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A Different Kind of Polygraph

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Blake McConnell and Timothy J. Weber have an article in the current FBI Law Enforcement Bulletin titled The Concealed Information Test: An Alternative to the Traditional Polygraph.

Instead of asking Professor Plum "Did you do it?" ask him "Was it done with the lead pipe? With the wrench? With the revolver?"  If only the perpetrator and the investigators know the answer, the theory goes, the perp's reaction to the right answer will differ from his reaction to the wrong answers in a way different from innocent people.  Follow this with "Was it done in the Conservatory?" and so forth, and you may build a compelling case.

Polygraph evidence is generally not admissible in court, although in United States v. Scheffer, 523 U.S. 303, 318 (1998) Justice Kennedy noted in a concurring opinion for himself and three others, "some later case might present a more compelling case for introduction of the testimony than this one does."

One problem with traditional polygraphs is that the worst liars are the best liars.  They can lie through their teeth all day long and never feel the twinge of guilt that is the basis of the physiological reaction to telling a lie.  McConnell and Weber note:

Many researchers have concluded that the [Concealed Information Test] is more appropriate for testing psychopathic offenders who demonstrate a lack of emotion associated with the defensive-type responses underlying [Comparison Question Test] theory. There may be an increase in orienting response--upon which the CIT is based--associated with psychopathy; therefore, psychopaths may be more suitable for CIT testing than others.
The Japanese have been doing this since the 1950s.  Sounds interesting.
As Bill noted Wednesday, the United States Supreme Court in Riley v. California declined to extend to contemporary phones the doctrine that when a person is arrested everything on him can be searched without a warrant.

This case involves applying a two-century-old constitutional provision to technology that was nearly unimaginable even twenty years ago, much less two hundred.  The approach used in Chief Justice Roberts' unanimous opinion for the Court is to assess the degree of intrusion and balance that against government interests.  I think we should also look at the Fourth Amendment itself and see if anything is closely analogous.  The First Congress's handiwork, ratified by the requisite number of states, goes out of its way to protect "papers."  The emails stored on a modern smart phone have the same informational content as the "papers" of 1791.  It is the message, not the medium, that matters here, Marshall McLuhan notwithstanding.

The asserted justifications for searching the phone immediately without a warrant are weak.  The police can seize the phone, remove the battery, and put it in the evidence locker.  It's not going anywhere, and neither is the data, while they explain to a magistrate why they need to search it.  I have no problem with the substantive Fourth Amendment holding in this case.

But the police were not, or should not have been, the ones on trial in the case of the People of the State of California v. David Riley.  The questions to be decided in that case were whether Riley carried concealed and loaded weapons and whether he did so to benefit a criminal street gang.  Should the contents of the phone, surely admissible if the police had gotten a warrant, be excluded from evidence on the gang question simply because they did not know they needed to get one?

The Supreme Court did not say, and it was not asked to say.  But I think the question is important.

Why the Use of Informants is Risky

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Because one of them might turn out to be Al Sharpton.

In what has to be one of the oddest criminal law stories I've seen for a while, Al Sharpton, who yesterday denied that he had been an FBI informant in the 1980's, today admits it and says it's old news.  

I was a federal prosecutor for many years, and I can tell you that informants are necessary, particularly in mob and big drug conspiracy cases.  But they're a boatload of trouble. For one thing, anyone in a position to have lots of information about extortion rackets or drug dealing is unlikely to have the character of the Pope.  The defense lawyer in cross examination is going to go to town.  

For another, such people are likely to have been life-long fabulists, and Big Al is no exception. Indeed, Rev. Sharpton is the prototype liar, having concocted one of the most remarkable hoaxes of recent times in the Tawana Brawley rape hoax.  

None of this, of course, keeps Big Al from being a frequent, honored guest of Barack Obama.  Records show that Sharpton had more visits with the President last year than Harry Reid.  Gads, I hope he wasn't wearing a wire!

UPDATE:  One acid commenter on Powerline notes, "Considering that Al ratted on the mob, he should be as nervous as a virtuous intern at the Clinton Foundation."
For many years, the U.S. Supreme Court has been pruning back one of the most repugnant notions of criminal procedure -- the idea that a clearly guilty criminal can suppress rock-solid reliable evidence of his crime on the basis of how it was obtained.  If someone violated a law in the process of obtaining that evidence, that person should be prosecuted or sued for the violation, but it is utterly irrelevant to the justice of the case at hand -- whether the defendant did or did not commit the crime of which he is accused.

On Monday, the U.S. Court of Appeals for the First Circuit in Boston rejected a novel attempt to expand the exclusion of evidence instead of retract it.  The home of "tax protestor" Charles Adams was searched by IRS agents with a search warrant.  Under U.S. v. Leon, a warrant itself is generally sufficient to defeat any claim of exclusion, except in highly unusual circumstances, but Adams made the creative claim that because the agents were armed and were not authorized to be armed, the evidence must be suppressed.

"Huh?" you might ask.  That's pretty much what the court said, but of course more judicially.

An Insane Proposal on Mental Evidence

Here is a fairly reliable indicator that an argument is not going well:

JUSTICE SOTOMAYOR: Mr. Katyal, assuming the incredulity of my colleagues continues with your argument, which way would you rather lose?
The US Supreme Court today heard oral argument in the case of Kansas murderer and meth dealer Scott Cheever.  The transcript is here.  The case is described in my preview post Monday and in my post last year after the Kansas Supreme Court decision.

The case involves a compulsory mental examination of a defendant who intends to offer a mental defense and put on expert testimony, based on the defense expert's examination, to support that defense.  Shouldn't the prosecution have a comparable opportunity to examine the "crime scene" of the defendant's mind to make an effective rebuttal?  Federal Rule of Criminal Procedure 12.2 says yes, as do similar rules in most states.

Defense attorney Katyal started off on narrow grounds, arguing that the prosecution expert went way beyond the permitted rebuttal into various other matters prejudicial to the defense.  That is a reasonable argument, and if the Kansas Supreme Court had actually ruled on that ground, this case never would have made it to SCOTUS.  That question is not properly presented to the high court.

Later, Katyal gets into an argument that would, if accepted, render FRCrP 12.2 and kindred state rules unconstitutional, and even the justices who most often side with the defense are astonished, prompting Justice Sotomayor's comment above.  On this point, the decision will likely be 9-0 or perhaps 8-1.

SCOTUS This Week

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The US Supreme Court has a two-day calendar this week, rather than the usual three-day, due to the Columbus Day holiday.  The orders list from Friday's conference will be issued Tuesday.

The most important case on the list is the California prisoner release case, Brown v. Plata, No. 13-198, challenging the three-judge court's order to reduce California's prisoner population to a level that even the notoriously soft-on-crime Gov. Jerry Brown asserts is dangerous.  This case is a mandatory direct appeal, rather than a discretionary writ of certiorari, but there is an odd jurisdictional question regarding whether the case actually falls within the high court's direct appeal jurisdiction.  Earlier, the Court turned down a stay application by Brown.  An amicus brief by yours truly on behalf of the four living former governors in support of that motion is here.

SCOTUSblog has other petitions to watch here.  The Cert Pool has the full list, with capital cases flagged, here.

The heavy news coverage this week will be on Schuette v. Coalition to Defend Affirmative Action, argued Tuesday.  It's off topic for the blog, but FWIW here are opposing opinion pieces in the New York Times and Wall Street Journal.

The two criminal cases are set for argument Wednesday.  Kansas v. Cheever involves a compelled psychological examination of a defendant who makes a mental defense but does not claim he is mentally ill.  CJLF's brief in support of the state is here.  An earlier post written after the state court decision is here.   Update:  Hurst Laviana of the Wichita Eagle has this story.

Also up Wednesday is Kaley v. United States, regarding whether an indicted defendant's allegedly ill-gotten gains can be frozen when he needs them to pay his lawyer.

True But Misleading

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Is making a statement to a grand jury that is literally true but misleading a violation of 18 U.S.C. §1503, obstruction of justice?  The Ninth Circuit so held today in United States v. Barry Bonds, No. 11-10669.

On its face, the statute seems to be about bribing or intimidating jurors and other court officials, not about making false statements, much less about misleading ones.  We have other laws for people who lie in court.  See 18 U.S.C. §§1621-1623.

Salinas Podcast

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The Federalist Society has a podcast, by CJLF Legal Director Kent Scheidegger, on the Supreme Court's decision in Salinas v. Texas on June 17.
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.
*                                                *                                            *
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.

Chandra and Brady

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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).

Eyewitness Testimony in Oregon

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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.

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