Category Archives: Scholarship

Thursday’s Quick Clicks…

Swirls and Whorls: Litigating Post-Conviction Claims of Fingerprint Misidentification after the NAS Report

U of Washington Professor, and director the Innocence Project Northwest, Jackie McMurtry has posted the above-titled article on SSRN.  Download here.  The abstract states:

The National Research Council of the National Academies’ 2009 report, Strengthening Forensic Science in the United States: A Path Forward (“NAS Report”), noted that “[t]he number of exonerations resulting from the analysis of DNA has grown across the country in recent years, uncovering a disturbing number of wrongful convictions — some for capital crimes — and exposing serious limitations in some of the forensic science approaches commonly used in the United States.” The evidence can include the comparisons of bite marks, hairs, voiceprints, earprints, and fingerprints.

This article provides a brief outline of latent fingerprint evidence as it is currently presented in courts. Latent fingerprint individualization was rapidly accepted as forensic identification evidence, largely without question — and before being validated through scientific research. Legal challenges only began in the 1990s. Although the NAS Report’s discussion of fingerprint identification raises many questions, petitioners who claim to have been wrongly convicted because of it will still face substantial hurdles.

New Scholarship Spotlight: The Banality of Wrongful Executions…

Virginia professor Brandon Garrett has posted the above-titled article, reviewing several important books, on SSRN.  Download here.  The abstract states:

What is so haunting about the known wrongful convictions is that they are the tip of the iceberg. Untold numbers of mundane errors may escape notice while sending the innocent to prison and even to the death chamber. That is why I recommended to readers a trilogy of fascinating new books that look into the larger but murkier problem of error. In this article for Michigan Law Review’s annual book issue, I review three books: Los Tocayos Carlos, by James Liebman, Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White and Daniel Zharkovsky; Anatomy of Injustice: A Murder Case Gone Wrong, by Raymond Bonner; and In Doubt: The Psychology of the Criminal Justice Process, by Dan Simon. Each of these books brings important new perspective and understanding to the reasons why our criminal justice system can make terrible mistakes.

“Flawed Convictions – Shaken Baby Syndrome and the Inertia of Injustice”

flawed conv

Sue Luttner has posted an excellent piece on her blog OnSBS about the new book by Prof. Deborah Tuerkheimer to be released in April - Flawed Convictions – Shaken Baby Syndrome and the Inertia of Injustice.

Please see Sue’s post here.

This book will be a must read for any involved in the SBS debate.

New Scholarship Spotlight: The Need for Defense Access to the Law Enforcement DNA Database

Jason Kreag has posted Letting Innocence Suffer:  The Need for Defense Access to the Law Enforcement DNA Database on SSRN.  Download here.   The abstract states:

Law enforcement has gradually amassed a sizable DNA database that holds considerable promise for solving cold cases and identifying suspects. The Supreme Court has blessed this effort, allowing investigators to include profiles of arrestees as well as convicted persons in the database. At present, though, law enforcement has a near monopoly on use of the DNA database, leaving defendants at the whim of the law enforcement officials who control access to this tool. Legal scholars have alternatively praised and decried the database, but none has examined its prospects for proving defendants’ innocence post-conviction. This Article fills that void by identifying a limited due process right to defense-initiated DNA database searches. The Article argues that the database is a powerful truth-promoting tool that should be available to law enforcement and defendants alike. Because legislators have failed to promote the search for actual offenders through statutory rights of access, this Article presents the constitutional authority for defense-initiated searches to vindicate the rights of innocent defendants.

New Scholarship Spotlight: Cognitive bias in forensic anthropology

Itiel Dror and others have posted the newest piece on the issue of confirmation bias in forensics.  If you haven’t been introduced to Dror’s body of work yet, check it out here.  The abstract of the newest paper, which can be downloaded in full here, states:

An experimental study was designed to examine cognitive biases within forensic anthropological non-metric methods in assessing sex, ancestry and age at death. To investigate examiner interpretation, forty-one non- novice participants were semi randomly divided into three groups. Prior to conducting the assessment of the skeletal remains, two of the groups were given different extraneous contextual information regarding the sex, ancestry and age at death of the individual. The third group acted as a control group with no extraneous contex- tual information. The experiment was designed to investigate if the interpretation and conclusions of the skeletal remains would differ amongst participants within the three groups, and to assess whether the examiners would confirm or disagree with the given extraneous context when establishing a biological profile. The results revealed a significant biasing effect within the three groups, demonstrating a strong confirmation bias in the assessment of sex, ancestry and age at death. In assessment of sex, 31% of the participants in the control group concluded that the skeleton remains were male. In contrast, in the group that received contextual information that the remains were male, 72% concluded that the remains were male, and in the participant group where the context was that the remains were of a female, 0% of the participants concluded that the remains were male. Comparable results showing bias were found in assessing ancestry and age at death. These data demonstrate that cognitive bias can impact forensic anthropological non-metric methods on skeletal remains and affects the interpretation and con- clusions of the forensic scientists. This empirical study is a step in establishing an evidence base approach for dealing with cognitive issues in forensic anthropological assessments, so as to enhance this valuable forensic sci- ence discipline.

Predicting Wrongful Convictions Statistically…

A group of scholars, including Jon Gould, Julia Carrano, Richard Leo and Katie Hall-Jares have posted an interesting article, Predicting Erroneous Convictions, on SSRN.  The article is forthcoming at the Iowa Law Review.  Download here.  The abstract states:

The last thirty years have seen an enormous increase not only in the exonerations of innocent defendants but also academic scholarship on erroneous convictions. This literature has identified a number of common factors that appear frequently in erroneous conviction cases, including forensic error, prosecutorial misconduct, false confessions, and eyewitness misidentification. However, without a comparison or control group of cases, researchers risk labeling these factors as “causes” of erroneous convictions when they may be merely correlates. This article reports results from the first large scale empirical research project to compare wrongful convictions with other innocence cases in which the defendant escaped conviction (so-called “near misses”). Employing statistical methods and an expert panel, the research helps us to understand how the criminal justice system identifies innocent defendants in order to prevent erroneous convictions. In another first, the research secured the cooperation of practitioners from multiple sides of the criminal justice system, including the national Innocence Project, the Police Foundation, the Association of Prosecuting Attorneys, and the National District Attorneys Association. The results highlight ten factors that distinguish wrongful convictions from near misses, but the larger story is one of system failure in which the protections of the criminal justice system operate in a counterintuitive manner. The article closes with a series of policy reforms to address these failings.

New Scholarship Spotlight: Police Misconduct as a Cause of Wrongful Conviction…

Russell Covey has posted the above-titled article on SSRN.  Download copy here.

The abstract states:

This study gathers data from two mass exonerations resulting from major police scandals, one involving the Rampart division of the L.A.P.D., and the other occurring in Tulia, Texas. To date, these cases have received little systematic attention by wrongful convictions scholars. Study of these cases, however, reveals important differences among subgroups of wrongful convictions. Whereas eyewitness misidentification, faulty forensic evidence, jailhouse informants, and false confessions have been identified as the main contributing factors leading to many wrongful convictions, the Rampart and Tulia exonerees were wrongfully convicted almost exclusively as a result of police perjury. In addition, unlike other exonerated persons, actually innocent individuals charged as a result of police wrongdoing in Rampart or Tulia only rarely contested their guilt at trial. As is the case in the justice system generally, the great majority pleaded guilty. Accordingly, these cases stand in sharp contrast to the conventional wrongful conviction story. Study of these groups of wrongful convictions sheds new light on the mechanisms that lead to the conviction of actually innocent individuals.

2014 Innocence Network Conference Call For Papers

Dear Friends and Colleagues,

The 2014 Innocence Network Conference is being held in Portland, Oregon on April 11-12 (http://www.innocencenetwork.org/conference).

 I am chairing the Innocence Scholarship panel session and seeking paper submissions for consideration. If either you, or someone you know would like to present their new scholarly research pertaining to wrongful conviction at the 2014 Innocence Network Conference, please have them contact me via email. Also, please feel free to share this request for papers with others who may be outside the Network and who may not have access to this list.
We are specifically seeking high quality scholarship. Areas of research are open but should touch upon the multifaceted causes, implications, and/or remedies of wrongful conviction. International papers are welcome but must be submitted in English. Please submit a title and abstract to me by January 31, 2014.
Thanks!
Dr. Robert Schehr
Professor, Department of Criminology and Criminal Justice
Executive Director, Arizona Innocence Project

ArizonaInnocenceProject.org

Northern Arizona University

P.O. Box 15005
Flagstaff, Arizona 86001-5005
928.523.9979

Blog editors discuss wrongful convictions in China

Wrongful Convictions Blog editor Mark Godsey, left, and contributing editor Nancy Petro, second from right, are shown visting the Great Wall of China on Saturday. They are joined by Mark’s wife, defense attorney Michelle Berry Godsey, and Nancy’s husband, former Ohio attorney general Jim Petro. All four were invited to China to discuss wrongful convictions throughout the world.

China

Law Review Issue on Wrongful Convictions Around the Globe Now in Print…

Cover

At long last, the University of Cincinnati Law Review symposium issue stemming from the 2011 International Innocence Conference in Cincinnati is finally in print.  The edition contains articles discussing and summarizing the causes and extent of wrongful conviction in countries across the globe.  You can find the entire volume here.  Congrats to all involved on completing this important work.

New Scholarship Spotlight: Lessons from Inquisitorialism

image.phpVanderbilt Law Professor Christopher Slobogin has posted the above-titled article on SSRN.  Download here.  The abstract states:

The adversarial system as it is implemented in the United States is a significant cause of wrongful convictions, wrongful acquittals and “wrongful” sentences. Empirical evidence suggests that a hybrid inquisitorial regime would be better than the American-style adversarial system at reducing these erroneous results. This paper proposes the integration of three inquisitorial mechanisms into the American trial process — judicial control over the adjudication process, non-adversarial treatment of experts, and required unsworn testimony by the defendant — and defends the proposals against constitutional and practical challenges. While other scholars have suggested borrowing from overseas, these three proposals have yet to be presented as a package. Together they could measurably enhance the accuracy of the American criminal justice system.

 

New Scholarship Spotlight: Missing the Forest for the Trees: Federal Habeas Corpus and the Piecemeal Problem in Actual Innocence Cases

Professor Stephanie Roberts Hartung has posted the above-titled article on SSRN.  Download here.  This article is on an important issue that causes serious problems for innocent habeas petitioners.  The abstract states:

The DNA exoneration data stemming from the Innocence Movement exposes a harsh reality in our criminal justice system: existing post-conviction review procedures fail to accurately identify and remedy wrongful convictions of the innocent. While the layers of review available upon conviction are seemingly exhaustive, in fact, the factually innocent prisoner is confronted with little more than a façade of protection. At the federal habeas stage, several provisions of the Anti-Terrorism and Effective Death Penalty Act [AEDPA] operate to foreclose viable claims of innocence. Further, the federal courts entertain second or successive habeas petitions in a piecemeal fashion, if they do so at all. This “piecemeal approach” negatively impacts prisoners raising claims of factual innocence, in light of their typically pro se status and incarceration. In reviewing each successive habeas petition in isolation, without regard to previous claims, the courts often miss the forest for the trees, allowing innocent prisoners to remain in custody.

This Article discusses the piecemeal problem inherent in federal habeas review procedures, provides a case illustration, and advocates for a broader reading of the “evidence as a whole” language in AEDPA’s 28 U.S.C. Section 2244(b)(2). This broader interpretation, already adopted by the Fourth Circuit, would allow courts to review a petitioner’s successive habeas claims in the aggregate, and thus, more readily identify cognizable claims of factual innocence. This Article contributes to the ongoing debate as to how the competing post-conviction interests of finality and fairness should be recalibrated in light of the DNA exoneration data brought forth by the Innocence Movement.

 

New Scholarship Spotlight: The Daubert Counterrevolution

Professor David Bernstein has posted the above-titled article on SSRN.  Download here.  The Abstract states:

This Article reviews the history of the evolution of the rules for the admissibility of expert testimony since the 1980s, the revolutionary nature of what ultimately emerged, and the consistent efforts by counter-revolutionary judges to stop or roll back the changes, even when the changes were codified into Federal Rule of Evidence 702.

Part I reviews the law of expert testimony through the Supreme Court’s Daubert decision. Critics had charged for decades that the adversarial system was a failure with regard to expert testimony.

Parties to litigation, they argued, often presented expert testimony of dubious validity because it supported their positions, while lay juries were incapable of discerning which side had the better case. However, it took the rise of toxic tort litigation based on questionable causation theories and the attendant threat to multi-billion dollar industries to provoke a meaningful response from the courts, a sudden and dramatic shift toward stricter admissibility standards.

Part II describes the Daubert trilogy and the emergence of amended Rule 702. A pattern emerged of the Supreme Court attempting to strengthen the rules governing expert testimony, some lower courts resisting, and the Court responding by issuing a new opinion clarifying the courts’ new “gatekeeping” responsibilities. Eventually, an amendment to Federal Rule of Evidence 702 codified the Daubert trilogy, and did so with language that removed ambiguities and loopholes exploited by judges who had been inclined to try to evade the Court’s rulings.

Nevertheless, as Part III describes, some federal judges have continued to apply significantly more lenient standards for expert testimony than Rule 702 allows. They do so by ignoring the language of Rule 702, and instead relying on precedents from a bygone era. The First Circuit’s Milward opinion, described in detail in Part III, demonstrates many errors and fallacies common to judges who have chosen to resist the Daubert revolution.

The underlying issue theme tying the history of, and present controversy over, the admissibility of evidence in toxic tort litigation is a dispute over the underlying rationale for having special rules for the admissibility of expert testimony. Judges that favor more liberal rules for admissibility believe that the rules are meant to address only the problem “junk science” – scientific testimony that not only falls outside the scientific mainstream, but does so in the face of well-accepted contrary evidence.

More restrictive judges, by contrast, are addressing the broader problem of “adversarial bias” that results from our legal system allowing the parties to choose their own experts. In short, parties to litigation have a natural inclination to choose experts whose views match their theory of the case, even if those experts are outliers or hired guns. Rule 702 tries to limit this problem by insisting that experts show an objectively verifiable basis for their testimony, so that the trier of fact is not in the position of relying on the mere ipse dixit of an expert chosen solely because his views are consistent with the partisan position of a party to litigation.

This Article concludes by discussing some of the factors that have led some federal judges to defy Rule 702. The author contends that the Supreme Court should take an appropriate opportunity to crack down on such judicial rebellion, for two reasons. First, Rule 702 is the law of the land, and federal judges are obligated to enforce it regardless of their personal views on what expert testimony should be admissible. Second, Rule 702 represents a constructive effort to confront the problem of adversarial bias while retaining the basic contours of broader adversarial process.

 

New Scholarship Spotlight: Gideon’s Amici: Why Do Prosecutors So Rarely Defend the Rights of the Accused?

Fordham law professor Bruce Green has posted the above-titled article on SSRN.  Download article here.  The abstract states:

In Gideon v. Wainwright, twenty-three state attorneys general, led by Walter F. Mondale and Edward McCormack, joined an amicus brief on the side of the criminal accused, urging the Supreme Court to recognize indigent defendants’ Sixth Amendment right to appointed counsel in felony cases. This was a unique occurrence. Although amicus filings by public entities have increased significantly since then, including in criminal cases, government lawyers rarely submit amicus briefs in the Supreme Court supporting criminal defendants’ procedural rights, and never en masse as in Gideon. The states’ public support for Gideon’s position points up the special nature of the right to a defense lawyer — a right that is fundamental to a fair trial and to avoiding wrongfulconvictions and which most states had already recognized as a matter of state law by the time Gideon was argued. Although Gideon was special, there have been recent Supreme Court criminal cases in which progressive government lawyers might similarly have supported recognition of the procedural right in issue. This Essay identifies philosophical, practical, and political reasons that might explain government lawyers’ unwillingness to take the defense side on questions before the Court, but argues that these rationales are not entirely convincing. The Essay concludes that, consistent with their duty to seek justice, government lawyers should play a stronger role in promoting criminal procedural fairness by occasionally serving as Supreme Court amici on the defense side.

New Scholarship Spotlight: Innocent Defendants: Divergent Case Outcomes and What They Teach Us

A group of scholars, including Richard Leo, have posted the above-titled article on SSRN.  Download here.  The abstract states:

Why are some innocent defendants convicted and spend years in prison before exoneration (“erroneous convictions”), while others are released before trial or are acquitted on the basis of their factual innocence (“near misses”)? What factors could have predicted these dramatically divergent outcomes? The authors seek to answer these questions using advanced statistical and comparative social science methodologies. This chapter reports the results from a large scale empirical research project that compares case outcomes following the indictment of 460 factually innocent defendants for a violent felony. Two hundred of these cases ended in a near miss, and the remaining 260 defendants were erroneously convicted. The authors conclude that a number of variables, including the age and criminal history of the defendant, the punitiveness of the state, Brady violations, forensic error, a weak defense and weak prosecution case, a family defense witness, a non-intentional misidentification, and lying by a non-eyewitness, can predict case outcome. Moreover, these individual factors are connected and exacerbated by tunnel vision, which prevents the system from self-correcting once an error is made and leads to general system failure. The authors conclude by suggesting reforms that will allow the legal community to improve its ability to justly adjudicate cases of innocent defendants in the future.

New Scholarship Spotlight: CSI Mississippi: The Cautionary Tale of Mississippi’s Medico-Legal History

Tucker Carrington and others have posted the above-titled article on SSRN.  Download full article here.  The abstract states:

Over the last four decades, extending even through the most recent twenty years of rapid forensic science advancements in the solving and prosecution of criminal offenses, Mississippi has maintained its condonation of systemic forensic malfeasance, and, more specifically, refused to adapt and properly accommodate contemporary forensic science in its courtrooms. Among the public health consequences was a medico-legal spoils system that valued pseudo-science and expedient criminal convictions over scientific validity and defendants’ basic civil rights. As a direct and entirely natural correlation Mississippi produced a significant number – and shocking type – of wrongful convictions and perpetrated some of the most notorious forensic fraud in American legal history.

This article documents for the first time the complete tragic history of the State’s medico-legal system from the mid-1970’s, when initial efforts were made to improve the local, coroner-based system, to the present day. Its primary purpose is to provide a comprehensive narrative through which the State might honestly come to terms on a morally acceptable basis with the attendant failures of justice that occurred as a result of the path it chose. In that way this article also offers up the Mississippi medico-legal system as a cautionary tale, a study in what not to do. Although all of the cases, agencies, and people discussed in this article are from Mississippi, the lessons learned from the Mississippi medico-legal system are universal.

 

 

 

New Scholarship Spotlight: Judicial Gatekeeping of Suspect Evidence: Due Process and Evidentiary Rules in the Age of Innocence

findley_profile_resize-1Wisconsin Professor Keith Findley has posted the above-titled article on SSRN.  Download full version here.  The abstract states:

The growing number of wrongful convictions exposed over the past two-and-a-half decades, and the research that points to a few recurring types of flawed evidence in those cases, raise questions about the effectiveness of the rules of evidence and the constitutional admissibility standards that are designed to guard against unreliable evidence. Drawing on emerging empirical data, this Article concludes that the system can and should be adjusted to do a better job of guarding against undue reliance on flawed evidence. The Article first considers the role of reliability screening as a constitutional concern. The wrongful convictions data identify what might be called “suspect evidentiary categories” — a few types of evidence (eyewitness identifications, confessions, forensic science, and snitch testimony) that are both recurring features of wrongful convictions and not otherwise susceptible to correction through traditional trial mechanisms and that, therefore, can and should be subjected to heightened scrutiny for reliability under the Due Process Clause.

Recognizing, however, that the Supreme Court is moving away from using constitutional doctrine to screen for reliability, this Article considers other mechanisms for better ensuring reliable evidence and accurate trial outcomes. First, current trends in Supreme Court jurisprudence suggest a due process framework that focuses upstream of the trial process on regulating the police and prosecutorial conduct that generates some of the most suspect trial evidence. Second, the Article assesses new applications of non-constitutional evidence law that offer promise for filling the void in reliability review of such suspect types of evidence. Finally, the Article considers remedies in addition to exclusion that might aid in the enterprise of mitigating the harm from flawed evidence. Principal among these are broader use of expert witnesses and jury instructions to educate fact finders about the counter-intuitive but scientifically established qualities of these categories of suspect evidence. And because courts have proven reluctant to apply reliability-based exclusionary rules rigorously, the Article concludes by exploring partial exclusion — excluding the most objectionable parts of the evidence while permitting other parts — as a remedy that courtsmight be more likely to actually enforce.

Brain-scan lie detectors don’t work, study finds

Here’s an excellent story from Pacific Standard magazine:

June 10, 2013 • By Lauren Kirchner

It sounds just like something out of a sci-fi police procedural show—and not necessarily a good one.

In a darkened room, a scientist in a white lab coat attaches a web of suction cups, wires, and electrodes to a crime suspect’s head. The suspect doesn’t blink as he tells the detectives interrogating him, “I didn’t do it.”

The grizzled head detective bangs his fist on the table. “We know you did!” he yells.

The scientist checks his machine. “Either he’s telling the truth … or he’s actively suppressing his memories of the crime,” says the scientist.

“Dammit,” says the detective, shaking his head, “this one’s good.”

But it isn’t fiction. Some law enforcement agencies really are using brain-scan lie detectors, and it really is possible to beat them, new research shows.

The polygraph, the more familiar lie detection method, works by “simultaneously recording changes in several physiological variables such as blood pressure, pulse rate, respiration, electrodermal activity,” according to a very intriguing group called the International League of Polygraph Examiners. Despite what the League (and television) might have you believe, polygraph results are generally believed to be unreliable, and are only admitted as evidence in U.S. courts in very specific circumstances.

The brain-scan “guilt detection test” is a newer technology that supposedly measures electrical activity in the brain, which would be triggered by specific memories during an interrogation. “When presented with reminders of their crime, it was previously assumed that their brain would automatically and uncontrollably recognize these details,” explains a new study published last week by psychologists at the University of Cambridge. “Using scans of the brain’s electrical activity, this recognition would be observable, recording a ‘guilty’ response.”

Law enforcement agencies in Japan and India have started to use this tool to solve crimes, and even to try suspects in court. These types of tests have not caught on with law enforcement in the U.S., though they are commercially available here. That’s probably a good thing; the researchers of this study found that “some people can intentionally and voluntarily suppress unwanted memories.”

The experiment was pretty straightforward, and the participants were no criminal masterminds. Ordinary people were asked to stage mock crimes, and then were asked to “suppress” their “crime memories,” all while having their brains scanned for electric activity. Most people could do it, the researchers found: “a significant proportion of people managed to reduce their brain’s recognition response and appear innocent.”

Not everyone could, though. “Interestingly, not everyone was able to suppress their memories of the crime well enough to beat the system,” said Dr. Michael Anderson, of the Medical Research Council Cognition and Brain Sciences Unit in Cambridge. “Clearly, more research is needed to identify why some people were much more effective than others.”

Separate studies on guilt-detection scans, conducted by cognitive neuroscientists at Stanford University, had similar findings. Anthony Wagner at Stanford’s Memory Lab had study participants take thousands of digital photos of their daily activities for several weeks. Wagner and his colleagues then showed sequences of photos to the participants, and measured their brain activity while the participants saw both familiar and unfamiliar photos.

The researchers could identify which photos were familiar to the participants and which ones were not, with 91 percent accuracy, Wagner said. However, when the researchers told the participants to try to actively suppress their recognition of the photos that were theirs—to “try to beat the system”—the researchers had much less success.

Scientists still don’t know how this “suppression” actually works; like so many questions about the inner workings of the human brain, it remains a mystery. But the fact that so many test subjects could, somehow, do it on command, led the authors of both the Cambridge and Stanford studies to come to the same conclusions.

In short, brain-scan guilt-detection type tests are beatable, their results are unreliable, and they shouldn’t be used as evidence in court. Except on television.

New Scholarship Spotlight: The Forensic Confirmation Bias: Problems, Perspectives, and Proposed Solutions

Saul M. KassinaItiel E. Drorb, and Jeff Kukuckaa have published the above-titled article in  the Journal of Applied Research in Memory and Cognition.  Get article here.  The abstract states:

As illustrated by the mistaken, high-profile fingerprint identification of Brandon Mayfield in the Madrid Bomber case, and consistent with a recent critique by the National Academy of Sciences (2009), it is clear that the forensic sciences are subject to contextual bias and fraught with error. In this article, we describe classic psychological research on primacy, expectancy effects, and observer effects, all of which indicate that context can taint people’s perceptions, judgments, and behaviors. Then we describe recent studies indicating that confessions and other types of information can set into motion forensic confirmation biases that corrupt lay witness perceptions and memories as well as the judgments of experts in various domains of forensic science. Finally, we propose best practices that would reduce bias in the forensic laboratory as well as its influence in the courts.