CRIMINAL - Voice for the Defense Online€¦ · CRIMINAL DEFENSE LAWYERS PROJECT COURSES AND PUBLICATIONS its mud series of ofourses and publicahs* the Criminal Defehse Lawye16 Projeot

CRIMINAL DEFENSE LAWYERS PROJECT COURSES AND PUBLICATIONS

its m u d series of ofourses and publicahs* the Criminal Defehse Lawye16 Projeot strengthens the skill3 a d ctivmess o ~ ~ ~ l ~ w p r a c t i t i o n e r s Our god is to hdp provkde an adequate pool of competent attorneys a v W 1 ~

to courts for appointments in indigent dminal cws, thgreby enhancing tbedefetl~e 6~'s corrtribution to an ever mm equitable$ effeGtim, aad efficient criminal justicespsteln,

1

October 25. ,..... Federal Criminal Lsw Institute ($95) . . . . . . . . . . . . . . . . . . . . . . . . . . Tyler ( lnc l ldu\ YRCL: copy 01' IWeral Criminal hactiffi Manual along mth other m;rtedal~)

~ ~

November 30,1984 . . . . . . . . . . Criminal @fease'htitute:&nles of 'E'piden.i?g ($80) . . . . . . . . . . . . . . . .Dallas. hember 13-14,1984 . . . . . . . . Criminal . . . . . . . . . . . . , .............. J3l Paso,

e Pr&*e&~bW along with other materi

February 14-1 5, 1 %S . . . . . . . . . Criminal Defense Ski ........ Sari Antonio

along with other materials)

March 3-8, 1985 . . . . . . . . . . . . . Criminal Trial Advocacy Institu ' , z I .......... Hmtsville (Includes hotel, two meals/day, trial

May 3, 1985 . . . . . . . . . . . . . . . Criminal Defense Institute: Rules of E ; .............. Odessa June 28,1985 . . . . . . . . . . . . . . Criminal , , .. , $ . ...... Austin August 23,1985 . . . . . . . . . . . . . Criminal ..;......... Houston

BOOKS AVAILABLE FOR S . . These extensive compilations of materials written by Texas t awers and judges ployide pmctid assistance and guidance through every critical stage of criminal p seautWn8 in st& and federal cou&. All prices include sales tax.

DWI Defense DeskManual, May 1984 . , .. .,. ......................... %525fl Capital Murder: Defense Against the De . &%B ................. ; . . . $78.75 Federal Criminal Practic .-.. .................... $7835 Criminal Defense Practi ......................... g31.m . . . . . . . . . . , - - - - - - .. .... . . . . . . . . . . Incompetency and 1nsaw~&i&d.:t$g1 Eiutiom , ; : $21.00

, s

&WIBRLALS FROM PREVrOUS COURSES Lwtid Quantities

Amdt,apa@((4.. ........................................... $31.50 and Post-Csnuictfom Remedim, June l9&4 .......... , ............. g31.50

% f t , ~ , ~ 1 t d R o b b e r $ r , A a s u s t 1 9 ~ ............................. &dl$

For furthei i&mation, please contact the Criminal Defense Lawyers Projmt, 660 West 13fh&eet, Austin, TX 78701, 1512) 475-5498,

Much of a professional organization's success is necessarily measured by its abii- ity to generate the interest and involvement of new members. Similarly, for an organization to continue with vitality it is imperative that the leadership periodic- ally change and that the quality and quantity of the membership be improved. TCDLA wants and needs additional members, and as a recognized and respected professional association we have much to offer the regular criminal lawyer, as well as the occasional criminal lawyer.

Although there have been active and aggressive membership drives in the past, one of the geographical areas that TCDLA has never focused upon for the solicita- tion of new membersis that of the smaller counties. One reason there has never been such an effort is the dilemma that contin- ually plagues us, individually and as a group: inconvenience. Nevertheless, the rural, and the not so rural counties include many excellent and experienced criminal defense lawyers that could and would make valuable contributions to our association

Therefore, if you live or practice in an

area outside of the urban centers, take a to make available to third year law stu- moment and sendaletter to those lawyers dents a criminal law article contest. Cash in your community that handle criminal awards.will be given for first, second, and cases and solicit their involvment in third places. In addition, the articles will TCDLA. be published in the VOICE It is antici-

Collateral to this, one would be remiss pated that the first awards will be given in not recognizing that twenty-one of the in the Spring of 1985, and if the program thirtythree speakers and authors at the is properly received it will become an Tenth Annual Advanced Criminal Law annual event. Course in San Antonio, including the In this month's VOICE there is a new program's director, Tom Sharpe, are pre- column: "Forensic Science News." This sent or former members of TCDLA. That will become a regular monthly feature; is surely a comment uponthe professional however, beginning in October, 1984, the quality of our association. author will he Richard Anderson of Dallas.

Several new rather innovative efforts The "Hearsay" column has seemingly are to be made by TCDLA in the next met with popularity. However, its success several months. Thanks to ideas and ef- will be directly proportionate to the con- forts of Dick Dromgoole, who along with tributions made to it. So, if you think his wife Vuginia have published the something is approptiate (inappropriate) YOICE since its inception, the associstion for the membership to know of, call will shortly begin sponsoring a public ser- Walter Boyd or M e n Isbell. In addition, vice column to be titled "Lawyers, the because of the apparent popularity of the Law, and Criminal Defense." The column "hearsay" feature, a personal advice col- will be made available for publication to umn could become a reality. To insure newspapers throughout the State and its this, each of us needs to to write or call purpose will be to answer, as clearly and and encourage Tim Evans to author such concisely as possible, the public's ques- a column Tim has expressed some inter- tions about criminal law. est in this and has even proposed a title:

Also in the formative stages is a plan "Tim's Tips."

September 1984/VOICE for the Defense 3

JOWRWAL OF THE TEXAS PiSlMlNAL DEFENSE LAWYERS AtiSOCtATiON

VOICE for ihe U e j h x (ISSN 0364-2232) is puhl'ihcd monthly by tha l'axas Crimi- nal 1)cfcnso Lawyers Asgociation, 600 W. 13th,Austin,l'exas 78701, (51 2)47&2514.

year, Sacond cia* postage paid a Ausfitisfiti Texas. POSTWASTER: Send addreas ohangeg to POTCE fw fhe Dsfense, 600 W. i3&, Austin, Tew 78701.

AU artidex and oother aditoriat mntriba- liuns shwld te a d d ~ W to tb editor, MI?. "~N'' Duncan I& 101 N. Elm, Dentan. Tm76201. AdV&stisinsidaniries ma sand to *Re &yes, Arffotms Apenoy, P.D. Box 4574, Austiq, h 78765 (312) 451-3588,

Editor &my P. Fitzce~ald

Aswciatc edilorr Kichitld k Anderson

Uavid L Hotsford

0 1984 TEXAS CaRWNAL DEFENSE LAWYERS ASSOCUlTIQN

ON THE COVER

Whqf's Wrong with this p & m ?

ARTICLES 6 Eyewitnsss T a ~ ~ o n y

by ~ w i s G. Haf@un, o.a 9 Fourth Amendmant Erclusionary Rule

bz E m e t r @&a 11 Keeping Track of Witnesses and Evidence

FEATURES 3 Editor'sCotner 5 President's Repmt

SDR 1-24 SgnEmt Deonians Report 13 Forensic Science NPWS 13 Letters 14 H w s q

NEWS IS ~ o b Jones to &e "Defense" am Again!

TEXAS CXUMINAL DEFENSE LAWYEW

Bob Estrada Wichita FaUs

Tim Bvam Fort Worth

P. R. "Busk" Fibs. Jr.

Dufing the past few months a group parole laws. It has been proposed that of legislatots, lawyers and private citizens evidence of the function and practices of bas been appearing around the state, the Board of Pardon and Paroles be ad- conducting he* on an issue which is missible, and that argument be allowed of extreme interest to the criminal de- regarding such. fense bar. The Commission on Sentencing, Obviously, these matters are vital to Practice and Procedures is gathering infor- the criminal justice system as we know it. mation which will form the baris of their We, individually, and as an association, report, which is supposed to propose an must take a particular interest h this answer to the question: "Jury sentencing Commission2s activities, and be informed in Texas, or not?" on the issues.

It is my understanding that the mem- Why do we support jury sentencing? bers of that commission are about evenly To begin with, a citizen's right to trial by divided now on the basic issue; one-third a jury of his peers should include the favor judge sentencing, onethird favor e t b e trial. Unlike almost all other states, jury sentencing and one-third are unde- we in Texas trust jurys and the jury sys- cided. Of course, they will not render a tem. By placing sentencing in the jury's one-word report ryes" or "no"), regard- hands, we couple authority with respon- less of their ultimate vote, because many sibility. The entity thatheardthe evidence related issues are being addressed as they and determined guilt is then allowed to consider the primary question Mwh dis- make an informed judgement regarding cussion is being had regarding "blindfold- the need for punishment in rhm case. ing" jurors; that is, prohibiting the intro- CTtisezi~ are allowed to determine what is duction of the Defendant'sprior criminal good for society. Arbitrariness, which m y record on the guilt-innocence phase of legal system should eschew with vigor, is the trial, andlimiting the kinds of evidence removed from the process. regarding prior misconduct which may be With judge sentencing, that spector of used on the punishment phase. There is a arbitrary conduct always lurks in the move to allow the introduction of evi- background The pressure to pleadlooms dence of prior arrests or charges, not re- over a Defendant like a heavy fog, as the sulting in fd convictions, both as im- ,fear of being charged a high price for his peachment evidence onthe guilt-innocence jury trial becomes real and present. In the phase, as well as at the punishment phase. back of the Defendant's mind (and, usual- There has even been some support for ly, in the front of his attorney's) is the opening the door to the evidence of the fear that pressure from one source or the Defendant's prior misconduct, regardless other will deternine the sentence given, of whether the Defendant takes the stand rather than the objective needs of society or not. Ifthat doesn't alarm you, why not? or the Defendant (Experience in our Fed-

There are proposals to relax the rules eral system should be sufficient grounds restricting the jury's consideration of for these concetns or fears; for, there, isnat

it ultimately LAW ENFORCEMENT who cafries the biggest stick in the real sentencing,process?)

These issues are REAL. Sooner or later they will reach the legislative gristmill; if not this year, the next. The Criminal De- fense Bar must become actively involved. Judges and prosecutors are involved. Each of us should discuss the issuas with our judges and prosecutors. My feeling is that most of them oppose a radical charlge in the present system We can determine those areas where we agree, and attempt to reconcile areas of disagreement. We can contact commission members (these names a r ~ available by contacting the TCDLA office or my office) and make them aware of our position-educate them, if you please. Whatever happens, I don't believe the system can tolerate much more "adjustment" at the hands of overly-enthusiastic and severely under- informed pressure groups. If we can't get active and make ourselves heard, this generation of ~rhninal defense lawyers will preside over the demise of our criminal justice system as we know it.

Until October, SCRAPPY

September 1984/YaICGfor theDefense 5

Eyewitness Testimony by Louis G. Hoffman, O.D.

In the past, optometrists were called as expert witnesses at criminal trials. Their role was primarily to determine if an individual's visual acuity was sufficient to allow him or her to be a reliable witness to specific events related to particular criminal acts. Since the professional role of today's optometrist encompasses far more than measuring visual acuity, phor- ornetry and refractive errors, optometric practitioners must appreciate the complexity of their involvement in such criminal trials. Their findings relative to three factors play a role in their testimony, for example.

Three basic factors influence identification

\ Contrast sensitivity Since visual acuity is the measurement

of a high-frequency target at high contrast,' identification of specific events cannot simply be related to acuity, given that most criminal activities occur under less-than-perfect lighting conditions. A witness must have not only adequate acuity but also the ability to detect high- freauencv items at reduced contrast and

tions is available and could be part of the evidence introduced for an eyewitness.

Visual fields The extent and integrity of any indi-

vidual's visual fields are frequently an important consideration in the ability to identify the sequence and relationship in an event. Any deficiencies in this area may render questionable the eyewitness's ability to reliably understand the specific event and its relationships to other ongoing events.

Depth appreciation The eyewitness's ability to appreciate

depth may also be a significant factor in a specific event. Depth appreciation involves more than stereopsis; it also requires the ability to use other environmental clues t o depth, e.g., motion parallax, motion perspective, texture gradients, shadows, convergence, and size judgments5

True stereopsis is not the only means of judging depth. Optometrists are aware that the secondary clues to depth are significant and that these clues become less reliable under reduced illumination.

low~freq~ency items at both high andlow contrast. Other variables can

Research has demonstrated that many affect evewitnesses individuals have reduced contrast sensitivity at low frequency even when acuity The areas discussed thus far are not

is measured at 20120. This may be due to new to most optometrists and are well

certain pathological conditions and t o the within their expertise. Optometrists must

normal aging process.2 3 Identifications also be aware of other research in percep-

of individuals and events, then, are af- tion, which directly relates to contrast sensitivity, visual fields, and depth appre- fected by the lighting conditions and by ciation can be a factor in the eyewitness

the specific item being identified. Equip- identification of both individuals and ment to measure contrast-sensitivity func- events. ' According to Loftus,= two groups of

'Copyright 1984. Reprinted from the variables affect an observer's ability to Journal of the American Optomem? perceive an event accurately: event fac- Association, Volume 55, Number 6, tors and witness factors. Examples of June 1984, pp. 445-448. event-related factors are exposure time

6 VOICE for the DefenselSeptember 1984

(duration), number of opportunities to see, salience of details, type of fact being queried, and degree of violence. Witness- related factors are divided into two cate- gories: (1) those factors inherent in any event which affect a person's ability to perceive it, e.g., stress expectations, pre- judices, and temporary biases, and (2) factors inherent in the witnesses them- selves, such as age, sex, and intelligence. The second set of witness factors includes characteristics that people possess independent of an incident.

Some background information about the act of perception is necessary if we are to understand the relevant research in this area. Brunswik stated that the per- ceptual world is an achievement rather than a creation, an achievement made possible by the use of cues.' These cues acquire, during an individual's lifetime, an "ecological validity," which is a function of the extent to which each of them has mediated successful action in real-life situations. They enable us to guess well, not to know accurately. In effect, perception is something the organism does rather than something that simply happens to the organism. In the early 1920s both Woodworth* and McDougallg stated that perception is a response, not a picture, an active analysis and interpretation of signals provided in sensory stimulation.

Research on perception takes many forms

Powers et all0 reported on two experiments involving 125 male and 125 female college students. The two experiments involved the subjects' looking at a series of slides depicting a wallet snatching (Exp I) and a fight (Exp 11) and then taking a multiple-choice test of accuracy for the details of each incident. One day later, the subjects were given a version of the

incident to read containing misleading information about certam objects In the scene. Then another test was administered to determine the extent to which the misleading information was incorporated into the subjects' recollections.

The results demonstrated that females were more accurate and more resistant to suggestion about female-oriented details and males were more accurate and resistant t o male-oriented details. Additional analysis of the results indicated that over- all accuracy was not significantly related to either mtelligence or to specific abilities such as verbal or spaclal.

In an attempt to determine children's capabilit~es as eyewitnesses, Van OssMarin et all' examined 96 children and young adults from 5 to 22 years of age who had witnessed a confederate interacting with the experimenter. Answers to objective questions and identrfication of the confederate from a series of photographs demonstrated that young children were as accurate as the adults in answering the questions and in identifying the confed-

of information that impinges upon his or her senses, but also by a desire to live up to other people's expectations to stay in their good graces. The eye, the ear, and other sense organs are therfore soclal organs as well as physical ones.

Several factors influence perception reliability

Buckhout12 listed a number of factors which contribute to unrehability of identification through their effects on perception, memory, and suggestibility. These mclude (a) situational factors existing when a crnne IS witnessed, such a length and conditions of observation and the apparent significance or seriousness of the criminal act; (b) characteristics of the observer-whew such as stress level,13 needs, and motives; and (c) factors that operate durmg the identification test, m- c ludi i lime-up bias, suggestion, and con- formity pressures.

Leippe et d.14 in their research ad-

dressed the factor of percewed senous- ness of the crime by conducting several experiments with different hypotheses. In their experiments, the seriousness of the crime was operationalized as the monetary value of a stolen object The more expensive the object stolen, the more serious the crime. They hypothe- sized that it was possible that information acquired after the fact relative to a crime's seriousness-such as durmg the identification task-should have no effect on identification accuracy. Thus, it was expected that crime seriousness should influence accuracy only in the knowledge- before conditions.

Their results indicate that the perceived seriousness of a crime, in this case a stolen item, can be a significant determinant of accuracy in eyewitness identification. The subjects were more likely to identify the thief if the stolen object was known at the time of the theft to be expensive than if it was inexpensive and trivial. Also, witnesses who knew the object being

eiate. Despite some leading questions, no age differences were noted m suscep- tibility to such questions.

Jurors generally have no reason to distrust eyewitness testimony given under oath by mdividuals who have little to gam by lying. As a result, jury verdicts are frequently influenced by such eyewitness accounts. Buckhout'2 bas stated in Scientific Ammican that eyewitness testimony is unreliable. Human perceptlon is sloppy and uneven, albeit remarkably effective in servmg the human need to create structure out of experience. Both sides, and usually even the witness, suc- cumb to the fallacy that everything was recorded and can be played back later through questioning.

Perception and memory are decision- malung processes affected by the totality of a person's abilities, background, atti- tudes, motives, and beliefs; by the envu- onment; and by the way his or her recollection is tested, The observer, an active rather than a passive perceiver and and recorder, reaches conclusions on what he or she has seen by evaluating fragments of information andreconstruct- ing them. The observer is motivated not only by a desire to be accurate while imposing meaning on the overabundance

Study compares factors' effects on males' and females' testimony

Clifford and Scott1" showed male and female w~tnesses two films, one including a violent scene and the other omitting such a scene. Testimony by the subjects after they viewed the films indicated the following:

Both men and women recalled sig- nifkantly fewer details, with signif- cantly less accuracy, from the film with the violent scene. 0 The stress the witnesses experienced in viewing the violent fh affected the accuracy and completeness of their testimony. (DentlS also found that stressful questioning can lower identification accuracy.) 0 A witness who represses a disturbing scene will recall actions in it and identify persons involved less reliably than when he or she sees the same persons take part in a nondisturbing scene. 0 Males and females were equally accurate witnesses of the nonviolent

f h ; women's accuracy declined significantly for the violent film. (Liptonzo disagrees, but his research had other variables that may have qualified his results.) 0 Females testified that the violent film was signikantly more violent than the males' testimony suggested. 0 Males and females could recall actions better than physical description for both F h s . (Cf, Tickner and Poul- ton. 17)

0 Recall accuracy did not differ significantly between testimony under interrogation and that produced by witness narrative. Leading questions, however, affected 95% of the witnesses at least once 0 Introversion/extroversion scores did not correlate with accuracy of testimony. 0 Witnesses' certainty of their correct- ness bore no relationship to objectively assessed accuracy reports.

September 1984/VOICEfor the Defense 7

stoIen was expensive were more accumte than witnesses who did not know what the stolen object was until after the theft. As the authors anticipated, no effect occurred on accuracy of identification When knowledge of seriousness wasgaiaed after the ?rime.

These fiidings supported the hypothe- sis that perceived setiwmess plays s role in motivating witnesses to make full M6 of selective attentbnal and encoding eap abilities in eyewitness situations. When motivation to attend ia not enhanced by perceiwd seriousness, a few seconds of expornre to a transgressor or a transgres don may be insufficient for enough pro- cssdag to pernit recognitiod memory. The prosecutor who dwells on a crime's serioumess when addressing a jury may he demonstrat& a significant fastm which should be emph&ed to the jury.

An interesting by-product of these findings ww supported for the researd of Bmwn et which indicated that the witnesses' cerfainty of their identiRcation war not related to accuracy. In both of $he resmch projects detailed above, witnesses were only willing to make an ident- fication when they were f a l y certain. In other words, regardlessof whether their . identifioation was cotrect, they were con- ' fident about it. Certdnty, however, is no predictm of awmcy.

Kuehn7@ demonstrated in a survey of 100 cases on police files that the type of crime Was a dgnifiwnt factorin compbte. ness of reports Victims of robberies provided a simcantly fulIer report oftheir assailant than did rape or assault vktims. La~&ery'~ indicated the adverse effects that high levels of aronml and stress om have on perception. Kuehn" also noted in his study that female victims gave significantly leas complete descriptions of assallants than did male victims.

When Tickner andPoultonW askedob- servers to detect c&m and their perpe- trators in a videotaped street sc- they found that pemeption w;ss better for actions than for peopIe,

One study mmpares effects on testimony

Clifford and Scott* investjgated the effeot an accumy of testimony athib. utable to diffefent types of witnessed events, the sex of the witness, different

modes of initial questioning, and the probing for recall of physical descriptions and physical acaons (see BOX). They also were conearned with the rektionship of peisonality to aooumcy and subjects' sus- ceptibllity to leading questiom.

They cm~luded that recall accuracy is. not at all high andthat accurwy decreases for violent incidents relative to nonviolent inoidences, especially for female witnesses. Actions are better recaned than descriptions, irrespective of the nature of the crime and sex of the witnesses. Little weight can be placed on witnesses3 claims of ~erhainty of correctnem, and suseep- tibiity to lea- questions is high, although the t y p ~ of questioning seem9 to m* little difference. An additional factor that should he

noted is the effect on the jwors of expert testimony relaave to the unreliahility of

perceptioll, 3-8 Monica, Cq GqodYeat 17. Tmkner, A, Poulton, E "Watchin& for PubliGbing Co., In&, 1977,%56. people and actions" &goaomic% 1975;

6. LofNs, E.F., Eyewifnm tedh'monp Cam- I8(1):35.51. bd@. MA,HarvatdUnimsityPressS 1979. 18 Clifford, EL, Scott, J. "Individualand sit-

7 Brunswik, E. Pffrc~pfion end the repmen. uational f a d a s in eymii'nes testimony? nttiw de& of p~chologled exp@imnzs. J: A M &chat, 1978; 63(3):352-359. B@%eteg: University of mfornia Reas, 19. Dent, KR. "Stress as a fs&r mnueneing 1956:lSrl. person recognition in ideniitlcation pa-

8. Woodwarth, R.S, h h o l o m : a study of tad@&V Bull. m. PychoL Sm, 1971; 30: rnmtd &Ye. New Yo&, Henty Bolt & Co., 339.340. he., 1921:456. 20. W o n , J.P. '*On the psyohobgy of eye

9. B 4 E - D m W., Ollflzbe of ps)eho?w witness fest.ktiony." J. &RI. AyckpE, New Yo& ehatles Wbnerts Sons, 1923. 1977, Peb; 62(1):9&95.

lo. Powers, P.A, Andrlks, J.L., LO% E.F., 21. I~Etus, BE., "Impact of expert psyehp '*Eyewitness accounts of females and lo&oal testbony on t 4 ~ unregiiWty of males." J. AppL Pa~shoL, 1979, Jun; emWtn%ss identiflation." J. AppL A p 64(3$:339-347. cW,, 1980, Feb; 65(1}:9-15.

11. Van 0s haarhs B., H~lmes, D L , Guth 22. Wells, G.L., h d m y , R.C.L., Tousignant, M., st al. "The potential of childran as J.P., "Effe~ta of expert p~ychologloal 86 ta~eto3tnes$%: a comparisiu, of c h i l h rice on human perfozmaaae ln judging the and gdults on eyewftnw tsks)' Law validity of eyewitness testimony? Law' Humm ~ & m , 1979: 3(43:295-306. H U m Behav., 1980; 4(4):275-2%5.

eyewitness identification Research indicates that one consequence of such te9ti- mDnY is an increase in &e mount of attention thlLt juroa give to eyewitness accounts, perhaps enhancb the extent to whioh they ate scrntini~ed.~' This conclusion conflicts with the research of Web et alz2 who believed that expert advi(;s did not improve the extent of scrutiny.

Optometrists ham a compI&e under. gtandmg of the visual process from the initiatkm of sensation through the aqui- sition of the pefcept. Exp~rtise in vision and perception may make the optometrist a likely candidate to be an expat witness in criminal cases in whbh eyewitness testimony ~elative to both event$ and individuals may be a factor. It is important for the optometrist to be oo~lzant of research in this area 1

REFERENCES 1 2 Buckhont. R.. "Evewitness testimonv." Sei Am, 1974, D&; 231{6):23-31.

1. Campbe4 F.W., Maffai. L, " & 4 ~ and 13. lawhem. K.R. "Human memorv and the spatial ffequw~y:' Am, 1974, Nov; rec&6&pro&ss." In: ~echnick~eprnt , Nos. 23115):106-114, Depanmant of Psyeholwy, State U n i w

2. Arden, G.B., Jaaabson. J.J., '"A simple s i ty af New Yorb-BufGlo. BnfN8, SOW, matwe test For conhast sensihvitv: nra 1971 . .- A < . *. h i n a b tesalts indicate value ~1 screening 14. hippe, KR., W a , Gh, Ostrom, T.N, for plauoe%" Invest. Oph&ul. Bis Sd, *Crime seriousnes8 as a d e ~ ~ t of 1978; 17(11:%332 a c ~ ~ f ~ w in eyewitnw ldentifi~6m."

3. Sing4 K, Cooper, RL, Alder, V.A, et at L AppE Psyehut, 1978; 63(3):345-351. h he Arden sating d t y : effect of a@ 15. Brawn, E, Deffenba&erer K., Storgin, W., and optisal factors in the mmal patieof, "'Memo~y for &es and the cgrmmstanw~ with predictldn of the false negative rate of encoun~~." J. PppL Aydt~L, 1977, In s~mning for ~Laucma'" Br. L OphthuL, Jun; 62{3):311-318. 1981; 65(8):51&524. 16. Knehn, L., "Leaking down a gun barrel:

4. Harmon, L.D., "Thereaapnitiion af f-" pmn psmption and violent cdme." &t Am, 1973,Nou; 229{5):71-82 PBmepr, Xot. SRdls, 1974; 39(3):HS9-

5. Rosinski, R.R, lb & v e l o p m ~ of rim2 1164.

SIGNIFICANT DECISIONS REPORT EDITOR: Kcrry P. FitzCrrald

ASSOCIATE EDITORS: Ricltard A. Anderson David L. Botsford Catherine Greene B u m c t t . .lulie Hcald

HECTOR pAMIREZ, No. 1039-83, Opinion on Appe l l an t ' s PDR: Conv. a f f ' d , Judge M i l l e r , 7/18/84.

TEMPORARY DETENTION AND PAT DOWN FOR WEAPONS LAWFUL: O f f i c e r p a t r o l i n g downtown a r e a of Brownsvi l le was approached by a man who t o l d him t h a t a l a t i n male wearing a yellow t - s h i r t had a gun i n a nearby ba r . The man was desc r ibed a s having a t a t o o of a k n i f e on h i s r i g h t arm. The o f f i c e r g o t i n h i s p a t r o l c a r and went t o t h e ba r . Once i n s i d e , t h e o f f i c e r recognized one of approximately e i g h t p a t r o n s a s matching t h e d e s c r i p t i o n g iven t o him by t h e man on t h e s t r e e t . The o f f i c e r approached t h e man s i t t i n g a t a t a b l e and ordered him t o s t and . Upon s t and ing , t h e o f f i c e r no t i ced a l a r g e bu lge i n h i s r i g h t pocket . He p a t t e d down t h e s u s p e c t , determined t h a t t h e bu lge was a gun and removed t h e gun from t h e de fendan t ' s pocket and a r r e s t e d t h e D f o r c a r r y i n g a weapon on premises l i c e n s e d t o s e l l a l c o h o l i c beverages. The ind ic tment , which included two enhancement paragraphs , r e s u l t e d i n a l i f e sen tence .

D argued t h e s t a t e f a i l e d t o show s u f f i c i e n t probable cause t o j u s t i f y t h e war ran t l e s s s ea rch of D i n t h a t t h e r e was no showing t h a t t h e in format ive f i r s t - h a n d knowledge of t h e f a c t s were reasonably t r u s t w o r t h y in format ion . The c o u r t f i r s t noted t h a t t h e informat ion d i d no t come from an informant but r a t h e r from a wi tness t o t h e crime who t o l d t h e o f f i c e r he had come from t h e bar i n ques t ion . When t h e o f f i c e r e n t e r e d t h e b a r , he had uncor- robora ted informat ion s p e c i f i c a l l y d e s c r i b i n g t h e D and ind ica- t i n g t h a t he had a 'gun. The o f f i c e r d i d no t s ea rch or a r r e s t t h e D s o l e l y upon t h e in format ion supp l i ed by t h e man on t h e s t r e e t . Only a f t e r approaching t h e D , who matched t h e given d e s c r i p t i o n , and a f t e r observ ing t h e bu lge i n t h e D ' s pocket d i d t h e o f f i c e r p a t down t h e D and f i n d t h e gun. " I t is t h i s l i m i t e d p a t down sea rch f o r weapons t h a t we, under t h e f a c t s of t h i s c a s e , and t h e

-

September 1984/YOICB for the Defense SDR-1

t in-^^ y, U, 392 U.S. 1, 88 S.Ct. 1868, 20 X.Ed.2d 889 (1968) s anc t ion ; n o t a f u l l blown s e a r c h f o r con t r a - band. Under t h e f a c t s of t h i s case t h e p o l i c e o f f i c e r ' s a c t i o n s t h a t r e s u l t e d i n t h e f i n d i n g o f t h e weapon were j u s t i f i e d . Upon f i n d i n g t h e weapon, O f f i c e r Mart inez was j u s t i f i e d i n a r r e s t i n g t h e Appel lant . See A r t . 14.01 V,A.C.C.P. No f r u i t s of any s e a r c h i n c i d e n t t o t h a t arrest were in t roduced a t Appe l l an t ' s

"A p o l i c e o f f i c e r i n c i rcumstances s h o r t o f probable cause f o r a r r e s t may j u s t i f y temporary d e t e n t i o n f o r t h e purpose o f i n v e s t i g a t i o n s i n c e a n i n v e s t i g a t i o n is considered t o be a lesser i n t r u s i o n upon t h e pe r sona l s e c u r i t y . ( C i t a t i o n s omi t t ed ) 'An o f f i c e r must have s p e c i f i c , art icu1abI.e f a c t s , which i n l i g h t of his exper ience and g e n e r a l knowledge taken , t o g e t h e r wi th r a t i o n a l i n f e r e n c e s from t h o s e facts, would reasonably war ran t t h e i n t r u s i o n on t h e c i t i z e n . ' ( C i t a t i o n s omi t t ed ) I n t h e cou r se of such a temporary d e t e n t i o n , a n o f f i c e r may conduct a l i m i t e d s e a r c h f o r weapons where it is reasonably warranted f o r h i s s a f e t y o r t h e s a f e t y of others. ' '

Thus, once t h e o f f i c e r , armed wi th a n uncorroborated t i p , saw t h e bulge i n t h e D 1 s pocket , t h e o f f i c e r had s u f f i c i e n t f a c t s t o j u s t i f y a s e a r c h under T e u y .

J$!JLLIAHSON, No. 1100-83, Opinion on Appe l l an t ' s PDR: Conv. r e v ' d , Judge Onion, 7/18/84.

PROVOKSNG THE DIFFICULTY INSTRUCTIN WAS ERRONEOUSLY SUBMITTED TO JURY, OVER OBJECTION: D was conv ic t ed of murdering t h e deceased who was l i v i n g a t D ' s house a t t h e time of t h e k i l i i n g and who had s e v e r a l days earlier been convic ted of bu rg l a ry . R i s burned body was found near D 1 s r e s idence about a week l a t e r . There were no eye wi tnes ses t o t h e shoo t ing , D d i d n o t t e s t i f y a t t h e g u i l t s t a g e , The s ta te o f f e r e d most of D ' s e x t r a j u d i c i a l confess ion and D o f f e r e d t h e balance. A p a r t of t h e con fes s ion r e l a t e d t h a t on t h e n i g h t of t h e k i l l i n g D and t h e decedent were a t home s i t t i n g i n c h a i r s on o p p o s i t e ends of a room when an argument began. D o rdered t h e decedent t o l e a v e because he c o u l d n ' t a f f o r d t o f eed him any longer and t h e decedent was offended and g o t mad and a c t e d l i k e he was going t o jump on D. D s a i d t o t h e decedent: "Never attack m e p h y s i c a l l y i n my home a f t e r he lp ing you; a s i d e from a l l of t h i s my house is not a r e t r e a t f o r t h i e v e s who would b u r g l a r i z e my neighbors. The decedent r eac t ed v i o l e n t l y and lunged f o r my machete t o a s s a u l t me. When h i s hand a lmost reached t h e machete I grabbed my r i f l e which was l e a n i n g a g a i n s t t h e wa l l be s ide me and s h o t him one time i n t h e l e f t s i d e of t h e head and he f e l l a c r o s s t h e couch." The remainder of t h e con fes s ion r e l a t e s how D dragged t h e d e c e d e n t ' s body o u t s i d e and

eventually placed it with some tires and set it afire.

The court held that the evidence did not give rise to a reasonable inference that the D intended to provoke the decedent into attacking him. m, 267 S.W. 985 (1925). A jury instruction on provoking the difficulty should not be submitted to the jury unless self defense is an issue and there are facts in evidence which show the deceased made the first assault on the D and the D, in order to have a pretext for killing or inflicting bodily injury upon the deceased, did some act or used some words intended to and calculated to bring on the difficulty. m, 625 S.W.2d 320.

The court also noted that the evidence was sufficient to give a self defense instruction to the jury as the C/W threatened to use or attempted to use a weapon. Thus the error could not consti- tute harmless error. &imr 621 S.W.2d 776.

NCCrrLLAR I!& STATE, NO. 081-84--083-84, Opinion on State's PDR, Aff 'd, Judge Tom Davis, 7/18/84.

CUMULATION OF SENTENCES WAS LEGAL: D pled guilty to three cases of theft, burglary, and burglary of a habitation and received ten years probation in each case. At that time the court stated: "Upon your pleas of guilty, I will find you guilty and assess your punishment at ten years in the penetentiary in each case t~ . I will place you on probation for ten years." Probation in the three cases was subsequently revoked and the T/C sentenced the D to ten years in the theft case, ten years in the burglary of a habitation case, cumulated with the theft sentence, and five years in the burglary conviction cumulated with the burglary of a habitation sentence. In other words, the D was now looking at serving 25 years TDC.

The D does not contend that the T/C ever promised to sentence the D concurrently upon revocation as a part of the plea bargain or otherwise. The D did not object to the imposition of consecutive sentences at the revocation hearing but raised the issue for the first time on appeal. The CCA granted the state's PDR to examine the C/A holding that the T/Cts cumulation of the sentences was "fundamentally unfair".

Art. 42.08 C.C.P. provides that when sentence is imposed, it is within the discretion of the court whether to cumulate sentences or not. Here, the T/C at most indicated when assessing punishment and granting probation that if the sentences were later to be imposed they would be concurrent. The T/C's statement that the "punishments" run concurrently, made after the D pled guilty, was superfluous since the imposition of sentence is suspended when probation is granted. Art. 42.12, Sec. 3 C.C.P. Sentenae is not imposed until probation is revoked in which case the court may proceed to dispose of the case as if there had been no probation. Art. 42.12, Sec. 8(a) C.C.P. Thus,

September 1984/VOICE for the Defense SDR-3

t h e court f a i l e d t o see how the T / C n s statement cons t i t u t e s "a promise not kept" s o a s t o render t h e imposition of consecutive sentences "fundamentally unfa i r" .

Upon revocation of probation i n t he t h r ee convictions, t he T/C was authorized t o impose t h e sentences consecutively. Gordon, 575 S.W.2d 529 (Tex. Cr. App. 1979) (opinion on s t a t e ' s Motion For Rehearing) .

w, So. 68,488, Cap i ta l Murder* Death, Revrdr Judge Clinton, 7/18/84.

DEFENSE TESTIMONY DURING PUNISBMENT HEARmG LMPROPERLY EXCLUDED: In t h i s death penal ty case, t h e T/C excluded testimony from f i v e defense witnesses who had known t h e D a l l t h e i r l i v e s t o t h e e f f e c t t h a t he was unl ike ly t o commit v io l en t act5 i n t h e fu tu re .

The l e g a l issue t o be submitted t o t h e jury was "whether t he r e is a p robab i l i ty t h a t t he D would commit cr iminal a c t8 of violence t h a t would c o n s t i t u t e a continuing khreat t o soc ie tyH.

That opinion testimony by a conpetent witness on the matter placed d i r e c t l y i n i s sue by A r t , 3?.071(b)(21 is re levant and of a s s i s t ance t o t h e jury as a proposi t ion go w e l l s e t t l e d i n th i s s t a t e t h a t t h e c i t a t i o n of a l l a u t h o r i t i e s would be an exhausting e~erc ise . A s g!& 5- % &&&, 609 S .W.2d 762 (Tex. Cr . App. 1980) held, when t h e witness is a l a y person, h i s competence is es tab l i shed by a showing that he has s u f f i c i e n t f i r s tband f a m i l i a r i t y with t h e defendant 's personal h i s to ry .

In J L ~ &&a, 595 S.W.2d 516 Piex, Cr . App. 19801, t h e opinion of t h e l a y witness who was in t imate ly aewa in t ed with Esquivel 's cr iminal corrduct f o r a 25 year period w a s permitted, over objec t ion , t o t e s t i f y d i r e c t l y upon t h e u l t imate f a c t issue framed by A r t . 27.07tb)(2) C.C.P. I n overrul ing Esquivel 's COn- t en t i on on appeal t h a t t h e witness was not competent t o give such testimony, t he cour t s t a ted :

'I. . . In Y, 574 S.W.2d 129, we noted t h a t l ay opinion is admissible on many d i f f e r e n t subjects :

' In t h i s s t a t e , t h e opinions of l a y witnesses, when competent, are admissible concerning s an i t y , insan i ty , value, handha i t i n g , . in tox ica t ion, physica l condition--health andi d i sease , estimates of age, s fze , weight, quan t i ty , time, d is tance , speed, i d e n t i t y of persons and th ings . . .In.

The dompetence of t he witness t o p r ed i c t t h a t Esquivel would commie fu tu r e a c t s of violence was held t~ go t o t h e weight r a t h e i than the admiss ib i l i ty of t h e evidence. On the other

hand, i n Sanne and u u L m e , 609 S.W.2d 762 (Tex. Cr. App. 19801, t h e c o u r t reversed because t h e s t a t e ' s evidence d i d no t show t h a t t h e f o r e n s i c p a t h o l o g i s t d i d no t have f i r s t h a n d f a m i l i a r i t y wi th S k i l l e r n ' s pe r sona l h i s t o r y t o q u a l i f y him t o t e s t i f y t h a t t h e r e was a p r o b a b i l i t y t h a t he would commit c r imi - n a l a c t s of v io l ence t h a t would c o n s t i t u t e a cont inu ing t h r e a t t o s o c i e t y .

The c o u r t s t a t e d t h e u l t i m a t e ques t ion a s whether t h e same r a t i o n a l e should apply t o t h e a d m i s s i b i l i t y of evidence o f f e r e d by t h e defendant a t t h e punishment phase of a c a p i t a l murder t r i a l , and answered it i n t h e a f f i r m a t i v e . See Rehinfign Y, Sf;& 548 S.W.2d 63, 65-66 (Tex. C r . App. 1977) . Thus, t h e s t a t e ' s o b j e c t i o n t o t h e w i t n e s s ' s t es t imony was t o t h e weight and no t t h e a d m i s s i b i l i t y t h e r e o f ; t h e tes t imony was admiss ib le f o r whatever va lue it might have i n a s s i s t i n g t h e j u r y ' s determina- t i o n of t h e second punishment i s s u e .

The c o u r t f u r t h e r he ld t h a t it was r e v e r s i b l e e r r o r t o dep r ive t h e j u r y of t h e oppor tun i ty t o cons ide r t h e op in ions of t h o s e who b e s t knew t h e person whose f a t e t h e y were t o determine, and with it, t h e oppor tun i ty t o r e j e c t , a c c e p t , and a s s i g n weight t o evidence concededly r e l e v a n t , which, a s t h e exc lus ive a r b i t e r s of f a c t , was t h e j u r y ' s s o l e func t ion . To have t h e j u ry f u l f i l l t h a t r o l e on t h e b a s i s of evidence admit ted o r excluded i n an even banded f a sh ion wi thout regard t o which p a r t y o f f e r s it is a c a p i t a l de fendan t ' s r i g h t .

STATE'S EVIDENCE SUFFICIENT TO SUPPORT AFFIRMATIVE VERDICT AS TO SECOND ISSUE I N CAPITAL CASE: The c o u r t concludes because of t h e shocking c i rcumstances of t h e o f f e n s e h e r e i n and t h e D ' s primary r o l e i n it , which even t s i s a most dangerous a p p a r i t i o n of c h a r a c t e r , t h e c o u r t could n o t s a y t h e j u ry was u n j u s t i f i e d i n r e t u r n i n g an a f f i r m a t i v e v e r d i c t t o t h e second s p e c i a l i s s u e based a lone on t h e f a c t s of t h e o f f e n s e . Jij.ng, 631 S.W.2d 486; B u m , 556 S.W.2d 270. The D and h i s con fede ra t e s i n t h i s ca se abducted two of t h e v i c t ims a t gunpoint and took them t o t h e s i t e of a jewelry s t o r e robbery where t h e y abducted t h e t h i r d v i c t im and then planned t o k i l l them a l l . Af t e r holding t h e v i c t ims hostage f o r a day, Appel lant and h i s con fede ra t e s moved them t o an i s o l a t e d r u r a l l o c a t i o n where t h e y were he ld another day. They bought some lime and prepared a common grave. A l l v i c t ims were gagged, bound wi th a i r cond i t i on ing duc t t a p e , seda ted by a t r a n q u i l i z e r , and executed a t t h e g r a v e s i t e , t hen covered with l ime dur ing t h e b u r i a l . Each v i c t i m had been sho t between 7 and 9 t imes. One of t h e weapons was a .45 c a l i b r e machine gun. Appe l l an t ' s confess ion r e l a t e d t h a t he was s t and ing by t h e grave a f t e r t h e v i c t i m s h a d been s h o t and pushed i n when one of t h e v i c t ims looked u p and took h i s b l i n d f o l d o f f , jumped o u t of t h e grave and ran . The D f i r e d twice a t him with a .25 c a l i b r e magnum, missed, cocked, and f i r e d a g a i n and t h i s t i m e h i t him i n t h e back of t h e head. The D dragged t h e body t o t h e grave and threw him i n . The record does no t i n d i c a t e d t h a t t h e D had ever been convic ted of a v i o l e n t o f f e n s e o r had ever committed an unadjudicated v i o l e n t a c t . Judge C l in ton , by f o o t n o t e , " reaches


t h i s conc lus ion ( a s w r i t e r of t h i s op in ion) wi th much h e s i t a t i o n and remains convinced t h a t c o n s t i t u t i o n a l pronouncements d i c t a t e it is a p p r o p r i a t e i n only t h e r a r e s t i n s t a n c e s . See, e.g., W n yr S m r S . W . 2 d - (Tex. Cr. App. #60,133, d e l . 7/11/84) (op in ion d i s s e n t i n g ) ; and OIBrvan. YL LZak, 591 S.W.2d 464 (Tex. C r . App. 1979) (opinion d i s s e n t i n g ) .

CALIFORNIA V. TROMBETTA, No . 83-305, 6/11/84, J u s t i c e Pfarshal l . 104, S.Ct. 2528 (1984)

DUE PROCESS CLAUSE DOES NOT REQUIRE LAW ENFORCEMENT AGENCIES PRESERVE BREATH SAMPLES OF SUSPECTED DRUNK DRIVERS I N ORDER FOR RESULTS OF BREATH ANALYSIS TEST TO BE ADMISSIBLE I N CRIMINAL PROSECUTIONS.

When stopped i n u n r e l a t e d i n c i d e n t s on susp ic ion of drunken d r i v i n g on C a l i f o r n i a highways, each respondent submit ted t o a I n t o x i l y z e r ( b r e a t h a n a l y s i s ) t e s t s and r e g i s t e r e d a blood a l c o h o l concen t r a t i on h igh enough t o be presumed t o be i n t o x i c a t e d under C a l i f o r n i a law. Although it was t e c h n i c a l l y f e a s i b l e t o p re se rve samples of respondents ' b r e a t h , t h e a r r e s t i n g o f f i c e r s , a s was t h e i r o r d i n a r y p r a c t i c e , d i d n o t do so . Respondents were then a l l charged with d r i v i n g whi le i n t o x i c a t e d . P r i o r t o t r i a l , t h e Municipal Court denied each r e sponden t ' s motion t o suppress t h e I n t o x i l y z e r test r e s u l t s on t h e ground t h a t t h e a r r e s t i n g o f f i c e r s had f a i l e d t o p re se rve samples of respondents ' b r e a t h t h a t t h e respondents claim would have enabled them t o impeach t h e i nc r imina t ing t e s t r e s u l t s . Ul t imate ly , i n conso l ida t ed proceedings , t h e C a l i f o r n i a Court of Appeal r u l e d i n respondents ' f a v o r , concluding t h a t due p roces s demanded t h a t t h e a r r e s t i n g o f f i c e r s p r e s e r v e t h e b r e a t h samples.

HELD: The Due Process Clause of t h e Fourteenth Amendment does no t r e q u i r e t h a t law enforcement agenc ie s p re se rve b r e a t h samples i n o rder t o i n t roduce b rea th -ana lys i s t e s t s a t t r i a l , and t h u s h e r e t h e S t a t e ' s f a i l u r e t o p re se rve b r e a t h samples f o r respondents d i d no t c o n s t i t u t e a v i o l a t i o n of t h e Federa l C o n s t i t u t i o n .

To t h e e x t e n t t h a t respondents ' b r e a t h samples came i n t o t h e C a l i f o r n i a a u t h o r i t i e s ' pos ses s ion , it was f o r t h e l i m i t e d purpose of p rov id ing raw d a t a t o t h e I n t o x i l y z e r . The evidence t o be p re sen ted a t t r i a l was n o t t h e b r e a t h i t s e l f bu t r a t h e r t h e I n t o x i l y z e r r e s u l t s ob ta ined from t h e b r e a t h samples. The a u t h o r i t i e s d i d n o t d e s t r o y t h e b r e a t h samples i n a c a l c u l a t e d e f f o r t t o circumvenC t h e due process requirement of m y YA B a w n d , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 and its progeny t h a t t h e S t a t e d i s c l o s e d t o c r i m i n a l defendants m a t e r i a l evidence i n its possess ion , b u t i n f a i l i n g t o p re se rve t h e sample t h e a u t h o r i t i e s ac t ed i n good f a i t h and i n accord wi th t h e i r normal p r a c t i c e .

SDR-6 VOICE for the DefenselSeptember 1984

More importantly, California's policy of not preserving breath samples is without constitutional defect. The constitutional duty of the States to preserve evidence is limited to evidence that might be expected to play a role in the suspect's defense. The evidence must possess an exculpatory value that was apparent before it was destroyed, and must also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Neither of these conditions was met on the facts of this case.

In reaching its conclusion, the Court reviewed the historial area of constitutionally guaranteed access to evidence. United f3LaM L V m u l a - B ~ r n a l , 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982).

"Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and insuring the integrity of our criminal justice system.

The most rudimentary of the access-to-evidence cases impose upon the prosecution a constitutional obligation to report to the defendant and to the trial court whenever government witnesses lie under oath. N m L U b Q . i $ r 360 U.S. 264, 79 S.Ct. 1173. 3 L.Ed.2d 1217 (1959); see also Moonev ya ~ & h a n , 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). But criminal defendants are entitled to much more than protection against perjury. A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. YL Mayland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Even in the absence of a specific request, the prosecution has the constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant's guilt. ~~ SLaf;az L &LUG, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). The prosecution must also reveal the contents of plea agreements with key government witnesses. Gialio y, Ilniked SL&%ir 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and under some circumstances may be required to disclose the identity of undercover informants who possess evidence critical to the defense, WY-Q YL Ilait;eh S b k £ S r 353 U.S. 531 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

September 1984/VOICEfor tha Defmse SDR-7

Less clear from our access-to-evidence is the extent to which the Due Process Clause imposes on the government the additional responsibility of guaranteeing criminal defendants access to exculpatory evidence beyond the government's possession. On a few occa- sions, we have suggested that the government might transgress constitutional limitations if it exercised its sovereign powers so as to hamper a criminal defendant's preparation for trial.. For instance, in L h & d &&s L Ea-, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) and in Utxkcd SLake~ Y, mas?Ger 431 U.S. 783, 795 note 17, 97 S.Ct. 2044, 2051 note 17, 52 L.Ed.2d 752 Cl977), we intimated that a due process violation might occur if the government delayed an indictment for so long that the defendant's ability to mount an effective defense was impaired. Similarly, in unihxl S W x x i L l Q k i I U d = B m r supra, we acknowledge that the government could offend the Due Process Claus if, by deporting potential witnesses, it diminished a defendant's opportunity to put on an effective defense. *** What duty the constitution imposes on the states to preserve evidence (in this case the issue concerned preserving breath samples), that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality . . . evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Neither of these conditions is met on the facts of this case."

The Court also indicated that in other related cases arising under the Sixth and Fourteenth Amendments, it had recognized that criminal defendants are entitled to call witnesses on their own behalf and to cross examine witnesses who have testified on the government's behalf. See €?BY& L e 3 ; ~ ~ h , 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Ba&F~g&a u, % x a , 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).

Finally, the Court ,recognized that in its prosecutorial disclosure cases, it had imposed a similar requirement of materiality (United States v. Agurs) and had rejected the notion that a prosecutor has a constitutional duty routinely to deliver his entire file to defense counsel. LWJxd Sk&xs L Equrs, 427 U.S. at 1.11, 96 S.Ct. at 2401; see also &ere L LLlin~is, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972) ("we know of no constitutional requirement that the prosecution make a com-

plete and detailed accounting to the defense of all police inves- tigatory work on a case").

MABRY V. JOHNSON, NO. 83-328, 104 S.Ct. 2543 (1984), Justice Stevens.

PLEA BARGAIN: PETITIONER'S ACCEPTANCE OF PROSECUTOR'S PROPOSED PLEA BARGAIN DID NOT CREATE CONSTITUTIONAL RIGHT TO HAVE BARGAIN SPECIFICALLY ENFORCED AND PETITIONER COULD NOT SUCCESSFULLY ATTACK SUBSEQUENT GUILTY PLEA.

After respondent was convicted in an Arkansas state court on charges of burglary, assault, and murder, the Arkansas Supreme Court set aside the murder conviction, and plea negotiations ensued. A deputy prosecutor proposed to respondent's attorney that in exchange for a guilty plea to a charge of accessory after a felony murder, the prosecutor would recommend a 21 year sentence to be served concurrently with the concurrent burglary and assault sentences. However, when defense counsel called the prosecutor three days later and communicated respondent's acceptance of the offer, the prosecutor told counsel that a mistake had been made and withdrew the offer. He proposed instead that in exchange for a guilty plea he would recommend a 21 year sentence to be served consecutively to the other sentences. Respondent rejected the new offer, but after a mistrial was declared, he ultimately accepted the prosecutor's second offer, and the trial judge imposed a 21 year sentence to be served consecutively to the previous sentences. After exhausting state remedies, respondent sought habeas corpus relief in Federal District Court with respect to his guilty plea. The court dismissed the petition, holding that respondent had understood the consequences of his guilty plea; that he had received effective assistance of counsel; and that because it was not established that he had detrimentally relief on the prosecutor's first proposed plea agreement, respondent had no right to enforce it. However, the Court of Appeals reversed, holding that "fairness" precluded the prosecution's withdrawal of the plea proposal once accepted by respondent.

HELD: Respondent's acceptance of the prosecutor's first proposed plea bargain did not create a constitutional right to have the bargain specifically enforced, and he may not successfully attack his subsequent guilty plea. Plea agreements are consistent with the requirements that guilty pleas be made voluntarily and intelligently. If a defendant was not fairly apprised of its consequences, his guilty plea can be challenged under the Due Process Clause. And when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand. However, respondent's plea was in no sense induced by the prosecutor's withdrawn offer, and it rested on no unfulfilled promise; he knew the prosecution would recommend a 21 year consecutive sentence. Thus, because it did not impair the


voluntariness or intelligence of his guilty plea, respondent's inability to enforce the prosecutor's first offer is without constitutional significance. Neither is the question whether the prosecutor was negligent or otherwise culpable in first making and then withdrawing his offer relevant.

"A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harrassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor 's business (e .g., bribes) ."

ARTaUR COMPANY, 104 S.Ct. 1495 (1984), Chief Justice Burger.

WORK PRODUCT IMMUNITY: TAX ACCRUAL WORK PAPERS PREPARED BY A CORPORATION'S INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT IN THE COURSE OF REGULAR FINANCIAL AUDITS ARE NOT PROTECTED FROM DISCLOSURE IN THE RESPONSB TO AN INTERNAL REVENUE SERVICE SUMNONS ISSUED UNDER SECTION 7602 OF THE INTERNAL REVENUE CODE OF 1954 (CODE), 26 U.S.C. SECTION 7602.

Respondent certified public accountant firm, as the independent auditor for respondent corporation, was responsible for reviewing the corporation's financial statements as required by the federal securities laws. In the course of reviewing these statements, the accounting firm verified the corporation's statement of its contingent tax liabilities, and, in so doing, prepared tax accrual workpapers relating to the evaluation of the corporation's reserves for such liabilities. When a routine audit by the Internal Revenue Service IIRSI to determine the corporation's income tax liability for certain years revealed that the corporation had made questionable payments from a "special disbursement account", the IRS instituted a criminal investigation of the corporation's tax returns. In that process, the IRS, pursuant to Sec. 7602 of the Internal Revenue Code of 1954--which authorizes the Secretary of the Treasury to summon and "examine any books, appers, records, or other data which may be relevant or materialn to a particular tax inquiry--issued a summons to the accounking firm requiring it to make available to the IRS all of its files relating to the corporation, including its tax accrual workpapers. When the corporation instructed the accounting firm not to comply with the summons, the IRS commenced an enforcement action in Federal District Court, which, upon finding that the tax accrual workpapers were relevant to the IRS investigation within the meaning of Sec. 7602 and refusing to recognize an accountant-client privilege that would protect the

I SDR-10 VOICEfor the aefense/Sepptember 1984

workpapers, ordered the summons enforced. The Court of Appeals affirmed in part and reversed in part. While agreeing that the workpapers were relevant to the IRS investigation, the court held that the public interest in promoting full disclosure to public accountants, and in turn ensuring the integrity of the securities markets, required protection under a work-product immunity doctrine for the work that independent auditors perform for publicly owned corporations. Accordingly, because it found that the IRS had not made a sufficient showing of need to overcome the immunity and was not seeking to prove fraud on the corporation's part, the court refused to enforce the summons insofar as it sought the tax accrual workpapers.

HELD: (1) The tax.accrua1 workpapers are relevant within the meaning of Sec. 7602. As Sec. 7602's language indicates, an IRS summons is not to be judged by the relevance standards used in deciding whether to admit evidence in court. The language "may be" reflects Congress' intention to allow the IRS to obtain items of even potential relevance to the ongoing investigation, without reference to its admissibility. As a discovery tool, a Sec. 7602 summons is critical to the IRSqs investigative and enforcement functions. That the tax accrual workpapers are not actually used in the preparation of tax returns by the taxpayer or its accountants does not bar a finding of relevance within the meaning of Sec. 7602.

(2) The tax accrual workpapers are not protected from disclosure under Sec. 7602.

(a) While Sec. 7602 is subject to traditional privileges and limitations, any other restrictions upon the IRS summons power should be avoided "absent unambiguous directions from Congress." United States Y_L Bisce-, 420 U.S. 141, 150, 95 S.Ct. 915, 921, 43 L.Ed.2d 88. There are no such unambiguous directions that would justify a judicially created work-product immunity doctrine for tax accrual workpapers summoned under Sec. 7602. Indeed, Sec. 7602 reflects a congressional policy favoring disclosure of all information relevant to a legitimate IRS inquiry.

(b) In light of CQUGLI E United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548, which held that no confidential accountant- client privilege exists, the Court of Appeals' creation of a work-product privilege was misplaced and conflicts with Congress1 clear intent.

(c) Nor is a work-product immunity for accountants' tax accrual workpapers a fitting analogue to the attorney work-product doctrine. An independent certified public accountant performs a different role from an attorney whose duty, as his client's confidential adviser and advocate, is to present the client's case in the most favorable possible light. In certifying the public reports that depict a corporation's financial status, the accountant performs a public responsibility transcending any employment relationship with the client, and owes allegiance to the corporation's creditors and stockholders, as well as to the

September l984/VOICE for the Defense SDR-11

investing public.

(dl The integrity of the securities markets will not suffer absent some protection for accountants' tax accrual workpapers. The independent auditor's obligation to serve the public interest assures that that integrity will be preserved, without the need for a work-product immunity for such workpapers.

(el Nor does enforcement of an IRS summons for accountants' tax accrual workpapers give the IRS an unfair advantage in negotia- ting and litigating tax controversies. Since the Securities and Exchange Commission or a private plaintiff in securities litigation would be entitled to obtain the tax accrual workpapers at issue, there is no good reasan, in light of Sec. 7602's broad congressional command, for conferring lesser authority upon the IRS . L W T E D STATES V. CRONIC, 104 S.Ct. 2039 (1984), Justice Stevens.

EFFECTIVE ASSISTANCE OF COUNSEL: COURT HELD THAT THE FACT THAT COUNSEL WAS GIVEN ONLY 25 DAYS TO PREPARE FOR TRIAL, THAT COUNSEL WAS YOUNG AND INEXPERIENCED IN CRIMINAL MATTERS, THAT CHARGES WERE COMPLEX, THAT CHARGES WERE GRAVE, AND THAT SOME WITNESSES WERE NOT EASILY ACCESSIBLE DID NOT PROVIDE BASIS FOR FINDING - - -

INEFFECTIVE ASSISTANCE OF COUNSEL IN THE ABSENCE OF SHOWING OF ACTUAL INEFFECTIVENESS.

Respondent and two associates were indicted on mail fraud charges involving a "check kiting" scheme whereby checks were transferred between a bank in Florida and a bank in Oklahoma. When

X respondent's retained counsel withdrew shortly before the scheduled trial date, the District Court appointed a young lawyer: with a real estate practice who had never participated in a jury trial to represent respondent, but allowed him only 25 days tq prepare for trial, even though the Government had taken over 4 1/2 years to investigate the case and had reviewed thousands of documents during that investigation. Respondent was convicted, but the Court of Appeals reversed, because it inferred thab respondent's right to the effective assistance of counsel under the Sixth Amendment had been violated. Finding it unnecessary ta inquire into counsel's actual performance at trial, the court based its inference on the circumstances surrounding the representation of respondent, particularly (1) the time afforded for investigation and preparation, (2) the experience of counsel, ( 3 ) the gravity of the charge, (4) the complexity of possibla defenses, and (5) the accessibility of witnesses to counsel.

, HELD: The Court of Appeals erred in utilizing an inferential approach in determining whether respondent's right to the effective assistance of counsel had been violated.

(a) The right to the effective assistance of counsel is the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true

SDR-12 VOICEfor the DefenselSeptember 1984

adversarial criminal trial has been conducted, the kind o, testing envisioned by the Sixth Amendment has occurred.

(b) Here, while the Court of Appeals purported to apply a standard of reasonably competence, it did not indicate that there had been an actual breakdown of the adversarial process during a trial. Instead, it concluded that the circumstances surrounding the representation of respondent mandated an inference that counsel was unable to discharge his duties. Only when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel's actual performance at trial.

(c) The five criteria identified by the Court of Appeals as the circumstances surrounding respondent's representation warranting a finding of ineffective assistance of counsel, while relevant to an evaluation of a lawyer's effectiveness in a particular case, neither separately nor in combination provide a basis for concluding that competent counsel was not able to provide this respondent with the guiding hand that the Constitution guarantees.

(d) This case is not one in which the surrounding circumstances make it unlikely that the defendant could have received the effective assistance of counsel. The criteria used by the Court of Appeals do not demonstrate that counsel failed to function in any meaningful sense as to the Government's adversary. Respondent can make out a claim of ineffective assistance of counsel only by pointing to specific errors made by trial counsel.

UNITED STATES Y, D a , 104 S.Ct. 1237 119841, Justice Powell.

MOTION TO QUASH SUBPOENAS: COURT HELD THAT CONTENTS OF BUSINESS RECORDS WERE NOT PRIVILEGED BUT ACT OF PRODUCING RECORDS WAS PRIVILEGED AND COULD NOT BE COMPELLED WITHOUT A STATUTORY GRANT OF USE IMMUNITY.

During a federal grand jury investigation of corruption in the awarding of county and municipal contracts, subpoenas were served on respondent owner of sole proprietorships demanding production of certain business records of several of his companies. Respondent then filed a motion in federal district court seeking to quash the subpoenas. The district court granted the motion (except as to records required by law to be kept or disclosed to a public agency), fjrnding that the act of producing the records would involve testimonial self-incrimination. The Court of Appeals affirmed, holding that the records were privileged, that the act of producing them also would have "communicative aspects of its own" in that the turning over of the records to the grand jury would admit their existence, possession, and authenticity, and that hence respondent was entitled to assert his Fifth Amendment privilege against compelled self-incrimination rather

September 1984/VOICEfor theDefense SDR-13

than produce the records. The court further held that in view of the Government's failure to make a formal request for use immunity under 18 U.S.C. 6002 and 6003, it was proper to reject the Government's attempt to compel delivery of the records.

HELD: 1. The contents of the subpoenaed records in question are not privileged under the Fifth Amendment. That amendment only protects the person asserting the privilege from compelled self- incrimination. F a 5 United k3z&e,sr 425 U.S. 391. When the preparation of business records is voluntary, no compulsion is present. Here, respondent does not claim that he prepared the records involuntarily or that the subpoenas would force him to restate, repeat, or affirm the truth of the records' contents. The fact that the records are in his possession is irrelevant to the determination of whether the creation of the records was compelled.

2. The act of producing the documents at issue in this case is privileged.

3. The act of producing the subpoenaed documents cannot be compelled without a statutory grant of use immunity pursuant to 18 U.S.C. 6002 and 6003. This Court will not extend the jurisdiction of courts to include prospective grants of use immunity under a doctrine of constructive use immunity (as the Government urges), in the absence of the formal request that the statute requires.

PRESS-ENTERPRIS a. V. SUPERIOR COURT OF CAL., 104 S.Ct. 819, Chief Justice Burger.

OPEN PROCEEDINGS IN CRIMINAL TRIALS: COURT HELD THAT THE GUARANTEES OF OPEN CRIMINAL PROCEEDINGS APPLIES TO VOIR DIRE EXAMINATIONS AND TRIAL COURT COULD NOT CONSTITUTIONALLY CLOSE ALL BUT THREE DAYS OF SIX WEEKS OF VOIR DIRE TO PROTECT PRIVACY INTERESTS OF PROSPECTIVE JURORS WITHOUT CONSIDERING ALTERNATIVES TO CLOSURE AND WITHOUT ARTICULATING FINDINGS TO SUPPORT THE BROAD ORDER.

Before the voir dire examination of prospective jurors began at a trial in California Superior Court for the rape and murder of a teenage girl, petitioner moved that the voir dire be open to the public and the press. The State opposed the motion, arguing that if the press were present, juror responses would lack the candor necessary to assure a fair trial. The trial judge agreed and permitted petitions to attend the "general" but not the "individual" voir dire proceedings. All but approximately three days of the 6-week voir dire was thus closed to the public. After the jury was empaneled, petitioner moved for release of the complete transcript of the voir dire proceedings, but both defense counsel and the prosecutor argued that release of the transcript would violate the jurors' right to privacy. The court denied the motion and, after the defendant had been convicted and

SDR-14 VOICEfor the DefenselSeptember 1984

sentenced t o d e a t h , denied p e t i t i o n e r ' s second a p p l i c a t i o n f o r r e l e a s e of t h e v o i r d i r e t r a n s c r i p t . P e t i t i o n e r t hen sought i n t h e C a l i f o r n i a Court of Appeal a w r i t of mandate t o compel t h e t r i a l c o u r t t o r e l e a s e t h e t r a n s c r i p t and vaca te t h e order c l o s i n g t h e v o i r d i r e proceedings. The p e t i t i o n was denied, and t h e C a l i f o r n i a Supreme Court denied p e t i t i o n e r ' s r eques t f o r a hear ing.

HELD: 1. The guaran tees of open p u b l i c proceedings i n c r i m i n a l t r i a l s cover proceedings f o r t h e v o i r d i r e examination of p o t e n t i a l j u r o r s .

( a ) The h i s t o r i c a l even t r e v e a l s t h a t t h e process of s e l e c t i o n o f j u r o r s has presumptively been a p u b l i c p roces s wi th except ions on ly f o r good cause shown. The presumptive openness of t h e j u ry s e l e c t i o n p roces s i n England c a r r i e d over i n t o proceedings i n c o l o n i a l America, and p u b l i c j u r y s e l e c t i o n was t h e common p r a c t i c e i n America when t h e C o n s t i t u t i o n was adopted.

(b ) Openness enhances both t h e b a s i c f a i r n e s s of t h e c r i m i n a l t r i a l and t h e appearance of f a i r n e s s s o e s s e n t i a l t o p u b l i c conf idence i n t h e c r i m i n a l j u s t i c e system. Pub l i c proceedings v i n d i c a t e t h e concerns of t h e v i c t ims and t h e community i n knowing t h a t o f f ende r s a r e be ing brought t o account f o r t h e i r c r i m i n a l conduct by j u r o r s f a i r l y and openly s e l e c t e d . Closed proceedings , a l though n o t a b s o l u t e l y precluded, must be r a r e and on ly f o r cause shown t h a t outweighs t h e va lue of openness. The presumption of openness may be overcome o n l y by an o v e r r i d i n g i n t e r e s t based on f i n d i n g s t h a t c l o s u r e is e s s e n t i a l t o p re se rve h igher va lues and is narrowly t a i l o r e d t o s e r v e t h a t i n t e r e s t .

1 2. The presumption of openness has n o t been r e b u t t e d i n t h i s case . There were no f i n d i n g s t o suppor t t h e t r i a l c o u r t ' s conc lus ion t h a t an open proceeding would t h r e a t e n t h e de fendan t ' s r i g h t t o a f a i r t r i a l and t h e p r o s p e c t i v e j u r o r s ' i n t e r e s t s i n p r ivacy . Even wtih f i n d i n g s adequate t o suppor t c l o s u r e , t h e c o u r t ' s o r d e r s denying acces s t o t h e v o i r d i r e t r a n s c r i p t f a i l e d t o cons ider whether a l t e r n a t i v e s were a v a i l a b l e t o p r o t e c t t h e p rospec t ive j u r o r s ' i n t e r e s t s . To p re se rve f a i r n e s s and a t t h e same t ime p r o t e c t l e g i t i m a t e p r ivacy , a t r i a l judge should inform t h e p rospec t ive j u r o r s , once t h e g e n e r a l n a t u r e of s e n s i t i v e ques t ions is made known t o them, t h a t t h o s e i n d i v i d u a l s b e l i e v i n g p u b l i c ques t ion ing w i l l prove damaging because of embarrassment,

I may p r o p e r l y r eques t an oppor tun i ty t o p r e s e n t t h e problem t o t h e judge i n camera bu t wi th counse l p r e s e n t and on t h e record . When l i m i t e d c l o s u r e is ordered , t h e c o n s t i t u t i o n a l va lues sought t o be p r o t e c t e d by ho ld ing open proceedings may be s a t i s f i e d l a t e r by making a t r a n s c r i p t of t h e c lo sed proceedings a v a i l a b l e w i th in a reasonable time, i f t h e judge determines t h a t d i s c l o s u r e can be accomplished whi le sa feguard ing t h e j u r o r ' s v a l i d p r ivacy i n t e r e s t s . Even t h e n a v a l i d p r ivacy i n t e r e s t may r i s e t o a l e v e l t h a t p a r t of t h e t r s r s c r i n t shou ld be s e a l e d , o r t h e name of a ju ro r wi thheld , t o p r o t e c t the person from embarrassment.


OLIVER V. UNITED STATES, 104 S.Ct. 1735 (1984), Justice Powell.

OPEN FIELDS DOCTRINE: THIS DOCTRINE IS APPLICABLE TO DETERMINE WHETHER THE DISCOVERY OR SEIZURE OF MARIJUANA IN QUESTION WAS VALID.

In No. 82-15, acting on reports that marijuana was being raised on petitioner's farm, narcotics agents of the Kentucky State Police went to the farm to investigate. Arriving at the farm, they drove past petitioner's house to a locked gate with a "No Trespassing" sign, but with a footpath around one side. The agents then walked around the gate and along the road and found a field of marijuana over a mile from petitioner's house. Petitioner was arrested and indicted for "manufacturing" a "con- trolled substance" in violation of a federal statute. After a pretrial hearina. the district court sup~ressed evidence of the Giscovery of <he marijuana fields, abplying y, United

389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (19671, and holding that petitioner had a reasonable expectation that the fields would remain private and that these were not "open" fields that invited casual intrusion. The Court of Appeals reversed, holding that had not impaired the vitality of the "open fields" doctrine of Hester L W states, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), which permits police officers to enter and search a field without a warrant. In No. 82-1273, after receiving a tip that marijuana was being grown in the woods behind respondent's residence, police officers entered the woods by a path between the residence and a neighboring house, and followed a path through the woods until they reached two marijuana patches fenced with chicken wire and having "No Trespassing" signs. Later, the officers, upon determining that the patches were on respondent's property, obtained a search warrant and seized the marijuana. Respondent was then arrested and indicted. The Maine trial court granted respondent's motion to suppress the fruits of the second search, holding that the initial warrantless search was unreasonable, that the "No Trespassing" signs and secluded location of the marijuana patches evidenced a reasonable expectation of privacy, and that therefore the "open fieldsn doctrine did not apply. The Maine Supreme Judicial Court affirmed.

HELD: The "open fields" doctrine should be applied in both cases to determine whether the discovery or seizure of the marijuana in question was valid.

(a) That doctrine was founded upon the explicit language of the Fourth Amendment, whose special protection accorded to "persons, houses, papers, and effects" does "not extend to the open fields." ILg- E W States. w, at 59, 44 S.Ct. at 446. Open fields are not "effects" within the meaning of the amendment, the term "effects' being less inclusive that "property" and not encompassing open fields. The government's intrusion upon open fields is not one of those "unreasonable searches" proscribed by the amendment.

(b) Since KaLz L LZ. States, S-, the touchstone of Fourth Amendment analysis has been whether a person has a "constitutionally protected reasonable expectation of privacy." Id., 389 U.S. at 360, 88 S.Ct. at 516. The amendment does not protect the merely subjective expectation of privacy, but only "those expectations that society is prepared to recognize as 'reasonable'". Id., at 361, 88 S.Ct. at 516. Because open fields are accessible to the public and the police in ways that a home, office, or commercial structure would not be, and because fences or "No Trespassing" signs do not effectively bar the public from viewing open fields, the asserted expectation of privacy in open fields is not one that society recognizes as reasonable. Moreover, the common law, by implying that only the land immediately surrounding and associated with the home warrants the Fourth Amendment protections that attach to the home, conversely implies that no expectation of privacy legitimately attaches to open fields.

(c) Analysis of the circumstances of the search of an open field on a case-by-case basis to determine whether reasonable expectations of privacy were violated would not provide a workable accommodation between the needs of law enforcement and the interests protected by the Fourth Amendment. Such an ad hoc approach not only would make it difficult for the policeman to discern the scope of his authority but would also create the danger that constitutional rights would be arbitrarily and inequitably enforced.

(dl Steps taken to protect privacy, such as planting the marijuana on secluded land and erecting fences and "No Trespassing" signs around the property, do not establish that expectations of privacy in an open field are legitimate in the sense required by the Fourth Amendment. The test of legitimacy is not whether the individual chooses to conceal assertedly "private" activity, but whether the government's intrusion infringes upon the personal and societal val-ues protected by the amendment. The fact that the government's intrusion upon an open field is a trespass at common law does not make it a "search" in the constitutional sense. In the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment.

WhCBUSETTx Y, 104 S.Ct. 2085 (19841, Per Curiam.

SEARCH AND SEIZURE a-- REAFFIRMANCE OF GATES "TOTALITY OF THE CIRCUMSTANCES" TEST: THE COURT ESSENTIALLY HELD THAT THE TOTALITY OF THE CIRCUMSTANCES TEST, RATHER THAN THE TWO PRONGED TEST WAS APPLICABLE TO DPTERMINING THE VALIDITY OF A SEARCH WARRANT ISSUED ON THE BASIS OF AN AFFIDAVIT wnrcn RELIEF ON AN INFORMANT'S TIP, AND THE AFFIDAVIT WAS SUFFICIENT TO ESTABLISH PROBABLE CAUSE.

September 1984/YOICE for the Defei~se SDR-17

In Illinoig yz Gates, U . S . -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) the court held that:

(1) The Fourth Amendment's requirement of probable cause for the issuance of a warrant is to be applied, not according to a fixed and rigid formula, but rather in the light of the "totality of the circumstances" made known to the magistrate; and

(2) The task of a reviewing court is not to conduct a de novo determination of probable cause, but LXQ ;a& whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant.

Facts: At noon on 9/11/80 Lt. Bealand assisted in the execution of a search warrant for a motel room reserved by Kelleher at the Snug Harbor Motel in West Yarmouth. The search produced several items of identification, including credit cards, belonging to two persons whose homes had recently been burglarized. Other items taken in the burglaries, such as jewelry, silver and gold were not found at the motel.

At 3:20 p.m. on the same day, Lt. Bealand received a call from an unidentified female who told him that there was a motor home full of stolen stuff parked behind 85 Jefferson Avenue, the home of respondent Upton and his mother. She said that the stolen items included jewelry, silver, and gold. She further said that Upton was going to move the motor home anytime now because of the fact that Kelleherls motel room was raided and that Upton had purchased these stolen items from Kelleher. This unidentified female stated that she had seen the stolen items but refused to identify herself because Upton would kill her. Bealand told the female that he knew who she was, giving her the name of Alberico whom he had met on 5/16/80 at Upton's repair shop off Summer Street in Yarmouth Port. She was identified to Bealand by Upton as being his girlfriend, Lynn Alberico. The unidentified female admitted that she was the girl that Bealand had named, stating that she was surprised that Bealand knew who she was. She then told Bealand that she had broken up with Upton and wanted to burn him. She would not give Bealand her address or phone number but said she would contact him in the future if need be.

After the phone call, Lt. Bealand went to Upton's house to verify that a motor home was parked on the property. Then while other officers watched the premises, Lt. Eealand prepared the application for a search warrant, setting out all the information noted above in an accompanying affidavit. He also attached the police reports on the two prior burglaries, along with lists of the stolen property. A magistrate issued the warrant and a subsequent search of the motor home produced the items described by the caller and other incriminating evidence. The discovered evidence led to Upton's conviction on multiple counts of burglary, receiving stolen property, and related crimes.

SDR-18 VOICE for the Defense/September 1984

The Massachusetts Supreme Judicial Court, in its opinion, continued to rely upon the approach set forth in E g ~ U and Spinelli, and further stated that it did not believe the Gates opinion significantly changed the Fourth Amendment treatment of applications for search warrants. That court concluded that more substantial corroboration was needed in this case and held that the search warrant violated the Fourth Amendment.

The U.S. Supreme Court made it clear that had rejected as hypertechnical the "two pronged test", and reaffirmed the totality of the circumstances analysis in !Z&?s. The court also criticized the supreme judicial court of Massachusetts for failing to grant any deference to the decision of the magistrate to issue a warrant in this case and for conducting its own de novo probable cause determination.

"A deferential standard of review is appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant."

The court then concluded that when the facts in this case were examined in light of G m , Lt. Bealand's affidavit provided a substantial basis for the issuance of the warrant.

"No single piece of evidence in it is conclusive. But the pieces fit neatly together and, so viewed, support the magistrate's determination that there was 'a fair probability that contraband or evidence of crime' would be found in Upton's motor home. "

The concurring opinion by Justice Stevens criticized the Massachusetts court further because it failed to address whether the search warrant was valid as a matter of state law. Stevens emphasized that if the search warrant did violate state law, much of the Massachusetts court's opinion and the U.S. Supreme Court's opinion was "for naught". By footnote, Justice Stevens pointed out that the U.S. Supreme Court decisions in S, D & Q ~ YI @pe~lE&nr 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) and in e v i l , - U.S. , 103 S.Ct. 916, 74 L.Ed.Zd 748 (19831, on remand to the state courts, were apparently held "for naught" as the respective state courts reinstated the respective state opinions "on state grounds"! See 247 N.W.2d 673 (1976) and 346 N.W.2d 425 (1984) respectively.

September 1984/VOICEfor the Defense SDR-19

WELSH V. WISCONSIN, 104 S.Ct. 2091 (19841, Justice Brennan.

PETITIONER'S ARREST WAS ILLEGAL--THUS PETITIONER'S REFUSAL TO TAKE BREATH TEST WAS REASONABLE, AND OPERATING PRIVILEGES COULD NOT BE REVOKED: The court held that the warrantless nighttime entry into arresteels home to arrest him for driving while under the influence of an intoxicant was prohibited by Fourth Amendment.

Facts: About 9 a.m. on a rainy night of 4/24/78 witness Jablonic observed a car being driven erratically. After changing speeds and veering from side to side, the car eventually swerved off the road and came to a stop in an open field. No damage to any person or property occurred. Concerned about the driver and fearing that the car would get back on the highway, Jablonic drove his truck up behind the car so as to block it from returning to the road. Another passerby also stopped at the scene, and Jablonic asked her to call the police. Before the police arrived, the driver of the car emerged from his vehicle, approached Jablonic's truck and asked Jablonic for a ride home. Jablonic instead suggested that they wait for assistance in removing or repairing the car. Ignoring Jablonic's suggestion, the driver walked away from the scene.

A few minutes later, the police arrived and questioned Jablonic. He told one officer what he had seen, specifically noting that the driver was either very inebriated or very sick. The officer checked the motor vehicle registration of the abandoned car and learned that it was registered to the petitioner (Welsh). In addition the officer noted that the petitioner's residence was a short distance from the scene, and therefore easily within walking distance.

Without obtaining any type of warrant, the police proceeded to petitioner's home, arriving about 9 p.m. When the petitioner's stepdaughter answered the door, the police gained entry into the house. (For purposes of this decision, the court assumed that there was no valid consent to enter the petitioner's home). Proceeding upstairs to the petitioner's bedroom, they found him lying naked in bed. The petitioner was immediately arrested for driving or operating a motor vehicle while under the influence of an intoxicant in violation of the Wisconsin statute. The petitioner was taken to the police station where he refused to submit to a breathalyzer test.

The petitioner was subjected to two separate but related proceedings. One concerned his refusal to submit to a breath test and the other, involved the alleged code violation for driving while intoxicated. Under Wisconsin law the first DWI carried only civil penalties and was therefore characterized as non-criminal.

Petitioner, having previously been cited for DWI, was charged with the criminal misdemeanor of DWI. Petitioner filed a motion

L 1SDR-20 VOICOfor the DefenselSeptember 1984

to dismiss this criminal complaint based upon his contention that the underlying arrest was invalid. After a hearing, the court concluded that the criminal complaint should not be dismissed because of the existence of both probable cause and exigent circumstances which justified the warrantless arrest. Petitioner was later convicted of DWI, at which trial the state introducted evidence of his refusal to submit to a breath test. His appeal from that conviction, now before the Wisconsin court of appeals, has been stayed pending the Supreme Court decision in this case.

Petitioner also filed a timely request for a "refusal hearing" (state law provided that before revoking an arresteels operating privileges, the court must determine that the refusal to submit to a test was unreasonable). As was done on petitioner's motion to dismiss the criminal complaint, the court ruled against petitioner at the refusal hearing, by concluding that the arrest of petitioner was lawful and therefore petitioner's refusal to take the breath test was therefore unreasonable. Accordingly the court issued an order suspending the petitioner's operating license for 60 days. Petitioner went through the Wisconsin appellate courts, and then the U.S. Supreme Court granted certiorari because of the important Fourth Amendment implications of the decisions below. The court by footnote, however, also stated that because state law provided that evidence of the petitioner's refusal to submit to a breath test was inadmissible if the underlying arrest was unlawful, this case did not implicate the exclusionary rule under the federal constitution. B m at 2095, footnote 5.

Searches and seizures inside a home without a warrant are presumptively unreasonably. P&xm L W W r 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). In Pavton the court specifically held that warrantless £el-ony arrests in the home are prohibited by the Fourth Amendment, absent probable cause and exigent circumstances. See also &l;r;higan Y, Clifi%ml, -U.S. - I 104 S.Ct. 641, 646, 78 L.Ed.2d 477 1980). u r n , allowing warrantless home arrests upon a showing of probable cause and exigent circumstances, was also expressly limited to felony arrests. The court has not yet considered whether the Fourth Amendment may impose an absolute ban on warrantless home arrests for certain minor offenses.

"Prior decisions of this court, however, have emphasized that exceptions to the warrant requirement are 'few in number and carefully delineated,' U n W &&es YL I l n M S t - District mrt , 407 U.S. at 318, 92 S.Ct. at 2137, and that the police bear a heavy burden when attempting to demonstrate an urgent need that might testify warrantless searches or arrests. Indeed, the court has recognized only a few such emergency conditions, see e.g. IlnitrdLXaLrs~ S a w , 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976) (hot pursuit of a fleeing felon); Wden L Bayden, 387


U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (same); g y , 384 U.S. 757, 86 S.Ct. 1826, 16 L.'d.2d 908 (1966) (destruction of evidence); u h i g a n L T-, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (ongoing fire), and has actually applied only the 'hot pursuit' doctrine to arrests in the home, see Santana , supra. "

The court then emphasized that when the government's interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.

". . . It is difficult to conceive of a warrantless home arrest that would not be unreasonable under the Fourth Amendment when the unlying offense is extremely minor."

The court held that an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. Further, although no exigency is created simply because there is probable cause to believe that a serious crime has been committed, application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense, such as the kind at issue in this case, has been committed.

The petitioner in this case was arrested in the privacy of his own bedroom for a non-criminal traffic offense (non-criminal that is, under Wisconsin law for a first offender, which is what the police knew at the time of the arrest). The state attempted to justify the arrest by relying on the hot pursuit doctrine, on the threat to public safety, and on the need to preserve evidence of the petitioner's blood alcohol level. The claim of hot pursuit is unconvincing because there was no immediate or continuous pursuit of the petitioner from the scene of a crime. Further, because petitioner had already arrived home and had abandoned his car at the scene of the accident, there was little remaining threat to the public safety. The only potential emergency claimed by the state was the need to ascertain the petitioner's blood alcohol level. Given Wisconsin's expression of the state's interests for first offense for DWI, i.e., classifying it as a non-criminal, civil forfeiture type offense for which no imprisonment was possible, a warrantless home arrest cannot be upheld simply because evidence of the petitioner's blood alcohol level might have dissipated while the police obtained a warrant. One must believe that even the writer of this opinion has heard of the Mothers Against Drunk Driving, for the writer quickly dropped a footnote at this point in the opinion and hastened to add: "Nor do we mean to suggest that the prevention of drunk driving is not properly of major concern to the states."

SDR-22 VOiCEfor the DeferiselSeptember 1984

The court concluded that the supreme court of Wisconsin let stand a warrantless, nighttime entry into the petitioner's home to arrest him for violation of a civil traffic offense. Such an arrest, however, was clearly prohibited by the special protection afforded the individual in his home by the Fourth Amendment. The petitioner's arrest was therefore invalid, the judgment of the Supreme Court of Wisconsin is vacated and the case is remanded for further proceedings not inconsistent with this opinion. The writer then dropped a final footnote which is interesting: "On remand, the state courts may consider whether the petitionerls arrest was justified because the police had validly obtained consent to enter his home." I would have thought that that issue would have previously been addressed by the state or would have been waived by this point in time.

UNITED STATES V. m N , 104 S.Ct. 3405 (19841, Justice White.

SEARCH AND SEIZURE BASED ON SEARCH WARRANT: The Fourth Amendment Exclusionary Rule should be modified so as not to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issue by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.

In August of 1981 a confidential informant of unproven reliability informed an offier of the Burbank Police Dept. that two persons known to him as "Armando" and "Patsyn were selling large quantities of cocaine et. a1 from their residence at 620 Price Drive in Burbank, Cal.; that he had witnesses a sale of methaqualone by "Patsy" at the residence five months previously and had seen a shoe box full of cash at that time. The informant said that both kept only small quantities of drugs at their residence and stored the remainder at another location in Burbank.

Consequently an extensive police investigation commenced. At one point the police observed an automobile belonging to Del Castillo, who had previously been arrested for possession of 50 pounds of marijuana, arrive at the Price Drive residence. Castillo entered and then exited carrying a small paper sack and drove away. A check of Castillo's probation records led the officers to respondent Leon whose telephone number Castillo had listed as his employer's. Leon had been arrested in 1980 on drug charges and a companion had informed the police at that time that Leon was heavily involved in the importation of drugs into this country. Before this investigation had begun, the police had also learned that an informant had told a Glendale police officer that Leon stored a large quantity of methaqualone at his residence at Englandale. The Burbank officers learned that Leon was living at 716 S . Sunset Canyon in Burbank.


I During the investigation numerous people went to and from the Price Drive residence, always leaving with small packages. Based essentially on these observations an extensive application for search warrant was drawn up and a search warrant was issued for the Price Drive residence and Leon's residence at 716 S. Sunset Canyon in Burbank. The searches produced large quanties of drugs at the Sunset Canyon address and a small quantity at the Price Drive residence. Leon and numerous others were charged with conspiracy to possess and distribute cocaine in a variety of substantive counts.

Leon's motion to suppress was granted as there were no facts indicating the basis for the informant's statements concerning Leon's criminal activities nor as to the informant's reliability. The Court of Appeals agreed and refused to recognize a good faith exception. The U.S. Supreme Court declined to consider whether probable cause existed under the "totality of the circumstances" test in as it had not been the question briefed. The government carefully couched its petition as presenting only the question: "Whether the Fourth Amendment Exclusionary Rule should be modified so as not to bar the admission of evidence seized in reasonable, good faith reliance on a search warrant that is subsequently held to be defective."

The court concluded that the marginal or non-existent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion. The court emphasized that the officers' reliance on the magistrate's probable cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable. The court

4 also stated that suppression remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; or where the issuing magistrate wholly abandoned his judicial role; or where no reasonably well trained officer should rely on the warrant (i.e. , an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable); finally, a warrant may be so facially deficient, i.e., in failing to particularize the place to be searched or the things to be seized, that the executing officers cannot reasonably presume it to be valid. The court's opinion stated that the court left untouched the probable cause standard in the various requirements for a valid warrant.

SDR-24 VOICE for the DefenselSeptember 1984

Fourth Amendment

Exclusionary Rule

We commonly hear expressions relating to the "rights" of the majority without any real appreciation that a majority has no rights, nor was it contemplated by our forefathers that it should. Those in power need no rights. This was one of the expressed fears of Alexander Hamilton when the Bill of Rights was being considered. Hamilton's posture was that the Bill of Rights was not only unnecessary but dangerous, for it would contain various exceptions to powers which were not granted in the first instance. Why, he stated, should it be said that the liberty of the press shall not be restrained when no powef (m the proposed Constitution) is given by which restrictions may be imposed. The danger, he said, is this: "It

Emmett Cblvin

by Emmett Colvia

would furnish to men disposed to usurp, a plausible pretense for claiming that power."

The fourth amendment as well as the remainder of the Bill of Rights are anti- government documents andwithout doubt were intended to be so by their framers In a sense, the Bill of Rights, if we breathe life into these instruments-gives this nation a soul-integrity.

What is the nature of the fourth amendment? It reads simply: The right of the people to be secure in their persons, houses, papers and effects, against umea- sonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation, particularly describing the place to be searched and the persons or things to be seized.

It is difficult to read this and understand the words of the "liberal" Justice O'Connor, when she states that the fourth amendment protects no paper of an individual I say "liberal" because she rendered this opinion in a case where she and the remainder of the Justices agreed the Court lacked jurisdiction and thus denied certiorari or review for that reason. Since there was no "case or controversy" that empowers that Court to write, by writing, who violated the most fundamental law relating to the judiciary. To me, this is quite liberal!

In this she merely follows the lead of Chief Justice Burger, who while so critical of others, fmds great difficulty in trying to determine his own competency as a Justice of our highest court, if we are to assumeheis trying. This business of reaching out to decide questions not presented

to the Court is most dangerous. We trust that he search for the proper role of a judge in Mzrbtrry v. Madtson, 1 Cranch 137,177,pointing out that the high Court has a duty to face up to questions of constitutional law only when necessary to the disposition of an actual case or controversy. This has been a cause for contin- ual disagreement by Mr. Justice Stevens. See, US v. Leon, 104 S.Ct. 3430, 3448 (1984). Perhaps if he finds his proper function as a judge, others in the normal majority will follow the constitutional mandate.

As we study this amendment one can readiIy see the source of confusion to the wurts and law enforcement because of the general language contained therein. It refers to three concepts without indicating any connection between them. First, it vrohibits onlv unreasonable searches and this has been a source of judicial controversy through the years. Second, while it implies that all searches and seizures must be accompanied by a valid search warrant there have been grafted so many exceptions on this that many lawful searches do not involve search warrants. Last, the amendment suggests that probable cause must precede the issuance of the search warrant or search. There are, however, numerous exceptions to this. One of the problems in developing a more stable body of law in this areais that the Supreme Court of the United States for many many years had no criminal jurip diction The grandfather case of Boyd v. US, rendered in 1886, while cited in many search and seizure studies, was a civil case involving a forfeiture. We know from our history that the framers of the

September 1984/VOICOfor the Defense 9

amendment were quite muldful of the use burglary tools, and stolen property. funeral. of general warrants and Writs of Assistance The major difficulty in this area is the The danger before us seems well sum- in England and in the oolonies prior to very heavy price that society pays with marized by Mr. Justice Stevens in Leon, the Revolution and they recognized that or without the exclusionarv rule. Avnlv- 104 S.Ct at 3457:

?

an unrestricted power of search and seiz- ing the rule often results in the criminal ure could be used as an instrument for going free because the constable has stiffling the liberty of expression among blundered. On the other hand society's other things. Although perhaps an over- interests under the fourth amendment s&t by the framers, the major problem are arguably not fully protected without is that nowhere in the amendment is the rule. In short, judicial solutions and there suggested a judicial or other remedy remedies to fourth amendment violations in the event the mandate is violated. It do not admit to easy answers. It is impor- appears that it was merely assumed that it tant that we understand the reasons ad- would not be. vanced by the &pp court for existence

Unlike the fifth amendment, which of the exclusionary rule: (1) the deter- has apparent built-in remedies, the fourth rence argument-ifpolice know that illegal amendment in this respect was left to the evidence is inadmissible they will be judiciary, the highest of which eould not deterred from violating the fourth amend- legally speak to the problem for many ment; and (2) the judicial integrity argu- years. Thus, until recently, in terms of ment-courts h u l d not aid police in judicial history, state and federal law en- disregarding the highest law of the land. forcement officials could violate the Con- ~ ~ t h reasons have largely fallen into dis- stitution and inmany instaneescommonly repute with the Burger court in recent did so. It was not until 1914 in Weeks v. years. One of the problems is that the US. that the Supreme Court ruled that rule invites pejury by the police. They evidence so illegally seized was not admw can often avoid the mandate by a mere sible in federal criminal trials. The court shading of testimony. Of course, our noted that if' letter sand privatedocuments society loses when a police officer, sworn can be seized and used in evidence against to uphold the law, lies under oath and a citizen the protection of the fourth thus commits another crime. I'm con- amendment is of no value and might as vinced that there is only a minimal deter- well be stricken from the Constitution. rent value unless officers are much better Between 1914 and 1926, 45' states con- trained. There is the saving grace. What sidered adopting the exclusionary rule the Warren court brought about was an of Weeks. The application of the rule to intensive and expensive training of most the states was first considered by the police officers that, as one of my prose- Supreme Court in 1949 in Wolf V . Cole cutor friends stated, would not have rado andat that time 16 states had already come about but for such decisions. accepted the doctrine. The Wolf Court What is more important to me is the refused to apply it to the states taking the second major reason that is advanced in position that the aggrieved person could Mapp-the judicial integtlty argument, (1) sue the police; (2) look to the internal namely, that the government must obey discipline of the police to curb such prac- its own laws, and the court8 should not tices: and (3) look to local community aid official lawlessness. Even though it opinion that would not stand for oppres- m&t be shown conclusively that the po- sive conduct. Despite the fact that these lice are not deterred, the judicial integrity were not veey viable remedies, the situa- rationale deserves more attention than it tion continued until 1961 and Mapp v. has been given by the Burger court. In Ohio, which extended the federal exclu- relatively recent cases, such as US. v. sionary rule to state criminal trials. Mopp Calandra which held the exclusionary is not controversial because such rple rule does not apply to grand jury proceed- served to free a dangerous offender (pos- ings, the majority opinion omits any dis- session of obscene materials in the home cussion of the judicial integrity argument. hardly qualified as a dangerous offense), I interpreted such an omission as a tell- but because the evidentiary rule served to tale sign that the exclusionary mle may bar the admissibility of often reliable soon be buried by the Supreme Court of tangible evidence-what lawyers call real the United States. In fact, in recent weeks evidence, such as weapons, contraband, it appears that Court is preparing for the

We could, of course, faciIitate the process of administenkg justice to those who violate the criminal laws by ig~~r ing the commands of the fourth amendment-itzdeed, by ignoring the entire Bill of Rights-but it is the vvery purpose of a Bill of Rights to identi& values thut may not be sacrificed to expediency. In a just socieiy those who govern, as well ar those who are governed, must obey the law. It appears to me that the Burger court

has failed to come to grips mth the judicial integrity rationale and is treating this as unimportant. It is unfortunate that our highest judicial officer, so mtical of others, should possess a mental makeup that can ignore the concept of integrity.

The document we speak of represents the soul of a nation-our integrity. It is upon this a nation-a society-matures and this does not happen overnight. In my lifetime I have seen a lynching of a black, in my tender years, while law enforcement stood aside. I have seen blacks relegated to balcony seats in the court- room-unless they happened to be charged with a crime. A hell of a price to pay for a seat on the ground floor. I can practice under any kind of law society gives me. It does not affect me as a lawyer (in fact, it enhances our income). It only affects me because I a m a part of you-society-a society that should want law, particularly ow h i t law complied with. This is our conscience-it is not a matter that can be brushed aside very easily if we are really mature in our civilization. It is a matter of national integrity.

We tan live and survive quite well under the exclusionary rule. I know person- ally law enforcement can comply with the law and still do theujob. I have trained many of them and I have watched my students comply-with the knowledge and patience that is required. They must first accept that they can and will follow the law. Most of the good ones do, and there are many. There will be, as I say, a cost either way, but if we ignore our highest law-I suggest this will cost far more- for we have lost a part of our soul. D

10 VOICEfor the DefensefSeptember 1984

Keeping Track of Witnesses and Evidence Edirorb Note: This form and the one on the following page me rhe thoughtful contribution of Jan Heinphill ofDalIus, Texas Feel free to copy them for your own use

EVIDENCE WORKSHEET-WITNESS

Defenhnt Case No. Ct. Charge

Witness Name Job

Residence Address

-

Res. Tel. Tel.

OTHER CONTACT: Name Tel.

Witness for: State 0 Def.

Expected to testify to

Impeachable? (Priors, pending cases, prior statements, bias, etc.) 0 If so, How

-- -

If a state's witness, can any testimony be excluded andhow. If a def. witness, are there admissibfity problems or is predicate needed?

If a state's witness, can anything beneficial to defendant be proved through witness? If a defendant witness, can anything harmful to defendant be proved k o u g h witness?

-"witness testifies at trial, notes on testiioay: Guilt? Punishment? a Direct

Cross

September 1984/VOICEfor the Defense 11

EVIDENCE WORKSHEET-EXHIBIT

Defendant Case No. Ct. Charge

Exhibit Description

Available th~ough whom and how (Vol., by subpoena, etc )

Exhibit for State Deft.

Can be used to prove

If a state's exhibit, can it be kept out and how? If a def. exhibit, are there admissibility problems or is predicate needed (and what)?

If a state's exhibit can anything beneficial to deft. be proved? - If a def. exhibit, can anything harmful to deft. be proved?

What?

If exhibit offered at trial, make notes on the following:

Offered on Guilt? Punishment? a By State or Defendant?

Through what witness, if any?

Admitted into Evid.? - Exhibit No.

Was objection made to admission of e x h i b j t ? W h a t objections?

12 VOICE for the Defense/September 1984

The court's opinion fails to specify at what point in the direct examination the

Forensic "useful" question transpired. Noting that the trial objection was at

variance with the complaint made in the appeal, the Court nonetheless made the

Science following comment:

There is no reversible error merely because the jury may have been left

News with the impression that the witnesses thought the tmnscription of their own testimony would be help- fur Rejecting the appellant's argument

that the State's question was prejudicial as i t required the appellant to object, the error, if any, according to the court, was harmless.

If you are representing the "cook" in In a case that will, or should, spark an autopsy on the victim; (2) a toxicologist a drug lab see: Frank, R.S., "The Clandes-

increase in MotionsinLiminie, the Corpus (serologist); (3) a fingerprint expert; tine Drug Laboratofy Situation in the Christi Court of Appeals concluded that (4) a f i r e m s expert; and (5) a forensic United States," J o m l of Forensic Sci- a prosecutor's asking each of his five for- chemist. ApparentIy concluding his direct ences, vol. 28, no. 1, Jan., 1983, pp. 18- ensic witnesses "whether the written re- examination, the prosecutor asked each 31. The article details the components of ports of their fmdings would be helpful forensic witness to examine a written various "homemade" drugs. to the i u ~ . " was not error. Rodn'arez v. summan, of the testimonv. Each then State, 66f S.W. 2d 318,320 ex.-~pp- testifiedthe report was accGate. At some Corpus Christi, 1983, no writ history). time during this exchange defense counsel

In this murder prosecution the follow- objected that the reports were hearsay. ing witnesses, representing five forensic The objections were sustained by the trial science disciplines, testified for the state: court and the reports were excluded from (1) the pathologist that performed the evidence.

Rusty:

Congratulations on your appointment as editor of VOICE for the Defense. I'm looking forward to reading this fine publication under your able leadership as I have the past several years under your predecessors, Clifton HoImes and Stanley Weinberg. The judges of Texas greatly appreciate being included on the mailing list for this infornative publication.

Sincerely, HARRY HOPKlNS Judge, The Forty-Third Jud~cial District Court Weatherford, Texas

Gentlemen:

Our office is currently doing research on Article 42.12 Section (k) Code of Criminal Procedure, which allows Court to set as a condition of probation repay- ment of appointed attorney's fees. We are interested to know if anyone in the State of Texas has either successfully or unsuc- cessfully challenged this statute in Federal Courts as not complying with the requirements set down in Fuller v. Oregon. 1 have been unable to fmd any federal decision as to this statute and felt that if anyone has previously challenged it in Federal Court you would know about it.

Thank you very much for your assistance in the matter.

Very truly yours, SYBIL K. COLSON East Texas Legal Services, Inc. 41 First Street, NW Paris, Texas 754600795 (214) 785-871 1

FORENSIC INVESTIGATIONS

Providing complete support to attor- nevs in all asoects of scientific and investigative matters in criminal and civil litigation. Areas include private crime lab, investigations, testimony, fuearns, arsons, accident recon- struction, DWI defense, process ser- m e , case review and consultation.

Forensic Associates/ Investigative Associates, Inc.

11 08 Main, Lubbock, Texas 79401 8061763-9487

ASSISTANT FEDERAL PUBLIC DEFENDER for the Western District of Texas, position in San Antonio. See 18 U.S.C. 53006A. Must be bi- lingual (in Spanish), and be licensed for at least one year. Federal criminal tlial experience preferred. R e sum6 or Standard Form 171 to Lucien B. Campbell, Federal Pub- lic Defender, 727 E. Durango Blvd., B-138, San Antonio, Texas 78206.

September 19841 VOICEfor the Defense 13

Hearsay

by Walter Boyd and Allen C. Isbell

Lots of action at the Advanced Crim- inal Law Course in San Antonio August 6-10 . . . Jack Srrickland, when talking about the "you don't pay me enough to convict an innocent man" type of prosecutorial argument, remarked that Joe Drago, Chief of Misdemeanors in Tarrant County, has refmed this argument to a "you won't pay me enough . . . " Poor Drago in a cast on hi right arm was unable to fight back . . . . The seminar proved our association has its share of humorists, including Doug Tinker, Rusry Duncan and Tim Evans.

After his speechJerry Firzgerald was surrounded by fans-they appeared pretty young-looked like his kids . . . . Rusfy Duncan spoke on insanity-had a great slide show (slides by Denton Graphic Artist Beth Allen) which dealt largely with a fellow who always had his tongue hanging out after chopping up a human being or two with an axe . . . . Then there was Tim Evans, next year's Director of the Advanced Course to be

Jen Hemphill, Larry Warner, and about 13 others went to the Cadillac Bar on Tuesday night, only to be confronted with a bill for $354-gratuity was added in because the Cadillac management was very skeptical of this group paying a tip- Further, our informant sayeth not . . . Eulogio Colon, who says he is just about ready to join TCDLA (and may have already done so) enjoyed the Latin music at the El Tropicano-he is an Abilene lawyer who bicycles five miles to work every day and sometimes to the court- house . . . . Bill Habern, one of the speakers, is opening an office right outside Houston in Sugarland-he says that he wants to avoid the Houston nunch- he's the expert on Sentencing andparole and all that sort of stuff. . . .

Speaking of misplaced priorities Larry Frirh skipped the Harris County Criminal Lawyers Annual softball game to attend the seminar . . . . If you want to seize a ship, call Larry-he has traveled all over the world in his ventures into this field

held in Fort Worthhe told every joke ' there is about Double Jeopardy . . . . Tom Sharpe, Director, added cases and comments after almost every lecture- Sharpe worked very hard on presenting this year's program. . . .All speakers did well.. . .

Extracurricular activities abounded- our most unreliable source says that

of law-now has settled into criminal law-Sometimes he combines his two interests-when he seizes a ship he fmds a client or two hid out . . . . Talking about ships, how about Doug Tinker and Gerry Goldstein coming in 4th place in the sailboat race from Galveston to Vera Cruz-they were somewhat slower in getting back . . . . Thk reporter missed

14 VOICE for the Defense/September 1984

Goldstein's speech-they say he thinks and talks as fast as he sails . . . .

Then there was a certain BilI Vance who has a TCDLA membership application, who has represented the imaginative Judge W.T. McDomld, Jr. of Aggieland in his five or so tiffs with the Court of Criminal Appeals-No, no, it's not true that BIZ has gone into the clothing business to sell mandamus suits to certain College Station residents . . . . Robert Pelton, the gentleman's gentleman and President-Elect of the Harris County Criminal Lawyers Association was attend- ing the nice margarita party hosted by Judge Chuck Miller (Court of Crlminal Appeals) and Judge Ron Chapman (Dallas) when he remarked how strikingly beautiful a certain young lady was across the room . . . . JudgeMiller indeed agreed that his wife Kate is very beautiful . . . . Robert claims he knew that all the time . . . . . It'snice for judges to host receptms for defense lawyers-it keeps them in touch with the common folks . . . .Judge Don Leonard (Ft. Worth) worked as this reporter's helper in the General Land Office almost 25 years ago-you've come a long way, Judge, especially when com- pared with this reporter (W.B.)Judge Leonard related thestory of a defendant who testified on a Jackson v. Denno hearmg that he could neither read nor write and therefore could not have understood or appreciated what he had done when he signed the confession. The Defendant was then asked to point out which part of the confession was inaccurate-and he proceeded to do so by reading certain portions of the confession-the confession was found t o b e d i d ...

At an Executive Meeting of TCDLA somewhere near Caddo Lake, Richard Anderson, Ed MaIlert, Jan Hemphill. Scrappy Holmes, Charles Caperton and Rlrsty Duncan observed Tim Evans attempt to play some sort of musical instrument in some sort of establishment- Finally Rita (his wife), a crime analyst with the Fort Worth Police Department, had to drag him away . . . . Several years ago, Tim and Mary Heffner promoted a mud wrestling event between this reporter (W.B.) and the East Texas Women's champion, fortunateIy, the $105 raised by Tim and Mary was not enough to

outb~d some Sam Houston students who paid$120for the opportunity tofight.. . .

Terry Board, a prosecutor in Judge Tom Thorpe's court in Dallas, has for the second year in a row coached the winning moot court high school team in the statewide Dallas Bar Association contest . . . .Tommy SheffieIdfrom Cooper's Cove has been a great rodeo clown-came out of Judge Mike McCormickS chute as a lawyer . . . . Harris County D.A. Johnny Holmes and Democratic chal- lenger David Jones debated at the Harris County Criminal Lawyers August Lunch- eon . . . . WiUiam Crozy Horse Coppolu, a famous Ellis Unit inmate, has just published his new book called Paradox, a Psychic J o m e y . . .. . Walter Boyd's melodrama was performed before the inmates at the Central Penitentiary Unit in Sugarland. The inmates vigorously booed the prosecutor in the play . . . . One line which really gotjeers and cheers was when the defendant in the play responded to the judge's request that he talk to his lawyer before deciding to testify, the defendant replied "He's never talked to me; why should 1 talk to h?". . .

Grant Hardeway had a Pre-Birthday Party for Judge Lupe Sulinas . . .Judge Wilfiom Haften led the Harris County District Courts in cases disposed of during May. The Judge reports to us in h s usual forthright manner that he was absent during the better part of this month, causing a tremendous number of probation pleas to be set. Judge Hatten does not know how to clear his docket . . . . Saw Chief Justice Ewns (1st Court of Appeals) at a wedding in Galveston at the new San Luis Resort Hotel . . . . Galveston is a great place, as many are discovering . . . .Justice E m s and Judge Jim Wallace (Supreme Court) will play in a celebrity racquetball tournament in Houston-Result of match next month . . . . Judge Charles Hearn spent August in Europe doing his patriotic duty . . . . His Air Force Reserve Unit received national recognition and was being "shown off ' in Europe . . . .

Yours truly (A.C.I.) sat "shotgun'" with Waggoner Carr in an Austin hearing . . . . the former attorney general is not only an outstanding lawyer but a con- summate gentleman and a pleasure to work with . . . . Robert Huttask suffered

a heart attack near Houston about six weeks ago . . . . recuperating at home . . . His wife, Hully Humash, is a hearing examiner for T.A.B.C. . . . Did you know that Claire Connors, an assistant D.A. in Hams County, is Joe Connors' sister? . . . Joe lectures at seminars around the state, and practices in McAUen.. . .

Churlotte Harris (Houston) won a no- bill for a client by proving a "defense of incapacity" at the G.J. level . . . . Jack Zimmerman gets V.I.P. treatment in Walker County . . . . Represented the "high sheriff" in federal court and got an acquittal . . . Jack has been elected Chairman of the Crimmal Zaw Section of Association of Trial Lawyers of America.

The very helpful Criminal Tnol Manual has six of our members as contributing editors: John E. Ackerman (Houston), Clifford Brown (Lubbock), Joseph A. Connors ILI (McAUen), Tim Evans (Fort Worth), Keny P. Fitzgerold (Dallas), and Charles L. Rittenberry (Amariuo).

Let us know what is happenmg in your area. Write to us at 202 Travis, Suite 208, Houston, Texas 77002, or call 7131236-1000.. . .

BOB JONES TO THE "DEFENSE

ONCE AGAIN!

, You can't miss us! Since the Association and the Project's

move-in on June 8. 1984. we have now out the final touch on the property. Joe luna of Pharr, 'l'cxas (a friend of Bob's) ..' i. designed and painted thc sign located at 600 West 13th Strcet . . . at NO COST to the Associatio~~.

Ihc entire memhcrstiip as wcll as the TC1)I.A staff, would like to express our great apprcciarion and thanks for all thc I assistance and ad& Jones" has given us. 1 I

September 1984/VOIcE for the Defense 15

2721 S. 10th Street, McAllen Reaistration 8 3 0 - 9:00

Program 9:0i - 12:OO; 1:00 - 5:00

AN IN-DEPTH SEMINAR ON THE NEW TEXAS DWI LAW

THE AGENDA: An ove~iew of recent legislative changes; pretrial motions practices; scientific bases for challenging intoxilyzer ev~dence; countering prosecution tactics; detoxing the intoxilyzer-cross-examining the stated expert

?* witnesses; motions and objections-view toward appeals; charging instruments; the punishment hearing and sentencing alternatives; trial tactics and jury persuasion.

THE FACULTY: Speakers and instructors to include well-known criminal law practitioners such as: Charles Tessmer, Dallas; Gerald Goldstein. San Antonio; Bob Gibbins, Austin; Ed Gray, Dallas; Ray Bass, Houston; Kerry P. Fitz- Gerald, Dallas; Hon. J. Q. Warnick, Jr., Lubbock; Charles Butts, San Antonio; Randy Taylor, Dallas; Dr. Ken Smith, Houston; Paul W. Leech, Grand Prairie; Carroll S. Weaver, Houston; Louis Dugas, Orange; J. Galy Triehter, Houston.

REGISTRATION DEADLINE: September 21,1984 . , , & :&$

REGISTRATION FEE:

%. , . .. ... Preregistration: $75.00 (for those whose fee arrives adbefore September 21)

. -."Y Regular Registration: $9Q00 (for those whose fee arrives on or after Septebmer 22, 1984, including regis-

' - 1 _ .;. :.." tering at the door. . .

::by-.. Why preregister? (1) Discounted price; (2) You are assured of receiving printed materials at beginning of i ,r -.. .:

seminar. For later registrations, printed materials will be distributed on first come/first

& n ., *x served basis. However, if materials are not available for all during seminar, they will be

. - . mailed to you within two weeks after the seminar.

TO: Texas Criminal Defense Lawyers Association 600 W. 13th Street Austin, TX 78701

Be sum to include your $75registrafion fee

Name Address

Phone No. Current occupation

Preregistration fee must be received onbefore September 21, 1984. Fee is $90 on or after September 22, 1984.

Documents

CRIMINAL - Voice for the Defense Online€¦ · CRIMINAL DEFENSE LAWYERS PROJECT COURSES AND PUBLICATIONS its mud series of ofourses and publicahs* the Criminal Defehse Lawye16 Projeot