Posts tagged evidence
Is videotaping interrogations a better solution?
Feb 24th
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
Freeze! Your memory, that is
Nov 15th
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).
¡Ay Dios Mio!
Nov 14th
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:
Lost evidence in the age of DNA
Nov 11th
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.
Sizzle turns to fizzle (Supreme Court ARO 11/9/07)
Nov 9th
When I got to work this morning and followed my daily routine of checking the judicial branch website to see if there were any opinions being issued today, I was excited. Giddy, even. (Get it? Giddy…)
The Supreme Court had decided to release opinions in three very, very interesting cases. As luck would have it, the opinions were extremely anti-climactic. Nothing in any of these opinions was of substantive value. *grumble* *grumble*
The first, State v. Khadijah, was the appeal from the reversal by the appellate court of the defendant’s conviction. The defendant was convicted of failure to appear, because, after returning from work at 8am, she had fallen asleep on the couch and her boyfriend had forgotten to wake her up in time. The appellate court found that the evidence was insufficient to sustain the conviction on the “willful” element of the charge. The Supreme Court dismissed the State’s appeal on the grounds that cert had been improvidently granted.
Next up, Porter v. Commissioner, was also dismissed on the grounds that cert had been improvidently granted. Porter appealed from the Appellate Court’s denial of his appeal. The appellate court had concluded that the habeas court did not abuse its discretion in denying certification to appeal. Mr. Porter claimed that his appellate counsel was ineffective for not raising the issue of instructional error (which issue was not reached on his direct appeal because it was not adequately briefed – as found by the same appellate court). Nope, no good.
Finally we come to Taylor v. Commissioner. The petitioner claimed that his plea was involuntary. The habeas court denied the petition and denied certification to appeal. On appeal, the appellate court remanded to the habeas court with an order to make findings on whether petitioner had proven cause and prejudice which excused his procedural default. The State appealed, saying that the appellate court improperly found that the habeas court had abused its discretion in denying certification. It was an interesting issue because the appellate court had ruled that if there is no evidence on the record of cause and prejudice, then it can find so, but if there is evidence of cause and prejudice and there is no finding, then it must remand for the habeas court to make that finding. Unfortunately, we got no guidance, because the Supreme Court agreed with the State that the appellate court incorrectly found that the habeas court had abused its discretion in denying certification to appeal. So boo.
The impossible defense
Nov 7th
One of the first things I learned (among several hundred others) in the criminal clinic at the law school was seeking a bill of particulars. The State files a short-form information, you ask for the long-form version. You make the State commit to its theory of the case and lay out, specifically, the exact nature of the charges. This seems only fair and serves to validate Due Process. The defendant must have notice of the charges against him and the statutes he is alleged to have violated (I’m not saying you do this in every case – you have to use your judgment, but that’s for another day).
Translated into real life, though, this almost never happens the way you want it to. Scott complains here of the government not wanting to provide particulars because it didn’t want to limit the basis for the charges. More than the moving target of the conduct, it is the moving target of time that I find to be impossible to defend against.
Consider the sexual assault case. The “victim” is sexually abused and a few months or even a year later reports it to the authorities. Or in child sex assault cases, several years later. The prosecutor files the information, alleging a violation of the child sex statutes. The particulars?
From 2002-2005, this defendant sexually assaulted this “victim”. Defend that. It’s impossible. The only way to win a case like that is to undermine the credibility of the “victim”. You cannot present an alibi defense, simply because you cannot provide an alibi for 3 straight years. Try it; it’s just not possible. If you say I was out of town on Monday, the State says it could have been Tuesday. Could have, would have, should have. Yet this is okay.
The state does not have to prove, and often does not even put on evidence of, when it is that this crime is said to have been committed. This allows them to paint with a very broad brush, increasing the pressure on a defendant to take a plea offer.
I don’t know what can be done about this other than to take a stand every time the state alleges something like this. Ask for a bill of particulars; argue that it’s impossible to defend against; that you don’t have notice. Because you don’t, really.
A primer on severance and uncharged misconduct
Nov 5th
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.’’
Snitching: Here we go again
Nov 2nd
Update: Scott clarifies (in the comments here and in this post) his definition of “rats”. He says he’s referring to defendant X who is guilty of crime 1, who, in exchange for a light prison sentence, tells the government about defendant Y who committed crime 2.
If only it were that simple. Sure that scenario arises, but how do you know that before you represent him? What about the scenario where defendant X and defendant Y might be guilty of crime 1. Defendant X wants to plead guilty because he’s got a long record, evidence is murky and there’s a chance that he might be convicted. At that point, he wants a lesser sentence, so he offers to testify against defendant Y. Is he a snitch? If so, why would you not represent him? By not representing him, are you not doing a disservice to the client that hired you?
Or is the dividing line that your client must be willing to testify against someone else committing only a different crime? I guess I still don’t understand (or perhaps I don’t believe that this the case).
Original post: The story that never dies: Snitching. Should you or shouldn’t you? That is the question that has been bandied about the “practical blawgosphere” for months now and has returned with a vengeance. This morning, after Norm’s latest post, Scott got all atwitter.
SO. Instead of rehashing everything said in the last day (and last few months), I’ll ask this of those that will not represent snitches: What do you mean by snitching? Is it purely co-operation with State in the prosecution of another? Does it include a third-party defense (as in testifying “I didn’t do it, my buddy did”) and what is the difference between the two?
I’ll give you my answer: There is none. Testifying on the stand that you didn’t commit a crime, but you know who did and that person is X, is akin to testifying at the trial of X that X committed the crime.
So you do non-snitchers draw that distinction? If not, why not?
Image from this site.
Crack is not pot, dammit (Appellate Court ARO 10/31/07).
Oct 31st
You’d think that this would be an easy one. However, 50% of the judges that looked at this case disagreed. Luckily one of those was the trial judge, so the 3-judge panel of the Appellate Court overturned the conviction.
In State v. Browne [pdf], the defendant argued that his conviction should be overturned because the search warrant was not valid. In the specificity portion of the warrant, the items sought were listed as “cocaine, crack cocaine”, but the cops seized marijuana and Browne was convicted of possession of marijuana.
The cop that prepared the warrant testified that the reason he entered cocaine instead of marijuana (which was the focus of the investigation all along) was that he cut and pasted from another warrant and left it in. Apparently, only the mouse was working on his computer.
The Court doesn’t buy this and says particularity means particularity:
This argument was addressed in the recent United States Supreme Court case of Groh v. Ramirez, 540 U.S. 551, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004). In Groh, the court held: “The fact that the application adequately described the ‘things to be seized’ does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents. See Massachusetts v. Sheppard, 468 U.S. 981, 988, n.5 [104 S. Ct. 3424, 82 L. Ed. 2d 737] (1984) (‘[A] warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional’)
Obviously, since this is a reversal of a conviction, there has to be a dissent [pdf].
There’s also a pretty summary disposal of a habeas appeal, some constancy claims from a child sex assault conviction that are handily dismissed and this last one that holds that evidence of unemployment is admissible as motive for robbery (and then the usual: even if it was prejudicial, it was harmless. I really hate harmless error. Hate.)
Image license info here.
History must teach us something
Oct 31st
Stan Simpson has this fine piece in the Courant today, urging legislators to learn from the State’s past and resist the urge to simply expand prisons as a solution to reforming the criminal justice system.
The last time the state went on a massive prison expansion escapade, it spent $1 billion to build 12 new prisons – the last in 1996. The overcrowding problem got worse, not better. Inmates were sent to out-of-state facilities.
Prison expansion was costly and largely ineffective. The state Department of Correction’s budget ballooned, from $92.4 million in 1985, with 5,379 inmates, to $605 million this year. In recent years, Connecticut got smarter and embraced prison-diversion alternatives for nonviolent offenders.
This recent enlightenment is what led to Connecticut being reported favorably in a private report released by the Pew Charitable Trusts back in February. Connecticut was one of two states, the other being Delaware, that was projected to have no increase in its prison population. That, obviously, no longer holds true. The policies that the State put in place and followed, however, are still valid.
“When an event as tragic as the Petits’ occurs, obviously, the first response is to identify why it happened and to do everything to prevent it from happening again,” said Ryan King, policy analyst for The Sentencing Project, a Washington, D.C.-based prison reform advocacy organization. “Unfortunately, that response has traditionally been longer sentences of some kind, restricting parole release, those sorts of things. And the fact of the matter is there’s been very little empirical evidence that any of them have had the advertised effect.”
“The conversation that can’t be lost in this dynamic is that at the end of the day, creating and maintaining comprehensive re-entry services for individuals is a better way of increasing safer communities,” said Maureen Price-Boreland, a member of the governor’s task force and executive director of Community Partners in Action, which runs re-entry programs for former offenders.
Stan suggests that legislators should not overreact, but instead invest in job training, drug counseling and housing assistance programs, reserving prison beds for the “true incorrigibles”.
Now, will legislators listen?
Meanwhile, there was a community meeting in Hartford last night, where ex-offenders and their families confronted Gov. Rell Commissioner Lantz about the negative effects of the parole ban.
The Clean Slate Committee also made demands of Lantz. They asked her to guarantee that by Nov. 30, every inmate released from incarceration would be given a state-issued identification document and that the state review of all parolees and inmates eligible for community release programs would be completed by Nov. 21. They also asked that the governor establish a commission – to include former inmates, their families, advocates, public officials and two members of Clean Slate – that would work on parole and community re-entry.
Lantz agreed to establish such a commission, but said she could not meet the deadlines on the other two demands.
Skakel petition denied; should he have gone straight to habeas?
Oct 25th
Judge Karazin today issued his Memorandum of Decision [pdf] denying Michael Skakel’s petition for new trial, holding that most of what Skakel based his claims on was not newly discovered evidence.
Skakel sought a new trial based on Gitano “Tony” Bryant’s claim that his two friends told him they got Moxley “caveman style.” Bryant and Skakel attended the same private school.
Karazin wrote in his ruling that Bryant’s statements were admissible, but not credible.
“The corroboration for Bryant’s claim is minimal,” he wrote. “No one has any recall of ever seeing Bryant and his companions in Belle Haven on the night of the murder.”
“The testimony of Bryant is absent any corroboration,” Karazin wrote. “It lacks credibility, and therefore would not produce a different result in a new trial.”
He also claimed that there were three newly discovered witnesses that undermined and directly contradicted the testimony of the state’s “star” witness: Gregory Coleman. Coleman had testified that Skakel confessed to him when they were in private school together. These three witnesses would have testified that Skakel did not confess.
Judge Karazin ruled, however, that these three witnesses could have been discovered prior to trial with due diligence. There’s more:
Karazin said [trial attorney Michael "Mickey"] Sherman did not ask for a ruling during the trial about [state inspector] Garr’s book deal, calling the move “either a lack of due diligence or a strategic decision.”
Skakel’s attorneys also said the state failed to hand over reports on other suspects and a sketch that they said resembled an early suspect.
But Karazin noted that the state Supreme Court found that Skakel’s defense was aware of the reports and the sketch during the trial, but failed to make a timely request for them.
So this brings me to my second thought. Judge Karazin’s description of several of the claims raised by Skakel made some habeas petitions I’ve seen seem meritorious. An appeal, probably forthcoming, seems unlikely to result in a reversal of Judge Karazin’s ruling.
On the other hand, there seems to be plenty of evidence that Mickey Sherman was pretty ineffective in representing Skakel. So why not go straight to the habeas corpus court one might wonder.
I think it might have something to do with getting yet another court to document the shortcomings of Mickey Sherman’s representation of Skakel. Clearly, it is a topic of discussion in news reports.
This strategy (if indeed it is a strategy) carries some pitfalls, though. Like yesterday’s opinion from the Appellate Court and a few lines from Judge Karazin’s decision, there is always the (great) likelihood that such a court would include throwaway statements that effectively preclude habeas relief. The appellate courts are only too happy to do that: “Cumulative”; “wouldn’t have made a difference”; “evidence was extremely strong”; “harmless error” are some examples.
Judge Karazin uses a few: “admissible but not credible”and “lack of due diligence or tactical decision”.
All in all, I think Skakel might have been better served by filing a petition for Writ of Habeas Corpus instead of the petition for new trial, but I’m just me and that’s why they pay Santos & Seeley the big bucks.
Timing is everything
Oct 25th
Woman in Black writes of one of her least favorite conversations to have with clients:
the “I know you say you did not do it, I believe you, the evidence against you is not overwhelming, but you really cannot trust a jury to free you and maybe you need to think about taking this deal instead of risking the rest of your life” conversation.
She gives several reasons for not liking this conversation and first on the list is client distrust. If you tell the client that they have a decent case, then why are you telling them to plead guilty.
That’s why timing is everything. You need to have this conversation at the appropriate moment and precede it with several other conversations: the “this is the burden on proof” conversation, the “these are the elements of the charge” conversation, the “this is the evidence the state has” conversation and the “this is what you’re facing after trial” conversation.
You need to establish a relationship with the client before you have the “I think this deal might be best for you” talk. Don’t be like those lawyers that talk to clients on the phone for the first time with an accept or reject deal on the table. The client will not trust you. Then don’t act surprised when the client calls you a public pretender or says that you work for the State.
You also don’t want to go overboard and say that there’s no way the client can get convicted and then a month later counsel them on taking a plea deal. It doesn’t work that way.
You need to explain to the client the pros and cons of taking a plea deal (remember, it is their decision) and the best way to get the client to understand what is in their best interests is if the client trusts you. It takes time to build trust, especially for clients that have been in and out of the system.
So some simple rules: Be honest with the client, don’t overstate anything, never promise anything, create a relationship, visit the client and take some time explaining the case to the client. If you do that, more often than not, the client will trust you and trust your recommendation.
Appellate Court ARO 10/24/07
Oct 24th
The Appellate Court released two criminal opinions (yes, they are criminal!) today. In State v. Mourning [pdf], they upheld the defendant’s convictions for conspiracy to commit murder, manslaughter and possession of a firearm.
Two interesting issues raised on appeal were that 1) there was insufficient evidence to prove the conspiracy and 2) the jury’s verdicts on manslaughter and conspiracy to commit murder were legally inconsistent. The court quickly dismissed the insufficiency claim, holding that there was plenty for the jury to conclude as it did. On the inconsistency argument, the appellate court conceded that the specific intent required for each was different. However, it then pointed to appellate precedent to claim that it didn’t mean they were mutually exclusive. The defendant claimed that where, as in this case, the “act” was a single gunshot, you cannot have two separate intents. With the same gunshot, you cannot intend to kill the victim and seriously injure him.
No dice, says the appellate court, seemingly saying that one is a lesser of the other. I think they’re plain wrong.
There is also an interesting confrontation issue, involving an inmate who claimed he had seen the shooting. The inmate provided a statement, but prior to testifying, invoked his fifth-amendment privilege. The appellate court held that the claim was unpreserved because defense counsel did not pursue the offer of proof. Habeas alert!
Oh wait, no. The court seems to kill any habeas claim by stating that it’s possible that this inmate’s testimony was cumulative, which is why his statement was not admitted by the trial court.
I hate when they do that.
On to the next: State v. Moreno-Cuevas. Here, the defendant- who appeared pro-se – raised some vague claim of constitutional error in addition to prosecutorial and judicial misconduct impropriety. He was convicted of trespass because he chose to remain on campus at his university well past the 10pm limit that was imposed. The Court says there isn’t an “inkling” of a Constitutional claim here. Goodbye.
By the way, if you’re a PD in Connecticut, after you read this, you better go to New Case News and read a fuller synopsis.
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Warrants released
Oct 24th
For those of you interested, the search warrants in the Cheshire case have been made public. The Bristol Press (of all things) has made them available on their website here.
There’s really nothing remarkable in any of them (and certainly not anything new), except for one bit that I found a little laughable.
The police sought permission to examine Komisarjevsky’s family laptop because it is their experience that
the world wide web contains web sites that include information that provide detailed directions on how to restrain people, how to conceal, destruct and alter evidence as well as detailed accounts of criminal activities such as burglary, kidnapping, robbery and arson.
It certainly is curious that they didn’t include murder or even felony murder.
The impatient jury
Oct 17th
Juries are mercurial, we know. Juries are like a black box, we are told. Juries usually convict on Fridays, is another belief. But juries are also comprised of people and people are impatient. People, who are on juries, have plans with their lives and jury duty presents a significant obstruction. Just take a look at this google search for “jury pressure”.
Earlier today, I was leafing through a transcript of a trial in which evidence had lasted for almost twice as long as was originally promised the jurors. Jurors had been told, during selection, that evidence would last for a few days and they would have the case “in a week, or slightly later at the most”. Now it was going on 2 and a half weeks. Jurors had plans.
They sent notes. On Thursday, right before closing arguments: “We’re worried because if our deliberation goes into next week, a lot of us are going to have problems.” and “We want to know how long this will take because we didn’t expect it to take this long and some of us have commitments.”
The judge in this particular case didn’t seem to think there was much of a problem and told them: “It will take as long as it will take. You were selected to see this through to the end. Please adjust. Thank you.”
The judge did admonish the jury that their scheduling conflicts were not to influence their decision. But is that possible? Will juror #4, who has a vacation to Bora-Bora planned for Wednesday, willingly deliberate for days and reach a legal verdict? Will juror #1, whose wife has to go back to work on Monday and has no one to watch his kids, be a thoughtful and active participant in the process?
What of the defendant? Will the defendant get a fair trial? Will the process be wholesome? Will he get shortchanged?
What can one do? Ask for a mistrial? How would you handle this situation?
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