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 (1) a rebuttable presumption, as a rule of evidence, that eyewitness testimony is inadmissible; or (2) allowing defendants to provide jurors with all the reasons why eyewitness testimony is not as reliable as they might think.

The first option is, frankly, stupid. But it’s the logical conclusion from the givens presented in his argument and those of the various amici, that eyewitness testimony is about as per se unreliable as it gets. If we can be forgiven a straw man here, it’s akin to the proscription against most hearsay. Hearsay is not permitted unless it’s deemed exceptionally reliable. So why not have the same rule for eyewitness testimony? Because hearsay is not prohibited because of its unreliability. It is prohibited because it cannot be tested, cross-examined, challenged. It’s a confrontation issue, not a reliability issue. Hearsay that is allowed comes in because it is so reliable that confrontation just isn’t an issue (in theory). Evidence is not precluded because it is unreliable. If something is unreliable, it is up to the other side to make sure the jury sees how unreliable it is.

As Justice Scalia implied during oral argument, unreliable eyewitness testimony is no different from any other unreliable evidence. But in practice, it is treated very differently. Sure, a judge might let the defense attorney cross-examine the witness on the lighting conditions, whether she had a gun in her face, and whatnot. And maybe the judge will let him make common-sense arguments to the jury in his closing about why that identification was wrong. But few if any will allow the defense to put on expert evidence demonstrating why this particular testimony might be wrong.

Eyewitness testimony is almost unique in this regard. Any other evidence the government might put on, the defense gets to put on its own evidence of why the government’s was wrong. Their expert says the stolen trade secret was worth a billion dollars? Your expert can testify why it was worth $12.98. Their witness says the bullet was fired from the apartment across the street? Your expert can show that it came from down the block and was deflected on striking the window. But if their witness testifies that she recognizes your client as the guy what done it, can you put on an expert to show that people of her race distinguish faces by looking at features that aren’t all that variable in people of the defendant’s race? Or that almost nobody with a gun shoved in their face in a dark alley for five seconds is going to form a clear memory of what the shover’s face looked like? Or that now, three years later, after countless retellings and waking nightmares and reassessments, the witness’s memory is nowhere near as accurate as it seems?

In most states, the answer is No. It’s either prohibited, or it’s up to the discretion of a trial judge, who’s likely to say no. (And the usual reason for prohibiting such testimony, irony of ironies, is that it’s such common knowledge that expert testimony is unnecessary.)

What Perry should have argued for, then, is to do exactly what Scalia suggested: treat eyewitness testimony like any other kind of testimony. Give defendants a chance to pry open those minds that snapped shut during the in-court I.D. Give defendants a chance to confront the evidence against them in a meaningful manner. When everyone in the world except for jurors, apparently, knows that eyewitness memory is godawful, give defendants the chance to educate them, at least to the extent that it applies to that particular case. While you’re at it, let jurors be instructed on factors affecting reliability if you like (as suggested by the majority opinion), but if you believe jury instructions make a difference one way or the other…

It’s not a Due Process issue. It’s a Confrontation issue. Allowing the defense to confront eyewitnesses and challenge their presumed accuracy is the issue. It’s not about shifting the fact-finding role to a pre-trial hearing, to assess things beyond the government’s process. Perry’s argument strikes us as not only stupid, but a waste of a perfectly good opportunity to have made some progress in this area. As it is, we may now be stuck in the status quo a few years longer than we might have been.

Thanks a lot.

“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 your lawyer knows about what really happened, the more he can help you out of that ugly situation.  The more legal issues he might be able to spot.  The more strategies he might be able to pursue.  The better he can react and protect against testimony against you.  But he can’t help you if the data you’re giving him is bad.

Good lawyers explain this to their clients.  Sometimes repeatedly.  We’re not trying to impugn your honor.  We’re trying to make sure our decisions are based on the best information.  We want our decisions to be the right ones.  You give us messed up data, and you risk messing up your outcome.

You don’t want to tell your lawyer about the incriminating-sounding email that you know you wrote, convinced that nobody will ever see it or decipher it?  Guess what: the government is going to see it, and use it against you.  If your lawyer knows about it, he can deal with it.  Maybe it’s really not so incriminating.  Maybe a strategy can be carried out to minimize its harmful effect.  Maybe legal arguments can be raised to keep it out.  Ditto for Facebook posts, Twitter tweets, text messages etc.  It’s out there.  Don’t hide it from your lawyer, the one person who can do something about it.  (It will also save you a bundle if your lawyer doesn’t have to wade through your whole online history to find it himself.)

You don’t want to tell your lawyer about the way your drug deal really went down?  Too bad, you had a great suppression issue.  Your lawyer is getting paid the big bucks because he’s trained and experienced enough to spot those issues.  You might have had the case thrown out, and instead you’re taking a plea to spend the next few years in prison.

You don’t want to tell your lawyer how bad your codefendant really behaved, because it might make you look more guilty by association, or because of some (laudable) loyalty?  Too bad, you could have gotten your case severed.  You might have won at trial by pointing the finger at someone else whose conduct was worse, instead of going down with him (or even instead of him — juries do crazy things like that).  Oh, you didn’t know?  Of course you didn’t know.  You’re not the one who went to law school and spent years making these kinds of arguments.

For anything you can think of, which you’d rather not tell your lawyer about, there are probably plenty of reasons why it is precisely what you need to tell him.

You want your lawyer to give you the best defense he can.  You want him to make the best arguments and the soundest judgment calls.  He can only do that with the most accurate data.  So give it to him.

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Still, that takes a heck of a lot of trust.  It is almost a leap of faith.  Part of the lawyer’s job is earning that trust.

It has to be done quickly, in criminal law.  We don’t have years to develop a relationship and get to know one another.  Often, we only have minutes or hours between the holding cell and the arraignment judge.  So good lawyers earn that trust by being trustworthy.  Telling it straight.  Knowing what the heck we’re talking about.  Explaining what’s happening.

That’s really all it takes: telling it straight, knowing what you’re talking about, and easing the confusion a bit.  People don’t trust you if you’re just talking about yourself, or making grand pronouncements, or if you’re only asking questions.  Take the time to answer a few, and you’re on your way.

After that first hairy meeting, good lawyers keep earning that trust, by continuing to be frank and knowledgeable.  Even though the answers might not be what the client would like to hear, you’re telling him what he wants to hear to maintain trust.

Over the years, a fair number of clients came to us after discharging their original lawyers, in whom they had lost trust.  Sometimes it’s because of a lack of necessary knowledge and judgment; often it’s from a feeling of a lack of candor.  Although “he didn’t return my calls” may be the most common complaint lodged against lawyers, it hasn’t been a reason cited by those who left one lawyer and came to us.  ”I couldn’t trust him any more” — to handle the case, or just in general — is the reason we hear most.

So yes, we want our clients to be straight with us.  But usually that only happens if we are straight with them first.

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 game-playing by a prosecutor is abhorrent, beyond unethical, as it abuses the overwhelming power of the government.  But gaming the very rule intended to prevent such game-playing is perverse.

How do they do it?  One simple way is to just not hand it over, secure in the expectation that the defense won’t ever find out.  The prosecutor can justify this by claiming it wasn’t really Brady material.  Perhaps they spin it as something that isn’t really helpful to the defense, as if their perspective is the only correct one.  Perhaps they spin it as just discovery-type stuff, which unfortunately is not discoverable at this time, if ever.  Or they can just cross their fingers and hope nobody ever gets wise.

Another way to game the rule is to claim ignorance.  There may in fact be exculpatory evidence, but law enforcement never let the prosecutor know of it, and the prosecutor didn’t try all that hard to look for it, if at all.  That’s no excuse — law enforcement is the government, and what it knows is imputed to the prosecution — but the prosecutor’s failure to obtain the information keeps it out of the defense’s hands.

Another way to game the rule is to rely on an office’s “open-file discovery” policy to make the defense think they’ve received everything they’re entitled to, when in fact the critical evidence was either withheld, knowingly excluded from the prosecution’s file, otherwise not made part of the file, or deemed “not discoverable.”  This game involves a level of deception, essentially lying to the defense that they’ve been given everything.

An “open-file discovery” policy can also be used to game Brady by just dumping a warehouse full of documents on the defense, without highlighting where the potentially exculpatory evidence might be found.  The closer in time to trial this happens, the worse it is.  But it’s intellectually dishonest for the prosecution to claim “we gave it to them, it’s not our fault they didn’t spot it.”

A particularly nasty game gets played when the defense has reason to believe the evidence is out there, but for some reason — such as when it’s possessed by the police — the defense isn’t able to get the specifics.  So the defense notifies the prosecution, and the prosecution claims not to have a Brady obligation, because the defense already knows about the information.  This also happens when the prosecution tells defense counsel that the defendant was there, so go ask him what happened.  That’s not the rule.  If the defense actually possesses the evidence (or could reasonably get it), then there’s no need for the prosecution to provide a second copy.  But anything short of that imposes an affirmative duty on the prosecution to collect and share that evidence.  Prosecutors like to hide in the penumbra of what a defendant might, with reasonable diligence, discover on his own.  But that’s avoiding a constitutional duty, not complying with it.

There are any number of other games that get played — like all the procedural obstacles that get thrown in the way of post-conviction attempts to establish actual innocence — but these are all examples we’ve come across in our own experience.  Suffice it to say, prosecutors are playing games with people’s lives all the time.

So it was with some cautious optimism that we saw the resolution that the American Bar Association adopted today, basically telling courts to devise detailed laundry lists of things that count as Brady material in their courthouse, and to provide them to prosecutors and defense counsel in the cases that come before them.  If adopted, this practice would make it at least more difficult for prosecutors to claim ignorance of material that could have existed.  And it would make it easier for defense attorneys to spot particular bits of police paperwork and other kinds of evidence that they might not have known to ask for, if not disclosed.  It would help the hard-working defense lawyer to root out the Brady that might be there, and it would help the ethical prosecutor collect such material that they might not otherwise have obtained.

Here’s a link to the resolution, and to the ABA Journal’s report, and we’ll paste the full text here:

RESOLVED, That the American Bar Association urges federal, state, territorial, tribal, and local courts  to adopt a procedure whereby  a criminal trial court shall, at a reasonable time prior to a criminal trial, disseminate to the prosecution and defense a written checklist delineating in detail the general disclosure obligations of the prosecution under Brady  v. Maryland, 373 U.S. 83 (1963), and its  progeny  and applicable ethical standards.

FURTHER RESOLVED, That the American Bar Association urges  federal, state, territorial, tribal, and local courts in implementing the above procedure to require a criminal trial court to create a standing committee of local prosecutors and criminal defense attorneys to assist the court in formulating and updating the written checklist delineating in detail the prosecution’s general disclosure obligations.

FURTHER RESOLVED, That any omissions or deficiencies in the written checklist provided by the court should not relieve either the prosecutor or defense counsel of their legal and ethical responsibilities with respect to providing and seeking disclosures.

Now let’s see if it has any effect.

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 gathering evidence that wasn’t presented at trial.  The trial is a tool for testing evidence, in order to determine whether the government has proven its case or not.  The burden is on the state to do the proving.  If the state doesn’t do its job, then the state doesn’t get to take away the defendant’s life, freedom, or money.  The state puts on its evidence, and the defense gets to cross-examine it.  The evidence is only admissible in the first place if it meets certain requisites of basic reliability.  Then the defense cross-examination is there to test that reliability and credibility even further.  For jurors to go out and gather evidence on their own defeats the whole purpose of a trial.  The evidence they gather is not subjected to any evidentiary rules, and is not tested by any cross-examination.  It may be perfectly unreliable, it may be less than credible.  But even if it is perfectly truthful it’s still wrong, because the state has the burden, not the jurors.

Remember, in a criminal trial, the jury’s job is not to figure out what happened.  It is not.  The jury’s job is to determine whether the prosecution met its burden, and nothing else.  It’s perfectly formulaic: if the prosecution proved elements A B & C beyond a reasonable doubt, then the defendant is guilty of crime X.  If the prosecution failed to prove A B or C beyond a reasonable doubt, then the defendant is not guilty.  It has nothing to do with whether or not the defendant committed the crime.  It’s only about whether the prosecution could prove it.

If the jurors are out there gathering additional evidence, they’re missing the whole point of their function.  They’re trying to figure out what the facts of this case really are, acting as their own witnesses, instead of assessing whether the state did its job right.  Might as well not bother having a trial, if that’s going to be happening.

But gathering evidence is different from gathering general knowledge.

Jurors should not be allowed to investigate whether person Z did act X at location C.  But there’s nothing wrong with jurors knowing on their own that location C happens to be at the corner of 23rd and Elm.  That’s just basic background knowledge.

Likewise, we’d have no problem with a juror, who happens to be a doctor, knowing that the word “ecchymosis” refers to a kind of bruise where blood leaks under the epidermis.  We’d have no problem with jurors understanding that clouds are big fluffy white things that hang in the sky and sometimes bring rain.  We’d have no problem with jurors knowing the meaning of the phrase “ordered a pizza.”  It’s all just background knowledge.

Where we go wrong is when a non-doctor juror might not have known what “ecchymosis” means.  The juror might, or might not.  But most people probably don’t.  What now?

The rule has always been that the definition has to come out on the stand, subject to the same evidentiary rules of reliability and credibility as apply to actual evidence.  We’re not talking about evidence, but mere general information, but jurors can’t get that information unless it’s treated like evidence.  If they already know the information, fine.  But they can’t go learning it on their own.  If they didn’t already know it, they have to get the information from a witness.

Before 2001 or so, this wasn’t such a bad rule.  Most jurors would have to go significantly out of their way to look up information they didn’t already have.  Specialized dictionaries weren’t commonly available, even at many public libraries.  The internet hadn’t yet evolved to a point where one could find accurate information on pretty much anything.  The internet’s information was still pretty spotty back then.  Books were still the way to go.  And even if one could find a resource in a library, it was time-consuming and you sort of had to know what you were looking for to begin with.  It was more akin to investigating for evidence than relying on general common background information.

But once the internet really took off, it quickly became second-nature for the vast majority of people to use it to look stuff up.  As dial-up modems gave way to cable and T1 connections, and as wireless internet evolved to a handheld browser in practically every cell phone, looking stuff up became essentially costless, instantaneous, and ubiquitous.  As the scope and accuracy of the resources online grew and grew, the accuracy and reliability of the information out there became just as good as that available to specialists.

Being able to look up information — even specialized information — is now as second-nature as breathing to a large chunk of the population.  It’s only going to get more so.

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Again, this is not the same thing as looking up evidence that the government has to prove.  The government does not have to prove that a detached retina is what happens when the retina separates from the back of the eyeball, and that it can be caused by such things as X Y or Z.  The government has to prove that the defendant injured the victim and caused the victim’s retina to detach.

So if a juror goes online and starts reading news accounts detailing facts about how the defendant injured the victim, and how that injury caused that victim’s retina to become detached?  Well, that’s flatly wrong.  Not allowed.  Defeats the purpose.

But if a juror goes online to find out what the phrase “detached retina” means, what kinds of things are known to cause it, and stuff like that?  That’s just background knowledge.  There’s nothing wrong with it.

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When we wrote that original article a couple of years ago, we said that the rule ought to be “data that is commonly available is treated as if it were common knowledge.”

That’s fine, but needs to be limited.  Data that is evidentiary can and must be precluded from independent juror investigation.  But anything that is not a specific fact about what this defendant did?  That’s not evidence.  It’s information.  And jurors should be allowed to look it up.

They’re going to anyway.  It’s as natural as breathing.  It’s an unthinking, automatic response.  As we told the reporter, these days everyone is a researcher.  You don’t know a fact, you look it up.  Instantly.  You’ve learned to assess the reliable sources and ignore the gossip and noise.

That’s what we expect jurors to be able to do at trial, when evaluating evidence.

It’s called “common sense.”

It’s time for the courts to start using it.

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 get a lock on the witness’s own testimony.  On direct, you’ll want to take copious notes, with your thoughts

and stars and smiley faces or whatever on the side, whatever works for you.  Now, on cross, you’re going to walk that witness through everything they just said.

Don’t add anything new.  Don’t explore a single thing.  Just Q: “Is it your story that…” A: “Yes.” Q: “And you’re telling us that…” A: “Yes.”  etc.

It’s good to use characterizing words like “story” as opposed to “testimony,” to highlight that this is not fact, but merely the witness’s concoction.  Don’t overdo it, though.  But there’s no reason why your questions should ever give credence to anything the witness has said.

What you’re doing here is locking the witness into their story, so they cannot wiggle out of it later on.  They’ll have stated each thing as fact, twice, before this same jury.

You’re doing that because the goal of this cross-examination is to do a little lawyerly jiu-jitsu.  You’re taking the inherent weakness of the he-said/she-said situation, and making it work for you.  You’ve got two competing versions of what happened.  So it’s all going to come down to credibility.  Who is the jury going to believe more?  Your cross-examination here is designed to give that jury every reason not to believe that witness.

So lock them into their story.  You don’t want them to be able to change it later, or say they were mistaken.  The witness will almost always let you do this to them.  And because they don’t know where you’re going with this — especially for the ones who were making it up — it can start to throw them off balance a little.  If that happens, great.  Keep them that way.

STEP 2: ATTACK THEIR CREDIBILITY

So far, you probably didn’t need to be on the attack.  You may well have chosen to be perfectly amiable, if only to lure the witness into a false sense of security.  And you may choose to remain amiable, whatever works.  But now the witness is definitely going to sense that things have changed, because now you’re going to be attacking their credibility.

You may not have a lot to work with.  If you’re a prosecutor, all you know about the witness may be what’s on their rap sheet.  If you’re a defense attorney, you may know even less about the witness.  It doesn’t matter, though.  Use what you’ve got.  Anything from the past that the judge will let you use, use it.  No need to get emotional about it — just a matter-of-fact recitation of the fact, followed by a “yes” from the witness, is all you need.  All you’re trying to do is put the germ of a thought in the jury’s heads.  All you want here is for the jury to start thinking hey, there’s more than meets the eye here.  Get them ready to at least be receptive to the idea that this person might not be the most honorable one they’ve seen.

Because once this background has been attacked, and you’ve raised the possibility that this person might not have been completely honorable in the past, you now want to get the jury considering that perhaps this witness wasn’t being completely straight with them here in the present.

If you’re lucky, the witness’s story has an obvious hole in it, or an internal inconsistency.  It happens, so make sure you’re listening for it on direct.  If you’ve spotted a glaring problem like this, now is the time to pounce on it.  Go to it.  You’ve already gotten the witness to reaffirm the very statements at issue, so your work here should be fairly straightforward.  Just don’t, do not, ask the witness to explain.  Because they will.  Don’t ask rhetorical questions.  Don’t get cute.  That just gives the witness a chance to repair the problem.  (And often enough, it’ll be something you don’t want to go into here, but would rather save for closing argument.  Use your own judgment.)

But you’re not always going to be so lucky.  You’re going to have to work at finding inconsistencies.  Fortunately, there are ways of doing it.

As we’re just giving the rudimentary when-all-else-fails steps here, the rudimentary when-all-else-fails method is to break down the conclusions.

Almost every fact in a given witness’s testimony is really a conclusion.  ”We left at 9 p.m.” is not a fact, but a conclusion.  How does the witness know they left at 9?  ”I looked at a clock as we left.”  That’s still a conclusion.  Where was the clock?  ”It was in the hall.”  Still a conclusion.  On the left or on the right?  ”It was on the right.”  Digital or analog?  ”It had hands.”  How long did you look at it?  ”A few seconds.”  Where were the hands pointing?  ”The big hand was on the nine, and the little hand was on the twelve.”  Exactly? “It may have been a little off.”  One minute off?  ”Sure.”  Two minutes off? “Maybe.”  Three minutes off?  ”I don’t know.”  You were walking out side by side, you said?  ”Yes.”  And he was on your left, you said?  ”Yes.”  So you turned your head away from him to look at the clock as you left?  ”Yes.”

Depending on the rest of the facts, there’s plenty of closing ammunition in there.  They were so sure of the time on direct, but now they aren’t, and maybe every minute counts in this case or maybe it doesn’t, but they’re not so sure any more.  They looked away from their companion for a good few seconds to make a note of the time, but who does that, and if there’s no testimony about any good reason for doing so then it might not ring true.

Similarly, what about a police officer’s testimony that, when he encountered the defendant in the building lobby, he saw the defendant drop that bag of heroin he’s now charged with possessing?  Seems like a straightforward fact.  But it’s really a conclusion.  Where was the defendant standing?  ”Next to the staircase.”  Where were his hands when you first saw him?  ”In his pockets.”  What hand do you say he dropped the bag with?  ”His right hand.”  Did you see his right hand come out of the pocket?  ”Yes.”  It was closed, right?  ”Yes.”  What did he do with his hand?  ”He put his hand behind the railing and dropped the bag.”  His hand was behind the railing?  ”Yes.”  The railing is a solid wall?  ”Yes.”  When his hand came back up, it was still closed?  ”Yes.”  You did not see it open?  ”No.”  You didn’t recover anything from his hand?  ”No.”

By breaking it down into little facts, you might here be able to argue that the officer didn’t really see what he claims to have seen.  He just drew a conclusion that the guy dropped the drugs there.  But for all he knows, the drugs had already been there.

Breaking down the conclusions — and every story is made up of conclusions — is also far and away the best method of catching a liar.  Liars tend to invent only a surface story.  Nobody has the time or the inclination to invent every little detail about an event.  Even the most verbose novelists only give you a veneer, a summary of what they’re depicting.  The rest of the details are left to the listener’s own imagination.

But a liar is going to invent facts to fill the gaps, if you ask them to.  An honest person might not have noticed, but the fabricator won’t often say that.  They’ll give you a fact.  And they won’t have prepared for it.  They won’t have thought this one through.  (If they try to, don’t let them.  Interrupt long pauses with something like “please answer my question” to highlight to the jury that they’re taking their time to come up with an answer — something you can later argue is not commonly done by truth tellers.)  The more facts you can elicit from a liar, the more likely they are to contradict themselves or other evidence.  They’re going to give you gold.  Make sure you’re paying attention, so you can spot it.

Take your time with this step.  Have fun with it.  Use the witness’s own story to undermine their credibility.  It can be very effective.  If you’ve got nothing else, you’ve always got their own testimony.

STEP THREE: HIGH CONTRAST

You’ll wind up this cross-examination by making it painfully clear to the jury that there are two incompatible versions of the facts here, and they’re going to have to pick one.  After you close on the nuggets you gleaned in Step 2, you want the choice to be obvious that they should believe your version, not this witness’s version.  So you need to point out specifically where they differ.

So walk the witness now through your side of the story.  Get them to categorically deny every single fact where their story is different.  ”So you’re saying it’s not true that Susan gave you a beer?”  ”So Bill didn’t have any awkwardness getting his penis into your vagina, and you didn’t help put it in?”  ”So you never met anybody even resembling that undercover?”

Be sure to break it down here, too.  You want as many different contradictions as possible.  You don’t want the other side to be able to explain this away as normal human error, just remembering little details wrong.  You want it perfectly clear that this witness’s story is simply incompatible with your story.  There is no way they can both be true.  All your work so far is going to be for nothing if you fail with this step.

But of all the steps, it’s the easiest.  Just walk them through it, and get them to deny as much as possible.

-=-=-=-=-

If you’ve got absolutely nothing else to go on, you can always do these three simple things.  And if you’re paying attention, and you do them right, you will have performed an effective cross.

At the very least, you’re going to be able to argue to the jury that they’re going to have to pick one story or the other.  You’ll be able to argue that they should not believe the other side’s witness.  You’ll be able to argue why your facts are the right ones.

For a situation where you’ve got nothing else to work with, that’s not half bad.

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.

-=-=-=-=-

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 it.

The old man went after him to try to take the bat away, while his son ran into the deli to get a pistol. Campbell went to the other end of the parking lot, swinging at the old man with every step. By this time, the old man had taken a crack to the hand, as well. Several witnesses saw Campbell threatening with the bat, now, holding it in a stance like he was about to swing.

At that moment, DiGuglielmo ran up with the gun and shot Campbell three times, killing him.

-=-=-=-=-

Two witnesses saw it from inside a truck parked right there. After the shooting, they made statements to the press and to the police that Campbell was still swinging the bat at the old man, had swung at his head, and was about to swing again when he got shot.

At trial, however, they testified differently, telling the jury only that Campbell was holding the bat in a batter’s stance, but was not swinging the bat, when DiGuglielmo shot him.

The trial was a mess. The local district attorney, Jeanine Pirro, was a publicity hound (and more than a bit of an embarrassment to those of us in other DA’s offices), and tried the case in the press, basically calling this a hate crime and accusing the DiGuglielmos of being racist. She dearly wanted to get a cop convicted here. After the defense rested, the prosecution figured out that they weren’t going to win on the charge of intentional murder, and switched their theory to “depraved indifference” to children who were on the street near the deli.

Forgetting that the prosecution’s job is to prove what really happened, and not plead in the alternative two different ways it might have happened, they asked for both theories to be presented to the jury as alternatives. The jury threw them a bone, convicting DiGuglielmo of depraved-indifference murder, not realizing that it carries the same penalties as intentional murder. DiGuglielmo got 20 years to life, for defending his father.

The appeals were a mess, too. We’ll spare you the details.

Fast-forward to 2006. The two key witnesses from the trial, who had witnessed the events from their truck, had now come forward with evidence that they had been pressured by the police to change their stories, during a course of police interrogation in the days following the shooting.

This was clearly new evidence that would have had a big impact on what the jury would have thought. And it was certainly evidence helpful to the defense that had not been disclosed by the People. So at the very least there was a clear Brady violation. And maybe it counted as newly-discovered evidence that would have resulted in a more favorable verdict.

So DiGuglielmo filed a CPL 440.10 motion to vacate the conviction. The court, to its credit, found this to be the right kind of newly-discovered evidence, and certainly Brady material.

In a detailed, 69-page decision, Judge Bellantoni vacated the conviction, and on September 19, 2008, DiGuglielmo was released from prison.

The DA’s office appealed.

This week, DiGuglielmo was ordered back to prison.

-=-=-=-=-

What happened?

What happened is, the Appellate Division screwed up. You can read the opinion here, and see for yourself.

It’s a horrible decision, and we’re frankly surprised that it made it out of the draft stage in this form.

Here’s the logic, in a nutshell:

(1) Based on the testimony at trial, the jury must have concluded that the father was being the aggressor, and that the victim was backing away, and most importantly that the victim was not swinging at his head.

(2) The new evidence contradicts those conclusions. The new evidence is that the men in the truck saw the victim swinging at the father’s head, and was about to do so again. The new evidence is that they made multiple statements to that effect on the day of the shooting, but only changed their stories after several days of police pressure to do so.

(3) Because the new evidence is contrary to what the jury concluded, it must be something the jury didn’t believe. Therefore, the jury wouldn’t have believed this new evidence. And so the new evidence wouldn’t have changed the jury’s mind.

That’s circular reasoning. The jury didn’t believe the victim was about to take a swing at the old man. Therefore, the jury wouldn’t have believed evidence to the contrary. So it wouldn’t have made a different to introduce such evidence.

And how is that not Brady, at the very least?

-=-=-=-=-

And compare this brief, careless decision with the more lengthy one below. Say what you will about it, Judge Bellantoni’s decision is not lacking in analysis of the law and the facts. And he clearly made every effort to do it right.

The judiciary must not take on the coloration of whatever may be popular at the moment. We are the guardian of rights, and we have to tell people things they often do not like to hear.” – Hon. Rose E. Bird. Our oath requires that we make the right decisions, even if difficult and unpopular. It must be stated that this Court, in its above discussions and ultimately, its decision in this case, certainly does not intend to disrespect the memory of Charles Campbell or the Campbell family. This decision was not made lightly. Indeed, for the past two years, the Court has struggled with, and considered, all of the arguments and positions connected with the issues in this case and it’s ruling is consistent with the undercurrent of the criminal justice system – that where an injustice has occurred, all benefit of the doubt, consistent with current case law and precedent, must be afforded an accused. Thus, for the factual and legal reasons stated above, this result is mandated by the principles of justice.

(Decision and Order, Sept. 17, 2008 at 67.)

-=-=-=-=-

And it’s just a slap in the face for the Appellate Division to cite to People v. Tankleff, 49 A.D.3d 160, 180-181, in support of its decision here. In Tankleff, the defendant showed there was a reasonable probability that, had all of the new witnesses testified at trial, the outcome would have been different, and the Appellate Division granted Tankleff a new trial. Here, the same thing happened. So at a minimum DiGuglielmo ought to have been awarded a new trial.

Instead, the court simply sent him back to prison, without even giving a jury the opportunity to evaluate all of the new and old evidence and witnesses.

This decision sends an awful and disturbing message: Innocence is irrelevant.

-=-=-=-=-

This week’s decision is one of the biggest screwups we’ve seen in a long time. And the result is tragic.

Think about it. The man was wrongly convicted in the first place, after a show trial making him a scapegoat of the racial politics of the day. He spent 11 years in prison, unjustly. But then justice finally prevailed, and he got his freedom back. He got to return to life and his family. And then, with a callous stroke of the pen, a badly-reasoned decision rips him away from that cherished freedom, and tosses him back into prison.

Going in the first time was bad enough. We can’t imagine how much worse it must be this time.

Badly done, Appellate Division.

[Our paralegal, Marty Tankleff (no stranger to unjust convictions himself) contributed to this piece.]

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 they’ve been read their rights. Either someone’s going to talk, or they aren’t. Whether or not the police Mirandized them first has zero effect on whether someone’s going to answer police questions.

This is another instance of where the real world differs wildly from what you see on TV. On TV, when someone gets arrested, the cops recite the litany “you have the right to remain silent,” etc. In real life, at least here in NYC, that never ever happens. The first time someone gets Mirandized, if ever, is after they’re taken back to the precinct and it’s been determined that they’re going to confess. Cops are trained not to Mirandize people, in the unfounded belief that people clam up afterwards. As a result, they lose out on a lot of statements they actually could have used.

The person who clams up after being read his rights, or demands a lawyer, would have done so regardless. They already knew the magic words, and so they said them. For those who might have talked anyway, being read their rights actually makes them more likely to do so. They may not know the significance of the Miranda warnings, but by God they know they’re supposed to be read their rights, and once that happens it’s actually satisfying and in a way relaxing. Things are as they should be. Whatever they’re thinking, nobody suddenly thinks “oh my God, I’d better shut up now” once they’re read their rights. Doesn’t happen.

So it’s a rare instance of where real life ought to be more like TV. If, immediately on arrest, the cops said the magic litany, they’d be able to gather so many more confessions and statements that they’d be able to use at trial. There would be more evidence, not less. This is no less true in the case of terrorist subjects than anyone else. The Times Square suspect seems to be a typical case, still talking happily long after being Mirandized.

This leads to the second point: There is no reason to Mirandize someone if you’re not going to use the statements at trial in the first place. Nothing prevents the gathering of intelligence for national security purposes when that intel is not going to be used at the trial of the guy who’s spilling the beans. Miranda doesn’t preclude the gathering of intelligence, it only precludes using stuff at trial.

So seriously, if the administration wants actionable intelligence they can use to hunt down terrorists in Pakistan, the Miranda rule is not stopping them. You want to find out who controlled the terrorist, who the other members of his cell were, where the money came from, who supplied the training and equipment, then go to it. You don’t need it for trial, all you need is the evidence of the crime. Hell, you don’t need his confession at all. Just proceed with the criminal case as if the guy had never confessed. Use his statements to prevent future attacks and build investigations against other people (who won’t have standing to object) and try him with all the other evidence you got.

-=-=-=-=-

What is the purpose of the Miranda rule, after all? It’s the same as the reason for the Fifth Amendment right against custodial self-incrimination. The only reason is to make sure the state doesn’t use its awesome power to override the free will of the individual, and force him to incriminate himself out of his own mouth.

If nobody’s forcing you to incriminate yourself, the law doesn’t care. It was your own free will, stupid as it may have been. But if you really do not want to say the words that will result in your punishment, then the state cannot extract those words by fear or intimidation or pain.

And when you’re in custody, you’re in an inherently intimidating situation. So the asking of any questions by the police when you’re in custody — or even raising an eyebrow or doing anything else likely to get an incriminating response — is unfairly taking advantage of the might of the state to force you to say the words against your will. Conceptually, it’s no different from Star Chamber or the Inquisition, and it’s what Americans have been dead set against from the get-go.

But note that this is the only thing we’re concerned with here. There’s no self-incrimination issue if your DNA is sampled for comparison to the DNA found at the scene, even if it convicts you. You weren’t actively convicting yourself, your free will was not involved, even if you objected to the DNA sampling itself. You weren’t providing facts out of your own mouth that you didn’t want to say. It’s not a Miranda issue.

And if someone else made statements that resulted in your conviction, it’s not an issue either. It wasn’t your free will being overridden, so you don’t get to complain about it, and you don’t get to have his statements suppressed. They can be used against you just fine (except of course for Bruton and other issues that aren’t really the point here).

So none of this is really the concern here when interrogating suspected terrorists. The point is not so much to gather evidence to use at trial — law enforcement already has it, or else they wouldn’t be interrogating the guy now. But there’s zero harm in simply reading the guy his right the instant he’s arrested, so when he does talk you can use it. Because he’s not going to decide not to talk just because you read him his rights.

We’re on the record already saying the Administration’s foolish for focusing on civilian criminal justice in dealing with foreign terrorists. But even if we agreed with that policy, we’d still have to conclude that they’re being extra-foolish here. It’s a bad idea.

Finally, don’t forget about all those unintended consequences that seem to happen more often than not. The Obama administration could wind up eroding the Miranda rule dramatically, by creating a precedent for carved-out exceptions via the Legislative branch. Something tells us that vote-hungry congressmen, always eager to look tough on crime, would jump at the precedent to take away even more of our Constitutional protections. It always seems like this happens most often as the result of good-intentioned administrations who ignore common sense in their rush to do “the right thing.”

So, like we said, this is just stupid. Holder’s wrong. Terrorism is no reason to relax Miranda/.

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 skin oil, containing his own unique blend of bugs. If that’s so — and again that’s a big “if” — then this could be a useful forensic tool to help figure out whodunit.

Just don’t hold your breath.