Category Archives: Law: Civil Procedure

Two Pieces of Very Good Legal News From Florida

He was once known as “Chain Gang Charlie” Crist for his tough law and order stands, but in the face of strong troglodyte opposition from Florida Attorney General Bill McCollum, Florida Governor Charlie Crist has pushed through a set of reforms to Flordia's felon disenfranchisement rules. Now, instead of making it virtually impossible for felons to get their right to vote (and to hold state licensees for a wide variety of trades), it will merely be slow (15 years!) for non-violent offenders, and slow and difficult for violent offenders. This is a major issue as the state has almost a million persons who have been found guilty of felonies, and about half of them are black (although blacks are about 14% of our total population). That a Republican governor would do this, because it's the right thing, is amazing. Florida still remains well behind states with more civilized penal policies, but this is a huge step in the right direction. Details at the Miami Herald, Felon rights on faster track.

Also in today's news, a welcome and very powerful ruling by our Supreme Court. In Re: Amendments To Florida Rule Of Judicial Administration 2.420—Sealing Of Court Records And Dockets. (April 5, 2007) says in the strongest terms that state courts must not “superseal” civil cases in trial courts — ever. “Supersealing” was a procedure that removed any trace of a matter from the public docket, even its docket number and title. As the court notes, it was a set of practices “that, however unintentional, were clearly offensive to the spirit of laws and rules that ultimately rest on Florida’s well-established public policy of government in the sunshine.” The Court's decision does not prevent the sealing of substantive civil case records in appropriate cases after appropriate process. Also, the issue of criminal and appellate cases is left for another day, pending study by the appropriate committees (in criminal cases there are additional issues relating to protecting informants, for example).

A great day for the State of Florida! (And if the last election were held today, I'd vote for Crist.)

[Bonus good news: Condo tenant wins fight to keep mezuzah.]

Posted in Florida, Law: Civil Procedure, Law: Criminal Law, Law: Privacy | 4 Comments

Assessing Credibility and Demeanor of Witnesses who Testify Through Interpreters

Judge Posner's decision in Apouviepseakoda v. Gonzales, 05-3752 (7th Cir., Feb. 2, 2007), which I mentioned yesterday has an interesting twist.

It's one of the great fetishes of US law that triers of fact, be they juries, judges, or administrative officials (including ALJs and Immigration Judges), deserve deference for their credibility determinations as they saw the live witness and the reviewer of the cold record did not. We don't question jury determinations — they're a black box, and juries are not called upon to give reasons for their decisions as to who to believe. The same is not true, however, of either judges or administrators. We expect them to issue reasoned opinions, and call foul when they fail to and when the reasons they give fail to hold water.

Indeed, one of the puzzles of administrative law is the so-called Universal Camera problem — suppose that an initial trier of fact reached one decision on the evidence but that the higher-ups in the agency appeals process reached an opposite conclusion. When the matter goes to the court of appeals, what weight should the court put on the trier's views? The issue implicates two competing values in administrative law: on the one hand the great deference to the front-line assessment of credibility, on the other hand the command in the Administrative Procedure Act that the agency, in deciding a matter, has full power to determine it (i.e. that its hands are not tied by lower-level officials). It's very hard for both of these to be true at once: if we give weight to demeanor then the front-line official has de facto power to limit the decisions of his/her bosses. If on the other hand we don't give any extra credence to the factual findings of the person who actually received the evidence, we've undermined an ancient principle of Anglo-American jurisprudence. We square that circle by saying that the trier's decision is part of the record that binds the agency. So it's free to make any decision, but its decision must be based on the record. The trier, we say only somewhat convincingly, hasn't bound the agency, he's just made part of the record.

Comes now Judge Posner in Apouviepseakoda to ask a really good question about credibility determinations by administrative agencies (and implicitly also by judges, although not juries):

The fact that she was testifying through an interpreter has a significance that my colleagues do not appreciate when they say that “The IJ spent 6 hours in a hearingroom, face to face, with Ms. Apouviepseakoda. We have never met her.” I take this to be an allusion to the common though not necessarily correct belief that being present when a witness testifies greatly assists a judge or juror in determining whether the witness is telling the truth. Even if so in general, it cannot be so when the witness is a foreigner testifying through an interpreter, especially if the judge cannot even hear the foreigner, but only the interpreter. Reading the facial expressions or body language of a foreigner for signs of lying is not a skill that either we or Judge Brahos possess.

We understand the dilemma facing immigration judges in asylum cases. The applicant for asylum normally bases his claim almost entirely on his own testimony, and it is extremely difficult for the judge to determine whether the testimony is accurate. Often it is given through a translator, and even if the applicant testifies in English, as a foreigner his demeanor will be difficult for the immigration judge to “read” as an aid to determining the applicant's credibility. Unfortunately, the Department of Homeland Security and the Justice Department, which share responsibility for processing asylum claims, have, so far as appears, failed to provide the immigration judges and the members of the Board of Immigration Appeals with any systematic guidance on the resolution of credibility issues in these cases. The departments have not conducted studies of patterns of true and false representations made by such applicants, of sources of corroboration and refutation, or of the actual consequences to asylum applicants who are denied asylum and removed to the country that they claim will persecute them. Without such systematic evidence (which the State Department's country reports on human rights violations, though useful, do not provide), immigration judges are likely to continue grasping at straws—minor contradictions that prove nothing, absence of documents that may in fact be unavailable in the applicant's country or to an asylum applicant, and patterns of behavior that would indeed be anomalous in the conditions prevailing in the United States but may not be in Third World countries—in an effort to avoid giving all asylum applicants a free pass. The departments seem committed to case by case adjudication in circumstances in which a lack of background knowledge denies the adjudicators the cultural competence required to make reliable determinations of credibility.

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Posted in Administrative Law, Law: Civil Procedure | 7 Comments