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In my post discussing the demise of Miranda, I approvingly quoted the author’s mention of videotaping confessions as a possible solution. Scott writes today and warns us not to get too invested in videotaped confessions and why they may not be the answer. He is correct in that videotaped confessions are not very helpful and may end up providing the final nail in the coffin of a factually innocent defendant who goes to trial.

Scott’s post seems to focus only on confessions, as opposed to videotaping the entire interrogation(s). That’s the mistake. If we tape the entire interrogation instead, though, these reservations may not exist. Here’s a report from The Justice Project which argues that entire interrogations must be videotaped. After all, it is the interrogation that Miranda seeks to safeguard. So why should its “replacement” focus only on the confession?

It is the interrogation that needs to be videotaped to provide a complete picture of the voluntariness of a confession. Of what use is a confession only? That is principally the same as a written statement. By that point, the defendant has been broken down and tricked, cajoled or threatened into confessing. If he seems resigned on videotape while delivering his confession, it may be a product either of his guilt overwhelming him or of fatigue and submission.

A google search for videotaped interrogations provides a wealth of information: some as far back as 2002 from Chicago and some more recently from California.

There is, of course, the initial hurdle of resistance from law enforcement to overcome, but as with lineup and ID procedures, the wall is slowly starting to crumble. As of April, 2006, there were 450 law enforcement departments nationwide that required videotaping of interrogations. From Northwestern Law, here [pdf] is a list of agencies in the country today employing some form of videotaping and here [pdf] is a fantastic report (that I intend to read in-depth) from 2004 chronicling police experiences with videotaping interrogations. The New York County Lawyers’ Association has published this report [pdf] calling for interrogations to be videotaped. It analyzes statutes and regulations in various states.

In Connecticut, a pilot program was approved last year for certain jurisdictions. I haven’t heard anything about it or how it is working. Anyone who knows want to chime in? Did any jurisdictions actually sign up for the pilot program? [Previous coverage here and here.]

Once concern from law enforcement is that it may be difficult to videotape interrogations in all circumstances. I don’t think that’s true. If a suspect is arrested in a remote area, cops have two options: (1) use the in-car video system or (2) wait till you get to a police station. What am I missing here?

If the entirety of an interrogation is recorded - videotaped - then it certainly would give the viewer an accurate picture of the voluntariness of an eventual confession.

The only obvious problem that I can see is defining when such a recording must commence. Is “custody” too late in the game? What if there is an audio recording of initial contact and then video recording of an interrogation? I guess the answer will depend on what studies show to be first time that coercive tactics are used. I haven’t done enough research to provide a reasonable answer, but I think it is one that can be answered.

Videotaped interrogations may not be a panacea, but I think they will be a hell of a lot better than what we have now.

photo credit: werewegian

This fantastic piece in New York Magazine explores studies analyzing the lies that children tell, the reasons behind them and the frequency with which they are offered. The results are interesting, but the reasons behind the lies are fascinating.

It starts very young. Indeed, bright kids—those who do better on other academic indicators—are able to start lying at 2 or 3. “Lying is related to intelligence,” explains Dr. Victoria Talwar, an assistant professor at Montreal’s McGill University and a leading expert on children’s lying behavior.

By their 4th birthday, almost all kids will start experimenting with lying in order to avoid punishment. Because of that, they lie indiscriminately—whenever punishment seems to be a possibility. A 3-year-old will say, “I didn’t hit my sister,” even if a parent witnessed the child’s hitting her sibling.

So why do kids lie and do so unabashedly?

By the time a child reaches school age, the reasons for lying become more complex. Avoiding punishment is still a primary catalyst for lying, but lying also becomes a way to increase a child’s power and sense of control—by manipulating friends with teasing, by bragging to assert status, and by learning he can fool his parents.

Thrown into elementary school, many kids begin lying to their peers as a coping mechanism, as a way to vent frustration or get attention. Any sudden spate of lying, or dramatic increase in lying, is a danger sign: Something has changed in that child’s life, in a way that troubles him. “Lying is a symptom—often of a bigger problem behavior,” explains Talwar. “It’s a strategy to keep themselves afloat.”

This resembles a typical defense in which the victim/accuser is a child. Defense attorneys will seek to discover a motive; strife in the child’s life might give a clue as to whether the child is fabricating an injury. But for the most part, this investigation has been based on anecdotal evidence and just plain common sense. Find a motive, unravel the lie.

Given, however, the increasing role of science in the courtroom, I wonder if studies such as this have a place in any defense. Surely a study such as this to back up the defense’s claim that a child is lying would seek to legitimize what might otherwise be viewed by the jury as a vile effort to push blame onto a small child, who we view as pure and honest.

[One] experiment was not just a test to see if children cheat and lie under temptation. It was also designed to test a child’s ability to extend a lie, offering plausible explanations and avoiding what the scientists call “leakage”—inconsistencies that reveal the lie for what it is. [The child]’s whiffs at covering up his lie would be scored later by coders who watched the videotape. So [the tester] accepted without question the fact that soccer balls play Beethoven when they’re kicked and gave [the child] his prize. He was thrilled.

Seventy-six percent of kids Nick’s age take the chance to peek during the game, and when asked if they peeked, 95 percent lie about it.

Either way, make sure you read the entire story. It’s a fantastic read.

Image by Solar Ikon. License info here.

The title of this post is flippant, but the case it refers to is rather interesting. In State v. John F.M., the Supreme Court reversed the Appellate Court’s reversal of a conviction. John F. M. was convicted of sexual assault in the third degree under the sex with a kindred person subsection. It provides in relevant part:

(a) A person is guilty of sexual assault in the third degree when such person (2) engages in sexual intercourse with another person whom the actor knows to be related to him or her within any of the degrees of kindred specified in section 46b-21.

46b-21 provides:

No man may marry his mother, grandmother, daughter, granddaughter, sister, aunt, niece, stepmother or stepdaughter, and no woman may marry her father, grandfather, son, grandson, brother, uncle, nephew, stepfather or stepson. Any marriage within these degrees is void.

So you can’t have sex with any of those people either.  John F.M. first raised a sufficiency challenge - that based on the defendant’s testimony, the jury could not conclude that there did, indeed, exist such a relationship (the girl in question was the defendant’s step-daughter) and that the sex assault statute violates the equal protection clause because it prohibits only heterosexual conduct.

The defendant relied, in his first claim, on an 1827 decision of the CT Supreme Court - State v. Roswell, which held that the relationship between the two must be proven by the state other than by the testimony of the defendant. The Court engages in an analysis and discussion of Connecticut caselaw from 1827 onwards that erodes Roswell and overrules it.

Indeed, since Schweitzer was decided, this court repeatedly has reaffirmed the principle that, “cohabitation as husband and wife is [admissible] evidence, and often sufficient evidence, that the parties have been validly married, but does not in itself constitute a marriage.”

The Court also recaps the law on admission of a party:

[S]tatements made out of court by a party-opponent are universally deemed admissible when offered against him . . . so long as they are relevant and material to issues in the case. . . . [T]he vast weight of authority, judicial, legislative, and scholarly, supports the admissibility without restriction of any statement of a party offered against that party at trial.

The Court also found that the Appellate Court improperly extended the (overruled) Roswell rule of marital relationships to evidence of parentage.

The Court then turns to the equal protection argument. This, too, it resolves in favor of the state, but in my opinion, their argument is strained and it seems like they are reaching. Result oriented is what these opinions are called.

The claim was that the sex assault statute, which prohibits intercourse between people related in the manner defined in 46b-21, violates equal protection, because the “degrees of kinship” are defined in heterosexual terms.

The Court engages in some statutory construction:

To resolve the state’s claim, we must determine whether the phrase ‘‘degrees of kindred’’ in § 53a-72a (a) (2) incorporates by reference the precise male-female unions enumerated in § 46b-21.

For some reason, it looks at what “degrees” and “kindred” mean and determine that:

Accordingly, § 53a-72a (a) (2) plainly does not incorporate the precise male-female unions enumerated in § 46b-21 but, rather, incorporates only the proximity of relation specified therein, namely, parent-child, grandparent-grandchild, sibling-sibling, aunt/uncle-niece/nephew and stepparent-stepchild. Because § 53a-72a (a) (2) applies equally to both same sex and opposite sex sexual intercourse between individuals who are related within the degrees of kinship specified in § 46b-21, it does not create the allegedly unconstitutional classification and, therefore, does not violate the equal protection clause of the federal constitution.

It does seem absurd that the Statute would prohibit heterosexual relationships and not same-sex relationships, but that statute was likely written before same-sex relationships were much accepted as they are today. To that extent, is it the Court’s job to rewrite the intent of the statute as it is written? The legislature surely could have amended the statute at any point in the past so many years - especially since civil unions have been on their mind - and they did not.

Anyway, it’s interesting.  It takes a statute that is pretty darn specific and broadens its application. I think I got most of it. If I missed something, feel free to leave a comment, Marty.

There’s actually a reversal in the Appellate Court (amongst some affirmances), but I think this post has gone on long enough, so I’ll leave you with a quote. At least there isn’t much chance it will get reversed.

Because the state concedes, however, and we agree, that the defendant’s conviction of criminal mischief in the first degree cannot be reconciled with his conviction of arson in the third degree because the conviction of each crime depends on proof of irreconcilably inconsistent states of mind, the judgment must be reversed as to those crimes and the case remanded for a new trial.

Bringing a case that drew national attention to an end, the prosecutor in the “banned words” trial decided not to try the defendant for a third time.

This is the case where the judge banned the use of the words “rape”, “sexual assault” and “victim” (rightly so, in my opinion) and in which the accused later sued that same judge.

Two trials ended in mistrials and after initially indicating that he would try it a third time, the prosecutor announced that he wouldn’t.

Lancaster County Attorney Gary Lacey says he decided not to pursue a third trial in a sexual assault case because the judge barred the testimony of 2 key witnesses.

Bowen’s lawyer Wendy Murphy says Lacey’s explanation doesn’t make much sense because the judge barred testimony from those two witnesses before the second trial last summer.

Murphy says the loss of those witnesses didn’t prevent Lacey from trying to prosecute Safi last summer.

Double jeopardy isn’t a bar to retrial after a mistrial, but at some point the state has to decide whether it’s worth pursuing anymore. It seems that this prosecutor reached that point.

On the heels of my post last week about hazardous duty pay comes this decision from the Appellate Court today. In State v. Damato, the Appellate Court affirmed convictions for attempted assault and murder of a prosecutor. The State alleged that the defendant sought to hire someone to hurt a prosecutor who he felt was “riding his son” in an unrelated prosecution. The defendant argued that the State did not prove that he took a substantial step towards committing the murder and assault of the prosecutor. Specifically, he argued that the evidence presented could not establish that he had followed the prosecutor and reconnoitered his residence.

In rejecting the claim, it summed up the evidence as follows:

In the case before us, the jury heard testimony that the defendant wanted to injure or kill [the prosecutor]. The jury also heard [witness one's] testimony that the defendant had told [witness one] that he had somebody follow [the prosecutor] to Steve’s Boston Seafood restaurant and [witness two's] testimony that the defendant provided detailed information about [the prosecutor's] place of residence. [Witness two] testified that the defendant ‘‘mentioned an address . . . he says the name of a house on a dead-end street, across the railroad tracks. . . . [The defendant] told [witness two] where [the prosecutor] lives. . . . He said it was on a dead-end street, across some tracks and accessible by boat.’’ The defendant also told [witness two] that there were bushes on the property that one could go through to get to the house. The jury heard [testimony from the prosecutor that confirmed that the above descriptions were true].

The Court also rejected a claim of instructional error because the jury instruction mirrored what the defendant requested and then went on to reject a claim that the trial court failed to give, sua sponte, an instruction on jailhouse informant credibility because it was up to the defendant to request it. Finally, there was a claim of improper admission of prior misconduct and rebuttal testimony. Both were rejected.

Next up, State v. Nelson. The court rejected a claim that there was insufficient evidence to prove that he conspired to use a knife from the victim’s home in the commission of the robbery. Basically, defendant and co-defendant broke into victim’s house to rob him. While there, defendant used a knife from the house to hurt the victim. The Court said that there doesn’t need to be an express agreement to prove conspiracy and they could have formed the intent while in the commission of the crime. The fact that he didn’t bring the knife with him doesn’t mean anything.

The court also rejected a claim that a 911 recording made by the victim while he was tied up in his car, just after the defendants left him somewhere was improper as it was not an excited utterance. The focus of the claim was that the victim did not have the opportunity to observe what he later spontaneously uttered.

The test of whether a declarant sufficiently observed the subject of his spontaneous utterance is ‘‘whether the evidence supports a finding that the declarant had an opportunity to observe the matters described in his or her statement.’’ State v. Westberry, 68 Conn. App. 622, 631 (2002). In this case, the state presented evidence that [the victim] not only observed but also experienced the events in question.

Another of the defendant’s claims failed because he did not preserve it at trial and Golding review doesn’t apply to evidentiary claims (that the trial court improperly instructed the jury it could consider the 911 call for its substance).

Then there was a habeas denial, which was affirmed: Vidro v. Comm’r. Nothing noteworthy, except for the fact that trial counsel was Norm.

Finally, there’s Kaddah v. Comm’r, in which the Appellate Court goes into the merits of the IAC claim (it was against prior habeas counsel), but then ends by affirming, deciding that the denial of petition for certification to appeal wasn’t an abuse of discretion.

You’re in on trial. The State has put on it’s main witness. Oops! They forgot to ask the most important question. You quietly mumble: “no cross!”, elated inside. Then a squeaky voice speaks up and asks that very question. Wait! Who said that?

If you’re in Florida, the answer very well might be: The Jury. After some “tweaks” in their jury system, Florida judges must now allow jurors to take notes and, in civil cases, ask questions of witness. In criminal trials, they will stick to their “old” practice of having jurors submit questions which the judge then decides whether they should be asked of the witness or not.

According to the article, these changes “follow a nationwide trend toward fuller participation by the citizen deciders of fact.” Huh? Where am I living? What nationwide trend? What other jurisdictions permit this?

It sounds cute, I know it does. Sensible, that does not make it. Take the really, really stupid hypothetical I opened this post with. That damn squeaky voiced juror just diluted the State’s burden of proof! What if it’s a leading question? Or calls for hearsay? Can you object? How does this work!? Permit me to say: Does Not Compute.

After the most comprehensive review ever of Florida’s jury system, a state committee decided the potential benefits “strongly outweigh” any potential harm. The committee, which included judges, attorneys and former jurors, said jurors should be treated as full partners, not bystanders, at trials.

This is the bizarro-world legal system. Juries are not “partners” (can we at least use less dumb terms?). In fact, we’ve got a perfectly good term for them already: Jurors.

Some local judges have allowed both practices for years. Circuit Judge Doug Baird, who hears civil cases in Pinellas County, is one of them.

“Actually, the juries come up with some pretty good questions,” he said.

Good for them, Judge Baird, but it’s not their damn job. You know what, why don’t we dispense with attorneys altogether and let the parties be subject to intense questioning by juries, who then retire to deliberate their verdict. Heck, why need a Judge? Or the rules of evidence? Or law schools (oh, sorry)?

There are limits, of course. Jurors can’t blurt out legally inappropriate questions such as, “Has the defendant been to prison before?” Instead, they write down their questions, hand them to a bailiff and wait as the judge and attorneys discuss whether a question is relevant to the case.

Right. So when the smart juror writes a question that the negligent prosecutor forgot to ask, what do we do then?

Terrible, terrible idea. Why must we tinker so?

Image license info here.

This is just a very bizarre story all around. An Illinois man filed a post-conviction motion seeking to have his conviction vacated because of juror misconduct. Charles Campbell was convicted in 1992. One of the jurors in his trial, Robert Taylor, was called to jury duty again in 2002. During voir dire in 2002, he stated that he could not be on the jury, because he still felt guilty about what he did to Campbell back in 1992.

What he did was acquiesce to the other jurors and voted for a conviction even though he felt that the State had not met its burden. He, along with two other holdouts, had caved in and convicted Campbell.

Based on this,  Campbell’s attorney filed a post-conviction motion. Taylor showed up to testify. The judge told him that he could face criminal charges for juror misconduct. Yeah, in essence, the man was threatened with prosecution. He did what any sane person would do: shut the hell up.

[Ninth Circuit Judge] Stewart then told the juror there was a possibility of criminal charges being filed against him for jury misconduct depending on his potential testimony. Stewart warned any of his testimony Tuesday may be held against him and advised him of his right to remain silent. “To me, it was not that big of deal,” Taylor said. “I was taught that right always wins. But if it is going to incriminate me, I’m not going to say anything more. Sorry.” Taylor was then dismissed.

I am the only one appalled by this? He faces criminal charges because on a jury 10 years ago he acquiesced? Should we permit this? Whither justice? I understand that we want to prevent juries being influenced or relying on information not in the record, but this? So a man, who may not have been convicted if three jurors hadn’t “given up”, cannot get testimony from the jurors.

I do not understand what the misconduct was on the part of this juror. If the rule is that juries are not permitted to call into doubt the veracity of their verdict by testimony or affidavit, then that rule needs to be re-examined. It seems to me that it serves no purpose other than to protect erroneous verdicts.

H/T: EvidenceProf

More opinions than you can shake a stick at and yet not a single win. Not one good thing for defendants. Well that’s not true. There’s one nice footnote. Let’s get to that first.

In State v. Carmona, the Court denied an appeal from (stay with me here) the trial court’s denial of a Motion to Correct. A Mtn to Correct is CT’s procedural vehicle for raising certain claims before bringing them via a petition for writ of habeas corpus. Mr. Carmona claimed that the State breached his plea agreement and that the DOC’s application of jail credit violated double jeopardy. The trial court (and the State) both said that the habeas court was the appropriate place to raise those claims.

What brings joy, however, is that apparently the State, in the habeas court, claimed procedural default for not raising these claims in the trial court! The State’s position, essentially, was: Can’t go to the trial court because you should go to the habeas court and you can’t go to habeas court because you should go to the trial court, where you can’t go because you….well, you get it. The Appellate Court dropped this gem:

Despite that representation to this court, in her return to the defendant’s amended petition for a writ of habeas corpus filed during the pendency of this appeal, the commissioner of correction nevertheless has alleged a procedural default on the part of the defendant for his alleged failure to appeal from the trial court’s ruling on the motion to correct his sentence in the present case. We find that incongruity troubling.

Next comes State v. Hannah, in which the defendant claimed that the court erred in not admitting two recorded phone conversations that proved his innocence. The court found that the defendant did not create an adequate record by not transcribing the phone conversations, so it could not review the claim. It is notable because some of the participants have nicknames like “Too Cool” and “Wheatie”.

The next loss is State v. David O, in which the defendant claimed prosecutorial misconduct impropriety. The claim was that the prosecutor talked about the law and appealed to the jury’s emotions. You know how this ends.

In the first of the habeas cases (and the summary dismissals), Bowens v. Comm’r, the court found that the habeas court’s decision to deny cert. to appeal was not an abuse of discretion. That’s when I stopped reading. That’s when you should, too.

In another habeas case, Madagoski v. Comm’r, the petitioner claimed that he was denied his right to Due Process because the state didn’t preserve the evidence, namely a van, indefinitely. The Court couldn’t even find that the habeas court abused its discretion in denying cert. to appeal.

Back to the direct appeals. In State v. Ruben T, the defendant was tried before a three-judge panel. He claimed that the panel incorrectly found that he had not proven EED and also erroneously admitted testimony under the state of mind exception to hearsay. The panel found (and was affirmed) that the defendant’s loss of self-control was not caused by ‘‘an extremely unusual and overwhelming state that was not mere annoyance or unhappiness.’’

Back to habeas. In Wooten v. Comm’r, the petitioner raised ex-post facto, equal protection and separation of powers challenges to the retroactive application of a judicial decision interpreting a jail credit statute. Quite summarily denied. Which is disappointing, because there are about 5600 inmates affected by this retroactive application.

Finally, in State v. Valentin, the claim was that the judge inadequately charged the jury on self-defense and on reasonable doubt. The claim was rejected because it was not preserved and it did not rise to one of Constitutional magnitude.

But that’s only 8, you say! That is correct. The other three were disposed of with Memorandum Decisions. Which basically means an opinion wouldn’t have been worth the paper it was written on. Or that they didn’t want to spend the time it would have taken to print the opinion discussing it.

By the way, if you’re a public defender in CT, you need to check out the revitalized New Case News. The powers that be (you know who I’m talking about) have done a terrific job with it.

Juries are often likened to the black box. You know stuff goes in and you know stuff comes out. What happens inside the box, however, is a mystery. People can guess, people can opine (some make careers out of it), but you never really know how a jury is going to behave. Until one of them speaks out, that is.

This unfortunate tale comes from New York, where, after verdict, a juror spoke up and revealed that they misunderstood the judge’s instructions.

The anonymous juror contended that at least six others on the 12-member jury would have found Joseph Cammarano not guilty of gang assault if they had understood the charge properly.

Justice Robert J. Collini had instructed jurors to find Cammarano, 18, guilty of gang assault only if they determined he had stabbed 14-year-old Richard Orloski.

The juror claimed the panel mistook the charge to mean Cammarano should be found guilty of gang assault if they believed he had participated in the Dongan Hills playground melee, regardless of whether he stabbed Orloski.

“We never intended to find (Cammarano) responsible for Richard Orloski’s stabbing, period,” the juror contended.

Part of the cause of this problem is the discretion of judges to permit note taking during trials. This judge did not allow it. The jury didn’t have a written copy of his charge available during deliberations, but requested a read-back of his orders on how to apply the charge in their verdict.

Collini reread his charge on gang assault, and also repeated instructions on three additional charges.

“We had several things read back to us. It was confusing,” the juror contended, claiming that on their return to the jury room, the panelists were still unclear about how to interpret Cammarano’s role in a brawl involving 30 youths in the playground next to PS 52 on Feb. 4, 2006.

I have never understood why note-taking is not permitted during trials. With so much at stake, wouldn’t the interests of justice be best served by the jury accurately remembering the testimony? Memories are faulty, so shouldn’t we aid in their recollection by at least permitting them to take notes? What is this resistance to taking notes?

That’s not all, though. This jury exhibited the classic symptoms of a jury that just wanted to go home:

Describing the atmosphere behind closed doors as including “a lot of cursing and arguing,” the juror claimed the panel was “absolutely split down the middle” as to whether Cammarano stabbed Orloski.

After deliberations began, another member “refused to spend another day” and threatened to hang up the entire panel and force a mistrial if they had to come back on Friday, according to the anonymous juror.

While he was correctly convicted on other counts (and therefore his total exposure doesn’t change much), we still have a man who was convicted of something he shouldn’t have been. That’s unacceptable.

H/T: Indefensible

Update: Scott notes the most obvious downside of juries taking notes: They don’t pay attention to what is currently being said. I don’t think this is as big a problem as he makes it out to be - super juror and what not - and can be rectified with a simple jury instruction. The notes are to assist in recall and should be treated as such. He also points out that notes aren’t perfect and we have a system of perfect recall: reading back the testimony. Sure, that may work in some cases, where the information the jury is seeking is a large part of the case and they are constantly reminded of it. But what of something that seems minor, but could be pivotal? If they don’t have notes to remind them, how will they know what to have read back?

At the very least, the jury should have a copy of the charge.

Apparently, scientists have developed a new tool to “freeze” crime scene memories.

The tool - a self-administered interview applied by witnesses at crime scenes - combats natural memory decay by using the latest research in cognitive psychology techniques. It ‘freezes’ images and details of crime scenes and perpetrators in the minds of witnesses, particularly small and seemingly insignificant details that provide major leads for detectives that turn out to be crucial in solving cases.

While this might have utility in memorizing details from the scene itself, I have to question its usefulness in remembering descriptions of perpetrators. Part of the problem with eyewitness identification testimony (and partly why experts are starting to be used) is eyewitness confidence. Studies have shown that there is very little correlation between eyewitness confidence and accuracy. I fear that this tool might serve to cement incorrect recollections of the perpetrator.

It is a tool that seems to work, though:

Tests at simulated crimes scenes were remarkable with witnesses using the tool recalling forensically relevant information 42 percent more accurate than other witnesses who were simply asked to ‘report as much as you can remember’. The tests also revealed the witnesses using the self-administered interview (SAI) were 44 percent more correct with details about people - therefore, possible suspects - who had been involved in the event.

In another test there was a delay of seven days between witnessing the event and providing a full account. Half the participants completed self-administered interviews after witnessing the event while the other participants simply gave their name and contact details - as normally happens to a large number of witnesses at crime incidents. Scientists tested the group after seven days and found participants who had completed the SAI were still reporting almost 30 per cent more correct details than other witnesses.

That’s just staggering. This goes to show that in every case we have involving eyewitness testimony, we must explore any and all challenges to its reliability and perhaps retain an expert. This cannot be ignored any more in practice. For the CT practitioner, Lisa Steele’s Law Review article at 25 Quinnipiac L. Rev. 799 is very helpful (thanks to JC).

Would you believe it? Two reversals in two weeks! Two! The Appellate Court yesterday reversed a conviction on the grounds that a Motion to Suppress should have been granted on an issue, apparently, of first impression in Connecticut.

We conclude that the defendant was unlawfully detained, that his consent to search the vehicle was tainted by that illegal detention and that the state failed to purge the taint of the illegal detention.

The defendant was stopped for illegal lane changes. After obtaining his license and determining that there were no outstanding warrants for him, the cop wrote him a ticket and then started inquiring about any other illegal activity. The Court was asked to determine whether the extension of the stop was supported by any reasonable suspicion supported by articulable facts that a crime has been or is being committed.

The Court held that the extension of the stop was not supported by “R & AS” and that his subsequent consent to search the car was not voluntary.

Reversed! (Of course, as is par for the course, here’s the dissent.)

Here’s some context for the title:

For a while now, we have heard about exonerations obtained due to DNA testing. The current number from the Innocence Project stands at, I believe, 208. One of the more common refrains you hear from champions of innocence is that there are thousands more in jail that are innocent and have no way of proving it. In some cases, there is no DNA evidence and in some, it is lost.

The Denver Post did a terrific series last month on lost evidence, which they called “Trashing the Truth“. (I apologize if its been covered in the blogosphere before - I just stumbled across it.) The Post engaged in a detailed investigation of evidence rooms across the country and profiled several cases where DNA evidence has been lost or destroyed - willfully or otherwise - and innocence bids are foreclosed.

Authorities across the country have lost, mishandled or destroyed tens of thousands of DNA samples since genetic fingerprinting revolutionized crime solving 20 years ago.

Evidence from cold cases goes misplaced across Colorado.

Delicate traces of human biology sit stuffed into pizza and fried-chicken boxes in rat-infested New Orleans evidence vaults.

And specimens are dumped by the truckload in Los Angeles, Houston and New York - sometimes soon after high-profile exonerations.

In a country whose prime-time TV lineup glorifies DNA forensics, many real-life evidence vaults are underfunded and mismanaged, struggling to keep up with technological advances and lagging behind most corner groceries in the way they track valuable crime-scene items.

Facing real-world training and space challenges, even the best-intentioned clerks commonly toss DNA samples, especially from old cases, in what one expert calls the “sledge-o-matic approach to clearing out evidence rooms.”

“You can’t keep everything,” said Arthur Morrell, Orleans Parish clerk of Criminal Court.

The Denver Post examined purges in 10 states and found that authorities destroyed biological evidence in nearly 6,000 rape and murder cases during the past decade, rendering them virtually unsolvable. Over the past three decades, the loss or destruction of DNA evidence in 28 states has undermined efforts by at least 141 prisoners to prove their innocence, The Post has found.

In this age of high profile DNA cases, it is incumbent upon states to reorganize their storage procedures and provide high-tech facilities. If the criminal justice system is indeed a pursuit of the truth and of justice, then it cannot simultaneously aid injustice by destroying evidence.

There are just far too many instances and far too many inmates profiled by the Post. I strongly recommend that you take this Sunday afternoon to read through some of them, available at the link above. One of the higher profile innocence bids is that of Tim Masters, who was convicted with virtually no evidence, but primarily on some sketches that he had done (he was 15) and an FBI profile that was never created.

Edit: Another one to look at is this piece on Clarence Moses-El, who was first suspected of raping a woman because his name came to her in a dream. (I kid you not.) The three people she initially named (right after the incident) were never interviewed by police. Finally, years after his conviction, a judge ordered DNA testing. One month later, the evidence was destroyed by the police department.

Some of the comments in these stories by law enforcement officials and prosecutors are just disgusting. The arguments they put forth in opposing motions for DNA testing are very very disturbing and make you wonder if they really are seeking justice.

Yesterday, the CT Supreme Court issued State v. Randolph [pdf], reversing a murder conviction. The Court agreed with the defendant that he should not have been tried together for two separate offenses. Here is the standard for severance in Connecticut:

The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions. . . .

Consequently, we have identified several factors that a trial court should consider in deciding whether a severance may be necessary to avoid undue prejudice resulting from consolidation of multiple charges for trial. These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. . . . If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.’’

Update: Graciously agreeing to my request, the EyeID blog has this post about CT’s reform bill and, more generally, the interaction between the good goals of such bills and the realities of politics.

That said, we closely followed ID legislation from around United States this session, and one pretty hard and fast rule developed: Though virtually all bills started out looking like Connecticut’s — with a host of specific best practice requirements — the key to passage seemed to be pulling back from the specific and compromising on legislation that mandates best practices generally. These new laws then established some sort of committee (with law enforcment members and others) to draft best practice requirements. (I’m thinking about West Virginia and Maryland here). These bills also sometimes included a few more specific, non-controversial requirements, generally instructions to witnesses and written recording requirements.

The “generally-requiring-best-practices-but-leaving-the-
specifics-to-commitee” approach is not necessarily a bad development. Police generally seem strongly opposed to a specific list of requirements, but not opposed in general to reform and to good science. A best practices approach allows some time for adjustment, and also allows police to “buy-in” to the reforms. Of course, if police try to delay or defeat the drafting of best practices after these sorts of bills pass, then more specific legislation can always be passed later. But the jurisdictions that have adopted a best-practices-by-Committee approach (for example, Wisconsin) have not experienced those problems, at least not to my knowledge. The more common reaction of police who consider the reforms in good faith is eventual strong support.

Original post: In my last post on the recently concluded legislative session, I ran down a list of the “winners” and “losers”. Over the next few days, I will attempt to go through each one individually. I want to start, though, with a bill that didn’t even make it out of committee. The eyewitness identification reform bill (HB 1240). The statement of purpose for this bill reads:

To improve the reliability of eyewitness identification by establishing procedures for conducting a police lineup including having a lineup administrator who does not know which person is suspected as the perpetrator, informing the eyewitness that the perpetrator might not be in the lineup and presenting the persons or photographs in a lineup sequentially rather than simultaneously.

There are a lot of good provisions in this bill, such as

(1) When practicable, the person conducting the identification procedure shall be a person who is not aware of which person in the photo lineup or live lineup is suspected as the perpetrator of the offense;

(2) The photo lineup and live lineup identification procedures shall be conducted in sequence so that the eyewitness is shown each photograph or each person one at a time rather than viewing the photographs or the persons simultaneously

The eyewitness must also be instructed that the suspect may not be a part of the lineup, that he/she should not feel compelled to make an ID, that they will be viewed one at a time in random order.

Also,

(4) The photo lineup or live lineup shall be composed so that the fillers generally fit the description of the person suspected as the perpetrator and, in the case of a photo lineup, so that the photograph of the person suspected as the perpetrator resembles his or her appearance at the time of the offense and does not unduly stand out;

(5) If the eyewitness has previously viewed a photo lineup or live lineup in connection with the identification of another person suspected of involvement in the offense, the fillers in the lineup in which the person suspected as the perpetrator participates shall be different from the fillers used in any prior lineups;

(6) At least five fillers shall be included in the photo lineup and at least four fillers shall be included in the live lineup, in addition to the person suspected as the perpetrator;

(8) In a live lineup, any identification actions, such as speaking or making gestures or other movements, shall be performed by all lineup participants;

(12) Nothing shall be said to the eyewitness that might influence the eyewitness’s selection of the person suspected as the perpetrator;

(13) If the eyewitness identifies a person as the perpetrator, the eyewitness shall not be provided any information concerning such person prior to obtaining the eyewitness’s statement that he or she is certain of the selection;

(14) A written record of the identification procedure shall be made…

Unfortunately, this bill died in committee. Perhaps the experts at the EyeID blog can take a look at the provisions and see if they really are worthwhile.

The good news, as I previously reported, is that the legislature did approve funding for a pilot project for the next two years. Whether more than one jurisdiction signs up for this pilot project and implements the recommended changes remains to be seen.

Yesterday the Senate passed SB 1458 [scroll down to the first full bill discussed], also called “Jessica’s Law”. I’ve blogged about this bill in the past and it really does provide for stiff penalties. It increases the mandatory minimum sentence for sexual assault of a minor under the age of thirteen to twenty five years.

This is also the bill that creates the “tender years” exception to hearsay. My thoughts on this are well documented. I do not like it and I don’t think I ever will.

Not all is bad, though. They amended the “Romeo and Juliet” law to increase the permissible age difference between participants to three years instead of two.

The sad thing is that the bill was based partly on incorrect information:

While the current trend among lawmakers is to move away from mandatory minimum prison terms, Kissel said this was one instance in which such enforcement is necessary. Research has shown that many sex offenders are prone to a pattern of behavior and could offend again if given the opportunity, [Senator] Kissel said.

No, not many. The latest studies show that sex offenders have the lowest recidivism rates. Also notable is the fact that law enforcement agencies have come out against high mandatory-minimums because it makes it difficult to prosecute. Defendants are less likely to accept plea deals and prosecutors have less flexibility in structuring an appropriate sentence.

Here’s another news article with a quote from a prosecutor:

Stephen Sedensky, the State’s Attorney for Danbury Superior Court, applauded lawmakers for taking steps to protect sexual assault victims.

“The legislature realizes the seriousness of these type of offenses and wants the sentences to reflect that,” he said.

He added that the 25-year mandatory minimum for the aggravated sexual assault charge could lead to fewer defendants taking a plea agreement and more cases going to trial.

“It’s too soon to tell whether that will be good for the victims,” he said, noting that the victims could be called upon to testify during a trial. “I’m anxious to see how it will play out in court.”

Well, time will tell how these statutes are utilized and whether they stand up to Constitutional muster.

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