Recently in Evidence Category

Digital Forensic Examination

| No Comments
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

| No Comments
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

| 2 Comments
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?

| 1 Comment
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

| No Comments
ServerWiper.png
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

| No Comments
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

| 1 Comment
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

| 1 Comment
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?

| 3 Comments
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. ยง3592.  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.

Monthly Archives