Criminal Law

A body of rules and statutes that defines conduct prohibited by the government because it threatens and harms public safety and welfare and that establishes punishment to be imposed for the commission of such acts.

Whorton v. Bockting

The U.S. Supreme Court periodically announces a new rule of criminal law or procedure that could affect thousands of persons previously convicted under the old rule of law. The Court has established standards for determining whether those previously convicted, and whose direct appeals had been exhausted before the date of the ruling, may seek to reverse their convictions. The Supreme Court, in Whorton v. Bockting, __U.S.__, 127 S.Ct. 1173, __L.Ed.2d __ (2007), held that a 2004 rule dealing with the Sixth Amendment's Confrontation Clause was not a "watershed rule" that implicated the fairness and accuracy of criminal proceedings. Therefore, those persons convicted under the old rule could not collaterally attack their convictions using the new rule.

Marvin Bockting collaterally attacked his conviction for the sexual assault of the six-year-old daughter of his wife. Bockting and his wife Laura lived in Las Vegas, Nevada with their three-year-old daughter Honesty and Laura's daughter Autumn. Autumn told her mother that Bockting had forced her to engage in numerous sex acts with him. Laura kicked Marvin out of the house and took Autumn to the hospital for a physical examination. The Las Vegas police de-partment's investigator for sexual assaults tried to interview Autumn but found her too upset to talk about the assaults. The officer then ordered a rape examination, which revealed strong physical evidence of sexual assault. Two days later the investigator interviewed Autumn in the presence of her mother. This time she gave detailed descriptions of the sexual assaults committed by Bockting. The police then arrested him for sexual assault. At the preliminary hearing Autumn testified but she became upset when asked about the assaults. She first said that Bockting had touched her in way that was wrong but then backtracked, saying she couldn't remember how he had touched her or what she had told the mother or the investigator. The court was persuaded by the testimony of the mother and the investigator to hold Bockting for trial.

At trial the judge determined that Autumn was too distressed to testify. Under Nevada state law the judge found sufficient evidence of reliability to allow the investigator and Laura Bockting to recount Autumn's statements. Marvin Bockting's lawyer had objected, arguing that the Confrontation Clause barred the admission of this evidence. The defendant took the stand in his own defense and denied that he had assaulted Autumn. He claimed that Autumn had acquired some knowledge about sexual acts because she had seen him and her mother engaging in sexual intercourse and had become familiar with sexual terms. The jury convicted Bockting on three counts of sexual assault on a minor under the age of 14 and he was given a life sentence.

Bockting's conviction was upheld by the Nevada Supreme Court in 1993. The court applied a U.S. Supreme Court precedent concerning the admission of out-of-court statements. This precedent held that the Confrontation Clause permitted the admission of a hearsay statement where the circumstances surrounding the making of the statements provided "particularized guarantees of trustworthiness." The Nevada Supreme Court believed Autumn's initial statements to her mother, her recitations to the investigator, and her use of anatomically correct dolls to demonstrate the assaults justified the admission of the statements. Bockting then filed for a writ of habeas corpus in federal court, again arguing that the state court decision violated his Confrontation Clause rights. The district court rejected his argument and Bockting appealed to the Ninth Circuit Court of Appeals. While his appeal was pending the Supreme Court overruled its Confrontation Clause precedent in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Court held that "statements of witnesses absent from trial" were admissible "only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine [the witness]." Bockting argued to the Ninth Circuit that if Crawford had been applied to his case Autumn's out-of-court statements would not have been admitted and the jury would not have convicted him. The Ninth Circuit ruled that Crawford could be applied retroactively to cases on collateral review and granted Bockting his petition. The Supreme Court agreed to review this decision because it conflicted with every other circuit court of appeals and every state supreme court that had addressed the issue.

The Court, in a unanimous decision, reversed the Ninth Circuit. Justice Samuel Alito, writing for the Court, noted that the Court had laid out a framework for determining whether a rule should be applied retroactively to judgments in criminal cases that are already final on direct review. A new rule is generally applicable only to cases that are still on direct review. In this case Crawford was a new rule because "it was not dictated by the governing precedent at the time when the respondent's conviction became final." Having established that Crawford was a new rule, Alito stated that under the framework the rule cannot be applied to a collateral attack on a Bockting's conviction unless it is a "watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Since the framework had been established no new rule had achieved watershed status.

The Crawford rule failed to satisfy the requirement that it prevent an "impermissibly large risk of an inaccurate conviction." It was not enough if the rule improved the accuracy of trial or enhanced the reliability of evidence. In this case Crawford had overruled the prior precedent because the old rule was "inconsistent with the original understanding of the meaning of the Confrontation Clause." The Court did not make the new rule to improve the "accuracy of fact finding in criminal trials. The Crawford rule also did not change the Court's "bedrock procedural elements essential to the fairness of a proceeding." A new procedural rule could not meet this requirement if it was based on a "bedrock" right. Though this new rule was "certainly important" it did not approach the establishment of the right of indigents charged with felonies to have a court-appointed lawyer announced in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Therefore the new rule in Crawford could not be applied to Bockting's case.

Law Enforcement Using YouTube to Catch Criminals

Law enforcement officials in some areas are taking advantage of the popularity of online video sites, such as YouTube, to catch criminals. These officials post such information as the clips of surveillance cameras, and then send the link to groups of people who might be able to identify suspects that have been captured on the video. In some instances, several thousand people have seen the video clips, and the tactic has led to successful arrests.

The founders of YouTube launched the site in February 2005, and it was an instant hit on the Internet. The site allows user to upload video clips, which are then processed and converted to a format that can be seen on most Web browsers. By some estimates, the site has more than 70 million unique viewers per day. YouTube became so popular that Internet giant Google bought the company in October 2006 for $1.65 billion. Dozens of clone sites have also popped up on the Internet since the birth of YouTube.

Postings of mug shots and other pictures of suspects for the public to see is, of course, a tactic long used by law enforcement. It is also common for police to share videos and photos between departments. However, broadcasts of these videos and photos on the Internet has not been a common practice. In such places as Franklin, Massachusetts, which has a population of about 30,000, the Internet can broaden the range of people who might be able to identify suspects in videos shot by security cameras.

In December 2006, the Franklin police department posted on YouTube one of these videos showing two suspects in a stolen credit card case. The clip shows the two men standing in line at a Home Depot less than an hour after stealing a credit card from a car parked outside a fitness center. The faces of the two men are not clear on the 30-second clip, but it provides enough detail that the men are identifiable. After posting the clip, officers emailed the link to the clip to about 300 people and organizations, indicating that the department sought these men in connection with the crime.

"You don't have to be a technology wizard to figure out how to watch a video on YouTube," said officer Brian Johnson of the Franklin Police Department. He also noted, "You never know who is going to say, 'Hey, I know that guy."' The suspects in the case were ultimately arrested, though officers credited old-fashioned police work for the capture.

Franklin's use of the Internet in that case was relatively small-scale compared with departments elsewhere. In Hamilton, Ontario, offices posted a 72-second surveillance video on YouTube after a fatal shooting outside of a hip-hop concert. The clip attracted about 35,000 hits, and the police had enough information within two weeks to arrest a suspect. A detective working on the case sought to increase awareness by placing an announcement on websites that are visited by hip-hop fans. According to the detective, "We hoped there would be enough buzz created that people on their own would go to YouTube."

YouTube allows officers to post a description of the scene on the site, along with the telephone number of the department. In a video posted by the Billerica, Maine police department, the clip contains the following description: "Suspects smash the front window of the convenient store and steal some beer. Incident occurred on 3/14/07 in Billerica, MA. This appears to be very similar to another incident which occurred on 12/25/06 of last year. We believe the vehicle to be a dark Toyota Matrix or similar small wagon. Anyone who may know anything about the suspect sin the video, please call the Billerica Police Department…."

Despite the promise, some commentators have expressed concern about the use of sites such as YouTube for these purposes. A video that is viewed by several thousand people might lead to numerous false leads, thus hampering the ability of police officers to track down legitimate leads. One detective noted, "There is a concern that if we use this option often that we would unnecessarily tie up our investigators who'd be looking into hundreds or thousands of leads that would be produced." Others have expressed privacy concerns. For instance, some have noted that victims and innocent bystanders should consent before the videos are posted. Similarly, some experts have said that the videos should be removed once the court proceedings have closed.

One irony in the use of the videos is that police are using a medium that has been employed to demonstrate police misconduct. Some groups and users use YouTube and other sites to post videos showing instances of police abuse or excessive force. In one instance, a clip on YouTube showed an officer punching a suspect repeatedly in the face, prompting an investigation by the Federal Bureau of Investigation.

A growing number of departments now consider YouTube as one of many options that may be used during investigations. Departments are also using other popular sites for a similar purpose. For example, social networking sites such as MySpace have been used to benefit investigations due to the type of information that can be exchanged there.