EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, May 17, 2008

A Surveillance Photo Can Tell You A Lot...About The Photographer: Case Reaveals That New Jersey Has A "Surveillance Location Privilege"

The recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Bell, 2008 WL 2020174 (N.J.Super. A.D. 2008), reveals that New Jersey has a "surveillance location privilege."  In Bell, Keith Bell appealed from his convictions for  third-degree possession of heroin, third-degree possession of heroin with intent to distribute, and third-degree possession of heroin with intent to distribute within 1000 feet of a school zone.  Bell was charged with these crimes after he was apprehended when police surveillance observed him engaging in a suspected drug transaction.  Officer Carlos Lugo was the sole surveillance officer, and he testified at trial that he was within 50 yards of where the alleged drug transaction occurred and had high-powered binoculars.  Defense counsel sought to question Lugo about his exact surveillance vantage point and whether he was conducting surveillance from a vehicle or from a house.  The prosecution objected to these questions based upon citizen safety concerns, and the trial judge sustained the objections.

After Bell was convicted, he appealed to the Appellate Division, claiming, inter alia, "that the trial court's failure to disclose the officer's exact surveillance location, and its subsequent restriction on defense counsel's ability to cross-examine on that subject, violated his Sixth Amendment right to confrontation."  The Appellate Division noted, however, that New Jersey's rules of evidence recognize a "surveillance location privilege" that permits the State, in appropriate circumstances, to conceal information about the location from which law-enforcement personnel observed alleged criminal activities.  It further noted that "[t]his privilege is grounded on the notion that 'in certain instances, a defendant's right to gain access to information not vital to the defense must yield to society's interests in effective law enforcement and in encouraging citizens to cooperate with the police.'"  The Appellate Division then found that this privilege applied in Bell's case because there were numerous citizen complaints of drug trafficking in the area where Bell was arrested, the State did disclose significant information concerning Lugo's location, and there was substantial corroboration of Lugo's observations.

This is the first that I have heard of such a privilege, but it appears that at least a few other states, such as Illinois, have a similar privilege. See, e.g., People v. Bell, 86 N.E.2d 807, 815 (Ill.App. 1 Dist. 2007).  It seems to me, though, that the privilege is very similar to more widespread privileges, such as the state secrets privilege, and thus that states with these existing privileges should adopt a "surveillance location privilege."  After all, as Michael Weston said in "Burn Notice," a surveillance photo can tell you a lot...about the photographer.  If the State has a legitimate reason to believe that disclosing the exact location from where surveillance was conducted will compromise surveillance efforts in the future, it makes sense to protect that information in the absence of a compelling need for disclosure.


May 17, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, May 16, 2008

Article of Interest: Professor Deirdre Smith's An Uncertain Privilege: Implied Waiver and the Evisceration of the Psychotherapist-Patient Privilege in Federal Courts

Last December, I wrote about a very interesting article by University of Maine School of Law Professor Deirdre Smith about the role of medical evidence in the ADA definition of disability.  Now, Professor Smith has written another terrific piece about a topic that has always interested me:  When does a patient waive the psychotherapist-patient privilege?  The article, An Uncertain Privilege: Implied Waiver and the Evisceration of the Psychotherapist-Patient Privilege in Federal Courts, which will appear in a forthcoming issue of the DePaul Law Review, offers an analysis of the questions implicated by waiver of the privilege and proposes an approach to the issue of waiver which ensures that the concept of waiver does not vitiate the right entirely.

In Part II, Smith traces the rise of civil defendants seeking (and procuring) records, testimony, and other information regarding plaintiffs' current and past mental health treatment.  Civil defendants always sought such information to defend issues of liability, but with the 1990 Americans with Disabilities Act and the Civil Rights Act of 1991 allowing plaintiffs to seek damages for emotional distress, defendants' arguments for access were buttressed.  Consequently, it has been relatively easy for defendants to fashion and find support for superficially valid arguments in support of a need to obtain a wide range of mental health evidence.

In Part III, Smith then traces the origins of the psychotherapist-patient privilege, considering its forerunner, the physician-patient privilege, how discussion began regarding the need for a separate psychotherapist privilege in the mid-20th century, and how such a privilege was thereafter adopted in some form by all states as of 1996.  She then considers the "markedly different" development of the privilege at the federal level, leading up to the 7th Circuit's opinion in Jaffee v. Redmond, which recognized a psychotherapist-patient privilege, but one which was subject to a "balancing" approach, under which the privilege would not apply where "in the interests of justice, the evidentiary need for the disclosure of a patient's counseling sessions outweighs the patient's privacy interests."  The 7th Circuit wouldn't have the last word, however, as Jaffee proceeded to the Supreme Court, which formally recognized a psychotherapist-patient privilege based primarily on the instrumental rationale of promoting confidence and trust in the psychotherapist-patient relationship.  The Supreme Court also replaced the 7th Circuit's "balancing" approach with an "absolute" version or the privilege, but it regrettably made no substantive mention of what circumstances would give rise to waiver of the privilege.

In Part IV, Smith reviews and critiques the post-Jaffee federal case law regarding implied waiver of the privilege. According to Smith, there are several approaches (mis)applied by federal courts in the wake of Jaffee:

     -there is a split among courts, with some applying a "narrow" approach, under which the privilege is only waived by a plaintiff calling her therapist as a witness (which is consistent with the essential principles of waiver generally), but most courts applying a "broad" approach, under which a plaintiff waives the privilege merely by asserting a nonspecific claim for emotional distress;

     -some courts find that there is no waiver when a plaintiff seeks damages for "garden-variety" emotional distress (a not particularly useful construct) but that there is waiver when a plaintiff seeks damages for, inter alia, a specific diagnosable medical condition;

     -many courts apply privacy, fairness, and relevance rationales to waiver questions, which implicitly rejects the "absolute" version of the privilege laid out in Jaffee and ignores the purposes of privileges in general;

     -there is split among courts as to what has been waived when the privilege is waived, with courts generally permitting broad discovery by defendants while offering little scrutiny of the relevance of such records;

     -many courts presented with discovery requests for psychotherapy records paired with a demand for a psychological/psychiatric evaluation under FRCP 35 confuse the analysis of waiver of the psychotherapist-patient privilege and the FRCP 35 analysis; and

     -many courts presented with ADA cases have been quick to conclude that asserting a claim under the ADA effectuates a waiver of the privilege with respect to a claims for emotional distress damages and/or based upon the mere fact that the plaintiff claims to have a psychological disability.

In Part V, Smith concludes that these various and sundry approaches has created an unworkable and illusory privilege.  She contends that to fix this problem, "courts must shift their focus from an instrumental rationale based upon the questionable assumption that the psychotherapist-patient privilege ensures that individuals seek psychotherapy in the first place, to a more realistic and pertinent instrumental rationale, namely that of ensuring that those who have or had a mental illness or treatment are not broadly discouraged from using the courts to remedy a deprivation of their rights."  Specifically, under her approach:

    -the first step in the analysis would be that when defendants request mental health records, courts would make an initial determination under FRCP 26 whether such records are in fact within the scope of permissible discovery;

     -if the first step is satisfied, the second step would be to determine whether the records are covered by the privilege, a determination to be made without reference to fairness and necessity;

     -if the records are covered, the third step would be to consider whether the plaintiff waived the privilege, with the burden of proof being on the defendant and the court focusing solely on the actions of the privilege holder, and with, inter alia, a mere claim for emotional distress damages not constituting waiver; and

     -if there is waiver, the fourth step would be to take additional measures to protect litigants and to follow the broader aims of discovery and litigation.

I asked Professor Smith what led her to write the article, and she responded,

"There are several reasons I decided to tackle the issue of implied waiver of the psychotherapist-patient privilege, some stemming from issues that arose in my practice years ago and some from the more recent research I've done in the ADA context.  Although I recognize that privileges are generally disfavored in the law since they necessarily run counter to truth-seeking etc. by shielding certain information from discovery and fact-finders, I was concerned that the case law on this important question was so chaotic.  The question of whether a party has impliedly waived the psychotherapist-patient privilege can arise in any federal court case in which a person is either seeking emotional distress damages or alleging discrimination on the basis of a mental disability.  The courts, however,  rarely consider the broader issues when ruling on motions for protective orders or motions to compel, and therefore leave many important questions unaddressed.  For instance, if a waiver, as that term is generally used in legal contexts, refers to a knowing and intentional act by a person holding a right, what acts can be properly considered to effectuate an implied waiver of a right?  How broad is the reach of an implied waiver?  Since privileges, almost by definition, generally protect otherwise relevant information, what role do questions of relevance, fairness, privacy and truth-seeking have in determinations of a waiver of a privilege?  And what impact could the "implied waiver" doctrine have on the decisions of potential civil rights/discrimination plaintiffs with mental health histories who are considering bringing actions in federal court to vindicate their rights?  I consider and attempt  to answer each of these questions in the article and I also suggest an alternative framework for courts to employ when facing controversies regarding the enforcement of the privilege."


May 16, 2008 | Permalink | Comments (0) | TrackBack (0)

Snake In A Car: Supreme Court Of Iowa Finds That Warrantless Search Behind Steering Column Was Proper

The Supreme Court of Iowa's recent opinion Iowa v. Allensworth is a strange case with a simple ruling.  In Allensworth, a Polk County sheriff's deputy stopped a vehicle for speeding, and the driver, Allen Allensworth, disclosed that there was an outstanding warrant for his arrest.  What Allensworth didn't have to verbalize was that there was a large snake draped around his neck.  The deputy confirmed that Allensworth had an outstanding warrant for a parole violation and arrested him; he decided to defer his inventory search of Allensworth's vehicle until it was towed and impounded based upon the amount of traffic and the snake.

Approximately two hours after Allensworth's vehicle was towed and impounded, the deputy received an anonymous phone call that there were drugs in Allensworth's vehicle.  The deputy and another officer subsequently conducted an inventory search of the vehicle and found a small bag of marijuana in the center console.  Then, knowing that the steering column "was a known place where people hide drugs," the other officer removed the horn button on the steering column and discovered a small plastic bag containing approximately 25 grams of methamphetamine

Allensworth was then charged with possession with intent to distribute more then 5 grams of methamphetamine and failure to possess a drug tax stamp.  He then filed a pro se motion to suppress the drugs on the ground that they were seized in violation of his Fourth Amendment rights.  The trial court denied the motion with regard to the marijuana, finding that it was properly seized in conjunction with a proper inventory search, but it granted the motion with regard to the methamphetamine, finding that the search of the steering column exceeded the proper scope of an inventory search.  The State then appealed this ruling, with its appeal eventually reaching the Supreme Court of Iowa.

The Supreme Court of Iowa noted that an inventory search of an automobile can blossom into a full blown search under the automobile exception to the warrant requirement if probable cause is found.  The Court then determined that this is exactly what happened based upon the anonymous tip and/or the discovery of marijuana in the console.  The Court then rejected Allensworth's argument that after discovering the marijuana, the officers were required to obtain a search warrant before they could legally extend the search beyond the scope of the inventory.  It found instead that a search pursuant to the automobile exception may be as thorough as a magistrate could authorize in a warrant, relying in part for this conclusion on the United States Supreme Court's opinion in Carroll v. United States, 267 U.S. 132, 172-73 (1925), which uphold an automobile search that included tearing open a vehicle's seat cushion to find suspected contraband

The Supreme Court of Iowa also rejected the argument of the trial court and the defendant that the probable cause which can transform an inventory search into a search under the automobile exception must arise at the scene of the stop.  It found instead that "the only exigency required to justify a warrantless search of a vehicle is the vehicle's ready mobility."   


May 16, 2008 | Permalink | Comments (1) | TrackBack (0)

Thursday, May 15, 2008

The Essential Character: Fifth Circuit Excludes Specific Act Character Evidence In Self-Defense Case

The Fifth Circuit's recent opinion in United States v. Gulley, 2008 WL 1887305 (5th Cir. 2008), contains an important discussion of Federal Rule of Evidence 405(b), a Rule which has been the cause for much consternation.  In Gulley, Arzell Gulley was charged and convicted of the murder of Daryl Brown and aiding and abetting in Brown's murder.  The charges stemmed from a penitentiary fight among Gulley, Brown, and David Jackson, which left Brown dead.  Brown's autopsy indicated that he had eleven knife wounds, with a single strike that pierced the upper lobe of his left lung and the pericardial sac of his aorta causing his death.

Gulley's defense at trial was self-defense, that Brown was the first aggressor.  Gulley tried to prove this claim in part through admitting evidence of eight prior instances of violence committed by Brown, but the trial court excluded this evidence.  After Gulley was convicted, he appealed to the Fifth Circuit.

The Fifth Circuit noted that it is well established that criminal defendants are entitled to present character evidence about a pertinent character trait of the accused (e.g., violence in a homicide case).  Specifically, Federal Rule of Evidence 404(a)(2) provides in relevant part that "[i]n a criminal case...evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused" is admissible.  Federal Rule of Evidence 405 then governs the methods of proof that can be used to prove the victim's character. 

Under Federal Rule of Evidence 405(a), "[i]n all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion."  Specific instances of conduct can only be inquired into on cross-examination and cannot be proven by extrinsic evidence.  On the other hand, under Federal Rule of Evidence 405(b), "[i]n cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct."

Gulley's argument on appeal was that he could introduce specific instances of Brown's violent acts under Federal Rule of Evidence 405(b) on the ground that character was an essential element at issue in this case because Brown's propensity for violence tended to indicate that he was the first aggressor.  As support he cited the (pre-Federal Rules of Evidence) 1972 D.C. Circuit case, United States v. Burks, 470 F.2d 432, 434 (D.C. Cir. 1972), which held that "evidence of the deceased's violent character, including evidence of specific violent acts, is admissible where a claim of self-defense is raised." 

The Fifth Circuit noted, however, that almost all courts in post-Rules cases have disagreed with the D.C. Circuit.  The Fifth Circuit then agreed with this majority, finding that the plain language of Rule 405(b) limits the use of specific instances of conduct to prove essential elements of a charge or defense (such as in a defamation/libel/slander case).  The Fifth Circuit found that "Brown's character was not an essential element of the self defense claim in the 'strict sense' because a self defense claim may be proven regardless of whether the victim has a violent or passive character."  I think that the reasoning employed by the Fifth Circuit makes sense and thus agree with the majority position.


May 15, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 14, 2008

Exclusion Is A Privilege: Eleventh Circuit Notes That There's No Right To Witness Sequestration

The Eleventh Circuit's recent opinion in United States v. Edwards, 2008 WL 1932136 (11th Cir. 2008), notes that while a party can move to have a witness excluded from the courtroom under Federal Rule of Evidence 615, a party has no constitutional right to have such a motion granted.  In Edwards, the prosecution claimed that Charles E. Edwards was running a Ponzi scheme while he claimed that he was running a legitimate corporation that provided management services to payphone owners.  Prior to trial, Edwards moved under Federal Rule of Evidence 615 for the district court to sequester all potential prosecution witnesses, including those witnesses who purported to be the victims in the case.  Rule 615 provides that:  "At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present."

The district court denied Edwards' motion under the fourth listed exception because he sought to exclude witnesses who purported to be victims.  Pursuant to the Crime Victims' Rights Act (CVRA), 18 U.S.C. Section 3771(a)(3), a crime victim has "[t]he right not to be excluded from any...public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding."  After Edwards was convicted, he appealed to the Eleventh Circuit.

The basis of Edwards' appeal was not that he had established by clear and convincing evidence that testimony by the victims would be materially altered but instead that Federal Rule of Evidence 615 "is constitutionally based and that the district court's invocation of the CVRA to deny his motion denied him his Fifth Amendment due process right to a fair trial and his Sixth Amendment right of confrontation."  The Eleventh Circuit rejected this argument "for one simple reason: A criminal defendant has no constitutional right to exclude witnesses from the courtroom."  Instead, it is within a trial court's discretion to decide whether to grant a motion for sequestration under Federal Rule of Evidence 615, and its decision will only be reversed if it abused that discretion.


May 14, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 13, 2008

Article of Interest: Professor John H. Blume's The Dilemma of the Criminal Defendant with a Prior Record -- Lessons from the Wrongfully Convicted

Cornell University Law School Professor John H. Blume has written a groundbreaking new article, The Dilemma of the Criminal Defendant with a Prior Record -- Lessons from the Wrongfully Convicted.  The article, which will be published in an upcoming issue of the Journal of Empirical Legal Studies, uses data gathered from the cases of incarcerated individuals subsequently exonerated due to DNA evidence to challenge the structure and application of Rule of Evidence 609, which governs impeachment through prior convictions. 

In his introduction, Professor Blume lays out the purpose of his article by noting that (1) impeachment critics assert that Rule 609 dissuades even innocent defendants from testifying, while (2) proponents counter that modifying Rule 609 to allow less impeachment would result in a flood of perjured testimony from guilty defendants liberated from their prior misdeeds.  According to Blume, cold hard facts have been missing from this debate, and his article is an attempt to fill this empirical void by examining cases of individuals who were convicted of crimes that we now know, as a result of DNA testing, they did not commit.

In Part II, Blume begins by laying out the current legal framework governing whether and when prosecutors can introduce prior convictions against criminal defendants.  He begins by laying out the less controversial and more entrenched anti-propensity rule contained in Federal Rule of Evidence 404 (and state counterparts), under which evidence of a defendant's bad character is inadmissible to prove that the defendant has a propensity to act in a certain manner (e.g., violently) and that he likely acted in conformity with that propensity at the time of an alleged crime.  At the same time, Federal Rule of Evidence 609 allows for prosecutors to impeach criminal defendants through relatively recent (1) prior convictions for crimes of "dishonesty or false statement" without regard to Federal Rule of Evidence 403 and (2) prior felony convictions not involving "dishonesty or false statement" as long as their probative value outweighs their prejudicial effect.  According to Blume, despite the fear that these convictions will impermissibly be used as propensity evidence, they are almost always admitted for impeachment purposes because courts find a wide variety of crimes involve "dishonesty and false statement" and because the probative value/prejudicial effect balance is routinely struck in favor of impeachment.  Such rulings deter criminal defendants with prior criminal records from testifying, but the unanswered question is whether it merely deters "guilty" defendants from testifying.

In Part III, Blume goes a long way toward answering that question by reviewing case summaries maintained by the Innocence Project.  From these summaries, Blume was able to determine whether 119 criminal defendants who were convicted but subsequently exonerated through DNA evidence testified at their trials.  Here are his results, compared against the baseline of the approximately 50% of all criminal defendants who testify at their trials:

     -61% of the wrongfully convicted testified at their trials while 39% did not;

     -of the wrongfully convicted defendants who testified, 43% had criminal records, with judges permitting every single one of these defendants to be impeached through their prior convictions;

     -of the wrongfully convicted defendants who failed to testify, 91% had prior convictions, with almost all of their attorneys indicating that avoiding impeachment was the principal reason why the defendant did not take the stand; and

     -in the few jurisdictions where impeachment with prior convictions is not permitted, all of the wrongfully convicted defendants testified.

Based upon this data, Blume concludes that "many demonstrably innocent defendants did not testify at trial because, had they done so, they would have been impeached with their prior convictions" and that this data "reveals the shortcomings of the current regulatory system, which gives courts discretion in most cases to allow or preclude impeachment."

In Part IV, Blume argues that these shortcomings can be cured through his proposal, under which the prosecution would not be allowed to impeach a criminal defendant's testimony through convictions unless "(1) the defendant has been previously convicted of perjury and the court determines that the probative value of permitting impeachment outweighs the prejudice to the accused; or (2) the defendant 'opens the door' by offering evidence of his character for truthfulness."  Blume lays out three arguments in support of limiting convictions-based impeachment in this manner:  (1) threatening a criminal defendant with the introduction of his prior record contributes to wrongful convictions; (2) there is no reason to believe that precluding impeachment will lead jurors to place too much weight on a defendant's testimony; and (3) except where the defendant has been previously convicted of perjury, there is no reason to believe that individuals with a prior record are more likely to lie under oath than defendants without prior records.

I asked Professor Blume about what led him to write the article, and he responded:

"Thank you for your interest in the article.  In much of my work, I try (with varying degrees of success) to challenge the "conventional wisdom."  I also think, as do many others, that the DNA exoneration cases are a very valuable data set which we can use to study the criminal justice system, and formulate ways to improve its accuracy.  I have always been interested in the issue of impeachment, and whether in fact the threat of impeachment with prior convictions kept actually innocent defendants from testifying at trial.  So, when an adequate number of exoneration cases were available to study, I decided to determine whether innocent defendants testified at any higher rates than criminal defendants in general, and, if not, why not.  So, that was the genesis of the project.  Much of my prior work, empirical and doctrinal, has been in the criminal procedure area, particularly capital punishment.  But, with this piece and another recent article ("Every Juror wants a Story:  Narrative Relevance, Third Party Guilt and the Right to Present a Defense") I have started to work more in the Evidence field and I have found it very rewarding."


May 13, 2008 | Permalink | Comments (1) | TrackBack (0)

Secret Indictment: Ninth Circuit Case Reveals Indictment Can't Be Used For Rule 609 Impeachment

The Ninth Circuit's recent opinion in In re Olson, 2008 WL 1932014 (9th CIr. 2008), contains an important discussion of when evidence of a prior crime can (and cannot) be used to impeach a witness pursuant to Federal Rule of Evidence 609 and state counterparts.  In Olson, Roy Olson appealed pro se from a decision of the Bankruptcy Appellate Panel affirming the bankruptcy court's order granting appellees retroactive relief from an automatic stay in order to validate a state court judgment entered after the bankruptcy order.

One basis for Olson's appeal was that the bankruptcy court impermissibly precluded him from impeaching a witness against him with evidence that the witness was indicted for bankruptcy fraud.  The Ninth Circuit correctly rejected this argument, noting that Federal Rule of Evidence 609 only permits a witness to be impeached through evidence that he "has been convicted of a crime;" evidence that a witness has merely been indicted for an alleged crime is not admissible under Rule 609.

The Olson case is important because I have seen many students get confused between the rules regarding character evidence and the rules regarding convictoon-based impeachment.  Under Federal Rule of Evidence 404(b) (and state counterparts), evidence that a party/witness committed a crime is admissible to prove, inter alia, knowledge, plan, or identity, regardless of whether the party/witness was charged or convicted of that crime.  So, let's say that a defendant, Dennis, is on trial for breaking into a safe and stealing $100,000.  Part of Dennis' defense at trial is that he would have no idea how to break into a safe.  The prosecution, however, has a witness who will testify that he is aware of a prior safe robbery committed by Dennis.  Even if Dennis were never charged/convicted with this prior crime, the witness' testimony is admissible to prove knowledge (that Dennis knew how to break into a safe) as long as the judge finds that a reasonable jury could find that Dennis committed the prior crime by a preponderance of the evidence pursuant to Federal Rule of Evidence 104(b).

Conversely, as noted in the Olson opinion, prior crimes of a witness can only be used to impeach that witness if he was actually convicted of the prior crime.


May 13, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, May 12, 2008

England's All Ears: The Varying Treatment of Ear Print Evidence in the U.K. And The U.S.

Last week's episode of Supernatural had the Winchester boys once again pitted against their arch nemesis, Bela.  Despite their crack detective skills, they were never able to determine Bela's actual identity, but retired hunter Rufus Turner was more successful.  He informs the quiptastic Dean that while Bela burned off her fingerprints, he was able to identify Bela through her ear print, a technique which is big in England.  And you know what?  The show's done its research.  Like low copy number DNA, ear print evidence appears to be something that is widely accepted in the U.K. but which courts on this side of the pond have determined is inadmissible.  As an article in the Journal of Forensic Sciences notes, the use of ear prints or "earmarks" as evidence in criminal trials in the U.K. is expanding, despite a dearth of peer-reviewed scientific publications supporting their reliability.

Meanwhile, courts in the U.S. have rejected ear print evidence, with the essential case being State v. Kunze, 988 P.2d 977 (Wash.App. Div. 2 1999).  In Kunze, David Wayne Kuze appealed his convictions for aggravated murder and other crimes, which were based upon the following facts:

An intruder entered the Washington home of James McCann; the intruder bludgeoned McCann in his head, causing his death and bludgeoned McCann's son Tyler in the head, causing a fractured skullTyler later told the police that he had been afraid to look at his attacker closely but that he thought that the intruder was a darkly complected male, possibly Puerto Rican, 25 to 30 years of age, who was wearing gloves but not glasses.  Kunze was in his mid-forties, wore glasses, and had reddish-blond hair.

George Millar, a fingerprint technician with the Washington State Crime Laboratory, processed McCann's home for evidence and discovered a partial latent earprint on the hallway-side surface of McCann's bedroom door.  He "dusted" the print by applying black fingerprint powder with a fiberglass brush and "lifted" the print by applying palm-print tape first to the door and then to a palm-print card. The resulting print showed the antitragus and portions of the tragus, helix, helix rim, and antihelix.

Notwithstanding Tyler's description of the intruder, the police were immediately interested in Kunze, because Kunze had been married to Diana James from 1976 to April 1994, and on December 12, 1994, four days before the intruder entered McCann's home, James told Kunze that she and McCann were planning to be married, which upset Kunze.  The police interviewed Kunze several times and searched his belongings, but the searches did not disclose anything significant.

Meanwhile, Michael Grubb, a criminologist with the Washington State Crime Laboratory, compared the latent print from McCann's bedroom door with photos of the left side of Kunze's face and concluded that the latent print "could have been made by Dave Kunze."  He also thought that "[i]t may be possible to obtain additional information by comparing the [latent print] to exemplar impressions."  Millar and Grubb later met with Kunze to obtain earprint exemplars. For each of the seven exemplars they took, they had Kunze put hand lotion on his ear and press the ear against a glass surface with a different degree of pressure. They then dusted the glass with fingerprint powder and used palm-print tape to transfer the resulting impression onto a transparent plastic overlay. Based upon this process, Grubb concluded that "David Kunze is a likely source for the earprint and cheekprint which were lifted from the outside of the bedroom door at the homicide scene."

The trial court then held a Frye hearing to determine whether such ear print evidence was generally accepted in the relevant scientific community (forensic science), making it admissible expert evidence.  At the hearing, numerous forensic scientists presented testimony about ear print evidence (their testimony is summarized in the opinion), which led the trial court to determine that it was generally accepted and thus admissible.  After Kunze was convicted, he appealed, and the Court of Appeals of Washington agreed with him

It found that 12 out of the 14 forensic scientists who testified at the Frye hearing "stated or implied that latent earprint identification is not generally accepted in the forensic science community."  The only two dissenters were Grubb and Dutch policeman named Cor Van der Lug, whom the court found did not even explicitly say that ear print evidence was generally accepted in the forensic science community. The appellate court thus found the ear print evidence inadmissible, and I have not been able to find a subsequent U.S. case where such evidence has been deemed admissible.

It's important to note that while U.S. courts thus don't allow such latent ear print testimony, other evidence about ear prints.  As the appellate court noted,

      "Nothing in our holding bars testimony at retrial concerning visible similarities and differences between the latent print and the exemplars. This type of comparison-an 'eyeballing' of readily discernable similarities and differences-is based on 'visual techniques' that 'present jury questions,' or, in alternative terms, on personal knowledge that can readily be understood and evaluated by the jury.  Thus, it need not be supported by a showing of general acceptance."


May 12, 2008 | Permalink | Comments (0) | TrackBack (0)

Go Speed Go!: North Carolina Allows Accident Reconstructionists To Opine About The Speed Of Vehicles

An opinion from late last year indicates that North Carolina has recently changed its tune with regard to the permissibility of accident reconstructionists opining about the speed of a vehicle.  Back in 1960, the Supreme Court of North Carolina rendered an opinion in Shaw v. Sylvester, 116 S.E.2d 351 (N.C. 1960), in which it concluded, inter alia, that

     "one who does not see a vehicle in motion is not permitted to give an opinion as to its speed. A witness who investigates but does not see a wreck may describe to the jury the signs, marks, and conditions he found at the scene, including damage to the vehicle involved. From these, however, he cannot give an opinion as to its speed. The jury is just as well qualified as the witness to determine what inferences the facts will permit or require."

As the North Carolina Court of Appeals' opinion in State v. Hazelwood, 652 S.E.2d 63 (N.C. App. 2007), makes clear, however, in 2006 the North Carolina General Assembly enacted N.C. Gen.Stat. Section 8C-1, Rule 702-i, which ovverruled Shaw and allowed "[a] witness qualified as an expert in accident reconstruction...[to] give an opinion as to the speed of a vehicle even if the witness did not observe the vehicle moving."  I think that North Carolina's change in course makes sense, and its decision appears consistent with the decisions of other states across the country. See, e.g., Bryant v. Buerman, 739 So.2d 710, 712-13 ((Fla.App. 4 Dist. 1999) ("An opinion of an accident reconstruction expert witness regarding the speed of a vehicle at the time of an accident is admissible, so long as the expert's testimony is helpful to the jury."). 


May 12, 2008 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 11, 2008

I Do Not Think It Means What You Think It Means: Mississippi Court Misuses Harmless Error Doctrine In Mother's Day Related Case

The Court of Appeals of Mississippi's recent opinion in O'Neal v. State, 977 So.2d 1252 (Miss.App. 2008), stretches the meaning of the term "harmless error."  In O'Neal, Shawn Gavin O'Neal and Mary Landry were involved in a romantic relationship and lived together in the same household along with Landry's teenage son, Nicholas.  In August 2004, the three were having a cookout at their home; Nicholas eventually left the house, which left O'Neal and Landry alone together.  According to Landry's testimony at trial, she was afraid of being alone with O'Neal, so she decided to leave, but as she was pulling her car out of the garage, O'Neal reached into the car to pull the keys out of the ignition.  Landry claimed that O'Neal grabbed her hair and pulled her out of the car; as she resisted, he kicked her in the leg with his steel-toed boots and stomped on her back and side before she passed out from the pain.

Paramedics later arrived, and as they were attending to Landry, O'Neal told an investigator from the sheriff's department that he was trying to keep Landry from driving while intoxicated. He said that while he was trying to get her out of the car, their dog got in the way, and he tried to kick the dog, but he kicked Landry instead.  At trial, O'Neal testified that as he was helping Landry out of the car, he lost his balance, and they both fell over. A responding officer testified at trial that Landry was in a great deal of pain. Landry was later diagnosed with a broken femur.

At trial, Nicholas testified that O'Neal told him two different versions of what happened. Nicholas claimed that O'Neal called him to tell him to come home because his mother had tripped over the dog and injured her leg. Nicholas claimed, however, that after he arrived at the house, O'Neal told him that, as Landry was trying to get out of the car, the dog got in her way, and O'Neal tried to kick the dog, but he missed and kicked Landry.  Nicholas further testified that he found a necklace that he had given to his mother for Mother's Day in the garage. The necklace was broken into pieces with a lock of hair stuck to it.  Nicholas, however, did not turn the necklace over to the police or mention finding it; instead, he kept it until he delivered it to the district attorney just days before the trial began.

From the opinion, it appears that the only witness besides Landry, O'Neal, Nicholas, and the officer who gave relevant testimony was Dr. Barbieri, the orthopedic surgeon who repaired Landry's broken femur. He stated that the type of break that Landry sustained was usually the result of a high-energy force like a fall from a great height or a car accident, not the result of a simple fall.  Photographs of O'Neal's bruises were also introduced at trial  After O'Neal was convicted of aggravated domestic violence he raised two evidentiary arguments on appeal.

The first argument was that the court erred by allowing testimony about the necklace, which was not produced until days before trial.  The Court of Appeals of Mississippi doubted that the trial court committed error and further found that "testimony about the broken necklace was cumulative evidence of Landry's testimony that she was violently removed from the car by her hair and thrown onto the garage floor by O'Neal. Thus, any error created by the admission of the necklace was harmless in nature."

The second argument was that Dr. Barbieri was not classified as an expert witness an yet rendered expert opinion testimony regarding causation.  The Court of Appeals of Mississippi agreed with O'Neal but found that the admission of Dr. Barbieri's testimony was harmless error because "[e]ven without Dr. Barbieri's testimony as to causation, there was sufficient evidence submitted to the jury to establish the crime of aggravated domestic violence. Landry testified that O'Neal forced her out of her car, threw her down on the garage floor, and kicked and stomped on her leg and back. Photographs that show the bruises on her body, which were consistent with her testimony, were admitted into evidence. The officer who arrived on the scene testified that Landry was in a great deal of pain from the injury."

In other words, the only evidence of O'Neal's guilt was Landry's testimony.  The photographs showing bruises on Landry's body were consistent with her story, but they were also ostensibly consistent with O'Neal's story at trial that Landry and he fell over while he was helping her out of the car.  This is where Dr. Barbieri's testimony about the injuries being caused high energy force rather than a simple fall was necessary.  Similarly, the officer's testimony that Landry was in a great deal of pain was consistent with either O'Neal's story or Landry's story. This is where the testimony about hair in the necklace was necessary to corroborate Landry's claim that O'Neal grabbed her by the hair.

Now, certainly, Landry's testimony was more credible than O'Neal's story based upon the fact that O'Neal apparently told a few people slightly different accounts of what happened; however, I simply don't see how the Court of Appeals of Mississippi could have found that the admission of the only testimony corroborating Landry's testimony was "harmless error."


May 11, 2008 | Permalink | Comments (0) | TrackBack (0)