidential oath-taking in recent years, but just how far back does this tradition go?</p>
<h2>George Washington Leads the Way</h2>
<p>George Washington, our nation’s first president, established innumerable precedents for how a President should act. These precedents, however, did not include raising his right hand when he took the first oath of office in New York in March 1989.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="Washington's_Inauguration.jpg" src="https://lh3.googleusercontent.com/-syBDv9dCjSw/WHu8xe4PTUI/AAAAAAABSAo/T5wlyZD-e9o/Washington%252527s_Inauguration.jpg?imgmax=1600" alt="Washington's Inauguration" width="225" height="150" border="0" /></p>
<p>While there are no photographs of the event, this artist’s rendering shows Washington placing his right hand on a Bible, while his left hovers over his heart.</p>
<p>Another artist depicted more or less the same stance: right hand on the Bible, left hand by his side and resting on the hilt of his sword.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="washington-1789-Swearing In.jpg" src="https://lh3.googleusercontent.com/-Ih6YIlsz5fs/WHu80rfzO3I/AAAAAAABSAw/mDRk2l2up6I/washington-1789-Swearing%252520In.jpg?imgmax=1600" alt="Washington 1789 Swearing In" width="475" height="331" border="0" /></p>
<p>So when did Presidents start raising their right hands? It’s not entirely clear.</p>
<p>Drawings of early presidential inaugurations can be hard to find, and of course, you can never be sure whether the drawing depicts what really happened or is just a product of the artist’s imagination.</p>
<p>In 1817, James Monroe became the fifth President of the United States. At his swearing-in, Monroe followed Washington’s lead and placed his right hand on a Bible and kept his left hand by his side.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1817 - monroe-inauguration-P.jpg" src="https://lh3.googleusercontent.com/-vWdJVzTNzEE/WHu86yGslVI/AAAAAAABSBA/c9KeXl8USeM/1817%252520-%252520monroe-inauguration-P.jpg?imgmax=1600" alt="1817 monroe inauguration P" width="518" height="269" border="0" /></p>
<h2>Andrew Jackson Puts His Hand Up</h2>
<p>In 1829, Andrew Jackson ascended to the presidency riding a wave of white populism. In this portrait, Andrew proudly holds his right hand high. This is the earliest depiction of a President that I could find of where the President’s right hand is up and left hand is on the Bible.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1829 - Andrew Jackson.jpg" src="https://lh3.googleusercontent.com/-r10ZI_Yu3es/WHu89nsAqXI/AAAAAAABSBI/NMPtdu-25wo/1829%252520-%252520Andrew%252520Jackson.jpg?imgmax=1600" alt="1829 Andrew Jackson" width="302" height="206" border="0" /></p>
<p>You might think, then, that Andrew Jackson kicked off the tradition of raising your right hand and the practice stuck from then forward, but that doesn’t appear to be the case.</p>
<h2>Abraham Lincoln Puts His Hand Down</h2>
<p>Abraham Lincoln, the sixteenth president, seems to have reverted to Washington’s model of right hand on Bible and left hand down for at least his second inauguration.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1865 - Lincoln.jpg" src="https://lh3.googleusercontent.com/-5NnayIyKCf0/WHu9FzV4lMI/AAAAAAABSBk/DB1OsdciSio/1865%252520-%252520Lincoln.jpg?imgmax=1600" alt="1865 Lincoln" width="489" height="600" border="0" />Ulysses S. Grant, the eighteenth president, seems to have followed Lincoln’s lead. While I couldn’t find a drawing of Grant’s first inauguration, at his second, he puts his right hand on the Bible and keeps his left hand by his side.</p>
<p><br /><img style="display: block; margin-left: auto; margin-right: auto;" title="1873 - Ulysses S Grant.jpg" src="https://lh3.googleusercontent.com/-95xh_KNsayw/WHu9P0eFkEI/AAAAAAABSB8/-77uWl-BJ9M/1873%252520-%252520Ulysses%252520S%252520Grant.jpg?imgmax=1600" alt="1873 Ulysses S Grant" width="525" height="500" border="0" /></p>
<h2>Ups and Downs</h2>
<p>In 1877, after a bitterly contested election, Rutherford B. Hayes ascends to the presidency. Hayes, it seems, decided not to touch a holy book and instead raised his right hand and kept his left hand by his side.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1877 - Rutherford B Hayes.jpg" src="https://lh3.googleusercontent.com/-ouTuEy0x7pg/WHu9SNXnU2I/AAAAAAABSCE/HJ_CTl_acsA/1877%252520-%252520Rutherford%252520B%252520Hayes.jpg?imgmax=1600" alt="1877 Rutherford B Hayes" width="388" height="450" border="0" /></p>
<p>James Garfield and Chester Arthur both followed Hayes’s lead when they were sworn in as president in 1881, Garfield first, and then Arthur after Garfield was assassinated.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1881 - Garfield.jpg" src="https://lh3.googleusercontent.com/-vJ412hLW-iQ/WHu9U7QTWwI/AAAAAAABSCM/-S39OocsMGg/1881%252520-%252520Garfield.jpg?imgmax=1600" alt="1881 Garfield" width="168" height="250" border="0" /></p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1881 - Chester Arthur.jpg" src="https://lh3.googleusercontent.com/-LhsZmIDI_e0/WHu9WwKnx9I/AAAAAAABSCU/JQ5gL90hwiM/1881%252520-%252520Chester%252520Arthur.jpg?imgmax=1600" alt="1881 Chester Arthur" width="342" height="192" border="0" /></p>
<p>So it would seem that, by this point, the matter is settled. Right hands go up during swearing-ins. But not necessarily.</p>
<p>In 1889, Benjamin Harrison in a rain-soaked ceremony put his right hand on the Bible and kept his left hand down.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1889 - harrison2.jpg" src="https://lh3.googleusercontent.com/-pfXObOvqfu4/WHu9Z4hAphI/AAAAAAABSCc/NCcFlSTBiDQ/1889%252520-%252520harrison2.jpg?imgmax=1600" alt="1889 harrison2" width="471" height="500" border="0" /></p>
<h2>Finally a Photograph</h2>
<p>William Mckinley became president in 1897. He seems to have thrown all tradition to the wind and put his <em>left </em>hand on the Bible and kept his right hand by his side.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1897 McKinley - first.jpg" src="https://lh3.googleusercontent.com/-eqdzfwdNVNk/WHu9dHTjNOI/AAAAAAABSCo/bRqtj3ymbwY/1897%252520McKinley%252520-%252520first.jpg?imgmax=1600" alt="1897 McKinley first" width="346" height="233" border="0" /></p>
<p>And finally in 1901, we have a photograph. McKinley is inaugurated a second time, and this time we have a photo that clearly shows that, indeed, McKinley did not raise his right hand. In the photo, however, McKinley has his right hand on the Bible, while in his left hand he holds some papers.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1901 - Mckinley 2d.jpg" src="https://lh3.googleusercontent.com/-bbJ8fYv7j8k/WHu9fkd1hSI/AAAAAAABSCw/uF3aAdF0sSo/1901%252520-%252520Mckinley%2525202d.jpg?imgmax=1600" alt="1901 Mckinley 2d" width="320" height="180" border="0" /></p>
<p>A few months after his inauguration, McKinley is assassinated, and his Vice President Theodore Roosevelt becomes President, at the relatively tender age of 41. In a sketch of the hurried swearing in, Roosevelt holds his right hand high and uses his left to clutch the lapel of his jacket.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1901 - Theodore Roosevelt - first.jpg" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhuD8xWdG4cU3a5LaQIHR__n43fa3BdODvbLQBGF5XGtHXwY5c021ztmKWezTBddbtbETpz_PgyQTZupYdha2qAHEk4WhtoGWz7sa-I6CPm8vqfX8du5EJiMtD2iw1W7SNTRO7KcaM2MAHY/?imgmax=1600" alt="1901 Theodore Roosevelt first" width="263" height="200" border="0" /></p>
<p>Roosevelt’s second inauguration was a more formal affair, and here again we have a photograph. While the angle is not ideal, it seems clear that Roosevelt indeed is raising his right hand while his left hand hangs by his side. </p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1905 - TR.jpg" src="https://lh3.googleusercontent.com/-rGn9WeZiO9A/WHu9k7VlkXI/AAAAAAABSDA/7q1bTVopcMY/1905%252520-%252520TR.jpg?imgmax=1600" alt="1905 TR" width="349" height="281" border="0" /></p>
<h2>When Is This Tradition Going to Start?</h2>
<p>Roosevelt was followed by William Howard Taft, but I could not find a photo of Taft’s inauguration. In 1913, however, Woodrow Wilson becomes President, and Wilson goes his own way, placing his right hand on a Bible and holding the Bible with his left hand. </p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1913 - wilson-inaugural-1.jpg" src="https://lh3.googleusercontent.com/-01PBIi9JV7c/WHu9nwB-3HI/AAAAAAABSDI/sNs1u_kUI8A/1913%252520-%252520wilson-inaugural-1.jpg?imgmax=1600" alt="1913 wilson inaugural 1" width="256" height="204" border="0" /></p>
<p> </p>
<p>The next President is Warren G. Harding, who takes the oath of office in 1921. Unlike his immediate predecessor, Harding clearly raises his right hand and keeps his left hand by his side.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1921 - harding2.jpg" src="https://lh3.googleusercontent.com/-IKdcpHvTAfo/WHu9qg-GlNI/AAAAAAABSDQ/7PMb7Zun3N0/1921%252520-%252520harding2.jpg?imgmax=1600" alt="1921 harding2" width="266" height="200" border="0" /></p>
<p>Calvin Coolidge, Harding’s successor, also goes with the right hand up and the left hand down.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1925-coolidge.jpg" src="https://lh3.googleusercontent.com/-NOpIlPem67g/WHu9tLngcWI/AAAAAAABSDY/7DNwFa_zAFE/1925-coolidge.jpg?imgmax=1600" alt="1925 coolidge inauguration" width="310" height="200" border="0" /></p>
<p>Just when you think the tradition is firmly established, Herbert Hoover comes along and goes back to putting his right hand on the Bible and keeping his left hand down.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1929 - Hoover inauguration.jpg" src="https://lh3.googleusercontent.com/-wYnLGgi7PMY/WHu91RSoczI/AAAAAAABSD0/6T_5kdWGHEY/1929%252520-%252520Hoover%252520inauguration.jpg?imgmax=1600" alt="1929 Hoover inauguration" width="331" height="232" border="0" /></p>
<p>And then in 1933 we get to Franklin Delano Roosevelt, the man who will take the oath of office of the President of the United States more times than any other person in the country’s history. As he takes the oath for the first time, he stands with his right hand held high.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1933 - Roosevelt2.jpg" src="https://lh3.googleusercontent.com/-b9SNYIz_FQI/WHu94FYL--I/AAAAAAABSD8/XIp0-atVWsk/1933%252520-%252520Roosevelt2.jpg?imgmax=1600" alt="1933 Roosevelt2" width="338" height="228" border="0" /></p>
<p>So that’s it then, right? Right hands up it is. That is, until the next person, which is Harry S. Truman, Roosevelt’s Vice President, hastily inaugurated in the waning days of World War II after Roosevelt’s sudden death. What does Truman do in his private swearing-in ceremony? It looks like right hand on top of the Bible and left hand underneath it.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1945 - Truman.jpg" src="https://lh3.googleusercontent.com/-fsjlXYkr-6A/WHu96xc4MVI/AAAAAAABSEI/-YTYC6L6ifg/1945%252520-%252520Truman.jpg?imgmax=1600" alt="1945 Truman" width="499" height="389" border="0" /></p>
<p>But in another photo, it seems Truman is holding the Bible and raising his right hand. So maybe Truman started with both hands on the Bible and then raised his right hand. It’s not entirely clear.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1945 - Truman hand up.jpg" src="https://lh3.googleusercontent.com/-VgTBpotuCZE/WHu992Ui3wI/AAAAAAABSEQ/njjy-0v1T0Y/1945%252520-%252520Truman%252520hand%252520up.jpg?imgmax=1600" alt="1945 Truman hand up" width="249" height="213" border="0" /></p>
<p>Truman’s second inauguration in 1949 is more clear. This time, Truman clearly takes the oath with his right hand raised.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1949 - Truman's Second Inauguration.jpg" src="https://lh3.googleusercontent.com/-pPX59AG11UY/WHu-AZUnzWI/AAAAAAABSEY/BRNLJQYigNs/1949%252520-%252520Truman%252527s%252520Second%252520Inauguration.jpg?imgmax=1600" alt="1949 Truman s Second Inauguration" width="300" height="234" border="0" /></p>
<h2>Can We Call It a Tradition Yet?</h2>
<p>In 1953, Dwight D. Eisenhower, the General who was the Supreme Allied Commander during World War II, becomes President with his right hand raised.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1953 - Eisenhower.jpg" src="https://lh3.googleusercontent.com/-CetCeyuxXUg/WHu-CWIP68I/AAAAAAABSEk/h-hF00rlDPI/1953%252520-%252520Eisenhower.jpg?imgmax=1600" alt="1953 Eisenhower" width="255" height="177" border="0" /></p>
<p>And he does the same thing for the beginning of his second term in 1957.</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1957 - Eisenhower.jpg" src="https://lh3.googleusercontent.com/-D-45MXEi18o/WHu-FBdeOHI/AAAAAAABSE4/aA5Gmujlz2k/1957%252520-%252520Eisenhower.jpg?imgmax=1600" alt="1957 Eisenhower" width="545" height="500" border="0" /></p>
<p>At this point, it’s right hands up all the way through. For completeness, pictures of the other presidential swearing-in ceremonies follow.</p>
<p>1961 — John F. Kennedy</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1961 - Kennedy.jpg" src="https://lh3.googleusercontent.com/-o0aKbav3dFU/WHu-HaChGmI/AAAAAAABSFA/A5NWxdY2vvw/1961%252520-%252520Kennedy.jpg?imgmax=1600" alt="1961 Kennedy" width="249" height="256" border="0" /></p>
<p>1963 — Lyndon B. Johnson</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1963 Lyndon Johnson.jpg" src="https://lh3.googleusercontent.com/--tSwfPQ_VRE/WHu-Kd8Eq1I/AAAAAAABSFI/D2v6sU-Kzj4/1963%252520Lyndon%252520Johnson.jpg?imgmax=1600" alt="1963 Lyndon Johnson" width="379" height="301" border="0" /></p>
<p>1965 — Johnson again</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1965 - LBJ.jpg" src="https://lh3.googleusercontent.com/-7hAXWi8eS2E/WHu-OnYPvFI/AAAAAAABSFY/qQoDxZh3e2s/1965%252520-%252520LBJ.jpg?imgmax=1600" alt="1965 LBJ" width="256" height="171" border="0" /></p>
<p> </p>
<p>1969 — Richard M. Nixon</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1969 - Nixon.jpg" src="https://lh3.googleusercontent.com/-XN0TV1_VpBs/WHu-Q1PYB8I/AAAAAAABSFg/430RKLAgYOY/1969%252520-%252520Nixon.jpg?imgmax=1600" alt="1969 Nixon" width="299" height="208" border="0" /></p>
<p>1973 — Nixon Again</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1973 - Nixon.jpg" src="https://lh3.googleusercontent.com/-InPkgAWCTuM/WHu-VGUVoyI/AAAAAAABSFw/_ZJZ9AoMpy4/1973%252520-%252520Nixon.jpg?imgmax=1600" alt="1973 Nixon" width="302" height="170" border="0" /></p>
<p>1974 — Gerald F. Ford</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1974 - Ford Inauguration.jpg" src="https://lh3.googleusercontent.com/-bMOuPlXDeLE/WHu-a9050cI/AAAAAAABSGM/TUcqlgzDihw/1974%252520-%252520Ford%252520Inauguration.jpg?imgmax=1600" alt="1974 Ford Inauguration" width="224" height="153" border="0" /></p>
<p> </p>
<p>1977 — Jimmy Carter</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1977 - carter.jpg" src="https://lh3.googleusercontent.com/-f99tc1s2Bmc/WHu-f4LQl2I/AAAAAAABSGU/8l-dcNSWr_Q/1977%252520-%252520carter.jpg?imgmax=1600" alt="1977 carter" width="489" height="276" border="0" /></p>
<p>1981 — Ronald Reagan</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1981 - Reagen.jpg" src="https://lh3.googleusercontent.com/-mSbqpPftp08/WHu-jUc_kKI/AAAAAAABSGs/RSSG74vZvQY/1981%252520-%252520Reagen.jpg?imgmax=1600" alt="1981 Reagen" width="518" height="269" border="0" /></p>
<p>1985 — Reagan again</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1985 - Reagen.jpg" src="https://lh3.googleusercontent.com/-p1elC--w6IY/WHu-nfhJ5DI/AAAAAAABSG4/NAPv6TAeXlo/1985%252520-%252520Reagen.jpg?imgmax=1600" alt="1985 Reagen" width="374" height="247" border="0" /></p>
<p> </p>
<p>1989 — George H.W. Bush</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1989 - George HW Bush.jpg" src="https://lh3.googleusercontent.com/-IDsL1Ojfu1o/WHu-q-CFy9I/AAAAAAABSHE/3Iutz-k-hmM/1989%252520-%252520George%252520HW%252520Bush.jpg?imgmax=1600" alt="1989 George HW Bush" width="285" height="208" border="0" /></p>
<p> </p>
<p>1993 — William Jefferson Clinton</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1993 - clinton_first_inaugural.jpg" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh7g1FpcC4L3LS0r7JvkrAbOkhyphenhyphenD1qHkjKdFOrR8HGcuDT9gRF6PZz2RydQAS3nFK3VeYZryqZONFzRvwKdGtQJmBA7t_-nkuwjPv64l2ij3umKYnpSXfkyoEUViHsngY5enRCnZ2xWJ2Or/?imgmax=1600" alt="1993 clinton first inaugural" width="275" height="190" border="0" /></p>
<p> </p>
<p>1997 — Clinton again</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="1997 - clinton.jpg" src="https://lh3.googleusercontent.com/-AuGGBCp1K3Y/WHu-ws60yFI/AAAAAAABSHc/0dEpWmTuOY0/1997%252520-%252520clinton.jpg?imgmax=1600" alt="1997 clinton" width="249" height="165" border="0" /></p>
<p>2001 — George W. Bush</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="2001 - George W Bush.jpg" src="https://lh3.googleusercontent.com/-aYrn0t88Xk4/WHu-zCnKRII/AAAAAAABSHo/No18cOmlnQc/2001%252520-%252520George%252520W%252520Bush.jpg?imgmax=1600" alt="2001 George W Bush" width="512" height="341" border="0" /></p>
<p> </p>
<p>2005 — Bush again</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="2005 - George_W._Bush_second_inauguration.jpg" src="https://lh3.googleusercontent.com/-l8eCryH8phY/WHu-2MJ7n4I/AAAAAAABSH8/M9vMI0V-pRw/2005%252520-%252520George_W._Bush_second_inauguration.jpg?imgmax=1600" alt="2005 George W Bush second inauguration" width="256" height="171" border="0" /></p>
<p>2009 — Barack Obama</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="2009 - obama.jpg" src="https://lh3.googleusercontent.com/-wfmiEzH_Mt0/WHu-4aIpx1I/AAAAAAABSIE/3STTDLHhA3k/2009%252520-%252520obama.jpg?imgmax=1600" alt="2009 obama" width="599" height="401" border="0" /></p>
<p>2013 — Obama again</p>
<p><img style="display: block; margin-left: auto; margin-right: auto;" title="2013 - Obama.jpg" src="https://lh3.googleusercontent.com/-pi3ySh6C1B0/WHu-78G_UzI/AAAAAAABSIQ/oP5A40OdZgY/2013%252520-%252520Obama.jpg?imgmax=1600" alt="2013 Obama" width="598" height="399" border="0" /></p>
<h2>In summary...</h2>
<p>So that’s it. It seems that the tradition of raising the right hand to take the oath of office became firmly established in the twentieth century. What this stroll through history shows, however, is that even though it may seem that right hands raised may be the only way to take an oath, it has not always been so in our nation’s history. Time’s change, and even seemingly firmly rooted traditions are susceptible to the shifting sands of time.</p>Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-62468309981657593832017-01-07T15:20:00.002-08:002017-01-07T15:20:50.459-08:00DOJ Releases Guidance on Eyewitnesses and Photo ArraysGood news in the fight against unreliable eyewitness identifications. This week <a href="https://www.justice.gov/opa/pr/justice-department-announces-department-wide-procedures-eyewitness-identification" target="_blank">the U.S. Department of Justice released guidance</a> on steps law enforcement agents should take to reduce the chance of influencing a witness when a witness tries to make an identification from a photo array.<br />
<br />
A photo array is a group of photos shown one at a time or all at once to a witness who is asked by police whether he or she sees the perpetrator in the array. The array may or may not include the suspect.<br />
<br />
Possibly, the most significant reform is that federal agents investigating crimes should administer photo arrays using a “blind” procedure, meaning that the person who shows the witness the photos shouldn't know which photo in the array is of the suspect. The idea is to make it impossible for the person showing the photos to signal (consciously or unconsciously) to the witness which photo the police think that the witness ought to pick.<br />
<br />
The DOJ guidance is just the latest of a growing recognition in legal circles that eyewitness identifications often cannot be trusted.<br />
<br />
In 2012, <a href="http://www.publications.ojd.state.or.us/docs/S059234.pdf" target="_blank">the Supreme Court of Oregon pushed this insight significantly forward</a> when it explicitly embraced the large body of social science research that shows that the confidence of eyewitnesses in their identifications was not a reliable measure of accuracy and that witnesses were highly susceptible to having their memories shaped by subtle and not-so-subtle cues from police and prosecutors. To minimize the risk of identifications produced by suggestive procedures, the Oregon high court required prosecutors to prove that the identifications they wanted to introduce into evidence were not obtained using suggestive procedures.<br />
<br />
Also in 2012, <a href="https://scholar.google.com/scholar_case?case=5349741019649164597&q=people+v+sanchez&hl=en&as_sdt=4,104&as_ylo=2016&scilh=0" target="_blank">the Supreme Court of Kansas</a> put an end to the practice in that State of telling jurors that the “certainty” of a witness was a good reason for believing or disbelieving an eyewitness identification.<br />
<br />
These, and other developments like them, will go a long way toward ensuring that judges and juries who must weigh the testimony of eyewitnesses have the best information available when they are making decisions where justice hangs in the balance.<br />
<br />Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-41843153493134954652015-04-24T11:38:00.002-07:002015-04-24T11:38:28.712-07:00OCR Publishes New Title IX GuidanceHot off the presses, OCR has published new guidance on Title IX. You can read all the details at <a href="http://www2.ed.gov/policy/rights/guid/ocr/title-ix-coordinators.html">http://www2.ed.gov/policy/rights/guid/ocr/title-ix-coordinators.html</a>.Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-11649094871755346462015-02-18T19:11:00.001-08:002015-02-18T19:11:11.146-08:00Murderer Takes Selfie With Victim's CorpseWhat's there to say? An early frontrunner for dumbest criminal of the year. <a href="https://www.techdirt.com/articles/20150209/06275029956/hubris-defined-dumb-murderer-takes-selfie-with-his-dead-victim.shtml" target="_blank">TechDirt has the story.</a>Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-49583305014268961072015-02-18T07:18:00.000-08:002015-02-18T19:17:36.655-08:00Your Fate in Others' Hands<div class="tr_bq">
One of the scariest things about litigation is that your fate is in the hands of people you don't know who may or may not see the world the same way you do. Everyone has their own prejudices, biases, experiences, and understandings of what makes sense to them and what doesn't. Sometimes the mental predispositions of other people line up with your own thinking and sometimes they don't. It's not necessarily that one world view is "right" and another is "wrong." It's just that different people see things in different ways. Often that's a good thing because different viewpoints can be an engine of progress and a fountain of new and interesting ideas.</div>
<br />
In a legal setting, however, these differences can be terrifying because what makes perfect sense to you might seem utterly foreign or unbelievable to someone else or vice versa.<br />
<br />
Take, for example, a case where a woman reports that she was sexually assaulted. An investigation reveals that the morning after the alleged assault, the woman sent text messages to the alleged assailant saying "I'm ok" or "I'm fine." What is the right way to interpret the significance of those messages? Are the text messages admissions that nothing really happened the night before or are they signals that the woman is still processing the trauma she experienced?<br />
<br />
In <a href="http://chronicle.com/article/In-Rape-Cases-Students-/190075/" target="_blank">a recent article in the Chronicle of Higher Education</a> by Andy Thomason and Robin Wilson, here is what one lawyer who specializes in investigating allegations of sexual assaults on college campuses is quoted as saying:<br />
<blockquote>
"I’ve seen text messages exchanged very, very soon after an alleged assault, and I put less weight onto those," she says. If a woman is saying things like "It’s OK" or "I’m fine," says Ms. Kurker, "they don’t mean anything except the person just doesn’t want to deal with the situation right now." </blockquote>
<blockquote>
But if, weeks on, the alleged victim is sending friendly texts to the alleged perpetrator, that could mean something different. "It doesn’t make sense," she says, "that they would be exchanging flirty text messages after that time if something had gone wrong."</blockquote>
What's interesting about this statement by the investigator is not whether her view of what different messages at different times might mean for a particular person is right or wrong, because how would you know, especially in an individual case. Rather, the statement is striking because it offers a glimpse into the influence of preconceived notions on interpreting events and forming judgments about them.<br />
<br />
And here's the real point: everyone comes to questions of fact with preconceived notions. Sometimes we call these notions experience. Sometimes we call them common sense. Those are the positive descriptors. If we disagree with the predispositions, we call them bias, prejudice, or ignorance.<br />
<br />
For people caught up in the legal system, the reality is that winners and losers will in many cases be decided, right or wrong, by what makes sense to other people whether we agree with them or not.Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-37106776709631383352015-02-12T19:43:00.000-08:002015-02-12T20:31:00.664-08:00$60k for One Year of Stanford<a href="http://www.mercurynews.com/california/ci_27505418/stanford-tuition-rising-this-fall?source=infinite" target="_blank">The San Jose Mercury News</a> has this report today:<br />
<blockquote class="tr_bq">
<blockquote class="tr_bq">
Stanford University will hike its tuition this fall by 3.5 percent, bringing it to $45,729, the campus announced Wednesday.</blockquote>
<blockquote class="tr_bq">
The new fees will raise the undergraduate tab to $60,427 for next year, a total that includes $14,107 for room and board and $591 for a mandatory health fee.</blockquote>
</blockquote>
Because of financial aid, most students don’t pay the full sticker price, but still, that’s a lot of money. Paying full freight for four years at Stanford costs a cool quarter million. And the costs keep going up.Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-65280562829201303092015-02-07T19:38:00.000-08:002015-02-07T19:38:19.661-08:00Tamping Down on Memory Tampering<a href="http://www.americancriminallawreview.com/aclr-online/videotaping-justice-how-illinois-has-dealt-problem-police-suggestion-and-how-it-might-be-used-trial/" target="_blank">Andrew Whitman at the American Criminal Law Review</a> has this story about a new Illinois law that tries to solve the problem of police giving subtle or not-so-subtle hints to eyewitnesses trying to pick suspects out of lineups or photo arrays.<br />
<blockquote class="tr_bq">
The Illinois law counters the problems of cognitive and confirmation bias. The law first requires that photo arrays (in which witnesses are shown pictures of the suspect and “fillers”) and in-person lineups be conducted by officers who do not know which choice is the suspect. Nobody who knows the identity of the suspect is allowed in the room. Next, the law sets standards to ensure that the police’s suspect “does not unduly stand out from the fillers.” For example, it would be against the spirit of the law if all of the fillers wore prison garb, and the suspect wore a shirt and tie.</blockquote>
<blockquote class="tr_bq">
Most uniquely, the new law requires that lineups and photo array identification be videotaped by an unbiased police officer. Thus, the State of Illinois hopes to remove the guesswork of identifying bias and see for itself what’s going on.</blockquote>
Read the whole thing: <a href="http://www.americancriminallawreview.com/aclr-online/videotaping-justice-how-illinois-has-dealt-problem-police-suggestion-and-how-it-might-be-used-trial/" target="_blank">Videotaping Justice: How Illinois Has Dealt With the Problem of Police Suggestion and How it Might be Used at Trial</a>Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-10703281159998070922015-01-30T07:15:00.000-08:002015-01-30T09:16:12.376-08:00Dartmouth, Hard Liquor, and Sexual AssaultIt is not always fashionable to connect alcohol with sexual assault, although <a href="http://www.bjs.gov/content/pub/pdf/rsavcaf9513.pdf" target="_blank">studies show</a> significant percentages of sexual assaults involve alcohol. Dartmouth College, however, seems to see a connection.<br />
<br />
<a href="http://abcnews.go.com/US/wireStory/dartmouth-president-announce-safety-inclusion-plans-28574818" target="_blank">According to the Associated Press</a>, Dartmouth will ban hard liquor on its campus and increase training programs to prevent sexual violence:<br />
<blockquote class="tr_bq">
<span style="background-color: white; color: #333333;">Dartmouth College banned hard liquor on campus Thursday and said all students will have to take part in a sexual violence prevention program all four years they are at the Ivy League school.</span></blockquote>
It will be interesting to see if Dartmouth's experiment will be effective.<br />
<br />
Source: <a href="http://abcnews.go.com/US/wireStory/dartmouth-president-announce-safety-inclusion-plans-28574818" target="_blank">Dartmouth Bans Hard Liquor, Takes Steps to Prevent Rape</a>Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-78619447334976473392015-01-28T19:52:00.002-08:002015-01-30T11:55:17.192-08:00Words You Don't Want to Hear"We find the defendant guilty of aggravated rape." These are words you definitely never want to hear if you're sitting in the defendant's chair in a criminal trial, but two former Vanderbilt football players in a Tennessee courtroom had to listen to just those words as the jury foreperson read out guilty verdicts against them for sexually assaulting a woman who was passed out.<br />
<br />
At the trial, the football players apparently tried to argue that they were too drunk to know what they were doing. Bad idea. <a href="http://www.washingtonpost.com/news/morning-mix/wp/2015/01/28/two-former-vanderbilt-football-players-convicted-of-rape-thanks-to-pictures-one-of-them-took-of-it/?tid=pm_national_pop" target="_blank">The Washington Post has the story</a>:<br />
<blockquote class="tr_bq">
<blockquote class="tr_bq">
The defense blamed alcohol.</blockquote>
<blockquote class="tr_bq">
“The testimony was he was crazy drunk and didn’t know what he was doing,” Worrick Robinson, Batey’s attorney, said at trial.</blockquote>
<blockquote class="tr_bq">
Such arguments that the defendants were not in their right minds — or that their actions should be blamed on a college culture of licentiousness — did not go over with the jury.</blockquote>
</blockquote>
This case illustrates that blaming alcohol isn't going to beat a rape charge. In California, <a href="http://www.thelegalmindatwork.com/2015/01/california-attorney-general-issues.html" target="_blank">as the Attorney General recently explained</a>, voluntary intoxication is no defense to lack of consent. (Pen. Code, § 29.4, CALCRIM No. 3426.)<br />
<br />
The drunk defense won't even beat a college campus disciplinary proceeding. As the Attorney General put it, “under SB 967, if the accused believed—due to the accused’s own intoxication or recklessness—that the complainant consented, this belief is not a valid excuse for any lack of affirmative consent. (Ed. Code, § 67386, subd. (a)(2)(A).)”<br />
<br />
“I was just drunk out of my mind,” <a href="http://www.washingtonpost.com/news/morning-mix/wp/2015/01/28/two-former-vanderbilt-football-players-convicted-of-rape-thanks-to-pictures-one-of-them-took-of-it/?tid=pm_national_pop" target="_blank">said one of the Vanderbilt defendants</a>. “This is something I would never do in my right state of mind.”<br />
<br />
Maybe, maybe not. It doesn't really matter. He did it, and so he is going to jail.<br />
<br />
Getting drunk is dangerous. It is dangerous because it makes people more vulnerable to crime. It is dangerous because it makes people more likely to commit crimes. These two Vanderbilt football players learned that lesson the hard way.Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-72698445240169871972015-01-28T07:11:00.000-08:002015-01-28T20:31:23.962-08:00California Attorney General Issues Guidance on Sexual Assaults on College CampusesYesterday, the Attorney General of California issued <a href="http://oag.ca.gov/sites/all/files/agweb/pdfs/law_enforcement/info-bulletin-dle-2015-01.pdf" target="_blank">guidance</a> on two new California laws that impose new requirements for how colleges and universities in California must respond to reports of sexual misconduct on their campuses.<br />
<br />
Broadly speaking, AB 1433 requires California colleges to report to local law enforcement reports of violent crimes, hate crimes, or sexual assaults.<br />
<br />
SB 967 is the well publicized "affirmative consent" law that requires California colleges to require "affirmative consent" as the standard for consent on their campuses.<br />
<blockquote class="tr_bq">
“Affirmative consent” is defined as an affirmative, conscious, and voluntary agreement to engage in sexual activity. Under the law, neither the lack of protest or resistance nor silence constitutes consent, and consent may be withdrawn at any time. Affirmative consent must be given by all parties to sexual activity.</blockquote>
The law also requires campuses to use the preponderance of the evidence standard in evaluating reports, which is codifies into state law <a href="http://www.thelegalmindatwork.com/2015/01/sexual-harassment-and-assault-on.html" target="_blank">the guidance issued by the US Department of Education's Office for Civil Rights</a>.<br />
<br />
Many of SB 967's requirements track obligations already in place under the Clery Act, so the Attorney General's description of the California law may offer insights for institutions of higher education outside of California's borders.<br />
<br />
As always, read the whole thing for the full story: <a href="http://New and Amended Campus Safety Laws; Points of Collaboration between Campus Personnel and Law Enforcement" target="_blank">New and Amended Campus Safety Laws; Points of Collaboration between Campus Personnel and Law Enforcement </a>Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-5455755364056970552015-01-26T07:34:00.000-08:002015-01-28T20:31:00.859-08:00New Survey on Sexual AssaultSometimes all you have to do is ask. Last week, I posted <a href="http://www.thelegalmindatwork.com/2015/01/frequency-of-sexual-assault-on-college.html" target="_blank">links to the most prominent studies</a> on the frequency of sexual assault on college and university campuses, but noted that further study would be very helpful in nailing down the best estimates.<br />
<br />
It turns out that <a href="http://www.aau.edu/news/article.aspx?id=15806" target="_blank">the American Association of Universities announced</a> that it will be trying to answer this very question be conducting surveys this spring at 28 college and universities that represent over 800,000 students. The AAU's press release describes the study this way:<br />
<blockquote class="tr_bq">
A team of experts from universities and Westat is developing the survey, based on an instrument developed by the White House Task Force to Protect Students from Sexual Assault. The survey will document the frequency and characteristics of campus sexual assault and sexual harassment, and assess campus climate in a way that allows for comparability of data across institutions and that protects the confidentiality of respondents.</blockquote>
The press release doesn't provide details on the study's methodology, but according to the press release, “the survey is expected to be among the largest ever on sexual assault." Here's hoping for a successful and informative survey.Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-14186721831894049292015-01-23T11:54:00.000-08:002015-01-23T11:54:54.191-08:00Frequency of Sexual Assault on College CampusesWithout question, a single sexual assault on a college or university campus (or anywhere else for that matter) is one too many. Nevertheless, the frequency of sexual assaults has taken a central place in political and legal debates over the policies and regulations that should govern colleges and universities.<br />
<br />
While numerous studies exist, three in particular are at the epicenter of these debates:<br />
<ul>
<li>the 2007 <a href="https://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf" target="_blank">Campus Sexual Assault Study</a> (also known as the "CSA");</li>
<li>the 2010 <a href="http://www.cdc.gov/violenceprevention/pdf/nisvs_executive_summary-a.pdf" target="_blank">National Intimate Partner and Sexual Violence Survey</a> (the "NISVS"); and</li>
<li>the 2014 analysis of the Bureau of Justice Statistics' National Crime Victimization Survey (the "NCVS") published under the title <a href="http://www.bjs.gov/content/pub/pdf/rsavcaf9513.pdf" target="_blank">Rape and Sexual Assault Victimization Among College-Age Females, 1995–2013</a>.</li>
</ul>
<br />
The studies reached radically different conclusions about the frequency of sexual assaults among college students. For example, the CSA study concluded that one in five women (20 percent) experience a sexual assault in college. The NCVS study put the number at six out of a thousand (0.6 percent). That's quite a difference.<br />
<br />
<a href="https://home.campusclarity.com/tag/campus-sexual-assault-study/" target="_blank">Differences in methodology, framing of questions, and definitions</a> might explain some of the discrepancy between the various numbers. The NCVS report has an illuminating discussion of some of these differences for those that are interested. <br />
<br />
Like many social science questions, further study will hopefully cast more light on this important question.<br />
<br />Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-53471483979860368012015-01-20T19:57:00.000-08:002015-01-20T19:57:39.362-08:00White House Reports on Sexual Assault on College CampusesPresident Obama’s White House is leading the charge on demanding that colleges and universities do more to prevent and respond to sexual assault on their campuses.<br />
<br />
In 2014, the White House issued two reports, which, along with the <a href="http://www.thelegalmindatwork.com/2015/01/sexual-harassment-and-assault-on.html">OCR Guidance Documents</a>, should be considered required reading for understanding the current legal climate for colleges and universities and sexual assaults on college campuses:<br />
<ul>
<li>January 2014 — <a href="http://www.whitehouse.gov/sites/default/files/docs/sexual_assault_report_1-21-14.pdf" target="_blank">Rape and Sexual Assault: A Renewed Call to Action</a></li>
</ul>
<ul>
<li>April 2014 — <a href="http://www.whitehouse.gov/sites/default/files/docs/report_0.pdf" target="_blank">Not Alone: The First Report of the White House Task Force to Protect Students from Sexual Assault</a></li>
</ul>
The April Report was the product of a Presidential Memorandum establishing a White House Task Force to Protect Students from Sexual Assault, signed January 22, 2014. <a href="http://www.whitehouse.gov/the-press-office/2014/01/22/memorandum-establishing-white-house-task-force-protect-students-sexual-a" target="_blank">The Presidential Memorandum</a> is also worth reading.<br />
<br />
<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: left; margin-right: 1em; text-align: left;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgGCPFBEXLuwWtGw9MPrf3KFPuEujhpSE_hyjz_y-29NgXq9S9p_FGcSm6oJirEihP7BUvRcR6MoQdMrEcbs8FaAPc52tpjz4n-SH8O9zZ1wgVOrwd4pJN4O5eNr4RlIeJ_08EofPO3D-Kd/s1600/President+Obama+Signs+Memorandum+Establishing+Task+Force,+January+22,+2014.jpg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img alt="President Barack Obama signs the Campus Sexual Assault Presidential Memorandum" border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgGCPFBEXLuwWtGw9MPrf3KFPuEujhpSE_hyjz_y-29NgXq9S9p_FGcSm6oJirEihP7BUvRcR6MoQdMrEcbs8FaAPc52tpjz4n-SH8O9zZ1wgVOrwd4pJN4O5eNr4RlIeJ_08EofPO3D-Kd/s1600/President+Obama+Signs+Memorandum+Establishing+Task+Force,+January+22,+2014.jpg" height="213" title="President Barack Obama signs the Campus Sexual Assault Presidential Memorandum" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;"><div class="separator" style="clear: both;">
<span style="font-size: xx-small;">President Barack Obama signs the Campus Sexual Assault Presidential Memorandum during a White House Council on Women and Girls meeting in the East Room of the White House, Jan. 22, 2014. (Official White House Photo by Lawrence Jackson)</span></div>
<div>
<span style="font-size: xx-small;"><br /></span></div>
</td></tr>
</tbody></table>
Among other interesting bits, the Presidential Memorandum summarizes the legal responsibilities of colleges and universities:<br />
<blockquote class="tr_bq">
Among other requirements, institutions of higher education participating in Federal student financial assistance programs (institutions), including colleges, universities, community colleges, graduate and professional schools, for-profit schools, trade schools, and career and technical schools, must provide students with information on programs aimed at preventing rape and sexual assault, and on procedures for students to reporting rape and sexual assault. Institutions must also adopt and publish grievance procedures that provide for the prompt and equitable resolution of rape and sexual assault complaints, and investigate reports of rape and sexual assault and take swift action to prevent their recurrence. Survivors of rape and sexual assault must also be provided with information on how to access the support and services they need. Reports show, however, that institutions' compliance with these Federal laws is uneven and, in too many cases, inadequate.</blockquote>
It's good to know what the White House is thinking.Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-90551133528487018232015-01-20T07:25:00.000-08:002015-01-28T20:32:21.198-08:00How Much Does It Cost to Litigate a (Heavily) Contested Copyright Case?How much does it cost to litigate a heavily contested copyright lawsuit? In one recent case in New York involving the Beastie Boys and the Monster Energy Company, the answer was nearly $2.5 million.<br />
<br />
The Beastie Boys won their infringement case, and their attorneys broke down their expenses in their <a href="http://www.abajournal.com/files/BeastieBoysFiling2015.pdf" target="_blank">motion for fees</a>:<br />
<ul>
<li>Pleadings and discovery: $895,926</li>
<li>Trial: $1,288,811 million</li>
<li>Post-trial motions: $200,438</li>
<li>Costs (e.g., court reporters, deposition and trial transcripts, postage and messengers): $99,261</li>
</ul>
<div>
By the way, how much did the Beastie Boys win in their infringement claim? Just $1.7 million. This is another example of how the costs of litigation can easily surpass the value of what's at stake. </div>
<div>
<br /></div>
<div>
Interestingly, it appears that the trial court could see this result coming. The motion for fees quotes the judge as telling the parties a year before the trial to think of the bloodbath of World War I:</div>
<blockquote class="tr_bq">
[A] very large percentage of the area in controversy is about to be chewed up by the lawyers here, particularly if this case finishes trial and goes to appeal. And there will come a time when both parties look back at this and say to themselves, why didn't I read <i>The Guns of August</i>, nobody wanted war but it came anyway and everybody suffered. That's what's about to happen. You're about the fight the Battle of Verdun and slaughter each other somewhere over the middle of France.</blockquote>
Very wise advice for litigants and potential litigants everywhere.Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-51470952122773956862015-01-19T20:32:00.000-08:002015-01-28T20:32:55.492-08:00Sexual Harassment and Assault on College Campuses: Essential Reading from the US Office for Civil Rights Sexual assault on US college campuses has been a big topic in the news recently. The US Department of Education Office for Civil Rights has published extensive guidance on its interpretation of the legal rules that govern how US college and universities respond to allegations of sexual harassment in general and sexual assault in particular.<br />
<br />
Any conversation about how colleges and universities should respond to claims of sexual assault must consider OCR’s interpretations of the law governing institutions of higher education. Below are links to the OCR guidance that are essential reading to understand OCR’s perspective:<br />
<ul>
<li>Jan 19, 2001 — <a href="http://www2.ed.gov/offices/OCR/archives/pdf/shguide.pdf" target="_blank">Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties</a></li>
<br />
<li>July 28, 2003 — <a href="http://www2.ed.gov/about/offices/list/ocr/firstamend.html" target="_blank">Dear Colleague Letter on First Amendment </a></li>
<br />
<li>September 2008 — <a href="https://www2.ed.gov/about/offices/list/ocr/docs/ocrshpam.pdf" target="_blank">Sexual Harassment: It's Not Academic</a></li>
<br />
<li>Oct. 26, 2010 —<a href="http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html" target="_blank"> Dear Colleague Letter on Harassment and Bullying</a></li>
<br />
<li>April 4, 2011 — <a href="http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html" target="_blank">Dear Colleague Letter on Sexual Harassment and Violence</a></li>
<br />
<li>Apr. 29, 2014 — <a href="http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf" target="_blank">Questions and Answers on Title IX and Sexual Violence</a></li>
</ul>
<div>
These documents are a good introduction to OCR’s perspective. Another essential document to read in this area is the US Supreme Court's decision in <a href="http://scholar.google.com/scholar_case?q=davis+v+monroe+county&hl=en&as_sdt=2006&case=1286413030321424251&scilh=0" target="_blank">Davis v. Monroe County Board of Education</a>. How to reconcile <i>Davis </i>and OCR’s statements is worthy of careful consideration, but first things first.</div>
<div>
<br /></div>
<div>
Happy reading.</div>
Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0tag:blogger.com,1999:blog-127237469856924754.post-9565993819995179342014-07-26T17:33:00.001-07:002014-07-27T08:02:04.399-07:00Would You Confess to a Crime You Did Not Commit?The purpose of the legal system is to find out the truth. In the American system of justice, the search for truth is entrusted to competing advocates who argue the opposite side of a question. The assumption is that these dueling advocates are more or less equal in skill, abilities, and resources, so the outcome of their confrontation will be dictated by who has the better case — in other words, the better claim to the truth. Sometimes, however, the scales of justice are not so evenly balanced.<br />
<br />
In a justice system that relies so heavily on the skills and abilities of lawyers to argue for their clients and persuade skeptical third-parties of the truth, the story of Michael Philips shouldn’t come as too much of a surprise. <a href="http://www.washingtonpost.com/news/post-nation/wp/2014/07/25/texas-man-exonerated-through-dna-testing-he-didnt-know-was-going-to-happen/">The Washington Post reports</a>:<br />
<blockquote>
In 1990, Michael Phillips was convicted of raping a 16-year-old girl at a motel in Dallas, Tex., where they both lived. Phillips pleaded guilty because, he said later, his attorney told him that as a black man who had been accused of raping a white teenager, he should try to avoid a jury trial. He went to prison for a dozen years and, after his release, spent another six months in jail after failing to register as a sex offender.</blockquote>
According to the Post’s report, a quarter century after the attack, DNA evidence conclusively has demonstrated that Phillips was not the rapist, too late to save Phillips from serving time for a crime he did not commit, but another sobering reminder that the legal system is not free from mistakes.<br />
<br />
What evidence did Philips face that convinced him it was better to confess to a crime he did not commit than to try to prove his innocence in court? The eyewitness identification of the victim. According to the Post:<br />
<blockquote>
The woman who was raped partially pulled up the ski mask on her attacker, and she said she recognized Phillips. She also picked a photo of him out of a lineup. </blockquote>
Eyewitness identifications are <a href="http://en.wikipedia.org/wiki/Eyewitness_testimony">notoriously unreliable</a>. They are also devastatingly persuasive. Combine that with the charged background of race relations and extremely long sentences for people accused of crimes who exercise their right to test prosecutor’s cases in court, and Michael Phillips’ decision to accept a dozen years in prison over much harsher alternatives if the dice did not fall his way makes chilling sense.<br />
<br />
From the safety and security of our homes, it is easy to say that we would never confess to a crime we did not commit, but Michael Phillips’ story should give us pause. It is nice to think that truth prevails, but that is not always how things turn out, and sometimes an innocent man serves someone else’s time while the true perpetrator goes free.Dan Parkhttp://www.blogger.com/profile/17960385013148894181noreply@blogger.com0