EvidenceProf Blog

Knockin' On Heaven's Door?: Superior Court Of Pennsylvania Questionably Finds Statements Qualify As Dying Declarations

Like its federal counterpart, Pennsylvania Rule of Evidence 804(b)(2) provides an exception to the 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 impending death.

As the recent opinion of the Superior Court of Pennsylvania in Commonwealth v. Priest, 2011 WL 1499828 (Pa.Super. 2011), makes clear, even statements made six hours (or three days) before the declarant's death can qualify as dying declarations. But did the court correctly conclude that the declarant's statements in Priest qualified as dying declarations? I don't know.

In Priest, Markez Priest was convicted by a jury on the charges of first-degree murder and firearms not to be carried without a license. The victim of that murder was Darius Odom, who was shot in his right arm and the back of his neck. After being shot, "Odom was flown to UPMC Presbyterian....Four employees of UPMC involved with the treatment of Mr. Odom (Jaclyn Kuzminsky, a certified respiratory therapist, Dr. Brian Bane, an anesthesiologist, Nathan Sullivan, a registered nurse, and Dr. Raquel Forsythe, a trauma surgeon) testified that Mr. Odom said "Markez shot me" immediately prior to being intubated. Specifically,

Ms. Kuzminsky testified that, when she was providing Mr. Odom the bagging mask, he said, "Please don't let me die," and "Markez shot me."...Dr. Bane testified that, just prior to sedating Mr. Odom, he kept repeating the name "Markez" and said, "Markez shot me."...Nurse Sullivan testified that, when he called out for the sedation medication, Mr. Odom said, "Don't let me die," and "Markez shot me."...Dr. Forsythe testified that, after she told Mr. Odom she was going to insert a breathing tube, he said, "Save me," and "Markez. He shot me." 

The trial court admitted these statements as dying declarations under Pennsylvania Rule of Evidence 804(b)(2), and, on Priest's ensuing appeal, the Superior Court of Pennsylvania found no error with this decision, noting that the prosecution presented a videotape of Odom's treatment that showed him

on a table surrounded and treated by multiple medical personnel. [Mr.] Odom repeatedly tells medical personnel that he does not want to die, he complains of pressure in his chest and difficulty breathing, and he expresses a desire to see his daughter. Following these statements, and shortly before being intubated, [Mr.] Odom identifies "Markez" as the individual who shot him.

Moreover, the court noted that 

the lapse of six hours between [Mr.] Odom's statements and his actual death is not determinative of the issue as to whether statements were admissible under the dying declarations exception to the hearsay rule. In the case of Commonwealth v. Griffin, [supra], the victim was shot in the arm, which severed a major artery. Police came upon the victim lying on the ground, bleeding heavily, and drifting in and out of consciousness....The victim asked the officers to get him to a hospital, asked the officers to "just let me die," and identified [Appellant], Aaron Griffin, as his assailant....The victim died as a result of his injuries, but not for three days following his identification....The Superior Court held as follows:

[A]ppellant would have us rule that the victim's statement could not serve as a dying declaration because the victim did not actually die until three days after the statement was made. However, Appellant cites us no case with such a holding, and in fact ignores several decisions to the contrary.

Now, I agree with the Superior Court of Pennsylvania that a statement can be made hours or days before the declarant's death and still qualify as a dying declaration as long as the declarant believed his death to be imminent when he made the statement. But, to me, the juxtaposition of Griffin and Priest is striking. In Griffin, the declarant was bleeding heavily, drifting in and out of consciousness, and told the officers to let him die. It seems clear to me that this declarant believed that his death was imminent and that he had no hope of survival.

Conversely, in Priest, Odom apparently said, "Please don't let me die" and "save me." The court's opinion gives no indication that he was bleeding profusely or that he was losing consciousness. Now, it is tough for me to question the court(s) when I can't see the videotape of Odom's treatment, but from the court's opinion, Odom seems like a man who felt that he could be saved, who felt that his death was not imminent. And, if that was the case, his statements should not have qualified as dying declarations. 

-CM

Georgia On My Mind: Georgia Senate Overwhelming Votes To Approve Evidence Code Based On Federal Rules Of Evidence

As of 2010, forty-two states had passed state rules of evidence similar to the Federal Rules of Evidence. On January 1, 2011, that number became 42 as the Illinois Rules of Evidence went into effect. Earlier this week, on the last day of the 2011 legislative session, the Georgia Senate voted 50-3 to pass a Comprehensive Revised Evidence Code patterned on the Federal Rules of Evidence that would make Georgia state #43. Governor Nathan Deal is now expected to sign the bill into law, which would take effect on January 1, 2013. So, what led to the creation of this new Evidence Code, what will it replace, and what are the remaining states?

You can find most of the answers to these first two questions in Evidence, 27 Ga. St. U. L. Rev. 1 (2010), by Daniel Hendrix, Sofia Jeong, and Warren Thomas. As the authors note, 

The last major revision of the Georgia Evidence Code, Title 24, was enacted in 1863. Since that time, judicial systems and processes have evolved faster than the Georgia Rules of Evidence (GRE). Electronic documents, communications, telephone records, and photography have developed since the creation of the GRE, but the rules do not always explicitly accommodate these types of evidence.

(As an example, you can take a look at my recent post about the Supreme Court of Georgia's treatment of a computer printout under the Best Evidence Rule)

The authors then note that "[t]he first concerted effort to move away from the current GRE to the FRE occurred when the Evidence Study Committee was formed in August 1986." But, as so often happens in these types of endeavors, the project moved in fits and starts, dying a thousand deaths in different committees and later facing "strong opposition from solicitors and prosecutors." Then,

During the summer of 2009, Representative {Wendell] Willard continued the push toward adopting the FRE. Acknowledging the concerns that prosecutors raised during the previous legislative session, Willard included Brian Fortner, the head of the Georgia Association of Solicitors-General, on the Study Committee to revise the bill. In an effort to address these concerns related to the bill, the Study Committee discussed at length the differences between the GRE and  the FRE. The Study Committee analyzed the rules section by section, carefully vetting the bill in several stages--at the Bar level, at the legislative study level, and during the sessions--to ensure that the rules were written in a way that would prevent unexpected surprises or "time bombs." The revisions made during these meetings resulted in the version of the bill introduced in the 2010 session.

Soon thereafter, the Georgia House passed the bill by an overwhelming margin, the Senate has now followed suit, and the Governor is set to give the bill his imprimatur.

So, how much of Georgia's new Evidence Code will track the Federal Rules of Evidence, and how much will consist of Georgia deviations? According to the authors of Evidence, "'The vast majority of the bill mirrors the FRE; in fact, the bill has been characterized as '98% the Federal Rules and 2% of some other, whether it is Georgia law or some hybrid of the two.'" It seems that the main differences between Georgia's new Evidence Code and the Federal Rules of Evidence are (1) that there rape shield rules are somewhat different; and (2) that Georgia allows for more extensive cross-examination -- "thorough and sifting cross-examination" -- than Federal Rule of Evidence 611(b).

So, what are the remaining 7 states? (1) California, (2) Connecticut, (3) Kansas, (4) Massachusetts, (5), Missouri, (6) New York, and (7) Virginia. Which is likely the next domino to fall? I don't know? I was contacted by some folks in Missouri based upon my work on the Illinois Rules of Evidence, and they noted that the Missouri Constitution's authorization of the Supreme Court of Missouri to promulgate rules specifically excludes rules of evidence and that a legislative enactment is unlikely. I served as a visiting professor last semester at my alma mater, William and Mary, last fall, and after reading up on all of the state's struggles with trying to enact rules of evidence, I don't see codification coming down the pipe any time soon. From my time working in New York, I saw a similar reluctance to codify.

The Supreme Judicial Court of Massachusetts famously refused to adopt the Proposed Massachusetts Rule of Evidence in 1982 and has shown no signs of wavering in its position. California and Kansas both have codified rules of evidence based upon the Uniform Rules of Evidence, and I don't see them jumping tracks to the Federal Rules of Evidence any time soon. Finally, Connecticut finally codified its rules of evidence in 2000, but it specifically refused to model its Evidence Code after the Federal Rules of Evidence. Therefore, i'm not sure that any of the remaining states is a good candidate to become state #44.

-CM

Article Of Interest: Jan Stiglitz's View From the Trenches: The Struggle to Free William Richards

A popular game among lawyers (and law professors) while watching legal TV shows is "spot the legal error." And as readers of this blog with their law degrees know, such shows are replete with inaccuracies. Some of these errors are innocuous. As an Evidence professor, I often see evidence wrongfully admitted or excluded, but I don't worry that such errors give laypersons a dangerous misimpression of how trials are conducted. Of course, one of the more obvious errors in legal TV shows is the rapidity with which disputes are resolved. In the classic "client of the week" format, we often see a client in complex litigation retain a firm, complete discovery, and achieve a settlement or verdict in a matter of days when in reality the entire process would likely drag on for years.

But I still don't know that this "fast forward justice" misleads the public in a way that is all that troubling. But what about when the lawyer at one of these fictional firms is given the pro bono project of the wrongfully incarcerated inmate? If you've watched one of these episodes, you know the score. The firm gets the case, and it throws its full resources into finding the flaws in the prosecution's case. Often, the inmate is on death row, and the firm has only a few days or hours to stop the execution. The firm gets a lab to expedite testing of forensic evidence. It gets a judge to hear an emergency motion. The inmate's innocence is proven. The episode ends with the prison gates opening and the inmate being reunited with his family. Tears are shed. Justice has been served.

In reality, though, these types of wrongful conviction cases are much more often of the "justice delayed is justice denied" variety than the "fast forward justice" we see on TV. And I think that the real value of the recent article, View From the Trenches: The Struggle to Free William Richards, 73 Albany L. Rev. 1357 (2010), by Jan Stiglitz, a professor and the director of the California Innocence Project at the California Western School of Law, is that it exposes the realities of the situation.

Professor Stiglitz's article deals with the California Innocence Project's ongoing representation of Williams Richards. As Professor Stiglitz notes, our story starts on August 10, 1993, with Pamela Richards being fatally strangled and beaten with a large paving stone and a cinder block. The San Bernardino County Sheriff's Department soon settled upon a suspect, Pamela's husband, William Richards, who claimed that he called 911 after arriving home from work and discovering his wife's dead body. The prosecution twice charged William with murder, and both trials ended with hung juries. The prosecution did have some evidence of William's guilt, such as blue fibers allegedly found under Pamela's fingernail that were consistent with material from the shirt that William had worn. But there were significant problems with the prosecution's case, not the least of which was the fact that "[t]he crime scene indicated a violent bloody struggle had taken place and [William] had almost no blood on his shirt and no blood spatter on his pants."  

At a third trial, the prosecution delivered what turned out to be its smoking gun: testimony from a forensic odontologist regarding a crescent shaped injury which had been found on Pamela's right hand. According to the prosecution's expert, (1) the injury was consistent with a human bite mark; (2) whoever had left that bite mark had an abnormality which would only occur in "one or two or less" out of one hundred people; and (3) William could be one of those people. After three days of deliberation, the jury convicted William. The prosecution finally got its man. But was the smoking gun a misfire?

That was William's claim when he contacted the California Innocence Project in 2001. And, after some research, the Project determined (1) that there was a hair under Pamela's fingernail that was never tested; (2) that the paving stone and cinder block could contain testable genetic material left by the person who wielded them; and (3) that at least two alternate suspects existed, including Pamela's ex-boyfriend, who called Pamela on the night of the murder.

The Project quickly followed these leads. Under newly enacted California Penal Code Section 1405(f), they could get genetic testing of the murder weapons and the hair if the identity of the perpetrator was at issue, the evidence sought to be tested was material to issue of identity, and the test results would have raised a probability of a more favorable result if the testing had been available at the time of trial. The Project contacted the Deputy District Attorney (DDA) to see if the District Attorney's Office could expedite the testing. The response? The DDA knew that William was guilty and would vigorously oppose testing.

It was now December 2002, and the Project filed its motion for testing. In February 2003, the District Attorney's Office filed its opposition. In July 2003, a judge granted the Project's motion. Who should do the testing? The Project's DNA consultant said it should be the California Department of Justice (DOJ) to preclude claims of biased or untrustworthy results. The evidence was sent to the California DOJ in mid-2003, and...it sat there. 2003 turned into 2004. 2004 gave way to 2005. The Project sent letters to the California DOJ. Another year passed. The Project made calls to the California DOJ. Another year behind bars for William Richards. Finally, in February 2007, the Project got its results: DNA recovered from the paving stone was not a match for either WIlliam or Pamela, and mitochondrial DNA testing on the hair revealed that it belonged to neither spouse.

Unlike the evidence sent to the California DOJ, the Project did not remain idle over these four years. Instead, it set about to diffuse the prosecution's smoking gun. The odontologist at the third trial based his testimony on a photograph of Pamela's right hand. It turned out that the camera taking that photo was not on the same plane as her hand, creating an "angular distortion." The photo was corrected through Adobe Photoshop, and one expert was able to exclude Richard's teeth as the source of the injury to Pamela's hand. Another expert opined that the injury might not even be a bite mark. The prosecution's odontologist recanted his testimony.

And what about the blue fibers found under Pamela's fingernails? A student compared autopsy photos with the later photos showing the blue fibers, and the "examination suggested that the fibers were not present in the nail at the time of the autopsy and therefore could not have been there as a result of any struggle between Pamela and her killer." Moreover, the student uncovered the fact that the criminalist finding the fibers "had been accused of providing false and misleading evidence in another high profile murder case in San Bernardino County."

It was now November 2007. The Project filed a petition for writ of habeas corpus. The DA filed a long, rambling response. The Project successfully moved to strike it. Delay. The DA filed a second, equally flawed response. The Project again successfully moved to strike. Delay. It was possible that the prosecution failed to turn over photos and a report. The Deputy District Attorney recused himself. Delay. Finally, William got his day in court, and the Project convinced the judge to grant the petition on August 10, 2009.

But where were the opening prison gates? Where was the crying family? Not yet. The judge stayed the granting of the writ so that the prosecution could appeal. Professor Stiglitz's article closes by noting that "[a]s this is being written, the prosecution has appealed and it looks like another year will pass before we have the possibility of a final resolution of the case."

In fact, more than a year passed. Then, on November 19, 2010, the Court of Appeal, Fourth District, Division 2, Calfornia reversed in In re Richards, 2010 WL 4681260 (Cal.App. 4 Dist. 2010) (Download Richards opinion). According to the court,

While Defendant's petition suggested that certain evidence against him was weak, the fact remains those weaknesses were brought out during the trial. Even with the weaknesses, there was sufficient circumstantial evidence to establish Defendant's guilt. The new evidence offered by Defendant in support of his petition failed to undermine the prosecution's entire case and point unerringly to his innocence.

Was the court right? I don't think so, but I will leave it up to readers to decide. So, where does William stand? I contacted Professor Stiglitz, and he responded that the Supreme Court of California is set to hear William's appeal in late summer or early fall. Will William finally be set free? I don't know, but if he is, it will certainly not be the "fast forward justice" seen on TV. Ten years have passed since William contacted the California Innocence Project. Eight and a half years have passed since the evidence which I think proves his innocence was sent off for testing. Three and a half years have passed since the test results came back. William remains in prison. Things are not always as seen on TV.

-CM 

Be Kind, Rewind: Southern District Of Ohio Uses Best Evidence Rule To Preclude Admission Of Private Eye's Affidavit

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

I always tell my Evidence students that the Best Evidence Rule rarely prevents proponents from proving the contents of writings, recordings, and photographs. Instead, the provisions of Article X of the Federal Rules of Evidence merely point to how those contents will be proven. If the proponent has the original, it can introduce the original. If the proponent has a "duplicate," it can introduce the duplicate. And, if the proponent has neither, it can still prove the contents of the writing, recording, or photograph unless it lost or destroyed the original in bad faith or provides no reason for failing to produce it. The recent opinion of the United States District Court for the Southern District of Ohio in Crace v. Efaw, 2011 WL 1459357 (S.D. Ohio 2011), is thus the exception to the general rule.

In Efaw, David Crace, the plaintiff,

called police during a domestic dispute with his wife in their home....Patrolman Wallace Workman and Deputy Wes Collins responded to the call....Patrolman Workman arrested and handcuffed plaintiff, charged him with domestic violence, and drove him to the Lawrence County Jail....

Once at the jail, plaintiff was taken to a bench in the booking area....Defendants Deputy Richard Slack, Deputy Boyd Blake and Deputy Amanda Efaw were working at the jail that evening....While Deputy Efaw entered the booking information, plaintiff was asked about completing fingerprint paperwork....Shortly thereafter, plaintiff was taken to the ground and a physical altercation between plaintiff and Deputy Slack, Deputy Blake, Patrolman Workman and other officers followed....Deputy Efaw observed, but did not participate in, the physical altercation....

Plaintiff was then lifted to a standing position and placed in a restraint chair....After posting bond and leaving the jail, plaintiff sought immediate medical treatment at St. Mary's Hospital....Plaintiff allege[ed] that he suffered injuries to various parts of his body. 

Crace thereafter brought an action under 42 U.S.C. Section 1983 against the defendants in their individual capacities. Apparently, there was a videotape recording of the events during Crace's booking, and Crace hired a private investigator, Stand Molnar, to review the jail's videotape recording of the events during the booking process, including the physical altercation involving Crace. The defendants moved for summary judgment dismissing the complaint, Crace sought to introduce an affidavit by Molnar stating what he saw on the recording, but the Southern District of Ohio found that it was inadmissible under Federal Rule of Evidence 1002 because

Mr. Molnar was not present during these events and his affidavit simply offers his interpretation of the events captured on videotape, i.e ., Mr. Molnar's knowledge is derived exclusively from reviewing the videotape....The Federal Rules of Evidence, however, require that "[t]o prove the content" of a recording, the original recording is required unless an exception applies. Fed.R.Evid. 1002. Plaintiff does not submit the videotape referred to in the Molnar Affidavit, nor does he explain why he could not do so. None of the exceptions to Fed.R.Evid. 1002 appear to apply in this case. See Fed.R.EVid. 1004, 1005, 1006, 1007 (providing exceptions when the originals are lost, destroyed, unobtainable, in the possession of party opponent, relate to collateral matters, of public record, voluminous, or are the admission of a party). Accordingly, the Court will not consider the Molnar Affidavit when determining whether there exists a genuine issue of material fact.

-CM

Article Of Interest: Eyewitness Errors and Wrongful Convictions: Let's Give Science a Chance, By David A. Sonenshein and Robin Nilson

Readers of this blog know of my interest in the inaccuracy of eyewitness identifications (see, e.g., here, here, here, here, and here) and efforts to increase their reliability (see, e.g. here). This interest came from the confluence of two events: First, I read about the results of The Illinois Pilot Program on Sequential Double-Blind Identification Procedures, which seemed to suggest that traditional lineup methods are uncannily accurate and that more modern safeguards actually lead to less reliable identifications. Thereafter, I saw a 60 Minutes piece about Jennifer Thompson's (mis)identification of Ronald Cotton as her rapist and about the problems inherent in traditional lineup methods. This piece changed the way that I thought about eyewitness identifications, and I now play the piece in all of my Evidence and Criminal Procedure classes. The Cotton-Thompson case also provides the launching point for an excellent recent article about eyewitness (mis)identifications, Eyewitness Errors and Wrongful Convictions: Let's Give Science a Chance, 89 Or. L. Rev. 263 (2010), by David A. Sonenshein and Robin Nilson, professors at the Temple University Beasley School of Law.

Supreme Court Case Law

After discussing the Cotton case, in Part I of the article, the authors lay out the Supreme Court's case law on eyewitness identification. Specifically, they note that in its 1967 opinion in

Stovall v. Denno, the Court held that due process requires the suppression at trial of identifications that courts deem necessary but "unduly suggestive" under a "totality of the circumstances" test. An unnecessarily suggestive lineup or showup identification would be per se excluded.

But fast forward five years and substitute the Burger Court for the Warren Court, and you get Neil v. Biggers, in which 

the Burger Court essentially overruled Stovall, holding that once a trial court found a lineup unnecessarily and impermissibly suggestive, due process required that a court apply a "totality of circumstances test" to demonstrate the reliability of the identification before admitting the identification at trial. The Court set out five factors that make up the totality of the circumstances: the witness's opportunity to observe, the degree of attention paid by the witness, the accuracy of the witness's initial description, the certainty of the witness's lineup identification, and the length of time between the crime and the identification confrontation. The Court, however, deleted the term "unnecessarily suggestive" from the due process test, thereby placing its imprimatur on the admission of suggestive identifications even where the government chose, but was not forced by circumstance, to conduct a suggestive identification procedure. 

Moreover, after another five years passed, the Court in Manson v. Brathwaite

reaffirmed that the Biggers five-prong test was required only when authorities had conducted an impermissibly suggestive lineup. The five prongs--henceforth known as the "Brathwaite factors"--are intended to ensure "reliability," which, in the Brathwaite Court's view, "is the linchpin in determining the admissibility of identification testimony." Thus, after Biggers and Brathwaite, the Court would have the lower state and federal courts balance the degree of lineup suggestiveness against the five factors that the Court identified as those which could ensure reliability despite unnecessary and improper police suggestions.

The result: few identifications are deemed unnecessarily or impermissibly suggestive. But do the Brathwaite factors and traditional lineup methods still hold water on crash against the rocks of modern forensic science and psychology? The authors argue the latter.

Blinded Me With Science

In Part II, the authors begin by critiquing traditional lineup methods. These include:

(1) the fact that most jurisdictions use "simultaneous lineups" (where eyewitnesses view all suspects and fillers at once) rather than "sequential lineups" (where eyewitnesses view suspects and fillers seriatim, i.e., one at a time). The problem with the former technique is that it often leads to "relative judgment," i.e., the eyewitness comparing everyone in the lineup and picking the person who most closely resembles the perpetrator, which leads to false positives;

(2) the fact that most jurisdictions use "non-double blind" lineups (where the administrator knows the suspect's identity) rather than "double-blind" lineups (where the administrator does not know the suspect's identity). The problem with the former is that implicit and/or explicit administrator bias can lead to false positive identifications; and 

(3) the fact that most jurisdictions use non-blind administrators often leads to expressions of approval after "positive" identifications. The problem with this is that it leads to "confidence malleability," wherein an eyewitness making an initially tentative identification becomes more confident in that identification after receiving (implicit and/or explicit) positive feedback from the administrator.

The authors then note that modern forensic science dispels four of the five Brathwaite factors:

(1) Opportunity to Observe: The Brathwaite analysis fails to account for (a) "Visual Hindsight Illusion," pursuant to which eyewitnesses think that they recognize features of people that they think they know at distances (e.g., 150 feet) suggesting such recognition is impossible; and (b) the tendency of witnesses to overestimate how long they saw the perpetrator and underestimate the extent to which their view was obstructed;

(2) Attention: "Contrary to the simplistic Brathwaite analysis, modern forensic science has confirmed that the relationship between the degree of attention a witness pays and the reliability of his subsequent identification is subtle and often unpredictable. For instance, a witness who did not pay close attention to a perpetrator's particular facial features, but instead simply looked at the perpetrator's face, is more likely to make an accurate lineup identification. Although a witness who concentrated on the perpetrator's facial features is more likely to provide police with an accurate description of the perpetrator, he is also more likely to make an inaccurate lineup identification;"

(3) Description Accuracy: "There is no significant correlation between the accuracy of a witness's initial description of the perpetrator and the accuracy of the witness's subsequent lineup identification. Scientists believe that the two types of memory involved--recognition and recall recognition--account for this lack of correlation. Recognition relates to the ability of a witness to describe someone whom he has seen before in a rapid and uninvolved process; recall recognition relates only to a witness's ability to identify what he has seen after an intentional retrieval stage requiring some effort;"

(4) Certainty: "Historically, some experts believed that there is a significant (but not overwhelming) correlation between the certainty and accuracy of a witness's identification. Unfortunately, as has been discussed, because the certainty of lineup identifications is so often the result of police encouragement, the validity of that correlation is questionable. In fact, the leading researchers have directly challenged the validity of eyewitness certainty as an indicator of accuracy."

Thus, "[t]he 'delay' factor is the only Brathwaite factor that has earned the approval of the social science community as relevant to reliability." to reliability."

No Country for Old Laws 

In part III of the article, the authors focus upon reform efforts at both the federal and state levels, including changes in New Jersey, Illinois, Wisconsin, Virginia, Maryland, and North Carolina, which "has adopted the most wide-ranging lineup reforms." (which I detailed in this post). The authors then discuss Minnesota's lineup reform pilot program and Illinois' aforementioned counterpart, explaining why the latter was flawed (for more information, check out this link, which is included in the article).

In the Trenches 

In part IV, the authors track the treatment of the the Brathwaite factors in state courts across the country. They initially note that "[i]n applying Brathwaite, the highest courts of some forty states have declined to broaden its protections, their authority to do so under their own interpretations of their own due process clauses notwithstanding." On the other hand, some state supreme courts have found that the Brathwaite factors are inadequate. The Georgia and Connecticut Supreme Courts have decided to give strengthened cautionary instructions to jurors in connections with the introduction of eyewitness identification evidence, but the authors doubt their efficacy based upon a number of cognitive biases, such as reactance theory, belief perseverance, and ironic mental processes (e.g., if I tell you not to think of a white bear, what do you think about?). Moreover, some states have begun to allow defendants to present expert testimony on the inaccuracy of eyewitness identifications (with the Supreme Court of Utah recently reversing course and allowing such as testimony as evidence, as noted on this blog).

Conclusion

In the end, however, the authors recommend the more radical approach adopted by the Supreme Judicial Court of Massachusetts and the New York Court of Appeals. According to the authors,

We recommend that state courts follow the reasoning of the Supreme Judicial Court of Massachusetts and the New York Court of Appeals in returning to the Stovall test, which bars the admission of any identification that is unnecessarily suggestive (e.g., a showup in an emergency situation). In addition, this test allows the admission of other suggestive identifications only if the court is convinced by clear and convincing evidence that they and any resulting in-court identifications are reliable based on the scientific factors that provide real indicia of reliability. Rather than focus exclusively on the inadequate Brathwaite factors, courts should insist (except in extraordinary circumstances) on (1) double-blind lineup or photo array procedures, (2) the use of at least five fillers who resemble the suspect to a reasonable degree (e.g., height, weight, race or skin tone, and hair), (3) sequential lineups or photo arrays, (4) informing the witness that the suspect is not necessarily in any of the lineups, and (5) videotaping the lineup and the witness's statements during the lineup procedure. In addition, state courts can and should require, under their state constitutions, the presence of defense counsel or some other person associated with the suspect at any lineup or photo array, irrespective of whether the identification procedure is conducted before or after the lodging of an indictment or other formal charge. Finally, in order to fully inform jurors of the counterintuitive information surrounding the identification process, and given its general acceptance in the field of psychology, all courts should admit properly qualified expert testimony on the manner in which the mind processes identification information.

From everything I have read about the inaccuracy of eyewitness identification and the high percentage of convictions reversed based upon mistaken identifications, I strongly agree with this approach and hope that more courts adopt this reasoning. Here's hoping that those in power read this excellent article and begin enacting reforms to increase the validity of eyewitness identifications and decrease false positives. I asked the authors what led them to write the article, and Professor Sonenshein responded,

The genesis of the article is my following of the stories of innocent men convicted on wrongful identification, which along with erroneous confessions make up the bulk of wrongful convictions. As an Evidence teacher and scholar, I have been troubled by the resistance of many courts to admit expert testimony on the vagaries of eyewitness identification under either Rule 702 or Frye on the specious theory that jurors do not need assistance in assessing the probative value of eyewitness ids.

-CM

It's So Juvenile: Ohio Child Custody Case Reveals Differences Between Federal And Ohio Rules On Juvenile Adjudication Impeachment

Federal Rule of Evidence 609(d) provides that

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

As the recent opinion of the Court of Appeals Of Ohio, Twelfth District, in In re L.E.N., 2011 WL 1346825 (Ohio App. 12 Dist. 2011), makes clear, Ohio Rule of Evidence 609(d) is actually more restrictive than its federal counterpart although this distinction was ultimately irrelevant to the court's opinion.

In re L.E.N. was an appeal by a father from a decision granting legal custody of his daughter, L.E.N., to the child's biological mother. Part of the basis for the father's appeal was that the trial court improperly refused to admit evidence of L.E.N.'s stepfather's juvenile record as impeachment evidence. In finding that the trial court acted properly, the Court of Appeals noted that Ohio Rule of Evidence 609(d) provides that "Evidence of juvenile adjudications is not admissible except as provided by statute enacted by the General Assembly."

In other words, under Ohio Rule of Evidence 609(d), juvenile adjudications are never admissible as impeachment evidence (without statutory authorization) while under Federal Rule of Evidence 609(d), juvenile adjudications are sometime admissible in criminal trials against witnesses other than accuseds. So, why does Federal Rule of Evidence 609(d) sometimes allow for the admission of juvenile adjudications as impeachment evidence? Well, according to the accompanying Advisory Committee's Note,

The prevailing view has been that a juvenile adjudication is not usable for impeachment. Thomas v. United States, 74 App.D.C. 167, 121 F.2d 905 (1941); Cotton v. United States, 355 F.2d 480 (10th Cir. 1966). This conclusion was based upon a variety of circumstances. By virtue of its informality, frequently diminished quantum of required proof, and other departures from accepted standards for criminal trials under the theory of parens patriae, the juvenile adjudication was considered to lack the precision and general probative value of the criminal conviction. While In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), no doubt eliminates these characteristics insofar as objectionable, other obstacles remain. Practical problems of administration are raised by the common provisions in juvenile legislation that records be kept confidential and that they be destroyed after a short time. While Gault was skeptical as to the realities of confidentiality of juvenile records, it also saw no constitutional obstacles to improvement. 387 U.S. at 25, 87 S.Ct. 1428. See also Note, Rights and Rehabilitation in the Juvenile Courts, 67 Colum.L.Rev. 281, 289 (1967). In addition, policy considerations much akin to those which dictate exclusion of adult convictions after rehabilitation has been established strongly suggest a rule of excluding juvenile adjudications. Admittedly, however, the rehabilitative process may in a given case be a demonstrated failure, or the strategic importance of a given witness may be so great as to require the overriding of general policy in the interests of particular justice. See Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). Wigmore was outspoken in his condemnation of the disallowance of juvenile adjudications to impeach, especially when the witness is the complainant in a case of molesting a minor. 1 Wigmore § 196; 3 Id. §§ 924a, 980. The rule recognizes discretion in the judge to effect an accommodation among these various factors by departing from the general principle of exclusion. In deference to the general pattern and policy of juvenile statutes, however, no discretion is accorded when the witness is the accused in a criminal case.

-CM

Can I See Some ID?: EDNY Opinion Reveals Differences Between Federal & NY Prior ID Rules

Federal Rule of Evidence 801(d)(1)(C) provides that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...one of identification of a person made after perceiving the person....

As the recent opinion of the United States District Court for the Eastern District of New York in Linton v. Bradt, 2011 WL 1252752 (E.D.N.Y. 2011), reveals, New York also allows for 

In Bradt, WIlliam Bradt was convicted of second-degree murder in New York state court. ABout five minutes after Bradt allegedly shot the victim, a detective interrogated two eyewitnesses, who indicated that Bradt shot the victim. These statements were admitted at Bradt's trial as excited utterances. After Bradt unsuccessfully appealed in the New York state court system, he filed a habeas petition with the United States District Court for the Eastern District of New York.

The court found that there was no error, and certainly no constitutional error, in admitting these statements as excited utterances. Moreover, it noted that these statements also could have been admitted under Federal Rule of Evidence 801(d)(1)(C) as prior statements of identification. The court then noted that while New York courts have apply a more defendant-protective evidentiary rule,

the New York Court of Appeals has held that prior identifications can be introduced, notwithstanding objections based on bolstering or hearsay, when the identification is the key issue in the case and the prior identification is only offered to show "the opportunity to observe at the time of the crime, and the reliability of her memory at the time of the corporeal identification..." In that situation, a limiting instruction is appropriate.

In other words, under federal law, prior identifications are always admissible and admissible to prove the truth of the matter asserted (because they are non-hearsay), while, under New York law, prior identifications are only sometimes admissible and only for some purposes.

-CM