a public defender

There’s no legal principle called “this conviction is stupid”, so we lawyers call it “the statute is unconstitutionally vague”. All that means is that the Average Joe would have no idea that his conduct was illegal, so the statute is unconstitutional.  Now be honest: were you aware that holding someone’s arm who didn’t want to come with you for a second or two would expose you to 20 years in jail? I mean, we’d all be criminals. That’s how most of my dates start.

To demonstrate that [a statute] is unconstitutionally vague as applied to him, the [defendant] therefore must . . . demonstrate beyond a reasonable doubt that [he]  had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement. . . . [T]he void for vagueness  doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law  enforcement. . . . If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some  inherent vagueness, for [i]n most English words and phrases there lurk uncertainties. . . . References to judicial opinions involving the statute, the  common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning.’’

The statute

The statute in question is CGS 53a-94 (a), Kidnapping in the Second Degree. It is short and simple: you’re guilty of kidnapping when you abduct somebody. Which the court squares with its finding thusly:

We disagree with that conclusion because, although the defendant’s restraint of the victim was brief, it was coupled with unusually strong evidence of his intent to prevent the victim’s liberation.

Now this is just silly. The court seeks to justify its absurd holding on the actus reus portion of the statute by citing to the evidence of mens rea. Well, what if there weren’t any evidence of intent? Would it be unconstitutionally vague in that scenario? What if he hadn’t said anything and simply walked up to her and grabbed her by the arm? For a few seconds? Every prosecutor worth his or her salt would infer that he intended to kidnap her.

In the present case, any potential for vagueness of § 53a-94 (a) as applied to the defendant’s conduct, standing alone, was counteracted by the  overwhelming evidence that he possessed the requisite specific intent to prevent the victim’s liberation. The events of July 23, 2002, were not the  victim’s first encounter with the defendant; rather, he was convicted of attempting to kidnap the victim only four days earlier.

I’m paraphrasing here, but: “Well, I mean it was obvious he intended to kidnap her. So what if his follow-through was pathetic and feeble. As long as he said he wanted to, that’s good enough for us.”

I’m not even going to get into the blurred lines between attempt and the completed act here. It will make my mind explode and probably yours too.

There are two dissents here, but let not the lovers of the rule of law get their hopes up. There is nary a word in the dissent about the substance of the majority’s holding; rather the dissent is on the remedy to be afforded: the majority reinstates the conviction, the dissenters want a new trial. This just makes me sad. Very sad.

Maybe the Court hasn’t been abducted by aliens. Maybe they were when they wrote Salamon and only just have been returned to their bodies. That’s the only thing that can explain this.

Or the fact that CT isn’t the liberal hippie state with liberal activist judges that everyone seems to think it is.

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This, in my opinion, is a major victory. 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 brand new Section 40-13A provides:

Upon written request by a defendant and without requiring any order of the judicial authority the prosecuting authority shall no later than  forty-five days from receiving the request provide photocopies of all statements, law enforcement reports and affidavits within the possession of the prosecuting authority and his or her agents, including state and local law enforcement officers, which statements, reports and affidavits were  prepared concerning the offense charged, subject to the provisions of Sections 40 -10 and 40 -40 et seq.

This is a tremendous improvement, making uniform discovery provisions across the State.

But many are not happy with the tradeoff. The local listserve erupted today with a discussion of this. The argument – a valid one – is that the requirement that clients not be given copies of discovery is unethical. The file, after all, belongs to the client and the client only. The police reports are his police reports and the statements are by witnesses accusing him.

There are many clients who don’t want copies, but there are just as many who do. This new requirement might end up straining relations between attorney and client, which is an even bigger problem for already maligned public defenders.

Of course, this is not to say that the defendant can’t view the reports and statements. One could sit there all day and let the client read the documents in your possession; you just can’t make copies and hand them over – not without permission of the State anyway.

The rationale for the State’s position, I suspect, is that there is a risk of retaliation against witnesses whose names, addresses and phone numbers are sometimes printed in reports and on statements.

An easy solution for this, of course, is a requirement that all such identifying information (other than name) be redacted and copy of that redaction be provided to the State as well, as proof that it was indeed redacted.

I suspect the State might balk at this, though, because there are some lawyers who don’t bother to redact anything when they turn over discovery to the client. As I said, my practice has always been to redact, but I know there are some who don’t. The State doesn’t trust them and thus we all have to comply with this rule.

There is no State caselaw that I found addressing this issue. But there will be a challenge at some point – not by a lawyer, I think they’ll get on board with this rule sooner or later – but by a headstrong client running up against a stubborn prosecutor who refuses to give permission.

The argument can be made that as long as the defendant’s legal representative – the defense lawyer – has access to all materials, it is just as good as the defendant having access. The lawyer can, after all, show his client the documents. And it is the lawyer who has to defend the defendant, to advocate on his behalf and to present evidence in his defense.

But that argument belies a fundamental misunderstanding of the nature of the relationship between the defense lawyer and his client. I can imagine that if I were accused of a crime, I would be mightily irked if my lawyer told me he couldn’t give me a copy of the documents of accusation against me. I’d want to hold it, take it home with me, read it over and over again as many times as I wanted.

For some, this will only add another layer to the multi-faceted conspiracy theories about how all lawyers are in collusion and the system is out to get them.

This really is a true “compromise”. The new rule will benefit many, many defendants by providing automatic discovery of all documents in the State’s possession, but at the cost of risking the tenuous relationship between many others and their lawyers.

Do the benefits outweigh the costs? How is it done in your state?

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The defendant, as he should have, made a motion to bar reprosecution arguing double jeopardy. The court, continuing its line of correct decisions, denied that motion.

As you already know, that decision was reversed. Read the opinion if you want the legal basis.

What I couldn’t get out of my head as I read the decision was how this would never have happened had it been a defense motion for mistrial. That motion would have been roundly (and rightly) denied and the curative instruction would have been sent forth, to encourage the jurors to disregard what was material and relevant evidence of bias.

There’s one thing you learn as a defense attorney over time and that’s that judges are slightly, if not overwhelmingly, pro-prosecution. What’s good for the goose is rarely good for the gander. And when a judge does rule in a legally appropriate manner, tales of that instance are spread far and wide and the judge is hailed as “fair” and “unbiased”. What’s forgotten are the hundreds of instances when that didn’t happen.

The liberal, pro-defendant judge is a myth. A persistent myth perpetuated by the media, prosecutors and – to some extent – defense counsel.

Anyone else think differently?

And because you knew this was coming:

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In practice, however, the rule has not worked to screen out false confessions. Because investigators sometimes suggest and incorporate crime  details into a suspect’s confession, whether deliberately or inadvertently, many false confessions appear highly credible to the secondhand observer. Without an electronic recording of the entire interrogation process, courts are thus left to decide a swearing contest between the suspect  and the detective over the source of the details contained within the confession. Moreover, the quantum of corroboration in most jurisdictions that  apply the trustworthiness doctrine is very low, allowing many unreliable confessions to go before the jury (Leo et al., 2006).

In addition, while courts have taken a hard line stance condemning physically abusive tactics during interrogations, their rulings in the area of psychologically abusive tactics can be best seen as condoning the methods. The psychologically abusive tactics can be briefly categorized as: maximization and minimization, false-evidence ploy and other forms of deception (most notably not objected to in Frazier v. Cupp).

When dealing with a case that involves confessions, it is important to know the different types of false confessions and how they are induced. This paper classifies them into three types (drawing on an earlier taxonomy by Kassin): voluntary, coerced-compliant, and coerced-internalized.

Voluntary false confessions

This is where the subject intentionally confesses to a crime he did not commit. The reasons are varied: notoriety, a breakdown in reality monitoring and most frequently to protect the real perpetrator.

Compliant false confessions

These are the types of false confessions one most frequently associates with this concept. Think of it as acquiescing to the color of authority. This is the kind of false confession that also poses the greatest problem for both defense attorneys and jurors. The prevalent thinking is that one would never confess to a crime they did not commit, no matter how persuasive the interrogator and thus if there is a confession, it must be true. Yet the psychology of the human mind stands at odds with this assumption.

Demonstrating the form of influence observed in classic studies of social influence (e.g., Asch, 1956; Milgram, 1974), this type of confession is an act of mere public compliance by a suspect who knows that he or she is innocent  but bows to social pressure, often coming to believe that the short-term benefits of confession relative to denial outweigh the long-term costs. Based on a review of a number of cases, Gudjonsson (2003) identified some very specific incentives for this type of compliance—such as being allowed to sleep, eat, make a phone call, go home, or, in the case of drug addicts, feed a drug habit. The desire to bring the interview to an end and avoid additional  confinement may be particularly pressing for people who are young, desperate, socially dependent, or phobic of being locked up in a police station. The pages of legal history are filled with stories of compliant false confessions.

Internalized false confessions

This is third type, where not only does the suspect confess, but also starts to believe that he or she has actually committed the crime in question.

So what causes people to falsely confess? As I mentioned above, it seems incongruous to you and me that a person who knows that he is innocent would nevertheless confess to a crime. The answer begins with basic human psychology: we are highly responsive to reinforcement and subject to the laws of conditioning and of course our behavior is influenced by our perceptions of short-term rather than long-term consequences.

A voluminous body of research has shown that people make choices that they think will maximize their well-being given the constraints they face, making the best of the situation they are in—what Herrnstein has called the ‘‘matching law’’ (Herrnstein, Rachlin, & Laibson, 1997). With respect to a suspect’s response to interrogation, studies on the discounting of rewards and costs show that people tend to be impulsive in their orientation, preferring outcomes that are immediate rather than delayed, with delayed outcomes depreciating over time in their subjective value (Rachlin, 2000).

In addition to the intrinsic factors of human psychology that lead to false confessions, one must also be on the lookout for the external circumstances that can result in these confessions. Kassin breaks them down into two parts, each with subparts: the situational risk factors and the dispositional risk factors.

Situational risk factors include interrogation time, false evidence and minimization. Interrogation time, obviously, is the length of time that a suspect is interrogated. Some fun facts: the average interrogation lasts anywhere from 30 minutes to 2 hours. Interestingly in a 2004 study of 125 proven false confessions,

in cases in which interrogation time was recorded, that 34% lasted 6– 12 hours, that 39% lasted 12–24 hours, and that the mean was 16.3 hours.

When you get into those kinds of numbers, it’s easy to see why one should heed the red flags. Sleep deprivation can lead people to do – and say – almost anything.

False evidence

Once the interrogation has begun, the interrogator will try to convey to the suspect that resistance is futile. Basic psychology tells us that once people see an outcome as inevitable, cognitive and motivational forces conspire to lead people to accept, comply with and even endorse the outcome. Over the years, across a range of subdisciplines, basic research has revealed that misinformation renders people vulnerable to manipulation.

The forensic literature on confessions reinforces and extends this classic point, indicating that presentations of false evidence can lead people to confess to crimes they did not commit

…

That this tactic appears in proven false confession cases makes sense. In self-report studies, actual suspects state that the reason they confessed is that they perceived themselves to be trapped by the weight of evidence  (Gudjonsson & Sigurdsson, 1999; Moston, Stephenson, & Williamson, 1992).

Here’s an example via a study conducted by Kassin:

In one study, Kassin and Kiechel (1996) accused college students typing on a keyboard of causing the computer to crash by pressing a key they were instructed to avoid. Despite their innocence and initial denials, subjects were  asked to sign a confession. In some sessions but not others, a confederate said she witnessed the subject hit the forbidden key. This false evidence nearly doubled the number of students who signed a written confession, from 48 to  94%.

The most famous real-life example of such a confession is that of Marty Tankleff.

Minimization

The final situational risk factor is one we’ve all seen during interrogations: the officer convinces the suspect that confessing is in his best interest. That he is the suspect’s friend and that he can help him if he just confesses; that the judge and prosecutor will understand why he committed the crime, etc. The ultimately exonerated defendants in the Central Park jogger rape case reported feeling that they would be allowed to go home if they just confessed to the crime. Two core psychological phenomena underlie this factor: us being susceptible to reinforcement and and our eschewing long-term consequences in favor of short-term benefits.

Taken together, basic research showing that people are highly influenced by perceived reinforcements and that people process the pragmatic implications of a communication suggests the possibility that suspects infer leniency  in treatment from minimizing remarks that depict the crime as spontaneous, accidental, pressured by others, or otherwise excusable—even in the absence of an explicit promise.

Dispositional risk factors are those that are defendant specific, such as the age and maturity level, the mental and cognitive abilities of a particular defendant and whether the defendant suffers from any psychological disorders. You can easily imagine how any of these (or all) would play a significant role in inducing false confessions.

Interestingly, this paper notes another new and perhaps surprising risk factor: innocence. Yes, it does seem counter intuitive, but apparently recent studies have shown that innocence is a factor that can lead people to falsely confess. This is the “I did nothing wrong, I have nothing to hide” problem which leads innocent people to waive the rights and speak with police, subjecting themselves to the coercive interrogation techniques.

The[...] findings suggest that people have a naive faith in the power of innocence to set them free. This phenomenology was evident in the classic case of Peter Reilly, an 18-year-old who falsely confessed to the murder of his mother. When asked years later why he did not invoke his Miranda rights, Reilly said, ‘‘My state of mind was that I hadn’t done anything wrong and I felt that only a criminal really needed an attorney, and this was all going to  come out in the wash’’ (Connery, 1996, p. 93).

The consequences of false confessions are pretty obvious, starting with police inaction. Once the police obtain a confession from someone they already strongly believe to the be the culprit, they close the investigation, don’t follow up on other leads and ignore exculpatory evidence even if the confession is internally inconsistent, contradicted by external evidence, or the product of coercive interrogation. This, the studies seem to show, spill over onto prosecutors as well, who refuse to accept the idea of false confessions.

But there’s another consequence that is even more troubling for you and I. And that is the effect that a confession has on people’s perception of the remainder of the evidence even when told that the confession was coercively obtained and false! The results of studies in this area are extremely frightening and must be given a lot of though going forward:

In a second study, Hasel and Kassin (2009) staged a theft and took photographic identification decisions from a large number of eyewitnesses who were present. One week later, individual witnesses were told that the person they  had identified denied guilt, or that he  confessed, or that a specific other lineup member confessed. Influenced by this information, many witnesses went on to change their identification decisions, selecting the confessor with  confidence, when given the opportunity to do so.

Mock jury studies show essentially the same results. The fact of a confession may be the single most powerful piece of evidence introduced in a trial to begin with. We learn that people (jurors) may not even fully discount the confession if told that it was coerced (going back to the “why would anyone confess if they didn’t do it, so there must be some reliability or some morsel of truth in it” problem).

For example, Kassin and Sukel (1997) presented mock jurors with one of three versions of a murder trial transcript. In a low-pressure version, the defendant was said to have confessed to police immediately upon questioning. In  a high-pressure version, participants read that the suspect was in pain and interrogated aggressively by a detective who waved his gun in a menacing manner. A control version contained no confession in evidence. Presented with the high-pressure confession, participants appeared to respond in the legally prescribed manner. They judged the statement to be involuntary and said it did not influence their decisions. Yet when it came to the all-important verdict measure, this confession significantly increased the conviction rate. This increase occurred even in a condition in which subjects were specifically admonished to disregard confessions they found to be coerced.

There are several reasons for this – three, primarily:

1. that people still have a hard time believing that even coercive techniques result in false confessions because they are more likely to take behavior at face value than to account for situational factors;
2. that people are terrible at deception detection: both cops and laypeople exhibit accuracy rates that range between 42 and 64% – no better than chance.
3. that confessions often include content cues presumed to be associated with truthfulness.

As Kassin concludes: Uninformed, however, this spectator mistakes illusion for reality, not realizing that the taped confession is scripted by the police theory of the case, rehearsed during hours of unrecorded questioning,  directed by the questioner, and ultimately enacted on paper, tape, or camera by the suspect.

So what is the solution? How do we prevent false confessions from occurring, from being entered into evidence and from jurors continuing to be deceived  by them? The single most important reform is videotaping of all custodial interrogations (which I’ve argued for before). Videotaping not only permits an entirely accurate record of everything to be maintained, it permits the jury to see how the confession was obtained, not just the content of the confession itself. It also deters interrogators from using the most blatant and obvious methods of coercion.

While initially meeting with resistance, the police departments whose jurisdictions have adopted videotaping are now strongly in support of it:

Among the collateral benefits they often cited were that recording permitted detectives to focus on the suspect rather than take copious notes, increased accountability, provided an instant replay of the suspect’s statement that  sometimes revealed incriminating comments that were initially overlooked, reduced the amount of time detectives spent in court defending their interrogation practices, and increased public trust in law enforcement.

In addition to the videotaping of interrogations, Kassin proposes several others reforms in the method of interrogations: limiting the time of such interrogations, a ban on fabricated evidence but not false assertions (as a compromise), moving from a “confession” model to a “fact finding” model of interviewing suspects and eliminating the use of legal consequence minimization in interrogations.

But the bulwark against false confessions remains the recording of interrogations. While most states do not require the videotaping (only 2 do), several others have lately indicated that such videotaping would be a good idea. In addition to Alaska (Stephan v. State, 1985) and Minnesota (State v. Scales, 1994), seven additional jurisdictions—Illinois, Maine, New Mexico, New Jersey, Wisconsin, North Carolina, and the District of Columbia— have joined in  requiring recordings of custodial interrogations in some circumstances (Robertson, 2007; Sullivan, 2004). In several other states, supreme courts have stopped short of requiring recording but either have issued strongly  worded opinions endorsing recording—e.g., New Hampshire (State v. Barnett, 2002) and Iowa (State v. Hajtic, 2007)—or, in the case of Massachusetts, held that where law enforcement officers have no excuse for the failure to  record interrogation, defendants are entitled to a strongly worded instruction admonishing jurors to treat unrecorded confessions with caution (Commonwealth v. DiGiambattista, 2004).

In Connecticut, however, there is no such requirement. Our Supreme Court recently heard oral argument in State v. Julian Lockhart, in which it is being asked to hold that videotaping interrogations is required under the State constitution. I’m not holding my breath.

In the meantime, however, I strongly urge you to read the entire paper by Kassin and every time you have a case that involves a confession, look closely for the presence of these risk factors. I might even go so far as to say that one should make it a practice to consult with an expert in cases involving confessions.

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Cannon, however, was one of the lucky ones:

The dismissal came after prosecutors were told to take another look at the case, which relied in part on evidence from “comparative bullet lead analysis,” a technique abandoned by the FBI in 2005 because of its unreliability. After [Cannon's lawyer] challenged the use of the bullet analysis, the state agreed in August that Cannon should receive a new trial.

It was in that quest for a new trial that the prosecution discovered that there was no more evidence. In a case that lacked any confessions or eyewitnesses, the lack of physical evidence to test spelled the end of any possibility of determining who actually committed the crime. With Cannon maintaining his innocence, the State had no choice but to agree to his release and the reversal of the conviction.

I feel bad for the victims’ family and for Cannon. One was burdened by the yoke of junk science and the other will be burdened by inexcusably shoddy evidence retention.

[Alternate title for this post involved the portmanteau "bullead": a pun involving bullet, lead and bullshit. For obvious reasons, I did not employ it.]

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A friend of a friend told me the story of a potential juror during voir dire a few years ago who was the lucky recipient of this “extra” information post-verdict in a trial for which she was a juror a long time ago. During this current voir dire, the story goes, she expressed her reservations about the criminal justice system because of that very fact: that she may not have all the information she’d like. “We found out later that the defendant had a lengthy record for this kind of thing”, she said. “If we’d known about it during the trial…” and her voice trailed off.

We can all finish her sentence, can’t we? “…we’d have convicted with much less deliberation.” There was a certain distrust in her voice, I’m told, about the system and of the defendant. This juror had been contaminated. How could she ever believe the defense? What were they hiding? Was the defendant a really bad guy? There’s no way she’d acquit, is there?

Telling the jury the behind-the-scenes operation of a trial is problematic, in my opinion. There’s a reason why some prior convictions aren’t introduced into evidence: primarily to avoid that very reaction. “Once a criminal, always a criminal” is a sentiment we strive very hard to avoid (unless, of course, you’re a sex offender, in which case, God help you. And even then…). It’s easy to think that once a trial is over, we can conspiratorially reveal the “secrets” of the trial to the jurors, like some piece of gossip we were just dying to reveal.

Doing this places an inordinate amount of importance on the fact of such prior convictions and elevates its function in the equation of guilt or innocence – which is to say it gives prior convictions any place in that equation, where it should have none.

That juror may have already discharged her service for that trial, but just as surely as the Sun rises in the East, she will be called for jury duty again and now, she will no longer be an acceptable juror for any criminal trial.

If that isn’t polluting the jury pool, I don’t know what is. And there’s not a damn thing we can do about it.

Bonus: On a related note, see this amusing story of a judge who served as a juror in the trial of a defendant over whose previous trial on identical charges he had presided. What a clusterf*ck of a sentence.

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As the United States Supreme Court has asserted, a defendant’s “literal right to `confront’ the witness at the time of trial … forms the core of the values furthered by the Confrontation Clause.” California v. Green, 399 U.S. 149, 157 (1970); Delaware v. Fensterer, supra; Davis v. Alaska, supra, 315; Dowdell v. United States, 221 U.S. 325, 330 (1911). The clause was originally conceived as a safeguard “to prevent depositions or ex parte affidavits … being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U.S. 237, 242-43 (1895); see also 5 J. Wigmore, Evidence (3d Ed. 1940) §§ 1365, 1367.

The court, in a subsequent case analyzing Jarzbek, engages in a thoughtful analysis of the Confrontation Clause and the need for the jury to be able to observe a witness:

Our law is well settled that it is a jury’s duty to determine the credibility of witnesses and to do so by observing firsthand their conduct, demeanor and attitude. See, e.g., State v. Morgan, 274 Conn. 790, 800 (2005). Some of our older cases indicate that fact finders properly may consider not only a witness’ demeanor during his testimony but also his spontaneous reactions in the courtroom, as a whole, provided these considerations are limited to assessing credibility. See Kovacs v. Szentes, 130 Conn. 229, 233 (1943); State v. McLaughlin, 126 Conn. 257, 264-65 (1939). A jury’s assessment of a witness’ credibility also naturally and rightly may include observations of his reaction to having to confront the defendant physically and to testify in an open and public forum. See State v. Jarzbek, supra, 204 Conn. 683, 692-93 (1987) (confrontation clause “finds its modern justification in the perceived role that physical confrontation plays in the truth-seeking process”), cert. denied, 484 U.S. 1061 (1988).  We have observed that the confrontation clause was conceived as a means of providing the accused with “an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” (Emphasis added; internal quotation marks omitted.) Id., 692. Therefore, we conclude that, to the extent that the jurors formed opinions as to Ford’s credibility by observing his demeanor on the stand and his spontaneous reactions in the courtroom, they acted properly. Such observations and the rational inferences drawn therefrom are not prejudicial. See State v. Porter, 241 Conn. 57, 120 (1997) (“forming impressions and intuitions regarding witnesses is the quintessential jury function”), cert. denied, 523 U.S. 1058, (1998).

The court, however, has applied the rationale of permitting unmasked out-of-court testimony to cases of sexual abuse of minors and only on the rationale that the State has a compelling interest in protecting child victims and encouraging their participation in the criminal justice system. Even then, it is a determination to be made on a case-by-case basis. The New Hampshire Supreme Court in Hernandez seems to buy into a similar compelling need to protect the identity of undercover officers, but in my opinion, at the grave expense of the Confrontation Right. That court relies on Coy v. Iowa and Maryland v. Craig and crafts another case-by-case test for permitting witnesses to testify in disguise. But Coy dealt specifically with the defendant’s absence from the presence of the accuser and again in a child-sex case. The Supreme Court in Craig did hold that the right to face-to-face confrontation was not indispensable and that the requirements of the Confrontation Clause:

may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.

In doing so, according to the NH Supreme Court, the Craig court focused on four factors:

(1) physical presence; (2) oath; (3) cross-examination; and (4) observation of demeanor by the court, defendant and trier of fact.

In holding that permitting the police officer to testify in disguise constituted harmless error in this case, but may be permitted in other cases, the NH court seems to explicitly ignore (4) above. Who knows if the detective is smirking under that ski-mask, knowing that he’s lying through his teeth and the jury is unable to observe that. Again, it is important to note that Craig again dealt with the physical presence of a defendant and the impact and trauma that might have on a child victim. None of these cases speak to permitting a witness to testify, in court, with his or her face hidden.

Given my reading of Jarzbek, Coy and Craig, I think the Connecticut Supreme Court would be hard pressed to agree with New Hampshire’s august tribunal, but I’m usually wrong when it comes to things like this.

Two side notes: The newspaper story covering the NH decision includes the usual quotes from law enforcement about how the primary focus should be the safety of the officers, not the Constitutional rights of an accused. So make sure you read it if you want to get all indignant.

Second, the dissent by Scalia in Craig is certainly worth the time it would take to read it. Here’s a sampling:

According to the Court, “we cannot say that [face-to-face] confrontation [with witnesses appearing at trial] is an indispensable element of the Sixth Amendment’s guarantee of the right to confront one’s accusers.” Ante, at 849-850. That is rather like saying “we cannot say that being tried before a jury is an indispensable element of the Sixth Amendment’s guarantee of the right to jury trial.” The Court makes the impossible plausible by recharacterizing the Confrontation Clause, so that confrontation (redesignated “face-to-face confrontation”) becomes only one of many “elements of confrontation.” Ante, at 846. The reasoning is as follows: The Confrontation Clause guarantees not only what it explicitly provides for — “face-to-face” confrontation—but also implied and collateral rights such as cross-examination, oath, and observation of demeanor (TRUE); the purpose of this entire cluster of rights is to ensure the reliability of evidence (TRUE); the Maryland procedure preserves the implied and collateral rights (TRUE), which adequately ensure the reliability of evidence (perhaps TRUE); therefore the Confrontation Clause is not violated by denying what it explicitly provides for — “face-to-face” confrontation (unquestionably FALSE). This reasoning abstracts from the right to its purposes, and then eliminates the right. It is wrong because the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was “face-to-face” confrontation. Whatever else it may mean in addition, the defendant’s constitutional right “to be confronted with the witnesses against him” means, always and everywhere, at least what it explicitly says: the “`right to meet face to face all those who appear and give evidence at trial.’”

Sometimes, he’s so good that it hurts.

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Contrary to [the dissent's] assertion that the state ‘could have proffered’ additional evidence . . . to support the kidnapping charges had it had knowledge of the rule announced in Salamon, we have found nothing in the record to indicate that there was any such evidence. . . . In the absence of any such evidence, it strains the imagination to conceive of a situation in which the state would decline to proffer relevant and material evidence in a criminal prosecution [in which] it bears the burden of proving every element of the crimes charged beyond a reasonable doubt.

Justice Katz (author of Sanseverino I), dissenting in Sanseverino II, explains further:

In Salamon, only after we had examined the evidence at length did we conclude that a retrial was warranted because the evidence actually adduced could be a sufficient basis for a reasonable jury to find a kidnapping upon a proper instruction under the revised rule. State v. Salamon. Although we could have reversed the defendant’s conviction in Salamon on the basis of instructional error— i.e., he did not have the benefit of an instruction under the rule that we set forth in that case—the court relied exclusively on insufficiency of the evidence. Sanseverino simply was an application of the Salamon rubric that yielded a different outcome.

But this joy was rather short lived. A few short weeks later, the Supreme Court started on the path to yesterday’s change of mind. In State v. DeJesus (which you will remember produced a noteworthy post title), the Court quickly disavowed its remedy in Sanseverino (in fact, it expressly reversed itself). So Mr. Sanseverino was enjoying relief, but it was on borrowed time.

In Sanseverino II, the Superme Court did what I expected: it explicitly reversed the remedy of Sanseverino I. Fine, if you want to do that, fine.

But the way it did it and what else it did are noteworthy and frankly, remarkable. Let’s take things one at a time. On reversing the remedy, the Court writes:

Recently, in State v. DeJesus, [...] this court reconsidered the question that we had addressed in Sanseverino, namely, what is the appropriate remedy when a defendant who is entitled to a jury instruction in accordance with Salamon does not receive it? After reviewing the applicable precedent, we concluded that, as in the case of any other harmful instructional impropriety, the appropriate remedy is to reverse the defendant’s kidnapping conviction and to remand the case for a new trial.  As we explained in DeJesus, when the state has presented evidence sufficient to support the defendant’s conviction under the legal standard that existed at the time of trial, an unforeseen change in that legal standard, although requiring reversal of the conviction, ordinarily does not also require a judgment of acquittal. Rather, the state is entitled to retry the defendant under the new standard because, in such circumstances, ‘‘the double jeopardy concerns that preclude the  [state] from having a second opportunity to build a case against a defendant when it failed to do so the first time are not present . . . . Any  insufficiency in proof was caused by the subsequent change in the law . . . [and] not the [state’s] failure to muster evidence.’’ (Internal quotation marks omitted.)

Note the subtle change in wording. Salamon goes from being “what the legislature always intended” to an “unforeseen change in the law”. Twist and shout.

Finally, the state claims that, in light of the benefit that the defendant has received, namely, the reversal of his kidnapping conviction, which resulted from the fortuity that his case was on appeal when Salamon was decided, he will suffer no unfair prejudice if the judgment is modified to reflect a conviction of unlawful restraint in the second degree, a misdemeanor.

[...], we can conceive of no reason why it would be unfair to the defendant to impose a conviction of unlawful restraint in the second degree.

It is unfair that the court is willing to allow defendants to suffer the consequences of its erroneous interpretation of the kidnapping statute.  It is clear from reading Salamon and DeJesus that the court admitted that it got it wrong the first time:  when it interpreted the kidnapping statutes to cover restraint wholly incidental to the commission of another offense, it did not properly discern what the legislature intended to criminalize.  We now know that the legislature always intended kidnapping to exclude wholly incidental restraint.

Thus, it is patently incorrect to say that Sanseverino is not unfairly prejudiced by the order of a new trial or entering of judment on the LIO because he didn’t raise the claim raised in Salamon (sufficiency) and is just lucky that he can benefit at all from the Salamon decision.  This assertion bothers me for a few reasons.  First, he was truly unlucky to have committed his crime at at time when our supreme court didn’t feel it necessary to conduct a thorough interpretation of the kidnapping statutes.  I also don’t consider it “luck” to have our supreme court acknowledge that the legislature never intended for Sanseverino to be convicted of kidnapping.  Are we supposed to feel lucky not to be incarcerated for a crime we did not commit?!

Second, the court goes out of its way to say that because of the dramatic change in the law brought about by Salamon, the state could not have been expected to foresee the change and make strategic decisions re: what evidence to present and which LIOs to include in the jury instructions; yet the court is perfectly willing to criticize Sanseverino for not foreseeing the same “dramatic change” and raising the same sufficiency claim that had been rejected numerous times before.

So let’s talk about this LIO stuff now. The Court grants the State’s request that if it chooses not to retry him on the kidnapping charge, it is entitled to a conviction of Unlawful Restraint. Yes, that was worthy of italics. In doing so, the Court blurs the line between the jury’s role and an appellate court’s role. While expressly avoiding the legal issue on which numerous other courts have split, i.e., whether an appellate court can enter judgment on an LIO on which the jury was not instructed at trial, the court instead creates a special rule just for this particular case.  The concurring opinions aren’t any better.  All seem to agree that Sanseverino isn’t prejudiced here (see above), so it’s no big deal if the jury wasn’t instructed on the LIO the court now wants to impose as judgment (bearing in mind that the judgment will only enter if the state doesn’t exercise its option to have a re-trial on the kidnapping charge. Apparently the court feels so badly about blindsiding the state with its Salamon decision, that it’s allowing the State options to choose from to cure the prejudice . Sigh, that must be nice).

The only justice who seems to have opted out from this is Justice Shaller, who dissents from this second part of the Court’s decision:

[A] remand for sentencing on a lesser included offense is appropriate only when a jury properly has been charged on that offense because: (1) appellate courts should avoid resolving cases in ways that involve fact finding or blur distinctions between appellate and trial court determinations; (2) requiring an instruction maintains the distinction between an appellate court’s determination that the record evidence is sufficient to support a guilty verdict and a jury’s determination that the state proved its case beyond a reasonable doubt; (3) when the jury has been instructed on the greater offense only, any attempt to assess what the jury would have determined with respect to the lesser offense is speculative; (4) only when the jury has been instructed on the lesser offense and could have explicitly returned a verdict, is the defendant undeniably aware of his potential liability for the lesser offense; (5) the practice of remanding for sentencing on lesser offenses that have not been submitted to the jury may encourage the state to risk not seeking instructions; (6) the state gains an unfair strategic advantage if it alone can adopt an all or nothing approach at trial but, under some circumstances, change its position and argue that the lesser offense should have been submitted; and (7) the defendant may have forgone a particular defense or strategy due to the failure to instruct on a lesser included offense.

He also sums up the problems with the “luck” argument quite succinctly:

If, indeed, the defendant ‘‘has benefited from our holding in [State v. Salamon],’’ as the majority argues, the unexpected holding in Salamon can be said to have done no more than to remedy a deficiency in the law, a benefit to which the defendant doubtless was entitled.

It’s almost like a few days after Salamon and Sanseverino the Court realized that it had ruled in favor of defendants (and their rights) and were horrified by it, so they set about “remedying” (get it?) it.

(I would be remiss in not mentioning that this post was practically co-written by Miranda and she remains, as always, the real brains behind this operation. Oh, and the usual “this post is an expression of the personal opinions of Miranda and myself and not of our employer”.)

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(a) A person is guilty of burglary in the second degree when such person enters or remains unlawfully in a dwelling, while a person other than a participant in the crime is actually present in such dwelling, with intent to commit a crime therein.

Since Miranda invited me to her house, I am not there unlawfully. She is a person other than a participant and is actually present (she’s toolin’ around in the basement), so that element is satisfied. The only question then is whether I remained unlawfully with the intent to commit a crime therein.

The usual explanation of “remains unlawfully” uses the example of someone who enters a public building, like a bank, lawfully and then hides and waits for it to close for the day. He is then there unlawfully:

A person “enters or remains unlawfully” in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.’ (Emphasis [omitted].) General Statutes § 53a-100(b). . . . ‘A license in real property is defined as a personal, revocable, and unassignable privilege, conferred either by writing or parol, to do one or more acts on land without possessing any interest therein.’ (Emphasis added.) 25 Am. Jur. 2d, Easements and Licenses § 123. Generally, a license to enter premises is revocable at any time by the licensor. Id., § 128. It is exercisable only within the scope of the consent given. [Emphasis added.] Miller v. Grossman Shoes, Inc., [186 Conn. 229, 237 (1982)]. . . . The phrase, ‘licensed or privileged,’ as used in General Statutes § 53a-100(b) is meant as a unitary phrase, rather than as a reference to two separate concepts.” State v. Grant, 6 Conn. App. 24, 29-30 (1986).

So the license to be in Miranda’s house could have been revoked. But does she need to do it explicitly? The Connecticut Supreme Court says no:

in State v. Reyes, 19 Conn. App. 179, 192-3 (1989), the Appellate Court held that “[e]vidence that a defendant subsequently pointed a gun at one who had the right to admit him to the premises, and did admit him to the premises, clearly can form the basis for the inference that consent to remain was implicitly withdrawn and thus that the individual ‘unlawfully remained’ within the meaning of the statute.”

State v. Allen, 216 Conn. 367 (1990). So I guess it’s clear that when I formed the intent to deprive Miranda of the iPod, I had the intent to commit a crime. But did I remain unlawfully? In both Reyes and Allen, the homeowner was faced with the defendant and could see the illegal actions of the defendant, thus having the opportunity to “implicitly” withdraw permission. What if Miranda had no idea that I was thinking about taking the iPod? Is that sufficient to complete an implicit withdrawal?

Now, stretching the hypos to the limit, what if the iPod is on a table next to the back door and I see it on my way out of the house? What if I take the iPod Nano and take one step, which places me outside her dwelling? Am I still guilty of burglary?

The question then becomes, in my opinion, what is meant by “remains”. The general statutes provide no guidance and I’m not going to bother looking at the legislative history, so let’s look at a dictionary instead (plain meaning, etc. etc.):

–verb (used without object)
1.     to continue in the same state; continue to be as specified: to remain at peace.
2.     to stay behind or in the same place: to remain at home; I’ll remain here when you go to the airport.

The word “remains” definitely connotes the physical act of staying in the same place, or occupying the same physical area as you were prior to the act or incident or temporal marker.

But for how long? Surely, I “remained” in her house for one second as I pocketed the iPod Nano. But the complete act was that of “leaving”, not remaining. The crime was completed by the time I picked up the iPod and placed it in my pocket, as distinguished from Reyes and Allen above, where the crime continued for a longer period of time.

So is there a temporal requirement inherent in “remains”? Can the “remaining” be for a second? A nanosecond? Is that absurd and unworkable?

And what of the scenario where I pocket the iPod Nano, hang around for a few minutes looking at pictures on a fridge and then decide that I was being silly and put it back, Miranda none the wiser.

Have I committed a burglary? I think the answer would have to be yes.

Thoughts?

1. Miranda does not have a house, nor has she invited me in ever, nor have I ever formed the intent to commit a crime therein even if I have ever been therein invited for social engagements. Short form: It’s a freakin’ hypo, you nutjobs!

photo credit: Fribirdz

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1. What does “actually present” mean and what are its limits?
2. What is “the offense” referred to in element 8?
3. And what of elements 9 and 10?

What of elements 9 & 10? Does an offense against “the person” literally mean an offense that involves the physical person of the homeowner? Does it limit it to things like kidnapping, assault, sex assault? Or would it even include a situation where there is no physical contact or attempted physical contact between the offender and the homeowner, say, a larceny? In other words, is it sufficient for the offender to enter a house where someone is present, take some valuables and leave, without ever threatening or even seeing the homeowner and still be convicted of home invasion?

If it is, then what is the difference between that factual scenario and what is a classic burglary?

Now, of the title of this post, “actually present”. On one hand, it is pretty self-explanatory. Actually present means just that. The person is actually present. Of course, if this were not the case, then elements 8-11 would be useless. But we know that law is not made when the facts fit squarely within the parameters of the statute. In order to test the statute, we must operate on the fringes.

So here are three scenarios. Use the poll to indicate which of the three (or any combination thereof) you would consider to be a home invasion with the elements of this statute:

Scenario A: The offender has completed the larceny of an empty dwelling and is exiting through the front door, just as the homeowner is walking up the driveway to the front door. Their “meeting” is outside the four walls of the home, but on the property. There is no physical contact, as the offender simply runs away.

Scenario B: Exactly the same as the above, but there is a brief scuffle between the two.

Scenario C: The offender is walking out the back door of the house and is seen by the homeowner who walks in the front door.

Scenario D: The offender, seeing the homeowner opening the front door, leaves via the back door. The offender is not seen by the homeowner.

Scenario E: The offender leaves through one door, while the homeowner walks in another. Neither sees the other.

All of those may qualify as “home invasion” or none of them may. It all depends on how elements 8, 9, 10 & 14 get along. The purpose of the home invasion statute, of course, is:

protection against invasion of premises likely to terrorize occupants

Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (1971), p. 32. Oh wait. That’s the purpose of the burglary statute (State v. Greco, 216 Conn. 282, 296). Anyway, assume that it is the same for home invasion.

If the homeowner is not at home during the “invasion” but arrives during the exit, would that be likely to terrorize the occupant? I think the answer is yes. But what of the scenarios where the homeowner is unaware of the presence of the exiting offender? Perhaps, because there may not be a functional difference between that and the asleep homeowner who doesn’t know of the presence of the intruder.

Yes, I recognize that these scenarios are a bit fanciful, but that’s what Sundays are for. Have at it:

[poll id="28"]
1. The home invasion statute is nothing but a 5 year sentence enhancement for a burglary where a person is present.

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defendant contends dangerous instrument, as defined by General Statutes § 53a-3 (7), cannot include a body part . . . . We conclude that an ordinary object may be a dangerous instrument. Therefore, each case must be individually examined to determine whether, under the circumstances in which the object is used or threatened to be used, it has the potential for causing serious physical injury. . . . The question of whether in the given circumstances a particular object was used as a dangerous instrument is a question of fact for the jury

State v. McColl, 74 Conn. App. 545, 553-54, cert. denied, 262 Conn. 953 (2003). So, what then, is the difference between 53a-64aa(a)(1)(A) and 53a-64bb? Is there?

Let’s move on from strangulation for a second and look at its step-brother Assault. The Assault statutes are strikingly similar to the strangulation statutes. Here’s Assault in the Second Degree:

(a) A person is guilty of assault in the second degree when: (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm

And here’s Assault in the Third Degree:

(a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person

So why these separate statutes? What does strangulation give you that assault doesn’t? Couldn’t strangulation in the first degree fit within assault in the second degree? Or is it that with strangulation, there is no real injury? When you choke someone, is there any quantifiable injury that can be demonstrated and testified to? So if we assume that the difference is that there is no demonstrable injury, then it gets even curioser when you look at the penalties:

Strangulation in the first degree is a C felony, whereas Assault in the 2nd degree is a D felony and strangulation in the second degree is a D felony whereas assault in the third degree is an A misdemeanor. So it is conceivable that, on the backs of domestic violence, the legislature deemed it necessary to punish choking more harshly than regular, plain ole assault. Ridiculous, but conceivable.

Then explain this subsection of both strangulation statutes:

(b) No person shall be found guilty of strangulation in the second degree and unlawful restraint or assault upon the same incident, but such person may be charged and prosecuted for all three offenses upon the same information. For the purposes of this section, “unlawful restraint” means a violation of section 53a-95 or 53a-96, and “assault” means a violation of section 53a-59, 53a-59a, 53a-59b, 53a-59c, 53a-60, 53a-60a, 53a-60b, 53a-60c, 53a-61 or 53a-61a.

What. the. hell. does. that. mean? No, really. What does it mean? It means that the state can argue to the jury that the defendant, who choked the victim causing no long-term injury (serious or otherwise) is either guilty of assault or unlawful restraint or strangulation, but not all three. Huh?

The language also doesn’t necessarily lead to a merging of the convictions, as with some other offenses, but explicitly states that one cannot be found guilty of all three, but can be charged with and prosecuted for all three. Maybe it’s late and I’m stupid, but I just don’t get it.

This is what happens when the legislature ignores statutes already on the books and creates new ones specifically in response to individual cases or circumstances *cough*homeinvasion*cough*. It leads to silly results like this. Why can’t anyone who chokes someone be prosecuted for assault? I submit they can.

Does anyone know of any challenges to this statute? Any arguments that have been successful?

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‘‘The admissibility of evidence of third party culpability is governed by the rules relating to relevancy.’’ (Internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 564, 747 A.2d 487 (2000)

‘‘Such evidence is relevant, exculpatory evidence, rather than merely tenuous evidence of third party culpability [introduced by a defendant] in an attempt to divert from himself the evidence of guilt.’’ (Internal quotation marks omitted.) State v. Smith, 280 Conn. 285, 304, 907 A.2d 73  2006). ‘‘In other words, evidence that establishes a direct connection between a third party and the charged offense is relevant to the central question before the jury, namely, whether a reasonable doubt exists as to whether the defendant committed the offense. Evidence that would raise only a bare suspicion that a third party, rather than the defendant, committed the charged offense would not be relevant to the jury’s  determination. A trial court’s decision, therefore, that third party culpability evidence proffered by the defendant is admissible, necessarily entails a determination that the proffered evidence is relevant to the jury’s determination of whether a reasonable doubt exists as to the defendant’s  guilt.’’ State v. Arroyo, supra, 284 Conn. 609–10.

What is a “more than bare suspicion”? I’ll tell you when I see it. But I do know what “more that bare suspicion” isn’t:

Dunkley v. Commissioner of Correction, 73 Conn. App. 819, 827, 810 A.2d 281 (2002) (no evidence to support third party claim, in part, because no one at scene implicated alleged third party), cert. denied, 262 Conn. 953, 818 A.2d 780 (2003); see also Floyd v. Commissioner of Correction, 99 Conn. App. 526, 531–32, 914 A.2d 1049 (insufficient evidence to substantiate third party claim when predicated on alleged testimony of unlocated drug dealers who were also gang members), cert. denied, 282 Conn. 905, 920 A.2d 308 (2007); Santiago v. Commissioner of  Correction, 87 Conn. App. 568, 591–92, 867 A.2d 70 (third party statements did not contain sufficient substance to support viable third party claim), cert. denied, 273 Conn. 930, 873 A.2d 997 (2005); Alvarez v. Commissioner of Correction, 79 Conn. App. 847, 851, 832 A.2d 102  (insufficient evidence to support third party culpability defense when petitioner called only one witness at habeas hearing who did not even observe shooting), cert. denied, 266 Conn. 933, 837 A.2d 804 (2003); Daniel v. Commissioner of Correction, 57 Conn. App. 651, 684, 751 A.2d  398 (testimony not sufficient to raise third party culpability defense because supporting witnesses’ statements were inconsistent), cert. denied, 254 Conn. 918, 759 A.2d 1024 (2000).

So now you know. Sort of.

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19 years ago, our supreme court considered Leon and its application in CT and decided that under the CT constitution, there is no such thing. The issue came before the august tribunal after two rounds of apeals and an adoption of Leon by the Appellate Court, in State v. Marsala. In Marsala:

the trial court issued a written decision in compliance with the directive of the Appellate Court  to make four specific determinations. The trial court concluded: (1) “the affiants did not mislead the issuing judge”; see Franks v. Delaware, 438 U.S. 154 (1978); (2) there was “no evidence that the issuing judge wholly abandoned his judicial role”; see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979); (3) “the police officers did have a reasonable belief that the warrant was valid”; see Brown v. Illinois, 422 U.S. 590, 610-11 (1975) (Powell, J., concurring); and (4) “the warrant was not so facially deficient in its lack of particularity, regarding the place to be searched or the articles to be seized, that the executing officers could not reasonably presume it to be valid.” See United States v. Leon, supra, 923. In his appeal from this decision, the defendant did not contest the trial court’s first, second or fourth conclusions. State v. Marsala, 19 Conn. App. 478, 480 (1989)

The Court then turned to the question du jour: Whether Article 1, Section 7 of the Connecticut Constitution provides for a good faith exception. Justice Shea and the full panel of supreme court justices simply declined to adopt Leon. Writing for an unanimous court, Justice Shea opined:

Although we recognize that the exclusionary rule exacts a certain “cost” from society in the form of the suppression of relevant evidence in criminal trials, we conclude, nevertheless, that this “cost” is not sufficiently “substantial” to overcome the benefits to be gained by our disavowal of the Leon court’s good faith exception to the exclusionary rule. We base this conclusion on both the criticism leveled against the Leon opinion itself and our willingness in other areas of the law to uphold the exclusion of concededly reliable and relevant evidence on the basis of some greater benefit that will be realized by its suppression. Thus, for example, an otherwise voluntary and reliable confession is excluded from a criminal trial on the basis of a violation of Miranda v. Arizona, 384 U.S. 436 (1966), an exclusionary rule that we have adopted as an interpretation of the due process clause contained in article first, § 8, of the Connecticut constitution. See, e.g., State v. Barrett, 205 Conn. 437, 447 (1987); State v. Brown, 199 Conn. 47, 51 n.3 (1986); State v. Ferrell, 191 Conn. 37, 45 n.12 (1983).

The Court relied heavily on the dissent in Leon and the subsequent criticism of it to reject the good faith exception:

We simply cannot accept the conclusion reached by the Leon court as a result of its weighing of the relevant costs and benefits of excluding evidence obtained through police officers’ good faith reliance upon a warrant issued by a detached and neutral judicial official. Initially, we note that the exclusionaryrule, although primarily directed at police misconduct, is also appropriately directed at the warrant issuing process, and that “it is somewhat odd to suppose that the exclusionary rule was not designed to deter the issuance of invalid warrants.” S. Wasserstrom & W. Mertens, supra, 106. Just as with the fourth amendment, when article first, § 7, of our state constitution was adopted, “its purpose plainly was to prohibit the issuance of warrants that did not satisfy its requirements of probable cause and particularity.” 12 Id. The text of article first, § 7, is clear: “[N]o warrant . . . shall issue . . . without probable cause supported by oath or affirmation.” (Emphasis added.) While we might agree that the exclusionary rule was not  designed “to punish the errors  of judges and magistrates”; (emphasis added) United States v. Leon, supra, 916; we cannot agree that the rule as it stood before Leon was not a significant factor inducing judges to take seriously their obligation to ensure that the probable cause requirement of article first, § 7, had been met before issuing search warrants based on information contained in affidavits provided to them by police officers. We are confident that, at least in this state, search warrants failing to meet the probable cause requirement more often “result from carelessness than from intentional constitutional violations, and just as surely the exclusionary rule is logically directed to those more common violations.” 1 W. LaFave, supra, § 1.3(d), p. 55.

Over the years, I have become embroiled in several discussions with opponents of the exclusionary rule, whose primary argument is far too simplistic and myopic: The Fourth Amendment itself says nothing about the exclusion of evidence obtained via a violation of itself.

I have a hard time responding to this because on its face it makes no sense. To take the stance taken by the anti-exclusionists, one would have to believe that the Fourth Amendment reads something like this:  the right of the people to be free from unreasonable searches and seizures shall not be violated and no warrants shall issue, but upon probable cause, except if you violate this provision, we will scold you, but not really do anything about the violation, so it’s okay, go ahead and subject the people to unreasonable searches and seizures. So, violate this provision. It is what future generations will call a “technicality” and really, we can’t let those criminals go free on a technicality, can we?

As for Herring, I think my position is a little closer to the doomsdayers than it is to the laissez-fairers. I suspect many defendants will be the victims of “negligence”. But if you’re in CT, you don’t have to worry about this. Unless you’re a fatalist and decide to notice that the entire bench at the time of Marsala is no longer there and we now have 7 new justices who might want to revisit it.

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