The Legal Advocate

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All posts by Alli Keefe

Training the Lawyer to Represent the Whole Family – NITA Public Service Program

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NITA had the wonderful opportunity to partner once again with Hofstra University Law Clinic for a public service program, “Training the Lawyer to Represent the Whole Family.” This program took place June 4 – 8 and was offered at a highly reduced rate to attorneys who work primarily in the areas of child protection, custody, or juvenile justice. The program was led by NITA Program Director Theo Liebmann for the 11th year in a row.

As the program director, Theo stated, “One of the best parts of this program is being a part of such an inspiring group of practitioners. Both the faculty and the participants do more than improve crucial skills – including trial techniques and child interviewing – they remind each other of how vital family advocacy work is, and how it deserves to be approached with at least as much intensity, passion and diligence as any other field of law.”

Furthermore, the program aimed to develop the skills necessary to be competent and skillful attorneys for families and children involved in these proceedings. Participants worked with a faculty made up of nationally recognized experts in family and children’s legal issues while covering topics such as: opening statements, closing arguments, direct and cross examinations of fact, expert and child witnesses, impeachment, interviewing skills, and much more!

At the conclusion of the training, one participant stated, “NITA was a wonderful training, I feel like it helped remind me of the fundamentals and I emerged a more confident litigator.”

Likewise, another participant stated, “By far this has been the best CLE program I have taken in my six years of practice. I am confident that my litigation skills have improved as a result of the 5 days I spent in the program, and I believe my clients will be better represented in court as a result.”

NITA continues to be grateful for our ongoing partnership with Hofstra University Law Clinic and for the opportunity to continue training family law advocates.

Carpenter v. United States (2018)

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Written by NITA guest blogger Brent Newton

On June 22, 2018, the Supreme Court, by a vote of 5-4, issued its much-anticipated decision in Carpenter v. United States.  Carpenter was convicted of multiple robberies based in part on evidence that, at the time of four of the robberies, his cell phone had sent signals to numerous cell towers located near the places where the robberies occurred.  Law enforcement officers had obtained over 100 days of cell-tower records from Carpenter’s two wireless carriers without first securing a search warrant based on probable cause.  The Supreme Court reversed Carpenter’s convictions.  It held law enforcement officers’ access to seven days or more of historical cell-tower records from a wireless carrier constitutes a “search” under the Fourth Amendment in that a cell phone account holder has a “legitimate expectation of privacy in the record of his physical movements.”  Because a Fourth Amendment search ordinarily requires a search warrant based on probable cause, the Court held that the officers obtained Carpenter’s cell-tower records in an unconstitutional manner.

Chief Justice Roberts wrote the majority opinion and was joined by Justices Ginsburg, Breyer, Kagan, and Sotomayor.  Four justices – Kennedy, Thomas, Alito, and Gorsuch – each dissented in separate opinions.

The majority opinion relied in significant part on the two concurring opinions in the Court’s 2012 decision in United States v. Jones.  The majority in Jones held that the warrantless placement of a GPS tracking device on a defendant’s car, which was thereafter monitored 24/7 for over a month, was a “search” under the Fourth Amendment.  The majority in Jones relied on the defendant’s property interest in the car rather than his privacy interest related to having his car’s movements tracked by the GPS device.  Conversely, the two concurring opinions in Jones focused instead on the Jones’s privacy interest in not having his every movement tracked for over a month. 

The majority opinion in Carpenter relied on the concurring opinions in Jones for the proposition that a person has “reasonable expectation of privacy in the whole of their physical movements” over an extended period of time.  Officers’ access to historical cell-tower records violates that reasonable expectation of privacy because it is a “sweeping mode of surveillance” that allows officers to engage in “near perfect surveillance, as if [they] had attached an ankle monitor to the phone’s user.”  Such an “all-encompassing record of the [phone’s user’s] whereabouts” thus is a “search” under the Fourth Amendment, requiring a warrant based on probable cause.

The Court did not hold that law enforcement officers need to obtain a warrant when they access short-term cell-location evidence (i.e., less than seven days’ worth of records).  “[W]e need not decide whether there is a limited period for which the Government may obtain an individual’s historical [cell-tower records] free from Fourth Amendment scrutiny, and if so, how long that period might be.  It is sufficient for our purposes today to hold that accessing seven days of [cell-tower records] constitutes a Fourth Amendment search.”   The majority also did not address whether “real-time” cell-tower monitoring of a suspect’s phone constitutes a “search.”  Those situations will likely be addressed in future cases.

Finally, the Court was clear that it was not overruling its prior cases holding that a person has no Fourth Amendment privacy interest in normal “third-party” business records (such as bank transactions or ordinary phone records).  The Court stated that “there is a world of difference between the limited types of personal information [in such third-party records] and the exhaustive chronicle of location information casually collected by wireless carriers today [in cell-tower records].”

Carpenter is a landmark Fourth Amendment decision.  It requires that law enforcement officers obtain a search warrant based on probable cause before they can access a suspect’s historical cell-tower records of a duration of seven days or more.  Based on its adoption of the reasoning of the two concurring opinions in Jones as the holding of the Court, the majority opinion in Carpenter also has broader implications for officers’ long-term GPS monitoring of suspects’ movements.  Any such monitoring of seven days or more also now requires a search warrant even if officers did not place a GPS device on the suspect’s person or property.

 

 

U.S. Supreme Court Will Not Hear Brendan Dassey Appeal

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Statement by Brendan Dassey’s attorney Laura Nirider from Northwestern Pritzker School of Law’s Center on Wrongful Convictions of Youth:

“We will continue to fight to free Brendan Dassey. Brendan was a sixteen-year old with intellectual and social disabilities when he confessed to a crime he did not commit. The video of Brendan’s interrogation shows a confused boy who was manipulated by experienced police officers into accepting their story of how the murder of Teresa Halbach happened.  These officers repeatedly assured him that everything would be ‘okay’ if he just told them what they wanted to hear and then fed him facts so that Brendan’s ‘confession’ fit their theory of the crime.  By the end of the interrogation, Brendan was so confused that he actually thought he was going to return to school after confessing to murder.  Nonetheless, he was convicted and sentenced to life in prison on the basis of this ‘confession.’

Unfortunately, Brendan isn’t alone. Over the past twenty years, extensive empirical and psychological research has shown that children under 18 are between three and four times more likely to falsely confess than adults – and yet the criminal justice system fails many of them.  It’s up to the courts to put an end to this.  Now, more than ever, courts around the country must update their understandings of coercion in light of the newly understood problem of false confessions.  The Center on Wrongful Convictions of Youth is dedicated to continuing this effort, along with our justice-minded partners in both law enforcement and defense-oriented communities across the globe.

We would like to extend sincere gratitude to the dozens of former prosecutors, national law enforcement trainers, leading psychological experts, innocence projects, juvenile justice organizations, and law professors who filed amicus briefs in this case and who, along with our legal team, will continue to fight for Brendan and the many other children who have been wrongfully convicted due to the use of coercive interrogation tactics.”

-Laura Nirider, attorney for Brendan Dassey

-June 25, 2018

To Read NBC’s article, Netflix ‘Making a Murderer’ case won’t be heard by Supreme Court, click here.

Dassey v. Dittman Case Background

Sixteen-year-old Brendan Dassey was a high school sophomore enrolled in special education classes when he falsely confessed to helping his uncle kill a young Wisconsin woman. Brendan had a verbal IQ score of 65 and a general intellectual ability score in the seventh percentile of students his age.  His learning disabilities left him unable to spell words like “rack” or “agent” and caused him to be more vulnerable to suggestion than 95% of the population.  He had never been in trouble with the law, preferring to spend his afternoons and weekends at home playing Pokémon video games. No evidence linked Brendan to the crimes for which he was convicted other than his false confession.  Nevertheless, he was convicted and sentenced to life in prison at age sixteen – an injustice that outraged millions of viewers of Netflix’s “Making a Murderer” around the globe.

Despite his impairments, Brendan was interrogated four times over 48 hours, all of which occurred without an attorney and three of the four without a parent present. When he ultimately “confessed,” Brendan was unable to describe basic facts about the crime – including how the victim was killed – until police told him what their investigation had revealed and assured him that he would be “set free” if he only confirmed what they said.  Consistent with his diagnosed susceptibility to suggestion, Brendan did what the interrogators requested: He agreed with their statements, thereby confessing to serious crimes.

Brendan’s case raises fundamental legal questions that are long overdue for answers.  The U.S. Supreme Court has not accepted a juvenile confession case of this type in more than forty years.  But during those same decades, the development of DNA technology has proven hundreds of confessions to be false – including a disproportionate number of confessions from impaired juveniles like Brendan.  Now, more than ever, it is vital for the Supreme Court to insist that lower courts strictly enforce longstanding constitutional principles that are supposed to protect children in the interrogation room – but that are too often minimized or ignored.

From the panel decision of the United States Court of Appeals for the Seventh Circuit: “Detectives continually challenged Dassey’s statements and accused him of lying until…his confession became a litany of inconsistencies—shirts that changed color, fires that began and ended at different times, garbage bags that sat in burning fires without melting, trucks that were seen in garages and then not seen in garages, bloody crime scenes without a trace of blood remaining, metal handcuffs that left no marks on the bed posts, etc.”

Other interrogation tactics used on Brendan Dassey included the detectives’ statement that “I’m a cop but I’m not right now. I’m a father” who wanted “nothing…more than to come over and give you a hug.”  Brendan was also promised that although he might fear “get[ting] arrested,” he would be “all right” and would not “have to worry,” even if the case “goes to trial,” as long as he “filled in” the blanks with “statements…against your own interest” that “might make you look a little bad or…like you were more involved than you wanna be looked at.”

Viewers of Making a Murderer will recall that, after “confessing” to murder, Brendan asked police if he would be returned to school before sixth hour because he had a project that he wanted to complete.  After being placed under arrest, moreover, Brendan asked: “Is it only for one day?”  He later told his mother that his interrogators had “got to my head” and testified at trial that he had understood the officers to promise that ‘no matter what’ he said, ‘I wouldn’t be taken away from my family and put in jail.’”  No other evidence supported his guilt besides the confession.

The Petition for Certiorari points out that there have been many other cases like Brendan’s that have gone unrectified for too long. “Data from the National Registry of Exonerations shows that children and adolescents are almost four times as likely as adults to confess to crimes they did not commit. … Indeed, though juveniles account for less than ten percent of all exonerations tracked by the Registry, they comprise almost thirty percent of the exonerees who falsely confessed…The evidence of false confessions by individuals with intellectual disability is more overwhelming still. Among exonerations tracked by the National Registry of Exonerations, a full seventy percent of exonerees with mental illness or intellectual disability falsely confessed. National Registry of Exonerations, Age and Mental Status of Exonerated Defendants Who Confessed, supra. This is tenfold the false confession rate among adult exonerees without such disabilities.”

Juveniles’ vulnerability in the interrogation room stems from well-understood principles of adolescent brain development that were embraced by the U.S. Supreme Court in cases like Roper v. Simmons, in which the Court banned the execution of children under the age of eighteen.  There, Justice Kennedy wrote for the majority that juveniles “are more … susceptible to … outside pressures.”  This “common sense” principle was extended to the Miranda context for juveniles in 2011’s J.D.B. v. North Carolina – where the Court concluded that juveniles are particularly likely to falsely confess.

But while the confirming science is new, the underlying “common sense” principle has been long understood.  Indeed, the U.S. Supreme Court has for decades insisted that courts evaluating juveniles’ confessions must use “special care” and must consider that it is easier to coerce a child than an adult — even unintentionally.  These principles date back to Supreme Court cases like Haley v. Ohio (1948), Gallegos v. Colorado (1962), and In re Gault (1967).  But unfortunately, state courts often disregard these principles, admitting kids’ confessions without any special care whatsoever – even in cases where the confessions were later proven false.  This is precisely what happened in the case of Brendan Dassey.

As the Petition for Certiorari explains, “The Wisconsin Court of Appeals’ departure from this Court’s precedent is no isolated incident. Since this Court decided Gallegos, Gault, and Fare, lower courts have often failed to follow those decisions. The consequences of those failures have been illustrated not only by research (discussed above) demonstrating how vulnerable juveniles and intellectually disabled persons are to police interrogation tactics, but also by data on wrongful convictions resulting from false confessions. Certiorari is warranted here not only to reaffirm this Court’s holdings (and lower courts’ obligation to follow them), but also to provide guidance on how to apply those holdings so as to minimize false confessions—which not only lead to innocent people being jailed but also leave the perpetrators free to victimize others.”

In 2016, a Wisconsin federal court overturned Brendan’s conviction, finding that his confession had been unconstitutionally coerced. That ruling was upheld on appeal by a panel of judges from the United States Court of Appeals for the Seventh Circuit, but the full Court of Appeals reheard the case and narrowly reversed the lower court’s decision to grant a new trial by a 4-3 vote. In dissent, three judges – including Chief Judge Diane Wood – called the reversal a “travesty of justice.”

Brendan’s case is a particularly good vehicle for the Court to provide guidance on the interrogation of children and intellectually challenged individuals, because his entire interrogation was videotaped.

Please see these clips here that illustrate the unreliability of the confession described above.

One noteworthy excerpt from the interrogation video shows Brendan Dassey guessing several different ways in which one might be murdered, none of which actually occurred in this case.  At one point, police – who knew that the physical evidence proved the victim had been shot in the head – tried to help him find the right answer by suggesting, “Come on, Brendan. Something with the head” – to which Brendan responded by saying that the victim had had her hair cut.  Finally, the frustrated officers gave away the right answer: “I’m just going to come out and ask you. Who shot her in the head?”  Brendan agreed that his uncle had done that – and, when asked why he hadn’t mentioned that before, replied: “Cuz I couldn’t think of it.”

The case has drawn several strong amicus briefs asking the Supreme Court to review this case from:

(1) The nation’s leading mental health authorities (the American Psychological Association, American Psychiatric Association, and related professional organizations).

(2) A large group of respected and, in many cases, high-ranking current and former prosecutors.

(3) The nation’s second-largest company that trains police how to interrogate juveniles. The company uses the Brendan Dassey case as an example in training of how not to interrogate juveniles.

(4) The Innocence Network (an amalgamation of the Innocence Projects around the country) and fifteen individuals who falsely confessed to murder as teens, were wrongly convicted, and spent years in prison before being exonerated.

(5) A dozen of the nation’s leading juvenile law experts, including the Juvenile Law Center.

(6) A group of the country’s most renowned criminal law professors.

Southern University Law Center – A NITA Public Service Program

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NITA Faculty (from left to right): Anita Royal, Arvind Wiswanathan, Judge Michael Washington, Angela Porter, Lauren Reeder, and Jude Bourque

On May 21 – 24, NITA continued our partnership with Southern University Law Center (SULC) in Baton Rouge, LA, by putting together a trial skills training public service program for over 30 attorneys. NITA Program Director Jude Bourque led the training which was met with high praises from the participants. The 4-day training aimed to improve trial skills for both new attorneys, and refine those skills for attorneys who have been in practice for several years. Some of the skills taught included: direct/cross examination, exhibits and laying foundations, opening statements and closing arguments.

Jude also worked with Director of Clinical Legal Education at SULC, Virginia Listach, to put together a schedule that would suit the needs of the participants. Virginia stated, “This is the 3rd year Southern University Law Center has hosted the NITA trial skills training for law students and public service attorneys. The skills training and NITA instructors were again outstanding lending themselves as a tremendous source of information, innovative skill techniques and positive motivators. Our participants expressed an overwhelming sense of accomplishment and satisfaction in the skills training they received.”

At the conclusion of the training, one attendee stated, “This training was remarkable. As you know I have little trial experience but I feel like I could handle a short trial right now. I was exposed to direct examinations, re-direct, cross examinations, as well as impeaching a witness. This training was by far the best one I have attended in my short career. The instructors were great, realistic, and very non-threatening. I highly recommend this training for first year attorneys.”

Likewise, another attendee stated, “The NITA training was an excellent refresher and enhancement to my trial skills. As far as assisting legal aid clients, it will help because the training gave me new and different perspectives on trying a civil case… many thanks to everyone who made this training experience possible.”

NITA is grateful to have had the chance to continue working with SULC for the third year in a row on a public service program as we continue in our journey to providing access to justice for all attorneys.

 

Monthly Theme: Hearsay Part Two

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Direct, Hearsay, and [Proper] Bolstering

Written by NITA guest blogger Professor Jules Epstein

It is a fundamental tenet that a witness has to present a ‘fresh’ version of her story, and may not be asked or permitted to say “well, here is what I told my friends.”   It is not what the jury came to hear; and if coupled with an in-court version is condemned as “improper bolstering [, which] occurs when an out-of-court statement is offered solely to duplicate or corroborate trial testimony.”  State v. Campbell, 254 S.W.3d 203, 205 (Mo. Ct. App. 2008).

But this statement of law is actually incorrect.  Many out-of-court statements may be used to duplicate trial testimony – as long as they have independent hearsay admissibility.

Let’s start with Rule 803, which permits the hearsay of anyone.  And “anyone” includes the testifying witness.  That is apparent from the definition:  “’Hearsay’ means a statement that…the declarant does not make while testifying at the current trial or hearing; and a party offers in evidence.” Fed.R.Evid. 803.  Nowhere does the Rule say, or even imply, that the declarant and the testifying witness must be different people.  But see Brisbon v. United States, 894 A.2d 1121, 1128 (D.C. 2006)(questioning whether a criminal defendant may testify to his own alleged excited utterance).

A witness repeating her own hearsay is not atypical.  A rape complainant may testify to the assault and then read the jury her excited utterance text message that also details the crime.  See, e.g., State v. Young, 2016-Ohio-7477 (Ct. App.).  The same is true with a present sense impression, a statement made for medical diagnosis and treatment, or a contemporaneous entry into the declarant’s own business record.

What is the power of this?  Repetition, which breeds believability.  Consider this example:

Q:      Where were you when the accident occurred?

A:        Right on the corner.

Q:     And what did you see?

A:     This big car, it was red, ran the light, hit the child and drove off.

Q:     Where you able to see the license plate?

A:      Yes, it was XDS123

Q:      What’s the first thing you did?

A:      I had my phone open, as I was about to text my mom, so I typed down the license.

Q:        Please read and show us what you typed.

A:     XDS123

Q:        What’s the very next thing you did?

A:      I was blown away, I dialed 911 and screamed what happened?

Q:      I am going to play a tape [911 call].  “Oh my god, hit and run, red car, XDS123.”  Was that your voice?

A:        Yes.

Q:     And is that what happened?

A:        Yes.

This repetition of out-of-court assertions may also occur if the statement is admissible under the 807 ‘catch-all’ residual hearsay exception.

There is a second way prior statements are admissible on direct examination – when they are consistent with the witness’ live testimony and rebut a claim of recent fabrication or corrupt motive made in the opposing party’s opening statement.  The proponent of the witness need not defer the use of a prior consistent statement until after cross-examination – the ‘impeachment’ has already occurred.  See, e.g., State v. Campbell, 254 S.W.3d 203, 205 (Mo. Ct. App. 2008)(attack in opening statement allows use of prior consistent statement under 801(d)(1)(B)).

There is little an opponent can do.  The independent admissibility of each hearsay statement warrants its use, precluding a bolstering objection.  All that remain are objections under Rules 403 and 611 that the repetition is cumulative and unnecessary, but given the presumed reliability of each hearsay exception, these arguments will be difficult to make until much damage is done.

[Professor Jules Epstein is the Director of Advocacy Programs at Temple Beasley School of Law in Philadelphia, PA.]

 

 

 

 

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system.

NITA’s Goals are to:

  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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