Saturday, April 5, 2008
St. Lucie Sound: Defense Counsel Claims Government Has Not Disclosed Exculpatory 911 Tape In Quadruple Homicide Case
Ricardo Sanchez and Daniel Troya have been charged with murder in connection with a quadruple homicide, with prosecutors seeking the death penalty against them. According to Sanchez's attorney, however, the government, and not his client, is the one who has acted wrongfully, failing to grant him access to a tape of a 911 call that exonerates his client. And assuming that the attorney's version of the facts is correct, I think that he raises an excellent point.
Jose Escobedo, his wife, Yessica, and two young children were shot to death in the predawn hours of October 13, 2006. The St. Lucie County Sheriff's Office's theory of the case is that Escobedo was the head of a large drug ring and that Sanchez and Troya "killed their leader." Prosecutors have said they also believe the killings were drug-related.
Sanchez's attorney, Donnie Murrell, contends that "[f]or 18 months the government has told us that fingerprints on a toll ticket stamped at 3:02 a.m. showed that (Sanchez) got off the turnpike at Okeechobee Boulevard after the murder." According to Murrell, however, there is a fatal flaw in this theory, which is that the government has a tape of a 911 call that is an actual recording of the murders as they happened. The 911 call was recorded at 3:10:59 on October 13, 2006. The Okeechobee Boulevard turnpike exit is 50 miles from the scene of the murders.
Acording to Murrell, "This 911 tape is clearly exculpatory when considered in conjunction with other evidence developed by the government, most notably a turnpike toll ticket. The government has a toll ticket bearing the latent (finger)prints of defendant Sanchez. That ticket was collected at the Okeechobee turnpike exit at 3:02 a.m. on October 13, 2006. It is fifty miles from the scene of the crime to the Okeechobee turnpike exit. Clearly it is physically impossible for defendant Sanchez to have exited the turnpike at Okeechobee Boulevard at 3:02 a.m. and get to the scene of the homicide, 50 miles away, in less than eight minutes."
Murrell contends, however, that the government "has refused to allow the defense to hear, copy or otherwise inspect the 911 tape." Murrell has argued that this non-disclosure is in error because the rules of evidence require prosecutors to share all their evidence with defense attorneys.
Murrell is correct. I'm not sure whether Florida has a specific statute requiring such disclosure, but the Supreme Court clearly indicated in Brady v. Maryland, 373 U.S. 83 (1963), that prosecutors are required to disclose to defendants material exculpatory evidence in a timely fashion. Clearly, if what Murrell is claiming is accurate, the 911 tape would be material exculpatory evidence which the government would need to give to defense counsel.
Friday, April 4, 2008
A judge in a California murder case has made a seemingly incorrect evidentiary ruling based upon the statement against interest exception to the rule against hearsay. Roger Clark is currently on trial for allegedly killing Charles Gibson in Sandy Valley, a small desert town on the California-Nevada border, in May 2002. The prosecution's theory of the case is that Clark shot Gibson with a shotgun in the thigh and buttocks, then drove him away to a remote desert location and set a motor home on fire, leaving Gibson to burn alive inside. The alleged motive is that Clark believed Gibson was having an affair with his girlfriend Carrie Abrao, who was Gibson's neighbor.
While several witnesses provided essential testimony in the case, one witness who did not was Robert Price, another of Abrao's neighbors, who was in custody awaiting trial on charges of receiving stolen property. While on the witness stand, he refused to answer most questions about the night that Gibson died eventually invoking his Fifth Amendment right against self-incrimination. According to Clark, Price invoked this right for good reason; apparently, Price confessed to his cellmate that he killed Gibson.
Defense counsel attempted to call this cellmate to testify about Price's alleged confession, but the attempt was rebuffed by the trial judge. According to defense investigator Chuck Maine, this testimony was excluded because the judge concluded that Price's alleged statements constituted hearsay. To me, this ruling seems erroneous. Sure, Price's confession was hearsay because it was a statement that was made other than by a witness while testifying at trial and that was offered to prove the truth of the matter stated: that Price killed Gibson.
But, the confession seems to fit pretty clearly under a hearsay exception. Pursuant to California Evidence Code Section 1230, "[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a
reasonable man in his position would not have made the statement unless he believed it to be true." Obviously, Price's alleged confession that he killed Gibson subjected him to criminal liability for murder such that a reasonable man would not have made the statement unless he believed it to be true.
The only question, then, is whether Price was "unavailable" as a witness? And clearly, he was. Under California Evidence Code Section 240(a)(1), a witness is "unavailable" when he is "[e]xempted or precluded on the ground of privilege from
testifying concerning the matter to which his or her statement is relevant." Here, Price was clearly exempted from testifying based upon the Fifth Amendment right against self-incrimination, which should have allowed for his alleged statement to his cellmate to be admissible.
Thursday, April 3, 2008
From Music Critics' Whipping Boy To Judge's Whipping Boy, Take 2: Nickelback's Chad Kroeger Convicted Of Drunk Driving
Earlier, I posted about the strange DUI trial of Nickelback frontman Chad Kroeger in a Canadian court. As I noted, an officer pulled Kroeger over for speeding in his Lamborghini and decided to give him a breathalyzer test only after having Kroeger blow in his face and detecting the odor of alcohol. I noted that the B.C. Supreme Court had determined that under the Canadian Charter of Rights and Freedoms, the "blowing in the face" practice used by the officer is unconstitutional, but the judge in Kroeger's case nonetheless failed to exclude the breathalyzer test results, finding that the practice only minimally intrudes upon a person's body. Because the breathalyzer test was not excluded and because it indicated that Kroeger's BAC was nearly twice the legal limit, Kroeger was convicted of driving under the influence yesterday.
This makes me repeat my initial concern with the judge's ruling: What's the point? By declaring the "blowing in the face" practice unconstitutional but nonetheless failing to exclude evidence obtained as a result of the practice, police are not deterred from using the practice and civilians are not protected in any practical manner. According to the judge's ruling, the B.C. Supreme Court's opinion has no teeth and no practical effect in any drunk driving case.
Is There A Doctor In The House?: Ninth Circuit Finds A Physician's Assistant Who Twice Failed His Physician's Exam Was Properly Qualified As An Expert Witness
The Ninth Circuit's recent opinion in United States v. Smith, 2008 WL 834453 (9th Cir. 2008), provides an illustration of how liberal most courts are in finding witnesses to be qualified as expert witnesses under Federal Rule of Evidence 702. In Smith, in August 1999, four inmates at a federal penitentiary were in the recreation cage of the Special Housing Unit: Malik Smith, Charles Wesley Helem, George W. Jeffries, and Milton Johnson. After hearing scuffling noises, prison guards went to the cage, where they saw Smith stabbing Jeffries with a sharpened plastic object while Helem held him from behind. The object snapped into two pieces, but Smith continued to use one of the pieces to stab Jeffers. The object was a prison-made knife which was about six inches long, flat, and sharpened to a point at one end. The knife was made by melting down very thin Styrofoam trays and forming them into a hard plastic.
After the incident, Reynaldo Nisperos, a physician's assistant employed by the prison, examined the four inmates for injuries. While Helem and Johnson had none, Smith had injuries on the palm of his right hand and on the inside of his lip, and Jeffries had sustained several cuts, including one that was about eight centimeters long and pierced the skin of Jeffries's right eyelid and another that was approximately ten centimeters long on his face. Nisperios also noted a superficial abrasion on Jeffries's neck that was about six centimeters long and multiple superficial abrasions and laceration on Jeffries's lower back. According to Jeffries, either Smith or Helm yelled, "You're hot, you're hot" right before the attack began, with "hot" meaning in prison slang that Jeffries was considered a snitch.
Eventually, Smith was indicted for the assault with intent to murder, assault with a dangerous weapon, and the lesser included offense of simple assault. At trial, Nisperos described the injuries Jeffries sustained and testified that the weapon used by Smith could cause "very fatal injuries." He specifically noted that if the knife were used to hit an internal organ or a major artery, like the carotid artery or the jugular vein, it could cause "major injuries." The district court allowed Nisperos to render this opinion over Smith's objection that Nisperos lacked sufficient expertise to qualify as an expert because he was not a doctor and twice had failed the exam to qualify as a doctor. In determining that Nisperos was qualified to give his opinion, the court relied on Nisperos's medical degree from the Philippines, his bachelor's degree in criminology, and his testimony that he had treated inmates for wounds inflicted by prison-made knives 50 to 100 times during his nineteen years at the prison. Nisperos' testimony was then essential to the jury's verdict finding Smith guilty of assault with a dangerous weapon.
On appeal, the Ninth Circuit affirmed the district court's ruling, finding that Nisperos was properly qualified as an expert witness under Federal Rule of Evidence 702, which indicates, inter alia, that a witness can be qualified "as an expert by knowledge, skill, experience, training, or education." The Ninth Circuit found that Nisperos had the requisite education based upon his medical degree and the requisite experience based upon his twenty years of treating inmates. With regard to Nisperson twice failing the exam to become a doctor, the court noted that "[n]o specific credentials or qualifications are mentioned [in Rule 702]. Moreover, we have previously held that an expert need not have official credentials in the relevant subject matter to meet Rule 702's requirements."
The upshot of this is that most courts frequently qualify individuals as medical experts, even though they are not the type of people we would want diagnosing or treating ourselves or our loved ones. The Supreme Court adopted Daubert to keep "junk science" out of the courtroom. It seems to me that the Court might want to think about doing something similar to require that our expert witnesses in fact have what most would consider expertise.
Wednesday, April 2, 2008
I have written a couple of posts about Giles v. California, the case that the Supreme Court will soon hear to resolve the issue of whether the forfeiture by wrongdoing doctrine contains an intent requirement. Well, if the National Association of Counsel for Children and the American Professional Society on the Abuse of Children have their way, the Supreme Court will also conclude in Giles that the doctrine applies to cases in which defendants take advantage of predictably unavailable witnesses, which would apply in many child witness cases.
Irell & Manella and Jenner & Block have filed an amicus brief on behalf of these groups. In Part I, the brief argues that the Supreme Court has long recognized modern exceptions to the Confrontation Clause based upon exceptions that existed at the time of the Framing. It then notes that English courts frequently admitted unconfronted children's out-of-court reports of abuse based upon necessity and fairness with the reasoning being that the defendant's acts in these cases ensured that the natural and often only witness to the crime (e.g., the child victim) would be unavailable to testify.
Part II contends that despite this general rule, in the post-Crawford Confrontation Clause world, "trial courts routinely have barred testimonial hearsay from unavailable child witnesses." The brief that supports this contention with cases from Kansas, Idaho, Colorado, Arkansas, Indiana, Oregon, Pennsylvania, Ohio, Mississippi, and Nevada where courts reversed convictions after determining that trial courts impermissibly admitted testimonial hearsay from unavailable child witnesses. The brief finds these results troubling, noting that these rulings "enable individuals who commit crimes against or in the presence of children to benefit from young children's unavailability."
The brief thus argues that the equitable exception for unconfronted children's out-of-court reports of abuse should be used in cases such as the cases identified in Part II to obviate any Confrontation Clause concerns. Part III notes, however, that simply resolving the Confrontation Clause issue does not mean that such statements are admissible under the rules of evidence and that children's statements must still be shown to be reliable. The brief then argues that it is ironic that one of the conditions that can best establish the reliability of a child's out-of-court report -- the report being videotaped -- is one of the main conditions used to establish that a statement is testimonial and thus inadmissible under the Confrontation Clause. The brief concludes, however, that because of the equitable Confrontation Clause exception at play, courts should find that the videotaping of children's out of court reports satisfies reliability concerns and does not violate the Confrontation Clause.
Giles is not a case involving a child's hearsay statements, so it is questionable whether the court will address the issue raised by the brief. That said, the Supreme Court's Confrontation Clause opinions since Crawford have been so unpredictable that it would not surprise me in the least if it adopted the reasoning of the amicus brief. At the least, though, I think that the brief sets out a compelling argument which the Supreme Court will have to consider strongly in this case or a future child hearsay case.
I have written twice before (here and here) about the state murder trial of Brian Keith Rose, in which Judge Susan Souder became the first Maryland judge to find fingerprint evidence inadmissible because there are doubts about its reliability. So, what happened to Rose's case, in which he is accused of murdering the owner of a Cingular Wireless store at a Baltimore County mall? The state prosecutors handed it over to federal prosecutors, and yesterday, a federal grand jury indicted Rose on two counts of attempted carjacking resulting in death and discharging a firearm during a crime of violence. Rose could get life in prison without parole if convicted, and federal prosecutors may seek the death penalty. It's rare that this type of single murder case is brought in federal court based upon the expense of murder trials, but the feds took over based upon Souder's ruling.
That decision has prompted criticism by Paul DeWolfe, head of the Montgomery County public defender's office, who said the federal involvement undermines Judge Souder's decision. DeWolfe stated, "We hope the federal authorities will respect decisions by state court judges....We hope prosecutors in state court will not bring it upon themselves to appeal to federal court every time they're unhappy with judges' rulings. It shows a lack of respect for judiciary and independence of judiciary. It puts a chilling effect on judges making rulings on one side or the other." Meanwhile, Patrick Kent, head of the state public defender's forensic unit, who was Rose's attorney, contended that "[t]he federal indictment is a slap in the face of every state court judge ruling based on the law."
Conversely, Maryland U.S. Attorney Rod J. Rosenstein defended the process. He also appealed to the Maryland legislature to review the law and consider allowing state prosecutors the right to appeal evidentiary rulings, as federal prosecutors can. According to Rothstein, "Judges make mistakes. Judges sometimes disagree....And it's very important in the judicial system that there be consistency between judges and that evidence that is admissible in one court be admissible in another."
I think that both sides are correct in parts. As far as I am aware, in most states, state prosecutors can appeal evidentiary rulings, and Maryland appears to be in the minority of states in proscribing such appeals. I think the majority rule makes sense and allows for appellate review of frequently difficult evidentiary issues. I also agree with the public defenders that state prosecutors unhappy with state judge evidentiary rulings should not be able to punt their cases to the feds in the hopes of more favorable evidentiary rulings. Of course, I can understand why the state prosecutors in the Rose case did so because they could not appeal Judge Souder's ruling. So, it seems that the best solution would be to allow Maryland state prosecutors to appeal evidentiary rulings but not punt cases to the feds. Unfortunately, I don't see either change happening any time soon.
Tuesday, April 1, 2008
The case of Barry Beach has been a long strange trip which could probably be fodder for several months worth of posts on this site. Today, I will only focus on one. In 1984, Beach was convicted of the 1979 murder of seventeen year-old high school valedictorian Kim Nees on the Fort Peck Indian Reservation in Montana. Here is a brief recounting of the details of the case. Around 7:00 A.M. on June 16, 1979, two tribal police officers went to investigate a truck parked on a bluff overlooking the Poplar River Bridge. They saw blood inside the locked vehicle and a clump of bloody hair on the ground. Following a drag trail, they discovered Nees partly submerged, face up in the river.
The murder went unsolved for several years, until the then twenty year-old Beach, who was living with his father in Louisiana, was arrested for contributing to the delinquency of a minor in January 1983. After being held in jail for three days, two officers questioned Beach for hours, trying to link him to the abductions and deaths of three young local women. Eventually, Beach confessed to these Louisiana deaths and the murder of Nees four years earlier. According to the reported confession, which can be found here, Kimberly Nees was the sister of Beach's girlfriend. One day in the victim's truck, Beach made sexual advances on Kim and got angry and strangled her when she resisted his advances. Nees then escaped out the driver's door and Beach came around the truck and hit her with a crescent wrench. He then dragged her body and pushed it over an embankment. Finally, he returned to the truck several times to cover his tracks, throwing evidence into a river
Beach's confession to the Louisiana murders didn't stick and other suspects were eventually arrested for them (Beach apparently wasn't even in Louisiana at the time of the murders). About one year later, however, Beach was convicted of Nees' murder and sentenced to 100 years imprisonment without the possibility of parole in large part based upon his confession. Beach subsequently lodged several appeals, but none were successful. Beach's cause was then taken up by others. One such group is Montanans For Justice, a group of Montanans concerned about the Beach case, which has a website detailing the problems it has with the evidence in the case. According to the group, inter alia, Beach's confession was coerced and inconsistent with the crime scene evidence, the evidence was mishandled, and a bloody palm print found on the victim's truck doesn't match Beach or Nees. Apparently, the New Jersey based innocence group Centurion Ministries also took up Beach's cause, filing a petition seeking a new trial for Beach, which can be found here. The petition was based in large part on alleged statements made by a group of young girls and others which implicate the girls in the murder and exonerate Beach. The State, however, opposed the motion, and a district judge in Wolf Point denied the request yesterday. Beach's attorney has vowed to appeal the Supreme Court of Montana and then possibly go to federal court.
At first blush, I'm not quite sure what to think of the case although it seems like there is a strong possibility that Beach is wrongfully in jail, much like in the Tim Masters case. I think that I will have a better sense of things after a Dateline special on the case airs on Friday. As I noted, though, I only want to focus on one issue in the case, and that is the issue of how courts should determine the admissibility of statements against interest that incriminate the speaker and exonerate the defendant. As noted, the petition for a new trial was based, inter alia, in large part on alleged statements made by a group of young girls, including Maude Grayhawk, which implicate the girls in the murder and exonerate Beach. According to the petition, Grayhawk made repeated these statements to several people on various occasions.
The question is whether these statements are admissible under Montana Rule of Evidence 804(b)(3), which indicates that when the declarant is "unavailable" to testify at trial, "[a] statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true" is admissible as an exception to the rule against hearsay. However, "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." Now, there are many questions in the Beach case that need to be resolve before even reaching Rule 804(b)(3), such as whether Maude is unavailable and whether Beach's appeal was timely.
Assuming, however, that these requirements are met, we are still left with the questions of why we have the "corroborating circumstances" requirement in this one circumstance and how it is satisfied. According to the Advisory Committee Note to Federal Rule of Evidence 804(b)(3), this requirement is in place because there is "distrust of evidence of confessions by third persons offered to exculpate the accused arising from suspicions of fabrication either of the fact of the making of the confession or in its contents." In other words, we don't want a defendant to be able to achieve acquittal by getting a friend to admit to the crime, which is why corroborating circumstances are necessary.
When, however, do such corroborating circumstances exist? According to the petition for Beach, they existed because Maude repeated her statements to several people, but according to the State, this was an irrelevant or insufficient factor. Personally, I think it is a very relevant factor and agree with the five part test laid out by the Fourth Circuit in United States v. Lowe, 65 F.3d 1137, 1146 (4th Cir. 1995), which considers:
-(1) whether the declarant had at the time of making the statement pled guilty or was still exposed to prosecution for making the statement (here, Maude was still exposed to prosecution);
-(2) the declarant's motive in making the statement and whether there was a reason for the declarant to lie (as far as I can tell, there was no reason for Maude to lie);
-(3) whether the declarant repeated the statement and did so consistently (obviously, this is the lynchpin to the petition's argument);
-(4) the party or parties to whom the statement was made (the statements were made to family members and friends);
-(5) the relationship of the declarant with the accused (apparently, they weren't friends); and
-(6) the nature and strength of independent evidence relevant to the conduct in question (according to Montanans for Justice, the evidence against Beach is weak).
Again, this discussion is based upon a very rudimentary understanding of the case, and other issues may preclude this stage of the analysis from even being reached. Assuming, however, that this stage of the analysis is reached in Beach's subsequent appeals, I think he has a strong argument that all six factors are in his favor, allowing for the admission of Maude's statements.
A victim impact statement is a written or verbal statement made as part of the judicial legal process, which allows a victim of crime or his/her family the opportunity to provide either live or videotaped statements during the sentencing of their assailant or at subsequent parole hearings. The first victim impact statement was introduced into an American court in Fresno, California in 1976. Ireland began allowing for their introduction into evidence in 1993. There are strong arguments both for and against their admission into evidence, with proponents claiming that they aid in the emotional recovery of the victim and/or his family and opponents claiming that they make jurors decide cases based upon emotion rather than reason. Based upon these disparate arguments, a judge may use his discretion in deciding to admit or exclude victim impact statements based upon the facts and circumstances of any particular case.
If the group Support After Homicide (SAC) gets its way, however, the admission of such statements will be mandatory in Irish courts in all murder cases. One of their arguments is that last year 84 people were murdered in Ireland, the highest record ever. SAH chair Ann Meade added that allowing such statements is uniquely important to the families of homicide victims because "[m]urder is a heinous crime and exacts a heavy toll from the families and friends of the victim....Whilst families may be the subject of universal sympathy, the response from society does not always recognise their needs or meet them very well....Full custodial sentences for murder are not being served, and many families feel that offenders are released after a few years." Meade added that grief and anger are expressed at clinically high levels as families try to come to terms with losing a loved one through violence, while progressing through the investigative and criminal justice process.
The recommendation that victim impact statements be mandatorily admitted in murder cases was contained in a report -- Emotional Effects and Subsequent Needs of Families Bereaved by Homicide in Ireland -- which also recommended that
-Any rules/guidelines relating to what may be presented in a Victim Impact Statement, should be made clear to the family by a member of the legal profession;
-Families should be informed by the prosecution team of the potential future utilisation of their Victim Impact Statement; and
-Families should be offered the opportunity to take the stand at the inquest for a Victim Impact Statement.
I'm not sure whether I agree with SAC, but I do want to note that its position seems directly contrary to the position of American courts, which until somewhat recently had held that victim impact statements were inadmissible at the sentencing phase of capital murder trials. In Booth v. Maryland, 482 U.S. 496, 508-09 (1987), the Supreme Court held that the admission of a victim impact statement at the sentencing phase of a capital murder trial violated the Eighth Amendment because "the formal presentation of this information by the State c[ould] serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defendant." And while the Supreme Court later reversed this opinon in Payne v. Tennessee, 501 U.S. 808 (1991), it still made clear that it was uniquely concerned about the Eighth Amendment rights of criminal defendant facing capital murder charges.
Monday, March 31, 2008
Like many cities across the country, Davenport, Iowa began using computerized cameras, frequently referred to as "red light cameras," to monitor the speed of motorists and automatically issue tickets. One of these cameras clocked the car of Thomas Seymour going 49 miles per hour in a 35 mile per hour zone, resulting in Seymour automatically being given a $125 ticket. The ACLU used Seymour's case as an opportunity to challenge Davenport's cameras on the ground that the cameras generate tickets for a vehicle's owner even though that owner may not have been driving the vehicle at the time of the infraction, and the case was recently heard by the Supreme Court of Iowa, which should issue a decision later this year.
Critics of the cameras also claim that they are an impermissible government intrusion that violates the right to privacy while the government counters that the cameras raise revenues for cities and decrease the number of traffic accidents. For instance, Davenport claims that the cameras have raised $1 million in revenue since they were installed in 2006, and a city analysis indicates that traffic accidents have decreased red light crashes by 60% at four intersections. At the same time, other studies have shown that red light cameras have either had no effect on red light accidents or actually increased their frequency.
My goal isn't to resolve this dispute, although I have serious concerns with the red light cameras. Instead, my goal is to analyze what the Supreme Court of Iowa will likely do with the legal argument of Seymour and the ACLU, which is that the "traffic cameras fail to give alleged offenders the right to confront their accuser." And my answer is that they are almost certain to reject it.
The Sixth Amendment gives criminal defendants, inter alia, the right to be confronted with the witnesses against him. Now, Seymour is not technically a criminal defendant because Davenport treats the citations issued to people as a civil matter, but I assume that he is treated like a criminal defendant for Confrontation Clause purposes because the Iowa state code requires that people who run red lights be issued criminal citations. If that's not the case, Seymour and the ACLU have no argument, but even if that is the case, the seemingly insurmountable obstacle that they face is that essentially every court that has addressed the issue has concluded that "the Confrontation Clause does not forbid the use of raw data produced by scientific instruments, though the interpretation of those data may be testimonial." United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008).
Sunday, March 30, 2008
It's Inevitably Inevitable: Air Force Case Indicates That Military Rules Of Evidence Codified Inevitable Discovery Doctrine
The United State Air Force Court of Criminal Appeals' recent opinion in United States v. Sanders, 2008 WL 818344 (A.F.Ct.Crim.App. 2008), reveals that, unlike the Federal Rules of Evidence, the Military Rules of Evidence contain a codification of the "inevitable discovery" doctrine. In Sanders, Edwin K. Sanders lived in government quarters at Fort Meade after being stationed in England. Several months after Sanders' arrival, the local Air Force Office of Special Investigations (AFOSI) was told that suspected child pornography had been found by workers cleaning Sanders' former government quarters in England. AFOSI investigators thereafter attempted to obtain authorization to search Sanders' Fort Meade government quarters, but their request was denied for lack of probable cause
The investigators then questioned Sanders, and he admitted that if the investigators were to search his home computer they would “probably” find child pornography. Subsequently, the investigators asked Sanders whether he would consent to a search of his home and computer, and he unequivocally refused. The investigators then contacted Sanders' First Sergeant and told him to keep Sanders with him until he received further instructions and the First Sergeant kept Sanders in his care for approximately one to two hours.
During Sanders' detention, the investigators then drove to the Sanders' home and told his wife about the child pornography allegations. They didn't lie to her, but they didn't tell her that her husband had refused to give his consent to search. Mrs. Sanders thereafter told the investigators that she had common access to the computer and signed a consent form which allowed them to seize and search the computer. The investigators then took the computer, received oral authorization from a military magistrate to search the computer, and eventually, after receiving written authorization to search the computer, retrieved 13 movie files and over 550 image files containing child pornography from the hard drive. After his motion to suppress this evidence based upon the computer being seized without a warrant was denied, Sanders was convicted of knowingly possessing a computer hard drive that contained images of child pornography.
On appeal, Sanders renewed his argument, noting that pursuant to Georgia v. Randolph, 547 U.S. 103 (2006), "a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident." The government, however, argued for a "narrow interpretation" of the Randolph decision. According to the government, because Sanders was not literally "physically present" at the time of the warrantless seizure of the computer, Randolph did not apply. Sanders countered that the court should give a "broad interpretation" to the Randolph decision. According to Sanders, because the government took steps to keep him from returning to his home and failed to inform his wife of his objection to the search/seizure, Randolph applied and made the evidence inadmissible.
The court noted that this was an interesting and difficult issue, but rather than deciding the issue, it chose to rely upon the inevitable discovery doctrine. The inevitable discovery doctrine creates an exception to the exclusionary rule allowing admission of evidence that, although obtained improperly, would eventually have been obtained through lawful means. The court found that once Sanders admitted that child pornography would likely be found on his computer, the investigators could have gotten a search warrant and seized the computer; instead, they jumped the gun, but it was inevitable that they would eventually discover the child pornography.
As I noted, though, the military court system, unlike the traditional court system, doesn't merely have this doctrine in its case law; instead, it is codified in Military Rule of Evidence 311(b)(2), which indicates that "[e]vidence that was obtained as a result of an unlawful search or seizure may be used when the evidence would have been obtained even if such unlawful search or seizure had not been made." This strikes me as a good move made by my former Evidence professor Fred Lederer, the principal author of the Military Rules of Evidence, and I wonder why we don't have a similar Rule in the Federal Rules of Evidence, even if the same effect is achieved through precedent.