Law Enforcement Access to Records, State and Local Bar Regulation, and Sentencing Alternatives Among Topics for Debate by ABA House of Delegates
CHICAGO, Jan. 24, 2012—The American Bar Association will address legal policy issues ranging from law enforcement access to third-party records, to the regulation by courts or legislative bodies of state and local bar associations, to trial procedure when the association’s 560-member House of Delegates meets Feb. 6 in the Sheraton New Orleans, in the Grand Ballroom, 5th floor. The association’s policy-making body will meet during its Midyear Meeting, taking place in New Orleans Feb. 1-6.
It is a difficult balancing act between the need for law enforcement to have access to records by institutional third parties, and the privacy interests and implications on social participation. There is currently no structure through which legislatures, courts acting in their supervisory capacity and agencies to make the difficult decisions as to what records should be protected and the scope of such protection. Resolution 101A calls for the adoption of the black letter ABA Criminal Justice Standards on Law Enforcement Access to Third Party Records, which provides such a framework through which to do so.
Recent attempts by legislatures have sought to regulate the ability of state and local bar associations to function independently and freely represent the views of their members. In Puerto Rico, for example, a political faction that opposed the bar association’s ideological positions on certain issues, prevailed upon the Puerto Rico legislature to enact statutes that dissolved the integrated nature of the organized bar. Recommendation 10A, brought to the House by the Bar Association of Puerto Rico, urges the highest courts or legislative bodies of states and territories charged with the administration of justice, to respect the organized bar’s ability and right to function independently.
For two decades, rehabilitative sentencing alternatives, such as drug and domestic violence courts, have made positive inroads in reducing recidivism and costs associated with incarceration. Noncitizens, however, cannot avail themselves of the benefits of therapeutic courts, which results in an inequity with a high personal cost to the individual, his or her family and community, and society as a whole. Recommendation 101F would lend the ABA’s support for legislation, policies and practices that allow equal and uniform access to therapeutic courts and problem-solving sentencing alternatives, such as drug treatment and anger management counseling, regardless of the custody or detention status of the individual.
A 2009 study by the National Academy of Sciences raised a host of issues regarding the presentation of expert testimony at trial. According to the study, changes that need to be implemented are ones taking place not only in the laboratory, but also in the presentation and assessment of such evidence by attorneys and judges. Resolution 101C urges judges to consider a number of factors in weighing the use of evidence, such as whether the expert testimony of uniqueness is based on valid scientific research, whether experts present testimony that is accurate and fairly conveys the significance of their conclusions, and whether to include jury instructions with specific information so that the panel can fairly assess the reliability and weight of such testimony.
A groundbreaking framework, adopted by the United Nations Human Rights Council, has emerged to address the responsibilities of transnational corporations and other business enterprises with respect to human rights. The outline rests on three pillars: the state’s duty to protect the human rights of its people; the corporate responsibility to protect human rights; and the need for more effective access to remedies. Recommendation 109 calls for ABA endorsement of the framework, and urges governments and the legal community to integrate into their respective operations and practices the United Nations Framework and Guiding Principles; as well as the “human rights” provisions of the OECD Guidelines for Multinational Enterprises.
Additional proposals include:
- One (101D) that urges judges and lawyers to consider potential jurors’ understanding of scientific principles relative to forensic science, as well as their preconceptions or bias with respect to such principles.
- Recommendation 101G, which urges courts to adopt jury instructions that are in language understandable by jurors—untrained in law—in the penalty phase of trials in which the death penalty may be imposed, and that such instructions be provided in written form.
- A resolution, 102B, calling for the ABA to approve the Uniform Electronic Legal Material Act, promulgated by the National Conference of Commissioners on Uniform State Laws in 2011, as appropriate for states wanting to adopt specific substantive law on the subject. The act establishes an outcomes-based, technology-neutral framework for providing online legal material with the same level of trustworthiness traditionally provided by publication in a law book.
- One (104) that provides a model set of procedures and factors for courts to consider when deciding issues of relocation of children following divorce or determination, including notice to other parents, procedures for objection and standards for the court to apply.
- A pair of resolutions (106A and 106B) that ask the House of Delegates to concur with the association’s Council of the Section of Legal Education and Admissions to the Bar making amendments to Standards 510 and 512, respectively, concerning approval of law schools.
- Resolution 108, which urges state and territorial bar admission authorities to adopt rules and procedures that accommodate the unique needs of military spouse attorneys who move frequently in support of the nation’s defenses.
- Recommendation 111, which urges entities that administer a law school admission test to provide appropriate accommodations for a test taker with a disability to best ensure the exam reflects what the test is designed to measure and not the test taker’s disability.
- One (113) adopting the ABA Standards for Language Access in Courts, and urging federal and state legislative and executive branches to provide adequate funding to courts to fully implement language access services.
- A recommendation (300) to adopt of the Guidelines for Conduct of Experts Retained by Lawyers, and urging counsel to consider using the guidelines in retaining experts for client matters.
- Resolution 302, which supports the principle that “private” lawyers representing governmental entities are entitled to qualified immunity when they are acting “under color of state law.” The crux of the resolution centers around Filarsky v. Delia, currently being considered by the U.S. Supreme Court.
These proposals will not constitute ABA policy unless adopted by the House. They are advocated by state and local bar associations, specialty legal groups within the ABA or affiliated with the association, and individual members, and reflect the broad range of issues confronting society. Other measures may be filed for House consideration, while some on the agenda could be withdrawn or revised leading up to or during the House meeting.
During the Midyear Meeting, accredited journalists should register on-site at the Sheraton New Orleans, 2nd Floor, beginning Feb. 1. A press room for accredited reporters will be provided at the Armstrong Ballroom, 8th Floor, of the Sheraton New Orleans, starting at 9 a.m. on Feb. 2. The room will be open daily thereafter from 8:30 a.m. to 6 p.m., and will close one hour after the adjournment of the House of Delegates on Feb. 6.
Online registration for news reporters is easier than ever. Credential guidelines are at http://www.abanow.org/reporter-resources/media-credentials/.
With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.
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Note to reporters: There will not be Wi-Fi connectivity in the House of Delegates session.