The Jail House Snitch

There is no lower form of testimony, of evidence. Yet, it is one of the most prevalent kinds of evidence in criminal cases. Police rely on jail house informants to make arrests, prosecutors rely on the evidence to obtain convictions, and appellate courts routinely uphold convictions when jail house informants testify against the defendant.

Even though this type of testimony should be viewed through the most critical lens, it is still relevant and admissible at trial.

What is a jail house informant? An incarcerated person who testifies against another incarcerated person based on conversations the two had.

As a prosecutor, I frequently received letters from inmates telling me they had "information" on a case I was prosecuting. The correspondence was always in a handwritten envelope and letter from the correctional facility. The author provided me just enough details to pique my interest, but not enough to vet the accuracy of any alleged confession.

There were a few steps required when receiving a letter like this:

1) Check whether the proposed informant had access to the defendant I was prosecuting to even have the ability to obtain a confession.
2) Check why the proposed informant was in custody. Did he have an attorney because he had pending charges?
3) Set up a meeting.
4) Investigate the information.

I was always a hopeful skeptic at these meetings. No prosecution should be built based solely on the testimony of a jailhouse informant, but additional evidence never hurt. The key to these meetings was to obtain details of the conversations between the informant and the defendant. Details were the key. Anyone could come in and say, "Johnny told me he killed that guy." What did Johnny the defendant say about how he did it, about where he hid the evidence? I was looking for the details that were not reported in the media or not elicited in court. I needed details only the culprit would know.

Ninety percent of the time these meetings proved to be a waste. The informant either did not have enough information or I could not help the informant enough in their requests. This was a quid pro quo after all. If I wanted the informant's testimony, I needed to give him something. Did he want to plead to a lower charge? Have his case dropped totally? Commute his sentence? If I wanted the testimony, I could usually negotiate a plea deal for the informant. But I never did, and never wanted to, drop charges or attempt to get a person out of their sentence.

Another reason the potential testimony failed? Discovery. If the defendant had already received his discovery and his or her attorney had provided him a copy, how could I prove the defendant's confession came from his mouth as opposed to facts the informant put together from the police paperwork.

When a prosecutor makes a deal like this, there is always a stain on the case and even on the prosecutor depending on how good the deal was. The defense attorney would say, "Look at the evidence. Look at the witnesses. The informant holds a gun to a little old lady and takes her purse. He gets a slap on the wrist as long as he will say what the prosecutor wants." I only used jail house informant testimony if it would be window dressing on an already solid foundation of a case.

There is also a legal analysis required. A person has a Sixth Amendment right to have an attorney present for all questioning by authorities. In New York State, this right attaches, and cannot be waived, when a person is formally accused of a crime. Essentially, the informant cannot have been acting as an agent of the police at the time he obtained the information from the defendant. It does not matter that he was doing it purely in his own self-interest with the intention of going to the authorities. The only rule is that he cannot have been doing it at the direction of law enforcement. A judge is required to conduct a Cardona hearing to determine if the informant was acting as a law enforcement agent or not. The minute the informant approaches law enforcement and volunteers to tell them about his conversations with the defendant, he is an agent. Therefore, any conversations obtained following the informant reaching out to the prosecutor or police will be inadmissible.

Once an informant gets a deal for testifying against a defendant, the odds are the informant will appear just about every time they get arrested. They know that they can get lower charges and sentences just by getting information for the police. We used to call these guys professional snitches. They know the game, the system, and the laws so well that they have the ability to say whatever is necessary to save their own neck. It is an even lower form of evidence than an informant used one time.

A good defense attorney can destroy informants on cross and a prosecutor should never rest his or her case on only this evidence. But just because this testimony has drawbacks, doesn't mean it should never be used. As a legendary prosecutor in my old office once said in his closing argument, "If you play around in the sewer long enough, you're going to become friends with some rats."

By the way, the case that gave rise to that quote was reversed for prosecutorial misconduct for improper comments on summation.

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The Prosecutor's Decision

On Monday, I posted a hypothetical fact pattern based on different cases we see in my office. Check it out here.

This is a difficult case as it is laid out. There were many comments and emails from readers with good questions and suggestions on what type of evidence should be collected.

Let me put what the prosecutor looks at. If these are the only facts, we cannot prove the case beyond a reasonable doubt. The police have probable cause to arrest based on the witness statements, but it is not even clear the case would survive grand jury. With just these facts, the question arises of whether we should prosecute the case. Is this the case where innocent men might be convicted? If we choose not to go forward, how do we tell the victim?                                

Prosecutors receive cases like this every day. It's called an incomplete investigation. We are not investigators, but many time the prosecutors have to pick up where the police left off. Once police officers put the cuffs on, they move on to the next case.

One suggestion was to get the Facebook messages between the victim and boy she was talking too. That is the first thing I would do. Then, I would find out where the boy posted his messages from. A cell phone? We would obtain a search warrant for the cell phone to get the messages. Does the boy's Facebook page contain a video? Then, we can access his videos on his phone through the warrant too. Maybe these boys took a video of the incident which would show what happened.

If the victim reported the crime early on, we would obtain a search warrant for the house where it occurred to try and find evidence too.

Every investigation starts with obtaining some evidence and then any good prosecutor follows all the leads from that piece of evidence. One of my mantras is that every file has the potential to turn into numerous files. A gun case means we might be able to find out who sold the gun to the person. One robber probably did more in the area. If we get a cell phone of a rape, there is a good chance more exist on there.

It creates a never ending cycle.

Once we exhaust the possible evidence, we can make the decision. Again, if no other evidence existed but the victim's word this case would be difficult, if not impossible to prove. Those are the worst conversations with victims. They were robbed or raped and are certain we have the right person, but there is nothing to corroborate the identification. With what we know today about DNA and wrongful convictions, can I as a prosecutor justify the prosecution of that person? Does the victim deserve their day in court?

This is the cases we must decide every day. Prosecutorial discretion is a great power that we need to wield responsibly and still respect the rights of the victims. There are rarely easy choices in this line of work.

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Make the Prosecutor's Decision

A girl meets a boy on Facebook through a mutual "friend." She thinks he's pretty cute so she decides to send him a message. He accepts the friendship and invites her over to his house. Welcome to teenage dating in 2014.

You're already thinking to yourself that this kind of story can only have a romantic ending, right?

The girl goes to the boy's house in the middle of the day. She knows she's meeting up to have sex with the boy. It's just the way things go where she grew up. She goes in the house and her and the boy partake in the agreed upon acts. But this is where it starts to go wrong.

The boy's friends are all in the room and they decide to have sex with the girl too. She protests, after all she did not sign up for this, but the boys do it anyway.

The girl calls the police once the hours long ordeal is over. She wants the boys arrested and charged with rape. The boys are all interviewed and claim she consented to the group sex. It was why she came over.

Essentially we are left with her testimony versus the boys statements. She admits to consensual sex with the first boy, but says it quickly became nonconsensual and it definitely was not consensual with the other boys. If we can prove the charges, it is definitely rape. The police call me as a prosecutor and ask, "What should we do?"

These are the types of situations we face every day. Can we prosecute this case? Should we prosecute this case? Check back on Wednesday for a view into how we decide what to do and how to do it.

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Should Phone Carriers Be Required to Save Texts?

Courtesy of DamnYouAutoCorrect

CNET is reporting that law enforcement officials throughout the country are asking Congress to mandate how long cellular phone providers store text messages.

Understandably, people from both sides of the aisle are crying about the invasion of privacy and how the country is continually transforming into a police state.  Dear readers, I am hereto calm your fears and let you know that all will be well in the world no matter what happens.

Here's the rules of the game as they exist right now.  Phone companies keep your call records for as little as 6 months and as much as 7 years depending on the provider.  These records are who you call, who calls you, how long the call lasts, and the pedigree information you gave to sign up for the phone.

To obtain copies of these records the police must seek a subpoena.  The police bring the case to the district attorney's office, where it is screened by an ADA.  The ADA decides if there is enough to open a file and begin a formal investigation where subpoenas are required.  The subpoena is not reviewed by a judge for probable cause prior to sending it.

Text messages, voicemails, emails, and other phone content is not included in this subpoena.  In New York, a person is considered to have greater privacy in this information so the court requires the police to seek a search warrant.  This is a sworn document or testimony requiring the police to lay out their evidence to the judge and show reasonable cause to believe they will find some evidence of a crime in those materials.  If there is, the judge will grant the search warrant.  If not, the judge does not grant the warrant.

According to the CNET article, 6 billion text messages are sent a day.  That is an incredible amount of data that requires tons of storage, which is why most companies do not save any text data past a few days.  The police and prosecutors are at a disadvantage due to this.

If we find out about text messages at the time the crime occurs, say a DWI accident where the driver was texting, we can send a letter to the cell phone provider demanding they preserve the text messages.  This does not give us the right to look at the messages, but puts the company on notice to save the messages from deletion so that we can make an application for a search warrant.

What about the case that takes months to develop?  A murder conspiracy that gets solved through DNA testing or any other case where suspects don't arise for months or years after the crime?  Well, in current times, those text messages are gone forever unless some person saved them on their phone.  Even if they have probable cause to believe there is evidence of the crime in the text messages, the police cannot retrieve possibly devastating evidence.

Every criminal statute and privacy invasion law comes down to balancing.  Does the need for the statute or law outweigh the invasion of privacy?  Should phone companies be required to keep text messages in case they are needed to investigate a crime?  Or is this a step in the direction of big brother that is ripe for abuse?  Every law that is passed that expands police powers, it is open for abuse.  But Congress figures the overall benefits of finding and prosecuting those responsible for heinous crimes outweighs the possibility of abuse.  Is this the same situation?  Or as a society do we consider our texts more sacred and private than the records of who we call?

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Dying Declarations

Hearsay is not admissible evidence at a trial.  Unless, of course, it is admissible evidence.  I've discussed a little bit about hearsay before in terms of the right to confront witnesses against you.  I wanted to discuss dying declarations in light of my last post about the murder of Maria Rudolph.

In that Illinois case, a key piece of evidence was a deathbed confession of the murderer's mother.  She told her daughter that she knew her son killed Maria and that she had lied to the police to cover for him back in 1957.

It's a great jumping off point to re-open an investigation.  But how exactly can this statement come into evidence at trial?

The problem with hearsay is the inability of a jury to judge the credibility of the person who said the statement.  The person who said it is not called at trial and thus not exposed to cross-examination.  Anyone can make something up.  I can say that my brother told me he broke the window with a bb gun when we were kids.  But should he really get in trouble for this because of my hearsay testimony?  (Note:  I broke the window and confessed to my parents a few years ago).

So the rule is that hearsay is inadmissible, unless there is an exception.  A dying declaration is one exception.  A dying declaration is when a person identifies their killer under the belief they are dying.  The belief is that a person is more likely to tell the truth under the psychological pressure of imminent death and the fact they are about to meet their maker.  There are certain criteria that must be met for that type of statement to be admissible:

Under the Federal Rules of Evidence:
1) The declarant must be unavailable to testify (due to his/her actual death most likely),
2) the prosecution must be for a homicide or in a civil case,
3) the declarant (person injured) must believe their death is imminent when they make the statement, and
4) the statement must be about the cause of the death (who did it) or its circumstances.

In New York State:
1) The declarant must be unavailable to testify because he died due to the action,
2) the prosecution must be for a homicide case,
3) the declarant must believe their death is imminent when they make the statement, and
4) the statement must be about the cause of death or its circumstances.

The main difference between New York rules and the federal rules is that in New York, the victim must actually die before the statement is admissible.  Under the federal rules, the victim must be unavailable, but does not have to die as a result of the injury inflicted.

Are you seeing the problem with the Maria Rudolph case?  The defendant's mother made a dying declaration about her own lies and knowledge that her son committed a murder.  The statement was not about her own death (she did not die by homicide).  It is not a dying declaration under the law.  The question becomes how did this statement make it into evidence at a trial?  The first part, that her son did it seems to be speculation.  The second part that she lied to cover for him is definitely hearsay.

One of the most important jobs a lawyer has is to figure out how to get crucial evidence into the trial.  Good trial lawyers usually have two or three ways to get the evidence in.  But this one has escaped me. I don't see any way this testimony should have made its way into the trial.  It might be considered an admission, meaning where one of the parties in litigation makes a statement to their detriment.  But it doesn't seem like it because mom wasn't relating what she was told by her son, only her involvement.

Hearsay also acts like the childhood game telephone.  This is where a group of kids sit in a circle.  One child whispers a statement to another child and that statement is repeated to each successive child.  Once it gets back to the original child, the statement has always morphed into something else.  It's the same danger with hearsay upon hearsay.  There is a legitimate fear that the more links in the hearsay chain, the greater the chance to distort the original statement. 

Obviously, I only possess the media reports about the case so there is most likely details I am not privy to.  But if these details are the true facts, I don't see how mom's deathbed statement came into evidence.

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Confronting Confusion

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

U.S. Constitution, Sixth Amendment (emphasis added).

They are only eight words.  Eight words that mean a defendant has a right to see his accusers testify.  Clear.  Simple.  Concise.

And that is why you have lawyers.  We can help to confuse anything.

This is called the confrontation clause.  It's what stops prosecutors from placing witnesses on the stand to say what they heard on the streets.  Or from police officers just reading witness statements.  A defendant has a guaranteed right to have their attorney cross-examine witnesses.

What's that you say?  What about hearsay?  It's always allowed in evidence.  Hearsay is a person's statement outside of the witness stand that's being offered into evidence to prove a truth.  Most often this is in the form of what one person told another.  Hearsay is inadmissible in court because hearsay statements are generally unreliable and the confrontation clause guarantees the right to confront your accusers.
But there are so many exceptions to the hearsay rule that we don't have enough room to discuss them all.  Examples:

Admission - Defendant confesses to the police.
Dying declaration - Victim, thinking he was close to his last breath, points at Johnny and says "Johnny did it."
Statement of Intent - "Bill said he was going to the store."
Excited Utterance - immediately after a robbery a witness shouts at the police, "Sal pulled the gun on me.  He stole my stuff!"
Business Records - Documents made in the regular course of business, like phone or bank records.

These are all exceptions to the hearsay rule.  The number of exceptions began to overwhelm the rule.  That was why the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004) ruled that any out of court statement (hearsay) that is testimonial is not admissible unless the declarant (person who made the statement) is available to testify at trial.  Whew.  So what does that mean?

Is a 911 call testimonial?  Is a certified lab report that says a substance is cocaine testimonial?  What if one analyst swabs a gun for DNA and then turns it over to another analyst to analyze the DNA?  Do we have to call both analysts?  What if it was sent to a private lab?  Do we have to call the driver of the truck who transported it?  The person who signed it into the lab?  The person who keeps the freezers at the correct temperature?

How far does testimonial go?  It's a trial.  Everything is testimonial., right?
Courts have struggled to determine what evidence is testimonial and what is non-testimonial.  The Supreme Court tried to help two years later in Davis v. Washington, 547 U.S. 813 (2006).  This case concerned whether a 911 call was testimonial.  The Davis Court said that it was not testimonial because it was not a police interrogation about past events, but a response to an emergency.  It was a non-testimonial excited utterance and thus admissible.

The main problem prosecutors find with the confrontation clause is when experts testify about pieces of evidence.  This is especially true in major cities where many hands will touch a piece of evidence and only one person will be called to testify about it.  Also, many communities send their materials to a private lab for testing.  The employees leave that lab for different jobs in different cities, or the labs don't have the same protocols as state sponsored labs.  It becomes financially onerous and sometimes impossible to discover each person.
The Supreme Court just upheld a rape conviction in Williams v. Illinois, In this case, the state sent out a piece of evidence for DNA analysis.  A private lab performed the analysis and sent it back.  Then a DNA analyst for the state compared the private lab results to the defendant's DNA and determined it was a match.  No one from the private lab was called to testify at trial.  The analyst testified about the private lab's report.

On it's face, it appears to violate the confrontation clause.  One witness is testifying about what another witness did.  But the Supreme Court decided this was fine and admissible.  It was not testimonial or hearsay because it was not being offered into evidence to prove it was true.  It was being offered into evidence to prove it was a match to the defendant.

Okay.  So, now we are all confused.  Especially you non-lawyers.  This is an overly simple analysis of an almost one hundred page decision, but we can all see the point.  For a document that is over two hundred years old, the Constitution is still evolving.  The rules of the game change every year.  Unfortunately, what might have been valid law at the time of trial may change by the time the Supreme Court hears the case years later.

Then, we do it all over again under the new laws.  My rule of thumb is to call all the witnesses in the chain, if I can find them.  If not, then I think of arguments why it doesn't violate the confrontation clause.

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Uh-Oh

It happens.  We're all human.  We all mess up.  Overlook something.  Forget something, or just plain miss the big picture sometimes.

Disclaimer - the facts of this case allege a child rape.

The New York Court of Appeals just decided a case last week that explains what happens when a prosecutor uncovers their error in the middle of trial and tries to correct it in People v. Kelley,
It was a sexual assault case, a father raping his daughter.  The police collected the victim's underwear, bedsheets, and a towel that was supposedly used for the defendant's semen.  The underwear contained male DNA, but it wasn't the defendant's DNA.  It was an unknown male.

The prosecution was going to trial without testing the towel.  It appeared to just be an oversight.  Either the prosecutor didn't know the towel existed, thought it was already tested for DNA, or forgot about it.  So the defense at trial was that yes the girl was raped, but it wasn't the defendant.  Look at the DNA on the underwear.  It's not his and that shows he's innocent.

During the trial, the prosecutor had the towel tested.  The results came back after the defense attorney put forth his defense and the defendant testified.  The towel contained semen and the DNA matched the defendant's DNA.  But the female DNA on the towel wasn't the victim's.  Now there was corroboration for the victim's version of events.  And the defense theory of the case?  This blew it out of the water.
The trial judge allowed the evidence into trial over the defense objection that his client's right to a fair trial was impaired.  The defendant was convicted and appealed.  The Court of Appeals reversed.  They said that the proper ruling should have been to preclude the evidence at trial or to declare a mistrial and start over.  The defense theory of the case was irreparably harmed due to allowing the evidence in the middle of the trial.  The trial was too far along to call it a harmless error.

One Justice dissented, stating that the trial court acted property because the late testing was not a deliberate strategic act, but a simple oversight. 

It doesn't matter though, because the Court of Appeals has spoken and the case must be retried.  The daughter must testify against her father again in Court.

I empathize with the prosecutor.  Every one of us makes mistakes that affect a case.  We're human.  It's a difficult phone call to make to a sexual assault victim.  The call that she has to go through it again. 

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Crime Scene Reality

It was a moment of weakness. I'm here to confess. I probably could have avoided it, but it felt so good.

For about five minutes.

C.S.I. played on my television screen on Thursday night. For most people, this is a time to relax and unwind and let some sensational events sweep you away for one hour.

For me, it's a time of stress I try to avoid. My wife had the television tuned to the show and I figured an hour relaxing sounded great. I should have known better.

Shows like this leave an indelible imprint on the viewer whose only connection to police work is these shows. The viewers are citizens. These citizens become jurors. I meet the jurors in the courtroom and have to battle against their preconceived notions of what type of evidence my case should have. I also have to battle against their desire to interpret evidence based on what they've seen actors do on television.

So how is C.S.I. different from the reality of police work? Let's take the episode I just watched where a man was recently released from jail for manslaughter. He finds his daughter has taken up with some gang members and allegedly kills two of them to exact revenge. He ends up dead himself, until medical personnel bring him back from the dead after being shot in the head. He then hijacks a medical helicopter to Mexico.

Sounds like just a normal day at the office. Here are a few differences:

1) Pristine crime scenes don't exist. In the show, each crime scene is manicured awaiting C.S.I. detectives arrival. Think about a 911 call. Shots fired in a house. Officers respond to the house and enter. They search for injured parties, possible suspects, and are making sure no one takes a shot at them. Once the sweep is performed and the area is secure, officers then look for evidence of a crime. You can imagine the condition of a crime scene once people have fought, someone was hurt, shots were fired, and now officers have walked through it.

2) What you see is not what you get. A C.S.I. detective on the show is actually a combination of at least four different people - the first responding officer, the lead case detective, the crime scene personnel who collect the evidence, and the scientist who analyzes it. These are four distinct jobs done by four different people, each requiring specialized skill. You would never see the scientist who analyzes the DNA also interviewing the suspect. Or the officer whose only training was the police academy looking through a microscope for hairs. DNA comparisons and autopsies are conducted by scientists and doctors with advanced degrees.

3) It is difficult to obtain a DNA sample from an item. If we do, it is weeks after the crime happened. Then it takes weeks to compare the DNA obtained from the evidence to a person's known DNA sample to determine if it is a match. Also, there is no national databank with every person's DNA on file. If there is DNA on a piece of evidence, we won't know whose it is unless we already have a suspect's DNA. If the person was never convicted of a crime or is unknown, then we will not have a match. On the show, they had a DNA match to a pool of blood within minutes.

4) The crime scene detectives are never the first officers on a scene. They get called once an officer or supervisor determines there is evidence that needs collection and processing.

5) Some of the technology they use doesn't exist and if it does, local law enforcement doesn't have access to it. Video enhancements so accurate that a video taken from one thousand feet away can be enhanced for a clear view of a suspects face? A hologram machine that recreates a skull based on a tiny fragment of bone? Even some of the technology that does exist is too expensive for police department budgets.

Maybe I should just enjoy these shows for their entertainment value. The producers are looking for entertaining television after all, not a police procedural manual. No matter my intent when I start to watch them, I find myself correcting mistakes and complaining about techniques. This is probably the reason my wife only watches those shows when I'm not around.

So does C.S.I. really affect a jury?

Despite my personal feelings on C.S.I. and others, I'd argue that they aren't the main reason that jurors have heightened expectations for evidence in a case. We can just look to the phones people carry around. They can call, email, text, navigate, speak different languages, pay for items, and play music. The more sophisticated a person's technology, the increased scientific testimony they will expect. A person thinks that if they have all of this technology in the palm of their hand, the government must have incredibly advanced instruments.

It's a reality all attorneys are dealing with.

As attorneys, how do you deal with juror's expectations regarding evidence? As potential jurors, what kind of evidence are you expecting to see?

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