Last year in Melendez-Diaz v. Massachusetts the Supreme Court ruled that the admittance at trial of a lab report without the testimony of its author violated the Sixth Amendment Confrontation Clause. But sometimes saying something once is not enough. In nearly identical facts to Melendez-Diaz the Supreme Court of New Mexico approved the admittance of a blood alcohol test when the New Mexico Court allowed the prosecutor to use the testimony of a chemist other than the one who performed the test but who was familiar with the methods used in the lab to explain the results.

So again in Bullcoming v. New Mexico the United States Supreme Court said that in order to enter into evidence a lab report without the testimony of the chemist who performed the test the chemist must be unavailable and the defense must have had a previous chance to cross examine the chemist.

The members of the first Congress who wrote the Bill of Rights and the states who approved the amendments felt, and for good reason, that the best way to test the validity of a witness was to subject the witness to cross examination. Perhaps if we were doing it today we would subject witnesses to lie detector tests ¹ but they relied upon the right of confrontation and that means the right to cross examine the chemist who did the test–not someone else.

In 1981 the Supreme Court in New York v. Belton upheld searches incident to arrest. The Eleventh Circuit like many other courts developed a rule in automobile searches allowing the search of the entire passenger compartment incident to the arrest of a passenger or driver of a vehicle.

Willie Gene Davis was a passenger in a vehicle in 2007. The car was pulled over and Davis was asked by a police officer to get out of the car. As he was getting out of the car he took off his jacket and left it in the car. The officers asked Davis his name and he gave a false name. After discovering his correct name the officers arrested him, handcuffed him and put him in the police car for giving false information to a police officer. Then they searched the vehicle and found a gun in his jacket. He was charged and convicted for possession of an illegal weapon.

While his case was on appeal the Supreme Court decided Arizona v. Gant in which it corrected the interpretation of Belton. The Court made it very clear that the police could only search, absent a danger to the police officers or others, those areas accessible to the arrestee. Since Davis was handcuffed and in the police car at the time of the search he did not have access to the interior of the car he had been a passenger in and the search of the vehicle was illegal.

But the Eleventh Circuit ruled that while the search was illegal the evidence found in the vehicle was still admissible. While the general rule is that evidence illegally seized is inadmissible at trial this exclusionary rule has many exceptions. In most cases evidence seized in good faith is admissible at trial whether or not it was illegally seized. The Eleventh Circuit ruled in United States v. Davis that at the time of Willie Gene Davis’ arrest the law was clear that the officers could search the passenger compartment. The officers acted in good faith in searching the vehicle and therefore the exclusionary rule should not be applied. The Supreme Court has said on numerous occasions that the exclusionary rule is not constitutionally mandated and that its purpose is to deter police misconduct and since the search of the vehicle was done pursuant to then current Eleventh Circuit decisions misconduct was not involved and excluding the evidence would not effectively deter future misconduct.

But let me give an alternative reason to exclude the evidence. I do not believe that the founders of this nation would have approved of the introduction of illegally seized evidence. After all many of the members of the first Congress and the state legislatures who enacted the Bill of Rights participated in or at least approved mob actions which closed or threatened to close the court in many jurisdictions when the courts tried to enforce English rules expanding the right of the government to search individuals

The rule of law requires that illegally seized evidence be excluded. Why should the government be able to benefit from illegally seized evidence. To allow the use of illegally seized evidence to convict a citizen or an alien for that matter only encourages illegal action and discredits the rule of law.

Friday, we looked at Florida v. Powell in which the Supreme Court looked at a version of the Miranda warnings that did not clearly state that an arrestee had the right to have an attorney in the room with him/her while being interrogated while in custody.

Today we look at whether the Supreme Court should have considered Powell in the first place. Powell is an appeal from the Florida Supreme Court which ruled the version of the Miranda warnings used by the Tampa police is unconstitutional. The version used by Tampa police states:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview

The Florida Supreme Court held: “[b]oth Miranda and article I, section 9 of the Florida Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning,” and that the warnings given to Kevin Dewayne Powell did not satisfy either the State or the Federal Constitution.

The question is whether the Florida Supreme Court found “independent state grounds” to reverse Powell’s conviction. The Bill of Rights guarantees certain rights. For the most part these rights, under the Fourteenth Amendment, are binding upon the states. But nothing in the Constitution or the Bill of Rights limits the states from granting its citizens greater rights than are guaranteed in the Constitution. For example while the Supreme Court may have found the Tampa version of the Miranda warnings sufficient to protect Fifth Amendment rights against self incrimination, the Florida Supreme Court has every right to hold the Tampa version of the Miranda Rights insufficient to protect rights granted in the Florida Constitution.

On remand the Florida Supreme Court has every right to say that confessions made after being read the Tampa version of the Miranda inadmissible as a violation of the Florida Constitution. Therefore the Supreme Court as a rule refuses to consider cases where the state court has ruled on the issue and found that it violates the state Constitution. The Florida Supreme Court like any other state court may find that a particular act violates both the state constitution and the Federal Constitution as the Florida Supreme Court did in this case, according to Justice Stevens in his dissent. But since the Supreme Court decision will not have any effect upon Powell if the Florida Supreme Court finds that Powell is protected under the Florida state constitution, the Supreme Court does not take cases where

[t]he state court ‘make[s] clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached.’ . . . [T]he real question is whether ‘the adequacy and independence of any possible state law ground is … clear from the face of the opinion.”

The U. S. Supreme Court’s majority opinion written by Justice Ginsburg, and joined by every justice except Stevens, states that

the Florida Supreme Court treated state and federal law as interchangeable and interwoven; the court at no point expressly asserted that state-law sources gave Powell rights distinct from, or broader than, those delineated in Miranda

But as Justice Stevens points out that the Florida Supreme Court said that the Tampa version of the Miranda rights under neither the United States Constitution or the Florida Constitution provided the arrestee with sufficient notice that he/she could have an attorney present during any interrogation it implicitly stated that there are independent state grounds for excluding the confession under the State Constitution. Therefore the Supreme Court’s decision is no more than an advisory opinion and the Court should not have accepted the case.

This is the type of activism that members of the majority would reject under other circumstances. The Supreme Court, they would argue, should only accept cases where their opinion would mean something and where they were not interfering with the State Courts rulings on state law.

Attorney General Eric Holder announced that five detainees, including alleged 9/11 mastermind Khalid Shaikh Mohammed will be tried in New york City and another five will be tried by military tribunals, including Abd al-Rahim al-Nashiri, who is accused of planning the bombing the U. S, navy destroyer, the USS Cole in Yemen.

The trial of Mohammed promises to be the biggest trial since the OJ trial. It carries risks and benefits for the United States. The difference between military tribunals and trials in the United States District Court is that a District Court trial must follow all of the rights found in the Bill of Rights, while the defendant’s rights are more limited in a trial before a military tribunal. Specifically the Supreme Court has ruled that testimony obtained by torture or coercion cannot be used in a court but it is permissible before the military tribunals.

Some family members of those who died and conservative Republicans argue that terrorists do not deserve the same rights as American citizens. But by giving terrorist the same rights as we give to others accused of crimes we exhibit our belief in our judicial system and our humanity. What if some of the detainees are innocent. We believe that people are innocent until proven guilty and none of the detainees have been proven guilty in a court of law. Certainly innocent people deserve the full benefit of our laws and the Bill of Rights.

But there are certainly risks involved. It may lead to further terrorist attacks on New York City. They may come on the day set for trial, the day the verdict comes down or on the date of sentencing. While the world may admire our Bill of Rights it will not admire the death penalty if the defendants are convicted. Some may say the death penalty is as barbaric as some of the terrorist acts. Furthermore the government will be rightly blamed for bringing Abd al-Rahim al-Nashiri to trial before the tribunal and not in a court of law. The use of testimony obtained through torture will and should be condemned. Furthermore, the use of the death penalty may make the detainees martyrs in many parts of the world and lead to revenge on the United States.

The Bill of Rights, various other provisions of the Constitution, Congressional legislation and Court interpretations of these documents set certain rights that people in the United States enjoy. While a state cannot take away a right guaranteed by the Constitution or the Supreme Court it can grant people who live in the state greater rights than are guaranteed by the Federal government.

For example, in Miranda the Supreme Court ruled that Courts can only use statements made in response to interrogation by a person who was in custody at the time the statement was given if the person was warned that they have a right to remain silent, that anything they say may be used against them, that they have a right to an attorney and that if they cannot afford an attorney an attorney would be appointed for them. There are exceptions to the rule but the generally the rule remains in effect. But states can give greater rights.

For example, under Article 38.22, Section 2(a) of the law of the State of Texas the accused must be warned that:

(1) he has the right to remain silent and not to make any statement at all and that any statement he makes may be used against him at his trial;

(2) any statement he makes may be used as evidence against him in court;

(3) he has the right to have a lawyer present to advise him prior to and during any questioning;

(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and

(5) he has the right to terminate the interview at any time.

Furthermore, and maybe more importantly, Section 3(a) of the law requires:

First, “an electronic recording” of the statement must be made. (12) Second, “prior to the statement but during the recording the accused [was] given the warning in Subsection (a) of Section 2 . . . and the accused knowingly, intelligently, and voluntarily waive[d] any rights set out in the warning.”

The requirement that the statement be taped is crucial for all. It prevents unnecessary trials when a defendant realizes what the jury is going to hear and encourages guilty verdicts. At the same time it keeps the police honest.

In Nguyen v. Texas The Texas Court of Criminal Appeals ruled on an appeal from the State of Texas in a matter interpreting Article 38.22.

At 4:00 am Dallas Police Officer Vance Johnson stopped a car driven by Nguyen for traffic violations. Michael Sanchez, the owner of the car, was a passenger in the vehicle. Johnson asked for permission to search the vehicle and Sanchez gave him permission. After finding methamphetamine in the car Johnson arrested Sanchez.

Sanchez waived his Miranda rights and told the officer that the methamphetamine belonged to Nguyen. Johnson arrested Nguyen for the traffic violations. Johnson gave Nguyen partial Miranda rights which did not comply with Article 3822 Johnson attempted to interrogate Nguyen but he asserted his right to an attorney. Not surprisingly, Johnson decided not to interrogate Nguyen.

The officers put both men in the back seat of Johnson’s vehicle. Without telling Sanchez and Nguyen their conversation was taped. Sanchez begged Nguyen to take responsibility for the drugs and Nguyen eventually agreed. He called Johnson, but Johnson was too busy searching Sanchez’s vehicle to pay attention.

Johnson returned to the police car. Sanchez told him that the drugs belonged to Nguyen. But Johnson, rightly remembered that Nguyen invoked his Miranda rights and refused to question him. Sanchez said he would not go down for “Nguyen’s shit.” Nguyen stated that he was charged with the same thing as Sanchez. Johnson corrected him and said he was only charged with traffic violations. Nguyen said that the drugs did not belong to either of them. Sanchez started yelling at Nguyen urging him to take responsibility. Johnson went back to searching Sanchez’s vehicle.

Sanchez continued to beg. Nguyen gave in again. Sanchez called Johnson and Nguyen reluctantly told the officer the methamphetamine was his. Sanchez was allowed to get out of the police vehicle. Nguyen was crying. Johnson found an ecstacy tablet in Sanchez’s vehicle. Sanchez was arrest for the ecstacy.

Nguyen was convicted of hindering apprehension. The Fifth Court of Appeals reversed and the state appealed to the Court of Criminal Appeals.

The state argued that since the officer’s violation of section three came prior to Nguyen alleged illegal acts (hindering) the statements should not be excluded. The Court disagreed. Section 3822 is a procedural evidentiary and rule and there is no exception in it for crimes committed after the officer’s violation.

Second the state argued that the statement should be admissible because at the time the statement was given Nguyen was in custody for vehicle violations, not for hindering. The Court found that a person is in custody when either they are arrested or their movement is restricted. Thus even if Nguyen had not been arrested for hindering his movement was restrained and therefore he was in custody.

Finally the state argued that Nguyen’s statements were not offered for the truth of the matter asserted but the plain language of the statute is to the contrary. It says:

“No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless” the five statutory conditions are met.

The Court of Criminal Appeals confirmed the Court of Appeals decision reversing the conviction.