EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, March 31, 2021

Eighth Circuit Punts on Question of Whether a Social Worker Can Testify That a Defendant is Not Attracted to Minors

Federal Rule of Evidence 704(b) states that

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

So, under Rule 704(b), can a defendant charged with attempted enticement of a minor and travel with intent to engage in illicit sexual conduct call a social worker to testify that the defendant is not attracted to minors? That was the question of first impression addressed by the Eighth Circuit in its opinion today in United States v. Willins, 2021 WL 1201384 (8th Cir. 2021).

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March 31, 2021 | Permalink | Comments (1)

Tuesday, March 30, 2021

Article of Interest: "Forensic Science and the Judicial Conformity Problem," by Katie Kronick

Professor Katie Kronick (American University Washington College of Law) has posted "Forensic Science and the Judicial Conformity Problem" (Seton Hall Law Review, forthcoming) on SSRN. Here is the abstract:

Almost a quarter of known wrongful convictions have involved faulty forensic science evidence. Since 2008, a series of government-sponsored reports reveals that many areas of forensic science are not only vulnerable to human error, but also lack scientific or evidentiary support for the conclusions they purport to reach. This includes fingerprint analysis, firearm and toolmark examination, bitemark comparison, and hair microscopy. Yet judges continue to admit this expert testimony in criminal cases ranging from homicide to firearm possession to sexual assault without the critical analysis one might expect given the now well-identified problems and the stakes at hand.

This Article explores whether pressure on judges to conform with their peers is a contributing influence to forensic science judicial decision-making and whether judges are admitting faulty or questionable forensic science evidence because they find it reliable or rather because they feel pressure to maintain the norm of admitting such evidence. The “conformity problem” is an interrelationship among the judge’s desire to conform, her personally held beliefs, and the impact of those seeking to exert influence on judicial decisions. This problem, however, is not irreversible. Some judges’ personal characteristics, such as a particular interest in evidentiary issues, may make them more open to forensic science challenges and willing to deviate from the norm. Once these judges decide to limit or exclude questionable forensic evidence, other judges are more likely to deviate. Eventually a new norm—one in which judges critically analyze this evidence—can be established.

After discussing the theoretical underpinnings of the conformity problem and its application to judicial decision-making on forensic science evidence, this Article examines three examples of the conformity problem in judicial decision-making: New Jersey eyewitness identification cases and District of Columbia and Massachusetts firearm and toolmark examination cases. The Article concludes that if even a handful of judges issue decisions properly limiting or excluding forensic science, other courts will follow, the norm will change, and judges will exercise more appropriate critical analysis of forensic science evidence.


March 30, 2021 | Permalink | Comments (0)

Monday, March 29, 2021

Ninth Circuit Grants New Trial After Jury Clears LAPD Officers Who Tased Alex Aguilar 5 Times & Punched Him 3 Times

As the trial of Derek Chauvin in connection with the death of George Floyd began today, the trial related to the death of Alex Aguilar, Jr. is set to start again.

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March 29, 2021 | Permalink | Comments (1)

Sunday, March 28, 2021

Does the Rule From Torres v. Madrid Apply to Unintended Victims?

In its opinion last week in Torres v. Madrid, the Supreme Court held "that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued." This leaves open a few questions, including the question of whether there is a seizure when a police officer applies physical force to the body of a person with the intent to restrain someone else.

There is currently a petition for writ of certiorari before the Supreme Court that involves this exact issue.

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March 28, 2021 | Permalink | Comments (0)

Saturday, March 27, 2021

Supreme Court of Minnesota Finds Sex With a Victim Who Has Blacked Out From Drinking is Not Criminal Sexual Conduct

Minn. Stat. § 609.341, subd. 7 states that

"Mentally incapacitated" means that a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person's agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.

In turn, Minn. Stat. § 609.344, subd. 1(d) states that

A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists:....

(d) the actor knows or has reason to know that the complainant is mentally impaired, mentally incapacitated, or physically helpless.

So, if a defendant engages in sexual penetration with another person who has voluntarily become intoxicated, does the defendant violate Minn. Stat. § 609.344, subd. 1(d)? That was the question addressed by the Supreme Court of Minnesota in its opinion this week in State v. Khalil, 2021 WL 1112444 (Minn. 2021).

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March 27, 2021 | Permalink | Comments (1)

Friday, March 26, 2021

Eighth Circuit Finds Rule 403 Violations in Driver's Protection Privacy Act Case

Federal Rule of Evidence 403 states 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.

It's exceedingly rare that an appellate court will find that a trial judge improperly allowed the admission of evidence that should have been excluded under Rule 403. But that's exactly what happened in the recent opinion of the Eighth Circuit in Krekelberg v. City of Minneapolis, 2021 WL 1044981 (8th Cir. 2021).

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March 26, 2021 | Permalink | Comments (0)

Thursday, March 25, 2021

Supreme Court Rules That An Officer's Application of Force With Intent to Restrain is a Seizure

Today, the United States Supreme Court issued a landmark ruling in Torres v. Madrid, holding that "[t]he application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person." Why is this important? To bring an excessive force claim, a plaintiff must prove that she was seized under the Fourth Amendment. In Torres, Albuquerque police officers executing an arrest warrant at an apartment complex ended up shooting Roxanne Torres twice as she drove away in her FJ Cruiser despite the fact that she was not the target of the arrest warrant. Torres, however, was able to continue driving away, leading the lower courts to conclude that she was not seized under the Fourth Amendment because she did not submit to the force used by the police officers and was instead able to continue driving away.

Torres appealed this issue to the Supreme Court, and I wrote the cert and merits stage amici curiae briefs for law professors, arguing that the application of physical force by an officer with intent to restrain is a seizure, even if the application of force is momentary and the plaintiff is able to escape. The heart of the briefs was the argument that the closest analogy to an arrest without probable cause, and thus a seizure, is the common law tort of false imprisonment, which only requires a momentary touching. 

Both the majority and dissent in Torres picked up on this thread, with differing results.

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March 25, 2021 | Permalink | Comments (0)

Wednesday, March 24, 2021

Oral Arguments in Caniglia v. Strom Today at 10:00am EST

This morning at 10:00am EST, the United States Supreme Court will hear oral arguments in Caniglia v. Strom. You should be able to listen live to the oral arguments on the C-Span website. The issue presented is "Whether the 'community caretaking' exception to the Fourth Amendment’s warrant requirement extends to the home."

In Caniglia, the petitioner's wife called the police because she was worried about him and the possibility that he would kill himself.

Based on their conversations with Petitioner and Mrs. Caniglia, the officers believed there was a 6 risk that Petitioner would harm himself. Id. As a result, they summoned a rescue lieutenant from the Cranston Fire Department to the Caniglias’ home....That officer told Petitioner that he was taking him to a local hospital....Petitioner went along after the police told him they would not take his two handguns if he did so....At the hospital, a nurse and a social worker examined Petitioner....He was discharged the very same day, but had to pay about $1000 for the visit....Meanwhile, the officers entered the Caniglias’ home to seize Petitioner’s guns....The officers believed “it was reasonable to do so based on [Petitioner’s] state of mind,” and feared that “[Petitioner] and others could be in danger” if guns remained in the home....After the officers falsely represented to Mrs. Caniglia that Petitioner had consented, she led the officers to the guns....The officers then seized them.

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March 24, 2021 | Permalink | Comments (0)

Tuesday, March 23, 2021

Professor Ted Sampsell-Jones on the Admission of Character Evidence in the Prosecution of Derek Chauvin

On Friday, Judge Peter Cahill ruled that some evidence of George Floyd's prior arrest in May 2019 would be admissible at Derek Chauvin's trial for murder/manslaughter in connection with the death of George Floyd during his May 25, 2020 arrest. Here is video of that ruling:

Professor Ted Sampsell-Jones of the Mitchell Hamline School of Law has written a terrific piece for The Dispatch on the ruling, the history of character evidence, and how he teaches character evidence to his students. Here is the piece: Should George Floyd's Past Record Be Admitted as Evidence in Derek Chauvin's Trial?


March 23, 2021 | Permalink | Comments (0)

Monday, March 22, 2021

Article of Interest: "Escaping the Fingerprint Crisis: A Blueprint for Essential Research," by Professor Meghan J. Ryan

Professor Meghan J. Ryan from the SMU Dedman School of Law has published "Escaping the Fingerprint Crisis: A Blueprint for Essential Research," in the University of Illinois Law Review. Here is the abstract:

There is a fingerprint crisis in the courts. Judges and jurors regularly convict criminal defendants based on fingerprint evidence, but there are serious questions about the accuracy and reliability of this evidence. The few studies delving into the accuracy and reliability of fingerprint examiners’ work suggest a high error rate and demonstrate that, when faced with the same prints under different conditions, fingerprint examiners frequently reach different results than they previously reached. Further, there is no scientific basis for fingerprint matching. It is unknown whether and to what extent fingerprints are unique; the degree to which fingerprints change under various forces relevant to the creation of latent fingerprints remains a mystery; and computerized fingerprint matching algorithms are even less successful than the questionable subjective matching methods of fingerprint examiners. This Article charts a scientific escape from the debacle, explaining that lawyers must work hand-in-hand with scientists to determine whether they can build a scientific foundation for fingerprint evidence. Detailed research on the uniqueness of fingerprints, the biomechanics of touch, and computerized matching algorithms is central to this endeavor, and more robust studies about fingerprint examiners’ accuracy and reliability could also be useful. If researchers pursue these four tracks of essential research, courts can dig their way out of this existing fingerprint crisis.

I strongly recommend the article for anyone interested in the use of fingerprint evidence at trial.




March 22, 2021 | Permalink | Comments (0)

Sunday, March 21, 2021

Court of Appeals of Washington Finds No Error in Prosecutor Repeatedly Referring to Defendant as a Hornet's Nest

Does a prosecutor commit misconduct by repeatedly referring to a defendant as "a hornet's nest?" That was the question addressed by the Court of Appeals of Washington in its recent opinion in Matter of Richmond, 2021 WL 1032855 (Wash.App. 2021).

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March 21, 2021 | Permalink | Comments (1)

Saturday, March 20, 2021

The Fourth Circuit Rules on Rule 615-Adjacent Conduct

Federal Rule of Evidence 615 provides that 

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

While Rule 615 only literally covers excluding witnesses from the courtroom, judges also frequently go beyond Rule 615 such as informing witnesses that they must not discuss their testimony with other witnesses in the case. So, if a defendant claims that the trial judge erred in connection with Rule 615-adjacent conduct, how should an appellate court rule? That was the question addressed by the Fourth Circuit in its recent opinion in United States v. Ali, 2021 WL 1050003 (4th Cir. 2021).

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March 20, 2021 | Permalink | Comments (0)

Friday, March 19, 2021

Eighth Circuit Finds Prosecutor Didn't Commit Plain Error by Failing to Refer to Defendant by Their Preferred Pronouns

Should prosecutors be required to refer to defendants by their preferred pronouns? That was the question of first impression addressed by the Eighth Circuit in its recent opinion in United States v. Thomason, 2021 WL 966844 (8th Cir. 2021).

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March 19, 2021 | Permalink | Comments (0)

Thursday, March 18, 2021

Southern District of Mississippi Rejects Reptile Theory Evidence

Reptile strategy has taken the plaintiffs' bar by storm. The Reptile theory asserts that you can prevail at trial by speaking to, and scaring, the primitive part of jurors' brains, the part of the brain they share with reptiles.  The Reptile strategy purports to provide a blueprint to succeeding at trial by applying advanced neuroscientific techniques to pretrial discovery and trial.

The fundamental concept is that the reptile brain is conditioned to favor safety and survival. Therefore, if plaintiff's' counsel can reach the reptilian portion of the jurors' brains, they can influence their decisions; the jurors will instinctively choose to protect their families and community from danger through their verdict.  Thus,  the focus of the plaintiff’s case is on the conduct of the defendant, not the injuries of the plaintiff. The jurors are not interested in plaintiff’s injury, even when severe, according to the theory. Rather, the only truly effective  way to engage jurors is to demonstrate how the defendant's conduct endangers the jurors and their families. 

The gurus of Reptilian trial strategy are David Ball and Don Keenan, whose book, “Reptile: The 2009 Manual of the Plaintiff’s Revolution”  purportedly gives its adherents a significant edge over the defense in jury trials.  Several prominent lawyers on the plaintiff’s side have cited this book as the new bible of advocacy

So, should plaintffs' attorneys be able to use "reptile theory" at trial? That was the question addressed by the United States District Court for the Southern District of Mississippi in its recent opinion in Jackson v. Low Construction Group, LLC, 2021 WL 1030995 (S.D.Miss. 2021).

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March 18, 2021 | Permalink | Comments (1)

Wednesday, March 17, 2021

"Just About Any Felony": Court of Appeals of Georgia Finds Trial Judge Improperly Deemed Burglary a Crime of Dishonesty

Similar to its federal counterpart, OCGA § 24-6-609(a) states the following:

For the purpose of attacking the character for truthfulness of a witness:

(1) Evidence that a witness other than an accused has been convicted of a crime shall be admitted subject to the provisions of Code Section 24-4-403 if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the accused; or

(2) Evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of such crime required proof or admission of an act of dishonesty or making a false statement.

So, is burglary a crime of dishonesty or false statement that is automatically admissible under OCGA § 24-6-609(a)(2)?

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March 17, 2021 | Permalink | Comments (1)

Tuesday, March 16, 2021

Call to Action in the Pervis Payne Case

I'm reposting a prior post from January. Pervis Payne is scheduled to be executed on April 9th. I am asking readers to contact Governor BillLee (615-741-2001) to ask him to commue Pervis Payne's death sentence to a life sentence because there are serious questions about his guilt. Here was the initial post:

In its 1987 opinion in Booth v. Maryland, 482 U.S. 496 (1987), the Supreme Court "conclude[d] that the introduction of a [victim impact statement] at the sentencing phase of a capital murder trial violates the Eighth Amendment." Four year later, the Court changed course. In Payne v. Tennessee, 501 U.S. 808 (1991), Pervis Payne was convicted of (1) the first-degree murders of 28-year-old Charisse Christopher and her 2-year-old daughter Lacie; and (2) assault with intent to commit murder in the first-degree against Charisse's 3-year-old son Nicholas.

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March 16, 2021 | Permalink | Comments (1)

Monday, March 15, 2021

Court of Appeals of North Carolina Grants New Trial Based on Jurors Saying, “Someone -- that man died, so someone needs to go to prison.”

Most errors at criminal trials are subject to a harmless error analysis. In other words, the appellate court looks at the gravity of the error and the overall weight of the evidence to decide whether the error was harmless (meaning a conviction can be affirmed) or prejudicial (meaning a conviction must be reversed). In rare cases, however, courts find structural error, meaning that the defendant's conviction must be reversed without needed to decide whether the error was harmless or prejudicial. 

The recent opinion of the Court of Appeals of North Carolina in State v. Blake, 853 S.E.2d 838 (N.C.App. 2020), contains one of the crazier instances of structural error I've ever seen.

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March 15, 2021 | Permalink | Comments (0)

Sunday, March 14, 2021

Eastern District of Virginia Denies Qualified Immunity to Police Officer Who Sicced Police Dog on Non-Threatening Passenger

In my new essay, "The End of Comparative Qualified Immunity," I argue that the one-two punch of  the Supreme Court's recent opinion in Taylor v. Riojas and summary disposition in McCoy v. Alamu will significantly limit the qualified immunity defense going forward. And now, the first opinion to cite the summary disposition in McCoy v. Alamu seems to bear that out.

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March 14, 2021 | Permalink | Comments (0)

Saturday, March 13, 2021

Should Alford Pleas be Admissible at Subsequent Civil Trials?

When a defendant enters a traditional guilty plea, that plea is usually admissible against her at a subsequent civil action. So, for instance, if Dana pleaded guilty to involuntary manslaughter in connection with a fatal car accident, that plea would usually be admissible against her at a subsequent civil wrongful death lawsuit brought by the victim's family. Conversely, a nolo contendere plea (I'm not going to to contest the charges) is usually inadmissible against her at a subsequent civil action pursuant to Federal Rule of Evidence 410(a)(2) and state counterparts. So, if Dana pleaded nolo contendere to involuntary manslaughter in connection with a fatal car accident, that plea would usually be inadmissible against her at a subsequent civil wrongful death lawsuit brought by the victim's family. So, what's the rule with regard to Alford pleas?

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March 13, 2021 | Permalink | Comments (1)

Friday, March 12, 2021

Court of Appeals of Alaska Finds the 12 Step Drug Recognition Evaluation Protocol is Scientific Evidence Subject to the Daubert Standard

What is a drug recognition evaluation (DRE)?

The DRE protocol, which is also known as the Drug Influence Evaluation, consists of twelve steps: (1) a breath alcohol test to rule out alcohol as the source of the driver's impairment; (2) an interview with the arresting officer to ascertain the driver's behavior and any admissions made during or after the traffic stop; (3) a preliminary physical examination, which includes checking the driver's eyes, taking a pulse, and asking general health questions; (4) an examination of the driver's eyes for horizontal gaze nystagmus, vertical gaze nystagmus, and lack of convergence; (5) administration of four balance and divided attention tests; (6) a check of the driver's vital signs; (7) measurement of the driver's pupil size under different lighting conditions and a check of the driver's nose and mouth for signs of drug ingestion; (8) a check for rigid or flaccid muscle tone; (9) a physical inspection of the driver's body for possible injection sites; (10) focused questioning of the driver; (11) the evaluator's formal opinion as to whether the driver is under the influence of a certain category of drugs; and (12) blood or other toxicological testing to confirm the presence of a controlled substance. The evaluator does not rely on any one observation to form an opinion but rather looks to the totality of the circumstances to determine whether the subject is impaired.
A DRE evaluator is trained to identify impairment caused by seven different categories of drugs: central nervous system depressants, central nervous system stimulants, dissociative anesthetics, narcotic analgesics, inhalants, hallucinogens, and cannabis. In order for the DRE results to be considered valid, the final step — the blood test — must confirm that the defendant ingested at least one category of drugs identified by the officer. However, the blood test need not corroborate the officer's identification in its entirety. For example, if the officer believes that the driver is impaired by only one category of drugs, the test results must confirm that same category, but if the test results also reveal one additional category of drugs, the DRE is still considered valid. Similarly, if the officer identifies two categories of drugs and the blood test confirms only one of those categories...the DRE is also still considered valid. In other words, if the officer correctly identifies one category of drug — and does not incorrectly identify more than one category of drug — then the DRE protocol considers the officer's evaluation a success. Bragaw v. State, 2021 WL 750291 (Alaska App. 2021).

So, is the DRE protocol scientific evidence subject to the Daubert standard? That was the question of first impression addressed by the Court of Appeals of Alaska in its recent opinion in Bragaw

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March 12, 2021 | Permalink | Comments (0)