EvidenceProf Blog

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

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Saturday, February 21, 2009

Double Coverage: Supreme Court Of Iowa Finds Dying Declaration And Excited Utterance Exceptions Both Applied In Murder Appeal

The recent opinion of the Supreme Court of Iowa in State v. Harper, 2009 WL 277087 (Iowa 2009), provides a nice (but disturbing) illustration of something that I teach my Evidence students: Statements falling under the dying declaration exception to the rule against hearsay also often fall under the excited utterance exception (and also the less useful medical treatment/diagnosis exception).

In Harper, the fire department arrived at Holly Michael's home and found her in the basement, laying face down, hands and feet bound, and wrapped in a burning comforter. Her hands and arms were severely burned, and the fingers on her left hand were charred off. In the ambulance, en route to the hospital, Michael insisted that she wanted to die.

At the emergency room, a hospital staff member heard Michael say "I think I'm going to die." An x-ray technician also heard Michael say, "please don't kill me" and "Harper did it, Harper did it." Furthermore,

One of the treating physicians initially thought Michael was dead based on the severity of her burns. After he discovered she was alive and conscious, he asked her what had happened. She said that Sessions Harper had raped her, tied her, and set her house on fire. The doctor asked her to repeat what she had said, and Michael again said that Sessions Harper had raped her, tied her, and set her house on fire. Another physician treating Michael also heard what she had said. Based upon Michael's statements, a doctor performed a rape kit examination. Another attending physician treating Michael asked her who had done this, and Michael replied "Sessions Harper. He tied me up, raped me, and left me in the basement."

Eighteen days after the incident, Michael died from complications from the burns and inhalation injuries. Harper was thereafter arrested and charged with first-degree sexual abuse, kidnapping, murder, and arson. After he was found guilty on all charges based in large part on the testimony of the above medical service providers, Harper appealed, claiming, inter alia, that Michael's statements were inadmissible hearsay and/or admitted in violation of his rights under the Confrontation Clause.

The Supreme Court of Iowa disagreed, finding that Michael's statements were admissible under both the dying declaration and the excited utterance exceptions to the rule against hearsay. Iowa Rule of Evidence 5.804(a)(2), the dying declaration exception, provides an exception to rule against hearsay for:

A statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant’s impending death.

The court correctly found that this exception applied because Michael indicated that she thought she was going to die (indeed, one doctor even thought that she was dead), and her statements clearly concerned the cause of what she believed to be her imminent death.

Meanwhile, Iowa Rule of Evidence 5.803(2), the excited utterance exception, provides an exception to the rule against hearsay for:

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Again, the court correctly found that this exception applied because Michael made her statements soon after she was rescued, and she made her statements while still under the stress of excitement caused by the startling event of her burning. The court also properly found that the fact that some of Michael's statements were made in response to questions was not fatal because "the fact that a statement was prompted by a question does not automatically disqualify it as an excited utterance."

The Supreme Court of Iowa also indicated that Michael's statements could have been admissible under Iowa Rule of Evidence 5.803(4), which provides an exception to the rule against hearsay for:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

But because it had already found that the other two exceptions applied, it did not need to resolve this issue. Even if this exception would have applied (and I think it would have), it wouldn't have been very useful because generally the medical treatment/diagnosis exception has been read so as not to allow statements concerning the identity of the perpetrator to be admissible

(Finally, the court concluded that Michael's statements were not "testimonial," meaning that there was no Confrontation Clause problem).

-CM

February 21, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, February 20, 2009

Call for Proposals by the Workshop Program Committee for the AALS Section on Academic Support

Call for Proposals by the Workshop Program Committee for the AALS Section on Academic Support

2010 AALS Annual Meeting in New Orleans, Louisiana
Annual Meeting Dates: January 6-10, 2010

The theme of our 2010 AALS workshop will be:

“Transforming Learning in the Classroom: the 21st Century Law Professor”

The AALS Section on Academic Support will showcase how professors are transforming the learning environment of their classrooms through innovative and creative methods. Many of these methods have their roots in traditional academic support tenets of varying lesson plans to reach different learning styles, providing feedback throughout the semester, assessing students in creative ways, engaging students both in and out of the classroom, and encouraging students to take responsibility for their own learning. The committee requests proposals that demonstrate modern classroom and teaching techniques including but not limited to: active learning activities, teaching assessment procedures, exam drafting, skills development in doctrinal courses, and innovative lesson plans. Show us what’s new and different in legal education in the 21st century!

The Program Committee will give preference to presentations designed to engage the workshop audience, so proposals should contain a detailed explanation of both the substance of the presentation and the interactive methods to be employed. In addition, we would like to highlight talent across a spectrum of law schools and will look for variety in presentations and presenters. If you do not have a proposal to submit, but are interested in participating in a presentation, please contact Emily Randon (see below), as assistance with the overall workshop is always welcome.

Based on participant numbers for the last several years, we anticipate over 100 people attending the program. To assist the presenters in the interactive piece, the program committee members and other volunteers will be on hand to act as facilitators with audience members.

Proposals must include the following information:

1. A title for your presentation

2. A brief description of the objectives or outcomes of your presentation.

3. A brief description of how your presentation will support your stated objectives or outcomes.

4. The amount of time allocated for your presentation and for the interactive exercise. No single presenter should exceed 45 minutes in total time allowed. Presentations as short as 15 minutes will be acceptable.

5. A detailed description of how the presentation will be interactive.

6. Whether you plan to distribute handouts, use PowerPoint, or employ other technology.

7. A list of the conferences at which you have presented within the last three years, such as AALS, national or regional ASP or writing conferences, or other academic conferences. (The committee is interested in this information because we wish to select and showcase seasoned, as well as fresh, talent.)

8. Your school affiliation, title, courses taught, and contact information (include email address and telephone number).

9. Any articles or books that you have published describing the lesson you will be demonstrating.

Send proposals by Monday, March 9, 2009 to Prof. Emily Randon, University of California, Davis School of Law, at the email address of elrandon@ucdavis.edu. If you have questions, feel free to contact Emily Randon directly at 530-752-3434.

If you know of colleagues who are true innovators in techniques that achieve the objectives of the academic support community, please encourage them to submit proposals!

We look forward to seeing you in New Orleans!

The ASP Section Program Committee:
Emily Randon, Chair
Robin Boyle Laisure
Hillary Burgess
Barbara McFarland
Kathy Garcia
ASP Section Chair: Pavel Wonsowicz

February 20, 2009 | Permalink | Comments (0) | TrackBack (0)

Blue Kentucky Girl: Kentucky Court Finds That Witness' Incompetence Extends To Her Hearsay Statements

The recent opinion of the Court of Appeals of Kentucky in Harris v. Commonwealth, 2009 WL 350615 (Ky.App. 2009), reveals that if a witness is incompetent to testify at trial, her pre-trial statements also typically won't be admissible under any hearsay exception.

In Harris, Bridget Harris appealed from her conviction for first degree criminal abuse. That conviction was based in large part on the allegations of her five year-old child, A.H., who claimed that Harris burned her with a cigarette. A.H., however, did not testify to these facts at trial because the trial court deemed her incompetent to testify under Kentucky Rule of Evidence 601(b), which indicates that:

A person is disqualified to testify as a witness if the trial court determines that he:

(1) Lacked the capacity to perceive accurately the matters about which he proposes to testify;

(2) Lacks the capacity to recollect facts;

(3) Lacks the capacity to express himself so as to be understood, either directly or through an interpreter; or

(4) Lacks the capacity to understand the obligation of a witness to tell the truth.

In deeming A.H. incompetent to testify, "the trial court expressed reservations that A.H. met any of the minimal qualifications set out in KRE 601(b), with the exception that the witness demonstrated the ability to perceive." Specifically, in reaching this conclusion, the trial court noted that:

A.H. gave inconsistent, contradictory and disjointed accounts of the incident. At one point, A.H. denied that Bridget had burned her, stating that she had burned herself on a stove. Indeed, she tended to agree with whatever question was asked of her. Although A.H. could give responsive answers to biographical questions, she demonstrated little practical understanding about the obligation to tell the truth. Moreover, A.H.'s statements at the competency hearing clearly showed that she was unable to accurately distinguish between reality and imagination.

So, how did A.H.'s allegations make it to the jury? Well, A.H. made the burning allegations to nurse practitioner Stacey Smallwood and social worker Patricia Reynolds, and, after the trial court deemed A.H. incompetent to testify, it permitted Smallwood and Reynolds to testify about A.H's allegations pursuant to Kentucky Rule of Evidence 803(4). Under that Rule, there is an exception to the rule against hearsay for:

Statements made for purposes of medical treatment or diagnosis and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis.

According to the Court of Appeals of Kentucky, the problem with this conclusion is that a child's testimonial incompetence generally extends to her hearsay statements. In other words, a witness' incompetence to testify at trial generally renders her incompetent to "testify" as a hearsay declarant. Indeed, the court noted that in B.B. v. Commonwealth, 226 S.W.3d 47 (Ky. 2007), the Supreme Court had rejected the exact same route of admissibility that the trial court approved in Harris.

And while the court in Harris noted that the court in B.B. merely found that a declarant's incompetence is a consideration in determining the admissibility of the hearsay statements, it found that based upon A.H.'s clear inability to testify at trial, her statements could not be admitted under Kentucky Rule of Evidence 803(4)

-CM

February 20, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 19, 2009

The Bloodhound Gang: Detroit Free Press Article Addresses Admissibility Of Bloodhound Tracking Evidence

An article in Monday's Detroit Free Press mentions that "[a]s an annual treat for Free Press staffers, a few dog owners participating in the 2009 Detroit Kennel Club’s dog shows Feb. 28 and March 1 brought their dogs in for a visit." In providing information about the bloodhounds, the article indicates that:

Their background as scent hounds gives bloodhounds the distinction as the only breed whose testimony is admissible in some courtrooms. They have to prove their training and background and their handler has to be sworn in, not the dog.

This is an accurate statement. As the Court of Appeals of South Carolina found in State v. White, 642 S.E.2d 607, 614 (S.C.App. 2007), courts generally admit evidence that bloodhounds tracked down a defendant if the prosecution can establish that the bloodhounds

(1)...are of pure blood, and of a stock characterized by acuteness of scent and power of discrimination; (2)...possess these qualities, and have been accustomed and trained to pursue the human track; (3)...have been found by experience reliable in such pursuit; [and] (4)...were put on the trail of the guilty party, which was pursued and followed under such circumstances and in such way as to afford substantial assurance, or permit a reasonable inference, of identification.

Moreover,

[a] foundation for the admission of dog tracking evidence is sufficient if it provides evidence as to (1) the extent of the handler's experience and training; (2) the dog's characteristics of scent acuity and power to discriminate between human and other scents; and (3) the handler's assessment of the dog's reliability.

On the other hand, a minority of states (including Illinois), hold that dog tracking evidence is per se inadmissible because

(1) the actions of the bloodhounds are unreliable; (2) the evidence constitutes hearsay; (3) the defendant is deprived of his constitutional right to confront the witnesses against him; (4) the defendant should not be placed in jeopardy by the actions of an animal; (5) a defendant cannot cross-examine the dogs; and (6) a jury might be awed by such testimony and give it much greater weight and importance than warranted."

And at least with regard to this second conclusion, I disagree with these courts because, as I noted in a previous post, in People v. Centolella, 305 N.Y.S.2d 279 (N.Y.Co.Ct. 1969), the court correctly found that bloodhound tracking evidence

falls into the category of opinion evidence rather than hearsay. The animals are not witnesses against a defendant any more than a microscope or a spectograph. They are not subject to cross-examination any more than the animal. It is the handler who is the witness and he is merely asked to testify to what the animal actually did, not his opinion as to guilt or innocence of a person. A person is no more placed in jeopardy by the action of an animal than he is by a breath analyzer or a blood test.

Of course, some courts go in the other direction and "conclude that evidence of tracking by a dog is admissible where the dog is not a bloodhound as long as the final three foundation requirements [from the first test above] are satisfied. State v. Green, 334 S.E.2d 263, 265 (N.C.App. 1985).

-CM

February 19, 2009 | Permalink | Comments (0) | TrackBack (1)

Wednesday, February 18, 2009

A Trial That Will Live In Infamy?: Washington Case Reveals That The State Has No Version Of Rule 606(b)

A Washington judge should be able to hear about racist statements that jurors allegedly made during a medical malpractice trial because Washington state does not have a state counterpart to Federal Rule of Evidence 606(b).

An article on the case in which the racist statements were allegedly made doesn't provide much in the way of details, but it appears that Darlene and Bill Turner sued Dr. Nathan P. Stime, a Spokane general practitioner, whom they claimed committed medical malpractice in connection with a cancer diagnosis. The jury's verdict went against the Turners, and their attorney, Mark D. Kamitomo, claims that the verdict was not based upon the evidence presented at trial, but upon the jury's racism, and has filed a motion for a new trial. What separates this case from many of the cases I have discussed on this blog (such as here, here, here, here, here, and here) is that the alleged racism was directed against Kamitomo himself and not his clients.

After the verdict was entered, one juror came forward and alleged that

five jurors — three women and two men — had disparaged Kamitomo in closed-door jury proceedings, calling him "Mr. Kamikaze," "Mr. Miyashi" and "Mr. Miyagi," a character in the movie "The Karate Kid."

Another juror corroborated this claim and also indicated in an affidavit that

One juror remarked on the coincidence that their verdict would be read on Pearl Harbor Day - saying that given the date, another juror’s racially insulting remark about Kamitomo was "almost appropriate" (In an interesting/sad twist, Kamitomo's father was 8 years old when his family was seized in Vancouver, B.C., and relocated to an internment camp at Lemon Creek, B.C., after the Japanese attacks on Pearl Harbor).

So, as noted, the was not the typical juror racial bias case, and it likely won't have the typical result. As I have noted on this blog,

"Rule[606(b)] has repeatedly been held to preclude a juror from testifying, in support of a motion for a new trial, that juror conduct during deliberations suggests the verdict was tainted by racial bias." Victor Gold, Juror Competency to Testify that a Verdict was the Product of Racial Bias, 9 ST. John's J. Legal Comment.125 (1993).

Washington, however, does not have a version of Federal Rule of Evidence 606(b). According to the Court of Appeals of Washington, Division 2, in Marvik v. Winkelman, 109 P.3d 47, 50 (Wash.App. Div. 2 2005),

Although many jurisdictions do not allow a juror to impeach a verdict, our State allows juror affidavits or declarations to impeach a verdict as long as the information provided does not relate to a factor that "inheres in the verdict...." Generally, a fact "inheres in the verdict" if it "relates to the effect of evidence or events upon the mind of a juror, or is directly associated with the juror's reasons, intent, motive, or belief, when reaching the verdict."

Thus, the jurors should be able to impeach their verdict through testimony concerning the racist statements but not by testifying about the effect of any of those statements on their verdict.

(Hat tip to Professor Ann Murphy, who posted the story on the Evidence Professor Listserv).

-CM

February 18, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 17, 2009

Of A Constitutional Character?: Eastern District Of Michigan Denies Constitutional Challenge To Admission Of "Other Bad Acts" Evidence

In its recent opinion in Fields v Howes, 2009 WL 304751 (E.D. Mich. 2009), the United States District Court for the Eastern District of Michigan denied Randall Lee Fields' petition for a writ of habeas corpus, finding that "[t]here is no clearly established Supreme Court precedent which holds that a state violates due process by permitting propensity evidence in the form of other bad acts evidence." And I would imagine that any court would reach the same conclusion, whether presented as part of a habeas petition or as part of a direct appeal.

In Howes, Randall Lee Fields filed a pro se petition for a writ of habeas corpus, challenging his convictions for two counts of third-degree criminal sexual conduct based upon the following facts adduced at trial:

The victim testified that he met defendant when he was approximately twelve years old through defendant's nephew whom the victim met on a school bus. Defendant lived across the street from the victim. The victim also met James Philo, another adult, at defendant's house. After the victim started “hanging out” with defendant, Philo moved into defendant's house and the three of them spent time together watching television and sometimes pornographic films. The victim described one instance when, after consuming alcohol and smoking marijuana, the defendant and Philo went into the bedroom where defendant performed oral sex on the victim. Philo also placed his mouth on the victim's penis. The victim testified that defendant performed oral sex on him on two separate occasions. Deputy Batterson testified that while defendant was in custody on an unrelated domestic abuse matter, he was questioned about his relations with the victim. Defendant provided a statement that corroborated the victim's testimony but added that on one occasion he engaged in oral sex with Philo and the victim in a motel in Toledo, Ohio and that he masturbated the victim on two other occasions.

In his petition, Howes claimed, inter alia, that the trial court erred in admitting "other act" evidence regarding uncharged sexual relations he had with the victim and in admitting testimony that Philo also engaged in sexual acts with the victim. On Howes' direct appeal to the Court of Appeals of Michigan, he had previously argued that this "other act" evidence was inadmissible under Michigan Rule of Evidence 404(b), but that court rejected that argument, concluding that:

The prosecution did not offer this evidence as Rule 404(b) evidence, but rather, as part of the whole story surrounding the criminal acts for which defendant was charged. The evidence was admissible as part of the res gestae of the offenses, independent of MRE 404(b)...." Evidence of other criminal acts is admissible when so blended or connected with the crime of which [the] defendant is accused that proof of one incidentally involves the other or explains the circumstances of the crime...." Here, defendant fostered a relationship between himself and the victim as well as between Philo and the victim. The three spent time together on several occasions watching television and pornographic films. On occasion, defendant offered the victim alcohol and marijuana. It was under these circumstances and on more than one occasion that defendant had sexual relations with the victim and/or Philo had sexual relations with the victim in defendant's presence. These acts were so blended with the crimes defendant was charged with that they incidentally explained the circumstances of those crimes. Therefore, the trial court did not err in admitting this evidence. People v. Fields, 2004 WL 979732 (Mich.App. 2004).

In his petition for writ of habeas corpus, Howes did not reallege this evidentiary argument but instead argued that Michigan violated his right to due process by allowing for the admission of propensity evidence in the form of other bad acts evidence. And, the Eastern District of Michigan rejected that argument, finding that “[t]here is no clearly established Supreme Court precedent which holds that a state violates due process by permitting propensity evidence in the form of other bad acts evidence.”

But what would have happened if Howes raised this argument on his direct appeal to the Court of Appeals of Michigan? Well, the trial court had to admit the other bad acts evidence at issue as res gestae because it does not have a state counterpart to Federal Rule of Evidence 414, which permits the admission of the defendant's other acts of child molestation in his prosecution for child molestation.  And as I recently noted with regard to that Rule, it has withstood multiple constitutional challenges."  I thus don't think that any court under any circumstance would have agreed with Fields.

-CM

February 17, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, February 16, 2009

The Change He Deserved?: Seventh Circuit Engages In Interesting Rule 407 Analysis In Wyeth Appeal

The recent opinion of the Seventh Circuit in Giles v. Wyeth, Inc., 2009 WL 331290 (7th Cir. 2009), provides me with the opportunity to discuss a couple of interesting aspects of Federal Rule of Evidence 407, the subsequent remedial measure rule.

In Giles, Jeff Giles, a forty-six-year-old man, took his life in the fall of 2002. His widow thereafter filed a wrongful death suit against Wyeth, the manufacturer of Effexor, the antidepressant Giles began taking two days before his death. A jury found in favor of Wyeth, and Giles' widow subsequently appealed, claiming, inter alia, that the district court erred by precluding her from introducing warnings that accompanied Effexor in the years following Giles' death.

The first question that the Seventh Circuit had to address was whether the district court excluded evidence of these warnings under Federal Rule of Evidence 407 or Federal Rule of Evidence 403. Rule 407 indicates in relevant part that:

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.

And, Rule 403 provides that:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The Seventh Circuit concluded that the district court excluded evidence of these warnings under Rule 403 for two reasons. First, the district court initially granted Wyeth's motion in limine seeking to exclude this evidence by concluding that "[p]ost remedial measures will not be-they're not admissible. The Court is exercising its discretion not to admit that." If the court were applying Rule 407, its decision would have been mandatory, not discretionary whereas rulings under Rule 403 are discretionary. Secondly, and more importantly, during trial, the plaintiff's counsel asked the district court to revisit its pre-trial ruling, but the court still precluded the evidence, finding that "[u]nder 403, although relevant, the Court's going to exclude this evidence finding that its probative value is substantially outweighed by the confusion of the issues before this...jury."

So, why did this distinction matter? Well, if the district court had deemed the evidence inadmissible under Rule 407, its ruling would have been legal and as such reviewed by the Seventh Circuit de novo. But, because the district court excluded this evidence under Rule 403, its ruling was factual, and the Seventh Circuit could only have reversed for abuse of discretion. And the Seventh Circuit found no such abuse.

The Seventh Circuit engaged in a fairly extended review of the district court's opinion, but in the heart of its analysis, it found that the district court's Rule 403 ruling was proper because:

The warnings that accompanied Effexor after Mr. Giles's death had little, if any, probative value in this case. First, and most significantly, the excluded warnings did not help establish that Wyeth knew or should have known about an increased risk of suicidality in adults of Mr. Giles's age. Mr. Giles was forty-six years old when he took Effexor. The excluded post-2002 warnings, however, focused on children and adults younger than twenty-five years old. The "black box" in the 2005 warning, for example, was entitled "Suicidality in Children and Adolescents" and warned that antidepressants had increased the risk of suicidal thinking and behavior in children and adolescents with major depressive disorder and other psychiatric disorders. But it made no such statement about adults. The 2007 warning expanded the 2005 black box warning to "young adults," meaning persons younger than twenty-five, but Mr. Giles did not fall within this age group either.

Instead of suggesting an increased risk of suicidality, the Effexor warnings after 2002 actually more directly disclaimed any increased risk of suicidality in adults of Mr. Giles's age. The 2007 black box warning, the most recent one at issue, made explicit that for a person in Mr. Giles's age group, no increased risk of suicidality had been shown. It unambiguously stated: "Short-term studies did not show an increase in the risk of suicidality with antidepressants compared to placebo in adults beyond age 24." Warnings of an increased risk of suicidality that pertained only to much younger persons did not tend to show Wyeth's knowledge of an increased risk for persons of Mr. Giles's age.

Of course, the above might lead one to wonder how the evidence of Wyeth's post-2002 warnings could have been admissible under Rule 407, which is the only way that the district court could ultimately have excluded that evidence under Rule 403. Well, Wyeth did not simply voluntarily change its warnings after 2002; instead, the changes were mandated by the FDA. And while the Seventh Circuit has not yet addressed this issue, it makes sense that the Rule would not apply under these circumstances because the main policy goal of Rule 407 -- encouraging defendants to take subsequent remedial measures without fear that evidence of those changes will be used against it at trial -- does not (really) apply when the defendant legally has to take the remedial measure at issue. Indeed, this is the argument that the plaintiff made in her brief in Giles, but it is one that the Seventh Circuit did not have to address because the district court's opinion was not based upon Rule 407.

-CM

February 16, 2009 | Permalink | Comments (0) | TrackBack (0)

Sunday, February 15, 2009

KKK In A Box?: Connecticut To Replace Controversial Intoxilyzer 5000 With Equally Controversial Alcotest 7110 MKIII-C

I've written three previous posts (here, here, and here), about the New Jersey controversy over its Breathalyzer alternative, the Alcotest 7110 MK III-C, a breath alcohol testing technology which uses both infrared and electromechanical analysis as a dual system of chemical breath testing.

In brief, that controversy went as follows:

-the Supreme Court of New Jersey had questions about the reliability of that test;

-appointed retired appellate judge Michael Patrick King as special master to investigate the technology and report his findings on it;

-Judge King initially reported that the technology was unreliable in a 268 page report;

-Judge King later reversed himself in a 108 page report, which indicated that despite "minor defects" with the technology, it is more reliable than the Breathalyzer; and

-the Supreme Court of New Jersey found that the Alcotest was sufficiently reliable to be used in drunk driving prosecutions, but only if officers follow certain procedures such as observing suspects for twenty minutes before administering the test.

At the time of those posts, I mused whether the court was acting based upon actually thinking that the test is reliable or whether it was a "judiciary under the influence" because 10,000 drunken driving prosecutions involving the test were put on hold while the Court decided whether the test was reliable and admissible.

But, my concerns aside, New Jersey is now using the Alcotest 7110 MK III-C, and Connecticut has just decided to follow suit as it will spend nearly $1 million to replace its current Intoxilyzer 5000 with the Alcotest. According to Lt. J. Paul Vance, the State Police spokesman, "The new machines are better technology. The current machines are seven years old and the cost to maintain them far outweighs buying new ones."

And while I have no doubt that this was part of the motivation for the switch, I am sure that a motion by attorney James "Jay" Ruane played a part as well. Ruane recently filed a motion in Superior Court on behalf of a Norwalk client arrested for drunken driving, claiming the Intoxilyzer 5000 discriminate against African-Americans. Or, as Ruane puts it with regard to the Intoxilyzer 5000s, "They are KKK in a box." The basis for this claim is that that "Dr. Michael Hlastala, a lung physiologist at the University of Washington, examined research of other lung physiologists and with his own research determined the Intoxilyzer 5000 does not adequately test black men." (Specifically, according to Hlastala, the lung capacity of an African-American male is approximately 3% smaller than that of a Caucasian. "Because of the smaller capacity, an arrestee must expel a greater fraction of his lung capacity, [and] the Intoxilyzer 5000 results are inflated by a factor of 3 percent," Hlastala concluded).

Of course the question remains whether the Alcotest 7110 MK III-C adequately tests anyone.

-CM

February 15, 2009 | Permalink | Comments (0) | TrackBack (0)