Trial Series: Challenging Hearsay with Neuroscience

Federal Rule of Evidence 803 sets out three hearsay exceptions for spontaneous events: present sense impression, excited utterance, and then-existing condition. The rationale for these exceptions is that the spontaneous statements are reliable because a person is unlikely to fabricate lies (which presumably take deliberate reflection) while her mind is preoccupied with the stress of an exciting event.

But for lots of complicated reasons explained here (click the link for a primer on peritraumatic dissociation and elevated cortisol levels in the amygdala), that’s not how the brain works. First, “it's not true that people can't make up a lie in a short period of time. Most lies in fact are spontaneous.” Second, the emotional stress attending a crime can fragment and corrupt memories. The assumptions behind the spontaneous event hearsay exceptions are exactly backward. Spontaneity does not enhance reliability; it may compromise it.

Courts are beginning to recognize the fallacy of the rationale behind the spontaneity hearsay exceptions. “As with much of the folk psychology of evidence, it is difficult to take this rationale entirely seriously, since people are entirely capable of spontaneous lies in emotional circumstances…It is time the law began paying attention to such studies.” So, if the government’s case relies on a spontaneity exception, ask the court to view that evidence in light of the science.

-- Kirk

Evidence suppressed: no reasonable suspicion for traffic stop

We all know that is a traffic infraction to turn without properly signalling in advance, but is it also a traffic infraction to signal in advance but then not turn? The answer is no, at least according to a recent decision in the District of Kansas .

In United States v. Perez-Madrigal, the officer stopped the defendant for that exact reason. He claimed at suppression hearing that he had done the same thing in the past and since nobody objected he assumed it was fine. The government also claimed that the stop fell under the reasonable mistake-of-law doctrine. However, the government was unable to point to a case or statute that supported such a reasonable belief.

The government also claimed that the exclusionary rule should not apply in this context. Not so says the district court. The officer testified that he was trained that this type of stop was acceptable and had performed such a stop multiple times. So, if the exclusionary rule exists to deter officer conduct - "the societal benefits of deterring repeated instances of unlawful traffic stops outweigh the substantial social costs of suppressing the evidence seized as a result of the traffic stop."

Kudos to Branden Bell of the FPD for the suppression win. But the opinion also has some other, blog worthy issues in it. Stay tuned to find out what.....

City misdemeanors do not trigger federal gun prohibition

So sayeth the Tenth Circuit this week in United States v. Pauler:

The term "misdemeanor crime of domestic violence" is defined in the pertinent statute as "a misdemeanor under Federal, State, or Tribal law" that "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by . . . a person similarly situated to a spouse, parent, or guardian of the victim." 18 U.S.C. § 921(a)(33)(A). The district court denied Defendant’s motion to dismiss the indictment for failure to state an offense, holding that Defendant violated § 922(g)(9) because he possessed a firearm in 2014 after having been convicted in 2009 of violating a Wichita, Kansas municipal domestic battery ordinance by punching his girlfriend. The sole issue before us in this appeal is whether a misdemeanor violation of a municipal ordinance qualifies as a "misdemeanor under . . . State . . . law" when viewed in the context of a statutory scheme that clearly and consistently differentiates between state and local governments and between state statutes and municipal ordinances. Applying well-established principles of statutory interpretation, we hold that it does not, and we accordingly reverse and remand with instructions for the district court to vacate Defendant’s federal conviction.

Better sentences with open pleas.

Taking up where the last post left off . . . plea agreements and appellate waivers. The prosecution often insists on broad-ranging appellate waivers when the parties enter a plea agreement. That is one reason our default position should be open (or blind) pleas rather than plea agreements. This default position is even more compelling since AG Sessions has directed the USAOs to seek the most serious punishment available. Not much room for meaningful negotiation there.

Another pretty good reason is that our clients receive lower sentences with open pleas. The numbers bear this out. The U.S. Sentencing Commission, for all of its other faults, is an excellent source of sentencing data. An analysis of the raw data shows:

     Open pleas accounted for almost a quarter of all federal case resolutions in 2015.

     Overall, opens pleas resulted in lower sentences.

     Plea agreements resulted in higher sentences.

The raw data comes from the Sentencing Commission, but the analyses is provided by  Alan Ellis, Esq., and Mark H. Allenburg, in the Westlaw Journal, White Collar Crime: Expert Analysis,Vol. 31, Issue 7, March 2017. This article has more details on fraud and tax sentences, as well as helpful graphs like this one. The raw data should be available to analyze other specific offenses, as well.   

--Melody

Supreme Court update: Does a guilty plea prevent an attack on the constitutionality of the statute of conviction?

One of the few criminal related cases set for argument on the October docket is Class v. United States, a case that asks whether a guilty plea prevents the defendant from attacking the constitutionality of the statute of conviction. Or, as the brief for Mr. Class states the issue:

Whether a guilty plea inherently waives defendant’s right to challenge the constitutionality of his statute of conviction. 

Mr. Class was convicted of carrying or having a gun readily accessible on the Capitol grounds. He initially litigated the constitutionality of the statute in district court, without success. He eventually entered a plea agreement that waived his right to appeal the sentence and his right to collaterally attack his conviction or sentence. He appealed to the D.C. Circuit which affirmed his conviction based on the plea waiver. The D.C. Circuit noted the appeal waiver did not contain an "explicit waiver of appeal rights . . . as to alleged errors in the indictment or in proceedings before the sentencing." However, the court held that the plea itself inherently waived Mr. Class' right to attack the constitutionality of the statute.

In his brief, Mr. Class argues that prior Supreme Court cases such as Blackledge v. Perry and Menna v. New York answer the question as to whether the plea inherently waives such a right - and the answer is no. Blackledge permitted such an attack after conviction in the double jeopardy realm and Menna allowed such an attack in a vindictive prosecution claim. If permitted there, why should the defendant be limited when the attack is for unconstitutionality of the statute of conviction?

With all of the recent discussion of plea waivers we had here, and here this case is a good reminder of what rights are lost when a guilty plea is entered. It will be interesting to keep an eye on the outcome of this case and see to what extent a plea really waives appellate rights. Plus it is a gun rights case so we know a separate opinion from Justice Thomas is coming.

Trial Season

Last Friday, Attorney General Jeff Sessions issued a memo establishing  new and more strident prosecution policies. The highlights (or low points) include:

• Prosecutors should charge and prove the "most serious, readily provable offense." 

• Most serious offenses are those that carry the "most substantial guidelines sentence, including mandatory minimum sentences."

• Variance from this policy requires supervisory approval and must be "documented in the file."

• Recommendations for guideline variance or departures also require supervisory approval and documentation. 

• Former AG Eric Holder's  2013 and 2014 memos were expressly rescinded; these encouraged conscientious application of harsher charging and sentencing decisions and restricted the use of certain mandatory minimum sentences (e.g., 851s).

The memo is after the jump.

Mr. Holder understandably deemed it an "unwise and ill-informed" reversal. But some argue there is room for a more hopeful reading. Local prosecutors are to exercise discretion, "with the goal of achieving just and consistent results" and "should in all cases seek a reasonable sentence under the factors in 18 USC sec. 3553." Reasonable prosecutors may continue to prosecute reasonably.  

Mr. Sessions acknowledged as much in his recent remarks to a law enforcement audience:

And I trust our prosecutors in the field to make good judgements. They deserve to be unhandcuffed and not micro-managed from Washington. Rather, they must be permitted to apply the law to the facts of each investigation. . . .  I have given our prosecutors discretion to avoid sentences that would result in an injustice.

Reason for hope? It is certainly worth invoking Mr. Sessions' face-value statements in negotiations.  

For now, though, trials may be more common. This could be a good thing; in the last couple of years, as part of some retroactive litigation,  we have reviewed far too many plea agreements (with appellate waivers) that resulted in life or near-life sentences, for little or nothing in return. Can't really do much worse at trial. Maybe this is a chance to change our approach. As Rahm Emanuel observed, crisis is opportunity: "You never let a serious crisis go to waste. And what I mean by that it's an opportunity to do things you think you could not do before." 

In the coming  months, this blog will devote some space to trials: evidence, tactics, training.  Please give us your feedback, comments are welcome either on the blog or by email. Look for some guest bloggers. And if you have ideas to share, please let us know. 

-- Melody

Sentencing news

Where do you get your sentencing news? The United States Sentencing Commission has a new resource: Case Law Quarterly. As the Commission describes it, "Case Law Quarterly provides brief summaries of select appellate court decisions issued each quarter of the year that involve the guidelines and other aspects of federal sentencing."

At a slim six pages, the first issue is just the right size to print and read on the airplane or in the waiting room of the doctor's office. My only complaint: The cases are organized by circuit rather than by subject matter. But even then, it's a nice compilation of guidelines and other sentencing cases, and you can see at a glance (in the first sentence of each entry) which cases resulted in sentencing reversals.

What does the government need to establish importation under USSG § 2D1.1(b)(5)?

One of many enhancements under USSG 2D1.1 involves a two level bump for amphetamine or methamphetamine offenses that "involved the importation" of the drugs or certain chemicals. USSG § 2D1.1(b)(5).

But what does the government need to prove to establish the offense involved importation? Does the government have to establish that the defendant knew the drugs at issue were imported? A recent Ninth Circuit case may create a circuit split on this question. In United States v. Job the Ninth appears to reject a strict liability rule from a Fifth Circuit decision, United States v. Serfass, which held "that the enhancement under § 2D1.1(b)(5) applies irrespective of whether the defendant knew that the possessed methamphetamine had been unlawfully imported."

The  Job court bases their decision on the fact that the district court "made no determinations about the scope of the jointly undertaken criminal activity as required by the Sentencing Guidelines." So the question as to what exactly the government needs to prove seems to be an open question, even in the Ninth Circuit. One question is clear - this enhancement needs to be objected to, especially when the government simply puts on evidence that the drugs were imported without additional proof.

Immigration consequences? Check once; check twice; check again

A Jamaican citizen and lawful permanent US resident was charged in federal court with trafficking in counterfeit goods.

His appointed criminal-defense lawyer immediately realized the need to research the deportation consequences of any plea. Counsel dutifully contacted an immigration lawyer. That lawyer recommended a plea under a subsection of the criminal-counterfeiting statute that she believed would not expose the client to deportation. The defendant entered the plea and was sentenced to prison for 364 days.

But the lawyers both relied on the wrong version of the statute.

The version that applied to the defendant subjected him to mandatory deportation. As a result, the defendant spent more time in ICE custody than he did serving his prison sentence. The Fourth Circuit finally granted him habeas relief on ineffective-assistance-of-counsel grounds, in an opinion issued last month.

Lesson learned: Check immigration consequences. Check again. Check again.

It was my understanding that there would be no math . . .

I like, many of you went to law school to avoid doing math. The bad news is there is some very helpful information available that might require some math. Blame the Sentencing Commission. The Commission tracks and posts statistics online regarding the sentences involved in thousands of cases. And you can use that data to, for example, make an argument for a less than guideline sentence where certain courts generally follow the guidelines. After all, if the statistics support that more judges are giving lower than guideline sentences, some judges who feel bound by the guidelines may feel more comfortable giving a less than guideline sentence.

We suggest you follow the link and spend some time getting comfortable with the information and think a little how you can use those statistics to get a better plea or to support a sentencing memorandum for a particular client. Maybe math will become your friend!

What to expect when you're expecting a prison term

It's that time of year again. The peonies are about to bloom, the ornate box turtle is out of hibernation, and your clients are headed to prison.

Don't let them go unprepared.

This Thursday, May 4, 2017, from 3 p.m. to 5 p.m. at the Kansas City, Missouri, courthouse, US Probation will be holding its quarterly orientation program for people facing federal prison time. Family and counsel are encouraged to attend. Participants may join by videoconference from Wichita and Topeka.

As we blogged last year, among other things, attendees will learn (or be reminded of):

• What personal business to take care of before going to prison (utility bills, child support, student loans, pending charges & detainers);
• How to self surrender;
• What to take (and what not to take) to prison;
• What programs are available in prison (educational, vocational, religious, mental health, medical);
• What to expect with respect to visitation, phone calls, email, etc.; and
• How federal prisons help prepare clients for release.

At one program last year, a young professional couple who met in a halfway house after each had spent many years in prison spoke about their experiences in an effort to allay the fears of incoming clients and their families. Their stories were encouraging, and their light-at-the-end-of-the-tunnel message was punctuated by the fact that they were celebrating the recent purchase of their first home.

Questions? Call US Probation Officer Sara Valdez Hoffer at 913-735-2428.