July 26, 2007
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]
January 17, 2007
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]
January 01, 2007
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]
November 21, 2006
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]
November 02, 2006
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]
October 12, 2006
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]
September 28, 2006
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?
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?
Q: And, as you indicated, at some point you stopped paying Mr. E?
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. . .'").
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?
Q: You had consulted with a counselor about that pregnancy?
Q: You had determined after talking to the counselor that you felt you should get an abortion?
Q: You felt that you did not want to notify your parent.
[Michele Berry, thanks to NACDL & Jay Clark]
September 05, 2006
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]
August 30, 2006
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]
August 10, 2006
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]
June 07, 2006
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]
May 22, 2006
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]
February 28, 2006
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]
January 16, 2006
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]
January 15, 2006
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]
December 21, 2005
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]
December 01, 2005
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]
October 27, 2005
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.
|Statement can be used at trial without the accuser or witness testifying: |
1st and 8th circuits
|Intermediate state courts in: |
|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:|
District of Columbia
|Intermediate state courts in: |
|Statement cannot be used at trial without the accuser or witness testifying: |
6th and 10th circuits
|High courts in: |
Intermediate state courts in:
October 18, 2005
"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]
September 05, 2005
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]