“Police Officers Committing Perjury in Testimony About Consent Searches?”
Orin Kerr has this post at The Volokh Conspiracy discussing this “fascinating” recent Florida appellate court opinion raising concerns about the adequacy of judicial assessment of police testimony. From the opinion:
The judge may have punctiliously performed the duties of his office in this case, but, when considering the large number of “consent” cases that have come before us, the finding of “consent” in so many curious circumstances is a cause for concern.
Slobogin on Technology and the Fourth Amendment
Christopher Slobogin (Vanderbilt Law School) has posted Is the Fourth Amendment Relevant in a Technological Age? on SSRN. Here is the abstract:
This work will be a chapter in a forthcoming book in The Future of the Constitution series, edited by Jeffrey Rosen and Benjamin Wittes and published by the Brookings Institute. Over the past 200 years, the Fourth Amendment’s guarantees have been construed largely in the context of what might be called “physical searches” – entry into a house or car; a stop and frisk of a person on the street; or rifling through a person’s private papers. But today, with the introduction of devices that can see through walls and clothes, monitor public thoroughfares twenty-four hours a day, and access millions of records in seconds, police are relying much more heavily on what might be called “virtual searches,” investigative techniques that do not require physical access to premises, people, papers or effects and that can often be carried out covertly from far away. The Supreme Court’s current Fourth Amendment jurisprudence – specifically, its “knowing exposure,” “general public use,” “contraband-specific,” “assumption of risk” and “special needs” doctrines – has both failed to anticipate this development and continued to ignore it. This article describes this jurisprudence and how it can foster law enforcement abuse, mission creep, mistaken seizures and physical searches, and an oppressive atmosphere even for the innocent. It then outlines a more technologically-sensitive Fourth Amendment framework.
DNA Evidence Clears Man After 30 Years”
From The New York Times:
Thirty years after Cornelius Dupree Jr. was imprisoned for rape and robbery, prosecutors in Dallas declared him innocent on Monday in light of new DNA evidence. Mr. Dupree, 51, has served more years in a Texas prison for a crime he did not commit than any of the other 41 people exonerated in the state in recent years.
Peter A. Joy (Washington University School of Law) has posted Constructing Systemic Safeguards Against Informant Perjury (Ohio State Journal of Criminal Law, Vol. 7, p. 677, 2010) on SSRN. Here is the abstract:
Reliance on an informant’s testimony as the primary basis for charging and convicting the accused is fraught with problems. While the hypothetical explicitly addresses the ethical dilemmas defense counsel faces when her client is trading false testimony in exchange for a reduced charge and shorter sentence, the hypothetical also implicitly illustrates the inadequacies of our criminal justice system’s current handling of testimony from cooperating witnesses.
The focus on the ethical, and perhaps moral, obligations of Lawyer representing a potentially perjurious Client begs larger questions. Are there safeguards the prosecutor’s office could employ to ensure that the trial prosecutor, who is focused on convicting Kingpin, has not been manipulated by Client or has not consciously or unconsciously supplied the facts necessary for Client to manufacture the testimony required to convict Kingpin? What criminal justice reforms would help to prevent or discredit such perjury and make a wrongful conviction less likely? These are some of the additional questions we should be exploring. In my comment, I first illustrate why focusing solely on defense counsel ethics is not wholly sufficient and next briefly discuss some criminal justice system reforms that would better safeguard the accused.
December 22, 2010 | Permalink
Said on the Terrorist Informant
Wadie E. Said (University of South Carolina School of Law) has posted The Terrorist Informant (Washington Law Review, Vol. 85, No. 4, 2010) on SSRN. Here is the abstract:
A man sets himself on fire in front of the White House in a dispute with the Federal Bureau of Investigation (FBI). He has been working as an informant for the FBI in a high-profile terrorism prosecution and is unhappy with the $100,000 he has been paid so far. He has also been recently convicted of bank fraud. As a result, the government declines to call him as a witness, given the damage his actions have on his credibility and trustworthiness. This incident underscores the difficulty inherent in relying on paid informants to drive a prosecution, where material considerations such as money and legal assistance are often the price the government pays for an informant’s services. In the years since September 11, 2001, informants have been at the heart of many major terrorism prosecutions. The entrapment defense, perhaps the only legal tool available to defendants in such prosecutions, has proven ineffective. This is evident when one considers the context of generally heightened suspicion of the Arab and Muslim communities in the United States. Further, a closer look at several of these prosecutions reveals repeated instances of suggestive and provocative activity by informants geared at obtaining a conviction, calling into question whether a genuine threat to U.S. national security actually existed in the first place. This Article argues that the government should cease its current practice of using informants to generate terrorism prosecutions.
Risinger on the NAS Report and Error in Forensic Science
D. Michael Risinger (Seton Hall University School of Law) has posted Whose Fault? – Daubert, the NAS Report, and the Notion of Error in Forensic Science (Fordham Urban Law Journal, Forthcoming) on SSRN. Here is the abstract:
The notion of “error” and “error rates” is central both to the Daubert opinion and to the recent National Academy of Sciences Report on the strengths and weaknesses of forensic science in the United States. As might be expected, the NAS Report does a better job of explaining the kinds of error it is concerned with than did the opinion in Daubert. However, to a greater or lesser degree, both fall short of a full consideration of the applicable concept of error, and so doing, they invite confusion about how inaccurate results in forensic science and criminal adjudication may occur, and who if anyone is to blame. This paper examines the notion of error as it might apply in these settings, with due regard to both the philosophical and scientific literature. It concludes that competing notions of normative and objective error have led to unnecessary miscommunication between practitioners of forensic disciplines and their critics, which has resulted in many forensic practitioners feeling unfairly criticized. This in turn has led some in the forensic science community, perhaps understandably, to resist changes in forensic practice that are necessary for the reduction of error in all its forms.