EvidenceProf Blog

Getting Exposed: Northern District Of Oklahoma Deems Public Exposure Conviction Inadmissible In Arson Trial

Federal Rule of Evidence 609(a)(1)(A) provides that

for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

In turn, Federal Rule of Evidence 403 provides that

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

So, let's say that a defendant is charged with arson and that a witness for the prosecution testifies against him. But let's say that this is no ordinary witness for the prosecution. Instead, let's say that the defendant labels the witness as an alternate suspect with an obvious motive to pin the crime on the defendant. If that witness has a prior conviction for felony indecent exposure, should the defendant be able to use that conviction to impeach him? According to the recent opinion of the United States District Court for the Northern District of Oklahoma in United States v. Perryman, 2012 WL 1536745 (N.D.Okla. 2012), the answer is "no." I'm not sure that I agree.

In Perryman, the facts were as stated above. Specifically, the defendant claimed that the witness had an altercation with him shortly prior to the arson, was heard making threats against him, and made a series of potentially incriminating statements to arson investigators. Accordingly, in seeking to impeach the witness, the defendant claimed that the witness was "not merely an ordinary witness in this case," but instead that his "credibility [wa]s paramount."

The court disagreed, finding that

a prior conviction for indecent exposure has very little, if any, probative value as to an individual's credibility. However, there is a substantial danger of unfair prejudice because the jury may improperly presume that [the witness] is a morally culpable individual or that he has a propensity to commit crimes. The fact that [the witness] may be an important witness and that his credibility may be crucial to defendant's case does not make a conviction for indecent exposure any more probative of that credibility.

Huh? I will admit that an indecent exposure conviction has very little bearing on witness credibility, but I would also argue that it has very little bearing on whether the witness committed arson. Rule 403 deems evidence admissible as long as its probative value is not substantially outweighed by the danger of unfair prejudice. This means that the court should have deemed the conviction admissible unless it found that its bearing on witness credibility was substantially outweighed by the danger that the jury would use the evidence to assume that the witness committed the arson. To me, that seems like a slam dunk for admissibility, or at least a layup.

Of course, in a typical Rule 609(a)(1)(A) case, the court considers 5 factors: (1) how much bearing the prior conviction has on witness honesty; (2) the remoteness of the prior conviction; (3) the similarity between the past conviction and the present crime; (4) the importance of the witness' testimony; and (5) the centrality of the credibility issue. In Perryman, the defendant claimed that this 5th factor should be dispositive. The court, though, found that this test deals "with the admissibility of a defendant'stestimony under Rule 609(a)(1)(B), not with the admissibility of a witness' testimony under Rule 609(a)(1)(A)." Thus, the court found that this test had "no relevance to whether [the] prior conviction [wa]s admissible."

Really? Basically every other opinion I have seen on the issue holds that the 5 factor test minus the 4th factor (which deals with whether a defendant will choose not to testify) applies to other witnesses. And even if the court chose not to apply this test, how can it say that the centrality of a witness' credibility is not an important factor in deciding the admissibility of his prior convictions? According to the court, it is no more important for a defendant to impeach the prosecution's one eyewitness than it is for him to impeach a character witness with no knowledge of the crime charged. That simply makes no sense.

-CM

It's My Space, That's Why They Call It MySpace: Court of Appeals of Texas Finds MySpace Comment Covered by Rape Shield Rule

A defendant is charged with various sexual crimes against the alleged victim, a 15 year-old. To support his defense, the defendant seeks to introduce into evidence a comment that the alleged victim made on her MySpace page, where she referred to herself as a "bitch/whore." Should the court admit or exclude this evidence? That was the question confronted by the Court of Appeals of Texas, Waco, in its recent opinion in Dale v. State, 2012 WL 1382446 (Tex.App.-Waco 2012).

In Dale, the facts were as stated above, with the Court of Appeals of Texas, Waco, having to decide whether the proffered evidence was covered by Texas Rule of Evidence 412, Texas' rape shield rule. The specific comment on the alleged victim's MySpace page was, "Thanks for turning everybody against me...'cause I'm a bitch/whore." Texas Rule of Evidence 412(a) provides that

In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.

Meanwhile, Texas Rule of Evidence 412(b) provides that, subject to certain exceptions,

In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim's past sexual behavior is also not admissible....

The Court of Appeals of Texas, Waco, addressed the issue under Rule 412(b), initially noting that

“Sexual behavior” is not defined in the rules of evidence....Nevertheless, this Court noted that, prior to the codification of rule 412, the Court of Criminal Appeals reviewed the definition of "sexual conduct" in...the precursor to rule 412....The Court found "sexual" to mean "of or pertaining to sex; sexual matters."

The court then found that

In the present case, [the alleged victim] referred to herself as a "bitch/whore" on her MySpace page. The plain and ordinary meaning of the term "whore" is "a woman who engages in sexual acts for money." MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 1351 (10th ed.1993). On the other hand, the plain and ordinary meaning of the term "bitch" is "a lewd or immoral woman."...We believe that these terms are commonly used to reference "sexual matters," which would violate not only the agreed-upon motion in limine between the parties in this case but also rule 412.

Finally, the court found that none of the exceptions to Rule 412(b) were applicable in the case before it and thus found that the trial court properly excluded the subject evidence.

I generally agree with the court's conclusion but wonder why the court didn't simply treat the evidence as Rule 412(a) evidence rather than Rule 412(b) evidence, which is subject to possible exceptions. Plainly, the MySpace evidence didn't reference any specific instances of the alleged victim's prior sexual behavior but instead contained the opinion, either by the alleged victim or others, that the alleged victim was a bitch/whore. Therefore, the evidence was Rule 412(a) evidence.

-CM

 

Joss Whedon, The Avengers, Buffy The Vampire Slayer, Eli Stone, Reluctant Heroes & The Rule Against Hearsay

Joss Whedon's "The Avengers" will debut at the U.S. box office tonight after cleaning up overseas and with the critics. Although I had previously experienced some version of Whedon's works before 1997 (for instance, he wrote for "Roseanne," was one of the screenwriters on "Toy Story," and did some rewrites on "Waterworld"), I wasn't really aware of who he was until the summer of 1997. I was home for the summer for college and had just come back from a daily 6 mile run to the 7-Eleven and back and was toggling through the channels on the TV. I came upon the WB Network, a network I had never even heard of before. Coming on in a few minutes was the repeat of the premiere of the TV show, "Buffy the Vampire Slayer." 

I remembered having watched the movie version from a few years back, which was an enjoyable enough trifle. The two things that I most remember from the movie were

-(1) a character talking about making a sign for an environmentally themed school dance with the slogan, "Don't tread on me" over a picture of the earth. Buffy's response: "How do you not tread on the earth. I mean, you kind of have to;" and

-(2) Paul Reubens' death scene:

 

Whedon wrote the screenplay for the movie, but the buzz was that it was bastardized and that the TV show would be more in line with what he intended. A few minutes later, after a Michigan J. Frog intro, I watched the premiere, and I was hooked. Hooked on Buffy. Hooked on Whedon. I've enjoyed everything he's done: Buffy. Angel. Firefly (my wife's favorite show ever). Serenity. Dr. Horrible. Dollhouse. And now, after "The Cabin in the Woods" (which I still need to see), he's prepared to take over the world with "The Avengers."

But Whedon's signature character is and always will be Buffy Summers, who finds contuing life not only in comics but also in the opinions of courts across the country.

Probably my favorite court opinion involving Buffy is Davis v. American Broadcasting Companies, Inc., 2010 WL 2998476 (W.D.Mich. 2010), a case involving the short-lived TV series, "Eli Stone." In the case, David Davis

wrote two action-mystery books about a modern-day warrior and protector named Ely Stone. ABC had a twenty-six-episode, comedy-drama series about an attorney named Eli Stone. Mr. Davis sued ABC for copyright infringement, claiming that the television series infringed his copyrighted works.

But, according to the court,

Any similarities between Mr. Davis's novels and ABC's television series, however, are either unprotectible stock themes andscenes a faire or minimal and incidental. Additionally, the works are completely different in their overall feel and expressive elements like themes, characters, plots, sequences, pace and settings. As a matter of law, ABC's series is not substantially similar to Mr. Davis's works. The Court therefore grants ABC's motion to dismiss Mr. Davis's claims.

One of the similarities claimed by Davis was that both Eli Stone and Ely Stone were reluctant heroes, which the court found could not support a copyright infringemant claim:

Mr. Davis characterizes both Eli and Ely as being reluctant heroes, and he contends that this makes Defendants' work a violation of his copyright. It is true that both protagonists are reluctant heros who do not believe, at least initially, they are chosen or a prophet. They also both, at least initially, do not want their gifts and shrug off or reject their calling to help other people. This, too, is merely an idea, not an original element of the works that is subject to copyright protection....It is a "[c]ommon theme[ ] and idea[ ] throughout literature," particularly heroic genres....Precisely this reluctance drives many hero stories. Spiderman, Batman and Superman are a prime examples of reluctant heros. So are Luke Skywalker, the Hobbits, and Buffy the Vampire Slayer. Mere reluctance to take up the mantle of greatness cannot be grounds for copyright infringement. (emphasis added).

A more recent and more evidence-focused case is Scully v. Retirement Bd. of Beverly, 954 N.E.2d 541 (Mass.App.Ct. 2011). In Beverly, Thomas F. Scully, was convicted of two counts of possession of child pornography, [and] the Beverly retirement board...revoked his retirement allowance on the ground that the convictions involved violations of the laws applicable to Scully's office or position as director of community services at the Beverly Public Library." The basic facts were as follows:

Scully began his employment as director of community services with the library in 1986. He resigned in May, 2005, after Beverly police executed a search warrant at his home and discovered seven images of child pornography on his home computer. The police had been conducting an investigation into allegations of sexual misconduct perpetrated by Scully with a seventeen year old male, whom we shall call Matthew. The police interviewed Matthew on April 22, 2005, at which time Matthew disclosed that he had met Scully at the library when he was fifteen years old. According to Matthew, Scully approached him after discovering that he was viewing questionable material on a library computer. Scully warned Matthew to be careful, and then invited Matthew back to his home where Matthew could "safely" view such material. Matthew went to Scully's house many times. While there, he viewed adult pornography on digital video discs (DVDs) provided by Scully. As set forth in the police report, Matthew "indicated that Scully had printed pictures of naked boys from his home computer and gave them [to Matthew] to keep [and that] one of the pictures was of a child who was definitely under 18." Matthew also told the police that on one occasion Scully had "grabbed" his "butt" with one hand over his clothing while Matthew was walking upstairs.

The questionable material being viewed by Matthew at the library?

Matthew told the police that he was visiting a "Buffy the Vampire" Internet chat room where he was "cybering," an activity which Matthew described as "on-line sex."

The board's decision was contingent on Scully showing Matthew certain images of child pornography, but the only evidence that was presented in support of this allegation was Matthew's hearsay statement to the police. And, according to the Supreme Judicial Court of Massachusetts, this was insufficient to support the board's conclusion:

While the proceedings before the board were not, of course, subject to the rules of evidence, the hearing officer was obligated to rely only on "the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs."... The Supreme Judicial Court has held that hearsay is admissible in pension revocation hearings, but only if it bears the requisite "indicia of reliability."...Matthew's statement to the police, including his disclosure that Scully gave him child pornography (one printed image), was not subjected to cross-examination and, therefore, might well lack the requisite indicia of reliability to constitute "substantial evidence" before the board.

-CM

Boardwalk Empire: DNJ Uses Rule 704(b) To Deny Motion For Acquittal In Atlantic City Mortgage Fraud Scheme Case

When the prosecution wants to secure a conviction, it needs to prove that the defendant satisfied the mens rea, or mental state of the crime charged. In some cases, the prosecution will have direct evidence of the defendant's mens rea, most typically when the defendant gives a confession stating what he was thinking at the time of the crime charged. In most cases, however, the prosecution won't have such direct evidence, meaning that it can only present circumstantial evidence from which the jury can infer that the defendant possessed the requisite mens rea. One tool not available to prosecutors is expert testimony concerning the defendant's mental state, which is why the defendant's motion for a judgment of acquittal was unsuccessful in United States v. Shin, 2012 WL 1377597 (D.N.J. 2012).

In Shin, Jong Shin was charged with several crimes related to an alleged mortgage fraud scheme, orchestrated by Shin, in which Shin purchased homes in Atlantic City and recruited straw purchasers to purchase the homes at fraudulently inflated prices. At trial, at the close of the prosecution's case, Shin moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a), which provides that

After the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. If the court denies a motion for a judgment of acquittal at the close of the government's evidence, the defendant may offer evidence without having reserved the right to do so.

One of the grounds for the motion was that that the prosecution failed to meets its burden of proof in proving her mens rea of intent to defraud because it failed to offer expert evidence on the issue. The United States District Court for the District of New Jersey disagreed, finding that

Expert testimony would have been both unnecessary and potentially improper. Expert testimony was unnecessary because it was within the jury's own competency to assess the Defendant's intent....It could also have potentially run afoul of Federal Rule of Evidence 704(b), which prohibits expert testimony opining or inferring that the defendant in a criminal case has the requisite intent for the crime charged.

Change "could also have potentially run afoul" to "would have run afoul," and I completely agree with the court's opinion.

-CM

The Dog That Didn't Bark In The Night: Appellate Court Of Connecticut Uses Sherlock Holmes To Solve Hearsay Mystery

My first introduction to the character of Sherlock Holmes was in the summer of 1986. I was nine years-old, and my friend and I went to see Disney's "The Great Mouse Detective," with the inimitable Vincent Price voicing the Moriarty-inspired Professor Ratigan. Despite being released in the "dead period" in Disney animation before the renaissance spurred by "The Little Mermaid," "The Great Mouse Detective" remains my favorite hand drawn animated work from that the House of Mouse has produced. I can still picture the climactic confrontation from Big Ben.

In the next few years, I would read several of Sir Arthur Conan Doyle's stories, which my parents had in our house. And I would watch Barry Levinson's "Young Sherlock Holmes" (a harbinger of the CGI-ification of modern movies) and Thom Eberhardt's humorous "Without a Clue" on HBO. But then, despite catching up on some older Holmes' movies, such as Herbert Ross' Holmes/Freud mashup, "The Seven-Per-Cent Solution," I didn't experience much Sherlock Holmes over the next decade-plus. The only Holmes' work that I remember from that period was listening to the audio CD of Michael Chabon's novella, "The Final Solution: A Story of Detection," in which an eighty-nine year old Holmes is called out of retirement to solve a pair of Holocaust-related mysteries.

Lately, though, there's been a Sherlock Holmes resurgence, and I'm not just talking about Holmes-inspired works, ranging from "CSI" to "House." 2009 saw the release of Guy Ritchie's steampunkified "Sherlock Holmes," and 2011 saw the release of its sequel, both with the puckish Robert Downey, Jr. as the titular detective and Jude Law as his straight man sidekick, Dr. Watson. And, if it's picked up, the CBS pilot, "Elementary" will premiere on CBS with Jonny Lee Miller as Holmes and Lucy Liu as Watson in modern day New York City.

For my money, though, the best Sherlock Holmes adaptation that I've ever seen is Steven Moffat's "Sherlock." Like "Elementary,"  "Sherlock" contemporizes the Holmes tale, but in England, with Holmes as a consulting detective to Scotland Yard, and Watson a veteran of the (modern) Afghan War. Moffat, who is also currently helming the reinvention of "Doctor Who," is a master of both plot and character development. And when you've got Benedict Cumberbach playing Holmes in a performance as good as his name and Martin Freeman inhabiting Dr. Watson, you can't go wrong. You can catch up with Series One of "Sherlock" (consisting of three 90 minute episodes) on Netflix instant streaming, and Series Two, which premiered months ago on the BBC, will debut on PBS' Masterpiece Theater this Sunday at 9:00 PM.

The stories of Sherlock Holmes, of course, have had a huge impact on both criminal and civil trial, and you will frequently see judges and lawyers citing to the fictional detective and his powers of detection. Without question, though, the Sherlock Holmes story that courts cite more than any other is "Silver Blaze," which the Appellate Court of Connecticut cited in its recent opinion in State v. Rosado, 2012 WL 1003763 (Conn.App. 2012), to answer a hearsay question.

"Silver Blaze" is the story of the disappearance of the titular race horse. It is believed that a stranger stole the horse, but Holmes is able to pin the horse's disappearance on the horse's late trainer, John Straker, because a dog at the horse's stable did not bark on the night of his disappearance. The following exchange takes place in the short story:

Gregory (Scotland Yard detective): "Is there any other point to which you would wish to draw my attention?"

Holmes: "To the curious incident of the dog in the night-time."

Gregory: "The dog did nothing in the night-time."

Holmes: "That was the curious incident."

According to Holmes, "I had grasped the significance of the silence of the dog, for one true inference invariably suggests others....Obviously the midnight visitor was someone whom the dog knew well. It was Straker who removed Silver Blaze from his stall and led him out on to the moor."

So, that takes us to Rosado. In Rosado, Geraldo Rosado was charged with conspiracy to commit murder. A concerned citizen informant, however, had contacted a detective, Detective Hunter and told him that someone other than Rosado committed the murder and never mentioned Rosado. While Hunter was testifying, 

Outside the presence of the jury, defense counsel argued, over an objection by the state, that he should be allowed to question Hunter regarding statements made by the concerned citizen in order to impeach Hunter's testimony. The defendant's offer of proof provided that the concerned citizen had told Hunter that someone other than the defendant had shot the victim and that the concerned citizen had not mentioned the defendant. The court sustained the state's hearsay objection, noting that the statements the defendant sought to introduce only had impeachment value if offered for the truth of the matter asserted. The defendant then asked whether the court would permit the following question: "Did the concerned citizen mention [the defendant]?" The state objected to the question on hearsay grounds, and the court again sustained the state's objection.

Here is part of the exchange that followed:

The Court: Yes, the answer is no. Well, I guess that that is—I'm trying to think that—I'm trying to think if that calls for a hearsay response. It may not. Do you object to that question?

[The Prosecutor]: I do, Your Honor, because what it is—you know it's one thing to say what did the concerned citizen say. Clearly, that would elicit a hearsay response.

The Court: Right.

[The Prosecutor]: This is doing the exact same thing in a sense, because what it's doing is—the question—

The Court: The dog that didn't bark in the night.

[The Prosecutor]: Right. The question presumes facts.

The Court: The objection is sustained.

In affirming this decision and the Rosado's conviction, the Appellate Court of Connecticut noted that

The court's reference to "[t]he dog that didn't bark in the night" is to a point made by Sherlock Holmes in Silver Blaze, a story by Sir Arthur Conan Doyle, where the fact that a dog did not bark during the night when a race horse was removed from a stable was an important clue to solve the mystery of who removed that horse from the stable.

I agree with the court's conclusion, but I find the reference to "Silver Blaze" a bit jarring. If, say, Rosado were on trial for murdering his wife and he claimed that a stranger killed her, testimony that the family dog did not bark would be allowed because dogs, as animals cannot utter hearsay, whether they are barking or not. Moreover, if Rosado were on trial for murdering his wife and claimed that a stranger killed her, testimony would be allowed that their child did not scream because the absence of any statement by a person is not hearsay. The problem for the defendant in Rosado was not that the concerned citizen informant said nothing as evidence of his silence would have been admissible. It is that the concerned citizen informant said something, meaning that proof of what the informant did not say was evidence of what the informant did say.

-CM

Do Not Assume: Court Of Appeals Of Maryland Upholds "As Applied" Challenge To Statute Authorizing DNA Collection From Arrestees

A few weeks ago, I posted an entry about a terrific recent article, A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees, North Carolina Law Review Addendum, Vol. 90, p. 157 (2012), by Kevin Lapp & Joy Radice. In the article, Lapp and Joy Radice argue against a federal law authorizing officers from automatically being able to collect DNA from individuals "arrested, facing charges, or convicted." In its recent opinion in King v. State, 2012 WL 1392636 (Md. 2012), the Court of Appeals of Maryland reached a similar conclusion with regard to Maryland's DNA collection law.

In King,

Alonzo Jay King Jr., was arrested in 2009 on first- and second-degree assault charges. Pursuant to § 2–504(3) of the [Maryland Public Safety] Act, King's DNA was collected, analyzed, and entered into Maryland's DNA database. King was convicted ultimately on the second-degree assault charge but, pending his trial on that charge, his DNA profile generated a match to a DNA sample collected from a sexual assault forensic examination conducted on the victim of an unsolved 2003 rape. This "hit" provided the sole probable cause for a subsequent grand jury indictment of King for the rape. A later-obtained search warrant ordered collection from King of an additional reference DNA sample, which, after processing and analysis, matched also the DNA profile from the 2003 rape. King was convicted of first-degree rape and sentenced to life in prison.

§ 2–504(3) provides that

(i) In accordance with regulations adopted under this subtitle, a DNA sample shall be collected from an individual who is charged with:

1. a crime of violence or an attempt to commit a crime of violence; or

2. burglary or an attempt to commit burglary.

(ii) At the time of collection of the DNA sample under this paragraph, the individual from whom a sample is collected shall be given notice that the DNA record may be expunged and the DNA sample destroyed in accordance with § 2-511 of this subtitle.

(iii) DNA evidence collected from a crime scene or collected as evidence of sexual assault at a hospital that a law enforcement investigator considers relevant to the identification or exoneration of a suspect shall be tested as soon as reasonably possible following collection of the sample.

After he was convicted, King appealed, claiming that § 2–504(3) is facially invalid in authorizing collection of a DNA sample from a mere arrestee and that it was invalid as applied to him. The case thus presented a question of first impression for the Court of Appeals of Maryland, which previously found no constitutional problem with the collection of DNA samples from convicted felons in State v. Raines, 857 A.2d 19 (Md. 2004).

In addressing this issue, the court noted that

Courts have upheld overwhelmingly against Fourth Amendment challenges federal and state statutes authorizing warrantless, suspicionless DNA collection from convicted criminals, including incarcerated prisoners, parolees, and probationers. Federal and state courts are divided, however, on the constitutionality of requiring mere arrestees to submit to DNA sample collection. At the heart of this debate (and the present case) is the presumption of innocence cloaking arrestees and whether legitimate government interests outweigh the rights of a person who has not been adjudicated guilty of the charged crime, and is somewhere closer along the continuum to a person who is not charged with a crime than he or she is to someone convicted of a crime.

Then after rigorously laying out a good deal of this conflicting precedent, the court distilled the issue down to the following: 

To evaluate King's as-applied challenge, we analyze the totality of the circumstances, using the Knights balancing test that weighs King's expectation of privacy on one hand and the state's interests on the other, keeping in mind that the "touchstone" of Fourth Amendment analysis is reasonableness. 

And, in conducting this analysis, the court kept two things in mind:

-"Our analysis is influenced also by the precept that the government must overcome a presumption that warrantless, suspicionless searches are per se unreasonable;" and

-"As other courts have concluded, we look at any DNAcollection effort as two discrete and separate searches. The first search is the actual swab of the inside of King's mouth and the second is the analysis of the DNA sample thus obtained, a step required to produce the DNA profile."

King's Expectation of Privacy

Like Lapp and Radice, the Court of Appeals of Maryland disagreed with the analogy between compulsory fingerprinting of arrestees and compulsory DNA collection from arrestees. According to the court,

We do not embrace wholly the analogy between fingerprints and DNA samples advanced in Judge Raker's concurring opinion in Raines and by the State in the present case. As aptly noted, fingerprints are a physical set of ridges on the skin of a person's fingers that, when exposed to ink (or other medium) and the resultant imprint placed on paper or electronic records, can determine usually and accurately a person's identity by matching the physical characteristics to a known set of fingerprints. DNA, on the other hand, is contained within our cells and is collected by swabbing the interior of a cheek (or blood draw or otherwise obtained biological material). While the physical intrusion of a buccal swab is deemed minimal, it remains distinct from a fingerprint. We must consider that "[t]he importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great."...

The information derived from a fingerprint is related only to physical characteristics and can be used to identify a person, but no more. A DNA sample, obtained through a buccal swab, contains within it unarguably much more than a person's identity. Although the Maryland DNA Collection Act restricts the DNA profile to identifying information only, we can not turn a blind eye to the vast genetic treasure map that remains in the DNA sample retained by the State. As Judge Wilner noted in his concurring opinion in Raines,

A person's entire genetic makeup and history is forcibly seized and maintained in a government file, subject only to the law's direction that it not be improperly used and the prospect of a misdemeanor conviction if a custodian willfully discloses it in an unauthorized manner. No sanction is provided for if the information is non-willfully disclosed in an unauthorized manner, though the harm is essentially the same.

According to the court, it was "the State's interest regarding DNA collection from convicted felons overwhelmed these considerations." But the court found that the equation changes when the individual is merely an arrestee and that

The State underestimates, in seeking to apply conclusively our holding in Raines to the present case, the power of a conviction. Raines's conviction was critical to our analysis there, that convicted felons have a "severely reduced expectation of privacy"; the difference regarding a mere arrestee is critical here. Although arrestees do not have all the expectations of privacy enjoyed by the general public, the presumption of innocence bestows on them greater protections than convicted felons, parolees, or probationers. A judicial determination of criminality, conducted properly, changes drastically an individual's reasonable expectation of privacy. The expungement provisions of the Act recognize the importance of a conviction in altering the scope and reasonableness of the expectation of privacy. If an individual is not convicted of a qualifying crime or if the original charges are dropped, the DNA sample and DNA profile are destroyed. The General Assembly recognized the full scope of the information collected by DNA sampling and the rights of persons not convicted of qualifying crimes to keep this information private. This right should not be abrogated by the mere charging with a criminal offense: the arrestee's presumption of innocence remains.

Government Interest

Again, like  Lapp and Radice, the Court of Appeals of Maryland disagreed with the State's labeling of its purpose in DNA collection from arrestees as identifying individuals. Instead, the court found that

Courts upholding statutes authorizing DNA collection from arrestees rely on an expansive definition of "identification" to sweep-up "cold case" crime-solving as a government purpose recognized and approved previously by courts in other contexts. This expanded definition of identity encompasses the traditional name, date of birth, address, and physical characteristics, but also "what that person has done," including his/her past known criminal record and as-yet-unsolved crimes....Although the State does not advance directly this argument here, it is implicated by the State's heavy reliance on forms of "identification"(or evidence, as the case may be) that may have been collected from previous crimes and compared to the "identification" of an arrestee. Such an argument stretches the bounds of reasonableness under our view of proper Fourth Amendment analysis. We decline to accept it in light of its impacts on an arrestee's expectations of privacy in his or her genetic material, unless that material is deemed properly abandoned.

The State argues that it has a legitimate purpose in identifying accurately arrestees. Accepting this argument arguendo, the State presented no evidence that it had any problems whatsoever identifying accurately King through traditional booking routines. King had been arrested previously, given earlier fingerprint samples, and been photographed. There is no claim that King presented false identification when arrested or had altered his fingerprints or appearance in any way that might increase the State's legitimate interest in requiring an additional form of identification to be certain who it had arrested. The FBI's fingerprint database is a reliable method for law enforcement to identify (or confirm the identities of) arrestees promptly and accurately. When an arrestee's fingerprints are uploaded to the database, the results (which include a photograph, fingerprints, and a criminal history) are returned within minutes. This system contains not only criminal records, but also fingerprints uploaded voluntarily by citizens. This database is essential to law enforcement during routine booking of arrestees. On the other hand, the FBI's DNA database contains no personal identifying information, no names, no birth dates, no social security numbers, and no criminal histories. A "hit" may take months to return. The DNA sample is not analyzed until after the first scheduled arraignment date. The profile must be uploaded and the database searched. The laboratory must return theDNA profile. When a "hit" arises, a law enforcement officer is notified, who must request the additional information.

King was arrested on 10 April 2009. The "hit" was returned on 4 August 2009. At this point, King had been identified accurately via other methods. There is no evidence that the DNA "hit" bolstered or clarified his already confirmed identity.

The court thus upheld King's "as applied" challenge. And while it didn't quite grant his facial challenge, it made clear that almost any arrestee raising an "as applied" challenge in the future would be successful. According to the court,

We conclude that King's facial challenge to the statute fails because there are conceivable, albeit somewhat unlikely, scenarios where an arrestee may have altered his or her fingerprints or facial features (making difficult or doubtful identification through comparison to earlier fingerprints or photographs on record) and the State may secure the use of DNA samples, without a warrant under the Act, as a means to identify an arrestee, but not for investigatory purposes, in any event.

-CM

The Good Wife, The Court Of Inquiry, The JFK Assassination, The Battle Of Little Big Horn & Ken Anderson

I finally caught up with last week's episode of "The Good Wife." In the episode, "The Penalty Box,"

DNA evidence has once again shaken things up in the Chicago legal world this week as well-respected criminal court justice Richard Cuesta has been pulled off cases and put in "the penalty box." He’s being accused of prosecutorial misconduct during his time at the State’s Attorney’s office in the 1990s. The current S.A.’s office is not eager to prosecute Cuesta based on this new evidence. If Cuesta did commit misconduct as a prosecutor twenty years ago many more of his convictions could face appeal. The case in question is the 1992 murder of Terri Rooney. The victim's husband, Patrick Rooney, was convicted of her murder. But new DNA evidence determined the presence of another person's blood on the knife that killed her. 

So, in the episode, Alicia and the team defend Judge Cuesta, played by the always reliable David Paymer, before a court of inquiry helmed by the loquacious Judge Murphy Wicks, played by Stephen Root (a vartation of his judge character from "Justified"). The ASA on the case is Seth Kleiberg, played by Jim True-Frost, a/k/a Prezbo from "The Wire." So, what's a court of inquiry, and what's the real life case that gave the episode a "ripped from headlines" feel?

So first, what's a court of inquiry? The opinion of the United States District Court for the District of Texas in In re McClelland, 260 F.Supp. 182, 184 (S.D. Tex. 1966), contains a nice description of the court of inquiry in Texas:

As contemplated by this statute, and in practice, the Court of Inquiry is purely a fact finding proceeding. It may issue subpoenas, take testimony, and do nothing else. There are no parties. There is no accused. No trial is conducted. The Justice of the Peace sitting in this capacity cannot determine any civil or criminal liability. If the facts developed indicate that a crime has been committed, the Justice of the Peace may issue an arrest warrant. That is the only order (other than subpoenas) which he may issue. Thus, the Court of Inquiry is completely unrelated to grand jury proceeding. As this is a local procedure conducted at the county level, I am advised by the Attorney General of Texas that there are no accurate figures or statistics with regard to the purposes or frequency with which it is used. However, in general, history shows that the Court of Inquiry procedure has been availed of in cases of wide public interest, as when the conduct of some public agency or official is called in question, and irrespective of the question of criminality.

Probably the most famous example of a court of inquiry is the one that almost occurred:

[A} Court of Inquiry was scheduled to inquire into all matters in connection with the assassination of President John F. Kennedy in Dallas, Texas, on November 22, 1963, though this was abandoned when the President of the United States by proclamation created The Warren Commission to make a similar inquiry on a nationwide scale.

Often times, courts of inquiry are convened to inquire into questionable actions involving military personnel or property. For instance, in 1879, President Rutherford B. Hayes requested a court of inquiry to investigate the conduct of Major Marcus A. Reno during The Battle of Little Big Horn. The court of inquiry found that Reno, the officer in charge of the only unit to survive the battle, did not act with cowardice. (You can access the entire record of the court of inquiry by clicking here).

Sometimes, however, courts of inquiry are convened to investigate the actions of prosecutors as is the case with the impeding court of inquiry for District Judge Ken Anderson.

The inquiry will examine allegations that Anderson, when he was Williamson County district attorney, withheld crucial evidence that might have shown that [Michael] Morton did not murder his wife, Christine in 1986. Morton was freed in October after DNA evidence linked another person to the killing.

Specifically, it is alleged that

Anderson had provided very few of the available police reports. Key pieces of evidence were missing, including a transcript of a telephone conversation between a sheriff’s deputy and Morton’s mother-in-law in which she reported that her 3-year-old grandson, Eric, had seen a "monster" — who was not his father — attack and kill his mother. 

Police reports from Morton’s neighbors were also missing. They told police they saw a man in a green van park near their home and walk into the woods behind their house. Also missing were reports that Christine Morton’s credit card had been used and a check with her forged signature cashed after her death. Last week, Morton's lawyers said in court that recent investigation showed that the check had been deposited by Morton with others after his wife's death.

In other words, the facts in the Anderson court of inquiry are basically the same as the facts in last week's episode of "The Good Wife": a judge being subjected to a court of inquiry based upon allegedly failing to disclose evidence while he was prosecuting a man for the murder of his wife, with the man being convicted but eventually exonerated based upon DNA evidence.

-CM