CrimProf Blog

Washington State Calls for Improvements to Remedy Evidence Accuracy Problem

From seattlepi.com: After a series of reports criticizing the handling of evidence at Washington crime labs, the state's Forensic Investigations Council has weighed in, agreeing that an employee who falsely certified test results cast "a cloud of doubt" over the workings of the entire laboratory system.

But after making six recommendations for improvement, the group of local government representatives and pathologists who make up the council praised the majority of lab workers as "dedicated, hard-working" and honest.

They "certainly did not deserve to have the actions of two people affect the public perception of their work," the report concludes.

Doubts about the accuracy of the lab's breath-test results surfaced last summer, when toxicology lab manager Ann Marie Gordon was accused of signing off on scientific tests in cases she hadn't actually done.

Another employee, Evan Thompson, made technical errors and violated lab procedures when analyzing a bullet's trajectory.

Both have since resigned.

Though the State Patrol, which runs the labs, maintains that the inaccurate results were extremely limited, two judges in Skagit County and three in King County have challenged the credibility of DUI evidence from the toxicology lab.

To rectify the situation, the council recommended increased staffing, tougher criteria for accreditation and more frequent audits. It also recommended dividing oversight of the 220-employee, eight-lab system between two people, whereas it had previously been handled by one.

The crime lab system has now implemented 39 specific recommendations for improvement made in three separate audits. [Mark Godsey]

Bigger Ballistics Database Shot Down

From NPR.com: In recent years, some lawmakers and gun control groups have pushed for a national database that would record the ballistics signature of every gun sold in the United States. But a new report from a prestigious scientific panel says it's probably not a good idea.

The series of deadly sniper shootings in the Washington, D.C., area in October 2002 inspired some lawmakers to start thinking about a national database.

By comparing bullets taken from the victims, investigators knew that the shootings were linked. But to what gun? Whose gun? Police couldn't tell. The federal government does have a database of markings on bullets that police can search, but it includes only guns that have been already used in a crime.

That led some lawmakers to wonder whether the unique markings left by all guns should be recorded — whether the guns should be fired and their ballistic signatures noted before they were sold. That way, if the guns were ever used in crimes, investigators could trace them.

But it wasn't clear if the technology was ready. So the Department of Justice took the problem to the National Research Council, which gives the government independent advice on science issues. A panel spent four years looking at the idea.

The panel's verdict? "At this time, it really is not feasible," says John Rolph, who chaired the panel. Rolph is a statistician from the University of Southern California. Listen. . . [Mark Godsey]

The Art of Judging Science

from sciencenews.org: From Perry Mason to Law & Order, legal dramas have proved among the most predictably popular series on American television. In such shows, a defendant's guilt or innocence typically comes to light only after expert witnesses testify before a jury, justifying—or challenging—theories about how a defendant could have perpetrated the crime.

Much of what people know—or think they know—about U.S. jurisprudence traces to such shows about criminal cases. What few nonlawyers realize is that these shows aren't especially good models of cases involving torts-noncriminal suits where plaintiffs claim harm from a company's products or activities. In these cases, judges frequently bar from the courtroom at least some scientific experts and the data on which they might have testified. Rest of Article. . . [Mark Godsey]

Cell phone Cameras Are providing Investigators with new Ammunition

From wsj.com: Cellphones, which often contain personal information like contact lists and call histories, have long served as a valuable police tool in criminal investigations. But the spread of built-in cameras -- which in some newer phones can even record video -- is providing investigators with new ammunition, thanks to simple human behavior. Apparently even criminals like snapping cellphone photos of themselves.

The result in many police precincts is an unexpected windfall. In the small city of Nashua, N.H., one prosecutor estimates that cellphone photos provide useful evidence 40 or 50 times a year. At least a half-dozen small software companies are now peddling programs designed to help investigators download data from suspects' cellphones without compromising the evidence. Earlier this year, the federal government's National Institute of Standards and Technology issued a paper outlining techniques for doing forensic work on cellphones.

Cellphone forensics do present some challenges. Unlike personal computers, cellphones feature a multitude of proprietary operating systems, requiring investigators to use different methods for extracting data from different phones. By law, police making an arrest aren't allowed to examine a phone's photos without a search warrant. And police must remember to obtain the phone's charger; retrieving information isn't easy if the battery goes dead.

By and large, however, the cellphone photo trend is welcomed by police and prosecutors. "We pray for those kinds of cases," says Debra Collins, an assistant state attorney in New Britain, Conn. Last spring, Ms. Collins obtained guilty pleas from two young men who had used a friend's camera phone to record one of them igniting a car by tossing fireworks into an open window. Rest of Article. . . [Mark Godsey]

FBI Fail to Alert Defendents of the Failure of Comparative Bullet-Lead Analysis

From washingtonpost.com: Hundreds of defendants sitting in prisons nationwide have been convicted with the help of an FBI forensic tool that was discarded more than two years ago. But the FBI lab has yet to take steps to alert the affected defendants or courts, even as the window for appealing convictions is closing, a joint investigation by the Washington Post and Sixty Minutes has found.

The science, known as comparative bullet-lead analysis, was first used after President John F Kennedy's assassination in 1963. The technique used chemistry to link crime-scene bullets to ones possessed by suspects on the theory that each batch of lead had a unique elemental makeup.

In 2004, however, the nation's most prestigious scientific body concluded that variations in the manufacturing process rendered the FBI's testimony about the science "unreliable and potentially misleading." Specifically, the National Academy of Sciences said that decades of FBI statements to jurors linking a particular bullet to those found in a suspect's gun or cartridge box were so overstated that such testimony should be considered "misleading under federal rules of evidence."

A year later, the bureau abandoned the analysis.

But the FBI lab has never gone back to determine how many times its scientists misled jurors. Internal memos show that the bureau's managers were aware by 2004 that testimony had been overstated in a large number of trials. In a smaller number of cases, the experts had made false matches based on a faulty statistical analysis of the elements contained in different lead samples, documents show.

Rest of Article. . . [Mark Godsey]

FBI Gunshot Residue Testing Questioned in Case

From chron.com: FBI testing of gunshot residue in the slaying of a pregnant Katy woman violated agency guidelines and yielded contradictory results, and therefore should not be allowed into evidence in her husband's murder trial, his attorney said.

"In other words, the state would offer such evidence only to mislead the jury," defense attorney Dick DeGuerin stated in a written motion to state District Judge Doug Shaver, who is presiding over the trial.

David Temple's murder trial began two weeks ago. The question of whether the gunshot residue will be allowed into evidence will be decided at a hearing Monday.

Neither the defense nor Harris County Assistant District Attorney Kelly Siegler, who is prosecuting the case, would comment on the motion.

Belinda Temple was shot to death in the couple's home on Jan. 11, 1999. According to his statement, David Temple told investigators that someone had broken into their home and killed her.

Detectives from the Harris County Sheriff's Office concluded that the break-in had been staged, and that Temple had been having an affair with a woman he later married.

During the murder investigation, officials collected several items belonging to David Temple — a shirt, a warm-up jacket and a pair of tennis shoes — for gunshot residue analysis at the FBI's national crime laboratory in Quantico, Va.

According to DeGuerin's motion, the shirt and jacket were not received by the FBI lab until May 2000, 16 months after the killing. It was almost three more years — April 2003 — before the agency received the shoes. During the time in between, the evidence had been stored by the sheriff's office "under unknown conditions," according to the motion. Rest of Article. . . [Mark Godsey]

Evidence Destruction Hault in Colorado

From denverpost.com: Colorado lawmakers and criminal-justice advocates called Wednesday for law enforcement officials statewide to halt destruction of biological evidence in major felony cases while legislative leaders pursue new laws to protect crime-scene specimens.

"We've got to make sure we've got the right people in prison and that victims can get justice," said state Rep. Cheri Jahn, D-Wheat Ridge, who is crafting a bill to preserve DNA and other forensic samples in murders and rapes for decades and provide penalties for trashing it.

Added state Sen. Ken Gordon, D-Denver: "We just can't tolerate negligence in this area." 

Rest of Article. . . [Mark Godsey]

Advances in Arson-Science Ignite Change in Investigation Techniques & Hope for Wrongfully-Convicted

Advances in arson science are spearheading changes in the way investigators interpret evidence from fire scenes.  Along the way, those who claim innocence to arson convictions are finding new hope.  The Philadelphia Inquirer featured a detailed, story on several cases in Pennsylvania, a couple of them capital, where the last decade's advances in fire scene analysis have cast doubt on convictions for arson and arson-murder.  One featured case is Han Tak Lee, imprisoned for over 15 years for setting the fire which killed his teenage daughter.  The application for allowance of appeal (state court equivalent of certiorari) on post-conviction is pending before the Pennsylvania state supreme court. Story here. . . [Michele Berry, thanks to Peter Goldberger]

The Debate Grows Concerning Kinship DNA Searches

From abanet.org: FBI crime lab director Joseph A. DiZinno recently stated that, under a new policy, the FBI will leave it to the states to decide whether to release any identifying information about an offender whose DNA profile closely matches a crime scene sample from another state. An advisory board of scientists is now reviewing the interim policy and will recommend whether the change should be made permanent within a few months.

While the FBI will notify investigators about close matches it finds using its present software, DiZinno says the agency has no plans to search its crime database using new software being developed for so-called kinship or familial searches. The software will allow DNA samples from the relatives of missing people to be compared with the DNA profiles of unidentified remains in an FBI database. The British have been using the technique to identify suspects for years, with some success.

Proponents of familial or kinship searching say it would help maximize the potential of DNA offender databases. They note that it would effectively increase the size of the database three or more times because every profile that is entered into it would contain information about at least two other people—the donor’s parents, along with his or her siblings and children. They also cite studies showing that convicted felons are more likely to have a close relative who has been incarcerated than members of the general population.

Henry T. Greely, a professor of law and genetics at Stanford University, says the legal and policy arguments for not doing such searches are that they may reveal family secrets; they may violate promises of privacy or confidentiality to those who gave DNA samples voluntarily; they may invade the suspects’ privacy, particularly if the person hasn’t been convicted of any crime; and they may put people at risk of being investigated simply because they have a relative who has been convicted of a crime. And he says those arguments are all quite weak.

Yet the idea of using DNA from offenders to help catch their relatives is a little disconcerting, Greely says, particularly given the fact that blacks, who constitute about 13 percent of the U.S. population, make up about 40 percent of the people in the national DNA database. That would put blacks as a group under much greater investigative scrutiny than whites. Rest of Article. . . [Mark Godsey]

Prosecutors' Catch 22, Forensic Science 101

Prosecutors in New Mexico say they face a Catch-22 situation because of delays in receiving DNA results from the state crime lab.  As prosecutors in New Mexico describe it--if they wait for the state crime lab to analyze DNA or other evidence before charging someone, they risk leaving someone who might be guilty on the street to commit other crimes.  But, if they file charges and go to trial without lab evidence, a guilty person might be acquitted or an innocent person might be convicted.

"Effectively, we can't get DNA analysis. We're not exaggerating the problem...It has been a nightmare," District Attorney Scot Key of Alamogordo.  In major cases, evidence is sent to private labs, but testing in a single cases easily can exceed $5,000. The crime lab has been backlogged for a decade, and now, each of the state's 19 forensic technicians would have to work 485 hours each just to handle what's backed up.  Sounds like more effective and efficient processes need to be put in place for collecting and processing evidence and more qualified forensic scientists are needed.

On the other hand, as eager as prosecutors may be to test DNA at the outset of the investigation, post-conviction DNA testing is often another story. [Michele Berry]

CrimProf David Moran Discusses New Evidence in a Kindergarten Teacher's Sexual Assault Case

From freep.com: Wayne State University School of Law CrimProf David Moran discusses the Free Press Review  that found new evidence in the case of kindergarten teacher James Perry sexually assaulting two boys in his school.

The prosecution's case was based almost entirely on the contradictory accounts of boys who were 4 and 5 in October 2005, when authorities determined the assaults occurred. That's an age where experts say children are susceptible to suggestion, and courts are often skeptical of their ability to separate truth from fiction.

The review found:

• Police never questioned three instructors in a special-education classroom where the assaults allegedly occurred. All three now say the crime could not have occurred there because the classroom was occupied at all times that day by students and at least one teacher. Prosecutors have argued consistently that the assaults took place in an empty classroom during lunch.

• In court testimony, an Oak Park detective told jurors he recognized Perry from a previous case. The jury never was told that Perry was cleared in that case, has no criminal record and previously had never been charged with anything.

• Contrary to the advice of counselors, the boys' mothers repeatedly questioned the boys -- on at least one occasion together -- about the attacks. Experts say such questioning, even if well-intentioned, can taint or influence the accounts of young children.

• During the six-day trial, Perry wore a global-positioning tether that was clearly visible to jurors. Perry's trial lawyer never objected to the device, which is usually hidden to avoid an implication of guilt.

Moran said doubts about where the crime occurred weakened the case and the prosecutor's credibility. "That argument is an insult to the intelligence of the judge," Moran said."When you prove that it happened in a specific place and new evidence proves that it couldn't have happened there, that not only undermines the location, it undermines whether it happened at all."

Rest of Article. . . [Mark Godsey]

Michigan: Graphic Crime Scene Photos Admissible

In Michigan, a Macomb County Circuit judge ruled this morning that graphic crime scene photos can be admitted as evidence against an accused murderer.  The defense attorney, of course, argued that the photos would prejudice the jury against his client, while the prosecutor argued that the jury needed to see the photos.   

Crime scene photos, like other forms of demonstrative evidence, are routinely the subject of 403 objections, but in most circuits, typically the gruesome nature of the photo isn't enough to render the photo inadmissible; the analysis usually hinges on whether the photo is relevant to a disputed point or assists a jury in a factual determination.  For example, in this case, graphic photos were admissible because the defendant was charged with mayhem and the photos related to an element of mayhem, which requires a showing that the body was seriously disfigured by mutilation. Here's another case collecting some law (which may not be current) from various circuits about the admissibility of graphic photographs. [None of the above is legal advice] [Michele Berry]

The Neon Sign Reads: REVERSIBLE ERROR

A Michigan lawyer was held in contempt and fined for phrasing his cross examination questions as declarative statements, a perfectly legitimate technique. (See Pozner & Dodd and precedents below). Now he's being forced to appeal.  Here is how the cross proceeded:   

Q: Okay. There  was never a formal partnership actually done up?
A:  No.
Q: And, in  fact, Mr. E was treated more or less like an employee by the company?
A: In what  respect?
Q: He was paid  weekly?
A: That was  what was agreed upon because he didn't have any money.
Q: And, you  were paying him five hundred dollars per week to go out and do all this towing?
A:  Correct.
Q: And, as you  indicated, at some point you stopped paying Mr. E?
A:  Yes.

This method of cross-examination continued until the following question was posed by defense counsel:
Q: Okay. You made your first phone call to Mr. E on the 16th, September 16?
A: I believe - - yes.
THE COURT: Mr. M, I'm not going to warn you again. From now on every time something comes out of your mouth that's worded as a statement, I'm fining you  one hundred dollars. Is that clear?
MR. M: Your Honor, it's- -
THE COURT: Start them with; "were you," "did you," put a "correct," or "is that right" on the end of it. That's fine but I'm not going to rely on your inflection to know if you're testifying or questioning. Is that clear?
MR. M: Your Honor, it's - - it's Pozner and Dodd. It's It's acceptable
THE COURT: Is that clear?
MR. M - - cross-examination.
THE COURT: It's not acceptable in my courtroom. If you don't like it you can appeal me after I'm done fining you. Is that clear?
MR. M: Yes, your honor.
[Tr. at 13-14]

Counsel for petitioner engaged in the lower court's requirement of adding a phrase of questioning for the remainder of the cross-examination. Then the following questions were posed to the witness by defense counsel, at which time defense counsel was held in contempt:

Q: You never specifically said to Mr. E that he did not have permission to keep the computer, correct?
A: That is correct.
Q: Okay. And, you never specifically told Mr. E that he did not have permission to keep the GPS?
A: My messages were he - -
THE COURT: That's one hundred. Phrase it in a question so the witness can answer.  Are you done questioning this witness?
MR. M: No, your Honor.

Here are a couple precedents upholding the legitimacy of the technique:

Ohio v. Roberts, 448 U.S. 56, 70-71 (1980) ("counsel's questioning clearly partook of cross-examination as a matter of form; footnote references to the cross:
" 'you never gave them. . .'; 'this wasn't then in the pack'; 'you havenever [not] seen [discussed; talked]. . .you never gave. . .'").

and

H.L. v. Matheson, 450 U.S. 398, 401-02 (1981). The witness gave ". . . monosyllabic answers to. . . leading  questions." and here is the example in the case:
Q: At the time that the Complaints in this matter was signed, you were pregnant?
A: Yes
Q: You had consulted with a counselor about that  pregnancy?
A: Yeah.
Q: You had determined after talking to the counselor  that you felt you should get an abortion?
A: Yes.
Q: You felt that you  did not want to notify your parent.
A: Right.

[Michele Berry, thanks to NACDL & Jay Clark]

More Money, More Problems: Firearms Experts Needed

Let's hope the surge in forensic science classes includes some specialty classes in bullet analysis.  In Indianapolis, even after the courts have given Marion County enough money to hire two firearms experts, the lab is still left shorthanded and backlogged.  Marion Superior Court issued an emergency order Aug. 9 that authorizes the crime lab to hire two more examiners and pay them up to $80,000 a year -- about $20,000 more than the typical salary.  For once, it's not a lack of money--there just aren't enough of these highly sought experts who match bullets to the guns that fired them.  Currently, the Bureau of Alcohol, Tobacco, Firearms and Explosives runs the only school in the country, and it graduates 12 students each year. Read the story here from IndyStar.com...[Michele Berry]

Lawmakers try to Reduce DNA Backlog Instead of Other Forms of Data

From Stateline.org: State and federal lawmakers are trying to reduce backlogs in unanalyzed DNA evidence even as more common forms of forensic data are being neglected, crime lab directors say.

"Analysis of DNA evidence accounts for only about 5 percent of most crime labs’ work,"said Earl Wells, director of the American Society of Crime Lab Directors (ASCLD) and head of the South Carolina Law Enforcement Division’s forensic services unit. "Lab scientists spend much more time analyzing other forensic evidence such as controlled substances and fingerprints," he said.

State and federal legislators have focused their attention on the elimination of DNA backlogs because DNA “happens to be the hot topic today,” Wells said. At the same time, non-DNA evidence sits unexamined in most of the nation’s estimated 350 publicly funded crime labs, Wells said – slowing down all forensic analysis. More than 200 of those labs are state or regional facilities. Rest of Article. . . [Mark Godsey]

Bullet Serial Numbering Bill Gains Support

From latimes.com: Los Angeles Mayor Antonio Villaraigosa and Police Chief William J. Bratton added their support Wednesday to a bill requiring gun manufacturers to build handguns that would stamp bullet casings with serial numbers — an innovation intended to speed investigations by making it easier to link bullets to the weapons that fired them.

The bill, introduced by Assemblyman Paul Koretz (D-West Hollywood), would only affect the manufacture of new semiautomatic handguns, but Bratton and others said it would aid officers in investigating gun violence.

Proponents say the etching technology would imprint each gun's serial number on bullet casings when the firing pin of the weapon struck the cartridge. They argue that such microscopic imprinting could not be easily tampered with because other identifying marks would reveal what gun fired the bullet. By cross-checking bullet casings with existing state databases on gun purchases, authorities say they could quickly figure out what gun had fired the bullets recovered from a crime scene.

Rest of Article. . . [Mark Godsey]

Expanding DNA Bank: Police Proficiency vs. Privacy

The nation's databank of DNA "fingerprints" is growing by more than 80,000 people every month, giving police an unprecedented crime-fighting tool while prompting warnings that the expansion threatens constitutional privacy protections.

With little public debate, state and federal rules for cataloging DNA have broadened in recent years to include not only violent felons, but also perpetrators of lesser crimes and people who have been arrested but not convicted.

Now some in law enforcement are calling for a national registry of every American's DNA profile against which police could instantly compare crime-scene specimens. Advocates say the system would dissuade many would-be criminals and help capture the rest. Opponents say that the growing use of DNA scans is making suspects out of many law-abiding Americans and turning the "innocent until proven guilty" maxim on its head. More. . . [Mark Godsey]

NPR: AUSAs and the Attorney Client Privilege

Weekend Edition Sunday, May 21, 2006 · Federal prosecutors are trying to convince several current targets to give up attorney-client privilege in exchange for easier treatment. The American Bar Association says the tactic is not fair.   Listen to story here.  [Mark Godsey]

NACDL's Free Online Course in Forensic DNA

The National Association of Criminal Defense Lawyers (NACDL) is offering a free online course in Forensic DNA for Officers of the Court. This new interactive resource tool, which provides education and assistance to prosecutors, defense attorneys and judges when using forensic DNA in  cases, is available online free of charge through http://www.dna.gov. The  course consists of 15-minute modules and covers the biology of DNA, DNA laboratories, forensic databases, victim issues, DNA evidence at trial and post-conviction DNA cases. You can get to the online course and registration at: http://www.dna.gov/training/otc. [Mark Godsey]

4th Cir: Prosecutor's Threats in 1970s Case May Lead to New Trial

From CNN.com: Raleigh, NC (AP): A panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, granted a motion Friday allowing a former Green Beret doctor convicted of the 1970 murders of his wife and daughters, to present the new evidence that the prosecutor threatened a witness during his trial over 30 years ago.  This new evidence could result in a new trial. Story. . . [Mark Godsey]

Utah: State Crime Lab Eliminates Gunshot Residue Testing

Add the Utah State Crime Lab to the list of underfunded, struggling state crime labs.  The lab has recently eliminated gunshot residue testing, in order to concentrate on DNA, fingerprint, and ballistics analyses.  Although GSR testing only shows the presence or lack of nitrates, not necessarily who fired a gun, the elimination of GSR testing is cause for concern among Utah defense attorneys; they emphasize that sentencing drastically differs for the triggerman and the accomplice in a shooting.  On the other hand, GSR testing has been criticized as junk science here and here. [Mark Godsey]   

NY Court of Appeals Grants New Trial for Lack of Cross-Examination Opportunity

From New York Law Journal: "New York's Court of Appeals Tuesday overturned the conviction of Andrew Goldstein in the notorious subway station murder of Kendra Webdale, holding that the mentally ill defendant's right to a fair trial was abridged when a psychiatric expert for the prosecution told the jury of hearsay conversations she had had with witnesses who were not subjected to cross examination. Tuesday's 6-1 ruling was grounded in Crawford v. Washington, 541 US 36, the U.S. Supreme Court's 2004 confrontation clause landmark opinion that generally barred the use of so-called "testimonial" hearsay in criminal cases unless the defendant has an opportunity to question the witness." Read more from Law.com. . . [Mark Godsey]

High Drama in Texas Courtroom as Prosecutor Reenacts Stabbing

Texas' 14th Court of Appeals ruled that a prosecutor's dramatic courtroom reenactment of the stabbing death of a defendant's husband, on the couple's actual bloodstained bed, did not unfairly prejudice the defendant.  The most controversial part of the appellate court's decision was its refusal to consider a DVD recording of the reenactment; instead the court relied only on the trial testimony that detailed the reenactment.  Counsel for the Defendant, Wright, explained that because Wright's new trial motion was denied without a hearing, she never had the opportunity to present the DVD as evidence. The case is Susan Lucille Wright v. State. Full Story from Law.com. . . [Mark Godsey]

SCOTUS to Decide Whether to Fill in Crawford's Blank Spots

From Law.com: (The National Law Journal): "The outcomes of thousands of criminal cases hang in the balance while the U.S. Supreme Court decides whether to clarify when out-of-court accusations may be used in lieu of in-court testimony without violating defendants' Sixth Amendment right to confront witnesses.

Both the National District Attorneys Association's point man on the confrontation clause and the National Association of Criminal Defense Lawyers agree that the time is ripe for the court to satisfy its promise to fill in the blanks it intentionally left when it decided Crawford v. Washington, 541 U.S. 36 (2004).

Two petitions for certiorari that raise confrontation clause issues -- in the context of excited utterance exceptions to hearsay rules -- are pending before the court. Both Davis v. Washington, No. 05-5224, and Hammon v. Indiana, No. 05-5705, domestic violence cases, are listed for action by the court at its Oct. 28 conference. The court's decision on whether it will hear the cases is expected on Oct. 31.

Before Crawford, any hearsay could come in -- even when a witness did not testify -- if the hearsay exception was firmly rooted and traditional, and if a judge found the statement to be reliable and trustworthy in the circumstances in which it was made. Ohio v. Roberts, 448 U.S. 56 (1989).

Crawford bars testimonial hearsay introduced by the prosecution unless the defense has an opportunity to question the person who made the statement, and that person is unavailable at the time of trial. With some exceptions, the court explicitly decided that it would 'leave for another day' a more specific definition of 'testimonial.'...

Barbara Bergman, president of the NACDL and a visiting professor at Washington's Catholic University of America Columbus School of Law, noted the "tremendous confusion in federal and state court decisions as to the meaning of 'testimonial' in the context of Crawford.

"Judges have struggled to see where particular cases fit -- like 911 calls -- that fall between the cracks of the concrete definitions of testimonial that the court laid out," Bergman said." Story... [Mark Godsey]

Here's a chart from The National Law Journal, of where the various courts currently stand:

Where courts stand
Admissibility of "excited utterances" that describe criminal activity to governmental agents under the confrontation clause.

Nontestimonial
Statement can be used at trial without the accuser or witness testifying: 1st and 8th circuits
Intermediate state courts in: Colorado Ohio Tennessee
It depends
Circumstances dictate whether or not the statement can be used at trial without the accuser or witness testifying: 2nd and 9th circuits
High courts in: Connecticut District of Columbia Indiana Maine Minnesota Nebraska North Carolina Washington
Intermediate state courts in: Alabama Alaska California Michigan New York Pennsylvania Texas Wisconsin
Testimonial
Statement cannot be used at trial without the accuser or witness testifying: 6th and 10th circuits
High courts in: Georgia Massachusetts
Intermediate state courts in: California Florida Hawaii Illinois Kentucky Ohio Texas  [Mark Godsey]

"Stop Snitchin" Shirts Stop Two Criminal Trials: CrimProf Natapoff on the "Snitching" Phenomenon

From Pittsburgh's Post-gazette.com: "Two criminal trials this month were disrupted by an article of clothing.  A witness called to testify against three men on trial for conspiring to kill him was ejected from Allegheny County Common Pleas Court because he came in wearing a T-shirt that said "Stop Snitchin." Without his testimony, prosecutors were forced to withdraw charges against the three defendants.

The following day, during the sentencing phase of a federal drug case, an assistant U.S. Attorney paused to show the judge two T-shirts vilifying witnesses who gave prosecutors information about a cocaine kingpin.  One shirt had a photograph of a witness, an admitted drug dealer, who eventually won a reduced sentence for cooperating with authorities. Above his image and a photo of another cooperating witness were the words "No snitching allowed." On the opposite side, it read "Niggas Just Looking For a Deal" and, once again, "Stop Snitchin." 

The back-to-back incidents were no coincidence. The shirts belong to an urban fashion trend that hit Boston and Baltimore about a year ago and is now taking hold on the streets of Pittsburgh...

Going to police with information about a buddy who's breaking the law is taboo in gang culture and it almost implicitly means you're asking for retribution, according to police and gang experts.  But since the War on Drugs in the 1980s, law enforcement officials have relied more heavily on informants in their sting operations, said [CrimProf Alexandra Natapoff of Loyola Law School] who published a University of Cincinnati Law Review article on the phenomenon. She said sentencing laws have pushed more people to snitch to save themselves from spending years behind bars.

With mandatory sentences attached to drug crimes, there are more incentives for low-level players to snitch on the top dogs. Informants who help prosecutors significantly can sometimes meet a standard called "substantial assistance" and qualify for significantly shorter sentences.

Garry P. Smith...the man sentenced in federal court here this month -- and pictured on the T-shirt -- testified despite the anti-snitching shirts people were wearing around his neighborhood and despite a reputed $100,000 bounty on his head. Because of his cooperation, Mr. Smith got his sentence cut from 20 years to seven...

According to data from the U.S. Sentencing Commission, 40 percent of drug trafficking prosecutions in which defendants got a sentence of 10 years or more involved "substantial assistance to authorities" from informants. Dr. Natapoff found that the pressure to become an informant has a disproportionate effect on the black community, because one in three black men between the ages of 20 and 29 are under court supervision at any time. In her article, she estimated that more than a quarter of black men in poor communities are under pressure to inform on their peers.

"Snitching becomes a fact of life," she said. "At every barbecue, at every holiday party, someone is under law enforcement pressure to snitch. That in my mind is a destructive public policy."

The Stop Snitching movement took root in the wake of those prosecutions. A handful of rap stars, like Young Jeezy, helped spread the message with lyrics that shunned the idea of turning on your fellow gangstas. Rapper Jim Jones' video was banned in Canada because people in the video were donning the now-famous T-shirts. Carmelo Anthony of professional basketball's Denver Nuggets appeared in "Stop Snitchin," an underground documentary for sale on DVD that profiled drug dealers in his hometown of Baltimore talking about the dangers of "ratting" on people.

The anti-snitching T-shirts took off from there, promoted on Web sites like by AntonioAnsaldi.com and StopSnitching.com." Full Story... [Mark Godsey]

Michigan to Allow Prior Bad Acts for Propensity Inference in Child Molestation Cases

It will join California in following the federal rules in this respect.  Story . . .  [Mark Godsey]

Prosecutors Shouldn't Wield Guns in Court

From Law.com:  "Pennsylvania prosecutors should think twice about displaying during an opening statement a handgun that will later be entered into evidence during a trial, a state appeals court panel has suggested in a case of first impression.  In Commonwealth v. Parker, a three-judge panel of the Superior Court ruled that although a Philadelphia assistant district attorney should not have been permitted by the trial court to display the gun allegedly belonging to Maurice Parker, the error was harmless, given the weight of the evidence brought against Parker.  "We do, however, caution against the use of such tactics by prosecutors in the future," Judge John T. Bender wrote.  "The display of the gun by the prosecution could not honestly be said to serve any legitimate purpose except to inflame the jury," he added later."  More . . .  [Mark Godsey]

Dallas Prosecutors and Batson

From the washingtonpost.com:  "DALLAS -- As recently as 2002, Dallas County prosecutors were excluding eligible blacks from juries at more than twice the rate they turned down whites, a newspaper reported Sunday.  The issue surfaced earlier this year when the U.S. Supreme Court overturned the 1986 murder conviction of a black man accused of killing a white motel clerk, saying the Dallas County jury that convicted Thomas Miller-El was unfairly stacked with whites.

The Supreme Court cited a manual, written in 1969 and used until at least 1980, that instructed prosecutors on how to exclude minorities from Texas juries. Justice David Souter wrote that racial discrimination in the Miller-El case was unquestionable.  Bill Hill, who took over as district attorney in 1999, said his prosecutors don't exclude jurors on the basis of race.  "The statistics may show we strike more blacks, but it's not because they're black," Hill said. "It's because for one reason or another, they (prosecutors) don't think they are going to be fair and impartial."  Blacks still served on Dallas juries in proportion to their population, the newspaper's study found, because defense attorneys excluded white jurors at three times the rate they rejected blacks.

The Dallas Morning News examined jury selection in cases from 2002, reviewing more than 6,500 juror information cards, studying transcripts of juror questioning, and analyzing lawyers' strike patterns.  It published the first part of a three-part series on jury selection Sunday.

The analysis found that prosecutors treated the responses of blacks and whites to key questions differently. A review of transcripts of juror questioning, available in 59 of the 108 cases studied, showed that:

_Juror views on rehabilitation were the most important factor in determining whom prosecutors rejected, but they excluded 79 percent of blacks who favored rehabilitation over punishment or deterrence, compared with 55 percent of whites who did.

_Prosecutors excluded 78 percent of blacks who said they or someone close to them had had contact with the criminal justice system, compared with 39 percent of whites.

_Prosecutors rejected all blacks who said they or someone close to them had had a bad experience with police or the courts, compared with 39 percent of whites who gave the same response. About 2 percent of all respondents gave that response.

More . . .  [Mark Godsey]

CrimProf Tom Lininger Authors New Oregon Law to Allow Hearsay in Abuse Cases

In response to Crawford v. Washington, University of Oregon's Tom Lininger wrote a new law that allows a party to introduce hearsay statements against opponents who wrongfully caused a witness's unavailability.  "The decision in Crawford v. Washington intended to claify the Sixth Amendment right to confront one's accuser by limiting out-of-court statements by absent witnesses.  But battered women, seniors, and children are often frightened to testify in open court against their abusers--and this fear is justified.  Lininger said Oregon had to fix state law so that it protected a defendant's constitutional rights while allowing victims to stay out of physical reach of their assailants. 'If a witness isn't available because she has been threatened by the defendant, then the defendant shouldn't be protected by hearsay rules.  The Sixth Amendment is a shield, not a sword,' Lininger said.  In a prior legislative session, Lininger authored a successful bill that created new criminal penalties for drug-induced rape." More on Lininger and Oregon's new law... [Mark Godsey]

Minnesota: Former Assistant Crime Lab Director Avoids Prison for Stealing Cocaine

From TwinCities.com: (St. Paul Pioneer Press): "A former assistant director of Minnesota's crime lab was sentenced Friday (July 8) to one year in the Ramsey County workhouse — a far lighter sentence than possible — for stealing 2 pounds of cocaine from an evidence locker to feed his own addiction.  Judge Salvador Rosas sentenced David Bruce Petersen to seven years in prison, but that sentence was stayed pending completion of an unusually long term of 30 years' probation.  With good behavior, the judge said, he will consider allowing Petersen to leave the workhouse after three to six months and be subject to home confinement for the remainder of the year. Rosas also gave Petersen credit for four days served, a $3,000 fine and said he must abstain from all nonprescribed drugs and alcohol and submit to drug testing." Story... [Mark Godsey]

Indianapolis: New Private DNA Lab Opens Today

From the IndyStar.com: A former Marion County prosecutor and a former leader at the local crime lab will officially open their private DNA testing laboratory (Strand Analytical Laboratories) in Indianapolis today....Experts say the private lab, which would be the first of its kind in Indiana, could help address the problem of delays and backlogs in DNA testing locally and across the country.  Mike Medler, director of the Marion County crime lab, welcomes the new venture and hopes it will help cut the county's current backlog of 111 DNA tests....Private labs across the country are being called upon to help public labs catch up on DNA testing. Long testing times have often been blamed for causing trial delays" among other problems. Story... [Mark Godsey]

Colorado Supreme Court Holds That Jurors May Question Witnesses in Criminal Cases

Improper questions allowed by the judge are reviewed under a harmless error standard.  Decision here.  [Mark Godsey]

Interesting Case at Tulane Criminal Law Clinic

From a press release:  "Student attorneys from the Tulane Criminal Law Clinic are planning an appeal to the United States Supreme Court over a ruling that admitted a report into evidence without its author ever taking the stand.  The issue is of nationwide import since most states have enacted statutes that seek to conserve prosecution and police resources by keeping laboratory workers in the lab and out of the courtroom. In the Clinic's case, the State relied upon such a report to prove that the substance found in a a zip-lock baggie was marijuana.  Based on that proof, the Defendant Robert Cunningham was  convicted of misdemeanor marijuana possession.  "The right to confront and cross-examine a witness devolves upon a criminal defendant the minute the state chooses to prosecute him," Tulane Criminal Law Clinic Director Pam Metzger told the New Orleans Times-Picayune in its June 21st edition."  [Mark Godsey]

CA Supreme Court Holds Defendants Are Entitled To Personnel Records Of Officer Accused of Misconduct

Warrick v. Superior Court, decision here.  [Mark Godsey]