The Latest Intimations from on High about the (Lack of) Implications of Due Process for Pretrial Investigation

In District Attorney's Office for the Third Judicial District v. Osborne, No. 08–6. (June 18, 2009), the Court, dealing with and rejecting a claim of a due process violation for denial of post-conviction access to DNA evidence, said (5-4):

Establishing a freestanding right to access DNA evidence for testing would force us to act as policymakers, and our substantive-due-process rulemaking authority would not only have to cover the right of access but a myriad of other issues. We would soon have to decide if there is a constitutional obligation to preserve forensic evidence that might later be tested. Cf. Arizona v. Youngblood, 488 U. S. 51, 56–58 (1988). If so, for how long? Would it be different for different types of evidence? Would the State also have some obligation to gather such evidence in the first place? How much, and when? No doubt there would be a miscellany of other minor directives. See, e.g., Harvey v. Horan, 285 F. 3d 298, 300–301 (CA4 2002) (Wilkinson, C. J., concurring in denial of rehearing).

I cannot think of a single significantly-new interpretation of the Constitution that did not require federal courts to issue a "miscellany of minor directives" that give flesh to the new Constitutional principle laid down by the Court. Consider, for example, the multitude of questions that were left unanswered by this very Court in Crawford v. Washington, 541 U.S. 36 (2004). An army of legal scholars, trial lawyers, and judges has been hard at work trying to divine what Crawford requires in a myriad of situations.

On the merits: Arizona v. Youngblood is a lamentable decision that should be overruled. Reason: factfinding accuracy in the criminal process depends on effective pretrial investigation more than on any other single factor except perhaps money.


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The dynamic evidence page
Coming soon: the law of evidence on Spindle Law

Some Japanese Legal Professionals Have Great Expectations for Japan's New "Lay Judge" System

Japan Times Online reports that some Japanese legal observers believe that the participation of lay people in criminal trials will reduce the frequency of factfinding errors. An extract from the article:

Toshikazu Sugaya spent 17 years in prison after being convicted of kidnapping and murdering a 4-year-old girl in Ashikaga, Tochigi Prefecture, in 1990 but was freed this month after recent tests indicated his DNA did not match traces found on the victim's clothing. Initial tests had led to his getting a life sentence.

But having lay judges, or "saibanin," participate in the criminal trial to weigh the evidence and reach a verdict should lead to fewer miscarriages of justice, because the fresh eyes of the public will be involved in the trial process and they will try to do the right thing, the lawyers said.

"I can't say firmly that lay judges could have prevented Sugaya's conviction, because forensic evidence and a confession were submitted, and there is no proof the lay judges would not have been swayed into believing them," Makoto Miyazaki, president of the Japan Federation of Bar Associations, said at the Foreign Correspondents' Club of Japan in Tokyo.

[snip,snip]

Satoru Shinomiya, a lawyer and professor at Kokugakuin University law school, said the courts failed to listen to Sugaya's attorneys, who argued that the accuracy of the early DNA tests were problematic because the sample was collected long after the crime and was not properly stored.

"If the lay judges had been there, at least they would have listened to the argument carefully," Shinomiya said.

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The dynamic evidence page

Coming soon: the law of evidence on Spindle Law