KY SC Feb 23 - Giving the jury additional facts during deliberations over defense objection reverses conviction

Bradley Allen Day v. Commonwealth 1009-SC-641-DG. To be Published.

After deliberating for over 4 hours as to Day’s guilt, the jury asked the trial court to tell them the penalty range for the lesser included offense of first-degree sexual abuse. The trial court, over Day’s objection, told the jury the penalty was one to five years’ imprisonment. Forthwith, the jury returned with a guilty verdict on the lesser included charge and eventually a three year sentence.

The trial Court erred by telling the jury the penalty range for the lesser included offense during the guilt phase of trial. In Norton v. Commonwealth, 37 S.W.3d 750 (Ky. 2001), the Kentucky Supreme Court propounded the general rule that penalty evidence, such as the sentencing range for the instructed upon offenses, is not admissible during the guilt phase. However, in the case at bar, The Court of Appeals found no indication the trial court gave the penalty range information to the jury in order to impermissibly influence the jury to convict based on a desired verdict.

The Kentucky Supreme Court held that the Court of Appeals expanded existing case law (Norton) to create an exception where one has not been previously existed. In addition, the trial court’s conclusion the jury would have heard the information anyway is belied by Lawson v. Commonwealth, 53 S.W.3d (Ky. 2001), which held that defense counsel’s voir dire on penalty range is limited to the range encompassed by the indicted offenses. In the case at bar, the sexual abuse instruction arose as a result of the evidence presented at trial, thus, the parties would have erred by informing potential jurors of the penalty range for sexual abuse during voir dire.

Contributed by Erin Yang

KY COA Feb 17th - Parker - Eyewitness Identification

Parker v. Commonwealth, 2010-CA-001371, To Be Published—

The Court of Appeals reversed the trial court’s denial of suppression.  The purse snatch victim was shown still photos pulled from store surveillance camera and then asked to identify the co-defendant, who named Mr. Parker.  Mr. Parker joined in suppression motion filed by co-defendant.  Commonwealth was prevented from asserting standing defense for first time on appeal and the Court held on the merits that the trial court had abused his discretion in not suppressing bad identification when Commonwealth produced no evidence to support a finding on 3 of the 5 Biggers factors.

Contributed by Erin Yang

Preventing False Confessions - NY Times Op-Ed

Why Do Innocent People Confess?

If you have never been tortured, or locked up and verbally threatened, you may find it hard to believe that anyone would confess to something he had not done. Intuition holds that the innocent do not make false confessions. What on earth could be the motive? To stop the abuse? To curry favor with the interrogator? To follow some fragile thread of imaginary hope that cooperation will bring freedom?

Yes, all of the above. Psychological studies of confessions that have proved false show an overrepresentation of children, the mentally ill and mentally retarded, and suspects who are drunk or high. They are susceptible to suggestion, eager to please authority figures, disconnected from reality or unable to defer gratification. Children often think, as Felix did, that they will be jailed if they keep up their denials and will get to go home if they go along with interrogators. Mature adults of normal intelligence have also confessed falsely after being manipulated.

False confessions have figured in 24 percent of the approximately 289 convictions reversed by DNA evidence, according to the Innocence Project. Considering that DNA is available in just a fraction of all crimes, a much larger universe of erroneous convictions — and false confessions — surely exists.

New Resource on Latent Prints from U.S. National Institute of Standards and Technology (NIST)

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Latent Print Examination and Human Factors: Improving the Practice through a Systems Approach

Fingerprints have provided a valuable method of personal identification in forensic science and criminal investigations for more than 100 years. The examination of fingerprints left at crime scenes, generally referred to as latent prints, consists of a series of steps involving a comparison of the latent print to a known (or exemplar) print.

In addition to reaching correct conclusions in the matching process, latent print examiners are expected to produce records of the examination and, in some cases, to present their conclusions and the reasoning behind them in the courtroom. In recent years, the accuracy of latent print identification has been the subject of increased study, scrutiny, and commentary in the legal system and the forensic science literature. In December 2008, the U.S. National Institute of Standards and Technology

(NIST) convened The Expert Working Group on Human Factors in Latent Print Analysis to conduct a scientific assessment of the effects of human factors on forensic latent print analysis and to develop recommendations to reduce the risk of error. This report documents their findings and recommendations, addressing issues ranging from the acquisition of impressions of friction ridge skin to courtroom testimony, from laboratory design and equipment to research into emerging methods for associating latent prints with exemplars. It provides a comprehensive discussion of how human factors relate to all aspects of latent print examinations including communicating conclusions to all relevant parties through reports and testimony.

Click here to retrieve PDF version of paper (11631 K)

ABA Resolution regarding expert testimony

Urges Judges’ Consideration Presenting Expert Testimony to Jurors

RESOLVED, That the American Bar Association urges judges and lawyers to consider the following factors in determining the manner in which expert testimony should be presented to a jury and in  instructing the jury in its evaluation of expert scientific testimony in criminal and delinquency proceedings:

1.      Whether experts can identify and explain the theoretical and factual basis for any opinion given in their testimony and the reasoning upon which the opinion is based.

2.      Whether experts use clear and consistent terminology in presenting their opinions.

3.      Whether experts present their testimony in a manner that accurately and fairly conveys the significance of their conclusions, including any relevant limitations of the methodology used.

4.      Whether experts explain the reliability of evidence and fairly address problems with evidence including relevant evidence of laboratory error, contamination, or sample mishandling.

5.      Whether expert testimony of individuality or uniqueness is based on valid scientific research.

6.      Whether the court should prohibit the parties from tendering witnesses as experts and should refrain from declaring witnesses to be experts in the presence of the jury.

7.      Whether to include in jury instructions additional specific factors that might be especially important to a jury’s ability to fairly assess the reliability of and weight to be given expert testimony on particular issues in the case.

Proposed Resolution and Report

Resolution

New Online Resource - "Mental Competency ??? Best Practices Model"

The National Judicial College has just launched an amazing online resource on competency. The goal of the "Mental Competency – Best Practices Model" is to present practices deemed to be most effective and efficient for handling mental competency issues in the criminal justice and mental health systems. 

An estimated 60,000 competency evaluations are court-ordered each year. Approximately 20 percent of these evaluations lead to findings of incompetence—roughly 12,000 defendants are found incompetent to stand trial in the United States each year. Major mental illness, intellectual disability or other cognitive limitations are the most frequent causes of adjudicative incompetence. This means, of course, that roughly 80 percent of the court-ordered evaluations result in findings of competence—a figure that, in and of itself, suggests there is room for dramatic improvement. Not only is the competency evaluation process costly to the jurisdiction, but it may unnecessarily lengthen the time a defendant is involved in the criminal justice system.

The purpose of the Mental Competency—Best Practices Model is to present a body of practices deemed to be most effective and efficient for handling mental incompetency issues in the criminal justice and mental health systems. The practices are designed to complement one another to “serve[] both the interests of fairness . . . and of sound judicial administration.” Drope v. Missouri, 420 U.S. 162, 176-77 (1975) (citations omitted). For instance, one of the best practices is for the court to advance the date for a hearing on the issue of the defendant’s competency to the day after the competency report is filed for a misdemeanor charge(s), and to within 10 days for a felony charge(s)—and to likewise advance the date for a plea hearing or trial. If the court adheres to this best practice, the positive, cascading effect will likely be felt system-wide—saving the court, jurisdiction, city, county, and/or state the funds to maintain restored defendants—and reducing the amount of time the mentally ill individuals are detained, awaiting further proceedings.

The model presents best practices from the initial competency hearing through discharge or referral for civil commitment; it also suggests practices to further education and collaboration within the jurisdiction, county, and state. The model presents protocols for competency hearings; practices relative to competency evaluations and reports, treatment, and restoration; and practices for establishing a competency court or docket. Those practices may significantly decrease the percentage of unnecessary referrals for competency evaluations while increasing the percentage of referrals that result in the court finding that the defendant is incompetent. The model suggests practices to maintain the competency of restored defendants which may lower the overall costs and help to prevent restored individuals from decompensating. The model also addresses practices relative to the involuntary administration of medication pursuant to the United States Supreme Court opinion in Sell v. United States, 539 U.S. 166 (2003).

The best practices include a brief discussion, related issues, and resources. You will also find on this website the list of experts who contributed to the model; a resources section with articles and books on the subject, cases, forms, guides and published standards, state competency statutes, and related studies. Additionally, you will findvideos of mock competency hearings and a competency assessment presented by experts on the panel, and a section on other system components, such as diversionary practices.

Beginning later this year, the website will also feature webinars on how to incorporate best practices into your court or jurisdiction. Note that the Mental Competency—Best Practices Model is also available in portable document format (PDF) on this website for ease of printing and with additional citations.

Op-Ed about DNA Bill

Allow more DNA testing - Lexington Herald-Leader

It's telling that the prosecutor who oversees more criminal cases than anyone in Kentucky recently testified in favor of expanding the availability of post-conviction DNA testing.

We don't usually expect prosecutors to help convicts get out of jail. But when the wrong person is locked up, the individual who actually committed a violent crime is not held accountable and our system of justice has failed.

Everyone has a stake in getting it right, which is why Jefferson Commonwealth's Attorney Dave Stengel of Louisville urged the approval of House Bill 178.

HB 178

Read more here: http://www.kentucky.com/2012/02/07/2058706/allow-more-dna-testing.html#storyl...

 

February 2012 Advocate Now Available

DPA February 2012 Advocate