Evidence Codification and Non-Codification in Connecticut

Evidence codification has an unusual status in Connecticut. In a case said [in Westlaw's text] to be decided on August 19, 2008 -- in State v. DeJesus --- A.2d ----, 2008 WL 3290164 (2008) -- the Supreme Court of Connecticut writes [will write?]:

"With respect to the defendant's appeal, we conclude that, despite the adoption of the code [of evidence] by the judges of the Superior Court, the appellate courts of this state retain the authority to develop and change the rules of evidence through case-by-case common-law adjudication."

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"We agree with the defendant that the adoption of the code did not divest this court of its inherent common-law adjudicative authority to develop and change the rules of evidence on a case-by-case basis. We further agree with the defendant that, in light of our recent clarification of the nature and scope of the common scheme or plan exception in State v. Randolph, supra, 284 Conn. at 328, evidence of uncharged misconduct admitted under the liberal standard ordinarily does not reflect the existence of a genuine plan in the defendant's mind. Nonetheless, given the highly secretive, aberrant and frequently compulsive nature of sex crimes, we conclude that the admission of uncharged misconduct evidence under the liberal standard is warranted and, therefore, we adopt this standard as a limited exception to § 4-5(a) of the code, which prohibits the admission of "[e]vidence of other crimes, wrongs or acts of a person ... to prove the bad character or criminal tendencies of that person."

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"The foregoing history [of the adoption of the code of evidence by the judges of Connecticut's Superior Courts] does not support the conclusion, however, that the code was intended to divest this court of its inherent authority to change and develop the law of evidence through case-by-case common-law adjudication."

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"There was no discussion of the effect, if any, that adoption of the code would have upon this court's common-law adjudicative authority to change and develop evidentiary law on a case-by-case basis, an inherent authority that it has enjoyed since the seventeenth century.

...

"In the absence of any discussion at the meeting of the judges of the Superior Court concerning the impact that adoption of the code would have on the future development of evidentiary law, it is illogical to conclude that, by adopting the code for the purposes of ease and convenience, the judges intended to divest this court of its long-standing inherent common-law adjudicative authority over evidentiary law." &&&

In a footnote the Supreme Court dealt with the question whether Connecticut's code of evidence prevents Connecticut's trial judges from changing rules of evidence in case-by-case adjudication:

"FN24. Because the code merely restated the prevailing common-law evidentiary rules, which the judges of the Superior Court already were bound to apply, and was intended to expedite and streamline judicial proceedings by serving as a shorthand reference to those rules, the code clearly was intended to be binding authority in the Superior Court. Section 1-1(b) of the code specifically states that '[t]he [c]ode applies to all proceedings in the superior court in which facts in dispute are found, except as otherwise provided by the [c]ode, the General Statutes or the Practice Book.' The code therefore differs fundamentally from a treatise or handbook, which has persuasive value only. The question presented in this appeal, however, is not whether the code is binding authority in the Superior Court, but, rather, whether it is binding authority in this court such that we are precluded from reconsidering our own prior precedent codified in the code. For the reasons explained in the body of this opinion, we conclude that the judges of the Superior Court did not intend their adoption of the code to divest this court of its inherent authority to change and develop the law of evidence via case-by-case common-law adjudication."

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Questions about the Bruce Ivins Anthrax Case

Dr. Gerry Andrews, a professor of microbiology, raises some interesting questions about the evidence against his former colleague, Dr. Bruce Ivins, the suspected "anthrax killer" who recently committed suicide. See Gerry Andrews, "Open Questions on a Closed Case" (Op-Ed), NYTimes Online (August 9, 2008). Of particular interest to me are several questions that Dr. Andrews raises about the scientific evidence in the case.

The US attorney supervising the investigation and other government agents spoke about the "match" between the anthrax that killed the five victims and the anthrax that had been in Ivins' possession. One government agent -- I believe it was the the US attorney who held the news conference about the impending closing of the case -- even said that the government had located the "murder weapon," the flask containing the lethal anthrax that, it was said, killed the five victims.

Although I have no reason to doubt that the federal government has (finally) fingered the right (dead) man, one must always be suspicious when there is talk about a "match." The word "match" implies evidence that uniquely identifies the thing (or, worse yet) person who left some trace at the crime scene. Dr. Andrews points out several circumstances and considerations that raise questions about the government hypothesis that the scientific evidence in the case points uniquely to Bruce Ivins as the culprit. He makes his point this way:

As a scientist, ... I feel compelled to comment on what should have been the Federal Bureau of Investigation’s strongest link between Dr. Ivins and the terrible crime — deadly anthrax spores. In the summary of its findings, the F.B.I. states that investigators used four different genetic techniques to match the anthrax-laced attack letters to a unique DNA footprint of a single anthrax spore preparation in one flask that had been in Dr. Ivins’s custody.

Sounds reasonable. Yet the investigators present no details on the scientific methods they used to make this match or how they employed them. That’s a problem, because without such detail it is hard to tell if they specifically ruled out a similar match between the anthrax in the letters and anthrax preparations with the same DNA footprint kept at a number of other labs around the country.

For good measure, Dr. Andrews points out how "non-scientific" questions about the custody of the "murder weapon" raise additional doubts about the strength of the scientific evidence against Ivins. Andrews begins by noting that "Dr. Ivins was an investigator in the case before he was a suspect. After the anthrax attack, Dr. Ivins himself worked directly with the evidence. The F.B.I. asked Dr. Ivins to help them with the forensics in the case by analyzing the contents of suspicious letters. And he did so for years, until the authorities began to suspect that the anthrax spores used in the mailings might have originated from his lab." Dr. Andrews argues that the lab at which Ivins worked did not have the capacity to produce the "refined weapons-grade anthrax" that had been used to kill the five victims. Dr. Andrews then adds:

But even leaving that aside, there are important questions left unanswered. First, isn’t it possible that the manipulation of the contents of the anthrax letters in Dr. Ivins’s laboratory might have contaminated the work environment enough to potentially jeopardize the integrity of subsequent samples taken from the lab? Might that perhaps explain why the anthrax powder used in the attacks was later found to have the same DNA footprint as the other anthrax preparations in Dr. Ivins’s lab? At the very least, wouldn’t this call his guilt into doubt?

These are the sorts of questions -- e.g., the degree to which the DNA of the physical sample found at the scene of the crime together with the DNA of a specimen found elsewhere is a distinctive identifier of the physical source of the crime scene specimen, the possibility of contamination of the physical evidence found either at the scene of the crime or elsewhere, the availability of the possible instrumentality of the crime (in this case the "murder weapon") to persons other than a specific suspect, -- these are the sorts of questions that have emerged in innumerable "humdrum" murder and rape cases. Despite the new scientific techniques that are said to have been developed during the investigation of the anthrax case, these sorts of issues are pertinent in the Ivins anthrax case as well in humdrum murder and rape cases. We should avoid being unduly dazzled by novel scientific methods or technology. We must always keep in mind what sorts of questions a powerful scientific method can answer and what sorts of questions it cannot answer.

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