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| Deborah J. Merritt
Moritz College of Law
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1/25/2010 | Court Avoids Decision on Confrontation Clause | | | 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.
Read more: Read the Order |
1/11/2010 | Supreme Court Decides McDaniel v. Brown | | | 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.
Read more: Opinion in McDaniel v Brown |
10/31/2009 | Reporter Shield Law on the Horizon | | | 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.
Read more: NYT Article on Reporter Privilege |
8/22/2009 | Racial Bias Among Jurors and Rule 606(b) | | | 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. |
6/25/2009 | 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. |
4/29/2009 | 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."
Read more: Kansas v. Ventris |
3/21/2009 | High-Tech Jurors | | | 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.
Read more: Article Discussing Jurors and the Internet |
2/18/2009 | 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.
Read more: Forensic Evidence Report |
2/5/2009 | Barry Bonds and Hearsay | | | Baseball player Barry Bonds is scheduled to go to trial on March 2nd on perjury charges. The government alleges that Bonds gave false testimony to a grand jury that was investigating steroids in 2003. But the prosecutor faces challenges in admitting a number of pieces of incriminating evidence against Bonds.
The two most troubling pieces of evidence are a calendar kept by Greg Anderson, Bonds' former trainer, and statements made by Anderson to prosecution witness Steve Hoskins. Anderson is presumably not testifying in this case (he already went to jail for over a year for contempt when he refused to testify to the grand jury), so he is not going to testify to any of his actions directly; thus his prior out-of-court statements are critical to the case.
The calendar was found in Anderson's home, and has various notations, including "BB" at the top (which prosecutors claim stands for Barry Bonds), and "clear" and "G" on specific dates (which prosecutors claim refers to different types of hormones and steroids that Bonds would receive on those dates). The calendar can probably be authenticated, if someone who knows Anderson's handwriting can testify. Also, a jury could certainly make the reasonable inference that "BB" stands for Barry Bonds, given where the calendar was recovered, so relevance is not an issue. But the problem is hearsay--Anderson kept this as a record to communicate specific information, and it is being offered to prove the truth of the matter asserted: i.e., that Anderson planned to inject (or did inject) Barry Bonds with steroids on those specific days.
If Anderson were working for a company, the calendar could probably come in as a business record--but presumably he was working on his own. The prosecutor could claim that state that these statements are statements of future intent, and therefore admissible under Rule 803(3), which allows statements about a declarant's "state of mind"--but this brings up the controversial "Hillmon" doctrine: can the future plans of the declarant to interact with another person (in this case Bonds) be admissible to prove that the other person acted in accordance with those plans? Many commentators believe that it should not--but the courts are split on this issue. Some courts will allow this evidence to prove the actions of a third party, as long as there is some corroboration--which presumably the government can provide.
Of course, if the calendar were a record that Anderson made AFTER the injections, Rule 803(3) would not apply at all, since it only applies to future plans, not to memories. So how can the prosecutor prove that Anderson made these notations BEFORE the injections (as a future plan) and not AFTER the injections (as a record after the fact)? This is yet another challenge for the prosecutor.
The other questionable piece of evidence relates to statements that Anderson allegedly told Hoskins, who is Bonds' former friend and business manager. Hoskins is apparently willing to testify that Anderson told Hoskins that he had injected Bonds with performance-enhancing drugs. This is also hearsay, since it will be offered to prove the truth of the matter asserted (i.e., that Anderson actually did inject Bonds with drugs). The best exception here is probably 804(b)(3)--when Anderson told Hoskins this, it was a statement against interest. We might need to know more about the context of the statement to rule on this issue. WAS it against Anderson's interest to say this to Hoskins? Did it potentially open him up to civil or criminal liability, or have the possibility of harming his pecuniary interest? Probably so--but the prosecutor will have to make this showing.
804(b)(3) also requires that Anderson be "unavailable" for trial--again, assuming he refuses to testify (as he has before), he will be considered "unavailable" under 804(a)(2).
Another possibility is that this was a statement by a co-conspirator (801(d)(1)(e))--but to use this exception the prosecutor would have to argue that Hoskins was part of the conspiracy and that these statements furthered the conspiracy. Again, we will have to know more about the context of the statements to make this ruling.
Finally, since this is a criminal case, we must consider the Sixth Amendment under Crawford. Are the statements made on the calendar or the statements made to Hoskins "testimonial?" Probably not--in neither case would Anderson reasonably believe that his statements would be used at a later trial. Although Bonds' attorney would no doubt want to cross-examine Anderson on this issue, the Constitution does not give him that right.
Read more: New York Times article on Barry Bonds |
2/2/2009 | Lincolnīs Almanac Evidence | | | In honor of Abraham Lincoln's 200th birthday on February 12, here is information about one of Lincoln's famous trial victories. Lincoln defended William Armstrong against charges that he murdered another man during a fight that occurred at about 11 p.m. on August 29, 1857.
A prosecution witness testified that he saw Armstrong commit the murder. On cross-examination, the witness repeatedly assured Lincoln that he could see Armstrong clearly because there was a bright moon high in the sky that night.
Lincoln then produced an almanac showing that the moon was low in the sky and slipping below the horizon at the time of the fight. The jury acquitted Armstrong.
Would the almanac evidence have been admissible under the Federal Rules of Evidence? The almanac was hearsay and, at the time of the trial, was a recent publication--not an ancient document. Lincoln didn't call an expert witness, so he couldn't have relied upon the learned treatise exception. But the judge almost certainly would have taken judicial notice of the fact as one that was "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Rule 201(b). A similar common law principle must have admitted this key evidence during the 1850s.
Notably, however, some contemporaries questioned Lincoln's honesty when introducing the almanac evidence. Many townspeople remembered seeing the moon high in the sky on the evening of the murder. Some claimed that Lincoln used a fake almanac, created for the trial. They suggested, in other words, that Lincoln's source for this judicially noticed fact WAS questionable.
More than 100 years later, an amateur astronomy group explored the allegations of fraud and confirmed the veracity of Lincoln's evidence. The moon on August 29, 1857, was in an extreme phase of its lunar cycle, which decreased the time between its appearance high in the sky and its disappearance below the horizon. Thus, townspeople saw the moon high in the sky some time before the murder but the moon was, as the almanac reported, setting by the time of the killing.
For more information, see the March 2009 issue of "Sky and Telescope" magazine.
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