EvidenceProf Blog

I Want A Lawyer...If I Go To Jail: Supreme Court Of Iowa Finds Conditional Request For Counsel Insufficient To Invoke Fifth Amendment Right To Counsel

DETECTIVE: Um, you have the right to a lawyer, talk to a lawyer for advice before I ask any questions and with you before-during questioning if you wish. If you can't afford one, one will be appointed to you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the stop right to stop answering at any time until you talk to a lawyer. And I will give you a copy of this in writing. I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing.

EFFLER: I do want a court-appointed lawyer.

DETECTIVE: Okay.

EFFLER: If I go to jail.

In the following exchange, has Effler, the criminal defendant, invoked his Fith Amendment right to counsel. According to the recent opinion of the Supreme Court of Iowa in State v. Effler, 2009 WL 1491444 (Iowa 2009), the answer is, "No." 

In Effler, 

Melissa Martin was babysitting J .M., a two-year-old girl, for the first time. Martin took J.M. to the Des Moines Central Library. Martin stood at a fifteen-minute internet station, and J.M. stood beside her leg. A few minutes later, Martin noticed J.M. was no longer there and began calling out her name. One of the librarians began a search for the child and remembered seeing Effler handing a toy to a toddler girl. The librarian suggested checking the men's bathroom. Martin and the librarian rushed over to the men's bathroom. The librarian tried to open it with her key, but it was locked from inside. They started pounding on the door calling the child's name. They heard two “bloodcurdling” screams followed by silence. The librarian asked her staff to call the maintenance man, who pried the lock open with a screwdriver. Inside the bathroom, they found a shirtless Effler kneeling next to J.M., who was completely naked. Martin picked up J .M. and ran out. Staff members slammed the door shut, preventing Effler from escaping. Two men held the door shut until the police arrived. The police wrestled Effler to the floor, handcuffed him, and took him to the Des Moines Police Station.

At the police station, a detective interviewed Effler in a small interview room, leading, inter alia, to the aforementioned exchange. After that exchange, Effler waived his Miranda rights, made incriminatory statements, and was convicted of first-degree kidnapping, second-degree sexual abuse, and failure to register as a sex offender after a 2002 conviction for sexual assault in Texas. Effler thereafter appealed, and the Court of Appeals of Iowa reversed, finding that the State violated his Fifth Amendment right to counsel. 

The Supreme Court of Iowa disagreed. That Court noted that, pursuant to Davis v. United States, 512 U.S. 452 (1994), for Effler to have invoked his right to counsel, he must have done so unequivocally and unambiguously. According to the Court, Effler's problem was that 

[t]here are a few different ways to interpret the conditional clause 'if I go to jail.' One possibility is 'I want a lawyer when I go to jail.' Under that interpretation, Effler's statement was conditional and ambiguous. He wanted a lawyer if and when he went to jail. At the time of the interrogation and at the time Effler made that statement, he was not in jail, and no charges had been filed against him. He was seated at a table across from a detective and drinking a can of pop. His statement did not indicate he wanted a lawyer at that moment. As the condition of going to jail had not been fulfilled, the conditional nature of the request rendered it ambiguous.

Another interpretation of Effler's statement is 'I want a lawyer if I am going to jail.' Even under this interpretation, it is arguable whether the condition had been fulfilled. Surely, the detective knew Effler was going to jail. However, it is unclear whether Effler himself knew he was going to jail after the interrogation. Effler thought he was being booked for public intoxication, and the detective told him 'well if they book you for intox, then ... you're not going to get released.' However, the detective also indicated he was not sure whether Effler was going to be booked for public intoxication. It could be argued the condition 'if I'm going to jail' had been satisfied at the time Effler requested counsel, since Effler was indeed going to jail after the conclusion of the interview. However, to establish the condition of Effler's request for an attorney (i.e.jail) had been satisfied requires changing the word 'go' to 'going.' Such a change expands the meaning of Effler's statement.

The very fact that we have to dissect Effler's statement and engage in an in-depth discussion to determine exactly what he meant by 'if I go to jail' indicates his statement was ambiguous, and it is uncertain whether 'a reasonable police officer in the circumstances would understand the statement to be a request for an attorney....' As a couple of different interpretations of Effler's statement 'I do want a court-appointed lawyer...if I go to jail' are possible, it is unclear whether Effler was invoking his right to counsel. A reasonable police officer under these circumstances would have understood only that Effler 'might be invoking the right to counsel....' Officers have no obligation to stop questioning an individual who makes an ambiguous or equivocal request for an attorney....Thus, Effler did not effectively invoke his Fifth Amendment right to counsel, and the detective was permitted to continue questioning Effler.  

I'm not the biggest fan of Davis, but it is the law of the land, and I think that the Iowa Supremes were correct to construe Effler's alleged request for an attorney as too equivocal, ambiguous, and conditional to count as an invocation of the Fifth Amendment right to counsel. 

-CM

Lay Witnesses Under The Influence: Supreme Court Of Delaware Finds Lay Witness Properly Rendered Testimony Identifying Methamphetamine

Like its federal counterpart, Delaware Rule of Evidence 701 indicates that

If [a] witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702.

In Campbell v. State, 2009 WL 1463460 (Del.Supr. 2009), the Supreme Court of Delaware had to address the issue of whether a habitual drug user could offer lay opinion testimony identifying a substance that he purchased from the defendant as methamphetamine. And, following the lead of several other courts, the court found that he could.

In Campbell,

the Delaware State Police (DSP) set up a wiretap on Raul Morales' phone as part of a drug investigation. DSP also placed a GPS tracker on Morales' car and set up surveillance on him. During the investigation, DSP determined that Charles Campbell was supplying methamphetamine to Morales who in turn sold it to two purchasers, Michael Kanich (a/k/a Hippie) and Billie Gillespie.

As a result, Campbell was charged and later convicted of Trafficking in Methamphetamine and Delivery of Methamphetmaine. Because the DSP never actually seized any of the drugs Campbell allegedly sold, the prosecution had to rely upon the testimony of Kanich in securing Campbell's conviction. According to Kanich he was given a drug from Morales/Campbell, and, when he swallowed it, he experienced the same effects as he had experienced over his 15 to 20 years of methamphetamine use.

After Campbell was convicted, he appealed, claiming that only an expert witness could have testified that the substance sold to Kanich was methamphetamine. The Supreme Court of Delaware, however, affirmed, relying primarily upon its prior opinion in Wright v. State, 953 A.2d 188 (Del. 2008). In Wright,

Raheem Cannon supplied cocaine to [the defendant] Wright. Cannon testified that the substance he sold to Wright, and which Wright later sold in the transaction for which he was charged with delivery of cocaine, was in fact cocaine. Cannon testified that he had been selling cocaine on a daily basis for about two years, and that, although he never used cocaine, he knew that the substance he placed in a small baggie and gave to Wright was cocaine because "[i]f you deal with it every day, you can just tell from the texture and the smell and just the look of it." Cannon testified that he had received the cocaine from someone else and divided it into smaller portions, which he put in plastic baggies. He testified that the cocaine was a mixture of powder and chunks and had a "fuelly smell" like gasoline. He also testified that no one had ever complained that he had sold fake cocaine. The police never recovered any cocaine in that case. [The Supreme Court of Delaware] found that the dealer's description and familiarity with the substance was sufficient evidence, beyond Wright's confession that he sold cocaine, to satisfy the corpus deliciti rule. 

The Court also noted that at least three federal appellate courts have also allowed lay opinion testimony identifying drugs under Federal Rule of Evidence 701. For instance, in United States v. Paiva, 892 F.2d 148 (1st Cir. 1989), the First Circuit found that "[a]lthough a drug user may not qualify as an expert, he or she may still be competent, based on past experience or personal knowledge and observation, to express an opinion as a lay witness that a particular substance perceived was cocaine or some other drug." Indeed, I am not aware of any courts deeming lay opinion testimony identifying drugs inadmissible as a general proposition although I am sure that there are some cases I am missing. 

-CM

Cause of Death: Virginia Case Reveals That The Commonwealth Has No Criminal Counterpart To Federal Rule Of Evidence 703

Federal Rule of Evidence 703 states that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

As the recent opinion of the Court of Appeals of Virginia in Jones v. Commonwealth, 2009 WL 1438264 (Va.App. 2009), makes clear, however, Virginia does not have a state counterpart to Federal Rule of Evidence 703, at least in criminal cases. 

In Jones, Ronald Jerome Jones appealed from his conviction for second-degree murder. The prosecution secured Jones' conviction in large part through the testimony of Phillip Pope, who testified that James struck the victim several times on the head on the evening of August 19, 1983. After Jones' alleged attack on the victim, she was taken to the hospital and died eight days later, and another central element of the prosecution's case was the testimony of Dr. Marcella Fierro, who at the time of the trial was the Deputy Chief Medical Examiner for the Central District of Virginia. According to Dr. Fierro, the victim's death had resulted specifically from bronchial pneumonia or aspiration pneumonia, which developed as a complication of the victim's head injury. 

According to Jones, however, this expert testimony was improperly rendered because Dr. Fierro reached her conclusion regarding cause of death by relying on University of Virginia medical records that were not admitted into evidence. His argument was partially correct. The court noted that in Simpson v. Commonwealth, 318 S.E.2d 386, 391 (Va. 1984), the Supreme Court of Virginia refused to apply the analysis of Federal Rule of Evidence 703 to Virginia trials, meaning that experts in criminal cases cannot rely upon inadmissible facts or data in reaching an expert opinion (Virginia Code Section 8.01-401.1 does, however, allow experts to do so in civil trials in Virginia).

The problem for Jones, however, was that Dr. Fierro's opinion regarding cause of death was not dependent on the medical records. Instead, Dr. Fierro also reached her conclusion based upon her personal examination of the victim's body during the autopsy, and she testified "that she could have determined Johnson's cause of death by relying solely on facts in evidence." Therefore, the Court of Appeals of Virginia found no problem with Dr. Fierro's testimony and affirmed Jones' conviction .

-CM

The (Non)Science Of Fear: Florida Court Finds Lay Witness Should Have Been Able To Testify That Defendant Appeared Afraid In Murder Appeal

Federal Rule of Evidence 701 indicates that

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Florida's counterpart, Fla. Stat. Section 90.701, is a bit more restrictive. It indicates that

If a witness is not testifying as an expert, the witness's testimony about what he or she perceived may be in the form of inference and opinion when:

(1)  The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness's use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and

(2)  The opinions and inferences do not require a special knowledge, skill, experience, or training.

As the above language makes, clear, however, even in trials in Florida state courts, lay witnesses should be able to testify that a defendant appeared fearful before committing a violent act if that defendant is claiming self-defense at trial. And that was indeed the conclusion of the District Court of Appeal of Florida, Fourth District, in its recent opinion in Bryant v. State, 2009 WL 1531656 (Fla.App. 4 Dist. 2009).

In Bryant, Phillip Bryant was convicted of first degree murder based upon the following facts adduced at trial:

This crime arose out of a dispute between [Bryant] and [Swint]. Appellant Bryant approached the victim, Swint, and confronted him about some light bulbs. Bryant appeared upset. He pulled some brass knuckles from his pocket and swung at Swint. Swint backed up and reached into the back of his friend's truck for a flat bar, which he used to chase Bryant. Bryant went into his apartment and retrieved a gun. Upon exiting the apartment, Bryant aimed the gun at Swint and verbally threatened to kill him, but then aimed the gun down. As Swint approached him, Bryant discharged the weapon.

Unfortunately, the opinion in Bryant doesn't give us much more in the way of facts, but what we do know is that Bryant claimed that he was in fear of Swint because Swint was approaching him with and threatening to kill him. And, in order to corroborate this claim, defense counsel asked an eyewitness for the prosecution on cross-examination

whether she saw Bryant's face when he fired the gun. She replied, "It was fear, like he was afraid." The prosecutor moved to strike on the grounds that it was speculative. The court told the jury to disregard the testimony. The court ruled that the witness could describe what she observed, but she "cannot under any way say he was in fear."  

After Bryant was convicted, he appealed, claiming, inter alia, that the eyewitness should have been able to testify that Bryant appeared to be afraid before shooting Swint. And the court agreed, finding that

[t]he trial court abused its discretion by preventing Byrd from testifying that Bryant appeared fearful, because the evidence was both admissible and relevant to his self-defense claim. Under the first prong of section 90.701, the description was necessary for Byrd to adequately communicate her observations, and the testimony would not have misled the jury. Under the second prong, no specialized training was required to recognize fear in someone's expression. Testimony that Bryant appeared fearful was relevant to demonstrate that he “actually believed that the danger was real.

The court then reversed because this error was not harmless, concluding that

Bryant testified that Swint had a crowbar in his hand earlier and continued to threaten to kill him as he approached Bryant who was holding the gun. While Bryant himself testified that he was in fear, the jury may have very well placed greater credence in an independent eyewitness. Furthermore, by refusing to permit Byrd to testify to observing a fearful expression, Byrd then had to use various other terms and settled on "angry." That constitutes an entirely different emotion than “fear” and one inconsistent with a claim of self-defense. In and of itself it may have swayed the jury on the self-defense claim. 

-CM

The Areas Of My Expertise: Alabama Federal Court Allows Expert Eyewitness Testimony Despite Eleventh Circuit Precedent

Should expert witnesses be able to testify regarding the unreliability of eyewitness identifications (and cross-racial eyewitness identifications)? It is a question that has led to contradictory conclusions across the country, and the latest court to address it was the United States District Court for the Middle District of Alabama in its recent opinion in United States v. Smith, 2009 WL 1444446 (M.D. Ala. 2009). 

In Smith,

Montgomery Police responded to a report of a bank robbery at Compass Bank. After several weeks, police identified the robber as Smith and a warrant was issued for his arrest. When a United States Marshal Service task force went to arrest Smith at a friend's home, two shots were fired at arresting officers from inside....Based on the[se]...events, Smith was charged with armed robbery; assault of a federal officer; carrying a firearm during a crime of violence (the assault of a federal officer); and being a felon in possession of a firearm. A jury found Smith guilty of bank robbery and illegally possessing a firearm, but acquitted him of assaulting a federal officer and carrying a firearm during a crime of violence.

The opinion in Smith, however, was not really concerned with the facts of the case. Instead, the opinion only dealt with one issue. You see, during trial, Smith sought to have an expert witness testify regarding the unreliability of eyewitness identifications, and the court decided the issue partially in favor of Smith and partially in favor of the State. At the time, the court promised to issue a written opinion setting forth its reasoning in more detail, and that was the opinion in Smith.

Smith is African-American, and one of the State's eyewitness to the bank robbery was Caucasian. The expert witness at issue was Dr. Sol Fulero, who

holds a Ph.D. in psychology and now teaches the subject at the university-level. He has additionally demonstrated extensive knowledge of the ongoing, most recent developments in the field of eyewitness identification. Indeed, Fulero has authored or co-authored roughly 60 publications, primarily addressing how psychological factors affect the administration of criminal justice. Further, he is a reviewer for several major journals.

Based upon these credentials, the court found under Federal Rule of Evidence 702 that Dr. Fulero was qualified in the field and equipped to provide the jury with expert testimony on eyewitness identifications. But what type of testimony could he provide? 

Dr. Fulero's expert testimony went principally to the reliability of witness identifications of Smith as the bank robber. While Smith was found guilty of the robbery after the court allowed Fulero's expert testimony, the court believes that an opinion setting forth its reasoning for allowing the testimony is still warranted. According to the court, Dr. Fulero could testify generally about the science of eyewitness identifications. Specifically, 

he was allowed to supply jurors with information about some specific factors that, according to well-established social science-research, impact witness accuracy and, as a result, might assist them in their own determination of the facts. Chief among these factors is the information concerning cross-racial eyewitness identifications; the evidence concerning the reliability of such identification is stunning and robust and, of crucial importance here, not likely well understood by juries. In addition, the expert evidence also indicates that the accuracy of identifications, including cross-racial identifications, is impacted by whether the witness perceived the event in a high-stress environment and whether the witness has subsequently been exposed to facts that potentially altered his or her memory of an event.

Conversely, the court did not allow Dr. Fulero to testify about the specific (un) reliability of the prosecution's eyewitnesses in the prosecution's case. This ruling was consistent with rulings from some other courts from around the country, which have applied a similar dichotomy. And it did so only after finding (1) under Federal Rule of Evidence 702 that Dr. Fulero's testimony was reliable (the theories underlying his testimony had been well-tested in peer-reviewed publications, he testified that his methods were generally accepted, etc.) and that his testimony would aid the jury (whose "decision-making process can be enhanced by learning how [certain] factors combine to impact perception and memory); and (2) under sufficiently probative to pass the Federal Rule of Evidence 403 balancing test.

And it did so despite some courts, including the Eleventh Circuit, not being very receptive to such testimony. How did it do so? Well, in United States v. Smith, 122 F.3d 1355, 1358 (11th Cir. 1997), the Eleventh Circuit held that "a district court does not abuse its discretion when it excludes expert testimony on eyewitness identification." The court in Smith importantly noted, however, that the Eleventh Circuit did not say that a district court would abuse its discretion by admitting such testimony. Indeed, the Eleventh Circuit noted that district courts have broad discretion in deciding whether to admit or exclude expert testimony and thus felt secure in allowing Dr. Fulero to render his expert eyewitness testimony.

-CM

Sitting On The Jury: New York Court Precludes Jury Impeachment Based Upon Defendant's Inaction During Trial

A lot of posts on this blog have dealt with Federal Rule of Evidence 606(b) and state counterparts and whether and when jurors may impeach their verdicts after they have been rendered. According to most courts, including New York state courts, jurors may impeach their verdicts if they were tainted by extraneous prejudicial information, such as news articles discussing evidence deemed inadmissible at a defendant's trial. But what happens if defense counsel is aware of such extraneous prejudicial information during trial but does not request a mistrial or a jury inquiry? The answer, at least according to the New York Supreme Court, Appellate Division, First Department, in its recent opinion in People v. Liggan, 2009 WL 1373775 N.Y.A.D. 1 Dept. 2009), is that the defendant is out of luck.

In Liggan, Stacy Liggan was convicted of criminal possession in the third degree. He subsequently appealed, claiming that the verdict was tainted because one of the jurors was aware that one of Liggan's original codefendants had pleaded guilty to the subject crime, even though that plea had been deemed inadmissible at Liggan's trial. And, as noted, if this was the first that Liggan or his attorney had heard about such knowledge, Liggan likely would have been successful in his attempt to have the juror impeach the verdict. The problem for Liggan, however, was that this was not the first thing that his attorney and he had heard about such knowledge.

Instead, 

[d]uring the trial, the court and all parties learned that one or more news articles about a jailhouse fight between one of defendant's original codefendants and a defendant in a notorious unrelated case tangentially mentioned that the codefendant had pleaded guilty in this case. At that time, defendant's counsel declined the trial court's invitation to conduct an inquiry of the jurors, instead requesting that the court reiterate its admonition to the jurors to avoid reading news accounts about the trial.     

The court thus found that 

Since counsel was aware, during the trial, of a potential danger of exposure of jurors to this information, but declined a remedy that would have obviated the need for postverdict proceedings or a new trial, the postverdict disclosure was not a basis for setting aside the verdict.

This seems like the correct ruling to me. If a defendant is convicted based upon extraneous prejudicial information about which he was unaware during trial, he should be able to have jurors impeach their verdict, which was not based upon the evidence presented. But when the defendant is aware of such extraneous prejudicial information during trial and does not seek a mistrial or removal of jurors, he should not be given a second bite of the apple after the verdict has been rendered.

-CM