Juries can decide if Title VII plaintiff was an independent contractor

Title VII offers employees broad protections against discrimination, but the plaintiff must be an employee. Independent contractors have no rights under Title VII. In this case, the plaintiff sued SUNY Stony Brook for discrimination, but the jury said he was an independent contractor. The Court of Appeals affirms.

The case is Knight v. SUNY Stony Brook, decided on January 29. Plaintiff is an electrician who worked at the college. He reported racist graffiti in a bathroom at his worksite. Then he got fired. This could give you a racial discrimination case under Title VII, but the initial hurdle is whether he was even an employee. The jury was asked that question, and it said he was not. Knight says it was improper to leave this issue to the jury, that it was a question for the trial court.

When is someone an employee as opposed to an independent contractor? You can be a contractor in name but actually an employee, depending on the following factors. The main question is control over the worker. We ask:

the hiring party’s right to control the manner and means by which the product is accomplished[;] . . . the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

We call this the Reid factors, named after a Supreme Court ruling, Cmty. for Creative Non-Violence v. Reid, 490 US 730 (1989). Here's the question: can this issue be plopped in the jury's lap? The Court of Appeals (Winter, Lynch and Droney) answers that in the affirmative. The parties disputed the facts relating to the Reid factors. Under Kirsch. v. Fleet Street, 148 F.3d 149 (2d Cir. 1998), the jury can resolve these issues. Kirsch guides this case, and the Second Circuit holds that "a trial court does not commit error by submitting the question of whether the plaintiff was the defendant's employee to the jury, whether by general verdict or by special question."

Qualified immunity gets officers off the hook in prison sexual abuse case

Astute readers know that qualified immunity plays a big role in federal civil rights litigation. These cases are brought under Section 1983, the federal civil rights statute. Not all governmental officials who break the law are found liable under Section 1983. If the law was not clearly established at the time of the rights violation, these defendants get the benefit of the doubt and cannot be sued.

The case is Crawford v. Cuomo, a summary order decided on January 25. The plaintiffs were inmates in state prison. They claim the defendant officers fondled their genitals during pat-frisks and that one defendant, Brown, was deliberately indifferent to defendant Prindle's predations. In 2015, the Second Circuit held in this case that the plaintiffs stated a claim under the Eighth Amendment. 796 F.3d 252 (2d Cir. 2015). On remand, the trial court granted defendants qualified immunity, holding that at the time of these incidents, the courts had not yet clearly squared away the contours of this right under the Eighth Amendment. Hence, qualified immunity for the defendants.

The Court of Appeals (Katzmann, Kearse and Oetken [D.J.]) now holds that the trial court got it right on remand and that the officers get qualified immunity. While the Second Circuit did hold in Boddie v. Schneider, 105 F.3d 857 (2d Cir. 1997), that "sexual abuse of a prisoner by a corrections officer may in some circumstances violate" the Eighth Amendment, that does not mean the law was clearly established when the defendants in Crawford allegedly fondled the plaintiffs. The Court reasons:

Although Boddie held that inmate sexual abuse could, in principle, violate the Eighth Amendment, it concluded that a “small number of incidents in which [the plaintiff] allegedly was verbally harassed, touched, and pressed against without his consent” were insufficient to state a claim. Contrary to plaintiffs’ argument, the allegations we considered in Boddie are quite similar to the allegations here. A reasonable officer could therefore have believed that the sexual abuse here alleged, even if it might violate state criminal law or subject him to tort liability, did not violate the Eighth Amendment. At a minimum, any constitutional distinction between this case and Boddie was not clearly established in March 2011.

Plaintiffs also argue that cases from other circuits had foreshadowed the Second Circuit's holding in the first Crawford appeal that defendants violated the Constitution. No dice. "Although some other courts had described an inmate’s right to be free of sexual abuse in admirably clear, broad terms, '[t]he dispositive question is whether the violative nature of the particular conduct is clearly established,' and out-of-circuit authority was, at the time, sharply divided on whether abuse comparable to Prindle’s was cruel and unusual."

What it all means is the defendants are off the hook. If the plaintiffs are correct that they were fondled during a pat-frisk, the defendants may have known they were acting immorally. But the law at the time did not squarely hold that their actions violated the Constitution. This case surprises me, as I assumed that any abusive conduct by a corrections officer would squarely violate the Constitution. I was wrong.

Sex, drugs and rock and roll = probable cause

The Supreme Court has unanimously ruled that the the police had probable cause to arrest partygoers who turned a vacant house into something resembling a strip club. The Court also finds the officers are entitled to qualified immunity. The case is not that remarkable, but the Justices make a few off-hand comments that will interest lawyers who handle Section 1983 cases.

The case is District of Columbia v. Wesby, decided on January 22. Justice Thomas describes the party. It makes Animal House look like a night at the library. Loud music, lap dancing, women running around in bras and thongs, used condoms lying around, drugs and alcohol, partygoers hiding in the closet when the police arrived and a woman named Peaches who was said to have permission for the party but who was not even there and became evasive and hung up the phone when the police tracked her down.

The lower courts said the police had no probable cause to arrest the party people for disorderly conduct. The Supreme Court reverses. An argument can be made that the police could not have assumed the partygoers were trespassing, but the police did not have to accept that argument when they made the arrests. Probable cause sets a relatively low standard. The police do not have to accept the arrestees' side of the story, and they can instead consider the totality of the circumstances in making their probable cause determination. In addition to the crazy madness going on at the house, the police were able to consider how everyone scattered when the police showed up and there was no bachelor for this purported bachelor party. In finding otherwise, the lower courts applied a technical analysis, viewing each fact in isolation. But the police do not have that luxury, the Supreme Court says. In the end,

The circumstances here certainly suggested criminal activity. As explained, the officers found a group of people who claimed to be having a bachelor party with no bachelor, in a near-empty house, with strippers in the living room and sexual activity in the bedroom, and who fled at the first sign of police. The panel majority identified innocent explanations for most of these circumstances in isolation, but again, this kind of divide-and-conquer approach is improper. A factor viewed in isolation is often more “readily susceptible to an innocent explanation” than one viewed as part of a totality. And here, the totality of the circumstances gave the officers plenty of reasons to doubt the partygoers’ protestations of innocence.

The Court also provides an extensive discussion on qualified immunity, which lets public officials like police officers off the hook if they did not violate clearly-established law. The Court reminds us that, to hold officers accountable for constitutional violations, the plaintiff has to show the rights violation was so clear that the officer was incompetent. You don't need a case on point but the cases have to be pretty close. As the Court says,

Given its imprecise nature, officers will often find it difficult to know how the general standard of probable cause applies in “the precise situation encountered.” Thus, we have stressed the need to “identify a case where an officer acting under similar circumstances . . . was held to have violated the Fourth Amendment. While there does not have to be “a case directly on point,” existing precedent must place the lawfulness of the particular arrest “beyond debate.” Of course, there can be the rare “obvious case,” where the unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does not address similar circumstances. But “a body of relevant case law” is usually necessary to “ ‘clearly establish’ the answer” with respect to probable cause.

Since there is no case out there that resembles this one, even if the police lacked probable cause, they would be protected by qualified immunity. Which brings me to two separate points. First, Justice Thomas notes that the Supreme Court has never told us what body of law governs the clearly-established case law analysis. Do we only look at Supreme Court cases? Or Circuit Court cases? Most if not all of the Court of Appeals hold that we review Supreme Court cases and the appellate rulings in whatever jurisdiction where the case is situated. In my world, that's the Second Circuit. But it may surprise civil rights lawyers to know that the law of qualified immunity is not clearly-established. If the Court limits this review to Supreme Court cases, that will kill off many civil rights cases. The Court does not hear as many cases as the lower Circuit Courts, which would give plaintiffs fewer cases to point to in claiming the defendant violated clearly-established law.

Another point surfaces in Justice Ginsburg's concurrence. As police misconduct plaintiffs know, in determining whether the police falsely arrested someone, we consider the objective basis for the arrest, not the officer's subjective reasons. So if the officer hates you and places you in custody for that reason, but an objective officer would have arrested you anyway (because there was in fact probable cause for the detention), then the arrest is legal. She writes,

The Court’s jurisprudence, I am concerned, sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection. A number of commentators have criticized the path we charted in Whren v. United States, 517 U. S. 806 (1996) , and follow-on opinions, holding that “an arresting officer’s state ofmind . . . is irrelevant to the existence of probable cause,” Devenpeck v. Alford, 543 U. S. 146, 153 (2004) . See, e.g., 1 W. LaFave, Search and Seizure §1.4(f ), p. 186 (5th ed. 2012) (“The apparent assumption of the Court in Whren, that no significant problem of police arbitrariness can exist as to actions taken with probable cause, blinks at reality.”). I would leave open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry. 

First Department says plaintiff's image in HIV public service advertisement is defamatory

Basic defamation law holds that it's "defamation per se" if someone says you have a "loathesome disease." If it's defamation per se, damages are presumed and the plaintiff does not have to put on evidence of actual damages. The question here is whether New York State committed defamation per se when it used plaintiff's photo without her permission in an HIV/anti-discrimination public service announcement.

The case is Nolan v. State of New York, an Appellate Division First Department case issued on January 16. Plaintiff posed for a photograph two years ago in connection with an online magazine about music. Unknown to her, plaintiff's picture was sold to Getty Images, which compiles and sells stock photos. The state used her picture in the HIV/anti-discrimination ads that promoted the State Division of Human Rights, an anti-discrimination agency.

The loathesome disease rule asks whether the defendant's statement would lead people to think the plaintiff has a disease that is "contagious or attributed in any way to socially repugnant conduct." That rule is as old as the hills. The question is whether the HIV advertisement falls within this rule. "Critical to the determination is understanding the 'temper of the times' and the 'current of contemporary public opinion.'" There was a time that it was defamation per se to accuse someone of homosexuality, but the Third Department in 2012 "heavily criticized" that view, noting that "lingering prejudice towards homosexuals was insufficient to warrant the inclusion of a false imputation of homosexuality in the categories of material that give rise to a finding of defamation per se." While the State says that Third Department case means there is no defamation per so to imply someone has HIV, the First Department disagrees, stating that "HIV affects a broad spectrum of the population, including intravenous drug users," and sociological students show that HIV continues to be a significant stigma.

The First Department goes out of its way to emphasize that it does not "in any way regard HIV or any other disease to be 'loathesome,' and we disfavor that word," as "society aspired to embrace people with various medical conditions, as reflected in the Americans with Disabilities Act and the myriad state and local statutes and ordinances requiring accommodations for an equal treatment of such persons." The court would "prefer a formulation that makes clear that an imputation of a particular disease is actionable as defamation per se not because the disease is objectively shameful, but because a significant segment of society has been too slow in understanding that those who have the disease are entitled to equal treatment under the law and the full embrace of society. Such a reworking of the category reflects the reality that those who suffer from the condition are the unfortunate targets of outmoded attitudes and discrimination."

Wandering Dago, Inc. wins free speech case in the 2d Circuit

The Supreme Court has been taking an absolutist view on free speech over the last decade, ruling that campaign donations are free speech (Citizens United) and that even the most offensive speech imaginable is protected under the First Amendment (military funeral protests by the anti-gay Westboro Church). Last year, the Court held that the federal government could not deny a trademark to an entity that used an ethnic slur to promote its product. That was the Matal case. Matal compels the Court of Appeals to now hold that New York State cannot deny a food vendor a license based on its name, an ethnic slur.

The case is Wandering Dago, Inc. v. Destito, decided on January 3. Wandering Dago is the name of a food vendor that wants to sell food in the Capitol complex in Albany, where a series of government buildings surrounding the State Capitol that empties out during lunchtime in a huge park-like concourse that is home to food vendors and tourists who admire the beautiful Empire State Plaza that Gov. Rockefeller built with his bare hands as a means to impress foreign dignitaries. The State of New York denied Wandering Dago permission to sell food at Summer Outdoor Lunch Program because the business name is a slur against Italians.

Nowadays, the public is increasingly aware of offensive speech and the need to be "politically correct." At the same time, when it comes to free speech, anything goes at the Supreme Court, including ethnic slurs. In 1995, the Court held in the Rosenberger case that the government discriminates against viewpoints when it disfavors certain speech because of the "specific motivating ideology or the opinion or perspective of the speaker." In 2007, the Court said the Patent Office could not issue a trademark for a rock band called The Slants, a slur against Asians. The Court reasoned that the trademark denial was unconstitutional viewpoint discrimination. Justice Kennedy said in concurrence that the government policy of "mandating positivity . . . might silence dissent and distort the marketplace of ideas" even if the policy is applied evenhandedly to all participants. In other words, it is not for the government to decide what is offensive. That case is Matal v. Tam, 137 S.Ct. 1744 (2017).

The reasoning in Matal strikes down New York's policy guiding the Summer Outdoor Lunch Program. The Court of Appeals (Carney, Calabresi and Amon [D.J.] says: 

Ultimately, we think Matal compels the conclusion that defendants have unconstitutionally discriminated against WD's viewpoint by denying its Lunch Program applications because WD branded itself and its products with ethnic slurs. Although ethnic slurs are used to express a variety of opinions and obtain a variety of effects, under Matal the mere use of these potentially offensive words in the factual setting presented here reflects a viewpoint and cannot be framed by the government as a larger viewpoint-neutral category of speech content available to advance multiple viewpoints and therefore subject to less First Amendment protection.

In addition, the viewpoint discrimination is not justified, the Second Circuit holds. This form of censorship is legal only if the government identifies a compelling reason for it. "Defendants have not argued that their actions, if correctly characterized as viewpoint discrimination against WD's private speech, were sufficiently justified by OGS's governmental interests to survive First Amendment scrutiny. Nor do we think that that argument could be successfully made here, but we address it briefly to complete the analytical picture."

Supreme Court vacates death sentence because of racist juror

The Supreme Court has been cracking down on racism in the criminal justice system lately. In this case, decided without oral argument, the Court says a man on death row deserves a new trial because one of the jurors signed an affidavit demonstrating that racism factored into the verdict. Three Justices dissent.

The case is Tharpe v. Sellers, decided on January 8. Post trial, the defense team got one of the jurors, Barney Gattie, to sign an affidavit stating that he thought "there are two types of black people: 1. Black folks and 2. Niggers." He also said the defendant "wasn't in the 'good' black folks category" and "should get the death penalty for what he did," and that "some of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks, but that wasn't my reason." Gattie also said, "after studying the Bible, I have wondered if black people even have souls."

The Supreme Court says that this "remarkable affidavit," which Gattie never retracted, "presents a strong factual basis for the argument that Tharpe's race affected Gattie's vote for a death verdict."

Justice Thomas writes the dissent, which Justices Alito and Gorsuch join. Thomas is not happy with the majority. He writes, "If bad facts make bad law, then 'unusual facts' make unusual decisions." He accuses the majority of "bending the rules" to "show its concern for a black capital inmate." Then, in a Scalia-like barb, he writes, "the Court must think it is showing its concern for racial justice. It is not."

After summarizing the gruesome details of the murder, Thomas notes that Gattie signed a second affidavit that said he "did not vote to impose the death penalty because Tharpe was a black man" but because Tharpe was guilty and showed no remorse. The second affidavit also said that Tharpe's lawyers took his statements out of context and they "were deceiving and misrepresented what they stood for." In a later deposition, Gattie said that on the day he signed the first affidavit, he drank "maybe a 12 pack, and a few drinks of whiskey." In addition to attacking the procedural defects surrounding the defendant's habeas corpos petition, Thomas says "no reasonable jurist could debate the question of prejudice in light of the second affidavit in which Hattie said he did not swear to the first affidavit  and "had consumed a substantial amount of alcohol on the day he signed it." The other jurors denied imposing the death penalty out of racial prejudice. In the end, Thomas says, the Court should defer to the lower court's credibility determination on this issue, which found against racial prejudice.

Defendants have the burden of pleading and proving Title VII exhaustion issues

The Second Circuit says for the first time that the defendant has the burden of showing that the plaintiff in a Title VII suit did not properly exhaust his administrative remedies.

The case is Hardaway v. Hartford Police Department, decided on January 12. Hardaway claims that management subjected him to racial discrimination in employment. To bring a claim under Title VII, plaintiffs have to file an administrative charge of discrimination with the EEOC or the state human rights office within 300 days of the discriminatory act. We call this "Title VII exhaustion," which is not a jurisdictional requirement. That means the defendant can waive its objection to an untimely Title VII action. Also, the Title VII exhaustion requirement is "subject to equitable defenses."

In the past, the Second Circuit has said compliance with the Title VII filing deadlines operate as an affirmative defense. It has also said the failure to exhaust administrative remedies "can be asserted by the government as an affirmative defense" in Title VII cases bought by federal employees, whose cases are governed separate statutory provisions and regulations.

Further developing this exciting line of cases, the Court of Appeals (Winter, Pooler and Calabresi) adopts the view taken by most of the other circuits, holding that "the burden of pleading and proving Title VII exhaustion lies with defendants and operates as an affirmative defense." This decision "follows from other areas where administrative exhaustion is an affirmative defense," such as in prisoner litigation under the PLRA.

Some confrontation clause for you all

This is an interesting habeas corpus ruling that is relegated to the land of summary orders and will not get attention despite its take on a recent Supreme Court ruling on the confrontation clause and criminal prosecutions.

The case is Cook v. Bayle, issued on December 27. The framers of the Constitution did not want people being thrown into the slammer on the basis of eyewitness testimony that the defendants had no opportunity to cross-examine. Hence, the confrontation clause, part of the Sixth Amendment. The Supreme Court lately has shed light on this concept, ruling that the key to this equation is that the evidence must be "testimonial." In those cases, the Court "addressed the meaning of testimonial in the context of laboratory testing of . . . purported narcotics and actual blood for its blood alcohol content."

In this case, the defendant got pulled over and failed four field sobriety tests. The police also used a breathalyzer test that reported his blood alcohol content as .12 percent. During the arresting officer's testimony, the government introduced into evidence records relating to the breathalyzer, establishing it was working properly that night. Defendant has been arguing ever since that these records were "testimonial" and their introduction at trial violated the confrontation clause.

Defendant raises interesting arguments in this habeas case, which did not prevail in the district court. It also fails in the Second Circuit. Habeas corpus petitions will not succeed unless the defendants can show the constitutional violations violated clearly established Supreme Court precedent. You need a case on point from the Court for the habeas petition to prevail. This case does not make it. The Second Circuit (Livingston, Lynch and Rakoff [D.J.]) states,

First, it is not clearly established that all crime lab records are testimonial. Those “created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial” may be introduced at trial without implicating the Confrontation Clause. Nor has the Supreme Court held that records accompanied by signatures and a seal are testimonial by virtue of such formalities. Next, and most significantly, although the records’ creators may have anticipated that they might be used at trial, what matters is the records’ primary purpose. And here, a reasonable court
could conclude that these records had a primary purpose other than to be a substitute for in-court testimony. . . . Exhibits 5, 6, and 12, while relevant to establish that Cook was guilty, were not created for that purpose. When the relevant breathalyzer tests were performed, the primary purpose of the tests was to confirm that the breathalyzer worked, “not to obtain evidence for use against petitioner, who was neither in custody nor under suspicion at that time.” And irrespective of their evidentiary value, crime labs are required by New York State health regulations to create and keep these records.

2d Circuit reinstates evidence fabrication claim

One of the worst things a police officer can do is fabricate evidence intended to arrest and convict someone. Someone victimized by this can bring a lawsuit against the officers, but the burden of proof is difficult to meet. The Court of Appeals notes that "to state such a fair trial claim, a plaintiff must plausibly allege that investigating officers fabricated information that was likely to influence a jury’s verdict, forwarded that information to prosecutors, and that the plaintiff suffered a deprivation of life, liberty, or property as a result." In this case, the plaintiff states a plausible claim on his fair trial case.

The case is Hicks v. Marchman, a summary order decided on January 5. This appeal arrives in a Rule 12 posture, which means a well-pleaded complaint can survive a motion to dismiss even if the case ultimately fails on a motion for summary judgment.

Plaintiff alleges "that the officers used impermissibly suggestive identification procedures to encourage the victim, T.T., to identify Hicks as her assailant from a photographic array and then failed to disclose the use of those suggestive procedures to the District Attorney’s Office." That allegation is not enough to pursue a claim like this, "because the state criminal court assumed the
procedures were suggestive, excluded the resulting identification, and determined that there was an independent basis for T.T.’s later identifications of case that he relied on in his complaint." But the complaint goes further than that. Plaintiff also claims

(1) a detective deliberately gave T.T. prejudicial information about Hicks during the photo array procedure and hid this misconduct from the court and prosecutors; (2) the officers lied to the prosecutors that Hicks had bragged about being the “Bronx Rapist” and that Hicks’s mother told them that Hicks was the person depicted in the sketch T.T. had created; (3) Hicks’s parole officer ultimately refused to credit T.T.’s identification of Hicks after interviewing T.T.; (4) the officers failed to preserve the photographic array from which T.T. identified Hicks; and (5) two other victims were unable to identify Hicks. In view of Hicks’s ultimate exoneration, these allegations together raise a plausible inference that the officers fabricated information that was likely to influence a jury’s verdict and that they forwarded that information to the prosecutors. Hicks has also adequately alleged that he was arrested as a result of the fabricated information and that the information influenced the prosecutors’ “decision to pursue charges rather than to dismiss the complaint without further action[.]”

Since plaintiff was ultimately exonerated, these allegations raise a plausible inference that the officers fabricated information that was likely to influence the jury's verdict and that they forwarded that information to the prosecutors. The case will proceed to discovery.

Back to the basics on discrimination/retaliation claims

This case is an employment discrimination case that was dismissed on summary judgment and affirmed on appeal. The Second Circuit runs through some basic concepts governing these cases, refreshing us all in this new year as to how these cases work and why they get dismissed.

The case is Carvalho v. Associated Brands, Inc., a summary order issued on December 28. Plaintiff sues under the Americans with Disabilities Act and the Family and Medical Leave Act for discrimination and retaliation. On the promotion denial claim, he says defendant (which makes custom-branded food products) did not choose him to fill a position to which he had applied, a "bouillon machine operator." Plaintiff says he was denied the promotion because of his anxiety disorder.

The Court of Appeals (Parker, Lynch and Droney) assumes plaintiff makes out a prima facie case. Courts will do that from time to time since the prima facie case is easy to make out under the de minimus standard. The Court goes straight to the pretext analysis. Under the framework, if the plaintiff makes out a prima facie case, there is an initial presumption of employment discrimination. Once the employer articulates a legitimate reason for the promotion denial (and it always does), the plaintiff can win the case by showing that reason is a pretext for discrimination. Proving pretext is not easy, and the Second Circuit does not easily find the employer has articulated a false or bad faith reason for an adverse action. This case is no different. Management says it simply did not fill the open position after accepting application for it. The Second Circuit finds no reason to second-guess that business judgment. This case reminds us that courts do not like to second-guess personnel choices.

There is also a retaliation claim. The same analysis governs retaliation claims: plaintiff must proffer some evidence to suggest there was retaliation in the form of a prima facie case. If he does, management articulates a reason which the plaintiff will attack like a pinata. No dice here. Plaintiff does not make out an adverse action. He claims the adverse action took the form of management's treating his FMLA leave as unexcused form FMLA purposes, before later correcting the absence as excused. Management reversed course on this "as a sign of good faith and giving Carvalho the benefit of the doubt" after he complained about it. "This temporary mistaken designation of Carvalho's leave as unexcused is not a 'materially adverse change in the terms, privileges, duration,or conditions of his employment."

NY Court of Appeals endorses cross-racial identification jury instruction

What do we tell the jury about eyewitness identifications in cases where there is a cross-racial identification, such as when a white witness says a black man was at the scene of the crime? The New York Court of Appeals takes up that issue, holding that when identification is an issue in a criminal case and the identifying witness and defendant appear to be of different races, a party is entitled to a charge on the risks inherent in cross-racial identification.

The case is People v. Boone decided on December 14. The Court of Appeals reviews the scholarship and literature on the likelihood of misidentification when an identification is cross-racial, noting that "the phenomenon is known as the cross-race effect or own-race bias." The scholarship says that generally, "people have significantly greater difficulty accurately identifying members of other races than members of their own race. . . . [P]articipants were 1.56 times more likely to falsely identify a novel other-race face when compared with performance on own-race faces."

This phenomenon is problematic in criminal cases where the defendant is identified as the perpetrator based on eye-witness identification. While 47 percent of jurors are familiar with the cross-race effect, this is "by no means a universal belief shared by all. The need for a charge on the cross-race effect is evident." So here is the how the Court of Appeals wraps up this issue:

in a case in which a witness's identification of the defendant is at issue, and the identifying witness and defendant appear to be of different races, a trial court is required to give, upon request, during final instructions, a jury charge on the cross-race effect, instructing (1) that the jury should consider whether there is a difference in race between the defendant and the witness who identified the defendant, and (2) that, if so, the jury should consider (a) that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race and (b) whether the difference in race affected the accuracy of the witness's identification.  The instruction would not be required when there is no dispute about the identity of the perpetrator nor would it be obligatory when no party asks for the charge.

A good tutorial on when someone is free to leave when the police are in your house

This financial executive was the target of an undercover investigation into child pornography and sex crimes. When the FBI went to his apartment, he suffered a massive panic attack and the agents had to temporarily handcuff him as he calmed down. An agent said the defendant was not under arrest and was "free to leave" but that the agents had a warrant to search the apartment. After the agents read him his Miranda rights, defendant confessed to trading child pornography and related malfeasance. Is his confession good, or is it thrown out?

The case is U.S. v. Familetti, decided on December 20. This case reminds us that child pornography arrests can even happen to white collar executives. It also reminds us that the courts are deferential to the police when it comes to confessions like this. The Second Circuit first holds that defendant was in fact interrogated, which happens when someone "is subjected to either express questioning or its functional equivalent" and his statements are "the product of words or actions on the part of the police" that "were reasonably likely to elicit an incriminating response." While the government says this was not an interrogation "because asking for cooperation is not a manner of questioning reasonably likely to elicit an incriminating response," the Second Circuit (Jacobs, Sack and Parker) disagrees, concluding that the government is stretching a Second Circuit precedent (from 1983) "to its breaking point." In other words, the government's argument is nonsense.The Court says that "the FBI agents' affirmative request for Familetti to help them investigate child pornography constituted interrogation."

That does not mean defendant is out of the woods. The Court must also decide if he was in custody when he was asked about cooperation. If he was not in custody, the government could use defendant's admissions against him. Since defendant was at home at the time of the initial interrogation (the "familiar surroundings" doctrine) and the officers told defendant several times that he was not under arrest and was free to leave, these facts tilt heavily in favor of the finding that he was not in custody and should have gotten out of there before he made incriminating statements.

Of course, defendant argues otherwise, noting he was temporarily handcuffed and that one agent said he would have to "consider his options" were defendant to leave the apartment. In the end, he was not the mercy of the police, as the cuffs eventually came off when defendant calmed down. While there were nine FBI agents in his apartment, that fact also does not establish that defendant was not free to leave. The conviction is affirmed.