EvidenceProf Blog

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.

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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?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Federal Rule of Evidence 609(b) provides that

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

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

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

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

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

As reported by Brad Zinn,

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

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

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

-CM

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

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

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

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

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

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

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

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

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The Good Wife, The Alford Plea, The Jewish Ban On Confessions, & The Times Of Emergency Necessity Exception

I finally caught up with last week's episode of "The Good Wife," "Pants on Fire." In it,

Alicia and Diane represent one of a trio of girls who was convicted of murder at a summer camp five years ago. Recently, however, it was discovered that the crime lab mishandled the DNA evidence and a judge has overturned their sentence pending a new trial. Not wanting to face a wrongful conviction lawsuit, the state has offered the girls an Alford plea – they can go free, but only if they all sign a statement admitting that they were guilty of committing murder. 

The episode itself didn't do a great job of explaining the Alford plea, but CBS has a nice feature on its website, Cary's Corner, which often does a good job of breaking down the legal jargon of the show. That was certainly the case this week, with Cary's Corner explaining that "[a]n Alford plea is an unusual plea in which a defendant does not admit guilt while at the same time admitting that the prosecution could likely secure a conviction based upon the evidence they’ve compiled." The site then goes on to explain that

The Alford plea is named after Henry Alford, who, in 1963, was tried for first-degree murder in North Carolina, where at the time a guilty verdict for first-degree murder meant Alford would face capital punishment. The prosecutors had witness evidence that Alford had argued with the victim on the night of the murder. He left the victim’s house to return to his own residence to grab his gun. Later there was a knock at the victim’s door, and when he answered it, he was fatally shot by an assailant using Alford’s gun. Personally, I believe that Alford’s gun was sitting right next to Occam’s razor on the shelf, but Alford insisted he was innocent. However, fearing an automatic death sentence, he pled guilty to a lesser charge of second-degree murder. Alford later appealed, arguing that he was forced into the guilty plea because he was afraid of the possibility of receiving a death sentence. His appeal eventually went before the Fourth Circuit Court of Appeals, which ruled that Alford’s plea was not voluntary since it was made under fear of the death penalty. 

The case made its way to the Supreme Court in 1970, where the highest court in the land decided that even if Alford could show that he only entered the guilty plea in order to receive a lesser sentence, the plea would not be invalid, since evidence existed that could support his conviction. Therefore, Alford’s guilty plea was allowable while Alford still maintained his innocence.

Alford pleas are not popular with federal prosecutors. In fact, the U.S. Attorneys’ Manual states that in federal cases, Alford pleas should be avoided “except in the most unusual circumstances.” Alford pleas are more common in local and state courts, however, because of the volume and nature of crimes prosecuted. 

An Alford plea, by its nature, acknowledges the plea bargain system and a defendant’s interest in minimizing potential loss. Over 95% of criminal and civil cases never reach trial; instead, they are settled through attorney negotiation. The Alford plea recognizes this reality and allows a defendant to maintain innocence while, without lying, still making the most advantageous plea bargain possible. For this reason, the Alford plea is also sometimes known as a “best interests” plea.

All of this leads me to an interesting article that I recently read, Compelled to Render Oneself Evil: American Plea-Bargaining from a Jewish Law Perspective, by Melissa Softness, a student at the Emory University School of Law.

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Friend Request: New Articles By Aviva Orenstein & Caren Morrison Address Issues Related To Authenticating Social Networking Evidence

Hundreds of millions of people world-wide use social media. Wikipedia, which is itself a form of social media, describes social media as follows: “Social media includes web-based and mobile technologies used to turn communication into interactive dialogue.” Of particular interest in evidence law are social networking sites that provide online platforms for people to interact. Users adopt a screen name and establish an on-line identity, forming links with friends they know in the real world or strangers who share similar interests. Users can create and edit written content, post photographs, join affiliational groups, post on the page of friends, and engage in one-on-one electronic conversations, all in real time with a timestamp. The content can be original or can be replicated from other sources. Aviva Orenstein, Friends, Gangbangers, Custody Disputants, Lend Me Your Passwords (fortcoming).

Professor Orenstein's article, which I discussed a bit yesterday, is one of two recent pieces I have read on the authentication of evidence from social networking sites, with the other being Professor Caren Morrison's Passwords, Profiles, and the Privilege Against Self-Incrimination: Facebook and the Fifth Amendment (forthcoming). Like their prior works (here and here), both of these works are trenchant and timely, and, as this post will demonstrate, interact in interesting ways.

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Interpreting The Text: Supreme Court Of Nevada Finds Only 2 Of 12 Text Messages Authenticated In Kidnapping Appeal

A woman is attacked in her apartment by two men. Later that night, the woman's boyfriend receives 12 text messages from the girlfriend's cell phone: 

• “Willy boy, you better [].” (1:29 a.m.).

• “Willy, do you love me.” (1:30 a.m.).

• “You better go check on your b––––.” (1:38 a.m.).

• “Not playing, not going to answer the phone. You better go check on that ... b––––, she is, you know.” (1:42 a.m.).

• “You dumb ass idiot, you're not talking to her. You better go to her house now. I have to keep my promise and I'm not going back over there. I think you should.” (1:47 a.m.).

• “You're an a––––––. Come over ... there or your girl is going to suffocate, idiot.” (1:50 a.m.).

• “Yeah, you better go over there now. She is in the closet tied up.” (1:53 a.m.).

• “I hope you is going over there.” (2:00 a.m.).

• “We just f–––– your b––––.” (2:02 a.m.).

• “I'm not going to tell me or you no more. She even told me she got herps.” (2:05 a.m.).

• “How is your girl? Is she okay?” (3:08 a.m.).

• “You're lucky I didn't kill that b–––– and I told you.” (4:21 a.m.). 

The State is able to establish that:

• the girlfriend's cell phone was stolen during the attack; and that

• when the cell phone was recovered, there were photos of the defendant on the phone.

That said, a bus surveillance video shows that the defendant was sitting next to his co-defendant while the co-defendant was authoring the first two text messages, and the cell phone was eventually recovered from the co-defendant. In the defendant's trial for crimes against the victim, are the text messages admissible? Let's take a look at the recent opinion of the Supreme Court of Nevada in Rodriguez v. State, 2012 WL 1136437 (Nev. 2012).

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Doctor, Doctor, Give Me The News: Court Of Appeals Of NY Finds Statements By Police/Family In Hospital Record Admissible

In People v. Ortega, 15 N.Y.3d 210 (2010), the Court of Appeals of New York held that "hearsay statements by crime victims contained in a hospital record that pertain to medical diagnosis and treatment of the victim" are admissible under the exception to the rule against hearsay for business records and/or statements made for purposes of diagnosis or treatment. In Dolan v. Joan W., 2012 WL 108362 (2012), the Court of Appeals of New York had to answer the follow-up question of whether statements by relatives or law enforcement personnel should also be admissible under the exception in hearings pursuant to Article 9 of the Mental Hygiene Law.

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The Pit & The Pendulum: Supreme Court Of Indiana Reverses Prior Precedent Regarding Child Molestation Expert Testimony

Indiana Rule of Evidence 704(b) provides that

Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.

In Lawrence v. State, 464 N.E.2d 923 (Ind. 1984), the Supreme Court of Indiana found that 

Whenever an alleged child victim takes the witness stand in [child molestation] cases, the child's capacity to accurately describe a meeting with an adult which may involve touching, sexual stimulation, displays of affection and the like, is automatically in issue, whether or not there is an effort by the opponent of such witness to impeach on the basis of a lack of such capacity. The presence of that issue justifies the court in permitting some accrediting of the child witness in the form of opinions from parents, teachers, and others having adequate experience with the child, that the child is not prone to exaggerate or fantasize about sexual matters. Such opinions will facilitate an original credibility assessment of the child by the trier of fact, so long as they do not take the direct form of "I believe the child's story", or "In my opinion the child is telling the truth".

But can such testimony be given consistent with Rule 704(b)? According to the recent opinion of the Supreme Court of Indiana in Hoglund v. State, 962 N.E.2d 1230 (Ind. 2012), the answer is "no."

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True Confessions?: Court Of Appeals Of New York Finds No Problem With No Frye Hearing On False Confession Testimony

In People v. LeGrand, 8 N.Y.3d 449 (2007), the Court of Appeals of New York held

that where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror.

In People v. Bedessie, 2012 WL 1032738 (2012), the Court of Appeals of New York was presented with the appeal of a man convicted in a case that turned on the accuracy of his confession and in which there was possibly little or no corroborating evidence connecting the defendant to the crime. That man claimed that the trial court abused its discretion by excluding expert testimony on the phenomenon of false confessions So, what did the court do?

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Feeling Like A Criminal: 2nd Circuit Joins Other Circuits In Finding Rule 404(b) Covers Non-Criminal Acts

Federal Rule of Evidence 404(b) states:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

Every circuit that has addressed the issue has found that Rule 404(b) extends to non-criminal acts or wrongs, and, after the recent opinion in United States v. Scott, 2012 WL 1143579 (2nd Cir. 2012), you can now add the Second Circuit to their ranks.

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Where's My Subpoena?: SDNY Doesn't Quash Subpoena Seeking Impeachment Material

Federal Rule of Criminal Procedure 17(c)(1) provides that

A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.

It is well established that

Rule 17(c) is "not intended to provide a means of discovery for criminal cases," and the scope of the rule is confined to "evidentiary" materials. See United States v. Nixon, 418 U.S. 683, 698-99...(1974).  Under Nixon, a party seeking the production of the documents must demonstrate that the materials are: (1) relevant; (2) admissible; (3) specifically identified; and (4) not otherwise procurable. United States v. Carollo, 2012 WL 1195194 (S.D.N.Y. 2012).

Therefore, in deciding whether to quash a subpoena, a court must deterime whether the materials sought will be admissible as evidence at trial, as was the case in Carollo.

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I Guaranty It: Southern District Of California Finds Loan Documents To Be Self-Authenticating Under Rule 902(9)

Federal Rule of Evidence 902(9) provides that

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:...

(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.

The recent opinion of the United States District Court for the Southern District of California in Rancho Mountain Properties, Inc. v. Gray, 2012 WL 1192755 (S.D.Cal. 2012), provides one of the few examples that I have seen of a court applying Rule 902(9).

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Article Of Interest - A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees, By Kevin Lapp & Joy Radice

In 2000, the federal DNA Analysis Backlog Elimination Act authorized for the first time compulsory extraction of DNA from federal offenders, covering those convicted of a “qualifying Federal offense” and who were still in custody or under post-conviction supervision. Federal law initially prohibited DNA profiles of arrestees from being placed in CODIS. In 2006, Congress significantly expanded DNA collection, authorizing the Attorney General to promulgate regulations for collecting DNA from individuals "arrested, facing charges, or convicted." The Department of Justice issued a final rule in 2008 that directs federal agencies to collect DNA samples from individuals who are arrested, facing charges, or convicted, regardless of the underlying charge or offense. Kevin Lapp & Joy Radice, A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees, North Carolina Law Review Addendum, Vol. 90, p. 157 (2012).

In A Better Balancing, Lapp and Radice, Acting Assistant Professors of Lawyering at the New York University School of Law, take issue with this federal law in large part through deconstructing the analogy that courts have drawn between compulsory DNA collection and compulsory fingerprint collection. I thoroughly agree with their deconstruction and think that an analogy can be drawn between the progression from suspicionless, warrantless fingerprint collection to suspicionless, warrantless DNA collection and the progression from suspicionless, warrantless visual surveillance to suspicionless, warrantless GPS surveillance, a practice that was recently halted by the Supreme Court in United States v. Jones. In both cases, to say that we are dealing with an apples-to-apples comparison only makes sense if the the latter apple is the fruit of the poisonous tree.

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