Criminal defense

Can they ever be wrong?

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“Judges cautioned against reliance on overstated ballistics testimony”

From Grits for Breakfast:
Recently, thanks to contributions from readers, Grits purchased a copy of the brand spanking new third edition of the “Reference Manual on Scientific Evidence” produced by the Federal Judicial Center and the National Research Council of the National Academies of Science – the first update of the manual in more than a decade . . . .
As with other comparative forensic techniques from fingerprints to bitemarks to microscopic hair examination, essentially, all ballistics experts are really saying is “After looking at them closely, I think these two things look alike.” It strikes this writer that it’s quite a big leap from “reasonable scientific certainty” to “more likely than not.” Basically it’s the leap from “beyond a reasonable doubt” to having “substantial doubt.” I wonder how many past convictions hinged on testimony where experts used phrases like “reasonable scientific certainty” or “to the exclusion of all other firearms in the world”? And I wonder how many times those experts were simply wrong?
October 20, 2011 | Permalink

Supremes Missed the Boat….

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It becomes obvious that the members of the Supreme Court have never tried a criminal case and the one that is closest was a prosecutor…they completely miss the point of the eyewitness argument and their recent oral argument on the subject shows a real lack of sophistication on the matter….one need look only no farther than the number of eye witness identifications that were made in convictions that were subsequently overturned by DNA evidence…Humans are not video players …we should not treat them as such….
TCB

Eyewitness Identification….

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34 Years Later, Supreme Court Will Revisit Eyewitness IDs”

Adam Liptak’s story is in the New York Times:
WASHINGTON — Every year, more than 75,000 eyewitnesses identify suspects in criminal investigations. Those identifications are wrong about a third of the time, a pile of studies suggest.
. . .
In November, the Supreme Court will return to the question of what the Constitution has to say about the use of eyewitness evidence. The last time the court took a hard look at the question was in 1977. Since then, the scientific understanding of human memory has been transformed.

Self Defense and the Second Amendment…

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Benforado on Weapons and the Increasingly Dangerous Right to Self Defense

Adam Benforado (Drexel University – Earle Mack School of Law) has posted Quick on the Draw: Implicit Bias and the Second Amendment (Oregon Law Review, Vol. 89, No. 1, p. 1, 2010) on SSRN. Here is the abstract:

African Americans face a significant and menacing threat, but it is not the one that has preoccupied the press, pundits, and policy makers in the wake of several bigoted murders and a resurgent white supremacist movement. While hate crimes and hate groups demand continued vigilance, if we are truly to protect our minority citizens, we must shift our most urgent attention from neo-Nazis stockpiling weapons to the seemingly benign gun owners among us – our friends, family, and neighbors – who show no animus toward African Americans and who profess genuine commitments to equality.

Our commonsense narratives about racism and guns – centered on a conception of humans as autonomous, self-transparent, rational actors – are outdated and strongly contradicted by recent evidence from the mind sciences.

Advances in implicit social cognition reveal that most people carry biases against racial minorities beyond their conscious awareness. These biases affect critical behavior, including the actions of individuals performing shooting tasks. In simulations, Americans are faster and more accurate when firing on armed blacks than when firing on armed whites, and faster and more accurate in electing to hold their fire when confronting unarmed whites than when confronting unarmed blacks. Yet, studies suggest that people who carry implicit racial bias may be able to counteract its effects through training.

Given recent expansions in gun rights and gun ownership – and the hundreds of thousands, if not millions, of private citizens who already use firearms in self-defense each year – this is reason for serious concern. While police officers often receive substantial simulation training in the use of weapons that, in laboratory experiments, appears to help them control for implicit bias, members of the public who purchase guns are under no similar practice duties.

In addressing this grave danger, states and local governments should require ongoing training courses for all gun owners similar to other existing licensing regimes. Such an approach is unlikely to run into constitutional problems and is more politically tenable than alternative solutions.

November 11, 2010 | Permalin

The Death Penalty….

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Goodman, Caldwell & Chase on Transparency in Death Penalty Decisions

Christine Chambers Goodman (pictured), Harry M. Caldwell and Carol A. Chase (Pepperdine University – School of Law , Pepperdine University – School of Law and Pepperdine University) has posted Unpredictable Doom and Lethal Injustice: An Argument for Greater Transparency in Death Penalty Decisions (Temple Law Review, Vol. 82, 2009) on SSRN. Here is the abstract:

In this Article, Professors Goodman, Caldwell, and Chase address prosecutorial arbitrariness of charging decisions in capital cases.

After outlining the constitutional limits on imposing the death penalty established as a result of the Supreme Court’s decision in Furman v. Georgia, the authors discuss the study that they conducted on behalf of the California Commission for the Fair Administration of Justice (CCFAJ). In this study, the authors surveyed California district attorneys to learn more about how they decide whether to seek the death penalty in qualifying cases, and sought statistical information about each death-eligible case. The response to this survey by the California district attorneys offices, as outlined in this Article and discussed more fully in the authors’ report to the CCFAJ, was limited, with nearly one-third failing to provide any response at all, and only fourteen of the fifty-eight offices completing the survey in full.

The authors then provide an expanded analysis of prosecutorial arbitrariness in charging decisions in all thirty-seven U.S. states that still allow death sentences. They focused on each state’s statutory scheme setting forth criteria for seeking the death penalty, and determined that the more expansive the list of death-qualifying criteria is, the greater the potential for prosecutorial abuse of discretion in filing capital cases. The authors also provide the following statistics for each state between 1996 and 2006: state population, number of statutory foundational death qualifiers, number of death sentences, number of sentences to life without parole, and the number of sentences for premeditated murder.

This is followed by a discussion of the Federal Death Penalty Act and the Federal Protocol in filing death penalty cases. The authors suggest that these be used as models to reduce the potential for prosecutorial arbitrariness in capital cases. They also address the need to balance prosecutorial discretion with fairness in seeking the death penalty.

Finally, they provide several suggestions for for ensuring a more just use of capital punishment. These include narrowing the statutory categories of death-eligible crimes, implementing and following publicly disclosed charging criteria and procedures, increased and centralized review of charging decisions, curtailing the ability of elected officials to seek the death penalty, judicial review of charging decisions, and improved record keeping for capital case statistics.

How long will Miranda last…..

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I never thought the Miranda warning was all that useful.  In fact, it actually raises more questions than it answers.  For example, the warning tells a suspect that anything he says can be used against him in court.  But asking for an attorney is saying something, isn’t it?  Could the prosecutor later use such a request against him?  (After all, television teaches us that only guilty people “lawyer-up.”)  And what if the suspect wants to remain silent?  Could his silence be used against him in court?  The Miranda warning fails to answer these and many other questions.

Making matters even worse for the would-be defendant is Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).  In a confidence inspiring 5-4 split, the Court ruled that a suspect cannot actually exercise the right to remain silent by remaining silent—even if that silence lasts through nearly three hours of interrogation.

In response to all of this chaos, I’ve drafted a new and improvedMiranda warning.  Granted, this warning would be a bit more cumbersome for police to deliver, and still wouldn’t answer every possible question.  But it would be an improvement.  Here it goes:

“I first have to read you these rights before you tell me your side of the story, okay?  First, you have the right to remain silent.

  1. Actually, you really don’t have the right to remain silent, unless you first speak. Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).
  2. But if you choose to speak so that you can remain silent, you had better not be ambiguous.  If you tell me, for example, “I don’t got nothing to say,” that is ambiguous to me, and not because of the double negative.  Your ambiguity will be construed in my favor, and I am allowed to continue my interrogation. United States v. Banks, 78 F.3d 1190 (7th Cir. 1996).
  3. On the other hand, if I am ambiguous when I read you your rights, my ambiguity will also be construed against you.  This is only fair.  Florida v. Powell, 130 S. Ct. 1195 (2010).
  4. If you refused to answer questions posed to you before I began reading you your rights, your pre-Miranda silence can be used against you at trial, should you testify in your own defense.  So, you might want to talk to me now so you don’t look guilty later.  Jenkins v. Anderson, 447 U.S. 231 (1980).
  5. But, anything you say to me can be used against you in court.  (I’m not sure if this includes the things that you say in order to remain silent.)
  6. You have the right to an attorney.
  7. But if you choose to exercise your right to an attorney, once again, you had better not be ambiguous about it.  Don’t ask me, for example, “Could I get a lawyer?”  This might seem like a reasonable request to you, since you’re handcuffed and have no other way to actually get the nameless attorney that I just offered you.  However, this statement is also ambiguous and is not sufficient to invoke your rights. United States v. Wesela, 223 F.3d 656 (7th Cir. 2000).
  8. If you can’t afford an attorney, one will be appointed for you, unless your income happens to be above the 1980 poverty line.  Then you might be on your own.
  9. And don’t say “I can’t afford a lawyer but is there any way I can get one?”  As you might have guessed by now, that is completely ambiguous, and lacks “the clear implication of a present desire to consult with counsel.”  The interrogation, therefore, must go on. Lord v. Duckworth, 29 F.3d 1216 (7th Cir. 1994).

Now, do you understand these rights as I have read them to you, and would you like to take this opportunity to help yourself, waive your rights, and tell your side of the story?”

Michael D. Cicchini is a criminal defense lawyer and author of But They Didn’t Read Me My Rights! Myths, Oddities, and Lies about Our Legal System (Prometheus Books, 2010) as well as articles on criminal and constitutional law, available here.

The Wire…..

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Alafair S. Burke (Hofstra University – School of Law) has posted I Got the Shotgun: Reflections on The Wire, Prosecutors and Omar Little (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

The Wire is a show about institutions, the people trapped inside of them, and a society made static by their inaction, indifference, and ineptitude. Whether the series was exploring the drug trade, police departments, city hall, unions, or public schools, the individual actors within those systems were depicted as having little control over either the institutions or their individual fates within them. As a result, the constituencies supposedly served by those institutions continually got the shaft.

To say that The Wire is about the tolls of unmitigated capitalism and inflexible bureaucracies is not to say, however, that the show is silent on, or indifferent to, the criminal justice system that encompasses its main characters. I became especially intrigued by an episode in the first season in which police and prosecutors rely on the testimony of Omar Little in a murder trial, despite doubts about Omar’s first-hand knowledge of the crime. This essay is a reflection on the depiction of law enforcement in The Wire, both generally and with respect to the single scene that first made me a Wire addict.