Recently in Evidence Category

The US Supreme Court today upheld, 3-2-4, a prosecutor's comment on the fact that a murder suspect failed to answer a single question during a voluntary interview.  He was not under arrest at the time, and the case had been litigated on the assumption he had not received Miranda warnings.  (He actually had, according to the state's brief, but apparently no one brought that to the attention of the trial court.)  The case is Salinas v. Texas, No. 12-246. CJLF's brief is here.

The plurality opinion by Justice Alito (joined by Chief Justice Roberts and Justice Kennedy) is based on the fact that the suspect did not expressly invoke his Fifth Amendment right.  In Berghuis v. Thompkins, decided three years ago, the Court held that a prolonged silence during most of an hours-long custodial interview did not invoke Miranda rights so as to require a cut-off of questioning, and thus the suspect's response to a single question was admissible.  This case is a mirror-image.  Salinas freely answered most questions but made no verbal response to the one most incriminating question.  The plurality extends, slightly, the express invocation requirement to cover this situation.

Justice Thomas, joined by Justice Scalia, concurs in the judgment on the broader ground that commenting on silence is not compulsion within the meaning of the Fifth Amendment, and Griffin v. California, 380 U.S. 609 (1965), forbidding comment on the defendant's failure to testify at trial, was wrongly decided.  There is zero chance of overruling Griffin with the current Court, but there is much to be said for not extending it.

Arian Campo-Flores reports in the WSJ:

A Florida judge overseeing the coming trial of George Zimmerman, who is charged with second-degree murder in the killing of 17-year-old Trayvon Martin last year, ruled Tuesday that attorneys can't mention the teenager's alleged drug use, school suspension or past fighting in their opening statements.

But Seminole County Circuit Judge Debra Nelson said she would consider permitting some of those matters to be raised at trial if she deemed them relevant to the proceedings.

Prior post is here.

Matthew Huisman has this article in the NLJ (free reg. required):

When Lois Lerner of the Internal Revenue Service invoked her Fifth Amendment right against self-incrimination before a House committee on Wednesday, she did so after making a brief statement.

Those remarks have triggered a debate over whether Lerner waived her Fifth Amendment rights. While case law on the subject is limited and fuzzy, most practitioners agree that Lerner risks being held in contempt.

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George Washington University Law School professor Orin Kerr, in a post on The Volokh Conspiracy blog, pointed to the 1999 Supreme Court ruling in Mitchell v. U.S. that a witness "may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details."

Another Supreme Court precedent on the subject of selective silence is forthcoming.  Salinas v. Texas was argued in April and will probably be decided in June.  CJLF's brief is here.  My podcast for the FedSoc is here.  I don't know if Salinas will shed any additional light on the Lerner situation, but it might.

Rene Stutzman and Jeff Weiner report for the Orlando Sentinel:

The evidence that George Zimmerman's attorneys have uncovered on Trayvon Martin's cell phone paints a troubling picture of the Miami Gardens teenager: He sent text messages about being a fighter, smoking marijuana and being ordered to move out of his home by his mother.

And photos from that phone offer more of the same: healthy green plants - what appear to be marijuana - growing in pots and a .40-caliber Smith & Wesson handgun.

Defense attorneys on Thursday gave formal notice to prosecutors that they intend to use those and other reputation-damaging pieces of evidence about Trayvon once Zimmerman's second-degree murder trial begins June 10.

Prosecutors say they're not relevant and should be barred.

Florida defines "relevant" in pretty much the usual way.  "Relevant evidence is evidence tending to prove or disprove a material fact."  That is simpler than the Federal Rules of Evidence phrasing, but not really different.  Any probative value that nudges the probability meter one way or the other to any degree is enough to make evidence relevant.

Is this evidence relevant?  It's probative value is certainly quite weak.  Is there any at all?  Doubtful.

When the prosecution's evidence in a major criminal case depends heavily on a jailhouse informant, you know as surely as night follows day that there will be a claim of nondisclosure of evidence regarding the informant.  Zoe Tillman has this post at BLT on the Chandra Levy case.  The US Attorney's Office says the allegations are "baseless."

Marc Thiessen has this column in the WaPo with the above headline.  He notes that nearly three years ago, Mr. Holder declared that legislation altering the Miranda rule was "a new priority" and "big news."  Then nothing happened.

Why are we still operating under the same flawed legal framework for questioning of suspected terrorists that Holder pledged to fix three years ago? Why didn't the Obama administration follow through on Holder's promise to work with Congress to change the law? Why are we once again reading a suspected terrorist his Miranda rights before intelligence officials are done questioning him for national security purposes?

Does Congress have the authority to alter the Miranda rule?  Let's go back to the source:

It is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the States in the exercise of their creative rule-making capacities.  Therefore we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted.   Our decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect.  We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws.  However, unless we are shown other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it, the following safeguards must be observed.

Miranda v. Arizona, 384 U.S. 436, 467 (1966).

The Federalist Society's State Court Docket Watch has this article by Daniel Re on the Oregon Supreme Court's decision last November rewriting the rules on eyewitness testimony.

The Federalist Society has this podcast by yours truly on the oral argument in Salinas v. Texas last week.  The capsule description of the case is:

On April 17, 2013, the Supreme Court heard oral argument in Salinas v. Texas. This case considers whether, when a suspect is silent in response to a single question during a voluntary interview with police before he has been arrested or read his Miranda rights, use of that silence at trial violates the Self-Incrimination Clause of the Fifth Amendment.

With the arrest and non-Mirandizing of the Boston Marathon bomber, there is much confusion floating around today about the "public safety" exception to the rule of Miranda v. Arizona.  The confusion about the exception has its basis in confusion about the underlying rule.

The Fifth Amendment guarantees that no person may be compelled to be a witness against himself in a criminal case.  It follows that a violation occurs when a suspect is compelled to answer questions and those answers are introduced in a criminal trial.  The government can and does compel people to speak (or otherwise communicate) all the time.  All of us who recently filed our tax returns are keenly aware of that.  If the statements are not incriminating, there is no Fifth Amendment violation.  Even if they are incriminating, if the person is guaranteed they won't be used against him in a criminal trial, such as by a grant of use immunity, there is no Fifth Amendment violation.  No, you don't "have a right to remain silent" as such.  The right is narrower than that.

What the Supreme Court did in Miranda v. Arizona was create a rule of evidence for criminal trials.  If the police question a suspect and don't follow the rules laid down in that case, the suspect's statements are conclusively presumed compelled and therefore cannot be admitted at the suspect's trial.  That's it.  The court did not make a law requiring police to Mirandize everyone they arrest.  There is no right to the warnings as such.  There is no right to have counsel present during questioning as such.  An arrestee cannot sue the cops for questioning without Miranda warnings.  Although the Supreme Court case of Chavez v. Martinez, 538 U.S. 760 (2003) is a jumble of opinions, that much at least is clear.

Beating a confession out of an arrestee that is never used in a trial is, of course, a violation of his rights.  It is a due process violation, and the arrestee can sue for that.  See the very brief Part II of Justice Souter's opinion in Chavez, which is the opinion of the Court on that point.  The Miranda requirements are prerequisites for introducing the fruit of the interrogation at trial, period.  Questioning for other purposes is not subject to these requirements.  They still can't beat him, of course, but that has nothing to do with Miranda.  It's not even the Self-Incrimination Clause* at issue in that circumstance.

With the nature of the rule clearly in mind, let us turn to the exception.

One well-known problem with eyewitnesses is that they are sometimes focused on one aspect and don't see or don't remember other aspects.  The most common example is the armed robbery victim who is understandably focused on the gun and can't describe the robber.

Ellen Huet of the SF Chronicle has this twist on the witness focus phenomenon:

Another case apparently relisted in Friday's Supreme Court conference (see post earlier today) involves instructing the jury not to draw adverse inferences from the defendant's failure to testify.

In Carter v. Kentucky, 450 U.S. 288 (1981), the Supreme Court decided that, in the guilt phase of a trial, the defendant is entitled to such an instruction on request.  Not all defendants request the instruction, though, because it highlights the fact that the defendant has not testified.  Telling people "don't pay attention to this" is a pretty good way of getting them to pay attention to something.

Does the Carter rule apply to a case where the defendant pleads guilty to the crime and admits the eligibility circumstance, so the jury is impaneled only to decide whether an admittedly death-eligible murderer should be sentenced to death?  The trial judge in the case of Robert Woodall did not think so, and neither did the Kentucky Supreme Court.  The federal district judge did, though, and a majority of a three-judge panel of the Sixth Circuit decided that the state court's contrary decision was contrary to clearly established Supreme Court precedent, the standard established by Congress for a lower federal court to overturn a state court decision on habeas corpus.  Judge Cook did not agree:

The Supreme Court's jurisprudence on lab techs and the Confrontation Clause is a mess.  The fractured opinions leave everyone scratching their heads trying to figure out what the law is.  There are huge practical problems with having the person who did the analysis testify.  First, the process is often a team effort, so there is no one person.  Second, people often quit or get laid off.  Sometimes a key person is dead by the time of the trial.

For more background, see this post from last year on Williams v. Illinois and this post from 2011 on Bullcoming v. New Mexico.

Today, the Court of Appeals for the District of Columbia decided Young v. United States, throwing out the conviction of a rapist because the supervisor, not anyone who actually worked on the lab analysis, testified at trial.  Zoe Tillman has this post at BLT.  "A spokesman for the U.S. attorney's office, William Miller, said via email that his office is 'reviewing the decision and has no further comment at this time.' "

The D.C. Court of Appeals is treated like a state supreme court for many purposes, including review of its decisions.  If DoJ wants to take it up, they have to file a certiorari petition with the U.S. Supreme Court.  (See 28 U.S.C. §1257(b).)

Jack Leonard reports in the LA Times:

Opening a new frontier for solving cold cases, California prosecutors are hunting for DNA from killers, rapists and other prison inmates who died before authorities obtained their genetic profiles.

Prosecutors from Sacramento, Los Angeles and Orange counties are sifting through old court exhibits and examining long-since forgotten crime-scene evidence in search of blood, saliva and other material that can be tested for DNA. Once obtained, the DNA is compared with the genetic profiles from unsolved cases that have DNA from unidentified perpetrators.

Of course, there is no case to prosecute where the perp is dead.  However, knowing that the case is solved and the perp is indeed dead is a great service to the victim or the victim's family.

The ACLU isn't quite as exercised about the privacy rights of dead people.  Even so, they are warning about getting samples from exhumations or medical samples.

AP has this story on the sentencing of Drew Peterson for killing his third wife. He got 38 years -- to age 97 -- which should be sufficient.

One ground for appeal will be Illinois' revised hearsay law:

The hearsay -- any information reported by a witness not based on the witness' direct knowledge -- included a friend testifying that Savio [the victim in this case] told her Peterson once put a knife to her throat and warned her, "I could kill you and make it look like an accident."

This is one case where the Supreme Court's revamp of the Confrontation Clause may help the prosecution.  It would have been easier to argue that this hearsay is unreliable and not within any recognized exception under the old Ohio v. Roberts doctrine.  Arguing that it is "testimonial" under the current Crawford v. Washington rule is a tougher argument.

And of course there is always the ineffective assistance claim.  Defense counsel called a witness who ended up hurting his case.

A turning point at the trial came when the defense called a divorce attorney who said he spoke to [wife #4] Stacy Peterson before she vanished. Rather than blunting her credibility, the witness stressed to jurors that Stacy Peterson seemed to truly believe her husband killed Savio.

This is a case where the ineffectiveness claim can be resolved on direct appeal.

Earlier Thursday, Judge Edward Burmila denied a defense request to grant Drew Peterson a retrial. Peterson's current attorneys contended his former lead attorney, Joel Brodsky, botched the initial trial and had been the one to decide to call Smith to the stand. Brodsky stepped down from the defense team in November, as his quarrel with Peterson's current lawyers worsened.

The US Supreme Court today unanimously reversed the Florida Supreme Court's attempt to subject routine dog sniffs to a battery of rigid tests.

It is good to see the current Supreme Court unanimous in its acceptance of the Rehnquist Court's reform of probable cause, without a single Justice wanting to go back to the old Warren Court approach.

Justice Kagan wrote the opinion.

All we have required [for probable cause] is the kind of "fair probability" on which "reasonable and prudent [people,] not legal technicians, act." [Ill. v. Gates, 462 U.S.] at 238, 231 (internal quotation marks omitted).

In evaluating whether the State has met this practical and common-sensical standard, we have consistently looked to the totality of the circumstances. See, e.g., Pringle, 540 U. S., at 371; Gates, 462 U. S., at 232; Brinegar v. United States, 338 U. S. 160, 176 (1949). We have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach. In Gates, for example, we abandoned our old test for assessing the reliability of informants' tips because it had devolved into a "complex superstructure of evidentiary and analytical rules," any one of which, if not complied with, would derail a finding of probable cause. 462 U. S., at 235. We lamented the development of a list of "inflexible, independent requirements applicable in every case." Id., at 230, n. 6. Probable cause, we emphasized, is "a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even use- fully, reduced to a neat set of legal rules." Id., at 232.