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CRIMINAL LAW: Limits on Prosecution of Consensual Sexual Relations


The Lawletter Vol 38 No 9

Suzanne Bailey, Senior Attorney, National Legal Research Group

     The U.S. Supreme Court's recent denial of the Commonwealth of Virginia's petition for writ of certiorari in MacDonald v. Moose, 710 F.3d 154 (4th Cir.), cert. denied, 82 U.S.L.W. 3029 (U.S. Oct. 7, 2013), reminds us that 10 years after the landmark decision in Lawrence v. Texas, 539 U.S. 558 (2003), holding that it is a violation of the Due Process Clause to prohibit two individuals of the same sex from engaging in consensual sexual conduct, courts are still grappling with the nature of what consensual sexual activity is protected from criminal prosecution. While Lawrence specifically addressed consensual homosexual sexual conduct, the Court's adoption of language from Justice Stevens's dissent in Bowers v. Hardwick, 478 U.S. 186 (1986), clarified the sweeping nature of the Court's ruling:

Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.

Lawrence, 539 U.S. at 577-78 (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)).

     The above-quoted excerpt from Lawrence paved the way for decisions invalidating state statutes criminalizing sexual intercourse between unmarried adult heterosexuals. See, e.g., Martin v. Ziherl, 607 S.E.2d 367 (Va. 2005) (because Virginia fornication statute was an unconstitutional due process violation of an unmarried individual's liberty interest in engaging in private intimate conduct and maintaining personal relationships without governmental interference, the rule precluding a party consenting to, and participating in, an illegal act from recovering damages from another participant did not apply to bar the plaintiff's claims against the defendant for injuries arising from herpes allegedly contracted as a result of sexual intercourse). Likewise, Lawrence has been relied upon to invalidate statutes prohibiting consensual acts of sodomy between heterosexual adults. See MacDonald, 710 F.3d 154.

     However, the Lawrence decision was not without its limits. The Court observed:  "The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution." 539 U.S. at 578. Accordingly, courts have refused to find that Lawrence forbids prosecution for incest, see, e.g., People v. McEvoy, 154 Cal. Rptr. 3d 914 (Ct. App. 2013), even if the alleged victim is a consenting adult, see, e.g., Lowe v. Swanson, 663 F.3d 258 (6th Cir. 2011).  Similarly, courts have not found Lawrence to be a bar to prosecutions for solicitation to commit sexual acts in a public place, see, e.g., Singson v. Commonwealth, 621 S.E.2d 682 (Va. Ct. App. 2005), or for prostitution, see, e.g., State v. Romano, 155 P.3d 1102 (Haw. 2007). Lawrence did not render unconstitutional a Kansas statute making sexual relations between a teacher and a student a crime, even though the
student, who was still in school, was 18 years old at the time and had consented to the sexual conduct. State v. Edwards, 288 P.3d 494 (Kan. Ct. App. 2012); see also State v. Fischer, 199 P.3d 663 (Ariz. Ct. App. 2008) (affirming conviction of defendant for sexual conduct with a minor and conspiracy to commit sexual conduct with a minor and rejecting defense argument that defendant had fundamental right under Lawrence to engage in sexual relations with his "celestial wife" or one of his plural wives).

     As the prosecution learned in MacDonald, however, the mere fact that the alleged victim is a minor does not take the act out of the protective sphere of Lawrence if the offense charged is not based on the victim's age. In that case, which came before the Fourth Circuit Court of Appeals on appeal of the denial of a petition for writ of habeas corpus, the petitioner was convicted after a bench trial of the misdemeanor of contributing to the delinquency of a minor and of felony criminal solicitation. The criminal solicitation conviction was treated as a felony by virtue of the commission of a predicate felony, in this case, sodomy, resulting in the petitioner's obligation to register as a sex offender. Although the Virginia Code creates sexual offenses based on the age of the victim, in this case, the "anti-sodomy [predicate offense] provision [did] not mention the word 'minor,' nor [did] it remotely suggest that the regulation of sexual relations between adults and children had anything to do with its enactment." 710 F.3d at 165.  "[A]lthough the Virginia General Assembly might be entitled to enact a statute specifically outlawing sodomy between an adult and an older minor, it has not seen fit to do so." Id. It was not for the trial court to revise the statute to limit its applications in cases in which the victim was a minor.  Because the statute was facially unconstitutional under Lawrence, the Fourth Circuit reversed and remanded for an award of habeas corpus relief.

     Lawrence makes it clear that the State cannot criminalize private consensual sexual relations between adults. While it may be appropriate for a state legislature to protect a certain class of victim, even in the case of consensual acts, MacDonald demonstrates that the legislature must do so explicitly in order for the prosecution to fall outside of the rule in Lawrence. At a time when states are increasing the offenses requiring sex offender registration and some states are making it more difficult, if not impossible, to be removed from the sex offender registry, it is well worth considering whether Lawrence applies to bar prosecution or reduce the charges.

CRIMINAL LAW: Retroactivity of Supreme Court Decision in Padilla v. Kentucky


The Lawletter Vol 38 No 8

Mark Rieber, Senior Attorney, National Legal Research Group

     In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court held that the Sixth Amendment right to effective assistance of counsel requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea.  In Chaidez v. United States, 133 S. Ct. 1103 (2013), the Supreme Court held that Padilla announced a "new" rule under Teague v. Lane, 489 U.S. 288 (1989), and thus does not apply retroactively to collateral challenges under federal law.  Despite Chaidez, the Supreme Judicial Court of Massachusetts held that under Massachusetts law, the Sixth Amendment right enunciated in Padilla was not a "new" rule and, consequently, that defendants may attack their convictions collaterally on Padilla grounds.  Commonwealth v. Sylvain, 466 Mass. 422, ___ N.E.2d ___ (2013).

     Sylvain decided that under Massachusetts law, the court may give broader retroactive effect to Padilla as a matter of state law than Padilla would otherwise enjoy under federal law. The Massachusetts court explained that although in an earlier decision it had adopted the Teague retroactivity framework, including Teague's original construction of what constitutes a "new" rule, the Supreme Court's post-Teague expansion of what qualifies as a "new" rule has become so broad that decisions defining a constitutional safeguard rarely merit application of collateral review.  Sylvain concluded that it would continue to adhere to the Supreme Court's original construction that a case announces a "new" rule only when the result is "not dictated by precedent."  Under this narrower interpretation, Sylvain determined that Padilla did not announce a "new" rule, because "it applied a general standard—designed to change according to the evolution of existing professional norms—to a specific factual situation."  Id. at 435, ___ N.E.2d at ___.  Accordingly, Sylvain held that the defendant in the case before it, whose conviction was final at the time Padilla was decided, was entitled to seek relief under the Sixth Amendment right recognized in Padilla.

CRIMINAL LAW: Search and Seizure: Taking of DNA Samples from Criminal Suspects


The Lawletter Vol 38 No 6

Doug Plank, Senior Attorney, National Legal Research Group

In a significant decision handed down near the end of its 2012-2013 Term, the U.S. Supreme Court ruled for the first time that a State's practice of taking and collecting, without consent, DNA evidence from the body of a criminal suspect charged with a serious crime is not an unreasonable search for purposes of the Fourth Amendment.  In reversing the contrary decision of the Court of Appeals of Maryland, the Supreme Court held in Maryland v. King, 133 S. Ct. 1958 (June 3, 2013), that the use of a swab to collect samples from the inner tissues of a person's cheek is indeed a search under the Fourth Amendment but that the intrusion is a relatively minor one.  According to the Court, when weighed against the legitimate government interest in the identification of arrestees, particularly in light of the unmatched potential of DNA identification to serve that interest, the practice of taking DNA samples must be viewed as a reasonable intrusion on the privacy interest of the suspect. 

Justice Scalia dissented in an opinion joined by three other Justices, pointing out that whenever the Court has previously allowed a suspicionless search under the Fourth Amendment, it has insisted upon a justifying motive apart from the investigation of crime.  He then pointed out that the stated rationale of the DNA swabbing—the identification of the suspect—was obviously a false one, for it was clear that the State was using the DNA for investigative purposes:  "The Court's assertion that DNA is being taken, not to solve crimes, but to identify those in the State's custody, taxes the credulity of the credulous."  Id. at 1980 (Scalia, J., joined by Ginsburg, Sotomayor, and Kagan, JJ., dissenting) (emphasis in original).

CRIMINAL LAW: False Confessions—Admissibility of Expert Testimony


The Lawletter Vol 38 No 5

Mark Rieber, Senior Attorney, National Legal Research Group

A growing number of state courts have ruled that expert testimony concerning the phenomenon of false confessions may be admissible in a criminal trial.  The Supreme Court of Michigan recently addressed this matter and held that while such expert testimony is potentially admissible, the expert testimony at issue before the court was based on unreliable research and literature on the phenomenon of false confessions and was thus inadmissible, as had been ruled by the trial court.  People v. Kowalski, 821 N.W.2d 14 (Mich. 2012).

The court held that because the claim of a false confession is beyond the common knowledge of the ordinary person, expert testimony about the phenomenon is admissible when it meets all the other requirements of the Michigan Rule of Evidence pertaining to expert testimony, namely, that the testimony be based on sufficient facts and that it be the product of reliable
methods that have been reliably applied to the facts of the case so as to "assist the trier of fact to understand the evidence or to determine a fact in issue."  Id. at 27-28.  However, like many other courts, Kowalski held that the proposed expert testimony in the case before it was based on unreliable research and literature about the phenomenon of false confessions and was thus inadmissible.  Kowalski cited Vent v. State, 67 P.3d 661 (Alaska Ct. App. 2003), in support of its decision.  Vent had also upheld the exclusion of the testimony given by the same expert witness as in Kowalski and that was similar to the testimony he would offer in KowalskiVent explained that while some courts have allowed such testimony, many have held that it is not an abuse of discretion to exclude it when there is no way to quantify or test it.

With respect to a different aspect of the proposed expert testimony, Kowalski remanded the matter to the trial court to further consider whether a second expert's testimony regarding the defendant's psychological profile, which he had constructed from psychological tests and
clinical interviews of the defendant, was admissible on the claim of false confession.  The opinion indicated that such testimony might assist the trier of fact and would be admissible if it met the other requirements of the Rule of Evidence pertaining to expert testimony.  

CRIMINAL LAW: Search Warrant Requirement—Drunk Driving—No Per Se Exigency for Exception to Warrant Requirement


The Lawletter Vol 38 No 4

Mark Rieber, Senior Attorney, National Legal Research Group

In Missouri v. McNeely, 133 S. Ct. 1552 (2013), the U.S. Supreme Court held that the natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment warrant requirement for nonconsensual blood testing in all drunk-driving cases.  Rather, in this context, such exigency must be determined case by case based on the totality of the circumstances.  In McNeely, after the defendant had been arrested for driving while intoxicated and had refused a Breathalyzer test, the highway patrol officer took him to a hospital for blood testing.  The defendant refused to consent to a blood test, but the officer directed a laboratory technician to take a sample.  The officer did not attempt to secure a search warrant before the sample was taken, because he believed it was not legally necessary to obtain a warrant. 

The Supreme Court's decision resolved a split of authority on the question.  Id. at 1558 n.2 (citing cases).  While recognizing that exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process, the Court observed that adopting the State's per se approach would improperly ignore the current and future technological developments in warrant procedures and might well diminish the incentives for jurisdictions to pursue progressive approaches to warrant acquisition that preserve the protection afforded by the warrant while meeting the legitimate interests of law enforcement.

Because the case before the Court was argued on the broad proposition that drunk-driving cases present a per se exigency, the arguments and record did not provide the Court with an analytical framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant.  "It suffices to say," according to the Court,

that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required.  No doubt, given the large number of arrests for this offense in different jurisdictions nationwide, cases will arise when anticipated delays in obtaining a warrant will justify a blood test without judicial authorization, for in every case the law must be concerned that evidence is being destroyed.

Id. at 1568.  The Court stated, however, that the inquiry "ought not to be pursued here where the question is not properly before this Court."  Id.

CRIMINAL LAW: Gun Restrictions


The Lawletter Vol 38 No 3

Doug Plank, Senior Attorney, National Legal Research Group

After the U.S. Supreme Court ruled in District of Columbia v. Heller, 554 U.S. 570 (2008), that the Second Amendment provides citizens with an individual right to possess firearms, striking down a District of Columbia law that prohibited keeping guns in homes for self‑defense, a number of states enacted new measures to restrict the carrying of guns in public.  In New York, for example, the legislature enacted a law requiring an applicant to show that he or she had a "proper cause"—a special need for self-protection—to obtain a license to carry a concealed handgun in public.  N.Y. Penal Law § 400.00(2)(f).  This law was upheld by the Second Circuit against attacks based on the Second Amendment by plaintiffs who had unsuccessfully sought a license to carry a concealed handgun, as the court found that the law was substantially related to the State's interest in public safety and crime prevention.  Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012).

Similar measures enacted in other jurisdictions have met with mixed reactions.  For example, Illinois enacted statutes that generally prohibited the carrying of guns in public, but the Seventh Circuit found that those laws violated the Second Amendment right to bear arms for self‑defense outside the home.  Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012).  However, the Fourth Circuit recently upheld a newly enacted Maryland statute that required applicants to demonstrate "a good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger."  Woollard v. Gallagher, 712 F.3d 865, 2013 WL 1150575, at *3 (4th Cir. 2013).

Despite these conflicting opinions in the courts of appeals, the Supreme Court recently declined to accept for review a petition for certiorari filed by the unsuccessful plaintiffs in the Kachalsky case, thus leaving it for the time being to the lower courts to define the precise scope of the right recognized for the first time in Heller.

CRIMINAL LAW: Driver Using Cell Phone Convicted of Negligent Homicide


The Lawletter Vol 38 No 2

John Stone, Senior Attorney, National Legal Research Group

In New Hampshire, text messaging while driving a vehicle is illegal, but simply talking on a cell phone while driving is not.  In the right set of circumstances, however, the otherwise legal act of talking on a cell phone while driving can support a criminal conviction for negligent homicide when that conduct leads to a fatal accident.  Such was the outcome in State v. Dion, No. 2011-786, 2013 WL 474884 (N.H. Feb. 8, 2013) (not yet released for publication).

At about dusk, the vehicle driven by Lynn Dion, traveling at about 30 miles per hour, struck and killed a pedestrian, who had nearly finished crossing a street and who was using a well-lit, brightly painted crosswalk marked with a yellow and black pedestrian crossing sign.  Dion denied ever seeing that pedestrian, or her companion, who was also struck by the vehicle but with less serious effects.  Dion admitted that intermittently during her fateful trip she had made and received some cell phone calls as she drove, but she denied that she had been on the phone at the time of the collision.

Reconstruction analysis of the collision by the police showed that the defendant had had fully 13.5 seconds in which to see the pair of pedestrians in the crosswalk as she drove across a bridge, that her view had been unobstructed, and that it would have taken her, at most, 1.5 seconds to react upon seeing the women.  Nevertheless, at no time before striking the pedestrian who died did Dion slow down, apply her brakes, or turn to avoid the pedestrians, indicating that Dion, as she herself stated, had completely failed to see them.  These facts further led the police to conclude that rather than experiencing a momentary distraction, such as could be caused by a sneeze or changing a station on her car radio, Dion had been inattentive for a longer period.  But how could this conclusion be reconciled with the defendant's insistence that she had not been on the phone during the moments immediately leading up to the accident?  The clinching evidence was Dion's cell phone records, which undercut that part of her story.  The records showed that Dion had placed a call to a friend, hung up a few seconds later, and only about 90 seconds after that placed her call to police from the scene of the accident.

Dion sought to no avail to keep her cell phone records from being used as evidence against her at her trial.  In upholding the use of such evidence, the court that rejected her appeal ruled that under New Hampshire Rule of Evidence 403, the probative value of the cell phone records was not outweighed by their prejudicial effect.  Dion had admitted to a law enforcement officer that she "had made phone calls throughout her trip," and the records of her calls bore directly on the issue of her attentiveness in the minutes leading up to the collision.  Such records were "inextricably intertwined" with evidence of the crime of negligent homicide.  Id. at *4-5.

As for the conviction itself, which led to a prison sentence, Dion argued to no avail that the evidence against her was insufficient to support her conviction for negligent homicide, because merely using a cell phone while driving does not constitute the required wrongful or blameworthy conduct to establish the culpable mental state for criminal negligence.  New Hampshire Revised Statutes section 630:3(I) makes it a felony to cause another person's death negligently.

Section 626:2 states as follows:

A person acts negligently with respect to a material element of an offense when he fails to become aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.  The risk must be of such a nature and degree that his failure to become aware of it constitutes a gross deviation from the conduct that a reasonable person would observe in the situation.

N.H. Rev. Stat. Ann. § 626:2(II)(d) (Westlaw current through Ch. 4 of the 2013 Reg. Sess., not incl. changes by H.H. Office of Legis. Servs.).

In Dion's case, her inattention to the road in front of her, caused by cell phone use and resulting in the failure to avoid pedestrians in a crosswalk, demonstrated that she had failed to exercise that degree of care, diligence, and safety that an ordinarily prudent person would exercise under similar circumstances.  Thus, the evidence was sufficient to support her conviction for negligent homicide.

CRIMINAL LAW UPDATE: Right to Effective Counsel During Plea Negotiations


April 10, 2013

Doug Plank, Senior Attorney, National Legal Research Group

Since the U.S. Supreme Court's ruling in Strickland v. Washington, 466 U.S. 668 (1984), it has been well settled that the Sixth Amendment guarantees to criminal defendants not simply the right to counsel but also the right to effective assistance of counsel.  Under Strickland, a violation of the right to counsel may be shown if the defendant demonstrates that (1) counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense. 

In Hill v. Lockhart, 474 U.S. 52 (1985), the Court concluded that the Sixth Amendment right to effective assistance of counsel extends to the plea-bargaining process and that the test established in Strickland should be applied to the situation in which a defendant enters a guilty plea following plea negotiations.  Until recently, the Court had not found that Strickland should apply when plea negotiations resulted in a defendant's refusal to plead guilty.  However, in early 2012, in Lafler v. Cooper, 132 S. Ct. 1376 (2012), the Court squarely held for the first time that the test from Strickland should be used to judge defense counsel's advice during the plea negotiations, whatever the outcome, and stated that in the context of a plea offer that was rejected on advice of counsel, a defendant could establish prejudice with evidence that

but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.

Id. at 1385.  

Such a multipart test obviously provides challenges with regard to the determination of prejudice, and the Court has recently indicated that it will revisit the issue of ineffective assistance of counsel in plea negotiations by agreeing to review the Sixth Circuit decision in Titlow v. Burt, 680 F.3d 577 (6th Cir. 2012). In Titlow, the Sixth Circuit granted the defendant's petition for a writ of habeas corpus under 28 U.S.C. § 2254 and thus reversed the rulings of both the U.S. District Court for the Eastern District of Michigan and the Michigan Court of Appeals, which each had found no constitutional violation of the defendant's right to counsel.

The facts in Titlow showed that the defendant, Vonlee Titlow, a transgender woman who had formerly been a man, was charged with the murder of her uncle, Donald Rogers.  The evidence regarding the cause of death was unclear, as Rogers was found dead on the floor with a drinking glass in his hand.  No autopsy was performed, and the medical examiner initially concluded that the cause of death was a heart attack.  After Rogers's body had been cremated, however, the cause of death was amended on the basis of photographs of the body, which appeared to show that Rogers had been asphyxiated, based on the fact that there were small scrapes around his nose that were consistent with impressions made by a decorative woven pillow that was found in the house. Subsequently, police were informed by Titlow's paramour that Titlow had told him that Rogers's wife had asked Titlow to help kill Rogers and that when Titlow and Rogers's wife had found Rogers passed out on the floor, they poured vodka down his throat in hopes of bringing about his death.  At some point, Titlow stopped and left the room, and Rogers's wife apparently then smothered Rogers.  Later, through the use of a concealed recorder, police managed to obtain a recording of Titlow describing what had transpired.

Titlow and Rogers's wife were each charged with first-degree murder and were tried separately.  Titlow's attorney immediately negotiated a plea agreement on her behalf, under which the State offered to reduce the charges to manslaughter, with a 7- to 15-year sentence, on the conditions that Titlow plead guilty, submit to a lie‑detector test, testify against Rogers's wife at trial, and not challenge the prosecutor's recommended sentencing range on appeal.  At the following plea hearing, Titlow admitted the allegations against her, acknowledged her understanding of the penalty she faced, and entered her plea of guilt.  The court accepted her plea and scheduled sentencing for a few months later.

While Titlow was in prison awaiting sentencing, she was told by a deputy sheriff that she should not plead guilty if she believed that she was innocent, and he referred her to an attorney who agreed to represent her in exchange for some jewelry and the media rights to her story.  Based on the advice of the new attorney, Titlow filed a motion to withdraw her guilty plea, which was subsequently granted by the court in a plea‑withdrawal hearing.  The conversations between Titlow and the deputy sheriff did not appear in the record of the hearing.

The record showed that Titlow's new attorney did not obtain Titlow's file, inspect the State's discovery materials, or speak with her former attorney about the case until approximately one and one-half months after the plea‑withdrawal hearing.  Soon after viewing the file, the attorney moved to withdraw, citing a breakdown in communications and a lack of funds.  The court granted that motion and appointed a new attorney for Titlow.

Because Titlow did not agree to testify against Rogers's wife, the State's prosecution against Rogers's wife was unsuccessful, and she was acquitted of the charges against her.  Titlow was then tried, and the jury convicted her of second-degree murder, after which the court imposed a sentence of 20 to 40 years in prison.  Titlow appealed, arguing that her counsel for the plea-withdrawal hearing had been ineffective by allowing her to withdraw her guilty plea, but the Michigan Court of Appeals rejected her appeal.   People v. Titlow, No. 241285, 2003 WL 22928815 (Mich. Ct. App. Dec. 11, 2003) (unpublished).  After the Michigan Supreme Court denied leave to appeal, Titlow filed a habeas corpus action in federal court.  The district court denied Titlow's petition, No. 07-CV-13614, 2010 WL 4115410 (E.D. Mich. Oct. 19, 2010), but issued a certificate of appealability.

In ruling that Titlow had indeed been prejudiced by ineffective assistance of counsel during withdrawal of her guilty plea, the Sixth Circuit found that the evidence did not support the state court's conclusion that Titlow had been advised to withdraw her plea based on a claim of innocence but, rather, demonstrated that the decision to withdraw her plea was based on the fact that the State's plea offer was substantially higher than the Michigan guidelines for second‑degree murder.  The court further concluded that the record contained no evidence that Titlow's attorney explained the elements necessary for the State to secure a conviction, discussed the evidence as it bore on those elements, or explained the sentencing exposure she would face as a consequence of exercising each of the options available.  In fact, the court found, the evidence showed that the attorney had not even bothered to familiarize himself with the details of the case before counseling Titlow to withdraw her plea.  The court therefore concluded that the attorney had failed to fulfill his clear obligation to provide sufficient advice to Titlow during the plea‑negotiation stage.

With regard to prejudice, the court found that the test in Lafler had been satisfied because (1) the plea offer was presented to, and accepted by, the state trial court at Titlow's initial plea hearing; (2) the sentence that Titlow ultimately received was nearly three times the punishment that she had been offered under the plea agreement; and (3) Titlow's position that she would have accepted the plea offer but for her attorney's intervening advice is bolstered by the fact that she had actually accepted the plea on the record at her initial plea hearing. 

The court noted that the remedy to which Titlow was entitled was complicated by the fact that under the plea bargain, she entered a guilty plea to manslaughter, whereas she was found guilty at trial of second-degree murder.  In such circumstances, the court found, Titlow did not simply suffer the injury of a higher sentence.  Moreover, because Titlow did not plead guilty pursuant to the agreement, she did not testify against Rogers's wife, and thus the State lost its main benefit of the bargain.  The court ultimately determined that because the initial plea offer to Titlow was to a lesser‑included offense instead of the offense of conviction, it would conditionally grant the petition for a writ of habeas corpus and give the State 90 days to reoffer Titlow the original plea agreement or, failing that, to release her.  The court further directed that if the State in fact were to reoffer the plea agreement and Titlow were to accept, the state court could then exercise its discretion to fashion a sentence for Titlow that both remedied the violation of her constitutional right to the effective assistance of counsel and took into account any concerns that the State might have regarding the loss of Titlow's testimony against her aunt.

As noted above, the State sought review of the Sixth Circuit's decision, and the Supreme Court has agreed to consider three questions arising from the case:  (1) whether the Sixth Circuit failed to give appropriate deference to the Michigan state court in holding that defense counsel was constitutionally ineffective for allowing Titlow to maintain a claim of innocence; (2) whether a convicted defendant's subjective testimony that he or she would have accepted a plea but for ineffective assistance is, standing alone, sufficient to demonstrate a reasonable probability that the defendant would have accepted the plea; and (3) whether Lafler always requires a state trial court to resentence a defendant who shows a reasonable probability that he or she would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to "remedy" the violation of the defendant's constitutional right.  The resolution of these issues by the Court should provide lower courts with more guidance as to how to remedy the prejudice suffered by a defendant who withdraws from a plea offer because of bad advice from counsel.

CRIMINAL LAW: Determining the Reliability of Eyewitness Identification Under the Rules of Evidence


The Lawletter Vol 38 No 1

Suzanne Bailey, Senior Attorney, National Legal Research Group

A voluminous body of scientific knowledge on the subject of eyewitness identification has developed over the last 30 years, as well as extensive commentary and research by psychologists and jurists on the dangers of misidentification and the unreliability of eyewitness identification.  Acknowledging and compiling this corpus, the Supreme Court of Oregon, in State v. Lawson, 291 P.3d 673 (Or. 2012), recently revised the methodology for determining the admissibility of eyewitness testimony in Oregon courts.

Until Lawson, challenges to eyewitness testimony involved the two-step analysis articulated in State v. Classen, 590 P.2d 1198 (Or. 1979).  Under Classen, the defendant bore the burden of showing, under the first prong of the analysis, that "the process leading to the offered identification was suggestive or needlessly departed from procedures prescribed to avoid such suggestiveness."  Lawson, 291 P.3d at 683 (quoting Classen, 590 P.2d at 1203).  If the defendant showed that the process of identification was suggestive, the second prong required the prosecution to demonstrate to the court that "the proffered identification ha[d] a source independent of the suggestive confrontation . . . or that other aspects of the identification at the time it was made substantially exclude the risk that it resulted from the suggestive procedure." Id. at 683-84 (quoting Classen, 590 P.2d at 1203).

In determining whether an identification had been made independent of suggestive procedures, courts were directed to consider a nonexclusive list of factors, including

the opportunity that the witness had at the time to get a clear view of the persons involved in the crime and the attention he or she gave to their identifying features, the timing and completeness of the description given by the witness after the event, the certainty expressed by the witness in that description and in making the subsequent identification, and, of course, the lapse of time between the original observation and the subsequent identification.

Id. at 684 (quoting Classen, 590 P.2d at 1203). 

The Oregon court in Lawson observed that although the intent in Classen had been to come up with an evidentiary standard, placing the burden on the defendant to prove that the eyewitness identification was suggestive was more appropriate to a due process analysis, in which the defendant bears the initial burden of proving a constitutional violation.  Id. at 689; see, e.g., Perry v. New Hampshire, 132 S. Ct. 716, 730 (2012) ("[T]he Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.").  In contrast, in evidentiary matters, it is the proponent of the evidence—in this case, the State—who bears the initial burden of establishing admissibility.  Id.  The problem with the second step of the Classen inquiry was that it allowed "trial courts applying the Classen factors to rely heavily on the eyewitnesses' self‑reports to establish the existence or nonexistence of suggestibility factors."  Lawson, 291 P.3d at 689.

Finding that the rule in Classen was inadequate to ensure that unreliable eyewitness evidence will be excluded, the Oregon Supreme Court devised a process that closely mirrors the Rules of Evidence.  Under the revised rule, "when a criminal defendant files a pretrial motion to exclude eyewitness identification evidence, the state as the proponent of the eyewitness identification must establish all preliminary facts necessary to establish admissibility of the eyewitness evidence."  Id. at 696-97.  If the testimony is challenged on the basis of lack of personal knowledge or that it is impermissible lay opinion, "those preliminary facts must include, at minimum, proof . . . that the proffered eyewitness has personal knowledge of the matters to which the witness will testify, and proof . . . that any identification is both rationally based on the witness's first‑hand perceptions and helpful to the trier of fact."  Id. at 697.

If the State satisfies its burden of proving that the eyewitness testimony is relevant and, thus, generally admissible, "the burden shifts to the defendant to establish . . . that, although the eyewitness evidence is otherwise admissible, the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence."  Id.  In the event that the defendant successfully makes such a showing, "the trial court can either exclude the identification, or fashion an appropriate intermediate remedy short of exclusion to cure the unfair prejudice or other dangers attending the use of that evidence. . . . [within] the sound exercise of the trial court's discretion."  Id.

While Lawson obviously applies only in Oregon, practitioners in all jurisdictions will want to review it for its compilation of the scientific research in the body of the opinion, as well as in an appendix.  Moreover, at least one court has identified the Supreme Court of Oregon decision in Lawson, as well as a recent decision by the Supreme Court of New Jersey, State v. Henderson, 27 A.3d 872 (N.J. 2011), as signals of a growing awareness that the current standard for evaluating eyewitness testimony set forth in Manson v. Brathwaite, 432 U.S. 98 (1977), is inconsistent with scientific knowledge.  See United States v. Greene, No. 11-4683, 2013 WL 28556, at *12 n.3 (4th Cir. Jan. 3, 2013); see also State v. Avery, 2013 WI 13, ¶ 114 n.4, 826 N.W.2d 60, 86 n.4 (Bradley, J., dissenting).

CRIMINAL LAW: Sentencing Guidelines—Ex Post Facto


The Lawletter Vol 27 No 11

Doug Plank, Senior Attorney, National Legal Research Group

The U.S. Supreme Court will once again look at the U.S. Sentencing Guidelines, this time to determine whether a sentence established in a Guidelines provision created after the commission of a crime may be applied to that crime without violating the Ex Post Facto Clause found in Article I, Section 9, Clause 3 of the Constitution.  The case, Peugh v. United States, 675 F.3d 736 (7th Cir. 2012), petition for cert. filed, 133 S. Ct. 594 (U.S. Nov. 9, 2012) (No. 12-62), set for argument (Feb. 26, 2013), arises from the conviction of a defendant on charges of bank fraud in the U.S. District Court for the Northern District of Illinois.  In sentencing the defendant to 70 months in prison, the court relied upon the 2009 version of the Guidelines that was in effect at the time of the conviction.  The defendant argued that he should have been sentenced under the 1998 Guidelines, which were in effect at the time of the commission of the crime, and that the application of those Guidelines would have resulted in a sentence range of between 37 and 46 months.  Although acknowledging that several other circuits have found that application of a postcrime version of a Guideline to impose a more severe sentence would violate the Ex Post Facto Clause, the Seventh Circuit affirmed the defendant’s conviction, finding that any possible ex post facto issue was vitiated because the Guidelines have been determined by the Supreme Court to be merely advisory.
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