Recently in Evidence Category

Can DNA Testing Be Too Sensitive?

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Forensic DNA testing has gotten better and better over the years, giving us definitive answers from samples that previously would have been too small or too degraded.

Generally, that has been a good thing.  For example, the "wrongly executed" Roger Coleman and the "exonerated" Timothy Hennis were both proved guilty by conclusive DNA matches after the technology improved.

However, DNA testing is now getting so sensitive that it can pick up a person's DNA from a place he has never been or an object he has never touched by transfer from someone else.  Ben Knight has this article at Yahoo News.

The problem, of course, is not in the science but in the interpretation.  The answer to the rhetorical question of the caption is no.  DNA testing cannot be too sensitive, but the results of ultrasensitive tests must be interpreted with great caution.

Wiping a Server

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Following up on Bill's post, it really is too bad that C&C doesn't have its own server, because I would very much like to use one of these.  We don't do ads on this blog, but I will tell you where to get this one.

The statute Bill referred to is the one involved in the Supreme Court's "fish overboard" case of last term, Yates v. United States.  See this post.

Yates limited the reach of the statute regarding "tangible objects" to those which "record or preserve information," not including fish, but that won't help Mrs. Clinton.  Emails and the servers that hold them are squarely within the statute as interpreted by Yates.

Playing dumb about what it means to wipe a server is about as convincing as the immigrant who speaks fluent English until the questioning gets tough and then suddenly can't understand a word.

Fingerprint Match Admissibility

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The California Court of Appeal, Third District, today rejected an attack on the reliability and admissibility of fingerprint match evidence in People v. Rivas, C027621.

Harmless Error

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What does it mean that an error is harmless?

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.

Justice Breyer's Dubious Authorities

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The following is a guest post by Connecticut Senior Assistant State's Attorney Harry Weller, commenting on Justice Breyer's dissenting opinion in Glossip v. Gross on Monday. The Connecticut Superior Court decision referred to is In re Death Penalty Disparity Claims (Oct. 11, 2013), previously noted in this post.   As always, opinions expressed by guest bloggers are their own.

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.
Eleven years ago, the US Supreme Court upended its jurisprudence of the Confrontation Clause in Crawford v. Washington.  Because the test for the statements to be excluded under that clause was so different from prior law and because the Court left so much to be defined, no one was really sure whether the new rule would be broader or narrower than the old one once the dust settled.  Would federal constitutional confrontation challenges (as distinguished from state-law evidentiary challenges under the hearsay rule) apply to more out-of-court statements or fewer?

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.
The US Supreme Court has unanimously reversed the Ohio Supreme Court's decision to exclude from evidence a teacher's testimony about the statements made by an abused child.  I will update this post after I have had time to read the decision.  The fact that it is a solid majority, with six Justices joining the opinion without qualification, should bring some clarity to a confused area of law.

Update:  CJLF has this press release.
From the Answers to Questions Practically No One Is Asking File ... Did a statute enacted almost 20 years ago abrogate a Supreme Court decision rendered almost 40 years ago with hardly anyone noticing, even though this involves a very heavily litigated area of law?  Nope, even the Ninth Circuit won't buy that.

Remorse by Proxy?

Following up further on my post Friday and Bill's post earlier today, Jeffrey MacDonald of USA Today gives us this description of Helen Prejean's testimony for terrorist/multiple murderer Dzhokhar Tsarnaev:

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.

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?
The defense wants to call the notorious Sister Helen Prejean to testify in the trial of the Boston Marathon Bomber.  I can't fathom that she can offer any relevant evidence.

"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.

Tsarnaev, Silence, and Remorse

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The prosecution has rested in the penalty phase of the trial of Boston Marathon bomber Dzhokhar Tsarnaev.  If he does not testify in the penalty phase, as I expect he will not, can that silence be used against him as indicating a lack of remorse?  I don't know.

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.

Hot Mic

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It's amazing how people continue to get themselves in trouble by failure to obey elementary safety rules.  One such rule is that firearms, microphones, and naked babies should be handled as if loaded at all times.

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?
Today the Supreme Court heard argument in Ohio v. Clark.  The Confrontation Clause of the Sixth Amendment limits the use of out-of-court statements of people who do not testify as witnesses in the criminal trial, but exactly where that line is drawn has been a problem for a long time.  From the 1980 decision in Ohio v. Roberts until the 2004 decision in Crawford v. Washington, the focus was on the reliability of the statement.  Crawford threw that overboard and asked if a statement was "testimonial."  Under this rule, the reliability of the statement is at best irrelevant to whether it is excluded by the Confrontation Clause, and often the rule operates perversely, letting less reliable statements in while excluding more reliable ones.

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.

US Supreme Court Today

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The U.S. Supreme Court is in session and is hearing oral argument in Ohio v. Clark, regarding whether the Confrontation Clause allows a teacher to testify as to what a preschool child said about who abused him.  CJLF's brief is here.  My post at the time of filing is here.

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.

Fingerprint Error Rate: Zero

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Natalia Zea reports for CBS Miami on a study of fingerprint match reliability.

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.

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