Davis, Zipperman, Kirschenbaum & Lotito, L.L.P.
918 Ponce De Leon Ave., N.E.
Atlanta, Georgia 30306
Phone: (404) 688-2000
Facsimile: (404) 872-1622
In June 1983 TRIAL began a seven-part series: The Law in the Future. The Hon. Orville Richardson began the series with an overview of the law as it may be circa 2000. Prof. Thomas F. Lambert followed him, proffering in the July and August issues an extensive look at tort law. This month Mark Kadish, E. Marcus Davis, and Rosalyn Suna Kadish pool the evidence they have gathered about the future of criminal justice.
Still to come: Larry Gordon and Allan Onove guide a tour through the law office of the future; Prof. James Jeans examines the changes to come in legal education; and finally, Stanley Preiser, Monty Preiser, and Sherry Goodman predict how developing technology will affect courtroom tactics and techniques.
Of all the areas of change that will impact significantly on the future practice of criminal law, two of the most significant involve the gathering and use of evidence. Fiber evidence is not new, but advancing technology is enhancing its role in criminal prosecutions, and on a different plane, alterations to Fourth Amendment search and seizure law during the next two decades will bear watching. Other aspects of criminal justice that will dramatically affect the future practice of law include standing to complain, electronic surveillance, and computer crimes.
Fiber Evidence: Its Future Use In Criminal Litigation
The celebrated Atlanta “Child Murder Cases” (State of Georgia v. Wayne Williams) have sparked the interest of the legal community in the prosecutors’ secret weapon-fiber evidence. While many lawyers and laypersons have hailed fiber evidence as a remarkable new tool to aid in prosecuting difficult cases, fiber evidence is not really a new discovery. What is new about fiber evidence is the enhanced ability of the forensic chemist to utilize such evidence as a result of certain technological advances.
Experienced prosecutors have long considered scientific proof the “backbone of every circumstantial evidence case.” Criminal lawyers can expect greater use of fiber evidence in the future not only because of its well-publicized successful use in Georgia v. Williams, but also because of the liberalization of the law of evidence in the area of expert testimony. Many jurisdictions have adopted procedures permitting the trial judge to determine “whether the procedure or technique in question has reached a scientific stage of verifiable certainty” or, in the words of Professor Irving Younger, “whether the procedure rests upon the laws of nature.” The trial court will make the determination based upon the available evidence, rather than by simply calculating the consensus in the scientific community.
Federal Rule 402 provides: “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by act of Congress, by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority.”
Liberalized evidentiary standards, coupled with modern techniques of fiber analysis, will guarantee a dramatic increase in the future use of fiber evidence.
Because of technological advances, criminal defense lawyers will confront more and more scientific evidence in the future. They must be prepared to understand such evidence. Securing the services of experts to examine evidence, to advise counsel, and to rebut the prosecution’s case is probably the single most important factor in defending a case in which novel scientific evidence is used. Studies show that scientists are fallible—fiber and scientific evidence can be successfully attacked. Although the courts will readily admit scientific evidence, the evidence can be shown to have little or no probative weight. Thus, an understanding of the principles of fiber evidence will be indispensable to the criminal lawyer of the future. With study and the assistance of an expert, a lawyer will be able to understand and effectively present or attack fiber evidence.
To the uninformed, a fiber is a simple object to contemplate; it has certain color, texture, and dimensions. The textile engineer or forensic scientist, however, can glean a wealth of information from a single fiber. Much of this information can be utilized in a criminal case.
The information to be obtained from a fiber can be broken down, from the more obvious characteristics that can be observed by the naked eye (macroscopic examination) to those that can be ascertained only by using sophisticated scientific tools, such as comparison microscopes, polarization techniques, monochromators, microspectrophotometers, and spectral data processors.
Macroscopic examination can reveal the type of fiber and the number of different classes of fiber present in the material and may exclude certain fibers as components of the material. Such an exam may also reveal whether the material is comprised of more than one type of fiber.
Fibers can be further examined microscopically. Microscopic examination will reveal characteristics such as surface scales, cross-markings, swelling, twists, or relatively smooth surfaces. Cross sectional examination reveals the contour of the fiber and pigment distribution.
Fibers are composed of either “natural” animal or vegetable material, and can be further broken down as shown in Table I.
Other information can be gleaned from the way in which fibers are spun, dyed, or woven. Different spinning procedures produce at least 15 types of yarn. Diverse weaving techniques produce at least 42 variations.
Several finishing techniques are used on fabrics and fibers, imparting different finishes and chemicals to the fibers. The numerous techniques by which fabrics, both natural and synthetic, are made can leave a fiber with such an infinite number of characteristics that its signature, vis-à-vis the signature of another fiber, can be narrowed down to a virtual certainty.
The Williams case is exemplary of how fiber evidence will be relied upon in the future and how best to utilize or confront it.
According to Larry K. Peterson, the forensic chemist for the Georgia Bureau of Investigation (GBI) Crime Laboratory, and Gordon H. Miller, the Fulton County (Georgia) Assistant District Attorney who handled the scientific aspects of the case, the case was prosecuted successfully largely as a result of fiber evidence. Peterson based his initial premise on the fact that every person’s environment contains a set of fibers that are statistically unique. Williams was convicted because fibers found on the bodies of several victims matched fibers that were present in his environment: a green carpet and bedspread in his home; the carpet in his Chevrolet station wagon; and several other fibers.
The story of how the fibers were used is fascinating and demonstrates the impact that this forensic technique will have in future criminal litigation. Particularly because there were no eyewitnesses, no apparent motives, and no concrete “leads,” authorities searched the skin, hair, and clothing of each new victim discovered for fibers. Scotch tape, tweezers, vacuums, and other methods produced the fibers. Some of these fibers were even found in the hair of victims who had been floating in the Chattahoochee River for several weeks.
An unusual green fiber, trilobal in shape, and determined to be a carpet fiber, was found on several victims. The carpet fiber in question was extremely rare, making the initial identification difficult, but the unusual fiber worked to the advantage of the prosecution because few households would own a carpet containing such a rare fiber. Had the fiber recovered been a common one, such as white cotton, the evidence would have been virtually useless. Federal Bureau of Investigation (FBI) and GBI agents scoured textile manufacturing concerns to determine who had made the fiber. The fiber was similar to a patented DuPont design, but was finally traced to the Wellman Corporation and to a West Point Pepperell mill in Dalton, Georgia, that had manufactured a limited quantity of green carpet using the unusually shaped fiber. West Point Pepperell had maintained sales records, and it was determined that one out of every 8000 homes in the Atlanta area had one room of green carpet containing the Wellman fiber.
Fibers from a Chevrolet station wagon carpet were found on several corpses. Peterson determined which vehicle identification numbers corresponded to the type of carpet fiber found and determined that one in every 3800 automobiles in the Atlanta area contained the carpet. The Williams station wagon was on the list. Other fibers matching Williams’ bedspread (a flammable acetate fiber, not used in bedspreads for ten years) were found on several bodies. Because the fibers were found all over some of the victims‘bodies, it was determined that: they died in Williams’ parents’ house; they were wrapped in the bedspread; and they were transported supine in the Chevrolet station wagon. Peterson and Miller theorized that the fibers recovered matched the last environment of the victims.
The statistics developed by Peterson and his associates at the GBI crime lab were devastating to the defense. The jury must have concluded that if one in 3800 people owned a car containing the incriminating carpet and only one in 8000 owned the green room carpet, and if Williams owned a ten-year-old bedspread with the correct fibers, he had to be the killer. To some jurors, the statistics alone proved him guilty beyond a reasonable doubt. (The practitioner confronted with such statistics should hire a statistician as an expert witness and study the available articles dealing with the problem of overcoming the misuses of statistical data.)
Using sophisticated scientific instruments and techniques, Peterson compared and matched fibers from the Williams house with fibers recovered from the children’s bodies. Mr. Peterson expected such a match because of the “exchange” principle. This type of evidence can be used in rape and other cases because of the same principle. When people touch other objects containing fiber, the fibers are exchanged in much the same way as paint is exchanged in a collision between cars of different colors. One car leaves its paint on the other.
Fiber evidence can, of course, be used in many types of cases. Microscopic comparison between fibers on the suspect and those obtained from the scene of the crime or victim may be compared. Such evidence is especially useful in crimes of close contact, such as rape, but may also be used in a variety of other offenses. Unfortunately, as a scientific tool, the probative value of this evidence for the defendant is limited. The fact that no matching fibers are found does not demonstrate innocence. As so well stated by Wayne Williams’ defense lawyer, Alvin M. Binder, “Fiber evidence is a one-way ticket to hell for the criminal defendant.” Nevertheless, creative defense lawyers can seek ways to use fiber evidence as a defensive tool.
The emerging trend in federal and state judicial systems toward the liberalization of the standards for admitting scientific evidence is well documented. In the future, the practitioner can anticipate more frequent use of fiber evidence in criminal trials.
If the courts are going to admit such scientific evidence more liberally, criminal defense advocates must educate themselves in these technical fields in order to critically evaluate and negate the weight of the technical proof.
“Slow Strangulation” of the Exclusionary Rule
One does not need prophetic powers to predict further erosion, and possibly annihilation, of` the exclusionary rule. The handwriting has been on the wall during the entire tenure of the Burger Court, and the issue may well be decided before the conclusion of the October 1983 term. The ultimate determination will have a tremendous impact on the future practice of criminal law and procedure.
The Supreme Court established the exclusionary rule in 1914 in Weeks v. United States to safeguard rights guaranteed by the Fourth Amendment. The rule enunciated in Weeks prohibited the use of evidence obtained by federal agents in violation of the Fourth Amendment’s proscription against illegal searches and seizures. In Mapp v. Ohio, the high court extended the rule to state court proceedings by holding that failure to exclude illegally obtained evidence in state courts violated the Fourteenth Amendment.
The justification underlying the adoption of the exclusionary rule was two-fold:
1) the imperative for judicial integrity, i.e., courts cannot condone lawless invasions of constitutional rights; and
2) the deterrence of unlawful police conduct.
The controversial rule has been continually under scrutiny since its inception, and subsequent to Mapp the Court began to retreat by limiting its application and scope. In United States V. Calandra, the Court permitted the use of illegally obtained evidence in grand jury proceedings. Although United States v. Simmons held that testimony elicited during a hearing on a motion to suppress is not admissible against a defendant at trial, in United States v. Havens the Supreme Court approved the use of illegally obtained evidence to impeach the credibility of a witness. The Supreme Court further limited the application of the exclusionary rule in United States v. Janis by allowing the use of illegally seized evidence in a federal civil proceeding.
In United States v. Peltier, the Supreme Court fashioned the final and most extensive limitation on the exclusionary rule. Denominated as the “good faith exception,” the Court allowed admission of evidence obtained from an officer’s search and seizure, where the officer conducted the search in good faith reliance that the evidence seized was admissible at trial. Peltier involved a warrantless search of an automobile conducted pursuant to a validly enacted statute permitting such searches. Prior to the decision in Peltier, but subsequent to the search, that statute was invalidated. The Supreme Court allowed the use of the evidence, reasoning that the “imperative of judicial integrity” was not offended by the introduction of the evidence. Thus, a technical Fourth Amendment violation was cured by the “good faith exception”.
In his dissent in Peltier, Justice Brennan opined that the majority opinion would result in the “slow strangulation” of the exclusionary rule: “I have no confidence that the new formulation is to be confined to putative retroactivity cases. Rather, l suspect that when a suitable opportunity arises, today’s revision of the exclusionary rule will be pronounced applicable to all search and seizure cases.”
The following year, in Stone v. Powell, the Court refused to apply the exclusionary rule in federal habeas corpus proceedings where a state prisoner had been afforded full consideration of the rule by state courts at trial and on direct review. Significantly, in his dissent in that case, Justice White proposed two criteria for the admissibility of illegally seized evidence: a subjective test that the officer acted with the good faith belief that his conduct was legal; and the objective test that the officer had a reasonable basis for such a belief.
The Fifth Circuit Court of Appeals en banc decided the first case expressly applying the good faith exception to the exclusionary ruIe—United States v. Williams. The Court held that evidence should not be suppressed under the exclusionary rule when discovered by officers who have a reasonable, good faith, though mistaken belief that their actions are authorized. The “good faith exception to the exclusionary rule,” as described by Justice White in dicta in Stone v. Powell, and Justice Brennan’s admonition in Peltier may soon become binding precedent in a case presently before the high court, Illinois v. Gates. This case not only presents an issue that is critical to the future practice of criminal law, but also involves a fascinating study of the mechanism by which the Supreme Court found its “suitable opportunity” to reach the issue.
In Gates, certiorari was originally granted to determine whether or not the Supreme Court of Illinois correctly decided the only federal question presented to it: Does the Fourth Amendment prohibit a magistrate from issuing a search warrant based on the type of affidavit filed by an officer in that case? Subsequently, the state of Illinois filed a motion seeking leave to enlarge the question presented for review: Assuming arguendo that the search warrant was defective, should the evidence obtained nevertheless be admitted at trial because “the police acted in a reasonable, good faith belief in the validity of the warrant?” The Court unanimously denied the motion. In October 1982, the parties presented oral argument on the sole issue originally before the Court. In November the case was returned to the calendar for reargument, and the parties were directed to address the question whether the exclusionary rule should be modified so as “not to require the exclusion of evidence obtained in the reasonable belief that the search and seizure at issue was consistent with the Fourth Amendment.”
Justice Stevens filed at strong dissent, joined by Justices Brennan and Marshall. The dissenters opined that the per curiam order was inconsistent with the Court’s settled practice of not permitting a party to advance a ground for reversal that was not presented below. “[T]he action [the Court] takes today sheds a distressing light on the Court’s conception of the scope of its powers.”
The Court rendered its startling decision on June 8, 1983. Justice Rehnquist, writing for majority, deferred to the dissenters to the per curiam order and “with apologies to all” decided that the issue of a reasonable belief exception to the exclusionary rule, which the High Court itself had “framed for the parties,” was not presented to the Illinois courts below and therefore could not now be addressed.
The remainder of the opinion, however, was certainly not as lackluster as its inauspicious beginning. Although the Court refused to address the anticipated “good faith” exception issues, it nevertheless dramatically modified the practice of criminal law by rejecting the two-pronged Aguilar—Spinelli test to determine whether an affidavit in support of a warrant contains sufficient information to support a determination of probable cause.
The two-pronged test, the majority stated, “directs analysis into two largely independent channels—the informant’s ‘veracity’ or ‘reliability’ and his ‘basis of knowledge.’ There are persuasive arguments against according these two elements independent status. Instead, they are better understood as relevant considerations in the totality of circumstances analysis that traditionally has guided probable cause determinations. The Court abandoned the “two-pronged test” established in Aquilar and Spinelli. “In its place we affirm the totality of the circumstances analysis that traditionally has informed probable cause determinations.” Thus, although modifying the standard that a magistrate must apply in deciding whether probable cause to issue a warrant exists, the Court has yet to address the critical issue of the “good faith” exception to the exclusionary rule.
Critics of the exclusionary rule will argue that it impedes the search for truth in that it bars the admissibility of reliable and probative evidence. More significantly, it allows the criminal to go free because of a blunder by the authorities. However, applying the good faith exception raises numerous practical problems. A police officer need only claim that he or she acted in good faith, and the court need only find that belief to be reasonable. Neither “good faith” nor “reasonable belief” are easily capable of objective definition. Thus, we are left with an undefined standard that may require years of litigation before proper guidelines are established. If the Supreme Court were to adopt a per se good faith exception to the exclusionary rule, we may well see the exception swallow the rule, and with that the destruction of our only viable Fourth Amendment safeguard.
Who Will Have Standing to Complain?
Until recently, under Jones v. United States, any individual charged with a crime of possession automatically had standing to object to a Fourth Amendment violation. This was logical because it appeared contradictory for the government to be allowed to argue on the one hand that the defendant possessed the substance and, as to the accused’s standing, claim he or she had no privacy interest in it.
In Rakas v. Illinois, the U.S. Supreme Court found that the Jones standard created too broad a gauge for measurement of Fourth Amendment rights and that the courts must engage in a conscientious effort to apply the Fourth Amendment by asking not merely whether the defendant had a possessory interest in the items seized, but whether the defendant had an expectation of privacy in the area searched.
In United States v. Salvucci, the court overruled the automatic standing rule in Jones, again holding that defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated.
Finally, in Rawlings v. Kentucky, the court stated that ownership of goods seized is only one fact to consider, but that alone does not confer standing. The test is whether the person had a legitimate expectation of privacy.
Increasingly stringent standing requirements have further eroded the exclusionary rule. Proving standing is the first thing the defense lawyer must do; standing must be established before the rule can be invoked. Although the Supreme Court established the standard in Rakas, Salvucci, and Rawlings, state courts are not bound by the standing limitation imposed on the federal courts. This will be a continuing problem in the future and will further destroy Fourth Amendment protections under the exclusionary rule.
How does the practitioner establish a client’s standing to complain of a Fourth Amendment violation? To demonstrate the requisite “Iegitimate expectation of privacy,” often the defendant must testify at a hearing on the defendant’s motion to suppress. This often poses a dilemma for defense counsel. Most defendants will resist testifying, which means admitting their interest in the contraband, but failure to do so may result in an inability to claim a Fourth Amendment violation. Moreover, although the defendant’s testimony at a suppression hearing cannot be used during the government’s case-in-chief, it may be used for impeachment purposes. The testimony might be allowed in collateral state criminal proceedings; the law on this point is not yet well defined. Thus, the standing dilemma will continue to plague the practitioner as it further limits the exclusionary rule.
Electronic Surveillance
The Supreme Court is presently considering a critical question in the area of electronic surveillance: Does the warrantless monitoring of an electronic tracking device (beeper) to aid in locating the manufacture of illegal drugs violate the Fourth Amendment? The Circuit Courts of Appeal and the state appellate courts have been hopelessly divided on this issue, and this term of the high court should clarify the question of whether Fourth Amendment rights attach in the use of such surveillance equipment.
On March 2, 1983, the U.S. Supreme Court held in United States v. Knotts that monitoring of the signal emanating from an electronic tracking device did not invade any legitimate expectation of privacy and thus was neither a “search” nor a “seizure” within the contemplation of the Fourth Amendment. In Knotts, law enforcement officers who had reason to believe that the defendant was purchasing chloroform to be used in the manufacture of illicit drugs arranged with the chloroform seller to place a “beeper” inside the container sold to the defendant. Officers then followed the car in which the chloroform was placed and ultimately traced the chloroform by beeper monitoring alone, to a secluded cabin. They then obtained a search warrant and discovered a clandestine laboratory where the defendants manufactured amphetamines. Unlike many prior “beeper” cases decided by the various Circuit Courts of Appeal, the defendant in Knotts challenged only the monitoring of the beeper, not whether the original installation violated Fourth Amendment protections. Thus, while the Court held that monitoring the beeper signals did not invade any legitimate expectation of privacy, they did not reach the critical issue of the propriety of the installation. Thus, the Circuit Courts of Appeal’s decisions remain in conflict in this regard.
Computer Crimes
With the proliferation of computers in our society, and the public’s continued education in that field, one can expect an increase in computer crimes. The computer has been used to aid in the perpetration of complicated financial swindles, embezzlement, and even theft of computer data, but the age of computers has only just begun. In the future, the practitioner may well confront computer-related cases; therefore, a basic understanding of this specialized field will be necessary.
Conclusion
It is obvious that the criminal trial lawyer will face many changes in the months and years ahead. Reshaping the criminal law may prove dramatic and far-reaching. The practitioner must be prepared to face this new era with all of his or her energy and ingenuity.
