Tuesday, June 28, 2005
It is black letter constitutional law. To prove a criminal offense, the prosecution must prove every element of the offense, by proof beyond a reasonable doubt, and the constitution entitles a defendant to confront and cross-examine all witnesses against him. Yet, for the past thirty years, state legislatures have quietly approved laws that cheat the constitution. By that I mean, that these laws fly, undetected, beneath the constitutional radar while violating fundamental constitutional rights.
Although other constitutional cheats abound, in this article I consider one archetypical cheat: statutes that permit state prosecutors to use hearsay state crime laboratory reports, in lieu of live witness testimony, to prove essential elements of a criminal case. These statutes convert the allegations of an uncross-examined state witness into proof beyond a reasonable doubt. I call these forensic proof statutes forensic ipse dixit statutes, because "a bare assertion resting on the authority of an individual" becomes, ipse dixit, an adjudicated fact. The forensic ipse dixit statutes deprive defendants of the right to confrontation and relieve the government of its burden of proof. Along the way, these statutes discourage vigorous defense advocacy, promote carelessness and fraud in crime laboratories, and increase the likelihood of wrongful convictions and sentences.
In Section I of this article, I provide an overview of the nationwide forensic ipse dixit phenomenon. In Section II, I address the unwarranted presumption of reliability that legislatures and courts often accord to forensic reports. In Sections III and IV, respectively, I discuss how the forensic ipse dixit statutes violate the Confrontation and Due Process clauses of the United States Constitution. In Section V, I offer observations about what constitutional cheating reveals about our criminal justice system.
Obtain article here. [Mark Godsey]
The case is Hudson v. Michigan, No. 04-1360, and the issue is described by BNA.com as "Whether "inevitable discovery" doctrine creates a per se exception to exclusionary rule for evidence seized after violation of "knock and announce" rule of the Fourth Amendment."
The case is being litigated by Wayne State CrimProf David Moran. He posted the following about the case on the crimprof list serve:
I have a [Supreme Court case] pending in Hudson v. Michigan, No. 04-1360, in which the issue is whether evidence found in a home after a 4th Amendment knock-and-announce violation should be suppressed or whether it should come in under the theory that the police would have "inevitably discovered" the same evidence if they had knocked and announced. This inevitable discovery argument has been explicitly accepted by the Michigan Supreme Court and the 7th Circuit and explicitly rejected by the 6th and 8th Circuits, the Arkansas Supreme Court and the Maryland Court of Appeals.
The government's inevitable discovery argument relies on language from Nix v. Williams that the police should not be placed in a "worse position" than they would have been in without the constitutional violation. But the Court has many times suppressed evidence and thereby put the
police in a worse position than they would have been had they not violated the Constitution. For example, in Katz, the Court observed that the FBI had ample probable cause to obtain a warrant to bug the telephone booth, but suppressed the evidence because the police did not obtain a warrant. Thus, the police were placed in a worse position than they would have been had they not committed the violation. There are many such cases in which evidence has been suppressed where the police could have, but did not, obtain a warrant.
My question to you folks is: can you think of cases in which the constitutional violation was not failure to get a warrant in which the Court placed the police in a worse position than they would have been had they not committed the violation? I've come up with a few, but I'm sure there must be lots more. And, more broadly, when is it correct to say that the deterrence rationale of the exclusionary rule necessarily requires that the police sometimes be put in a worse position than they would have been without the violation, notwithstanding the contrary statement in Nix?
Contact David Moran at [email protected] [Mark Godsey]
Monday, June 27, 2005
Douglas Berman, Joshua Dressler, and Alan Michaels, faculty Managing Editors of the Ohio State Journal of Criminal Law, report that room still exists for Commentaries and Reviews for the Spring 2006 issue. The Journal can consider submissions until space is filled or sometime in October,
whichever comes first.
Commentaries should be short (about 5000 words, light in footnotes). Reviews may be of recent books, criminal justice reports, or even of criminal justice issues arising in movies, television, and other cultural forums. Submissions should be sent to [email protected] The editors may be contacted in advance with questions: [email protected]; [email protected]; or [email protected]. [Mark Godsey]
In Castle Rock, Colo. v. Gonzales, No. 04-278, the court held that a woman whose children were murdered by her estranged husband after municipal police failed to respond to her repeated pleas to enforce a restraining order against him, as state law required them to do, did not have a property interest protected by the Due Process Clause in having the police enforce the order. Therefore, the court ruled, the mother's 42 U.S.C. §1983 civil rights actions against the municipality was properly dismissed. Decision here.
In Bell v. Thompson, No. 04-514, the court decided that, assuming that Fed. R. App. P. 41 provides a court of appeals with authority to stay a mandate without issuing an order following the Supreme Court's denial of certiorari, the Sixth Circuit abused its discretion in withholding its mandate in this death penalty case for five months without a formal order after the Supreme Court had denied rehearing from the denial of the habeas petitioner's cert petition. Decision here. [Mark Godsey]
The trial for the alleged BTK Killer begins today, and observers are baffled by the defense thus far. No motions have been filed of any sort. Not to change venue in the highly publicized case, no motions to suppress, no motions for anything. Not even a detailed juror questionnaire. The court-appointed attorneys have yet to discuss their strategy (or lack thereof). Story . . . [Mark Godsey] Guilty plea here, including free video.
This week's top 5 crim papers on SSRN, with number of recent downloads, are:
|(1)||165||Victims, Survivors and the Decisions to Seek and Impose Death |
Wayne A. Logan,
William Mitchell College of Law,
Date posted to database: May 2, 2005
Last Revised: May 6, 2005
|(2)||152||Financial Scandals and the Role of Private Enforcement: The Parmalat Case |
Guido Alessandro Ferrarini, Paolo Giudici,
Università degli Studi di Genova - Law School, Free University of Bozen-Bolzano - School of Economics,
Date posted to database: May 27, 2005
Last Revised: June 9, 2005
|(3)||145||Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science |
Alafair S. Burke,
Hofstra University - School of Law,
Date posted to database: April 26, 2005
Last Revised: May 1, 2005
|(4)||124||Law and Emotion: A Proposed Taxonomy of an Emerging Field |
Terry A. Maroney,
New York University - School of Law,
Date posted to database: May 20, 2005
Last Revised: June 15, 2005
|(5)||107||Of God's Mercy and the Four Biblical Methods of Capital Punishment: Stoning, Burning, Beheading, and Strangulation |
Irene Merker Rosenberg, Yale L. Rosenberg,
University of Houston - Law Center, University of Houston - Law Center,
Date posted to database: January 5, 2005
Last Revised: April 27, 2005
In India, a crime reporter was chagred with dozens of burglaries and thefts; he used his professional contacts to move the goods. In Brazil, speed limits will be ending in high crime areas to give motorists a chance to get through without being attacked. In Italy, an outbreak of unlawful private food parties has caught police attention. [Jack Chin]
Sunday, June 26, 2005