The Criminal Lawyer

This is amazing. Sequencing an entire human genome is now going to be cheap and fast. We predict this will be a game-changing technology for the use of DNA technology.

Right now, DNA evidence is looked at much like fingerprint evidence. With fingerprints, law enforcement doesn’t compare every single ridge and whorl to see if there’s an exact match. Instead, particular locations are compared, to see if those locations are the same. And there’s a lot of subjective interpretation that is needed to make that call. DNA evidence is no different. The entire DNA sequence is not compared. Instead, a handful of locations are compared, to see if the DNA at those locations is the same. And there’s a lot of subjective interpretation that is then needed to make that judgment call. This can call DNA evidence into question, particularly when there are mixtures, degraded samples or equipment glitches that create room for errors of judgment.

If one were to compare the entire genome, however — all 3.3 billion base pairs of it — there would be much less room for interpretation and error.

The problem is that sequencing an entire genome has, to date, been prohibitively expensive. The first genome was a massive undertaking. As of 2009, only 7 people’s genomes had ever been sequenced. The time and expense needed to compare the genomes from a bit of evidence and from a single suspect would take forever and cost a huge amount of money. It’s just not practical.

But if the new technology announced in this WSJ video is for real, all that could change very soon.

If the technology is available to analyze and compare all 3.3 billion base pairs rapidly and cheaply, the current system of comparing 9 or 10 or 13 loci will be woefully inadequate. The current system relies on interpretations that can be incorrect, and statistics that can very easily be misinterpreted. A full-genome comparison knocks out most of the interpretation and guesswork, and eliminates the need for statistics.

Statistics won’t be necessary any more, because (with the exception of identical twins) no two people share the same genome. So leaving aside identical twins, the odds of someone else sharing your genome are nil.

Statistics are only used now because we only look at a few loci, not the whole genome, and all kinds of people share the same alleles at each of the various loci. Presuming the independence of the stats at each locus, the odds of a match at each locus get multiplied to reach truly astronomical odds against there being a random match. (Remember, though, that the stats don’t say anything about the odds against this being the match. And also remember that a test with even a 99.9% success rate will have false positives 0.1% of the time — and given the low odds of a correct positive match in the first place, the chances of a false positive actually occurring are amazingly high, in the realm of a coin toss.)

This can be a boon to innocents who otherwise might be wrongly charged based on bad DNA interpretations. It can also give society at large greater confidence that people convicted based on a full-genome match are rightly convicted.

Sure, we defense attorneys would lose some arguments for reasonable doubt in the wiggle room of current DNA analysis. But we’d gain arguments against those who would continue to use the present-day analysis when there is a more exact method available.

It hasn’t happened yet. But it’s coming soon. We can’t wait to see how this shakes out.

A couple of weeks ago, we taught another CLE course for the good folks at West Legal Ed Center, in our “Hope for Hopeless Cases” series. This one was on ways to defend cases where the government is going to use DNA evidence to prove your client’s guilt. (Here’s a link.)

DNA evidence can be just devastating. The science is good, after all. And to a lot of potential jurors (and judges and lawyers, unfortunately), “science” is another word for “magic.” Which is another word for “I don’t have to understand how it works, all I know is that it must be so.”

This can often be a wonderful thing, when the science is used correctly, and for the limited purposes to which it is suited. When used correctly, DNA evidence can free the innocent, and help ensure that we really are only punishing the guilty.

The problem is, DNA evidence is all too often used wrong.

And when that happens, the wrong people can get convicted.

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And now today we read a good article in the latest Washington Monthly called “DNA’s Dirty Little Secret: A forensic tool renowned for exonerating the innocent may actually be putting them in prison.” (Link here.)

It’s a good article, about the case of John Puckett, who was convicted in 2008 of an old murder from 1972. It was a brutal rape and murder, with about 20 suspects at the beginning, but the case went cold. Then in 2003 the police tested the DNA found in the evidence. It was old DNA and degraded, and it was also a mixture of multiple people’s DNA. The results were compared to California’s DNA database, and there was a possible match with Mr. Puckett. He hadn’t been a suspect in 1972, but based on this apparent match — and on nothing else — he was prosecuted and ultimately convicted. Jurors have since said that they convicted because of the statistical odds quoted to them at trial, and that if they had known the stats of false positives — which were one in three — they never would have trusted the government’s stats like that.

The article highlights the fact that DNA evidence may be based on good science, but by the time it gets to a jury it can be seriously flawed. Contrary to popular belief, DNA evidence is not objective. It involves a huge amount of subjective interpretation and judgment calls. And whenever human beings have to interpret data and make judgment calls, there is a lot of room for reasonable doubt.

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Contamination, of course, can be a huge issue. Cops screw up when they collect biological evidence, when they stick it in evidence bags, and when they ship it off to the lab. There’s all kinds of opportunities in the real world for a suspect’s DNA to get mixed up with the evidence sample. We’ve worked on at least two cases in the last six months where that is exactly what seems to have happened.

But leaving aside contamination, there are all kinds of ways that experts can look at DNA evidence results and draw the wrong conclusion.

There are technical errors in the lab, for one thing. Sometimes they analyze the wrong evidence. Sometimes the machines doing the analysis aren’t working properly. Sometimes the lab doesn’t test control samples and negative controls, to see if the machines are working right, and whether they’re giving false positives. They almost never do double-blind analysis. Often, analysts will manually adjust the data results, adding or deleting data (!) when it doesn’t look right to them.

There are analytical errors all the time, too. They’re comparing two results — the evidence itself, and the exemplar of the suspect. They never match perfectly, not ever. So errors arise when comparing the two samples. Or judgment calls must be made that give rise to reasonable disagreement (a/k/a “reasonable doubt”) — especially when the evidence is a mixture of more than one person’s DNA. Two people can make four peaks at each locus, and there are 6 different ways to interpret those four peaks. Three people in the mix jump that up to 15 different interpretations. At each locus. That’s a lot of room for judgment and doubt.

There’s another thing called the “observer effect,” which is rampant in labs serving law enforcement. The analysts are often told by the police exactly what they think the evidence will show, or why they need to prove your client did it. And the test are never double-blind, so the analyst’s pre-existing ideas will become the filter through with the evidence is interpreted. Even the plainest evidence that doesn’t match the preconceived notion, it just gets explained away. Happens all the time. It’s a normal human behavior. That’s why double-blind testing exists in the first place.

Lots of things can be mistaken for other things. Machine errors can be read as actual data, and can hide other data. And often enough the test isn’t run a second time to see what the result would have been without that particular error. Same goes for degraded DNA samples and PCR errors.

Beyond analytical concerns, of which there are far more than we’ve mentioned here, there can be significant problems with the way the statistics are handled. The underlying stats, just like the underlying science, are perfectly valid. The problems come up when the stats are used incorrectly, to imply something that they really don’t mean. The Puckett case involves the false-positive fallacy — the odds of a false positive can be very very high, even in a test that has an unbelievable success rate. There’s also the birthday paradox, whereby the odds of two people matching each other — even against astronomical odds — approaches a coin toss in large real-world populations. And don’t forget the “prosecutor’s fallacy,” named for the unfortunate tendency to refer to the statistics as the odds that the defendant isn’t the right person. A good defense attorney can often show to the jury that the numbers don’t necessarily mean what the prosecutor says they mean.

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DNA evidence, at best, can only tell you whose DNA you’re probably looking at. It cannot tell you how it got there, what happened, or who did it. And just because the DNA may even probably be your client’s, that doesn’t mean he necessarily did the crime. Just like with a fingerprint, there needs to be more, a lot more, to tie him to the commission of the actual crime. People forget this. And all the DNA witnesses can do is evaluate their data; they cannot evaluate the case itself.

So good lawyers shouldn’t let the DNA evidence become the case. It’s just a tool, like a fingerprint. Nothing more. It’s not magic, it’s not infallible. There’s plenty of room for error.

This can be room for reasonable doubt, but it can also be room for convicting the innocent. Hopefully, the more lawyers and judges learn about the downside of DNA evidence, the fewer wrongful convictions we’ll see.

But we’re not holding our breath in the meantime.

“Why is this case here, except as an opportunity to upset Melendez-Diaz?”

So wondered Justice Scalia during oral argument a couple weeks back in the case of Briscoe v. Virginia. For some background, see our previous post on this case here. Briefly, the Supreme Court held last year in Melendez-Diaz v. Massachusetts that, in a drug case, the prosecution cannot prove the existence of a controlled substance by merely introducing the lab report — the chemist has to testify, or else the Confrontation Clause is violated. There was a huge outcry from prosecutors’ offices across the country. It would be too much of a burden to get chemists to testify at every drug trial. There was a concerted effort to get around this new ruling, or better yet to get the Supremes to reverse themselves.

So in Briscoe, Virginia tried to get around the rule by saying the prosecution only needs to introduce a lab report, and if the defense wants to confront the chemist then the defense can subpoena the chemist as a witness.

More than half the state attorneys-general filed an amicus brief, arguing that the expense and administrative burden of getting chemists to testify at trial would just be unworkable. At oral argument on January 11, it sounded like Justice Alito, at least, was buying into that argument (Tr. at 16, lines 16 to 18). And there was hope that Justice Sotomayor would be that one extra vote to undo Melendez-Diaz.

In our previous post, we pointed out various reasons why such hopes weren’t based in reality, and why the claims of expense and burden don’t hold water. We seriously doubt that anyone at the Supreme Court bothers to read this blog. But these observations are fairly self-evident, we think.

So it was no surprise to see a one-sentence smackdown from the Supreme Court this morning:

We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009).

It is so ordered.

In other words, if the states do not put the chemist on the stand in the People’s case, then they violate the Confrontation Clause. End of story. Bureaucratic convenience does not trump individual rights.

As for all those prosecutors’ offices who whine that it can’t be done? We’d ask them to look at New York City, whose courts are far busier than theirs ever will be, and who nevertheless manage the job as a matter of routine. Defense counsel often stipulates to the substance being what it is, and when there is no stipulation then getting the chemist to court is no more challenging than any other police employee who’d rather not be there. It’s just part of the job, and amazingly enough it works out just fine.

On June 25 last year, the Supreme Court held in Melendez-Diaz v. Massachusetts that in a drug case the prosecution can’t simply use a sworn lab report to prove the existence of a controlled substance. If the chemist doesn’t testify, it violates the Confrontation Clause. (See our previous post about it here.)

Four days later, on June 29, the Court granted cert. in Briscoe v. Virginia, to decide whether the states can get around this requirement if they permit the defendant to call the lab analyst as a defense witness. Oral arguments are scheduled for next Monday, and we can’t wait to hear how the Commonwealth of Virginia tries to make its case.

It seems to us that there is an obvious burden-shifting problem here. The state, and only the state, has the burden of proving every element of the crime. Since the Winship case in 1970, this has been a due process requirement of the Constitution. Unless he asserts an affirmative defense, the defendant has no burden to prove a thing.

So the prosecution has to prove an element. It needs a forensic test to prove it. It needs the testimony of the analyst to introduce the results of that test. The defense does not have a burden to prove anything, one way or the other, about the test.

But Virginia wants to be able to prove its case using only the lab report, and get around the Confrontation Clause by saying the defense is allowed to call the analyst if they want to confront him.

First, who cares whether the state allows the defense to call the analyst or not? Last time we checked, the defense could call any witness they chose, by subpoena if need be. The defense always has the opportunity to put the analyst on the stand as a defense witness. This “permission” doesn’t actually give the defense permission to do anything it couldn’t already do. All it does is imply wrongly that the defense couldn’t have done so otherwise.

Second, the state cannot impose a burden of proof on the defense like this. Virginia’s scheme essentially precludes the defense from challenging the state’s evidence during the state’s case. It forces the defense to act affirmatively and put on a defense case in order to challenge the state’s evidence. That’s a big due process violation.

Third, the state does not get around the Confrontation Clause by shifting the burden to the defendant to call those witnesses it wishes to confront. In a murder case, it would absurd to let the prosecution introduce an eyewitness’s written account of what happened, and no more, so long as the defendant himself could have called the eyewitness if he wanted to. That’s indistinguishable from what Virginia wants to do.

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Lots of prosecutors’ offices are hoping that the Supremes will side with Virginia on this one. Particularly in the more amateurish offices, there is a feeling that the Melendez-Diaz decision imposes too great a cost on the criminal justice system, and imposes unworkable inefficiencies, by requiring chemists to take time off from their busy jobs to testify at trial. An amicus brief filed by half the nation’s attorneys general makes these arguments.

But just look here at New York City, the busiest criminal courts and crime lab in the world. Lab reports are used in the grand jury, where there is no confrontation right, but the chemists themselves must testify at trial. Somehow, this requirement has not bankrupted the city. Getting the chemist to show up is just one more minor hassle that prosecutors have to deal with, no more challenging than getting cops to show up. The requirement is so minor that nobody really thinks about it.

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Still, Melendez-Diaz was a 5-4 decision. And one of the five, Justice Souter, has been replaced by former prosecutor Justice Sotomayor. So people are thinking that she’s going to be more pro-prosecution here, and help the Court either reverse or severely limit that decision.

We don’t think so. We’d remind Court observers that Sotomayor came out of the Manhattan DA’s office, not one of the “amateur hour” offices. Her own personal experience is that requiring the chemist to testify at trial is really no big deal.

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So we’re looking forward to the oral arguments next week. If Scalia gives as good as he did in last June’s decision, and if we’re right about Sotomayor, then Virginia’s in for a spirited beatdown.

The “Prosecutor’s Fallacy” is one example of why we think Statistics should be a required course in college. Let’s say the police have the DNA of a rapist. Only 1 in 3,000,000 people chosen at random will match that DNA sample. Your DNA matches. At your trial, the DNA expert testifies that you have only a 1 in 3,000,000 chance of being innocent. That is not correct, however. That’s an example of the Prosecutor’s Fallacy.

Yes, there is a very small chance that someone’s DNA would match if they were innocent. But that is not the same as saying there’s a very small chance that someone is innocent if their DNA matches.

This is basic conditional probability. And if you think about it, it’s just common sense. What you’re doing is switching the conditions around, and leaving the result unchanged. You can’t expect to change the conditions and not change the result.

To illustrate with an extreme example, we drew the picture you see above. A black circle indicates a DNA match. All guilty people are going to have a DNA match, obviously. And a tiny fraction of innocent people are going to have a DNA match, as well. But if the number of innocent people is large enough, then the number of innocent people whose DNA matches could actually be larger than the number of guilty people. Someone whose DNA matches is actually more likely to be innocent in that scenario.

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Prosecutors and DNA experts aren’t the only ones who get this wrong. Courts do, too. The Ninth Circuit recently made a hash of it in their decision in McDaniel v. Brown, which will now be one of the first cases to be heard by the Supreme Court at the start of this year’s October term.

In McDaniel v. Brown, Troy Brown was prosecuted for the alleged rape of a little girl. The facts are pretty gruesome, but irrelevant here. What’s relevant is that, at his trial, the DNA expert testified that Brown’s DNA matched the DNA in the semen found on the girl, that there was a 1 in 3,000,000 chance that someone’s DNA would match, and that therefore there was a 1 in 3,000,000 chance that Brown was innocent.

Brown got convicted. He later brought a habeas petition to the District Court. He introduced a professor’s explanation of how the prosecution had screwed up. The District Court expanded the record to include the professor’s explanation, and found that the DNA expert had engaged in the Prosecutor’s Fallacy. In part because of that (there was also a chance it could have been his brother’s DNA), the District Court found there wasn’t sufficient evidence to convict.

The government appealed to the Ninth Circuit.

Now, the Ninth is known for being touchy-feely. It’s not known for its analytical prowess. Posner, they ain’t. But they bravely tackled this statistical conundrum. And they screwed up.

In trying to deal with the prosecution’s error, the Ninth swung too far in the other direction, finding that the DNA evidence at Brown’s trial couldn’t establish guilt, period. No jury could have found Brown guilty.

So the government took it to the Supreme Court, making two arguments. One is procedural — that the habeas court shouldn’t have been able to consider the professor’s explanations, but only the trial record, in determining the sufficiency of the evidence before the jury. The other argument is that even though the chances of Brown being innocent weren’t 1 in 3,000,000 they were still pretty damn low, and the DNA evidence is still plenty sufficient.

Brown’s lawyers, to their credit, don’t seem to be arguing that the Ninth Circuit did it right. Instead of characterizing the decision below as ruling on the sufficiency of the evidence, Brown’s attorneys argue that it was really a Due Process ruling. The testimony wasn’t so much insufficient as it was incorrect. It was unreliable. This is bolstered by the fact that the Ninth Circuit ordered a new trial (which Double Jeopardy would preclude after a finding of insufficient evidence, but which is standard after a Due Process finding of unreliable evidence.)

That’s not the way the Ninth characterized its ruling, however, so Brown wisely suggested that the Supreme Court might simply kick the case back for the Circuit to explain its ruling better.

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Oral arguments are scheduled for October 13. We haven’t made any predictions yet about the upcoming term, so we’ll start here.

We think the state will convince Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Ginsberg and Alito of the following:

(1) The Ninth Circuit improperly remanded for a new trial, which is improper after a finding of insufficiency; and

(2) At any rate, the Circuit improperly found the evidence to be insufficient, when there was plenty of evidence of guilt.

We think that Justices Stevens and Breyer (we have no clue about Sotomayor) will dissent, arguing that the jury was totally thrown by the DNA expert’s mischaracterization, that this was a Due Process violation at the very least, and that the DNA evidence probably should have been thrown out entirely, so the Ninth Circuit should be reversed and the District Court’s original ruling should be reinstated.

What are the odds that we’re really right? Who wants to do the math?

With only two more decision dates remaining in this Supreme Court term, we’ve got our eyes on four criminal cases yet to be decided. Either next Monday (June 22) or the following Monday (June 29), we should expect to hear from the Supremes.

We’re going to make a prediction right now that all four cases will be decided in favor of the defense. Furthermore, we predict large majorities or unanimous decisions in each case. (Go ahead and laugh, we’ll wait for you.)

The four cases are:

Safford USD v. Redding, No. 08-479. We talked about this one before (see here). A public school had an absurd zero-tolerance policy (surprise, surprise), this time prohibiting prescription Advil. A girl got caught with some. She blamed someone else (surprise, surprise). School authorities confronted the other girl, Redding, who denied being involved. They searched her backpack, and found nothing. They searched her clothes, and found nothing.

Now at this point, a reasonable person might have figured out that the girl who was caught with the actual pills was trying to pull a fast one here. But these were not reasonable people — they were public school officials. So they had Redding — a 13-year-old girl — expose her breasts and vagina. They found no pills. Then they shook out her underwear, and found nothing. Then both the school nurse and another school official physically searched the girl’s body. They found nothing.

Now at this point, a reasonable person would have surely figured out that there was nothing to see here. But these bright bulbs instead stuck the girl in the principal’s office alone for a few hours, didn’t contact her folks, and didn’t bother searching anyone else.

The girl sued, claiming (surprise, surprise) that her Fourth Amendment rights had been violated.

The Supreme Court has now been asked to decide whether public school officials are permitted by the Fourth Amendment to perform a warrantless strip search of a student whom they merely suspect of possessing forbidden contraband.

The school wants the Court to say yes, schools can perform strip searches any time they have reason to suspect that a student has forbidden contraband. They want a rule that doesn’t let judges second-guess the judgment of school officials.

Our prediction is that the Court isn’t going to grant such a bright-line rule. For the reasons we set out in our previous post, we predict that the Court will require a case-by-case analysis. It will be fact-specific, whether the officials have evidence that is sufficiently credible to justify an articulable suspicion that contraband will be found during a strip search. And it will require a balancing, to ensure that the invasiveness of the search is proportionate to the danger of the contraband sought. A strip-search to find an explosive is one thing; but examining a young girl’s private parts to find Advil is another thing entirely.

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The next case we’re looking for is Yeager v. United States, No. 08-67.

The issue in Yeager is collateral estoppel after a hung jury. Specifically, a jury acquitted on some counts, and hung on other counts, all sharing a common element. Perhaps the only explanation for the acquittals is that the jury decided that common element in the defendant’s favor. So is the government prevented from re-trying the hung counts, by collateral estoppel?

Yeager was an executive with Enron’s telecom unit, charged with 176 white-collar crimes. After a three-month-long trial, the jury acquitted him on the counts of conspiracy, securities fraud and wire fraud. But the jury hung on the counts of insider trading and money laundering.

The Fifth Circuit said that one explanation for the acquittals is that the jury found that Yeager had no inside information. That was also an element of the insider trading count. But the Circuit said it was impossible to determine “with any certainty what the jury” actually must have decided. So that meant there could be no collateral estoppel precluding a new trial.

At oral argument, Justice Souter honed in on the real issue here, which is a conflict between two underlying principles of our current jurisprudence. On the one hand, once a jury has determined a fact, the government doesn’t get a second chance to prove it. On the other hand, the government is permitted a full opportunity to convict, so it is allowed to re-try counts where a jury hung. Chief Justice Roberts and Justices Kennedy and Breyer explored the conflicting principles in greater depth. Although the government’s attorney was more deft at handling the philosophical argument, and Yeager’s attorney seemed to be stuck in a surface argument, it seemed by the end that the Court was siding with Yeager.

What seems to have killed the government’s position here was its assertion that acquittals should not affect retrials if they are not “rational” — meaning they are inconsistent with the jury’s remaining outcomes — and that a hung count is an outcome that can be used to determine whether the actual verdicts were rational. That not only conflicts with precedent that permits inconsistent verdicts, but also defies common sense by treating the absence of a decision as an affirmative determination.

This one’s a tossup, but we’re going to predict a ruling in favor of Yeager here.

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The third case to watch for is District Attorney’s Office v. Osborne, No. 08-6.

Osborne was convicted 14 years ago for kidnapping and sexual assault. The victim was brutally assaulted and raped in a remote area in Alaska. Osborne was alleged to have used a blue condom. A blue condom was found at the scene, containing semen. Osborne now wants to get discovery of the semen, and have DNA testing done at his own expense, in the hopes that it will demonstrate his innocence. The State of Alaska refused.

Osborne brought a 42 U.S.C. §1983 civil rights suit, arguing that Alaska’s refusal violated his Due Process rights. The district court dismissed the suit, saying he should have brought a Habeas claim instead.

The Ninth Circuit issued two decisions. The first was that a §1983 suit is fine here, because the outcome would not necessarily undermine the state-court conviction. The DNA evidence could potentially prove his guilt, or be inconclusive. It would only require Habeas if the evidence would have to demonstrate innocence. And he could still bring a Habeas later if the §1983 action fails.

In its second decision, the Ninth Circuit forced the Supreme Court’s hand. The Supremes have long taken pains to avoid deciding whether a convict can overturn his conviction based only on a claim of innocence, rather than on pointing out defects in the way the trial was conducted. But the Ninth assumed that this is permissible.

Then, based on that assumption, the Ninth said that in circumstances like that — in fact, only in circumstances like that — where a convict could later use the evidence in a freestanding innocence claim, then Brady gives a post-conviction right to access potentially favorable evidence.

The Supreme Court is now deciding both issues: whether the §1983 suit is appropriate for accessing DNA evidence post-conviction, and whether Due Process requires such access if it could establish innocence.

At oral argument, Justice Souter barely let the Alaska A.G. get a word out before launching a lengthy debate over whether Osborne merely sought evidence that might or might not allow him to establish a claim later, or whether he sought evidence that he affirmatively believes will be the basis of a claim of innocence. By the end, both Scalia and Ginsburg had gotten involved, and the Chief Justice was wondering whether the State even had the evidence any more. Breyer got everyone back on track, pointing out that §1983 was appropriate when you didn’t know what the evidence was yet, and Habeas is appropriate when you do know. And here, nobody knows what the DNA evidence is, yet. So how come the State doesn’t have a constitutional obligation to give him the DNA?

The AG gave a terrible response, saying that Osborne simply followed the wrong procedure. Half the bench jumped in to interrupt him, dumbfounded at the assertion, given that Alaska doesn’t have a statutory procedure in the first place. The one statute out there (as Scalia pointed out) first requires an assertion that the evidence establishes innocence, which is the one thing nobody can say yet, because it hasn’t been tested yet. Souter and Scalia tag-teamed the AG on that mercilessly. At one point, Scalia had the audience laughing at the AG. For the rest of the oral argument, the Justices would refer to the fact that they “must have missed” this procedure being mentioned in any of the briefs.

By the end of the AG’s time, nobody had even gotten to the juicy issues yet. Breyer tried to give the AG a chance to talk about it, but the AG just went back to his procedural claim that had used up his time already. This only frustrated the Justices.

The U.S., as amicus to Alaska, started off better, getting to the heart of the issue — the issue the Supreme Court has so long avoided — arguing that prisoners do not have the right to challenge their conviction based on a freestanding claim of actual innocence. But Souter suggested that the right may be found, “not in procedural, but in substantive Due Process,” and asked a hypothetical about letting counsel speak to another prisoner who claims to have exonerating evidence. The Deputy S.G. floundered, and got laughed at as well. They never even got to the constitutional issue (as Souter repeatedly pointed out), and got mired in whether the government even has an interest here in the first place. And then time was up.

Osborne’s lawyer did much better. He deflected the Court’s concerns that at trial the defense had chosen not to test the DNA, and thus must have believed it would show guilt, by pointing out that both sides chose not to test it, because the tests available would have destroyed all of the evidence, precluding later testing.

The Justices across the board expressed concern that they were being asked to create a new constitutional right here. Shouldn’t a prisoner have to make a claim, under penalty of perjury, that he is actually innocent first? Shouldn’t there be a requirement of due diligence, so that claims aren’t made years and years after they could have been brought? Osborne’s attorney admitted that those are fine ideas, and wouldn’t be an obstacle here.

Then Scalia tipped his hand a little. Osborne’s lawyer observed that this is the first case where a prosecutor conceded that DNA would be “absolutely slam-dunk dispositive of innocence,” but doesn’t let the prisoner access it. Scalia thought out loud, “you know, it is very strange. Why did they do that, I wonder?” “Well, it’s very…” Scalia interrupted, “there was a lot of other evidence in the case, wasn’t there?” “Well, that’s…” Scalia cut in, “I don’t know what they thought they were doing.”

Scalia, for one, is not likely to side with the DA’s office here.

Souter came back to his conclusion that this is a substantive Due Process issue, which would require that the prisoner first claim that he is actually innocent. This conflicted with the sworn testimony before the Parole Board admitting guilt. But Breyer pointed out that prisoners often wisely admit guilt before such Boards, because they’re not getting out otherwise. (As defense lawyers like to say, forget guilt or innocence, “out is out.”) So relying on Parole Board admissions would be an arbitrary basis for withholding DNA evidence. So “suppose we said that the rule is non-arbitrary, with illustrations. Send it back to the states. And of course, when they apply their own statutes, by and large they’re not being arbitrary.” Osborne’s counsel agreed, “I think that’s a very sound approach to this.” Breyer responded, “well, it does help you win.”

I don’t think Breyer or Souter are siding with Alaska here, either.

The Chief Justice wondered if the right would be depend on the accuracy of the testing available. No, said Osborne’s lawyer, it has nothing to do with it — the right would just prohibit the state from arbitrarily preventing access to evidence. So long as there’s a reasonable probability that the test will demonstrate evidence, then that should be enough.

On rebuttal, the AAG got maybe three words in edgewise.

So just going from the oral argument, we’re going to predict a loss for Alaska.

Now whether that means a whole new constitutional right or not, well we’re not so sure. This only affects a handful of defendants whose convictions came before the Federal Innocence Protection Act in the mid-1990s.

The trick, though, will be whether the Court can continue to avoid the elephant in the room, the issue of whether one can assert a freestanding claim of innocence. The Ninth Circuit made it a prerequisite, and both the liberal and conservative Justices seemed to put a lot of weight on whether the prisoner first asserted innocence.

We predict that the Court is going to go all the way here. And as long as we’re going out on a limb, we’ll also predict a unanimous decision.

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The final criminal case yet to be decided is also the oldest: Melendez-Diaz v. Massachusetts, No. 07-591.

The issue is straightforward: Is a lab report, by itself, a form of testimony for Confrontation Clause purposes, per Crawford v. Washington, 541 U.S. 36 (2004)?

Crawford says you can’t introduce earlier statements of a government witness, if they hadn’t been subject to cross-examination.

Well, a police lab report wasn’t subject to cross-examination when it was created. But they are often admitted into evidence without live testimony from the chemist or forensic expert who made the report — they’re self-authenticating. If lab reports are testimonial, then Crawford would preclude this practice. If they are not testimonial, but merely a record, then they could continue to be admitted without live testimony.

The Massachusetts Supreme Judicial Court looked at this conundrum a couple times, and decided that drug analysis reports were simply records of “primary fact, with no judgment or discretion,” by the chemist who prepared them. So they weren’t testimonial, and there was no Confrontation Clause problem.

Melendez-Diaz was the defendant in the second such case, which affirmed the first one.

It’s a sure bet that Scalia is going to side with the defendant here. He has long been a champion of the Confrontation Clause, and his contributions at oral argument were true to form.

The Massachusetts AG was frankly an embarrassment, making inaccurate assertions (and being corrected by the Court), resting heavily on the lame argument that nobody’s made this particular claim before, and claiming that requiring chemists to testify would be an “undue burden,” even though it’s no such burden to California or New York or any other state where it’s routinely done at trial. Kennedy even coached the AG with arguments that she ought to have been making, and scolded her when she still didn’t make them.

Justices Kennedy, Scalia and Stevens had little patience for the amicus Assistant S.G., whose argument was that machine-generated reports aren’t testimonial. There’s a difference between an automated record and a computerized document created for the purpose of proving an element of a crime at trial. And they’re different from computerized documents reflecting the observations and conclusions of a human being.

Based on how the oral argument went, we’re going to predict yet another win for the defendant.

I love reading Scott Greenfield’s blog Simple Justice. He posted a good one the other day called “Another Prosecutor Loses Her Virginity,” about a former prosecutor, Rochelle Berliner, now a defense attorney, who just came to the realization that cops sometimes lie.

Her epiphany was published in Saturday’s New York Times, in an article headlined “Drug Suspect Turns Tables on NYPD With Videotape.” A pair of defendants had actual video evidence that the cops had totally fabricated the entire basis for their arrest, and they gave the video to Rochelle.

”I almost threw up,” she said. ”Because I must’ve prosecuted 1,500, 2,000 drug cases … and all felonies. And I think back, Oh my God, I believed everything everyone told me. Maybe a handful of times did something not sound right to me. I don’t mean to sound overly dramatic but I was like, sick.”

Scott has a typical defender’s take on this.

What is disturbing about Berliner’s exclamation is not that she spent 14 years prosecuting people without having realized that maybe, just maybe, her cops weren’t perfect. That’s to be expected of career prosecutors, who often spend their entire careers with their heads deeply embedded in the cops’ derrière. It tends to give one a poor view of reality. It’s that she spent four years since leaving Special Narcotics as a defense lawyer and yet, not until now, was aware of the fact that cops, sometimes, fabricate crimes out of whole cloth. That’s four years of defendants represented by someone who was certain that they wouldn’t have been arrested if they weren’t guilty.

. . .

Rochelle Berliner now knows better. Welcome to the ranks of criminal defense lawyer, where we don’t have all the answers but we do know that the prosecution doesn’t either. You’re lucky that you’ve joined in the age of pervasive video, or you still wouldn’t believe this possible. Imagine how many times before the age of video Dominican immigrants like the Colon brothers were convicted for crimes that never happened, with someone like you feeling awfully good about it. I can understand why this would make you sick.

So congratulations on losing your virginity. I hope it didn’t hurt too much. I’m sure it didn’t feel very good for Jose and Maximo Colon, and I hope Police Officer Henry Tavarez loses his soon.

We didn’t want to comment on this, at first, because it so happens that we worked with Rochelle for a few years in Special Narcotics, and we knew and liked her. And frankly, she is well-equipped to defend her own self if she so desires.

But Scott’s piece, and a couple of the comments posted to it, kept nagging at us. There are some things we think really ought to be said here. So here’s our two cents’ worth:

First of all, a quick and unnecessary defense of Rochelle. We’ve known a whole array of prosecutors in our time, and Rochelle was one of the good ones. There certainly are prosecutors out there who are so misguided as to believe that their job — we kid you not — is to fight to convict anyone the cops bring in. We once walked out of an interview (with Dade County) where that exact philosophy was espoused. And there are plenty others who just put in their time to do a workmanlike job, without pushing themselves too hard one way or the other. But there are a significant number who truly believe their job is to achieve a just outcome, taking everything into consideration. Rochelle always struck us as being one of the latter.

And yet her bullshit meter seems not to have been working properly for nearly 18 years. What gives?

Speaking for ourselves, we like to think our own B.S. meter was working just fine — at least a lot of the time. We pissed off a lot of cops in our day. And there are some ex-cops who probably still rue the day that they lied to us. But there’s no way our B.S. meter was on all the time. It’s impossible.

We worked with a lot of the same detectives, over and over. You get to know the teams pretty well. They’re almost friends, some of them. You learn which ones are straight arrows, which ones are clowns, which ones are unscrupulous or lazy, and which ones are just along for the ride. You learn that most of them are happily gaming the system to make as much overtime as possible. You also learn that most of them couldn’t care less whether someone gets convicted after the arrest is written up. And hopefully you’re able to listen to each individual with the appropriate level of disbelief.

But when you’ve worked with someone for a while, and gotten to know them, it’s natural to let your guard down. How skeptical are you likely to be of someone who’s been pretty straight with you for as long as you’ve known them? And even if you do retain some skepticism, so what? There has to be a reason to suspect that the facts are not what you’re being told, and most of the time there’s no reason to do so.

Part of this is the randomness of real life. Maybe there’s a little detail that’s not right — or perhaps too right. But that’s life. The truth is rarely ideal. So it’s not easy to tell when any particular glitch in the matrix is a clue to something more sinister.

Part of this is the sheer routineness of drug cases. There are only so many ways these crimes happen, and the facts don’t vary too much from case to case. When the story you just heard happens to fit the pattern of the past thousand cases you’ve handled, it would be strange to be skeptical.

So even with a fully-functioning B.S. meter, there’s no way you’re going to catch everything. You just do the best you can.

The irony is that, the longer one serves, even as one’s knowledge of street reality grows from rookie ignorance to near-expert mastery, one’s ability to sense bullshit decreases dramatically, for all the reasons just mentioned. You’ve known the cops forever, you’ve handled this same kind of case countless times before, and the story just rings true.

This is where we defense attorneys have an obligation.

I’ll give my defender readers a moment to recover. Yes, I actually suggested that we are obliged to do something here.

You okay? Good. Yes, we defense attorneys have an absolute duty to ensure that prosecutors are given all the tools necessary to flush out the bullshit. This isn’t burden-shifting, it’s an imperative of our role.

For street crimes, the only facts an ADA or AUSA has in any given case are those provided by the cops or agents involved. If those facts fit together, there is no reason to believe the truth is otherwise.

It is so rare as to be remarkable for a defense attorney to come to a prosecutor with new facts, or a new way of looking at the facts. But most of the time, whenever it happened to us or we’ve done it ourselves, it was most assuredly worth it.

In any given case, the prosecutor has already made up his or her mind about guilt, innocence, and the appropriate plea, based on the facts provided by the cops. No amount of whining or cajoling or begging is going to change their mind. And yet that is precisely the idiotic strategy used by so many defenders out there. The only way to change someone’s conclusions is to present new facts that change the conclusion.

This isn’t burden-shifting, it’s a defender’s duty. Our job is to protect our clients, period. If the prosecutor is holding all the cards, and is going to make the biggest decision of our client’s life, we need to do what we can to make sure the right decision is made. We have an obligation to extract from our (yes, probably unwilling) client and other witnesses the facts that will make a difference.

And you know what? When a defense attorney came to us with new facts, or a new way of looking at them, we listened. We didn’t listen to the whiners, but we did listen to those who truly advocated, who had something we needed to hear. And more often than not, at least in our experience, such advocacy resulted in a dramatically improved outcome for the defendant. We were known to even dismiss indictments, if the new facts warranted.

* * * * *

We can’t end this without revealing a dirty secret, however. Prosecutors are only human, after all, and even the best are subject to incentives that reduce the likelihood that their bullshit meter is on full power.

Some people just want to be liked, and so they go along with whatever the cops tell them. These people are patsies and pushovers, and tend not to last long as prosecutors.

Some people befriend the cops, and so become not the advocates of the People, but of the officers. They go to bat for their cops — and yes, “their” cops is how they’d phrase it — even against the cops’ own supervisors. Friendship and loyalty are powerful human traits, and it’s the exceptional person who can act in spite of, rather than in keeping with, such emotional forces.

And some people are ambitious. A prosecutor without ambition is something of an oddity, and one is never quite sure about them. Ambitious prosecutors want good cases. They want big cases. They want that one case that makes them feel like they’re actually making a difference, and not just holding back the tide with a teaspoon.

Well, the big cases don’t just land in your lap. They are brought to you. And they are brought to you by the cops. And the cops won’t bring them to you unless they like you, feel like they can work with you, and trust you do prosecute the case the way they’d want it to be prosecuted.

Are the cops going to bring their big cases and investigations to the ADA who’s always giving them a hard time? The ADA who busts their balls over every little glitch? The ADA who doesn’t go to bat for that RDO overtime once in a while? Hardly.

So this is a real, albeit unspoken incentive. (Actually, it’s not unspoken. We were told this plainly and clearly by multiple prosecutors and cops during our time with Special Narcotics. Sometimes as a warning of what to watch out for, but also sometimes as instructions on how to act if we wanted to start getting those juicy investigations.)

So an ambitious prosecutor has an incentive to act in such a way as to increase the chances of bagging the big cases. Does that mean such prosecutors are necessarily turning off their B.S. meters? That they’re consciously avoiding knowledge of the truth, or knowingly deciding not to challenge the story they’re getting. No, not at all.

It’s not a conscious process. It’s a perfectly human, unconscious thing. The decision is probably not passing through the frontal lobes. It just happens that way.

* * * * *

So there are all kinds of reasons — some justifiable, some not — for prosecutors to believe tales told by cops that may not be exactly truthful.

Knowing this to be the case, what should we defense attorneys do about it? Should we throw up our hands and bemoan the injustice of it all? That wouldn’t accomplish anything. Should we fight to change the system, so that it minimizes the inevitable injustices occasioned by its administration by human beings? Of course, and that’s been the role of our jurisprudence since Magna Carta, but it’s hardly useful on a case-by-case basis.

What we need to do is acknowledge that this is a phenomenon that occurs. That there are reasons why it occurs. And then take the necessary action on our own part to minimize the injustice. If we have facts that the prosecutor ought to know, then share them! Better to persuade one lawyer now than to hold on to the facts and seek to persuade twelve random jurors a year from now. If we have a perspective about what the facts mean, then persuade the prosecutor. Don’t whine or plead, just make a rational argument from shared principles. It works often enough.

And if push comes to shove, and you have a fight on your hands, then goddammit fight. But don’t just complain that the system is unfair.

Good defense attorneys like Scott Greenfield get this. Good prosecutors get it, too.

In a solid 7-2 decision this morning, the Supreme Court ruled that jurors in a RICO case can infer the existence of a racketeering enterprise simply based on its activity, and don’t need evidence of any separate structure or hierarchy.

This clears up some misconceptions that have been floating around for a while about what the RICO statute actually says. We’ve always thought that the language was fairly straightforward, but have been amazed at the variety of interpretations we’ve heard from prosecutors, defense attorneys and judges.

Writing for the majority in Boyle v. United States, Justice Alito ruled that an enterprise must have a structure of some kind, but not necessarily one that is separate and distinct from that “inherent in the pattern of racketeering activity in which it engages.”

Boyd was one of several people who took part in dozens of bank robberies across several states in the early 1990s. There was a “core group” of conspirators, and others would be brought in as needed. The crimes followed a pattern, but the offenders weren’t formally organized. It was a loose and informal association, without any hierarchy or long-term arrangement.

At trial, Boyd’s judge told the jurors that the government had to prove the existence of a RICO enterprise by proving that:

(1) There [was] an ongoing organization with some sort of framework — formal or informal — for carrying out its objectives; and

(2) The various members and associates of the association function[ed] as a continuing unit to achieve a common purpose.”

The judge also told the jury that it could:

find an enterprise where an association of individuals, without structural hierarchy, [had been formed] solely for the purpose of carrying out a pattern of racketeering acts;

[and that]

Common sense suggests that the existence of an association-in-fact is oftentimes more readily proven by what it does, rather than by abstract analysis of its structure.

Hewing to a common misconception about what RICO requires, Boyd’s counsel wanted instead an instruction that the government had to prove that the enterprise had:

a) An ongoing organization;

b) A core membership that functioned as a continuing unit; and

c) An ascertainable structural hierarchy distinct from the charged predicate acts.

But the judge’s instruction came almost straight out of the Supreme Court’s decision in U.S. v. Turkette, 452 U.S. 576 (1981), which held that “an enterprise includes any union or group of individuals associated in fact,” and that RICO targets “a group of persons associated together for a common purpose of engaging in a course of conduct.” Such an enterprise could be “proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.”

The newly-clarified rule of this case is that:

(1) An enterprise must have a structure. This essentially means that there have to be different parts that make up the whole, as well as a pattern of relationships among the members of the group.

An association-in-fact enterprise (one that exists without having been formally established as a legal entity) must have at least three structural features (though the word “structure” is not necessary in jury instructions). These features are: (1) A purpose; (2) Relationships among those associated with the enterprise; and (3) Longevity sufficient to permit the associates to pursue the enterprise’s purpose.

There is no requirement that a structure must have a hierarchy. Nor need there be role differentiation, a unique modus operandi, a chain of command, professionalism and sophistication of organization, diversity and complexity of crimes, membership dues, membership rules and regulations, uncharged or additional crimes aside from predicate acts, an internal discipline mechanism, regular meetings regarding enterprise affairs, an enterprise name, or induction/initiation ceremonies and rituals. All that is required is a continuing unit that functions with a common purpose, no more.

(2) It is redundant and misleading to require a jury to find the existence of an “ascertainable structure.” If a jury finds that there was a structure beyond a reasonable doubt, then of course it was ascertainable, because they found it. Requiring this extra verbiage implies that the structure be something more than what is required.

(3) The existence of an enterprise is, of course, a separate element to be proved. That does not mean, however, that the existence of the enterprise must be separate from the racketeering activity in which it engaged.

This stuff isn’t rocket science. It’s not even Logic 101. But we’ve heard prosecutors, judges and defense counsel mangle this often enough that the Court’s clarification today is refreshing.

* * * * *

Speaking of mangling, however, two Justices did dissent. Stevens was joined by Breyer in opining that an “enterprise” refers only to “business-like entities that have an existence apart from the predicate acts committed by their employees or associates.”

This is the most common of the misconceptions we’ve come across regarding RICO. Still, it is surprising to hear it come from two such respected jurists. We think Stevens and Breyer do know better.

Stevens has been doing a lot of forceful dissenting in this term, and that has long led us to believe he’s putting the finishing touches on his legacy before retirement. If anyone had announced their retirement this term, we’d have certainly expected Stevens rather than Souter, for this reason alone. We still believe, however, that he’s preparing for retirement, and wants to get his jurisprudence out there.

On this matter, however, we don’t see this particular dissent coming back to form the basis of a new rule somewhere down the road. He focuses on an interpretation of Congress’ intent when it drafted the statute, an interpretation that is dubious at best. And he makes the unfortunate mistake of conflation: the existence of an enterprise is a separate element of the offense, and so therefore the enterprise must exist separately from its activities.

In other words, an enterprise that does nothing else but work to achieve its criminal ends cannot be a RICO enterprise. That’s just absurd. And that is certainly not what Congress intended.

In a decision sure to be fought before the 9th Circuit, a federal judge in the Eastern District of California yesterday upheld mandatory DNA collection from people merely arrested for federal felonies, regardless of the nature of the crime charged.

Obviously, this raises eyebrows in certain circles. Taking DNA from people who haven’t even been convicted yet? Taking DNA from people who aren’t suspected of committing crimes where DNA would even be relevant? Doesn’t this violate basic principles of our jurisprudence?

Well… and this is a defense attorney talking here… no.

The case is U.S. v. Pool, decided by Judge Gregory G. Hollows. The defendant was charged with possession of child porn, and was released on bond. One of the conditions of release was that he provide a DNA sample.

This requirement was mandatory under two federal laws: the Bail Reform Act, 18 U.S.C. § 3142(b) and (c)(1)(A), which mandates it for pre-trial release; and the DNA Fingerprinting Act of 2005, 42 U.S.C. § 14135a, which mandates it for everyone arrested on a federal felony charge.

DNA is usually collected by dabbing a cotton swab in the person’s mouth or something similar. Rarely, it is collected by a blood test. The DNA is to be used solely by law enforcement for identification purposes.

Pool argued that this warrantless DNA sampling violates the Fourth Amendment. It’s a search, there’s no warrant, and there’s no special need for the testing for nonviolent arrestees.

Judge Hollows rejected that argument, stating that every Circuit to consider the issue has held there to be no Fourth Amendment violation here, and that the criterion is not “special need” but rather the “totality of the circumstances.” The reasonableness “is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”

Pool argued that pre-conviction sampling is improper, based on the Supreme Court cases Ferguson v. City of Charleston, 532 U.S. 67 (2001)(unconstitutional search for law enforcement to use hospital’s diagnostic test of pregnant patient to obtain evidence of drug use), and City of Indianapolis v. Edmond, 531 U.S. 32 (2000)(vehicle checkpoint unconstitutional when primary purpose was to detect evidence of drug trafficking). Those cases relied on the “special need” analysis he suggested.

Judge Hollows rejected that as well, as those searches involved police fishing for evidence, before anyone was formally charged with a crime. The statutes at issue here subject people to DNA testing after a finding of probable cause by a judge or grand jury. After someone’s been indicted, courts can impose all kinds of restrictions on liberty. The situation is much more like that of people who have been convicted, than of people who have not yet been charged with anything, and so the “totality of the circumstances” test is more appropriate.

For more than 45 years, it’s been well-settled that someone who’s been arrested has a diminished expectation of privacy in his own identity. He can be compelled to give fingerprints, have his mug shot taken, and give ID information. DNA is no different than fingerprints — a unique identifier that helps law enforcement find the right suspect, and eliminate the wrong suspect. In fact, DNA is more precise than photos or fingerprints, so the government interest in obtaining it is even stronger.

Meanwhile, the invasiveness is minimal. Even blood tests are considered “commonplace, safe, and do not constitute an unduly extensive imposition on an individual’s privacy and bodily integrity.” Oral swabs are considered no more physically invasive than taking fingerprints.

The judge also rejected arguments that DNA evidence, once taken, might possibly be stolen and put to an impermissible use. That risk applies to everything, and there are criminal penalties to deter it. Just because someone might break the law doesn’t mean the setup is improper.

Judge Hollows pointed out that all the same concerns being raised about DNA were raised in the early part of the 20th Century with respect to fingerprints. And since at least 1932 it’s been understood that the public interest far outweighs the minimal burden to the individual being fingerprinted. The same reasons that justify post-arrest fingerprinting without a warrant justify post-arrest DNA sampling without a warrant.

Pool also argued that this violates Fifth Amendment procedural due process, because it’s mandatory, and thus precludes an opportunity to be heard. But that only applies if the defendant’s privacy rights outweigh the government interest, and it’s the other way around here. Pool argued that there is a risk of erroneous deprivation of his privacy interest, for arrestees who are not ultimately convicted. But the system is set up to expunge DNA records if the person is exonerated or the charges are dismissed. So the risks are minimal, and the government interests are compelling, and that means there is no procedural due process problem.

Pool also argued that this violates the Eighth Amendment protection against excessive bail. Bail conditions have to be proportionate to the perceived government need requiring the condition. But the Supreme Court case that set this rule, U.S. v. Salerno, 481 U.S. 739 (1987), specifically rejected any idea that this “categorically prohibits the government from pursuing other admittedly compelling interests through regulation of pretrial release.” This being nothing more than a booking procedure, and not comparable to conditions of release that actually have to do with the concerns arising from letting someone out on bail, there’s no reason to consider it excessive.

Pool also argued that the statutes violate the Separation of Powers, as Congress has intruded on judicial decision-making in the setting of bail conditions. But here, Congress didn’t direct any judicial findings. It merely directs what the judge needs to do after a certain finding has been made. That’s what Congress is supposed to do. There’s no problem there.

Poole finally argued that this is an unconstitutional extension of power, because the Commerce Clause doesn’t authorize DNA sampling. But the Commerce Clause lets the government make conduct a federal crime. The resulting government powers, such as incarceration and terms of release, have nothing to do with it, and don’t need to be independently authorized under the Commerce Clause.

* * * * *

What to make of this?

Pool’s arguments stem from a presumption that a person out on bail is more like a pre-arrest suspect. Judge Hollows’ decision stems from the opposite conclusion, that a person out on bail is more like a person on post-conviction supervised release. Any arguments before the 9th Circuit will have to focus on which it is, and we are inclined to believe that the Circuit will side with Judge Hollows here.

Central to the distinction is the fact that there has already been a judicial determination here, separating the defendant from the class of unarrested individuals. Either a judge or a jury has found that it is more likely than not that a federal felony was committed, and that this person did it. Once that has happened, a person’s rights are substantially changed. Society has an interest in ensuring that they come back to court to be judged. Society has an interest in ensuring that they don’t cause more harm in the meantime. These interests outweigh a defendant’s interests in liberty and property, to varying degree depending on the individual. That’s why we have bail and bail conditions.

What is odd, however, is that Congress made DNA sampling a mandatory bail condition, when it has nothing to do with pre-trial release.

Judge Hollows correctly points out that, conceptually, DNA sampling is no more invasive than fingerprinting, and is used for the same purposes. It’s a booking procedure, not a release consideration. Congress could just as easily have made DNA sampling a mandatory part of post-arrest processing, along with the mug shot and fingerprints. It would have been just as constitutionally sound.

By calling it something that it’s not, Congress subjected DNA sampling to this exact challenge.

Now, the ACLU differs with us, and calls the ruling “an incredible threat to civil liberties.”

“We think this ruling is incorrect,” ACLU attorney Michael Risher told reporters. “It ignores the presumption of innocence and it does not pay enough attention to the protections of the Fourth Amendment.” He also opined that police now have an incentive to make pretext arrests, just to get people’s DNA to help them solve crimes. How this changes things from the already-existing incentive to make pretext arrests to get fingerprints is unclear to this defense attorney. And anyway, police don’t need to arrest someone to get DNA or fingerprints — they can be collected by pretext in any number of ways, without a warrant, and often are.

With respect to the Fourth Amendment, what is clear here is that this is not a search for evidence. The crime has already been charged. It’s very clearly an administrative tool for establishing the identity of the defendant. Evidentiary consequences are merely hypothetical, if the person should somehow commit a violent crime in the future and leave behind DNA that gets compared to the database. That’s no different from mug shots, and unlike mug shots (where the chances of a false positive are unreasonably and embarrassingly high, given their variety and the innate unreliability of eyewitness recognition) DNA has an insignificant risk of identifying the wrong person. Mug shots aren’t a Fourth Amendment issue, neither are fingerprints, and neither is DNA, really.

* * * * *

One issue, however, is when the DNA is being taken for the purpose of gathering evidence, in the investigation of a crime.

That’s not the case here, and it’s sort of off point, but should a warrant even be involved then?

Well, isn’t it a Fifth Amendment violation then? You’re making someone incriminate himself against his will, right?

Wrong. Self-incrimination doesn’t enter into it, because what’s important there, the underlying policy of the right, is that we don’t want the government overriding people’s free will, and making them convict themselves out of their own mouths. We don’t want another Star Chamber. We don’t want the government using its overwhelming power to extort unwilling confessions, whether by thumbscrews, lead pipes, or simple custodial interrogation.

But taking blood samples has been held not to involve the right against compelled self-incrimination. Nobody’s being forced to say “I did it.” All they are being forced to do is provide physical evidence. There is no free will involved in the creation of that physical evidence — it exists whether the person wants to hand it over or not — but there is free will involved in the creation of confessions and incriminating statements.

But that brings us back to the Fourth Amendment. If someone is being compelled to give a swab or blood sample, then the government is seizing pre-existing evidence just as if they were seizing drugs from someone’s home. So shouldn’t a warrant be required after all?

Yes it should. But that’s only when the evidence is being sought as evidence. Constitutional rights really do depend on what’s going on. An administrative requirement is not the same thing as a criminal investigation. A DNA sample for administrative ID purposes is not the same thing as one taken to identify a potential suspect.

That’s the big difference here. And even given the 9th Circuit’s pro-defendant tendencies from time to time, we have a hard time predicting anything but an affirmation of Judge Hollows’ decision when this comes up on appeal.

The Supreme Court ruled this morning that a confession obtained in violation of the 6th Amendment right to counsel is still admissible on cross-examination to impeach a defendant who testified that someone else did it.

Writing for the 7-2 majority in Kansas v. Ventris today was the always-entertaining Justice Scalia. He summed up the facts more pithily that we could, and we’re keen to see if we can figure out to insert block quotes, so here’s Scalia’s summary:

In the early hours of January 7, 2004, after two days of no sleep and some drug use, Rhonda Theel and respondent Donnie Ray Ventris reached an ill-conceived agreement to confront Ernest Hicks in his home. The couple testified that the aim of the visit was simply to investigate rumors that Hicks abused children, but the couple may have been inspired by the potential for financial gain: Theel had recently learned that Hicks carried large amounts of cash.

The encounter did not end well. One or both of the pair shot and killed Hicks with shots from a .38-caliber revolver, and the companions drove off in Hicks’s truck with approximately $300 of his money and his cell phone. On receiving a tip from two friends of the couple who had helped transport them to Hicks’s home, officers arrested Ventris and Theel and charged them with various crimes, chief among them murder and aggravated robbery. The State dropped the murder charge against Theel in exchange for her guilty plea to the robbery charge and her testimony identifying Ventris as the shooter.

Prior to trial, officers planted an informant in Ventris’s holding cell, instructing him to “keep [his] ear open and listen” for incriminating statements. App. 146. According to the informant, in response to his statement that Ventris appeared to have “something more serious weighing in on his mind,” Ventris divulged that “[h]e’d shot this man in his head and in his chest” and taken “his keys, his wallet, about $350.00, and . . . a vehicle.” Id., at 154, 150.

At trial, Ventris took the stand and blamed the robbery and shooting entirely on Theel. The government sought to call the informant, to testify to Ventris’s prior contradictory statement; Ventris objected. The State conceded that there was “probably a violation” of Ventris’s Sixth Amendment right to counsel but nonetheless argued that the statement was admissible for impeachment purposes because the violation “doesn’t give the Defendant . . . a license to just get on the stand and lie.” Id., at 143. The trial court agreed and allowed the informant’s testimony, but instructed the jury to “consider with caution” all testimony given in exchange for benefits from the State. Id., at 30. The jury ultimately acquitted Ventris of felony murder and misdemeanor theft but returned a guilty verdict on the aggravated burglary and aggravated robbery counts.

The Kansas Supreme Court reversed the conviction, holding that “[o]nce a criminal prosecution has commenced, the defendant’s statements made to an undercover informant surreptitiously acting as an agent for theState are not admissible at trial for any reason, including the impeachment of the defendant’s testimony.”

In his decision this morning, Scalia pointed out that the exclusionary rule is applied differently, depending on the rights that were violated. The Fifth Amendment’s protection from compelled self-incrimination is enforced with an absolute exclusion — the overriding of an individual’s free will and extraction of a confession is so heinous, that the confession cannot be used either in the prosecution’s case-in-chief, nor in rebuttal, nor for impeachment. The exclusionary rule there is used to prevent violations of the right. On the other hand, the exclusionary rule is not automatic in the Fourth Amendment search-and-seizure context, nor is it absolute, but can instead be used to rebut and impeach the defendant’s testimony.

With respect to the Sixth Amendment, when there is a pretrial interrogation of a defendant — after the defendant has been formally charged — the defendant has the right to have a lawyer present. Apart from that, it only guarantees a right to counsel at trial. The reason why there’s a right to counsel at the interrogation stage is because interrogation is a critical stage of the prosecution.

Let’s stop there for a second to point out that this is an odd presumption. It’s odd in that the only interest at stake is the defendant’s interest in beating the rap. We’re not talking about coerced confessions here. The reason for this rule cannot be that we want a witness to the confession, a defense lawyer who can confirm whether it was voluntary or not. Because the attorney can’t testify, and he isn’t likely to be believed in the first place, because he’s interested in protecting his client.

The effect is to stop confessions that otherwise would have been freely made, by requiring counsel whose real purpose is to tell the defendant to shut up. The obvious problem is that, if a lawyer was present, then that would make the police acts even more offensive, violating or infringing on attorney-client confidentiality, which would be even more violative of the Sixth Amendment’s right to counsel. Frankly, when the Supreme Court carved out this rule in Massiah, Brewer, etc. they were fighting a non-existent Sixth Amendment problem while ignoring the actual underlying Fourth Amendment problem.

But we digress.

Scalia, too, has problems with Massiah, calling it “equivocal on what precisely constituted the violation. It quoted various authorities indicating that the violation occurred at the moment of the postindictment interrogation because such questioning ‘contravenes the basic dictates of fairness in the conduct of criminal causes.’ But the opinion later suggested that the violation occurred only when the improperly obtained evidence was ‘used against [the defendant] at his trial.’”

Nevertheless, Scalia had no problem deciding that “the Massiah right is a right to be free of uncounseled interrogation, and is infringed at the time of the interrogation.”

So far, so good. Everyone now agrees that there was in fact a Sixth Amendment violation here. The issue now is whether the fruits of that violation must be excluded absolutely, as with a Fifth Amendment violation, or only kept out of the case on direct, as with the Fourth.

In this situation, Scalia argued, the purpose of exclusion would not be prevention of the violation, as it is with the Fifth Amendment. Instead, the purpose would be to remedy a violation that has already occurred, as with the Fourth.

When that is the purpose, there is strong precedent that such excluded evidence is allowed for impeachment. The defendant’s interests are outweighed by the need to prevent perjury, and by the need to ensure the integrity of the trial process. Although the government cannot make an affirmative use of evidence unlawfully obtained, that doesn’t mean the defendant can shield himself against contradiction of his untruths.

Therefore, once a defendant has testified contrary to his excluded statement, the excluded statement is admissible on cross or in rebuttal. “Denying the prosecution the use of ‘the traditional truth-testing devices of the adversary process’ is a high price to pay for vindication of the right to counsel at the prior stage.”

If the rule were any different, Scalia added, if the statements were absolutely excluded, there would be no extra deterrent effect. The odds that any given defendant will actually testify at trial are very small. The odds that he would then testify differently — knowing that the statement would be admissible for impeachment — are even smaller. So letting this come in for impeachment is not going to cause any cops to play games, and get excludable statements in the hopes of using them for impeachment later.

The Supreme Court this morning exemplified exactly what’s wrong with the death penalty in this country. In a clear effort to avoid a decision that would impose a death sentence, the Court made a nonsense ruling so it could extend the course of appeals — appeals that have already run for three decades. The Court further delayed an outcome, continuing the stress and injustice of uncertainty to the defendant, the victims, and the criminal justice system.

One Saturday afternoon in 1980, Gary Cone robbed a Memphis jewelry store of about $112,000 worth of trinkets. He led a police officer on a high-speed chase through town and into a residential neighborhood. Abandoning his car, he ran off on foot. He shot a police officer who pursued him, and a citizen who tried to stop him. Re-thinking his abandonment of the getaway car, he tried his hand at carjacking, tried to shoot the driver, but was out of ammo.

Cone ran and hid all that day and into the next morning. He then tried to force his way into an old lady’s apartment at gunpoint, but she refused to let him in. The highly-intelligent Vietnam War veteran was foiled again. But later that Sunday afternoon, he broke into the home of an elderly couple, Shipley and Cleopatra Todd, aged 93 and 79, and brutally beat them to death.

After hiding the bodies, ransacking their home, and shaving off his beard, he made his way to Florida. There, he robbed a drugstore, got arrested, and admitted to killing the Todds and shooting the police officer.

In 1982, he was convicted of the murders, after unsuccessfully arguing that he had been on drugs and suffered from post-traumatic stress, and thus lacked the necessary mens rea. He didn’t really present a lot of evidence to back that up. The jury found him guilty, found the requisite aggravating factors, and sentenced him to death.

In yet another bleak example of modern American capital punishment, Cone spent the next 27 years filing appeal after appeal, up to the Supreme Court and back again.

This morning, the Supreme Court ruled on his federal habeas claim. Cone was arguing that the government violated his Brady rights, by withholding evidence material to his mental state.

On direct review in state court, the Tennessee Supreme Court had affirmed the conviction and the death sentence. Cone then filed a petition claiming various violations, including Brady violations. While the petition was pending, he got to see the prosecutor’s case file, and amended his petition to add more detailed Brady claims. He claimed that his thin evidence at trial would have been bolstered by this stuff, had he seen it at the time.

The reviewing court denied the petition, on the grounds that the Brady claims had already been considered and denied. Cone then sought a writ of habeas corpus, seeking relief for the alleged Brady violation. The Sixth Circuit said no to the Brady claim, because the state decision was based on grounds that weren’t applicable in federal court.

Appeals then went back and forth on other matters. In 2001, the Circuit granted relief for ineffective assistance of counsel, but the Supreme Court reversed that in 2002. In 2004, the Circuit granted relief for the use of an unconstitutional aggravating factor, but the Supreme Court reversed that one also.

Back in the Sixth Circuit in 2007 on remand, Cone once again raised the Brady claim. The Circuit again said no, that the claim was procedurally barred, because Tennessee had relied on independent state grounds in its determination of the Brady claim. And in any event, the prosecutor’s files weren’t Brady material in the first place, because nothing in them would have “overcome the overwhelming evidence of Cone’s guilt” and “the persuasive testimony that Cone was not under the influence of drugs.”

On cert to the Supreme Court this time around, Cone argued that the prosecutor’s file contained witness statements and police reports that would have corroborated his insanity defense during the guilt phase, and would have mitigated the aggravating factors during the sentencing phase. He argued that the Tennessee court’s decision did not rest on grounds that precluded federal review, contrary to the Circuit’s finding.

In its decision this morning, written for the majority by Justice Stevens, the Supreme Court ruled in Cone v. Bell that Cone was right — the Tennessee court’s decision did not rest on grounds that precluded federal review. Nevertheless, Cone was still wrong, because the prosecution’s files were not Brady material — the withheld documents simply were not material to any defense based on his mental state.

If Stevens had stopped there, this would have been a unanimous decision.

Instead, however, Stevens screwed up. “While we agree that the withheld documents were not material to the question whether Cone committed murder with the requisite mental state,” he wrote, “the lower courts failed to adequately consider whether that same evidence was material to Cone’s sentence.”

Say what? It clearly wasn’t material to the issue of guilt, but the appellate courts were too hasty in saying it was not material for sentencing? Stevens is basically saying, the files weren’t Brady, because they weren’t material to the issue of his mental state. But on the other hand, they might have been material to the issue of his mental state, so we’re remanding for a do-over.

So, in all these years of considering this very issue on appeal, the Circuit got it right when it decided that the files simply weren’t material. But in all these years of considering this very issue, the Circuit acted too hastily in deciding that the files weren’t material.

That simply doesn’t make sense, and in his dissent (joined by Scalia), Thomas makes that exact point. Alito felt the same way, and dissented to that extent, but concurred with the rest of the decision.

Chief Justice Roberts felt the same way, but wasn’t moved strongly enough to dissent, so he merely wrote a concurring opinion voicing his concerns. Instead, “this is what we are left with,” he wrote: “a fact-specific determination, under the established legal standard, viewing the unique facts in favor of the defendant, that the Brady claim fails with respect to guilt, but might have merit as to sentencing. In light of all this, I see no reason to quarrel with the Court’s ruling on the Brady claim.

That’s just weak. He and the rest of the majority clearly punted the issue. There is no distinguishing difference between the guilt phase or the sentencing phase, when determining whether something was Brady or not. Either it’s material or it isn’t. The issue in both was whether Cone’s mental state was impaired, and the courts seem to agree that the files were immaterial to that issue.

It’s clear what’s really going on, of course: the majority didn’t want to suck it up and just deny the claim. To do so would be to impose a death sentence, and the Stevens majority doesn’t want to do that unless there’s no way out for them. But they found a way out here. Not a particularly meaningful one, but it was all they needed. So they weaseled out of it, and kicked it back to the Sixth Circuit to do their dirty work for them.

We predict that the Circuit will simply make the same finding again on remand, and spill some more ink to spell out that its finding applies to both the sentencing phase as well as the guilt phase. Then today’s majority will be able to feel a little better about themselves when they affirm, and sentence Cone to death.

But delaying this foregone conclusion is unjust. It’s exactly what’s wrong with capital punishment in this country. There is no deterrent effect, because there is no predictability as to whether capital punishment will be carried out, and any such punishment is too far off in the dim and distant future to be meaningful. There is clearly no rehabilitation or attempt to rehabilitate, as the alternative is just life in prison. There is no just retribution, as society does not gain anything from punishment that neither certain nor contemporaneous.

Until the courts can work out a fair way of resolving death-penalty appeals justly and swiftly, the death penalty will continue to be an inhumane sentence in this country. Inhumane not only to defendants, but to the families of their victims, and to the community at large.

We admit it: we like to skip to the Scalia dissent.

Not because we necessarily agree with his philosophy of jurisprudence. But because it’s a good bet to be an entertaining read. Whether he’s dissenting from an expansive activist or a fellow limited-role jurist, he’s good for a bit of snark while mercilessly pointing out flaws and internal inconsistencies in the other fellow’s opinion.

So when we saw that Alito, and not Scalia, wrote the dissent in this morning’s Corley v. United States decision on the exclusion of statements, we sighed a little and took in the majority opinion first.

Well, we learned our lesson. Alito can give good dissent.

At issue is 18 U.S.C. § 3501. The statute was passed by Congress back in the 60s, in an attempt to undo some of the aggressive jurisprudence of the Warren Court. Particularly, Congress was trying to nullify the Court’s perceived expansion of the Exclusionary Rule with respect to statements. Miranda made statements inadmissible if suspects weren’t advised of their rights before custodial interrogation, and McNabb and Mallory excluded confessions during extended detention prior to arraignment. §3501(a) tried to nullify Miranda by saying that, notwithstanding any warnings, if the statement was voluntary, then it was admissible. §3501(c) similarly said that custodial confessions weren’t automatically inadmissible because of delay, if they were voluntary. Congress flatly said that voluntary statements were going to be admissible.

Now, all this shows is that Congress didn’t understand Miranda or the McNabb-Mallory rule. At heart behind both rules is the concept of voluntariness. If someone voluntarily inculpated themselves, then the Court has never had a problem with admitting that statement into evidence. The only thing that the Court has ever had a problem with — no matter who was on the bench — is involuntary statements being used against people.

Seriously, the single policy that explains all of the Supreme Court’s jurisprudence on the exclusion of statement evidence is this: “We won’t allow the government to convict somebody by overriding that person’s free will.”

So if the defendant was forced to incriminate himself out of his own mouth, then we won’t let that in. We won’t let the government beat confessions out of suspects, and this is all of a piece.

By the same token, we have no problem with taking blood or DNA samples without the suspect’s permission, because we’re not forcing him to convict himself. We’re just taking already-existing physical evidence, not forcing the suspect to create evidence to be used against him.

Hence the rule of Miranda and its progeny: If a reasonable person wouldn’t feel free to leave, and he’s being quizzed by the government, then incriminating response is by definition involuntary. The only way the government can cure that is to make sure the suspect knew his rights against self-incrimination, and knowingly waived those rights.

And hence the rule of McNabb-Mallory: The longer you’re being held by the government without being informed of the charges against you, the less likely anything you say will be voluntary. At some point, your statement is going to be by definition involuntary, unless the government has taken some affirmative action to ensure it really was voluntary.

Given this, §3501 is really a dead letter. Oh, there have been those who argue that its effect is what Congress intended, the nullification of the case law (see, e.g., U.S. v. Dickerson, 166 F.3d 667 (4th Cir. 1999)). But all §3501 says is that, if a statement was really voluntary, then it is admissible. And that is precisely what the case law also says.

So we come to today’s case, Corley v. U.S. The decision was 5-4, split right down the (jurisprudentially) liberal/conservative line. Souter wrote for the majority, joined by Stevens, Kennedy, Ginsburg and Breyer. Alito fired off the dissent, joined by Roberts, Scalia and Thomas.

And Souter — whom we like immensely — messed it up. Of all Justices, he was the one we expected to really get it, and lay out the real policy and uphold the majesty and wisdom of the law. Instead, he made a hash of it.

All he had to do is say, “yes, §3501 means what it says. But it does not do what Congress meant. The plain language of the statute does not affect our case law in the slightest.” We are willing to bet money that Scalia would have joined the majority if he had said that. And he might have taken the others with him for a Roberts-pleasing unanimous decision.

But instead, Souter said §3501 meant what it said as to Miranda, but it did not mean what it said as to McNabb-Mallory. His internally-inconsistent, self-contradictory interpretation required 18 pages of justification. At the end, he concluded that Congress didn’t mean to nullify McNabb-Mallory while trying to nullify Miranda, and so a Mirandized confession is still excludable if made during an extensive pre-presentment delay.

Souter’s reasoning was unnecessarily convoluted, and required a patchwork of equally risible arguments to fill in the obvious gaps. In dissent, Alito seems to gleefully dissect each one in turn. You just know he was grinning like a fool while writing (or directing) some of these passages. Oh sure, he tries for a veneer of objectivity with phrases like “the Court cites no authority for a canon of interpretation that favors a ‘negative implication’ of this sort over clear and express statutory language.” But that can’t conceal the snark within. Although Scalia might have had more fun with the point that “although we normally presume that Congress means in a statute what it says there, the Court today concludes that §3501(a) does not mean what it says,” it’s obvious that Alito was enjoying himself too.

Interestingly, the dissent does not disagree with the majority’s result, but only with its analysis. We really do think that if Souter had thought it through, he could have had a unanimous opinion clearing up this misunderstood line of cases for posterity.

That’s okay, we just did it for you.

For 16 years, German police have been hunting a fiendish serial killer. Every time they have an unsolved crime, the DNA of an unknown woman has been found at the scene. This phantom killer baffled police with her ability to commit totally unrelated murders without any evidence (apart from traces of her DNA) tying them together.

And when we say “unrelated,” we mean it. The DNA was found on documents at an arson scene, a cop killing, and dozens of other kinds of murders unconnected by geography, motive, means or victim.

Dubbing her “the phantom of Heilbronn,” the cops focused at least 40 investigations in Germany and Austria on identifying this “woman without a face.” When her DNA was found at the scene of a murdered policewoman, a 300,000 (about $375,000) reward was offered for information leading to her arrest.

It turns out, however, that all those unrelated crime scenes DID have something in common, apart from the mystery woman’s DNA. But in all those 16 years, nobody put two and two together.

What did they have in common? The DNA kits used by the cops themselves.

Yup, the swabs used to collect the DNA samples were contaminated. A female worker at the manufacturer apparently wasn’t working under completely sterile conditions, and her DNA was getting on the Q-Tips. As usual, the evidence that made no sense was wrong, and the simplest explanation was the right one.

So the police spent 16 years thinking that her DNA was the DNA of the killer. And instead of focusing on evidence that would have solved these crimes, they followed a wild goose chase that has left nothing but injustice. DNA is the wonder evidence of our time, so when it pointed the way the cops jumped at that conclusion.

Yet another reason why DNA evidence isn’t necessarily as damning as people might think.

In October, we reported that functional magnetic resonance imaging (better known as fMRI) is being touted as an honest-to-goodness lie detector. Unlike a polygraph, which required interpretation of physical bodily reactions, an fMRI looks at real-time brain activity to see if brain areas associated with lying are activated during any given answer.

The issue, of course, was whether such evidence would be admissible in court. Polygraphs aren’t admissible (except in New Mexico) because they’re more art than science. But fMRI is all science, and brain scans are already widely admissible at sentencing. They are now de rigeur in capital cases, and the Supreme Court based its ruling precluding execution of adolescents on brain scan evidence.

When we wrote about it, the issue was purely hypothetical. Nobody had yet tried to introduce such evidence in court. But now, a court in San Diego is going to have to decide that very issue.

The case is a child protection hearing. The defendant is a parent accused of committing sexual abuse. Defense counsel is seeking to introduce fMRI evidence for the purpose of proving that the defendant’s claims of innocence were not lies.

If admitted, this will be the first time fMRI evidence will be used in an American court.

The fMRI in this case was performed by a San Diego company with the somewhat uninspiring name “No Lie MRI.” The company’s name isn’t so much an issue, however, as the actual reliability of these tests on an individual basis.

Although general regions are known to be associated with lying, logic, decision making, etc., their specific location in each individual varies. So some baseline analysis would be required for any person, so that his brain activity during questioning can be compared to a valid exemplar of his own actual brain.

fMRI basically measures oxygen levels in the brain’s blood vessels. When a part of the brain is being used, that part of the brain gets more blood. Studies have indicated that, when someone lies, more blood is sent to the ventrolateral area of the prefrontal cortex.

Only a few studies have been done on how accurate fMRI is at identifying specific lies, though their figures range from 76% to 90% accuracy. (For more info, see Daniel Langleben’s paper Detection of Deception with fMRI: Are we there yet? Mr. Langleben owns the technology licensed by No Lie MRI.) Ed Vul of MIT’s Kanwisher Lab told Wired.com that it’s too easy to make fMRI data inaccurate, because a defendant who knows what he’s doing can game the procedure too easily.

Of course, the big challenge to the defense in this case will be establishing that fMRI lie detection is generally accepted within the relevant scientific community. As with any other novel scientific evidence, if the relevant community is defined narrowly enough, it can come in. The trick would be in determining how narrow the relevant scientific community is in this case. If it includes researchers like Mr. Vul, for example, the defense is going to have a hard time. Even Mr. Langelben, who owns the technology used here, is on record saying that not enough clinical testing has been done to establish how reliable it really is.

We predict that the evidence will not be admitted. Down the road, sure, this stuff will come in on both sides. But right now it’s too new. Courts just don’t go out on a limb for truly novel evidence like this.

And besides, they’re trying to admit it to prove the truth of the defendant’s own statement. The issue is not whether he was lying when he declared that he believed himself to be innocent, however. The issue is whether he committed the acts of which he is accused. Whether he thinks he did or not isn’t really the point. It might be relevant at the sentencing phase of a criminal trial, but not at the fact-finding phase here.

“Google mistrials” are in the news again. Every few years, we hear about mistrials being declared because jurors were caught researching the facts online. It’s not a new phenomenon — there have always been jurors who felt the urge to find out for themselves what really happened — all that’s new is how easy the Internet makes it. And even Google mistrials have been happening for many years.

Jurors naturally want to investigate on their own. It’s normal. After all, the whole purpose of a jury is to arrive at an official version of the facts, jurors do take this job seriously, and they commonly feel hamstrung by rules of evidence that keep them from seeing the whole picture. Taking the initiative can be thought of as a means to achieving true justice. Such initiative is even the major plot device of that old classic “Twelve Angry Men,” commonly seen as a drama that epitomizes true justice.

The justice system, on the other hand, has evolved over the centuries to ensure justice in quite a different way. Instead of allowing trial juries to investigate the facts, the courts carefully limit the facts to which juries are exposed. Before being spoon-fed to the jurors, facts must first be sifted through rules of admissibility, to ensure that only relevant and reliable information is made available. Then both sides in the trial get to challenge, cross-examine and argue about that evidence. This testing by fire, even if intended to obfuscate rather than clarify the facts, is generally seen as serving the higher goal of a just result.

So unlike “Twelve Angry Men,” when a juror in real life goes out into the world beyond the courtroom, and finds evidence that was not presented at trial which could affect the outcome of the case, justice is deemed to have been frustrated. A mistrial is declared, and everyone has to do it over again. The judge, jury, court employees, lawyers, witnesses and parties will have wasted their time, effort and money.

But it used to take some effort to cause such mistrials, and so they were rare. Jurors may have WANTED to go out and do some research on their own, but few had the time and resources to match their inclination. Nowadays, however, everyone is a research specialist. In everyone’s pocket is a miniature Hitchhiker’s Guide to the Galaxy, a phone or PDA with full access to the Internet. Looking up individuals, events, photos, aerial images, detailed maps, weather, weapons, forensics, public records, and practically anything else is now fast, effortless and free.

There are no obstacles to such research, and so everyone does it. And they do it all the time. It’s not a here-and-there thing like visiting a library; it’s part of the habits of people’s daily lives. The simple fact is that it is something people do naturally and routinely throughout their day. Telling someone not to go online these days is as inane as telling them they can’t talk about their day with their spouses and best friends.

Beyond simple inanity, ensuring that jurors comply with a no-Googling rule is simply unworkable in real life. Access to the Internet is ubiquitous in modern life. It’s everywhere. Unless courts are willing to confiscate all wireless devices of any sort at the courthouse, and then sequester every jury at great expense to ensure that they don’t access the web after hours, then courts are simply not going to be able to prevent Googling from happening. Jurors are going to be instructed not to do it, they’re going to do it anyway in ever-increasing numbers, and so mistrials are going to happen in ever-increasing numbers.

It’s time for modern jurisprudence to catch up to modern reality. Independent juror research simply cannot be grounds for mistrial any more.

It’s not such a stretch, by the way. We already allow jurors to take into the jury room any common knowledge and common sense they already possess. In fact, we insist on it. All that would be required of the law would be a presumption that anything available on the net is common knowledge.

That’s a simple fix, and an intellectually honest one.

What would that mean? That would mean that lawyers would have to be a little more diligent in investigating their cases. They’re going to have to presume that anything on the Internet is common knowledge. So if that common knowledge is wrong, they’re first going to have to realize it’s out there, and then debunk it.

So what? That’s what any good lawyer does now, anyway. If there’s a common perception that happens to be a mis-perception, then effective counsel will do their best to educate the jury to at the very least minimize the effects of that misperception. We do this all the time, in all sorts of cases. Prosecutors try to nullify the perception that circumstantial evidence is somehow less reliable than direct evidence. Defense attorneys try to undo the perception that an eyewitness identification is as damning as it gets. There are tons of examples for every kind of case that goes to trial.

The risk, of course, is that by attempting to debunk an attitude, one may merely highlight it to a juror who wouldn’t have otherwise have thought it. That’s the same risk we take now. We try to minimize it during jury selection, if we can. And we judge the risks and take the course we judge to be best.

In short, the law needs to accommodate modern reality by treating data commonly available as if it people were commonly aware of it. The law may already do so, and the courts just haven’t gotten around to realizing it yet. It really may be nothing more than a simple matter of re-interpretation of a longstanding rule.

So no more Google mistrials, please. Efficiency would be improved, and justice would be served.