Recently in Evidence Category

The California Supreme Court today decided Barnett v. Superior Court, resolving some questions regarding California's postconviction discovery statute, Penal Code §1054.9. The Court had previously rejected the attack on the statute itself by a couple of trouble makers in People v. Superior Court (Pearson) (2010) 48 Cal.4th 564.

In summary, we conclude that, to be entitled to receive discovery beyond merely recovering items that the prosecutor had provided to defense counsel before trial, defendants must show they have a reasonable basis to believe that the specific materials they seek actually exist. To obviate one concern that petitioner has expressed, we note that a reasonable basis to believe that the prosecution had possessed the materials in the past would also provide a reasonable basis to believe the prosecution still possesses the materials. Petitioner need not make some additional showing that the prosecution still possesses the materials, a showing that would be impossible to make. (However, as we explained in Steele, 1054.9 "imposes no preservation duties that do not otherwise exist." [Steele, supra, 32 Cal.4th at p. 695.].) We disapprove People v. Superior Court (Maury), supra, 145 Cal.App.4th 473, and Curl v. Superior Court, supra, 140 Cal.App.4th 310, to the extent they are inconsistent with this opinion.

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Accordingly, we conclude the prosecution is not required to provide discovery of materials from the out-of-state law enforcement agencies of this case that the prosecution does not itself possess.

Congrats to Ward Campbell and Eric Christoffersen, who mostly won this case.

The U.S. Supreme Court issued this orders list yesterday. Nothing of substantive interest. This order in Michigan v. Bryant, No. 09-150, a confrontation case, has some mild interest for Court-watchers:

The motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument is granted. The motion of Richard D. Friedman for leave to participate in oral argument as amicus curiae and for divided argument is denied. Justice Kagan took no part in the consideration or decision of these motions.

I believe that is the first time the words "Justice Kagan" have appeared in a Supreme Court order. The recusal is no surprise. The US amicus brief was filed May 6, while Ms. Kagan was still SG. So the Bryant case will be decided by an 8-Justice court. A 4-4 division would mean that the Michigan Supreme Court decision in favor of the defendant is affirmed, but no Supreme Court precedent is set.

Jeffrey Collins reports for AP:

Now that BP appears to have vanquished its ruptured well, authorities are turning their attention to gathering evidence from what could amount to a crime scene at the bottom of the sea.

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BP and Transocean - which could face heavy penalties if found to be at fault - have said they will raise some of the wreckage if it can be done without doing more damage to the oil well. That would give the two companies responsibility for gathering up the very evidence that could be used against them.

But the federal government has said it simply doesn't have the know-how and the deep-sea equipment that the drilling industry has. And it said the operation will be closely supervised by the Coast Guard.

A criminal defendant has a constitutional right not to be compelled to be a witness against himself, but there is no privilege to withhold or conceal preexisting evidence. In some cases, there is an issue whether the act of producing the evidence is itself testimonial and hence privileged. See United States v. Hubbell, 530 U.S. 27 (2000). That doesn't look like a big issue here.

Now this is spooky. Researchers at Northwestern University were able to confirm suspected details of mock terrorism plans by reading the brain waves of volunteers. The accuracy in this part of the study was 100%. NWU press release is here. Another part of the study involved finding plans without prior knowledge.

The most intriguing part of the study in terms of real-word implications, Rosenfeld said, is that even when the researchers had no advance details about mock terrorism plans, the technology was still accurate in identifying critical concealed information.

"Without any prior knowledge of the planned crime in our mock terrorism scenarios, we were able to identify 10 out of 12 terrorists and, among them, 20 out of 30 crime- related details," Rosenfeld said. "The test was 83 percent accurate in predicting concealed knowledge, suggesting that our complex protocol could identify future terrorist activity."

Development of a lie detector that actually works would have profound implications for criminal justice. While we could not force a person to take the test without repealing the Self-Incrimination Clause, the fact that any innocent person who is wrongly accused would be able to simply and immediately clear himself would virtually eliminate the possibility of wrongful convictions. It might well be time to reconsider the rule of Griffin v. California, 380 U.S. 609 (1965). If you can clear yourself by taking the test and choose not to take it, shouldn't the fact-finder be able to draw the obvious inference?  Even if we can't instruct the juries to that effect, don't we all know they will anyway once the availability of the test is common knowledge?

Jesse Holland has this story for AP on the Supreme Court's pruning back of Miranda this term. The opening paragraphs exaggerate the extent of the changes, though. The opening sentence confuses the right to remain silent with the Edwards prohibition against the police renewing a request for a waiver. The two-weeks-out-of-custody rule of Shatzer is portrayed as a big shift in the state's favor.  Prior to Shatzer, a strong argument could have been made that any break in custody terminated the Edwards prohibition, so the two weeks was arguably a shift in the defendant's favor. The main change in the state's favor in Shatzer was the recognition that the defendant's status as a state prison inmate in custody on an unrelated charge was not the kind of police custody that triggers the extended protections of Miranda.

In May, the California Supreme Court upheld a conviction against a Compulsory Process Clause challenge when a defense witness was deported. Today, in People v. Herrera, S171895, Cal. Supreme upholds a conviction against a Confrontation Clause challenge when a prosecution witness testified at the preliminary hearing and was deported before trial, and his earlier testimony was admitted in evidence.

Does a person commit the crime of knowingly bringing a controlled substance into a jail when his entry into the jail was involuntary (i.e., when he was arrested for another crime). Yes, in California, the Cal. Supreme Court decided today in People v. Low, S151961. Does the dilemma of having to either violate this statute or dump the drugs in view of the arresting officer before entering the jail, thus effectively admitting the lesser crime of possessing them outside the jail, violate the Fifth Amendment? No.

Justice Sotomayor has this "Statement ... respecting the denial of the petition for writ of certiorari" in Wrotten v. New York. The case involves the Confrontation Clause implications of testimony "via a two-way video that enabled the testifying witness to see and respond to those in the courtroom, and vice versa." However, the case isn't final in the state courts, so SCOTUS kicks the question down the road.

The Ninth Circuit issued this split opinion today in United States v. Barry Bonds. The main issue is whether a statement by the defendant's agent can be attributed to him for the purpose of the rule that a statement of a party opponent is not hearsay. Judge Bea thinks so, but Judges Schroeder and Reinhardt think not.

The WSJ has op-eds by Steven Shapiro of the ACLU and John Yoo of UC Berkeley on the Supreme Court's recent pruning of Miranda in Berghuis v. Thompkins.

Shapiro says what you would expect the ACLU to say. Unfortunately, Yoo doesn't really counter him. Yoo mentions the decision briefly in its criminal procedure context and then goes off on a tangent about the Obama Administration's return to a law-enforcement approach to terrorism rather than a war approach.

KPCC, public radio in L.A., has this program on the Berghuis v. Thompkins decision. The program is Air Talk, hosted by Larry Mantle. The guests are UC Irvine Law Dean Erwin Chemerinsky and CJLF Legal Director Kent Scheidegger.

Today, the United States Supreme Court pruned back the artificial rule it created in Miranda v. Arizona in 1966. The decision in Berghuis v. Thompkins moves the Constitution back in the direction of what it really says, that no person "shall be compelled to be a witness against himself in a criminal case," and away from artificial rules created by the Court.

The Miranda rule remains intact in that the police must warn suspects of their rights and that an invocation of those rights by the suspect requires the police to stop questioning. Today's decision involves what is needed to establish whether a suspect invoked or waived his rights.

To invoke the right to remain silent such that the police must stop, the suspect must say so expressly and unambiguously. On the other hand, a waiver of rights may be inferred from the facts that the suspect received the warnings, understood his rights, and responded to questions anyway.

The rule really in the Constitution, forbidding compelled statements, remains in force, of course. Today's decision places limits on an entirely artificial rule grafted onto the Constitution by the Supreme Court. It is entirely appropriate that artificial rules be strictly limited, if they are not to be abandoned altogether.

The split was 5-4, majority opinion by Justice Kennedy, dissent by Justice Sotomayor.

Although this case is governed by the deferential standard of AEDPA (28 U.S.C. §2254(d)), the Court chose to decide the issues on the merits. That is consistent with the statute, since a correct decision is necessarily reasonable, but Justice Sotomayor criticized the majority for going further than needed to decide the case before it. True, but it is kind of odd to make that criticism in a Miranda case, as Miranda itself is the exemplar of going further than necessary to decide the case.

Tomorrow, the California Supreme Court will release its decision in People v. Jacinto, S164011: "Was defendant denied his constitutional rights to compulsory process and due process when the sheriff's department released a subpoenaed defense witness to federal immigration authorities for deportation prior to defendant's trial?"

The court will also announce a decision in the capital case of Scott Forrest Collins. The judgment was entered December 19, 1996.

Yesterday, the Supreme Court granted certiorari in the postconviction DNA testing case of Skinner v. Switzer. Mrs. Switzer is the DA for the 31st Judicial District in the Texas Panhandle. ConnectAmarillo.com has this article with a letter from counsel for Mrs. Switzer. It is copied in full after the jump.

In Giles v. California, 128 S.Ct. 2678 (2008), the Supreme Court gave the "forfeiture by wrongdoing" exception to the Confrontation Clause a narrow interpretation. The fact that a declarant is unavailable for cross-examination because the defendant murdered her does not, by itself, forfeit the defendant's right to confront her as a witness. It is only if he murdered her for the purpose of preventing her testimony that the exception applies.

What about cases decided on appeal before Giles? Shouldn't both the limitation on applying new rules of Teague v. Lane, 489 U.S. 288 (1989) and the AEDPA rule of 28 U.S.C. §2254(d) prevent the overturning of contrary judgments affirmed before Giles?

Yes, says the Ninth Circuit in Ponce v. Felker, No. 08-73186. "At the time of Petitioner's appeal, it was neither contrary to, nor an unreasonable application of, clearly established federal law [for] the California appellate courts to rule that the forfeiture did not require proof of an intent to make the witness unavailable. Accordingly, we affirm." The panel was Judges B. Fletcher, Pregerson, and Graber, two of whom are about as pro-defendant as judges get. So it is encouraging to see them apply AEPDA correctly.

In this particular case, the judgment could also have been affirmed on a straight Crawford analysis by finding that the statements in question were not "testimonial." The state and federal trial courts both held that, but the Ninth passed on the issue.