The Rap Sheet

Bitemark Evidence Needs Orthodontia

2008-12-18T20:44:47Z

Bitemark evidence is a tool that prosecutors sometimes use to connect defendants to crimes. The testimony of a bitemark expert (who carries the fancy, jury-impressing title of "forensic odontologist") usually goes something like this: "I compared the teethmarks found on the victim's right arm with the defendant's dental prints. In my opinion, a match exists; the defendant was responsible for the teethmarks."

Though judges routinely admit bitemark testimony, recent studies have undermined its reliability. Unlike the generally-accepted principle that fingerprints are unique, the uniqueness of dental patterns has never been established. Moreover, bitemark experts usually have to base their conclusions on fragmentary patterns -- say, the marks left by a few teeth. Finally, the proficiency of bitemark experts is uncertain because they have never been scientifically studied. Thus, it's no surprise that a number of defendants who have been cleared by DNA analysis after they have begun serving their sentences were convicted partly on the basis of mistaken bitemark evidence.

In the future, criminal defense attorneys will no doubt more aggressively challenge the admissibility of bitemark evidence. As "gatekeepers," judges have to remember that prosecutors who want to rely on bitemark evidence have the burden of establishing the reliability of its underlying principles. If they cannot do so, judges should disregard the fancy trappings of forensic odontologists (advanced degrees, publications, professional associations, good molars) and tell them to bite the dust.

The U.S. Supreme Court Considers Whether the Constitution Requires Forensic Lab Experts to Testify at Trial

2008-12-10T21:02:26Z

In the 2004 "Crawford case", the U.S. Supreme Court interpreted the Sixth Amendment's Confrontation Clause to require prosecutors to present live witnesses rather than hearsay whenever the hearsay was "testimonial." The decision has given rise to lots of commentary and court opinions (many of them conflicting) about whether particular types of hearsay are testimonial. For example, if a domestic violence victim makes an emergency call to a 911 operator, the victim's statements are likely not to be testimonial, meaning that prosecutors can, if necessary, offer a transcript of the call into evidence if the victim refuses to come to court and testify. On the other hand, if the domestic violence victim talks to a police officer once the emergency is over, the victim's statements are testimonial. If the victim refuses to testify, the prosecutor cannot call the police officer as a witness to testify to what the victim said.

One of the elephants in the Confrontation Clause room is whether lab reports are testimonial. Every day, hundreds of doctors and other technicians conduct autopsies, test substances to determine whether they are illegal drugs, determine the alcohol context of blood or urine, etc. They prepare reports of their findings and before Crawford most courts routinely admitted these reports into evidence at trial under long-established hearsay exceptions for business or official records. But if these reports are testimonial, defendants would have the right to insist that the report preparers testify in person. The ramifications of such a result are potentially huge. If forensic experts have to testify, at the very least trials become longer and lab backlogs will continue to grow because experts who are testifying (or, more likely, waiting to testify) are not conducting tests.

Sometime in early 2009, the U.S. Supreme Court will likely issue an opinion addressing these issues. The case is Melendez-Diaz v. Massachusetts, and the Court heard arguments in the case in November 2008. Forensic lab reports certainly look testimonial in that they are prepared by government officials who usually are aware that they may be offered into evidence at trial. Prosecutors counter that lab reports are not testimonial because they are objective, especially since many of them are simply machine-generated. Prosecutors also argue that if defendants really want report preparers to testify, the defendants can call them as their own witnesses.

The outcome of Melendez-Diaz is likely to have a huge impact on the day-to-day functioning of the criminal courts. My prediction: Since the Supremes have been Confrontation Clause-happy, they will rule that most lab reports are testimonial.

Convicting Date Rapists and Domestic Abusers: Women May Be Their Own Worst Enemy

2008-12-01T21:55:07Z

Date rape and domestic violence are two of the most serious crimes in which the victims are almost always women. Yet the conviction rate of the perpetrators of these violent acts is abysmally low. Unfortunately, the all-too-frequent behavior of the victims of these crimes contributes to the low conviction rate.

As I mentioned in an earlier post, women who have been subjected to domestic violence very often refuse to cooperate with police and prosecutors. For example, they may recant earlier complaints, or simply disappear when their attackers are put on trial. And recent changes in evidence rules make it almost impossible for prosecutors to win convictions unless abused women appear at trial and describe what happened while under oath.

As for date rape, a recent study, as reported in Self magazine, indicates that when a woman has known her alleged assailant for less than 24 hours, 43% of rape trials end with convictions. However, when a woman has known her alleged assailant for more than 24 hours, the conviction rate falls to 35%. By contrast, the conviction rate in so-called "stranger rape" cases (when a woman has had no prior contact with her alleged attacker) is 68%.

What type of female behavior contributes to the low conviction rate in date-rape cases? Often, date rape victims fail to report the crimes immediately to the police, nor do they go to a hospital for a rape exam and toxicology test. Moreover, in date rape situations the women have often been drinking alcohol shortly before the alleged rape occurred. Finally, in some cases, women have even gone out on post-rape dates with their attackers (perhaps hoping for an apology, or to validate their suspicion that they had been raped on the earlier occasion). Needless to say, defense attorneys can emphasize these types of behavior when arguing that there's reasonable doubt that a rape took place.

The victims' behavior that makes it difficult for prosecutors to convict domestic abusers and date rapists may be psychologically understandable. For example, domestic abusers may silence victims with threats of future violence, and date rape victims may be in denial before they are ready to report what happened. Nevertheless, under the glare of the adversary system, these types of behavior are powerful impediments to conviction.

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

2008-11-19T21:27:43Z

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.

Guns for Spouse Abusers

2008-11-12T21:04:25Z

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.

DNA and NIJ Go After Burglars

2008-11-09T18:56:19Z

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.

Phil Spector On Trial for Murder -- Again

2008-11-06T22:44:38Z

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.

Sen. Ted Stevens Finds Appeals Suddenly Appealing

2008-10-30T21:26:07Z

Sen. Ted Stevens, an Alaska Republican Senator since 1968, was convicted by a jury of seven felony charges on Oct. 27, 2008. The felonies all involved corruption. Stevens accepted huge gifts from oil corporations, but never bothered to report them.

Echoing the reactions of multitudes of convicted felons, Stevens immediately proclaimed his innocence and called the jury's verdict unjust. He blamed the verdict on prosecutorial misconduct and vowed that he would get it overturned on appeal. Blah, blah, blah -- so say all the powerful hypocrites like Stevens when they finally get caught.

What's particularly delicious about Stevens' professed faith in the appellate process is its newness. In fact, Stevens wasn't always such a big fan of appeals. Back in the mid-1990s, Stevens voted to limit the right of state court prisoners sentenced to death to appeal their convictions. Isn't it too bad that prisoners sentenced to death don't have the right to vote on Stevens' right to appeal?

Prior to his conviction, Stevens had gained notoriety for championing fiscal conservatism while earmarking huge sums of taxpayer money for pet projects that would benefit big Alaska donors. The most famous of these earmarks was the so-called "Bridge to Nowhere," a ridiculously expensive project that would have reduced the travel time between two sparsely populated villages in Alaska.

Stevens' conviction may indicate that he never quite got that earmark fiasco out of his mind. When he comes up for sentencing in January of 2009, Stevens may find that he has built a Bridge to Prison.

Proposition 6: A Terrible Idea at a Terrible Time

2008-10-16T20:58:54Z

Proposition 6 is a California ballot initiative that deserves overwhelming rejection on November 4, 2008. While a few of its provisions toughen penalties for some types of violent crime, the main effect of the initiative would be to redirect billions of dollars in increasingly scarce state resources to its backers.

Here are six reasons to say no to Prop. 6 on election day in California:

During a period when the state lacks money for basic services, Prop. 6 would require the state to spend a half billion dollars more than it already does for prison space.
The state would have to hire hundreds of additoinal parole agents at a cost of about $125,000 per agent per year. (That figure would be sure to rise.)
Reeking of Hypocrisy Part 1: Henry Nicholas III, the initiative's primary financial supporter, is under indictment for a variety of federal crimes, including backdating stock options and providing drugs and prostitutes for clients.
Reeking of Hypocrisy Part 2: The initiative's legislative sponsors routinely attack and vote against state spending measures, but manage to keep a straight face while pushing for a law that would commit billions of dollars of state money to their pet projects.
Prop. 6 is absurdly anti-democratic. A virtually impossible-to-attain majority of at least 75% of the legislature would be required to alter any of its provisions. The upshot is that legislators who regularly rail against "entitlements" are trying to cement them into state law. I suppose it just depends on whose ox is entitled.
The initiative names Appriss Inc., a single private maker of VINE, a victim notification device, and rewards counties that use VINE. (For information about the company, go to http://www.appriss.com/) Would you be surprised to learn that Appriss is lobbying hard for the initiative's passage?

While Proposition 6 would be a terrible idea at any time, it is a partilcularly terrible in 2008 as the state faces one financial crisis after another. This initiative is a crime, and the best anti-crime message the voters can send is to reject it overwhelmingly.

Voting Rights for Ex-Felons

2008-09-16T19:36:55Z

According to a common criminal justice aphorism, "If you do the crime, you'll do the time." In many states, however, the more accurate version of this aphorism is, "If you do the crime, you'll do the time -- and never vote again." In over 30 states, "ex-felon" is a label that bars people from voting even if they've fully paid their debt to society. Nationwide, over 4 million ex-felons have lost the right to vote. This is a lot of disenfranchised people in a country that has taken up arms and shortened lives in an effort to spread the blessings of liberty to less enlightened countries.

Since members of ethnic minority groups are over-represented in prison populations as compared to their numbers in the general population, the denial of voting rights to ex-felons has racial consequences. Estimates are that in some states, as many as 25% of African-American men of voting age are unable to vote because they are ex-felons.

State-to-state differences with respect to voting rights for ex-felons are an example of how much power states have to develop their own criminal justice practices. In Oregon and Utah, for example, felons can register to vote as soon as they are released from state custody -- even if they remain on parole or probation. In Washington state, by contrast, ex-felons can never vote. Thus, the happenstance of where people commit crimes can greatly alter their post-conviction rights.

Community groups such as ACORN (Association of Community Organizations for Reform Now) and The Western Prison Project are actively involved in efforts to restore voting rights to ex-felons, and their efforts are beginning to pay off. For example, a 2008 change in Florida law restored voting rights to more than 100,000 former felons.

Of course, the fact that greater numbers of ex-felons may be able to register to vote does not necessarily mean that they will. Laws granting voting rights to ex-felons are not self-executing. Ex-felons must be aware that they retain the right to vote and then must follow what may be complex registration requirements. Nevada, for example, recently restored voting rights to a limited number of ex-felons, but ex-felons who want to register to vote must petition the Nevada Board of Pardon and Parole to do so. Thus, community groups that hope to translate the right to vote into actual votes must work not only with state legislatures, but must find ways to inform ex-felons of their right to vote and then encourage them to register and show up at the polls.

Sex Appeal

2008-09-10T19:47:36Z

Charles Dean Hood was sentenced to death in Texas for committing a double murder. ("Hood" is certainly an unfortunate surname for a person facing criminal charges.) On the eve of his execution, Hood may gain a reprieve based on a "sex appeal". Hood's lawyers have uncovered evidence that while Judge Verla Sue Holland was presiding over Hood's trial and D.A. Thomas O'Connell Sr. was assisting in his prosecution, they were carrying on a secret love affair.

If Holland and O'Connell were indeed litigating by day and fornicating by night, they grossly disregarded their ethical responsibilities and wasted a lot of Texas taxpayers' money if Hood (and possibly many other convicted criminals whose cases they participated in) have to be re-tried.

The American Bar Association Code of Judicial Conduct (which admittedly does not have the force of law) admonishes judges not to engage in conduct that "would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired." While this language may be vague and hortatory, certainly the perception (if not the reality) of partiality arises when a judge and a prosecutor are literally in bed together.

As for D.A. O'Connell, Standard 3-1.3 of the American Bar Assoiation Criminal Justice Standards states in part that, "A prosecutor should not permit his or her professional judgment or obligations to be affected by... personal interests."

If the evidence of the affair is accurate, Holland's and O'Connell's behavior is irresponsible and unfathomable. After all, Hood was charged with capital murder, not spitting on the sidewalk. Legal ethics required either Holland or O'Connell to leave the case. Since they did not do so, they apparently felt a greater responsibility to their secret love affair than to their professional obligations. The episode undercuts the claim that while the U.S. system of justice cannot guarantee correct outcomes, it can guarantee a fair process.

O.J. Simpson Meets Jury # 3

2008-09-09T19:03:13Z

The terms "O.J. Simpson" and "jury selection" go together like peanut butter and jelly. In the mid-1990s, one jury decided that Simpson was not guilty of brutally killing his ex-wife Nicole Brown Simpson and her friend Ron Goldman. (Had they had the chance, this group of jurors might also have decided that gravity ceases to exist on Tuesdays.) Shortly thereafter, in a civil trial, a second jury decided that Simpson had killed his ex-wife and Goldman, and held Simpson liable for millions of dollars (of which he has paid little or nothing).

Now Simpson is on trial in Las Vegas, accused (with a co-defendant) of breaking into a hotel room and robbing two sports memorabilia dealers at gunpoint. Simpson admits entering the hotel room, but denies that guns were involved, and also claims that he was only trying to recover personal memorabilia that had been stolen from him.

This is one of those cases in which it may take almost as long to select the jury as to try the case. Simpson's notoriety requires the judge and the attorneys to question potential jurors carefully. During the process called "voir dire," they'll try to eliminate potential jurors who might be inclined either convict or acquit Simpson based on their attitudes stemming from his possible involvement in the deaths of his ex-wife and Goldman. Similarly, they want to eliminate people who might want to get selected for the jury so that they can later go on a TV talk show and chat about their experiences as an O.J. Simpson juror.

It's not necessary to impanel people who can honestly say, "I've never heard of O.J. Simpson." But it should be reasonably possible to find impartial jurors who can honestly say, "I can disregard what I've heard about O.J. Simpson and decide whether or not he is guilty beyond a reasonable doubt of committing the crimes with which he is charged." Right?

A Plea Bargain That Didn't Sell

2008-09-09T17:29:30Z

Almost every criminal case ends with a plea bargain. Prosecutors and defense lawyers agree on defendants' sentences, and judges make them official by accepting the agreed-upon terms. But in the high-profile case of Henry Samueli, the judge's refusal to accept a plea bargain serves as an important reminder that judges still have ultimate control over sentencing.

Samueli was a principal in Broadcom, a company that made a fortune by designing and selling computer chips. Samueli and other greedy Broadcom executives have been accused of inflating their already huge earnings by backdating stock options and then lying to the Securities & Exchange Commission about what they did. In the summer of 2008, Samueli pleaded guilty to lying to the SEC, but the guilty plea would stand only if the judge accepted the plea bargain that Samueli's lawyers worked out with federal prosecutors. Samueli's deal: He would not go to prison, but instead would be put on probation and pay a $12 million fine to the government.

Federal judge Cormac Carney said, "No deal." To the judge, Samueli seemed to be buying his way out of prison by paying a far greater fine than the judge could impose after a trial. Also, the agreement failed to require Samueli to cooperate with prosecutors in cases involving other Broadcom executives.

Samueli can now withdraw his guilty plea and go to trial. If so, the jury will never be told that he had at one point tried to end the case by pleading guilty. More likely, the lawyers will try to work out a plea bargain that Judge Carney will accept. Samueli undoubtedly hopes that the judge will say, "You've got a deal" -- even if a revised agreement allows Samueli to avoid going to prison.

Speaking of options, you should know that plea bargains don't always give criminal defendants the right to withdraw guilty pleas should judges refuse to go along with their terms. A prosecutor may say something like, "I'll recommend to the judge that you not serve time in jail, but the sentence is up to them, and your guilty plea is final even if the judge refuses to follow my recommendation." In this situation, the defendant cannot not withdraw the guilty plea if the judge imposes a jail sentence.

Cross-Examination: Lessons From the Movies

2008-09-03T20:57:30Z

Cross-examination is rarely the make-or-break phase of a criminal trial. But you wouldn't know that if you've seen a lot of courtroom movies and TV shows. Highly dramatic and entertaining though they might be, movies and TV tend to exaggerate the importance of cross-examination in the outcome of criminal trials. Unlike Perry Mason, actual cross-examiners rarely wrest confessions of guilt from witnesses, jurors, or courtroom spectators!

Watch closely, however, and you may be able to learn what good cross examiners should -- and shouldn't -- do. If you're looking for a model of good cross-examination techniques, you can't do better than the wonderfully funny film My Cousin Vinny. In the film, Vinny's (Joe Pesci's) client (his cousin) is charged with murdering a convenience store clerk. A witness for the prosecution testifies that he saw the defendant enter the store and then leave 5 minutes later. The witness is sure that no more than 5 minutes elapsed, because this is how long it took the witness to cook his breakfast grits.

On cross-examination, Vinny wants the witness to admit that grits need to be cooked for 20 minutes before they are ready to eat. But before confronting the witness with this fact, Vinny carefully uses a questioning technique called "closing the doors". Vinny realizes that the witness' 5-minute estimate might be correct -- if the witness likes under-cooked grits, or if the witness used "instant grits". So Vinny "closes the doors" to these possible explanations before asking the witness to admit that it took him 20 minutes to cook his grits on the day of the murder.

Vinny first asks the witness how he likes his grits -- "regular, creamy, or al dente?" The answer to this seemingly silly question ("Just regular, I guess") shows that the witness cooks his grits the same way everybody else does. Second, Vinny asks the witness, "Do you use instant grits?" When the witness replies, "No self-respecting Southerner uses instant grits," Vinny has closed the door to the other possible explanation the witness might offer to justify his 5-minute time estimate. When Vinny then asks the witness to admit that grits need 20 minutes of cooking time, the witness has to take back his 5-minute estimate and concede that Vinny is correct.

For a model of what not to do on cross examination, watch prosecutor Claude Dancer (played by George C. Scott) fall flat on his face in the classic courtroom drama, Anatomy of a Murder.

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Palant stammers that "Barney Quill was my..."

Dancer then asks the fatal question that he does not know the answer to: "Barney Quill was what, Miss Palant?"

Compelled to answer, Mary Palant reveals her long-held secret: "Barney Quill was my father." His scorned-lover accusation shot to pieces along with his case against the defendant, Dancer meekly retreats to counsel table, murmuring, "No more questions."

While trials may not usually be as exciting as those depicted in films like My Cousin Vinny and Anatomy of a Murder, films can often teach you quite a bit about to to be an effective criminal trial lawyer!

(And, my book Reel Justice: The Courtroom Goes to the Movies, discusses the legal and historical accuracy of more than 200 courtroom films. If you're looking for a good movie to rent, check it out!)

"Smart" Fingerprint Technology

2008-09-03T19:34:30Z

Forensic testimony based on fingerprint comparison is a familiar part of many criminal trials. Based on the generally-accepted principle that no two people (even twins) have identical fingerprints, experts often tie suspects to crimes through providing testimony that the suspect's fingerprint matches the prints found at a crime scene.

Now, with the help of a new laboratory technique, forensic experts may be able to "read" fingerprints and identify substances embedded in them. The laboratory technique consists of a process called "mass spectrometry," and as a result, fingerprints may serve as suspects' "chemical signatures". For example, an expert may be able to testify that "the person who left this fingerprint had been touching cocaine (or a poison, or an explosive)." Such testimony would do more than tie a suspect to a crime scene: It would also help to explain the suspect's motive for being at the scene. For instance, assume that Bob is charged with murder-by-poison. At trial, forensic expert testifies, "I found traces of the same poison in fingerprints found at the crime scene, and in my opinion, the fingerprints are identical to those of Bob." Such testimony does more than prove that Bob was at the crime scene -- it also helps to show how Bob committed the murder.

Because of popular TV crime shows, such as C.S.I., jurors have generally come to expect and be favorably impressed with forensic evidence. "Smart" fingerprints, which may indicate not only who was at a crime scene but also their purpose for being there, is a potentially powerful prosecutorial tool.