Category Archives: evidence

Even judicial opinions spin their facts (updated)

[Update below] What, really, is a fact? The word, which seemingly should have one simple definition, in fact does not.  For example, in science, a “fact” is an observation that has been repeatedly confirmed and for all practical purposes is accepted as “true.” In law, on the other hand, a “fact” is what 6 people say it is. In other words, it’s not a validation of what actually happened, but what reasonably could have happened. A fact is also determined based on a rather narrow, limited universe: some things aren’t taken into account and conclusions are made by ignoring other, contradictory events.

One example of this is if you read any appellate court opinion by a Connecticut court written in the last decade or so, almost all of them will have a recitation of the “facts” that begins with the following sentence:

The jury could reasonably have found the following facts

Invariably, this recitation is skewed toward the interpretation of those “facts” that supports the court’s eventual decision. If you need to uphold a questionable stop of a car on the road, highlight the helpful police officer’s testimony while downplaying or even ignoring frame-by-frame video evidence.

Two days ago I wrote a post about a juror who demonstrated that she believed the defendant to be guilty even before the presentation of evidence and who was “bullied” into stating that she could be fair despite those prejudicial beliefs. At the time i wrote the post I didn’t read the opinion. A helpful commenter has provided a link to the opinion. It perfectly illustrates the point I’m making here. First, let’s remember from my post that the transcript revealed that the juror made several assertions that she would not be able to be fair:

The prosecutor then asked the juror: “You haven’t heard any evidence. How would you vote?”  Juror 112 responded, “I would have to vote guilty.”

The judge asked if she could return a verdict of not guilty if the government couldn’t prove it’s case beyond a reasonable doubt.

“I don’t think I would be able to,” the juror replied.

The prosecutor tried again: “Let me ask you this flat-out. Let’s say the victim takes the stand [and] you flat-out don’t believe her. In fact, you think she’s lying. You look at her [and conclude] ‘I don’t believe a word coming out of her mouth.’ Are you going to convict this man anyway?”

Juror 112 responded before the first witness in the case had been called, “That depends. I still feel he was at fault.”

So let’s go take a look at the opinion. Find the Control and F keys on your keyboard. You’re going to need them. In the opinion, the judge explains that the trial court, before the evidence, explained to the panel that the case involved allegations of a lewd act upon a child, a lewd act upon a child under age 14, and several counts of forcible rape involving two victims, plus an allegation that defendant committed the rape offenses against more than one victim. At the time jury selection occurred, both the prosecution and the defense questioned the jurors including Juror 112, who did not indicate any problem with judging the case fairly.

Then it starts getting messy:

Seeing is disbelieving: in spite of video edition

cafe-wall-line-illusion

This is not a trick question: what do you think has superior recall of the facts – your memory or a video of the incident?

No prizes for guessing correctly. But despite that, 5 judges in the State of Indiana went with their imaginations discretion in ruling [PDF] that a car had actually swerved into oncoming traffic despite the fact that it had not, and thus a police officer was justified in pulling the driver over for the horrifying crime of having a BAC level of 0.09.

Around 1:00 a.m. on October 15, 2011, Deputy Casey Claeys of the Elkhart County   Sheriff’s Department was following another vehicle down County Road 4. Deputy Claeys later   testified he saw the vehicle “drive off the right side, which was the south side of the road, twice.”

Okay, so that’s what the cop says. What does the video say?

[T]he trial court stated it “reviewed the video on approximately ten occasions and cannot conclude from the video that the defendant’s vehicle actually left the roadway . . . but it does show the vehicle veering on two occasions onto the white fog line.”

Are you laughing or crying? I can’t tell. I’m doing both. So the video doesn’t support the proposition that the car left the roadway. Remember the officer said that it had veered off the road. Veered. Off. The. Road. Meanwhile the video shows that maybe it touched the white line.

So how do you reconcile that? Magic and the power of being a judge:

The trial court noted, however, that it was “quite possible that the officer’s actual visual observation of the defendant’s vehicle was superior to the video camera in his car.”

Got it? The officer’s memory is that much better than a video recording of the event.

This is important because if the car hadn’t actually left the roadway or god forbid, veered across a line for a second, the officer wouldn’t have any reasonable suspicion to make a traffic stop, which led to the arrest.

They need some reason – a traffic violation, say – to pull you over. Then when they notice you making ‘furtive movements’ and describe your eyes as ‘glassy’, they can arrest you for being drunk.

But this? This really just obviates the need for recording, because if the video can be superseded by an obviously biased officer’s “recollection” of the incident, then they can claim that their recollection is that you were driving with your windows down, AK-47s blasting into the air while screaming “fuck tha police” and taking exaggerated swigs of Crystal while simultaneously pissing on a photo of George Washington and wiping your ass with the American flag.

That scenario is just about as absurd as what the judges ruled in this case.

But no, you keep believing in the system.

Update: Scott wrote about this earlier in the week.

Can the prosecution prevent you from giving discovery to a defendant?

In January 2010, new rules were enacted [PDF] in Connecticut ostensibly in an effort to do away with problematic “open file”1 policies of prosecutors and to ensure that all individuals charged with crimes in the State of Connecticut had ready, Constitutionally required access to the evidence the prosecution claimed to have2.

As I wrote in January 2010:

Each court here in the State was its own fiefdom prior to this change. In some jurisdictions you’d get all discovery on the first court date, without even having to ask, and in others the only way you’d get to see a police report is if you sat in the prosecutor’s office and read it – and perhaps copied it by hand – while they stood over your shoulder. Some jurisdictions would give you whatever you wanted and others wouldn’t give you what you were entitled to.

The system was a mess. Prosecutors in certain jurisdictions kept two files: one their public “open file” and another, their real file. Guess which one had all the relevant documents and information in their possession and which one didn’t.

This is an issue of Constitutional importance because integral to our system of justice is the right to notice: to be informed of and aware of the charges, allegations and supporting evidence so that one may properly defend against them.

However, even with the enactment of these rules making uniform the disclosure of discovery, there was a big problem that was overlooked as part of the compromise. The discovery rules prohibit giving copies of the documents, reports, statements and records to the person with the greatest individual stake in the outcome of the case: the accused.

In order for the man charged with the crime to be able to get his own copy of the allegations and peruse them at his own leisure, the prosecutor must permit and barring that, a judge.

Many in the defense bar argued back then that this was problematic and once again last week, the problem erupted again.

Unsurprising to most, the practice of permitting defendants to have a copy of their own discovery is just as arbitrary and haphazard as it was before the rule changes.

Some prosecutors office routinely grant the requests and some offices routinely deny. Some judges grant in all cases while some judges change their tune depending on the position of the prosecution and even then not always so.

So we end up with a patchwork system of discovery denial and defendants throughout the state have different access to their own discovery than their cell mate, all depending on which jurisdiction they’re in.

It is incredibly hard to explain to a person accused of serious crimes by the state that:

  1. You are in possession of witness statements that implicate him and police reports that tie it all together;
  2. But you cannot give it to him.
  3. He can read it in front of you, but he cannot take it with him.
  4. He must rely on his memory in a correctional institution to recall all the details and to become well-versed with his own case, because he is not allowed to have any participation in the defense of his liberty and freedom;
  5. Especially when his cell-mate has 3 boxes of legal materials.

As numerous ethics opinions and judicial decisions have affirmed, the file and everything it contains does not belong to a lawyer. It belongs, unmistakably, to the individual party. Lawyers aren’t even parties to the criminal case.

There is no legal basis for withholding these documents from the individual, who must feel like he is intentionally being kept in the dark and blocked from the process of justice.

If the client demands of you, the criminal defense attorney, that he receive a copy of his file, I am unsure that you can refuse. It certainly would be a greater concern of mine that I might be held in violation of the rules of professional conduct than a judge or prosecutor getting upset with me that I flouted a Practice Book rule.

Of course, the question – just as with this scenario – is whether anyone will make that stand or will there always be some compromise worked out?3

It is a ridiculous burden to place on criminal defense attorneys and yet another sign of how the business of our justice system is conducted in full view of and in full neglect of the individual charged with a criminal offense.

Restoring sanity to child sex cases

For as long as I can remember, there has been one fundamental truth in Connecticut if you are charged with a crime involving a sexual assault: you’re screwed1.

There’s the “liberal” standard of admitting prior sexual assault allegations in a case involving sexual assault, there’s straight up “once a sexual assault criminal, always any other type of criminal” and the almost unhindered admission of any type of “expert” testimony of an “expert” who claims to be an “expert” in the area of child sexual abuse [read: anecdotal evidence predicated solely on confirmation bias] despite a somewhat half-hearted effort to walk that back just ever so slightly and always distinguishably2 and then there’s the only-salvageable-by-judicial-fiat-Risk-of-Injury-statute, which is probably the most dangerous statute for due process and individual liberty and freedom that exists in Connecticut.

Your phone will protect you only as much as the courts let it

iphone-5s-fingerprint-scanner-970x0

Press here to turn over all your secrets1.

The other day Apple announced its latest iPhone which would come equipped with some sort of biometric fingerprint scanner [warning: autoplaying video], permitting users to unlock their phones with simply a touch.  iTouch, it’s called. Putting aside the obvious jokes, there was quite a bit of stir caused by this announcement on the internet, given the current spotlight on privacy invasions. This, some argued, was the end of everything: fingerprint on the iPhone means fingerprint to Apple, which means fingerprint to the Federal Government, which means fingerprint to NSA, which means…something. I don’t know what exactly.

It’s understandable. The NSA apparently can use the apps we put on our phones to hack into our phones or something. It’s a terrible invasion of privacy. Except the fingerprint as “Open Sesame!” is a bit flawed because Apple explicitly stated that the fingerprint was encrypted and stored only on the chip and not uploaded to the cloud or the internet or wherever. So the argument then becomes, if the government is going to hack into your phone to get your fingerprint, aren’t they in there already? What the hell do they want your fingerprint for?

Let us assume for some reason that they do get your fingerprint. What are they going to do with it? Put in an arrest warrant that your fingerprint matched one found at the scene of a crime? Aren’t they going to have to explain how they got your fingerprint? Either the government hacking into your phone is “legal” or not: the method by which they do it is irrelevant.

But there might be another problem associated with the fingerprint, writes Marcia Hoffman in Wired. While titled “Apple’s Fingerprint ID May Mean You Can’t Take The Fifth”2, the import of the article is clearly that this new fingerprint technology somehow reduces your privilege against self-incrimination if you choose to use it.

Because the constitutional protection of the Fifth Amendment, which guarantees that “no person shall be compelled in any criminal case to be a witness against himself,” may not apply when it comes to biometric-based fingerprints (things that reflect who we are) as opposed to memory-based passwords and PINs (things we need to know and remember).

To cut to the chase, the argument is thusly:

The fingerprint is not an act or a statement made verbally, forcing someone to reveal “contents of one’s mind”, therefore pursuant to Doe v. United States (II), it is not a “testimonial” statement that is incriminating and the act of forcing you to use your finger to open your phone is not privileged and you’re screwed. Damn you Apple, government stooge!

But, as most lawyers will tell you, there’s a big fat “maybe” attached to this argument she makes3. The ‘maybe’ is that it all depends on the facts and circumstances of the case. As Hoffman herself admits:

There are the password cases where a federal judge has ruled that an individual cannot be forced to turn over the password to decrypt files on one’s computer. Up until now, most people use 4-digit pin codes that can easily be hacked into by the Government.

But your fingerprint is different, she argues, because it isn’t something in your mind. It’s more like a key than a wall safe combination, relying on the argument of the court in Doe II.

But you can readily imagine a scenario where forcing you to use your fingerprint incriminates you: it ties you to the phone in question and it may lead police to information they didn’t know existed. See Doe I.

And then there’s the essential difference, at least in my mind4: the fingerprint is an inseparable part of my physical being, like my mind. The closest analogy I see in current practices is DNA comparison, which has been held to be non-testimonial. But DNA is not widely accepted as a method to lock and unlock private materials, except perhaps in science fiction.

A fingerprint, on the other hand, despite its unreliability can become widely used for just that. And then the argument can be made that it’s more akin to another scenario that’s prohibited: forcing you to participate in a criminal prosecution. Because there’s Rochin v. California, in which the Supreme Court held that it was a violation of Due Process to forcibly extract the contents of Rochin’s stomach and then used the pills found therein to prosecute him for possession of drugs.

There’s also the notion that there’s a reasonable expectation of privacy in the contents of one’s cell phone and that the government needs probable cause to seize and search it, however they unlock it.

And if all it takes for them is to get your phone unlocked – and they can hack into a passcode – then look about you. Your fingerprints are everywhere and you have no expectation of privacy in them. Don’t want to comply with being forced to turn over your fingerprint? Fine. They’ll just follow you and seize everything you touch and lift your print off that.

The problem with Hoffman’s piece is that it misplaces the problem with the Fifth Amendment privilege. It isn’t in the key or the fingerprint, it’s in the law that doesn’t care to protect us.

St. John Parish: We, too, record you without your knowledge!

Hello? Can you hear me now?

Hello? Can you hear me now?1

If you’re ever in St. John the Baptist Parish in Louisiana (and really, after reading this post you should avoid it at all costs), make sure you don’t ever call the police. If you do call the police, pray to St. John the Baptist that you merely get arrested instead of shot and killed.

If you do go to St. John the Baptist Parish, and if you do call the cops and if you do somehow miraculously survive their almost-standard-issue shooting of you and you do end up arrested and alive, be aware that their Sheriff video records all private conversations you have with your attorney.

Scott mentions this recording in his post linked to above, but in an uncharacteristically muted way. I suspect there is some outrage fatigue here, so I’ll take up the cudgel:

OUTRAGE! SCANDAL! UNCONSTITUTIONAL! Etc.

Narcotics field tests subject to Daubert and other tales of scientific evidence

In an opinion released two days ago in State v. Anthony Martinez [PDF], the CT Appellate Court held – in what was apparently an issue of first impression – that those narcotics field tests that officers do to determine whether the “powdery white substance” was indeed cocaine and not talcum powder are subject to the standards “enumerated” in Daubert v. Merrell Dow Pharmaceuticals. In CT, that standard was adopted in State v. Porter and challenges under Daubert are called “Porter challenges” or “Porter hearings”.

Prior to Daubert, the generally accepted standard was the “Frye” standard and it was that the examination or procedure had to be generally accepted in the scientific community. Daubert then altered that standard – and lowered it – to whether the scientific evidence would assist the trier of fact and whether it was scientifically “valid” as opposed to generally accepted by that scientific community.

The irony is that in CT, the defendant wanted the Court to adopt the lower Daubert standard in Porter so as to let in polygraph evidence. The defendant won on Daubert, but lost on polygraph, thus not completely fucking every criminal defendant over for eternity, but only slightly.

What the Supreme Court didn’t do in either Daubert or Porter is define just what the hell “scientific evidence” is, thus opening a gaping door for all sorts of pseudo-scientific testimony (more on that in a bit).

But clearly, dipping a stick into some chemical and then applying a drop of that chemical to a “powdery white substance” to determine if that substance changes color, thus revealing the presence of a narcotic, seems “scientific” enough.

But just because it’s scientific, doesn’t mean a court has to conduct a hearing to determine if it’s valid. Some scientific evidence is so scientifically accepted that it’s a foregone conclusion:

In one line of cases, ‘‘we have concluded that certain forms of scientific evidence have become so well established that a formal Porter inquiry is rendered unnecessary  . . . .’’ Id., 170; see State v. Porter, supra, 241 Conn. 85  n.30, citing State v. Cline, 275 Mont. 46, 55, 909 P.2d  1171 (1996) (ordinary fingerprint identification evidence); see also Hayes v. Decker, 263 Conn. 677,687–89,  822 A.2d 228 (2003) (effects of discontinuation of blood pressure medication); State v. Kirsch, 263 Conn. 390, 405, 820 A.2d 236 (2003) (reliability of alcohol blood testing done at hospital well established); State v. Legnani, supra, 109 Conn. App. 418–21 (matching of fired cartridges to magazines on basis of magazine marks).

This, the Appellate Court notes, is not one of them. While the argument the state makes, that these tests have been admitted into evidence in CT Courts for a very long time, is appealing as to their validity, that doesn’t close the inquiry, nor should it. Just because something has been admitted forever doesn’t make it scientifically valid. It just means we defense lawyers have been terrible about objecting to it.

In this case, there was no evidence presented – and indeed the trial court did not allow it – of the scientific method used in these field tests, nor their acceptance in the community or their validity. So the Appellate Court did hold that there was error in this case. But don’t be fooled. It wasn’t that bad. The guy was still guilty as sin, so we don’t care that there was a mistake in his trial. It was found to be harmless error.

In the second line of cases ‘‘we have concluded that  certain types of evidence, although ostensibly rooted in scientific principles and presented by expert witnesses with scientific training, are not ‘scientific’ for the purposes of our admissibility standard for scientific evidence, either before or after Porter.’’ Maher v. Quest  Diagnostics, Inc., supra, 170 n.22; see State v. Reid, 254 Conn. 540, 549, 757 A.2d 482 (2000) (testimony of criminologist regarding visible characteristics of and  similarities between strands of hair not ‘‘scientific evidence’’ for Porter purposes); State v. Hasan, supra, 205  Conn. 490 (testimony of podiatrist as to likelihood that certain pair of sneakers would fit on defendant’s feet was not ‘‘scientific’’ evidence under Frye).

When evidence is “not scientific” it doesn’t mean that an expert is not permitted to testify about their “expert conclusions”; but just the opposite: that the expert opinion is not subject to a gatekeeping function by the court to determine if that “expert” is an expert or an “expert”.

The big unmentioned area where the State has driven a truck through this hole is the testimony of “child sexual abuse experts” whose job it is to take the facts of a case and opine, based on their training and experience that such behavior is consistent with being sexually abused.

If a complainant does poorly in school, that’s consistent. If a complainant does well in school, that’s consistent. If a complainant discloses abuse immediately after it happens, that’s consistent. If a complainant discloses 5 years later, that’s consistent. If a complainant is left-handed, that’s consistent. If a complainant is right-handed, that’s consistent. You get the picture. And this is permitted, routinely, without limit or caution, because it’s not “scientific” evidence:

We first consider whether the trial court abused its discretion in declining to subject Lanning’s testimony to a Porter hearing. On appeal, the defendant concedes that Lanning’s testimony was not “scientific” but argues that the testimony nevertheless required the trial court to conduct a Porter hearing because it was “other specialized knowledge” within the meaning of § 7-2 of the Connecticut Code of Evidence. The state argues that no Porter hearing was required because Lanning’s testimony was not based on any scientific theory but, rather, on his training and experience in the field of child victimization. We agree with the state that, because Lanning’s testimony was not based on scientific knowledge, the trial court properly determined that a threshold admissibility hearing under Porter was not necessary.

State v. Sorabella. So these “experts” show up in court, talk about the 2000 children they’ve interviewed and in their (anecdotal) experience, what the characteristics are of those that have been abused, which incidentally happen to be every single child they’ve ever examined.

So, clearly, it’s not scientific. More like junk, but whatever.

But that’s not the end of the road. There’s this decision called Kumho Tire Ltd. v. Carmichael, which essentially applies Daubert to “non-scientific” evidence.

In Kumho Tire Co., Ltd., the United States Supreme Court held that a trial court’s gatekeeping function under Daubert applies not only to expert scientific testimony but also to expert testimony based on technical or other specialized knowledge. Id., at 149, 119 S.Ct. 1167. We decline to consider the defendant’s claim, however, because the defendant failed to raise it in the trial court.

That’s from Sorabella again, a shining example of what the CT Supreme Court does best. Surprisingly, in the 7 years since Sorabella has been decided, not one single appeal has challenged the admissibility of this type of “expert” testimony under Kumho Tire.

That should be next.