Can the defense question a State’s witness about pending charges? May the State question the defendant or defense witnesses on their pending charges? The Rules of Evidence allow impeachment by conviction of a crime under Rule 609, but nothing in the rules speaks to impeachment by evidence of pending charges specifically. The question comes up frequently enough that I wanted to write about it. Read on for the answer.
Evidence
State v. Thompson Tells a Tale of Two Facebook Screenshots
After Roshawn Thompson picked up his cousin Kendall Rascoe from the Greenville mall in November 2014, Thompson and a friend, Andre Grey, robbed Rascoe at gunpoint. At Thompson’s armed robbery trial, his defense attorney sought to cross examine Rascoe about Facebook messages he sent to Thompson earlier in the day asking whether Thompson could get some marijuana for him while he was in Greenville. Rascoe denied sending the message and testified that he just happened to run into Thompson at the mall. The State objected to the admission of the screenshot of the messages.
Later in the trial, the State sought to introduce a screenshot of a picture of Thompson and Grey copied from Thompson’s Facebook page. Rascoe showed the investigating detective the picture for purposes of identifying Thompson and Grey. Thompson objected to the admission of the screenshot, in which both of his middle fingers were extended.
How did the trial court rule? Did it make the right call?
Serial, Cell Site Location Information, and Experts . . . on a Wednesday
It’s not Thursday, but I’m going to throw it back a few years to 2014. Like the rest of the nerds I know, I became obsessed that year with the podcast Serial. The first season of that podcast chronicled the prosecution of Adnan Syed for the 1999 murder of his ex-girlfriend, Hae Min Lee. Host Sarah Koenig meticulously sifted through the evidence and conducted goodness-knows-how-many interviews with everyone connected to the case, including numerous recorded interviews with Syed, who is serving a life sentence in a Maryland prison. Syed claims that he did not kill Lee, whose body was discovered six weeks after she disappeared buried in a Baltimore park. Koenig spends the first several episodes of the podcast describing inconsistencies in witness’s accounts of the day Lee disappeared—inconsistencies that raise doubts about Syed’s guilt. But in episode five, Koenig, with the help of her producer, analyzes the evidence that the State offered regarding which cell towers serviced calls to Syed’s phone during the time that one of Syed’s friends claimed Syed was burying Lee’s body. The producer concludes:
“I think they were probably in [the park] . . . Because . . . the amount of luck that you would have to have to make up a story like that and then have the cell phone records corroborate those key points, I just don’t think that that’s possible.”
To 404(b) or Not to 404(b)
My ten-year-old daughter asked me a few weeks ago what O.J. Simpson had done. Like the rest of America, she heard news of his parole hearing. What she couldn’t figure out is why people were so interested in when he would be released from jail. I told her about the hotel room and the sports memorabilia. And then I told her about the murders of Nicole Brown Simpson and Ron Goldman. (Don’t judge me: She has older brothers and she has watched so many episodes of Criminal Minds that the damage is already done.) I told her that a great many people thought O.J. had gotten away with murder; that’s why some thought he should stay in jail. With O.J., as with nearly everyone tried in the court of public opinion, allegations of other bad behavior shape the public’s perception of the person’s current predicament.
Counties May Impose Civil Penalties for Passing a Stopped School Bus
Four years ago, the General Assembly increased the criminal fine for passing a stopped school bus and enacted new license revocation and registration hold provisions. During the previous year—2012—there had been more than 1,300 misdemeanor charges for passing a stopped school bus and three felony charges, two for unlawfully passing a stopped school bus and striking a person and one for doing so and causing death. Not much has changed. In 2016, there were 1,400 misdemeanor charges for passing a stopped school bus and three felony charges for doing so and striking a person. This year, the General Assembly took a different tack. S.L. 2017-188 (S 55) authorizes counties to adopt ordinances that enforce the provisions of G.S. 20-217 by means of automated school bus safety cameras and impose civil penalties for violations.
State v. Younts: Rule 702 Does Not Require Proof that HGN Testing is Reliable
Folks, we have an answer. The court of appeals held yesterday in State v. Younts, ___ N.C. App. ___ (2017), that a law enforcement officer trained to administer a Horizontal Gaze Nystagmus (HGN) test may properly testify about the results of a test he administered without any determination by the trial court that HGN testing is scientifically reliable.
Summer Confrontation Clause Cases
This past June saw a flurry of Confrontation Clause cases from the appellate division: State v. Miller, ___ N.C. App. ___ (June 20, 2017), temp. stay allowed, ___ N.C. ___ (July 3, 2017); State v. McKiver, ___ N.C. ___ (June 9, 2017); and State v. Clonts, ___ N.C. App. ___ (June 20, 2017), temp. stay allowed, ___ N.C. ___ (July 9, 2017) (a sprawling 84 page opinion including the dissent). These make for some great summer reading, at least to me. Because the cases touch on various aspects of Confrontation Clause law (and just in case your summer reading interests vary from mine), I wanted to briefly summarize them.
Bill Cosby and the Lack of Rule 404(b) Evidence
Over the weekend, the judge presiding over Bill Cosby’s sexual assault trial declared a mistrial after the jury was unable to reach a unanimous verdict. I hadn’t followed the case very closely and my knee-jerk reaction was, “wait, fifty women have accused this guy of sexual assault and he didn’t get convicted?” As I thought more about it, I began to wonder how many accusers — other than Andrea Constand, the alleged victim in the case — were allowed to testify against Cosby. It turns out that it was only one.
Must a Trial Judge Act as a Gatekeeper Even if Not Asked to Do So?
Here’s a question that arose during a recent class: Suppose that a party in a criminal case seeks to introduce forensic evidence from a discipline of questionable validity, such as bite mark analysis. The lawyer on the other side isn’t aware that the technique has been the subject of scientific criticism and doesn’t object. Must the trial judge nonetheless assess the reliability of the proposed testimony before admitting it?
The Independent Source Exception to the Exclusionary Rule under the United States Constitution
I discussed the inevitable discovery exception in my last post. This post will discuss the independent source exception, particularly the United States Supreme Court cases of Segura v. United States, 468 U.S. 796 (1984), and Murray v. United States, 487 U.S. 533 (1988), and related North Carolina cases. It should be noted that the independent source exception was initially adopted in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), and can apply to investigations involving Fourth, Fifth, or Sixth Amendment violations.