September 22, 2012
Unauthorized Transfer, Take 5: Court Of Criminal Appeals Of Tennessee Rejects Transferred Intent Doctrine Of Forfeiture By Wrongdoing
In my recent writings about the doctrine of forfeiture by wrongdoing, I have focused upon cases that have either explicitly or implicitly applied transferred intent principles to the doctrine. I thought that with today's post, I would focus upon a case that (kind of) falls on the other side of the issue. So, let's take a look at the opinion of the Court of Criminal Appeals of Tennessee in State v. Ivy, 2004 WL 3021146 (Tenn.Crim.App. 2004).
In Ivy, David Ivy was convicted of the June 2001 murder of Lakisha Thomas. At trial, the prosecution admitted statements made by Thomas pursuant to the doctrine of forfeiture by wrongdoing. The prosecution did not (and could not) claim that Ivy's intent was to render Thomas unavailable at the trial for her murder; instead, it claimed that he killed her to prevent her from testifying against him in an aggravated assault case and/or his parole revocation hearing.
After he was convicted, Ivy appealed, with the Court of Criminal Appeals of Tennessee framing the issue as follows:
The prosecution argued that because the Appellant murdered Ms. Thomas to prevent her from testifying against the Appellant in the aggravated assault case and/or parole revocation hearing, her statements are admissible in his trial for her murder under this exception. The Appellant concedes that the statements would be admissible in proceedings regarding the aggravated assault of June 6 or parole revocation proceedings. However, he asserts that the "forfeiture by wrongdoing" exception allows for the admission of witness statements in a proceeding if the witness was murdered to prevent him or her from testifying in that same proceeding....Thus, for example, if the Appellant murdered Ms. Thomas to prevent her from testifying at a parole revocation hearing, Ms. Thomas' statements would be admissible in the parole revocation hearing. Appellant continues to assert that the rule is not intended to permit the wholesale introduction of hearsay statements made by a murder victim against a defendant in the murder trial simply because the parties were involved in or about to be involved in other litigation at the time of the alleged murder....In essence, the Appellant argues that the "forfeiture by wrongdoing" exception is to be generally limited to the introduction of hearsay statements in the proceeding at which the deceased was expected by the accused to testify.
The court then found that Thomas' statements were improperly admitted, concluding that
We cannot conclude that the proof established by a preponderance of the evidence that the Appellant acted with the intent to procure the victim's unavailability as a witness. First, we would note that the record is absent sufficient proof establishing that the Appellant was even aware that a warrant for his arrest had been issued regarding the June 6 aggravated assault incident. Rather, the record reflects that, although issued on June 7, 2001, the warrant was not served until June 27, 2001, nineteen days after the victim's murder. Additionally, although the Appellant was on parole at the time of both the June 6th incident and the victim's June 8th murder, there is no evidence that a parole revocation proceeding had been initiated. Thus, any finding that the Appellant murdered the victim to prevent her from testifying against him at a future proceeding yet to be scheduled is at best speculative. As much as the proof indicated that the Appellant's intent was to prevent Ms. Thomas from testifying against him, e.g., "he wasn't going back to jail" and "he told me if I put the police in his business he was going to fuck me up," there was also evidence that Ms. Thomas had endured the Appellant's abusive behavior throughout the existence of their relationship. To conclude that the murder was committed for the purpose of preventing Ms. Thomas from testifying at potential future proceedings would expand the Rule beyond the scope of its intended purpose. Moreover, it is conceivable that such a broad application of the Rule would lead to wide-spread abuse by parties seeking admission of out-of-court statements of an unavailable declarant. Accordingly, we conclude that the trial court abused its discretion in admitting hearsay statements under the forfeiture-by-wrongdoing exception.
I'm not sure what to make of the court's opinion. You could read it simply as saying that Ivy didn't have the requisite intent to render Thomas unavailable at any trial, meaning that Ivy is not even a case about transferred intent. That said, Ivy himself acknowledged that Thomas' statements were admissible against him at his aggravated assault case and/or his parole revocation hearing. And the court's conclusion about the possibility of "wide-spread abuse" seems much more directed at the argument that Thomas' statements might be admissible at the murder trial and not at the aggravated assault case or parole revocation hearing.
Where...an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution—rendering her prior statements admissible under the forfeiture doctrine.
September 21, 2012
Doing Bad All By Itself: 9th Circuit Finds Deportation Of Defense Witness Triggered Forfeiture By Wrongdoing
In my recent posts on forfeiture by wrongdoing, I've been focused upon cases in which the defendant causes the unavailability of a prospective witness, meaning that he has forfeited his hearsay and Confrontation Clause objections to the admission of that witness' statements. As the Advisory Committee Note to Federal Rule of Evidence 804(b)(6) makes clear, however, "[t]he rule applies to all parties, including the government." For an example of a case in which the government forfeited its right to object to the defendant's admission of hearsay from a declarant whom the government rendered unavailable, consider the recent opinion of the Ninth Circuit in United States v. Leal-Del Carmen, 2012 WL 4040253 (9th Cir. 2012).
In Leal-Del Carmen, Jonathan Leal-Del Carmen was convicted of three counts of bringing in illegal aliens without presentation and acquitted of three counts of bringing in illegal aliens for financial gain. Leal Del-Carmen thereafter appealed, claiming, inter alia, that the trial court erred in precluding him from admitting either a video or a transcript a conversation between an agent and the only potential favorable defense witness: Anna Maria Garcia-Garcia.
The government deported Garcia-Garcia before trial, and the Ninth Circuit found that this deportation was in bad faith:
The government here interviewed Garcia–Garcia and learned that she had favorable testimony to give. Agent Macias obviously recognized the significance of her statement that Leal–Del Carmen didn't give orders: He asked the question in the first place, no doubt believing that an affirmative answer would help incriminate Leal–Del Carmen. When he got a negative answer, he repeated the question, which he wouldn't have done had he thought the answer inconsequential.
Once the government is aware that an alien has potentially exculpatory evidence, it must treat that person as a material witness and give defense counsel the opportunity to interview him and make a reasoned determination whether to seek his retention pending trial. This means the witness may not be deported before defense counsel has been retained or appointed and has had a fair opportunity to interview him. If defense counsel advises the government that the witness may be useful to the defense, he may not be deported until defense counsel indicates he is no longer needed. If the government wants to deport the witness notwithstanding defense counsel's wishes, it must obtain permission from the district court on a showing of good cause, which defense counsel must have the opportunity to oppose; it must also afford defense counsel the opportunity to cross-examine the witness and preserve the testimony for trial.
Because the court thus found that the government caused Garcia-Garcia to be unavailable for trial and had the intent to render her unavailable for trial, it concluded that forfeiture by wrongdoing applied: "Because the government was responsible for rendering Garcia–Garcia unavailable as a witness, admission of the videotape would prevent it from benefiting from its own wrongdoing."
September 20, 2012
Available For A Limited Time: Court Of Appeals Of North Carolina Applies Forfeiture By Wrongdoing To Aborted Testimony
The opinion of the Court of Appeals of North Carolina in State v. Weathers, 724 S.E.2d 114 (N.C.App. 2012), was the first North Carolina opinion to apply the doctrne of forfeiture by wrongdoing, and there's something pretty interesting about the opinion: The statements admitted under the dotrine consisted of the witness' aborted testimony at trial.
In Weathers, Jaquan Weathers was charged with first-degree murder and three related counts of kidnapping. Johnny Wilson
was one of the State's chief witnesses at trial. During his direct examination on 28 February 2011, Wilson was shaking while testifying about Defendant's involvement in the murder. When he returned to the stand on 2 March, he "began to testify, but within a few minutes became distraught and indicated he did not wish to make any other statements." Wilson was shaking more noticeably than he had been on 28 February, and laid his head down on top of the witness stand and began to cry. Wilson became even more upset when a young man dressed in street clothes entered the courtroom. When asked if he had been threatened, Wilson responded, "I don't even want to answer that question."
In light of Wilson's extreme emotional state, the trial court excused Wilson from testifying further. At the prosecution's request, the court called a hearing on the issue of whether the doctrine of forfeiture applied to the circumstances and whether Wilson's testimony would remain on the record. Defendant argued that the appropriate remedy was to declare a mistrial because he had been denied the right to confront Wilson. By order entered 11 March 2011, the court directed that Wilson's testimony remain on the record. In the order, the trial court found that Defendant had "committed wrongful acts that were undertaken with the intention of preventing potential witnesses from testifying and has in fact caused a potential witness, Johnny Wilson, to refuse to testify."
After he was convicted, Weathers appealed, claiming that a mistrial should have been declared and that WIlson's aborted testimony was improperly admitted under the doctrine of forfeiture by wrongdoing. The Court of Appeals of North Carolina noted that North Carolina does not have a rule of evidence covering forfeiture by wrongdoing but found that Wilson's testimony could be admissible under the common law doctrine. The appellate court then noted that
The trial court made several findings regarding the overwhelming evidence of Defendant's wrongful acts and his intent. First, Wilson disclosed that, as they were being transported to the courthouse for trial, Defendant threatened to kill Wilson and his family. A detention officer also testified that she heard Defendant threaten Wilson. Second, in a taped interview with homicide detectives and assistant district attorneys, Wilson repeatedly expressed his concern that his life and the lives of his family members were in jeopardy.
Moreover, a phone call made by Weathers tended to indicate that the young man who entered the courtroom was an acquaintance intended to intimidate WIlson into not testifying. Based upon this and other evidence the Court of Appeals of North Carolin was easily able to conclude that
In light of the overwhelming evidence regarding Defendant's acts, the intention behind them, and their effect on Wilson, as well as the court's thoughtful, well-reasoned analysis thereof, the trial court did not abuse its discretion in refusing to grant a mistrial.
September 19, 2012
Essay Of Interest: Valena Beety's The Case of Trayvon Martin and the Need for Eyewitness Identification Reform
You know that something is having a deep impact when it starts coming up in conversations that are at most tangentially related to it. You're eating at a restaurant serving some cajun food, and you overhear people at an adjacent table engaging in a heated discussion about the movie "Beasts of the Southern Wild." You're at a university-wide orientation and talking to the new curator at the Moving Image Research Collections, and the topic somehow turns to "Beasts of the Southern Wild." You're watching a New Orleans Saints football game, and what comes up? You guessed it: "Beasts of the Southern Wild." In these situations, when you can almost feel a palpable buzz emanating from something, you just know that it is something that is having a real effect on people and perhaps changing the way that they view things. Such is the case with the recent opinion of the Supreme Court of New Jersey in State v. Henderson, 27 A.3d 872 (N.J. 2011).
As noted by Professor Valena Beety in her essay, The Case of Trayvon Martin and the Need for Eyewitness Identification Reform (Denver University Law Review, forthcoming),
In State v. Henderson, the New Jersey Supreme Court...reformed its test for the admissibility of eyewitness identification evidence. The opinion relied on decades of scientific research, emphasizing the growth in knowledge since the standing admissibility test had been established. In raising the bar for admitting eyewitness identification evidence, the Court recognized the previous approach needed to be updated. The Court incorporated empirical evidence to find the current admissibility standard was not in keeping with due process obligations under the New Jersey Constitution.
The Court in Henderson specifically addressed estimator variables - visibility, age of the viewer, lighting - and system variables - such as line up procedures and police interaction. The Court focused primarily on the system variables, and changing police protocol because they are factors "within the control of the criminal justice system."
So, how do I know that Henderson is primed to have a big impact? Consider State v. Ferguson, 804 N.W. 586 (Minn. 2011), in which the Supreme Court of Minnesota reversed a defendant's murder conviction because the trial court erroneously precluded him from presenting alternate-perpetrator evidence. This meant that the court did not need to address the defendant's argument that the trial court also erred in precluding him from calling an expert witness to testify about the unreliability of eyewitness identification. Nonetheless, in his concurring opinion, Justice Paul Anderson engaged in a lengthy discussion of Henderson, found that it was "an opinion likely to become an important benchmark on the limitations of eyewitness identification," and noted that
if Ferguson offers eyewitness identification expert testimony on remand, I hope that the district court will carefully consider whether the defects in the photo lineup procedure used here and the recent developments in social science require admission of eyewitness identification expert testimony and/or a cautionary jury instruction. Moreover, the court should look closely at New Jersey's safeguards and determine if those safeguards are appropriate here. Specifically, the court should consider the reliability of the eyewitness identification in light of the recent New Jersey Supreme Court decision, in addition to the factors our court has set out in Miles and Helterbridle. If the expert eyewitness testimony is not "otherwise appropriate," the court should consider alternative approaches to educating jurors on the variables that "can lead to misidentifications."...As our courts and jurors grow to understand the science of eyewitness identification, we can better meet the "'twofold aim...that guilt shall not escape or innocence suffer.'"
Even in the Westlaw era, it is impressive that an opinion by the Supreme Court of New Jersey could have such an impact on a judge on another court over 1,000 miles away less than two months later. So, what exactly are estimator variables and system variables? What are the problems with eyewitness identifications, and particularly cross-racial identifications? And what can the Trayvon Martin case tell us about all of this? Let's take a look at Professor Beety's essay.
Memories May Be Beautiful And Yet
What makes a memory? As Professor Beety notes in her introduction, memory storage and retrieval is influenced by both
system variables and estimator variables. These variables include both physical and psychological factors that impact memory accuracy during encoding, storage, and retrieval. System variables are those "under the direct control of the criminal justice system." These include police protocols on instructing a witness before a lineup identification, the composition of the lineup, and how the suspects are presented. Estimator variables, by contrast, include such physical influences as lighting conditions, time of day, and weather at the time of the event, or psychological influences such as the race of the witness and the suspect.
Professor Beety then uses the Trayvon Martin/George Zimmerman case as way to discuss the three phases of memory.
Cracking The Code
The first phase of memory is encoding, which occurs "when the witness visually determines what is happening in the events surrounding him." Why did George Zimmerman think that Trayvon Martin was a criminal who was "up to no good" and probably carrying a firearm rather than an innocent teen returning from the gas station with skittles and iced tea? During encoding, eyewitnesses are influenced by estimator variables such as "the eyewitness' stress level, the duration of the event, lighting conditions, conversations with co-witnesses, and exposure to other narratives of what is happening." In the Trayvon Martin case, it was a dark and stormy night, and Zimmerman had appointed himself as the captain of the neighborhood watch who expected criminal activity from a certain type of person wearing a certain type of clothing at a certain time of day. Because Martin's face was obscured by a hoodie, Zimmerman filled in the blanks; he placed his expectations on the faceless teen before him.
In this sense, the Trayvon Martn case is not the typical identification case in which the eyewitness takes the stand and points at the defense table to the person who is not defense counsel, but the theory is the same: The eyewitness, like Zimmerman, fills in the blanks. Professor Beety cites to six studies analyzing data from over 1300 witnesses; "the witnesses made fewer correct identifications when they viewed subjects wearing hats (44%) rather than subjects who had visible hair and a visible hairline (57%)." When the eyewitness fills in the blanks correctly, we (all too frequently) get a wrongful conviction. In the Trayvon Martin case, we get a wrongful death. But, even if encoding occurs correctly, there is no guarantee that memory is picture perfect.
The second phase of memory is storage, or retaining the information of an event," and it "is equally as corruptible as encoding." Federal Rule of Evidence 803(2) provides an exception to the rule of hearsay for "[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused." The theory behind this excited utterance exception is "that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication." The problem with this thinking is that "[b]earing witness to a crime is stressful and impairs a witness’ ability to accurately perceive his surroundings." This means that excited utterances are of questionable reliability, but at least such utterances are contemporaneous with the startling event or condition.
Now, consider eyewitness identifications that come hours, days, weeks, months, and sometimes years after a crime. How inaccurate are such identifications likely to be? Professor Beety cites to a study in which 530 military personnel were subjected to high or low stress interrogations and then went through food and sleep deprivation for 48 hours. The personnel were then asked to pick out their interrogators out of live and photo lineups. In the photo lineups, the high stress subjects performed considerably worse than the low stress subjects, with over 2/3 making a false identification. In the live lineups, the high stress subjects didn't perform much better, providing false identifications 56% of the time.
Moreover, these problems can be compounded by positive feedback. As Professor Beety notes, studies show that eyewitnesses told that their identifications are correct become much more certain of their identification over time than eyewitnesses given no such feedback. If you want a vivid illustration of this issue, I direct you to my post (and the linked 60 Minutes story) about the Ronald Cotton case, in which the victim, who had been told that her (mis)identification of Cotton was correct, held steadfast in that belief even after being confronted with her actual rapist in the courtroom. The positive feedback calcified her belief of Cotton's guilt that she couldn't identify the real rapist standing before her.
Again, the Trayvon Martin case in not the prototypical case of an eyewitness receiving positive feedback, but George Zimmerman did receive positive feedback from the 911 Dispatcher:
Zimmerman: Something’s wrong with him. Yup, he’s coming to check me out, he’s got something in his hands, I don’t know what his deal is.
Dispatcher: Just let me know if he does anything ok
Zimmerman: How long until you get an officer over here?
Dispatcher: Yeah we’ve got someone on the way, just let me know if this guy does anything else.
George Zimmerman saw a hooded African-American individual, late on a rainy night in his gated community, and filled in the blanks by assuming that the young man was an armed criminal. Then, "[t]he social cues and sanctioned authoritative interactions like Zimmerman’s with the 9-1-1 operator, simple as they may be, confirmed for Zimmerman that he was watching someone dangerous, someone worthy of police attention."
The third and final phase of memory is retrieval, which "involves recalling and reconstructing the event." As Professor Beety notes, this retrieval can be adversely effected by an amalgam of internal and external factors: An eyewitness not told that the suspect might be absent from a lineup of photo array often "chooses the person who most resembles the perpetrator, a phenomenon known as "'relative judgment approach.'"
Furthermore, there is a particular problem with cross-racial misidentification,
a phenomenon where people have difficulty identifying members of a different racial group. Caucasians in particular have difficulty identifying non-Caucasians. In a meta-analysis with nearly 5000 participants, witnesses were 1.4 times more likely to correctly identify a face they had seen before if it was the same race as their own; witnesses were 1.56 times more likely to falsely identify a new face if it was a race other than their own.
It is thus unsurprising that of the 81% of wrongful conviction cases involving mistaken identifications, 44% of those identifications "were Caucasian individuals erroneously identifying innocent African-American defendants as the perpetrator."
The Trayvon Martin case, of course, will not involve the question of whether Martin was involved, but it will involve the question of whether Martin was acting violently, or, more specifically, whether George Zimmerman reasonably believed that he was acting violently. And this is where Professor Beety points out a pretty disturbing analogue to misidentifications:
One of the most popularly known studies on implicit bias and eyewitness identification involves a photograph of two men fighting; one man held a knife while the other was unarmed. When both men in the photograph were Caucasian, subjects generally remembered correctly which man was holding the knife. When the Caucasian man was armed and the African-American man was unarmed, the majority of subjects, both African-American and Caucasian, misremembered the African-American man as holding the knife.
Obviously, George Zimmerman will claim at trial that he thought that Martin was armed and dangerous. And like many eyewitnesses, he may sincerely believe that is what he saw. Luckily, in the Trayvon Martin case, jurors will be able to see that Martin had neither a gun nor a nefarious purpose. But what happens in a typical eyewitness identification case in which the truth is less clear?
Building A Better Mousetrap
This leads to the last part of Professor Beety's essay, which discusses current reforms to eyewitness identification procedures. There's the National Institute of Justice guide for law enforcement on gathering eyewitness evidence, which includes suggestions such as asking open ended questions of witnesses, reminding the witness the actual perpetrator may or may not be present in the lineup, and obtaining a confidence statement of how certain the witness is in his identification. And then there are the suggestions from scientific studies such as using double blind procedures (where neither officer not eyewitness knows the suspect) and sequential lineups in which eyewitnesses can't simultaneously compare features to pick the person who most resembles the suspect.
Professor Beety notes that some jurisdictions have already begun adding these and other protections to their eyewitness identification protocols and favorably cites to the opinion of the Supreme Court of New Jersey in Henderson while at the same time cautioning that "the opinion's focus on police suggestiveness ignores the unreliability caused by estimator variables, and their contribution not only to inaccurate identifications but also wrongful convictions." She also warns that
It should be noted the jury ultimately decides whether evidence is reliable. Studies show that jurors lend greater importance to eyewitness testimony than nearly any other. Jurors also generally show a poor understanding of scientific research on whether and how eyewitness testimony is reliable.
So, where does that leave us? Well, it leaves us with a lot of work to do both inside the court system and outside of it (e.g., in media portrayals of minorities). I led this post talking about the Supreme Court of New Minnesota's favorable citation to Henderson. Well, even more recently, in State v. Guilbert, 2012 WL 3629569 (Conn. 2012), the Supreme Court of Connecticut also favorably cited to Henderson in finding that the trial court improperly excluded expert testimony on the unreliability of eyewitness identifications, more evidence of Henderson's deep impact. But the court ultimately affirmed, finding harmless error because
the trial court instructed the jury that it could consider an eyewitness' emotional condition, including stress during an incident in which a weapon was used, and that that condition could affect the reliability of an identification. The court also instructed the jury that the reliability of an identification might be affected by postevent information such as media coverage and conversations with others, that memories can change over time and that confidence does not necessarily correlate with accuracy. Although we have concluded that generalized jury instructions that merely touch on the subject of eyewitness identification evidence do not suffice as a substitute for expert testimony on the reliability of such evidence, we conclude that the jury instruction in this case provided some modest assistance to the jury that, in combination with the convincing evidence of the defendant's guilt, ensured that the trial court's erroneous exclusion of Morgan's testimony on the reliability of Lang's identification testimony did not substantially affect the verdicts.
Like an eyewitness identification, the Guilbert opinion is both helpful and troubling. The court recognizes the problems with both eyewitness identifications and jury instructions (rather than expert testimony), and yet it is not quite able to reach the conclusion that these problems were enough to necessitate a new trial. This is the space that we currently occupy: Courts are just catching up with the science on the issue, but they're not quite there yet. Hopefully, works like the opinion in Henderson and Professor Beety's terrific essay grease the wheels on the process a bit.
I asked Professor Beety what led her to write the essay, and she responded:
I was motivated to write the piece largely because of the Ole Miss BLSA Chapter. Their efforts to publicize and discuss what happened the night of Trayvon Martin's death and in the months following were inspiring. From my own involvement with eyewitness identification reform in Mississippi I could see the implications of misidentification in the confrontation between Zimmerman and Martin, and I saw the case as an opportunity to further expose the need for eyewitness identification reform in police stations and in the courts. Misidentification doesn't fully explain or exculpate Zimmerman's behavior that night, but it is an important facet to understanding his actions.
September 18, 2012
Who Let The Dogs In?: Professor Leslie Shoebotham's Amici Brief For Harris v. State
Back in July, I posted an entry about a terrific amici curiae brief (2012 WL 2641847 (2012)) written by Leslie Shoebotham, an Associate Professor at the Loyola University New Orleans College of Law, for Jardines v. State, 73 So.3d 34, 49 (Fla. 2011), one of two drug sniffing dog cases being heard by the United States Supreme Court. The second of those cases is Harris v. State, 71 So.3d 756 (Fla. 2011), and Professor Shoebotham has now drafted a piercing amici curiae brief in that case as well. See Brief of Amici Curiae Fourth Amendment Scholars in Support of Respondent, 2012 WL 3864280 (2012) [Download Harris Amici Brief]. The issue in Harris 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." The real question, though, is whether a dog's "certification alone" is sufficient for a positive alert to establish probable cause. And, according to Professor Shoebotham's brief, the answer to that question is a clear "no."
Here was the the conclusion of the Supreme Court of Florida in Harris:
We hold the fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog. To demonstrate that an officer has a reasonable basis for believing that an alert by a drug-detection dog is sufficiently reliable to provide probable cause to search, the State must present evidence of the dog's training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog's reliability. The trial court must then assess the reliability of the dog's alert as a basis for probable cause to search the vehicle based on a totality of the circumstances.
In arguing for a different conclusion by the United States Supreme Court, the State argued, inter alia, that
•The Supreme "Court's precedents compel the conclusion that a well-trained dog's alert to the presence of contraband establishes 'a fair probability' that a search will reveal contraband - and thus probable cause;"
•"[T]he fact that a drug-detection dog has been trained by canine professionals - and performed successfully in training - is sufficient to establish reliability, absent extraordinary circumstances showing otherwise;"
•"[T]he Florida Supreme Court's demand for evidence negating the possibility of an alert to residual odors rather than contraband stems from its mistaken belief that probable cause requires a mathematical certainty rather than fair probability of contraband. See Brief for Petitioner, 2012 WL 3027354.
In her brief, Professor Shoebotham exposes some serious problems with the State's line of reasoning:
The Path of Totality
First, she notes that the Supreme Court has consistently held in cases such as Maryland v. Pringle that probable cause must be determined by considering a totality of the circumstances on a case-by-case basis. And while, "the State [in Harris] was careful to avoid characterizinging its 'credentials alone' canine-reliability test as an exception to the totality-of-the-circumstances analysis, there can be no doubt but that it is." Indeed, the State "mistakenly assume[ed] that an exception to the totality analysis need only be supported by the same fair-probability burden of proof that is required to establish probable cause" while at the same time "mistakenly requir[ing] 'certainty' that other canine-reliability evidence - i.e., field-performance records - would change the outcome of the 'credentials alone' canine-reliability determination before that additional information could be considered.", As she notes,
In application, the State's canine-reliability limitation would function as a prosecution-oriented variant of the "divide-and-conquer" analysis that the Court rejected in Arvizu....There, the lower court erred when it isolated each of the facts that led to a border patrol agent's Terry-stop of a vehicle and excluded from consideration any fact that, taken alone, the court believed was explainable and therefore not suspicious....In rejecting the lower court's "methodology",...Arvizu refused to require the government to prove that each factor, in isolation, was suspicious, or that any particular factor was determinative of suspicion before the trial court could consider it in a totality analysis....
In this new variant of Arvizu, the State "divide[s]" by assigning a certainty burden of proof to the evidence the State opposes for consideration in the totality analysis, while reserving for the State the more modest fair-probability burden for its "credentials alone" canine-reliability test....By assigning what is close to an impossible burden of proof, the "conquer[ing]" becomes a foregone conclusion once the "divid[ing]" has been done....The State cannot have it both ways. Although the probative value of canine-reliability evidence will vary from case-to-case, the Court has never required that probative evidence be proven to a certainty before trial courts may consider it in a totality analysis of suspicion.
According to Professor Shoebotham, this "divide and conquer" tactic by the State is troubling for several reasons.
Who Let The Dogs Out?
And here are a few of those reasons:
•"A simple recital that a drug-detection dog is 'certified' does not on its own establish the dog's reliability for contraband detection in the field" because "[t]raining and certification standards vary widely between private vendors that certify drug-detection dogs;"
•"[V]ast differences in the various agencies's methodology abound, including (1) the length of pre-certification training...; (2) the length of time that must pass before a non-qualifying drug-detection team can try again to obtain certification...; and (3) the amount of contraband that the drug-detection dog is trained to locate;"
•"Rather than detecting the contraband itself, instead, a drug-detection dog reacts to specific noncontraband substances, which enables police to infer that contraband is also present" but can also lead to false positives;"
•"In Harris, the Florida Supreme Court expressed concern that drug-detection dogs may alert to residual odors, meaning that detection dogs may alert even though no contraband is actually present at the time law enforcement conducted the sniff." (And yet, "the government relies on the rapid evaporation rate of methyl benzoate (120 minutes) as a basis to seize currency.")'
•"Handler error occurs when a handler erroneously interprets a drug-detection dog's ambiguous behavior in the field to be a positive alert to presence of contraband," and "[h]andler cuing...occurs when a canine-handler either consciously or, more likely, unwittingly induces a drug-detection dog to alert positively in the field.
Professor Shoebotham also points out this seeming coup de grâce:
Certification of drug-detection teams, not simply dogs, represents the gold standard for canine drug-detection. It is apparently one of the few things about which the industry is in agreement....Yet, in this case, Aldo and Aldo's human handler were never certified together as a team....In fact, even Aldo's certification with his prior handler had expired months earlier....Thus, based on the industry's own standards, the sniff conducted in this case required further information and explanation concerning the detection dog's reliability for contraband detection in the field.
All of these arguments (and more) illustrate Professor Shoebotham's argument that courts must look beyond the four corners of a dog's certification (or, in Harris, inside those four corners) to determine whether an alert by a drug-detection dog creates probable cause. Such an inquiry, which is what the Supreme Court of Florida ordered, is part and parcel of the totality of the circumstances approach.
The Gold Standard or Pyrite?
Finally, Professor Shoebotham notes that in United States v. Place and Illinois v. Caballes, "[c]anine drug-detection sniffs of luggage and vehicles were accepted as non-searches based on the justifications for warrantless use of this investigative technique - limited intrusiveness and accuracy." Thereafter, in United States v. Jacobsen, in finding that the field-testing of the white powder was not a search, the Court
tied its holding to Place, explaining that Place "dictated" the result that the field test was not a search,...because field-testing, like a canine sniff, could reveal "nothing about noncontraband items."...Therefore, in reliance on the similar accuracy of the two investigative techniques, Jacobsen concluded that chemical field-testing, like a canine drug-detection sniff of luggage, could reveal only the presence or absence of contraband, and accordingly, was not a search for Fourth Amendment purposes.
So, the alleged accuracy of drug sniffing dogs has served as the justification not only for deeming such sniffs non-searches, but it also has been used as the foundation for deeming other investigator actions non-searches. Accordingly, Professor Shoebotham argues that we need to dig beneath the "credentials alone" test to ensure that such sniffs are as accurate as some claim and can serve as the gold standard for non-searches.
In a way, this is similar to the recent argument made against the accuraccy of fingerprint evidence, which used to be the gold standard in forensic science but which has begun to fall into a bit of disfavor.
As with Professor Shoebotham's Jardines brief, I was happy to sign onto her Harris brief. In essence, the State is asking courts only to consider their side of the accuracy argument and to ignore any defense arguments to the contrary. In many ways, then Harris, is like Holmes v. South Carolina, in which the Supreme Court found that a law that prevented defendants from presenting evidence of alternate suspects once the State presented forensic evidence of guilt violated the right to present a defense. A "credentials alone" test is the antithesis of the totality of the circumstances test, and I see no reason why the Supreme Court should reverse in Harris.
September 17, 2012
Persons Unknown: Professor Jessica Smith On Williams v. Illinois & The Confrontation Clause
The Supreme Court's most recent Confrontation Clause opinion -- Williams v. Illinois -- was issued while I was in the process of moving from Illinois to South Carolina, so I never really got the chance to address it on this blog. I did preview Williams in a prior post and correctly concluded that the Court would find no Confrontation Clause violation. But while I was right on the results, I was wrong on the reasoning, which is unsurprising giving that the post-Crawford Confrontation Clause framework seems to change from case to case. And, with the Court's fractured opinion in Williams, none of this is likely to change. So, what did the Court hold in Williams? Let's take a look at Confrontation Clause Update: Williams v. Illinois and What It Means for Forensic Reports (Download Confrontation Clause Update), by Professor Jessica Smith of the University of North Carolina School of Government.Professor Smith begins by laying out the basic facts of Williams:
In Williams, the defendant Sandy Williams was charged with, among things, sexual assault of victim L.J. After the incident in question, L.J. was taken to the emergency room, where a doctor performed a vaginal exam and took vaginal swabs. The swabs and other evidence were sent to the Illinois State Police (ISP) Crime Lab for testing and analysis. An ISP forensic scientist, Brian Hapack, confirmed the presence of semen in the swabs. About six months later, the defendant was arrested on unrelated charges and a blood sample was drawn from him pursuant to a court order. State forensic analyst Karen Abbinanti extracted a DNA profile from the sample and entered it into the ISP Crime Lab database. Meanwhile, L.J.’s swabs from the earlier incident were sent to Cellmark Diagnostic Laboratory for DNA analysis. Cellmark returned the swabs to the ISP Crime Lab, having derived a DNA profile for the person whose semen was recovered from L.J. Sandra Lambatos, a forensic specialist at the ISP lab, conducted a computer search to see if the Cellmark profile matched any of the entries in the state DNA database. The computer showed a match to the profile produced by Abbinanti from the defendant’s blood sample. The police then conducted a lineup, and L.J. identified the defendant as her assailant. The defendant was charged and in lieu of a jury trial chose to be tried before a state judge, as apparently was permissible in that jurisdiction.
At trial, Lambatos "testified that, based on her own comparison of the two profiles, she 'concluded that [the defendant] cannot be excluded as a possible source of the semen identified in the vaginal swabs' and that the probability of the profile appearing in the general population was '1 in 8.7 quadrillion black, 1 in 390 quadrillion white, or 1 in 109 quadrillion Hispanic unrelated individuals.'" When cross-examined, "Lambatos confirmed that she did not conduct or observe the testing on the vaginal swabs and that her testimony relied on the DNA profile produced by Cellmark. She stated that she trusted Cellmark to do reliable work because it was an accredited lab but admitted that she had not seen Cellmark’s calibrations or work in connection with the analysis at issue."
The question before the Supreme Court was thus whether the Cellmark report was "testimonial" under Crawford and admitted to prove the truth of the matter asserted, meaning that the person(s) responsible for preparing the report needed to testify to satisfy the Confrontation Clause.
A plurality of the Court (Justices Alito, Roberts, Kennedy, and Breyer) answered both questions in the negative. These justices first found that the report was not offered to prove the truth of the matter asserted but instead was used under what is now Illinois Rule of Evidence 703 to form the factual predicate for Lambatos' expert opinion:
Under settled evidence law, an expert may express an opinion that is based on facts that the expert assumes, but does not know, to be true. It is then up to the party who calls the expert to introduce other evidence establishing the facts assumed by the expert. While it was once the practice for an expert who based an opinion on assumed facts to testify in the form of an answer to a hypothetical question, modern practice does not demand this formality and, in appropriate cases, permits an expert to explain the facts on which his or her opinion is based without testifying to the truth of those facts. That is precisely what occurred in this case, and we should not lightly swee[p] away an accepted rule governing the admission of scientific evidence.
Moreover, the Court found that the report was not testimonial because it was created to catch an unknown criminal rather than to prosecute a known criminal:
[T]he primary purpose of the Cellmark report...was not to accuse [the defendant] or to create evidence for use at trial. When the ISP lab sent the sample to Cellmark, its primary purpose was to catch a dangerous rapist who was still at large, not to obtain evidence for use against [the defendant], who was neither in custody nor under suspicion at that time. Similarly, no one at Cellmark could have possibly known that the profile that it produced would turn out to incul- pate [the defendant]—or for that matter, anyone else whose DNA profile was in a law enforcement database. Under these circumstances, there was no "prospect of fabrication" and no incentive to produce anything other than a scientifically sound and reliable profile.
At the time of the testing, [the defendant] had not yet been identified as a sus- pect, and there is no suggestion that anyone at Cellmark had a sample of his DNA to swap in by malice or mistake. And given the complexity of the DNA molecule, it is inconceivable that shoddy work could somehow produce a DNA profile that just so happened to have the precise genetic makeup of [the defendant], who just so happened to be picked out of a lineup by the victim. The prospect is beyond fanciful.
Meanwhile, Justice Thomas concurred, finding that the Cellmark report was offered to prove the truth of the matter asserted but was not testimonial because
Nowhere does the report attest that its statements accurately reflect the DNA testing processes used or the results obtained. The report is signed by two "reviewers," but they neither purport to have performed the DNA testing nor certify the accuracy of those who did. And, although the report was produced at the request of law enforcement, it was not the product of any sort of formalized dialogue resembling custodial interrogation.
On the other hand, Justice Kagan (joined by Justices Scalia, Ginsburg, and Sotomayor) dissented, finding that the case before it was indistinguishable from Bullcoming:
Have we not already decided this case? Lambatos’s testimony is functionally identical to the "surrogate testimony" that New Mexico proffered in Bullcoming, which did nothing to cure the problem identified in Melendez-Diaz (which, for its part, straightforwardly applied our decision in Crawford). Like the surrogate witness in Bullcoming, Lambatos could not convey what [the actual analyst] knew or observed about the events..., i.e., the particular test and testing process he employed. Nor could such surrogate testimony expose any lapses or lies on the testing analyst’s part. Like the lawyers in Melendez-Diaz and Bull- coming, Williams’s attorney could not ask questions about that analyst’s profi- ciency, the care he took in performing his work, and his veracity. He could not probe whether the analyst had tested the wrong vial, inverted the labels on the samples, committed some more technical error, or simply made up the results. Indeed, Williams’s lawyer was even more hamstrung than Bullcoming’s. At least the surrogate witness in Bullcoming worked at the relevant laboratory and was familiar with its procedures. That is not true of Lambatos: She had no knowledge at all of Cellmark’s operations. Indeed, for all the record discloses, she may never have set foot in Cellmark’s laboratory.
Moreover, Justice Kagan scoffed at the plurality’s "not for the truth" rationale, reasoning that the use of the Cellmark report was "bound up with its truth."
Personally, I think that the dissent had the stronger argument, and I will address why in some upcoming posts starting next week.
September 16, 2012
Victim Of Circumstance?: Is Circumstantial Evidence Sufficient To Survive Summary Judgment In Products Liability Case?
The Supreme Court of South Carolina recently issued an interesting opinion in Graves v. CAS Medical Systems, Inc., 2012 WL 3793263 (S.C. 2012), an opinion that may very well have been shaped by an amicus curiae brief submitted by several law professors. In Graves, the circuit court had found that a plaintiff in a design defect case cannot survive a motion for summary judgment through soleley circumstantial evidence. So, what did the South Carolina Supremes find?
In Graves, India Graves died from SIDS during the early morning hours of Sunday, April 11, 2004. At the time of her death, India was attached to a CAS, AMI Plus ("AMI") infant breathing and heart rate monitor. India's parents, Kareem and Tara Graves, subsequently filed a products liability lawsuit against CAS, contending the monitor was defectively designed and failed to alert them when India's heart rate and breathing slowed. The circuit court granted CAS's motion to exclude all of the Graves' expert witnesses and granted CAS' motion for summary judgment, finding that the Graves could not prove their case solely through circumstantial evidence. These circumstantial evidence included evidene of 50 alarm failure reported to CAS and the FDA, with the circuit court finding that "the substantial similarity of the complaints to the alleged failure in this case [was] never shown."
This led to the law professors' amicus brief [Download Brief of Amicus Curiae (Clocked)], submitted by John F. Vargo, Richard W. Wright, Paul J. Zwier II, Frank J. Vandall, Stephen A. Saltzburg, Jay M. Feinman, Thomas A. Eaton, and Carl T. Bogus. The brief's argument was that a plaintiff in a products liability case should certainly be able to survive a motion for summary judgement solely through presenting circumstantial evidence because (1) circumstantial evidence is just as good as direct evidence; (2) South Carolina courts in every other type of case allow plaintiffs to survive motions for summary judgment through circumstantial evidence; and (3) 47 other states allow for plaintiffs in products liability cases to survive motions for summary judgment through circumstantial evidence.
To prove this last point, the authors include a 50 state survey in an appendix. In that survey, the authors noted that the only two states that have not yet found that circumstantial evidence is sufficient -- Alaska and Maine -- have not yet been confronted with the issue.
So, that takes us to the opinion of the Supreme Court of South Carolina in Graves. Here is the court ostensibly responding to the amicus brief:
We take this opportunity to correct the circuit court's erroneous holding that a plaintiff cannot use circumstantial evidence to prove a design defect claim. "Any fact in issue may be proved by circumstantial evidence as well as direct evidence, and circumstantial evidence is just as good as direct evidence if it is equally as convincing to the trier of the facts." St. Paul Fire & Marine Ins. Co. v. Am. Ins. Co., 251 S.C. 56, 59–60, 159 S.E.2d 921, 923 (1968). Thus, the general rule is any fact can be shown through circumstantial evidence, and it is up to the trier of fact to determine whether it alone is worth as much merit as direct evidence. Although CAS argues we foreclosed the use of circumstantial evidence for design defects in Branham, we recognized in that very case that other similar incidents can be used to show a design defect, which is classic circumstantial proof. See 390 S.C. at 230, 701 S.E.2d at 20.
But how much circumstantial evidence is needed? According to the court,
In this case,...we need not determine what quantum of circumstantial evidence of a design defect is necessary to withstand summary judgment because the lack of expert testimony is nevertheless dispositive of the Graves' claim.
This was because
It is well-established that one cannot draw an inference of a defect from the mere fact a product failed. Sunvillas Homeowners Ass'n v. Square D Co., 301 S.C. 330, 333, 391 S.E.2d 868, 870 (Ct.App.1990). Accordingly, the plaintiff must offer some evidence beyond the product's failure itself to prove that it is unreasonably dangerous. Thus, while the Graves do have witnesses who testified that the alarm did not sound, that alone is not sufficient. In some design defect cases, expert testimony is required to make this showing because the claims are too complex to be within the ken of the ordinary lay juror.
The court then found that the case before it was a sufficiently complex case requiring expert testimony:
We have little trouble concluding as a matter of law that the Graves' claim is one such case because it involves complex issues of computer science. Although we use computers in some form or fashion almost every day of our lives, the design and structure of the software they run is beyond the ordinary understanding and experience of laymen. Hence, the Graves must support their allegations with expert testimony, and without it, their claims are subject to dismissal. Because we find the circuit court did not abuse its discretion in excluding the Graves' computer experts, CAS is entitled to summary judgment.