What’s Really Making Us Uncomfortable—the Use of AI in Evaluating the Likelihood of Recidivism, or the Policy of Sentencing Based on the Likelihood of Recidivism?

By Kimberly G. Koziara

In his recent New York Review article, “Sentenced by Algorithm,” a review of former SDNY judge Katherine Forrest’s book, “When Machines Can be Judge, Jury and Executioner: Justice in the Age of Artificial Intelligence,” current SDNY Judge Jed Rakoff evaluates the many shortcomings of existing AI products intended to predict recidivism rates of past criminal offenders. These products are designed to guide judges in determining whether a defendant’s sentence should be extended on a theory of “incapacitation”—essentially, to protect the general public from the potentiality that the defendant will continue his pattern of criminality in the future. As Rakoff succinctly explains, the current products available have unacceptably high error rates, mostly leaning towards over-predicting future criminality. Moreover, their “black box” design raises concerns regarding the assumptions underlying the algorithm, and the defendant’s ability to effectively challenge the algorithm’s output. Continue reading “What’s Really Making Us Uncomfortable—the Use of AI in Evaluating the Likelihood of Recidivism, or the Policy of Sentencing Based on the Likelihood of Recidivism?”

Sometimes, You CAN Always Get What You Want: Counseling Clients On Taking Breaks Before a Federal Grand Jury

Sooner or later, nearly every white collar defense attorney will represent a witness subpoenaed to testify before a federal grand jury.  It is well settled in most circuits that federal grand jury witnesses do not have a right to have defense counsel present during the grand jury proceedings – but how frequently may witnesses request a break in the grand jury proceedings to leave the room to consult with their lawyers about the questions being posed?

Quite frequently, it turns out.   Many federal courts allow non-immunized grand jury witnesses to consult with their lawyers after each question posedSee U.S. v. Soto, 574 F.Supp. 986, 990 (D. Conn. 1983).  Courts recognize that witnesses reasonably wish to consult with counsel to avoid, for example, providing testimony which may tend to incriminate them.  While some courts may limit the frequency of consultation to every two or three questions, particularly if the breaks become too lengthy or disruptive, courts will typically honor requests for regular consultation unless the request appears “frivolous” or “with intent to frustrate the proceedings.”  See In re Tierney, 465 F.2d 806, 810 (5th Cir. 1972). Continue reading “Sometimes, You CAN Always Get What You Want: Counseling Clients On Taking Breaks Before a Federal Grand Jury”