Natty Shafer Law

Utah lawyer for criminal and immigration cases

Monthly Archives: February 2013


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Your Privacy Rights Are in the Control of a Canine

The Supreme Court issued a ruling yesterday that is disappointing for anyone concerned with civil rights. In Florida v. Harris, the Court unanimously overruled the Florida Supreme Court and held that a “dog sniff” is enough to establish probable cause for a police officer to search your vehicle.

Last summer, I wrote about a case that has yet to be decided, Florida v. Jardines, that also challenges the validity of drug-sniffing dogs. The problem with drug-sniffing dogs is that they can be influenced by their human handlers, and the prejudices and preconceptions of dog handlers should not be enough to establish probable cause. The latter case could still be decided differently since the Court has traditionally been more protective of rights when a house is involved, but its decision in Harris indicates a reluctance to second guess the use of drug-sniffing dogs, despite a lack of science establishing their reliability.

In this case, the dog was wrong that the defendant, Clayton Harris, had any of the narcotics that it was trained to uncover. Mr. Harris was pulled over twice, two months apart, and the same dog and handler walked around his car. Both times the dog alerted. The first time, Mr. Harris had ingredients and equipment for making methamphetamine, but the dog was not trained to find those ingredients. The second time, he had nothing illegal at all.

From a civil rights perspective, the problem is that most police departments do not keep records of stops involving drug-sniffing dogs. For people who are truly innocent, this means their lives can be disrupted while an officer tears apart their car looking for the contraband that will never be found. The innocent person may or may not receive an apology from the officer, but that will be cold comfort for anyone who missed a crucial appointment or had embarrassing (but not illegal) personal belongings uncovered while the officer searched. For the guilty, it shifts the burden of proof from the prosecution to the defense. A defendant must show that the dog and the handler are unreliable, and if police departments do not keep records or a dog’s mistakes, this will be nearly impossible.


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Juries Rarely Hear about Eyewitness Unreliability

There is a pretty big problem with alerting a jury about how unreliable eyewitness testimony is: the expense of hiring an expert witness. A defendant could agree with everything a prosecutor asserts except the identity of the perpetrator, but the defendant is going to need someone to testify about eyewitness unreliability.

Anything a lawyer says during opening or closing arguments needs to be supported at some point during the trial; a lawyer cannot just assert during closing arguments that eyewitnesses are extremely unreliable. To allow the jury to hear that information, a lawyer needs a witness, and it has to be an “expert witness.” The Utah Rules of Evidence, which are based on the federal rules, say that any witness testifying on scientific or specialized knowledge, and not on “the witnesses’s perception” (what they personally saw or heard), must be certified as an expert.

Expert witnesses are paid for their time, both in preparing for trial and they day of the trial. If they have to travel, it is normal to pay for travel expenses and food. How much an expert is paid depends a bit on their specialty. Rare specialties and specialties in which a person could be making a pretty good salary outside of court are paid more. Experts on eyewitness unreliability would fall into the “rare” category and are paid accordingly.

This has the compound effect of compromising their integrity in the minds of the jurors. When experts testify, they are routinely asked about the payment for testifying. Many are paid more than $100 an hour, and the jury may conclude the expert will say anything for that much money. Many lawyers decide it is not worth the price to tell the jury, especially if there are other arguments in favor of a not guilty verdict, and other defendants cannot afford the price regardless.


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It Didn’t Happen That Way

If there were a piece of scientific evidence that had a 30% failure rate, we would not let it into court. Polygraphs, which have been shown to be accurate between 90 and 95% of the time, are inadmissible. The justice system has decided that juries will give too much weight to the information. Yet eyewitness testimony, in study after study, has shown to have high error rates, but is not only let into court, it is frequently the determining factor in a jury’s decision.

The rules of evidence are quite complicated. The central rule is that the evidence has to be relevant. After that, most rules are designed to keep juries from letting the wrong factors determine their decision. In other words, the evidence is relevant, but due to human nature, a jury either will not hear it at all or a judge must carefully limit the evidence in order to prevent that particular piece of evidence from being the only thing a jury considers.

Studies have shown there is no correlation between how confident a witness is and how accurate their memory actually is. But a confident witnesses is a more believable witness, so prosecutors encourage witnesses to state a high degree of certainty to a jury.

Most people overestimate their own ability to remember things, and likewise overestimate other people’s memories. False memories tend to accord to our philosophy and world view. As a recent slate article put it, “The scary part is that your memories have already been altered. Much of what you recall about your life never happened, or it happened in a very different way. Sometimes our false memories have done terrible things. They have sent innocent people to jail.”


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Prosecutorial Discretion, Part 2: Plea Bargaining in the Modern Justice System

Part 1: Introduction

Justice is unbalanced.
Photo by “Frachet“

The modern day practice of prosecutors is to charge a defendant with every charge that could apply, and then drop several charges during the plea bargaining phase. It was not always so. Until about 1970, plea bargaining was a rare occurrence in the United States. When people were charged with crimes, prosecutors were expected to prove them before a jury. There were exceptions, of course, but sooner or later they had to go before a jury and make a case. This kept them in check. The more crimes charged, the more preparation to be done for a trial. Including weaker charges would allow defense lawyers to focus on those charges and suggest they were overzealous. Prosecutors probably care a little too deeply about their win/loss record for each charge in their jury trials. (They look at it like baseball stats, in a way.)

In 1970, the Supreme Court gave its explicit blessing to plea bargaining. Article III of the Constitution provides, “The trial of all crimes, except in cases of impeachment, shall be by jury.” Many legal experts were of the opinion that plea bargaining was unconstitutional. In Brady v. United States the Court said that plea bargaining is acceptable as long as the pleas are “knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” The number of cases resolved through plea bargaining jumped and kept on growing so that few cases make it to trial now. Today, prosecutors regularly agree to drop one or more charges in exchange for a plea, and judges have no problem with this.

This period of plea bargaining has also coincided with a systematic increase in prison or jail sentences. Legislators have decided that they want to be “tough on crime” so that sentences are about three times as long as they were fifty years ago. Combine this with an explosion in the number of crimes that are on the books and a person can be facing a very long sentence, indeed. As a result, many defendants feel coerced into taking a plea. Some prosecutors threaten to bring further charges or prosecute friends and family, if a defendant does not take a plea offer.