This month the Arizona Court of Appeals rejected the argument that a judge does not have the discretion to hold a pretrial hearing on the reliability of scientific evidence. Since January 1, 2012 when Arizona adopted the Federal Daubert standard for safeguarding against junk science, several prosecutorial agencies have tried to persuade trial courts that things were “business as usual” despite the new rules of evidence.
However, the February 5, 2013 ruling from Division One of the Arizona Court of Appeals in Arizona State Hospital v. Klein, simply affirms the obvious: the trial court is a gatekeeper of evidence. The jury is only supposed to see evidence that was the product of actual science. This ruling is likely just the first of several forthcoming decisions that will define how Arizona will apply the Daubert standard for reliability of scientific evidence.
To read the case click here
Daubert is the name of an United States Supreme Court case regarding the admissibility of scientific evidence: Daubert v. Merrell Dow Pharmaceuticals, Inc. While the case was decided in 1993, it’s holdings are new to Arizona. Despite some arguments to the contrary by a few luddites, Arizona adopted it on January 1, 2012. Arizona’s change to a Daubert standard for challenging scientific evidence may be the most significant event our court have ever encountered. Currently, there are 31 other states that have adopted the Daubert standard.
At its core, the Daubert standard is the United States Supreme Court’s interpretation of Rule 702 of the Federal Rules of Evidence for expert testimony. When Arizona amended its companion Rule to essentially conform with the Federal version, Daubert became the guiding case for Arizona courts to rely upon for decisions on the admissibility of scientific evidence. As with all legal rulings, there are hundreds of subsequent court interpretations of Daubert, by hundreds of other courts, each providing their own view of what Daubert means in a given set of facts.
What Does Daubert Do?
The Daubert decision created criteria for trial judges to use when determining the admissibility of an expert witnesses’ testimony. The standard requires a judge to “vet” an expert’s scientific testimony before it is presented to a jury. A so called expert’s opinion must be the product of a scientific methodology to be admissible.
- For a more in depth Daubert discussion you can click here.
What Did Daubert Change In Arizona?
Prior to January 1, 2012 many Arizona courts would allow an expert to tell a jury an opinion as long as they also said the magic words – my opinion is “generally accepted” in the scientific community. Without a judge screening the way the expert came to her conclusion (i.e. whether the conclusion actually the product of reliable science) juries have been unknowingly and repeatedly subjected to junk science. The only effective safeguards were hopefully, the defense attorney was skilled enough to reveal the opinions were lacking scientific validity; And the accused had the funds to hire their own expert. Both of the circumstances are unlikely for most cases.
In light of the above, is it really so surprising that just about every month you see another news story about a person who was wrongfully convicted at trial based on a so called expert testimony, and now they have been exonerated by advancements in DNA testing?
Why Do We Care?
Daubert challenges are the primary defense against:
- The Crime Laboratory person that thinks everyone is guilty so why bother to take the time to do the test correctly;
- The “hired gun” expert;
- The person who truly believes they are an expert but are incompetent;
Police crime laboratories have been the primary culprits of presenting junk science to juries. Skeptical of this statement? Think this opinion may not be the product of a reliable methodology? Well, then read the 2009 Report on Forensic Science delivered to the United States Congress by the National Academy of Science. The Report chronicles the epidemic of police crime labs presenting misleading testimony and scientifically unreliable conclusions.
We care that Daubert has come to Arizona because the standards set forth by the Supreme Court for vetting scientific evidence are meant to prevent exactly what many crime labs have been doing for years – providing juries with opinions and test results that are not the product of real science.
Here is a well written explanation of the Supreme Court’s decision on S.B. 1070 – The Arizona Immigration Statute written by Amy Howe of the SCOTUS Blog:
With the recent passage of Proposition 203, voters made Arizona the 15th state (along with the District of Columbia) to legalize medical marijuana. The vote was a close one, with just 841,346 in favor and 837,005 opposed, just passing the 50% mark. The count from vote on election day, Nov. 2, was so close that the result wasn’t declared until nearly 2 weeks later.
Of course, Proposition 203 does not give free rein to hopeful or would-be marijuana users in the state. The new measure makes it lawful for patients with certain “chronic or debilitating” diseases or conditions, such as cancer, AIDS, or hepatitis C, to purchase up to two and a half ounces of marijuana every two weeks. In certain situations they may even be allowed to grow their own marijuana plants. A regulatory scheme will now apply to this category of marijuana use, bringing it beyond what had been strictly the realm of criminal law. To meet the medical use criteria, patients will have to receive a recommendation from their doctor and will also need to register with the Arizona Department of Health Services. Distribution will be through medical marijuana dispensaries. Initially, Arizona will permit up to 124 such dispensaries.
The campaign in favour of Proposition 203 was run by Arizona Medical Marijuana Policy Project. It was opposed by all of Arizona’s sheriffs and county prosecutors, Governor Brewer, Arizona Attorney General Terry Goddard along with other politicians.
If you have a specific question, please contact The Koplow Law Firm Online or by phone at 602.494.3444.
The Arizona Supreme Court’s holding in State v. Geeslin was a rare event. In most circumstances, when a court makes a mistake, a formal objection to the court’s ruling must be found in the record. Put another way: if you fail to object to a court’s decision, you waive your right to appeal the ruling. However, as shown in Geeslin, there are some exceptions.
In Geeslin, the defendant was arrested for putting shoplifted goods in a stolen vehicle and was charged for Theft of a Means of Transportation (car theft.) The car theft charge may also have what is known as “a lesser included” charge of “Unlawful Use of a Means of Transportation” (joy riding.) Thus, if you take the car and intend to keep it, then it is considered car theft. If you take the car, without permission, but intend to return it is considered an “unlawful use” of the car. “Unlawful use” of the car is a lower level felony than “Theft” of the car. It is a common defense for someone accused of “theft” of a car to claim they intended to return it (i.e. “it was only a joyride”).
Here, the defendant’s attorney asked for a specific jury instruction regarding the charge of “Unlawful Use of Means of Transportation.” The judge denied the request and the attorney objected. However, something unusual occurred: the “record on appeal did not contain Geeslin’s requested instruction.” Thus, The Arizona Court of Appeals presumed that the missing record supported the trial court’s decision and denied the appeal.
The Arizona Supreme Court reversed the decision. The Court stated that fairness and due process required the trial judge to instruct the jurors of all offenses “necessarily included” in the offense charged. The court held that the jury must know exactly what is included in the charge in order to successfully fulfill their roles as finders of fact.
Although seeming insignificant at times, proper objections presented by an attorney may be critical to winning a case – even if it is on appeal. Here, the Defendant was extremely fortunate that the Court “overlooked” the absence of a formal record. While sometimes a court will resort to looking at what’s “fair,” those cases are few and far between.
If you have a specific question, please contact The Koplow Law Firm Online or by phone at 602.494.3444.
In my experience most prosecutors play by the rules. They know their ethical duties and abide by them. However, I, along with many of my colleagues, have observed a growing number of prosecutors that have no problem stepping over the ethics line. The issue seems more to do with ignorance than intent.
For the most part, the public is unaware of this growing problem. It is only when the misconduct is so outrageous and the victim has the means to fight it does the misconduct make its way to the public’s attention (e.g. the 2006 Duke University lacrosse case.) When prosecutorial misconduct truly does occur, only a small percentage of prosecutors are disciplined for their actions. Apparently, a new report from the Northern California Innocence Project at Santa Clara University School of Law demonstrates this problem is not isolated to Arizona.
The Report examined more than 4,000 cases where prosecutorial misconduct was alleged over a twelve year period. The Report found that courts only made prosecutorial misconduct a finding in approximately 700 of 4,000 of the cases. In those 700 cases, only six (6) prosecutors were charged with misconduct. Obviously, as a former prosecutor, I understand that when someone is convicted of a crime, it may result in a frivolous claim; still these numbers are still extraordinary.
In addition, this report determined that judges often failed to report prosecutorial misconduct to the state bar despite their legal obligation to notify the bar of such behavior. Although over sixty prosecutors (60) committed misconduct more than once, and some more than five times, the majority of those prosecutors were never publicly disciplined.
In response to the report, the State Bar of California, issued the following written statement:
“Prosecutorial misconduct as indicated in the Innocence Project report does not always equate with attorney misconduct for disciplinary purposes. The State Bar believes that it is disciplining criminal prosecutors where appropriate and where the misconduct was willful and can be established by clear and convincing evidence.”
If you have a specific legal question regarding prosecutorial misconduct in an Arizona Criminal Case, please contact The Koplow Law Firm at 602-494-3444.
On July 28, 2010 the federal district court issued an injunction to part of the highly publicized and talked about immigration bill in Arizona, known through-out the country as SB 1070.
Practically speaking, this means that part of the bill is not enforceable until the appellate courts determine its constitutionality. Judge Susan Bolton had to read the bill piece by piece and line by line using the appropriate legal standards, statutes, and case law, to determine which provisions of the bill were constitutional, and which were not.
When the United States brought the lawsuit against the state of Arizona, their main legal argument was that Arizona could not make immigration law, because that is a power given only to the Federal Government. Arizona argued that this bill added to already existing Arizona statutes and that Arizona was not stepping on or over, the current federal laws. The legal principal at issue is known as Federal Preemption.
For the most part, the decision of the court at this point was to allow Arizona to continue to enforce some parts of the bill. The sections of the law left in place include:
- Making it a crime to knowingly or intentionally employ an illegal alien
- Requiring employers to check for the immigration eligibility of an employee
- Making it a crime to smuggle human being across the border
- Making it a crime to stop a car to pick up day laborers if it interrupts the normal flow of traffic
- Impounding vehicles that were used for transportation or harboring people who are unlawfully in the United States
- Allowing Arizona to create the Gang and Immigration Intelligence Team Enforcement Mission Fund
This order also prevents Arizona law enforcement from enforcing some of the bill. The sections of the law struck down by the court include:
- Making it a crime for persons not to carry their registration papers
- Having the status of a person’s immigration checked before releasing them from custody
- Allowing a warrantless arrest based on probable cause of a person who is believed to have committed a crime that would subject them to removal from the United States
To read the entire decision, click on here.
The Arizona Supreme Court also addressed the federal court’s decision on SB 1070. Soon after the federal court’s ruling the Arizona Supreme Court released an Administrative Order regarding the bill. The Order made changes to procedures and forms used when an illegal alien is arrested, or sentenced. For example, if a criminal defendant is sentenced, including even to pay a fine, and it has been found that the defendant is an alien who is unlawfully present in the United States, the judge must include this fact in the sentencing report. Then the clerk of the court must submit that report to the Immigration and Customs Enforcement Office.
The form used at the time of arrest will be modified to include a place for the law enforcement agent to ask the person in custody for his place of birth, country of citizenship, and amount of time present in the United States. The form also includes a place for the law enforcement agent to spell out what the reasonable suspicion was that prompted the law enforcement agent to make the arrest, and a reminder to the agent to check with Federal Immigration Agencies to verify the immigration status of the defendant.
If you have a question about a specific legal issue, please contact The Koplow Law Firm.
Here is a round up of the best criminal defense blog posts for July, 2010. I always look for posts that provide either strong opinion, insight or novel information. While July had a great selection to choose from, here are the top five:
- The Hatred of Being In Trial – published by Brian Tannebaum a Miami criminal defense attorney. He provides his view of doing trial work and being a criminal defense attorney.
- Blagojevich Recap (Part II) – published by Tom Whithers a Georgia criminal defense attorney. Mr. Withers presents a thourough and detailed recap of the Blagojevich trial.
- Only Teletubbies Live In The Comfort Zone – published by Scott Greenfield a New York criminal defense attorney. Mr. Greenfield discusses how lawyers should be using social media.
- A New Approach To Felony Murder And A New Template To Attack Precedent In Georgia – published by Scott Key’s Geogia Crimial criminal appeals attorney in Georgia.
- On Jumping Without A Parachute – published by the great Gerry Spence. Gerry discusses what is next for him and shares his philosophy and wisdom.
If you have written a post, or have read one that you think may qualify for the Best In Criminal Defense, then please let me know.
At the core of the United States Constitution is the principle of Due Process. In its most basic form, this principle provides that the government must respect all of the legal rights owed to the people. One of those legal rights is the guarantee of a fair trial to a person accused of a crime.A fair trial includes preventing the State from unfair or suggestive identifications which would direct a witness to make a false identification. The most common situation where these protections are needed is a “line-up.” This is a procedure where a witness tries to identify someone that may have committed a crime.
In State v. Garcia, a man appealed his armed robbery and murder convictions based on a flier containing a photograph. Here, when police arrived on scene, a witness provided a detailed description of the first man to walk into the bar. A few days later, the police showed the same witness a photographic line-up. Garcia’s picture was included in a group of photos. The witness failed to identify Garcia in the picture line-up.
Television stations were later given pictures from a security camera to help find the suspects. It appears the pictures may have been provided by the police. Subsequently, the police contacted the witness that failed to identify Garcia in the photographic line-up (and other witnesses); and told them not to watch any news broadcasts or any other coverage regarding the shooting.
However, despite the warning, the witness that previously failed to identify Garcia saw a “reward flier” containing the picture released by law enforcement. A key fact (for the court) was the reward fliers were not made, or passed out by the police. Later, Garcia’s attorneys argued this identification was unfairly suggestive. A motion to exclude the identification by witness was made. The trial court denied the motion.
The Arizona Supreme Court held that because the flier was not made or authorized by the police, it did not fall within the protections of the Due Process Clause. They reasoned there was no state interference of the witness and Due Process protection only forbids the State from causing this type of tainted identification.
It appears the court believed that releasing the photo was not enough state action to violate Garcia’s Due Process rights. Perhaps, if the defense was able to identify the creator of the flier, the result may be different. What if the person was part of a silent witness program or some other quasi-government program? Moreover, the opinion plainly states the defense did not admit a copy of the flier into evidence. Could the contents of the flier have supplied some evidence of state action?
In sum, the behavior that taints the identification needs a closer connection (at least in Arizona) to state action, in order to be rise to the level of a Due Process violation. Moreover, while the Court permitted the witness to testify about his identification, the defense still has the right to cross-examine the witness as to suggestive circumstances of the identification.
If you have questions regarding a specific legal issue please contact The Koplow Law Firm.
Just in case there was any doubt, the Arizona Court of Appeals made it official that your religious beliefs are not a legal defense to the crime of Possession of Marijuana.
In the case of State v. Hardesty, Mr. Hardesty was charged with possession of marijuana and possession of drug paraphernalia. After a routine traffic stop, drugs were found in Mr. Hardesty car. He claimed that the drugs were part of his religion, and tried to assert a defense under the Freedom of Religion Act.
He argued that under both the federal and state constitutions, the Act protected his use of the drug. While many people believe that government may not restrict religious activity, this is simply untrue. The court here points out that the Government may restrict religious activity if: (1) the restriction furthers a substantial government interest, and (2) there is no less restrictive means of furthering the interest. The least restrictive means refers to an alternative way to protect the asserted interest, without a complete ban on the activity. Here, Hardesty claimed that his religion allowed him to smoke and eat marijuana wherever, whenever, and in whatever amounts he felt necessary.
On the other hand, the government argued that there is a substantial interest is public safety, and a complete ban on its use is necessary. The court agreed with the government’s public interest argument. The Court went on to there is no other way to insure public safety aside from the ban on marijuana use, because Hardesty insisted he could use marijuana at anytime and anyplace.
This one was not that hard to predict. If you have question about a specific legal issue please contact the Koplow Law Firm.
Arizona Criminal Defense Lawyer Blog
The Arizona Criminal Defense Lawyer Blog is published by the Attorneys at the Koplow Law Firm. Our criminal practice experience includes a wide variety of defense representation and cases; and is led by Lawrence Koplow, a former prosecutor with the Maricopa County Attorney's Office.
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