Supremes Missed the Boat….

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….

Eyewitness Identification….

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.

Coming up with the Supremes….

Today’s crim law and procedure cert grants

Issue summaries are from ScotusBlog, which also links to cert documents and opinions below for some of the cases (and likely in all of the cases soon):
Kentucky v. King: Under what circumstances can lawful police action impermissibly ”create” exigent circumstances that preclude warrantless entry?
United States v. Tinklenberg: Whether the time between the filing of a pretrial motion and its disposition is automatically excluded from the deadline for commencing trial under the Speedy Trial Act of 1974, or is instead excluded only if the motion actually causes a postponement, or the expectation of a postponement, of the trial.
Bullcoming v. New Mexico : whether it violates the Constitution’s right to confront witnesses against the accused for a trial judge to admit the testimony of a crime lab supervisor to discuss a forensic test that the supervisor did not personally conduct or observe.
Freeman v. United States.: whether a federal judge has the authority to reduce a federal criminal sentence after the U.S. Sentencing Commission has reduced the sentence range, even if the judge had already accepted a plea deal involving a longer time in prison
Sykes v. United States .: whether it is a “violent felony” justifying a longer sentence under the armed Career Criminal Act for a suspect to use a vehicle to flee from police after being ordered to stop

Make sure you ask the right questions….

The trial court erroneously failed to ask potential jurors if they understood and accepted four basic constitutional guarantees afforded criminal defendants at trial.
The Illinois Appellate Court, 4th District, has reversed the armed robbery conviction of the defendant, Ahmed A. Yusuf. Champaign County Circuit Judge Thomas J. Difanis presided in the trial court.

In October 2007, Yusuf was convicted of armed robbery. The conviction was affirmed in November 2008. The Illinois Supreme Court denied the defendant’s petition for leave to appeal but issued a supervisory order directing the appeals court to vacate its order affirming the conviction and reconsider the case.

On reconsideration, the defendant argued that the procedure used by the trial court during voir dire failed to allow the venire an opportunity to respond to or be questioned about the juror’s understanding of the four basic constitutional guarantees afforded to criminal defendants at trial.

The appeals court cited a 1984 Supreme Court case, People v. Zehr, 103 Ill.2d 472), holding that a trial court erred during voir dire by refusing defense counsel’s request to ask questions about the state’s burden of proof, the defendant’s right not to testify and the presumption of innocence.

The Supreme Court then amended its Rule 431(b) to assure compliance with its decision in Zehr. The rule provides that a trial judge “shall” ask jurors, “individually or in a group,” if they understand and accept the constitutional guarantees. The rule also provides that the court “shall” provide each juror an opportunity to respond to specific questions about the principles.

During the voir dire in this case, the trial court discussed the constitutional principles but didn’t fully comply with Rule 431(b). “While the court advised the venire en masse of the four Zehr principles, it did not pose the specific questions of whether the jurors understood and accepted all four principles during voir dire,” the appeals court said. “As a result, the court … did not follow the mandate of Rule 431(b) and this failure to comply constituted error.”

The appeals court said the jurors in this case were never asked whether they understood and agreed that the defendant was not required to offer any evidence and that his failure to testify could not be held against him. The appeals court said a defendant’s right not to testify is possibly “the most critical guarantee under our criminal process and is vital to the selection of a fair and impartial jury that a juror understand this concept.”

While the trial court in this case advised the venire en masse or the Zehr principles, it didn’t pose specific questions of whether the jurors understood and accepted any of those principles, the appeals court said.

The appeals court said the trial court’s failure to fully comply with the amended version of Rule 431(b) caused a “complete breakdown of the judicial process that undermines this court’s confidence in the jury’s verdict.” The court’s error was so substantial that it affected the fundamental fairness of the proceeding and denied the defendant a substantial right — a fair trial, the appeals court said.

The appeals court reversed the trial court and remanded the case for a new trial.

People v. Ahmed A. Yusuf, No. 4-08-0034. Justice John T. McCullough wrote the court’s opinion with Justice Sue E. Myerscough and James A. Knecht concurring. Released April 13, 2010.

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.

Only in America…

This issue will be argued this week in Supreme Court…..

City of Ontario v. Quon: (1) Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers; (2) Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.

ON Justice Ginsburg…

Slobogin on Justice Ginsburg’s Gradualism in Criminal Procedure
Christopher Slobogin (Vanderbilt University – School of Law) has posted Justice Ginsburg’s Gradualism in Criminal Procedure (Ohio State Law Journal, Vol. 70, No. 4, p. 870, 2009) on SSRN. Here is the abstract:

This article, written for a symposium analyzing Justice Ginsburg’s jurisprudence on the 15th anniversary of her tenure on the Supreme Court, is the first sustained look at her views on criminal procedure issues (search and seizure, interrogation, the right to counsel, trial rights, sentencing procedures, and the criminal appeals and collateral review processes). Not surprisingly, given her ACLU background, she tends to vote in favor of criminal defendants’ positions more often than most other justices, and she is the most likely to do so since Chief Justice Roberts joined the Court. At the same time, the gradualist tendencies that she has exhibited in other areas of the law – involving incremental steps rather than sweeping pronouncements – is apparent in this area as well. After describing in some detail the major trends in Justice Ginsburg’s voting patterns in criminal procedure cases, the article investigates the effects of this gradualist approach in the Fourth Amendment area, focusing in particular on her decision-making in drug testing and car stop cases.