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.

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

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.

November 20, 2012

Doug Plank, Senior Attorney, National Legal Research Group

The use of narcotics-detecting dogs is a well-established practice in American law enforcement operations.  Trained dogs are routinely used in an attempt to discover the presence of drugs in a variety of settings, including motor vehicle stops, investigative detentions of individuals in public places, and scans of luggage at airports, train stations, or bus terminals.  For the most part, the courts have sanctioned the use of trained dogs in the belief that their ability to detect drugs is so well developed and reliable that when they alert on a location, drugs will be discovered there.  However, some recent studies have placed that confidence in the performance of trained dogs into question.  Now, in a case that will be sure to have widespread repercussions for law enforcement, the U.S. Supreme Court has agreed to revisit the issue of the use of trained narcotics dogs in law enforcement.

In its first decision addressing searches by dogs, United States v. Place, 462 U.S. 696, 707 (1983), the Supreme Court held that the use of a "well-trained narcotics detection dog" to detect the odor of narcotics in luggage at an airport was not a search for purposes of the Fourth Amendment, and the Court strongly implied that the subsequent alert by the dog on the luggage—indicating that the dog did indeed smell narcotics—was by itself a sufficient basis to determine that there was probable cause to justify a search warrant to search the luggage.  In reaching that conclusion, the Court determined that the dog sniff was "sui generis" in investigative procedures, meaning that the sniff was "much less intrusive than a typical search," while at the same time reliably informative regarding the contents of the luggage.  Id. The Court ultimately held in Place, however, that despite being supported by reasonable suspicion, the detention of the luggage for 90 minutes while awaiting the arrival of the detection dog was too unreasonable to be justified as an investigative detention under Terry v. Ohio, 392 U.S 1 (1968), and therefore invalidated all that followed.  The Court thus found that the evidence discovered in the luggage had to be suppressed.

Subsequently, in Illinois v. Caballes, 543 U.S. 405 (2005), the Court held that the use of a narcotics-detection dog to sniff around the exterior of a motorist's vehicle during an investigative stop was not a search, again because of the lack of a cognizable infringement on the motorist's Fourth Amendment rights.  After the dog had alerted on the trunk of the vehicle, the police searched the trunk and discovered narcotics.  In reinstating the ruling of the trial court that the search of the trunk was supported by probable cause, the Supreme Court necessarily concluded that the alert by the dog was itself enough to provide probable cause to search.

Justice Souter wrote a dissenting opinion in Caballes that questioned the reliability of narcotics dogs and thus questioned the underlying justification for the Place rule.  Souter argued that there was little reason to believe that a special rule should be applied to dog sniffs, as the unique reliability of trained dogs was simply not shown by empirical findings:

At the heart both of Place and the Court's opinion today is the proposition that sniffs by a trained dog are sui generis because a reaction by the dog in going alert is a response to nothing but the presence of contraband. . . .

The infallible dog, however, is a creature of legal fiction. Although the Supreme Court of Illinois did not get into the sniffing averages of drug dogs, their supposed infallibility is belied by judicial opinions describing well‑trained animals sniffing and alerting with less than perfect accuracy, whether owing to errors by their handlers, the limitations of the dogs themselves, or even the pervasive contamination of currency by cocaine.