Recently in Evidence Category
Well, here is what seems to be a pretty good example. Suppose a jury is told that the perpetrator's DNA matches the defendant's, and that the chance of that being a coincidence is 1 in 43,000,000,000,000,000,000,000. Later, an error is discovered in the database from which that figure was generated. It should have been 1 in 40,000,000,000,000,000,000,000. Does that matter? Either one equals waaaaaaay less than reasonable doubt.
If I understand this AP article by Michael Graczyk correctly, that is the claim that caused the Texas Court of Criminal Appeals to stay the execution of Clifton Lamar Williams for the brutal beating, stabbing, and arson death of Cecelia Schneider, 93, of Tyler, Texas.
Still, to the extent there is any confusion on an issue affecting the actual guilt determination, it is right to be super careful. On the other hand, we should have a rule against last-minute stays on issues that have nothing to do with guilt, say no less than 30 days before the execution.
I was taken aback when I read Justice Breyer's reference to Prof. John Donohue's law review article about racial bias in Connecticut's administration of its capital sentencing scheme. That a United States Supreme Court Justice would quote an article about a study that was thoroughly rejected in litigation is astonishing. This is especially so in this instance, when the proponents of Donohue's study kept his written report from the habeas court to also block admission, on hearsay grounds, of the devastating and unqualified evisceration of his study by the state's expert.
I'm equally concerned that Justice Breyer cited the report without questioning the validity of Donohue's "egregiousness" scale. After all, Donohue just made up the scale and never tested it objectively to determine whether it indicated anything meaningful or relevant about Connecticut's capital sentencing scheme. Thereafter, when his egregiousness results--compiled by law students from scrubbed summaries--disagreed with the results dictated by the statutory criteria for imposing a death sentence--as evaluated by experienced prosecutors, judges, and juries based on all the evidence--Donohue determined that the latter were arbitrary.
Today in Ohio v. Clark, a six-Justice majority of the Supreme Court took a big step toward making Crawford a narrow rule, with a seventh Justice holding out for a position that is narrower still (I think). Justice Scalia is apoplectic, but I think his criticisms are off base.
Update: CJLF has this press release.
There are multiple issues here. Is it admissible? Is it persuasive? Will it backfire? Can the prosecution say out loud the obvious inference? What's with that last line?
Prejean ... said she has met five times with Tsarnaev since early March. She said he told her how he felt about the suffering he caused to the bombing's victims.
"He said it emphatically," Prejean said. "He said no one deserves to suffer like they did."
She added, "I had every reason to think he was taking it in and he was genuinely sorry for what he did."
Jurors are expected to get the case on Wednesday to decide whether Tsarnaev will be executed or spend his life in prison without the possibility of parole.
Prejean said Tsarnaev "kind of lowered his eyes" when he spoke about the victims. His "face registered" what he was saying. She interpreted his remorseful sentiment "as absolutely sincere," she said.
Prejean said she talked with Tsarnaev about both their faiths, his Islam and her Catholicism.
"I talked about how in the Catholic Church we have become more and more opposed to the death penalty," she said.
"Evidence is relevant if: (a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and (b) the fact is of consequence in determining the action." Federal Rule of Evidence 401. "Irrelevant evidence is not admissible." FRE 402.
What are the facts of consequence in the penalty phase of a federal capital cases? They are the mitigating and aggravating factors listed in subdivisions (a) and (c), respectively, of 18 U.S.C. §3592. Obviously the defense does not want to introduce evidence in aggravation, so that leaves the mitigating factors in subdivision (a).
The relevant mitigating factors are impaired capacity, duress, minor participation, equally culpable defendants getting off with less, no prior criminal record, mental disturbance, victim's consent, and the catchall factor: "Other factors in the defendant's background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence."
Any evidence that is not about this crime or this defendant is irrelevant and therefore inadmissible.
What does Helen Prejean know that is relevant? Nothing, I strongly suspect. If not, she should not testify.
In White v. Woodall, decided one year ago today, the Supreme Court reviewed its precedent in Mitchell v. United States, 526 U.S. 314, 328 (1999):
"The Government retains," we said, "the burden of proving facts relevant to the crime . . . and cannot enlist the defendant in this process at the expense of the self-incrimination privilege." Id., at 330 (emphasis added). And Mitchell included an express reservation of direct relevance here: "Whether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of the downward adjustment provided in §3E1.1 of the United States Sentencing Guidelines (1998), is a separate question. It is not before us, and we express no view on it." Ibid.A footnote at that point notes a division in the Courts of Appeals. No First Circuit cases are noted there or in the certiorari petition.
Woodall did not resolve the question. It was a state case being reviewed on federal habeas corpus, and the unsettledness of the underlying question was enough to require the federal court to respect the state court's decision under the controlling act of Congress. CJLF's brief in that case is here. My post on the case is here.
Prosecutors would be well advised to avoid mentioning the defendant's silence until the issue is resolved. It isn't worth risking a reversal. Long-term, though, I think the Griffin no-comment rule should be limited to the extent expressly held in Supreme Court precedent and not extended by a fraction of an inch. I wouldn't mind seeing it overruled, but I don't think that is a realistic possibility.
The microphone failures tend to make the news most often. Remember President Obama telling the puppet President of Russia that he would have "more flexibility" in his second term, when he didn't have to worry about those pesky voters any more?
California millionaire Robert Durst, long a suspect in two murders, was confronted with tough questioning during an interview for a documentary after foolishly ignoring his lawyer's advice not to give the interview. Melanie Gracie West has this story in the WSJ.
In Sunday's episode, after filming had stopped, but before Mr. Durst's microphone had been turned off, he was recorded saying in private: "What the hell did I do? Killed them all, of course."The WSJ story begins,
Robert A. Durst was charged with first-degree murder on Monday as legal experts debated whether the alleged confession of the real-estate millionaire and TV documentary subject would be admissible in court.Really? What debate? What grounds for exclusion?
Some of the Justices have been uncomfortable with that ever since, and that discomfort showed in today's argument over the statement of an abused child to his teacher.
So far, Justice Thomas has been alone in his view that the Confrontation Clause applies narrowly to the kinds of practices it was specifically aimed at, such as the use of depositions in lieu of live testimony. In this view, the admissibility of most hearsay statements would be questions of state evidence law, not a federal constitutional mandate.
I think Justice Thomas has it right, and my brief takes a historical view consistent with his thesis. There was no discussion of this view in today's argument, but the Justices seem uncomfortable with the status quo, and CJLF's arguments sometimes appear in the opinions without having been featured at oral argument. We'll see.
The Court also released its orders list from last Friday's conference. It took up a case on the interpretation of the federal extortion law. The Question Presented follows the break.
The fingerprint examiners correctly matched every single print in the tests, with only 3 percent of the inaccurate matches caught by a second examiner, which is part of normal protocol at crime labs across the country.That's rather awkward phrasing. Presumably it means that 3 percent of the matches found by the first examiner were not correct but all of the errors were found and corrected on the second examination.
A new study suggests that the microbes present on pubic hair -- which vary from person to person -- could be used as evidence in sexual assault cases. This particular research is in its early stages, so you probably won't hear about genital microbes in a courtroom anytime soon. But the study is just one example of the effort to turn the incredible diversity of the bacteria that live on human beings into a high-tech forensic toolkit.* * *The researchers, led by Silvana Tridico from Murdoch University, took scalp and pubic hair samples from seven individuals (three male and four female, with one co-habitating couple in the mix). While hair from the head had around 50 kinds of bacteria a pop, and seemed to be influenced by the environment, pubic hairs had over 70 kinds of bacteria each, which were highly individualized. That's in line with previous studies on the vaginal microbiome, which has shown an unexpected diversity distinguishing one individual from another.
"The advent of DNA profiling has resulted in an increase of sexual offenders using condoms, which they take away, post-assault," Tridico said in a statement. "The implication of this present study is that the transfer of bacteria between victim and offender, in rape cases, may provide a new way of linking the offender to the victim, in instances in which no human DNA is transferred."
I have the government's motion but not al Fawwaz's motion. That is probably one of the many sealed documents not available to the public. The government's motion says,
The Abbottabad Letters--including two authored by the defendant, himself--reflect his continued active participation in al Qaeda following eight years of incarceration in Iran. The Letters constitute powerful, direct, proof of al Qaeda's conspiracies to bomb and kill Americans, as well as Anas al Liby's knowing and intentional participation in them. Indeed, one can scarcely conceive of more powerful uncharged-acts proof than recent correspondence among bin Laden, his chief deputy, and the defendant about the defendant's continued participation in al Qaeda--including a 2010 letter from the defendant to bin Laden in which the defendant "ask[s] God to reunite me with you soon under the banner of Islam and the Islamic state and the banner of jihad." That is particularly true where, as here, the defendant's state of mind will be a central issue in dispute.The legal argument relates to admissibility of "other acts" evidence under Federal Rule of Evidence 404(b). The background paragraph begins with this statement:
On May 2, 2011, U.S. forces conducted an operation that resulted in the death of al Qaeda leader, and (formerly) charged co-defendant, Usama bin Laden.I like that "(formerly)." This is technically known in the trade as "mootness."