Category Archives: criminal law principles

The Constitution is a wet blanket

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The Constitution was intended to be many things: a guide, a charter, founding principles and at the very least a set of instructions for those that sought to build a just and fair country from the ashes of rebellion.

What it was never intended to be was a blanket, and a wet one at that. Unfortunately, state Sen. Tim Burchett, R-Knoxville, TN (hey! stop rolling your eyes) didn’t get that particular memo.

So, in his Tennesseean way, he has introduced a bill making it a felony for criminal defense lawyers to make “unproven insinuations” about crime victims during the course of a trial.

Lawmakers said it isn’t fair for attorneys to try to make criminals out of victims during a trial. However, some attorneys believe this notion is unconstitutional.

The discussion for the new law came about after a couple in Knoxville was tortured and killed in 2007. The parents of Channon Christian listened to the graphic details in court last year and said defense attorneys insinuated their daughter used drugs.

“They criminalize the victims. They are in the grave. They have no defense,” said state Sen. Tim Burchett, a Republican from Knoxville.

Continue reading →

Reconfiguring terms

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It really grinds my gears when I hear lay people (read: tv and movie writers, newscasters, media, your mother, my mother) use the term technicality to describe a violation of some Constitutional right. As in: “The judge threw out the case because of a bad search or something”, “The guy kills a cop and he gets off on some technicality?” or “He was so guilty, but his lawyer got him off on some technicality”.

So here’s my proposal. Let’s start replacing real phrases for the meaningless and incendiary “technicality”. For example, a search that violates the 4th Amendment protection against unreasonable searches and seizures shall henceforth be called “police misconduct”.

A conviction that’s reversed because the prosecutor “forgot” to turn over potentially exculpatory information should be called “prosecutorial dishonesty”.

A case that’s dismissed for lack of probable cause should be called “fabrication of evidence” or “prosecutorial bloodlust”.

“The judge threw out the case because of police misconduct” sure has a better, more truthful ring to it.

Any more ideas?

A conjoined criminal enterprise

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nocaptionthistime

If a conjoined twin commits a crime, does his counterpart get punished too? That’s the question posed to Slate’s Explainer and in classic lawyer fashion, the answer is: who the hell knows.

At first blush, it would seem terribly unfair and unconstitutional: you punish the guilty and seek to avoid punishing the innocent. Assuming that we know which one of the twins committed the crime, would it be feasible to punish that person – via incarceration in this hypothetical – and not the other? It would, of course, be physically impossible to do so.

The brilliant minds at work across the internets who have been wrestling with this question since Slate’s piece was published offer some ways to also convict the innocent twin: accessory, co-conspirator, violation of a good samaritan law, so as to justify the inevitable imprisonment of that originally innocent person. Continue reading →

The objection’s on the other foot

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An interesting and ironic-chuckle-inducing opinion from the Colorado Court of Appeals (via Volokh), where the trial court granted a mistrial in a criminal case. The defendant had been charged with assaulting his estranged wife and one of her friends, with threatening the wife, and with disturbing the peace.

As some of these prosecutions go, there was a defense. The defense was basically that the wife was a liar and would do anything to gain leverage in a contentious custody battle involving the couple’s infant son.

At the beginning and again at the end of opening statement, defense counsel told the jury of the defense contention that the wife would “do anything,” including making false claims against defendant, to keep custody.

The wife was the first witness against defendant. Defense counsel began cross-examination by asking several questions about the then-ongoing marriage dissolution and child custody proceedings. The prosecution objected – stating “we’re here on a criminal trial not on the divorce case” – but the court overruled the objection and allowed this line of questioning to continue. While allowing defense counsel “a little bit of latitude” in this area, the court did urge counsel to “cut to the chase.”

Further questioning established that the wife had taken the couple’s son when she left defendant (before the nightclub incident) and the courts were deciding custody. Two questions followed:

Q. You know that [defendant] is from Africa?

A. Yes.

Q. You know that if he is found guilty of this he’ll be deported? The prosecution objected before the second question was answered, stating it was “completely improper to bring that up in this proceeding.” The court promptly ordered a recess.

Outside the jury’s presence, the prosecutor moved for a mistrial. He argued the jury had been “irrevocably tainted” by questioning that was “a ploy to invoke sympathy for the defendant” and amounted to “probably the worst violation [he had] ever seen.” Defense counsel responded that the question went to the “heart of our defense” and defendant was constitutionally entitled to ask it. Counsel proffered that she had spoken with defendant’s immigration attorney, that this assault conviction would lead to deportation, and that the wife “knows all of that.”

The trial court then granted the prosecutor’s motion for mistrial (yes, I did not type that incorrectly), while “vehemently disagreeing” with defense counsel (seems that this judge has learned from my tips for objections). Continue reading →

The fruit of the poisonous confession

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fruit of the poisono---oh nevermind

We at this blog, and as a consequence you as an observant reader, have known for quite some time now that false confessions are an underrated scourge in the world of wrongful convictions. Some 15-20% of all exonerations have seen the original convictions brought about by these false confessions. The causes of false confessions have been explored before: mental acuity, extremely long interrogations, psychological manipulation and outright lies.

A new paper soon to be published by Saul Kassin – one of the leading experts on false confessions – and others does a tremendous job of highlighting the history of the law on confessions, their admissibility and challenges to these confessions in US and UK courts. The paper is notable for three reasons: 1) It lays out this legal history, the current state of the research and the history of the development of this research in detail, 2) It offers some reform proposals and most interestingly 3) it posits that a false confession can have an adverse effect on how the jury perceives the remaining evidence in a case. For all of these reasons, it is an absolute must read for all criminal defense lawyers and even those prosecutors who are driven by the interests of justice.

What I want to do in this (extremely lengthy) post is to highlight some of the important and relevant points of the paper, but let me assure you: nothing I write here will be an adequate substitute for you actually reading the paper. It is that good and that important.

The problem with confessions using our current models starts at the beginning: with police interrogation. As opposed to the UK, which uses a “fact-finding” model of interviewing suspects, US police departments for the most part use the “confession” model. The goal of most interrogations in the US is to confirm the suspicion of the interrogator by obtaining a confession. These “trained” interviewers rely essentially on hunches, which are based on flawed beliefs of body language:

Often, however, it is based on a clinical hunch formed during a preinterrogation interview in which special ‘‘behavior-provoking’’ questions are asked (e.g., ‘‘What do you think should happen to the person who committed this crime?’’) and changes are observed in aspects of the suspect’s behavior that allegedly betray lying (e.g., gaze aversion, frozen posture, and fidgety movements). Yet in laboratories all over the world, research  has consistently shown that most commonsense behavioral cues are not diagnostic of truth and deception (DePaulo et al., 2003). Hence, it is not surprising as an empirical matter that laypeople on average are only 54% accurate at distinguishing truth and deception; that training does not  produce reliable improvement; and that police investigators, judges, customs inspectors, and other professionals perform only slightly better, if at all—albeit with high levels of confidence (for reviews, see Bond & DePaulo, 2006; Meissner & Kassin, 2002; Vrij, 2008).

The most famous of police interrogation techniques is the Reid Nine-step:

A nine-step process then ensues in which an interrogator employs both negative and positive incentives. On one hand, the interrogator confronts  the suspect with accusations of guilt, assertions that may be bolstered by evidence, real or manufactured, and refuses to accept alibis and denials.  On the other hand, the interrogator offers sympathy and moral justification, introducing ‘‘themes’’ that minimize the crime and lead suspects to see confession as an expedient means of escape.

Compounding the problem of these questionable police interrogation techniques is the apparent contradiction in US courts’ treatment of confessions in the criminal justice system: on one hand, courts recognize the awesome power of a confession and yet on the other seem indifferent to the voluminous research that tends to show that most techniques are coercive and unreliable. Originally governed by the corpus delicti rule, confessions are now viewed through the lens of the “trustworthiness” rule, after Opper v. United States (for a CT discussion see State v. Hafford). This rule is intended to permit the admission of only those confessions that can be independently corroborated. However, in practice, the rule doesn’t provide the benefits it seeks to: Continue reading →

Preempting peremptories

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As I’ve noted before, there are times when I’m staring at a story, thinking about writing a post, when a few days later I come across something else that ties in nicely with the first. I have now concluded this is because of my unusually high midi-chlorian count and the Force is speaking to me.

Nevertheless, a few days ago, I noticed this news article from Mass that reported that the Mass Bar Ass’n is forming a task force (yeah, one of those) to examine the use and efficacy of peremptory challenges:

Chairing the task force is Richard P. Campbell, a bar association vice president and the founder and chairman of Campbell, Campbell, Edwards & Conroy in Boston.

Campbell, [...], said some members of the Trial and Appeals courts and even academics, such as law professors, are questioning the usefulness and relevance of the peremptory challenges.

Right on cue, I stumble across this new academic paper titled “Modeling the Effects of Peremptory Challenges on Jury Selection and Jury Verdicts”, which argues essentially that peremptory challenges are useless and states should eliminate them. From the summary: Continue reading →

A vex at your door: revisiting FL’s stand your ground law

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Back in 2005, when this blog was in its infancy, I wrote a few posts about a new FL law which removed the duty to retreat before employing deadly force. The law, in essence, expanded the concept of the “castle doctrine” to, well, everywhere:

(3)  A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

I was concerned at the time with the implications of such legislation, both for lawyers and on law and order in general. Two years later, when Texas did away with the duty to retreat, I posted my concerns again and used the phrase “free for all”. I received some criticism at the time and most of the comments echoed one common sentiment: you show up in my house; I kill you.

Being the peace loving, pot smoking, Grateful Dead listening type, this open invitation to engage in needless violence perturbed me, but I was assured by smarter people that it was not a concern. Now, 4 years later, it seems as though I’m not the only one vexed by such legislation. As this article from the Miami Herald illustrates, more than just a naive blogger from CT is vexed by the law and what to do with it.

I think this would be an appropriate time to state that as a criminal defense lawyer, I’d love this law. That a fear of imminent physical danger serve as a bar to prosecution would be a godsend from the purely adversarial scenario. But as a resident in our communities, I’m not sure that this is still a good idea. To remove an incentive to de-escalate conflict and prevent needless violence doesn’t strike me as very smart or desirable.

No one disputes that Maurice Moorer fired more than a dozen bullets to kill a rival sitting in a car in West Little River last year.

Moorer claimed self-defense. Police detectives begged to differ.

But prosecutors say they were forced to drop a murder charge against Moorer because of the controversial 2005 ‘Stand Your Ground’ self-defense law that broadened a citizen’s ability to use deadly force. “There is no law now that we can point to say Moorer should have backed off, that he should have avoided this,” said Miami-Dade Assistant State Attorney Kathleen Hoague, who says the new law “cheapens human life.”

I think I would agree with her. None of the people who responded to my posts back in 2005 saw this as encouraging vigilantism or resulting in a large number of acts of violence. But as the cases in Florida demonstrate, there are more than a few: Continue reading →