Recently in Evidence Category

The general rule that character evidence is inadmissible in criminal proceedings is always subject to exceptions.  One of those exceptions is when the prosecution "opens the door" by introducing evidence of the victim's virtuous life during the penalty phase.  But in a murder trial, is evidence that the victim possessed child pornography enough to sully his good character?  And if defense counsel fails to introduce that evidence, is it reversible error under Strickland v. Washington? 

Yes, says the Supreme Court of Missouri in the recent case of Gill v. State:

When the State introduced evidence regarding the victim's good character, Gill's counsel should have presented rebuttal evidence. However, his counsel failed to present rebuttal character evidence because they failed to discover it. They saw the names of the sexually explicit files on the report but were not diligent in investigating further. Defense counsel testified at the Rule 29.15 hearing that after more carefully reviewing the report, they noticed entries that should have alerted them to the presence of pornography on the computer. They had the opportunity to discover the child pornography, bestiality content, and instant message conversations on the victim's computer but neglected to do so.

By failing to discover those files on the victim's computer, Gill's counsel's performance was deficient.

In the case of accused embassy bomber Ahmed Khalfan Ghailani, Judge Kaplan just entered this order:

By letter dated January 6, 2010, defendant has sought a modification of paragraph 5(a) of the Modified Protective Order Pertaining to Classified Information. He contends that his counsel are unduly hampered by their inability, consistent with that order, to discuss with him matters relating to defendant's detention by the Central Intelligence Agency....[see Order]... It perhaps is conceivable that there is an appropriate reason for concern on the part of defendant's counsel. Nevertheless, I am frank to say that I cannot understand from the defendant's submission why the government is not entirely right on this issue. Accordingly, the application is denied. SO ORDERED.

Yesterday, our Blog Scan linked to Mark Hansen's report on Briscoe v. Virginia.  That article mentioned that Justice Sotomayor may be the one to watch to determine whether the Court will uphold a Virginia Supreme Court's holding that a statute governing the admission of certificates of analysis did not violate the Confrontation Clause.  Right off the bat, Justice Sotomayor made it clear that she would influence the outcome of the case, and indicated that her vote may differ from Justice Souter's in last year's case Melendez-Diaz v. Massachusetts. 

Among the cases turned down by the U.S. Supreme Court is Bowling v. Kentucky, No. 09-6673. The defendant in this case is Ronnie Bowling, not to be confused with Thomas Bowling, co-petitioner in Baze v. Rees, or James Bowling, the trial judge who denied his new trial motion. (There seem to be a lot of Bowlings in Kentucky.)

The Kentucky Supreme Court opinion is here, case 2006-SC-000034-MR. Evidence at Bowling's trial included comparative bullet lead analysis, a technique since discredited. Fortunately, there was lots of other evidence. Bowling robbed three gas stations, killing people at the first two. Fortunately, the third victim was able to take cover and call police. A 30-mile car chase followed, during which Bowling threw his gloves out the window. The gun, matched by ballistics to all three crimes, was also found on the chase route. The surviving victim identified Bowling. Given the unlikelihood the verdict would have been different without the bullet analysis, the trial court was within its discretion to deny a new trial. Three justices dissented.

In another argument that can charitably be described as "creative," defendant claimed a Brady violation on the ground that the prosecutor might have asked the expert if there was a possible innocent explanation for the bullet match. The court patiently explains that nothing in Brady requires the prosecution to cross-examine its own witnesses, and defense counsel could just have easily asked the same question. No dissent on this point.

The Court also turned down Alameida v. Phelps, No. 09-519, a habeas case where the opinion below is unusually whiny, even for Judge Reinhardt.

In Kansas v. Crane, 534 U.S. 407 (2002), the U.S. Supreme Court held that the civil commitment of a sexually violent predator requires some proof that a person subject to commitment has a serious difficulty in controlling his or her behavior in addition to a mental abnormality.  But does that volitional requirement apply to people adjudicated not guilty by reason of insanity?  According to the 2nd Circuit's opinion in Richard S. v. Carpinello  (Docket No. 08-4197-pr., December 15, 2009) the answer is yes:

Petitioner-Appellant Richard S. appeals the July 22, 2008 denial of his petition for habeas corpus by the United States District Court for the Northern District of New York (Hurd, J.). Richard S. argues that the state courts unreasonably refused to apply the United States Supreme Court holding in Kansas v. Crane, 534 U.S. 407 (2002), to his case. For the reasons that follow, we hold that Crane's involuntary commitment standard applies to insanity acquittees, but that the New York courts did not unreasonably conclude that Richard S.'s continued involuntary confinement meets the requirements of the due process clause. The denial of Richard S.'s 28 petition for a writ of habeas corpus is therefore affirmed 

Massachusetts AG Martha Coakley swamped her rivals yesterday to take the Democratic nomination for the late Ted Kennedy's seat in the U.S. Senate. Coakley was the target of an exceptionally boneheaded attack, even by today's low standards of political discourse. She signed on to the states' amicus brief in Wood v. Allen, written by the Indiana AG's office. Allen happens to be a capital case, but it involves an issue in federal habeas law that is common to capital and noncapital cases alike. To say that the Mass. AG should refrain from joining an issue of interest to the enforcement of criminal law in Massachusetts simply because the underlying case happens to be a capital one is an argument that only foaming-at-the-mouth anti-DP fanatics would buy.

This story by Matt Viser in the Boston Globe notes the criticism by Rep. Michael Capuano, who finished second yesterday, near the end of the story. Most of the article is about Capuano's criticism of Coakley for saying attacks on the Patriot Act were overblown, which they most certainly were. It's good to see that these attacks got little traction, even in Massachusetts, even in a Democratic primary.

Perry Bacon of AP has this story on the election results. State Sen. Scott Brown won the task of carrying the GOP banner up a very steep slope.

If Coakley wins the general election, as most political observers think is likely, how good a senator will she be on criminal justice issues? Only time will tell, but I will go out on a limb and predict that she will be far better than the late Sen. Kennedy was. (Okay, that's a short, sturdy limb.)

The new issue of Engage, the journal of the Federal Society's Practice Groups, is out, just in time for the National Lawyers Convention. The table of contents and a link to a PDF of the full issue are here.

Among the articles is one by CJLF's Lauren Altdoerffer comparing the U.K.'s statutorily prescribed interrogation warnings with the U.S.'s judicially crafted Miranda rule. A key difference in the U.K. is that the suspect is advised that his silence can be used at trial if he raises something he would reasonably have been expected to say upon arrest. For example, an arrestee with a real alibi would be expected to say so immediately. A criminal who wants to concoct a false alibi needs to line up people willing to lie for him first. There is a logically valid inference from silence in that situation, and the trier of fact should be allowed to consider it.

Contrary to popular myth and the prescribed Miranda warnings, the Fifth Amendment does not contain a right to remain silent. It says, "nor shall any person ... be compelled in any criminal case to be a witness against himself...." That is not the same thing.

Josh Blackman is liveblogging the Convention here.

As Kent noted earlier today, the U.S. Supreme Court heard oral arguments in Maryland v. Shatzer first thing this morning.  The transcript is available here. Today's arguments over the Edwards' rule - that police must cannot initiate questioning of a custodial suspect once he requests an attorney - provide an interesting discussion of just how far Edwards' rule must reach. The arguments also provided some interesting debate over what exactly Miranda was meant to protect.  

David Kaye has this essay in Michigan Law Review First Impressions on the DNA testimony at issue in McDaniel v. Brown. Our prior posts on the case are here, here, and here.

Kaye's essay is a balanced look at the trial testimony and what Brown's attorneys and the Ninth Circuit have said about it. The bottom line, as I read it, is that although the expert did err in response to questions from counsel, the errors are not as prejudicial as Judge Wardlaw's overheated opinion makes them out to be.

I especially enjoyed Kaye's mild rebuke of the opinion for referring to Bayes' Theorem as a "complicated formula."

But Bayes' theorem is not a "complicated formula." It is derived in nearly every introductory text on probability or statistics. It has been discussed ad nauseum in law reviews. It states that the probability of a hypothesis changes with new information in the following simple way: posterior odds = likelihood ratio × prior odds.

As one of the few lawyers with a scientific undergraduate degree, I am often appalled at how little math it takes to make some lawyers throw up their hands and declare the matter too complicated for their comprehension. Anything past the fourth grade level seems to do it.

Anyhow, I doubt the Supreme Court's decision will actually turn on a discussion of the DNA. As noted in our prior posts, the petitioner abandoned the theory he prevailed on in the Ninth Circuit, and the Supreme Court took the case off the argument calendar. I'm betting on a "vacate, remand, and do it right this time, dummies" order.

Update: From David Kaye by email: "By the way, at a conference at George Washington University, when I read the part of the Ninth Circuit opinion on how 'complicated' Bayes' Theorem is, the assembled statisticians broke out in laughter."

The Ninth Circuit has issued its pseudo en banc* opinion in a case arising out of the Balco baseball drug scandal, United States v. Comprehensive Drug Testing, Inc., No. 05-10067. It's a long opinion and will take some time to digest. The opinion is by CJ Kozinski, and Judges Callahan, Bea, and Ikuta dissent in various parts. The summary from the main opinion is quoted after the jump.

Here is another readable opinion from Chief Judge Kozinski in an otherwise mundane criminal appeal. Liza, where the devil are my slippers?

DNA has been one of the most important, possibly the most important, advances in forensic science. When DNA is available, the issue of identity simply drops from the case. A few years back, the anti-DP crowd's poster boy for the executed "innocent," Roger Coleman, was conclusively proven guilty by DNA. It was a great moment.

Now the conclusiveness of DNA is in jeopardy.  An article in Forensic Science International: Genetics says, "It turns out that standard molecular biology techniques such as PCR, molecular cloning, and recently developed whole genome amplification (WGA), enable anyone with basic equipment and know-how to produce practically unlimited amounts of in vitro synthesized (artificial) DNA with any desired genetic profile." The authors propose a method for distinguishing real crime-scene DNA from fake.

We have already seen in the Kevin Cooper case how someone who appears to have been conclusively proven guilty with DNA can drag out litigation for years with tampering claims. No doubt fabrication claims based on this article are coming soon to a courtroom near you.  Andrew Pollack has this article in the NYT.

Abstract of the journal article is after the jump.

Adam Liptak has this story in the NYT headlined, "Sotomayor Faces Heavy Workload of Complex Cases," but of course the Supreme Court as a whole is facing these cases.

A former prosecutor, district and appellate court judge, she has a more fully developed record on criminal issues. Her views are in some ways more conservative than those of Justice Souter, meaning that this is an area where her vote may make a difference.

"I would have expected her to have voted against subjecting scientific experts to cross-examination," said Craig M. Bradley, a law professor at Indiana University, referring to a 5-to-4 decision from the court in June. The decision, with Justice Souter in the majority, ruled that crime laboratory reports may not be used against criminal defendants at trial unless the analysts responsible for creating them give testimony and subject themselves to cross-examination.

The court has agreed to hear a follow-up case, and the new justice will have to consider whether to narrow the scope of the decision from June, Melendez-Diaz v. Massachusetts. [Briscoe v. Virginia, No. 07-11191.]

A pair of cases concerning whether the Constitution allows juvenile offenders to be sentenced to life without parole for crimes in which no one was killed will also illuminate Justice Sotomayor's views on harsh punishments. They may also answer a question not fully resolved at her confirmation hearings, that of whether she will look to the decision of foreign courts in considering the issue, as the court did in barring the execution of juvenile offenders in 2005. [Graham v. Florida, No. 08-7412 and Sullivan v. Florida, No. 08-7621.]

I am not so sanguine that she will be "more conservative" than Justice Souter, meaning presumably more attuned to public safety and less to the defense side. Justice Souter himself was considered "conservative" in this regard at the time of his appointment and for a few years thereafter, and then he drifted. Still, Justice Sotomayor has enough of a record to be confident she will not be another Justice Brennan, for which the nation can breathe a collective sigh of relief.

The U.S. Supreme Court has published its argument calendar for the beginning of the new term in October. The first case out of the box on the First Monday in October is an "original jurisdiction" case which, as usual, is a state suing another state, South Carolina v. North Carolina. (Yawn.)

Next up is Maryland v. Shatzer, on whether the don't-ask-again interrogation rule of Edwards v. Arizona has any time or place limits. CJLF's brief in that case is here.

The next day is federal criminal case day: US v. Stevens, Johnson v. US, and Bloate v. US.

The following Tuesday, October 13, features three state criminal cases (two of them on federal habeas): McDaniel v. Brown, Padilla v. Kentucky, and Smith v. Spisak.

Brown involves an exceptionally bad (even for the Ninth Circuit) sufficiency of the evidence decision, discussed here. Spisak involves an exceptionally bad (even for the Sixth Circuit) extension of existing precedent to overturn a reasonable state court decision, discussed here. Nineteen years after Teague and 12 after AEDPA, they still didn't get it. Padilla involves ineffective assistance of counsel, guilty pleas, and advising of immigration consequences.

Tomorrow, the California Supreme Court will announce its opinion in a drunk-driving case, People v. McNeal, S157565, dealing with the relationship between the breath alcohol measured by the breathalyzer and the blood alcohol level specified in the statute.