Here’s a common fact pattern: Officers find a person in possession of drugs. The officers say, in effect, “we won’t arrest you if you’ll tell us who sold you the drugs.” The person then reports having recently purchased the drugs from a particular person at that person’s home. Does this provide probable cause to support a search warrant for the supplier’s home? Continue reading
Tag Archives: jackson
Last summer, I wrote about State v. Jackson, __ N.C. App. __, 758 S.E.2d 39 (2014), in which the court of appeals ruled that an officer lacked reasonable suspicion to stop a pedestrian who engaged in what the officer viewed as suspicious and evasive behavior. Last month, the state supreme court reversed the court of appeals. The opinion is here; my summary and analysis of it is below. Continue reading →
I’ve had more and more questions about introducing GPS tracking data in criminal trials. When I think about digital evidence, I think about authentication as the first hurdle. This post summarizes the law regarding the authentication of GPS data.
GPS data may come into criminal cases in several ways: because law enforcement placed a tracking device on a suspect’s vehicle; because a suspect was wearing a GPS tracking bracelet as a condition of probation or pretrial release; because law enforcement seized a cell phone or other device containing GPS data from a suspect; and so on. Although each situation presents slightly different considerations, it should often be possible to authenticate such data under Rule 901(b)(1) (testimony of a witness with knowledge that the data is what it is claimed to be), Rule 901(b)(9) (concerning “[e]vidence describing a process or system used to produce a result and showing that the process or system produces an accurate result”), or some combination of the two.
The leading case in North Carolina is State v. Jackson, __ N.C. App. __, 748 S.E.2d 50 (2013). The defendant committed a sexual assault while wearing a GPS tracking device as a condition of his pretrial release. The supervisor of the electronic monitoring unit testified regarding how the tracking device worked. The defendant argued that the tracking data was not properly authenticated, but the court of appeals ruled to the contrary. However, the court did not analyze the authentication issue in detail — instead focusing mainly on whether the data were inadmissible hearsay — so the opinion is useful mainly for cases that have similar facts.
A few cases from other jurisdictions provide more general guidance. Most courts seem satisfied if a witness with a working familiarity with the GPS system explains how it works, how the data were collected, and what the data mean. See United States v. Espinal-Almeida, 699 F.3d 588 (1st Cir. 2012) (ruling that data taken from GPS device seized from boat used for drug trafficking were properly authenticated by the testimony of the lab analyst who examined the device; the analyst provided a “good amount of testimony about the processes employed by the GPS,” allowing the court to apply Fed. R. Evid. 901(b)(9), which permits a witness to describe a process or system and thereby authenticate the result of the process or system; the court ruled that expert testimony was not required to authenticate the data, noting that the analyst was “knowledgeable, trained, and experienced in analyzing GPS devices”).
Several cases have focused on the qualifications and experience necessary to authenticate the data. Courts generally have ruled that the witness need not be an expert so long as the witness is familiar with the technology. Id. See also United States v. Brooks, 715 F.3d 1069 (8th Cir. 2013) (a bank robber was apprehended based on a GPS device that was placed surreptitiously in the loot bag; the trial judge properly took judicial notice of the “accuracy and reliability of GPS technology” generally, and the testimony of an employee of the security company that supplied the device was sufficient to admit the data generated by the device in question; although the witness apparently lacked a “scientific background,” he had worked for the company for 18 years, “had been trained by the company . . . knew how the device worked, and . . . had demonstrated the device for customers dozens of times”); United States v. Thompson, 393 Fed. Appx. 852 (3d Cir. 2010) (unpublished) (a bank robber was apprehended based on a GPS device that was placed surreptitiously in the loot bag; the GPS data was authenticated at trial by an employee of the security company that supplied the device; he explained how the device worked, and he was properly permitted to testify as a lay witness rather than an expert given that his knowledge was based on his personal experience with such devices).
I’m interested in readers’ thoughts about this issue and experiences with different kinds of witnesses used to authenticate GPS data.
More and more criminal cases involve electronic tracking. Sometimes the defendant is tracked using GPS, other times using cell site location information. Either way, interesting evidentiary questions arise. May an officer who knows how to use a tracking device testify about tracking, even if she doesn’t know much about how the underlying technology works? Who can testify about cellular towers and how cellular telephones connect to them? Is such testimony lay witness testimony or expert testimony?
GPS tracking. The recent case of State v. Jackson, __ N.C. App. __, 748 S.E.2d 50 (2013), provides helpful guidance regarding GPS tracking. The defendant in that case sexually assaulted a woman on the street. He was wearing an ankle bracelet, apparently as a condition of pretrial release on other charges. At trial, the supervisor of the Charlotte-Mecklenburg Police Department’s electronic monitoring unit testified about the ankle bracelet and introduced a video tracking the defendant’s movements during the time period in question. On appeal, the defendant contended that “the State failed to establish a proper foundation to verify the authenticity and trustworthiness of the data” and needed to verify the accuracy of the data before it could be admitted, but the court ruled that the officer’s “testimony established a sufficient foundation of trustworthiness.” The court also stated that the officer’s testimony was admissible as lay witness testimony based on his review of the tracking data, rather than as expert testimony. Both the fact that the court approved of testimony from an officer – rather than a scientist or an engineer – and the fact that the court deemed the testimony lay testimony are significant.
As an aside, Jackson makes an interesting contrast to State v. Meadows, 201 N.C. App. 707 (2010), where the court of appeals ruled that an officer could not testify as an expert regarding the use of the NarTest machine to identify controlled substances, because there was insufficient evidence of the machine’s reliability and the officer had no training in chemistry to allow him to assess the functioning of the machine.
Cell site tracking. I’m not aware of a North Carolina appellate case addressing the evidence issues surrounding cell site tracking testimony. However, there are some relevant cases from appellate courts around the country. Some cases involve officer witnesses, while others involve witness from telecommunications service providers. Let’s look at those cases separately.
Testimony by officers. Several courts have allowed officers to testify as lay witnesses regarding at least basic cell site tracking procedures. See, e.g., United States v. Feliciano, 300 Fed. Appx. 795 (11th Cir. 2008) (unpublished) (holding that a trial judge did not abuse his discretion in allowing an officer to testify “about cell tower sites”; the officer “simply reviewed the cellular telephone records . . . which identified cellular towers for each call, and based on his personal knowledge concerning the locations of certain cellular towers, testified that, at the time of the call [a specific phone was not near a specific location]”); United States v. Evans, 892 F.Supp.2d 949 (N.D. Ill. 2012) (holding that an officer would be allowed to testify as a lay witness regarding the location of cell towers and regarding which towers the defendant’s cell phone used at what time, and that the officer would be allowed to plot the towers on a map without qualifying as an expert; however, any testimony about how cellular networks work and “granulization theory” would require qualification as an expert). On the other hand, Wilder v. State, 991 A.2d 172 (Md. Ct. App. 2010), ruled that “the use of cell phone site location evidence and the accompanying testimony of a law enforcement officer who explain[s] its use require the qualification of the sponsoring witness as an expert.” It seems to me that the more technical and complicated the tracking procedure is, the more likely a court would be to require an officer to qualify as an expert in order to testify about it.
Testimony by employees of telecommunications service providers. Courts have also considered testimony from employees of cellular service providers. Most courts seem to have allowed relatively low-level employees to testify as lay witnesses about cell site tracking. See, e.g., Gosciminski v. State, __ So.3d __, 2013 WL 5313183 (Fla. Sept. 12, 2013) (a Nextel engineer testified during a murder case regarding “maps of the cell towers, the coverage areas of the towers, propagation information, and specific cell phone calls made or received by [the defendant]” and introduced diagrams regarding tower locations and sector information; this was properly admitted and did not require that the engineer be qualified as an expert because “such information is understood by the average juror who owns a cell phone”); Woodward v. State, __ So.3d __, 2011 WL 6278294 (Ala. Ct. Crim. App. Dec. 16, 2011) (lay witnesses employed by cell phone company were properly allowed to testify that cell phone records “indicated the locations of the callers at certain times”; the testimony did not require specialized knowledge and was limited to information regarding “cell towers used during certain phone calls”); Malone v. State, 73 So.3d 1197 (Miss. Ct. App. 2011) (cell phone company employees properly testified as lay witnesses regarding cell phone records, tower locations, tower coverage information, and tower usage; none of this was “so complex or technical as to render it expert testimony”). Again, the more complex the testimony is, the stronger the argument for requiring the witness to qualify as an expert.
Conclusion. The evidence issues surrounding tracking technology may prove difficult to settle. In part, this is because tracking technology itself changes so rapidly that decisional law struggles to keep up. But it is also because the line dividing lay and expert testimony is unstable. A witness must testify as an expert if the witness’s testimony involves “scientific, technical or other specialized knowledge,” N.C. R. Evid. 702, that is beyond the experience of a typical juror. But a typical juror today knows far more about GPS satellites and cellular towers than a typical juror a decade ago. And of course, tomorrow’s jurors likely will know even more.
Tucked into the 2013 North Carolina budget bill is a provision imposing new court costs for expert witnesses who testify about chemical or forensic analyses at trial. Specifically, the new law (sec. 18B.19 of the budget bill) provides that upon conviction the trial judge must require a convicted defendant to pay $600 in costs if a state or local government crime lab employee testified at trial as an expert witness about a specified chemical or forensic analysis. The costs support the state crime lab or go to the local government unit that operates the lab to be used for law enforcement. There’s really no question about why this provision is in the budget bill. In the wake of Melendez-Diaz, crime labs have been stretched to produce forensic analysts in court while keeping up with the testing work. This provision is a legislative response to that pressure. But is it constitutional?
Citing United States v. Jackson, 390 U.S. 570 (1968), defense lawyers may argue that the statute impermissibly chills a defendant’s confrontation rights. See generally Richard Friedman, Potential Responses to the Melendez-Diaz Line of Cases at 10 (suggesting that cost recoupment for laboratory analysts raises constitutional issues). In Jackson, the Court held unconstitutional a provision of the Federal Kidnapping Act that authorized the death penalty if a jury recommended it, but contained no procedure for imposing death on a defendant who waived the right to a jury trial or pleaded guilty. The Supreme Court found that the death penalty provision impermissibly chilled the defendant’s Fifth Amendment right not to plead guilty and Sixth Amendment right to demand a jury trial. It stated: If a “provision ha[s] no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional.” 390 U.S. at 581. The Court continued, explaining that if, however, the statute has a legitimate government objective, that objective cannot be pursued “by means that needlessly chill the exercise of basic constitutional rights.” Id at 582. In the latter context, the question is whether the chilling effect is “unnecessary and therefore excessive.” Id. The Court found that the provision at issue was unconstitutional because although the government had a legitimate purpose—mitigating the severity of capital punishment—that goal could have been achieved without penalizing defendants who plead not guilty and demand a jury trial.
In later decisions, the Court has declined to adopt a broad reading of Jackson. In Chaffin v. Stynchcombe, 412 U.S. 17 (1973), for example, it noted that “Jackson did not hold . . . that the Constitution forbids every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.” Id. at 30-31 (rejecting a claim by a defendant who received a harsher sentence on retrial than in his original trial; the defendant’s rights were not impermissibly chilled because the threat of a harsher sentence was speculative and simply another of the difficult choices which were an “inevitable attribute” of our judicial system). And in Fuller v. Oregon, 417 U.S. 40 (1974), the Court rejected a defendant’s argument that Jackson mandated invalidation of an Oregon recoupment statute requiring indigent defendants who subsequently acquired financial resources to repay their legal defense costs. The defendant had argued that knowing he may later be required to repay his legal costs could have impelled him to decline the services of an appointed attorney, and thus chilled his constitutional right to counsel. Rejecting this argument, the Court reasoned that since the statute was tailored to impose an obligation on only those who were able to repay costs, assessing costs on these defendants was not unnecessary to achieve its governmental purposes nor was it likely to substantially chill a defendant’s rights. Other decisions have declined to extend Jackson. See, e.g., Corbitt v. New Jersey, 439 U.S. 212, 218 (1978) (“cases . . . since Jackson have clearly established that not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid”).
My research hasn’t turned up any case law addressing the Jackson argument in relation to a statute similar to the new NC provision. However, many jurisdictions have general cost recoupment statutes. These statutes provide for recoupment of the “costs of prosecution” or “reasonable costs of prosecution,” and have been interpreted to allow for, among other things, the cost of testimony by government witnesses. See, e.g., People v. Palomo, 272 P.3d 1106, 1111 (Colo. Ct. App. 2011) (costs awarded for state technicians who testified as experts in ballistics, gunshot residue, and fingerprints). Jackson “chilling” arguments have not succeeded as to these statutes. United States v. Palmer, 809 F.2d 1504, 1506 (11th Cir. 1987); United States v. Wyman, 724 F.2d 684, 688 (8th Cir. 1984); United States v. Chavez, 627 F.2d 953, 955 (9th Cir. 1980); United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986); United States v. Escobar, 1987 WL 31141, *5-6 (S.D. Cal. Sept. 30, 1987) (unpublished); Com. v. Coder, 415 A.2d 406, 408 (Pa. 1980); People v. Estate of Scott, 363 N.E.2d 823, 824 (Ill. 1977); King v. State, 780 P.2d 943, 958 (Wyo. 1989); State v. Marinucci, 321 N.W.2d 462, 467 (N.D. 1982). But see United States v. Glover, 588 F.2d 876, 878-79 (2d Cir. 1978) (per curiam) (although upholding a discretionary “costs of prosecution” provision in 28 U.S.C. § 1918(b), the court suggested that a mandatory provision might be unconstitutional in that it might chill constitutional rights).
However, the new NC law isn’t a general cost recoupment statute. Central to the courts’ analyses in the cases rejecting Jackson chilling arguments as to general cost recoupment statutes is their legitimate purpose: recovering a portion of prosecution expenses. Because the NC statute applies only to the prosecution’s forensic experts, defense lawyers might argue that the statute has no legitimate purpose other than to chill the assertion of newly recognized confrontation rights. That, of course, is categorically unconstitutional under Jackson. Assuming that it can be credibly argued that the statute has another valid objective (such as cost recoupment, an assertion that finds support in the statute’s provision regarding allocation of funds), the analysis shifts to whether the undeniable chilling effect on confrontation rights is—in the words of Jackson—“unnecessary.” Defense lawyers may argue that as in Jackson, the legitimate objective of supporting the crime labs can be achieved in ways that do not penalize defendants for exercising their constitutional confrontation rights. The State might respond by arguing, among other things, that the $600 cost is too low to rise to the level of a constitutional impediment and that more neutral general cost recoupment statutes have been held constitutional even though they impose a greater burden on the defendant’s rights.
Those are my musings for now. I’m still thinking about the issue and I’d appreciate any wisdom you have.
In a case decided earlier this month, the North Carolina Court of Appeals held that Maryland v. Craig, which allows certain child abuse victims to testify by way of closed-circuit television (CCTV) systems, survives Crawford. Crawford, of course, is the U.S. Supreme Court’s 2004 decision radically revamping confrontation clause analysis. As a general rule, the confrontation clause protects the right to face-to-face confrontation. This is understood to mean that the witness testifies live at trial in a setting in which the defendant and the witness can see and hear each other. In Maryland v. Craig, 497 U.S. 836 (1990), however, the United States Supreme Court carved out an exception to the right to face-to-face confrontation. In Craig, the Court upheld a Maryland statute allowing a judge to receive, through a one-way CCTV system, testimony from an alleged child abuse victim. The Court reaffirmed the importance of face-to-face confrontation of witnesses appearing at trial, but concluded that such confrontation was not an indispensable element of the confrontation right. It held that while “the Confrontation Clause reflects a preference for face-to-face confrontation, . . . that [preference] must occasionally give way to considerations of public policy and the necessities of the case.” Id. at 849 (quotation and citation omitted). It went on to explain that the confrontation right “may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id. at 838 (emphasis added). As to the important public policy at issue in the case at hand, the Court stated: “a State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers.” Id. at 854. However, the Court made clear that the State must make a case-specific showing of necessity. Specifically, the trial court must (1) hear evidence and determine whether the procedure is necessary to protect the welfare of the child witness; (2) find that the child would be traumatized by the defendant’s presence; and (3) find that the child’s emotional distress “is more than de minimis.” Id. at 855-56. The Court went on to note that in the case presented, the reliability of the testimony was otherwise assured. Although the law prevented a child witness from seeing the defendant while testifying, it required that (1) the child be competent and under oath; (2) the defendant have full opportunity for contemporaneous cross-examination; and (3) the judge, jury, and defendant are able to view the witness while he or she testified. Id. at 851.
Some questioned whether Craig remained good law after Crawford. After all, Craig involved a balancing of interests and rights: the public policy interest in protecting child victims versus a defendant’s confrontation clause rights. Crawford, however, noted that “[b]y replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design.” Crawford, 541 U.S. at 67-68. Earlier this month North Carolina’s intermediate appellate court addressed the issue, holding that Craig survives Crawford. The case was State v. Jackson and it involved sex offenses allegedly committed against a four-year-old victim C.G. The trial court found C.G. (who was six at the time of trial) competent to testify. Based primarily on expert witness testimony that C.G. would experience trauma by testifying in the defendant’s presence that would affect her ability to communicate with the jury, the trial court authorized C.G. to testify using a CCTV system. Using such a system, C.G. testified that the defendant “put his priva[te] part in [her] mouth” while wiggling his body and “put his finger in [her] private part.” The defendant was found guilty and he appealed, arguing in part that by allowing C.G. to testify using a CCTV system, his confrontation clause rights were violated. The court rejected this argument, deciding instead to “join the weight of authority” and hold that Craig survives Crawford. The court went on to find that C.G.’s testimony complied with both Craig and G.S. 15A-1225.1, the statute allowing for CCTV testimony by child victims.
So where are we? Notwithstanding Jackson, prosecutors still may be taking a risk when they seek to have a child victim testify by way of CCTV in a criminal case. Given the importance of the issue I wouldn’t be surprised if we get a higher court opinion, which of course, might come out differently. Also, it’s important to note that Craig pertained to child victims. A lot of people cite Craig as allowing for remote testimony by other types of witnesses, such as those who are elderly, frail, or inconveniently located. But applying Craig—and Jackson—to those scenarios would extend existing law. And given the massive quantity of post-Crawford litigation, it’s probably safe to assume that such an extension will lead to a court challenge.
Defendants sometimes argue, usually in sexual assault cases, that the complaining witness should not be called a “victim” during court proceedings. The basis of the argument is that using that term assumes the very fact to be proved, namely, the the defendant committed a crime against the complainant.
Several courts around the country have accepted versions of this argument:
- State v. Devey, 138 P.3d 90 (Utah Ct. App. 2006) (“We agree with Devey that in cases such as this – where a defendant claims that the charged crime did not actually occur, and the allegations against that defendant are based almost exclusively on the complaining witness’s testimony – the trial court, the State, and all witnesses should be prohibited from referring to the complaining witness as ‘the victim.’” However, isolated reference to the “victim” by a single witness was harmless error.)
- Jackson v. State, 600 A.2d 21 (Del. 1991) (“The term ‘victim’ is used appropriately during trial when there is no doubt that a crime was committed and simply the identity of the perpetrator is in issue. We agree with defendant that the word “victim” should not be used in a case where the commission of a crime is in dispute.” However, use of the term by the prosecutor did not rise to the level of plain error.)
- Talkington v. State, 682 S.W.2d 674 (Tex. Ct. App. 11 Dist. 1984) (conviction reversed because trial court referred to the complainant as the “victim” in a rape case where the defense was consent)
As the above cases suggest, the argument has the greatest force when the defense is that no crime took place, for example because the sexual activity was consensual, or because the complainant fabricated the allegations. It is less powerful when the defense is mistaken identity, for in such a case, there is no question that the complainant is a victim — the only issue is who is responsible for that.
Notwithstanding the above cases, the law in North Carolina appears to be that the complainant may be called a “victim” even in cases where the defendant claims that no crime took place. The court of appeals’ recent decision in State v. Jackson is instructive. The defendant in Jackson impregnated his fourteen-year-old niece and was charged with statutory rape. His defense was that she drugged him and had sex with him. (In other words, he claimed that no crime had taken place.) The prosecutor and some of the state’s witnesses referred to the niece as the “victim,” as did the trial judge while instructing the jury. After he was convicted, the defendant appealed.
The court of appeals found that the state’s use of the term “victim” was, if error at all, not prejudicial, and that the court’s use of “victim” while reading the pattern jury instruction was not an expression of opinion and so was not error. (The court cited State v. McCarroll, 336 N.C. 559 (1994), which rejected the argument that the trial judge committed plain error when he referred to the complainant as the “victim” in jury instructions, and found that the instructions overall placed the burden of proof on the state.)
Because the court’s ruling on the state’s use of the term “victim” was only that any error was not prejudicial, Jackson falls short of being a complete green light to the use of that term. But the case holds that the court’s use of the term “victim” was not error at all, and it seems to me that there is less reason to worry about the state’s use of the term than to worry about the court’s use of it. Unlike the court, the state is not supposed to be neutral between the parties. And in any event, the very act of prosecuting the defendant signals the state’s belief that the complainant is a victim. So I tend to think that after Jackson, both the state and the court may refer to the complainant in a sexual assault case as a “victim,” though always with the understanding that the burden of proof is with the state.