The Rap Sheet

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.  

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.

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.

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.    

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?

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. 

Continue reading "Cross-Examination: Lessons From the Movies" »

For prosecutors of domestic violence cases, one of the biggest frustrations has been the frequency with which women refuse to testify against their abusers. Until 2004, prosecutors were often able to convict perpetrators of domestic violence even when women refused to testify by offering into evidence the women's post-abuse descriptions of attacks to police officers. Even though these statements to police officers were hearsay, they were admissible as evidence so long as judges deemed them to be sufficiently reliable.

The case of Crawford v. Washington, 541 U.S. 36, decided by the U.S. Supreme Court in 2004, made it almost impossible for prosecutors to convict domestic violence perpetrators based on women's hearsay descriptions of abuse. Interpreting the "Confrontation Clause" of the Sixth Amendment to the U.S. Constitution, Crawford decided that if hearsay statements are "testimonial" (as statements to police officers almost always are), they are inadmissible in evidence unless defendants have the opportunity to cross-examine the women who made them in court. Thus, in most cases in which abused women refuse to cooperate with prosecutors, charges against alleged perpetrators of domestic violence must be dismissed.

Crawford and later cases suggested one possible route making women's hearsay descriptions to police officers admissible as evidence: If a prosecutor can show that a perpetrator's intimidating behavior (such as physical abuse, threats, etc.) resulted in the woman refusing to testify, then the perpetrator could be held to have forfeited his right to cross examine. If forfeiture occurs, the woman's hearsay description of the perpetrator's abuse is admissible in evidence even if the woman fails to testify, and the perpetrator might be convicted based on the hearsay.

To the dismay of domestic violence prosecutors, in the 2008 case of Giles v. California, 554 U.S. ___, the U.S. Supreme Court made it more difficult to prove that domestic violence perpetrators forfeited their right to cross-examine. According to Giles, intimidating behavior constitutes forfeiture only if the perpetrator carried it out for the purpose of preventing a person from testifying.

Continue reading "Domestic Violence Cases Confront the Constitution" »

Is a defendant mentally competent to stand trial? How credible is an eyewitness' identification of the defendant as the perpetrator of a crime? Did the DNA testing lab correctly perform the analysis linking the defendant to blood found at the crime scene? Is this the defendant whose voice is on the recorded bomb threat?

For answers to these and myriad other questions that arise daily in criminal trials, judges and lawyers typically turn to expert witnesses. To jurors, however, the answers are often more mystifying than enlightening. It's not just that the subjects that experts testify about are unfamiliar and complex. Often, the reason is that each side -- prosecution and defense -- presents its own expert, and the experts flatly contradict each other. Had Sir Isaac Newton been writing about the U.S. trial process rather than physics, he might have written: "For every expert opinion there is an equal and opposite expert opinion."   

The problem is that experts are part of the adversarial trial process. Each party hires its own expert, who can be counted on to deliver opinions that support the party paying the expert's fee. Indeed, if one or two experts disagree with a party's position, the party can shop around for one who will sing the correct song in court. No wonder jurors often have to throw up their hands and side with the expert "who looks and sounds like the experts on TV courtroom programs."     

Various solutions to the problem of trials turning into Battles of the Partisan Experts have been proposed. A frequent idea is for judges to appoint so-called Impartial Experts. But attorneys are loath to give judges control over crucial aspects of their cases, and anyway, experts can't be counted on to be any more impartial than the rest of us. The reality is that the answers to scientific and technical questions are often uncertain and even unknowable, and experts can disagree without fudging the truth as they perceive it.

"Hot tubbing" may be the way to go -- developed in Australia, hot tubbing consists of having opposing experts testify together, in conversation with each other. Hot tubbing is consistent with many current courtroom procedures, such as each side retaining its own experts. And lawyers and judges are able to put questions to the experts as they testify. But while they are in the figurative hot tub, experts can respond directly to each other, and often can find some common ground.  As a result, jurors may better understand their testimony and arrive at more educated verdicts.

Whether hot tubbing will catch on here in the U.S., and its effectiveness for advancing the truth-seeking function of trials, is uncertain. However, solutions to the perceived problems inherent in partisan expertise have been hard to come by, and hot tubbing is an alternative that holds promise.