EvidenceProf Blog

The Power Of The Claw: What Are Clawback Agreements And How Popular Are They?

Enacted in 2008, Federal Rule of Evidence 502(b) provides that

When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:

(1) the disclosure is inadvertent;

(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and

(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

Meanwhile, Federal Rule of Evidence 502(d) indicates that

A Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any other Federal or State proceeding.

Moreover, the Advisory Committee's Note to Rule 502(d) states that

Confidentiality orders are becoming increasingly important in limiting the costs of privilege review and retention, especially in cases involving electronic discovery. But the utility of a confidentiality order in reducing discovery costs is substantially diminished if it provides no protection outside the particular litigation in which the order is entered. Parties are unlikely to be able to reduce the costs of pre-production review for privilege and work product if the consequence of disclosure is that the communications or information could be used by non-parties to the litigation.

There is some dispute on whether a confidentiality order entered in one case is enforceable in other proceedings. See generally Hopson v. City of Baltimore, 232 F.R.D. 228 (D. Md. 2005), for a discussion of this case law. The rule provides that when a confidentiality order governing the consequences of disclosure in that case is entered in a federal proceeding, its terms are enforceable against non-parties in any federal or state proceeding. For example, the court order may provide for return of documents without waiver irrespective of the care taken by the disclosing party; the rule contemplates enforcement of “claw-back” and “quick peek” arrangements as a way to avoid the excessive costs of pre-production review for privilege and work product. See Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 290 (S.D.N.Y. 2003) (noting that parties may enter into "so-called 'claw-back' agreements that allow the parties to forego privilege review altogether in favor of an agreement to return inadvertently produced privilege documents"). The rule provides a party with a predictable protection from a court order--predictability that is needed to allow the party to plan in advance to limit the prohibitive costs of privilege and work product review and retention.

Under the rule, a confidentiality order is enforceable whether or not it memorializes an agreement among the parties to the litigation. Party agreement should not be a condition of enforceability of a federal court's order. (emphasis added).

I have two goals in this post: (1) to discuss the effect of clawback requests and clawback agreements; and (2) to call attention to a blog post with some anecdotal evidence concerning the (in)frequency of clawbacks.

So, let's start by defining the relevant terms. The Advisory Committee's Note to Federal Rule of Civil Procedure 26(f) notes that parties in discovery

may agree that the responding party will provide certain requested materials for initial examination without waiving any privilege or protection -- sometimes known as a "quick peek." The requesting party then designates the documents it wishes to have actually produced. This designation is the Rule 34 request. The responding party then responds in the usual course, screening only those documents actually requested for formal production and asserting privilege claims as provided in Rule 26(b)(5)(A).

Meanwhile,

On other occasions, parties enter agreements -- sometimes called "clawback agreements" -- that production without intent to waive privilege or protection should not be a waiver so long as the responding party identifies the documents mistakenly produced, and that the documents should be returned under those circumstances. Other voluntary arrangements may be appropriate depending on the circumstances of each litigation. In most circumstances, a party who receives information under such an arrangement cannot assert that production of the information waived a claim of privilege or of protection as trial-preparation material.

So, what is the interplay between a clawback request or agreement and Federal Rule of Evidence 502? Well, first, let's say that the parties don't reach a clawback agreement before disclosing documents during discovery. And then, let's say that soon after a party discloses documents, it requests a clawback of an inadvertently disclosed document. The court will use this prompt request for a clawback as evidence that the disclosing party "promptly took reasonable steps to rectify the error" under Federal Rule of Evidence 502(b)(3). See, e.g., Martin v. State Farm Auto Ins. Co., 2011 WL 1297819 (S.D.W.Va. 2011). The court then must decide whether this step, among other things, was sufficient to prevent privilege from being vitiated.

Now, let's say that the parties reach a clawback agreement before disclosing documents. If they reach such an agreement, the court will issue a court-ordered clawback agreement under Federal Rule of Evidence 502(d), ensuring that inadvertently disclosed documents will not be admissible in the subject case or later cases. See, e.g., Capitol Records, Inc. v. MP3tunes, LLC, 261 F.R.D. 44 (S.D.N.Y. 2009). Indeed, a court can issue a court-ordered clawback agreement even if one party requests such an agreement and the other party opposes it. See, e.g., Rajala v. McGuire Woods, LLP, 2010 WL 2949582 (D. Kan. 2010). Finally, some courts have even encouraged parties to enter into clawback agreements without a motion by either party. See, e.g., Doe v. Nebraska, 2011 WL 1480483 (D. Neb. 2011).

Given this, you might think that clawback agreements are pretty popular. Not so according to Mark Herrmann, the Vice President and Chief Counsel - Litigation at Aon Corp. insurance brokerage. He sent me a link to this blog post of his, in which he notes that

I recently heard a panel of judges speak about e-discovery issues. Their opinions on several subjects varied, but on one subject they agreed unanimously: Clawback provisions under Federal Rule of Evidence 502 are valuable tools in most significant litigation, but they remain rarely used.

This piqued my interest, so I asked several in-house litigators (not necessarily at the place where I work) whether they routinely seek FRE 502 clawback provisions in their cases. The in-house lawyers do not. And I asked whether outside counsel routinely recommend seeking those provisions. Not surprisingly (because the in-house folks aren’t using them), outside counsel do not.

He then gives several reasons why clawback agreements might not be very popular, and I direct readers to check out his post for his full analysis. Undoubtedly, there are a variety of reasons why attorneys don't enter into clawback agreements, and I'm certainly no expert about all of these motivations. If I had to guess, though, I might agree with one of the commenters on Herrmann's post, who contended that every attorney thinks that he won't make a disclosure mistake and that the other attorney might.

-CM

Dog Day Afternoon: Casey Anthony Trial Raises Questions About Cadaver Dogs

With the Casey Anthony trial, most of America is becoming acquainted for the first time with the "cadaver dog." Here is an excerpt from a CNN article about the cadaver dog's role in the investigation of the death of Caylee Anthony:

A dog trained to locate human remains alerted his handler to them in two locations: the trunk of Casey Anthony's car and a corner of her parents' back yard, the handler testified in Anthony's capital murder trial Tuesday.

On first pass by the dog, Gerus, around Anthony's white Pontiac Sunfire on July 17, 2008, "he started indicating in the rear of the vehicle," said Orange County, Florida, sheriff's Deputy Jason Forgery, a K-9 handler. "I could tell he was working something."

As the dog came around the front of the car, Forgery said he asked that the trunk be opened. When Gerus came around to the trunk, he put his front paws inside, then lay down -- a signal to Forgery that he had detected the scent of remains.

He said Gerus also alerted in the southeast corner of the Anthony back yard. However, during a cross-examination that grew testy at times, Forgery told defense attorney Jose Baez that after technicians had examined the area and scraped the surface of the land, he returned the following day and the dog did not alert in the back yard.

And here is a video clip of some of Forgery's testimony, including an interesting cross-examination by defense counsel regarding the (in)accuracy of cadaver dogs:

I think that most people have more familiarity with drug-sniffing dogs, dogs who track a suspect from a crime scene, and scent-lineup dogs, which are

exposed to the scent from items found at crime scene, and are then walked by a series of containers with samples swabbed from a suspect and from others not involved in the crime. If the dog finds a can with a matching scent, it signals — stiffening, barking or giving some other alert its handler recognizes.

In this post, I have two goals: (1) comparing the qualification of these latter two types of dogs and cadaver dogs for expert testimony purposes; and (2) considering whether dog "searches" should be allowed without warrants under the Fourth Amendment given yesterday's post.

Go to the Dogs

In addressing this first question, let's consider the opinion of the Court of Appeals of Texas, Houston, in Trejos v. State, 243 S.W.3d 30 (Tex.App.-Houston [1 Dist.] 2007). Trejos is at least somewhat similar to the Casey Anthony case. Frank Trejos and his wife lived with Maria Barrientos, his mother-in-law. Four days after Maria was last seen, Trejos reported to the police that she was missing, but neither he nor his wife helped Maria's friends post missing persons fliers, nor did they make any other attempts to find her.

Later,

the Houston Police Department Crime Laboratory processed Maria's house. Testing revealed a "presumptive test for blood" on adult footprints in the kitchen and the hallway and on a towel in the bathroom. The towel was sent to the Department of Public Safety ("DPS") for follow-up testing, but the test showed that there was no "apparent blood." The following day, Maria's car, with the keys still in the ignition, was found abandoned less than two miles from her ex-husband's house. Maria's purse was in the car. A presumptive test showed the presence of possible blood on the floormats in the back floorboard of the car. 

Trejos, however, denied any involvement is Maria's disappearance, and the case went dormant for seven years. After seven years, Trejos was interrogated again, and he made a "confession." Specifically, he

said that he was angry with Maria for nagging him. When she "came up in [his] face" he struck her with his fist. She fell to the kitchen floor. Maria was bleeding and "freaking out," so [Trejos] choked her. After Maria was dead, [Trejos] and his wife took her to the bathroom and placed her in the tub. [Trejos]'s wife cut Maria's wrists to try to make it look like she committed suicide, but the wounds did not bleed. [Trejos] and his wife put Maria's body in the trunk of their car and dumped her body in a ditch.

Police officers then

took two dogs trained to detect the scent of cadavers to the location where [Trejos] said that he and his wife had dumped Maria's body. The two cadaver dogs and their handlers worked the area independently of one another so that they would not influence each other. Both dogs alerted within five or six feet of one another, at the spot that [Trejos] had indicated he had placed the body. Although an excavation was performed, no remains were found.

At his murder trial, Trejos moved to suppress his confession and preclude admission of evidence relating to the cadaver dogs, but he was unsuccessful on both points and in his defense overall. He thereafter appealed, claiming, inter alia, that the cadaver dogs were not sufficiently qualified to allow for expert testimony regarding their alerts. In response, the Court of Appeals of Texas noted that

In determining whether a dog used in a scent lineup was qualified, we have applied five factors....In Risher, we held that a scent-lineup dog is qualified if "it (1) is of a breed characterized by acuteness of scent and power of discrimination, (2) has been trained to discriminate between human beings by their scent, (3) has been found by experience to be reliable, (4) was given a scent known to be that of the alleged participant of the crime, and (5) was given the scent within the period of its efficiency."... The Fourteenth Court of Appeals applied these same five factors in Winston to determine the reliability of a dog that tracked a burglary suspect based on human scent left at the crime scene.

The court then, however, concluded that

Searches by cadaver dogs are different from searches by dogs for scents left by live humans. Deputy Pikett testified that cadaver searching is a less rigorous skill because it only requires the dog to be able to distinguish between human scents and animal scents, and the dog need not further distinguish between individual humans. As we explain below, because the skills necessary for a cadaver dog differs from the skills necessary for scent lineups or the tracking of suspects, we conclude that only some of the five factors in Risher apply to searches by cadaver dogs.

Obviously, the fourth factor is irrelevant because a cadaver dog does not search for the scent of any specific person, and the court also found that the fifth factor is irrelevant "because the immediacy of the search is not indicative of the efficiency of the scent." So, how about the first three factors? With regard to the first factor, the court held that

Deputy Pikett testified that all dogs have a more acute sense of smell than humans and that bloodhounds have an olfactory sense that is 26 times that of a human. Deputy Pikett explained that because a cadaver dog need not distinguish between the scents of different individuals and need only distinguish between the scent of human and animal remains, a breed such as a bloodhound that is traditionally known for its acuteness of scent is not necessary to use as a cadaver dog. Deputy Pikett further explained that a bloodhound is typically not a good cadaver search dog because bloodhounds are “not great obedience dogs” and typically must be worked on a lead, or leash. Deputy Pikett testified that in a large area search, a dog that can work off-lead is more credible because it is free to make an independent find, without the possibility that its handler will lead it to a particular area. Deputy Pikett said that other breeds, "such as Rottweilers mixed-breeds, Lab[radors] and so forth" can perform as cadaver dogs. We conclude that the breed of dog characterized by acuteness of scent is not determinative of a cadaver dog's qualification. However, we slightly modify this factor to examine whether the dog type or breed typically works well off-lead.

For the second factor, the court concluded that

Cadaver dogs are not trained to discriminate between human beings based on scent because the identity of the body being searched for is generally not in dispute. Deputy Pikett explained that the important distinction for a cadaver dog to master is between human remains and animal remains. The training begins with fairly fresh cadaver scent in a relatively easy location. The dogs progress to older body scents and then to the introduction of foreign scent distractions such as deer, horse, or cow bones. We conclude that this requirement must be adapted slightly for determination of the reliability of cadaver dogs by examining whether the dog has been trained to discriminate between human cadaver scents and animal scents.

And, in connection with the third factor, the court determined that

Proven reliability must be a qualifying characteristic of a cadaver dog, just like the need for proven reliability of dogs used in scent-lineups and the tracking of suspects. Deputy Pikett testified that a dog that cannot pass the training tests—for example, by failing to distinguish human and animal remains—will be retired from cadaver search work. To ensure that the dog can distinguish human and animal scents, Deputy Pikett explained that a dog in training must first prove that it can actually find a human scent, and then the training progresses to older scents, followed by the introduction of foreign scents. We therefore conclude that this factor is applicable to the qualifications and reliability of a cadaver dog.

In reviewing (relatively scarce) precedent from across the country, it seems like the Trejos opinion is not an anomaly; instead, courts use pretty lax standards in determining whether cadaver dogs are qualified.

Search Me

In light of yesterday's post, I want to address a second aspect of cadaver dogs, drug-sniffing dogs, etc. In opinions such United States v. Place, 462 U.S. 696 (1983), and Illinois v. Caballes, 543 U.S. 405, 409 (2009), courts have found that canine sniffs of luggage and vehicles (and sometimes homes) are not searches and thus do not trigger Fourth Amendment scrutiny. And the basis for these rulings is that these sniffs do constitute a significant enough infringement on any reasonable expectation of privacy.

So, let's return to yesterday's post for a second. That post discussed an article and a concurring opinion arguing against the Fourth Amendment's singular focus on privacy and arguing for the recognition that the Amendment also protects other values such as security, dignity, and liberty. As noted, the concurring opinion in yesterday's post noted how this shift in focus might change the outcome in warrantless GPS attachment cases.

Well, how might this shift alter the analysis of whether search warrants/probable cause/reasonable suspicion are needed before the police call for the drug-sniffing dog, the canine dog, etc.? Well, part of the answer might be found in Has the Fourth Amendment Gone to the Dogs?: Unreasonable Expansion of Canine Sniff Doctrine to Include Sniffs of the Home, 88 Or. L. Rev. 829 (2009), by Leslie A. Shoebotham, a professor at the Loyola University New Orleans School of Law.

Part of Professor's analysis focuses upon the intrusiveness of police dog behavior. First, there is intimidation:

Although we might prefer to visualize a drug-detection dog as being a member of the U.S. Agricultural Department's "Beagle Brigade" or a Labrador retriever, like most explosives-detection dogs, such is not the case. Drug-detection dogs are often selected for the intimidation factor that they produce. The intimidation is, therefore, intentional. When asked, and sometimes when not asked, these dogs can be dangerous. Unlike an ordinary weapon, which obviously lacks a mind of its own, the potential exists for a dog, even a well-trained dog, to be disobedient. Courts that refuse to apply Kyllo in the home-sniff context on the basis that dogs are not technological devices cannot also avoid consideration of the intrusiveness that arises because dogs are not mechanical devices. Simply stated, drug-detection dogs produce fear, intentionally so, in the ordinary person. There is a societal cost associated with introducing intimidating dogs into the curtilage of a private home, and the Court has instructed that societal "understandings" are an appropriate consideration in determining reasonableness under the Fourth Amendment.

Second, there is historical oppression:

While the courts that refuse to apply Kyllo emphasize our societal recognition that dogs are familiar and have been used by law enforcement for tracking purposes for centuries, these courts ignore the fact that dogs have also been used as tools of institutional oppression for perhaps even longer. Although dogs have long been used by military forces, as early as 2500 BC, Egyptians used dogs on civilians for purposes of crowd control to protect the pyramids. The Spanish conquistadors used dogs to kill and subdue the native populations upon their arrival in America. Dogs were used to attack Native Americans and to chase down runaway slaves. During the Civil War, dogs were used to intimidate and injure African-American soldiers fighting for the North. Following Pearl Harbor, dogs were used to intimidate Japanese Americans residing in Hawaii.

In more modern times, police dogs have been used for crowd control, even on nonviolent civil rights demonstrators. The passage of time may not have healed these wounds. Recent events have again brought intimidating dogs to the forefront of our national consciousness. While the German shepherds used at Abu Ghraib prison were military trained, the fact remains that our country has an unfortunate history of using dogs to target people of color for oppression by both military forces and civilian police agencies. This sad legacy cannot be ignored in assessing the intrusiveness of introducing a police dog into the curtilage of a private home or using a dog for suspicionless screening of multidwelling residential complexes.

Third, there are potential religious objections:

Americans love dogs. It may therefore be hard for the ordinary American to fathom that many Muslims view dogs as unclean and that contact with dogs, especially canine saliva, is so offensive that it necessitates a purification ritual. Our increasingly multicultural society requires societal recognition that contact with dogs is offensive to many Muslims, however, and perhaps to followers of other religions as well. In other parts of the world, these objections are taken seriously. In the United Kingdom, for example, guidelines are being considered that would require detection dogs to wear rubber-soled "bootee" when searching a Muslim's home or a mosque. The point of this discussion is not to suggest that special rules should apply to any particular group, but rather to illustrate that contact with dogs, or contamination from dogs, is highly objectionable to some. Therefore, suspicionless entry of dogs into the curtilage of a home, or dragnet use of detection canines, must be carefully reconsidered.

Now, under the Supreme Court's current privacy-focused conception of the Fourth Amendment, courts have not found these three types of intimidation to be sufficient to render much police dog behavior "searches" that require Constitutional. But what if courts apply Justice Ginsburg's "more majestic conception" of the Fourth Amendment and recognize that it also protects other values such as security, dignity, and liberty? Do "the people' have security when they can be exposed to dog sniffs without any articulable suspicion? Is their dignity preserved with such unwarranted behavior? I think that the answer is likely "no" in many cases.

-CM

Article Of Interest: Thomas Crocker's The Political Fourth Amendment

I have written five previous posts (here, here, here, here, and here) about court opinions and articles addressing the issue of whether police should be required to obtain a search warrant before attaching a GPS device to a suspect's vehicle. Invariably, federal courts find that there is no warrant requirement under the Fourth Amendment pursuant to United States v. Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 705 (1984), because a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. See, e.g., United States v. Cuevas-Perez, 2011 WL 1585072 (7th Cir. 2011). State courts are divided on the issue, but not based upon differing interpretations of the Fourth Amendment. Instead, while some courts adhere to federal precedent, other courts find that attaching a GPS device to a suspect's vehicle without a warrant violates state constitutional law provisions (for instance, Massachusetts found such an attachment to be a seizure under its state constitution).

Neither the majority nor the concurring opinion in Foltz v. Commonwealth, 706 S.E.2d 914 (Va.App. 2011), deviated from standard operating procedure, but the concurring opinion suggested a fundamental recalibration of how we think of the Fourth Amendment. The same goes for a terrific recent article, The Political Fourth Amendment, 88 Wash. U. L. Rev. 303 (2010), by Thomas Crocker, a professor at the University of South Carolina School of Law. This post will consider the trenchant arguments made by both the opinion and the article.

At first glance, Foltz looks like a run of the mill modern GPS tracking case. Police suspected that David Foltz was committing sexual assaults, they affixed a GPS device to his work van (without a warrant), they tracked his van, and they caught him in the act. The trial court denied Foltz's motion to suppress, he was convicted of abduction with intent to defile, he appealed, and a panel on the Court of Appeals of Virginia affirmed. Foltz then asked for and received en banc review on the issue of whether the warrantless attachment of the GPS device violated the Fourth Amendment, which provides that 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Ultimately, the court quickly affirmed, concluding that the Fourth Amendment only applies when an individual has a reasonable expectation of privacy and that Foltz lacked such expectation by driving his van on public thoroughfares. 

It was not until Judge Humphreys' concurring opinion that things got interesting. Really interesting. Judge Humphreys of course acknowledged the existing "reasonable expectation of privacy" framework that the Supreme Court has developed, which is why he merely concurred (rather than dissented), but then he started to dismantle it. He began by noting that

although "privacy" is the centerpiece of current Fourth Amendment jurisprudence, the word "privacy" does not actually appear in the text of the Fourth Amendment. The constitutional protection actually promised is "security," and the time may be ripe for the courts to reconsider that term as it was used and understood by the framers of the amendment in the context of our current "Information Age" where privacy is becoming an increasingly scarce commodity. While "privacy" and "security" are overlapping concepts, they are not congruent. Granting that we as a people feel freer and more secure when our government and its agents respect our privacy, the limits of government intrusion that reasonable citizens find unacceptable are not necessarily circumscribed only by what they choose to keep private.

What this meant for Judge Humphreys was that

Perhaps the time has come that courts recognize that by its own terms, the Fourth Amendment actually stipulates that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. Const. amend. IV (emphasis added). Courts tend to abridge this phrase essentially to "the right against unreasonable searches and seizures shall not be violated." Thus, the words "people" and "secure" get lost in the editing. Nevertheless, the framers presumably chose those words with some care and deliberation. With regard to their use of the word "people," they were certainly capable of speaking in the singular. For example, in the Fifth Amendment they provide, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury,...nor shall any person be subject for the same offense to be twice put in jeopardy...." U.S. Const. amend. V (emphasis added). This indicates to me that their choice of the plural in the Fourth Amendment was deliberate. In other words, the protection afforded by the Fourth Amendment is not just concerned with how government searches and seizures affect the interests of particular individuals, but it is also concerned with those that affect the public generally. Moreover, the overall purpose of the Bill of Rights was to restrain the arbitrary and capricious use of government power. Thus, given the Fourth Amendment's ratification in the aftermath of a revolution largely precipitated by such abuse of governmental power, it seems obvious to me that "security" was actually a significant legal concept in the minds of the framers—something free people enjoyed in contrast to the insecurity generated by the arbitrary exercise of government authority as experienced by the framers and their fellow colonists prior to our independence as a nation.

If we consider the increasingly ubiquitous presence of public video surveillance camera networks, the use of electronic scanners that perform a virtual "strip search" of those who make use of some forms of public transportation along with the increasing use of GPS tracking devices, whatever intuitive unease we feel about the methods employed by agents of the government has less to do with a sense that the individual "right to privacy" of any particular person has been violated than with concerns about our sense of security from governmental monitoring of the citizenry as a whole.

That said, Judge Humphreys wasn't quite willing to flip the switch from concurring to dissenting opinion, but he did issue a missive that read like an amicus brief to the Supreme Court should it take a GPS tracking case:

Although the Supreme Court of the United States will ultimately have the last word, "the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish."...Therefore, as the courts consider how to construe the confluence of revolutionary advances in technology with the fundamental principles embodied in the Fourth Amendment, it may be time, in cases where these issues may be more appropriately addressed than this one, for the courts to do so with the express language and the original purpose of the Fourth Amendment in mind. Perhaps in addition to determining whether an individual's reasonable expectation of privacy has been violated, we might also consider whether reasonable people would remain secure in their liberties if a particular investigative or surveillance method were pervasive. If they would not, the courts should determine what restrictions—such as requiring reasonable articulable suspicion of criminal activity or a judicially authorized warrant based upon probable cause—would sufficiently narrow the method's application in a way that leaves all reasonable citizens with a realistic sense of security from arbitrary and invasive governmental monitoring of their daily activities.

Judge Humphreys' discussion dovetails nicely with Professor Crocker's aforementioned article, The Political Fourth Amendment.

Twin Falls: The Fourth Amendment, Protecting Privacy, and Regulating Police

When I was a junior tennis player, my only training consisted of daily matches against the garage door followed by matches against other neophytes. I adopted a two-handed backhand that was roughly taken from how I held a baseball bat. After several years of playing, I finally went to a tennis camp, where the coach diagnosed my backhand as a case of "fighting hands." My left hand was pulling the racquet up and my right hand was pulling the racquet down. Sometimes, my hands worked in harmony, and I would hit a great shot. Other times, I would hit the ball into the bottom of the net or over the fence. According to Professor Crocker, the Supreme Court's current Fourth Amendment jurisprudence is kind of a case of fighting hands.

He notes that the Court has interpreted the Amendment as serving two masters: protecting privacy and regulating the police. And, according to Professor Crocker, "[t]he twin goals of protecting privacy and regulating police sometimes complement each other, but at other times operate in significant tension." Indeed, this tension often exists within a single case.

As Professor Crocker notes, in Belton v. New York, 453 U.S. 454 (1981), the majority focused almost exclusively on providing a bright line rule to law enforcement in finding that police can automatically search the passenger compartment of a vehicle after arresting its recent occupant. In his dissent, Justice Brennan mocked the majority's devotion to creating a bright line rule, concluding that it would justify the search of passenger compartments even if suspects were handcuffed and placed in the back seats of police cruisers. And indeed, Justice Brennan's forecasting proved prescient as this "Belton fiction" persisted for decades before the Court recently decided that the scales had been tipped too far against privacy in Arizona v. Gant, 129 S.Ct. 1710 (2009).

In Gant, the tables were turned, with the majority dismantling the Belton fiction and holding that an automobile search incident to a lawful automobile arrest is only justified when the arrestee in unsecured and within reaching distance of the passenger compartment at the time of the search. Meanwhile, Justice Alito's dissenting opinion, unlike the majority opinion, ignored privacy concerns and focused singularly on regulating and protecting the police.

Professor Crocker then points out that in certain cases, such as Wyoming v. Houghton, 526 U.S. 295 (1999), "[t]hese twin purposes are sometimes mediated by the textually determined standard of reasonableness, adding further occasions to consider regulatory interests." But as he notes

Under such a balancing approach, what is reasonable will depend, however, on how a court characterizes the interaction between the citizen and police. “Reasonableness” is not an independent inquiry. To conclude that a search is “reasonable,” courts must make prior judgments about the importance of a particular police practice or a particular privacy interest. When conducting a balancing inquiry, if the citizen is construed to have a diminished expectation of privacy, then the needs of effective law enforcement will almost always predominate.

So, is there a way to read the Fourth Amendment so that litigants, citizens, and law enforcement officals do not need to depend on whether the Court decides to prioritize privacy or police on a given day? Professor Crocker contends that the answer can be found in Justice Ginsburg's dissenting opinion in Herring v. United States, 555 U.S. 135 (2009). In Herring, the majority created the good faith exception to the exclusionary rule, finding that because "[t]he exclusionary rule was crafted to curb police" misconduct, only "deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligen[ce]," will justify its application. Under this exception, courts are to determine, on a case-by-case-basis, whether applying the exclusionary rule based upon this officer's (misconduct) in this case would deter future misconduct; "the Court does not consider the social cost of losing trust in government, the social cost to innocent victims, or the social cost of having the judicial system confer its imprimatur on lawless conduct by police." Therefore, the warrantless search conducted in Herring, based upon a compute data base error, did not justify exclusion.

Conversely in her dissent, Justice Ginsburg focused "on future constitutional violations that innocent persons will suffer." She noted that "'[t]he offense to the dignity of the citizen who is arrested, handcuffed, and searched on a public street simply because some bureaucrat has failed to maintain an accurate computer data base' is evocative of the use of general warrants that so outraged the authors of our Bill of Rights." She also recognized that given how much information is increasingly accessible about individuals through national and local databases, the risk of harm from the majority's good faith exception is not insignificant and "raise[s] grave concerns for individual liberty."

Professor Crocker thus points out that

the dissent's conception of the Fourth Amendment is focused on protecting individual liberty and citizen dignity. Dignitary harms result from unjustified physical contact by state agents. They are experienced by particular persons and shape how persons view their own security and how they fulfill their promise of liberty. Extending beyond individual acts of particular police officers, Fourth Amendment violations shape how individual persons experience their everyday relations to the institutions of government. Because individuals may rarely have direct interactions with state officials, they may suffer additional harms when subjected to an illegal search. These interactions can influence how particular individuals view the trustworthiness of state officials and can shape their overall view of governing institutions and authority. Unremedied Fourth Amendment violations can also impact an individual's sense of political belonging within a community. If constitutional protections fail to apply to them, then persons may legitimately question their standing within the political community. The limitation on searches and seizures, as a "right of the people," does more than regulate the conduct of particular officers. It establishes a political relation between "the People" and the institutions that exercise sovereign power in their name. 

In other words, the Herring majority read the Fourth Amendment alongside the criminal procedure provisions of the Fifth and Sixth Amendments as a provision having merely a regulatory purpose. It is this same reading which for decades has supported the "third-party" doctrine, under which a person loses Fourth Amendment protections over anything she knowingly exposes to another person.

Conversely, by using a wider frame, "Justice Ginsburg recognize[d] the liberty and dignity interests of persons made vulnerable when barriers are removed from government use of illegally obtained evidence." And this "wider frame allows us to see the connections between First and Fourth Amendment protections, and thus to see more than a contrast between protecting privacy and regulating police.

According to Professor Crocker, the Herring majority was like a horse with blinders, missing the Constitutional forest for the trees. He compares its conception of the Fourth Amendment to Josef K. in Franz Kafka's The Trial, focusing upon a single guard in a painting, not realizing that the painting is of Christ's entombment. He just as easily could have compared it to Cameron staring at "A Sunday Afternoon on the Island of La Grande Jatte" in Ferris Bueller's Day Off, seeing all the points and thus missing the point of how they fit into the larger mosaic.

Professor Crocker views the Herring majority as making the same mistake and gives three reasons for a judicial vision of the Fourth Amendment focused on liberty and dignity, placing it alongside provisions like the First Amendment that secure "the People's" rights to political liberty:

•First, government officials have at their fingertips ever more powerful sources of information that can be used to intrude into our lives. The anonymity of the public speaker may increasingly be a creature of the past, as recognition and tracking technologies make it easier for government officials to monitor our public movements and activities;

•Second, searches and seizures directly impact personal participation in community and political life. When a person's race, religion, or political preferences contribute to whether she is subject to search, more than her privacy or equal status is implicated. Her full political participation in the polity is at stake; and

•Finally, flourishing political life requires the freedom to think, listen, and speak with others openly in public space, without the fear of repercussions, whether in the form of sanctions or in the form of unwanted government surveillance. Uninhibited and robust political life therefore requires the protections afforded by both the First and Fourth Amendments. If the First Amendment protects no more than the ability to speak in private, then it would protect little that is of political value.

A People's History of the United States

But it is not just these reasons that support Professor Crocker's claim. Instead, he gives both textual and historical arguments. As noted, the concurrence in Foltz assumed that the Fourth Amendment must have been a response to the abuse of governmental power that the framers had just revolted against. Professor Crocker corroborates this claim, pointing out that "[t]he Fourth Amendment is rooted in cases that have as much to do with political speech as they do with searches and seizures." These cases

focused on limiting the political power of government officials to investigate and prosecute political crimes. In relation to seditious libel or the arbitrary power of customs officials, liberty was the central value. 

Indeed, 

a value in protecting only what is publicly undisclosed does not fit well with an eighteenth-century conception of ordinary life. Communities and homes were not constructed or occupied in ways that led to expectations of privacy as undisclosed to others. Community life was life lived in public, not private. There was no fully modern equivalent of "private life" lived apart from the community. Modern privacy is a social construct, conceptually cultivated and practically produced in forms of everyday life. 

Therefore, while privacy his become the linchpin of Fourth Amendment jurisprudence, liberty and security can and should remain equally important, "even if they are often latent Fourth Amendment values."

Why? Well, again, recall that the Foltz concurrence assumed that there was something behind the framers casting the Fourth Amendment as "[t]he right of the people...." Professor Crocker engages in a similar analysis. As noted above, the question is whether the Fourth Amendment is merely a criminal procedure provision or something broader.

In addition to the Fourth Amendment's protection of the "right of the people," the First Amendment protects "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," while the Second Amendment refers to a "right of the people to keep and bear Arms." Indeed, the Ninth Amendment assures against denial or disparagement rights "retained by the people," and the Tenth Amendment confirms powers "reserved...to the people."

Given this fact, it makes sense to see the Fourth Amendment as the Constitutional sibling of these collective rights rather than the atomistic criminal procedure right envisaged by the Court. Indeed, this point is driven home by the fact that

The Fifth Amendment protects persons under due process and other provisions, while the Sixth Amendment guarantees rights to the accused in criminal prosecutions. Both the Sixth and Seventh Amendments protect the role of juries, a political body closely associated with "the People" themselves. "We the People," however, are not synonymous with the individual persons who comprise the sovereign body. 

Thus, the criminal procedure provisions of the Amendments to which the Fourth Amendment have been compared merely protect the rights of "persons" while the Fourth Amendment protects the collective right of "the people." In essence, then, the narrower lens used by the Herring majority is like the pan and scan version of a movie that distorts the original and chops off its sides while the wider lens used the Herring dissent allows us to see the whole as it was originally intended.

The problem with the Herring majority and those who have viewed the Fourth Amendment as focused on individual persons is that

Narrowly focusing on a personal right to privacy ignores the "numeric problem" of "the right of the people," who appear in different guises as individual persons and as a collective people. Persons can be viewed as individual persons who enjoy the particular "Blessings of Liberty" in their private lives and homes, and simultaneously they can be viewed as part of a collective political body that has a popular sovereign right to the "Blessings of Liberty" in their public and political lives. To appreciate this dual aspect, we must recognize that, at times, something more than an individual right is at stake. For example, a First Amendment "right of the people to peaceably assemble" is one that can be invoked by individual persons while simultaneously protecting collective interests. Privacy protections are only particular manifestations of political liberties. More than self-expression, the First Amendment protects a value that is collective and public. "At the heart of our jurisprudence lies the principle that in a free nation citizens must have the right to gather and speak with other persons in public places." They do so in order to make possible the political realization of popular sovereignty, the very people the Fourth Amendment seeks to protect. More than personal privacy, the Fourth Amendment protects a value of noninterference in our everyday lives that makes possible the political appearance of popular sovereignty, "the [very] People" on whom the First Amendment depends. Recognizing the textual significance of protecting a "right of the people" allows the Court to see the individual case as part of a collective interest.

Thus,

In order to see the Fourth Amendment's broader role within the Constitution that does more than regulate police practice, we must take seriously the fact that the Fourth Amendment's textual purpose is to secure a "right of the people," which places it textually alongside the First, Second, and Ninth Amendments that similarly seek to protect "rights of the people." "[T]he People" who assemble in the First Amendment and "the People" who have a right "to keep and bear arms" in the Second are "the [same] People" who have a right "to be secure in their persons, houses, papers, and effects." This same political body created a new polity out of a commitment to words ordained in the voice of “We the People." To ignore the political importance of the Fourth Amendment's protections, and to remain anachronistically focused on the practices of an institution whose existence was not yet imagined, is to miss entirely an available guiding feature of constitutional text and design. It also misses important conceptual connections among the various constitutional values that form the system of liberties whose blessings the Constitution seeks to secure.

Chasing Liberty

So, if the Fourth Amendment does not encompass merely an individual right to privacy but also a collective, political right to liberty and security, how might that right look? According to Professor Crocker, Lawrence v. Texas, 539 U.S. 558 (2003), in which the Supreme Court struck down a ban on sodomy, provides a partial blueprint, "a basis for reading the Fourth Amendment as part of a Constitution focused on protecting liberty and not only on privacy." According to Professor Crocker,

Beginning like a Fourth Amendment case, the opinion quickly moves through substantive due process concerns over "spheres of our lives" to First Amendment values of "freedom of thought, belief, and expression," suggesting that the Constitution protects liberty through an interrelated web of textual connections. Without citations, we are invited to read the Constitution's protection for liberty holistically as purposing to "secure the Blessings of Liberty" in all their manifestations. Moreover, Justice Kennedy acknowledges that liberty is realized in multiple ways, unlike the Court's increasingly narrow understanding of privacy as secret.

Professor Crocker acknowledges that "Lawrence is no doubt a due process case, striking down a criminal statute that denigrated the lives and dignity of homosexual persons." But he goes on to note that

Lawrence also makes salient the Constitution's protections for liberty across a number of doctrinal frameworks, purposefully glossing over the specific decision rules designed to implement constitutional principles. As a model of constitutional interpretation, it suggests that specific substantive issues can be addressed by examining larger constitutional contexts. The Lawrence Court did not first decide a tier of scrutiny and then balance the state's interests and chosen means against the nature of the right affected. Lawrence began where the Constitution itself begins, with the "Blessings of Liberty" that "We the People"sought to secure.

Using Lawrence as a model for examining Fourth Amendment issues requires courts to look at the broader implications of everyday social practice when making particular decisions. Moreover, it requires rethinking the "third-party" doctrine. Having a certain amount of security in the ability to interact with other persons free from the fear that they are effective agents of the state is analogous to speaking without fear of seditious libel. Security in everyday commerce with others is part of the essence of political liberty. Although the "third-party" doctrine provides scant privacy protection against pervasive government surveillance through data mining and other activities, a Fourth Amendment attuned to the liberty interests of persons would provide more robust grounds for regulation. Just as First Amendment activities may be chilled by overly broad regulations of speech, "the People's" political life lived in the company of others, both in and out of doors, can be chilled. And just as the First Amendment is doctrinally attuned to this prospect, a reoriented Fourth Amendment should be as well.

Conclusion

As Professor Crocker notes, in the classic Fourth Amendment case, Boyd v. United States, 116 U.S. 616 (1886), the Supreme Court held that

It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but  it is the invasion of his indefeasible right of personal security, personal liberty and private property...

In a world where we have gone from a cop on a stakeout to the possibility of 24/7 monitoring, in a world where most information about most people is only a few clicks of the mouse away, has the Court torn the heart out of the Fourth Amendment by finding that it only applies when an individual has the reasonable expectation of privacy? Has the Court deracinated the Amendment not only from its political roots but also from its place in the Constitutional mosaic? That's the implication of the concurring opinion in Foltz, and it is certainly the contention of Professor Crocker. I asked Professor Crocker what led him to write his article, and he responded:

I was led to write the article based on the following two observations: Because so much about our lives gets shared with others (friends or businesses), but the Supreme Court's third party doctrine says that what is shared is no longer private, the scope of Fourth Amendment protections can be rather narrow.  Even when information or spaces are private, the Supreme Court often focuses on the needs of law enforcement in a way that fails to balance appropriately the privacy interests at stake.  So, if privacy is increasingly inapplicable, or not even discussed in light of law enforcement needs, perhaps it is time to concentrate on other constitutional values, such as liberty, that might have greater purchase in these situations.

-CM

Higher Learning: EDVA Finds Documents Submitted Without Expert Testimony Not Admissible As Learned Treatises

Federal Rule of Evidence 803(18) provides an exception to the rule against hearsay for learned treatises. Specifically, it provides an exception

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, [for] statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

Thus, learned treatises can be admitted but only in conjunction with expert testimony, which created a problem for the plaintiff in Hogge v. Stephens, 2011 WL 2161100 (E.D.Va. 2011).

In Stephens, Thomas Hogge, a Virginia inmate proceeding pro se and in forma pauperis, filed a civil action under 42 U.S.C. § 1983. His complaint arose out of allegations that the defendants, including Dr. Alvin Harris, improperly diagnosed and treated him for hepatitis C while he was incarcerated at the Deerfield Correctional Center. Specifically, the plaintiff alleged

that Harris should have requested "some type of imaging study of [P]laintiff's liver," and should have requested that complete blood work be done....Plaintiff also requested hepatitis A and hepatitis B vaccinations from Dr. Harris....Dr. Harris denied the requests....Plaintiff contend[ed] that the denial of this request violate[d] the Eighth Amendment....

Plaintiff admit[ted] that Dr. Harris submitted a request that a liver biopsy be performed..., Harris put Plaintiff on a daily multivitamin..., Harris requested that Plaintiff see a G.I. specialist..., and Harris required routine blood work every six months....Dr. Harris told Plaintiff that Dr. Harris would not submit a request for treatment because the request would be denied due to Plaintiff's low platelet count....Plaintiff underst[ood] that the biopsy and G.I. specialist requests were denied due to Plaintiff's low platelet count....Nevertheless, Plaintiff state[d] that Harris "refused to do anything at all concerning care and treatment."

The defendants eventually moved for summary judgment. In response, Hogge submitted several documents which allegedly supported his claim that Dr. Harris acted improperly. In finding that this evidence was inadmissible, the United States District Court for the Eastern District of Virginia held

that many of the documents Plaintiff submitted in support of his allegations against Dr. Harris, including the medical articles, constitute[d] hearsay. See Cornelius v. Wilkinson,No. 1:05–cv–00545, 2006 WL 2404136, at *5 (N.D.Ohio Aug. 18, 2006) ("Plaintiff submits several medical articles.... However these documents are not authenticated and constitute hearsay."). The Federal Rules of Evidence do provide a hearsay exception for learned treatises. Fed.R.Evid. 803(18). Such documents are only admissible, however, if they are "'called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination.'" Cornelius, 2006 WL 2404136, at *5 (quoting Fed.R.Evid. 803(18)); see Wik v. Shelton, No. CV 07–1726–HA, 2009 WL 2163529, at * 1 (D.Or. July 17, 2009) (disregarding the submission of a medical publication meant to establish a medical standard of care because the document was not relied on by an expert witness). Because "Plaintiff fail[ed] to present these medical articles in conjunction with expert testimony," they "are inadmissible and may not support Plaintiff's allegations." Cornelius, 2006 WL 2404136, at *5; (see Resp. Mot. Summ. J. (Docket No. 63) 7 (calling the documents "valid and legitimate medical research").)

-CM

Judge Advocate?: Court Of Appeals Of Indiana Refuses To Become An Advocate For Defendant In Connection With Waived Rule 609(b) Argument

Indiana Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or, if the conviction resulted in confinement of the witness then the date of the release of the witness from the confinement unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

So, let's say that a defendant is convicted of unlawful possession of a firearm by a serious violent felon in August 2010 without prior notice by the prosecution. And let's say that at trial, the prosecution impeached the defendant with evidence of his 1970 conviction for burglary. Finally, let's say that the defendant later appeals, claiming, inter alia, claiming that the introduction of evidence of his prior conviction deprived him of the presumption of innocence, but, as at trial, he makes no reference to the prosecution's lack of notice. What should the appellate court do? According to the recent opinion of the Court of Appeals of Indiana in Teague v. State, 2011 WL 2138887 (Ind.App. 2011), the answer is "absolutely nothing."

The facts in Teague were as stated above, with James Teague being convicted of unlawful possession of a firearm by a serious violent felon. And here is the totality of the Court of Appeals of Indiana's discussion of the notice issue:

We hasten to note...that Teague was convicted of burglary in 1970. Indiana Rule of Evidence 609 states that convictions more than ten years old from the day of sentence or the day of release from confinement are not admissible for purposes of attacking the credibility of witnesses unless the court determines in the interests of justice that the probative value substantially outweighs the prejudicial effect. Moreover, if a party intends to use such evidence, it must provide the adverse party with sufficient advance written notice. Ind. R. Evid. 609. We have no indication that such notice was provided, but Teague did not object to its introduction at trial and does not challenge its admission on appeal as a violation of Rule 609. We may not become an advocate for Teague, and conclude any argument he has on this basis to be waived.

So, are there grounds to criticize the Court of Appeals of Indiana? Well, I'll start by pointing out that the court did not conclude that no notice was provided; instead, it merely pointed out that there was no indication that notice was provided. So, it is tough to criticize the court for not acting if it was unclear whether there was notice.

But let's assume that it was clear that there was notice. Was the court correct that if it raised the issue sua sponte it would have become an advocate for Teague? I don't see it. Instead, the court merely would have been an advocate for the rules of evidence. Indiana Rule of Evidence 609(b) flatly says that evidence of convictions that are more than ten years old are inadmissible unless there is advance notice. And the reason that advance notice is required is so that the adverse party can develop arguments for why the evidence is inadmissible so that, in turn, the judge can decide whether the evidence satisfies Rule 609(b)'s difficult balancing test. And frankly, it is tough to see a conviction from 1970, and especially one that is not for a crime of dishonesty or false statement, would pass the Rule 609(b) balancing test at a trial held in 2010.

-CM

When Innocence Is Pink: Why There Is A Gender Gap In Exonerations Of The Wrongfully Convicted And Efforts That Might Shrink It

There are over 60 innocence projects nationwide, and they do tremendous work. According to the Cardozo Innocence Project website, "There have been 271 post-conviction DNA exonerations in United States history." The Innocence Project has profiles of each of the exonerees and their cases on its website, and these profiles provide both a compelling read and a powerful indictment of the criminal justice system in this country.

Until I read Sandra Svoboda's article, When innocence is pink, however, I hadn't noticed something very important about these exonerees: Only 4 of them are women. When you think about this for a second, it make sense. In her article, Svoboda begins by telling the tale of Julie Rae Harper's wrongful conviction for murder and her ultimate exoneration and then notes that

While much attention has been given to the hundreds of men who have been exonerated of rapes and murders by DNA evidence during the last decade, Harper is among the handful of wrongly convicted women who have had their cases re-examined and their guilty verdicts changed without the relative luxury of such science and forensic proof.

The goal of this post is two-fold: First, I want to highlight some of the most interesting parts of Svoboda's article. Second, I want to discuss two efforts that could lead to a shrinking of the exoneration gap.

Initially, I certainly recommend that all readers check out Svoboda's article, which is a terrific read. That said, here are a few key portions that I want to highlight:

•"'The main difference with women from men in wrongful conviction cases is women are generally accused of harming someone they're close to,' says Laura Caldwell, an attorney and director of the Life After Innocence Project at Loyola University's School of Law in Chicago. 'There's a double-whammy.'"

•"[E]ven for recent decades, there's no tallying or cataloging of cases where women have been wrongfully convicted and exonerated....Some researchers, though, have analyzed the known cases of women's exonerations, which are not many but continue to increase. Just 25 women were among roughly 700 cases of known wrongful convictions in 2005 as cataloged by Northwestern University's Center for Wrongful Convictions, according to published research."

•"Wisconsin researchers Mitch Ruesink and Marvin Free examined dozens of cases of wrongly convicted women in the United States and reached several conclusions. First, the women were most often convicted for murder or child abuse. Second, while the most common reason for men's wrongful convictions was eyewitness error, the most prevalent problem for women was unethical police and prosecutors. An added cause of women's wrongful convictions was erroneous testimony from alleged child victims, a tough piece of the case for juries to overlook and acquit."

•"'If you look at the causes of wrongful conviction, they apply equally to women as they do to men. It's just, unfortunately, given the nature of DNA exonerations, women are not going to be able to be benefited by it as much,' says Peter Neufeld, co-director of the Innocence Project at Cardozo School of Law at Yeshiva University in New York. 'It's just more difficult to exonerate because we don't have DNA evidence to test.'"

So, what is being done?

Women and Innocence

As Svoboda's article notes, one effort is the new group, Women and Innocence. According to the group's website:

We began by listening to the voices raised from within the innocence movement.  There were murmurings, inquiries and calls for assistance.  There were questions asking the obvious, such as, "Why aren’t we doing this…?", "Hasn’t anyone noticed that…?", "We should have an….".  Women and Innocence began as a response to these questions.  We are representing a voice that has long existed and needed to be heard.

Our mission is to create a voice for women within the innocence movement.  We have created a forum where ideas, discussions, stories and the important truths they hold, may be shared.  Through research and promoting an ongoing dialogue we hope to bring about increased awareness of the role of women who have been wrongly convicted.

We hope to create a shift in thinking so that the valuable differences between each woman’s story may be appreciated.  For within every variance lay beauty and value and a perspective that can only be seen once its vantage point has been taken.

The group held the first Women and Innocence Conference last year (see here and here), is seeking nonprofit status, and is developing grant applications for funding. If you want more information about the group and/or want to become involved, click here.

Michigan Innocence Clinic

According to its website, the Michigan Innocence Clinic is unique among innocence clinics.

Unlike many other innocence clinics, which specialize in DNA exonerations, the Michigan Innocence Clinic focuses on innocence cases where there is no biological evidence to be tested. Under the supervision of its founders, Professors Bridget McCormack and David Moran, Innocence Clinic students work on all aspects of the cases, including investigating new evidence, preparing state post-conviction motions, conducting hearings and arguing motions in conjunction with these motions, and filing appeals to the state and federal courts. The Michigan Innocence Clinic has already exonerated several of its clients since its inception in 2009.

As noted in this excerpt, one founders of the Michigan Innocence Clinic is Bridget McCormack, who  "also serves as associate dean for clinical affairs and is a clinical professor of law. She has taught in the Michigan Clinical Law Program, focusing on criminal defense cases, criminal law, a domestic violence clinic, and a pediatric advocacy clinic." Recently, she (along with Robert Kuehn) posted Lessons from Forty Years of Interference in Law School Clinics on SSRN. The other founder is David Moran, who also "teaches courses in Criminal Law and Criminal Procedure. Professor Moran has argued five times before the United States Supreme Court. Among his most notable cases are Halbert v. Michigan, in which the Supreme Court struck down a Michigan law that denied appellate counsel to assist indigent criminal defendants who wished to challenge their sentences after pleading guilty."

Here's a pretty compelling video piece on the Clinic's representation of Dwayne Provience, which does a nice job of explaining the Clinic's goals. As Svoboda's article explains, the Clinic was able to secure a "not guilty" verdict in the case of Julie Baumer, who had severed 4 years of a sentence on a felony child abuse conviction before being given a new trial. The Baumer case was not completely anomalous in terms of the gender of the exoneree. As Svoboda notes:

With the Innocence Project and its dozens of national affiliates working on DNA cases, the University of Michigan's new Innocence Clinic is handling only non-DNA cases, and three of the first 13 clients have been women.

"We haven't made a lot of progress in translating that into cases where there is no DNA evidence and, unfortunately for women, there often isn't any," says Bridget McCormack, co-director of the University of Michigan clinic.

Still, the clinic's three cases with female clients are progressing with some successes. The Michigan Supreme Court has agreed to hear one of the women's cases — a dispute over when courts can order indigent defendants to pay child support.

In a second case, Lorinda Swain, has been granted a new trial by a Calhoun County judge, but that was overturned by the Michigan Court of Appeals and upheld by the Supreme Court. The clinic has filed a motion for reconsideration of that decision.

That Michigan Court of Appeals opinion was People v. Swain, 794 N.W.2d 92 (Mich. App. 2010), and it illustrates the difficulty with trying to exonerate women who were allegedly wrongfully convicted: They often must prove actual innocence. In the absence of DNA evidence, that's a tough hurdle to leap. That said, it is not impossible. A judge recently agreed to hear more evidence in the Swain case as the Michigan Innocence Clinic tries to get her a new trial. And while the hearing on that evidence has been delayed, there is always hope.

-CM

If It Ain't Broke: Daniel Capra's Response To Sam Stonefield's Proposal To Amende Rule 801(d)

Last week, I posted an entry about Sam Stonefield's Rule 801(d)’s Oxymoronic “Not Hearsay” Classification: The Untold Backstory and a Suggested Amendment, 2011 Fed. Cts. L. Rev. 5 (May 2011). In the article, Professor Stonefield contends that the Federal Rules of Evidence wrongfully classify statements such as admissions as "not hearsay" under Federal Rule of Evidence 801(d). And, while he acknowledges that this imprecision has not led to any real substantive errors in cases across the country, he puts forth a few compelling proposals for amending Rule 801(d).

As I have noted, the Federal Rules of Evidence are currently being restyled, and Professor Stonefield sent his article to the Advisory Committee on Evidence Rules as a formal proposal to amend the Federal Rules of Evidence. As I noted in my previous post, Professor Stonefield told me that 

The article was presented to and discussed by the Advisory Committee on Evidence Rules at their October, 2010 meeting.  The Committee subsequently wrote that, while "agree[ing] in principle with [my] proposal" that Rule 801(d) should be amended and admissions and prior statements treated as separate hearsay exceptions, the members felt that the rule “was not a source of ambiguity or confusion and was being applied properly in the courts. Moreover, the members felt that the time and expense of making and incorporating a rule amendment outweighed the need for changing the rule at this time.” 

Daniel Capra, the Reporter for the Advisory Committee on Evidence Rules, has now sent me a copy of the memorandum that he sent to the Committee in response to Professor Stonefield's work, and from it, you can see the excellent work done by the Committee, which I have previously highlighted.

In the memorandum (Download Capra Letter), Professor Capra notes that

Professor Stonefield proposes that Rule 801(d) statements be redesignated as hearsay but subject to an exception. He concedes that his proposal will not change any evidentiary result as a practical matter, because there is no practical difference between an exception to the hearsay rule and an exemption from that rule. If a statement fits either an exemption or an exception, it is not excluded by the hearsay rule, and it can be considered as substantive evidence if it is not excluded by any other Rule (e.g. Rule 403). Professor Stonefield also concedes that courts have had no problem with the anomalous designation of Rule 801(d) statements as not hearsay — they know it makes no difference and so don’t get hung up on any distinction between "not hearsay" and "hearsay subject to an exception."

Professor Capra then presents the question to the Committee as follows:

whether the costs of an amendment — disruption of settled expectations, necessary adjustment, possible inadvertent changes, etc. — is outweighed by the benefit of a more logical approach to the hearsay rule and its exceptions. In the end, the major argument against the proposal is that the existing Rule 801(d), however logically flawed and perhaps confusing to novices, has not appeared to result in any practical problems of application. 

Finally, Professor Capra details Professor Stonefield's three proposals an provides extensive comments on each. The three proposals are:

•The Minimalist Approach: Just redesignating Rule 801(d) so that they are now designated as exceptions to the rule against hearsay rather than "not hearsay;"

•The Minimalist Plus Approach: Redisgnating Rule 801(d) and moving Federal Rule of Evidence 803(5), the hearsay exception for past recollection recorded, to Rule 801(d) to create Rule 801(d)(1)(D); and

•"Thorough-Going" Alternative: Housing each category of hearsay exception under a separate rule number (prior witness statements would be under Rule 803, admissions would be under Rule 804, the former Rule 803 hearsay exceptions would be under Rule 805, the former Rule 804 hearsay exceptions would be under Rule 806)). 

I will leave it to readers to check out Professor Capra's full memorandum (Download Capra Letter) to see his complete analyses of each of these proposals, which take up ten pages. He highlights a lot of interesting issues with regard to the proposals, such as the effect that they would have on (1) Federal Rule of Evidence 806 (impeaching a "hearsay" declarant); (2) Federal Rule of Evidence 807 (the residual hearsay exception); and (3) searches of and citations to prior case law.

In the end, of course, the Committee decided not to amend Federal Rule of Evidence 801(d) such that the statements that it covers are now exceptions to the rule against hearsay. And I think this makes sense. As Professor Stonefield acknowledges, the current version of Rule 801(d) hasn't wreaked havoc in courtrooms across the country, so why open Pandora's Box? I think that Professor Stonefield, the Committee, and I all agree that Federal Rule of Evidence 801(d) could use a good tuneup, but once you take something apart, you never quite know how it will function when you put it back together.

-CM