Last week, this column featured an article from Professor Emeritus Edward J. Imwinkelried concerning the “disturbing” prevalence of bad science which has been permitted to come before the fact-finder in American criminal trials. This week’s column features an article exploring potential solutions to that problem. The Harvard Law Review, as part of its Modern Courts Commentary Series, recently published a commentary by William and Mary Law School Professor Allison Orr Larsen entitled Judicial Factfinding in an Age of Rapid Change: Creative Reforms from Abroad.
The UC Davis Legal Studies Research Paper Series recently released an article entitled Revising State Post-Conviction Relief Statutes to Cover Convictions Resting on Subsequently Invalidated Expert Testimony by former Army JAG, and prominent evidence law scholar, Professor of Law Emeritus Edward J. Imwinkelried. The article posits:
Invalid expert testimony has become a disturbingly recurrent theme in the wrongful conviction studies.
Id. at 3.
Scholarship Saturday: The Enigma of the Self-Incrimination Clause and Compulsory Decryption of Encrypted Media
As CAAF continues to deliberate on the interlocutory prosecution appeal in United States v. Mitchell, No. 17-0153/AR (CAAFlog case page) (argued on Tuesday, April 4, 2017), involving suppression of the contents of the accused’s cell phone because military investigators continued to question him after he requested an attorney and that questioning led to the phone’s decryption, a Marine judge advocate’s student note in the Georgetown Law Technology Review is of interest.
In Cracking the Code: The Enigma of the Self-Incrimination Clause and Compulsory Decryption of Encrypted Media, 1 GEO. L. TECH. REV. 247 (2017) (available here), Jason Wareham concludes that:
the act of decrypting a hard drive is protected by the Fifth Amendment, as the act of decryption, not just the sharing of the password, is itself testimonial. Decrypting is testimonial logically because it provides access to files no other person can know of or otherwise access. The act of encryption is an admission proving both the existence of the accused’s files, and the accused’s possessory relationship to these files. Since only the person who encrypted an item would have the key to decrypt it (presuming the knowledge-based password), it shows possession, dominion, or control. Finally, the accused’s act of production would be a necessary link in the authentication for the files should the prosecutor seek to have the evidence admitted in court, as no one but the accused would be able to confirm that the files produced are indeed the accused’s files.
Wareham suggests that “the jurisprudence governing compulsory decryption is poised to devolve into an indiscernible morass,” and that “there is no discernible rule, standard, or analysis emerging for the use of the act of production or foregone conclusion doctrines as applied to encryption.” So, two are suggested:
First, as a legal principle, practitioners, governments, and courts alike should accept that compelling an individual to either produce a password or to compulsorily decrypt their digital files in a private knowledge-based-key scheme is presumptively a testimonial act. . . .
[Second] if the decrypted files are not cumulative then they add something to the government’s case. If they add something to the government’s case, then the decrypted files are a link in the chain of evidence against the accused. If the decrypted files are a link and the decryption comes from the accused, then his self-incrimination right has been infringed because he was compelled to join that chain.
CAAF may well avoid this morass in Mitchell by applying the plain and relatively-simple language of Mil. R. Evid. 305(c)(2) that any evidence derived from an interrogation after a suspect requests counsel is inadmissible unless counsel was provided. I suggested this approach in my argument preview.
Over 120 years ago, in Brown v. Walker, 161 U.S. 591, 596 (JUSTIA) the Supreme Court explained that the Founders created the Fifth Amendment’s right against self-incrimination as a “protest against the inquisitorial and manifestly unjust methods of interrogating accused persons which has long obtained in the continental system.” Specifically, the Court noted:
[The Fifth Amendment was created to protect an accused from] the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials . . . [which] made the system so odious as to give rise to a demand for its total abolition.
Id. at 597.
Seventy years later, the Supreme Court found that the Fifth Amendment’s purpose – abolishing “inquisitorial” police practices – had yet to be satisfied. Accordingly, the Court issued its decision in Miranda v. Arizona, 384 U.S. 436 (1966) (oyez).
Scholarship Saturday: The government’s coming requirement to show the accused’s recidivism risk during sentencing
The Military Justice Act of 2016 (MJA) was this blog’s #1 Military Justice Story of 2016, and will revolutionize the practice of military justice come January 2019. That revolution includes changes to the military justice system’s sentencing regime. One of the most aggressive changes is found in § 5301 of the MJA, which completely rewrites Article 56 to include language designed to temper a court-martial’s exercise of sentencing discretion.
Scholarship Saturday: DoD’s Judicial Proceedings Panel raises “serious questions” about how the military justice system treats the accused in sexual assault cases
As recently discussed on this blog, the Judicial Proceedings Panel (JPP) is one of three entities chartered under the Federal Advisory Committee Act to conduct an independent assessment of the military justice system. In May of this year, a JPP subcommittee published its Report on Barriers to the Fair Administration of Military Justice in Sexual Assault Cases. The report offers a stark assessment regarding the perceived failure of the military justice system to treat service members accused of sexual offenses fairly:
Congress, the Department of Defense, and the White House have all worked to change the military system so that victims of sexual assault are treated with respect and are not further victimized by the criminal justice process. Other changes have been put in place to counter the perception that sexual assault predators were being protected from prosecution by military commanders.
Many of these changes have been valuable. One possible sign that they are having an effect is the increase in the past few years of the number of sexual assault cases being reported. While its cause cannot be identified with certainty, many believe that it indicates greater confidence that the criminal justice system will help the victim and vigorously prosecute the accused.
As constructive and important as these changes have been, they have also produced an unintended negative consequence: they have, as the Subcommittee was repeatedly told on its site visits, raised serious questions about the fundamental fairness of the military justice process when it comes to the treatment of the accused.
Report at 4.
Scholarship Saturday: Two new DoD reports on sexual assault, Senatorial interest, and the specter of Unlawful Command Influence
It is sexual assault report card season for the Department of Defense, and the actual numbers reported don’t necessarily match the political rhetoric. And, the political rhetoric is, perhaps, particularly strident this season. That could be a concern given CAAF’s recent decision in United States v. Boyce, CAAF Dkt. No 16-0546/AF (CAAFlog case page).
Rule for Courts-Martial 306(c)(2) provides that a commander faced with a subordinate’s misconduct may elect to take administrative action against that subordinate. The discussion section to that rule makes clear that administrative separation is one of the adverse administrative actions available to a commander.
A recent report by the Government Accountability Office (GAO), entitled DOD Health – Actions Needed to Ensure Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) Are Considered in Misconduct Separations, posits that servicemembers with mental illnesses may not be receiving fair treatment in misconduct-based discharge proceedings. Then, in an article published by the Military Law Review entitled Justice in Enlisted Administrative Separations, ___ Mil. L. Rev. ____, Vol. 225, Issue 1 (May 2017), Major Latisha Irwin argues that servicemembers accused of sexual offenses are also receiving unfair treatment in discharge proceedings.
About 2,800 years ago, Homer described Odysseus’ encounter in Hades with an individual who was a betrayer of divine secrets, cannibal, and kin-slayer, all in one:
I saw also the dreadful fate of Tantalus, who stood in a lake that reached his chin; he was dying to quench his thirst, but could never reach the water, for whenever the poor creature stooped to drink, it dried up and vanished, so that there was nothing but dry ground- parched by the spite of heaven. There were tall trees, moreover, that shed their fruit over his head- pears, pomegranates, apples, sweet figs and juicy olives, but whenever the poor creature stretched out his hand to take some, the wind tossed the branches back again to the clouds.
A few decades ago, in United States v. Pallais, Richard Posner analogized the modern criminal defendant to that wretch, Tantalus:
The expansive code of constitutional criminal procedure that the Supreme Court has created in the name of the Constitution is like the grapes of Tantalus, since the equally expansive harmless error rule in most cases prevents a criminal defendant from obtaining any benefit from the code.
Mere days ago, the Harvard Law Review published an article entitled A Contextual Approach to Harmless Error Review, 130 Harv. L. Rev. 1791 (May 1, 2017), by Justin Murray, of the Illinois Attorney General’s Office. Mr. Murray posits that the harmless-error construct, conditioning relief on whether a given error has affected the result of the proceeding under review, is a mistaken approach. He asserts that such an approach fails to vindicate societal needs that are just as important as the truth-finding role that is served by upholding factually “overwhelming” convictions.
Last month, The Army Lawyer published an article authored by Marine Major G.K. Logan entitled “Zealous Advocacy, Professionalism, and the Military Justice Leader.” Major Logan’s article explores the difference between zealous advocacy, which the adversarial system demands, and zealotry, which is abhorred by the rules of professional conduct and prevailing standards of civility.
Earlier this week the Department of Justice issued a notice in the Federal Register asking the public to submit proposals to:
(1) Improve the underlying science and validity of forensic evidence; (2) improve the operational management systems of forensic science service providers; and (3) improve the understanding of forensic science by legal practitioners.
Notice of Public Comment Period on Advancing Forensic Science, 82 Fed. Reg. § 17879 (April 13, 2017).
The notice explains that public comment is necessary now because the 2-year charter for National Commission on Forensic Science (NCFS), which is a Federal Advisory Committee like the military justice system’s Judicial Proceedings Panel (CAAFlog page), is about to expire. The Department specified: “Proposals may include some combination of a Federal Advisory Committee, a new office at the Department, an inter-agency working group, regularly scheduled stakeholder meetings, etc.” Id. at § 17880.
Media response to the DOJ’s notice has been inaccurate and, at times, shrill. The Washington Post, reading an advance copy of the Notice, interpreted that the Attorney General had already decided not to renew the NCFS. Meanwhile, in a feature article, Rolling Stone lamented, “Jeff Sessions is Keeping Junk Science in America’s Courts” and “Trump’s attorney general is a threat to the rule of law he’s tasked with upholding[.]”
A gracious reader brought my attention to an article entitled The Silence Penalty, 103 Iowa L. Rev. ____ (forthcoming 2017), which is soon to be published by the University of Iowa College of Law, and which is authored by Professor Jeffrey Bellin of William & Mary Law School. Professor Bellin has examined data from actual criminal trials, as well as the results of a recent 400-person mock juror simulation, to conclude that an accused person who declines to take the stand in a jury trial suffers a conviction rate penalty that is about equal to having evidence of a prior conviction presented against them. In contrast, “for defendants without prior convictions, testifying coincided with an almost doubling of the chances of acquittal.” The Silence Penalty at 26. Professor Bellin warns:
The surprising power of the silence penalty should give pause to the many defendants without a prior record who demand a trial but then decline to take the witness stand[.] . . . Declining to testify,  puts them in the same position as a defendant with prior convictions. This is a major blow to acquittal prospects and one that (tactically speaking) should be avoided if at all possible.
Id. at 30. For defendants with prior convictions, the research found that the rate of conviction was about the same whether the accused testified or not.
In 2005, Congress appropriated funds – P.L. No. 109-108, 119 Stat. 2302 – and asked the National Academy of Sciences (NAS) to execute certain tasks identified at page 46 of Senate Report No. 109-88. One of those tasks was to “disseminate best practices and guidelines concerning the collection and analysis of forensic evidence[.]” Id.
With that statutory mandate, in 2009, a NAS committee published a groundbreaking report entitled Strengthening Forensic Science in the United States: A Path Forward. That report was discussed at a Congressional hearing where it was said that the NAS had “found that many of the techniques and technologies used in forensic science lack rigorous scientific discipline.” Congress concurred with the report’s recommendation that “a new agency, separate from the legal and law enforcement communities, be created to provide oversight to correct these inconsistencies which impact the accuracy, reliability, and validity of forensic evidence.” Id.
Accordingly, the task of reforming the practice of forensic science in this country was entrusted to an agency of the Department of Commerce: the National Institute of Standards and Technology (NIST). In turn, in 2015, NIST chartered the Organization of Scientific Area Committees (OSAC) for Forensic Science, which is a multi-disciplinary body made up of over 500 forensic science practitioners. OSAC’s job is to facilitate the development of forensic science standards for the nation.
Towards that end, last month, one of OSAC’s committees, the Legal Resource Committee (LRC), issued a memorandum entitled Question on the Hypothesis Testing in ASTM 2926-13 and the legal principle that false convictions are worse than false acquittals. That document is published by the Harvard Law Review at 130 Harv. L. Rev. F. 137 (2017), and dives straight to the heart of how forensic evidence finds its way into American court-rooms. The LRC’s missive establishes that a forensic scientist does not have to adopt the conventions of the legal forum he or she serves. Accordingly, when working on a criminal matter, the analyst does not have to presume innocence and does not have to use a beyond a reasonable doubt standard of proof for their conclusions.
Scholarship Saturday: Sex offender registration statutes are not faring well when subjected to rational basis scrutiny
A gracious reader directed me to a recent article authored by Dr. Melissa Hamilton in the Boston College Law Review entitled Constitutional Law and the Role of Scientific Evidence: The Transformative Potential of Doe v. Snyder, 8 B.C.L. Rev. E. Supp. 34 (2017). In her article, Dr. Hamilton discusses the United States Court of Appeals for the Sixth Circuit’s August 2016 decision in Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016) (Justia). That decision is pertinent to military justice practitioners for a couple of reasons.
First, the Sixth Circuit held: “[w]e conclude that Michigan’s [Sex Offender Registration Act (SORA)] imposes punishment.” 843 F.3d at 705. This contrasts with CAAF’s 2014 decision in United States v. Talkington, 73 M.J. 212 (CAAFlog case page), where the Court opined that sex offender registration was “a penalty for committing a crime[,]” 73 M.J. at 215, but did not “constitute punishment for purposes of the criminal law[,]” 73 M.J. at 217.
Scholarship Saturday: Military Rule of Evidence 513 – “What men value in this world is not rights but privileges.” – H.L. Mencken (1956)
The Military Law Review recently published an article by Army Major Angel M. Overgaard, one of the prosecutors from the Manning case. In her article, Redefining the Narrative: Why Changes to Military Rule of Evidence 513 Require Courts to Treat the Psychotherapist-Patient Privilege as Nearly Absolute, 224 Mil. L. Rev 979, 984-985 (2017), Major Overgaard explores the intersection between a patient’s privilege under MRE 513 to keep communications with mental health providers private, and an accused person’s right to receive a fair trial.