Recently in Evidence Category

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.

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.
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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.

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