Sunday, July 24, 2011
In the Legal Intelligencer, Bruce Merenstein explains how appellate courts can use secondary sources to accept facts that were never in the trial record. Here is an example from Sykes v. United States, holding that an Indiana statute criminalizing vehicular flight from a law enforcement officer as a violent felony:
In his opinion for five of the justices in the majority, Justice Anthony M. Kennedy contended that statistics on the dangers of fleeing from police in a vehicle, as well as on injuries arising from other violent felonies listed in the ACCA, "confirm the commonsense conclusion that Indiana's vehicular flight crime is a violent felony." In support of this contention, Kennedy cited statistics from a number of recent studies by the International Association of Chiefs of Police, the Bureau of Justice Statistics, and the U.S. Fire Administration, as well as additional statistics from a concurring opinion by Justice Clarence Thomas.
None of these statistics were in the trial record.