Archive for May 6, 2010
Frankly arresting
May 6th
[W]hen the Fourth Amendment demands a factual showing sufficient to comprise `probable cause,’ the obvious assumption is that there will be a truthful showing” (emphasis in original). This does not mean “truthful” in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily. But surely it is to be “truthful” in the sense that the information put forth is believed or appropriately accepted by the affiant as true.
Justice Blackmun, in Franks v. Delaware, quoting Judge Frankel in US v. Halsey. Franks, of course, permits a defendant to challenge the veracity of the statements in a search warrant. If he makes a substantial showing that the affidavit contains intentional falsehoods or material omissions, then he gets an evidentiary hearing to prove..umm..that there are falsehood or misrepresentations or omissions in the affidavit.
But Franks applies only to search warrants. What of the scenario where the officer intentionally lies to get a judge to sign a warrant for an arrest? There has to be judicial review of an arrest warrant and a finding of probable cause. But since we know officers lie, what if an officer lied to get a person arrested? Is there any remedy for that? I’ve been asked this question more than a few times over the last month and was a topic of discussion on the local listserve today, so I figure it’s about time I write a post on it.
There is a remedy, sort of. It’s more of a hollow remedy. In State v. Dolphin, the Connecticut supreme court, without explicitly stating so, applied the Franks analysis to an arrest warrant. As with the search warrant, a defendant attacking the validity of an arrest warrant must prove by a preponderance of the evidence that the falsehoods contained in the warrant, or the material omissions would defeat probable cause:
Prove the defendant’s bad character, not the crime
May 6th
Let’s play a game. I will give you two quotes, both on the same issue. One is from an erstwhile liberal northeast state, the other from a state in “flyover country”. You guess which is which.
Compare:
Nonetheless, we recognize that crimes of a sexual nature are unique and distinct from crimes of a nonsexual nature because they often are “committed surreptitiously, in the absence of any neutral witnesses” and exhibit an “unusually aberrant and pathological nature . . . .” State v. Merriam, [citation]. Accordingly, we conclude that evidence of uncharged misconduct properly may be admitted in sex crime cases under the liberal standard, provided its probative value outweighs its prejudicial effect, to establish that the defendant had a tendency or a propensity to engage in certain aberrant and compulsive sexual behavior.
with:
that which makes the evidence more probative—the similarity of the prior act to the charged act—also makes it more prejudicial. As we explained in Reynolds, where a prior bad act is “similar to the incident in question, ‘it would be extremely difficult for jurors to put out of their minds knowledge that the defendant had assaulted the victim in the past and not allow this information to consciously or subconsciously influence their decision.’ ” [citation] (quoting State v. Henderson, [citation]). [Statute] violates the due process clause of the [State] Constitution as applied in this case because it permits admission of prior bad acts against an individual other than the victim in the case to demonstrate general propensity.
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