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This morning, the U.S. Supreme Court decided three consolidated cases involving the implied consent laws that all 50 states utilize in their efforts to combat the serious problem of drunk driving.  The implied consent laws imply a lawfully arrested motorist's consent to chemical testing as a matter of law and the state uses the test results as probative evidence of intoxication in a subsequent DUI prosecution.  Some motorists, usually repeat offenders, refuse requests for testing because they know that the Blood Alcohol Concentration ("BAC") results would impose harsher penalties than that of simply refusing a test.  The standard legal consequence in most states for test refusal is the suspension or revocation of a motorist's driver's license.  A refusal can also be admitted as evidence of intoxication in a DUI prosecution.  Based on recidivist drunk driver statistics, it does not matter if they have a driver's license or not.  The suspension or revocation of a driver's license does nothing to stop a person from drinking and driving if that person chooses to get into a car and drive while intoxicated.

Thirteen states gave some teeth to their implied consent laws and made it a crime to refuse testing.


The U.S. Supreme Court has reversed a decision of the Utah Supreme Court suppressing evidence from a stop conducted in good faith by a police officer.  Utah v. Strieff, No. 14-1373, was decided 5-3.

On a quick scan, it does not appear to be the sweeping decision I was hoping for, but a win's a win.

Update:  A follow-up post is here.  CJLF's press release is here.
Sometimes dead men do tell tales.

The Sixth Amendment guarantees the defendant in a criminal case "the right ... to be confronted with the witnesses against him ...."  What if the witness is dead?  That generally means his statements are inadmissible in evidence, but there are a few exceptions. 

In Giles v. California (2008), the U.S. Supreme Court disallowed an overly broad rule of "forfeiture by wrongdoing," where a finding by the judge that the defendant had committed the murder for which he was on trial was enough, by itself, to allow the statement of the victim.  However, the high court acknowledged an exception going back to 1666 for statements of a witness whom the defendant has wrongfully made unavailable for the purpose of preventing his testimony.  That is, the prosecution must make "a showing that the defendant intended to prevent a witness from testifying."

Yesterday, Adam Wagner had this story in the Wilmington, NC Star-News:

Miranda at 50

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Fifty years ago today, the United States Supreme Court handed down the famous or infamous (depending on your point of view) decision in Miranda v. Arizona.  The immediate result of the decision in the lead case was that the conviction of a rapist was vacated and the case sent back for retrial -- meaning the victim had to endure testimony and cross-examination again -- even though Miranda's confession had been examined and held to be voluntary under the totality of the circumstances.  Fortunately, Miranda was convicted on retrial without the confession.  Unfortunately, he was paroled after serving only a fraction of his sentence.  He was killed in a bar fight in Phoenix in 1976.

Justice White, in dissent, noted the obvious truth.  "The proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment." 

In Dickerson v. United States (2000), the Supreme Court made no attempt to defend Miranda's indefensible fiat as an original matter.  "Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now."

By the decision's own terms, though, the regime it lays down is not the last word:

Stool Pigeon...

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Peter Holley reports for the Washington Post:

A possible murder witness is talking.

The question is whether anyone should listen.

His name is Bud, and he's an African gray parrot in Ensley Township, Mich., with a filthy mouth, according to NBC affiliate WOOD-TV.

His latest phrase - the one he won't stop shouting at the top of his lungs mimicking his owner's voice - is a chilling one: "Don't f--ing shoot!"

The bird's antics might be laughed off, but it were not for the fact that Bud's owner, 45-year-old Martin Duram, was fatally shot at his home in May 2015, according to ABC affiliate WABC.  His body was found near his wife, Glenna, who had suffered a gunshot wound to her head but is alive.  Although police initially assumed Glenna Duram was a victim of the shooting, police reports obtained by WOOD-TV reveal that she is now a suspect in the slaying.

Law and Order writers...are you reading this???

Justice for Jacob

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A couple leaves their 1-year-old son, Jacob, with a family friend for a couple of hours while they go out on a date.  Upon their return, they find their family friend asleep on the couch and Jacob crying uncontrollably.  The next morning, the parents notice that Jacob has a black eye, scratches, bruises on his arm and back, plus a very large and visible hand-shaped bruise on the side of his face.  (How they didn't notice these injuries upon their return the night before is beyond me....)  Multiple doctors and a police detective tell the parents that the amount of force Jacob sustained could have killed him.  Several days later, the family "friend" admitted to grabbing and smacking Jacob across the face.
One of my least favorite U.S. Supreme Court precedents is Mapp v. Ohio (1961).  That is the case that imposed on the states the rule previously followed by federal courts that evidence obtained in violation of the Fourth Amendment (with "violation" determined long after the fact and frequently unknowable to the police at the time of the search or seizure) must be excluded from a criminal trial.

In my view, the criminal trial should be all about a reliable determination of whether the defendant did it.  All reliable evidence should be considered.  If you want to put the police on trial for what they did, that should be a separate case.

One of the objections to eliminating the Fourth Amendment exclusionary rule and relying on civil remedies is that the doctrine of qualified immunity prevents the resolution of previously undetermined questions.  That is, if the searchee sues the police officer, the officer is entitled to immunity as long as what he did was not clearly illegal at the time of the search.  So how can you ever get to a judicial determination to make the law clear for future cases?

One answer is that if the action in question is a regular practice of the police department, you sue the city, not the cop, and there is no immunity.  Today's decision of the U.S. Court of Appeals for the Ninth Circuit in Lowry v. City of San Diego, No. 13-56141, illustrates the point.
Phil Helsel reports for NBC:

A former death-row inmate has been charged with keeping a woman captive and sexually assaulting her for months in Colorado, officials said Thursday.

"She's been through hell and back," Mesa County Sheriff's Office Sgt. Henry Stoffel told NBC station KUSA.
Claude Lee Wilkerson, 61, was arrested in February and charged Monday with 10 counts in all, including first-degree kidnapping, false imprisonment, sexual assault and harboring a minor, according to court documents.
But Wilkerson was once sentenced to death for a prior murder.  He never should have hurt anyone again.  How did he get off?  His confession was thrown out, and his conviction was reversed, not because the confession was involuntary in violation of the real Fifth Amendment actually in the Constitution, but only because its taking did not comply with the Miranda rule invented by the Supreme Court out of whole cloth in 1966.

KUSA has this video report on the overturning of the prior conviction.

The rules of law that set criminals free despite solid evidence of guilt tend to be taught in abstract, antiseptic terms in law school.  Most law students go along with their pro-defendant professors and endorse these rules.  I have known students and lawyers to react in horror at the very idea that anyone would challenge Miranda v. Arizona and Mapp v. Ohio.  Many are completely incapable of grasping the distinction between these entirely court-created doctrines and the actual Bill of Rights.

Yet these rules have real, human costs.  They have costs when victims and their families see perpetrators walk.  They have even greater costs when those perpetrators commit new crimes.

A Fact-Bound Summary Reversal

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The U.S. Supreme Court summarily reversed a Louisiana state court's denial of habeas corpus relief to Michael Wearry, an inmate on that state's death row.

Generally, if one has prevailed in a lower court and wants the U.S. Supreme Court to deny review, arguing that the case is "fact-bound" is a good bet.  The Supreme Court's "reason for being" is to settle broad questions of law on which other courts disagree, not to police case-specific application of settled law to particular fact patterns.

In this case, Wearry claims he actually didn't do it, and he is one of the rare death row inmates with a "colorable claim" to that effect, to use Judge Friendly's famous term.  The specific constitutional violation claimed is that the prosecution failed to disclose exculpatory evidence.  The "application of law to fact" question is whether that evidence is "material," defined "new evidence [that] is sufficient to 'undermine confidence' in the verdict."  (See p. 7 of the slip opinion.)

Justice Alito, joined by Justice Thomas, finds summary disposition "highly inappropriate" and calls for the case to be given full briefing and argument instead.

This is the kind of case that should not have been capital in the first place.  In my opinion, trial prosecutors should not seek the death penalty in any case where the evidence of identity of the perpetrator is such that a jury would have any difficulty at all finding that the proof is beyond a reasonable doubt.  More discretion here would avoid a host of problems, and most prosecutors' offices do, in fact, screen out cases on that basis.

The New Data on Eyewitness Testimony

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The current issue of the Monitor has a short article on some new data regarding eyewitness testimony.  For many years, various psychological experts have insisted that sequential lineups are vastly superior to simultaneous lineups.  Now, perhaps, the reverse is true:

By some estimates, around a third of law enforcement agencies in the United States now use the sequential format, says John Wixted, PhD, a psychologist at the University of California, San Diego. But, he says, that switch might have been a mistake.

Wixted is one of several scientists, along with Clark and Scott Gronlund, PhD, a psychologist at the University of Oklahoma, who have championed a statistical method called receiver operating characteristic (ROC) analysis, a method widely used in other fields to measure the accuracy of diagnostic systems.

Using that analysis, sequential lineups don't appear to be beneficial -- and might lead to slightly more misidentifications than simultaneous lineups, Gronlund and Wixted have reported (Current Directions in Psychological Science, 2014). The problem, they say, is that previous analytical methods confounded accuracy with a witness's willingness to choose a suspect. In other words, sequential lineups seem to make people less likely to make a choice at all. But when they do pick a suspect, they might be at greater risk of making the wrong choice. "It turns out sequential lineups are inferior," says Wixted.

And what about eyewitness confidence?

For many years, researchers didn't think an eyewitness's confidence revealed much about his or her accuracy in identifying a suspect, says Wixted. A confident eyewitness could be just as likely to get the ID right -- or wrong -- as a less confident witness. But in the last two decades, numerous analyses have converged on the fact that eyewitness confidence is actually a strong indicator of accuracy.

Digital Forensic Examination

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The current FBI Law Enforcement Bulletin has an article that reads like something you would see on a television "CSI" show and dismiss as utterly unrealistic.  But it is real. 

John McHenry and Michael Gorn report on a child pornography investigation from Sarasota, Florida.  High resolution images "included adult hands and pornographic images of infants."  The images were high enough resolution to get fingerprints off of them, nailing the perpetrator.
Yesterday's big criminal law news was the U.S. Supreme Court's decision in Montgomery v. Louisiana.  See my prior post and today's News Scan.  However, the decision in Musacchio v. United States, No. 14-1095, is also worth noting.

A conviction can be reversed on appeal if the evidence at trial is clearly not sufficient to establish the elements of the crime.  In Jackson v. Virginia (1979), the Supreme Court made this a federal constitutional rule.  Suppose (1) the elements of a crime are A, B, and C; (2) the judge erroneously instructs the jury they must find A, B, C, and D; (3) on appeal the appellate court finds plenty of evidence to support elements A, B, and C but none on D.  Is that reversible Jackson error?  No.  Jackson concerns only what the elements the jury should have been instructed on, not what they were instructed on.

If the defendant didn't raise a statute of limitations defense at trial, can he raise it on appeal?  Not unless Congress has made the time limit jurisdictional, which it rarely does and did not do for the crime involved in this case.  How about the plain error rule?  No.  If the defendant does not bring it up, the failure of the trial court judge to do so sua sponte is not error, plain or otherwise.

That's the short version.  For a longer version, see Rory Little's post at SCOTUSblog.

Simultaneous v. Sequential Lineups

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One thing we know from studying studies is that you should not make radical changes based on a single study but rather wait for the result to be confirmed by other studies.  You don't know how "robust" a result is until an issue has been studied multiple ways by multiple researchers.  How many times would you have stopped and restarted drinking coffee if you went with every study that came along?

A while back there was some research that indicated that sequential lineups -- where the witness looks at suspects or pictures one at a time -- were far better than simultaneous ones where the witness looks at a group at once.  There was a rush to codify this preference into rigid requirements.  Well, that may not be right.  Bradley Fikes reports in the San Diego Union Tribune on a study indicating, among other things "simultaneous lineups were, if anything, diagnostically superior to sequential lineups. These results suggest that recent reforms in the legal system, which were based on the results of older research, may need to be reevaluated."

Another important finding is that the witness's confidence at the first observation is an important indication of accuracy, much more so than the witness's demeanor at trial that juries must usually go on.
The North Carolina Supreme Court has sent back to the trial court the cases on that state's ill-conceived, misnamed, and since repealed "Racial Justice Act."  The purpose of that act is to defeat rather than promote justice, and it allows murderers to overturn their sentences based on the kind of statistics-based arguments rejected by the U.S. Supreme Court in McCleskey v. Kemp.  (See my law review article for background on the racial statistics controversy.)

Jacob Gershman has this article in the WSJ.

The state supreme court vacated the decisions in favor of the murderers, but it did so on the narrow ground that the trial judge did not allow the prosecution sufficient time to gather evidence to rebut a large study submitted to support the claim.  That means the case goes on. 

Teens, Confessions, and Culpability

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Maura Dolan has this article in the L.A. Times about the controversies regarding police questioning of teenagers and, in a few cases, children about serious crimes.  Some people are arguing for bright-line rules to the effect that police can never question young people below some arbitrary cut-off age without a lawyer present, which for all practical purposes means they can't question them at all.  As Justice Robert Jackson noted long ago, "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances."*

A related issue is the culpability of minors for crimes.  The story says,

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said he would like Miranda rights to be eliminated and all interrogations videotaped. He called the brain research about adolescents' legal culpability "a bunch of hooey."
Not quite.  There is research about adolescents' brain development and mental capacity, and then there are extrapolations from that research about adolescents' legal culpability.  It is the latter that I said are "a bunch of hooey."  For example, there is no doubt that a process of central nervous system development called myelination is a work in progress in the late teen years.  However, there is a great deal of doubt whether this fact and other products of research support the kinds of sweeping conclusions in cases such as Graham v. Florida and Miller v. Alabama.

On the Miranda point, the Supreme Court in Miranda expressly said that the procedures it laid out were not the last word, and it would be competent for legislatures to substitute other procedures to protect the right against compelled self-incrimination.  Video recording of interrogations is an alternative that should be considered.

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