November 2008 Archives

November 19, 2008

Herring v. U.S.: The 4th Amendment Is Back in the Supreme Court

The 4th Amendment prohibits unreasonable searches and seizures by government officials. What should happen when police officers violate the 4th Amendment has been one of the most enduring legal sagas of the past 50 years. In Mapp v. Ohio (1961), the U.S. Supreme Court adopted the "exclusionary rule" that improperly seized evidence is not admissible at trial. Because the exclusion of improperly seized evidence may mean that charges have to be dismissed, critics of the exclusionary rule have argued that "the culprit should not go free just because the constable blundered." However, the Court in Mapp thought it more important to deter improper police behavior, and thought that an exclusionary rule would remove the incentive to seize evidence improperly.

Though the court has never overturned the exclusionary rule, it has from time to time limited its scope. One limitation is known as the "good-faith exception" to the exclusionary rule. What this exception boils down to is that evidence seized in violation of the 4th Amendment is admissible at trial if the police acted in good faith on information they reasonably believed was accurate. 

In November 2008, the Court heard arguments about the scope of the good-faith exception in the case of Herring v. United States. Here's what happened: A police officer arrested Herring after being informed that the sheriff's office of a nearby county had a warrant out for Herring's arrest. The officer searched Herring and found illegal drugs and a weapon. A few moments later, the sheriff's office called back to say "Oops -- our bad. A while back we did have an arrest warrant out for Herring, but not anymore." Had the arresting officer known that no warrant existed, he would have had no right to arrest Herring or search him. Nevertheless, based on the officer's good-faith belief that he did have a right to make the arrest, the drugs and weapon were deemed admissible in evidence and Herring was convicted.

Herring argues that the good-faith exception should not apply to his case because the wrong information was given out by a sheriff's office. Thus, the police were responsible for the "chain of error." Moreover, failure to apply the exclusionary rule will only encourage sloppy police record-keeping. The government responds that an "isolated and negligent" clerical error is not a valid basis for excluding evidence. Moreover, upholding Herring's conviction will not encourage sloppy record-keeping because police agencies have lots of reasons to maintain proper records. For example, improper arrests can subject officers to civil rights lawsuits.

Will the Court apply the good-faith exception to the officer's conduct and affirm Herring's conviction? The trend of decisions suggests that the answer will be, "Yes." Recent 4th Amendment opinions have stressed the increased professionalism of police agencies -- with citizen review boards -- and hence less need for a broad exclusinary rule.  We should have an answer from the Court by early 2009.

November 12, 2008

Guns for Spouse Abusers

In 1996, Congress expanded an existing law so that people convicted of misdemeanor domestic violence could not own guns. In November of 2008, the U.S. Supreme Court heard arguments in the case of United States v. Hayes, which requires the Court to interpret the expanded law.

As it happens, only a few states (including California, Illinois, Michigan, and Ohio) have laws that specifically criminalize domestic violence. In other states, domestic violence is illegal under their general laws outlawing assault and battery. Under such a law, Randy Hayes was convicted only of misdemeanor battery in 1994 after beating up his then-wife. A decade later, the police came to Hayes' home after receiving another domestic violence call. When the police found out that Hayes owned guns, Hayes was charged with and convicted of violating the 1996 law forbidding perpetrators of misdemeanor domestic violence from owning guns.


Hayes argues that the 1996 law does not apply to him, because he was convicted of misdemeanor battery, not of "domestic violence". A federal court of appeals in Virginia accepted this argument and set aside Hayes' conviction. The correctness of that ruling is now before the Supreme Court.

The Justice Department, seeking to uphold Hayes' conviction, argues that Congress clearly intended to prevent people like Hayes from owning guns. Furthermore, the Court shouldn't be swayed by the fact that Hayes was convicted only of a misdemeanor. He seriously beat his then-wife, but as in many domestic violence cases was allowed to plead guilty to a misdemeanor. (Prosecutors are often forced to allow domestic violence perpetrators to plead guilty to reduced charges because the victims refuse to cooperate.)

If the Court upholds Hayes' argument that the 1996 law's gun ban does not apply to him, Congress might re-write the law. A re-written law might outlaw gun ownership by all persons convicted of misdemeanors based on acts of domestic violence. Or, states that do not currently have such laws on their books might enact laws specifically outlawing domestic violence. In either event, the politicians will probably face opposition from the Gun Lobby. For example, the 2nd Amendment Foundation argues that "the right to own a gun shouldn't be taken away over a misdemeanor". I'm sure that thousands of domestic violence victims, as well as the families of the many cops who have been shot and killed while answering domestic violence calls, would disagree.

November 9, 2008

DNA and NIJ Go After Burglars


If only from watching TV shows like "C.S.I.," most of us know that police agencies often rely on DNA analysis to identify the perpetrators of a crime. Of course, TV programs typically focus on bloody, violent crimes; how many viewers would tune in to watch police officers track down jaywalkers?

TV images notwithstanding, in everyday life property crimes such as burglary are far more prevalent than violent ones. The good news, according to a report funded and recently released by the National Institute of Justice (NIJ), is that DNA analysis can also be an effective tool for solving  property crimes.

The NIJ study focused on 5 different police agencies and compared the results of burglary investigations that used only traditional police practices like fingerprint comparisons with the results of investigations in which the agencies also collected and analyzed DNA evidence. DNA emerged as the big winner. For example, when police agencies relied only on traditional methods of investigation, they identified the perpetrators in only 12% of the cases. When they also used DNA analysis, the agencies were able to identify perpetrators in 31% of the cases.

Part of the study's good news was that police officers were just as good at collecting evidence suitable for DNA analysis as forensic technicians. This means that police agencies thinking about expanding the use of DNA analysis to burglary may not have to spend as much money on white lab jackets as they feared.

Nevertheless, the obstacles to using DNA evidence to solve property crimes are considerable. Existing forensic laboratories aren't sufficiently funded to meet the demands for DNA analysis that have already been placed on them. For example, the LAPD has acknowledged that it has a massive backlog of unexamined DNA evidence from violent crimes and that it was uncertain of its ability to find the funding needed to reduce the backlog. And DNA analysis isn't cheap. According to the NIJ report, the average cost of using DNA analysis to arrest burglars who would not have been arrested through the use of traditional police methods was $14,169 per case.

Unless governments are willing to make huge increases in police agency budgets, any use of DNA analysis to solve property crimes will mean a reduction in the use of DNA analysis to solve violent crimes. Thus, while the report's findings were impressive, there's little likelihood that DNA analysis will become a major tool for solving property crimes anytime soon.

November 6, 2008

Phil Spector On Trial for Murder -- Again

About a year after a previous jury was unable to decide whether rock and roll legend Phil Spector murdered Lana Clarkson, Spector went on trial again in Los Angeles in Nov. 2008. Some of the facts are clear: An inebriated Spector met Clarkson at a late night club and she accompanied Spector to his large home in a limo. Shortly thereafter, a gun was fired and Clarkson was dead. Spector is the only person who may know exactly what happened, and he did not testify at the first trial and presumably will not do so in the retrial. The prosecution contends that Spector, who owns a variety of guns, shot Clarkson in a drunken rage after she refused to sleep with him. The defense contends that Clarkson was depressed, got hold of one of Spector's guns, and committed suicide.

No matter what version of the story is accurate, it is sad and tragic. One type of evidence, however, relates squarely to the issue of what constitutes a fair trial. A long-standing rule of trial forbids prosecutors from offering "character evidence," or evidence offered in order to attack defendants' character. The rule is epitomized by the familiar phrase that "we judge the act and not the actor." The no-character-evidence rule forbids prosecutors from offering evidence of defendants' past crimes and other misdeeds, simply to show that "the defendant is a bad guy and is just the sort of person who would have committed the charged crime."

Despite this general rule, the judge in Spector's first trial allowed the prosecution to call women to testify that a drunken Spector had assaulted them with guns, usually following their refusals to sleep with him. (The assaults stopped short of actual gunshots.) The judge in the retrial will probably allow the jury to hear the same evidence. 

Does evidence of Spector's prior assaults constitute character evidence?  If so, the judge should not allow the jury to hear the evidence. However, the rule barring character evidence is subject to a number of exceptions. The exceptions are called "non-character grounds of admissibility." For example, if the defendant's prior misdeeds are unique and nearly identical to a charged crime, the judge may allow evidence of prior misdeeds on the theory that they are not admitted to show the defendant's character, but rather to prove that all the acts were committed by the same person. Even if a defendant's prior misdeeds are neither unique nor identical, a judge may allow a jury to hear of them as evidence of a defendant's intent or motive.

The issue of whether prior misdeeds constitute character evidence and are therefore inadmissible, or are admissible on a non-character theory, can be one of the most important decisions a trial judge has to make. Prior misdeeds have the potential to strongly and unfairly bias a jury against a defendant. At the same time, a judge's failure to recognize a legitimate non-character ground of admissibility denies the prosecution legitimate and often powerful evidence of guilt.

In Spector's retrial, lacking eyewitnesses, the prosecution no doubt hopes to persuade the jury that Spector's prior assaults constitute strong evidence of guilt.