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Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. L. Rev. 1995 (2017).
Categories:
Criminal Law & Procedure
,
Constitutional Law
,
Government & Politics
Sub-Categories:
Fourth Amendment
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Criminal Justice & Law Enforcement
,
Judges & Jurisprudence
Type: Article
Abstract
This Article examines the unrecognized origins and scope of the judicial presumption of police expertise: the notion that trained, experienced officers develop insight into crime sufficiently rarefied and reliable to justify deference from courts. That presumption has been widely criticized in Fourth Amendment analysis. Yet the Fourth Amendment is in fact part of a much broader constellation of deference, one that begins outside criminal procedure and continues past it. Drawing on judicial opinions, appellate records, trial transcripts, police periodicals, and other archival materials, this Article argues that courts in the mid-twentieth century invoked police expertise to expand police authority in multiple areas of the law. They certified policemen as expert witnesses on criminal habits; they deferred to police insights in evaluating arrests and authorizing investigatory stops; and they even credited police knowledge in upholding criminal laws challenged for vagueness, offering the officer’s trained judgment as a check against the risk of arbitrary enforcement. Complicating traditional accounts of judicial deference as a largely instrumental phenomenon, this Article argues that courts in the midcentury in fact came to reappraise police work as producing rare and reliable “expert” knowledge. And it identifies at least one explanation for that shift in the folds and interconnections between the courts’ many diverse encounters with the police in these years. From trials to suppression hearings to professional activities outside the courtroom, judges experienced multiple sites of unique exposure to the rhetoric and evidence of the police’s expert claims. These encounters primed judges to embrace police expertise not only through their deliberative content, but also their many structural biases toward police knowledge. This development poses important and troubling consequences for the criminal justice system, deepening critiques of police judgment in criminal procedure and raising novel concerns about the limits of judicial reasoning about police practices.
Anna Lvovsky, Cruising in Plain View: Clandestine Surveillance and the Unique Insights of Antihomosexual Policing, J. Urb. Hist. (forthcoming 2017).
Categories:
Criminal Law & Procedure
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Discrimination & Civil Rights
Sub-Categories:
Criminal Justice & Law Enforcement
,
LGBTQ Rights Law
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Discrimination
Type: Article
Abstract
The mid-twentieth century witnessed a boom in policing against homosexual cruising, the practitioners of which relied on a set of robust defense tactics to avoid detection by strangers. Frustrated by the difficulties of catching suspected cruisers, police departments developed a variety of surreptitious, deeply intrusive surveillance tactics for monitoring public bathrooms. Yet while necessitated by the insularity of modern cruising culture, these surveillance tactics were legitimized in court partly through judges’ very skepticism of that culture. Weighing the utility of clandestine surveillance against its intrusion on innocent citizens, judges frequently justified surveillance by characterizing cruisers as sexual predators eager to expose themselves to innocent victims. From inception to conviction, the utility of clandestine surveillance thus depended partly on an epistemic lag between the arms of the criminal justice system: a disconnect between the police’s sensitivity to contemporary homosexual practices and judges’ continuing insistence on an older paradigm of perverse predation.
Anna Lvovsky, The Province of the Jurist: Judicial Resistance to Expert Testimony on Eyewitnesses as Institutional Rivalry 126 Harv. L. Rev. 2381 (2013).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Criminal Evidence
,
Jury Trials
,
Judges & Jurisprudence
Type: Article
Abstract
This Note examines the institutional biases underlying courts’ persisting, and deeply criticized, resistance to expert testimony on the reliability of eyewitnesses. While such resistance is generally explained as preserving the jury’s authority over fact-finding, protecting the democratic jury trial against “professionalization” by an elite class of experts, I argued that it more frequently reflects judges’ sense that eyewitness experts fail to improve on traditional safeguards provided by judge and attorneys, such as jury instructions and cross-examination — effectively preserving the trial as the professionalized realm of expert jurists. In context, advocates urging the admission of expert testimony should focus less on establishing the gap between expert and lay knowledge regarding eyewitnesses, and more on establishing the gap between expert testimony and judicial alternatives in correcting juror misconceptions.