Vol. 11, No. 19
Covering Cases Published in the Advance Sheets through May 10, 2004

Note: This Visitor's version of Punch and Jurists does not include all the cases covered in the Member's version. In addition, while the Member's version contains links to the full text of all of the decisions noted below, that feature is not available in the Visitor's Edition. Thus, while the names of some of the cases cited below may be highlighted in blue, they are not hypertext-linked to the official decision in this Visitor's Edition of Punch and Jurists.

Supreme Court

Fingerprint Evidence Under Mounting Attack - Another Look

Guidelines

Believe It or Not:
The DOJ’s Newest Rationale for Denying Citizens the Right to Counsel

Last week, James B. Comey, the Deputy Attorney General (and the second highest ranking official at the Department of Justice), bluntly confirmed some of the worst fears of those who believe that the war on terrorism is making a shambles of our Constitution. In what many observers believe was a last-ditch attempt to influence the Supreme Court’s upcoming decision in Rumsfeld v. Padilla, Comey called a press conference to release a series of recently classified documents which, he said, showed how grave a threat Jose Padilla was to the United States.

During that press conference, Comey also made a fatal slip: he finally admitted why Padilla - an American citizen arrested on U.S. soil - had been locked up for two years in a Navy brig, without any charges filed against him and without access to counsel. Had Padilla been given his right to counsel, Comey bragged, he “would very likely have followed his lawyer's advice and said nothing, which would have been his constitutional right. He would likely have ended up a free man.” (As quoted from “U.S. Spells Out Dangers Posed by Plot Suspect,” by Eric Lichtblau, The New York Times, June 2, 2004. For more on this same topic, see "It's Not the American Way," by Richard Cohen, The Washington Post, June 3, 2004; and "You Have Rights - if Bush Says You Do," by Prof. Jonathan Turley, the Los Angeles Times, June 3, 2004).

It’s a truly sad day when the Government thinks that justice is served by violating the Constitution!


Yarborough v. Alvarado, No. 02-1684 (U.S. Sup. Ct. 06/01/2004) (Justice Kennedy)

This case began in 1985 when 17-year old Michael Alvarado and another man tried to hijack a truck in Santa Fe Springs, Calif. The other man shot the driver to death. A month later, the police asked Alvarado’s mother to bring him in for an interview. Alvarado appeared at the police station accompanied by both parents. His parents asked to go into the interrogation room with him; but they were kept outside.

Alvarado was not warned that he had a right to remain silent or that he had the right to consult with counsel. For the next two hours Alvarado was questioned by the police, and during that interview he made incriminating statements that were later used as evidence against him at trial. Alvarado was convicted of second degree murder and attempted robbery.

On appeal, Alvarado sought a writ of habeas corpus, arguing that he was deprived of his Fifth Amendment rights in violation of Miranda v. Arizona, 334 U.S. 436 (1965) and that his statements made to the police should not have been admitted into evidence because they were obtained prior to his being advised of his Miranda rights.

The district court denied his petition; but the Ninth Circuit reversed. In a decision reported at Alvarado v. Hickman, 316 F.3d 841 (9th Cir. Dec. 18, 2002), the Circuit court held that the state courts had erred in failing to account for Alvarado's youth and inexperience when evaluating whether a reasonable person in his position would have felt free to leave the interrogation.

The panel noted that Supreme Court precedent has considered a suspect's juvenile status when evaluating the voluntariness of confessions and the waiver of the privilege against self-incrimination - and it concluded that the same principle should have been extended to the determination of whether Alvarado was in custody in this case.

The panel also concluded that Alvarado was entitled to Federal habeas relief under the standards established in 28 U.S.C. § 2254(d)(1) because the state court adjudication that Alvarado was not “in custody” at the time of his interrogation “involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court.”

The Supreme Court granted certiorari to consider two questions:

• (1) whether, in applying the objective test for a "custody" determination under Miranda, a court must consider the age and experience of a person if he or she is a juvenile; and

• (2) whether a state court adjudication can be deemed an "objectively unreasonable" application of clearly established Supreme Court precedent, for purposes of § 2254(d), because it declines to "extend" the rule of a Supreme Court precedent to a new context.

On the first issue, a 5 to 4 majority of the Supreme Court held that juveniles are not entitled to more deferential treatment than adult suspects in terms of when Miranda warnings are required. Writing for the majority, Justice Kennedy stated that, although the Court has treated youth as relevant in other criminal contexts “our opinions applying the Miranda custody test have not mentioned the suspect’s age, much less mandated its consideration”; and the majority declined to create a special rule for advising juvenile suspects of their Miranda rights prior to an interrogation.

On the question of whether the state court adjudication involved an unreasonable application of Federal law, Justice Kennedy emphasized that the Miranda rule applies only to custodial interrogations. While he acknowledged that there were arguments on both sides of the issue of whether Alvarado was in custody at the time of his interrogation, the critical factor was that “fair-minded jurists could disagree” on that issue - and, for that precise reason, it was improper for the Ninth Circuit to have concluded that the state court rulings were unreasonable.

He added: “Although the question of what an ‘unreasonable application’ of law might be difficult in some cases, it is not difficult here. The custody test is general, and the state court's application of our law fits within the matrix of our prior decisions.”

Four Justices (Stevens, Souter, Ginsburg and Breyer) dissented. In a spirited opinion written by Justice Breyer, they said that the majority opinion defied “ordinary common sense.” They asked:

“What reasonable person in the circumstances - brought to a police station by his parents at police request, put in a small interrogation room, questioned for a solid two hours, and confronted with claims that there is strong evidence that he participated in a serious crime, could have thought to himself, "Well, anytime I want to leave I can just get up and walk out"? If the person harbored any doubts, would he still think he might be free to leave once he recalls that the police officer has just refused to let his parents remain with him during questioning? Would he still think that he, rather than the officer, controls the situation?”


U.S. v. Mitchell, 365 F.3d 215 (3rd Cir. 2004) (Judge Becker)

As the events surrounding the recent arrest and incarceration of Oregon attorney Brendon Mayfield proved, the FBI’s ability to achieve a positive match from at least some fingerprint evidence may be far more suspect than the public is led to believe. When Mayfield was arrested on May 6, 2004 by a huge entourage of FBI agents, the media was present in full force; and the world was told that the FBI had determined that it was “absolutely incontrovertible” that Mayfield’s print matched some evidence that the Spanish police had discovered in the aftermath of the deadly Madrid bombings.

Fourteen days later, a red-faced FBI released Mayfield and confessed that its vaunted fingerprint experts had been wrong: there was no fingerprint match after all - and the FBI issued a rare apology.

Those events coincided with the publication of Judge Becker’s lengthy ruling in the instant case, where the Third Circuit upheld a lower court ruling that permitted Government experts to testify as latent fingerprint experts at the criminal trial of Byron Mitchell. (See, U.S. v. Mitchell, 199 F.Supp.2d 262 (E.D.Pa. 2002) (Mitchell I) (P&J, 06/24/02)).

In Mitchell I, the defendant was one of four persons accused of robbing an armored car employee of approximately $20,000. Two of the alleged participants died before trial; and the third testified against Mitchell as an uncharged accomplice. No robbery proceeds were ever linked to Mitchell. The main physical evidence against him were some “latent” fingerprints found in the getaway car, but even the Court acknowledged that those prints were in “poor condition.” (Id., at 220).

Judge Becker explained that the term “latent” prints comes “from the Latin word lateo, ‘to lie hidden,’ because they are often not visible to the naked eye until dusted or otherwise revealed . . . . Testimony at the Daubert hearing suggested that the typical latent print is a fraction - perhaps 1/5th - of the size of a full fingerprint.” (Id., at 221). He also acknowledged that “many latent impressions developed at crime scenes are badly blurred or smudged, or consist of partially superimposed impressions of different fingers.” (Id.).

The FBI sought to connect Mitchell to the crime using an identification method known as ACE-V, an acronym for “analysis, comparison, evaluation, and verification; and Judge Becker acknowledged that “the standards used by the FBI at the evaluation stage of the ACE-V protocol are somewhat less concrete than the numerical descriptions found in television police dramas that extol ‘twenty-point matches’ and the like.” (Id., at 222).

Based on those well-recognized deficiencies, Mitchell mounted “a major attack” on the reliability of the prints; and he sought to preclude the Government from introducing expert testimony linking him to the fingerprints.

The district court held a “marathon” five-day hearing on the admissibility of the fingerprint evidence under Fed.R.Evid. 702. A total of ten expert witnesses testified; and the record from that hearing comprises nearly one thousand pages of testimony. In the end, the district court (Judge Joyner of the E.D.Penn.) concluded, in Mitchell I, that the Government’s proposed expert testimony met the various standards for reliability and helpfulness of scientific evidence that were established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co., v. Carmichael, 526 U.S. 137 (1999), and that there were good grounds for the admission of that testimony.

After Mitchell was convicted of robbery and related crimes, he brought the instant appeal, challenging the district court’s ruling and seeking a new trial. The Third Circuit upheld the district court’s ruling in Mitchell I. While Judge Backer’s lengthy decision contains a wealth of information about the various disputes regarding the admissibility of latent fingerprint identification evidence, it is not a ringing endorsement of the proposition that fingerprint evidence is “absolutely incontrovertible.”

In his decision, Judge Becker analyzed a series of eight Daubert factors that the courts have generally considered relevant to the issue of the reliability of fingerprint evidence, namely (1) the “testability” or “falsifiability” of the premises on which fingerprint evidence relies; (2) whether the method has been subject to peer review; (3) whether a known error rate exists for latent fingerprint identification; (4) the existence and maintenance of standards controlling the technique’s operation; (5) whether the method is generally accepted; (6) the relationship of the technique to established reliable techniques; (7) the qualifications of the expert witnesses testifying based on the methodology; and (8) the non-judicial uses to which the method has been put. (Id., at 235-244).

Perhaps recognizing the mounting fervor of the attacks on fingerprint evidence, Judge Becker’s analysis of each of those factors was cautious and often limited to tightly worded issues. Thus, one of the issues before the Court was whether the District Court properly took judicial notice that "human friction ridges are unique and permanent throughout the area of the friction ridge skin, including small friction ridge areas, and that . . . human friction ridge skin arrangements are unique and permanent." (Id., at 219). [On that issue, the Court concluded that the district court had erred in taking judicial notice of that proposition, but it concluded the error was harmless.]

Some of the Court’s findings were so couched with qualifying language, or so laced with legalese, that the resulting conclusions appear limpid at best or, at worst, they appear to raise more questions than they answer. Thus, for example, in response to the charge that there is a high “error rate” in latent fingerprint identification evidence, Judge Becker acknowledged that some of the evidence presented was “troubling” (id., at 240), but in the end he ruled:

“While a system of identification with a high false negative rate may be unsatisfactory as a matter of law enforcement policy, in the courtroom the rate of false negatives is immaterial to the Daubert admissibility of latent fingerprint identification offered to prove positive identification because it is not probative of the reliability of the testimony for the purpose for which it is offered (i.e., for its ability to effect a positive identification).” (Id., at 239)

In the end, Judge Becker concluded that “most [of the] factors support (or at least do not disfavor) admitting the government’s latent fingerprint identification evidence.” (Id., at 246). He then further couched his lukewarm endorsement by emphasizing that the panel’s ruling “does not announce a categorical rule that latent fingerprint identification evidence is admissible in this Circuit.” (Id.). Finally, as if to ward off the rapidly accelerating chorus of scientific opposition to fingerprint evidence, Judge Becker cautioned - perhaps somewhat wistfully - that “none of this, however, should be read to require extensive Daubert hearings in every case involving latent fingerprint evidence.”

The truth is that many reputable authorities have continued to argue that latent fingerprint identification evidence fails, in a number of ways, to achieve the type of reliability required for criminal trials; and some of those authorities have presented highly credible studies to support their contentions. (See, e.g., “The Myth of Fingerprints,” by Michael Cherry, The Champion Magazine, September/October 2003; and “The Achilles’ Heel of Fingerprints,” by Prof. Jennifer L. Mnookin of University of Virginia Law School, published in the Washington Post, May 29, 2004).

To assist our readers who may wish further information on the issues involved in challenging fingerprint evidence, we have posted on our Web site a copy of Mitchell’s excellent Memorandum of Law in support of his Motion to Exclude the Government’s Fingerprint Identification Evidence, as well as the Government’s response. We also recommend the site located at www.clpex.com [Complete Latent Print Examination] - which describes itself as the “site for latent print examiners by latent print examiners.” New resources are added to that site on a frequent basis.


In Brief

Authentication of Evidence: U.S. v. Chin, No. 03-1621 (2nd Cir. 06/02/2004) - Between 1997 and 1999, a swindler, simultaneously impersonating both an immigration lawyer and an officer of the INS, promised Chinese immigrants work visas for their foreign relatives in exchange for cash payment. In 2001, Tin Yat Chin was arrested as the suspected swindler. Twenty-seven witnesses testified at trial, including 11 victims and their relatives who identified the defendant as the person who swindled them. The defendant did not testify because he had a prior conviction for extortion, instead proffering an alibi defense based on credit card receipts, allegedly bearing his signature, to prove he was in the United States at the time the government claimed he was in China.

The district court held the receipts inadmissible on the ground that no witness could testify that the defendant put his signature on the receipts on the date of the receipts. The Second Circuit disagreed and reversed. It held that the receipts were sufficiently authenticated under Rule 901 of the Fed.R.Evid.. It noted that Rule 901 does not erect a particularly high hurdle for authentication; and the persuasive force of the evidence is still left to the jury, with the government able to argue that the evidence is not persuasive in light of the witness identifications. The Court also held that the receipts were admissible as non-hearsay based on cases in which such documents were admitted into evidence against defendants, holding that the same rule applies the other way round. Finally, the Court held the error not harmless because, if the jury credited the receipts, the receipts would establish a misidentification defense.

 

Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

52

784

19,711

District Courts

23

553

 10,955


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