Recent Developments in Criminal Law and Procedure
| Publication year | 2014 |
| Author | By Eric Ganci |
By Eric Ganci
Eric Ganci is an owner and DUI trial lawyer with Galente Ganci, APC. He is trained in blood testing for drugs and alcohol, trained on breath testing, and trained to train police on field sobriety tests. He has authored Thomson West Publications regarding DUI science and law. He received his JD from Thomas Jefferson School of Law, his BA in Music Education from Northern Illinois University, and graduated from the Trial Lawyers College in 2013.
Below is a compilation of some key criminal law cases from the California courts and the United States Supreme Court in late 2013 and early 2014. It's always interesting to see and track how quickly (and drastically) criminal law and procedure can change.
On May 27, 2014, the United States Supreme Court decided the case of Hall v. Florida.1 In Hall, the Supreme Court held that use of any scientific and mathematical testing in criminal cases must use ranges of uncertainty. In light of the Constitutional limitations on imposing the death penalty on persons with intellectual disabilities (as held in Atkins v. Virginia2), Hall addressed Florida's use of IQ testing in the death penalty cases. In Florida, there is a strict cutoff of 70. If the defendant has an IQ below 70, the State cannot sentence him to death. Hall had scored 71 on an IQ test, and was sentenced to death.
The Court stated that a range of uncertainty is "one of the most important concepts in measurement theory...."3, and that any scientific number is imprecise and only represents a range rather than a fixed number.4
The Court explained using a "standard error of measurement" (SEM) (which the Court noted was distinct from "standard deviations") to determine a "true number."5 "A test's SEM is a statistical fact, a reflection of the inherent imprecision of the test itself."6 "The SEM reflects the reality that an individual's intellectual functioning cannot be reduced to a single numerical score. For purposes of most IQ tests, the SEM means that an individual's score is best understood as a range of scores on either side of the recorded score. The SEM allows clinicians to calculate a range within which one may say an individual's true IQ score lies."7
Hall is obviously important for any scientific cases, such as DUIs.
On April 22, 2014, the U.S. Supreme Court decided Navarette v. California.8 I'll start with how in his dissent,9 Justice Scalia framed the majority's holding: "So long as the caller identifies where the car is, anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop."10
The facts: An anonymous tipster called in Defendant's truck, saying "the truck had '[run her] off the roadway....'" Mr. or Ms. Tipster told 911 the car was a silver Ford 150 pickup, with the license plate 8D94925. CHP located a truck matching this description, and followed the truck for 5 minutes without seeing any traffic violation. CHP pulled over Defendant for suspected DUI, approached his truck, smelled marijuana, searched the truck, and found 30 pounds of marijuana.
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No DUI charges are filed, but Defendant is convicted of transporting marijuana.
The first major issue is whether this is a valid traffic stop under the Fourth Amendment. In a 5-4 decision, the U.S. Supreme Court held it was valid, because the tip "bore adequate indicia of reliability" and that "the timeline of events suggests that the caller reported the incident soon after she was run off the road[,]" and thus was more reliable.11
The next issue was whether there was criminal activity afoot, as required even if the tip is solid. "Even a reliable tip will justify an investigative stop only if it creates reasonable suspicion that 'criminal activity may be afoot.'"12 "We must therefore determine whether the 911 caller's report of being run off the roadway created reasonable suspicion of an ongoing crime such as drunk driving as opposed to an isolated episode of past recklessness."13 The Court held it created such reasonable suspicion. So, "the behavior alleged by the 911 caller, 'viewed from the standpoint of an objectively reasonable police officer, amount[s] to reasonable suspicion of drunk driving.'"14
Justice Scalia wrote a well-stated dissent. Here's a taste: "The Court's opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police."15
If you hear this from the United States Supreme Court in a case you tried, it's not good: "An attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland."16 Ouch.
Hinton was convicted of murder. One issue at trial was where the .38 caliber bullets came from, and whether the People could connect those to Mr. Hinton. But the issue on appeal stemmed from Hinton's claim of ineffective assistance of counsel, arguing that his attorney did not the law. The Court stated it was absolutely "ineffective to not seek additional funds when it became obvious that the individual willing to examine the evidence in the case for the $1,000 allotted by the court was incompetent and unqualified."17
After conviction, "Hinton produced three new experts" with substantial experience and expertise. "All three experts examined the physical evidence and testified that they could not conclude that any of the six bullets had been fired from the Hinton revolver. The State did not submit rebuttal evidence during the postconviction hearing...."18
The Court addressed the obvious Sixth Amendment issue: "[T]he Sixth Amendment's guarantee that '[i] n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence' entails that defendants are entitled to be represented by an attorney who meets at least a minimal standard of competence."19
"[W]e first determine whether counsel's representation 'fell below an objective standard of reasonableness.' Then we ask whether 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"20
As to the first point, the Court stated: "Hinton's attorney also recognized that Payne [the Defense expert at trial] was not a good expert, at least with respect to toolmark evidence. Nonetheless, he felt he was 'stuck' with Payne because he could not find a better expert willing to work for $1,000 and he believed that he was unable to obtain more than $1,000 to cover expert fees."21 This, the Court held, fell below the objective standard of reasonableness. However, the Supreme Court remanded "the case for reconsideration of whether Hinton's attorney's deficient performance was prejudicial under Strickland."22
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In Fernandez v. California,23 the United States Supreme Court addressed two issues: 1) is the presence of the objecting occupant necessary when the police are responsible for his absence; and 2) after police arrested Defendant, did his objection to search his home remain in effect? The answer to both issues is "no."
The Court evaluated the rule in Georgia v. Randolph:24 "a physically present inhabitant's express refusal of consent to a police search [of his home] is dispositive as to him, regardless of the consent of a fellow occupant."25 However, the Court in Fernandez stated that the Randolph Court "went to great lengths to make clear that its holding was limited to situations in which the objecting occupant is present." So, the effect of the objector's absence and the reason for that absence are central to Fernandez.
In Fernandez, the police observed a suspect in a violent robbery run into an apartment building, and heard screams. They knocked, and Roxanne Rojas opened the door. The police requested to do a protective sweep, and Fernandez came to the door and objected. Police arrested him, returned to the apartment one hour later, and Ms. Rojas gave oral and written consent to search the apartment, where the police found several items linking Fernandez to the robbery.
The Supreme Court held that because Fernandez was no longer present (because the police had removed him), Ms. Rojas could give effective consent to the search, vitiating Fernandez's objection.26 The Court, however, carefully noted that Fernandez did not contest that the police had cause to remove him and to arrest him.27
Justice Ginsburg wrote a dissent, discussing warrant requirements: "Instead of adhering to the warrant requirement, today's decision tells the police they may dodge it, never mind ample time to secure the approval of a neutral magistrate."28 "Shut from the Court's sight is the ease and speed with which search warrants nowadays can be obtained."29
On December 11, 2013, in Kansas v. Cheever,30 the U.S. Supreme Court answered "yes"—although for a limited purpose.
Quick facts: "The prosecution here elicited testimony from its expert only after Cheever offered expert testimony about his inability to form the requisite mens rea."31
Here's the rule, as stated by Justice Sotomayor: "We hold that...
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