Jesse Carney, Jr. plead guilty to possession of counterfeit bills and being a convicted felon in possession of a gun charges. While he plead guilty, he reserved the right to appeal the denial of his motion to suppress evidence found in his white SUV with the license plate number 871-JKC and his residence located at 4902 Saddlebrook Court. He alleged that the affidavit supporting the search warrant was not supported by probable cause. Furthermore he alleged the affidavit contained misstatements of material facts and that there was not probable cause to support his arrest.

The Sixth Circuit Court of Appeals upheld the validity of the search warrant. First the court held that the presence or absence of probable cause to arrest Carney is immaterial. There was no evidence found as a result of the arrest that was used in the affidavit to obtain the search warrant. Carney did not give a statement when he was arrested and nothing he said was used to obtain the warrant. Second the Court found that while their may have been false statements in the affidavit there were no errors on the part of the affiant. He merely stated what he had been told, in good faith. As a result he did not make any misstatements. Finally a search warrant affidavit must merely show that a crime was committed and that there is probable cause to believe that evidence of the crime will be found in the places to be searched. The white SUV was used on at least two occasions by Carney when he gave someone a counterfeit bill and it was seen at his house. It was registered to Jenny McQuillen at the residence. His probation officer said that he had listed the residence as his home. As a result the court found that there was probable cause that evidence of the manufacture of counterfeit bills would be found in the vehicle and in the residence.

The Supreme Court reinstated an Illinois conviction for two counts of sexual assault. Irving L. Cross was tried on charges of kidnapping and sexual assault. The victim, though afraid, testified. Hardy was found not guilty of kidnapping and the jury hung on the sexual assault charge. The district attorney wanted to retry the case. Despite the victim’s alleged readiness to testify at the second trial she disappeared prior to the trial.

The victim’s mother, brother, and father told investigators that they did not know where she was. A week after talking to the mother, investigators had a second conversation with her. Apparently the victim had returned home between the two conversation but she ran away the day before the second interview. Investigators made numerous trips to both of her parents’ houses. They also checked at the Office of the Medical Examiner, her school, the Department of Public Aid, the jail, and local hospitals. They interviewed the parents of a former boy friend. All to know avail. Cross argued that investigators should have interviewed her current boy friend and her friends. They should have contacted the cosmetology school that had once attended and that she should have been subpoenaed before she disappeared. But the Supreme Court found that the district attorney made a good faith effort. Investigators can always do more work but all that is needed is a good faith effort.

At the retrial, the district attorney put into evidence the victim’s testimony at the prior trial. Under Crawford v. Washington an out of court testimonial statement can ony be placed into evidence if the the defendant has had a chance to cross examine the witness at an earlier stage in the proceedings and the witness is unavailable at the trial. Here there is no question the defendant had a chance to cross examine the victim at the first trial. The only question is whether the victim was unavailable at the second trial. The victim is considered unavailable if the prosecutor made a good faith effort to find the victim and procure testimony her for trial.

After Cross was convicted in the second trial he filed a writ of habeas corpus challenging the conviction and alleging that his right of confrontation had been violated under Crawford. The District Court denied the writ but the Seventh Circuit upheld it. The Supreme Court reversed, finding that the Cook County District Attorney’s office had made a good faith effort to procure the witness.

“The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) . . . imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Prior to defendant’s petition for habeas corpus the state courts of Illinois had turned down his claims of a violation of the Sixth Amendment right of confrontation. Since the state court decisions were reasonable the AEDPA requires the Federal courts to uphold the state’s decision.

Juan Leonardo Matus-Zayas was convicted on various counts of harboring and transporting undocumented immigrants. At his trial the government read into the record the depositions of three material witnesses which the court had previously released from custody.

On appeal the defense raised a number of objections to the use of the depositions at trial. The most important objection was that it violated the Confrontation Clause. However, since the defense failed to raise the issue at trial it was necessary to show that there was plain error in the admission of the transcripts instead of the more demanding de novo review.

The Confrontation Clause prohibits the admission of hearsay statements at trial unless the witness is unavailable and the opposing party had a chance to cross examine the witness prior to trial. Here the defense had a chance to cross examine the material witnesses at the deposition but the prosecution made no effort to show the witnesses’ unavailability at trial. The need to show unavailability is well known and it was plain error to admit the transcripts into evidence despite the lack of an objection from the defense.

However, the Ninth Circuit found that the admission of the transcripts did not “seriously affect the fairness, integrity, or public reputation of judicial proceedings” and therefore refused to reverse the convictions.

The Fourth Circuit Court of Appeals held that despite the significant changes in Confrontation Clause interpretation over the past several years hearsay remains admissible at sentencing.

Solomon S. Powell was convicted of mail fraud. He collected money for sale of merchandise over the internet, but he rarely delivered the merchandise. Though eight victims testified at trial at sentencing the court relied upon the investigation of Postal Inspector Evelyn Cross who testified at the hearing that he harmed over fifty people and that there was a loss of more than $200,000. This would have led to a guideline sentence of between 120 and 150 months. In an abundance of caustion the Court found that there were over 10 victims and a loss of $199,000, sentencing him to 102 months. While her report was thorough only the eight victims testified and the rest was based on hearsay.

Powell pointed to a line of Supreme Court cases, beginning with the 2004 case Crawford v. Washington limiting testimonial hearsay to cases where the witness is unavailable and where the defendant has had a chance to cross examine the witness. But the court held that once a person is convicted the right of confrontation no longer exists. The Supreme Court limited Crawford and its prodigy to evidence at trial and absent a change by the Supreme Court there was suffficient precedents to reject the confrontation clause at sentencing. It found that a wide variety of evidence is admissible at sentencing and that traditionally, as long as the evidence is reliable, hearsay has been admissible. As a result it upheld the sentence.

The Supreme Court in Michigan v. Bryant yesterday seriously limited the 2004 decision in Crawford v. Washington. In Crawford the Supreme Court held that the Confrontation Clause mandated that testimonial hearsay only be admitted into evidence if the witness is unavailable and the defendant had a prior chance to cross examine the witness.

But Crawford did not define “testimonial” well. Generally testimonial statements are statements that could be used as evidence. In Davis, the Supreme Court held that a statement is testimonial “when the circumstances objectively indi-cate . . . that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Post Crawford cases exempted statements that had a “primary purpose . . . to enable police assistance to meet an ongoing emergency.” But this turns out not to be very clear either and in the view of the Bryant majority not very comprehensive.

The police received a phone call in the early hours of April 29, 2001 stating a man had been shot and that he was at a gasoline station. Five officer independently arrived on the scene. Each officer asked the man, what happened, who did it, and where did it happen. He told them that Rick shot him and that it happened at Rick’s house. The victim, Anthony Covington later died of the injuries.

The prosecutor then entered Covington’s statements into evidence at trial. The Michigan Supreme Court reversed the conviction on confrontation grounds and the state appealed to the United States Supreme Court. The Supreme Court, in a decision by Justice Sotomeyer yesterday reversed the decision of the Michigan Supreme Court. The U. S. Supreme Court held that Covington’s answers to the questions were not testimonial in that the police were fulfilling their duty to protect citizens during an ongoing emergency.

The court came to the conclusion that the police officers were attempting to prevent other people from being shot by trying to find out where the shooter was located and whether the victim was in danger of being shot again. But as Justice Scalia points out in dissent the questions asked by the police were clearly testimonial. They did not ask questions regarding the serious injuries to Covington. All five officers consecutively asked the same questions to make sure that the testimony would not change and one of the officers admitted that considering the fact that the testimony would be preserved if Covington died. There was no shooter nearby and it would be unlikely if there was a shooter nearby that he/she would shoot anyone with five police officers surrounding Covington. The crime had been commited and there was no current emergency. As a result there was no public emergency that needed to be handled and the police were carrying out their duty to collect evidence and testimony for trial. Both Justices Sotomeyer and Scalia agree that the statements must be looked at objectively. But Sotomeyer looks at the statements from the point of view of the police while Scalia looks at the statments from the point of view of the witness. After all it is the witness’s statement that must pass confrontation grounds approval. It is clear that Covington was attempting to provide information that could be used in a prosecution.

Last year the Supreme Court, in a highly unusual move ordered the lower courts to hold a hearing to determine whether Troy Davis, a convicted murderer was actually innocent.

While the Supreme Court often hears direct appeals and appeals involving writs of habeas corpus. these appeals generally involve procedural and legal matters. In the absence of a flawed procedural or legal matter it is generally assumed that the finding of a jury is sacrosanct.

Pursuant to the Supreme Court’s order Judge William T. Moore Jr. of the Southern District of Georgia held an evidentiary hearing allowing Troy Davis to present witnesses in an attempt to show that evidence that was not available at the time of his trial exculpates him.

The court found that Davis presented insufficient evidence that a jury could find by a clear and convincing standard that he was innocent. He provided several types of evidence. Much of the evidence was recantations of evidence presented at trial. But the court found much of the recantations not credible and found the rest of the recantations to be too weak to convince a jury. Davis also presented evidence that another person, Sylvester Coles committed the murder including, hearsay statements by Coles. But again in light of the hearsay nature of the statements the court found it too weak to exculpate Davis. Other evidence was directly exculpatory. But the court found it to be smoke and mirrors and did not find it to be credible.

But prior to making his finding that Davis did not prove his case, Moore found that the Eighth Amendment permitted post trial findings of innocence when new evidence is presented. In a number of cases the Supreme Court has considered the appropriateness under the Eighth Amendment of the death penalty based upon the characteristics of the offender. In such cases the Court has used a two step process.

First, a court “considers ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice at issue. . . . Second, a court must independently determine whether the punishment in question violates the constitution based upon precedent and the court’s ‘understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose.’”

As to legislative enactments the court took notes of numerous enactments including those allowing DNA test post conviction to test jury convictions. It pointed out that much of the purpose of our criminal laws is to prevent the imprisonment and execution of innocent people. Therefore Moore found that the Eighth Amendment requires the exculpation of innocent people post conviction. But it found that Troy Davis had not proved his innocence. This is not the last word. The decision will be appealed.

In a multi-defendant prosecution for bank fraud the government informed the defendants that it planned to use statements made by co-conspirators, but not to call them as witnesses. The statements would come into evidence under an exception to the hearsay rule which allows the admission of statements made during the pendency and in furtherance of a conspiracy.

The defendants requested the complete notes taken during the proffers of those co-conspirators who’s statements the prosecution planned to use during trial. The trial court refused their request.

The Second Circuit upheld the ruling in United States v. Shyne et al. Under the Jencks Act which governs discovery of statements made by witnesses in a Federal criminal trial the government is required to provide statements made by a witness after the witness testifies but before cross examination. The Second Circuit held that since the Jencks Act does not mention non-testifying witnesses the proffers of the non-testifying co-conspirators is not discoverable.

But the Jencks Act is not the end of the question. Constitutional mandates trump the Jencks Act. The appellants raised Fifth and Sixth Amendment objections and of course the biggest exception to the Jencks Act is the Supreme Court Decision in Brady v. Maryland. In Brady the court ruled that due process requires the prosecution to provide the defense with mitigating evidence in the possession of the prosecution. The prosecution provided the defense with a letter listing the various mitigating factors for each of the co-conspirators. Assuming that the letter provides all the needed information, it does not help the defendants get the information into evidence.

The court did not discuss Rule 106 of the Rules of Evidence which states:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

How can a defendant move to admit the entire statement or know whether or not an entire statement has been entered if he/she is not given discovery of the entire proffer which is in the possession of the prosecutor?

Is the Sixth Amendment requirement of a fair trial met if the prosecutor has the entire proffer while the defense only has a summary of those parts the prosecutor wants to give him/her?

Thomas A. Davis was convicted in the Western District of Michigan of possession of a weapon by a convicted felon. He appealed to the Sixth Circuit Court of Appeals on two grounds. First he argued that hearsay was admitted at trial and second he argued that there was insufficient evidence to convict him.

The evidence at trial showed that Davis and a friend spent several days joyriding in a rented Chevrolet Cobalt. On July 10, 2007 Ronica McIntyre saw Davis, who she recognized, in the vehicle with a gun. She called 911 because she was afraid of Davis who rumor had it had been involved in a murder.

She told the 911 operator that the car was a Ford Focus and that she saw two guns instead of the one she actually saw. She gave the operator the license tag number of the vehicle. Furthermore she told the operator that she had seen Davis five minutes before calling when the actual time lapse was one and a half minutes.

The following day an anonymous woman flagged down a Grand Rapids Police officer and told him that she saw the Cobalt, with the same tag number. She also saw Davis with a gun in the vehicle. Officer LaFave transmitted the information over the police radio, available to anyone who had a scanner.

Davis and his friends stopped the vehicle at a residence. Davis got out of the car and went inside. While in the residence, apparently, he learned that the police had been notified. They drove around some more and then traded the car for a PT Cruiser at Enterprise. The FBI notified Enterprise that if was looking for the Cobalt. The FBI followed the PT Cruiser and stopped the vehicle shortly after it left Enterprise. Davis was seen maneuvering something under the seat. The FBI search the vehicle and found a gun under Davis’ seat.

On appeal Davis claimed that the court erred when it allowed McIntyre’s 911 call and the anonymous woman’s report to Officer LaFave to be entered into evidence. He claimed that both statement were inadmissible hearsay. Hearsay is:

a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted

The Court found that the statements were not hearsay. It ruled that the anonymous woman’s statement was not offered “for the truth of the matter asserted.” Instead it was offered to explain Officer LaFave’s actions. The statement led to his placing the information on the police radio waves and therefore it could have been picked up by a scanner leading to the change in rental vehicles.

My question is whether the statement should have been excluded under Federal Evidence Code Section 403. Under Section 403 “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” If the statement was not being used for the truth of the matter asserted its probative value is minimal and by placing the gun in the hand of the Davis its prejudicial value is considerable. Therefore it should be excluded.

Upon request the trial court should have given the jury an instruction that the statement was not to be used for the truth of the matter asserted. There was no evidence before the appellate court that the request was made or that the instruction was given. If the request wasn’t made I would expect a habeas on incompetence of counsel grounds to be filed soon.

As to McIntyre’s statement, the court found it admissible under an exception to the hearsay rule for “excited utterances.” An “excited utterance” requires three elements:

First, there must be an event startling enough to cause nervous excitement. Second, the statement must be made before there is time to contrive or misrepresent. And, third, the statement must be made while the person is under the stress of the excitement caused by the event.

The court found that there was no question as to the first and third issue. As to the second issue McIntosh clearly had time to develop false information since she lied about the number of guns and how long it had been since she saw vehicle. But the court found that due to the short period of time between seeing the vehicle and the 911 call the statement was admissible as a excited utterance.

Likewise the court had little trouble finding that there was sufficient evidence for a conviction. It is very difficult to overturn a conviction on appeal on sufficiency of the evidence grounds. The test on appeal is whether looking at the evidence in the light most favorable to the government any rational juror could find Davis guilty beyond a reasonable doubt.

The court found that there was sufficient evidence. There is the evidence that McIntyre gave on the stand that she saw Davis with the gun and the evidence that the officer saw him maneuver items under his seat where the gun was found. The court found that a rational juror could use this information to find Davis guilty beyond a reasonable doubt.

Five years ago in Crawford v. Washington the Supreme Court held, in a decision written by Justice Scalia, that a defendant has the right to confront and to cross examine any prosecution witness who provides testimonial evidence. The only exception, and it is not really an exception is that statements made prior to trial, but under oath and subject to cross examination may be used at trial.

Yesterday, the Supreme Court reinforced Crawford. In Melendez-Diaz v. Massachusetts Scalia, writing for the majority, made it clear that Courts would be unable to try to weasel out of Crawford by finding evidence to be non-testimonial.

The case involved a Massachusetts statute which allowed a chemist’s certificate to be used at trial to make a prima facie showing, in a drug case that the seized substance is a particular drug. The Court ruled that the certificate, which it compared to an affidavit, was inadmissible testimonial evidence under the Sixth Amendment’s Confrontation Clause. Not only is it crucial evidence against the client but it was prepared in preparation for litigation.
Furthermore with the huge number of errors and the lack of scientific credibility for many forensic tests it is necessary to subject the chemist’s conclusions to cross examination.

The dissent claims that the chemist is not an accusatory witness and therefore the defendant need not confront him. But the Court’s opinion points out that the Sixth Amendment allows the defendant to confront all witnesses against him or her. Furthermore the dissent argues that the chemist is not a “conventional” witness. Scalia replies that it is immaterial that the witness is a scientist. He points to the large number of errors in forensic evidence. Nor is the Court concerned about any extra work that DA’s must perform to have live witnesses. When it comes to carrying out the will of the Constitution we are not concerned with extra work.

A couple of weeks ago we raised the question as to whether the U. S Attorney’s case against Barry Bonds for lying to the Grand Jury was based on inadmissible hearsay. It is alleged that Bonds lied to the grand jury when he testified that he had not knowingly taken steroids and he had not received any injections from his trainer, Greg Anderson. But now, according to The San Francisco Chronicle,, former San Francisco Giants catcher, Bobby Estalella has told FBI agents that Barry Bonds told him he used steroids. Estalella is now on the government’s updated witness list. At first glance Estalella’s testimony might appear to be hearsay. After all Bond’s conversation with Estalella was an out of court statement being used for the truth of the matter asserted. But under the Federal Rules of Evidence a party’s statement is not hearsay. And Barry Bond is certainly a party to his criminal case. It is also arguable that Bond’s conversation with Estalella was a statement against interest in which case it is an exception to the hearsay rule. But, assuming Bonds used steroids, it was not illegal at the time. It may also have been against his financial interest in that he could have lost his job. Considering all of the money Bonds has made from baseball I doubt this one would fly.

Another new witness for the government is Bond’s long time friend and personal assistant, Kathy Hoskins. Hoskins presumably will testify that she saw Bonds receive an injection from Anderson. While there is no evidence that the injection was steroids, Bonds testified before the Grand Jury that that he did not receive an injection from Anderson.

As to what effect this will have on baseball, we will leave to the sports writers.