March 22, 2008
We The Jury: Judge Denies Petition For New Trial Despite Evidence Of Jurors' Use Of Racial Slurs
A Pennsylvania judge has denied a petition by Fabian Smart appealing his murder conviction in the beating death of a Lock Haven area man nine years ago. Smart was convicted of first degree murder in connection with the death of Jason McMann and sentenced to life imprisonment without the possibility of parole. Smart, however, recently brought a Post-Conviction Collateral Relief Act petition.
Smart, who is African-American, claimed, inter alia, that a jury member contacted him after the trial and told him that jury members used racial slurs which were brought up "early and often." The judge considering the petition, Judge J. Michael Williamson, noted that this issue was controlled by Pennsylvania Rule of Evidence 606(b), which indicates in relevant part that "[u]pon an inquiry into the validity of a verdict,...a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions in reaching a decision upon the verdict or concerning the juror’s mental processes in connection therewith, and a juror’s affidavit or evidence of any statement by the juror about any of these subjects may not be received. However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge and experience, were improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror."
Thus, a juror cannot testify after a verdict is rendered that, inter alia, jurors ignored jury instructions, misconstrued the elements of a crime, or considered testimony that was stricken from the record because these are internal to the jury deliberation process. After a verdict, however, a juror can testify that, inter alia, a friend of the defendant threatened him or that a newspaper article discussing inadmissible evidence found its way into the jury room because these are external to the jury deliberation process. Courts have found that racial slurs are internal to the jury deliberation process and thus inadmissible under Federal Rule of Evidence 606(b) and state counterparts, and this is what Judge Williamson did, concluding that "[a] juror may not testify as to any matter or statement occurring during the course of the jury's deliberations."
What complicates the issue, however, and what Judge Williamson apparently didn't address, is that some courts have expressed the viewpoint that, in spite of Rule 606(b), precluding evidence of racial slurs used by jurors might violate the Fourteenth Amendment. See, e.g., Perkins v. LeCureux, 58 F.3d 214, 222 (6th Cir. 1995). On the other hand, other courts have held that racial slurs used by jurors are inadmissible under Rule 606(b) and not admissible based upon the Fourteenth Amendment. See, e.g., United States v. Roach, 164 F.3d 403, 413 (8th Cir. 1998) (finding that juror's proffered testimony that other jurors used racial slurs against Native Americans during trial was inadmissible under Rule 606(b)).
In reviewing the Pennsylvania case law, I was unable to find any case applying the Fourteenth Amendment analysis to a Rule 606(b) case, but I did find an interesting jury bias case decided in the wake of 9/11. In Tabchi v. Duchodni, 56 Pa. D. & C.4th 238 (Pa.Com.Pl. 2002), an Arab husband and wife and their three children were involved in a car accident and brought a civil action against the other driver for their injuries. They thereafter moved for partial summary judgment on the issue of liability, and their motion was granted; the defendant was held solely responsible for the accident, leaving only the issue of damages to be tried before the jury. Id. at 239. At that trial, however, which began on September 24, 2001, "the jury returned a verdict in the amount of zero dollars as to each of the five plaintiffs, even though injuries to two of them were uncontroverted." Id.
After the jury rendered its verdict, one of the jurors approached plaintiffs' counsel and allegedly informed him of disparaging remarks concerning plaintiffs' Arabic heritage and culture made by other members of the jury during the course of their deliberations. Id. at 241. Several days later, the court received a letter from the jury foreperson which claimed that the ethnicity of the plaintiffs was openly discussed and apparently considered as a factor in the jury's deliberations. See id. The plaintiffs thereafter moved for a new trial, alleging, inter alia, that this prejudice made the jury's verdict fatally flawed. See id.
The court rejected this claim, finding that the "[p]laintiffs' contention that the jury was influence by anti-Arab bias and bigotry in the course of its deliberations is based solely upon the allegations of other jurors. However, such prejudice in the deliberative process, if it existed, and as odious and repugnant as it would be, is not and external or extraneous input that would override the sacrosanct nature of jury deliberations." Id. at 250 (emphasis added). In my mind, the Duchodni case clearly supports the proposition that the Fourteenth Amendment analysis should be applied to Rule 606(b) cases to ensure that cases are not decided based upon racial prejudice.
March 21, 2008
Device Under The Influence: Illinois Judge Finds Passive Alcohol Sensor Can Be Used To Gain Probable Cause
Last week, Kane County Judge Allen Anderson became the first Illinois judge to hold that the PAS IV, a passive alcohol sensor, can be used to put a suspected drunk driver through sobriety tests. Several Kane County, Illinois police departments use the PAS IV during traffic stops. The sensor looks like a heavy duty flashlight, but it uses a small intake valve to measure alcohol in the air. When alcohol is detected on a fuel cell, it lights up the PAS IV device. The device is useful because a police officer might be talking with a motorist he or she instinctively believes has been consuming alcoholic beverages, but the officer is unable to establish probable cause. An officer equipped with the PAS IV can hold it in close proximity to the vehicle, and by taking a sample of air the PAS IV is able to detect the presence of alcohol either on the driver’s breath or within the vehicle with an alleged 97 percent accuracy rate.
The driver does not need to blow into the device; instead, the device draws in air through a port and past a fuel cell, which will generate a small electric current if alcohol vapor is present. The current is amplified electronically and becomes visible on a display on the outside of the device. Judge Anderson agreed with the argument of Kane County Assistant State's Attorney Steve Sims that the fuel cell technology is not new and that the U.S. Department of Transportation evaluated an earlier model of the passive alcohol sensor and determined it to be reliable. He thus ruled that the PAS IV can be used to gain the probable cause necessary to conduct sobriety tests even though it does not provide a blood alcohol reading.
All of this makes sense to me because it seems that the PAS IV is reliable enough to meet the probable cause standard in that its results would warrant a prudent person's belief that the driver had committed a crime. But the article on the case (I don't have access to the opinion) indicates that "Judge Allen Anderson had to determine whether the scientific principles behind the technology are sufficiently established to have gained general acceptance." This is the Frye test for determining whether expert evidence is admissible at trial, but it is well established that the rules of evidence do not need to be applied to determine whether probable cause exists. See e.g., Brinegar v. United States, 338 U.S. 160, 174 n.12 (1949). In other words, a police officer can develop probable cause from evidence which would be inadmissible at a subsequent trial. I thus see no reason why Judge Anderson should have applied the Frye test to the PAS IV, but maybe something was lost in translation to the article.
March 20, 2008
Open In Case Of My Death, Take 3: Wisconsin Manufacturer's & Commerce Issues Attack Ad Against Dissenting Justice In Mark Jensen Case
I've posted entries about the Mark Jensen murder trial on January 7th and February 22nd. You might recall that this was the case where Mark Jensen was accused of poisoning his wife with two doses of ethylene glycol, commonly known as antifreeze, so that he could be with his new girlfriend. The key evidentiary issue in the case concerned the admissibility of a note that the wife gave to a neighbor which indicated that Mark should be the first suspect if she died. This evidentiary issue eventually reached the Supreme Court of Wisconsin, and the majority opinion in State v. Jensen, 727 N.W.2d 518, 521 (Wis. 2007), held that the note was admissible under the forfeiture by wrongdoing doctrine, which allows for hearsay statements by prospective witnesses to be admissible when the defendant rendered the prospective witness unavailable to testify at trial.
In his opinion concurring in part and dissenting in part, Justice Louis B. Butler, Jr. countered that the note was inadmissible because the forfeiture by wrongdoing doctrine requires a showing of intent by the witness to render the prospective witness unavailable to testify at trial. Thus, according to Justice Butler, the doctrine would apply in the witness tampering scenario, where a defendant who allegedly committed a crime subsequently kills a prospective witness, but it would not apply where the prospective witness is the victim herself.
The majority opinion, however, carried the day, the note was admitted into evidence at Jensen's trial, and Jensen was convicted of murder in the first degree. The story, however, doesn't end there as Justice Butler is currently up for re-election. Apparently, Wisconsin Manufacturers & Commerce (WMC), the state's largest business lobby, has put forth a new ad which charges that Butler "almost jeopardized the prosecution of a murderer because he saw a technicality." "Thankfully, he didn't get his way," the ad says, before advising viewers to call Butler to "tell him needless technicalities are dangerous for Wisconsin." Apparently, WMC has taken this approach because it feels that criminal cases are important to maintaining a health business climate.
The ad, which can be found linked in this article, makes it seem as if Justice Butler applied some obscure law, such as the laws listed on the Crazy Laws website (example: the Alaskan law that Moose may not be viewed from an airplane). Instead, as readers of this blog are well aware, the majority's opinion fell on one side of a sharp judicial split over how to apply the forfeiture by wrongdoing doctrine while Justice Butler's decision fell on the other. In fact, the issue is so divided and unclear that the Supreme Court granted cert in Giles v. California to resolve the very issue that split the majority and dissenting opinions in State v. Jensen. Personally, I side with the majority opinion and again direct readers to the excellent new article by my colleague Ralph Ruebner and law student Eugene Goryunov, which addresses this issue and also sides with the majority. That said, there are certainly strong arguments supporting Justice Butler's opinion, which is why many courts have rendered opinions coming to the same conclusion. Indeed, I wouldn't be surprised in the least if the Supreme Court rendered an opinion siding with Justice Butler, not the majority.
All of which means that the WMC attack ad is misleading at best, which I suppose is to be expected in the political context of today. But hopefully, the citizens of Wisconsin are not swayed by an argument with much less substance than Justice Butler's opinion in State v. Jensen.
Be Kind, Rewind: Connecticut Considering Bills Requriring Videotaping Of Interrogations And New Identification Procedures
The Connecticut General Assembly is currently considering bills on police lineups and interrogations which I strongly support. The first bill requires that police officers conducting photo and live lineups not know which person in the lineup is the suspect. The hope is that the bill would avoid the possibility that the witness is influenced or coerced. The bill also mandates that all people and photographs in a lineup be viewed one at a time rather than simultaneously. If the bill were passed, eyewitnesses would be advised that the suspect might not be in the lineup and that they should not feel compelled to make an identification. These recommendations come directly from the innocence movement, and I will again direct readers to Duke University Law School Professor Robert P. Mosteller's article on why these identification procedures are essential to increasing accuracy in identifications.
Under the second bill, all interrogations of people in police custody for allegedly committing capital, Class A, or Class B felonies would be videotaped. Unrecorded statements would be inadmissible as evidence in a criminal proceeding. The purpose behind this bill is to corroborate defendants' claims of police coercion, deception, etc. when such misbehavior occurred and to refute such claims when such misbehavior did not occur. For those still asking the question of what Barack Obama has done legislatively, this provides a nice opportunity to note that he was able to get similar legislation passed despite severe opposition.
I think both of these bills help to increase the likelihood that innocent people are exonerated while guilty people are incarcerated.
March 19, 2008
Y For YouTube: U.K. Court Deems YouTube Video Inadmissible In Guy Fawkes Night Fireworks Explosion Case
As far as I can tell, the trial of Martin Winter in a Lewes' Magistrates' Court has resulted in the first evidentiary ruling on the issue of the admissibility of a YouTube video. Winter was the owner of Festival Fireworks, a fireworks supplier and fireworks display organizing company near Halland, East Sussex in England. During Guy Fawkes or Bonfire Night (check out V for Vendetta for further explanation), there was an explosion at Festival Fireworks' warehouse, resulting in several people being injured and two fire crew members being killed as they tackled the blaze.
The 50 year-old Winter, however, is not on trial for the explosion, but his ensuing conduct. After the explosion, Sussex police inspector Martin Pattenden set up a cordon, which separated Winter from other members of the Borough Firework Society. According to the prosecution, Winter thereafter swore at Pattenden and acted aggressively while carrying a flaming torch. Another member of the police also claimed that he smelled alcohol on Winter's breath. Winter was thus charged with disorderly behaviour and resisting arrest.
The prosecution sought to prove its case in part through video footage of Winter's arrest, which appeared on YouTube. You can find that footage linked in one of the articles reporting on the trial. The court, however, ruled that the footage was inadmissible. As I noted before, I think that this is the first case ruling on the admissibility of a YouTube video. A quick Westlaw search reveals only one state case mentioning YouTube, and that case merely makes reference to the "YouTube era." Adams v. City of San Bernardino, 2007 WL 2422098 (Cal. App. 4 Dist. 2007).
There are 17 federal cases mentioning YouTube, but it appears that none involved the admissibility of YouTube videos. Instead, they consist of cases where, inter alia,:
-someone alleged breach of copyright based upon posting of a YouTube video: See, e.g., Doe v. Geller, 2008 WL 314498 (N.D. Cal. 2008); or
-a judge felt compelled to direct his captive audience to a YouTube video that had nothing to do with the case at hand: See Central Mfg., Inc. v. Brett, 492 F.3d876 (7th Cir. 2007), for Judge Evans' gratuitous recounting of the George Brett pine tar incident along with a link to a YouTube video, in a case that dealt with a dispute involving George Brett and a baseball bat, but which otherwise had no connection to the video/incident.
Unfortunately, the articles on the case don't make clear why the court deemed the video inadmissible, and I can only speculate that it might have done so based upon authentication issues or claims that Lewis' right of privacy would have been violated by its admission. It would seem to me, however, that in the United States, the odds of such evidence being deemed admissible would be much higher, but only time will tell.
Vision Qwest: Tenth Circuit Reverses Joseph Nacchio's Convcitions Based Upon Improper Exclusion Of Expert Testimony
The Tenth Circuit has reversed the nineteen insider trader convictions of former Qwest Communications chief executive Joseph P. Nacchio based upon incorrect expert evidence rulings. Anyone who has followed the situation at Qwest is likely familiar with the saga of Nacchio, who was accused of knowingly concealing Qwest's mounting financial troubles from investors, while simultaneously selling millions in personal shares. Of course, there was significant evidence of Nacchio's guilt, leading to him being convicted, sentenced to a significant term of incarceration, fined $19 million, and ordered to forfeit $52 million more. So, what went wrong?
Well, on March 16, 2007, the defense disclosed its intention to call Professor Daniel Fischel to provide economic analysis of Mr. Nacchio's trading patterns, and to testify about the economic importance of the allegedly material inside information. The government objected that defense failed to comply with Federal Rule of Criminal Procedure 16(b)(1)(C), which indicates in relevant part that "[t]he defendant must, at the government's request, give to the government a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence....This summary must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications."
On March 29, Nacchio filed a revised, ten-page Rule 16 disclosure describing Professor Fischel's qualifications as an academic, his research and teaching in law and finance, and his previous experience consulting and testifying. It gave a “Summary of Opinions and Bases for Opinions,” explained that Fischel had conducted a “study of the Questioned Sales in relation to various benchmarks,” and provided his consequent opinion that Mr. Nacchio's sales were inconsistent with what one would expect them to be if the government's claims were true. It recounted that Professor Fischel had studied stock data and assorted public information and stock analysis and had concluded that Qwest's stock price was not significantly affected when the allegedly material information was released. The government again objected, and at trial, the judge granted the objection and precluded Professor Fischel from testifying, concluding that defense's Rule 16 disclosure failed to address methodology and that Fischel's testimony would not be helpful to the jury, making it inadmissible under Federal Rule of Evidence 403 or Federal Rule of Evidence 702.
In United States v. Nacchio, 2008 WL 697382 (10th Cir. 2008), the Tenth Circuit found that the judge erred in precluding Professor Fischel's testimony. The Tenth Circuit first found that the judge's Rule 16 ruling was in error, possibly because he was "confus[ed] between" the Federal Rules of Criminal Procedure and the Federal Rules of Civil Procedure because he indicated that "the criminal expert disclosure requirement is 'pretty close to what is required in the civil area.'" As noted, a disclosure under Federal Rule of Criminal Procedure 16(b)(1)(C) must contain only "a written summary of any testimony" and "describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." The Tenth Circuit found that the defense's ten-page Rule 16 disclosure satisfied this requirement.
The Tenth Circuit then noted that in civil cases, Federal Rule of Civil Procedure 26 requires that a party presenting expert testimony produce an expert's written report with "a complete statement of all opinions the witness will express and the basis and reasons for them," the witness' qualifications, all of the data or other information considered in forming the opinion, all summary or supporting exhibits, and the compensation he was paid. The defense did not comply with the this rule, but because it was a criminal case, not a civil case, compliance was not required, and the trial judge's determination was in error.
The Tenth Circuit then noted that the trial judge found that, even if the defense's Rule 16 disclosure was proper, Professor Fischel's still would have violated Federal Rule of Evidence 403 or Federal Rule of Evidence 702. The court, however, found that after the trial judge made his Rule 16 decision, he merely cursorily made these conclusions without the required factual analysis. Thus the Tenth Circuit reversed and ordered a new trial. While it is unfortunate that convictions supported by substantial evidence were overturned, it seems to me that the Tenth Circuit had no other choice based upon the clearly erroneous evidentiary rulings by the trial judge.
March 18, 2008
Case Of Interest: Supreme Court Grants Cert in Melendez-Diaz v. Massachusetts
While, as I noted, the United States Supreme Court denied cert in State v. Bentley, 739 N.W.2d 296 (Iowa 2007), a Confrontation Clause case involving the videotaped testimony of a non-testifying child sexual abuse victim, it granted cert in Melendez-Diaz v. Massachusetts, a case dealing with whether forensic lab reports are "testimonial" for Confrontation Clause purposes. I don't have much more to add then what has already been extensively reported by University of Michigan Law School Professor Richard D. Friedman on his excellent Confrontation Blog. I have reported before on a recent interesting Court of Appeals of New York case dealing with the same issue, and I again direct readers to an excellent article on the same issue by Jennifer Mnookin, A Vice Dean and Professor of Law at the UCLA School of Law.
Judiciary Under The Influence, Take 2: Supreme Court of New Jersey Approves Use Of Alcotest 7110 For Drunk Driving Cases
Previously, I wrote about how the Supreme Court of New Jersey was considering whether a new breath alcohol testing technology -- the Alcotest 7110 MK III-C -- is sufficiently reliable to be admissible in drunk driving cases as a Breathalyzer alterantive. Yesterday, the Court found that Alcotest results are admissible in a 149 page ruling. I haven't had a chance to look at the opinion in detail, but it's sure to be controversial because, as I noted before, the Court appointed retired appellate judge Michael Patrick King as special master to investigate the technology and report his findings on it; while King initially reported that the technology was unrelaible in a 268 report, he later reversed himself in a 108 page report, which indicated that despite "minor defects" with the technology, it is more reliable than the Breathalyzer.
The question thus becomes whether the Court's decsion is legitimate or whether it was a political determination to save face for the New Jersey government. You see, 10,000 drunken driving prosecutions involving the test were put on hold while the Court decided whether the test was reliable and admissible; these cases can now proceed after the Court's decsion. The Court did, however, find that Draeger, the German company whose division in Pittsburgh manufactures the Alcotest 7110, must provide programming information about the device and train defense lawyers and their witnesses in drunken driving cases to use the Alcotest.
This Will Be On My Videotape: Supreme Court Denies Cert In Videotape Testimony Case From Iowa
The United States Supreme Court has declined to grant cert in State v. Bentley, 739 N.W.2d 296 (Iowa 2007). In Bentley, a Cedar Rapids Police Officer and a representative of the Iowa Department of Human Services set up a videotaped interview between J.G., a ten year-old child, and a counselor at St. Luke's Child Protection Center. The officer and representative then watched through an "observation window" as J.G. made numerous statements alleging that James Bentley sexually abused her. Two days later, Bentley was charged in two different counties with sexual abuse in the second degree, and in both cases he moved for a preliminary determination of the admissibility of J.G.'s videotaped interview under the Confrontation Clause. After a hearing on the motion in limine, the district court held admission of the videotape would violate Bentley's constitutional right to confront a witness against him, and the State filed an application for discretionary review, which the Supreme Court of Iowa granted.
The Supreme Court of Iowa noted that in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court concluded that tape-recorded statements police officers elicited during a custodial interrogation of the defendant's wife were inadmissible at the defendant's trial pursuant to the Confrontation Clause because they were "testimonial," the declarant was unavailable at trial, and the defendant had no prior opportunity for cross-examination. The Iowa court then noted that the Supreme Court set out "[v]arious formulations of th[e] core class of 'testimonial' statements" that the Confrontation Clause was intended to address: "ex parte in-court testimony or its functional equivalent," "extrajudicial statements ... contained in formalized testimonial materials," and "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement[s] would be available for use at a later trial." The Iowa court further indicated that "[a]lthough the Court did not offer a comprehensive definition of 'testimonial statement,' its opinion noted that even if a 'narrow standard” is used to determine whether statements are testimonial, “[s]tatements taken by police officers in the course of interrogations,” such as the declarant's statements in Crawford are testimonial."
The court then noted that J.G. was tragically "unavailable" to testify at Bentley's trial (she died before trial) and Bentley had no opportunity to cross-examine her, triggering a Confrontation Clause analysis. The court then found that the interview of J.G. was essentially a substitute for police interrogation at the station house and that the State did not meet its burden of proving the recorded statements of J.G. were nontestimonial. Specifically, the Supreme Court of Iowa noted that there indicia of formality surrounding the interviews of J.G. and that the officer was not a mere observer but in fact engaged in mid-interview consultations with the interviewer.
The court also rejected the State's argument that J.G. was too young to understand that her statements would be used to prosecute Bentley, finding that "an analysis of the purpose of the statements from the declarant's perspective is unnecessary under the circumstances presented here. J.G.'s testimonial statements lie at the very core of the definition of 'testimonial,' and fall within the category of ex parte examinations against which the Confrontation Clause was directed." The court also rejected a state's interests argument and concluded that its ruling was in line with the opinions in several other states.
The Attorney General of Iowa then appealed to the United States Supreme Court, and 26 state attorneys general filed a friend of the court brief in support, but it was not enough to get the Supremes to grant cert, likely because, it seems to me, the videotaped statements clearly constituted testimonial hearsay.
The Pictures Are All I Can Feel: Connecticut Case Reveals Authentication Rules For Computer Generated Evidence And Computer Enhanced Photographs
The Appellate Court of Connecticut's recent opinion in State v. Blake, 2008 WL 683658 (Conn.App. 2008), contains an interesting discussion of how the proponent of computer enhanced photographs and computer generated exhibits can authenticate them. In Blake, Jeff Blake was convicted of sexual assault in the first degree, sexual assault in the second degree, and risk of injury to a child in connection with alleged acts committed against a fourteen year-old girl on a couch. Two days after the alleged incident, the girl gave to the police the pair of white underpants and pink shorts that she had been wearing at the time of the alleged assault. Some time thereafter, the girl gave the police a cushion from the sofa where the alleged assault occurred and onto which the defendant had allegedly ejaculated.
At trial, the DNA evidence indicated that an epithelial rich fraction of the stain on the victim's underpants revealed that the DNA from the stain was a mixture of which the defendant was included and the victim could not be excluded as a minor contributor. The testing on the sperm rich fraction of the stain thereafter revealed a single source for the DNA, a profile consistent with the defendant. There was additional evidence that the DNA testing also revealed a single source consistent with the defendant's profile. The defendant's DNA profile was created through computers, lasers, and cameras.
The prosecution offered this DNA evidence through Nicholas Yang, a forensic scientist employed by the department of public safety. Yang testified as to his qualifications, including a bachelor's degree in biochemistry and a master's degree in forensic science. He was also working toward a Ph.D. in genetics at the time. Yang had completed one year of training and had been employed at the laboratory for six and one-half years and had analyzed thousands of DNA samples. After he was convicted, Blake appealed, claiming, inter alia, that the prosecution failed to properly authenticate the computer generated DNA profile evidence because it failed to lay a sufficient foundation that Yang had an adequate understanding of computer generated evidence.
The court noted that back in 1979, in American Oil Co. v. Valenti, 426 A.2d 305 (Conn. 1979) the Supreme Court of Connecticut indicated that computer generated evidence could be authenticated by "testimony by a person with some degree of computer expertise, who has sufficient knowledge to be examined and cross-examined about the functioning of the computer." The court then noted that in 2004, relying upon Federal Rule of Evidence 901, the Supreme Court of Connecticut in State v. Swinton, 847 A.2d 921 (Conn. 2004), adopted the additional requirements for computer enhanced photographs and computer generated exhibits that "1) the computer equipment is accepted in the field as standard and competent and was in good working order, (2) qualified computer operators were employed, (3) proper procedures were followed in connection with the input and output of information, (4) a reliable software program was utilized, (5) the equipment was programmed and operated correctly, and (6) the exhibit is properly identified as the output in question."
The court then found then Yang's testimony satisfied all of these elements and affirmed Blake's convictions. I like this 6 factor approach, but it seems to me that Connecticut is forgetting one step in the analysis. Computer generated evidence constitutes an original under Federal Rule of Evidence 1001(3) and state counterparts, but computer enhanced photographs would constitute duplicates under Federal Rule of Evidence 1001(4). Thus, a computer enhanced photograph implicates the Best Evidence Rule and can only be admissible if it accurately reproduces the original and there is no genuine question raised as to the authenticity of the original. And yet, I see no discussion of these issues in the Connecticut cases.
For more discussion of this issue, you can look at my new article, "Even Better than the Real Thing."
March 17, 2008
Let's Make A Deal, Take 2: Judge Decides Which Of Brian Dugan's Statements From Sexual Predator Study Will Be Admissible
Earlier, I posted about the case of Brian Dugan, the Illinois man currently on trial for the 1983 murder of 10 year-old Naperville schoolgirl Jeanine Nicario. As I noted, back in 1986, Dugan made some incriminating statements while taking part in a state policy study of sexual predators, and the judge hearing his case deemed that these statements were not part of protected plea talks, which would have made them inadmissible. Well, on Thursday, DuPage Circuit Judge George Bakalis specified which portions of the recordings of Dugan's statements are admissible and which are inadmissible.
For instance, Judge Bakalis determined that Dugan's admission that he murdered a Geneva nurse and committed other, unrelated sexual attacks will be inadmissible, presumably because they constituted impermissible character evidence which only could have been used to prove that Dugan had a propensity to be violent and thus likely acted in conformity with that propensity at the time in question. On the other hand, Judge Bakalis ruled that Dugan's admission that he abducted, raped, and drowned a 7 year-old girl in Somonauk, Illinois will be admissible, presumably to prove modus operandi -- that Dugan had a predilection for abducting and killing young girls. It will be interesting to see how everything shakes out when this case is finally resolved.
Immigrant Song: Third Circuit Finds That Federal Rules Of Evidence Don't Apply To INA Proceedings
The Third Circuit's recent opinion in Yusupov v. Attorney General of U.S., 2008 WL 681851 (3rd Cir. 2008), makes it at least the second federal appellate court to find that the Federal Rules of Evidence do not apply to Immigration and Nationalty Act (INA) proceedings. In Yusupov, Bekhzod Bakhtiyarovich Yusupov was a Uzbek national who claimed to be an "independent Muslim;" he claimed that he attended the mosque of Imam Obidkhon Nazarov, whose followers, he asserted, had been subject to continued persecution by the Uzbeck government. Yusupov claimed that he left Uzbekistan to pursue educational opportunities in America and refused to return to his former country for fear of persecution. Yusupov, however, violated the terms of his student visa when, inter alia, he never went to school and instead obtained a job at a factory, falsely claiming to be a U.S. citizen on a federal Employment Eligibility Verification Form I-9.
Yusupov conceded that he was removable for violating the terms of his student visa, but he applied for asylum, withholding of removal, and United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) relief. An alien unlawfully in this country may apply for "withholding of removal" under Immigration and Nationality Act (INA) § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), which prohibits removal if the Attorney General believes that the alien's life or freedom would be threatened in the country of removal. Eligibility for withholding of removal is erased, however, if “there are reasonable grounds to believe that the alien is a danger to the security of the United States."
Eventually, the Board of Immigration Appeals (BIA) found that there were such reasonable grounds based upon (1) a Uzbek extradition request and an Interpol warrant with allegations that Yusupov conspired with others to use violence, (2) the FBI's discovery of cached video files of speeches by bin Laden and others as well as of bombings in Chechnya, (3) a "jihad" e-mail sent to Yusupov's roommate, (4) the fact that Yusupov entered the United States on a student visa but never attended school, and (5) Yusupov's 2003 conviction for making a false statement on a federal form. Nevertheless, the BIA found that that Yusupov would face persecution and/or torture upon return to Uzbekistan, and thus granted the more limited remedy of deferral of removal under the CAT.
In a petition for review, Yusupov argued, inter alia, that the BIA erred in applying the Attorney General's interpretation of the national security exception, which is that the "reasonable grounds" standard is satisfied if there is information that would permit a reasonable person to believe that the alien may pose a danger to the security of this country. Yusupov argued instead that the BIA must rely upon evidence admissible under the Federal Rules of Evidence. The Third Circuit disagreed, finding that Yusupov "failed to point to anything in the INA that incorporates the Rules of Evidence. Rather, the INA imposes an implicit requirement that the evidence be reliable enough to allow a reasonable person to decide that the alien poses a national security risk." Instead, the Third Circuit agreed with Adams v. Baker, 909 F.2d 643, 649 (1st Cir. 1990), where the First Circuit held that the immigration context is different from that of a courtroom, making the Federal Rules of Evidence inapplicable.
I agree with the Third Circuit's specific ruling, but it should be noted that the Federal Rules of Evidence have some applicability in INA cases. Federal Rule of Evidence 1101(e) states that in certain proceedings, the Rules "apply to the extent that matters of evidence are not provided for in the statutes which govern procedure therein or in other rules prescribed by the Supreme Court pursuant to statutory authority." One listed proceeding is "naturalization and revocation of naturalization under sections 310 - 318 of the Immigration and Nationality Act (8 U.S.C. 1421 - 1429)." These sections were not at play in Yusupov, making the Rules inapplicable, but, as indicated in the Rules, they can play a role in other INA proceedings.
March 16, 2008
She's Filing Her Nails While They're Dragging The Lake: Court Of Appeals Of Texas Finds That Local Authorities Didn't Piggy-Back On Federal Investigation
I'm sure that many people already miss HBO's "The Wire," which aired its final episode one week ago today. Well, here's an interesting Texas case which calls to mind McNulty and Freamon's cockeyed "let's make up a serial killer so that we can get a wiretap and take down Marlo" plan from this last season (incidentally, my wife worked at the talent agency that repped Jamie Hector, the actor who played Marlo, and she tells me that he's a really nice guy in person).
In the recent case, Davidson v. State, 2008 WL 678581 (Tex.App.-Austin 2008), Wendi Mae Davidson reported on January 16, 2005 that Michael Severance, her husband and an airman in the United States Air Force stationed at Dyess Air Force Base in Abilene, Texas, had been missing since the day before. Davidson advised the security forces section at the Air Force base that he may have deserted his post, possibly fleeing to Canada because he was scheduled to be deployed. Investigators with the Air Force Office of Special Investigations (AFOSI) began a missing persons/deserter investigation and Officer Dennis McGuire of the San Angelo Police Department began a parallel investigation.
During the course of their investigation, AFOSI agents sought and received written approval from the Regional Commander at Langley Air Force Base in Virginia to place a mobile tracking device on Davidson's vehicle. Data retrieved from the device showed that on February 27, Davidson's vehicle traveled to a remote location, identified as ranch property owned by Terrell Sheen. The agents contacted Sheen on March 1, and he told them that Davidson and Severance had access to his ranch property and that Davidson kept a horse there. Sheen then consented to the agents' search of the property and showed them various ponds, including a large stock pond with a boat dock.
Two days later, Texas Ranger Shawn Palmer and San Angelo Police Sergeant Jones interviewed Davidson at her veterinary clinic and eventually asked about the Sheen property and the large stock pond on it. When the officers asked about the large pond, Davidson "became more abrupt in her answers...[and] got kind of defensive," responding that her parents also had a pond on their property and that Sheen's ranch had three ponds, not just one. This made Palmer suspicious, and after the interview was over, he asked AFSOI agents and a police officer to set up surveillance in the vicinity of Sheen's ranch; when they arrived, Davidson was about to enter the ranch through a gate. She was denied access, and the lake was then searched, leading to the discovery of Severance's dead body, which was stabbed 41 times and tied down with car parts and cinder blocks. Davidson was later convicted of murder and two counts of tampering or fabricating physical evidence with intent to impair.
On appeal to the Court of Appeals of Texas, Davidson's main argument was that because the civil law enforcement authorities "piggy-backed" on the military personnel's application and installation of the tracking device, they acted "in collusion with" the AFOSI agents and bypassed the requirement of a judicial order. While the AFSOI properly received federal permission to place the tracking device on Davidson's car, neither they nor the local authorities complied with Texas Code of Criminal Procedure 18.21. Thus, if the court determined that the AFSOI/local authority investigation was a joint operation, the tracking would have been improper because state officers would have done indirectly what their statute prohibited them from doing directly, by using federal agents to circumvent these requirements.
The Court of Appeals of Texas, however, found that this was not a situation where local authorities who could not get a tracking device used federal agents to get such tracking; instead, it was the call by Davidson herself about her missing husband which gave rise to the AFSOI investigation. The court thus rejected Davidson's argument because she "did not adduce evidence or demonstrate in any manner that the law enforcement officers did indirectly through the AFOSI agents what they were prohibited from doing directly in order to circumvent state statutory requirements."