EvidenceProf Blog

Forfeit Victory: Florida Adds Forfeiture By Wrongdoing Exception That Mirrors Federal Rule

Federal Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for

A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

Until yesterday, Florida did not have a similar forfeiture by wrongdoing exception, but that all changed with the stroke of the pen by Governor Rick Scott.

As reported by the Bradenton Herald, yesterday Rick Scott signed House Bill 701 into law. House Bill 701 adds language to the Florida Code of Evidence that is identical to Federal Rule of Evidence 804(b)(6), as is made clear by the summary analysis:

Currently, a hearsay statement is not admissible in court, unless an exception applies. Under Florida law, exceptions fall into two categories: those where the availability of the person who made the statement is irrelevant, and those where the person who made the statement must be unavailable to testify in court.

The Federal Rules of Evidence provide an exception to the hearsay rule when the unavailability of a witness is caused by the opposing party‟s wrongful conduct. Florida law does not provide such an exception.

The bill creates a “forfeiture by wrongdoing” hearsay exception. The exception mirrors the language in the Federal Rules of Evidence. Under the exception, a hearsay statement would be admissible if the party against whom it is offered engaged in wrongdoing that caused the person who made the statement to be unavailable to testify.

The bill does not appear to have a fiscal impact on state or local governments.

The bill is effective upon becoming law.

-CM

Little Jerry Was Born To Cockfight: 4th Circuit Finds Juror Wikipedia Research Invalidated Cockfighting Conviction

A defendant and co-defendants are convicted of violating, and conspiring to violate, the animal fighting prohibition of the Animal Welfare Act, 7 U.S.C. § 2156(a), resulting from their participation in "gamefowl derbies," otherwise known as "cockfighting." the Act prohibits, among other things, "sponsor[ing] or exhibit[ing] an animal in an animal fighting venture." If a juror looks up the word "sponsor" on Wikipedia, prints out the relevant page, and brings the page to the jury deliberation room, is there a rebuttable presumption of prejudice? According to the recent opinion of the Fourth Circuit in United States v. Lawson, 2012 WL 1372172 (4th Cir. 2012), the answer is "yes."

In Lawson, the facts were as stated above. The Fourth Circuit found that the issue was governed by Remmer v. United States, 347 U.S. 227 (1954), 

the Supreme Court held that a rebuttable presumption of prejudice arose from a third party's unauthorized communication with a juror during the trial....In announcing this rule, the Court stated that "any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial."...However, the Court cautioned that this "presumption of prejudice" did not establish a per se requirement of a new trial....The Court stated that "[t]he presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant."

According to the court, several circuits have abandoned this Remmer presumption, such as the  Fifth, Sixth, Eighth, and District of Columbia Circuits. But the court noted that it continues to apply the presumption to external influences on jurors, along with the Second, Seventh, Ninth, Tenth, and Eleventh Circuits.

Of course, that left the question of whether the Remmer presumption applies to a juror's use of a dictionary definition during deliberations, and the Fourth Circuit noted "that our sister circuits also are divided on this question." The Fourth Circuit, however, 

conclude[d] this presumption likewise is applicable when a juror uses a dictionary or similar resource to research the definition of a material word or term at issue in a pending case. In reaching this conclusion, we observe that many of the concerns that arise when a juror discusses a case with a third party...are likewise concerns inherent in a juror's unauthorized use of a dictionary during jury deliberations. In both instances, a defendant's Sixth Amendment right to a fair trial is at issue, and the sanctity of the jury and its deliberations have been threatened. In both instances, an extrinsic influence has been injected into the trial, the content of which is beyond the trial court's ability to control. And, in both instances, the procedural and substantive protections that the law affords to the judicial process are limited.

This left the question of whether the government rebutted the presumption of prejudice, and the Fourth Circuit considered five factors in resolving that issue:

(1) The importance of the word or phrase being defined to the resolution of the case.

(2) The extent to which the dictionary definition differs from the jury instructions or from the proper legal definition.

(3) The extent to which the jury discussed and emphasized the definition.

(4) The strength of the evidence and whether the jury had difficulty reaching a verdict prior to introduction of the dictionary definition.

(5) Any other factors that relate to a determination of prejudice.

Briefly, here is what the court found on each factor:

First

"Juror 177 used Wikipedia to research the term 'sponsor,' which is an element of the animal fighting offenses for which Lawson was on trial....Indeed, the district court agreed that the term 'sponsor' was important to the case for this reason."

Second

"As the district court recognized, 'definitions on Wikipedia are subject to change by users, and the definition at issue (of 'sponsor') had, according to Court's Ex. 1, been changed between the time Juror 177 consulted this external source and when he repeated the same steps to produce Court's Ex. 1.' Accordingly, the district court properly 'assume[d] that the definition of ‘sponsor’ shown in Court's Ex. 1 is different in at least some respects from what Juror 177 obtained and consulted during deliberations.'...

Thus, it is apparent that Juror 177's use of Wikipedia, under the circumstances of this case, makes meaningful analysis of the second...factor impossible. Accordingly, because the Remmer rebuttable presumption places the evidentiary burden on the government, we must conclude that this factor weighs in favor of Lawson."

Third

"The district court noted from Juror 177's testimony that he gave little emphasis to the definition in deciding the case." But, the court also noted "that several other material aspects of Juror 177's testimony were contradicted by the testimony of the other members of the jury. Therefore, in view of the government's burden, we conclude with regard to the third...factor that the extent to which Juror 177 was influenced by Wikipedia remains uncertain."

Fourth 

The court found that "we cannot say that the jury had difficulty reaching a verdict prior to Juror 177's improper research." 

Fifth

"Given the open-access nature of Wikipedia, the danger in relying on a Wikipedia entry is obvious and real. As the 'About Wikipedia' material aptly observes, '[a]llowing anyone to edit Wikipedia means that it is more easily vandalized or susceptible to unchecked information.'...Further, Wikipedia aptly recognizes that it 'is written largely by amateurs.'"

After considering all of these factors, the Fourth Circuit "conclude[d] as a matter of law that the government...failed to rebut the Remmer presumption of prejudice."

-CM

Leading Authority: Court Of Appeals Of Mississippi Finds No Error With Trial Judge Allowing Some Leading ?s

Like its federal counterpart, Mississippi Rule of Evidence 611(c) provides that

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

As the language of Rule 611(c) makes clear, parties calling (1) a hostile witness, (2) an adverse party, or a (3) witness identified with an adverse party may use leading questions. But as the language of Rule 611(c) implies and the recent opinion of the Court of Appeals of Mississippi in James v. State, 2012 WL 1399120 (Miss.App. 2012), makes clear, the court has the discretion to allow leading questions even for non-adverse witnesses called by a party.

In James, Johnny James Jr. was convicted of statutory rape. After he was convicted, James appealed, claiming, inter alia, that "the trial judge abused his discretion by overruling James's objection to the State's leading questions to two of its witnesses without first having the witnesses declared hostile or adverse."

In response, the Court of Appeals of Mississippi noted the language of Rule 611(c) but then cited Osborne v. State, 54 So.3d 841, 845(16) (Miss.2011), for the proposition that

[T]he decision to allow a party to ask leading questions during direct examination rests within the sound discretion of the trial court. In other words, a trial court has general discretion to allow leading questions if needed for the development of a witness's testimony. The use of leading questions is not ground for reversal unless the trial court abused its discretion, and the decision resulted in "substantial" injury to the appealing party. 

Finding that no such "substantial" injury occurred in the case before it based upon a few leading questions by the prosecution, the court affirmed James' conviction.

-CM

Nonconfrontational: Florida Appellate Court Finds Different Tests For Hearsay And Confrontation Clause Terms

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. Like Federal Rule of Evidence 804(a), section 90.804(1) of the Florida Statutes sets forth five situations in which a hearsay declarant is "unavailable" for hearsay purposes. And, like Federal Rule of Evidence 804(b)(1), section 90.804(2)(a) provides an exception to the rule against hearsay for

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

So, do we determine if a declarant "unavailable" for Confrontation Clause purposes by using the hearsay test, and do we determine whether the defendant was previously able to cross-examine the declarant by using the "former testimony" test? According to the recent opinion of the District Court of Appeal of Florida, Fourth District, in Petit v. State, 2012 WL 1314153 (Fla.App. 4 Dist. 2012).

In  Petit, Lukens Petit was convicted of one count of felony murder, three counts of attempted felony murder, and one count of armed robbery. After he was convicted, Petit appealed, claiming, inter alia, that the trial court allowed by allowing for the admission of testimony from a bond hearing by Edder Joseph, one of Petit's alleged robbery victims. According to Petit, the prosecution failed to prove Joseph's unavailabilty and that he had an adequate opportunity to cross-examine Joseph at the bond hearing.

With regard to unavailability, Petit claimed that the prosecution failed to prove that Joseph was "unavailable" under any of the five definitions laid out in section 90.804(1). The court disagreed, finding that

Section 90.804(1)...defines "unavailability" of the declarant for the purpose of the hearsay exceptions. But the Florida Supreme Court has defined unavailability for Confrontation Clause purposes much more broadly than section 90.804(1): "In order for a witness to be unavailable for confrontation purposes, the State must make a good faith showing of attempting to secure the witness. This includes going to reasonable lengths to procure the witness."...Therefore, the only requirement here is that the state made a good faith effort to procure Joseph as a witness for the instant trial.

Similarly, with regard to cross-examination, Petit claimed that the prosecution failed that he had an opportunity and similar motive to develop the testimony of Joseph at the bind hearing as is required by section 90.804(2)(a). The court again disagreed, finding that Petit's argument was

a mischaracterization of the holding in Crawford. The Supreme Court has stated the cross-examination requirement in very general terms: "Our cases have thus remained faithful to the Framers' understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine."...Crawford does not require similarity of motive in the previous judicial proceeding or mention a "meaningful" opportunity for cross-examination.

-CM

Liar, Liar: Polygraph Evidence, The Jury As Lie Detector, Cross-Racial IDs & Quantifying Probable Cause & Reasonable Doubt

In United States v. Scheffer, 523 U.S. 303 (1998), 

Air Force airman Edward Scheffer volunteered in March 1992 to work as an informant on drug investigations, which rendered him subject to drug testing and polygraph examinations. Soon after taking a drug test that April, but before the results were known, Scheffer agreed to take a polygraph test, which “indicated no deception” when he denied using drugs since enlisting. If Scheffer was lying, the drug test was not, as it revealed the presence of methamphetamine.

During his ensuing court-martial on charges of methamphetamine use, Scheffer raised an “innocent ingestion” theory, but the military judge precluded him from introducing the polygraph evidence in support of this claim pursuant to Military Rule of Evidence 707, which stated in relevant part: “(a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination shall not be admitted into evidence.”

In finding that the application of Rule 707 to the polygraph results did not violate Scheffer's right to present a defense, Justice Thomas, writing for the Court, found that "there is simply no way to know in a particular case whether a polygraph examiner's conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams." Accordingly, the Court held that Rule 707 rationally and proportionally advanced the government's "legitimate interest in ensuring that reliable evidence is presented to the trier of fact in a criminal trial."

It was another portion of Justice Thomas' opinion that got the most ink even though this portion of the opinion was not joined by a majority of the Court. In this portion of the opinion, Justice Thomas averred that the problem with polygraph evidence is that "[a] fundamental premise of our criminal trial system is that 'the jury is the lie detector.'" And, according to Justice Thomas,

Jurisdictions, in promulgating rules of evidence, may legitimately be concerned about the risk that juries will give excessive weight to the opinions of a polygrapher, clothed as they are in scientific expertise and at times offering, as in respondent's case, a conclusion about the ultimate issue in the trial. Such jurisdictions may legitimately determine that the aura of infallibility attending polygraph evidence can lead jurors to abandon their duty to assess credibility and guilt. Those jurisdictions may also take into account the fact that a judge cannot determine, when ruling on a motion to admit polygraph evidence, whether a particular polygraph expert is likely to influence the jury unduly.

Before my recent blog exchange with Erica Goldberg (see here, here, and here), I never understood why a majority of the Court did not join in this portion of Justice Thomas' opinion. Now, I think I do, and this understanding further informs the issue of whether courts should quantify probable cause and reasonable doubt.

The answer for why the majority of Justices did not join the "jury is lie detector" portion of Justice Thomas' opinion seems to be the collateral effect that this portion of the opinion could have on polygraph evidence in bench trials. If the problem is that jurors could be taken, hook, line, and sinker by polygraph evidence, doesn't that mean that defendants should be able to present polygraph evidence in bench trials because judges aren't subject to the same infirmities as jurors? After all, that is the reasoning that courts use in finding that the Bruton doctrine doesn't apply in bench trials.

And, if we strip away the jury argument, all we are left with in Scheffer is the "polygraphs aren't perfect" argument. But how imperfect? In Bennett v. City of Grand Prarie, Tex., 883 F.2d 400, 405 (5th Cir. 1989), the Fifth Circuit found that "Polygraph exams, by most accounts, correctly detect truth or deception 80 to 90 percent of the time." Bennett, however, was not a case in which the court was deciding whether to admit polygraph evidence at trial; it was a case in which the court was trying to determine whether a magistrate properly considered polygraph evidence in making a probable cause determination.

And, like many other courts, the Fifth Circuit concluded that the magistrate's reliance of the polygraph evidence was proper, concluding that

The fear that a jury may overestimate the probative value of such evidence when considering an individual's guilt or innocence-the factor that led some courts to preclude and other courts to limit the use of polygraph exams as evidence at trial-is absent when a magistrate relies on such an exam to determine whether there is probable cause to issue an arrest warrant. Unlike a lay jury, a magistrate possesses legal expertise; when determining probable cause, he is unlikely to be intimidated by claims of scientific authority into assigning an inappropriate evidentiary value to a polygraph report or to rely excessively on it.

Okay, but then why not allow defendants to present polygraph evidence in bench trials? This takes me back to Professor Goldberg's most recent post, and, specifically, one of the comments she made in response to a question by Orin Kerr: 

At the highest level of generality, I believe that quantifying probable cause will add integrity and accountability to the jurisprudence. It’s hard for us citizens to determine if judges are making fair decisions about probable cause if we don’t even know how much suspicion is required. Proof beyond a reasonable doubt is less in need of quantification because it’s so far out there on the spectrum of proof. I think people intuitively understand what a reasonable doubt is because it is such an extremely high standard, but the probable cause decisions are all over the place. This makes them elusive to students, scholars, and citizens, who then lose faith in the decisions.

Below that, quantifying probable cause will give courts some understanding of how to determine if probable cause exists. Sure, there is precedent and rules for judges to apply. For example, running from the police is not enough on its own to constitute probable cause, but running plus some other suspicious behavior is sufficient. However, these rules are almost beside the point because they say nothing about what the actual standard is.

Below that, quantifying probable cause will give police something more standardized to shoot for, besides untethered rules, when making probable cause determinations.

Finally, because so much evidence has a quantitative component (DNA evidence, drug dog alerts, fingerprint matching), we can use numbers to assess the probative value of this evidence. Until now, the presumption has been that a positive alert automatically gives rise to probable cause, but we cannot know that unless we grapple with the numbers. This, in turn, will make quantifying probable cause inevitable, in situations where all of the suspicious evidence has numerical error rates (false DNA matches, for example).

Now, this isn't the type of quantification that Goldberg is talking about, but let's say that we were really trying to numerically quantify probable cause and reasonable doubt. If I'm just spitballing, I might put probable cause at about 33%. If there's about a 1/3 chance that, for example, the fruits of a bank robbery are at a suspect's house, a judge should issue a search warrant for the search of that house. And, again, if I'm spitballing, I might put reasonable doubt at 10%. In other words, if a jury or a judge in a bench trial thinks that there is a 10% chance that the defendant did not commit the crime(s) charge, the verdict should be "not guilty."

Now, you might quibble with the percentages that I have attributed to probable cause and reasonable doubt, but I doubt that many people would think that the percentage of reasonable doubt required for an acquittal should be higher than the percentage of probable cause required to authorize a search. In fact, if you think about it, reasonable doubt is more analogous to "reasonable suspicion" than it is to "probable cause." For instance, in the Terry context, an officer can conduct a stop if he has reasonable suspicion, supported by specific and articulable facts, that criminal activity my be afoot. I think that most would agree that if a defendant could present enough evidence at trial pointing to an alternate suspect such that a Terry stop of that alternate suspect would be warranted, the defendant would have created reasonable doubt. And, of course, establishing reasonable suspicion requires a lesser showing than establishing reasonable doubt.

So, back to Bennett and quantifying probable cause and reasonable doubt. Here's why I think it might be valuable to quantify both in addition to quantifying different types of evidence admitted and excluded at trial. Without quantifying either standard, we can look at Bennett and Scheffer and think that both make intutive sense. Bennett makes sense because if polygraphs are 80-90% reliable, of course they are reliable enough for magistrates to consider them in deciding whether to issue warrants. Of course, we also need to consider the fact that 80 or 90% reliability doesn't mean that it is 80% or 90% likely that police will find, say, evidence of the bank robbery at the suspect's home. Even if the suspect fails a polygraph question asking whether he robbed a bank, that doesn't mean that evidence of that bank robbery was ever at his house or that it is still there. Meanwhile, Scheffer makes sense because criminal trials require guilt beyond a reasonable doubt, and the government has a legitimate interest in only allowing the factfinder to consider reliable evidence in making the decision to convict or exonerate

But when we dig into the numbers, these intuitions collapse. What is the magistrate in Bennett actually doing? He's trying to decide whether it is 33% (or whatever percentage) likely that evidence of the bank robbery is at the suspect's house. And what is the court-martial in Scheffer actually doing? It is trying to decide whether it is 10% (or whatever percentage) likely that the defendant did not commit the crime charged. So, how is it that we allow the magistrate to consider polygraph evidence in deciding whether to issue a warrant while we don't allow the court-martial to consider the polygraph evidence in deciding whether there is reasonable doubt given these percentages? And keep in mind that, unlike in the probable cause context, there is likely to be a perfect correlation between polygraph accuracy and actual innocence. In other words, if the polygraph is 85% accurate in determining that Scheffer honestly didn't know that he ingested drugs, then there is an 85% chance that he did not know that he ingested drugs.

Of course, Justice Thomas' answer is that the court-martial in Scheffer and a jury in criminal court could be unduly swayed by polygraph evidence. But what about in a bench trial? "The federal government, especially its defense and intelligence arms, uses polygraph testing tens of thousands of times a year in screening prospective and current employees for espionage." And yet, you're telling me that a judge in a criminal trial shouldn't be allowed to use polygraph evidence to determine whether there is reasonable doubt as to whether the defendant committed the crime charged?

So, what evidence can jurors consider? Well, for one, they can consider eyewitness testimony. And how accurate is eyewitness testimony? Well, studies vary, but, according to an expert in Commonwealth v. Alston, 1999 WL 1204002 (Mass.Super. 1999), it is 75%. And what about cross-racial identifications? According to the same expert, if the eyewitness has a history of interacting with people of other races, at best, the accuracy rate is 55%. If not, the number drops. It is thus not surprising that "[a]mong the first 200 DNA-based exonerations, almost all involved 'stranger' misidentifications, and nearly 48% of the misidentifications were made by a witness of a different race than the suspect." Cynthia E. Jones, The Right Remedy for the Wrongly Convicted: Judicial Sanctions for Destruction of DNA Evidence, 77 Fordham L. Rev. 2893, 2930 (2009).

And yet, despite these percentages, we allow eyewitness identifications and cross-racial eyewitness identifications as evidence to prove guilt beyond a reasonable doubt while we preclude polygraph evidence to prove reasonable doubt. Indeed, some courts even preclude defendants from presenting expert testimony on the inaccuracy of cross-racial identifications because, you guessed it, it would usurp the role of the jury as lie detector. Well, guess what,

Although the psychological research has not focused on cross-racial lie detection or remorse detection per se, there is some evidence that cross-cultural lie detection is less accurate, and there are reasons to think that the same phenomenon would be observed in cross-racial settings. Michael M. O'Hear, Appellate Review of Sentences: Reconsidering Deference, 51 Wm. & Mary L. Rev. 2123, 2147 (2010).

The point of all of this is that there is a good argument for quanification. Quantifying probable cause. Quantifying reasonable doubt. Quantifying the accuracy of polygraphs. Quantifying the accuracy of cross-racial identification. Quantifying the accuracy of excited utterances. Without quantification, a judge relying on a polygraph to find probable cause while another judge cannot rely on a polygraph to find reasonable doubt might make sense. But when we dig into the numbers, it does not.

-CM

Reelin' In The Years: 11th Circuit Badly Botches Rule 609(b) Analysis, Bypassing "Confinement" Issue

Federal Rule of Evidence 609(b) provides that

This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

If you want to find an especially terrible analysis of Rule 609(b), you need to look no further than the recent opinion of the Eleventh Circuit in United States v. Colon, 2012 WL 1368162 (11th Cir. 2012). Even worse, that terrible analysis meant that the Elevent Circuit sidestepped the most interesting issue in the case.

In Colon, Jose L. Colon, Robyn L. Colon, and Carlos Cano appealed their convictions for conspiracy to commit bank fraud and substantive bank fraud. One of the grounds for Carlos' appeal was that the district court abused its discretion by allowing the government to impeach his testimony with his 12–year–old conviction for writing bad checks.

Carlos' conviction was in 1998, 12 years before trial, and that conviction "carried a ten-year suspended sentence that lasted until 2008." Looking at Federal Rule of Evidence 609(b), we can see the question that this sentence created. If the suspended sentence did not constitute "confinement," Carlos' conviction was 12 years-old. If that suspended sentence did constitute confinement, Carlos' conviction was 2 year-old and not subject to Rule 609(b). And, as the Eleventh Circuit noted, other circuits are split on the issue:

At least one circuit has held that a period of probation or parole constitutes "confinement" under Rule 609(b). See United States v. Gaines, 105 F. App'x 682, 695 (6th Cir.2004), vacated on other grounds by Gaines v. United States, 543 U.S. 1114, 125 S.Ct. 1090 (2005). However, other circuits have reached the opposite result. See United States v. Rogers, 542 F.3d 197, 198 (7th Cir.2008); United States v. Daniel, 957 F.2d 162, 168 (5th Cir.1992) (per curiam).

And, according to the court, it had never decided this issue. But the court also found that "this case does not require us to do so, because Carlos' 1998 conviction was relevant, probative, and not unfairly prejudicial." Instead, the court held that

In determining whether to admit a conviction under Rule 609(b), we consider the impeachment value of the prior conviction, the passage of time and the witness's conduct since the conviction, the similarity between the convicted conduct and the charged crime, the importance of the witness's testimony, and the centrality of the witness's credibility....In Carlos's case, he put his criminal intent in issue, testifying that he did not intend to participate in illegal activity. Carlos's bad check conviction involved a similar mens rea, intent to defraud, as the bank fraud and conspiracy charges. Furthermore, the convicted conduct and the charged bank fraud offense both involved Carlos's signature on documents by which he misrepresented his ability to meet his financial obligations. Moreover, the Government had a strong case against Carlos for bank fraud, but only circumstantial evidence of his criminal intent. For all of these reasons, the Government's admission of the prior conviction was necessary to impeach Carlos and was not unfairly prejudicial.

Wrong, wrong, wrong. Well, okay, the court was correct that the prior conviction had high impeachment value. The crime of writing bad checks is a crime of dishonesty, meaning that the conviction had high probative value because it tended to show that Carlos could be untrustworthy as a witness. But the similarity between the crime underlying the prior conviction and the crime charged means that the prior conviction was unfairly prejudicial. Why?

Well, the jury could not use the prior conviction to prove Carlos' propensity to misrepresent his ability to meet financial obligations and his likely conformity with that propensity at the time of the crime charged. And that's the point of the court considering the similarity between the convicted conduct and the charged crime: The more similar the prior crime to the present crime, the more likely that the jury will misuse prior conviction as propensity character evidence.

That means that while the court properly found that the prior conviction had high probative value, it also should have found that the prior conviction was highly unfairly prejudicial. And what that means is that its probative value almost certainly did not substantially outweigh the danger of unfair prejudice. And that means that the very issue that the court skirted -- whether a suspended sentence is "confinement" -- should have been the central issue in the case. Instead, the Eleventh Circuit botched the analysis.

-CM

Virginia To Codify Its Rules Of Evidence Effective July 1, 2012

As reported by Brad Zinn,

Sometimes the wheels of justice, or in this case the codes that oil those wheels, can move incredibly slow in Virginia.

But after 18 years, come July 1 the state will have codified rules of evidence that will bring Virginia's courts in line with 48 other states that already have rules of evidence in place, leaving Massachusetts as the last remaining state not to do so.

I will have more about this codification this week. Here is a link where you can access the new Virginia Rules of Evidence.

-CM

Diamond Dogs, Take 2: Etan Patz, Florida v. Harris & Quantifying Probable Cause

Cadaver dogs are back in the news with the revelation that a cadaver-sniffing dog detected the odor of human remains in a basement near the SoHo home of Etan Patz, a 6-year-old who disappeared in 1979 en route to a New York City bus stop. The Patz case again raises the issue of the reliability od cadaver dogs, which I previously addressed on this blog (here and here) during the Casey Anthony trial. Two problems with cadaver dogs are that:

(1) Sometimes they get waylaid by any decaying organic matter (e.g. a rotten log), and similar chemical signatures make it impossible for them to distinguish between humans and pigs. Thus, handlers are taught always to be on the alert for false positives; and

(2) No one knows exactly what dogs are smelling when they indicate the possible presence of remains.

Of course, the Patz case raises the separate question of whether dogs can really smell 33 year-old remains. According to an article,

Researchers from the University of Alabama, hoping to zero in on how long the scent of death might linger at a crime scene, designed a test for the state police’s cadaver dogs. A single human vertebra, more than 30 years old, was buried 12 inches deep. The dogs were let loose across a 300-by-150-foot plot, and several succeeded in sniffing out the dry bone fragment. So it’s certainly possible that the canines recruited for Etan Patz’s search could detect parts of a 33-year-old body hidden in the basement on Prince Street. A variety of factors, however, mediate the strength of the death odor and how quickly it dissipates. Temperature, humidity, the softness or hardness of the ground, and the amount of degrading matter all play a role, as does the physiology of the dog. (A heavily panting pooch can’t scent very well.)  

What this reveals is that there is at least some research out there regarding the reliability of cadaver dogs, and yet, I haven't seen any evidence of courts really using this research to create a rigorous and scientifically valid test for when cadaver-sniffing dog detection creates probable cause or is admissible at trial. Indeed, in the case on the issue that I previously cited, the court tried to retrofit the test that it applies for scent lineup dogs to cadaver dogs while acknowledging that what the two types of dogs do is very different.

All of this takes me to the point of this post, which was prompted by Erica Goldberg's guest post over at Concurring Opinions.

In it, Goldberg, a Visiting Assistant Professor at the Penn State University Dickinson School of Law, addresses the Supreme Court's grant of certiorari in Florida v. Harris, where the issue is: "Whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle." In the post, Goldberg

Courts consistently and expressly eschew technical conceptions of probable cause in order to provide police officers with flexibility to exercise their judgment in unfolding situations. In addition, courts focus on whether an officer has a reasonable belief that a suspect has committed or is committing a crime. This metric allows for probable cause to be found in situations where one reasonable officer might assess an 80% likelihood that a suspect is driving drunk, for example, even if another reasonable officer might think there is only a 40% likelihood. We might be tempted to assume the courts require that a reasonable officer be able to believe a crime has been committed by greater than a 50% likelihood, but this has not been made explicit.  All officers must prove to a court assessing a vehicle search is a reasonable ground for belief of guilt.  Further, when a court is making a probable cause determination for itself in determining if a warrant should issue, it must decide only if there is a "fair probability that contraband or evidence of a crime will be found in a particular place."  What is a fair probability?

In the context of drug detection dogs, where we have actual data on reliability, assigning a numerical value to probable cause — or at least to the maximum false positive percentage upon which an officer can rely — would add much needed clarity to Fourth Amendment law. It also does not undermine police officers’ ability to use their intuition, because the event precipitating a search is not an officer’s informed judgment, but the alert from a dog.

Goldberg's post, in turn, led to a fascinating comments section in which Orin Kerr brought up his article, Why Courts Should Not Quantify Probable Cause, which, in abstract form, argues that

Probable cause is one of the fundamental concepts of Fourth Amendment law, but the Supreme Court has refused to quantify it. The Court has described probable cause as a “fair probability,” but it has declined to explain just how likely a “fair” probability might be. Does a “fair probability” mean a 50% likelihood? A 40% likelihood? And why won’t the Justices say? Are they just afraid of math?

This essay argues that courts should not quantify probable cause because quantification would produce less accurate probable cause determinations. The core problem is that information critical to probable cause is often left out of affidavits in support of warrants: Although affidavits say what techniques police tried that added to cause, they generally leave out both what the police tried that did not add to cause and what techniques the police never tried. Determining probable cause accurately often requires this information, however. By leaving probable cause unquantified, current law enables judges to use their intuition and situation-sense to recognize when missing information is likely important to assessing probable cause. Quantification would lead to less accurate probable cause determinations by disabling those intuitions, creating the false impression that the information provided in the affidavit is the only relevant information. Cognitive biases such as the representativeness heuristic and anchoring effects would allow the government to create the false impression that a low-probability event was actually a high-probability event. To ensure accurate probable cause determinations, then, probable cause should remain unquantified. The result is counter-intuitive but true: Knowing less about probable cause improves how the standard is applied.

Professor Kerr's led me to think about that other heavy hitter of American criminal law that courts have refused to quantify: guilt beyond a reasonable doubt. The position that American courts take with regard to quantifying guilt beyond a reasonable doubt was succinctly stated in McCullough v. State, 657 P.2d 1157 (Nev. 1983): "The concept of reasonable doubt is inherently qualitative. Any attempt to quantify it may impermissibly lower the prosecution's burden of proof, and is likely to confuse rather than clarify." 

The classic example of what I tell student not to do in this regard can be found in State v. Casey, 2004 405738 (Ohio App. 2 Dist. 2004), in which the prosecutor told the jury:

"All right. I like to make it kind of like a football field where you start at one end and you go to the other. If you go all the way and make a touchdown, that's like a hundred percent. That's beyond no doubt. I like to say reasonable doubt is kind of like 75 percent. Somewhere-75 and 90. Now, you're not going to hold me to going all the way for a touchdown, are you?"

I think that we can all see why such a comment would be confusing to the jury and could impermissibly lower the burden of proof (So, beyond a reasonable doubt is like kicking a field goal?). But what if the prosecutor's comments were not directed toward the jury but were instead directed toward the judge in a bench trial? 

Case law is replete with statements that different standards apply to bench trials than apply to jury trials, with judges allegedly not being subject to the same biases and weaknesses as jurors. The one that I've focused upon the most is the Bruton doctrine, which precludes the admission, at a joint jury trial of a co-defendant's confession that facially incriminates the other defendant unless the co-defendant testifies at trial. The theory here is that if Carl confesses, "Dan and I robbed the bank," the jury, upon hearing this statement at trial will use it as evidence of Dan's guilt even if given a jury instruction only to use the confession as evidence of Dan's guilt.

The cognitive bias at play here is ironic process theory, the theory that if I tell you not to think of a polar bear, you will inevitably think of a polar bear. Similarly, if I tell a juror not to use Carl's confession as evidence of Dan's guilt, inevitably he will use the confession as evidence of Dan's guilt. But, despite evidence to the contrary (such as Lee v. Illinois), courts consistently hold that the Bruton doctrine doesn't apply to bench trials because judges can compartmentalize and are not subject to ironic process theory (holdings that are likely caused by the overestimation effect).

We don't quantify guilt beyond a reasonable doubt for jurors because such quantification could confuse jurors and impermissibly lower the burden of proof for a prosecutor. But it is a judge, not a jury that determines whether an alert by a narcotics detection dog creates probable cause. Should were be worried that a judge rather than a juror would be confused by quantification of probable cause and that such quantification would impermissibly lower the burden of proof for the prosecutor making arguments to the judge. Should we, as Professor Kerr argues, be concerned about the cognitive biases that quantification would create for judges?

The answer to these questions might very well be "yes," and they might very well be "no," but if they are "yes," shouldn't they also be "yes" in the Bruton context? I have no problem trusting judges more than jurors, and I also have no problem recognizing that judges are subject to the same biases and fallacies that plague jurors and us all. But shouldn't courts be consistent in answering these questions?

-CM