The Criminal Lawyer

In this Information Age, it is hard to grasp sometimes that everybody does not know everything. And yet it is so. It is common knowledge, for example, that dinosaur fossils are the bones of creatures that lived scores of millions of years ago, that terrorist hijackers flew planes into the World Trade Center and the Pentagon, and that eyewitness identification testimony is statistically as reliable as a ’78 Chevy. And yet there are tons of people who sincerely believe that fossils are just a few thousand years old, that the U.S. government conducted 9-11, and that an eyewitness I.D. is the be-all-and-end-all of Truth.

Actually, it’s not fair to lump the I.D. believers in with 9-11 conspiracy theorists, Genesis literalists, truthers and the like. The others are sort of fringe-y. But if you put 12 ordinary citizens in a jury box, of good intelligence and sound common sense, and the victim points dead at the defendant and says “there is no doubt in my mind, THAT is the man who raped me…” you can almost hear all twelve minds slamming shut. They’ve heard all they need to hear. So far as they’re concerned, this case is over.

This despite the fact that study after study after study reinforces the fact that eyewitness testimony sucks.

And innocent people go to jail — or worse — because of it.

So you can imagine how keen the legal world was to get the Supreme Court’s decision in Perry v. New Hampshire, which came down yesterday. Perry, identified by an eyewitness as someone she’d seen breaking into cars, argued that Due Process required a judicial hearing on the reliability of that testimony before it could be admitted at trial.

Which was the exact wrong thing to argue.

Due Process requires that the government makes sure that it does not do things that make its identification procedures unreliable. It does not require that a judge do the jury’s job. Particularly when that job — weighing the reliability of a given bit of testimony — is incredibly fact-specific.

And especially given all the evidence of all the various factors that go into making eyewitness testimony unreliable — racial differences, time lapse, focus of attention, lighting, familiarity, stress, presence of a weapon, etc. — what judge in his right mind is going to want to be the one deciding whether this particular eyewitness’s memory is good enough?

So it’s hardly any surprise that the Supreme Court balked at Perry’s Due Process argument. By a vote of 8-1 (former prosecutor Sotomayor as the lone dissenter, none better to know the power of the EW ID) the Supremes held that, unless law enforcement is alleged to have gotten the I.D. under unnecessarily suggestive circumstances, there’s no Due Process issue and certainly no reason for a pre-trial hearing on reliability.

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No, what Perry could have argued for is either (more…)

“Why didn’t you tell me that before?”

This is not something you want your lawyer to be asking you in the middle of trial.  Or worse yet, in the cells after you’ve lost your trial.  And yet it is a perpetual ostenato heard in every criminal courthouse.  The head-shaking lament of lawyers whose own clients deprived them of the very information that could have changed the outcome of the case.

It is only human nature, of course, to minimize one’s own culpability.  Each one of us is the hero in our own story, not the villain.  If bad things are happening to you, it’s not because you did something wrong, but because you are the victim of a misunderstanding, of a vindictive lying accuser, of an overzealous prosecutor.  People start rationalizing their conduct before it even happens.  It’s just the way our brains work.  When speaking to another human being about something that might get you in trouble, it takes an almost inhuman amount of trust to be completely frank.  Even when speaking to an ally.  Even when you know that this ally needs to understand what really happened before he can help.  The urge to shade the truth, to make things sound more innocent than they really are, is always there.

It’s a simple truth.  So only a foolish lawyer ignores it.

A wise lawyer with sound judgment — the kind you want defending you — is going to be skeptical of what you tell him.  No offense.  Whether it’s your first meeting or your fiftieth, his bullshit meter is going to be turned on.

That’s because what wins cases is preparation.  Knowing the facts (and applicable law) better than the other guy.  Knowing better what happened.  Not having a more innocent-sounding story.  Facts.

When your lawyer defends you, he assesses the data in front of him to see if there are any legal arguments that might help.  He analyzes the data to see what the actual risks and opportunities are.  He bases his strategies and arguments on that data.  At trial, he weaves his stories and persuades juries with that same data.  The more — and more accurate — the data, the more he has to work with, and the more he can do for you.

This is the case even if the truth is ugly.  In fact, especially when the truth is ugly.  The more (more…)

Everyone knows that eyewitness identifications are completely reliable — that is, you can count on them to be wrong.  (Everyone does know this, right?)  If the person being identified is a stranger, the chances of a correct I.D. are slim to none.  There are lots of reasons for this.  Eyewitnesses rarely have or take the time to study and memorize a person’s features.  People of one race are awful at identifying people of another race, largely because the parts of the face which differ from person to person are different from race to race — which is why people of another race often “all look alike,” because you’re looking for cues in parts of the face that don’t vary much in that other race.  And people just generally suck at remembering details consistently and accurately.

Still, sometimes an eyewitness description is all you’ve got.  And so what if the eyewitness didn’t see every detail of the face — at least they can describe the parts they did see.  Trained sketch artists take the partial descriptions provided by eyewitnesses, and using sophisticated software they can put together composite sketches that show what the bad guy probably looks like.

We’ve all seen them on the TV news, and various crime dramas would lead one to believe that they’re pretty useful.  And now with IdentiKit software, the details can be adjusted here and there until the witness goes “that’s him!”

But we never hear, after the fact, whether the drawing wound up being all that accurate.  There’s a good reason for this.  The odds of the drawing being accurate are so low, they are below statistical significance.  You’ve probably noticed this yourself, on the rare occasion when a police sketch has later been released with a photo of the culprit — the resemblance even then is usually pretty slim.

A thorough study of composite sketches by Charlie Frowd, of the University of Stirling in Scotland, had participants study a photograph of an individual for a full minute, then describe the face for a trained police sketch artist.  How well could people then recognize the faces in these sketches?  The recognition rate was as low as 3%.

Three percent.

MIT scientists Pawan Sinha, Benjamin Balas, Yuri Ortrovsky and Richard Russell have a great article here that describes problems with composite sketches and ways to make the software better.

The image above was taken from that article.  A trained and experienced IdentiKit officer was given actual photographs of celebrities with distinctly recognizable faces.  He was given all the time in the world — no pressures — and worked directly from the photos themselves instead of having to rely on another person’s descriptions.  And those sketches you see up there are the best the software could do.

Well, maybe the problem is with what the IdentiKit tries to do.  After all, it just works on individual features one at a time.  The eyes, nose, mouth, etc. are worked on in isolation.  Humans don’t look at features in isolation, though.  So there’s another kit out there called EvoFit, that’s more like a photo array that gets to evolve.  The witness is shown 72 random faces.  She picks out the six that most resemble the culprit.  The facial features of those six are then scrambled and recombined to make 72 new pictures.  The witness then picks out, again, the six who most resemble the culprit.  The process is repeated once more to get an image that pretty much matches what the witness saw in her mind.

Now, there are tons of problems with this method.  The suggestivity of showing pictures is pronounced — when witnesses choose photos from an array, they often choose not the one that closest resembles the culprit, but instead pick the one that looks different from the rest — and when a picture has been chosen, that image often replaces the image in the witness’ memory.  She now remembers that face as being the face of her attacker, even though it wasn’t.  This method of scrambling digital faces poses the same problems.

Still, it is more reliable than the IdentiKit.  Instead of a 3% recognition rate, the EvoKit attains a whopping 25% recognition rate.

One in four.

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People suck at identifying strangers.  Period.  And yet in-court eyewitness identifications are the nuclear bombs of trial.  The victim points at the defendant and says he’s the one what done it, and you can see the jurors’ minds turning off.  So far as they’re concerned, this trial’s over.  The defense lawyer’s got a lot of work to do, now, to overcome that.

What would be just and fair, of course, would be to allow some evidence of the unreliability of eyewitness identifications in general, and the reasons why IDs can be wrong, so that the defense can tie them to specific testimony by the eyewitness to show that she made the same mistakes.  Not asking the jury to make a logical fallacy that, because it happens a lot in general, it must have happened here as well.  But actually drawing the jury’s attention to specific reasons why this particular testimony is not trustworthy, supported by expert testimony on the unreliability of IDs.

Don’t hold your breath waiting for that to happen, though.

We wrote recently on our distaste for those on the defense side who persist in playing games.  It should go without saying that it is far worse for the prosecution to play games.  And yet it happens all the time.

Ideally, when the prosecution has done its job right, it’s going to be holding all the cards.  If those cards are good, there’s little reason not to show them early and convince the defense to fold.  It saves everyone the expense and burden of litigating and trying a case that ought to just plead out.

And if those cards aren’t so good, then fairness requires that they still be shown.  Simple due process requires that a criminal defendant — someone whose life, liberty, reputation and property the government intends to destroy — be told when the government has evidence that might help him defend himself.  If such evidence is in the government’s possession, it’s not realistic to believe that the defense would ever discover that evidence.  Law enforcement is rarely willing to share information with the defense.  And even with evidence from other sources, the defense never has anywhere near the resources and ability of the government to discover that evidence.  Anyone who thinks the two sides are fairly matched in this regard either has no experience, or no active brain cells.

So that’s why we have the Brady rule.  Prosecutors are supposed to give the defense any evidence possessed by the government that might help the defense at trial or at sentencing.  It’s a great rule, but the problem is that prosecutors often have a hard time following it.  And they get away with it plenty, because it’s not like the defense was ever going to learn of the existence of that evidence.  And they have absolute immunity from civil suit for their Brady violations.

What happens often enough, unfortunately, is that prosecutors try to game the rule.  Any (more…)

Back in the infancy of this blog, we wrote a piece called “No More Google Mistrials: A proposal for courts to adapt to modern life.”  In it, we lamented that our jurisprudence hadn’t caught up with the realities of the internet age, and that mistrials were still being called whenever jurors got caught looking stuff up online.  We pointed out that it wasn’t exactly a new phenomenon — people had been Googling stuff for years — so it was high time the courts got caught up.

Amazingly, this post seems to have escaped the notice of the “they” who make up the rules of how a trial is to proceed.  Heavens forfend, but it might even be possible that a number of judges may never have even heard mention of it.  Stranger things have happened, though we can’t think of any offhand.

Be that as it may, the internet is forever, and it seems to get read from time to time.  Mainly by members of the press, it appears, and usually right after yet another Google mistrial has been declared.  That’s when we seem to field calls about it, anyway.

And that’s what happened earlier this week.  We were on our way to handle a case out in the rust belt, and were driving past Wilkes-Barre, Pennsylvania (a town near and dear to our heart ever since we landed a small plane there in a freakishly windy day back in our teens, a simple refueling that wound up involving the National Guard, a mistaken identity, extremely obliging air traffic controllers, and an absurd amount of adrenaline — though that’s a story for another time).  When we happened to get a call from a reporter right there in Wilkes-Barre, calling to discuss a Google mistrial that had just happened there.  (You can read the resulting article here.)

We basically said the same things in the interview as we’d written a couple of years ago, which is news enough right there.  Our opinions and positions do tend to evolve as we learn new facts or new ways of looking at old facts, so it was a nice surprise to read our old blog post for the first time since we’d written it and find that it’s pretty much what we’d just said.

But on second thought, we actually said some new stuff in this interview.  Some new policy considerations came to mind.  The reporter gets the credit for this, because unlike most reporters who just want a quick sound bite so they can get back to banging out their story by deadline, this reporter debated us.  She flatly challenged our position, saying that few if any would agree with us, and demanding that we defend it.  It was a pretty skillful interview.  Pity none of the good stuff made it into the article.  We blame the editors, of course.

So for the benefit of those who have bothered to read this far, here’s the good stuff:

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We don’t want jurors going out and (more…)

Plenty of us are familiar with the basic skills of cross-examination: Always lead, Don’t ask that one last question that lets the witness deny the conclusion you want to draw, Don’t ask a question if you’re not pretty sure of the answer, Don’t let the witness explain, Take it one fact at a time, Have a goal, etc.  They’re good rules to follow in pretty much every case.  But they’re not really a blueprint to follow for crafting a useful cross.  Every case is different, and each witness requires a different strategy.

One of the most challenging types of cross-examination comes in the he-said/she-said situation.  That’s not just domestic disputes, but any situation where there are only two people who really know what happened, and one of them is testifying against you.  Maybe it’s a purported victim, telling a story about a date rape that your client insists was consensual.  Maybe you’re a prosecutor in an undercover buy-and-bust, and the defendant is testifying to a story completely different from what your undercover is saying.  It happens in all kinds of cases, to all kinds of lawyers.

The he-said/she-said is especially tough when the other side’s witness is telling a cogent story that makes sense on its face.  Taken at face value, it rings true — though that doesn’t mean it is true.  A false story can be concocted out of pretty much any factual situation, and a lie that fits a juror’s worldview can be more believable than the truth.  A lying witness has lived just like anyone else, and has just as many experiences to test the believability of their stories against.  By the time the witness is testifying, there’s been plenty of opportunity to hone and perfect that story.  (And, of course, they might just be the one telling the truth, or at least the version closest to it.)  It’s hard to even prepare for such a cross.

If all you’ve got to challenge them with is your own side of the story, you’re not going to have a very effective cross-examination.  Q: “Are you telling this jury that my client’s story is wrong?” A: “Yup” — that’s not how to win a case.  But lots of the time, that is all you’ve got.  What can you do?

Well, when all else fails, there are three simple steps to a basic but effective cross-examination here.  When all else fails, and you’ve got nothing else to go with, you can always do these three things.  It may not guarantee you a victory, but if you do these three things, you will have at the very least done a workmanlike job of it.  And often enough, it gets results.

STEP 1: LOCK IN THE STORY

The first thing you do is (more…)

When we first moved to NYC in 1997, we thought we knew what racial tension was. After all, we’d grown up in various parts of the South and out West, and had seen and heard quite a lot of invidious prejudice. But we hadn’t seen anything, by comparison. We’d seen dislike and resentment out there, but the vitriolic race relations of the 50s and 60s had died down by our childhood in the 70s and 80s. We weren’t prepared at all for the outright hatred various groups expressed for each other in the grand metropolis. That first year here in the Manhattan DA’s office was an eye-opener. The city, especially the outer boroughs, seemed less like a melting pot than a petri dish, with virulent strains of hatred all fighting each other. Many working-class whites routinely used epithets one almost never heard in the South any more, and openly despised black people. Lots of black people hated white people right back, and seemed to have a bizarre animus towards jewish people, who we’d always thought of as champions of civil rights. African immigrants hated African-Americans, who they saw as lazy and as giving them a bad name. Every ethnic group seemed to have a derogatory name that everyone else used.

And this internecine feuding was still turning to violence in the ’90s. We’d never heard about the Howard Beach or Bensonhurst dramas of the late ‘80s, but here in the city that tension was still high. Al Sharpton hadn’t yet faded into irrelevance, and it seemed like he and his protestors spent half their time marching in circles somewhere or other. Right before we started at the DA’s office, the Abner Louima case happened, leading not only to renewed distrust of the NYPD, but even more racial tension. And just when that started to die down, the Amadou Diallo shooting flared it up again.

It was shocking to us. But to our friends who’d grown up here, it was just normal background. It was just the way things were.

So that’s what the culture was like in 1996, when a fight between some Italian men and a black man over a parking spot turned violent, the black man swung a baseball bat at an older Italian man, whose son — an off-duty cop — shot the black man to death.

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On October 3, 1996, in the suburb of Dobbs Ferry just north of the city, a black man named Charles Campbell parked his Corvette at a deli, in a spot reserved for deli customers. But he went into a different store across the street. When he came back, he saw the owner of the deli placing a sticker on the Corvette. Campbell got angry and started a fight. The deli owner, his son Richard DiGuglielmo (the off-duty cop), and a third man (Robert Errico, the cop’s brother-in-law) wound up fighting with Campbell.

The fight ended, and Campbell walked back to his Corvette. During the fight, his shirt had come off, and the deli owner brought it over to him while his son and the other man went back towards the deli. But then Campbell opened the back of the Corvette, grabbed a metal baseball bat, and kneecapped the old man with (more…)

The Washington Post reports that the Obama administration wants Congress to change the Miranda rule, so that in terrorism cases law enforcement will be able to interrogate longer before having to give suspected terrorists their Miranda warnings.

This is stupid, and unnecessary.

The general idea is to expand the “public safety exception” to the rule. The way that exception works, cops don’t have to Mirandize someone when there’s an immediate danger, and they’re trying to get information so they can deal with it right away. The second the threat stops being imminent, the exception no longer applies.

Attorney General Eric Holder now says that this isn’t enough in terrorism cases, because it doesn’t give investigators enough leeway. Last week’s Times Square bombing suspect was questioned for three or four whole hours before being Mirandized, and last Christmas’ underwear bomber was questioned for (egads!) nearly fifty minutes before the warnings were given. And these delays, Holder says, are already “stretching the traditional limits of how long suspects may be questioned.”

The Obama administration wants to keep terrorism suspects in the civilian criminal justice system, rather than putting them in the military system or designating them as enemy combatants. The Miranda rule is a cornerstone of the civilian criminal justice system, precluding the use at trial of a defendant’s statements made in response to questioning while in custody, unless first informed of the right to remain silent and to a lawyer, and then waiving those rights before speaking. So if the administration is going to keep terrorists in the civilian system, but still wants to get useful intelligence, they’re going to need time to interrogate first before the defendant gets Mirandized and shuts up. That’s what Holder’s saying, anyway.

But that’s complete bullshit, and anyone with any actual experience in the criminal justice system knows it.

First of all, nobody — and we mean nobody — shuts up just because (more…)

We’ve written about the lie-detector uses of fMRI exams before (see here and here).

Now it looks like Brooklyn attorney David Zevin is trying to get it introduced for the first time in a real life court case. (The previous attempt, aimed at using it during sentencing in a San Diego case, was later withdrawn.) It’s an employer-retaliation case, which has devolved into a “he-said/she-said stalemate.” Zevin’s client says she stopped getting good assignments after she complained about sexual harassment. A co-worker says he heard the supervisor give that order, and the supervisor says he never did. So at Zevin’s request, the co-worker underwent an fMRI to see if he’s telling the truth when he says he heard that order.

Needless to say, there is opposition to letting this kind of evidence come in. There’s a pretty good discussion of the whole thing, believe it or not, over at Wired.

(H/T Neatorama)

[P.S. - We were almost about to type something like "We find ourselves strangely attracted to these kinds of stories. But we understand if you may be repulsed." Fortunately, we have refrained from doing anything like that. You're welcome.]

Over the past couple of days, the news has been filled with stories about using microbes to identify suspects. Everyone has all kinds of bacteria all over their bodies, of course, and whenever you touch something you leave a smudge of your bacteria behind. On Monday, researchers at CU-Boulder published a study where they swabbed computer keyboards, tested the DNA of the bacteria they found, and saw that those bacteria’s DNA more closely matched the bacteria on the computer users’ skin than the bacteria on other people’s skin.

That’s all the study found. The bacteria on your keyboard have DNA that more closely matches the DNA in the bacteria on your fingers, than that of bacteria on other people’s fingers. Frankly, although that’s a nifty result and the scientists deserve to be praised for their work, it’s really a very modest finding. Not exactly earth-shaking.

But as usual, the media took this modest finding and blew it way out of proportion. The study’s authors insist that the project “is still in its preliminary stages.” The media make it sound like we’ll be seeing this stuff in court before we know it. The fact is that using microbial DNA to link a suspect to a crime scene is not going to be a reality any time soon, if ever.

For one thing, there is as yet no reason to conclude that your particular bacteria are as unique as your fingerprints or your personal DNA. Bacteria do not use sexual reproduction, after all, and so their DNA is less diverse than human DNA. The uniqueness of your bacteria is very much an open question.

We don’t even have a baseline of what bacteria are even normal to find on human bodies. A single person will have a huge variety of different microbial populations on different parts of his skin — the microbial mix on his fingertips is not the same as the mix on his nose or his toes. All the various types of bacteria people can have will need to be isolated, all the different DNA each kind of bacterium can have will need to be sequenced, all the various combinations will have to be analyzed, and a massive amount of comparisons will have to be made.

In other words, there will need to be many more studies, based on way more data, plus some pretty robust statistical analyses of large populations, before any scientist can reach the same conclusions as those you’ve been reading in the news. That’s going to take a very long time, even with the accelerating advances in DNA sequencing technology.

Still, it really is an intriguing idea. After all, a perpetrator may not leave behind any blood, sweat or tears. Fingerprints may not be obtainable from fabric or wiped surfaces. But he may still leave behind a smudge of (more…)

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 (more…)

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 (more…)

“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 (more…)

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?