sixth amendment
To have the Assistance of Counsel for his defence
Feb 2nd
Clarence Earl Gideon, we salute you. On the first go around, sans counsel:
and after the landmark decision:
HT: Tannebaum
Face-to-ski mask: a defendant’s right to confront his cat burglar
Nov 23rd
Do you feel lucky?
I’m not quite sure how to introduce this story (and the case that it covers) in a pithy manner, so I’m just going to get to it: New Hampshire’s Supreme Court recently ruled that it’s okay for a police officer to testify at a criminal trial while wearing a ski-mask to protect his identity because he was working in an undercover unit at the time of the trial.
Yes, you read that right. In State of New Hampshire v. Jose Hernandez, a police officer who had conducted an interview with the complaining witness was permitted to sit there like a cat burglar, with a ski mask on his face. The State’s reasoning – bought by the trial court – was that the officer’s identity needed to be protected. Nevermind the fact that the jury viewed the interview with the complainant in which his face was uncovered and that everyone knew his name. Oh and that pesky Confrontation Clause thing.
Let’s look at that. The Confrontation Clause provides that:
In all criminal prosecutions, the accused shall enjoy the right to [...] be confronted with the witnesses against him.
Federal court decisions have interpreted this to mean eyeball-to-eyeball confrontation. The confrontation clause affords the criminal defendant two types of protections: “the right physically to face those who testify against him, and the right to conduct cross-examination.” Pennsylvania v. Ritchie, 480 U.S. 39 (1987). And there’s a reason for this. The accuser, or any other witnesses on the accusers behalf, should have to face not only the defendant, but the jury that is deciding the defendant’s fate. The jury should have the opportunity to observe the witness and the witnesses reactions and demeanor.
The Connecticut Supreme Court has not yet considered (that I could find) whether a witness testifying in disguise violates the Confrontation Clause. It has, however, considered whether an accuser can testify outside the presence of the defendant and not in court. In State v. Jarzbek, the Court permitted the videotaping of a minor who had accused the defendant of sexual abuse. While the court in Jarzbek ultimately permitted the introduction of videotaped testimony instead of live testimony at the trial, the jury had the opportunity to observe the demeanor of the complainant. Jarzbek, however, emphasized the importance of having the ability to look the accuser (or by extrapolation a witness) in the eye and having that witness face the jury:
Might OJ Simpson have a Sanders claim?
Dec 8th
how did I end up back here?
One interesting piece of information in this OJ Simpson brouhaha is the revelation that he may have rejected a plea offer for a sentence as low as 3 years. The first word came from a friend of The Juice and it was later confirmed by his lawyer.
Sanders, in the post title, refers to a CT Superior Court decision: Sanders v. Warden1. Obviously, OJ wouldn’t get the benefit of this particular case, because, as much as Mohegan Sun wants it to be, this is not Vegas. The principle Sanders stands for is borrowed from a 1996 Second Circuit decision: Boria v. Keane.
Selection, naturally
Dec 6th
to vote or not to vote
What has always struck me as rather curious about the various jurisdictions in the US is their disparate ways of employing judges and state’s attorneys and public defenders. Some states elect their officials, some states select them.
In Connectictut, I guess one could say that the state’s attorneys, public defenders and judges are akin to civil servants. It is, fundamentally, a merit-based system, where you are appointed and then promoted based on your abilites and performance. Not all states do it this way and I wonder why. Two recent stories would highlight my query:
Are an informant’s questions testimonial?
Nov 21st
A co-conspirator is in jail. The police send in a confidential informant, wired, to talk to the co-conspirator. The informant asks the co-conspirator questions about the crime, prodding him, making assertive statements which elicit mono-syllabic responses from the subject.
The State attempts to use the transcription of the tape of that conversation as evidence against the defendant. Clearly, the co-conspirator had no idea that he was talking to someone acting for law enforcement or that his words would be used at trial. The question, though, is whether the informant’s questions testimonial under Crawford and thus inadmissible?
The CT Supreme Court recently faced this question in State v. Smith [pdf]. The Court notes:
In the present case, we view Williams’ recorded statements as falling into three separate categories: (1) nonassertive vocalizations, e.g., ‘‘mm-hmm’’ or ‘‘yeah’’; (2) questions Williams directly posed to Estrella about the crime; and (3) statements Williams made that directly implicated Estrella or the defendant in the commission of the crime.
The Court is quick to decide that the first category is non-testimonial. Deciding whether those that fall into the second category is a matter of context, the Court writes. Despite some leading questions, the Court finds that most of those questions about the crime were to provide context to other questions and were not assertions of fact.
In addressing the final category, the Court finds that the informant was clearly aware that this entire conversation was being taped with an eye to a prosecution. In fact, it was the informant who approached the authorities to obtain favor in his cases. The Court does not hesitate in finding those statements testimonial and since the informant was unavailable at trial, a violation of his Confrontation Clause right.
The defendant still lost on appeal, however, due to our good friend Harmless Error. The Court finds that the informants assertive statements were merely cumulative.
Still, it’s a good start and something to keep in mind in future cases. Where the transcript of any such conversation between the defendant and an informant is dominated by the informant, the CT Supreme Court can be fairly said to have ruled that those statements are testimonial.
Confronting swastikas
Nov 20th
You represent a man who belongs to an ethnic minority, charged with shooting a weapon illegally. The state’s main witness is his acquaintance, a caucasian male. He gives some damning and incrimination testimony. Then you notice tatoos on his arm. Swastikas. Do you cross-examine about any bias he might harbor toward a man of color?
That’s pretty close to the scenario that unfolded in U.S. v. Figueroa, in which the Second Circuit recently ruled that it was an abuse of discretion for the trial court to bar such cross-examination.
Judge Sack writing for a panel of the Second decided:
Inasmuch as the tattoos suggested that Wright harbored animus against racial or ethic minority groups and their members, they were relevant to and probative of Wright’s credibility, bias and a motive to lie when testifying against Figueroa
…
The fact that a witness customarily carries or displays a swastika, as a tattoo or otherwise, therefore would tend to suggest that he or she holds racial, religious or ethnic prejudices. That in turn suggests a basis on which the jury could find the witness’s testimony not credible.
It makes sense. The point of questioning the witnesses affiliation with any white supremacist groups is precisely to determine whether he had any motivation for fabricating his testimony. A lot of people who sport swastika tattoos make no bones (hah) about the fact that they consider themselves racially superior to others. And when you harbor such deep bias against another person on the basis of their skin color, it is a fair question whether that in of itself is sufficient to render the testimony incredible.
So why is there not a more excited tone in this post? Because the Second Circuit eventually ruled that it was harmless error. D’oh!
[The swastika, incidentally, has a long history that is not all Nazi-related. In some cultures, it is a revered symbol, which signifies good, as opposed to evil.]
photoGideon’s promise: Determining who benefits
Sep 16th
Gideon made his promise a long time ago and States began providing indigent defendants with counsel in criminal cases. Much has been said over the years about the promise being fulfilled and states not providing counsel, but the Brennan Center for Justice at NYU Law tackles the flip side of the problem in a new report [pdf]: just who is eligible for counsel?
The report examines guidelines across the nation and determines that there is no one consistent standard for determining eligibility. People who really should get counsel don’t and people who shouldn’t, do. SCOTUS has never defined what the eligibility standards should be, so States have been free to set their own. I know CT follows the Federal Poverty Guidelines, but other states do not. Some states disqualify defendants if they own a home or a car. Given the cost of private counsel, it may not be feasible for even people with “equity” to hire their own attorneys. This results in them either hiring bad lawyers or representing themselves and taking bad deals.
The report makes several recommendations and offers guidelines for eligibility determination:
- Screen people seeking the appointment of counsel to ensure that they are financially eligible.
- Apply screening criteria and processes uniformly, and commit them to writing.
- Ensure that screening is performed by someone who does not have a conflict of interest.
- Ensure that counsel is provided to those unable to afford it.
- Streamline screening to speed up the process and save money.
- Ensure that required procedural protections are in place.
The third recommendation above is the product of some interesting findings. For example, in some jurisdictions, prosecutors make the initial eligibility determination. (!) In other jurisdictions, they can challenge a determination of eligibility.
The report also suggests that it is unethical for the public defender’s office itself to make eligibility determinations, because it creates a conflict of interest.
Defenders’ personal interests come into play in several ways when they are asked to screen their own clients. For example, in order to provide adequate representation to their clients, public defenders must maintain manageable caseloads. For salaried defenders, and defenders with a contract to represent all defendants in a given geographic area, this may create an incentive to conclude that potential clients are ineligible for representation. Thus, an assistant public defender in Schuyler County, New York, told investigators from the NAACP Legal Defense and Education Fund “that he uses eligibility requirements to limit the number of clients he will represent.” Defenders may also have an incentive to reject cases that are time-intensive, controversial, or undesirable in some other way. The Schuyler County defender exemplifies this risk, too – he reported “telling eligible defendants that if they are willing to work out a deal with the DA that day, he will represent them.”
This is interesting and I’m not sure I agree. In CT, usually it is the investigator from the public defender’s office who does the intake and determines eligibility. This job is also charged to the public defender’s office by statute. I’ll have to give this conflict angle more thought.
The report does recommend, however, that if public defenders are making eligibility determinations, such determination not be made by the attorney who will represent the client.
Overall, I think these are good recommendations and my experience in CT has been that we err on the side of caution and try to represent as many clients as possible. It’s not like this will get any easier. According to a new report, prosecutions are up.
What’s your experience in other states?
Gideon’s turning in his grave
Sep 3rd
From the very same state that gave us Gideon v. Wainwright comes the news that their public defender system is in dire straits.
A judge in Miami ruled today that the public defender system is so overburdened and crushed by caseload that they can stop accepting some cases until the situation improves.
Circuit Judge Stanford Blake found that Public Defender Bennett Brummer’s office has absorbed 12.6 percent in budget cuts over the last two years, while its criminal caseload has rocketed by 29 percent since 2004.
“The evidence shows that the number of active cases is so high that the assistant public defenders are, at best, providing minimal competent representation to the accused,” Blake wrote.
“While the court is concerned that there not be chaos in the criminal justice system, the court must also serve as the protector of due process and meaningful representation of the accused,” the judge added.
Starting mid-September, around 2000 cases a month will have to be shipped out to private counsel, because public defenders are unable to handle them.
The state (and state’s attorneys) of course hates being told what to do:
“This is a political matter that should have stayed in the political system,” Rundle said. “No one should create a constitutional crisis that jeopardizes the integrity of our criminal justice system.”
Maybe the funding of public defender systems is a political matter, but the representation of over 2000 defendants a month is certainly not. It is a legal and constitutional issue and every defendant should receive competent representation. If the political system that this prosecutor seems so fond of actually contributes to the situation that has resulted, then why should fixing this problem be left up to them? It’s like saying sentencing should be left up to defendants.
There was nowhere else for the public defenders to turn. The Court stepped in and did what it had to and what it should have.
Scoplaw, one of those hard-working public defenders in Miami, weighs in.
Undoing Gideon’s promise
Jun 30th
As public defender offices across the country are cutting budgets and closing up shop, and at the same time that SCOTUS gave fresh guidance on when the right to counsel attaches, it is important to reflect on the place of the public defender in our criminal justice system today.
With almost 13% of all households in the US falling below the federal poverty line (and 20% earning less than $20K a year), the number of indigent defendants is astronomical. Connecticut public defenders alone were appointed to over 80,000 cases in ’06-’07 (and that’s not including appeals and habeas corpus cases). Our public defenders represented over 75% of the caseload of Part A courts and roughly half the caseload of Part B courts.
That’s a lot of work and a lot of individuals who’d go without counsel if the Supreme Court were to roll back Gideon, as some have suggested in the last week.
The anti-appointed counsel position is one that I’ve never understood. And I don’t say this as a public defender, but rather as a lawyer and a citizen. There is no logical reason for not having appointed counsel in a criminal justice system where almost everything is a crime with harsh penalties (or any other adversarial system, for that matter).
What would these anti-Gideonites have happen? That only the rich can afford counsel and the rest get railroaded? That the State have to put on its case with minimal – and often counterproductive – defense? That individuals who have no knowledge of laws, and often little education, have the responsibility of wading through intricate legislation in order to defend themselves? Imagine telling poor people that they have to diagnose themselves and perform surgery on themselves.
The result of any such ruling would be devastating. As if there aren’t enough cries already that the system is heavily prejudiced against minorities and the poor. As if there isn’t a perception already that you can buy justice. Imagine the resultant impact on the moral and social fabric of the country if the Court were to all of a sudden decide that the poor man (read: in most cases the minority) would now have to match up to the awesome power of the State all by himself. Nothing short of revolt, I tell you.
And such anti-appointed counsel positions have no basis in reality or the text of the Constitution. SCOTUS had already construed the Sixth Amendment to mean that the Federal government must provide counsel to indigent defendants, in Johnson v. Zerbst. The essence of this right is well-summed up by Justice Sutherland in Powell v. Alabama (which preceeded Betts):
“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
Justice Clark, concurring in Gideon:
That the Sixth Amendment requires appointment of counsel in “all criminal prosecutions” is clear, both from the language of the Amendment and from this Court’s interpretation. See Johnson v. Zerbst, 304 U.S. 458 (1938). It is equally clear from the above cases, all decided after Betts v. Brady, 316 U.S. 455 (1942), that the Fourteenth Amendment requires such appointment in all prosecutions for capital crimes. The Court’s decision today, then, does no more than erase a distinction which has no basis in logic and an increasingly eroded basis in authority.
To end this post, I’ve uploaded the audio of the oral argument in Gideon v. Wainwright, which you can listen to after the fold below. Be warned, though, that oral argument lasted for over 3 hours!
Roth-very narrow
Jun 23rd
SCOTUS today issued its opinion in Rothgery v. Gillespie County [pdf], which has caused some discussion in the blawgosphere. The prevalent theme in this discussion is a sense of being unfulfilled. A sort of “that’s it?”
There’s also some confusion as to what the decision really means.
Only one thing is clear: It is narrow. Very, very, narrow.
Our holding is narrow. We do not decide whether the 6-month delay in appointment of counsel resulted in prejudice to Rothgery’s Sixth Amendment rights, and have no occasion to consider what standards should apply in deciding this. We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.
So the decision was on a small, technical issue and the case will be sent back to the Fifth Circuit to determine whether any of Rothgery’s rights were actually violated (remember, this is a 1983 case).
So if they’d left it at that, it’d be fine. But then there’s this other business (from J. Alito’s concurrence):
As I interpret our precedents, the term “attachment” signifies nothing more than the beginning of the defendant’s prosecution. It does not mark the beginning of a substantive entitlement to the assistance of counsel. I write separately to elaborate on my understanding of the term “attachment” and its relationship to the Amendment’s substantive guarantee of “the Assistance of Counsel for [the] defence.” The Sixth Amendment provides in pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” The Amendment thus defines the scope of the right to counsel in three ways: It provides who may assert the right (“the accused”); when the right may be asserted (“[i]n all criminal prosecutions”); and what the right guarantees (“the right . . . to have the Assistance of Counsel for his defence”). It is in the context of interpreting the Amendment’s answer to the second of these questions—when the right may be asserted—that we have spoken of the right “attaching”.
Weaving together these strands of authority, I interpret the Sixth Amendment to require the appointment of counsel only after the defendant’s prosecution has begun, and then only as necessary to guarantee the defendant effective assistance at trial. Cf. McNeil, 501 U. S., at 177–178
So the criminal prosecution commences for Sixth Amendment purposes when there is an arraignment (or in Rothgery’s case – a presentment to a magistrate), but that doesn’t necessarily mean that the defendant be afforded counsel?
As Justice Alito’s concurrence notes, a finding that the right to counsel has “attached” means only that counsel must be present for “critical stages,” which are events where counsel needs to be present to preserve rights related to the forthcoming trial. There is, to date, no Supreme Court precedent that requires appointment of counsel for indigent defendants to protect rights other than trial.
So, we have no concrete decision on what is that first “critical stage”. Does the right to counsel attach only for critical stages, so in between these “critical stages”, there is no right to counsel? Or is it a critical stage from that first event all the way through to trial?
Obviously, I think the answers to these are fairly simple. There is an initial stage, say the arraignment, where a criminal prosecution is commenced. Anything that happens after that is with an eye toward a trial. So after arraignment, indictment or whatever it is in your local jurisdiction, right to counsel should attach (and a substantive right, not this incomprehensible Rothgery “right”). It only makes sense.
Some argue that there is no right to counsel during pre-trial negotiations. That is a red herring. No prosecution is undertaken with the goal of resolving it via plea bargaining. Plea bargaining is something that happens (albeit very frequently) along the way to a trial. During the plea bargaining process, the defense attorney is investigating the state’s case, conducting legal research, filing motions to dismiss/suppress, etc. It’s all with an eye toward the trial. That most cases are resolved via pleas is incidental.
Further, a plea bargain still results in a conviction (mostly) or a dismissal. If there were no right to counsel to assist in the plea bargaining process, then convictions would be obtained without counsel. There would be no one to point out the weaknesses in the State’s case; the whole system would be reduced to prosecutors vs. pro-se defendants. And then if a plea bargain goes south and case proceeds to trial, a defense attorney is placed in the position of having to undo the damage done by the pro-se defendant.
The system would not function. See previous post on IAC during plea bargaining for more.
One final point on Rothgery: The decision does not mandate, as some have suggested, that Texas appoint counsel for defendants every time someone is “presented” at a bail hearing. The decision did not address what Texas (or any other state) must do when a criminal prosecution is commenced. It simply addressed the time at which a prosecution is deemed to commence.
[The Crime and Consequences post linked to above has the throwaway line: "Of course, to be truly faithful to history the Court would have to overrule Gideon v. Wainwright, and be done with the whole appointed counsel matter." Such a statement is dangerous and possibly ignores the disastrous consequences of such an event. It merits a whole post, which will follow sometime this week.]
The invisible “trend”: banned words
Jun 11th
Alternate title: It’s better to keep your mouth shut and let people think you’re stupid…
From CrimProf and Appellate Law, this story about a growing “trend” where judges are preventing witnesses from using words that are legal conclusions. Sound familiar? The springboard for this story is the Tory Bowen case (what I call the “banned word” trial), where a State judge precluded her use of the word “rape”, among others, to describe her ordeal and she sued in Federal court.
The story cites some sort of national trend – and that voice of prosecutorial reason Joshua Marquis – in making its point.
The tender Crawford
Jun 4th
As if child sex cases weren’t difficult enough, there are a couple of disturbing developments (at least here in CT) in this arena.
The first, covered well by Norm, is a proposed change to the Connecticut Code of Evidence. Norm explains:
Proposed Section 8-10 of the Rules would permit a statement made by a child to be admissible in lieu of live testimony if the following circumstances were met: First, the court would have to find the statement trustworthy; next, the statement was not made in preparation for litigation; third the child either testifies and is subject to cross-examination or is otherwise unavailable.
I hope the Rules Committee members were giggling when they cooked this up, at least that would show they have not altogether abandoned reason. Decoded, the rule will result in trials without child witnesses; defendants will simply have to confront a cold statement.
What is most disturbing (among a lot of other disturbing things) is that last part of the third circumstance: the unavailability of children. As anyone versed with the law knows, unvailability does not mean physically unavailable; reluctance to testify qualifies. The scary part is that this unvailability requirement essentially permits the introduction of inculpatory and incriminating statements with zero opportunity to cross-examine.
Sixth Amendment? What sixth amendment? Imagine this: There will be trials conducted in which a child can accuse someone of sexual assault and never have that assertion challenged by anyone. This is truly scary stuff, folks. Lock your doors and never, ever be in the presence of children, for one allegation is all it can take to ruin your life.
One would think this is squarely covered by Crawford. The problem, however, arises in defining what is a testimonial statement. By adding this requirement, SCOTUS has provided wiggle-room (whether intentional or not) to prosecutors to introduce statements that realistically should not be admitted.
As Norm correctly points out, any time there is an initial allegation of sexual abuse, the wheels of the criminal justice start turning. Anything after that – the interviews by doctors, social workers, forensic pathologists, are for the purpose of determing who abused the child and how, not if. There are mandatory reporting requirements and the allegations are duly conveyed to the State, which duly institutes a prosecution. But yet, there has to be a determination by a trial judge, faced with a young child and their outraged family, that these statements were made with a prosecution in mind. This is extremely subjective and almost always results in the statement being admitted.
So we end up with trials where a videotaped statement by the victim is admitted into evidence and the defendant has been forced to forfeit his right to confrontation. The word of the victim is now gold and goes unchallenged. Convictions are almost a foregone conclusion and obscene sentences the norm.
This is a very, very troublesome situation and I sincerely hope that the defense bar is fighting it tooth and nail. What do you guys do to combat these situations? What’s the best tact?
Previous posts:
The problem with voir dire
May 14th
Is that sometimes you end up taking jurors you have no business taking. Like the R. Kelly trial. From media accounts:
Those jurors include an African-American woman whose husband is a Baptist pastor, a black man who identified himself as a Christian and a white executive who said he thinks Kelly is guilty.
What’s that again? A juror who has made up his mind? How can this juror possibly be seated, right? Because the law is full of legal fictions. One of these fictions is that if a juror says something extreme, he can be “rehabilitated”. (Oh, the irony.)
The white juror said he believed Kelly was guilty, but that he could give him a fair trial.
“I have two little kids,” the man said. “Child pornography is about as low as it gets.”
[Judge] Gaughan asked the man to look Kelly in the eye and promise him a fair trial.
Why do we perpetuate this nonsense? Does anyone reading this believe that this juror will “give him a fair trial”? Are we that starved for jurors that we will accept venirepersons who state that they have already decided on the guilt of the accused? Does the right to a fair trial really mean the right to the appearance of a fair trial?
I can understand the defense not pushing this too much – the judge has just created an appellate issue – but the Court should know better. In a high-profile case like this, wouldn’t you want to avoid any potential problems?
Preempting habeas
Apr 21st
Everyone that practices criminal law is probably aware of the Sixth Amendment right to effective assistance of counsel and the (usually) appropriate venue for seeking relief for a violation of that right: a petition for writ of habeas corpus. This remedy, however, is difficult to obtain and is backward-looking in nature.
The question I’m currently considering, however, is whether there is a need – or does anyone have the responsibility – to preempt habeas corpus petitions by stopping the damage while it occurs.
Norm has been blogging up a storm recently about Gerry Spence and the Fieger trial in Chicago, talking about taking the opportunity to see the master in action. Of course, when a trial lawyer as celebrated and revered as Spence is “performing”, there is much to learn. But what of the exact opposite? What of the trial where everyone is painfully aware the counsel is performing horribly?
A trial, from the perspective of the State, is the pursuit of justice and a quest for the truth. If, during that trial, the defendant (who, let us remember, is presumed innocent) is being defended in a manner that is obviously deficient, does anyone have the responsibility to step in and say, “let us stop this sham before it goes any further”? Does the judge? The prosecutor?
Does there come a point during a trial when the system has so obviously failed that to continue would be a mockery of justice? Keep in mind that I am talking about extreme cases here – cases where it is apparent either that the defense is not really doing any “defending” or that the quality of representation is so poor that a subsequent habeas becomes an almost foregone conclusion.
Or is that too heavy a burden to place on the system? There are a few things that can be done post-trial (habeas, grievance), but is there anything that can – or should – be done during a trial?
The uselessness of crossing an eyewitness
Mar 8th
Via CDW comes this fantastic new paper by Jules Epstein, which examines the problems with eyewitness identification testimony and the short-comings of using cross-examination to challenge it. It is a must read for the practitioner. The first 40 pages or so trace the history of eyewitness identification and of cross examinations and their place in our adversarial system. Then it underscores the need for expert testimony in eyewitness ID cases by shattering the myth propagated by judges and appellate courts that cross-examination will bring out any untruths.
That is because, often, eyewitness testimony does not contain untruths. The problems associated with eyewitness testimony are such that it is nearly impossible to expose them on cross.
1. Cross racial IDs: How does one go about questioning a witness regarding this sensitive issue, which has been demonstrated to be a serious problem in identifications? One cannot simply ask a witness if he/she is better at identifying people of their own race or if they are aware that studies show that such a bias exists.
2. Weapons focus:
The entire premise of weapons focus is that it is often a subconscious phenomenon—without realization of the occurrence, the witnesses’ eyes are drawn toward the weapon. It is precisely the extent to which the witness is unaware of the diverted attention that cross-examination proves ineffective.
This might be the only area where it is possible to do something on cross. As the example in the paper illustrates, the cross can elicit significant details about the weapon, thereby proving (or sowing seeds of doubt) that the witness was not focused on the face, but rather on the weapon.
However, the problem still remains that many jurors believe that a weapon increases attention overall and makes the eyewitness more reliable.
3. Stress: One can easily prove the fact of stress, but it is almost impossible to prove the impact or consequence of stress via cross. These are scientific results and ideas that cannot be elicited through the lay witness on the stand and often-times, the witness will use stress to affirm their recollection.
4. Memory Retention and the Confidence-Accuracy disconnect: This is another one that’s impossible to establish on cross. Asking a witness whether their memory has gotten worse over time and that just because they think they’re right doesn’t mean they’re right will result in them simply re-affirming their identification.
5. System variables (sequential lineup, double-blind, etc.): What can be established via cross is the occurrence of imperfect ID procedures, but not the significance, as with stress above. So the witness was not told that the suspect may or may not be in the lineup. What does it mean to the reliability of the ID? How are you going to get that out on the cross of anyone, including the cop?
So what is to be done? One method – the example used in the paper – is the one I prefer. To go over the events in a chronological order, breaking it down into tiny, tiny bits. One piece of information at a time.
Of particular importance is the technique of “time-framing”—the art of breaking the event or crime into a series of discrete acts, each in isolation.
I’d like to hear from you, my practitioner reader. What have you found useful? Has anything worked at all? I seriously doubt we’ll ever get the “aha!” moment during the cross of an eyewitness.
What I think this paper does is gives us a roadmap to arguing the admissibility of expert testimony. The offer of proof is one thing, but setting up why it is necessary goes a long way to informing the judge that he/she should admit the testimony. This paper lays out all the reasons why it is necessary to inform the jury of the pitfalls of eyewitness testimony. Use it. Even if you don’t get the expert testimony in, it gives you leverage to argue to the judge that you need to either ask jurors about it or be able to argue some of it in closing and have the judge give a detailed instruction on the fallibility of eyewitness testimony.
I’ve uploaded it here [pdf]. It’s available for free from SSRN, so I figured I could make it available here too. If that’s a problem, someone let me know and I’ll take it down.
(Courtroom sketch: Wired News/Norman Quebedeau)
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