Here are some issues that are coming up frequently in our trials, which we believe are ripe for appellate consideration:
- Jailhouse informants, or “snitches.” Prosecutors love to present jail inmates who swear on a stack of Bibles that the defendant told them, as they were sitting around the cell block, how he committed the crime that he is charged with. Although there is a lot of evidence that these snitches are almost always lying through their teeth to get their time cut, practical experience tells us that jurors give a lot of weight to these “witnesses.” We have experience in cross-examining and confronting these witnesses, and have developed some strategies that may help expose their lies.
- Hearsay and the Confrontation Clause in the Sixth Amendment to the United States Constitution. The United States Supreme Court, in Crawford v. Washington, 541 U.S. 36 (2004), radically changed the way that criminal cases are tried. It was once clear that certain kinds of hearsay evidence would be admissible against a defendant under long-recognized exceptions to the rule against hearsay evidence. In recent years, the United States Supreme Court and the Virginia Supreme Court have excluded hearsay evidence that might have been admitted fifteen years ago. Samantha Freed, who was in our office at the time, was the appellate lawyer in one of Virginia’s most important Confrontation Clause cases, Crawford v. Commonwealth, 281 Va. 84, 704 S.E.2d 107 (2011) . This is a hot topic in criminal law right now.
- Due Process notice. The General Assembly and Congress continue to make criminal law ever more complicated, and the Courts make it worse. For example, there are certain driving offenses that only apply when the defendant is “operating” a motor vehicle on “a public highway.” Did you know that the word “operating” includes sitting in a car with the engine off, listening to the radio? Neither do most people. But the Virginia Supreme Court continues to hold that “operating” a vehicle, as required to support a conviction for driving while intoxicated (DWI), means engaging the machinery of the vehicle which alone, or in sequence, will activate the motive power of the vehicle. Nelson v. Commonwealth, 281 Va. 212, 707 S.E.2d 815 (2011). Did you know that a private parking lot may, under some circumstances, be considered a “public highway” for these purposes? Neither do most people. But the Virginia appellate courts continue to hold that a road within a private residential apartment complex was a “highway,” within the meaning of the driving laws. Seaborn v. Commonwealth, 54 Va.App. 408, 679 S.E.2d 565 (2009). We have found that although judges think that makes sense, juries don’t. Sometimes cases like those just need to be taken to jury trials. But there is another issue — that the Due Process Clause in the Fourteenth Amendment to the United States Constitution protects us all against prosecutions based on laws that are confusing. We continue to believe that in every prosecution, if the prosecution relies on some definition that the ordinary lay person would not understand, the Due Process Clause is violated, and it is up to the defense lawyer to make that objection and, if the client authorizes, to appeal it to get a more intelligible ruling.
- Should the courts take responsibility for creating procedures that are more likely to get accurate results? We know that the criminal justice process results in innocent people being convicted — recent developments in DNA evidence have led to the exonerations of more than 250 people who had been convicted of serious crimes such as murder and rape. Professor Brandon Garrett of the University of Virginia School of Law published a book a few years ago — Convicting the Innocent — in which he analyzed the first 250 exonerations to see what went wrong. He found that the most common factors that led to innocent people being convicted were false confessions caused by often subtle police pressure, eyewitness identification procedures that are known to cause incorrect identifications, prosecutorial “junk science” and flawed forensic work, and jailhouse snitches without any procedural protections. The problem is that although law professors and lawyers know that certain police practices lead to the conviction of innocent people, judges allow such evidence because, they say, they have confidence in juries to figure it all out. We rely on juries to know when an eyewitness identification is suggestive, even though we in Virginia don’t allow testimony from experts to tell juries when the police have done something that studies show leads to incorrect results. We have been trying for years to get trial courts and, increasingly, appellate courts to take responsibility for crafting procedures that are likely to result in juries “getting it right.” We continue to believe that judges need to be more aggressive in making sure that only reliable evidence is admitted, and we will continue to push for more care in the investigative procedures used.