It happens….

Gould & Leo on Wrongful Convictions

Jon B. Gould and Richard A. Leo (pictured) (George Mason University – School of Public Policy and University of San Francisco – School of Law) have posted One-hundred Years of Getting It Wrong? Wrongful Convictions After a Century of Research (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
In this article the authors analyze a century of research on the causes and consequences of wrongful convictions in the American criminal justice system while explaining the many lessons of this body of work. This article chronicles the range of research that has been conducted on wrongful convictions; examines the common sources of error in the criminal justice system and their effects; suggests where additional research and attention are needed; and discusses methodological strategies for improving the quality of research on wrongful convictions. The authors argue that traditional sources of error (eyewitness misidentification, false confessions, perjured testimony, forensic error, tunnel vision, prosecutorial misconduct, ineffective assistance of counsel, etc.) are contributing sources, not exclusive causes, of wrongful conviction. They also argue that the research on wrongful convictions during the last hundred years has uncovered a great deal about how these sources operate and what might prevent their effects. Finally, the authors urge criminal justice professionals and policy-makers to take this research more seriously and apply the lessons learned from a century of research into wrongful convictions.

Appellate process could use improvement….

indley on Innocence Protection in the Appellate Process

Keith A. Findley (University of Wisconsin Law School) has posted Innocence Protection in the Appellate Process (Marquette Law Review, Forthcoming) on SSRN. Here is the abstract:
It is often said that truth “accurate sorting of the guilty from the innocent” is the primary objective of criminal trials. Among the important safeguards in our criminal justice system intended to ensure that the innocent are protected from wrongful conviction is the system of appeals and postconviction remedies. Recent empirical evidence based on DNA exoneration cases reveals, however, that the appellate process does not do a good job of recognizing or protecting innocence. Examination of known innocents “those proved innocent by postconviction DNA testing” shows that they have rarely obtained relief on appeal. Moreover, those individuals subsequently proved innocent by postconviction DNA testing do no better on appeal and their innocence is no more regularly acknowledged than otherwise similarly situated individuals who have not been exonerated by DNA. This article examines the variety of reasons why the appellate system fails to effectively guard against wrongful conviction of the innocent, and considers possible reforms that might enhance the system’s innocence-protecting functions.

Eating away…..

Fourth Amendment news–“House votes to expand national DNA arrest database”

House votes to expand national DNA arrest database by Declan McCullagh on CNET News:

Millions of Americans arrested for but not convicted of crimes will likely have their DNA forcibly extracted and added to a national database, according to a bill approved by the U.S. House of Representatives on Tuesday.

By a 357 to 32 vote, the House approved legislation that will pay state governments to require DNA samples, which could mean drawing blood with a needle, from adults “arrested for” certain serious crimes. Not one Democrat voted against the database measure, which would hand out about $75 million to states that agree to make such testing mandatory.

Non testimonial hearsay..what is it?

Lynn McLain (University of Baltimore School of Law) has posted ‘I’m Going to Dinner with Frank’: Admissibility of Nontestimonial Statements of Intent When Their Relevance is to Prove the Actions of Someone Other than the Speaker (Cardozo Law Review, Forthcoming) on SSRN. Here is the abstract:
A woman tells her roommate that she is going out to dinner with Frank that evening. The next morning her battered body is found along a country road outside of town. In Frank’s trial for her murder, is her statement to her roommate admissible to place Frank with her that night? Since the Court’s 2004 Crawford decision, the confrontation clause is inapplicable to nontestimonial hearsay such as this.

American jurisdictions are widely divided on the question of admissibility under their rules of evidence, however. Many say absolutely not. A sizeable number unequivocally say yes. A small number say yes, but condition admissibility on the proof of corroborating evidence that Frank met her. Although this third compromise approach has much to recommend it, the author argues that, as presently framed, it violates the rule adopted in the Supreme Court’s 1990 decision in Idaho v. Wright applying the confrontation clause.

The author makes several other novel arguments. First, she argues that Wright continues to apply to nontestimonial hearsay, but via the due process clause. Next she suggests that jurisdictions may constitutionally achieve the same result, however, in one of two ways: (1) they could codify the corroboration requirement in their definition of the applicable evidence rule, the state of mind hearsay exception; or (2) through their case law, they could admit the hearsay statement without requiring corroborating evidence, but invoke a corroboration requirement when evaluating the sufficiency of the evidence, for due process reasons, at the close of the case.
May 14, 2010 | Permalink

Not yet for brain scans…..

A court in Brooklyn has deemed inadmissible MRI evidence of the truthfulness of a witness in an employment discrimination case. The details are sketchy but it sounds like the evidence was declined on the ground that credibility is a jury determination. Apparently, the court did not consider the scientific merits or demerits of the technology. See Wired story here (and an earlier story here). We will soon learn more about how courts handle such evidence in an upcoming criminal case. The issues raised may be especially interesting in the criminal context where defendants have certain constitutional interests in presenting exculpatory evidence. As I have argued informally and as Fred Schauer has argued in print (“Neuroscience, lie-detection and the law,” Trends in Cognitive Sciences, 2010), the strength of evidence we’d like to have to support a tort claim is different than the strength of evidence we need to raise a reasonable doubt in a criminal case. Here’s what we know about the case from the Wired article: has learned that more brain scans conducted by the company Cephos will be put to the legal test in a federal case in the western district of Tennessee. On May 13, that court will hear arguments over MRI evidence in a Daubert hearing, the procedure used to assess the admissibility of scientific information in Federal court.
In that case, the U.S. attorney charges that Lorne Semrau, a psychiatrist, sought to defraud Medicare and Medicaid in the way he contracted and billed for his services. Semrau argues he had no intent to defraud the government and underwent a brain scan to prove it. His attorney, J. Houston Gordon, filed paperwork indicating that Stephen Laken, president of Cephos, would testify on the MRI evidence the company obtained. “Dr. Laken will further testify that Dr. Semrau was presented questions using MRI technology and was instructed to respond to questions in either/both a truthful or deceitful manner, depending on the question posed,” Gordon wrote. “The MRI screening demonstrated to a scientific certainty, that Defendant was truthful and possessed no intent to defraud or cheat the government.”

The Exclusionary Rule…

Robert M. Bloom (pictured) and David H. Fentin (Boston College – Law School and Boston College) have posted ‘A More Majestic Conception:’ The Importance of Judicial Integrity in Preserving the Exclusionary Rule (University of Pennsylvania Journal of Constitutional Law, Forthcoming) on SSRN. Here is the abstract:
In Mapp v. Ohio (1961), the Warren Court held that the so-called exclusionary rule was applicable to the states. Subsequent Supreme Courts have shown their disenchantment with the rule by seeking to curb its applicability. Most recently, the Court has characterized the exclusionary rule as a “massive remedy” to be applied only as a “last resort.” The Courts’ analytical framework for the last thirty-five years for cutting back the exclusionary rule was a balancing test which weighed the costs of suppressing reliable evidence with the benefits of deterring future police violations.

This balancing has been used most recently in two Supreme Court cases, Michigan v. Hudson (2006) and Herring v. United States (2009). In Herring, Justice Ginsberg’s dissent pointed out that there was a “more majestic conception” for the exclusionary rule due to its important role in preserving judicial integrity. Judicial integrity was the original reason for adopting the exclusionary rule in the Supreme Court case of Weeks v. United States (1914). The Court in Weeks saw the exclusionary rule as a remedy that would give meaning to the Fourth Amendment as well as prevent the Court from participating in an illegality by utilizing unlawfully obtained evidence. Through balancing, the Court has eviscerated the relevance of judicial integrity as the original justification for the exclusionary rule. This article will demonstrate that the exclusionary rule is the only viable remedy to give meaning to the Fourth Amendment, and argues that the exclusionary rule be returned to its previous prominence by reinstating judicial integrity as its primary purpose.

Hit the delete button…..because….

Ari B. Fontecchio has posted Suspicionless Laptop Searches Under the Border Search Doctrine: The Fourth Amendment Exception that Swallows Your Laptop on SSRN. Here is the abstract:

The Department of Homeland Security recently set forth a new policy allowing suspicionless searches of the data inside the laptops of international travelers upon entry into the United States. The government has justified these searches under the border search and special needs doctrines, which render constitutional any “routine” search performed at the international border. The logic behind the special needs doctrine is that the government can operate outside the traditional confines of the Fourth Amendment because there is something “special” about the border. However, where data is concerned, the special needs and border search doctrines do not apply, because data travels electronically via cyberspace, not through the United States’ physical borders such as airports and highways. Therefore, the government has no special need to search data at these physical borders separate and apart from searching data in computers already inside the country. In fact, suspicionless data searches compromise border security by allowing officers to engage in time-consuming data searches instead of preventing the entry of weapons that can cause immediate harm. Since such data searches hurt rather than help to achieve border security, the government’s interest in performing suspicionless data searches at the border does not outweigh an individual’s interest in privacy. On balance, an individual’s privacy interests should prevail. Consequently, the Policy allowing suspicionless searches of laptop data violates the Fourth Amendment.

April 20, 2010 | Permalink