Friday, November 30, 2007

U.S. v. Brooks, No. 05-30261 (11-29-07). Vouching is bad. The 9th counts the ways in this opinion, although it finds such bolstering ultimately harmless. Still, this is an interesting and useful opinion. The 9th (Guilford joined by Kozinski and Fischer) unequivocally states that the usual questions of a cooperating witness about why they have to tell the truth (i.e. "because I promised and if I lie, the AUSA will tear up the plea and I'll do more time") is vouching and impermissible. This mild form was cured by the court's curative instructions about cooperating witnesses and the overwhelming guilt. The overwhelming guilt (i.e. lack of prejudice) also plays into the excusing the more serious form of vouching that occurred when the government bolstered its wiretap evidence by eliciting testimony about how DOJ and the courts had to approve such an application. This gave the impression that the defendant was guilty as determined by the agency and court. Again, this is excused only because of the overwhelming evidence.
U.S. v. Kriesel, No. 06-30110 (11-29-07). The 9th (McKeown joined by Scwarzer) holds that the amendment that allows DNA collection from all felons on supervised release, even those with nonviolent offenses, passes constitutional muster. The 9th looks to the need to monitor the supervisees, combat recidivism, and the diminished expectation of privacy. Mainly though, according to B. Fletcher in dissent, the 9th permits it with a "shrug of inevitability." B. Fletcher worries that DNA collection does invade privacy and the breach serves no overriding government purpose given that the defendant here is nonviolent (drug offense) and the record does not support such a need.


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