BY GINA RHODES — Last weekend, the University of Miami Law Review hosted its annual symposium, “Leading From Below,” with this year’s focus on district court judges influencing courts above them through their decisions. The two-day symposium began with a Keynote Address by The Honorable Jack B. Weinstein, a renowned district court judge in the Eastern District of New York. Judge Weinstein’s Keynote Address analyzed how judges deal with the real world, specifically addressing the question, “How can judges stay abreast of the world outside of the bench?” His speech touched upon ten rules that judges should use as a guide in order to not only be more effective on the bench, but also to become an influence upon judges seated in the divisions above.
The first of these rules was: “Be humble. Listen. Try to learn what’s going on. If you need to: Get out of the Courthouse.” Judge Weinstein does just that, particularly during situations when a visit to the location or problem in question is necessary to fully understand the breadth of the issue. For example, in one case, Judge Weinstein visited the living conditions that developmentally disabled children were living in. He did this to gain firsthand knowledge of the lawsuit at issue. In addition, Judge Weinstein’s fifth rule reminded judges that sometimes they need “to let the empathy flow.” By this, Judge Weinstein wanted to express the importance of realizing all parties in a suit are human, have real lives, and may suffer greatly from a decision the judge makes. He did not mean to relax enforcing the law, but by showing empathy, he stressed that it helped influence his decisions.
The last rule—referencing mainly class actions, but relevant in all circumstances—discussed how each individual should be allowed access to the court system. The panel on the second day of the symposium, which focused on how judges can help police reform, considered Judge Weinstein’s rules in making its comments. Harvard University Climenko Fellow Seth Stoughton opened the panel by discussing the need for police reform and how judges can use the broad discretion granted by the judiciary to make this happen. Mr. Stoughton discussed the decisions officers are entitled to make before any officer even enters the court: arresting decisions, choosing where to patrol, deciding how to patrol, and interviewing witnesses.
The crux of Mr. Stoughton’s analysis was that officers are usually not concerned with losing or winning a case, or more specifically a motion to suppress. However, officers are concerned with “doing the right thing.” This means that when brought into court to testify in a Brady hearing, probable cause hearing, or even a trial, the officers, in trying to do the right thing, often blur the line between lay testimony and expert testimony. Officers many times end their statements by saying “based on my training,” in order to explain the reason for a particular action taken. However, these statements often sway the jury, who in turn views the officer as an expert witness.
Mr. Stoughton proposed a solution to this dichotomy by suggesting that district court judges consider the assertion regarding the officer’s training and use their discretion to determine if the officer can testify as an expert, or just as a lay person giving his opinion. In this solution, Mr. Stoughton raised the Federal Rules of Evidence, specifically Rules 701 and 702, which differentiate between how an expert and a non-expert witness can testify. The Honorable Kathleen Williams from the Southern District of Florida touched upon this in her portion of the panel. She left open a question as to what judges should require of the prosecution in order to allow an officer to testify as an expert. Judge Williams mentioned the possibility of the prosecution disclosing to the defense the officer’s resume, personnel file, and training programs so that the judge and defense counsel could be aware of the training and credibility the officer has before crediting the officer as an expert witness. Mr. Stoughton stated optimistically that because police officers want to do the right thing, upon hearing that their training may not be enough to constitute as an expert, police reform in both training and overall policing regiment might eventually occur.
The Honorable John Gleeson of the Eastern District of New York concurred with Mr. Stoughton and emphasized the fact that police officers are not held accountable when they testify falsely, lose a Section 1983 claim, or violate someone’s rights. Instead of personal liability, the result of such police misconduct is suppression of the evidence at trial. From a statistical standpoint, Judge Gleeson maintained that until there is accountability upon police officers, there will be no reform.
It appears that this panel directly supports Judge Weinstein’s suggested roles for judges. By getting out in the community and really trying to understand the intricacies of police work, while at the same time keeping some empathy for the parties, judges can help the police reform by using their discretion to allow an officer to either testify as an expert or not, as well as make it clear to the jury how the officer is testifying. Judges can rid themselves of the gray area where an officer mentions his experience, but has no actual studies or proof of training to support his findings. With prosecutors, defense counsels, police officers, and judges all working together to reach a common goal of seeking justice, the future of police work and the adversarial system could change for the better, with a true lead from below.
