The NACDL Task Force on Risk Assessment Tools commissioned Dr. Melissa Hamilton to produce a comprehensive analysis of how risk assessment tools are developed and applied. This report is a significant contribution to the body of scholarship and resources concerning risk assessment tools. It is an in-depth and accessible resource for practitioners, policymakers, advocates, and indeed all system actors in the nation’s criminal legal apparatus. It is designed to provide the information and guidance necessary to properly assess various risk assessment tools. [Released November 2020]

The decision to credit a client’s remorse may make a difference at sentencing, but remorse is difficult to assess. People are overconfident in their ability to interpret mental states and sincerity: accuracy rates are no better than chance. Because the decision whether to believe an expression of remorse is subjective, it is a fertile area in which implicit bias can flourish. Professor Eve Hanan suggests steps that advocates can take to counteract bias in remorse assessments.

A report detailing the issues of bias in eyewitness accounts, begins with exemplar case recounting a rape victim pointing out the perpetrator in a photospread, but choosing someone else during a live lineup. 

Brief of Amici Curiae National Association of Criminal Defense Lawyers and Tennessee Association of Criminal Defense Lawyers, Filed In Support of the Defendant/Appellee

Argument: The Court should apply strict scrutiny and hold that Tennessee Code Annotated section 55-10-413(f), which requires the payment of a $250 fee when the Tennessee Bureau of Investigation (“TBI”) provides expert proof to local law enforcement agencies in the form of a blood alcohol or drug concentration test. is unconstitutional on substantive due process grounds. That fee is assessed only when the expert proof provided by the TBI results in a conviction for certain crimes, including DUI. Applying strict scrutiny, this Court should find that section 55-10-413(f) is more restrictive than is necessary to achieve the State’s interest in funding the TBI’s forensic testing operation. Because section 55-10-413(f) encroaches upon the criminal defendant’s fundamental right to a fair trial, strict scrutiny is the applicable standard of review. Section 55-10-413(f) cannot withstand strict scrutiny because it is not narrowly tailored to serve the State’s interest in funding the forensic testing performed by the TBI. Even if strict scrutiny does not apply, none of the State’s arguments demonstrate that section 55-10-413(f) comports with due process principles. Partiality on the part of the TBI forensic scientists is not consistent with due process. The conviction-dependent, contingency-fee system in this case is different than the administrative system of assessing civil penalties at issue in Marshall v. Jerrico. The TBI’s pecuniary interest in obtaining criminal convictions is sufficient to sustain the due process claim. The Court of Criminal Appeals properly suppressed the forensic evidence without requiring a showing of actual bias. 

Joint Statement on Risk Assessment Instruments from the American Council of Chief Defenders, Gideon’s Promise, the National Association for Public Defense, the National Association of Criminal Defense Lawyers, and the National Legal Aid & Defender Association. March 2019

The ABA Model Code of Judicial Conduct (CJC), Rule 2.11: Disqualification, provides: “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned. …”¹