A Woman’s Choice

May 19, 2015

By: Jessica Petitt

Photo Courtesy of Redbloggy.com.

Photo Courtesy of Redbloggy.com.

It is unquestionably apparent to young girls, and women alike, that one of the most influential persons of this generation is Beyoncè. She remains one of the many females who advocate for women’s equal rights with empowering songs that allow her to be defined as a true feminist. According to Beyoncè, feminism is a person who believes in the social, political and economic equality of the sexes. In today’s society, many believe that to be considered true feminist a person must be a pro-choice advocate for women and their reproductive rights. According to the Feminist Women’s Health Center, pro-choice is defined as a way to support self-determination, to make decisions free from judgment, and the responsibility to your self with the freedom to decide to take control of your own life process. Discussions concerning abortions and pro-choice advocates have surfaced since the monumental Supreme Court decision in Roe v. Wade, 93 S.Ct. 705 (1971).

In Roe v. Wade, the Supreme Court legalized abortions for the first three months of a woman’s pregnancy. According to the Supreme Court, the ability for women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. Ever since this ruling, states have attempted to restrict women’s reproductive rights even further. This has become apparent with a newly enacted law in Tennessee criminalizing women who use narcotics while pregnant. [1] Even more recently, on March 31, 2015, North Carolina also proposed a bill that would allow pregnant women’s rights to be restricted. Specifically, North Carolina moms could soon face jail time for drug addictions that occur while pregnant, just as they now do in Tennessee. For many lawmakers, the big issue is the daunting task of balancing a woman’s right to bodily integrity with society’s interest in ensuring healthy pregnancies, and whether punitive approaches will foster–or hinder– healthy outcomes for women and children.

Bill Specifics

According to North Carolina General Statutes § 14-34.11, under this bill a woman may be prosecuted for assault for the illegal use of a narcotic drug, while pregnant, if her child is born addicted to or harmed by narcotic drug and the addiction is a result of her illegal narcotic use.[2] The law allows for an affirmative defense if the woman actively enrolls in an addiction recovery program before the child is born, remains in the program after delivery, and successfully completes the program, regardless of whether the child is born addicted to or harmed by the controlled substance. If this legislation is passed, it becomes effective December 1, 2015, and applies to offenses committed on or after that date. This bill calls into question the widely debated discussion of whether drug addictions are to be defined as health issues or criminal acts.

Health Issues vs. Criminal Acts

As a result of these new drug policies, many feminist activists believe women’s civil and human rights are under attack. To many, it seems as if legislators are now combining health issues with criminal issues. There tends to be a consensus in the medical community that addiction is a public health issue, and that treating drug use in pregnancy as a crime undermines the health of both women and children. According to the National Advocates for Pregnant Women, the punishment of pregnant women is typically targeted at vulnerable, low-income, and women of color who are all among those with the least access to healthcare or legal defense.

Photo Courtesy of Babble.com.

Photo Courtesy of Babble.com.

Dangers in the Unknown Information

Lynn Shoemaker, advocacy and issues director for Women AdvaNCe, a nonpartisan institute that advocates for women, expressed concerns that the bill would have a chilling effect on women seeking prenatal care. The concern is that women who are criminalized for their drug use will be unable to provide for their families or children if they are sitting in jail. Furthermore, many critics of the bill are concerned that this recent legislation will be a gateway for other legislation that could further impact the healthcare of women, such as regulating any medications that affect the birth of a child or the development of the fetus.

According to the American College of Obstetricians and Gynecologists, screening for substance abuse is part of complete obstetric care and should be done in partnership with pregnant women. All women should be asked about their use of alcohol and drugs, including prescription opioids and other medications used for nonmedical reasons. If women now face the issue of being criminalized for their actions, there is a concern that they will likely hide the fact that they are using prescriptions and the mother, along with the fetus, will not receive the appropriate care that is needed. Leading medical and public health groups such as the American Academy of Pediatrics, the American Medical Association, and the American Public Health Association of the March of Dimes, all oppose punitive responses, such as the proposed criminalizing statutes, for prenatal drug use.

Slippery Slope

The question remains just how far this type of legislation will go. Advocates of reproductive rights are concerned about the law’s potential to interfere with a pregnant woman’s autonomy. There is much at stake for the reproductive rights community in its ongoing fight to protect the bodily integrity of a pregnant woman in the precarious situation of drug use. However, many reproductive rights activists state that the community has an equally strong interest, even an obligation, to work toward ensuring healthy pregnancy outcomes for these women. Is this what the Supreme Court intended to happen with reproductive rights after Roe v. Wade? When is the line crossed?

[1] Tenn. Code Ann. §§39-13-107, 2010.

[2] N.C.G.S. § 14-34.11 (2015).


Proximate Conviction: Why Every Young Attorney Should Listen to Bryan Stevenson

May 14, 2015

By: Jason Arter

On April 29, 2015, I had an opportunity to listen to Bryan Stevenson present a message on the injustice in America. Bryan Stevenson is the founder, and executive director of The Equal Justice Initiative. His work addresses the injustice and biases that the poor and minorities experience. Mr. Stevenson’s awards for his work are numerous. Some of the more prestigious among them are: The MacArthur Foundation “Genius” Award, The ACLU National Medal of Liberty, and the Thurgood Marshall Medal of Justice. The message of inequality among the poor, minorities, and how we as a society can change this inequality was the central theme.  The Blumenthal Spirit Square is a small theatre, but a large attendance was present on this night.

I call it a talk, but it was much more. It was conviction, determination and passion wrapped up into a charismatic delivery. It was extremely motivating, and at the end of the evening I left feeling a sense empowerment and a desire to make a change in my community. Mr. Stevenson also had a similar message at a TED talk in 2012. It was a huge honor to be able to see this similar message live, given the present circumstances in Baltimore, Maryland.

Bryan Stevenson founder and Director of the  Equal Justice Initiative. Photo courtesy of NPR.

Bryan Stevenson founder and Director of the Equal Justice Initiative. Photo courtesy of NPR.

No attentive person could have left on Wednesday night without taking something from the presentation. The presentation at its core is a message about changing the racial issues that have plagued society for 150 years. There are four basic concepts to Mr. Stevenson’s message—two of which made a lasting impression on me.

He started with the concept “proximate.” Proximate is more clearly defined as location in time, closeness, or nearness to an event. Mr. Stevenson stated that a person couldn’t really make an effective change if the proximity at which our action is made is not within a close relation to the change that is sought. Real change is not going to occur from arms length or in the periphery.

The second concept Mr. Stevenson spoke about was “conviction.” As attorneys, we rely heavily on the knowledge in our brain. We master the rules, learn to apply them correctly, and attempt to make a difference. Unfortunately, that is not enough. We must find a conviction in our hearts to find that area of the law that impassions us to make a change. As attorneys, we must marry and intertwine conviction and knowledge. When we do, we are making a change not just as attorneys, but also for society. We can overcome the crippling effects of racism, mass incarceration, and other injustices that exist within our communities.

Regardless of the view from your chair, whether prosecution or defense, we must remember the passion and conviction that has lead us to this career. We are problem solvers. We are tools for change in the positive. When, as a profession we move forward, let us remember that change is never easy. Change is always met with resistance. We must stay the course, and hold to that conviction that inspired us.

Social injustice problems can be overcome. Imagine if just one person braves the consequence and stands up for the rights of another when others are afraid, a ripple effect could occur. We would be proximate with a conviction to overcome injustice.

What is the take away? Simply this: as young attorneys we are getting ready to graduate and we are preparing to face a new profession. That said, without getting truly involved, attempting change from a distance would not be enough. As young attorneys, we must challenge ourselves to look at the underlying problems and address them. Mr. Stevenson stated that crime is a really a reaction to the underlying problems that have never been addressed. Without a closer relationship with people or our clients, the prospect of a positive change is unlikely.

Imagine if more than one person felt this way… wouldn’t our profession, and our society as a whole, be great?

Something’s Been Cooking at the Clinic: The Beginning of Charlotte’s Specialty Court for the Homeless and Veterans

May 13, 2015

By: M. Claire Donnelly

FINALLY, it is time for the Clinic to share a little project we have been working on all semester! As part of Charlotte’s 10-Year Implementation Plan to End and Prevent Homelessness, a team of community leaders approached the Clinic in September 2014. Members of the team included representatives from Helping Homeless to Housing, Urban Ministry Center, Mecklenburg County Community Support Services, the Public Defender’s Office, among others. These leaders, who knew the Clinic from our successful efforts with the Ban the Box movement, were interested in the Clinic getting on board with an initiative to start a homeless court here in Charlotte that would serve all of Mecklenburg County.

A homeless court is a specialty court designed specifically for individuals who are homeless and are charged with a status offense based on their homelessness. These charges include public urination, solicitation, trespass, etc. For many of these individuals, getting to the courthouse and keeping up with court dates is nearly impossible. Even if these individuals do make it to their court date, research shows that the criminal justice system is not meeting their needs and the cycle of homelessness continues.

The Clinic was immediately interested in the project and decided that this something we should take on. During the Fall 2014 semester, we completed research that we presented to the team of leaders at the end of November.[1] In our research, we looked at 9 homeless court models across the country, from Orange County, NC, to Birmingham, AL, to San Diego, CA, and more. Each court was unique in its own way, and we quickly found that like the courts we researched, our court in Charlotte-Mecklenburg should be tailored to our court system’s and our client’s needs.

Clinic students presenting research in November 2014.

Clinic students presenting research in November 2014.

San Diego began the first Homeless Court program in 1989, and has since provided the model program for other courts that have begun across the nation. The American Bar Association (ABA) used San Diego’s model in their adopted proposal for homeless courts. According to the ABA, “[t]o counteract the effect of criminal cases pushing homeless defendants further outside society, this court combines a progressive plea bargain system, an alternative sentencing structure, and proof of community-based shelter program activities to address a range of misdemeanor offenses. Homeless courts expand access to justice, reduce court costs, and help homeless people reintegrate into society and lead productive lives.”

Most homeless court models represent a marriage between service providers, community volunteers, defense attorneys, prosecutors, and judges. Typically, this team of people works together to figure out the needs of the homeless individual, whether the need is employment or housing or education or addiction services, etc. Then, the team creates a “sentence” related to that need, and if they follow through with their sentence, they get a dismissal for the charge.

During the Spring 2015 semester, the Clinic met with the team again and discussed next steps. It was decided that the court initiative would be tentatively named “Specialty Court for the Homeless and Veterans.” A proposal was written to submit to the Mecklenburg Board of County Commissioners (BOCC), who we hope will eventually approve the court in their budget. We attended two BOCC Public Policy workshops this semester, and there were optimistic comments regarding the start of a court. [2] The Clinic plans to continue assisting in any way we can to get the City on board with the court as soon as possible!

We also got a chance to travel to Orange County’s Outreach Court in the spring semester, which took place at the courthouse in Chapel Hill. Our team was WOW-ed by this visit and it really got us excited for the potential of a court of this type in Charlotte-Mecklenburg. It was absolutely incredible to see that just down the road, a court of this type was not only so successful, but so compassionate for their clients.

The Clinic has tremendous hope for the start of this court here in Charlotte-Mecklenburg and plans to stay actively involved in keeping it going. Keep following the blog as we provide updates on our progress!

For a great article and updated information on Charlotte-Mecklenburg’s efforts to end homelessness, see this article in the Observer from May 4, 2015.

[1] For access to our research document, please email mclairedonnelly@gmail.com.

[2] The meeting where Commissioners discussed the proposal occurred on April 28, 2015, and can be viewed at: http://mecklenburg.granicus.com/MediaPlayer.php?view_id=44&clip_id=2713The segment regarding Specialty Court for the Homeless and Veterans begins around 1:29:48 and ends around 1:35:15.

Congrats to Daniel Melo, Former Clinic Student!

May 12, 2015

Daniel Melo, recent December 2014 CSL graduate and past Justice Leaguer (that’s what the Civil Rights Clinic calls itself in hushed tones to one another), recently joined the Gorman Law Firm in Charlotte after successfully passing the February 2015 bar. Daniel is joining two other attorneys, lending his bilingual skills to working on immigration matters, particularly business visas, as well as criminal defense, traffic, and civil suits. Daniel hopes to continue working alongside the League in pursuing justice for the underserved populations of Charlotte. Check out the Gorman Law Firm here.

Congrats on your success, Dan!

Gone But Not Forgotten: Application of the Public Trust Doctrine to Preserve North Carolina’s Resources

May 7, 2015

By: Jason Arter

In a quest for more energy sources, the land and the resources are quickly being abused. The public must know that there alternative means to protect the basic resources needed for life in general. The Public Trust Doctrine (herein “Doctrine”) in its most current application dictates the protection of resources for citizens of the state; it can be a useful tool for the states as adopted in the federal judicial system. Although this Doctrine has never been codified, judges have engineered a basic set of principles that allow states natural resources to be protected. The Doctrine was developed through the federal government as a means to protect critical natural resources such as forests, land, and most importantly water. It is now incumbent upon the states to use this Doctrine to protect the environment inside each state’s respective borders.

The rights of one should not jeopardize the rights of many, in my opinion. Allowing individuals, energy companies, and states to use methods, such as off shore drilling, to extract oil reserves is a violation of the Doctrine when the extraction damages resources that have been dedicated to the public for their welfare. If allowed to use this method, the damaging effects can be quickly realized, and those effects such as damaging water reserves can be catastrophic. Thus, the natural resources, such as clean drinking water, which would otherwise provide for many, will be jeopardized. Effective application of the Doctrine, through state and local action, will not only guarantee the protection of natural resources, but ensure the protection of rights as established in many state constitutions. The natural resources in North Carolina have been set aside for the citizens of the state. The state constitution reads in Article 14 Section 5:

It shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry, and to this end it shall be a proper function of the State of North Carolina and its political subdivisions to acquire and preserve park, recreational, and scenic areas, to control and limit the pollution of our air and water, to control excessive noise, and in every other appropriate way to preserve as a part of the common heritage of this State its forests, wetlands, estuaries, beaches, historical sites, open-lands, and places of beauty.[1]

A narrow and naive perspective would allow a person to think that this will not happen to our state, but just ask the citizens of the gulf after the BP Deepwater Horizon disaster.

Deepwater Horizon aerial view of the explosion. Photo courtesy of nbcnews.com.

Aerial view of the BP Deepwater Horizon explosion. Photo courtesy of nbcnews.com.

The state and its political components have a duty, and it is the responsibility of the citizens to remind those in office of this forgotten doctrine. Although it may appear a daunting task, a simple letter, a call to a person’s representative, or a grass roots signature campaign may raise the awareness levels of the elected officials duties. Those duties are clearly documented in the constitution of this state and countless other states.

Development of the Public Trust

As initially applied, the Doctrine protected commerce on the public waterways.[2] This Doctrine, however, has evolved, morphing into a tool for concerned citizens to protect wildlife and the natural resources of the state. It is under this developing model that the Doctrine has begun to gain traction in the preservation of natural resources.[3] As early as 1896, this concept of “public trust” was applied in American courtrooms. Initially, the concept within the United States courts was only used for navigable waterways and the adjacent land when the tides were low.[4] Although the concept has never been codified into federal law, it has been recognized as a “backbone” principle in deciding cases affecting states and their rights regarding land issues.

States have begun to effectively use this Doctrine in preserving not just water, but drinking water. The California Supreme Court has stated:

The state as sovereign retains continuing supervisory control over its navigable waters and the lands beneath those waters. The principle, fundamental to the public trust. . . prevents any party from acquiring a vested right to appropriate water in a manner harmful to the interests protected by the public trust.[5]

This, however, is not a new American concept. The initial Doctrine can be traced back to the early Roman Empire. It was believed, in its most basic form, that, “[b]y the law of nature,” every citizen was entitled to the common resources of the Empire. Among those being clean air, running water, seas, and the shores of the seas.[6] It is under this model that the Doctrine can be applied to the current issue of offshore oil drilling, which has become an issue for the citizens of North Carolina and the resources of this state.

Although its roots have evolved from the times of the ancient Romans through the English court system, the principles associated with the Doctrine have been successful in the modern courtroom.

North Carolina should recognize the harms associated with offshore drilling and the conflict that is created by not ensuring clean water resources for the citizens of this state. Although fracking is considered more damaging to ground water, the issue of fracking has been settled among the counties in this state. With the issue of fracking addressed, the potential of damage now stems from the potential of offshore drilling.

Why Does It Matter?

Since his inaugural speech, Governor McCrory has pushed for offshore drilling and has renewed the pressure directly at the Obama administration to relax federal legislation, which would allow drilling to begin sooner rather than later. The offshore drilling concern in North Carolina was heightened when Governor McCrory formed a coalition (which he also heads) with South Carolina Governor Nikki Haley.[7]

In recent events, the Obama administration has also begun to weaken in its attempts to limit offshore drilling. President Obama has agreed to allow federal licensing to begin for several tracks of ground located fifty miles off the coast of North Carolina.[8] This opens the door for the drilling to begin, promoting the ideas of energy independence and national security. Both ideas are worthwhile, but the risk versus the reward is the primary concern.

National security–although listed independently–seems to be a byproduct of the goal of energy independence. Governor McCrory has also stated that thousands of jobs would be created, and millions of dollars would be generated into the state’s economy.

All of these goals on the surface would be beneficial, but it only takes one BP Deepwater Horizon Disaster to erase all of it. It only takes one spill to contaminate coastal waters, and the water supplies of countless communities. The question has been raised regarding increased safeguards. These safeguards would come at the expense of the citizens as taxpayers, for whom the resources should naturally be protected. It seems counterintuitive that when a constitution sets the resources to be protected for the citizens, the citizens should pay for something that is natural.

The Doctrine then becomes a critical tool for the prevention of these dangers. As an established right in the constitution of North Carolina, citizens should not be denied clean water for the pursuit of a bottom line profit margin. The resources of this state are for the citizens to use and enjoy, not for a company to ruin with a profit as its only goal. Although at first glance, the drilling offshore may not be a civil rights issue, a quick reminder of the lives, jobs, industries, and resources that were all lost with just one incident should be remembered. The question of speculation surrounding the potential for disaster seems to ease the concerns for some, but why wait and be reactive to a disaster, when proactive prevention can be the answer?

[1] N.C. Const. art. XIV § 5.

[2] Illinois v. Illinois Central R.R. Co., 184 U.S. 77, 22 S. Ct. 300, 46 L.Ed. 440 (1902).

[3] Michael C. Blumm & Rachel D. Guthrie, Internationalizing The Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulfilling the Saxion Vision, 45 U.C. Davis L. Rev. 741, 745 (2011).

[4] Parks v. Cooper, 676 N.W.2d 823, 837 (S.D. 2004).

[5] National Audubon Society v. Superior Court, 33 Cal. 3d 419, 445 (Cal. 1983).

[6] Allan Kanner, The Public Trust Doctrine, Parens Patriae, and The Attorney General as the Guardian of The State’s Natural Resources, 16 Duke Envtl. L. & Policy F. 52, 67 (2005).

[7] Amara Omeokwe, Gov. McCrory Applauds Offshore Drilling Proposal for Carolinas, 2015, Time Warner Cable News, available at http://www.ny1.com/nc/coastal/news/2015/01/28/gov–mccrory-applauds-offshore-drilling-proposal-for-carolinas.html.

[8] Ben Geman, Obama Proposes Opening Atlantic Ocean to New Oil Drilling, 2015, National Journal Online, available at http://www.nationaljournal.com/energy/obama-proposes-opening-atlantic-ocean-to-new-oil-drilling-20150127.

Eyewitness Testimony: What Happens When You Do Not See What You Thought You Saw

May 5, 2015

By: Carla Vestal

Earlier this year, there was a dress that had everyone on the internet up in arms, and no, it was not something a reality television person was wearing. The most talked about dress this year was from the online retailer Roman Originals and the question asked was, “What color is the dress?” Some people looked at the image and saw gold and white. Others looked at the dress and saw black and blue. When a picture of the dress was placed in Photoshop, the picture-altering program labeled it as both, white and gold and black and blue! Personally, the picture entertained me for a few hours because sometimes I saw blue and black and other times the alternate. I would look at the picture seeing white and gold, close my eyes, count to three, reopen my eyes and see black and blue.

Other than this image being a cool optical illusion online, I began to question, “How much should you trust your own eyesight?” Or, more importantly, “How much weight should be placed on eyewitness testimony in criminal trials?” Black’s Law Dictionary defines eyewitness testimony as “a statement given under oath by a witness.” Simple enough. But, what if our eyes, like in viewing the now most famous dress of this decade, aren’t as trustworthy as we think they are?

How long have our eyes been playing tricks on us?

Critics have questioned eyewitness testimony as early as the 1900s, and major criminal defense advocates, such as the Innocence Project, claim that “eyewitness misidentification is the greatest contributing factor to wrongful convictions, playing a role in about 75% of convictions overturned through DNA testing nationwide.” The raw numbers indicate some other troubling data. The most current data on wrongful convictions cite that, of the 318 cases overturned, 72% were overturned due to bogus eyewitness testimony. That is an astounding 229 innocent people who have been sentenced to prison because of what later turned out to be erroneous eyewitnesses. And that is not all that happened because of this faulty testimony. While the innocent were serving sentences for crimes they did not commit, the real perpetrators, who have been identified in 90 of these cases, were out committing more crimes: 63 rapes, 17 murders, and 18 other violent crimes.

Do people of different races all look alike?

Our perceptions of people who look differently than we do is called the “cross-race effect.” The cross-race effect asserts that people of the same race are better able to recognize faces of the same race than the faces of people who are of a different race. In a study by Behrman and Davey in 2001, 271 police cases were analyzed and the results showed that people of the same race correctly identified the suspect 65% of the time, whereas, only 45% of the witnesses were able to correctly identify the suspect if the suspect were of another race.[1] The theory behind this disparity is, regardless of race, people share an ingroup advantage with members of the same race. This ingroup advantage allows people of the same race to process facial features of their own group in a more holistic manner than when looking at a person of a different race. When observing a person of a different race, an individual recognizes characteristics that are attributable to that race as a whole. The consequence of this cross-race effect causes disparity when people witness a person of another race committing a crime, because it is more likely that the witness will misidentify the suspect due to the decreased ability of different races to identify the facial characteristics of another race’s face.

The brain does not remember what the eyes see

Vision is composed of three distinct, yet highly interdependent phases: sensation, attention, and perception. The first step of sensation is detecting light and basic shapes. Sensations are ephemeral and a very small amount of what is sensed is perceived. Attention is the process used by the visual system to send selected information that has been sensed for further processing. Perception is when the attended sensations are linked to “environmental cause, made coherent, and categorized through the assignment of meaning, utility, value, and emotional valence.” Memories and emotions from prior experiences also interweave within these new images, adding value and meaning to the individual.[2]

When analyzing how vision works, it is equally important to consider how vision works in relation to distance. People who identified as having “good eyesight” could not see the eyelashes on a person from ten feet away. When 200 feet away, the eyes themselves blur, and at 500 feet, no recognizable facial features can be ascertained. Other factors that have been found to affect the witness include the amount of stress involved, weather conditions, noise levels, and if a weapon had been used.

The memory itself is not stored in one part of the brain, but is recalled through the activation of several parts of the brain that work together. For example, the emotion that a memory brings is stored in one area of the brain, and the content of the memory is stored in another place. Hormones help engrave memories in our brains and then those same hormones categorize new experiences based on old ones. Adding to the matrix of how vision and memory work, “there are between 200 and 400 billion neurons in the brain and each neuron has about 10,000 connections.” Nobel Prize winning neuroscientist Gerald Edelman, Ph.D., sums memory up as the ability to repeat a performance – with mistakes.

How mistakes are added into a memory and how false memories are made

Memory is malleable, so malleable in fact, that studies have shown in studies that memories can be recalled by 25% of people who have never had the experience by mere suggestion and non-verbal clues given by others. Studies show that witnesses will pick the wrong suspect out of a line-up 25% of the time, and when the suspect is absent from the line-up the witnesses will pick an innocent person more than 33% of the time. Witnesses pick-up on nonverbal communication from the officers conducting the line-up when the officer knows the suspect is present, regardless of whether it is the correct person or not. Thus, this solidifies the witness’s choice and the witness becomes more confident in the identification. As litigators know, a confident eyewitness on the stand, regardless of whether the witness is correct or not, has a great impact on a jury.

The court and science come together

Over the past 30 years, there have been hundreds of sociological studies performed to test the reliability of eyewitness testimony and to determine what factors, if any, influence the brain’s recall system and the witness’s self-affirmance of what she or he may have experienced. The New Jersey Supreme Court in 2011 made a landmark decision where it reviewed a special master record of 300 exhibits and 200 scientific studies in the case of State of New Jersey v. Henderson. The court decided that when studying eyewitness testimony,2 groups should be identified: “estimator variables” and “system variables.”

Estimator variables are things that cannot be controlled by the criminal justice system. Examples of estimator variables are the amount of light between the alleged and the distance between the witness and alleged perpetrator. Things that the criminal justice system can and should control for are system variables. System variables include procedures such as how law enforcement retrieves and stores witness testimony, how it conducts line-ups, photo arrays (six-packs), and instructions given to witnesses when participating in identification procedures. State of New Jersey v. Henderson, 27 A.3d 872 (N.J. 2011).

What can be done to improve the system used?

From the scientific evidence that supports the fallibility of eyewitness testimony and the decision rendered in Henderson, there are several methods that can be used to ensure that innocent people are not identified through eyewitnesses. For example, blind administration of the officer conducting line-up, where the officer conducting the procedure does not know who the alleged suspect is, would greatly reduce the non-verbal communication signals the witness may interpret as positive feedback. Also, when using fillers in line-up composition, the fillers should resemble the description on the person given by the witness, and the same fillers should not be used in multiple line-ups. This would reduce the likelihood that seeing the same person multiple times would implant a false recognition in the eyewitness’s memory. Other improvements would allow for the identification process to be recorded; eyewitnesses would memorialize their own confidence level in the identification made; and the conducting officer would tell the witness that the suspect may or may not be in the line-up, and the investigation will continue regardless of the outcome. During the investigation process, implementation of these procedures would lessen misidentification. The lack of these processes being used gives the defense an opportunity to attack the eyewitness’s identification during a trial. If the procedures were implemented nationwide they would protect innocent people from overzealous police and prosecutors, thus helping to ensure that a suspect will have a fair trial.

But what color is the dress?

The designers have confirmed the dress is blue and black.

To learn more about eyewitness identification, vision processing and how the brain stores memories visit:





[1] B. W. Behrman & S. L. Davey, Eyewitness Identification in Actual Criminal Cases: An Archival Analysis, 25 Law & Hum. Behav. 475 (2001).

[2] Comm. on Scientific Approaches to Understanding and Maximizing the Validity and Reliability of Eyewitness Identification in Law Enforcement and the Court et al., Identifying the Culprit: Accessing Eyewitness Identification 46-47 (2014).

Black Faces

April 30, 2015

By: Anthony James

The characters of blackface have played a significant role in disseminating racist images, feelings, and perceptions worldwide. Desensitizing Americans to horrors of chattel slavery, these performances were lessons about the innocuousness of southern slavery. For more than one hundred years, the credence that blacks are an inferior species is fostered by multitudes of white performers in blackface.

In the United States’ early years, exaggerated red lips were painted around the mouths of white performers, like those of today’s circus clowns. In later years, their lips were usually painted white or unpainted. Costumes were usually gaudy combinations of formal wear; swallowtail coats, striped trousers, and top hats. Minstrel shows became hugely popular in the 1840s, exposing white audiences in the North to their first introduction to any depiction of black life. Minstrel show entertainment included imitating black music and dance and speaking in a “plantation” dialect. They would often feature a broad cast of characters: from Zip Coon, the educated free black man who pronounced everything incorrectly, to Mammy, a fat, black faithful slave who was really just obviously played by a man in a dress. Black children were depicted as unkempt and ill-raised pickaninnies. The joke about pickaninnies was that they were disposable; they were easily killed because of their stupidity and the lack of parental supervision. From 1840 to 1890, minstrel shows were unarguably the most popular form of entertainment in America, and it is possible that a resurgence of that old song and dance has once again become trendy.

The stigma left behind once the shows were no longer popular continued full steam ahead like a freight train filled with passionate disparagement of the Black people. Many white Americans during the time of the minstrels’ rise were already thinking in this regard, so to see it on stage for the purpose of entertainment gave the stereotypes life. Today, however, even with major steps in a more positive representation, the Black image remains stereotyped as if it were passed down hereditarily.

University of Florida students at a "Black Face party." Photo courtesy of TheGloss.com.

University of Florida students at a “Black Face party.” Photo courtesy of TheGloss.com.

From the University Of Florida to the University of California, Irvine to Arizona State University, blackface videos, images, and parties continue to pop up at predominantly white colleges across the United States. The people who attend these functions “dress like Black people,” wearing baggy jeans, gold chains and grills, bandanas, basketball jerseys, and more importantly is the blackface that puts the entire outfit together. Lets talk specifics, on Oct. 24, 2012 two members of the Beta Theta Pi fraternity at the University of Florida wore blackface to a party called “rock stars and rappers.” The photos taken showed two men wearing thick gold chains, baseball caps and “pants that hang so low they show their boxer shorts.” Beta Theta Pi president Ethan McMahon said, “While their actions were not intended with any malice or ill will to any members of our community, clearly they were offensive, and we accept full responsibility accordingly.”

Following the trend, the fraternity at Arizona State University that decided to celebrate the national holiday honoring civil rights leader Martin Luther King, Jr., by holding a party titled “MLK Black Party.” Tau Kappa Epsilon fraternity attendees wore basketball jerseys, drank from cups made out of watermelons, and flashed gang signs for the camera. The idea of the party was for White students to “black out for MLK day.” Has this become more of an act of advanced ritualistic racism, or are young adults innocently and unknowingly making a mockery of Black history? The answer is not simple, but it does not matter because the outcome is the same.

Dartmouth College students at a "Blood and Crips" party. Photo courtesy of TheGloss.com.

Dartmouth College students at a “Blood and Crips” party. Photo courtesy of TheGloss.com.

In 2013, at Dartmouth College, a fraternity and sorority hosted a “Bloods and Crips” themed party. They invited attendees to dress up as either a Blood or Crip, referring to the notorious, predominately black street gangs based in Los Angeles. A partygoer described it as a “ghetto party” with racialized language, speech and dress.” She even acknowledged that over 200 individuals attended this event. Over 200 potential students “dressed as black people” attended and used slang-like language for the purpose of entertainment. However, the Fraternity made a statement saying, “The idea was never meant to be derogatory to any group, and was intended to introduce a costume theme to the party.”

As a student, my disappointment stems from the lack of empathy or effort to care about the consequences that stem from the actions demonstrated by my fellow colleagues, who represent the most prestigious of higher education facilities in the world. As a scholar, I understand that the best and the worst of history tend to repeat itself. However, as a member of the Black community, I am hurt. Hurt because of the constant refusal as humans to see ourselves in people who do not look like us. Some of these events felt racially inspired and prejudicially motivated, while others seemed clear that the parties involved had little cultural awareness or competency, and did not understand the historical implication of costuming in blackface. Either way the coin flips, the outcome is the same in the eyes of the communities forced to live the lives being depicted for amusement.

Even more disturbing are the locations in which these events are taking place. The future leaders of America are demonstrating the effects that black face had, and still has, on the depiction of Black life. While these are not acts of violent racist nature, how long before the ideas promoted by these caricatures spill over into something more sinister? The idea becomes a thought process, and the thought processes are then carried out in how you act and react. Before long, these seeds of thought become the very trees of public opinion in which Blacks were forced to hang from for years. To ignore that possibility is to ignore the very fabric of thought that brought this issue before us today. The new black face isn’t on television, you cannot find it on broad way at the theatre, instead it is what the future of America does on a Friday night.

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