In a parole revocation hearing, District Judge Chin (SDNY) had to decide whether the defendant committed a bank robbery while on parole. Several pieces of evidence pointed towards the defendant's guilt. One of these, which Judge Chin deemed the "strongest piece of evidence," was that the robber wore a yellow rain hat (shown on the bank's surveillance tape) and the same type of hat was retrieved from a garage that the defendant used.
To underscore the importance of this evidence, Judge Chin noted that his chambers had conducted a google search on yellow hats and rain hats. This search revealed that there are lots of different types of rain hats, and even lots of different types of yellow hats. Finding two yellow rain hats (on the robber's head and in a garage used by the defendant) that matched so closely, made the defendant's guilt more probable.
The defendant appealed, challenging the judge's use of google. The Second Circuit affirmed, upholding the search at least in the context of a parole revocation hearing. The Rules of Evidence do not govern those hearings, although judges follow similar principles. At least under these "relaxed" conditions, the court concluded, the judge's google search simply confirmed an intuition that properly constituted judicial notice.
The Second Circuit, in other words, concluded that the fact that "there are many types of yellow rain hats" is a fact that is "generally known." Judge Chin didn't undermine the suitability of this fact for judicial notice by conducting a search that confirmed his intuition. Google makes it so easy for judges to confirm their intuitions, the court suggested, that judges are more likely to confirm their intuitions before taking judicial notice. Making that confirmation doesn't undermine the appropriateness of judicial notice.
The Second Circuit might not apply its ruling to trials; it stressed the fact that revocation hearings fall outside the formal rules. But the decision raises interesting questions for discussion: Does confirmation of an intuition raise problems that the Second Circuit overlooked? Won't a judge feel more confident in any "intuition" after checking in on google? If that's true, should the parties be allowed to present conflicting evidence or arguments? Or does a google check simply move the evidence into the second category of judicially noticeable facts, those that are "capable of accurate and ready determination"? In other words, does a search engine allow users to accurately determine things like the range of available items?
The U.S. Supreme Court granted certiorari today in a new Confrontation Clause case. That case, People v. Bryant (No. 09-150), may clarify the line between testimonial and nontestimonial statements offered by victims shortly after a crime has occurred. The victim in Bryant talked to police 10-25 minutes after he was shot in the abdomen; he was bleeding profusely and suffering significant pain while answering the officers' questions. An ambulance then took the victim to the hospital, where he died several hours later.
The victim's statement, in which he described the shooting and described his attacker, was essential to the prosecution's case. But the Michigan Supreme Court held that the Sixth Amendment barred use of that statement. People v. Bryant, 768 N.W.2d 65 (Mich. 2009). Noting that the victim had driven several blocks after the shooting, and that police interviewed him as much as 25 minutes after the crime, the court concluded that the statements were made to "prove past events potentially relevant to later criminal prosecution," rather than "to enable police assistance to meet an ongoing emergency." Id. at 69 (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)).
Michigan petitioned the U.S. Supreme Court to review the decision, arguing that other state courts have classified similar statements as nontestimonial. The Court granted certiorari, and the case will be heard next fall.
It is possible that the Court will use this case to explore the status of the dying declaration under the Sixth Amendment. Although the lower court opinion does not rest upon that ground, it is possible that Bryant could raise it in the Supreme Court. The Court, of course, may also use the case to clarify or revisit other aspects of its Confrontation Clause jurisprudence
The Supreme Court issued a per curiam decision in Briscoe v. Virginia (07-11191), which was argued on January 11. The case presented this Term's confrontation clause challenge, focused on application of last Term's decision in Melendez-Diaz. After argument, however, the Court decided that the case offered no issues worthy of immediate decision: It vacated the lower court's judgment and remanded for further proceedings not inconsistent with Melendez.
This morning the Supreme Court decided McDaniel v. Brown, one of the evidence-related cases before the Court this Term. McDaniel grows out of a rape conviction based in part on DNA evidence. In post-trial proceedings, the state admitted that its expert witness fell into the “prosecutor’s fallacy” while testifying at trial. In doing so, the expert greatly overstated the likelihood of the defendant’s guilt. The error was particularly acute in this case because the defendant’s brother was also a suspect; brothers share significant DNA. We discuss the Ninth Circuit’s McDaniel decision on pp. 823-24 of the Learning Evidence text.
In a per curiam opinion, the Supreme Court reversed the Ninth Circuit’s decision and remanded for further proceedings. The Supreme Court acknowledged that “given the persuasiveness of [DNA] evidence in the eyes of the jury, it is important that it be presented in a fair and reliable manner.” Slip op. 16. The defendant, however, had not properly preserved any due process objections to the presentation of the DNA evidence in his case; at best, he had raised constitutional objections to the sufficiency of the evidence overall. The Court thus refused to consider whether the expert’s testimony “rendered [Brown’s] trial fundamentally unfair.” Id. at 14. The Court left open Brown’s ineffective-assistance-of-counsel claim; the Ninth Circuit will consider that challenge on remand.
The Supreme Court’s opinion does not address the difficult probability issues raised by Brown; nor does it explore the bounds of any due process claims based on misleading DNA testimony. But the brief opinion does include the acknowledgement, quoted above, that it is “important” to present DNA evidence “in a fair and reliable manner.” In that way, the decision modestly underscores concerns about proper use of DNA evidence in court.
In March, the House of Representatives passed a bill giving reporters a privilege to shield sources under some circumstances. The initiative lagged in the Senate, slowed by concerns over cases involving national security. But yesterday, Senate leaders and a White House spokesperson announced agreement on a version of the law.
Although the proposal must win formal approval in the Senate and House, some type of federal reporters' privilege appears likely.
In November 2008, the Court of Appeals for the Tenth Circuit held that Rule 606(b) precluded inquiry into jurors' racial biases. After a jury convicted a Native American defendant of assault with a dangerous weapon, a juror offered testimony that two other jurors made biased statements about Native Americans during deliberations. The district court ordered a new trial, but the court of appeals reversed. United States v. Benally, 546 F.3d 1230 (10th Cir. 2008).
Benally has now petitioned the Supreme Court for certiorari. No. 09-5429 (petition filed July 20, 2009). The government's response was filed on October 22, 2009.
(Update) The Supreme Court denied certiorari in November 2009. The government's response argued that the case was in interlocutory status; the court of appeals reinstated the jury verdict and remanded for sentencing. Benally, the government argued, could raise any questions about jury fairness if he appeals his final conviction. This argument alone was likely to persuade the Court to deny certiorari. It's possible that this issue will emerge again if Benally appeals his conviction.
Confrontation Clause and Forensic Analysis
In Melendez-Diaz v. Massachusetts, decided today, the Supreme Court held that an affidavit reporting the results of a laboratory drug analysis is "testimonial." The Sixth Amendment's confrontation clause, therefore, precludes the prosecutor from introducing such an affidavit unless the defendant had an opportunity to cross-examine the author.
Justice Scalia, authoring the Court's opinion, declared the result a "straightforward application" of the Court's holding in Crawford v. Washington. Indeed, Crawford listed affidavits among the types of evidence qualifying as testimonial under the Sixth Amendment.
But Scalia attracted only four other Justices to this holding. Justice Kennedy authored a dissent joined by Chief Justice Roberts, Justice Breyer, and Justice Alito. These four Justices argued that the forensic affidavit was a common type of expert evidence, that scientific findings of this type are highly reliable, and that the majority's ruling would impose grave costs on the criminal justice system.
Despite the 5-4 split, the Court's core Crawford ruling seems secure. Watch, however, for continued resistance to the rule as applied to expert testimony and documentary evidence.
The Sixth Amendment and Impeachment
Today the Supreme Court held that prosecutors may impeach a defendant's courtroom testimony with statements that violate the Sixth Amendment's right to counsel. In Kansas v. Ventris, the defendant made incriminating statements to an informant planted in his holding cell. The state conceded that police obtained the statement in violation of the defendant's sixth amendment rights; the prosecutor did not attempt to use the statement during its case-in-chief.
After the defendant took the stand and offered exculpatory statements, however, the prosecutor introduced the informant's testimony for impeachment. In an opinion authored by Justice Scalia, the Supreme Court upheld this use of the statement. "Our precedents," the Court concluded, "make clear that the game of excluding tainted evidence for impeachment purposes is not worth the candle."
Justice Stevens, joined by Justice Ginsburg, dissented. Stressing that "those who are entrusted with the power of government have the same duty to respect and obey the law as the ordinary citizen," Stevens lamented the "use of ill-gotten evidence in derogation of the right to counsel."
Judges instruct jurors to base their deliberations solely on evidence presented in the courtroom; jurors are not allowed to conduct independent research about facts or issues raised at trial. But some jurors have trouble complying with that instruction.
In several recent cases, judges declared mistrials because jurors had obtained information about the case from internet searches. Individuals are so accustomed to relying upon the internet for information that these searches don't seem to count as "outside research" in the minds of many jurors.
Judges can clarify their instructions to reduce this problem. If a judge explicitly instructs the jury not to use the internet, cell phones, blackberries, or other devices to obtain any information related to the case, jurors are more likely to avoid those contacts. But these restrictions probably seem old-fashioned to jurors used to relying upon the internet as an instant knowledge extender. Judges and trial attorneys must educate jurors about why we rely exclusively on evidence introduced at trial.
Click the link below for further discussion of this issue.
National Research Council Report on Forensic Evidence
The National Research Council has released a report critiquing many uses of forensic evidence. The report calls for better training of forensic scientists, more rigorous certification processes for those scientists, and accreditation standards to govern laboratories. The blue-ribbon committee of judges, legal scholars, scientists, and forensic experts also notes the lack of controlled scientific studies validating many types of forensic analysis; the scientific community, they recommend, should lay a stronger foundation for use of these techniques. Experts testifying at trials, moreover, should more clearly acknowledge the limits of techniques in particular cases.
The report undoubtedly will stir discussion among judges and courtroom attorneys; it may affect rulings on expert testimony, relevance, and prejudice. The findings may also affect the courts' application of the Confrontation Clause to forensic reports. As doubts about the underlying science increase, judges may be more reluctant to admit reports without the opportunity for direct examination of the scientist conducting the study.
The link below will take you to a description of the report, with further links to information about ordering a full copy of the document.