Concurring Opinions » Evidence Law

The Use of DNA Evidence in Criminal Cases

Gerard Magliocca — Mon, 19 Oct 2009 12:14:18 +0000

I wanted to flag a terrific new paper on SSRN that will be coming out in NYU Law Review next year. It’s by Andrea Roth (currently a fellow at Stanford Law School) and entitled “Safety in Numbers? When DNA Alone is Enough to Convict.” The Abstract follows the jump:

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government’s case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is nearly entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they raise about the proper role of probabilistic evidence, and courts’ routine misapprehension of match statistics, no framework currently exists – including a workable standard of proof – for determining sufficiency of the evidence in such a case. This article is the first to interrogate the relationship between “reasonable doubt” and statistical certainty in the context of cold hit DNA matches. Examining the concepts of “actual belief” and “moral certainty” underlying the “reasonable doubt” test, I argue that astronomically high source probabilities, while fallible, are capable of meeting the standard for conviction. Nevertheless, the starkly numerical nature of “pure cold hit” evidence raises unique issues that require courts to apply a quantified threshold for sufficiency purposes. While any threshold will be arbitrary, I argue – citing recent juror studies and the need for uniformity and systemic legitimacy – that the threshold should be no less favorable to the defendant than a 1 in 1000 chance that the defendant is not the source of the evidence.

Teaching Sexual Violence

Jaya Ramji-Nogales — Fri, 04 Sep 2009 19:06:03 +0000

I’m into week two of Evidence, which is one of my favorite classes to teach — full of vivid examples and fun hypotheticals, which make it relatively easy to keep students engaged. Each year, however, I hit the tricky problem of how to deal with the sections of the course that cover crimes of sexual violence while maintaining the pedagogical goals of maximizing participation in class discussion and encouraging thorough and comprehensive study habits. There are two main parts to this question — how to approach cold-call questioning in this area of the course and how to test these issues. I’m sure others who teach evidence, criminal law, international criminal law, and similar courses have faced these problems, and I’m eager to hear how you’ve addressed them.

My approach to the first is to explicitly note my sensitivity to the difficulty of teaching and discussing these issues and to ensure that the entire class is aware of the need to proceed sensitively on related topics. So, on the first day of class, I note that one in six women and one in thirty-three men have been victims of sexual assault, and that it’s therefore likely that someone in the class is a survivor of sexual violence and nearly certain that someone in the class is a close friend or relative of a survivor of sexual violence. I leave it at that, and hope that students who find it impossible to speak in class on these issues will seek me out in office hours. That has happened before, but would it happen more frequently if I explicitly stated that students may be excused from class discussion of evidentiary issues relating to crimes of sexual violence? If larger numbers of students seek to opt out of this discussion, should I institute limits on who can opt out (is it even possible to do so — e.g. only those who have suffered sexual violence can opt out) or simply allow a self-selection process? Or should I just let go of the broad class participation goal in these sections of the class, knowing that there will be enough students who feel comfortable speaking on these issues to enable me to get through the material?

My approach to the second is, so far, to test law relating to sexual violence through exam questions that don’t actually discuss sexual violence. So, in my evidence exam last year, I tested the Rape Shield Law through a hypothetical defamation suit relating to alleged promiscuity — of course, those of you who teach evidence know that the rule doesn’t apply in such cases, but the question determines whether students have paid attention to that important distinction. Not entirely satisfying and not a solution that’s likely to work forever — as a colleague reminds me, with old exams on file, at some point students are going to determine that I never test in that area and will simply stop studying evidence rules that relate to crimes of sexual violence. On the other hand, every time I think about testing these issues any other way, I am reminded of stories I’ve heard from more than one student of seeing a question that focused on rape in a criminal law exam and simply freezing up, unable to respond — one even had flashbacks to her experience of sexual violence. There are no easy solutions here, but I’d love to hear how others manage to balance sensitivity with pedagogical goals.

Reining In Executive Power: Proposed State Secrets Legislation

Danielle Citron — Tue, 17 Feb 2009 00:14:56 +0000

Over the past 56 years, the Executive Branch has enjoyed a seemingly unchecked right to shut down litigation in the name of “state secrets.” The landmark 1953 case that gave vitality to the “state secrets” privilege was United States v. Reynolds. In that case, three widows sued the government after their husbands died in the crash of a U.S. Air Force aircraft that they had help engineer. During discovery, the government refused to produce the Air Force accident report and statements of crew survivors to plaintiffs or even the judge for in camera inspection. The trial court and the Third Circuit found that the government could not unilaterally decide what it could withhold as permitting it to do so would eliminate the independent judiciary’s important check on government. The Supreme Court in Reynolds disagreed, finding that the government had the right to withhold evidence from private parties when disclosure, according to the government, would endanger national security. In the wake of Reynolds, judges tend to dismiss private lawsuits as soon as the government asserts the “state secrets” privilege. The Bush Administration frequently invoked the “state secrets” privilege, most notably in cases challenging the constitutionality of its national security programs including the warrantless wiretapping, rendition, and interrogation programs.

Yet, as two recent books (both elegantly written and carefully developed, see here and here) demonstrate, Reynolds stands on troubling ground: the Air Force report (released in 1996) contained no secrets but did attest to the Air Force’s negligent conduct. This ignominious history illustrates the great danger of giving the Executive Branch unchecked power to invoke the state secrets privilege: it can be, and has been, used for the sole purpose of concealing government misconduct or carelessness.

Responding to this concern, Senate Judiciary Committee members last week unveiled the State Secrets Protection Act, a bill that would help check the misuse of the “state secrets” privilege. As Chairman Patrick Leahy explained, the bill endeavors to “guide courts to balance the government’s interest in secrecy with accountability and the rights of citizens to seek judicial redress.” The bill would provide a uniform set of procedures for federal courts considering claims of the state secrets privilege, such as in camera hearings and special masters. It would require judges to look at the evidence that the government claims is privileged, rather than relying solely on government affidavits as courts have increasingly been wont to do. The Committee report explains that the bill addresses the crisis of legitimacy surrounding the privilege by setting forth clear rules that take into account national security and the Constitution. Although the privilege had an ignominious beginning, this bill would work to secure for it a more reputable life.

Of International Crimes and Memory Sticks

Jaya Ramji-Nogales — Fri, 03 Oct 2008 14:00:32 +0000

Perhaps my favorite news story of late (apart from the Somali pirates and their spokesperson) is the Colombian government’s seizure of a memory stick belonging to the rebel group FARC, containing the names, identities, aliases, and even some photos of over 9,000 guerrillas. One can almost imagine the guerrilla-in-chief stomping around muttering to himself, “I KNOW I had that memory stick around here somewhere.” And you felt bad about that memory stick you lost! In all seriousness, the FARC is notorious for its human rights abuses, and its entry into the digital age may benefit not only the group itself.

While genocidaires and other perpetrators of grave crimes often keep painstaking records of their crimes, it has been in the past an enormous task to track down, authenticate, and preserve this documentary record. In just one example, the Documentation Center of Cambodia (DC-Cam) has worked for over a decade to collect and store documentary evidence of the crimes of the Khmer Rouge, whose surviving leaders are soon to be tried before the Extraordinary Chambers in the Courts of Cambodia (ECCC). I flew all the way to Cambodia last summer to meet with ECCC officials on behalf of the DC-Cam to discuss document transfer, storage, and preservation protocols. Imagine if we could have just handed over a memory stick full of information to the court! What if Pol Pot had a laptop we could get our hands on? The possibilities are endless in the digital age; the ease with which we can now transfer information may be helpful not only for perpetrators but also for prosecutors of international crimes.

Of course, the Evidence professor in me is skeptical about the admissibility of such data without proper authentication. While the authentication of computerized data is very much a live question before American courts, the evidentiary rules applied in international criminal tribunals are generally derived from civil law jurisdictions and therefore allow broad admissibility under the assumption that the judge can determine whether the evidence is reliable and weigh it accordingly. While this approach may be sensible in its inclusiveness, judges should trace the chain of custody carefully and rely on techie experts to ensure that nobody has tampered with computerized data. Particularly in the complex political situations that give rise to international crimes, it would be all too tempting for political foes to create a memory stick full of false information . . .

Cross-posted at IntLawGrrls

Fear Not the Inadvertent Waiver

Jaya Ramji-Nogales — Tue, 30 Sep 2008 22:44:11 +0000

For those junior law firm serfs toiling away in the dungeons of document discovery drudgery, some good news is coming your way. Apart from thanking your lucky stars that you chose to be a lawyer rather than an investment banker, you can be happy about the recent promulgation of Federal Rule of Evidence 502. This new rule ensures that the unintentional disclosure of a privileged document does not result in automatic waiver of the attorney-client and work product privileges on all documents concerning the same subject matter. Rather than the current standard that allows for no human error, under the new rule, as long as you take “reasonable steps” to prevent disclosure and to rectify the error once discovered, the privilege will not be waived on related documents. Moreover, the rule applies not only to proceedings in federal court, but also to disclosures made to a “federal office or agency” — thus encouraging corporations to comply with federal investigations without needing to worry about broad waiver of privileges.

FRE 502 was drafted “to address a growing problem that is adding inordinate and unnecessary burden, expense, uncertainty, and inefficiency to litigation.” In other words, law firms had been billing many many hours of junior associate time towards “exhaustive, time-consuming, and expensive examination of documents item by item, often page by page, before they [could] be comfortable turning them over in discovery.” Sound familiar? In order to prevent discovery costs “grossly disproportionate” to the “stakes of the underlying litigation,” the plaintiffs bar and the defense bar joined forces in support of this new rule. Particularly in the age of voluminous electronic discovery, this should return at least a few hours of life to the document serfs, although firms may be loathe to relinquish their discovery cash cows so quickly. In any case, the rule seems to be well conceived and drafted, unlike many that have come before, but it remains to be seen whether it will be subject to abuse in practice by lawyers seeking to strategically disclose information beneficial to their client while protecting less helpful information under the privilege.

Cross-Examining Film

Jessica Silbey — Mon, 02 Jun 2008 17:57:14 +0000

Thanks for having me here at Concurring Opinions. I haven’t blogged for some time – reminding myself there is life outside of the Web – but for the next month I am excited to reengage my blogging-self and hopefully some readers of this blog.

One of my summer projects is to think about how to turn some of my more theoretical writing on law and film into a practical “how to” piece on lawyering in the courtroom with filmic evidence. To that end, I have been watching lots of police films (a subset of what I have called “evidence verite”). These films can be found without much effort on YouTube or VideoSpider. Anyone else out there know of good sites storing this kind of film footage, I would love to hear about it. I found one piece of footage that is the subject of a recent court case – Jones v. City of Cincinnati, 521 F.3d 555 (6th Cir. 2008) – which can be found here. This film, of the police using a tremendous amount of force to subdue Nathanial Jones (who subsequently died), is an excellent example of how the film frame (what is seen and what is not seen due to the limits of the camera’s size and angle) can affect the viewer’s response to the images. When watching this film, we must imagine the blows delivered and the pain received because both are off-camera. How we imagine them might depend on our experience with police brutality more generally. (We do hear the police and the criminal suspect protesting loudly.) Do we imagine Hollywood violence (which way does that cut for the defendant here)? Do we have any experience seeing this kind of violence first or second hand so that it is hard to imagine anything but the worst? The boundaries of imagination are hard to predict and therefore a formidable opponent in a court of law. Imagination is obviously not evidence in a court of law, although it likely wields mighty influence nonetheless. A former student suggested to me that not seeing the blows Nathanial Jones suffered makes us more callous to the pain he received. I tend to think that is the case.

The Sixth Circuit in Jones v. City of Cincinnati affirmed the district court’s refusal to dismiss the case on defendant’s 12(b)(6) motion and said this in relation to the film: “Where the evidence ‘captures only part of the incident and would provide a distorted view of the events at issue,’ as the district court concluded with respect to the videotape, we do not require a court to consider that evidence on a 12(b)(6) motion.” Id. at 561. To this, I would say “no kidding,” but we will have to wait and see what the trial court does on a Rule 56 motion. Given the Supreme Court’s decision in Scott v. Harris, I remain skeptical that a court can resist the myth of film’s obviousness and objectivity.

For those who need a refresher, Scott v. Harris was the 2007 Supreme Court case concerning a high speed police chase that resulted in the police ramming the suspect’s car causing him to become a quadriplegic. A police camera on the cruiser recorded the chase from the point of view of the police car, and the Supreme Court said that the trial court should have considered the facts in that case “in the light depicted by the videotape” despite contradictory testimony. For an excellent analysis of the flaws of that case, see Howard Wasserman’s short piece here . For an even shorter analysis, see my Op-Ed here . For a longer more empirical analysis of the video in the case, see Kahan et al. here.

How do courts and lawyers deal with filmic evidence in light of film’s inevitably partial nature? That is what my new piece is working through with some practical tips on cross-examining film in a courtroom. The piece should be up on-line soon. For those who want a preview, feel free to email me.