Tuesday, May 22, 2012

The Exclusionary Rule & the Bill of Rights

The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is inadmissible for a criminal prosecution in a court of law.

“Nothing can destroy a government more quickly than its failure to observe its own laws” Mapp v. Ohio, 367 U.S. 643 (1961). That was Justice Clark’s sententious response, back in 1961, to those seeking to uphold the decision in Wolf v. Colorado, 338 U.S. 25 (1949), that the exclusionary rule did not apply to state court jurisdictions. Evidence gathered by police without a warrant is in direct violation of the Fourth Amendment to the United States Constitution and is therefore inadmissible.

The Court comes to this conclusion based on the historical context and or historical evolution of constitutionality of this rule; and the Court believes that these prior precedents on the issue best represent the original contextual meaning set forth in the Constitution, regardless of its brevity on the matter.

In regard to the Bill of Rights: the pithiness of the text, as not to fully consider or detail whether or not this should have applied both to the states as well as to the federal government shows that framers of the Constitution were unable to foresee such conflict on the matter between the federal government and the states. It is hard to imagine that the framers would have not included text for the incorporation of the Bill of Rights if they had a chance to witness the imminent conflict. The argument for the exclusionary rule is made from the original text of the Constitution within the Fourth Amendment. It wasn’t until 1833, however, that the Supreme Court confronted the argument that a state government had violated one of the provisions of the Bill of Rights.

Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833), set the precedent on whether or not the United States Bill of Rights could be applied to state governments. John Barron, co-owned a profitable wharf in the Baltimore harbor, sued the city for economic loss occasioned by the city’s diversion of streams, which lowered the water level around the wharfs. Chief Justice John Marshal wrote for the majority, concluding that the first ten amendments restrained only the federal government, thus requiring Americans to look to state constitutions for civil liberty and political liberty protections.

It wasn’t until 1868 that the Fourteenth Amendment was ratified; thus, again bringing up the issue of the application of the Bill of Rights to the States. The particularly language that is applicable to incorporation within the Fourteenth Amendment comes in the Due Process Clause, which prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness, and the Equal Protection Clause requires each state to provide equal protection under the law to all people within its jurisdiction.

In Hurtado v. California, 110 U.S. 516 (1884), the Court held that the Fourteenth Amendment was a limit on state power. The case that set forth the exclusionary rule was Weeks v. United States, 232 U.S. 383 (1914). In Weeks the Court held that evidence (betting slips) could not be used because there was no warrant obtained by federal marshals to search the premises. The ruling, however, did not apply to state and local police, since the Bill of Rights was not applicable to state jurisdiction. In Gitlow v. New York, 268 U.S. 652 (1925), the Court ruled that the Fourteenth Amendment had extended the reach of certain provisions of the First Amendment. With the Gitlow decision, Barron began to lose some of its authoritative status for the first time.

Meanwhile, the exclusionary rule came up again in Wolf v. Colorado, 338 U.S. 25 (1949). In Wolf, the Supreme Court ruled specifically that the exclusionary rule did not apply to state court jurisdictions. The consideration in Wolf was whether or not the Fourth Amendment search and seizure protection was incorporated in the Fourteenth Amendment’s equal protection clause, thereby making it applicable to state as well as the federal government. Writing for the majority, Justice Felix Frankfurter argued that protection from arbitrary intrusion by law enforcement is implied in the “concept of ordered liberty” and is thereby applicable to the states; however, he rejected the claim that illegally or unconstitutionally obtained evidence had to be excluded in state criminal proceedings. The opinion put forth by Justice Frankfurter was puzzling and frankly contradictory.

In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court held that the exclusionary rule was now applicable to state courts when local police violated the rules governing searches and seizures under the Fourth Amendment. In Mapp, Justice Thomas C. Clark gave pragmatic reasoning for extending the Weeks decision to the states. Justice Clark argued that without applying the Weeks decision to the states the Fourth Amendment would be dramatically reduced. Justice Clark also clarified that it is the “law that sets the criminal free,” not the authorities. It was one year later that the Selective Incorporation Doctrine (1962) was formally signed, making the first ten amendments to the Constitution—known as the Bill of Rights—binding on the states.

No doubt it was the forming of such groups as the American Civil Liberties Union (ACLU), and the Civil Rights Movement (1955-1968), among other things, that spurred on such a dramatic change in the Supreme Court’s opinion. Other big contributing factors have to be seen as police misconduct complaints and statistics. These changes were necessary, both for the profession and for the preservation of civil liberties. Many of these types of laws are a work in progress (trial and error), and thankfully the Constitution (i.e. the framers) left such a broadly interpretive text in order to do so, with the changing of the times and ever-evolving social views.

Friday, May 11, 2012

Using Impression Evidence to get a Conviction

Impression evidence can be an important part of any criminal investigation. This type of evidence is created anytime one object or material that can be manipulated with force is pressed against another object, allowing the objects to transfer and retain characteristics from one another. Impression evidence is used by investigators to examine and compare the impressions and characteristics of a suspect, or characteristics of something a suspect owns or was in possession of at the time of the crime, in an attempt to identify common distinctive details in order to get a match; thereby linking a suspect to the crime. There has always been some speculation as to the onus that should be put on impression evidence to get a conviction when it is the primary evidence against. The question then remains, is impression evidence, alone,—particularly palm prints, lip prints, and bite marks—sufficient enough evidence to sustain a conviction?

There have been several cases involving the three said types of impression evidence (as the only real evidence against) over the years that have been overturned. Ray Krone, once branded the “snaggletooth killer,” was released from the Arizona State Prison in 2002 after DNA cleared him of the killing of Phoenix cocktail waitress, Kim Ancona, back in 1991. A bite mark on the victim’s breast (and the testimony of Dr. Raymond Rawson, the State’s dental expert) was basically the only evidence that convicted Krone of the murder. But later DNA analysis found that the true identity of the killer was a man already incarcerated on another unrelated offense.

In 1997 Lavelle L. Davis was convicted of shooting to death Patrick Ferguson in Illinois in 1993. The evidence that led to the conviction of Davis centered largely on a lip print recovered from the scene that a forensic examiner testified linked Davis to the scene. Davis finally got an appeal hearing in 2006; and there judge, Timothy Q. Sheldon, reversed the conviction, noting that lip prints were not and had never been an accepted means of identification. Prosecutors dropped all charges against Davis in 2009.

Back in 2004, Brandon Mayfield, an Oregon attorney and Muslim convert, was held as a material witness in the Madrid train bombing of 11 March 2004, “a terrorist attack in which 191 people were killed.” Mayfield was picked up after a latent palm print (attributed to him by FBI senior fingerprint examiner, Terry Green) was lifted off of a bag that was recovered in Madrid containing detonators and explosives. They held Mayfield despite his claims that he had not left the U.S. in almost ten years and did not even own a passport. A few weeks later the FBI retracted the identification and issued an apology to Mayfield. Police now believe that the prints belong to Daoud Ouhnane, who is still a fugitive, and that he was the mastermind and chief coordinator of the attack in Madrid.

These three cases show the importance of not rushing to judgment when it comes to impression evidence, as well as not putting too much onus on this type of evidence without more corroborating physical evidence. There are, unfortunately, many more cases like these to draw from. When it comes to these three types of evidence; there have been no peer-reviewed studies, no systems of classification, and no means of individualization developed. The use and study of impression evidence should not be completely undermined here, however. Investigators still must have an awareness of print transfer basics, as impression evidence has aided in the conviction of many criminals who actually committed the crimes. They also aid in the formulation (or investigator reenactment) of the crime, helping investigators build a better picture of what happened and helping them know where to search next.

Wednesday, May 9, 2012

CSI: Collecting Evidence at a Homicide

Even those naive to the inner workings of a crime scene investigation know that the collection, preservation, and analysis of evidence can all be the difference between a conviction and an acquittal. Tantamount to this is the fact that all of these evidentiary factors can also mean the difference between convicting a guilty person and convicting an innocent person. Crime scene investigating is an amalgamation of science, logic, and law. Although physical evidence is only part of the equation—with the ultimate goal being to convict the guilty party(s) of the crime—it does deserve special attention and training in and of itself in order to ensure the evidence is effectively used to help solve the crime.

At this particular crime scene (hypothetical crime scene), the investigation involves four key pieces of physical evidence that must be accounted for: dried blood, a handgun, shell casings, and hairs. When collecting these pieces of evidence, the investigator must follow strict protocol to ensure the preservation of such evidence.

Dried Blood

Dried blood will show up at just about every crime scene involving murder. There are several protocols used by investigators to ensure that this evidence gets to the lab with as little harm done to it as possible. If the dried blood is on clothing, for instance, it should be wrapped in clean paper, placed in a brown paper bag or box, sealed and labeled; the investigator should not attempt to remove the stain(s) from the cloth. If, by chance, the dried blood is on a small solid objects; the investigator should send the whole stained object to the Laboratory, after labeling and packaging it.

If the blood happens to be on large solid objects; the investigator should cover the stained area with clean paper and seal the edges down with tape to prevent loss or contamination. If it is not practical to transport the entire object to the lab, the blood stain should be scraped onto a clean piece of paper that can be folded and placed in an envelope. It should not be scraped directly into evidence envelope; rather, it should be scraped from objects using a freshly washed and dried knife or similar tool. The investigator should take precaution by washing and drying the tool before each stain is scraped off, before sealing and marking the envelope. Dried blood stains should not be mixed, but rather they should each be placed in a separate envelope, and they should never be wiped from an object using a moist cloth or paper.

Using various testing methods at the lab, such as the restriction fragment length polymorphism (RFLP) process or the polymerase chain reaction (PCR) process, blood can be examined and amplified in order to determine the genetic profile of the individual who left it behind.


Ballistic evidence can lend a lot to an investigation, answering questions such as what type of gun was used, how many shots were fired, and even where the shooter was positioned when firing in relation to the victim. The most obvious rule of collecting a gun from a crime scene is to never submit a loaded gun to the lab unless it is delivered in person. Unfired cartridges should be left in the magazine of a weapon, provided the magazine is removed from the gun—a firearm with the cartridge in the chamber should never be shipped by any method, even if the weapon is not cocked or on safety.

The serial number should be recorded as well as should be the make, model, and caliber of the weapon, and it should be marked in some inconspicuous manner so it does not detract from its value before sending it to the Laboratory. Weapons should be placed in strong cardboard or wooden boxes and be well packed to prevent shifting of guns in transit. Also, rifles or shotguns should not be taken apart on the scene; this should be left to ballistics experts. If blood or any other material, which may pertain to an investigation, is present on the gun, the gun should be wrapped in clean paper and sealed with tape to prevent movement of the gun and loss of the sample during shipment.

Investigators should never clean the bore, chamber, or cylinder before submitting a firearm, and never attempt to fire the gun before it is examined in the lab. A handgun should be picked up with gloved hands (with index finger and thumb) on an area of the weapon that is unlikely to produce useful fingerprints, such as by the curvature around the trigger. A submerged weapon should be sealed in a plastic container while still under water.

Shell Casings

Shell casings can tell investigators several things about how the crime took place. Shell casings can also tell investigators what caliber, brand, and model of the gun used, as well as if the marks on the casings may show that the gun is involved in other investigations. Casings should be wrapped and sealed in separate labeled pill boxes or envelopes.

Striation marks (or microscopic scratches) inside of the barrel of the gun transfer onto the bullets when they are fired. These marks are unique to each barrel, which allows forensic investigators to identify a weapon from the bullets fired from it. A lack of shell casings at a scene could mean that the shooting took place elsewhere, the weapon didn’t eject the spent shells, or the shooter took the time to clean them before leaving.

The gun can also be fired back at the lab by ballistic experts in order to determine if the bullets found at the scene came from the gun in question and how close the gun was fired from. Firearm and tool mark examinations (called “ballistic fingerprinting”) is also done by ballistic experts.


Hair left at the crime scene can also be a valuable piece of evidence in an investigation. Along from the many things that it can reveal, it can sometimes reveal the possible race of the individual from whom it came and the part of the body from which it originated. All hair should be recovered from a scene. Hair should be collected using gloved fingers or tweezers, placed in paper bindles or coin envelopes, folded and sealed in larger envelopes, and then labeled on the outer sealed envelope.

If hair is attached, such as in dry blood, or caught in metal or a crack of glass, the investigator should not attempt to remove it, but should rather leave the hair together with the object. If the object is small, it should be marked, wrapped, and sealed into an envelope. If the object is large, the area containing the hair should be wrapped in paper to prevent loss of hairs during shipment. In the lab, human hair can be compared to determine whether or not two samples could have had a common origin.