Category: Evidence Law


Book Review: David Kaye’s The Double Helix and the Law of Evidence

The Double Helix and the Law of Evidence by David H. Kaye.  Harvard University Press: Cambridge 2010, pp. 352. $45.00.

“If it doesn’t fit, you must acquit.”

— The late Johnny Cochran, September 1995.

Almost fifteen years have passed since O.J. Simpson was acquitted of the double murder of Nicole Brown Simpson and Ronald Goldman.  Called the trial of the century, the Simpson case is still seen as a key point in legal history, even though the case created no significant legal precedent.

Experts at the time were still debating fundamental questions about the reliability,  acceptance, and admissibility of DNA testing.  The Supreme Court had handed down its watershed opinion in Daubert only a few years earlier.  As Professor David Kaye explains in his new book The Double Helix and the Law of Evidence, Simpson’s attorneys challenged the admissibility of the DNA evidence on numerous grounds.  But, at the end of the day, the most memorable moment of the trial is not the arcane issue of whether experts correctly calculated genetic probabilities using statistical estimation methods but Johnny Cochran’s statement in his closing, “If it doesn’t fit, you must acquit.”

Professor Kaye, distinguished professor of law and Weiss Family Faculty Scholar at Penn State Law, offers far more than just an account of the Simpson DNA evidence.  Kaye provides an in-depth review of how the law of DNA evidence progressed from its beginnings in the 1980’s to its current state.  His book is, in his own words, “part history, part legal analysis, part popular science, and part applied statistics.”  Kaye provides vignettes of many key developments in DNA evidence, from the first conviction and first exoneration based on DNA evidence in the 1986 Pitchfork case to the Simpson case to the use of mitochondrial DNA in analyzing the remains of Tsar Nicholas II and his family.  Kaye also examines legal milestones, such as People v. Castro, 545 N.Y.S. 985, 999 (Sup. Ct. 1989), in which Barry Scheck and Peter Neufeld convinced Judge Gerald Scheindlin to restrict the admissibility of the prosecution’s DNA evidence because the private testing laboratory “failed in several major respects to use the generally accepted scientific techniques and experiments for obtaining reliable results, within a reasonable degree of scientific certainty.”

Kaye’s book is not what I expected from the title, but surprises can be pleasant, as was this one.  Kaye draws from his substantial experience and his prior legal scholarship to create a concise and highly readable text devoted to the basics of DNA evidence and its historical development.  The book is not a comprehensive analysis of legal precedent governing DNA evidence, but that was not Kaye’s goal.  As Kaye explains, his work “is a tale of scientific egos, journalistic hype, lawyerly maneuvering, and judicial doctrine and disposition.”  Kaye starts the tale with biological evidence before DNA, such as the common A, B, and O blood types, and moves through the various stages of how courts and litigants reacted to the new actor on the legal stage.

Kaye’s explanations of the intricacies of DNA evidence are accessible to lawyers not having any specialized scientific training.  Kaye details the contributions of the major players, including experts such as Richard Lewontin, Daniel Hartle, and Eric Lander, lawyers Scheck and Neufeld, and the 1992 and 1996 reports of the National Research Council.  Kaye similarly explains the now classic “prosecutor’s fallacy” as applied to DNA evidence.

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Teaching Sexual Violence

teacherI’m into week two of Evidence, which is one of my favorite classes to teach — full of vivid examples and fun hypotheticals, which make it relatively easy to keep students engaged.  Each year, however, I hit the tricky problem of how to deal with the sections of the course that cover crimes of sexual violence while maintaining the pedagogical goals of maximizing participation in class discussion and encouraging thorough and comprehensive study habits.  There are two main parts to this question — how to approach cold-call questioning in this area of the course and how to test these issues.  I’m sure others who teach evidence, criminal law, international criminal law, and similar courses have faced these problems, and I’m eager to hear how you’ve addressed them. Read More


Reining In Executive Power: Proposed State Secrets Legislation

1074578_its_a_secret_.jpgOver the past 56 years, the Executive Branch has enjoyed a seemingly unchecked right to shut down litigation in the name of “state secrets.” The landmark 1953 case that gave vitality to the “state secrets” privilege was United States v. Reynolds. In that case, three widows sued the government after their husbands died in the crash of a U.S. Air Force aircraft that they had help engineer. During discovery, the government refused to produce the Air Force accident report and statements of crew survivors to plaintiffs or even the judge for in camera inspection. The trial court and the Third Circuit found that the government could not unilaterally decide what it could withhold as permitting it to do so would eliminate the independent judiciary’s important check on government. The Supreme Court in Reynolds disagreed, finding that the government had the right to withhold evidence from private parties when disclosure, according to the government, would endanger national security. In the wake of Reynolds, judges tend to dismiss private lawsuits as soon as the government asserts the “state secrets” privilege. The Bush Administration frequently invoked the “state secrets” privilege, most notably in cases challenging the constitutionality of its national security programs including the warrantless wiretapping, rendition, and interrogation programs.

Yet, as two recent books (both elegantly written and carefully developed, see here and here) demonstrate, Reynolds stands on troubling ground: the Air Force report (released in 1996) contained no secrets but did attest to the Air Force’s negligent conduct. This ignominious history illustrates the great danger of giving the Executive Branch unchecked power to invoke the state secrets privilege: it can be, and has been, used for the sole purpose of concealing government misconduct or carelessness.

Responding to this concern, Senate Judiciary Committee members last week unveiled the State Secrets Protection Act, a bill that would help check the misuse of the “state secrets” privilege. As Chairman Patrick Leahy explained, the bill endeavors to “guide courts to balance the government’s interest in secrecy with accountability and the rights of citizens to seek judicial redress.” The bill would provide a uniform set of procedures for federal courts considering claims of the state secrets privilege, such as in camera hearings and special masters. It would require judges to look at the evidence that the government claims is privileged, rather than relying solely on government affidavits as courts have increasingly been wont to do. The Committee report explains that the bill addresses the crisis of legitimacy surrounding the privilege by setting forth clear rules that take into account national security and the Constitution. Although the privilege had an ignominious beginning, this bill would work to secure for it a more reputable life.


Of International Crimes and Memory Sticks

memory stick.jpgPerhaps my favorite news story of late (apart from the Somali pirates and their spokesperson) is the Colombian government’s seizure of a memory stick belonging to the rebel group FARC, containing the names, identities, aliases, and even some photos of over 9,000 guerrillas. One can almost imagine the guerrilla-in-chief stomping around muttering to himself, “I KNOW I had that memory stick around here somewhere.” And you felt bad about that memory stick you lost! In all seriousness, the FARC is notorious for its human rights abuses, and its entry into the digital age may benefit not only the group itself.

While genocidaires and other perpetrators of grave crimes often keep painstaking records of their crimes, it has been in the past an enormous task to track down, authenticate, and preserve this documentary record. In just one example, the Documentation Center of Cambodia (DC-Cam) has worked for over a decade to collect and store documentary evidence of the crimes of the Khmer Rouge, whose surviving leaders are soon to be tried before the Extraordinary Chambers in the Courts of Cambodia (ECCC). I flew all the way to Cambodia last summer to meet with ECCC officials on behalf of the DC-Cam to discuss document transfer, storage, and preservation protocols. Imagine if we could have just handed over a memory stick full of information to the court! What if Pol Pot had a laptop we could get our hands on? The possibilities are endless in the digital age; the ease with which we can now transfer information may be helpful not only for perpetrators but also for prosecutors of international crimes.

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Fear Not the Inadvertent Waiver

documents.jpgFor those junior law firm serfs toiling away in the dungeons of document discovery drudgery, some good news is coming your way. Apart from thanking your lucky stars that you chose to be a lawyer rather than an investment banker, you can be happy about the recent promulgation of Federal Rule of Evidence 502. This new rule ensures that the unintentional disclosure of a privileged document does not result in automatic waiver of the attorney-client and work product privileges on all documents concerning the same subject matter. Rather than the current standard that allows for no human error, under the new rule, as long as you take “reasonable steps” to prevent disclosure and to rectify the error once discovered, the privilege will not be waived on related documents. Moreover, the rule applies not only to proceedings in federal court, but also to disclosures made to a “federal office or agency” — thus encouraging corporations to comply with federal investigations without needing to worry about broad waiver of privileges.

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Cross-Examining Film

Thanks for having me here at Concurring Opinions. I haven’t blogged for some time – reminding myself there is life outside of the Web – but for the next month I am excited to reengage my blogging-self and hopefully some readers of this blog.

One of my summer projects is to think about how to turn some of my more theoretical writing on law and film into a practical “how to” piece on lawyering in the courtroom with filmic evidence. To that end, I have been watching lots of police films (a subset of what I have called “evidence verite”). These films can be found without much effort on YouTube or VideoSpider. Anyone else out there know of good sites storing this kind of film footage, I would love to hear about it. I found one piece of footage that is the subject of a recent court case – Jones v. City of Cincinnati, 521 F.3d 555 (6th Cir. 2008) – which can be found here. This film, of the police using a tremendous amount of force to subdue Nathanial Jones (who subsequently died), is an excellent example of how the film frame (what is seen and what is not seen due to the limits of the camera’s size and angle) can affect the viewer’s response to the images. When watching this film, we must imagine the blows delivered and the pain received because both are off-camera. How we imagine them might depend on our experience with police brutality more generally. (We do hear the police and the criminal suspect protesting loudly.) Do we imagine Hollywood violence (which way does that cut for the defendant here)? Do we have any experience seeing this kind of violence first or second hand so that it is hard to imagine anything but the worst? The boundaries of imagination are hard to predict and therefore a formidable opponent in a court of law. Imagination is obviously not evidence in a court of law, although it likely wields mighty influence nonetheless. A former student suggested to me that not seeing the blows Nathanial Jones suffered makes us more callous to the pain he received. I tend to think that is the case.

The Sixth Circuit in Jones v. City of Cincinnati affirmed the district court’s refusal to dismiss the case on defendant’s 12(b)(6) motion and said this in relation to the film: “Where the evidence ‘captures only part of the incident and would provide a distorted view of the events at issue,’ as the district court concluded with respect to the videotape, we do not require a court to consider that evidence on a 12(b)(6) motion.” Id. at 561. To this, I would say “no kidding,” but we will have to wait and see what the trial court does on a Rule 56 motion. Given the Supreme Court’s decision in Scott v. Harris, I remain skeptical that a court can resist the myth of film’s obviousness and objectivity.

For those who need a refresher, Scott v. Harris was the 2007 Supreme Court case concerning a high speed police chase that resulted in the police ramming the suspect’s car causing him to become a quadriplegic. A police camera on the cruiser recorded the chase from the point of view of the police car, and the Supreme Court said that the trial court should have considered the facts in that case “in the light depicted by the videotape” despite contradictory testimony. For an excellent analysis of the flaws of that case, see Howard Wasserman’s short piece here . For an even shorter analysis, see my Op-Ed here . For a longer more empirical analysis of the video in the case, see Kahan et al. here.

How do courts and lawyers deal with filmic evidence in light of film’s inevitably partial nature? That is what my new piece is working through with some practical tips on cross-examining film in a courtroom. The piece should be up on-line soon. For those who want a preview, feel free to email me.