Memory and Eyewitness Testimony

In spite of statistics showing that eyewitness misidentification is the most common element in all wrongful convictions later overturned by DNA evidence, witness testimony has remained a gold standard of the criminal justice system, according to The New York Times.

For the first time in three decades, the validity of using eyewitness testimony has come under review by the Supreme Court in a case involving a New Hampshire man who was convicted of theft based on the identification by a woman who saw him from a distance in the dead of night.

Earlier in the year, the New Jersey Supreme Court issued a landmark decision requiring major changes in the way courts are required to evaluate identification evidence at trial and how they should instruct juries. The new changes require courts to greatly expand the factors that courts and juries should consider in assessing the risk of misidentification.

When selective attention combines with fear, "you have a very strong memory for a few details," said Elizabeth Phelps, a psychology professor at New York University. "Emotion gives us confidence more than it gives us accuracy."

The problem comes when witnesses bring that certainty to the entire memory. In crimes that involve a weapon, Dr. Loftus and other scientists have found that witnesses will fixate on the gun barrel or knife blade but will fail to notice other details as clearly. Yet because they so starkly remember particulars of the weapon and may have the accuracy of parts of their memory affirmed by police officers and prosecutors, witnesses carry an air of assurance into the courtroom.

Read the full article.

Understand the causes of eyewitness misidentification.

Read about sequential lineups and the recent report: A Test of Simultaneous vs. Sequential Lineup Methods: An Initial Report of the AJS National Eyewitness Identification Field Studies

Source - Innocence Project Blog

D.G. - Contempt - No Boykin

D.G. v. Commonwealth of Kentucky, Court of Appeals, Fayette County, TO BE PUBLISHED

The court vacated and remanded the court’s order finding child in contempt as well as accepting the plea on the underlying juvenile status offense.  The Court held that contempt cannot be found where the underlying guilty plea did not receive the full due process rights guaranteed by the Constitution under KRS 600.020(61)(d) and 610.010(11). 

In this case, there was no Boykin colloquy at the time that D.G. entered the plea, in fact the attorney just stated that there would be a stipulation.  Thus, the court held the plea was not clearly voluntary and intelligent since there was little to no explanation of possible consequences of an admission prior to accepting it.  The court reiterated that juvenile’s should have heightened assurance of the protection of their rights. 

Since the plea was entered without these protections, the court orders that the court held D.G. in contempt of were not valid court orders and thus both findings were required to be vacated and the case remanded back to family court.

Contributed by La Mer Kyle-Griffiths

Rowe - RCr 10.02

Rowe v. Commonwealth 2008-CA-916 and 2008-CA-1824

Opinion dated November 18, 2011, Affirming  To be published. 

The issue in this case was whether the defendant’s two RCr 10.02 motions for a new trial based on newly discovered evidence were properly denied by a trial court without an evidentiary hearing.  In the first appeal, the trial court properly held that the RCr 10.02 motion was deficient because the defendant failed to file an affidavit that the evidence could not have been discovered before trial even with the exercise of due diligence.  In the second appeal, the trial court properly held the defendant made two errors. 

First, he failed to file an affidavit detailing the new evidence and explaining why the evidence was not discovered before trial.  Second, the second RCr 10.02 motion did not comply with the procedural requirements of RCr 10.06. 

Trial tip: courts are serious about making defendants follow deadlines and procedures.

Contributed by Robert Yang

AG Eric Holder's Letter to State AGs about Collateral Consequences and Reentry

Public Safety requires us to carefully tailor laws and policies to genuine risks while reducing or eliminating those that impede successful reentry without community benefit.  In evaluating the efficacy of your state's collateral consequences, you have the opportunity to ease the burden on families and communities in your state by ensuring that people who have paid their debt to society are able to live and work productively.   This is why I hope that you will agree to review these law and policies in your state. 

AG_Letter.pdf

NLADA Gideon Alert - Underrepresentation in Kentucky misdemeanor courts

Underrepresentation in Kentucky misdemeanor courts

By David Carroll

“An inevitable consequence of volume that large is the almost total preoccupation in such a court with the movement of cases.  The calendar is long, speed often is substituted for care, and casually arranged out-of-court compromise too often is substituted for adjudication.  Inadequate attention tends to be given to the individual defendant, whether, in protecting his rights, sifting the facts at trial, deciding the social risk he presents, or determining how to deal with him after conviction.  The frequent result is futility and failure.” [Argersinger v. Hamlin, 407 U.S. 25 (1972), affording the right to counsel to every case with a potential jail sentence.]

“Trampling Over the Sixth Amendment,” a story published November 9, 2011 in CityBeat, is an apt description for how the right to counsel is handled in many of our country’s lower courts, where misdemeanor cases are heard and felony cases often begin.  It is a common occurrence for these courts to attempt to save money and expedite the processing of cases by pressuring the accused to forego his right to legal representation without adequately informing him of the consequences of doing so (such as potential loss of public housing, deportation, inability to serve in the armed forces, and/or ineligibility for student loans, to name a few).  Other courts threaten to impose large fines and costs if a client insists on receiving legal representation, and some simply refuse to appoint an attorney in direct violation of Argersinger and the Sixth Amendment.
 
The CityBeat story focuses on two northern Kentucky counties where the desire for speed over due process seems especially egregious (Kenton and Campbell).  A report from the Kentucky Department of Public Advocacy (the statewide public defender program) notes that on average only 29.5% of all misdemeanor defendants get counsel in Kentucky.   Kenton and Campbell counties fall well below even that average.  In Kenton, only 7.8% of misdemeanor defendants qualified for counsel over the last three years, while less than 5 out of every 100 people facing misdemeanor charges in Campbell County received a public defender (4.5%) over the same period.
 
As one public defender describes it, “judges just don’t want to slow their dockets down,” and the judges assume defendants are “waiving their right to a public defender unless indicated otherwise.”  Our courts are supposed to protect defendants by ensuring that, before they waive their right to counsel and plead guilty, judges confirm the defendant understands the rights he is giving up. According to a public defender quoted in the CityBeat story, no discussion ever takes place to determine the validity of the waiver in these Northern Kentucky counties.  “Someone might be working at Skyline Chili, trying to support a family.  Yes, they’re employed, but that doesn’t mean they’ve got money to hire an attorney.  I sat in on one court session when the first thing a judge said to the defendant was, ‘You don’t qualify.’  Of course, they’re not going to question it.  A judge just told them so.” 
 
Short of reclassifying many non-violent misdemeanors to non-jailable infractions, fixing the no counsel court problem in Kentucky will be difficult because of the long history of excessive caseloads in the state.  The Kentucky Department of Public Advocacy (DPA) provides right to counsel services in every jurisdiction in the state, with the exception of Louisville-Jefferson County.  DPA is overseen by the 12-member Public Advocacy Commission.  Central administration and post-trial defenders operate out of the agency’s Frankfort office, with trial services provided by the thirty non-capital branch offices located throughout the state.  Services in Louisville-Jefferson County are provided by the Louisville-Jefferson County Public Defender Corporation, a non-profit defender office under contract with the county.  Commonly referred to as the Louisville Metro Defender, the office operates cooperatively with, but functions separately from, the state Department of Public Advocacy. 
 
Kentucky public defenders work at levels far above national averages.  As stated in the 2010 U.S. Department of Justice, Bureau of Justice Statistics report, State Public Defender Programs, 2007, “defense counsel's workload should be sufficiently controlled to allow defenders the time needed to provide quality representation in each case.  Furthermore, public defenders are expected to decline appointments that exceed the established caseload limits.”  To help policymakers understand how best to control public defender workload, the U.S. Department of Justice's National Advisory Commission (NAC) on Criminal Justice Standards and Goals specified that a public defender should not have more than 150 felony noncapital, 400 misdemeanor, 200 juvenile, or 25 appellate cases per year.  Using these guidelines, the BJS report notes that the Kentucky Department of Public Advocacy operated in 2007 with 327 attorneys when DOJ workload guidelines would require 636 attorneys.  In other words, for every fifty-one attorneys they presently have, they actually need one hundred attorneys to properly handle the caseload.
 
Unfortunately, this is not –- or should not be -- news to Kentucky policymakers.  In August of 1978, the U.S. Department of Justice, National Center for Defense Management noted in a report that the work of the fifty-five attorneys required under national standards was being done by just sixteen Kentucky defenders.  A preliminary review of DPA by The Spangenberg Group, released in 1998, showed that DPA caseload “far exceed[ed]” national standards.  A year later the Final Report of the Blue Ribbon Group (June 1, 1999) concluded that “[h]igh caseloads take an immediate toll on attorney morale and performance, calling into question the level of advocacy provided on behalf of clients.  High employee turnover, and its accompanying perpetual state of hiring and training, has become a fact of life in several of the DPA offices.”  And, a September 2002 report of the ABA National Juvenile Defender Center found that, despite a drop in caseloads in some parts of the state, juvenile cases were still far in excess of national standards. 

This Week's SCOTUS Oral Argument Audio and Transcripts Online

Kawashima v. Holder

Whether a person can be deported for filing a false statement on a corporate tax return under a statute that allows the government to deport anyone convicted of an aggravated felony involving fraud and deceit?

Zivotofsky v. Clinton

Whether courts can enforce a federal statute governing how the Secretary of State is to record the birthplace of American citizens on passports and related documents; and (2) whether a federal law instructing the Secretary of State, if requested to do so, to record the birthplace of U.S. citizens born in Jerusalem as Israel interferes with the President's authority under the Constitution to recognize foreign nations.

Smith v. Cain

1) Whether there is a reasonable probability that the outcome of Smith's trial would have been different but for Brady and Giglio/Napue errors; 2) whether the state courts violated the Due Process Clause by rejecting Smith's Brady and Giglio/Napue claims

United States v. Jones

(1) Whether the warrantless use of a tracking device on respondent's vehicle to monitor its movements on public streets violated the Fourth Amendment; and (2) whether the government violated respondent's Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.

Kurns v. Railroad Friction Products Corp.

Do federal laws governing railroad safety prohibit lawsuits against railroads under state law for injuries allegedly caused by the railroads?

National Meat Assn. v. Harris

Whether the Federal Meat Inspection Act which requires slaughterhouses to hold animals that become unable to walk for observation for evidence of disease preempts a state law that requires such animals to be immediately killed.

 

Turner - Gant analysis

Ray Lewis Turner v. CW

rendered on August 12, 2011 by the Court of Appeals - REVERSING AND REMANDING

To be published (CW petition for rehearing pending)

A 2-1 panel of the Court of Appeals ruled that the evidenced seized in a search of Mr. Turner’s car must be suppressed. Turner was stopped for turning without a proper signal while a block from his home. Turner had a license but it was not on his person. He refused to allow the police to consent because the vehicle was not his. The police told him they were calling a drug dog but none came. While Turner was in the truck, an officer saw him moving his arms between his legs and shrugging his shoulders. An open beer can was in the console covered by a hat police thought Turner had on while driving. Turner was given field sobriety tests but was not intoxicated. Turner was patted down, $232 was found, and Turner was arrested for not having his license on him, and was placed in a police cruiser. Police then searched the truck and found baggies with meth under the seat he was sitting in.

The Court of Appeals noted there was no reason the police could not have gotten a warrant to search the vehicle, presumably expressing that there was no exigent circumstances to justify a warrantless search. The Court accepted that Turner was acting nervously, “a fact of dubious importance,” and making movements with his hands.  The Court held, “[T]here are notable exceptions that authorize warrantless searches, but, as forcefully reiterated in Arizona v. Gant, those exceptions have not swallowed up the rule.” It was for the judiciary to decide if one applied.

Contributed by Kathleen Schmidt

Last Week's SCOTUS Oral Arguments Audio & Transcript Available

The Oyez Project at Chicago-Kent has posted audio and transcripts of oral arguments from last week’s six arguments.

• Gonzalez v. Thaler          

(1) Whether the court of appeals was permitted to consider the prisoner's appeal in this federal habeas case; (2) when does the one-year statute of limitations for federal habeas claims start running?

• Lafler v. Cooper            

When a criminal defendant turns down a plea offer based on seriously deficient advice from his lawyer, and then receives a harsher sentence after being convicted by a jury after a fair trial, can the defendant later seek to overturn his sentence on the ground that his counsel was unconstitutionally deficient in advising him to reject the more generous plea offer? If so, what is the proper remedy for ineffective assistance of counsel in that situation?

• Minneci v. Pollard            

Whether federal inmates may sue employees of a private prison company for violations of the Constitution.

• Missouri v. Frye      

Can a criminal defendant who was convicted after a jury trial later argue that his lawyer was inadequate because he failed to tell him that prosecutors had offered a deal to plead guilty in exchange for a lighter sentence? And, if so, what should courts do to correct the lawyer's error?

• Perry v. New Hampshire 

In a criminal case, is a court required to exclude eyewitness identification evidence whenever the identification was made under circumstances that make the identification unreliable because they tended to suggest that the defendant was responsible for the crime, or only when the police are responsible for the circumstances that make the identification unreliable?

• Rehberg v. Paulk          

Whether a government official is absolutely immune from suit for causing an innocent person to be prosecuted by giving perjured testimony to a grand jury.

Featured Case - Marshall - Revocation for failure to pay

CW v. Marshall; CW v. Johnson

Rendered by the Supreme Court of Kentucky on August 25, 2011

To be published (now final)

The Court analyzed the due process requirements that apply when the Commonwealth attempts to revoke the probation/conditional discharge of a person convicted of flagrant non-support for failure to pay current and past support as a condition of release. The Court held that the due process requirements set out by the U.S. Supreme Court in Bearden v. Georgia, 461 U.S. 660 (1983) apply because child support arrearages amount to restitution. The Court of Appeals, had previously adopted that holding in Gamble v. Commonwealth, 294 S.W.3d 406 (Ky. App. 2009). This means that the trial court must consider “whether the probationer made sufficient bona fide attempts to make payments but been unable to do so through no fault of his own and, if so, whether alternatives to imprisonment might suffice to serve interests in punishment and deterrence.” To revoke automatically would be fundamentally unfair otherwise.

            These due process requirements apply even if the defendant agreed to pay support as a condition of probation, settling a question left open by the Court of Appeals in Bearden. The Court held “Bearden recognizes constitutional concerns with revoking probation for nonpayment based on poverty alone.” The trial court should focus on the post-plea financial conditions of the defendant. The trial court already decided the defendant should not be incarcerated at the time of sentencing based on what was known then.

            The Court reminded trial courts that they must make specific findings on the record of the Bearden considerations. The Court held that while under CW v. Alleman findings do not necessarily be in writing, they still must be made specifically on the record and “general conclusory reasons” for revoking probation is not enough.

            Thanks to Josh Nacey for preserving this constitutional argument and putting on significant evidence in Marshall’s case about his good faith efforts to find work and pay his support and his poverty. We should be following the Bearden procedure and objecting under due process grounds if courts do not comply and do not make sufficient fact-finding.

Contributed by Kathleen Schmidt

Featured Case - Ivy - Contempt for Failure to Child Support

CW, CHFS, and Larry Barnes v. Renee Ivy (now Knighten)

Rendered in the Supreme Court on October 27, 2011,

To be published

The Supreme Court issued a well-crafted, 5-2 opinion in a case revolving around a family court order holding a mentally ill woman in contempt for failing to pay $106 in child support when her sole source of income was $25-$50 per month given to her by her public administrator from the remainder of her SSI benefits after her room and board were paid. The trial court modified the base amount of support to $60 at the hearing but also found Ivy to be able-bodied capable of providing financial support to her child, held her in contempt, and ordered Ivy to pay $60 plus $5 towards the arrearage or face arrest and service of 30 days in jail. The Court of Appeals reversed the contempt order as well as the order modifying because they were not supported by the evidence.

    The Court recognized the legislative mandate for allowing support to be ordered and to accrue even against a parent with no present ability to pay because “present circumstances need not be permanent.” SSI benefits are also included in that calculation by statute. However, the Supreme Court affirmed that a trial court always has the “broad discretion” to reduce a parent’s support obligation to less than the minimum amount of $60 if it determines from the evidence that that amount is unjust or inappropriate under KRS 403.211(2). The Court criticized the paucity of findings in the family court’s order supporting the decision to enter a $60 obligation. The Court found that the family court was operating under the “unfair or inappropriate” section of the statute to deviate from the statute, which was in its discretion to do, but erred when it did not explain through facts or law why it set a new amount that was higher than what Ivy received each month from her administrator. That portion of the case was remanded for reconsideration and findings under the standard set by the Court, rather than have the Court “divine” what led the family court to rule that way.

    The Court then distinguished between the ability to set and accrue support and the ability to collect it. A parent’s “ability to pay, …, does determine the extent to which support can be collected. Where there is no ability to pay, it is not contumacious to fail to do so.” The Court agreed with the Court of Appeal that the family court erred in finding Ivy was in contempt for failing to pay her support based on the facts from the hearing. The Court held that while receipt of SSI benefits alone does not compel a finding of inability to pay support, the family court is not free to “simply … disregard the [SSA’s] determinations that an SSI recipient is disabled and needs the full amount of his or her award for subsistence. If earning capacity is to be attributed to the recipient, or if child support is to be demanded from the SSI benefit itself, there must be evidence clearly establishing the recipient’s ability to work or the recipient’s ability to afford the support payment.”  The family court’s finding that Ivy was able-bodied and capable of providing support did not refer to the evidence and was unsupported by the evidence and was an abuse of discretion. The CHFS had relied on the family court’s observations of Ivy at other hearings. About this, the Court held, “While the family court’s courtroom observations are not meaningless, they cannot be the sole basis for the court’s assessment of Ivy’s mental condition, as assessment requiring specialized training.” The Court also noted that Ivy was paying support because the family court had found her unfit to have custody or even unsupervised visits with her baby.

   The Court went through the difference between civil and criminal contempt, finding this was still civil even though it flirted with criminal contempt. The Court found the family court’s coercive remedy for the contempt, i.e. the threat of future incarceration for future violations was not a true purge opportunity and was invalid.

    The Court also rejected CHFS’ attempt to use judicial notice as a method of getting into the record a purported current payment ledger showing Ivy was now paying the support. The Court held that assessing the proprietary of contempt must be based on the evidence before the trial court at the time of the hearing. It also wisely recognized that a payment ledger says nothing about whom or how the support is being paid.

    The Court encouraged courts, after a valid contempt finding, to fashion a meaningful remedy to fit the circumstances, as have been done by other courts.

    Lastly, the Court found that whether the attempt to collect support from Ivy by making her pay from her SSI benefits did not violate the Supremacy Clause, but held whether a constitutional violation occurred would be dealt with on a case-by-case basis.

    Trial tips- First, the result in this case was largely dictated by the excellent work of attorney David Bundrick who made a great record by calling Ivy’s public administrator to testify about her income and SSI benefits. The more great facts that are introduced about the inability of the SSI recipient to do anything other than scrape by, the better chance of defending a contempt violation. Second, the Court left open the possibility of a Supremacy Clause violation in the right circumstances (“does it do major damage to clear and substantial federal interests”). The two interests pitted against each other are the interest in the SSI benefits that are awarded solely for the benefit of the recipient to maintain a basic subsistence and the interest the state has in parents supporting their children. Depending on the evidence, that balance may well shift towards the parent. So attorneys should be making both due process and Supremacy Clause objections where the facts warrant them.

Submitted by Kathleen Schmidt