Recently in Evidence Category

On this video, Walter Mossberg of the WSJ reviews a Skype-based device called telyHD.  With one of these and a big-screen TV on each end, people can have video chats in high definition with a full-room view, rather than the small, low-res, tightly focused video chats that have been typical.  Mossberg's written review is here, but it may be limited to WSJ subscribers.

Mossberg emphasizes home use, but it seems to me this device would be useful for televised testimony in cases where such testimony is permissible.  A witness could testify from another country or a hospital bed in a more realistic way at less cost than with earlier technology.  The device costs $250, and the calls cost nothing.

Personally, I think minor witnesses, at least, should be allowed to testify this way simply to save money and reduce inconvenience to the witness.  If the defendant demands personal testimony by the lab tech under Melendez-Diaz just to gum up the works, there could be a telyHD in the lab building.  Instead of wasting all day at the courthouse, the tech could work until it was time to testify, do his 15 minutes testifying about the lab test that actually involves no real controversy, and then get back to work.  Whether two-way television satisfies the Confrontation Clause remains controversial, of course, but I think the Supreme Court will eventually come around to the conclusion it does (over Justice Scalia's vigorous dissent, if he's still there).  See 535 U.S. 1159-1169.

In 1965, the great Judge Henry Friendly warned against the Warren Court's drive toward The Bill of Rights as a Code of Criminal Procedure in an article with that title, 53 Cal. L. Rev. 929.  "[I]n applying the Bill of Rights to the states, the Supreme Court should not regard these declarations of fundamental principles as if they were a detailed code of criminal procedure, allowing no room whatever for reasonable difference of judgment or play in the joints." 

Friendly's main point was that state legislatures and other rule-making authorities should be allowed to make the judgment calls outside the few, simple rules actually in the Bill of Rights.  The Court did not listen, and today there are few questions of criminal procedure where the defense lawyer cannot "make a federal case out of it."  Indeed, there are seminars telling lawyers to do just that, so that they can get a second bite at the apple in federal habeas if the state court rejects the claim.

How about evidence? Certainly the Bill of Rights does have some evidentiary provisions, including the privilege against self-incrimination, the right to confront adverse witnesses, and compulsory process for defense witnesses.  But how about the bulk of the evidence code, the underlying purpose of which is simply to have trials decided on reliable evidence subject to adversarial testing.  Should the Supreme Court declare a general constitutional right to be tried on only reliable evidence and thereby make itself the overseer of this area of law for the entire nation?

The Court looked at that prospect in Perry v. New Hampshire, and today it beat a hasty retreat.

The US Supreme Court has decided Perry v. New Hampshire, described in prior posts here and here.  The 8-1 opinion by Justice Ginsburg appears from the syllabus to be in accord with CJLF's brief.  Justice Sotomayor dissents alone.  I'll have some more observations shortly.  Follow-up post is here.

The Big Easy is really good at partying, but apparently not so good at disclosing exculpatory information to the defendant, as required by Brady v. Maryland, 373 U. S. 83 (1963). Last term, we had Connick v. Thompson, a civil case about failure to disclose a crime lab report.  Today we have Smith v. Cain, about failure to disclose prior inconsistent statements by the only witness who identified the defendant at trial.

This is about as pure a Brady claim as they come.  As CJ Roberts explains, the jury might have believed the witness's trial statements rather than the prior statements, but "might" is not the test.

The State and the dissent advance various reasons why the jury might have discounted Boatner's undisclosed statements. They stress, for example, that Boatner made other remarks on the night of the murder indicating that he could identify the first gunman to enter the house, but not the others. That merely leaves us to speculate about which of Boatner's contradictory declarations the jury would have believed. The State also contends that Boatner's statements made five days after the crime can be explained by fear of retaliation. Smith responds that the record contains no evidence of any such fear. Again, the State's argument offers a reason that the jury could have disbelieved Boatner's undisclosed statements, but gives us no confidence that it would have done so.

This case is a straightforward application of settled law to particular facts that makes little new law.  Why did the Supreme Court take it up?  Wouldn't Smith have been granted relief on federal habeas from the state court's unreasonable rejection of his claim?  Isn't that why Congress adopted the compromise standard of 28 U.S.C. §2254(d), rather than getting rid of federal habeas for state prisoners altogether?

Or does the Supreme Court lack confidence that the Fifth Circuit will grant habeas relief where the 2254(d) standard requires it (i.e., clearly wrong state court decisions), just as it lacks confidence that the circuits divisible by 3 will observe that standard and refrain from second-guessing state courts on close questions, as Congress has required?

The politics of federal judicial appointments, unfortunately, results in the states that need the most federal scrutiny receiving the least and vice versa.  The voters who choose the governor who appoints the state judges, or who elect the state judges directly, also choose the senators who have large influence over the appointments of the federal district and circuit judges in their states.  Less home-state-senator influence over the circuit appointments, at least, would help balance things out.  The political realities being what they are, though, I am not hopeful that can be done.

The Texas Court of Criminal Appeals' stay order in the Skinner case, previously noted here, is finally on that court's website.  The order is not long, so I've copied it in full after the jump.

An eyewitness identification violates due process of law if the police manipulated the procedure to suggest that the suspect is the culprit.  There are a number of Supreme Court cases on that point.  But does the Due Process Clause of the Fourteenth Amendment reach more broadly, to impose a constitutional requirement of reliability on all eyewitness identifications, even if the police did nothing wrong?  That was the issue before the Supreme Court today in Perry v. New Hampshire.

My previous post is here.  CJLF's brief is here.  The transcript of today's argument is here.

The case didn't seem that hard from the beginning, and today's argument tends to confirm that.  Mark Sherman reports for AP:

Paul Owen reports in the Guardian (London):

The Scottish government today lost an appeal to the UK supreme court in a case over human rights that could undermine the convictions of criminals questioned without a lawyer.

A ruling found such questioning was aimed at making it more likely that suspects in Scotland might "incriminate" themselves while being quizzed by police.

The defeat for Scottish ministers - which had been feared for months - has prompted concerns that it could lead to widespread appeals and some criminals walking free from jail.

The Scottish justice minister, Kenny MacAskill, said that in response, with Holyrood's support, he would be making "swift legislative changes to protect the victims of crime and safeguard communities".

Today's supreme court judgment states: "The ECHR [European Convention on Human Rights] requires that a person who has been detained by the police has the right to have access to a lawyer prior to being interviewed."

The U.S. Supreme Court this morning denied a stay pending certiorari to a person resisting a grand jury subpoena for records regarding his Swiss bank accounts.  The case raises issues regarding the Fifth Amendment Self-Incrimination Clause, the required records doctrine, and the Bank Secrecy Act of 1970.  The investigatee, identified only as M.H.,  is represented by Erwin Chemerinsky.  The introductory portion of the Ninth Circuit opinion follows the jump.

A Massachusetts prosecutor gets his case back to do over again for trying to do amateur probability analysis in his closing argument.  Joe Palazzolo has this post at WSJ Law Blog.  Kyle Chesney has this story for State House News Service.  We can't link directly to the opinion due to Massachusetts' quirky opinion system.  The case is Commonwealth v. Ferreira, SJC-10902.  It is under "Slip Opinions" on this page for the time being.  Later, you will need to search the archives for it.

The US Supreme Court this morning released the orders list from last Friday's conference.  Only two cases were taken.  The criminal case is Blueford v. Arkansas, No. 10-1320, dealing with the double jeopardy implications when a jury deadlocks while considering various degrees of the charged offense.  Petitioner claims the jury announced it had acquitted on the greater offense.  The State's Brief in Opposition says there was no verdict to that effect but only "an informal exchange between [the] foreperson and the trial judge...."

The Court turned down two high-profile cases.  One is Wetzel v. Abu-Jamal, No. 11-49.  The Third Circuit stretched to overturn Abu-Jamal's death sentence, adopting an expansive interpretation of Mills v. Maryland, 486 U. S. 367 (1988).  The Supreme Court itself took a limited view of Mills in Smith v. Spisak, 130 S. Ct. 676 (2010) and sent the Abu-Jamal case back to the Third for reconsideration.  The decision after remand is here.

I think the Third is wrong, and on top of that the Supreme Court has such a dim view of Mills at this point that they might even be persuaded to overrule it altogether.  So why did they turn the case down?  I suspect that after the Troy Davis circus they just don't want another high-profile capital case at this point.

The other high-profile denial is Ryan v. Doody, No. 11-175, the Phoenix Buddhist Temple massacre case.  The case is not capital because Doody was a bit under 18 at the time of this horrific crime, illustrating the problem with sharp age cut-offs. This case was also a do-over, sent back to reconsider the Miranda issue after Florida v. Powell, 130 S. Ct. 1195 (2010).  The decision on remand is here.  Judge Tallman wrote a 38-page dissent.  Justice Alito dissented from denial of certiorari, apparently without an opinion.  So Doody gets a new trial without the confession.  If he walks, that will probably be the worst injustice ever perpetrated under the Miranda rule.

The two juvenile LWOP cases, noted here, have apparently been relisted again.

The US Supreme Court opened its annual term today.  The only criminal case on the docket is confined to a narrow issue.  The orders list has only a little of interest, but there are two unusual items.

When the Supreme Court has declined to review a case, a petition to rehear that decision is usually a "Hail Mary" pass with near-zero chance of success. Today the Court asked two States to respond to such petitions, though.  The New Hampshire petition has to do with the identification issue presently before the Court in Perry v. New Hampshire.  The Florida petition comes in an exceptionally notorious case, yet it involves an everyday issue of how lab work is done in the modern era.

All murder is heinous, but if there is one kind of single-victim homicide that cries out for the death penalty above all others, it is the predatory kidnap, rape, and murder of a little girl.  Joseph Smith is such a predator.  This is the kind of case that makes some people who generally oppose capital punishment inclined to make an exception, and it tends to make hard-core opponents quiet, preferring a different case to express their opposition.

Under what circumstances does a challenge to the reliability of an eyewitness identification become a federal constitutional issue rather than a question of state evidence law?  The Supreme Court's identification cases of the 1960s and 1970s involved allegations that the police had tainted the identification.  They used improper, unnecessarily suggestive techniques, or they excluded defense counsel from a lineup.  What if the police had nothing to do with the circumstances alleged to have made the identification unreliable?

In Perry v. New Hampshire, the defendant wants the Supreme Court to scrutinize identifications for reliability under the Due Process Clause of the Fourteenth Amendment even when the identification was spontaneous by the witness.  The case will be argued November 2.

CJLF's amicus brief in this case was mailed in today.  We contend that this matter is and should remain a question of state evidence law, not federal constitutional law.  As Justice Stewart said in Spencer v. Texas, the Constitution does not give the Justices "a roving commission to impose upon the criminal courts of [the states their] own notions of enlightened policy...." 

Reliability of identification is an important issue, to be sure, but not everything important is a federal constitutional issue to be decided by the US Supreme Court.  Some issues about reliability remain disputed among experts.  Better to advance this aspect of law through rule-making and legislative processes than through constitutional case law.

The brief was written primarily by CJLF attorney Christine Dowling.

Oh, and if it makes everyone feel better, Perry is stone-cold guilty without the challenged identification.  He was caught loot-handed by a police officer at the scene and identified by another, unchallenged witness as well.

Speaking of DNA, USDoJ's IG reports:

Our review determined that as of September 2010, the FBI Laboratory's Federal DNA Database Unit had effectively eliminated its backlog of convicted offender, arrestee, and detainee DNA samples. We determined that the FBI reduced this backlog from over 312,000 samples in December 2009 to a workload of approximately 14,000 samples in May 2011. As part of the unit's backlog reduction efforts, from January 2010 through May 2011, the unit uploaded almost 500,000 profiles into CODIS. The FBI currently has the capacity to analyze 60,000 profiles per month, and as of September 2010, the unit was able to begin processing accepted DNA samples within 30 days of receipt. Our audit revealed that the FBI achieved these results by implementing a backlog reduction strategy, hiring additional personnel and contractors, using high throughput robotics, implementing Expert System software for a semi-automated review of DNA profiles after completion of analysis, and reconfiguring laboratory space for more efficient processing. The FBI has achieved a significant accomplishment in reducing the convicted offender, arrestee, and detainee DNA backlog to a manageable monthly workload.

Thanks to Mike Scarcella at BLT for the link.

From time to time, I have offered gentle reminders to our friends in the defense bar about what I view as missteps in defense work.  But this time, they've gone too far.

Yes, I know they have a half-way plausible argument to make  --  indeed, more plausible than a lot of stuff you hear from criminal defense  --  but this case reminded me once more why I was happy to take a scruffy salary as a prosecutor instead of going for the big bucks trying to make somebody's "dream team." 

The Supreme Court's decision the term before last in Berghuis v. Thompkins has caused the Second Circuit to reverse itself and admit an uncoerced statement over a Miranda/Edwards objection.

Basil Katz has this report for Reuters.  CJLF's brief in Thompkins is here.