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Friday, April 24, 2015

Traffic Tickets and Fishing Expeditions


fishing expedition
noun, Informal.
1.  legal proceeding mainly for the purpose of interrogating an adversary, or of examining his or her property and documents, in order to gain useful information.
2.any inquiry carried on without any clearly defined plan or purpose in the hope of discovering useful information.

Nearly everyone has received a traffic ticket. Almost everyone has gone fishing. Are the two mutually exclusive? Not in criminal law.

Police officers give hundreds of traffic tickets. In North Carolina, State Troopers give thousands. What police agencies cannot do during a traffic stop is go on a "fishing expedition." An officer can issue a traffic ticket. However, once that ticket is issued, an officer may not continue the contact with the driver or passenger to investigate issues that were unrelated to the initial reason for the stop.

The US Supreme Court issued a substantial ruling this week in Rodriguez v. United States.

In Rodriguez, the defendant was initially stopped by a police officer for veering onto the shoulder of a state highway in Nebraska. After the officer did a license and warrant check on both the driver and the passenger came back clean, the officer issued a warning ticket to the driver. The officer then asked the driver for permission to allow his "drug dog" sniff around the vehicle. The driver did not consent to this search by the dog. Seven or eight minutes later a second officer arrived, dog sniff search was conducted and methamphetamine was discovered. UNC School of government wrote an excellent summary of the case here.

The Court ultimately held that an officer cannot extend a traffic stop beyond the time necessary to complete the "mission" of the stop; specifically, the time to "address the traffic violation that warranted the stop.. and attend to related safety concerns." A police officer's authority to detain a driver and his vehicle ends when the issues tied to the traffic infraction are completed or reasonably should have been completed. An officer cannot, as dictionary.com correctly defines, carry on a "fishing expedition" in the hope of discovering information.

Police officers will continue to use traffic stops as gateways to conduct full investigations.  However,  this important Supreme Court ruling will require police officers to justify their continued contact. True transparency will take place when all officers are equipped with cameras/voice recorders. Only then will we know the true extent of the expedition.

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Monday, April 20, 2015

Expert Testimony- An Alarming New Report Showing How Flawed It Really Is

The North Carolina Crime Lab is not the only agency that failed. In a newly released report , the Justice Department and the FBI acknowledged that examiners in an elite FBI forensic unit gave flawed testimony in almost all trials they testified for the prosecution over a twenty year period. Specifically, 26 of 28 employees overstated hair comparison results that favored prosecutors in more than 95 percent of trials. These cases included 32 defendants that were sentenced to death. 14 of the 32 have already been executed or have died in prison. As a result, the Justice Department and the FBI are now conducting one of the largest post conviction reviews of cases that fall within this period. You can read the article here.

When I was a prosecutor, calling my criminalist as my expert witness in a trial was one of the one less demanding tasks. For me, before commencing testimony of a criminologist was like pressing play on a DVD player. After the criminologist entered the courtroom carrying their briefcase, sat down at the witness stand and started organizing their paperwork, I "pressed play" beginning my robot request of their background, to provide background information to the jury, their education, their degrees, certifications and all the training they received from the day they started their career. Then we would explore the testing they conducted. At the end, I would ask for a conclusion.

At this point, jurors just wanted to hear the result after listening mind numbing data, sometimes for hours. They may not understand the science, flawed as it can be and which has become more confusing as technology advances, and if they don't, they cannot relate to the conclusion.

To convey that they do understand, jurors believe criminalist testimony. While they don't understand it, having listened to all of the 'experts' education and experience, they generally conclude "this person clearly knows what he/she is doing." They also believe the sworn expert is honest and not motivated to manage results. Jurors typically have not had bad "life experiences" with expert witnesses in a courtroom, unlike many which have had such bad experiences, outside the courtroom, with law enforcement where they are aware of victims of unfavorable treatment, witnesses to unfavorable treatment or heard stories on the news. Jurors see the criminologist as an impartial authority at work in "a laboratory", going to work each day to do their job.

The problem is they do make errors. They do make mistakes. Thus, reviews like this are absolutely necessary. However, they can't provide relief to the fourteen who were convicted and subsequently executed or died in prison.


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