evidence law

Parties in litigation have a duty under federal court rules not to destroy evidence. This obligation may be leading the National Security Agency to expand its phone call metadata program in order to preserve evidence as litigants like the American Civil Liberties Union and the Electronic Frontier Foundation sue to stop the surveillance of most of the phone calls made in America, the Wall Street Journal reports. No final decision has been made by the NSA yet, but governmental lawyers believe the obligation not to destroy evidence would require the practice of destroying phone records older than five years, WSJ reports. One source told the WSJ that, if the information was retained, it would be held only for the purpose of litigation. Deleting the data could mean that parties would lose their legal standing to pursue their cases.

The Asbury Park Press in New Jersey reports that the exoneration of 25 people across the country who were mistakenly linked to crimes through bitemark evidence has led to some questioning whether that type of evidence should ever be allowed in court. I covered one such case in upstate New York: Roy Brown's conviction of a woman's brutal murder on the basis of bitemark evidence was overturned.

"Critics says a key drawback of bite-mark analysis is its subjectivity, which lends itself to bias," the Press also reports. Other issues include that human skin "is not a reliable medium on which to record bite marks." the Press further reports.

Reuters reports on U.S. Attorney General Eric Holder's announcement this weekend that the Justice Department is going to expand LGBT rights. This includes recognizing the right of same-sex spouses not to testify against each other, to visit each other in federal prison, in how some debts are handled in federal bankruptcy proceedings and in eligibility for death benefits for survivors of law enforcement officers killed in the line of duty.

The Connecticut Supreme Court has taken up a case of a man convicted of murder in which an eyewitness identified him as the shooter even though she was 265 feet away in a fifth-floor apartment, the Associated Press reports. As part of the case, the Supreme Court is considering "whether Connecticut should join other states and abandon a balancing test created by the U.S. Supreme Court in 1977 and used by judges nationwide to determine whether to allow eyewitness identifications as evidence."

The balancing test is used after judges find that law enforcement was suggestive with witnesses identifying suspects, and then the judges must decide if the identifications are still admissible when weighing the eyewitnesses' certainty, the accuracy of their descriptions and other factors, the AP further reports.

There are two other cases pending before the Supreme Court on witness identification issues, the AP also reports.

Vermont is considering two pieces of legislation to seek the prevention of wrongful convictions. One bill would require blind lineups "in which the officer conducting them doesn’t know which participant is the suspect and therefore can’t influence the witness," The Rutland Herald reports. The other bill would call for taping police interogations in homicide and sexual-assault interrogations, the paper further reports.

The Legal Intelligencer's Gina Passarella (my former cubicle-mate!) reports on a Commonwealth Court ruling today that the Pennsylvania Senate must disclose legal bills as well as client names for the attorneys hired by the legislative chamber to represent former state Senator Robert J. Mellow and other Democratic caucus employees. "After already determining attorney-client privilege doesn’t protect from disclosure of client identities or descriptions of legal services provided, the Commonwealth Court has now found that information can’t be protected under the attorney work-product doctrine, grand jury secrecy rules or a criminal investigation exception," The Legal further reports.

New York Times reporter James Risen, who federal prosecutors are seeking to have identify his confidential sources in a criminal case against an alleged CIA leaker, has asked the U.S. Supreme Court to consider whether he is entitled to reporters privilege, Politico reports. At issue Risen's counsel argued in the petition is if journalists have a a qualified First Amendment privilege regarding confidential sources in criminal trials and if a common law privilege should be recognized for journalists under Federal Rule of Evidence 501.

A defendant convicted in a terrorism case is challenging the use of warrantless surveillaince in his case, The Washington Post reports: "Late Monday, [Mohamed Osman] Mohamud’s attorneys filed a 66-page motion in U.S. District Court in Portland, Ore., seeking discovery of information that they believe will aid in an eventual challenge to the constitutionality of the law that authorized the surveillance used in his case. At the very least, they say, Mohamud deserves a new trial because he was not informed that the government used the warrantless program in bringing its case the first time." 

The D.C. Circuit ruled Friday that President Obama's Justice Department can keep secret a memo that established "the legal basis for telephone companies to hand over customers’ calling records to the government without a subpoena or court order, even when there is no emergency," The New York Times reports. The memo was deemed to be subject to the executive branch's internal deliberations privilege.

ProPublica reports on how the criminal prosecution of Etan Patz's alleged killer might have been jeopardized because police did not tape the interrogation: the "interrogation room, it turns out, was fully equipped to do what a growing body of expert opinion has insisted be done in such moments: a full videotaping of a suspect’s interaction with detectives, from the start of an interrogation through any possible formal confession. Judges, defense lawyers, and even many prosecutors have come to see such comprehensive videotaping as the single most important factor in securing reliable confessions and preventing the wrongful convictions that can stem from false confessions. In New Jersey, where Hernandez was being questioned, taping interrogations in homicide cases has been required by law since 2005. The detectives, however, never turned the cameras on during what would become seven hours of interrogation. They remained off, in fact, until 2:57 that afternoon, when Hernandez was finally ready to formally confess."

ProPublica further reports that the accused killer's defense counsel is going to seek to have the confession ruled to be illegitimate.